R v Dickson - [2019] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DICKSON
Criminal Trial by Judge Alone
[2019] SADC 4
Reasons for the Verdict of His Honour Judge Millsteed
22 January 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - accused charged with aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA) - whether complaint of sexual offence admissible under s 34M of Evidence Act 1929 (SA) - whether accused suffered forensic disadvantage under s 34CB(1) of the Evidence Act 1929 (SA) - whether complainant's account could be accepted beyond reasonable doubt - verdict: guilty.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(i), s 20(1), s 56(1) s 56(2), s 57(2); Evidence Act 1929 (SA) s 34CB(1), s 34CB(2), s 34M, s 34P s 34P(1), s 34P(2), referred to.
Kilby v The Queen (1973) 129 CLR 460; Jones v R (1997) 143 ALR 52; R v S, DD (2010) 109 SASR 46; R v Usher (2014) 119 SASR 22; Woolmington v DPP [1935] AC 462; Moffa v The Queen (1977) 138 CLR 601; Howe v The Queen (1980) 32 ALR 478; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Nisbett [1953] VLR 298; R v Court [1989] AC 28; Harkin v R (1989) 38 A Crim R 296; Drago v R (1992) 8 WAR 488; R v C, M (2014) 246 A Crim R 21; Longman v The Queen (1989) 168 CLR 79; R v Bakhuis (2012) 112 SASR 536; Edwards v R (1993) 178 CLR 193; Douglass v R (2012) 290 ALR 699; R v Calides (1983) 34 SASR 355; Palmer v R (1998) 193 CLR 1; R v N [2004] SASC 409; R v Van Der Zyden (2012) 261 FLR 419; R v Schlaeffer (1984) 37 SASR 207; R v Pitman (1985) 38 SASR 566; R v Baltensperger (2004) 90 SASR 129; R v B, P [2006] SASC 229, considered.

R v DICKSON
[2019] SADC 4
Introduction

The accused, Brenton Dickson, was tried before me sitting without a jury on an Information that charged him with aggravated indecent assault, contrary to s 56(1) of the Criminal Law Consolidation Act 1953 (SA). The offence is alleged to have been committed in 2007 at the Salisbury Park Primary School where the complainant (S) was a student and the accused held the position of Director of the Out-of-School Hours Care program (OSHC). The prosecution contended that on an afternoon when S was in the accused’s care after school had finished for the day, he placed his hands underneath her top and touched her breasts. The offence is said to have been aggravated by two factors: first, the accused abused a position of trust; and second, S was under the age of 14 years at the time. The accused denied committing the offence.
Following counsels’ closing addresses, I reserved my verdict which I now deliver. I find the accused guilty for the reasons set out herein.
The trial
The prosecutor, Ms G Spencer, called the complainant S and the following witnesses: K (complainant’s mother) and P (complainant’s friend). The accused was represented by Mr M Mead of counsel. The accused gave evidence. No other witnesses were called by the defence. The oral evidence was supplemented by the tender of various documentary exhibits including a set of agreed facts, Exhibit P7.
Prosecution case
Background
S was born on 28 May 1997. She was 20 years of age at the time of trial. At the time of the relevant events S lived with her parents and two siblings, an older brother (B) and younger sister. She attended the Salisbury Park Primary School from Reception until she completed year 7 in 2010. In 2007 S was in year 4 and her brother in year 8 at Salisbury High School.[1] In 2011 S commenced her secondary education at Salisbury High School.
[1] Agreed Facts (Exhibit P7).
The Salisbury Park Primary School is situated on the corner of Goddard Drive and Wildwood Drive, Salisbury Park. The accused was employed at the school as Director of OSHC from 26 February 2007 to 13 September 2013. There is no dispute that the OSHC program was divided into a morning session, which catered for students before school commenced, and an afternoon session which began at about 3.10 pm when school finished. Students attending the afternoon session could remain at OSHC until about 6.30 pm.[2]
[2] Trial transcript, T142.
The OSHC rooms were in the primary school’s ‘Banksia building’. The rooms consisted of an office, kitchen and computer room/play area. The Banksia building also contained four classrooms. An outdoor play area, called ‘Olympic Park’, separated the Banksia building from the ‘Jacaranda unit’, which was dedicated to students with disabilities. The external door to the OSHC rooms (‘the main door’) was positioned on the eastern side of the Banksia building near a gate which provided access to Olympic Park. A door inside the Banksia building, situated on the southern side of the OSHC rooms, led to a hallway and the school’s administration offices.[3] A large playground, referred to in the evidence as the ‘big playground’, was situated in the school grounds west of the Banksia building.[4]
[3] Plan of school (Exhibit P1).
[4] Aerial photograph of school (Exhibit P3).
Complainant’s evidence
S testified that the charged offence was committed when she was in year 5 (2008).[5] However, it was the case for the prosecution that the offence was in fact committed in 2007 when S was in year 4, that being the year her brother B was in year 8 at Salisbury High School.[6] For reasons to be discussed later, I accept that it is unlikely that the alleged offence was committed in 2008. The defence argued that this discrepancy reflected adversely on S’s credibility and reliability. I do not regard it as a matter of much significance. If the complainant was indecently assaulted it is hardly surprising that she may be genuinely confused about the year in which the incident occurred bearing in mind that by the time of trial about 10 years had elapsed.
[5] The complainant testified that she was in grade 5 when the alleged offence was committed: T18, T54.
[6] T172 (Prosecutor’s closing address). The particulars of the offence contained in the Information alleged that the offence was committed between 1 January 2007 and 31 December 2007.
Attendance at OSHC
S testified that when she was in year 5, her mother K would collect her from the primary school and drive her home after first collecting her brother from the High School. S said that initially it was her practice to wait for her mother after school in the eastern car park adjacent to Wildwood Drive.[7] S said that she felt uneasy waiting in the eastern car park because it was often empty by the time her mother arrived, so she commenced waiting for her at OSHC or in the area of Olympic Park.[8]
[7] T18, T19.
[8] T23.
S said that she obtained the accused’s permission to attend OSHC, although she was not a registered participant in the program.[9] She would usually stay at OSHC for about 20-30 minutes after school finished at 3.10 pm.[10] As far as she was aware, the accused was the only person who worked in OSHC. However, members of the school’s staff were usually working in the administration offices down the hallway.[11]
[9] T20, T22.
[10] T51.
[11] T21.
In cross-examination it was put to S that the children who attended OSHC usually played in the big playground from 3.10 pm until 4.00 pm when they would enter the OSHC rooms and have a snack or afternoon tea. S said that the children sometimes played in Olympic Park and did not always enter the OSHC rooms at 4.00 pm. S denied that she only played with the OSHC children in the big playground and never went inside the OSHC rooms because only registered participants in the program were permitted to go into the rooms. S said that she ‘would often trail down with them and [the accused] had full knowledge that [she] was with them’.[12]
[12] T50, T54, T61.
The alleged offence
S testified that one afternoon when she was in year 5, she stayed at OSHC longer than she usually did. Her mother had attended the school at the usual time to drive her home, however she persuaded her mother to allow her to stay longer. Her mother then left.[13]
[13] T28.
S estimated that about 10 to 15 students stayed in OSHC after school on that day. Apart from the accused, the only members of the school’s staff who were in the OSHC rooms that afternoon were two members of the Jacaranda unit who ‘popped their heads in and out’. By about 5.15 pm everyone had left except for her and the accused.[14]
[14] T28.
S said that at some point after the others had left, she obtained the accused’s permission to play on a computer in the computer room.[15] She then sat on a chair in front of a computer. The chair had a back rest but did not have arm rests.[16] At the time she wore a loose-fitting school T-shirt which hung outside her jeans. She had just started to develop breasts and was not wearing a bra.[17]
[15] T29.
[16] T58, T59.
[17] T31.
S testified that while she was sitting in front of the computer, the accused knelt on the floor behind her and asked: ‘Do you mind if I give you a back rub?’ S felt uncomfortable but did not say anything to him.[18] The accused then rubbed her shoulders and back with his hands on the outside of her T-shirt. He then placed his hands under the bottom hem of her T-shirt and rubbed her bare back by ‘moving his hands up and down’.[19] The accused eventually slid his hands around S’s ribcage onto her chest and ‘cupped’ and fondled her breasts, commenting that she ‘should really start wearing a bra’.[20]
[18] T29.
[19] T30.
[20] T30, T32.
S estimated that the accused touched her breasts for about 3-5 minutes. She then began to ‘fidget’ and said to the accused that her ‘mum would probably be here soon’ or words to that effect.[21] The accused then removed his hands and ‘took a step back’. S then left the computer room and went to the front door where she saw her mother walking towards her.[22] S said that her mother arrived at about 6.00 pm and that it was dark outside.[23]
[21] T32.
[22] T32.
[23] T28.
Before I turn to the ensuing events, it is convenient to deal with an aspect of S’s testimony that received attention in cross-examination.
Prior statements
In cross-examination, S reiterated that the accused was kneeling on the floor behind the chair in which she was sitting when he touched her breasts.[24] However, she admitted that she had failed to mention that he had knelt down behind her when she gave written statements to the police on 24 October 2015, 28 December 2016 and 14 March 2018.[25]
[24] T73, T75.
[25] T75, T78.
In cross-examination it was put to S that the first time she had ever mentioned the accused kneeling during the incident was in her evidence-in-chief. It was suggested that she had invented this aspect of her evidence because she ‘realised that the incident doesn’t make any sense if [the accused] had been standing behind [her]’.[26] (As I understood Mr Mead’s suggestion it would have been difficult, if not impossible, for the accused to have placed his hands underneath the bottom of the complainant’s T-shirt and to have touched her in the manner she described if he was standing at all times.)
[26] T79.
S denied the allegation of recent invention and suggested that she informed the police officer, who took her first statement, that the accused was kneeling at the time despite the absence of any reference to that in her statements.[27] The parties agreed ‘that there are no police notes indicating that [S] disclosed that the accused was kneeling at the time of the incident’.[28] However, I was not informed whether any notes were made of S’s conversations with the police or whether any such notes were still available. Furthermore, I was not informed whether the interviewing police officer(s) specifically asked S to describe the position the accused was in at the time he is alleged to have touched her breasts.
[27] T75, T76, T78.
[28] T139.
Following S’s cross-examination, the prosecution and the defence agreed that in S’s first statement to police (24 October 2015) she described the commencement of the incident in the following terms:[29]
When I was outside playing on the play-ground, I had seen him staring at me. He had a name tag on his T-shirt that said Brenton. I was playing a game on the computer and he was watching over my shoulder. He was really close to me. He asked me what I was doing and if I was bored so I said yes.
He then said, ‘Do you want a back rub? Before I could answer he started messaging my shoulders. He moved his hands further down my back. He would say things like, ‘Does that feel nice?’ and ‘Do you want me to go lower?’ I didn’t know what to say so I gave an awkward laugh. I felt really uncomfortable but I didn’t know how to tell him to stop. I didn’t want to be rude.
[29] T88, T91 (My underlining).
Upon Mr Mead’s application, I granted leave for S to be recalled for further cross-examination in relation to the statement set out above. When further questioned, S agreed that she told the police that the accused was watching over her shoulder while she was playing on the computer. She said that he was standing behind her at that point and agreed that there was ‘nothing in the rest of the statement where [she] indicated that Brenton started to kneel behind her’.[30] In re-examination, S said that the accused knelt down at the point when he said: ‘Do you want a back rub?’[31]
[30] T91.
[31] T91.
In his closing address, Mr Mead maintained that S’s evidence that the accused was kneeling at the time was first mentioned in-chief. I reject that submission. It cannot be reconciled with the following remarks made by Ms Spencer when she delivered her opening address:[32]
The accused was the last worker at the centre on that day. [S] was sitting on the computer when the accused came up to her and was kneeling behind her. He asked if [S] wanted a back rub and he started massaging her shoulders. This progressed to him putting his hands underneath [S’s] school shirt and he began touching her chest area ...
[32] T5 (My underlining).
It is apparent from these remarks that at some stage prior to trial S had informed some person in a position of authority that the accused was kneeling behind her when he is alleged to have indecently assaulted her. No evidence was put before me as to when and to whom S had provided this information.
I also reject Mr Mead’s further submission that S’s evidence in relation to the accused kneeling is inconsistent with her statements to police. As Ms Spencer submitted, S’s evidence is consistent with her having ‘gone into a level of detail not previously provided which is not unusual for witnesses’.[33] In my view, her failure to specifically mention in her statements that the accused had knelt down is entirely consistent with an innocent omission in respect of a matter of a detail, the importance of which S may not have appreciated at the time.
[33] Closing address, T177.
I return to S’s account of the events that occurred immediately after she left the computer room.
Mother arrives
S testified that upon approaching the front door, she saw her mother walking towards her. When her mother came in through the front door, S ‘clung to her and moved behind her’. The accused told her mother that S had been ‘really good’ and would not mind having her again. S did not say anything and then left with her mother.[34] After they got into their car to drive home, S’s mother asked her if she would like to return to OSHC. According to S, she ‘snapped’ and said ‘no’.[35] They had no further conversation about the matter and went home.
[34] T32.
[35] T32.
S said that she never returned to OSHC and from that point onwards, waited for her mother to pick her up after-school either near her classroom or in the school ‘office’.[36] In cross-examination she agreed that sometimes she waited for her mother outside the school on Goddard Road.[37]
[36] T35.
[37] T53.
Complaint to P
S deposed that the first person to whom she complained about the accused’s conduct was her best friend, and next-door neighbour, (P). P is two years younger than S and at the time of the relevant events attended a different primary school. According to S, she made the complaint a few weeks after the incident, during a conversation with P in the hallway of S’s home. At the time S’s mother was in her bedroom getting ready to go out. S said that P indicated that she wanted to join the OSHC program at her school. She then told P ‘what had happened’ and advised her not to join the program.[38] In cross-examination S explained that she was worried that the same thing might happen to P.[39]
[38] T32-T33.
[39] T63.
The defence disputed that S complained to P. In cross-examination Mr Mead suggested to S that her claim that she first complained to P was inconsistent with the following passage from her statement to police dated 24 October 2015:
I do remember going to school the next day and speaking to the school counsellor. The counsellor was male, and I don’t remember his name. I would always go to the school counsellor for my work. While I was there, I told the counsellor that Brenton had done something that had made me feel uncomfortable and that I didn’t want to go to OSHC. I used to mention the incident to the counsellor but he would change the subject and tell me that I was not concentrating.
S agreed that she made the statement and testified that it was true.[40] She said that she did not disclose that the accused had touched her breasts and merely told the counsellor that ‘Brenton had done something that made me feel uncomfortable’. According to S, the counsellor ‘brushed it off’ and ‘made [her] continue with what [she] was doing’. S was ‘fairly sure’ that the counsellor did not cause the matter to be investigated.[41]
[40] T46, T48.
[41] T48.
I accept that S spoke to a school counsellor following the incident. It is likely that her statements were not investigated because the person to whom she spoke did not appreciate that she was referring to sexual misbehaviour. It should be observed that S could not remember the name of the counsellor and no evidence was tendered in relation to whether the police had conducted investigations to determine the identity of that person or the existence of any records relating to S’s alleged conversation with the counsellor.
Contact with accused post alleged offence
S was cross-examined as to whether she had seen the accused ‘since the incident’. She said that she had seen him on Facebook but not ‘in person’. She was asked whether it was her evidence that she had not seen him since she was roughly 10 years of age. She replied: ‘that’s correct’.[42]
[42] T36.
Later, in cross-examination, S said that following the incident she continued seeing him around the school until she left in 2010. She agreed that following her graduation in 2010 she returned to the school from time to time to visit teachers with whom she had a close connection. She did not visit the accused at the school but on occasions saw him there. She agreed that he would say ‘hello’ to her and that sometimes she would say hello back to him. On other occasions she would ‘sort of wave and carry on’.[43]
[43] T54-T55.
S was then challenged by Mr Mead as to why she had previously said that she did not see the accused after the incident. S explained that she gave her answer believing that she was being questioned about whether she had seen him at places outside the school grounds such as shopping centres.[44] I accept this explanation. It is obvious that she would have continued to see the accused at the school until she graduated at the end of year 7.
[44] T55.
Complainant’s difficulties at high school

S was cross-examined about difficulties she experienced while attending Salisbury High School. S agreed that at one point she entered the Flexible Learning Options (FLO) program because she had been subjected to bullying and harassment from fellow students. S said that as a result of the bullying she engaged in self-harming behaviour and experienced suicidal ideation. It was suggested that S was also upset because she was not getting enough attention from her parents and that her desire for attention later caused her to make a false complaint of having been sexually assaulted by the accused.[45] S denied that a lack of attention from her parents had been an issue at high school or since.
[45] T56-T57.
In cross-examination Mr Mead further put to S that one afternoon on a school day in 2013 she saw the accused at the Salisbury Park High School while she was picking up rubbish in the school grounds. It was suggested that she approached the accused and told him that she was being bullied by students for being bi-sexual and sought his advice on how to deal with the problem. On the defence case such a request for advice would be inconsistent with S having been earlier sexually abused by him. S agreed that her bi-sexuality was one of the matters about which she was bullied at school and that picking up rubbish was a common form of punishment for misbehaviour. However, she had no memory of speaking to the accused, or seeing him, at the high school.[46] I will return to discuss this aspect of the evidence later.
[46] T56-T57.
Complainant contacts police
On 24 October 2015 S attended the Elizabeth Police Station with P and reported the alleged offence to police.[47]
[47] Agreed facts (Exhibit P7 [5]) see also T34, T35.
S said that she decided to go to the police as a result of seeing on the night of 23 October 2015 a post on Facebook relating to the accused. The post contained a photograph of the accused on Facebook accompanied by derogatory captions calling him a ‘… “pervert”, “paedophile”, things [of] that nature’.[48] The captions also ‘expressed things that he had done or assumed that he had done and things like that’.[49] S said that the information had been posted on Facebook by one of her friends.[50] After viewing the post on Facebook S rang the Elizabeth Police Station and arranged to attend the station the following day.[51]
[48] T34.
[49] T35.
[50] T35-T36.
[51] T34.
In cross-examination, S expanded on the nature of the information posted on Facebook. She said that the post accused him of being a paedophile and revealed that he was ‘going through court’. She said that the photograph of the accused showed him outside the District Court which caused her to believe that he was on trial.[52] She said that she then conducted research on Google which indicated that he was a paedophile and that he was ‘actually … going to go to court’.[53]
[52] T39.
[53] T39.
In examination-in-chief, S said that the Facebook post inspired her to contact the police for the following reasons:[54]
It sounds silly to express but it was like a reality hit me, that it had actually happened, and that I hadn’t just, you know, thought it did and it actually didn’t, like a messed-up dream.
[54] T34.
She was cross-examined in relation to that answer, as follows:[55]
[55] T36-T37.
QYou also said that after you saw this Facebook post it convinced you that something had really happened to you or that it had happened to you.
A.Yes.
Q.Can you explain what you meant by that.
A.In order to cope, I would assume, after it happened, I convinced myself that it was kind of like a nightmare, that I had dreamt it up, but the Facebook post allowed me to confirm that it actually had happened.
Q.Are you saying that you weren't sure that it had happened.
A.As I said, in order to allow me to cope I convinced myself that it hadn't, just so I could cope.
HIS HONOUR
Q.I think the point that Mr Mead is making is that up until the time you saw the Facebook post, did you believe that it had happened or that it was a dream or something else.
A.I believed more or less in the in-between, that it had happened but it was something in my head like a dream, but I believed it had happened more than anything.
XXN
Q.Again just to be clear, up until the Facebook post, in your mind it was something akin to a bad dream that you thought was just in your head.
A.I was more on the side of I did believe that it happened but to cope I wanted to believe it hadn't happened so I registered it as a bad dream in order to allow me to cope.
Conversation with mother
In cross-examination, S said that she was not sure whether she had complained to her mother about the accused’s conduct prior to seeing the Facebook post.[56] However, S subsequently agreed that in her statement to police, dated 24 October 2015, she said:[57]
A few months after the incident I told my mum what had happened but she kind of brushed it off and thought it was my imagination.
…
During the evening on Friday 23rd October 2015 I was on my Facebook account and a friend had shared a post about a Brenton Kelly Dickson who was in court for child molestation. There was a picture of Brenton and he was the OSHC worker who had touched me. I couldn’t believe it and decided to Google it to make sure it was true. I showed my mum the post and told her that I’d not been making it up. My mum said that she couldn’t remember me telling her but that I should go to the police and make a report.
[56] T40-T41.
[57] My underlining.
S then conceded in cross-examination that she did not complain to her mother about the accused’s conduct any time prior to seeing the Facebook post. She suggested that she did not realise that she had failed to complain to her mother until after she had given her statement to the police. S said that she had convinced herself that she had ‘actually spoken to someone’ as ‘a coping mechanism to allow [her] to carry on’.[58] She said that she had suffered from anxiety since she was ‘young’ and ‘often [resorted to] coping mechanisms to deal with issues’.[59] In the following passage, I sought to clarify this aspect of her evidence:[60]
Q.So I'm following what you're saying: are you suggesting that you somehow felt guilty about not having told your mother, as a coping strategy you convinced yourself that you had told her.
A.Yes, thank you.
[58] T43.
[59] T43.
[60] T43.
S said in cross-examination that she first realised she had not told her mother about the accused’s misconduct soon after she had gone to the police:[61]
I think it was during the time where everything was beginning as in like they were taking reports and taking down statements and things like that, because it gave me valuable time to focus on what had happened because I hadn’t thought about it in quite some time …
[61] T42-T43.
I accept that S genuinely but wrongly believed for a time that she had complained to her mother.
Mother’s evidence
K gave evidence which supported S’s account in relation to her attendance at OSHC before, and on, the day of the alleged offence. There is however a discrepancy between their accounts as to when that occurred. As mentioned, S said that she attended OSHC when she was in year 5 (2008). K could not recall the year S was in at school at the time but was confident that it was when B was in his first year of high school (2007). If that is correct, then S would have been in year 4 when she is said to have attended OSHC.
Attendance at OSHC
K testified that when B was in his first year of high school, she drove both B and S home after school. Initially it was her practice to collect B first, because he was settling into a new school. His classes finished at about 2.45 pm. Usually, however, he would not emerge from the school grounds until after 3.00 pm. K would then drive to the Salisbury Park Primary School and collect S whose classes finished at about 3.10 pm. The drive to the primary school usually took about 15-20 minutes. S would wait for her either in the eastern car park on Wildwood Drive or in the pick-up area for disabled children, located between the entrance to the Jacaranda Unit and the main door to the OSHC rooms.[62]
[62] T93-T95, T104-T106.
K said that this practice changed after S was given permission by the accused to stay at OSHC. One afternoon she drove into the pick-up area for disabled children and saw her daughter exit the OSHC rooms through the main door. After S got into the car, K asked her why she had been at OSHC. S told her that she was not allowed to wait in the pick-up area for the disabled children because of the traffic.[63] K assumed that S had been given permission to stay at OSHC only for that afternoon.
[63] T94-T95. Note: the statement allegedly made by ST to her mother is relevant and admissible for non-hearsay purposes, namely, to explain why KT later spoke to the accused about the matter.
On a subsequent afternoon, K found S waiting for her in Olympic Park, the play area adjacent to OSHC. After S indicated that it was ‘alright’ for her to be there, K went into the OSHC rooms and discussed the matter with the accused. The accused told her that it would be fine for S to wait at OSHC after school. When K pointed out that S was not enrolled in the OSHC program, the accused indicated that it did not matter because she would only be staying for ‘half an hour or so’.[64]
[64] T96.
According to K, her daughter then began waiting for her after school at OSHC.[65] She believed that commenced ‘just after [B] had gone to high school’ in ‘late February/early March’.[66] K was unsure for how long that continued, stating that it ‘could have been a few weeks, maybe a couple of months’.[67] During that period S waited for her in the OSHC rooms or Olympic Park.[68] K was cross-examined as to whether she actually entered the OSHC rooms:[69]
Q.… did you ever actually go in through the OHSC door and collect your daughter.
A.Sometimes I would go in there if I couldn't see her in that fenced-in yard [Olympic Park].
Q.But sometimes you would go in through that door.
A.Yeah.
Q.And would you see her inside the OHSC facility.
A.Yeah, I would physically get out of my car and go through the Olympic Park area, and look in the door, and then I'd call her and we'd go.
[65] T96.
[66] T103.
[67] T103.
[68] T96.
[69] T110.
K said that after B had settled into his new school, she reversed the order in which she collected the children after school.[70]
[70] T103.
Day of alleged offence
Consistent with S’s evidence, K testified that her daughter stopped attending OSHC following an afternoon when she had stayed there longer than normal. On the day in question K went to the primary school to collect S and spoke to her in the OSHC kitchen. S told her that other children were staying for tea and asked if she could also stay. K then spoke to the accused. He indicated that it was ‘okay’ if S remained and that K could return to collect her between 5.30-6.00 pm. K then left.[71]
[71] T97.
K testified that she returned to the school shortly before 6.00 pm. Upon entering the OSHC rooms through the main door, she saw the accused in his office. S then ran towards her from the direction of the computer room and ‘grabbed’ one of her arms.[72] While K was thanking the accused for letting S stay, her daughter interrupted and said: ‘I want to go, let’s go, I want to go’. Her daughter appeared ‘shaken’ and it ‘seemed like she just wanted to be out of there’.[73]
[72] T99-T100.
[73] T100.
After K thanked the accused, she left with S. Upon getting into their car to drive home, K asked if S had had a good time. She replied that ‘she did not want to talk about it’ and appeared ‘uptight’ and ‘shaken up’. K then asked S if she wanted to go again. S replied: ‘no’. K then discontinued the conversation and drove her daughter home.[74] K said that from that day onwards she collected S from outside the school on Goddard Drive.[75]
[74] T100-T101.
[75] T102.
In cross-examination, K denied that she never collected S from OSHC or spoke to the accused about S staying at OSHC after school. She further denied that she did not collect S from OSHC on the day of the alleged offence.[76]
[76] T111.
It must be said that there is an element of confusion in K’s evidence as to when the alleged incident is likely to have occurred. On the one hand, K suggested that it must have occurred during February or March of 2007, i.e. during the first school term. However, during Mr Mead’s cross-examination, I asked K whether ‘it was light or dark’ when she picked up her daughter on the relevant occasion. Consistent with the evidence given by her daughter, K replied:[77]
Actually, I think it was getting dark. No, I don’t think it would have been daylight savings. I think it was getting dark.
[77] T107.
If this evidence is correct, then the alleged incident is likely to have occurred in the second or third school term.
Mr Mead argued that this internal conflict in K’s evidence should cause me to doubt K’s general credibility and reliability. He further submitted, as I understood his closing address, that K was sympathetic to her daughter’s allegations and biased against the accused.[78] He argued that it was reasonably possible that K had either ‘consciously or unconsciously’ ‘tailored’ her evidence to ‘support’ the complainant’s allegations.[79]
[78] T196.
[79] Defence counsel’s closing address, T197.
Complainant’s difficulties at High School
K was cross-examined about S’s behaviour as a teenager. K said that her daughter had ‘struggled with depression and anxiety’ and exhibited ‘poor behaviour’ which caused them to ‘clash’. S disputed that her daughter’s behaviour was atypical for a child of her age. She said that they clashed over ‘teenage issues’ such as S ‘wanting to go out’ and the time she was expected home.
K agreed there was an occasion when she received a phone call from a staff member of the Salisbury Park High School in relation to S purportedly exhibiting suicidal thoughts. K said that she attended the school and spoke to her daughter in the school yard. S told her that she and other students were given an assignment to write down their feelings. K did not consider that her daughter was genuinely suicidal. She denied that her daughter was concerned about a lack of parental attention. She said that S had never made any such complaint to her and that, if anything, she gave her children too much attention.[80] K agreed that she took S to a psychologist so that she could discuss her feelings but there is no suggestion that her daughter suffered any serious psychological issues.
[80] T118-T120.
K agreed that S had engaged in attention seeking behaviour but suggested that it was relatively limited. Her evidence on this topic was as follows:[81]
Q.Did she exhibit any attention seeking behaviour around the home during those teenage years.
A.She used to dress funny, what I consider funny, gothic looking, but then kids do that, they've got to find their own identity.
Q.Apart from that, anything else.
A.Not really, she would get in an argument with you just for the sake of it, I suppose, just for stupid things.
[81] T120.
Complainant contacts police
K was cross-examined in relation to S showing her a Facebook post concerning the accused in late 2015. K said that someone had posted ‘Don’t leave your children at after school with this person’ or words to that effect and that she was going to report him to the police because he ‘did things to her’.[82] When asked by Mr Mead if K was concerned that her daughter ‘was simply jumping on the bandwagon’ K said that she asked S whether she was sure about what had happened, and that S replied she was.[83]
[82] T112, T116.
[83] T114-T115.
Mr Mead explored with K the circumstances surrounding her daughter’s decision to go to the police, presumably for the purpose of determining whether there were any matters which served to undermine the credibility and reliability of S. Nothing of significance emerged. However, as noted above, statements purportedly made by S to her mother at the time found their way into evidence. I should make it plain that I have not used any of the statements said to have been made by S to K as evidence of the truth of her assertions. Such a use of the evidence would of course breach the hearsay rule.
P’s evidence
P was 18 years of age when she gave evidence. She supported S’s account of having complained to P. P said they had a conversation at S’s home concerning after school care when she and S were about eight and 10 years of age, respectively. The conversation took place in the hallway while S’s mother was in another room getting ready to go out. At the time P understood that S attended OSHC at Salisbury Park Primary School. She informed S that she was interested in participating in the OSHC program at her own school. During the conversation S complained that an OSHC worker at her school had touched her breasts. She did not tell P the name of the worker at the time.[84]
[84] T124-125.
The defence argued that I should reject the evidence given by P and S in relation to the alleged complaint. In effect it was submitted that it is reasonably possible they had fabricated their evidence on this topic. Mr Mead argued that P’s credibility and reliability was undermined by evidence she gave in cross-examination on the following topic. P said that following S’s complaint she never spoke to her about the alleged incident until 24 October 2015, when they attended the police station together. On that day, S attended her home and showed her a Facebook post, on an iPod, relating to the accused. The complainant asked her to accompany her to the police station because she intended to report ‘that he was the man that had touched her’.[85] They then went to the police station together. P was then cross-examined as follows:[86]
Q.And at that time, before you went to the police station, did she say that that person was facing charges in relation to children.
A.No. She just told me we were going down to report that he was the man that had touched her. She didn't say anything else about him or what the post was about.
[85] T128.
[86] T128.
Under further cross-examination, P admitted that her statement to police dated 10 December 2015 contained the following passage: ‘[S] has mentioned to me that the guy who did this to her was facing charges for doing this to other kids’. However, she insisted that she had no memory of saying that to the police.
Mr Mead submitted that it is improbable that S and P would not have discussed the Facebook allegations made against the accused before attending the police station. He further submitted that it is reasonably possible that P intentionally fabricated her complaint evidence to support her friend’s allegations or that her memory has been unwittingly polluted by the Facebook allegations and discussions she had with S.
Admissibility of complaint evidence
Before I turn to the accused’s evidence, it is convenient to deal with a submission made by Mr Mead that the complaint evidence given by S and P is inadmissible.
Section 34M of the Evidence Act 1929 (SA) governs the admissibility of complaint evidence in sexual cases. Pursuant to s 34M(3) ‘evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence’. An ‘initial complaint’ in relation to a sexual offence ‘includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time’: s 34M(6).
Complaint evidence is admitted (i) to inform the trier of fact (jury or judge as the case may be) as to how the allegation first came to light; and, (ii) as evidence of the degree of consistency of conduct of the alleged victim: s 34M(4). In relation to the latter use, the complaint is to be viewed as a prior consistent statement, which because of its consistency suggests that the complainant is more likely to be telling the truth at trial.[87] The evidence is admissible for those two purposes only. It may not be used ‘as evidence of the truth of what was alleged’: s 34M(4). Before complaint evidence is admitted the court must be of the view that the evidence constitutes an initial complaint and that it is capable of demonstrating consistency of conduct.[88] However, it is for the trier of fact to determine the significance, if any, of the evidence.[89]
[87] See Kilby v The Queen (1973) 129 CLR 460; Jones v R (1997) 143 ALR 52.
[88] R v S, DD (2010) 109 SASR 46, [109].
[89] R v Usher (2014) 119 SASR 22, [48].

In his closing address, Mr Mead submitted that the complaint evidence given by S and her friend P was inadmissible because S said that she had earlier complained to a school counsellor. I reject that submission. The complainant said that she did not inform the counsellor of the details of what she claims occurred. She merely told him that the accused had ‘done something that made me feel uncomfortable’. In my view, this does not necessarily constitute a complaint of ‘an alleged sexual offence’. The complaint made by S to K was the first complaint of a sexual nature and, accordingly, satisfies the definition of an ‘initial complaint’ for the purposes of s 34M.
The more pressing issue is whether I should accept that a complaint was made by S to P as they both alleged. I have serious reservations about P’s evidence. In my view it is unlikely that S would not have discussed the alleged incident with P prior to attending the police station and/or before P gave her statement to the police in December 2015. It would have been quite natural for such discussions to have taken place having regard to their close friendship.
In my view there is a real risk that such discussions have innocently contaminated P’s memory of S having complained to her. The evidence given by P in relation to the complaint is a mirror image of the evidence given by S. The complaint is said to have been made eight years before P gave her statement to police and 10 years before she gave evidence at trial. Notwithstanding that significant effluxion of time P purported to remember not only the terms of the complaint but also that the complaint was made in the hallway of S’s home and while the complainant’s mother was getting ready to go out. That strikes me as a remarkably detailed recollection. I do not suggest that S and K conspired to give a false account of a complaint having been made. Indeed, I am satisfied that S was an honest witness, for reasons that I will expand upon later. However, in my opinion, it is reasonably possible that S made a complaint to P, or later mistakenly believed she had made a complaint to P, and that discussions between the two witnesses have implanted in P’s mind a false memory of the fact and circumstances of the complaint.
For these reasons, I have disregarded the complaint evidence given by S and P.
Defence case
Mr Dickson denied committing the charged offence.
The accused confirmed that he was the Director of OSHC at Salisbury Park Primary School from 2007 until 2013. He testified that children who were not enrolled in the OSHC program were not permitted to attend OSHC before or after school. When school finished at 3.10 pm, enrolees were required to attend the OSHC rooms where the accused would ‘sign them in’. That was necessary to ‘prove that the children were there for childcare benefit and other government schemes’. Weather permitting, the children were then taken to the big playground where they played under his supervision until about 3.50 pm. If the weather was poor the children would be taken to the school’s indoor gym. The children would then return to the OSHC rooms for afternoon tea, at about 4.00 pm. Following afternoon tea, they could use the computers and play equipment until collected by a parent no later than 6.30 pm.[90]
[90] T143-T145.
The accused testified that after school children who were not enrolled in the OSHC program were entitled to play in the big playground with the children who were enrolled. Those children were under the supervision of a teacher until 3.30 pm. The accused would then supervise those children as well as the OSHC children until the latter returned to the OSHC rooms for afternoon tea. Any child who was not enrolled in OSHC was then required to attend the school’s administration office and wait there.[91]
[91] T146-T147.
The accused testified that S was one of the children who played in the big playground with the OSHC children but denied: that S attended the OSHC rooms after hours; that he gave S permission to stay behind at OSHC after school; that he spoke to K about allowing her daughter to attend OSHC on an informal basis; or that K ever collected her daughter from OSHC.[92]
[92] T147-T150.
The accused further disputed that S would have played in Olympic Park after school during the first term of 2007. He said that renovations of Olympic Park commenced in 2007 and were not completed until mid-2007 on a date recorded on a plaque in the facility. Following completion of the accused’s evidence, the defence tendered by consent a photograph of the plaque to which the accused had referred (Exhibit D9). The photograph indicated that Olympic Park was opened on 30 March 2007 by Mr David Fawcett MP, Federal Member for Wakefield, shortly before the commencement of the school holidays at the end of first term.
In my view the formal opening of Olympic Park is not inconsistent with S playing in the park during first term. The facility may have been substantially renovated prior to the opening, as Mr Mead conceded in his closing address. In any event, as earlier discussed, if the evidence given by S and her mother about it being dark or close to dark on the day of the alleged offence is true, then it is likely to have occurred in the second or third school term.
The accused further testified that after S left Salisbury Park Primary School she and other former schoolmates returned to the school on five or six occasions for nostalgic reasons to ‘see either myself or the year 7 teachers’. He then added: ‘It was usually the year 7 teachers they came back to see’.[93] This evidence suggested that there were occasions when S visited the school to catch up with him, as well as others. Later, in cross-examination, the accused qualified his evidence on this topic:[94]
[93] T150.
[94] T165.
Q.And you also said that [S] came back to the school five or six times after she left and spoke to you.
A.Yes.
Q.Do you have specific memories of those occasions.
A.No.
HIS HONOUR
Q.Did she come back to speak to you or did you just happen to be there when she was visiting other people.
A.I was out in the big playground, she would be waiting to be picked up or whatever; I think she'd caught the bus from the high school.
Q.But she didn't go back to the school to see you.
A.No, not specifically to see me, no.
The accused further testified that in 2008 he secured a second job at the Salisbury Park Primary School called School Services Officer (SS0). Part of his duties, as SSO, involved driving a bus to take students with disabilities on school excursions, including soccer and swimming lessons.[95] The bus which he drove was borrowed by the school from the Salisbury High School. It was his responsibility to return the bus to the high school following an excursion. The accused recounted an occasion when he returned the bus to the high school and saw S in the school grounds picking up rubbish, as punishment for some form of misbehaviour. He said that he noticed her after she had called out his name. He asked her how she was going at school and whether she was making friends. She told him that she was being ‘harassed quite badly’ because she had let it be known she was bisexual. The accused said that he told S she could visit him anytime, if she needed to talk about the matter.[96]
[95] T143, T151.
[96] T151-T152.
As earlier mentioned, S said that she had no memory of speaking to the accused, or seeing him, at the high school.[97] I find that she probably did have a conversation with the accused at her high school. S agreed that she was being bullied about her sexuality at the time and that she was required to clean up the yard for disciplinary reasons. Furthermore, she did not dispute having the conversation to which he attested. However, I do not accept that the conversation is, as the defence suggest, inconsistent with S having been earlier sexually abused by the accused. It is not implausible that a teenager troubled by bullying might discuss her concerns in that regard with a former carer, even a person who had interfered with her in the manner she described. Her concerns about having been touched on the breasts some years earlier may have been overridden by what she regarded as being a more pressing matter at the time.
[97] T56-T57.
Before I turn to analyse the key issues, it is appropriate to outline the applicable legal principles.
Applicable law
The accused is presumed to be innocent of the charge unless and until the prosecution proves his guilt by establishing beyond a reasonable doubt all of the elements of the charge. No onus is cast upon the accused.[98]
[98] Woolmington v DPP [1935] AC 462; Moffa v The Queen (1977) 138 CLR 601, 607-8; Howe v The Queen (1980) 32 ALR 478, 438; He Kaw Teh v The Queen (1985) 157 CLR 523.
Elements of offence
Pursuant to s 56(1) of the CLCA ‘a person who indecently assaults another person is guilty of an offence’. If the victim of the offence was at the time of the offence under the age of 14 years the offence is an aggravated offence and it is unnecessary for the prosecution to establish that the defendant knew of, or was reckless as to, the aggravating factor (s 56(2)). Pursuant to s 5AA(1)(i) an offence is also aggravated if ‘the offender abused a position of authority, or a position of trust, in committing the offence’.
The CLCA does not define an indecent assault but it is well-established that it constitutes an assault accompanied by circumstances of indecency.[99] Section 20(1) of the CLCA provides that ‘a person commits an assault if [inter‑alia] the person, without the consent of another person (the “victim”), intentionally applies force (directly or indirectly) to the victim …’ By force of s 57(2) of the CLCA, no person under the age of 17 years shall be deemed capable of consenting to any indecent assault.
[99] R v Nisbett [1953] VLR 298, 300.
In order to establish that the accused committed the charged offence the prosecution must prove beyond reasonable doubt the following elements:
·First, the accused applied force by placing his hands on S’s breasts under her top;
·Second, the force was accompanied by circumstances of indecency;
·Third, S was under the age of 17 years at the time, rendering consent irrelevant; and,
·Fourth, the offence was aggravated by reason of: (i) S being under the age of 14 years at the time; and/or (ii) the accused abusing a position of trust.
In relation to the requirement of indecency, it is for the trier of fact to ‘decide whether right minded persons would consider the act indecent or not. … Whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent’.[100] Put another way, it must be determined whether the act is ‘contrary to the ordinary standards of morality of respectable people within the community’.[101] Furthermore, the element of ‘indecency’ must have a sexual connotation. In other words, it requires an element of sexual lewdness.[102] By indecency is meant conduct that right-thinking people will consider an affront to the sexual modesty of a person.[103]
[100] R v Court [1989] AC 28, 42 (Lord Ackner).
[101] Harkin v R (1989) 38 A Crim R 296, 299-301 (Lee J).
[102] R v Court [1989] AC 28, 42 (Lord Ackner); Harkin v R (1989) 38 A Crim R 296, 301 (Lee J); Drago v R (1992) 8 WAR 488, 497-8 (Nicholson J).
[103] R v C, M (2014) 246 A Crim R 21, 19 (Peek J).
Forensic disadvantage
Section 34CB(1) of the Evidence Act abolishes a trial judge’s common law duty to give a Longman warning.[104] However, where the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a ‘significant forensic disadvantage’ to the accused, the trial judge must: (a) explain to the jury the nature of the forensic disadvantage; and, (b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence (s 34CB(2)). The section is expressed in terms which suggest that it is not intended to apply to a judge sitting without a jury. However, the existence of circumstances that would give rise to the obligation to give a warning to a jury may also be relevant to the assessment of evidence by a judge sitting without a jury.[105]
[104] Longman v The Queen (1989) 168 CLR 79.
[105] R v Bakhuis (2012) 112 SASR 536, 547-8 [58].
I accept Mr Mead’s submission that the period of 10 years between the date of the alleged offence and the trial has resulted in a significant forensic disadvantage to the accused. If there had been a prompt report to the police the occasion of the alleged offending would have been easier to ascertain; interviews of other members of the school staff may have thrown light on whether S stayed at OSHC after school on the day of the alleged offence or on other occasions; staff or parents who were possibly in the vicinity of the Banksia building on the day of the alleged offence may have been in a position to confirm or deny S’s presence at OSHC; and, the passage of time is likely to have affected to some degree the reliability of the memories of the prosecution witnesses. Furthermore, the amount of time that has elapsed has reduced the accused’s ability to make a defence other than a simple denial. I have taken these factors into account in determining whether the prosecution has proved its case beyond a reasonable doubt.
Information on Facebook and Google
S’s decision to go to the police was inspired by information on Facebook and Google which suggested that the accused had allegedly engaged in sexual misconduct towards other children. The evidence of what S saw on Facebook and Google is relevant and admissible only for the limited purpose of explaining the complainant’s reasons for reporting the accused to the police. The evidence is not admissible for testimonial purposes i.e. to prove the truth of the facts asserted on Facebook and Google. Such a use of the evidence would clearly infringe the hearsay rule.
Because the evidence cannot be used for testimonial purposes, there is no admissible evidence that the accused previously engaged in ‘discreditable conduct’ that would attract the operation of s 34P of the Evidence Act1929. I should indicate that, if this view is wrong, I would have admitted the evidence as non-propensity evidence under s 34P(2)(a) because the probative value of the evidence (explaining the circumstances which caused S to go to the police) substantially outweighed any prejudicial effect it could have on the accused. Using the evidence for this limited purpose would not involve impermissibly suggesting ‘that the defendant is more likely to have committed the [charged] offence because he or she has engaged in discreditable conduct’ (s34P(1)).
Consideration
A convenient starting point is to consider the accused’s evidence.
I am satisfied beyond reasonable doubt that the accused falsely denied that S attended OSHC both before and on the day of the alleged offence. I am satisfied beyond reasonable doubt that he deliberately suggested that he did not have access to S. I accept that S was not enrolled in the OSHC program and that only enrolees were authorised to attend OSHC. However, I accept S’s evidence that the accused departed from this requirement and gave her permission to attend on an informal basis.
Significantly, the complainant’s evidence was confirmed by her mother, K. K could hardly be mistaken about having collected her daughter from OSHC over a period of a ‘few weeks’ or more. Nor could she be mistaken about having spoken to the accused to confirm that he gave S permission to stay with the OSHC students after school. Furthermore, I reject Mr Mead’s submission that K may have fabricated her evidence on these topics to support S’s allegations. As mentioned, I am satisfied that K was an honest witness. Her evidence was convincing, and she was unshaken in cross-examination. I believed her.
I should point out that I have not used the accused’s lies on these topics as discrete lies probative of guilt, in other words as implied admissions of guilt. As the prosecution conceded, the significance of these lies is that they reflect adversely on his credibility and reliability.[106] Indeed, by reason of these lies I have concluded that he was an entirely untrustworthy witness. Of course, mere rejection of the accused as a witness of truth does not equate to proof of guilt. The prosecution must prove an accused person’s guilt on the basis of evidence which the trier of fact does accept. As the High Court said in Douglass v The Queen:[107]
The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. The point is made by Gummow and Hayne JJ in Murray v The Queen: “… This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant”.
[106] See Edwards v R (1993) 178 CLR 193.
[107] Douglass v The Queen (2012) 290 ALR 699 (footnote omitted); see also R v Calides (1983) 34 SASR 355.
It is not enough that the accused’s evidence was rejected. Their Honours continued:[108]
Even if the judge was not persuaded by the appellant’s evidence, he could not convict unless satisfied that it was not reasonably possibly true.
[108] Ibid
In the present case, Mr Dickson could not be convicted of the charged offence unless I was satisfied beyond reasonable doubt that S gave an honest and reliable account of the incident upon which the charge is founded.
Mr Mead argued that S may have fabricated her account, after learning through the Facebook post that the accused was an alleged paedophile, to gain attention from her parents and possibly others. I do not accept that submission. The suggestion that S was troubled at school because she was not getting enough attention from her parents was rejected by both S and her mother. I accept their evidence. Of course, there is no onus on the accused to prove that S had a particular reason for making false allegations against him and my rejection of that one possible motive does not make S’s evidence inherently more credible.[109] There may be another reason or reasons for her making a false complaint.[110] However, I was impressed by S. She was intelligent and gave her evidence in a straightforward manner. Her description of the sexual incident rang true. I accept the evidence she gave in respect of it.
[109] Palmer v R (1998) 193 CLR 1; R v N [2004] SASC 409.
[110] R v Van Der Zyden (2012) 261 FLR 419.
As earlier discussed, the defence attacked S’s credibility and reliability primarily because: (i) she wrongly suggested that the charged incident occurred when she was in year 5 (rather than in year 4); (ii) she failed to specifically mention in her statements to the police that the accused was kneeling when he touched her breasts; and, (iii) she wrongly asserted in her first statement to police that she had told her mother about the accused’s misconduct a few months later. I have taken these matters into account. Individually and collectively they have not caused me to doubt that S was in fact sexually assaulted.
The defence further argued that even if S was an honest witness that she may have mistakenly believed that she had been sexually assaulted by the accused and that her false memory was generated or reinforced by the allegations made against the accused on Facebook. I have given careful consideration to that hypothesis, especially having regard to (i) S’s concession that for a time she had laboured under the false impression that she had complained to her mother about the accused’s misconduct; and, (ii) S’s evidence that the Facebook post confirmed in her mind that the incident had happened and that it was not some ‘messed up dream’ (see [41] herein).

I reject the hypothesis of mistaken belief. The complainant was not mistaken about attending OSHC or being alone with the accused at OSHC quite late on the last occasion she attended there (the occasion of the alleged offence). Her evidence in respect of each of those matters was confirmed by her mother, K. It should also be recalled that when K collected her daughter on the last occasion that she appeared ‘up-tight’ and ‘shaken’ and refused to return to OSHC.
However, I should make it clear that this is not one of those exceptional cases where evidence of distress or upset on the part of a complainant is capable of constituting independent support or corroboration of the complainant’s account.[111] There may be numerous reasons why S was upset on the day in question which had nothing to do with the accused having misbehaved. The relevance of S’s apparent upset is that it shows ‘consistency’ of conduct with the evidence she gave at trial.[112] The more significant point, in my view, is that S (who apparently enjoyed going to OSHC) stopped going to the facility following the occasion when she stayed there quite late. While there may be various reasons for that, her refusal to return to OSHC dovetails with her allegation that she was sexually assaulted on the last occasion she went there.
[111] See R v Schlaeffer (1984) 37 SASR 207; R v Pitman (1985) 38 SASR 566.
[112] R v Baltensperger (2004) 90 SASR 129; R v B, P [2006] SASC 229.
For these reasons I am satisfied beyond reasonable doubt that S gave a truthful and reliable account of the accused sexually interfering with her. I find that the accused put his hands inside her T-shirt and fondled her breasts in the manner she described. The application of force constituted an indecent assault in that it was (i) intentional; (ii) unlawful by reason of S being under the age of 17 years; and, (iii) indecent (sexually lewd and contrary to the ordinary standards of morality of respectable people within the community). The indecent assault was aggravated by reason of S being under the age of 14 years at the time. In the circumstances it is not necessary to consider whether the offence was also aggravated by the accused breaching a position of trust in committing the offence. (The fact that S was ‘informally’ in the care of the accused at the time might have been problematic in that regard.)
Verdict
I record a verdict of guilty of aggravated indecent assault.