R v Grimwood - [2011] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GRIMWOOD
Criminal Trial by Judge Alone
[2011] SADC 133
Reasons for the Verdicts of His Honour Judge Clayton
26 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with four counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935.
Verdict: Guilty of each count.
Criminal Law Consolidation Act 1935 s 49(3), referred to.
R v Trimboli (1979) 21 SASR 577, considered.

R v GRIMWOOD
[2011] SADC 133

The accused is charged with four counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935. The offences are alleged to have taken place between 1 January 1985 and 31 December 1986. The complainant was a friend of a stepdaughter of the accused who at the time of the alleged offending was aged between 14 and 15 years. She is now aged 40.
The accused was born 9 September 1948 and is 22 years older than the complainant.
The accused gave evidence. The evidence of the accused and the evidence of the complainant is incompatible. The evidence of at least one of them cannot be truthful. I am mindful of the fact that my role is not simply to decide which body of evidence I prefer, but I am required to be satisfied that the Crown has proved each of the elements of the alleged offences beyond reasonable doubt.
Each count alleges an act of penile-vaginal intercourse. If I accepted the evidence of the complainant beyond reasonable doubt there would be evidence which established the four acts of penile-vaginal intercourse.
There is no dispute as to the age of the complainant. In the case of each count the dispute goes to the question of whether the alleged act of intercourse took place.
In 1985 the complainant was a school friend of a stepdaughter of the accused. In these reasons I will refer to her as “SD”. The complainant knew of the accused because he worked at the same place as her father. Additionally he was known to her as a successful league footballer.
During 1985 the complainant and SD became good friends and started sleeping overnight at each other's homes on weekends.
The accused, his wife and SD lived in the Adelaide Hills. The wife of the accused has another daughter ("T"), but she stayed elsewhere on all of the relevant occasions. However T did have a bedroom in the family home which was used by the complainant when she stayed overnight.
The court had a view of the family home and plans were tendered in evidence. At one end of the house there is a L-shaped dining/lounge area. A single sliding door separates the kitchen and that part of the L-shaped room which is used for dining. Double sliding doors separate the lounge area from an entrance foyer and passageway which leads to the bedrooms. In the lounge area there was a heater, a television set and a suite of lounge chairs including a double settee which was positioned in front of the television set.
The first count and the second alleged incident, which is not the subject of any charge, are alleged to have occurred in lounge area. The second count is alleged to have occurred in the bedroom of the accused and his wife. Count three is alleged to have occurred in a motor vehicle whilst the accused and the complainant were travelling from the complainant's home at Mount Barker to Moana where the complainant spent several days with the family of the accused in a caravan and count four is alleged to have been committed in sand dunes at Moana.
The Crown case relies entirely upon the evidence of the complainant. The relevant events are alleged to have occurred over 25 years ago. There is no independent corroborative evidence although as Mr Allen, who represented the accused, has correctly conceded corroborative evidence is not essential. There is no evidence of a recent complaint.
The complainant gave evidence that she had disclosed the alleged offending of the accused to a former boyfriend, whom I will refer to as "J". The occasion of that alleged disclosure was in 1987 or 1988, around the time of the complainant's 17th birthday. J gave evidence in which he denied that the complainant had disclosed the alleged offending to him. I have reservations about the evidence of J. When he was approached by police in June 2005 he declined to provide a statement and he told police officers that he disbelieved the complainant's allegations. J is married to T, the other stepdaughter of the accused. J was not an objective witness and his evidence was not persuasive. Notwithstanding the fact that I am not prepared to accept the evidence of J the important fact is that there is no evidence of a complaint which supports the evidence of the complainant. Her evidence stands alone.
As I have mentioned there was evidence of a second incident in the lounge room of the house which has not been charged. There is also vague evidence of other uncharged acts of intercourse on occasions which have not been identified. The uncharged acts of intercourse have not been established and I disregard them for the purpose of considering the evidence of the complainant as to the charged acts.
One significant fact is that there is no allegation of force on the part of the accused. It is common ground that the accused and the complainant had a mutual interest in physical fitness and they trained together. The evidence establishes that the complainant's relationship with the accused went beyond that which would normally exist between a 15-year-old girl and the stepfather of a school friend. The complainant gave evidence that she idolised the accused and had dreams of forming a long-term relationship with him. There is no suggestion that the accused shared of was even aware of those dreams, which may have been fanciful, but there is no reason not to accept that the evidence of the complainant accurately described her own state of mind and her feelings towards the accused. On the evidence of the complainant she was a willing participant in the alleged offending. That is relevant when considering the likelihood of the alleged events having occurred.
I now turn to discuss the complainant's evidence as to each of the alleged offences.
Count One
The complainant gave evidence that during a sleepover she, the accused, his wife and SD were watching television in the lounge room. The complainant was seated on the two seater settee with the accused. SD was on the floor and the wife of the accused was in another chair. The complainant said that SD and the wife of the accused went to bed leaving her and the accused on the settee in the lounge. It was cold and they had a blanket over them. The accused was seated to the left. The complainant said the accused put his right hand on her left leg and she froze. She did not know what to do. She was 14 at the time.
The complainant said he had his hand on her leg, he rubbed his hand, slowly worked his way up her leg and his fingers went under her knickers and touched her vagina. Neither of them said anything. She was scared, nervous and bewildered. The accused then went down under the blanket and with his tongue on her leg worked his way up the leg, pulled her knickers to the side and performed cunnilingus for a few minutes. She said he guided her off the settee onto the floor.
The complainant gave evidence that the accused had removed his tracksuit pants and she knew what was going to happen. She said that she told the accused that she might get pregnant and he responded by demonstrating a cutting movement with two fingers and he said the word "snip". The complainant interpreted that to mean that he had had a vasectomy, because her father "had the snip as well". She was asked "Do you mean by that a vasectomy" and she replied "That's right, yeah. I knew that was okay then".[1]
[1] T35 l38.
She then described the accused getting on top of her and placing his penis inside of her.[2] She said it was very uncomfortable, that the accused moved himself in and out of her and that he ejaculated.[3] She said the act of intercourse lasted "maybe five minutes or so, maybe a little bit longer".
[2] T35 l14 to 37.
[3] T36 l4.
The complainant said they both got dressed and the accused said "Look, go to bed and don't tell" and also said "Don't tell (SD), don't tell (his wife), about this". The complainant did not say anything to him. After replacing his pants the accused said "This is our secret, don't tell (his wife) or (SD)".[4]
[4] T36.
The complainant said that the accused had closed the sliding doors just after his wife had gone to bed and they had to be re-opened.
The complainant said that she felt very guilty that she had allowed it. When asked why she did not do something to stop it occurring she said that the accused gave her attention that she did not have elsewhere. When asked to explain she said "He made a lot of eye contact with me, he would stare at me, he would - yeah, just be there. He would have conversations. I guess I felt like he was going to be my boyfriend".[5]
[5] T37 l35.
The complainant said that at breakfast the next morning she felt extremely uneasy and paranoid about what had happened, but the accused just acted as if nothing had happened. At one point he placed his foot on her foot under the table, looked at her and carried on as if nothing had happened.
The accused and his family dropped the complainant back at her parents’ home that afternoon.
The complainant gave evidence that she never told her parents what had happened because she was scared, guilty, and embarrassed. She would not talk to her parents about something like that. She said she did not say anything to anyone about what had happened because "It was a secret, I was a little bit ashamed. I knew it was wrong. I knew what happened was wrong".[6]
[6] T44 l13.
In his evidence the accused denied the allegation and denied having any sexual contact with the complainant at all.
SD gave evidence that she and the complainant always went to bed at the same time. If that was the case there would have been no opportunity for the alleged offending to have occurred. For reasons which are discussed later I do not accept that evidence of SD.
The Events after Count One
The complainant said that on the next occasion when she went to the home of SD she was "really sort of uneasy, a bit paranoid, but he kind of calmed it over a bit by just playing along, making a lot of eye contact with me". She referred to "lots of kind of flirty little behaviours" such as rubbing up against her and eye contact when no one else was looking.[7]
[7] T44.
The complainant described another incident in the lounge room about a month to six weeks after the first alleged offence when the accused used wooden chocks or wedges to prevent the sliding doors to the lounge room from being opened. There is an inconsistency between her evidence to the court about what she had told police officers as to what she and the accused were doing when they were interrupted. The wife of the accused pulled the sliding door so that the chocks caused the door to come off its hinges.[8]. Her evidence to the court was that on that occasion something of a sexual nature occurred, but that evidence is not consistent with what she told the police officer.
[8] T47.
Because of the inconsistency between the evidence of the complainant to the court and what she told the police I disregard her evidence to the court as to that event. Whether the inconsistency is a reason for rejecting the other evidence of the complainant is a matter which I consider below.
The complainant was asked whether there were other incidents that occurred in the lounge room area and replied "Not in the lounge room area that I can really tell you exact details, but there was another one that happened in the main bedroom that I can recall what happened quite well". She then described the events giving rise to count two.
Count Two
The complainant said that in about September 1985, while she and SD were in year 10, they both went on work experience. The complainant had arranged her work experience at a business in the hills with which she had a connection.
The complainant gave evidence that she and the accused had arranged that the complainant would ring the proprietor of the business and claim that she had missed the bus and that the accused would then meet her not far from her parents’ home. That arrangement had been made over the telephone. The complainant said that the accused was in the practice of communicating with her by telephoning her home when he was on a late shift at work. If the complainant did not answer the phone the accused would just say that his name was "John" and the parents of the complainant would fetch her and the two of them would talk.[9] When asked how many times that had occurred the complainant said "Lots. A dozen".[10]
[9] T51 l33.
[10] T52 l1.
The complainant said that after picking her up as arranged the accused drove to his home. It was around 9 am and there was no one at home. They went to the main bedroom, undressed and laid on the bed. The complainant gave the following evidence:
…We've gotten into the bed, underneath the bed and I’ve said to him, I said "How do you do it with (his wife)?" Referring to - I wanted to know what he did with (his wife) and he said "The same as I do with you" and he continued to - he's placed his hands on my legs, my vagina and then he's gone on top of me and he's put his penis inside my vagina and he’s continued for possibly five minutes or so and, again, I knew that he had ejaculated, he was on top of me. There was certainly no pleasure there whatsoever for me. Now, I just don't know why I was there, but I was, I was idolising this man and I was in like a trance with him.[11]
[11] T54.
She gave evidence that on that occasion she observed that his penis was circumcised. That was a correct observation which provides some corroboration of her evidence.
The complainant then gave evidence that after the act of intercourse they started making the bed. She said that everything in the accused’s house was always immaculate. That is common ground. They heard the sound of a car which sent them "into panic stations". The complainant hid by laying down on the floor under the quilt against the side of the bed which was away from the door. She heard a person, whom she assumed to be SD, moving through the house. She heard someone ask whether there was someone with the accused and he replied that there was no-one there.
The complainant gave evidence that the accused got the person into the kitchen, closed the door between the kitchen and the front hallway and then signalled to the complainant to run out the front door. She did that and ran into the street. A short time later the accused drove down the street and collected her and took the complainant back to the place where she was doing work experience. The two of them commented on how close it was.
As I have mentioned the accused has denied any sexual contact with the complainant.
SD gave evidence but could not recall an occasion such as that described by the complainant. Given that it was 25 years ago and that she never actually observed anything untoward the fact that SD could not recall the occasion is not surprising.
Count Three
Some months after the time when count 2 was allegedly committed, during the Christmas holidays in December 1985, the accused and his family were holidaying at the Moana Caravan Park. The complainant was asked to stay with them for a few days.
The complainant gave evidence that the accused and his family was already at Moana but that he returned home to water the garden. The complainant said that the accused went via her parents’ house where she was living, picked her up and took her back to the caravan park.
There is a fundamental factual contest as to this event. The evidence of the complainant is that the accused and herself were the only persons in the vehicle. The defence case is that the wife of the accused and SD were also passengers in the vehicle.
The evidence of the complainant was that after being picked up from her parents’ house they travelled via Mt Barker, Echunga and Meadows and stopped at a house outside of Meadows heading towards Kangarilla. The accused went into the house while the complainant remained in the car. After about five minutes the accused returned to the car and they continued the journey. That house was the home of the parents of the accused.
The complainant said that the accused then drove to a secluded location and parked the car. Decades later the complainant was able to take police officers to the precise locality. Photographs and a map are in evidence.
The complainant said that after the accused had parked the car, the two of them chatted and the accused asked the complainant to take her clothes off and asked her to wind her seat back, which she did. He then climbed over the console in the centre of the car on to the complainant. She said that they had intercourse for five or 10 minutes, the accused ejaculated, returned to his side of the car and the two of them replaced their clothing.[12] They then resumed the journey to Moana.
[12] T67.
The complainant was asked what, at that stage, Christmas 1985, were her feelings towards the accused. She said:
I idolised him. My-I trusted him, I thought he was-I thought one day perhaps we could be together.[13]
[13] T68.
Count Four
The complainant said that when they arrived at Moana the persons already at the caravan were the wife of the accused, SD and a stepson of the accused.
The complainant said that while she was at Moana she and the accused went for a run on the beach every morning. She said that one morning they headed off to the South and passed the posts which have been placed on the beach to restrict the movement of traffic. About 100 m beyond the posts they went into the sand dunes where the complainant laid down. The accused laid on top of her and moved her shorts to one side. He inserted his penis into her vagina. She said that the sand made it uncomfortable and she asked him to stop, which he did. The intercourse only lasted a couple of minutes and the accused did not ejaculate.[14]
[14] T73.
The complainant said that whilst she was staying at the caravan park the accused was "very sort of friendly, very flirty - rubbed shoulders, flirty, made lots of eye contact".
There are photographs which show the beach at Moana and what is left of the sand dunes. I have heard evidence, which I accept, as to the changes to the sand dunes between 1985 and the present time. I accept that in 1985 the sand dunes provided a place where the accused and the complainant could have been out of sight. But for the discomfort caused by the sand the dunes would have provided a location where intercourse might have taken place.
The evidence establishes that the complainant and the accused had piggybacked each other up the sand hills. The evidence establishes the opportunity for the alleged offence.
The Period following Count Four
The complainant gave evidence that both she and her friend moved to a different high school in 1986 and that their friendship "kind of dwindled off a little bit". She said that she continued to be in contact with the accused and that they talked on the phone when he rang and she continued to see the accused.[15] The complainant said that. She gave evidence of an occasion when she visited the accused in the Royal Adelaide Hospital after he had an accident at work. The accused acknowledged that visit. The complainant said that the accused asked her to close the door and sit on the bed and they started to kiss when the matron burst in and demanded that the door be left open.[16]
[15] T82.
[16] T83.

The complainant also gave evidence of an occasion when the accused took her to a hotel on O'Connell Street, North Adelaide. She was able to describe the hotel. Apart from the fact that they stayed the night she was unable to remember whether any sexual activity occurred.[17] She could not recall whether that was before or after she had visited the accused in hospital. That incident was denied by the accused.
[17] T84.
The complainant gave evidence that during 1986 she felt as if she and the accused may have had something, but she came to realise that she did not have a social life. She said "I thought he was my man and I shouldn't be seeing anyone else because I was seeing him". She continued saying that she realised that it was not right, that she could never have him or be with him and that she needed to move on, to end it.
The complainant said that in about the middle of the year, when she was in hospital, the accused visited her together with SD.[18]
[18] T85.
The complainant gave evidence that in the middle of 1986 she arranged to meet the accused. She said that he had a new car and drove them to a place on a dirt road behind Mt Barker. She told him "We can't do this any more, it's just not fair" and he agreed.[19] She went home and broke down in tears. The relationship ended. The complainant said that at that time she had not told any other person about her sexual relationship with the accused.
[19] T85.
At the following Christmas the complainant saw the accused at a party at the Eagle on the Hill Hotel, but they did not speak to each other.
Evidence of Initial Complaint
The complainant said that the first person she told about her relationship with the accused was a boyfriend, J.
She said that she had turned 17. On the first occasion that she slept with J he asked whether she had been with anyone else before. She said she replied "Yeah, one other person, Trevor Grimwood". She said that her boyfriend did not react but she assumed that he would have known who the accused was because he was a well-known footballer. She said she did not go into any detail with J about the incidents that occurred with the accused.
When she was 18 she joined the air force and moved interstate. She did not see the accused again until their paths crossed fortuitously whilst they were both visiting a hospital in about 2004. On that occasion they both kept walking and no words were spoken.
The complainant saw the accused again at a Christmas pageant in 2006. She was with her family on one side of the street and the accused was with his family, including SD, on the other side of the street. The complainant never spoke to the accused but her present husband did cross the road and make a comment. There was exchange between the two families. That incident provided the impetus for the complainant to make a complaint to the police which she did in January 2007, that is 22 years after the alleged offending.
Uncharged Acts
I have already mentioned the second incident when chocks caused the lounge door to came off the track. The complainant was asked whether there were any other occasions when she had sexual intercourse in the house with the accused. She responded:
They are actually a little blurred. These incidents I can specifically recall I think because of the panic stations and I think that's why it is sitting with me quite clearly, but yes, I would have said another maybe two times-ish, one or two times it’s happened outside of what we've spoken about.[20]
[20] T59, 60.
When asked what had happened she said "very similar circumstances, in the lounge room, TV, everyone else going to bed … there would have been sexual intercourse but, again, I can't tell you exactly I'm sorry".[21] The complainant said that in total she had sexual intercourse with the accused in his house on four to five occasions.[22]
[21] T66.
[22] T60.
Apart from the evidence as to counts one and two, there is no evidence which establishes any act of intercourse in the home of the accused beyond reasonable doubt. Accordingly, there is no evidence of uncharged acts to be considered.
The Defence Case
The accused gave evidence denying the alleged offences. He said that he had never had sexual intercourse with the complainant and that he had never touched her in a sexual manner.[23]
[23] T227.
The accused has no previous convictions.
SD gave evidence. She is now aged 41. She described her relationship with the complainant who was her best friend and she described staying at each other's homes. SD said that there was never an occasion when the complainant stayed over at her house when the two of them did not go to bed at the same time.[24] She also said there was never any occasion when she went home and discovered the accused there alone when she was suspicious about anything going on.[25] I have already commented that from the point of view of SD there was no reason why she should have recalled the incident.
[24] T313.
[25] T314.
SD said she remembered the complainant staying with her family in the caravan at Moana. She said that the accused, her mother and herself left their home, drove to her grandmother's house where they dropped off the family dog and then picked up the complainant and drove to Moana.[26] She said she remembered stopping at the home of the accused's parents in Meadows to pick up home-made biscuits. The accused was the only person to get out of the car. She said the accused helped do something with his father’s boat.
[26] T315.
At one point in her evidence SD acknowledged that her evidence was probably based on what generally happened, rather than an actual recollection of what did happen on that particular day, although later in her evidence she claimed to remember picking up the complainant and arriving at the beach with her[27] If that evidence is correct there would have been no opportunity for count three.
[27] T335, 336.
SD had no memory of the complainant and her stepfather jogging on the beach at Moana. I treat that as an indication of the unreliability of the memory and evidence of SD. I have come to the view that her evidence was based on what generally happened rather than actual recall. She was not a persuasive witness.
SD gave evidence that she had no falling out with complainant but they simply drifted apart. So far as she was aware the complainant had no ill feeling towards her or towards the accused. The first she heard of the allegations against the accused was at the Christmas pageant in 2006.
As I have mentioned the complainant's ex-boyfriend J gave evidence about their relationship in 1987. He said that the complainant never discussed with him in anyway any sexual relationship that she may have had with the accused.[28] He said that while there was no discussion about her prior sexual relationships "I only knew that she had had a boyfriend. I didn't ask her about any sexual contact with that person. It wasn't my business".[29]
[28] T345.
[29] T351.
At the time he was telephoned by Detective Prescott, J was aware of the allegations against the accused and said that he did not believe that the alleged offending had happened.[30] J said that there was no bust up or falling out with the complainant. He has been married to T, the other stepdaughter of the accused, for almost 20 years.
[30] T354.
Discussion
As I have said it is not simply a question of deciding whether I prefer the evidence of the accused or the evidence of the complainant. The question is whether the Crown has proved its case beyond reasonable doubt. The Crown case depends entirely upon the evidence of the complainant which I must accept beyond reasonable doubt. If I have any doubt about the alleged offending I must acquit the accused.
It is possible to accept some parts of the evidence of a witness while rejecting other parts. Inconsistencies in the evidence of a witness or inconsistencies between the evidence and statements made to other persons such as police officers may provide reason to question the reliability or credibility of a witness, but it does not follow that all of the evidence of a witness should be rejected because an inconsistency has been established. It is possible to accept some parts of the evidence of a witness whilst rejecting other parts.
In this case there is no inconsistency in the evidence of the complainant as to the events which constitute the alleged offending itself. The only inconsistencies in her evidence relate to peripheral matters. Nevertheless any inconsistencies do provide reason to scrutinise the evidence of the complainant carefully.
In general terms the accused has given evidence denying the complainant's allegations. He was not even required to do that and he has no obligation to establish a positive case. I give him credit for the fact that he elected to give evidence and exposed himself to the test of cross-examination. I treat his evidence on the same basis as the evidence of any other witness.
The Crown must exclude beyond reasonable doubt the possibility that the evidence of the accused is correct.
The complainant gave very detailed evidence of her relationship with the accused. She descended to the detail of each of the alleged offences. She gave her evidence in a calm and objective way and was an impressive witness.
The prosecutor submitted that there was a richness of detail in the complainant’s account of her sexual relationship with the accused which gives her evidence the ring of truth. There is merit in that submission. The complainant did not exaggerate. Much of her evidence is supported by reference to objective facts which have been established by the evidence.
The prosecutor referred to a number of examples. She referred to the detail contained in the complainant's evidence of count one, in particular her description the conversation in which the accused made the cutting gesture with his fingers to indicate that he had had a vasectomy. The effect of that evidence is enhanced by the fact that the accused had in fact had a vasectomy. The prosecutor submitted that the conversation was the very sort of conversation that would occur between two persons in the positions of the complainant and the accused.
The prosecutor referred to complainant's description of the chocks that were used in connection with the second incident which is uncharged. The description included where the chocks came from, what they looked like and how they were used. Additionally there was the complainant's evidence about her feelings when the wife of the accused attempted to enter the room. The complainant had become paranoid and concerned. I have found that the complainant’s evidence does not establish beyond reasonable doubt that an act of intercourse occurred on that occasion but that does not mean that the incident itself, which may or may not have included intercourse, did not occur.
The prosecutor referred to the detail in the evidence of count two and the evidence of the bed being made afterwards. The complainant said "Everything was always immaculate in his house, everything had to be perfect, and we started making the bed and putting each pillow back how it needed to be and then there was this, like there was a car". That evidence is consistent with the evidence as to the tidiness of the house.
The prosecutor referred to the complainant's description of the penis of the accused. The accused has acknowledged that his penis is circumcised. As I have mentioned that evidence supports the complainant.
The next matter referred to by the prosecutor was the evidence about the trip to Moana. As I have mentioned there is a contest about that evidence. I accept the evidence of the complainant.
There is merit in the prosecutor's argument that the complainant's version is supported by her evidence that the accused had told her that he was returning home to water the garden. That is something which the accused has acknowledged that he did on occasions.[31] There is no reason other than the fact that it is something that the accused did which explains why the complainant had that knowledge.
[31] Transcript of Record of Interview, Exhibit P11, answer to question 127.
As a matter of commonsense it is highly unlikely that the complainant would have given evidence of the facts alleged to constitute count three if the wife of the accused and SD had been passengers in the car on the trip to Moana. The wife of the accused did not give evidence but the prosecutor does not seek any inference to be drawn from that fact. So far as SD is concerned she is not an impartial witness and was inaccurate in other respects. I did not find her evidence to be persuasive.
The evidence of the complainant with respect to count three is enhanced by her detailed evidence of the roads and the position where the car was parked when the alleged offending took place.
I do not accept the evidence of SD or the accused as to who the passengers in the car were on the trip to Moana. The accused initially told police officers he could not remember the occasion.[32] The change in his evidence is a reason to doubt his credibility generally.
[32] Transcript of Record of Interview, Exhibit P11, answers to questions 76, 100 & 127.
The prosecutor referred to the evidence of the circumstances surrounding count four, that is the act of intercourse in the sand dunes. The complainant referred to the uncomfortableness of getting sand inside her vagina and the need to stop the act of sexual intercourse. The prosecutor submitted that piece of evidence had a ring of truth about it. She submitted that the evidence of the complainant on that topic was very factual and measured. There is merit in that submission.
Finally the prosecutor referred to the detail of the way in which the complainant described and viewed their relationship with her idolising him, trusting him and hoping that one day she would be in a relationship with him. The prosecutor submitted that her evidence described precisely how a 14‑year‑old girl would think.
The prosecutor submitted that the complainant had accepted that she did not have a clear memory of all the occasions on which intercourse occurred and she accepted that because of the passage of time there may have been a morphing between some of the uncharged incidents. However, so far as each of the four charged events are concerned, the complainant was able to give extra ordinarily clear evidence of those incidents. I accept that submission.
There are some inconsistencies between the statements which the complainant made to the police and her evidence. The statement to the police was not made until 2007, over 20 years after the alleged offending.
The complainant told police that there was intercourse on the occasion of the event in the lounge when chocks were used. She told the police "I don't recall the exact details of what happened but we had intercourse again. This incident has blurred a bit with others that were similar". On the other hand, her evidence to the court was that there was no intercourse on that occasion. The defence relies upon that inconsistency to attack her credibility. In cross-examination the explanation of the complainant was:
A. Because it's blurred - look, you know, I would have thought there was, but, yeah, it - we were close, you know, we were close together. I'm sorry, I can't recall if the intercourse happened, it happened, when it happened. The door is opened, we've been together, I’ve - we've panicked, I'm back on the seat and they’re having a conversation. That's how I recall it.
Q. So is it the case that when you say "we were close", that could include that you’d been having intercourse.
A. Yes, it could include that.
Q. And, similarly, on your evidence, I think you've also said that it could have been that you were kissing.
A. Yep.[33]
[33] T123.
Later her evidence was:
Q. I think your evidence is to the effect that there may have been intercourse involved on this occasion but you can't be sure.
A. That's correct.[34]
[34] T124.
The complainant's evidence to the court is not identical with what she told the police officers. I have formed the view when all of the evidence is considered there is nothing sinister about that inconsistency. The event in question is not one of the charged events. The uncertainty in her evidence does not provide a reason for not accepting the evidence of the complainant as to the charged events.
The complainant also incorrectly told the police that she had been to a Dolly Parton concert with the accused. The error has been explained. That seems to be a legitimate error in memory and does not provide a basis for rejecting the evidence of the complainant as to the charged offences. The evidence as to the Dolly Parton concert is a mistake which goes to a peripheral matter and not the alleged offending.
As to count one I do not accept the evidence of SD that she and the complainant always went to bed at the same time. SD was not an independent witness and was clearly trying to support the accused. Her evidence was not based upon an actual recollection of the events in question but at best was reconstruction of what might have occurred.
So far as count two is concerned the prosecutor asked rhetorically why should the complainant have complicated the story by involving a third person who could easily refute the story. There is merit in the prosecutor’s submission. If the complainant had invented the facts giving rise to count two it would have been much easier and safer to not refer to a third person who might have been easily identified and called to contradict the allegation. The identity of the third person has not been established but there is an assumption that it was SD.
So far as count three is concerned the evidence of the complainant was full of detail which is consistent with the objective facts. The complainant identified the route taken and the location of the alleged offending with precision. Her evidence had a ring of truth to it.
I reject the suggestion that SD and wife were in the car. Again, it is unlikely that the complainant would have invented a story if witnesses could have been called to refute it.
As the prosecutor pointed out the evidence of the accused differed from SD in that the accused did not mention dropping off a dog.
So far as count four is concerned the accused has admitted that he and the complainant ran together on the beach at Moana and that they piggybacked each other up the sand hills.
The sand dunes and the admitted activity of piggybacking each other would have provided an ideal location for the alleged offending to have taken place. I accept the submission of the prosecutor that the evidence of the act of intercourse ceasing because of the irritation of the sand and the evidence that the accused did not ejaculate are all matters of detail which point to the truthfulness of the evidence of the complainant.
The acknowledged visit of the complainant by herself to see the accused when he was a patient in the Royal Adelaide Hospital in May 1986 is significant. It is significant because the complainant did not attend with SD or some other person. The prosecutor submitted that a hospital visit by a 15-year-old to a 37‑year‑old indicates that the relationship was more than that of school friend and stepfather.
The prosecutor submitted that the fact that the accused did have a new car in 1986 corroborates her evidence about the "breakup" meeting. However that meeting is a peripheral matter of no great significance.
I accept the evidence of the complainant that there was a reason why the complainant did not complain about the conduct of the accused at the time it occurred. She was a willing participant in the activity. She knew that her behaviour was wrong. She hoped, perhaps unrealistically, that one day she would be able to have a proper relationship with the accused.
As to the evidence of the accused the prosecutor submitted that his memory at the time of his interview with Detective Prescott was not good and is in stark contrast to his evidence to the court about specific occasions. There is merit in that submission. However, I do not accept the submission of the prosecutor as to what she called a "slipup" by the accused when he referred to "that" night. I think the prosecutor was trying to read too much into the evidence.

I do accept that the fact that the accused did have a new car at the time of the "breakup" meeting gives cause to doubt his credibility.[35]
[35] T303, 304.
I accept the submission of the prosecutor that the evidence of the accused was reconstructed in material respects. For example when the accused was interviewed by the police officers he had little recollection of the trip to Moana.[36] It was only after he had received the record of interview and showed it to his wife and she suggested that they had picked up the complainant that he developed his present position. I reject the suggestion that it was his recollection. There is an inconsistency in his evidence in that he denied speaking to his wife before the interview.[37]
[36] Transcript of Record of Interview, Exhibit P11, answers to questions 76, 100 & 127.
[37] T252.
I accept the prosecutor’s submission that the accused was unwilling to make reasonable concessions. For example he gave evidence that he could not remember the doors from the lounge into the hallway having ever been closed.[38] In the same vein he gave evidence that he always went to bed at the same time as his wife.
[38] T263.
The accused gave evidence of a conversation to explain how the complainant knew that he had had a vasectomy. I accept the submission of the prosecutor that conversation did not have the ring of truth. I reject the evidence of the accused. I am satisfied that the complainant learned of the accused vasectomy in the way described by her.
I have had regard to the good record of the accused; but as King CJ said people of good character do commit crime for the first time. The evidence of good character should not prevail over the evidence of guilt. R v Trimboli (1979) 21 SASR 577.
I do not regard the fact that J did not support her evidence that she told him about the relationship as a reason not to accept the evidence of the complainant. J was clearly a supporter of the accused. Also the events in question were more than two decades ago and there is no reason why the conversation referred to by the complainant should have made any significant impact on his mind. The evidence of J does not got to the actual offending itself. The consequence of J not supporting the evidence of the complainant is simply that there is no evidence of an initial complaint.
I accept the submission of Mr Allen that the fact that the complainant went to the police can only be used to explain how the allegations came to light and cannot be used for the purpose of explaining consistency of conduct 25 years later.
In cross-examination the complainant conceded that there had been morphing of various incidents where she could not really distinguish between them.[39] When it was suggested that there had been some overlay between each of the incidents and that she was getting the mixed up the complainant replied "I don't feel that with the first one. The first one really stuck in my mind. That was - that was the biggest thing in my life, like that was just a big - ".[40] The cross examiner then asked "But as you sit there giving your evidence you are obviously trying to go back and reconstruct-what has happened" and she replied "Absolutely". The cross-examination continued:
Q As part of that process of reconstruction it’s possible, isn't it, that there are pieces from some incidents that you are misplacing with pieces of other incidents.
A. I don't think with this first one, no. With the ones that happened after that, yes, but the first time it happened I’ve gone over it and over it in my mind for years and that's how I recall it.[41]
[39] T113.
[40] T114.
[41] T114.
That passage of evidence must be looked at in context. The witness and the cross-examiner were at cross purposes. The relevant passage of cross‑examination had commenced several pages earlier in the transcript and the complainant was being cross-examined about the first incident.[42] I think that Mr Allen was trying to read too much into the answer of the complainant when he suggested that the complainant had reconstructed all of the sexual acts.
[42] T110 l34.
I do accept the submission of Mr Allen that there had been a reconstruction of the complainant's statement as to her attendance at a Dolly Parton concert. What she told Detective Prescott on 3 June 2008 can not have been based on recall.[43] She did attend a Dolly Parton concert, but that was not with the family of the accused but with other people. Her statement to Detective Prescott was a mistake but it is not fatal to her credibility as to the facts said to give rise to the four alleged offences.
[43] T154.
I do not regard the omission of the complainant to tell the police officers that at the time of the second incident she and the accused were almost discovered by the wife of the accused, as a reason to treat the evidence of the complainant as unreliable.
Mr Allen submitted that the evidence of the complainant was generally unreliable. He referred to the fact that it would have been unusual for a 15‑year‑old girl to stay up in a friend's house with the friend’s middle-aged father. Mr Allen referred to the implausibility of the facts said to give rise to count two and the "escape" by the complainant from the premises. They are submissions which I have considered and rejected.
Mr Allen suggested that what happened at Moana was implausible because many people would have been using the beach at the time in question. There is no evidence as to how many people were on the beach. The real question is not how many people were on the beach but how many people were in the sand dunes. The accused has admitted that he and the complainant were piggybacking each other up the sand hills. I do not accept the submission that the evidence as to count four was implausible.
Mr Allen referred to what he called the unusual evidence of the motel incident and submitted that because the complainant had no recollection of what had occurred overnight in the motel the memory of the complainant had suffered a catastrophic failure. If the complainant and the accused did have the relationship which the complainant asserts there would have been nothing unusual about a visit to a motel. If the incident had been fabricated there was no reason why the complainant could not have gone further and invented a story of sexual activity in the motel. The fact that she did not do that is significant. I do not accept that the inability of the complainant to recall what happened at the motel is a reason to disbelieve the complainant as to the alleged offences.
I do not regard the evidence of the complainant as to the "breakup" conversation or the telephone calls by the accused pretending to be "John" as reasons to disbelieve the complainant.
I do not accept Mr Allen’s submission that any opportunity for sexual acts has been removed. If one rejects the evidence of SD and the evidence of the accused as to who the passengers in the vehicle were on the trip to Moana, as I have, the evidence establishes an opportunity for each of the four alleged sexual acts.
Mr Allen referred to the forensic disadvantage suffered by the accused as a result of the delay which has occurred. The delay has obviously caused a forensic disadvantage. By itself the forensic disadvantage is not a reason for rejecting the evidence of the complainant but a reason to scrutinise the evidence of the complainant carefully. I have scrutinised the evidence of the complainant carefully. In some respects it is an unusual story. For example, the picture described by the evidence of the complainant hiding under the quilt when a third person arrived at the accused’s home and then running out the front door at the signal of the accused is a farcical one; but that does not mean that it was not true. In a way the unusual nature of parts of the story provides the complainant's evidence with a ring of truth.
I accept the evidence of the complainant beyond reasonable doubt notwithstanding the fact that there was no independent corroboration of her evidence. I have scrutinised her evidence carefully. I accept that there was an enrichment of detail in her evidence. She gave her evidence calmly, objectively and in a way which was highly persuasive. She was an impressive witness. I accept her evidence notwithstanding the fact that her memory was not perfect and there are minor inconsistencies between what she told police officers and her evidence to the court on peripheral matters. There are no inconsistencies in the evidence of the complainant as to the core evidence, that is, her evidence as to the four alleged offences themselves.
I accept the evidence of the complainant as to each of the four alleged acts of intercourse as proof beyond reasonable doubt.
I do not accept the evidence of the accused denying the offending.
In these circumstances I find each of counts one to four inclusive to have been proved beyond reasonable doubt.
In the case of each count there will be a verdict of guilty.