R v H - [2023] SADC 165

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H
Criminal Trial by Judge Alone
[2023] SADC 165
Reasons for the Verdicts of her Honour Judge Kudelka
5 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The accused is charged with sexually assaulting and assaulting his partner's daughter over a period of six years from 31 December 2005 to 1 January 2011 when the complainant was aged 10 to 15.
The prosecution has not proved the charges to the standard of beyond reasonable doubt.
Verdicts: Not guilty of counts 1 - 10.
Evidence Act 1929 (SA) s 34P(2)(a), s 34M, referred to.

R v H
[2023] SADC 165

It is alleged that the accused sexually assaulted and assaulted his partner’s daughter over a period from 31 December 2005 to 1 January 2011. The accused lived with the complainant’s mother, the complainant and the complainant’s younger brother during that period. The accused was then aged 35 to 40; the complainant was aged 10 to 15.
The accused is charged on Information dated 23 February 2015 with the following offences:-
·unlawful sexual intercourse with a person under 14 years (count 1),[1]
·unlawful sexual intercourse with a person under 14 years (count 2),[2]
·unlawful sexual intercourse with a person under 14 years (count 3),[3]
·indecent assault (count 4),[4]
·indecent assault (count 5),[5]
·gross indecency (count 6),[6]
·indecent assault (count 7),[7]
·indecent assault (count 8),[8]
·unlawful sexual intercourse (count 9)[9] and
·assault (count 10).[10]
[1]     Section 49(1) of the Criminal Law Consolidation Act 1935 (CLCA). It is alleged that between 31 December 2005 and 1 January 2008 the accused caused the complainant to perform fellatio upon him.
[2]     Ibid. It is alleged that between 31 December 2005 and 1 January 2008 the accused penetrated the complainant’s vagina with his penis.
[3]     Ibid. It is alleged that between 31 December 2005 and 1 January 2008 the accused penetrated the complainant’s vagina with his penis.
[4]     Section 56 of the CLCA. It is alleged that between the 31 December 2005 and 1 January 2009 the accused touched the complainant’s underwear.
[5]     Ibid. It is alleged that between 31 December 2005 and 1 January 2009 the accused rubbed his penis on the complainant’s body.
[6]     Section 58 of the CLCA. It is alleged that between 31 December 2007 and 1 September 2009 the accused rubbed his penis in the presence of the complainant.
[7]     Section 56 of the CLCA. It is alleged that between 31 December 2008 and 1 January 2011 the accused kissed the complainant on her mouth.
[8]     Ibid. It is alleged that between 31 December 2008 and 1 January 2011 the accused rubbed his penis on the complainant’s body.
[9]     Section 49(3) of the CLCA. It is alleged that between 31 December 2008 and 1 January 2011 the accused penetrated the complainant’s vagina with his penis.
[10] Section 20(3) of the CLCA. It is alleged that between 31 December 2009 and 1 January 2011 the accused assaulted the complainant.
It is alleged that counts 1 to 6 were committed when the family lived in Kurralta Park between 31 December 2005 and September 2009. The family then moved to live in regional South Australia. It is alleged that counts 7 to 10 were committed at or near the family home in regional South Australia in the period up to January 2011.
This is a retrial. The first and second trials occurred in March 2016 and June 2018 respectively.
At trial, the complainant’s evidence comprised the recorded evidence from the first trial,[11] the recorded evidence from the second trial[12] and further evidence at trial.
[11] Exhibit P1A. The transcript was an aide memoire, MFI P1B and Exhibit P1C.
[12] Exhibit P1D. The transcript was an aide memoire, MFI P1E.
The prosecution also called evidence from Mr SK about the ownership of a car (relevant to count 8), the complainant’s former partner Mr LG (complaint evidence) and Ms LM (friend of the family, relevant to count 4).
The prosecution tendered the transcript of the accused’s evidence from the first trial.[13]
[13] Exhibit P20.
The accused did not give evidence at trial.
The defence called evidence from the complainant’s brother and mother. The defence also tendered transcript of the evidence of the accused’s mother from the second trial[14] and the complainant’s sister from the first trial.[15]
[14] Exhibit D24.
[15] Exhibit D25.
By electing to give evidence at the first trial and to call evidence at this trial, the accused took on no onus of proof. The prosecution must prove the allegations and do so to the standard of beyond reasonable doubt.
The evidence
The complainant gave evidence that her parents separated when she was about five years old. Her brother is about 18 months her junior and her sister is about 10 years older than her.[16]
[16] Exhibit P1C, T19.
There was no dispute that the complainant’s mother formed a new relationship with the accused.
The accused gave evidence that he met the complainant’s mother in 2001 and they started living together at his place about two weeks later when the complainant was about five years old, and the complainant’s brother was about four years old.[17]
[17] Exhibit P20, T267-T268.
The family lived at different places before moving into the Kurralta Park address. The complainant changed primary school when they moved to that address. She changed to the relevant primary school on 1 September 2003.[18]
[18] Exhibit P1.
The complainant finished primary school at the end of 2008 and started high school on 27 January 2009. They were still living at Kurralta Park.
The complainant gave evidence that when they lived at Kurralta Park, her mother worked a few jobs on weekdays, every Thursday late at night and sometimes on weekends. The complainant and the accused were sometimes home alone together on Thursday nights when her brother had a sleepover with friends or on weekends when her brother was out with his friends or riding his bike.[19] Sometimes he was alone at home with the complainant and her brother, or just with the complainant.[20]
[19] MFI P1B, T33 - 34.
[20] Exhibit P20, T300.
The accused did not dispute that evidence.
There was no dispute that the accused spent time renovating a bus in the back yard of the Kurralta Park address.
There was no dispute that the family moved to regional South Australia in 2009 when the complainant was in Year 8. She commenced at the relevant high school on 16 September 2009.[21]
[21] Exhibit P1.
The complainant gave evidence that after they moved to regional South Australia, there were times when she was at home alone with the accused because her mother was working, including on weekends.[22] The accused gave evidence that there were times during the week that he was alone with one or both of the children because the complainant’s mother was at work, but she did not work on weekends.[23]
[22] MFI 1B, T34-35.
[23] Exhibit P20, T301.
There was no dispute that the complainant left home in 2010. She moved in with her sister who lived closer to Adelaide and then with her biological father.
Uncharged sexual conduct
The complainant gave evidence that the accused loved her a lot. He was always affectionate, gave her cuddles and bought her things.[24]
[24] MFI P1B, T36.
The relationship changed when she was in Year 6, aged about 10 or 11.
They had passionate open mouth kisses and held each other tight; the accused held her bottom when they hugged.[25] They kissed almost every day, ‘whenever he had the opportunity’.[26] Kissing occurred in the accused’s bedroom, the lounge room, the dining room, both bedrooms the complainant used, and in the back of the bus.[27]
[25] MFI P1B, T38.
[26] MFI P1B, T40.
[27] MFI P1B, T40.
The accused used to touch himself in front of her ‘whenever he had the opportunity’.[28] On those occasions, he wore clothes, a dressing gown or a purple sheet. He wore the purple sheet like a cape. [29]
[28] MFI P1B, T41.
[29] MFI P1B, T51 - 52.
She knew he wanted a ‘big hug’[30] when he walked around the house with a sheet around him[31] or with his robe undone.[32]
[30] MFI P1B, T52.
[31] MFI P1B, T51.
[32] MFI P1B, T52.
A ‘big hug’ was when she sat on top of him.[33] This happened ‘all the time’.[34] The accused lay on his bed, with or without clothes on. She sat on top of him so that her vagina touched his penis either through clothes or skin on skin. The accused held her hips and got her to move on top of him until he said he was close. She then lay next to him whilst he masturbated and ejaculated. Otherwise, he would do that when she was not in the room. She gave evidence that it felt good, she had an orgasm sometimes but did not understand then what that was.[35] She gave evidence that ‘I was feeling like I was wanted’.[36]
[33] MFI P1B, T47.
[34] MFI P1B, T53.
[35] MFI P1B, T50.
[36] MFI P1B, T50.
If she wanted something she would have to give the accused a big hug.[37] At the time of their big hugs, the accused talked about what reward she would get.[38] He also called her princess and said she was beautiful.[39]
[37] MFI P1B, T47.
[38] MFI P1B, T54.
[39] MFI P1B, T54.
The passionate kissing happened before, during and after the big hugs. The accused used to give her soft gentle kisses on her breasts. She liked it, ‘it felt good’.[40] The accused kissed her on the vagina once. She liked it but was a bit nervous.[41]
[40] MFI P1B, T55.
[41] MFI P1B, T55.
The complainant gave evidence that they had ‘big hugs’ on the bed and in the bus on occasions before and after count 3. In response to being asked whether ‘big hugs’ happened once or more than once in the bus, she gave evidence that ‘it was so often’.[42] They engaged in passionate kissing in the bus on occasions before and after count 3.
[42] MFI P1B, T74.
When they moved to regional South Australia, they would often go out collecting firewood in the yellow Suzuki and passionately kiss each other.[43] There was one occasion when she was driving, and the accused had his hand on her lap.[44] She stopped the car and they started kissing. Her foot came off the brake and the car almost rolled into a wombat hole.[45]
[43] MFI P1B, T118 – 119.
[44] MFI P1B, T118.
[45] MFI P1B, T118, T230.
The evidence of the uncharged discreditable conduct was admissible pursuant to s 34P(2)(a) of the Evidence Act 1929. If proved, the evidence may be used to give context to the charged offences. Each of the charged occasions was part of an ongoing course of conduct on the part of the accused in the sense that the charged occasions did not come ‘out of the blue’. The ongoing nature of the conduct may be used to explain why the complainant reacted in the way she did on a charged occasion and why the accused might be emboldened to act in the way he did on a charged occasion, especially if the charged conduct was particularly brazen.
This discreditable conduct, if proved, must not be used to reason that because the accused has done other bad things, he is a bad person and therefore the sort of person who is more likely to have committed the crime with which he is charged.
Other discreditable conduct
The complainant gave evidence that the accused was violent towards her[46] and her mother.[47] The complainant left home in 2010 because he was getting increasingly violent.[48]
[46] MFI P1B, T107.
[47] MFI P1B, T174.
[48] MFI P1B, T93, 151.
The evidence of the uncharged discreditable conduct was admissible pursuant to s 34P(2)(a) of the Evidence Act 1929. If proved, the evidence may be used to give context to counts 2 and 10. The violence against the complainant’s mother on the occasion the subject of count 2 was not out of the blue; nor was the violence against the complainant the subject of count 10. The evidence may also explain why the complainant reacted in the way she did to counts 6 onwards because she started to become frightened of the accused.[49]
[49] MFI P1B, T226.
This discreditable conduct, if proved, must not be used to reason that because the accused has done other bad things, he is a bad person and therefore the sort of person who is more likely to have committed the crime with which he is charged.
Count 1 (fellatio)
The complainant gave evidence that the accused called her from his bedroom. She went into his bedroom where he was lying on the bed with a purple sheet over him. He called her over and asked her to kiss it, pointing to his penis. She kissed his penis through the sheet. He then asked her to kiss it again. He removed the sheet, and she could see that he was completely naked with an erect penis. She leant over and kissed his penis for a couple of seconds. It felt warm. He then gently told her to open her mouth. She leant over and his penis went inside her mouth for maybe a couple of seconds while his hands were on the back of her head; she ‘stayed still as a statue’.[50] She gave evidence: ‘I was scared because it was new. Usually, I felt in control, but I didn’t feel in control’.[51] She felt his penis at the back of her throat. When he let go of her head, his penis was out of her mouth, so she walked out of the room. It was the first and only time he asked her to kiss his penis and put his penis in her mouth.
[50] MFI P1B, T44.
[51] MFI P1B, T44.
Count 2 (table in living room)
The complainant gave evidence about the first time the accused had sexual intercourse with her.
She was 11 years old and wanted to go on the Year 6 school camping trip at a wildlife park. It is agreed that she was in Year 6 in 2007.[52] She asked the accused about the trip ‘because no matter what I ask mum, mum would say no’.[53] She knew the accused would persuade her mother to let her do what she wanted. She may have already asked her mother about it.
[52] Exhibit P1.
[53] MFI P1B, T56.
The topic came up when they were walking down the street to the shops. She told the accused the camping trip would cost money. He said he would talk to her mother and that it would mean the complainant ‘would have to give him a bigger hug’.[54] He said his penis would go in her, but the complainant did not know what he meant. She just went along with whatever he was saying because she really wanted to go on the school camp.
[54] MFI P1B, T57.
When they got back home, they walked into the dining room. The accused said that a bigger hug would feel good, but that it might hurt. He picked her up and put her on the table. She lay down on her back and he pulled her bottom up off the table. He rolled up the maxi dress that she was wearing. He held her legs up a bit and stood between them. He pulled her underwear to the side, spat on his hand, and rubbed her vaginal area. She felt scared because she was not in control. She kept quiet and felt like she could not move. The accused put the tip of his penis inside her vagina. It felt like her vagina was burning and hurt so much that she started crying and she screamed. He pulled out and said he was sorry. As a reward, he let her go swimming in the pool at the back. It hurt more when she got in the pool, like stinging.
After her swim, she had a shower to wash off the chlorine. There was blood inside the bottom of her bathers. She stayed in her room and kept to herself.
Count 3 (bus)
The complainant gave evidence about an occasion when her mother and brother were at home. She had been swimming in the pool and went looking for her mother.
The accused was in the bus and called for her to come inside. She walked into the bedroom area where the accused was lying on the main bed. He got up from the bed, grabbed her arm and twisted it behind her, which was painful. He bent her over the bunk bed railings. She was scared because he did not ever restrain her like that.
She was wearing her two‑piece bathers. He bent her over a little bit more and ‘it felt like he had tried to put his penis inside my bum’.[55] She could feel the top of his penis go in. It was painful, like burning. She jolted up and said that it hurt and ‘that it was my bum he was in’.[56] He had never done that before. When she jolted, she straightened up and tried to turn to push him away, but he was holding her arm behind her back. He pushed her to go back over the railings and tried to put his penis inside her vagina, but she had tightened her legs.
[55] MFI P1B, T70.
[56] MFI P1B, T70.
Her brother came running out of the house calling for her. The accused let her go and she left the bus. She gave evidence: ‘I couldn’t believe he did that. I didn’t – I didn’t understand why he tried to put it in my bum. We never talked about that or anything’.[57]
[57] MFI P1B, T72.
He did not try to put his penis in her bottom again.
At the second trial, the complainant gave evidence in cross‑examination that there was a bunk bed in the bus with a railing that ran horizontally halfway between the lower and upper beds.[58] That was the railing which the accused bent her over. At that time, the railing came up to about the height of her breasts. When she was bent over, the railing came underneath one armpit whilst the accused held her other arm behind her back.[59]
[58] MFI P1E, T106.
[59] MFI P1E, T107.
Count 4 (camping trip)
The complainant gave evidence that when she was 11 or 12, she went on a camping trip along the Murray River with her family and another family comprising two parents and five children. It was in either 2006 or 2007 because she was in either Year 5 or Year 6 at school. The weather was hot. She could not remember whether the camping trip was at Christmas or Easter time, or during school holidays.[60]
[60] MFI P1B, T75; MFI P1E, T113.
She wanted to go swimming but did not take her bathers with her. Instead, she wore her underwear and asked the accused if she could borrow one of his tops. He said, ‘that’s okay’[61] and gave her a T‑shirt to wear. She told him in front of her mother that she owes him a big hug when he gets home.
[61] MFI P1B, T76.
Everyone was swimming in the river. When they were in the water, the accused touched her on the outside of her underwear, running his fingers along the outside of the part that goes between her legs. His fingers touched her skin as he was doing that. His fingertips touched her vagina on the outside. The rubbing went on for a while under the water. She stayed there for a while; ‘I didn’t mind it, it was just normal to me’.[62] He was doing it gently. The touching ended when they got out of the water because it would have been teatime. That was the only time he touched her in the river like that.
[62] MFI P1B, T77.
It was not the trip when her brother was injured in a motorbike accident.[63]
[63] MFI P1E, T102.
Count 5 (graduation)
The complainant gave evidence about the day of her Year 7 graduation ceremony when she and the accused were almost caught by her mother.
The complainant wanted to go to the hotel with the students after the ceremony, but it cost money. The accused helped organise a lift from the school to the hotel which would have meant she was allowed to go. Her mother was working, and she did not know where her brother was.
The complainant went into the accused’s bedroom where he was lying on his back on his bed. He did not have a top on, and his pants were pulled down. She was wearing a dress for her graduation. She walked straight in and got right on top of him. She knew that was what he wanted because he was lying like that which just meant to do it.[64]
[64] MFI P1B, T81.
His penis rubbed her vagina area for a couple of minutes. She gave evidence that she liked it.

They then heard the front door close which meant that her mother was home. The accused threw the complainant up in the air to get her off him. She hit her head on the bedside table. He kicked her to get her under the bed. She got under the bed and was whimpering and crying because she hit the right side of her head really hard on the table. Her mother was in the room getting out of her work clothes and the accused was trying to rush her out of the room. They left the room together and then the complainant went straight to her room.
The complainant went to her graduation celebration and then to the hotel. When she got back home, the accused came into her bedroom and told her that she was just a kid and no‑one would believe anything that she said; he was ‘really mean’.[65] He had never said anything like that to her before but after that occasion, he always said that to her.
[65] MFI P1B, T84.
In cross‑examination, the complainant gave evidence that there were a lot of shoes and make‑up stored underneath the bed.[66] She could not understand how her mother did not see or hear her getting under the bed. She did not think that her mother would have cared if the accused was caught.[67]
[66] MFI P1B, T221.
[67] MFI P1B, T221.
During cross‑examination in the second trial, the complainant disagreed with the suggestion that there was a mattress stored under that bed.[68]
[68] MFI P1E, T118.
Count 6 (make-up)
The complainant gave evidence about an incident that occurred in the bathroom when she was in Year 8.
The complainant was getting ready for school in the bathroom, putting make‑up on. The accused came into the bathroom, started staring at her and then touched his penis through his clothes for a couple of minutes.[69] She felt uncomfortable, so she told the accused to get out. She had a boyfriend at that time, and she was starting to feel that sexual interaction with the accused was wrong.[70]
[69] MFI P1B, T88.
[70] MFI P1B, T90.
The accused left the bathroom, and she went to her bedroom. The accused followed her into her bedroom. He was angry and yelling at her, calling her a slut, and saying that she was exactly like her mum, and she didn’t need to put make‑up on. He smashed her make‑up kit by punching down on it with a closed fist.[71] Her mum came into the room to see what the accused was yelling about and defended her use of make‑up. The accused then grabbed her mother by the throat. The complainant ran out of her room.[72]
[71] MFI P1B, T91.
[72] MFI P1B, T92.
In cross‑examination, the complainant said that she was often told off for wearing too much make‑up to school. Consequently, she took it to school and applied it there, removing it before she returned home.[73]
[73] MFI P1B, T191.
Count 7 (garage kissing)
The complainant gave evidence about an occasion in the garage of the home in regional South Australia.
She wanted to go camping with her friends and asked her mum if she could, but her mum said no. She wanted to persuade the accused to persuade her mum to let her go.[74]
[74] MFI P1B, T119.
The accused was in the garage doing something with the speedboat. She approached the accused and started touching his genital area through his jeans.[75] They were kissing passionately with open mouths for a couple of minutes. The accused’s penis became erect as they were kissing. She felt she was in control and they each liked it as much as the other.[76] It ended when the accused walked away.[77]
[75] MFI P1B, T120.
[76] MFI P1B, T121.
[77] MFI P1B, T121.
The accused persuaded her mum to let her go camping.[78]
[78] MFI P1B, T121.
Count 8 (yellow Suzuki)
The complainant gave evidence about another occasion in the garage.
The accused was fixing his Suzuki car.[79] She walked into the garage and, without talking, the accused picked her up and put her on the bonnet of the car.[80] Her bottom was almost off the edge. The accused pulled his penis out of his pants and rubbed it against her.[81] He moved his penis in an up and down motion against her vagina.[82] She was turned on and liked it. It did not go on for very long because they heard the back door open and dog food being poured into a metal bowl. The accused stopped and walked out of the garage.
[79] MFI P1B, T115.
[80] MFI P1B, T116.
[81] MFI P1B, T114.
[82] MFI P1B, T117.
Earlier that day she had spoken to the accused about learning to drive a manual car[83] and assumed that would be her reward for allowing the accused to touch her in this way.[84]
[83] MFI P1B, T115.
[84] MFI P1B, T116.
In cross‑examination, the complainant could not remember if there was an air scoop on the bonnet.[85] She weighed about 80 kilograms at the time[86] and said the accused was a strong man.
[85] MFI P1B, T229.
[86] MFI P1B, T228.
At the second trial, the complainant gave evidence in cross‑examination that she was wearing an aqua coloured dress she received for her 15^thbirthday (April 2010). She was positioned in the centre of the bonnet with her bottom almost off the edge.[87] The accused held her legs in a way that prevented her from sliding off. She could not feel anything against her back while this was happening because she was sitting straight up.[88] She disagreed with the suggestion that the car was sold in 2009.[89]
[87] MFI P1E, T122 – 123.
[88] MFI P1E, T123.
[89] MFI P1E, T125.
At this trial, the complainant gave evidence in cross‑examination that she may have received the aqua dress for her 14^th or 15^th birthday, but was adamant that it was a birthday present.[90] She could not remember who gave it to her, but assumed that her mum did.[91] She disagreed with the suggestion that the car was sold in 2009 and gave evidence that it was still at the property when she left home in 2010.[92] She knew nothing about the transfer of the car to someone else.[93]
[90] T28.
[91] T32.
[92] T30.
[93] T35.
Count 9 (maxi dress)
The complainant gave evidence about an occasion in 2010 when she had sexual intercourse with the accused in his bedroom.
She was wearing a green and black maxi dress but no underwear because all her underwear was getting washed that day.[94]
[94] MFI P1B, T125.
The complainant went into the accused’s bedroom because she wanted to ask whether she could sleep over at her sister’s house. She went in at a time when she thought her mother might be finishing work because she did not want to have a ‘big hug’ with the accused.[95] She asked the accused, but he was in a bad mood and did not react well to her request.[96] The accused pushed her backwards onto the bed without saying anything to her. Her dress flicked up and the accused could see she was not wearing underwear.[97] The accused took off his shorts but kept his underpants on. He got onto the bed and positioned himself between her legs.[98] She opened her legs because she assumed that was what he wanted. He took out his penis, masturbated until he was erect and then he put his penis inside her vagina.[99] The accused had sex with her as hard and fast as he could.[100] It was different to the previous occasion at Kurralta Park because he continued even though he could see that she was not enjoying it and was crying. He was holding her in place around her bottom and thighs. It ended when he pulled out his penis and masturbated until he ejaculated onto the quilt. She then walked straight out to her bedroom.[101]
[95] MFI P1B, T126.
[96] MFI P1B, T126.
[97] MFI P1B, T127.
[98] MFI P1B, T128.
[99] MFI P1B, T128-T129.
[100] MFI P1B, T129.
[101] MFI P1B, T130.
The sexual intercourse was very painful and she had red marks on her bottom and thighs afterwards. She was scared because she did not want to do it anymore, she knew he had not worn a condom and she did not want to get pregnant.[102]
[102] MFI P1B, T130.
Later that day, she was in the kitchen making noodles for lunch. The accused asked if he could have a hug and she said no. He then grabbed her arm and pulled her into him.[103] He pushed her face into his chest, and she could not breathe. He said, ‘you think you can get a hug when you ask for it but what about when I ask for it’.[104]
[103] MFI P1B, T132.
[104] MFI P1B, T133.
Count 10 (assault at bus stop)
The complainant gave evidence about an occasion when the accused slapped her across the face.
She put on her school skirt rather than tracksuit pants because it was hot. That made the accused angry.[105] He told her not to wear a skirt because her legs were showing.[106] The complainant ignored him and left the house to catch the school bus.
[105] MFI P1B, T146.
[106] MFI P1B, T147.
It was about 7.20 or 7.30 am. She waited at the end of the street next to the school bus. The bus driver usually arrived to open the bus at around 7.40 am. There was no-one else waiting, she ‘got there earlier’.[107]
[107] MFI P1B, T147.
The accused came from the house and confronted her, telling her she looked like a slut, her legs were showing. He said you are exactly like your mum. He was really harsh, mean, angry. The accused backhanded her across the left side of the face then slapped her on the right side of her face. It was fairly hard, pushing her backwards. She then put her pants on, took her skirt off and gave it to the accused who walked back home. Both her cheeks were red for the entire day.[108]
[108] MFI P1B, T148.
Initial complaint
The complainant gave evidence that her boyfriend, Mr JG, was the first person she told about what the accused had done to her. They had been together for about one year and were living together at the time.[109]
[109] MFI P1B, T157.
The complainant gave evidence that she was having night terrors in her sleep.[110] Mr JG noticed that she was also frightened when he tried to touch her when she was sleeping.
[110] MFI P1B, T158.
The complainant gave evidence that Mr JG said, ‘why are you doing that’.[111] She told him that ‘she did not have the best upbringing with my mum’s boyfriend’. She identified this person to Mr JG as the accused. She told Mr JG that the relationship was sexual and that she had done things with the accused when she was a child.
[111] MFI P1B, T158.
She gave evidence that she had not previously told anybody because she felt guilty and ashamed.[112] She did not want anyone to know about it and she believed that she was to blame for it happening. The accused told her more than once that nobody would believe her.[113]
[112] MFI P1B, T159.
[113] MFI P1B, T160.
Mr JG gave evidence that he was in a relationship with the complainant in about 2011.[114] One night the complainant was tossing and turning in her sleep and said ‘no, stop [first name of accused], stop’.[115] The following morning he told the complainant what she said in her sleep. She walked away, upset.[116]
[114] T46.
[115] T46-47.
[116] T47.
Later that day he told her ‘Whatever happened, you can tell me. I’ll always be there for you’.[117] The complainant told him that when she was little, the accused had ‘done stuff to her’.[118] He could not remember her precise words. The conversation took place about one year into their relationship.
[117] T48.
[118] T48.
In cross‑examination, Mr JG said that before this conversation the complainant had been frequently upset for a couple weeks and it was around this period that they would sometimes argue.[119]
[119] T50.
The evidence is admissible pursuant to s 34M(3) of the Evidence Act 1929 in relation to counts 1 to 9. It is not admitted for the truth of what was said but is admitted for the purposes set out in s 34M(4)(a). There may be varied reasons why an alleged victim of a sexual offence makes a complaint at a particular time or to a particular person. The complainant made her complaint to Mr JG following his observations of her disturbed sleep. Her complaint to Mr JG was in very general terms. I did not find this evidence to be of much assistance in assessing the complainant’s credibility.
Evidence of the accused about charged/uncharged conduct
The accused gave evidence at the first trial and denied the allegations.[120]
[120] Exhibit P20, T271.
His relationship with the complainant was good; he treated her like his own daughter, and she used to call him ‘dad’, as did her brother.[121]
[121] Exhibit P20, T270.
He gave the complainant a cuddle or a kiss to say goodnight or on birthdays. There was never anything sexual about those interactions.[122] If the complainant was sad or depressed, she would come towards him with her arms open.[123]
[122] Exhibit P20, T270.
[123] Exhibit P20, T304.
He used the term ‘big hug’ with the complainant, but there was nothing sexual about it.[124] About twice a week, until the complainant was 15, the complainant would look at him and he clapped his hands and said ‘big hugs’.[125] A ‘big hug’ was different to a normal hug which was just a hug and he let go. For a normal hug, he would not clap his hands, she would not run towards him for him to catch her flying through the air and he would not spin around.[126] They had big hugs in front of the complainant’s mother and family friends.[127] The accused accepted that he did not use the terminology ‘big hugs’ with the complainant’s brother or hug him in the same way as the complainant.[128] He never said he owed the complainant a big hug.[129]
[124] Exhibit P20, T287.
[125] Exhibit P20, T320.
[126] Exhibit P20, T321.
[127] Exhibit P20, T322-323.
[128] Exhibit P20, T324.
[129] Exhibit P20, T322.
The accused gave evidence that his relationship with the complainant’s mother was loving; he was never violent toward her.[130] They only ever argued about money. He was never violent toward the complainant or her brother.[131]
[130] Exhibit P20, T268.
[131] Exhibit P20, T271.
The complainant had arguments with her mother, but he believed their relationship was normal.[132] When the complainant was younger (age nine, 10 or 11), the arguments occurred when she got back from seeing her father who had drug and alcohol issues. The complainant’s mother stopped the complainant from seeing her father for two to three years.[133] When the complainant started seeing her father again, she was argumentative when she returned home, wanting to pick fights about food and clothes.
[132] Exhibit P20, T290.
[133] Exhibit P20, T275.
Discussion
The prosecution case rests upon the complainant’s evidence.
The main issue is whether the prosecution has proved beyond reasonable doubt that the acts which are the subject of the charges did in fact occur. The accused gave evidence denying the charged offences and the commission of any uncharged acts.
The prosecution submitted that the complainant’s demeanour was consistent with the demeanour of a truthful witness.[134] The defence submitted that the complainant’s demeanour was more defensive in the present trial compared to the first and second trial.[135]
[134] T174.
[135] T210.
I did not find there to be anything significant about the complainant’s demeanour in a positive or negative sense.
The prosecution submitted that the way in which the complainant expressed her feelings toward the accused and his sexual conduct was indicative of someone who had lived through those experiences.[136] In relation to some of the sexual conduct, the complainant gave evidence that she liked the physical sensations and derived sexual pleasure. It was submitted that they were honest recollections of events that did in fact occur.[137]
[136] T174 – 175.
[137] T178.
I am unable to place much weight on that submission. The complainant was an adult in her 20s when she gave evidence (age 20 at the first trial, 22 at the second trial and 27 at this trial). There were multiple occasions during her evidence when she said she felt sexual pleasure during some of the interactions with the accused. I appreciate why the prosecution made the submission. However, I did not find the complainant’s repetition of that evidence to be necessarily indicative of an honest account of events that did in fact occur.
The complainant was contradicted on many aspects of her evidence, including circumstances surrounding the charged occasions. She was contradicted by the accused, her mother, brother, sister and paternal grandmother. The prosecution made a general submission that the defence witnesses should not be believed.[138] It was submitted that their evidence was given for the primary purpose of assisting the accused by saying things that would make the complainant’s account seem impossible or implausible. For example, the complainant’s mother and brother claimed they had a good relationship with the complainant but admitted that neither of them spoke to the complainant about the allegations to get her side of the story but instead instantly favoured the accused.
[138] T183.
When considering the evidence, I have been mindful of that submission and the evidence that the accused, the complainant’s mother and the complainant’s brother had discussed some aspects of the allegations.
It was plain that the complainant’s mother and brother disbelieved the complainant. The complainant’s brother made it clear why he disbelieved the complainant. He was aware the complainant had given evidence at the first trial that she had sexually assaulted him, and he gave evidence that that never occurred: ‘that’s how I know this whole case with [the accused] is false because I know that never happened to me so how could any of this have happened in the first place’.[139]
[139] T98.
On that topic, the complainant gave evidence at the first trial that when the family lived in regional South Australia, there was one occasion when she sexually assaulted her brother. They were both lying on the floor in the rec room watching a movie called ‘Raise Your Voice’.[140] She started touching her brother on his penis over his clothes.[141] She masturbated his penis in the same way as she did with the accused. Her brother reacted by touching her breasts and she guided his hand to her vagina.[142] He touched her there for a while.[143] They eventually stopped, and she left the room. She liked the physical feeling of being touched on her vagina. He asked her to do it again later that day, but she said no. It never happened again, and they never spoke about it. She did not know why it happened, ‘I felt disgusted and really sick and ashamed of myself’.[144]
[140] MFI P1B, T143.
[141] MFI P1B, T143-T144.
[142] MFI P1B, T144.
[143] MFI P1B, T145.
[144] MFI P1B, T145.
The defence submitted that the complainant lied about sexually assaulting her brother. Her alleged victim denies that it ever occurred. It was submitted that her lie infects and permeates her evidence about the accused’s sexual conduct towards her.[145]
[145] T212.
The prosecution did not address this issue.
The complainant’s brother is not much younger than the complainant, making it unlikely that his young age might be a reason for him not being able to remember. However, his evidence was not that he could not remember. He clearly stated that it never happened.
During cross‑examination, the complainant became very upset when it was suggested to her that she was lying about that sexual contact. She gave evidence: ‘I wish it was the situation, but I did it, I turned into [the accused] and I did it’.[146]
[146] MFI P1B, T237.
This trial is not about whether the complainant sexually abused her brother. However, the defence has submitted that the complainant has made a false confession, perhaps to bolster her allegations against the accused by suggesting that she has acted out.
The complainant also gave evidence that the accused was violent toward her mother. It was one of the reasons why the complainant left home.[147] The complainant’s mother, who is the alleged victim of that offending, gave evidence that the accused never hit her.[148]
[147] MFI P1B, T151, 174.
[148] T126.
On the prosecution case, the complainant’s mother must be lying about that in order to assist the accused in his defence of these allegations. I did not detect that she was under any pressure to lie about the accused’s violence toward her, but I acknowledge that would be difficult to detect. She was certainly forthright in her denials of violence perpetrated against her by the accused. There was no support for the complainant’s evidence that the accused was violent toward her mother. The complainant’s brother was not directly asked whether he observed any such violence, but he was asked about his relationship with the accused. His answer was that the accused ‘made me happy because I could see how much he loved my mum and after I seen my mum go through things that she went through with my father, you know’.[149] The evidence was that the complainant’s biological father used drugs and was violent toward the complainant’s mother.[150]
[149] T107.
[150] T124.

The complainant also gave evidence that the accused was violent toward her brother.[151] The complainant’s brother gave evidence that the accused never hit him.[152]
[151] T208.
[152] T79.
If the complainant has lied about those matters, then those lies are significant matters adverse to her credibility. The complainant has claimed that her brother and mother are victims of criminal offences, but both have denied that to be so. The defence submission has some weight. For the defence, these are significant matters which have an adverse impact upon the complainant’s overall credibility.
I cannot say that I disbelieve the complainant’s brother or mother on that aspect of their evidence, which means I must be cautious when assessing the credibility of the complainant’s allegations against the accused.
The complainant was extensively cross‑examined about lies she told as a child. Records held by Families SA record that on 12 August 2003 she said she lied about the accused hitting her.[153] She gave evidence admitting that she lied ‘a lot back then’.[154] I did not consider her admission about that to be significant in the determination of the main issue in this trial. She was a young child at the time of her admitted lies, all of which could have been told for many different reasons. They were relatively minor matters peripheral to these allegations.
[153] Exhibit P21.
[154] MFI P1B, T169.
The defence submitted that the evidence reveals a motive on the part of the complainant to lie. She was not only close to her biological father but also still has a serious conflict with and, at times, hatred of, her mother. She remains jealous of the attention that her mother paid to her brother. It is her mother’s attention that she truly craves.[155] It was put to her that she was making these allegations up to manipulate people for some reason. She denied that and gave evidence that this case is about ‘me getting my justice. The trial, I used to be, the amount, the amount of knowledge I have now, I know he wasn’t just, he wasn’t a – he was a predator, he picked on me, I was a vulnerable child who didn’t have a dad constantly in my life. He took advantage of that’.[156] The defence submitted that her response about having an absent father was significant.
[155] T209 – 210.
[156] MFI P1E, T132.
The prosecution submitted that the complainant denied any such motivation and, further, if she had such a motive, then she could have said something when she was living in the family home. The complainant has not put herself through this for some kind of revenge against her mother or to simply get attention.[157]
[157] MFI P1B, T200 – 202.
During her evidence, the complainant expressed dislike and hatred toward her mother. She made it plain that she believed her mother did not love her.[158] It was also plain that her emotions were mixed: ‘I do have love for my mum, but it’s not – I love her, but I hate her and I try not to love her, because she’s never loved me and so she doesn’t deserve my love’.[159]
[158] MFI P1B, T244.
[159] MFI P1B, T244.
The complainant’s sister gave evidence that the relationship between the complainant and her mother was ‘strained’ when they were at Kurralta Park. The complainant’s sister is 10 years older than the complainant. She had moved out of home by the time the family lived at Kurralta Park, but she visited. She described the complainant as ‘very argumentative, she was very hard to deal with. She would lie a lot, she just didn’t seem very happy with life in general’.[160]
[160] Exhibit D25, T302.
The complainant was open and forthright about her feelings toward her mother. On one view, they could be feelings arising from a sense of neglect and abandonment during her childhood and these allegations have been made up to get the attention she never had. On another view, she has these feelings because she was sexually abused by the accused as a child and feels let down by her mother for not protecting her from the accused, for disbelieving her allegations and/or for taking the accused’s side.
The accused has no onus to prove a motive on the part of the complainant to lie. The prosecution must prove that she is telling the truth. Because of the potential multiplicity of reasons for the complainant’s expressed hatred and mixed emotions about her mother, I do not consider the totality of the evidence supports a motive to lie. Of course, the absence of a motive to lie does not mean that the complainant is telling the truth. It is entirely neutral.
Summary
I have considered each count separately.
The prosecution has not proved count 8 to the necessary standard because the objective evidence produced by the defence raises reasonable doubt about the reliability and credibility of the complainant’s evidence about this occasion which has not been dispelled.
I am unable to reject the combined force of the evidence from the defence witnesses about the dining room table which is the crime scene for count 2. The prosecution has not proved count 2 beyond reasonable doubt.
There are aspects of the complainant’s own account about counts 3 and 10 which mean that I am unable to be satisfied about the accused’s guilt to the standard of beyond reasonable doubt.
The complainant’s allegation that the accused was violent toward her mother in relation to count 6 and the combined force of the evidence of the accused and complainant’s mother about this occasion, including the complainant’s mother’s evidence that she was never a victim of the accused’s violence, are such that I am not satisfied beyond reasonable doubt that the accused is guilty of this offence.
In relation to each of counts 4 and 5 considered separately, the defence witnesses raised matters which may or may not be correct but which, in combination with my caution arising from the complainant’s evidence that her brother and mother are victims (see [117]) and my findings about counts 8, 2, 3, 10 and 6, leave me not knowing where the truth lies.
The inability to know where the truth lies is the position I reached after considering each of counts 7 and 9 separately.
Count 8
The defence case is that the indecent assault of the complainant on the yellow Suzuki could not have occurred in the circumstances alleged by the complainant because the yellow Suzuki was not owned by the accused at the relevant time.
At the first trial, the complainant gave evidence that at the time of this indecent assault, she was wearing a dress which was a present for her 15^thbirthday (in April 2010).[161] In cross‑examination at the second trial, she refuted the suggestion that the Suzuki had been sold some time before Christmas 2009: ‘It most definitely wasn’t because it was still there when I had asked [the accused] for, how to learn to drive a manual and he picked – and asked that day because earlier that day he picked me up and put me on the bonnet. I was passed my 15^thbirthday, I was wearing that aqua dress I got for my birthday so he most certainly had it when I was living there’.[162]
[161] MFI P1B, T116.
[162] MFI P1E, T124.
At this trial, the defence tendered an Extract from Entry in the Register of Motor Vehicles relating to the accused’s Suzuki car.[163] It records that the vehicle was acquired by Mr SK on 12 December 2009. Mr SK gave evidence that he purchased a yellow Suzuki car from the accused in December 2009.[164] He registered the car in his name about two or three days after purchasing it. He never loaned the car to the accused.
[163] Exhibit D17, T25.
[164] T44.
The complainant’s mother gave evidence about a time in 2009 when the accused received a speeding fine which led to the car being sold.[165] The fine caused them to fight over money; it was close to Christmas, and they needed money at that time. The complainant was living with them when it was sold; it was not at the house when she moved out.[166]
[165] T136.
[166] T137.
The accused gave evidence that he owned a Suzuki car. When they lived at Kurralta Park, he put a fan underneath the bonnet and fitted a scoop.[167] He took out the central support of the inside of the bonnet to fit the motor in so she would not have been able to sit on the bonnet.[168] He never had sexual contact with the complainant on that car. He did take the complainant out driving in that car.
[167] Exhibit P20, T285.
[168] Exhibit P20, T286.
I have doubt about the reliability of the complainant’s evidence in respect of this allegation. The evidence establishes that the accused was not in possession of the yellow Suzuki after the complainant’s 15^thbirthday.
When the complainant was reminded at trial of her evidence at the second trial, her immediate response was to state that she was now ‘confused between 14 and 15’.[169] She was not sure that the dress had been given to her for her 15^thbirthday; it could have been her 14^thbirthday. Her confusion now might be explained by the fact that the second trial was almost five years ago. It also might be explained by the trauma of having to give evidence for a third time. She gave evidence that she remembered being on the stand at the second trial, but did not remember the evidence, stating that ‘this in itself, is very traumatic so obviously my brain will try and protect me from retraumatising myself. If you understand about the brain and trauma’.[170] Nevertheless, the complainant was as resolute about her confusion now as she was about her certainty then.
[169] T27.
[170] T31.
The prosecutor submitted that there is scope for this offence to have occurred after the complainant’s 14^thbirthday (April 2009), after the family moved to regional South Australia (September 2009) and before the sale of the car (December 2009). There may be some scope for it, but the complainant’s immovable stance at the second trial has now been contradicted by objective evidence that the car was sold prior to her 15^thbirthday.
Further, contrary to the complainant’s evidence at the first trial that she wore the dress all the time,[171] the complainant’s mother gave evidence that she had never seen the aqua dress.[172]
[171] MFI P1B, T166.
[172] T162.
The accused also denied committing the offence and explained that it would not have been possible for the complainant to sit on the bonnet of the car because he had taken out the central support on the inside of the bonnet to fit the motor in.[173]
[173] Exhibit P20, T286.
The points raised by the accused and the complainant’s mother’s do not, on their own, leave me with doubt about the complainant’s evidence. However, the complainant’s prior immovable stance about the timing of this offending has been contradicted by objective evidence. The prosecution has not proved this allegation to the standard of beyond reasonable doubt.
Count 2
The complainant gave evidence that when she was in Year 6 (2007),[174] the accused had penile/vaginal intercourse with her on the octagonal dining table in the dining room at home.
[174] Exhibit P1.
There was evidence led about the instability of that table and whether it was in the dining room in the relevant time frame.
The accused gave evidence that the table was in the shape of a hexagon with a centre leg and three feet off the leg. It was very rickety and would not be able to withstand the weight of a person unless they stood directly in the middle of it. It would not have taken the complainant’s weight.[175] The complainant’s mother, brother, sister and paternal grandmother gave evidence to similar effect. During cross-examination, the complainant conceded that the table was old and a bit wobbly.[176]
[175] Exhibit P20, T277.
[176] MFI P1B, T213.
The complainant’s evidence that the table was inside at the time of this alleged offence in 2007 was against the weight of the evidence given by defence witnesses.
At the second trial, the complainant gave evidence that the table was originally in the dining room. It was suggested to her in cross‑examination that it was moved outside. She denied that, saying that the table was never moved outside.[177] It was suggested to her that when her maternal great‑grandmother stayed, the table was moved outside. She gave evidence that that was not the case.[178]
[177] MFI P1E, T103.
[178] MFI P1E, T104.
The complainant was shown a photo of herself and her great-grandmother sitting at a table outside.[179] She gave evidence that ‘if it’s the same table then it would have got moved inside but I know my nanna wasn’t living with us at the time this happened. So this, this is before that incident ever happened, that photo’.[180] Her evidence was that the incident happened ‘after my great grandmother had moved out’.[181] The table ‘most definitely did’ move back inside after that.[182]
[179] Exhibit D9.
[180] MFI P1E, T105.
[181] MFI P1E, T105.
[182] MFI P1E, T112.
The complainant’s mother gave evidence that the table in the photo (Exhibit D9) was the old dining room table. It was moved outside when her nanna moved in. It was ‘very unstable inside and my nanna used to walk around a lot leaning on the furniture, so it was moved outside for that, plus it was old and we got a new table to replace it’.[183] Her nanna lived with them for many years. At some point around the time the table went outside, the accused’s mother also stayed with them ‘for six months, maybe a little bit longer, I don’t really remember the time’.[184] The dining room became a bedroom (used by the complainant’s mother and the accused) and a pool table room but she was unable to remember the order of those two events.[185]
[183] T130.
[184] T130.
[185] T153 – 154.
The complainant’s mother was not directly asked whether the old dining room table moved back inside after her nanna moved out, but the strong inference from her evidence is that it did not. She gave evidence that it was in the dining room ‘for a very short time’[186]/‘a couple of weeks, if that’[187]/‘for a little while’.[188] They used the dining room table ‘maybe a couple of times, not often, we often ate in the kitchen’.[189] There was no suggestion that it was moved back inside after it had been moved outside.
[186] T129.
[187] T129.
[188] T153.
[189] T130.
At the second trial, the accused’s mother gave evidence that she lived at the Kurralta Park address for four to six weeks in 2004 when she was doing a massage course.[190] The complainant’s maternal great grandmother lived there at the time. The wobbly table had been in the original dining room ‘but nobody used the table, it was too wonky, and it was put outside, it stayed out there’.[191] She never saw it go back into the dining room after that. The dining room was converted into a bedroom which the accused and the complainant’s mother shared. After the complainant’s great grandmother moved out at the end of 2006, their bedroom (which had earlier been the dining room) was converted into a pool room. The table did not move back into the dining room, ‘the pool table went in there’.[192]
[190] Exhibit D24, T307.
[191] Exhibit D24, T311.
[192] Exhibit D24, T317.
The complainant’s sister gave evidence that she visited the Kurralta Park home on a weekly to fortnightly basis. The octagonal dining room table was ‘moved outside near the barbeque undercover’. When her great grandmother was living at that address, the table was outside, and the dining room was used as a bedroom.[193]
[193] Exhibit D25, T297.
I am unable to reject the body of evidence that the dining room table was moved outside several years before the complainant alleges that the accused had sexual intercourse with her on that table in the dining room. There is no support for the complainant’s evidence that the ‘wobbly’, ‘rickety’ and/or ‘unstable’ table was moved back inside after it had been moved outside. Based on the description of the table, such a move would seem to be counter intuitive. Also, the accused’s mother gave evidence that it was never moved back inside. On the whole of the evidence, I have doubt about the complainant’s evidence that the dining room table was inside at the time of this allegation in 2007. The prosecution has not proved this offence to the standard of beyond reasonable doubt.
Count 3
The complainant gave evidence that the accused had anal intercourse with her in the bus while she was bent over the railing. [194] When she walked into the bus, he was lying on the bed. He then got up, twisted her arm behind her and bent her over the bunk bed railing.
[194] MFI P1B, T68.
During cross‑examination at the second trial, the complainant was shown a photograph of the inside of the bus.[195] She gave evidence that the photograph showed the interior when it was closer to completion than it was at the time of the incident, however, the mattress was in there at the time and folded out because the accused was lying on it. She gave evidence that when the mattress was folded out, ‘there was plenty of room’ between the mattress and the bottom bunk for her to stand. She was standing on the floor at the time of the sexual assault, not on the mattress.[196]
[195] MFI P1E, T108.
[196] MFI P1E, T109.
The photograph does not show the mattress folded out to a bed. Nevertheless, it does not look as though there would be much standing room between the mattress when folded-out and the bunk beds. Accepting that the complainant had room to stand on the floor while facing the bunk beds at the time of the alleged offence, then it appears likely that the accused, standing behind her, must have been standing on the mattress. From that higher position, it is alleged that the tip of the accused’s penis penetrated the complainant’s bottom to the point that it was painful, ‘like burning’.[197] At the time of penetration, the complainant was bent over the bunk bed railing ‘a fair bit’[198] and the accused was restraining her by holding her twisted arm behind her back.
[197] MFI P1B, T70.
[198] MFIP1B, T70.
The prosecution did not lead evidence about the layout of the bus, including the height of the bunk bed railing, the space between the folded-out mattress and the bunks or the height of the mattress. There was no evidence about the whereabouts of the bus or the ability of the police to prepare a plan (to scale) of the bus at the time the matter was reported to the police.
The accused gave evidence that he is 6 foot tall and, at the relevant time, weighed an average of about 110 kg. The complainant would have come up to his chest area when she was in Year 5 or 6, growing up to his shoulder height when she was 15.[199]
[199] Exhibit P20, T314 – 315.
The prosecution has not dispelled doubt which arises from the potential physical difficulties of the alleged intercourse, particularly in light of the scenario left open on the evidence that the accused was standing in an elevated position on the mattress at the time.
The prosecution has not proved this offence to the standard of beyond reasonable doubt.
Count 10
The prosecution case is that the accused assaulted the complainant in the morning before school when she was waiting for the school bus to be opened by the driver. The accused slapped her because she was wearing a skirt to school, showing her legs.
The accused gave evidence that he never took the complainant to task about wearing a school uniform skirt to school rather than tracksuit pants. To the contrary, he used firm words when she put tracksuit pants on rather than her school uniform. There was never any incident at the bus stop.[200]
[200] Exhibit P20, T288.
On the complainant’s evidence, there was no-one waiting at the bus when the accused assaulted her. She explained that she left home earlier that day (7.20 am, 7.30 am) because the accused had been bickering at her at home. [201] The driver was usually at the bus at 7.40 am.
[201] MFI P1E, T127.
During cross‑examination at the second trial, the complainant was asked how many children caught the school bus in her street. She gave evidence that there were four or five of them at the time of this offence; it was not until the year after that her brother started catching the bus with her, when he was high school age.[202]
[202] MFI P1E, T129.

On the complainant’s evidence, however, count 10 occurred in 2010,[203] which was the year she moved out of home. Her brother was already high school age. She was in Year 9 in 2010. The defence tendered photographs of the complainant and her brother around the school bus.[204]
[203] She gave evidence that count 9 occurred between January and May/June in 2010 (MFI P1E T124). She moved out of home not too long after count 9. Count 10 happened after count 9. (MFI P1E, T146).
[204] Exhibits D14, D15.
The complainant’s explanation for the absence of her brother at the bus at the time of this alleged offence cannot be correct. There may be other explanations for his absence at the time, but there was no evidence about that. I am cautious about her evidence that there was no‑one else around at the bus at the time of this alleged offence. I am also cautious about the veracity of this allegation because of her allegations that the accused was violent toward her mother and brother. Those allegations have been denied by the accused, the complainant’s mother and the complainant’s brother (see [117]).
The prosecution has not proved this offence to the standard of beyond reasonable doubt.
Count 6
The complainant gave evidence that after the accused committed this offence, he broke her make-up kit, telling her that she was a slut just like her mother. Her mother came in and defended her. The accused then grabbed her mother by the throat and held her there. The complainant ran out of the room and went to her father’s girlfriend’s house.[205]
[205] MFI P1B, T92.
The accused gave evidence denying the offence, calling the complainant a slut and grabbing the complainant’s mother by the throat. The accused gave evidence about one occasion when the complainant was putting on a lot of make‑up before going to school in a Gothic, emo style.[206] He told her no. She kept doing it and said she was going to put it in her bag. He slammed the lid of her make‑up kit down and then threw it in the bin in the complainant’s bedroom. It broke when it was thrown into the bin.[207]
[206] Exhibit P20, T281.
[207] Exhibit P20, T281, 335.
The complainant’s mother did not support the complainant’s account. She gave evidence that the complainant was in her bedroom putting on excessive make‑up. She told the complainant not to because it was against school policy. The complainant continued to apply make‑up and argue. The accused came in, grabbed the make‑up kit and put it in the bin. He did not argue with her or grab her around the throat.[208]
[208] T128, 152.
The defence submitted that the complainant was attributing to the accused a phrase that her biological father used, namely, ‘you’re being a slut just like your mother’.[209] The complainant gave evidence that both the accused and her father said that to her.[210] The defence submitted that the accused never referred to the complainant’s mother as a slut or subjected her to violence.
[209] T214, referring to T192 – 192, T223 – 226.
[210] MFI P1B, T193.
The prosecution submitted that the complainant’s mother was partisan and should not be believed.
The complainant’s mother made it plain during her evidence that she did not believe the complainant, however, I do not consider that she was fabricating her evidence to assist the accused. Her evidence about this occasion did not exactly match the evidence of the accused. He gave evidence that he was the one who told the complainant to stop putting on the make‑up and that the complainant’s mother was backing him up.[211] The complainant’s mother’s evidence was that it was the other way around. More significantly, the complainant’s mother gave evidence that the accused was never violent toward her (see [117]).
[211] Exhibit P20, T282.
I am unable to reject the evidence of the accused and the complainant’s mother. The prosecution has not proved this offence beyond reasonable doubt.
Count 5
The complainant gave evidence that on the occasion of her Year 7 graduation, the accused sexually assaulted her on his bed but was interrupted when the complainant’s mother arrived home. The complainant was forced to hide under the accused’s bed.
The accused and the complainant’s mother gave evidence that there was no room for anyone to fit under the bed because a second mattress was kept under the bed.
The accused gave evidence that there was a spare mattress under the bed because when he and the complainant’s mother moved in together, neither wanted to get rid of their mattresses. One mattress was kept under the bed, and they swapped them over from time to time.[212] There was no room for anyone to hide under the bed.[213] Even though he has no specific memory of the time of the complainant’s Year 7 graduation, the mattress would always have been under the bed.[214]
[212] Exhibit P20, T329.
[213] Exhibit P20, T280.
[214] Exhibit P20, T330.
The complainant’s mother gave evidence that there was a queen size mattress under the bed at the time of the complainant’s Year 7 graduation.[215] She explained that the accused had a back problem and sometimes the mattress they were sleeping on was ‘way too soft’. They would pull out the harder mattress and he would sleep on it on the floor.[216]
[215] T134.
[216] T166-T167.
The complainant’s brother gave evidence that he did not often go into that bedroom and did not look under their bed.[217] In cross‑examination, he was asked whether there was anything ever stored under the bed. He replied that he remembered at some point seeing a white mattress under there, probably a queen size. He could see it from the doorway because his room was parallel to theirs.[218] He agreed that he gave evidence at the second trial that they kept suitcases under the bed. That made him remember the suitcases and explain that perhaps it was just different timings, mattresses and suitcase, ‘but it just so long ago’.[219]
[217] T92.
[218] T115.
[219] T116.
The prosecution was critical of the complainant’s brother’s evidence. It was submitted that it was given with one goal in mind, namely, to attempt to exonerate the accused by whatever means necessary. He chopped and changed his account. Also, his bedroom was not parallel to their bedroom.[220] It was submitted that whilst the complainant’s mother’s evidence was specific to the time of this offence, her knowledge of the details of the allegation should be borne in mind when considering the veracity of her evidence. It was submitted that her evidence about the mattress being pulled out did not accord with the accused’s evidence that they were swapped over. It also left open the possibility that the mattress was pulled out from under the bed at the time of this offence.
[220] T184 – 185.
Defence counsel did not make any specific submission about count 5.[221]
[221] T220.
Because of the passage of time, I do not consider the complainant’s brother’s evidence is reliable and he ultimately admitted as much.
The difference between the evidence of the accused and the evidence of the complainant’s mother about the mattresses could be attributable to either a poor effort to concoct or a genuine difference of memory, which mitigates against concoction.
The evidence in relation to this count and the doubt that I have not been able to dispel about the complainant’s evidence on counts 8, 2, 3, 10 and 6 and generally (see [117]) are such that I am not able to say where the truth lies in relation to this allegation.
Count 4
On the complainant’s evidence, the accused indecently assaulted her in the water when everyone was swimming on a camping trip at the Murray River with another family. She estimated she was 11 or 12 but was not sure.[222]
[222] MFI P1B, T75. That makes the date range 2006 to 2008.
There is no doubt that the other family was the M family.
The accused gave evidence about a camping trip to Mannum with the M family.[223] The complainant’s brother had a motorbike accident and grazed his knee and arm on the first day of the trip. The brother did not swim after that. The accused gave evidence that he looked after the brother, did not go swimming and neither did the other adults.[224] He denied the offending. He could only recall one trip with the M family.[225]
[223] Exhibit P20, T279.
[224] Exhibit P20, T279.
[225] Exhibit P20, T333.
The complainant’s mother gave evidence that all the children swam in the river except for her son because he injured himself falling off a motorbike;[226] she did not want him to get an infection from the dirty water. She did not swim because she cannot swim. She did not see any other adults swimming. She stood in the water with Mrs M and watched the children in the water.[227] The complainant was only a young girl in primary school. There was one trip.[228]
[226] T132.
[227] T155.
[228] T131.
The complainant’s brother gave evidence about an occasion he went on a camping trip to Mannum with the M family. He fell off a motorbike and had grazes. He remembered people in the water, but not who they were. He would have gone swimming if he had not been injured.[229]
[229] T88, 118.
Mrs M gave evidence about her family going on one or two camping trips with the complainant’s family over 15 years ago.[230] The kids would go in the water and ‘sometimes adults’.[231] She stayed with her son on the bank because he had cerebral palsy. Her husband and the accused went swimming with the children, but it was possible the accused did not go swimming.[232] The children were allowed to go in up to their waist.[233]
[230] T58.
[231] T59.
[232] T61, T66.
[233] T60.
I found Mrs M to be an honest witness doing her best to remember those events, but it was plain when she gave evidence that she had little memory of the specific camping trip/s. She gave evidence that she had ‘been on so many trips to Mannum with different people’.[234]
[234] T66.
On the evidence, there may have been only one camping trip involving just the two families and if so, it is likely that the complainant’s brother hurt himself falling off a motorbike on that trip.
Because it was such a long time ago, it is unrealistic to expect people to remember who may have gone swimming on that trip.
Nevertheless, I consider the complainant is wrong about her mother (who could not swim), brother (who was not allowed to swim because of his injury), Mrs M (who was with her son who had cerebral palsy) and one of Mrs M’s sons (who had cerebral palsy) being in the river.
Mrs M thought her five children were of primary school age.[235] Given the number and ages of the children who may have been swimming, it is likely that at least Mr M or Mrs M would have been around, either in the water (Mr M) or on the bank watching the children in the river (Mrs M).
[235] T60.
In any event, the complainant’s evidence is that there were other children and adults in the river at the time of this offence. [236] On her account, it was very brazen conduct on the part of the accused. She did not remember ‘who swam towards who’.[237] They were ‘next to each other but he had his arm around [her] under water’.[238] He was using the other hand to touch her. She was not able to stand up in the water, she was kicking her legs ‘but he was holding me above the water because I struggled to keep up’. He was able to touch the bottom of the river because ‘he’s very tall’. His hand came to be in between her legs from the front of her.[239] The accused touched her under the water ‘for a while’.[240]
[236] MFI P1B, T75, 77.
[237] MFI P1B, T76.
[238] MFI P1B, T77.
[239] MFI P1B, T78.
[240] MFI P1B, T76.
The prosecution submitted that the evidence of the defence witnesses about who did not swim at the camping trip is unlikely and reflects their willingness to say whatever helps the accused. As I have stated above, I consider it unrealistic for anyone to have an accurate memory about who swam on a trip so long ago. Even if I was to reject their evidence, it does not follow that the prosecution has proved this offence beyond reasonable doubt.
The brazen nature of the alleged offending (in full view of adults) combined with doubts raised about the complainant’s evidence on counts 8, 2, 3, 10, 6 and 5 and generally (see [117]) are such that I am unable to say where the truth lies in relation to this allegation.
Counts 1, 7 & 9
In relation to count 1, the complainant gave evidence that the accused was lying in bed with a purple sheet over him. He removed the purple sheet to expose his erect penis and then required her to perform fellatio.
The accused gave evidence that they only had fitted sheets, not flat sheets, and they never owned purple sheets.[241] The complainant’s mother confirmed that to be the case.[242]
[241] Exhibit P20, T274
[242] T138.
On its own, that evidence would not necessarily cause me to doubt the complainant’s evidence. However, I have now reached the stage in my consideration of the complainant’s credibility and reliability in the context of the evidence as a whole that I do not know where the truth lies. I am at a point where I am unable to rely upon the complainant’s evidence alone to be satisfied about the offence to the standard of beyond reasonable doubt. That does not mean that I do not believe her. It does mean that I am unable to believe her to the standard required in a criminal trial. That carries through to my separate considerations of counts 7 and 9.
Verdicts
My verdicts are as follows:
Count 1: Not guilty.
         Count 2: Not guilty.
         Count 3: Not guilty.
         Count 4: Not guilty.
         Count 5: Not guilty.
         Count 6: Not guilty.
         Count 7: Not guilty.
         Count 8: Not guilty.
         Count 9: Not guilty.
         Count 10: Not guilty.