R v Humphreys - [2022] SADC 146

District Court of South Australia
(Criminal)
R v HUMPHREYS
Criminal Trial by Judge Alone
[2022] SADC 146
Reasons for the Verdict of her Honour Judge Tracey
15 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
The accused is charged with aggravated indecent assault committed against LW who lived on the same street as the accused - accused elected for trial by judge alone.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 (SA) s 56(1), referred to.
Hill v The King [2022] SASCA 114 [61], considered.

R v HUMPHREYS
[2022] SADC 146

Ronald Humphreys (the accused) is charged with aggravated indecent assault pursuant to s 56(1) of the Criminal Law Consolidation Act, 1935. He pleaded not guilty to the charge and elected to be tried by judge alone. It is alleged that the accused committed the offence against LW, who was born on 3 July 2012. The charge is as follows:
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation, Act, 1935).
Particulars of Offence
Ronald Humphreys on the 9^th day of November 2020 at Christie Downs, indecently assaulted [LW] by touching her genital area with his hand.
It is further alleged that [LW] was under the age of 14 years at the time of the offence.
This is a ‘prescribed offence’ within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Prosecution case
At the time of the alleged offending, LW was eight years of age. The accused was a neighbour living on the same street as LW and her family.
On 9 November 2020 LW told her mother they had run out of cordial and that she would go to the accused’s house to get some. Her mother told her not to go.
LW knocked on the accused’s door and he told her to come inside. She asked him for cordial and the accused gave her a glass of cordial from the fridge. After drinking the cordial, she washed the cup and put it on the sink.
It is alleged that the accused asked LW what she was wearing under her clothing. He pulled down her shorts, put his hand inside her bathers and touched her vagina. The accused is alleged to also have lifted her shirt and touched her chest area. It is alleged that LW tried to remove his hand and repeatedly shouted ‘No’ when the accused was touching her. The accused told her not to tell anyone. When LW returned home she immediately told her mother what had happened. Her mother took LW to the Christies Beach Police Station the same day and reported the matter to police.
Police attended at the accused’s address and arrested him. The accused then participated in an interview.
Swabs were taken from LW’s vulva, anus and perineum. Police obtained a sample of the accused’s DNA and swabs were taken from the accused’s hands and fingernails. The prosecution argues that the DNA results are not inconsistent with the version of events alleged by LW and provide support for her account.
Defence case
There was no dispute that LW went to the accused’s house that afternoon. The accused denies he touched LW as alleged. The dispute concerns what occurred and whether I can be satisfied beyond reasonable doubt with respect to what is alleged to have taken place.
Witnesses
The following prosecution witnesses gave evidence:
·LW, the complainant;
·KW, LW’s mother and the complaint witness;
·Dr Duncan Taylor, forensic scientist at the Forensic Science Centre South Australia; and
·Brevet Sergeant Pamela Cook, the investigating officer.
Agreed facts
The following facts were agreed:[1]
[1]     Exhibit P13.
Birthdates
1.     Ronald Humphreys, the accused, was born on 25 June 1942.
2.     [LW], the complainant, was born on 3 July 2012.
Reporting of matter
3.At about 8:05pm on 9 November 2020, [KW] attended at the front desk of the Christies Beach Police Station, with the complainant, to report the matter.
4.At about 9:00pm on 9 November 2020, Detective Brevet Sergeant Nicola Toone conducted a recorded interview with the complainant. The recording of the interview was copied onto a USB (Exhibit P1).
Forensic Procedures
5.Later that night after the interview, the complainant underwent a forensic procedure at the Flinders Medical Centre. A Forensic Evidence Collection Kit (‘FECK’) was obtained from the complainant, containing:
a.a swab from her vulva and anus; and
b.a swab from her perineum.
6.The FECK from the complainant was labelled ‘VE1522’ and assigned the exhibit number 21/A72042-09.
7.At 10.15pm on 9 November 2020, Detective Brevet Sergeant Toone seized the complainant’s bather bottoms. Detective Brevet Sergeant Toone cannot recall if she seized the item from the complainant directly at the Christies Beach police station or if she seized the items at the Flinders Medical Centre from the doctor who conducted the forensic procedure on the complainant.
8.At about 11.52pm on 9 November 2020, police obtained a sample of the accused’s DNA, from a swab of his inner cheek (‘the buccal swab’). The buccal swab was assigned the exhibit number 21/A72042-06.
9.At about 1:20am on 10 November 2020, Rebekah Liebelt, a registered nurse, conducted a forensic procedure on the accused. Ms Liebelt obtained a FECK from the accused, including:
a.a swab from his left hand;
b.a swab from underneath his fingernails and his cuticles on his left hand;
c.a swab from his right hand; and
d.a swab from underneath his fingernails and his cuticles on his right hand.
10.Ms Liebelt was wearing a new pair of sterile gloves when she took the swabs. She placed the swabs into individual tubes and placed them inside an envelope. The FECK from the accused was labelled ‘SSE793’. It was assigned the exhibit number 21/A72042-05.
11.All of the swabs and the bather bottoms were stored in secure police storage until they were transferred to Forensic Science South Australia for analysis.
Elements of the offence
Aggravated indecent assault
The prosecution must prove beyond reasonable doubt that:
1. The accused intentionally assaulted LW.
2.The assault was accompanied by or occurred in circumstances of indecency: that is, the indecent circumstances must contain a sexual connotation and the application of force was unlawful.
3.LW was under the age of 14 years at the relevant time.
General directions
I direct myself as follows:
·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.
·The burden of proving the charge lies wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.
·At all times it is for the prosecution to satisfy me that LW is both an honest and reliable witness beyond reasonable doubt.
·The accused elected not to give evidence and remained silent. An accused person is not bound to give evidence and has the right to decline to give evidence. I must not draw any adverse inference against him or in the case that he puts forward from the fact that he exercised that legal right. There may be many reasons why an accused does not give evidence and I do not speculate on those reasons. The recurrent theme to bear in mind is that it is for the prosecution to prove every element of its case beyond reasonable doubt. An accused’s silence in court is not evidence against him and does not constitute an admission against him. It may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.
·I must assess each witness as to their truthfulness and reliability and determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’s evidence.
·Certain witnesses gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight that I give that evidence. LW gave evidence by way of an interview with police. I must treat this evidence the same way as any other kind of evidence and not allow the way in which it was presented to influence the weight that I give the evidence. That the evidence was given in this way says nothing about the accused. I draw no inference against him from the fact that the evidence was given in that way.
Evidence of LW
There was no objection to the admissibility of the recorded police interview with LW on 9 November 2020 and I allowed the evidence to be admitted in that form. I was satisfied of LW’s capacity to give sworn evidence at the time the recording was made.
A hearing pursuant to s 12AB of the Evidence Act was conducted on 30 June 2022 before another judge of this court. Some time later the court was informed that the investigating officer had been present in the witness suite with LW on 30 June but had not been visible on the recording. I ruled that the recording of that evidence was inadmissible.
Pursuant to s 13BA(5)(c) of the Evidence Act, I ruled that it was in the interests of justice to permit LW to be examined, cross-examined and re-examined in accordance with the applications outlined by counsel. After questioning LW, I was satisfied that she was capable of giving sworn evidence.
Interview with police on 9 November 2020[2]
[2] Exhibit P1; Exhibit MFI P2.
Detective Brevet Sergeant Nicola Toone (DBS Toone) interviewed LW on 9 November 2020. LW was 8 years of age at the time. LW said she had come to talk because something ‘really weird’[3] happened when she went to get some cordial from the friend who lives down the road and when she ‘was done he wanted to know if I was wearing like something and then he um he pulled my pants down and I felt uncomfortable so I pulled them up but he um put his hand in my pants and then he touched my thing’.[4]
[3] Exhibit MFI P2 T4.133.
[4] Ibid T4.142-153.
LW said that she had told her mother they had nothing to drink at home and that she could ask the accused because she knew he had cordial. Her mother had told her not to worry about it but that she went without listening to her.
LW said after she had the cordial the accused was looking to see if she was wearing ‘anything underneath’ and he pulled down her pants and put his hand in her pants. She said she was not feeling comfortable and was trying to lift his hand up. She left and told her mum ‘everything like what he said and stuff and he lifted my t-shirt up’.[5] On the video, LW was shown to cross her arms at that point. She said she pulled her t‑shirt down and left and told her mum what had happened. Her mother took her to police because she thought it was the safest thing to do. LW said the person’s name was ‘Ron’ and she knew him because her mother knew him and was his friend.[6]
[5] Ibid T5.185-186.
[6] Ibid T5.199-203.
LW said that she had gone to the front door of the accused’s house and knocked. The accused told her to come inside and she drank her cordial. When she had finished her cordial she had washed the cup and put it in the sink. She said she forgot what the accused said at first but she knew that he said ‘What are you wearing underneath?’.[7] She and her friends had been playing in the sprinkler, and she told him she was just wearing her bather things. The accused dropped his hand in and then she felt really uncomfortable. He put his hand down her pants. He put his hand in her bathers. He then touched her ‘thing’.[8] LW said she would normally call it ‘rude’.[9] She was trying to lift the accused’s hand up, but he would not, so she used both hands. Then the accused lifted up her t-shirt and then she ran and said ‘Bye’.[10] The accused had pulled up her t-shirt and he was trying to touch ‘this’ which, on the video, shows her demonstrating her chest. She said ‘but I covered them and I put his hand off and then I like put it down and then I left’.[11]
[7]     Ibid T6.282.
[8]     Ibid T7.328.
[9]     Ibid T8.338-340.
[10] Ibid T8.355.
[11] Ibid T8.370-371.
LW said the accused told her not to tell anyone but that ‘I had to do something because if I didn’t do anything well like he will probably come happen like more than twice or something so I had to do something, so I told my mum and she brang me here’.[12]
[12] Ibid T8.375-378.
Later in the interview LW was asked whether she could think of another word for her ‘rude’. LW said ‘rude part’.[13] When she was asked what she would call her chest area she said ‘B’ and that ‘I just call it that because I don’t like saying it, that is “Boo”’.[14] She said this all happened in the kitchen near the sink. She had shouted out ‘No no no no no’ and then she tried to pull his hand out and then she just left.[15] At the time the accused was looking at her ‘rude part’ she said ‘No’ and then he touched it and she did not like it, so she thought it best to tell mum.[16]
[13] Ibid T11.497-501.
[14] Ibid T11.514-518.
[15] Ibid T12.538-543.
[16] Ibid T12.551-553.
LW indicated that the accused touched her ‘rude part’ with his right hand.[17]
[17] Ibid T12.570.
Further examination
At trial on 31 October 2022, LW said that at the time of the incident with the accused she was living with her mother and two of her sisters. She recognised the accused’s house from a photo.[18]
[18] Exhibit P3.
At the time she was at the accused’s house she was wearing a pair of shorts and some bathers. Her bathers were rainbow coloured. She was wearing her friend’s bathers because it was a hot day and she and her friends were under the sprinkler. After they finished in the sprinkler, she kept the bathers on and was still wearing them when she went to the accused’s house, when she came home and when she went to the police station.[19]
[19] T 25.
She was in the accused’s kitchen when he pulled her shorts and bathers down to her thighs. At the time he touched her, the accused was sitting on his walker. She tried to pull her shorts up before he touched her ‘rude’.[20] She could not remember whether she said anything to the accused when she pulled her shorts up. When he touched her with his hand, she remembered saying ‘No’.[21] The accused did not say anything to her but closed his eyes while he was touching her ‘rude’.[22] She said she knew another word for ‘rude part’ but did not like saying it. She had made markings on a drawing showing where the ‘rude part’ was.[23] She had also circled around her chest where the accused had lifted up her t-shirt and tried to touch her. LW said that the accused used two hands from the bottom of her t-shirt to lift it above her ‘Boo’ area. He was still sitting on his walker. He did not say anything to her and she just pulled it back down. Other than touching her ‘rude part’ and trying to touch her ‘Boo’ area, he did not touch anywhere else. After she pulled down her t-shirt she left the accused’s house and went home. She said she told her mother everything that the accused did. She was in her mother’s bedroom sitting on her bed.[24] Her mother had been in the loungeroom, and her two sisters were there as well. She told her mother to come into her bedroom because she wanted to tell her first, before telling her sisters. She told her mother that the accused ‘touched my rude part’.[25] Those were the words she used. She could not remember what her mother said back to her. After that they went to speak to police.
[20] T 27.36-37.
[21] T 28.12.
[22] T 28.15.
[23] Exhibit P6.
[24] T 30.
[25] T 31.13.
In cross-examination, LW was asked whether there had been times when her mother had sent her over to the accused’s house to ask if he had any food or bread and butter and things like that. LW said that she was not too sure. She said there had been no times when her mother had asked her to see if the accused had any beer that he could give her mum. She was not ‘too sure’ whether earlier in the day she went over to the accused’s house with her mother, who asked if she could borrow $10 from the accused.[26] In response to a question as to whether she had been with her mother before at the accused’s house when her mother had asked for money, she said ‘I think’.[27]
[26] T 32.29.
[27] T 32.33.
She was not too sure whether, when she was in the sprinkler, she was wearing anything apart from the bathers. She said she thought she just had her bathers on. The bathers were top and bottom. Her mother had told her that she did not want her to go to the accused’s house but did not say anything else about why. She was not too sure whether there had been other times when she had been with her mum at the accused’s house where he had used rude words like ‘piss off’ and said that he did not want she and her mother to come around.[28]
[28] T 33.
When she went over to the accused’s place she still had her bather bottoms on. They were still wet from playing in the sprinkler. She had put shorts over the top of the bathers and had a t‑shirt on. She was shown a photo of the accused’s house and asked whether she had walked through the carport into the accused’s backyard when he was sitting in his backyard when she first saw him on that day. She said ‘That would be wrong’[29] and wrong to say that she spoke to the accused in his backyard and asked him for cordial when she and he were in the backyard. She said she had gone to the front door and went into the house through that door. LW said that the accused’s walker was in the kitchen. It would be wrong to say that he was standing up without his walker while she was drinking cordial. He was using his walker to put the jug of cordial back into the fridge. While she was drinking the cordial the accused sat down on the walker. She said she put her dish up on the drying rack and then he touched her.[30] She denied that her bathers and shorts had fallen down a little. It would be wrong to say that they had fallen and were getting close to her knees and wrong to say that the accused pulled her pants up rather than down. She said ‘No, he pulled them down’.[31] The accused did not tell her to tell her mother to get her some dry pants. Nor did he tell her to tell her mother to stop sending her over for beer or money.
[29] T 35.22.
[30] T 37.31-32.
[31] T 38.12.
LW said that it would be wrong to say that she and the accused were facing away from each other, and the accused grabbed the sides of her bathers and pulled them back up telling her to get some dry pants.[32] Furthermore, it would be wrong to say that the accused told her to ‘Nick off and don’t come back, tell your mother she’s a fat bitch and a mental case’.[33]
[32] T 39.
[33] T 40.8-12.
There was no re-examination.
Evidence of KW
KW is LW’s mother. At the time of the alleged offending her partner, LW’s father, was in custody. KW said that the accused’s residence was diagonally across the road from her home. She said that the accused and her partner became drinking buddies. She had been to the accused’s house probably half a dozen times. She would not really take her children with her. She said that if she ran out of coffee or sugar, or if she needed to borrow some money, she would go over to the accused’s house and ask him. If she borrowed money, she would always pay him back. It was just small amounts like $20. She thought she had borrowed money from the accused a few times. The accused had been to her house probably half a dozen times. He would ask her to call him a taxi because he never had a phone. He never came into the house.[34]
[34] T 43.

On 9 November 2020 she was at home with three of her children. She was folding up catalogues and then decided to go watch television in her room.
LW had been playing with her neighbours who lived a couple of doors down. LW was wearing shorts and a t-shirt that day. Later in the day LW asked her if they could get some cordial and asked if she could go to the accused’s house to get some. KW said she told her not to go there.[35] LW left the house and KW thought she was going back to her friends. KW continued watching television. LW came back about 15 minutes later and they had a conversation in her bedroom. She was walking out of her bedroom when LW told her to go back to her room and that she needed to tell her something. LW was crying and she was ‘going on’ talking about the accused and what had happened.[36] When asked what the exact words were that LW used, KW said:[37]
She said that Ron grabbed her, touched her, pulled - sorry, she said that Ron pulled her shorts down and her knickers and grabbed her … putchel.
[35] T 45.10.
[36] T 46.7-8.
[37] T 46.10-18.
KW said that the word ‘putchel’ is a word used in her family to mean the vagina.
LW said that the accused had told her to lift up her top and then said ‘You know where this is going to go’.[38] She asked a friend to drive them to the police station and she took LW straight there.
[38] T 46.21-22.
At some point police attended her house and seized the shorts and a top that LW was wearing that day.
In cross-examination, KW said that when LW spoke to her about what the accused had done, LW was wearing shorts and a t-shirt.[39] She was not wearing bathers. She said she probably had knickers on.
[39] T 47.35.
Police told LW to take the shorts and top off and put fresh clothes on to go to the police station. That did not involve fresh underpants. She could not say what LW was wearing under her shorts when she was changed. She said they were just knickers like girls wear. She was not aware that they were bathers and she was not aware they were frilly.[40]
[40] T 48.
KW agreed that she had been to the accused’s house a number of times asking to borrow $10 or $20. He had been her neighbour for four years. She did not think that she had asked him for bread, but agreed that she had asked him for sugar, milk ‘and stuff’.[41] She always had gone through the front door unless the accused was in the shed playing darts. Every time she wanted to speak to him she went to his front door, unless he was in the shed drinking and he would ask her to get him a beer and then she might go through the back door, from around the back.[42]
[41] T 49.19-20.
[42] T 50.
KW denied that on the day in question she had gone to the accused’s house at lunchtime to ask for $10. She denied that the accused told her to ‘piss off’ because he was sick of her asking for money.[43]
[43] T 50.19.
KW said that there had been a few times when the accused had yelled at her for coming around but that was mainly because he was in a bad mood ‘but every time I've always been out there when he's drinking and walked past he's always been nice and talked to me …’.[44] She said that she had always told her children not to go and annoy the accused because he was an elderly man and needed his space. She said that on other days the accused had told her to go and not come back, but that had not happened on this day.
[44] T 51.4-8.
KW agreed that she later got charged with arson on the accused’s property but that the charges were withdrawn and that the first mention she made of the conversation where LW told her about the accused lifting up the top and ‘you know where this is going to go’ was to police and prosecutors the week before trial.[45] She said that she did not know why she did not mention it when she was there previously. She thought she was just frustrated, confused and wanted to get LW the help that she wanted and needed.
[45] T 52.6-11.
KW agreed LW’s father had mentioned getting compensation from what happened at the accused’s house and had discussed it with her.[46]
[46] T 52.29.
In re-examination, KW said that she could not recall what knickers LW had on that day. She did not really pay attention to them.[47]
[47] T 52-53.
She said that when LW was in her bedroom, LW was wearing a t-shirt and shorts. She could not see what undergarment she was wearing. She could not remember what LW was wearing when they went to the police station. She had told LW to change, but not her knickers, because they had to put all the garments in the brown paper bag to give police when they came the next day.[48]
[48] T 53.30-32.
Evidence of Dr Duncan Alexander Taylor
Dr Taylor is a forensic scientist specialising in DNA analysis. He had undertaken the analysis of a number of items said to relate to the incident involving LW and the accused. He had prepared a report relevant to that analysis.[49] Defence counsel made it clear that there was no dispute about Dr Taylor’s expertise.
[49] Exhibit P8.
The bather bottoms worn by LW were examined and found to show no blood‑like staining present. Faecal staining was present.
A document titled ‘General examination form’[50] was explained by Dr Taylor to be a form used by evidence recovery when Forensic Science carry out examinations. It records the results of various tests upon an item and allows for photographs or notes to be made during the examination. The document contained photographs of the bather bottoms said to be worn by LW and marked ‘inner front’ and ‘outer front’. The picture titled ‘inner front’ was described that way because it would be the typical inner surface as would be expected when wearing the garment.[51] Dr Taylor said that in this case it was perhaps a little more obvious than most because there was a frill attached to the outer surface, that would delineate an inner surface as it is intended to be worn as opposed to an outer surface.
[50] Exhibit P9.
[51] T 70.
Dr Taylor explained that a tape lift from the inner crotch and front detected a mixed DNA profile.[52] There were three contributors including LW. The DNA profile was compared to the profile obtained from the accused’s reference sample showing that the probability of obtaining this DNA profile was 55 times higher if the contributors of the DNA were LW and two unknown people, compared to it being LW, the accused and one unknown person.[53] Dr Taylor explained that this result provides moderate support for the accused not being a contributor to that sample.
[52] T 71.6-8.
[53] T 71.
With respect to the tape lift from the outer crotch and front, there were three contributors to that profile which were compared to the reference profile from the accused. For that particular comparison, a statistical weighting was equally supported, meaning that the DNA profiling results were neutral with respect to whether or not the accused was a contributor of DNA to that sample. As such, the conclusion was that the accused could not be excluded; a statistic could not be provided and it was of limited evidentiary value.[54]
[54] T 73.17-19.
With respect to the samples taken from the accused’s hands and fingernails, a DNA profile was obtained from each swab and compared to LW’s reference profile. With respect to the accused’s left hand, a likelihood ratio was calculated to be 93,000 in favour of LW’s inclusion to that sample. It was considered to be very strong support for her inclusion.[55]
[55] T 74.33-23.
With respect to the accused’s right hand, a likelihood ratio was obtained of 96 million in favour of LW’s inclusion to that sample which is considered extremely strong support for her inclusion.[56]
[56] T 74.30-31.
With respect to the accused’s left hand fingernails, a likelihood ratio of 38,000 was obtained in favour of LW’s exclusion from the mixture. This is very strong support for her exclusion.[57]
[57] T 74.37-38.
With respect to swabs from the right hand fingernails, the likelihood ratio was calculated as greater than 100 billion in favour of LW’s inclusion to the mixture corresponding to extremely strong support for her inclusion.
In relation to a perineum swab from LW used as a reference sample, low levels of male DNA were detected on the vulva/anus swab. It was concluded that the result was ‘insufficient information for interpretation’.[58] This meant that the particular profile was so weak and incomplete that Dr Taylor was unable to carry out an interpretation. Touching of the area by a male could, Dr Taylor said, account for the presence of male DNA, but no conclusions could be made as to the type of cells from which the DNA originated.[59]
[58] T 75.34-35.
[59] T 76.
In cross-examination, Dr Taylor agreed that male DNA could mean either a child or an adult male person. A date for the deposit of the DNA could not be determined, nor whether it was a direct or indirect transfer. Dr Taylor said the presence in favour of LW’s DNA with respect to the hand swabs may have resulted from either primary, secondary or tertiary transfer.[60]
[60] T 76.28-37.
Working on a hypothesis where LW had come into the accused’s house, been in his kitchen with the accused pouring and giving LW a glass of cordial which she had then handled, was a possible explanation for DNA on the accused’s hands. Had the accused pulled LW’s underpants and shorts up, that would be an explanation for the DNA of LW to be on his hands.[61]
[61] T 77.7-17.
In re-examination, Dr Taylor agreed that if the glass had been washed prior to it being touched by the accused, that might have an effect on whether the accused was able to transfer LW’s DNA to his hand, given that there would be less available DNA to transfer to anything else that touched the cup.[62]
[62] T 77.26-29.
Evidence of Brevet Sergeant Pamela Cook
In November 2020 Brevet Sergeant Cook was stationed at Christies Beach Child and Family Investigation. On the afternoon shift of 9 November 2020 she became aware of a report concerning LW.
LW was wearing a long-sleeved top or jumper and long jeans. She observed her colleague DBS Toone interviewing LW in a prescribed interview.[63] The interview commenced at 9.00pm and concluded at 9.26pm. Later in the evening she and another colleague attended the accused’s address and arrested him.[64] The accused had answered the door and was walking with the use of a walker. Her conversation with the accused was recorded.[65]
[63] T 79.
[64] T 80.3-7.
[65] A screenshot showing the accused in his kitchen on 9 November 2020 was Exhibit P10.
The accused was interviewed at the Christies Beach police station.[66]
[66] Exhibit P11. MFI P12 is a transcript of the record of interview.
Brevet Sergeant Cook said that when she went to LW’s house she seized the clothes that LW was wearing on the day, which she said were a pyjama top and bottom.[67] LW was still wearing the bather bottoms when she was interviewed and only changed her outer clothing, so they were seized by the doctor during the forensic medical and handed to DBS Toone.[68]
[67] T 84.21-24.
[68] T 85.4-7.
There was no cross-examination.
Interview of the accused on 9 November 2021
While the accused did not give or call evidence, he participated in an interview with police on the evening of his arrest, the recording of which was tendered on the prosecution case.
In the interview the accused said he did not know LW by name.[69] Brevet Sergeant Cook informed him that LW had alleged that she had come to his house that evening at around 7.00pm for a cup of cordial and during that visit he had touched her indecently, on her vagina and breast area. The accused said he could not tell police anything about that because it was all ‘bullshit’.[70] He said:
There’s nothing in it, ya know I don’t know what the kid’s got in her head, but they they’re goin’ all the time over here, with their family and their lives. Maybe I stick my nose in there sometimes and I seem to get it bitten off. The family you know, they don’t want other people interfering in their life you know. So that’s all I’ve got to say, I’m sorry.’[71]
[69] Exhibit MFI P12 T 21.982.
[70] Ibid T 22.1057.
[71] Ibid T 22.1062 – 23.1066.
Later he said:
…actually yeah, the more I stick my nose in here, the more I get myself involved in something. Um, I didn’t know what to say, but I it’s it’s all crap and uh. I mean the kids, the kids are all good people you know and the mother is a good person you know. And, you know, the old man’s getting out from prison in December. I just want to see the whole family put together again, and doin’ good. I’m not one to interfere with her life.[72]
[72] Ibid T 23.1110 – 24.1116.
Prosecution address
The prosecution submitted that given the level of detail in LW’s interview, and in court, I can readily conclude that the accused touched LW on the genitals as she alleged.[73]
[73] T 89.9-13.
There was opportunity for the offending to have taken place and LW made an immediate complaint to her mother and then a report to police.[74]
[74] T 89.18-20.
The prosecution submitted that while ultimately the accused could be convicted on LW’s evidence alone, the other evidence led during the trial provided support for her account.[75] The evidence from Dr Taylor concerning the DNA testing conducted on the accused’s hands and fingernails were, prosecution submitted, consistent with the complainant’s account.[76]
[75] T 89.27-31.
[76] T 89.21-26.
LW answered DBS Toone’s question as to why she had come to talk, very clearly. LW went on without further prompting to describe the accused putting his hand into her pants and touching her genital area when he was in his kitchen after she had drunk a glass of cordial. Over the course of the remaining interview, LW gave necessary details in language appropriate for an eight-year-old child.[77] LW was able to provide a complete account of the relevant incident and importantly, her account which was given repeatedly throughout the course of the interview, and her evidence in court and in cross-examination, remained consistent.
[77] T 90.33-37.
The accused’s question about what she was wearing underneath is the type of question, the prosecution submitted, that one might ask a child as a prelude to sexual offending in that it introduced to an otherwise innocent interaction a sexual connotation without necessarily causing alarm in a child.[78] Importantly, in the prosecution’s submission, on LW’s account you might think that this comment was made at a natural juncture in their interaction, after he has invited her into his home, provided her with something she has asked for, and when he is alone with her in the kitchen and presented with the opportunity to offend against her.[79] This aspect of LW’s account has a particular ring of truth to it. It was after this question that the accused pulled her pants down. LW described the accused looking at her ‘rude part’ and told the interviewer that she did not like that. She was emphatic about that and that aspect of her interview was particularly compelling.
[78] T 92.17-22.
[79] T 92.23-29.
At various points throughout the interview LW acted out what happened in the kitchen. She demonstrated how she tried to protect her chest area and how she moved the accused’s hand off her body and pulled her t-shirt back down before leaving the house.[80]
[80] T 92-93.
LW firmly corrected defence counsel when she did not agree with the propositions that were being put to her and responded in a matter-of-fact way.[81] While LW was not particularly comfortable discussing her ‘rude’ or her ‘Boo’ areas, given the markings she made on the picture of the naked girl in Exhibit P6, it is open to find that in the interview she was describing the accused grabbing or touching her genitals and attempting to touch her breast area.[82]
[81] T 95-96.
[82] T 97.13-17.
The prosecutor acknowledged that KW’s evidence differed from LW’s. I was urged in light of the matters which unify their evidence on this topic to find that it really did not matter.[83] From both accounts there was a complaint made immediately after the incident in terms which rendered it clearly referrable to the incident and the complaint occurred in KW’s bedroom as they sat on the bed together.[84]
[83] T 98.13-16.
[84] T 98.17-22.
The additional details of the conversation provided by KW did little to undermine a finding that the conversation occurred. It was suggested that I might conclude that KW would more clearly remember what had been said, but that what was important is that the acts described during that conversation are largely consistent with what LW described in the interview and what she confirmed again in court. The difference between the accused asking her to lift up her top and him lifting up her top is a minor matter which should not cause concern.[85]
[85] T 99.
The complaint was made in entirely expected and appropriate circumstances and occurred at the first available opportunity.[86]
[86] T 99.15-18.
In the prosecutor’s submission, the denials by the accused in his police interview and his assertions that LW made up the allegations, and that the allegation was all ‘bullshit’ were plainly self-serving and should be cast aside.[87]
[87] T 102.2-6.
In the prosecutor’s submission, little can be gleaned from the DNA evidence in relation to the bather bottoms, especially given the uncertainty as to how they were worn after the incident, during the incident and before they were seized.[88] The samples obtained from the accused’s hands and fingernails are the most probative results. In light of the complainant’s account that the accused used both his hands to lift up her top, the result perhaps is unsurprising.[89]
[88] T 104.1-5.
[89] T 104.29-32.
The prosecutor submitted that the DNA from under the accused’s right hand fingernails and cuticles is particularly important. The DNA results, particularly on the right hand, are consistent with her account of what happened in the kitchen with the accused.[90]
[90] T 105.
Finally, the prosecution submitted that the principal evidence is the account of LW as to what happened. Her account was detailed, compelling and complete.[91] It was consistent, there was opportunity, there was her immediate complaint and the presence of her DNA on the accused’s hand and right fingernails provides support for her account.
[91] T 105.35-37.
Defence submissions
Defence counsel described the evidence and submissions made in relation to the DNA on the bather bottoms as very speculative and dangerous with respect to being able to be satisfied beyond any sort of reasonable doubt.[92] The presence of male DNA is not a factor that supports the prosecution case in any respect. It is not in dispute that there has been some social interaction in the kitchen. There is no evidentiary basis for the suggestion that DNA on a fingernail swab is somehow inconsistent with the ultimate hypothesis of an innocent explanation of simple social interaction.[93]
[92] T 106.32-34.
[93] T 107.25-28.
KW had conceded that she had previously gone to the accused’s house to either borrow money or bread or things of that nature. She accepted that on previous occasions the accused had told her in effect to ‘piss off’ and that he was sick of her coming around. That is consistent with his record of interview where he said he was ‘sick of this and the kids being sent over’.[94] That KW was charged with arson, although withdrawn, and her partner’s interest in victims of crime compensation were troubling. It may be, it was submitted, that I think that something awkward might have happened in the accused’s house, not amounting to the charged offence.[95] That is, could I be satisfied as to the requisite intent if it may just have been an awkward social interaction as distinct from the charged offence.
[94] T 108.17.
[95] T 108.31-33.
Defence counsel described as the ‘big sticking point’ the glaring inconsistency with respect to LW’s account and that by KW.[96] It was, he argued, insufficient for the prosecution to say that her mother must remember it better and such a submission was problematic as to my assessment of the reliability and credibility of LW and concern about what actually transpired against the background of what was happening both within the family and happening with their neighbour.[97]
[96] T 109.6-8.
[97] T 110.

Defence counsel described the accused’s record of interview as fairly stark and basic but what more was there to say in that situation beyond ‘this is bullshit’?[98] The accused gave some context consistent with KW’s evidence and that there was perhaps good reason for being sick of being troubled by this family.
[98] T 110.7-9.
In interview, LW said ‘No no no no no’ repeatedly contrasting with her evidence in court which was in terms of a simple ‘No’.[99]
[99] T 110.26-29.
Defence counsel submitted that combining the moderate support for the exclusion of the accused’s DNA; the outer crotch being otherwise entirely neutral in its evidentiary value; the concessions made which may be consistent in terms of the hands and the fingernail DNA with innocent social interaction; consideration of the family and neighbour dynamics; the inconsistency between some of what appears in the record of interview; what appears in LW’s evidence in court; and the stark distinction with respect to the mother’s evidence, there is a reasonable doubt arising that does not amount to proof beyond reasonable doubt.[100]
[100] T 111.
Finally, defence counsel submitted that it may be that I would reach a point where it may have otherwise been an awkward encounter which made LW feel uncomfortable and which did not amount to proof beyond reasonable doubt in terms of the elements actually required with respect to the offence which includes the issue of intent.[101]
[101] T 111.
Analysis
While the prosecution has urged me to find that there is some support for LW’s account from the DNA evidence, given Dr Taylor’s evidence, all that can be said is that the DNA evidence is not inconsistent with either LW’s evidence or the case put forward by the accused and therefore provides no assistance in determining whether the prosecution have proved the elements of the offence beyond a reasonable doubt.
With respect to the exclusionary result from the tape lift of the bather bottoms labelled ‘inner crotch and front’, I accept that the evidence is unclear as to how LW wore the bathers. There is faecal staining on what has been labelled as the outer crotch and front, which suggests the bathers had been worn inside out in which case, the exclusionary result on the inside of the garment would be unremarkable. As was submitted by the prosecutor, LW did not describe the accused touching the outer surface of her bathers at any point, but rather, that the accused used his hand to go underneath her bathers. Had the bathers been worn as intended, the exclusion of the accused does not undermine LW’s account such as to cause me to doubt her allegations.
LW was an impressive witness who gave a detailed and generally consistent account of what had occurred at the accused’s house. There was no suggestion that she was not answering questions truthfully and to the best of her ability.
My impression was that she was recounting events that she had experienced and her description of how the accused’s behaviour had made her feel and her physical demonstrations were compelling. Her answers in cross-examination were not evasive and she spoke with conviction when she denied the version of events defence counsel put to her. She also demonstrated that she was not willing to give evidence about matters of which she was uncertain.
While I remind myself that LW’s complaint to her mother must not be used for the truth of the allegations LW made, her complaint was made at a time and to the person I would expect. I am concerned that KW’s additional recent recollection of what her daughter told her the accused had said was of recent invention, aimed at bolstering LW’s account. While I have not found it more likely for KW to have a better recollection of the conversation than her daughter, in my assessment, the additional details provided by KW, where they did not accord with LW’s evidence, nor the withdrawn arson charge against KW, undermine the evidence that a conversation between LW and her mother occurred on LW’s return from the accused’s house and concerned the accused having touched LW as she has alleged. Despite my concerns regarding her most recent version of the conversation with her daughter, overall I have assessed KW to be a credible and reliable witness, who did not shy away from there having been times when she borrowed money from the accused or to agreeing that the accused had been angry with her on occasion. Her evidence that her partner had spoken about the potential of compensation demonstrated honesty on her part. Such discussions do not necessarily mean that a complainant is not telling the truth and there was no hint of such a motive to lie on LW’s part. While the absence of any evidence that LW had no reason to lie does not mean she is therefore telling the truth, I have assessed LW’s evidence as both credible and reliable.
LW’s uncertainty about the previous interactions between her mother and the accused did not in my view arise from any attempt by LW to mislead. Rather, those matters appeared genuinely to have played no part in her experience of that day or her recall of those events.
I have carefully assessed the other apparent inconsistencies between LW’s evidence in the police interview and in court. The inconsistencies identified by defence concerned:
·Differences in LW’s evidence regarding both she and the accused having said ‘Bye’ to each other after the accused lifted her t-shirt, as opposed to her later evidence that nothing was said at the time.
·LW’s evidence in her recorded interview that she had told the accused ‘No’ multiple times as opposed to a single ‘No’ in her evidence in court.
The inconsistencies were few and were not of such significance to affect my regard for LW as a reliable witness.
During his interview with police, the accused at first appeared not to recognise LW as his neighbour by name, then proceeded to deny the allegations and to describe the ‘kids’ and their mother as ‘good people’, going on to say that that ‘they’re not very good’. When specific details of the events alleged by LW were put to the accused, he said that he could not tell police anything about it because it was ‘all bullshit’. While the accused denied he indecently touched LW, his resort to criticisms of LW’s family, without addressing the allegations police had put to him, detracted from his credibility. The accused did not have to answer police questions and I have assessed his interview bearing in mind that his answers are not sworn evidence that has been tested by cross-examination. I remind myself that by participating in the interview, the accused takes on no onus of proof, however, as was made clear in Hill v The King,[102] the ultimate issue is not whether the accused’s evidence is to be accepted or preferred to the prosecution witnesses’ evidence, but rather whether notwithstanding the accused’s evidence, the prosecution has proved its case beyond reasonable doubt.
[102] [2022] SASCA 114 [61].
I have carefully scrutinised LW’s evidence, together with the other evidence including the interview the accused gave to police, his denials, and the submissions of counsel. LW was in my view a credible and reliable witness, and I am satisfied that she was telling the truth about the events of that day. I reject the accused’s denials.
Having found that LW was truthful as to the way the accused pulled down her pants and lifted up her top, I reject as a reasonable possibility that in doing so, the accused had acted without the requisite intent. I reject as a reasonable possibility that the accused pulled up LW’s pants or that it is a reasonable possibility that there was an ‘awkward’ encounter which made LW feel uncomfortable and about which she is mistaken.
I am satisfied that the prosecution has proven all the elements of the offence beyond reasonable doubt, and I find the accused guilty.