R v Kelly

[2023] SADC 34

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v KELLY

Criminal Trial by Judge Alone

[2023] SADC 34

Reasons for the Verdict of her Honour Judge Fuller 

6 April 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

Accused charged with one count of maintaining an unlawful sexual relationship with his stepdaughter when she was between 9 and 12 years of age - alleged offending occurred when complainant visited accused at his mother's home after he moved out of her family home - complainant's mother found text messages from accused on complainant's mobile telephone and made a report to police - complainant interviewed and denied contact offending other than one occasion of touching of her chest in the bath - complainant subsequently made disclosure of other sexual acts - text messages from accused admitted into evidence as implied admission of some form of sexual interaction between accused and complainant but not as admissions of the charged unlawful sexual acts - complainant's evidence devoid of context and detail surrounding charged and uncharged unlawful sexual acts - complainant's memory very poor - proved prior inconsistent statements on material matters - complainant did not come up to proof on allegation that accused masturbated in her presence - inherent unlikelihood of account of alleged act of cunnilingus. Cumulative effect of deficiencies in complainant's account gives rise to reasonable doubt which the admission in text messages could not overcome.

Verdict: Not guilty

Criminal Law Consolidation Act 1935 (SA) s 50, 50(1); Child Safety (Prohibited Persons) Act 2016 (SA) s 38; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 13(7), 34M; Summary Offences Act 1953 (SA) s 74EB, referred to.
R v Mann (2020) 135 SASR 457; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; Michael v Hksar [2004] HKFCA 62; AM v State of Western Australia [2008] WASCA 196; R v MBV (2013) A Crim R 49; R v M, AS (2013) 118 SASR 160; R v Corrigan (1998) 74 SASR 454, considered.

R v KELLY
[2023] SADC 34

The charge

1. The accused, Jon Thomas Kelly, is charged on Information with the following offence:

   Statement of Offence

   Maintaining an Unlawful Sexual Relationship With a Child. (Section 50 (1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Jon Thomas Kelly between the 17^th day of August 2015 and the 17^th day of April 2018, at Gilles Plains, maintained an unlawful sexual relationship with [SD], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [SD], namely:

   (a)    Masturbating in her presence;

   (b)    Causing her to masturbate his penis;

   (c)    Rubbing her breasts on more than one occasion;

   (d)    Attempting to insert his penis into her anus;

   (e)    Performing an act of cunnilingus on her;

   (f)     Kissing her on the mouth on more than one occasion; and

   (g)    Inserting his tongue into her mouth on more than one occasion.

   This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

   The plea

2. The accused pleaded not guilty before me on 31 January 2023 and at his election I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.

   Elements of the offence.

3. To prove the charge of maintaining an unlawful sexual relationship with a child, the prosecution must prove beyond reasonable doubt that:

   ·The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts.

   ·Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant.

   ·At the time the accused committed two or more unlawful sexual acts, he was an adult.

   ·At the time the accused committed two or more unlawful sexual acts, the complainant was a child.

4. An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with a child over any period.

5. An unlawful sexual act is any act that constitutes or would constitute, (if particulars of the time and place at which the act took place were sufficiently particularised) a sexual offence.

6. In this case, the unlawful sexual acts alleged are as follows:

   ·Indecent assault (particulars (c), (f) and (g)).

   ·Act of gross indecency (particulars (a) and (b)).

   ·Unlawful sexual intercourse (particular (e))

   ·Attempted unlawful sexual intercourse (particular (d)).

7. As the trier of fact, I am not required to be satisfied of the particulars of any unlawful sexual act of which I would have to be satisfied if the act were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts.

   Indecent assault

8. An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. It was not disputed that if I were to find proved any of the acts particularised in (c) and (g) of the charge, I would find proved that the particular act was committed in circumstances of indecency. However, if I were to find proved any of the acts particularised in (f) of the charge, it was disputed that such conduct amounted to an assault and even if was, it was disputed that it was accompanied by or committed in circumstances of indecency.

   Unlawful sexual intercourse

9. It is an offence to have sexual intercourse with a person who is under the age of 17.

10. Sexual intercourse includes an act of cunnilingus and fellatio. It is also defined as the penetration of a person’s vagina or labia majora by the penis. If no penetration occurs but there is an attempt at penetration that is the offence of attempted unlawful sexual intercourse.

    Attempted unlawful sexual intercourse

11. It is a crime to attempt to commit a criminal offence. A criminal attempt is committed if it is proven that the accused had, at all material times, the guilty intent to commit a specified crime and it is proven that at the same time he did an act or acts which are seen to be sufficiently proximate to the commission of the specified crime and not seen to be merely preparatory to it.

12. Accordingly, to be guilty of attempted unlawful sexual intercourse the prosecution must prove that the accused intended to have sexual intercourse with a person under the age of 17 and did an act that was sufficiently proximate to the act of sexual intercourse and not merely preparatory to it.

    Act of gross indecency

13. It is an offence to commit an act of gross indecency towards or in the presence of a person under the age of 16.

14. To prove the charge of gross indecency, the prosecution must prove beyond reasonable doubt that the accused committed an act with, towards, or in the presence of the complainant in circumstances which make it grossly indecent.  It must be proved that the complainant was under 16 years of age at the relevant time. It must be something more than minor or trivial indecency. The conduct must be such as to be characterised not only as indecent, but as grossly indecent.

15. It must be proved that the accused performed an act (in this case causing the complainant to masturbate his penis and masturbating in her presence) and that he performed the act intentionally with, towards or in the presence of the complainant.

16. It must be proved that causing a child to touch an adult’s penis and masturbating in a child’s presence in the circumstances is not only indecent, but grossly indecent.

17. Indecency carries with it a sexual connotation. ‘Indecency’ means some form of sexual conduct which is indecent having regard to the complainant’s age, the accused’s age, the circumstances of the alleged conduct and the contemporary standards of morality and decency of right-thinking members of the community. It must be proved that the proved act was not only an indecent act but was a grossly indecent act. In this context, the word gross means something that is more than minor. It must be grossly indecent by reasonable, contemporary standards. 

18. I cannot return a verdict of guilty unless I am satisfied beyond reasonable doubt that two unlawful sexual acts occurred in the context of the ongoing relationship between the accused and the complainant. 

19. The category of relationships falling within s 50 of the Criminal Law Consolidation Act 1935 can never be closed because relationships vary widely, and the very concept evolves over time with societal changes.[1] The wide range of social and interpersonal relationships falling within the term include:

    ·Familial, legal and de-facto relationships;

    ·Residential relationships;

    ·Working relationships;

    ·Sporting and recreational relationships; and

    ·Professional relationships.

    [1]     R v Mann (2020) 135 SASR 457 at [26].

    Issue in dispute

20. The issues in dispute were whether the unlawful sexual acts in particulars (a) – (e) and (g) occurred and whether the kissing the subject of particular (f) was an indecent assault. It was not disputed that the accused was an adult and the complainant a child. Nor was it disputed that at the material time the accused was in an ongoing relationship with the complainant.

    General directions

21. The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[2] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.

    [2]     R v G [2015] SASC 186.

22. The general directions were summarised by Lovell J in R v G. They are as follows:

    As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

    The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.

    The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.

    The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.

    I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.

    If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.

23. The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[3]

    [3]     Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].

    Overview of the prosecution case

24. The accused and KM started a relationship in mid-2006. KM’s daughter, SD (the complainant) was one year old at the time. On 28 April 2009, their son, JK, was born.

25. The family was living at Parafield Gardens from August 2009. SD was 9 years of age and the complainant 30. The relationship between the accused and KM ended in August 2015. SD was 9 years of age and the accused 30. The accused moved in with his mother at her home in Gilles Plains. SD and JK maintained a relationship with the accused and would communicate via text messages. JK would spend almost every second weekend with the accused and on most of those weekends, SD would also stay the night.

26. On the prosecution case, the accused started to sexually abuse SD on the occasions she stayed over at the Gilles Plains address. The abuse commenced with the accused kissing SD on her mouth, and then on occasions inserting his tongue into her mouth. This happened on numerous occasions.

27. On more than one occasion, the accused rubbed SD’s breasts while she was in the bath. There was a single occasion when SD was in the accused’s bedroom and he told her to give him a ‘hand job’. He took his penis out of his pants and masturbated himself. He then caused SD to masturbate him until he ejaculated.

28. There was also a single occasion upon which the accused performed an act of cunnilingus on SD in the bedroom which she shared with JK.

29. On a further occasion when SD was in the accused’s bedroom, he told her to lie on his bed and pulled down her pants and underwear. He attempted to insert his penis into her anus but was unsuccessful.

30. The sexual abuse stopped around September 2017 when SD stopped visiting the accused at the Gilles Plains address.

31. In addition to the charged offending, SD also alleged that there were other sexual acts (uncharged) that occurred. Prior to the accused moving to Gilles Plains, he kissed her on the lips on a number of occasions. Whilst in the bath at the Gilles Plains home, the accused took a photograph of her while she was naked. He also told her regularly that he wanted her to lose her virginity to him.

32. KM discovered messages between SD and the accused on SD’s mobile telephone in April 2018. She confronted SD about the messages, but she denied there had been any sexual activity.

33. KM made a report to police on 17 April 2018. SD was interviewed by a prescribed interviewer on 30 June 2018. SD did not disclose any sexual offending other than describing an occasion when the accused squeezed her breast while she was in the bath.

34. Later SD disclosed that the accused had performed an act of cunnilingus on her. As a result, SD spoke to Senior Constable Emma Radinovic on 30 November 2020 and made a further disclosure of sexual abuse.

35. The accused was arrested on 27 February 2021.

    The evidence

36. I turn now to examine the evidence in more detail.

37. The following exhibits were tendered in evidence during the prosecution case:

    Exhibit P1: Five pages of text messages.

    Exhibit P2: Three pages of Instagram messages.

    Exhibit P3: Eight pages of text messages.

    Exhibit P3A: Three pages of  the text messages in Exhibit P3.

    Exhibit D4: Plan of house at Gilles Plains.

    Exhibit P6: Disc of interview – footage of interview with JK.

    Exhibit P7: Statement of agreed facts.

38. Prior to the trial commencing, defence counsel objected to the tender of exhibits P2 and P3. Following argument, I refused the application, with the exception of the first page of what later became P3. I granted the application with respect to the messages on that first page because they were of negligible probative value. The only relevant aspect of the messages on the first page was a message from the accused in April 2018 to the complainant, ‘Hair looks hot like that’. I was not satisfied that a sexual attraction by the accused towards the complainant could be inferred from this isolated comment, coming as it did following a series of messages between the accused and the complainant about her dyeing her hair and what colours would look ‘hot’.

39. The messages contained in P2 were as follows:

    Accused: I had a terrible dream last night, you had changed so much and left my life [crying emoji]. just wish we were back to normal

    SD: Sorry [love heart]

    Accused: Do you think we’ll get there

    SD: [love heart]

    Accused: Should I take that as a no

    SD: Sorry I was on musically

    I don’t want to be like that again Jon

    Not the sexual stuff

    Accused: I mean close friends, I know that and I’m sorry

    SD: It’s ok and I wanna be friends again too

    Accused: For real? I don’t want it to go back that way either, we were so stupid.

    SD: Ik

    Accused: Keep in touch, stop being a stranger or we’re going to keep drifting apart and that scares me, I’ve known you your whole life and we have so many awesome memories, keep being my amazing dorky best friend

    SD: [love heart.]

40. I permitted the tender of the messages in P2 because the responses of the accused to the complainant, although falling short of an unequivocal admission that the accused had committed the crime charged, were an implied admission of some form of past sexual interaction [‘sexual stuff’] with the complainant. It was an item of evidence capable of supporting the complainant’s testimony that there was some form of sexual relationship or activity between her and the accused.[4]

    [4]     Michael v Hksar [2004] HKFCA 62 at [63].

41. It is not a necessary condition of admissibility that an admission by an accused be unequivocal. Provided it is an admission that is adverse to the accused’s case, and it is not elevated into a full confession, the reception of such evidence will not prejudice a fair trial, particularly in a trial by Judge alone.[5]

    [5]     AM v State of Western Australia [2008] WASCA 196 at [14] per Steytler P. See also Miller JA at [107]

42. Had the accused known nothing of the ‘sexual stuff’ to which the complainant referred, he would be expected to have expressed surprise, disbelief, shock or even horror.[6] However, the accused’s implied acknowledgment of ‘sexual stuff’ between him and the complainant cannot be elevated to the status of an admission with respect to any of the charged or uncharged acts.

    [6]     R v MBV (2013) A Crim R 49 at [20] per McMurdo P.

43. The responses of the accused in P2 on their own do not constitute evidence that he committed two or more of the particularised unlawful sexual acts with the complainant whilst he was in a relationship with her.

44. I also permitted the tender of the messages in P3, although the probative force of this evidence was not as strong as the accused’s responses in P2. In the messages in P3 the accused wrote the following things to the complainant:

    It’s ok, just getting used to you not liking me kissing you and stuff, have to give you space, just my heads still stinging from the slaps. I’m trying dude…

    Sorry for trying to kiss your arm…I just miss you. Night [expressionless face emoji]

    You hate everything I do. It’s fine

    Well you obviously find me gross, can’t blame me for feeling sad about that, I just love you to death. Will keep my hands to myself.

    I is of dee sorry, I is learning to be a different hooman than before, sometimes forget we’ve changed.

1. This evidence has probative value as an acknowledgement by the accused that there had been a change in his relationship with the complainant involving a cessation of physical affection towards her, including kissing.

   The complainant – SD

2. SD gave her evidence remotely and in the presence of a court companion employed by the Victim Support Service. The court was closed during her evidence, and it was recorded by audio-visual means. I made those orders at the outset of the trial. Pursuant to s 13 (7) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to SD’s evidence.

3. SD was born on 11 December 2005. Her father is JD and her mother KM. She has one brother, JK. Her parents separated before she started school. She saw her father from time to time but stopped seeing him when she was in year 8 at school. At the time she gave evidence, SD was living with her mother and brother.[7]

   [7]     T 87-88.

4. SD first met the accused when she was a baby. By the time her brother was born, on 28 April 2009, she knew the accused and he was living with her family. By this stage they were living at an address at Parafield Gardens.[8] This was a three-bedroom home and she and her brother had their own bedrooms. SD said that the accused usually slept on the couch in the living room and her mother in her own bedroom.[9]

   [8]     T 88-90.

   [9]     T 90.

5. SD went to [HFC] School and started school aged 5.[10] After she completed year 5 at that school she went to [S] Primary School[11] and then to [SE] High School until the end of year 9. She then went to [I] School and after year 10 she moved to another campus of that School. At the time she gave evidence, SD was completing year 12.[12]

   [10]   T 91.

   [11]   T 92-93.

   [12]   T 93-94.

6. The accused moved out of the Parafield Gardens home, but SD could not recall when that was. Her mother started another relationship with MM, who eventually moved into the Parafield Gardens home.[13]

   [13]   T 94.

7. SD visited the accused every weekend that she was not at her father’s house. He was living with his mother at a house in Gilles Plains.[14] When she stayed with the accused and his mother, her brother JK was also there.[15] SD described the Gilles Plains home as having a long hallway with rooms running off the hallway. The accused’s room was the first on the right. His mother’s room was opposite the room she shared with her brother JK.[16]

   [14]   T 96.

   [15]   T 97.

   [16]   T 98.

8. When she visited the accused, SD would always stay the night. The bedroom she shared with JK had a bunk bed which had a double bed on the bottom and a single on the top with a ladder. There was a wardrobe and a set of drawers with a TV on top.[17]

   [17]   T 99.

9. JK would often play on the PlayStation in their bedroom and would sit on the floor when he did so.[18] JK would always sleep on the top bunk and she would sleep on the bottom. She never slept on the top bunk.[19] She had a red and white quilt cover with a triangular pattern. There was a fluffy rug that was on the floor.[20]

   [18]   T 100.

   [19]   T 101.

   [20]   T 102.

10. SD described the accused’s house as very messy, and the accused’s room had boxes in it. There were two toilets, but she never used one of them because the room was filled with rubbish. She used the toilet that was in the bathroom that had a shower and a bath in it.[21]

    [21]   T 102-103.

11. SD never showered at the accused’s home but did take a bath. The shower had rubbish in it, and she did not like showering at other people’s houses.[22]

    Kissing

    [22]   T 104.

12. SD described her relationship with the accused when he was living with her family as close and that he was ‘more like a friend than a stepdad’.[23]  SD was asked whether the accused was affectionate towards her when living together and she gave this evidence:

    [23]   T 104.

    AHe used to kiss me.

    QWhen he kissed you at [SC] where would he kiss you.

    AOn the lips.

    QWhen you were living at [SC], would your mum kiss you.

    AOn the cheek.

    QDid your mum ever kiss you on the lips at [SC] that you can remember.

    ANo.

    QOr any other time.

    ANo.

    QDid you think anything of it if the accused kissed you on the lips at [SC].

    ANot really.

    QDid that happen once, or more than once at [SC].

    AMore than once.

    AWere there ever times that the accused kissed you in a different way to what you’ve just described, that is kissing you on the lips.

    QHe would kiss me with tongue.

    A[SD] can you just describe that for us, please, what you mean.

    QLike kissing but he would put his tongue in my mouth.

    ADid that happen once, or more than once.

    QMore than once.

    AAre you able to remember where you were when that first happened.

    QI think it was at [SC].[24]

    [24]   T 105, 4-32; [SC] was the street name of the house at Parafield Gardens.

13. SD said the accused kissed her on the lips more than once when she visited him at Gilles Plains. SD could not recall the first or last time that the accused kissed her but said that she thought the accused called it a ‘French kiss’. She was not sure how often the accused did this when she stayed at Gilles Plains.[25]

    Touching of breasts in bath.

    [25]   T 107.

14. SD said there was more than one occasion on which the accused was in the bathroom with her at the time she was having a bath. On more than one of those occasions the accused put his hands on her breasts. SD was not sure if JK was in the house at the time, but the accused’s mother was.[26] She never came into the bathroom when SD was having a bath.[27] At the time the accused touched SD’s breasts, she was 11 or 12 years of age and had breasts but they were not very developed. SD was not sure whether the accused touched her breasts every time she had a bath. She was not sure if the accused said anything before or after he touched her breasts. [28]

    Masturbation

    [26]   T 107-108.

    [27]   T 109.

    [28]   T 109-110.

15. SD described an occasion at Gilles Plains when she was in the accused’s bedroom and ‘he took his penis out and made me masturbate him’.[29] She said that the word masturbate meant ‘to pleasure himself’. She could not recall if he said anything to her about what he wanted her to do or whether this happened more than once.[30] SD then said she could see the accused’s penis and had seen it on more than one occasion. When asked if she noticed anything about his penis on the occasions she had seen it, she said ‘not really’. SD explained that the accused made her put her hand on his penis and move it up and down. She thought this only happened once, but she did not know how long it lasted. It stopped when the accused ejaculated.[31] SD did not know how old she was or what school she was going to. It happened after the accused had French kissed her, but she was not sure if it happened before he touched her breasts in the bath.[32]

    [29]   T110, 12.

    [30]   T 110.

    [31]   T 111.

    [32]   T 112.

16. SD gave the following evidence on the topic of whether the accused had touched himself in her presence:

    QWas there ever a time that you saw the accused touching himself in your presence and by that I mean touching any part of his body in your presence.

    AI’m not sure.[33]

    Attempted anal intercourse

    [33]   T 112,25-28.

17. SD said there was one occasion when the accused ‘tried to put his penis into my bum’.[34]It happened in the accused’s bedroom, but she was not sure if it was during the day or night. She thought she was going to [S] Primary School. She thought the accused called her in from the lounge room. There were times when she would get into the accused’s bed.[35]

    [34]   T 112, 36.

    [35]   T 113.

18. The accused took her pants off when she was lying on her back on the left-hand side of his bed.[36] She described what happened next:

    He had my legs up and he was holding them and he tried to put his penis into my bum but it didn’t really work, because it started to hurt so I told him to stop.[37]

    [36]   T114-115.

    [37]   T 114, 26-28.

19. SD said the accused was standing up at the time, but she could not recall seeing his penis. She could not recall whether the accused said anything before she told him to stop.[38]After she told him to stop, he said that he ‘almost had it in’.[39]

    [38]   T 115.

    [39]   T 116, 10.

20. After this occasion, nothing happened between her and the accused and he did not touch her again.

    Cunnilingus

21. SD said there was one occasion when the accused licked her vagina at the Gilles Plains home, but she did not know how old she was or whether it happened before or after she masturbated the accused.[40] It happened in the bedroom she shared with JK, but SD was not sure if it was during the day or night. JK was on the floor in front of the bed playing on the PlayStation. She was on the bottom bunk. The accused came in the room. At this time, SD had a blanket tucked into the base of JK’s bed which hung over the frame for privacy:

    …and he came from around the blanket and told me to take my pants off and I did and he licked my vagina once.[41]

    [40]   T 116.

    [41]   T 118, 3-5.

22. SD said the accused licked the middle of her vagina for less than a minute. She was not sure how it ended but the accused left the room and she pulled her pants back up. She could not recall this happening on any other occasion.[42]

    Uncharged acts

    [42]   T 119.

23. SD said the accused took photographs of her vagina in his room when she was on his bed. She could not recall how it came to be that the accused was able to take a photograph of her vagina but she did not think she had pants on at the time. She said he had ‘the phone pointed at my vagina’ and was standing in front of her.[43]

    [43]   T 120.

24. SD said the accused told her that they were in love and would move into a house together. She could not recall anything else he said about the two of them.[44]

    [44]   T 120.

25. At some stage SD decided she did not want to see the accused any more. She was not sure why that was. She thought she told her mother this but said she was not sure if she still saw the accused.[45]

    [45]   T 121-122.

26. SD said she and the accused would send messages to each other after he separated from her mother. She was at [S] Primary School when she got her first mobile telephone. She and the accused would message each other a lot.[46] SD had an Instagram account when she was at [S] Primary School.[47] SD identified a series of Instagram messages that she had exchanged with the accused: Exhibit P1. SD said the accused would send her love hearts and wink and kiss emojis with his messages. The accused used the word ‘hooman’ which was a word that SD and her friends had made up as part of a language they invented in which they added an extra letter to words.[48]

    [46]   T 122.

    [47]   T 123.

    [48]   T 126-127.

27. SD said that the messages in P1 were sent because she had posted on Instagram that she was at a sleepover with one of her friends and the accused had seen it. She had used it as an excuse not to go to his place.[49]

    [49]   T 128.

28. SD then identified a further series of Instagram messages between her and the accused: Exhibit P2. SD was asked why she sent those messages to the accused, including ‘I don’t want to be like that again Jon. Not the sexual stuff’ because she did not ‘want what was happening before to keep happening’. She explained that she meant the ‘kissing and touching’. She thought she sent these messages after the accused had tried to put his penis in her bottom.[50]

    [50]   T 129-132.

29. SD also identified a further series of text messages between her and the accused: Exhibit P3.[51] Those messages related to an occasion when she was sitting on the armchair in the lounge room and the accused came up to her and kissed her arm and she hit him way. This occurred at the Gilles Plains home.[52] SD said the word ‘dee’ used in the messages was a word she and her friends made up but she could not remember what it meant.[53]

    [51]   A duplicate of these messages was tendered in a different format: Exhibit P3A.

    [52]   T 135.

    [53]   T 136.

30. SD said that when her mother separated from the accused, he and SD had a close relationship. Her relationship with her mother was a little bit negative.[54]

    [54]   T 139.

31. At one point, when she was in year 6 or 7 her mother found messages on her mobile telephone. However, SD did not say anything to her mother about what had happened between her and the accused because she did not want to upset her. She explained:

    I just thought she would blame herself for not noticing anything that was happening.[55]

    [55]   T 140, 10-11.

32. After her mother confronted her about the messages, she spoke with a police officer. She thought she told the police officer about how the accused would touch her breasts in the bath but not anything else. She did not tell the police anything else because she was worried about how her brother JK would react and she did not want to hurt him.[56]

    [56]   T 141.

33. In 2020 or 2021, SD spoke with a police officer, Detective Graham. He was the first person she had told about what had happened to her.[57]

    [57]   T 141.

34. SD said she thought there was a time she went to the Elizabeth Police Station and spoke with a female police officer, before she spoke with Detective Graham. She could not remember what she said to that police officer.[58]

    [58]   T 142.

35. SD was asked to describe the accused’s appearance when she visited him at Gilles Plains. She said that he was tall, a little chubby in the stomach and bald with a little bit of stubble on his face. He had a Harry Potter symbol tattoo on one of his shoulders that said, ‘I solemnly swear I’m up to no good’. She first saw that tattoo when the accused got it, but she could not recall when that was. SD said the accused’s penis was not circumcised.[59] SD said that the difference between a circumcised and uncircumcised penis is that ‘the skin around the tip of the penis, if it’s circumcised it’s cut off and if it’s not circumcised it’s still there’.[60]

    Cross-examination

    [59]   T 142-143.

    [60]   T 144.

36. SD said she referred to the accused’s mother as grandma. She would sometimes come over for dinner at the Parafield Gardens home.[61] SD, the accused, her mother and JK would go to the Gilles Plains home for dinner a lot.[62]

    [61]   T 145.

    [62]   T 146.

37. SD could not say how long it was after the accused moved out of the Parafield Gardens home that she started visiting him at Gilles Plains. She was not sure if she and JK started visiting at the same time or whether he commenced going at an earlier time. Before the accused moved out, she had not stayed the night at Gilles Plains.[63]

    [63]   T 146.

38. SD was shown a plan of the house at Gilles Plains and identified the bedroom she and JK occupied, and the bedrooms occupied by the accused and his mother: Exhibit D4.[64] SD agreed that if she was in the living room looking back towards the front door of the house it was possible to see the doorway to each room.[65] SD agreed that the bath, basin and shower were in the locations depicted in D4.[66] SD was not sure if there was a lock on the bathroom door.[67]

    [64]   T 147-148. Bedroom 3 was shared by SD and JK.

    [65]   T 148.

    [66]   T 149.

    [67]   T 150.

39. SD said that if JK was in the bedroom playing PlayStation he would sit on the ground in front of her bed about two feet away. He was closer to her bed than the television. The television was about 5 or 6 feet from the bed.[68] She did not like JK sitting on her bed or touching her things.[69] There was enough space on her bed to sit up without touching the top bunk. When SD hung the blanket from the single bed it would cover the majority of her bed.[70] The accused’s mother did not like her having the blanket up and SD thought she told her not to do it.[71]

    [68]   T 154-155.

    [69]   T 155.

    [70]   T 157.

    [71]   T 158-159.

40. SD agreed that the accused’s mother did not work and was always at the Gilles Plains home when she was there. She spent most of her time in the living room playing games on her phone or talking to her friends. Most of the time, the accused and his mother were in the living room.[72] SD said the armchair that the accused’s mother sat in was near the wall where the laundry was but closer to the middle, near the letters WM on D4.[73]

    [72]   T 160-161.

    [73]   T 162.

41. SD said that they would all stay up late when she and her brother were staying at the Gilles Plain address. She would usually go to bed around 1.00am but sometimes it was as late as 3.00 or 4.00am.[74] SD explained that she would be on her phone or waiting for dinner. The accused normally cooked dinner and they would eat in the lounge room or at the kitchen table.[75]

    [74]   T 162.

    [75]   T 163.

42. SD agreed that she did not like bathing at the Gilles Plains address and there were times when she would refuse to have a bath.[76] She did not like the bath but when it was put to her that she was scared of the drain and thought people could see in or get in through the window she said she was not sure.[77] SD agreed that there were times when she did not have a bath at all. Her mother was strict about showering and SD would have to shower every day or two days.[78] SD agreed that she did not have a clear memory of how frequently she would take a bath at Gilles Plains. She agreed that the accused and his mother did not make her take a bath.[79]

    [76]   T 165.

    [77]   T 165-166.

    [78]   T 166.

    [79]   T 168.

43. SD said that her mother was experiencing mental health issues when the accused was living with them at Parafield Gardens.[80] SD could not recall any shower routine when the accused lived with them but disagreed that she was made to take her clothes off in the laundry and then go to the bathroom to shower. She said she was not sure if the accused was made to strip off in the laundry before going to the bathroom.[81]

    [80]   T 168.

    [81]   T 169.

44. SD said she was angry or upset with her mother for leaving the accused because SD wanted them to be a normal family.[82]

    [82]   T 170.

45. SD agreed that when her mother found the messages on her mobile phone, she did not tell her mother what they were about and did not say that the accused had engaged in any sexual activity with her. Her mother told her it was okay to talk to her, but she never told her anything. SD understood that her mother organised the interview with police but told her that it was her choice.[83] SD told her mother that there was nothing wrong with the messages.[84]

    [83]   T 171.

    [84]   T 175.

46. SD said she did not speak to her mother about what she had told police in her interview. She said that a few years after her initial interview her mother took her to a police station where she spoke with a female police officer.[85] SD could not really recall what she said to the police officer. She was not sure whether she told that police officer that the accused entered her room in the middle of the night and made her dangle her legs at the end of the bed as part of any description of the occasion of attempted anal intercourse. However, she did not think it was possible that she told the police officer that this incident occurred in her room.[86]

    [85]   T 177.

    [86]   T 178.

47. SD agreed that the accused’s mother told her that she did not need privacy at her age and that her bedroom was directly opposite the bedroom SD shared with JK.[87]

    [87]   T 173-174.

48. SD agreed that her memory of what the accused had done to her was blurry and things were ‘kind of’ all mixed into one.[88] She agreed she told the police that on 21 December 2020. SD said that her memory of events has improved over time. However, she agreed that the order in which the sexual acts occurred was a bit blurry. She was not sure how old she was when the sexual offending started or what the first sexual act was.[89]

    [88]   T 179.

    [89]   T 181.

49. SD said that she could not clearly remember every occasion that the accused touched her chest in the bathroom but just that it happened more than once.[90] SD said that on at least one occasion when the accused did this, the bathroom door was open and the accused’s mother and JK would have been home.[91] The times she had a bath varied. She would be naked in the bath and said she never wore underwear in the bath. It was put to SD that she told the police officer in her 2018 interview that ‘he came in and he like talks to me I was in like my underwear because I don’t like getting in the bath like without underwear on’ and she said she was not sure. She then said she was not sure if she never wore underwear in the bath.[92]

    [90]   T 180-181.

    [91]   T 182.

    [92]   T 184.

1. SD agreed that when the accused licked her vagina, he walked past JK and then went around the blanket hanging from the top bunk and told her to pull her pants down. Her feet were pointing towards his mother’s room and the accused was positioned between her legs. This happened out of the blue and only once. She was a little bit shocked but could not recall whether she said anything to the accused or to JK.[93] She could not recall if he said anything to her before he left. She put her clothes back on and stayed on the bed. JK continued to play PlayStation. She did not recall what she did next.[94]

   [93]   T 187.

   [94]   T 189.

2. SD could not recall how she came to be in the accused’s bedroom when the occasion of attempted anal intercourse occurred. She did not recall where she was before going into the accused’s bedroom.[95] SD was reminded of her evidence in examination in chief that she thought the accused had called her in from the loungeroom. She said she did not know why she said that.[96] SD could not recall telling Detective Graham that the accused’s mother was awake at the time of this incident.[97]

   [95]   T 190.

   [96]   T 200.

   [97]   T 201.

3. SD could not recall how she came to be on the bed or what clothes she was wearing.  She said her legs did not dangle over the side of the bed other than at the start.[98] SD said she was certain the accused lifted her legs up. It was put to her that she had never told police that the accused had lifted her legs up and she said she was not sure and could not remember.[99] SD agreed that she told Detective Graham in December 2020 that she never said anything to anyone about what happened, and she and the accused never spoke about it.[100]

   [98]   T 202.

   [99]   T 203.

   [100] T 204.

4. SD said that after she told the accused to stop, she went to the toilet. She could not recall if the accused said anything to her after she left the room or what she did after going to the toilet.[101]

   [101] T 204.

5. It was put to SD that she never told police that the accused pulled his penis out of his pants on more than one occasion, and she said she was not sure.[102] SD also confirmed that she had said in evidence that the first French kiss was at the Parafield Gardens address when they were all living together. It was put to SD that she had never told police that he had French kissed her at the Parafield Gardens address and she said she was not sure.[103] It was also put to SD that she had never told police that the accused had told her that they would move out together and she said she was not sure.[104]

   [102] T 205.

   [103] T 205-206.

   [104] T 207.

6. SD agreed that she was sitting on an armchair in the living room at Gilles Plains when the accused kissed her on the shoulder, but she was not sure if his mother was in the room. She agreed that her relationship with the accused was close and she thought of him like a stepfather and a friend.[105] SD said that the accused was upset that he was no longer seeing her because he missed her and she missed him. He would message her about how he missed her. It was common for him to say he loved her and for her to say she loved him. He would also tell JK that he loved him. SD agreed that it was normal for the accused, his mother, SD and JK to express feelings of love and affection for each other.[106]

   [105] T 209.

   [106] T 210.

7. SD said she was not sure whether the messages in which the words ‘sexual stuff’ were used were sent before or after she stopped seeing the accused. SD disagreed with the suggestion that the reference to sexual stuff related to disagreements that she had with the accused and his mother about her making TikTok videos, twerking and flashing her chest at the Gilles Plains address. She said she did not think she did any of those things.[107]

   [107] T 197-199, 211

8. SD said she was not sure if the reason she knew the accused was uncircumcised was because she saw him walking naked around the house at Parafield Gardens. She could not recall that.[108]

   [108] T 212.

9. SD agreed that in her first interview she did not tell police that the accused French kissed her, attempted anal intercourse with her, licked her vagina or made her masturbate him. She did not tell police any of that because she was trying to protect JK because she did not want him to be upset if something did happen with the police. She thought JK would hate her for talking to the police.[109] She did tell police that the accused touched her.[110]

   Re-examination

   [109] T 213-214.

   [110] T 215.

10. SD marked on D4 the couch on which the accused’s mother would sit and the position of her bed.[111] SD said she did not think she ever wore underwear in the bath. She could not remember what she told police on this topic.[112] She was asked if there was ever a time when the accused touched her on the breasts in the bathroom, but she was not actually in the bath and she said she did not remember. She said that no police officer specifically asked her where she was at the times that the accused French kissed her. SD agreed that she did not tell Detective Graham when she first spoke to him that the accused had French kissed her but did tell him that when she gave her affidavit dated 25 August 2021.[113]

    [111] T 218-219.

    [112] T 219-220.

    [113] T 220.

    The complainant’s mother – KM

11. I made orders that a one-way screen be placed between KM and the accused and that a court companion could sit with her while she gave evidence. Pursuant to s 13 (7) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to SD’s evidence.

12. KM is the mother of SD and JK. When SD was born on 11 December 2005, she and the accused were living in a unit at Salisbury. They then moved to an address at Parafield Gardens. By that time JK was born.[114]

    [114] T 224-225.

13. The house at Parafield Garden was a three-bedroom house and the children had their own bedroom. The accused more often than not slept in the lounge room. The first school that SD attended was the [HFC] School. This was in 2011. At the end of year 5, SD moved to the [S] Primary School and thereafter [SE] High School.[115] After completing year 8 and 9 she moved to [I] School.[116]

    [115] T 226-227.

    [116] T 228.

14. When JK started school, KM was working as a disability support worker. She started that in 2014 but found it very stressful and her mental health declined. As a result she was admitted to hospital and detained as a result of her condition.[117]

    [117] T 229.

15. Her relationship with the accused ended on 17 August 2015.[118] On that day she met her current partner’s mother. The accused moved out of the Parafield Gardens address and went to live with his mother. JK was six years old at the time. KM described the accused’s relationship with SD at the time as being close. Arrangements were made for SD and JK to continue to see the accused.[119]

    [118] T 229.

    [119] T 230.

16. JK would see the accused every weekend and SD would see him every second weekend.[120] SD would leave on a Friday and return on a Sunday.[121]

    [120] T 231-232.

    [121] T 233.

17. SD was allowed to have a mobile phone when she was at school but KM could not remember when she first had one. There was an occasion in 2018 when KM found messages on SD’s phone between SD and the accused. As a result, KM rang the police and went to the Salisbury Police Station and gave a statement and a copy of the messages. She raised her concerns about the messages with SD, who became upset. She told SD that she had spoken to the police about the messages, but SD did not tell her anything at that stage.[122]

    [122] T 233-235.

18. A few weeks later, KM was in SD’s bedroom and SD told her that the accused had licked her ‘down there’ and gestured to her genitals with her hand. SD was upset. KM told SD it was important that they talk to the police, but SD said she did not want to hurt JK.[123] KM could not recall if she said anything to SD before she made this disclosure.[124]

    [123] T 236.

    [124] T 237.

19. Three weeks later, a detective called KM and asked her to bring SD into the Elizabeth Police Station.[125] SD was interviewed by a police officer, but KM was not present. This interview took place in 2018 and it was about two months after SD had stopped going to the accused’s home.[126]

    [125] T 236.

    [126] T 237.

20. JK continued to go to the accused’s home until 2020.[127]

    [127] T 238.

21. In November 2020, KM again took SD to the Elizabeth Police Station. SD was interviewed briefly. KM was present for part of the interview but then SD asked her to step out. After this, Detective Graham contacted her, and arrangements were made for him to meet with her and SD.[128]

    [128] T 239.

22. KM said that when the accused was living with them at Parafield Gardens, the children showered every second or third day. They would often strip naked in the laundry and put their clothes in the hamper and then go to the bathroom and shower. KM could not recall if the accused did this too. She did not recall the accused walking around the house naked.[129]

    Cross-examination

    [129] T 239-240.

23. KM said the laundry was on the opposite side of the house from the bathroom. To walk from the laundry to the bathroom meant walking through the living area. The bathroom could be seen from JK’s room. KM said that the accused probably walked naked from the laundry to the bathroom, and it was routine that most of the time they would strip in the laundry and put the clothes straight into the washing machine.[130] She had a memory of the accused doing this on at least one occasion. KM did not like laundry hampers in the bathroom and agreed that she had a phobia of germs and had obsessive compulsive disorder. She said that the symptoms of her OCD were not liking the toilet door left open, washing her hands four times when she washed her hands, using hot water and tending to count.[131] KM agreed that in all likelihood when SD was under 10 years of age, she would have seen the accused naked when he walked out from the laundry to the bathroom for a shower.[132]

    [130] T 240.

    [131] T 241-242.

    [132] T 242.

24. KM said that she attributed the decline in her mental health to the accused but did not resent or blame him for that. She did not feel a romantic connection with him, he frustrated her and did not help her enough around the house. It was for these reasons that she decided to end the relationship. Immediately after she ended the relationship, SD and JK started to visit the accused at his mother’s house.[133] 

    [133] T 243-244.

25. KM told SD that she had ‘kicked’ the accused out and she appeared to be upset, as did JK. SD appeared to be upset with KM and would not talk to her very much and wanted to go with JK to the accused’s house rather than spend the weekend with KM. Although this upset KM, she was happy for SD and JK to continue to have a relationship with the accused.[134]

    [134] T 246.

26. When KM found the messages on SD’s mobile telephone, she was concerned and angry at the accused. She assumed the worst and thought something sexual had happened between them.[135]

    [135] T 247-248.

27. KM gave a statement to Detective Graham on 17 February 2021. KM agreed that in that statement she told Detective Graham that after she read the messages:

    I remember feeling so angry. The minute that I knew that [the accused] had done something I wanted to drive over to his house and set him on fire.[136]

    [136] T 249, 4-6.

28. KM spoke to SD immediately after discovering the messages. KM was crying at the time. She asked SD what was going on. SD became upset and angry with KM. SD did not tell her anything at that point. She spoke to her again, but SD refused to tell her anything. KM then took photographs of the messages and went to the Salisbury Police Station the following day. Upon her return home, she told SD she had done so. SD was angry and did not want to talk about the messages. KM did not push her. It was a few weeks after this that SD made the disclosure about the accused licking her ‘down there’.[137] This disclosure was made a few weeks before SD went to the police station and was interviewed.[138]

    [137] T 249-250.

    [138] T 251.

29. After the interview, KM asked SD how it went and if she told the police what she had told KM, but SD said that she did not say anything to police. KM was upset, a little bit furious and she cried. She wanted SD to be truthful. She was upset at SD for not saying anything and would probably have told SD that. KM rejected the suggestion that SD never disclosed to her that the accused had licked her vagina and denied putting pressure on SD to make disclosures to the police about sexual contact with the accused.[139]

    Re-examination

    [139] T 252-253.

30. KM said that the accused was uncircumcised.[140]

    [140] T 253.

    Senior Constable Emma Susanna Radinovic

31. In November 2020, Senior Constable Radinovic was working at the Elizabeth Police Station performing front station duties. On 30 November 2020 she spoke with KM and SD. Senior Constable Radinovic then spoke with SD in an interview room. She made notes at the time. SD told her that the accused had taken photographs of her vagina when she was in bed. SD also said that on one occasion he had entered her room in the middle of the night and made her dangle her legs at the end of the bed. She also said that the accused had once told her that he wanted to take her virginity and it would be a gift for her.[141] SD said she was 10 years of age at the time.[142]

    Cross-examination

    [141] T 268.

    [142] T 269.

32. Senior Constable Radinovic said that SD told her that she had already reported the sexual assault to police and said she wanted to provide a statement.[143] As a result she did not think that she was recording a ‘recent complaint’. Senior Constable Radinovic recorded as accurately as she could the things that SD told her. She agreed that she wrote:

    [SD] stated that she was on her bed at the time and [the accused] entered her room in the middle of the night and made her dangle her legs at the end of the bed.[144]

    [143] T 270.

    [144] T 271.

    Detective Alan Jarrod Graham

33. Detective Graham has been a police officer for almost 23 years. In 2020 he was stationed at the Northern District Child and Family Investigation Section at the Elizabeth Police Station. He was a prescribed interviewer for the purposes of s 74EB of the Summary Offences Act. In December 2020, after receiving a police report he met with SD. He then conducted a prescribed interview of JK which was recorded. The recording of that interview was tendered and played: Exhibit P6.[145]

    [145] T 278-279.

34. Detective Graham said that the first affidavit he took from SD was affirmed on 21 December 2020. He took a second affidavit which was affirmed on 25 August 2021, a third which was affirmed on 4 November 2021 and a fourth affirmed on 23 May 2022.[146]

    [146] T 324-325.

35. The accused was arrested on 27 February 2021 and given his rights.[147]

    Cross-examination

    [147] T 325.

36. Detective Graham initially met with SD on 17 December 2020 and had an initial discussion. He made notes of that discussion. He took her statement a few days later. In the initial discussion, SD said that the accused would kiss her on the lips and she described these as ‘pecks’. SD said there was never a tongue.[148] Detective Graham said that if SD had disclosed kissing with the tongue, he would have made a note of it. Detective Graham agreed that in SD’s first affidavit she made no mention of tongue or French kissing. Detective Graham said SD volunteered in the initial discussion that there was never tongue kissing.[149]

    [148] T 326-327.

    [149] T 328.

37. In the first meeting, SD said that she thought the accused’s mother was awake and JK was in her room and her legs were hanging off the bed when the occasion of attempted anal intercourse occurred.[150]

    [150] T 329.

    JK – the complainant’s brother.

38. After viewing P6 and asking JK questions in the witness box, I determined that JK was capable of giving sworn evidence.

39. I made orders that a one-way screen be placed between JK and the accused and that a court companion could sit with him while he gave evidence. Pursuant to s 13 (7) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to SD’s evidence.

40. JK was born on 28 April 2009. His father is the accused and his mother KM. His sister is SD. He went to the [HFC] School and then moved to [S] Primary school.[151]

    [151] T 295.

41. He could not recall when it was that his father separated from his mother. After they separated, he would see his father every weekend. SD would sometimes go with him.[152] He would go on a Friday and return to his mother on Sunday. His grandmother was at the house when he went to stay there.[153] The house had three bedrooms and two bathrooms. He shared a bedroom with SD. In that room there was a bunk bed with a ladder, and a television on a bookcase.[154] The bottom part of the bunk was wider than the top which was a single bed.[155] There were sheets on the bed and SD had a blanket or rug with a pattern on it. She slept under it like a blanket. JK said he did not think he saw SD hang anything from the rails on the bunk bed.[156]

    [152] T 296.

    [153] T 297.

    [154] T 298.

    [155] T 299.

    [156] T 300.

42. On her twelfth birthday, SD stopped going to the accused’s house, but JK continued to go there. JK was not sure what made him remember that it was SD’s twelfth birthday.[157]

    [157] T 300.

43. Parts of P6 were then played to JK. JK was asked if he told the police officer in the interview, ‘most of the time he would, he would go to bed with pants on, he would get out of bed, and he wouldn’t have any pants on’. JK said he was talking about the accused and that was something he saw and was the truth.[158]

    [158] T 302.

44. JK agreed he told the police officer that SD would go into the accused’s room and give him hugs when it was dark. JK agreed that he saw this. He then said that this happened during the day and the room was dark because the room did not have any lights and the window was covered. This happened more than once but he could not say how many times.[159]

    [159] T 302-303.

45. JK agreed that he was asked in the interview, ‘can you tell me about the last time that you remember that [SD] was laying with him and giving him hugs’ and that he responded ‘Um, that would probably be a couple of days before her birthday or the day on her birthday’ and then said that he was referring to SD’s twelfth birthday.[160]

    Cross-examination

    [160] T 304.

46. JK agreed that SD would go into the accused’s room to wake him up because he slept in a lot. JK sometimes went into his room to wake him up.[161] It was a common thing for him or SD to go in and wake up the accused. JK would sit at the end of the bed and SD would sit ‘more up with him’.[162] Once or twice JK would sit up with him and that would involve him lying close to the accused. JK’s grandmother would come in and ask him and SD to leave his room.[163]

    [161] T 304.

    [162] T 305.

    [163] T 305.

47. JK wanted to wake up the accused so they could spend time with him and do activities. JK agreed that he did not try to wake up the accused all the time. When asked if that was the same with SD, he said ‘Maybe a little bit’. JK said he and SD sometimes let the accused sleep in. JK said that SD woke up before him and he never got up before her.[164]

    [164] T 306.

48. JK was asked how he knew what it was that the accused was wearing when he got into bed, and he said it was because he saw him walk into his room. He agreed that he did not see him get into bed and did not know what he was actually wearing in bed. JK said he was not sure whether the accused was wearing shorts when he was in bed in the mornings. He was not sure if he wore boxer shorts when he got up. JK agreed that he was not sure if the accused was not wearing pants when he got up. JK said that on the occasions when he woke up the accused, he was there when he got out of bed.[165]

    [165] T 307.

49. JK said that he would play PlayStation on the bottom bunk. He also sat on the floor. When he sat on the floor, he would sometimes be close enough to be able to rest on it. He said that when he was not sitting close enough to the bed to lean on it, he would probably be about the distance from him to the court companion.[166]

    [166] T 308-309.

1. JK played PlayStation during the day and also stayed up late ‘a little bit’ playing it. He usually went to sleep around 2.00am. SD would go to sleep at the same time.[167] Sometimes they would watch movies from their respective beds.[168] His grandmother went to bed before him but then said he would probably agree with the suggestion that she stayed up later than him.[169] The accused would go sleep after him. He did not know what time that was because he was asleep.[170]

   [167] T 309-311.

   [168] T 311.

   [169] T 312.

   [170] T 313.

2. His grandmother had a chair that she always sat in but it was not in a position where she could see down the hallway. JK disagreed with the suggestion that it was between the living room and kitchen area. He said it was by the television and it was a couch.[171]

   [171] T 312-313.

3. JK agreed that his grandmother had a policy where the bedroom doors had to remain open, but he was not sure if that included the accused’s door or the bathroom.[172] JK did not know what SD’s bathing routine was because he did not pay attention to what she was doing in the bathroom.[173] He never saw SD have a bath and they never bathed together.[174]

   [172] T 313-314.

   [173] T 314-315.

   [174] T 315.

4. JK said that he and SD were usually in separate rooms if they were hanging out and he would usually be in the bedroom, and she would be in the living room with the accused and his grandmother.[175]

   [175] T 315-316.

5. The accused had facial hair when JK used to visit him. He described it as a ‘bit of a beard’.[176] JK said it was longer than defence counsel’s facial hair which was a short beard and moustache. JK was not sure if the accused rubbed his facial hair on his shoulder to tickle him. He did not recall that happening to SD.[177]

   [176] T 317-318.

   [177] T 318.

6. JK said there was no routine for having a bath or shower at the Parafield Gardens home and he would just be told by his mother to have a shower. He did not recall where he got undressed.[178]

   [178] T 319.

7. JK said that the house he visited the accused at was owned by his grandmother and she was always there. She did not really go out and did not work.[179]

   Re-examination

   [179] T 320.

8. JK said there were times when he saw the accused get out of bed and on those occasions, he had underwear on. He could not recall telling the police officer in the interview that there were times when the accused did not have underwear on. He did not remember seeing the accused without underwear on.[180]

   [180] T 321.

   Agreed facts

9. The following facts were agreed in P7:

   1.Jon Thomas Kelly was born on 6 January 1985.

   2.[SD] was born on 11 December 2005.

   3.Records obtained from the [HFC] Primary School record [SD] attending at the school between 2012, when she was a student in year 1 and 2016, when she was a student in year 5.

   4.Records obtained from the [S] Primary School record [SD] attending at the school between 2017, when she was a student in year 6 and 2018, when she was a student in year 7.

   5.The text messages shown in the photographs Exhibit P1 were sent in March 2018.

   6.The text messages shown in the photographs Exhibit P3 and Exhibit P3A were sent in April 2018.

   7.In April 2018 [KM] made a report at the Salisbury Police Station of messages that she had seen on [SD]’s mobile telephone.

   8.[SD] was interviewed by Senior Constable Sarah Richards on 30 June 2018. Senior Constable Richards is a prescribed interviewer under the Summary Offences Act 1953. During the interview:

   8.1 [SD] was asked at the start of the interview to tell Senior Constable Richards about Mr Kelly.  She said inter alia 'He didn't touch me but he looked at me and said stuff'.

   8.2 Later in the interview Senior Constable Richards said 'I want to ask you outright a question, is that okay', and 'Has Jon ever touched you in a way'. [SD] said 'Once'.  When she was asked to tell Senior Constable Richards what happened [SD] said that she was in the bath and that Mr Kelly touched her chest.  She said that [JK] and [MU] were in the house in the lounge room.  She said that the bathroom door was open. [SD] said that Mr Kelly did not say anything.  She said that she was wearing underwear as she did not like getting in the bath without underwear on.

   9.[SD] did not tell Senior Constable Richards about any of the other sexual acts particularised in the information.

   10.The first time [SD] said that Mr Kelly said that 'We would move into a house together' was during the course of giving evidence.

   11.The first time [SD] said that Mr Kelly took his penis out of his pants on more than one occasion was during the course of giving evidence.

   12.The first time [SD] said that Mr Kelly 'French kissed' her at [SC] was during the course of giving evidence.

   13.[SD] did not tell police that Mr Kelly lifted her legs in the air during the 'butt incident' in her first statement on 21 December 2020.  Rather, [SD] said her legs were hanging off the bed.

   14.The first time [SD] said Mr Kelly lifted her legs up in the air during the course of the 'butt incident' was in her second statement on 25 August 2021.

   No case to answer

10. At the close of the prosecution case, Mr Mickan for the accused, made a no case to answer submission with respect to particular (a), the allegation that the accused masturbated in SD’s presence. He argued that SD had given no evidence that the accused had done so. Mr Allen for the prosecution conceded that there was no case to answer on particular (a). I recorded a finding of no case to answer on particular (a).

    Defence case

11. The accused did not give or call evidence as part of a defence case. I remind myself that he was under no obligation to do so, and I cannot draw any inference adverse to him for exercising his legal right to silence.

    Closing submissions

    Prosecution submissions

12. In closing, Mr Allen contended that the only element in dispute in this trial was whether the particularised unlawful sexual acts occurred. Mr Allen said that the remaining three elements had been proved beyond reasonable doubt and were not in dispute.

13. The prosecution case was principally based on the evidence of SD, but not entirely. Mr Allen said that I should scrutinise SD’s evidence with care and that would involve an assessment of her credibility and reliability. Mr Allen said I should have regard to the following six factors:

    1.   The intrinsic likelihood or unlikelihood of her account.

    2.   How SD stood up to cross-examination.

    3.   How SD’s evidence fits with other evidence in the trial that I found convincing.

    4.   How SD’s evidence does not fit with other evidence in the trial that I found convincing.

    5.   Whether SD was giving evidence of something that I found to be plausible.

    6.   Whether SD was giving evidence of something I found to be implausible.

14. SD was aged between 9 and 12 years of age at the time of the alleged offending. JK was aged between 5 and 8 years of age. They were both still children when they gave evidence.

15. Mr Allen said that if I found that there were deficits in their recollection or mistakes in SD’s evidence that affects reliability, but does not necessarily mean that the witness is dishonest. Mr Allen reminded me that I can accept some, all or nothing of what a witness says. He also reminded me that witnesses vary in their levels of intelligence, confidence and backgrounds which may affect the manner in which they give evidence.

16. Mr Allen provided a document that set out the particulars relied upon by the prosecution and the references in the transcript to the evidence of those particulars, together with the references to the evidence of the uncharged acts, comprising the exposure of the penis and the taking of a photograph of SD’s vagina.

17. Mr Allen said that SD’s general appearance when she gave evidence was one of a young girl who lacked confidence. She appeared nervous. However, those features of the manner in which she gave evidence should not cause concern because giving evidence is not an easy exercise.

18. Mr Allen acknowledged that the words ‘I’m not sure’ featured prominently in SD’s evidence in examination and cross-examination. Mr Allen said that there were three potential reasons for this. Firstly, SD was being careful when she gave evidence instead of guessing. Secondly, SD was intimidated by the atmosphere of the courtroom. Thirdly, by then end of the first day she was simply exhausted and unresponsive.

19. Mr Allen noted that SD was never argumentative. He also emphasised that the responses ‘I’m not sure’ or ‘I can’t remember’ do not establish the proposition being put to her.

20. Mr Allen conceded that there were inconsistencies in SD’s evidence between examination and cross-examination and prior inconsistent statements were proved. Those prior inconsistent statements included the assertion in SD’s record of interview that when the accused touched her in the bath, she was wearing her underwear when in court she said she never wore underwear in the bath and she was naked in the bath when the accused touched her. In addition, SD said in examination in chief that the accused had taken her pants off prior to the attempted anal intercourse but in cross-examination said that she could not recall how her clothes had come off or if they had come off. She also said to police that this incident occurred in her bedroom not the accused’s bedroom.

21. However, Mr Allen urged me to find that she was a convincing witness. What she said had the ring of truth to it and sounded believable. Mr Allen said that if she was giving a false account of the occasion of cunnilingus, was she clever enough to include the evidence of the blanket hanging over the rail of the bunk bed but not invent other details about the event. Why did she only allege one occasion an attempt at penile-anal intercourse and one occasion of cunnilingus? Why did she admit that JK was in the room when cunnilingus occurred?

22. Mr Allen conceded that I might not find particular (a) proved beyond reasonable doubt because SD gave evidence that the accused kissed her on the lips more than once at the Parafield Gardens address (prior to the commission of any of the other alleged unlawful sexual acts) and she did not really think anything of it.

23. Mr Allen said that the complaint evidence was complicated because SD said she did not complain to her mother, but her mother said SD told her that the accused had performed cunnilingus upon her. Thereafter, there was an elaboration of the initial complaint to KM to Senior Constable Richards in June 2018 by a disclosure of the touching of the breasts on one occasion and a further elaboration to Senior Constable Radinovic in November 2020 of an occasion of attempted anal intercourse. Mr Allen said that the progression of the complaints was indicative of a hesitancy on SD’s part to make disclosures. Mr Allen said that SD gave an explanation for her hesitancy, namely the fact that she viewed the accused as a friend and was worried how JK would react if she spoke to the police.

24. Mr Allen argued that the evidence supported a finding that SD complained after April in 2018 and then elaborated upon that complaint on two subsequent occasions and that the making of these complaints demonstrates consistency. However, Mr Allen conceded that there was an inconsistency in the terms of the complaint in November 2020 because Senior Constable Radinovic gave evidence that SD told her the attempted anal intercourse occurred on her bed and that her legs were dangling over the bed. Mr Allen also conceded that this inconsistency assumed importance given the configuration of the bunk bed and the likelihood of the accused attempting anal intercourse by holding SD’s legs in the air on the bottom part of the bunk bed. 

25. Mr Allen also addressed the question of whether the evidence of KM that SD complained to her about an act of cunnilingus was inconsistent with SD’s evidence that she did not tell her mother that the accused had done sexual things with her when her mother confronted her about the messages she found on her phone. Mr Allen argued that SD’s denial of disclosure to her mother was confined to the context, namely during the confrontation about the text messages. In the alternative, even if I accepted KM’s evidence of the complaint, Mr Allen argued that I should not find that this was a deliberate omission by SD because she knew she had fabricated the allegation. If I accepted SD’s evidence and found that she never made the complaint about which KM gave evidence, Mr Allen said that I could not infer that KM influenced SD in any way to make the complaint she did in November 2020.

26. Mr Allen said that SD’s account of the accused’s penis being uncircumcised was supported by KM and not challenged in cross-examination. Mr Allen argued that I might find this demonstrated esoteric knowledge but accepted that KM’s evidence allowed for the possibility of SD seeing the accused’s penis in innocent circumstances.

27. Mr Allen said that KM and JK’s evidence established the opportunity for the offending to occur and that there was no basis upon which I could infer that there had been collusion between KM and SD or JK and SD.

28. Finally, Mr Allen addressed the text messages in P1 – P3. He said that there was a clear acknowledgement by the accused in those messages of some sexual activity between him and SD. Mr Allen said that I could not use the accused’s messages as an admission regarding any of the particularised sexual acts. This acknowledgement could be used in a general way in so far as it supports SD’s evidence broadly that there had been some form of sexual activity between her and the accused and that it is an item of circumstantial evidence supporting her account of a sexual relationship between her and the accused.

29. In closing Mr Allen said that whilst the offending might seem brazen the sexual acts were fleeting and therefore the risk of detection was lower. SD’s account was intrinsically likely, and I could be satisfied beyond reasonable doubt of the accused’s guilt.

    Defence submissions

30. Mr Mickan put forward five reasons why I ought to entertain a reasonable doubt about the accused’s guilt:

    1.SD’s account suffered from a lack of important contextual detail.

    2.SD’s account contained significant internal inconsistencies and there were proved prior inconsistent statements.

    3.SD’s evidence was inconsistent with other evidence in the prosecution case.

    4.The brazenness of the alleged conduct was such that it was inherently implausible given the absence of evidence of grooming and escalation of offending.

    5.There was an absence of clear opportunity.

31. Mr Mickan said that these five matters in combination should leave me with a reasonable doubt regarding the accused’s guilt.

32. Mr Mickan emphasised that SD did not come up to proof on particular (a), the allegation that the accused masturbated in her presence and that I should treat that as a prior inconsistent statement in accordance with the principles articulated in R v M, AS (2013) 118 SASR 160:

    The use of a demonstrated inconsistency between the prosecutor’s opening and a witness’ testimony to test the credit of that witness is a traditional and well-known process. The extract from Davis and Hyland v The Queen discussed above referred to inconsistencies established on this basis:

    ... A direction from the judge was required in conjunction with references to evidence; not just of possible inconsistencies between what the woman was then saying and what she had said in April, but also as to any inconsistencies between her evidence and the case as opened to the jury. ... (Emphasis added)

    There are many authorities in which a similar process has been referred to on appeal. The results of appeals have varied (often in line with the importance or otherwise of the inconsistency in question). What is constant is that this process of drawing an inference that the witness has previously made an inconsistent statement is open to the jury. [footnotes omitted].[181]

    [181] [91] – [92].

33. Mr Mickan said that this proved prior inconsistent statement is an important one because it related to a particularised sexual act.

34. Mr Mickan emphasised the fact that SD admitted that her memory of the alleged offending was blurry and that included the order of the sexual acts. SD was not sure when the first sexual act occurred and was not sure about the sequence in which the different sexual acts occurred. Further, SD’s account of the circumstances surrounding or attending the alleged sexual acts was devoid of any detail. Mr Mickan said that these memory deficits fed into the inherent implausibility of SD’s account because there was no established pattern of escalation of offending by which the plausibility of the brazen nature of some of the alleged offending could be evaluated.

35. Mr Mickan illustrated his submission by reference to SD’s evidence that the accused touched her chest in the bathroom on more than one occasion but could not clearly remember each occasion, could not say how many times it occurred and did not recall telling police in her 2018 interview that the accused touched her once and was not sure if she had a memory of this occasion.

36. Mr Mickan said that SD’s evidence regarding the allegation that the accused caused her to masturbate his penis was devoid of any detail. SD did not recall what the accused was wearing, whether this happened more than once, whether the accused said anything to her about what he wanted her to do, how long it lasted, how old she was or what school she was at. Although SD said it ended when the accused ejaculated she did not describe the encounter in any other detail.

37. In relation to the attempted anal intercourse, SD said she was not sure when it happened. In examination in chief, SD said the accused called her into his bedroom from the loungeroom but in cross-examination she said she was not sure where she was and how she came to be in the bedroom. When asked about the shift in her evidence, she said she could not recall the evidence she gave the day before or why she said that. Whilst SD said the accused held her legs up, she provided no further detail regarding this manoeuvre and could not recall seeing the accused’s penis, or whether the accused said anything to her. She did recall telling the accused to stop because it was hurting, and he did so. She did not know how she came to be on the bed, whether she said anything to the accused or he said anything to her, including when he held her legs up. She could not recall whether she was wearing clothes or if so, whether they came off. She could not recall if the accused said anything to her before or after she left the room.

38. In relation to the allegation of cunnilingus, SD was not sure how the act ended, whether the accused said anything to JK or to her before telling her to pull her pants down. She could not recall if she or the accused took her pants off or whether he told her to put them back on or what happened after the incident ended.

39. Mr Mickan said that SD’s evidence of the uncharged act of the accused taking a photograph of her vagina was devoid of detail. She could not recall how it came to be that the accused took the photograph or whether she or he said anything when he did so. The only other detail she provided was that the accused was standing up in front of her.

40. Mr Mickan then summarised the inconsistencies attending SD’s account as follows:

    1.SD omitted to mention in her first statement that the accused French kissed her despite being asked by Detective Graham whether this occurred. In evidence she said for the first time that she thought the first time the accused French kissed her was at the Parafield Gardens address.

    2.SD said for the first time in evidence that the accused removed his penis from his pants on more than one occasion.

    3.SD gave evidence that she was naked in the bath on the occasions that the accused touched her breasts but said in her 2018 interview that she was in the bath when the accused touched her chest and that she was wearing underwear as she did not like getting in the bath without underwear on.

    4.SD gave different accounts of the extent of the sexual offending. In her 2018 interview she denied that the accused had touched her in any way and when asked directly she said he had only touched her once. Her explanation that she did not disclose all of the offending because she did not want to hurt JK did not sit comfortably with the fact that she did disclose that the accused touched her chest in the bath.

    5.SD told Senior Constable Radinovic that the attempted anal intercourse occurred on her bed in the middle of the night and that the accused made her dangle her legs at the end of the bed. In evidence, SD said that it occurred in the accused’s bedroom on his bed and her legs were held in the air by the accused.

    6.SD said for the first time in evidence that the accused told her that they would move into a house together.

1. The elaboration of the complaint comprised of the disclosure to KM of an act of cunnilingus is consistent with SD’s account of a single act of cunnilingus, but the disclosure occurred almost two years after her first interview with police. SD denied this disclosure, but I am satisfied it took place. However, because I have found that KM was wrong about the timing of this complaint, and it does not have a temporal nexus with the discovery of the text messages, the circumstances in which the elaboration occurred are not clear. I am not satisfied that this elaboration demonstrates consistency of conduct.

2. The further elaboration of the complaint to Senior Constable Radinovic did not demonstrate consistency of conduct or account. SD told Detective Graham that she had never spoken to anyone about the incident involving the attempted anal intercourse. SD said she did not really recall what she spoke to Senior Constable Radinovic about. She said she did not think it was possible that she told police the attempted anal intercourse occurred in her bedroom. Senior Constable Radinovic’s evidence established that the elaboration of the complaint involved an allegation that SD was on her bed in the middle of the night and the accused came into her room and made her dangle her legs at the end of the bed, that on a separate occasion the accused had taken photographs of her vagina when she was in bed and had once told her that he wanted to take her virginity and it would be a gift for her. No aspect of the complaint as recited in evidence by Senior Constable Radinovic included the allegation of attempted anal intercourse. Accordingly, the only aspect of the elaboration that was consistent with SD’s account was the allegation of taking photographs of her vagina.

3. Although SD explained why she omitted to tell police in 2018 all of the details of the alleged offending, SD was not asked and did not explain why she provided a further statement to Senior Constable Radinovic in 2020. She could not recall what she discussed with Senior Constable Radinovic. She denied making a complaint to her mother, and accordingly, there is no explanation from her on this topic. SD said the first person she told about what had happened to her was Detective Graham but did not explain why she decided to disclose the offending to him at that time.

4. In light of the chronology and the evidence of SD on the topic of the initial complaint and its elaboration, it is difficult to conclude that the explanation for the evolution of the complaint was hesitancy on her part.

   Text messages

5. In evaluating SD’s evidence, I have taken into account the messages in P1 – P3.

6. In P1, on 10 March 2018 the accused messaged SD saying that ‘it’s different now I know’ and told SD that he was not going to ‘grill’ her or invade her privacy with her phone. On 23 March 2018 the accused told SD she did not love him anymore, but he loved her ‘so much’ and then sent a message ‘I said I fucking love you’. I infer from the messages in P1 that there had been some communication between the accused and SD which is not part of P1 and was likely to have occurred via Snapchat. There are no messages from SD in response to the messages in P1. I am not prepared to infer from the messages in P1 any admission of a sexual relationship or interaction with SD. However, I infer and find that the accused was very upset that SD was no longer staying over at his mother’s place and was pleading with her to return.

7. The messages in P3 are sent a month after the messages in P1 and include responses from SD. The evidence of SD and the content of the messages establish that when the messages were sent SD was visiting the accused at his mother’s house and the accused tried to kiss her arm. I infer and find that, by this time, SD had asked the accused to modify his behaviour towards her.

8. It is an agreed fact that KM made a report to police in April 2018 after seeing messages on SD’s phone. I infer and find that the messages in P2 were sent after the messages in P3. I have carefully considered the messages from the accused in P2. The accused tells SD that he wishes ‘we were back to normal’ and asks her if she thinks ‘we’ll get there’. SD’s response ‘I don’t want to be like that again Jon. Not the sexual stuff’ suggests that she does not want to return to the way in which she and the accused interacted together because that involved ‘sexual stuff’. I infer from the accused’s response that he understood what SD meant by ‘sexual stuff’, and that SD did not want be like that again and as a result he wanted to clarify what he meant by ‘back to normal’ which was to be ‘close friends’. The next message is telling because the accused says that he does not want it to ‘go back that way either’ because ‘we were so stupid.’

9. I am satisfied that the messages sent by the accused in P2 are an implied admission of some form of sexual behaviour with or towards SD. That inference is irresistible given the clear meaning of SD’s terminology ‘sexual stuff’ and the accused’s reaction to it. However, I note that the word ‘stuff’ was used by SD in her interview on 30 June 2018 when she said the accused looked at her and ‘said stuff’. An inference is open that the reference to ‘sexual stuff’ was a reference to sexualised language used by the accused towards SD.

10. I am satisfied that the accused had a relationship with SD which he acknowledged in the messages in P1 – P3 was one that involved some form of sexual behaviour, was wrong and for which he was sorry. I infer and find that the accused understood that SD no longer wanted to interact with the accused in the way that she had previously, but he wanted to pursue what he described as a close friendship with her.   

11. The messages in P2 cannot, in their terms, constitute an admission by the accused of any or all of the charged or uncharged unlawful sexual acts.

12. However, the messages provide some support for SD’s account of an inappropriate relationship with the accused that involved some form of sexual behaviour. In those circumstances, it is appropriate for me to take them into account in evaluating SD’s evidence that the accused committed the unlawful sexual acts particularised. This evidence may overcome a doubt that I might otherwise have entertained about SD’s evidence that there was a sexual component to the relationship between her and the accused.

13. I must be careful not to use this evidence as a makeweight if I find myself in a position where my concerns about SD’s credibility or reliability with respect to an alleged unlawful sexual act are such that I could not be satisfied beyond reasonable doubt that the act occurred.

14. The correct approach to this evidence is as general support for SD’s evidence that the accused behaved in a sexual manner towards her. I will return to this topic later in my reasons.

    Esoteric knowledge

15. I am not prepared to find that SD’s account of the accused’s penis being uncircumcised demonstrates esoteric knowledge. SD said she was not sure whether the reason she knew the accused was uncircumcised was because she saw him walking naked around the house at Parafield Gardens. When asked whether she noticed anything about the accused’s penis on the occasions she had seen it (namely, when he caused her to masturbate him and he exposed his penis on other occasions) she replied, ‘not really’.  KM gave evidence that left open the possibility that SD had seen the accused’s penis in innocent circumstances.

    Memory deficits

16. One of SD’s common responses to questions in examination and cross-examination was either ‘I’m not sure’ or ‘I can’t remember’. She was in the witness box for less than a day and half and gave this response 272 times.

17. SD agreed that her memory of what the accused had done to her was blurry and events were all mixed into one. She could not say in which order the sexual acts occurred, what sexual act was first in time or how old she was when the sexual acts commenced. This is to be contrasted with her evidence that her memory of events had improved over time.

18. The assertion of improved memory was difficult to reconcile with SD’s inability recall more recent events, including what she told Senior Constable Radinovic or the fact that she made a complaint to her mother shortly beforehand. Further, the assertion of improved memory did not sit comfortably with the lack of contextual detail in SD’s account of the charged offending.

19. An internal inconsistency in SD’s evidence contraindicated an improved memory. In examination in chief, SD said that before the accused attempted anal intercourse with her, she thought he had called her into his room from the loungeroom. In cross-examination, SD said she did not recall where she was before going into the accused’s bedroom, and she could not recall that she said otherwise in examination in chief or why.

20. SD’s account of the unlawful sexual acts was largely devoid of any detail, context, sequence or time frame. This feature of her evidence might be explicable if the sexual conduct was regular, repeated and undifferentiated. It is often the case that young children are unable to provide precise dates or times in such circumstances. However, SD said that three of the most heinous of the charged unlawful sexual acts occurred only once. Those unlawful sexual acts were not linked to a particular life event such as a birthday or Christmas, or a particular time of the day or night or season or even a calendar year.

21. There was a singular lack of detail surrounding the allegations of sexual acts. No events leading up to the various sexual acts were described. The act of cunnilingus occurred in the presence of JK, who was only a few feet away. However, SD gave no account of any interaction between JK and his father, whom he must have seen enter the room because he walked past JK. SD did not explain what happened after the sexual act ended, how it was that the accused came to leave the room or whether JK was in a position to have seen what had occurred.

    Inconsistencies

    Failure to come up to proof/prosecution opening

22. SD did not give any evidence of the unlawful sexual act alleged in particular (a), namely that the accused masturbated in her presence. As a result, I found there was no case to answer on that particular. In opening, Mr Allen said that there was a single occasion when SD was in the accused’s bedroom, and he told her to give him a ‘hand job’. He took his penis out of his pants and masturbated himself. He then caused SD to masturbate him until he ejaculated. In these circumstances, I have drawn the inference that this was an allegation that SD had made on a prior occasion but which she did not repeat in the witness box. On one view, it is a prior inconsistent statement because it contains important detail which was not repeated when SD gave evidence about this occasion.

23. In evidence, SD did not positively say that the accused had never masturbated in her presence. Rather, when asked if he had ever touched himself in her presence, she said she was not sure. However, what is clear from the prosecution opening is that there was a direct and temporal connection between the accused masturbating himself in SD’s presence and then causing her to masturbate him. One occurred immediately after the other. In those circumstances, the failure to mention a sexual act that was an integral part of the occasion upon which SD said she masturbated the accused undermines her credibility and reliability.

24. In the prosecution opening, it was asserted that the uncharged offending was comprised of, inter alia, the accused taking a photograph of SD on one occasion while she was naked in the bath and regularly telling her that he wanted her to lose her virginity to him. In evidence, SD did not give evidence consistent with the prosecution opening but said that the accused once took a photograph of her vagina when she was in his bed and said for the first time in the witness box that the accused told her that they would move into a house together.

25. In these circumstances, I find that SD has made allegations on a prior occasion which she did not repeat in the witness box. In my view, these omissions also undermine SD’s reliability and credibility.

    Prior inconsistent statements

26. The following prior inconsistent statements (by omission and commission) were proved:

    1.SD told Senior Constable Richards in an interview on 30 June 2018 that the accused did not touch her but looked at her and said stuff. In the same interview, SD said that the accused had touched her once on the chest when she was in the bath. SD said that she was wearing underwear because she did not like getting in the bath without underwear on. SD did not disclose to Senior Constable Richards any of the other sexual acts particularised in the Information.

    2.SD said in evidence for the first time that the accused told her that they would move into a house together.

    3.SD said in evidence for the first time that the accused took his penis out of his pants on more than one occasion.

    4.SD said in evidence for the first time that the accused ‘French kissed’ her at the Parafield Gardens address.

    5.SD gave evidence that she was naked in the bath on the occasions that the accused touched her breasts. In her 2018 interview she said that she was in the bath and wearing underwear.

    6.SD told Senior Constable Radinovic on 30 November 2020 that on one occasion the accused came into her room in the middle of the night when SD was on her bed and made her dangle her legs at the end of the bed.

    7.SD told Detective Graham on 17 December 2020 that on the occasion of the attempted anal intercourse, her legs were hanging off the bed.

    8.SD told Detective Graham on 17 December 2020 that there was never any tongue kissing with the accused.

    9.When describing the occasion of attempted anal intercourse on 21 December 2020 SD said that her legs were hanging off the bed.

27. In my view, the prior inconsistent statements referred to above are material and undermine SD’s credibility and/or reliability.

28. The cumulative effect of those inconsistencies cannot be ignored. No, or no adequate explanations were given for those inconsistencies. When confronted with an inconsistency SD said that she either could not recall making the prior inconsistent statement or omitting to make it, did not think she would have made it or omitted it, or was not sure if she had made it or omitted it. The only prior inconsistent statement by omission that SD explained was the omission from her first interview of any mention of the unlawful sexual acts, other than the touching of her chest in the bath. SD’s explanation that she thought JK would hate her for talking to the police was difficult to reconcile with her disclosure of an aspect of the offending, and her later disclosure to police of the balance of the offending.

    Brazenness of offending

29. On the prosecution case, the offending occurred at times when the accused’s mother and son JK were present in the house. On one occasion, JK was present in the room and only a few feet away. The offending as alleged was very brazen. However, the lack of detail regarding the time of day or night that the offending occurred, where other persons were located in the house and whether they were awake or asleep (with the exception of the allegation of cunnilingus), makes it difficult to evaluate how brazen the offending in fact was.

30. I also bear in mind the observations of Doyle CJ in R v Corrigan:

    In my opinion the court must be careful when considering a submission that the circumstances of the offence are inherently unlikely or improbable. In the nature of things, the jury, and a court of appeal subsequently, are required to consider conduct that, if it did occur, is abnormal or unusual. In my opinion it is wrong to approach the assessment of the evidence in such a case on the basis that a person who commits an offence, such as that which K alleged, would commit an offence only in circumstances that suggested a carefully planned event, involving little risk of detection. The court cannot fully understand the thinking of a person who would commit an offence such as this, nor is it easy to assess the effect upon a person of a strong desire to commit an offence such as that alleged here. Moreover, it is an unfortunate fact that it is not uncommon for sexual offences involving children and young people to be committed in circumstances in which a dispassionate observer would think that an attempt to commit the offence would be unlikely because of the risk of detection.[185]

    [185] R v Corrigan (1998) 74 SASR 454.

31. When viewed as a whole, I do not consider that SD’s account of the location and circumstances of each unlawful sexual act other than the act of cunnilingus (limited as it is by the lack of context and detail) renders her account inherently implausible.

32. The circumstances in which SD said the act of cunnilingus occurred suggest the offending was very brazen. JK was within a few feet of the bed on which SD was when the accused licked her vagina. SD did not give any evidence of any other occasions when the accused came into the bedroom and was on SD’s bed with her. SD could not say how old she was, so it is impossible to determine JK’s age at the relevant time. If SD is correct about when she commenced and then ceased staying over at the accused’s house, JK was between 6 and 8 years of age.

33. JK did not give evidence of any occasion when the accused came into the room he shared with SD and was on or in the bed with her. If this was a regular occurrence, JK may not have paid attention to what the accused was doing at any given time, but I would have expected JK to remember the fact that the accused would spend time with SD in their shared bedroom. JK was able to recall going into the accused’s bedroom to wake him up and SD going into his room and giving him hugs. If it was unusual or out of the ordinary for the accused to be in the room on the bed with SD, it is something that JK is likely to have noticed it at the time. On the state of the evidence before me, I consider the account given by SD of the act of cunnilingus to be inherently unlikely given the risk of the accused being seen by JK and JK telling someone what he had seen.

    Other matters

34. SD’s evidence relating to particular (f), the allegation kissing on the mouth on more than one occasion, did not establish beyond reasonable doubt the unlawful sexual act of indecent assault. The evidence of SD was that the accused was affectionate towards her when they were living as a family and kissed her on the lips and she did not really think anything of it. It is clear from SD’s evidence that the kissing occurred prior to the commission of any other alleged unlawful sexual acts. There was nothing about the description of this conduct from which I could infer a sexual connotation, particularly given SD’s reaction. A kiss on the lips between a stepdaughter and stepfather is conduct that, judged by prevailing community standards, might be considered part and parcel of a normal affectionate familial relationship and not one from which an inference of sexual interest arises. SD’s evidence on this topic was not challenged. However, this evidence does not establish that the accused committed the unlawful sexual act of indecent assault.

    Conclusion

35. The cumulative effect of the matters that undermine the credibility and reliability of SD’s evidence leave me in a position where I have a reasonable doubt about the guilt of the accused. In my view, it would be intellectually dishonest to seek to overcome that doubt by resort to the admissions made by the accused in P2. The accused’s admission that he had engaged in ‘sexual stuff’ with SD is capable of covering an infinite variety of sexual behaviour, contact and non-contact, from the relatively innocuous to the most heinous. I have already noted the correspondence between SD’s use of the word ‘stuff’ in her first interview when describing inappropriate behaviour by the accused and her use of the words ‘sexual stuff’ in P2. The ambiguity inherent in the admission means that it cannot be used as an admission with respect to the specific unlawful sexual acts charged.

1. Whilst I have no doubt that the accused has behaved in a sexually inappropriate manner towards SD and in doing so may have committed sexual offences against SD, the state of the evidence led in this case does not reach the high threshold required for a finding of guilt beyond reasonable doubt of the offence charged.

   Verdict

2. I find the accused not guilty.

   
   

– [115] and Murray AJA at [191] – [195].