R v Korth - [2019] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KORTH
Criminal Trial by Judge Alone
[2019] SADC 133
Judgment of Her Honour Judge Davison
5 September 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The complainant is now aged nine years old. She attended Family Day Care for many years at the home of the accused. As a part of the care arrangement, she regularly slept at the house on Friday night. She alleged the accused touched her on the vagina during the evening while she was in bed on more than one occasion.
Accused gave and called evidence.
Charge not proved beyond reasonable doubt.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Juries Act 1927 (SA) s 7(1)(a); Evidence Act 1929 (SA) s 13A, s 9; R v J,JA [2009] SASC 401; Hamra v The Queen [2017] HCA 38, referred to.

R v KORTH
[2019] SADC 133

The accused is charged with maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (hereinafter the ‘Act’). It is alleged that he committed this offence against the complainant, SP who was an attendee of his wife’s family day care service, run from their family home, between 1 February 2014 and 26 January 2018, when the complainant was between the ages of four and seven years. SP gave evidence in this trial. The prosecution relies on her evidence to prove this case beyond reasonable doubt. The accused denied any inappropriate contact with SP at any stage.
Mr Korth pleaded not guilty. He elected for trial by Judge alone.[1] The trial proceeded without a jury.
[1] Juries Act 1927 (SA) s 7(1)(a).
Pre-trial Matters
Oral applications were made by the prosecution for special arrangements pursuant to s 13A of the Evidence Act 1929 for the taking of the complainant’s evidence. Those arrangements were the court being closed, her evidence being delivered via closed-circuit television, and having a court companion. I granted these applications. Accordingly, I warn myself that I must not draw any adverse inference against the accused, nor should I allow the fact that these arrangements were in place to influence the weight that I give to the witnesses’ evidence.
I initiated an inquiry into the ability of the complainant and the witness, MK to give sworn evidence pursuant to s 9(1) of the Evidence Act 1929 as both were nine years of age at the time of giving evidence. I determined that the witnesses were unable to give sworn evidence. The complainant and MK were therefore assessed by me pursuant to s 9(2) of the Evidence Act 1929. Upon conducting my assessment, I was satisfied that they were able to give unsworn evidence. Accordingly, both the complainant and MK gave unsworn evidence.
General Directions
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 charged.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the words proved, established, or satisfied in each case, I mean to an extent which excludes a reasonable doubt.
The accused is presumed by law to be innocent of the charges unless and until the evidence that I accept satisfies me that each element of the charge has been proven beyond reasonable doubt. If, however, the evidence fails to satisfy me beyond reasonable doubt on any of the elements of the offence, then he remains innocent and I must return a verdict of not guilty.
If I am satisfied that there is an explanation consistent with the innocence of the accused or I am unsure where the truth lies, then I must find the charge has not been proven beyond reasonable doubt and I must find the accused not guilty.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by the witness. I can reject or accept all or part of the witnesses’ evidence.
The accused has given evidence. He was not obliged to give evidence but chose to do so. His evidence must be considered along with the other evidence in the case. By giving evidence and presenting a case, he does not assume any burden of proof. That burden always remain with the prosecution. Even if I reject any explanation that was given by the accused, that is not an end to this matter. I must be satisfied that each of the elements of the charge under consideration has been proven beyond reasonable doubt, notwithstanding the case presented by the defence before I can return a verdict of guilty.
I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy, prejudice or fear and must not be influenced by public opinion.
The Charge
The accused is charged with one count of maintaining an unlawful sexual relationship with a child.
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert Korth at Northfield, between the 1st day of February 2014 and the 26th day of January 2018, maintained an unlawful sexual relationship with [SP], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [SP], namely:
(a) inserting a finger or fingers into her vagina;
(b) touching her vagina.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
This offence has five essential elements, each of which must be proven by the prosecution beyond reasonable doubt before an accused person can be found guilty of the offence.
The first element is that the accused person was an adult, being a person of or above the age of 18 years, at the relevant time. The relevant period is between 1 February 2014 and 26 January 2018. It was an agreed fact that the accused was born on 5 April 1955. This element is not in issue and I find it proven beyond reasonable doubt.
The second element is that the complainant was under the age of 17 years during the relevant period. At trial, the complainant’s birth certificate was tendered. Her date of birth is 29 January 2010, making her between four and seven years of age during the relevant period. I find this element proven beyond reasonable doubt.
The third element is that there was a relationship though not necessarily a sexual one, between the accused and the complainant in the time period alleged, that is between 1 February 2014 and 26 January 2018. This element was not in issue at trial. I am satisfied beyond reasonable doubt that there was a relationship in the form of the complainant being cared for by the accused’s wife.
The fourth element is that two or more unlawful sexual acts occurred with or towards a child over any period of time. In this case, the unlawful sexual acts are particularised by the prosecution to be that the accused inserted a finger or fingers into the complainant’s vagina and touched the complainant’s vagina.
Consent has no part to play in relation to this case, as at all stages SP was under the age of consent. It is not necessary for me to find that all the unlawful sexual acts alleged by the prosecution are made out in order for the offence to be proven beyond reasonable doubt. It is sufficient for me to find that two or more acts were performed on or with the complainant during the relevant period. If the act of inserting a finger into the complainant’s vagina was proved, this could constitute an offence of unlawful sexual intercourse pursuant to s 49(1) of the Act. Touching her vagina could constitute an offence of aggravated indecent assault contrary to s 56 of the Act.
The fifth element of the offence is maintenance of the unlawful sexual relationship. This means, it cannot be constituted by isolated acts but must have a degree of continuity. If I was satisfied beyond reasonable doubt that the acts occurred as alleged by the prosecution, then this element would be proved.
The Evidence
Counsel for the prosecution called the complainant. SP explained that she began attending the accused’s wife’s, KK’s Family Day Care when she was three-years-old. She said that she would stay overnight at day care on Friday nights, but during school holidays would attend “whenever [she] wanted”.[2]
[2] TT 23.
She said that KK was the main person taking care of her at day care and the only adult home during the day, but that the accused, their two children: VK and MK, and other children who attended the Family Day Care would be there at different times. She said that KK and the accused were the only adults that stayed overnight at the house when she was there. She told the court that she did not know how she came to call the accused, “Uncle R”.
She explained that she slept in the same bedroom every night, near the front door of the premises. She said that when she first started day care, KK slept with her in the room but that this eventually stopped after a month or two.[3] SY gave evidence while looking at Exhibit P4 that she “mostly” slept on the “car mattress”. In the photo contained in P4, the mattress was standing up against the wall.
[3] TT 49-50.
SY gave evidence that the first time the accused touched her minnie, she was eight years old. She said she had been playing with her toys during the day and was wearing snowflake pyjamas. She later said she was “eight or seven” when it first happened. In cross-examination, she said she was “six or seven or eight”.[4]
[4] TT 56.
When cross-examined, SP denied that she was sleeping in MK’s room when she started day care but said that they would swap rooms on occasion. She rejected the suggestion that KK slept in her room with her for longer than a couple of months. She denied waking up at the house in the night, terrified from nightmares.[5]
[5] TT 51.
She described how the accused would come into her room at night and stand next to the bed that she was slept in. She said that while he was standing by the bed, he touched the inside of her minnie with his hand.[6] She explained that she would normally wear a nightdress or a t-shirt with pants to bed.[7] She said that her pants and knickers would be down at her knees with her t-shirt still on.[8] She agreed that ‘minnie’ was the word she used to describe her vagina.[9] She could not remember how many times this occurred, but said that it was more than once.[10] She denied when it was put to her that it happened every time she went to day care, saying that it happened “sometimes”.[11] She gave evidence that when she was touched she was on the bed. However, she gave evidence that she normally slept on the mattress.[12]
[6]    TT 34.
[7]    TT 27.
[8]    TT 34.
[9]    TT 33-34.
[10] TT 35.
[11] TT 37.
[12] TT 34.
She was asked:
QWhat would you do when you felt him do that.
AI woke up and then it felt weird.
QCan you tell me a bit more about what 'it felt weird' means.
ALike it felt uncomfortable.
QWere there any other feelings that you had.
AAngry at him for doing it.
QDid you ever say anything when you woke up.
A'Get out' and 'What are you doing?'.
QDid Robert ever say anything.
ANo.
QWhat would happen after you said 'What are you doing?' or 'Get out'.
AHe went out of the room and went back to bed.
QWhat did you do.
AGo back to bed.
She was cross‑examined on her failure to recall the accused touching her on the inside of the vagina when she spoke to police on two occasions in 2018. She agreed with Ms Powell’s suggestion that she only remembered that the accused had touched her on the inside of the vagina the week prior to the commencement of the trial.[13]
[13] TT 54-55.
She was asked:
QWhat did he put on the inside of your minnie.
AHe was like feeling it with his hand but he didn't put anything in it.
QDid he put his hand in your minnie.
AYes.
QHow often did he do that.
ASometimes - I don't know how many - how much - I don't know how many times he done it.
SP gave evidence that he would not touch her anywhere else and that the accused would not do anything with his other hand when he touched her.[14]
[14] TT 34.
She explained that she knew that it was the accused coming into her room because there was “a little light where the power point [was]” and she could “kind of see it”.[15]
[15] TT 35.
There was some confusion by SP as to what age she was when the accused started touching her minnie. At first, she told Ms Garland that she was eight before going on to say that she was seven or eight. She agreed with Ms Powell in cross‑examination that she told police she was six or seven when the offending started.[16] She said she could not be more precise than it first happening sometime during the three year period between her being six and eight.[17] She recalled that on the first occasion it happened, she was wearing snowflake pyjamas and had been playing with toys during the day beforehand.[18] Later in examination‑in‑chief she said that she could not recall the first time that the offending occurred.[19]
[16] TT 56.
[17] TT 56.
[18] TT 36.
[19] TT 37.
She was cross‑examined about her bed wetting, and agreed that she wore pull‑ups every night at day care up until she left, as she would have accidents in the night.[20] In re‑examination, she explained that KK would decide whether she wore pull‑ups or not and that on the nights she did not wear pull‑ups to bed, the accused would touch her vagina.[21]
[20] TT 48.
[21] TT 64.
SP gave evidence that she first spoke about the alleged offending to LD. She said that it was Australia Day and that there were fireworks.
She was asked by Ms Garland:
QWhat did you tell [LD].
AI told [LD] that Robert was touching my minnie and I felt uncomfortable and I should tell my mum.
QWhy did you tell [LD].
ABecause that's the first person that I saw, the first person I know of I can tell.
A conversation that she allegedly had with KK about having a sore vagina from her mum making her use ordinary soap was also put to SP which she refuted. She agreed with Ms Powell that she had watched the film ‘Scary Movie 2’ and described watching M rated movies by herself at home.[22] She said it was “kind of” scary. She disagreed that there were sex scenes in that movie. When SP was asked what her mother did on the occasions when she slept at day care, she said she was “watching movies”, before agreeing with Ms Powell that she would “go clubbing”.
[22] TT 41.
The prosecution then called SY, the mother of the complainant. SY gave evidence that when SP first started day care in 2014, she dropped her off at 10.00 am and picked her up after 3.00 pm She said that the accused would be at the house on some occasions when she attended the premises to drop off or collect SP.
She explained that after they moved to a new house in 2015, SP began sleeping at day care every Friday night, as well as Wednesday nights in the school holidays. She also said that the accused began assisting with some of the driving of SP. She said that the accused would either be with his wife and kids or on his own when he drove SP.
She said that she was not aware that SP was wearing pull‑ups at day care in 2017. She agreed that SP had night terrors and nightmares causing her to get out of bed in 2017. She said that the majority of the time she would send SP with pyjamas for day care.
LD, a close family friend of SP and SY was called by the prosecution. She recounted the night of 26 January 2018 when SP told her that the accused “touches [her] minnie”.[23] LD said she told her that it had happened since she was five years old, and that he would touch her on Fridays when she stayed over.[24] She said that when asked what SP would do when this happened, SP told her that she would sit up and say, “What are you doing? Stop it”.[25]
[23] TT 81.
[24] TT 81.
[25] TT 81-82.
When LD inquired as to whether it had happened the last time SP was at day care, she said that SP told her that it had not, but that it had happened “not long ago”.[26]
[26] TT 82.
She was asked by Ms Garland:
QDid you ask her anything about what she was wearing.
AI asked her if she had any pants on and she said 'No' or sometimes she went to bed with no pants on.
In cross‑examination, she agreed that at the end of the conversation SP had said that she wanted to go to day care as her birthday was approaching. LD was insistent that SP had described day care as “child care”. When SP gave her evidence, she was confused when Ms Powell referred to the day care as “child care”, and only understood what Ms Powell was referring to upon Ms Powell saying, “day care”.[27] [28]
[27] When SP gave her evidence, she was confused when Ms Powell referred to the day care as “child care”, and only understood what Ms Powell was referring to upon Ms Powell saying 'day care'.
[28] TT 61.
The prosecution then called LK, a coordinator at the Department of Education, Central Metro Family Day Care Scheme. Included in her portfolio was KK’s Family Day Care centre, although she did not conduct the initial inspection of the premises to approve it as a Family Day Care centre.
She confirmed that KK was the only authorised ‘educator’ in charge of the care of the children at the premises, and that the accused was therefore not an educator.[29] She said that during her routine visits, the accused would sometimes be present and would engage in conversation with her about the children enrolled in day care.
[29] TT 86.
She said that upon attending KK’s residence on 4 June 2015, she became aware that KK was sleeping in the same room as SP. KK had said this was due to SP waking up in the night anxious, screaming and crying. She said that she warned KK against this practice as it was against the departmental policy which aims to protect the children and prevent false allegations.
At some point, she said she became aware that KK wanted to change the approved bedroom for overnight care from bedroom marked two or three on Exhibit P2 to the room marked ‘lounge’. She said that at her last review of the premises on 20 September 2017, the room marked ‘lounge’ in Exhibit P2 was the approved bedroom.
Finally, there were agreed facts tendered on the prosecution case.
Agreed Facts
The Accused
1The accused was born on 5 April 1955.
2At all relevant times, the accused was married to KK.
3The accused has two children with KK, namely V and MK.
4At all relevant times, the accused resided with his family at Northfield (“the Premises”).
5As at 28 January 2018, the accused was employed on a casual basis as a book keeper.
The Premises
6An accurate layout of the premises is depicted in the map, Exhibit P2.
7On 28 January 2018 police attended and photographed the Premises. Those photographs are depicted in photograph booklet, Exhibit P4.
7A The labels under the photographs accurately describe the content of the photograph except where bedroom 1 is written. That room is the room marked “lounge” on Exhibit P2.
7B The documents appearing in photographs on pp. 9-10 were family day care documents seized by police.
The Family Day Care
8KK has continuously operated a Family Day Care Service (“the FDCS”) from the premises since 29 January 2011.
9The complainant, SP, was enrolled at, and attended, the FDCS between 21 August 2013 and 25 January 2018.
10At the time of police attendance, the room marked ‘Lounge’ in Exhibit P2 was set up as a bedroom for the purpose of providing overnight care to children from the FDCS.
11At all relevant times KK was the registered owner of a silver Mazda, station wagon, South Australian registration S306 BHS (“the Vehicle”). The vehicle had a seating capacity of 7 seats and was used for purposes associated with the FDCS.
Family Day Care Service Documents
12A table summarising SP’s attendance at the FDCS, now marked Exhibit P1, accurately represents the days and times that SP would attend the FDCS.
13The documents headed “Routine Excursion Permission Form”, now marked Exhibit P3, are documents used by KK to obtain parental permission for SP to attend places away from the premises while at the FDCS.
Excursions
14On or about 12 January 2018 KK obtained permission from SY to take SP to Semaphore Beach.
15On 12 January 2018, the accused, in company with KK, VK, MK and SP attended Semaphore Beach.
Complainant’s Residence
16Between 26 December 2012 and 29 November 2013, the complainant and her mother, SY, and her brother, AM, resided at Northfield.
17On 29 November 2013, the complainant and SY, commenced residing at Blair Athol.
18From early 2015 the complainant and SY commenced residing at Pennington.

The defence case consisted of three witnesses: the accused, his wife and his daughter.
The accused elected to give evidence. He described being born in Adelaide and completing secondary education at Woodville High School before achieving a Business Certificate in Accounting. Thereafter, he said that he has worked as an accountant or accountant bookkeeper at accounting firms. He said that he met KK in Thailand and they married approximately 20 years ago, bearing two children: VK and MK.
The accused said upon settling back in Adelaide, his wife started the Family Day Care business from their home in late 2011 or early 2012. He said that the day care would operate from 8.00 am to 6.00 pm and that would he would leave for work between 11.00 am and 11.30 am and return home between 5.30 pm and 6.30 pm.
He agreed that SP would have started at the day care on 21 August 2013. He remembers that when she started sleeping over she slept in the room marked ‘bed 3’ on Exhibit P2, before she started sleeping in the lounge at some stage. He recalls KK sleeping in the room with SP every night.[30] He thinks that KK stopped sleeping with SP around August or September of 2017.[31]
[30] TT 110.
[31] TT 110-111.
He explained that his wife, KK was entirely responsible for the care of the children, including bath time and the dressing of the children.[32] He said that apart from one occasion where he assisted KK with cleaning up SP’s vomit, he never entered SP’s room while she was sleeping.[33] He denied going into SP’s room and putting his hand on or in her vagina on any occasion.
[32] TT 113.
[33] TT 113.
He said that the only physical contact he would have with SP was when she hugged him goodnight. He said that SP was an affectionate child and that he would see her hug other adults.
He gave evidence SP was a “very difficult” child to have around and would dismantle the house.[34] He said that she would often wake in the night and make a lot of noise, which to his knowledge is why KK would sleep with her to calm her before she woke up the rest of those asleep in the house.
[34] TT 131.
In cross‑examination, he agreed that he attended excursions with KK and the children on more than four occasions.[35] He also accepted that he assisted with maintenance around the house to ensure the premises was compliant with the rules and regulations required for the Family Day Care business to operate. He denied that he offered for SP to stay over at the house more regularly. He said his wife would make such arrangements. He further denied that he and KK would offer to pick SP up but agreed they would drop her home on occasion.
[35] TT 122.
The accused’s wife, KK, was called. She gave evidence she married the accused in Australia in 2001, after meeting in Thailand. Their first child, VK was born in Thailand in 2000 and their second child, MK was born in 2010.
She agreed that after 29 August 2011, their home was a registered Family Day Care centre.[36] She said that in 2012 she was granted approval to have children stay overnight.[37]
[36] TT 139.
[37] TT 140.
She confirmed that SP was in her care at Family Day Care and described her as “really unsettled, misbehave[d]” and “messy”.[38] She also articulated how SP would be comfortable in approaching and showing affection to adult strangers when they would go to the park or other outings.[39]
[38] TT 141.
[39] TT 158.
She said that from when SP started staying over at Family Day Care in September 2013, she would sleep with SP every night in bedroom 3 as SP would cry every night and get up four to five times in the night. When SP then moved to sleeping in the ‘lounge’, KK said she continued sleeping with SP until August 2017. After August 2017, she explained how she would leave the sliding doors to the room slightly open and would get up to check on SP every two to three hours in a night. She said that she never woke up in the night to find the accused not in their bed from August 2017 onwards.[40]
[40] TT 156.
She also said that from when SP started at day care, she was wearing nappies or pull‑ups up until August 2017.
KK gave evidence of SP telling her that her minnie had not been washed in months and that her mum would not give her a bath. She said that she would talk about her minnie while she bathed her every Friday from when she could first start talking.
She said that the accused had had a conversation with her about it not being good for their children to see SP being dropped home to a different male at the house with SY every Saturday morning, but that she did not have SP any less at day care as a result of the conversation or SP’s poor behaviour, as she felt sorry for SP and said SP would tell her that day care was like her “holiday house”.[41]
[41] TT 157.
She said that the children at day care started calling her “Aunty” as her name was too long for them to pronounce. She thinks this is how the children started calling the accused “Uncle R”.
In cross‑examination, she agreed with Ms Garland that the accused was listed under ‘other adults helping’ in the ‘Family Day Care Routine Excursion Permission Form’ tendered as Exhibit P3. She agreed that the accused would attend excursions with her and the children on occasions, but insisted that it was not often as he would have to work.
Defence counsel then called the accused’s daughter, MK. She explained that she slept in the lounge up until 2016 when her and SP swapped rooms and she began sleeping in bedroom 3. She said that her mum would sleep with SP every night that SP was over. She saw the nappies that she thought SP would wear. She recalled SP telling her that she would watch movies with kissing in them.
In cross‑examination, she said that the sliding doors to the lounge that SP slept in were always left slightly open as they were unable to fully close. She said she could not remember if the accused would go on excursions with her.
Finally, one agreed fact on the defence case was provided. It was as follows:
“The Australian classification from the Australian Department of Communications and the Arts is that the movie ‘Scary Movie 2’ is rated MA with consumer advice that the film contains sexual references, adult themes and medium level coarse language. It was released on DVD in April 2002. It is agreed that the sexual references and adult themes referred to include sexual acts between men and women.”
Addresses
Ms Garland submitted written submissions on behalf of the prosecution. She submitted that the complainant was a credible and reliable witness and that I should accept her evidence while rejecting the version given by the accused, which she submitted was limited and vague.
Ms Garland submitted that the complainant’s account of events were without exaggeration or flair and went no further than what her memory permitted. She said that the complainant was clear that RK would come into the front room and stand next to her bed and that she would wake to find her pants and knickers pulled down and RK touching her minnie with his hand on the inside of her vagina, causing her to feel weird and uncomfortable. It was put that the complainant was sure that he did not touch her anywhere else, that he would not say anything to her and would stop upon her speaking to him.
It was further put that the complaint evidence of LD was consistent with the complainant’s evidence of what she told LD and the allegations.
It was Ms Garland’s submission that there are three topics of contest for me to turn my mind, to in order to determine the accused’s opportunity to offend: the length of time the complainant was sleeping in the lounge; the length of time KK was sleeping with the complainant in the lounge; and the length of time that the complainant was wearing nappies. With regard to the first topic, it was Ms Garland’s submission that the evidence established that the complainant began sleeping in the lounge at some point before 4 June 2015, when the complainant was five years old, confining the offending period from the complainant’s initial suggestion that she had slept in the lounge room since she started staying over at day care.
Regarding the second topic, Ms Garland submitted that I should accept that KK acted on the advice of LK in June 2015 that KK should not be sleeping in the same room as the complainant, and that KK therefore ceased sleeping with the complainant after that conversation, as opposed to August 2017 as KK provided in her evidence. If I am to accept KK’s evidence, however, then the offending time period is further confined to between August 2017 and 26 January 2018.
Finally, in relation to the third and last topic, Ms Garland submitted that I should indeed accept the evidence of KK that the complainant stopped wearing pull‑ups to bed in August 2017 while reconciling this with the complainant’s inconsistent evidence that she was wearing pull-ups up until she left day care by accepting that she was defensive about being made to wear pull-ups to bed at the age of seven.
Ms Garland suggested that the accused was intentionally evasive on many topics of his evidence and that he continuously attempted to minimise his involvement in the Family Day Care business. She also put that the accused misled the court when he provided that: he never walked past the complainant’s bedroom at night; did not know where she slept; and did not know what KK did with the bedroom doors at night. She suggested that the accused’s evidence was inconsistent with KK and MK’s evidence, including on the topics of: when the accused went to work; whether he watched television with the complainant; and how much physical contact the complainant and accused had within day care’s hours.
Ms Powell submitted written submissions on behalf of the accused. She submitted that the complainant’s evidence was so unreliable that the trier of fact could not be satisfied, beyond reasonable doubt, that any unlawful sexual act was engaged in by the accused with the complainant at all. She submitted that SP was an inattentive and distracted witness whose memory was demonstrably flawed and who contradicted her own evidence on a number of occasions. Ms Powell first pointed to the inconsistency of SP’s evidence that she only ever slept in the lounge and the evidence of LK that on 4 June 2015, KK was transferring approval for the overnight care room from bedroom 3 to the lounge. Further, SP’s evidence that KK only stayed with her for one or two months from when she started staying over at day care from 14 September 2013 was inconsistent with the evidence led on the prosecution case by LK that KK was sleeping with SP in the newly approved lounge room as at June 2015.
Ms Powell submitted that at first, SP agreed in cross‑examination that she used to have very bad nightmares causing her to wake up upset before she went on to give evidence that she never woke up terrified at day care but only at home. She explained that LK provided the evidence, which again contradicts SP’s evidence, that KK had reported SP having nightmares at June 2015. Further, SP gave evidence that she only wore pull‑ups at KK’s and that she wore them every night up until she left day care. Then in cross‑examination, SP said that when the accused touched her minnie she was not wearing pull‑ups. Lastly, she put that SP had conceded that she had not made the allegation of the accused touching the inside of her minnie up until the week before trial, as this was the first time she remembered this detail.
Ms Powell submitted that the evidence of LD which supports that the complainant wanted to continue going to day care directly after raising the allegations should cause doubt as to the veracity of the complaint.
Motivation of the Complainant to Lie
In this case, it has been suggested that there may be a motive for SP to lie. This is said to be as a result of an unstable home life, giving rise to a need to draw attention to herself.
The complainant’s mother, SY gave evidence that: her son was on home detention at their family home in late 2017; SY’s ex-boyfriend - the subject of an Intervention Order in respect of SY and the complainant was staying overnight; and the police were attending the premises as a result of arguments with SY and the ex-boyfriend. SP gave evidence that her mother would go “clubbing”. This, it is submitted, is suggestive of an unstable home life and motive for SP to make the allegation against the accused in an attempt to achieve the attention of her mother.
Evidence of SP watching M rated movies, such as ‘Scary Movie 2’ without restriction was put as a possible source of the complainant’s knowledge of the content of the allegation.
In assessing the evidence in this case, I must consider the possibility of a motive for SP to lie. If she has fabricated her allegations, for any reason, then this will result in the accused being acquitted. However, even if I reject the alleged motive of the complainant to lie, that does not mean that I would necessarily find that she has been truthful. The absence of a motive does not strengthen the prosecution case; it is neutral. Crucially, it is not for the accused to provide a motive for the complainant to lie. At all times, the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy me beyond reasonable doubt that the complainant was telling the truth.
Initial Complaint
There was evidence led of an initial complaint made by the complainant to her mother’s friend, LD, shortly after the final alleged incident. I can use this evidence to explain how the offending first came to light. I may also use this evidence to judge whether the making of the complaint demonstrates consistency of conduct on the part of the complainant. Consistency of conduct refers to both consistency in making the complaint when it would be expected to be made, as well as consistency between the wording of the complainant and the conduct alleged.[42] I may not use this evidence to demonstrate the truth of what was reported to LD.
[42] R v J, JA [2009] SASC 401, [95] per Duggan J.
Discussion
Section 50 of the Act requires proof that two or more unlawful sexual acts occurred over the charged period.[43] In relation to the issue of two or more unlawful sexual acts, I do not accept the accused’s argument that the prosecution case could not make out the fourth element of the charged offence on the evidence presented in this case.
[43] Criminal Law Consolidation Act 1935 (SA).
The act of touching in or on the vagina more than once[44] is capable of satisfying this requirement. The evidence of SP makes it plain that the accused touched her on the vagina on more than one occasion. Each time he did so constitutes a separate sexual act. The evidence is clear as to the circumstances in which this was alleged to occur.[45] In Hamra[46], the court considered a similar submission.
“The basic difficulty for the appellant's submission is the plain terms of s 50(4). That sub-section outlines the required particularity of an information charging a person with an offence under s 50(1). It modifies the common law by providing that although the information must allege a course of conduct consisting of acts of sexual exploitation it need not "identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred" (s 50(4)(b)(ii)). The sub-section requires the jury to find the same two or more acts committed over a period of three or more days in order for the accused to be convicted but, provided that two or more distinct acts can be identified, it does not require the occasions of those acts to be particularised other than as to the period of the acts and the conduct constituting the acts. In this respect, s 50(4)(b)(ii) has the same effect as its predecessor provision, which, in s 74(4), did not require particulars to "differentiate the circumstances of commission of each offence".[47]
“An example which illustrates this point is evidence of a complainant that an act of sexual exploitation was committed every day over a two week period. The appellant submitted that such evidence would be insufficient because, even if the jury (or judge in a trial by judge alone) were to conclude that those acts had occurred in that way, this would invite "deductive reasoning", "rather than identifying an occasion and determining what is the evidence to prove that occasion". In other words, it is impermissible to use logic to deduce from the occurrence of acts of sexual exploitation every day for two weeks that two or more acts must have occurred over a period of "not less than 3 days". The submission cannot be accepted. Neither the common law nor s 50 of the Criminal Law Consolidation Act precludes a judge or jury from deducing a conclusion by simple and obvious logic, provided, of course, that the members of the jury reach the conclusion as to the same two or more acts unanimously, or by a statutory majority where a majority verdict is permitted.”[48]
“As to (ii), this submission is based on an incorrect understanding of s 50. As explained above, the Crown was not required to provide particulars, or prove the s 50 offence, in a way that differentiated the circumstances of each act of sexual exploitation. It was open to conclude that there were two or more acts of sexual exploitation committed if, for instance, the judge concluded beyond reasonable doubt that the appellant committed the bedroom two acts of sexual exploitation every time he stayed over, which was nearly every weekend for months, and possibly years, from when B was 13 or possibly 14.”[49]
[44] TT 35.
[45] Hamra v The Queen [2017] HCA 38.
[46] Ibid.
[47] Hamra v The Queen [2017] HCA 38, [27].
[48] Hamra v The Queen [2017] HCA 38, [28].
[49] Hamra v The Queen [2017] HCA 38, [33].
I am not required to be satisfied of the particulars of any unlawful sexual act as I would need to be, if the acts were charged as separate offences, but must be satisfied as to the general nature or character of those acts.[50] The prosecution evidence has set out the general nature of the unlawful sexual acts, of inserting finger or fingers into the vagina and touching of the vagina, and that it occurred on more than one occasion. However, while the general nature of the acts has been made out, the vagueness of the description of the offending causes me to doubt the reliability of SP’s evidence.
[50] Criminal Law Consolidation Act 1935 (SA).
This case rests entirely on the reliability and the credibility of the complainant. Without an acceptance of her version of events in court, these charges cannot be proven to the requisite standard. In assessing the reliability of the witness, I have carefully assessed her evidence, noting that it is unsworn evidence. There are many aspects of the evidence given by SP that are reliable. I have taken into account that SP is a young person and made allowances for that fact. I have also made allowance for the fact that she is a vulnerable person. This of itself, does not render her or her evidence unreliable. It is clear from her evidence that SP does have an accurate recall of some events and is able to articulate these events. I do not consider that she is being deceitful or deliberately untruthful. However, when an assessment is made of the crucial aspects of the evidence that give rise to the charge, I have been unable to accept her evidence to an extent that excludes a reasonable doubt for the following reasons.
I found SP to be an inattentive and distracted witness. Even taking into consideration her young age, she was notably unsettled and preoccupied by the people around her and objects in front of her while giving her evidence. There was no explanation for this behaviour. While I accept that there is a danger in placing too much weight upon the demeanour of a witness who is giving evidence in a case such as this, in an unfamiliar and often stressful environment, it is nevertheless a factor in assessing her evidence. I was troubled in this matter by the complainant’s need for affirmation, demonstrated during the course of her evidence by her looking, apparently for confirmation, to those in the witness suite. This is not explained by her young age or any other factor and has caused me disquiet in relation to her reliability

Upon assessing her evidence, I found her account of events was inconsistent on a number of key topics, she often gave answers with little detail and she was unable to provide much assistance at all with any sort of timeline.
The complainant gave three different answers for how old she was when the offending started in her evidence. She was unable to refine the commencement date within the three year period from January 2016 to December 2018.
She also could not provide any insight into the frequency of the alleged offending. Other than saying that it happened more than once, but less than every time that she attended day care, she could not remember how many times and was not pressed to provide an estimate figure.
The delay in the recalling of the detail of the touching inside the complainant’s vagina further calls into question the reliability of the complainant’s evidence. In addition to this, her evidence of the detail she gave in relation to this aspect is inconsistent with the events having occurred in the manner as particularised. In particular, I note that she provided no further description than it feeling “weird” and “uncomfortable”. She does not explain any pain or further emotion that might be associated with such an experience.
I do accept that she complained to LD on the 26^th of January 20178, as she described.
I accept the evidence given by LD as truthful and reliable. The account given to LD by the complainant is broadly consistent with the other evidence given in court. I accept that although there are differences, they are not significant and I am also satisfied that they are consistent with both particularised acts occurring.
However, the observations made by Ms Powell as to the demeanour of the complainant in her evidence are also evident in her complaint to LD. It is possible that the complaint was made as an attempt to gain the attention of LD, without the consequences of her statement being fully considered and that she persisted in telling this version of events to the police and in court. This may account for the complainant’s level of distraction and vagueness. I cannot be definitive on this however. I am not prepared to exclude it as a reasonable possibility.
I do not find it plausible that SP was sleeping in the lounge when she first commenced staying overnight at day care in September 2013. I am persuaded by the evidence of the prosecution witness, LK who had an obligation in her role as coordinator at the Department of Education, Central Metro Family Day Care Scheme to record the business and running of the Family Day Care services allocated to her, and who took contemporaneous notes of her attendances at the accused’s premises.
For the same reason, I do not find it plausible that KK only slept in the same room as SP for a month or two after her commencing overnight stays at day care. I am persuaded by KK’s evidence that she slept in the complainant’s room until August 2017. It was against the interests of KK, as the wife of the accused to provide a timeframe between August 2017 and 26 January 2018 that provided an opportunity for potential offending. For the same reason, I accept the evidence of KK that SP was wearing pull‑ups to bed every night up until August 2017. The fact that SP was unable to recall or unwilling to give evidence about when she was or was not wearing pull‑ups has also caused me concern in relation to her reliability.
I have concerns in relation to the nocturnal behaviour of SP. In all likelihood, she suffers from nightmares that cause her to wake in fright. Why she does this is not clear, however, it does leave me with a feeling of unease in relation to the veracity of her allegations and leave open the possibility that the events of abuse were a part of her nightmares rather than based in reality. If this is so then she may genuinely believe that they did occur.
When considering the timeframe between August 2017 and 26 January 2018 when all the evidence in this case that I accept indicates that the complainant was sleeping in the lounge, alone and without pull‑ups – consistent with the complainant’s account of the offending – I am not satisfied, beyond reasonable doubt that the accused entered the bedroom of the accused, stood by her bed and touched her outside or inside the vagina during this period or at any time.
It follows from what I have said that I accept there is a reasonable possibility that the accused did not sexually interfere with the complainant. I accept his evidence to that extent. Where his evidence is in conflict with the evidence of KK and MK I prefer their evidence. The evidence presented on the defence case together with the areas of concern in respect of the reliability of the complainant have left me with a reasonable doubt that any unlawful sexual acts were committed by the accused.
Conclusion
A finding of guilt can only be made when the prosecution presents evidence in proof of an offence that satisfies me to the extent that excludes a reasonable doubt. That is a very high burden but one that exists in our criminal legal system for very good reason. I am unable to reject the account given by the accused, and therefore, the prosecution has failed to satisfy me of the accused’s guilt beyond a reasonable doubt. Consequently, I find the accused not guilty of the offence of maintaining an unlawful sexual relationship with a child.