R v L, AK

[2024] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v L, AK

Criminal Trial by Judge Alone

[2024] SADC 106

Reasons for the Verdict of his Honour Judge Allen 

12 September 2024

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

The accused elected for trial by judge alone on one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that between 3 February 2001 and 3 February 2004, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with or towards her namely: (a) touching her vagina on more than one occasion; (b) performing an act of cunnilingus upon her on more than one occasion; (c) causing her to perform an act of fellatio upon him on more than one occasion; and (d) inserting his penis into her vagina on more than one occasion.

Verdict: Not Guilty

Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 34M, 34CB, referred to.
Sexton v The Queen [2022] SASCA 73; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98; Murray v The Queen (2002) 211 CLR 193, considered.

R v L, AK
[2024] SADC 106

Criminal

Overview

1. On an Information dated 23 July 2021, [L, AK] is charged 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

   [L, AK] between the 3^rd day of February 2001 and the 3^rd day of February 2004 at [the complainant’s home-town] and other places maintained an unlawful sexual relationship with [JR], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [JR] namely:

   (a)touching her vagina on more than one occasion.

   (b)performing an act of cunnilingus upon her on more than one occasion;

   (c)causing her to perform an act of fellatio upon him on more than one occasion; and

   (d)inserting his penis in her vagina on more than one occasion.

   …

2. The accused elected for trial by judge alone.

   Elements of the offence

   Maintaining an unlawful sexual relationship with a child

3. The offence of maintaining an unlawful sexual relationship with a child has four elements:

   1.      the accused knowingly maintained a relationship with [JR] during the period in which the particularised unlawful sexual acts occurred;

   2.      the accused was an adult during the period in which the particularised unlawful sexual acts occurred;

   3.      the complainant, [JR], was a child and under the age of 17 years during the period in which the particularised unlawful sexual acts occurred; and

   4.      the accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant, [JR].

4. Elements one, two, and three were not in dispute at trial and are established beyond reasonable doubt. Element four was the issue at trial. The question is whether the prosecution has proved beyond reasonable doubt that the accused intentionally committed two or more of the particularised unlawful sexual acts against the complainant.

5. The elements of the relevant offences arising from the particulars are:

   Indecent assault

   1.      there must be an assault, a touching would suffice;

   2.      the assault must be deliberate as opposed to accidental;

   3.      the assault must be unlawful, there must be no lawful excuse for the assault;

   4.      the assault must be indecent according to contemporary community standards;

   5.      the assault must be committed by the accused with a sexual purpose or intent;

   6.      the complainant was under 17 years of age at the time of the assault.

6. Consent is no defence to this charge; a child under 17 years is incapable in law of consenting to sexual activity.

   Unlawful sexual intercourse

   1.      the accused had sexual intercourse with the complainant. For the purposes of this trial sexual intercourse includes the accused performing an act of cunnilingus upon [JR], the accused causing [JR] to perform an act of fellatio upon him and the accused inserting his penis into [JR]’s vagina;

   2.      the complainant was under 17 years at the time of the intercourse.

7. Again, consent is no defence to this charge; a child is incapable in law of consenting to sexual activity.

   Preliminary legal directions

8. Having conducted a trial by judge alone, it is unnecessary to set out the various standard directions that would be given to a jury. Nonetheless, I remind myself of the following principles.

9. The standard of proof is beyond reasonable doubt. The prosecution bears the burden of proof. The accused is presumed to be innocent unless and until the evidence satisfies me that each element of the offence has been proven beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt, or to demonstrate that the accused is probably guilty. The accused is not required to prove that he did not commit the offence with which he is charged.

10. The complainant, [JR], gave evidence with special arrangements in place. I must not allow the fact of these arrangements to influence the weight that I give to the evidence of each particular witness. I must not draw an adverse inference against the accused as a result of the fact that these arrangements were in place.

11. The accused did not give evidence. The accused’s silence cannot be used against him. I must not draw any adverse inference based on his choice not to give evidence. I must not treat his silence as an admission, nor must I use it to fill gaps in the prosecution case.

    Brief background

12. The prosecution case is that [JR] and the accused came into contact with each other in unusual circumstances when she was in year 10 at school aged 14 or 15,[1] when a phone call placed by the complainant to a friend inexplicably diverted to a then unknown male, who engaged in a conversation with [JR].

    [1]     T14.

13. [JR] and the unknown male then continued to communicate with each other, leading to [JR] and the unknown male meeting in person about one week later at the end of her street at night, which involved the complainant getting into the unknown male’s car, before being driven to a nearby sports ground at which time and place an act of penile/vaginal intercourse took place on the ground next to the vehicle.

14. On the prosecution case, the unknown male was the accused and this represented the commencement of an episode of unlawful sexual behaviour perpetrated by the accused on a multiplicity of occasions across a number of locations.

    Summary of evidence

    Examination-in-chief of complainant

15. [JR] was born on 3 February 1987. She grew up in the Murray Mallee.

    Living arrangements and home life of complainant

16. Throughout her evidence-in-chief, [JR] discussed several premises. By way of overview, they are as follows:

    1.      Family house;

    2.      [N] and [B] homestay whilst attending Unity College (weekdays only);

    3.      [JG]’s house;

    4.      Lady from church;

    5.      Granny flat;

    6.      [JU]’s house; and

    7.      Jeffrey Street Address.

    Family house

17. [JR] described her homelife as chaotic and scary. Due to this, the accused complimented her, telling her that she was ‘smart and pretty’ and was ‘very memorable’.[2]

    [2]     T35.25-27.

18. [JR] elaborated on her homelife:

    … my home life was absolutely shocking. So my father was a severe domestic violence perpetrator and there was domestic violence occurring every single night. One time I heard him raping my mother and it was all very distressing for me. So I would often do things like try to borrow my sister’s CD player so I could drown out the signs of the arguing but sometimes my mum wanted to hop in bed with me which was also distressing. There was involvement with the school and my mum’s friends as well who were all aware of the situation. Also I tried to report it to the police myself. My mum had also tried to end her own life so what had happened, she was having a fight with my father and I heard her saying ‘I am going to the shed to hang myself,’ and my father just laughed at her. Then I went outside to check that she was okay and she was preparing to hang herself. Then he called the police but he continue to taunt her saying ‘It is a crime to commit suicide’.[3]

    [3]     T35.34-T36.13.

19. [JR] stated that her home was a very unsafe place to be. She alleged she was regularly physically assaulted. Her siblings also resided there.

    [N] and [B] homestay

20. When [JR] attended Unity College, she resided in Murray Bridge. During this time, [JR] lived with an elderly couple named [N] and [B] during the week. [AB] also resided there. This type of arrangement was described as a homestay environment which was organised through the school. From Friday on, [JR] would return home and stay with her parents.[4]

    [JG]’s house

    [4]     T12.10-31.

21. Following living with [N] and [B], [JR] moved into [JG]’s home at the start of year 11.[5]

    [5]     T37.30-32.

22. [JR] was living with [JG] and [K] ([K] was [JG]’s husband), and she believed she lived there for under six months around the start of year 11.[6] Later in examination-in-chief, [JR] explained that the school discovered the reality of [JR]’s difficult homelife, and as a result [JG] and [K] were also made aware.[7] 

    [6]     T54.38; T55.4.

    [7]     T53.25-28.

23. It was around this time, the accused and [JR] went to Big-W and purchased a sparkly G-string; [JR] remembered this clearly because she was extremely embarrassed to hang them on the line at [JG] and [K]’s house.[8] She became aware that her situation was negatively impacting [JG], and that there were issues with her living arrangements.

    Staying with lady from church

    [8]     T53.32-38.

24. After living with [JG], [JR] said she went and stayed with a lady through the church. At this time, she was generally upset about how her parents and the accused treated her.[9] She did not stay long with the lady from church as she said she felt uncomfortable there and believed that she was a financial burden.[10] She only stayed at the church lady’s house for a brief period; a matter of weeks.[11]

    Granny flat

    [9]     T54.25-31.

    [10]   T55.6-13.

    [11]   T56.5.

25. Shortly after living with the lady from church, [JR] said she moved out to a granny flat in Murray Bridge.[12] [JR] confirmed that there was a main residence on the property as well as the granny flat. A lady called [JB] lived there and ran a home day care centre out of the house.[13] She knew of [JB]’s daughter, [C], who had previously lived in the granny flat prior to leaving for university.[14]

    [12]   T53.18.

    [13]   T55.25-27.

    [14]   T55.37-56.1.

26. [JR] estimated that she stayed two to three months at the granny flat.[15]

    [15]   T71.13-15.

27. [JR] marked the map and outlined a floor plan of the granny flat. This included the laptop and computer set up, as well as the locations that she had sex with the accused in the flat.[16]

    [JU]’s house

    [16]   T60.37.

28. [JR] stayed with [JU]’s family for a matter of weeks.[17] One day after telling [JU] about the situation with the accused (which is discussed further below), [JR] returned to the granny flat and found it locked. At the time she believed she had been evicted, and she proceeded to crawl through the window to collect some of her belongings. She said she then purposely spilt milk all over the doormat as she left. She called [JU] and was upset by the situation.[18]

    [17]   T70.29.

    [18]   T70.10-15.

29. From this point, she stayed with [JU]’s family. [JR] reiterated that she found [JU]’s mother [S] to be supportive and kind; although she was not aware of the particulars of what had been happening with the accused.[19] Whilst staying with [JU], [JR] said she continued to speak with the accused, and she said he helped her to find a unit to live in.[20]

    Jeffrey Street address

    [19]   T70.18-24.

    [20]   T70.31-37.

30. [JR] was able to secure this address with the accused’s assistance. The accused dealt with Mason’s Real Estate and signed a lease for her, acting as her guarantor. She said as she was only 16 at the time; she was not old enough to sign it on her own.[21] She believed that she moved into this address at the end of a school year but could not say which year.[22]

    [21]   T71.2-6.

    [22]   T71.20-22.

31. [JR] said that she was pulling away from the accused at this point. Notwithstanding this, he helped her by purchasing furniture, crockery, and cutlery. She recalled him assisting her moving in, using a trailer and that he scratched the back of the bed posts in the process.[23] 

    [23]   T71.26-72.1.

32. A few weeks after moving in, [JU] joined her at the address and moved in with her; she said she did not want to be alone ever.[24] She lived in the Jeffrey Street unit for around nine months.[25]

    Meeting the accused

    [24]   T72.13-23.

    [25]   T72.38-T73.1-2.

33. According to the complainant, she met the accused after calling her friend, [TM], and her phone diverted to his number.[26] [JR] said she was in year 10 at school at the time of this phone call.[27]

    [26]   T13.7-9.

    [27]   T14.9-11.

34. [TM] was a friend of [JR]’s from school. When further questioned as to what [JR] meant by the phone ‘diverting’, she said [TM]’s phone rang out and then diverted to another mobile. As soon as the call diverted, [JR] could hear someone breathing on the line and thought someone answered the phone. She initially thought it was [TM] and as such, said hello. A male voice responded to this and said something to the effect of ‘well hello there’.[28] [JR] did not respond to this. The male voice then said, ‘well this is a mystery’. [JR] said she felt shocked, but nonetheless continued speaking to the male voice and did not hang up. She was not able to provide an explanation as to why she did this, beyond that she felt shocked. The two spoke for 40 minutes on the phone.[29] [JR] recalled particular passages of the conversation:

    ‘I remember saying to him ‘I’m only 14 or 15 – ‘, I can’t remember how old it was ‘- is that a problem?’, and he said ‘No’.[30]

    [28]   T13.24-30.

    [29]   T13.35-38.

    [30]   T14.4-6.

35. [JR] said that the male on the phone said his name was the accused. She also recalled that the male said he was 28 years of age.[31] Following this conversation, both [JR] and the accused made plans to meet each other in person.[32] From this point, there was ongoing communication between the accused and [JR].[33] [JR] said she met up with the accused around a week after this initial phone call.[34]

    [31]   T14.26-28.

    [32]   T14.32-38.

    [33]   T15.1-3.

    [34]   T15.6-7.

36. [JR] said she became aware of the accused’s surname on one of the first few occasions she spoke with him, and that he told her his surname was [L], the surname of the accused.[35] [JR] described the accused. She said he was relatively tall, with a fairly olive complexion and broad shoulders.[36]

    Allegations of sexual offending

    [35]   T28.29-34.

    [36]   T15.35-36.

37. [JR] said there was a pattern to the accused’s behaviour. Typically, the accused would initiate sex by touching her vagina under her underwear.[37]

    [37]   T74.9-13.

38. She said the accused enjoyed performing oral sex on her, and that it happened frequently. She was not able to remember specific incidents beyond what she relayed to the Court; she said that each of the incidents blurred into one incident.[38]

    [38]   T74.17-18.

39. [JR] said the accused often wanted her to perform oral sex on him, she said this happened ‘pretty much every time.’[39]

    [39]   T74.32-33.

40. When the accused would use the webcam to film them having sex, he would refer to her as ‘Tara’ and himself as ‘Flynn’.[40]

    First incident (sports oval)

    [40]   T75.30-34.

41. The first alleged sexual act perpetrated on [JR] occurred on the first occasion where she met the accused in person. [JR] said the accused picked her up on a Saturday at 7:30pm or 8:00pm at the end of her parents’ street.[41] They then went to a local sports complex. [JR] recalled that it was dark. [JR] said the accused drove a green ute with a tray top.[42]

    [41]   T15.9-11.

    [42]   T15.29-30.

42. Once the accused picked [JR] up, they drove to the sports oval and had sex in the car.[43] She said that it would have been a 5-minute drive and that she sat in the passenger seat.[44] Upon arriving to the oval, [JR] said the accused touched her vagina through her underwear (whilst still in the car) and laid down a towel on the ground.[45] The touching of the vagina occurred before the towel was laid on the ground.[46] She said the accused first began rubbing her vagina from the outside of the underwear, and this occurred only whilst in the car. This lasted for 5 to 10 minutes. She could not recall whether the accused said anything.

    [43]   T15.38-T16.1.

    [44]   T16.7.

    [45]   T16.10-11.

    [46]   T16.15.

43. After talking about laying on the towel, [JR] described the following events ‘he had sex with me in missionary style, so by sex I mean he put his penis inside my vagina and he ejaculated in me’.[47]

    [47]   T17.1-3.

44. [JR] said this occurred whilst they were laying on the towel. She said she was laying down flat on her back and her legs were spread flat on the ground.[48]

    [48]   T17.11-13.

45. [JR] was not able to say what she was wearing on this occasion. She recalled being in a state of undress; the bottom half of her clothing was off, but her top remained on.[49]

    [49]   T17.21.

46. In relation to the complainant’s state of dress, she said that the accused touched her vagina at the same time as the clothing was removed, prior to the sexual intercourse occurring.[50] [JR] was further questioned about how the accused touched her vagina. She stated that the accused touched her clitoris and around the vagina as well. [JR] agreed that this touching occurred before the penis-vagina intercourse.

    [50]   T17.27.

47. The sexual incident came to an end when the accused ejaculated. [JR] said they both returned to the car.[51] [JR] put her bottom half of her clothing on first before then entering the car and sitting in the passenger seat.

    [51]   T28.16-17.

48. [JR] said that the accused drove her home, but clarified that he dropped her to the end of the street. She then clarified that she meant the back end of the street. [JR] did not recall anything that was discussed whilst driving back. [JR] said she continued to talk to the accused after this first incident and that they would continue to talk to each other via phone ‘pretty much’ every night.[52] This was the only occasion where an alleged sexual act occurred at the sports oval.

    Second incident (Baan Hill)

    [52]   T29.5.

49. After the first alleged incident, [JR] met up with the accused again. During the second incident, they went to Baan Hill.[53] She described this area as an isolated, deserted campsite, that was quite barren.[54] [JR] said she went to this campsite with the accused a week or two after the first incident at the sports oval. [JR] said that they attended Baan Hill approximately four times.[55] 

    [53]   T29.16.

    [54]   T29.23-26.

    [55]   T29.32.

50. [JR] described this incident as an awful experience.[56] She described the incident as follows:

    Yep. So I don’t recall what he said exactly but he said something about how he wanted to touch my vagina without me closing my legs and so he tied my hands up in a star shape above my head and then bound my feet open.[57]

    [56]   T31.10.

    [57]   T31.13-16.

51. [JR] clarified that the star shape involved her hands open as though doing a jumping jack.[58] Her arms were separated and above her head. [JR] said this took place in the back of the car in the tray.[59] [JR] said that the accused used rope to tie her hands up. [JR] said that her feet were also tied up and spread apart. She could not recall where they were tied to.[60] [JR] said that she was naked as she was being tied up.

    [58]   T31.19-21.

    [59]   T31.28.

    [60]   T31.37.

1. [JR] explained that the accused said he was concerned that she would close her legs if he made attempts to touch her vagina, which was why he chose to tie her up.[61]

   [61]   T32.16-17.

2. Whilst [JR] was tied up, she said that she was facing up.[62] After being tied up, [JR] said they had sex and clarified that this was penis-vagina intercourse.[63] She said she was tied up for the entirety of the sexual encounter. She recalled that the accused was also naked, and the sexual activity ended when he ejaculated.[64]

   [62]   T32.24.

   [63]   T32.26.

   [64]   T33.6.

3. [JR] said she would stay overnight each time they visited Baan Hill[65] and would sleep in the back of the tray-top ute. [JR] said that the ute ‘had like a soft thing to sleep on … it might have been more of a blow-up mattress rather than actual mattress and [there was] some pillows and blankets’.[66]

   [65]   T33.29.

   [66]   T33.33-35.

4. [JR] confirmed that she slept the night on the second occasion.[67]

   Third incident (Baan Hill – oral sex)

   [67]   T33.38.

5. [JR] recalled a second incident where the accused wanted her to sit on his face so that he could perform oral sex. She described this incident in the following way:

   So his head was facing the black back of the tray-top Ute and I was holding on and I didn’t want to look down at him so I was looking around. [68]

   [68]   T34.6-10.

6. [JR] said that she was in the tray of the ute and the accused’s head was against the back part of the ute.[69] [JR] confirmed this was near the cabin.[70] She confirmed that the accused was laying down. She said that she did sit on the accused’s face. She was not wearing any clothes. [JR] was then asked what she meant by oral sex. She clarified that this meant that ‘he used his tongue on my clitoris and vagina.’[71]

   [69]   T34.13-16.

   [70]   T34.18-19.

   [71]   T34.32.

7. She confirmed that she stayed the night at Baan Hill on this occasion.[72]

   Multiple incidents at the accused’s mother’s house

   [72]   T35.2.

8. The complainant alleged that multiple sexual incidents occurred at the accused’s mother’s house. [JR] explained that it was difficult to put into sequence the events because there were so many incidents involving the accused that occurred at his mother’s house.[73]

   [73]   T42.29-33.

9. [JR] said that she was aware the house was the accused’s mother’s because he told her as much. She said the accused told her his mother did not want him to bring her to the house due to her age.[74] It was after this conversation that [JR] ceased visiting the house.[75]

   First visit to the house

   [74]   T45.20-25.

   [75]   T45.28-30.

10. This incident occurred at the time the complainant was attending Unity College.[76]

    [76]   T37.25.

11. There was an occasion when [JR]’ mother attempted suicide. [JR] was assaulted on this occasion and was bleeding from her head. She advised the accused of this and he came to pick her up.

12. Upon the accused collecting her, they drove to his mother’s house.[77] This was the first time [JR] had been to the mother’s house. At this point in time, [JR] said she had been talking to the accused everyday over the phone. [JR] said it took roughly two-and-a-half hours to drive from her home-town to the accused’s mother’s house.[78]

    [77]   T37.22.

    [78]   T40.4-5.

13. She said the house was located behind Blackwood High School and described this as a prominent memory because she currently drives past the area on the way to collect her daughter from Crafers and is reminded of this as she drives past.[79] At the time, the accused also told her that his mother’s house was near Blackwood High School.[80]

    [79]   T41.8-17.

    [80]   T41.24.

14. When [JR] and the accused arrived at the house they went straight to his bedroom and had sex.[81] [JR] did not recall seeing anyone at the premises.[82] She found it difficult to see much of the house at the time as it was dark and they went straight to the bedroom.[83] 

    Shaving vagina incident (uncharged)

    [81]   T37.36.

    [82]   T40.13.

    [83]   T40.16-18.

15. [JR] said on one occasion the accused dry shaved her vagina. She said this incident was prominent in her mind because she had never shaved her vagina before, and she said it had never occurred to her to do so.[84] She recalled having sore ingrown hairs and it being painful and itchy for a few days afterwards.

    [84]   T42.38-T43.6.

16. She confirmed that this occurred on the chair marked on the floor plan in Exhibit P2.[85] She could not recall him saying anything during this act.[86]

    [85]   T43.11.

    [86]   T43.18.

17. This is an uncharged allegation.

    First filming incident

18. [JR] recalled an occasion where she had ‘doggie style’ sex with the accused. This incident occurred in the bedroom again, on the bed.[87] She explained that this involved her on all-fours with the accused penetrating her vagina with his penis from behind.[88]

    [87]   T43.26.

    [88]   T43.21-23.

19. She said she was able to remember this incident because it was the first time that the accused filmed her and that he was pulling her hair.[89] She said she became aware the accused was filming her because he told her as much. She said he used a white and blue webcam that was set up above the computer (as opposed to a laptop) to film her.[90] She described the webcam as a circular shape that had a slightly curved base.[91] She could also see that people were typing.[92]

    [89]   T43.32-33.

    [90]   T44.1-6.

    [91]   T44.8-10.

    [92]   T43.

20. She later clarified that she had seen messages popping up on the screen, although she could not read the messages, and that the accused had told her that people in Adelaide were watching.[93]

    Incidents in hotels

    [93]   T44.23-25.

21. After the accused ceased taking her to his mother’s house, [JR] said he took her to hotels in the city.[94] [JR] said she would typically remain in the car whilst he checked in to the hotel. She described the hotels as being fancy with multiple floors.[95] She was not able to recall any of the names of the hotels and justified this as being from the country, she was not familiar with hotels in Adelaide.[96]  

    [94]   T45.33.

    [95]   T46.8-11.

    [96]   T46.35-37.

22. [JR] said that each of the four or five times[97] she went to a hotel with the accused they had sex.[98] After he moved to an address in Meadows, they stopped visiting hotels.[99]

    Incidents at the accused’s house at Meadows

    [97]   T47.11.

    [98]   T47.6-8.

    [99]   T47.14-15.

23. At the point that the accused moved into his own place in Meadows, [JR] believed she was living at [JG] and [K]’s or the granny flat. [JR] said she would have sex with the accused at this address, and that they would have a sexual interaction every time she visited his house.[100] She confirmed that no one else lived at this address.[101] She would frequent this address roughly every second weekend.[102] She was not able to provide an estimate of how many times she visited the house.[103]

    [100] T52.37.

    [101] T47.31.

    [102] T47.34-35.

    [103] T53.3.

24. [JR] was shown Exhibit P3 – the hand-drawn map of the Meadows property.

25. She confirmed that in the accused’s bedroom there was a bed located in the top right corner of the room. The rectangle she had drawn on the map indicated a desk and computer. She said that it was this computer that she was filmed from.[104] She said she was filmed using the aforementioned webcam.[105]

    [104] T49.36-37.

    [105] T50.1.

26. In relation to the accused’s room, [JR] recalled there being a mink-type blanket with a large white cat print drawing on it with a black border.[106] She remembered this because it was the only place she would be warm enough to fall asleep in the house.[107] [JR] said she had seen this blanket since attending the Meadows address after conducting google searches. She said it made her upset to see.[108] She confirmed that there was a photo of the blanket in Exhibit P4, the bundle of three photographs from google search. Further, she confirmed that the photos depicted his bedroom, with a bed and the mink-blanket on it.

    [106] T50.33-36.

    [107] T50.33-36.

    [108] T51.23-31.

27. She believed she googled his address around August of last year.[109] She confirmed that the blanket was also at the accused’s mother’s house (as well as the Meadows address). Later in examination-in-chief, [JR] said that there were several incidents where sexual intercourse took place on top of the mink blanket, and that she hoped that the mink blanket may have featured in a video, which she stated would be useful for police investigations.[110]

    Incidents at the granny flat

    1.    Background

    [109] T52.25.

    [110] T61.34-62.1-4.

28. When [JR] moved into the granny flat, she no longer wished to visit the accused’s house. She said he could not understand why she no longer wished to visit. She remembered an occasion where the accused dropped her flowers at the granny flat.[111] Whilst the accused did not have a key, she usually left the premises opened and unlocked as [JB] was at home working in the day centre that operated out of the primary residence.[112] She did not live for very long at the granny flat, she estimated it was only a few months[113] as she was struggling to live independently.[114]

    [111] T56.33

    [112] T56.36

    [113] T69.6

    [114] T68.27-28

29. [JR] said the first time the accused attempted to visit the granny flat, he told her that the lady who lived in the front of the house told him to fuck off.[115]

    [115] T58.6-7

30. There were two incidents that [JR] was able to clearly recall in relation to the accused visiting the granny flat. She said these were the main two incidents she recalled, as they were the most degrading, although she said she believed there were more incidents, but she was unable to recall the specifics of them.[116]

    2.    Oral sex incident

    [116] T62.16-20; T62.24

31. [JR] remembered performing oral sex on her knees in the alcove of the bedroom in the granny flat. She recalled feeling the accused’s penis at the back of her throat and choking, this caused her to retract her head backwards which led to a trail of her saliva extending from her mouth to his penis. She recalled the accused saying, ‘this would look good on camera’.[117] This incident was not filmed.

    3.    Filming close-up of ejaculation

    [117] T58.11-16

32. The second occasion involved [JR] and the accused having missionary style sex on the lounge room floor of the granny flat. She recalled that he ejaculated into her vagina and wanted to film a close up of this act using the web cam.[118] This was filmed using [JR]’s laptop webcam (which was attached to the laptop), although she was not able to describe the webcam.[119] The accused set up this recording, and filmed it by picking up the laptop; [JR] said she would never personally do that herself.[120] She recalled being shocked at seeing the footage.[121] She said she assumed that the accused was showing people via the webcam because that is what he had done previously.[122]

    Taxi incident

    [118] T58.17-20.

    [119] T59.3-5.

    [120] T5912-13.

    [121] T5917-19.

    [122] T61.24-25.

33. [JR] said that the accused was a taxi driver. He used to tell her how much money he earned, and wondered how he was able to afford the Meadows property on his wage.[123]

    [123] T62.27-29.

34. On one occasion during the day on a weekend, the accused picked her up and they had sex in the taxi; she was mortified by this and did not want to do it.[124] [JR] was concerned there would be cameras and that employers would see her having sex.[125] When they had sex, she said she was laying long-ways along the back seat on the passenger side and had her legs up against the other seats in the back of the car. She was sitting slightly upwards, and the accused was on top of her.[126] She could not recall what clothes she was wearing.[127] She believed this incident occurred not far out of her home-town, around five or 10 minutes of driving on the main road that leads out her home-town.[128]

    [124] T63.37.

    [125] T63.1-3.

    [126] T63.12-22.

    [127] T63.24.

    [128] T63.31-35.

35. She said there was only one incident where they had sex in the taxi, and he did not pick her up in the taxi on any other occasion.[129]

    Marion cinema incident

    [129] T64.2-3.

36. There was an occasion where the accused and [JR] went to the cinema. The accused did not want to pay for two movies so after watching one, they snuck into the next one after hiding in the toilets.[130]

    [130] T64.32-38.

37. They were sitting in the centre of the movie theatre audience.[131] [JR] remembered the accused pointing out a woman that he recognised as a prostitute and that he had driven her around previously. He mentioned that he had been offered to be a male escort, which struck [JR] as strange because she believed him to be ‘very old and very unattractive’.[132] She could not recall what movie was playing.[133]

    [131] T65.3-4.

    [132] T66.17-18.

    [133] T66.21.

38. [JR] said that the accused put her on his lap, such that she was facing the screen. He moved her underwear to the side and inserted his penis into her vagina.[134] She recalled that he used his hands to rock her hips, but she could not say how the incident came to an end or recall any other details.[135]

    [134] T66.23-29.

    [135] T66.32.

39. There were only one or two other people in the cinema at the time. [JR] remembered it being dark and that she tried to keep quiet.[136]

    Granite Island incident

    [136] T66.9-10.

40. [JR] gave evidence about a time that she and the accused visited Granite Island. They began in Victor Harbour and took the horse-drawn tram over to the island. She remembered that he made attempts to pull her close and put his arm around her, however she avoided his advances and shrugged him off; she said she was embarrassed that people would think they were in a relationship.[137]

    [137] T67.1-5.

41. She remembered walking on the walking trail around Granite Island. They had sex in the shrub area. [JR] drew a diagram of the location where she and the accused had sex (Exhibit P6).[138] She said that she was facing the left-hand side of the rectangle and was laying on her back.[139] She explained that the circle that she drew around the area depicted the location of the path that the incident occurred in.[140]

    [138] T67.17-18.

    [139] T67.30-31.

    [140] T67.36-38.

42. She confirmed that they had sex just off the path. She remembered that they both kept their clothes on but that they were pulled down such that the accused was able to insert his penis inside her vagina in a missionary style position.[141] The incident lasted a few minutes.[142]

    Incidents at the Jeffrey Street address

    [141] T68.7-10.

    [142] T68.11-13.

43. When [JR] first moved into this address, she remembered that the accused wanted to have sex on the bed with her. [JR] refused, and she recalled him being annoyed because of this.[143]

    [143] T72.5-7.

44. She was not able to recall any other sexual encounters at this address.

    General nature of relationship with the accused

45. [JR] was then questioned about how the accused would treat her generally during the relationship. She said that the accused would always tell her that she was smart, pretty, and more mature than other girls her age.[144] This made [JR] feel special because she did not receive compliments at home.

    [144] T35.20-27.

46. She said that there were a lot of things going on at home around this time and she felt unsafe due to being regularly assaulted.[145] [JR] was asked how her relationship was going with the accused whilst considering her above circumstances at home. [JR] felt as though she had to continue with the accused because ‘at least [she] wasn’t being physically assaulted’, as well as there being no risk of dying.[146] She said the accused would also cook for her and focus a lot of time and energy on her.

    The accused made [JR] uncomfortable

    [145] T36.16.

    [146] T36.20-22.

47. [JR] said one of the main things that made her uncomfortable was the way the accused spoke to her like an adult. She said he tried to encourage her to move in with him, and that she should lie about the nature of their relationship by telling people he was her father.

48. [JR] spoke of an occasion where the accused took her to a sex shop that was close to her school. She remembered wearing her school uniform and the accused wanting to look at the pornographic DVDs. She felt embarrassed and worried that someone would see her in her school uniform. She was shocked that she was let in with her school uniform.[147]

    Phone calls with the accused

    [147] T75.12-19.

49. Whilst living at [N] and [B]’s home, [JR] would speak to the accused over the phone. At this time, she was sharing a room with [AB]. [JR] recalled that she knew the phone calls with the accused were disturbing [AB] as she complained about being on the phone at night-time.[148]

    [148] T38.29-34.

50. During some of these phone calls, [JR] said the accused would speak in a low-deep voice and count to 100 whilst he encouraged her to masturbate on the phone.[149] She said that this counting conversation happened on at least 10 separate occasions and that the majority of the incidents occurred when she lived at [N] and [B]’s, although it may have happened once or twice when she lived at [JG] and [K]’s.[150] She confirmed that [AB] was present in the room when it happened at [N] and [B]’s.[151]

    [149] T38.32-34.

    [150] T39.11-14.

    [151] T39.17.

51. [JR] stated that she in fact did masturbate whilst the accused was on the phone. She said she would be under the covers of her bed while she did this.[152] She could not recall speaking about anything else with the accused during these phone calls.[153]

    The accused picking [JR] up in green utility vehicle

    [152] T39.24-29.

    [153] T39.32.

52. Other than the one occasion [JR] could remember the accused picking her up in his taxi, he typically would collect her, when she was living with her family, in a green utility vehicle at the end of her road. She remembered this because of her fear of snakes, she would walk the long way to get to the pickup spot as opposed to the short cut through the scrub.[154]

    [154] T64.12-17.

53. The accused would also pick her up from the granny flat and she believed he had also picked her up at [JG] and [K]’s house. However, she said he did not pick her up from the front of the house, and instead would collect her down the street.[155]

    Use of contraception

    [155] T64.29.

54. [JR] started using the contraceptive pill but could not say when she started using it. She estimated it was either when she was living with her family or living in Murray Bridge.

55. [JR] said the accused never wore condoms and used the withdrawal method, but noted that there were also times that he ejaculated inside her.[156]

    Initial complaint evidence

    [156] T73.14-19.

56. After living at the granny flat, [JR] moved to [JU]’s house. She said she met [JU] when walking to school. [JU] worked at a fibreglass factory and she was whistled at by him and some workmates as she walked by. She then met [JU] out one night.

57. When talking to [JU], she told him about the situation with the accused, including that he filmed her having sex with him, and that she wanted to stop seeing him and having sex with him. [JU] was the first person she had spoken to about the situation with the accused.

58. She told [JU] the accused’s name.[157]

    Last conversation with the accused

    [157] T70.6-7.

59. As mentioned above, at the time of moving into the Jeffrey Street address, [JR] gave evidence that at this point she made efforts to distance herself from the accused. She explained she did this by not answering his calls, or if she did answer, she would purposely keep the conversation brief.[158]

    [158] T72.13-14

60. She said that the accused was unaware that [JU] intended to move in with her at the Jeffrey Street address.

61. [JR] said the last time she recalled speaking to the accused was after she moved out of the Jeffrey Street unit. They spoke about a cleaning charge following the move out.[159] After this conversation, [JR] could not recall ever speaking to the accused again.[160]

    [159] T72.34-35

    [160] T73.10

    Cross-examination

    Chronology of addresses

62. [JR] confirmed the following details about her living arrangements. She confirmed that she found it easier to pinpoint when she lived at certain addresses based on what year level she was at school, as opposed to specific dates or ages.[161]

    Jeffrey Street address

    [161] T79.11-12

1. She believed that it was around the end of year 11 when she lived at this address.[162] She believed that the minimum time she would have lived there is eight or nine months.[163]

   [JU]’s house

   [162] T79.15-16.

   [163] T79.24.

2. Immediately preceding this, she lived at [JU]’s house with his family.[164] She said she stayed there for a couple of weeks and shared a bedroom and a bed with [JU].[165]

   Granny flat

   [164] T79.27.

   [165] T79.28-38.

3. She believed she moved out of the granny flat when she was around 15 years old or when she had recently turned 16. She lived at the granny flat because [K] found her the address to live at before the church lady’s address. She stayed at the granny flat for around three to four months.[166]

   Church lady’s house

   [166] T81.1.

4. [JR] confirmed she stayed at this address for only a matter of weeks.[167]

   [JG] and [K]’s house

   [167] T81.5.

5. [JR] confirmed that prior to living at the Church lady’s house, she stayed with [JG] and [K] for between six to eight months.[168] When [JR] returned to school for year 11 after finishing year 10, she stayed with [JG] and [K]. She said she did not stay at this address long due to [JG] and [K] finding out about the behaviour of her father.[169] When they found out about her homelife, she ceased visiting her parent’s house. She said [JG] and [K] became aware of this not long after her staying with them. She was not able to be more specific with the time frame regarding this point.[170]

   Homestay with [N] and [B]

   [168] T81.9.

   [169] T82.33.

   [170] T83.9.

6. [JR] confirmed that whilst living in her home-town she also had a homestay arrangement at [N] and [B]’s house. This first began when she commenced year 10. She stopped staying there at the end of year 10 and started the homestay arrangement at [JG] and [K]’s place at the start of year 11.

   Disclosure to IT coordinator

7. When [JR] was asked about how [JG] and [K] came to find out about her home life, she said that it was due to her telling an IT coordinator. [JR] said she used to stay behind in the IT room at school and told him during one of these occasions.

8. After telling the IT coordinator, [JR] believed it was only a matter of weeks before ‘everything came out’.[171] [JR] clarified that by ‘everything’ she meant ‘the abuse that had happened to me by my mother and father and the abuse occurring between my father and mother’.[172] Insofar as she was aware, [JR] said it was only the IT coordinator and [JG] that were made aware of this; she was not sure if other teachers at her school knew.[173] She said that she told police that she was being abused at home but did not follow through with a complete statement as she felt like she was not being taken seriously.[174] She said that she was not able to recall specifically if she spoke to friends about the abuse, although she ‘may have discussed with them or they may have also observed [her] behaviours as a bit unusual and seen that [she] didn’t have parents around’.[175]

   [171] T83.23-24.

   [172] T84.14-16.

   [173] T84.22.

   [174] T84.23-36.

   [175] T85.3-6.

9. After [JG] and [K] found out about the alleged abuse, [JR] said they told her ‘You are not returning [home]. You are coming home with us’.[176]

   Approach when providing statements to police

   [176] T83.28.

10. [JR] agreed that she had spoken to police about the events that relate to the trial.[177] She agreed that over the course of the investigation she provided five statements to police.[178] She said that she was as careful as she could be when it came to including only accurate information in said statements, and that she signed them and highlighted any mistakes to police who assisted in drafting the statements; she would not sign it if the statement contained errors.[179] 

    [177] T85.11.

    [178] T85.17.

    [179] T85.30.

11. [JR] agreed that her original statement to police was 56 paragraphs long and agreed that she thought about it quite a lot before signing it.[180] She agreed that she sent two long emails to the investigating officer.[181]

    First phone call with the accused

    [180] T93.17.

    [181] T93.25.

12. [JR] confirmed that the first time she spoke with the accused it was following the diverted phone call. She remembered the phone call occurring on a ‘warmer type of night’.[182] She said that she typically made phone calls after 9 pm because she had free calls after that time.[183]

    [182] T87.3.

    [183] T87.5-6.

13. This occurred at the start of the school year when she was in year 10.[184]

    [184] T86.22-27.

14. [JR] was questioned about why she told the Court that she never spoke to [TM] about the phone diverting incident. She explained that she took the question during examination-in-chief to be asking whether she had spoken to [TM] about the offending. She then confirmed that she did tell [TM] that her phone had diverted to an unknown person. She was not able to say whether [TM] said anything in response to this.[185]

    [185] T88.3-5.

15. She said that she did not call [TM] again after attempting to call her on that occasion when the phone diverted.

16. [JR] confirmed that she told the unknown man, who was the accused, her age on the phone. She said she could not recall if she said she was 14 or 15, but she told him the age that she actually was at the time.[186]

    [186] T89.12-13.

17. She agreed that when providing a statement to the police about this incident, she said that she told the male that she was only ‘14 or nearly 15 years old’.[187]

    [187] T89.20-28.

18. She agreed she spoke to the accused for some time during the phone call, for around 40 minutes.[188]

    [188] T90.1-2.

19. Later in cross examination she was asked how she performed the phone call. [JR] said she had a mobile but was at first unsure whether she had the same phone number consistently throughout the relevant period for events related to the trial.[189] [JR] was directed to page 29 of MFI D7. She remembered that she had her number on a social media page (she believed either on Myspace or Facebook) and told Detective Stone that whilst she was unsure, she thought it could have been the phone number she had throughout the relevant times. The phone number in question ended in 521.[190] 

    Meeting with the accused following the phone call

    [189] T157.29-158.1-9.

    [190] T159.1-14.

20. [JR] confirmed that she agreed to meet the accused after the phone call and clarified that, at the time of providing a statement to police, she had not meant that immediately following the phone call that [JR] had picked her up, and instead she met him a week later in her home-town.[191]

    [191] T91.1-5.

21. She gave evidence that she did not immediately meet with the accused following the phone call, but accepted that her police statement said she did.[192]

    Abuse at home

    [192] T91.38.

22. [JR] was asked about the incident where both she and her mother were assaulted, and her mother threatened to take her own life. She was asked why she called the accused to collect her from the house as opposed to [N] and/or [B]. [JR] explained that she did not believe [N] or [B] would help her, and she was concerned that she would be kicked out of their house due to the associated stress and trauma of her homelife.[193] 

    [193] T102.32-37.

23. [JR] believed that the police came that night, but she could not recall speaking to them. At that time, she did not believe that the police would help her.[194] The complainant said that hours passed between when she called the accused and him coming to the house to collect her.[195]

    [194] T104.11.

    [195] T104.37.

24. She could not recall if her mother’s injuries were readily obvious.[196]

    [196] T104.14.

25. [JR] said that this was the incident that sticks out in her mind as a time that her mother made drastic threats and appeared willing to carry them out.

26. After this incident, [JR] believed that this was the last time she lived at the family house. She confirmed she did not return.[197]

    [197] T153.22-27.

27. [JR] agreed that she had told police that her father had tied her up. She said this happened on one occasion when she was living at the family house.[198]

    Disclosing abuse at home to others

    [198] T190.21-33.

28. [JR] agreed that her father’s behaviour was highly abusive and violent, although she caveated this by explaining this was an understatement. [JR] said that when she told [JG] and [K] about her father’s actions, she said she did not explain to the extent that she did when drafting the police statement. She was unsure if they understood the magnitude of the abuse.[199] She could not recall whether she told them that her father was sexually abusing her, but [JR] gave evidence that whilst her father was a ‘psychopath … he did not sexually abuse’ her.[200]

    [199] T162.12-24.

    [200] T164.19-20.

29. She agreed that the reason she never returned home and was living at [JG] and [K]’s house was to avoid what her father was doing.[201] She did not report this abuse to the police because she believed that an adult would do it on her behalf. She said she was around 15 or 16 years old at this stage.[202]

    [201] T162.25-28.

    [202] T164.10-18.

30. [JR] said she did not tell [N] and [B] about the violence at home and recalled them not understanding why she could sometimes be emotional.[203] She explained that she was fearful that if she mentioned it, she would be returned home and subsequently killed by her father.[204]

    [203] T100.23-24.

    [204] T100.25.

31. [JR] said that she told the IT coordinator about the abuse at the hands of her father, but that she did not disclose being sexually abused by the accused to that individual.[205] She suspected that this is how the school found out about her home life. She said the reason she told the IT worker was because she was seeking comfort.[206] She said she did not think she told him about the accused because she considered what was happening with the accused to be far more shameful and traumatic.[207]

    [205] T165.12-18.

    [206] T165.19-20.

    [207] T165.26-30.

32. [JR] confirmed she reported her father to the police at the local police station in her home-town,[208] which confirmed her belief that no adult cared about what was happening to her.[209] She said she had no way of knowing how old she was but agreed she had told police in later statements that she was only about 15 years old.[210]

    [208] T166.26-27.

    [209] T166.7-11.

    [210] T166.32-167.1.

33. [JR] said she did not tell police at this stage due to experiencing deep shame.[211]

    [211] T167.4-5.

34. She remembered talking to Child Protection Services (‘CPS’) at school but could not remember how old she was.[212] She remembered being completely terrified to tell CPS anything because she was scared she was going to be sent back to her family home.[213] She was also scared that if she reported anything to do with her father, it would get back to him and things would escalate and that abuse would worsen.[214]

    Telling others about the accused

    [212] T167.13-15.

    [213] T167.9-12.

    [214] T168.13-14.

35. When the accused picked her up at the end of her street, she explained that no one knew who she was with or where she was and that no one would have noticed or cared.[215]

    1.   Telling [TM]

    [215] T100.10-14.

36. [JR] said she was fairly sure she called [TM] prior to the second half of 2002.[216] She did not believe she said anything to [TM] about sexual activity with the accused either; or at least not following the first conversation where she may have only mentioned the accused’s name to [TM].[217] Later in cross-examination, [JR] confirmed that she had told [TM] that her phone call to her had diverted to an unknown adult male.[218]  

    2.   Telling CPS

    [216] T102.11-12.

    [217] T140.31.

    [218] T153.18-20.

37. [JR] did not tell CPS about the accused because she was ashamed, and, although she was not sure, she believed her sister may have been present during the conversation with CPS.[219] She reiterated this later in cross-examination, specifically that she had a great deal of distrust towards adults generally.[220]

    3.   Telling [JU]

    [219] T168.4-9.

    [220] T168.20-23.

38. [JR] confirmed that she told [JU] about the abuse whilst she was living at the granny flat. She said she told [JU] prior to staying with him for two to four weeks at his house.[221]

    4.   Living at the granny flat and telling [JB]

    [221] T168.24-37.

39. It was suggested to the complainant that she told [JB] that she did not want the accused coming around the house, [JR] agreed with this.[222]

    [222] T169.19-24.

40. It was put to [JR] that despite this, she continued to invite the accused around. [JR] disagreed and said she did not consider her actions to constitute ‘inviting’ him. She said that if the accused asked to come to the house she would say yes, and her reasoning behind this was because she was thinking about where she would live if her housing with [JB] fell through.[223]

    5.   Telling the police about the accused’s appearance

    [223] T169.19-33.

41. [JR] agreed that she saw the accused naked on many occasions, including his front and back.[224] She said that she did not examine his body in detail. It was put to [JR] that when she provided a statement to police, she told them that he had no tattoos or other markings or scars that she could remember. She agreed she said that, but said she wished she had said that she did not observe his body in detail at the time.

    [224] T177.27-33.

42. It was put to [JR] that the accused had a large surgical scar in the middle of his back, [JR] said she was unsure how to respond to this statement.[225] She rejected the suggestion that she had never seen the accused’s naked back.[226] She agreed with the suggestion that she did not realise he had a scar because she had missed it.[227]

    Particularised incidents

    First incident (sports oval)

    [225] T178.34-37.

    [226] T179.3-6.

    [227] T179.16-18.

43. [JR] recalled it being a warm time of year during the first incident at the sports oval.[228]

    [228] T99.14.

44. She described the towel as a soft linen towel/blanket. She said when she gave evidence in examination-in-chief that it was specifically a towel. What she had in fact meant was that it was soft bedding; she said that she had only hoped to express that the accused had laid something soft for them to lay down on.[229]

    [229] T92.17-22.

45. She agreed that she had initially told police that the accused put the towel on the driver’s side, but now believed it was the passenger side. She said that she came to this conclusion because she had thought about the events repeatedly.[230]

    [230] T92.31-35.

46. She confirmed that when he first touched her on the vagina on the outside of her clothing, she was sitting in the passenger seat, and he was sitting in the driver’s seat of the car.[231] She said whilst they were still in the car, he then proceeded to touch her on the vagina under her underwear.[232]

    [231] T94.9-15.

    [232] T94.16-18.

47. She confirmed that the accused also touched her vagina whilst they were outside the car as well as when they were inside the vehicle.[233]

    [233] T94.33.

48. [JR] was then queried about inconsistencies with her statement to police and with her recollection of this first incident in examination-in-chief. She said she did not tell police specifically that the accused touched her both over and under her underwear because at the time of drafting the statement, the act of the accused putting his hand underneath her underwear was the ‘most traumatising part’.[234] She said that she was merely explaining the incident as she was able to recall it in that particular moment; as opposed to remembering something new.[235]

    [234] T95.15-16.

    [235] T95.20.

49. [JR] went on to say that the incident concluded because the accused ejaculated insider her vagina. She was not on any form of contraception at the time, although she did not believe she made the accused aware of this.[236] She confirmed that she was dropped back to the end of the road near her family home.[237]

    Second incident (Baan Hill)

    [236] T95.25-30.

    [237] T95.37.

50. After the first incident, [JR] said she was shocked, disgusted at herself, and mortified by the events that had transpired. Despite feeling like this, [JR] expressed how talking to the accused over the phone was a welcome respite from the abuse she was experiencing at home, where she felt like she could die.[238] [JR] agreed that she only spent from Friday evening to Sunday (to about the middle of the day) at home which amounted to less than 48 hours.[239]

    [238] T96.18-25.

    [239] T96.25-30.

51. [JR] thought that the Baan Hill incident occurred only a few weeks after the first incident. She believed it was a warm time of year.[240] When she made this arrangement to meet the accused again, she reasoned that they would likely have sex again, but felt that this was a safer option compared with what she was experiencing at home. She explained that feeling mortified was ‘better than being killed’.[241]

    [240] T99.17.

    [241] T97.5.

52. At this stage she had not told [N] and [B] what was happening at home.[242]

    [242] T97.8.

53. [JR] confirmed that the accused had tied her up and had sex with her. She said that after this incident she felt very unhappy, ashamed, and disgusted and that she was aware that the accused was doing the wrong thing.[243]

    [243] T97.28-32.

54. [JR] was directed to consider her previous statements to the police where she said, 'every time I saw his green tray-top ute arriving as I stood at the end of the street I had a sick and nauseous feeling in my stomach'.[244] She explained that she felt safer with a man who tied her up and had sex with her in the back of a ute, and that she believes she is lucky to be alive due to the abuse she was experiencing at home.[245]

    [244] T98.3-7.

    [245] T98.12-18.

55. Following the second incident, [JR] said she met up with the accused either the next week, or the week after.[246] She clarified that despite feeling safer with the accused than she did at home, she was still scared that if she did not comply with what the accused wanted her to do, he might leave her at Baan Hill; she was not scared of him killing her.[247] She said at the time she felt like she was making life or death decisions.

    Incidents at the accused’s mother’s house

    [246] T97.25.

    [247] T99.35-36.

56. [JR] confirmed that when the accused collected her after the incident where her mother threatened to kill herself, he took her to his mother’s house.[248] On the journey from her hometown to the accused’s mother’s house she said she felt like she was running on adrenaline.[249]

    [248] T104.29.

    [249] T105.13-14.

57. [JR] said that she went to the accused’s mother’s house around four times. She was then directed to her statement to police[250] that contradicted this. She said after this incident where the accused collected her from Her home-town, she did not attend the mother’s house again. She agreed that this is what she had told police but explained that she was only able to recall incidents as opposed to their chronological order. 

    [250] Statement of [JR] dated 29 February 2020, para 21.

58. [JR] was pressed on the inconsistency between her statement to police that ‘I don’t think we went there again after that’ and her saying that she went to the house on approximately four occasions. She stated that she became aware of his mother's reluctance to have her at the house around the time of either the last visit or the second to last visit.[251] Later in cross-examination, [JR] confirmed that despite the wording of the statement, she did visit the accused’s mother’s house on multiple occasions.[252]

    [251] T108.24-25.

    [252] T141.33.

59. The first time she visited the house, she did not see the accused’s mother, but believed the mother was at home.

60. [JR] said that each time she visited the accused’s mother’s house she had sex with the accused. On each occasion, but for the incident where the accused shaved her vagina, he filmed them having sex.[253] She said she believed, but could not recall, whether this included the first time she visited the house after the incident involving her mother.[254]

    [253] T142.8-12.

    [254] T142.13-19.

61. [JR] was referred to her statement to police on 25 September where she stated that the accused ‘filmed our sexual acts on a webcam and live streamed this activity and this happened on every occasion I was at his mother's house'. She agreed that she had said that to police, but could not recall whether she was in fact filmed on the first visit to the accused’s mother’s house.

    The accused filming at his mother’s house

1. [JR] said she was filmed via a computer and webcam, and that she believed it was being transmitted via the internet live to other people. She said that this was the way she was filmed at the accused’s mother’s house.[255] She said the accused did not film her using a hand-held video camera or a mobile phone.[256]

   [255] T143.21-33.

   [256] T143.34-37.

2. [JR] said she could see ‘things popping up’ and that she recognised the computer program as being MSN Messenger, which she had personal experience with.[257] She said that she did not see the screen every time, but she thought that it was always MSN messenger used in the filming and transmission of the sexual activity.[258] She agreed that despite not seeing the screen every time, she told police that he ‘always used MSN messenger’ for filming purposes.[259]

   [257] T144.2-9.

   [258] T144.18-21.

   [259] T144.29-31.

3. [JR] said that the accused told her that the video was being broadcasted on the internet, albeit she was not able to see proof of this. On occasion, she could hear ‘pings’ or sounds during the alleged filming.[260]

   [260] T146.5-15.

4. She said the accused told her this at the onset of when he began filming her, although she could not say for certain if it was on the first incident after he picked her up following her mother’s suicide threat.[261] She confirmed that it did not occur later when they had sexual encounters at Meadows or at the granny flat address.[262]

   Email to Detective Stone – 26 February 2020

   [261] T146.16-24.

   [262] T146.25-26.

5. [JR] was shown MFI D7. She agreed that the email contained a narrative of her allegations against the accused.[263] She was referred specifically to paragraphs 13-15 and agreed that in the email where she described incidents at the accused’s mother’s house, she accepted that she did not include information about the accused notifying her that 200 people were watching.[264]

   [263] T148.21-25.

   [264] T149.10-28.

6. She agreed that in the email she said that the time the accused told her that 200 people were watching was in fact at Meadows.[265] She agreed that her evidence was different to what she said in the email.[266]

   [265] T150.20-23.

   [266] T150.28-36.

7. She was then referred to her statement to police dated 29 February 2020, where she told police that the first time the accused told her 200 people were watching her was at his mother’s house.[267]

   [267] T151.6-16.

8. When asked to explain the inconsistency between the email and the statement to police, [JR] explained that as she thought over things, some aspects would become clearer, whilst others would become unclear; she elaborated that as she was at this point just beginning to share her story, and that it was not going to be explained perfectly.[268]

   Layout of the accused’s bedroom

   [268] T151.18-24.

9. [JR] said the bed was either a queen size or double bed.[269] She was not able to provide an estimate of the size of the room.[270]

   [269] T144.37.

   [270] T145.1.

10. When describing the angle of the computer to the bed, she said it was facing the bed.[271]

    [271] T145.37-146.1.

11. [JR] was asked more questions about this later in cross-examination. She was referred to Exhibit P2. She explained that when lying on the bed, she would lie with her head against the wall that was displayed on the right-hand side of the diagram.[272] She clarified that the bed is side on to the table and chair.[273]

    [272] T186.21-23.

    [273] T186.35-37.

12. [JR] was unable to say where the accused’s bedroom was located in his mother’s house. However, she accepted that when she signed the statement, she had said that it was to the rear right-hand side of the house.[274] It was put to the complainant that the accused’s bedroom was in fact on the rear left side of the house; to which she justified her answer by explaining that it was dark; that she was disorientated, and that she still finds it difficult to comprehend the layout of a house as an adult, even if it was somewhere she had attended multiple times.[275]

    Incidents at hotels

    [274] T187.7-15.

    [275] T187.16-22.

13. [JR] agreed that she told police that the accused took her to the Ibis Hotel on Grenfell Street and conceded that the Ibis Hotel on Grenfell Street was not built until around 10 years after 2002.[276] During her email correspondence with Detective Stone in July 2021, [JR] agreed that it was brought to her attention that the hotel was not built at this point.[277] It was put that the emails show that [JR] suggested the hotel could have been a Novatel or Sofitel hotel. Again, Detective Stone alerted her to the fact that these hotels were not built at the relevant times.[278] She explained that she thought this way because she did not frequent Adelaide and was not familiar with it.[279]

    [276] T155.1-7.

    [277] [JR] was shown MFI D7 and directed to pages 26 and 27.

    [278] T156.14-22.

    [279] T156.31-38.

14. [JR] was asked why her original statement did not refer to the fact that she visited hotels four or five times with the accused. She replied that it was due to the number of incidents. She disagreed that it was because she was making deliberate changes to her story to avoid an obvious problem with her version of events. She said it was because she was a ‘small town child … completely out of [her] depth with even knowing where [she] was’.[280]

    Taxi incident

    [280] T157.7-28.

15. [JR] confirmed that during this incident, whilst she and the accused were having sex, she pocket-dialled her mother. She was not sure how it happened or how she discovered she was calling her mother and when she realised, she hung up.[281] She was not able to say how long the phone call went for. She said that her mother did not mention it to her. [282]

    Incidents at the accused’s house at Meadows

    [281] T159.15-29.

    [282] T160.1-3.

16. [JR] said she was unable to estimate when she first attended this address.[283]

    [283] T160.4-7.

17. She agreed that filming of sexual activity occurred at this address as well but could not confirm if the same webcam was used.[284]

    [284] T160.14-20.

18. It was suggested that the accused never lived at an address at Meadows. [JR] said that she did not know the area and that the accused spoke about Meadows a lot, so she assumed it to be where he lived; although she caveated this by saying that the accused could have told her the name of any suburb and she would have believed him.[285] She thought it was at Meadows, and that was how she referred to it in statements. She said there weren’t signs to confirm this like in the busier areas. She said that she agreed she had not pointed out the Meadows house on a map whilst providing statements to police.[286]

    Incidents at the granny flat

    [285] T160.25-30.

    [286] T161.26-30.

19. Despite not wanting the accused to visit her, [JR] said he continued to do so. [JR] confirmed that the filming of sexual acts continued at this address.[287]

    [287] T169.3-5.

20. [JR] was not sure if there was a telephone line to the house. She said there was a mobile phone in the flat but she was not sure if there was a landline telephone. She said all her utilities were paid through [JB], and that she just paid rent or board.[288]

    [288] T170.10-23.

21. She confirmed that she had access to the internet, although she could not recall how exactly she accessed it, whether it was wi-fi or if she plugged a line into the computer.[289]

    [289] T170.36-37.

22. She said there was a laptop with a webcam on top of it; that is a web cam that was separate to the laptop itself. She confirmed these were both her own laptop and webcam and were what the accused used to film her performing sexual acts.[290] [JR] confirmed she was filmed by the accused on multiple occasions at this address.[291] She was asked why, if she was in possession of the laptop and webcam, she did not hide them from the accused. She said it simply had never occurred to her to hide them or dispose of them. She believed if she had hidden them, he would simply look for them and find them in any event.[292]

    Incident at Granite Island

    [290] T171.3-11.

    [291] T171.17-20.

    [292] T171.17-173.4.

23. [JR] agreed that she had been out in public with the accused. For example, the incident where she and the accused went to the cinema together. She said she believed that going to the cinemas at Marion with the accused occurred prior to incident that occurred at Granite Island.[293]

    [293] T173.24-31.

24. She said that the accused had not been as physically affectionate with her in public prior to the Granite Island incident, so she did not necessarily expect it. She also did not expect for him to try and have sex with her.[294]

    [294] T174.2-4.

25. [JR] said that she did not remember there being many people on Granite Island at the time, but it was not completely deserted.

26. [JR] said she assumed this incident occurred on a weekend because she was not at school, although it may have been during the school holidays.[295]

    [295] T174.21-23.

27. [JR] was not sure, but assumed, that the spot in which they had sex was deliberately off the path so that people would not be able to stumble upon them.[296]

    [296] T175.22-24.

28. [JR]’s statement to police, dated 29 February 2020, was read to her which stated that they ‘had sex on a walking trail at Granite Island … I was lying on the dirt path and the accused was on top of me’.[297] [JR] agreed that that is what she said in her statement. She was asked to explain the inconsistency between her statement which stated that they had sex on the path versus her evidence that it occurred off the path. She clarified what she meant was that the entirety of Granite Island was a dirt trail, and that it was somewhere on or around the dirt trail.

    [297] T175.26-33.

29. When asked further questions about this difference, she said she believed it was a matter of semantics and that the inconsistency could be put down to the style in which she personally communicates.[298]

    [298] T176.33-37-T177.2.

30. It was put to [JR] that she never went to Granite Island with the accused. She disagreed.

31. It was put to [JR] that instead of the accused, she went to Granite Island with [JU]. [JR] disagreed and said that she may have gone to Granite Island with [JU] on another or other occasions, although she could not specifically recall. She said that this incident did not occur with [JU] and that [JU] never sexually assaulted her.[299]

    Report made by Sergio (unconfirmed) to police

    [299] T177.10-21.

32. [JR] was asked about a police report made by someone that outlined that [JR] had sent them messages about how someone had broken her fingers, slapped her, raped her, punched, and strangled her.[300] She asked if the report was made by someone called Sergio, and said his English was very poor. [JR] said she was unsure if she had told anyone about this incident at the time.

    Statements to Dr Gupta

    [300] T180.19-26.

33. [JR] was asked whether in mid-2018 she had any mental health difficulties, to which [JR] replied she had had mental health difficulties her entire life.[301] She agreed that at this point her mental illness had worsened to the point that she voluntarily went to hospital.[302]

    [301] T181.20-25.

    [302] T181.26-32.

34. She agreed that at some point around this time she had a conversation with a Dr Gupta.[303] She believed this occurred after she was discharged. She accepted that Dr Gupta’s report was dated 28 June 2018.[304]

    [303] T182.6-7.

    [304] T182.18-20.

35. She was asked whether she told Dr Gupta that from 13 to 16 years of age she was sexually abused and filmed by an unknown person who comforted her. She, in her evidence, denied saying that because the person was not unknown to her.[305] ‘She denied telling Dr Gupta that she was sexually abused from age 13 to 16.[306] She said that she would not have used the phrase the ‘film was circulated on the internet’.[307]

    [305] T183.8-18.

    [306] T183.19-21.

    [307] T183.24-26.

36. She denied ever telling Dr Gupta that from a young age she was sexually abused on multiple occasions by multiple people, and that some of them were known and some of them were strangers. [JR] emphasised that the only person who had ever sexually abused her ‘like this’ was the accused.[308]

    [308] T183.27-31; T184.1.

37. A statement of Agreed Facts was tendered as Exhibit P16. The contents were admitted pursuant to s 34 of the Evidence Act (‘EA’). On this topic, the Agreed Facts relevantly included the following:

    Dr Gupta - Agreed Facts

    Mental Health Assessment 28 June 2018

    8.    On 28 June 2018 Dr Arun Gupta a consultant psychiatrist with Southern Mental Health, produced a comprehensive mental health assessment report following an appointment with [JR].

    9.    The report records:

    From 13 years to 16 years of age she was sexually abused and filmed by an unknown person who comforted her at the time. She said that this was circled on the internet which makes her feel a bit paranoid about her safety in multiple locations. During a young age she was sexually abused on multiple occasions by multiple people. Some of them were known and some of them were strangers which has obviously not helped her trust in relationships and trust in men in particular.

    10.    Dr Gupta has no independent recollection of meeting [JR] or of what was said during the assessment.

    11.    Dr Gupta would be relying solely on the report as his evidence if he were required to give oral evidence in this matter.

    12.    It is his usual practice to record what was said during an assessment as accurately as possible. Dr Gupta does not believe he deviated from this practice in this assessment.

    Conversation with [JB]

38. [JR] confirmed that [JB] was the lady that owned the granny flat. She admitted that she contacted [JB] via Facebook messenger after contacting her daughter requesting [JB]’s contact details.[309] [JR] was shown a copy of the Facebook conversation. She agreed that the conversation occurred after going to the police about this matter.[310] She said that she never called [JB] over the phone.[311] 

    [309] T187.28-T188.4; T189.5-9.

    [310] T187.12-15.

    [311] T189.

39. She said she could not recall sending the message but agreed that it outlined that a man with the same name as the accused had sexually abused her when she was 14 and that on one occasion [JB] told him to leave when he came to her house.[312]

    [312] T189.31-37.

40. She sent these Facebook messages to Detective Stone. She disagreed with the suggestions that she sent the messages to [JB] to encourage her to give certain evidence to assist her case in the trial.[313]

    [313] T190.4-20.

    Reference propositions

41. [JR] rejected the suggestion that she had not met the accused via a phone call from [TM]’s phone but instead met him on an online chat room.[314]

    [314] T190.34-191-2.

42. [JR] rejected the suggestions that she came to know the accused better because she accessed his services as a taxi driver on a number of occasions; she said that there were no taxis in her hometown. She rejected this despite the fact that she had previously lived in both her hometown and Murray Bridge.[315]

    [315] T191.3-14.

43. [JR] rejected the suggestion that she had told the accused that she had been sexually abused by somebody or more than one person.[316] Following from this, she said that whilst she agreed that the accused disclosed that he had personally been sexually abused in the past, it was not because she had disclosed a similar statement to him first.[317] She agreed that the accused had told her he had been sexually abused by his father.[318]

    [316] T191.15-18.

    [317] T191.19-24.

    [318] T191.25-29.

44. It was put to [JR] that she was having difficulties finding housing around the time she had to leave the granny flat. [JR] said that she was not sure if it was actually difficult, or if the accused was having difficulties finding her housing.[319]

    [319] T191.30-35.

45. [JR] agreed that at some point she left the granny flat because she had thought she had been locked out and immediately after this she went to [JU]’s parent’s house.[320] She agreed that she had concerns about outstaying her welcome at [JU]’s parent’s house.[321] She said she could have told the accused about these concerns.

    [320] T192.

    [321] T192.9-12.

46. It was suggested that the accused only agreed to be a guarantor on a lease for her because she was at risk of homelessness, and he felt sorry for her. [JR] replied that [JU]’s mother would never have ‘put her on the street’ and to this day she maintained a friendly relationship with her.[322]

    [322] T192.16-21.

47. [JR] had never heard of complaints about behaviour of the people living at the Jeffrey Street unit and allegations from the real estate agent that she and [JU] or others had been holding parties.[323] She also disagreed that the accused had withdrawn as guarantor on this basis. [JR] explained that she was introverted and did not enjoy wild parties.[324]

    [323] T192.22-31.

    [324] T192.32-193.3.

48. [JR] rejected the suggestion that she and the accused had never had sex. She said that they had had sex multiple times and that he had ruined her life.[325]

    [325] T192.4-9.

49. She rejected the suggestions that the accused had never taken her to the sports oval or Baan Hill.[326]

    [326] T193.10-14.

50. [JR] disagreed entirely with the proposition that at no point a sexual relationship between her and the accused occurred, including any type of sexual activity whatsoever, penile-vaginal sex, oral sex or touching of any kind.[327]

    [327] T193.15-25.

51. [JR] said that the accused took her to cafes, the movies, Granite Island and had visited his mother’s house and his house at Meadows.[328]

    [328] T193.27-36.

52. [JR] said that if her descriptions of the two houses were inaccurate it was because it was something that she still struggles with today in her role as a housing officer, and that she still gets descriptions of houses wrong.[329]

    [329] T193.37-194.6.

    Re-examination

    The Meadows address

53. [JR] said she thought that when the accused came to collect her, he mentioned the word ‘Meadows’ and that this suburb name stuck out in her mind.[330]

    Hotels

    [330] T194.25-195.5.

54. [JR] confirmed that she was not familiar with Adelaide during 2023 and 2024, and that the only time she typically visited Adelaide was when she would see her aunty and uncle in West Beach.[331]

    [331] T195.6-25.

55. [JR] said she had performed her own research or investigation surrounding the matter, and she did so because she was not familiar with the areas and wanted to try and find them, she said it allowed her a sense of control and would be beneficial to her healing process.[332]

    Incident where [JR]’s mother threatened suicide

    [332] T195.37-196.14.

56. [JR] confirmed that she waited at the end of Bews Road for a couple of hours for the accused to arrive.

    Lack of trust in adults

57. When asked about what trust [JR] instilled in the accused, she said that he was a constant in her life whilst staying at different places and experiencing ‘chaos’.[333]

    Using the accused for his taxi service

    [333] T198.4-6.

58. [JR] said that she was on a very low income, which she described as a basic Centrelink allowance, to the extent that she received free food from the lady at the fish and chip shop. She had not used a taxi and said she would not have known how to order a taxi. [334]

    [334] T198.18-33.

    Dr Matthew Sorell

    Examination-in-chief

    Background

59. Dr Sorell is the senior lecturer in the School of Electrical and Electronic Engineering at the University of Adelaide; he specialises in telecommunications and multimedia systems. He has over 22 years of experience in teaching, developing and consulting in this area. Between 1998 and 2002, Dr Sorell was a senior research engineer and business development manager with Centre for Telecommunications Information Networking (‘CTIN’). He has experience in telecommunications technology over the past 22 years, including between 2001‑2003.

    The report

60. Dr Sorell was approached by SAPOL to provide a report in this matter,[335] specifically regarding the state of video streaming during the period of 2001 to 2003.[336] To prepare said report, Dr Sorell was provided with the following materials:[337]

    1.      Two statements made by [JR] dated 29 February 2020 and 10 November 2020;

    2.      An addendum statement signed on 1 May 2022;

    3.      A form 24 expert evidence notice regarding this matter dated 26 August 2022;

    4.      A statement/letter related to Duncan Powell dated 19 July 2022; and

    5.      A report of Mar Noordin dated 19 August 2022.

    [335] T200.25-28.

    [336] T201.1-4.

    [337] T202.15-16.

1. Mr Marcus submitted that there was very limited evidence as to whether or not the internet was present at the premises at all. Mr Marcus noted that there was therefore an aspect of forensic disadvantage to this evidence.

2. Mr Marcus said that the internet-based abuse is integral to the complainant’s narrative.

   Expert evidence

3. Mr Marcus submitted that Ms Noordin’s evidence was more applicable to the matter at hand due to her being able to provide examples from domestic settings, noting Dr Sorell’s evidence referenced technology available to universities and the like. 

4. Mr Marcus submitted that in considering Ms Noordin’s evidence, it was highly unlikely that the filming scenario would have occurred. Mr Marcus went on to submit that the Court would need to be satisfied that there was internet there at all before moving on to consider what else might be proved. Mr Marcus submitted that the contemporaneous recording of sexual abuse, uploading and then whilst the sexual acts are taking place, for there to be live interaction with the said material, is not feasible given the limitations of the technology at the time. Mr Marcus said that it was merely speculative to suggest that the accused could be sending messages regarding the sexual activity that was about to take place, e.g., to take requests from others.

   Dr Gupta’s report

5. Mr Marcus said that an irreconcilable inconsistency was when the complainant stated that the only person that had sexually abused her was the accused, but also told Dr Gupta that she had been sexually abused by people both known and unknown to her, as well as the fact that she denied ever saying this to Dr Gupta. Mr Marcus submitted said that there was no interpretation of this evidence that could result in an assessment of [JR] being a credible or reliable witness. Mr Marcus said there is no evidence available to find that Dr Gupta has departed from his general practice of contemporaneously taking notes. Mr Marcus offered two possible scenarios to explain this discrepancy: the first being that the complainant has significantly embellished the abuse that she suffered, the second being that she lied when giving evidence in the Court, particularly in relation when answering the question: ‘did you say that to Dr Gupta and have you been abused by more people than just the accused?’.

6. Mr Marcus said that because both of those explanations involve a deliberate telling of an untruth regarding sexual abuse, it is an inconsistency that amounts to a ‘silver bullet’. Mr Marcus submitted that the explanation that the accused was only unknown at a certain point in time was not available to the complainant because she explicitly said that she did not say anything along those lines to Dr Gupta, because the accused was in fact known to her.

7. Mr Marcus submitted that this, combined with the other inconsistencies he raised, clearly demonstrates that the complainant is not a credible or truthful witness. However, he caveated this by saying that he did not want to be mistaken for suggestion that the only conclusion is that the complainant was lying; more that the evidence cannot be justified rationally.

   Topic 4 – manner of giving evidence

8. Mr Marcus’ overarching submission in relation to Topic 4 was that the way the complainant presented and delivered evidence raises serious questions as to her reliability.

9. Mr Marcus provided certain examples of the complainant’s idiosyncrasies when giving evidence, specifically certain phrases that she repeated throughout giving evidence like ‘I can’t remember right now’; ‘I’m flooded with trauma, it’s a bit of a blur.’ Mr Marcus said these mannerisms were a significant bar to the reliability of the complainant.

10. Mr Marcus also submitted that the complainant’s tendency to rely on research she had performed was ‘self-corroboration’ and enabled her to weave the research into her account. He said the key issues was that the corroboratory research was done retrospectively and was not achieved by an independent source such as the investigating officer. Mr Marcus submitted that this was an instance of contaminated evidence even if it was done unconsciously, in this line of argument he referred to the case of Sexton v The Queen,[569] particularly paragraphs 190-193 where the Court of Appeal stated, ‘the prosecution ultimately carries the burden of disproving collusion or contamination’.

    [569] [2022] SASCA 73.

11. Mr Marcus submitted that much of the complainant’s evidence was not specific enough to be deemed esoteric knowledge; it could have been knowledge that she was capable of obtaining from her non-sexual interactions with the accused.

    Accused’s interview with police

12. Mr Marcus submitted that the accused presented as candid during his police interview. The accused explained matters to police freely. He admitted to knowing the complainant, meeting with her, and helping her with her rental bond. Mr Marcus submitted that these were benign acts with no connotation of sexual activity.

13. In relation to the accused not turning his mind to the complainant’s age, Mr Marcus submitted that this is not a lie for the relevant purposes. Mr Marcus raised that in a further conversation, the accused signed the complainant’s guarantee when she was 16. Mr Marcus submitted that it would be a dangerous line of reasoning to consider this obfuscation as an indication of consciousness of guilt.

14. Mr Marcus noted that the accused is before the Court without prior convictions.

    Absence of evidence from potential key witnesses

15. Mr Marcus noted that there are several witnesses that did not give evidence during the course of the trial:

    ·       [JU] – who would potentially be able to provide evidence regarding initial complaints made by [JR];

    ·       [RR] – [JR]’s mother, who would potentially be able to provide evidence regarding the alleged domestic violence, and [JR]’s schedule; and

    ·       [N] and [B] – the homestay residents, who would potentially give evidence on the regularity of [JR]’s absence from her home when she said she would engage in sexual acts with the accused.

16. Mr Marcus submitted that there were further examples of forensic disadvantage, particularly that there were several records in addition to what had been mentioned that are absent that affect the assessment of the matter including telephone records, call records, subscriber checks, text messages, phone bills of [JR], the accused and [TM]. There are no records of internet accounts at any premises at all, nor are there banking records that point to attendance at hotels, sex shops or cinemas. There are also no evidence of the locations or descriptions of any sex shops in Murray Bridge.

    Topic 5 – directions applicable to this matter

    5.     Mr Marcus submitted that there were a number of matters that amounted to forensic disadvantage. They were as follows:

    a.Mr Marcus said that the typical issue regarding the passage of time, being 20 years applied here as a forensic disadvantage, but specifically that the accused is not able to remember himself what happened, but also that other witnesses that could have assisted with prompting his memory were not present in proceedings;

    b.Mr Marcus submitted that the general inability to access records and documents due to time passed was a disadvantage. Particularly as many of the records related directly to the charged acts, e.g. the hotel records and phone records. There are also no objective floor plans of the premises available to compare to those that [JR] has drawn;

    c.there is no evidence of the reciprocal complaint as received by [JU].

17. Ultimately, Mr Marcus submitted that this was a matter where there was insufficient evidence available to prove that these events occurred to any standard, let alone to the standard of beyond reasonable doubt. Combined with this, Mr Marcus submitted that there are pieces of evidence that render impossible the version of events described by [JR]. Mr Marcus submits that alone, the inconsistencies are not fatal, but the culmination of the inconsistencies are fatal to the Crown case.

    Consideration

    Forensic disadvantage

18. Whilst the requirement to direct on s 34CB of the EA does not apply to a trial by judge alone, the principle of forensic disadvantage remains. The question of forensic disadvantage pursuant to s 34CB of the EA was discussed by the Court of Criminal Appeal in R v Cassebohm,[570] R v Maiolo (No 2),[571] R v W, PK,[572] and more recently in R v R, PA.[573]

    [570] (2011) 109 SASR 465.

    [571] (2013) 117 SASR 1.

    [572] [2016] SASCFC 5.

    [573] [2019] SASCFC 19.

19. What is crucial is that s 34CB is exclusively directed at the forensic disadvantage to the accused, and that disadvantage is not diluted by virtue of similar disadvantages to the prosecution witnesses.

20. In R v Cassebohm, Doyle CJ, relevantly said:

    I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so.

21. In R v Maiolo (No 2), these factors result in a diminution of the accused’s ‘ability to effectively conduct the case including to cross-examine the complainant in a way that effectively casts doubt upon issues of credibility and/or reliability’.

22. I direct myself that the accused has been substantially forensically disadvantaged in terms of being able to effectively conduct his case. I will take into account that forensic disadvantage to the accused when I come to scrutinise the evidence of the prosecution, and to assess whether the prosecution has proved the objective elements against the accused. In this case, the forensic disadvantage extends to the matters identified by defence counsel during the closing address and referenced it in [519]-[520] above. In addition, I accept the existence of a forensic disadvantage in accordance with that expressed in R v Maiolo (No 2), above.

    Complaint

23. The law governing the admission of the complaint is controlled by s 34M of the EA, which provides:

    34M—Evidence relating to complaint in sexual cases

    (1)This section abolishes the common law relating to recent complaint in sexual cases.

    …

    (2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.

    (3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.

    Examples—

    Evidence may be given by any person about—

    • when the complaint was made and to whom;

    • the content of the complaint;

    •how the complaint was solicited;

    •why the complaint was made to a particular person at a particular time;

    • why the alleged victim did not make the complaint at an earlier time.

    (4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—

    (a) it is admitted—

    (i)    to inform the jury as to how the allegation first came to light; and

    (ii) as evidence of the degree of consistency of conduct of the alleged victim; and

    (b)   it is not admitted as evidence of the truth of what was alleged; and

    (c)    there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,

    but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.

    (5) It is not necessary that a particular form of words be used in giving the direction under subsection (4).

    (6) In this section—

    complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);

    initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).

24. The initial complaint in this matter was made by the complainant to [JU]. That complaint consisted of a disclosure ‘I told [JU] that [the accused] was having sex with me and filming it and that I didn’t like it’.[574]

    [574] T69.

25. This complaint is admissible as the initial complaint. The complainant confirmed this was the first occasion that she had told anyone about the allegations and it is referable to the charged offending. I am satisfied that the disclosure complies with the statutory prerequisites for admission, pursuant to s 34M of the EA.

26. The disclosure reveals how the allegations came to light, and to indicate some consistency of conduct,[575] although the absence of evidence from [JU] moderates, to some extent, the weight to be afforded to the complaint.

    [575] R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98.

    Record of interview of accused

27. The police record of interview with the accused confirms a number of matters that are not in dispute, which include:

    1.      [JR] and the accused knew each other for a couple of years, probably from about the time he lived in Hope Forrest;[576]

    2.      The accused owned a green 1997 utility vehicle;

    3.      The accused had seen [JR] in Murray Bridge and her home-town; and

    4.      The accused had guaranteed the Jeffrey Street rental property for [JR].

    [576] Exhibit P11 has the accused residing at Hope Forrest from 2 July 2003.

28. The accused denied that he and [JR] were anything other than friends.

29. The prosecution submitted that the denials of the accused as to any sexual contact with [JR] should be rejected as not being reasonably possibly true. The primary basis for the submission were the comments of the accused to the effect that he never really gave any thought to [JR]’s age during the course of their interactions. This suggestion needs to be considered in the context of [JR] being about 14 or 15 years old and the accused being 38 years old at the relevant time. Further, relevant context exists in the fact that [JR] and the accused were complete strangers when they first made contact with each other. Common sense dictates that the age difference and [JR]’s relatively young age would have been something exercising the mind of the accused.

30. This aspect of the interview is unsatisfactory and is not truthful. This is not a lie borne out of a consciousness of guilt. I take this lack of candour into account in assessing the version provided by the accused in his record of interview.

31. It is self-evident that the prosecution case relies on an acceptance of [JR]’s evidence beyond reasonable doubt.

32. At the outset of this analysis, there are a number of issues that operate against the prosecution case – these include:

    1.   The complainant’s evidence as to how the complainant and accused first came into contact with each other;

    2.   The complainant’s evidence of sexual encounters said to have taken place at hotels that did not exist at the relevant time; and

    3.   The inconsistency between the complainant’s evidence, previous statements to police and the Agreed Facts relating to the complainant’s narrative with Dr Gupta in 2018.

    First contact

33. [JR] gave evidence that when she was in year 10 at school, she made a telephone call to her friend [TM]. [JR]’s evidence was that she dialled [TM]’s number and that [TM]’s phone rang out, before ‘diverting’ to another mobile, by chance to the accused. [JR] described a male answering the phone, exclaiming ‘well this is a mystery’. It is apparent [JR] did not know who she was talking with. According to [JR], a 40 minute conversation took place including, on [JR]’s evidence, she having a specific recollection of discussing her and the accused’s age and making arrangements to meet up in person one week later.

34. [JR] stated that the phone call took place at the start of the school year, when she was 14 or 15 years of age.

35. During evidence-in-chief, [JR] stated that she did not recall speaking to [TM] after the phone call, also stating ‘I don’t really think I’ve spoken to her much’.[577]

    [577] T13.

36. Contrary to this initial claim, when pressed on this topic under cross‑examination, [JR] appeared to adopt a different position. [JR] stated that she did tell [TM] that her phone had diverted to an unknown person.

37. Exhibit P14 is the affidavit of [TM] and was tendered on the agreed basis that the contents of the affidavit represent the evidence [TM] would have given in evidence.

38. [TM] stated that she and [JR] were never close friends. [TM] stated that she doesn’t remember giving [JR] her mobile number and that if she did, it would not have been until halfway through year 10 in 2002. [TM] does not recall making or receiving any telephone calls to or from [JR].

39. The evidence of [JR] on this topic was disconcerting. It seems implausible that by pure chance, the mobile telephone of the complainant’s friend diverted to a complete stranger who then participated in a 40 minute phone call with [JR], during which it was arranged for a physical meeting to take place within the week. A meeting at which it is alleged sexual intercourse took place within what must have been only a matter of minutes of meeting. The unchallenged evidence in Exhibit P14 tends to suggest that it is unlikely that [TM] gave [JR] her mobile telephone number in the first place. I regard the evidence of [JR] as to the circumstances of her first contact with the accused to be questionable. When combined with the confluence of surrounding circumstances, the account seems extremely unlikely.

    The hotel evidence

40. [JR] gave evidence-in-chief regarding a number of acts of abuse said to have occurred at ‘fancy hotels’ located in the CBD of Adelaide. This, [JR] stated, occurred on four or five occasions.

41. The following exchange took place during the evidence-in-chief of [JR]:

    QDo you recall any of the particular hotels that you went to.

    ANo. I wasn't from the city, I was from a rural area and I'd probably come to Adelaide once or twice a year and wasn't familiar with that at all.

42. Under cross-examination, on the topic of meeting places, [JR] agreed that in a statement to police, she stated that the accused took her to the Ibis Hotel on Grenfell Street. [JR] then conceded that the Ibis Hotel she identified was not built until 10 years after the alleged sexual abuse was said to have taken place at that very hotel.

43. During the course of cross-examination, [JR] was questioned about email communications which took place between [JR] and the investigating officer, Detective Stone. [JR] accepted that she was informed by Detective Stone in 2021 that the hotel she identified as a location at which the abuse had occurred did not exist at the relevant time.

44. [JR] accepted that she then nominated two further alternative hotels where the abuse occurred. [JR] identified the Novatel and the Sofitel. [JR] agreed that, as a consequence of investigations conducted by Detective Stone, [JR] became aware that the Sofitel was also not built at the relevant time. When questioned about whether the third option suggested, the Novatel, was where the abuse occurred, [JR] stated that she had ’no idea’.

45. [JR]’s explanation for her incorrect identification of hotels at which abuse occurred (on the basis they were not in existence at the relevant time), and her statement disavowing a further previously identified hotel was that she was not familiar with Adelaide. That explanation fails to explain [JR]’s preparedness to identify and proffer specific locations.

46. There are a number of concerning aspects to this aspect of [JR]’s evidence:

47. First, the evidence is plainly unreliable. Two of the identified hotels were not built at the time of the allegations.

48. Second, no hotel allegations were included amongst the initial allegations of abuse.

49. Third, [JR] clearly identified with precision the first hotel in which abuse took place, which turned out to be an impossibility.

1. Fourth, when confronted with information from the investigating officer that the first hotel identified could not possibly be correct, [JR] proffered what she perceived to be plausible alternatives.

2. Fifth, one of the plausible alternatives was proved to be implausible.

3. Sixth, under cross-examination, a further suggested plausible alternative was effectively abandoned by [JR].

4. Even if one were to accept, for arguments sake, the explanation proffered by [JR] to account for the impossibilities and defects in this evidence, the vice remains nonetheless. [JR]’s credibility and reliability have been adversely impacted. The ultimate position adopted by [JR] is that due to her naivety, she does not know the hotels where the abuse occurred. An acceptance of this explanation is capable of supporting the adverse finding that [JR] was prepared to readily incorporate unknown details into her account of the offending. This readiness to tailor her evidence, self-evidently, is problematic to an assessment of [JR]’s reliability. However, the difficulty is compounded by the apparent willingness of [JR] to alter or modify her position when informed by the investigating officer that her version cannot be factually correct. This demonstrates a willingness to tailor a version of events to potentially achieve a desired outcome.

5. The apparent willingness of [JR] to revert to the position of simply not knowing the hotel or hotels involved when confronted with the impossibility of her assertions is also concerning.

6. This aspect of the evidence has adverse implications on the reliability of [JR]. It also has adverse implications on an assessment of [JR]’s credibility. It is demonstrative of a willingness to insert information now admittedly unknown by [JR] into her narrative in an apparent attempt to bolster detail and lend credibility to her allegations. Further, it is demonstrative of a willingness on the part of [JR] to adapt a version given when provided with information contrary to that previously stated.

7. The problems that arise on this aspect of [JR]’s evidence are not peripheral. They undermine her account of abuse occurring at the hotels. They go to the heart of an assessment of the reliability and credibility of [JR]’s evidence, upon which the prosecution case relies.

8. Even if [JR] genuinely believed she was abused by the accused at the CBD hotels, this aspect of the abuse did not feature in her initial disclosures. [JR]’s ultimate position was that she did not know the hotels where the abuse took place. Against that background [JR] was prepared to invent and then modify details to support her account. These inconsistencies and a willingness to invent detail is significantly destructive to the prosecution case.

   Statements by [JR] to Dr Gupta

9. Agreed Facts [8]-[12] set out details relevant to a comprehensive mental health assessment conducted on [JR].

10. It was submitted that the contents of Dr Gupta’s report following the assessment revealed a number of inconsistencies, including:

    ·       the age at which [JR] suffered sexual abuse;

    ·       the number of perpetrators of the sexual abuse; and

    ·       the identity of the abusers.

11. The relevant details of this evidence include the disclosure to Dr Gupta wherein [JR] stated she was 13 when the abuse started, that she was abused on multiple occasions by multiple people and that some of the offenders were known and some unknown.

12. It is to be noted the Agreed Facts state that Dr Gupta’s usual practice is to record what was said during an assessment as accurately as possible.

13. A further Agreed Fact was introduced into evidence (Exhibit D33) which reveals:

    In an affidavit sworn by [JR] dated 4 March 2022 at paragraph 4, she says the following:

    I have not been the victim of any other sexual offending in my life. [The accused] is the only person who has sexually offended against me.

14. Under cross-examination, [JR] denied stating to Dr Gupta that she was abused from 13 to 16 years of age. [JR] denied stating that she was abused by multiple people on multiple occasions. [JR] denied stating that some of the abusers were known and some unknown.

15. Where there is conflict between Dr Gupta and [JR], I prefer the version proffered in the Agreed Facts that encapsulate the version of Dr Gupta. The contents of the Agreed Facts are uncontested. The detail as to the records of Dr Gupta in the Agreed Facts, coupled with the uncontested approach to Dr Gupta’s accurate record making leaves no room for ambiguity.

16. I have carefully considered the submissions of counsel on this topic in relation to whether any inconsistency has been proved and if so, the significance of any inconsistency.

17. I do not accept that the suggested inconsistencies can be explained away by effectively being lost in translation. It follows that I find [JR] made the identified statements to Dr Gupta. Therefore, they are to be considered as prior inconsistent statements.

18. These inconsistencies are not peripheral in nature. They go to matters of significance: when the abuse started, how long the abuse persisted and to the identities of some of the abusers, if indeed that was ascertainable. It also proves an inconsistency in that [JR] previously stated her only abuser is the accused.

    [JR]’s change in circumstance

19. On [JR]’s version, within a week of first contacting a complete stranger more than 20 years her senior, by chance, via telephone, she left her home at night, walked to the end of her street, got into the stranger’s car and shortly after was the victim of a serious sexual offence.

20. [JR] explained that each time sexual contact occurred, she felt disgusted, ashamed, mortified, nauseous and dirty. She explained her apparent readiness to repeatedly meet with the accused notwithstanding these feelings of repulsion was that she was exposed to violence at her family home. Whilst this may provide some explanation for her desire to escape whilst still living at the family home, the force of the explanation dissipates once [JR] moved out of home. There is some discrepancy on the evidence as to when this took place. However, given the evidence of [JR] combined with Agreed Fact 7 of Exhibit P16, it would seem that [JR] was living with [JG], a teacher at her school, by early 2003. On this basis, [JR] confirmed she met with the accused on many occasions well after she had moved away from the family home. In those circumstances, the explanation of needing to flee thereafter is questionable.

    Identity of male visitor at Doecke Road

21. Evidence was given by [JR] and [JB] about a brief conversation [JB] had with an unknown male in 2002 and 2003. [JR] described the man as being about 40, closer to her height (5 foot 3 inches, 160 cm), with a more olive complexion than hers. [JR] stated that the male may have made a comment about coming to see [JR]. When [JB] ordered the male to leave the property, he called [JB] a ‘fucking bitch’.

22. [JR] gave evidence that the accused told her that he told [JB] to fuck off.

23. The accepted limitations of [JB]’s memory, the discrepancy in the description of the height of the male when one considers the accused is considerably taller (5 foot 10 inches, 182 cm), and the possibility of contamination between [JB] and [JR] about the conversation, this combination of circumstances suggests against drawing a positive conclusion that the accused was the male visitor.

    The IT evidence

24. Much of the evidence led at trial related to the likelihood or otherwise of the technical capability to live-stream sexual activity alleged to have taken place between [JR] and the accused. As previously stated, [JR] alleged that the accused would engage in sexual activity and live-stream this activity to an audience using both his and her electronic equipment. This has said to have taken place at three premises.

25. Whilst I accept that there are no records of internet connections to each of the residences, this is not determinative of the issue. It seems to be common ground that the equipment required to facilitate live streaming existed at the relevant time, and the dispute appears to be focussed on whether the technology at the time was capable of performing the suggested functions.

26. Ultimately, I am satisfied that the necessary infrastructure (dial up internet), equipment (computer and webcam) and technology (streaming program) existed at the relevant times. This means that what is alleged by [JR] was possible, with the caveat that the majority of users for this type of communications were educational (e.g. Universities) and corporate entities. Domestic use is certainly not excluded. However, it is apparent from the expert evidence the quality of the streaming would be very poor by contemporary standards.

27. Whilst the capability to live-stream existed at the time, the question still remains, is the complainant’s evidence credible and reliable beyond reasonable doubt? The existence of a possibility that some form of live streaming was capable at the relevant time is far from being determinative of the primary issue at trial.

    Additional matters

28. The prosecution has correctly identified a number of topics that were not in dispute. They include, but were not limited to:

    1.      That a form of ‘relationship’ or association was brought into existence between [JR] and the accused without any previous connection;

    2.      The accused picked up [JR] from her home-town on at least one occasion;

    3.      The accused, at some stage, had a green utility;

    4.      The accused had driven a taxi at some relevant time;

    5.      The accused had acted as a guarantor for [JR] at the Jeffrey Street rental property; and

    6.      That the mother of the accused lived near Blackwood High School.

29. Whilst these matters were not in dispute, they provide limited assistance determining the primary issue at trial, that is whether two or more unlawful sexual acts took place. This evidence can be neutrally explained by the existence of some form of relationship between [JR] and the accused, which is not in dispute. It is undoubtedly odd, if not suspicious, that two strangers aged 15 or 16 and 38 spontaneously formed some type of relationship. However, without an acceptance beyond reasonable doubt of the complainant’s evidence regarding the particularised acts of sexual abuse, the suspicions attaching to the relationship are not sufficient to prove the charge.

30. Notwithstanding there was nothing in the demeanour of the complainant in the course of examination-in-chief or cross-examination which caused me any concern about her credibility or reliability, it is vital that demeanour and presentation not be given undue weight in an assessment of honesty and reliability. Any determination of those issues can only be made having regard to the whole of the evidence, the criticisms raised by defence in the course of the trial, and whether there is support for [JR]’s evidence. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of the complainant’s evidence, it is trite to say that the prosecution case stands or falls on an acceptance of her evidence as to whether the sexual acts took place, beyond reasonable doubt.[578]

    [578] Murray v The Queen (2002) 211 CLR 193 [57].

31. On the whole of the evidence, in particular given the inherent unlikelihood as to aspects of [JR]’s evidence, the willingness of the complainant to tailor her evidence when confronted with objective problematic issues, inconsistencies as to matters of significance, including but not limited to the inconsistencies arising from [JR]’s disclosures to Dr Gupta, the forensic disadvantage suffered by the accused, and bearing in mind the very high burden that rests upon the prosecution, I am left with a doubt that the accused intentionally committed two or more unlawful acts during the course of the relationship with the complainant.

32. I find the accused not guilty.