R v M - [2022] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M
Criminal Trial by Judge Alone
[2022] SADC 76
Reasons for the Verdict of her Honour Judge Kudelka
24 June 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with maintaining an unlawful sexual relationship with a child (count 1) and in the alternative, indecent assault (count 2). The complainant is his half-sister. The accused and the complainant have the same mother but different fathers. At the time of the alleged offending between May 2018 and December 2020, the accused was aged 18 to 20 years old and the complainant was aged three to six years old. The prosecution led forensic evidence in support of the unlawful acts which were allegedly committed on 6 December 2020.
Verdict: Guilty of count 1
Evidence Act 1929 (SA) s 13BA, s 34M; Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v Schulz (2016) 126 SASR 476; R v Ahmadi, R v Hosseini, R v A,N; R v M,A (2018) 131 SASR 64, applied.

R v M
[2022] SADC 76
Criminal

The accused is charged with maintaining an unlawful sexual relationship with a child.[1] The complainant is his half‑sister. The accused and the complainant have the same mother, but different fathers. At the time of the alleged offending, the accused was aged 18 to 20 years old. The complainant was aged three to six years old.
[1]Section 50(1) of the Criminal Law Consolidation Act 1935.
It is alleged that between 30 May 2018 and 7 December 2020, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with her, namely (a) rubbing her genital area with his penis on more than one occasion and (b) touching her genital area on more than one occasion. It is alleged that the offending occurred in the complainant’s bedroom in the family home.
In the alternative, the accused is charged with aggravated indecent assault. It is alleged that on 6 December 2020, he indecently assaulted the complainant by rubbing her genital area with his penis. The offence is aggravated because she was under the age of 14 years at the time of the offence.
The complainant alleged that, from the time she was in kindergarten, the accused would spit on his fingers, rub it on her vagina and rub his penis on her vagina. It always occurred during the day in her bedroom, either on the floor or on her bed. It happened every day, including 6 December 2020.
The alleged offending came to light on 6 December 2020.
The accused elected for trial by judge alone.
The elements of the offences
The prosecution has the onus of proving each element of the offence beyond reasonable doubt. The offence of maintaining an unlawful sexual relationship with a child has four elements:
(1) The accused was an adult during the relevant period.
(2) The complainant was a child during the relevant period.
(3)The accused knowingly maintained a relationship with the child during the relevant period.
(4)Whilst that relationship was in existence, the accused committed two or more unlawful sexual acts with the child.
An unlawful sexual act means any act that amounts to a sexual offence such as an indecent assault (an assault that occurs in circumstances of indecency which involves a sexual connotation). As a matter of law, the complainant (a child) was incapable of consenting to any such act.
There was no dispute as to elements 1, 2 and 3. The issue at trial was whether the prosecution had proved beyond reasonable doubt that two or more unlawful sexual acts had in fact occurred. The accused gave evidence denying the commission of any unlawful sexual acts.
The alternative offence of aggravated indecent assault has three elements:
(1)The accused assaulted the complainant.
(2)The assault occurred in circumstances of indecency, which must include a sexual connotation.
(3)The indecent assault was aggravated, that is the complainant was under the age of 14 years at the time of the indecent assault.
Similarly, there is no dispute that the allegation would amount to an aggravated indecent assault. The issue at trial was whether any such act had in fact occurred on 6 December 2020.
Proof
The prosecution has the burden of proving an offence. There is no onus on the accused to prove anything. The accused has the presumption of innocence in his favour. The prosecution must prove each element of an offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly, or even probably guilty.
Evidence not in dispute
The prosecution called the complainant, her mother, her father, the accused’s friend (Mr CS), a forensic scientist (Ms Windram) and two police officers (Brevet Sergeant Cliffe and Detective Joanne Rochow) and tendered the police interview with the accused. The interview of the complainant’s twin brother at the child protection service on 21 June 2021 was admitted as his evidence pursuant to s 13BA of the Evidence Act 1929.[2] There were six agreed facts.[3]
[2]Exhibit P9; transcript is an aide memoire, MFI P9A.
[3]Exhibit P12.
The accused gave evidence in his defence. He denied the allegations. He was not obliged to give evidence. He had the right to remain silent and has a presumption of innocence in his favour. I have considered his evidence in the same way as the evidence of the other witnesses but on the basis that by giving evidence, the accused took on no onus of proof.
There was no dispute that during the period of this alleged offence:
·The accused and the complainant were living in the same house with their mother, the complainant’s twin brother and the complainant’s father.
·The mother had three children from a prior relationship, including the accused. The accused’s older brother lived interstate. His younger sister (by about six years) came to stay with them every second weekend and for half the school holidays.
·The house was on a large farming property of over 900 acres. There was further land nearby of about 465 acres.
·The complainant’s father worked on the farm. The complainant’s mother helped on the farm from time to time. There were times when the accused was at home alone with the twins and had the responsibility of looking after them.
·The complainant made a complaint to her mother that the accused touched her vagina, but the complaint was dismissed because the mother was in the room and did not see the accused touch the complainant’s vagina.
There was no dispute that on the evening of 6 December 2020:
·These allegations came to light after the complainant’s father noticed that both the accused and the complainant had changed their trackpants during the day. The mother spoke to the complainant about why she had changed her pants. The complainant then disclosed these allegations.
·The mother threatened the accused with a knife during which he denied the allegations.
·The complainant’s father retrieved the complainant’s trackpants and underwear from the laundry basket in her room and the accused retrieved his trackpants and handed them to his mother. At some stage, the complainant’s father put the clothes in two separate bags.
·The complaint’s father drove the accused away from the home to stay with a friend.
There was no dispute that on 7 December 2020:
·At 3.00 pm, the allegations were reported to the police by the mother and the complainant’s father.
·At 6.10 pm, crime scene examiners attended at the house. The fitted sheet on the complainant’s bed fluoresced under a polilight and was seized.
At Forensic Science SA, three areas on the sheet gave a positive reaction to a presumptive test for semen. Two of those areas were sampled. Sperm were observed on microscope smears prepared from the two sampled areas, which confirmed the presence of semen in those samples. A mixed DNA profile from three contributors was obtained from each sampled area. On the assumption that the complainant is one of the contributors, there is extremely strong support for the accused being another contributor.
There were also 16 hairs recovered from the fitted sheet, most appearing medium/dark brown. There were three coarse ribbon like and crinkled hairs, possibly pubic. None of the hairs were submitted for examination.
·Police seized the two bags of clothes.
The complainant’s underpants were examined at Forensic SA. Five areas on the rear of the underpants gave a positive reaction to a presumptive test for semen. Two of five areas were sampled. Sperm were observed on microscope smears prepared from the two cuttings of the underpants, thus confirming the presence of semen in those samples. A mixed DNA profile from three contributors was obtained from each of the two sampled areas. On the assumption that the complainant was one of the contributors, there is extremely strong support for the accused being one of the contributors.
The inner crotch gave a negative result to a presumptive test for saliva. A mixed DNA profile from two to three contributors was obtained from a tape‑lift of the inner crotch. On the assumption that the complainant was one of the contributors, there is very strong support for the accused being one of the contributors.
·At 7.37 pm, the accused was arrested. He was interviewed by the police and denied the allegations.
There was no dispute that on 8 December 2020:
·The complainant underwent a forensic medical assessment at the Child Protection Service at 9.30 am conducted by paediatrician, Dr Patrina Lee. A visual examination of her ano‑genital region was undertaken by Dr Lee. No injuries were observed. A normal external ano‑genital examination is a neutral finding which neither confirms nor refutes any allegation of sexual contact with the complainant in that area.
·Wet and dry swabs were taken from the labia majora and the labia minora/vestibule. At Forensic SA, sperm were not observed on microscope smears prepared from the swabs. There was no male DNA detected on the swabs and so the samples were not analysed further.
There was no dispute that on 9 December:
·Police attended the house and seized a pair of navy blue underwear with a white and blue stripe around the waistband from a pile of clothing on the floor next to a washing basket in the accused’s bedroom. The underwear was placed into an evidence bag, conveyed to the Murray Bridge Police Station and booked into the Police Property Management System. The underwear was not subjected to analysis at Forensic Science SA.
The issues at trial
The main issue at trial was whether the prosecution had proved beyond reasonable doubt that any unlawful sexual acts did in fact occur. The accused denied committing any such acts.
The prosecution relied upon the forensic evidence of sperm/semen on the complainant’s fitted bed sheet and on her underpants to support her allegation that unlawful sexual acts occurred on 6 December 2020, and generally. A significant issue at trial was whether the prosecution had excluded other possible (innocent) explanations for the forensic evidence.
The complainant’s evidence
The complainant’s evidence comprised an interview with Ms Candice Jones from the Child Protection Service on 18 December 2020 (the CPS interview) [4] when the complainant was six years old and evidence which was pre‑recorded on 20 December 2020 when the complainant was seven years old.[5]
[4]Exhibit P2.
[5]Exhibit P3.
I determined that she could give unsworn evidence.
The CPS interview
Ms Jones asked the complainant to tell her what she had come to talk about. The complainant replied that the accused ‘spits on his finger, rubs it on my vajayjay and rubbed his willy on it and I’m always scared … hurt people’.[6] She said, ‘he gets it on my bed that makes it wet’.[7] She said, ‘I don’t like it. So I asked [name of accused] to do it … place but he never ever do it in different places’.[8] She said that when the accused spits and rubs it on her, it happened more than one time. It started off when she was in kindy. He had rubbed his willy on her more than one time. She said when he rubs his willy on her, it hurts.[9]
[6]MFI P2A, page 7.
[7]MFI P2A, page 8.
[8]MFI P2A, page 9.
[9]MFI P2A, page 10.
I consider that the complainant then went on to describe what happened on 6 December 2020.
She said she was playing outside one time with her twin brother, playing chefs outside in her big house. The accused told her to come inside. He told her to lie on her back on her bed. He rubbed his willy a bit on her. She said stop, but he did not listen, ‘he never listens to me’.[10]
[10]MFI P2A, page 12.
She did not know how it got started, he just did it. The first thing he did was ‘spits and rubs on my vajayjay’.[11] He then ‘rubbed his willy on my vajayjay’.[12] She then said he stopped and ‘said some he lies to me’.[13] She said ‘when he does it, he says he’s gonna get me the stuff I want but he never ever gets it’.[14] She went on to say the stuff was toys or other stuff that she wants for her birthday.
[11]MFI P2A, page 12.
[12]MFI P2A, page 13.
[13]MFI P2A, page 13.
[14]MFI P2A, page 13.
When he rubbed his willy on her vagina, only her pants were off, not her top. He pulled them off. That is when he put spit on and rubbed his willy on, then he pulled them back on. He dried them first, but not very nicely. He dried them ‘cos some gunk got my pants wet’.[15] She said he did not dry his pants so we both changed our pants.[16] He did not say anything. She said ‘stop, I don’t like it’.[17] She said her pants were wet with spit and the willy. He rubbed his willy on her, not in her.
[15]MFI P2A, page 15.
[16]MFI P2A, page 16.
[17]MFI P2A, page 18.
She said it happened every single day and named every day of the week. She said when the accused rubbed his willy on her vajayjay, it felt gross. It happened only at home. The secret is the accused rubs his willy on me. It is a secret because ‘it’s people freak out’.[18] They would freak out if they heard it because ‘it is germy’. Germs are in your private parts. They are viruses, they are bad. The accused told her to keep it a secret. He said, ‘can you please don’t tell anybody’.[19] He said people will freak out from it so keep it a secret promise. She said she promised because he said the magic word, ‘please’.[20]
[18]MFI P2A, page 25.
[19]MFI P2A, page 26.
[20]MFI P2A, page 26.
The pre-recorded evidence
In further examination‑in‑chief, the complainant said the accused did these things to her in her bedroom, sometimes on the floor and sometimes in the bed. She said, ‘I don’t like when he does that’.[21] She said she did not know why he did that. He does it in the wee part.
[21]MFI P3A, page 18.
In cross‑examination, she was asked whether she changed her pants because she got some wee on her pants. She said, ‘no, that’s because [name of the accused] wanted to put his spit on my vajayjay and it was making my pants wet. I didn’t like it at all’.[22] She said it happened at daytime. She said just her twin brother was home. When this happened the last time, her twin brother was watching his tablet or playing games in the games room. She said she did not make the story up.
[22]MFI P3A, page 23.
A complaint
The mother gave evidence about an occasion when the complainant was about four. The mother had been in the pool with the complainant, the complainant’s twin brother and the accused. After they got out, the mother helped the twin brother get changed. The accused offered to help the complainant change.
When the mother finished changing the twin brother, she walked into the complainant’s bedroom and saw the accused helping the complainant put on her pants or shorts. The complainant turned around and said that the accused touched her vajayjay. The mother thought that’s not quite right because she was in the room. She said to the complainant, ‘you know you’re not allowed to say things like that if it’s not true’. The complainant had a bit of a giggle. The accused turned around and said ‘Mum, you know me, I wouldn’t do that’. The mother did not think anything of it.
The accused gave evidence that he was getting the complainant changed. His mother walked in when he was putting the complainant’s pants on. The complainant then said that he had touched her. Straight after that, the complainant said she was joking. Either he or his mother said to her that she cannot do that because he could get in really big trouble.
The two main differences in the accounts were the timing of the occasion and the question of whether the complainant said she was joking. The mother thought the occasion was when the complainant was about four (2018/2019). The accused believed the occasion was in 2020. The accused gave evidence that the complainant said she was joking. The mother gave evidence that the complainant did not say that.
The complainant did not give evidence about this occasion.
The events of 6 December 2020
The complainant’s allegations came to light on Sunday, 6 December 2020.
On that morning, the complainant’s father left the house early to work on the farm. The mother was at the house for most of the morning. She may have gone out for about five or 10 minutes to get a coffee in town. The complainant and her twin brother were home, as were the accused and his friend, Mr CS, who had stayed overnight.
The complainant’s father came home for lunch. By that stage, Mr CS had left. After lunch, the complainant’s father went back out to work on the farm.
At some stage during the afternoon, the mother headed out to the separate part of the property to check the water pump. That was done every day, particularly if it was a hot day. She asked the accused to keep an eye on the twins. The complainant was in the loungeroom on the tablet and her twin brother was on the Xbox. The accused said that was fine. As she was leaving, the accused asked her if she wanted to take the twin brother. She said, ‘no, because it’s hot’.
The mother thought she left at about 4.00 pm and she was away for about an hour. The complainant’s father thought he arrived back in the house from a day working on the farm at about 4.00 pm and the mother was already home. The accused told the police that his mother left at about 5.00 pm and was away for about 20 minutes. He later agreed she could have been away for 45 minutes to one hour. During his evidence he could not remember what time his mother left to go to check on the water pump but thought she was gone about ‘30 or something minutes’.[23]
[23]T162 – 3.
It is not possible to be precise about what time the complainant’s mother left the house to check on the water pump, but I am satisfied that it was at some time during the afternoon and that she was away for up to an hour. The accused did not dispute that he was left alone at the house with the complainant and the twin brother.
The prosecution alleges that during the mother’s absence the accused engaged in unlawful sexual acts with the complainant on the complainant’s bed. He spat on his fingers, rubbed her vagina, rubbed his penis on her vaginal area and ejaculated onto the fitted sheet on her bed.

The complainant’s twin brother gave unsworn evidence that he went out to look for his parents and could not find anyone. He rode his bike around and then his big sister let him ride his motorbike before returning inside. The accused and the complainant were playing in the complainant’s bedroom. They did not let him in. He tried sneaking in, but they saw or heard him because he stepped on the squeaky, screechy floor. He saw them hiding behind the big teddy bear with their clothes on. They said ‘shoo’ and then the accused chased him out of the room. He went to the games room and climbed over the couch and ‘rode his bike too fast’ for the accused to catch him.
The mother gave evidence that when she got home, she started to make honey biscuits for Christmas. The complainant was trying to help her measure honey.
The mother and the complainant’s father gave evidence that sometime after the complainant’s father got home, he told the mother that both the complainant and the accused had changed their trackpants. The complainant’s father gave evidence that he noticed the accused had changed from wearing grey trackpants to black trackpants. After dinner, he noticed that the complainant was wearing trackpants different to the ones she had on in the morning.
The mother gave evidence that what her partner said had an impact upon her because when she was younger, she was sexually abused. Something clicked in her head, and it did not seem right.
She said she stormed down the passageway and told her husband to take the twin brother outside. She knelt near the complainant in the loungeroom and tried to talk to her. She said the complainant did not know what was going through her head, no one did.
A complaint
The mother gave evidence that she told the complainant that you can tell mummy anything. The complainant said, ‘I can’t tell you anything’. The complainant had a blanket and tried to keep covering her head. The complainant’s mother repeated that she can tell her anything. The complainant said, ‘I’ve got a bad secret’. The mother said, ‘you are not meant to keep secrets’. The complainant said, ‘mummy, I don’t want to tell you because it will freak you out’. The complainant’s mother said, ‘it doesn’t matter if it freaks mummy out, mummy needs to know’. She said, ‘look, mummy might get upset, you can tell mum anything, that’s what mummys are for’.[24]
[24]T65.
The mother gave evidence that the complainant said that the accused touches her vajayjay. He spits on his fingers and touches it and rubs her and then he rubs his willy on her vajayjay. The accused makes her touch his willy and she does not like it and it hurts to pee.[25] The complainant said it happened in her room. The complainant said she loved the accused and the accused loved her.
[25]T66.
After the complaint
The complainant’s mother gave evidence she picked the complainant up and ran into the mother’s bedroom because her partner was in there with the twin brother. She told her partner to listen to what the complainant had to say. She headed for the kitchen.
The complainant’s father gave evidence he came out of the bathroom to find the mother outside the door with the complainant. The three of them went into the parents’ bedroom and the complainant was asked to tell him what she had just told her mother. After that conversation, he went down to the kitchen to hide the mother’s gun case keys because she was ‘rather heated and agitated about what had been said’.[26] He said it was a preventative measure in case things escalated.
[26]T101.
Both gave evidence that the mother went into the kitchen and got a knife. The mother gave evidence she was going to hurt the accused any way she could. The accused was coming in the sliding door. She pushed him up against the wall and was saying things like ‘how could you? That’s your sister, how could you? You know what happened to me when I was younger.’ She said she had the knife near his stomach and then near his eye because she just wanted to hurt him. The complainant’s father took the knife from the mother. The accused was told to get out. The accused was saying he had not done anything.
The complainant’s twin brother said his mother held a knife to the accused because she was angry and sad following the complainant telling his mother something about what the accused had been doing. He turned off the farm simulator game that he was playing and then came over to where the complainant was hiding under a quilt because he heard yelling. He saw his mother get a knife, which was scary and caused him to go back to the games room to get a quilt.
Things calmed down a bit and they went out into the porch area where people sat down. The complainant’s father retrieved the complainant’s trackpants and underpants from the washing basket in the complainant’s bedroom. The accused produced his trackpants to his mother. The complainant was under a blanket repeating ‘I’m not lying’.
The complainant’s father rang his sister for some advice. He then drove the accused to meet up with the accused’s friend so that the accused could stay away from the house for a few nights.
There were two matters which were in dispute about these events.
The first arose from the accused’s evidence that when they were outside after the knife incident, the complainant said that she was joking. The mother denied hearing the complainant say that. The complainant’s father had a vague memory of something like that being said but did not hear the complainant say it. He thought the accused might have said, ‘Look [the complainant] just said this, why are we still arguing’.[27]
[27]T113.
The other matter about which there was some discrepancy was the order in which the clothing belonging to the accused and the complainant was produced to the mother. That order was relevant to the forensic evidence and the possibility of DNA transfer between the items.
Forensic evidence
Brevet Sergeant Cliffe attended at the property on 7 December 2020 at 6.10 pm. He took photographs[28] and seized various items including the pink fitted bed sheet from the complainant’s bed, the complainant’s trackpants/underwear and the accused’s trackpants.
[28]Exhibit P1.
The sheet and the complainant’s underpants were examined at Forensic Science SA. The results (as set out at [17] above) were not in dispute. The main issue was whether the prosecution had excluded the possibility of an innocent explanation for the presence of sperm/semen on the sheet and complainant’s underwear.
Police interview of the accused
The accused was arrested and interviewed by the police on 7 December 2020.
The accused told the police about the first time the complainant alleged he had touched her vagina. He said after their mother told her not to say that, the complainant looked down, said she was joking and walked out of the room.
In relation to the complainant’s disclosure on 6 December 2020, the accused suggested that the complainant might have overheard him talking with his mate, Mr CS, ‘coz we dirty minds sometimes’.[29]
[29]MFI P10A, page 5, Q38.
He said he was alone with the twins yesterday whilst the mother was out checking on the tank.
He told the police that he changed his pants because he had worn them all day, had a really bad night and got a ‘little bit of pee’ on them. They went into his washing basket in his room. He gave those trackpants to his mother when she asked for them.
He said there may be semen on his trackpants that he handed to his mother because ‘one night I had fun in them, coz they’re basically my jarmy pants’.[30] He said he had not masturbated for a while, about six weeks ago, because he ran out of data and so could not look at porn.
[30]MFI P10A, Q274.
He said he had spoken to the complainant about keeping secrets a couple of times, but in relation to things like when she got a cookie that she was not allowed to have or he gave her a lolly, but not her brother.
He said when his mother accused him yesterday, ‘I said I don’t know where she got that from coz I would never do that coz she’s my sister and I love her and I wouldn’t do that’.[31]
[31]MFI P10A, Q139.
He said sometimes the complainant wants him to lie in her bed. She will be under the quilt, and he lies on top of the quilt, watching a movie with her. When she has fallen asleep, he slowly walks out.
In relation to bed sheets, he said that his mother keeps them separate in white cupboards, but he would ‘usually pinch a couple of other people’s because I run out’.[32] He was responsible for his own washing. He said they would not find semen on the complainant’s sheets but would probably find them on his sheets. It was possible that his sheets could go on someone else’s bed in the house because he puts them back in the cupboard when they are washed. He last changed his sheets about five weeks ago because he used to have bright pink ones on and then he changed them to a black one.
[32]MFI P10A, Q240.
Defence case
The defence case was that the accused did not commit any unlawful sexual acts upon the complainant. The prosecution could not exclude his denials/evidence as a reasonable possibility, nor could the prosecution exclude innocent explanations for the forensic evidence.
The accused gave evidence that he looked after the twins a couple of times per week. Most of the time he played with the complainant’s twin brother. Sometimes, in relation to the complainant, he would ‘snub her off and she gets annoyed’.[33]
[33]T159.
He looked after the twins on 6 December. He thought that while the twin brother was on the Xbox, he would play with the complainant because she gets upset when he is not playing with her much. They started playing with dolls and throwing the big teddy around in her bedroom. The twin brother came in, so they hid, told him to ‘shoo’ and then the accused started chasing the twin brother.
When his mother got home, he went out for a smoke. After that, his mother started accusing him, holding a knife. He told his mother that he would not do that because she was his younger sister, and it is gross. After the complainant’s father took the knife from his mother, they were outside at the table. The complainant was out there, under the blanket.
His mother told him to grab his pants, so he did. His mother checked the complainant’s pants, then told him to give her his pants. She felt them and said his were a little bit wet. At this stage, the complainant was saying ‘I’m not lying’. The complainant also said that she was joking, she had wet herself. The accused asked his mother whether she heard that, and his mother said no. Then the complainant went back to saying, ‘I’m not lying’.
He had no idea why his semen/sperm was on the complainant’s sheets. He put the complainant’s pink fitted sheet on his bed because he wanted to annoy the complainant’s father and because he ran out because he did not do his washing very often. He would masturbate/ejaculate in his bed. He had masturbated when he was wearing the trackpants that were seized by the police. He had his grey trackpants on for a couple of days before this incident. He had worn them to bed the night before. He got a ‘bit of pee’ on those pants around lunch time on 6 December, after his friend, Mr CS, left. He had a knot in his pants that he could not get undone in time. He got a little dribble of pee on his pants, so he just ripped them down. That is why he changed out of his grey trackpants. He had no idea when the complainant changed her pants that day.
Summary of prosecution submission
The prosecution submitted that the complainant’s evidence was simple, compelling and in terms which were consistent with her age. She described the acts as well as her feelings and thoughts at the time of these acts. She was a child who had never expressed to her parents any understanding or curiosity about things of a sexual nature. Her schooling was limited to knowledge about stranger‑danger. She described times with her brother which demonstrate that she loves him and has good memories of other times together. She could talk about the good and the bad. Her evidence about the frequency of the unlawful sexual acts (‘every day’) should be considered in the context of a long interview during which she became less inclined to talk. She was simply trying to convey that it was a regular event.
The accused had opportunities to commit the sexual acts. There were times when he was left alone with the twins. His offending was risky. There was the twin brother in the house. He was not caught out by the twin brother nor did the complainant say anything. He could have a fair degree of confidence.
The forensic evidence supports the complainant’s allegations about the sexual acts on 6 December 2020. She described getting ‘gunk’ on her and that they both needed to change their trackpants because they were not nicely dry. There was semen and sperm on her fitted bed sheet and on her underpants. The accused did change his trackpants that day.
There is some confusion about the order in which the clothing was produced to the mother. If there needs to be a preference, then the complainant’s father may be preferred because the mother was in a very heightened emotional state at the time which may have impacted upon the reliability of her memory of such a detail.
The absence of male DNA on the forensic swabs of the complainant’s genital area is explained by the passing of 48 hours between the alleged acts and the sampling and the fact that the complainant must have urinated and wiped herself during that time.
The possibility of secondary transfer of semen/sperm from the accused’s trackpants to the complainant’s underpants can be excluded. The possibility that the accused’s semen/sperm is on the complainant’s fitted bed sheet because he masturbated in his bed when her fitted sheet was on his bed and then the sheet was placed back on the complainant’s bed after being washed can be excluded.
The accused was not a sophisticated witness. There are aspects of his account which are not truthful. He lied to the police and there are inconsistencies between his evidence and what he said to the police. He did not tell the truth about watching pornographic videos with Mr CS that day, about not being alone with the complainant that day, about why he changed his pants and about the complainant saying she was joking. Aspects of his evidence are contradicted by his mother, the complainant’s father and his friend, Mr CS.
Summary of defence submission
The defence submitted that the evidence of the accused was compelling in its simplicity and the preparedness to acknowledge his inability to remember things, even if that was to his own detriment. He is not sophisticated. He does not have ‘rat cunning’.
The prosecution cannot exclude the reasonable possibility that the accused’s DNA was on the complainant’s fitted sheet because he used the complainant’s sheets in the past on his own bed. His evidence that he did that to annoy the complainant’s father and his explanation to the police that sometimes he would run out of sheets are compatible, not inconsistent. His evidence about rarely doing washing, fits in with the evidence of his mother and the complainant’s father.
The accused has not lied to the police. He has been honest. He contradicted himself about viewing the pornography on the friend’s phone because he cannot remember. He was unable to continue in his evidence at the point when he said that he did not commit this offence. They were not crocodile tears.
His statement to the police that he was not alone with the complainant the day before was literally correct because her twin brother was always in the house.
Contrary to the prosecution submission, he was embarrassed talking about various topics during the police interview, he said as much.
His sperm/semen could have transferred from his trackpants to the bed sheet when he was on the bed sheet with the complainant on 6 December as described by the twin brother. The accused gave evidence that he masturbated at some stage earlier when wearing those pants and did not change his pants. Another explanation that cannot be excluded is that he has masturbated on the sheet when it was on his bed. On that scenario, the sheet has either gone back on the complainant’s bed unwashed or the washing of that sheet has not removed his sperm/semen by the time it was then back on the complainant’s bed.
In addition, the prosecution cannot prove that the accused was in fact the source of the sperm/semen on the sheet. There are multiple contributors to the DNA mixture.
In relation to the complainant’s underpants, the sperm/semen could have been transferred by contact with the sheet. There is no evidence that there needs to be a large quantity of sperm/semen for a secondary transfer. The underpants may also have been contaminated by the mother’s handling of both sets of clothing after they were retrieved and handed to her on the evening of 6 December.
It is not insignificant that no male DNA was located on the forensic swabs taken from the complainant’s genital area. The allegations are that the accused spat on his hand and then rubbed her vagina and then rubbed his penis around that area.
The complainant may appear to be compelling but there were some aspects of her evidence which raise concern. There is some evidence that she might get a bit upset if the accused was playing more with her twin brother. There is also evidence from her that her father would get cross if she changed her clothes. They may not rise to the level of a motive but are matters of general concern. The accused has given evidence that she said, ‘I’m joking’. The complainant contradicted herself about whether the accused had his pants on or off. She said it happened every single day which is incompatible with the evidence about the accused’s opportunity and cannot be explained away by her being tired during a long interview. Even though the accused had the opportunity in theory, the time frame for each occasion is variable and the alleged behaviour is very risky, particularly because the twin brother is always in the house.
Consideration
I have considered the credibility and reliability of all witnesses, including the accused.
Assessment of prosecution witnesses
I found the complainant to be a compelling witness who gave evidence in a manner consistent with her age.
I have not approached the assessment of her evidence by asking the question, ‘why would she lie’. The prosecution must prove that her evidence is truthful and accurate. It is not for the defence to provide a reason why the complainant might be lying. On behalf of the accused, Mr Coates referred to two pieces of evidence. First, the evidence that the complainant might get a bit upset if the accused was playing more with her twin brother and second, that she said her father would get cross if they were changing clothes. Mr Coates did not seek to elevate those matters to a specific motive to lie but raised them as matters of general concern.
I do not consider that either or both of those matters have motivated the complainant to make up these allegations. Nor do those matters give me any concern about the complainant’s allegations. She did not present as a child who was trying to get her half‑brother into trouble, trying to avoid getting into trouble herself for changing her clothes that day or seeking attention. To the contrary, she said during her evidence that she loved her brother. For example, when she described playing chefs with him, she said ‘I love that part, I love that memory a lot, he’s so funny’.[34]
[34]MFIP2A, page 12.
The absence of a motive to lie does not mean that the complainant was telling the truth. It is neutral. A person may tell lies for a reason or reasons which may never be known.
I have scrutinised the complainant’s evidence with care and considered it in the context of all the other evidence in the case, including the evidence of the accused. I have borne in mind that her evidence was unsworn evidence.

I do not consider that her evidence about the daily occurrence of the unlawful sexual acts was reliable. I agree with Ms Dunlop’s submission about that evidence. The complainant’s evidence should not be taken literally. She was six years old at the time of the interview and, in my view, consistent with her age, she was conveying that the offending was happening regularly.
There were two disclosures made by the complainant. The first disclosure (the accused touched my vajajay) was made during the period of the alleged offending (although there was a considerable discrepancy in the evidence about the timing of the disclosure) and is referable to the unlawful sexual act/s the subject of the offence.
I consider it was admissible as an initial complaint pursuant to s 34M of the Evidence Act 1929. The mother took the complainant’s disclosure to relate to something that had just happened in the bedroom. It was dismissed by the mother because she had been in the bedroom and not witnessed any alleged touch. The accused gave evidence that the complainant said that she was joking. The mother gave evidence the complainant did not say that.
I prefer the mother’s evidence. Although the mother’s interpretation of the complaint at the time (that it was referable to an immediate assault by the accused) is not at all decisive of the question of the complainant’s consistency of conduct, I do consider her reaction at the time to be relevant, particularly in these circumstances where there has been no evidence from the complainant about this complaint. On one view, the complainant could have made up that something had just happened in the room. On another view, the complainant could have been referring to the alleged offending on a prior occasion. In the absence of evidence from the complainant about the complaint, I have decided not to place any weight upon this evidence in terms of assessing the complainant’s consistency (or inconsistency) of conduct.
I consider that the disclosure made by the complainant on 6 December 2020 is also admissible as an initial complaint in that it included information provided by the complainant by way of elaboration. The complaint to the mother was referable to unlawful sexual acts on 6 December 2020. It is not admissible for the truth of what was said. It is evidence which explains how the allegation on 6 December first came to light. I find that it is evidence of consistency of conduct by the complainant. I do not consider the mother’s questioning of the complainant detracts from the use of the evidence for that purpose.
I found the complainant’s mother to be a credible witness who was in the very difficult and unenviable position of giving evidence against her son who is charged with sexually abusing her daughter. As would be expected, she was emotional at times during her evidence. I found her to be an honest witness who was telling the truth to the best of her recollection.
I found the complainant’s father to be a credible witness. I could detect his dislike for the accused, which is understandable, given the allegations that the accused sexually abused his daughter. I do not consider that his apparent dislike adversely tainted his evidence. In giving evidence against the son of his partner who had allegedly offended against their daughter, he was in a difficult situation and his emotions were not all one way. I observed that he was doing his best to keep his conflicting emotions at bay. He was thoughtful and considered.
Regarding the events of the afternoon of 6 December, I have proceeded on the basis that his evidence is more reliable than the evidence of the mother, although the accounts do not markedly differ. The mother was in a very heightened emotional state that afternoon which I believe affects her reliability on some details. She admitted as much.
The twin brother’s account of events on 6 December was not disputed by the accused. The twin brother was six at the time he was interviewed and gave his account as would be expected for someone his age. He did refer to the presence of his big sister at the house on 6 December. If he meant the accused’s sister, then he was mistaken about that because she was not present at the house that day. His evidence does place the accused in the complainant’s bedroom during the period when the mother was out of the house.
I found Mr CS to be a credible and reliable witness. His evidence was straightforward. His evidence contradicted the evidence of the accused in some respects.
There was no dispute about the expert evidence of Ms Windram. I find she was qualified to give evidence about the forensic examination of the relevant items at Forensic SA and the DNA results. I accept her opinions.
Assessment of the evidence of the accused
The accused was 21 years old when he gave his evidence. He was nervous and said so.[35] He had never given evidence before.
[35]T171.
During his evidence, the accused struggled to understand questions and follow the line of questioning. He gave evidence that he completed year 12 but found school difficult. He did not do well with his grades. His learning was modified. He always had someone next to him to help him read and his learning at school was usually in a separate room from other students. He is now unable to read much and said his writing is terrible. His mother fills in forms for him. He feels that he had a learning disability all the way through school. He has not seen professional people about that because he does not think that will help. His teachers knew about his learning disability.
I find that he was genuinely struggling to follow some questions and the line of reasoning. He was not a sophisticated witness. He presented as someone who was concrete in his thinking.
There were inconsistencies between the accused’s evidence and his prior statements to the police during his interview on 7 December 2020. There were also aspects of his evidence which were contradicted by Mr CS, the mother and the complainant’s father.
One of the inconsistencies between the accused’s evidence and his police interview was on the topic of whether he was alone with the complainant on 6 December 2020. The accused gave evidence that he was alone with the complainant in her bedroom. His evidence was identical to the evidence of the twin brother.
When he was asked by the police on 7 December 2020 whether he was ever alone with the complainant the day before, he said he was with her twin brother too, they were playing Lego in the playroom. He said he always had her brother ‘with us’.[36]
[36]MFI P10A, pp 7 – 8.
When cross‑examined about the inconsistency, the accused said he only remembered being in the complainant’s bedroom when he was outside having a smoke last night. When asked to explain the answers he gave to the police, he said ‘Well [name of twin brother] was at the house’.
The accused did not mention to the police that he was alone with the complainant in her bedroom. The subject matter of the inconsistency is significant. In considering his explanation, I have noted that the police questions on this topic were general in nature. The accused was not asked a more specific question about whether he was alone with the complainant whilst the twin brother was somewhere else. At one level, his responses to the police were not necessarily incorrect or untrue.
In considering this aspect of his evidence, I have borne in mind that the accused was nervous when he spoke to the police and when giving evidence because both were new experiences for him and that his thinking is concrete. I do not accept his evidence that when he spoke to the police, he did not remember being alone in the complainant’s room with her. I do not accept his evidence that he only remembered the night before giving his evidence. I think he has simply adopted the version given by the twin brother. The twin brother was not questioned by the child protection service until 21 June 2021, which was in the year after the accused’s police interview. The video recording of the twin brother’s evidence was played in court during the trial. The accused gave evidence that he had not seen that video before then, but he did know some of it.[37] I consider that when he spoke to the police, he knew that he had been in the bedroom with the complainant the day before and deliberately withheld that information.
[37]T214.
The accused gave evidence about his interaction with Mr CS by the pool on 6 December 2020. His evidence was different from his prior statements to the police about that interaction. In his evidence, he diminished the role of Mr CS regarding the pornographic videos (by saying the videos were on his phone, not Mr CS’ phone) and diminished the influence that their conversation may have had upon the complainant. I think he tried his best to adapt his evidence to fit in with the evidence of Mr CS but in attempting to do so, he contradicted himself.
When the accused spoke with the police, he suggested that the complainant might have overheard him talking with Mr CS ‘coz we dirty minds sometimes.’[38] Mr CS was there for lunch, and they started talking, then it got to ‘gross conversation’. Mr CS showed him a woman who was naked. Mr CS had the pornographic videos on his phone, one was scat and in another one, ‘he spat in the girls’ ass and licked it’.[39] He said the complainant, when she was walking past, probably heard them talking. She was peeking her head through, and she came out and scared us with a roar.[40] He was not sure whether the complainant had seen the content, but they did describe what they were seeing out loud.
[38]MFI P10A, page 5, Q38.
[39]MFI P10A, page 18.
[40]MFI P10A, page 17.
Mr CS gave evidence that there was a discussion that day about ‘like girls and stuff … just like what we like, sort of thing’ but he did not recall the complainant coming out and scaring them. He gave evidence that he had never watched pornography with the accused or anyone else.
When the accused gave his evidence‑in‑chief, he said there were occasions when he and Mr CS would show each other videos, ‘like some sexual, stuff, what people send me and that’, including ‘scat’.[41] He thought they watched the scat video on 6 December, but ‘I’m not really sure’.[42] He was not aware of any times that the complainant overheard him talking with Mr CS about anything sexual.[43]
[41]T162.
[42]T163.
[43]T163.
In cross‑examination, I think the accused attempted to diminish the involvement of Mr CS because of what Mr CS had said in evidence. I do not think this was a display of ‘rat cunning’ on the part of the accused, but rather a basic understanding that Mr CS did not support what the accused had originally told the police. The accused’s evidence that the videos were on his (the accused’s) phone[44] contradicted his statement to the police that they were on Mr CS’s phone[45]. He gave evidence that he did not tell the truth to the police about that ‘because I wasn’t too sure’.[46] His change of story about watching the videos on his phone did not then sit well with his statement to the police that he had run out of data on his phone about six weeks prior to 6 December.[47] In cross‑examination, he tried to explain the discrepancy by saying they had wi‑fi at the house which he was rarely allowed to use but he would ‘sneak in the password for a couple of minutes or so’.[48]
[44]T210.
[45]MFI P10A, page 19.
[46]T211.
[47]MFI P10A, page 27.
[48]T207.
It is difficult to reconcile the accused’s evidence that his grey trackpants that he was wearing on 6 December might have had semen on them with his evidence that he washed them about every two weeks and last masturbated about six weeks prior to 6 December.[49] He did not know why he told the police there might be semen on his pants nor did he know why he still thought that to be the case.[50]
[49]See discussion at []
[50]T193.
I reject the accused’s evidence that, after both complaints, the complainant said she was joking. I reject his evidence that the complainant also said on 6 December that she had wet herself. Neither the mother (present on both occasions), nor the complainant’s father (present on 6 December), heard the complainant say she was joking. On 6 December, the complainant was later under a blanket repeating ‘I’m not lying’. I think it unlikely that she slipped in a one‑off contradictory statement during her repetition of the phrase ‘I’m not lying’. I also think it unlikely that a statement by her that she was joking and had wet herself would have been missed by everyone other than the accused.
I have not used the evidence that the complainant was repeating ‘I’m not lying’ as evidence of prior consistent statements on her part, as evidence of the truth of what was said or as evidence which in any way bolsters her credibility. I have had regard to that evidence in two ways only. First, it is simply part of the narrative of the unfolding of events on 6 December 2020. Second, it is the context in which it is necessary to assess the credibility of the accused’s evidence that she said she was ‘joking’ and that she wet herself. As stated above, I do not find his evidence on this topic to be credible. On his evidence, it is a remarkable coincidence that he changed his pants that day because he wet himself and he claims the complainant said that she changed her pants that day because she wet herself.
I accept the accused’s evidence that he did not wash his clothes or his sheets very often. I accept his evidence that getting sperm/semen on his sheets from masturbating did not cause him to wash his sheets. I have doubts about his evidence that he used other people’s sheets on his bed. He told the police he did that because he ran out of sheets because he did not wash them often. He gave evidence that he did that because he wanted to annoy the complainant’s father. Whilst both explanations can stand together, I have doubts about that evidence because, based on his mother’s evidence, he had many sets of sheets and was unlikely to run out. I also have doubts about his evidence that he put the complainant’s pink sheet on his bed. Neither his mother nor the complainant’s father noticed that.
I have not placed much weight on the accused’s evidence, including his denials. As set out above, there were aspects of his evidence which were self‑contradictory, inconsistent with prior statements to the police and contradicted by the evidence of others whose evidence I accept. I think those problems with his evidence were created by his attempt to account for the evidence against him. His was not the evidence of a deliberate or calculating liar trying to outsmart everyone. Rather, his was the evidence of a nervous, scared and very young man who found himself alone in the witness box with a basic understanding of the evidence against him. I agree with Mr Coates’ submission that his emotional response at one stage was not an example of ‘crocodile tears’. I think they were the tears of a young person who was struggling with the enormity of the situation in which he found himself.
The question for decision is whether, on the whole of the evidence, and notwithstanding the defence evidence and argument, the prosecution case has been proved beyond reasonable doubt.[51]
[51]R v Schulz (2016) 126 SASR 476 at [35]; R v Ahmadi, R v Hosseini, R v A,N; R v M,A (2018) 131 SASR 64.
Forensic evidence – complainant’s fitted sheet and underpants
The prosecution submitted that the forensic evidence supports the complainant’s evidence.
The defence submitted that there were three other possible explanations for why there was semen/sperm on the complainant’s pink fitted sheet which the prosecution must exclude. I will separate them into four possibilities which the prosecution must exclude.
The first possibility is that the sperm/semen on the sheets/underpants was not the accused’s sperm/semen.
The second possibility is that the accused had the sheet on his bed when he masturbated, that he then put the sheet in for washing, and after the sheet was washed it was placed on the complainant’s bed. There was then either secondary transfer of the semen/sperm from the sheet to the complainant’s underwear or from the accused’s grey trackpants to the underwear when the mother handled the items.
The third possibility is a slight variation of the second possibility. On this scenario, the sheet was not washed before it was put back onto the complainant’s bed.
The fourth possibility is that the accused had sperm/semen on his trackpants. When he was on the complainant’s bed that afternoon, innocently playing with her, the sperm/semen transferred to the sheet and to her underpants. The transfer to the underpants could also have occurred when the mother handled the accused’s trackpants and the complainant’s underpants.
First possibility
I find that the first possibility is excluded as a reasonable possibility.
Ms Windram gave evidence about the forensic examination and DNA results for the fitted bed sheet and underpants.[52]
[52]Exhibits P6A and P6B.
There were parts of the bed sheets that fluoresced using the polilight. Those areas were then further screened with the acid phosphatase test which is a presumptive test for semen. There were three positive stains using the acid phosphatase test. They all reacted within less than 10 seconds.
Further testing was done on two of those three areas. The first stain (4.01‑01)[53] was an area 35mm x 15mm. A sample was taken from within that area. On a microscopic examination there were no whole sperm or epithelial cells seen, but there was a low level of sperm heads. The presence of sperm heads confirms the presence of semen.
[53]Exhibit P7, page 38.
A second sample was taken from the fitted sheet (4.01‑02). There was a very low level of sperm heads observed with no whole sperm and no epithelial cells. The DNA result was the same as the result for the other sample.
There is no doubt that there was sperm/semen on the complainant’s fitted sheet.
The result for both sampled areas was a mixed DNA profile of three contributors (first sample) or four contributors (second sample). It is assumed that the complainant was one of those contributors. There is extremely strong support for the accused being one of the contributors for each of the sampled areas.
The defence made the point that Ms Windram cannot rule out the possibility that the accused’s DNA came from a source other than the sperm and that the DNA from the sperm is from one of the other unknown contributors.[54]
[54]T140.
In relation to sample 4.01-01, there were low levels of sperm observed. There were three contributors to the mixed DNA profile from the sample. The third unknown person’s DNA contributed to the mixed profile at a very low level, being 0.28% of the DNA profile. That person’s profile was very weak, incomplete and gender was unable to be determined. The major contributor to the mixed profile was the accused. He contributed 99.63% of the DNA to that mixed result.
In relation to the sample 4.01-02, there were less than five sperm heads observed. There were four contributors to the mixed DNA profile. The accused was the major contributor of DNA, being 67.65%. The other two unknown people contributed DNA to the mixture at a low level.
Ms Windram gave evidence that the fact that someone is a major contributor does not say how or when the DNA was deposited or by what source the DNA was deposited on the item.[55]
[55]T148.
I think it highly unlikely that, as a major contributor to each mixed DNA profile, the source of the accused’s DNA was a substance other than the observed sperm. No epithelial cells were observed in either sample. Additionally, in the circumstances of this case, the only other source of the sperm could be the complainant’s father. There is no evidence to suggest that as a possibility.

I am satisfied that the sperm/semen on the complainant’s fitted sheet was from the accused.
Second possibility
The second possibility is that the accused masturbated on that fitted sheet when it was on his bed, then it was washed and put onto the complainant’s bed. On this scenario, the washing process did not remove the semen/sperm from the sheet. The semen/sperm on the complainant’s underpants was either because of innocent transfer from the sheet or from the accused’s grey trackpants when his mother handled the complainant’s trackpants/underwear and his trackpants that evening.
The evidence about the storage of bedding for the family was not in dispute. The bedding was kept in the linen press which had four separate cupboards. One cupboard was for the king‑size sheets used by the mother and complainant’s father. Another cupboard was for the queen‑size sheets for the spare room. In a third cupboard were the single‑size sheets for the complainant and her twin brother. The complainant had pink/purple sets comprising about four to five summer sheet sets and two flannelettes. Her twin brother had blue sheet sets. The last cupboard was for the accused who had six or seven sheet sets in grey/brown/black and his sister who had pink/red/something girly.[56] The complainant’s father gave evidence that he was responsible for that organisation, describing himself as ‘a bit anal’.[57]
[56]T50 – 52.
[57]T96.
The accused gave evidence that he deliberately took sheets from the wrong cupboard to annoy the complainant’s father. He said there was bad feeling between them because the complainant’s father thought he was a bit lazy. When he tried to help on the farm, the complainant’s father would yell at him for getting something wrong, so the accused basically told him to do it himself.
The accused gave evidence that sometime in 2020 he picked the pink sheet to put on his bed. He did that more than once but could not say how many times. He did not think that the complainant’s father ever saw them on his bed because he never said anything about it. He did it once or twice with the twin brother’s sheets. He kept on doing it to wait for a reaction.
The accused agreed he told the police that he ‘pinched’ a couple of other people’s sheets because he ran out and did not mention that he did it because he wanted to annoy the complainant’s father.[58] He could not explain why he gave a different explanation to the police.[59]. He said sometimes he would run out, but most of the times he would just grab someone else’s so he could annoy the complainant’s father.
[58]MFI P10A, Q240.
[59]T190.
The mother[60], the complainant’s father[61] and Mr CS[62] gave evidence that they never saw a pink sheet on the accused’s bed.
[60]T52, 80.
[61]T95.
[62]T123.
The accused gave evidence that when he used sheets from the other cupboard, he did not wash the sheet but would ‘put it with [the complainant’s] and mum’s washing and that’.[63] The complainant’s mother gave evidence that she tried to wash the sheets (other than those of the accused) every three weeks.[64]
[63]T186.
[64]T52.
Ms Windram gave evidence that if DNA is deposited on an item which is then washed in a washing machine, the DNA can persist on the item after it comes out of the wash. There are various factors which may influence the retention of DNA. For a biological fluid, those factors include whether the sample was dry or wet before it was washed, how long it had been on the item before it was washed, the type of fabric and the type of wash. Cotton is better at retaining DNA than a thick fabric such as wool. Dry cleaning is less effective in removing stains than a washing machine.[65]
[65]T147.
Studies have shown that if semen is retained on an item after it has been washed, weak positive reactions can be obtained using the AP test.[66]
[66]T147 – 148.
In this case, the samples gave strong positive reactions to the AP test. The samples reacted in less than 10 seconds.[67] In cross‑examination, Ms Windram gave evidence that she could not discount the possibility that the semen had been deposited and then the sheet washed.[68]
[67]T148.
[68]T148.
The accused gave contradictory evidence about when he might have last masturbated prior to 6 December. He agreed that he told the police he had not masturbated for about six weeks and gave evidence that that was the truth.[69] However, he also gave evidence that there might have been semen on his grey trackpants that were seized because he might have had fun one night in the days before 6 December. His said he was ‘really not too sure’ why he thinks it might have been days before, he was guessing.[70] The accused also gave evidence that he would wash the trackpants as part of his wash every couple of weeks.[71]
[69]T193.
[70]T192, 193.
[71]T192.
He could not explain why he thought there might be semen on his seized trackpants if he had not masturbated for about six weeks and if he washes his pants every couple of weeks.[72]
[72]T193.
There was no evidence that the pink bed sheet was on the accused’s bed a couple of days before 6 December.
On the evidence, the possible scenario is that (i) at least six weeks prior to 6 December, the accused took the fitted pink sheet from the complainant’s cupboard in the linen press and put it on his bed because he had run out and/or he was trying to get a reaction from the complainant’s father, (ii) no‑one else saw the fitted pink sheet on his bed, (iii) the accused masturbated on his bed at some stage at least six weeks prior to 6 December when that pink fitted sheet was on the bed, (iv) the accused put the fitted pink sheet in the wash, (v) the fitted pink sheet was washed and put in the linen press cupboard, (vi) from the multiple sheet sets belonging to the complainant, the mother put that fitted pink sheet on the complainant’s bed prior to 6 December, (vii) the AP tests were strong positive tests even though the sheet had been washed and (viii) the accused’s sperm was retained on the sheet despite the washing.
I think that combination of events to be highly unlikely.
The combination of events is even more unlikely when the forensic evidence relating to the complainant’s underpants is considered.
On this scenario, the prosecution must exclude the possibility that the semen/sperm was on the complainant’s underpants because of secondary transfer from the fitted sheet when she was sitting/lying on it or because of secondary transfer when the mother handled both sets of clothing that evening of 6 December.
There is no evidence that, on an innocent scenario, the complainant sat or lay on her fitted sheet whilst wearing only those underpants. The evidence is that she was wearing trackpants that day. On the assumption that those underpants were in contact with the fitted sheet, then I need to consider the possibility of transfer of semen/sperm. Ms Windram gave evidence that ‘biological fluid, such as semen, can also be transferred by indirect means and they can also be affected by how fresh or if the sample is wet, it’s more likely to be transferred, than if it’s dry’.[73]
[73]T149.
On this scenario, the semen/sperm is dry because the sheet has been washed and dried. That makes transfer less likely than if it was wet.
Additionally, there were five areas on the inner rear of the complainant’s underpants which gave a strong positive reaction to the acid phosphatase test. On the first sampled area (6.01‑02), there was a very low level of whole sperm observed and a low level of sperm heads. There were no epithelial cells. On the second sample (6.01‑03), there were no whole sperm or epithelial cells seen, but a medium level of sperm heads. Ms Windram gave evidence that the time of the reaction is one indication of a strong result, but the intensity of the stain is another indication of a strong result. These reactions were intensely positive, so intensely purple.[74]
[74]T148.
I think it unlikely that two strong results on the complainant’s underpants were because of indirect transfer from the sheet which had dry semen/sperm on it.
The other possibility in relation to the underpants was that there was transfer of semen/sperm from the accused’s grey trackpants to the complainant’s underpants when the mother handled both sets of clothing.
One difficulty with this scenario arises from the accused’s own contradictory evidence about there being semen/sperm on his grey trackpants. He gave evidence that he last masturbated about six weeks prior to that day and washed his trackpants every few weeks. He could not explain why he thought there might be semen/sperm on his grey trackpants on that day.
Another difficulty with this scenario is that the semen/sperm on his grey trackpants would have been dry at the time the mother handled them. That makes it less likely to transfer than if it was wet.
Another difficulty is the lack of clarity in evidence regarding the order in which the mother handled the items. On the assumption that the mother handled the accused’s grey trackpants first, then the scenario involves the semen/sperm transferring to her hands before she then handled the complainant’s underpants and then semen/sperm transferring on to the complainant’s underpants. I think that the intensity of the results on the complainant’s underpants makes this possibility unlikely.
I reject this scenario as a reasonable possibility.
Third possibility
The third possibility is the same as the second possibility, but the sheet was not washed before it was back on the complainant’s bed.
The complainant’s mother gave evidence that she did the washing for everyone other than the accused. The accused gave evidence that he did not change the sheets on his bed very often. He would change them when they ‘started to get a bit smelly or something’.[75] The mother said that after she washed the sheets, she would put them back in the linen press.[76]
[75]T196.
[76]T50 – 51.
The accused gave evidence that if he used someone else’s sheet, he would ‘put it with [complainant’s] and mum’s washing and that’.[77]
[77]T186.
I consider it highly unlikely that the mother would remove the used sheets from the complainant’s bed for washing and then make the bed using a used fitted sheet which was ‘a bit smelly’ from a washing basket.
I reject this scenario as a reasonable possibility.
Fourth possibility
The fourth possibility is that there was innocent transfer from the accused’s grey trackpants to the sheet and then transfer from the sheet to the complainant’s underpants or transfer to the underpants when the mother handled the clothing.
As set out above, the accused gave evidence that he thought there might have been semen/sperm on his grey trackpants which were seized by the police. His evidence was vague and contradictory about that. He was unable to say why he thought that might be the case. He gave evidence that he had not masturbated for six weeks.
In any event, even if there was sperm/semen on his grey trackpants at the time he says he was (innocently) playing with the complainant in her bedroom, I think the likelihood of transfer onto her sheet and transfer from the sheet onto her underpants is very remote. There is no evidence that when they were (innocently) playing, she was wearing underpants only (and not her trackpants). On that scenario, the sperm/semen on his grey trackpants would have been dry. That makes transfer less likely.
I also consider that transfer from the accused’s trackpants to the sheet when the accused was (innocently) playing with the complainant and then transfer from his trackpants to the underpants when the mother handled the items of clothing is highly unlikely, especially in light of the sperm/semen being dry at the time of the supposed transfer.
I reject this scenario as a reasonable possibility.
Other forensic evidence
During the forensic medical assessment of the complainant on 8 December 2020 at 9.30 am, wet and dry swabs were taken from the labia majora and the labia minora/vestibule. Sperm were not observed on smears prepared from the swabs. No male DNA was detected on either swab.
The complainant’s mother gave evidence that the complainant did not have a bath or shower before going to the appointment nor did she change her clothes. She did go to the bathroom during the intervening period.[78]
[78]T73 – 74.
Ms Windram gave evidence that the longer the time frame between the incident and the sampling the less likely is the detection of DNA. Toileting can have a similar impact on the removal or detection of DNA as showering or washing.[79]
[79]T132.
Mr Coates submitted that the negative results on the swabs are an important matter to consider given the particularity of the allegation, including whether simply toileting would be sufficient to remove any trace from the complainant’s genital area.
By the time the swabs were taken, it had been approximately 40 hours since the alleged offending. Ms Dunlop submitted that although the complainant did not have a shower or bath in that time, she would have gone to the toilet on occasions which would have involved urination and wiping. I agree with the submission. Because of the delay and toileting during that period, the absence of male DNA on the swabs does not cause me to doubt the credibility of the complainant or the prosecution case.
The inner crotch of the complainant’s underpants was sampled and a mixed DNA profile of two to three contributors was obtained. On the assumption that the complainant was one of the contributors, the result was 41,000 in favour of the accused being a contributor rather than him not being a contributor. The area was negative to a presumptive test for saliva.
The complainant alleged that the accused used his spit when he committed the unlawful acts on 6 December. The negative result on the presumptive test for saliva was not the subject of much evidence nor did it feature in the submissions of counsel. There was no evidence about the sensitivity of the presumptive test. Although saliva was not detected on the crotch area, I am satisfied that the accused was one of the contributors of DNA in that area from a biological source which is not known. The negative result on the presumptive test for saliva does not cause me to doubt the complainant’s allegations.
Verdict
I am satisfied that on 6 December 2020, the accused committed the unlawful sexual acts of indecent assault, namely, touching the complainant’s genital area with his fingers and rubbing the complainant’s genital area with his penis. The complainant’s evidence is supported by the forensic evidence regarding the fitted sheet and the complainant’s underpants. It is also supported by the fact that they both changed their trackpants that day.
I am also satisfied that there were earlier occasions when the accused committed those unlawful sexual acts upon the complainant in her bedroom. It is not possible to be precise about the number of prior occasions. I do not accept the complainant’s evidence that it was every day. I do find that there were many times when it happened during the period alleged in the charge. It was risky behaviour, but, over time, the accused would have been emboldened by the fact that he had not been caught out.
I find the accused guilty of count 1. There is no need to consider the alternative offence, count 2.