R v M, PM - [2022] SADC 133

District Court of South Australia
(Criminal)
R v M, PM
Criminal Trial by Judge Alone
[2022] SADC 133
Reasons for the Verdict of his Honour Judge Allen
11 November 2022
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 28 January 2020 and 7 October 2020, the accused maintained an unlawful sexual relationship with his stepdaughter by engaging in two or more unlawful sexual acts with her, namely: (a) touching her vagina on more than one occasion; (b) inserting his finger into her vagina on more than one occasion; (c) kissing her; and (d) rubbing his penis against her vagina.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 34M, referred to.
R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98; R v England (2013) 116 SASR 589; Murray v The Queen (2002) 211 CLR 193, considered.

R v M, PM
[2022] SADC 133
[Criminal]
Overview

The accused is charged on an Information dated 24 May 2022 with the offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935.
It is alleged that between 28 January 2020 and 7 October 2020, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with her, namely: (a) touching her vagina on more than one occasion; (b) inserting his finger into her vagina on more than one occasion; (c) kissing her; and (d) rubbing his penis against her vagina.
The accused elected for trial by judge alone. For the reasons which follow, I find the accused not guilty.
Elements of the offence
The offence of maintaining an unlawful sexual relationship with a child has four elements:
1.      The accused knowingly maintained a relationship with the complainant 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 was a child 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.
Elements one, two and three were not in dispute at trial and are established beyond reasonable doubt. Element four was the issue at trial. It was not disputed that each of the particularised acts, if proven, would amount to an unlawful sexual act. The question is whether the prosecution has proven beyond reasonable doubt that the accused intentionally committed two or more of the particularised unlawful sexual acts.
Preliminary legal directions
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.
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 mere suspicion of guilt or to demonstrate probable guilt. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and the verdict should be one of not guilty. The accused is not required to prove that he did not commit the offence with which he is charged.
Several of the witnesses 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 witnesses’ evidence. I must not draw an adverse inference against the accused as a result of the fact that these arrangements were in place.
The accused did not give evidence and did not call any evidence. The accused’s silence cannot be used against him. I must not draw any inference adverse to him from the 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.
Background
Ms U’s relationship with Mr E produced two daughters and ended in about October 2009. FE was born on 21 December 2006 and the complainant was born on 27 October 2008. Ms U thereafter commenced a relationship with the accused in about 2012 and they began living together in about 2015. They have three children together. The accused assumed the role of the complainant’s stepfather. At all relevant times, Ms U and the accused resided at a rental property at 49 Ferris Street, Christies Beach. The complainant and FE were in the sole custody of Ms U and the accused during the period between about June 2019 and the accused’s arrest on 7 October 2020. The complainant disclosed the allegations firstly to FE’s friend ALS, and secondly to ALS’s mother Mrs P.
The complainant
The complainant participated in a recorded interview which was admitted pursuant to s 13BA of the Evidence Act 1929. I was satisfied as to the existence of the statutory pre-requisites for admission, in particular s 13BA(3)(b). The complainant also gave sworn evidence in Court.
Backyard incidents
The complainant said that when she was grounded, she would stay home with the accused rather than attending church with Ms U and the other children. While the complainant was alone with the accused, he would touch her inappropriately.[1] The complainant said that the first time the accused touched her was on a Sunday at the end of term one when the complainant was ‘grounded’ and the rest of the family were at church. The complainant was sitting on the back steps of the house while the accused was smoking and showing her a video. The complainant said that the accused rubbed between her legs near the back of the knee and moved his hand further up the thigh.[2]
[1] Exhibit P1; Exhibit P7 p 6.
[2] Exhibit P1; Exhibit P7 p 23.
The complainant gave evidence that while sitting on the back steps, the accused moved his hand from the inside of her thigh towards her vagina and began rubbing under her dress.[3] While his hand remained on the inside of her leg, his thumb was rubbing her vagina on top of her underwear.[4] The complainant was wearing pyjamas because it was early in the morning. The complainant later gave evidence that the family were at home rather than being at church on the occasion that the accused touched her on the back steps. It was early in the morning on a school day and the rest of the family were most likely asleep at the time.[5]
[3]     T58.2-6.
[4]     T58.21-28.
[5]     T78.27.
The complainant said that a couple of weeks after the incident on the steps, there were further instances of touching with the accused moving his hands further up the leg and to the vagina. On the first occasion that the accused touched the complainant’s vagina, he put his hand underneath her dress and rubbed the area of her underwear. [6] This occurred in the large shed in the backyard of the house. It was a Sunday morning while the rest of the family were at church and the complainant was helping the accused build the cubby house in the backyard.
[6] Exhibit P1; Exhibit P7 p 27.
The complainant gave evidence that when she was in the shed with the accused, he lifted her up to get some wood or a tool. While the accused was holding the complainant, he moved his hands from her thighs to her bottom.[7] The complainant was sitting on the accused’s shoulders at the time. The little shed in the backyard was out of bounds for the children but they were allowed to enter the big shed if there was an adult present.
[7] T59.17-18.
Bedroom incidents
The complainant said that most of the time, the accused would lift her underwear and touch her. The accused would mostly touch her on the vagina but sometimes he would touch her on the bottom.[8] The accused would use his hands and in particular his rough fingers to rub the complainant’s vagina. The complainant said that in addition to early in the morning, the accused would touch her inappropriately late at night when the other people in the house were asleep.[9] The accused began inserting his finger in her vagina in the period from the end of term two to the start of term three. The complainant gave evidence that commencing at the beginning of term three, the accused touched her inappropriately every morning.[10] However, the complainant later acknowledged that the accused travelled away for work. The complainant then said that the accused would put his finger in her vagina every morning that he was at home rather than away for work.[11]
[8]     Exhibit P1; Exhibit P7 p 11.
[9]     Exhibit P1; Exhibit P7 p 4.
[10] Exhibit P1; Exhibit P7 p 22.
[11]   T88.8-11.
The complainant gave evidence that the accused began touching her in her bedroom around the start of term three. The accused would come into her bedroom almost every single morning before he went to work or late at night when everyone else was asleep. He would lift the covers and start touching her on the vagina with his fingers.[12] The accused touched her vagina with his hands and would sometimes lick his finger.[13] The complainant gave evidence that the accused’s fingers were rough and would be wet with saliva because he would have licked them. The complainant said that she found it disgusting that the accused would sometimes lick his finger before putting them into her vagina.[14]
[12] T65.18-21.
[13] T60.14-15.
[14] Exhibit P1, Exhibit P7 pp 17-18.
The complainant gave evidence that on the first occasion that the accused touched her in the bedroom, she was lying down and the covers were lifted up. She felt the cold air and then felt the accused’s hand go underneath the covers towards her vagina. The accused started rubbing over the complainant’s underwear and then pulled the underwear down and touched her vagina.[15] From that time onwards, the accused touched the complainant in her bedroom every single night or morning.
[15] T60.24-37.
The complainant said that she would tuck the bed covers under herself, but the accused would lift them up from underneath her. The complainant said that the only approach which had stopped the accused was to wear overalls and leggings with stockings underneath. The complainant gave evidence that she lied to Ms U by telling her that she had her period hoping that it would stop the accused from touching her. It also allowed her to wear a pad in her underwear as extra protection from the accused.
The complainant said that on one occasion, the accused was in her bedroom and hid behind the bedroom door because he thought that Ms U was waking up. The complainant gave evidence that the accused only hid behind her bedroom door once but there was possibly another occasion when the accused was almost caught in her bedroom. The complainant said that on another occasion, the accused pulled down her leggings, but someone was awake in the house and moving down the hallway. The accused left the complainant with her pants down.
Couch incident
The complainant said that the accused would sleep on the couch in the lounge room. There were occasions that she slept in the lounge room with the accused. She said that the accused inappropriately touched the complainant on the couch multiple times. On one occasion in the lounge room, the complainant was lying on the couch and the accused was lying next to her. The accused started touching the outside and inside of the complainant’s vagina while she was awake.[16] The complainant gave evidence that while she was on the couch in the lounge room with the accused, he placed his legs on either side of her body and started touching her in her vagina with his fingers which were wet and rough.[17] The accused then started kissing the complainant. It felt as if the accused was trying to move his tongue into her mouth.[18] The accused then started humping the complainant with his groin pressing against her groin. The complainant could feel the accused’s hard penis through his underwear.[19] The complainant agreed under cross-examination that it was only in May 2022 that she reported any incident on the couch in the lounge room. The complainant also agreed under cross-examination that she did not mention the accused humping her or kissing her on the couch in the lounge room when she first spoke to police.[20]
[16] T62.32-35.
[17] T63.10-12.
[18] T64.8-9.
[19] T64.26-38.
[20] T96.30-38.
House dynamic
The complainant gave evidence that it was a busy, noisy house. The accused would wake up before 6:00AM to go to work. He would typically wake up early on weekends as well. Sometimes the complainant and FE would wake up early to watch television and there were rare occasions when the younger children would wake up early as well. At night-time, the younger children would sometimes stay up when they were supposed to go to bed. All the children would on occasion sleep with the accused on the couch in the lounge room.
The complainant gave evidence that the doors to Ms U’s bedroom and the younger children’s bedroom were usually open. The complainant would not sleep with the door shut because she does not like sleeping in the dark. The complainant gave evidence that after she made allegations to ALS and spoke to the police there was a rule that her bedroom door would be open at all times. The accused would not be in her bedroom with the door shut.

Complaints
The complainant said that she told ALS that the accused had inappropriately touched her. The complainant gave evidence that she never told ALS that the accused would slap her bottom when she was on her period.[21] After the conversation, ALS told the complainant’s parents what had been said. The accused denied the allegation and the complainant was pressured to go to the police station. After she made the allegations to ALS, she had to lie to the police and say that she was only joking. The complainant gave evidence that she lied to police and told them that it was a joke because she was scared, and no one believed her. She told the police that the accused had just brushed her bottom with his hand.[22]
[21] T101.8-9.
[22] T101.26-31.
The complainant gave evidence that on the last occasion that the accused touched her before she spoke to Mrs P, the accused put his wet and rough fingers in her vagina. [23] This occurred very early in the morning on the same day that she spoke with Mrs P. The complainant said that the accused used his finger ‘every time’ between the start of term three and the day that she made the report to Mrs P.[24]
[23] Exhibit P1; Exhibit P7 p 19; T66.4-6.
[24] Exhibit P1; Exhibit P7 p 31.
The complainant spoke with Mrs P on 6 October 2022. The complainant said that the accused had touched her the previous night and early in the morning on the day that she spoke with Mrs P.[25] She later said that it only happened very early on the morning that she spoke with Mrs P and not on the night prior.[26] She told Mrs P that she would try to roll over and tuck the covers underneath her, but she was too scared to open her eyes and tell the accused to stop. She said that she had woken up when she felt the bed covers lifting and when she felt the cold against her skin. The complainant gave evidence that she spoke with ALS and Mrs P rather than Ms U because she did not have a good relationship with Ms U and she did not know if she would be believed. The complainant denied inventing the story about the accused because she did not like living with Ms U and the accused.[27]
[25] Exhibit P1; Exhibit P7 p 7.
[26] Exhibit P1; Exhibit P7 p 20.
[27] T121.25-31.
FE
FE is the elder sister of the complainant and the daughter of Ms U and Mr E. She participated in a recorded interview which was admitted pursuant to s 13BA of the Evidence Act and then gave brief evidence in Court. Again, I was satisfied as to the statutory pre-requisites for the admission of this evidence.
FE said that she had no suspicions about the accused sexually abusing the complainant. FE gave evidence that she and the complainant had their own bedrooms while the accused would often sleep on the couch. Both FE and the complainant have slept with the accused on the couch on a couple of occasions. As far as FE was aware, she was the only person in the house who would close their bedroom door at night-time. Each of the other bedroom doors would be kept open. The accused would wake up at about 6.00 am for work. The complainant, FE, and the younger children would sometimes wake up early in the morning as well. On days that the accused did not work, he would not wake up as early. The complainant would wear whatever she had worn on a particular day to bed that night. The complainant would not always go to church with the family and would stay home with the accused instead. FE gave evidence that she helped the accused build a cubby house in the backyard. She said that both sheds in the backyard were out of bounds for the children unless an adult had given them permission to enter. FE gave evidence that she and the complainant went to live with Mr E after they made allegations to police that Ms U had assaulted them. FE and the complainant lived with Mr E for a couple of years thereafter. Following an allegation made to police in mid-2019 that Mr E had assaulted FE, FE and the complainant returned to live with Ms U. FE gave evidence that after the complainant told ALS that something inappropriate had happened, there were rules that the complainant was not to be alone with the accused and her bedroom door was to be open at all times. Ms U was strict about enforcing the rules.
Mr E
Mr E is the biological father of the complainant and FE. Mr E and Ms U separated in October 2009. Mr E gave evidence that in the years that followed, the arrangements for the custody of the complainant and FE changed several times. Mr E had sole custody of the complainant and FE in about 2015 following an allegation of physical assault against Ms U. Mr E told the complainant and FE to contact the police if anything happened to them at Ms U’s house. Ms U had sole custody of the complainant and FE in about 2019 following an allegation made against Mr E.
ALS
ALS is a friend of FE who would spend time with both FE and the complainant. She is the daughter of Mrs P. She participated in a recorded interview which was admitted pursuant to s 13BA of the Evidence Act and then gave brief evidence in Court. I was satisfied as to the statutory pre-requisites for the admission of the interview.
ALS said that on the first occasion that the complainant told her that the accused had been touching her, the complainant had asked to speak to her privately. The conversation took place in the complainant’s bedroom. ALS did not know what to do and so she told FE about what had been disclosed. FE then told Ms U who started yelling at the complainant and telling her to leave the house.[28] Ms U’s reaction made ALS upset, and the accused attempted to calm Ms U down. When ALS next spoke to the complainant about the accused, she again said that he had been touching her. The complainant said that the accused had been fingering her and would slap her on her bottom when she was on her period.[29] ALS said that she did not know a lot about the accused, and he would normally be at work when she was with FE and the complainant.[30]
[28] Exhibit P4; MFI P4A p 4.
[29] Exhibit P4; MFI P4A p 10.
[30] Exhibit P4; MFI P4A p 17.
Mrs P

Mrs P is the mother of ALS. She gave evidence that she first became aware of an allegation of inappropriate conduct when she received a telephone call from ALS, who was having a sleepover with FE at the time. ALS told Mrs P about the allegations that the complainant had made and Mrs P immediately went to the house to pick her up.[31] Mrs P gave evidence it was before Covid-19 lockdown.
[31] T173.13-14.
Mrs P gave evidence that in October 2020, she came home from work one morning to find the complainant at her house with her son. The complainant said that she wanted to talk to Mrs P about something, but she did not want Ms U to know. Mrs P took the complainant to her bedroom and they sat on the bed. After Mrs P again said that she would not tell Ms U, the complainant asked if she had heard about something that was said about the accused. Mrs P said that ALS had told her, and the complainant said that it was true. The complainant said that the accused made her feel uncomfortable and that he would touch her in the genital area. The complainant said that it happened almost every morning, including that day. The complainant said that the accused would come into her bedroom and touch her before he went to work and while everyone else was asleep. The complainant would try to cover herself with layers of clothing and would pretend to be asleep.
Ms U
Ms U is the biological mother of the complainant and FE. Ms U gave evidence that she commenced a relationship with the accused in about 2012. The relationship was on and off until about 2015 and from that time onwards, they lived together for about five years. Ms U and the accused moved into a rental property at 49 Ferris Street, Christies Beach in about June 2018. Mr E took sole custody of the complainant and FE in 2015 after they made allegations of assault against Ms U. On another occasion in November 2015, the complainant and FE called the police regarding Ms U. Police attended the house and spoke to the complainant and FE before speaking to Ms U. After the police departed, Ms U arranged for the complainant and FE to be collected by Mr E’s wife. The complainant and FE returned to the sole custody of Ms U in about June 2019 as a result of allegations that FE had made against Mr E.
Ms U gave evidence that on 16 April 2020, ALS reported that the complainant had said that she had been touched by the accused. When confronted by Ms U, the complainant said it was a joke and started crying. The accused was building the cubbyhouse at the time. When confronted by the accused, the complainant again said that it was a joke. After the allegations had been made, Ms U sent the complainant to stay with her paternal grandmother. On the same day, Ms U and the accused made a report at Christies Beach Police Station. Police were told that the complainant had admitted that she was joking and thought that it would be funny.[32] The next day, Ms U arranged for her and the complainant to speak with a police officer at Christies Beach Police Station. The complainant said that the accused might have just brushed her bottom and it made her feel uncomfortable.[33] Ms U could not recall if that was what the complainant told police.[34] The accused was not present. The police officer told the complainant about the consequences of making allegations.
[32] T184.15-33.
[33] T186.
[34] T187.2.
The complainant stayed with Mr E’s mother for about two days after she made the allegations against the accused. When she returned to live with Ms U and the accused, strict rules were put in place. The complainant was not to be with the accused unless Ms U or FE were also present. The complainant’s bedroom door was not to be shut and the accused was only to speak with the complainant in her bedroom if he was standing in the doorway or if someone else was present. Ms U gave evidence that she kept a close eye on the complainant from the time that she returned to the house. Ms U said that her radar was up. However, on rare occasions between 16 April 2020 and October 2020, the complainant would be at home alone with the accused while the family were at church.[35] Upon reflection, Ms U gave evidence that the church was closed due to Covid-19 from about March/Easter 2020 for about a year.[36]
[35] T202.28.
[36] T203.1.
Ms U gave evidence that her relationship with the complainant was not the sort where she would tell Ms U everything. Ms U also gave evidence that there were occasions when the complainant’s interactions with the accused could be perceived as being ‘flirty’. The complainant would often stand quite close to the accused but Ms U only ‘caught her once’. There were occasions when the complainant would stay at home with the accused while the rest of the family were at church.
Ms U described the house as ‘very chaotic’.[37] Ms U and the accused had three younger children who were the half-siblings of the complainant and FE. The doors to the younger children’s bedrooms would be open for them to move about. Ms U gave evidence that the accused would often sleep in the lounge room. The accused would often wake up between 5.00 am and 6.00 am before leaving home for work at 6.30 am. Ms U would be in bed at that time. The complainant and FE would sometimes wake up early to watch television. The younger children would wake up early, especially on the weekends. However, there were occasions, particularly during school, when it would be difficult to get the children out of bed. The accused would sometimes work on the weekends and would sometimes travel away for work. On days that the accused was not working he would sometimes sleep in later. The complainant would wear whatever felt comfortable when she went to bed. Ms U gave evidence that the accused built a cubbyhouse in the backyard. The big shed and the small shed in the backyard were off limits for the children.
[37] T197.8.
Jodie Ashenden
Senior Constable Jodie Ashenden was stationed at Christies Beach Police Station in 2020. She gave evidence that on 16 April 2020, Ms U and the accused attended the police station in relation to allegations made by the complainant. Ms U told Senior Constable Ashenden that the complainant had said that she had been touched inappropriately but had later told Ms U that it was a joke. Arrangements were made for Senior Constable Ashenden to speak with the complainant. When the complainant and Ms U attended the police station the following day, Senior Constable Ashenden took them to an interview room. Ms U remained in the interview room for the duration of the conversation and the complainant did not disclose any information. The complainant said that she had made a comment to a friend which was a joke and was not true. Senior Constable Ashenden spoke to the complainant about the consequences of making allegations but did not take the complainant to see the police cells, as Ms U had requested.
Daniel Sutherland
Detective Brevet Sergeant Daniel Sutherland was stationed at Christies Beach Police Station in October 2020. He gave evidence that he had become aware of a previous investigation arising from allegations of assault made by the complainant and FE against Ms U in 2015. The police case management system records a police attendance at the home of Ms U, the complainant and FE on 14 November 2015. The record states that the complainant and FE said that they had been told to call police if anything happened to them at Ms U’s house. Police spoke to the complainant, FE and Ms U and did not have any concerns for the children’s welfare. The police investigation inquiry log also records a separate attendance by Detective Brevet Sergeant Hlavnicka at the home of Ms U and the accused on 27 May 2020.[38] The log states that Detective Brevet Sergeant Hlavnicka told Ms U that she had spoken to the complainant about making false allegations. Detective Brevet Sergeant Hlavnicka also spoke to Ms U about ensuring that the complainant still had the confidence to speak to her in the future if something was to happen. Ms U replied that she had a good relationship with the complainant and felt confident that she would speak to her.
[38] T218.31-35.
Aabha Kalro
Dr Aabha Kalro is a consultant paediatrician at the Flinders Medical Centre who undertakes work for Child Protection Services. She gave evidence that she conducted an urgent forensic medical assessment of the complainant on 7 October 2020. The complainant told Dr Kalro that she had been sexually abused since the start of term two in April 2020 and that the last time was on the morning of 6 October 2020. The complainant said that she felt pain when the accused put his finger into her vagina. She also said that the accused usually puts his finger in her anus but had not done so on the most recent occasion. Dr Kalro confirmed that her notes record the word ‘anus’. Her practice is to use anatomically correct language in her notes, and she could not recall the exact words the complainant used when discussing the topic. However, Dr Kalro confirmed that she would seek clarification if she was unsure about the term that a child had used for their genitalia or anus. The complainant reported that the accused had sexually abused her in this way every single day since the start of term two, both early in the morning and at night. The complainant indicated that the accused had never licked her genitals or kissed her anywhere else apart from her cheeks. The complainant became quite distressed in telling Dr Kalro that the accused had ‘dry humped’ her. The complainant told Dr Kalro that she had one episode of spotting that lasted for one and a half days on 25 September 2020.
The accused
The accused participated in a recorded interview with Brevet Sargent Miles Ferguson and Constable Stuart Paton on 7 October 2020.[39] In short, the accused accepted that he had an affectionate stepfather and stepdaughter relationship with the complainant but denied the allegations. The accused said that the complainant would spend time talking with him and watching music videos. He would kiss all the children at night and in the morning. The complainant would wear normal clothes as pyjamas and her bedroom was across the hall from the bedroom he shared with Ms U. He agreed that he would sleep on the couch about three nights each week and would wake up early for work. He worked as a driller for Underdale Drillers. He said that he would play with the children including giving piggy backs and wrestling, and the complainant would be very friendly and cuddly with him. He agreed that he would be home alone with the complainant on occasions. Nevertheless, the accused said that he had never touched the complainant’s genital area and he described the allegations as ‘lies’. He said that the alleged events which were put to him had never happened.
Discussion
It is self-evident that the prosecution case relies upon an acceptance of the evidence of the complainant beyond reasonable doubt.
At this point, I remind myself that the prosecution need only prove two unlawful sexual acts beyond reasonable doubt to establish proof of the charged offence.
[39] Exhibit P6.
At the outset of this analysis, there are a number of issues that operate against the prosecution case. These include:
1.      The closure of the family church due to Covid-19 tending to negate the initial opportunities to offend on the evidence of the complainant;
2.      The difficulties in reconciling the suggested frequency of offending with regard to the school terms and the work rosters of the accused;
3.      The mobility of the complainant’s account as to when the alleged acts of abuse were said to have occurred;
4.      The various factors pointing towards the improbability of the version given by the complainant; and
5.      Inconsistencies arising on the complaint evidence, including an admitted lie on the part of the complainant, suggesting that the first complaint was a ‘joke’.
The law governing the admission of the complaint is controlled by s 34M of the Evidence Act, which provides:
34M—Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(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).
The initial complaint in this matter was made in April 2020 by the complainant to her friend ALS. That complaint consisted of a disclosure ‘he didn’t touch my bum, he only touched my front bum’ and that it made her feel uncomfortable.[40]
[40] Exhibit P1; Exhibit P7 p 32.
This complaint is admissible as the initial complaint as the complainant confirms this was the first occasion that she had told anyone about the allegations and it is referable to the charged offending.
This complaint was the subject of a recantation on the part of the complainant when she stated to Ms U, the accused and Senior Constable Jodie Ashenden that she was joking, was lying and was not telling the truth. The complainant explained that she withdrew the allegations because she was scared. Notwithstanding the sequelae to the disclosure to ALS, I am satisfied that the disclosure complies with the statutory pre-requisites for admission, pursuant to s 34M of the Evidence Act.
I consider the subsequent disclosure in October 2020 to Mrs P as being an elaboration to the initial complaint. Further detail was provided by the complainant in terms of how the touching took place and the frequency of the touching. There was a further elaboration shortly thereafter to ALS when the complainant stated that the accused ‘had been fingering her’ and ‘when she was on her cycle he really didn’t do much but he would slap her ass’. I note the final part of this disclosure was denied by the complainant.
I am satisfied that the disclosure to Mrs P and second disclosure to ALS both contain further detail in relation to the allegations. Those disclosures are also admissible, pursuant to s 34M of the Evidence Act.
Whilst the disclosures reveal how the allegations came to light, and to indicate some consistency of conduct,[41] there is obvious inconsistency that arises from this body of evidence. There is an inconsistency in the fact that the complainant recanted her allegations, stating that they were only a ‘joke’. There is also the inconsistency in relation to the frequency of the acts of abuse occurring, together with the disputed disclosure to ALS as to what would happen when the complainant ‘was on her cycle’.
[41] R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98.
Whilst complaint evidence is capable of demonstrating consistency of conduct, it is also capable of exposing inconsistency.[42]
[42] R v England (2013) 116 SASR 589.
Addresses of Counsel
Prosecution Submissions
The prosecution made an overarching submission that the complainant’s evidence needed to be considered in the context of her age and experience. It was submitted that the complainant was ‘doing her absolute best to explain matters, facts, events as she recalls them years on and as she recalls them through a child’s eyes’.[43] The prosecution submitted that what was important was that the complainant remembered the offending happening a lot.
[43] T247.14-15.
Generally speaking, the prosecution submitted that the complainant made appropriate concessions and that there should be a degree of forgiveness applied given her age. It was submitted that apparent inconsistencies in her evidence could be explained by assessing what the complainant thought was important, having regard to her age; the complainant being 11 years old at the time of the interview, and 13 when she gave evidence, and having presented as a young child.
It was submitted that the level of detail provided in relation to the circumstances surrounding the offending, as opposed to the offending itself, is what stood out in the complainant’s memory.
The prosecution submitted that the evidence of the complainant was reliable and was not prone to embellishment. On the topic of the complaint evidence, the prosecution submitted that the first complaint and sequelae at the Christies Beach Police Station could be explained by the vigorous response of both the accused and Ms U, which was reinforced by the introduction of the police into the equation. The prosecution suggested that the complainant knew she was being ‘set up’.[44] This incident, together with the apparent disinterest of Mr E, meant the complainant was effectively left with few people to turn to, to seek assistance and complain about the offending. It was submitted that this is why the second complaint was made to Mrs P as opposed to anyone else.
[44] T252.20-21.
The prosecution submitted that the demeanour of the complainant during the pre-recorded interviews and in Court was demonstrative of spontaneity.
The prosecution conceded that there were a number of inconsistencies but submitted that those inconsistencies are explicable, predominantly on account of the age of the complainant.
Defence Submissions
The defence submitted that the complainant’s evidence was replete with inconsistencies, including fundamental inconsistencies that must create reasonable doubt. It was also suggested that the offending was inherently implausible in all of the circumstances. A further issue for consideration in the defence argument is the pattern of behaviour on the complainant’s part in making false statements and changes in her care over the years.[45]
[45] T266.
The defence highlighted the accused’s participation in a record of interview with police as being credible. It was submitted that the accused did not try to downplay the opportunity to offend, nor did he try to distance himself in an emotional sense from the complainant. It was submitted that this sits well with the observations of other witnesses that the accused had a good relationship with the complainant.
Defence counsel then set out a number of what were described as fundamental inconsistencies. The first of these related to timing, frequency and chronology of the offending.

The first touching, as a matter of chronology, needed to be before 16 April 2020 on account of the recanted complaint and subsequent attendance at the Christies Beach Police Station.
In the recorded interview with the police, the complainant said that the offending commenced at the beginning of term 3, then the end of term 2, and then since term 2 and term 3. It was at this stage that the complainant alleged that the touching took place every morning. Then, in examination-in-chief, the complainant stated that it was at the start of term 3 that the daily touching commenced and then under cross-examination, the position adopted was the end of term 2, start of term 3. During the course of the forensic examination with Child Protective Services, the complainant disclosed that the touching began at the beginning of term 2.
On the topic of frequency, it was submitted that significance attaches to the complainant’s evidence, that the touching would occur every single morning. Defence submitted that this was a factual impossibility given the absence of the accused from the residence from time to time due to his work commitments. Defence emphasised the chaotic nature of the house with five children potentially being up and about in the morning. It was emphasised that FE would sometimes be watching television on the weekends, prior to the accused waking up. There were also occasions when the complainant and FE would get up early to watch television before Ms U and the accused got out of bed. It was also highlighted that the children of the household could get up at odd hours, go to bed at odd hours and not stay in bed when they were told to. The evidence of Ms U was that the children would ‘get up at the crack of dawn’, particularly on weekends.[46]
[46] T273.25.
Defence placed focus on the first in time incident of touching. This touching was said to have taken place on the rear steps of the house when the balance of the family were at church, leaving only the complainant and accused at home. This incident was identified as being at the end of term 1 which was 9 April 2020.[47] There was evidence from Ms U that the church had closed for a year from March 2020. Defence submitted that the family could not have been at church.
[47] Exhibit P12.
The second incident of touching must have occurred on 16 April 2020 as a consequence of the attendance at the Christies Beach Police Station. The complainant, in her evidence, stated that the next incident was one and a half months later and took place in the shed. As a matter of chronology, this places the incident towards the end of May. Again, the complainant stated that this incident occurred when the other members of the family were away from the house at church. This was impossible, it was submitted, because the church was closed due to Covid-19.
Under cross-examination, it was submitted, the position of the complainant appeared to change on this topic. The complainant, in relation to the steps incident, stated that the family were not at church and then stated that it was a school day and that the accused was getting ready for work.
Defence submitted that the issues arising in this regard are damaging to both the reliability and credibility of the complainant.
Defence highlighted the inconsistency of the complainant telling ALS that ‘when she was on her cycle he really didn’t do much just slap her ass’.[48] This was denied by the complainant, but ALS was quite clear on this issue.
[48] T278.24.
Defence also highlighted an inconsistency on the part of the complainant, stating to the doctor in the course of the forensic examination that the accused had put his ‘finger in her anus’, something denied by the complainant in her evidence. A further inconsistency arises on the version given to Dr Kalro during the forensic examination, and that is that the complainant told him that the accused did not kiss her. This, of course, cuts across the description given by the complainant of the couch incident where the complainant describes, in somewhat graphic terms, the accused kissing her and using his tongue.
On the topic of implausibility, it was generally suggested by defence that the environment in which the offending was said to have taken place was such that the version given by the complainant was inherently implausible. In this regard, defence highlighted occasions when both the complainant and FE would sleep on the couch with the accused and the close proximity of the complainant’s bedroom to the other bedrooms (in particular to the bedroom of the accused and Ms U. Then, there was the issue of the number of people in the house and their mobility within the house. Defence also submitted that following the recanted complaint in April 2020, Ms U became somewhat hypervigilant in monitoring the interactions between the complainant and the accused. This included the imposition of a set of rules that the complainant keep her bedroom door open at all times and that the accused not be permitted into the bedroom of the complainant alone. It was suggested by defence that the complainant had a motive to lie in that, as I understand it, the complainant would rather have been living with ALS’s family. This, it was suggested, is the reason why the second complaint was made to Mrs P.
Ultimately, defence submitted that problems with the credibility and reliability of the complainant’s account, must inevitably lead to the Court harbouring a reasonable doubt about the allegations.
Analysis
I have set out in these reasons a synopsis only of the evidence in respect of the matter. I have also summarised some of the respective submissions of counsel.
The prosecution case is solely reliant upon the evidence of the complainant being accepted as both truthful and reliable beyond reasonable doubt.
The initial incident
I regard the evidence of the complainant as to the first incident as being problematic for the prosecution. The change in the version provided by the complainant as to when the first incident of touching is supposed to have occurred causes me disquiet. In the version given by the complainant in her recorded interview, she stated that the touching took place on the rear step of the house when the balance of the family were at church, leaving only the complainant and the accused at home. This incident was identified by the complainant as having taken place at the end of term 1 which was 9 April 2020.[49] This is contrary to the evidence from Ms U that the church had closed for a year from March 2020. I accept this evidence of Ms U. On the face of it, the failure of the complainant to accurately specify the precise date as to when the first touching took place, might not be of such significance when considered in isolation. However, when confronted with the apparent impossibility of the family being at church, there was a shift in her position. The complainant stated that the balance of the family were not at church and that it was a school day and the accused was getting ready for work.
[49] Exhibit P12.
It would appear that the complainant has attempted to tailor her version of these events so as to avoid an evident problem and attempt to bring that offending in line with the other allegations she had made. This change in position goes beyond the complainant simply getting the dates wrong. It demonstrates a willingness on her part to change her version of events, specifically in relation to a central issue in the trial, as opposed to something on the periphery.
The second incident
The evidence as to the second incident said to have occurred before the complainant’s attendance at the Christies Beach Police Station, is effected by the same chronological defect. The complainant stated that incident took place one and a half months after the first incident and whilst the balance of the family were away at church.
Again, this could not have been accurate due to the closure of the church under the Covid-19 restrictions in operation at the time.
Both of these inconsistencies adversely affect the reliability of the complainant, but perhaps more importantly her credibility, given her apparent willingness to adjust her story when confronted with difficulties.
The first ‘complaint’
The first complaint was made to ALS and took place in circumstances where the complainant and ALS were on the trampoline in the backyard of the house. The complainant disclosed that ‘he didn’t touch my, cause at first he didn’t touch my bum he only touched my front bum and then I told her that and I told her that it made me feel very uncomfortable, she told my mum and then my mum ask … questioned my stepdad … My step … and I ran, I ran onto the trampoline and my stepdad came out and said you could put me in prison for this’.[50]
[50] Exhibit P1; Exhibit P7 p 32.
This is to be contrasted with the evidence of the complaint witness, ALS, who, in her recorded interview, gave evidence that the complainant had asked to speak to her privately, in the context of getting ready to go to the beach with the accused. when it was disclosed that the accused had been touching her. ALS then disclosed what had been said to FE who then told Ms U. There was a confrontation during which the complainant says she was called a liar by the accused and was disbelieved by Ms U. In those circumstances, the complainant recanted what she had said and stated that she was ‘just joking and I was lying, I wasn’t actually telling the truth’.[51]
[51] Exhibit P1; Exhibit P7 p 33.
The complainant then explained that the reason why she recanted her accusations was that she was scared. She said she lied to the police and felt horrible about it.
Even if I were to accept the explanation proffered by the complainant, the fact that she had stated that she was ‘joking’ about having levelled serious allegations against her stepfather, again causes me disquiet.
The second ‘complaint’
After the recanting of the first complaint on around 16 April 2020, the complainant returned to live with Ms U and the accused. In October 2020, the complainant was at the home of ALS. Mrs P arrived home and was told by the complainant that she wished to discuss something. The complainant then disclosed that the accused had touched her in the genital area and that it happened almost every morning, including the day of the complaint. The complainant disclosed that the accused would come into her bedroom and touch her before he went to work while everyone was asleep and that she would cover herself with layers of clothing and pretend to be asleep.
A further complaint was then made shortly after this conversation, again to ALS. ALS said that she was told that ‘he had been fingering her’ and ‘when she was on her cycle he didn’t really do much but he would slap her ass’.[52] The latter disclosure was denied by the complainant.
[52] Exhibit P4; Exhibit P9 p 10.
Insofar as there is inconsistency between the evidence of the complainant and the evidence of ALS, I accept the evidence of ALS. ALS was consistent in her account and appeared as an honest witness who was doing her best to assist the Court.
This creates another inconsistency in the version provided by the complainant. On no part of her narrative was there any occasion when she was on her cycle and the accused would ‘slap her ass’. This is inconsistent with her account that the accused touched her genitals every morning throughout (at the very least) term 3. As a matter of chronology, term 3 commenced on 20 July 2020[53] and the second complaint was made on 7 October 2020, in excess of two and a half months length.
[53] Exhibit P12.
A further complicating issue in this regard is the evidence of the complainant when, under cross-examination, she was asked when she got her period and she responded ‘I still don’t have my period’.[54] I take this to mean that, as at the date of the complainant giving evidence, she had not commenced menstruating.
[54] T100.30.
Having accepted the evidence of ALS, the only possible explanation for this piece of evidence is that the complainant was not being truthful in her account of the offending made to her friend. Again, this is not something that relates to a peripheral topic. It is something that lies at the heart of the matter and indicates a preparedness to, at the very least, exaggerate her account in describing the alleged criminal conduct.
Inconsistent statement to Dr Kalro
On 7 October 2020, the day of the second complaint, the complainant was taken to the Flinders Medical Centre for examination by Dr Kalro. The purpose of this attendance was for an urgent forensic medical assessment.[55]
[55] T239.
During the course of the evidence of Dr Kalro, the issue of whether or not the complainant had reported anal penetration was raised. Dr Kalro’s evidence was as follows:
QDid she then provide additional information.
AYes, actually she - the additional information was that she experienced pain at that time and she reported that he usually puts his fingers into her anus but did not do it on Tuesday.[56]
[56] T242.17-21.
It was reported to Dr Kalro by the complainant that the accused had put his finger into her vagina every day since the start of term 2.[57] The complainant also stated that the accused had never kissed her anywhere apart from her cheeks.[58]
[57] Exhibit P12. Term dates reveal this to be 27 April 2020.
[58] T244.4-5.
This is to be contrasted with the evidence of the complainant given under cross-examination. The complainant said that she had never suggested that the accused had inserted his finger into her anus.[59]
[59] T107.1-7.
In summary, the statements made by the complainant to Dr Kalro were inconsistent in three ways. Firstly, the complainant stated to Dr Kalro that the accused ‘usually puts his fingers into her anus’. This was not mentioned by the complainant in her recorded interview with police, nor during her evidence-in-chief. In fact, she stated under cross-examination that she never said any such thing, nor did any such thing ever happen. I regard this as a significant inconsistency. This is not an inconsistency on a peripheral matter. It is an inconsistency that alleges a different species of penetrative abuse that, according to the disclosure made to Dr Kalro, occurred with regularity. This proven inconsistency on a fundamental matter operates in a manner adverse to the complainant when assessing her credibility and reliability.
Secondly, the complainant’s statement that the accused only kissed her on the cheek is inconsistent with her subsequent evidence in Court that was of a rather graphic nature, describing the accused kissing her on the lips with his tongue during the ‘humping’ incident on the couch. During her evidence-in-chief, the complainant gave the following evidence on this topic:
QAnd what happened next.
ASo what happened next was then he, like, started kissing me.
QWhat sort of kissing.
AWell, I don't know the names of it but it was like with his tongue as well.
QWhere did his tongue go.
AIt didn't go into my mouth, it was just like trying to, I guess.
QAnd what did you think of that.
ADisgusting, it was foul, it was really, really gross.[60]
[60] T64.1-11.
The complainant confirmed that this kiss was not disclosed to the police during the recorded interview.[61] She further stated under cross-examination that she did not, as far as she remembered, tell Dr Kalro that the accused never kissed her apart from on the cheeks.[62]
[61] T96.37-38 and T97.1.
[62] T97.8-10.
Insofar as there is a discrepancy between the versions provided by the complainant and Dr Kalro, I prefer the evidence of Dr Kalro.
Again, this second inconsistency is not on a peripheral matter. It is central to what was described by the complainant as ‘the highest escalation of what happened’.[63] The complainant disavowed this under specific questioning from Dr Kalro during the course of the forensic interview on the day the revelations came to light, 7 October 2020. Whilst I accept that certain details may be omitted from a narrative recounting allegations of abuse, in the circumstances of this case, I regard this as a material inconsistency operating adversely against the credibility and reliability of the complainant.
[63] T63.7.
Thirdly, the complainant stated that the accused would insert his finger into her vagina every single day from the start of term 2.[64]
[64] T243.13.16.
I will return to the significance of the inconsistencies shortly.
Inherent unlikelihood of offending following April disclosure
In assessing the likelihood or otherwise of the offending conduct taking place without detection, it is important to consider the evidence of Ms U. In assessing Ms U’s evidence, I accept that she had a sometimes difficult relationship with the complainant. Whilst it may have been that from time to time her treatment of the complainant was harsher than the treatment of the other children, this in no way appeared to impact upon her evidence. I found her to be a truthful and reliable witness.
The evidence of Ms U, together with the evidence of FE, painted a picture of the household being extremely busy. It was a relatively small property. This is confirmed by Exhibit P2, the photographs taken of the property. The bedroom of the complainant where the majority of the offending is alleged to have taken place was in close proximity to the master bedroom, with a line of sight between the two.
The children of the household were often up and about at differing times. Children would be up past their bedtimes and would also wake up early, often to watch television on the weekends. The layout of the house would require all members of the household to walk past the complainant’s bedroom to access the living area. The complainant’s bedroom was bed 4, though she had moved rooms.[65]
[65] T52.
Following the recanted disclosure on 16 April 2020, Ms U became hypervigilant about the interactions of the complainant with the accused. The hypervigilance included the imposition of a set of rules, including that the complainant was not to be alone with the accused at any time, that the complainant’s bedroom door had to remain open at all times, and that the accused was only to speak to the complainant in her bedroom while standing at the bedroom door or while someone else was present in the room with him. Ms U said that this was something she was certainly strict about.[66]
[66] T196.8-13.
Ms U confirmed that her focus was on close scrutiny and maintenance of the rules.
Whilst I accept that sexual offending against children can often occur in the most brazen circumstances, I find it inherently unlikely that the accused would be able to offend in the manner suggested by the complainant, that is, on a daily basis over an extended period of time, in the circumstances that existed in this household.
Assessment of the complainant’s credibility and reliability
Whilst 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 her 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.[67]
[67] Murray v The Queen (2002) 211 CLR 193 [57].
Conclusion
On the whole of the evidence, and in particular given the nature of the allegations, the inherent unlikelihood of the circumstances in which such offending was said to have taken place, the willingness of the complainant to tailor her evidence when confronted with objective difficulty, the fact that the complainant had recanted similar allegations previously, the inconsistencies as to matters of significance in terms of the nature and frequency of sexual activity, 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.

I find the accused not guilty.