R v Miller

[2023] SADC 159

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v MILLER

Criminal Trial by Judge Alone

[2023] SADC 159

Reasons for the Verdict of his Honour Auxiliary Judge Barrett 

22 November 2023

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 the teenage daughter of a friend.

The accused gave evidence denying the charge.

Held

The accused is Guilty.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 34L(1)(b) and s 34P; Mental Health Act 2009 (SA), referred to.
QYFH v The Minister for Immigration [2023] HCA 15; Hinton v Mill [1991] 57 SASR 97 at 99-100; Douglass v R [2012] HCA 34.; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242; [2013] SASCFC 46; Liberato v R (1985) 159 CLR 507, [1985] HCA 66, applied.

R v MILLER
[2023] SADC 159

Criminal

1. The accused is charged with an Maintaining Unlawful Sexual Relationship with a Child. It is alleged that between 2000 – 2006 the accused committed the 11 sexual acts set out in the Information. In those years the complainant was aged between 11 and 17 years. The evidence at trial suggested that the offending occurred when she was aged between 12 and 16. Between the charged dates the accused was aged between 26 and 32. He was a friend of the complainant’s mother.

2. The accused elected to be tried by Judge Alone.

3. I reproduce the Information.

   Statement of Offence

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

   Particulars of Offence

   Joel Marc Miller between the 1^st day of January 2000 and the 31^st day of January 2006, at Lobethal and other places, maintained an unlawful sexual relationship with JAM, a person under the age of 17 years, by engaging in two or more sexual acts with or towards JAM, namely:

   a)   touching her bottom;

   b)   kissing her on more than one occasion;

   c)   rubbing his genitals against her genitals on more than one occasion;

   d)   exposing his penis to her on more than one occasion;

   e)   inciting, causing or procuring her to touch his penis on more than one occasion;

   f)   touching her vagina on more than one occasion;

   g)   inciting, causing or procuring her to perform an act of fellatio upon him on more than one occasion;

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

   i)    inserting his finger into her vagina on more than one occasion;

   j)    inserting his penis into her vagina on more than one occasion; and

   k)   inciting, causing or procuring her to pose naked for photographs.

   The Trial

4. The prosecution called evidence from the complainant, her brother RB, her mother CB, two Elders from the Jehovah’s Witness Church, a family friend and the investigating officer. The complainant was 34 when she gave evidence.

5. The accused gave evidence and called a friend to give brief evidence. The accused was 50 when he gave evidence.

6. Exhibits were tendered by both parties and there were agreed facts.

   Case for the Prosecution

7. The complainant’s brother is two years older that she. Their parents separated when the complainant was aged about three. Their father died when she was 10. Her mother never remarried. The accused’s mother, CB, became a member of the Jehovah’s Witness Church about the time of the separation from her husband. CB remains a member. The complainant and her brother were baptised in the faith as children and again as adults. The complainant’s brother remains a member of the church. She does not.

8. The accused was brought up by a family who belonged, and still belong, to the church. For a relevant period, the accused was not a member. He was disfellowshipped, or excluded, from the church for a period. That period of exclusion assumes some importance in the trial.

9. The complainant says the accused began offending against her by touching her on the bottom at a church camp when she was about 12. The offending escalated to the 11 forms of the particularised sexual acts, including penile/ vaginal sexual intercourse. It did not stop until there was a confrontation at the family home in January 2005 when she was 16. The offending occurred at several locations, including in her own bedroom. She said the accused would call at her window at night. The case for the prosecution is that the accused has made partial, implied admissions to the Elders of the church.

   Case for the Defence

10. The accused denies the offending on oath. I bear in mind that the accused was not obliged to give evidence, but having done so, I treat his evidence in the same way that I do that of other witnesses.

11. The defence case is that the complainant’s evidence is untruthful and unreliable. She has made inconsistent statements. The complainant may have a motive to lie out of a desire to seek attention. Her evidence is unsupported by other testimony and is contradicted by some. There is no reliable evidence of complaint. The accused has not made admissions of sexual offending. He has admitted going to her bedroom at night on three occasions, but only for the purposes of counselling her. The accused is at a significant forensic disadvantage given the lapse of time between the offending, which is alleged to have occurred between 2001- 2005, and 2019 when he was arrested.

    Complainant’s Evidence

12. The complainant says that her parents separated when she was very young, around three years old. Her brother is two years older that she. Her mother joined the Jehovah’s Witness church about the time of the separation. A feature of the faith is that members of the church should have limited social contact with non-members. Non-members are described as “worldly”. Church attendance, bible study and proselytising are important and frequent observances of faithful members.

13. The complainant’s mother met the accused when the complainant was about five. The accused and his family were members of the church. The accused was about 21 when the two met. The complainant’s mother was aged about 33. There is no suggestion of any relationship other than friendship between the accused and the complainant’s mother. At times they carried out church obligations such as door knocking together. At times the accused frequently visited the complainant’s family and socialised with the mother. The accused holidayed with the family in Queensland in 2003. The complainant’s mother suggested the accused begin bible studies with the complainant’s brother. The accused and the brother became friends despite the 14-year age difference between them.

14. The complainant and other witnesses fix events by reference to the schools the complainant attended. Her birthday is in January. She completed primary school at Lobethal in 2001. She spent her first year of secondary school in 2002 at the Birdwood High School when she was 13. The rest of her schooling from 2003- 2005 was at the Oakbank Area School, from ages 14-16 when she was in Years 9-11.[1]

    [1]   Exhibit P 13 Agreed Fact 7

15. The complainant said the accused spent more time with her family after her father died in 1999.  Her father committed suicide. The complainant’s mother asked the accused to come with her and the children to the father’s house to retrieve some belongings. In 1999 the complainant was 10 and the accused was 26.

16. The complainant says that she underwent puberty when she was 12. She turned 12 at the beginning of her last year in primary school. She noticed the accused becoming flirtatious towards her. He and her brother would refer jokingly to girls having “nice hair” when they meant breasts.[2] There was once a balloon water fight going on between her, the accused, and her mother. The accused made reference to being able to see her mother’s breasts. He pulled her own wet t-shirt forward and said that he could see hers too.[3] The complainant said that that was an example of the accused beginning to touch her clothes.

    [2]  T 41

    [3]  T 42

17. The complainant said that the accused started touching her sexually on a church camp when she was 13. She was in her first year at high school. She said that she was at the camp with her mother and brother. She named other people from the local congregation who were also there. They included the accused, his then girlfriend and the girlfriend’s brother. The complainant had consumed alcohol. She said she was “pretty sure” that the accused provided her and her brother with the alcohol.[4] At one stage the group was playing a game at night called Spot the Lantern. The complainant was crawling along the ground. The accused was crawling behind her. He said that the view from where he was, was nice. He grabbed her bottom. She was shocked.[5]  She did not tell anyone because she believed that she would get into trouble.[6]

    [4]  T 54

    [5]  T 53

    [6]  T 54

18. The complainant said that the accused visited her home when her mother was at a seminar or conference in Perth. Her brother was either at school or at work. The complainant wagged school to spend time with the accused that day. She was in Year 8 during 2002. That was the only year she attended the Birdwood High School. She said that she and the accused wrote a note to the school saying that she would be late. In the mother’s bedroom they were rubbing genitals together. The house phone rang and she went to the kitchen to answer it. She thinks it was her mother on the phone. While she was on the phone the accused came to the kitchen completely naked. It was the first time she had seen a naked man. Later the accused dropped her back at school.[7]

    [7]  T 55- 57

19. The complainant gave evidence of an occasion when she performed fellatio on the accused. The accused had been at her place having drinks with her mother. He left in his car. Her mother went to bed. The accused parked his car down the road and walked back. He came back and entered the house through her brother’s window. The complainant joined the accused and her brother and drank some alcohol. She and the accused left the brother’s bedroom which led to a breezeway separating two parts of the house. Outside the toilet off the breezeway the complainant masturbated the accused and performed fellatio on him. It was the first time that she had ever done that. She was in Year 8 or 9 at the time. That was a sexual act which occurred on later occasions as well.[8]

    [8]  T 57- 59

20. The complainant said that the accused committed unlawful sexual intercourse by having digital sexual intercourse with her. He picked her up from the Oakbank school during the day. She was in Year 9. They went to a car park in the hills. The act occurred in the backseat of the accused’s car. The complaint said she bled during the act. The accused questioned her about whether she had sex with anyone else.[9]

    [9]  T 59- 60

21. The complainant said that that act occurred on another occasion in the accused’s house. Despite her menstruating the accused insisted on proceeding. On the same occasion, the accused took photos of her when she was partially or wholly undressed.[10]

    [10]  T 61- 64

22. That same night the complainant saw her family’s contacts entered into an electronic address book. The entry was saved under her name. When she asked the accused how that came to be he said that he had loved her since she was five.[11]

    [11]  T 64

23. The complainant said that the first time the accused ever had penile/ vaginal sexual intercourse with her was when he accompanied her family on a holiday to Queensland. It is relatively common ground between the complainant, her mother, her brother and the accused that the complainant’s family and the accused attended a Jehovah’s Witness Convention in Sydney around the 11^th and 12^th December 2003. Thereafter the party of four drove from Sydney to Tweed Heads in the mother’s car. They towed a camper trailer. Although there is some divergence among the witnesses about the details of that trip, the group either visited or stayed with friends in the area and visited or stayed in an apartment owned by the daughter of the friends.

24. It is also common ground that some disharmony broke out between the accused and the complainant’s mother such that the accused was asked to leave. He tried to buy a ticket home on or about Christmas Day but was either unable to obtain a ticket or unable to afford one. He stayed with the party until the end of the holiday. The complainant turned 15 in early January 2004. The party was still on the holiday when she had her birthday.

25. The complainant thought that the party stayed at the daughter’s apartment. Others thought that they only visited during the day. The complainant said that during the day when they were at the apartment her mother went shopping. Her brother was out somewhere. It is common ground that the owner of the apartment was not there. She had allowed the party to either visit or stay there while she was away.

26. The complainant said that while she and the accused were alone in the apartment they went upstairs and for the first time had penile/vaginal sexual intercourse. The complainant said that she did not know whether the accused ejaculated. She has no recollection of him using contraception. The complainant said that on other occasions of them having penile/ vaginal sexual intercourse, the accused did ejaculate but she had no recollection of him ever using contraception.[12] The complainant said that on that occasion she did not bleed. The accused kept asking her whether she had sex with anybody else.

    [12]  T 71

27. The complainant said that the accused would have penile/ vaginal sex with her in her own bedroom. He would visit her mother to have drinks. He would leave, park his car away from the house, then walk back and come in through her bedroom window. They would have sex there, but on other occasions the accused would take her from her bedroom to his house. The complainant said that she found that she was getting tired during the day due to a lack of sleep. Her mother commented on her apparent tiredness.[13]

    [13]  T 75-76

28. The complainant said that she remembered a conversation the accused had with her on an occasion when he performed cunnilingus upon her.  He asked, in relation to her vagina, whether she had an “innie” or “outie”. She said that was something she had never thought of. It was something she did not know about.[14]

    [14]  T 76

29. The complainant said that the accused took her to the nude section of Maslins Beach twice. She said the first time it was proposed by the accused the night before. He rang her on the mobile phone he had given her. He arranged to pick her up from school. He told her he had bathing G-strings for her to wear. She would have to shave off the hair near her vagina. She said she attempted to do that but did so imperfectly. She said that she was at Oakbank school by then so she thought she would have been 14.

30. She said that at the beach she felt out of place and was worried that the people would notice how young she was. She said that they drove to and from the beach via Adelaide. On the way back the accused asked her to push her seat back and lie down because he was worried that her mother was in the next car on Glen Osmond Road. It was feared she would be travelling from the city to the hills from the school she was then attending in Adelaide.[15]

    [15]  T 77-79

31. The complainant said that all she remembers about the second visit to Maslins Beach was that the accused was kissing her and she was wearing black board shorts. She was also wearing a red tubular bikini top which she took off.[16]

    [16]  T 80

32. The complainant said that she was 14 and at Oakbank Area School when the accused gave her a mobile phone. Her mother and brother did not know about it. The complainant turned 14 in January 2003. That was the year she moved to the Oakbank Area School to begin Year 9.

33. The accused agrees that he gave her a mobile phone which her family did not know about, but he says that did not happen until after he was disfellowshipped from the church for reasons unconnected with this trial. He did so to counsel her through difficulties she had. It was necessary to keep those communications secret because, during disfellowship, he should not be communicating with church members, nor they with him.

34. The complainant said she remembered details of a specific occasion when the accused performed cunnilingus on her. She said that she believed she was on a camp at the time. She had not showered for some days and felt embarrassed by being dirty. She thinks the camp was at Deep Creek. The accused took her away from the camp on his blue and white Yamaha motorcycle. They stopped on the side of the road where the sexual act occurred. She was 14 or 15 at the time.[17]

    [17]  T 81-82

    The night of the confrontation

35. I turn to the evidence relating to the night when there was a confrontation involving the complainant’s family and the accused. All four witnesses gave evidence on this topic. Each gives a slightly different account. I deal with this discreet topic separately from the evidence of the complainant because it crystalises several issues in the trial.

36. It will not be necessary, in my view, to make findings about every aspect of the events of this night, but some do require resolution. Rather than detail each account, I will focus on the aspects which are relatively common ground between the witnesses and other aspects which require findings.

37. The incident occurred in January 2005. The complainant turned 16 early in January. She was in Year 11, her last year at high school. The complainant said the accused had been coming to her bedroom at night via the window, and there having sexual relations which her. Sometimes he took her from there to his place. The accused denied that. He said that before this night he had visited her there twice to counsel her about problems she raised with him because she was not able to discuss them with her mother. Because the accused was disfellowshipped from his church he should not be socialising with church members, and they should not be socialising with him. He had made several unsuccessful attempts at being reinstated. Because he did not want to jeopardise his chances of readmission to the church, he kept his meetings with the complainant secret from, amongst others, the complainant’s family.

38. It is common ground that on this evening the accused went to the complainant’s bedroom window. It might have been around 10.30 pm. The accused said that the complainant had contacted him a few days earlier seeking support. He had not told her he would be coming. She was not there. She had gone out with a young male friend. Finding that the complainant was not there the accused went to her brother’s window and told him that she was not in her room.

39. There are varying accounts of exactly who did what next, but the common ground is that the complainant was returned to the front of her house by a young man in his car. Shortly after that she, her brother and the accused were together outside the nearby primary school. The three of them had moved away from the complainant’s house. There are differing accounts about what happened between the complainant getting home and the three being outside the primary school, but in my view, it is not necessary to resolve those differences.

40. The accused was undoubtedly angry towards the complainant. He says that was because he felt betrayed by her. He was counselling her about her difficulties, but she had left her house at night to be with a young man. He was jeopardising his chances of readmission to the church by counselling her, and as a result of the events of this night, his visits may be disclosed to the church Elders. He demanded that the complainant return the mobile phone he had given her. He smashed it on the ground. He denied that the complainant said anything outside the school about their having had sexual relations.[18]

    [18]  T 441-447

1. The complainant said that outside the school the accused demanded the phone from her. She gave it to him. He threw the phone at her but missed. The phone smashed on a brick wall behind her. The accused said the phone was meant for her to contact (only) him. Her brother asked what was going on. The complainant told him that she had been having sex with the accused. Her brother was the first person she told. She went on to say that she told the accused that she was “done with” him. She had met a boy her own age.[19]

   [19]  T 83-88

2. The complainant’s brother said that outside the school the accused was angry towards his sister. The accused was questioning her about who she had been with that night. His sister replied that the young man was someone from the army she had met. When the accused asked her what she was doing with him she replied that she was having sex with him because she wanted to. He described the exchange between the accused and the complainant thus – “It was almost like there was a little bit of a, like lover’s squabble. There was obviously, something going on between them, more than just friends.”[20] In cross-examination the brother was clear that his sister had not said anything outside the school about having sex with the accused.[21]

   [20]  T 212

   [21]  T 218

3. It is common ground that it was decided that the group would go back to the house where the complainant’s mother would be told about what happened.

4. Differing accounts are given by all witnesses about what had happened back at the house, but again there is some common ground.

5. The complainant went into her mother’s bedroom alone and woke her up. Her mother got up and appears to have been spoken at times with the complainant on her own and the accused on his own. What was said or heard by the brother is not clear.

6. The complainant says that the accused was outside the house when her mother got up. They went to the back door and her mother let him in. The accused broke down and cried. The complainant took her mother aside and had a conversation on her own in the breezeway. She said she told her mother that she had been having sex with the accused.[22] By then her brother had gone to his bedroom. It is not clear what the complainant did next, but she gives no evidence about being present during any later conversations her mother had with the accused.

   [22]  T 84, 90

7. The accused said that after he was let into the house by the complainant’s mother, they had a discussion. He makes no mention of what was said before the complainant took her mother aside. He did not hear what was said between them. His evidence suggests that the complainant went to bed after speaking with her mother. He makes no mention of any conversation involving her after that. He says he spoke with the complainant’s mother. The brother was present for some of that conversation, but he then went to bed.

8. The accused described himself as being in an emotional state whilst speaking to the mother. He said he realised that because of the efforts he had made to go to the complainant’s window and support her, he would not now be reinstated with the church. He said he apologised to the mother. He said he knew that the family would have a hard time with the complainant. He realised he needed to get away from that scenario and look after himself.[23] He said that while talking to the mother he was lying face down on the loungeroom floor. He said he was having “a bit of a psychological meltdown”.[24] He was concerned that the complainant would “die at Armageddon”. He heard no one that night say anything about his having sexual involvement with the complainant. He denied saying to the mother, in relation to activity with the complainant, “nothing below the waist”.[25] The accused said that he did not know what the complainant had told her mother.

   [23]  T 448

   [24]  T 449

   [25]  T 450 and 609

9. In his conversation with the mother, he wanted to make sure that he confirmed what happened that night.[26] There was nothing about the mother’s behaviour on the night to indicate she had heard anything untoward about him.[27] He said that the following day he heard from his mother that the complainant was making some sexual allegations against him.[28] The complainant had said that the following day the accused’s mother had visited her mother. The two went to the same congregation of the church.

   [26]  T 606

   [27]  T 608

   [28]  T 615

10. The brother has no recollection of conversations at the house.[29]

    [29]  T 214

11. The mother has little recollection of what was said. She said that she did not remember words. She just remembered “the scene”.[30] She said the accused was “flinging himself on the ground, wailing away, telling me it was all her fault”.[31] The accused was “feeling sorry for himself”.[32] She remembered having a discussion with the accused and her daughter separately. She remembered the accused saying, “I never did anything below the waist”.[33] In cross-examination she said that the accused had said that to her and she presumed that is was on that night.[34] She was never asked in court how that statement came to be made.  She was never asked what her daughter told her separately. No evidence of complaint was given by her.

    [30]  T 267

    [31]  T 267

    [32]  T 268

    [33]  T 269

    [34]  T 291

12. In cross-examination she agreed that in a statement she made to the police on the 15 November 2016, she said that the accused said “nothing below the waist” at some point but she could not remember when.[35]

    [35]  T 269

    Cross-examination of the Complainant

13. The complainant said that she had gone to the police when she was 21 (in 2010) She said she was there told that if her allegations were just circumstantial evidence, she would be opening up a can of worms. She did not pursue the matter.

14. The complainant acknowledged that she had given a 50-page witness statement in 2016. No evidence was led about why proceedings did not commence then.

15. It is an agreed fact that in addition to the statement in 2016, the complainant executed one affidavit on 8 November 2019, two on 13 May 2021, and one on 27 May 2023.[36]

    [36]  P 13 Agreed Fact 14

16. Prior inconsistent statements comprise agreed facts 15 and 16 of P13. Agreed fact 15 concerns what I regard as a relatively unimportant inconsistency about a detail of the confrontation night.

17. Agreed fact 16 says that in her 2016 statement the complainant did not mention the accused preforming cunnilingus upon her.

18. Agreed facts 17 and 18 refer to medical records, aspects of which I will discuss separately.

19. Counsel for the accused was given leave pursuant to section 34 L(1)(b) of the Evidence Act to ask the complainant about conversations she had with the accused about sexual activities with other people. Leave was given only for the purpose of eliciting conversations about such matters.[37]

    [37]  T 112-120

20. Leave was given on the basis that discrete accounts of such matters in three contexts were essential to the accused’s defence. It was foreshadowed that the accused’s defence would be that before his disfellowship from the church in August 2004 the complainant had confided in him about sexual matters, and he had counselled her.

21. Between August 2004 and January 2005, the accused had visited her bedroom window at night to continue supporting her. That happened only twice before the confrontation night.

22. On the confrontation night, the complainant had, it was put, said that she had had sex with the young man because she wanted to. That suggested utterance caused the accused to feel betrayed in his efforts to assist her. That explained his despair on the night, not, as the prosecution suggests, the despair of a deceived lover.

23. Agreed fact 18 is a progress note of the Royal Adelaide Hospital during an admission by the complainant in July 2010. It is to the effect that the complainant said she had been sexually abused by an old family friend when she was aged between five and seven, and then by her mother’s boyfriend until she was 12.

24. The complainant was cross examined on each of these topics. In relation to discussions with the accused about sexual experiences, the complainant acknowledged that she had such conversations. She agreed that she had a conversation with the accused about her self-harming when she was in Year 9. She was 14 in Year 9.[38]

    [38]  T 137

25. She was asked whether she had talked to the accused about consensual sexual encounters she had had with boys at school. She agreed that she had but said that the accused had asked her about sexual encounters.[39] In her examination-in-chief she had said that on several occasions when she and the accused were engaging in sexual acts, he would ask her whether she had had sex with anyone else.

    [39]  T 138

26. She declined to answer when it was put to her, in respect of that last topic, that the accused believed her account whereas her mother did not.[40]

    [40]  T 138

27. In cross-examination the complainant disagreed that she had asked the accused for his old mobile phone so she could contact him when she felt down. She said he gave it to her so that they can communicate about having sex.

28. She disagreed with the suggestion that the accused only ever came to her window after he was disfellowshipped, only twice, and only at her request for support. She went on to say that she now disliked being called “Jaz” because the accused would come to the window calling out that name.[41]

    [41]  T 140

29. In examination-in-chief the complainant said that on the occasion when she had wagged school and was on her mother’s bed with the accused the phone rang. She thought it was her mother on the phone. She agreed that in her statement in 2016 she said she thought it was the school trying to find out why she wasn’t there. In court she said that she cannot now remember who it was who rang but the phone call was about her not being in school.[42]

    [42]  T 151

30. In relation to the complainant’s evidence about the first time she committed fellatio with the accused, the occasion in the breezeway outside her brother’s bedroom, the complainant said her brother would not see what she was doing if he walked out of his bedroom because she and the accused were around the corner of the breezeway. She agreed however that if he went to the kitchen or the toilet he would see them.

31. In relation to the same topic, she said in examination-in-chief that the accused had earlier been drinking with her mother. He had driven away but returned on foot.[43] In cross-examination she agreed that in her 2016 statement she had said that her memory was that her mother had been away, and the accused was looking after her and her brother.[44]

    [43]  T 57-59

    [44]  T 156

32. The complainant was asked whether the accused had ever used contraception after they started having penile/vaginal sexual intercourse. She said that she could not remember him having done so. When asked whether she and the accused had ever talked about the risk of pregnancy, she said that on one occasion the accused came to her bedroom window and said, “Let’s get you pregnant so they can never tear us apart”.[45]

    [45]  T 163

33. The complainant was asked questions about her account of the accused preforming cunnilingus on her. She had said that she remembered there being two such occasions, one on the side of the dirt road where she had been taken on the accused’s motorcycle, and the other in her bedroom when the accused had asked her about aspects of her vagina. When it was put to her, she agreed that she had not mentioned cunnilingus in her 2016 statement and had only mentioned the dirt road incident in her second statement in 2019.

34. The complainant became upset when she was asked whether her memory had improved since 2019. She explained how embarrassed and confused she became when the accused questioned her about her vagina. She said her memory of that event had been recently prompted and it had led her to mention it in her most recent statement, the one executed shortly before the trial began.

35. When asked what had prompted the memory the complainant gave an extended answer in an upset manner. In the course of that answer, she referred to the “probability” of her memory being triggered by the fear of the trial being put off because the Judge listed to hear it had caught COVID.

36. I will discuss later defence counsel’s criticism of these answers,[46] but the gravamen of the criticism is that the complainant gave her statement on 27 May 2023, a few days before it was known that the Judge contracted COVID. The trial was transferred to me on short notice to avoid it being put off.

    [46]  T 174 - 175

37. When pressed further on this point the complainant became more upset.[47] Questions followed about her mental health, including her being detained for four days under the Mental Health Act in 2010.[48]  She was asked about her drug use[49] and a possible financial motive to make false allegations.[50]

    [47]  T 176 - 177

    [48]  T 178 - 182

    [49]  T 183 - 186

    [50]  T 186 - 187

    The complainant’s brother RB

38. RB is still a member of the Jehovah’s Witness Church. (His mother said that he is married to the daughter of Mr Van den Brink, the retired elder who gave evidence).[51]

    [51]  T 291

39. It is necessary only to mention a few aspects of RB’s evidence.

40. He could not remember the accused sneaking into the family house at night. He could not recall drinking alcohol with the accused and the complainant.[52]

    [52]  T 215

41. He is clear that on the confrontation night his sister did not tell him that she had been having sex with the accused.[53]

    [53]  T 218

42. He agreed that he and the accused did talk about women having “big hair” when they meant breasts.[54]

    [54]  T 215- 218

    The complainant’s mother CB

43. I refer only to specific topics of the mother’s evidence.

44. During the holiday in Queensland around Christmas/ New Year 2003 – 2004, CB said that there was an occasion when she walked into the camper trailer. There she saw the accused and the complainant lying on two mattresses with their hands touching. She saw them “jumping apart”.[55] She got very annoyed as the holiday progressed. She felt increasingly alienated from the accused and both her children. As a result, she asked the accused to leave but he told her that he could not get a flight.

    [55]  T 264

    The Elder, Mr Ronald Van den Brink

45. It is not in dispute that the accused was disfellowshipped from the church by a notice dated 9 August 2004 (MFID 6) and he was reinstated by a notice dated November 2007 (MFID 7).

46. Mr Van den Brink was given leave to refresh his memory from the notes the Elders made at a hearing convened on 23 January 2006. The meeting was to consider the most recent application by the accused for reinstatement. Mr Van den Brink is now retired as an elder, but he chaired the meeting. He was also a member of the panel with disfellowshipped the accused in 2004.

47. Mr Van den Brink explained that an important consideration on an application for reinstatement is the degree of repentance that is exhibited by the applicant.

48. The reason for the accused being disfellowshipped in 2004 had nothing to do with the complainant. It had to do with a relationship the accused had had with a women called Deanna.

49. However sometime in mid-2005 Mr Van den Brink and another elder had met with the complainant and her mother. Although no details were given of the conversations they had, Mr Van den Brink said that there was a discussion about a relationship between the complainant and the accused.[56]

    [56]  T 363

50. Sometime in 2005 the accused applied to the Mount Lofty Elders to be reinstated. The accused had transferred from the Woodside congregation to the Mount Lofty congregation to distance himself from the complaint’s family, who were members of the former congregation. The application was refused.

51. That refusal, and possibly the reasons for it, were brought to Mr Van den Brink’s attention at Woodside. In a letter dated 8 November 2005 (MFID 8) Mr Van den Brink and another Elder wrote to the Sydney branch of the church saying that they saw no need to interview the accused because the Mount Lofty branch had declined his application and they would have agreed with that decision.

52. In the letter they said “Of note is the omission of the mention of any relationships occurring after his de fellowshipping or of one taking place with [the complainant]” It was put to Mr Van den Brink that, as at the date of this letter, the accused had adamantly denied any sexual involvement with the complainant. Mr Van den Brink had said that at that time he had had no discussion on that topic with the accused. However, the letter suggests that the accused had made a denial to the Mount Lofty committee. The letter said “It must be stated that the judicial committee asked him if there was any sexual involvement with [the complainant]. He adamantly denied this.”[57]

    [57]  T 346

53. Mr Van den Brink agreed that at the meeting he chaired in January 2006 it was important to him that the accused mention his relationship with the complainant.[58]

    [58]  T345

54. Mr Van den Brink agreed that during the meeting the accused said he was aware that the complainant had told her mother and his mother that she and the accused had had sexual intercourse on one occasion in late 2003 (this was never put to the complainant as a prior inconsistent statement)[59]

    [59]  T 245 - 246

55. Mr Van den Brink agreed that before the accused said anything to the meeting about the complainant baring her breasts and he touching them, he, or a panel member told the accused that the complainant had made strong allegations against him. The accused was also asked if he had ever behaved inappropriately with a minor.[60]

    [60]  T 246 and 362

56. Mr Van den Brink said that the accused replied “nothing below the waist”.

57. Mr Van den Brink was questioned about another note in the minutes to this effect “Joel was asked if he had spent time alone with her. He answered that there had been many occasions even after his disfellowshipping. These occasions were often for a few hours. Sometimes he went to her bedroom window at night and into her room. At other times she went with him to his house”.[61]

    [61]  T 363

58. It was not put to Mr Van den Brink that the accused had not said that he went into her room, nor that at other times she went with him to his house. What was put to Mr Van den Brink was that the accused actually said that there were many times that he had spent time alone with the complainant but not that there were times that he had been to her bedroom window. Mr Van den Brink replied “I would say that be true” I took him to mean that he was accepting what was being put to him in cross-examination.

59. Mr Van den Brink agreed that in the weeks after the meeting he and another elder visited the complainant and her mother and discussed the allegations, and the accused’s responses to them at the meeting.[62]

    [62]  T 365

60. Another of the Elders from that meeting was called. Mr Elliot said that the notes MFID 8 were an accurate reflection of what happened at the meeting in January 2006.[63]

    [63]  T 381

61. The officer in charge of the investigation of the complainant’s allegations, Brevet Sergeant Melissa Chadbourne, became involved in the investigation in 2016 as a result of a referral letter from the Royal Commission into Institutional Response to Child Abuse. Following the letter the officer approached the complainant.

    The accused’s evidence

62. The accused gave evidence. He gave unchallenged details about his background, including his relationship with the woman which lead to his being disfellowshipped. I bear in mind that the only permissible use of that evidence is to explain his being disfellowshipped in August 2004.

63. The accused denied any sexual impropriety with the complainant. He agreed that he spent one night at her place while her mother was on a school camp. The complainant would have been 13 at the time. He said that the complainant was at his place for a couple of days when she was 15 while he was away. She was house sitting. The accused said that in 2004, after he came back from the church convention in Sydney and the Queensland holiday with the complainant’s family, he had a five-month relationship with a woman called Ashley who lived in a country town.[64] That and other commitments meant he spent less time with the complainant’s family then he had formerly done.

    [64]  T 427 - 428

1. Nevertheless, the accused said that he had conversations with the complainant in which she said she had been bullied and raped at school. He had heard adverse reports from other people about her (“… a certain reputation was being developed”).[65]

   [65]  T 429

2. The complainant told him she was sexually involved with a boy at school when she was 14. [66] He detailed other conversations he had with her in which she spoke of sexual matters. [67] She said that what really upset her was that she had talked about it with her mother and her mother did not believe her.[68]

   [66]  T 430

   [67]  T 431

   [68]  T 431

3. The accused said that when the complainant was 15, she persistently asked him for his old phone. He gave it to her on her promising not to have contact with worldly people.[69]

   [69]  T 432

4. The accused said that after he was disfellowshipped in August 2004, the complainant contacted him saying she would like to talk to him about things that were upsetting her. She suggested he come to her window at night so they could talk. The accused went there only twice before the confrontation night. He said he resisted going there but he felt that she needed support and that that she was not otherwise getting.[70] He denied ever climbing through her window.

   [70]  T 441

5. He said that in the days before the confrontation night the complainant contacted him wanting to talk. She was not getting any support from her mother. The accused was worried about her mental health. He could not discuss these matters with her mother because he should not be having any contact with members of the church.[71] He went to the complainant’s window at about 10.30 pm. I do not here detail the accused’s examination-in-chief about that night. I have already dealt with that topic separately.

   [71]  T 443

6. The accused denied specific allegations made by the complainant, namely the initial touching on the bottom at the church camp, the alleged fellatio outside the brother’s bedroom, the alleged first penile/vaginal intercourse in Queensland and the alleged visits to Maslins Beach.

7. He also denied taking the complainant on his motorbike. More specifically he denied committing cunnilingus upon her having taken her on his motorbike to a dirt road. He produced a picture of a motorbike which he said was the same as the one of the ones he had.[72] The bike in the picture would certainly not accommodate a passenger. The accused said nothing about the other bike he owned. Agreed fact 12 refers to two Yamaha motorcycles the accused owned until 2007. There is no record of when they were acquired. The accused thought he purchased one of them around 2002 – 2003.[73] I bear in mind the forensic disadvantage the accused suffers in relation to the topic of motorbikes.

   [72]  T 15

   [73]  T 457

8. The accused said there were two occasions when the complainant bared her breasts to him. The first occasion was in her mother’s loungeroom. The mother had left her room to make a cup of tea. She and the accused were in armchairs watching TV. The complainant’s brother was in front of them on his stomach on the floor. The complainant bared her breasts and smirked at him.[74]

   [74]  T 460

9. The second occasion was on the Queensland trip. The accused was swimming with the complainant and her brother. Where waves were breaking the complainant “kind of jumped on top of me” exposing her breasts as she did so. She had pulled her bikini top sideways. The accused put his hands up “because her bodyweight was going to hit me” and in so doing made contact with her breasts.[75]

   [75]  T 461

10. The accused was asked whether, apart from the two occasions just mentioned, he had ever touched the complainants’ breasts. (In fact, in the case of the first incident he does not say that he did touch her breasts). He denied that he had.

11. That subject came up in the meeting with Elders in January 2006. I will turn to that topic shortly.

12. The accused said that he was not in a good mental state at the time of that meeting. After the confrontation night in early 2005, he had lived with his parents for about six months. He then moved into a share house with a man who is not a church member. He thinks that the meeting in January 2006 was the third such meeting, each of the other two resulting in rejection.

13. He detailed the applications he made for reinstatement leading up to the January 2006 meeting. He made his first application to the Woodside Elders sometime between his disfellowship in August 2004 and the confrontation night in January 2005. He thinks it was a few weeks before the confrontation night. That meeting discussed only his relationship with Deanna. That application was refused. He understood that the refusal was on the ground that he had tended to blame Deanna rather than take responsibility himself.[76]

    [76]  T 476

14. Following the confrontation night, the accused attended meetings at the Mount Lofty church. He was still disfellowshipped but was entitled to attending meetings. Before the 2006 meeting he applied to the Mount Lofty Elders for reinstatement. The only topic discussed was the relationship with Deanna. He had to explain that relationship again because the Mount Lofty Elders did not know about it. There was no mention of the complainant. That application was rejected.

15. Leading up to the January 2006 meeting the accused applied again to the Mount Lofty Elders but they referred the matter to the Woodside Elders. The meeting in January 2006 was with the Woodside Elders.

16. The accused anticipated that what the Elders wanted to hear from him was a “voluntary admission”.

17. He said that the topic of the complainant came up when he told the Elders that he had had impermissible contact with the complainant’s family. The Elders said that “strong allegations” had been made by the complainant. The accused was asked why he had not discussed those matters at the earlier hearings.

18. The accused said that he had heard from his mother the day after the confrontation night, a year earlier, that the complainant was alleging he had had sexual intercourse with her. He nevertheless said that he was not sure what the Elders meant by “strong allegations”. He had not heard details of the allegations. He is unable to remember how the conversation with the Elders progressed, but he remembered denying having had sexual intercourse with the complainant. He remembered telling them that the complainant had exposed her breasts “at times” and that he had touched her breasts[77]. He did recall saying something like “nothing below the waist”.[78] The accused said that the answers he gave the Elders were truthful.[79] He did not tell the Elders the detail of the events he had spoken of in court, namely the loungeroom and the swimming incident.

    [77]  T 469

    [78]  T 470 - 471

    [79]  T 471

19. The accused said that it did not worry him too much if the Elders were left with the impression that his behaviour was more serious than in fact it was, that is, if they were left with the impression that he had intentionally touched the complainant’s breasts rather than what he had described in court. The accused thought that the offering of an admission might help his case from “a repentance point of view”.[80]

    [80]  T 472

20. Counsel for the accused asked clearly whether at this meeting the accused was willing to admit to anything about his involvement with the complainant which was not true in order to help his chances of reinstatement.

21. This exchange took place:

    Q: Were you willing to admit anything about [the complainant] that was not true to help your chances of being reinstated.

    A: Well, I recall the elders putting a number of things to me and I agree with a number of those things. I conceded rightly or wrongly, because I felt that it would improve my chances of getting reinstated. I mean I feel the elders wanted to hear more from me so I accepted some of those things.

    Q: And in terms of anything involving physical contact and sexual type contact with [the complainant], did you admit anything that wasn’t true in that meeting?

    A: No, I didn’t admit anything to do with sexual contact because that wasn’t true”.

    Cross-examination of the accused

22. The accused said that the complainant became flirtatious with males in general. There were times when she would jump on his back. He did not see that as unusual.[81] At times she was flirtatious with him.[82]

    [81]  T 547

    [82]  T 569

23. The accused said that before he was disfellowshipped the complainant told him she had been bullied at school. After he was disfellowshipped and he went to her window, she told him she had been raped. She said she had told her mother, but her mother did not believe her. The accused said he could not discuss that with her mother because he was not supposed to have contact with members of the church. He said that he did not believe the complainant himself, but he probably gave her the impression that he did.[83]

    [83]  T 564

24. The accused agreed that on occasions he picked the complainant up from school but only when asked to do so by her mother.

25. The accused was asked whether he had told the Elders in January 2006 that he had become angry with the complainant over years of lies and mind games. He replied that he did not remember saying that but that is how he felt.[84]

    [84]  T 626

26. It was put to the accused that at the meeting with the Elders in January 2006 he had said that he had gone to the complainant’s window many times. He denied saying that. His recollection was that he said “a number of times”.  He denied telling the Elders that he had gone into her bedroom. He denied telling them that he had taken her to his place.

27. He did not recall ever telling them that he had taken the complainant for a drive to Goolwa to visit a relative of hers.[85]

    [85]  T 648

28. The accused could not recall telling the Elders that, after his disfellowshipping, he had spent time alone with the complainant often and for a few hours. He said that was not true.[86]

    [86]  T 654

    Re-examination of the accused

29. In re-examination the accused said that the day after the confrontation night his mother visited the complainant’s mother. There the complainant told both mothers that she had had sex with the accused. Both mothers were surprised.[87]

    [87]  T 658

30. The accused was asked when he had first produced to him, and read, the Elders’ notes of the meeting in January 2006. He said it was perhaps three or four years earlier. That had refreshed some memory of what was said. He said “I recall saying that [the complainant] had exposed her breasts and I recall telling the elders that I touched her breasts. I also recall the elders putting a number of things to me that I felt that I should agree to because resisting would have probably not have gone well, they have seen that as not being repentant, so I was trying to be agreeable”.

31. The defence called Ms Caroline Peterson. Her evidence related to the experience she and her now husband had had with the Jehovah’s Witness Church. She knows both the complainant and the accused. On the occasions when she has seen them both together, she noticed nothing unusual about their interaction.

    Addresses

    Ms Foundas for the Prosecution

32. Ms Foundas submitted that the complainant gave her evidence in a considered and careful way. She was a credible and reliable witness. If she is wrong about matters that does not render her unreliable. The allegations cannot be the result of mistake.

33. The complainant’s anger at times during cross-examination is emotionally understandable. At times she plainly expressed humiliation and shame. In particular Ms Foundas drew attention to the complainant’s emotional reaction when recounting the conversation she said she had with the accused about her vagina. The complainant frankly acknowledged that her allegation that the accused had burnt her genitals with hot coals had as its object that her mother would listen to her.

34. Ms Foundas submitted that the complainant’s account of her tiredness due to late night meetings with the accused and her mother’s commenting on it, was credible. It was a reliable recollection of genuine events.

35. Although the complainant’s allegations are of brazen conduct by the accused, that has to be understood in the context of the accused having become a familiar and trusted part of the family. The account of the accused’s escalating behaviour is credible. It started with sexualised comments, progressed to touching and ended up with sexual intercourse. The accused found occasions to be alone with the complainant. He would pick her up from school. He gave her a mobile phone so that they could keep in contact.

36. In respect of the complainant’s account of being sexually abused at ages five and seven and by her mother’s boyfriend until she was 12, it has to be remembered that these references were made in 2010 when the complainant was committed for several days under the Mental Health Act.

37. Ms Foundas submitted that the complainant’s failure to mention the allegation of cunnilingus in her first statement of five has to be understood in the context of a lengthy history of abuse over a period of years from when she was 13 to 16.

38. Ms Foundas submitted that the complainant’s emotional response to the allegation of a financial motive to lie is telling. The circumstances of how the offending came to light tell against that motive. The complainant said that she did not pursue the matter when police told her she might be opening a can of worms. Later it was she who was approached by the police following the Royal Commission. There was a gap of five or six years between the confrontation night in early 2005 and going to the police in 2010. There are another five or so years between then and 2016 when she gave her first statement.

39. Ms Foundas submitted that on the confrontation night when the accused found the complainant was not in her room, he became jealous. He went to her brother’s bedroom window. Her brother was surprised to see the accused but unsurprised to hear his sister was not in her room. This lack of surprise is consistent with the complainant’s evidence that she was going out at times from her bedroom with the accused.

40. Upon being returned to her house and being discovered by the accused, she was tired of her life with the accused and decided to reveal his offending. Whatever was said between the accused and the complainant outside the primary school it looked to the brother as if it was lover’s squabble.

41. Ms Foundas submitted that notwithstanding that the officer-in-charge could find no record of the complainant going to the police in 2010, the complainant’s evidence of the conversation at the police station is credible. The absence of a record may be explained by the failure of an officer on duty to record a complaint which was not pursued. The complainant said she was very discouraged by the police response and so had no confidence to pursue the matter.

42. Ms Foundas submitted that the detail and the extent of the complainant’s account of sexual offending renders implausible the suggestion that she has lied to attract attention.

43. Ms Foundas submitted that I should regard the complainant’s disclosure to her brother as evidence of initial complaint.

44. Ms Foundas submitted that the accused has made implied, partial admissions of sexual offending against the complainant to the church Elders. Mr Van den Brink’s evidence of memory, refreshed by the notes of the meeting, is to the effect that the accused had intentionally touched the complainants breasts when she bared them, although the accused denied touching her anywhere below the waist.

45. The accused told the Elders he had taken the complainant for a drive to Goolwa. Ms Foundas submitted that by his utterance “nothing below the waist” the accused has minimalised his offending but has nevertheless made a damaging admission of sexual contact with the complainant.

46. Ms Foundas turned to the accused’s evidence. She submitted that the accused had sought, but failed, to credibly distance himself from the complainant’s family. The evidence of the three family members indicates that he was closely involved with them. That was particularly so after the father’s death.

47. The accused’s own account of the complainant seeking his support contradicts his claims to a degree of distance. His giving the complainant a phone and turning up at her bedroom window at night do likewise. His accompanying the family on the Queensland holidays is another example of his closeness.

48. The accused’s suggested accidental touching of the complainant’s breasts in the surf was implausible. Further, it is not consistent with what the accused told the Elders.

49. Ms Foundas concluded by submitting that the evidence establishes beyond reasonable doubt each ingredient of the charge.

    Mr Culshaw for the Defence

50. Mr Culshaw submitted that the single most important piece of evidence in the trial is what the accused undoubtedly did on the confrontation night. Finding that the complainant was not in her bedroom he went to her brother’s window to find out where she was. If, as the prosecution alleges, he was having a sexual relationship with the complainant, he would not draw attention to his illicit presence. The relationship was illegal. His very communication with the complainant is contrary to the tenets of his religion. His chances of reinstatement would be jeopardized by communication alone. If, as the complainant says was the case, sexual contact was occurring a couple of times a week, he would have slipped away without drawing attention to his presence. His going to the brother’s window is the action of an innocent man. It is more consistent with someone who is worried about the complainant’s safety.

51. Turning to the accused’s evidence, Mr Culshaw submitted that the accused came across as honest and doing his best to remember the truth. He was polite, unshaken and consistent.

52. Contrary to the suggestion that the accused attempted to distance himself from the complainant’s family, the accused described in a nuanced way his relationship with the family, which waxed and waned depending on what he was doing in other parts of his life.

53. Mr Culshaw submitted that the accused’s evidence was internally consistent. There was no independent objective evidence that undermines anything he said. There is no basis for rejecting this evidence as reasonably possibly true. At best for the prosecution there might be a Calides-type situation where, in the face of two compelling accounts, the truth cannot be determined.

54. Mr Culshaw criticised the prosecution for not putting to the accused that he had fabricated the two breast exposure episodes to fit in with what he told the Elders.

55. Mr Culshaw turned to the evidence of the complainant. He disavowed any reliance on any financial motive for her to lie about the accused.

56. He began his analysis of her evidence by making two broad points. First was the implausible nature of some of her evidence. To offend in the way suggested the accused not only defied the law but also the church to which he was seeking readmission. Some of the alleged offending is outrageously public behaviour. For example the cunnilingus on the side of the road, commenting on the complainant’s breasts in front of her mother and fellatio near the brother’s bedroom. The frequency of offending is unlikely to have occurred in the circumstances of the accused’s other commitments.

57. The second broad point relates to the complainant’s credit. Most tellingly, it was submitted, the complainant tried to sheet home a change in her story to a Judge having COVID. In fact, the story changed before the Judge fell ill. In respect to that issue, Mr Culshaw submitted that the complainant’s evidence was compelling enough fool me. The complainant’s allegations were all uncorroborated. She is a compelling and quick-thinking liar.

58. The complainant admitted that she had lied to her mother and the accused’s former sister-in-law about the accused burning her genitals with hot coals. She said she did so to get attention from her mother. She said she had consulted her doctor a couple of weeks before the trial about the state of her vagina, but there is no record of a consultation since 2003 which related to genital injury or asserted injury.

1. Mr Culshaw submitted that in light of these lies the complainant is a person who cannot be taken at her word. At the very least her word does not provide the moral certainty that the onus of proof requires.

2. Mr Culshaw turned to the specific sexual allegations. The water fight allegation was denied by the complainant’s mother.[88] It is improbable that the accused would have touched the complainant’s bottom on the church camp. His then girlfriend was on the same camp.

   [88]  See mother’s evidence T 284

3. Mr Culshaw submitted that while some prior inconsistent statements by the complainant relate to fairly peripheral matters, others are more damaging. In relation to the allegation of fellatio near the brother’s bedroom, the complainant said that she was anxious about being caught by her mother who had gone to bed. In a witness statement she had said that her mother was away. The accused was looking after her and her brother. The complainant said that she and the accused had been drinking in the brother’s bedroom. Mr Culshaw submitted that the brother denied that.[89]

   [89]  See brother’s evidence T 215

4. Mr Culshaw submitted that the accused is at an obvious forensic disadvantage in relation to the complainant’s generalised evidence about penile/ vaginal sexual intercourse. The complainant gave quite specific evidence of the first time she said that occurred, on the Queensland holiday, but she gave no other specific example. In relation to that allegation, Mr Culshaw submitted it would be unlikely that the accused would take the risk of pregnancy. The complainant could not recollect him every using contraception. Further on that topic, Mr Culshaw submitted that the complainant only once referred to what she now believes was semen coming from her vagina. Otherwise, she was unable to say whether the accused ever ejaculated.

5. Mr Culshaw submitted that the allegation of trips to Maslins Beach are inherently implausible.

6. In respect of the allegations of cunnilingus, Mr Culshaw drew attention to the complainant’s failure to mention that act in her first statement in 2016. In her second statement in 2019, she mentioned only one of the two present allegations, the one on the dirt road travelled by the motorbike. The motorbike photograph D15 demonstrates that that sort of bike would not accommodate any passenger. The accused’s inability to reproduce the motorbikes he owned at the time is an example of his forensic disadvantage.

7. The second alleged act of cunnilingus was not mentioned until her last witness statement taken just before the trial. That is despite the complainant saying that on that occasion the accused had with her the very memorable conversation about her vagina. When pressed in cross-examination about how that memory was revived the complainant mentioned several “probabilities”, including the thought of the trial being put off because the Judge got COVID.[90]

   [90]  T 175

8. Mr Culshaw made detailed oral and written submissions about the events during the confrontation night. I will not canvas those submissions, but I bear them in mind. He submitted that there was nothing that happened that night which supports the prosecution case.

9. Turing to the evidence of the meeting with the Elders in January 2006, Mr Culshaw made detailed written and oral submissions. He submitted that the accused is at a significant forensic disadvantage on this issue. He and the Elders are unable to recollect exactly what was said.

10. Mr Culshaw submitted that the accused’s evidence is to the effect that he was willing to say things that were not true in order to improve his chances of reinstatement, but not on the topic of sexual conduct. Even if he were found to have admitted to indecent touching of the complainant’s breasts, his state of mind and his imperfect recollection of what he said render reliance on that statement unfair. In any event there was an unequivocal denial of more serious offending.

11. Mr Culshaw concluded his address by submitting that no rational fact finder could find this offence proved beyond reasonable doubt. The problems with the complainant’s evidence are too substantial and the accused’s evidence was too consistent and too compelling.

    Consideration

12. The principal issue in this trial is whether the accused committed two or more of the unlawful sexual acts particularised in the Information. More specifically, whether the prosecution has proved that ingredient beyond reasonable doubt.

13. It is not disputed that between the dates particularised the accused was an adult, and the complainant was a child.

14. In his address on issues in the trail after the prosecutor’s opening, Mr Culshaw demurred on the ingredient that during the relevant period the accused and the complainant were in a relationship. In answer to my questioning him on that topic.[91] Mr Culshaw said he would have to see how the evidence played out. No one revisited that question.

    [91]  T 17

15. I find that there existed at all material times the relationship of a friendship. During some of the relevant period the accused and the complainant were fellow members of the Jehovah’s Witness Church, but that relationship did not exist towards the end of the charged period. The accused had been disfellowshipped. On one or two occasions the accused might have been regarded as being in loco parentis. He was looking after the complainant and her brother in their mother’s absence but that was on rare occasions.

16. The relationship of friendship, perhaps more particularly family friendship, existed throughout the charged period.

17. The principal witnesses concerned in the issue in the trial are the complainant and the accused. The evidence of other witnesses bears on their evidence, for and against each, but the focus of analysis is on the credibility and reliability of the complainant and the accused. Ultimately however, there can be no finding of guilt unless I am satisfied beyond reasonable doubt of the truthfulness and reliability of the complainant on material matters. A corollary of that principle is that there can be no finding of guilt unless I reject as reasonably possible the evidence of the accused on material matters and any evidence supporting his testimony (Douglass v R [2012] HCA 34).

18. If, in the face of two compelling bodies of opposing evidence, I am unable to determine where the truth lies, I will not be satisfied beyond reasonable doubt of the prosecution’s case (R v Calides (1983) 34 SASR 355, R v Lavery (2013) 116 SASR 242; [2013] SASCFC 46).

19. I will give myself directions of law as they become relevant to findings of fact.

20. I turn first to the prosecution case.

21. Despite legitimate criticisms of her evidence, I found the complainant’s account of material facts credible and reliable. At 34 she was giving evidence of events when she was aged between 13 and 16, although she had given a detailed statement of her allegations in 2016 when she was 27. There have been emotional difficulties in her life. Her parents separated when she was three. Her father committed suicide when she was 10. Her mother never remarried. She suffered mental ill health in 2010 when she was hospitalised. There have been religious tensions in her family. Her mother and brother remain members of the Jehovah’s Witness Church. She left it.

22. I bear those difficulties in mind when assessing her evidence, but they can help or hinder acceptance of her credit. I do not confuse or equate the complainant’s difficulties with the forensic disadvantage suffered by the accused by reason of the delay in the allegations coming to his attention. The delay I must bear in mind is between 13 and 19 years, albeit that he was given some indication of sexual allegations being made by the complainant in January 2005. His mother told him that much, but without detail. He was given no details to which he could constructively respond.

23. The strength on the complainant’s evidence on material matters lies in its detail, often the evidence of surrounding circumstances. The initial touching on the bottom (particular (a)) during the game of Spot the Lantern is preceded by the utterance of the accused that the view was nice from where he was crawling behind her.[92] The force of that detail is not damaged in my view by her giving inconsistent statements about whether she was wearing a jacket or a jumper. Nor it is inherently implausible despite its been brazen. The complainant acknowledged that the accused’s then girlfriend was on the camp, but the incident occurred in the dark when people were moving around separately.

    [92]  T 52 - 53

24. The complainant’s account of the rubbing together of genitals and the accused exposing his penis (particulars (c)-(d)) include details of the complainant wagging school while her mother was away. The episode was interrupted by a phone call which the complainant answered. The accused exposed himself while she was on the phone. The complainant said it was the first time she had seen a naked man. That account is not in my view damaged by the complainant’s inconsistent statements about whether it was her mother on the phone or the school. Whichever it was, the call was about her not being at school. It is true that the complainant asserted, wrongly as she conceded in cross-examination, that after that incident the accused was not allowed to come to the house. That did not happen until the confrontation night.

25. The complainant alleges that the first occasion on which she performed fellatio on the accused occurred just off the breezeway outside her brother’s bedroom. It occurred after she and the accused had been drinking alcohol in the brother’s bedroom. The defence submits that such an act is implausible being so brazen and, in peripheral respects, it is contradicted by other evidence it is attended by inconsistent statements. The submission that the act is brazen invites the observation that if the complainant were lying about the incident, she could have told a lie which did not have that weakness. While the complainant conceded that the act was brazen in the sense that her brother would be likely to have caught them if he had gone to the toilet or kitchen, it did occur around a corner in the breezeway so that if her brother simply came of the room, he would not see them.

26. It is said that the brother denies that the three of them had been drinking in his bedroom. Again, if the complainant were lying about that aspect of the incident, she could have told a lie which did not involve her brother. I am not posing the question “Why would she lie?”. To do so runs the risk of reversing onus of proof. The observation is simply that if it is a lie, it is one which has an attached risk of contradiction.

27. Further, it is not clear that RB does clearly deny that he has ever drunk alcohol in his bedroom with the complainant and the accused. He was cross examined on that topic as follows:[93]

    QWas that something that, to your recollection, Joel had ever done before you, to sort of sneak into your house through that window.

    ANot to my recollection, no.

    QAnd it’s not the case that he would, back before he was disfellowshipped, sneak in through that window and drink alcohol with you and your sister in your bedroom?

    ANot that I can recall, but – yeah, I can’t recall, sorry.

    [93]  T 215

28. Counsel did not follow up either answer with clarifying questions about the distinction between not recollecting and denying, questions which were wisely pursued with other witnesses. RB’s answer on this topic is to be distinguished from other clear denials he made. For example, he clearly denied that his sister had told him on the confrontation night that she had been having sex with the accused. [94]

    [94]  T 218.

29. There is no basis for suggesting RB was tailoring his evidence to suit that of his sister. Relations between them are fraught. He and his mother remain members of the church and he is married to Mr Van den Brink’s daughter. It has not been suggested that while RB has acknowledged frailties about his memory, he is being untruthful.

30. The accused acknowledged that he and RB would talk about women having big hair when they meant big breasts, but he denied that he had ever had a conversation like that in the complainant’s presence.[95]

    [95]   T218-219.

31. The complainant’s evidence about the visits to Maslins Beach is criticised as being implausible. The accused would be unlikely to risk such public attention. It is undoubtedly an allegation of brazen behaviour but there is about the complainant’s evidence telling detail. She said that on the first visit, the accused said that he had obtained for her bathing G-strings, but she would have to remove her pubic hair. She said she attempted to do that, but her attempt was imperfect.  On the beach she felt embarrassed at the result. She was also anxious about her age being noticed. On the way back, via the city, the accused suggested that she slide back her seat and lie down while they were on Glen Osmond Road. It was feared that her mother might be using that route home from a class in Adelaide.[96] That visit to Maslins Beach is uncharged, but it is evidence capable of showing a sexual interest in the complainant. To be admissible it would have to be proved beyond reasonable doubt. I bear in mind the impermissible uses of uncharged acts.  I am satisfied of the truth of the complainant’s evidence on this topic.

    [96]   T79.

32. On the second visit to Maslins, the complainant alleged that the accused kissed her (particular (b)).[97] In my view, the complainant’s credit is not substantially damaged by an inconsistency about the garments she wore on that occasion.[98]

    [97]   T179.

    [98]   T169.

33. The complainant said that on an occasion when she was at the accused’s house, the accused had digital sexual intercourse with her (particular (i)) and he took photographs of her partially or wholly undressed (particular(k)). On the same occasion, the complainant saw on an electronic address book her family’s contact details which were entered under her name. When she asked the accused how that came to be, he said that he had loved her since she was five.

34. In relation to that matter, the accused said that in preparation for travelling overseas in the late 90’s, he purchased the electronic organiser. Before he left, he was discussing with CB his need to record contact details of friends in South Australia. His memory is that the complainant and her brother were playing with the device and the complainant made the entry. The complainant denied that.[99] The accused denied ever making the remark about loving the complaint since she was five.[100]

    [99]   T127.

    [100] T418-419.

35. Notwithstanding the strength of the detail in the complainant’s evidence, I must bear in mind legitimate criticisms of her evidence and her credit. There are aspects of the evidence which, while they contain compelling detail, also attract legitimate criticisms. The defence case is that the combination of criticisms in such that the complainant cannot be accepted as honest and reliable. At the very least, those criticisms raise a reasonable doubt about the accused’s guilt.

36. I turn to the evidence of the confrontation night in January 2005. Mr Culshaw submits that the events of that night include the single most compelling evidence of the accused’s innocence. That is the evidence of the accused going to RB’s bedroom window when he found that the complainant was not at there. The accused’s action in so doing is completely consistent with his account of going to the complainant’s window to counsel her. It is inconsistent with him being an angry and jealous lover. If he were the latter he would have slipped away from her window and caught up with her at the next opportunity.

37. Further, the events of the night include evidence of the complainant that cannot be correct. She cannot have told either her brother or her mother that night that she had been having sex with the accused. However imperfect memories of events that night might be, no one would be likely to forget the complainant making such an allegation.

38. In my view, this proposition is unassailable. RB said that the angry exchange between the complainant and the accused outside the primary school looked like a lover’s squabble.  He is unlikely to have made so tentative an observation if the complainant had actually told him she was having sex with the accused. I find that he went to bed that night without hearing that allegation.

39. CB’s recollection of the events that night is poor, but I think she is also very unlikely to have forgotten that when her daughter took her aside to speak to her inside the house she told her about having sex with the accused. CB makes no mention of hearing the complainant say so in their private conversation.  I find that CB spoke to the accused after the complainant went to bed and said nothing to him to indicate that her daughter had made such a disclosure.

40. On the other hand, the accused’s evidence suggests that the complainant did make an allegation of him having sex with her shortly afterwards.

41. The prosecution did not elicit from the complainant any communication with her mother after the private conversation on the confrontation night. On the prosecution case, the complainant had made a complaint to her brother outside the school and to her mother in the private conversation.[101] I will not pause to consider whether the latter is admissible as an elaboration of the former. I find that that neither was made. It was never put to the complaint in cross-examination that she had made an allegation to her mother the next morning. There is no reason why it should have been put. It had not been led by the prosecution. However, the complainant did say that the accused’s mother visited her mother the next day.[102] The accused agrees that his mother visited the complainants’ mother the day after the confrontation night. It was through his mother that he heard that the complainant had alleged that he had had sex with her. He heard that a day or so after the confrontation night. That evidence was elicited from the accused in examination-in-chief.[103]

    [101] T90.

    [102] T91.

    [103] T467, 469, 477.

42. It is perfectly legitimate to put against the complainant’s credit that she is wrong about telling her brother or mother what she says was going on with the accused on the confrontation night, but it seems she did make a disclosure the following day. It is also noticeable that the complainant was somewhat qualified in her assertion about the disclosure to her brother. When challenged in cross-examination, she said ‘I think I told him…’.[104]

    [104] T144.

43. The complainant was understandably not challenged about her claim to have told her mother because she was speaking to her mother out of the accused’s earshot. She was thus not given the opportunity to reflect on her evidence in that respect. She was not given the opportunity to reflect on whether she told her mother that night or the next day.

44. I do not overlook what could be described as a somewhat detailed account, in her own examination-in-chief, of the conversation she said she had with her brother that night, but there is no doubt that something she said in his presence made him think that he was witnessing a lover’s squabble. I do not think that the accused’s wrongful account of complaint to her family on the confrontation night substantially damages her credit.

45. I turn to the submission about the significance of the accused going to RB’s window on the night. It was certainly fraught with risk, if, as the complainant says was the case, he had been having sex with her. However, he went to RB’s window not CB’s. It is the prosecution case that he had done that before, apparently without adverse consequences. He went with his own innocent account of why he was there that night. As at the time of his visit, he had no reason to think that the complainant had made any report of what she says was going on. The accused was obviously in an agitated state.  Whichever was the true position, either his lover or his troubled teenage friend had disappeared in the middle of the night. He might not have been able to appreciate the risk he was taking.

1. I am not persuaded that the accused’s actions were necessarily only those of an innocent man. I am quite conscious of where the burden of proof lies but my remarks are in light of defence counsel’s submission that the accused’s actions that night were the actions of an innocent man.

2. Mr Culshaw submitted that on the occasions where there was a third-party witness to an incident, that witness either contradicted the complainant or failed to corroborate.  I have already referred to RB not recollecting, rather than denying, that the accused had ever snuck into his bedroom at night and drunk alcohol with him and his sister.

3. A similar situation arose with the alleged water fight incident.  It was put that the complainant’s evidence on that topic was contradicted by her mother.  It was suggested that her mother never heard such a comment, and she would have been angry if she had. 

4. CB thought that there was a water a fight.  She was then asked if she remembered the accused pulling the complainant’s t-shirt tightly over her breasts and making a comment about being able to see her breasts.  CB replied ‘No, I don’t remember that’.  She was then asked ‘If you’d heard that, you would not have been happy’.  She replied ‘No, I would not have been happy’.[105]  No further clarifying questions were asked.  It is true that CB does not support the complainant’s account, but she does not, in terms, contradict her.

   [105] T284

5. In other respects, Mr Culshaw’s criticisms of CB’s evidence have some justification.  He observed that, while it may be accepted that CB was trying her best to remember, her memory was sometimes frail.

6. In particular, he submitted that CB’s evidence about the accused saying ‘Not below the waist’ should not be accepted.  In my view, it is unlikely that the accused said that to CB.  There was no independent evidence of anything the complainant told CB, and there was no evidence at all of anything being said to the accused which would prompt such a response.

7. I accept the defence submission that the likely explanation for CB’s mistake is that she heard that memorable expression from the Elders after they had their meeting with the accused in January 2006.  The accused agrees he said that to them.  They reported to the complainant and her mother the outcome of the meeting.  It would be unsurprising if they told CB of that memorable expression.

8. While I think CB is mistaken about hearing that utterance from the accused on the confrontation night, I do not find that she is mistaken about another matter which assumed some importance.  She said that she saw the complainant and the accused together in the campervan with their hands touching. 

9. The complainant was not asked questions on that topic in examination-in-chief.  The topic arose in cross-examination.  The complainant agreed that in a statement she made in 2019, she spoke of her mother coming into the campervan and asking what was going on.  She said the accused had his hand down the front of his pants and he quickly removed it.[106]

   [106] T164-165

10. CB said that she had come into the campervan and seen the two of them on a mattress with hands touching. CB said that she got very annoyed.  She said that as the trip progressed, she became increasingly alienated from the accused and her children, so much so that she asked the accused to leave.[107] When asked specifically in cross-examination whether she saw the accused with his hand down her daughter’s pants in the campervan, she said she did not.

    [107] T263

11. In my view, the slightly different accounts by the complainant and her mother about what happened in the campervan do not damage the credit of either. The alleged incident is an uncharged act which occurred out of the jurisdiction, but in my view it is admissible as evidence of a sexual attraction the accused had towards the complainant. To be used for such a purpose, it must be proved beyond reasonable doubt. The accused denied the allegation. I bear in mind that the prosecution evidence on this topic must comply with s 34P. I find that it does.

12. I am satisfied that that incident occurred as the complainant and her mother say.

13. Mr Culshaw submitted that there was an aspect of the complainant’s evidence which should cause disquiet.  It is the evidence of the complainant falsely telling her mother and the accused’s former sister-in-law that the accused had burnt her genitals with hot coals.  Effectively, she said that she did so to seek attention.

14. The defence raises a legitimate criticism of the complainant’s evidence in that regard.  That topic is among several which were raised in the final stages of the complainant’s cross-examination.  She became increasingly upset and angry.  So much was apparent in court, but it is also apparent in the transcript.[108]  Three topics which arose at that stage of the trial were the subject of an application for me to recuse myself.  I will deal with that application separately, but it is convenient to set out the evidence on those topics in the discussion about criticisms of the complainant’s credit.

    [108] T175-189

15. The defence submits that the complainant has only very recently alleged two incidents of the accused committing cunnilingus upon her.  She had not made that allegation at all in her first statement in 2016 and had only mentioned one of the two in one of her statements in 2019.   Only in her most recent statement, given a few days before the trial began, did she mention the second one.

16. The complainant was cross-examined about details of the motorbike incident, the allegation of cunnilingus that she mentioned in her 2019 statement.  She was reminded that her statement concluded on that topic with her saying that that was the only time that the accused had performed that sort of act upon her.  She became upset and explained how memories became prompted.  She was asked whether her memory had improved since her statement in 2019.  She became further upset.  I observed that it was not unknown for people to remember things when prompted.[109]

    [109] T174

17. Mr Culshaw repeated his question, and the complainant gave an extended answer in an upset manner.  She said that she would never forget the conversation with the accused about her vagina.  She said that that conversation occurred on the same night as the recently remembered occasion of cunnilingus. 

18. The criticism of her evidence on this topic is that while she claims that the conversation is unforgettable, she had in fact forgotten it until just before the trial.  While that criticism is reasonably made, the conversation is, in my view, credible, and unlikely to be manufactured.  The complainant’s articulated shame and embarrassment about that topic appeared unfeigned. 

19. Counsel pressed the complainant to explain how she failed to remember that incident.  She gave a long and somewhat emotional answer in which she said that one of the ‘probable’ explanations was the thought of the trial being put off for a year because ‘someone’, whom she later identified as the proposed trial judge, got COVID.  Counsel pursued that explanation, exposing the fact that the complainant had signed her most recent statement some days before it became known that the judge had COVID.

20. Before that exposure, I commented that the fact that the trial judge did contract COVID was how I came to be hearing the trial.[110]  That was the source of counsels’ submission in addresses, that I had, myself, been fooled by the complainant’s flawed evidence.

    [110] T175

21. The complainant then suggested that another ‘probable’ trigger was conversations she had had with her partner.  She became upset upon being pressed about conversations she had had with her partner.  She apologised for becoming upset.[111] 

    [111] T176

22. It was then put to the complainant that she had never been to a doctor about injuries she sustained as a result of sexual activity with the accused.  She said that she had been to a doctor about two weeks earlier to see if her vagina was normal.[112]  Later the defence applied for a subpoena to the doctor for a record of any such attendance.  I granted the application, which was narrowed in ambit.

    [112] T177

23. The doctor was not called, but it is agreed fact no.21 of P13, that the doctors’ records do not disclose any consultation or report since 2003 which relate or refer to any injury or asserted injury to the complainant’s genitals.

24. The complainant was asked whether she had ever told her mother, and the accused’s former sister-in-law, that the accused burnt her genitals with hot coals.  She admitted that she had done that.  Effectively she said that she had done so to get attention.  During the course of her answers on this topic, the complainant spoke emotionally of embarrassment about the state of her genitals and concerns she had as a child, feeling she was going to get into trouble.[113]

    [113] T178

25. The complainant was then questioned about her mental health.  She initially queried the relevance of the topic.  I had an exchange with defence counsel in which I indicated that I would probably allow the question.  The complainant interrupted to say that she was willing to answer.  She proceeded to do so.

26. At one stage, counsel asked whether, during the course of her admission to a mental hospital in 2011, she had a particular hallucination.  I disallowed that question on the basis that I would not be assisted by a particular manifestation of mental ill health.  It was not ever suggested to the complainant that she had hallucinated the sexual acts she said the accused had performed with her.[114]

    [114] T179-182

27. Counsel then asked the complainant whether she had ever used cannabis. She said that she had, but I asked counsel to explain, in her absence, the relevance of that topic.  Having heard the explanation, I permitted further questioning on that topic, but said that I would tell the complainant she had a right against self-incrimination.  When I explained that right to the complainant she exercised it.[115]

    [115] T183-186

28. Counsel then questioned the complainant about whether she had made any application for victims of crime compensation.  She said she had not.  Counsel pursued the topic.  I remarked that people do have rights.  The complainant protested that she did not want any money.  Counsel did not pursue the matter further and ultimately disavowed any financial motive for her to make false allegations.[116]

    [116] T186-187

29. Finally, counsel sought, and was given leave pursuant to s.34L of the Evidence Act, to ask the complainant questions about her telling hospital staff during the period of her committal in 2010, that she had been sexually abused.  The complainant said that she could not remember saying what was being put to her.  She said that she declined to answer because she could not remember.  Agreed Fact 18a of P13 is that the hospital records are to the effect ‘sexually abused by old family friend from 5 to 7 years of age, then by mother’s boyfriend until 12 years’. 

30. The complainant was not asked about the truth of either contention.  The falsity of the second contention is said by the defence to lie in the fact that there is no evidence of anything other than a platonic friendship between the complainant’s mother and the accused.  There is no allegation of the accused sexually abusing the complainant until she was 12 or 13. 

31. Counsel submits that, taken together, the evidence of these topics is such that the complainant cannot be believed on her word.

32. I do not draw that conclusion.  I do accept that, particularly towards the end of her cross-examination, the complainant became at times angry and somewhat careless in her manner.  Carelessly, in my view, she postulated that a ‘probable’ cause of her recently remembering the second incident of cunnilingus was the judge getting COVID.  I think that being pressed for an explanation for a triggered memory, she became careless rather than dishonest in attempting an explanation. 

33. The ‘burnt genitals’ allegation is a matter which, as counsel submitted, causes disquiet.  However, the terms of that allegation are so extreme that they can really only be the result of crude attention seeking.  The complainant promptly admitted the falsity of the allegation and was frank about its purpose.  The extreme nature of that allegation is to be distinguished from the nuanced account of a long course of gradually escalating sexual conduct.  It is possible to accept a part, and reject a part, of a witness’s evidence.  That principle is no invitation to excise evidence which is discreditable without having regard to the damage that that excision may do to what remains. That is particularly so when the witness concerned effectively bears the burden of proof.  I do have regard to the effect of that discreditable evidence, but I am not persuaded that it materially damages the complainant’s overall credit. 

34. I do not think that the complainant’s utterances during a period of mental ill health materially damage her credit.

35. Generally, I found the complainant’s detailed account of sexual acts by the accused credible and reliable.

36. I turn to the accused’s evidence.  I accept the defence submission that, by comparison with the complainant, the accused was more considered in his answers.  Nevertheless, there is at the heart of his evidence, what I regard as an improbability.  The accused is critical of several aspects of the complainant’s personality as a teenager.  He said ‘When she was 14, it started to come out that she was sexually involved with boys at school’.[117] ‘A certain reputation was being developed’.[118]  She told him she was drawn to male company.[119]  She told him she had sex with a boy at school and ‘…others wanted the same treatment’.[120]  She told him her mother did not believe her when she complained of bullying and ultimately rape.[121]  In fact, the accused himself did not believe her, but he said that he probably gave her the impression he did.[122]  She had a habit of exaggerating stories to people in the congregation.[123]  She exposed her breasts once to him in the loungeroom and she lunged at him in the surf while exposing her breasts.  At the age of 14, she was becoming flirtatious with males in general.[124]  She was flirtatious with him when she was 14 or 15.[125]  He had discussions with her in which he believed she fabricated stories to seek attention.  Other congregation members would credibly contradict things she said when she was 14 or 15.[126]

    [117] T428

    [118] T429

    [119] T430

    [120] T431

    [121] T431

    [122] T564

    [123] T564

    [124] T547

    [125] T569

    [126] T603

37. Against that background, the accused overcame his resistance and went to her bedroom window at night because she was upset.[127]  On his own case he had been disfellowshipped in August 2004 and had had one application for reinstatement rejected.  Nevertheless, he went to the bedroom window of a volatile teenager at night on two occasions before the confrontation night.  He explains he was going secretly to her at night because he was not permitted to have contact with congregation members such as her mother. 

    [127] T571

38. The contradiction in that reasoning is striking.  Engaging openly with the mother in an attempt to assist the daughter runs nothing like the risk of religious stricture as going secretly to the girl’s bedroom at night.

39. His going secretly to the complainant’s bedroom at night fits completely with the prosecution case.  So too does his account of discussing sexual matters with the complainant.  She says it was a feature of their relationship that he would ask her about other sexual experiences she had had. 

40. On his own case there was some opportunity to offend against the complainant in the way that she said he did. The accused was so trusted by the complainant’s mother that she would let him look after the teenagers when she was engaged in a school camp or when she went to Perth. The accused picked the complainant up from school when he was asked to do so. He joined the family on the Queensland holiday. In fact, CB kept the accused’s attendance on that holiday secret from the family friend who lent them the campervan. The accused would come to the complainant’s house to have drinks with CB. It may be that when he was involved in relationships with the two women he has spoken about, he spent less time with the complainant’s family, but he never lost contact. On his own case he went to the complainant’s bedroom window at night three times between August 2004 and January 2005.

41. I turn to the evidence relating to the meeting with the Elders in January 2006. I bear in mind the significant forensic disadvantage suffered by the accused as a result on the lapse in time between 2006 and 2019 when the accused was charged. The memory of the Elders who gave evidence is imperfect. So is that of the accused. The difficulties for the Elders create difficulties for the accused. Where doubts arise from minutes of the meeting or from any uncertainty in the recollection of the Elders, the accused is entitled to the benefit of those doubts.

42. That said, there are aspects of the meeting which are relatively clear.

43. The accused knew that 12 months earlier, a day or so after the confrontation night, the complainant was alleging he had sex with her, but he knew no further details.

44. The accused may not have known that the Woodside Elders knew something of the complainant’s allegations during 2005. They wrote to the Sydney branch of the church on 8 November 2005[128], noting that in a meeting earlier in the year the accused had made no mention of a relationship with the complainant. Nevertheless, the accused would no doubt have been very conscious that disclosing sexual contact with the teenaged complainant, possibly even contact during fellowship, would be regarded more seriously by the Elders than the relationship with Deanna.

    [128]  MFID 8, T 336 - 337

45. The accused made a conscious decision at the earlier hearing not to disclose any contact with the complainant because he thought it would go against his chances of reinstatement. [129]

    [129]  T519

46. The accused knew that the Elders would place great importance on repentance. In fact, it is part of his case, and it is explicitly part of his evidence, that he was willing to have leave the Elders with the impression that his contact with the complainant was more serious than it really was. [130]

    [130]  T472

47. In my view, there are three passages in the notes which are unlikely to be mistranscribed. The passages are to the effect that the accused took the complainant for a drive to Goolwa, he went into the complainant’s room when he went to her window, and he took her to his place.  The accused does not recall saying the first but does deny taking the complainant to Goolwa.[131]  He denies saying the other two matters which are noted.  He admits telling the Elders that he touched the complainant’s breasts, although he was adamant that there was “nothing below the waist”.  He denied any sexual relationship.

    [131]  T648

48. I reject the accused’s evidence that he was deliberately leaving the Elders with a false impression that he had indecently touched the complainant’s breasts so as to increase his chances of reinstatement.  He cannot have realistically ever imagined that the Elders would reinstate him if he admitted going to the complainant’s bedroom at night while he was disfellowshipped and there indecently assaulting her, but refuse to reinstate him if he stuck to his story of going to her bedroom merely to support her.  I find that he adopted a “confess and avoid” posture, that is, confess a minor part of the truth while denying the major part.  He was able to soften the minor part by shifting some of the blame to the complainant.  She bared her breasts to him.

49. I do not hold against the accused’s credit that he did not tell the Elders of the two breast baring incidents he mentioned in court.  In fact, I find they may have happened as the accused said they did. The complainant does not deny doing them.  She says she cannot remember.  She says that all along there was a sexual relationship going on between the two of them.[132]

    [132]  T176 to 177

1. It is true, as the defence submits, that the touching of the breasts is not a charged act. However, the evidence is capable of demonstrating a sexual interest the accused had for the complainant. I find that this evidence complies with s 34P of the Evidence Act.

2. I find that the accused truthfully admitted to the Elders that he indecently touched the complainant’s breasts, and he truthfully admitted opportunities to be alone with her, which he now denies, that is, going with her on a drive to Goolwa, going into her bedroom and having her at his house.

3. I reject the accused’s denials of the sexual allegations as being reasonably possible. 

4. I also reject the suggestion that the complainant has a motive to lie about the accused.  The financial motive put to the complainant is disavowed by the defence.  For reasons I have already discussed, I reject the suggested motive of attention seeking.  Of course there is no obligation on the accused to raise, much less prove, a motive for the complainant to lie.  Lies can be told for unknown reasons.  The burden of proof always rests on the prosecution.  The rejection of a suggested motive to lie does not assist the prosecution case.  It is neutral.

5. The rejection of the accused’s evidence as reasonably possible does not assist the prosecution case.  The accused is to be acquitted unless the prosecution proves its case beyond reasonable doubt (Liberato v R (1985) 159 CLR 507, [1985] HCA 66).

6. I am so satisfied.  Despite the flaws in the complainant’s evidence, I find that in material respects, her evidence was credible and reliable.  I am satisfied beyond reasonable doubt that the prosecution has proved all of the particularised unlawful sexual acts.  I am also satisfied of the other ingredients of the charge.

   Application for Recusal

7. After the conclusion of the evidence of the complainant, the accused made an application for me to recuse myself.  The application was based upon three interventions made by me during the cross-examination of the complainant.  They occurred towards the end of the examination when the complainant was becoming increasingly upset.

8. The first relates to my comment that it is not unknown that people remember things if a memory is prompted.  Defence counsel had just asked the complainant whether her memory had improved since 2019 when she made her witness statement.  In my view, such a question is apt to be seen by witnesses as somewhat facetious and is undesirable when it is quite legitimate to leave that topic for comment in addresses.  I did not disallow the question and counsel pressed it further.[133]

   [133]  T174

9. The second relates to a question counsel asked the complainant about an hallucination she had had during a period of mental illness.  I disallowed the question on the basis that the question was irrelevant in the sense that it had not been suggested, and has never been suggested, that the complainant was hallucinating at any time, other than the period in which she had had a short period of mental ill health.  By that stage of her cross-examination the complainant was becoming particularly upset.  I regarded the question is as an inappropriate irritant.[134]

   [134]  T182

10. The third relates to cross-examination questions designed to explore a financial motive for the complainant to make false allegations.  She had already denied having made, or intending to make, application for compensation through the church or through the Victims of Crime Compensation Organisation.  Counsel pressed the topic by asking how she came by Victims of Crime information.  In my view, the question was irrelevant and unduly oppressive.[135]

    [135]  T186

11. The principles to be considered on an application for recusal have recently been discussed in QYFH v The Minister for Immigration and earlier by King CJ in Hinton v Mill [1991] 57 SASR 97 at 99-100. A judicial officer should decline to sit in a case where, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the officer might not bring an impartial and unprejudiced mind to the decision in the case. The test is not a subjective one. It is objective. The judicial officer should not, by words or actions in a trial, give rise to a reasonable suspicion that he or she might have a closed mind to the issues in the trial.

12. I concluded that my interventions did not give rise to a reasonable suspicion that I would be unable to bring an impartial and unprejudiced mind to the decision in the case.  I so ruled.[136]

    [136]  T238.

    Verdict

13. Maintaining an Unlawful Sexual Relationship with a Child – Guilty.