R v N, CM - [2021] SADC 115

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v N, CM
Criminal Trial by Judge Alone
[2021] SADC 115
Judgment of his Honour Judge O'Sullivan
21 October 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
Criminal trial by judge alone.
The accused was charged with two counts of aggravated indecent assault against his great-niece. The alleged aggravating feature is that the complainant was under 14 years at the time of the alleged offending.
It is alleged that on 30 December 2014, the accused took the complainant and her two brothers for a drive to collect cans and bottles in the Yorke Peninsula area.
While the complainant’s brothers were collecting cans and bottles in the nearby scrub, it is alleged that the accused exposed his penis to the complainant, forced the complainant to touch his penis, pulled down the complainant’s pants and rubbed her vagina with his hand.
Verdict: The accused is guilty of both counts.
Juries Act 1927 (SA) 7(1)(a); Evidence Act 1929 (SA) 13BA, 34, referred to.
R v Sparks [2017] SASCFC 171 [43]-[51]; R v Norris [2020] SADC 11; R v De Sa [2021] SASCFC 22; R v Nieterink [1999] 76 SASR 56; R v El Rifai [2012] SASCFC 98, considered.

R v N, CM
[2021] SADC 115

Introduction

The accused is charged with two counts of aggravated indecent assault alleged to have been committed between 1 December 2014 and 31 January 2015.
The complainant is the accused’s great-niece. The offences are aggravated on the basis that the complainant was under the age of 14 years at the time of the alleged offending
The offences are alleged to have been committed by the accused at Warooka on a day when following a fall, the complainant’s great-grandmother, MN, was taken to hospital by ambulance.
The prosecution led oral evidence from the complainant and her brother KK, as well as tendering agreed facts.
The accused did not call or give evidence.
The accused elected for trial by judge alone.[1] The application was granted and the trial proceeded before me without a jury.
[1] Juries Act 1927 (SA) s7(1)(a); application filed 6 October 2020
Prosecution applications
Prior to or at the trial, the prosecution applied for a number of orders:
i) First, by application filed 10 April 2019 that pursuant to section 13BA of the Evidence Act 1929 (SA) an audio-visual record of an interview between the complainant and Detective Brevet Sergeant Lauren Franz conducted on 20 February 2018 be admitted into evidence.[2] The complainant was then 11 years old.[3]
The defence did not oppose that order. I was satisfied the requirements for the admission of the audio-visual record of interview pursuant to section 13 BA(3) had been met. [4] Accordingly, I received the audio-visual record of the interview into evidence.[5]
ii) Second, pursuant to section 13 of the Evidence Act 1929 (SA) that the complainant give oral evidence outside the trial court with that evidence being transmitted to the trial court by means of closed-circuit television and that the court be closed whilst the complainant gave her evidence. At the time of giving evidence the complainant was 14 years old.
The defence did not oppose either order and I granted the applications.
iii) Third, pursuant to section 13BA (5) for permission to ask questions of the complainant in examination-in-chief. I directed the prosecution to provide the questions it sought permission to ask to both me and the defence. After consideration and hearing argument, I gave permission for a limited number of questions to be asked of the complainant in examination in chief on the basis that the questions were directed at clarifying ambiguities and/or were otherwise in the interests of justice.
iv) Fourth, a notice of intention by the Director to adduce discreditable conduct evidence pursuant to section 34P filed 10 April 2019 was not pressed insofar as it concerned propensity evidence. I deal with this application later in these reasons.
v) Fifth, pursuant to section 13C(1) of the Evidence Act 1929 (SA) that the complainant’s evidence be recorded. There was no objection and I granted that application.
[2]     It is common ground that the interview was conducted on 20 February 2018 however DBS Franz stated the date in the interview as 20 February 2017.
[3]     DOB 28 August 2006
[4]     R v Sparks [2017] SASCFC 171 [43]-[51]
[5]     Exhibit P2
Defence applications
The defence applied for a number of orders:
i) First, the defence applied for permission to ask questions of the complainant in cross-examination. I directed the defence to provide the topics and questions it sought permission to ask to both me and the prosecution.[6] After consideration and hearing argument, I gave permission for the defence to ask questions of the complainant in cross-examination on the basis that the questions were otherwise in the interests of justice.
ii) Second, by rule 49 application dated 5 July 2021, the accused requested:
a) a court companion; and
b) that he be permitted to sit behind his Counsel during the trial subject to any section 13 or 13A orders for prosecution witnesses.
[6] Evidence Act 1929 s13BA(5)
The accused suffers from an intellectual impairment of mild severity. On 14 February 2020, a judge of this Court determined that the accused was fit to stand trial.[7]
[7] R v N, CM [2020] SADC 11
The defence nominated the accused’s solicitor as his court companion. The prosecution did not oppose these orders and I granted both applications. The accused sat behind his Counsel during the trial accompanied by his solicitor save when the complainant was giving evidence by CCTV at which time the accused and his solicitor sat in the jury box.
Charges
The particulars of the charges against the accused are as follows:
First Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
CMN between the first day of December 2014 and the 31^st day of January 2015 at Warooka or another place, indecently assaulted TJK by causing TJK to touch his penis.
It is further alleged that TJK was under the age of 14 years at the time of the offence.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
CMN between 1 December 2014 and 31^st day of January 2015 at Warooka or another place, indecently assaulted TJK by touching her vagina.
It is further alleged that TJK was under the age of 14 years that the time of the offence.
The elements of the offences
In order to prove the offence of aggravated indecent assault, the prosecution must prove the following elements beyond reasonable doubt:
1.The first element is that the accused assaulted the complainant. To prove this first element, the prosecution must prove four sub-elements;
1.1The accused applied force to the complainant. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause injury;
1.2The accused intended to apply force to the complainant. Purely unintended or accidental touching would not be sufficient;
1.3The assault was unlawful. The prosecution must prove that the assault occurred without a lawful defence; and
1.4The accused knew the complainant did not consent or is reckless about the absence of consent. Since the complainant was eight years old at the time of the offending, the question of her consent to any of the alleged acts is not a relevant issue.
2.The second element is that the assault was accompanied by or occurred in circumstances of indecency which must involve a sexual connotation. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards.
3.The third element is the aggravating feature that complainant was under the age of 14 years at the time of offending.
General directions
It is not necessary for a Court having conduct of a trial by judge alone to set out the standard and obvious directions of which a judge is bound to be aware. However, I remind myself of the following matters.
Proof
The prosecution has the burden of proving the offences. There is no onus on the accused to prove anything and there is a presumption of innocence in his favour. The prosecution must prove each element of the offence beyond a reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or probably guilty.
If the prosecution has not excluded any reasonable explanation consistent with the innocence of the accused beyond a reasonable doubt, or if I am unsure of where the truth lies, then the accused is not guilty.
In these reasons, if I use the words “proved”, “established”, or “satisfied”, in each case I mean to an extent which excludes a reasonable doubt.
I must assess each witness as to the truthfulness and their reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of a witness’ evidence.
In making findings of fact, I must rely on the evidence given by the witnesses and contained in the exhibits. I must apply my common sense.
I must bring an open and unprejudiced mind in this case. I must make my decisions without sympathy or prejudice.
The accused is charged with two separate counts. Each of these counts must be considered separately.
Complainant’s recorded evidence
The complainant participated in an interview with the police[8] which was recorded as an audio-visual recording and tendered. I remind myself that it is the answers she gave that constitutes the evidence and the assertions of the police that she has not adopted are hearsay. Her evidence is what I see and hear on the audio-visual recording.
[8] Exhibit P2
I remind myself not to draw any inference adverse to the accused by reason of the admission of evidence in this form, nor to allow it to influence the weight to be given to the evidence.
Special arrangements
The complainant gave evidence by CCTV from the vulnerable witness suite and while the court was closed. It is not necessary for a judge sitting alone to direct himself or herself about such arrangements although I remind myself that I must not draw from that fact any inference adverse to the accused nor should I allow the special arrangements to influence the weight to be given to the complainant’s evidence.
Accused’s record of interview
The accused participated in an interview on 20 February 2018 with the police which the prosecution tendered.[9] I remind myself that it is the answers he gave constitutes the evidence and that the assertions of the police that he has not adopted are hearsay. The prosecution produced a transcript of the interview between the accused and the police. I did not admit that transcript into evidence but it was marked for identification.[10]
Accused did not give evidence
[9] Exhibit P5
[10] MFI P6
The accused did not give evidence. That was his right. I cannot and do not draw any inference which is adverse to him or the case he presents for declining to give evidence.
Forensic disadvantage
The defendant submitted he was subject to forensic disadvantage. Mr Jolly of counsel for the accused submitted the accused had suffered a forensic disadvantage on two bases.[11]
[11] T122.2-38
First, the accused suffers from a cognitive impairment which existed at the time of him being interviewed by police and which persists. Mr Jolly referred to the reasons of his Honour Judge Stretton DCJ in ruling[12] on the accused's capacity to stand trial and his Honour’s summary of the actual impairment from which the accused suffers.[13] He submits that it would warrant a direction to myself pursuant to section 34CB of the Evidence Act 1929.
[12] R v N, CM [2020] SADC 11
[13] Ibid at [30]-[33]
Section 34CB(2) and (3) provide:
(2) If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3) An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
The section is directed at the period of time that has elapsed between the alleged offending and the trial. The accused’s cognitive impairment per se does not come within section 34CB(2) and there is no evidence tendered before me of that cognitive impairment.
Nonetheless, I am aware of the consideration of the accused's cognitive impairment by his Honour Judge Stretton in his ruling. In his summary,[14] his Honour highlighted the disadvantage the accused will have if he elects to give evidence and is cross-examined. The accused elected not to give evidence but the same considerations apply to his interview with the police and it is a matter I take into account when considering the accused’s record of interview.[15]
[14] Ibid
[15] Exhibit P5
Second, Mr Jolly submitted that the time which had elapsed between the alleged offending in December 2014 and the interviews with the complainant and the accused both of which occurred on 20 February 2018 and the date of trial.
Mr Jolly did not identify what the forensic disadvantage was, other than the mere passage of time.
In R v De Sa,[16] the Court of Criminal Appeal considered the applicability of section 34CB in a trial by judge alone. After considering the terms of section 34CB(2) and (3) the court said:[17]
Subsections (2) and (3) impose an obligation on a trial judge to give directions to a jury if the precondition of “significant forensic disadvantage” is met. In general, the purpose of directions to a jury requiring consideration of specific matters is that judges are aware from their experience, but juries may not be aware, of the need to give consideration to those specific matters.
Subsections (2) and (3) are prescriptive of what must be said (explain the nature of forensic disadvantage specific to the circumstances of the particular case and direct that the jury must take it into account when scrutinising the evidence specific to the circumstances of the particular case), and must not be said (dangerous or unsafe to convict), to the jury. Section 34BC does not address a trial by a Magistrate or Judge alone.
In R v T, WA Kourakis CJ (with whom Vanstone J and Anderson J relevantly agreed) said:
… having regard to both its text and context I would hold that s 34CB of the Evidence Act does not require a judge to include within his or her reasons a direction of the kind that that section prescribes.
In JGS v The Queen, Lovell J (with whom Peek and Bampton JJ agreed) said:
The terms of the section suggest that there is no requirement on a trial judge, hearing a matter without a jury, to consider the question of whether an accused has suffered a “significant forensic disadvantage” and therefore enlivening the obligation to direct him or herself in accordance with ss 34CB(2)(a) and (b). Presumably Parliament considers that judicial officers are aware of, and will give the appropriate weight to, the difficulties faced by an accused when confronted with the forensic disadvantages envisaged by s 34CB.
The Judge was not required to give herself a significant forensic advantage warning under section 34CB and the appellant’s primary contention fails.
[16] [2021] SASCFC 22
[17] Ibid [108]-[112]
The court continued in De Sa that the existence of forensic disadvantage is a matter that should normally be taken into account by a judge sitting alone in considering whether the charge has been proved beyond reasonable doubt.
I am aware of the impacts of the passage of time on the cogency of evidence and the reliability of witness’ evidence.
I am aware that the evidence called and other evidence tendered by the prosecution involved events that are alleged to have occurred when the complainant was eight-years old, her brother KK about nine-and-a-half years old, her brother BK about ten-and-a-half years old and the complainant’s friend, SK nearly nine-years old. I bear the passage of time in mind as well as the age of the children in considering all of the evidence.
Discreditable conduct
The Director filed a notice pursuant to section 34P of the Evidence Act 1929 on 10 April 2019.
The discreditable conduct itself is not identified in the notice but the evidence sought to be adduced is uncharged acts of a sexual nature against or towards the complainant.
The use of the evidence pursuant to the notice is for the purposes of section 34(2)(b) of the Evidence Act in respect of each count to prove a sexual attraction towards a complainant, making it more likely that the charged acts occurred as alleged, were prurient or indecent and that the accused had the relevant intention or state of mind.
In his opening address, the prosecutor informed the court that the application was not pursued for propensity purposes and in particular, the prosecution did not ask the court to find that the discreditable conduct shows the accused had a sexual interest in the complainant.[18] Instead the prosecution submitted that it would be used as circumstantial evidence.
[18] T8.13-22
In his closing address, the prosecutor identified the evidence of discreditable conduct on which the prosecution relies as:[19]
1. Some four days or so after the day of the alleged offending, the complainant was at the accused’s house with her brother BK and was asked by the accused if she would like to see Barbie dolls which were in a room at the accused’s house. The complainant said “no” but the accused allegedly pushed the complainant into the room. There were no Barbie dolls in that room;
2. The complainant was asked by the accused immediately after the event alleged in paragraph one above if she wanted to go to the toilet and used the expression “pretty girl” when referring to her; and
3.The accused said to the complainant whilst she was at the accused’s house on another occasion which was after the day of the alleged offending and after the day referred to in paragraph two above, “Come here you pretty girl”, whilst the accused had hold of her hand.[20]
[19] T104.25-35
[20] T107.25-35
The prosecution submitted the evidence of discreditable conduct could be used for a permissible, non-propensity purpose pursuant to section 34P(2)(a) and that its probative value substantially outweighed any prejudicial effect. It submitted, correctly with respect, that no notice was required for section 34P(2)(a) purposes.
The prosecution relies on the evidence of discreditable conduct as part of the background for a number of purposes:[21]
i)to show the full picture of the alleged offending;
ii)to show the entirety of the interactions between the accused and the complainant;
iii)to show the alleged offending was not a “one off” advance by the accused but there were other attempts to get her alone with him.[22]
[21] Evidence Act 1929 (SA) s34P
[22] T108.3-110.37
Defence counsel accepted that the evidence upon which the prosecution rely as evidence of discreditable conduct was admissible as part of the factual matrix and which would allow both prosecution and defence to explore the reliability and consistency of witnesses.[23]
[23] T111.13-112.9

In R vNieterink, [24] Doyle CJ considered evidence of uncharged acts had several potential uses. One of those uses is to allow the trier of fact to understand that the charged offences were not an isolated occurrence. It may also evidence a sexual attraction towards the complainant as well as the accused was prepared to act in what was allegedly brazen offending such that the accused was emboldened in relation to the complainant.
[24] [1999] 76 SASR 56 [42]-[44]
Although defence counsel in this matter referred to the evidence of discreditable conduct as forming part of the “factual matrix” the courts have made it clear that that expression is somewhat unhelpful and it is clear that its admissibility is not governed by it being “background evidence”. It must owe its admissibility to some specific, other purpose. [25]
[25] Ibid [74] referring to Callinan J in Gipp v The Queen [1998] 194 CLR 106, 168-169 [182]
In my view, using this evidence as circumstantial evidence is akin to a propensity or disposition use. I do not consider the evidence is circumstantial evidence and I consider the use of this evidence, if established, is only evidence as to part of the background to the offending and which I only use for the purposes identified by the defence, that is, to evaluate the credibility and reliability of witnesses. To that extent, as I explain later in these reasons, I do not use this evidence in any way that assists the prosecution case.
I consider the use of the evidence for that limited purpose is a permissible use, that when used in that way the value of that evidence substantially outweighs any prejudicial effect[26] it may have on the accused. I am satisfied that its use can be kept separate and distinct from any other use.[27]
[26] Evidence Act 1929 (SA) s34P(2)(a)
[27] Evidence Act 1929 (SA) s34P(3)
In particular, I keep firmly in my mind that the evidence of discreditable conduct is not evidence of a propensity to indecently assault young children, whether female or otherwise, is not evidence of sexual attraction towards the complainant and it is not to be used to reason that the accused is a bad person and for that reason more likely to be guilty of any count.
Prosecution evidence
Complainant’s record of interview and evidence
The complainant was interviewed by Detective Brevet Sergeant Franz on 20 February 2018. At that time she was 11 years old.
The complainant also gave sworn oral evidence. Prior to doing so I satisfied myself that the complainant was capable of giving sworn evidence. Neither party submitted the complainant was not capable of giving sworn evidence.
It is an agreed fact[28] that at the time of the alleged offending the complainant was living permanently in Victoria with her paternal grandmother, GR and her two brothers- KK and BK.
[28] Exhibit P9 [7]
In the period December 2014 to January 2015; the complainant, together with GR, KK and BK, was staying at MN’s house in Yorketown, South Australia. The four of them had travelled to Yorketown at Christmas to be with MN.
The accused is the complainant’s great-uncle and GR's brother. He lived near MN.
The complainant described the events which she said occurred “three Christmases ago”. She identified the day of the alleged offending as being the day on which MN had a fall and was taken to hospital. She did not see the fall but was told about it after the event.
On the day of the offending, the accused came over to the house unexpectedly. He asked if the complainant and her two brothers would like to come with him and pick up some cans, to which they agreed. The three children got into the accused’s white Ford ute. The complainant said she sat in the front passenger seat and the two boys in the rear passenger seat.
She was wearing pink shorts and a top which had black spots and little pink and blue flowers on it as well as a picture of a comb. The accused was wearing blue pants or tracksuit pants as well as a green shirt and no jumper.
They drove on to the Warooka Road and drove past where the accused lived. The accused stopped the utility on a dirt road just off the Warooka Road, near Warooka. The complainant described the location as having “heaps of bushes and a fence which was near a paddock but with trees blocking the fence”. She said that the accused grabbed a plastic bag and told her two brothers to go off and look for cans. He told her to stay there.
He had opened the rear left hand passenger door of the ute and was standing there. He told her to come to where he was. She went to him thinking he was going make her clean out the car. He grabbed her under the armpits, put her in the back seat of the ute and pushed her down onto the back seat so she was lying down. She tried to sit up but he kept pushing her back down. He remained standing outside the rear passenger door of the ute. Her feet were just out of the door.
She stopped trying to sit up at which time he told her to pull her pants down. She refused.
She said that he pulled his pants down and grabbed her hand tightly so that she could not move it. She said she was trying to move her hand to get out because she didn’t like it when boys touched her and then only if she knew them. She tried to move but he wouldn’t let go. She described that he put her hand on his “rude spot” ie: his penis. She described his penis as big, long and hairy. She knows another word for a boy’s rude spot is a “dick” and that it is where boys “wee” from. She described her hand as being “flat”, demonstrating her hand flat and palm down.
She said that she kept yelling out for help but the boys didn’t hear her. She let go of her pants following which he pulled her pants down, including her underwear, and he rubbed her “rude spot”. She does not know for how long he was rubbing her “rude spot”, but it was on the “outside”.
She continued that it looked like he had never seen a girl’s “rude spot” before because he kept rubbing it and rubbing it. She described her “rude spot” as from where she has a “wee”. She had “no clue” as to how long he rubbed her “rude spot”.
She said that she heard her two brothers yell out for help at which time the accused stopped what he was doing to her.[29] She pulled her pants back up and she and the accused went to see what was wrong. They found that her two brothers were stuck in a hole.
[29] T67.12-71.9
In oral evidence, she agreed that she described the hole to the police when she was interviewed a second time, this time in December 2018, that the hole had “heaps of grass and it was taking over the hole…”[30]
[30] T65.37-66.28
She also confirmed that she was not very far from the two boys when she saw they were in the hole and described the distance she was from the boys by reference to a table which was about the same size of the table at which she was sitting when giving evidence. I am unable to estimate the exact size of that table but I infer it was not very far.
They all returned to the car but she sat in the back seat because she didn’t want to sit in the front anymore and the accused drove back to her grandmother’s house. When they arrived they saw an ambulance at the house and learnt that the complainant’s great-grandmother had a fall.
About four days later she and BK went to the accused’s house. They went into a shed where they saw “girl magazines”.
They hadn’t been to the accused’s property before and she described the accused as having two dogs, heaps of chooks and that they found some binoculars as well as lots of smashed televisions. She said that he dumped everything at the back of his yard.[31]
[31] Exhibit P2
When inside the accused’s house on this occasion she said that he asked her if she would like to see Barbie dolls in a spare room, to which she said “no”. However, she said he pushed her into the spare room,[32] where there were no Barbie dolls and he was “tricking her just for a prank”. The door to the room was open and BK was just outside the door. [33]
[32] Exhibit P2; T71.19-72.32
[33] T72.2-6
She left the room and was asked by the accused if she wanted to go to the toilet “pretty girl”, to which she replied “no” because she “knew what was gonna happen”. She explained what she meant as “like when he done that cans I knew it would he was gonna do he was gonna come in and just”. She said that she guessed he was going do that.[34]
[34] Exhibit P2
After that, she and BK were doing jobs for him such as the dishes. He asked her to go up a ladder and take stuff out of the cupboard because it was dirty.
Her mother[35] came to the accused’s house at which time he asked if they would like an ice cream. They showed her older brother, KK, the binoculars they had found at the accused’s property.
[35] The complainant referred in evidence to her mother. She also referred to MN as "Grandma". Upon consideration of the evidence it seems to me the reference by the complainant to her mother or mum is in fact a reference to her grandmother, GR and the reference to her grandmother is a reference to MN. Nothing turns on that.
On another occasion she was at the accused’s house. This was after the occasion when she was asked by the accused if she wanted to see Barbie dolls.
This time the complainant and BK were at the accused’s house for about three hours. The complainant said BK went off by himself to the shed to see if there were any more toys in it.
The complainant says she was standing in front of the accused’s ute when the accused said to her “come here little pretty girl”. She said that she didn’t go and was going to slap him in the face but couldn’t because he had grabbed her hands. She said that he said to her he had a surprise for her “pretty little girl” at which time she ran to BK and said "B, B help me, help me C's gonna do something to me" and B said "No, he's not" and I'm like "Yes, he is".
KK
KK is the younger of the complainant’s two brothers. He was born on 17 July 2005 making him 15 years old when he gave oral evidence to the court.
Neither party submitted that the witness did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. I was satisfied he had sufficient understanding of the obligation to be truthful when giving sworn evidence.
On the application of the prosecution, the Court remained closed for his evidence and his evidence was recorded.
He remembered the day his great-grandmother had a fall and went to hospital. At that time GR, he and his siblings were staying in Yorketown.
On that day he, BK and the complainant went with the accused to collect bottles and cans. They travelled in the accused’s white ute and were picked up by him from the house in Yorketown.
He said all three children were sitting in the back and that they drove to a road just out of Warooka to collect bottle and cans. Once the vehicle stopped, the accused told him and BK to get out of the vehicle and to go and collect bottles and cans in the bushes. The accused told the complainant to stay behind.
Both he and BK went to find some bottles and cans. They were looking for about 10 minutes when they heard the complainant yell for help. He and BK ran back to the ute to “find out that it looked like nothing had happened”. He and BK walked to the vehicle and asked what was going on. The accused replied it was “someone from the other house who yelled for help”, although KK could not see a house from there.[36]
[36] T84.22-30
He said TJK was acting normally, whereas the accused had a grin on his face and was “acting weird”.
At that point, the accused was standing beside the vehicle on the passenger side and the complainant was sitting on the edge of the ute’s tailgate.[37]
[37] T86.1-28
When they heard the cry for help they would have been about 10 metres away from the ute. As he ran back towards the vehicle he could see the complainant very clearly. [38] He identified the accused’s utility as the vehicle he was in that day[39] and confirmed that the ute had a canopy.
[38] T86.33- 87.13
[39] Exhibit D4
He reiterated that the complainant was in the tray of the ute and confirmed that he and his brother ran back to the ute.[40]
[40] T89.2-18
After that they all got into the vehicle and drove to the Wattle Point wind farm before going back to Yorketown.[41]
[41] T82.2-83.37
When they arrived in Yorketown, there was an ambulance at the house and once they got out of the vehicle they found out that their great-grandmother had had a fall.
He, the complainant and BK attended the accused’s house on quite a few occasions with their grandmother.
He agreed that prior to being interviewed by police, the complainant had told him what happened and that she yelled for help.
He said that the complainant only once said to him about what happened[42] and that he was a bit angry about what the complainant told him.
[42] T84.34-85.15
He thought that they also went on another drive with the accused. He does not recall going to Hardwicke Bay to look for bottles. He does not recall that on the day on which his great-grandmother had a fall there was any time when the accused received a telephone call and braked very hard. He denied that at any time on the day when they were driving in the car he got stuck in a hole or that his shirt became stuck in a fence or that BK got stuck in a hole.[43]
[43] T89.24-90.35
In cross-examination it was suggested to KK that when he spoke to the police, he did not tell the police that the accused said the cry for help came from the other house. He responded that he did not know (if that was correct or not) but later in his evidence said positively that he told the police that the accused said when he got back to the utility that someone from the other house had yelled “help”.[44]
BK
[44] T92.35-94.34
BK did not give oral evidence. The prosecution tendered agreed facts that reflect the evidence BK would have given had he been called to give evidence.[45]
[45] Exhibit P7
BK was born on 1 May 2004 and at the time of the alleged incident was 10 years old. He is the oldest of the complainant’s two brothers.
There was an occasion when the accused took him, the complainant and their brother KK for a drive in his five seater white Ford ute at which time the complainant was sitting in the front passenger seat. He was sitting in the back with his brother KK and recalls KK “mucking around with binoculars”.
They went to Stansbury, got a drink and went around near Hardwicke Bay looking for bottles by the beach. They went near Edithburgh and Coobowie and then back to Yorketown. That was the day in which his great-grandmother had a fall.
The only time they went collecting bottles and cans was when they were at Hardwicke Bay on the beach. When they stopped at Hardwicke Bay the accused went one way, the complainant another and he and his brother went “another way”. They found a couple of bottles.
Whilst driving after Hardwicke Bay, the accused received a telephone call at which time he slammed on the brakes, took the call and drove straight to Yorketown (I infer to MN’s house) where they saw the ambulance for his great-grandmother.
When they were looking for bottles and cans they stopped on the side of the road but only the accused got out of the car. The three children remained in the car. It is not clear to me whether that was at Hardwicke Bay or at some other location but given that on this second occasion it is an agreed fact that BK’s evidence would have been that only the accused got out of the ute, I infer it was at some other location.
On one occasion (no time specified) whilst at the accused’s house, he found “girl magazines”. On this occasion the complainant came to him and KK. BK describes the complainant as having a frown or something on her face and saying “something has happened”. The complainant was “scared or something”. On that occasion the complainant had been left alone with the accused at the ute when he and KK were near the backyard at the accused’s house “moving stuff around”.
He says that in relation to “getting stuck”, his brother KK got his shirt caught in a barbed wire fence and BK went over to help him.
The complainant first told him something happened on 29 January.[46] No year is identified in Exhibit P7 but I note it is an agreed fact that SK would give evidence if called, that in term one, SK was talking to the complainant with a couple of other people present in the backyard of the complainant’s house at which time the complainant told her about an incident at the accused’s house, including the accusing locking the complainant in a room. That occurred a couple of months before her interview with police.[47] SK was interviewed by police on 6 December 2018. There is an inconsistency between “term one” and “a couple of months” before the interview with police, nonetheless I infer BK was referring to 29 January 2018.
[46] Exhibit P7 [18]-[20]
[47] Exhibit P8 [3]-[5]
At that time (29 January 2018), BK, KK and TJK were playing in the backyard (no location is identified but I infer MN’s house) and SK and another friend named ER were over. They were eating watermelons when the complainant said things about the accused and that the accused “did something to her”. The complainant told them the accused laid her down in the back seat of the car, took her hand and tried to shove her hand down his pants. BK would say in evidence if called that the complainant’s face was a bit red when she was telling them.[48]
SK
[48] Exhibit P7 [18]-[19]
SK attended the same primary school as the complainant.
The prosecution tendered agreed facts that reflect the evidence SK would give had she been called to give evidence.[49]
[49] Exhibit P8
SK was born on 3 March 2006, making her not quite 8 years old at the time of the alleged offending.
She was interviewed by police on 6 December 2018 when she was 12. At the time of that interview she had moved schools and was no longer at school with the complainant.
She recalls speaking to the complainant with a couple of other people in the backyard of the complainant’s house one of whom was ER. ER and the complainant’s brothers had asked the group “do you know what a ‘Pedro’ is?”. She remembered that they said it was about the accused and that it was short for “paedophile”.
She said that the complainant told her that whilst at the accused’s farm he “… sent the boys to do something and then had himself and the complainant in a room and locked the door”. SK had told police that the complainant was “pretty upset about it” and “like almost on the verge of crying”.
She denied there was ever a discussion with the complainant at the top section at school near the swings and denies ever talking to the complainant about the accused whilst at school.
Accused’s record of interview[50]
[50] Exhibit P5
The accused participated in an interview with the police which the prosecution tendered.[51]
[51] Exhibit P5
The accused denied touching the complainant but agreed that he had taken “them” on a bottle run a couple of times.
He said that he took them collecting bottles around the time his mother (ie: the complainant’s great-grandmother) had a fall.
He said that he took two boys and the complainant for a can and bottle run on the day his mother had a fall and thinks they went to Hardwicke Bay then around to Sultana Point then through to Stansbury where they got rid of the cans and bottles.
He said they were in his white Ford ute. BK and the complainant were in the back (seat) and KK was in the front seat. He did not think he drove on Warooka Road but he agreed that he drove near the side of the road and that the boys got out to collect cans whilst he put diesel in his ute.
Whilst he was putting diesel in his ute the complainant was sitting in the back seat of the vehicle.
He remembers the boys falling in a hole and getting stuck whilst he was putting diesel in the ute and said later that there could have been a hole they got stuck in and he remembered helping them to get out of the hole.
The boys had taken off to collect bottles and cans and he had to run around and find them, although he also said the boys were never out of his sight. After he had put diesel in the ute they went straight back to Yorketown.

He did not tell the boys to go off and look for cans and bottles but they wanted to do so to get pocket money. He took them to Stansbury where they got ice drinks.
He denied pushing the complainant down onto the back seat of the ute and touching her or grabbing her. He denied exposing his penis, putting the complainant’s hand on his penis, pulling her pants down and/or rubbing her vagina. He said there was never a time that he had touched the complainant.
He agreed that the three children had been at his house before but that he didn’t take them to the shed. Rather, they went out to the shed on their own because he was cleaning it out. He said that the children found pornographic magazines in the shed and the children helped him to clean up a cupboard, including going up a ladder. He denied the alleged offending.
Agreed facts
There are a number of further agreed facts[52] which were tendered and which I set out below:
[52] Exhibit P9
1.     The Complainant, TJK, was born on 28 August 2006;
2.     KK was born on 17 July 2005;
3.     The defendant was born on 15 August 1966;
4.     The defendant’s mother is MN, born on 18 January 1941;
5.     MN is the great-grandmother of the complainant and KK and BK.
6.MN had a fall at her home on 30 December 2014 and was taken by ambulance to Yorketown Hospital, arriving at 4.25pm.
7.At the time of the alleged offence, the complainant and KK and BK were living with their paternal grandmother, GR, in Cavendish, Victoria. She is the accused’s sister.
8.In December 2014, the defendant was the registered owner of a white Ford utility SA registration WYD518.
9.The complainant was first interviewed by police on Tuesday, 20 February 2018.
10.The defendant was arrested at about 2.30pm on Tuesday, 20 February 2018.
11.The defendant was interviewed by Detective Loren Franz at Yorketown Police Station at about 3.05pm that same day.
Photograph evidence
The defence tendered photographs of the white utility.[53] Those photographs show the rear passenger doors of the utility as opening towards the rear of the utility and a narrow backseat space.
[53] Exhibit P4
Consideration of the evidence
The complainant was interviewed on two occasions. The first interview was on 20 February 2018 when she was 11 years old[54] and the second in December 2018 when she was 12 years old.
[54] Exhibit P2
The audio-visual recording of the second interview was not tendered and not admitted into evidence, however it was the subject of cross-examination.
Much of the cross-examination of the complainant was directed to whether the complainant told the interviewing police officer of certain matters in the first or second interview or not at all.
The defence also point to inconsistencies between the witnesses. I deal with these matters below.
Inconsistencies
The complainant yelled for help
In her first interview TJK told Detective Franz that she yelled out for help when the alleged offending was taking place. In cross-examination she confirmed that she said this in the first interview.[55]
[55] T64.9-20
When cross-examined on her second interview, she agreed she did not say to Detective Franz in that second interview that she had yelled out for help. She denied that in saying to Detective Franz in the first interview that she yelled for help she was mistaken. She said that when speaking to Detective Franz on the second occasion she did not say to him that she yelled out for help because she was not asked.[56]
[56] T69.34-71.4
KK also said he heard the complainant yell for help and that when he and BK went back to the ute, the accused said it came from a nearby house.[57]
[57] T83.13-28; 84.22-30
The accused was not asked that question by police in his interview.
There is no evidence from BK on this issue.[58]
[58] Exhibit P7
I do not consider there is any inconsistency in TJK's evidence in relation to what she told Detective Franz in the first interview about yelling for help and her not telling Detective Franz in the second interview that she yelled for help. I consider her answer in cross-examination that she did not mention it in her second interview because she was not asked is a clear and concise explanation as to any potential inconsistency.
The two boys were stuck in a hole
The complainant says her two brothers were stuck in a hole on the day in question. Her brother, KK denies that occurred.[59] There is no evidence from BK on this issue. The accused agreed that the two boys did get stuck in a hole which was just around the rim of a sandhill on an occasion where he had pulled in near the side of the road near scrub however that was not on the Warooka Road. [60]
[59] T90.29-35; T91.21-28
[60] Exhibit P5
Although there is an inconsistency in the various accounts, the complainant and the accused both agree that at some stage the two boys became stuck in a hole. The complainant was quite specific in her description of the hole in which the two boys were stuck.[61] Both the complainant and the accused agreed that the two boys became stuck in a hole on an occasion when the accused had pulled in near the side of the road near scrub. I consider any inconsistency is a function of time and different recollections. I accept that on the occasion of the alleged offending, the two boys became stuck in a hole which was as described by the complainant.
The position of the complainant when the two boys returned to the ute
[61] T65.37-66.28
The complainant said that she and the accused heard the boys yell for help and went to where the boys were stuck in a hole.
In contrast, KK said that they came back to the ute once they heard the complainant cry for help and saw the complainant sitting on the ute's tailgate. That is consistent with his evidence that he and his brother did not get stuck in a hole.
He also said that when he heard the cry for help, they would have been about 10 metres away from the ute and that he could see the complainant very clearly as he ran back towards the vehicle. That evidence is inconsistent with the two boys falling in a hole and being helped out on the day.
As I have noted, both the complainant in her record of interview and the accused in his record of interview referred to helping the two boys out of a hole. The accused said that was not when they were near Warooka.[62]
[62] Exhibit P5
I consider KK is mistaken in his evidence that the two boys did not get stuck in a hole and that as a consequence he is also mistaken about the position of TJK when he and BK returned to the ute, such that he is more likely than not referring to another occasion.
Hardwicke Bay
Both the complainant and KK said they had not been to Hardwicke Bay. It is an agreed fact that BK would say in evidence that the three children and the accused went looking for bottles and cans near Hardwicke Bay.[63]
[63] Exhibit P7
The accused said he thought they went to Hardwicke Bay, Sultana Point and then through to Stansbury collecting bottles and cans on the day of MN’s fall.
I consider this inconsistency is an example of differing recollections from a number of years prior in relation to what was innocuous detail.
Shirt stuck
KK denied getting his shirt stuck in the fence, however it is an agreed fact that BK would give evidence that he did.
This is an inconsistency arising from the differing recollections of young children from a number of years prior in relation to what was an innocuous event at the time.
Binoculars
The complainant said that whilst at the accused’s house after the alleged offending she and BK found some binoculars. BK said that on the occasion when the accused took the three children for a drive in the ute on the day MN had a fall, KK was mucking around with binoculars.
There is no issue that the children found binoculars. This is an inconsistency as to when KK had the binoculars. Again, this is an inconsistency arising from the differing recollections of young children from a number of years prior in relation to what was an innocuous event.
Telling SK what happened
In oral evidence, the complainant said that in her first interview with the police in February 2018 she did not say she had told SK about everything the accused had done to her.[64] She said she told the police on that occasion that she said to SK that the accused touched her “on the rude spot” but that was all.[65]
[64] T48.21-25
[65] T49.1-6
She said in cross-examination that she did not remember whether she told Detective Franz in the second interview in December 2018 what she told SK.[66]
[66] T48.26-31
She later agreed in cross-examination that in the first interview she said to the police that she had told SK everything the accused had done[67] but then agreed that in the second interview in December 2018 she told the police that she only told SK that the accused had touched her “rude spot”.[68]
[67] T49.8-25
[68] T49.26-36
She agreed there is a difference between what she told Detective Franz in the first interview and what she told him in the second interview and that there has been a change.[69] She clarified that in the first interview she made no mention to SK of the accused touching her "rude part" but in the second interview she did because she was correcting herself.[70]
[69] T49.37-50.16; T51.34-54.37
[70] T50.17-36
The parts of the first record of interview to which Mr Jolly referred in cross-examination did not form part of the record of interview admitted into evidence in the trial, however the complainant accepted she said what was put to her.[71] As I have noted, the record of interview of the second interview was not admitted into evidence.
[71] Exhibit P2
I accept the complainant’s explanation of correcting herself.[72] In particular, she was 11 years old at the first interview, giving an account of matters which occurred when she was 8 years old.
Locked door
[72] R v El Rifai [2012] SASCFC 98, [87]-[89] per David J
This evidence concerns one of the items of discreditable conduct.
TJK said in her first interview with the police evidence that on a day after the alleged offending she was at the accused’s house with her brother BK and was asked by the accused if she would like to see Barbie dolls which were in a room at the accused’s house. She said that she said “no” but was pushed by the accused into the room. There were no Barbie dolls in that room. [73]
[73] Exhibit P2
In cross-examination during her oral evidence, she said that BK was outside the room and the door was open.[74]There is no agreed fact that BK would give evidence to that effect if called.
[74] T71.28-72.23
It is an agreed fact that SK would give evidence that she recalls speaking to the complainant with a couple of other young children present, including ER, at which time the complainant told her that whilst at the accused’s farm he “sent the boys to do something and then had himself and the complainant in a room and locked the door”. [75]
[75] Exhibit P8 [7]
SK would also say that the complainant was “pretty upset about it” and “like almost on the verge of crying”.
In cross-examination, TJK was asked if it was the case that "… the only thing you said to (SK) was that when you were at C's farm, he sent the boys to do something and then locked you in a room with him".
TJK denied she ever said that to SK.[76]
[76] T54.1-7
What SK would say in evidence if called about the door being locked is inconsistent with the complainant’s evidence that she was pushed into the room but that the door remained open and that BK was outside the door.
Whether locked or not, it was clearly an upsetting experience for the complainant, as revealed by the evidence SK would give if called.[77]
[77] Exhibit P8 [7]
I consider that if SK was to say in evidence if called that TJK told her the door was locked, she would be mistaken. The complainant was sure in her denial that she said to SK the door was locked and it is easy to see why SK may be confused about what she was told of this event. I am satisfied that SK has extrapolated what TJK told her about being pushed into a room to TJK telling her the door was closed or locked.
I accept the complainant's evidence that she was pushed into an empty room by the accused on the pretext there were Barbie dolls in there but that the door remained open.
Hands down pants
It is an agreed fact that BK would say in evidence if called,[78] that TJK said to him that the accused laid her down in the back of the car and took her hand and tried to shove it down his pants. In contrast, TJK told the police in her first interview the accused pulled his pants down before he put her hand on his penis.
[78] Exhibit P7 [20]
I consider that the difference between what she is alleged to have told BK and KK about the offending and what she told the police is explicable by the embarrassment of a young girl when speaking with her two older brothers and I am satisfied that this inconsistency arises from that embarrassment.
The accused saying to TJK "come here pretty little girl"
The third item of discreditable conduct concerns the complainant being at the accused’s house on another occasion after the day of the alleged offending and after the day in which she was pushed into an empty room to look at Barbie dolls. The complainant said the accused held the complainant’s hand whilst she was standing in front of his ute and said to her “come here little pretty girl” and that he had a surprise for her "pretty little girl".
In her first interview with police, the complainant said she ran to BK and said to BK:
"B, B help me, help me C's gonna do something to me" and B said "No, he's not" and I'm like "Yes, he is".
It is an agreed fact that BK would say in evidence if called that he was looking for things in the accused’s shed with KK when the complainant came up to him and KK and said that “something has happened” with the complainant having a frown or something on her face and that she was “scared or something”. This occurred when the complainant was left alone with the accused at the ute when BK and KK were near the backyard at the accused’s house moving stuff around.
I do not consider that the difference in the exact words that were said is significant. It is consistent with the differing recollections of young children from a number of years prior.
Complaint to her brothers
It is an agreed fact that BK would say in evidence if called[79] that the complainant first told BK something had happened on 29 January (no year is identified but I have found it was in 2018) whilst she was playing in the backyard (with BK and KK) and SK and ER were over. KK said in evidence that TJK told him what had happened[80] before he was interviewed by the police. There is no evidence as to when that occurred. The complainant told Detective Franz that she told SK about what had happened. I have dealt with that above. There is no evidence from the complainant that she told her brothers what happened. To that extent there is no inconsistency.
[79] Exhibit P7 [18]-[20]
[80] T84.31-38
Section 34M - Evidence Act 1929
As to the evidence of the complainant, there was no suggestion by the prosecution that any complaint by TJK to her brothers was evidence admissible pursuant to section 34M of the Evidence Act 1929 (SA). The evidence of complaint was adduced in the course of cross-examination of KK and in Exhibit P7. To the extent there is evidence of what BK would say if called[81] and the broad, unparticularised evidence that emerged in the cross-examination of KK, such evidence cannot be used to show consistency of account, nor consistency of conduct nor as evidence of the truth of what was alleged. I draw no inference adverse to the accused from this evidence. I use this evidence for the sole purpose of considering how any inconsistency may impact the complainant’s credibility and reliability.
[81] Exhibit P7 [20]
Assessment of witnesses
Whether the prosecution has established the accused as being guilty of the two offences beyond reasonable doubt relies on me being satisfied of both the credibility and reliability of the complainant and KK such that I am satisfied beyond reasonable doubt of the guilt of the accused.
All witnesses agree the three children were taken to collect bottles and cans by the accused on the day MN had a fall.
I deal first with the evidence of discreditable conduct. I have only used that evidence for the purposes identified by the defence.
Barbie dolls
The first item of discreditable conduct concerns the accused pushing the complainant into an empty room on an occasion when she was visiting his house with BK.
I have dealt with the inconsistency between what TJK said about being pushed into a spare room by the accused, with the door being left open and her telling SK the door was locked. I do not consider an inconsistency of this type is such as to affect the credibility and/or reliability of the complainant as a witness on the central issue of whether the accused indecently assaulted her.
Toilet
The second item of discreditable conduct is the accused asking TJK whether she wanted to go to the toilet “pretty girl”, directed as it was to an 8 year old girl and following pushing her into the spare room on the pretext of Barbie dolls being in the room. There is no inconsistency and I accept TJK’s evidence as to this conduct linked as it is to the “Barbie dolls” conduct.
The accused saying to TJK "come here pretty little girl"
This is the third item of discreditable conduct. I have dealt with the inconsistency between what TJK said to BK and BK's version of what TJK said to him. I do not consider an inconsistency of this type such as to affect the credibility and/or reliability of the complainant on the central issue of whether the accused indecently assaulted her.
Apart from the alleged inconsistencies said to arise out of the complainant's evidence of discreditable conduct, I have also dealt with the inconsistencies between other evidence and the complainant's evidence.
I have scrutinised the complainant’s evidence carefully as well as the other evidence.
Although there are inconsistencies between the complainant's evidence and some of the other evidence, as I have set out, they generally concern events which have occurred but there is a difference as to when and where those events occurred.
Putting aside the alleged offending, the differences in the evidence on the details of events that occurred is to be expected with the passage of time and in a number of cases the memories of young children. These inconsistencies do not cause me to doubt the credibility and reliability of complainant's evidence as to the alleged offending.
As to the evidence concerning the alleged offending itself, the complainant was quite clear in her record of interview and in her oral evidence as to what occurred. She was clear in her denials that she was mistaken as to what the accused is alleged to have done.
In the first interview with Detective Franz, the complainant described the alleged offending behaviour in a consistent way. In contrast, there is an inconsistency between what she told Detective Franz and what BK would say the complainant said to him and KK had he been called to give evidence, which is that the accused took her hand and tried to shove her hand down his pants. I have dealt with that inconsistency above. I do not consider the inconsistency is such as to affect the complainant's credibility or reliability as a witness on the central issue of whether the accused indecently assaulted her.
In particular, her evidence as to the orientation of her hand when it was placed on the accused’s penis, an albeit generic description of the accused’s penis, her evidence that she refused to pull down her pants because she knew she did not have to do so, her evidence as to the position of the accused outside the rear passenger door of the ute, the position of her feet, her attempts to sit up and her evidence that looked like the accused had never seen a girl’s “rude spot” before because he kept rubbing it and rubbing it, was compelling.

The complainant’s evidence of the circumstances surrounding the alleged offending, such as her yelling for help, the two boys getting stuck a hole, her description of the hole and the agreed fact that BK would say in evidence, if called, that the accused said to him that the call for help BK heard came from a nearby house is also compelling.
Conclusion on the credibility and/or reliability of the witnesses
I have accepted the complainant's evidence about the three items of discreditable conduct. Nonetheless, as I have made clear, I have not used this evidence for any purpose other than that identified by the defence.
As to credibility, I consider the complainant to be an impressive, credible witness. So too, her brother KK was an impressive, credible witness.
As to reliability, having seen the complainant give evidence and having scrutinised her evidence carefully, I consider the complainant is not only a credible witness but also a reliable witness. She gave her evidence carefully doing her best to remember what happened on the alleged occasion and she was both considered and thoughtful. As set out above, her evidence of the conduct the subject of both counts was compelling.
I am satisfied as to the truth and reliability of her account as to what occurred in the back seat of the accused’s ute that day.
I consider KK to be both a credible and generally reliable witness, albeit mistaken in his evidence that when he and BK returned to the ute TJK was sitting on the tailgate.
In reaching the above conclusions, I have considered the accused's record of interview carefully, making allowances for his cognitive impairment. I have considered his denials of the alleged offending and reject them; preferring as I do the evidence of the complainant, notwithstanding the accused’s denials.
The charged offences
The prosecution case is that the offences occurred as alleged. The defence case is that they did not occur.
I bear in mind that the prosecution bears the onus of proving its case against the accused beyond reasonable doubt and that the accused does not have to prove anything.
First count - aggravated indecent assault
As to count 1, I am satisfied beyond reasonable doubt as to each of the elements of indecent assault. I find that the accused between 1 December 2014 and 31 January 2015 at Warooka or another place, indecently assaulted TJK by causing TJK to touch his penis.
Since there is no dispute TJK was under the age of 14 at the time of the offending, the accused is guilty of the first count of aggravated indecent assault.
Second count - aggravated indecent assault
As to count 2, I am satisfied beyond reasonable doubt as to each of the elements of indecent assault. I find that the accused between 1 December 2014 and 31 January 2015 at Warooka or another place, indecently assaulted TJK by touching her vagina.
Since there is no dispute TJK was under the age of 14 years at the time of the offending, the accused is guilty of the second count of aggravated indecent assault.
Conclusion
I find the accused guilty on both counts.