R v PADBERG - [2022] SADC 112

District Court of South Australia
(Criminal)
R v PADBERG
Criminal Trial by Judge Alone
[2022] SADC 112
Reasons for the Verdict of her Honour Judge McIntyre
13 September 2022
CRIMINAL LAW - PARTICULARS OF OFFENCE
The accused is charged on Information with one count of Maintaining an Unlawful Sexual Relationship with a Child under s50(1) of the Criminal Law Consolidation Act.
Held: Guilty of the charged offence.
Evidence Act 1929 (SA) s 13BA, 12AB and s 34M; Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.

R v PADBERG
[2022] SADC 112

The accused was charged on Information dated 13 August 2021 with maintaining an unlawful sexual relationship with a child between 31 December 2016 and 17 June 2020. He elected to be tried by a Judge without a jury. For the reasons I now publish I find the accused guilty of the charged offence.
Background
Much of the evidence in this trial was not in dispute. The complainant in this matter is the daughter of the accused’s former partner, NJ. NJ also had a son, who was 1 year younger than the complainant. In January 2011, when the complainant was two, her mother NJ entered a relationship with the accused. In April 2014, NJ and the accused began living together, shortly before their son was born in May 2014. The accused became, for all practical purposes, the complainant’s stepfather and she referred to him as “Dad”.
In February 2015, the family moved into a three-bedroom home in the northern suburbs of Adelaide. The complainant, her mother and two brothers lived together at that house until 16 June 2020 when a report was made to police about this matter. The accused lived with the family at that home from February 2015 for about a year and a half. He then moved into his mother’s house for financial reasons. His relationship with NJ continued and he visited the family regularly. In late 2016, NJ was diagnosed with serious health issues and, from New Year’s Eve 2016, the accused spent more time at the family home to assist NJ and to care for the children. On two or three occasions during the week the accused would stay overnight. The charge is particularised as having occurred at the family home between 31 December 2016 and 17 June 2020 when the complainant was aged between 7 and 11.
The allegations that form the basis of the charged offence came to light following the complainant making disclosures to two school friends. The accused was arrested and charged on 4 September 2020.
The Charge
The offence of maintaining an unlawful sexual relationship with a child has four elements that must be established beyond reasonable doubt:
1.     The accused knowingly maintained a relationship with the complainant.
2.     In the course of that relationship the accused engaged in two or more            unlawful sexual acts with the complainant.
3.     The complainant was a child during the period of the relationship.
4.     The accused was an adult during the period of the relationship.
There is no question that the accused was, at all relevant times, an adult and that the complainant was at all material times a child. It is agreed that the complainant was born in May 2009 and the accused was born in December 1982. There is likewise no dispute that the accused maintained a relationship with the complainant in the sense that, between the relevant dates, he had assumed a parental role towards the complainant. The issue for determination is whether he engaged in two or more unlawful sexual acts with or towards the complainant during the course of that relationship. These acts are particularised in the Information as follows:
a)Causing the complainant to perform fellatio upon him on more than one occasion;
b)Inserting his finger in her vagina;
c)     Touching her buttocks;
d)     Inserting his penis into her vagina;
e)     Inserting his penis into her anus;
f)Ejaculating onto her body on more than one occasion; and
g)     Showing her pornography on more than one occasion.
The prosecution says that these are all acts which would constitute a sexual offence. Particulars (a), (b), (d) and (e) are the offence of unlawful sexual intercourse; particular (c) is the offence of indecent assault and particulars (f) and (g) are the offence of gross indecency. I do not have to be satisfied of the particulars of any unlawful sexual act as if it were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts. I do however note, for completeness, the elements of each of those offences as follows:
·The prosecution must prove two elements beyond reasonable doubt in order to prove the offence of unlawful sexual intercourse. First, that the accused had sexual intercourse with the complainant and, second, that the complainant was under 17 years of age at the time.
·In order to prove the offence of indecent assault the prosecution must prove first that the accused assaulted the complainant. An assault is an intentional and unlawful application of force or violence to another person without their consent; however, as a child, the complainant is unable to consent to the type of touching alleged here. The second element that must be proven is that the assault was accompanied by or occurred in circumstances of indecency. The indecent circumstances must involve a sexual connotation.
·To prove the offence of gross indecency the prosecution must prove that the accused committed a grossly indecent act; that the act was committed in the presence of the complainant and that the act was committed when the complainant was aged under 16 years.
Some acts are particularised as having occurred on more than one occasion. I need not be satisfied that this is the case; I need only be satisfied that two or more unlawful sexual acts occurred in the context of the ongoing relationship in order to find the charge proven.
Legal considerations and general directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
·The accused has the presumption of innocence in his favour. He is innocent of the charge unless and until the prosecution prove his guilt beyond reasonable doubt. He need not prove anything. The accused cannot be convicted unless the evidence proves the elements of the offence to the requisite standard.
·In this matter the accused chose not to give evidence. He was under no obligation to do so. I draw no inference from the fact that he exercised his right to silence at trial.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the offence, then I must give the accused the benefit of the doubt and find him not guilty.
·In making findings of fact, I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence and the proper approach to drawing inferences of fact.
Vulnerable Witness provisions
The complainant was interviewed by a prescribed interviewer on 4 September 2020. She was reinterviewed on 20 June 2021 making further disclosures about being shown pornography by the accused. Those interviews were conducted under s.13BA of the Evidence Act (SA) 1929 (the EA). They were admitted into evidence before me. There was a hearing under s.12AB of the EA in which the complainant gave evidence in a closed court via audio visual link with the assistance of a court companion. This was recorded and played at trial before me.
The complainant’s school friends, AH and SF, were also interviewed by a prescribed interviewer under s.13BA of the EA and gave evidence at the s.12AB hearing in the same manner as the complainant. Their interviews and evidence from the s.12AB hearing were admitted into evidence before me. I direct myself that I may not draw any inference adverse to the accused from the making of these arrangements and I must not permit them to influence the weight to be given to the evidence of the complainant, AH or SF.
Prosecution Case
The prosecution case consisted of evidence from the complainant, her mother NJ, the accused’s mother CMT, two of the complainant’s school friends, SF and AH, two police officers Detective Brevet Sergeant Delaney and Brevet Sergeant Cheetman together with various exhibits and some agreed facts (exhibit P7) as to the ages of relevant parties and the outcome of a medical examination of the complainant on 6 October 2020.
The complainant
The complainant was 11 at the time of her first interview with the prescribed interviewer, a social worker with Child Protection Services. The complainant was 12 at the time she gave evidence in the s.12AB hearing. Recordings of the two prescribed interviews were admitted into evidence as exhibits P2A and P2B and the evidence from the pre-trial special hearing was admitted as exhibit P6. In addition, I was provided with transcript for each of those exhibits. This transcript was marked for identification.
Most of the allegations that form the basis of the charge arose during the first interview on 4 September 2020. During that interview the complainant described several sexual acts that she says the accused subjected her to. To summarise, she told the interviewer that:
·Her dad started these sexual acts when she was developing her breasts.
·Many incidents occurred in a room in the shed at her home. She could not remember the first time in the shed but described three, possibly four, incidents in the shed one of which was the last occasion something occurred in the shed.
·The complainant described an occasion in the shed where the accused asked to “shove his dick up her vagina” and she said “no” on multiple occasions. She did not want to get pregnant. On this occasion he did shove his dick in her vagina. It hurt. She kicked and punched him in the stomach and screamed to him to stop. He stopped and they both put their clothes on and went inside the house. What happened in the shed was not discussed.
·She described another occasion in the shed where the accused “put his dick up her arse” putting it in and out but not all the way. He then ejaculated all over her body which she hated.
·The complainant described an incident in the shed when she asked the accused if she could have some money for a whole box of Tic Tacs. He said, “I will let you suck my dick and then you will get the money”. She did not want to, and he was like “suck it” and she was like “no no no”. She almost slapped him. It was not clear from her account whether she did as he asked. It is also not clear whether this incident was the same incident as the incident she described as the last incident in the shed. She described the last incident as an occasion when the accused wanted her to suck his dick and she refused but he “pretty much forced” her to do it. He grabbed her by the hair and forced her down. She slapped his hand off and said she wasn’t doing it. She then referred to an amount of $7.00 which may have some relevance to the Tic Tac incident.
·Another incident occurred when it was just her and the accused alone in the house. They were in the bedroom that the accused shared with NJ, the complainant’s mother. They were both naked. She lay on his belly and sucked his dick using her mouth whilst he played with her arse with his hands. The accused also touched her vagina on this occasion which was uncomfortable because he was shoving his fingers up there. The accused told her to keep it a secret.
·Sometimes the accused would shut the door of her bedroom when he was saying good night. He would force her down from her bed which was raised above her desk in a bunk bed style arrangement with a ladder. The complainant only described one incident in her bedroom. The accused told her to get down as he had something for her. She asked what it was, and he said he just wanted a suck. He told her to get down saying “I will let you suck my dick, and I will play with you for a bit”. The incident occurred in a tight space under her bed. They both had no clothes on. She was on her mum’s old chair. The accused spread her legs and said he wanted to “shove his dick up her vagina”. She did not want this because she thought it would hurt and she was concerned about falling pregnant. The interaction came to an end when her little brother interrupted them by knocking on the door saying ‘daddy’. She “shoved dad’s fat gut away”. He put his clothes on and left the room. Her brother was about 5 so she thought this incident might have happened the year before the interview.
At the time of her second s.13BA interview, on 20 June 2021, the complainant was 12. She said that the accused showed her videos on Porn Hub. She said, “it was all just about sex and then I felt very uncomfortable, so I stopped and then he just kept on doing it again and again”. There wasn’t really any way of her stopping him because he was older. The first time he showed her Porn Hub was when she started developing breasts. She was around 9 or 10 when she started developing. They watched “naked people, girls, naked boys, dicks, vaginas, bums and just a lot of sex” on Porn Hub. He played Porn Hub a lot either when her mum was asleep or not around. He would do this on his computer and on his phone. She also described an incident in the shed where she thought she was going to play a dart game when they “had like basically a sex session”. She volunteered “but luckily, I’m not pregnant”. The interviewer asked her about this incident, but the complainant would not elaborate saying she did not want to go over it again. It is not clear if this is a further incident or one of those described in the first interview.
In the pre-trial special hearing, the complainant was asked several questions about her family and the home that she was living in at the time of these incidents. She was shown photographs, (Exhibit P5) and a floor plan of the home (Exhibit P4). She explained where her bedroom was, the furnishings in her bedroom including “mum’s old chair”, the garage and shed set up. In looking at the photographs (exhibit P5) she described the door opening into a separate room at the back of the shed. This room was the area where the accused “did all that stuff to me”.
The complainant was asked about the incident in her bedroom when her brother came to the door. She identified the space underneath her bed next to a desk as the location of the incident. She pointed out the chair she was in and said that, at the time, it was pulled near the end of the ladder. The accused tried to put his dick in her vagina saying “don’t worry, don’t worry” but she didn’t want it. His dick did not go in her vagina on this occasion because her brother came to the door.
She was asked to describe the accused’s dick and whether she had ever touched it with her hands. She said it “felt weird, rough and like skin”. She was then asked about what she had said to the first interviewer about times when the accused would “cum” as follows:[1]
[1] MFI-P6A [24-26]
Q.Could you describe what you mean by 'cum'.
A.It was white.
Q.Where did the cum come from.
A.His dick.
Q.How many times did you see cum coming from his dick.
A.Five - no, I can't remember how many times.
Q.You told Sally that when he would do the cum thing it would go all over you. What parts of your body did it go all over.
A.Mainly my breasts and my vagina.
Q.Could you describe what the cum felt like when it went on your breasts or vagina.
A.It felt wet and weird.
Q.Did the cum thing ever go near your mouth.
A.Yes.
Q.Describe what happened when it went near your mouth.
A.[The accused] was holding my hand with one hand and with the other hand he was - I don't know what he was doing with his dick, but he was doing something weird, and then as soon as he said 'It's coming', I'm like 'What is?', and then it splattered all over my face, and it went near my mouth and it was very, very disgusting.
Q.Describe what you could taste in your mouth.
A.Sour.
Q.Did it go in your mouth one time or more than one time.
A.More than one time.
Q.Are you able to describe any other time when it went in your mouth.
A.When he put my mouth on his dick.
Q.Did [the accused] ever say anything to you about the cum going in your mouth.
A.No.
Q.Did you ever say anything to him about it going in your mouth.
A.Yes.
Q.What did you say to him about that.
A.I said I didn't like it.
Q.How did he respond when you said you didn't like it.
A.He said 'Don't worry, it's only going to be a little bit'.
Q.When the cum went on to parts of your body, did you or anyone else do anything to clean it off.
A.[The accused] used rags to clean it off or his clothes.
Q.When would he use rags to clean it off.
A.When we were in the shed.
Q.When would he use his clothes.
A.When we were in the bedroom, in mum's bedroom.
The complainant gave evidence about how these allegations came to light. She was at school; her friend Sophie was dealing with a problem with her stepdad and was in the reengagement room. The complainant says she asked her friends AH and SF “shouldn’t I be in there as well because something similar happened to me as well”. They said ‘what’ and she said, “dad was having sex with me” and then she told them not to tell anyone, but she is glad that they did.
Complainant’s school friends
The complainant’s two friends AH and SF gave evidence at the pre-trial special hearing (exhibit P6). Both had been interviewed by a prescribed interviewer prior to this. Recordings of the prescribed interviews and the s12AB hearing were admitted into evidence as exhibits. In addition, I was provided with transcript for each of those exhibits which were marked for identification.
The evidence of both AH and SF concerned the complainant’s initial complaint and was called under s.34M of the EA. Evidence of an initial complaint is admitted both to inform the trier of fact how an allegation first came to light and as evidence of the consistency of conduct of the alleged complainant. However, the complaint does not constitute evidence of the truth of the facts alleged by the complainant.
SF was spoken to on 23 June 2021 (Exhibit P1). She was at the time 11. She told the interviewer that the complainant said her dad, or her stepdad inappropriately touched her and that had been going on ever since she was 8. The complainant was very nervous, and she didn’t like to tell anybody. She was kind of shaking while she was telling her and AH about her stepdad. She didn’t tell them anymore about it. They didn’t ask any questions because they knew it was a sensitive topic. At the pre-trial special hearing SF was asked what words the complainant used to tell SF what her stepdad was doing. SF replied that the complainant said that he had raped her.

AH was 11 when she was interviewed by a police officer on 19 April 2021 (Exhibit P3). AH, the complainant, and SF had been in the reengagement room at school. The teacher asked if they had any family issues. They said no. As they were walking out, the complainant said, “I do have an issue”. She told SF and AH that her stepdad had been sleeping with her. AH asked if she was serious. The complainant replied, ‘I am not joking’. She told them not to tell anybody but AH said as a friend she couldn’t keep that stuff to herself, and she told the teacher.
At the pre-trial special hearing AH was asked:[2]
[2] MFI-P6A –[46]- [6-14]
Q.Are you able to tell us the words that (the complainant) used when she told you about her stepdad sleeping with her.
A.Probably. Yes.
Q.What words did (the complainant) say to you to explain what her stepdad was doing.
A.She just told me that her stepdad was sleeping with her, and she just told me not to tell anybody and that's the only thing she told me. That's the only one she told me.
The complainant’s mother
The complainant’s mother gave some background information concerning her daughter, her relationship with the accused and her health issues. She gave evidence about the occasions on which the accused would attend at the house following her diagnosis and about his interactions with her daughter.
Detective Brevet Sergeant Delaney
Detective Delaney attended at the complainant’s home on 16 June 2020 following a report from the complainant’s school. Detective Delaney noted that the complainant’s mother had mobility issues and was using a walking frame. She had a conversation with the complainant about what she disclosed to a teacher at her school that day. The complainant’s demeanour was calm. She wasn’t distressed or upset; she seemed a bit matter of fact. Detective Delaney said that as part of her conversation with the complainant she specifically asked whether the accused had ever put anything inside her and she said ‘no’. Detective Delaney was then asked what else the complainant said to her prior to saying that the accused did not ever put anything inside of her as follows:[3]
[3] T p37 [25-34]
A.Yep, I said to her that I had some information that she had told a teacher that her stepdad touches her inappropriately and she said that it did happen but she didn't want to report it. I then said 'Where does he touch you?' and she pointed to her breasts, her vagina and her bottom. I then asked her 'Is that on top of your clothing or under your clothing?' and she said 'Sometimes on top and sometimes underneath', and then that's when I asked about whether he ever puts anything inside of her.
The accused’s mother
The prosecution also called the accused’s mother CMT at the request of the defence. Defence counsel cross-examined her. CMT became aware of an incident that had been reported between her son and the complainant. It was clear from her evidence that she is not aware of the totality of the allegations as her son found it too upsetting to speak about. The complainant would still go and visit her after this from time to time. CMT described a conversation they had at the table following a comment by the complainant’s younger brother. CMT’s evidence was as follows: [4]
[4] T p39 [23-29]
Q.Did [the brother] ask you a question about [the accused] hurting [the complainant].
A.Yes, he did.
Q.And what did you say.
A.I said that he was innocent and [the complainant] said then that, yes, he was innocent.
Q.So [the complainant] said that after you had.
A.Yes.
Brevet Sergeant Cheetman
The final witness was the investigating officer, Brevet Sergeant Cheetman who gave some formal evidence about the arrest of the accused and the taking of photographs.
Submissions and discussion
Defence say quite correctly that the prosecution case rests entirely on the evidence of the complainant. There are no independent witnesses to the alleged offending, there is no forensic or medical material to support her evidence. I must be satisfied of the complainant’s evidence beyond reasonable doubt if I am to convict the accused. Several criticisms are made of her evidence to support the submission that I ought not to accept the complainant’s evidence.
I accept the submissions that that the complainant was unable to give evidence as to when the offending started, for how long it continued, how often it continued, how it started or when it ended. Moreover, I accept that her evidence lacked specificity as to how many times the various incidents are alleged to have occurred, how frequently, at what time of day, whether they occurred on school days or during school holidays.
It was put to me that the complainant’s matter of fact presentation was at odds with what might be expected from someone in her position. It was further put that the complainant could show emotion such as when she expressed excitement at nail polish colours available during the first interview but, when talking about the offending she came across as blasé, annoyed or matter of fact. It was said that the one thing that never came across in her evidence is distress. It was submitted that there were no occasions where the complainant demonstrated the embarrassment, distress or shame that might otherwise be expected. I do not accept these submissions. They are based upon a stereotype of how a victim of sexual offending is presumed to give evidence. Complainants in sexual offences present in a variety of ways. They do not always show distress in an obvious manner. Further, I do not consider that the submissions accurately reflect the complainant’s presentation. In my view there were signs of discomfort on her part. For example, the comments the complainant made about wanting to punch the accused and any other stepfather who might do the same things to her were indicative of emotion. Likewise, her refusal to discuss certain issues in the second interview because she “did not want to go over it again” were congruent with discomfort.
It was put that the complainant had moments where she became distracted. This is certainly the case in the two prescribed interviews. This was not evident in the pre-trial special hearing. Defence suggests that, on these occasions, the complainant deliberately directed the conversation away from topics that she did not want to talk about. It was submitted that this could be because she doesn’t know an answer to a particular question, she has not remembered what she said previously, or she has not fabricated an answer to cover that question. I have carefully considered the portions of the evidence that I was referred to. I do not accept that submission. For example, I was referred to a portion of the first prescribed interview where the complainant gives what was described in submissions as a theatrical yawn followed by a change of subject. I accept that the complainant did change the subject. She had just been telling the interviewer about an incident where the accused wanted to insert his penis into her vagina. The next question asked, “What happened next”, was open ended. It was not difficult to respond to even if the complainant was fabricating her allegations. I viewed the yawn and change of subject as indicative of discomfort rather than a situation where the complainant did not know the answer to a question or was avoiding answering a difficult question.
The complainant’s evidence was also criticised because there was no progression of allegations. It was said to be a jumble of events that sometimes blend into one another. I accept that this was a valid observation but, for the reasons that follow, the observation does not cause me overall to doubt the complainant’s evidence. The complainant’s description of the last shed incident in the first interview for example is not clear. It was unclear from the interview whether this incident was the “Tic-Tac” incident or a separate and distinct incident. Whilst I am satisfied that there was an incident in the shed where the accused compelled the complainant to take his penis into her mouth, I could not be satisfied that there was more than one such incident.
Defence counsel raised another example that occurred during the first interview. The complainant was describing an alleged “sex session” in the shed where they had taken their clothes off. She described kicking, screaming and punching. Defence submitted that this evidence began as a description of an incident that occurred on the chair in her bedroom and is then subsequently moved to shed. It was suggested that this was an example of the complainant’s inability to keep track of what she is describing and that this demonstrated that this was not a memory of events that occurred but rather it was a muddled fabrication. I do not accept that this was the case. This exchange took place after the yawn that I have referred to above. What preceded the yawn was indeed a discussion about an incident in the complainant’s bedroom. The incident being discussed at the time of the yawn occurred in the bedroom in the context of the accused wanting to insert his penis into her vagina but not achieving that object because of the interruption by her brother. After the yawn a few irrelevant matters were discussed. The interviewer was seeking to get back to the topic of what happened in the complainant’s bedroom but introduced it by saying “You were saying ‘you are gonna get me pregnant’ and dad was saying you could get some pills”. The complainant’s response deals with a similar topic but not, in my view, the same incident. It is clear from a consideration of the whole of the interview, that the complainant said that a discussion about pregnancy also occurred in the shed in the context of the accused putting his penis into her vagina.
Aspects of the complainant’s evidence were criticised for implausibility. The complainant’s mother said that the complainant would often ask the accused to go out to the shed for a talk and they would be in there for about 15 to 30 minutes and then later both come out laughing. She also gave evidence that the complainant’s brothers were frequently running in and out of the house and into the shed. It is said that the incident that the complainant described in the shed as a ‘sex session’ where she was kicking, screaming, and punching was implausible. There were likely children and other people within earshot of the shed and there was no evidence of anyone hearing the yelling or the screaming. Likewise, the demeanour of both laughing as they exited the shed is inconsistent with the things the complainant says happened in the shed.
I do not consider the shed evidence to be implausible. On any version, the accused and the complainant went into the shed from time to time. The fact that the complainant may have asked to go in there with the accused does not contradict the complainant’s evidence nor does the fact that the complainant was observed to come out of the shed laughing on occasion. The lack of evidence about others hearing screaming or yelling does not cause me to doubt the complainant. There are many reasons why this might be the case. The assertion that there were likely others within earshot is speculative.
It is said that the alleged offending was brazen. There was no evidence that the accused shut or locked the shed door. There is likewise, no evidence that everyone was out of the house on many of the occasions. There was no evidence that the door was shut when the accused went into the complainant’s bedroom. The complainant’s bedroom was just feet away from the loungeroom and the complainant’s brothers’ room. I accept that the offending alleged was brazen but not so brazen as to be implausible. It is the regrettable experience of the courts that such offending often takes place in circumstances that run significant risks of discovery.
Another issue raised by defence was the physical impossibility or improbability of some of the allegations. The complainant’s mother gave evidence that the complainant’s room was so messy she could not get into it. Nor could she stand up underneath the bed which confirmed that the accused could not as well. It was said that the incident described in the bedroom when the complainant’s brother knocked on the door would be next to impossible. Specifically, that a large overweight person such as the accused in a cluttered, messy bedroom and a tight space could not take his clothes off, undertake the activities described by the complainant or get dressed quickly or quietly. Another example of physical impossibility was said to be the incident that the complainant described as occurring in her mother’s bedroom when the rest of the family was out. She gave evidence that she lay on the accused’s belly and body and took his penis in her mouth. I have carefully considered the evidence. I do not consider that what the complainant describes in relation to either incident is physically impossible nor do I consider her evidence improbable. I reject this submission.
Several asserted inconsistencies in the complainant’s evidence were raised by defence counsel. Some of these related to differences in the evidence of the complainant and her mother. I have reservations about NJ’s evidence. It was plain that NJ, the complainant’s mother, does not believe these allegations. The overall tenor of her evidence was that these things could not have happened first, because she was always there and second, because her daughter seemed to enjoy spending time in company with the accused. Some things NJ gave evidence about, such as the proximity of all rooms in the house, are plainly true. Other aspects of her evidence, and the manner in which she gave that evidence, however suggested a willingness to advance the accused’s cause at the expense of her daughter. These aspects included her comments about the untidy state of her daughter’s bedroom, her discussion with the accused about finding her daughter watching pornography and her evidence that the complainant would invite the accused into her bedroom or the shed.
NJ’s evidence does not cause me to doubt her daughter’s evidence. First, her evidence does not mean that the accused could not have committed these acts. NJ was not always near the complainant’s bedroom or the shed. She was, on her own evidence, suffering a significant health condition and in a lot of pain. She would have bad nights where she needed to rest all day. Further, her evidence makes it clear that she would leave the house from time to time. The accused had the opportunity to offend in the ways described.
Even if the complainant could be seen laughing with the accused or invited him into her room or the shed as her mother asserts; these things do not mean that the complainant is lying when she says he also behaved in the manner she contends. The accused was at her home on a regular basis. He was her mother’s partner and her younger brother’s father. He was the only father figure she had. She called him dad. No doubt her feelings towards him were complex.
It was put to me that her mother’s evidence excludes the opportunity for the accused to show the complainant pornography in the manner she described. I reject this for similar reasons to those set out above in relation to the opportunity to offend. Indeed, NJ gave evidence about a conversation with the accused on the topic of him finding the complainant looking at pornography in their bedroom whilst NJ was out of the house.
Defence further submits that the complainant has been inconsistent on the topic of viewing pornography. She did not mention pornography in her first interview raising it for the first time in the second. In cross-examination at the pre-trial special hearing, the complainant agreed that there was an occasion where the accused found her looking at pornography. It is submitted that, despite what she later said in re-examination, this is a significant inconsistency. I have carefully considered the evidence at the pre-trial special hearing and the submissions. I consider that the complainant was confused in cross-examination. This topic was clarified in re-examination when the complainant said that she was in the accused’s bedroom when she looked at adult pornography and that this was the accused’s idea. She agreed she asked the accused not to tell her Mum but said he never found her looking at an adult website herself. This does not in my view amount to an inconsistency.
It was put to the complainant in cross examination that she viewed adult pornography and is simply making up these allegations against the accused based on that pornography. She denied this. I reject it as a reasonable possibility. Her descriptions of the sensations, taste and emotions she experienced were compelling and not something that would be apparent from a viewing of adult pornography.
Defence have also referred to two prior inconsistent statements. The first relates to what the complainant said to Brevet Sergeant Delaney that the accused had not put anything inside of her. That is inconsistent with her evidence and the allegation of penetration. However, this was not part of a formal interview with the prescribed interviewers. Brevet Sergeant Delaney attended at the complainant’s home shortly after these allegations came to light. The accused had just been removed from the house. It is clear from the evidence that the complainant was concerned about that fact. In the same conversation, prior to making that comment, the complainant confirmed the allegations of touching were true but said she did not want to report it. In all the circumstances that inconsistency does not give rise to any doubt about the complainant’s honesty and reliability.
The other inconsistency relied upon by defence is the conversation had allegedly between the complainant and the accused’s mother. That statement was not specifically put to the complainant at the pre-trial special hearing. She was asked about the conversation in general terms. She was specifically asked about an occasion in which her brother asked his nanna, in her presence, whether Dad had hurt his sister. The complainant did not recall that occasion and did not recall the accused’s mother saying ‘No, he didn’t. He’s innocent’. The statement the complainant is alleged to have made agreeing with that proposition was not put to her. Accordingly, I do not know what she would have said, if anything, in response. Further, the evidence of the accused’s mother CMT does not say anything about the tone of any statement made by the complainant and provides only cursory information about the context of the statement. Indeed, in some respects the statement is equivocal in its terms. An agreement that the accused didn’t hurt the complainant does not necessarily negate the allegations in this matter. CMT’s evidence makes it clear that the complainant was in a difficult position. Police were investigating allegations made by her against the accused in circumstances where the evidence of Detective Delaney, SF and AH indicates she was ambivalent about reporting them. The complainant was in his mother’s home. Her brother was asking questions and CMT was defending her son. CMT’s evidence on this topic does not cause me to doubt the complainant’s evidence.
Conclusion
I accept that the complainant was unable to give evidence as to when the offending started, for how long it continued, how often it continued, how it started or when it ended. Moreover, her evidence lacked specificity as to how many times the various incidents are alleged to have occurred, how frequently, at what time of day, whether they occurred on school days or during school holidays. Nonetheless, I found her to be a compelling, cogent, and credible witness. Her account was lacking in detail, but this is hardly surprising as she is now 13 and was only 11 at the time of her first interview explaining events that occurred when she was aged between 7 and 11. There was no implausibility about her account, nor was the inconsistency I find established on the evidence of such moment that it causes me to doubt her evidence. Indeed, over the two interviews and, in her evidence in court, there was no significant change or inconsistency in her evidence.

The complainant gave a very matter of fact account on each occasion she was spoken to. She gave her account in terms that one would expect to hear from a child of 11 or 12 years of age. She used her own words and described her perceptions and observations. She provided a description of what the accused’s penis looked and felt like when she touched it with her hands. Although she could not recall how many times she had touched the accused’s penis, her description was compelling and accurate. She described her feelings about the accused and what he did to her in age-appropriate terms. She described him as being pretty fat and of kicking him in his ‘fat stomach’ or slapping his hand. She said that ever since these incidents she wanted to kick the accused. She became agitated in the interview when she considered the prospect of a new stepdad doing the same thing as the accused had done to her. She said she would kick any new stepdad up the balls and punch him to the face. The expressions she used were suggestive of a child who had felt powerless in the situation she was in. It had the ring of truth. The evidence the complainant gave about her concern about injury being caused to her vagina, her fears of becoming pregnant were likewise credible concerns to be expressed by a young girl of her age.
A particularly compelling aspect of the complainant’s evidence was her description of what it felt like when the accused ejaculated onto her breasts or vagina. She was able to describe what the accused did in the lead up to ejaculating. Her description of ejaculate feeling wet and weird, being “very very disgusting” and tasting sour were convincing descriptions highly suggestive of a child who had actually experienced these acts. She also gave a compelling account about telling the accused that she didn’t like it when ‘cum” went into her mouth and his response to her concern. I note also that, whilst she did not give any specific evidence about multiple occasions when this occurred, her evidence was congruent with ejaculation occurring on more than one occasion in the shed and in her mother’s bedroom. The detail that she gave about the accused using rags to clean up in the shed and clothes when in the bedroom was compelling.
Finally, the complaint evidence demonstrates consistency of conduct on the part of the complainant. The complainant and her two school friends gave evidence in different terms about what the complainant said. SF said that the complainant said her dad had raped her. AH said that the complainant said her stepdad had been sleeping with her. The complainant says she said, ‘Dad was having sex with me’. I do not regard these differences as significant. Each is describing in their own words what was said. The words used are all consistent with the complainant’s allegations. The complainant made her first disclosure to her two friends following an incident at school and her complaint was consistent with the matters that she has given evidence about.
Whilst it is not possible to be precise about the number of acts he committed or how often I am satisfied that the accused engaged in two or more unlawful sexual acts with the complainant during the relationship I have found proven.
I am suspicious but not satisfied, that any unlawful acts took place in the complainant’s bedroom. The evidence given about the complainant’s bedroom related to one occasion of an invitation for the complainant to perform fellatio and an indication that the accused wanted to put his penis in her vagina. It seems from her evidence that neither act occurred due to the interruption of the complainant’s brother.
I am satisfied that at least four sexual acts occurred in the shed including the accused inserting his penis into her vagina; inserting his penis into her anus; requiring the complainant to fellate him and the accused ejaculating on the complainant. I am further satisfied that there were at least 4 sexual acts in NJ’s bedroom where the accused required the complainant to fellate him and to watch pornography and where he touched her buttocks and inserted his finger or fingers into her vagina. Whilst I am not required to be satisfied of the particulars of each sexual act as I would be if it were charged as a separate offence, I am satisfied that the acts of penetration and fellatio that I find proven would constitute the offences of unlawful sexual intercourse; the touching of the buttocks would constitute an indecent assault and ejaculating on the complainant and showing her pornography would constitute gross indecency.