R v PEACOCK
[2023] SADC 117
•29 August 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PEACOCK
Criminal Trial by Judge Alone
[2023] SADC 117
Reasons for the Verdicts of her Honour Judge Kudelka
29 August 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The accused is charged with maintaining an unlawful relationship with a child (count 1) and, in the alternative, unlawful sexual intercourse (count 2). The accused met the complainant online. The accused was 41 years old; the complainant was 16.
Verdicts: Not guilty of count 1; Guilty of count 2.
R v W, GC (2006) 96 SASR 301; WGC v R (2007) 241 ALR 199; R v Douglas [1985] VR 721; R v Mann (2020) 135 SASR 457, considered.
R v PEACOCK
[2023] SADC 117
The accused is charged with maintaining an unlawful sexual relationship with a child (count 1)[1] and, in the alternative, unlawful sexual intercourse (count 2).[2]
[1] Section 50(1) of the Criminal Law Consolidation Act 1935.
[2] Section 49(3) of the Criminal Law Consolidation Act 1935.
In relation to count 1, it is alleged that between 1 November 2019 and 19 August 2020, the accused maintained an unlawful sexual relationship with the complainant, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) inserting his penis into her vagina on more than one occasion;
(b)causing her to perform an act of fellatio upon him on more than one occasion;
(c) performing an act of cunnilingus upon her on more than one occasion;
(d) touching her naked body on more than one occasion.
The prosecution withdrew any reliance upon (d) after the close of the evidence and so I ordered that (d) be struck out.[3]
[3] T659.
In the alternative to count 1, it is alleged by count 2 that the accused had sexual intercourse with the complainant, a person under the age of 17 years, between 8 April 2020 and 11 April 2020 by inserting his penis into her vagina.
The accused elected for trial by judge alone.
At trial, the prosecution called the complainant, two police officers and the accused’s former partner, Ms Melanie Sonnex.
The accused gave and called evidence in his defence. He called his daughter and his former landlord, Ms Bernadette Ansell.
Elements of the s 50 offence
An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. The offence has four elements:
(1)The accused knowingly maintained a relationship with the complainant in the relevant period.
(2)The accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship.
(3) The complainant was a child during the relationship.
(4)The accused was an adult during the relationship.
The prosecution must prove each element of the offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly, or even probably guilty.
There was no dispute regarding the third and fourth elements. The complainant was aged 16 between 1 November 2019 and 19 August 2020. She turned 17 on 19 August 2020. The accused was aged 40 - 41 during that period.
Regarding the first and second elements, on the prosecution case, the relationship existed from about November 2019 until the complainant’s 17th birthday in August 2020. The accused knowingly maintained a relationship with the complainant during that period. They regularly had sexual intercourse during the relationship from when they first met until the complainant’s 17th birthday.
On the defence case, the accused and the complainant did not know each other until early 2020 when they met via Snapchat. They first met in person on 21 March 2020 when sexual acts as described in (a), (b) and (c) of count 1 were committed by the accused at his home. They next met on 9 April 2020 at the accused’s home. The accused admitted the complainant stayed overnight and he had penile/vaginal sexual intercourse with the complainant the next morning. After that, the accused and complainant continued to have some contact, but there were no further sexual acts. Regarding the sexual acts on 21 March and 10 April 2020, the defence case is that the accused believed on reasonable grounds that the complainant was of or above the age of 17 years.
The issues at trial were (1) the period and nature of the relationship between the complainant and the accused, (2) whether there were sexual acts committed by the accused on occasions in addition to the admitted occasions of 21 March and 10 April 2020 and (3) whether, in relation to any proven sexual acts, the accused believed on reasonable grounds that the complainant was of or above the age of 17 years.
The accused has no onus of proof regarding the elements of the offence. He does have an onus in proving his defence to the charge, as discussed below.
Elements of the alternative offence (count 2)
In the alternative, the prosecution case is that the accused committed count 2 on 10 April 2020.
There was no issue regarding proof of the two elements of unlawful sexual intercourse for the purpose of count 2. The accused admitted that he had penile/vaginal sexual intercourse with the complainant on 10 April 2020 when the complainant was under the age of 17 years. The issue at trial was whether the accused believed on reasonable grounds that the complainant was of or above the age of 17 years.
The defence under s 49(4) of the CLCA
For count 1, the three types of unlawful sexual acts alleged in (a), (b) and (c) would constitute the sexual offence of unlawful sexual intercourse.
Relevantly, s 49(4) provides a defence to the offence of unlawful sexual intercourse as follows:
(3) A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.
(4) It shall be a defence to a charge under subsection (3) to prove that—
(a) the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and
(b) the accused—
(i)was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or
(ii)believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years.
For the three types of unlawful sexual acts alleged for count 1 and the unlawful sexual intercourse for count 2, the accused relied upon the defence set out in s 49(4)(b)(ii). On the defence case, the complainant was 16 years at the time of his sexual acts and he believed on reasonable grounds that she was of or above the age of 17 years.
The onus is upon the accused to prove the defence on the balance of probabilities.[4]
[4] R v W, GC (2006) 96 SASR 301; WGC v R (2007) 241 ALR 199; R v Douglas [1985] VR 721.
The evidence
When the complainant and accused met via Snapchat, the complainant was 16, living in the northern suburbs and in year 9 at school. The accused was living in a rental property to the south of Adelaide. He had four children from his relationship with his former partner (Ms Sonnex) which ended in about 2016. The children were aged 13 to 17 during the relevant period in 2019 and 2020.
Initial contact
There was no dispute that the complainant and the accused met via Snapchat. The timing of the initial contact was in dispute.
The complainant’s evidence
The complainant gave evidence that she first had contact with the accused in around November 2019 when he requested to follow her on Snapchat.[5]
[5] T133 – 134.
During their first Snapchat call, the accused said he was 20. Another male, Mr CB, was present with the accused during part of the call. He was a friend of one of the accused’s sons. When the accused said he was 20, he got called out by Mr CB who said that the accused was 40.
In that conversation and subsequent Snapchat/telephone communications before they met, the complainant found out that the accused lived south of the city and had children. They found out the basics about each other. She told him that she was 16, was in year 9 and lived with her mum, stepdad and grandparents. She told him that she was having family issues. He said she was welcome to come down and hang out with him.[6]
[6] T62.
When she told him her age, he said something like ‘as long as you don’t say anything, it’s fine’.[7] She described the first conversation as friendly but ended up getting ‘a bit sexual’.[8] Their subsequent conversations were just between the two of them.
[7] T63.
[8] T61.
She accepted his friend request on Instagram a bit later in their relationship which may have been before or after she met him in person. Her profile on Instagram included her actual age of 16. They also communicated using Facebook Messenger. Her profile listed her actual age of 16.[9]
The accused’s evidence
[9] T66.
The accused gave evidence that he did not start communicating with the complainant via Snapchat until the beginning of 2020.[10]
[10] T381, 432.
He believed their first contact was via a video call rather than an audio call because the complainant was ‘very sexual’.[11] She told him that she was 18.[12] She sent a video of herself masturbating or he may have seen that live. One of his son’s friends (Mr CB, aged 14 or 15) was on that call because ‘we were just having a yarn and she just rang up and we were just having a laugh’[13] but Mr CB was in and out during the conversation and was not there for the sexualised part.
[11] T438.
[12] T381, 444 – 5.
[13] T440.
He told the complainant that he was 20 and ‘she died laughing’[14], saying he did not sound like he was 20. The complainant called him out, not Mr CB, and he admitted that he was 40. He told her that he was 20 because he was ‘just being funny. I was drunk. Thought it was funny’.[15] He was possibly trying to make himself sound younger because he was speaking to a younger person. Other than her age, he could not recall what else she said about herself during that call.
[14] T441.
[15] T443.
He agreed that he turned 41 on 12 November 2019 but that did not mean the call was before then because he still tells people that he is 40, even though it is years on, so it is just a general age that he gives.[16]
[16] T442.
The first meeting
There is no dispute that the complainant and the accused first met when the complainant visited the accused’s home. The date and some of the circumstances of the meeting were disputed.
The complainant’s evidence
The complainant gave evidence that she first met the accused in person at his home a few weeks after she first texted him, either late November or early December 2019.[17]
[17] T85, 138.
She was to catch a bus to the train station, then catch the train to the city and then another train south. The accused’s landlord, Ms Ansell, worked south of the city and was to give the complainant a lift from the train station to the accused’s home. By the time of their first meeting, the accused and the complainant had talked about cannabis, alcohol and ‘sexual stuff’.[18] There had been ‘a fair amount of dirty talking’.[19] She went to visit the accused to have some fun, to have someone to talk to for once and she expected they would have sex.[20]
[18] T68.
[19] T68.
[20] T68.
She was picked up by Ms Ansell who drove her to the accused’s home. She did not tell Ms Ansell her age.[21]
[21] T140.
The accused was with two of his sons and one of their friends. She and the accused had a few drinks, a few bongs and then drove to the beach with the boys and the dogs.[22]
[22] T80.
When they got back to the accused’s place, they drank some more alcohol, had a few more bongs and sat talking with the boys for hours. She believed she talked about herself, including that she was struggling at school.[23] She found out the ages of the accused’s two sons. She knew what school they went to, but did not think they talked about what year they were in.
[23] T82.
When the boys went to their room, the complainant and the accused went to his bedroom. They had sexual intercourse which included penile/vaginal intercourse, fellatio and cunnilingus. She stayed the night in his room.
In the morning, they all had breakfast, then she got a lift back to the train station with Ms Ansell.
The accused made a ‘consent’ video of her in the bedroom (Exhibit P3) on the third or fourth visit, not the first visit. By the time of the video, they had already had sex on prior visits. This time the accused ‘wanted some evidence’ so he got his phone out and started recording.[24] She said ‘no’ on the video because she thought the accused was going to record the whole thing.[25]
The accused’s evidence
[24] T93.
[25] T94.
The accused gave evidence that he did not meet the complainant in person until 21 March 2020. He picked her up from the train station with his son who met the complainant on the platform. The accused referred to the text messages (Exhibit P7) to support his evidence. They drove to his home. He went for a drive with the complainant to show her some of the sights and they could have taken the dogs out with them.
Once back at his place they drank alcohol. His two boys were also there. The complainant said that she was 18.[26]
[26] T388.
They went to his bedroom that evening and he made a ‘consent’ video of the complainant (Exhibit P3)[27] because he had ‘heard some bad stories’ and was protecting himself from ‘any repercussions at all coming back’.[28] They had sex, she stayed overnight and the next day he took her back to the train station.
[27] Exhibit P3.
[28] T388.
Subsequent meetings
The complainant gave evidence that she would generally go and visit the accused at his place every week or two, staying over on Friday night and leaving on Saturday. The accused’s landlord generally picked her up, but there were a few times when the accused picked her up from the train and drove her to his house.
They would always drink alcohol, smoke cannabis and go for a drive with the dogs. His children would be there in various combinations.
On every occasion, she had sexual intercourse which included penile/vaginal intercourse, fellatio and cunnilingus.[29]
[29] T88.
She met the accused’s daughter on the third or fourth visit which is when she found out that his daughter was 16. She told his daughter that she was 16 as well.
The complainant and the accused spoke about her age being the same as his daughter’s age, ‘but it was never said that it was weird or wrong or anything like that, on his behalf’.[30] The accused acknowledged that the complainant and his daughter were the same age. The accused was present but did not say anything when his daughter was upset about the complainant being the same age and the complainant was trying to comfort her.[31] The accused’s daughter ‘really didn’t like – not that her dad was doing it but that he could get in trouble for it, so she was very upset about that and I had a chat to her about it, trying to comfort her, and then it went back to normal after that, just socialising’.[32] She also had conversations with the accused about his difficulties with his children and she tried to give advice from her point of view.[33]
[30] T89.
[31] T91.
[32] T88.
[33] T89.
9 and 10 April 2020
There was no dispute that on 9 April 2020, the complainant went to the accused’s place with her friend, Ms SN, and stayed overnight.
The complainant’s evidence was that she had been to the accused’s home on multiple occasions before 9 April 2020. The accused’s evidence was that 9 April 2020 was the second occasion that the complainant visited his house.
The complainant’s evidence
The complainant gave evidence that in March or April 2020, she met a 16 year old girl, Ms SN. The complainant stayed at Ms SN’s house for a few days in the southern suburbs, ‘just to hang out for a few days until we got bored’[34] and then decided to go and see the accused. She called the accused and asked if they could come down and stay the night. He said that was fine.[35] She told him that Ms SN was also 16. They caught a bus to meet the accused who then drove them to his house.
[34] T96.
[35] T97.
Text messages between the complainant and the accused on 9 April 2020 show that the accused picked up the complainant soon after 3.16pm.[36]
[36] Exhibit P7, pages 22 – 27.
The complainant gave evidence that when they arrived at the accused’s house, the accused’s two sons were there, and it turned out they and Ms SN had mutual friends.
They drank alcohol and smoked cannabis. The two boys were smoking but the complainant was not sure if they were drinking alcohol. They all went in the car with the dogs and when they arrived back to the accused’s house, it was almost night-time. They drank more alcohol and smoked more cannabis.
The complainant drank too much and was sick. The accused got her a pillow and she lay on the floor in his bedroom, passing in and out. She heard the accused and Ms SN come into the room. She heard them having sex on the bed. Later, when she woke up, they were both asleep. The complainant got into the bed with them and slept for a bit.
When she woke up in the morning, the three of them had sex together.[37] The complainant performed fellatio on the accused and they had penile/vaginal sexual intercourse.
[37] T100.
The complainant took a photo and videos during her visit for no purpose; it was ‘just in general’.[38] She took a photograph of the accused driving with others in the car, three videos of people in the car and three videos of the complainant, Ms SN and the accused in bed. The complainant gave evidence the accused said, ‘look how big my penis is’ and ‘record it’, so she did.[39]
[38] Exhibits P4 and P5; T107.
[39] T108.
After the sexual activity, they all went out to the kitchen and the accused made breakfast for everyone. The accused then drove the complainant and Ms SN back to Ms SN’s house.
The accused’s evidence
The second time he saw the complainant was on 9 April 2020. The complainant called him about four or five times asking to be picked up. She said she wanted to come and have a drink and bring a friend. He was not really in the mood to do so but it got the better of him so he did go and pick her up.[40] He drove them back to his place. Ms SN said she was a week off her 18th birthday.[41] He thinks his two boys were there that evening. He drank alcohol with the complainant and Ms SN. At some stage later he was in bed together with both the complainant and Ms SN. He had vaginal sexual intercourse with the complainant. He could not remember if there was any other type of intercourse.[42] The next morning he drove the complainant and Ms SN back to Ms SN’s place.
[40] T395.
[41] T396.
[42] T396, 489.
The accused collects complainant from SN’s house
There was no dispute that during the early evening of 10 April 2020, the complainant called the accused and asked him to collect her from Ms SN’s house. When the accused arrived at Ms SN’s house, the complainant got into his car. Someone came out of the house with a cricket bat. The accused drove away with the complainant. Text messages from the complainant to the accused support those events occurring around 6.30pm.[43]
The complainant’s evidence
[43] Exhibit P7, pages 27 - 28.
The complainant gave evidence that after the accused dropped her and Ms SN at Ms SN’s place, she ‘hung out’ with Ms SN who then invited some of her friends over. After a while, Ms SN went ‘a bit quiet’ which she thought was ‘a bit weird’ then Ms SN and her friends went down the road without her. When they returned, she was told to get out of the house. The complainant called the accused to pick her up because ‘he’s the only person I knew that could pick me up or that I was friends with at the time’.[44]
[44] T110.
When the accused arrived, he was with his daughter and his daughter’s friend. The complainant got into the car and his daughter got out to talk to the girls out the front. It was then that Ms SN’s father’s ‘mate came out the front with a cricket bat and started hitting the car’.[45] The accused’s daughter had to run and get in the car ‘because the guy was just going crazy at the car’.[46] They drove away.
[45] T111.
[46] T111.
The complainant was confused about why she was getting kicked out and also in shock because of what happened with the cricket bat. In the car they were ‘talking about the situation but I can’t remember exactly what was mentioned but we definitely talked about what was happening’.[47]
[47] T111.
When they got back to the house, they drank alcohol and had cannabis, ‘we were just hanging out for the night’.[48]
[48] T112.
The complainant gave evidence the accused said, ‘if I don’t say anything to the police he’ll look after me, so, I stayed quiet’.[49]
The accused’s evidence
[49] T112.
The accused gave evidence that the complainant called him and said she had fallen out with Ms SN and wanted to be picked up. He and his daughter drove to pick her up.[50] When he arrived, a man came out of the house with a cricket bat and hit the car with it once. The accused drove off. He guessed they would have spoken about it as they were driving back to his place but could not remember what was said.[51]
The accused’s daughter’s evidence
[50] T397.
[51] T493 – 5.
The accused’s daughter gave evidence that she first met the complainant when she went with the accused to pick the complainant up from Ms SN’s house. When they arrived, ‘some guy came out with a bat or something and started hitting the car’.[52] When they got back to her father’s place, the three of them had ‘a couple of drinks’.[53]
[52] T560.
[53] T560.
She thought the complainant was aged 18 to 20 because of the way she looked. When they were back at her father’s house, the complainant said she was 17, nearly 18.[54] Her father could have been there at the table then, but she was not sure.
[54] T562.
The accused’s former partner visits the accused’s house on 10 April 2020
There was no dispute that the accused’s former partner, Ms Sonnex, arrived at the accused’s house during the evening of 10 April 2020 and shouted at him from outside the front of the house.
On the prosecution case, Ms Sonnex’s behaviour was relevant to the accused’s belief about the complainant’s age. Ms Sonnex made it plain to the accused that the complainant was under-age. From that point on, he could not have any reasonable belief that she was 17 years old or above.
On the defence case, Ms Sonnex did not make herself plain about that but in any event, there were no sexual acts with the complainant after 10 April 2020.
Ms Sonnex’s evidence
Ms Sonnex gave evidence that she went around to the accused’s home on 10 April 2020 because she had seen her daughter’s Snapchat story which included a video of the accused in the car with her daughter and possibly the complainant. The accused was drinking in that video and drugs were mentioned.[55] Ms Sonnex decided to go to the accused’s house to collect her daughter. When she arrived, she stood outside the front of his house and yelled and screamed at the accused. One of the things she yelled at him was that he was a paedophile. When she went back home, she sent him texts (between 11.21pm and 11.39pm) which are set out in Exhibit P19[56] as follows:
11.21.24pm Makes me sick…You say that I am jealous Imfao I could do that literally any day of the week without the help from my children lol but I don’t cos it’s no right
11.21.25pmI feel extremely sorry for [name of landlord] and I hope one day she comes to her sense. You will get caught & locked up for it Tom
11.39.24pmThe little girl you have there tonight is only 16 & look at her too It’s sad how you always gotta pretty on the ones that have to be down on them self’s already, that’s really messed up Tom
The accused’s evidence
[55] T300.
[56] Exhibit P19, page 13.
After the incident at Ms SN’s house he was ‘a bit shaken’, drank a lot and became very affected by alcohol. [57] Ms Sonnex turned up at the house in the late evening, yelling and screaming out the front. He went outside and stood on the verandah hiding in the shadows because he did not want to engage with her.[58] She was ‘just out there rambling about me having sex with people’.[59] He gave evidence that anytime he was involved with another woman, she would get very jealous. When she was at his house, he did not recall her saying anything like what was later in her text messages: ‘I just ignore her because she has spoken so much and its just [Ms Sonnex], you know’.[60]
[57] T398.
[58] T399.
[59] T401.
[60] T401.
After Ms Sonnex left, the accused went to bed. It was late, he was tired and he did not have any sexual contact with the complainant.[61]
[61] T403.
Arrest of the accused in relation to Ms SN – 11 April 2020
The accused was arrested at 12.48am on 11 April 2020 at his house in relation to allegations made by Ms SN.
The complainant’s evidence
The complainant gave evidence that she and the accused had just got into bed when there was a knock on the door. She did not know who it was, but she ‘knew it wasn’t good when he said for her to run’.[62] She ran to the back room where the accused’s daughter slept.
[62] T112.
The police came into the house and found her in that back room. She told the police that she and the accused never had a sexual relationship. She gave evidence that she lied because the accused ‘told her to keep quiet and he was my friend, so I kept quiet’.[63]
[63] T154 – 155.
After the police left with the accused, the complainant stayed at the house with the accused’s daughter.[64]
The accused’s evidence
[64] T113.
The accused gave evidence that he woke up to the police knocking on his door. He thinks he had been asleep for a couple of hours and was still affected by alcohol. The complainant was not in bed with him; he did not know where she was.
When the accused was at his front door, the police asked, ‘So is it just you and your daughter here?’. The accused told them that it was. The accused gave evidence that he said that to the police because he was in shock, drunk, disorientated and had forgotten that the complainant was there.[65]
[65] T404 – 5, 509.
He also told the police that his daughter was 16 or 17 because he was drunk and does not always know the ages of his four children off the top of his head.[66]
The accused’s daughter’s evidence
[66] T512.
The accused’s daughter gave evidence that she went to bed before her father and the complainant. When she woke up that night, the complainant was next to her in bed, under the covers.[67] Before she went to bed that night there was no discussion about where the complainant was going to be sleeping.[68]
[67] T564-565.
[68] T567.
The complainant did not get out of bed when the police were knocking on the door. Her father answered the door.
When the police came into her bedroom, the complainant was still in bed, but ‘she hopped up when the cops were there’.[69] The complainant was dressed. She told the police she was 16.[70]
[69] T566.
[70] T572.
After the arrest of the accused
The accused was arrested for allegations made by Ms SN on 11 April 2020 and in custody until 30 April 2020 when he was released on bail. The last of the hearings in the Magistrates Court was the answer charge date on 3 December 2020.[71]
[71] T224.
The complainant gave evidence that her sexual relationship with the accused continued after he was released on bail until early 2021. The accused gave evidence that there was no sexual relationship after his release on bail.
The complainant’s evidence
The complainant gave evidence that the police took the accused’s phone so the accused’s children kept her updated. She eventually had contact with the accused again on a different number via text messages. She went to his place again and it was ‘the same stuff as was happening before’[72], namely, ‘both of us being sexual together and him just being a bit more cautious because he knew the police knew about what was happening’.[73] The accused told her to ‘watch what I say on text messages and stuff so he wouldn’t get in trouble’.[74]
[72] T113.
[73] T114.
[74] T114.
The accused started to give her some money: ‘so after he said he’d look after me, every time that I was low on money or needed something I’d ask him and then he’d send me the money and that was his way of looking out for me I’m guessing’.[75] He gave her money on multiple occasions. Screen shots were tendered of the transaction payments made by the accused. They occurred from 2 June 2020 to 2 April 2021[76] for amounts of $10 up to $100.[77] She gave evidence that the $25 transfers ‘would have been for weed’[78] but apart from that it was ‘just if I needed any money’.[79]
The accused’s evidence
[75] T114.
[76] Exhibit P6.
[77] Exhibit P6.
[78] T115.
[79] T115.
The accused gave evidence that when released, he got a new phone and at some stage had communications with the complainant. By that stage, he believed she was 16 because he had been told by his daughter that on the night of his arrest the police spoke to the complainant and she said she was 16.[80] He got back in contact with the complainant because he wanted her to be a witness in the trial of Ms SN’s allegations. The complainant randomly asked him one day for $10 and he agreed. He then gave her money when she asked for it, expecting she would repay it.
[80] T408.
The complainant continued to visit his place maybe two or three times in 2020. On one or two occasions she was with her boyfriend. She liked to visit the children as well. There was no sexual intercourse on those occasions.
The complainant’s 17th birthday – August 2020
The complainant gave evidence that a month or two after she turned 17, she stopped her weekly or fortnightly visits to the accused ‘because mainly he wasn’t interested in me sexually anymore, once I turned 17’.[81] He said, ‘now that you’ve turned 17, I don’t want you anymore’.[82] She stopped going down there as regularly.
[81] T85-86.
[82] T86.
Statutory declaration – 16 December 2020
There was no dispute that the accused was with the complainant when she signed a statutory declaration on 16 December 2020 about the occasion when Ms SN was at the accused’s home on 9 and 10 April 2020.
The complainant’s evidence
The complainant gave evidence that after the accused’s first or second court date for the charges brought by Ms SN, the accused wanted her to write out a statement for him. He picked her up from her house where he had never been before and drove up north towards Modbury. They stopped in a bushy area where there were not any houses.[83] The accused told her what to write, she wrote it all down for him and they proof checked it. They went to the chemist with identification to get it verified. She described the content of the statutory declaration as being ‘brief over everything so it wasn’t lying but it wasn’t going into detail at all’.[84] After she signed the statutory declaration, she continued to see the accused and have sexual intercourse with him.
The accused’s evidence
[83] T116.
[84] T117.
The accused gave evidence that he wanted to put the complainant in touch with his lawyer, but his lawyer did not take a statement from her. One of his lawyers then suggested that he get something in writing from her. They went for a drive in the hills around the Salisbury area and prepared the statutory declaration. He asked her to write down what she wanted to say ‘and she obviously didn’t know what to write so I helped with wording and just sort of got some of the basics down’.[85] They were sitting in his car and he was watching her write it. They went to the chemist and she signed it in the presence of the chemist.[86]
[85] T411.
[86] T414.
End of sexual relationship – January 2021
The complainant gave evidence that she met her new boyfriend through the accused in January 2021. The accused worked with her new boyfriend. She did not have sexual intercourse with the accused after that. The last time they had sexual intercourse was a few days before she got together with her new boyfriend.
End of relationship – May 2021
There was no dispute that the contact between the complainant and the accused ended in April or May 2021. The complainant was house-sitting the accused’s house whilst he went to Bathurst with two of his children and the complainant’s boyfriend. The complainant blocked the accused from any social media or text contact following an incident involving his sons and cannabis plants growing at his house.[87]
[87] T290.
Discreditable conduct
The prosecution evidence included evidence that the accused engaged in discreditable conduct. That conduct included his supply of cannabis and alcohol to children and sexual contact with Ms SN (who was under-age). I have not used that evidence to suggest or reason that the accused is more likely to have committed the offence/s because he engaged in that discreditable conduct. The evidence was only admissible because it was part of the circumstances of his contact with the complainant. I have only used the evidence for that purpose.
The prosecution also led evidence from Ms Sonnex about what she said on 10 April 2020 at the accused’s house and the texts that she sent. Her opinion about the accused and his involvement with underage girls is not relevant or admissible to prove the truth of what she asserted. I have not used that evidence to suggest or reason that the accused is more likely to have committed the offence/s because she made allegations about him which would amount to discreditable conduct on his part. The evidence was only admissible to prove the accused’s state of mind about the age of the complainant from 10 April 2020 onwards. Because I have found that the accused and complainant did not have sexual intercourse after that date, I have not made use of that evidence.
The texts sent by the accused to his friend on 10 April 2020 (Exhibit 24) do not show him in a good light. As Mr Vadasz submitted, this is not a court of morals. The evidence was not admissible to blacken the accused’s character. I have not used that evidence to suggest or reason that the accused is more likely to have committed the offence/s because of those texts. I have only used those texts as discussed in these reasons. They are relevant to proving the accused’s state of mind and the nature of his contact with the complainant after 10 April 2020.
Discussion
I did not find the complainant to be a wholly credible or reliable witness. She endeavoured to present herself in the witness box (particularly in evidence‑in‑chief) as a lonely 16 year old girl who had no friends in 2019/20, had difficulties at home and school and was generally down on her luck. The prosecution submitted that she turned to the online world to communicate with people and the accused became her only friend.[88] The prosecution submitted that this explains why she was very forward sexually with the accused and ready to dive headlong into a sexual relationship with a man who was much older than her.[89]
[88] T646.
[89] T646.
By the age of 16, I consider that the complainant had developed survival skills which were likely borne out of a difficult home and school life. She was street wise. In her own juvenile way, I think she knew where to find what she needed and how to get it. In early 2020, she wanted somewhere to go and was seeking alcohol, drugs and money. She offered sex to a much older man to get it. Her situation is a good example of why the law needs to protect young people from their own (sexual) immaturity.
Did the complainant tell the accused she was 16?
I am not satisfied that the complainant told the accused that she was 16 before he was arrested on 10 April 2020. I reject her evidence that (i) during their first Snapchat call, she told the accused that she was 16 and in year 9 at school;[90] (ii) her age was on her Instagram profile and Facebook Messenger profile which the accused would have seen when she accepted his friendship request or messaged him;[91] (iii) that on their first meeting, his sons were present and they talked about school and age in his presence;[92] (iv) she had discussions with the accused about his daughter and how she was the same age as the complainant;[93] and (v) she told the accused in a phone call that Ms SN was 16, ‘that they were both 16’.[94]
[90] T61.
[91] T64, 66.
[92] T82.
[93] T89.
[94] T97 – 98.
I agree with the submission made by Mr Vadasz that in light of the complainant’s explanation to the court that she did not have friends and places to go, it is improbable that she told the accused at the outset that she was 16.[95] She had possibly found in the accused what she needed, that is, a place to go, alcohol, food, drugs and attention. As Mr Vadasz submitted, the best way to put the accused off meeting her and risk not getting what she needed was to declare that she was under‑age. Instead, she presented herself during the initial conversations with the accused as someone who was very sexual. On the day before she met the accused, she sent him a text that said ‘Coz I wanna fuck’.[96] In another text, she said that if he could ‘shout us some bud’, she would catch the first train in the morning.[97] When she was on her way on the train, she sent the accused a text saying ‘I want u to fuck me’.[98]
[95] T690.
[96] Exhibit P7, page 2.
[97] Exhibit P7, page 2.
[98] Exhibit P7, page 13.
In the complainant’s statutory declaration sworn on 16 December 2020 concerning the events of 9 and 10 April 2020, she stated that the accused ‘thought we were both 17 as we told him that we were. [Ms SN] also said she was a week off of being 18 years old’.[99] In explaining the inconsistency between her evidence that she told the accused she was 16 and her statutory declaration, the complainant gave evidence she lied in that statutory declaration. She gave evidence that she knew the declaration was false when she wrote it.[100] I am troubled by what I perceived as the complainant’s casual approach to the concept of telling lies in a statutory declaration, but I do not think that she was lying in that part of her declaration. It is probable that she did tell the accused on 9 April 2020 that she and Ms SN were both 17.
[99] Exhibit D13.
[100] T188.
The complainant gave evidence that she did not tell Ms Ansell (the accused’s landlord) her age.[101] Ms Ansell gave evidence that she gave the complainant a lift from the train station to the accused’s home on one occasion and that the complainant talked about having lots of past boyfriends. The way the complainant was talking prompted Ms Ansell to ask the complainant how old she was. The complainant said she was 18.[102] I accept Ms Ansell’s evidence on that topic. I do not consider that Ms Ansell was fabricating her evidence to help the accused. She agreed in cross‑examination that she did not end up giving a statement to the police but explained that was because the police did not follow up with her and she disengaged out of frustration.[103]
[101] T140.
[102] T626.
[103] T632.
In her text on 10 April 2020, Ms Sonnex (the accused’s former partner) told the accused that ‘the little girl you have there tonight is only 16’, which was correct. Ms Sonnex gave evidence that she thought her boys knew the complainant’s age was 16 and told her daughter who told Ms Sonnex.[104] However, her daughter gave evidence that she never told her mother that the complainant was 16.[105] There was no evidence from Ms Sonnex’s sons.
[104] T305 – 306.
[105] T573.
By 10 April 2020, Ms Sonnex had not met the complainant. Her attendance at the accused’s home on 10 April 2020 was prompted by her daughter’s Snapchat video showing the accused in the car drinking with her daughter, her daughter’s friend and, she thought, the complainant.[106] On 10 April 2020, when she screamed at the accused that he was a paedophile, she did not refer to the complainant by name[107] nor did she do so in her later texts to the accused. She agreed in cross‑examination that she probably did not meet the complainant until after the accused was arrested.[108] That was in accord with the complainant’s evidence that she did not meet Ms Sonnex in person until near the end of her relationship with the accused; she might have been shown a photograph of her before then.[109]
[106] T299.
[107] T308.
[108] T346.
[109] T75.
The evidence of Ms Sonnex’s texts to the accused on 10 April 2020 cannot prove that the complainant told the accused that she was 16 at some time prior to Ms Sonnex sending the accused that text. The evidence is only admissible to prove the accused’s state of mind about the complainant’s age after he had received and read that text. Ms Sonnex was not clear about how she came by the information which led her to say that ‘the little girl you have there tonight is only 16’. I cannot be satisfied that it was much more than a good guess. In any event, it is not evidence that the complainant told the accused that she was 16.
I find that the accused lied to the police on 11 April 2021 when he said that only he and his daughter were at home. He was being asked questions by the police in the middle of the night and I accept that he had been drinking. Nevertheless, I find that he did know that the complainant was home. I do not need to resolve the issue of whether she was in his room at the time the police knocked on the door. I am not sure where the truth lies about that issue.
The prosecution did not rely upon the accused’s lie to the police as one told by the accused out of a consciousness of guilt. It was fairly conceded that his lie might have some bearing on what happened with Ms SN. I have not reasoned that he lied at that point because he knew that the complainant was 16. I suspect he was being defensive because of what happened when he collected the complainant at Ms SN’s house that afternoon. The prosecution submitted the evidence that he lied is relevant to an assessment of his credibility. I have borne that in mind when assessing his credibility.
The accused gave evidence that during his first Snapchat call with the complainant, she told him that she was 18.[110] She said the same when they first met.[111] I do not reject his evidence and I think he is probably telling the truth about that. He gave evidence that on her second visit, the complainant said she and Ms SN were 17. I do not reject that evidence. Because the complainant and Ms SN were so keen to visit the accused on 9 April 2020 and drink and smoke with him, I consider it unlikely that they told the accused they were 16.
[110] T445.
[111] T388.
The duration and nature of the relationship
On the complainant’s evidence, her relationship with the accused commenced in about November 2019 via Snapchat and ended in April 2021. The relationship was sexual from the end of 2019 to January 2021 which is when she commenced a relationship with a man who was introduced to her by the accused.
I do not accept the complainant’s evidence that she had a sexual relationship with the accused from the end of 2019 to January 2021. In my view, she exaggerated her evidence about her relationship with the accused. It was troubling that she maintained her evidence about aspects of that relationship in the face of objective evidence to the contrary.
For example, the text messages in Exhibit P7 make it plain that the complainant and accused first met on Saturday, 21 March 2020. Despite that, the complainant insisted that she and the accused had met and had sex on prior occasions.[112]
[112] T122, 181.
The text messages show that on 21 March 2020, the complainant caught a train to meet the accused. During the train journey, they exchanged text messages.
At 6.30pm, she sent a text: ‘Send me a pic of ur car’. That text does not fit with her evidence that she had visited the accused on multiple occasions before 21 March 2020. At 6.37pm, the accused sent her a photo of his car.
The complainant sent a text checking the train station at which they were going to meet and then another text saying she thought that she was going to get lost. The accused later sent a text changing the train station and the complainant replied that she was scared he was not going to be there. The accused sent texts saying that his son was waiting for her and was wearing red shorts, describing him as ‘cute little fella on platform’.[113] The complainant’s evidence that she had already met his son by this stage[114] does not fit with the accused’s text which sought to identify his son for the complainant by way of a person wearing red shorts.
[113] Exhibit P7, page 13.
[114] T121.
After the complainant left the accused’s home the next morning, she sent a text saying ‘we should definitely make that a regular thing if we want’.[115] The complainant gave evidence that that text ‘was more about seeing him more often on the weekends’.[116] Her explanation was inconsistent with a plain reading of all the text messages on 21 and 22 March 2020 and contradicted her own evidence that they had been seeing each other every weekend or second weekend since the end of November 2019.[117]
[115] Exhibit P7, page 20; T123.
[116] T122.
[117] T85, 180.
In her closing address, the prosecutor properly conceded that it was at least a reasonable possibility that 21 March 2020 was the first time that sexual intercourse took place between the complainant and the accused.[118]
[118] T676.
In light of the text messages in Exhibit P7 and my rejection of the complainant’s evidence about them, I do not accept the complainant’s evidence that she started communicating with the accused via Snapchat in November 2019[119] and met him a few weeks later in mid to end of November[120] when she was picked up at Colonnades by Ms Ansell who then drove her to the accused’s house. Ms Ansell’s evidence, which I accept, contradicts the complainant’s evidence that she was picked up by Ms Ansell at Colonnades in November 2019.
[119] T134.
[120] T85, 138.
I accept the accused’s evidence that he first met the complainant in person on 21 March 2020 in the circumstances reflected in the text messages (Exhibit P7). I accept the accused’s evidence that they started communicating via Snapchat in early 2020.
There is no dispute that on Thursday, 9 April 2020, the complainant visited the accused’s home with Ms SN and they both stayed the night with the accused.[121] The accused gave evidence that was the second time the complainant visited his home.[122] That is consistent with the texts he sent his friend on the morning of 10 April 2020 in which he bragged about having a threesome the night before. His friend asked in those texts, ‘who were they’. The accused responded, ‘Just some random I met n fucked then ask her to bring a friend next time and she did, both only 17 omg’.[123]
[121] T123; Exhibit P7, page 23.
[122] T393, 468, 473.
[123] Exhibit D24.
However, Ms Sonnex gave evidence which, if reliable, contradicts the accused’s evidence that 9 April 2020 was the second time that the complainant visited his house.
Ms Sonnex gave evidence that she saw the complainant for the first time ‘a month or so’ before 10 April 2020. Her estimated time frame is not necessarily inconsistent with my finding that the complainant’s first visit was on 21 March 2020, but her evidence that prior to 10 April 2020 she had seen the complainant more than once in the accused’s car and at his house[124] does not fit with 9 April 2020 being the second time the complainant visited the accused’s home.
[124] T301.
Ms Sonnex gave evidence that prior to 10 April 2020, she had seen the complainant in the car a few times when the accused picked the children up from Ms Sonnex’s place.[125] Neither the accused nor the complainant gave evidence that the complainant was present when the accused collected his children from Ms Sonnex’s house on 21 March 2020. Nor did they give evidence that that occurred between 21 March 2020 and 9 April 2020.
[125] T323, 346.
I do not consider that Ms Sonnex’s evidence that she saw the complainant with the accused prior to 10 April 2020 is reliable. I do not consider that Ms Sonnex was a dishonest witness, however, it was obvious that she did not have a good memory about the events in 2020, particularly the order of them. She admitted as much.[126]
[126] T328.
I find that the complainant visited the accused’s home for the second time on 9 April 2020. It is not disputed that the accused had sexual intercourse with her on that occasion.
The accused was arrested on 11 April 2020 for allegations of rape made by Ms SN. He was granted bail on 30 April 2020.[127]
[127] T224.
On the prosecution case, the accused committed further unlawful sexual acts with the complainant after he was arrested and released on bail. The accused denied having any sexual intercourse with the complainant after his arrest.
There was no dispute that phone contact resumed between the complainant and the accused after he was released on bail.
I do not accept the complainant’s evidence that their sexual relationship resumed after the accused was released on bail with the only difference being that the accused was ‘a bit more cautious’.[128]
[128] T114.
During cross‑examination, the complainant was asked about a man called Daniel.[129] She agreed that Daniel was a prior boyfriend. It was put to her that her relationship with Daniel started very soon after her visit to the accused’s home with Ms SN on 9 April 2020. She initially disagreed.[130] She was then asked when the relationship with Daniel started. She stumbled with her answers and then agreed that she met Daniel after 9 April 2020, adding ‘and then we were together for a few months, but me and [Thommo] still had our thing and he knew about it’.[131]
[129] T168.
[130] T169.
[131] T169.
The complainant gave evidence that she thought she had broken up with Daniel by October 2020 and they were ‘just close friends after that’.[132]
[132] T169.
The complainant did not mention Daniel at all during her evidence‑in‑chief. To the contrary, she gave the impression that after the accused was released on bail, she was regularly with him at his place.
Her evidence that she had broken up with Daniel by October 2020 was proved to be incorrect by the substance and tone of text messages between the complainant and the accused after he was released on bail. Those text messages were tendered by defence during cross‑examination of the complainant, Exhibit D12.
For example, in October 2020, the complainant and the accused exchanged text messages about a litter of puppies. The complainant asked the accused to bring them north so she could see them. The accused replied that she and Daniel would ‘have to come out soon and see em’.[133] The complainant responded, ‘Can’t u know how Daniel is’.
[133] Exhibit D12, page 18.
Later in October 2020, the complainant asked the accused to help her out with money because ‘Daniels payments went down’.[134] The accused said that he did not have that kind of money but could send her a lesser amount. Even after being shown that text, the complainant gave evidence that she was ‘pretty sure’ that she had broken up with Daniel by that stage.[135] She endeavoured to explain that she was still helping Daniel out with money.[136] Not only did I consider that highly unlikely, but it was also wrong.
[134] Exhibit D12, page 20.
[135] T171.
[136] T171.
On 11 January 2021, the complainant sent a text to the accused, ‘Can I come over Daniel just dumped me and I have no where to go’.[137] Prior to being shown that text message, the complainant denied sending such a text in 2021, saying ‘I thought me and Daniel split up in December’.[138]
[137] Exhibit D18.
[138] T294.
I find that the complainant was in a relationship with Daniel from soon after April 2020 to January 2021. That finding does not preclude the existence of a sexual relationship between the complainant and the accused during that time, however, I did not find her evidence about that convincing. I thought she was deliberately evasive when asked questions about her relationship with Daniel. She contradicted herself and was contradicted by text messages about the duration of the relationship. She also persisted with her evidence that they had broken up in October 2020 in the face of texts which indicated otherwise.
I also found the complainant’s evidence lacked credibility on the topic of why the accused sent her money from June 2020 to April 2021.
She gave evidence‑in‑chief that when they returned to his house after the incident at Ms SN’s house, he said to her ‘that if I don’t say anything to the police he’ll look after me, so, I stayed quiet’.[139] She explained that ‘after he said he’d look after me, every time that I was low on money or needed something I’d ask him and then he’d send me the money and that was his way of looking out for me I’m guessing’.[140] In cross‑examination, the complainant gave evidence that ‘he knew that he was going to be in trouble for [Ms SN] so he said that to me’.[141] She had to keep quiet.[142] The prosecution tendered a bundle of payment transfers, totalling $674.[143]
[139] T112.
[140] T114.
[141] T151, 154, 166, 167
[142] T175.
[143] Exhibit P6.
In cross‑examination, the complainant agreed with the proposition that, in relation to these payments, she was telling the court ‘this is almost hush money, he’s bribing you to stay quiet’.[144]
[144] T156.
During cross‑examination, the defence tendered text messages between the complainant and the accused which gave some context to the payments.[145] The exhibit shows that on around 2 June 2020, the complainant first requested money, asking if she could borrow $10.[146] It is evident from the accused’s response, that he did not have her payment details by that stage because he asked her to send them. That scenario is not consistent with the accused offering to pay her hush money.
[145] Exhibit D12.
[146] Exhibit D12, page 1.
The complainant’s evidence that the accused was paying her to keep quiet does not sit well with the evidence that she begged him for money. It was put to her during cross‑examination that she begged the accused for money, which she denied.[147] However, on 6 June 2020, the complainant sent a text asking to borrow another $25, ‘Please, I’m begging you’.[148]
[147] T155.
[148] Exhibit P12, page 2.
Nor does the complainant’s evidence that the accused was paying her to keep quiet sit well with the complainant promising to pay him back.[149] During cross‑examination, the complainant was taken to a series of texts on 2 July 2020 in which she asked to borrow $30 to pay Daniel’s dad back. She texted ‘I promise I’ll pay u back’. The accused responded, ‘You already owe me 50’.[150] She texted, ‘I know I’ll pay u back’, ‘I promise seriously’. And then on 5 July, she asked to borrow another $30, texting ‘I’ll literally do anything to pay u back I really need money’.[151]
[149] T156.
[150] Exhibit D12, page 5.
[151] Exhibit D12, page 6.
It was put to the complainant in cross‑examination that if she was paying him back, then it is not hush money. She replied, ‘So I never actually paid him back and I knew that I said face to face, he knew I had no money’.[152] She did not answer the question. Further, if her evidence of such a face‑to‑face conversation was true, then it does not make a lot of sense that she would continue to send texts for money in terms of borrowing money or assuring him that she would pay him back.
[152] T158.
The complainant was cross‑examined about her text on 12 September 2020 asking the accused for $50 so that she could pay her dealer, adding ‘I won’t ask you for money ever again’.[153] It was put to her that that statement was inconsistent with her claim that the accused was paying her money because he promised to help her out and look after her. She replied, ‘So we had a lot of chats face to face and I lot of the times I explained that – well he knew I didn’t have a job so he knew I couldn’t pay him back and he was fine with that’.[154] Again, the complainant did not answer the question. She was asked why she never sent a text saying ‘you promised to look after me’. She replied, ‘Yes, because we said it face to face. He wasn’t going to write it on text message, that’s just evidence that he knew would be used against him'.[155]
[153] T165.
[154] T165.
[155] T166.
I formed the impression that the complainant was making her evidence up as she went along to try and fit the text messages that were put to her. Her answers were evasive and circular.
I think the complainant was asking and begging for money because she knew the accused was likely to pay her. She lied to the police on 11 April when she said she had never had a sexual relationship with the accused[156] and knew the accused would want her to maintain that lie. She also knew that she was a material witness to the rape allegations made by Ms SN and the accused needed her help to defend himself.
[156] T154 – 155.
I found the complainant’s evidence that the accused told her after her 17th birthday that he did not want her anymore[157] to be a self‑serving embellishment of her story. It did not ring true nor fit with the tone and substance of the text messages after her 17th birthday as set out in Exhibit P12.
[157] T85.
The accused gave evidence that he did not want any sexual contact with the complainant after his arrest when he found out she was 16.[158] He did not want to be with her ‘because she was 16 and had already caused me a world of hurt’.[159] He was asked in cross‑examination whether he told the complainant that he was angry and horrified that she was 16. He answered, ‘I felt I needed to tread on eggshells somewhat…because she was a kid and I needed her help and I didn’t want to alienate her in any way’.[160] Although the accused only had himself to blame for the situation in which he found himself, I found his responses to those questions to be reasonable and consistent with the tone and content of the text messages.
[158] T525.
[159] T525 – 526.
[160] T526.
I am not satisfied that the accused continued to have sexual intercourse with the complainant after he was arrested on 11 April 2020. I am not prepared to rely upon the complainant’s evidence about that.
I am satisfied beyond reasonable doubt that the accused engaged in unlawful sexual acts with the complainant on 21 March 2020 and 10 April 2020. It has not been proved that there were any other occasions when the accused engaged in unlawful sexual acts with the complainant.
Count 1
I will consider each of the elements of the offence:
First element
The prosecution must prove that the accused knowingly maintained a relationship with the complainant in the relevant period.
The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.[161] The period charged is between 1 November 2019 and 19 August 2020 (which is when the complainant turned 17). I am not satisfied that there were any unlawful sexual acts after 10 April 2020. I am not satisfied that an unlawful sexual relationship existed after 10 April 2020.
[161] Section 50(5) of the CLCA.
Did the accused knowingly maintain a relationship with the complainant up to and including 10 April 2020?
Whether or not there was a relationship is a question of fact.[162] There needs to be more to the relationship than the alleged unlawful sexual acts, but the evidence of those acts is not excluded from the consideration of whether a relationship has been proved.[163] The duration, frequency, nature and continuity of the interactions between two persons all relevantly bear on the question of whether a relationship exists or not.[164] Relationships are generally characterised by repeated interactions which generate patterns of interpersonal behaviour.[165]
[162] R v Mann (2020) 135 SASR 457, [21].
[163] R v Mann, [15].
[164] At [27].
[165] At [28].
The following is a summary of the factual findings I have made:
· The first telephone/Snapchat contact between the accused and the complainant was in early 2020.
· The accused and the complainant had some telephone/Snapchat contact between then and 21 March 2020. The frequency and content of that contact cannot be discerned other than it was highly sexualised.
· On 21 March 2020, the complainant and the accused met for the first time in person. The complainant caught the train to visit the accused at his home. After a few hours of talking, drinking and smoking cannabis, they had sexual intercourse. The complainant left the next morning on the train.
· The frequency and content of telephone/Snapchat contact between 21 March 2020 and 9 April 2020 cannot be discerned.
· On 9 April 2020, the complainant and the accused met in person for the second time. The complainant and Ms SN caught the bus to meet the accused who drove them to his place. After a few hours of talking, drinking and smoking cannabis, the two girls were very drunk.
· On the morning of 10 April 2020, the accused had sexual intercourse with the complainant. He sent a text to his friend describing the complainant as ‘Just some random I met n fucked then ask her to bring a friend next time and she did, both only 17 omg’.
The prosecution must prove this element beyond reasonable doubt. There is a paucity of evidence about the frequency and nature of their contact apart from the two meetings at the accused’s home. That paucity of evidence makes it difficult to make necessary findings of fact. I must not speculate. Based on the evidence I have accepted, I think it possible or probable that the accused knowingly maintained a relationship with the complainant but I am not satisfied about that to the standard of beyond reasonable doubt.
Second element
Even if the prosecution had proved the first element of the offence, the prosecution must also prove that the accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship.
The accused agreed that he engaged in three sexual acts with the complainant on 21 March 2020.
The accused submits that he has a defence to this charge. In relation to the unlawful sexual acts on 21 March 2020, the accused must prove that he probably believed the complainant was of or above the age of 17 and that he did so on reasonable grounds.
The accused gave evidence that the complainant told him she was 18 when they communicated on Snapchat. He disagreed with the suggestion that the complainant had her age as 16 in her Snapchat profile.[166]
[166] T436.
I have rejected the complainant’s evidence that she told the accused during the first Snapchat call that she was 16 and in year 9. I do not consider that she gave him that information before or at the time of their meeting on 21 March 2020. I do not find her evidence about what she said to the accused to be credible or reliable.
The accused gave evidence that he was intending to have sexual intercourse with the complainant on their first meeting. When he saw her for the first time, she looked older than his children.[167] He does not remember introducing her to his children. She bought her own alcohol.[168] He gave evidence that the complainant ‘looked 18, 19 I guess’.[169]
[167] T455.
[168] T456.
[169] T455.
He was asked whether he thought that he might ask her some questions to check that she was in fact 18. He answered, ‘I just assumed she was 18. She told me she was 18, she acted 18, there was nothing to suggest she was younger’.[170] He did not ask her anything to check, but ‘just took it at face value’.[171] The sexual things she was saying was a big part of him thinking that she was 18. He said before they had sex ‘it was just general chat, drinking, laughing’.[172] He does not remember making any enquiries of her about having a driver’s licence, whether she lived with her parents or whether she worked.[173] It did not cross his mind that she might be younger than 18.[174] He could not remember any of the conversations with the complainant in the hours leading up to having sexual intercourse with the complainant. He imagined that his sons would have been talking to her during that time too and that he was there for parts of that conversation.[175]
[170] T450.
[171] T455.
[172] T450.
[173] T457.
[174] T457.
[175] T458.
The evidence of the accused about the complainant’s initial presentation was similar to the evidence of Ms Ansell who gave evidence that the complainant talked a lot about past boyfriends. It made Ms Ansell think that the complainant was older than Ms Ansell thought because of all those life experiences. She asked the complainant how old she was and was told 18.[176] On the evidence, that conversation must have occurred after April 2020.
[176] T626.
Prior to having sexual intercourse with the complainant on 21 March 2020, the accused made a ‘consent’ video[177] of the complainant. He agreed that the complainant appeared ‘quite giggly’[178] but gave evidence that he thought that was because making a video was an odd thing to be doing. He disagreed with the suggestion that her giggling and placing the pillow over her head was a bit immature.[179] It never crossed his mind that she was a bit younger than she had said.
[177] Exhibit P3.
[178] T458.
[179] T460.
If the accused thought that the complainant was under-age, it does not make sense for him to make a video of her to protect himself before having sexual intercourse with her. To the contrary, the making of a video created evidence which tended to incriminate him.
In a text message on 16 February 2021, the complainant said to the accused that her new boyfriend (who was a friend of the accused) thought she was 18. The accused responded, ‘Yeah I thought you were as well’. The complainant responded ‘Oh shit yeah’.[180] During cross‑examination, the complainant gave evidence that the accused ‘was saying that so that there was evidence, him trying to say that he didn’t know, but he did know’.[181] She said ‘he wanted as much evidence from me for the [Ms SN] case as he could get out of me’.[182] The complainant’s suggestion that they both sent those text messages to create evidence was ludicrous. None of the surrounding text messages in Exhibit D12 support that connotation at all. The text message from the accused does support his evidence that he believed she was 18.
[180] Exhibit D12, page 39.
[181] T174 – 175.
[182] T175.
I find that the accused probably did believe that the complainant was 18 at the time he had sexual intercourse with her on 21 March 2020.
The issue of whether the accused held that belief on reasonable grounds is a difficult one to resolve. I think the complainant told the accused she was 18. Is that sufficient for his belief that she was 18 to be a belief held on reasonable grounds? He was then 41, at least 23 years older than her. Given such a disparate age difference, it may not be reasonable to simply rely upon her assertion that she was 18. He had previously communicated with her over the phone and had only just met her.
However, in all the circumstances, I consider that the complainant was, contrary to her evidence, determined to have the accused believe that she was 18. From the outset, she portrayed herself in a very sexual way.[183] Ms Dunlop submitted that from the complainant’s demeanour on the video, there was enough to put the accused on notice that something was not quite right.[184] I think it is important to consider that video in context. Up to that point, the complainant had been acting in a very sexual way with the accused and they had been drinking and smoking cannabis together. In the accused’s mind, she was undoubtedly young, only 18. I do not consider that the video was sufficient to put him on notice that she may not be 18.
[183] T525.
[184] T655.
I find that on 21 March 2020, the accused has proved the defence on the balance of probabilities in relation to the three unlawful sexual acts.
I do not consider the same can be said in relation to the accused’s state of mind at the time of the unlawful sexual act/s on 10 April 2020.
After the complainant left on the first occasion, she sent a text to the accused which said ‘Hey, if my parents say it’s all good, could I stay here another night?’.[185] The accused gave evidence that it did not cross his mind that there was something inconsistent with an 18 year old asking for parental permission to stay at his place.[186]
[185] Exhibit P7, page 15.
[186] T464.
The accused gave evidence that his two sons were at home with the complainant and Ms SN on 9 April 2020. He gave evidence that ‘I remember the children having a conversation, or a conversation that came up and I think something came out about [the complainant] being 17’.[187]
[187] T396.
In his text to his friend on 10 April 2020, the accused bragged about having a threesome, describing the complainant and SN as ‘both only 17 omg’.[188] He was asked how old he thought the complainant was at the time and gave the following answer:
So I believed that [complainant] was 18 and [SN] was a week off her 18th birthday and then somehow, throughout the night, it came out that [complainant], I don't know how it all came out and then she goes 'Nah nah I'm only 17' or 16 something and that's, yeah. It was some conversation that went on there, I don't know exactly how it – but 18 yeah. And given what happened after, I probably should have been more across it.[189]
[188] Exhibit D24.
[189] T542.
I am not sure whether the accused genuinely believed the complainant was 17 before he had sexual intercourse with her on 10 April 2020. Even if he did, I do not consider that belief was held on reasonable grounds. On his evidence, the complainant had contradicted herself about her age. She was now saying she was 17, not 18. At that point, as the accused said, he probably should have been ‘more across it’.
The accused has not proved on the balance of probabilities that, at the time he engaged in unlawful sexual act/s on 10 April 2020, he believed on reasonable grounds that the complainant was 17.
The complainant gave brief evidence about the sexual acts on 10 April 2020 in a flippant and casual manner. The accused gave evidence that he had penile/vaginal sexual intercourse with the complainant and could not remember if there was any other type of intercourse. In light of my adverse findings about the general credibility and reliability of the complainant’s evidence, I am satisfied beyond reasonable doubt that the accused engaged in one unlawful sexual act of penile/vaginal intercourse on 10 April 2020.
The prosecution has not proved beyond reasonable doubt that the accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship. Only one unlawful sexual act has been proved beyond reasonable doubt.
Third element
The complainant was a child during the relationship. I find this element proved.
Fourth element
The accused was an adult during the relationship. I find this element proved.
Verdict - count 1
The prosecution has not proved the first and second elements of the offence beyond reasonable doubt. I find the accused not guilty.
Verdict – count 2
I am satisfied beyond reasonable doubt that the prosecution has proved the first element of the offence, namely, that there was an act of penile/vaginal sexual intercourse on 10 April 2020. I am satisfied beyond reasonable doubt that the complainant was under the age of 17 years at the time.
For the reasons outlined above, the accused has not proved the defence to the charge on the balance of probabilities.
I find the accused guilty of count 2.
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