R v Roberts - [2021] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROBERTS
Criminal Trial by Judge Alone
[2021] SADC 31
Reasons for the Verdict of her Honour Judge McIntyre
26 March 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused was charged with two counts of unlawful sexual intercourse and one count of communicating with the intention of making a child amenable to sexual activity. At the commencement of the trial, the accused pleaded guilty to communicating with the intention of making a child amenable to sexual activity and not guilty to the two counts of unlawful sexual intercourse.
The trial therefore proceeded only in relation to two counts of unlawful sexual intercourse particularised as having occurred between 31 May 2018 and 24 October 2018 when the complainant was aged 13 or 14 and the accused was aged 31 or 32. Both counts involve an allegation that the accused inserted his penis into the complainant’s vagina.
Verdict: guilty both counts
Evidence Act 1929 (SA) s 13BA(1), s 13BA(5), s 34M, s 34P; Criminal Law Consolidation Act 1935 (SA) s 63B(3)(b), referred to.
R v Symons [2018] SASR 503, considered.

R v ROBERTS
[2021] SADC 31

The accused was charged on Information dated 24 April 2020 with two counts of unlawful sexual intercourse and one count of communicating with the intention of making a child amenable to sexual activity. He elected to be tried by a Judge without a jury.
At the commencement of the trial, the accused pleaded guilty to communicating with the intention of making a child amenable to sexual activity and not guilty to the two counts of unlawful sexual intercourse. The trial therefore proceeded only in relation to counts 1 and 2 on the Information. The complainant in each count is VT. Both counts are particularised as having occurred between 31 May 2018 and 24 October 2018 when VT was aged 13 or 14 and the accused was aged 31 or 32. Both counts involve an allegation that the accused inserted his penis into VT’s vagina. Count 1 is alleged to have occurred at VT’s home and count 2 is alleged to have occurred at the accused’s home.
For the reasons that I now publish I find the accused guilty of counts 1 and 2 on the Information.
Legal considerations and general direction
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:
·An accused person is presumed to be innocent of a charge unless and until his guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt. 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. 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 offences, 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 witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
·The accused elected not to give evidence in this trial. He was not bound to give evidence. He was entitled to remain silent leaving the prosecution to discharge its burden of proving the case. His interview with the police was however admitted in evidence. The evidence of the interview with police was not given on oath, nor was the accused subject to cross-examination in the strict sense. He was told that he did not have to answer the questions put to him but he nevertheless chose to do so. The interview was video recorded. It is exhibit P13. I am entitled to give such weight to the evidence of the police interview as I see fit. This evidence can be used both for and against the accused.
Undisputed facts
VT and her mother SD met the accused through their church in about 2013 when VT was about 8 years old. The accused became a family friend. VT would spend time with the accused and, following his marriage, his wife and children. They communicated with each other regularly by telephone and Skype. They met at church events. The accused would, from time to time, take the complainant on outings. The accused visited the complainant and her mother at their home on Anzac Highway. Sometimes he was accompanied by his wife and children, sometimes he visited on his own. Following the accused’s marriage in March 2017, VT visited the accused and his wife at their home in Aldinga. On occasion, VT would stay overnight.
The accused sent a text message of a sexual nature accompanied by two photographs of his erect penis to VT in October 2018. This is the communication that is the subject of count 3 on the Information to which the accused has pleaded guilty. It was the discovery of this communication on VT’s telephone by her mother SD that caused this matter to be reported to the police.
Elements of the offence
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 VT and, second, that VT was under 17 years of age at the time. There is no dispute that VT was 13 to 14 between the charged dates. I am satisfied beyond reasonable doubt of this element of the offence. The contentious issue in each count is whether the prosecution has proven the first element.
Prosecution case
The prosecution case consisted of evidence from the investigating officer Detective Brevet Sergeant Hlavnicka, the complainant VT, her mother SD and VT’s school friend AH. In addition, a number of documents and recorded materials were tendered.
VT’s evidence
VT’s evidence was admitted in four portions. There were three audio visual recordings admitted under s.13BA(1) of the Evidence Act 1929 (the Act). VT also gave evidence, and was cross-examined, on topics the subject of a grant of leave under s.13BA(5) of the Act.
The first recording was of an interview with VT on 14 May 2019 conducted by Detective Brevet Sergeant Hlavnicka.[1] The second recording was an interview conducted by Detective Brevet Sergeant Nicola Toone on 25 May 2019 at the direction of Detective Brevet Sergeant Hlavnicka.[2] The final recording was an interview conducted by Brevet Sergeant Attard on 5 July 2019.[3]
[1] Exhibit P1
[2] Exhibit P3
[3] Exhibit P5
The first interview deals solely with the photographs and the text message. The second two interviews deal with VT’s allegations of unlawful sexual intercourse.
In brief, VT gave a generally consistent account of the matters alleged in counts one and two in each interview. VT said that the first time the accused had sexual intercourse with her was an occasion in her bedroom. This is the incident charged as count 1 on the information. VT said the accused visited her home address some time after 3:30 pm. She was unsure of the date but thought that it was around the time of the Royal Show in August or September. VT was 14 at the time. Her mother, SD, was downstairs. VT and the accused were upstairs in her bedroom watching a movie. They were both sitting on the bed. VT became bored and lay on her tummy looking at her phone. She felt the accused pull her pants down. She was wearing leggings. He got on top of her and inserted his penis into her vagina. VT said he put his penis in her vagina a couple of times and said, “oh it fits”. He then got off, pulled his pants up and she put her pants on.
After this incident VT and the accused went downstairs. The accused asked her mother, SD, if VT could go with him to Glenelg to have dinner with his wife and children. Her mother did not want her to go. VT said she wanted to go. She and the accused both argued with SD who eventually relented. VT and the accused went to Glenelg in the accused’s car. They met his wife and children. They had dinner at the Hog’s Breath Café. VT said that she thought the accused’s wife was staying at a hotel or motel in Glenelg for something to do with a wedding.
In cross examination VT agreed that she viewed the accused and his wife as parental figures that she could rely on. She agreed that she spoke to them about personal matters but could not recall speaking to Mrs Roberts alone in her bedroom. She agreed that she probably spoke to the accused in her bedroom about personal matters. Several propositions were put to VT about the circumstances surrounding count one. She said she could not remember or did not know that the accused arrived at 5 pm; that they sat downstairs watching tv; that her mother lay on the sofa unwell; that the accused said he could not stay long as he had to get to Glenelg to have dinner with his wife; that the accused was texting his wife on his phone whilst he was at her house; or that the reason his wife was at Glenelg was that she was doing hair and makeup for a bridal party. VT agreed that there was to be a wedding between two church goers
In relation to the second incident, count 2, VT told police the accused “had sex” with her while she was having a sleepover at the accused’s house. This occasion took place after the first in her bedroom and before the photographs were sent to her. VT said that she and the accused were in bed with his wife. The bed was a similar size to her bed at home which is a queen size bed. VT was on one side of the bed; Mrs Roberts was on the other and the accused was in the middle. VT was trying to fall asleep on her side. She was wearing loose shorts. The accused came up behind her, pulled her shorts to one side and put his penis in her vagina. After this happened he got out of bed. Mrs Roberts asked VT where he had gone. VT replied that she was not sure but possibly to the bathroom. In cross-examination, it was put to VT that there was only one occasion where she slept in the accused’s bedroom. She maintained that there were two occasions but only one on which the accused touched her. She could not remember when the second occasion was but she said she did remember two occasions. It was also put to VT that the accused did not sleep in the bedroom because he slept in a bedroom down the hall. VT said that was wrong. She was also asked as follows:
Q.I want to take you back to the first occasion when you allege Mr Roberts slept with you in the bedroom with Mrs Roberts and he had sex with you. I want to put it to you that Mrs Roberts' child Fox was sleeping in a bassinette in the corner of the room.
A.No.
Q.And I want to further put it to you that Mrs Roberts was tending to Fox every two hours.
A.Yes, in a separate room.
In addition to these two charged incidents, VT also told police about an incident in which she says that the accused touched her vagina on the outside of her clothing. This was an occasion when she was staying at the accused’s house with him and his wife for a sleepover. They were in the lounge room on a mattress. VT, the accused and his wife were on the same mattress. It is unclear whether they were sleeping. VT said she was lying on the mattress when the accused started touching her. He was touching her vagina over her clothes then he tried to go under. She pushed his hand away. The date on which VT says this occurred is not clear from her evidence but it was “a while before” the incidents where he put his penis in her vagina. It must, however, have been after the accused’s marriage in March 2017 given that it is uncontroversial that VT did not stay over with the accused prior to that time. She maintained in cross-examination that she, the accused and his wife would sleep on the mattress and denied that the accused would sleep on the sofa.
VT told the police officers in both the second and third interview that she complained about the first incident to her then best friend at school: AH. In the second interview[4] VT said she told AH in late 2018; maybe September or October. VT was not asked what she told AH. In the third police interview[5] VT said that she told AH by Snapchat messages on an occasion when VT was staying at her nanna’s house. VT could not remember what she said to AH. In her evidence in court VT said she couldn’t remember the exact words but thought she said something like “the old man had sex with me” and that she sent this by way of Snapchat texts which have disappeared because she did not save them. In cross-examination, it was put to VT that she and AH had a falling out over differences in dates in their statements to police. VT denied this.
[4] Exhibit P3
[5] Exhibit P5
The charged acts came to the attention of police after VT’s mother located the two photos of the accused’s penis and accompanying text message on VT’s phone. VT told Detective Hlavnicka that she thought the photos had been sent about a month before her mother found them. They were at a nail salon when her mother borrowed her phone to use Facebook. When they got home, VT realised that her mother had taken screen shots of the photos. VT called the accused. He said something about “having to make it seem like he’s not the bad person” or something along the lines that “I need to try and convince my mum that he’s not bad. Like, I can’t remember the exact words.”[6] She said that the conversation with the accused was about what she was going to say to her mum. VT’s mother called her downstairs. She did not have to tell her mother anything “cause she knew everything”. Her mother said she would not tell anyone but the next day VT found out she told the police. It was put to VT in cross-examination that the accused did not say anything about convincing her mother that he was not a bad person. VT maintained that he did. She denied making this up.
[6] Exhibit P1
Complainant’s mother
VT’s mother SD said that she and her daughter met the accused at church when her daughter was 8. He was single at the time but later married his wife who also joined their church and social circle. VT and the accused formed a good relationship. VT saw him as a father figure because her father was quite absent. He took her out to the swimming pool, church activities and the like. As she got older VT would “hang with” the accused and his wife. The accused and his family visited SD’s home quite often. He sometimes visited on his own. On other occasions, her daughter would visit the accused and his family. When the accused visited he and VT would often go upstairs to play board games or cards or watch TV in her daughter’s bedroom. Typically, the two of them would spend maybe an hour or so in the bedroom. As far as SD was aware they never closed the door.
SD said that there was an occasion in August 2018 where her daughter went to Glenelg with the accused. Two church members were getting married. Before the wedding, the bridesmaids and other people stayed overnight at the Grand Hotel to get ready for the wedding. The accused came over after work because his wife was staying at the Grand Hotel. He and VT went up to her room. SD was making dinner. They were in VT’s bedroom for “an hour max”. They then came downstairs and asked if VT could go out for dinner with the accused and his family in Glenelg. SD got really upset because she had already cooked dinner. There was an argument but eventually she gave permission for her daughter to go to Glenelg with the accused. She said in cross-examination that she did not notice anything unusual about her daughter either then or later when she returned home.
In cross-examination, a number of propositions were put to SD about the evening of the Glenelg trip. She denied laying on the sofa in the living room when the accused arrived. She denied being unwell. She further denied watching television for approximately 20 minutes in the living room. She was pretty sure she was preparing dinner. It was put to her that no more than 10 to 15 minutes was spent upstairs by the accused. SD said it was longer than that, closer to an hour. She agreed that when the accused went upstairs the door would always be open to VT’s bedroom.
SD said that after the accused married, VT would occasionally stay over at his marital home. SD was strict about the number of sleepovers that took place. They were only allowed to take place during school holidays and on weekends. SD disagreed with the proposition that VT would only stay over for one night at a time; VT would be collected on a Friday night and would be dropped back at home after attending church on Sunday. On none of the occasions that VT stayed with the accused’s family did SD make observations of her daughter that caused her any concern.
SD gave evidence about the circumstances in which she came to see the communications that are the subject of count 3. She and VT attended a nail salon in October or November of 2018. She borrowed VT’s phone. Whilst she did so she checked through her daughter’s messages and came across the photographs of the accused. She screenshotted and sent those to herself intending to take them to the police later. When they got home from the nail salon she told her daughter that she had found the photographs. VT begged her not to do anything and then stormed out. SD understands that VT told the accused that SD found the photographs. He tried contacting SD. She did not want to speak to him but did engage in a series of text messages with the accused.[7] These included a somewhat unusual exchange in which SD responded to a text from the accused that read “we can all learn something from this”. SD replied, “maybe that’s what she needed to wake up to herself”. SD was unable to explain what she meant by that.
[7] Exhibit P12
The following day SD took her phone to the police station and reported this matter to the police.
Complaint witness
AH is a friend of VT. They go to school together. She has known VT since they commenced year 8. AH’s evidence concerned VT’s initial complaint and was called under s34M of the Act. Evidence of an initial complaint is admitted both to inform the trier of fact as to how an allegation first came to light and as evidence of consistency of conduct of the alleged complainant. However, the complaint does not constitute evidence of the truth of the facts alleged by the complainant.
AH gave evidence that she regularly visited VT’s home where she lived with her mother. She understood that VT and her mother attended church and that this was where they met the accused who AH knew as Hayden. VT described him as a family friend. AH formed the opinion that “you would call him like an uncle”.
AH had a conversation on Snapchat with VT about Hayden. In examination in chief, AH said the conversation happened in 2018 but she could not remember when. She was unable to access her Snapchat conversations from that date as she had not saved them. AH said they are deleted once opened. In cross-examination, AH said that she lived with her grand-mother in June 2018 but went back home in late June. AH said that she was living with her grand-mother at the time she received the Snapchat message from VT and agreed that this was in June 2018.

AH said that she had been talking over Snapchat with VT when VT said that Hayden raped her. AH could not remember how she responded to that. A few hours later she got more details. AH could not remember whether she got those details via Snapchat or in person. AH said that the details VT told her were as follows:[8]
[8] T [53-4]
A.So she was on her stomach and he got on top of her and pulled her pants down and she obviously didn't want it at all but she was too scared to push him off and he then took - sorry, he then, like, had sex with her.
Q.Did she say how he had had sex with her.
A.She - he put - he put his dick in her.
Q.Sorry to press you on the detail but did she say which part of her that he had put his dick into.
A.No, not that I can remember.
Q.Did she say what she or Hayden had been doing prior to that happening.
A.Yes, they were watching a movie and playing Xbox, so it was like a bit of both.
Q.Did she say where it was that they were doing that.
A.In her bedroom.
Q.Did she tell you what happened after he had put his dick in her.
A.I can't remember, I think he either went downstairs or went back to watching the movie but I'm not sure.
Q.Just as best you can, can you use the words that she told you. If you can't remember, that's okay, but do you remember what, if anything, she said about what Hayden did after he put his dick in her.
A.No, I can't remember any of that. Sorry.
Q.Did she tell you anything about how it had made her feel.
A.Yes, she felt very, very scared.
Q.Did she ask you to do something or not to do something.
A.Yes, she said not to tell anyone and I took - like, I took her word, like, I didn't tell anyone.
Q.Did you press her for any details that she wasn't willing to give you about it.
A.No, I said 'You don't have to tell me anything if you don't feel comfortable'.
AH said that she and VT had a breakdown in their friendship around 2019 when VT left their school. They did not speak for a while. In the last year however AH said they had got in contact and started being good friends again. AH denied that the problems in their relationship had anything to do with this matter.
Detective Brevet Sergeant Hlavnicka
Detective Hlavnicka was the investigating officer. Police first received a report about the phone messages on 15 November 2018 and the matter was referred to him the same day. He and another officer attended at the accused’s house on the day of that referral to interview the accused. The interview was tendered in evidence, played in court and marked exhibit P13.
At that stage, Detective Hlavnicka did not have a statement from VT. He did not obtain one until many months later. He said that he made a number of attempts to speak to VT before finally speaking to her in April 2019. He is the officer who interviewed her on the first occasion. Prior to recording the interview, he determined that he would only deal with the communication charge. He arranged for a female officer, Detective Brevet Sergeant Toone, to conduct a second interview with VT about other allegations which subsequently formed the basis of counts 1 and 2 on the Information.
Detective Hlavnicka seized the accused’s phone and VT’s phone. Both were submitted to the electronic crime section of police for analysis. He interrogated a report provided by that branch but was unable to find anything of relevance to this investigation.
Detective Hlavnicka attempted to take a statement from the accused’s wife but she declined.
That, in summary, was the prosecution case. There was one witness for the defence, the accused’s wife.
Mrs Roberts
Mrs Roberts first met her husband in 2009 when they were working together. They entered into a relationship in 2015 and married in March 2017. They did not live together prior to marriage. When they married they moved in together at Aldinga Beach. They have two children. The age of the eldest child was not made clear but the youngest was born in January 2018
The accused was a member of a church when they met. Mrs Roberts went to church with him and he introduced her to other members including VT and her mother SD. The members of the church were regarded as brothers and sisters; her husband’s relationship with VT and SD was no different. When Mrs Roberts became a member of the church she met many people outside church functions. SD extended an invitation to her and so she and the accused would go to SD’s house. Before they married, Mrs Roberts lived only a few minutes down the road from SD and VT so she would see them maybe twice a week. After her marriage, she saw them less often, perhaps once a month. She would attend their house either on her own with her son or with the accused. She and her husband would have face to face contact with SD and VT at church activities mainly. When they visited SD’s house she observed her husband go upstairs with VT on occasion. He would spend maybe 5 to 10 minutes up there.
Mrs Roberts gave evidence about an occasion in August 2018 when there was a wedding associated with the church. The wedding was on a Saturday but she was engaged by the wedding party to do the bride and bridesmaids’ hair. She was to stay overnight at their hotel in Glenelg on the Friday night. She gave evidence about an arrangement to go out with her husband for dinner with their two children and VT if she was able to come. They did not ring SD; Mrs Roberts understood that her husband was to attend at SD’s house on his way from work to Glenelg in order to ask SD if VT could come to dinner. Mrs Roberts said she is aware that he did that because they were texting the whole time he was there. Texts were going back and forth every 5 minutes. In cross-examination, Mrs Roberts agreed that there were four text messages about 5 minutes apart although they could have been quicker.
Naturally Mrs Roberts could not give any evidence about the time at which her husband arrived at SD’s house given she was not there. She did however give evidence in cross-examination of her understanding of her husband’s work hours. Mrs Roberts said that he worked in Prospect, Monday to Friday and that his working hours were 7:00 am start and a 3:00, 3:30 sometimes 4:00 pm finish. In 2018, her children would eat at about 5:00 to 5:30 pm and she and her husband would eat after the children had gone to bed at around 7:00 to 7:30 pm. Her husband was not always there to put the children to bed depending on his work hours. There were times when he might have been home after 6:00 or 6:30 pm.
Mrs Roberts could not recall the time that her husband and VT arrived at the foyer of the hotel in Glenelg. She brought them back up to the hotel room so that the accused could change out of his gym clothes so that they could all go out for dinner. That process took about 15 to 20 minutes. During this time, VT seemed normal and played with her children. They then went to the Hog’s Breath Café. They went back to the hotel room and gathered up her eldest son’s things because he was going home with the accused that evening. Then the accused, her son and VT left the hotel. She and her youngest son remained at the hotel. Again, she could not recall the time that her husband left.
In relation to sleepovers Mrs Roberts said that VT stayed over about three times following her marriage. VT would arrive at their house on Saturday and stay only one night being collected on Sunday after church.
The sleeping arrangements were generally that they would all sleep in the loungeroom. There would be a mattress from her bed in the loungeroom with her son’s single mattress pushed up next to it and her baby’s bassinette next to that. She and VT would sleep on the mattress, her eldest son would sleep next to VT on his mattress, the baby would sleep in the bassinette and the accused would sleep on the couch behind them.
There was only one occasion when she and VT shared the bed in her marital bedroom. Her son was a sick baby; he was waking up a minimum of 10 times a night. Mrs Roberts was sleeping very poorly. She was constantly up and down attending to him. Accordingly, she had the bassinette next to her in the bedroom. The longest period she slept for was about 2 hours. VT was staying overnight and so she and VT slept in the bed whilst her husband slept in the loungeroom on the couch. Mrs Roberts informed the others of these sleeping arrangements.
In cross-examination, Mrs Roberts said she was unable to recall specific occasions when VT stayed overnight. The occasion on which VT slept in the bedroom was 2018 because it was after her son’s birth and he was born in January 2018. She was then asked as follows:[9]
[9] T [99-100]
Q.Isn't it in fact the case that when VT wasn't at your house you and your husband would share the bed after Fox was born.
A.Yes.
Q.Didn't he also share the bed with you on the occasion that VT stayed in your bedroom.
A.No, he slept in the lounge room. When me and VT slept in the bedroom it was me and her with Fox in the bassinet.
Q.You can say, can you, that he never entered the bed at any point that night.
A.No, there wouldn't be enough room.
Q.Did the children need attending to.
A.Yes, every two hours.
Q.Did your husband ever participate in getting to the children during the night.
A.No, because he can't breastfeed.
Q.So he didn't bottle feed or anything like that.
A.No, my son would never take a bottle.
Q.There was nothing he did to help the children if they were restless during the night on those occasions.
A.No.
Q.So he was just in the lounge room, was he.
A.Asleep, to my best knowledge. Yes.
Q.Why do you say that.
A.Well, I guess when VT didn't sleep over and we were in the marital bed with our son in the bassinet he would wake us both up, so I guess he would be asleep, not being woken up by the cries of a newborn baby.
Q.Are you trying to protect your husband in saying that he was asleep on those occasions.
A.No.
Q.Are you trying to protect your husband in your evidence generally.
A.No, I -
Q.You're not.
A.Well, hang on a second. I'm not - I'm on my husband's side in this because I'm his wife but I'm not - I don't lie. I'm not sure if I understand your question completely.
Q.What do you mean that you're on your husband's side.
A.Because I believe what's been put against him is not - that it's not correct, I guess that's the right word for it.
Q.Is that based on your knowledge of your husband.
A.Yes.
Mrs Roberts maintained that there was “no physical way” the accused could have sexually assaulted VT in their bed. Mrs Roberts was cross-examined about this at some length but maintained that version of events. She was asked why she did not speak to the police if that was the case. Mrs Roberts explained that she did not wish to speak to the police when they approached her because she had a lot on her plate with post-natal depression and her struggles with a very sick baby.
Discreditable conduct
The prosecution served a notice of intention to adduce discreditable conduct evidence under s34P of the Act related to the uncharged act and the charged acts including the sending of the communications that are the subject of count 3.
Uncharged Act
On the prosecution case, the accused touched VT’s vagina on the outside of her clothing on an occasion when she was staying at the accused’s house with him and his wife for a sleepover. The date on which VT says this occurred is not clear from her evidence. It seems uncontroversial that is must have been after the accused’s marriage in March 2017. This incident is not reflected in a charge although it would, if proven, amount to an indecent assault.
The prosecution led this evidence for both propensity and non-propensity uses. The prosecution says that, if I accept the truth of VT’s allegation, it tends to show that the accused had a sexual interest in her and a tendency to act upon it when the opportunity arose. Prosecution also contend that the accused would have been emboldened by VT’s lack of complaint following this incident and her continued close relationship with him thereafter to offend against her in the reasonable expectation that she would not complain.
Of course, before I could use evidence of this uncharged act for the purposes suggested by the prosecution I would first need to be satisfied that it occurred. I accept VT’s evidence, including her evidence about the uncharged act, for the reasons that follow.
Count 3
Count 3 on the Information charges the offence of communicating with the intention of making a child amenable to sexual activity contrary to s.63B(3)(b) of the Criminal Law Consolidation Act 1935 (“CLCA”). By entering a plea of guilty to that charge the accused has admitted that, on 23 October 2018, he made a communication for a prurient purpose with the intention of making VT amenable to sexual activity. “Sexual Activity” is not defined in the CLCA. It comprises a range of behaviours, physical or verbal, that are capable of being sexually stimulating and includes sexualised conversations or pornographic images sent by electronic means.[10] The type of sexual activity admitted by the accused has not been identified, nor were submissions made by defence counsel on that topic despite being given the opportunity to do so.
[10] R v Symons [2018] SASR 503.
There are two key pieces of evidence that bear in this topic. First, the communication itself; and second, what the accused said about his motivation in his police interview.
The message and accompanying photographs are set out in exhibit P7. The two photographs are of the accused sitting in his car wearing high visibility work clothing and holding his erect penis. These photographs are accompanied by a message from the accused to the complainant which reads “Totally rubbing myself thinking about having you over alone”. The message is completed by an emoji; a smiley face with tears which I understand to indicate laughing to tears. In his interview with the police,[11] the accused said that he put the smiley face on the message to indicate that it was a joke. He was asked why he sent the photographs of his erect penis and that message. The accused responded that “I don’t know. Because I was yeah I guess fantasizing and nothing more”. He then went on to say that VT had flirted with him in the past and that he had become aware that she was sexually active maybe three or four months prior to sending the photographs. He said that he had started:
seeing her in a different light because she has gone through puberty, she is not a child and to my eyes I thought that she was more mature and I didn’t take her age into consideration as I should of.
[11] Exhibit P13
The accused repeated that the messages were a fantasy and “nothing more”. I take this to be a denial by the accused that he intended to engage in contact offending with the complainant as to opposed to engaging in a sexualised communication with her.
The prosecution contends that the accused’s explanation that he was joking or fantasizing is not the complete truth. It contends that the messages are evidence of a pre-existing relationship between the accused and VT in which they had already engaged in sexual intercourse. It is contended that it is implausible that the accused sent such messages out of the blue; that his actions would only make sense if the accused knew that VT would not complain or report him or otherwise react as one would expect a child to react receiving messages of that kind from a family friend. Prosecution further contends that I can reason that the accused had a sexual interest in VT and that he had had this for some time leading up to the message thereby making it more likely that he committed the offences alleged in counts 1 and 2.
Defence on the other hand say that the admissions to Count 3 relate solely to that charge and that they do not make it more likely that the accused had engaged in prior sexual activity with VT. Whilst no submissions were made specifically on the topic of what “sexual activity” the accused intended to make VT amenable to it appears, from what the accused said to the police, that he says he had no intention of engaging in sexual activity with VT and that the sending of the message was part of his fantasising about her. In those circumstances, I infer that he intended to convey that the “sexual activity” is the communication itself; that is, he intended to make the complainant amenable to sexualised communications.
I have carefully considered the accused’s statements to the police and the communications. I reject the suggestion that this was merely the accused fantasising about VT. First, this is not consistent with the plea of guilty. The plea includes an admission that he intended to make VT amenable to some form of sexual activity whether by way of contact or communication. Second, it is not apparent why it was necessary for the accused to communicate with VT in this way to further his fantasy. I also reject the proposition that the accused’s sole intention was to make VT amenable to a sexualised communication. His message does not solicit a response from VT but does indicate his desire to have VT over alone. This is more congruent with a wish to engage in contact activity rather than a back and forth of text messages. The smiley face emoji does not make this less likely. I reject the suggestion that this was simply a joke given it was sent to a 14-year-old girl by at 32-year-old man and particularly given the photographs that accompanied the message.
Direction
I have accepted that the uncharged act occurred as alleged and I accept that the accused intended to make VT amenable to contact sexual activity by sending the photographs and text message. I am therefore entitled to reason in two ways. First the evidence of the indecent touching shows that the accused had a sexual interest in VT and had acted on that interest on another occasion. This makes it more likely that he acted on that interest again by committing the offences charged. The evidence of the text message and photographs, together with my finding that the accused intended to make VT amenable to contact sexual activity, also demonstrates that the accused had a sexual interest in VT. The police interview suggests that this interest pre-dated the sending of the text message and photographs by three to four months. This is the time within which the offending is alleged to have occurred. This sexual interest makes it more likely that the accused acted on his interest by committing the offences charged. Of course, it is necessary to consider all of the evidence when deciding whether each charge is proved beyond reasonable doubt.
The second way in which I can use this evidence is to understand and assess the direct evidence of the charges. In particular the evidence of the uncharged act shows that VT is not saying that the offending occurred with no lead up. It may also help to explain why VT reacted as she said she did. It might also help to show why the accused felt able to act as he did and did not fear that VT would report the offending. Further, the sending of the communication tends to support VT’s account of sexual activity. It is an extraordinary communication to send “out of the blue” although of course it may have been prompted by something other than prior sexual activity of the type alleged in counts one and two.
These are the only ways in which I may use this evidence. I may not use it for any other purpose. In particular, I must not use the evidence to reason merely because the accused touched VT in the manner alleged or sent the photographs and text message that he has admitted he is therefore the sort of person who would be likely to commit the two offences of unlawful sexual intercourse with which he is charged. That would be an incorrect approach and I have not adopted it. Further I cannot use this evidence to absolve me from the task of determining whether the charges have been made out. It is simply one part of the evidence presented in proof of the charged offences. I must not reason that because I am satisfied that the accused touched VT in the manner alleged and that he sent the communication with the intention of making her amenable to contact sexual activity that he must necessarily be guilty of the two charged offences. Again, this would clearly be a wrong approach and I have not adopted that.
VT’s evidence

VT was the key witness for the prosecution. The accused cannot be found guilty of the charge unless I accept her evidence beyond reasonable doubt. The recorded evidence was unsworn; I need to exercise caution in determining whether to accept that evidence and the weight to be given to it. I should not act upon it unless completely satisfied of its truth and accuracy. There is no independent support for VT’s allegations. I can however convict upon the uncorroborated evidence of a complainant if I am satisfied of its truth beyond reasonable doubt.
VT’s evidence in all three recordings and, in her evidence in court, lacked detail in relation to the physical acts said to constitute counts one and two. She appeared to have difficulty understanding some of the questions which were put to her to elicit more detail about the sexual activities alleged. VT also appeared to be embarrassed and ill at ease when discussing sexual matters.
In the first interview, for example, VT was able to provide details about the accused’s car and work wear but was visibly uncomfortable when asked about his penis and when shown screen shots of the relevant communication. On occasion, she giggled in a nervous manner. In both the second and third interviews concerning counts 1 and 2 and the uncharged act VT could supply detail concerning surrounding circumstances but her description of the mechanics of the sexual activity was considerably more limited. VT appeared embarrassed and ill at ease. She struggled to find the words to describe the event.
When describing the incident that is the subject of count 2 in the second interview,[12] VT gave some detail about the sleeping arrangements and surrounding circumstances. She said that the accused “had sex” with her. When asked for more detail, VT said that the accused put his penis in her vagina by pushing her pants to one side. She was asked how he did this. VT said “He lifted my shorts, they were like loose shorts and I was asleep on my side. And then it just happened”. VT was asked what happened next and said, “he did it for a bit and then left and went to the bathroom”. When pressed for further details she said, “I’ve told you everything”. In the third interview[13], VT gave a consistent account of this incident but again demonstrated an inability to describe the mechanics of the alleged sexual act. When pressed to explain further details VT again said she was lying on her side. She said that the accused was behind her. When asked how she felt VT said she didn’t know what to do, she was just lying there “clueless”. When asked how she felt physically at the time VT said her heart was racing and she was scared. VT said it was not painful.
[12] Exhibit P3
[13] Exhibit P5
In relation to count 1, VT’s account of the sexual act again lacks detail. She said, in the second interview,[14] “there is not much to say about it. It just happened and I wasn’t expecting it and then I remember him saying, oh, it fits.” She gave a largely similar description in the third interview. VT was asked about this incident in her evidence in court. Again, her account was consistent with that in the recorded interviews. VT was asked whether the accused put anything other than his penis in or on her vagina. She said he did not. She did not mention him putting his fingers in her vagina. VT was asked what he did with his penis when he put it in her vagina. She said she could not remember “I think he just put it in and then took it out.”[15]
[14] Exhibit P3
[15] T [25]
Defence put to me that VT made a prior inconsistent statement to police in the third interview by telling police that he put his fingers in her vagina as part of the incident alleged as count 1. I was referred to the transcript of that interview VT said[16]:
A.    He got on top of me and pulled my pants down or the other way around and then put his fingers in my vagina.
Q.    Yep. And describe to me what happened then?
A.    And then he put it in and he said, oh it fits.
Q.    Yep. Yep so that, that’s something he said to you? Yep. Um so. As, describe to me what he was doing then? Just explain to me what he was doing. Like I understand what you’re saying (VT) um that he was having sex with you but just describe to me what he’s doing and what you were doing at that time?
A.    I was lying down.
Q.    Hmm
A.    And he was putting his penis in my vagina a couple of times and then he said it fits.
[16] Exhibit MFIP6 at p9
It was put to me that this inconsistency relates to a crucial detail that cannot be overlooked or explained away. I have reminded myself of the usual directions given to juries in relation to prior inconsistent statements.
There are three difficulties with these submissions. First, the prior inconsistent statement was not put to VT in the usual manner. VT was asked whether the accused put anything other than his penis in her vagina in examination in chief. It was not pursued in cross-examination. She was not asked to comment on the apparent inconsistency between her statement to police in the recorded interview and her evidence in court. Second, when the question was asked, it was asked immediately after a question about count two making it unclear whether the question was tied to that incident or whether it encompassed both incidents. Third, the evidence is the video recording, not the transcript. I have listened most carefully to the recording[17] and I am not certain that the transcript is accurate. VT is softly spoken and the quality of the recording of her voice is not ideal. I am not certain that the word used was “fingers” as opposed to “penis”. In context, it could be either. The asserted inconsistency was not put to VT in the usual way and so I do not have any explanation from her. However, even if the word used was “fingers” it would not cause me to doubt the overall truth and reliability of VT’s evidence for the reasons that follow.
[17] Exhibit P5
I found VT’s evidence to be cogent, consistent and compelling. VT’s evidence about the circumstances surrounding the two charged incidents was detailed and descriptive. As outlined above, VT was more reticent and tended to say as little as possible about what she plainly found to be embarrassing events. This is consistent with her age and her demeanour both in the recorded interviews and in court.
VT often said she “couldn’t remember” in response to questions but, when pressed, supplied details which other evidence established to be correct. For example, VT said that she couldn’t remember when the text messages were sent but, on further questioning, said it was about a month prior to her mother discovering them on her phone in November. In fact, it appears that the messages were sent on 23 October which is about a month prior to the discovery of them on her phone. Likewise, VT initially said she did not know when the events that are the subject of count one occurred but did say that it was on the same day that she had dinner in Glenelg with the accused, his wife and children. VT said that Mrs Roberts was staying at a hotel or motel for reasons connected with a wedding. When pressed VT said that it was around the time of the Royal Show in August or September. The evidence of Mrs Roberts and SD establish that there was an occasion when VT went to Glenelg to have dinner with the accused and his family in August 2018. There was a church wedding being held the following day and Mrs Roberts stayed at the Grand in order to assist the wedding party with hair and makeup.
VT maintained a consistent version of the various events that she described on each occasion she recounted these. In the second police interview, for example, VT corrected the police officer about the location of the uncharged act and order in which the alleged incidents occurred.
VT’s demeanour in the recordings is also compelling. Whilst diffident about describing sexual matters and at times perplexed by the questions she was asked, VT appeared to be doing her best to provide the requested information to the police. She made what appear to be natural and unconscious gestures when asked about certain details such as the manner in which she was lying down in relation to count 2 in both the second and third interviews. These gestures appear more consistent with her recalling events in her mind than with someone fabricating a version of events. Her descriptions were matter of fact and were not embellished in any way. Notably VT did not attempt to paint a picture of the accused as a bad person. VT was frank in conceding or admitting matters that were not necessarily in her interests such as agreeing that her bedroom door was likely ajar during count 1, admitting prior sexual experiences with others and her poor relationship with both her father and mother.
The terms of the complaint made to AH concerning count 1 are consistent with VT’s evidence about that incident. The complaint is not just consistent in broad terms but also in relation to specific details such as the location, VT’s bedroom; VT’s position, on her stomach; and the description of the accused getting on top of her, pulling her pants down and putting his penis into her.
The timing of the complaint is not consistent. The whole of the evidence indicates that the Glenelg dinner occurred in August 2018. VT said she complained to AH occurred shortly after the events that she says preceded that dinner. AH initially said that she could not remember when she received the complaint. In cross-examination, however AH said that she received the complaint when she was living with her grandmother and that she was living with her grandmother in June 2018. Whilst I consider AH to be an honest and reliable witness doing her best to assist the court, having carefully considered the evidence, it is my view that AH was mistaken as to the date that she received the complaint.
The fact that a complaint was made to a close friend and in similar terms to the evidence given in this matter causes me to consider that VT acted consistently with being a victim of the sexual abuse that is the subject of count one.
VT’s account is also supported by her mother’s evidence. This is in the context of the evidence that VT and her mother are not close and indeed no longer living together. SD’s evidence supports VT’s evidence that there were occasions on which the accused visited and spent an hour or so alone with VT in her bedroom albeit with the door open. SD corroborated VT’s evidence about the circumstances surrounding count 1 specifically that the accused and VT spent nearly an hour in her bedroom before coming downstairs requesting to go to Glenelg. SD confirmed that she was not happy with this proposal given she had cooked dinner for VT. She reluctantly agreed. Whilst propositions were put to VT and SD that the three of them were watching television and that SD was lying on the sofa because she felt unwell both denied this. No positive evidence was called to the contrary.
It was also put to VT in cross-examination that the accused did not say to her that she should speak to her mother to convince her mother that he was not a bad person. It is unclear from the cross-examination whether it was being put to VT that she did not call the accused at all. SD’s evidence however makes it plain that the accused attempted to contact SD after her discovery of the photographs. It is apparent from the messages that he had knowledge of the discovery because he had been told by VT. This supports VT’s evidence that there was a call. In the first text message the accused sent to SD, he said, “VT told me about what happened. All I can say is what we did is wrong. You don’t have to worry, I don’t have any feelings for her, I never have. It was a mistake, one that I have regretted for a while now”. His message continues in a similar vein with the accused concluding by saying he felt bad “straight after I sent them”. The content of the subsequent messages is suggestive of someone attempting to minimise his conduct in relation to the sending of the photographs and text message. The tenor and content of those messages is consistent with the substance of the call that VT described, that is the accused claiming not to be a bad person and attempting to convince VT’s mother of that fact.
Taking these matters into account I accept the complainant’s evidence about the uncharged act and the two charged acts beyond reasonable doubt.
Mrs Roberts’ evidence
I have carefully considered the evidence of Mrs Roberts. In short, her evidence does not cause me to doubt the evidence of the complainant.
Mrs Roberts was very much seeking to exonerate her husband. Whilst that is natural, this is somewhat at odds with her declining to speak to the police to put her version of events forward at an earlier stage although I accept that she was under considerable pressure at the time and was under no obligation to speak to police. Of more concern is Mrs Roberts’ attitude towards VT. Mrs Roberts made it plain that she did not believe VT. This coloured her whole evidence. Her evidence sought to put VT in a poor light including blaming VT in part for the photographs and message that the accused sent to her in October 2018.
Mrs Roberts said that she had seen VT behaving inappropriately with the accused. She described VT seeking his attention, tickling him and trying to get a piggy back. Mrs Roberts said she “just got the general vibe that maybe she (VT) had developed stronger feelings for him”.[18] Mrs Roberts said that her husband had also told her that VT was texting him before he sent the communications about things “she was doing to herself or other people”.[19] Mrs Roberts further said that her impression was that the messaging “was one-sided with VT” but that she couldn’t say for sure. Mrs Roberts’ account of these messages is a hearsay one that relies entirely upon her husband’s version of events. Neither the asserted inappropriate conduct or text messaging was put to VT. Even if it was the case, it hardly excuses the communication sent by a 32-year-old man to a 14-year-old girl.
[18] T [101]
[19] T [102]
Mrs Roberts was at pains to minimise the occasions upon which the accused was alone with VT when they visited VT and her mother. Her evidence was not consistent with that of either VT or her mother. Mrs Roberts evidence does not cause me to doubt VT or SD’s evidence on that topic.
Mrs Roberts’ evidence about the dinner in Glenelg does not cause me to doubt VT’s evidence concerning count one. Indeed, aspects of Mrs Roberts’ evidence confirm VT’s account. Mrs Roberts’ evidence that she and her husband were “texting the whole time he was there”[20] appeared tailored to eliminate any opportunity for the accused to have engaged in sexual intercourse with VT as alleged. However, in cross-examination Mrs Roberts conceded that there were only 4 text messages about 5 minutes apart. Mrs Roberts cannot say when the accused arrived at VT’s home and, indeed, she was unable to say when he arrived in Glenelg. Mrs Roberts’ evidence does not therefore contradict the evidence of both VT and SD that the accused was at their home for approximately one hour, including a period of just short of an hour in VT’s bedroom, before departing.
[20] T [95]
Mrs Roberts’ evidence concerning count 2 is inconsistent with that of VT. Mrs Roberts said she could not remember the dates of any of VT’s visits to their house in Aldinga. She had a limited recollection of occasions when VT stayed overnight. Mrs Roberts’ evidence on this topic overall sought to minimise the number of occasions on which VT had stayed overnight at their home. Whatever the number of occasions, VT only alleged inappropriate conduct on two occasions; the uncharged occasion and count 2. Mrs Roberts’ evidence is not, to that extent, inconsistent with VT since on any version there were more than two occasions where VT stayed overnight.
Mrs Roberts’ evidence in relation to count 2 is, again, coloured by her adverse view of VT and her belief in her husband’s denials. Mrs Roberts said that there was one occasion where VT shared a bed with her. The night in question was not anything special. Accordingly, she conceded that her evidence is something of a reconstruction of the events.
Mrs Roberts said that her son was in a bassinette in the bedroom whilst VT said that he was not. VT did however agree that Mrs Roberts was tending to her son regularly throughout the night albeit in a separate room. It is implicit in her evidence that VT says Mrs Roberts was present in the bed, rather than attending to her son, when the accused put his penis in her vagina.
Mrs Roberts maintained in her evidence that the accused slept in the loungeroom and did not enter the bedroom. Mrs Roberts said that her husband was asleep all night but of course she could not know this. She asserted that it was impossible for him to have been in the bed with her and VT and that there was “no physical way that he could have sexually assaulted VT”.[21]
[21] T [106]
The only evidence about the size of the bed came from VT who said it was a similar size to her bed, a queen size bed. Plainly it was possible for Mr and Mrs Roberts and VT to fit in a queen size bed. Equally plainly, for the accused to behave in the way that VT suggests he did, is brazen and risky; it is not however impossible. The experience of the courts is that many offenders commit offences in circumstances where there is a substantial risk of detection. The accused’s admitted conduct forming the basis of count 3 is a prime example of such risk-taking behaviour. Having carefully considered Mrs Roberts’ evidence it does not cause me to doubt VT’s account of the accused engaging in sexual intercourse with her on this occasion.