R v S, JM

[2023] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v S, JM

Criminal Trial by Judge Alone

[2023] SADC 50

Reasons for the Verdict of his Honour Judge Allen 

28 April 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

The accused elected for trial by judge alone on one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation act 1935 (SA).

It is alleged that between 1 January 2015 and 17 November 2020, the accused maintained an unlawful sexual relationship with his stepdaughter by engaging in two or more unlawful sexual acts with her namely: (a) causing her to touch his penis on more than one occasion; (b) touching her breasts on more than one occasion; (c) touching her thighs on more than one occasion; (d) touching her genital area on more than one occasion; (e) rubbing his penis against her body on more than one occasion; (f) inserting his fingers into her vagina on more than one occasion; (g) inserting his penis into her vagina on more than one occasion; (h) inserting a dildo into her vagina on more than one occasion; (i) photographing her whilst he was inserting his penis into her vagina on more than one occasion; (j) kissing her body on more than one occasion; (k) kissing her mouth and face on more than one occasion; (l) performing an act of cunnilingus upon her on more than one occasion; and (m) inserting his penis into her anus on more than one occasion.

Verdict: Guilty

Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 34CB, 34M, 34P, 34R, referred to.
R v J, JA [2009] SASC 401; R v Omond [2022] SADC 62; R v Nieterink (1999) 76 SASR 56; R v M, BJ (2011) 110 SASR 1; R v Bauer [2018] HCA 40; R v MMJ (2006) 166 A Crim R 501; Choudhary v Director of Public Prosecutions [2013] VSCA 325; R v Spencer [2019] SASCFC 70; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v England [2013] SASCFC 79; Murray v The Queen (2002) 211 CLR 193; HML v The Queen (2008) CLR 334; BRS v The Queen (1997) 191 CLR 295, considered.

R v S, JM
[2023] SADC 50

Criminal

Overview

1. S, JM is charged on an Information dated 8 April 2022, and amended on 5 December 2022, with the offence of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).

2. It is alleged that between 1 January 2015 and 17 November 2020 at Davoren Park, Salisbury North and Two Wells, 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 her, namely:

   (a)     causing her to touch his penis on more than one occasion;

   (b)    touching her breasts on more than one occasion;

   (c)     touching her thighs on more than one occasion;

   (d)    touching her genital area on more than one occasion;

   (e)     rubbing his penis against her body on more than one occasion;

   (f)     inserting his fingers into her vagina on more than one occasion;

   (g)    inserting his penis into her vagina on more than one occasion;

   (h)    inserting a dildo into her vagina on more than one occasion;

   (i)     photographing her whilst he was inserting his penis into her vagina on more than one occasion;

   (j)     kissing her body on more than one occasion;

   (k)    kissing her mouth and face on more than one occasion;

   (l)     performing an act of cunnilingus upon her on more than one occasion; and

   (m)   inserting his penis into her anus on more than one occasion.

3. The accused elected for trial by judge alone. For the reasons which follow, I find the accused guilty.

   Elements of the Offence

4. The offence of maintaining an unlawful sexual relationship with a child has four elements:

   1.     the accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred;

   2.     the accused was an adult during the period in which the particularised unlawful sexual acts occurred;

   3.     the complainant was a child and under the age of 17 years during the period in which the particularised unlawful sexual acts occurred; and

   4.     the accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant.

5. Elements one, two and three were not in dispute at trial and are established beyond reasonable doubt. Element four was the issue at trial but it was not disputed that each of the particularised acts would amount to an ‘unlawful sexual act’. The question is whether the prosecution has proven beyond reasonable doubt that the accused intentionally committed two or more of the particularised unlawful sexual acts.

   Preliminary Legal Directions

6. Having conducted a trial by judge alone, it is unnecessary to set out the various standard directions that would be given to a jury. Nonetheless, I remind myself of the following rudimentary principles.

7. The standard of proof is beyond reasonable doubt. The prosecution bears the burden of proof. The accused is presumed to be innocent unless and until the evidence satisfies me that each element of the offence has been proven beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt, or to demonstrate that the accused is probably guilty. The accused is not required to prove that he did not commit the offence with which he is charged.

8. The complainant, KC and her mother, ER gave evidence with special arrangements in place, as did the initial complaint witness AA. I must not allow the fact of these arrangements to influence the weight that I give to the witness’s evidence. I must not draw an adverse inference against the accused as a result of the fact that these arrangements were in place.

9. The accused did not give evidence. The accused’s silence cannot be used against him. I must not draw any inference adverse to him from the choice not to give evidence. I must not treat his silence as an admission, nor must I use it to fill gaps in the prosecution case.

   Background

10. At the time of this trial, the complainant, KC, was 14 years of age. The accused was the complainant’s stepfather during the relevant charged period. At the time of trial, the accused was 45 years of age. The alleged offending is said to have taken place between January 2015 and November 2020 when the complainant was aged between 7 and 13 years of age. The majority of offending is said to have taken place within the environment of the family home. The complainant has a sister who is about a year older. The complainant’s mother, ER, separated from the father of the complainant and her sister in 2008 when the children were very young. The accused was, at the relevant time, described as being the dominant father figure in the complainant’s life.

11. The relationship between the accused and the mother of the complainant commenced in January 2015 when the complainant, her sister and their mother lived at a Davoren Park address. At that time the accused lived at a Salisbury North address. During the early stages of the relationship, the accused would predominantly live with the complainant and her family at the Davoren Park address. Following the marriage of ER to the accused, the family moved in with the accused at his Salisbury North address.

12. In March 2020, the family moved to another address at Two Wells. The Two Wells address was a rural address.

13. The prosecution case is that the accused sexually abused the complainant at each of those three addresses during his relationship with ER. The prosecution case was that the abuse commenced at Davoren Park and escalated following the family’s move to Salisbury North and then to Two Wells.

14. Throughout the charged period, the complainant alleges a multiplicity of unlawful sexual acts were perpetrated against her by the accused.

15. ER and the accused separated on 16 November 2020 and shortly thereafter the offending came to light. At that time the matter was then brought to the attention of Child Protection and police, ultimately leading to the charge being laid.

    The Complainant

16. KC is 14 years old and was born on 9 August 2007.[1] Her evidence was received by way of two pre-recorded interviews, one conducted on 3 December 2020 (Exhibit P1) and another on 15 August 2021 (Exhibit P2). The complainant also gave evidence in court, and was cross-examined.

    [1]     T45.4-7.

17. In the second interview the complainant recalled telling the police officer on the previous occasion that the accused had sexually assaulted her and had been touching her inappropriately since she was younger, which gradually got worse.[2]

    [2]     MFI P3, 15/08/2021, line 22.

18. The complainant gave evidence that at various times, she resided with her mother and sister at a house at Davoren Park, and then with the accused, her mother and sister at a house at Salisbury North and then at Two Wells, and that the charged offending occurred at all three houses.[3] The accused’s son, Mitchell also resided with them for part of the time.

    [3]     T48.1-9.

19. When her mother and the accused first commenced a relationship, her mother resided in Davoren Park and the accused had a house at Salisbury North. Eventually, they moved to Salisbury North with the accused.[4]

    [4]     Exhibit P1, MFI P3, 03/12/2020, line 64.

20. The sleeping arrangements at the Davoren Park house were that the complainant and her sister PC would move between bedrooms 2 and 3, where they each had a single bed. Sometimes they would sleep in the same room. Her mother and the accused slept in bedroom 1.[5] This was confirmed in cross-examination.[6] The complainant also agreed that the door to bedroom 2 was broken.[7]

    [5]     T47.10-18.

    [6]     T80.

    [7]     T81.33.

21. The complainant confirmed in cross-examination the sleeping arrangements at the Salisbury North house. The accused also had a son Mitchell who occasionally stayed at the address, in the room next to bedroom 1 on Exhibit D1.[8] She confirmed that she shared a room with bunk beds with PC, except for when they had an argument in which case she would go into the other room.[9]

    [8]     T84.13.

    [9]     T85.6.

    Incident at eight years old

22. In the first interview with police, conducted at the Gawler Police Station, the complainant was asked why she had come to talk to police. She stated she was there to talk about ‘basically sexual stuff’, and disclosed an incident when she was 8 years old at the Davoren Park house.[10] She said that the accused was often bribing her, and that started when she turned eight.[11] The complainant later elaborated on this and said that her mother was not home at the time. She had gone to the kitchen to get a drink. The accused was standing in his blue dressing gown and asked whether she had seen a penis before. He asked if she wanted to see one, showed her his penis by undoing the tie of his dressing gown, and then asked if she wanted to touch it. She said no and the accused walked away.[12] In evidence in chief, the complainant said this was the first instance of sexual activity with the accused, and that it happened on the couch at the Davoren Park address.[13]

    [10]   Exhibit P1, MFI P3, 03/12/2020, line 64.

    [11]   Ibid.

    [12]   Ibid, line 222.

    [13]   T47.45, 11-12. Indicated on Exhibit P4.

23. The complainant further elaborated on this incident in the second interview with police. She said that the accused had slowly removed his blue dressing gown and asked if she wanted to touch his penis. She said that he put his hand there and made her stroke it, but she didn’t know what to do and did not remember anything else.[14]

    [14]   Exhibit P2, MFI P3, line 364.

24. In the first interview, the complainant said she believed that she was eight years old when this instance occurred as it occurred a few months after her mother and the accused got together. She stated the accused would often look after her and sister when her mother went to work, as she would do shift work.[15]

    [15]   Exhibit P1, MFI P3 lines 247-250, 252.

25. In examination in chief, she said there was another instance at the Davoren Park house on the same couch, where the accused was wearing blue jeans, and removed his belt and pants, grabbed her hand and made her stroke his penis.[16] She did not recall whether this happened any other times. [17]

    [16]   T47.32.

    [17]   T48.2-3.

26. The complainant was asked in examination in chief whether the accused had made her stroke his penis any other times, at the Salisbury North or Two Wells properties.[18]

    [18]   T48.9.

27. In cross-examination the complainant could not recall whether the instances above were on the same occasion or separate occasions.

28. She said that the accused slept-walked at the Salisbury North property and would make her come into his room. He would tell her to tell her sister she had a nightmare while their mum was at work and would make her stroke his penis in his bedroom.[19] She said this also happened at Two Wells.[20]

    [19]   T48.12-16.

    [20]   T48.17-18.

29. The complainant said that the accused would also make her touch his penis in his three-seater ute, on the way to school, on the way to the Gawler Recreation Centre, and on the way to the service station where he would buy her Monster energy drinks.[21] The accused would be driving the ute and she would be in the middle seat.

    [21]   T48.21-26.

    Tights and touching

30. The complainant in the first interview stated that after moving to the Salisbury North house, the accused gradually began to touch her sexually, on ‘my boobs, my down there and my bottom’.[22] When asked to explain more about the touching, the complainant said that there was boob touching, and leg caresses which did not happen when she was younger, aside from the time she showed her his penis.[23] He would gradually give her hugs and then move his arms, or rub her back.[24] The complainant could not recall the first time the accused touched her breasts, but remember it was sometime ago, maybe two years.[25] She could not recall the last time he had done so.[26]

    [22]   Exhibit P1, MFI P3, 03/12/2020, line 64.

    [23]   Ibid, line 280.

    [24]   Ibid, lines 282-284.

    [25]   Ibid, lines 285-286.

    [26]   Ibid, line 296.

31. The accused would make comments about her gymnastics leotards and say she looked sexy, so she stopped doing gymnastics as she felt uncomfortable.[27] The complainant was asked further about gymnastics in cross-examination.[28] It was suggested that she never wore a leotard to gymnastics, and that she only wore a t-shirt, depicted in Exhibit D2. The complainant agreed.[29] It was suggested that she stopped gymnastics because she wanted to go skating more. She said this was part of the reason, but also because she didn’t want to do gymnastics anymore.[30]

    [27]   Ibid, line 64.

    [28]   T98.

    [29]   T99.1-6.

    [30]   T100.28-36.

32. The complainant was asked about the school uniform in cross-examination. She confirmed that the accused would tell her to wear tights for two reasons, that it was cold and because he liked them.[31]

    [31]   T90.25.

33. It was suggested that the leg touching began because the accused went to change gears and accidentally touched her leg. The complainant denied this and said he didn’t accidentally touch her leg. She denied that the accused never touched her inappropriately in the car.[32]

    [32]   T91.1-18.

    Bribing

34. The complainant disclosed that the accused would bribe her so that he could touch her legs, by buying her Monster energy drinks. She said she agreed as she didn’t think he would touch her in the ways that he did.[33] The complainant confirmed this later in the first interview.[34] She said she understood touching to be a hug and kiss on the cheek, but it meant touching her legs near her genitals.[35] He would touch her legs and gradually worked his way up to her vagina. She said this happened more than one time, but she could not recall how many.[36]

    [33]   Exhibit P1, MFI P3, 03/12/2020, line 94.

    [34]   Ibid, lines 629-632.

    [35]   Ibid, line 634.

    [36]   Ibid, lines 97-98.

    Recent leg touching

35. The complainant was asked about the last time the accused had bribed her with Monster energy drinks. She said it was a few weeks earlier on a Friday. She would go night skating at the Gawler Recreation Centre with her friends and would have a Monster drink before going. The accused would always buy her a drink, and a few times would ask if he could touch her leg.[37] The accused would pretend the complainant’s leg was a gear shift, and would work his way up her leg in a joking way, until his hand was towards her genitals.[38] The accused would start to caress and rub her vagina and she would tell him to stop.[39] She confirmed this happened a few Fridays earlier in his white work ute.[40]

    [37]   Ibid, lines 101-104.

    [38]   Ibid.

    [39]   Ibid, line 114.

    [40]   Ibid, lines 116-118.

36. She said that the incident when she was going to skating is when this happened in the car and that it had happened a few times.[41] She thought she was wearing shorts and a shirt, and confirm the accused was caressing her leg, up to her vagina on top of her clothes.[42]

    [41]   Ibid, lines 121-124.

    [42]   Ibid, lines 121, 129-130, 134.

37. When asked to explain what you use your vagina for, she stated that you use it for weeing and older girls use it for sexually active things with their partners.[43]

    [43]   Ibid, line 138.

38. Later in the interview, the complainant confirmed an incident in the car where the accused had rubbed her on the vagina.[44]

    [44]   Ibid, lines 641-642.

39. She confirmed the last time it happened was before the accused and her mother split up.[45]

    [45]   Ibid, lines 657-658.

    Bedroom

40. The complainant was asked by the police officer about any other time that the accused had rubbed her vagina over her clothes. She stated she was a deep sleeper, and he would rub her back when she was sleeping as she had injured her back and would ask him to.[46] The complainant described a time she had asked her mother for a massage. The accused came instead, and sat on her and massaged her back. The complainant said it felt like he was trying to rub his penis near her bottom.[47] He was wearing blue jeans at the time. She could not remember when this happened, but recalled that it happened more than once. In examination-in-chief, the complainant confirmed this happened on more than one occasion, at both the Salisbury North and the Two Wells houses, in her bedroom and occasionally in his room.[48] She believed the accused had clothing over his penis when he did this.[49]

    [46]   Ibid, line 150.

    [47]   Ibid.

    [48]   T52.34-35, 52.37.

    [49]   T53.9-16.

41. She believed this occurred in around September of that year, being 2020, as it was close to her mother and the accused’s wedding anniversary.

42. In the first interview with police, the complainant described an occasion where the accused rubbed his penis on her during a massage that occurred in her bedroom at the Germantown Road address, and an occasion in the lounge room.[50]

    [50]   Ibid, line 162.

43. On the occasion in her bedroom, she had a sore back and asked her mother for a massage. Her mother was on the phone so the accused came in to give her a massage.[51] The complainant said she was grateful for the massage but didn’t want the accused to be ‘wedging his boner near [her] butt’.[52] The accused would tell her to hold still and would move back and forth.[53] She said that that occasion didn’t last for long as she asked the accused to get out and he did.[54] She said there were other occasions where he didn’t listen and would try to put his fingers inside her or kiss her.[55]

    [51]   Ibid, line 164.

    [52]   Ibid, line 172.

    [53]   Ibid, line174-178.

    [54]   Ibid, line 184.

    [55]   Ibid, line 186.

1. The complainant described in evidence-in-chief another occasion where the accused would say that she had a nightmare and had to sleep in his bedroom.[56] He would lay her on her stomach, sometimes with her head over the pillow, and then would move his hands down her back toward her bottom. Sometimes he would have no clothes on, as he was going to put his penis into her vagina.[57] She said that most of the time the accused would flip her onto her back, squeeze her boobs and say how big they had gotten, and touch her boobs down to her vagina.[58] He would often lick and kiss her vagina.[59]

   [56]   T53.26-29.

   [57]   T53.29-34.

   [58]   T53.34-37.

   [59]   T53.37-54.4.

2. The complainant could not recall a specific occasion where this occurred at the Salisbury North house but that there were occasions at both the Salisbury North and Two Wells houses where the accused would give a massage that would lead to him putting his penis into her vagina.[60]

   [60]   T54.14-19.

3. She described an occasion at Two Wells in the loungeroom, where she would lay on a foam mattress on the floor, in front of the L-shaped lounge.[61] Her mum was sleeping on the long part of the L, and the accused was on the small part. He didn’t fit, and came and laid with the complainant on the mattress and cuddled her.

   [61]   T54.26-32.

4. She confirmed there were occasions when the accused would give her a massage, that would lead to him putting his penis in her vagina and that this happened more than once at Salisbury North and Two Wells.[62] At Two Wells it happened in the L-shaped lounge room on the foam mattress that she would lay on – her mum was sleeping on the long part of the L and the accused was on the small part but he didn’t fit so he came down and laid on the mattress with her and cuddled her.[63] She confirmed there was more than one occasion that the massage lead to sex.[64] The complainant also described an occasion in the living room in the first interview with police. It is not clear whether this was the same occasion as described in court.

   [62]   T54.14-19.

   [63]   T54.26-32.

   [64]   T54.35-37.

5. She said she sat with the accused on the mattress on the floor as she loved him, but did not love his behaviour. Her mother was fast asleep, and the accused started to touch her and caress her boobs but without massaging her.[65] She said she told the accused to stop but he didn’t.[66] She recalled it was hot in the house and she was wearing a singlet and shorts or underwear.[67] She confirmed she then moved up near her mum to lay on the couch, to sleep.[68] Eventually the accused went outside for a cigarette.[69] The complainant described feeling scared, and that she told the accused to stop.[70] The accused did not say anything to her, and continued he would then tell her to relax. The complainant said she went to sleep and tried not to cry.[71] In cross-examination the complainant said that this lasted for about 5 minutes.[72] She said it turned into the accused touching her vagina and then licking and kissing her vagina.[73] The entire incident lasted for about 15 minutes to half an hour.

   [65]   Exhibit P1, MFI P3, 03/12/2020, line 188.

   [66]   Ibid, line 190.

   [67]   Ibid, line 192-194.

   [68]   Ibid, lines 195-200.

   [69]   Ibid, line 200.

   [70]   Ibid, line 208.

   [71]   Ibid, line 218.

   [72]   T102.9-10.

   [73]   T103.8-11.

   Nightmare

6. In her first interview, the complainant also described an incident where she had a nightmare and got into the accused’s bed as she was scared. The accused started to touch her boobs and comment on how big they were. He asked if she wanted to do anything and she said that she just wanted to sleep.[74] She tried to sleep and recalled the accused trying to put his fingers inside her.[75] She told the accused to stop and then she fell asleep. The complainant did not know what happened while she was asleep but recalled the accused kissing her and her body, and feeling sore the next morning.[76]

   [74]   Exhibit P1, MFI P3, 03/12/2020, line 70.

   [75]   Ibid.

   [76]   Ibid.

7. The complainant was asked to elaborate on this later in the interview. She recalled she was laying in the accused’s bed after having a nightmare. She did not know if he was asleep but recalled his eyes were closed; though he sometimes had his eyes closed and would talk.[77] After he had gone for a cigarette, he woke her up and asked if she wanted to do anything. She said that she wanted to sleep but the accused began touching her.[78] The accused caressed her boobs, arms, and back as she was laying on her stomach over the pillow.[79] The complainant confirmed she woke up sore in the morning, near her left breast and vagina, which she described as not between her legs but higher, on the outside.[80]

   [77]   Ibid, lines 489-492.

   [78]   Ibid, lines 500-502.

   [79]   Ibid.

   [80]   Ibid, line 518, 524.

8. The complainant estimated this incident was in 2020, before her mother’s birthday in November. She estimated it was sometime in September.[81]

   [81]   Ibid, line 596.

9. The complainant was asked about nightmares in cross-examination. She confirmed that she would sometimes go into her sisters bed, but would also go into bed with her mum and the accused. She said the accused would want her on his side or in the middle.[82] She said this occurred at the Salisbury North house.

   [82]   T93.7.

   Incident at Two Wells

10. The complainant described an incident at the Two Wells house when the accused tried to put his fingers inside her. She was laying with him in his bed, as her mother was at work and she didn’t want to be in her room alone.[83] The accused took her pants down, spat on his fingers and tried to insert them into her vagina.[84] The complainant told the accused to stop; he didn’t do so immediately but did after she pushed his hand and she started crying.[85] The complainant confirmed the accused had pulled off her pants, and that her underwear came down with them. She thought she was wearing pyjama shorts and that the accused threw both onto the floor.[86] The complainant could not recall what the accused was wearing but believed it was trackpants and jocks.[87] She was wearing a shirt which the accused had asked to remove but she did not.[88] The accused had told to her spread her legs open, she said no and kept her knees together. The complainant confirmed the accused did not get his fingers into her vagina as he stopped when she started to cry, so that her sister PC would not hear.[89] The complainant stated the accused spat on his fingers before trying to penetrate her vagina, and that she held his hand and tried to pull it away. She later confirmed that his fingers went slightly inside her vagina, and indicated this to the police officer.[90] She did not think she was hurt or there were any markings, but did not look.[91] The complainant confirmed she told the accused to stop, and tried to push his hand away and then rolled over and tried to get off the bed before she started crying and the accused stopped.[92] She said that when it stopped, she grabbed her shorts and underwear and went to her room.[93]

    [83]   Exhibit P1, MFI P3, 03/12/2020, lines 297-300.

    [84]   Ibid, line 302.

    [85]   Ibid.

    [86]   Ibid, line 308.

    [87]   Ibid, line 318.

    [88]   Ibid, line 322.

    [89]   Ibid.

    [90]   Ibid, lines 353-358, line 360.

    [91]   Ibid, lines 391-396.

    [92]   Ibid, lines 367-368.

    [93]   Ibid, lines 387-390.

11. The complainant was asked when this event occurred. She believed it was between her birthday in August, and September.[94] She was certain it was after her birthday, because the accused had said he would only give her a birthday kiss and kissed her on the cheek. She said it was at that point in time that the accused started kissing her.[95]

    [94]   Ibid, lines 399-402.

    [95]   Ibid, lines 402-412.

    Kissing down her body

12. The complainant indicated where the accused would kiss her, and then then kiss down her body. She would tell him to stop and push his arm. She said she walked away, and said it wasn’t right, because he was her stepdad. The accused said ‘and?’, and the complainant said they were basically going to be related.[96] The complainant said she ran to her room, and cried. She wanted to tell her mother but the accused told her not to. The complainant confirmed that happened in 2020.[97] She thought he had had kissed her whole body just the one time, when she was in his bed. The accused kissed her while she was clothed from her lips down to her toes, and she felt that she was pinned and could not move.[98] She indicated that he got to around her waist or bellybutton before she told him to stop. She recalled he had stopped but wanted to keep going, and then gave her a big hug.[99] The complainant told the police officer that she thought the accused was going to stop all the sexual things at the time, but he didn’t.[100] She said the sexual activity continued until around November, when the accused and her mother broke up.[101]

    [96]   Ibid, line 414.

    [97]   Ibid, lines 417-418.

    [98]   Ibid, lines 419-424.

    [99]   Ibid, lines 438-440.

    [100] Ibid, line 454.

    [101] Ibid, line 462.

13. The complainant could not specifically recall the last time the accused did anything to her, however she recalled it involved him hugging her and rubbing his hands on her back.[102]

    [102] Ibid, lines 463-464.

14. The complainant elaborated on this in examination in chief. She said the accused would kiss her on the lips and cheek, and put his tongue in her mouth. She recalled that it would feel disgusting.[103]

    [103] T55.12.

15. She confirmed there were multiple occasions when the accused would put his mouth and tongue on her vagina. She indicated how the accused would spit on his fingers, rub his fingers and then put them in her vagina and around her vagina.[104]

    [104] T56.18.

    Spitting on fingers

16. There was another time when she was laying with him when her mum was at work and he spat on his fingers and was rubbing his fingers, and then that’s when he tried to put his fingers inside and she told him to stop until she started crying, and then he stopped and she went out, grabbed her stuff, rolled over and went to her own bed.[105] This was the same time when he starting kissing her and told her to relax.[106]

    [105] Exhibit P1, MFI P3, 03/12/2020, lines 544-546.

    [106] Ibid, line 548.

17. He was doing the same thing and her mum was asleep. She wanted to tell her and she hadn’t told her because he told her not to and so he had kept on touching there and she told him to stop and he kept on touching but then he stopped.[107] He was like ‘oh don’t tell your mum, this is our little secret’ and she said ‘is it a good secret or a bad secret’ and he said ‘oh it depends how you take it’ and then she was like ‘ah okay’.[108] This happened sometime this year (2020) and he had told her not to tell her mum since when he showed her his penis.[109]

    [107] Ibid, line 570.

    [108] Ibid, line 574.

    [109] Ibid, line 578.

18. The complainant was asked whether the accused had ever done anything to her with his penis. She said he had not that she knew of, as she was a deep sleeper. There was an occasion she woke up and was sore, but was not sure if it had happened.[110]

    [110] Ibid, line 628.

19. When asked if she told anyone about what he had been doing to her, she stated only her mum, but she didn’t remember the date, but it was only recently – maybe a week or two ago.[111]

    [111] Ibid, lines 669-676.

    Bribing and looking at the stars – the ute incident

20. The complainant described an occasion when AA and IW had been at her house and had asked for Monster energy drinks. The complainant went with the accused to get them, and he asked if they could go into the paddock after the girls (AA and IW) had left.[112]

    [112] Exhibit P2, MFI P3, line 434.

21. After AA and IW had gone home, the accused took the complainant out to the paddock in the ute under the guise of watching stars. She said he then started to touch her and take her clothes off.[113]

    [113] Ibid, line 76.

22. The complainant said that the accused started to touch around her breasts and vagina. She didn’t recall what she was wearing, but thought it was a onesie, with a crop top and underwear underneath.[114] The accused asked her whether she remembered the deal when touching her, and the complainant asked whether they could go back. She thought she was 12 or 13 and did not want the accused to touch her inappropriately.[115] The complainant said that the accused touched her on top of her underwear and underneath. He put his fingers inside her vagina and then moved them. She did not know how long he did this for.[116] The accused then slowly took his pants off, put his penis in her vagina, and then moved it around, the same as he had done with his fingers.[117] The complainant said they had moved from the bonnet of the ute, into the car across the three seats.[118] The accused was laying on top of her. She said that she wasn’t wearing anything, as the accused had taken her crop top and underwear off once they got into the car.[119] She thought the accused was wearing his shirt and had taken his jeans off, down to about his knees.

    [114] Ibid, line 92.

    [115] Ibid, line 110.

    [116] Ibid, lines 129-136.

    [117] Ibid, line 148.

    [118] Ibid, line 154.

    [119] Ibid, line 168.

23. The complainant said that after the accused pulled out, ‘white stuff’ came out of his penis onto the grass and the accused got out of the car.[120] The complainant was asked by the interviewer if she knew what the white stuff was, and said ‘I don’t really know if this is the right thing but um what’s it called? Cum?’[121]

    [120] Ibid, line 186.

    [121] Ibid, line 194.

24. After it was finished, the accused thanked the complainant for doing the deal, referring back to the Monsters he had bought them. They then went to the house and didn’t say anything.[122] The complainant was asked when this happened. She believed her mother was at work, and it was a week after IW and AA came over. She thought it was in September 2020, as it was around IW’s birthday.[123]

    [122] Ibid, line 203-204.

    [123] Ibid, line 206, 2150224.

    ‘Rape’

25. The complainant was asked by the police officer what she meant by the word rape, as she had used it in the first interview. The complainant said that ‘rape is when they do something without your consent or permission and trying, you don’t want it to happen at all and they do it and continually do it without your permission and you don’t want it to happen’.[124] The complainant clarified that by ‘it’ she meant putting his penis into her vagina.[125] The complainant told the police officer she thought that there were no other things she would call rape, and that things such as touching the breast would be sexual assault. The complainant was asked what she would call what the accused had done to her. She said rape.[126]

    [124] Ibid, lines 235-236.

    [125] Ibid, line 238.

    [126] Ibid, lines 247-248.

    Condoms

26. The complainant was asked if she knew what a condom was. She said that she used it at school in sex education on a banana, and that it was for stopping babies.[127] She said that she hadn’t used one before, but the accused had done so at the Salisbury North house.[128]

    [127] Ibid, lines 249-250.

    [128] Ibid, lines 259-260.

27. She described an incident on the couch in a rumpus room, where the accused had done the same thing he did in the paddock by touching her, taking her clothes off, and then removing his pants but keeping his shirt on, but had put the condom on first.[129] He hadn’t said anything to her while putting it on. She did not see where the accused got the condom from but recalled seeing a packet in the accused’s underwear drawer previously.[130] She later clarified this was at Two Wells in a large room separate to the house. She believed it was before August of 2020, and related it to an occasion where the accused said he wanted to give her a birthday present, but didn’t’ do it at that time as he and her mum were fighting. She believed she was 12 at the time.[131]

    [129] Ibid, lines, 266-270.

    [130] Ibid, line 284.

    [131] Ibid, line 290-295.

28. In examination-in-chief, the complainant was asked about the accused putting his penis in her vagina at the Two Wells house. She could not remember how old she was.[132] Two aerial maps of the Two Wells address were tendered as Exhibit P5. The complainant identified on the map where the rumpus room, and the paddock were.[133] A plan the complainant had drawn of the rumpus room was tendered as Exhibit P6.[134] The complainant explained that the accused would put his penis inside her vagina on the brown couch and that this would happen most of the time when her mother was at work or was inside cooking dinner, mainly at night time.[135] Her sister would be home at the time in her bedroom. The complainant could not recall how often the accused put his penis inside her in the rumpus room, but she knew it was more than three times.[136] The complainant was asked whether on those occasions, there was ever a time that she thought the accused could have been asleep. She said no.[137]

    [132] T49.10.

    [133] T50.

    [134] T51.

    [135] T51.24-52.6. Marked ‘KRC’ on Exhibit P6.

    [136] T52.21-25.

    [137] T52.26-28.

    Incidents at Salisbury North/green woodchipper

29. In the second interview with the police, the complainant was asked about whether anything happened with condoms at the Salisbury North house. She described an occasion where she brought a mattress to the end of the queen bed that her mother and the accused would sleep on, as she would get scared sleeping in her own room.[138] The complainant drew where this occurred under cross-examination.[139] Her mother was asleep and the accused said that he would come to cuddle her. The complainant was laying down and the accused came behind her and then unzipped the back zip of her onesie and removed her underwear. He undid his jeans and pulled them down to his knees.

    [138] Exhibit P2, MFI P3, 15/08/2021, line 306.

    [139] T95.

30. The accused then spat on his fingers and put them on her vagina. He then put his penis inside her vagina with a condom on. The accused was behind her, and the blanket was on them so her mother couldn’t see.[140] The accused continued to move until he finished and then put the condom under the bed. She did not see him remove it the next morning but could see that it was not under the bed. The complainant believed she was either 11 or 12 when it happened. She later clarified that she had turned 12, as she recalled that she had a Tik Tok account, that her mother had got her fake nails and that the accused had taken her to get her nose pierced for her birthday.[141]

    [140] Ibid, lines 306-332.

    [141] Ibid, line 352.

31. In cross-examination the complainant said that the whole incident roughly went for about 10 minutes. The positions changed. She could not recall if her onesie was off entirely, but believed she had a crop top underneath.[142]

    [142] T133.

32. In examination in chief, the complainant was asked whether this incident involved a green chipper that the accused owned as part of his business.[143] She confirmed that after the accused had sex with her and put the condom under the bed, he went outside to have a cigarette. She went with him. He put on a blue dressing gown and told her to follow him behind the chipper. The complainant said that the accused took down her pants or onesie and wet his fingers and then lifted her leg up so that it was on the ledge near the tyre. He spit on his hand and put it onto his penis and then put his penis inside her.[144]

    [143] T57.18.

    [144] T57.18.

33. The complainant confirmed that these two incidents took place on the same night when her mother was in bed sick.[145] She said that at some point her mother came outside to see where they were, and called their names. The accused pulled his pants up and they returned to the house. He told her mother they were looking for something.[146]

    [145] T59.

    [146] T60.2.

34. The complainant was asked to indicate where the events near the chipper took place, by reference to Exhibit D3. She indicated where the shed was and where the chipper was.[147]

    [147] T131.

    Pregnancy test

35. The complainant was asked in examination-in-chief if she knew what a pregnancy test was. She said she did, and described what a pregnancy test looked like and where it could be purchased.[148] The complainant was asked how she knew this, and said it was because her mother and the accused were trying for a baby and her mother had shown her one.[149]

    [148] Exhibit P1, MFI P3, 03/12/2020, line 368.

    [149] Ibid, line 369-374.

1. The complainant was asked whether she had ever taken a pregnancy test. She described an occasion where the accused had told her to take one, because he thought he had gotten her pregnant.[150] She said the accused had told her he wanted to have a baby with her, and that he loved her like he loved her mum. She described that as ‘gross’ and that she was confused.[151]

   [150] Ibid, line 376.

   [151] Ibid, line 380.

2. The complainant said that the accused had watched her pee on the pregnancy test, and then took it from her. He waited until the test returned a negative result. The complainant thought she was 12 at the time, as it occurred at the Two Wells house and they were there when she turned 13.[152] The complainant said the accused asked her to take the pregnancy test, because he ‘came in me, the white stuff’.[153] She did not think she told anyone else she had taken a pregnancy test.

   [152] Ibid, line 414.

   [153] Ibid, lines 421-422.

3. The complainant was asked whether she told AA that she had taken a pregnancy test. She said she did not remember telling her, and did not think she did, but that she may have. The complainant agreed she was in a relationship with someone else at the time but that she had not had sex with anyone other than the accused.[154]

   [154] Ibid, lines 594-596.

4. Under cross-examination, the complainant agreed she hadn’t told anyone she took a pregnancy test.[155] She said she got her period a bit before her 13^th birthday. The pregnancy test was after her mum bought them but before they broke up. She denied that she took the pregnancy test because of something that happened with a boy at school.[156]

   [155] T121.18.

   [156] T123.24.

   Physical violence

   Black eye/running away

5. The complainant was asked whether the accused had ever been physically violent. She described an occasion where he gave her a black eye at the Salisbury North house and pushed PC into a fence.[157] Their mother was at work and there was an argument as PC and the complainant hadn’t cleaned the rooms, so they decided to run away. The accused grabbed hold of the complainant’s sister on her neck and chest, and then look as though he was about to punch her. She said she saw him punch her int the chest, and then slap her. He then chased the complainant. Her and PC hid and then packed their things to run away. Their mother eventually came home and found them.[158]

   [157] Exhibit P2, MFI P3, 15/08/2021, line 476.

   [158] Ibid, line 480.

6. In cross-examination the complainant confirmed that the accused gave her a black eye. She said that she hit him with the shovel to the back of the head because he was punching her sister.[159]

   [159] T138.

7. The complainant described another instance of violence, where they were at Bunnings and there was a dispute about the accused’s membership discount. The accused was going to chop up his membership card, when the complainant’s mother said ‘don’t be stupid’. The complainant repeated what her mother had said, but the accused thought she had called him stupid. She said that he slapped her across the face, and that they called the police. The police attended and spoke to them in Bunnings.[160]

   [160] Exhibit P2, MFI P3, 15/08/2021, line 490.

8. In cross-examination it was put to the complainant that charges were laid and an intervention order was put in place after that incident.[161] She agreed there was. She was not sure whether the relationship soured after that incident.[162]

   [161] T156.

   [162] T157.

   Police

9. She confirmed she had called the police another time.[163] She referred to the time when the accused pushed PC into a fence. She did not remember much of the incident, but recalled her mother and the accused told them not to call the police, but she did anyway.[164]

   [163] Exhibit P2, MFI P3, 15/08/2021, lines 491-492.

   [164] Ibid, line 494.

10. It was suggested in cross-examination that the complainant told police the accused pushed PC, but that what actually happened was that she fell over. The complainant denied this.[165]

    [165] T138.

    Discussions with the accused about sexual/personal things

11. The complainant was asked whether she ever spoke to the accused about sexual or personal things. She said she had spoken to him when she got her period, as her mother was at work.[166]

    [166] Exhibit P2, MFI P3, 15/08/2021, line 496.

12. She said she had told him before that she did not want to have sex with him, and that made the accused cry. She said she had tried to kick her legs, and push him off her, but he would continue. The complainant said she was scared of the accused.[167] She said she had told her mother she was scared of him, but her mum didn’t understand. Her mother was doing night shifts, and it would often occur during that time.

    [167] Ibid, line 502.

    Dildo

13. The complainant confirmed that the accused would buy her Monster energy drink drinks and that he got her nose pierced.[168] She said the accused also convinced her mother to buy her a dildo.[169] He purchased it from eBay, and gave it to her. She did not know what he told her mum. It was purple and came in a black lace bag with purple writing. She remembered telling her mum that she did not want the dildo, but her mum said she would keep it in her drawer until she wanted it.[170]

    [168] Ibid, lines 519-522.

    [169] Ibid, line 524.

    [170] Ibid, line 526.

14. The complainant told the police officer she thought the accused wanted to put the dildo in her vagina. He did so on one occasion at Two Wells, on her bed, where the accused put lube on the dildo and then put it in her vagina and moved it around as though it was his penis.[171] She said the accused then put his penis in her vagina without a condom, and then ejaculated onto a towel.[172]

    [171] Ibid, line 534.

    [172] Ibid, line 570.

15. The complainant said she never used the dido without the accused, and when they moved to Panorama she threw it out.[173]

    [173] Ibid, lines 575-576.

16. The complainant was asked whether the accused ever used the dildo on himself. She said he had another one that she thought he and her mother shared. It was black, and she saw the accused use it on himself and put it into his bottom with lubricant. He did not say anything to her on that occasion and she left the room.[174]

    [174] Ibid, lines 584-588.

17. In examination in chief, the complainant was asked whether the accused used the dildo on her once or more than once. She could not recall. She was asked whether on the occasion she recalled, she had any reason to believe the accused may have been asleep. She said no.[175]

    [175] T60.33.

    Oral contraceptive pill

18. The complainant told the police officer that the accused was trying to convince her mother to put her on the pill so that she wouldn’t get pregnant.[176] She would tell her mother she didn’t want to be on the pill. Her mother would ask her if she was having sex, but the complainant didn’t tell her.[177] The complainant denied in cross-examination that this was because of a boy at school.[178]

    [176] Exhibit P2, MFI P3, 15/08/2021, line 524.

    [177] Ibid.

    [178] T124.

    Photographs

19. In examination in chief, the complainant was asked whether there was an occasion that the accused took photographs of her. She described an occasion in the accused’s bedroom at the Salisbury North house. PC was home at the time and their mother was at work. She was laying on her back with her head on the pillow. The accused was laying with his penis in her vagina and got his phone, and asked whether the complainant wanted to ‘see how deep I am in you’.[179] The accused took a photograph of his penis in her vagina, showed it to the complainant and then immediately deleted the photo. She believed he took around three photographs.

    [179] T61.

20. The complainant was asked about this topic in cross-examination. She agreed that it first came up because she told her mother about the photos, and her mother contacted the police. She denied telling her mother that they were videos and not photos.[180] She said she didn’t tell police about the photos before because she was uncomfortable. She confirmed she ended up with the phone that the accused took the photos on, but did not give it to police because it was her privacy.[181]

    [180] T124.

    [181] T125.

    Cross-examination

21. In cross-examination it was put to the complainant that in the first interview with police she did not say that the accused licked her vagina. It was put that the first time she mentioned that the accused licked her vagina in the loungeroom at Two Wells was in court that morning. She said she had mentioned it before. It was suggested that she was making it up as she went along, which she denied.[182]

    [182] T108-109.

22. The complainant was asked why she had added incidents in her statements, and in the second interview, that she did not mention in the first interview. She said she was very uncomfortable, and didn’t want to tell people about it. She said she had been told not to tell anyone. She denied that she was adding to her story because she was making it up.[183]

    [183] T115-116.

23. The complainant was asked where she saw condoms in the house. She said only in the accused’s bedside drawer. She said she had seen a lot of sex toys in the accused and her mother’s room at the Salisbury North house, in a bag in the wardrobe.[184] She denied that her mother had told her the accused used to insert a black dildo into his anus before the second interview.[185] The complainant denied that her mother bought the purple dildo. She agreed that her mother saw her throw out the dildo and that neither of them thought to give it to the police.[186]

    [184] T116-117.

    [185] T119.2-5.

    [186] T120.

24. The complainant was asked about whether she knew that the accused would dress in women’s clothing. She said he would have clothing that he would wear around the house, and that he liked to wear stockings as well.[187]

    [187] T134.

25. It was suggested that the accused liked tights because he liked wearing them and that he wouldn’t make sexual comments about that. The complainant denied this.[188]

    [188] T135.7-12.

26. The complainant was asked about whether they had chores to do around the house. She agreed they had chores, mostly at the Two Wells house which included dishes and feeding the animals. It was suggested that the accused bought the complainant Monster drinks to encourage her to clean her room, and would also buy lollies and ice cream for PC for the same reason. The complainant denied this.[189]

    [189] T136.19-24.

27. It was put to the complainant that she told police in the first interview that she had only told her mother about what had been happening, and that she only told them she had told AA first in the second interview. She agreed. The complainant agreed she had told AA that the accused had been having sex with her since she was eight. She did not remember telling AA about the pregnancy test or that it was due to a boy at school. She did not recall whether she told AA that the accused had performed anal sex with her. It was put that had never happened. She said it had. It was put that she told AA the accused never used a condom. She did not recall.[190]

    [190] T141-142.

28. It was suggested to the complainant that she had never mentioned anal intercourse in other statements or interviews. She agreed she hadn’t.[191]

    [191] T156.24-28.

    Complaint

29. In the second interview with police, the complainant also disclosed that she had told her grandmother about the accused touching her on the leg.[192] She told her that he had been touching her and PC’s legs on the way to school, but denied that he had done anything else, because she was afraid something would happen to her family. The complainant confirmed this in examination in chief.[193]

    [192] Exhibit P2, MFI P3, 15/08/2021, line 434.

    [193] T62.

30. She confirmed she did not recall how long after telling her grandmother she told AA what happened.[194]

    [194] T63.14.

31. In the second interview with police, the complainant told the police officer that she had told her friend AA what had happened, as AA had been through something similar. She said the accused would touch her and her sister’s legs in the car on the way to school,[195] when AA or another friend IW were in the car.[196]

    [195] I note here the prosecution disavowed any reference upon the alleged touching of the legs of the sister as discreditable conduct, T368.

    [196] Exhibit P2, MFI P3, 15/08/2021, line 58.

32. She said she told AA before telling her mother, and estimated it to be near her birthday the year prior, which was in August. They were at a sleepover, and the complainant said she had told AA everything the accused had been doing. She explained ‘everything’ to mean the inappropriate touching in the car, and the bribing with Monster drinks.[197]

    [197] Ibid, line 74.

33. In examination in chief, the complainant was asked what she told AA in the first conversation. She said she started telling her about the accused touching her inappropriately, and that it started with the leg touching then became raping her.[198] She said she told AA because she was her best friend and she trusted her.

    [198] T63.17.

34. The complainant said that she next told her mother and may have told IW but was not sure.[199] The complainant said she told her mum on the way home from a trip to see her grandmother after the accused had separated from the accused. She chose to tell her mum because they were breaking up and she thought it would mean that her mum and the accused would not get back together.[200] It was put to the complainant in cross-examination that she made up the allegations because she wanted the accused and her mother to break up. She denied this.[201] She also denied telling the accused that her mother was having affairs with other people.

    [199] T63.30.

    [200] T64.8.

    [201] T143.13-17.

35. I interpolate at this point that this evidence is not admissible as complaint evidence pursuant to s 34M of the Evidence Act 1929 (SA) (‘EA’). This evidence was relevant to the question of motive to lie on the defence case.

    ER

36. ER is the complainant’s mother. She gave evidence at trial as to the circumstances of her relationship with the accused. She met the accused in early 2015 and they were married in September 2017. The accused had two children as a result of an earlier relationship.

37. ER said that when the relationship commenced, she was living at a house in Davoren Park with her children and that the accused resided at Salisbury North, though he would often stay at her house.[202] In around July 2017, ER sold the house at Davoren Park and her and her daughters moved into the accused’s house in Salisbury North.[203] In around February/March 2020, they moved to a farming property in Two Wells.[204]

    [202] T184.

    [203] T185.19.

    [204] T186.6.

38. ER is employed as disability support worker. That role often involved shift work. When she first met the accused she would do five sleepover shifts per fortnight, which required her to stay from 2pm to 6am, or occasionally to 11am.[205] The children were first looked after by a babysitter or ER’s mother, though after six months of the commencement of the relationship, the accused became responsible for looking after KC and PC, so that ER could work.[206]

    [205] T186.28-38.

    [206] T187.9.

39. In early 2020, ER changed work arrangements to work casually, so that her shifts were mainly during the day. In 2020, she did approximately 20 sleepover shifts.[207]

    [207] T198.7.

40. ER gave evidence that when she was working a sleepover, or an early shift, the accused would be responsible for getting the girls to school.[208]

    [208] T198.37.

41. At the time the relationship commenced, the accused was self-employed as an arborist and his hours would fluctuate.[209]

    [209] T199.6-11.

42. She gave evidence that the accused had equipment including a chipper, as part of his business. He had a ute which he kept near the house, and would use throughout the relationship. ER gave evidence as to the seating arrangement of the ute, which had three seats – with the middle seat being small and requiring the children to put their legs either side of the gearstick.[210]

    [210] T199.35.

43. ER also gave evidence as to the complainant’s schooling. She confirmed there were occasions when the complainant would stay home from school with the accused, including occasions when PC would go to school and KC would not.[211]

    [211] T200.

44. ER described that the accused appeared to favour the complainant. They had a close relationship and he would single her out to do things only with her, such as shopping, driving, and would bribe her with ice cream to go to the petrol station with him.[212] He would often buy her clothes, including a red sparkly leotard and a black and white mini skirt. ER did not believe the accused did such things with PC. In cross-examination, ER confirmed the accused did not take PC to the petrol station to get ice cream.[213] He would originally offer to take PC but she wouldn’t go. ER denied that this was to encourage the girls to do chores. She said she did not know the accused was purchasing Monster energy drinks for the complainant.[214]

    [212] T201.

    [213] T231.

    [214] T233.12.

    Tights

45. ER described an incident when the accused had picked up the girls from school, where he ‘basically broke his neck to twist his neck to look at this girl’.[215] She recalled PC, who was around 13, told the accused the girl was a similar age to her, to which the accused responded ‘Oh, don’t you know I just want to be her’.[216] She described that the accused would often make similar comments towards teenagers or young girls, often wearing tights, school uniforms or revealing clothing. She believed girls were often between 13 to 17.

    [215] T204.1.

    [216] T204.5.

46. ER described that she would often observe the accused caressing the girls’ legs on the way to school when they were wearing tights.[217]  The accused would encourage the girls to wear tights. She said that anytime the girls had tights on, it was guaranteed the accused would cares their legs.[218] When she commented on what he was doing he would say that he was joking. She said that she would often tell him off. He would make excuses that it was okay.

    [217] T205.22.

    [218] T206.32.

    Sex toys

47. ER gave evidence about the finances during the relationship. The money was shared, and the accused had access to her After Pay accounts and knew her pin codes and passcodes.[219] She described an occasion where the accused purchased a vibrator (dildo) for the complainant, at the end of December 2019, using her Afterpay account. The receipts of the purchase were tendered as Exhibit P7.[220] In cross-examination, ER confirmed that both and the accused had access to each other’s money.[221]

    [219] T208.12.

    [220] T209.

    [221] T242.

48. ER had a conversation with the accused about the purchase of two dildos. She said the accused stated he was worried the complainant was getting into their adult toys, and wanted her to have her own.[222]

    [222] T210.

49. ER described that both dildos were purple and were in a black silky pouch with a tie at the end. The accused gave one to the complainant and told her to put it somewhere safe.[223] ER saw the accused provide the dildo to the complainant, and she said she didn’t want it. The complainant was 12 years old at the time.

    [223] T211.

50. ER gave evidence that she and the accused had approximately 15 sex toys in their bedroom, stored in a bedside chest which was ‘chock-a-block full of sex toys’.[224] The accused had a particular interest in using the sex toys, and would put them into his anus.

    [224] T212.19.

    Pregnancy test

51. ER confirmed that in mid to late 2020, she and the accused were trying for a baby and that she purchased a box of pregnancy tests as a result.[225] She recalled at some point the accused told her he was worried they would have a teenage pregnancy on their hands, in relation to the complainant, and got the complainant to take a pregnancy test.[226] She believed the conversation was around September or October 2020. She recalled that the accused had also discussed on occasion arranging contraception for the complainant.

    [225] T213.31.

    [226] T213.4.

52. In cross-examination, ER said she did not believe the complainant was having sex with her 15 year old boyfriend at school, and that that was the reason she did the pregnancy test. She denied that she was the one who did the pregnancy test with the complainant instead of the accused.[227]

    [227] T247-248.

1. ER confirmed she went with the complainant to the doctor for contraception. She said the accused was the one pushing the issue.

   Occasions of violence

2. ER was asked about the incident at Bunnings involving the accused and the complainant. She described that they went to get a box for the accused’s son, but that he was told he had to buy the box rather than be provided it for free. The accused became angry at the woman at the door, and she went in and told him to stop being so stupid. The complainant mirrored what she had said to try to calm him, and the accused slapped her across the face with an openhand.

3. ER described another occasion at the property at Gawler Belt when the accused chased the complainant around the scrub, after they were locked out of a caravan. He said something to the effect of ‘I don’t care if you’re 12, I’m going to kill you’.[228]

   [228] T218.1.

4. ER also described an occasion at the Salisbury North address where the complainant told Mitch, the accused’s son, that their pet ducks had died. The accused became angry and pushed the complainant down the steps.[229]

   [229] T219.

5. ER recalled an occasion when the girls didn’t want to open the gate to the property at Two Wells, in April 2020. The accused chased the girls and knocked them over. ER also tripped over.

6. It was suggested to ER in cross-examination that she told the police the accused hadn’t pushed the girls over. She agreed. She denied that she lied to the police, she said she would get confused about things.

7. ER described the incident when the children ran away from the house to get the bus. She said the accused had taken tablets and said he was going to overdose. She said eventually she went to find the girls.

   Rumpus room at Two Wells

8. ER confirmed the location of the rumpus room on Exhibit P5. She described the room as one where the accused would ‘drink and smoke dope’, and it was described as a kid free space.[230] I place no weight on this evidence of the accused drinking and smoking cannabis.

   [230] T221.

   Separation from the accused

9. ER said that she separated from the accused on 16 November 2020 and that she went to stay with her mother in Pine Point. After approximately a week, she returned to the Two Wells address with the complainant. It was as they arrived at the premises, that the complainant disclosed the offending.[231]

   [231] T223.

   Cross-examination

10. Under cross-examination, ER agreed that the complainant and PC would swap rooms at the Davoren Park address, and that there was a broken door between the two at one stage. At Salisbury North the girls shared a bedroom for the first year, but then had separate rooms. At Two Wells they were in separate rooms.

11. ER gave evidence that when the accused took the girls to school, the complainant would sit in the middle seat and PC would sit on the outside.[232]

    [232] T226.

12. ER was asked about the configuration of the lounge room at Two Wells. She confirmed that occasionally she would sleep on the couch with the accused and she thought the complainant would sleep on the floor, as the air conditioning was in the lounge room. PC would rarely sleep in the loungeroom.[233] She was not certain about whether the complainant slept on the floor.

    [233] T244.

13. ER agreed that the complainant would have nightmares, and she would get into bed with PC or her and the accused. She would generally lie on ER’s side of the bed if she got into their bed.[234] She agreed the complainant would have a mattress on the floor at base of the bed at the Salisbury North address.[235] In re‑examination, ER said she did not have a positive memory that the complainant would sleep on her side of the bed every time she came in in the night. There were occasions she would wake up when the complainant had come to bed that she hadn’t realised.[236]

    [234] T245.32.

    [235] T246.

    [236] T263-264.

    AA

14. AA is a friend of the complainant. She was 15 at the time of trial. She gave evidence that either at the end of 2020 or the start of 2021, she had a conversation with the complainant in which she disclosed that the accused had raped her.[237] The complainant did not say much during the conversation but had said it had happened since the age of eight and that it was happening in her parents’ bedroom.[238] The complainant told AA not to say anything.

    [237] T190.14.

    [238] T190.23.

15. In cross-examination, parts of AA’s recorded interview were put to her. She accepted she told the police that the complainant had told her it would happen when ER and PC were out, and that the complainant said it mostly occurred during the day.

16. AA accepted that the complainant was known for lying around that time. She agreed the complainant told her about a pregnancy test. She said she had taken one because she felt nauseous, it came back positive so she took another one which was negative. She agreed the complainant told her the accused never used a condom.

17. AA agreed the complainant told her there was anal sex with the accused.[239]

    [239] T195.

    Detective Brevet Sergeant Rowe

18. Detective Brevet Sergeant Rowe, the Investigating Officer in this matter gave evidence in relation to the investigation.

19. He confirmed that on 30 November 2020, the Department for Child Protection (DCP) received notification of allegations involving KC. As a result, DCP created a case file. SAPOL became involved at around the same time, through the CARL system. When a child abuse report is made, a report is raised by DCP and a notification emailed to SAPOL.[240]

    [240] T271.

20. He said that PC was spoken to, and that she declined to speak to police or provide a statement.[241]

    [241] T272.31.

21. Detective Rowe also confirmed that IW’s parents were spoken to, and advised they did not want her involved in the matter.[242]

    [242] T273.23.

22. Registration documents were tendered as Exhibit P8 in relation to the accused’s ownership of the various vehicles described by the complainant.

23. The Detective confirmed that the accused was contacted at 10.38am on 4 December 2020. At the time he was at the DCP office in Gawler. At 11.23am, he came across to the Gawler Police Station where he was formally arrested, charged and processed.

    Ms Hillyer

24. Ms Hillyer is a supervisor at the Department for Child Protection in the Investigation and Assessment Team at the Gawler office.[243] On 30 November 2020, the department received an intake in relation to KC. The file was allocated to Melissa Carey, a social worker within the team. On 2 December 2020, a strategy meeting was held, where it was determined that DCP staff would attend at the complainant’s school to speak with her. On 3 December 2020 the complainant’s mother was met with.

    [243] T276.

25. On 3 December 2020, Ms Hillyer then contacted the accused via phone to go into a verbal agreement with him not to have any contact with his children or his stepchildren until further notice.[244] Ms Hillyer said the following in relation to the call:

    Yep, so I rang him and let him know that we had received some concerns about child abuse against him and wanted to go into an agreement with at least, at least that night, about him not having contact with the children. He responded 'Do you know why I did it', I asked 'why', [the accused] said 'sexsomnia'. He then continued to say that he 'I do it when I'm asleep, I do it in my sleep'.[245]

    [244] T280.

    [245] T281.13.

26. She confirmed the comments were made unprompted. The accused linked it to a medical condition and that he was seeing a doctor. He agreed not to have contact with the children but wanted to see his biological children on the weekend. Ms Hillyer said that at no time during the conversation did she mention that the type of child abuse was sexual, or who the alleged victim of the offence was. After the phone call, she contacted SAPOL and advised them of the admissions made.

    Ms Carey

27. Melissa Carey is a social worker for the Department of Child Protection. She was allocated the file in relation to KC. She met with the complainant on 3 December 2020. She met with the accused and his parents the following day, to discuss the allegations and put a safety plan in place.

28. She told the accused the reason for the meeting was because they had concerns around allegations of sexual abuse towards a child. The accused said to Ms Carey that ‘he had no recollection of anything but his ex-wife [ER] told him that [KC] had crawled into bed two days ago after having a nightmare and he had sexually touched her’.[246] The accused said this before Ms Carey told him the name of the complainant. She said the accused appeared anxious, and was rambling and repeating himself often. He said he had no recollection of what he did but ER frequently told him he ‘does sexual stuff’ in his sleep.[247] He told them he had been diagnosed with epilepsy and bipolar and that he believed he had sexsomnia.

    [246] T288.28.

    [247] T289.

29. The accused produced paperwork that appeared to be a Google search of sexsomnia.[248] The documents were tendered as Exhibit P9.

    [248] T289.16.

30. The accused also made comments that the bedroom door at the Two Wells house required a door to open. He said he would lock the door.

31. The accused said that ER wanted a threesome with him and a friend, but that he didn’t want to. He then said ‘this is what happens when you don’t want a threesome’, which Ms Carey took to be in response to the allegations.[249]

    [249] T292.

32. In cross-examination, Ms Carey agreed that the accused was contacted by the police during the meeting, and that he told the police he would be over afterwards.

33. Ms Carey agreed that the accused was required to sign a safety plan at the end of the interview, agreeing to certain conditions. She also agreed that the accused signed a medical consent form.

34. Ms Carey was taken to her notes, where she had written ‘[JJS] stated he can guarantee he has not done anything whilst awake’.[250] She agreed the accused had said that.

    Addresses of Counsel

    [250] T297.14.

    Prosecution submissions

35. Mr Mulvihill accurately observed that the primary issue to be decided is whether the evidence of the complainant proves beyond reasonable doubt that two or more unlawful sexual acts were committed by the accused.

36. The prosecution identified three substantive topics requiring analysis in the Crown’s submission. They are:

    ·    the evidence of the complainant;

    ·    independent support of the complainant’s account;

    ·    opportunity; and

    ·    initial complaint evidence.

37. Mr Mulvihill submitted that the evidence in this case is not about whether the complainant was confused or uncertain about the allegations, but rather, whether the complainant was being truthful or lying. It was submitted that really, it is as simple as that.

38. At the commencement of the prosecution address, it was submitted that the evidence of the complainant could withstand close scrutiny so as to provide a basis for proof beyond reasonable doubt of the charged offence.

39. As part of the prosecution closing address, an aide memoire was tendered identifying the evidence relied upon by the prosecution in support of the particulars set out in the Information.[251]

    [251] This aide memoire is annexed to these Reasons as Annexure A; Exhibit P10.

40. During the course of submissions, an issue arose as to whether I was permitted to review Exhibits P1 and P2 as part of my evaluation of the whole of the evidence. Whilst the prosecution did not take issue with me being able to review those exhibits after Court adjourned following the reservation of the verdict, defence counsel expressed some reticence with this approach.

41. In determining this issue, I have regard to the approach of Duggan J (with whom Nyland J agreed) in R v J, JA.[252]

    [252] [2009] SASC 401 [28]-[30].

42. I have also taken into account the observations of Kimber DCJ (as he then was) in R v Omond[253] and, in particular at [34], where his Honour stated:

    While Duggan J held in R v J, JA the trial judge was correct in telling the jury the audio-visual record could only be viewed in the court room, I am satisfied that is not necessary in trial by judge alone. The justification for Duggan J’s approval of the approach of the trial judge was the risk of ‘giving the complainant’s version undue weight if there is no restriction on the playing of the tape’. In my view, if that risk exists in trial by judge alone, it does not exist to the same degree. It is common that judges sitting alone will read the trial transcript, sometimes many times. Sometimes not all aspects of a witness’ evidence will be read the same number of times. Putting aside audio-visual records admitted pursuant to s 13BA of the EA, audio-visual recordings are commonly exhibits (e.g. records of interview with defendants and CCTV footage). Sometimes such recordings might be watched many times, including replaying specific aspects. In my view, at least in trial by judge alone, there is no need to take a different approach when an aspect of the evidence of a witness is an audio-visual record. Nonetheless, I have directed myself that P1 and P3 are only part of the evidence of AF, and only part of the evidence in the trial. I am obliged to evaluate the whole of the evidence. I must not give P1 and/or P3 undue weight because I have viewed them more than once.

    [253] [2022] SADC 62.

43. For the sake of completeness, I have considered as part of my review of the whole of the evidence, Exhibits P1 and P2.

44. The prosecutor made submissions about the demeanour of the complainant in the recorded interviews. It was suggested that the complainant’s presentation was garrulous and likened some of the answers in those interviews as ‘a rapid-fire brain dump of information’.

45. The prosecution submitted that ultimately the complainant provided a lot of information about what ‘she said the accused did to her and it all came out … without any semblance of preplanning or rehearsal. It was unrefined, imperfect and raw’.[254]

    [254] T310.14-21.

46. The prosecution conceded that there was limited disclosure in the first interview, Exhibit P1. In making this concession, the prosecutor highlighted the majority of disclosures were made in a subsequent interview, Exhibit P2.

47. The prosecutor provided a concise summary first, as to the disclosures made in Exhibit P1 and second, in relation to the disclosures made in Exhibit P2.

48. In relation to Exhibit P1, the first interview, the prosecutor submitted the following disclosures were made:

    ·       the accused exposing his penis when she was 8;

    ·       an occasion of him spitting on his fingers and putting them inside her vagina;

    ·       rubbing his penis on her buttocks during massages;

    ·       an occasion of him kissing her on the lips and down her body;

    ·       when asked towards the end of the interview whether the accused had done anything to her with his penis, the complainant replied ‘No. Not that I know of’.

49. In relation to Exhibit P2, the second interview, the prosecutor submitted a summary of disclosures as follows:

    ·       an occasion of sexual touching and penile penetration in a paddock at Two Wells at night-time;

    ·       multiple occasions of penile penetration at the Salisbury North address and within that a specific occasion of digital and penile penetration in the accused’s room when the complainant’s mother was asleep;

    ·       various occasions of penile penetration in the rumpus room of the Two Wells property;

    ·       other occasions of sexual intercourse before those she was able to identify specifically.

50. The prosecution submitted that there was a logical explanation for the limited disclosure in the first interview to be found in the chronology of events leading up to the first interview with police.

51. The prosecution submitted that the relatively short period of time between the separation of the complainant’s mother from the accused on 16 November 2020, the associated period of time that the complainant, her sister and mother spent at the grandmother’s place for respite and subsequent return to and the disclosure by the complainant to her mother on 27 November. It was submitted that less than a week later, on 3 December, the complainant was taken out of class and spoken to for the first time by a DCP worker about the allegations and then on the same day was taken for her first prescribed interview at a police station. It was submitted by the prosecution that the context in which the first interview took place was challenging and that this is an explanation for a reticence on the part of the complainant to disclose the full extent of the offending on the first occasion she was interviewed.

52. It was conceded by the prosecution that the complainant’s disclosures occurred in a ‘piecemeal fashion’ which developed over time. It was submitted by the prosecution that this was an uncomfortable topic for a young girl to talk about. Notwithstanding this, the prosecution submitted that the complainant’s account is significantly supported by other aspects of the evidence and that the piecemeal disclosure should not cause the Court too much trouble.

53. The topic of a potential motive to lie was then the subject of submissions by the prosecution. Motive to lie was put to the complainant under cross-examination. The motive that was suggested was that the complainant wanted to breakup the relationship between her mother and the accused. The complainant rejected the suggestion that that was her motive to lie. The prosecution submitted that the Court should not find a proven motive to lie. First, this submission was advanced on the basis that the initial complaint was not made to the complainant’s mother, but rather to her grandmother and it was of a limited factual nature. Second, by the time of the complainant’s disclosure to her mother, her mother had already resolved to breakup with the accused.

54. The prosecution then moved on to make submissions in relation to prior inconsistent statements on the part of the complainant. The prosecution identified a number of prior inconsistent statements and made submissions as follows:

    1.   The complainant’s failure to specifically refer to the accused making her stroke his penis during the first occasion of abuse when she was aged 8 at the Davoren Park property. This was not specifically referred to during the course of the first police interview. In relation to this incident, the complainant referred to the accused asking her if she wanted to touch his penis with the complainant saying no and walking away.[255] The prosecution identified that the complainant did tell the police about the accused making her stroke his penis on that first occasion during the second interview, Exhibit P2 at line 364. It was submitted by the prosecution that this was a topic of clarification in the second interview and that the complainant’s explanation for her omission to mention this in the first interview is that she was only 8 years of age and that it had happened so many times that it was, as I understand it, difficult for the complainant to recall specific acts of abuse given the number of times acts of abuse occurred over a lengthy passage of time.

    2.   The second prior inconsistent statement is the complainant disclosing for the first time an allegation of the accused kissing and licking her vagina during the loungeroom incident that took place at the Two Wells property while her mum was asleep on the couch. The first disclosure of that particular aspect of the incident occurred under cross-examination[256] and was absent from the first prescribed interview, Exhibit P1 at lines 188‑218 and lines 570-578. The complainant explained that she hated talking about that aspect of the matter, hence it being disclosed for the first time during cross-examination. It was submitted by the prosecution that the complainant’s evidence was broadly consistent in her evidence regarding that incident and that cunnilingus was performed upon the complainant by the accused with such regularity so as to make this disclosure unremarkable.

    3.   The third inconsistency, subject to submissions by the prosecution, was the late disclosure of anal sex which was described for the first time whilst the complainant was under cross-examination.[257] There was an agreed fact that this incident had never previously been disclosed by the complainant. Again, it was submitted by the prosecution that this was a particularly embarrassing disclosure to make and that perhaps it was something that she was not prepared to talk about previously.

    4.   Another inconsistency conceded by the prosecution relates to particular (i), the alleged photography by the accused of inserting his penis into the vagina of the complainant. This inconsistency arose from ER referring to the images, being videos, as opposed to still photographs, as stated by the complainant.

    [255] Exhibit P1, MFI P3, 03/12/2020, line 222; T164.

    [256] T103.

    [257] T141, 179.

1. This conversation was said to have taken place at about 5.25 pm on 3 December 2020.

2. The second admission alleged took place on 4 December 2020 at 10.00 am and was said to have been made to Ms Carey in the following terms:[272]

   [272] T288.24-37; T289.12-290.11.

   QAt that meeting was the topic of DCP's concerns about the information that it received in the intake raised.

   AYes.

   QTell us what was said on that topic.

   AI told [the accused] that the reason for the meeting was because we had concerns around allegations of sexual abuse towards a child. [The accused] then said to me that he had no recollection of anything but his ex-wife [ER] told him that [the complainant] had crawled into bed two days ago after having a nightmare and he had sexually touched her however I hadn't mentioned the child's name yet.

   QThat comment that you have just attributed to [the accused], was that a direct quote.

   AYes.

   …

   QDid [the accused] say anything further.

   AYes, he did. He continued to repeat that he had no recollection of what he does but [ER] frequently told him that he does sexual stuff in his sleep and she almost bragged that he performed better in his sleep.

   CONTINUED

   QSo, [the accused] making comments about [ER] bragging about sexual stuff that he did in his sleep.

   ACorrect.

   QWhat was discussed next.

   A[The accused] stated that he had been diagnosed with epilepsy and bipolar and said 'I have sexsomnia'. I asked 'Do you have a diagnosis?'  He said 'No, I don't but I believe I have it and these things lead to sexsomnia'.

   QWho raised that topic of sexsomnia.

   A[The accused].

3. It can be seen that the ‘admissions’ were inherently vague. No specific allegations were put to the accused by either of the DCP witnesses. Specific allegations to which the comments may have related are not capable of ascertainment. The ‘admissions’ are incapable of informing the Court whether the prosecution had proved each element of the charged offence. This point was made by Buchanan JA, agreeing with Ashley JA in R v MMJ:[273]

   If the jury construed the applicant’s silence as an admission, notwithstanding the difficulties pointed out by Ashley JA, they could not know the acts constituting the sexual involvement the applicant had admitted, whether it was one of the acts alleged by the complainant, for example, touching her vagina or penile penetration of her vagina or some other act. Nor could they know when the admitted acts occurred. Accordingly, I do not consider that the evidence could found a verdict of guilty to any particular offence or offences.

   [273] (2006) 166 A Crim R 501 [54].

4. The ambivalent qualities of the comments made by the accused, coupled with the absence of the provision of the allegations in order to prompt the relevant responses means that these comments cannot rise to the status of ‘admissions’.[274]

   [274] Ibid; Choudhary v Director of Public Prosecutions [2013] VSCA 325; R v Spencer [2019] SASCFC 70.

5. Having reached this conclusion, I do not propose to make any use of the comments attributable to the accused to the DCP workers.

6. I return briefly to the topic of sexsomnia raised by the accused in his conversations with Ms Hillier and Ms Carey. There is no admissible evidence that the accused has been diagnosed with sexsomnia, nor is there any admissible evidence as to the symptoms of this condition.

   Motive to Lie

7. I turn briefly to deal with this topic. I am not satisfied that the evidence supports a motive to lie on the part of the complainant. It was suggested that the complainant intended to break up the relationship between her mother and the accused. I accept the submission advanced by the prosecution that the initial complaint made to the maternal grandmother was underinflated as opposed to overinflated, which would tend to militate against the complainant intending to destroy her mother’s relationship. Further, it was apparent on the evidence that the complainant’s mother had determined to end the relationship prior to the complainant disclosing the offending to her mother.

8. I note that in rejecting the suggested motive to lie, the prosecution’s case is not strengthened. The complainant’s account gains no credibility from a rejection of the suggested motive to lie. Of course, the accused has no onus to prove a motive to lie.

   Uncharged acts of violence

9. The evidence of uncharged acts of violence described by the complainant and her mother has been summarised earlier in these reasons. Those incidents involve allegations of the incident at Bunnings where the complainant gave evidence that she was slapped in the face by the accused, the incident described by the complainant at the Salisbury North address when the complainant stated that the accused gave her a black eye. There was also an occasion at the gate of the Two Wells property when the accused chased ER and her sister and knocked them to the ground.

10. I note the criticisms referred to during the course of the defence address regarding inconsistencies arising from this topic of evidence.[275] I agree with the position put by defence counsel that those inconsistencies are not pivotal. I accept the evidence of the complainant in relation to the Salisbury North incident and the Bunnings incident. I accept the evidence of ER in relation to the incident at the gate of the Two Wells property.

    [275] T361.9-31.

11. During the course of the second CPS interview, the complainant referred to threats made by the accused that something would happen to her family if the complainant were to disclose the offending.[276]

    [276] Exhibit P2, MFI P3, 15/08/2021, lines 472-502.

12. In terms of what, if any use is to be made of these incidents, the observations of Vanstone J (Sulan & White JJ agreeing) in R v M, BJ[277] are apposite:

    Evidence of this type has some parallels with the evidence described as ‘relationship evidence’ by Mullighan J in Liddy’s case (at [95]). Having referred to general observations of Doyle CJ in R v Nieterink (1999) 76 SASR 56 at 65 regarding the disparate ways in which evidence of other offending could be relevant and admissible apart from as similar fact evidence, his Honour said this, (at [98]):

    Furthermore, the evidence in the present case could show that the appellant developed over time a relationship with the complainants including sexual activities and talk involving him which they regarded as normal and unexceptional and would render the possibility of disclosure or discovery by others unlikely. The evidence is capable of establishing that the appellant indoctrinated and conditioned the boys to be accepting of such behaviour and to participate in it unquestioningly and enthusiastically. It may be readily seen that the purpose of the evidence was relevant to issues in the case, was strongly probative and went well beyond mere evidence of propensity.

    By similar process of reasoning, I would not categorise the above uses of the evidence of violence as including a similar fact or propensity use. The evidence provided a context in which the sexual offending in relation to each of the three children occurred, but inasmuch as the violence appeared to be spontaneous and a function of ill temper, I would not say that evidence going to any assault charge reached the high degree of probative value required to render it capable of use as similar fact evidence in respect of the assaults upon the other children. Nevertheless, it remains cross-admissible for purposes related to relationship and subjugation. [my emphasis]

    [277] (2011) 110 SASR 1 [36].

13. In the context of this case, this evidence is relevant and admissible for purposes related to relationship and subjugation. I have regard to the evidence for that purpose only. I remind myself that I must not use this evidence to reason that because the accused has engaged in this discreditable conduct that he is a bad person and therefore the sort of person who is more likely to have committed the charged offence.

    Forensic Disadvantage

14. The question of forensic disadvantage pursuant to s 34CB of the EA was discussed by the Court of Criminal Appeal in R v Cassebohm,[278] R v Maiolo (No 2),[279] R v W, PK,[280] and in R v R, PA.[281]

    [278] (2011) 109 SASR 465.

    [279] (2013) 117 SASR 1.

    [280] [2016] SASCFC 5.

    [281] [2019] SASCFC 19.

15. What is however crucial is that s 34CB is exclusively directed to the forensic disadvantage to the defendant in its own right and not diluted by similar disadvantages to the prosecution witnesses.

16. I repeat, for a warning to be exclusively concerned with the forensic disadvantage to the accused.

17. In R v Cassebohm, Doyle CJ, relevantly said:

    I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so.

18. As noted in R v Maiolo (No 2), these factors result in a diminution of the defendant’s ‘ability to effectively conduct his case including to cross-examine the prosecution witnesses in a way so as to cast doubt upon issues of credibility and reliability’.

19. I direct myself that the defendant has been substantially forensically disadvantaged. I will take into account that forensic disadvantage to the defendant when I come to scrutinise the evidence of the prosecution and to assess whether the prosecution has proved the objective elements of the relevant charge against the defendant. In this case, and in addition, that forensic disadvantage is specifically demonstrated by the loss of the ability to interrogate electronic devices which relate to particular (i) and the loss of the dildo subject to particular (h).

    Complaint Evidence

20. The complainant’s evidence was that the first person she told about the offending was her grandmother. That disclosure was limited to the accused touching her on the legs.[282]

    [282] Particular (c) on Information.

21. There is also evidence of an elaboration of that initial complaint to her friend, AA. The complainant stated ‘I started telling [AA] about how [the accused] was touching me inappropriately … he was raping me’.

22. It was accepted by the prosecutor in his closing address that the evidence of complaint in this case is ‘somewhat vague’. The prosecutor further conceded that the evidence does not demonstrate any great consistency of conduct. Indeed, it was anticipated by the prosecution that defence would be submitting that the complaint evidence is demonstrative of inconsistency. This was an accurate prophecy.

23. The evidence of AA relevantly revealed inconsistency in relation to penile/vaginal sex occurring from the age of 8, together with disclosures regarding anal sex, which were only elicited from the complainant for the first time under cross-examination.

24. Admissibility of complaint evidence is governed by s 34M of the EA which states:

    34M—Evidence relating to complaint in sexual cases

    (1)    This section abolishes the common law relating to recent complaint in sexual cases.

    Note—

    See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427

    (2)   In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.

    (3)   Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.

    Examples—

    Evidence may be given by any person about—

    •     when the complaint was made and to whom;

    •     the content of the complaint;

    •     how the complaint was solicited;

    •     why the complaint was made to a particular person at a particular time;

    •     why the alleged victim did not make the complaint at an earlier time.

    (4)   If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—

    (a) it is admitted—

    (i) to inform the jury as to how the allegation first came to light; and

    (ii) as evidence of the degree of consistency of conduct of the alleged victim; and

    (b) it is not admitted as evidence of the truth of what was alleged; and

    (c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,

    but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.

    (5)   It is not necessary that a particular form of words be used in giving the direction under subsection (4).

    (6)   In this section—

    complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);

    initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).

25. In R v England[283] Stanley J (Kourakis CJ and Nicholson J[284] agreeing) stated:

    Section 34M(3) provides that evidence relating to the making of an initial complaint of an alleged sexual offence is admissible on a charge of that offence. An ‘initial complaint’ is defined in s 34M(6) to include information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). The complaint to the mother was an ‘elaboration’ of the first complaint to K. The mother was told additional details. In particular, the victim alleged that she had been touched between the legs and referred to rubbing in that area. The fact that the victim did not remember as much detail of what she had said to her mother did not make the complaint inadmissible. A complainant does not even have to recall making the complaint.

    I do not accept the appellant’s submission that the evidence of the complaint to the mother was not admissible because it was not capable of proving consistency of conduct of the victim because there were inconsistencies in the evidence of the contents of the complaint made to the mother. This Court has previously held that even though s 34M(4) identifies consistency of conduct of the alleged victim as one of the uses of complaint evidence, that is to be understood as including evidence which, in some aspects, reveals inconsistency of conduct because it is for the jury to evaluate the significance (if any) of the evidence given its degree of consistency or inconsistency. [my emphasis]
    [footnotes omitted]

    
      

    [283] [2013] SASCFC 79.

    [284] Nicholson J identified disparity in other decisions of the Court as to the treatment of inconsistency at [48].

26. In the circumstances of this matter, the evidence of the complaint to KC’s grandmother is admitted to inform the Court as to how the allegation first came to light and, as evidence of the degree of consistency of conduct on the part of the complainant, in that she complained about particular (c) on the Information.

27. In applying the principles expressed in R v England above, I take into account the apparent inconsistencies that exist in the complaint evidence, namely the restricted nature of the disclosure made by the complainant to her grandmother, and the inconsistencies about the nature of sexual acts disclosed to the complainant’s friend, AA.

    Discussion

28. I have set out in these reasons a synopsis only of the evidence in respect of the matter. I have also summarised some of the respective submissions of counsel.

29. The prosecution case is solely reliant upon the evidence of the complainant being accepted as both truthful and reliable beyond reasonable doubt.

30. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of the complainant’s evidence, it is trite to say that the prosecution case stands or falls on an acceptance of her evidence as to whether the sexual acts took place, beyond reasonable doubt.[285]

    [285] Murray v The Queen (2002) 211 CLR 193 [57].

31. The prosecution case cannot succeed unless KC’s evidence satisfies me beyond reasonable doubt of the commission of the charged acts. In light of the significance of the complainant’s evidence to the prosecution case, a doubt about one aspect of her reliability or credibility as regards one topic would clearly be an important consideration when considering whether I could accept her evidence on another topic or issue.

32. In evaluating KC’s interviews and evidence in Court, I must not overlook that no aspect of the evidence must be evaluated without considering the whole of her evidence and the balance of the evidence. Matters which might be said to impact adversely upon KC’s honesty and reliability must be considered in the context of the evidence as a whole.

33. The real issue is whether the prosecution has established beyond reasonable doubt KC did not invent the unlawful sexual acts within the particulars of the charged offence as being committed by the accused. More particularly, the issue is whether the prosecution has established beyond a reasonable doubt that the accused committed two or more of the unlawful sexual acts set out in the particulars of the offence.

34. I found KC to be an impressive witness. There was nothing in the way she presented in her interviews or when giving evidence in Court which causes me to doubt her honesty and reliability. She appeared to be genuine and at no time did I get the impression that she was exaggerating or doing anything other than attempting to recall the events accurately. KC was more impressive with her presentation in Court. She responded to questions in a straightforward, convincing fashion. This may have been due to the fact that she was older at the time that she gave evidence in Court, as opposed to the time of the two prescribed interviews.

35. It is, however, vital that demeanour and presentation not be given undue weight in an assessment of honesty and reliability. Any determination of those issues can only be made having regard to the whole of the evidence, the criticisms raised by the accused in the course of the trial, and whether there is support for her evidence.

36. Having cautioned myself about such matters, I am nonetheless left with a positive overall impression of the integrity and reliability of KC’s account. There was nothing in KC’s demeanour in the course of the prescribed interviews, examination-in-chief and cross-examination which caused me any concern about her credibility or reliability. To the contrary, I found her presentation to be convincing and genuine.

37. Of course, and as I have earlier acknowledged, this is simply one facet of her evidence that I must consider and weigh against the balance of her evidence and indeed the evidence in its totality, including any deficiencies in the detail of her account and established inconsistencies within KC’s evidence or as between KC’s evidence and other evidence. I have given careful thought to the inconsistencies, particularly those identified during the addresses of counsel.

38. There was a lack of detail in some responses given by KC about unlawful sexual acts and it is true that there were material proven inconsistencies predominantly in the form of failures to disclose particulars of sexual acts, such as cunnilingus on one occasion, the complainant’s initial position that there was no sexual contact involving the accused’s penis and her disclosure of anal sex for the first time in cross-examination.

39. I have considered each of the criticisms and inconsistencies identified by defence. I accept that, in addition to the inconsistencies regarding sexual acts, there were also inconsistencies in terms of chronology and peripheral detail. Again, this is hardly surprising given the age of the complainant.

40. I have given careful consideration to the nature and extent of the established inconsistencies and the degree to which they infect the credibility and reliability of KC’s account in relation to the particular issue or topic to which the inconsistency relates and her evidence generally. Where a witness is shown to have given an inconsistent account in respect of a matter central to the prosecution case, it is essential to reflect critically on the implications of such an inconsistency on the overall cogency of the witness’ evidence and to consider the merits of any explanation advanced in mitigation of the inconsistency.

1. Having given those matters such consideration, I have concluded that the inconsistencies relating to the descriptions of sexual acts do not cause me to doubt KC’s honesty or reliability about the occurrence of unlawful sexual acts. Some absence of and variation in detail might be thought unsurprising when a child of the complainant’s age is relating events. This is particularly so in the context of the first DCP interview, given the chronology, surrounding circumstances and age of the complainant at the time that interview took place.

2. I am satisfied that the complainant’s presentation in the two interviews was consistent with a child of her age who was embarrassed, who may have been reluctant to disclose the full extent of the sexual contact and may not have fully appreciated the seriousness of the alleged conduct about which she was speaking.

3. The mother of the complainant, ER, presented as a witness who was somewhat defensive and certainly protective of the complainant. ER’s evidence about her work roster confirmed the opportunity for the offending to take place, although this was not really in dispute. There are two aspects of the mother’s evidence that are of particular significance. The first concerns the accused administering a pregnancy test to the complainant. Putting to one side for a moment the suggested motivation for the administration of the pregnancy test advanced by the accused, namely a concern of a teenage pregnancy coupled with a suggestion of the complainant’s interactions with a 15 year old boy, the evidence of ER supports the complainant’s account on this topic. It supports the complainant’s evidence that the accused effectively made her take a pregnancy test. I do not accept the suggestion that the pregnancy test was administered out of concern of a pregnancy arising from interactions between the complainant and a 15 year old boy. I am satisfied that the accused administered the pregnancy test out of concern that he may have impregnated the complainant. The inference I draw from the evidence is that the accused understood that he was at risk of impregnating the complainant as a consequence of his sexual activity with her.

4. I make it clear that I treat this piece of evidence as a piece of circumstantial evidence, to be considered together with other proven intermediate facts.

5. The other topic upon which the evidence of ER is supportive of the complainant’s account is the accused purchasing a dildo for the complainant. ER confirmed that her Afterpay account was used for the purchase of the dildos, although it was the accused and not ER who made the purchase. Again, regardless of the motive advanced by the accused to ER for that purchase, namely that the complainant and one of her friends were ‘getting into the sex toys’, ER’s evidence is supportive that the accused purchased a dildo for the complainant. In this regard, the evidence of ER supports the account of her daughter that the accused gave her a dildo.

6. This evidence is evidence of the accused’s sexual interest in the complainant and is demonstrative of grooming and cultivating her sexual behaviours.[286] This evidence is also supportive of the complainant’s evidence that the accused would perform a sexual act upon her utilising the dildo.[287]

   [286] HML v The Queen (2008) CLR 334.

   [287] BRS v The Queen (1997) 191 CLR 295.

   Conclusion

7. Having regard to the whole of the evidence, I am satisfied that each of the particularised sexual acts from (a)-(m) occurred beyond reasonable doubt.

8. On the whole of the evidence, and bearing in mind the very high burden that rests upon the prosecution, I am satisfied beyond reasonable doubt that the accused intentionally committed two or more unlawful acts during the course of the relationship with the complainant.

9. I find the accused guilty.

   
   

   ‘ANNEXURE A’

   PROSECUTION DOCUMENT IDENTIFYING EVIDENCE AS TO PARTICULARS of Count 1

   COUNT 1 – Maintaining An Unlawful Sexual Relationship With a Child

   (a) causing her touch his penis on more than occasion  

   2nd interview: line 364

   Sworn evidence: T47-8

   (b) touching her breasts on more than one occasion

   1st interview: lines 64, 70, 187-218, 280, 285-292, 489-518

   2nd interview: lines 74-224

   Sworn evidence: T103

   (c) touching her thighs on more than one occasion

   1st interview: lines 80, 94-96, 104, 108-148, 280, 644

   2nd interview: lines 58, 74, 464

   Sworn evidence: T90-91, 134, 175

   (d) touching her genital area on more than one occasion

   1st interview: lines 94-96, 104, 112-148

   2nd interview: lines 86-8, 120

   (e) rubbing his penis against her body on more than one occasion

   1st interview: lines 150-184

   Sworn evidence: T52-3

   (f) inserting his fingers into her vagina on more than one occasion

   1st interview: lines 297-404, 537-558

   2nd interview: lines 74-224

   Sworn evidence: T56

   (g) inserting his penis into her vagina on more than one occasion

   2nd interview: lines 74-224, 260-296, 306-361, 564-574

   Sworn evidence: T49-52, 54, 56, 61-2, 133

   (h) inserting a dildo into her vagina on more than one occasion

   2nd interview: lines 524-574

   Sworn evidence: T60-1

   (i) photographing her whilst he was inserting his penis into her vagina on one occasion

   Sworn evidence: T61-2

   (j) kissing her body on more than one occasion

   1st interview: lines 70, 410-461

   (k) kissing her mouth on more than one occasion

   Sworn evidence: T55

   (l) performing an act of cunnilingus upon her on more than one occasion

   Sworn evidence: T55-6

   (m) inserting his penis into her anus on more than one occasion

   Sworn evidence: T141, 179