R v Saunders - [2018] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SAUNDERS
Criminal Trial by Judge Alone
[2018] SADC 106
Reasons for the Verdicts of Her Honour Judge Tracey
26 October 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - accused charged with three counts of unlawful sexual intercourse with a person under the age of 17 years. It is alleged that the accused began a friendship with the complainant when she was 13 years of age. Three charged occasions of unlawful sexual intercourse are alleged to have occurred in around 1998, when the complainant was aged 15. Prosecution failed to prove accused's guilt beyond reasonable doubt.
Verdict: Accused not guilty of charged offences.
Criminal Law Consolidation Act 1935 s 5, referred to.

R v SAUNDERS
[2018] SADC 106
Introduction

The accused is charged with three counts of unlawful sexual intercourse with a person under the age of 17 years. He pleaded not guilty to the charges and elected to be tried by judge alone.
I will refer to the complainant as M.
The charges are as follows:
First Count
Statement of Offence
Unlawful Sexual Intercourse with a person under 17 years. (Section 49(3) of the Criminal Law Consolidation Act).
Particulars of Offence
Shane Arthur Thomas Saunders on the 23^rd day of October 1998 at Aberfoyle Park, had sexual intercourse with M, a person of the age of 15 years, by inserting his penis into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a person under 17 years. (Ibid).
Particulars of Offence
Shane Arthur Thomas Saunders between the 23^rd day of October 1998 and the 15^th day of November 1998 at Bellevue Heights, had sexual intercourse with M, a person of the age of 15 years, by inserting his penis into her vagina.
Third Count
Statement of Offence
Unlawful Sexual Intercourse with a person under 17 years. (Ibid).
Particulars of Offence
Shane Arthur Thomas Saunders between the 23^rd day of October 1998 and the 23^rd day of February 1999 at Aberfoyle Park, had sexual intercourse with M, a person of the age of 15 years, by inserting his penis into her vagina.
The defence
In order to prove the offence of unlawful sexual intercourse the prosecution must prove beyond reasonable doubt that the accused committed an act of sexual intercourse with M.
Sexual intercourse is defined in s 5 of the Criminal Law Consolidation Act 1935 as:
Sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving –
(a) penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object; or
(b) fellatio; or
(c) cunnilingus.
In this case the prosecution must also prove that at the time of the alleged offences, M was under the age of 17 years.
General directions
I direct myself as follows:
·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.
·The burden of proving each of the charges lies wholly on the prosecution and the accused is not obliged to prove a thing. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I could convict the accused of any count, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that count.
·If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
·I must assess each witness, including the accused, as to their truthfulness and their reliability and must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
·I must consider each of the counts separately on its own merits and the charges do not stand or fall together.
·If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
·M gave evidence with special arrangements in place. I must not draw an adverse inference against the accused as a result of these arrangements nor allow them to influence the weight I give to the evidence of M.
Uncharged acts
The prosecution case is that there was an ongoing sexual relationship between M and the accused, commencing with kisses when she was aged thirteen, and that the first instance of unlawful sexual intercourse occurred when she was fifteen which continued for about twelve months until M was aged sixteen.
The evidence regarding the uncharged sexual acts was admitted for non‑propensity reasoning purposes to give a more complete picture of the relationship between the complainant and the accused. I have not used the evidence of these uncharged acts and the alleged ongoing relationship for anything other than a non-propensity purpose.
Agreed facts
The following facts were agreed.
Dates of Birth
1.   The complainant, M, was born on 11 October 1983.
2.   The accused was born on 24 April 1973.
Accused’s employment
3.   Between 28 November 1996 and 11 July 2003, the accused was employed as a Library Officer by Mitcham Council.
4.   Between 10 June 1998 and 30 June 2002, the accused was employed by the City of Onkaparinga Council as a Library Officer.
5.   His employment was as follows:
a.   10 June 1998 to 14 February 1999, 17 May 1999 to 22 November 1999, 22 July 2000 to 30 June 2002 casual employment working at various libraries in the Onkaparinga Council area, including time at the Hub Library;
b.   15 February 1999 to 16 May 1999 on a fixed term full-time contract working at the Hub Library;
c.   23 November 1999 to 21 July 2000 on a temporary part-time contract working at the Aldinga/Willunga Library.
Safety Deposit Box
6.   The complainant rented a Safety Deposit Box with Westpac from 15 February 2000 to 29 January 2015.
Complainant’s medical history
7.   From 2001-2011, the complainant was under the care of a psychiatrist, Dr Richard Thompkins who diagnosed her with depression and occasional suicidal ideation.
8.   In July 2001, the complainant was detained briefly under the Mental Health Act (by Dr Thompkins) due to concerns about suicidal ideation.
2011 charges - Complainant
9.   The complainant was charged with 1 count of ‘property damage’ and 1 count of ‘assault’ in relation to an incident which occurred at about 7:05am on Sunday 22 May 2011 at her mother and stepfather’s residence.
10. In October 2011, a report was ordered by the Adelaide Magistrates Court under section 269 of the Criminal Law Consolidation Act (CLCA) in relation to the complainant and the offending detailed in paragraph 11. Dr Titus Mohan (psychiatrist) provided a report dated 13 October 2011 which included the following opinions:
a.   M has a past psychiatric history including Major Depressive Disorder when her father died in 2009 and when her children were removed in 2011.
b.   M is currently suffering from Borderline Personality Disorder.
c.   M did know the nature and quality of her conduct at the time of her offending, but due to the Major Depressive Disorder which was active at the time of the offending, she was unable to reason about the wrongfulness of her conduct.
d.   On the balance of probabilities, it appears more likely than not that M suffered from a mental impairment that led to mental incompetence to commit the alleged offences.
11. On the 20^th March 2012, the Magistrates Court recorded a finding that the complainant was mentally incompetent to commit the above offences. Pursuant to s 269F(3) of the CLCA, the Magistrates Court found that she was not guilty of the above offences and declared her to be liable to supervision.
12. Detective Modra does not recall being told her school diary contained hand written entries made by the accused.
PROSECUTION CASE
The prosecution called M, her stepfather, T, and Brevet Sergeant Modra to give evidence.
Background
The prosecution case is that the accused began a friendship with M when she was 13 years of age, which led to two occasions which involved kissing and groping in the accused’s car in May 1997.
The accused and M continued to be in contact with one another when M moved school to Aberfoyle Park High School, which was served by the Aberfoyle Park Hub Library (the Hub library). The accused used the Hub library on occasion and then later worked there.
The three charged occasions of unlawful sexual intercourse are clearly identifiable on the evidence M gave. The first of those occasions, in October 1998, is said to have occurred in the Hub library stairwell. The second occasion is said to have occurred at M’s mother’s house a few weeks after the first occasion, and the third relates to intercourse occurring at a public toilet at an oval near the Hub library.
The prosecution case is that the accused knew how old M was, and that she was aged fifteen when they first had sexual intercourse. Consent is irrelevant to charges of this nature.
M’s evidence
At the time she gave her evidence, M was aged 34.
She said she met the accused through an amateur theatre group when she had just started high school.[1] The accused would take her home from rehearsals on a regular basis.[2] At the time she was living in Bellevue Heights with her mother, her sister and her mother’s partner T. The theatre production was being held at a venue around the corner from where the accused lived.[3] M said it took about twenty minutes to drive from the performing arts theatre to her home.
[1]    T 12.13.
[2]    T 12.37.
[3]    T 14.6.
M’s first memory of the accused driving her home was the second to last night of the production. He drove to his house to change cars, then drove back past her house, parking near the Flinders University car parks, where they stayed for several hours. While they were talking, the accused said that he loved her, then kissed her and groped her breasts.[4] M was thirteen and the accused knew her age, because he had asked.[5]
[4] T 15.1.
[5] T 15.13.
M’s second distinct memory was of the last night of the production. She thought she and the accused kissed again, but was not sure.[6] They went to the same place they had been the night before, but were there for a shorter time.
[6] T 15.31.
After the production ended, M did not see the accused again for some time. She transferred to another school half way through the year, going from year 8 to year 9, partly because she was able to skip a year of schooling, and partly because she knew that the accused would go to the Hub library fairly regularly to access the internet.[7] The Hub library was a combination of the community and school libraries. M said she would use the Hub library most days and arrange for her step-father to pick her up from there every day.[8] She would see the accused a couple of times a week.[9] She said she had a crush on him. The accused would flirt with her, telling her that nothing would happen between them because she was too young.
[7]    T 17.14.
[8]    T 18.27.
[9]    T 19.25.
In 1998, after rehearsals for the Rock and Roll Eisteddfod, when she was in year 10, M would go to the Hub library and meet the accused.[10] She said they had several conversations about whether or not she could be his girlfriend. They would kiss and the accused would grope her breasts. He would say that she was too young and how tempting she was.[11] During one of these conversations, the accused said he was buying a house and that she could be his ‘concubine’. She did not know what that meant and the accused told her to ‘look it up’.[12]
[10] T 20.25.
[11] T 22.7.
[12] T 24.15.
Count 1
About two weeks after her fifteenth birthday, M and the accused were talking in the foyer of the Hub library and moved towards the fire escape stairwell.[13] They began kissing and the accused began groping her and putting his hands down her underpants.[14] They then moved down to another landing, where there was more groping and the accused touched her vagina and gave her oral sex.[15] The accused told her he could not believe that she had come to the fire stairwell area and had not brought any ‘protection’.[16] She told him it was in her bag and she went down the stairs where she retrieved a condom from her bag. She returned and gave the accused a condom which he put on. He undid his pants and tried to have sex with her standing up, but she was too short.[17] She straddled the accused and the accused’s penis went inside her vagina ‘a little bit’.[18]
[13] T 25.23.
[14] T 27.12.
[15] T 28.31.
[16] T 28.34.
[17] T 30.6.
[18] T 31.15.
Count 2
A week or two later, M saw the accused in the Hub library foyer. He talked about ‘doing it once more and doing it right, and then no more’.[19] M said that the accused was hinting that if she stayed home from school they could have sex in her house while no one was home.
[19] T 32.21.
They arranged that she would stay home and the accused came to her house. They were kissing and went to her bedroom and gave each other oral sex. She thought he suggested they have sex with her on her hands and knees, but that she was not really keen.[20] They used a condom. She remembered the accused took the condom off, tying it up saying ‘this is evidence’ as he put it into his top pocket.[21]
[20] T 34.7.
[21] T 35.23.
Count 3
M and the accused had intercourse in the public toilets next to tennis courts, on the other side of the school oval.[22] It was, M said, in the disabled toilets cubicle, which was about five hundred metres from the Hub library. She said that she was not there for very long because it was school lunch time and she had to get back. In the cubicle she put her trench coat down on the ground because it was concrete. She was pretty sure that they had penile-vaginal sex with her on her hands and knees. Some of the accused’s semen went onto her trench coat. She was taking the contraceptive pill by that stage.[23]
[22] T 38.1.
[23] T 40.3.
Other uncharged acts
M said there were many other occasions on which they had sexual intercourse, but she could not remember them all. She said she could clearly recall an occasion after New Year’s when she arranged for the accused to collect her from a party.[24] He took her from her friend’s house in Craigburn Heights along Blacks Road towards the hills. They went to a petrol station on South Road, where the accused bought water and some condoms and then parked in a car park near the Victoria Hotel. She and the accused had penile-vaginal and oral sex. She remembered sitting, straddling the accused in the backseat of his car, facing away from him.[25]
[24] T 36.11.
[25] T 37.7.
M said that she would often ring the accused, asking him to come and see her. He would take her to the Flinders University car park or to the South Road look out.[26] The accused convinced M to have anal sex with him there.[27]
[26] T 41.28.
[27] T 41.37.
On one occasion the accused came to her father’s house. Her father was not home at the time and she and the accused had anal sex.[28] M said that this may have been the last occasion on which they had sexual intercourse, although she was not certain. She said she was pretty sure that she was sixteen at that time.[29] She did not remember ‘exactly’ having sex with the accused while she was in year twelve and knew that by the end of year twelve she was becoming involved with somebody her own age.[30]
[28] T 44.25.
[29] T 45.8.
[30] T 45.19.
M said that just about every time they had physical contact, the accused would say it was going to be the last time.
After she left school, she saw the accused again. She and the person she was involved with ‘were broke’ and needed money to buy drugs.[31] She went to the accused’s house and he gave her about $50.[32]
[31] T 46.7.
[32] T 48.26.
M said the accused had made clear that what was happening between them had to be kept secret. She remembered that on one occasion before they became sexually involved, the accused told her that if he introduced her to his friends, they would say ‘there are gaol cells for people like you’.[33]
[33] T 47.28.
The accused came to her mother’s house during the summer holidays when her parents were not there. He became quite aggressive and demanded his money back.[34] She had no money to give him. M said she gave the accused his money in 2001, when he came to a flat where she was living in Blackwood.[35] She did not see the accused again for some time. He came to her flat in Edwardstown, in the second half of 2001.[36] She could not remember why he was there, but remembered a girl named Crystal waiting in his car.
[34] T 49.28.
[35] T 53.5.
[36] T 53.19.
M said she and the accused were in contact via email.[37] When she was living in Bedford Park in 2005 or 2006, after she had finished university, she got in touch with the accused and let him know that she was single. He came to her house and she told him that she was available to date him like he always said he wanted to ‘when she was a kid’.[38] The accused told her he was dating Crystal and was not available to be in a relationship with her. She said she was stunned and upset and realised that he was never in love with her and that he was ‘just a child molester’.[39] The accused told her not to ‘be like that’, that he wanted to be friends, and that he would get her a laptop and pay for her internet connection so they could continue to communicate.[40] M said she told him she would rather have justice. After speaking with him on that occasion she reported the accused to police.
[37] T 54.17.
[38] T 54.37.
[39] T 57.11.
[40] T 57.12.
M said that when she was aged fifteen, she kept a diary in which she wrote nearly every day.[41] When she first spoke to police, the diary was not in her possession, however when her mother moved house, she had given M a box of M’s possessions, which had included the diary. M said she had her friend make a photocopy and at some point kept the diary in the Blackwood Community Child Care Centre safe deposit box for safe keeping.[42] She then arranged for a safety deposit box at Bank SA. She thought she gave the diary to police some time in 2008.[43]
[41] T 58.27.
[42] T 50.26.
[43] T 61.7.
In cross-examination, M agreed that she wrote in her diary most days but sometimes it would be a couple of days after the event, in which case, she would note which date a particular event related to.[44]
[44] T 61.34.
M said she complained to police in 2006 because she was upset and realised she was not the ‘great love’ of the accused’s life.[45] She agreed that for some of the time since she was 13, she had wanted to be in a relationship with the accused and had been infatuated with him. He was the first person who told her he loved her and she thought it was ‘some great romance.’[46]
[45] T 62.10.
[46] T 62.24.
M remembered speaking to Detective Modra, telling her she had an old school book and school-issued diary in which the accused had written. She said that when she spoke with police they had told her they believed her, but that there was not enough evidence, and she should come back if she found her personal diary.[47] She denied that after having been informed there was insufficient evidence, she decided to write the diary.
[47] T 63.21.

M denied she was lying to seek revenge on the accused because he would not be a party to her affections. Rather, she was seeking ‘justice for her lost childhood’.[48]
[48] T 69.9.
M said she suffered from depression and had been diagnosed with borderline personality disorder.[49] She agreed that she had appeared in the Magistrates Court in May 2012, but denied that she was found not guilty due to mental incompetence.[50]
[49] T 69.24.
[50] T 70.26.
M agreed that the accused had told her about a movie called ‘The Crush’ which she wrote about in her diary, which concerned a 14 year old girl making false allegations against a teacher.[51]
[51] T 71.6.
In 2013 police raided a house where she was living and found drug paraphernalia. She agreed she had a drug habit at that stage and that she did not want police to charge her with an offence. At the time police were questioning her, she raised the allegations she had made against the accused.[52] M agreed that she had many issues with her family, particularly her mother. She said her mother was aware she was having a relationship with the accused. Sometimes the accused would pull up out the front of her house and she would go out and get into his car.[53] M was referred to the transcript of the previous trial and it was suggested to her that she had said that she did not think that the accused ever came to her house to pick her up. M explained her evidence on the basis that the accused did not collect her at her front door.[54]
[52] T 75.7.
[53] T 76.30.
[54] T 79.23.
M agreed she had given four statements to police and that there was no mention of a diary in her first statement.[55] M agreed that what she had written in her diary on 6 November 1998 was a very explicit, detailed description of the sexual acts that took place between herself and the accused on that day.[56] She denied she had written lies.[57]
[55] T 84.28.
[56] T 96.33.
[57] T 98.9.
M was asked about her diary entry for 15 December 1998 which detailed a sexual activity with the accused which specified the event occurring during the accused’s ‘lunch hour today’. M denied she had lied about seeing the accused on that day.[58]
[58] T 105.11.
M agreed that the entry she made in her diary on 10 February 1999 related to 5 February 1999. In that entry, she had written that she and the accused had ‘their last time together’ where sex had taken place in the Hub library ‘reading room’.[59] She said that at the time she thought it was their last time, but that they had many ‘last times’. She always believed the accused when he said it was the last time and that he had said it nearly every time they had sex.[60] M denied that the reading room was a dangerous place to have sex, although it was accessible to students. She said the incident occurred at night when no students were there.[61]
[59] T 118.9.
[60] T 118.30.
[61] T 119.25.
M said she stopped writing in her diary after her entry on 24 February 1999, because her entries started detailing her drug use and she did not want her mother or anyone finding out.[62] She agreed that her drug use related to marijuana, then amphetamines and acid. Sometime after 24 February 1999, she became a heavy user of amphetamines. Her drug use did not affect her thinking as she managed to complete a Bachelor of Medical Radiation, majoring in nuclear medicine technology.[63]
[62] T 123.19.
[63] T 124.11.
M said that despite heavy use of amphetamines between 1999 and 2006, she did not experience any psychosis. She was seeing Dr Thompkins for depression which she attributed to the accused’s actions and said that in part, her family situation was a contributing factor to her drug use.[64]
[64] T 125.13.
M was asked about behaviour she had exhibited when speaking to police at the time she made her second statement, having apparently hugged the container that held her father’s ashes and cried. M agreed she probably started to rock and accepted her behaviour was ‘unusual’.[65]
[65] T 127.38.
M made an entry in her diary on 11 September 1997, of ‘I should base a romance novel on my life'. She denied that she had written her diary as a romance novel. The diary, she said, was based on reality.[66]
[66] T 134.33.
M said there were a number of times that she and the accused had sex in the university car park and that she had ‘quite likely’ not mentioned it in her statements to police. She said police told her to go with the incidents she could remember most clearly.[67]
[67] T 137.8.
M denied that she had been found mentally incompetent in relation to the matter heard in the Adelaide Magistrates Court. She said that because of her mental illness, she had not been aware that what she was doing was wrong. She was in a bad place and did not know where her children were.[68] M said that her son had made an accusation against her mother’s partner T, and she rang the Child Abuse Report Line and took her son to hospital. At the hospital they were referred to Child Protective Services, who considered that it was not very likely her son had been abused and that because of her own history of sexual abuse, she was likely to be hypervigilant. She denied she falsely accused T for revenge.[69]
[68] T 143.24.
[69] T 147.11.
She denied that her mother and T had custody of her sons because of her drug addiction. She said they had taken the children against the orders of the Family Court and against the recommendations of Family Services, who did a month long investigation and recommended that the children stay with her. She maintained that her children had been taking from her illegally.
M said she saw Dr Thompkins on one occasion and later became his patient. She had since been to see a court forensic psychiatrist and now sees a psychologist.[70]
[70] T 148.8.
M denied that if she gets angry at people, she likes to make false accusations against them. M agreed she had told a former partner’s employer that he was taking drugs and was growing marijuana, but denied this was an act of revenge.[71] She said that she quite likely made threats to expose a former partner’s sister as being a user of drugs and also quite likely threatened to call her own sister's workplace to warn them of her drug habit.[72]
[71] T 148.24.
[72] T 149.2.
M agreed that there is no mention in her statements about having sex at her father’s house. She said that she has tried to block it out, as this event is particularly disturbing to her.[73] She agreed she had developed a hatred of the accused when she realised he was not interested in being in a relationship and had just used her for sex.[74]
[73] T 157.27.
[74] T 164.27.
M said she had no recollection of T coming to the passenger side of the accused’s car and saying something to him.[75] She denied that she had shared information with T since the last trial.[76]
[75] T 167.6.
[76] T 167.19.
M said that she and the accused exchanged explicitly sexual emails.[77] Some of the emails that passed between herself and the accused were shown to her in cross-examination.
[77] T 178.29.
On 18 September 2002, M emailed the accused as follows:[78]
Babe,
Can you please give me your mobile number again …
0405266329 new address 6/25 Regent Street, Melrose Park.
[78] Exhibit D3.
On 16 May 2004, the accused wrote:[79]
Hello Miranda at new email,
To become a librarian … it depends on the library .. and what kind of library work you want to do … you can become a full librarian only by studying at uni … which will open you up to all levels of library work … you can study library Tech at TAFE which will get up up to around level 4 jobs … if you are lucky …. Or you can just apply and try your luck … some libraries now only recruit those with training … or if you are lucky .. library experience … not many except anyone now … also .. Onkaparinga ask you to leave your resume … Mitcham only accepts applications when they advertise vacancies .. and Marion only hire directly through temp agencies .. or advertise … each library does it their own way by the looks of it … and yes .. I concur … more the fool he is!
So how are things with you … you still at Castle Plaza? .. where do you access the internet
[79] Exhibit D4.
On 18 May 2004 M replied:
Hey
From crappy job search training – you were supposed to get me a job! :)
Still near Castle Plaza, yes.
M was then referred to email correspondence between herself and the accused in 2005.
On 23 May 2005, the accused wrote:[80]
You online now?
[80] Exhibit D6.
M wrote on 1 June 2005:
Nah … you have to come and see me – you have to help me be something worthwhile. Please.
Miranda
On 14 June 2005, M wrote:[81]
'Call me later at night when I can talk, I'll pretend you are Peter
Mirky ha ha.'
[81] Exhibit D7.
Ms Brady said that the ‘Peter’ referred to was a good friend of hers and ‘Mirky’ was the accused’s nickname for her.
On 13 November 2015, M wrote:
Why didn’t you reply to me the other day.
M agreed that there was nothing of a sexual nature in these emails.[82] She suggested that the emails she was shown were carefully ‘cherry picked’ to show nothing incriminating.[83]
[82] T 181.4.
[83] T 181.16.
M said she did not remember ringing the accused in late 2005 and telling him that he was supposed to be with her and that if Crystal was not with him, M would be. She denied that having realised there was nothing she could do about fulfilling her dreams that she had since she was thirteen she had decided to make up stories against the accused.[84]
[84] T 198.12.
T’s evidence
T is married to M’s mother. At age 13-15, M was living with him and M’s mother, and spending occasional weekends with her father. After a fight with her sister, M moved out to live with her father permanently.[85] Those living arrangements proved to be unsatisfactory. M was with her father for a few months and, when she had turned 16, she was couch surfing. T said M was in year eleven when she left home.[86]
[85] T 206.31.
[86] T 207.1.
T described M as a student in the advanced class on account of her literary abilities.[87] He would pick M up from school.[88]
[87] T 207.22.
[88] T 208.23.
T came home late one night and found M and her mother in a confrontation. There was a car out the front of the house. T said he went out to the car. It was very dark and he could not see inside. He knocked on the driver’s side window. T said he was positive there was an adult male in the car. He asked ‘are you Shane?’ and the person said ‘yes’. T then asked ‘Do you have some sort of relationship with M?’ and the person said ‘No’. T asked ‘Well, are you aware that she's only 15?’ The person said ‘No, she told me she was older’.[89] The window then went up and T went back inside. T thought the man was defensive in that he was old enough to drive a car, was an adult, and yet did not really want to talk to him.
[89] T 212.17.
T said he had asked the man if his name was Shane because his wife had asked him to go and check out who was in the car, adding that she thought it was someone called Shane. T said he had heard the name Shane before in very casual conversation. It was the only time he saw the man. When he went back inside, M rushed out of the house and got into the car.[90]
[90] T 214.38.
T said he thought the car was a light colour and white was his best guess.[91] He denied that it was a blue or deep gold.
[91] T 214.6.
T agreed he had previously said that M left home around the age of thirteen but had corrected this statement since as he had ‘worked the dates out wrong’.[92] He said M had left at around the age of fifteen. He denied having talked to anyone about his error after he gave evidence the first time.
[92] T 216.19.
T said he did not remember picking M up from the Hub library at school. As far as he remembered, the Hub library ‘was further in’ in relation to the car park. He never had occasion to go into the Hub library.[93]
[93] T 218.22.
T disagreed that it could have been the situation that the person in the car was actually dropping off, not picking up, because M left with that person. He denied being confused that some other boy or man may have picked M up and while he could not be certain, because M was very secretive, none of the boys M saw whilst she was living at home drove cars.[94] T agreed he had heard of a boy called Adrian who was in M’s circle of friends and did not know whether Adrian had a motor vehicle.[95]
[94] T 225.32.
[95] T 226.35.
T agreed he and his wife ‘had problems’ with M but denied M would have fits of rage.[96]
[96] T 227.13.
In 2011, M came to his house in the early morning. He and M’s mother had been awarded temporary custody of M’s children and M wanted them back. M smashed windows at the front and the corner windows on their bedroom with a broom or rake from outside. T said that she pulled the curtain rod out and was jabbing at him and throwing pieces of glass, which cut his face. By that stage, his wife and the children were in the bathroom and he was trying to stop M from getting in.[97]
[97] T 230.38.
She was on drugs at the time and had mental health problems. The Family Court granted him and his wife custody of the children on a 50/50 basis with M.
He agreed that M’s report about him to the child welfare authorities was after they had fought and said it was ‘a revenge thing to be honest’.[98]
[98] T 229.36.
Detective Modra
Detective Modra is the Investigating Officer and first became involved in 2006 after M and her father came to police to report the accused. M had provided her with some letters and a school book, which was like a school diary. Detective Modra did not retain those items because she did not think they were relevant. No charges were laid as result of M’s report.
The investigation was reallocated to her on 7 September 2013, after M had made contact with police, asking that the case be reopened.[99] Detective Modra understood that M was at a house and there were some drugs involved. M had spoken with police officers and said that the drugs were as a result of something that happened to her when she was younger, that there was an investigation that had been closed, and that she would like it to be reassessed.[100]
[99] T 223.11.
[100] T 233.28.
After the case was reopened, Detective Modra contacted M, who told her she had new evidence, a diary. M provided a photocopy of a diary that she said she had written when she was a teenager, which had been misplaced for many years. M wanted her to read it and assess the content. She had been told the diary was in a box of M’s old possessions that had been at her mother’s house.[101]
[101] T 234.4.
In cross-examination, Detective Modra said that when she first had contact with M in 2006, there was no content in the documents provided by M that related to sexual abuse and they were not relevant to the investigation. She agreed that she would have explained to M why the documents she had were of no use in the investigation. Detective Modra recalled M had talked about other paperwork that she could not find. In the investigation diary, the officer who briefed Detective Modra recorded on 3 January 2006, the day M first spoke to police, that: ‘During the course of the relationship, the victim made daily diary entries and also wrote letters to friends about the relationship. The victim still has possession of diaries and has been advised by a friend that he’s still - he still has some of the letters that she wrote.’[102]
[102] T 237.29.
Detective Modra said she recalled M saying that she had some other paperwork, but that she could not find it. She agreed that she quite possibly would have told M of the importance of the diary.[103]
[103] T 238.19.
The defence case
The defence called the accused, Alvin Darwin (alibi witness), and Morveen White (character witness).
The accused’s evidence
The accused is 45 years of age and has worked at various libraries. When he first started working for the Onkaparinga Library System he did two days a week at the Hub library. He did not recall doing any more work there until 1999 when he was on secondment, for two or three months. Other than that, he used the Hub library as a member of the public and did some voluntary work there in mid-1996.
He said he first met M during a theatre production in 1997 and did not know her age at the time. The production went for three to four months. During the course of the rehearsals and production, he would, he said, only have had contact with M behind the scenes during rehearsals, when the ensemble cast would all chat.[104]
[104] T 244.1.
He agreed that he gave M a ride home after the second to last performance. Someone asked him if he could give her a lift home.[105] It was pretty late when they left and he took her straight home. As they arrived, M was getting out and there was someone outside standing to the passenger side of the vehicle who said something. He could not remember if it was said to himself or M. He could not remember what the person said and he could not hear clearly.[106] After that he left. He denied he had ever gone to M’s house to pick her up.
[105] T 244.3.
[106] T 245.2.
Between 1996 and 2000 he drove either his VH Holden Commodore (a dark blue sedan) or his Ford Fairlane (a dark gold sedan). At the time he was living in Aberfoyle Park with his parents. They had a dark grey VN Commodore. His older brother had a dark brown Monaro and possibly a deep red Pontiac. At no stage between 1996 and 2000, did he or any family member drive or own a white car.[107]
[107] T 245.30.
He did not have contact with M again until months later ‘in passing’.[108] The accused described his contact with M in 1997 as sporadic.[109] In 1998 he may have had contact with M, most likely inside the Hub library. He was not working there until mid-1998, where he worked for a short period, two days a week. He agreed that he would possibly speak to M in 1998, but he had no memory of any of the conversations. In 1999 he was working for three different Councils at eleven different branches. He did not recall having any contact with M in 1999. He denied ever having any sexual contact with M or telling her he loved her.[110]
[108] T 246.7.
[109] T 246.23.
[110] T 247.18.
The accused said that since he had been charged with the offences, he had attempted to obtain records that may be relevant. There had been difficulties because of the passage of time. He found a bank statement[111] indicating that he made a payment at the caravan park in Melbourne for $67 for the ‘initial weekend’ of a two week stay in Melbourne. He initially planned to move to another caravan park but that looked ‘dicey’ so he stayed at the same caravan park the whole time. He could not find any other bank statements or saving account statements in relation to his stay in Melbourne. What M alleged happened on 6 November 1998 was untrue as he was in Melbourne, where he went sightseeing, including to the zoo.[112] When looking for records he found a receipt for a payment to the Melbourne Zoo which shows a date of 19 November 1998. He denied that he returned to Adelaide at any time between when he was first at the Melbourne caravan park until the time at the Melbourne Zoo. He returned to Adelaide on 20 or 21 November 1998.[113]
[111] Exhibit D10.
[112] T 250.2.
[113] T 251.22.
The accused denied he saw M on 15 December 1998, which was at odds with M’s diary entry for that day. On that date he had lunch with his friend Alvin Darwin at the Marion Shopping Centre.[114] The lunch started at about midday and he was at the shopping centre for about two hours. During those two hours, they went to the food court, had lunch, and talked about a lot of things. At that time he had not seen Mr Darwin for about twelve months as Mr Darwin had commenced a new job in Brunei. After the lunch he looked at some shops and returned to work.
[114] T 252.6.
The accused said that he lost a lot of his email messages once the two megabyte limit was reached on his Hotmail account. He was not sure whether his emails were lost in sequential order. He managed to find some of his emails by scouring through his email account. The exhibits produced to the court were the only emails he could find from M. He agreed that there probably would have been a ‘few other emails’.[115]
[115] T 254.17.

He was aware that in 2004, M was having trouble finding work and he had agreed to help her apply for positions and with interviews. The accused recalled M had telephoned the Noarlunga Library to obtain his phone number.[116] He believed M left a phone number and did not recall having her phone number before that. A few weeks later he called her. She told him she was having a lot of family and drug issues. He spoke to M on and off over the next two or three months because he was concerned about her and she needed someone to talk to.[117] He did not see or hear from her again until she came to his parents’ house and asked to borrow money for food in late 2000 or early 2001. He was out the front of the house with his friend, now partner, Crystal, and he gave M $40.[118] He did not know why he gave her the money, but recalled M was desperate for money for food and he did not see the harm in it.
[116] T 256.36.
[117] T 257.13.
[118] T 258.16.
The next time he saw M was in mid- to late-2001. She called him and told him she had the money to pay him back. He and Crystal both went to M’s house at Blackwood. They had a short conversation and M gave him the $40. The next time he had contact with M was in around mid-2002. With reference to email Exhibit D3, the accused agreed that M gave him her number and that he called her. He went to her house at Melrose Park maybe a week later. She wanted to see him because she was having ‘issues’ again and because ‘she was really desperate’ to talk to someone. The accused said he was at her house for about half an hour. Most of the conversation with M concerned her ‘floundering’, and how her life was a mess. She told him how much she wanted to be in relationship with him and that she had always loved him.[119]
[119] T 260.24.
He did not recall having any further contact with M until 2004. She started talking to him about finding work. He denied ever sending or receiving emails with sexual content. In relation to Exhibit D7, Mr Saunders did not know a ‘Peter Mirky’ and had no idea why she would have said that.[120]
[120] T 261.37.
In 2005, the accused saw M at her new house near the Flinders Medical Centre about three times, mostly going over job interview procedures.[121] They talked about other things like politics and general news. He noticed that she was still using drugs as he saw drug paraphernalia. The accused remembered his last conversation with M was on the telephone towards the end of 2005. M was in a manic, agitated state.[122] She told him she wanted to be in a relationship with him and that if Crystal were not alive they could be in a relationship. It was, she said, her turn to be with him. At some point he told her she was too crazy and that he wanted nothing to do with her. He hung up the phone.[123]
[121] T 262.8.
[122] T 263.3.
[123] T 263.20.
In cross-examination, the accused agreed that he was living at his parents’ house in 1996 and was still living there in 1998. His parents’ house was very close to Aberfoyle Park High School and he had used the Hub library when he was living there.
He agreed he was 23, turning 24, in 1997 when he was involved in the theatre production, where he met M. He denied having spoken to M about how old she was when they met, although agreed he knew that she was not an adult. At the time he took M home on the second to last night of the production, he was living at his parents’ house and took M to her home in Bellevue Heights. The accused said ‘it’s like a 10 minute drive so … it wasn’t too far out of the way.’[124] He agreed that his route home from where they were performing would not normally take him past Bellevue Heights.
[124] T 271.12.
He did not recall having any conversations with M about school at all during the rehearsals. He could not remember the topics of conversation with M and said they would chat about different things.
The accused denied that he took M home on more than one occasion or spent time with her in his car or that he kissed M and groped her breasts.[125]
[125] T 274.29.
The accused said he had not taken M home on the last night of the performance, kissed her or told her that he loved her. He denied that he picked up M one night and T came and spoke to him.
The accused said that nothing of a sexual nature took place with M. He spoke to M only in passing when she was at the Hub library in 1997 and 1998,[126] and did not recall seeing M at the Hub library after school or waiting to be picked up.
[126] T 276.27.
He agreed that he spent most of his life as a young man growing up in the Aberfoyle Park area and was ‘generally’ familiar with that area. He was not aware of public toilets on the oval.[127]
[127] T 295.1.
The accused agreed that there were possibly more emails between himself and M during that period of time than he had produced, but denied he had been selective to ensure they contained nothing of a sexual nature.[128]
[128] T 304.2.
With reference to Exhibit D7, the accused denied that ‘Mirki’ was his nickname for M. He did not recall M having a nickname for him and the only time he was aware of her calling him ‘babe’ is in email Exhibit D3.[129]
[129] T 307.15.
He denied his trip to Melbourne occurred after 6 November 1998.
The accused said that when M asked him if he wanted to have a relationship with her in 2002, that was the first time there was any mention about the possibility of them being in a relationship.
In relation to his visits to M in 2004 and 2005, the accused said he did so because M wanted assistance and it is in his nature to ‘help people’.[130] When it was suggested that he cared what happened to M he said ‘we are friends’, she was having a lot of issues and he saw no harm in spending time with her to help her.[131] He agreed that he was friends with M since he first met her in 1997, but was not aware she had mental health issues.
[130] T 316.18.
[131] T 316.21.
Ms White’s evidence
Ms White has known the accused for 30 years. He is a friend of her son and had stayed at her house many times. She has teenage daughters and said she ‘trust[s] him implicitly’.[132] Her view of his character is that he is truthful and trustworthy. People in the community that know of him say the same thing.
[132] T 282.11.
Mr Darwin’s evidence
Mr Darwin had been a friend of the accused for over 25 years, living in Brunei for the last 20 years. In 1998, Mr Darwin returned to Adelaide in December and met with the accused on 15 December 1998. He recalled the date because 16 December 1998 was the anniversary of his sister’s death.[133] He and his family members lit a candle in her remembrance.[134]
[133] T 285.2.
[134] T 285.8.
Mr Darwin said that on 15 December 1998, he met the accused at Marion Shopping Centre at 12 noon. They had lunch at the international food court and did shopping. He was with the accused from around 12.00pm to 2.45pm or 3.00pm. They spoke about things to do with Mr Darwin’s new job. Mr Darwin denied he could be wrong about having lunch with the accused on that day because they had originally planned to meet on the Wednesday, but made it Tuesday because Mr Darwin was going to spend the Wednesday with his parents, being the day of remembrance for his sister.[135] At Marion he purchased candles for the following day. He also remembered it was at the end of his first year working overseas.
[135] T 285.31.
Analysis
The defence sought to characterise M as a witness who was mentally unstable and prone to fantasy and vendetta. Mr Lyons submitted on the accused’s behalf that the way M wrote in the diary smacks of fantasy and read like ‘like a cheap trashy novel which has pornographic material in it’. Mr Lyons suggested that the diary came about either because M realised in 2006 that she needed more evidence and she fabricated the entries, or because was infatuated with the accused when she was around thirteen, and wrote about her fantasies.
M told police in 2006 that the accused had made suggestive comments in her school diary. I do not doubt that any police officer who had appreciated the remarks as sexually suggestive would have retained the document. The entries M said were made by the accused, which she had copied into her school diary, did not seem to me to be particularly suggestive of anything untoward. In my view it is possible that M had implied more into the entries than someone who was just reading them for the first time. M knew the background, knew what was going on and knew what was happening when the accused is said to have written those entries. Detective Modra did not recall being told M’s school diary contained handwritten entries made by the accused. It may be the case that the entries were more meaningful to M and she is mistaken that she told police about them.
Detective Modra said that M told police about having kept a daily diary when she first reported the matter to police in 2006. That was separate to the school diary and the letters that she was able to show police. M said in cross-examination that she would write in the diary at the end of the day, or a day or two down the track. She agreed that most of the content of the diary concerned the accused. In the prosecution’s submission, at the time she wrote the diary, M was between 13 and 15/16 years of age and in a sexual relationship with an adult male who told her that he loved her. In such circumstances, I accept that there would be nothing unusual in M writing a great deal about her experiences.
While I found it difficult to understand why, when her mother returned the diary to her, M did not go to police with it sooner than she did, I do not accept the submission that M has fabricated the diary. Mr Lyons has confused the evidence as regards the school diary and the diary which she had misplaced. Clearly, in 2006, M had referred police to a diary, which she could not find, which was different to the school diary and letters she had produced to them in 2006. It is in my view, totally implausible to suggest that M fabricated the diary so as to bolster her complaints.
The prosecution chose not to re-examine M on the content of the diary. The two extracts that were tendered by the defence are mostly sexually graphic accounts of what M says occurred between herself and the accused. Perhaps if I had been shown a wider cross section of the entries M made in her diary, I would be in a better position to conclude the diary was genuine rather than as the defence suggested, mere fantasy. When listening to M’s evidence when she was directed to particular entries, aside from the two exhibited entries, I gained a sense that M had used the diary contemporaneously to record the events of a day, and while the focus may well have been on the accused, M had made entries about all sorts of issues and events that a teenage school girl might ordinarily record in such a diary. That the entries I have before me are explicit is not to say that the events M has described are imagined, however without proper context, I have found it difficult to be certain to the requisite degree that they are a genuine record of what occurred between M and the accused.
Mr Lyons submitted that M was someone who would go to extreme lengths if she did not get her own way and reminded me that M had admitted that she asked the accused for a relationship and got angry because that did not happen. M was, Mr Lyons submitted, ‘obstructive’ when she gave her evidence.
M is no doubt a highly intelligent woman. Her manner was at times unusual, however my impression was that she was frustrated with the cross‑examination, rather than being obstructive. As regards her mental health issues, they are not to the extent that I have serious concerns about her reliability or credibility. It is clear that she suffered from depression which was ongoing and also that she had two episodes of major depressive disorder.[136] Both episodes were clearly linked to significantly traumatic episodes in her life, namely the death of her father and her children being taken away from her. M was very frank about her drug problems, acknowledging a previous serious addiction to amphetamines and LSD use. Her response to her father’s death was perfectly reasonable and what you might expect when a young woman is speaking about events that occurred that were traumatic to her. Clearly, she was very attached to her father and was grieving his death. M had thought that the accused loved her and the realisation she came to about his duplicity, no doubt along with any number of other personal issues, plainly had a marked effect on her presentation. The difficulties M has had are in keeping with someone who has been the victim of the abuse which she alleged.
[136] See Agreed Facts 7 and 8.
In submissions, Mr Lyons addressed a number of matters said to be indicative of inconsistency between M’s evidence and the statements she gave to police. For example, in her 2006 statement, there was no mention that the accused groped her breasts after the Rock and Roll Eisteddfod or put his finger into her vagina when sexual intercourse occurred the first time. The attempt to have sex whilst M was up against a wall is said to have not been mentioned in her 2006 statement, nor is there any comment about M being the accused’s ‘concubine’.
Mr Lyons submitted that M’s entry in her diary to the effect that her mother had said ‘if you do want to keep seeing Shane, you may as well be open about it because it is a lot less stressful’ was at odds with M’s evidence that she did not tell her mother about the accused. M said she did not need to because she went out with the accused on a regular basis and her mother let her go out ‘with this man’ because she did not want M running away to live with her father, potentially upsetting maintenance arrangements. My impression of M’s evidence was that she had never told her mother about what was going on with the accused, but that the name ‘Shane’ was not necessarily a secret. Certainly, if I were to find that T’s recollection of speaking to the man outside in a car was accurate, M’s mother knew the accused’s name.
These apparent inconsistencies are not so fundamental to M’s evidence as a whole to cause me to doubt the credibility or reliability of her evidence. M was in my view, doing her best to recall the events accurately. She did, for all of her examination-in-chief, give evidence without reference to her diary. The events she described, even in 2006, were a long time before the actual events, and when she was a young teenager.
I was not troubled, despite Mr Lyon’s urging, by M’s evidence in relation to whether the accused had picked her up from her house, distinguishing between parking in front of the house and actually going to the front door.
Mr Lyons submitted that M’s evidence regarding the accused tying up the condom as it was evidence, was something M dreamt up to try and make it look bad for the accused. M certainly presented as someone who disliked the accused in the extreme, but I do not accept Mr Lyons’ submission that M’s evidence on this issue was inconceivable or fanciful, given that according to M at least, the accused knew of the age difference between them.
That there is no mention in any of M’s statements of having had sex with the accused in her father’s house, I have found more difficult to reconcile. I accept that when sexual acts occur almost as a routine, it is difficult for a complainant to distinguish between one event and another. M said this was the second time that anal sex had occurred and that she had tried to block the event out because the event ‘in particular was disturbing’. While I accept that a complainant may try and forget or supress a particularly distressing memory, M’s contempt for the accused was obvious and would be likely to result in a report to police of something that was so disturbing.
Mr Lyons suggested that it was fanciful to suggest that one of the reasons for M changing schools when she was 13 was because she knew the accused would go there. At the age of 13, M was infatuated with the accused and had a difficult relationship with her mother and adored her father, but was unable to live with him. The accused had told her he loved her. In those circumstances, it is not beyond possibility for M to arrange things so that she felt she was able to keep in touch with the accused.
Mr Lyons submitted that M’s description of her sexual encounters with the accused, particularly those in public places, were pure fantasy. The risk of being found out was so significant that it meant that the events described by M simply would not have occurred. However, such brazen behaviour on the part of the accused, does not of itself cause me to doubt the evidence M gave.
As regards the accused’s lunch with Mr Darwin on 15 December 1998, the prosecution submitted that Mr Darwin’s evidence did not go far enough to say that M was not telling the truth generally, or indeed that her diary entry for that date was not accurate. M agreed that she might have got the date wrong and she was not sure when the accused’s lunch hour was. The accused was working at the time at a library which is not far from Marion. There was time for the sexual act, which M said took no more than 20 minutes, to have occurred before he went to meet Mr Darwin at Marion at 12 noon. There is no evidence before me regarding the timing of the accused’s lunch hour, or any other evidence that would assist on this topic.
Mr Lyons made much of M’s revenge motive and I must consider the possibility of a motive for her to lie. There appear to have been occasions where M has sought to revenge some sort of perceived injustice and her past behaviour is disquieting. It is difficult to accept that if the accused’s contact with M was as sporadic and meaningless as he described, M would have concocted a scheme to inflict such a degree of revenge. Of course, even were I to reject M’s alleged motive that does not necessarily mean that I would find that she has been truthful. I remind myself that it is not for the accused to demonstrate a motive to lie, and that lies can be told for no apparent reason. At all times the prosecution bears the onus of proof beyond reasonable doubt.
The evidence M gave in relation to money she had borrowed from the accused was troubling. I have struggled to accept that the accused would make any attempt to secure the return of the small amount of money he lent to M, against a background of having engaged in unlawful offending, and it would be surprising for this to have occurred in the way she described.
The accused was not an impressive witness. He was eager to deny even innocent interaction with M. His efforts to distance himself from M cannot be reconciled with the email correspondence he produced at trial and his own evidence regarding his visits to her. His attempt to portray himself as someone who ‘helped people’, as the rationale for having been in contact with M, was in my view disingenuous. The email correspondence, even though clearly ‘cherry picked’, demonstrated there was a good deal more to the relationship between himself and M. Likewise, his production of the one and only banking record he was able to find, which coincided with the time of an alleged sexual encounter with M, was unimpressive and reflected poorly on his credibility. While the accused is not required to prove anything, the exhibits do not provide him with an alibi. While the bank statement showed payment to a caravan park, it did not show any information to support the accused’s version of events. The statement was only up to 8 November 1998 and there are no other entries relating to Melbourne that appear. All the zoo receipt showed was that someone bought two tickets to the zoo on 19 November 1998.
In regard to the character evidence of Ms Wright, even people of good character can commit offences for the first time. The accused’s character is, however, a factor to be taken into account both as to the likelihood of the accused committing the offences, and in assessing the accused’s credibility and his denials of M’s allegations.
Conclusion

M made no secret of the fact that she was angry with the accused or that she had sought to damage others who had crossed her in the past. I have analysed her evidence with care. Despite the delay in the matter coming to trial, M was able to give very detailed accounts of what occurred in relation to the three offences and gave consistent accounts, not only in examination-in-chief, but also under lengthy cross-examination. I have found M to be a generally reliable witness and many of the criticisms made by Mr Lyons I have rejected.
In assessing the prosecution case I must have regard to the substantial forensic difficulties faced by the accused. I make no criticism of the delay in M reporting the matter to police. It is not difficult to appreciate that her complaint did not make its way to police until after the accused had declined her approach for a relationship. She had, at least on her evidence, been constantly reminded she was too young to be in a relationship with the accused, she was infatuated with him and understandably reluctant or unwilling to inform on him earlier, when the chance of a relationship might still be open. Beyond the lost opportunity for any medical or DNA evidence, by reason of the delay, the accused has been denied the opportunity, despite my criticisms of his reliance on exhibits D10 and D1, to put before the court other material that may have assisted in demonstrating his absence in Melbourne. He has lost an opportunity to produce work records to show when he was working at the Hub library and confirm his lunch break on 15 December 1998.
I accept that the alibi evidence of Mr Darwin is important. Even without specific evidence on this issue, most lunch hours are between 12pm and 2pm, 12pm to 1pm or 1pm to 2pm. Ordinarily, Mr Darwin could have been mistaken, but his evidence does not allow for that given the timing of his sister’s memorial and the purchase of the candles. M said she may have written the entry sometime later, but that would appear not to have been her usual practice. While I do not accept that the evidence of Mr Darwin necessarily shows M to have been fantasising, it does cast doubt on her evidence as regards that day, which must call into question the accuracy of what she recorded about the events. As I have said, the authenticity of the diary was a matter about which I have been left with some doubt.
While I accept that T was doing his best to accurately recall the events, there were obvious difficulties with his memory, at least in terms of him recalling time frames. He thought the vehicle he saw was white, but could not say for sure. Neither the accused nor any of his family members had a white car. While it may be that the accused could have borrowed a different car, T’s memory of the vehicle does support the defence submission that there could be some confusion in T’s mind as to who he had actually spoken with. I also accept that there is some risk here that T remembers the name Shane because Shane is the focus of this trial.
While I do not accept the evidence of the accused as regards the true nature and the extent of his relationship with M, I have reminded myself that having rejected the accused’s denials does not mean I am able to find him guilty. As set out above, I have found that M was generally a compelling witness, however I remain concerned as to some aspects of her evidence. I must be satisfied beyond reasonable doubt of the charged offences.
In circumstances where I remain uncertain about some important aspects of M’s evidence, despite my rejection of the accused’s evidence, I cannot be satisfied to the requisite standard that the charges against the accused have been proven and must therefore find the accused not guilty.