R v SKY - [2020] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SKY
Criminal Trial by Judge Alone
[2020] SADC 114
Reasons for the Verdicts of Her Honour Judge Chapman
18 August 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The accused is charged with one count of Indecent Assault and five counts of Unlawful Sexual Intercourse between October 2017 and March 2018 when the complainant was aged 15. He was the complainant’s Muay Thai instructor. It is alleged the charged acts occurred at the complainant's home, at the accused's gym and at the accused's home.
Held: The prosecution has not proved beyond reasonable doubt that the acts occurred. The accused is not guilty of all six counts.
Criminal Law Consolidation Act 1935 s 49(3), s 56, referred to.

R v SKY
[2020] SADC 114

The accused is charged with five counts of unlawful sexual intercourse and one count of indecent assault. It is alleged he committed those offences in 2017 and 2018. The complainant was then 15 years of age. The accused was in his early thirties. The accused was the complainant’s Muay Thai instructor. The complainant was a member of his gym.
It is alleged fellatio occurred at the complainant’s home in November/December 2017 (count 1), cunnilingus in the sauna at the gym in late December 2017 (count 2), fellatio at the complainant’s home in January/February 2018 (count 3) and finally fellatio twice (counts 4 and 5) and indecent assault (count 6) on a weekend when the complainant stayed overnight at the accused’s home with her brother in March 2018.
The elements of the offences
In order to prove the offence of unlawful sexual intercourse (counts 1, 2, 3, 4 and 5), the prosecution must prove both of the following elements beyond reasonable doubt:
1.There was an act of sexual intercourse between the accused and the complainant. Sexual intercourse is defined to include an act of fellatio and an act of cunnilingus.
2.The complainant was under the age of 17 years at the time of the act of sexual intercourse.
In order to prove the offence of indecent assault (count 6), the prosecution must prove both of the following elements beyond reasonable doubt:
1.The accused intentionally assaulted the complainant.
2.The assault was accompanied by, or occurred in, circumstances of indecency which must involve a sexual connotation.
Whether or not the complainant consented to any of the acts the subject of the charges is irrelevant because she was under the age of 17 at the time of each of the acts.
In relation to each of the counts, there is no dispute that the act alleged would amount to an act of sexual intercourse or an indecent assault. Nor is there any dispute that the complainant was under the age of 17 years at the relevant time. The issue is whether the prosecution has proved beyond reasonable doubt that the act in fact occurred. The accused denies committing any such acts.
The evidence
The prosecution called 10 witnesses: the complainant, her mother, her brother, four members of the gym, two police officers and a forensic scientist. The prosecution has the burden of proving each of the offences. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of each of the offences to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or probably guilty.
The accused gave evidence in his defence. He also called a character witness and Mr KP, a member of the gym in 2017/18. I have assessed the evidence of the accused and the evidence of the witnesses called in his defence as I would the evidence of any other witness, bearing firmly in mind that by electing to give and call evidence, the accused takes on no onus of proof.
Summary of the prosecution case
The prosecution alleged the accused committed uncharged acts prior to committing the offences. He was grooming the complainant. Those acts included making a comment of a sexual nature to the complainant, touching the complainant, sending her sexually explicit messages via Facebook Messenger/Snapchat/text and causing her to perform an act of fellatio on him when they were interstate. For the reasons that follow, I have not been able to accept the complainant’s evidence about those uncharged acts. They have not been proved to a standard which enables me to find that the accused groomed the complainant, to explain why she might have reacted to the charged occasions as she did or to explain why the accused might have been emboldened to commit the charged offences. I have certainly not reasoned from the complainant’s evidence about them that the accused is of bad character or the type of person who would commit these offences.
The prosecution case is that after he groomed the complainant, the accused committed count 1, then count 2.
Toward the end of 2017, the complainant’s mother saw some sexually explicit text messages between the complainant and the accused and spoke to the accused about them. The prosecution says the accused told the complainant’s mother that ‘nothing had happened’. The prosecution says that was not true. The texts stopped for a while but then started again over Christmas. The accused is said to have committed count 3 in early 2018 and then counts 4, 5, and 6 on one weekend when the complainant stayed overnight at his house in March 2018.
The prosecution case is that rumours began to circulate. Three gym members approached the accused about those rumours in late March/early April 2018. It is alleged he made admissions about text messages to three gym members, Ms K, Ms M and Mr B. It is alleged he made an admission to Ms K of acting upon his sexual interest in the complainant.
The complainant gave detailed evidence about multiple occasions, charged and uncharged. There were other witnesses who touched upon matters relating to those occasions. For that reason, I will summarise the evidence of the complainant in regard to each occasion together with the other evidence about, or touching upon, that occasion. That includes evidence of any inconsistencies in the complainant’s evidence about the occasion as well as any evidence from other witnesses (both prosecution and defence) relevant to that occasion.
There are multiple inconsistencies between the complainant’s evidence and prior statements she has made. The evidence is what the complainant said in court. An out of court statement is not evidence of the truth of what she said (unless adopted by her in court). I have assessed the evidence of the complainant in light of inconsistencies with prior statements, then considered the significance or otherwise of those inconsistencies.
The complainant became a member of the gym
The complainant gave evidence that when she was aged 14 and in year 8, she joined the gym owned by the accused and his wife. Her younger brother had joined a few weeks earlier. The gym was then at its first location (‘first gym’). It later moved to another location. Both the accused and his wife taught the Muay Thai classes. The complainant said she was training mainly with the accused in his classes. She started going to the first gym three to four times a week in the afternoon after school.
After a while, she went to the first gym more often. She was enjoying the atmosphere and the environment. She was also preparing to get ready for her first interclub, which is a series of matches where gyms fight against each other. Training was intense, about five days a week, as well as sparring days on the weekend and running before training. She trained with the accused sometimes in classes and sometimes one‑on‑one.
She gave evidence there was only one occasion when anything inappropriate happened at the first gym. She was cleaning with the accused. She sneezed. The accused said that sneezing was like an orgasm. She said at that point she did not know what that was but she laughed and went along with it.
In April 2017, she travelled to Thailand with her mother and brother as well as other members of the team from the gym. She saw the accused and his wife as role models. She gave evidence that she enjoyed their company and followed them around.
The gym moved in April 2017. The accused and his wife initially lived upstairs, but then moved next door. The complainant gave evidence that the accused’s wife believed it was inappropriate for the accused to be training her as she was a young girl. She started training with the accused’s wife. She felt disappointed.
Facebook Messenger and Snapchat
The complainant gave evidence that after the accused’s wife became her trainer, the accused started sending her messages via Facebook Messenger. Initially, he asked her how training was going. His messages also covered other topics such as music and shoes. He gave her the names of songs to listen to. In her evidence, the complainant described some of the songs as quite inappropriate, such as a song called Rated X which was about sex. She felt a little bit shocked and confused about that.
She said the Facebook messages started off as steady for about a week, but then ‘it exploded pretty quickly’. The accused also sent her messages on Snapchat. She responded to the messages in a friendly way. She felt that he was genuinely concerned about her wellbeing.
No Facebook Messenger or Snapchat messages were tendered.
Evidence of the accused
The accused gave evidence he and the complainant were contacts on Snapchat. He exchanged messages with her via Facebook Messenger, but was not sure if he was friends with her on Facebook at the time. He denied sending any inappropriate messages.
10 June 2017 – Brisbane
The complainant travelled to Brisbane for a fight with the accused, the accused’s wife and Mr KP. Nothing inappropriate occurred with the accused on that trip.
22 July 2017 - Resurrection of the Warrior fight
The complainant gave evidence about what she described as inappropriate touching on 22 July 2017. There was a fight called Resurrection of the Warrior on at Golden Grove that night.
Some of the team members from the gym met at the gym so they could all head to Golden Grove together as a team. Whilst they were waiting, the complainant was sitting on the floor opposite the accused, who was sitting up on the ring at the gym. He moved his hand up and down her leg. Others were present, but from what she observed, they did not see. It made her feel excited, scared and confused. He had never touched her like that before.
During the fight at Golden Grove, the accused sat behind her. He played with her hair, massaged her shoulders and rubbed her neck for about 20 minutes. He had messaged her on Snapchat earlier at the gym saying she looked beautiful, he liked the way she did her hair (which had been straightened) and she looked good in her jeans. When he was touching her at the fight, she was ‘kind of surprised’, but she did not stop him. His wife was sitting in the row in front of her.
The accused drove a car belonging to another team member (Mr RC) back to the gym afterwards. Mr RC was passed out, drunk and asleep on the backseat. The complainant sat in the front passenger seat. The accused asked her to feed him snake lollies. He put his hand in between her legs and was rubbing them. He tried to put his hand up her shirt and down her pants. She told him to stop because she did not like it. He said sorry and stopped. He held her hand for the rest of the trip home.
When they got out of the car, Mr RC walked into the gym. The accused stopped outside and gave the complainant a hug and said, ‘I really want to kiss you’. She felt a little bit scared, but also excited.
Inconsistencies
In cross-examination, the complainant agreed she did not tell the police in her first statement, dated 14 May 2018, that the accused touched her leg with his hand at the gym. She explained that it was her first experience talking to the police; she was scared and stressed. She agreed, however, that being scared and stressed did not prevent her from telling the police he massaged her shoulders at the fight. She said she was trying to remember the major things that happened. She admitted there was not a lot of difference between the accused touching her leg and massaging her shoulders. She agreed that she told the police that the massage was the first physical interaction that had occurred which was not related to training.
The complainant agreed she did not tell the police in her first statement, dated 14 May 2018, about the conversation upon returning to the gym when the accused said he really wanted to kiss her. She said she forgot.
Evidence of the accused
The accused gave evidence that some of them met as a group at the gym then drove to the fight in convoy. He could not recall where he sat whilst they were waiting. He said if he was sitting on the ring, there was no way he could rub the leg of someone who was sitting on the floor. He agreed he could do that if he was leaning forward, but said that would ‘not be very inconspicuous’.
He went to the fight with Mr RC in Mr RC’s car. He denied sitting behind the complainant at the fight. He was not sitting in the stands at all that evening. When their team member Mr PB was fighting, he was standing by the ring during the rounds and then in the ring to coach him between rounds. Afterwards, Mr PB suffered from severe dehydration and had to see the fight doctor out the back. The accused was with him. He watched the other fights from there.
The accused drove Mr RC’s car home because Mr RC had had too many drinks to drive. The complainant was in the passenger seat. Mr RC was in the back. They stopped at Hungry Jack’s on the way. He said Mr RC was lying down for about five or ten minutes, though he could not be sure exactly how long. He also made a phone call to his mother. They also had a toilet stop on the way home for Mr RC. In cross‑examination, he was criticised for giving more detail on this topic than he did when interviewed by the police. He was not sure why he did not give that detail when he spoke to police.
The accused denied any inappropriate touching of the complainant initially at the gym, at the fight, in the car or at the gym when they returned.
Evidence of Mr RC
The prosecution called Mr RC. He gave evidence he did not drive his car home after the fight because he had been drinking. The accused drove his car home, the complainant was in the front passenger seat and he sat in the back. He was sleeping on the back seat after the stop at Hungry Jack’s. In cross‑examination, he said he had no idea whether he was playing on his phone on the way home. He said he might have called his mother. He could not remember much at all about the journey home.
Contact at the complainant’s workplace
The complainant gave evidence that a day or two after the Resurrection of the Warrior fight, the accused came into her work place. After he bought something with a $50 note, he held her hand for a couple of minutes until he had to leave.
In cross-examination, the complainant gave evidence that two other people were working in the takeaway shop at the time, but were out the back cooking.
The accused denied such an occurrence.
Contact at the gym
By mid-2017, the complainant gave evidence she was training five to six days a week, sometimes twice a day. The accused’s wife was still her trainer. Sometimes she would leave school in the morning to go to a class. The school was aware that that helped her with her anxiety. She saw the accused at the gym. They talked about music and were pretty close. She described often making eye contact with the accused during classes. She caught him staring at her. He would bite his lip and wink at her in a suggestive way. It made her feel special. Sometimes they would meet at the bottom of the steps near the toilets at the gym. They went inside the toilets to hug and kiss. He also touched her, grabbed her bottom and tried to put his hand down her pants. She would push his hand away and just hug him. That went on for two to three weeks. It stopped because the accused was scared about people finding out.
In cross-examination, the complainant agreed that she suffered from anxiety in 2017 and had ‘meltdowns’. The anxiety was a longstanding problem which had started as early as 2008. It arose out of bullying at school. She saw a psychologist from 2012 onwards. She found it difficult to establish friendships at school and was a perfectionist. Her inability to achieve the high expectations which she set for herself was part of her ongoing anxiety and a cause of health problems such as weight issues, an eating disorder and anaemia. She was often absent from school. There was an arrangement with the school to enable her to leave early or not go to school at all, but go to the gym instead.
She agreed she had regular meltdowns at the gym. They might occur because she kicked the wrong way or used incorrect or poor technique. On occasions she would cry, start heavy heaving and run out of the gym to the stairs to the toilet. Sometimes the accused would come to check on her, encourage her to come back and give her a pep talk if she was really distressed or give her a hug. Sometimes the accused’s wife or other gym members would console her. When she went home after a meltdown, she would send messages to the accused and his wife apologising for not doing the technique correctly.
Inconsistencies
In relation to her evidence that the accused would try and put his hand down her pants, she agreed that he did not actually put his hand down her pants. She then agreed she told the police on 18 June 2020 that the accused did put his hands down her pants. When asked to explain why there was a difference she said ‘he tried to put his hand down my pants and wanted me to put my hand down his pants’.[1] She agreed she did not say anything in her evidence in chief about the accused putting her hands down his pants. She said she did not forget when she gave her evidence.
Evidence of the complainant’s brother
The complainant’s brother gave evidence he saw the accused and his sister ‘looking at each other weirdly’ at the gym. The accused would always go down to the toilets to see if his sister was okay. The accused wanted to clinch with his sister (part of the boxing where you are really close).
He agreed in cross-examination that his sister had regular meltdowns at the gym. He tried to go and help her on the stairs that lead to the toilet, but she would shoo him away. The accused would come down and tell him to go back to training. He saw the accused’s wife comfort the complainant once.
Evidence of the accused
The accused gave evidence that by April 2017, the complainant was training at the gym just about every day and sometimes twice a day. She was having a lot of meltdowns, causing her to stop training midway through what she was doing and leave the area. That started at the first gym and continued right through the time at the second gym. He understood there were a lot of reasons for her behaviour that included anxiety and her perfectionism. If she did not get something right it would weigh on her mind probably a lot more so than other people. He expressed his concern by talking to her more regularly, trying to be there for her and consoling her when she would have a meltdown. Quite often she would sit on the top of the stairs through the door that led to the toilets. He would go and console her, tell her it was ok and to come back in. He might give her a hug if it was a particularly bad meltdown.
Evidence of other gym members

Ms K gave evidence that the complainant was very flirtatious around the accused at both gym locations. She would follow him and giggle at things that he would do. She trained hard and was always wanting to please the accused. She was prone to meltdowns.
Ms M gave evidence that she saw the complainant training with the accused at the gym. The training with the complainant was like with all the other kids, there was no difference. There was nothing unusual about it. The complainant was sometimes a bit emotional at the gym. She observed the complainant being defiant to her mother, not wanting to be there.
Mr B gave evidence that he became aware of allegations of inappropriate messaging between the complainant and the accused prior to April 2018. As a result of this, he decided to observe their interactions at training. He did not see anything inappropriate.
Mr KP gave evidence that the complainant needed attention, she was always upset and there was always something wrong with her. If she was training and something went wrong, she would completely stop and go down the stairs to the toilet. This behaviour occurred in both 2017 and 2018. He did not see the accused, nor any other person, follow the complainant to the toilet area when she was upset. He did not see any inappropriate behaviour between the complainant and the accused.
Texts, phone calls and visits to complainant’s home
The complainant gave evidence the accused started communicating via text message. The accused said he wanted her to delete his Snapchat so she needed to get his phone number off her mother’s phone and contact him that way. She did that. She saved his name under a pseudonym.
She said the texting would start at about 4.30am when the accused woke up before work and would continue through the day until about 4.00pm when he was getting ready for the classes. It was very frequent throughout the day. He asked her to call him or Facetime him before work started. He said things like ‘I just want to see you naked’ and ‘my cock is throbbing’ and ask her if she was wet. She agreed with what he was saying and would play along with it. She said she was wet or that she was naked before school so that he would keep talking to her. They started a system that involved her going to her mother’s office, which was separate to the house, in the morning so they could talk on the phone. Sometimes he told her, whilst he was driving, that he was jacking off and that he had tissues there for when he finished. Those conversations made her feel a bit uncomfortable, but at the same time she felt really special.
There were times when the accused visited her house and spoke to her mother. She could hear him tell her mother about his marriage, that it was difficult and he was not happy. The complainant said that made her somewhat excited and happy. The accused often told her that he fantasised about their marriage and about his wife’s death and if it ever happened in five years time, they would get married.
The complainant told the accused she loved him. He did not say it back the first couple of times, but there was a time when he said to her that he loved her too and that he had only ever said that to two women, one was her and the other was his wife.
The complainant’s mother
The complainant’s mother gave evidence that the accused came to her house on multiple occasions, usually on weekdays when he was on his way home from work. On a couple of occasions, he was there at around 6:30am; other times, it was in the afternoon, around 3:30pm, 4:00pm. He came to have a coffee, as a friend, and have a chat. They would speak in the kitchen. They talked about Muay Thai and his marriage issues. He disclosed things about his unhappiness and concerns to her. He told her about his concern that if he needed to leave his wife, he would have nowhere to go as he did not have family in South Australia. She told him that she could probably let him stay in her caravan in her shed, but she would need to talk to her husband. The complainant and her brother were present for some of these conversations. The accused’s wife was not aware of the visits. The complainant’s mother said she and the accused had discussed that it was not to be mentioned to his wife.
On one occasion, they talked about his wife’s birthday present. She offered to organise a portrait of his wife’s father (who had recently passed away) to be drawn by a friend in Bali. The accused thought it was a good idea and so she organised the drawing. The accused paid her back in $1 and $2 coins.
The complainant’s brother
The complainant’s brother gave evidence that when the accused came to visit, he talked about his wife, upcoming fights, the complainant fighting and other fighters. He mostly talked about his wife, saying he was not allowed to play PS4 and sometimes it would be hard for him to go out and do things. He said he mainly came over to get away from his wife. It was every second day, if not every day. He said the accused came over once in the morning and the other times were after school or just before school ended when the complainant was home.
Evidence of the accused
The accused gave evidence the text messages with the complainant started in about September 2017. They might start when he got up for work. They might continue all day if she was having a bad day, a meltdown or was injured. Muay Thai was always the predominant topic. There were many conversations that would lead off from there such as weight, eating, food, running and music. He never sent any inappropriate messages to the complainant. He received a couple from her. One was about her dream that they got married in Thailand, about her being wet. Another was about a shower.
He said there were times he visited the complainant’s home from the end of July to early November. The complainant’s mother invited him over if he needed to speak to anybody about anything. He took her up on that. One of their conversations was about his wife’s birthday. She arranged for a friend to draw a picture of his wife’s father for him to give to her as a present. That was before the trip to Perth. He did not have issues with his wife.
November 2017: Trip to Perth
The complainant described an occasion in November 2017 when she travelled to Perth for a fight competition. She stayed at a hotel with her brother, the accused and his wife. On the first night, she and her brother slept on single beds in the same room as the accused and his wife. Her mother was in a separate room. The reason for that was to avoid her mother saying anything that would upset her before the fight. They had to stay focused.
On the night after the fight, she was awake and could not get to sleep. The accused was also awake. They made eye contact. He was biting his lip and asking her to spread her legs. He was doing that using hand gestures and mouthing the word ‘open’. She walked over to him. She was kneeling on the floor next to the bed and he was lying down. The quilt was on his wife. He pulled his shorts down. His penis was erect. He pushed her head onto his penis for a couple of seconds. She choked and that brought it to an end. She got up and walked back to her bed.
In the morning, she went to go and have a shower after breakfast. She was having breakfast with the accused, his wife, her mother and her brother. She announced that she was going to have a shower. A couple of minutes later the accused followed her into the room. He made her take off her sports bra and touched her breasts.
Inconsistencies
In cross-examination, the complainant said the oral sex went for two minutes. She did not know why she said two minutes (in cross‑examination) rather than a couple of seconds (in evidence‑in‑chief). She said it was a long time ago and she forgot. It felt like a couple of minutes at the time. She said her evidence was that it lasted a couple of seconds.
She agreed she did not tell the police anything about choking in her statement, dated 14 May 2018.
She agreed she did not say anything about the shower incident when she gave her first statement to the police. She said that in comparison to the other events, it was not a major event. She forgot.
In cross-examination, she said the accused kissed her as well as touched her on the breasts. She agreed she had not mentioned that in evidence‑in‑chief. She said the kiss lasted a couple of seconds. He touched her breasts for ten seconds. She said that was the extent of it. She then agreed that in her statement to the police, dated 24 May 2019, she said he touched her on the bottom and vagina. She said that did happen. She had forgotten. She could not remember the sequence of events. When challenged about why she described this as not being a major event, she said the accused touched her in those areas too many times to count, so she did not consider it as major as giving him oral sex.
Evidence of the accused
The accused gave evidence he travelled to Perth with his wife, the complainant and her mother and brother. The complainant and her brother participated in the fight competition. He denied any sexual contact with the complainant.
Count 1 (fellatio)
The complainant gave evidence about an occasion in late 2017 when the accused came to her house. She sent the accused a message saying that no‑one was home and he should come over. He came over wearing a high‑vis top which she said he had to wear to work for safety reasons.
She sat on his lap in the kitchen on a bar stool. They were hugging and kissing. He pushed her off, bent her over and was thrusting into her bottom with her clothes on. He was pulling her hair and put her on her knees. He pulled his shorts down and pushed her head onto his penis. He then pulled her up and they moved into the dining room. He sat her down on a chair. He was standing in front of her, in between her legs. She performed oral sex on him whilst he was holding her head and pulling her hair. After about five minutes, he ejaculated in her mouth. She went to the bathroom and spat it out. She tried to wash some of the semen off her jumper that she was wearing.
The accused said if people find out this happened that he was going to get into a lot of trouble. She felt scared.
When the accused left the house, she put the top she was wearing (Exhibit P8) under some clothes in the laundry. When it came back into her bedroom, she kept it hidden in her wardrobe. It was later seized by the police.
Inconsistencies
In cross-examination, she agreed she did not tell the police in her statement on 14 May 2018 there was oral sex in the kitchen before they moved to the dining room. When asked what the sequence of events was she said, ‘I don’t know which sequence occurred at that time as the same event happened two to three times at my house and they are all similar so I don’t know which one corresponds with that date’.[2] She agreed the events would have been fresher in her memory then, but did not now know the sequence.
In cross-examination, she agreed she told the police in her original statement that she was struggling to breathe and was choking. She did not think that was different to what she said in court. Rather, she said it was just not mentioned.
Forensic evidence
Ms Oliva Handt, a forensic scientist, gave evidence about the examination of Exhibit P8 at Forensic Science SA on 18 July 2018. There were areas on the front of the top and the right sleeve which fluoresced under a polylight (a light source used to try and find potential semen stains or blood which is not easily visible using the naked eye). There was a negative result using an acid phosphatase test which is a presumptive test for the presence of semen.
Ten cuttings were taken from the top and viewed under a microscope to see if sperm was present. There were very low levels of sperm observed on cuttings numbers 8 (one sperm head and epithelial cells) and 9 (one sperm head). An AP30 test (another presumptive test for semen) was carried out on the remaining cuttings. The only positive result was for cutting number 2, which was adjacent to cuttings 8 and 9. An AP30 test is not specific for semen. There can be false positives, such as from urine.
Ms Handt gave evidence that a negative result for the acid phosphatase test, but a finding of sperm heads, is something that can be observed if an exhibit has been washed.
The cuttings with sperm heads were the subject of DNA testing focussing on the male chromosome. There was very little DNA present. From the partial DNA result obtained, Ms Handt expressed the opinion it was a profile from at least two male contributors. It is not possible to say whether the DNA came from the sperm cells, the epithelial cells or both. The partial profile was compared to the accused’s DNA profile. He could not be excluded as a contributor (the information visible in the partial profile could be explained if he was one of the two contributors) but a statistical weighting could not be provided. She was unable to distinguish one male contributor from the other because the result was so weak.
Ms Handt gave evidence she could not say when the sperms or epithelial cells came to be there. A few publications have shown it is possible to transfer sperm from an item of clothing on to other items which are washed together in a washing machine.
I consider Ms Handt was qualified to express those opinions in evidence. There was no objection to her qualifications or to this being a topic which called for expert evidence. I accept her opinions, which were not challenged by the defence.
Count 2 – cunnilingus
The complainant gave evidence about an occasion when the accused performed cunnilingus on her in the sauna at the gym. She could not remember when it was. One afternoon she was sitting in the sauna by herself wearing a sports bra and underwear. The accused came inside the sauna. He said, ‘just quickly’. He immediately spread her legs apart, pulled her underwear aside and licked her vagina for 15 seconds or so. He then looked up at her, smiled and as he walked out, he turned around, grabbed his shorts and smiled at her.
In cross-examination, she agreed that it was the duty of the accused’s wife to run and supervise the sauna. There was a rule that no‑one under 18 could use the sauna without supervision. She said that the accused’s wife was less strict with those who were regular gym members. She said she was in there for about 30 minutes. Others had been using it before she did. It was a Saturday. Everybody was using it for recovery after a sparring session. She agreed she had not said in her police statements that he said to her ‘just quickly’.
Evidence of the accused
The accused gave evidence the sauna was supervised by his wife. He denied ever being in the sauna alone with the complainant. The sauna was not used very often during the hotter months.
The complainant’s mother sees text messages
The complainant gave evidence that one day when she was at school she realised that she had left her mobile phone in the car. She used her teacher’s mobile to call her mother and asked her to come back so that she could have her phone. Her mother met her in the car park. She was angry. On that day, the complainant did not stay at school, rather she went home. She understood that her mother had seen messages between herself and the accused on the phone.
As a result, the complainant messaged the accused immediately. She also rang him on his lunch break. The accused was upset and angry and asked what kind of messages her mother had seen. The complainant told him that she had seen all of them. The accused said that if the police show up at work, he was going to stab himself. He sounded scared. She felt very scared and sad. She tried apologising to him and said that she would make sure that the police would not get involved. She said that because she thought she loved him and that was what he wanted.
In cross-examination, she agreed she made no mention in her police statement of 14 May 2018 of him being angry during the phone call or of her saying she would not get the police involved. In re‑examination, she agreed she had said in her statement, dated 24 May 2019, that the accused was shouting at her.
She gave evidence the text messages stopped for a while, but then they started up again around Christmas 2017 when the accused sent her a text saying that he hoped she had a good Christmas and new year.
She continued to train with the accused’s wife. Her interactions with the accused after she told him about her mother finding the messages was minimal.
On 6 January 2018, the complainant’s mother had her birthday. They went to a shack to celebrate. The accused started messaging the complainant and asked her to call him. He told her that he could not stop thinking about her, that he was fantasising about his wife’s death and that it would be a chance for them to be together. It made her feel like everything was going to be okay and nothing had really changed. The two of them continued to text each other. The texts were about his fantasies and what he wanted to do to her.
In cross-examination, she agreed she told the police in her statement, dated 24 May 2018, that he called her rather than messaged her. She also did not mention to the police what the accused said about his wife’s death. She was not sure why she did not include that in her statement.
The complainant’s mother
The complainant’s mother gave evidence that after the trip to Perth and maybe in late January/early February 2018, she saw text messages on the complainant’s phone. She had dropped the complainant to school. Later that day, she received a phone call from the complainant on a number she didn’t recognise. The complainant told her that she had left her phone in her car. Her mother told her that after she had finished running the errands, she would bring the phone to the complainant at her school. She went to get the phone out of the car and checked through it. She opened up the phone and found messages of a sexual nature, saying things such as ‘a throbbing cock’, questions about how ‘wet’ the complainant was, and a reference to showers. She put the phone number into her phone and it came up with the accused’s name. She was not sure who sent which messages, but there were messages of a sexual nature both incoming and outgoing from the complainant’s phone. She drove to the school and the complainant came out to collect her phone. She told the complainant that she had located messages on the phone. She asked the complainant if anything beyond text messaging had occurred.
A couple of days after finding the messages, she asked the accused to come and see her at her house as soon as possible. He arrived at her house around 6.30am, 7.00am the next morning. They had a conversation standing at the kitchen bench. The complainant and her brother were in the house, but were not present for the entirety of the conversation. She told the accused that she had seen inappropriate messages on the complainant’s phone. She was not sure if she mentioned the content of the messages. She voiced her disappointment and pointed out that he was an adult and the trainer of her daughter. She said that she did not expect this behaviour from him and it had to stop. The accused was very upset. He assured her that nothing physical had happened and that it would stop. He begged her not to discuss it with anybody or let anybody know. She understood this to mean he did not want her to tell his wife. He was at her house for between 10 to 15 minutes.
In cross-examination, it was suggested to her that the complainant was present for the conversation. She said that the complainant did come in at some stage. She had previously told the complainant that she was going to have the meeting with the accused. She said she told the complainant that she needed to look at the accused as her trainer, but then conceded that she possibly said as a friend. She conceded that she told the accused that she wanted them both to remain as friends. She denied she said he was welcome to come over at any time. She could not remember if she walked him to his car. She denied giving him a hug goodbye and saying, ‘I know the bad messages came from [the complainant]’.[3] She did not recall a conversation with him at the car, but she did say to him in the house that he would be in trouble if anything physical was to happen with her daughter.
The complainant’s brother

The complainant’s brother gave evidence he overheard his mother say to the accused in their kitchen, ‘Why are you fucking texting my daughter’. He said the accused looked really scared. He said he was in and out of his bedroom every five minutes to grab a drink of water or something. The accused said he did do it, but there was nothing physical. He was there for about half an hour.
The accused’s evidence
The accused gave evidence the complainant told him her mother had seen messages. He thought this was in November 2017. The complainant’s mother told him he should come for a visit. The conversation occurred in the kitchen in the complainant’s presence for five to ten minutes. The complainant’s mother said she had found some messages, the conversation was very polite, she was talking more for the complainant’s benefit. She stated that the accused was married, that messages like that were inappropriate and she should look at him as no more than a friend and trainer. The complainant’s mother then followed him to the car, told him the bad messages were from the complainant, told him not to tell his wife and she would not tell her husband. If her husband knew then he would kill the accused. She gave him a hug and told him he was welcome back any time. He did not continue to go to their house.
The accused gave evidence that sometime after that, the complainant’s mother had been posting photos of kids at the shack, running up and down the stairs. He texted the complainant along the lines of ‘training doesn’t stop’.
Count 3 – fellatio
The complainant gave evidence about a time in January 2018 when the accused came to her house in the morning. The only other person home was her brother. She made the accused a coffee. She went to wake her brother up because he had to get ready for school. When she came back, the accused pushed her down on her knees and made her give him oral sex in the kitchen until they heard her brother get out of bed and come and make breakfast. When her brother left to go and have a shower, the accused pushed her back down again and made her finish giving him oral sex. She believed he ejaculated on that occasion. The accused then left and she went to school.
In cross-examination, she said she woke her brother up because she did not want to give the accused oral sex on this occasion. She wanted her relationship with the accused to be more than sexual. She was trying to do what made him happy.
Inconsistencies
The complainant agreed that when she gave her statement to the police in May 2018, she told them she did not think the accused ejaculated on this occasion.
The complainant’s brother
The complainant’s brother gave evidence the accused came over once in the morning, around 6 or 7 when he got to work and they did not need him at work.
Complainant’s statement to GP on 31 January 2018
The complainant saw a general practitioner on 31 January 2018 because of a concern about mood swings and iron deficiency. The general practitioner took a history from the complainant. In cross-examination, the complainant could not remember if the general practitioner asked her if she had suffered any sexual abuse. It was an agreed fact that she was asked that question and her response was ‘no’.
The accused on the complainant’s bed
The complainant gave evidence about an occasion when her parents were going out. Her mother had asked the accused and his wife to take them home that night and had made some food for dinner. The accused rode his motorbike over separately. He got there before them. The complainant rang him to tell him where to find the key and to turn the food on in the oven. When he was on the phone, he said that he was in her bedroom, lying on her bed. He said her bed smelt like sex. He had rubbed his penis all over her pillow.
Evidence of the accused
The accused gave evidence that he never went into the complainant’s bedroom, wiped his penis on her pillow nor said that her bed smelt like sex. He said that his wife asked the complainant to call him and tell him that they were picking up another child and he could go in and turn on the oven. He told the complainant that he was not going to do that, he had just gotten a motorbike so he went for another ride and pulled up at the house just after the car.
Trip to Whyalla – March 2018
The complainant gave evidence about going to Whyalla for a team trip in a van in March 2018. They stayed at a motel in Whyalla. The accused sat by the pool and watched her swim. On one occasion, he swam passed her and grabbed her bottom with his hands. When they were down at the beach, she ended up on the accused’s shoulders as they were walking along the walkway. Photos were tendered showing the complainant on the accused’s shoulders.
On the way back to Adelaide, on the bus, the complainant was sitting across from the accused. He was sitting on a double seat with his legs spread apart. He pulled his shorts to the side so that she could see his penis. He bit his lip and looked at her.
On another occasion, on the bus, she was lying on the front two seats and had a blanket over the top of her. The accused put his feet in between her legs, his toes underneath her underwear and he was playing with her vagina with his toes under the blanket. This was directly behind the accused’s wife (who was driving) and the complainant’s mother (who was in the front passenger seat).
Inconsistencies
In cross-examination, the complainant gave evidence that on the occasion the accused put his toes between her legs, her legs were leaning on an esky. She agreed that was the first time she had ever mentioned an esky.
Evidence of the accused
The accused denied swimming in the pool at the hotel. He denied grabbing the complainant’s bottom in the pool. He did not believe it was inappropriate for the complainant to be on his shoulders on the walkway. His wife and the complainant’s mother were there. Months had passed since he had received inappropriate messages from the complainant.
He could not recall if he ever sat on the single seat of the bus on the way home. He slept for a good portion of the journey. He was not sure if there was an esky on that trip with some drinks in it, but said it was a possibility. His wife was driving and the complainant’s mother sat in the front passenger seat. He denied exposing himself to the complainant on the trip home. He denied putting his toes between her legs.
Evidence of KP
Mr KP gave evidence that he swam in the pool at Whyalla. The accused did not use the swimming pool. The accused was upstairs, taking photographs of them from above. On the bus trip home, the accused sat on a double seat on the first or second row. He thought the complainant was sitting on the single chair either one or two rows in front of Mr KP. The accused was asleep for most of the trip. He saw an esky right at the front. He did not see if the accused had his legs on the esky.
Counts 4, 5 and 6
The complainant gave evidence that on a weekend at the end of March 2018, she and her brother stayed at the accused’s house. She stayed there on numerous occasions.
The complainant gave evidence that on this weekend, she was sitting on the couch in the games room with a blanket over her, in between her brother and the accused. It was mid‑morning before her mother came to pick them both up. The accused put his hand under the blanket and in between her legs. He brushed his fingers up and down her vagina. That incident is the subject of count 6.
There was another occasion when others were playing outside on the scooters. She and the accused walked inside. She went to the bathroom. On her way out, the accused was in the hallway. They hugged and kissed. She performed oral sex on him whilst on her knees and he was standing. It went for a couple of minutes; she could not remember whether he ejaculated. That incident is the subject of count 5.
She thinks on that weekend they went to the Mannum waterfalls. Whilst they were walking, the accused touched her on the bottom. Afterwards, they went to his wife’s mother’s house. The two of them kissed and hugged in the games room.
The next weekend, the accused and his wife left for Thailand. She did not have any further contact with the accused. She became aware that he had been arrested by the police.
Inconsistencies
The complainant did not give any evidence about count 4 during evidence‑in‑chief. In cross‑examination, she said she was lying on the couch at the accused’s house, after putting the beds together in the upstairs area of the gym. The accused came up to her, she sat up, he pulled his shorts down and forced his penis in to her mouth (count 4). She got up, then went to the bathroom and as she came out, he pushed her down on her knees and she gave him oral sex until he ejaculated (count 5).
She agreed her initial evidence about count 5 was that she came inside and went to the toilet and the accused met her there. It did not include count 4. She agreed she told the police in her statement on 24 May 2018 that on one of the occasions, the kids were playing on their scooters, she went to the toilet, the accused followed her, pushed her to her knees and made her give him oral sex. She said she believed that she was recalling the same occasion (counts 4 and 5), but from different angles.
She agreed that when she gave a statement to the police about Mannum, she told the police about kissing, but did not mention hugging.
The complainant’s brother
The complainant’s brother gave evidence there was one occasion when he stayed at the accused’s house. Other children present were his sister and the accused’s foster son. They watched a film in the lounge room that night. In the morning, he and the accused’s foster son were riding push bikes around the back.
Evidence of the accused
The accused gave evidence that the complainant and her brother did not stay overnight on that occasion. There had been a haircut fundraiser at the gym that weekend. After that finished, the complainant, the accused and his wife were assembling beds in the loft of the gym. Then they did some tidying at their place. He and his wife dropped them both at their home afterwards.
The complainant stayed overnight on only one occasion. That was on 3 March 2018. That was a future fighters event. The complainant’s mother was very drunk and the children asked if they could stay. They slept with his foster son in the lounge room.
Alleged admission to Ms K
In early March 2018, at a sparring day at the gym, Ms K, a member of the gym and a friend of the accused’s wife, confronted the accused about allegations she had heard. She said, ‘I’ve heard some big allegations, I just want to confirm that these allegations are right because they could ruin someone’s life’.[4] She told him she had heard there had been ‘Fifty Shades of Grey’ messages sent. She described the accused as shocked and as white as a ghost.
Ms K gave evidence there was a phone call from the accused not long after that day. He asked if she would help him to tell his wife what was going on, but asked to hold off because they were heading to Thailand for a gym trip and did not want to ruin the trip for everyone. She said that was fine. They did not discuss what it was that his wife would be told.
Ms K gave evidence that on the Thursday before the accused flew to Thailand, the accused rang her from work. He asked how they would tell his wife when they return from Thailand. Ms K said they would tell his wife when Ms K picks them up from the airport. She said to him ‘I need to know the whole truth, I don’t want to walk into this blind, you need to tell me everything that has happened because I don’t want to get sideswiped’.[5] She said he was crying. He said he had to go because he was at work. She said it was ‘not the best line’. She said to him ‘You need to tell me, you can’t be this upset for just some messages’. Ms K gave the following evidence:
He said, I can’t recall exactly what he said, whether it was a hand job that happened or it was a head job, whether he gave it or [the complainant] gave it.[6]
Ms K gave evidence she received a text from the accused when he was in Thailand to the effect that he had told his wife.
The defence challenged the reliability of Ms K’s evidence. She agreed she had a serious accident in April 2017 from which she suffered post‑traumatic stress for 18 months. She was not asked by the police to give a statement until 23 April 2020. She agreed that in her statement she did not say she described the messages to the accused as ‘Fifty Shades of Grey’ messages. She said the phone call just before the trip to Thailand was a short conversation, the reception was bad and she is not 100% certain about what was said.[7]
Evidence of the accused
The accused gave evidence that Ms K said that she heard some pretty serious allegations coming from the complainant’s mother who had also mentioned extortion. He was shocked, taken aback. About a week or more later, he called her from work to try and find out exactly what she had heard. He told her nothing has happened. He said ‘they [the complainant and her mother] are fucked in the head’. The phone reception was terrible.
Alleged admission to Ms M
Ms M gave evidence about a five‑minute conversation with the accused at the gym before the accused left for Thailand in 2018. She said Ms K was also present. She said she did not go into much detail about the allegations. She said ‘Look, we’ve got something we need to say. We’re hearing allegations about you and [the complainant] that there’s something going on, there’s messages, what’s happening? You really need to tell [your wife] before you go on this holiday or, you know, we’re going to’.[8] She said he was really shocked and there was a lack of response from him. She gave him a hug because she felt bad that she had confronted him. She was pretty sure he said he was going to tell his wife, but not before the holiday.
Evidence of the accused
The accused gave evidence that right before the Thailand trip, there was a conversation between the three of them outside the front of the gym. Ms M said there were some pretty serious allegations circling through the gossip circles and he needed to address them. She asked if anything happened and he said nothing had happened. He was shocked. He could not believe that the complainant’s mother was expanding not just the circle, but the lies.
Alleged admission to Mr B
Mr B was a member of the gym and managed staff where the accused was employed in 2018. He spoke to the accused and his wife in his office after they returned from Thailand. He asked the accused about the truth of the matter. He thought he had referred to ‘messaging’ or ‘inappropriate messaging’. He did not know if the complainant’s name was mentioned, but said ‘it was basically implied’.[9] The accused said he had sent some messages but that was all, the rest of it was not true. He was quite distraught, upset and crying.
Evidence of the accused
The accused gave evidence that Mr B said he had heard some pretty unsettling rumours about messages between the complainant and the accused. The accused said they were messaging back and forth and that was the extent of it.
Letter from complainant
The complainant gave evidence that she wrote a letter to the accused prior to his trip to Thailand in 2018. She gave the letter to her mother to give to the accused when she was dropping them at the airport. In the letter, she told him that she would stop training at the gym, that she didn’t want to do it anymore and that he should be respectful to his wife. She drafted several copies of the letter before she made the final version because she wanted to make sure what she was saying was the right thing without sounding too angry; she wanted it to make sense. She kept a copy of the draft letter, which was tendered by prosecution (Exhibit P16).
Evidence of complainant’s mother
The complainant’s mother gave evidence that her daughter gave her a note to give to the accused at the airport. She gave him the note while they were standing at the back of the car loading the suitcases, before she drove the accused and his wife to the airport. The accused’s wife was not present when she gave it to him.
She looked at the note before giving it to the accused. The note tendered by prosecution was a rough draft of the note that she handed to the accused.
Evidence of the accused
The accused gave evidence he received an envelope from the complainant’s mother prior to leaving her house. He opened it at the airport. The exhibit P16 was not a copy of the letter, which was much longer than that. Some of the things in the exhibit are the same. He showed the letter to Mr KP, then threw it away.
He was cross-examined about why he accepted a lift from the complainant’s mother to the airport when he knew she was spreading rumours. He gave evidence it was organised by his wife, who organised all accommodation for fight shows and travel.
Evidence of Mr KP
Mr KP gave evidence that the accused gave him a letter to read at the airport when they were in the bathroom. Exhibit P16 looked a little bit like it, but the one at the airport was a bit longer. He read it and gave it back to the accused. He did not see what the accused did with it then.
Complaint
The complainant gave evidence that apart from speaking to the police, she did not have a conversation with anybody about what happened between herself and the accused.
In April 2018, when the accused was in Thailand, her mother came up to her in the kitchen. Her mother was teary and asked the complainant if she had ever given the accused oral sex. She cried and did not give her an answer. She said she was sorry, that she did not mean to and she did not want the accused to hurt himself.
The complainant’s mother gave evidence that prior to the accused leaving for Thailand, she became aware of an allegation that the complainant had given the accused oral sex. On Easter Monday, or the next day, she discussed the allegation with the complainant when they were in the kitchen. She told the complainant that she needed to tell her exactly what happened between her and the accused. The complainant replied, ‘Nothing Mum, nothing’.[10] She was very upset. The complainant’s mother replied that she had heard otherwise and heard that the complainant had given the accused oral sex. The complainant collapsed on the kitchen floor crying. She said that the accused told her that if she told anybody he would have stabbed himself or go to gaol.
Discussion
The complainant gave evidence in a quiet and considered manner. The prosecution case is that her evidence is supported to some extent by the evidence of the accused’s phone records and examination of exhibit P8 that she provided to the police.
The number of text messages from the accused, and the timing of those text messages (starting at around 4.30am), over a period of some six months raises my suspicion about the nature of his interest in the complainant. I am troubled by the absence of any evidence of the number and timing of incoming text messages and calls from the complainant’s phone. The investigating officer gave evidence that the police were not asked to get the reverse call charge records. She said generally they find that the bar is now really high for getting anything from people’s phones because of privacy considerations. She also said that the accused was initially charged with communicating to make a child amenable and so the focus was on the outgoing calls from, rather than the incoming calls to, the accused’s phone. In my view, that does not explain why the call charge records from the complainant’s phone were not obtained. I am concerned that the phone records show only one side of the story. Because I do not have the other side of the story, the texts and calls from the accused’s phone are not properly in context. I am therefore cautious about inferring too much from those records, given that they are incomplete.

The prosecutor submits there is no dispute that there was two‑way mobile phone traffic. That only leads to possible speculation, however, about whether the complainant was instigating that two‑way traffic and how many text messages or phone calls she made to the accused. The evidence is one sided; the other side cannot be the subject of speculation.
The prosecution submits that the complainant’s evidence regarding count 1 is supported by the examination of exhibit P8. There is only the word of the complainant that she was wearing that top on the occasion of count 1. The location of what was probably semen on the top certainly makes me suspicious about the allegation the subject of count 1.
There was a very small amount of DNA from which the Forensic Science SA obtained a partial profile. At least two males contributed to that DNA. It is not possible to say whether that came from epithelial cells or the sperm cells or both. The result was very weak. The prosecution submits that I should not be troubled by the fact that there are at least two male contributors to that mixed DNA profile because the complainant lives in a household with her brother and her father. However, their DNA profiles were not the subject of evidence nor compared to the mixture to see if they could be contributors. I am troubled by the evidence that there are at least two male contributors to the mixed DNA profile. It is a bit of a mystery as to how two male DNA profiles could be obtained from such small cuttings from the complainant’s jumper, particularly as it seems it was washed then left in a cupboard until seized by police.
The prosecution submits that the strength is really in the presence of the sperm rather than the actual DNA analysis. However, the prosecutor did not make an application pursuant to s 34L of the Evidence Act. The prosecutor submits that reliance should be placed on what evidence there is in the trial, that evidence being an occasion of oral sex with the accused. A difficulty with that approach is that the evidence is of at least two male contributors to that DNA profile and a lack of evidence to explain how that could be, especially if the top had been washed.
The prosecution also submits that the accused groomed the complainant leading up to count 1. However, I have some difficulties with accepting that evidence.
First, there were no Facebook messages or Snapchat messages tendered by the prosecution in relation to the initial contact between the two of them.
Second, the complainant’s evidence about the accused touching her on the evening of the Resurrection of the Warrior fight was unusual. Her description of the alleged touching at the gym whilst they were all waiting to leave for the fight did not ring true. She said it was the first time he had touched her like that. For the touching to have occurred as she described, it would have been obvious to anyone around the gym that he was touching her in that way. The accused would have had to reach over and down to the floor from where she says he was sitting in order to touch her leg. I find it unlikely that someone intent upon grooming the complainant would touch her for the first time in such public circumstances. The fact she did not mention this touching to the police in her first statement does detract from the complainant’s credibility on this point because she claims it was the first time she says the accused touched her in that way.
The complainant’s evidence about the circumstances of the accused touching her at the fight does not ring true. I find it unlikely that he would touch the complainant for around 20 minutes in the stands which would have been in full view of other attendees, including those from his team. I cannot discount the accused’s evidence as a reasonable possibility. His evidence does ring true. The prosecution has not disproved the reasonable possibility that the accused was coaching one of the gym members during a fight and then watching from a distance whilst that gym member was treated by the fight doctor because he became dehydrated.
In relation to the car journey after the fight, Mr RC does not remember much. There is no dispute that the complainant was in the car with the accused and Mr RC on the way back from the fight. The photographs taken at Hungry Jack’s, which was a stop on the way back, show Mr RC awake and part of the group. He certainly was not in a sleeping stupor at that point of the journey. I have doubt about the complainant’s evidence that the accused held her hand for most of the journey after the stop at Hungry Jack’s whilst Mr RC was fast asleep, particularly in light of my doubt about the rest of her evidence about that evening.
Overall, it is not the riskiness of the behaviour per se that causes me some doubt. The setting for some of the allegations for that evening is beyond risky. The touching is said to have taken place in full view of others, which does not ring true in itself but also, does not accord with the concept of the commencement of a grooming process.
During cross‑examination, it became apparent that the complainant suffered from considerable anxiety, and had done so for years. There is no dispute that manifested itself at the gym in the form of regular ‘meltdowns’. In that context, the allegation the complainant makes about the accused hugging and kissing her in the toilet area was risky behaviour. There was only the one toilet area for the gym. Further, if this was an occasion of a meltdown, which was not clear from her evidence, then everyone would know that the accused was there with the complainant.
Again, there was an inconsistency between what she said in court and what she told the police about the touching that occurred in the toilet area. She told the police that the accused did put his hand down her pants. That was not her evidence. Her evidence was that he tried to. When she was confronted with her prior statement, she gave evidence that he wanted her to put her hand down his pants.
There is no doubt that the texts and phone calls in the latter part of 2017 from the accused’s phone are suspicious, however, there is a deficit in the evidence about that, which I have addressed at [141] to [142] above.
I find her description of what she alleges occurred in Perth to be so risky as to be fanciful. If the complainant is to be accepted, there had been physical contact between them in terms of touching, hugging and kissing. However, in the hotel room at night in Perth, she alleges she performed oral sex upon the accused. Not only is that a significant escalation, but the setting is one of a hotel room where he is lying in bed next to his wife and her brother is sleeping in the room. She alleges that she choked within a couple of seconds of that act. However, ‘choking’ was not something that she mentioned to the police.
There is inconsistency in the complainant’s account of what happened in the room in Perth the next morning. Her original evidence was that the accused told her to remove her sports bra and then touched her breasts. She added in cross‑examination that he kissed her. When she gave her statement to the police in May 2019, she said that he touched her on the bottom and vagina. When confronted with that in court, she said that did happen, but she had forgotten when giving her evidence. When pushed to describe the sequence of the incident, she could not do it. That is understandable, however, her explanation lacked credibility. She described this as not being a major event. She gave evidence that was because the accused touched her in those areas too many times to count. I found that to be a troubling explanation. She had not given evidence that the accused had touched her vagina many times, let alone too many times for her to count. No examples were forthcoming.
Her evidence about the occasion the subject of count 1 was also affected by a number of inconsistencies. Her explanation for those inconsistencies was unsatisfactory. She agreed that she did not tell the police in her first statement that there was oral sex in the kitchen before they moved to the dining room. Whilst that on its own might not cause me too much concern, her explanation does. She said, ‘I don’t know which sequence occurred at that time as the same event happened two to three times at my house and they are all similar so I don’t know which one corresponds with that date’.[11] Not only does that cause me some doubt about her reliability in terms of whether she is remembering this particular occasion, but it also troubles me in terms of the other times about which she has not given evidence which are supposedly so similar. This was also an occasion about which she told the police that she was struggling to breathe and choking. That was not her evidence in court.
The complainant’s evidence of the occasion the subject of count 2 was again an allegation of very risky behaviour on the part of the accused. She gave evidence that the accused said to her ‘just quickly’ before he committed the act of oral sex in the sauna. She had not attributed the words ‘just quickly’ to the accused when she gave her police statements. Her setting was one where there were other people around. Others had been using the sauna, she said, after a sparring session that Saturday. I am cautious about her evidence on this occasion because of the riskiness of the alleged behaviour, although that factor on its own does not cause me to doubt her evidence. Mr KP, however, gave evidence that the accused’s wife would always have to be there to supervise the sauna when it was used, otherwise no‑one was allowed to use it. I found him to be a credible witness.
The evidence from the complainant’s mother about the text messages she saw on the complainant’s phone was puzzling. The complainant’s mother gave evidence that she saw messages of a sexual nature. She said she was not sure who sent which messages, but there were messages of a sexual nature, both incoming and outgoing, from the complainant’s phone. Her description of the messages that she saw matched the description of messages that the complainant gave in her evidence. I got the impression from the complainant that there were a lot of messages of a sexual nature with the accused. It was curious that the only ones described by the complainant and the mother were matching.
The complainant’s mother gave evidence that after confronting the accused, she did nothing further about it. The reason was because her daughter was otherwise enjoying and benefitting from her time at the gym. In light of her daughter’s anxiety issues, she did not want to undo that benefit. Whilst that is an explanation that could be understandable, it seems from the evidence that she then proceeded to tell other people about the text messages, so much so that those people confronted the accused about those text messages in early 2018.
There was also evidence from the accused and others about the complainant’s mother’s use of alcohol at the gym. The complainant and her mother denied that. I am not sure their denials were true.
There is an inconsistency in the complainant’s evidence about count 3 in that she believed the accused ejaculated on that occasion, but told the police the opposite in May 2018. This also goes to the reliability of her account, given her evidence that this happened so many times she was unable to remember the sequence of one occasion as opposed to another.
The complainant’s brother did not impress me as an independent witness. He gave evidence that the accused came over once in the morning. He did not give any further evidence about the circumstances of what happened on that occasion. It was clear to me that he was aware of the nature of the allegations, despite his attempt to distance himself from such knowledge.
Further, around the time of count 3, in the context of her anxiety and eating problems, the complainant told her general practitioner that she had not encountered any child sexual abuse. It is not clear to me whether that was the phrase used by the general practitioner when she asked the complainant about that topic. It may be that the complainant did not think of what she says was happening with the accused as child sexual abuse. Nevertheless, it is evidence of the complainant, on the prosecution case, possibly lying about what was going on with the accused.
There is also evidence on the question of whether the complainant made up an allegation of a sexual nature against another person, Mr KP. She gave evidence that she and Mr KP kissed and touched during the Brisbane trip in the middle of 2017. Mr KP gave evidence denying that anything occurred in Brisbane. At the time of trial, he was 16 which makes him about two years younger than the complainant. The complainant’s mother gave evidence she saw a message her daughter was sending to a friend saying ‘some stuff about something that had gone on in a room’ with Mr KP. That concerned her and she raised it with her daughter. She said the complainant made no admission of what had gone on nor did she deny that anything had. She denied that the complainant said she had made it up. It is implicit that the complainant’s mother took the matter no further. In light of Mr KP’s evidence, I cannot discount the possibility that the complainant made up that allegation.
In relation to the evidence of uncharged acts on the trip back from Whyalla, I do not believe the complainant’s evidence that the accused exposed his penis to her on the bus. It was not a big bus. They were surrounded by other people from the gym. Further, the mechanics of the accused allegedly putting his toes between her legs, were difficult, which she then tried to explain by reference to an esky (which she had not mentioned before). This was all supposed to have occurred behind her mother, who was sitting in the front passenger seat on the bus, and the accused’s wife, who was driving. The complainant explained that no‑one realised what was going on because she had a blanket over her.
In relation to counts 4, 5 and 6, the accused said there was only one occasion when the complainant and her brother stayed at his house. The weekend alleged by the complainant was not that occasion.
The complainant’s brother gave evidence about one occasion when they stayed at the accused’s house, but no evidence about when that was or the circumstances.
One concern about the complainant’s evidence in regard to counts 4 and 5 (which are supposed to have occurred one after the other) is that when she gave evidence‑in‑chief, there was no evidence at all about count 4. It was only when she was cross‑examined, that the complainant gave some evidence about count 4. However, when she gave that evidence, it did not fit with her account of the occasion which was count 5. Her version in cross‑examination was that she performed oral sex on the accused when she was on the couch (count 4), then she went to the bathroom and as she was coming out, performed oral sex on him again in the hallway (count 5). Her evidence‑in‑chief, however, was that in relation to count 5, she and the accused came inside, she went to the bathroom and then she performed oral sex on him in the hallway. When confronted with the difference between the two and the difficulty of reconciling the two, she said she believed she was recalling the same occasion, but from different angles.
The complainant gave evidence that count 6 occurred when she was sitting on the couch between her brother and the accused with a blanket over her. It is alleged that the accused put his hands under the blanket and in between her legs. There was no evidence about why the three of them were sitting on the couch that morning. Again, it seems unlikely that the accused would engage in that behaviour when the complainant’s brother was sitting right next to the complainant. There was no evidence from the complainant’s brother about sitting on the couch with the accused and his sister that morning. His evidence was that he was outside with the accused’s foster son riding push bikes.
The evidence from Ms K and Ms M about their conversations with the accused in early March 2018 does not go so far as to be admissions by the accused about sending text messages of a sexual nature. On their evidence, he did not make an admission about the texts being of a sexual nature.
It is not possible for me to determine what the accused is alleged to have said to Ms K over the telephone. She did not know. She could not recall whether he said it was a hand job that happened or a head job or who gave it to whom. There was also evidence that the phone reception was terrible, which leads to doubt about the reliability of that evidence. I am not prepared to use that as evidence of a sexual interest toward the complainant on the part of the accused.
I found the evidence of Ms K and Ms M to be troubling in the sense that their approach to the accused was infected by gossip and a desire to know. There is no suggestion they wanted to know for the purpose of protecting other children. I got the impression they wanted to know simply because it was the talk of the gym. That causes me to doubt the accuracy of their recall of the conversations with the accused.
The evidence about the letter written by the complainant to the accused is disconcerting. The complainant’s mother gave evidence that she opened the letter and read it before she handed it to the accused. I find that to be odd behaviour, namely, a mother handing a letter like that to the accused and saying or doing nothing about it. It seems to fit in with the evidence of others about the source of the gossip being the complainant’s mother.
I am unable to use the evidence of the conversation between the complainant and her mother in April 2018 as being evidence of consistency on the part of the complainant. According to the complainant’s mother, the complainant denied that anything had happened with the accused. She did, however, become very upset and it sounds like she had a meltdown. Given her history of anxiety, that distress could be due to any number of things.
I found the accused’s evidence to be thoughtful and considered. He has no relevant prior convictions. He called good character evidence. I have taken that into account when considering the credibility of his evidence and the likelihood of whether he committed these offences.
He gave evidence that the complainant might text him all day if she was having a bad day, a meltdown or had injuries. He denied ever sending her inappropriate messages. He said he would just carry on the conversation if he received messages from her which had a sexual content. Previously, the complainant’s mother had asked him not to mention anything to the complainant about the Mr KP allegations in Brisbane because of the complainant’s mental state. That is why he just kept on with the normal conversation and ignored the sexualised texts. He said there were no inappropriate messages from the complainant after the meeting with her mother.
I consider that the accused would have been better not to have texted the complainant so frequently. However, I found his answer to the question about his non‑responsive texts to the complainant’s inappropriate texts to be given in a straightforward and credible way.
I have considered the evidence as a whole (including the evidence of the frequency of the text messages from the accused’s phone and the forensic analysis of exhibit P8) and considered each count separately. I am unable to accept the evidence of the complainant to the standard of beyond reasonable doubt. There are too many inconsistencies. The settings for some of her allegations do not ring true. I am unable to discount the denials of the accused as a reasonable possibility. He was a credible witness.
Despite the evidence of the text messages from the accused’s phone and the forensic analysis of the complainant’s jumper, I am unable to be satisfied beyond reasonable doubt in regard to any of the charged occasions.

I find the accused not guilty of each of the counts.

[1] T187.

[2] T137.33.

[3] T275.

[4] T294.

[5] T297.

[6] T297.

[7] T304 – 305.

[8] T314.

[9] T330.

[10] T265.

[11] T137.