R v Soergel - [2023] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SOERGEL
Criminal Trial by Judge Alone
[2023] SADC 92
Reasons for the Verdict of his Honour Judge Muscat
19 July 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING AN UNLAWFUL SEXUAL RELATIONSHIP
The defendant is charged with maintaining an unlawful sexual relationship with a child.
Verdict: Not Guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 12AB, 13BA, 34M, 34P, referred to.
Murray v R (2002) 211 CLR 193; Douglass v R (2012) 86 ALJR 1086; R v Weragoda [2021] SASCA 123, applied.
R v Jones [2018] SASCFC 80; R v Van Wyk [2018] SASCFC 138, considered.

R v SOERGEL
[2023] SADC 92

Charge

Robin Soergel (‘the defendant’) is charged on an Information with the following offence:[1]
[1] The particulars of the sexual acts in the Information were amended at the start of the trial on 3 July 2023.
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robin Soergel, between the 31st day of December 2010 and the 1st day of February 2017 at Munno Para and other places, maintained an unlawful sexual relationship with JTM, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards JTM, namely:
(a) causing JTM to masturbate him on more than one occasion;
(b) inserting his fingers between JTM’s labia majora on more than one occasion; and
(c) asking JTM to touch his penis on more than one occasion.
Trial by judge alone
The defendant pleaded not guilty to the charge and has elected to be tried by judge alone.[2]
[2] Notice of Election to be tried by Judge Alone made pursuant to s 7(1) of the Juries Act 1927 dated 14 June 2023 and granted on 28 June 2023.
Legal principles
The defendant is presumed to be innocent of the charge. He is not required to prove anything. The obligation is upon the prosecution to prove the charge and to do so beyond a reasonable doubt. The prosecution must also exclude as a reasonable possibility any matter raised by the defendant that might affect proof of the charge.
Elements of the offence
The offence of maintaining an unlawful sexual relationship with a child is comprised of the following elements, each of which must be proved beyond reasonable doubt by the prosecution:
1.The defendant was an adult throughout the relevant period particularised in the charge.[3] This is not in dispute. The defendant was born on 28 October 1976.[4]
2.JTM was under the age of 17 years throughout the relevant period encompassed in the charge.[5] This is also not in dispute. JTM was born on 8 November 2006.[6]
3.There existed a relationship between the defendant and JTM. This is not in dispute as the defendant was in a relationship with JTM’s mother and had frequent contact with JTM.
4.The defendant engaged in an unlawful sexual relationship with JTM.
An unlawful sexual relationship is a relationship in which an adult engages in two or more sexual acts with or towards a child over any period alleged in the particulars.[7] An unlawful sexual act means any act that constitutes, or would constitute (if particularised), a sexual offence.[8] The prosecution has alleged sexual acts in the particulars that would amount to the offences of aggravated indecent assault, unlawful sexual intercourse with a person under the age of 14 years and aggravated inciting or procuring a child to commit an indecent act.
The prosecution must prove that the defendant committed two or more of any of the particularised unlawful sexual acts.
5.The defendant knowingly maintained the unlawful sexual relationship with JTM. In this context ‘maintained’ has its ordinary meaning; that is ‘carried on’, ‘kept up’, or ‘continued’. In other words, there must be some continuity of sexual conduct and not merely isolated sexual acts. For example, it would not be sufficient if two or more sexual acts occurred on the same occasion.
[3]     See s 50(12).
[4]     P4 Agreed Fact 3.
[5]     Section 50(12).
[6]     P4 Agreed Fact 1.
[7]     Section 50(2) and (5).
[8]     See definition of unlawful sexual act in s 50(12).
Issue in dispute
The sole issue in dispute is whether that alleged unlawful sexual acts occurred on two or more occasions as JTM stated.
Background
At the relevant time the defendant was the partner of JTM’s mother, CT.
CT has two children, JTM[9] who was born on 8 November 2006 and CTM who was born on 2 February 2010.
[9] JTM was born biologically a female. JTM now identifies as a male. As the alleged sexual abuse occurred during the period that JTM identified as a female and given the nature of some of the alleged unlawful sexual acts, female pronouns will be utilized when referring to JTM’s evidence. No disrespect to JTM is intended by this.
CT and the defendant met in January 2011. At the time CT was living in Gawler West with her children, JTM and CTM.
CT said that she and her children moved into a house in Munno Para in November 2011, about one week after JTM had turned five years of age.
CT described the relationship with the defendant as an ‘on/off’ one. CT said they separated in December 2016/January 2017. At that time of the final separation JTM was aged 10 years.
While the defendant never moved into CT’s home, he would frequently stay there overnight, initially between two to three nights a week and later from 2015 to the end of the relationship for between three to four nights a week.
CT said that there were periods during the relationship when there were brief separations when the defendant would not attend CT’s home for between one and two weeks.
JTM’S evidence
JTM’s evidence was comprised of two prescribed interviews conducted by Detective Zacher with JTM on 15 April 2021 and 12 July 2022. Each prescribed interview was admitted into evidence pursuant to s 13BA(3)(b) of the Evidence Act 1929.[10]Additional evidence given by JTM at a pre-trial special hearing pursuant to s 12AB of the Evidence Act[11] was also admitted pursuant to s 13BA(3)(a) of the Evidence Act.
[10] Admitted by Judge Schammer at the initial hearing on 31 October 2022.
[11] The pre-trial special hearing was heard before Judge Schammer on 23 November 2022.
Each prescribed interview was tendered into evidence[12] as well as the recording of JTM’s evidence taken at the pre-trial special hearing.[13] Transcripts have been tendered in relation to each recording.[14]
[12] P1 (15 April 2021) and P2 (12 July 2022).
[13] P3.
[14] P1A (P1); P2A (P2) and P3A (P3).
JTM gave evidence of four specific occasions where she alleged being sexually abused by the defendant.
First occasion - grandmother’s house
JTM said that the first time the defendant behaved inappropriately towards her was when she was aged 4 or 5 years.[15] JTM said that she had just started reception at the Munno Para Primary School.[16]
[15] P1A 36.
[16] P2A 106;112.
JTM said that her mother wanted the defendant to collect something from JTM’s grandmother’s house. JTM said the defendant asked her to accompany him there.
JTM said that when they arrived at JTM’s grandmother’s home her grandmother was not there.[17] JTM said that she was sitting on the couch in the loungeroom while the defendant was looking for the item her mother had sent him there to collect.[18] JTM said that she remembered the window roller shutters to the loungeroom were shut.[19]
[17] P2A 121 - 122; T 10.8
[18] P2A 50.
[19] P2A 46.
JTM said that the defendant entered the loungeroom and asked her if she wanted to touch his penis.[20] JTM said that this just ‘came out of nowhere’.[21]
[20] P1A 38; P2 76.
[21] P2A 44.
JTM said that she replied ‘no’ to the defendant’s request.[22] JTM did not remember if the defendant responded to her refusal.[23]
[22] P2A 44.
[23] P2A 74.
JTM said that she felt confused and scared as she did not know what the defendant was referring to but thought that it ‘wasn’t exactly a good thing’.[24]
[24] P3A 9.15.
JTM said that she did not see the defendant’s penis.[25]
[25] P2A 65 - 66.
JTM said that the defendant told her not to tell anyone[26] and this made her more scared.[27]
[26] P3A 9.26.
[27] P3A 10.5.
JTM said the defendant found what he was looking for at her grandmother’s house and they then returned home.[28]
[28] P2A 88.
JTM said that upon arriving home she immediately told her mother that the defendant had asked her if she wanted to touch his penis.[29] JTM said that her mother asked her if she was sure and 100% positive that is what the defendant had asked. JTM said that she responded that she was.[30]
[29] P1A 40; P2 44.
[30] P2A 100 - 102. This part of the conversation does not form the basis of evidence of complaint pursuant to s 34M of the Evidence Act 1929 and will not be considered by me in assessment of the degree of consistency of JTM’s conduct in disclosing the alleged incident.
JTM said that the defendant was then ‘banned from their house’ for a couple of months[31] but that the relationship between the defendant and JTM’s mother later resumed.[32]
[31] P2A 44.
[32] P1A 40 - 42.
Second occasion - laundry
JTM said that the next occasion she was sexually abused by the defendant occurred in the laundry at her home.
In JTM’s first prescribed interview JTM said she believed that she was still aged between four and five years when this incident occurred.[33]
[33] P1A 80.
However, in the second prescribed interview, JTM was unable to say how long after the first occasion this incident happened, other than it was not in the same year as the first occasion because the defendant had spent some time away from their home.[34] JTM said that she knew ‘for a fact that it wasn’t in the same year as the grandmother’s situation’.[35] JTM said she thought that the defendant had spent eight months away from their home.[36] JTM also said that she thought her sister CTM was either in kindergarten or had just started primary school at the time of this incident.[37]
[34] P2A 128; 136 -138.
[35] P2A 136.
[36] P2A 140.
[37] P2A 134.
Under cross-examination at the pre-trial special hearing, JTM said that she was aged about ‘seven, eight, nine, that age range’.[38] JTM explained her reasoning for this was because the defendant was banned from the house for a period of time, and she did not recall anything that would have happened between the defendant’s return and being in the laundry on the occasion he abused her there.[39]
[38] P3A 30.23.
[39] P3A 30.27.
JTM was asked about the discrepancy between these ages and what she had said about being four or five years of age in the first prescribed interview. JTM said that she had been ‘thinking about it and yeah’.[40]
[40] P3A 30.31 – 31.4.
JTM said that she was in bed when the defendant entered her bedroom and asked her to go to the laundry.[41] JTM also said that when she was in bed she could hear that the shower was running (and so her mother was having a shower).[42]
[41] P1A 42.
[42] P2A 124.
JTM said that she went with the defendant to the laundry where he asked her to touch his penis.[43] JTM said that the defendant was standing in the doorway[44] and she was standing near the washing machine when he asked her to do that.[45]
[43] P1A 42.
[44] P1A 50; 55; P2A 124; T 14.10.
[45] P2A 124; P3A 14.3.
JTM said when the defendant asked her to touch his penis she replied ‘no’.[46] JTM said that the defendant asked her multiple times and eventually she said ‘yeah’.[47]
[46] P2A 124.
[47] P2A 124.
JTM said that the defendant then unzipped his pants and removed his penis.[48]
[48] P2A 124.
During the first prescribed interview JTM said that she placed her hands on the defendant’s penis and he told her to ‘pump his dick’ (her words not the defendant’s).[49]
[49] P1A 60; P3A 15.
During the second prescribed interview JTM said the defendant wrapped her hands around the his penis.[50] JTM said the defendant asked her if she could ‘move it [the defendant’s penis] for him’.[51] JTM said the defendant guided her hands and placed them around his penis and moved them up and down.[52] JTM said that she masturbated the defendant and felt his penis becoming hard.[53] JTM said she felt ‘scared, numb and disgusted’.[54] JTM said she had never done anything like that before and it ‘just didn’t seem like a good thing’.[55]
[50] P2A 124.
[51] P1A 60; P2A 124.
[52] P3A 15.23 - 26.
[53] P3A 16.18.
[54] P3A 16.22.
[55] P3A 16.24.
JTM said she masturbated the defendant until he told her to stop.[56]
[56] P3A 64.
JTM said that she heard the shower go off and the defendant then retracted from her and told her to wash her hands and go to bed.[57]
[57] P2A 124; P3A 16.36.
JTM said the defendant also told her, ‘Make sure you never tell anyone’.[58] JTM said that this made her feel scared.[59]
[58] P1A 82 - 84; P2A 124.
[59] P3A 17.6.
Third occasion - laundry
During the second prescribed interview JTM was asked if there was another incident that occurred in the laundry. JTM responded by saying that she does ‘not fully remember – no’.[60] However, JTM then went on to describe another incident in the laundry.
[60] P2A 145 - 146.
JTM said that when she was aged between six and seven years[61] she was in bed when the defendant asked if she wanted to come to the laundry.[62] JTM said that she ‘felt that her mother was probably in the shower again’.[63]
[61] P1A 88.
[62] P2A 194.
[63] P2A 180.
JTM said the defendant was standing in the middle of the laundry[64] and that he pulled his pants down.[65] JTM said the defendant removed her ‘bed pants’ and underwear and told her to lay on the floor.[66] JTM could not recall whether the laundry door was open or closed.[67]
[64] P3A 18.31.
[65] P3A 18.26.
[66] P1A 88; P2A 176 - 178.
[67] P3A 19.16.
JTM said the defendant then grabbed her hands and guided them towards his penis and she started masturbating him.[68]
[68] P3A 22.30.
In the first prescribed interview JTM said that the defendant ‘lubed his fingers with his saliva’ and then ‘fingered’ her.[69] During the pre-trial special hearing JTM said that the defendant ‘put his finger in his mouth and sucked on it’[70] before he touched her vagina with it.
[69] P1A 94.
[70] P3A 20.31.
In the second prescribed interview JTM said the defendant used his fingers to ‘tease’ her vagina.[71] JTM also said that the defendant used one of his fingers and started rubbing it all over her vagina.[72]
[71] P2A 148.
[72] P2A 150.
JTM said the defendant did not do anything else with his fingers[73] but later said the defendant touched the ‘outer parts [of her vagina] but that his fingers didn’t go inside’.[74] JTM confirmed that the defendant’s fingers did not enter her vagina. JTM said the defendant was just ‘placing his finger on the outer lips’.[75]
[73] P2A 150.
[74] P2A 158 - 160.
[75] P2A 202 - 212.
Under cross-examination during the pre-trial special hearing, JTM said that the defendant ‘traced his fingers along the outskirts of my vagina’.[76]
[76] P3A 29.3.
JTM also said the defendant put his fingers inside her vagina ‘only slightly’.[77] JTM clarified this, saying that the defendant ‘didn’t put it like up up, he just like put it inside if that makes sense’.[78]
[77] P3A 29.6.
[78] P3A 29.17.
JTM was asked to clarify her evidence about this and said:[79]
AWhat I mean by that is he put them inside but, like, only slightly. So, I would say like it was about like the halfway point between the two creases of your fingers.
QSo you are saying he didn’t actually put them inside your vagina. Is that right.
AHe put them in. It’s just that he didn’t put them like all the way in.
[79] P3A 29.22 – 28.
During the second prescribed interview JTM said that she was not sure where the defendant was positioned[80] but then during the pre-trial special hearing she said that the defendant was kneeling between her legs.[81] JTM described feeling ‘numb and scared’.[82]
[80] P2A 168.
[81] P3A 20.25; 21.16.
[82] P3A 21.20.
JTM said that she was ‘pretty sure’ that she told the defendant that she didn’t want to do it and he then just stopped.[83]
[83] P2A 182.
JTM said the defendant then removed his fingers from her vagina and that he then made a comment about his ‘pre-cum.’[84]
[84] P1A 98.
JTM said that the defendant told her to pull her pants up, wash her hands and to go back to bed.[85]
[85] P1A 104.
Fourth occasion - bedroom
During the first prescribed interview JTM said that she ‘vaguely’ remembered an incident in her bedroom.[86] JTM said ‘Pretty much all I remember is something happening. I don’t remember what it was but then he had to call it off quick because Mum got out of the shower’.[87]
[86] P1A 118.
[87] P1A 120.
The interviewer later returned to this incident:
QDo you remember what was happening at that moment that he had to stop?[88]
A I believe he had his fingers in my vagina again.[89]
AWe were by the door. He was on the floor just kneeling and he had his fingers going in and out of my vagina and then he heard the shower go off and he quickly got up, told me to pull my pants up and to go to bed.[90]
QWas there anything else that was happening when he was had his fingers in your vagina?[91]
AI don’t know if this is just memories or mushing together. Like I believe he might’ve been jerking himself off as he was doing it.[92]
[88] P1A 137.
[89] P1A 138.
[90] P1A 150.
[91] P1A 151.
[92] P1A 152.
JTM thought that this incident happened after the others that she had recalled[93] and also that it was the last time she remembered being sexually abused.[94]
[93] P1A 154.
[94] P1A 163 - 164; P2A 260.
This incident was explored further in the second prescribed interview and at the pre-trial special hearing.
JTM said that she was wearing pyjamas.[95] She said that she may have been nine years of age but was unsure.[96] JTM said that her mother had just gotten into the shower when the defendant came into her bedroom.[97] The bedroom door was slightly ajar.[98] The defendant asked her to get on the floor and she complied.[99] The defendant then told her to take off the bottom half of her clothes.[100] The defendant then removed his penis from his pants and placed her hands over it telling her to start moving it.[101] During the pre-trial special hearing JTM said that the defendant had removed his pants and told her to put her hands on his penis.[102] JTM said the defendant placed the ‘pre-cum’ onto his fingers so that he could insert his fingers inside of her vagina.[103] JTM also said that the defendant started coating his fingers with the ‘pre-cum’.[104] JTM said there was no ‘movement action’, the defendant just ‘put them in’.[105] JTM said that on this occasion the defendant’s finger penetrated her vagina. JTM demonstrated by placing her fingers inside the opening of a tissue box in the interview room.[106] JTM said that the defendant was kneeling on the floor[107] and also said that his penis felt hard and gross.[108]
[95] P3A 22.24.
[96] P2A 298.
[97] P2A 218.
[98] P3A 22.18 – 21. JTM indicated a distance of about 15cm.
[99] P2A 220; P3A 22.4.
[100] P2A 220.
[101] P2A 220.
[102] P3A 23.9.
[103] P2A 220; 224.
[104] P2A 236.
[105] P2A 226.
[106] P2A 222.
[107] P2A 242.
[108] P2A 250; 252.
Under cross-examination at the pre-trial special hearing JTM said that the defendant did not put his fingers all the way into her vagina and that his fingers had gone in as she had described during the second laundry incident.[109]
[109] P3A 29.32 – 37.
Evidence of discreditable conduct

JTM said that the defendant would make comments to her about his penis getting hard or soft. JTM said the defendant would say things such as how his penis misses her or how his penis was flaccid and that she could help him (presumably to make his penis hard).[110] JTM said the comments started when the defendant returned to their family home after he had been banned following the first incident at her grandmother’s home.
[110] P1A 120, 122, 124, 126; P2A 262; P3A 24.6.
During the pre-trial special hearing JTM was asked how often the defendant made these comments. JTM said that they ‘weren’t frequent but whenever we were out, he would sometimes lean over and whisper in my ear’.[111] When specifically asked to nominate a level of frequency these comments were made, JTM answered ‘Probably maybe like five, six times a month’.[112]
[111] P3A 24.12.
[112] P3A 24.16.
The prosecution relies upon this evidence as demonstrating that the defendant had a sexual interest in JTM, therefore making it more likely that he committed the unlawful sexual acts particularised in the charge by acting upon that sexual interest.[113] The defence did not object to the use of this evidence for this purpose.
[113] Section 34P(2)(b) of the Evidence Act 1929.
Based on JTM’s evidence about these comments, I find that if they were made as she alleged then they must have been made after the first alleged incident in the laundry, which is when JTM alleged the defendant first caused her to touch his penis and masturbate him. This is because that was when JTM first described the defendant’s penis becoming hard. It follows that the permissible use of this evidence is confined to the alleged third and fourth occasions.
If JTM’s evidence about these comments is accepted, then this is the only use to be made of the evidence. The evidence, of itself, cannot prove the offence.
CT’s evidence
CT said that her children got on well with the defendant and that they ‘enjoyed each other’.[114]
[114] T 47.35; T 49.33.
JTM started reception at the Munno Para Primary School in 2012 when JTM was five years of age.[115]
[115] P4 Agreed Fact 6.
CT said that in 2012 her mother and her mother’s husband were living in China. CT’s mother’s husband had secured employment in China during 2012 requiring them to move overseas.[116]
[116] T 58.1 - 35.
During her mother’s absence from South Australia, CT said that she would look after her mother’s house for her by dusting and wiping the inside, checking on the mail and tending to the garden.
CT said there was one occasion when she asked the defendant to check the mail and water the garden at her mother’s house. CT said that she wanted a break from mothering JTM[117] and had asked JTM to attend with the defendant. CT said that JTM did not want to attend but that she told JTM that JTM had to because CT ‘had enough’ and so JTM then accompanied the defendant to CT’s mother’s house.[118] CT said the defendant was given the keys to her mother’s house so that he could access the rear yard to water the garden.
[117] T 60.12.
[118] T 60.1 - 5. This is in contradistinction to JTM’s recollection where JTM said the defendant had asked her to accompany him to her grandmother’s house to collect something her mother wanted.
CT said that when the defendant and JTM returned from CT’s mother’s house JTM, ‘in a matter-of-fact tone’, spoke to her and said ‘Mum, Rob showed me his penis’.[119]
[119] T 59.28.
CT said she asked JTM ‘What do you mean by that?’. CT said JTM answered that the defendant had laid down on the lounge in CT’s mother’s house and proceeded to unzip his pants, remove his penis and had asked JTM to touch it.[120] CT also said that JTM told her that JTM was standing when the defendant had laid on the lounge and exposed his penis when he was asking JTM to touch it.[121]
[120] T 59.28; 61.15.
[121] T 61 21-38.
CT said that she was in shock over what JTM had disclosed and so asked JTM to repeat it to make sure that CT had not been mistaken about what JTM had said.[122]
[122] T 61.1.
CT said she told JTM ‘If he [the defendant] had done this then he needs to go to gaol, and we need to go to the police’.[123]
[123] T 77.17 - 19.
CT said that JTM did not exhibit any signs of distress when making the disclosure.[124]
[124] T 60.35.
CT said that she immediately approached the defendant and asked him to accompany her outside to the backyard where she asked him what had happened at her mother’s house and told him that he had ‘better speak and speak very quickly’.[125] CT said the defendant responded by saying that he did not know what she was talking about.[126]
[125] T 62.16.
[126] T 61.1.
CT said that she then told the defendant what JTM had disclosed and using ‘colourful language’ she asked him to explain what happened.[127]
[127] T 63.2.
CT described the defendant as being in a state of ‘shock and detest’ when she was telling him what JTM had divulged.[128] He denied the accusation and said that he would kill someone if they did that and that if he [the defendant] had behaved like that then he should go to gaol.[129]
[128] T 77.3.
[129] T 65.35.
CT said the defendant told her that he was inside the toilet at her mother’s house when JTM had opened the door and had seen his penis while he was urinating.[130]
[130] T 63.6; 63.36.
CT said that she was confused, as she was faced with very conflicting accounts, and wasn’t sure who to believe or what to accept.[131]
[131] T 77.17.
CT did not say that following JTM’s disclosure that she had ‘banned’ the defendant from attending the house, as JTM had said occurred.
JTM’s disclosure did not signify the end of CT’s relationship with the defendant. As CT said, she did not know who to believe. While not specifically agreeing during cross-examination, it is implicit that CT must have considered what the defendant had said was a plausible explanation as her relationship with the defendant continued.
CT agreed that her childrens’ good relationship with the defendant continued thereafter until CT and the defendant finally separated some years later.[132]
[132] T 69.32 – 38.
CT did, however, after JTM’s disclosure, make a point of speaking with her children at the beginning and end of every school holidays, to remind them of ‘community safety’. This included discussing with her children such matters as ‘stranger danger, fire safety and inappropriate touching’.[133] CT said that she was very careful in explaining to her children the meaning of the word ‘inappropriate’ and also that her children understood the meaning of their ‘private parts’[134] during these discussions.
[133] T 66.16 - 67.22.
[134] T 79.1.
CT said that whenever she would speak with her children on these occasions that she would specifically ask each of them ‘So nobody has touched you or asked you to touch them?’. CT said that her children always answered ‘no’.[135]
[135] T 79.4.
CT repeated that upon specific questioning on the topic of being inappropriately touched or being asked to touch someone, JTM never disclosed that the defendant had ever touched her inappropriately.[136]
[136] T 66.20 - 23; 78.33 - 79.9.
It is significant that contrary to JTM’s evidence when JTM was aged about 11 years JTM had disclosed to CT that the defendant had touched her inappropriately, CT said that no such disclosure was ever made by JTM.[137]
[137] T 69.3 – 69.10.
CT said that JTM and the defendant got on very well; that they appeared to be close; that JTM very much enjoyed spending time with the defendant and doing things with him; that JTM never appeared frightened of the defendant and that JTM often wanted to spend time with the defendant.[138] CT confirmed that this was the position both before and after JTM had made the disclosure over what had allegedly happened at JTM’s grandmother’s house.[139]
[138] T 69.12 – 24.
[139] T 69.32 – 70.3.
Serena Boberic
Ms Boberic was JTM’s reception teacher at the Munno Para Primary School in 2012.
Ms Boberic said that she and JTM were sitting together in the classroom with Ms Boberic listening to JTM read. Ms Boberic said when this was occurring the other children were playing elsewhere about the classroom.
Ms Boberic said that JTM leant in towards her and spoke in a quiet voice, as if what JTM was saying was a secret.[140]
[140] T 86. 3 – 12.
Ms Boberic said that JTM disclosed to her that JTM had been at her stepfather’s house (who JTM had referred to as Rob, (the defendant)), and that Rob had walked into the loungeroom. Ms Boberic said that JTM told her that she was sitting on the couch. JTM said Rob had a towel wrapped around himself and that he opened the towel and exposed himself to JTM (that is, the defendant showed JTM his penis).[141]
[141] T 85.27; T 89.15 – 89.24.
While Ms Boberic could no longer remember the exact words JTM used during this disclosure, Ms Boberic said that JTM’s ‘message was clear, and she (JTM) had used gestures’.[142]
[142] T 89.20 – 24.
Ms Boberic said that JTM did not say the disclosed incident had taken place at her grandmother’s house. Instead, Ms Boberic confirmed that she had a memory of JTM saying that it occurred at ‘Rob’s [the defendant’s] house’.[143]
[143] T 89. 38 – 90.4.
Ms Boberic made a mandatory notification to the Child Protection Service over JTM’s disclosure later that afternoon or evening.
It is an agreed fact that JTM does not recall speaking with Ms Boberic about the defendant.[144]
[144] P4 Agreed Fact 8.
JTM said that the incident at her grandmother’s house, following which she made an immediate complaint to her mother, occurred when she was aged four or five years and when she was in reception at Munno Para Primary School.
On the evidence, I find that the disclosure made by JTM to Ms Boberic related to the alleged incident at JTM’s grandmother’s house and no other incident. I am satisfied that there is no other incident that the disclosure by JTM to Ms Boberic could refer to.
As JTM has no memory of making this disclosure to Ms Boberic, there is no reason to doubt that JTM made the disclosure as Ms Boberic has recalled it.
It is accepted that JTM’s disclosure to Ms Boberic is not evidence of an elaboration of JTM’s complaint to CT and therefore it is not admissible pursuant to s 34M of the Evidence Act 1929 for that purpose.
The sole relevance of this evidence is that the account given by JTM to Ms Boberic is inconsistent with the evidence given by JTM about this incident, accepting, as I do on the evidence given by JTM, that there was only one occasion of inappropriate sexual behaviour by the defendant that JTM could recall occurring when she was in reception at the Munno Para Primary School.
I will return to discuss this inconsistency later in these reasons.
Complaint evidence
First complaint
JTM disclosed the first incident to her mother immediately after it is said to have happened.
Pursuant to s 34M(3) of the Evidence Act 1929, this disclosure by JTM to CT amounts to evidence of complaint in relation to that particularised unlawful sexual act.
The evidence is relevant as informing when and how JTM’s allegations that the defendant asked her to touch his penis while they were at JTM’s grandmother’s house first came to light and as evidence of the degree of consistency of JTM’s conduct.[145] It is not evidence of the truth of what JTM disclosed about that alleged incident.[146]
[145] Section 34M(4)(a) Evidence Act 1929. In this way the evidence, if accepted, can buttress JTM’s evidence of this first alleged unlawful sexual act at her grandmother’s house.
[146] Section 34M(4)(b) Evidence Act 1929.
In assessing the degree of consistency, I note that what JTM said she disclosed to her mother, CT, is different in material respects to what CT said was disclosed. In this way CT’s account of the content of what was disclosed by JTM undermines the degree of consistency of JTM’s conduct,[147] as well as affecting JTM’s reliability in relation to the alleged incident at JTM’s grandmother’s house.
[147] R v Weragoda [2021] SASCA 123.
I do not accept the prosecution’s submission that in relation to the differences in the accounts of this complaint, as between JTM and CT, that CT was potentially mistaken in her recollection of the complaint made by JTM or that CT had ‘filled in the blanks’ and assumed that the defendant must have unzipped his pants and further assumed that he had then presented his penis to JTM, in order to make sense of JTM’s complaint. There is simply no evidentiary basis for such a submission. I am not in a position to prefer JTM’s evidence of the complaint over that of CT.
Second complaint
JTM said that when she was aged 11 years, she disclosed to her mother that the defendant had ‘touched her inappropriately’.[148] JTM said that she did not expand upon this when she told her mother[149] or go into detail about what happened.[150]
[148] P1A 110, 113, 116, 188.
[149] P1A 116, 194.
[150] P3A 26.30.
JTM said that when she told her mother that the defendant had been touching her inappropriately, her mother appeared quite concerned.[151] JTM said her mother asked ‘Are you sure that happened? Are you positive? You are not lying to me, are you?’.[152] JTM said she answered by telling her mother that it was true.[153]
[151] P3A 28.3.
[152] P3A 27.35 -28.1.
[153] P3A 28.2.
JTM said that she was unsure what her mother did following this conversation.[154]
[154] P3A 28.5 – 28.6.
I found it very surprising that if JTM had made such a complaint to CT in these terms, that JTM does not remember whether CT asked JTM to explain what she meant or to provide some detail, as one would naturally expect a mother to ask in such circumstances, nor what her mother did following the discloure.
JTM said that she believed she did not see the defendant again after she had this conversation with her mother.[155]
[155] P3A 28.7 - 28.9.
JTM agreed that her mother would warn her children before the start of the school year about being safe and to tell her if anyone had touched them. JTM said that she was asked by her mother a number of times whether anyone had touched her inappropriately and each time had responded ‘no’.[156]
[156] P1A 188.; P2 302.
JTM said that she was scared the defendant would find out and do something to her and that was why she did not tell her mother earlier. JTM also said that she told her mother when she did because ‘I suppose I was just sick and tired of lying … ’.[157]
[157] P2A 302.
JTM’s second disclosure to her mother, when JTM was aged 11 years, is also evidence of complaint in relation to the sexual conduct alleged by JTM that followed the first alleged occasion at her grandmother’s house and can be used for the same purposes as already identified in relation to the first complaint.[158] This second complaint cannot be used as evidence of the truth of what JTM disclosed about being touched inappropriately by the defendant.[159]
[158] See s 34M(4)(a) of the Evidence Act 1929.
[159] Section 34M(4)(b) of the Evidence Act 1929.
In relation to both complaints JTM said she made to her mother, I appreciate that there may be varied reasons why JTM made her complaints to her mother when JTM did. In relation to the second complaint, I acknowledge the reasons JTM has given for not disclosing the alleged abuse to anyone, including her mother, at an earlier time.[160]
[160] Section 34M(4)(c) of the Evidence Act 1929.
In assessing the degree of JTM’s consistency of conduct in relation to the second complaint, it is very significant that CT denies that JTM ever made such a complaint to her.
The prosecution submitted that CT should not be accepted when she said JTM did not make the second complaint to her. The prosecution submitted that CT may have simply forgotten that JTM made the second complaint because the conversation was not important to CT or was not taken seriously by CT. The prosecution also submitted that I should accept JTM’s evidence over CT’s evidence because CT did not want to recall the complaint because CT felt guilty for having allowed the defendant to return to the house after JTM’s first complaint and then he took advantage of that by further abusing JTM.
I do not accept either of the prosecution’s submissions. First, the prosecution is not only seeking to undermine the credit of its own witness,[161] but the submission was not based on any evidence that was given, as none of these suggestions were ever put to CT for her comment. Secondly, given what CT said that JTM had disclosed after returning from JTM’s grandmothers house, and the practice CT immediately implemented in always asking her children whether they had ever been touched inappropriately, there can be no doubt that if JTM had disclosed to CT that she had been touched inappropriately by the defendant, as JTM said she did, that CT would have remembered such a complaint or that she would have acted upon it as she had following the first complaint. Moreover, by the time JTM said she had made the second complaint, CT’s relationship with the defendant was either nearing an end or had already ended in acrimonious circumstances, meaning there would be no reason for CT to have had to protect the defendant by remaining silent or not acting upon JTM’s second complaint.
[161] There is no rule prohibiting a prosecutor from submitting that a court might disbelieve portions of the evidence of a prosecution witness. While it is permissible for a prosecutor to make submissions and advance reasons for a suggested preference of one prosecution witness’s evidence over that of another, that is usually restricted to peripheral matters. It is also the responsibility of the prosecutor not to disregard evidence that is not, upon proper enquiry, unreliable.
I find myself unable to reject CT’s evidence that JTM never made the second complaint, and this has affected my assessment of the degree of JTM’s consistency of conduct.
Defendant elects not to give or call any evidence
The defendant elected not to give or call any evidence. No adverse inference can be drawn against the defendant from this decision.
Consideration
As the prosecution case depends entirely upon JTM’s evidence, it is important that her evidence be scrutinised with care.[162] In order to find the defendant guilty, I must accept that JTM’s evidence of having been sexually abused by the defendant on at least two occasions satisfies the high standard of proof required in a criminal trial. Obviously, JTM’s reliability and credibility are essential in determining whether the prosecution has proved the charge beyond a reasonable doubt.
[162] Murray v R (2002) 211 CLR 193.
Further, in assessing the sufficiency of the evidence, I have taken into consideration the significant forensic disadvantages faced by the defendant in responding to the prosecution case given the delay following JTM’s disclosure of the first alleged incident. These disadvantages include the clear possibility that arises in this case, of the distortion of human recollection and reconstruction; the concomitant loss of means to test JTM’s allegations; that apart from the first occasion, the loss of the opportunity to identify the other occasions the unlawful sexual acts allegedly occurred with any specificity; the loss of the opportunity to make any defence other than a simple denial; and the loss of the opportunity of a medical examination of JTM, potentially contradicting her allegations.[163]
[163] This is particularly evident in relation to the second laundry incident and the bedroom incident, where the defendant is alleged to have rubbed or penetrated JTM’s vagina with his fingers having lubricated the vagina with his bodily fluids.
The offence of Maintaining an Unlawful Sexual Relationship with a Child was legislated by Parliament to address the difficulty that victims experience in recalling details of sexual abuse with sufficient particularity after a significant passage of time or that occurred when they were a young child. As such, each alleged sexual act does not have to be proved beyond a reasonable doubt as if each stood alone as a substantive offence. JTM could not be expected to remember every detail of the alleged unlawful sexual acts, nor was she required to, for the prosecution to make out the charge.

Nevertheless, as the evidence reveals, there are some major inconsistencies in JTM’s evidence of the first incident that is alleged to have taken place at her grandmother’s house.
What JTM described happening at her grandmother’s house is materially different to what CT and Ms Boberic have said they were told by JTM about that incident as set out earlier in these reasons. The prosecution acknowledged the difficulties that this posed but maintained that JTM’s evidence about this alleged incident remained truthful.[164]
[164] T 105. 14.
In considering the inconsistency in the disclosure made by JTM to Ms Boberic, I acknowledge JTM’s young age at the time and that persons, particularly young children, may not describe the same incident the same way each time.
However, the inconsistencies between what JTM said happened on that first occasion and what CT and Mr Boberic have each said JTM told them of this occasion have, on their own, severely undermined JTM’s reliability about this incident and this alone has caused me to have a reasonable doubt over this incident.
In addition, in relation to this particular alleged unlawful sexual act, I take into consideration CT’s evidence of the defendant’s ‘shock and detest’ and denial of the allegations when she confronted him immediately after JTM’s disclosure. While this is not evidence given by the defendant and therefore not tested by cross-examination, it is, nonetheless, an exculpatory statement denying the alleged conduct the subject of the first occasion described by JTM. In this regard, it has some evidentiary value which I am permitted to take account of in my overall assessment of the evidence when determining if the charge has been proved or, more specifically, whether this particular unlawful sexual act has been proved. This is important because the entire prosecution case in relation to there being an unlawful sexual relationship is based on only four occasions.
JTM’s demonstrated unreliability in relation to the alleged incident at her grandmother’s house is a matter that I am also entitled to have regard to when assessing JTM’s reliability generally when considering whether the charge has been proved by the prosecution.
While there may not be the same degree of inconsistency involved in JTM’s evidence in relation to the subsequent allegations, I still consider that there remain concerns involving JTM’s memories in relation to those alleged unlawful sexual acts and whether those memories are reliable enough to satisfy the court that the unlawful sexual acts have been proved beyond a reasonable doubt.
As an example, in the first prescribed interview, JTM said that when the first incident in the laundry occurred, she was aged four or five years. However, a year later, in the second prescribed interview, JTM said that she was aged between seven and nine years of age when the first laundry incident occurred. This is not merely a minor inconsistency. This difference is also reflective of the difficulties that JTM experienced with her memory when recalling the alleged abuse, as JTM herself acknowledged.
In the first prescribed interview, JTM said that ‘lots of her memories were flashbacks and stuff’.[165] Also in the first prescribed interview, JTM said that what she had disclosed during that interview were ‘the ones that I have a faint memories of’.[166]
[165] P1A 52.
[166] P1A 158.
When JTM was asked if there were more occasions than she recalled during the first prescribed interview she responded, ‘most probably’ but she could not say for certain because the ‘human brain would de sensor [sic] things, it’s very interesting’.[167]
[167] P1A 160, 162.
Also, during the first prescribed interview JTM said that she ‘vaguely’ remembered an incident in her bedroom.[168] JTM said ‘Pretty much all I remember is something happening. I don’t remember what it was but then he had to call it off quick because Mum got out of the shower’.[169]
[168] P1A 118.
[169] P1A 120.
The interviewer later returned to this incident in the bedroom:
QDo you remember what was happening at that moment that he had to stop?[170]
A I believe he had his fingers in my vagina again.[171]
AWe were by the door. He was on the floor just kneeling and he had his fingers going in and out of my vagina and then he heard the shower go off and he quickly got up, told me to pull my pants up and to go to bed.[172]
QWas there anything else that was happening when he was had his fingers in your vagina?[173]
AI don’t know if this is just memories or mushing together. Like I believe he might’ve been jerking himself off as he was doing it.[174]
[170] P1A 137.
[171] P1A 138.
[172] P1A 150.
[173] P1A 151.
[174] P1A 152.
This highlights the difficulties with JTM’s recollections and as the second prescribed interview and JTM’s pre-trial special hearing reveal might have been influential in her reconstructing what she believes may have happened in her bedroom.
In the first prescribed interview JTM said in relation to the alleged sexual abuse that ‘the majority from what I remember happened in the laundry’.[175] Even this was prone to uncertainty.
[175] P1A 102.
In the second prescribed interview JTM was asked about the number of occasions in the laundry:[176]
Q      Was there one or two times in the laundry?
A      I …
Q      … or more than?
A      I’m not sure. I believe it was twice, but I can’t say for certain.
[176] P2 39 - 42.
However, under cross-examination at the pre-trial special hearing JTM said that she was now certain that there were two incidents in the laundry.[177] JTM said this was because she had thought about it and explained her reasoning for believing that there were two incidents in the laundry was because ‘the surroundings of the laundry were different I suppose’.[178] JTM denied that it was possible that she was getting the occasions ‘muddled up together’.[179]
[177] P3A 30.13 – 20.
[178] P3A 30.16.
[179] P3A 30.18.
Having carefully watched JTM’s evidence about this, I did not find JTM’s explanation convincing.
I find myself unable to exclude as a reasonable possibility that JTM may have conflated in her memory the nature of the alleged sexual abuse in the laundry into separate incidents, when there was actually only the one incident in the laundry.
During the second prescribed interview JTM clarified with the interviewer that what she was recalling were actual memories.[180] However, what is clear throughout JTM’s prescribed interviews, and the pre-trial special hearing, are the real difficulties that JTM has experienced with her memory in attempting to recall what happened.
[180] PA2 289 - 294.
During the pre-trial special hearing JTM was asked about her statements during the prescribed interview relating to the memories that she was recollecting. JTM said ‘like they are memories but not full memories. They are just bits and pieces that come up whenever I get triggered or like really anxious about that kind of stuff’.[181]
[181] P3A 24 - 35.
JTM said, in response to a question asked about what she meant when she had said that the incidents she was describing in the prescribed interviews were ‘faint memories’, she ‘meant that they were the memories that I have re‑witnessed, I guess, in my own brain and they are not full stories I suppose … I mean like there are only bits and pieces that I remember but my brain has suppressed the rest’.[182]
[182] P3A 25.6 – 11.
This evidence does not assist me in determining whether JTM’s evidence can be reliably acted on. While I accept the natural difficulties a child faces in attempting to accurately recall details of past traumatic events, the fact remains that those difficulties and uncertainties in JTM’s memory must be carefully assessed in determining whether such serious allegations involving unlawful sexual acts have been proved to the requisite high standard in a criminal trial. JTM’s memory difficulties have weighed heavily in my assessment of the reliability of her evidence.
Moreover, in deciding whether the unlawful sexual acts have been proved, there does not exist any support for JTM’s evidence.
I have found that the evidence of discreditable conduct has not assisted in proving the charge. This evidence suffered from the same vagueness as the rest of JTM’ evidence. The evidence does not reveal when the inappropriate comments may have been made by the defendant in relation to the alleged unlawful sexual acts, limited as those comments are to a consideration of the third and fourth occasions.[183] Further, despite JTM saying that she was with other family members at the time the defendant was saying these inappropriate comments to her, JTM did not complain about it to anyone at the time, and this is a matter that I am permitted to take into consideration in assessing JTM’s credibility about this.[184]
[183] See [64].
[184] See R v Jones [2018] SASCFC 80; R v Van Wyk [2018] SASCFC 138.
JTM’s evidence that when she was aged 11 years she disclosed to her mother, CT, that the defendant had been touching her inappropriately, has been totally rejected by CT. I have already addressed this earlier in these reasons. This is a significant matter in assessing not only JTM’s reliability but also her credibility.
Given JTM’s evidence that CT was very concerned about the disclosure, I find it difficult to accept, as JTM has asserted, that CT did nothing about it. One might have expected a mother, whose child has made a disclosure of being sexually abused to have taken that very seriously. This is more so when one considers that after a similar disclosure was made by JTM immediately following the alleged incident at JTM’s grandmother’s house, that CT immediately took that up with the defendant and went on to put in place a practice of regularly asking her children if anything sexually inappropriate had ever happened to them.
Both JTM and CT said that JTM had had never made any disclosures to these regularly asked questions. JTM explained that she never made any disclosures because she was scared that the defendant would ‘do something’ if she did. JTM further explained that she behaved at all times as if nothing had happened because she was ‘a good actor’.[185] Indeed, an example of JTM reconstructing the past can be found in JTM’s evidence about this. JTM said that in truth she did not get along with the defendant and disputed her mother’s description that they ‘were all over each other’.[186] This is contrary to CT’s evidence that JTM and the defendant enjoyed a good relationship.[187]
[185] P1A 169-170.
[186] P1A 170.
[187] See [89] above.
CT disputed that JTM ever made the second complaint to her. I am simply not able to reject CT’s evidence about this for the reasons detailed by me earlier.
In considering whether JTM’s evidence about the unlawful sexual acts should be accepted beyond a reasonable doubt, I have also taken into account the submissions made by the defendant’s counsel, of the inherent risks taken by the defendant that are associated with JTM’s allegations, when considering the plausibility that the defendant would have behaved as JTM has alleged.
In relation to the first alleged occasion at JTM’s grandmothers house, JTM said the defendant told her not to tell anyone. Despite this, JTM made an immediate complaint to her mother upon returning home. While the defendant provided an innocent explanation to CT when CT confronted him and which CT appeared to accept, it would be extremely risky behaviour on the defendant’s part, in those circumstances, for the defendant to attempt to sexually abuse JTM again. The defendant could not have been confident that if he did sexually abuse JTM again that JTM would not make an immediate complaint as she had done before.
I was not persuaded by the prosecution’s submissions that the defendant was ‘testing the waters’ when he asked JTM to touch his penis when they were at JTM’s grandmother’s house and that having convinced CT that JTM had opened the toilet door on him, the defendant then waited for ‘things to settle’ before resuming his sexual abuse of JTM. The prosecution submitted that thereafter the defendant became emboldened to sexually abuse JTM, such that his subsequent sexual behaviour towards JTM demonstrated a brazen attitude on his part to do so.
However, this submission cannot be considered in a vacuum, but rather, in the light of CT’s evidence that her children and the defendant got along extremely well and that JTM denied, when specifically questioned multiple times, that she had ever been touched inappropriately by anyone. Indeed, this failure to complain when the opportunity arose, is a matter that I am entitled to have regard to as the trier of fact.[188]
[188] R v Jones [2018] SASCFC 80; R v Van Wyk [2018] SASCFC 138.
Conclusion
While I do not find that JTM has necessarily deliberately lied about being sexually abused by the defendant, and perhaps there is much truth in what JTM has said about the workings of the human brain and memories, there are, as identified, some important matters that seriously affect the reliability of her evidence, including some important inconsistencies, admitted memory difficulties and general vagueness of accounts, such that when viewed as a whole, proving the particularised unlawful sexual acts beyond a reasonable doubt becomes very difficult in a case which depends entirely upon the evidence of one witness.[189]
[189] Douglass v R (2012) 86 ALJR 1086.
Having assessed and considered all the evidence presented to the court, I am left with a reasonable doubt whether any of the alleged unlawful sexual acts described by JTM have been proved.
Verdict
It is for these reasons that I am not satisfied beyond a reasonable doubt that the charge has been proved.
I find the defendant not guilty.