R v SPARGO - [2025] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SPARGO
Criminal Trial by Judge Alone
[2025] SADC 7
Reasons for the Verdicts of his Honour Auxiliary Judge Barrett
7 February 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with two counts of Unlawful Sexual Intercourse against a 15 year old girl and two counts of Aggravated Indecent Assault against an 11 year old girl. The two girls were unknown to each other. The offences are alleged to have been committed in the latter half of 2012.
The accused exercised his right to silence.
Held: The accused is guilty of all four offences.
Evidence Act 1929 (SA) ss 34M, 34P and 34R, referred to.
MDM v The Queen [2020] SASCFC 80; R v C, CA [2013] SASCFC 137; Kendall v The King [2024] SASCA 54, considered.

R v SPARGO
[2025] SADC 7

The accused is charged with two counts of Unlawful Sexual Intercourse in respect of a then 15 year old girl KB, and two counts of Aggravated Indecent Assault in respect of a then 11 year old girl TS. The alleged offences involving KB are said to have occurred in Port Augusta between 1 July and 31 December 2012. Those involving TS are said to have occurred in Elizabeth North between 19 December 2012 and 1 January 2013. The accused was aged 24 at the time. He is now 36. KB is now 27 and TS is 23.
It appears that while both complainants knew the accused through extended family connections, there is no evidence they knew each other. The accused is KB’s step uncle. KB’s father is the accused’s half-brother. KB called him uncle.
TS is more distantly connected with the accused. The accused’s mother is TS’s grandmother’s sister-in-law. TS called him cousin.
Course of the trial
There was a pre-trial application for counts 1 and 2 involving KB to be severed from counts 3 and 4 involving TS. I heard argument on the application before the witnesses were called and ruled that the charges should not be severed.[1] I will set out my reasons for so ruling after I have summarised the evidence at trial.
[1] Submissions T10-16; Ruling T16.
The prosecution called each complainant, and in respect of each, two witnesses who gave evidence of complaint. In relation to counts 1 and 2 the prosecution called KB and two people the complainant described as aunts, KS and JA.
In relation to counts 3 and 4 the prosecution called TS and her twin brothers NS and AS.
There were agreed facts.
The accused exercised his right to silence. He did not give or call evidence. I draw no inference adverse to him because he exercised that right.
Evidence of KB – Counts 1 and 2
KB said that as a child she had a troubled relationship with her mother. When she was 13 or 14 she left home and went to live in Port Augusta with her father’s sister CB.[2] She lived with her for less than a year. Her father’s mother DB lived nearby. She occasionally slept over at her grandmother’s house. KB said that some time after her 15^th birthday in July 2012, she broke up with her boyfriend. He was her first serious boyfriend.
[2] T54.
Later that year, the complainant was having a sleepover at her grandmother’s home. The accused was also staying there. He was coming and going between Adelaide and Port Augusta.
On an evening before the complainant went to bed she was out the back of her grandmother’s house talking to the accused. She told him about the breakup with her boyfriend. The accused was empathetic. He said he was going to Adelaide. He gave her his phone number. KB said that she appreciated his support.
After KB went to bed around 9 pm she received a text message on her phone from the accused reiterating his support. She replied thanking him.
The complainant said she was sleeping on her own in the bedroom of a girl who was away at the time. This bedroom was next to her grandmother’s bedroom. The accused was to sleep in a bedroom occupied by two boys further away in the house. The complainant provided a mud map of the layout of the rooms, exhibit P1.
The complainant said that a little after receiving the supporting text from the accused she received another one from him in which he asked if she minded if he kissed her. She said she was embarrassed and thought that he must have sent it by mistake.[3] She did not reply.
[3] T44.
She lay in bed with the TV on. She said the accused came into the room. He was wearing silky boxer shorts and carrying his phone. The complainant said that she did not remember whether the phone had the torch light on or whether the light was coming from the phone’s screen. The only light in the room was coming from the TV and the accused’s phone.
The accused got into bed with her. He started kissing her.[4] He slid his hand down her shorts and touched, then penetrated, her vagina with his fingers. That allegation is the subject of count 1. At one stage the complainant said she told the accused to ‘stop’ whereupon he said, ‘she liked it as well’.[5] The complainant said that the accused then pulled her shorts down to her ankles and climbed on top of her. His head was buried in her neck. He put his penis inside her vagina. He did that for roughly 10 minutes.[6] He then pulled her pants right off and rolled her over onto her knees. The complainant said she thought that was the point at which she told him to stop.[7] The accused inserted his penis into her vagina again.
[4]     T45.
[5]     T48.
[6]     T47.
[7]     T48.
The two allegations of penile/vaginal intercourse are the subject of count 2. The complainant said that the thrusting by the accused sped up, but as it did his penis came out of her vagina. He attempted to put it back in but he hurt himself. He swore. He got up, pulled up his pants and walked out. He did not ejaculate.[8]
[8] T49.
The complainant said that she did not tell anyone about what happened until she was 16. After the incident she felt ‘blocked’ and ‘very alone’.[9] Sometime after the incident, she went to boarding school in Western Australia for two semesters. She fixes her age at 16 whilst she was in Western Australia because she obtained her driver’s permit there. She returned to South Australia before Christmas. She was couch surfing for a while, but by the time she complained about the offending she was living in emergency accommodation.[10] For some of the time she was couch surfing she also lived with KS, one of the people to whom she complained.
[9] T52-53.
[10] T51-52.
The complainant said that she complained to two family friends of her mother, KS and JA. The three of them were sitting out the back of KS’s house in Port Augusta having some beers. She told them that the accused had come into her bed and sexually assaulted her.[11]
[11] T53.
In cross examination, the complainant agreed that she had had an unfortunate childhood. She had taken out a restraining order against her mother who had assaulted her. She was drinking alcohol from ages 14 to 15. She agreed that although she had been living with her aunt CB before she went to Western Australia, CB was not willing to have her back on her return. CB’s unwillingness was related to the complainant’s drinking.
The complainant agreed that around the time of the alleged offending, other people would frequently stay at her grandmother’s house. They were mostly foster children. She named four such people who were at her grandmother’s house the morning after the incident; that is, four people other than her grandmother and the accused.
The complainant denied being mistaken about who it was that offended against her.[12] She reiterated that she made her first complaint to the two family friends together at KS’s house. She said she was not sure exactly where she was living at the time. She had been couch surfing, staying with KS and staying at the emergency accommodation. She said KS and JA were great social supports for her. She said she confided in them because she could not carry the secret anymore.[13]
[12] T63.
[13] T66.
The complainant denied ever having told anyone she had been sexually assaulted by DB rather than the accused. She said she had had a great relationship with DB.
Evidence of KS
KS was one of the people to whom the complainant reported the matter. KS was a school friend of the complainant’s mother.
KS thought that when the complainant returned from school in Western Australia, she lived with her, her grandmother and in emergency accommodation.
KS said that the complainant told her about being sexually assaulted by the accused. When she told her, there were just the two of them sitting in her backyard. The complainant told her that she had been raped by the accused. KS had difficulty remembering word-for-word what the complainant told her, but she remembers being told that there was vaginal sexual intercourse and the complainant was bleeding afterwards. The incident had happened at the complainant’s grandmother’s house. The complainant was crying during this conversation. The complainant told her that she was the first person that she told.
In cross examination, KS confirmed that the complainant had a rough upbringing and had started drinking alcohol from about the age of 14.
KS said that JA was not present when the complainant made her report. It was just the two of them. She thought the conversation occurred twelve years ago. That might suggest 2012.
KS denied that the complainant ever told her that she had been molested by DB as opposed to the accused.[14]
[14] T76.
Evidence of JA
JA was the other person to whom the complainant reported the matter. JA was also a school friend of her mother.
JA said that the complainant told her about being molested by her uncle when she was about 13 or 14. The disclosure was made at her house. The complainant had visited her house with KS. The three of them were out the back of her house. It might have occurred in 2020 or 2021. The complainant said that the accused had molested her. He had pushed her down and pulled her pants down.[15]
[15] T97-98.
In cross examination JA said that it was almost a daily occurrence that the three of them met at her place. She denied drinking on this occasion. She herself did not drink at all.
JA denied that the complainant ever told her that she had been molested by DB. She said that had been her confusion, not that of the complainant. Although it was never clarified, I take JA to mean that she had given a statement saying that DB was the alleged perpetrator.[16]
[16] T100.
Evidence of TS – Counts 3 and 4
The complainant said she had originally had three brothers, the eldest of whom, MS, had died in 2009. The accused had been a friend of MS and she had seen the accused at family events until MS died. She was aged 5-8 at the time. After that she saw less of him. The accused is distantly related to her. His mother is her grandmother’s sister-in-law. TS knew the accused’s mother.
In December 2012 the complainant was just short of turning twelve. Her twelfth birthday was in February 2013. She was living in Elizabeth North. She had been living there with her family for some years. She said that the accused sexually assaulted her at her house between Christmas and New Year. She believes it was before New Year because some of the family were going to Port Augusta for New Year’s.
Living in the house at the time were her parents and her twin brothers NS and AS. NS’s girlfriend was also living there. The accused was staying. He occupied the complainant’s bedroom. She was sleeping on a mattress in the lounge. The complainant said that it was a hot summer. She was in the blow-up pool during the day. Her brothers were having some drinks.
The complainant went to bed at about 9.30 pm. She woke up between 1 am and 3 am to find the accused kissing her face and shoulders. She was wearing a pink nightie that her grandmother had given her for Christmas, with a matching pair of pink underpants.
The accused had his hands on the outside of her underwear in her pubic area. He kept whispering ‘give me a kiss’ or ‘I just want a kiss’. She told him ‘no’ but when he kept insisting she said ‘okay, when I get back from the toilet’. The accused was ‘trying to gravitate my hand towards his penis’. She was unsure whether she ended up touching his penis, but said it was possible.[17]
[17] T26.
The complainant said that she left the bedroom saying she wanted to go quickly to the toilet. She turned on the light in the toilet to make it look as if she was inside, but instead, she went to the bedroom door of her brother NS. She said she was closer to him at that time than her other brother. She said NS’s door was locked so she went to AS’s room. She went in and locked the door behind her. She woke AS. She told him that the accused had tried to kiss her, had put his hands near her vagina and wanted her to touch his penis. She used the word ‘willy’.[18] AS told her to get into his bed on the wall side. She did that. In the morning the accused had gone.[19]
[18] T27.
[19] T28.
In cross examination, the complainant said that it had been a hot day. She agreed that she had originally thought the incident occurred in April the following year (2013) but, remembering the heat and the Christmas tree, she realised it was between Christmas and New Year.
TS reiterated that she was wearing a pink nightie at the time. It had been given to her as a Christmas present by her grandmother. She agreed that she assumed the time was between 1 am and 3 am when the accused came into her room because no one is normally awake then.[20] TS disagreed that her brother AS acted as though he did not believe her. She denied having a conversation with NS. She said his door was locked and there was no answer when she knocked. She disagreed that she had only told AS that the accused tried to kiss her. She said that she also told him that the accused had moved her hand to touch his ‘willy’ but she could not remember whether she also told him that the accused touched her vagina. Counsel presented TS with a chart from the Bureau of Meteorology (D2) which showed that the maximum temperature at the Edinburgh Airforce Base near her home was 42.6 degrees on 23 December 2012. However, the temperature from 24 and 30 December was in the mid to high twenties. It reached 31.9 degrees on New Year’s Eve.
[20] T30.
Evidence of NS
NS is one of TS’s twin brothers. They are eight years older than she is. NS has known the accused all his life.
NS said that there was an occasion in 2012 when the accused had been living with his family for a few weeks before going back to Port Augusta. He was sleeping in TS’s room. She was sleeping in the lounge.
During the night TS knocked on his door and told him that the accused had tried to kiss her. She was crying. He told her she could not stay with him because his girlfriend was there. She went to their brother’s room. In the morning he told TS that she would have to tell their parents.
In cross examination, NS said that he could not remember whether his door was locked or not, but he did remember speaking to TS briefly. He did not think much of what she told him. NS agreed that he got angry with her because she had woken him up.
NS agreed that he had told the police that he told TS she could stay in his bedroom, but when he reflected on it he realised that cannot have happened because his girlfriend was there. He said that he corrected what he had originally said to a detective a couple of weeks before the trial.
When it was put to NS that the accused was not there at the time he said ‘incorrect, he was definitely there’.[21]
[21] T84.
Evidence of AS
AS is TS’s other twin brother. He said the accused was staying with his family between Christmas and New Year. Some hours after he had gone to bed TS came into his room. He told her to get out, but she said she did not want to, she was uncomfortable. She said the accused had attempted to kiss her on the couch. AS told her to get into the end of his bed and they would sort it out in the morning. AS said that both he and the accused had been drinking outside the house before they went to bed. He said he would have gone to bed between 11 pm and 12 am. He was asleep when TS came in. She startled him. That is why he yelled at her. In the morning the accused was not in the house.
In cross examination, AS said that he thought his parents were away. He thought they might have been in Port Augusta looking for a house because the family moved back to Port Augusta in February. AS said that when he gave his statement to the police he thought his brother was not there either. He thought he was working in Mount Gambier.
When it was put to AS that the accused was not there at all, AS said ‘he was definitely there, yes’.[22]
[22] T90.
AS said he thought his sister’s concern could be sorted out in the morning. He was ‘quite inebriated’ and he did not want to be accusing somebody of anything when he was not in the room where it took place.[23]
Addresses of Counsel
[23] T90.
Dr Salu for the prosecution
Dr Salu submitted that both complainants, like most people, more particularly children, are likely to have a better recollection of the central points of an incident rather than peripheral ones.
Dr Salu began his address beginning with counts 3 and 4 because TS gave her evidence first. I will deal first with his submissions relating to counts 1 and 2.
In relation to KB’s evidence Dr Salu submitted that there were some compelling details. After KB went to bed, the accused sent first a supportive text and then one she concluded must have been a ‘wrong’ text, the text asking whether he could kiss her. She remembered the accused saying, as he was having the first penile/vaginal sex with her, that ‘she liked it as well’. KB said that when he was having the second sexual intercourse with her, his penis came out of her vagina, and when he tried to put it back in again he hurt himself. He then left.
Dr Salu submitted that while the complaint witnesses’ evidence diverges at the edge, the essentials of an initial complaint are there. While they differ about where the conversation took place, and who was present, they both say that KB told them that her uncle, the accused, had sexual intercourse with her when she was younger, 15 in the case of KS and 13 to 14 in the case of JA.
In the case of TS and counts 3 and 4, TS and her brothers say that the accused was staying with them and occupying her bedroom. She was in the lounge.
After everyone had gone to bed, TS said that the accused came into the lounge and was kissing her. Dr Salu submitted that there were compelling aspects to her evidence. The accused was moving her hand towards his penis, but she frankly said that she was not sure whether her hand touched his penis.
Another compelling aspect of her evidence is that when the accused insisted upon kissing her, she said would it be okay if she first went to the toilet. She went to the toilet and turned on the light, but instead of going in, she went first to NS’s room and then to AS’s, complaining that the accused was trying to kiss her. It is true that she said she went on to tell AS that the accused tried to get her hand to touch his penis, but AS has no such recollection. On the other hand, she says that she never got to speak to NS, whereas, NS said she did complain that the accused was trying to kiss her. Both TS and AS say that she spent the rest of the night in his bedroom. In the morning, the accused was nowhere to be found.
Dr Salu submitted that while there are things that neither brother can remember, and there are some inconsistencies between them, both are adamant that the accused was there, and both say TS was upset about the accused trying to kiss her. This occurred in the middle of the night.

Dr Salu submitted I should find that the evidence of the two complainants is cross admissible. However, even if I did not so find, the evidence of each is independently compelling.
In support of their evidence being cross admissible, Dr Salu pointed to the similarities. There is, first, no suggestion of contamination or collusion between the complainants. There is no evidence that they knew each other.
In the case of each, the accused was staying temporarily in the house of a relative. He offends against each in temporary beds, which they are occupying alone. The rest of the household might be expected to be asleep. While it is true that the ages of the complainants are different, the more intrusive offending is against the older girl. The younger contrived to get away.
Dr Salu submitted that the evidence of each is cross admissible for both propensity and likelihood reasoning. In respect of the former, the accused has demonstrated a sexual interest in underage family members and has acted upon that interest.
In respect of the latter, it is improbable that two complainants who did not know each other would falsely give similar accounts of the accused’s behaviour.
Mr Walker for the accused
Mr Walker divided his address into the following topics:
1.   The evidence of KB.
2.   The evidence of TS.
3.   Cross admissibility.
4.   The accused’s forensic disadvantage.
In respect of KB, Mr Walker submitted that she was an unreliable witness. The passage of time renders her claims of recollection unreliable. She had been drinking from when she was very young. Her being barred from returning to live with CB after she returned from Western Australia indicates that her behaviour was erratic. Alcohol has adversely affected her memory. At times she gave evidence by saying something ‘would have’ happened, indicating reconstruction. Instead of admitting uncertainty, she asserted that particular facts ‘did’ occur.
She is unlikely to be able to remember things such as what she was wearing when she went to bed, but she claims to be able to remember.
Mr Walker submitted that aspects of KB’s evidence are unlikely. It is unlikely that the accused was as empathetic as she says about the breakup with her boyfriend. She and the accused were not that close.
The offending is improbably brazen. Other people were in the modestly built house at the time. Someone would be likely to have heard the accused swearing in pain if he did. No one from the house has given evidence. There was no evidence of discussion the following morning about any commotion being heard overnight.
There is doubt about whether the accused was even in Port Augusta at the time, let alone staying at that address. There are no documents or the like confirming his presence. KB might be mistaken about the perpetrator. She had limited opportunity to get her bearings if she had been asleep, or even partly so. She was unlikely to have been able to identify the accused’s clothing as she claims to.
Mr Walker submitted that the complaint evidence is unconvincing. It may be that there were two quite separate conversations, but each time KB claims that she was making her disclosure for the first time.
KB and KS place the complaint around 2012 with just the two of them present at KS’s place. JA says it was in about 2020-21 with all three of them present at her place.
Mr Walker submitted that the difference between the two accounts might mean that there were in fact two quite separate conversations, but KB is falsely claiming that each is the first ever made.
The account itself may be false by reason of KB feeling that she had to justify her behaviour at the time she was barred from returning to live with CB upon her return from Western Australia. In that sense, there may be a motive to lie.
Mr Walker conceded that the accounts of complaint were consistent, but only in the broadest sense. KS said that KB reported penile/vaginal sexual intercourse. JA said KB reported nothing more than her head being pushed down and her pants being taken off occurred.
Turning to TS and counts 3 and 4, Mr Walker submitted that her evidence was unreliable. Despite the evidence of her brothers, there was an absence of evidence that the accused was even at the house. The brothers have spoken together since giving their statements and their accounts have converged to give the appearance of consistency.
TS improbably said that the incident occurred between 1 am and 3 am. It was really only an assumption, something she conceded only when pressed.
Despite being asked by the prosecutor to use words that she had used at the time, she used the words ‘gravitate’ and ‘penis’ when she conceded she would have used the words ‘moved’ and ‘willy’.
Mr Walker submitted that it would be unlikely that TS would have forgotten, or been uncertain about, whether she had touched the accused’s penis. She has misremembered how hot it was after Christmas 2012.
The complaint evidence does not demonstrate consistency. Neither brother says that TS complained about the charged offending. Each only refers to her complaining that the accused kissed her. TS says that she told AS more. If she had, AS would be unlikely to have been somewhat dismissive of what she was saying. TS says that she did not ever speak to NS.
Turning to cross admissibility, Mr Walker submitted that there are too many dissimilarities. The essential acts are different. KB says that there was sexual intercourse, digital and penile, that went on for ten minutes. The accused ignored her protests. TS says that there was just a touching of the pubic area and some movement of her hand towards the accused’s penis. The accused allowed her to leave to go to the toilet.
Mr Walker submitted that the Court of Appeal deprecates propensity reasoning where there are few complainants.[24] Further, there is an unduly fine distinction between the intermediate finding of propensity and the ultimate proof of the charge.
[24] MDM v The Queen [2020] SASCFC 80.
Finally, Mr Walker submitted that I should bear in mind the forensic disadvantage suffered by his client. Given the lapse of time of some twelve years, the accused has lost the opportunity to test details of the accounts of the complainant. Given the imprecision of the timing of the allegations, the accused is unable to marshal evidence of his whereabouts.
Cross admissibility
I find that the evidence of the two complainants is cross admissible. I explain why.
Evidence of the two complainants may only be cross admissible if it meets the requirements of s 34P of the Evidence Act. I must also give myself a warning provided for in s 34R of the EvidenceAct. For the purposes of this analysis, the evidence relating to each complainant is to be treated as discreditable conduct in respect of the other.
Discreditable conduct may not be used to suggest that the accused is more likely to have committed the subject offences because he has engaged in discreditable conduct, that is, the other alleged offending. This is described as ‘bad person’ reasoning and is impermissible (s 34P(1)).[25] The discreditable conduct may only be used for a permissible purpose where it outweighs any prejudicial effect it may have on the accused (s 34P(2)(a)).
[25] R v C, CA [2013] SASCFC 137 at [76].
Permissible and impermissible uses must be able to be kept sufficiently separate and distinct (s.34P(3)).
In my view, the similarities between the two complainants are such that it is improbable that each has independently lied or been mistaken about the accused’s offending against them. There is no evidence they knew each other, although both knew the accused through family connections. I identify that reasoning as permissible pursuant to s.34P(2)(a).[26] I eschew ‘bad person’ reasoning.
[26] R v C, CA supra at [77].
Each alleges that the accused sexually offended against them in a relatively short period, KB in the second half of 2012 and TS around Christmas time that year.
There is no evidence that the complainants knew each other.
The allegation relating to each complainant is that the accused was temporarily staying where they were. Each says the offending occurred in their bed at night when other occupants of the house were asleep. While the allegations by KB are of more serious offending, she is the older of the two. She was 15 whereas TS was 11. TS contrived to get away. Each was known to the accused through family connections. Each was a child at the time.
I do not think that the evidence is sufficiently similar to demonstrate a tendency on the part of the accused to offend in the way that is alleged. I do not utilise propensity reasoning. I do however consider that likelihood or probability reasoning is appropriate. In my view it is unlikely or improbable that the two complainants have independently lied or have been mistaken about the accused offending against them sexually.
Consideration
Despite my finding about cross admissibility, I first considered the evidence of each complainant separately.
I find that KB was an impressive witness in respect of the central issue. She gave her evidence in a straightforward manner with no suggestion of exaggeration or reconstruction. There were in my view telling nuances about her account. She said that after she went to bed the accused sent her a text reaffirming his empathy about the breakdown of her relationship with her boyfriend. She replied thanking him. That text was followed by the one about kissing her, a text which she thought must have been sent by mistake. The accused then came into her room and started kissing her.
The complainant said that when she told the accused to ‘stop’ he said, ‘she liked it as well’.
Finally, there is the account of the accused hurting himself when he tried to put his penis back into her vagina.
These three topics seem unlikely if deliberately false or mistaken.
I do not find the various accounts of the initial complaints easy to reconcile. KB says that she first told KS and JA after she came back from Western Australia. She was about 16 at the time. That would place the complaint in about 2013. The complaint was made at KS’s house.
KS agrees that the complaint was made at her house around when the complainant came back from Western Australia, but she says only the two of them were present.
JA says that the complaint was made much later, in 2020 or 2021. It was made at her house when all three women were present. JA first told the police that the complainant said she had been abused by someone other than the accused. JA said that she was mistaken about that.
I think that Mr Walker may be correct when he suggested that there may have been two quite separate complaints, some years apart. If that is so then the later one is inadmissible as complaint evidence. I find that JA was mistaken when she told the police that the complainant made allegations about another relative, not the accused. JA says she was mistaken, but a more compelling reason for finding that she had made a mistake is that the complainant was quite emphatic that she had always had a good relationship with the person JA first nominated. That mistake may make JA’s account of the complaint less reliable than those of the complainant and KS. Their accounts place the complaint at the same location and about the same time, but they differ about who was present.
I find that the congruity of the evidence of KB and KS is sufficiently compelling for me to find that KB told KS when she came back from Western Australia that the accused had sexually offended against her. That is notwithstanding that there remains some uncertainty about whether JA was also present. It think it is likely that JA’s account is of a much later conversation, one which does not comply with s 34M of the Evidence Act. It would not have been an initial complaint. JA acknowledges that she initially made a mistake about the identity of the perpetrator.
I give myself the warnings applicable to complaint evidence.
The complaint evidence is admissible to show how the allegation first came to light, albeit that no report was made to the police at the time (s34M(4)(a)(i)).
The evidence demonstrates a degree of consistency on KB’s part. The complaint occurred within what I find was 12 months of the alleged incident and is reasonably consistent with KB’s evidence in court about the allegation (s34M(4)(c)(ii)).
The complaint evidence is not admitted for the truth of what is alleged (s34M(4)(b)).
It is understandable that KB might choose to complain to someone she trusted such as KS (s34M(4)(c)).[27]
[27] Kendall v The King [2024] SASCA 54.
I do not find that the complainant’s troubled background has led her to be untruthful or unreliable. I do not find that she is mistaken about who came into her bedroom. The earlier conversations about her breakup with her boyfriend, the two text messages and the accused’s appearance in her bedroom are all closely connected.
I reject the suggestion that the complainant had a motive to lie. In my view, she had nothing to gain by a false account.
I appreciate that the accused is at something of a forensic disadvantage with the late reporting of the matter, but that does not detract from my impression of the complainant as an honest and reliable witness about the central allegations.
I accept that the allegation is of brazen conduct. Other people were in the house at the time, but they might be expected to have been asleep. The complainant was in a room on her own.
I turn to consider counts 3 and 4 which relate to TS.
I also found TS to be an impressive witness. She too gave her evidence in a straightforward manner with no suggestion of exaggeration or reconstruction. There is in my view no plausible reason for thinking she is mistaken about what she says happened, or who was the perpetrator. If her account is wrong, it effectively has to be a lie.
TS’s account is relatively modest in the sense that she says the accused touched her in the pubic area over her clothing (count 3) and moved her hand towards his penis (count 4). She is not sure whether her hand actually made contact with his penis.
TS is criticised for her uncertainty on the ground that such a touching would be memorable. I do not accept that criticism. In what is likely to have been a quick, furtive movement, it is not remarkable that she is not sure about whether contact was made. If she were lying about the matter, she would be unlikely to acknowledge that uncertainty.
There is in my view a compelling detail in her account. When the accused persisted in what he was doing, the complainant said, ‘OK but when I get back from the toilet’. She got away and went to complain to her brothers about him. In my view the complainant’s credit is enhanced by what I find is consistency on her part in making the complaint.
It is true that the evidence of the complainant’s brothers creates some uncertainty about what was said to whom.
The complainant says she went first to the door of NS’s bedroom. She was closest to him at the time, by which I take her to mean closest in emotional terms. She says his door was locked and she could not rouse him. NS says that she did rouse him and told him that the accused had tried to kiss her. She was crying. He directed her to AS’s bedroom because his girlfriend was in the room.
The complainant says that she went from NS’s door to AS’s room. It is common ground that the complainant did speak to AS. She was crying. She spent the rest of the night in his room. The complainant says she told AS that the accused had tried to kiss her, he put his hand near her vagina, and he wanted her to touch his penis. AS denies that the complainant told him about the two charged acts. He says she only mentioned the kissing.
Both brothers are certain that the accused was staying at their house that night and both say he was not there in the morning.
On the question of complaint, I make several findings. I find that NS is mistaken when he says that the complainant spoke to him. I think it unlikely that the complainant would be mistaken when she says she did not speak to him. He was the brother closer to her and she went to his room first, but she could not rouse him. NS agrees he mistakenly told police that when TS spoke to him, he told her that she could spend the night in his room. He said that he later realised that cannot have been the case because his girlfriend was there.
I find that the complainant complained to AS. She was crying when she did so. Despite him not remembering her saying anything beyond the kissing, I find that she did tell him about the indecent touching. If, as he says, he had been inebriated, he might have forgotten the detail of what she said.
With these findings of fact, I consider the probative weight of the evidence bearing in mind the provisions of s.34M of the Evidence Act.
I find that the complaint demonstrates how the allegations first came to light, albeit that no further action was taken at the time (s.34M(4)(i)).
I find that there was consistency of conduct and consistency of account on the complainant’s part (s.34M(4)(ii)). She told AS about the indecent touching sufficient to get him to have her spend the rest of the night in his room.
She complained immediately. She was distressed. She demonstrated consistency of conduct.
The complaint is not admitted as the truth of what is alleged (s.34M(4)(b)).
The reason for the complainant reporting the matter to AS is understandable. She was unable to complain to NS so she went to AS (s.34M(4)(c)).[28]
[28] Kendall v The King supra.
I do not find that the complainant’s credit is damaged by the matters raised in cross-examination. The temperature on the day might easily be forgotten. Even if she is wrong about what she was wearing at the time, I do not regard that as a material criticism. I think she is likely to be right, remembering the nightie as being a Christmas present from her grandmother and it being her first nightie.
Despite it being an assumption by the complainant that the offending occurred between 1 am and 3 am I do not think that damages her credit. I do not find damaging her use of adult words for her account of the offending rather than the ones she used as a child.
There was some uncertainty between the witnesses about where TS’s parents were at the time and even some uncertainty about exactly when the incident occurred. However, I do not find that these uncertainties detract from the complainant’s credit. TS’s brothers were adamant that the accused was staying at their place and was gone the next morning.
Findings
I am satisfied of the truthfulness and reliability of both complainants’ accounts of the accused sexually offending against them. I would be so satisfied without reliance upon the cross admissibility of their evidence, but I am fortified in my findings by that cross admissibility.
I am satisfied beyond reasonable doubt of the accused’s guilt of counts 1, 2, 3 and 4.
Verdicts
Count 1 – Unlawful Sexual Intercourse – guilty.
Count 2 – Unlawful Sexual Intercourse – guilty.
Count 3 – Aggravated Indecent Assault – guilty.
Count 4 – Aggravated Indecent Assault – guilty.