R v T, Am - [2014] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, AM
Criminal Trial by Judge Alone
[2014] SADC 31
Reasons for the Verdict of His Honour Judge Beazley
26 February 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with four counts of Indecent Assault, three counts of Unlawful Sexual Intercourse with a person under the age of 17 years; and one count of procuring an act of gross indecency - offences allegedly occurred when complainant was aged between 12 and 16 years - complainant aged 28 years as at the date of trial - prosecution case based entirely upon the acceptance, beyond reasonable doubt, of the truth and reliability of the evidence of the complainant, and the rejection, beyond reasonable doubt of the sworn evidence of the accused - accused pleaded guilty upon arraignment to one count of Unlawful Sexual Intercourse, but not guilty to the seven other counts on the Information - whether the accused was forensically disadvantaged by the delay of the complainant in bringing the alleged events to the attention of the police - relevance of prior inconsistent statements of complainant - whether prosecution case proved beyond reasonable doubt.
Verdicts: accused guilty of counts 1 to 6 inclusive, but not guilty to count 7. The accused had pleaded guilty to count 8 on arraignment.
Criminal Law Consolidation Act 1935, (SA) ss 49(3), 56 and 58; Evidence Act, 1929, (SA) ss 34, 34CB, 34L, 34M and 34P; Juries Act, 1927 (SA) s 7, referred to.
B C M v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Keyte (2000) 78 SASR 68; R v Abrahamson (1994) 63 SASR 139; Hargraves v The Queen [2011] HCA 44 at [43-46]; R v Calides (1983) 34 SASR 355; R v C CA [2013] SASCFC 137; R v C G [2013] SASCFC 83; R v C CN [2013] SASCFC 44; R v Lapins [2007] SASC 281; B v The Queen (1992) 175 CLR 599; R v Maiolo (No2) [2013] SASCFC 36; R v A G P [2012] SASCFC 81; R v Brady (2014) SASCFC 7; Wright v O'Sullivan (1948) SASR 307; Gigante v Hickson (2001) VSCA 4; R v Smith [2013] SASCFC 128; R v E DJ (2012) 112 SASR 225, discussed.

R v T, AM
[2014] SADC 31
Introduction

The accused ‘A M T’ is charged on Information, dated 6 May 2013, with four counts of Indecent Assault, contrary to s 56 of the Criminal Law Consolidation Act, 1935 (‘the Act’) three counts of Unlawful Sexual Intercourse, contrary to s 49(3) of the Act and one count of procuring an act of Gross Indecency contrary to s 58(1)(b) of the Act.
The prosecution asserts that the accused committed each of the eight alleged offences against the complainant ‘K’ between 1997 and 2002, during which period, she was aged between 12 and 16 years, and the accused was aged between 35 and 40 years. The complainant was aged 28 years as at the date of the trial. The prosecution asserts that the accused had been a long time friend of the complainant’s father, and had from time to time acted as a babysitter for ‘K’.
Upon arraignment, the accused pleaded guilty to one offence, being that of unlawful sexual intercourse in count 8, but not guilty to each of the first seven counts on the Information. The trial proceeded on those first seven counts. It is convenient to set out the particulars of all eight counts as pleaded in the Information, and also as developed in the prosecution opening, as follows:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
‘A M T’ between the 31^st day of December 1997 and the 28^th day of October 1998 at Salisbury East, indecently assaulted ‘K’.
This had allegedly occurred on a Monday night in late 1997, when ‘K’ was aged 12 years, and the accused was babysitting her. It is alleged that the accused touched the skin of her breast and tickled her nipple, and then massaged both breasts and tickled her nipples.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
‘A M T’ between the 31^st day of December 1997 and the 28^th day of October 1998 at Salisbury East, indecently assaulted ‘K’.
A few weeks after the event in Count 1, while again babysitting ‘K’ it is alleged that the accused grabbed her, pushed her against the wall, lifted up her shirt and licked one of her nipples.
Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 17 Years. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
‘A M T’ between the 31^st day of December 1997 and the 28^th day of October 1998 at Salisbury East, had sexual intercourse with ‘K’, a person of the age of 12 years, by performing an act of cunnilingus upon her.
In late 1997 or early 1998, some weeks after Count 2, while ‘K’ was still aged 12 years, the accused is alleged to have pulled down her pants and performed oral sex upon her, on the floor of her father’s lounge room.
Fourth Count
Statement of Offence
Procuring an Act of Gross Indecency. (Section 58(1)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
‘A M T’ between the 31^st day of December 1997 and the 31^st day of December 1998 at Salisbury East, procured the commission of an act of gross indecency by ‘K’, a person under the age of 16 years.
On a weekend when ‘K’ was aged about 13 years, it is alleged that the accused pulled his penis from his pants and asked her to touch it, which she did for a number of seconds.
Fifth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
‘A M T’ between the 28^th day of October 1998 and the 31^st day of December 1999 at Salisbury East, indecently assaulted ‘K’.
It is alleged that in the middle of the night the accused entered ‘K’s bedroom, and touched her while attempting to take ‘K’s pants off.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 17 Years. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
‘A M T’ between the 31^st day of December 1997 and the 28^th day of October 1999 at Salisbury East, had sexual intercourse with ‘K’, a person of the age of 12 or 13 years, by performing an act of cunnilingus upon her.
It is alleged that while ‘K’ and her brother were playing on a bed in the spare room, the accused placed his head under the covers, pulled her shorts to the side and performed oral sex upon her.
Seventh Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
‘A M T’ between the 1^st day of January 1998 and the 28^th day of October 1999 at West Beach or another place, indecently assaulted ‘K’.
It is alleged that while camping at West Beach when ‘K’ was aged 13 years, the accused entered a tent shared by ‘K’ and her brother, and touched her while trying to pull down her pants.
Eighth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 17 Years. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
‘A M T’ between the 28^th day of October 2001 and the 27^th day of October 2002 at Evanston Gardens, had sexual intercourse with ‘K’, a person of the age of 16 years, by inserting his penis into her vagina.
It is alleged that at a time when ‘K’ was residing with her mother and aged 16 years, the accused performed penile/vaginal sexual intercourse with her at his house.
·The effect of the plea of guilty to count 8
A conviction for an offence such as count 8 against the accused is at law, evidence capable of corroborating the prosecution case on the other counts.[1] However in the circumstances of this case in which some of the other seven counts are alleged to have occurred at least three years earlier, I will consider each of those seven counts separately on the basis that the prosecution case is reliant entirely upon the evidence of the complainant. At that time I will consider whether it is necessary for any special direction to be given, having regard to the evidence as a whole including any previous inconsistent statements by the complainant.[2]
[1] See B v The Queen (1992) 175 CLR 599 at [6]
[2] R v Warsap (2010) 106 SASR 264; R v E, D J [2010] SASCFC 6; and Evidence Act, 1929 (SA) s 34L(5)
The accused’s plea of guilty constitutes an admission by him of the elements of the charge of unlawful sexual intercourse with the complainant. Of itself, it is not an admission of each of the particulars as pleaded. In particular there was no admission that the 8^th count had occurred on the occasion deposed to by ‘K’ as being in the month of April 2002. The accused admitted in his oral evidence that he did insert his penis into the complainant’s vagina, but that it had occurred in or about the month of July 2002.
Some evidence was led by the prosecution as to the alleged ongoing relationship between the accused and the complainant after the offending conduct in count 8.[3] In light of the plea of guilty to count 8, much of that evidence is of little significance to the issues in the subject trial, save for the assessment of the credibility of the witnesses herein.
[3] See Exhibits P3 and P4.
I will detail the evidence given by the complainant in respect of count 8, as on the accused’s case, it is relevant to the assessment of the complainant’s credibility and reliability. It may also be relevant to the assessment of the consistency or inconsistency of the conduct of the complainant in making an initial complaint pursuant to section 34M(4)(a) of the Evidence Act, 1929 (SA).
The accused has denied being sexually attracted to the complainant, even at the time of the admitted sexual offence in count 8. Indeed he explained that that offending conduct was not the consequence of a sexual attraction but simply ‘to comply with her will’.[4]
[4] T. p 387 - 388 (xxn).
In so far as I was satisfied, beyond reasonable doubt that the accused had in fact been sexually attracted to the complainant at the time of that offending, it must not be used to reason that the accused had such a sexual interest in her at a much earlier time, nor that the accused is of bad character, and is more likely, for that reason, to have committed the earlier charged offences.
It would be an error of law to conclude, merely because the accused has pleaded guilty to one offence, that he must be guilty of another or any of the other counts on the Information.[5]
[5] Burns v R (1975) 132 CLR 258; Evidence Act 1929 (SA) s 34; R v Lapins [2007] SASC 281 and R v Maiolo (No2) [2013] SASCFC 36 at [75 - 100].
Procedural Matters
·Trial by Judge Alone
The accused elected to be tried by a judge without a jury pursuant to s 7 of the Juries Act, 1927 (SA). The application was granted and the trial commenced before me on 12 November 2013.
Ms S Giles appeared as counsel for the Director of Public Prosecutions (‘the DPP’), and Mr B Tremaine appeared as counsel for the accused.
·Necessity for Reasons
In a series of recent decisions the High Court of Australia has stressed that sufficient reasons must be given by Trial Judges, and, indeed, Intermediate Courts, which properly explain the verdict.[6] Those reasons must include the principles of law applied by the Judge and the facts as found by the Judge.
·Rule 15 Applications
·Notice of Intention to Adduce Evidence of Discreditable Conduct
[6] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 36 at [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438.
The DPP filed a Notice pursuant to s 34P(4) of the Evidence Act 1929 (SA), seeking to adduce evidence of alleged ‘discreditable conduct’ by the accused, namely evidence of alleged incidents of sexual conduct between the accused and complainant whether or not the subject of a specific count on the Information.
The alleged discreditable conduct, the subject of that evidence, included at least 10 other occasions of alleged penile/vaginal sexual intercourse; three other occasions of alleged cunnilingus; three other occasions of alleged touching by the accused of her breasts; three other occasions of alleged sucking on her nipples; and two other occasions of entering her bedroom at night.
The prosecution sought to lead that evidence to demonstrate that the accused had an ongoing sexual interest in the complainant; to place the charged offences in their proper context; to explain why the accused might be confident that the complainant would not tell her parents about the alleged acts at the time; and why she delayed bringing the alleged offending to the attention of the police.
There was no objection to that evidence by counsel for the accused. In my opinion it was clearly admissible for some, although not all, of the purposes submitted by the prosecution. There was also plainly a forensic decision by the accused, for that evidence to be led so as to enable him to test the credibility and reliability of the complainant of her account of those alleged acts of discreditable conduct.
In R v C, CN[7], White J expressed the opinion that notwithstanding that no objection was taken by counsel, it was necessary for a trial Judge to consider and apply the provisions of s 34P of the Evidence Act in respect of each charge, and be positively satisfied, that the conditions for admissibility of each item of alleged discreditable conduct, had been met before being received by the court.
[7] [2013] SASCFC 44.
Subsequently, however, the Court of Criminal Appeal, has in two recent decisions, declined to apply that dicta, stating that:[8]
If the evidence is unchallenged, we do not consider that the judge has to consider its admissibility under s 34P of the Evidence Act. Issues may, however, arise as to the proper use of the evidence.[9]
[8] R v C, G [2013] SASCFC 83 at [50]; R v C CA [2013] SASCFC 137 and R v Maiolo (No2) (2013) SASCFC 36.
[9] [2013] SASCFC 83.
In addition, as I have noted, I sit in this trial as Judge without a jury. In R v Abrahamson[10], by analogy, the Court of Criminal Appeal noted that the ‘principle that a Judge should exclude evidence, the prejudicial effect of which outweighs its probative force, can have very little part to play in a trial by judge alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force’.
[10] (1994) 63 SASR 139 at 143
In any event I am satisfied that the evidence of the alleged discreditable conduct which had occurred before the final count on the Information, has a high degree of probative value which substantially outweighs any prejudicial effect upon the accused.
As I have explained, I received the evidence for most of the uses identified by the prosecution. I did not, however, admit it as evidence of the propensity or disposition of the accused. It was unclear with respect to some of the uncharged acts, as to whether they had all allegedly occurred before or after the final count on the Information. In so far as the alleged conduct occurred after the final count, it must necessarily have little weight in placing any of the charged offences in context.[11]
[11] R v A T M [2000] NSWCCA 475; WFS v R [2011] VSCA 347; R v Beserick (1998) 30 NSWLR 520 AT 525; R v BFB (2003) 87 SASR 278.
Those uses will be kept sufficiently separate and distinct such that there is no risk of it being used impermissibly.
·Application by accused pursuant to s 34L of the Evidence Act
The accused made application, pursuant to s 34L(1)(b) of the Evidence Act, to cross-examine the complainant on the topic of the loss of her virginity, in light of a statement made by her to a police officer on 25 November 2011. In that statement, the complainant had referred to a conversation which had allegedly occurred between the accused and herself.
In an ex tempore Ruling, I refused leave to the accused to cross examine the complainant on that topic.
·Special Arrangements
The DPP made an application pursuant to section 13 of the Evidence Act 1929 (SA) for special arrangements to be made for the complainant while she was giving her evidence.
Because of the nature of the charges, and any consequential embarrassing matters being aired, I permitted the complainant to give evidence in a closed court; with a one-way glass screen placed to obscure her view of the accused in the dock; and that she be accompanied by a court companion, sitting in the body of the court.[12] Those arrangements were made with the consent of the accused.
[12] Evidence Act 1929 (SA) ss 13 and 13A.
I have not drawn any inference adverse to the accused nor have I allowed these special arrangements to influence the weight to be given to the evidence.
Legal Directions
The Court of Criminal Appeal has recently confirmed that it is not necessary in a trial heard by judge alone, for the court to detail in its Reasons for Verdict, the obvious directions of law in respect of which any trial judge is bound to be aware.[13]
[13] R v R, R & R, LJ [2008] SASC 35 at [42].
I do not propose to restate all of the obvious directions of law.
I do however remind myself of some of the following fundamental directions which apply in every criminal trial:
·The accused comes before this court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt on the charged offence that I am then considering has been proved by the prosecution beyond a reasonable doubt.
·In assessing the evidence of the witnesses I am entitled to accept the evidence of any witness in whole, in part, or not at all. Even if I were to find that a witness may be unreliable about some of the evidence, it does not follow that I must not accept other parts of that witness’s evidence.[14]
[14] Hargraves v R [2011] HCA 44 at [25].
·The prosecution seeks to satisfy me beyond reasonable doubt entirely upon the uncorroborated evidence of the complainant, as to each of the alleged counts of indecent assault, unlawful sexual intercourse and procuring an act of gross indecency. It is for the prosecution to prove beyond reasonable doubt that the complainant is both honest and reliable, and that the sworn evidence of the accused ought to be rejected beyond reasonable doubt.[15] While I am not obliged by statute to so direct myself,[16] I will approach the evidence of the complainant with caution, and only rely upon it if I am satisfied beyond reasonable doubt that it is both credible and reliable, in respect of the count which I am then considering.
[15] Douglass v R [2012] HCA 34 at [48]
[16] Evidence Act 1929 (SA) s 34L(5).
·The accused was charged with eight separate offences on the one Information. He pleaded guilty to the eighth count upon arraignment before me. Each of the remaining seven counts must be considered separately on its merits. It does not follow that if I am satisfied beyond reasonable doubt of his guilt on one count, or the fact that he has pleaded guilty to one count, that he is guilty of another count. Counts do not stand or fall together. All of the evidence was admissible on all counts and is available in considering the complainant’s credibility and reliability as a whole.[17]
[17] R v Lapins [2007] SASC 281 at [52].
·I am not to reason that because the accused has pleaded guilty to the eighth count, or if it is proved by the prosecution beyond reasonable doubt that he has committed another charged act or uncharged act, that he has a propensity to commit sexual offences and is therefore guilty on that account of any other count.
·I do however direct myself, that as the prosecution case depends entirely upon the evidence of the complainant, where inroads have been made as to her credibility and reliability, any reservations, I may have as to her credibility or reliability, in my assessment of any one count, may be carried over to my assessment of the allegations in respect of the other counts.[18]
·The accused does not have to prove anything. The accused was not obliged to give evidence. Despite this, the accused elected to give evidence at trial, and thereby subjected himself to cross-examination. In doing so he did not assume any onus to prove or explain anything. The onus of proof on each count beyond reasonable doubt remains at all times upon the prosecution. The evidence of the accused must be taken into account and assessed in the same manner as that of any other witness.[19]
·The accused and the complainant have each given evidence. As to the issues in dispute, their respective evidence is in direct conflict with each other. It is not a question of preferring one version over the other. The question is whether the prosecution has proved its case to my satisfaction beyond reasonable doubt.[20] In Murray v R,[21] the High Court explained that:
The choice … was not to prefer one version of events over another. The question was whether the prosecution has proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the accused.
·Only proof beyond reasonable doubt of each and every element of the count that I am then considering by the Prosecution, can give rise to a conviction. It follows that if I am unsure of where the truth lies, or the Prosecution does not rebut any reasonable explanation consistent with innocence, then I must give the accused the benefit of that doubt and find him not guilty of that count.
·Evidence was received from the complainant, inter alia, as to an initial complaint; as to when it was made by the complainant; and as to why the complainant did not make it at an earlier time.[22] I direct myself that evidence of any such complaint is admissible only for the specific purposes in s 34M(4)(a) of the Evidence Act 1929 (SA); namely that it is to inform me as to how the allegations first came to light, and as to the consistency (or otherwise) of the conduct of ‘K’. It is not evidence of the truth of what is alleged by her.
·An initial complaint which is inconsistent with the evidence of ‘K’ may be used to cast doubt on the case put forward by the complainant. I direct myself that there may be many reasons why the complainant in respect of allegations of sexual offending may make a complaint at a particular time or to a particular person.
·I direct myself that if I were satisfied that the accused was significantly forensically disadvantaged by the delay of some 16 years, between the first date specified in the particulars to the Information, and the trial, then this disadvantage must be taken into account pursuant to s 34CB of the Evidence Act 1929 (SA).
·When considering any proved out of court prior inconsistent statement by a witness, such a statement is only relevant to the assessment of the credibility and reliability of that witness. Some prior inconsistent statements might concern a trivial aspect of the evidence or may be put down to a memory loss. On the other end of the scale, some omissions or inconsistencies are so fundamental that they may entirely undermine the witness’s evidence.
[18] R v Liddy (2002) 81 SASR 22 at [181 – 193]; R v Lapins, supra; R v B, P [2006] SASC 229; R v Markuleski (2001) 52 NSWLR 82; R v Brady [2014] SASCFC 7.
[19] argraves v R [2011] HCA 44 at [43 – 46].
[20] R v Calides (1983) 34 SASR 355.
[21] [2002] 211 CLR 193 at 213.
[22] Evidence Act 1929 (SA) s 34M.
Elements of the Charged Offences
·Indecent Assault

A person commits the offence of Indecent Assault if he intentionally and unlawfully applies force against another, and it occurs in circumstances of indecency.[23] The prosecution must prove in such a case each of the following elements, namely that:
[23] Criminal Law Consolidation Act 1935 (SA) s 56.
The accused applied force to the complainant.
A mere touch would constitute sufficient force.
The allegations are, in respect of:
Count 1, that the accused touched the complainant’s breasts;
Count 2, that the accused licked one of the complainant’s nipples;
Count 5, and count 7, that the accused took hold of the complainant’s pants and touched her while attempting to remove them.[24]
The application of such force was deliberate.
The accused’s conduct in each count, as described, occurred in circumstances of indecency.
If the prosecution proves elements one and two beyond reasonable, the conduct clearly occurred in circumstances of indecency.
The accused’s conduct, in each count, as described, was unlawful.
As no person aged under 17 years is capable of consenting to an indecent assault, there is no doubt if the prosecution proves elements one, two and three beyond reasonable doubt, that the accused’s acts were unlawful.
[24] R v A G P (2012) 113 SASR 146.
Unlawful Sexual Intercourse
The offence of unlawful sexual intercourse is committed when an accused person is proved to have had sexual intercourse with a person under the age of 17 years.[25] The offence has three elements, each of which must be proved beyond reasonable doubt, as follows:
[25] Criminal Law Consolidation Act 1935 (SA) s 49(3).
That the accused had intentional sexual intercourse with the complainant.
The allegations are, in respect of count 3 and count 6, that the accused performed cunnilingus upon the complainant. In count 8 the accused has pleaded guilty to penile/vaginal sexual intercourse with the complainant.
That such sexual intercourse was unlawful.
If such acts of sexual intercourse did occur they were clearly unlawful.
The complainant with whom the accused had sexual intercourse was under the age of 17 years at the time of the sexual intercourse.
Procuring an Act of Gross Indecency
The elements of this offence in count 4 are:
That the act of touching the accused’s penis was performed by the complainant.
That the said act was grossly indecent having regard to reasonable contemporary standards.
That the accused voluntarily and intentionally incited or caused the complainant to touch his penis.
That the complainant was under the age of 16 years at the time.[26]
[26] Criminal Law Consolidation Act 1935 (SA) s 58(1)(b).
Overview
The prosecution called oral evidence from the complainant ‘K’, her father ‘S’, her brother ‘A’, mother ‘L’ and the Clinical Psychologist Dr Craig Anthony Stapleton. There were two agreed facts namely that ‘K’ had obtained a learner’s permit on 23 January 2002, and her provisional licence on 21 May 2002. It was not in dispute that the complainant was born on 28 October 1985; and the accused was born on 5 August 1962. The accused elected to give sworn evidence and was cross-examined.
Synopsis of the evidence
·The background and ‘boyfriend’ discussion
The complainant’s parents had separated when she was aged 11 years. She deposed that at the end of 1997 or early 1998, she moved in to her father’s residence while her brother ‘A’ remained with their mother. The arrangement was that ‘K’ and her brother would spend one weekend with their father and the following weekend with her mother. Her father had remarried in 2001, while her mother had remarried in 2002.
She identified that in 1997 and thereafter she resided in bedroom marked ‘two’ on a plan identified by the witness,[27] while her father slept in the bedroom marked ‘one’. On occasions the accused would stay over sleeping on the lounge floor, at her father’s house. While she initially denied that the accused had stayed in bedroom marked ‘three’ on the plan, she remembered, in cross-examination, that he had stayed in that room on one occasion.[28] When her brother stayed at the house, he resided in the bedroom marked ‘four’.
[27] Exhibit P2; T. p 15 - 16.
[28] T. p 90 - 91 (ixxn).
The complainant deposed that her father played indoor cricket on a Monday night leaving at about 6.30pm and returning between 8.30pm and 9.00pm. She said that the accused started babysitting her when her father went to indoor cricket.
The complainant deposed, in examination-in-chief that within the first few weeks of babysitting, she had asked the accused if he could be her boyfriend.[29] She was then aged 12 years. She explained that the accused had initially declined, however she was persistent, and eventually he said that he would.
[29] T. p 22.
When he gave evidence, the accused agreed that he had had a conversation with ‘K’ about her wanting him to be her boyfriend. He was not sure whether it was ‘in early 1998 or early 1999’.[30] However he was able to remember that the conversation occurred during the day, ‘because the sun was shining’. He was not babysitting, as ‘A’ and his two boys were present at ‘S’ house.[31]
[30] T. p 356 (xn).
[31] T. p 405 - 407 (xxn).
He subsequently thought that she would have been aged 13 years in 1999.[32]
[32] T. p 357.
He explained that ‘we were seated on the couch. She actually sat on my lap at first and I just pushed her gently off and said ‘no, just get off my lap …. I think there’s too much of an age difference between us, people wouldn’t understand that. If we were in India and it was an arranged marriage, but yeah, we’re not’.[33] When he was cross-examined he said that the complainant was ‘straddling’ him.[34] He said that it ‘wouldn’t have looked good if ‘S’ had come in …’. He explained that ‘it would have been fine if she was sitting sideways on my lap’.[35]
[33] T. p 357 - 358 (xn).
[34] T. p 407 (xxn).
[35] T. p 407 (xxn).
He said that he ‘did not intend that he would in fact be her boyfriend’, but told her that he would, so as to stop her from pestering him.
·The complainant’s evidence on each count
I turn now to the complainant’s evidence with respect to each of the counts on the Information.
Count 1
The complainant deposed that about two weeks after the ‘boyfriend’ discussions, the alleged offence in count 1 occurred, as follows:[36]
[36] T. p 22 - 24 (xn).
AYes, he was sitting on the couch and I was in between his legs, I was also sitting on the couch. I don’t know how it came about, whether I asked him or he asked me to sit there but he gave me a massage. He massaged my shoulders and my back. A minute or so later he then decided to put his hands underneath my shirt. At the time I wasn’t quite comfortable about wearing a bra even though I had started developing so there was no bra underneath the shirt. He then proceeded to massage my back and my shoulders but underneath the shirt. About a minute later he brushed his right hand under my armpit and the side of my breast, my right breast, but only brushed, maybe for a minute – sorry a second and then proceeded back towards my back, massaged that again. A minute later he then decided to do the same again but with both hands on both breasts and then proceeded to go to the front of my breasts and touch my nipples at the same time. When he did this I felt quite uncomfortable and I asked him what he was doing and at the same time I grabbed his arms from behind me and pulled myself away by standing up. His hand then fell away from me. I took two or three steps and sat on the rug in front of the couch and started watching TV and I didn’t say anything after that…..
AI just sat there and didn’t say anything. He didn’t say anything to me and then I waited until my dad got home and then proceeded to go to bed.
QHow long after you had moved to sit in front of the TV did your father come home?
AI can’t recall how long.
QWhat took place when your father got home on that occasion?
AI just said goodnight to my dad and walked into my room, said that I was tired and I wanted to go to bed.
QAfter that occasion did you want ‘A M T’ to keep babysitting you?
AYes.
QWhy did you want him to keep babysitting you after that?
AI felt different around ‘A M T’ compared to my parents. I felt like I could be more open with him, I could tell him what I thought and he wouldn’t judge me or criticise me in any way. Most times he would agree with me and give me his advice on everyday life so I felt quite comfortable around him.
QAfter that occasion of the first breast massage were there other occasions where he massaged your breasts?
AYes.
QOn how many occasions do you think he massaged your breasts?
AMaybe three times, maybe more.
QWhere did those occasions take place?
AIn the same spot, on the couch.
When cross-examined about this count the complainant could not specify the month in which it allegedly occurred save for it having occurred in early 1998. She repeated that it had occurred on a Monday night while the accused had been babysitting her. She acknowledged that the first time that she had given a statement to the police was in November or December 2011.[37] She had given a total of six statements. She denied that the first time the accused had acted as a babysitter was in 1999. She was adamant that he had commenced to do so in 1998.[38]
[37] T. p 87 - 91.
[38] T. p 112.
Count 2
QDid he ever touch you on the breasts with anything other than his hand?
AYes.
QOkay, I want to talk to you about that. How long after the first time he touched you on the breast on the couch did this occasion happen?
AWithin two or three weeks.
QTell me what happened on this occasion?
AI was, I was going to the toilet. The TV was on and most of the lights were turned off. As I exited from the toilet I came around the corner, so to the left, and as soon as I came around the corner I noticed ‘A M T’ was in the kitchen and he came up towards me. He pushed me into the wall, he lifted my top, so again I had no bra on at this stage, and he then sucked on my left breast….
QDo you recall what you were wearing on this occasion?
AI’m not completely sure but I believe it may have been my school uniform.
QAnd you said you had no bra on?
AYes.
QDid he say anything to you when he first saw you when you came out?
ANo….
QAnd once he pushed you up against the wall what did he do then?
AHe then – so he had his left hand on my shoulder, my right shoulder, he then lifted up my shirt so my shirt was above my left breast and then bent down low enough to suck on my left nipple.
QHow long did he do that for?
AIt would have been only been five seconds.
QAnd did he say anything to you afterwards?
ANo he just walked away.
QDid you say anything to him about that?
AInitially I was quite shocked by the experience but after I got over the shock I then became curious about it. It was later on, I don’t remember it was the same night or shortly after that, I asked him to do it again at other stages because I was quite curious about it.
QWhen you say you asked him to do it again, asked him to do what again?
ATo suck on my nipples.
QAnd did he do that again?
AYes.
QOn how many occasions did he do that?
AAt least three.[39]
[39] T. p 24 - 26 (xn).
When cross-examined the complainant said that she thought that the event in count 2 had occurred in February or March 1998, about two to three weeks after the event in count 1.[40]
[40] T. p 95 (xxn).
Count 3
Q…. Did he ever touch you on your body other than on your breasts?
AYes.
QWhere else on your body did he touch you apart from your breasts?
AOn my vagina.
QI want to talk about the first time that he touched you on your vagina. How old were you when that first took place?
A12.
QHow long after the occasion you told us about outside the bathroom door of the nipple licking, how long after that was the time that he touched you on the vagina?
AIt may have been the same night or within a few weeks later.
QSo on this occasion where he touched you on the vagina, what did he touch you with?
AHis tongue.
QWhere did this happen?
AOn the lounge room floor … on a Monday … because he was babysitting me and there was nobody else in the house…
QTell me about what happened on this occasion?
AI am not sure exactly the first occasion this occurred whether it was after a massage or I was already laying on the floor. I believe it may have been after a massage but I was laying on the floor initially. I was laying on my stomach and I was watching TV. He knelt down beside me and grabbed my right shoulder and turned me over so I was on my back. He then proceeded to pull my t-shirt up again, no bra and lick both of my nipples. After he licked my nipples he would then kiss and lick my stomach as well as the side of my torso. He would then move his way down, grab my pants whether – I believe they were shorts for the majority of the time – and pulled both my knickers and my shorts off. He then proceeded to kiss and lick my outer thighs and then spread my legs and kissed my inner thighs and then proceeded to suck and kiss my vagina….
QDid his tongue make contact with your vagina?
AYes.
QDid his tongue go inside your vagina?
ANo.
QWhere exactly did it go, can you describe that for us?
AI didn’t know at the time but I do now know it was my clitoris.
QWhen you say you didn’t know at the time, what do you mean?
AI didn’t have the knowledge behind me, I didn’t connect of ‘down there’.
QBut you are now aware that is the part he was touching with his tongue.
AYes.
QHow long did he do that for?
AMaybe five minutes.
QAre you aware of what’s considered the outer and inner lips of the vagina?
AYes.
QDid his tongue go inside of the outer lips of the vagina?
AI can’t be completely sure. I do know that it was on the clitoris. I do not believe it went inside but I do know that it was on the clitoris so I am not sure if my legs were spread enough to open the lips up but that is the only memory I have got of that particular part of my body.
QHow long did he use his tongue in that way for?
AFor about five minutes.
QHow did that end?
AI orgasmed.
QDid he say anything to you after that had happened?
AI believe he may have but I can’t recall exactly what it was ….
QDid he ever do that again on any other occasion?
AYes.
QHow many other occasions did he do that?
AAt least three times.[41]
[41] T. p 28.
When she was cross-examined, the complainant repeated that count 3 ‘may have occurred the same night that the second charge occurred. If it wasn’t, it was within a couple of weeks, so it could have been March or April’.[42]
[42] T. p 97.
She explained that the other, uncharged, acts of cunnilingus had occurred on Monday nights early on in 1998.[43]
[43] T. p 106 - 107 (xxn).
Count 4
Q…. Did you ever touch him at all?
AYes.
QWhere did you touch him?
AOn his penis.
QOn how many occasions did you touch him on his penis?
AI remember the one occasion …. I believe I may have just turned 13
….
QHow did it come about that you touched him on the penis?
A…. For some reason I think it was a Saturday. It was during the day and my brother and my dad were not around. I believe they may have been going to the shops, so it was just me and A M T in the house. A M T was sitting on one of the couches. Now at this time the couches were against the window ….
QJust tell me what happened.
AI didn’t see him do this but I saw him with his pants down. He was sitting on the couch with his pants down. They were I believe maybe halfway down his thigh and I could see his penis exposed and he was holding on to it.
QWas he wearing underwear?
AAt this time if he was wearing underwear, it was underneath the pants. I can’t recall seeing underwear.
QSo you could see his penis, could you see the rest of his groin area as well.
AYes.
QWhat was he doing holding onto his penis, what was he doing with it?
AHe was just holding onto it I believe at the time. Again, I didn’t have the knowledge behind me, I didn’t know what an erect penis looked like but having the knowledge now, I knew that it was erect at the time and he was just holding the base of the penis.
QWas that the first time you’d ever seen his penis?
AYes.
Q…. You said he was on the couch holding onto his penis, what happened then?
AHe spoke to me and asked me to touch his penis. I said I didn’t want to.
QWhat exactly did he say to you?
AHe said ‘come and touch my penis’. I said ‘no, I don’t want to’. He said ‘come on it won’t bite’. It was then that I felt compelled. I felt like I had to do it, there was no other way out, there was no excuse to give to not and I believed at the time I had a fear of some sort of abandonment, that he would not like me anymore if I didn’t do what he told me, so that’s where that compelling feeling came from. So I went up to him and I used my two front fingers and my thumb and quickly touched his penis just below his head, the head of the penis and I think it was there for one second. I didn’t move it up and down or anything like that. I just placed my fingers on his penis. I felt that that was enough to satisfy his request and I didn’t look at him, I didn’t talk to him, I just touched his penis and then proceeded to walk away and I went into my bedroom, closed the door and didn’t come out until my dad came home.
QDid he say anything to you after you touched his penis?
ANo.
QDid you say anything to him?
ANo.
Q…. Did you ever touch his penis with your hand on any other occasion other than that?
ANo. [44]
[44] T. p 39.
When she was cross-examined, the complainant said that it had occurred between June and December 1998, during the day, on a Saturday or a Sunday. She was cross-examined at length about the statements that she had made to the police on 5 December 2011 and 20 January 2012. In those statements, she had told the police that she had seen the accused ‘pull his penis from his pants’, as contrasted with her sworn evidence that she did not see him pull it out.[45] She conceded that when she spoke to the police, the statements reflected her memory at the time, but that she had focused her mind on the events since then.
[45] T. p 136 - 140 (xxn).
She said that she believed that the accused’s penis was circumcised but could ‘not be 100% sure’.
Count 5
A… I believe I was asleep and I could hear creaking sounds outside of my bedroom. Now dad’s floor was a floorboard. Now he had wood underneath the carpet at the time but when you walked in my dad’s house the floor creaked. It was very easily creaked and I could hear, I knew it was A M T because everything was quiet, I could hear A M T proceeding from where his bed was to my bedroom by the sound of where the creaking was … Now at the time I was situated on my bed, on my left side, and I was facing the windows. So my back was against the door so I couldn’t see anybody coming in. A M T had actually come into the bedroom and I could tell it was him. I could feel the heaviness of him being there. I think he also had some sort of smell, so I could tell it was him … I could hear him coming up towards my bed. He then crouched down on his knees … I could feel the heaviness on my mattress as he was leaning on it. He then put his hands underneath the mattress, however, at the time I where I was situated there was two sheets and a doona on my bed and I was situated between the two sheets so I had a sheet and a cover over the top of me. I could feel his hands coming up towards me, however I could tell that he was in between the top sheet and the cover because I couldn’t feel his hand on my skin or, not on my skin, on my clothes that I was wearing, my pyjamas. So I believe that when he realised this he then put his hands underneath my sheet …
QDid you feel his hands on you at any stage?
AYes. So when he put his hands underneath the sheets his hands were situated around where my back was. He then proceeded to put his hands down further towards my bottom … he then put his hands on – his right hand on my right hip and his left hand above my bottom and grabbed both my pyjama bottoms and knickers and pulled them both down at the same time … as soon as I realised what he was doing I pulled my thighs into each other. So I was tightening, trying to hold on to my pyjama pants with my legs. Because I did this, when he pulled my pants down he could only go just under my bottom and that’s as far as he could go because of how tight I was holding onto the pyjamas … he just decided to leave. He didn’t try to proceed pulling my pants down any further when they got to that point …
QDid it ever happen on any other occasions that he came into your room at night?
AYes.
QHow many other occasions did it happen?
AHe came into my room – I recall at least another two times. [46]
[46] T. p 46.

When cross-examined she said that the event, the subject of count 5 had occurred in 1999, at night time, on Friday, Saturday or Sunday. She was questioned about a note of Dr Stapleton to the effect that she had told him that the accused had been naked. She had no recollection of telling that to him. She conceded that she had complained to the accused that her mother’s husband had come into her room at her mother’s house. She denied that she had made up the allegation against the accused.[47] She was cross-examined about a written account given by her on 24 November 2011, that she only had a ‘vague memory’. She explained that she had a vague memory that the accused might, on an occasion, have taken her pants off. She maintained that her statement was not directed to the accused pulling down her pants,[48] the subject of count 5.
[47] T. p 146, 149 - 150 (xxn)
[48] T. p 243 (xxn)
Count 6[49]
[49] T. p 32.
Q…. You mentioned there were about three other occasions where he licked your vagina.
AYes.
QHow did it come about on the other occasions that it took place?
AI believe, I remember being curious about it and in a way I encouraged him being at that age and having curiosity of sex type stuff. Yeah, it was just a curiosity side I would either ask him for a massage or I would use body language by laying on the floor in the TV as like an encouragement for him to do so.
QDid he ever touch your vagina with his mouth when there was anyone else in the room?
AYes.
QI want to talk to you about that. Who else was in the room on any of these occasions?
AMy brother.
QI want to talk to you about that occasion. Where did this take place?
AThis took place in the spare room, so bedroom three. There was a queen size bed or double bed and both my brother and I were playing in the bed that is when it occurred ….
QHow old were you when this took place?
AI believe I was around the age of 13?
QDid it happen on a weekend or on a week day?
AOn a weekend.
QHow do you know it was a weekend?
AMy brother was in the room with me and he only came home for weekends.
QDid this take place during the day or the night?
AI believe it was a Saturday or a Sunday during the day.
QWhat were you doing in that room?
AMy brother and I were playing some sort of game, I can’t recall exactly what it was but we were sitting on the bed with – on the bed with the cover over the top of us and the pillows behind us. So we were sitting upright in the bed.
QWhen you say ‘the cover’ what sort of cover was it?
ALike a doona.
QWas your body covered by the doona?
AYes.
QWas your brother’s body covered?
AYes.
QWas there anyone else in the room apart from your brother?
AInitially no.
QIf you were 13 at the time how old was your brother?
AAbout 8.
QYou said ‘initially no’, was there anyone else in the room. At some point did someone else come into the room?
AYes.
QWho was that?
AA M T …
QHow long after the first occasion on which you have told us he performed oral sex on you, how long after that did this happen?
AWithin three months.
QWhen you were in the bed on this occasion, what were you wearing?
AI was wearing a t-shirt and shorts.
QDid you have underwear on?
AYes.
QWere you wearing a bra?
AI can’t be certain.
QWhen you say you were wearing shorts, do you remember what those shorts were like?
AI believe they may have been like sport shorts, they weren’t long shorts but they weren’t really short either. They were in between. Maybe almost halfway down the thigh shorts.
QWere they tight shorts or were they loose shorts?
ALoose shorts …
QTell me what happened once A M T came into the room?
AHe came into the room and came to the end of the bed. ‘A’ said that we were playing a game and asked if he would like to play.
QA M T didn’t ask what type of game we were playing, didn’t want to – he wanted to play his own little game rather than be included in our already played game. He didn’t explain what he was going to do but he agreed ‘yes, I will play a game with you’ …
AHe went to the end of the bed and went under the cover and I believe we may have been on top of the sheets, so in between the sheets and the cover. He went under the cover and went a bit like a snake like motion under the cover so we couldn’t tell whether he was going to come to me or my brother and we were on each side of the bed so we weren’t too far but we weren’t too close either. He then went up to my brother and started tickling him. I could tell because I could tell where A M T was at the time and my brother started laughing and giggling in a motion that you could tell he was being tickled … I couldn’t see A T M’s hands, I am just going off where A T M’s position was right where A was and the fact that A was giggling and shoving all over the place like you would as if he was being tickled.
QHow long did he do that to A for?
ATwo seconds, three seconds.
QWhat happened then?
A… the second time he decided to come in again once again with a snake like motion wasn’t sure he was going to tickle. He then came towards me. As he got closer to us, he came towards me and I lifted my knees up in anticipation of being tickled as like a bit of a shield. He then put his hand underneath, in between my legs and touched my vagina over the top of my shorts. It was only brief, maybe a second, maybe two seconds in enough time to shock me and then before I was even shocked – getting over the shock he went to A and started tickling him again … this time when he came up to us, he again went to me. My knees were up, I hadn’t moved from the original position and he stuck his head between my ankles. He then grabbed my shorts quite quickly and them over from my left to my right side and enough to expose my vagina because he pulled my knickers at the same time. He then put his mouth on my vagina using his tongue over the whole lot of my vagina. I could feel the prickles on his face and as I believed he may have had some sort of growth on his face at the time. This lasted about five or ten seconds. I can actually hear the sucking motion, the sucking sound and felt quite - not scared I thought of what he was doing as such more scared that my brother was going to find out and that was my ultimate fear that someone was going to find out about our relationship so I was quite fearful of that. After he was there for between five and ten seconds he then put – some my shorts came away, so he put my shorts back to where they were and then went up to A but he didn’t tickle him this time, he just put his head between me and my brother and went Boo to my brother …
QWhen you say that he was licking your vagina during this occasion, what exactly was he doing?
AHe was mainly using his tongue over the whole outer part of my vagina. My legs weren’t spread and he didn’t spread my lips apart or anything like that. He was mainly – he used his tongue in a flat – like motion but he was also using his lips in a kissing kind of way – not kissing, more sucking and that’s where this sound had come from.
QDid he say anything to you after that had happened?
AI can’t recall.
QDid you say anything to him?
ANo.
When she was cross-examined the complainant remembered that the bed was a waterbed, and that she could recall the theme from ‘Jaws’ at the time. She said that it occurred during the daytime on a weekend in 1998 or 1999. She remembered that it was a double or queen size bed which had a ‘doona’.[50]
[50] T. p 121 - 130 (xxn)
It was put to her that she and her brother were playing ‘hide and seek’ and the accused had merely jumped on the bed.[51] The complainant repeated that the accused had placed his mouth on her vagina.
[51] T. p 121 - 122 (xxn)
Count 7
QWhere did you go?[52]
AI can’t recall exactly where, we were doing some sort of camping. It may have been in the backyard of my dad’s house it could have been somewhere else. I, I have no memory of it before I went to bed so I can’t describe exactly where we were at the time.
QWho else was with you on this occasion when you were camping?
AMy brother, A M T and my dad … My brother and I were sharing a two or three man tent … I believe I was either 13 or 14.
QTell me what you recall about this occasion?
A… I was still awake and I was laying on my left side so my back was towards my brother and I could hear the zipper of the entrance of the tent being moved so I quickly looked over to where the entrance was which was where my feet were situated and I could see the zipper of the door being opened … I could see A M T moving the door away and entering the tent. He crouched down and by this stage I had moved onto my back to see what was going on … As soon as I realised it was A M T I asked him ‘what are you doing here? Get out’ but not too higher voice that my brother would be woken up because of it was quiet. A M T then crouched down he had his knees on either side of around about my calf area of my feet … He then told me that A won’t wake up that it will be Ok. At the same time he then went back onto his knees, so all of his weight was on his knees and he balanced himself enough to grab hold of my pyjama pants and knickers and pulled them down. As he was pulling them down, I grabbed hold of the front on my pyjama pants and tried to pull them back up. As this was occurring we could hear A like stirring … I had my hands on my pyjama pants and I grabbed my right hand and pushed it on to A M T’s shoulder and tried to push him away. But at the same time A M T then proceeded to leave and exited the tent and I remember he actually closed the zipper of the tent door as well. As soon as he had done that I then pulled my pants back up and managed to go to sleep.
[52] T. p 57.
When cross-examined the complainant said that this count 7 had occurred between January and March 1999. She could not now remember where it had occurred, whether it be at West Beach; at her father’s home; or somewhere else.[53] She was asked about a statement made by her on 25 November 2011, in which she had written ‘In the middle of the night ‘A M T’ was brave enough to sneak into the tent and have sex with me while ‘A’ was sleeping next to me … I begged him to stop so ‘A’ wouldn’t wake’.[54]
[53] T. p 101 (xxn)
[54] T. p 181 - 182 (xxn)
She conceded that at the time she thought it was penile/vaginal intercourse. She said that she was not concentrating when she wrote that account. She had consistently stated thereafter that no sex had occurred on that night.[55] It was put to her that the camping trip had occurred at Goolwa, and that her father had been in her tent. She denied that suggestion.[56]
[55] T. p 182 - 185 (xxn)
[56] T. p 237, 244 (xxn)
Count 8
The complainant deposed that this offence, to which the accused has pleaded guilty, had occurred in the month of April 2002.[57]
[57] T. p 101
She said that she had run away from her mother’s home, and had stayed at the accused’s house for three nights. On the first night, she had slept on a couch.
She said that on the second night the accused had said that:
… it’s probably best that I stay in his bed and the reason for this is so the spirits in the magical world can see us as a magical couple, and it would be perceived as frowned upon by the spirits if we weren’t sharing the same bed – we needed to prove our relationship.[58]
[58] T. p 66 - 67
She explained that she had slept in his bed on that second night, describing the sexual intercourse as follows:
AInitially when I went into the bed, I was on – if you’re facing the bed, so you’re at the end of the bed, I was on the left side. I got into the bed and the covers with my clothes on. Tony walked into the bedroom, noticed that I had the clothes on and told me that I should take my clothes off, that he does not like clothes on in bed, that it dirtied the bed, so I told him that I was cold, that I wanted to keep my clothes on. He said that he’ll keep me warm. I then again felt compelled for – like there was no reason I could give to not keep my clothes on, so I took my clothes off whilst under the covers and kicked them out onto the floor from under the covers. I believe Tony left the room to go into the kitchen at this stage whilst I was taking my clothes off and then came in and took his own clothes off and then proceeded to come into the bed. When he came into the bed, at this stage I was laying on my right side so my back was towards Tony. He came in from behind and cuddled me from behind. After a minute or two, he asked me to give him a kiss. I turned over to face him and he proceeded to kiss me. I didn’t kiss him. I never did, never liked that, but he was – he liked to kiss me when it came to it. So after a minute of kissing, he then pulled me, pushed me onto my back by using his hand onto my shoulder and at the same time, he then put himself in between my legs, his body in between my legs and used his legs to manoeuvre my legs apart. As soon as he done this, I knew what was going to happen from previous experience, so I put my arm – my right arm over my eyes as I don’t – didn’t like it and this was my way of dealing with it. He then – I could tell that he had hold of his penis towards the head of his penis because he then proceeded to put it towards my vagina and I could feel his knuckles of his hand in between my thighs so I knew he had hold of his penis and he was like guiding his penis into my vagina by using his hands and I could tell by the feel of his hands. This lasted for about maybe 10 minutes. I can’t recall if he ejaculated or anything else. All that I can recall is that it didn’t go far, maybe an inch. Every time penetration occurred, it doesn’t go far in. It felt so tight. I was – like, I was too small for him and very uncomfortable, it didn’t feel natural at all, so I can definitely recall this feeling. After the 10 minutes, he then went back in the same position he was before he went on top of me. I went back onto my right side again so my back was towards him and he cuddled into me. He then put his left hand on my right breast and snuggled into me. I asked him to take his hand off my breast and he said he needed to sleep. As I felt that there was no more of an excuse that I could give for him to do that, to take his hand off, I allowed it and we then fell asleep from there.
She denied that this count 8 had occurred in July 2002. She deposed that it occurred on a Wednesday or Thursday night in April 2002, and that she had taken the bus to Salisbury to meet him.[59]
[59] T. p 101, 110 - 111 (xxn) and T. p 200
Discreditable conduct
The complainant gave evidence that on at least 10 other occasions between the ages of 12 and 19 years, the accused had inserted his penis into her vagina[60]. She said that some of these sexual acts had occurred on her bed at her father’s house, while others on the lounge room floor.
[60] T. p 104 -105 (xxn)
I set out her evidence in that respect:
QWere there ever any occasions where the accused touched you with his penis?
AYes.
QDid this happen while he was babysitting you or on other times when he was at your father’s house?
AI can’t recall exactly whether it was during the babysitting or after. I believe I may have been around the age of 14. It could have been earlier. Unfortunately my only memories of this occurring is by feel. I don’t have visual memory. I can’t recall where it was, what time or day it was, what age I was. It was a bit like I had my eyes shut at the time. I have no virtual memory. The only memory I have of this is the tightness sensation occurring when he tried to penetrate me that is the main part of my memories. I knew it occurred for quite some time, quite a lot and that’s just remembering the – thinking it about it many years ago, knowing that it happened quite often.
QSo I just want to clarify that. When you say it happened quite often, what are saying happened?
APenetration with his penis.
QPenetration of what with his penis.
APenetration into my vagina.
QHow may time did you think that took place?
AAt least ten.
QDo you recall the first occasion on which it took place?
ANo.
QAre you able to say how old you were?
AI believe 14, maybe earlier.
The complainant also deposed that on at least three occasions the accused had performed oral sex upon her[61]. One such occasion allegedly occurred in the spa in the backyard of her father’s house, as the complainant deposed:
[61] T. p 105 - 106 (xxn)
Q… where in the backyard of your father’s house did something of a sexual nature happen?
AIn the spa.
QHow old were you when this took place?
AI believe I may have been 14.
QAnd was anyone else present when this took place?
AYes.
QWho else?
AI believe my brother was and A M T were both in the spa with me at the time and my dad was in the house.
QWhat time of day was this?
ANight time.
QWas it a weekend or a weekday?
AI believe it was on a weekend.
QWhat happened in the spa on this occasion?
A… we were playing a game where we would all go under the water and hold our breath and it was a competition on who could hold their breath the longest. When it was A M T’s turn he held his breath went under the water and A and I counted out so we could tell how long he was under the water for. I was situated in the corner of the spa and A M T … put his head in between my vagina, sorry, in between my legs where my vagina was and put, grabbed the side of my bathers and pulled them over so that my vagina was exposed. He then performed oral sex on me while he was under. Now, this may only have been under five seconds as he could only hold his breath for so long. As I recall at the time he, because of how long, how tall he was, had to keep, keep himself sunk and to do that had his legs on the other side of the spa and was kicking them … It might have just been a competition with A and A M T but A M T did go under at least three times and each time he went down performed oral sex on me.
She said, in cross-examination, that she thought that the accused had only been in the spa once with her. It was a night time and she was aged 14 or 15 years.[62]
[62] T. p 150 (xxn)
The complainant also asserted that on at least three occasions the accused had sucked on her nipples,[63]and had on two other occasions massaged her breasts.[64]
[63] T. p 107 - 109
[64] T. p 108 (xxn)
She deposed that the accused had entered her bedroom in the middle of the night on two occasions other than that in count 5. She deposed that when she was aged 14 years, the accused had driven her to a wooded area. He had placed his right arm on her left breast, and said ‘Let’s do it – let’s have sex here’.[65]
[65] T. p 62 - 63
She deposed that on the third day of the event constituting count 8 on the Information, the accused had placed his finger into her vagina. When cross-examined, however, she conceded that she was not certain whether it had occurred on that third night, or at some other time.[66] She gave evidence as to an ongoing sexual relationship with the accused. Correspondence from the accused to the complainant after the charged offences was tendered by consent to evidence the ongoing close relationship between them.[67]
[66] T. p 215 (xxn)
[67] Ex P3 and Ex P4. T. p 446

The relationship between them had ended when she was aged 19 years in 2004.[68]
[68] T. p 78 - 82
As I have explained, I have put to one side the evidence of alleged discreditable conducted involved in the post count 8 relationship, save for its relevance to the accused’s case that the complainant was neither a credible nor reliable witness.
Complaint evidence
The complainant had suffered from depression and was eventually referred to Dr Stapleton. She had given birth to her first child in August 2010, and had been initially diagnosed in May 2011. She had been prescribed medication such as Zoloft.
·The complainant
The complainant deposed that she had informed her psychologist, Dr Stapleton, in November 2011, that ‘from the age of 12 [she] had asked [her] dad’s best friend…if he could be [her] boyfriend and that he conducted oral sex on [her].’[69] She did not believe that she had mentioned any other incident to Dr Stapleton. She explained that the sexual relationship had occurred between ages 12 to 20 years. She was cross-examined about having told Dr Stapleton that the ‘accused had got naked and climbed into her bed with her’. She did not recall that she had said that to him.[70]
[69] T p. 84.
[70] T. p 159 (xxn)
She explained that she had not complained at an earlier time because she ‘was waiting for the right questions…for [her] to tell [her psychologist] but by November [she] then decided [she] was just going to tell him’.[71]
[71] T p. 84.
The allegations were reported to the police in November 2011. It is trite that the mere report to the police does not demonstrate consistency by the complainant.[72]
·Dr Stapleton
[72] R v A, GP [2012] SASCFC 81 at [20]-[23]
The prosecution called oral evidence from Dr Stapleton. He deposed from his notes that she had told him of the oral sex when she attended upon him on 17 November 2011.[73]
[73] T p. 164.
Dr Stapleton also deposed that the complainant had told him that the accused ‘would get naked and get into bed with her’.[74]
[74] T. p 166 - 168 (xxn)
There was no objection to the complaint evidence led by the prosecution. In my opinion even though it was more specifically directed to the alleged acts of cunnilingus and therefore to counts 3 and 6 on the Information, it was neither general nor vague. While there was no specific reference to penile/vaginal sexual intercourse, the fact remains that the accused has admitted that offending conduct by his plea of guilty to count 8.
It was properly admitted for the limited purposes in s 34M of the Evidence Act 1929 (SA) namely to inform me as to how the allegations first came to light; and as evidence of the consistency or inconsistency of the conduct of the complainant.
I repeat that her initial complaint to Dr Stapleton is not evidence of the truth of what she said; and there may be many reasons as to why she had had made the complaint at that time. Indeed the complainant explained that she had made the complaint because she was then receiving treatment for her depression, and was exploring causes for that depression.
As is apparent from these Reasons for verdict I find that this initial complaint from the complainant to Dr Stapleton was consistent with her conduct, notwithstanding some, ultimately insignificant, other comments made to him.
The evidence of the complainant’s brother ‘A’
‘A’ was born on 18 June 1999 and was accordingly aged about 7½ years, when the complainant was aged 12 years. He was aged 23 years at trial. He confirmed that following his parent’s separation he had resided mainly with their mother, however he and the complainant would be together each weekend, alternating between their parents.
He knew the accused, and had seen him at his father’s house ‘usually every weekend that I was there’.
He recalled that the accused would occasionally stay over and sleep on the lounge room floor. He did recall that the bedroom No 3 had a waterbed in it, and that the accused had slept there, although only once or twice.
He said that he played in bedroom 3 quite often but couldn’t recall being in that room with the complainant, nor being on the waterbed.[75]
[75] T. p 255
He could not recall any linen on the waterbed.
He recalled that there was a large spa in the backyard, and that he and the complainant had used it together. He did not recall whether the accused had used it.
He couldn’t recall having gone camping, but did recall sleeping in a tent in the backyard of his father’s house, when his cousins came for Christmas.
He did not recall the complainant ever sharing a tent with him.
He said that he had no memory of seeing anything inappropriate between the complainant and the accused.
The evidence of the complainant’s mother ‘L’
‘L’ explained that the complainant was born on 28 October 1985 while her son ‘A’ was born on 18 June 1990. Her relationship of about 13 years with ‘S’ had ended in September 1997.
She thought that the complainant had resided permanently with ‘S’ from ‘about March or April 1998’, however had moved back to her house when aged about 15 years.
She could not now remember when ‘S’ had played indoor cricket, ‘as it was so long ago’. She said that when the complainant was aged 16 years her present husband had found some empty packets of Panadol in the complainant’s bedroom. She agreed that she had described this as a ‘cry from ‘K’ to pay more attention to her’.
She said that the complainant had run away from home and stayed with the accused for about three days.[76] She said that she had rung the accused, who told her that he did not telephone her, as he could not betray the complainant’s confidence. She deposed that the complainant had joined the Navy in 2003.
[76] T. p 326
She agreed with the suggestion that both ‘A’ and the complainant had ‘got on well with the accused who was like a second father to them’.[77]
[77] T. p 333
The evidence of the complainant’s father ‘S’
‘S’ explained that the complainant moved in with him in January 1998. He had to make arrangements and had given notice to his employer straight after the Christmas break.[78]
[78] T. p 263
He explained the various alterations which he had undertaken to his house since moving there in September 1997.
He had placed a waterbed and a dartboard in bedroom No 3, within 2 weeks of taking possession of the house in September 1997. He had placed sheets and a quilt on that bed.[79]
[79] T. p 268
In cross-examination he said that he could recall an occasion when he had told the accused and the children not to jump on the waterbed.
He said that ‘it would have been common’ for ‘A’ and the complainant to play in bedroom No 3.
He had known the accused since primary school days, and they had kept in contact regularly over the years.
‘S’ explained that the accused would sleep over at his house two or three times a week – with one of those nights on a Friday, as the accused would bring his own children over to his house. This went on until early 2000.
On most occasions the accused would sleep on the floor of the lounge.[80] ‘S’ had played indoor cricket at 6.00pm; 7.30pm or 9.00pm on Monday nights. The game would last about 1½ hours. The accused had told him that he ‘was happy to stay with the complainant and play Nintendo’. The accused would sleep in his ‘jocks and a t-shirt’ when he slept over, while in the winter months, he would wear ‘tracksuit bottoms’. He recalled an occasion when the accused had worn a ‘top and just jocks’, and the 14 or 15 year old complainant had been upset.[81]
[80] T. p 276
[81] T. p 281 - 282
‘S’ was asked about whether he had gone camping with his children and the accused - the subject of count 7 on the Information. He said that he had only gone camping with the accused on one occasion – and that was at West Beach.
He said that his children ‘K’ and ‘A’ went with him, and thought that the accused’s two sons may also have attended. He took two tents – one for himself and the other for the accused. He could not recall who had slept in each of those two tents.[82] In cross-examination he repeated that ‘maybe the accused’s two sons had attended’. He said that they had also driven to Goolwa, but had not camped there.[83]
[82] T. p 282
[83] T. p 311 - 312
He also recalled that in Christmas 1998, some 18 children were sleeping in tents in the backyard of his house. He was asked who ‘K’ had slept with in the tent. He said: ‘I couldn’t tell you. It would have been Linda’s girls and her niece, her other nieces’.[84] He said that the accused had slept in ‘S’s’ house on that occasion at Christmas, with ‘S’ sleeping on the lounge room couch, and the accused sleeping on the dining room floor.
[84] T. p 284
‘S’ described the spa as being a 2½ metre by 1½ metre rectangle.
He deposed to seeing the complainant and her brother ‘A’ use the spa, and had seen the accused use the spa,[85]with ‘A’ and the complainant.
[85] T. p 274
He had no memory of anything inappropriate having occurred.
When cross-examined he conceded that he was angry with the accused in light of the allegations.[86]
[86] T. p 305
He deposed that the accused had stayed with the complainant on Monday nights ‘probably more than 30 times … maybe up to 100’.[87]
[87] T. p 304, 309
It was put to him that he had made a previous inconsistent statement to the police when he had described the accused as only babysitting ‘occasionally’.
He explained that when he had spoken to the police earlier, ‘it wasn’t in my head at the time’, and that, ‘he was unaware that any sexual offending had occurred while the accused was babysitting her’, and it was only later that he started putting things together.[88]
[88] T. p 316 (re xn)
The defence case
·The evidence of the accused
The accused denied the allegations of the complainant in respect of each of the other counts namely counts 1 to 7 on the Information.
He denied ever having been sexually attracted to the complainant, saying that he had sexual intercourse with her on the occasion in count 8 ‘to comply with her will’.[89] He was first made aware of the allegations in the month of January 2012.
[89] T. p 388
He was shocked by the complainant’s allegations. He regarded their relationship as an excellent one. He had exchanged correspondence with her well after the event in count 8. He had been invited to her engagement and to see her first child.
The accused deposed that he had played indoor cricket with ‘S’ until July 2000 when he had suffered an adductor muscle injury to his groin. He was unable to work as a scaffolder until February/March 2001.
He explained that when he stayed at ‘S’ house he generally slept in bedroom No 3, and it was only if it was unavailable that he slept on the lounge room floor.[90]
[90] T. p 345
He was asked in examination in chief, as to his response to the allegations made by the complainant.
He said that any offending alleged by the complainant to have occurred before 1999 was objectively wrong and patently so. He denied having ‘babysat’ the complainant in either 1997 or 1998.
He deposed that he had ‘babysat’ the complainant on only three occasions, the first of which had occurred on a Monday in January 1999; the second on a Monday in November or December 1999; and the final occasion on the Monday one week later in December 1999.[91]
[91] T. p 352, 355 - 356
He specifically denied each of the allegations in counts 1, 2, 3 and 4 on the Information.
In a general reference to the allegations in count 2, the accused said that he recalled an incident when he had picked up the complainant from the Golden Grove Swimming Centre. When they arrived at ‘S’ house, the complainant had a shower, and had exited the bathroom after changing her clothes.[92]
[92] T. p 361
He was asked, (xn):
QDid anything happen between the two of you?
AWhat do you mean by that?
QDid you touch her at all in any way for any reason?
AI massaged a knot that she had in her muscles.
QHow did that come about?
AShe said that she had a sore shoulder … I said show me and when I felt through her shirt, I could feel a big knot in her muscle in the scapula.
QDid you massage her back?
AYes.
QHow long for?
AProbably five or six minutes just to try and get the knot out of her muscle.
QWas she clothed at that stage?
AYes she had a shirt and tracksuit trousers on I think.
QDid you touch her in a sexual way at all during the massage?
ANo.
When cross-examined the accused denied having placed his hand under her shirt. He remembered that she had a bra on, ‘but it was a trainer one because she hadn’t developed anything by then so she was still in trainer bras’.
He recalled that her shirt was purple in colour.
He explained that:
She was sitting on the couch, right, in between my legs and I had my left hand on her left shoulder and through her shirt I was using my thumb to oscillate the muscle, but because she was sitting in front of me … I couldn’t hold her still enough to get enough on the muscle, so I suggested to her to lay on the floor flat so that I could get my thumb into the muscle without her moving … when she laid on the floor she pulled the right side of her shirt up so all I saw was where the muscle was, the top part, the underneath of her bra strap … that’s all I saw.[93]
[93] T. p 410 - 411
As to count 4 he denied ever asking the complainant to touch his penis. He explained that he had been circumcised.
As to count 5 on the Information, the accused agreed that when he had stayed over at ‘S’ house, he had occasionally been in the complainant’s bedroom, to talk or just for ‘generalised things’.[94] He denied however ever having gone into her room when she was asleep. He denied ever having attempted to pull down or remove the complainant’s clothing. He denied any suggestion of being naked in her bedroom. He did however concede that on one occasion the complainant had spoken to her father about the accused wearing ‘jocks’ and a ‘t-shirt’.
[94] T. p 364
He said that he had discussed spiritual matters with the complainant, but also with others in the family. He said that ‘it was a curiosity to her when she was aged 13 or 14 years. She had become interested in it when she was aged 15 or 16 years.[95]
[95] T. p 365 (xn)
As to count 6 on the Information, the accused said that on only one occasion did he, the complainant and ‘A’ play a game on the waterbed in bedroom 3.[96]
[96] T. p 368 (xxn)
He said that ‘he was watching football on television with ‘S’. He heard the kids laughing and giggling. I just poked my head in and out in a fun way’.
He said that ‘A’ and the complainant had ‘pulled the covers over their head in like a hide and seek way and I just went running in and I jumped … straight in between the middle of them on to the waterbed, and ‘S’ yelled out ‘Don’t jump on the waterbed, you’ll split it’ … [the complainant] and ‘A’ pulled the quilt down from over their heads now and I put my hand up along the bottom of it, and was making the Jaws fin and doing a Jaws music …’[97]
[97] T. p 369 (xn)
He then said …
AI went across to ‘K’ and I put my hand on her leg and it was hard to sort of see anything under there, I felt from where her leg was, where my hand was, I knew her leg was there and she had long jean shorts on and the only bit of skin that was exposed was on top of her knees so I had stubble on my face at that time so I put it on there and put a spiky on her leg, on her quad, on the bottom of the quad just above her knee. And then ‘A’ jumped on me, ‘K’ pulled her right leg up and hit me in the side of the head at the same time so I bucked ‘A’ off and he shot off me …
QAt any stage did you move the clothing that ‘K’ was wearing to expose her vaginal area.
ANo
QDid you touch her in the vaginal area?
ANo to my knowledge. I mean like I say I remember grabbing her on – on the shin, and when I jumped up and come out from under the quilt and put my hands down, I don’t know where my hand went before I launched on to ‘A’ …
QDid you perform any oral sexual intercourse with her during that game?
ANo, not at all and the reason – can I just say this: she had long jean shorts on, I would have had to have the tongue of a giraffe to do anything like that, and I’m not being funny when I say that’.
As to count 7 on the Information, he accused said that he had gone camping with ‘S’ and his family once only and that it was at the Goolwa Caravan Park.
He said that it was ‘S’ who went to West Beach some months later in October 1999 – and that the accused did not go there.
He said that at Goolwa he slept in a tent with his two boys and ‘S’ had slept in a tent with ‘A’ and the complainant.[98]
[98] T. p 366
As to count 8 on the Information, the accused deposed that the offence, the subject of that count, had occurred in the month of July 2002, and not in April 2002 as deposed by the complainant. He said that he remembered that it was after 4 July 2002 because that was his niece’s birthday.
The accused agreed that the complainant had stayed at his house earlier, in April 2002. He denied that she had slept in his bed on that occasion. He said that he had telephoned the complainant’s mother on the day, in April 2002, that she had arrived at his house. She had only stayed there for the first two nights and had gone out with her friends on the third night.[99] She had returned at about 1.00am and had slept on the couch.
[99] T. p 371
He was asked, in examination in chief about the other allegations of discreditable conduct.
He said that he had driven her to the ‘whispering wall’ at Williamstown, stopping at the Kersbrook pine forest.
He was asked:
QShe says that on one occasion you took her to the woods and asked her if you could have sex with her. Did you ask her for sex then?
ANo, I said to her that ‘this is where we used to come in the old days, this is a bit of a make-out spot’. She said ‘what was that’, I said ‘well, where you used to have sex with your girlfriends’.[100]
QDid anything happen between the two of you while you were there?
ANo.
[100] T. p 375
When cross-examined he explained that he ‘stopped and pretended to do my shoelaces up because ‘K’ had said before ‘it’s pretty scary here’ … and then I snuck up behind and grabbed her and scared her, and that is when my left hand went around her stomach but my right hand came around the top of her, and that’s when I caught her on the left breast. That wasn’t intentional’.[101]
[101] T. p 441
As to the allegations in the spa the accused agreed that there were occasions that he would have been in the spa with ‘A’ and the complainant. He explained that ‘S’ would always have been nearby whether at a nearby table or in the kitchen.[102]
[102] T. p 367 (xn)
When asked about the complainant’s allegations of oral sex in the spa the accused said:
AI have no recollection of that at all.
QIf it had happened would you remember it?
AOf course I would.
Submissions of counsel
I do not propose to fully detail each of the submissions of counsel. While I merely set out a synopsis of some of the points they made, I have taken all of the submissions into account.
·The prosecution
Ms Giles, counsel for the prosecution, submitted that it could not be said that the accused had suffered any forensic disadvantage by the delay since 2002.
She submitted that in respect of almost each charged offence and indeed the uncharged acts, the accused ‘remembered’ an event at the time and gave an account different to that of the complainant.
She referred to his evidence as to count 2. Here, she submitted, the accused was able to remember picking up the complainant from Golden Grove; her shower; even the colour of her shirt, and her training bra. He could remember all this notwithstanding that nothing sexual had occurred, and there could have been nothing memorable about the event, to which he had deposed.

She submitted that in giving such an account, the accused had, in effect, conceded at the least that he did have the opportunity to commit the offences alleged by the complainant.
She submitted that I ought find beyond reasonable doubt that the complainant was both a reliable and patently honest witness. She had given her evidence in a straight forward manner without any embellishment. She was highly critical of the accused’s evidence. She submitted that the court ought find that the accused had given his evidence in a conscious and untruthful manner to minimise his behaviour. This she submitted started with the suggestion that there were only three occasions when he said he babysat the complainant and they were all in 1999.
She referred to the detail given by the accused including what the complainant had been wearing some fifteen years ago; where exactly on her leg he had rubbed his prickly chin; and how he had accidentally touched her on the breast at Kersbrook.
She submitted that when one takes into account the evidence of the complainant and her father, the evidence was overwhelming that the babysitting commenced in 1998 shortly after the complainant’s parents had separated. Ms Giles submitted that the inconsistencies, highlighted by the accused, in the complainant’s handwritten notes were explained by the circumstances whereby the complainant had merely started jotting notes down. Those notes were not intended to be an accurate account of the events. Ms Giles referred to the manner in which the complainant had given her evidence. Whenever her memory had been refreshed by questions in cross-examination, she immediately conceded the point. The complainant had properly conceded the inconsistencies exposed in her evidence as to count 7. Ms Giles submitted that any lack of memory or precision about some details ought be expected in light of the fifteen years which had passed since the alleged sexual offences.
She submitted the evidence of her complaint to Dr Stapleton ought be accepted as being consistent with her conduct. She submitted that any suggestion by the accused that he was not sexually attracted to the complainant was a lie.
She submitted that the complainant did not fabricate her evidence nor was it the consequence of any delusion. She made that submission in anticipation that counsel for the accused might make such a submission. I remind myself that it is the prosecution which bears the onus of establishing that the complainant gave a truthful and reliable account of the events. The accused could not possibly know what was going on in the mind of the complainant. The complainant’s evidence gains no credibility from the absence of a proved motive to lie.[103]
[103] R v Smith [2013] SASCFC 128 at [10]-[15]
She submitted the complainant ought to be accepted beyond reasonable doubt as a witness of truth and one who gave a reliable account of each of the alleged offences in counts 1 to 7.
She invited the court to return verdicts of guilty on each count.
·The accused
Counsel for the accused, Mr Tremaine, correctly submitted that it is not a question of which version I should prefer, but rather that I must be satisfied by the prosecution beyond reasonable doubt as to the credibility and reliability of the evidence of the complainant and that I must reject the defence case beyond reasonable doubt before I could find the accused guilty of the particular count that I was then considering. He submitted that the complainant was a demonstrably unreliable witness and one whose evidence was not corroborated in any respect.
He submitted that the fact that her brother ‘A’ could not ‘remember even the basic details of the alleged events in counts 6 and 7, and the alleged discreditable conduct in the spa, was telling. He submitted that this concern as to the reliability of the evidence of the complainant on any one count ought carry over to the other counts on the Information. He pointed to the inconsistencies in statements written by the complainant or given by her to the police, as contrasted with her evidence in court.
He referred to the alleged exposure by the accused of his penis in count 4, and pointed to the inconsistencies of the complainant as to him pulling his penis from his pants, in her earlier statement of December 2011.
He pointed, in relation to count 5, to the improbability that the accused would go into the complainant’s room and pull down her pyjama pants and knickers in circumstances where the complainant’s father was in the adjoining bedroom. He referred to the inconsistent statement made to Dr Stapleton to the effect that the accused was naked.
He then turned to count 6, and submitted as, highly implausible, the evidence of the complainant as to the alleged cunnilingus on the waterbed when, on her evidence, she was side by side with ‘A’ at the time.
As to count 7 he submitted that it was incredible that the complainant, so precise about all of the other alleged offences could not recall the location of the offence whether it be at West Beach, Goolwa or in her father’s backyard. Her evidence on this count had gained no support from her father nor her brother.
Mr Tremaine submitted that what made this evidence incredible was the combined effect of the complainant’s previous inconsistent statements about the accused having sex with her on that occasion, the vagueness of the evidence of ‘S’ on that topic; and that ‘A’ could not remember any such event albeit he was allegedly sleeping side by side with her. He submitted that this evidence reflected poorly on her credit and reliability such that it also impacted adversely upon her evidence on the other counts.
Mr Tremaine was critical of the evidence of the complainant’s father ‘S’. He submitted that his evidence that the accused had babysat ‘K’ on up to one hundred times reflected very poorly upon his credibility. He had previously told the police that the accused had only occasionally acted as babysitter.
He submitted that it defies belief that no one in the family, whether father, mother or brother could have been oblivious to some affect upon the complainant had this ongoing sexual conduct occurred over a number of years.
He referred to the complainant having previously overdosed because she was not getting enough attention from her parents. He submitted that this may well explain deluding herself as to any conduct by the accused. Even if I were to dismiss the suggested motive, I remind myself that the absence of any evidence for a complainant to give a false account does not bolster the prosecution case. I repeat that it is not for the accused to prove anything or provide a reason for the complainant to give a false account. It is for the prosecution to prove the charge I am then considering beyond reasonable doubt.
He submitted that the accused ought to be given credit for having entered the witness box and given his evidence.
It was submitted by Mr Tremaine that there was a significant forensic disadvantage to the accused arising because of the considerable delay until late November 2011, when some of the allegations were first brought to the attention of the police.[104]
[104] T. p 85
He submitted that the complainant ought not be accepted beyond reasonable doubt as to whether the charged acts or the uncharged acts had occurred. He invited the court to find the accused not guilty on each of the first seven counts.
Assessment of the evidence of witnesses other than the complainant and the accused
·The witness ‘A’
I find that ‘A’ was an honest witness but one who was simply unhelpful ultimately. It is entirely understandable that someone aged only 7 to 8 years at the time of the alleged offences would have no memory of events, which to him at the time, had no significance. He, like his parents, had not been aware of any sexual relationship between the complainant and the accused. He was placed in the stressful position of giving evidence against someone he perceived to be a friend on the distasteful topic of sexual conduct by him with his sister. As I have pointed out already he was unable to recall any occasion when the accused, the complainant and himself were in the spa or on the waterbed. There can, objectively, be no doubt, on the evidence of his father ‘S’, the complainant, and, indeed, the accused, that they had been together in the spa and on the waterbed on one occasion. Further, on the admission of the accused, there had been the sexual act with the complainant on the occasion in count 8.
·The witness ‘L’
‘L’ presented as a witness who was obviously concerned about her daughter. She had noticed nothing to indicate any suggestion of sexual abuse. She did not exhibit any bias as a witness. I found her to be both a truthful witness and reliable historian. As it was not until the complainant had returned to reside with her in about 2002 on a permanent basis, she was otherwise unable to assist the court, save in respect of the circumstances in which the complainant had run away from home; her health; and in respect of the event the subject of count 8 on the Information.
·The witness ‘S’
‘S’ presented as a witness who was extremely concerned for the welfare of the complainant. He had known the accused for most of his life. He had noticed nothing to indicate any suggestion of sexual abuse. He would have acted immediately if he thought that there had been any such conduct by the accused. It was plain that he was angry at the allegations which had become made by the complainant. By the time he had given his evidence, he had been aware that the accused had pleaded guilty to count 8 on the Information.
While, ultimately, the number of times that the accused babysat the complainant is not a significant issue in light of my findings hereafter, there is no doubt that ‘S’ did embellish the number of occasions that the accused had babysat the complainant. This may be explained by his reaction to the plea of guilty to count 8, and his reconstruction of events. However I find that in all other respects, he did not exhibit any bias as a witness and did his best to accurately recall events. I found him to be both a truthful witness and a reliable historian in all other respects. I accept entirely his evidence that the accused began babysitting the complainant in 1998 and not in 1999 as the accused had deposed.
I find beyond reasonable doubt that the accused babysat the complainant on several occasions – certainly many more than the three occasions deposed to by the accused, but much fewer than the 30 to 100 occasions deposed to by ‘S’.
Discussion
·Forensic Disadvantage
I have reflected upon the respective submissions of counsel as to whether the accused had suffered a significant forensic disadvantage by the delay of about 15 years since the first alleged offence in 1998.
On the accused’s own evidence, he had a remarkable memory of events at the time of the alleged offences, extending to the colour of a shirt worn by the complainant on an insignificant occasion 15 years ago. For the reasons that I will shortly explain, I have concluded that the accused was a most unimpressive witness, and I do not accept his evidence as to the events in issue.
What follows is that I infer that his memory must have been adversely affected by the delay. Common sense dictates such an inference. On occasions he complained about the delay.[105] At the very least the delay has placed him in a difficult position of being unable to investigate where he was working in 1997-1998, and when it was that he played indoor cricket. These investigations would have been open to him had there been a prompt complaint. Indeed the complainant’s own memory was affected, by delay. As to count 7, she could not recall whether the alleged camping incident had occurred at West Beach, as opened by the prosecution, or in the backyard of her father’s house or somewhere else.[106] In addition, her memory of some alleged sexual acts differed when making her initial complaint; or making statements to the police, as contrasted with her oral evidence at trial. These memory difficulties had an obvious adverse effect upon the accused being able to test the complainant’s evidence.
[105] T. P 405
[106] T. p 101 (xxn)
Accordingly I have taken this forensic disadvantage into account in considering whether or not the prosecution has proved its case in respect of each particular charge I am then considering beyond reasonable doubt.[107] I have accordingly approached the complainant’s evidence with caution, and have scrutinised it with great care.
·Corroboration
[107] R v C CA [2013] SASCFC 137 at [117]-[120]
It is trite that whether a piece of evidence is capable of amounting to corroboration must be determined having regard to the issues in the trial. In R v E, D J,[108]Kourakis J noted ‘that the corroborative nature of an item of evidence is not lost merely because an accused confesses and avoids it’. However mere presence or opportunity is not of itself enough for corroboration. In the circumstances of this case, and in particular the findings that I make as to count 7, I direct myself to approach the evidence of the complainant with caution and scrutinise that evidence with special care.
·The accused as a witness
[108] [2012] SASC FC 6. Evidence Act, SA s 34L(5)
It is convenient to detail my assessment of the accused as a witness before turning to that of the complainant.
While the accused had admitted the sexual offence in count 8, in circumstances where the only evidence against him was that of the complainant, and I accept that he ought be given credit for electing to give sworn evidence, I have concluded that he was a most unimpressive witness, one whose evidence lacked credibility, and in many respects was fanciful.
I am left in no doubt that he attempted to minimise any criminal conduct which may have occurred when the complainant had been aged from 12 to 15 years. He has embarked upon a deliberate course of ‘admit and avoid’, the evidence of the complainant.
I find that his ‘remarkable’ memory of events which included the miniscule detail of the colour of the complainant’s clothes; whether she was wearing a training bra; the attempt to frighten the complainant at Kersbrook, rather than invite her to engage in sex; and his ‘recollection’ of having stubble on his face in the waterbed, was all invented by him. I have no doubt that these ‘explanations’ were no more than a conscious attempt to minimise his conduct by admitting to a memory of a general event deposed to by the complainant, before putting an ‘innocent’ gloss upon it.
I find that he concocted a story that he did not babysit the complainant until 1999 as part of this attempt to minimise his conduct. I accept without reservation the evidence of the complainant and her father that the babysitting commenced in 1998 soon after the separation of the complainant’s parents and the complainant commencing to reside with her father.
I have no doubt that the accused was sexually attracted to the complainant from the start of their relationship in 1998.
I do not believe the accused’s account of what had occurred between them.
I have no doubt that the offence in count 8 occurred in April 2002, and that the accused had untruthfully asserted the date of July 2002, to place that offence closer to the complainant’s 17^th birthday.
I do however remind myself of my earlier direction that the rejection of the evidence of the accused does not mean that I must accept the evidence of the complainant.
The accused does not have to prove anything.
I repeat that before I could find the accused guilty of any particular count that I was separately considering, I must be satisfied that the complainant’s evidence on that charge is both credible and reliable, such that when considered as a whole, including the evidence of the accused, the particular charge has been proved beyond reasonable doubt by the prosecution.
·The complainant
I have scrutinised the complainant’s evidence with great care in light of the delay in bringing these allegations to the police; the criticisms by counsel for the accused as to the acknowledged previous inconsistent statements; the fact that no member of her family had been aware of any sexual abuse, notwithstanding the proximity of ‘S’ and ‘A’ to the alleged offences in counts 5, 6 and 7, and my previous direction as to corroboration.
I am satisfied beyond reasonable doubt that, in general, the complainant gave honest and reliable evidence in respect to each of the charged offences, and indeed the acts of discreditable conduct. While I have found that in respect of one of the counts that she was unable to adequately detail the circumstances of the alleged offending, this failure was not the consequence of any wont of honesty or reliability. Indeed her concessions in that respect confirmed her truthfulness as a witness.
I have considered her evidence in the context of criticisms made of her in cross-examination and in the address of counsel for the accused. Some of those criticisms were well founded.
There is no doubt that in respect of some of the counts, the complainant had made prior inconsistent statements in her notes and in statements made to the police.
As I have already directed myself that those prior inconsistent statements, depending upon their significance, may adversely impact upon the reliability and indeed the credibility of the complainant. I will touch upon them in discussing my conclusions in respect of each relevant count. I find that in most respects those ‘inconsistencies’ were trivial and related to peripheral matters.
I am satisfied that the complainant did not lie, to the court, nor otherwise fabricate or embellish any of her evidence. At all times, she presented as a witness of truth who recounted events from so long ago in a matter of fact manner.
The complainant was clearly a most compelling witness. She did not exhibit any particular ill will towards the accused, but presented as a person who had undergone changes in her life and had come to the realisation, as she grew older, that their relationship was wrong.
In respect of some of the allegations of discreditable conduct – in particular her evidence as to some ten alleged acts of penile/vaginal intercourse, I do not accept that that evidence ought be taken literally. The complainant was being asked questions about events that did not form part of the charged offences.
It was apparent from a proper reading of her evidence that penile/vaginal intercourse had occurred on a number of occasions, and that she was unable to remember or specially identify each such occasion. I do not accept that I ought find her evidence unreliable on these matters.
I will discuss her evidence in respect of my verdicts on each count hereafter, but save for the question of the reliability of her evidence on count 7, I am satisfied beyond reasonable doubt of her evidence as to the remaining counts.
I also accept her evidence beyond reasonable doubt as to the acts of discreditable conduct by the accused, including that at Kersbrook; in the spa; and the accused placing his finger in her vagina. Whether the latter occurred on the third night in April 2002 or at some other time is of no moment. The fact that she explained that she could not be sure of the date of the latter event is consistent with her honesty as a witness.
Discussion and verdict on each count
I have set out in these reasons, a synopsis of the evidence in respect of each count on the Information. I have also summarised the respective submissions of counsel. I remind myself that the evidence is admissible on all counts, and is available in considering the complainant’s credibility and reliability as a whole.[109]
[109] See R v Lapins [2007] SASC 281 at [52] and R v Brady [2014] SASCFC 7.
It is convenient to turn first to count 7 on the Information for reasons which will become clear.
·Count 7

The prosecution case was opened on the basis that this alleged offence had occurred at West Beach between January and March 1999. When she gave her evidence the complainant could not remember where it allegedly occurred whether it be at West Beach, at her father’s home or some where else. Her father had deposed to going camping on one occasion only namely at West Beach. He had only taken two tents, one of which had been given to the accused. While ‘S’ could not recall whom it was who slept in the only two tents which had been taken, I infer that ‘S’ must have slept in the three man tent with his son ‘A’ and the complainant. On the state of the evidence, I cannot be satisfied beyond reasonable doubt that the complainant and ‘A’ had slept alone in one of the tents.
I accept the evidence of ‘S’ that the camping trip had occurred at West Beach, and that the accused attended that trip. I disbelieve the accused when he alleged that it occurred at Goolwa.
When asked about the tents in his backyard on an occasion at Christmas, ‘S’ assumed that the complainant had not slept with her brother, but with her female cousins. Counsel for the prosecution referred to the principle in Wright v O’Sullivan,[110] that neither the date nor the location in the particulars is essential.
[110] (1998) SASR 307
It is however trite that in some circumstances the site of the alleged offence may be essential.[111]
[111] See Gigante v Hickson (2001) VSCA 4; R v W, GC (No2) [2007] 248 LSJS 228; DPP (Vic) v Kypri [2011] VSCA 257
In respect of this count the issue is not whether the alleged offence was properly pleaded, it is a question as to whether, on the state of the evidence, the prosecution has proved its case beyond reasonable doubt.
I infer from the evidence of ‘S’ that the offending conduct did not occur at West Beach, nor in the tent at Christmas time.
This of course leaves open the possibility that it occurred at another site or on another occasion.
I must take into account the forensic disadvantage to the accused when the site of the alleged offence could not be identified, given the long delay in this charge coming to light.
I have already referred to the previous inconsistent statement made by the complainant to the effect that the accused had been bold enough to engage in penile/vaginal sexual intercourse on that occasion.
I have no doubt that the complainant genuinely believes that the alleged offending in count 7 did occur. As I have made clear, I accept the evidence generally of the complainant, and have no doubt that she is an honest witness. It is possible that she may have confused this event with one of the events of penile/vaginal sexual intercourse which formed part of the acts of discreditable conduct. It would hardly be a surprise if this event did merge, in her mind, with those other matters over time.
The complainant conceded that her memory of this event may not be reliable but was certain that the act of the accused had occurred.
For these reasons I cannot be satisfied beyond reasonable as to count 7 on the Information.
Accordingly there will be a verdict of not guilty on count 7.
The consequence of my finding on count 7
Counsel for the accused submitted that any doubt as to any particular count ought impact adversely upon the complainant’s evidence on the remaining six counts. Obviously I am concerned that her evidence as to count 7 was in the circumstances unreliable, and that she had made an earlier statement to the effect that the accused had had sex with her on that occasion.
I do not however accept the submission of Mr Tremaine that because I did not accept the reliability of the complainant in respect of count 7 that I cannot be satisfied beyond reasonable doubt of any of the remaining six counts.
As I have already explained, the complainant was at all times an honest witness. I accept her evidence that the type of sexual act referred to in count 7 had indeed been committed by the accused. I have been unable to find beyond reasonable doubt that it occurred on the occasion referred to in count 7. I have not reached my verdict on count 7, because of any concern as to the honesty or general reliability of the complainant.
The remaining counts 1 – 6 generally
I will consider each of the remaining counts separately, conscious of the finding I have made as to the complainant’s evidence on count 7.
In general I accept that the complainant gave an honest and reliable account of each of the separate counts 1 – 6 on the Information. I accept the evidence of the complainant as to the acts of discreditable conduct including her evidence as to the accused’s conduct in the spa. I reject entirely the evidence of the accused as to the acts of discreditable conduct and as to counts 1 – 6 on the Information. I have no doubt that the accused was sexually attracted to the complainant from the time of the first offence in count 1.
I now turn to each of those counts separately.
Count 1
I am satisfied beyond reasonable doubt that the accused did indecently assault the complainant in the manner deposed to in her evidence. In this instance her evidence about the method he employed and the effect upon her had an obvious ring of truth to it. The complainant admitted that she was curious about sexual matters, and she had pursued the accused. I am satisfied, after taking into account any forensic disadvantage; the directions to which I have referred, and my concerns as to the finding in count 7; that this count has been proved beyond reasonable doubt. I have no doubt that it occurred in early 1998, in the manner deposed to by the complainant, namely that it occurred within weeks of the admitted discussion about a ‘boyfriend’ relationship with her.
I have rejected the evidence of the accused on this count beyond reasonable doubt.
I am, in consequence, satisfied that there is no reasonable possibility consistent with the innocence of the accused despite his sworn denial. There will be accordingly a verdict of guilty on this count 1.
Count 2
I have already referred to my rejection beyond reasonable doubt of the evidence of the accused as to his ‘recollection’ of an incident when he massaged the complainant after he had collected her from Golden Grove, and his denial of this count.
I am left in no doubt as to the truth and reliability of the evidence of the complainant on this count 2. Her description of the indecent assault by the accused, sucking on her nipples, some weeks after the indecent assault in count 1 was given without embellishment. In my view it was obviously both a truthful and a reliable account of what occurred. I have taken into account the abovementioned directions, any forensic disadvantage, and my concerns about the findings in count 7.
I am satisfied beyond reasonable doubt of the guilt of the accused in count 2. There is no reasonable possibility consistent with the innocence of the accused despite his sworn denial. There will accordingly be a verdict of guilty on this count 2.
Count 3
I have set out in detail the evidence relating to this count. The complainant was uncertain as to whether it had occurred on the same night as the indecent assault in count 2, or at a later time. When he gave his evidence as to the Golden Grove occasion about the time of count 2 the accused said that he had suggested that the complainant should lie on the floor to assist him to massage her shoulder.
I am satisfied that this evidence of the accused was false, and another attempt to minimise his offending conduct. I have no doubt that the complainant’s evidence as to count 3 was both honest and reliable. In reaching that conclusion I have taken into account any forensic disadvantage to the accused because of the delay, the above directions, and my expressed concerns with respect to count 7 on the Information. I reject the evidence of the accused on this count beyond reasonable doubt.
I am satisfied that there is no reasonable possibility consistent with the accused’s innocence despite his sworn denial of this count.
I am accordingly satisfied beyond reasonable doubt of each of the elements of the offence in count 3 and that the accused committed the offence of cunnilingus in the manner deposed to by the complainant.
I accordingly find the accused guilty of this count 3 on the Information, and direct a verdict of guilty on this count.
Count 4
I do not need to set out each element of this offence. I have again scrutinised with great care the evidence of the complainant in respect of this count for the reasons I have explained. I have had regard to my directions as to the use which I may make of the evidence of each of the other charged acts and the discreditable conduct when separately considering this count.
I have taken into account any forensic disadvantage to the accused, and have also had regard to my findings in respect of count 7.
I reject entirely the denial of the accused, and his evidence that he had only babysat the complainant on three occasions; and that none had occurred before 1999. I regard the previous inconsistent statement of the complainant as to the pulling of the penis from the accused’s pants as being trivial and of no significance. It was entirely explicable because of the circumstances which led to her ‘jotting’ down her notes at the time.
I am satisfied beyond reasonable doubt that the accused did procure the complainant to touch his penis in circumstances of gross indecency, in the manner to which she deposed. I am also satisfied beyond reasonable doubt that the complainant was then aged under 16 years.
I am satisfied that there is no reasonable possibility consistent with the accused’s innocence despite his sworn denial.
I accordingly direct a verdict of guilty on this count 4.
Count 5
I have scrutinised with great care the evidence of the complainant on this count separately. In particular I have had regard to the statement made by the complainant to Dr Stapleton about the accused being in the nude; the accused’s submissions as to the inherent improbability that the accused would commit such an offence in the complainant’s bedroom abutting that of her father; and the submitted merger of her allegations against her stepfather, of having entered her bedroom at her mother’s home.
In my opinion, while such an act is fraught with danger, this accused had been entrusted by ‘S’ to babysit his daughter. It was that trust that reduced the risk of being found out.
I reject the denial of the accused beyond reasonable doubt. In my opinion the complainant’s evidence on this count was specific and compelling. I reject also any suggestion that she was confused about an incident involving her stepfather. Her description of the accused’s attempt to remove her pants was given without embellishment. She clearly did not regard this offending behaviour as serious as the other counts. I am satisfied beyond reasonable doubt that her evidence on this count 5 was a truthful and reliable account of what the accused had done that night. I reach this conclusion notwithstanding the reference in Dr Stapleton’s notes to the nudity of the accused nor the submissions of counsel for the accused. I accept beyond reasonable doubt that this was one of a series of brazen acts by the accused which included the sexual act in the spa to which the accused had deposed. He had become confident that the complainant would never complain about his conduct to any member of her family.
Having again taken into account the above directions, and my findings in respect of count 7, I am satisfied that each of the elements of this count 5 has been proved beyond reasonable doubt. There is no reasonable possibility consistent with the innocence of the accused despite his sworn denial.
Accordingly I direct that a verdict of guilty on this count 5 be entered against the accused.
Count 6
I have also separately scrutinised the evidence of the complainant on this count with great care. I have done so for the reasons previously expressed, but also because of the criticisms of the complainant’s evidence on this count 6 by counsel for the accused.
I bear in mind the evidence of ‘A’ that he had no recollection of even being on the waterbed with the complainant nor the accused. I again accept that the accused must have been ‘brazen’ to have committed this offence with ‘A’ on the waterbed and ‘S’ being close by in the adjoining room.
Despite those submissions by counsel for the accused, and having taken into account the question of forensic disadvantage, I am satisfied beyond reasonable doubt as to the honesty and reliability of the evidence of the complainant in respect of this count. The detail of her account of ‘the game’ played by the accused, her brother and herself leading to the act of cunnilingus by the accused was specific and compelling. After having regard to abovementioned directions; my concerns about the findings in count 7; and the criticisms of her evidence by counsel for the accused I am satisfied that this count 6 has been proved beyond reasonable doubt. I reject the evidence of the accused beyond reasonable doubt save for his concession of being on the waterbed on that occasion and having engaged in a game with the complainant and ‘A’. In my opinion this was another example of the accused attempting to minimise his criminal conduct. There is no reasonable possibility consistent with the innocence of the accused despite his sworn denial.
I accordingly direct a verdict of guilty on count 6.
Count 8
The accused pleaded guilty to this count on arraignment. I am satisfied beyond reasonable doubt that the act the subject of this count occurred in the manner deposed by the complainant including that it occurred in the month of April 2002. I reject entirely the evidence of the accused that this offence had occurred at some later time in July 2002. I am satisfied that the accused was attempting to minimise his conduct by asserting a date closer to the complainant’s 17^th birthday.
Conclusion
I am satisfied beyond reasonable doubt that the prosecution has proved each and every element of each of counts 1, 2, 3, 4, 5 and 6 on the Information.
As I have explained I have found the accused not guilty of count 7 on the Information.
For the reasons I have explained I record the following verdicts.
Count 1     Guilty
Count 2     Guilty
Count 3     Guilty
Count 4     Guilty
Count 5     Guilty
Count 6     Guilty
Count 7     Not Guilty