R v Tesfamichael - [2020] SADC 54

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TESFAMICHAEL
Criminal Trial by Judge Alone
[2020] SADC 54
Reasons for the Verdict of Her Honour Judge S David
15 May 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Accused stepfather of the complainant – alleged to have maintained an unlawful sexual relationship from 2013 to 2018 – complainant aged almost 9 to 13 years during charged period – initial complaint to the assistant principal in June 2018 – accused gave evidence and denied the charge.
Verdict - not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 34M(4)(a) and s 34M(4)(b), referred to.

R v TESFAMICHAEL
[2020] SADC 54

Samuel Medhanie Tesfamichael (the accused) is charged with the offence of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the Criminal Law Consolidation Act, 1935. He is presented on Information dated 30 March 2020 as follows:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935.)
Particulars of Offence
Samuel Medhanie Tesfamichael, at Brooklyn Park, Elizabeth East and other places, between the 7^th day of August 2013 and the 6^th day of June 2018, maintained an unlawful sexual relationship with [HN], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [HN], namely:
(a)causing her to touch his penis on one or more occasions;
(b)inserting his penis into her vagina on more than one occasion;
(c)touching her breasts on one or more occasions;
(d)touching her genital area on one or more occasions;
(e)attempting to cause her to perform an act of fellatio on him on one occasion; and
(f)causing her to watch pornography on one or more occasions.
The accused pleaded not guilty to the charge and elected for a trial without a jury. I now publish reasons for the verdict I deliver.
Overview
The accused is the stepfather of HN. HN was born in Ethiopia on 16 September 2004. She arrived in Australia on a refugee visa on 8 August 2013. HN’s mother had been residing in Australia since 2011. Upon arriving in Australia, HN lived with her mother, TH, the accused and her three younger half-siblings. HN lived with the accused, TH and her family at Brooklyn Park and Elizabeth East. The accused’s daughter, KM emigrated to Australia in 2015 and from that time lived with the family at both homes.
The accused is alleged to have engaged in various sexual acts with HN from August 2013 when she was aged almost 9 years to mid-2018 when she was aged 13 years. The accused is alleged to have committed those sexual acts upon HN at her family homes in Brooklyn Park and Elizabeth East, and on one occasion in the accused’s motor vehicle when taking HN to school.
HN initially complained of the sexual offending to the assistant principal of her school on 6 June 2018. HN was interviewed by police on that day. The accused was arrested by police on the evening of 6 June 2018. On 29 June 2018, HN was medically examined by Dr Janine Tee who reported that there were no signs of a genital injury but did not exclude the reported allegations of sexual assault having occurred. HN was again interviewed by police on 3 July 2018.
At trial, the prosecution did not tender the police interviews of HN but called HN to give evidence. The prosecution case also consisted of evidence from KM, the investigating officers Detectives An and Sweetman, and a forensic paediatrician, Dr Tee. There was also evidence called from CS (HN’s friend and classmate) and members of the school staff as to the circumstances surrounding HN’s initial complaint.
There was a defence case. The accused gave evidence denying the charge and called TH and his son, AM to give evidence. The defence case was that the accused did not commit any of the alleged unlawful sexual acts upon HN; that HN’s evidence is inherently unlikely or contradicted by other evidence called as part of the prosecution and defence cases, and that HN has a motive to lie and fabricate the allegations, namely her purported wish to live independently or away from the home.
Elements of the offence
The prosecution must prove beyond reasonable doubt the following five legal elements or ingredients.
First, that the accused was an adult at the time of the alleged offending. An adult person is a person aged 18 years or older. The accused was born on 7 July 1971. There was no dispute that during the charged period from 7 August 2013 to 6 June 2018, the accused was 18 years or older, and thus an adult.
Second, that HN was a child at the time of the alleged offending. A child is a person who is aged 17 years or under. There was no dispute that HN was born on 16 September 2004 and that during the charged period she was aged from almost 9 years to 13 years, and thus a child.
Third, that there was a relationship (but not necessarily a sexual relationship) between the accused and HN during which the accused engaged in unlawful sexual acts. The accused is the stepfather of HN, having married her biological mother. The accused lived with HN during the charged period. There was no dispute as to this element of the offence.
Fourth, that there was an unlawful sexual relationship between the accused and HN. An unlawful sexual relationship is a relationship during which an adult engages in two or more unlawful sexual acts with, or towards, a child. The particularised unlawful sexual acts were alleged to have occurred on four separate occasions. On the prosecution case, the alleged sexual acts committed by the accused on HN constituted the offences of unlawful sexual intercourse with a person under the age of 17 years, attempted unlawful sexual intercourse, indecent assault and gross indecency with a person under the age of 16 years.
As to the two alleged acts of penile/vaginal sexual intercourse (on the first and fourth occasions), the offence of unlawful sexual intercourse is proved if the prosecution has established two elements. First, there must be an act of 'sexual intercourse’ which is legislatively defined to include inserting a penis into a person’s vagina, and inserting a penis into a person’s mouth. The second element of the offence of unlawful sexual intercourse is that at the time of the alleged act of sexual intercourse, HN was under the age of 17 years.
As to the attempted act of fellatio (on the third occasion), the offence of attempted unlawful sexual intercourse, the prosecution must prove that the accused intended to commit the completed crime of unlawful sexual intercourse with a person under 17; and that the accused in carrying out that intention, performed an act or acts which amounted to an attempt, or steps towards the commission of the crime which, if they had not been interrupted, either by the accused voluntarily desisting or by some other course, would have resulted in the commission of the completed crime.
As to the allegations of the accused touching HN's vagina and breasts (on the first and third occasions) and causing HN to touch his penis (on the fifth occasion), the prosecution contended that each alleged act constituted an indecent assault. An indecent assault is made up of three elements. First, that the accused assaulted HN. An assault is the intentional and unlawful application of force to another. Next, that the alleged touching was done intentionally as opposed to accidentally and without lawful excuse. In this case there was no evidence of accidental touching or a lawful excuse. Finally, the prosecution must prove that the touching was accompanied by, or occurred in, circumstances of indecency with a sexual connotation.
As to the allegation that the accused showed HN pornography on his mobile telephone whilst they were seated in his motor vehicle before he dropped her at school (on the fifth occasion), that alleged conduct is said to constitute the offence of gross indecency with a person under 16 years. To prove this offence, the prosecution must establish first, that the relevant act was done with, or, in the presence of HN. HN’s consent or absence of consent is immaterial. Second, that HN was under the age of 16 years at the time of the accused showing her the pornographic videos. Third, the act must have been indecent. Indecency means some form of sexual conduct or activity which ought to be regarded as indecent having regard to HN’s age and the nature and circumstances of the conduct or activity, and to contemporary standards of morality and decency. Fourth, the indecency must be gross. It must be something more than minor or trivial indecency.
There was no dispute in this trial that should the court be satisfied that the accused committed two or more of the alleged sexual acts, each act would constitute an offence and unlawful sexual act. The dispute in this trial was whether the prosecution had proved that the accused committed any sexual act on, or with, HN.
Returning to the charged offence, the fifth element the prosecution must prove is that the accused maintained an unlawful sexual relationship with HN. That is, the prosecution must prove that there was an ongoing relationship of a sexual nature between the accused and HN. In other words, that the accused carried on, kept up, or continued a sexual relationship with HN. In this sense, there must be proof of continuity of sexual conduct. Again, the issue in dispute in this trial was whether the prosecution had proved that two or more of the alleged sexual acts occurred at all. Accordingly, it follows that this fifth element of the offence was also very much in dispute.
Legal Directions
I have applied the following principles in reaching my verdict.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charges lies wholly upon the prosecution. The accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of the offence, the prosecution is required to have proved beyond reasonable doubt each element of the charge. In these reasons, if the words ‘proved’, ‘established’, or ‘satisfied’ are used, this means to a standard of beyond reasonable doubt. If there is an explanation consistent with the innocence of the accused, or there is uncertainty as to where the truth lies, then the accused must be found not guilty.
The accused elected to give evidence. The accused was not obliged to do so. He had the right to remain silent in answer to the charge leaving it to the prosecution to prove each of the legal elements of the charge. As the accused has given evidence in his defence, and called witnesses as part of his case, that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. It is for the prosecution to prove the accused’s guilt. He does not have to prove his innocence. Subject to that, the accused’s evidence is to be assessed like the evidence of any other witness in this trial.
Without objection, special arrangements were put in place for HN in giving her evidence. HN gave evidence by way of audio-visual link and was accompanied by a court companion. The court was closed during her evidence. I have not drawn any adverse inference against the accused because of such arrangements, nor have those arrangements caused me to place any extra or undue weight on HN’s evidence.
The evidence of HN’s ‘initial complaint’ to her assistant school principal, Damien Kelly, is potentially relevant to show how HN’s sexual allegations first came to light, and as evidence of the degree of consistency of conduct by HN.[1] The evidence of HN’s initial complaint is not admitted as evidence of the truth of her statements that the accused engaged in sexual acts with her.[2] There may be varied reasons why an alleged victim of a sexual offence makes a complaint about sexual offending at a time to a certain person. HN gave evidence that after the first alleged incident (penile/vaginal sexual intercourse at Brooklyn Park) she wanted to talk to her mother but she did not know how to have the conversation.[3] HN also said that after the fourth alleged incident (penile/vaginal sexual intercourse at Elizabeth East) she did not tell anyone what had occurred because she did not know what to say or how to say it, and she was not ready to say anything to anyone.[4]
[1]    Evidence Act 1929 (SA), s 34M(4)(a).
[2]    Evidence Act 1929 (SA), s 34M(4)(b).
[3]    T36.
[4]    T46.
On the defence case, HN had a motive to lie and fabricate the allegations against the accused because she wanted to live independently and leave the family home. HN denied that she was so motivated and denied that she lied. There was also a body of evidence led by the prosecution to rebut the suggested motive for HN to fabricate the allegations, which is referred to later in these reasons. The accused does not have to prove why HN may have lied or fabricated the allegations against the accused. The absence or rejection of a motive to lie on the part of HN does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason or, indeed, for hidden reasons. It is not for the accused to put forward, or to prove a motive for HN to lie. It is for the prosecution to establish beyond reasonable doubt that HN is truthful in her evidence in court and to prove the charge.
The accused gave evidence that he had not been in trouble with the police prior to this charge offence being laid against him. That evidence of the accused’s good character is relevant for two purposes. First, it is relevant to the question of whether the accused committed the offence and is a factor affecting the likelihood of the accused having committed the offence. Second, the accused's good character is relevant in assessing the credibility of the accused’s evidence at trial.
The contentious issue at trial was whether the prosecution has proved that the accused committed two or more of the alleged unlawful sexual acts against HN, and maintained an unlawful sexual relationship with HN. I now turn to the evidence led in respect of each of the alleged unlawful sexual acts.
First occasion – Penile/vaginal sexual intercourse in the living room at Brooklyn Park
HN said she was 10 years old and living at Brooklyn Park the first time her stepfather made her feel ‘uncomfortable’.[5] It was an agreed fact that the accused and TH began renting a unit at Brooklyn Park on 5 March 2012. HN said the first incident occurred in the living room when she was getting ready to go to bed. Her siblings were sleeping and her mother was out.[6] The accused was in the living room and called HN over to get him a cup of water.[7] When HN tried to give the accused the cup of water, the accused grabbed HN by her left hand and placed her on her back on the living room floor.[8] HN said the accused was on his knees facing her.[9] HN said she was wearing a pyjama dress at the time and she did not have a bra on, but was wearing underwear.[10]
[5]    T34.
[6]    T34.
[7]    T34.
[8]    T34.
[9]    T34-35.
[10] T35.
HN said the accused started touching her vagina up and down over her underwear.[11] The accused removed her underwear from her left leg. Her underwear was still on her right leg.[12] The accused unzipped his pants and took out his penis.[13] HN said she faced the other way because she did not know what to do.[14] The accused put his penis in her vagina and was on top of her moving up and down.[15] HN said it hurt and she did not like it.[16] She said she yelled once but did not say anything.[17] She said the accused did not say anything to her.[18]
[11] T35.
[12] T35.
[13] T35.
[14] T35-36.
[15] T36.
[16] T36.
[17] T36.
[18] T36.
HN said after the accused stopped, she ran into the bathroom and into the shower and cried. She noticed that she was bleeding from her vagina.[19] She said she did not get her period until she was 12 years old.[20] HN said she put toilet paper tissues in between her underwear just in case it kept bleeding and she then went to sleep.[21]
[19] T36.
[20] T36.
[21] T36.
In cross-examination, HN agreed she said nothing in her police interviews about the alleged sexual incident on the living room floor (the first occasion).[22] HN agreed that she had given a statement to police on 26 March 2020, in which she said: ‘He put his penis inside my vagina, I remember screaming as he held both my arms down while I was on my back’.[23] In court, HN said that she was screaming but not loud enough for her siblings to hear or wake them up.[24]
Second occasion - naked in the living room at Brooklyn Park
[22] T123; 125.
[23] T63-64.
[24] T64.
HN described another occasion involving the accused which she said occurred when she was 10 years old, and at a time after the occasion when the accused had penile/vaginal sexual intercourse with her. HN said she was in the living room, at night time, and her siblings were asleep.[25] HN said she did not know where her mother was at the time.[26] Her step-sister KM had not yet moved to Adelaide.[27] The accused was on the couch.[28] She was naked but she cannot remember how her pyjamas came to be off.[29] The accused was not wearing a shirt.[30] The next thing she can remember was walking out of the living room carrying her pyjamas.[31] HN said she cannot remember anything else about this alleged incident.[32]
[25] T38.
[26] T38-39.
[27] T39.
[28] T39.
[29] T39.
[30] T39.
[31] T39.
[32] T39-40.
The evidence of HN and the accused being naked or unclothed in the lounge room was relevant on the prosecution case to place the particularised unlawful sexual acts in their complete context and to allow HN to give the full narrative of her relationship with the accused. On the prosecution case, the evidence is only relevant to provide the context in which the other alleged unlawful sexual acts occurred and may only be used for that purpose if I first accept that the alleged incident occurred. If I am so satisfied, it would still be impermissible to reason that the accused is a ‘bad’ man and for that reason a person more likely to have committed the particularised unlawful sexual acts and the charged offence, or to substitute this alleged incident for one of the particularised unlawful sexual acts. I have not reasoned in that way.
In cross-examination, HN agreed that in a statement to police given on 26 March 2020 she said:
Another incident I can vaguely recall is when I was living at the Brooklyn Park address. Mum had gone to Melbourne for a church meeting. I remember wearing my pyjamas which were long-sleeved shirt and long pants, and was in the kitchen before being in the living room with my stepfather. He was lying on the couch watching television before he took off all my clothes and his clothes. I don't remember if anything actually took place on this occasion. I remember walking out of the living room back to my room naked holding my clothes.[33]
[33] T71.
In cross examination, HN agreed that she could not now recall saying that her mother was in Melbourne for a church meeting on the second occasion and she could not now recall the accused taking off her clothes, or the accused taking off his clothes.[34]
Third occasion – attempted fellatio in HN’s bedroom at Elizabeth East
[34] T72.

HN said that whilst living at Elizabeth East there was another incident involving the accused.[35] It was an agreed fact that the accused and his wife purchased a property at Elizabeth East on 24 November 2016.[36] HN said her mother and stepsister had gone to Melbourne for ‘this church thing that happens every two years’ and she was left at home with the accused and her three siblings.[37] HN said she was 12 years old at the time.[38]
[35] T40.
[36] T214, Exhibit P5.
[37] T40.
[38] T40.
HN said she was in her bedroom which she shared with KM.[39] The door was closed but it was not locked.[40] She said she was in her bed when the accused came into the room.[41] It was dark and she could not see anything.[42] HN said she was laying on her back.[43] The accused turned his body to the side where her head was and he used his hand to pull her head toward his body.[44] The accused had one of his hands at the back of her head, and she could feel his penis touching her lips.[45] HN closed her mouth and refused to open it.[46] She said the accused’s penis felt slippery – like ‘putting lip gloss onto your lips’.[47] HN said the accused did not say anything to her and she did not say anything to the accused, although she remembered making a sound saying ‘no’ while her mouth was closed and shaking her head sideways.[48] HN would not open her mouth and the accused left the room.[49] HN remained in her bed and cried.[50]
[39] T40.
[40] T42.
[41] T40-41.
[42] T41.
[43] T41.
[44] T42.
[45] T41.
[46] T41.
[47] T42.
[48] T42.
[49] T41.
[50] T42.
HN said she thought she was attending Cowandilla Primary School at the time of this incident – but she was not ‘100% sure’.[51] It was an agreed fact that HN was enrolled in Cowandilla Primary School in August 2013 and remained at the school until she completed year 6 at the end of 2016.[52]
[51] T43.
[52] T214, Exhibit P5.
In cross examination, HN said she could not now remember where her mother and KN were at the time of this incident but they were not in the house.[53] HN said they were not in fact in Melbourne.[54]
[53] T68-69; 72.
[54] T68.
Fourth occasion - Penile/vaginal sexual intercourse in HN’s bedroom at Elizabeth East
HN gave evidence about another incident involving the accused which occurred at Elizabeth East. HN said she was 12 years old at the time.[55] On this evening, the accused returned home from work and she gave him some water and food.[56] She did not know where her mother or KM were at the time.[57] However, she thought KM may have gone to see friends or been attending a bible class. HN said her siblings were in the other room sleeping.[58]
[55] T46.
[56] T44.
[57] T44.
[58] T44.
HN said she was in her bedroom and getting ready to go to bed.[59] The bedroom door was not ‘fully’ closed.[60] HN was laying on her bed on her back.[61] HN said the accused walked in and started touching HN’s vagina over her underwear.[62] The accused started touching her breasts over her bra – ‘like a push press’.[63] The accused took off HN’s underwear and pyjama pants. He took off one leg and left the other leg on.[64] HN said it was dark and the accused used his phone flashlight to see.[65] The accused unzipped his pants which were pulled down to his ankles and took out his penis.[66] HN said she was shaking her head saying ‘no’.[67] The accused then placed his penis in her vagina and was on top of her, pushing up and down.[68] HN said she and the accused did not say anything to each other.[69] HN said the accused got a tissue from his pants pocket, held it against his penis, and walked out of the room.[70]
[59] T44.
[60] T44
[61] T44.
[62] T44.
[63] T44.
[64] T44.
[65] T44.
[66] T44.
[67] T44.
[68] T45.
[69] T45.
[70] T45.
HN said that after the accused left the room, she went to the shower and cried.[71] After she got out of the shower, she acted like nothing had happened and went to bed.[72]
[71] T45.
[72] T45.
In cross-examination, HN said that her mother and KM were in Melbourne on this evening.[73] HN agreed that she thought to shout out to her siblings, but she was scared and nervous.[74] HN agreed that she told police in a statement taken on 26 March 2020:
I told him to get out loudly but in a calm way. He covered my mouth with one of his hands and continued to touch me with the other. I couldn’t make any noise after he covered my mouth.[75]
[73] T78-79.
[74] T137.
[75] T138.
HN explained that she could not now remember exactly when that happened, and that it might have occurred during another incident.[76]
[76] T138-139.
As to ejaculation, HN agreed that in her second police interview she said that she had observed a substance whilst she was in the shower.[77] She described it as being like ‘when you get burnt on your finger or something and the next day – it’s peeled over and the next day it’s like has something white on – over it’.[78] HN agreed that she did not mention anything about observing such a substance whilst in the shower during her first interview, nor, in her evidence in chief.[79]
Fifth occasion – the accused showing HN pornography in his vehicle near her school
[77] T142.
[78] T142.
[79] T142.
HN said that there was another incident involving the accused when she was in year 8 at Thomas More College.[80] It was an agreed fact that HN was in year 8 at Thomas More College in 2018.[81] HN said that the accused had dropped her younger siblings at their school first, and then went to drop her off at school.[82] The accused stopped the car before reaching the school.[83] She was sitting in the front passenger seat of the car.[84] HN said the accused took his mobile telephone out of his pocket and showed her a video.[85] HN said the video was of a young looking woman and a man, and the woman had the man’s penis in her mouth and in her vagina.[86] HN said the accused did not say anything to her, but he unzipped his pants, took out his penis and put her hand on his penis whilst showing her the video.[87] HN said she tried to move and get out of the car, but the accused held her hand and tried to move her hand up and down.[88] HN said the accused’s penis was ‘really hard and slippery’.[89]
[80] T46.
[81] T214, Exhibit P5.
[82] T49.
[83] T46.
[84] T49.
[85] T46.
[86] T47.
[87] T47.
[88] T47.
[89] T47.
HN said she got out of the car, grabbed her bag and said: ‘no I’ll walk from here to school’.[90] When asked how she felt after it happened, HN said she felt disgusted, sick and upset.[91]
[90] T47.
[91] T47.
In cross-examination, HN said that there were no other occasions when the accused showed her pornography.[92] HN agreed that in the first police interview[93] she said: ‘Like he’s tried to make me watch those (pornographic videos) and he managed to sometimes. I just walk away and say I have something to do’.[94] HN disagreed that in so saying she suggested to Constable Sweetman that there were multiple times the accused had shown her pornography.[95]
[92] T85.
[93] T 106-107.
[94] T106-107.
[95] T110.
HN agreed that in her first police interview she also said: ‘Sometimes he tries to grab my hand and make me move it’[96] and later she said: ‘I sometimes – I say to him students will be here right now or maybe teachers are here’.[97] HN disagreed that in giving that answer she suggested to Constable Sweetman that there were multiple times the accused had her touch his penis in the car on the way to school.[98] HN agreed that in the first police interview, she recounted an occasion which occurred at home during which the accused tried to get her to touch his penis.[99] However, HN said she could not now remember that incident.[100]
[96] T109.
[97] T109-110.
[98] T110.
[99] T111.
[100] T111.
HN agreed that in the second police interview she said: ‘Sometimes when he drops me off at school he makes me watch videos or makes me touch his penis, and when I get out of the car I will start crying and people, like, ask and I’d say “nothing”’.[101] In court, HN maintained that she could only remember one occasion when the accused showed her pornography, that is, on the fifth occasion.[102]
[101] T144.
[102] T144.
As to ejaculation, HN agreed that in the first police interview, Constable Sweetman asked her whether anything had come out of the accused’s penis during this alleged incident in the car, and she replied: ‘I don’t know’.[103] HN said in court that she had in fact seen something come out of the accused’s penis.[104] She explained that she was not comfortable or confident talking to Constable Sweetman about it, and at that time, she did not know what it was nor how to describe it.[105]
[103] T116.
[104] T116-117.
[105] T117.
HN said she never used the accused’s mobile telephone.[106] HN denied that she showed the accused how to connect to YouTube, and said that she did not know how to.[107] HN disagreed that she had previously borrowed the accused’s mobile telephone on which she would watch movies.[108] HN rejected the suggestion that she wanted the police (and the court) to think there was no chance she could have found out anything about sex online.[109]
[106] T82; 99.
[107] T82-83; 98.
[108] T99-100.
[109] T119-120.
HN gave evidence that the five occasions, outlined above, were the only occasions she could recall of sexual or indecent interaction between herself and the accused.[110] However, in cross-examination HN agreed that in her first police interview she said that the accused would sometimes make her lay on the bed, or make her stand on the bed and that the accused would have sex with her in different positions – ‘sometimes behind me, sometimes in front of me’.[111] HN explained that she may have been referring to another occasion that she could no longer recall[112] but agreed she could not remember any occasions where the accused had sexual intercourse with her whilst standing up.[113] HN also said in her first police interview that she thought there was an occasion when the accused took a photo of her vagina[114] but she could not now recall when or where it happened, or what school she was attending at the time.[115] By way of explanation, HN said she may have remembered more during the police interviews than she does now.[116]
[110] T76-77, 79, 85.
[111] T114.
[112] T114-115.
[113] T115.
[114] T113.
[115] T113-114.
[116] T115.
KM
KM gave evidence as part of the prosecution case. KM lived with the accused, HN, TH and her half siblings A, D and S at Brooklyn Park from 2015, and at Elizabeth East from November 2016 to March 2018.[117] KM and HN shared a bedroom at each house. At Brooklyn Park, KM and HN shared a bed, and at Elizabeth East, they each had single beds.[118]
[117] T168.
[118] T167-168.
KM said TH, her stepmother, was usually home ‘just looking after the kids’.[119] The family went to church on Saturdays, and KM said she would attend bible study during the day on Sundays.[120]
[119] T174.
[120] T174.
KM gave evidence that she travelled to Melbourne with her stepmother once for ‘a religion thing’[121] at the end of 2015 or the beginning of 2016.[122] They flew to Melbourne on an aeroplane and they were there for two days.[123] KM said that her stepmother went to Melbourne again in 2017 for a church celebration with H who was born on 1 July 2017.[124] They were away for two days.[125] KM said that she and the accused, HN and her siblings stayed home whilst her stepmother was away.[126]
[121] T174-175.
[122] T175.
[123] T175.
[124] T176.
[125] T176.
[126] T176.
In cross-examination, KM said that TH never had a job nor worked at an Ethiopian restaurant and TH did not go out at night time.[127] KM said her stepmother was home every night when she lived at Elizabeth East.[128] KM also gave evidence that HN would use the accused’s mobile telephone to do her homework.[129]
[127] T179.
[128] T181.
[129] T182-183.
Initial Complaint
HN said that when she was in year 8 and during a religious education lesson, she asked her teacher, Anne Glamuzina, questions whilst the topic of the ten commandments was being discussed in class. HN said that during the class she asked questions such as: ‘what if a child was being abused by her stepdad?’ and ‘what would that child do or how would she get out of that problem?’[130] HN said she could not remember the exact words she used. Her friend CS was sitting next to her at the time.[131]
[130] T49-50.
[131] T50.
Anne Glamuzina gave evidence that she was teaching the religious education class and was trying to explain the meaning of the word ‘covet’ in the context of the commandment ‘Thou shalt not covet thy neighbour’s wife’.[132] HN raised her hand and said: ‘I know this girl and her stepfather-’[133] whereupon CS looked at HN and there was non-verbal communication between them.[134] Anne Glamuzina gave evidence that CS shook her head, and HN looked down and stopped speaking.[135] After class, Anne Glamuzina spoke to the year level coordinator, Brad Newton, and explained what had happened in class.[136] Anne Glamuzina said that she advised Brad Newton that somebody needed to speak to CS and HN to find out what it meant.[137]
[132] T199.
[133] T199.
[134] T199.
[135] T199.
[136] T199.
[137] T199.
HN said that after class she told CS that HN’s questions in class related to her, HN.[138] HN said she did not tell CS exactly what was happening to her or who was doing it.[139] CS gave evidence that after class, while they were walking to their lockers, HN told her that this had been happening to her.[140]
[138] T50.
[139] T50.
[140] T191.
Brad Newton gave evidence that he asked CS if she knew whether anything was happening to HN.[141] CS said that she told Brad Newton what HN had said in religion class and what HN had told her after class.[142] Brad Newton gave evidence that, on the morning of Tuesday 5 June 2018, Anne Glamuzina advised him that something had happened in relation to HN.[143] He said he spoke to HN later that morning.[144]
[141] T192.
[142] T192.
[143] T202.
[144] T203.
HN gave evidence that the day after the religious education class, Brad Newton spoke with her.[145] He asked her if she was okay or if anything was happening. HN said Brad Newton told her that Anne Glamuzina had told him about the questions she was asking in class.[146] HN said she told Brad Newton that nothing was happening and she was okay.[147] Brad Newton gave evidence that he alerted his manager, Damien Kelly, and the school counsellor, Ms Belperio.[148]
[145] T50-51.
[146] T51.
[147] T51.
[148] T204.
HN said she then spoke to Damien Kelly. Damien Kelly asked her if she was okay or if anything was happening, and HN continued to say nothing happened and that she was okay.[149] Damien Kelly told her that CS had said something to him. HN said she then told Damien Kelly ‘everything’.[150] HN said she was uncomfortable talking to a male teacher.[151] She could not remember exactly what she told Damien Kelly, but she remembered saying that her stepfather was doing the things she had asked about in religious education.[152] HN said that Damien Kelly called the police but she did not ask him to do so.[153]
[149] T51.
[150] T51.
[151] T51.
[152] T51-52.
[153] T52.
Damien Kelly gave evidence that he was advised by Brad Newton that HN had disclosed something in the classroom.[154] Damien Kelly said he subsequently met with HN and CS mid-morning on Wednesday, 6 June 2018.[155] Damien Kelly said that when HN walked in and saw that CS was in the room, she appeared angry and frustrated.[156] Damien Kelly said that he explained to HN that if something had happened to her, he was legally required to report it, and stressed the seriousness of the situation and that she needed to tell the truth.[157] Damien Kelly said that HN told him that she had had sex with her stepfather.[158] She said there was penetration in her vagina and that she had performed oral sex.[159] HN said that it had been happening for a while, and that the last time anything sexual had taken place was ‘about a month ago’.[160] Damien Kelly said that he then informed the principal of HN’s disclosure and they contacted the police.[161]
[154] T207.
[155] T206-207.
[156] T207.
[157] T207.
[158] T207.
[159] T207-208.
[160] T208.
[161] T208.
HN’s conversation with Damien Kelly is relied upon by the prosecution as evidence of initial complaint by HN. The conversations elicited from various witnesses from Thomas More College, without objection, were relevant only to explain the circumstances in which the initial complaint came to be made by HN and not for the truth of anything said during those conversations.
Police investigation
On the evening of 6 June 2018, the accused attended at the Elizabeth Police Station with TH and their children to report HN missing.[162] The accused was then arrested.[163] Detective Sweetman reviewed the accused’s Apple iPhone. The internet search history on his mobile telephone recorded pornographic websites.[164] Detective Sweetman took five photographs of the search history.[165] Detective Sweetman said the pornographic websites were shown to have been accessed on Monday 4 June 2018, but he was unable to see the time that the websites were accessed.[166] The Apple iPhone was then returned to the accused.[167] It was never submitted to the electronic crime section of South Australia Police.[168]
[162] T232.
[163] T216.
[164] T217.
[165] Exhibit P6, T217.
[166] T219.
[167] T220.
[168] T220.
In cross-examination, Detective Sweetman agreed the accused entered the PIN code for the police to access his mobile telephone.[169] Detective Sweetman agreed that during his review of the accused’s mobile telephone he was also looking for a photograph of HN’s vagina but he did not find one.[170]
[169] T222.
[170] T226.
Detective Sweetman served an interim intervention order on the accused on Thursday, 7 June 2018.[171] Detective An then attended HN’s home address at Elizabeth East and provided TH with a copy of the order.[172] Detective An said he explained to TH the effect of the order.[173] The following day, Detective An picked HN up from Thomas More College and took her home.[174] On their arrival, TH said she did not want HN to stay at the home.[175] Detective An organised emergency accommodation for HN.[176]
[171] Exhibit P7, T228.
[172] T228.
[173] T228.
[174] T228.
[175] T228-229.
[176] T228-229.
On 26 February 2020, Detective An spoke with TH at her home about providing a statement to the police.[177] Detective An gave evidence that TH said she not want to speak to the police about the matter.[178] KM was not home at the time but she subsequently provided a statement to police.[179]
[177] T229.
[178] T229.
[179] T230.
Medical examination
Dr Tee medically assessed HN on 29 June 2018.[180] Dr Tee conducted an interview with HN to guide her forensic examination of HN.[181] Dr Tee then conducted an intimate forensic examination of HN which did not reveal any signs of injury to the genital tissues.[182]
[180] T237-238.
[181] T238.
[182] T239.
As to whether you would expect to see any injury after penile-vaginal intercourse, Dr Tee said there were several variables including: a person’s age at the time of sexual intercourse, whether a person has sustained an injury during the penetrative act, and the time which has elapsed between the date of penetration and examination.[183] When asked how long it would usually take for an injury to heal, Dr Tee said it would depend on the nature of the injury.[184] She explained that some forms of injury heal over one or two days and others might take several days to weeks to heal.[185] Dr Tee agreed that in most cases an injury would have healed after four to six months, however, sometimes there may be residual findings from a previous injury.[186]
[183] T239.
[184] T239.
[185] T239.
[186] T239.
Dr Tee said that she would expect a pre-pubertal female to sustain an injury and bleeding after sexual intercourse, particularly to the hymen, based on the mechanical size differences.[187] However, Dr Tee would not normally expect to see an injury to the hymen years later, although occasionally residual defects of such an injury can be seen.[188] When asked how common it is to see such a residual defect, Dr Tee said it was less common than a normal examination.[189]
[187] T240.
[188] T240.
[189] T240.

Dr Tee agreed that after her examination of HN, she was unable to say, one way or another, whether sexual intercourse had occurred.[190] However, Dr Tee considered it more likely that she would not see an injury to the hymen, than there be such a residual defect, if penetration had occurred three or four years prior to the examination.[191]
[190] T240.
[191] T241.
In cross-examination, Dr Tee agreed that HN reported that there was bleeding on at least ten occasions of sexual intercourse[192] and that it hurt every time but it did not bleed every time.[193] Dr Tee agreed that HN reported incidents of both digital and penile penetration.[194]
[192] T243-244.
[193] T245.
[194] T245.
Defence case
The accused gave evidence as part of the defence case during which he denied the alleged offending.[195] The accused said he had never been in trouble with the police before these allegations were made against him.[196]
[195] T271-272.
[196] T266.
The accused said that he met his wife, TH whilst living in Sudan.[197] At that time, HN was living with her grandparents in a village in Ethiopia.[198] The accused and TH married in Sudan where they had three children together – A, D and S.[199] The accused, TH and their children left Sudan in November 2011 and moved as a family to Australia. Whilst living in Australia, the accused and TH had two more children – H in July 2017, and Z in February 2019.[200] The family lived in Dover Gardens for about three months[201] before moving to Brooklyn Park in 2012.[202] HN arrived in Australia in 2013. HN shared a bedroom with A and D.[203] HN slept in her own bed, and A and D slept in a bunk bed.[204] S slept in the accused’s and TH’s bedroom.[205] KM arrived in Australia in 2015.[206] HN and KM then shared a bed at the Brooklyn Park home.
[197] T253.
[198] T253-254.
[199] T254.
[200] T254.
[201] T254.
[202] T254.
[203] T256.
[204] T257.
[205] T257.
[206] T256.
The accused said he was unemployed whilst living at Brooklyn Park, although he did volunteer work as a gardener for about six months.[207] He would start at 8:00 am and finish at 4:00 pm.[208] The accused also studied English.[209] The accused’s study timetable varied – sometimes he would finish at 1:00 pm, and sometimes he would finish at 3:00 pm.[210] He would pick the children up from school if he finished early.[211] The accused said TH never worked in an Ethiopian restaurant whilst they were living in Brooklyn Park.[212] He said TH was at home at night because she needed to stay with the children[213] but would occasionally go out at night if someone was sick or had passed away.[214] On those occasions, either the accused or KM would look after the children.[215] He said KM did not go out at night.[216]
[207] T260.
[208] T261.
[209] T257.
[210] T261.
[211] T261.
[212] T263.
[213] T263.
[214] T266-267.
[215] T267.
[216] T267.
The accused and his family moved to Elizabeth East on 24 November 2016.[217] The accused then worked at a supermarket collecting trolleys.[218] The accused’s hours varied. Sometimes he would start at 11:00 am, and other times he started after 12:00 pm.[219] Sometimes he would get home around 4:00 pm – 5:00 pm, and sometimes he got home as late as 7:00 pm.[220] TH would pick the children up from school.[221]
[217] T214, Exhibit P5.
[218] T257.
[219] T261.
[220] T261.
[221] T261-262.
The accused said there were three bedrooms in the Elizabeth East house. KM and HN shared a bedroom and A, D and S shared a bedroom. The accused and TH slept in the third bedroom.[222]
[222] T257-258.
The accused said that when HN arrived in Australia, she started school at Cowandilla Primary School.[223] The accused’s younger children also went to school at Cowandilla Primary School.[224] The children walked to school because they lived nearby.[225] HN attended Cowandilla Primary School until 2016.[226] HN started school at St Mary Magdalene in 2017.[227] The accused’s younger children also went to school at St Mary Magdalene.[228] The accused drove the children to school.[229] By this time, KM was attending Thebarton Senior College.[230] The accused would drop KM at the train station so that KM could catch a train into the city, and then take a bus to Thebarton.[231]
[223] T258.
[224] T258.
[225] T258.
[226] T258.
[227] T258.
[228] T258.
[229] T258.
[230] T259.
[231] T259.
HN started high school at Thomas More College in 2018.[232] The accused said he would drop HN at Thomas More College, and then he would drop the younger children to school at St Mary Magdalene.[233] He said this was because he could not leave the younger children at school on their own.[234] The accused said TH would sometimes take the children to school, but it was the accused who mostly took the children to school.[235] In the mornings, on the way to school, KM would sit in the front seat and HN, A, D, and S would sit in the back seat.[236] After KM was dropped off, the children would take turns sitting in the front seat except for S who always stayed in the back because she sat in a baby seat.[237] The accused said he never dropped the younger children at school before HN and he never took HN to school on her own.[238]
[232] T259.
[233] T260.
[234] T260.
[235] T260.
[236] T262.
[237] T262.
[238] T262.
The accused agreed that KM and TH went to Melbourne for a church-related trip.[239] He could not recall the exact date, but he thought it might have been at the beginning or end of 2016.[240] The accused agreed that TH and H also went to Melbourne for a church function in 2017 or 2018[241] while KM remained at home.[242]
[239] T266.
[240] T266.
[241] T267.
[242] T268.
The accused said HN and his children would use his mobile telephone.[243] He said HN would say she needed it for homework.[244] The accused said that Thomas More College provided HN with a laptop, which she would also use at home.[245]
[243] T270.
[244] T269-270.
[245] T270.
In cross examination, the accused agreed he still has contact with his daughter, KM, and he was aware that KM has contact with TH and her half-siblings.[246] The accused said he and his family believed HN was looking for a reason to leave the house.[247] He thinks HN made up the alleged offending because she wanted to leave the house and be like KM.[248] The accused agreed, however, that HN had never said anything like that to him.[249] He said he thinks HN is suffering too.[250]
[246] T274.
[247] T277.
[248] T278.
[249] T278.
[250] T278.
The accused said he had a good relationship with HN, even before she arrived in Adelaide.[251] He was looking forward to HN’s arrival because he knew TH was worried about her.[252] After HN arrived, she started calling the accused ‘Papa’.[253] The accused agreed HN got on well with her other younger siblings.[254]
[251] T282.
[252] T282.
[253] T282.
[254] T282-283.
The accused said he was not sure what time the children started school.[255] He thought it was at 9:00 am.[256] The accused said he would travel with the children to Salisbury train station, then Thomas More College, and then St Mary Magdalene.[257] The accused maintained that he always dropped HN at school before the other children[258] because he could not leave the younger children at school on their own.[259] Furthermore, he needed to hand the youngest one (S) directly to her teacher.[260] The accused said there was never an occasion where the younger children had a pupil free day and he only took HN to school[261] nor an occasion where he took HN to school alone because the younger children were sick or had to be at school earlier than usual.[262]
[255] T286-288.
[256] T287.
[257] T287.
[258] T288.
[259] T288.
[260] T289.
[261] T289.
[262] T289.
As to the accused’s internet history on his mobile telephone (P6), the accused agreed he checked his Commonwealth bank account using Safari.[263] He agreed there were some Tigrinyan symbols next to ‘Commonwealth NetBank’[264] but said it was not he that used them on his mobile telephone.[265] The accused agreed he searched for Modbury Vista Club Richardson[266] and there were some Tigrinyan symbols next to that search entry, but said he never typed in Tigrinya on his phone and he only used English.[267] The accused agreed there were more Tigrinyan symbols next to ‘pron sex’.[268] He said he believed he searched for ‘pron sex’ in English, but he was not sure.[269] The accused agreed he sometimes watched (pornographic) videos on his phone.[270] The accused disagreed that he showed HN pornographic videos on Monday 4 June 2018 when he dropped her off at Thomas More College.[271]
[263] T290.
[264] T290.
[265] T290.
[266] T290-291.
[267] T291.
[268] T291-292.
[269] T293.
[270] T293-294.
[271] T294.
TH
TH, the accused’s wife and HN’s mother, also gave evidence. TH said she had never worked in an Ethiopian restaurant, or any other restaurant.[272] She spent her time looking after her children and studying English.[273] TH said she was never out at night time.[274]
[272] T309.
[273] T309.
[274] T309; 315.
TH said she never observed HN behave in a fearful manner or try to avoid the accused.[275]
[275] T315.
TH said that her daughter had an interest in computing, phones and technology.[276] TH said that HN used TH’s mobile telephone, and helped her by placing contacts in her telephone and downloading applications.[277] TH said HN also used the accused’s mobile telephone.[278]
[276] T313.
[277] T314.
[278] T315.
TH said she went to Melbourne with KM for two days whilst they were living in Brooklyn Park.[279] TH said she also went to Melbourne with her young child H at the beginning of 2018, after they had moved to Elizabeth East, but on this occasion KM stayed home.[280]
[279] T310.
[280] T311.
TH said that sometimes she would take the children to school, and sometimes the accused would take the children to school.[281] HN started at St Mary Magdalene when she was in year 7.[282] The children were all dropped off at St Mary Magdalene at the same time.[283] HN started at Thomas More College when she was in year 8.[284] A, S and D were still attending St Mary Magdalene at the time.[285] TH said that either she or the accused would drive the children to school.[286] First, KM would be dropped off at the train station.[287] Then HN would be dropped off at Thomas More College[288] followed by A, S and D at St Mary Magdalene.[289] TH said they dropped HN off before the younger children because HN started school earlier, and because they would need to hand S over to the teacher once school had started[290] notwithstanding St Mary Magdalene was closer to their home than Thomas More College.[291]
[281] T312.
[282] T312.
[283] T312.
[284] T312.
[285] T312.
[286] T313.
[287] T312-313.
[288] T313.
[289] T313.
[290] T313.
[291] T312.
TH agreed that she was concerned when HN did not come home from school on 6 June 2018 so she drove to Thomas More College.[292] A security guard told her that she was not allowed inside the school, and that the police would contact her. TH and her family then went to the Elizabeth police station where they were told that HN was in a room. The police took the accused into a different room.[293] TH said she did not see the accused again that night.[294] TH said the police then told her of the allegations.[295] TH said that later that night, two women came to her house and told her that they would take all of her children away from her if she spoke to HN about the alleged offending.[296] TH said she signed papers, agreeing that she would not ask HN any questions about the matter.[297] TH said that the next day, she was told that her daughter needed to go back to her.[298] TH said it was a bad time for her – she was shocked and she was not stable.[299] She asked if HN could stay with the police.[300] The police said they would try and find accommodation for HN.[301] TH said two days later she called and asked if HN could come home.[302] HN returned home. TH said that about four days later, TH received a phone call from child protection during which she was told that HN was not going to be coming home that night.[303] TH said she was crying and asking why they were taking her daughter away from her.[304] TH said she was told that HN was not safe with her, and that she would need to go to court to find out more information.[305] TH said she went to court many times after that.[306] Eventually she was told that child protection were going to keep HN in their care for one year[307] and that she was not allowed to see or contact HN because she had previously discussed the allegations against the accused with HN.[308] TH said that she had not discussed the case with HN or her children.[309]
[292] T318.
[293] T318.
[294] T318-319.
[295] T320.
[296] T320.
[297] T320.
[298] T320.
[299] T320-321.
[300] T320.
[301] T320.
[302] T321.
[303] T321.
[304] T321.
[305] T321.
[306] T321.
[307] T321.
[308] T321-322.
[309] T323.
In cross-examination, TH agreed she still has contact with the accused and they speak on the phone and see each other when it is permitted.[310] TH agreed she is financially dependent on the accused.[311]
[310] T336.
[311] T336.
TH agreed that she knew what HN had alleged against the accused because she saw it on the papers provided by police.[312] TH said she has never discussed the charges with the accused[313] nor did she tell her younger children that the accused was facing charges.[314] TH agreed that the children know HN alleged something against the accused, as that is why the accused cannot be at home with them.[315] TH said she had not told her children that HN was lying about what had happened.[316]
[312] T339.
[313] T339.
[314] T339.
[315] T339-340.
[316] T340.
TH agreed that she received a copy of the intervention order from Detective An.[317] She agreed she told Detective An that she did not want HN to stay with her at that time.[318] TH said she called Detective An two days later and asked him to bring HN home.[319] TH disagreed that she told HN to say that she had lied about the accused and maintained that she never spoke to HN about it.[320]
[317] T340-341.
[318] T341.
[319] T342.
[320] T342.
TH denied that she knew that one of the allegations involved something happening to HN on the way to school.[321] TH disagreed that she came to court to support the defence case that the accused had no opportunity to commit the alleged offending whilst taking HN to school.[322] TH disagreed that she and the accused had discussed it.[323]
[321] T344.
[322] T344.
[323] T344-345.
TH agreed that Detective An asked her to provide a statement to police.[324] She said she could not provide a statement at the time because her children were going to soccer and there was no interpreter.[325] TH said she called Detective An later but he did not respond.[326] She said she spoke to Detective An when she took KM to provide her statement and Detective An said he would organise an interpreter and speak to her, but he never did.[327]
[324] T345.
[325] T345-346.
[326] T346.
[327] T346.
AM
AM also gave evidence. He is now 13 years old[328] and in year 8 at school.[329] AM said he slept in the same room as HN in Brooklyn Park. In that room, HN shared a bed with KM and AM shared a bunk bed with D.[330] AM said that at the Elizabeth East house, HN shared a room with KM but they slept in separate beds, and AM shared a room with SM and DM.[331]
[328] T351.
[329] T351.
[330] T352.
[331] T352.
AM said that he and his siblings used their parents’ mobile telephones to play games, do homework and watch soccer on YouTube.[332] AM said HN showed him how to use YouTube.[333] He said HN mostly used the accused’s mobile telephone.[334]
[332] T354.
[333] T354.
[334] T354-355.
AM said his mother did not go out at night.[335] Sometimes AM went with his mum to friends’ houses on the weekends.[336] He said his mum also takes him to sport on the weekends.[337]
[335] T355.
[336] T355.
[337] T355.
AM said his parents dropped him to school.[338] AM said KM would always sit in the front seat when they left home.[339] They would drop KM off at the train station in Salisbury.[340] Next, HN was dropped off at Thomas More College.[341] AM said he and DM were dropped off last because SM was not allowed into the school grounds by herself.[342]
[338] T355.
[339] T356.
[340] T356.
[341] T356.
[342] T356.
In cross-examination, AM agreed he could not remember every single time he was dropped to school.[343] AM agreed he started using his parents’ mobile telephone towards the end of living at the Brooklyn Park house.[344] He was about 10 or 11 years old at the time.[345] He agreed he played games, watched soccer videos and did homework – such as calculations and Googling word definitions – on his parents’ mobile telephones.[346] AM agreed he saw HN helping the accused with his mobile telephone.[347] He said she would help him set up applications.[348]
[343] T358.
[344] T359.
[345] T360.
[346] T359-360.
[347] T364.
[348] T364.
AM said his mother has never told him why HN moved out of home.[349] He said he did not want to ask her.[350] He agreed that sometimes he is curious as to why she moved out.[351] He said he asked his mother once but she said: ‘Don’t worry – It’s alright’.[352] AM said he never asked KM why HN moved out of the house.[353] He also once asked his mother why he could not talk to the accused, but she did not tell him anything.[354] AM said he did not ask KM about it and KM has never said anything about why the accused is not at home.[355] AM said his mother did not tell him why he was coming to court but he thought it was about his father and HN because they are both no longer living at home.[356]
[349] T366.
[350] T366.
[351] T366.
[352] T366-367.
[353] T367.
[354] T367.
[355] T367.
[356] T369-370.
Discussion
The prosecution case relied on HN being accepted as a truthful and reliable witness. I must accept the evidence of HN beyond reasonable doubt, and reject the accused’s denials on oath as a reasonable possibility, if I am to convict the accused of the charged offence. There was no evidence independent of HN to support the charge. In saying that, I put to one side for the moment the evidence of the accused accessing pornography on his mobile telephone relevant to the fifth occasion.
The primary defence submission was that HN deliberately lied and fabricated the allegations for her own motives; that she was an untrustworthy and untruthful witness. On the defence case, HN fabricated the allegations to ensure that she could move out of home and live independently, like her step-sister KM. I could not entirely discount that purported motive for HN to lie notwithstanding, initially at least, it was at TH’s instigation that HN did not return home, and as it turned out, HN is now living with a foster family, not independently. I thought HN may well have had that motive to lie given that HN had not grown up with her mother TH, and her step-sister KM had only recently left home when she first complained of the allegations.
Further, there were features of HN’s evidence which caused me to question the reliability of her evidence and which ultimately led me to conclude that I could not be satisfied beyond reasonable doubt of the charged offence. They are as follows.
First, HN’s evidence in court was inconsistent with several important aspects of her account provided in two lengthy police interviews. In those interviews, HN did not recount or disclose the first occasion involving the accused having had penile/vaginal sexual intercourse with her on the living room floor in Brooklyn Park.[357] Further, HN’s evidence in court was limited to describing the five occasions of alleged sexual or indecent conduct, and she could not recall any other sexual incidents. Yet, in her police interviews, HN described sexual intercourse as having occurred in other sexual positions, and implicitly referred to the accused having caused her to touch his penis on other occasions, both in his car on the way to school and at home as well as the accused having showed her pornography on other occasions on the way to school. To Dr Tee, HN also said that she had experienced bleeding during ten occasions of sexual intercourse, and that there were other occasions of sexual intercourse when there was no bleeding. To Dr Tee, HN alleged a far more extensive sexual relationship with the accused than she did in court. HN also told Dr Tee that there was both penile and digital penetration.
[357] T123; 125.

HN provided no persuasive explanation for these inconsistencies. HN was aged 13 at the time of the police interviews and gave evidence when aged 15 years, less than 2 years later. She was not a very young child at either stage of the court process. HN’s explanation for the discrepancies between her evidence in court and the account she gave in her police interviews was that she remembered more when she spoke to police. I did not find that explanation at all convincing given the breadth of those inconsistencies and her age.
Second, there was little opportunity for the alleged occasions of unlawful sexual acts to have taken place. The first four occasions were all said to have occurred at night whilst HN’s younger siblings were asleep, and TH and/or KM were out. HN gave evidence that her mother worked in an Ethiopian restaurant at night. That evidence was directly contradicted by KM’s evidence (called on the prosecution case) and by the evidence of the accused, TH and AM. Further, KM and the defence witnesses each gave evidence that TH was routinely home at night. KM also gave evidence that she, KM, did not go out at night.
More specifically, the fourth occasion involving penile/vaginal sexual intercourse was alleged to have occurred in HN’s bedroom (which she shared with KM) at Elizabeth East whilst TH and her mother were in Melbourne. Yet, TH and KM both gave evidence that they went to Melbourne together on one occasion only, and TH said that occurred when the family lived at Brooklyn Park. I had no basis to discount the evidence of KM or TH on this topic. KM is the accused’s daughter, and remains on good terms with the accused, TH and her half-siblings, yet I consider that is of itself, not a sufficient reason to reject her version of events. She presented as a shy but forthright witness. Nor did I consider there was a basis to reject TH’s evidence on the topic. I did not consider her a partisan witness. In that regard, I consider her explanation as to why she did not initially wish for HN to return to the house plausible given her shock and dismay as to the allegations, and her concern that her other children would be removed from her care. TH also expressed a concern for her child, HN, during her evidence which struck me as genuine. I could not discount her evidence as untruthful.
As to the fifth occasion involving the accused allegedly showing HN pornography and causing her to touch his penis, HN’s evidence that she was always dropped last at school was again directly contradicted by the evidence of the accused and those witnesses called by defence - TH and AM. On the defence case, there was no opportunity for this alleged incident to have occurred. I considered the reasons given by the accused and TH for dropping HN at school first, and the younger children at school last, to be plausible. I did not think their explanations were undermined by the fact the accused could not recall the precise time school started. I am unable to reject their evidence on this topic. Again, this leaves no opportunity for the fifth occasion of unlawful sexual acts to have occurred.
Whilst the evidence of the internet search history on the accused’s mobile telephone, at first glance, materially supports HN’s allegations of the fifth occasion, the accused admitted that he used his mobile telephone to watch pornography. As such, the presence of pornography on his mobile telephone may well have been long known to HN. Despite HN’s evidence to the contrary, each of the other members of her family who gave evidence said HN regularly used the accused’s mobile telephone. The evidence of the internet search history also supports the defence case that HN had knowledge of sexual matters, and of the accused’s interest in watching pornography on his mobile telephone, sufficient to fabricate these allegations.
Third, the evidence of HN’s initial complaint is relevant to show how the allegations first came to light, and as potentially relevant to show the degree of consistency of conduct by HN. However, the terms of HN’s complaint was inconsistent with the allegations in court, to the extent that HN said that the last sexual act between herself and the accused had occurred months ago when, on the prosecution case, it had occurred only two days earlier. Ultimately, HN’s initial complaint did not buttress her credibility to the extent that I could put HN’s inconsistencies to one side and be satisfied beyond reasonable doubt that any of the alleged unlawful sexual acts occurred.
I have had regard to the accused’s sworn evidence denying the allegations, and considered the accused’s evidence in the context of his previous good character. The accused’s evidence was not inherently improbable nor undermined by any significant inconsistencies or implausibility. The accused’s evidence was also supported in material ways by the evidence of KM, TH and AM. I could not discount the accused’s denials as a reasonable possibility.
For those reasons, I find myself unable to be satisfied beyond reasonable doubt that the accused committed any unlawful sexual act on, or with, HN, or maintained a sexual relationship with HN. Accordingly, the prosecution has not proved the charged offence.
Verdict
I find the accused not guilty of the charged offence.