R v v,D
[2023] SADC 176
•15 December 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v V,D
Criminal Trial by Judge Alone
[2023] SADC 176
Reasons for the Verdict of his Honour Auxiliary Judge Barrett
15 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with Maintaining an Unlawful Sexual Relationship with a Child whom he later married.
The accused gave evidence denying the charge. He called witnesses.
Held: The accused is Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 50, 269WA; Evidence Act 1929 (SA) s 34P, referred to.
QYFH v The Minister for Immigration [2023] HCA 15; Hinton v Mill (1991) 57 SASR 97, discussed.
Douglass v The Queen [2012] HCA 34; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242; R v F, CJ [2011] SASCFC 2; R v C, CA [2013] SASCFC 137; Liberato v The Queen [1985] HCA 66; Hall v The Queen [2021] SASCFC 16, considered.
R v V,D
[2023] SADC 176Criminal
The accused is charged with Maintaining an Unlawful Sexual Relationship With a Child between 1 July 2001 and 30 June 2005. During that period the complainant was aged between 13 and 17. The accused was aged between 21 and 25. It is agreed that in the same period the complainant was a family friend of the accused and his family. The accused is alleged to have committed more than once each of nine of the unlawful sexual acts set out in the Information. It is alleged he committed particular (j) only once. It is agreed that the accused and the complainant married on 17 February 2013. The accused was aged 32 and the complainant was 23. They had a child together in 2014. They were divorced in 2016.
The accused elected to be tried by Judge Alone. He sought to revoke his election. At the end of this judgment I set out my reasons for refusing that application and declining to recuse myself.
I reproduce the Information.
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
DV at Marion, Mitchell Park and other places, between the 1st day of July 2001 and the 30th day of June 2005, maintained an unlawful sexual relationship with JSS, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards JSS, namely:
(a) kissing her on the mouth, on more than one occasion;
(b) causing her to touch his penis, on more than one occasion;
(c) touching the outside of her vagina with his hand, on more than one occasion;
(d) inserting his finger into her vagina, on more than one occasion;
(e) inserting his penis into her vagina, on more than one occasion;
(f) causing her to perform an act of fellatio upon him, on more than one occasion;
(g) performing an act of cunnilingus upon her, on more than one occasion;
(h) causing her to watch pornography, on more than one occasion;
(i) inserting his penis into her anus, on more than one occasion; and
(j) inserting an object, namely a baseball bat, into her vagina.
Summary of the Case for the Prosecution
Both the complainant’s family and the accused’s family migrated from Croatia. The families came to live nearby in the southern suburbs of Adelaide. The younger brothers of both the complainant and the accused were of similar age. They became friends when they went to the same kindergarten. The complainant’s only sibling is her younger brother. The accused has an older and a younger brother. Through the younger brothers the two families became close. In particular, the two mothers became close friends. They would meet up several times a week. They would go for walks together, and socialise in their respective houses. The complainant was aged seven or eight when she came to know the accused’s family. The accused is eight years older than she is.
The prosecution case is that when the complainant became an adolescent, in her last year at primary school, she developed a crush on the accused, and became close to the accused. They became boyfriend and girlfriend when she was aged 13. The accused said that their relationship had to be kept secret. During movie nights in the accused’s bedroom attended by the complainant, the accused, and their two younger brothers, the accused began touching her sexually. She was 13 at the time. As time went on the sexual touching escalated to sexual intercourse. The accused would organise for there to be a break in the film nights and the brothers would go out of the bedroom. The accused would lock the door. In public the couple would appear friendly but would not display overt affection. In 2003, when the complainant turned 15, the accused purchased a unit in the neighbourhood. The Crown case is that the complainant helped renovate the unit. She and the defendant planned to live in it. In 2003 the complainant consulted a doctor for the ‘morning after’ pill as a result of the accused ejaculating inside of her.
The couple’s plan to move into the unit did not materialise because in 2006 the accused sold the unit and purchased a café. It is the Crown case that the couple effectively bought the café together although the complainant was too young to sign any documents. The complainant turned 17 in 2005.
The prosecution tendered photographs which demonstrated that from when she was aged about 13 there existed a romantic relationship between her and the accused. The prosecution called witnesses who testified to that effect, although none witnessed any sexual behaviour.
Summary of the Case for the Defence
The defence case is that there was never a romantic relationship between the accused and the complainant until about 2011 when the complainant turned 21. Before that the relationship was simply that of family friends. The accused was never aware of the complainant having a crush on him. He treated her as a younger sister. The development of a romantic relationship in 2011 was reluctant on his part. He was really pushed into the relationship, and subsequently the marriage, by the complainant’s parents.
The defence case is that the photos tendered by the prosecution show nothing more than a familial relationship. Photographs and documents tendered by the defence contradict significant aspects of the complainant’s evidence. In particular, the exhibits demonstrate that the accused could not have had the sexual intercourse which the prosecution alleges caused the complainant to consult a doctor in 2003.
The defence case is that the complainant’s evidence is not credible and reliable.
Course of the Trial
The prosecution called as witnesses the complainant, her brother RS, her mother JS, and three family friends, ES, JE, and TC. Exhibits were tendered, and there were agreed facts.
The accused gave evidence. He was not obliged to give evidence, but having done so, I treat his evidence in the same way that I do of other witnesses. The defence called the accused’s younger (AV) and older (RV) brothers, and his mother MV. Exhibits were tendered and there were further agreed facts.
Evidence of the Complainant
The complainant said that when she was in primary school, she would visit the accused’s family with her younger brother after school several times a week after school. Her mother would go too because the two mothers were close friends. She would go on walks with the accused and the two younger brothers. Until she was aged 12 or 13 a female friend of the accused named Leah would also go on walks, but that friend stopped coming. When the complainant was aged 12, and in her last year of primary school, she developed a crush on the accused.[1] In addition to seeing the accused during her frequent visits to his family, she started sending him flirtatious MSN messages. The flirtatious messages were reciprocated by the accused. She would secretly telephone him at night.
[1] T 44.
When she was aged 13, in her first year of high school, she and the accused made a plan to meet and have sexual contact. The plan involved the complainant telling her parents that she was going to be staying with a named friend. However, the plan was thwarted by her parents and was never carried into effect.
After the failed plan the complainant said the accused took her for a drive to a lookout off the top of South Road. He purchased an alcoholic drink for them. After they both had a drink at the lookout the accused kissed her.[2]
[2] T 50-51.
Sometime later the accused and the complainant were in a reserve with their younger brothers. While there, the accused asked her to be his girlfriend. She agreed. He said that they would have to keep their relationship a secret. He told her that as his girlfriend she would be expected to listen to what he said, and do what he wanted.[3] The complainant produced 11 photographs comprising Exhibit P3, six of which were taken in that reserve. The complainant was unsure whether the photos were taken on the day the relationship was agreed upon. The complainant was aged 13 at the time.
[3] T 54.
The complainant said that, subsequently, the accused said that she was to have sex with him when he wanted it although they did not immediately have sexual contact.[4] That contact began on movie nights in the accused’s bedroom. The complainant produced a floorplan of the accused’s bedroom which was divided into two, the lower part showing the room with a single bed and the upper part showing a double bed. The former depicted the room as it was when the complainant initially started going to the house. The latter showed how it was when she was aged about 15. In the bedroom the accused committed the acts alleged in particulars (b), (c), and (d). Over the subsequent years those acts were committed multiple times.
[4] T 55.
The complainant said that the accused had penile/vaginal sexual intercourse with her on movie nights (particular (e)). On these occasions, the accused would ask the brothers to leave and would lock the bedroom door. On the first occasion he told the complainant to undress and to get on her hands and knees. He penetrated her vagina from behind. He said he was surprised that she was not bleeding. He questioned whether she was a virgin, by saying that he had had sex with virgins, and they had bled. She said she truthfully told him that she was a virgin.[5] She was aged 13 or 14 at the time.
[5] T 59-60.
The complainant fixed several incidents by reference to her trip to Croatia with her mother and brother between September and November 2002. She turned 14 in July 2002. She said she did not want to go to Croatia because she did not want to be away from the accused. She rang him frequently and made it clear to her mother that she did not want to be away. She said that while she was away she told the accused that she was using tampons. The accused became angry because he thought that meant she was not a virgin. She panicked in the face of his anger.[6]
[6] T 66-68.
The complainant identifies two incidents before she left for Croatia in September 2002.
The first is a visit the complainant said she and the accused made to Tennyson Beach a few months before she went to Croatia. She produced two photographs which she said were taken by the accused at the beach. In the bundle of photographs, Exhibit P3, the first two photos are said to be taken by the accused. The complainant said that the first is a “selfie” showing her with her arms around the accused kissing him on the cheek. The second is of her standing on a sandy path down to the water. On the prosecution case the first photo suggests the affectionate relationship that existed at the time. On the prosecution case the photo is inconsistent with the defence case that this was a photo taken by the accused’s mother which depicts only a familial relationship.
The second is the occasion of a singing competition at the Croatian Club in which the complainant was a performer. A video was taken of parts of that occasion by the accused using the complainant’s family camera. The resulting footage was said to have been taken by the complainant’s mother to Croatia to show family members. On the prosecution case the footage shows the familiar and somewhat flirtatious behaviour of the complainant in front of the camera, and the accused’s responding voice behind the camera (Exhibit P5).
The complainant said that after she returned from Croatia, she and the accused resumed their sexual relationship. The sexual behaviour escalated. The accused engaged the complainant in fellatio. She said that the first time that happened the accused ejaculated in her mouth. She spat out the ejaculate, whereupon the accused told her that that was rude or offensive. That act was committed many times although it stopped for a while after she had braces put on her teeth when she was aged 15. The braces were removed just after her 18th birthday.
The complainant said that the accused played pornography in her presence and invited her to participate in some of the acts portrayed. He attempted to insert a baseball bat into her vagina (particular (j)). He engaged in anal sexual intercourse (particular (i)). Some of the pornography depicted sex with animals. In the detached rumpus room of his parents’ house the accused put the family’s pet dog on the complainant’s back, but intercourse did not take place.[7] The complainant was aged around 15 when these incidents occurred.
[7] T 69-75.
On 24 October 2003, when the complainant was aged 15, the accused purchased a unit in the neighbourhood. It was near the complainant’s school. She said the accused set about renovating the unit with a view to them living in it. The complainant would skip school and help with the renovations. The work was not completed until she was aged 16 or 17 (2004, 2005). She said that she and the accused frequently had sex at the unit.
The complainant said that there were two incidents that she remembered happening whilst at the unit. The first related to an isolated act of violence by the accused. The complainant said that as a result of something she said the accused became angry and slapped her in the face. She was shocked. He had never done that before. She started crying. He told her that she should not speak to him like that. He consoled her. They went into one of the bedrooms and had sex.[8]
[8] T 80-81.
The second related to an act of penile/vaginal sexual intercourse they had at the unit. The complainant said that the accused would usually withdraw his penis before ejaculating but on this occasion he did not. She remonstrated with him including asking, rhetorically, what would her parents think if she became pregnant. He said that she should be more worried about him, than what her parents might think.[9] As a result of her anxiety the accused took her to her doctor the following day to obtain a ‘morning after’ pill.[10] There is a witness statement with annexures from the doctor which indicate that the complainant consulted him on 17 November 2003 (Exhibit P11). He prescribed the medication. He has no recollection of details of the consultation. The complainant says the accused drove her to that consultation. She was aged 15 years and 4 months in November 2003.
[9] T 81-82.
[10] T 81.
The complainant said that it came to be recognised in their families that there was a romantic relationship between them. She said the accused’s parents recognised that when she was aged 14, and her parents when she was aged 15.[11] She and the accused appeared affectionate towards each other in public without there being overt sexual behaviour. They would hug, put their arms around each other and she would sometimes sit on his lap.[12] The sexual relationship was never disclosed.
[11] T 77.
[12] T 76-77.
The complainant said that her parents became concerned about the amount of time she was spending with the accused. They noticed that she was losing focus at school. She did not go out with her other friends. Her mother asked her why she was hanging around the accused and not spending time with people her own age. Her mother told her that she found it strange that the accused would be interested in spending time with her.
The complainant said there was an occasion when she was told by her parents not to go to the accused’s place, but she nevertheless went. Her father took her to the police station and told the police that she was not listening to them and that she was spending time with an older man. The complainant said she refused to say anything to the police. The police did not do anything. The complainant refused to go home with her father. She arranged for the partner of the accused’s older brother RV to pick her up. She was taken to their house. The accused was there waiting for her. The brother’s partner later returned her to her parents. She was aged about 14 at the time.[13]
[13] T 93.
The complainant produced photos which the prosecution submits illustrate the affection between the couple. Exhibit P3 contains photos of their visit to Tennyson Beach (pg.1) and there are photos of them when they attended a wedding together (pg.2). In relation to the latter, the two photos were taken at the accused’s parent’s house before they went to the wedding. The complainant said she was aged 15 at the time. In one photo the accused has his arm around her waist. In the other she has her arm through his. The complainant said that the accused purchased for her the dress and shoes that she is wearing. They had gone together to the city to shop for the items. The accused told her to say at the wedding that she was 17.
A photo on page 3 of Exhibit P3 was taken of the couple by the complainant’s mother outside the venue of a singing competition. The complainant says that at the competition her father introduced the accused as her boyfriend. She was aged 15 or 16 at the time. She is shown wearing braces on her teeth. The braces were put on when she was aged 15 and removed when she was 18.
Exhibit P7 includes a still image extracted from a video taken at a baptism ceremony which occurred on 29 February 2004. It shows the couple sitting next to each other and smiling. The invitation to a later baptism event in July 2005 is part of Exhibit P7. The other two photos show them sitting next to each other at that later baptism.
The complainant left school in late 2005, almost at the end of the school year.
On 13 April 2006 the accused sold the unit which he had been renovating. In May 2006 he purchased, from friends of the complainant’s parents, a café in Waymouth Street. The complainant said that the business was planned to be for both her and the accused, but she was not old enough to sign documents. In late May 2006 the complainant was aged 17 years and 11 months. It is an agreed fact[14] that the complainant had done four days’ work experience at the café in August 2004 when the café was owned by the friends of her parents. She said that when the accused purchased the business she worked there. She was not paid wages but she shared the profits with the accused.
[14] Exhibit P18 Agreed Facts p 2.
The complainant said that at the time of the purchase of the café she was living with the accused at his parent’s house. They remained living there until the accused purchased a house in February 2007.[15] The house was in the street next to his parents. The complainant was aged 18 at that time. The couple lived together in that house.
[15] Exhibit P18 Agreed Facts p 2.
The complainant said that during her adolescent years she had a very positive attitude towards the accused, but she detailed a course of controlling behaviour which he came to exercise over her. She was not asked when that behaviour began.[16] The charged period ends on 30 June 2005.
[16] T 91.
In cross-examination the complainant agreed that, contrary to the report she made to police on 18 October 2003 (Exhibit D8), her father was not violent towards her.[17] She said her father “would say things when he was angry”[18] but he had never assaulted her.
[17] T 101.
[18] T 104.
When the police report was put to her she said that she remembered making a report to the police but she could not remember what she told them. She accepted that the report would be what she said. The report is said to have been made at 5.27 pm on 18 October 2003 at the Glenelg Police Station. The narrative in the report is to the effect that the complainant had been frequently threatened and assaulted by her father over a 12 month period. There is a record of a follow up phone call by the police on 27 October 2003 in which no further incidents were said to have occurred and that the complainant would contact the police if any further assistance was required.
There is a final note in the report on 25 February 2004 that shows a phone call from the complainant saying that, while her father makes threats during arguments, she has not been assaulted. There is a note that she is seeing a counsellor at school, and she did not wish to do anything at that stage.
The complainant said that the accused had taken her to the police station on the day of the initial report to complain to the police so that the couple could be together and her parents could not stop it.
It was never put to the complainant that her father had been violent towards her in the presence of any members of the accused’s family.
The complainant denied that she ever told the accused’s mother that her father had been violent towards her, but she did tell her they had had an argument.[19]
[19] T 102.
Recall of the Complainant
The complainant was recalled for further cross-examination on two topics.
The first related to clarifying her evidence about what appeared to be the two occasions on which she went to the police station.
She affirmed that there was one occasion when her father took her, and a later occasion when the accused took her.[20] There is no record of the first visit. Both visits were to the Sturt Police Station.
[20] T 204.
In respect of the second visit, the complainant said that she could not recall threatening that she would tell police that her parents were abusing her. In her earlier evidence she had said she had threatened to say that they were abusing her, not that she would tell the police about it. When her father took her to the police she said nothing. Her father was trying to get the police to do something about her associating with an older man. She was collected from the police station by the accused’s brother’s partner.
She said that the accused took her to the police station on the second visit, which was a couple months after the first. She said he was angry that her father had taken her to the police station. The accused said he took her to the police station so that she could make allegations about her father. That visit lead to the report which was made on 18 October 2003, Exhibit D8.
The second topic of cross-examination concerned photos which came to be accepted as from a dinner at the accused’s parents’ home celebrating the accused’s older brother’s birthday in June 2005. The complainant was asked to identify the people depicted at the table. The point of the questioning was to put to the complainant that a woman sitting between the accused’s father and her own mother was the accused’s then girlfriend Fiona. The complainant was unable to identify the woman. She thought it might have been the accused’s brother’s first partner, the mother of the child depicted standing in front of the birthday cake. She was not sure who it was but she was adamant that is was not the accused’s then girlfriend.[21]
[21] T 209.
Evidence of the Complainant’s Brother RS
The complainant’s brother is about four years younger than she is. He is now aged 31. He said that he had a road accident when he was 19 and as a result suffers from short term memory loss. He said that his family and the accused’s family were close. He was friends with the accused’s younger brother. He said that he and his sister would go to movie nights at the accused’s place but they would watch the movies in the lounge room. He said that sometimes the accused and his sister would go “to their room, who knows what for …”.[22]
[22] T 143.
He said that he had been in the accused’s bedroom. There was a computer there. The accused had shown him something on it. He remembered the accused having “a background of Ace Ventura on his wallpaper”.[23] He remembered seeing his sister at the accused’s unit. The two of them spent a lot of time together.[24]
[23] T 144.
[24] T 146.
RS said he never saw any touching between the accused and the complainant on the movie nights. People had blankets on them while watching the movies.[25]
[25] T 147.
Evidence of the Complainant’s Mother JS
JS said that when they got to know each other she and the accused’s mother would frequently go on walks in the park. Initially they would go with the complainant and the two younger boys but the complainant stopped coming when she was aged 13 or 14. The two younger boys also eventually stopped coming so the two mothers went alone.
JS said that the younger boys would stay at the accused’s house playing PlayStation. The complainant would watch movies with the accused in his bedroom.
There were times when the accused would take the complainant and the boys to the park.
At times the complainant would go with just her brother to the accused’s place. Later the complainant would go on her own. Sometimes the accused would come and pick her up. She would come home from school and say she was going to the accused’s place. JS became increasingly unhappy about what the complainant was doing, and she tried, unsuccessfully, to stop her daughter from spending so much time with the accused. She was worried about the age difference. She told the complainant that she should be meeting with friends her own age. Sometimes the complainant would come home from the accused’s place late at night.[26]
[26] T 117.
JS noticed that the complainant’s school results were going down. The complainant was wanting to leave school, something she and her husband resisted. The complainant left school in year 11 when the accused purchased the café. That was why her daughter left school. She went to work in the café.[27]
[27] T 160-161.
JS said that the complainant did not want to accompany her brother and her on the trip to Croatia in 2002. The complainant tried to get her father to book her an early return flight, but he refused. The complainant was frequently using the mobile phone they had to send messages.[28]
[28] T 163.
JS said that there was an occasion back in Adelaide when she tried to physically stop the complainant from going to the accused’s place. The complainant threatened to allege that she was being abused at home. Her father took her to the police station. The complainant was brought home later by the accused’s brother’s partner. JS thought the complainant would have been aged 15 at that time.
JS said that although she never saw any overtly sexual behaviour by the accused and the complainant together, she saw that they were “closer than friendship”.[29]
[29] T 165.
JS said that she became aware that the accused had purchased a unit. The complainant told her that they were renovating it. JS and her husband were invited by the accused and their daughter to come and see the renovations.
JS said that there came a point when she realised the accused and the complainant were a couple. That point was a singing competition at the Croatian Club. At that competition she took the photo of the accused and the complainant together which is photo 5 of Exhibit P3. She said that she realised that they were a couple, and it was wrong, but she and her husband had been unsuccessful in dissuading their daughter. They did not want to alienate her. She did not want to accept it, but she did.[30]
[30] T 166-168.
In cross-examination JS agreed that the complainant spending increasing time with the accused caused conflict in her household. Her husband would become angry.[31]
[31] T 171.
Evidence of the Complainant’s Aunt ES
ES gave evidence of some photos she took at a singing competition in which the complainant was a performer.[32] She said that competition was on 16 September 2001.
[32] Exhibit P12.
ES said she visited the complainant’s family the day the family, minus the father, returned from Croatia. Gifts were being brought back. ES noticed the complainant was particularly dressed up and made up in a way she had not seen her before. The accused arrived at the house and left with the complainant.
ES’s son was christened on 29 February 2004. The first photo in Exhibit P7 is a still photo from a video showing the accused and the complainant at that christening. There are smiling at each other. The invitation and the two other photos in that exhibit are of a later baptism in July 2005 involving other people.
At ES’s son’s christening ES noticed that there was body language between the accused and the complainant which appeared to her to be affectionate and flirtatious.[33]
[33] T 183.
ES noticed similar behaviour between the two of them at a singing competition at the Croatian Club on a different occasion in 2004.[34]
[34] T 183-184.
In cross-examination ES agreed that she had not seen the accused and the complainant kissing or hugging on either occasion.
Evidence of a Family Friend JE
JE and her husband are friends of the complainant’s parents. They owned the café on Waymouth Street which they purchased in 1999 and sold in May 2006. JE said that they sold the café to the accused and the complainant.[35] The accused and the complainant came to them to discuss the purchase together. The paperwork showed only the accused as the purchaser because the complainant was not old enough to enter the transaction.
[35] T 187.
JE said that she had seen the accused and the complainant together at singing competitions at the Croatian Club. She said you could tell from their behaviour that they were in a relationship.[36]
[36] T 188.
In cross-examination JE agreed that she had not earlier mentioned what she had seen of the couple at the singing competitions, but she said that she had not been asked that question.[37]
[37] T 190.
Evidence of a Family Friend TC
TC is a friend of the complainant’s parents. He said that in approximately 2004 to 2005 he was invited by the complainant’s father to inspect the accused’s renovated unit to see if he would like to buy it. He went with the father to inspect the unit. The accused was there and was introduced to TC as the complainant’s boyfriend. TC did not purchase the unit.
In 2006 TC purchased a fruit and vegetable shop. The accused and the complainant would attend his shop to purchase produce for their café on Waymouth Street. TC sometimes visited the café and said that the complainant was always working there. That was her job in 2006.
TC said that there was an occasion when he was speaking with the accused on his own at the fruit and vegetable shop. They were speaking about the complainant. The accused said, “I trained her when she was young”.[38]
[38] T 195.
In cross-examination TC disagreed with the suggestion that he had misinterpreted what the accused had said, or that it was humorous banter. He said that there was an uncomfortable silence.[39]
[39] T 198.
Evidence of Detective Brevet Sergeant Leanne Attard
Tendered through Sergeant Attard was a screenshot of the accused’s phone, (Exhibit P14) This screenshot appears to depict an exchange between the accused and his younger brother. The accused was giving his younger brother advice about a breakup in a relationship. The accused’s advice included this passage:
“I loved her in a caring way. I was with her for 13+ years [A] had a Child together!!!!!! Don’t even go there”
The exchange took place on 18 May 2016, two days after the accused’s divorce order was pronounced.
The accused was arrested for the present matter on 23 November 2016.
Brevet Sergeant Attard and other officers attended the accused’s property on that day and seized exhibits. Brevet Sergeant Attard said she had no further contact with the accused after that date. No further materials were seized or received from the accused after that.
Evidence of the Accused
The accused was aged 42 when he gave evidence. He spoke of his background. He was born in Queensland. His family moved to South Australia in 1988. He spent three years with family in Croatia. On his return to Australia, he came to Adelaide. He attended primary school and high school in the southern suburbs. He went to the same high school which the complainant later attended. He detailed his varied work history. He had undertaken some tertiary education in Engineering and Economics but had not completed a course. He said that his parents bought him a computer when he was at university but they were disappointed by his leaving, so they gave his computer to his younger brother.
Leading up to 2002 the accused was in sales work. In 2002 he undertook a course and employment as a security officer. He worked in his café from 2006 to 2013. He had other jobs after that. A few years ago, he came to receive a Disability Support Pension (DSP). A certificate tendered by the prosecution in rebuttal indicates that he commenced receiving the pension on 27 April 2021 as a result of anxiety, depression and PTSD.[40]
[40] Exhibit P31.
The accused said that he suffered from multiple lifelong medical problems. He gave extensive details of these problems.[41] The defence tendered agreed facts, Exhibit D30, which set out the agreed medical conditions. Agreed fact 5 is to the effect that there are no medical reports of the accused complaining of, or seeking, treatment for erectile dysfunction during the charged period 2001 to 2005.
[41] T 229-234.
Agreed fact 4 is to the effect that between 2010 and 2015 the accused reported to his treating physician that, as a result of his suffering from his lifelong condition of congenital hypogonadism, a condition affecting his testicles, he has “a non-existent sex drive, libido arousal and inability to gain a spontaneous erection”.
The accused said that he began a romantic and sexual relationship with the complainant in 2011. There were married on 17 February 2013. Their child was born by invitro fertilisation on 6 May 2014.
The accused said that as a result of his medical problems, more particularly the problems with his genitals, he avoided intimate relationships.[42] He “accepted” relationships with females, but when a relationship got to a certain point, the point of intimacy, he would find excuses and back away.[43]
[42] T 231.
[43] T 343.
He explained the context of several of the photos tendered by the prosecution. He was taken to Exhibit P3. The first two photos were alleged by the complainant to be taken at Tennyson Beach, a few months before she went to Croatia in September 2002. The complainant said that the top photo on page 1 is a “selfie” taken by the accused showing her kissing him. The bottom one was taken by the accused. No one else was present.
The accused said that other family members were on the beach that day. He said the visit to the beach had something to do with the complainant and her father.[44] The complainant’s brother was there too. The accused’s younger brother was possibly there. His mother was there. She took the photo of the complainant kissing him. It is not a selfie. He is not sure who took the photograph of the complainant on the sandy path, but it might have been him. The accused said that there were other photos taken on that same occasion, but they are among many photos which he provided to the police at their request, and which have not been produced by the prosecution. He and his mother went to the Sturt Police Station several times to provide them with material. He was asked to identify people in photographs.[45]
[44] T 431.
[45] T 326-334.
The accused produced two further photos, Exhibit D24, taken on the same occasion, but they are photographs of him alone, and the complainant alone.
The accused said that there are two indications in the photographs on the beach which indicate that they were not taken before September 2002 as the complainant says, but were taken after 2006. The first is the fact that the complainant is not wearing bands on her teeth. She had them put on when she was aged 15 in 2003 and she had them removed in 2006 when she was aged 18. That would not exclude the photos being taken in 2002 as the complainant says, but the accused says that the cap he is wearing is one from a workplace. It is part of a uniform that was made available to him in and after December 2002, but not before.[46] The hat was not the first item given to him by his employers.
[46] T 240-241.
The accused denied that the photo showing the complainant kissing him on the cheek demonstrates a romantic attachment. The complainant did that sort of thing to other members of his family.[47]
[47] T 35-36.
In respect of the two photographs of him and the complainant posing before they went to a wedding,[48] the accused said that he was expecting to go to the wedding with his then-girlfriend Amy, one of three girlfriends called Amy. However at the last minute she said she could not go. The accused’s mother and the complainant’s mother then talked him into letting the complainant “tag along” with him. The accused was reluctant for that to happen, but he respected his elders and went along with the suggestions. He put on a brave face in the photos.[49] He was instructed to pose for them. There were other photos taken on the same occasion which involved multiple ones of the complainant and Amy, who was at the house at the time. The complainant’s mother took those photos. Those photos are no longer available because the complainant destroyed any photos of the accused’s girlfriends.[50]
[48] Exhibit P3 p 2.
[49] T 37-38.
[50] T 347.
The accused was asked about the top photo on page 3 of the exhibit showing him with his arm around the complainant with his thumb on the lower part of her breast. He said that he was instructed by the complainant’s mother to embrace the complainant as she had just won a singing competition. Her mother took the photograph. The complainant’s mother agreed she took the photo.
The accused was asked about a still image taken from a video of the christening of the son of the family member on 29 February 2004. It shows the accused and the complainant smiling at each other. The accused did not remember attending the function until reminded by the photo.[51]
[51] T 242.
He said that he had a single bed in his room at his parent’s house until late 2005. He produced a receipt[52] for the purchase of a queen size bed dated the 29 June 2005. The receipt refers to the delivery of the new bed and the removal of the old single bed. The accused said that his mother found the original copy of the receipt. That was handed to the police along with “vast amounts” of evidence that he and his mother handed in at the request of the police. The police had been to his property on numerous occasions to obtain evidence.[53]
[52] Exhibit D17.
[53] T 247.
The accused said that, contrary to the evidence of the complainant and her brother, he did not have a computer in his room during the charged period. His parents had given him a desktop computer in 1998 but when he discontinued tertiary education the computer was moved into his younger brother’s room. By 2000 the computer was no longer in his room.[54] He did not then have a computer until he sold his unit in 2006. He produced a receipt for a laptop computer dated 26 March 2006 (Exhibit D15). The original of that receipt was given to the police but he was able to obtain a printed copy which he produced.[55]
[54] T 249.
[55] T 251.
The accused was asked about the video of the singing competition (Exhibit P5). He agreed that he took the video and he agreed with the date being 15 September 2002. He agreed that the footage is being taken by him on the complainant’s family’s camera so that the footage could be shown to her family in Croatia. The complainant, her mother, and her brother went to Croatia between September and November of 2002.
The accused emphasised instructions he was being given from the complainant’s father about what footage to take. He said he was becoming annoyed at what he was being directed to do but he did it out of respect for his elders.[56]
[56] T 253-256.
The accused was asked about relationships he had had with women during 2001 to 2005. He remembered a relationship with an Asian woman called Amy in 2003. There was another woman also called Amy. She was the woman who could not accompany him to the wedding. When it was suggested in cross-examination that the accused did not have a girlfriend called Amy he said that he had multiple girlfriends called Amy.[57] When further questioned he said that, from memory, it would have been three.[58]
[57] T 348.
[58] T 349.
In examination-in-chief the accused identified another girlfriend as Fiona. He indicated her in the photo of his older brother’s birthday dinner (Exhibit D13).
The accused denied that he had taken the complainant to the police station on 18 October 2003 to make a report about her father. He denied taking her to the doctor for the ‘morning after’ pill on 17 November 2003. He gave detailed evidence and produced exhibits relating to these two topics.
In relation to the former, he said that he was at work at the time of the report to the police. The police report, Exhibit D8, says that it was made at 5:27 pm on 18 October 2003. The accused says that he was at work as a security guard at that time.[59] He gave a detailed account of working a shift for his employer at the Adelaide Central Plaza (ACP). He produced two exhibits bearing on that work. Exhibit D22 is a letter from his employer dated 18 August 2003, noting the accused’s agreement to work a shift at the ACP on Saturday 18 October 2003 between 7:30 am and 6:00 pm. Exhibit D23 is a roster showing the accused allocated to that same shift. The accused said that he is not able to produce payslips to indicate he did actually work that shift. He said that he did not keep a payslip.[60] He said that the employer’s letter, Exhibit D22, and the roster, Exhibit D23, are copy documents in his possession. He provided the originals to the police.[61]
[59] T 268-273.
[60] T 398-399.
[61] T 401-404.
In relation to 16 November 2003, the accused said that he was on leave from 12 to 19 November 2003.[62] During that time he went camping at Marion Bay on Yorke Peninsula with his then girlfriend Amy, who was Asian. He produced his own notebook, Exhibit D19, showing he was on leave at the time. He produced a roster, Exhibit D21, and he produced photographs of Marion Bay, Exhibits D16 and P25. He said that there were other photos of the Marion Bay trip which depicted Amy but they, like others depicting any girlfriend he had, were destroyed by the complainant.[63] The original copies of the photos tendered are with the police.[64]
[62] T 261-265 XN; T 377-396 XXN.
[63] T 389-390.
[64] T 378-379.
The accused gave detailed evidence about providing the police with materials during the charged period. The materials were provided directly to the police after he was charged and after he was represented by a solicitor.[65] He denied that he himself date stamped the copy photos.[66] The notebook, Exhibit D19, is a school exercise book and records that purport to be some periods of work. Although the accused said he made the notes, he described it as an official record for the employer.
[65] T 380-383.
[66] T 383.
I pause to direct myself that if a more timely complaint to the police had been made in this matter, the accused would have been in a better position to provide payslips, employer documents, photos and possibly testimony by Amy and other girlfriends.
In examination-in-chief the accused’s attention was directed to specific parts of the prosecution case. He said that he had no idea of the complainant having a crush on him.[67] He said that during the charged period he had little to do with her. While she was free-spirited, and would run up to him and hug and kiss him, she did the same to his whole family. It was in the Croatian manner.[68]
[67] T 273.
[68] T 274-276.
He gave a lengthy answer explaining how the complainant’s evidence of movie nights mis-states how his bedroom was set up.[69]
[69] T 276-277.
The accused explained how the romantic relationship, and ultimate marriage, came about.[70] After he purchased the café in 2006, the complainant’s parents asked him if she could work there. She had left school. They asked if she could work there for just a couple of weeks until she got a job, but the time at the café just kept getting extended. Her mother kept saying what a good couple they would make. That was despite the complainant having a boyfriend at the time. When the accused purchased his house in 2007 the pressure increased. In late 2009 to 2010 the pressure became immense. The accused felt that pressure, particularly given the respect for elders in which he had been raised.
[70] T 277-280.
In late 2010, he was hanging out clothes on his clothesline. As a joke the complainant pulled his pants down - “From then on, things stepped up a notch and we did go inside, and we engaged in some type of sexual acts and that’s when our romantic, you could say, relationship commenced”.[71] He then gave a long answer explaining how he had resisted pressure from both the complainant and her mother.[72]
[71] T 279.
[72] T 280.
The final topic of examination-in-chief related to the text message found on the accused’s phone at the time of his arrest, Exhibit P14. The accused was exchanging messages with his younger brother on 18 May 2016, two days after his own divorce order was made. He was advising his younger brother about an apparent disagreement or separation between his brother and his brother’s partner. The accused said that his reference to “13 plus years” was a typing error.[73] He meant “3 plus”. He meant to refer to the length of their marriage. They married on 17 February 2013. The complainant alleged that they started a sexual relationship in 2001, some 15 years earlier.
[73] T 281-286.
In cross-examination the accused described his marriage to the complainant as an “arranged” marriage.[74] He went on to deny that he had ever loved her in a romantic way.[75] He explained how her mother pressured him into a relationship with the complainant even when the complainant was in a relationship with someone else.[76]
[74] T 295.
[75] T 299.
[76] T 302-303.
The accused said that although he was pressured by the complainant’s parents to let her work in the café, she was only there doing work experience until 2011, that is from 2006 to 2011.
The accused was questioned about his providing police with materials in this matter after he was charged.[77] He said that he went to the Sturt Police Station multiple times. He saw at least four police officers, one of whom was Brevet Sergeant Attard. He went with his mother. In addition, police came to his house.[78]
[77] T 326-334.
[78] T 326-328.
When questioned later about various photos which had been tendered by the complainant and by the accused, the accused expanded upon the topic of his providing materials to the police. At one stage he said that police told him that they were working to assist him to ascertain the truth. They could see that the complainant was fabricating facts. They were siding with him.[79] However, police have now not produced those materials to the court. That is an abuse of process.[80] In re-examination the accused was asked if he is sure that the visits to, and by, the police related to this matter and not another matter. He said he was 100% sure.[81]
[79] T 380.
[80] T 382.
[81] T 455.
The accused said that it was a “known fact” that the complainant’s father was violent towards her. He said he had seen such violence himself. He had seen the complainant’s father grab her by the hair and assault her. It was distressing to see. His own parents tried to deescalate the situation.[82]
[82] T 432-433.
On a number of occasions during his cross-examination the accused referred to the complainant having boyfriends.[83] He said that she was unfaithful to him immediately after they began a sexual relationship in 2011.[84] He also said she was violent towards him.
[83] T 435-436.
[84] T 437.
Evidence of Accused’s Brother AV
The accused’s younger brother AV gave evidence. He is 11 years younger than the accused. He gave general support to his brother’s evidence. Their parents were strict and would not allow girls to visit the house.[85] There were never movie nights at his family house. When the complainant’s brother would visit he and the brother would play video games in his bedroom. The accused never had a computer in his room. The desktop computer he did have was given to him after the accused stopped going to university.[86] The accused did not get a laptop computer until he purchased the café. AV said that he saw the complainant at parties with an older boyfriend called Matt. Matt would drive him between parties and buy alcohol and cigarettes for him when he was underage.[87] He never saw the complainant in the accused’s bedroom. No one but the accused’s older brother was ever allowed in that room.[88] It was a surprise to him that the accused and the complainant got married. He had never seen them as a couple before that.[89]
[85] T 463.
[86] T 464.
[87] T 466.
[88] T 467.
[89] T 467.
In cross-examination AV was asked why he did not correct his brother’s text message referring to his relationship with the complainant over 13 years. He said that he knew it was a typographical error and he was more concerned with his own emotional problems.[90]
[90] T 469-470.
He remembered the accused having a girlfriend with long red hair. He did not remember any other girlfriends but he remembered that girl because she gave him video games.[91] He could not remember her name. He was not asked to identify the people sitting at the dining table in the photograph, Exhibit D13.
[91] T 467-468; 472-473.
AV accepted that in the first trial he had said that the complainant was his brother’s first girlfriend. After the trial his memory of the red-haired girlfriend was refreshed by his mother. When that memory was refreshed he remembered her giving him the video games and being nice to him.[92]
[92] T 473-476.
AV denied the complainant had ever watched movies with him and her younger brother. He said that there might have been occasions when she would come into his bedroom when he and his brother were playing video games, but she would quickly get into an argument with the brother, then their parents, and she would leave the room.[93]
[93] T 478-479.
AV accepted that in the first trial he had said that the complainant would come and watch movies with him and her brother, but he did not mean movies. He meant video games.[94]
[94] T 79-81.
Evidence by the Accused’s Older Brother RV
The accused’s older brother RV gave evidence. He is three years older than the accused.
RV’s attention was drawn to the charged period 2001 to 2005. He was aged between 23 and 28. He said that he spent a lot of that time with his parents and the accused. He had moved out of home at 16 and had a unit in Plympton where he was living with his girlfriend Michelle. Before that, he had not seen a lot of his parents. He had got in with “the wrong crowd” and was “running amok”. He had also had a child in 1997, but had never really had a relationship with the mother.
Although RV was working and living in Plympton in 2001, he often stayed with his parents. From 2002 onwards he was spending more time with his parents. His relationship with his girlfriend Michelle was “rough”. His work changed. That is how he came to be sleeping at his parent’s place. He was sleeping in the accused’s bedroom. He had a child with Michelle in 2006 but he described there being “major dramas” at his unit in Plympton. That is how he came to be spending so much time with his parents. At his mother’s insistence he kept the unit at Plympton even though he was spending most of his time with his parents and Michelle had moved back with her parents. He would sometimes go to the Plympton house to “party”. When asked how many nights he would spend at his parents he said “I was pretty much there solid”.[95]
[95] T 498.
RV said that he slept on a fold out bed in his brother’s room. His brother had a single bed until he got a double bed in 2004 or 2005. He said that his brother was “a good boy” who never got into trouble and was always trying to help him out. They played a lot of 8-ball together and went fishing a lot. He did not remember “too many” of the accused’s girlfriends, but he remembered the Asian girl Amy, and the girlfriend with the long red hair. In the photo of his birthday dinner, Exhibit D13, he thought she was the one with the long hair. His son, who was born in 1997, is depicted standing next to him and the birthday cake.
When the accused purchased the unit they renovated it. He did a lot of the work. His brother was employed as a security guard at the time. The complainant never assisted with the renovations. He thinks he saw her there twice once the renovations were completed. She visited with members of her family in about 2006.
RV saw the complainant sleeping on the lounge in his parent’s house on a couple of occasions in the period 2002 to 2003. That was due to her having arguments with her father.
RV said that he has seen the complainant with “a whole group of her friends” at a park. He said he was once asked by her mother to pick her up from a Hungry Jacks outlet. He did so and found her being hugged by a man. He met that man whom he described as her boyfriend.[96]
[96] T 507-508; 534-536.
RV said that although he had a child with his partner Michelle in 2006, their relationship was strained. His partner pushed him aside when the baby was born so he stayed with his brother for one and a half years when his brother bought his house. He lived there from 2007 to 2009. The complainant started coming around to the accused’s house in 2010 to 2011. She was coming around a lot. “She had just come visit, like visit and shit like that. I found it quite weird actually.”[97]
[97] T 510.
In cross-examination RV said that he had seen the complainant’s father assault her at family barbecues at his parent’s place. “I have seen it, like, him pull her hair, I’ve seen him slap her, I’ve seen all sorts …”.[98] He thought that what he was observing was wrong but his mother would have stepped in. He never discussed this with his parents. “I wasn’t really interested at the time, truly.”[99]
[98] T 521.
[99] T 522.
RV was questioned about what the complainant would do when she visited his parent’s place. He said “… she never used to come round in the rooms, like you’re saying. She’d be hanging around mum bored shitless and, like I said, she wasn’t there much.”[100]
[100] T 527.
Evidence by the Accused’s Mother MV
The accused’s mother MV gave evidence. She said that her family and the complainant’s family were close friends for 20 years. The accused’s older brother, RV, had left home as a teenager but he started staying at her place. In 2003 he moved in. Her husband was home all the time. He received an invalid pension in 2008. Between 2001 and 2005 MV was home all the time. She was not working. She did not have a driver’s licence. She began working in the accused’s café from 2006.
MV said that she and her husband bought the accused’s desktop computer in 1999 but they gave it to his younger brother. There was no computer in the accused’s room in the period 2001 to 2005.
The accused had a single bed in his room until 2005 when he got a queen size bed. She said it was a rule in her house that girls would not go into the boy’s bedrooms.[101]
[101] T 522.
MV confirmed the accused’s evidence that he had an Asian girlfriend called Amy and a girlfriend called Fi. She herself invited Fi to RV’s birthday in 2005.
MV said that up until 2000 the complainant would visit with her mother but after that she saw less and less of her. The complainant might occasionally visit with her mother but she was always with her mother and her during those visits.
MV said that she would see the complainant at the shopping centre with “friends and boyfriends.” She added “I seen them cuddling, giving kiss.”[102]
[102] T 554.
When the complainant would see her, she would run up to her giving her cuddles. She would sometimes ask her for money.[103]
[103] T 555.
The only time the complainant ever visited their house on her own was on two occasions when she was aged 15 or 16. She had had trouble at home with her father and her mother had asked if she could sleep at their place. MV agreed. However, on one occasion the complainant ran away from the house during the night. The second visit was for the same reason. The complainant was going out “with older boyfriends and friends” and her father was furious.[104]
[104] T 555.
The relationship between the accused and the complainant was like brother and sister. They were surrounded by family. They were never alone.[105]
[105] T 557.
In 2011 MV found out from the complainant’s mother that the accused and the complainant were a couple. She knew nothing about it before then. The complainant’s mother told her the story about the complainant pulling the accused’s pants down when he was hanging out the clothes.[106]
[106] T 559.
MV said that it was the complainant’s father’s idea for the accused to buy the café and for the complainant to work in it. The father said he wanted the complainant to become busy so she would not go out with “boyfriends and friends”.[107]
[107] T 560.
MV said that when the accused bought the café she worked in it from the day it opened until 2011. She left in 2011 when she found out that the accused and the complainant were a couple. She wasn’t happy about that so she left. She had worked there for five and a half years. She never missed a day.
MV said that the complainant hardly worked there at all. She described a few tasks that the complainant would perform but she would then leave. She would have friends in the back room. She stole money.
In 2007 the complainant’s mother started working there when the accused became sick. She worked there for two weeks.
MV gave a long explanation about how the complainant came to go to the friend’s wedding with the accused. She was out walking with the complainant’s mother and the complainant. The complainant had had some trouble at home. MV mentioned that the accused’s girlfriend could not go to the wedding. The complainant volunteered to go. She went home and got dressed. When she came to MV’s house, the accused’s girlfriend was there. Photos were taken, including photos of the accused and the complainant but also of the accused’s girlfriend Amy. The accused and the complainant were only at the ceremony for a short while. When they returned her mother was still there. They got into an argument because the complainant wanted to go with “friends, boyfriends”. She was picked up by friends.[108] MV kept the photos from that day but when the accused and the complainant got divorced in 2016 the complainant took the photographs. The complainant ripped up any photographs of the accused’s female friends.[109]
[108] T 563.
[109] T 565.
MV identified the accused’s girlfriend Fi in the photo Exhibit D13, the one from the older brother’s birthday in June 2005. MV remembered the accused had a girlfriend called Amy.
MV was asked whether she ever noticed the complainant with boyfriends. She gave a detailed account of how she met the complainant’s boyfriend Matt before her family went to Croatia in 2002. The complainant introduced him to her. She gave a further account of how the complainant’s father reportedly attacked Matt and broke his car’s mirror. She helped Matt repair it. The complainant told her that she was going to report her father to the police.[110]
[110] T 568-569.
At one stage MV said that she wanted to say something more about Matt, but the accused’s counsel explained he was asking questions on another topic.[111]
[111] T 570.
MV said that when the accused purchased his house in 2007 she visited almost every day. She never saw the complainant there.[112]
[112] T 571.
In cross-examination MV said that she was not happy about the accused’s relationship with the complainant. There was nothing she could do about it.
She said that she rarely saw the complainant after 2000. When she did it was because she was asked to help with trouble in her household. In a long answer she recounted how the complainant told her mother, in her presence, that she thought she was pregnant. Her mother told her to go to the doctor. When the complainant returned from the doctor the pregnancy test was negative. Matt came to the house and they kissed and cuddled. The complainant’s mother yelled at them both. This incident happened in 2003.
MV said that she invited the accused’s girlfriend to come to the birthday meal in 2005. It was put to her that in the first trial she said that the accused never brought a girlfriend to a family function. She explained that since that time they “have found things”.[113] She then gave a long answer about Amy and Fi.[114] She explained how she and the accused had taken “lots of things” to the Sturt Police Station after the last trial. They went five or six times. Police also came to the house.[115] Sometimes they were taken to interview rooms and asked to identify people in photos they were producing.
[113] T 578-579.
[114] T 579-580.
[115] T 580-581.
MV was asked about the photos of the complainant and the accused at the beach, Exhibit P3. MV said that she took the photo of the complainant kissing the accused. The complainant was aged 15 or 16 at the time, although she pointed out that, because of the cap the accused was wearing, it would well be after 2006.
MV then described how in 2016 when the complainant and the accused had divorced, the complainant’s mother came to her and apologised for the complainant cheating on the accused. She said the complainant abused their child.
MV said that it never seemed to her that the accused and the complainant were in a relationship. It was a shock to her when she was told that they were engaged.[116] They never looked happy.[117]
[116] T 682.
[117] T 683.
Brevet Sergeant Attard recalled
In rebuttal, the prosecution called Brevet Sergeant Attard to give further evidence. Through her the prosecution tendered a Centrelink certificate, Exhibit P31, showing that the accused became a recipient of a DSP in April 2021 as a result of anxiety, depression and PTSD.
Brevet Sergeant Attard searched police records and found no record of any visits by the accused or his mother to the Sturt Police Station in relation to this matter. She said she had had no contact with the accused after his arrest. There is a record of other officers attending his address, but it was in relation to another investigation.
Addresses
Ms Litster for Prosecution
Ms Litster submitted that the prosecution relies on the evidence of the complainant being credible and reliable. If her evidence is accepted beyond reasonable doubt, the charge is proved. There is no dispute that at the relevant time the complainant was a child and the accused was an adult. The relationship which was maintained was a familial relationship, but beyond that there is in this case a romantic relationship. The familial relationship is one of a family friendship.
From the age of 13 the complainant developed a crush on the accused and a romantic relationship developed from there.
Ms Litster said that her address would focus on three topics – first the plausibility and logic of the account of the complainant, second the credible manner of her evidence and third the lack of credibility of the evidence of the defence. Ms Litster said that she would conclude with directions of law which I should give myself.
Turning to the account by the complainant, Ms Litster submitted that there was an inherent plausibility and logic in the formation of the romantic relationship and its escalation into a sexual relationship and marriage.
The complainant gave a realistic account of developing a crush on the accused when she became an adolescent in the last year of primary school. The accused reciprocated by paying her attention while going on outings with the younger brothers, outings to the park and on drives. By accompanying her mother on visits to the accused’s mother, the complainant put herself in a position to see the accused. The pair exchanged MSN messages. The complainant gave evidence of the usernames. Their exchanges became progressively flirtatious.
There is a credible account of the thwarted meeting using a friend as cover.
The complainant’s account of the accused kissing her on the drive to the South Road lookout is credible. The complainant was uncomfortable and nervous. She noticed the accused had an erection.
Some of the photos in Exhibit P3 show the complainant in the park on one of the visits she and the accused made with their younger brothers. There the accused asked her to be his girlfriend, although she is not sure it was on the occasion depicted in the photo. Credibly, she said that the accused told her that their relationship had to be kept secret. She was aged 13. He was aged 21.
Credibly their romantic relationship escalated into a sexual one with furtive touching under the blanket on movie nights.
The complainant’s brother said that there were movie nights at the accused’s place, although he said that they took place in the lounge. Nevertheless, RS says that there were blankets on the lounge and during breaks in the films the accused and the complainant would go to the accused’s room. RS also remembered there being a computer in the accused bedroom. A significant detail of RS’s evidence about the computer is that it had a mask on it. Several of the particularised sexual acts occurred under the blanket on movie nights.
The sexual contact escalated into penile/vaginal sexual intercourse in the accused’s bedroom. The boys were asked to leave, and the door was locked. After intercourse the accused asked the complainant whether she was really a virgin because she did not bleed a lot. Sexual intercourse in the various particularised forms occurred frequently.
The complainant gave evidence of how reluctant she was to go to Croatia in 2002 with her family. She did not want to leave the accused. She frequently sent him messages. In those messages the accused returned to the topic of her virginity. Her not being put off by his unpleasant manner credibly reinforces her account of being infatuated with him.
Before the trip to Croatia there is the video footage of the complainant at the singing competition. Notwithstanding that the footage is taken on the complainant’s family’s camera, and was to be taken to show family in Croatia, there is flirtatious behaviour between the accused and the complainant. The relationship began in secret but was becoming more open as time went by.
Ms Litster submitted that the first two photos in Exhibit P3, the ones taken at the beach, were taken by the accused when no one else was around. The first one is obviously a “selfie”. Plainly, it is a photo of the two of them in a romantic interaction. The complainant does not have braces on her teeth. They were put on when she was aged 15 and they remained on until she was 18.
On the complainant’s account the sexual relationship resumed as soon as she returned from Croatia. The complainant’s aunt, ES, noticed how dressed up she was when they visited her house to receive presents. The complainant left to go with the accused.
The sexual activity escalated. The accused would show the complainant pornography on his computer and suggest they mimic what they saw. He used a baseball bat and food items on her in a sexual way. The accused convinced her to engage in anal sexual intercourse. He introduced the family dog in an unsuccessful attempt at bestiality. That allegation is of an uncharged act but is admissible for the non-propensity purpose of explaining the terms of their relationship. It is an inextricable part of the narrative.
Ms Litster submitted that it was significant that the dog was introduced not in the house, where it might be immediately noticed and stopped, but in the detached rumpus room.
The solitary example of violence on the part of the accused is also an uncharged act, but it too is simply a part of the narrative of the relationship. The complainant said the accused slapped her and told her she should not speak to him as she had just done, but the slap was followed by reconciliation and sexual intercourse. It demonstrates that the complainant was willing to yield to the accused and to continue with the sexual relationship. The complainant does not suggest that the accused was otherwise violent towards her. Nevertheless, he exercised a degree of control over her. That too is part of the texture of their relationship.
The complainant’s evidence of her involvement in the renovation of the accused’s unit and working in his café are both examples of the couple making plans for their future together. Although the unit was sold in due course, it was to have been their home. The café was to be their livelihood. The complainant skipped class whist at school to help with the unit. She gave up school to work in the café.
The complainant said that when she discovered she might be pregnant because the accused ejaculated inside her, she went to the doctor to get the ‘morning after’ pill. The doctor’s statement and notes confirms that.
Exhibited photos tendered support the complainant’s evidence about the relationship. The pre-wedding photographs show them as a couple. Significantly, the complainant said that the accused told her to say at the wedding that she was aged 17.
The photos of the two baptisms show that they were together.
The complainant said that she was spending more and more time with the accused. As a result, her schoolwork suffered. Her parents noticed and resisted. Her mother kept questioning her about the time she was spending with the accused. Her father took her to the police but because she would not cooperate nothing could be done.
There developed arguments in the family. The complainant’s mother said the complainant threatened to make up stories about her father. The police report of 18 October 2003 contains the complainant’s allegations of violence by her father. The complainant says she does not remember threatening her parents, but if she did, it demonstrates the lengths to which she was then willing to go to stay with the accused. The complainant says that the accused took her to the police station so she could report her father. That way they would be free of their opposition.
Ms Litster submitted the text on the accused’s telephone on 18 May 2016 supports the prosecution case. His reference to being in a relationship for ‘13 plus years’ is reflective of the true length of the relationship between him and the complainant. The accused’s suggestion of a typographical error is implausible.
There is support from the evidence of the complainant’s aunt, ES, who observed affection between them. To similar effect is the evidence of the family friend JE. They both refer to photos which bear out what they were saying.
JE gave evidence of selling the café to both the accused and the complainant while the complainant was not old enough to contract. The unit was sold in May 2005, just two months short of the complainant’s 17th birthday and the corresponding end of the charged period.
Ms Litster also referred to the evidence of TC who said that the complainant’s father introduced the accused to him as her boyfriend. TC spoke of the accused saying to him about the complainant that he trained her while she was young.
Ms Litster completed her submissions about the complainant’s account by saying it is supported by evidence of other witnesses and exhibits. Together they demonstrate a romantic relationship. The complainant’s own evidence of the sexual relationship has about it a realistic texture which can be accepted beyond reasonable doubt.
Ms Litster submitted that the manner of the complainant’s evidence bespoke her credibility and reliability. I must be in a position to recollect the manner of her giving evidence notwithstanding the delay in completing this trial. I cannot convict if I do not have that recollection.
Ms Litster submitted that the complainant gave her evidence in a straightforward manner which was compelling and clear. It was responsive to questions and was consistent.
Turing to the defence case, Ms Litster submitted that it did not corrode the quality of the complainant’s account. The defence case collapsed under its own weight and should be set aside. It presented a number of implausibilities.
A fundamental implausibility is the accused’s claim that he was not the instigator of the relationship. He was pushed into it and he was unhappy about it when it undoubtedly did happen. The evidence of photos and other peripheral material demonstrates that the relationship began when the complainant was an adolescent.
The accused’s account of relationships with other women at the time is not compelling. He cannot remember details of any of them, including their surnames.
The defence case, looked at as a whole, appears fabricated. While the undue detail in the accused’s evidence does not of itself suggest fabrication, the studied level of detail does.
Ms Litster cited as an example the accused’s logbook, Exhibit D19. Although the book is claimed to be a logbook for the employer, there are gaps in it. Although produced for the employer, the destination of his leave at the time of the complainant’s visit to the doctor is prominent. The notebook has been created retrospectively. The photos of Marion Bay, date stamped at an angle, and said to be taken by one of the Amys, do not support the accused’s case.
The documents purporting to show that the accused would have been working on 18 October 2003, the day of the police report of the complainant’s allegations of her father’s violence, are not supported by evidence that the accused did actually work that shift. There are no payslips.
The accused’s detailed account of his physical disabilities are inconsistent with the work he was undertaking.
The defence evidence about the small size of the accused’s family home and the creaky floor boards do not mean that sexual intercourse could not have taken place undetected.
Ms Litster submitted that I should give myself particular directions of law. I will list them rather than detail them. They are:
There is no evidence of complaint;
Uncharged acts include the complainant’s evidence relating to the dog, and the solitary evidence of the accused’s violence towards her;
Vulnerable witness arrangements;
Forensic disadvantage;
My ability to recall the manner of the complainant’s evidence after a delay; and
Scrutinizing the complainant’s evidence with great care.
Mr McCloud for the Defence
Mr McCloud submitted that the family relationship between the accused and the complainant would be sufficient proof of the relevant ingredient requiring proof of an ongoing relationship during the charged period.
Mr McCloud submitted that the disputed ingredient is the commission of the sexual acts. The accused denies any sexual relationship with the complainant until 2011 or 2012 when she was aged 22 or 23.
Mr McCloud submitted that there are two powerful reasons to acquit the accused, namely, the complainant’s evidence cannot be safely relied on, and the corroborative evidence does not render a sexual relationship more likely.
Examples of the unreliability of the complainant’s evidence are as follows: no one of the complainant’s or the accused’s family or friends saw any evidence of sexual activity. That is despite the alleged frequency of such activity. There are no notes, letters, cards or other mementos of affection. The complainant’s evidence is equivocal and vague. It was inconsistent with other evidence. The structure of the accused’s family house makes detection of sexual activity likely. The complainant’s brother saw no sexual activity on the movie nights. There is objective evidence that the accused did not have a computer at the relevant time. The accused was away on holidays when the complainant says they had sexual intercourse which led her to go to the doctor. As a teenager, the complainant made fake allegations to the police about her father. If those allegations were not false then her denial in court is false.
Mr McCloud expanded upon the deficiencies in the complainant’s evidence. There is no record of the flirtatious exchanges she said she had with the accused when she developed a crush on him. There is no support for her claim that she used a friend as cover for a planned sexual encounter with the accused. The friend was not called, and the mother was not asked about it. There is no corroboration of the visit to the South Road lookout. The complainant’s brother saw nothing of the sexual touching that was alleged to have happened on the movie nights. Her brother said the movies were shown in the lounge room, not the bedroom.
By contrast the accused’s brother said that there were no movie nights.
There are no school records tendered to support the complainant’s claim that she skipped classes to work on the accused’s unit.
The doctor’s notes do not disclose the accused as the person the complainant had sexual intercourse with. The accused’s work records show that he was on holiday at Marion Bay at the relevant time. Amy’s photos confirm that visit. Other photos depicting Amy on that holiday were given to the police but had not been produced in court. The accused’s logbook appears genuine. It cannot have been the accused who had sexual intercourse with the complainant causing her to go to the doctor. The existence and identity of the person who did adds to the problem of the complainant’s credibility.
There is no real detail in the complainant’s account of sexual activity with the accused. She simply says he was her only sexual partner.
The complainant says she could not remember whether the accused wore a condom on the occasion of their first sexual intercourse. The allegation of that sexual intercourse is unrealistically brazen. There was no detail of the first act of anal sexual intercourse which would have been horrific and memorable for someone her age.
Despite the alleged frequency of sexual acts in the accused’s parents’ house, there is no evidence of awkward moments or partial undress. There were no locks on the doors. There was a family in the house.
In relation to the shocking allegation of the accused’s attempt to insert a baseball bat into the complainant’s vagina there is no evidence of injury. There is no evidence of the accused ever possessing a baseball bat.
Mr McCloud submitted that perhaps the most concerning aspect of the complainant’s evidence is the topic of her report to the police on 18 October 2003. She is reported as alleging in some detail assaults on her by her father. She said that the accused had taken her to the police station and put her up to making the allegations. In court she said that those allegations were untrue.[118] That being so, she either lied to the police or is lying in court. The accused has produced credible materials indicating that he was working at the time.
[118] T 136-137.
So far as the report to the police is concerned, the allegations have a ring of truth about them. Both the accused’s mother and older brother say they witnessed such violence.
Mr McCloud submitted that where the complainant’s evidence cannot be collaborated, her evidence should be treated with a great deal of caution.
None of the exhibited photographs demonstrate anything more than a familial relationship. The prosecution witnesses who conclude there was a romantic relationship saw nothing of any sexual behaviour.
When the complainant was recalled to be further cross-examined, she said that the first visit took place a couple of months before she went to the police station on 18 October 2003.
The complainant said that the accused was angry about her father’s interference and that he himself took the complainant to the police station on 18 October. He suggested that she make a report of violence against her father so he could no longer interfere. The accused denies taking the complainant to the police station. He says he was working at the time. He and other members of his family also contend that the complainant’s father was violent towards her. Accordingly, it is not suggested that the report made to the police was untruthful. Instead, the defence submits that the complainant is untruthful when she denied in court that her father was violent towards her. Further, she is untruthful in saying that the accused told her what to say and he took her to the police station.
The report to the police on 18 October 2003 is proximate in time to two other events. On 24 October the accused purchased the unit. The complainant said that the plan was for the couple to renovate the unit and live in it. It was close to her school and she began skipping classes to help with the work. She said that, notwithstanding that the renovation work had to be undertaken, she and the accused had sexual intercourse there.
She says that the day before she went to the doctor on 17 November, they had intercourse in the unit. The complainant remonstrated with the accused for risking pregnancy by ejaculating inside her. In my view, there is persuasive detail in her account of the accused’s response. She had asked rhetorically what would her parents think if she became pregnant. He said she should be more worried about him than what her parents would think. She said that the accused took her to the doctor on 17 November. The accused says he was with Amy at Marion Bay from 12 to 19 November.
There is a photograph which the prosecution suggests illustrates that the complainant and the accused were a couple. It is image number 5 in Exhibit P3. It is a photograph taken by the complainant’s mother outside a singing competition. Apparently the complainant had won the competition. The accused is shown with his arm around her upper waist so that part of his hand is effectively touching the lower part of her breast. She said she was aged 15 at the time.
There is one exhibit tending to support the complainant’s evidence that when she was aged 16 she and the accused were a couple. She turned 16 in July 2004. Exhibit P7 includes two photos of them sitting next to each other at a baptism which was held on 30 April 2005. One photo appears to be in the baptism ceremony, and the other appears to be in a reception or meal.
The complainant turned 17 in July 2005. She left school almost at the end of that year. Evidence of events after that are of uncharged acts of discreditable conduct. I digress to identify uncharged acts and give myself a direction on that topic. Before the complainant turned 17 there were two alleged uncharged acts of discreditable conduct. They are the allegation about the dog being used in sexual experimentation, and the slap that the complainant said the accused administered in the unit. The uncharged acts must meet the criteria provided for in s 34P of the Evidence Act. It is impermissible to use such evidence to suggest that the accused is more likely to have committed the charged offence because he has engaged in discreditable conduct (s 34P(1)(a)). That has been described as “bad person reasoning”.[131] In this case the prosecution does not lead the evidence of any uncharged act for a propensity purpose. It leads the evidence of two events before the complainant turns 17, and the events after she turned 17, to demonstrate the nature of the relationship. The acts are an intrinsic part of what is alleged to be the relationship. It is alleged that the charged acts escalated in a logical way including the two uncharged acts before the complainant was 17. The continuation of the alleged sexual relationship after she turned 17 is an intrinsic part of the history of the whole relationship leading to their marriage in 2013.
[131] R v C, CA [2013] SASCFC 137 at [76].
I find that these uses of the evidence of discreditable conduct have probative weight which outweighs the inevitable prejudicial effect (s (2)(a)). I am able to keep sufficiently separate and distinct the permissible and impermissible uses (s (3)).
The complainant was aged 17 when the accused sold the unit on 13 April 2006 and purchased the café in May 2006. She turned 18 in July 2006.
The complainant said that she and the accused agreed to buy the café to provide themselves with an income. There is support for the complainant’s evidence that the purchase of the café was effectively by them both, albeit that the complainant was too young to enter into the contract. The café was purchased from the complainant’s parent’s friends. The wife, JE, gave evidence of the transaction.[132] JE also said that she had, on earlier occasions, seen the accused and the complainant together at the Croatian singing competitions. They were holding hands.[133]
[132] T 187-188.
[133] T 188.
The complainant said that she left school towards the end of 2005 and worked full time in the café once it had been purchased. The witness, TC, said that she was working in the café in 2006. She and the accused would together purchase stock from his fruit and vegetable store.
The accused purchased his house in February 2007. The complainant said that before that she was living with the accused at his parents’ house. She and the accused moved into the house as soon as it was purchased. She remained living there until the couple separated in 2016. They were married on 17 February 2013, and had their child on 6 May 2014.
The prosecution points to a final piece of objective evidence in support of its case. A screenshot was taken of the accused’s telephone when he was arrested (Exhibit P14). It is an exchange of text messages between him and his younger brother, AV. The exchange took place on 18 May 2016, just after the divorce order was made in respect of the accused’s marriage. In the text messages the accused refers to being with the complainant for “13 + years”. Her name is not mentioned in the text but there is no dispute that she is the person being referred to.
The complainant gave evidence of the gradual development of the romantic, then sexual, relationship between her and the accused from when she was aged 12 or 13. She gave her evidence in a concise, straightforward manner without apparent exaggerations. There was, about the relationship, a compelling logic and texture. Her evidence was supported in some respects by oral evidence of other prosecution witnesses. It was also supported by photos, Exhibits P3, P5 and P7 and other exhibits, Exhibit P11, the doctor’s materials, and Exhibit P14, the screenshot of the accused’s phone.
In my view, the accused was a poor witness who gave an implausible account of his relationship with the complainant. He and his witnesses took many opportunities to gratuitously disparage her. While the accused was extremely discursive in his answers, I do not criticise his evidence on that account, at least not generally. Discursiveness may well be an unconscious characteristic of his, but there were occasions when his discursive answers smacked of deliberate exaggeration and avoidance.
The accused denied a romantic relationship with the complainant. He even claimed that his eventual marriage to her in 2013 was forced on him by her parents. His account of how the sexual relationship began in 2011 is improbable. Without any indication of earlier affection on her part, she pulled his pants down when he was hanging out the washing. They went inside and began their sexual relationship.
The explanations the accused and his mother gave for photos were not credible. They both made claims that they provided the police with many more exculpatory photos and materials which the prosecution have improperly withheld from this trial. Other exculpatory photos were destroyed by the complainant.
Early in his examination-in-chief, the accused gave an extended account of his physical ailments,[134] the evident purpose of which was to demonstrate that he is unlikely to have had a voluntary sexual relationship with the complainant. He said that the main health conditions which qualified him to receive a DSP were chronic gastroparesis, a condition which causes nausea, and congenital hypogonadism, which is a birth defect affecting the testicles.[135] It is agreed that the accused suffers from those conditions,[136] but the certificate from the Australian Government, Exhibit P31, discloses that the accused became eligible for a DSP in 2021 for anxiety, depression and PTSD. The agreed facts, Exhibit D30, include facts about when relevant conditions were and were not reported. I reproduce those facts:
4.He reported to his treating physician between 2010 and 2015 that as a result of his condition, he has a non-existent sex drive, libido, arousal and an inability to gain a spontaneous erection.
5.There are no reports from a medical practitioner of the accused complaining of, or seeking treatment for, erectile dysfunction issues during the period of 2001 to 2005.
[134] T 228-234.
[135] T 30-31.
[136] Exhibit D30 Agreed Facts 1, 2, 6 & 7.
There are examples of exaggeration in the accused’s evidence generally, but in particular in relation to his medical conditions. He was asked whether his psychological problems affected him on a day to day basis. He replied, “you could hand me 10 million dollars right now, I wouldn’t expose myself even in my underwear”.[137]
[137] T 231.
The accused said that, as a result of his medical conditions, he avoided intimacy with women. He said he would withdraw from relationships with women when it looked as if they might become intimate. The longest relationship he had with a woman during the charged period 2001 to 2005 was three months.[138]
[138] T 256-257.
The accused remembered the girlfriend Fi, and he pointed her out in the photo of his brother’s birthday dinner in 2005. He said the photos of the Asian Amy at the pre-wedding and Marion Bay had either been destroyed by the complainant or given to the police. He remembered two other Amys as well. He could not remember any of their surnames. While I think that the accused’s account of girlfriends lacks credibility, I do not necessarily reject his account of being reticent about intimacy with women his own age. However I do not accept his evidence, and that of his witnesses, that he had girlfriends other than the complainant in and after the charged period. The woman identified in Exhibit D3 may be called Fi and she may once have been a friend of the accused’s, but I reject the defence witnesses’ evidence that she was his girlfriend at the time. The accused’s mother said at the first trial that the accused had not brought any of his girlfriends to family functions.[139]
[139] T 578.
What the accused’s mother said in this trial is inconsistent with what she said in the first trial, but the evidence in the first trial is not evidence in this. The inconsistency may only be used to adversely affect the credit of the accused’s mother.
I reject the accused’s evidence and that of his mother that they took photos and other materials to the police five or six times after the accused had been charged. While police records can be deficient, Detective Attard said that there is no record of there ever being such events. It would of course be highly improper for the police to seek, even receive, materials from a charged accused without disclosing them. It is highly unlikely that, as the accused claims, the police were seeking information from him to disprove what they told him were lies being told by the complainant. It is also highly unlikely that four police officers, including Detective Attard, were involved.
While I accept that the accused is at a significant forensic disadvantage in accessing photos and other evidentiary material, and in contacting former girlfriends after so long a delay in this trial, I reject the evidence of the accused and his witnesses about the girlfriends during and after the charged period.
The accused sought to cast doubt on the complainant’s evidence that he had taken her to the police station on 18 October 2003, and to the doctor on 17 November 2003. He produced materials in support. In my view the materials do not have the strength attributed to them by the defence.
In respect of 18 October 2003, the accused says he was working. He produced a letter from his employer dated 11 August 2003, Exhibit D22, confirming that he would take a replacement work shift on Saturday 18 October. The roster, Exhibit D23, shows him rostered to work from 7:30 am to 6:00 pm on that day. The report to the police was made at 5:27 pm that day. The accused was not able to produce payslips, or any other evidence, that he actually did work that day, or that he worked those hours. I bear in mind his forensic disadvantage in that respect.
Concerning 17 November, the accused produced a letter from his employer dated 31 October 2003 foreshadowing that he would be on leave from 12 to 19 November, inclusive, with a reference to his proposed visit to Marion Bay, Exhibit D20. There is also a roster, Exhibit D21, showing he was on leave for that period. He has written ‘Marion Bay’ over those days. He has produced what he describes as an employer’s log but which is in fact an exercise book in which he has written various shifts he was working at the time.
There were produced two batches of photos purported to have been taken at Marion Bay at the time. They are Exhibits D16 and P25. The accused says that Amy took those photographs. The originals were given to the police but not now disclosed. It was put to the accused that he has himself put the relevant date stamps on the photos in an effort to prove their provenance. The accused denied that. Questions are not evidence, but it can be seen on the two photos of the accused depicted on a jetty, one in Exhibit P25 and one in Exhibit D16, that the date stamps are in slightly different positions. The photos appear in every other respect to be identical. The date stamps are 16 November 2003. That is the date on which the complainant says the accused had intercourse with her in the unit causing her to fear pregnancy and go to the doctor the following day.
While acknowledging the accused’s forensic disadvantage on this topic, that is, the difficulty in locating Amy, I do not find that these materials cast reasonable doubt on the complainant’s evidence on this topic.
The accused distanced himself from the complainant during the charged period and up to 2011, when he said their sexual relationship began. He said that he had no idea that she had a crush on him. Their paths crossed rarely in the charged period. The complainant would visit his house, but with her mother, and would spend time with her in their house. The accused was often not present when they visited. The complainant had nothing to do with the renovation of the unit. Her parents pressured him into letting her work in the café, but when she did work there she was only doing unpaid work experience. That was the position until 2011.[140]
[140] T 306.
The accused took many opportunities to besmirch the complainant. She was often in relationships with other males.[141] He besmirched her father and the witness, TC.[142]
[141] T 303, 352, 357, 435-437.
[142] T 315-321, 430-434.
He said he was increasingly pressured reluctantly towards a relationship with the complainant by her parents. His parents were not happy about that pressure but he gave into the pressure from her parents.[143] The complainant had only moved in to live with him in May 2012. Before that his brother lived with him, at least from 2007 to 2009.[144] He never loved her and she never loved him. It was an arranged marriage.[145]
[143] T 362.
[144] T 363.
[145] T 295.
The accused’s explanation for his text message to his brother on 18 May 2016 is not credible. His suggesting the reference to loving the complainant for “13 + years” as a typographical error is not credible. His explanation for saying that he loved her in a caring way is likewise not credible. He said he meant it as a family friend. On that basis he “would … if needed give up a kidney for her …”.[146] In my view, that is a disingenuous diversion.
[146] T 298.
The accused’s explanations for the photos are elaborate attempts to distance himself from the complainant. The beach photograph, Exhibit P3, is not a selfie taken by him but taken by his mother. The complainant’s actions in kissing him are those of a family friend. Other people were there but photos of them have either been destroyed by the complainant or given to the police.
The pre-wedding photos in Exhibit P3 were staged at the direction of the complainant’s mother. Other photos showing Amy have not been produced. Photo number 5, showing the accused with his arm around the complainant and touching part of her breast, was taken by the complainant’s mother and is staged for her benefit.
The video at the singing competition, Exhibit P5, was directed by the complainant’s father to the accused’s growing annoyance. The accused’s voice should not be interpreted as flirtatious. The photos in Exhibit P7 do not demonstrate that he and the complainant were a couple.
The accused’s mother was plainly partisan. It is understandable that she should be so, but the exaggerated praise for her son, and the vitriol directed towards the complainant, seriously detract from her credit.
Understandably, she said that the accused “is everything” to her.[147] The accused always behaved towards the complainant as a brother might a sister, but they were never alone.[148] She was surprised and disappointed in 2011 to discover that they were in a relationship. She was shocked when they announced their engagement. They were never happy.[149]
[147] T 595.
[148] T 557.
[149] T 602-603.
She took many opportunities to besmirch the complainant. Repeatedly she referred to her as having “friends and boyfriends”.[150] She went into considerable detail about the supposed boyfriend Matt. He was the one who caused the complainant to go to the doctor. She saw the complainant and Matt kissing and cuddling.[151] She volunteered that evidence early in her cross-examination after saying towards the end of her examination-in-chief that she wanted to say something more about Matt, but was deflected from doing so by defence counsel.[152]
[150] T 554, 560.
[151] T 575-576.
[152] T 570.
The accused’s mother volunteered that the complainant was unfaithful in her marriage and did not look after their child properly.[153] She stole money from the café. She was trouble at the shop.[154]
[153] T 600.
[154] T 561.
MV went into much detail in support of her son’s account of the relevant photos and the delivery of materials to the police.
The accused’s brothers adopted a similar tone. They supported their brother in material respects, but displayed antagonism towards the complainant.
The younger brother, AV, claimed to know something of the complainant’s boyfriend Matt. Matt would drive him around and purchase for him alcohol and cigarettes.[155] The complainant was always getting into arguments with her brother.[156] He never realised his brother and the complainant were a couple until they got married.[157] AV did not remember saying in the first trial that the complainant was the accused’s first girlfriend.[158] He had forgotten about the girlfriend Fi until his mother later reminded him.[159] AV denied that the complainant ever watched movies with him and her brother, but he appears to accept that he said she did in the first trial. He said that if he mentioned movies in the first trial he meant cartoons or Playstation.[160]
[155] T 460.
[156] T 467.
[157] T 467.
[158] T 474.
[159] T 478.
[160] T 480-481.
The accused’s older brother, RV, also generally supported his brother’s evidence. He put himself in a position to contradict the complainant having an opportunity to be with the accused. He slept in the accused’s bedroom from 2000 occasionally, and full time from 2003. He did all the renovations at the unit. The complainant was never there. He lived with his brother for two years when his brother bought the house. The complainant only started visiting much later.
He, too, gave details about the complainant’s boyfriend. He was once asked by the complainant’s mother to collect her from McDonalds, which he did. There he saw her hugging her boyfriend. Whenever the complainant visited their house she was bored. She hated being there.[161]
[161] T 527.
I do not accept the evidence of the accused and his witnesses in material respects. However my rejection of their evidence does not assist in proof of the prosecution case. I put aside their evidence but I must return to the prosecution witnesses to determine whether or not I am satisfied beyond reasonable doubt of the complainant’s evidence. It is her evidence on which the prosecution case rests. It is satisfaction of her evidence which is required if there is to be a finding of guilt.[162]
[162] Liberato v The Queen [1985] HCA 66, (1985) CLR 507.
I am so satisfied. For the reasons I have already mentioned, I am satisfied beyond reasonable doubt of her evidence in material respects. I find that the accused did commit two or more of the particularised sexual acts. I find he committed all of the acts particularised from paragraphs (a) to (i) inclusive, more than once. In respect of particular (j), I am not satisfied that the completed act of insertion of the baseball bat occurred. The complainant’s evidence falls short of saying that penetration occurred.[163] I accept her evidence that he tried. I find that particular not proved. I find the other ingredients of the charge proved beyond reasonable doubt.
[163] T 69-71.
Application for Revocation of Election for Trial by Judge Alone
On 12 August 2022 the accused filed an application for revocation of his election for a judge-alone trial.
I heard submissions on that application on 15 August 2022 and declined to give leave. I was advised that the accused had applied for a judge-alone trial on 1 June 2020, and had received advice as to his right to do so by Mr Anthony Allen QC, as he then was.
Before me Ms Armstrong had submitted that since making the election the accused had instructed four counsel. The way in which the trial was now going to be conducted had changed. Ms Armstrong submitted that following the unsuccessful jury trial the accused wanted the re-trial to be different. He elected for a judge-alone trial against counsel’s advice. He has now received further advice and “he realises that it wasn’t something he wishes to have been done”.[164] No details were provided.
[164] T 4.
In my view that submission does not disclose sufficient reason to grant the application.[165]
[165] Hall v The Queen [2021] SASCFC 16.
Application for recusal
On 21 October 2022 the accused made application for me to recuse myself. I heard submissions on the application on 3 November 2022. The grounds for the application were that, as a result of my conduct in pre-trial hearings on 8, 9, 10, 12, 15, 16 and 17 August 2022 there arose an apprehension that I might not bring an impartial mind to the trial.
On behalf of the accused, Mr McCloud submitted that there were two bases for the application.
The first was that in the proceedings on the nominated dates I had exhibited an increased level of frustration about the history of the matter. It is true that the matter has had an unfortunate history.
It appears from the prosecution’s written summary that before I became seized of the matter in March 2022, there had already been some delays. This matter is a re-trial following the overturning by the Court of Criminal Appeal of a conviction in August 2019.
The first date for a re-trial on 16 November 2020 was vacated for COVID reasons.
The second date of 11 October 2021 was vacated because Mr Anthony Allen QC, as he then was, was given leave to withdraw as counsel because he considered that he was not in a position to act for the accused.
On 22 March 2022 Mr Coates applied to be given leave to withdraw, indicating that he was not in a position to act. I sought no explanation about why that was so. I granted leave.
In due course the trial was relisted to commence before me on 8 August 2022 with Mr Charman as counsel. On that day Mr Charman applied to withdraw as he did not consider he could continue to act. The Legal Services Commission also applied to be released as solicitors. I granted leave to both. I sought no explanation for the applications.
On 10 August 2022 Ms Armstrong appeared for the accused and applied to vacate the trial date on the basis that she had not had adequate preparation time. She had no instructions from the accused.
On 12 August 2022 the accused filed an application to revoke his election for a judge-alone trial. I declined that application on 15 August 2022. On that day counsel indicated that the accused was unwell, and not fit to give instructions. She produced a medical certificate to the effect that he was unfit for work.
I directed that the trial commence on 16 August 2022. I had suggested mechanisms to give counsel time to take further instructions. I suggested that we might proceed as far as the end of examination-in-chief of the complainant then allow time for Ms Armstrong to prepare for cross-examination. Ms Armstrong said that she was not necessarily opposed to that and if she needed extra time she would ask for it. I was surprised that Ms Armstrong was not in possession of any instructions from her client.
On 16 August 2022 the prosecutor opened. Ms Armstrong said that she was unable to get instructions from her client about whether she should address me on the issues in the trial. She told me that she still had no instructions at all. She could not tell me when she expected to have instructions. She said she wanted to obtain advice from senior counsel. I adjourned to the following day.
On 17 August 2022 Mr Algie QC appeared amicus curiae. He applied to have the trial date vacated. I sought to find out the reasons for the application, suggesting that the reasons might determine the appropriate course to take. The reason given was that defence counsel was without instructions.
I vacated the trial date. I ordered a psychiatric report on the accused’s fitness to stand trial pursuant to s 269WA of the Criminal Law Consolidation Act. I adjourned the trial to 28 November 2022. The psychiatric report said that the accused was fit to stand trial.
The principles to be considered on an application for recusal have recently been discussed in QYFH v The Minister for Immigration,[166] and earlier by King CJ in Hinton v Mill.[167] A judicial officer should decline to sit in a case where, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the officer might not bring an impartial and unprejudiced mind to the decision in the case. The test is not a subjective one. It is objective. The judicial officer should not, by words or actions in a trial, give rise to a reasonable suspicion that he or she might have a closed mind to the issues in the trial.
[166] QYFH v The Minister for Immigration [2023] HCA 15.
[167] Hinton v Mill (1991) 57 SASR 97 at [99]-[100].
I concluded that my conduct in the pre-trial hearings did not give rise to a reasonable suspicion that I would be unable to bring an impartial and unprejudiced mind to the decision in the case. I so ruled.
I did so on the basis that I considered I was doing no more than was necessary and reasonable to progress this trial which had had a lengthy history of largely unexplained delays.
The second ground for applying for my recusal was that I had heard on a voir dire objections to evidence the prosecution proposed to lead. The prosecution proposed to lead evidence that the accused had attempted some sexual experimentation with the complainant using his family’s dog. I ruled that that evidence was admissible as part of the alleged escalation of sexual behaviour on the part of the accused towards the complainant. In my view it is not uncommon for judges hearing a trial without a jury to determine pre-trial matters. I declined to recuse myself.
Verdict: Maintaining an Unlawful Sexual Relationship with a Child – Guilty.
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