R v W, AJ - [2019] SADC 172

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, AJ
Criminal Trial by Judge Alone
[2019] SADC 172
Reasons for the Verdict of His Honour Judge Cuthbertson
22 November 2019
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Trial by Judge alone. Accused charged with one count of Maintaining an Unlawful Sexual Relationship with his step-daughter between 31 July 1977 and 31 July 1982. Evidence of first complaint made to mother in 1982. Whether evidence of first complaint admissible.
Held: Evidence of first complaint is admissible.
Verdict: Guilty of Count 1.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 s 50; Evidence Act 1929 ss 34CB, 34M, referred to.
Barry v Police (2009) 197 A Crim R 445; R v Landmeter [2015] SASCFC 3; R v J, JA (2009) 105 SASR 563; R v S, DD (2010) 109 SASR 46; R v Szenjnoga (1988) 199 LSJS 97; R v Maiolo (No 2) (2013) 117 SASR 1, considered.

R v W, AJ
[2019] SADC 172
Introduction

This verdict follows a trial by Judge alone; the accused having made an election pursuant to s 7 of the Juries Act 1927 (SA) for a trial by a judge sitting without a jury.
The accused is charged on an Information dated 21 September 2018 with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W, AJ between the 31st day of July 1977 and the 31st day of July 1982 at Whyalla Norrie, Brompton and Elizabeth Field, maintained an unlawful sexual relationship with J M (formerly JSW) a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a)putting his penis in her mouth on more than one occasion;
b)causing her to touch his penis on one or more occasions;
c)touching her vagina on one or more occasions; and
d)masturbating himself in her presence on one or more occasions.
Maintaining an Unlawful Sexual Relationship with a Child
The offence charged consists of four elements, each of which must be proved beyond reasonable doubt.[1]
1.   The accused must have been an adult at the time of the alleged offending. (The accused was born on 18 July 1955.[2])
2.   The complainant must have been under the age of 18 throughout the period in which the offending is alleged to have occurred. [3] (The complainant was born on 31 July 1974.)
3.   The accused engaged in two or more unlawful sexual acts with or towards the complainant within the charged period.
4.   A relationship existed between the accused and the complainant outside of the two or more unlawful sexual acts. (There was no dispute that, during the relevant period, the relationship that existed was also one of step-father/step-daughter.)
[1]   R v M, DV [2019] SASCFC 59.
[2]   Agreed Fact 1.
[3] Criminal Law Consolidation Act 1935 s 50(12).
The trial proceeded with only the third element being in contention, that is, whether or not there were two or more sexual acts committed with or against the complainant by the accused.
The offences which the prosecution say are particularised in the information are, for (a), unlawful sexual intercourse, for (b) and (c), an act of indecent assault, and for (d), an act of gross indecency.
Unlawful Sexual Intercourse
In addition to the complainant being under 17 years of age, the prosecution must prove that an act of sexual intercourse occurred. Sexual intercourse includes the voluntary and intentional penetration of the mouth by the accused’s penis. Consent is not an issue as no-one under the age of 17 years may consent to sexual intercourse.
Indecent Assault
An indecent assault is an assault accompanied by, or in circumstances of indecency. An assault requires a voluntary and intentional application of force without lawful excuse. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. In addition to an assault, the prosecution must prove that the assault occurred in circumstances of indecency. Consent is not an issue as no one under the age of 17 years can consent to an indecent assault
Gross Indecency
The prosecution must prove the following elements beyond reasonable doubt:
1.The accused did the act alleged.
2.The act was a voluntary and intentional act.
3.The act was indecent.
4.The act was done with or in the presence of the complainant. Her consent or absence of consent is immaterial if she is under the age of 17 years and the act in question is indecent.
5.The indecency was such that it might be described as gross.
General Directions
I remind myself of the directions which are essential to the determination of this matter. They are as follows:
1.   The accused is presumed innocent unless and until his guilty has been proven beyond reasonable doubt;
2.   The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence.
3.   The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4.   The accused did not give evidence in this trial. He was not obliged to say anything. I must not draw any inference adverse to the accused that he did not give evidence, as it is his right to do so.
5.   I remind myself that it is not a question of preferring or accepting one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charge beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
I note that in this matter, the prosecution case rests almost solely on the evidence of the complainant.
6.   The charges relate to a five-year period commencing over 40 years ago. The accused therefore faces a forensic disadvantage in presenting his case. He may be disadvantaged because he may be unable to recall the periods in which he was residing at a particular address, or working in a particular position, which might assist him in preparing a defence. Similarly, other potential witnesses would have the same issue with recollection of particular events, and some witnesses may no longer be alive to give evidence as to particular dates, locations and events. For example, the complainant’s mother would have a better memory of the relevant period and the accused’s movements during this time. I am to have regard to the forensic disadvantage and take particular care in scrutinising the complainant in determining her reliability and credibility and the truthfulness or otherwise of her evidence. (See Evidence Act 1929, s 34CB(2)(b))
Prosecution Case
The accused and the complainant’s mother, SE, were married in 1976 and remained so until about 1982. Between the ages of 3 and 8, the prosecution alleges the complainant was subjected to regular sexual interference by the accused. This would routinely occur in the complainant’s bedroom, with one occasion occurring in the shower.
As to the offending in the complainant’s bedroom, the prosecution allege that the accused would come into the complainant’s bedroom at night, he would tell her to be quiet, he would put his penis in the complainant’s mouth and would ejaculate inside her mouth. On occasion, he would also masturbate himself or rub his penis on the outside of the complainant’s vagina during this process.
The alleged offending occurred at the family homes in Whyalla Norrie, Brompton and Elizabeth Field.
The Prosecution case is that the offending ceased at the time the complainant made an initial complaint to her mother in 1982, at which time she and the accused separated.[4]
[4] T47.
The complainant
The complainant was 45 as at the time of the trial. Her first recollection living with the accused was in Whyalla. She lived with her mother, the accused and their children, the complainant’s two half-brothers, M and J. During her childhood she said she recalls living in Truro, Kapunda, Hindmarsh and Elizabeth Fields. She said that the accused lived with the family at most of these houses. She drew plans of the layout of the houses at Whyalla and Elizabeth Fields which were tendered as Exhibits P1 and P3.
During the relevant time, she said she recalls attending Nicholson Avenue Kindergarten in Whyalla, Hindmarsh Junior Primary School for reception or year one, Elizabeth Field Primary School in year two and part of year three, Gilles Plains Primary School for the remainder of year three before commencing year four at Modbury Primary School. A photo booklet, which the complainant said was given to her by her year three teacher at Elizabeth Fields Primary when she was eight years of age, was tendered and is Exhibit P2. The complainant said that this was in 1982, which she said was the year that the accused moved out of the family home.
The complainant said that from when she was very young, the accused would put his penis into her mouth and ejaculate in her mouth. She said the accused would sometimes masturbate on top of her or put his penis on the outside of her vagina. He would also make the complainant touch his penis with her hands. This would usually happen at night in her bedroom. She said that she did not initially understand what the accused was doing at the time, but as she got older she realised it was ‘not okay’.
She said that the interference was happening when the family lived in Whyalla. She said she is able to remember this because she recalls several events which occurred whilst she was in Whyalla. She said she remembers having a dog, Snoopy, who was run over and died when she was living in Whyalla and going to kindergarten. She also said she recalls having her ‘four-year-old injections’. Finally, she said she remembers her brother, J, having a heel-prick test shortly after his birth in 1979. She was unable to say whether the abuse she remembers occurred before or after the other memories, other than to say it all occurred around the same time.
The ‘squishy thing’ incident
The complainant says that she remembers an occasion in Whyalla when the accused came into her room at night time and put his penis in her mouth and around her vagina. She said she recalls feeling something squishy in her vagina, which she held in between her fingers. She said she couldn’t work out what it was and she dropped it. She said that this incident occurred around the time Snoopy was run over.
At Whyalla, she said her mother would be in bed when the abuse occurred. She said the accused would shut the door behind him after coming into her room. She said he would normally be wearing jeans and a belt with a t-shirt. She said he would take off his belt sitting on her, and ‘pull his jeans down a bit’. On occasion she said that he would pull his jeans off completely. She said the accused would tell her to be quiet or ‘shoosh’ or her mother would tell her off and she would be in ‘big trouble’. She said that the accused would say this often, because she would sometimes wake up to the accused forcing his penis into her mouth. She said that the acts would happen weekly whilst the family lived in Whyalla.
The pillow incident
The next incident the complainant said she recalls in detail is an incident where the accused put a pillow over her face and she couldn’t breathe. She said she woke up with the accused’s legs over her waist or chest. She said that, by this stage, she had become a little more rebellious, and was fighting a little. She said she remembers that she started to cry, so the accused put the pillow over her face until she had calmed down. He then took the pillow from her face and put his penis in her mouth. She said the accused said ‘Good girl, shoosh’. She said that he masturbated a little before putting his penis in her mouth. She said his penis was in her mouth until he ejaculated, and that she always had to swallow the ejaculate because she wasn’t allowed to spit it out. She said that, after the accused left, she would lick her pillow case to get the taste out of her mouth, although she said she does not recall doing so on this occasion. She did not recall where the house was located, but said that it was at a house between Whyalla and Elizabeth Field. This is the only memory she has of sexual abuse occurring at this house.
The complainant said that the abuse continued, and was more frequent at the Elizabeth Fields house. She said abuse continued to occur predominately in her bedroom, with the exception of one occasion, which she said, occurred in the shower. She said that it was usually dark in the bedroom, but sometimes there would be some light coming through from the neighbour’s light or a streetlight nearby.
There were two occasions which the complainant said stood out in her mind at the Elizabeth Field address.
The ‘ew yuck, wee’ incident
This occasion occurred in the complainant’s bedroom. She said the accused walked into her bedroom at night. She was pretending to be asleep. She said the accused forced his penis into her mouth, past her teeth and ejaculated in her mouth. She said that it was smelly and hot and she remembered saying ‘Ew yuck, wee’ to which the accused replied, ‘It’s not wee, don’t worry’. She said she remembered being relieved that the liquid was not urine.
The complainant said she was in year 3 at Elizabeth Fields Primary School at this time, and was seven or eight years of age.
The shower incident
The complainant described this occasion as follows:
Q.You've told us that there was or there was at least an occasion that something happened inside the bathroom.
A.Yes. In the shower. I remember being in the bath - the shower was in the bath at Elizabeth Fields and I remember being in the bath with A and he put his penis in my mouth while the shower was running over my head. I remember it because I couldn't breathe with all the water running and his penis in my mouth. I just found it quite confronting and hard to breathe and it was scary.
The complainant was unable to say who, if anyone, was at home at the time, or at what time of day the incident occurred. However, she said that she thought it was about the same time as the ‘yuck, wee’ incident.
She said that whilst living at Elizabeth Fields she became more confident. She said that this led to her rebelling to some extent, in that she would pretend to be asleep when the accused walked in to her room, and she would speak out when she was worried, such as during the ‘ew yuck, wee’ incident. However, she said that she was still too scared to leave her room to get a drink afterwards for fear of getting into trouble, and would inevitably resort to licking her pillowcase to get the taste out of her mouth. She said the accused would say things like Shoosh, don’t tell your mum or you’ll be in big trouble’ and ‘Good girl, go back to sleep’.
Complaint and separation
The complainant was unable to recall when she thought the abuse ceased. She said that the accused and her mother had separated by her eighth birthday. She said that there was an incident which occurred when she was almost eight at the Elizabeth Fields house when her mother walked into her bedroom to find AW, the accused’s nephew, lying on top of her ‘role-playing mums and dads’. She said that AW, who was about 12 at the time, was lying on top of her and trying to put his penis in her vagina. She described the incident as follows:
Q.    Did you have clothes on.
A.    I can't remember.
Q.    What about AW; did he have clothes on.
A.    I can't remember if we just had our tops on and we pulled our pants down.
Q.    Was your AJ there.
A.    Yes.
Q.    And did you have a conversation with your mother after that.
A.    Yes, my mum asked me where I had seen that kind of behaviour, that thing before.
Q.    I know it is a long time ago now -
A.    Yes.
Q.- but can you tell his Honour, as best you can, what she said in terms of her words if you can remember.
A.    Yeah, my mum said 'Where have you seen this before?' and -
Q.    Did you say anything in response.
A.Yes, I said 'Daddy does this to me'. And she said 'Which one?' and I said 'Daddy at home here' because my biological father didn't live with me so I was talking about A but I called him 'daddy' back then.
Q.    Did you say anything else to her -
A.    No.
Q.    - at that stage about what had happened.
A.    No.
The complainant said that the accused and her mother separated after this incident.
Importantly, the complainant said that the accused would put his penis on the outside of her vagina.[5] The description of AW trying to put his penis in the complainant’s vagina is essentially the same as this, except that it includes describing what she thought was AW’s intent. It is not evidence as to the truth of the statement but it does demonstrate some consistency.
[5] T36L16.
The complainant first reported the matter to police in 2004, just before moving to England. She said she was told that, as it was a historical matter, it would be hard to prove. She again made a report to the police in 2013 with the assistance of her university lecturer. She said she made a statement on each of these occasions. Again, this is only evidence as to how the matter came to be investigated, and is not evidence of the truth of what has been said.
SE
SE is the complainant’s mother. In large part, her evidence was consistent with, and supported that of the complainant. She was unable to remember much of what was put to her throughout her evidence. For example, she was unable to remember whether the accused ever put the complainant to bed.
She confirmed that during the relevant period the complainant had her own bedroom. She said that the complainant started kindergarten in Whyalla when she was about four. Her evidence largely supported the sequence of houses given by the complainant, as well as the schools she attended.
SE said that she worked at The Advertiser for a period of time when the family lived at Elizabeth Fields. She said that her shift was on Friday nights from about nine or 10 o’clock until five or six in the morning. She said the accused would look after the children for that time.
SE gave the following evidence about the initial complaint made by the complainant:
Q.Was there a time at Skewes Street where you spoke with [the complainant] as a consequence of something that might have happened between her and one of her cousins.
A.Yeah, I can't remember the exact what happened. Her cousin AW was there and they were in the bedroom together and it was something - I think they were seeing what each other had and then -
HIS HONOUR
Q.    What do you mean 'seeing what each other had'.
A.I think they were pulling their knickers - what I can remember - pulling their knickers down and having a look at their private areas, yeah.
XN
Q.    And did you see that happen.
A.    No, I didn't see that.
Q.    Does A have a sister whose name is J.
A.    He does.
Q.Was there an occasion where J was at home at Skewes Street with you and [the complainant] and AW where you confronted [the complainant].
A.Yeah, I asked her - I can't really remember what happened that led to it - I just said 'What's going on?' and she said 'Daddy and I have a secret secret', just those words.
Q.    And at that stage are you able to say who was at home.
A.    All I remember is just myself, [the complainant], the boys and J.
Q.    What about Alan, where was he at that stage.
A.    I don't know.
Q.    Are you able to say.
A.    I don't know where he was.
Q.    Did [the complainant] say anything further to you at that stage.
A.    Not that I can remember, no.
Q.    Did she describe any acts happening at that stage.
A.    I can't remember.

SE confirmed that she took the complainant to the doctor following the complaint. She said she did this because the complainant told her that ‘Daddy and I have a secret secret’ which she took to be a reference to sexual assault. However, she could not recall details of the examination. She said that she and the accused separated straightaway. Under cross-examination she said that after the examination, the doctor said to take the complainant home, let her get over it and she’ll forget about it’.
The complainant’s mother’s reference to the complainant saying that ‘Daddy and I have a secret secret’, tends to confirm that the complainant thinks something improper has been going on between her and the accused, and shows she has no intention to implicate him as one might expect if the allegations were false.
I don’t think that the difference in the account of what was said by the complainant and her mother betokens inconsistency thus telling against the complainant’s credibility.
Detective Brevet Sergeant Clonan
The final witness for the prosecution was the investigating officer, Detective Brevet Sergeant Clonan. He became involved with the matter in 2014. He confirmed that reports had been made by the complainant in 1998, 2003 and 2014. Between 2003 and 2014 the case was filed, due to the complainant not being available as she was overseas.
The witness met with the accused on 29 April 2017 and conducted a recorded interview with him, at which time the accused was first informed of the allegation against him.
Record of Interview
As noted by Kourakis J (as he then was) in Barry v Police,[6] self-serving statements made by an accused are admissible, and have probative value, only when introduced as part of the “Crown package”. The statement was not sworn or affirmed.
[6] (2009) 197 A Crim R 445 at [67]-[68].
The interview contained a number of exculpatory statements made by the accused. I do not accept the accused’s exculpatory statements, but I would still need to be satisfied as to the accuracy and truth of the complainant’s account beyond reasonable doubt in order to find the accused guilty.
The accused told police that the circumstances of separation between he and the accused were ‘good and bad’. He said that he stayed in contact with the family after he left, and continued to have visitation rights with the children before he moved away. He said that, as far as he knew, there was no specific incident that could have attributed to the separation. However, when asked about the allegation made against him, he conceded that that was ‘one of the reasons that I was separated according to the mum.’ He said he gave permission to the complainant’s biological father to take the complainant to the doctor for an examination.
The accused then said that he was asked to leave immediately after the complaint was made. He said he was told ‘straight out’ to not come home again because he ‘had been having it off’ with the complainant. I have not used this as evidence against the accused.
As I mentioned, the accused denied each of the allegations that was put to him. He said he did not remember doing anything of that nature because he never did it.
When asked about the pillow incident, the accused said that the complainant would sometimes get stuck under the sheets. He said that her mother would go in there. He said that he would sometimes go in there if the complainant’s mother wasn’t around, but that the only time that he was alone with the complainant was when M was born, which was in Elizabeth, just after the couple first got together.
The accused denied the offending at Elizabeth Fields, saying that that was where he separated.
When asked about the incident in the bathroom, the accused said that he only ever had a shower with J once. He said he had clothes on, and then said that he did not actually have a shower with the complainant, but was instead just in the bathroom. He then said that he went into the bathroom, as he had to get something out of there, and did not realise the complainant was in the shower at the time. He said that he didn’t see the complainant, nor did he hear her in the shower. He then said he might have heard her but didn’t see her. He then said that it was more than possible that he was in the shower with her. He then said he has never had a shower with her.
The accused said that it was likely that the complainant had seen his penis as he walked around the house naked. He said that he is circumcised and had pubic hair at the time of the alleged offending, but that it is unremarkable that the complainant knew of this. He confirmed that all he ever wears are denim jeans with a belt.
He denied having a sexual attraction to the complainant or children generally. He said that it was possible that the complainant had seen him masturbating, as he would do so ‘only if I hadn’t had sex off the wife for a while’.
At the conclusion of the interview, the accused was reported for the present offending.
Defence case
The defence called no evidence. That fact is not to weigh with me in my decision making.
I reserved my decision after hearing closing submissions of counsel.
Complaint evidence
The prosecution opened by addressing two complaints made by the complainant. The first was to her mother, as described above. The second was to the complainant’s school friend. There was some doubt as to whether the second complaint was an elaboration of the first following what fell from the complainant’s evidence. Ultimately, the prosecution resolved to simply lead evidence of the first complaint, and it was on that basis that the prosecution made closing submissions. I accepted evidence of the first complaint de bene esse and heard submissions on its admissibility at the time of closing submissions. Further written submissions were made following the conclusion of the hearing.
Defence counsel submits that the evidence of the first complaint is inadmissible as it does not equate to a complaint relating to any allegation in this trial, in that it does not relate to the particulars of the charge. Indeed, there is no precise evidence about any particular act being complained of or described of.
Accepting the complainant’s evidence on this topic, which I do, the crux of the complaint was that the complainant was saying ‘This is what Daddy does’ when her mother walked in on her and AW lying on one another, or inspecting each other’s genitals as described by SE.
Discussion
Where a general complaint of sexual abuse is led for the purpose of establishing consistency, it must be established that what was said encompasses the conduct alleged in a particular charge.[7]
[7] R v S, DD (2010) 109 SASR 46.
In R v S, DD, Duggan J, citing approval of the decision of Doyle CJ in R v Szejnoga[8], stated:[9]
[4]The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence.That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.
[8] (1998) 199 LSJS 97.
[9] (2010) 109 SASR 46, 49-50.
In R v Maiolo (No 2)[10] the question again arose as to whether the asserted complaint could objectively be seen to be referable to the charge under consideration. In particular, the question was as to whether statements made to police by the complainant RX could objectively be seen to be referable to the charges in the Information concerning her. Peek J stated (Kourakis CJ and Stanley J agreeing):
[22]Even if (for the sake of argument) one were to assume that the evidence can establish that RX made some complaint of sexual misconduct toward herself, there is no evidence to show that such a complainant related to any of the specific charges on the Information in relation to RX. The evidence given by RX was far too vague to establish that either her telephone conversation with the counsellor or her statement to police constituted an “initial complaint” within the meaning of the definition of that term in s 34M(6) in relation to any of the charges on the Information relating to RX.
…
[25]There is no difference between the approach of Duggan J and myself in this regard and the result of the application of that approach in the present case is very clear. To adapt and apply the words of Duggan J to the present case, “the complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count because it cannot be seen to be referable to that offence”. As to this point, there is no discordance within any of the judgments of the Court of which I am aware.
[10] (2013) 117 SASR 1, 11.
His Honour was referring to the decision of R v S, DD and the appeal which was allowed on the same basis.
In R v Landmeter,[11] Vanstone and Bampton JJ said:
[12]We reiterate the view expressed in R v A, GP (2012) 113 SASR 146 by Vanstone J that evidence of the fact of a complaint about an alleged sexual offence answers the description of an initial complaint and is admissible, even where it is not accompanied by a description of the offending conduct. That is so, provided the evidence is capable of being probative in terms of the purposes set out in s 34M(4)(a)(i) or (a)(ii), that is, to inform the jury as to how the allegation first came to light or as evidence of the consistency of conduct of the alleged victim. As Duggan J observed in R v J, JA (2009) 105 SASR 563 at 583, the consistency of conduct encompasses both consistency in making a complaint when one might be expected and consistency in the allegations. In the present case, the evidence tended to explain how the allegations first came to light and why there was no prosecution of the matter until much later, as well as potentially bearing on V’s consistency of conduct.
[11] [2015] SASCFC 3.
I consider that the evidence of the fact of the complaint is capable of being probative in the two ways set out above. It firstly demonstrates how the matter was first exposed, albeit that no proceedings eventuated until many years later. Secondly, it demonstrates consistency of conduct, in that it is a complaint made when one might expect, being at a time when the complainant and her mother first have a discussion in relation to sexualised behaviour.
I also consider that the evidence demonstrates consistency in the allegations as described by Duggan J in R v J, JA.[12]
[12] (2009) 105 SASR 563 at 583.
Here, the details of the complaint are not verbally made, however it is clear that the complaint follows on from, and is therefore referable to, the behaviour that was being exhibited between the complainant and AW when SE walked in on them. At the very least, this constituted exposing and inspecting each other’s genitals. On the complainant’s evidence this constituted AW lying on her trying to put his penis in her vagina.
Taking the whole of the evidence at its highest, I consider that the evidence is capable of establishing a “complaint of an alleged sexual offence”[13] that sufficiently refers to the sexual offence that is charged against the accused. I say this because the charged offending encompassed the accused getting on top of the complainant, exposing and playing with his penis and (on occasion) interfering with the complainant’s genitals, including rubbing his penis against her vagina. It is readily apparent to me that the conduct to which the complainant was referring in her initial complaint can be seen to be referable to the offence charged. I say this despite the fact that the complaint does not refer to the details of the occasions charged under the single count. It follows that I do not accept the defence submission that the evidence of the complaint is too uncertain, ambiguous and vague to be referable to the offence.
[13] Evidence Act 1929, s 34M(3).
I have already made some observations about my impressions as to the complainant’s evidence about specific topics.
I am of the view that the evidence should be properly admitted pursuant to s 34M.
Having admitted the evidence of complaint, I direct myself that the evidence is only to used to show how the allegations first came to light, and to demonstrate any consistency, or inconsistency of conduct.
In my view, the timing of the incident and the complaint demonstrates consistency by the complainant as to the act complained of, and occurs in spontaneous circumstances where the complainant, who was still very young, had little time to think of her answer. It would be fortuitous that the complainant, having already formulated an intention to falsely accused her step-father, was in a circumstance where her mother walked in on her and AW playing mothers and fathers and asked her where she knew how to do that, and was quick-witted enough to use that opportunity to make a false complaint. If she had not already formulated an intention to falsely accuse, then it seems unlikely that she could make up such an allegation spontaneously on the spur of the moment.
In any event I am satisfied of guilt beyond reasonable doubt without any reliance on the complaint evidence.
Complainant’s evidence
It is trite that, in circumstances such as these, the prosecution case is reliant on the evidence of the complainant. There is no corroborative evidence which has been led by the prosecution, although it appears as though there is little disagreement between the parties as to the dates and locations which have been referred to throughout the prosecution case.
I found the complainant to be a confident and impressive witness. She was able to recall the charged period with reference to the various houses in which the family lived, and there appears to be no suggestion that she is mistaken or has been inconsistent about these details.
I find that the accused did work in various roles which required him to undertake shift work, which would mean he was sometimes away from the house during certain periods of the day, depending on the shift. This includes his work at BHP when the family lived in Whyalla and at General Motors Holden (‘GMH’) when in Elizabeth Fields.
The primary submission of counsel for the accused was that I could not be satisfied beyond reasonable doubt, having regard to the significant lapse of time since the alleged offending, that the abuse occurred. The reason for this, say the defence, is that it is unlikely that the complainant would be able to remember things from so long ago, when she was as young as three.
I found the complainant’s explanations as to why certain things, other than the acts of sexual abuse, stuck in her mind was compelling. I had little difficulty accepting the reliability of her evidence on various topics extraneous to the charged offending. The details which supported memories of this kind, in my opinion, had the ring of truth, and nothing about the complainant’s evidence, especially under cross-examination, led me to doubt the accuracy of the memories. The recounting of odd, isolated and sometimes bizarre memories leave me with the impression that they have not been made up and are instead honest and reliable memories.
I will refer to a few examples.
The complainant said she was too scared to leave her room after occasions of abuse, so instead she would lick her pillowcase to get the taste out of her mouth.
She recalls the fear of not being able to breath when under the shower with the complainant putting his penis in her mouth.
The complainant could remember staying at Truro because she recalls helping the accused’s father, who she called pop, pick apricots. She said she became sick on one occasion from eating too many apricots and can no longer eat them.
The complainant herself admitted that she could not remember whether the accused worked at GMH when the family lived in Elizabeth. She offered the concession that she could not remember ever sitting at the dinner table with her mother and brothers, let alone the accused, way back then. She said that she wouldn’t have known where the accused worked, but only that he did work. However, she knew that he worked at BHP because that was why the family relocated to Whyalla. I find the fact that she could not remember sitting at the dinner table over 40 years ago to be unsurprising, given that it was an unremarkable event.
The complainant said she was certain that the accused’s sister, J, was present at the house during the ‘mums and dads’ incident. The complainant’s mother also said that J was present. J has no recollection of being present at such a time, nor ever seeing AW and the complainant acting in a sexual manner.[14] It may be that there was no significance for J such that she could recall the incident after so many years. Even if the complainant and her mother were mistaken about the presence of J, it does not cause me to doubt her reliability or credibility as a witness. The event and subsequent complaint obviously occurred. Both the complainant and her mother gave evidence that the complaint led to the complainant being taken to the doctor. The separation of the accused and the complainant’s mother occurred immediately after this incident. In those circumstances, there is little that turns on the detail. There is no similar rationale to my mind which would explain why the complainant and AW might honestly be mistaken about the alleged allegations being made of sexual abuse.
[14] Agreed Facts 2 and 3.
Counsel for the accused put to the complainant that she had never mentioned that she was made to touch the accused’s penis during the sexual abuse when she made a report to police in 2014. I agree the complainant made no mention of this detail. This does not cause me to doubt the reliability or credibility of the complainant. She said that the report contained the details of what would normally occur during the occasions of abuse. This is consistent with the evidence she gave in court, that it was only occasionally that the accused would make her touch his penis. There were a large number of forms of interference which occurred, and I do not hold it against the complainant that she failed to mention one type of interference which, on her evidence before me, occurred less frequently than the other types. There may be another reason why the detail was omitted, such as that the officer taking the statement did not want a full account in detail or did not elicit one.
As was apparent from the record of interview of the accused, the fact that the accused had been afforded the opportunity to visit the children after he left the family home suggested that the abuse had not occurred, or at least that the complainant’s mother did not believe that the abuse occurred. This was put to the complainant in cross-examination. The complainant conceded that she saw the accused over the years after the charged period. Whilst the exact time the photos were taken was not clear, they provided support for the unchallenged proposition that the accused had contact post-separation. Nevertheless I accept the explanation of the complainant that the contact was infrequent, and that she had little choice what contact was made given that she was still a young girl living with her mother. It does not cause me to doubt that the complaint was made to the complainant’s mother as she said.
The occasions of abuse that she described have the ring of truth to them. It follows that I find the complainant’s evidence to be both truthful and reliable. I find her to be an accurate historian insofar as it relates to incidents of sexual abuse which occurred with the accused.
For completeness I will make some observations of the accused’s interview and his exculpatory statements, although I note that it in no way strengthens the prosecution case. Indeed, I remind myself again that I must be satisfied beyond reasonable doubt of the complainant’s evidence before I can find the accused guilty.

In contrast to the complainant’s evidence, I found the accused’s interview and exculpatory statements unconvincing. He appeared to distance himself from situations which would implicate him in inappropriate behaviour. He said that there was no particular incident that led to the separation, when it can be inferred from what followed that the separation occurred as a direct result of the allegations made against him. I found his explanation of the shower incident to be bizarre and highly unconvincing, even once I had made a concession to account for the fact that this was the first time he had heard the specific allegations against him. Overall the interview did not cast any doubt on the assessment I had already made as to the credibility and reliability of the complainant’s evidence, which I have accepted beyond reasonable doubt. I have not made my decision as to the guilt of the accused on the basis of any lies I think he has told as evincing a consciousness of guilt, or any doubts I have as to his version of events, but rather that I positively accept the complainant’s evidence as to its truth and reliability.
I find that the accused, an adult during the relevant period, engaged in a number of sexual acts with or towards the complainant, a person under the age of 18 years, within the charged period, namely:
-That he put his penis in her mouth on the occasions referred to as the pillow incident, the ‘ew yuck, wee’ incident and the shower incident;

-That he touched her vagina with his penis during the ‘squishy object’ incident;

- That he masturbated in her presence during the pillow incident.
I find that these specified acts occurred against a background of regular sexual interference which occurred from when the complainant was three or four years of age, and ceased when the accused moved out of the family home.
Conclusion
It follows that I am satisfied beyond reasonable doubt the accused is guilty of the offence of Maintaining an Unlawful Sexual Relationship with a Child.
Verdict
Count 1 - Guilty