R v White

[2025] SADC 127

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v WHITE

Criminal Trial by Judge Alone

[2025] SADC 127

Reasons for the Verdicts of her Honour Judge Matteo 

28 October 2025

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

The defendant is charged with unlawful sexual intercourse with a person under 14 years and indecent assault, which offences are alleged to have been committed on the same occasion at the defendant’s premises when the complainant stayed the night there. The defendant elected to be tried by judge alone.

The complainant uses the pronouns they/them. On the prosecution case, the complainant, who was 13 years of age, came to stay at the defendant’s premises after finding themselves temporarily homeless. The complainant was acquainted with the defendant’s son, who was also at home at the time. On the prosecution case, after the defendant’s children went to bed leaving the defendant and the complainant alone in the lounge room, the defendant twice inserted his penis into the complainant’s vagina (count 1, unlawful sexual intercourse) and then touched their breast (count 2, indecent assault). On the prosecution case, the defendant’s son walked in on one or other of these events. When interviewed by police, the defendant denied the offending.

The defendant’s son was not called to give evidence. The defendant did not give or call evidence. The prosecution called opinion evidence based on specialised knowledge from a clinical psychologist about the development and behaviour of children generally and of children who have been victims of sexual offences pursuant to s 29C of the Evidence Act 1929 (SA).

Held: The complainant’s account contains a number of significant internal inconsistencies which are unresolved, leading to a doubt about the complainant’s reliability. The prosecution has not proved beyond reasonable doubt that the acts which are the subject of the charges occurred as alleged by the complainant.

Verdict: Not guilty of both counts.

Criminal Law Consolidation Act 1935 (SA) ss 5(1), 49(1), 56(1), 56(1)(b), 56(1)(d), 57(2); Summary Offences Act 1953 (SA) Pt 17, Div 3, ss 21R(1), 79A; Evidence Act 1929 (SA) ss 13BA(1), 13BA(5), 21, 29C, 34M, 34P, 34P(1)(a), 34P(2)(a), 34R; Statutes Amendment (Child Sexual Abuse) Act 2021 (SA); Evidence Act 1995 (NSW) ss 76-79, 102-108C, referred to.
Kane (A Pseudonym) v The King [2024] SASCA 70; BQ v The King (2024) 279 CLR 124; Mule v The Queen (2005) 79 ALJR 1573; Nguyen v The Queen (2020) 94 ALJR 686, considered.

R v WHITE
[2025] SADC 127

Introduction

1. The defendant is charged on an information with one count of unlawful sexual intercourse with a person under 14 years contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and one count of indecent assault contrary to s 56(1) of the CLCA. The offences are alleged to have been committed on the same occasion on or about the evening of 29 November 2023 at the defendant’s premises in Renmark. The alleged victim of the offences is a child, who I shall refer to in these remarks as ‘FL’. FL was 13 years of age at the time of the alleged offences, and a once-off visitor at the defendant’s premises on the occasion of the alleged offending, having been acquainted with the defendant’s son of around the same age. FL uses the pronouns they/them.

2. The particulars of the offences with which the defendant is charged are as follows:[1]

   [1]     Information filed 31 July 2024 (FDN 11).

   Count 1 – unlawful sexual intercourse with a person under 14 years:

   Particulars

   Rory James White between the 28^th day of November 2023 and the 1^st day of December 2023 at Renmark, had sexual intercourse with [FL], a person under the age of 14 years, by inserting his penis into [their] vagina.

   Count 2 – indecent assault:

   Particulars

   Rory James White between the 28^th day of November 2023 and the 1^st day of December 2023 at Renmark, indecently assaulted [FL], a person under the age of 14 years, by touching [their] breast.

3. The defendant elected to be tried by judge alone.

   The matter in overview

4. As at 29 November 2023, FL was about two weeks shy of turning 14. FL was a socially vulnerable child, and found themselves temporarily homeless. FL was taken by an adult acquaintance to the defendant’s house to stay the night. The defendant and a number of his children, including his son who was known to FL, were at home and FL was permitted to stay the night. I shall refer to the defendant’s son who was known to FL as ‘[C]’. The children had their own bedrooms. After a period of watching television in the lounge room of the house, the children went to bed leaving the defendant and FL alone in the lounge room. FL alleges that the defendant lay them on a couch and twice inserted his penis into their vagina, desisting when FL asked him to stop (count 1). FL alleges that the defendant then touched their breast (count 2). FL states that at a point [C] entered the loungeroom, saw what was happening and became visibly upset. FL followed [C] into his bedroom in an effort to assuage him. [C] was not called to give evidence.

5. FL spent the night at the defendant’s house. FL had an interaction with police the following day, at which time they denied, in answer to direct questioning, that any sexual incidents had taken place at the defendant’s house. Four days later, FL made certain allegations to a detective. A formal prescribed interview with FL was conducted at a later time, which forms part of FL’s evidence in the trial.

6. The defendant participated in an interview with police in which he confirmed that FL had stayed at his house on the occasion in question and that he and FL had slept in separate locations in the lounge room. He denied touching FL.

7. The defendant did not give or call evidence.

8. The fundamental issue in contention in the trial, and for me to determine, is whether the prosecution has proved beyond reasonable doubt that the acts which are the subject of counts 1 and 2 occurred as alleged by FL.

   Principles of law to be applied

9. The defendant is presumed to be innocent of the offences. The defendant bears no onus. The prosecution bears the onus of proving the guilt of the defendant in respect of any given charge beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the defendant is possibly or probably guilty. The prosecution must exclude as a reasonable possibility any matter raised by or on behalf of the defendant which might affect proof of the charges, or either of them.

10. I am to give each offence separate consideration.

11. I am to bring an open and unbiased mind to my consideration of the evidence and the ultimate question of whether the charges, or either of them, are proved by the prosecution beyond reasonable doubt. I am to consider the evidence and arrive at a verdict without sympathy for, or prejudice against, any party involved in the proceedings.

12. In assessing the evidence given by witnesses in the trial, I am to consider both their truthfulness and their reliability in determining whether I can rely upon the evidence given. I may also consider how the evidence of a witness fits with other evidence I find proved. I may accept or reject all or part of a witness’s evidence.

13. FL gave evidence with special arrangements in place. Specifically, their evidence was given by means of closed circuit television and they were accompanied by a companion. I did not allow those arrangements to influence the weight that I gave to the evidence of the witness, nor did I draw any adverse inference against the defendant from the fact that those arrangements were in place.

14. I draw no inference against the defendant for exercising his right to remain silent at trial. I do not treat the defendant’s silence as constituting any admission or as a makeweight for the prosecution’s evidence.

15. I shall indicate further specific matters of law which I am required to apply in the course of my consideration of the evidence.

    Elements of the offences

    Unlawful sexual intercourse with a person under 14 years

16. In order to prove the defendant’s guilt of the offence of unlawful sexual intercourse, count 1, the prosecution must prove each of the following elements of the offence beyond reasonable doubt:

    1. The defendant had sexual intercourse with FL.

    2. FL was under the age of 14 years.

17. Sexual intercourse includes any activity consisting of or involving penetration of a person’s vagina by any part of the body of another person.[2]

    [2]     Criminal Law Consolidation Act 1935 (SA) s 5(1).

18. FL was born on 7 December 2009[3] and was therefore under the age of 14 years at the time of the alleged offence.

    [3]     Exhibit P1 (birth certificate of FL).

    Indecent assault

19. In order to prove the defendant’s guilt of the offence of indecent assault, count 2, the prosecution must prove each of the following elements of the offence beyond reasonable doubt:

    1. The defendant touched FL’s breast.

    2.The defendant intended to touch FL’s breast.

    3.The touching occurred in circumstances of indecency.

20. By virtue of their age, FL was incapable of consenting to an indecent assault.[4]

    [4]     Criminal Law Consolidation Act 1935 (SA) s 57(2).

21. A touching is indecent if it involves a sexual connotation. I am to determine whether a touching is indecent by reference to prevailing community standards of what is considered to be indecent. It was not suggested on behalf of the defendant that a touching of the kind described by FL is not indecent.

22. Section 56(1)(d) of the CLCA provides that a higher maximum penalty is applicable where the victim of an indecent assault is under the age of 14 years at the time of the offence. An offence committed in such circumstances is therefore an aggravated offence.[5] As is noted immediately above, the fact of FL’s age at the time of the alleged offence is not in issue in this case.

    The prosecution case

    [5]     See Criminal Law Consolidation Act 1935 (SA) s 56(1)(b).

    Evidence of FL

23. The evidence of FL consisted of evidence in the form of an audio visual record made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA) and admitted pursuant to s 13BA(1) of the Evidence Act 1929 (SA) (‘Evidence Act’),[6] and further examination, cross-examination and re-examination with permission under s 13BA(5).[7]

    Audio visual record of interview of FL[8]

    [6]     Ruling 29 October 2024, T8.

    [7]     Rulings 29 October 2024, T9, T11.

    [8]     Exhibits P3 (USB); P4 (transcript).

24. FL was interviewed by a police officer, Detective Brevet Sergeant Bradley Yeomans (‘Detective Yeomans’), on 9 January 2024 in the presence of a Department for Child Protection youth worker.

25. As to the admission of FL’s evidence in the form of the audio visual record of this interview, I draw no inference adverse to the defendant, and I do not allow the form of the evidence to influence the weight to be given to it.

26. I direct myself that the evidence is that which I see and hear in the audio visual record of the interview on the USB, exhibit P3. For ease of reference to parts of the interview in these reasons, I will identify questions and answers by reference to the transcript, exhibit P4, which I have used as an aide memoir and chronological guide only.

27. In the introductory stage of the interview, FL made certain comments which suggest that they had been through a similar process of interview on another or other occasions. For example, in the course of the truth/lie questioning, FL said, ‘I hate it when we have to do that part’,[9] and, to Detective Yeomans, ‘You won’t get mixed up to me, it’s me.’[10] At the end of the interview, FL referred to this being their ‘fourth one’ and said to the youth worker, referring to Detective Yeomans, ‘He’d be my detective.’[11]

    [9]     Exhibit P4, A.9.

    [10]   Exhibit P4, A.22.

    [11]   Exhibit P4, A.138.

28. Detective Yeomans remarked at an early stage that he knew that FL ‘just wanted to get this over and done with’, to which FL agreed.[12] From my viewing of the interview, it does appear as though there are points at which FL was frustrated with the process of recounting their story (for example, remarking, ‘It’s pissing me off talking about it’[13] and ‘I want out of here’[14]). There is no evidence before me about whether FL had participated in any other interviews with Detective Yeomans and, if so, on what topic(s). From FL’s answers in the interview I am prepared to infer that they had participated in earlier interviews with Detective Yeomans involving a similar process of questioning. I do not speculate as to what any such interviews may have related to. I mention this matter because it is peripherally relevant to my evaluation of the defence’s criticisms of FL for failing to mention certain matters in that interview. It appears to me from the recording, and it is consistent with there having been earlier interactions between them, that FL was comfortable and open with Detective Yeomans.

    [12]   Exhibit P4, Q.27.

    [13]   Exhibit P4, A.78.

    [14]   Exhibit P4, A.90.

29. FL stated that they were with Detective Yeomans to talk about ‘Rory’, the defendant. Detective Yeomans asked FL to tell him ‘everything about Rory’, in response to which FL said:[15]

    So um I got kicked out of my mate’s house and um someone said go and stay here, it’s safe and all that shit. Rory was drinking, um and then we were get, I was sitting on an opposite side of the couch. We were just watching um Squid Games. And then um, after Squid Games finished like his kids went off to bed and I just stayed up. And like I was, I was staying up and smoking like cigarettes, and then he started like saying can I see if you have a cord to see if I’m not spying on him or some shit. I said, yeah sure. Like I didn’t know what was going on, so I said yeah sure. And then he checked and then um he lifted up my top and my crop top and saw my tits, and then he’s like wow they’re nice and I was like um thanks. Not, because when I’m in a situation like that I just say everything’s okay. For some gay ass reason I should of stood up and said stop but I didn’t. And then um he started getting a bit more touchie. He ended up taking off all my clothes and trying to insert his, oh fuck I can’t even say that word. It makes me want to throw up. But he tried to insert his dick inside of me and then I was like stop, can we stop please, I don’t feel comfortable, and he’s like yeah sure. And then I got back up and got dressed again and then um I was sitting down and he got closer to me and he was touching my tit, like he had his hand touching me tit, and that’s when [C] walked in, his son. Um and saw it, I was trying to tell [C] that nothing happened so I could, like not get doing this shit again, like doing this exact same shit, that we’ve done over the past. And um [C] was like to his dad, I can’t believe I have a pedo for a dad and all that shit. And then um, all after that shit happened um I just sat there, chilled out for the whole morning. Then I finally, I finally fell asleep and then um the next thing I know I wake up and you guys were looking for me.

    I will refer to this answer as ‘the overview account’.

    [15]   Exhibit P4, A.29.

30. The interview progressed by Detective Yeomans asking questions to elicit further details about the overview account. I pause to observe that there are a number of key features of the overview account, namely that:

    ·FL stayed up with the defendant after watching Squid Games and after the other children went to bed.

    ·The defendant asked to check FL for a cord, and checked FL by lifting up their top and crop top.

    ·The defendant started getting ‘a bit more touchie’.

    ·The defendant removed FL’s clothes.

    ·The defendant tried to insert his penis into FL’s vagina, FL told him to stop and he stopped.

    ·FL re-dressed.

    ·The defendant touched FL’s breast, and [C] walked in.

31. As to their circumstances in the lead-up to going to the defendant’s house, FL stated that they had been kicked out of a mate’s house in the Riverland. It was suggested that FL could stay at the defendant’s house for the night until they (FL) could find somewhere else to stay. The person who made the suggestion lived on the same street as the defendant. FL arrived at the defendant’s house at around 10.00pm. FL did not know the defendant at the time, other than as the father of [C]; FL realised that the defendant was [C]’s father on arrival at the house.

32. FL said that on arrival at the house, [C] asked what they were doing there, to which FL replied that they were seeing ‘with [C]’s dad’ if they could stay a night or two. FL said that the defendant said, “Sure, no problem.”[16] FL said that present at the house were FL, the defendant, [C], two other boys and twin girls – in other words, five children plus FL and the defendant.

    [16]   Exhibit P4, A.35.

33. FL said that the children went to bed at 11-ish.

34. FL said that the defendant was drinking beer out of a can, and that they saw him drink three cans. FL said that the defendant offered them a beer, but they declined. FL said that there was a tattoo gun in the lounge, which was ‘the coolest thing there’.[17]

    [17]   Exhibit P4, A.85.

35. In relation to the defendant checking FL for a cord, FL described that interaction as follows:[18]

    Like um yeah with like the cops or some shit, like I’m a detective kind of kid, shit, some shit. See what we were trying to do. And I was like yeah no, so he like legit checked if I had cords[19] … like what cops do … I was like bro I don’t have cords on me. If cops wanted me to do something for them, I’d be getting something out of it thank you.

    [18]   Exhibit P4, A.64-66.

    [19]   At this point, FL does an action motioning in relation to their chest and thighs.

36. FL confirmed that as part of the checking (or search), the defendant lifted their top and crop top. FL was wearing (I infer, in the following layers) a crop top, shirt, jumper and pants. FL said that the defendant lifted their jumper, checked their jumper, lifted their shirt, checked there, then lifted their crop top and checked there. FL said to the defendant, “Legit bro, I have nothing”, to which he replied, “OK I’m sorry I’m just checking.”[20] FL was asked whether the defendant touched them at the time of lifting their crop top and said:[21]

    He didn’t touch me at that time, and then like I think, twenty, ten, ten, twentyish minutes later he started touching me, and all that shit.

    [20]   Exhibit P4, A.73.

    [21]   Exhibit P4, A.77.

37. FL said that the defendant asked them to stand up again, and they did so. The defendant removed their clothing, picked them up and put them on the couch, lying on their back. FL said the defendant removed his jeans and jocks and twice tried to insert his penis (‘dick’) into their vagina. FL said they knew it was the defendant’s penis because the defendant had both of his hands on their shoulders. FL told the defendant that they did not feel comfortable, to which the defendant replied, “I understand” and desisted. FL described looking away and feeling like they had no control.

38. After they both re-dressed, FL said that they (FL) sat silently with a smoke in their hand. Thirty minutes later, the defendant came into the middle of the couch and:[22]

    …like sort of hugged me and then put his hand straight down my shirt and my crop top at the time, and actually like sat there and held me tit. And then [C] walked in and then [C] was like, what the fuck, and walked back to his room. I walked with him and said [C] don’t tell anyone ‘cause I can’t, I don’t want to get into like, shit, I’m scared, I’m more scared than you are…

    [22]   Exhibit P4, A.129.

1. FL demonstrated the defendant’s action of placing his hand down the front of their shirt.[23]

   Further examination of FL

   [23]   Exhibit P4, A.133.

2. In further examination, FL explained that they were originally from Renmark, then moved to Loxton. When they were 12 to 13 years old, there was ‘a big kerfuffle with [their] mother’, which led to them no longer living with their parents.[24] So it came to be that in November 2023, FL was living with a family friend in Renmark. FL lived with this family friend for a few months, before they were kicked out and left with nowhere to go. FL said that the family friend said that they could stay at [C]’s house for a night until they could get back on their feet in the morning. The family friend walked FL over to the defendant’s house, which was about a five minute walk away, ‘near night time’.[25]

   [24]   T23.

   [25]   T24.

3. FL said that present at the defendant’s house at the time of their arrival were the defendant, [C] and [C]’s two younger sisters. FL described the layout of the house by reference to a plan[26] and identified various rooms, including the lounge room, from photographs.[27] FL said that on their arrival, the defendant pointed them into the lounge room, and that they watched Squid Games in there. FL said that the defendant had said that they (FL) could sleep on one of the couches in the lounge room, and that they picked the longest blue couch.

   [26]   Exhibit P5 (plan of 10 Ogilvy St, Renmark).

   [27]   Exhibit P6 (photographs of 10 Ogilvy St, Renmark).

4. FL said that following the penile-vaginal intercourse, they (FL) put their pants back on, walked around the house for a little bit and then sat back down ‘like nothing happened’.[28] FL said that the defendant then gave them a tattoo in the shape of a love heart using the tattoo gun that was there:[29]

   A. After he touched me, after he tried to insert his dick inside of me, we sat down for it felt like 30 minutes and then I saw the tattoo gun and then thought, yeah, it would be a good idea, you know, and started talking to him in maybe giving me a tattoo, and he kept saying no, and then he made his mind up and then I ended up not wanting it and then he still did it.

   Q. Whereabouts on your body.

   A. It’s on my left leg above, let’s say near my V line.

   [28]   T30.

   [29]   T31.

5. FL described the position of the tattoo in a location on their upper left thigh between the mid-front and inner thigh, and identified a photograph of the tattoo.[30] They said the tattoo took 10, 20 minutes.

   [30]   Exhibit P7 (photograph of tattoo); T31-32.

6. In further examination, FL confirmed that [C] walked in when the defendant was touching their breasts (‘he was just touching my tits and sort of touching on my thigh, but not properly, like it was slowly but not properly.’)[31]

   [31]   T32.

7. FL said that they did not sleep that night, but eventually went to sleep on the blue couch in the morning when the sun came up. FL said that the defendant slept on the lounge room floor after returning from taking the children to school in the morning.

8. FL said, in response to a leading question which was not objected to, that after ‘this had occurred with’ the defendant, they did not feel like they could tell anyone straightaway. FL said that the reason was:[32]

   Because I felt like if I told anyone I could have just destroyed another life because I sometimes, half of the time I blame myself and seeing those kids mentally destroyed would have hurt me.

   [32]   T33.

9. The prosecution did not lead evidence of the making of an initial complaint under s 34M of the Evidence Act.

   Cross-examination of FL

10. It is not necessary to detail the entirety of FL’s cross-examination.

11. At essence, FL disagreed strongly with the propositions that the defendant did not check them for a cord, did not touch them in the process of doing so, did not lay them on the couch, did not engage in penile-vaginal intercourse with them and did not touch their breasts. FL disagreed with the propositions that the defendant had set up the separate dining room for them to sleep in and that he had not given them a tattoo.

12. It is pertinent to mention that whilst under cross-examination, FL was prone to verbal outbursts which expressed frustration, anger and incredulity on their part. FL’s outbursts were not attributable to the manner in which they were cross‑examined, which was entirely proper and in accordance with the grant of permission under s 13BA(5). FL is a young person who, I am prepared to infer from the evidence about their living situation and interactions with police, has experienced social disadvantage and a lack of familial or domestic stability. I did not discern that their outbursts were designed or intended as a deliberate display of discourtesy to the court, or that they reflected a lack of proper regard for the significance of the proceedings or their role as a witness. FL’s ability to participate as a witness in the proceedings was compromised by the difficulty which they appeared to experience in managing their frustrations and moderating their responses, such that their evidence was cut short on the first day, and there was a delay for a day in securing their return to court to complete their evidence. It is appropriate that I should make allowance for FL’s background and evidently limited ability to manage the stress and rigours of giving evidence, which seemed to manifest as verbal outbursts, as I have described them. I do not regard this aspect of the witness’s presentation or demeanour as being informative of their credibility, and I have not used my observations in this regard to either diminish or enhance my assessment of their honesty. However, as will be seen, there were instances in which an outburst amounting to a non-responsive answer limited FL’s evidence on particular topics, to which I must have regard in evaluating their evidence.

    Whether the defendant’s sons apart from [C] were home

13. As has been noted, during their interview on 9 January 2024, FL said that the defendant’s five children were present at the house, and in further examination, they said that [C] and his two younger sisters were the only children present. Defence counsel sought to cross-examine on this apparent inconsistency concerning the number of children present at the house. FL’s further examination took place on 29 October 2024, over nine months after their interview. In cross‑examination, FL gave some contradictory evidence about having watched the interview the previous week,[33] and not having watched ‘the full video for a few months’.[34] This contradiction was not resolved by re-examination or otherwise. On the topic of the number of children present at the house, specifically, whether the defendant’s two sons (apart from [C]) were present, FL gave internally inconsistent evidence in sequential answers: denying that the defendant had two other sons, and asserting that they were not there.[35] FL landed on saying that if the sons were at the house, FL did not see them. FL denied saying in the January 2024 interview that two other boys were there. In the overall scheme of FL’s allegations, this could be characterised as a somewhat benign topic. However, it provides an example of where my ability to evaluate FL’s explanation for the inconsistency – which was that if the boys were there, FL did not see them – was impeded by the witness’s outburst response which obscured their explanation. For example:[36]

    [33]   T36, L3-13.

    [34]   T37, L15.

    [35]   T35, L21-24.

    [36]   T37.

    Q. So you didn’t say that to Mr Yeomans.

    A. From what I remember, because I haven’t watched my full video because obviously it brings a lot of shit back, I have not watched the full video for a few months and from what I remember he had three kids, unless he popped out two others randomly, he had three.

    Q. [FL], right now I’m just asking you whether you remember saying that to Brad.

    A. I’m telling you this now, no.

    Q. And for completeness, Brad then asked you ‘So there was five kids, plus yourself, plus Rory’ and then you said ‘Yep’.

    A. Mm-hmm.

    Q. Do you remember being asked that.

    A. I’m just going to agree with you because there’s no point of dealing with this. Because there’s three kids in his house. If he had two boys they probably were there but I’m so fucking traumatised from the shit he’s done to me I can’t even fucking remember.

    Q. So my question for you now is sitting here do you remember whether – having me read that to you, does it refresh your memory as to whether there were two other boys there.

    A. Not properly, no. I’m glad I’m doing this over video link man.

14. The words ‘I’m glad I’m doing this over video link man’ were said in a frustrated tone, and I took them to be intending to convey that the witness was relieved not to be in the same room as counsel. All told, there is an unresolved inconsistency in FL’s account on the topic of the presence of the defendant’s sons other than [C] at the house. Were it to stand alone, it would not cause me to doubt FL’s credibility or reliability with respect to their central and most salient allegations for there is no reason for those children to have made a memorable impression upon FL in the circumstances in which FL came to be at the defendant’s house seeking a place to sleep for the night.

    The cord checking incident

15. FL was cross-examined about the timing of the checking for the cord in relation to when the children went to bed. As noted, in the overview account in the interview, FL said that the cord checking incident occurred after the children had gone to bed. In cross-examination, FL agreed that the children went to bed at around 11.00pm, and that FL had been at the house for up to two to three hours by that time. Later in cross-examination (on a later day), FL said that the cord checking incident occurred when the children walked off to their bedrooms to grab something. FL estimated that the cord checking incident occurred within ten minutes of them being at the house and in the lounge room. FL said and demonstrated that the physical searching component of the cord checking incident involved the defendant lifting up their shirt and moving his hand around the ‘bra area’ of their chest.[37] FL said that they were confident that the defendant touched them at this time.[38] It is to be noted that this evidence is contrary to FL’s account in the interview that the defendant had not touched them at that time.

    [37]   T59.

    [38]   T61.

16. FL was cross-examined about the inconsistency in their accounts of the timing of the cord checking incident. In particular, it was put to FL that they had said in the interview that the cord checking incident occurred after the children had gone to bed (by reference to the overview account), to which FL responded:[39]

    No, I was talking about the other touching, he was talking about the other touching, so I don’t know what that is, but I’m trying my hardest not to get angry, but that is a lie, because how the fuck did it happen after the kids went to bed if I was there when it happened and I was the one that was shaking on the couch because I didn’t know what to do.

    [39]   T62.

17. I gained the impression that the witness was not really orientated to the portion of the interview about which they were being asked, and in this sense the witness may have been answering at cross-purposes to the question. Nevertheless, the answer as given represented another instance of the witness’s frustrated temperament obscuring their evidence on a topic. The topic was returned to, and FL agreed that they had ‘put it out of place in the wrong order’;[40] FL went on to explain that they thought children had gone to bed because they had been told to go to bed and kept emerging from their bedrooms.

    [40]   T68.

18. FL was also cross-examined about the apparent inconsistency in their account as to whether the defendant touched them during the cord checking incident, including by reference to the denial of touching contained in answer 77 of the interview, which is reproduced above in paragraph [36]. It was wholly unclear to me whether FL agreed that they had said (in answer 77) that the defendant had not touched them at the time of the cord checking. I reproduce the passage of evidence:[41]

    [41]   T70, L38 – T71, L18.

    Q. … So do you remember saying that?

    A. Yes, because I don’t like putting myself in this kind of situation. If it was really up to me today, I wouldn’t be back here. Rory would have been very happy and smiling until he will get flogged again but I’m better off doing this so no-one else gets hurt.

    Q. So you agree that you told Brad that Rory didn’t touch you when he was checking you for a cord.

    A. No, I didn’t.

    Q. Sorry –

    A. I said he touched me and looked at my tits to look for a cord.

    Q. What I’m suggesting is you told Brad, in answer to the question at 77, when Brad said ‘Did he touch you at all at that time’, you said ‘He didn’t touch me at that time’.

    A. But like you are saying, you are suggesting, it’s not actually true and I’m telling you no. So please stop asking that question over and over again.

19. Once again, the witness’s evidence was obscured by frustration coupled with some unresponsive commentary.

    The timing of [C] walking in

20. In distinct contrast to the account given in their interview and in further examination by the prosecutor, in cross-examination FL stated that [C] walked in when the defendant was having penile-vaginal intercourse with them, not when he was touching their breast. This evidence was not initiated by the asking of any leading question or question concerning something said by the witness on another occasion. The witness’s change in account must be described as dramatic, and it struck me as such. It is appropriate to reproduce the witness’s evidence as the change emerged in full:

    Q. In your prescribed interview you’ve talked about an occasion where [C] walked in.

    A. Yes.

    Q. What do you say Rory was doing then.

    A. Rory was still on top of me.

    Q. So Rory was lying on top of you.

    A. He was still on top of me with his pants down trying and then [C] walked in and I was screaming, ‘Stop, stop, stop’ to Rory, so I got up, that’s why I was still in [C]’s room until nearly the early hours of the morning until I went back into the lounge room and crashed.

    Q. Sorry, so do you say that [C] walked in when Rory was trying to put his penis inside of you.

    A. Yes, the second time he tried, and then [C] screamed out ‘I don’t want a pedo for a dad. What the fuck’. So, [C]’s dreams were destroyed of having a father in his life because he hates his dad.

    Q. When you say ‘the second time he tried’, is it the case that it happened – sorry, I will withdraw that. The two occasions that Rory tried to put his penis inside of you that was one after the other, wasn’t it.

    A. Yes.

    Q. So the same incident.

    A. Yes.

    Q. And do you say [C] walked in during the second attempt.

    A. Yes.

    Q. I suggest the first time you’ve ever said [C] walked in while Rory was trying to put his penis inside of you was today.

    A. Pardon?

    Q. So your evidence that [C] walked in whilst Rory was trying to put his penis inside of you –

    A. Yeah.

    Q. – I suggest the first time you’ve ever said that was today.

    A. No.

    Q. When did you previously say that.

    A. I’ve said that in my thing. That should be in your book.

    Q. When you say in your ‘thing’, do you mean the interview we’ve been talking about.

    A. Yes. [C] walked – I’ve told everyone. [C] has walked in, screamed out ‘I don’t want a pedo for a fucking dad’, and I don’t blame him. So can you please ask me the other question and move forward with this question.

    Q. So it’s not the case, for example, that [C] walked in – you don’t say that [C] walked in when Rory was touching your breast.

    A. No, [C] didn’t walk in while he was touching my breast, [C] walked in when he was trying to insert his dick inside of me the second time.

    (emphasis added)

21. I pause to make two observations. The first is that the interview can only be interpreted as involving an assertion by FL that [C] walked in while the defendant was touching their breast. Aligned to that, FL’s account in the interview is clearly to the effect that the penile-vaginal intercourse came to an end through FL asking for it to stop; there is no suggestion of [C]’s presence being in any way connected with the cessation of that event. The second observation is that FL’s evidence in cross‑examination on the topic of when [C] walked in was unequivocally that it was during the second attempt at penile-vaginal intercourse and not while their breast was being touched. The two assertions cannot stand together and in my assessment amount to a significant internal inconsistency in FL’s account of key events underpinning the charged offences. The matter was made the worse when the witness flatly disagreed that they had said in the interview that [C] walked in while the defendant was touching their breast (‘held me tit’), including in the face of the transcript recording that answer.[42]

    [42]   T86-87.

22. It is an agreed fact that there is no record or note of FL telling police that [C] walked in during the alleged intercourse or while the defendant was on top of them.[43]

    [43]   Exhibit P9 (agreed facts), agreed fact number 9.

23. There is a further agreed fact relating to what FL said on the topic of the timing of these events at a time between the police interview and giving evidence in court. It is agreed that on 25 October 2024 (that is, four days before the witness commenced giving evidence in court), FL signed an affidavit in which they stated:[44]

    a. After the complainant told the accused to stop trying to put his penis in their vagina, he stopped, got off them and they both got dressed;

    b. The accused left the room before returning and then giving [FL] a tattoo;

    c. [C] walked in after the tattoo incident;

    d. When [C] walked in, the accused was rubbing [FL]’s leg and had his thumb/hand on their thigh. The accused was using both of his hands and was moving his hands up towards [FL]’s “tits”.

    The tattoo

    [44]   Exhibit P9 (agreed facts), agreed fact number 4.

24. It is an agreed fact that FL first told police that the defendant had given them a tattoo on 22 October 2024.[45] As I have described, FL gave evidence in further examination about the circumstances of their receipt of the tattoo.

    [45]   Exhibit P9 (agreed facts), agreed fact number 5.

25. In cross-examination, FL said that their receipt of the tattoo was a significant memory. They said that it hurt a little bit at the time, but that pain ‘is really nothing because obviously self-harm’. (The reference to self-harm was not elaborated upon.) FL disagreed that they had not told Detective Yeomans in the January 2024 interview about getting a tattoo; FL insisted that they had told Detective Yeomans in the interview and said that the police who attended at the defendant’s house ‘all saw it. They all saw how bad it was, how red it was. They saw the whole thing.’[46] Apart from the evidence of FL, there is no evidence before me about the attendance of any police officers at the defendant’s home at any time when FL was present, and no evidence of any police officer seeing a red tattooed area on FL’s body. There is an agreed fact about FL’s interaction with a police officer in the defendant’s street on the afternoon of 30 November 2023, which I will return to.

    [46]   T90-91.

26. In re-examination, FL said that when the defendant was tattooing them, [C] was in the lounge room with them. This is inconsistent with what was in their pre‑trial affidavit referred to above.

    Dealings with police after the event

1. FL was cross-examined about events which took place the following morning. They did not recall going to McDonald’s with the defendant, saying ‘I don’t hardly remember anything except what happened with me and him.’[47]

   [47]   T91.

2. FL said they remembered being awoken by police. As I have indicated, there is no evidence before me of police locating or engaging with FL at the defendant’s house.

3. On the whole, FL’s evidence about the events of the following morning was difficult to follow, in part because it was punctuated with some unresponsive answers (for example, ‘whatever I did that following morning is none of your business, so not really telling you.’)[48]

   [48]   T91.

4. FL agreed that they spoke to a female police officer in the afternoon.[49] Later in the same session of questioning, FL said that they did not recall an interaction with a female police officer on the defendant’s street.[50] FL denied telling this officer there had been no sexual incidents at the defendant’s house and denied telling her that nothing happened between them and the defendant.[51]

   [49]   T91.

   [50]   T96.

   [51]   T98.

5. FL said that they were taken to the house of someone named Casey, where a meeting took place with Detective Yeomans. FL said that at this meeting, they (FL) told Detective Yeomans that the defendant ‘touched me, put his dick inside of me, gave me a tattoo…’[52]

   [52]   T96.

   Discreditable conduct evidence

6. At this stage, I identify that there are three aspects of FL’s evidence which constitute discreditable conduct evidence,[53] or at least potentially do so. They are:

   1.The offer of a drink of beer.

   2.The checking for a cord.

   3.The tattooing of FL.

   [53]   Evidence Act 1929 (SA) s 34P.

7. Section 34R of the Evidence Act obliges me to identify and explain the purposes for which the evidence on these topics may, and may not, be used.

   The offer of a drink of beer

8. The prosecution submitted that this evidence had a permissible contextual use. It is evidence which did not assume any real prominence in the trial.

9. The only relevance and permissible use of the evidence of the offer of beer is as part of the narrative about FL’s interactions with the defendant prior to the alleged offending. I am satisfied that the permissible use of this evidence outweighs any prejudicial effect it may have on the defendant.[54]

   [54]   Evidence Act 1929 (SA) s 34P(2)(a).

10. I may use the evidence as part of FL’s narrative so that it is considered as a complete picture. I have not used the evidence to infer that the defendant was ‘grooming’ FL towards sexual activity by trying to get them intoxicated or to feel at ease in his company in order to take advantage of them.

11. I will not use the offer of beer evidence to suggest that the defendant is more likely to have committed the offences because he has engaged in discreditable conduct.[55] I direct myself that I must not reason that because the defendant offered FL, an underage person, a drink of beer, he is a bad person or a person of bad character and that he is therefore more likely to have committed the offences alleged by FL. I must not reason that because the defendant offered FL a beer that he is the sort of person who is more likely to have engaged in sexual intercourse with, or indecent touching of, FL.

    The checking for a cord

    [55]   Evidence Act 1929 (SA) s 34P(1)(a).

12. FL’s evidence of the incident involving the defendant checking them for a cord, whether or not it involved touching, is potentially discreditable conduct for it involved the lifting of FL’s top. In Kane (A Pseudonym) v The King [2024] SASCA 70, Doyle JA observed that discreditable conduct is not limited to conduct which constitutes a criminal offence, and that it connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant (and is of a level of seriousness or consequence that it might cause a jury to engage in impermissible reasoning).[56]

    [56]   Kane (A Pseudonym) v The King [2024] SASCA 70, [50].

13. In my view, the lifting of a 13-14 year old child’s top to reveal an upper body garment which is covering their breasts (here, a crop top) by an adult who is not in a formal care-giving role and who is recently acquainted with the child, particularly where that act is unconnected to the provision of any assistance to the child, is at least wrongful or morally repugnant. If touching is involved, it may constitute an assault, which may be indecent in character.

14. It will be necessary for me to make findings about the cord checking incident and what it involved. If I accept that the cord checking incident as described by FL occurred involving the lifting of their top, then the prosecution invites me to use it as evidence of the defendant ‘test[ing] the waters’ to gauge FL’s response.[57] I shall return to any use of this evidence in view of my factual findings.

    [57]   T140-141.

15. I may not use the evidence of the cord checking incident to reason that because the defendant lifted FL’s top, he is a bad person or a person of bad character and that he is therefore more likely to commit a crime or more likely to have committed an offence of unlawful sexual intercourse or indecent assault upon FL. I must not reason that because the defendant has committed an act involving the lifting of FL’s top and exposing her crop top that he is therefore the sort of person who is inclined to commit acts of exposing the private body parts of young persons and is therefore more likely to have committed a sexual offence against FL.

    The tattooing of FL

16. It is an offence to tattoo a minor.[58]

    [58]   Summary Offences Act 1953 (SA) s 21R(1).

17. The prosecution submitted that the evidence of the defendant applying a tattoo to FL, if accepted, was capable of demonstrating ‘how [the defendant] viewed this child, that he could tattoo them.’[59] Further, the prosecution submitted that the tattooing could supply evidence of the defendant attempting to secure the complainant’s silence.

    [59]   T160.

18. For reasons I shall come to explain, I am unable to be satisfied that the defendant applied the tattoo to FL on the occasion and in the circumstances alleged on the prosecution case. It follows that I will not use the tattoo evidence to suggest that the defendant is more likely to have committed the offences because he has engaged in discreditable conduct.[60] I must not engage in ‘bad person’ reasoning of the kind I have warned myself against under the previous headings.

    [60]   Evidence Act s 34P(1)(a).

    Defendant’s record of interview

19. The defendant’s record of interview with police was tendered by consent and played on the prosecution case.[61] The defendant was interviewed by Detective Yeomans at the Berri police station at 3.45pm on 30 November 2023. The only evidence before me about the circumstances of that interview is that which is contained in the recording of the interview itself. Detective Yeomans did not give evidence.

    [61]   Exhibit P8 (USB); P8A (transcript).

20. I direct myself that the evidence is that which I see and hear in the audio visual record of the interview on the USB, exhibit P8. For ease of reference to parts of the interview, I will identify questions and answers by reference to the transcript, exhibit P8A, which I have used as an aide memoir and chronological guide only.

21. The defendant’s record of interview is a mixed statement in that it is comprised of admissions to certain matters together with exculpatory assertions. I am permitted to attach different degrees of credit to different parts of the defendant’s statements in his record of interview.[62] I may give less weight to the defendant’s exculpatory assertions, which are not sworn evidence and are not against his interests, than to his admissions.[63]

    [62]   Nguyen v The Queen (2020) 94 ALJR 686, [22].

    [63]   Mule v The Queen (2005) 79 ALJR 1573, [21]-[22]; Nguyen v The Queen (2020) 94 ALJR 686, [24].

22. The defendant was under arrest at the time of the interview. He did not seek to avail himself of any of his rights as an arrested person.[64] The defendant gave his home address as 10 Ogilvy St, Renmark and stated that he had just moved in. It appears from Detective Yeomans’ questioning that police had attended at the defendant’s home address about one hour earlier and gained entry into the premises in the defendant’s absence.[65] I infer that is when the photographs, exhibit P6, were taken. The defendant returned to the premises when requested by police to do so, at which time he was arrested. The defendant was permitted to have a conversation with the Department for Child Protection concerning arrangements for the care of his children. According to a statement made by Detective Yeomans in the preliminary stages of the interview, and agreed to by the defendant, to that point police had no conversation with the defendant ‘about the allegation’.[66]

    [64]   Summary Offences Act 1953 (SA) s 79A.

    [65]   Exhibit P8A, Q.29.

    [66]   Exhibit P8A, Q.58.

23. The allegation as first put to the defendant by Detective Yeomans was of ‘some indecent assault…in regards to some touching’.[67] I observe that no allegation of or involving sexual intercourse was put to the defendant in the course of this interview.

    [67]   Exhibit P8A, Q.67-68.

24. The defendant confirmed that FL had stayed at his house the night before (although he said that he was not too sure of their name). When asked by Detective Yeomans what he could tell him about the alleged indecent assault/touching, the defendant explained that he had just moved in and slept on the couch as his bedroom was ‘just storage’ at the moment.[68] He claimed that FL was jumping on the couch trying to lay next to him and that later on, he brought out a mattress and slept on the floor.

    [68]   Exhibit P8A, A.69.

25. The defendant explained that his neighbours down the road had asked if FL could stay for a couple of nights, and that he agreed. He said that he had ‘kicked [them] out’ earlier that day.[69] The defendant confirmed that FL knew his son, [C], and his twin daughters as they had gone to school together. The defendant explained that he had acquired custody of his own children about a year and a half earlier.

    [69]   Exhibit P8A, A.73.

26. The defendant said that, although he had never previously met FL, he agreed they could stay because his children ‘vouched for’ them and that was good enough for him.[70] The defendant said that his five children were at the house and that they watched movies on YouTube. As to where FL was to sleep, the defendant said that he did not permit FL to stay in [C]’s room, and that he was going to put a spare mattress on the lounge room floor.

    [70]   Exhibit P8A, A.103.

27. The defendant said that his children went to bed at around 10.00pm, after which time he and FL were sitting on the couch. He said that he ended up laying down and that FL lay down next to him, which prompted him to obtain the spare mattress because ‘it did feel a bit inappropriate’.[71] He said that FL slept on the couch and that he took the floor. The defendant said that he woke at about 3.00am, at which time FL was still watching the television. He said that he got himself a drink, went to the toilet and then returned to the lounge room and started watching television again from a position on the mattress. He denied that ‘anything else’ happened.[72]

    [71]   Exhibit P8A, A.133-134, 176.

    [72]   Exhibit P8A, A.140, 175-176.

28. The defendant said that at about 5.30am he walked to McDonald’s to get breakfast for everyone. He said that FL accompanied him there. After breakfast, FL went to sleep until around 11.00am, when he asked them to leave after a neighbour advised him to ‘get rid of [them], [they’re] trouble’.[73]

    [73]   Exhibit P8A, A.150, 163-166.

29. The defendant admitted to drinking a six-pack of Victoria Bitter beer throughout the night. He said that he paced his drinks and did not feel affected by alcohol.

30. The defendant described the clothing he was wearing the night before, which included ‘yellow Tradie jocks’, which are visible in the interview footage,[74] and FL’s clothing, which included a ‘crop top or sports bra one of those toppy things that you jog in’.[75]

    [74]   Exhibit P8A, Q.199-201, 207.

    [75]   Exhibit P8A, 211.

31. The defendant said that he saw [C] a couple of times throughout the night. No suggestion was put to the defendant about [C] walking in on anything untoward occurring.

32. The defendant suggested, in answer to a question about whether any inappropriate conversations occurred, that FL asked if he had weed,[76] which he did not.

    [76]   Exhibit P8A, A.254.

33. At a later stage of the interview, Detective Yeomans put to the defendant that it was alleged that he had grabbed FL’s breasts when they were both sitting on the couch. The defendant’s responses were as follows:[77]

    [77]   Exhibit P8A, Q.184 – A.189.

    Q. So the allegation is that during the night.

    A. Yep.

    Q. You were, you have grabbed [FL]’s breasts when … you were both sitting on the couch.

    A. Okay, I’m not aware of that.

    Q. When you say you’re not aware of that you, you don’t remember or from your recollection it didn’t happen.

    A. My recollection no it did not happen.

    Q. So the allegation is that, some time during the night, over the night period.

    A. Yep.

    Q. You are sitting on the couch with [FL] and you’ve grabbed [their] right breast with one of your hands.

    A. I’m not aware of that at all.

34. Later in the interview, the defendant was asked:[78]

    Q. Is there any prospects that something like this has happened and you just don’t recall it.

    A. Ahh no not at all. It’s quite news to me when I got told I was under arrest.

    [78]   Exhibit P8A, Q.242.

35. The defendant said it was ‘bullshit allegations’.[79]

    [79]   Exhibit P8A, A.284.

    Agreed facts

36. A statement of agreed facts was tendered, exhibit P9. In the main, the agreed facts concern out-of-court statements made by FL to police at various times, some of which I have already referenced in these reasons. Rather than setting the agreed facts out in full, I refer to them as it is necessary to do so.

37. The agreed facts include details of out-of-court statements made by FL on occasions prior to their formal prescribed interview on 9 January 2024. The following matters were agreed: [80]

    At about 2:40pm on 30 November 2023, Constable Talitha Gollan was on Ogilvy Street, Renmark. She became aware that the complainant was walking up the street and approached the complainant. Constable Gollan asked the complainant whether there were “any sexual incidents” at the accused’s house the night before; whether the complainant “hooked up” with the accused; whether the complainant would let the accused “touch you or anything”; or whether the complainant was “sexually assaulted”. The complainant told Constable Gollan that there had been “no” sexual incidents and “if there was” “I will tell yous”. The complainant also said that they had not hooked up with the accused; that they wouldn’t let the accused touch them (the complainant); and that they were not sexually assaulted. The conversation took place in the street, with other persons standing around in the vicinity.

    At about 2:02pm on 4 December 2023, Detective Brevet Sergeant Bradley Yeomans met with the complainant and Casey Nugent. Casey Nugent was providing the complainant with temporary accommodation. During the course of the meeting, the complainant told Detective Yeomans that “he (the accused) tried to take my clothes off”, that the accused “was touching my bum, his penis/dick (used different words on different occasions) rubbed (on the complainant’s bum)”. Detective Yeomans sought clarification surrounding any skin-on-skin offending, to which the complainant replied “yes”.

    [80]   Exhibit P9 (agreed facts), agreed fact numbers 2-3.

    Patricia Rayment – evidence led pursuant to s 29C Evidence Act

38. Section 29C of the Evidence Act provides for evidence of opinions based on specialised knowledge of child development and child behaviour to be admitted in proceedings relating to sexual abuse of a child.

39. The prosecution called evidence from Patricia Rayment, a clinical psychologist, about child development and child behaviour. The defence did not object to Ms Rayment giving evidence on these topics, and there was no suggestion that she lacked the specialised knowledge required to express the opinions that she did.

40. Section 29C provides as follows:

    29C—Evidence of opinions based on specialised knowledge of child behaviour etc

    (1) Despite any other provision of this Act, or any other Act or law, if a person has specialised knowledge, based on the person's training, study or experience, of child development and child behaviour then evidence of that person's opinion that is wholly or substantially based on that specialised knowledge is admissible in proceedings relating to sexual abuse of a child.

    (2)A reference in subsection (1) to an opinion of a person includes a reference to an opinion relating to—

    (a) the development and behaviour of children generally; or

    (b)the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

    (3)In this section—

    sexual abuse of a child includes any unlawful conduct of a sexual nature committed to, or in relation to, a child.

41. The terms ‘child development’, ‘child behaviour’, ‘development’ and ‘behaviour’ are not defined in the Evidence Act. The evidence led from Ms Rayment was focussed upon memory which, in the absence of objection and for present purposes, I am prepared to treat as a facet of child development. Ms Rayment also gave general evidence about the behaviour of children who have been victims of sexual offences. Ms Rayment did not conduct any assessment of FL or of their interview or evidence.

42. I do not propose to summarise all of the evidence given by Ms Rayment. I will indicate where, and in what manner, I have used her evidence to assist me in my evaluation of the evidence of FL and in my determination of the facts in this matter.

43. By way of formal qualifications, Ms Rayment has a Bachelor of Arts majoring in Psychology, an Honours Degree in Psychology and a Master’s Degree in Clinical and Health Psychology. Her undergraduate and postgraduate training covered cognitive processes, including memory. Ms Rayment has been a practising clinical psychologist for 25 years, having worked largely in child protection and health with a focus on the assessment and treatment of children with trauma from maltreatment. Ms Rayment has lectured at university on child development, which includes memory-like information processing.

44. Ms Rayment briefly explained how memory works in the sense of the way in which memories are recorded (or, encoded), stored and retrieved. Ms Rayment gave evidence that trauma can affect memory in different ways, for example by causing fragmentation of a person’s memory of a traumatic event. She also gave evidence that past or previous trauma, such as in the form of neglect or child abuse, might increase the likelihood of someone developing a post-traumatic stress disorder and might also impact child development because neglected or abused children generally have poorer memory and language skills which might be attributable to a lack of parental assistance in talking about memories, which bears on narrative storytelling capacity. I accept her general evidence on these topics.

45. Ms Rayment gave evidence about the behaviour of children and why they might submit to sexual conduct, in particular due to the ‘fight, flight, freeze’ response of the nervous system to threat. She explained that if a child feels trapped, they might go into an immobile state and not be able to scream, run or fight back while the nervous system has taken over by engaging a freeze state.[81]

    [81]   T115.

46. Ms Rayment gave evidence that children who have experienced past trauma and who are sexually abused can be more vulnerable to having a poor ability to regulate their emotions or poorer trust in adults to draw upon for social support and emotional co-regulation:[82]

    …well, all of the kids I see are more easily triggered by – into having heightened emotional states so a raised voice, you know, being told no, being feeling like they are under threat or that they are missing out or something like that, might trigger them into a much more heightened, you know, fight or flight state because they’ve been traumatised earlier in their lives.

    [82]   T114.

1. I accept this general evidence of Ms Rayment about the development and behaviour of children who have been the victims of sexual offences.

2. Returning to the topic of memory, Ms Rayment gave evidence that, in her experience, a child victim of sexual offending will describe the offending in different ways on different occasions. She said that her experience was consistent with research (which was not specifically identified):[83]

   …what the research would suggest is that children and adults tend to be quite inconsistent so they’ll tell, you know, some parts of the story at one interview and other parts at another and leave out parts and that. The research would suggest that doesn’t necessarily mean it’s inaccurate, it’s just the way memory works. So we will recall some things at one point and others at another.

   (emphasis added)

   [83]   T112.

3. I have emphasised those aspects of Ms Rayment’s answer which make it clear that her evidence about offending being described differently on different occasions not necessarily indicating inaccuracy was predicated upon certain information (or, parts of the story) being provided at different times. Ms Rayment went on to explain that a child’s disclosure should be seen as ‘an iterative process that happens over time’,[84] because a child may be selective about what details they tell to which people and may ‘test the waters’ by telling some details and telling other details later. I took Ms Rayment’s explanation of this iterative process of disclosure to relate to a concept of selective, incremental or differential disclosure or recounting of an event by a child at different times. I did not take Ms Rayment to be addressing inconsistency in the sense of a specific fact being asserted differently on different occasions.

   [84]   T113.

4. Ms Rayment’s evidence about a child proffering different accounts on different occasions was refined in cross-examination. She agreed that generally a child will be able to retain and recall the ‘pertinent details’ of an event, meaning ‘the things…that they may have paid attention to’:[85]

   …particularly if it was painful or frightening, they’d pay attention to those details and less so to the peripheral details like what picture was on the wall or what time of day it was.

   [85]   T118.

5. Ms Rayment agreed that what is pertinent (or, central) versus what is peripheral is relative to an individual:[86]

   …I guess in the research what would be central would be what happened and what might be peripheral might be, as I say, more detailed descriptions such as what was in the room, or what they were wearing or what time or day it was or those sort of more specific details that you would expected that the salient events of what happens would be the stuff that would be retained better over time.

   (emphasis added)

   [86]   T120.

6. Ms Rayment went on in the course of cross-examination to draw what I regard as an important distinction between an inconsistency taking the form of a failure to mention a detail and an inconsistency taking the form of a contradiction. The former, she said, did not necessarily indicate inaccuracy, whereas the latter was more likely to do so, which was supported by reference to research based on children’s recall of personally significant events:[87]

   Where there was a contradiction so they said one thing and said the polar opposite the next time, I think the research suggested that that was more likely to be an error, whereas when there was reminiscence like an added detail that wasn’t provided previously or a detail that was missed out that was provided recently, quite often those were still accurate.

   [87]   T121-122.

7. Importantly, Ms Rayment’s evidence is distinctly not to the effect that inconsistencies of account are not indicative of inaccuracy on the part of a child historian. Ms Rayment’s evidence is that inaccuracy may be indicated by the nature of an inconsistency (whether it involves a failure to include a detail or a contradiction) and the subject matter (whether it is central or peripheral) in the context of the situation in which the memory was encoded or acquired. Whilst I accept Ms Rayment’s evidence on this last-mentioned topic, to the extent that it is an opinion about child development and behaviour, it merely accords with, and does not add to, what I would intuit by simple logic and common sense.

8. Section 29C of the Evidence Act came into operation on 1 June 2022, having been introduced by the Statutes Amendment (Child Sexual Abuse) Act 2021 (SA).

9. The Evidence Act 1995 (NSW) (‘the NSW Act’) contains similar, but not identically worded, provisions by way of exceptions to the ‘opinion rule’[88] and the ‘credibility rule’.[89] Broadly, s 79 provides for an exception to the rule that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (s 76(1) – ‘the opinion rule’), and s 108C provides for an exception to the rule that credibility evidence about a witness is not admissible (s 102 – ‘the credibility rule’). Both exceptions relate to evidence given by persons with ‘specialised knowledge based on the person’s training, study or experience’ of an opinion ‘that is wholly or substantially based on that knowledge’. Such specialised knowledge is defined to include reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse).[90]

   [88] ss 76-79.

   [89] ss 102-108C.

   [90]   Evidence Act 1995 (NSW) ss 79(2)(a), 108C(2)(a).

10. The NSW Act opinion rule and credit rule exceptions relating to the evidence of persons with such specialised knowledge provide that an opinion includes a reference to either or both of the following:[91]

    (i) the development and behaviour of children generally,

    (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

    [91]   Evidence Act 1995 (NSW) ss 79(2)(b), 108C(2)(b).

11. Whilst there are some important differences between the NSW Act ‘specialised knowledge’ provisions (including, for example, the requirement for a grant of leave to adduce such evidence as an exception to the credibility rule: s 108C(1)(c)) and s 29C of the Evidence Act, it may be seen that s 29C is in substantially the same terms insofar as specialised knowledge-based child development and child behaviour opinion is contemplated for admission in South Australia in proceedings relating to sexual abuse of a child.

12. In BQ v The King (2024) 279 CLR 124, the High Court considered the admissibility in a trial of child sexual offences of specialised knowledge-based evidence of the possible responses of victims of child sexual assault, particularly in an intra-familial setting, pursuant to the provisions of the NSW Act. The plurality determined that the evidence given in that case by Associate Professor Rita Shackel, based at least upon her study of research on the topic, was admissible as opinion evidence and credibility evidence. The court held that no miscarriage of justice arose in that case from the failure of the trial judge to give a general direction to the effect that Associate Professor Shackel’s evidence was merely educative concerning the inferences that might be drawn from children’s behaviour and ‘[said] nothing about the credibility’ of the complainants in that case, and a particular direction arising from the evidence and submissions in the trial.

13. The court said that a general direction incorporating an instruction that the specialised knowledge-based evidence about child behaviour (or counter-intuitive evidence) saying nothing about the credibility of a complainant would have been erroneous and confusing:[92]

    …the evidence of Associate Professor Shackel did say something about the credibility of [the complainants]. The very purpose for which her evidence was led was to avoid the jury's assessment of the honesty and reliability of [the complainants’] evidence being affected by common misapprehensions, such as there being typical responses of a child to being sexually assaulted and that, commonly, children who are sexually assaulted in an intra-familial context will not acquiesce but instead protest.

    [92]   BQ v The King (2024) 279 CLR 124, [49].

14. The court emphasised the importance of linking any direction concerning the use of counter-intuitive evidence to the issues and evidence in a trial, and said:[93]

    The proper approach in such cases is not to attempt to enunciate a general direction appropriate to all forms of counter-intuitive or educative evidence or to direct the jury that such evidence might be used only to respond to an attack on a complainant's credibility but not to support their credibility. Instead, where necessary, the legitimate and potentially illegitimate uses to which such evidence might be put should be identified and, if there is a sufficient likelihood or risk that such evidence might be put to an illegitimate use, then that may warrant consideration of its exclusion … the giving of a direction to the jury to guard against that illegitimate use.

    [93]   BQ v The King (2024) 279 CLR 124, [51].

15. The court went on to consider a proposed particular direction which, although directed to risks which did not arise at the appellant’s trial, accorded more with the proper approach. The proposed particular direction comprised of three parts, which may be summarised as follows:[94]

    1.It would be wrong to use the evidence of Associate Professor Shackel to assume or support the suggestion that the appellant had the tendency asserted by the Crown (which was said to be a tendency to have a sexual interest in the complainants and to act upon that interest).

    2.It would be wrong to reason that any correlation between what the research had shown as to how perpetrators commit child sexual abuse, including abuse in an "intra-familial" context, and how the appellant was alleged to have abused the complainants meant that he must have committed the offences charged or was predictive of how such alleged perpetrators, including the appellant, behaved.

    3. It would be wrong to assume that the appellant fell within the term “intra-familial” and therefore the evidence was predictive of the conduct of the appellant and the complainants.

    [94]   BQ v The King (2024) 279 CLR 124, [52]-[55].

16. It is appropriate that I be guided by what the High Court said in BQ v The King concerning the requirement to link the use of Ms Rayment’s specialised knowledge evidence to the evidence and issues in the trial, and the proper approach to the use of such evidence.

    Memory

17. For the reasons given in paragraphs [112]-[117], whilst I accept Ms Rayment’s evidence about memory, I have not been much assisted by it in this particular case. The prosecution submits that Ms Rayment’s evidence about the workings of child memory and retrieval, particularly on the part of a child who has experienced trauma, are capable of rendering the internal inconsistencies in FL’s account ‘explicable’.[95]

    [95]   T145, L57.

18. I observe, and proceed on the basis that, any explanation for inconsistency which is founded in young age and/or trauma is logically incapable of neutralising the effect of an inconsistency on reliability where the inconsistency relates to a pertinent or key fact.

19. It is not known, nor do I think could it be discovered, what factor(s) impacted the reception and encoding of FL’s memory of the events at the defendant’s premises. There is in this case no objective or independent evidence against which to evaluate the accuracy of their retrieval of memories from that occasion. And so, while it is possible to accept Ms Rayment’s evidence about inconsistencies not necessarily indicating inaccuracy (qualified as it was) at a general level, in the context of this case and my evaluation of FL’s credibility and reliability, that opinion does not bear the use and weight which the prosecution ascribes to it.

    Behaviour

20. Regarding Ms Rayment’s evidence about the behaviour of children who have been the victims of sexual offences, in particular as to why a child might go into a ‘freeze’ state which may give the appearance of acquiescence, I consider that evidence is capable of addressing what might be a common misconception in the community that a child would be expected to run away or cry out. I have not evaluated FL’s evidence according such an expectation, for it is not one that I hold. Importantly, I was not invited by the defence to evaluate FL’s credibility by reference to the notion that a child in FL’s position would be expected to behave or react in a particular way.

21. To the extent that Ms Rayment’s evidence about children going into a ‘freeze’ state accords with FL’s evidence about doing so, I do not reason that the alleged sexual acts are more likely to have occurred.[96]

    [96]   BQ v The King (2024) 279 CLR 124, [56].

    Consideration

22. My determination as to whether the prosecution has proved the charges, or either of them, beyond reasonable doubt is dependent upon my assessment of the truthfulness and accuracy of the evidence of FL. I am required to carefully scrutinise FL’s evidence.

23. FL was a frank witness in the sense that their evidence was direct, blunt and devoid of any airs. At a fundamental level, I formed the impression that they were honest.

24. The prosecution urges upon me that FL is a child who has experienced past trauma which, based upon the evidence of Ms Rayment, is explicable of their presentation and the inconsistencies in their account of the alleged offending. Ms Rayment did not explicitly define the term ‘trauma’. The evidence which the prosecution points to in support of a finding that FL has experienced past trauma is FL’s limited evidence about ceasing to live with their mother, and their assertions to Detective Yeomans in the interview about their brain shutting off,[97] telling [C] that they were ‘too scared to do this shit all over again’,[98] and their allusions to other interviews. This evidence, in conjunction with FL’s evidence about finding themselves homeless before attending at the defendant’s house, satisfies me that FL is a child who has suffered from a level of neglect and social and emotional disadvantage. The evidence is too vague to enable me to make a finding that FL had experienced trauma in the sense that I understood Ms Rayment to be referring to trauma, which included maltreatment, sexual abuse and ‘something that’s really stressful’[99]. I am unable to make any finding as to the nature and severity of any such trauma experienced by FL. As I have said, I accept that FL was disadvantaged and lacked important domestic, social and emotional supports. I accept that those disadvantages explain FL’s presentation and conduct when giving evidence to the extent that they were prone to what I have described as outbursts of frustration, and I make allowance for that factor in evaluating FL’s evidence.

    [97]   Exhibit P4, A.73.

    [98]   Exhibit P4, A.133.

    [99]   T111.

25. I have indicated above that Ms Rayment’s evidence does not assist me in evaluating the source(s) and/or significance of the particular inconsistencies in FL’s account.

26. FL’s account of events which occurred on the one occasion when they attended at the defendant’s house is confined and not complex. Accepting Ms Rayment’s evidence about the encoding of memory being influenced by the central or peripheral nature of details, the significant inconsistencies in FL’s account of the key (that is, central) events of their attendance at the defendant’s house present an insurmountable hurdle to my acceptance of FL’s evidence as being sufficiently accurate and reliable to act upon.

27. As I have outlined above, in the course of giving evidence at the trial, FL’s account about what was occurring when [C] walked in completely and inexplicably changed from breast touching to penile-vaginal intercourse. I regard this as an inconsistency of such enormity that it is simply incompatible with FL giving a reliable account of the key events of their interactions with the defendant. From FL’s overview account and throughout their interview on 9 January 2024, to their affidavit made on 25 October 2025 and through to their further examination at trial, FL consistently narrated the relevant sequence of events as involving penile-vaginal intercourse preceding the breast touching and entry by [C]. FL’s description of the entry by [C] entailed an explosive reaction by [C] and marked the end of the sexual touching by the defendant, both of which are important markers of the significance and memorability of [C]’s entry. In cross-examination, FL was adamant that [C] entered during the act of intercourse, in circumstances where their account about the order of events (breast touching after intercourse) had not changed. This position was untenable, for the two assertions about the order of events and the timing of [C]’s entry cannot, on the entirety of FL’s account, stand together. I do not accept the prosecution’s submission that the matter of the timing of [C]’s entry might be a peripheral matter which does not render their recollection inaccurate. The entry by [C] was described by FL in a way that clearly conveyed that FL was shocked, upset and immediately moved to follow [C] and seek to placate him. It is inconceivable to me that such an emotionally-charged and significant event involving their school friend witnessing sexual misbehaviour perpetrated upon them by his father could be relegated to a peripheral detail. The contradiction relates not only to sequence, but to the very act at the heart of the event: from clothed, seated breast touching to unclothed, laying down penile-vaginal intercourse. The contradiction is unexplained and, in my assessment, inexplicable in a way that is consistent with FL being reliable on this topic. It is significant that the contradiction touches both of the charged offences and, standing alone, it is such as to create a doubt about the occurrence of the acts underpinning the offences. The other inconsistencies in FL’s account, which I will mention briefly, simply have a compounding effect in creating a doubt about whether the acts the subject of the charges occurred as described by them.

28. On the related topics of the timing of the cord checking incident and whether or not it involved touching of FL’s breast/chest area, inconsistent accounts have been established as between FL’s original interview and evidence in cross-examination. To recap, FL originally said this incident occurred after the children had gone to bed, then later said it occurred within 10 minutes of being at the house when the children went to their bedrooms to get something. FL originally said they were not touched during the cord checking incident, then later said that they were touched around the ‘bra area’ at this time. FL was not re-examined with a view to resolving these inconsistencies. One possible explanation for the discrepancy about whether there was touching is that FL did not regard the physical search associated with checking for a cord as inherently sexual or inappropriate and therefore did not characterise it at the time of the interview as ‘touching’. It involves a degree of speculation to invoke that explanation, for it was not one given or implied in the witness’s evidence.

29. As I have sought to demonstrate, the witness’s frustrated outbursts had the effect of curtailing the cross-examination on these topics such that I was not left with a complete or easily understandable account of the state of their recollection on the topic of the cord checking incident. I am satisfied that an incident occurred in which the defendant asked FL whether they were wearing a cord or some sort of surveillance device and that he made some action by way of checking FL physically which involved interference with FL’s clothing, however, I am unable to be satisfied about the timing of that event or what the defendant’s action consisted of.

1. FL’s account about the tattoo has been an evolving one. The defence submits that the failure to mention the tattoo in the original interview is striking, given FL’s preparedness to comment upon the presence of the tattoo gun to Detective Yeomans. FL’s evidence about having told Detective Yeomans about the tattoo in the interview is demonstrably wrong and unsustainable. The defence submits that the agreed fact about the timing of FL’s first disclosure to police about the tattooing (on 22 October 2024)[100] wholly undermines FL’s credit on this topic.

   [100] Exhibit P9 (agreed facts), agreed fact number 5.

2. The prosecution submits that a reasonable explanation for FL’s failure to mention receipt of the tattoo in the interview is that they were not asked. That is true, as far as it goes, but I think that as an explanation it is somewhat undermined by the fact that it was FL who raised the topic of the presence of the tattoo gun and, for reasons I have explained, appeared to have sufficient rapport with Detective Yeomans not to be reluctant about providing intimate detail. Moreover, FL’s evidence in re-examination that [C] was in the lounge room when the defendant gave them a tattoo is irreconcilable with the assertion in their pre‑trial affidavit that [C] walked in ‘after the tattoo incident’.[101]

   [101] Exhibit P9 (agreed facts), agreed fact number 4c.

3. The exhibit photograph of the tattoo, P7, shows a love heart on fair skin. I do not doubt that it is an image of a tattoo on FL’s body. However, the image itself is incapable of supporting FL’s claim that it was the defendant who applied it, and there is no other supportive evidence of this aspect of FL’s claim. There is no objective evidence supporting FL’s claim about when the tattoo was applied to link it incontrovertibly, or even comfortably, to the occasion of their attendance at the defendant’s house.

4. The internal inconsistency in FL’s account as to when in the sequence of events they received the tattoo and whether [C] was present, in conjunction with their failure to mention it to police for nearly 11 months, causes me to doubt that the tattoo was applied by the defendant on the occasion when FL was present at his house. As I am unable to be satisfied that the defendant tattooed FL, I do not use FL’s evidence on this topic in the manner urged upon me by the prosecution, namely, as evidence of discreditable conduct which demonstrates that the defendant was acting in a way as to ‘keep [FL] sweet’[102] or quiet.[103]

   [102] T149.

   [103] T160.

5. With respect to the 30 November 2023 denial by FL of any sexual touching by the defendant, I accept the prosecution’s submission that the context in which that conversation took place, in the defendant’s street and in the vicinity of other persons, is at least potentially reasonably explicable of the complainant withholding a disclosure. FL said that they have a dislike of police, except when they help them.[104] I do not have regard FL’s denial at this time and in this context as significantly depriving their account of credit or cogency.

   [104] T97.

6. I am unable to reconcile FL’s inconsistent accounts on the topic of what was said to Detective Yeomans on 4 December 2023 at Casey’s house. FL’s claim in evidence that they told Detective Yeomans about what are in effect the charged offences is not supported, and the agreed facts as to what they did tell Detective Yeomans on that occasion, about the defendant rubbing his penis on their ‘bum’, is materially different to their original account in interview and their account in evidence. FL demonstrated sufficient understanding of their anatomy to enable me to eliminate confusion about body parts or naming as an explanation for this inconsistency, and indeed the prosecution did not seek to explain the inconsistency in this way. The inconsistency is unexplained, and operates as a further indicator of FL’s account lacking a consistent, reliable core narrative.

7. I accept the evidence of FL that they came to be at the defendant’s house on the evening of 29 November 2023 in the circumstances they described. I accept their evidence that they were permitted to sleep in the lounge room, which was shared by the defendant. I accept that the defendant said and did something which conveyed to FL that he wished to check them for a surveillance device, although I am unable to determine what that conduct involved beyond some form of inference with their clothing. I am unable to draw any reliable inference as to why the defendant engaged in such conduct. Accordingly, I do not use any facet of FL’s evidence on the topic of the cord checking incident as evidence of the defendant ‘testing the waters’ to see whether FL would submit without protest to his advances.

8. As I accept FL’s honesty at a fundamental level, I consider that something probably happened involving the defendant making a physical advance towards them, however, I am unable to be satisfied beyond reasonable doubt that it involved penile-vaginal intercourse and/or touching of the breast in the manner and circumstances alleged as the foundation for the charges.

9. I have sought to set out the significant internal inconsistencies in FL’s account of certain key events on the occasion of their attendance at the defendant’s premises which deprive their account of the essential quality of accuracy. There is no objective evidence in the form of physical evidence, for example, which is capable of remediating this defect in the only evidence of the alleged offences on the prosecution case.

10. [C] was not called to give evidence. I must not speculate about what, if any,[105] evidence he would have given if called.

    [105] Evidence Act 1929 (SA) s 21.

11. The defendant has made a denial of any offending in his record of interview. I make due allowance for the fact that his account did not consist of evidence on oath, has not been the subject of cross-examination and that his denials are self-serving. Against those matters, to the extent that the defendant made statements against his own interests, including about sharing the lounge room sleeping space with FL and of it feeling ‘a bit inappropriate’ for FL to be sharing the couch with him, those statements struck me as being spontaneously made and lacking any element of obvious contrivance.

12. Whilst I do not accept everything the defendant said, in particular about FL coming to lay down next to him, I do not regard his denials of touching or other impropriety towards FL as being self-evidently false or lacking in plausibility. The defendant’s reaction when first taxed with the allegation of indecent assault, which allegation was devoid of detail, was to acknowledge and explain the sleeping arrangement. If, as the prosecution case contends, [C] had walked in on some untoward activity occurring, and the defendant was contriving an account to explain that circumstance, one would expect him to incorporate and meet that detail. The defendant did not. I am unable to exclude the defendant’s denial of touching FL’s breasts or other impropriety as being reasonably possibly truthful.

    Verdicts

13. As to both counts, I find the defendant not guilty.