R v Zorich - [2021] SADC 152

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ZORICH
[2021] SADC 152
Reasons for the Verdict of his Honour Judge Burnett
17 December 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused was charged with one count of maintaining an unlawful sexual relationship with the complainant contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The charge stated that the offence occurred between June 1999 and June 2002 when it was alleged that the accused engaged in two or more unlawful sexual acts with or towards the complainant. The complainant was 13-15 years old at the time of the alleged offences and the accused 21-23 years old. The accused denied the commission of the offence or that he engaged in any unlawful sexual acts with the complainant. The accused gave evidence on oath denying the offence.
The trial was by judge alone. The prosecution did not prove beyond reasonable doubt that the accused engaged in two or more unlawful sexual acts with the complainant and therefore there is a reasonable doubt that the accused committed the offence.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 5, 49(2), 49(7), 50, 50(1), referred to.
R v Mann [2020] SASCFC 69; R v Calides (1983) 34 SASR 355; R v Bauer [2018] HCA 40; R v R, G [2019] SADC 91, considered.

R v ZORICH
[2021] SADC 152
Criminal
Introduction

The accused, Spencer Milan Zorich, was charged with one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The particulars of the offence are that between 24 June 1999 and 13 June 2002, the accused at specified locations maintained an unlawful sexual relationship with E (the complainant) by engaging in two or more unlawful sexual acts with or towards the complainant namely:
(a)Inserting his penis into her vagina on more than one occasion;
(b)Causing her to perform an act of fellatio upon him on more than one occasion.
The accused pleaded not guilty to the charge and elected for trial by judge alone. I now publish my reasons for the verdict that I deliver.
The prosecution relied upon the following alleged acts as the basis for the charges:
(1)The first occasion of penis/vagina intercourse in the bedroom of the complainant;
(2)The rolled-up acts of some 100 occasions of penis/vagina intercourse in the complainant’s bedroom when the accused is alleged to have been snuck into the bedroom by the complainant’s mother without the knowledge of her father;
(3)Penis/vagina intercourse in the back of the car of the complainant’s parents at the Gepps Cross Drive- In;
(4)Penis/vagina intercourse the night before the extraction of the complainant’s wisdom teeth in the bedroom of the complainant;
(5)Penis/vagina intercourse on the floor in the complainant’s bedroom;
(6)Penis/vagina intercourse in the doll room on the occasion that the accused had a stroke;
(78)Penis/vagina intercourse at the bed and breakfast which it is alleged that the complainant and the accused attended;
(8)Act of fellatio in the car while driving at night;
(9)Act of fellatio at the accused’s house in the week following the stroke;
(10)Unparticularised acts of fellatio.
The prosecution also submitted that I should take into account as an uncharged act the occasion when the accused is alleged to have inserted his fingers into the complainant’s vagina, causing an injury to her vagina.
Overview
The complainant lived at [specified location] with her parents, Mr and Mrs E. She was born in June 1986. She therefore turned 13 years of age in June 1999 and 14 years of age in June 2000 and 15 years of age in June 2001 during which period the acts set out above are alleged to have occurred.
The complainant was an only child.
The accused is alleged to have committed the offences over a period of about 15 months when the complaint was 13, 14 or possibly 15, that is in 1999, 2000 and 2001.
The accused was born on 16 March 1979 and therefore turned 21 on 16 March 2000.
The complainant and the accused met in late 1999 or early 2000. As both the complainant and the accused gave evidence that they first met when the accused was 21 years old, it is likely that they first met in or after March 2000. They met through basketball competitions conducted at a sports facility. At that time, the complainant was playing in a mixed basketball team. The accused was playing in a men’s team basketball and also umpiring.
Although there is a dispute as to whether it was the complainant or the accused who made the first approach, it is common ground that the complainant and the accused went on some dates together. The complainant says they went on dates alone but the accused says they were always in the company of others. It is also in dispute what the complainant told the accused about her age: her evidence was that she told the accused she was 13 years old going on 14, whilst he said she told him that she was 16 years old, going on 17 years old.
The complainant gave evidence that a sexual relationship commenced not long after she met the accused and that the acts set out above occurred over the following 15 months or so. The complainant gave evidence that her relationship with the accused was facilitated by her mother, Mrs E, who would sneak the accused into the complainant’s bedroom late at night after Mr E had gone to bed and without his knowledge.
There was a defence case. The accused gave evidence soon after he met the complainant, he was engaged to drive the father of the complainant, Mr E, to medical appointments and work. Mr E was suffering from a kidney disease and required dialysis, although the period when that was required is not clear. Mr E also received two kidney transplants.
The complainant gave evidence that the relationship, including the sexual relationship, ended in 2001 following an incident on a basketball court. The accused gave evidence that any dating of the complainant ended when he found out she was turning 14 and not 17 and that the driving of Mr E ceased after the accused suffered a stroke in April 2001.
Neither Mr E nor Mrs E gave evidence. Mrs E now lives in the United States and did not respond to police requests for an interview. Mr E died in 2010.
Elements of the offence
The prosecution must prove beyond reasonable doubt the following elements of the offence.
First, that the accused was an adult at the time of the alleged offence. It is an agreed fact that the accused was born on 16 March 1979 and therefore was an adult at the time of the alleged offending in 1999-2001.
Secondly, that the complainant was a child at the time of the alleged offending. A child is a person who is aged 17 years or under. It was an agreed fact that the complainant was born in June 1986 and was therefore 13-15 years old, and therefore was a child, in 1999-2001.
Thirdly, the prosecution must prove that the accused knowingly maintained a relationship with the complainant during the relevant period. The relationship must comprise more than the alleged sexual acts alone, but in considering whether there is a relationship for the purposes of s 50 of the CLCA, all of the circumstances of the association between the accused and the alleged victim must be taken into account.[1] A relationship may be resumed after a period of absence and may evolve over time.[2] Whether there was a relationship is a question of fact.[3] A relationship, without being limiting, may involve a connection between two or more people based on social interactions and mutual goals, interests or feelings.[4] The duration, frequency, nature and continuity of the interactions between two people all bear on the question of whether a relationship exists.
[1] R v Mann [2020] SASCFC 69 at [12].
[2] Ibid at [28].
[3] Ibid at [21].
[4] Ibid at [23] citing the definition of relationship from the Oxford English Dictionary.
In the present case, on the complainant’s evidence, there is no doubt that the accused knowingly maintained a relationship with her throughout the relevant period. On her evidence, quite apart from the sexual acts, the accused and the complainant were dating, going out on social activities together and with friends and the complainant’s family and were boyfriend and girlfriend.
I am also satisfied that if the evidence of the accused is accepted that the relationship between the complainant and the accused changed when the complainant told the accused that she was 13 turning 14 and not 16 turning 17, there was still a relationship between the accused and the complainant. Quite apart from the alleged sexual relationship, the accused on his own evidence was a family friend, drove Mr E on a regular and frequent basis, attended the E’s house for dinner and movies and played on a mixed basketball team with the complainant.
Fourthly, the prosecution must prove that whilst the relationship was being knowingly maintained, the accused committed two or more unlawful sexual acts with or towards a child. The particularised acts are unlawful sexual intercourse by penis/vagina sex and fellatio. Both of these acts fall within the definition of sexual intercourse within s 5 of the CLCA. Pursuant to s 49(2) of the CLCA, a person who has sexual intercourse with any person under the age of 17 years shall be guilty of an offence. Pursuant to s 49(7), consent to sexual intercourse is not a defence to a charge under that section. Therefore, to establish that the accused committed the unlawful sexual act of unlawful sexual intercourse, the prosecution must establish beyond reasonable doubt that:
(1)The accused had sexual intercourse by penis/vagina sex or by fellatio;
(2)The complainant was under the age of 17 years at the time of that sexual intercourse,
rendering consent irrelevant and the act of sexual intercourse unlawful.
There was no dispute in this trial that should the court be satisfied that the accused committed two or more of the alleged sexual acts, each act would constitute an offence and an unlawful sexual act.
The dispute was whether the prosecution had proved beyond reasonable doubt that the accused committed the alleged sexual acts with the complainant.
Legal Directions
I give myself the following legal directions.
First, the accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt by the prosecution. The burden of proof rests wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or show that the accused is probably guilty. The prosecution must prove each element of the offence beyond reasonable doubt. If there is an explanation consistent with the innocence of the accused or there is uncertainty as to where the truth lies, then the accused must be found not guilty.
Secondly, the accused elected to give evidence. The accused was not obliged to do so. He had the right to remain silent in answer to the charge, leaving it to the prosecution to prove each of the legal elements of the charge. As the accused has given evidence in his defence, and called witnesses as part of his case, that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. It is for the prosecution to prove the accused’s guilt. He does not have to prove his innocence. Subject to that, the accused’s evidence is to be assessed like the evidence of any other witness in this trial.
Thirdly, special arrangements were put in place for the complainant to give her evidence. She gave evidence by way of audio-visual link and was accompanied by a court companion. I have not drawn any adverse inference against the complainant because of such arrangements. Ms KA and Ms NA also gave evidence by way of audio-visual link from Victoria.
Fourthly, the evidence of the complainant in initially telling her then boyfriend, and then her psychologist, Ms Willcocks in 2017 is potentially relevant as to how the allegations first came to light, and as evidence of the degree of consistency of conduct. The evidence of the initial complaint is not admitted as evidence of the truth of her statements that the accused engaged in sexual acts with the complainant. There may be many reasons as to why an alleged victim of sexual assault makes a complaint at the time that they did. I note that that the defence has submitted that the evidence given by the complainant is inconsistent on this topic and I will deal with that letter.
Fifthly, the accused gave evidence that he had not been in trouble with the police prior to this charge being laid against him.[5] Although no submission was made by either party about this topic, evidence of the accused’s good character is relevant for two purposes. First, it is relevant to the question of whether the accused committed the offence and is a factor affecting the likelihood of the accused having committed the offence. Secondly, the accused's good character is relevant in assessing the credibility of his evidence at trial. In the circumstances of this case, I do not place any weight on this evidence, given that there was no other evidence and no submissions were made about the character of the accused.
[5] T 333.
Sixthly, this case involves a conflict between the evidence of the complainant and the accused. It is not a matter of whom is to be preferred between them, but rather the onus is always upon the Crown to prove all of the elements of the offence beyond reasonable doubt.[6]
[6] R v Calides (1983) 34 SASR 355.
Seventhly, there has been a period of approximately 20 years between the alleged offending and the trial. That delay has resulted in a significant forensic disadvantage to the accused in that that there will be obvious difficulties for an accused in challenging and responding to allegations made in respect of conduct that occurred 20 years ago. The court must take that forensic disadvantage into account when scrutinising the evidence of the prosecution and must take it into account when assessing whether the prosecution has proved its case against the accused beyond reasonable doubt. In the present case, the forensic disadvantage arises because:
(1)Mrs E was unable or unwilling to give evidence as she left Australia in about 2019 to reside overseas. Her evidence would have been relevant to the accuracy and credibility of the complainant’s account of her relationship with the accused. Mrs E also was said to have found a condom in the bedroom of the complainant, taken the complainant to obtain birth control, organised the bed and breakfast stay of the accused and the complainant (when she was in hospital for a minor operation), facilitated the accused to sneak into the house of the complainant and taken the complainant and picked her up from the accused’s house at the time that the complainant is alleged to have performed fellatio on the accused. Mrs E’s evidence would have also been relevant to the accuracy and credibility of the accused’s evidence that he was engaged to take Mr E to medical appointments and to work.
(2)Mr E has died. His evidence would have been relevant to the accuracy and credibility of the accused’s evidence that he was engaged to take Mr E to medical appointments and to work. There is now no independent evidence available as to the accuracy or credibility of the complainant’s account. Mr E’s evidence would have also been relevant to the accuracy and credibility of the complainant’s evidence about the relationship between the accused and the complainant, including a conversation between Mr E and the accused and the complainant about the accused taking the complainant to a winery.
(3)The lack of documentary evidence relating to the stay at the bed and breakfast (which would include Mrs E’s operation at that time).
(4)The overall passage of time has led to the complainant being unable to recall a number of matters in detail. That factor will have disadvantaged the accused because of an inability to test the complainant’s account in detail.
(5)If there was less time between the events and trial, the accused may have been able to remember back to the relevant time and remember further details.
(6)Mr Adam Zorich, the brother of the accused gave evidence that there was no occasion when he walked in on the accused and the complainant at the house of his (and the accused’s) parents. In cross-examination, he conceded that he might have forgotten such an occasion. If there had been less time between the events and trial, Mr Adam Zorich’s evidence may have discounted that possibility.
(7)Mrs Joy Elliott, the mother of the accused gave evidence that she took the accused to the Accident and Emergency department of the local hospital at the time of the stroke. When put to her in cross-examination that she may have been mistaken in that memory, she denied that possibility. That denial would have been of greater evidentiary value if the trial had been held closer to the alleged events.
(8)Medical practitioners may have been able to be called and had a memory of the attendance of the accused at the Accident and Emergency department at the time of the stroke of the accused.
(9)The general practitioner who the complainant says prescribed her the birth control pill may have been able to be called and given evidence as to his records and consultations with the complainant concerning birth control.
If there had been considerably less time between the events and trial, the accused might have been able to remember who he was with and therefore produce evidence discounting the evidence of the complainant and supporting his evidence in one or more ways. This would have included an opportunity for the accused to interview potential witnesses who now with the passage of time would have little, less or no recall of events.
Finally, in relation to the uncharged act, I must be satisfied that the act was committed by the accused. Proof that the accused committed such discreditable conduct is not a substitute for impermissible propensity reasoning. The evidence is relevant to whether the accused was sexually attracted to the complainant and whether he acted on that sexual attraction and may do so when the opportunity to act on that sexual attraction presents itself again.[7]
[7] R v Bauer [2018] HCA 40 at [47]-[51]; R v R, G [2019] SADC 91 at [114]-[118].
The contentious issue at trial was whether the prosecution has proved that the accused committed two or more of the alleged unlawful sexual acts against complainant and maintained an unlawful sexual relationship with the complainant. The prosecution case relied almost entirely on the evidence of the complainant although it adduced some evidence confirmatory of the surrounding circumstances. The evidence of the unlawful sexual acts relied entirely on the evidence of the complainant. In these circumstances, if I am to convict the accused, I must accept the evidence of the complainant as a truthful and reliable witness. I must accept her evidence beyond reasonable doubt and reject the accused’s evidence denying the unlawful sexual acts as a reasonable possibility.
Background
It was common ground that the accused and the complainant met at the sports facilityu through a basketball competition that was being conducted at the facility.[8] The complainant played on a mixed team which at that time did not include the accused.[9] The accused played on a men’s team but also umpired men’s games.[10]
[8] T 13-14; T 36-38; T 283-284.
[9] T 14; T 38.
[10] T 282-283.

There is a dispute as to how the accused and the complainant came to know each other. The complainant gave evidence that the accused umpired some of her basketball games and that following one of those games, the accused approached her and asked her out.[11] She said that she told him her age (which was 13) and he said “I guess we can go and see the Pokemon movie then”.[12] She said that she told her mother who encouraged her to go out on a date with the accused, saying to her words to the effect “Oh, baby, age ain’t nothing but a number.”[13] The complainant and the accused then started dating.[14] Her mother was very much in favour of the relationship.[15]
[11] T 14; T 16; T 38.
[12] T 17.
[13] Ibid.
[14] Ibid.
[15] Ibid.
The accused gave evidence that he first met the complainant shortly after his 21^st birthday in early 2000 (he turned 21 in March 2000).[16] This corresponds with the evidence of the complainant who said that she was 13 years of age when they met. The accused gave evidence that he only umpired men’s games and not mixed games and that the complainant approached him after he had umpired a men’s game and they had a conversation.[17] He said that she asked him how old he was and he said that he was 21 and she said that she was 16, turning 17 soon.[18] He said that she gave him a gift (like a dog tag chain)[19] and a postcard with the names, email addresses and phone numbers of the complainant and also of her mother.[20] He said that he rang her up a couple of days later to set up a date to have dinner and see a movie.[21]
[16] T 283.
[17] Ibid.
[18] Ibid.
[19] Ex D 18; T 284.
[20] T 284; Ex D16.
[21] T 285.
It is not possible to make a definitive finding as to how the accused and the complainant first met and whether the complainant told the accused her age. The provision of a postcard with the complainant’s and her mother’s phone and email details was equivocal. I was not convinced by the accused’s evidence as to how he discovered that the complainant was 13 years of age. He said that she told him in her bedroom some time later (when she was about to have her fourteenth birthday). This was contrary to his earlier evidence that he did not go to her bedroom, but he then said that her mother was just outside the bedroom door when she told him her age.[22] I also consider that over a period of months (from March 2000 to June 2000 when the complainant turned 14) that it would become obvious to a 21 year old that the complainant was not 16 turning 17 but was younger. Her appearance, her interests, her friends, her schooling would all indicate this. That however does not mean that the accused knew that she was 13 years of age when he first met her.
[22] T 358-359.
The relationship between the accused and the complainant took different courses, according to the evidence of the accused and the complainant. The complainant gave evidence that she and the accused would go on dates (by themselves) to the movies or would watch movies in her bedroom.[23] The relationship, on the complainant’s evidence, soon moved to a sexual relationship.[24]
[23] T 17.
[24] T 18.
Apart from the circumstances involving the alleged sexual acts which I describe below, the complainant also gave evidence of an occasion when the accused and her were to go to the movies at a nearby cinema, but because they were late they instead went to the winery where the accused was working and climbed ladders to inspect the wine vats.[25] The complainant recalls her father being upset when they returned home because they had gone to a different location than that agreed upon.[26] The accused denied this event occurred and said that he did not work at the winery until 2003.[27]
[25] T 66-67.
[26] T 66.
[27] T 372.
The accused had a different version of the relationship. He gave evidence that the first date involved being picked up by the complainant and her mother, going back to the complainant’s house to meet her father and then the complainant and her parents and the accused all going together to the movies.[28] The accused then said that on the occasion of the first date, when they returned to the complainant’s house he was offered a job to drive Mr E to work and dialysis.[29] Mr E had a serious kidney disease and in fact had two kidney transplants and required dialysis at various times. The accused gave evidence that he would drive Mr E to dialysis or work three to four times a week[30] which was later reduced to 2-3 times a week.[31] He gave evidence that he received $800 per week for this driving.[32] The accused gave evidence that after bringing Mr E home at night, he would sometimes have dinner with the family and then watch a movie with them, either at their house or at the cinema.[33] He denied that he would go out alone with the complainant on a date.[34] He denied that the relationship extended to a sexual relationship. He gave evidence that after he learned the complainant was only 13, he stopped all romance and affection but that he remained friendly with her.[35] The accused gave evidence that he did kiss the complainant on some occasions (when he thought she was 16) when they had a moment of being alone, which was not very often.[36]
[28] T 285; T 387.
[29] T 286.
[30] T 290.
[31] T 293.
[32] T 293; T 354.
[33] T 294; T 301.
[34] T 300.
[35] T 297.
[36] T 298.
The accused gave evidence that his employment and friendship with the complainant ended when he had a stroke in April 2001. The complainant gave evidence that the relationship ended following an incident on the basketball court, later in 2001.[37]
[37] T 32; T 129-131.
Two friends of the complainant gave evidence. KA gave evidence that she recalled the accused as the boyfriend of the complainant and also playing basketball on their team.[38] She said that she could recall going out with them to a nearby shopping centre or the movies.[39] KA described two occasions when there were physical interactions between the accused and the complainant.[40] I do not consider that these incidents shed any light on the nature of the relationship between the accused and the complainant as they were minor or incidental in nature and not referrable to any form of sexual relationship. KA said that the relationship between the accused and the complainant took place between 2002-2004,[41] but that was clearly wrong in that the evidence of both the complainant and the accused was that the relationship or friendship (depending on how it was characterised) was from about 2000 to 2001.
[38] T 243.
[39] T 244; T 245.
[40] T 248.
[41] T 244; T 249.
KA also gave evidence that the accused was employed to drive Mr E,[42] almost a retainer.[43] She said that he was at the house because during the time he was the complainant’s boyfriend, he also drove Mr E to dialysis.[44]
[42] T 244; T 245.
[43] T 245.
[44] T 243.
NA, the sister of KA, also gave evidence, However, she did not have any specific memories of seeing the accused and the complainant together.[45] Her evidence rose no higher than saying the accused was spoken of as the complainant’s boyfriend although she could not recall by whom.[46]
[45] T 252.
[46] T 253.
The complainant gave evidence that she did not recall whether the accused was hired by her mother to drive her father to dialysis but she would not be surprised.[47]
[47] T 210.
I am satisfied on the evidence that the accused was employed to drive Mr E. I am satisfied that the driving occurred on a regular basis. The evidence of the accused in this regard is supported by the evidence of KA.
I also consider it likely that there were occasions when the accused went out with the complainant and her friends.
The complainant said in her statement to the police that she and the accused used to message each other a lot.[48] In her evidence, she said that although she accepted she said that in her statement on 22 May 2019, she now had no recollection of that messaging.
[48] T 201.
For the sake of completeness, I note that Detective Brevet Sergeant Schuurmans gave evidence for the prosecution. His evidence was not controversial. He gave evidence about the record of interview of the accused on 29 August 2019 and also other steps undertaken in the investigation. Dr Gallagher also gave evidence for the prosecution and I refer to her evidence later in these reasons in relation to the uncharged act.
The accused, his mother, Mrs Joy Elliott and the brother of the accused, Mr Adam Zorich all gave evidence. I will refer to their evidence during the course of these reasons.
First Occasion-penis/vagina intercourse – bedroom of the complainant
The complainant gave evidence that the first sexual contact between herself and the accused occurred in her bedroom when she was 13 years of age. She said that the accused told her to sit on top of him and straddle him. They were both clothed.[49] She was wearing denim shorts at the time and he pulled her shorts and her underwear to the side and inserted his penis into her vagina.[50] The complainant said that both her mother and father were home at the time.[51] The complainant said that she did not tell anyone what happened.[52]
[49] T 18; T 51; T 53.
[50] Ibid.
[51] T 52-53.
[52] T 19.
The accused denied that he had sexual intercourse with the complainant at any time including in the bedroom after they had watched a movie.[53] He also gave evidence that he never lay in bed with her to watch a movie.[54]
[53] T 300.
[54] T 300.
Subsequent penis/vagina intercourse in the bedroom (including before having her wisdom teeth out)
The complainant gave evidence that she and the accused had penis/vagina intercourse about twice a week over the course of their relationship, that is 12-18 months.[55] The complainant said that after her father went to bed, the accused was snuck into her house by the complainant’s mother who was waiting for him at the front door.[56] The complainant said that this arrangement was made so that her father would not discover that the accused was sleeping with the complainant.[57] There were some times when the accused was hanging around her house, although these were less often than when he was snuck in by the complainant’s mother.[58] On those occasions, the complainant said that her mother would often tell her and the accused to go to her room and watch movies.[59] However, on these occasions after watching the movie he would leave the house and then sneak back in.[60] The complainant said, after sneaking in, the accused would then go through the house to her bedroom which was at the rear of the house.[61] She said that her father was not aware that the accused was sneaking into the house.[62] The complainant gave evidence that she recalled one occasion when the accused snuck into the house in the way described on the night before she had her wisdom teeth out and that she had sex with the accused when she had asked him not to because she wanted to sleep.[63]
[55] T 54.
[56] T 19.
[57] T 49.
[58] T 48-49.
[59] T 49.
[60] T 49.
[61] Ibid.
[62] T 21.
[63] T 24.
The complainant was not able to recall how the arrangements were made for the accused to sneak into the house although she presumed that her mother and the accused made the arrangements over the telephone.[64] She accepted someone had to be communicating with the accused to assist him to sneak into the house.[65] She said that the accused would park his car around the corner so that her father would not see it in the morning.[66] The complainant said that the accused would still be hiding in her bedroom when she and her father left in the morning for school and work (the complainant said that her father took her to school at a private college).[67] She said that he never found out what was happening.[68]
[64] T 54.
[65] T 56.
[66] T 19.
[67] T 55.
[68] T 55.
The complainant said that her mother found out quite early in the relationship that the accused and the complainant were having sex together.[69] The complainant said that her mother then arranged for her to see their general practitioner and take birth control medication named Diane-35.[70] When put to her in cross-examination, the complainant denied that she was taking the medication for acne.[71] She could not recall whether she suffered from acne as a young teenager.[72] The medical records of the complainant’s doctor reveal that the complainant first received Diane-35 on 29 January 2001 for acne.[73]
[69] T 28.
[70] T 29.
[71] T 225-226.
[72] T 226.
[73] Ex P13.
The accused denied that he committed the acts of sexual intercourse. He gave evidence that after performing the drive for Mr E, he might sometimes hang around and watch a movie with the family and he would then be driven home.[74] He said that he never watched a movie in her bedroom.[75] The complainant in turn completely disagreed that the primary purpose of the accused’s association with the family was as a driver of Mr E.[76]
[74] T 294.
[75] T 300.
[76] T 210.
The accused’s mother, Ms Joy Elliott gave evidence. On this topic, she said that to her knowledge, the accused did not spend nights way from their home in 2000 or 2001.[77]
[77] T 428.
Penis/vagina intercourse at the Gepps Cross Drive-In
The complainant gave evidence that on one occasion she and the accused had sex at the Gepps Cross Drive-In.[78] She said that they had borrowed the family station wagon and she and the accused were lying in the back where they had sex.[79]
[78] T 24.
[79] Ibid.
The accused denied that they sex at the Gepps Cross Drive-In.[80] He said that he had a memory of attending a drive-in on one occasion and that Mrs E drove them to the Drive-In and they were not alone.[81]
[80] T 364.
[81] T 300.
Penis/vagina intercourse on the floor of the complainant’s bedroom
The complainant gave evidence that the accused had sex with her on one occasion on the floor of her bedroom.[82] She said that her head was near the dresser and that she was facing the door and the accused was in between her and the door.[83] She said that she was sitting up.[84] She gave evidence that she recalled the tiles being hard and cold and that the accused was physically aggressive and that it was physically uncomfortable.[85] She said that the time that they had sex on the floor was one of the occasions when the accused had snuck into her room.[86]
[82] T 21-22.
[83] T 22.
[84] Ibid.
[85] T 22.
[86] T 57-58.
During cross examination, it was put to the complainant that in her interview with the police she said that “Spencer was either leaning back against my dresser or was sitting back with his arms out behind him”.[87] In response to questioning about her evidence and her statement to the police and whether they were inconsistent, the complainant said:[88]
QWhich is the case, do you say, was it Spencer facing the door or you facing the door.
ATo be honest, I can’t remember exactly. We were at an angle and I mainly remember the cold tile and my arms behind me and it hurt my wrists.
QSo now do you say that you can’t remember who was facing the door.
ANo, I mainly remember the position we were in and where in the room and the tile, rather than exactly which way.
QYou agree that you were both facing each other.
AYes
[87] T 59-60.
[88] T 64.
The accused denied that he had sex with the complainant on this occasion or at all. He said that he did not know whether the bedroom floor was tiled at the time or not.[89]
[89] T 358.
Penis/vagina intercourse in the doll room on the occasion that the accused had a stroke
The complainant gave evidence that there was an occasion when they had penis/vagina intercourse in the doll room during the day when her parents were not home.[90] She said that the accused stopped and vomited and peed himself.[91] She said he could not explain himself and was non-verbal.[92] She said that after about five minutes he could move normally and get dressed.[93] She gave evidence that she contacted her mother and said “...I remember her [my mother] telling me to tell - or both of us to tell the doctor that we were practising basketball because I think he had had a stroke and they asked questions about if there was, like physical activity when it occurred and things like that.”
[90] T 26.
[91] T 26.
[92] T 75.
[93] T 76-77.
The complainant gave evidence that she and her mother drove the accused to hospital.[94] She said that she did not have a specific memory of arriving at the emergency department with the accused,[95] but that they did not just drop him there and leave.[96] She said that she was told that the accused had a stroke but was not sure if she was told that day or later.[97] She said that she could remember her mother being very concerned about him.[98]
[94] T 26.
[95] T 81.
[96] T 83.
[97] T 84.
[98] T 88.
The accused gave a very different account of the stroke. He denied that the stroke occurred at the complainant’s house and said that it occurred at his house.[99] He said that he woke up one morning with a migraine headache and body aches and pins and needles.[100] He stayed in bed until later in the day when his mother took him to the emergency department of the local Medical Centre where he was prescribed some Panadol Forte and sent home.[101] He said that he didn’t feel better and went back to the emergency department of the Medical Centre a few days later, where on this occasion he was referred to a specialist. On both attendances at the Medical Centre, he said that he was accompanied by his mother.[102] He denied that Mrs E and the complainant took him on the second occasion to the Medical Centre.[103] He was later an inpatient at Modbury Hospital where he was diagnosed as having two strokes.[104]
[99] T 320; T 343.
[100] T 320.
[101] Ibid.
[102] T 322.
[103] T 345.
[104] T 321.
The accused gave evidence that between the two visits to the Medical Centre and also after his release from Modbury Hospital, he was still feeling unwell.[105] In the period between the two visits to the Medical Centre, he gave evidence that he continued to have all the symptoms, including the migraine headache and the tingly sensation and the pain.[106] After his release from Modbury Hospital, the accused gave evidence that he was unwell and was bedridden for a long period.[107]
[105] T 323.
[106] T 323; T 324.
[107] T 325.
He said that following the stroke he was recuperating at home for some time and could not drive for some months.[108] He said therefore he was not able to drive for Mr E during that time. He further said that he did not drive Mr E subsequent to his stroke. He did not recall telling Mr E that he could not drive him to work and medical appointments.[109] Towards the fourth quarter of that year, 2001, he recalled playing mixed basketball again.[110]
[108] T 325.
[109] T 326.
[110] T 326.
Mrs Joy Elliott also gave evidence about the stroke. She said that in April 2001, the accused was suffering from severe headaches. She says that she can recall that the headaches persisted long enough for her to take him to the accident and emergency department rather than the normal doctor.[111] She said that the first time that they visited Accident and Emergency in April 2001 was one evening. She said that she took him to the hospital and was with him during that visit.[112] The accused was sent home after that attendance, it being thought that he had a migraine.[113]
[111] T 417.
[112] T 418.
[113] T 418.
Mrs Elliott gave evidence that the accused remained unwell and she took him again to the Accident and Emergency Department of the Health Service.[114] She said that they saw the same doctor as on the previous occasion.[115] On this occasion, the accused was sent for X-rays or MRI and referred to a specialist.[116] Following the MRI, she was told by the specialist, a Dr Norton, that the accused had had a stroke.[117] The accused was then admitted to Modbury Hospital.[118] Mrs Elliott said that following the stroke, it was some time before the accused could drive again and he did not drive for Mr E after the stroke.[119] In cross-examination, Mrs Elliott said that she took the accused to the Accident and Emergency Department of the Health Service on both occasions and that there was no possibility that she was mistaken.[120] She said that on both occasions, she filled in the forms providing details of the accused, including his medicare number. She said that it was her writing on the exhibit, P 20.[121] Although challenged by the prosecution, I accept that it was Mrs Elliott’s writing on these forms. It is the same writing on both forms and contained details that would likely only be known by Mrs Elliott such as the medicare number.
[114] T 419.
[115] T 420.
[116] T 420.
[117] T 422.
[118] T 422.
[119] T 425.
[120] T 432-433.
[121] T 433.

Attendance records from the Health Service were admitted into evidence.[122] They show that the accused attended Accident and Emergency on 18 April 2001, having been registered at 8.30pm and seen at 10pm. As I said, the top part of that form was completed by Mrs Elliott. The record states that the accused had been vomiting for 24 hours, had headaches and pins and needles over the body.[123] The accused was prescribed painkillers.[124] The second form shows that the accused attended Accident and Emergency on 22 April 2001.[125] Again, the top part of the form was completed by Mrs Elliott. The form also records that he vomited 4 days ago. On this occasion, the accused was referred for further testing.
[122] Exhibit P 20.
[123] Exhibit P 20 (p 1).
[124] Ibid.
[125] Exhibit P 20 (p 2).
Records from Benson Radiology[126] show that the accused had a CT scan on 23 April 2001 and concluded that lacunar infarcts were a definite possibility and further cardiovascular investigation could be considered.
[126] Ex D31.
The records of Modbury Hospital[127] show that the accused was admitted into Modbury Hospital on 27 April 2001 and discharged on 30 April 2001. The accused is recorded as having awoken one morning with a generalised headache, vomiting and visual disturbance, followed by 10 days of intermittent headache and vague sensory disturbances, right sided.[128]
[127] Ex D32.
[128] Ex D 32.
Penis/vagina intercourse at the Bed and Breakfast
The complainant gave evidence that there was an occasion when her mother required minor surgery and that she rented for the complainant and the accused a Bed and Breakfast in [specified location] for at least two nights.[129] She said that she did not have any specific recollection of having sex at that location.[130] She remembered that there were condoms there and lots of food.[131] The complainant further said that her mother had told Mr E that she was staying with two friends on the basketball team, S and J.[132]
[129] T 25.
[130] T 25.
[131] T 25.
[132] T 25; T 69.
In cross-examination, when asked where she had sexual intercourse with the accused, the complainant gave the following evidence:[133]
[133] T 46.
QNow you’ve given evidence about having sex with Mr Zorcih at your house at [address specified].
AYes.
QAnd at his house at [address specified].
AYes.
QIn his car.
AYes.
QAnd your parents’ car?
AYes
QThose are the times that you specifically remember but you say it happened many more times than that.
AYes and also at the Airbnb.
It appears that the complainant in the above passage is suggesting that she has a definite memory of having sex at the Airbnb. That would be contrary to her earlier evidence. However, there is some ambiguity in the questioning and I therefore are not prepared to make such a finding of inconsistency in these circumstances.
In cross-examination, the complainant said that her mother wanted her to see the accused and she could not make that happen if she was not there (because she was in hospital).[134] In cross-examination, it was put to the complainant that she did not tell the police about the food being available. I do not place any weight on that suggestion, as there is no evidence that the police asked her about that topic. There is no reason why that topic would have come up during the interview.
[134] T 69; T 70.
The accused gave evidence that he did not ever stay at a cottage or a Bed and Breakfast with the complainant.[135]
[135] T 300.
Fellatio at the house of the accused
The complainant gave evidence that the accused made her commit fellatio on him at his house after he had been in hospital for his stroke.[136] She said she visited him at his home and that was the only occasion when she went inside his home, although there were occasions when she had been outside his home when her mother picked him up or dropped him home.[137]
[136] T 26.
[137] T 27.
She said that they went into the lounge room and sat on the lounge with the accused where the alleged act of fellatio was committed.[138]
[138] T 84.
The complainant gave evidence that no one else was present at the home, but that the accused’s brother, Adam, came home, which the accused was not expecting.[139] She said that when Adam came in, the accused tidied up the blanket to make it seem like nothing had happened.[140] She said that she remembered that Adam was wearing a blue t-shirt but could not recall if he said anything.[141] She said the accused did not ejaculate because his brother came home and they didn’t have enough time.[142] In her statement to the police, the complainant admitted saying “I cannot recall if Spencer ejaculated or not”.[143] She said that the probable reason why she told the police that she did not recall whether Spencer ejaculated or not was because this was the first time that she had spoken to anyone about this and she was very traumatised.[144]
[139] T 27.
[140] T 27.
[141] T 112.
[142] T 105.
[143] T 106.
[144] T 106.
The complainant also agreed that she said to the police “I cannot recall if Spencer’s brother Adam came home while I was performing oral sex on Spencer or if it was just after I had finished”.[145] She said that when Adam entered the room, the accused was adjusting the blanket so that it was not so obvious. That is why she was not sure what happened.[146]
[145] T 112.
[146] T 112.
I accept that the provision of the statement would have been very traumatic for the complainant.
She said that her mother took her to the house and picked her up.[147]
[147] T 27.
In cross-examination, the complainant said that this incident occurred within a week of the stroke.[148] It is unlikely that the incident occurred within a week of 22 April 2001 given that the accused was in Modbury Hospital at that time and then spent some time recuperating. However, given the passage of time, I do not place any weight on that timeframe not being accurate. Similarly, I do not consider that any timeframe specified in the complainant’s statement to the police gives rise to any material inconsistency.[149]
[148] T 88-89.
[149] T 90.
There was evidence about the layout of the house of the accused’s parents and (1) the practice of visitors to use the backdoor and if coming to the front door, to be redirected around to the backdoor and (2) the practice of the family of the accused to reserve the lounge room for the use of Mrs Elliott and that the boys used the back area to socialise.
I do not consider either of these matters to be of any weight. As Mrs Elliott conceded, even though the front door was locked and rarely used, there was a key to the front door. Therefore, had the complainant come to the front door, there is no reason why the accused would not have let her in. Similarly, the practice of the family to reserve the use of the lounge area for Mrs Elliott says little about whether the accused would use this room in the circumstances of the alleged acts - ie when he was home alone and recovering from a stroke.
The complainant was also subject to cross-examination about the placement of the couch and inconsistencies in her evidence and her statement to the police on that topic. Again, given the passage of time, I do not consider any inconsistencies on this topic to be of any weight. Given that the events occurred over 20 years ago, it could not be expected that a visitor to the house would have a precise memory of this fact.
The accused denied that the complainant visited his home after the stroke or that she performed fellatio on him on that occasion, which was interrupted by the arrival of Adam.[150]
[150] T 368-369.
Adam Zorich, the brother of the accused gave evidence. He recalled the accused having a stroke.[151] He said that he did not see the complainant performing fellatio on the accused or having just finished fellatio in the lounge room.[152] He also said that he never saw the accused with a girl in the lounge room or any room of that house.[153] In cross-examination, Adam Zorich was asked whether it was possible that he saw his brother with a girl in the house and that it had fallen off the edge of his recollection.[154] He confirmed that it was possible.[155] In re-examination, he said that it did not change his evidence about not seeing the accused in the lounge room with a girl.[156]
[151] T 395.
[152] T 399.
[153] T 399.
[154] T 403.
[155] T 403
[156] T 403.
I accept the evidence of Adam Zorich as not having witnessed or been present at the incident complained of. As he conceded, it is possible that he now cannot recollect that incident.
Act of fellatio in car
The complainant gave evidence that she performed fellatio on the accused in the accused’s motor vehicle at [specified location].[157] She said that he was driving around in his vehicle when he forced her head and mouth around his penis.[158] She said that it was night time and it was raining.[159] She said that she could not recall whether he ejaculated, but she thinks that he did, but that she doesn’t remember the moment it happened, she just remembers the taste.[160]
[157] T 23.
[158] T 23.
[159] T 23.
[160] T 23.
The accused denied the incident or asking the complainant to perform fellatio in his car.[161] He further denied driving alone with her on a dark, rainy night.[162]
[161] T 300.
[162] T 300.
Unparticularised acts of fellatio
The complainant gave evidence that there were other occasions of oral sex but she does not remember them as clearly.[163] Other than this brief mention of those acts, there was no other reference in her evidence (or in the evidence of any other witness) to these acts.
[163] T 35.
Uncharged act – injury to vagina
The complainant gave evidence about an occasion when she and the accused were having sex and he was penetrating her vagina with his fingers.[164] She said that he missed and dug his nails into the skin of her vagina.[165] She said that there was a flap of skin that was removed and quite a lot of bleeding.[166] In cross-examination, she said that she could remember a flap of skin loose, but that it did not detach completely.[167] She could not say when this incident occurred.[168] She says that she still has a raised scar in that area.[169] The complainant said that she did not seek medical treatment or tell her mother about the incident.[170]
[164] T 31.
[165] T 31.
[166] T 31.
[167] T 145.
[168] T 73.
[169] T 146.
[170] T 147.
Dr Maureen Gallagher gave evidence on behalf of the prosecution. She is a medical practitioner who works at Yarrow Place which provides medical services and forensic services to persons who have complained of sexual assault.[171] Dr Gallagher has extensive experience in her areas of expertise.
[171] T 155.
Dr Gallagher examined the complainant on two occasions in 2021. She said that the complainant told her that she was concerned about some genital scarring from an assault in 2000 when “he was using his hands, he took them in and out, all the way out and all the way in”. On this occasion, he jammed his nails and took a bit of flesh with him when he shoved them inward. I don’t remember how many fingers he used, maybe two or three. I remember blood and it hurt for a long time”.[172]
[172] T 156.
On her first examination, performed on 22 April 2001, Dr Gallagher made three relevant findings.[173] They were (1) there was a raised area of tissue, about 4mm by 1mm, on the labia minora, which are the inner folds of skin just outside the vagina, (2) a mild erythema (redness) at the posterior forchette. which was resolved by the time of the second examination and (3) linear area of pallor that was only apparent with stretching of the posterior forchette region. That would generally indicate that blood supply to that area had been compromised.
[173] T 157-159.
On the second examination of 6 May 2021, the first and third findings of the previous examination were confirmed and it was observed that the mild erythema had resolved.[174] At the second examination, which was an intrusive examination, mild vaginismus and firmness of the hymenal rim was found.[175] Vaginismus is the involuntary contraction of the vaginal muscles and possibly the pelvic floor muscles and can result from childbirth, vaginal infections, fear of penetration of the vagina and a consequence of sexual assault or rape.
[174] T 160.
[175] T 161.
Dr Gallagher said vaginal tissue injuries are very good at healing. She said that there could be numerus causes of what she observed or when they were caused. She said that injuries are one possibility but there could be other causes. She could not say when any injuries occurred.[176] Dr Gallagher said that the cluster of anatomical findings that she made may not have been caused by the one event.[177]
[176] T 163; T 171.
[177] T 178.
Although the findings of Dr Gallagher are not inconsistent with the injuries described by the complainant, they do not add any substantial weight to the prosecution case. The uncharged act does not add anything to the prosecution case. If I am not satisfied that the accused committed the alleged sexual acts that form part of the charge, for the same reasons I would not be satisfied that the accused had committed the uncharged act.
Termination of the relationship
The complainant says that the relationship with the accused ended in 2000 or 2001 following an incident at a basketball game.[178] She said that she was upset because of the other team fighting with her and the accused and other team members not stepping in to stop the fight.[179] She said that her mother was also upset and dictated an angry letter for her to send to the accused breaking up with him.[180] She said that her mother was specifically upset that the accused had not stepped in, while she was upset that no-one had stepped in.[181]
[178] T 32; T 46.
[179] T 129.
[180] T 131.
[181] T 134.
Although the complainant was not able to say with accuracy the date when the relationship ended, it must have been some time after April 2001 when the accused had his stroke.
As I have said, the accused gave evidence that his “friendly” non-sexual relationship with the complainant ended in April 2001 when he ceased driving the complainant’s father, save for the fact that the accused resumed playing social basketball with the complainant later in 2001.
It is not possible for me to determine which of these two versions of the termination of the relationship is correct, given that these events occurred about twenty years ago and there is no other evidence supporting either version of events.
Events subsequent to termination
The complainant gave evidence of marking on the linen closet at her house the height of members of her family, but also including the accused.[182] It records the height of the accused as at October 13, 2001.[183] Neither the complainant[184] nor the accused[185] could recall how the measurement came to be taken. In these circumstances, the marking of the linen closet does not provide any assistance in determining the issues in this case.
[182] T 29.
[183] Ex P3.
[184] T 205.
[185] T 327.
The complainant gave evidence that she, with her mother and her two friends KA and NA, “egged” the house of the accused.[186] NA gave evidence confirming that incident.[187] The date of that incident is unclear.
[186] T 33; T 139.
[187] T 254.
The complainant gave evidence of an altercation between her mother and the accused’s mother at a supermarket.[188] The complainant could not recall if she was present but does recall being told that the accused’s mother said that she wanted to kill her.[189] She said that she may have been there.[190] Mrs Elliott denied making the threat or even ever meeting the complainant or the complainant’s mother.[191] I accept that evidence.
[188] T 90.
[189] T 90.
[190] T 91.
[191] T 425.
At some point, although the exact date is not clear, there is evidence that one of the cats owned by the E family was named Spencer.[192] The complainant said that her mother had named the cat Spencer.[193]
[192] Ex D13.
[193] T 229.
The complainant gave evidence that she could not recall if she saw the accused at basketball following the termination of their relationship but recalls meeting him on the occasion of her 17^th birthday. She said that she was in year 12 at the time and attending a different private school. At the end of the day, there were cards on and under her car directing her to go inside the nearby sporting complex and there was a form of treasure hunt involving cards and presents. She said the accused was standing there and that he said that “we’re going to go to your house and I will meet you there for us to catch up”.[194] The complainant could not recall anything else about the conversation or whether he did go back to her house.[195]
[194] T 34.
[195] T 34.
The accused denied he left presents for her at the complex.[196] He said that he did meet the complainant at the complex on one occasion when he received a phone call from Mrs E to attend a birthday party for the complainant there.[197] He spoke to the complainant at this time. That was the last time he has seen her.[198]
[196] T 328.
[197] T 332.
[198] T332.
The complainant gave evidence that she moved out of home when she was about 21 years of age (in 2007) but moved back during 2009 when her father was sick. She remained there for a year or two before moving out. She returned again for a few months in 2017.[199] It was on this last occasion that the complainant said that she saw the accused at Coles in [specified location].[200] She said that she followed him (without his knowledge) near to his house.[201]
[199] T 31.
[200] T 216; ex D12.
[201] T 217-218.
The complainant gave evidence about the circumstances in which she first told anyone about the accused’s alleged conduct and the first time that she made a formal complaint to the police in mid-March 2019.[202] I do not place any weight upon the delay in making the complaint as there are many reasons in cases such as this why a complainant will not make a complaint until many years later. I also do not place any weight upon any inconsistency as to who the complainant first told about the alleged abuse. In her evidence, the complainant said that she first told a former boyfriend of hers, now deceased.[203] This contradicted her statement to the Police that she first told her therapist, Ms Angie Willcocks, in 2014 or 2015.[204] Given the nature of her relationships with both her therapist and her boyfriend and the fact that she said that she told both people about the alleged abuse, I do not consider that her prior statement to the police causes me to doubt her other evidence or her credit more generally.
[202] T 34.
[203] T 191.
[204] T 191-192.
Determination
The prosecution case was based on the testimony of the complainant. The accused could not be found guilty of the charge unless I accepted her evidence beyond reasonable doubt.
Although I accept that the complainant was doing her best to tell the truth, there are a number of matters that lead me to conclude that I am not satisfied beyond reasonable doubt that the accused has committed the offence. With the alleged offence having been committed about 20 years ago, there was only slight independent evidence that supported the testimony of the complainant. There was evidence from a number of witnesses or documentary evidence that was inconsistent with the complainant’s evidence. Given the length of time that has taken place since the alleged events, I cannot reject this evidence and I am therefore left with a reasonable doubt as to whether the alleged incidents occurred as the complainant has described in her evidence or at all.
The following are the matters that have caused me not to be satisfied beyond reasonable doubt that the accused committed the offence.
First, the accused gave evidence and denied committing the offence or engaging in unlawful sexual intercourse. There were no significant inconsistences in his evidence or the evidence of other witnesses, other than the complainant. There was nothing inherently implausible in what he said. There was nothing in his cross-examination that led me to conclude that he was lying.

The prosecution submitted that there were a number of unsatisfactory aspects of the evidence of the accused such that I should find that his evidence was unsatisfactory. The prosecution referred to the record of interview that the accused had with the police and referred to his reaction when told by the police the offences for which he was to be charged. I do not consider that reaction to be evidence of consciousness of guilt. It was consistent with the surprise and shock of being charged with a serious offence. In fact, the accused’s record of interview was consistent with his evidence in Court. The prosecution also was critical of the accused’s evidence as to when he was told by the complainant that she was turning 14 years of age and not 17 years of age. I have some doubts about this explanation and when the accused first became aware that the complainant was 13 years of age and not 16 years of age. However, these doubts do not cause me to reject all of the evidence of the accused on other matters. The accused was recalling how he was informed of a matter 20 years ago. The fact that I do not accept his explanation and memory of that event does not cause me to reject his other evidence as unsatisfactory. The prosecution referred to the inherent implausibility of the accused being paid $800 per week for driving Mr E. I agree that the figure seems high, but in the context of the evidence of the accused and of KA about the driving, it does not cause me to reject the evidence of the accused about driving Mr E. I note also evidence was given that Mrs E always paid for everything.[205] Money did not seem a concern.[206] The prosecution referred to the accused’s evidence as to the absence of contact with the E family after his stroke. I do not consider that the lack of evidence as to how the accused communicated to the E family about his stroke to be remarkable given that the events occurred about 20 years ago. I do not consider that the evidence about the recording of the height of the accused on the linen cupboard to be of any weight given that there was no evidence as to how it came to be placed there.
[205] T 424.
[206] T 364.
Secondly, on the prosecution case the role of the complainant’s mother, Mrs E, was instrumental in facilitating sexual intercourse between the complainant and the accused. Her role was, on the evidence, quite extraordinary. She would arrange to sneak the accused into their house after Mr E had gone to bed so that he could spend the night with her daughter. At the time, the complainant was 13 years old and the accused was 21 years old. She would do this about twice a week during the school term. To be able to do this, she would have had to communicate with the accused, once her husband had gone to bed for the accused to come around and park his car around the corner to ensure that he was not detected and then wait for him at the front door. In the morning, the accused would have to stay in the complainant’s bedroom until the complainant and her father, on her evidence, left together for school and work. This involves a brazenness, irresponsibility and a level of deception by Mrs E. I accept, as the prosecution submitted, that Mrs E was a forceful and domineering personality, but that, to my mind, does not explain the behaviour to which I have just referred.
Thirdly, the evidence that Mrs E was surprised and upset by finding a condom in the bedroom of the complainant and then confronted the complainant about having sex at her age is inconsistent with someone who has facilitated that same sex and then continued to facilitate the sex.
Fourthly, the explanation given by the accused as to why he was at the E house, namely as a driver to drive Mr E to his medical appointments, received support from KA who gave evidence that he was employed as driver for Mr E, almost on a retainer, including driving him for dialysis.
Fifthly, the accused gave evidence that he did not stay overnight at the E house. This was supported by the evidence from his mother, Mrs Joy Elliott, that he did not spend nights away from home when he was living at home at the relevant time. It would be reasonably expected that she would have observed her son being away from home twice a week for over a year. On the evidence of the complainant, the accused continued to be present at the home after she and her father left for school and work respectively. If that were so, Mrs Elliott would also observe the accused to be away from the house in the morning.
Sixthly, Mrs E’s role in organising the accused and the complainant to spend a couple of nights at the Bed and Breakfast in [specified location] was again extraordinary. Having been upset at discovering that the complainant and the accused were having sex (when she found the condom early in their relationship), she then again facilitated that sexual relationship by hiring the Bed and Breakfast and providing condoms. The hiring of the Bed and Breakfast for a 13 or 14 year old girl and a 21 year old boy would be an inherently risky and brazen act in that they may well be seen by outsiders and reported to the police. Again, Mrs E has arranged this by deceiving her husband and telling him that the complainant was staying with two friends.
Seventhly, the complainant gave evidence that there was an occasion when the accused was going to take her to the movies but they were too late. Instead, she said that the accused took her to the winery where he was then working. The accused gave evidence that he was not working at the winery until 2003, a couple of years later.[207] The accused was not seriously challenged on this evidence in cross-examination
[207] T 372.
Eighthly, the complainant gave evidence about a time they were having penis/vagina intercourse when the accused became incoherent, vomited and urinated on himself. She later said that she understood that the accused had a stroke. Clearly, that was a traumatic event. The complainant then gave evidence that she called her mother and they took the accused to the emergency department of the hospital.
That evidence is directly contradicted by the evidence of the accused and his mother, Mrs Elliott. They say that he was at his home when he suffered the stroke and was taken to the hospital on 22 April 2001 (having been taken earlier for similar symptoms on 18 April 2001). The evidence of the accused and his mother in this regard was supported by the admissions records of the Accident and Emergency Department of the Hospital. They show the records on 18 April 2001 and 22 April 2001 as being filled in by Mrs Elliott. They all refer to the same doctor conducting an examination on both occasions, something that Mrs Elliott gave evidence about.
I am satisfied that Mrs Elliott was in attendance at the Accident and Emergency Department of the Hospital on both 18 April 2001 and 22 April 2001. I am also satisfied that that there is at least a reasonable possibility (and I would put it higher on the evidence) that she took the accused on both occasions to the hospital. In these circumstances, there is a reasonable doubt that sexual intercourse with the complainant when the accused collapsed and was taken to the hospital by the complainant and her mother occurred in the way described by the complainant in her evidence. The prosecution submitted that Mrs Elliott may have been mistaken as she could not recall details of the subsequent attendances on medical specialists or the hospital. I do not consider that this matter casts doubt on Mrs Elliott’s evidence about taking the accused to the emergency department of the hospital. That is something of which Mrs Elliott has a distinct memory and is supported by the admissions records.
Ninthly, the complainant gave evidence of the accused making her perform an act of fellatio on him at the accused’s house about a week after the stroke. The complainant remembers the accused’s brother, Adam, walking in on them whilst they were performing or had just finished performing fellatio. The accused denied that this occurred. Adam Zorich gave evidence that there was no occasion when he walked in on the accused with a girl at their house. Adam Zorich properly conceded that it is possible that he could have forgotten the occasion. However, his evidence remained that the event did not happen. It would be expected that he would remember such an event, particularly as the evidence was that the accused and the complainant were in the lounge room, a room reserved for the use of their mother.
Tenthly, the complainant gave evidence that her mother took her to their general practitioner so that she might be prescribed birth control medication, Diane-35, after discovering the condom and therefore coming to the realisation that her daughter was having sex. Again, it would be most unusual for a general practitioner to agree to prescribe birth control medication for a 13 year old and not to note the matter in his notes. The records of the general practitioner refer to the complainant being prescribed Diane -35 for acne. There is no mention of her being ever prescribed medication for birth control. On the evidence of the complainant that would be a false entry. As the counsel for the accused submitted, the records of the general practitioner record that the first prescription for Diane-35 was on 29 January 2001, which was about 9 months after their relationship commenced. The evidence of the complainant was that her mother found the condom in her bedroom and took her to the general practitioner not long after their relationship had commenced.[208]
[208] T 28-29.
Finally, the complainant gave different accounts to the police and to the Court about the position of the accused when she said that they were having sex on the floor of her bedroom. I accept that a memory will fade as to such details over time, but to provide conflicting accounts in some detail provides some doubt as to the reliability of the memory of the complainant in relation to this alleged incident.
All of the above matters lead me to the conclusion that there is a reasonable doubt that the accused committed the alleged sexual acts. Accordingly, there is a reasonable doubt that the accused committed the offence for which he has been charged.
Accordingly, I find the accused not guilty.