R v O, MC [2026] SADC 46

Prosecution: R Counsel: MR T PRESTON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: O, MC Counsel: MR M MEAD - Solicitor: R J COLE AND PARTNERS Hearing Date/s: 27/10/2025 to 30/10/2025 File No/s: DCCRM-24-015565 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v O, MC Criminal Trial by Judge Alone [2026] SADC 46 Reasons for the Verdict of her Honour Judge Kudelka 6 May 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The accused is charged with the offence of sexual abuse of a child. The complainant is his biological daughter. It is alleged that the accused maintained an unlawful sexual relationship with his daughter by engaging in two or more unlawful sexual acts. The offending is alleged to have taken place at the family home. Verdict: Guilty. Criminal Law Consolidation Act 1935 (SA) s 50, referred to. -- 1 of 23 -- -- 2 of 23 -- R v O, MC [2026] SADC 46 Criminal 1 The accused is charged with the offence of Sexual Abuse of a Child contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant is his biological daughter. It is alleged that the offending occurred when she was about six or seven years of age and ended when she was 14. The offending is alleged to have taken place at the family home. 2 The particulars of the offence are that between 1 January 1980 and 12 December 1988 the accused maintained an unlawful sexual relationship with his daughter by engaging in two or more unlawful sexual acts with or towards her, namely: (a) Causing her to masturbate him on multiple occasions; (b) Touching her vagina on multiple occasions; (c) Touching her body with his penis on multiple occasions; and (d) Causing her to be exposed to sexually explicit content. 3 The accused elected for trial by judge alone. Elements of the offence of sexual abuse of a child 4 An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. The offence has four elements: 1. The accused knowingly maintained a relationship with the complainant in the relevant period. 2. The accused engaged in two or more unlawful sexual acts with the complainant in the course of her relationship. 3. The complainant was a child during the relationship. 4. The accused was an adult during the relationship. 5 The prosecution must prove each element of the offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly and even probably guilty. 6 The first element was not in dispute. During the period of the alleged offending the accused and complainant lived together in the family home with other members of the family. -- 3 of 23 -- [2026] SADC 46 2 7 The third and fourth elements were not disputed. During the relevant period, the complainant was a child aged five to 14 years old and the accused was an adult aged 25 to 34 years old. 8 I find the first, third and fourth elements proved beyond reasonable doubt. 9 The issue at trial was proof by the prosecution of the second element of the offence. The defence case was that the accused never committed any unlawful sexual acts with the complainant. Witnesses 10 The prosecution called four witnesses: the complainant, a complaint witness (Mr MAF), the complainant’s brother (Mr VJ), and the investigating officer. At the time of trial, the complainant was 51 years old. The complainant’s mother is deceased. 11 The accused exercised his right to remain silent; he did not give evidence or call witnesses. No adverse inference has been drawn against the accused because of his exercise of that right. The accused has a presumption of innocence in his favour and bears no onus of proof. The prosecution has the burden of proving his guilt of the offence to the standard of beyond reasonable doubt. The allegations 12 There was no dispute that the complainant lived with her parents, her maternal half-brother (Mr VJ) and her sister until she left the family home at the age of 14. Mr VJ is 11 months older, and her sister is four years younger. 13 In 1977, the family moved into a house in the outer southern suburbs of Adelaide.1 The complainant shared a bedroom with her sister, who was deaf. Her half-brother, Mr VJ, had his own bedroom. The complainant alleges the unlawful acts occurred when the family lived in that house. 14 There was no dispute that the complainant’s parents worked when the children were growing up, but there was relevant dispute about the timing of the employment, namely the years, days and hours worked. 15 The complainant gave evidence she started primary school in 1979 when she was five years old. (a) The accused causing the complainant to masturbate him 16 The complainant gave evidence that when she was a child she wanted to be a hairdresser. She used to comb her father’s hair and give him facials. The innocent play acting developed into her father causing her to masturbate him after she gave him a facial. 1 Exhibit P1, Agreed Facts. -- 4 of 23 -- [2026] SADC 46 3 17 The complainant gave evidence those unlawful sexual acts started when she was in year 3. She can pinpoint that timeframe because of a remark made by a boy (Mr MW) at primary school about her father. The boy asked, ‘do you root your dad?’.2 She did not know what ‘root’ meant but wondered if that was what she did with the accused. The complainant’s teacher and the deputy principal heard the boy and took him off to the office. 18 Prior to Mr MW’s remark at primary school, she had masturbated the accused more than 20 times.3 Those acts continued through primary school and into high school. They did not happen as much when she was in high school and they stopped when she left home at age 14. She could not estimate the total number of times that unlawful sexual act occurred. 19 The complainant gave evidence that the accused took certain opportunities to commit that unlawful sexual act. 20 They happened on Saturdays in the accused’s bedroom when no-one else was in the house.4 The complainant had to stay home with her father when her half-brother and sister went out to a mobile library. He closed his bedroom door and then semi-lay down at the end of the bed, propped up on his forearms. He either pulled his pants down or the complainant had to undo them and pull them down past his knees. He was already erect. The accused told her what to do. She used one hand but swapped hands when it got tired. The accused ejaculated ‘all over my hands or everywhere’.5 On one occasion (after Mr MW’s remark at school), the accused ejaculated into a container, saying they would do a science experiment and see what happens. She did not know what it was that they were putting into the container, but wondered what it would do, if it would do anything.6 21 The complainant gave evidence that the unlawful sexual acts also happened in the lounge room during the week after 7.30 pm when her siblings had gone to bed. 22 The complainant explained that the children generally got home from school at 3.30 pm – 4.00 pm. They were home alone until 6.30 pm which is when the accused generally got home from work. Her mother worked shifts and the children cooked. The children had to be in bed by 7.30 pm. 23 When the unlawful sexual acts happened in the lounge room, the accused lay on the ground in the same position he adopted when they occurred on his bed.7 2 T16. 3 T17. 4 T20. 5 T18. 6 T17 – 19. 7 T22. -- 5 of 23 -- [2026] SADC 46 4 24 The complainant gave evidence that the unlawful sexual acts stopped when she was 14. She did not understand that she was masturbating the accused; she thought it was normal.8 (b) Touching the complainant’s vagina on multiple occasions 25 The complainant gave evidence the accused touched her vagina on ‘no more than three times’ over a period of maybe a month.9 Her sister was between four and five years old, which would mean the complainant was between eight and nine years old. It happened after the accused had been causing her to masturbate him. The complainant did not have any pubic hair at the time.10 26 The complainant described one occasion when she was having a bath with her sister. The accused came into the bathroom with a paint pallet. The accused drew a funny face on her sister’s stomach, using her bellybutton as a nose. Her sister was out of the bath. The accused poked a finger in her sister’s bellybutton which caused her to laugh. 27 After her sister left the bathroom, the accused used green paint to paint a face under the complainant’s belly button, painting a beard on her vagina. The complainant was sitting naked on the edge of the bath and the accused was squatting in front of her. 28 On the other occasions, the accused came in with the paint palette and asked the complainant to sit on the edge of the bath. She was naked. When he came to painting the beard, she tried to keep her legs closed but he put his elbows on the inside of her knees to hold them open when he painted. When he finished, the complainant got in the bath and washed it off.11 Her mother and siblings were in the house somewhere. (c)Touching the complainant’s body with his penis on multiple occasions 29 The complainant gave evidence that when she was ten or eleven, she started having showers rather than a bath.12 The family used to get in the shower one after the other so they did not waste water. They had a makeshift shower because there was mould in the normal shower. Her mother controlled the order in which people showered. 30 There were occasions when the complainant and the accused were in the shower together when either one was getting out and the other getting in. The complainant gave evidence the accused used to rub his penis across her back when 8 T31. 9 T27. 10 T27. 11 T27 – 28. 12 T28. -- 6 of 23 -- [2026] SADC 46 5 he was erect. She said this happened ‘a fair few times’.13 She was not aware of her father ejaculating in the shower. (d) The accused exposing the complainant to sexually explicit content. 31 The complainant gave evidence there were pornographic magazines around the house; they were in the lounge room, on the kitchen table and in the toilet. She used to read some of the stories and look at the photographs.14 32 The complainant described an occasion involving the accused and a pornographic magazine. She was young; it happened after Mr MW’s remark at primary school, but she was not sure if this occasion happened when she was in primary school or high school.15 33 The accused was lying on his bed and showed the complainant a picture and an article in a magazine. The subject of the article was a woman sitting across a male in a field about to give the male oral sex. The accused asked the complainant to lie across his legs in the same position. His penis was exposed. The complainant said that she did not want to sit across his lap. He was not very happy with her because she said ‘no’. He told her to just do what she normally did. She then masturbated him until he ejaculated.16 Conversation with mother 34 The complainant gave evidence about a specific occasion when she was about ten years old. The accused was tickling the complainant and her sister when they were all on the lounge room floor. The complainant’s mother came home and called out to the complainant. She asked the complainant ‘is dad doing anything?’ and the complainant said, ‘I just give dad facials’, and she said, ‘alright then’. The prosecutor asked the complainant if what she told her mother was true and she gave evidence that she did not know what masturbating was called.17 35 In my view, this evidence was hearsay and inadmissible. A non-hearsay use of the evidence has not been identified. I have not relied upon this evidence. Complaint evidence 36 The prosecution led evidence about the first time the complainant told somebody about the accused’s behaviour. Evidence of complainant 37 The complainant gave evidence that her complaint followed an occasion at school when she watched a video called ‘Inappropriate Behaviour’ in a social studies class. When the video finished the substitute teacher said that if anything 13 T30. 14 T23. 15 T25. 16 T23 – 25. 17 T23. -- 7 of 23 -- [2026] SADC 46 6 like that was happening to a student they should remain seated, otherwise go to lunch. She sat there looking around watching everyone pack up. She realised that did not happen to anyone so she packed up and went; she realised that what had been happening with her father was not right.18 38 The next morning, she made a complaint to a man she described as her then boyfriend, Mr MAF, who was 29 years old.19 She told him after she finished delivering papers that morning because he lived on the last street of her paper route. There was no-one else around. She did not end up going to school that day. 39 The complainant gave evidence she told Mr MAF that she watched the video at school and said, ‘I pull my dad’s dick’. He asked her if there was anything else and she told him about the showers. She told him that the accused used to come in and rub his dick on her back. She cannot recall if she mentioned the bit about the accused painting on her. 40 Mr MAF told her to go home and tell her mum; he said if there were any problems to go around and see a mate of his that lived around the corner because he will know what to do. Evidence of complaint witness 41 Mr MAF gave evidence that he first met the complainant when she was 13 or 14. They lived in the same suburb. He thinks the complainant babysat about half a dozen times when he was still living with his wife. He denied any romantic relationship with the complainant. 42 Mr MAF gave evidence he separated from his wife in 1986. He remained in the house; she left with the children. He was in a severe depression and drinking alcohol, ‘as much as I could’.20 Every day he drank wine and a dozen beers. 43 The complainant used to ‘pop in after school’ a couple of times a week. 44 He described an afternoon, that he ‘guessed’ to be in 1988, when he was drinking with a friend at home and the complainant ‘popped in’. They had just started drinking. There was another girl there talking with the complainant about sex, particularly about oral sex. Mr MAF asked the complainant how she knew about that and the complainant said, ‘my dad taught me’. He asked her, ‘what do you mean?’. The complainant started to tell them how she always had to have a shower with her father from the age of eight and by the time she reached 12 she was fully matured and that is when her father started making her soap herself up and wash herself properly. Her father would wrap a face washer around his penis and make her rub her face with it. Mr MAF said he started ‘arcing up’, that he did not want to hear anymore and so she did not say any more about it. The conversation lasted about three minutes. He gave evidence that ‘we were very 18 T31. 19 T31 – 32. 20 T65. -- 8 of 23 -- [2026] SADC 46 7 riled up because it was very shocking and we thought what could we do, and I took her to a friend’s place who used to know my wife through the childcare centre where she worked and she had friends or – in the welfare and I took her there’.21 He told the complainant there was no way she was going home. His friend lived only two streets away. He took her there within a couple of hours of the conversation; they were drinking and ‘getting riled up’ during that two hour period. 45 Mr MAF did not see the complainant again other than out and about in the town. She did not continue to go to his house. His drinking habits continued for another 30 years. He was asked how many wines he would drink and he answered ‘depends. I would drink until I dropped’.22 46 At the time he gave his evidence Mr MAF said he had cut his drinking down to three or four beers every day. The complainant leaves home 47 The complainant gave evidence that after she complained to Mr MAF, she went home and told her mother. She then went for a bike ride back to Mr MAF’s place where she stayed for a while before going back home. 48 When the complainant arrived home, her mother accused her of lying. The complainant said she was not lying. Her mother said her father said she was lying. They were yelling and arguing. 49 The accused then came out of the bedroom. He told the complainant’s mother that she was not lying and asked if the complainant wanted him to go and live down at his workplace. The complainant said ‘yes’ but her mother said ‘no, you’re my husband, if anyone goes she can’.23 50 The complainant gave evidence that she left the house and ended up at her best friend’s place. She was 14 years of age and never returned home. Discussion 51 The complainant is a direct eyewitness to the charged offending. She gave evidence that the accused committed unlawful sexual acts upon her from when she was five in 1980 to the age of 14 in 1988. She is not on trial but the prosecution’s proof of the charged offence requires her evidence about those acts to be accepted beyond reasonable doubt. It is for that reason that the credibility and reliability of her evidence must be carefully considered. 52 The defence submitted that the complainant’s evidence lacked credibility and reliability; it was contradicted by the evidence of Mr VJ and Mr MAF, by her own prior out of court statements and included aspects that were implausible. 21 T67. 22 T69. 23 T48. -- 9 of 23 -- [2026] SADC 46 8 53 The question of opportunity was a significant issue raised by the defence in relation to the complainant’s allegation that the accused caused her to masturbate him. The defence submitted the accused’s opportunity to commit those acts on Saturdays was significantly more limited than was stated by the complainant and there was no opportunity for such acts to occur on weeknights in the lounge room until the complainant was at least 10 years old.24 The defence submitted this reflected adversely on the complainant’s credibility and reliability and raised reasonable doubt about the complainant’s evidence. 54 The complainant gave evidence that the accused caused her to masturbate him on Saturdays when no-one else was home. Generally, her mother worked or visited her own parents to help her mother shop.25 Her siblings went to the mobile library service which was a 15 minute bike ride from home; it was very rare for her to go with them.26 In cross-examination, the complainant disagreed with the suggestion that her mother did not work on the weekends and that her father did work on the weekends. She explained that her mother did overtime and was not at home on Saturdays when the unlawful acts occurred.27 On her evidence, the unlawful sexual acts also occurred in the lounge room during the week on evenings her mother worked. 55 The complainant was cross-examined on her prior statements to the police. She signed a statement on 10 August 2023 in which she said ‘Dad doing those sorts of things to me happened most Saturdays and sometimes during the week as well, in the evening, when mum was working. She used to work Monday to Friday and so would be gone before we got home from school and get home after we went to bed’.28 She agreed that in her statement signed on 21 March 2024 there is no mention of her mother working on a Saturday.29 56 I do not consider the passage in the statement signed on 10 August 2023 to be inconsistent with the complainant’s evidence. The complainant explained that the last part of the sentence (‘when mum was working’) relates to Saturdays and the evenings. It is a poorly structured sentence. I consider her interpretation of it to be fair and reasonable. The absence of the topic in her subsequent statement is not of any moment. 57 The defence submitted that Mr VJ’s evidence contradicts the complainant’s evidence and should be preferred on this topic. 58 Mr VJ gave evidence about visiting the mobile bus library on Saturdays during his primary school years. He went there with his sisters, either walking or riding. There were occasions when he went there alone, with one sister, with both 24 T124 - 125. 25 T20. 26 T19. 27 T48. 28 T49. 29 T49 – 51. -- 10 of 23 -- [2026] SADC 46 9 sisters or all of them went with their mother.30 He could not recall anyone being told not to go. 59 Mr VJ gave evidence in chief that it was common for their mother to work on weekends.31 He was also ‘pretty sure’ the accused was employed at a furniture outlet for the whole period they lived at that house. His mother also worked, but there was not always dual income. She worked for a car parts manufacturer (mostly weekday evening shifts from 4pm to 10pm), did fruit/grape-picking or worked at wineries, worked at a bakery and sometimes worked at the same place as the accused. 60 In cross-examination, Mr VJ gave evidence that grape and almond picking was the most common work his mother did on weekends but he could not say they were the only ones.32 He thought it was around the period from when he was 12 ‘and when I was younger as well, I guess, but I do remember it from that time, from that period’.33 He agreed the accused sometimes or regularly worked on Saturdays.34 He agreed the accused obtained employment for his mother at his place of business after she ceased working at the car parts manufacturer. 61 I consider there were occasions during Mr VJ’s evidence when he agreed with propositions because they sounded reasonable and he wanted to be helpful, but he did not in fact know the answer to the detail contained in the propositions. For example, during cross-examination, Mr VJ agreed with the suggestions that his mother started working for the car parts manufacturer in July 1984 and finished working there in August 1992.35 I queried Mr VJ on his knowledge of those dates because it seemed unlikely (given his age at the time) that he would know those dates. He gave evidence he was agreeing because it was suggested to him and that he could not really recall. His responses to other suggestions during cross-examination included ‘that would be the case’ and ‘yep, that sounds about right’.36 He attributed memories more readily to the period when he was older (age 10 or more) but assumptions or guessing played a greater role in his evidence for the period when he was younger.37 62 I do not consider there is any basis to prefer Mr VJ’s evidence over the complainant’s evidence on the topic of their parents’ employment/visits to the mobile library. The difference in their ages (11 months) is minimal and does not of itself give Mr VJ more authority or engender any greater sense of reliability regarding his memory. They were both children during the period 1980 to 1988. It is a difficult task to recall details about topics such as parental employment and 30 T79. 31 T77. 32 T88. 33 T89. 34 T101. 35 T89. 36 T90, 91. 37 T89. -- 11 of 23 -- [2026] SADC 46 10 visits to the mobile library during childhood, particularly when it is now at least four decades later. 63 I do not consider the variations between the complainant’s and Mr VJ’s evidence make either witness ‘unreliable’ or cause me to doubt their credibility. I would be concerned about their credibility/reliability if they had in fact claimed detailed knowledge. For example, it was immediately concerning when Mr VJ agreed during cross-examination with the dates of his mother’s employment. It was reassuring when he stated he did not really recall those dates. 64 Regarding the accused’s opportunity on weeknights, the complainant gave evidence that bedtime was 7.30 pm.38 Mr VJ gave evidence that when he was younger, bedtime was typically 7.30 pm and may have extended out to 8.30 pm in their early teens.39 He agreed with the proposition in cross-examination that it became 8.30 pm when he got to about the age of 10: ‘that sounds about right, yes’.40 He gave evidence that his bedtime was the same as the complainant’s bedtime; their younger sister had an earlier bedtime.41 65 The defence referred to the inconsistency about bedtimes as a ‘minor point’, namely, that if the complainant’s mother commenced work in July 1984 then on Mr VJ’s evidence, the bedtime would have been 8.30 pm not 7.30 pm as stated by the complainant.42 It was not put to the complainant that the bedtime changed to 8.30 pm. I agree with the defence that it is a minor point. I do not consider it has any significance in the overall assessment of the complainant’s evidence or the accused’s opportunity to commit the unlawful sexual acts. 66 Mr VJ gave evidence about returning home from cubs one evening with his mother at around 8.30 pm or 9.00 pm.43 He saw the accused on the floor leaning up against the couch with his legs outstretched and the complainant in his lap. They were told the complainant was giving him a facial. Mr VJ saw moisturiser and tissues. His other sister was in bed. He was sent to bed. 67 Mr VJ also gave general evidence that he sometimes saw the complainant watching TV with the accused when he got up out of bed during the evenings.44 68 Defence counsel cross-examined Mr VJ about a failure to mention those observations during an interview in 1989. Mr VJ agreed that he was interviewed in about 1989 and effectively agreed that he did not mention during the interview that he witnessed anything suspicious between the complainant and accused. He 38 T22, 52 39 T78. 40 T91. 41 T100. 42 T136. Additionally, I do not consider that Mr VJ’s evidence establishes that the complainant’s mother commenced work in July 1984. 43 T79 – 80, 100. I have not placed any weight on Mr VJ’s evidence that his mother seemed visibly uncomfortable with the situation. As it was left, that opinion evidence was inadmissible. 44 T92 – 93. -- 12 of 23 -- [2026] SADC 46 11 explained: ‘I don’t recall being helpful in that interview at all. I don’t recall a one-on-one interview as such. I remember going to somewhere in Noarlunga Centre and being in an interview room with, I know mum was there, I’m not sure if [accused] was there, I was interviewed by a woman and I remember being very unsupportive at the time and I do not recall any specific questions or answers I gave at the time’.45 He further explained: ‘…knowing how, what was happening at the time as far as the, you know, the nature of the allegations and how it was relayed to me and then finding myself in an interview room. So yes, I was told there were, by a younger sibling, that she had made allegations and then I’m in an interview room and I was being rather obstinate to the whole process. There was a sense of denial from me at that time that I harboured against [the complainant] for many years after that, and I regret that’.46 69 To the extent that Mr VJ did not mention during the interview in 1989 that he made those observations, I accept his explanation for why that may have been the case. He was only about 16 at the time of the interview and his evidence about the impact of the difficult family dynamics upon him is plausible. 70 The credibility of Mr VJ’s general observations of the complainant in the lounge room with the accused after bedtime was the subject of further criticism. Mr VJ agreed in cross-examination that not only did he fail to mention those observations in his more recent statements to the police but he in fact stated to the police: ‘I don’t particularly recall [the complainant] staying up later than me’.47 He explained during cross-examination that had he been asked the question directly, he would have recalled events like that happening, because they did happen. The defence submitted that his statement to the police was inconsistent and his explanation for the inconsistency was not credible.48 71 As part of the assessment of Mr VJ’s evidence on this topic, including his explanation, I have considered the context in which he came to give the evidence that he saw the complainant in the lounge room with the accused some evenings after bedtime. The evidence arose during cross-examination on the topic of bedtimes. Mr VJ had explained that he had a room to himself and stayed in his room reading or listening to music or the cricket. The question put to him reflected the terms of his police statement, which called for an answer that had no weight because of an absence of factual foundation – ‘And you have no particular memory of [the complainant] staying up later than you ever did’. Defence counsel then rephrased the question and asked Mr VJ a direct question, namely, whether Mr VJ ever saw the complainant up at times that he would be awake at night after bedtime.49 Mr VJ answered that he did see the complainant in the lounge room after bedtime. 45 T98 – 99. 46 T99. 47 T94. 48 T136. 49 T92. -- 13 of 23 -- [2026] SADC 46 12 72 Mr VJ was correct that he was asked a direct question in court. I do not know what questions he was asked when he gave his statements to the police. It is the evidence, however, that he told the police that he did not particularly recall the complainant staying up later than he did. Although that statement is not, on its own, in satisfactory evidentiary terms, it may be implied that he did not see her staying up later. 73 During cross-examination, it was suggested to Mr VJ that he was biased against the accused. He denied bias, describing it as a strong term and saying that he was ‘not looking for a victory for either party’.50 He agreed that he was estranged from the accused and supportive of the complainant ‘in principle’.51 74 On the topic of bias, Mr VJ was further cross-examined on his evidence about his observations of the accused and showers with the complainant. Mr VJ gave evidence about an occasion when the family returned from the beach which he believed was on a weekend and they were going out to a party afterwards. He recalled the accused saying that he would take the complainant in for her shower, closing the door and showering with the complainant for about 10 minutes.52 Mr VJ was challenged about his evidence that they were in the shower for 10 minutes. He answered: ‘Yeah, and we’re referring to the example I was asked about yesterday, I had no real basis to say that was the time. That’s what it felt like, I guess, at the time. I can’t – I can’t recall. It was, like, a long, long time ago.’53 75 His answer in cross-examination was consistent with my general impression that he was trying to be ‘helpful’ when asked for such detail, but his answers were generally guesses. He believed the first time he had been asked to estimate the time they were in the shower was during examination in chief.54 I do not place any weight upon his estimation of time regarding that occasion. 76 Mr VJ gave evidence that he was aware of allegations to do with showering but unaware of circumstances of other allegations, including any in the lounge room.55 He gave general evidence that showers happened in sequence and there was a division of duties in that the accused would tell his mother to take his younger sister for a shower and that he would take the complainant. Mr VJ showered alone. The shower remained running and they would ‘basically tag in and out’. He was about 13 or 14 at this time. 56 77 Mr VJ disagreed with the suggestion that he was tailoring his evidence to support the complainant.57 I have considered the inconsistency of his prior 50 T99. 51 T95. 52 T80 – 81. 53 T95. 54 T95 – 96. 55 T96, 98. 56 T80 - 81. 57 T99. -- 14 of 23 -- [2026] SADC 46 13 statement to the police that he did not particularly recall the complainant staying up later than him with his evidence that there were occasions when he saw the complainant in the lounge room with the accused after bedtime. I note that the prior statement is that he did not particularly recall the complainant staying up later than him. I do not know if the statement taker was asking him to recall an actual occasion, rather than a general observation. I will nevertheless treat his prior statement as an inconsistent statement. 78 The prior inconsistent statement does not cause me to doubt Mr VJ’s credibility. In giving his statements to the police, he was asked about his childhood memories. I accept that, other than in relation to showering, he did not know the settings for the unlawful sexual acts alleged by the complainant. He did not know that the complainant alleged unlawful sexual acts in the lounge room on weeknights after bedtime. He did not know the significance, or otherwise, of a question about whether the complainant stayed up later than him. It is reasonable that he may not readily recall past observations without being led more directly to the topic. In my view, that is what happened in the courtroom. The specific question on the topic focussed his attempt to retrieve memories and triggered them. 79 I do not consider Mr VJ was a biased witness, in the complainant’s ‘camp’ or tailoring his evidence to support the complainant. In my view, he was an honest witness who was genuinely attempting to be helpful but, on his own admission, agreed to some details about which he was guessing. The defence did not submit his evidence should be wholly rejected but relied on aspects of his evidence to contradict the complainant (for example, in relation to the availability of pornography in the house, the employment of their mother, the employment of the accused and attendances at the mobile library). 80 I consider that during the time frame of 1980 to 1988, it may well be that the complainant went to the mobile bus library more often than she recalls; that the accused did work some Saturdays; that the complainant’s mother was home on some Saturdays/working on some Saturdays/out of the house for other reasons on some Saturdays; or the complainant’s mother was not working evening shifts during the week until the complainant was closer to age nine or 10 (e.g. in 1984). The complainant did not give evidence that the accused caused her to masturbate him every Saturday during that period or every weeknight. She was a young child at the time she alleges the offending started. It is understandable that she may now have a general impression that those unlawful sexual acts occurred more often than they may have in fact occurred; that does not detract from her credibility. 81 I accept Mr VJ’s evidence about his observation of the accused with the complainant on the evening that he returned home with his mother after being out at Cubs. I also accept his general observations of the complainant in the lounge room with the accused after bedtime. The evidence provides some support for the complainant’s evidence that the accused had opportunity to commit the acts. I keep firmly in mind that Mr VJ did not witness any unlawful sexual acts. -- 15 of 23 -- [2026] SADC 46 14 82 The defence submitted that the complainant’s allegations that the accused painted her vagina in the bathroom lacked credibility.58 83 I do not agree with the submission that there is an internal inconsistency in the complainant’s evidence about the ‘first time’ these unlawful sexual acts (touching her vagina) happened. The complainant gave evidence the unlawful acts occurred no more than three times over a period of maybe a month. There was a time when the accused painted the complainant and her sister in the bathroom. She gave evidence that was not the first time the accused painted the complainant in the bathroom.59 In cross-examination she was reminded about her evidence that the accused painted her sister and then asked, ‘And was that the first time that you say he also painted you’. The complainant said it was.60 The difficulty with the question in cross-examination is the use of the word ‘also’. The complainant agreed that it was the first time the accused painted the complainant and her sister. That does not contradict her evidence that it was not the first time he painted her. 84 The defence further submitted that the evidence about these unlawful sexual acts was implausible. The evidence that the accused painted the complainant’s sister then sent her out with green paint over her body would be a very unusual thing to do and would simply draw attention to himself.61 The complainant gave evidence her brother and mother were in the house on these occasions.62 85 The complainant did not give evidence that her sister left the bathroom with green paint over her body. Her evidence was that ‘we were out, out of the bath and he drew a – he painted a funny face on [sister’s] stomach and then – [sister] was laughing and that and, and she got to go, and, and then he was painting, he was painting a face on me, on my stomach’.63 The complainant then got in the bath and washed the paint off.64 86 In cross-examination, the complainant was asked the following: Q. As I understand your evidence, he painted [sister] and then [sister] left the bathroom. A. Yep. Yep. Q. And then you say he painted you. A. Yes. Q. And after he painted you, he left the bathroom. A. Yes, he left the bathroom. 58 T119. 59 T27. 60 T60. 61 T120. 62 T28. 63 T26. 64 T28. -- 16 of 23 -- [2026] SADC 46 15 Q. And you got into the bathtub again. A. Yes. Q. And you washed the paint off. A. Yes. Q. And correct me if I'm wrong but did that happen a few times. A. Yes. Q. And did the same thing happen each time, that - A. No, [sister] was only painted once. Q. And the other times that you were painted, did he leave the bathroom after he'd painted you. A. Yes. Q. And you would get into the bath. A. And wash myself off, yes. Q. So when you washed yourself off, that always occurred in the bathtub. A. Yes. 87 The complainant was not asked if her sister got in the bathtub again to wash the paint off. The question was phrased in terms of counsel’s understanding of the complainant’s evidence that the accused ‘painted [sister] and then [sister] left the bathroom’. I am not prepared to find from that line of questioning that the complainant’s sister left the bathroom covered in paint. 88 The defence made a third criticism of the complainant’s evidence about the painting of her vaginal area. She gave evidence the unlawful sexual acts occurred before any showering started.65 It is agreed that during an interview at the Department for Community Welfare (DCW) on 14 December 1988, the complainant stated that ‘she and her father would quite often have a shower together and he would wash paint off her with his hands’.66 During cross-examination, the complainant gave evidence she could not remember an interview at DCW.67 89 The complainant gave evidence she may have been between eight or nine years old at the time of these unlawful sexual acts.68 She started showering, rather than having a bath, probably when she was aged 10 or 11.69 She gave evidence the 65 T120 referring to T59 - 60. 66 Exhibit P1, Agreed Facts 12d. 67 T61. 68 T27. 69 T29. -- 17 of 23 -- [2026] SADC 46 16 accused used to rub his erect penis across her back in the shower,70 but she did not give evidence about paint or painting in connection with showering. 90 The prior statement to DCW is not necessarily inconsistent with her evidence. The first part of her prior statement aligns with her evidence, namely, that she and her father would quite often have a shower together. The second part does not align with her evidence to the extent that she did not give evidence that the accused washed paint off her with his hands, whether in the shower or the bath. In re-examination she could not recall whether there were any occasions when the accused washed the paint off her.71 The complainant was 14 when she was interviewed at DCW. She was 51 at the time of trial. It is reasonable that she does not now remember the interview at DCW. In light of the passage of time since these allegations, it is also reasonable that she may not remember all the unlawful conduct perpetrated by the accused. The statement to DCW is inconsistent to the extent that the complainant did not mention that type of conduct during her evidence. I accept her explanation that she cannot recall whether there were any occasions when the accused washed paint off her with his hands. 91 The defence submitted that the complainant’s evidence about the circumstances of the alleged occasion when the accused exposed her to pornography were implausible.72 It was submitted that it would be a simply extraordinary coincidence that the one picture the accused points out to the complainant in that magazine (without, on the complainant’s evidence, him saying anything or getting her to read the article) is accompanied by an article the complainant says she has previously read and so knows it was about oral sex. 92 The complainant gave evidence the accused showed her a pornographic magazine then asked her to assume the position in the picture.73 The woman was sitting across the lap of a male in a field about to give him oral sex. She had read the article and seen the image before.74 93 The prosecution led evidence about the availability of pornography in the house. The complainant gave evidence there were pornographic magazines around the house; they were in the lounge room, on the kitchen table and in the toilet. She used to read some of the stories and look at the photographs.75 94 Mr VJ gave evidence there was pornographic material in the house that belonged to the accused and mostly took the form of magazines, but there were also videos. The magazines were ‘under the bed’ and easy to access.76 The magazines were occasionally lying on the bedside table, in living areas of the house 70 T29. 71 T62. 72 T121. 73 T24. 74 T24. 75 T23. 76 T85. -- 18 of 23 -- [2026] SADC 46 17 and stored in the garage. He saw the complainant access the magazines, but it was not regular; they did access the videos, including with school friends.77 95 In cross-examination, Mr VJ agreed with the proposition that the pornography was ‘hidden away’ and that he and the complainant accessed it because they deliberately went to find it.78 The accused did not initially know that he was doing that and when he found out he got in trouble and was told not to go near it. However, there was no effort made by the accused to move its location.79 96 The defence submitted that Mr VJ’s evidence contradicted the complainant’s evidence about the availability of pornography in the house and that his evidence should be preferred.80 97 Mr VJ’s agreement in cross-examination that the pornography was ‘hidden away’ cannot be fully reconciled with his evidence that it was in living areas of the house. In my view, the totality of his evidence was that it was ‘hidden away’ but there were occasions when it was in living areas. In any event, I do not consider there is much to be made of the difference between the complainant’s and Mr VJ’s evidence on the availability of pornography. Mr VJ’s evidence does not cause me to doubt the complainant’s credibility or reliability on this topic. The effect of their evidence was that the accused had pornography in the house, occasionally it was lying around but otherwise the children knew where to find it. 98 The evidence about the general availability of pornography in the house has limited relevance, namely, to explain the complainant’s familiarity with pornography when she alleges the accused showed her a magazine. It is a coincidence that she says she had previously read the article accompanying the photo shown to her by the accused in the magazine, but I do not consider it to be an extraordinary coincidence in light of the general evidence that the children deliberately accessed the accused’s pornography. 99 It is not a criminal offence for the accused to possess adult pornography nor is possession to be considered discreditable conduct. However, leaving pornography casually around the house when young children are present is discreditable conduct. On the totality of the evidence, it may be that the accused did that on occasion. I have not used that evidence to suggest he is more likely to have committed this offence because he has engaged in that discreditable conduct. I have restricted use of the evidence to the permissible use described above. 100 The defence submitted the evidence of Mr MAF proves the complainant made significant prior inconsistent statements at the time of her initial complaint. The evidence of her complaint to Mr MAF is not admitted as evidence of the truth of what was alleged. Before the evidence may be used for the limited purposes set 77 T85 – 86. 78 T86. 79 T87. 80 T121. -- 19 of 23 -- [2026] SADC 46 18 out in s 34M(4)(a), the court must be satisfied there is a link between what was said and the charged conduct. If so satisfied, the evidence may be used to inform the court as to how the allegations first came to light and as evidence of the degree of the complainant’s consistency of conduct. There may be varied reasons why an alleged victim of a sexual offence makes a complaint of an offence at a particular time or to a particular person. It is otherwise for the court to determine the significance (if any) of the evidence in the circumstances of this case. 101 The complainant and Mr MAF gave evidence that the complainant told Mr MAF that her father had engaged in unlawful sexual acts with her. However, there is significant discrepancy between the complainant’s evidence of what she told Mr MAF and Mr MAF’s evidence of what she said. I have no hesitation in rejecting Mr MAF’s evidence. I do not consider him to be a reliable witness. He was forthright about the significant amount of alcohol that he consumed from 1986 and for the next three decades. I do not accept for a moment that he has the capacity to accurately and reliably recall the details of what the complainant told him in 1988. Nor was there anything about the manner of his evidence that gave me any comfort in that regard. He was too sure of himself and a remarkably unimpressive witness. 102 The defence submitted that the complainant’s evidence about how her allegations came to light (how it came about that she complained to Mr MAF) was significantly inconsistent with prior statements made by her to DCW on Monday, 14 December 1988.81 It was submitted this is an example of the complainant being able to give intricate detail in court about what the defence submitted was a fabricated event.82 103 The complainant gave evidence she saw a video at school and complained to Mr MAF the next morning. When she returned home from Mr MAF’s place, her mother accused her of lying and told the complainant she had to leave the house, not the accused. She left the house and did not return. She was 14.83 104 It is an agreed fact that the complainant was interviewed at DCW on Monday, 14 December 1988. It is agreed that during the interview, she stated the following: 12. During that interview, the complainant stated: a. That she had disclosed to a friend/neighbour on Friday, 9 December 1988 that her father had been sexually abusing her from when she was 6/7 years of age until she was 12 years of age. b. On Monday, 12 December 1988, she had a disagreement with her father after school, at the family home, about the mail key. c. When she was 12 years of age, she saw a child abuse documentary at school and realised that her father was abusing her. She told her father to stop 81 T119. 82 T119. 83 See [37], [47]-[50] above. -- 20 of 23 -- [2026] SADC 46 19 touching her 2 years ago in about December/January 86/87. Her father was initially angry however he stopped the abuse and it has not occurred since that time.84 105 If the complainant’s prior statement to DCW that she disclosed to a friend/neighbour on Friday, 9 December 1988 is a reference to her complaint to Mr MAF, then the prior statement refers to an approximate two year time gap (rather than a gap of one day) between seeing the video at school and speaking to Mr MAF. 106 The complainant gave evidence that she did not remember the details of the conversation at DCW but the day she told Mr MAF was the same day as the mail key issue which was the same day she left the house.85 She disagreed with the suggestion that the mail key day was a different day from the day she left, saying ‘No, it’s not right. Not as far as I remember’.86 She knows she left home in 1988.87 She gave evidence she was not 12 when she realised the accused was abusing her.88 107 There is no doubt the prior statements to DCW are inconsistent with the complainant’s evidence about how, when and why the abuse ended. The prior inconsistencies cause me to doubt the reliability of the complainant’s memory about the chronology of those events. They do not cause me to doubt the complainant’s honesty. In my view, she genuinely believes she correctly remembers how the events unfolded. I do not consider she is fabricating her evidence about those events or any other events. 108 It is often expected that people should have perfect or good memories for significant events in their lives, particularly traumatic events. In other words, if it really happened, they should be able remember the details like a movie. In my view, that is a misconception about how memory works. As stated above, the complainant was 51 at the time she gave her evidence. She alleges she was sexually abused by her father from the age of five or six to when she left home at the age of 14. She remembers an argument at home about a mail key. She remembers seeing a video at school. She remembers complaining to Mr MAF. She was interviewed by DCW when she was 14. She was young when all those events allegedly occurred; she was a child and a young teenager. Those events occurred almost four decades ago. She now has no memory of what she said to DCW, which is understandable and believable, even though it is agreed that she was in fact interviewed at DCW when she was 14. 109 I have not relied upon the alleged ‘admission’ by the accused because it was part of the complainant’s account of the circumstances in which she left home. I cannot rely upon the accuracy of her memory about those events. 84 Exhibit P1. 85 T57 – 58. 86 T57. 87 T55. 88 T55. -- 21 of 23 -- [2026] SADC 46 20 110 It does not automatically follow that if there is some doubt about the reliability of the complainant’s memory regarding the circumstances in which the alleged abuse ended and how she came to leave home there must be doubt about the occurrence of the alleged unlawful sexual acts. I have considered that possibility and reject it. 111 The passage of time has meant that the complainant’s mother is now deceased,89 Mr MW and the complainant’s year three teacher have no recollection of the incident described by the complainant and the accused’s place of business had closed (which affects the ability to obtain employment records).90 Although not necessarily connected with the passage of time, evidence was also led that the complainant’s sister did not wish to provide a statement.91 In considering the prosecution case, I have had careful regard to the impact of the passage of time on the accused’s ability to adequately test the allegations or put together a defence. I have compared his situation to that which would exist if the trial had occurred at a time more contemporaneous with the alleged offence, namely, soon after 1988. He may have been able to obtain his work records. The prosecution or defence may have been able to obtain the complainant’s mother’s work records. I cannot speculate about what those records may have shown. The memories of witnesses, or potential witnesses, may be better than they are now but I cannot speculate as to what their memories may be. I have firmly kept in mind the forensic disadvantage to the accused in my consideration of the evidence. 112 I have considered the submissions made by the prosecution and defence. I have carefully assessed all the evidence. 113 I found the complainant to be an honest, credible, straightforward, compelling and generally reliable witness. The difficulties with aspects of her reliability were understandable given her age at the time of the alleged events and the years that have passed since. 114 I am satisfied beyond reasonable doubt that the accused committed the unlawful sexual acts as described in the amended Information. I am satisfied his offending had commenced by the time the complainant was in year three at school. I am satisfied the accused caused the complainant to masturbate him on some occasions when they were home alone on Saturdays and on some weeknights when her mother was not home. I am satisfied there were three occasions when the complainant was about eight or nine years old when he touched the complainant’s vagina in the bathroom by painting on her. I am satisfied he rubbed his penis against the complainant’s back on occasions when he showered with the complainant starting from when she was about 10 years old. I am satisfied there was one occasion when he exposed the complainant to sexually explicit material. I am satisfied beyond reasonable doubt that the complainant left home when she was 14 but there is some doubt that the offending continued until that time. I am 89 Exhibit P1, Agreed facts. 90 T105. 91 T105. -- 22 of 23 -- [2026] SADC 46 21 satisfied beyond reasonable doubt that the offending continued when she was 10 years old and ceased at some stage before she left home at the age of 14. Verdict 115 I find the accused guilty. -- 23 of 23 --