R v MCINTOSH [2026] SADC 43

Prosecution: R Counsel: MS F LINALE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: SCOTT LELAND MCINTOSH Counsel: MR W MICKAN - Solicitor: SHAW LEGAL & ADVISORY Hearing Date/s: 04/08/2025, 05/08/2025, 07/08/2025, 08/08/2025, 11/08/2025 File No/s: DCCRM-23-017582 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 MCINTOSH Criminal Trial by Judge Alone [2026] SADC 43 Reasons for the Verdicts of her Honour Judge Matteo 7 May 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The defendant is charged with sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and, in the alternative, with aggravated indecent assault contrary to s 56(1) of the CLCA. The defendant was tried by judge alone. The defendant was a family friend and regular visitor to the home of the alleged victim, where it is alleged that the unlawful sexual acts constituting the offence of sexual abuse of a child were committed. The unlawful sexual acts alleged comprised of the defendant touching the complainant’s penis on more than one occasion, touching the complainant’s upper thigh on more than one occasion and masturbating the complainant’s penis on one occasion, being the last occasion of an unlawful sexual act and the conduct the subject of the alternative offence of aggravated indecent assault. The complainant made an initial complaint about the final act of touching in response to his mother questioning him about her observation of the defendant’s conduct in the complainant’s bedroom on the morning it is alleged to have occurred. The defendant denied any impropriety when confronted. The child complainant’s evidence was admitted in the form of two audio visual recordings of out-of- court interviews conducted by a police officer pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA) (‘prescribed interviews’) and an audio visual recording of evidence given at a pre-trial special hearing conducted in accordance with s 12AB of the Evidence Act 1929 (SA) (‘PTSH’). The prosecution led evidence from the complainant’s mother and step-father going to the existence of opportunities for the offending to have occurred, and results of DNA analysis undertaken in relation to a pair of pyjama bottoms worn by the complainant on the occasion of the final act of touching. The defendant did not give or call evidence. The matter in issue is whether the unlawful sexual acts are proved beyond reasonable doubt to have occurred. -- 1 of 44 -- Held: the prosecution has not proved beyond doubt that the defendant committed two or more unlawful sexual acts to make out the offence of sexual abuse of a child, nor that he committed the alternative offence of aggravated indecent assault. Verdict: 1. As to count 1, not guilty. 2. As to count 2, not guilty. Criminal Law Consolidation Act 1935 (SA) ss 50(1), 50(4)(b), 50(7), 50(12), 56, 56(1), 56(1)(d), 57(2); Summary Offences Act 1953 (SA) s 74EB(c), pt 17, div 3; Summary Offences Regulations 2016 (SA) reg 23(7)(b); Evidence Act 1929 (SA) ss 12AB, 12AB(13)(a), 12BA, 13BA, 13BA(1), 34M(3), 34M(4)(b), 34M(4)(c), 34P, 34P(2)(a), referred to. R v Dookheea (2017) 262 CLR 402; Douglass v The Queen (2012) 86 ALJR 1086; R v Mann (Question of Law Reserved on Acquittal (No 1 of 2020)) (2020) 135 SASR 457; R v M, DV (2019) 133 SASR 470; R v J, JA (2009) 105 SASR 563; Weragoda v The Queen [2021] SASCA 123; Kane (A Pseudonym) v The King [2024] SASCA 70; Sadler v The King (2023) 144 SASR 63; TM v The King [2024] SASCA 5, considered. -- 2 of 44 -- R v MCINTOSH [2026] SADC 43 The matter in overview 1 The defendant, Scott Leland McIntosh, is charged with the offence of sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). Further, he is charged in the alternative with aggravated indecent assault, contrary to s 56(1) of the CLCA. 2 The defendant elected to be tried by judge alone. 3 The particulars of the offences with which the defendant is charged are as follows:1 Count 1 – Sexual abuse of a child Particulars Scott Leland McIntosh between the 1st day of January 2022 and the 6th day of June 2022, at Ingle Farm, maintained an unlawful sexual relationship with [DC], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards him, namely: a) masturbating [DC]’s penis; b) touching [DC]’s genital area on more than one occasion; c) touching [DC]’s upper thigh on more than one occasion. Count 2 – Aggravated indecent assault Particulars Scott Leland McIntosh on the 6th day of June 2022, at Ingle Farm, indecently assaulted [DC], by touching him on the penis. Aggravation It is further alleged that [DC] was under the age of 14 years at the time of the offence. 4 The complainant is a boy born in February 2009; I shall refer to him as ‘DC’ in these reasons. 5 The defendant was known to DC’s mother and step-father and was, on the prosecution case, a family friend and regular visitor to their home. DC was aged 12 to 13 years at the time of the alleged offences. The defendant was at all times an adult. 6 The sole issue for determination is whether the unlawful sexual acts occurred. 1 Information filed 14 July 2023 (FDN 11). -- 3 of 44 -- [2026] SADC 43 2 7 DC’s evidence was admitted in the form of two audio visual recordings of interviews conducted pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA) (‘SO Act’) (‘prescribed interviews’) and an audio visual recording of evidence given at a pre-trial special hearing conducted in accordance with s 12AB of the Evidence Act 1929 (SA) (‘Evidence Act’) (‘PTSH’). 8 The PTSH was conducted before another judge of this court, who made orders under s 13BA of the Evidence Act regarding the admission of the prescribed interviews.2 9 The prosecution also called evidence from DC’s mother, DC’s step-father, a forensic scientist regarding the results of DNA analysis of a pair of DC’s pyjamas and the investigating police officer. 10 The defendant did not give or call evidence. Principles of law to be applied 11 The defendant is presumed to be innocent of the offences. The defendant bears no onus. The prosecution bears the onus of proving the defendant’s guilt of the offence/s charged beyond reasonable doubt. Proof beyond reasonable doubt is the highest standard of proof known to the law.3 It is not sufficient for the prosecution to prove a suspicion of guilt or that the defendant is possibly or probably guilty. The prosecution must exclude as a reasonable possibility any matter raised by or on behalf of the defendant which might affect proof of the offence/s. 12 I draw no inference against the defendant for exercising his right to remain silent at trial. I do not treat the defendant’s silence as constituting any admission or as a making the prosecution’s evidence stronger or more persuasive. I direct myself that it is at all stages for the prosecution to prove an offence, and each element constituting an offence, beyond reasonable doubt. 13 I am to bring an open and unbiased mind to my consideration of the evidence and the ultimate question of whether any offence is proved by the prosecution beyond reasonable doubt. I am to consider the evidence and arrive at a verdict without sympathy for, or prejudice against, any party involved in the proceedings. 14 In assessing the evidence given by witnesses in the trial, I am to consider both their truthfulness and their reliability in determining whether I can rely upon the evidence given. I may also consider how the evidence of a witness fits with other evidence I find proved. I may accept or reject all or part of a witness’s evidence. 2 Evidence Act 1929 (SA) s 12AB(13)(a). 3 R v Dookheea (2017) 262 CLR 402, [41] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ). -- 4 of 44 -- [2026] SADC 43 3 15 I am required to determine whether the evidence taken as a whole proves the elements of the offence/s beyond reasonable doubt.4 16 I propose to indicate further specific principles of law which I am required to apply in the course of my consideration of the evidence. Directions about special arrangements 17 As to the admission of DC’s evidence in the form of the audio visually recorded prescribed interviews and PTSH, I draw no inference adverse to the defendant, and I do not allow the form of the evidence to influence the weight to be given to it. 18 DC gave evidence at the PTSH by means of closed-circuit television. I must not allow that arrangement to influence the weight that I give to DC’s evidence, nor am I to draw any adverse inference against the defendant from the fact that that arrangement was in place. 19 I direct myself that the evidence is that which I see and hear in the audio visual recordings of the prescribed interviews and PTSH, all of which are contained on a USB, Exhibit P1. For ease of reference to parts of the evidence in these reasons, I will identify the questions and answers by reference to the transcripts, being Exhibits P1A, P1B, P1C, which I have used as aides memoire and chronological guides only. 20 DC’s mother, KY, gave evidence in the courtroom with a one-way screen to obscure her view of the dock. I must not allow that arrangement to influence the weight that I give to her evidence, and I must not draw any adverse inference against the defendant from the fact that that arrangement was in place. Elements of the offences 21 In order to prove that the defendant is guilty of the offence of sexual abuse of a child, the prosecution must prove each of the following elements beyond reasonable doubt: 1. That the defendant knowingly maintained a relationship with DC between 1 January 2022 and 6 June 2022. 2. In the course of the relationship, the defendant engaged in two or more unlawful sexual acts with DC. 3. DC was under the age of 17 during the relationship. 4. The defendant was an adult during the relationship. 4 Douglass v The Queen (2012) 86 ALJR 1086, [12]; TM v The King [2024] SASCA 5, [71]. -- 5 of 44 -- [2026] SADC 43 4 22 The existence of a relationship is a question of fact, and the word ‘relationship’ is to be given its ordinary meaning.5 The duration, frequency, nature and continuity of interactions between two persons all bear on the question of the existence of a relationship.6 23 For the purpose of element 2, an unlawful sexual act is an act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence.7 A sexual offence includes an offence of indecent assault contrary to s 56 of the CLCA.8 24 I am not required to be satisfied of any unlawful sexual act that I would have to be satisfied of if the act were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts.9 25 Each of the particulars alleged to constitute unlawful sexual acts engaged in by the defendant with or towards DC involve allegations of indecent assault. The elements of an offence of indecent assault are, in the context of this case: 1. The defendant touched DC. 2. The defendant intended to touch DC. 3. DC did not consent to the touching. 4. The touching occurred in circumstances of indecency. 26 A person under the age of 17 is unable to consent to an indecent assault.10 27 A touching is indecent if it involves a sexual connotation. I am to determine whether a touching is indecent by reference to prevailing community standards of what is considered to be indecent.11 28 As noted, count 2, the offence of aggravated indecent assault, is charged in the alternative to count 1.12 In order to prove an aggravated offence of indecent assault, the prosecution must prove beyond reasonable doubt, additionally to the elements of indecent assault identified above, that DC was under the age of 14 years at the time of the offence.13 5 R v Mann (Question of Law Reserved on Acquittal (No 1 of 2020)) (2020) 135 SASR 457, [10], [21] (Kourakis CJ). 6 R v Mann (Question of Law Reserved on Acquittal (No 1 of 2020)) (2020) 135 SASR 457, [15] (Kourakis CJ); R v M, DV (2019) 133 SASR 470. 7 Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) s 50(12). 8 CLCA s 50(12) - ‘sexual offence’. 9 CLCA s 50(4)(b). 10 CLCA s 57(2). 11 R v C, M (2014) A Crim R 21. 12 By CLCA s 50(7). 13 CLCA s 56(1)(d). -- 6 of 44 -- [2026] SADC 43 5 29 The prosecution points to the conduct the subject of count 2, the defendant allegedly touching DC on the penis and masturbating his penis during the final interaction between them, as an unlawful sexual act which goes towards proof of count 1. I proceed on the basis that if I am satisfied of the defendant’s guilt of count 1 beyond reasonable doubt, inclusive of satisfaction that the touching the subject of count 2 occurred, I need not go on to separately consider and return a verdict in relation to count 2. If, however, I am not satisfied of the defendant’s guilt of count 1, I would go on to consider whether count 2 is proved beyond reasonable doubt. Evidence of DC 30 It is helpful to note for the purpose of evaluating DC’s evidence that on the prosecution case, the last act of unlawful sexual touching of DC by the defendant occurred on 6 June 2022, and was purportedly witnessed by DC’s mother, who confronted DC about it leading him to make a disclosure. The matter was reported to the police that day, and DC took part in a first prescribed interview the following day. Overview of first prescribed interview 31 DC was interviewed by Brevet Sergeant Jahna Perry (‘BS Perry’) on the evening of 7 June 2022. DC was aged 13 years and 4 months at that time. 32 After asking questions directed at DC’s understanding that he must tell the truth,14 and about topics unrelated to the alleged offences, BS Perry asked DC to tell her what he had come to talk to her about. In answer to this open-ended question, DC proceeded to provide an overview account of the events of the previous day, which included the following:15 About this person called Scott – that he sexually touched me – on a bed, I was on the bed and he was standing next to me and he was touching my willy over clothes and he went under clothes slowly and, I don’t like using the word, but masturbating it, I guess. And I was trying to play a game called Fortnite, yeah, I haven’t played that in a while, um, then my mum was checking, going up and down the hallway just checking up on me because like she always says she doesn’t leave me with all the adults… Then my mum calls me to the kitchen and then she’s like, ‘Did Scott touch you sexually?’ Then I went, ‘What, what?’, didn’t hear properly. Then we went to a private spot in my mum’s bedroom, closed the door and she’s like, ‘Did Scott touch you in any way sexual?’, then I’m like, ‘No’ at first, then I told her the truth. Then my mum opened the door yelled at him saying, ‘You can leave the house’, and stuff. And then yeah he left straight away, then we were calling people and yeah, pretty much then the cops came. (questions omitted) 14 Summary Offences Act 1953 (SA) s 74EB(c); Summary Offences Regulations 2016 (SA) reg 23(7)(b). 15 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 46-64. -- 7 of 44 -- [2026] SADC 43 6 33 In answer to specific questioning, DC said that this had happened the day before. 34 In response to a question about what happened before the sexual touching, DC said:16 So he came over to drop my sister off to camp, then he came back home, like he was supposed to leave but he came back first, like waking me up and tickling me. I didn’t like it, but he woke me up at eight, nine-ish in the morning, then apparently I wanted to show him something, but just came in the room. He wanted to see what I bought in the game Fortnite… Then I went to the bed, laid down facing the TV playing and then um he started to touch me sexually and that’s it. (questions omitted) 35 This incident came to be referred to in the trial as ‘the Fortnite incident’. 36 In the course of the first prescribed interview, DC provided additional details concerning the Fortnite incident, to which I shall return. 37 DC described the set-up of his bedroom where the incident was alleged to have occurred, including by drawing a map, and he provided additional detail concerning the confrontation by, and disclosure to, his mother. I shall also return to this topic. 38 The interview progressed by BS Perry asking DC whether the sexual touching described in the Fortnite incident was the first time that happened or whether it had happened more than once, in response to which DC said, ‘more than once…multiple’.17 39 DC said that, prior to the Fortnite incident (which was on a Monday), it had last happened on Sunday night, being the night before the Fortnite incident. 40 DC went on to say:18 Then we didn’t talk to him for a while, so five weeks ago Monopoly night… 41 BS Perry confirmed that Monopoly night was separate to the Sunday night.19 42 DC went on to allege that the defendant had touched his leg during a family Monopoly night, and that he then followed DC to his bedroom where he touched 16 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 68-80. 17 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 327-329. 18 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) line 337. 19 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 346-347. -- 8 of 44 -- [2026] SADC 43 7 DC’s penis, leg and back. These events were referred to in the trial as ‘Monopoly night’. 43 DC said that there was another occasion before Monopoly night, but did not in that interview elaborate upon that assertion. He estimated that ‘it’ had been going on for a long time, five months, and that the ‘worst’ was definitely the Fortnite incident as it was the first time the defendant went under his clothing and masturbated his penis.20 DC said that prior to the Fortnite incident, the defendant touched his penis over clothing.21 44 In the course of the first prescribed interview, DC described his relationship with the defendant, who he called Scott, who he would see at his mother’s house, where Scott would always come over. DC described the defendant ordering the family take-away food and bringing over chocolate milk. DC said that he would play pool with the defendant who would let him win and tickle him. DC described communicating with the defendant on Snapchat and the defendant having an interest in DC’s football games. 45 That summary is intended by way of an overview of the key aspects of DC’s account in the first prescribed interview, which I shall return to in detail in considering the overall development of his account. Overview of second prescribed interview 46 DC was interviewed by BS Perry again on 13 January 2023, some approximately seven months after the previous interview.22 47 The topics addressed in this interview included the provision of further detail about the Fortnite incident and the disclosure to his mother. 48 The disclosure by DC to his mother on the occasion of the (final) Fortnite incident is relied upon by the prosecution as evidence of DC’s initial complaint pursuant to s 34M of the Evidence Act. This topic is addressed below. Overview of DC’s evidence at a pre-trial special hearing 49 DC was further examined, cross-examined and re-examined at a PTSH conducted pursuant to s 12AB of the Evidence Act on 12 December 2023.23 At that time, DC was aged 14 years and 10 months. He gave sworn evidence. 20 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 385-397. 21 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 484-493. 22 Exhibit P1 (USB containing audio visual record of prescribed interview on 13 January 2023); Exhibit P1B (transcript). 23 Exhibit P1 (USB containing audio visual record of pre-trial special hearing (‘PTSH’) on 12 December 2023); Exhibit P1C (transcript). -- 9 of 44 -- [2026] SADC 43 8 50 DC’s evidence at the PTSH was admitted in the defendant’s trial pursuant to s 13BA(1) of the Evidence Act.24 51 DC’s evidence at the PTSH does not lend itself to an overview summary. I have considered DC’s evidence at the PTSH in conjunction with his evidence in the form of the recorded prescribed interviews holistically in relation to various topics, to which I now turn. DC’s account about background and general matters 52 In June 2022, DC’s parents lived in separate houses. DC lived part-time with his mother, KY, and her partner, SB. DC has a younger sister, a younger half-sister25 and a younger half-brother, who I will refer to by the pseudonym ‘Joseph’. Joseph is the child of KY and SB, and is about six years younger than DC. The defendant 53 In the first prescribed interview, DC described the defendant as someone he would see at his mother’s house every Thursday and every second weekend. DC said that his (biological) father did not like or talk to the defendant. DC said that he had known the defendant for a couple of years. 54 DC said that his mother would pick them up after school on Friday because his mother could not drive without a person (which I take to mean, she held a learner driver’s permit). 55 DC said that the defendant would ‘always come over and give me a drink when I don’t want one’.26 There was no suggestion that this was a reference to an alcoholic drink. DC said that the defendant would come over even though his step-father asked him not to, that he would always try to order them take-away dinner and that he always brought over chocolate milk. 56 In cross-examination at the PTSH, DC agreed that the defendant was regularly around the house, and that he would occasionally help with jobs. DC disagreed that that help extended to picking up clothing and placing it in the laundry. 57 DC said that the defendant would come into his bedroom frequently to watch him play video games and to talk to him, often when Joseph, who shared the bedroom, was there. 24 Ruling 5 August 2025, T27. 25 Being the child of DC’s father and another woman; she lived with DC’s father. 26 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) line 511. -- 10 of 44 -- [2026] SADC 43 9 Snapchat and TikTok 58 In the first prescribed interview, DC said that he added the defendant on Snapchat because the defendant wanted him to. DC described the defendant sending ‘giant paragraphs about stuff like games’, and recently saying that he was glad to help DC a lot more, with a smiley face. DC said the defendant ‘sends like him in a spa just up here yeah then he always takes a picture of his dog’.27 In the second prescribed interview, DC said that the defendant would always initiate the messages. At the PTSH, DC clarified that the spa pictures involved the defendant taking a picture of his face and upper chest area. 59 DC also gave evidence at the PTSH of communicating with the defendant on TikTok. Exhibit P7 is a bundle of Snapchat and TikTok communications between DC and the defendant deriving from the defendant’s mobile phone, seized on 6 June 2022.28 Messages including the following passed between DC and the defendant:29 • On 20 January 2022 at 2:57pm, the defendant sent: ok don’t forget to delete messages; • On 26 March 2022 at 12:51pm, the defendant sent: that was good. hopefully you can add me back on snap too. miss talking to you on that; • On 26 March 2022 at 12:52pm, DC sent: oh I just unfriended you bc dad set this new thing up where you can see notification on Google but that only for calendar; • On 26 March 2022 at 12:55pm, the defendant sent: yeah add me then go into settings and change my display name. all should be good. 60 In further examination at the PTSH, DC said in relation to the 20 January 2022 message that he had previously had a discussion with the defendant about deleting messages. He said that he did not remember much about that discussion, but that the defendant would sometimes tell him not to forget to delete messages ‘so your dad can’t find out we’re talking to each other and we’re adding each other back’.30 In relation to the 26 March 2022 at 12:51pm message, DC said this was when his father did not like the defendant, or DC talking to him. DC said that his father could see when he received notifications on Snapchat, and that this is what the 12:52pm message was referable to. 27 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) line 615. 28 Exhibit P17 (agreed facts), paras 9.1, 12-13. 29 Exhibit P7 (bundle of TikTok and Snapchat communications). 30 Pre-trial special hearing (‘PTSH’), T53. -- 11 of 44 -- [2026] SADC 43 10 Playing pool 61 As noted above, a facet of DC’s interactions with the defendant described by DC in the first prescribed interview involved playing pool. DC said that the defendant always wanted to play pool with him, which they would do in the shed at his mother’s house. DC said that the defendant would make him win every game on purpose, and that when he won, the defendant would start tickling him. DC said – it appears to me in the context of talking about another incident involving chocolate milk (it is unclear) – ‘Actually I kind of remember that whenever we stop playing pool he comes over by standing there and touched me again here’.31 62 In further examination at the PTSH, DC said that the defendant tickled him when playing pool more than once. DC said that the defendant would use his fingers to tickle him on the area of his ribs for three to five seconds, and they would then play another game of pool. Attending DC’s football matches 63 In the first prescribed interview, DC insinuated that the defendant had an interest in watching him play football. DC said of the defendant that ‘sometimes he stalks my footy games’.32 DC went on to explain that he meant by this that the defendant would search the teams he played for on a website, and that he once attended a match of DC’s at Gepps Cross Oval in 2021. DC described the defendant taking a picture of him, and giving a framed copy to him and one to DC’s family. At the PTSH, DC said that he had not asked the defendant to photograph him. DC gave inconsistent evidence on the topic of whether he ever told the defendant where he was playing football.33 The Fortnite incident 64 Although it was the last in time on DC’s account, it is helpful to commence with the Fortnight incident as it is the incident involving an alleged unlawful sexual act about which DC provided the most detail, and as it is said to be supported by other evidence on the prosecution case. 65 As may be seen from the summary of DC’s initial statement in the first prescribed interview which is set out at para [32] above, in essence, DC alleged that on the morning of 6 June 2022, while he was on his bed playing the game Fortnite, the defendant touched his leg and penis over clothing and then masturbated his penis under clothing, the incident coming to an end when DC’s mother called him into the kitchen. 31 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) line 581. 32 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) line 629. 33 PTSH, T44.13-19. -- 12 of 44 -- [2026] SADC 43 11 66 DC went on in the first prescribed interview to provide the following additional details about the incident: • That he was laying flat on his stomach on the top bunkbed while playing Fortnite, with his head turned to face the wall-mounted television on which the game was shown. • He was wearing ‘Rocket League’ pyjamas with nothing on underneath. • The defendant was standing beside the bunkbed, facing the television. • The defendant used his right hand to reach into the bed and under a blanket which was covering DC, and touched DC’s leg and penis over his clothing. • The defendant’s hand then went slowly under DC’s clothing and he commenced masturbating DC’s penis. • The defendant touched DC’s penis three times, and would go onto Facebook on his mobile phone in between doing so. The defendant asked DC about Ken Hinkley, apparently in relation to something he had viewed on the phone. • When DC’s mother would come (I take this to refer to her coming up and down the hallway), the defendant would stop and scratch himself. • DC’s mother ‘found out’ on the third occasion of the defendant touching DC’s penis. DC’s mother saw the defendant ‘slowly put his hand out’. 34 • DC’s mother called him from the kitchen. As they were unable to talk in private, they went into his mother’s bedroom. DC’s mother asked what happened, in response to which DC said no, then yes, about DC touching him sexually. • DC’s mother told the defendant that he needed to get out. The defendant asked why. DC’s mother said something like, ‘I heard that you touched my son’s willy’, in response to which the defendant said ‘No I didn’t’ and ‘I was just reaching for my phone’. • DC’s mother told the defendant to get out, and he left. • Joseph ‘was here at that time so he saw what happened’.35 34 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 167, 305. 35 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) line 177. -- 13 of 44 -- [2026] SADC 43 12 67 In the second prescribed interview, DC added the following details of relevance to the Fortnite incident: • When the defendant woke him up, he said ‘What did you buy with that thing I bought you?’, in reference to an email the defendant had sent him containing a $15 Xbox gift card. The night before, the defendant wanted to know the steps involved in providing DC with the electronic gift card. Exhibit P7 corroborates that at 10:22pm on 5 June 2022, DC sent the defendant messages of instruction on Snapchat. • The defendant’s hand went in through the waistband of DC’s pyjama pants. The defendant was able to get access because a quarter of DC’s stomach was up a little bit. The defendant touched him on the penis twice. • Joseph came into the bedroom in the middle of the touching. • When DC’s mother was coming up and down the hallway, there was a mirror which reflected what was happening (in the bedroom). 68 In further examination at the PTSH, DC identified the Rocket League pyjamas he was wearing in Exhibit P5. He said that the pyjamas felt baggy around his waist. He said that the defendant woke him up by tickling the sides of his ribs with his fingers, and that he was under a blanket at the time. DC identified the position where the defendant was standing relative to his top bunkbed by reference to photographs of the bedroom, Exhibit P3A. 69 Of the prior touching of his penis over clothing, DC said that the defendant rubbed his hand over and around his penis, his clothing and under the blanket. DC said that the masturbation of his penis under clothing involved the up and down force of the defendant’s hand on his penis. He said that the defendant touched him for around six minutes, and that his mother came up and down the hall and checked every two minutes. DC said that he thought that when he was reaching for it, the defendant’s mobile phone was near the bottom of his leg close to his ankle. 70 DC said that the defendant had not previously touched him inside the Rocket League pyjamas. 71 In cross-examination, DC said that the defendant was not touching him when his mother walked past, and that the defendant’s hand was hanging down when she walked past. 72 DC was cross-examined about the defendant being on Facebook on his mobile phone while DC was playing Fortnite from his top bunk. DC agreed that the defendant had talked to him about football previously, and that on this occasion the defendant had asked if DC had heard the news about Ken Hinkley. DC said that he had not, and the defendant pulled his mobile phone out to show him. DC did not recall whether he had touched the phone, but agreed that he could have. DC agreed that it was possible that the phone was on top of or underneath the -- 14 of 44 -- [2026] SADC 43 13 blanket. DC agreed it was possible that he (DC) touched the phone, went back to playing the video game and then touched parts of his own body. DC said that he did not touch his own waist area, but that he changed out of his pyjamas well after the defendant had left. Monopoly night 73 As noted above, in the first prescribed interview, DC alleged that the defendant touched his leg during a family game of Monopoly five weeks earlier, and that later that same night, touched his penis, leg and back in DC’s bedroom. 74 DC described a family game of Monopoly taking place at the dining table involving himself, his mother, his stepfather and the defendant. DC drew a picture of where people were seated during the game.36 75 DC and the defendant were sitting alongside one another, and opposite DC’s mother, KY. DC described the touching as follows:37 …he was touching my leg smoothly, I don’t know, yeah just sexually again. Then mum was thinking something was going wrong so she bent over to the table under the table, then Scott moved his hand like he did all the time, he does it all the time. Then mum goes back up over the table. Then she acted like she was playing with the dog, so she went over then she went down playing with the dog, then she looked on the left side, Scott moved his hand…And she didn’t see him moving his hand so she didn’t really notice. 76 DC went on to demonstrate that the defendant touched him on the upper leg below his waist, and said that the touching was over his clothing. 77 DC said that after the game, the defendant followed him to his bedroom. DC was standing up playing an Xbox game and the defendant was standing next to him and kept getting closer. The defendant touched his leg and back over clothing, and touched his penis under clothing.38 78 Later in the same interview, DC said that the touching of his penis was over clothing.39 79 At the PTSH, DC said that the touching of his leg at the Monopoly table happened at least three times, and that the defendant stopped a lot of times because KY was pretending to check on the dog under the table. The touching was for at 36 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022) p.25; Exhibit P6 (map of dinning table drawn by DC on 7 June 2022). 37 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 417-419. 38 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 366-377. 39 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) line 493. -- 15 of 44 -- [2026] SADC 43 14 least a minute, and involved the defendant ‘smoothly like slowly touching [his] leg, just going around [his] leg’40. 80 On the topic of later events in the bedroom, DC said that he thought that he was again wearing the Rocket League pyjamas and that the defendant was standing to his left. The defendant touched his left leg over his pyjama pants, then placed his hand into the pyjama bottoms and touched his penis under the garment for a couple of minutes. This evidence is inconsistent with the evidence earlier given about the defendant not touching him inside the Rocket League pyjamas prior to the Fortnite incident. 81 In further examination from the prosecutor, DC said that, while touching his penis, the defendant talked about football, and would stop for a while to go through Facebook, then return to touching his penis. DC said that he only replied to the defendant’s comments about football, and that he felt disgusted by the touching and did not know what to do. 82 In cross-examination, it was put to DC that he had not previously disclosed that on the occasion of Monopoly night the defendant was using his phone (going though Facebook) when touching his penis. DC disputed that he had not previously told police this. Further, it was put to DC, and he disagreed, that he had not previously told police that the defendant touched his penis under his pants multiple times on Monopoly night. 83 DC was not re-examined on these topics, and the prosecution did not adduce evidence to rebut the implication that DC’s evidence about the defendant’s use of the phone/Facebook and multiple penis touchings on Monopoly involved recently invented details. Monopoly night and Sunday night became conflated 84 In the course of giving evidence at the PTSH, DC conflated Monopoly night and what he had initially described in his first interview as sexual touching on Sunday, 5 June 2022, the night before the Fortnite incident. 85 In his first interview, DC had said, explicitly and confidently in my assessment, that apart from the Fortnite incident, the defendant had previously touched him the night before (Sunday, 5 June 2022) and on Monopoly night five weeks earlier.41 In the course of that interview, DC described touchings of his penis in his bedroom on the previous Sunday and on Monopoly night as distinct incidents, albeit with common features. 86 In the interview, DC stated that following the Sunday night touching, the defendant sent him a Snapchat message about it being good to hang out with DC; it is unclear to me whether DC was saying that they exchanged pictures that night 40 PTSH, T31. 41 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 332-337. -- 16 of 44 -- [2026] SADC 43 15 or on some other occasion. The only Snapchat messages before me from on or about 5 June 2022 are those referred to above about the Xbox gift card. In any event, at the PTSH, DC was asked about the incident the night before the Fortnite incident referred to in his first prescribed interview, in response to which DC said, ‘that would have been Monopoly night’.42 The prosecutor sought to clarify by asking when Monopoly night took place relative to the Fortnite incident, in response to which DC confirmed that it was the night before.43 DC reinforced this in cross-examination.44 That is where the evidence was left. Other occasions of touching 87 In the first prescribed interview, DC said that sexual touching had occurred (apart from the Fortnite incident) ‘more than once’, ‘multiple’.45 He said that the defendant would do something nearly every Sunday.46 88 At the PTSH, DC was asked how many times the defendant had touched his penis (willy). DC said, ‘Too many, can’t count how many times’.47 He went on to say that the defendant touched his penis a lot of times, and mentioned an incident three or so months before the Fortnite incident. He was unable to say where that incident occurred, and did not give any further detail in relation to it. DC offered: …I can only remember that one time I was doing my homework called ‘Education Perfect’ and he was sitting next to me in a lounge room. And I think he was touching my leg over. That was before, like, a couple months before the Fortnite night. 89 DC went onto describe that it was nearly midnight and everyone else in the house was asleep. The defendant was seated beside him on the couch as he did his homework, and answering questions to assist DC with the homework. DC said that the defendant grabbed onto his upper leg around the thigh and kind of rubbed a bit. 90 In cross-examination, DC acknowledged that he had not previously disclosed this Education Perfect incident. The prosecution did not adduce evidence to rebut the implication that this was a recent invention. 91 At the PTSH, DC was further examined on the topic of the defendant tickling him in the course of games of pool. He was asked about a particular incident of the defendant touching him after playing pool. DC said that the defendant touched him around the top front of his thigh over his clothing while standing beside him as he played an electronic game in his bedroom. 42 PTSH, T37. 43 PTSH, T38. 44 PTSH, T68. 45 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) lines 327, 329. 46 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) line 521. 47 PTSH, T38. -- 17 of 44 -- [2026] SADC 43 16 92 In cross-examination at the PTSH, DC said that he told his mother that the defendant had touched him two to three times. He said that he lied to his mother, but he told BS Perry that it was many times. 93 DC agreed that he probably told the police it was two or three times, and this was a lie. I mention that I am unaware of DC making a statement to police that it was two to three times. At all events, DC admitted the lie, but asserted that he told BS Perry about the many times, which he did. 94 In re-examination, DC said that he lied to his mother because he was scared that she was going to get mad at him and be unhappy that he had not told her. DC said that he lied to the police because his mother was with him and he was scared of her reaction. DC’s evidence of complaining to his mother 95 As I have already summarised, DC stated in the first prescribed interview that his mother called him into the kitchen on the occasion of the Fortnite incident and asked if the defendant touched him sexually, to which he said ‘What?’ A conversation in KY’s bedroom followed in which KY asked DC the question again, she asked something like, ‘Are you sure because I need to know the truth.’48 DC said that it took a couple of seconds, then he said, ‘Yeah, he did touch me.’49 96 DC was cross-examined about his disclosure to his mother at the PTSH. In cross-examination, DC’s account changed slightly in that he agreed that his mother had come into the bedroom and said she wanted to talk to him. He said that his mother took him to the kitchen while the defendant was still in his bedroom. DC and KY moved into the master bedroom because the defendant had moved to the kitchen. 97 DC agreed that while his mother was speaking to him, she was quite emotional and quite stressed and that the situation was putting a bit of pressure on him. DC said that when he said no, his mother got less stressed, but that she got stressed again when he told the truth. 98 Although it was not clear to me whether this occurred in the kitchen or the master bedroom, DC agreed that his mother told him that she had seen the defendant’s hand under the quilt. At first, DC said nothing happened. He said that he could have said that the defendant was getting his phone from the bed, but did not remember saying that. 99 DC agreed that his mother did not really accept his denial, that his mother kept questioning him and that she only stopped questioning him when he said that something had happened. DC had the impression that his mother thought 48 Exhibit P1 (USB containing audio visual record of prescribed interview on 13 January 2023); Exhibit P1B (transcript) line 50. 49 Exhibit P1 (USB containing audio visual record of prescribed interview on 13 January 2023); Exhibit P1B (transcript) line 54. -- 18 of 44 -- [2026] SADC 43 17 something had happened to him because of her repeated questioning and because she told him what she thought she had observed. 100 DC agreed that he and his mother spoke to police together and that, prior to the arrival of the police, his mother told him:50 What she saw. She said she looked – she said she kept on walking up and down the hallway, like she did it two times, three times, forgot how many times. Then the last time she went up she checked through the mirror which would reflect into my room and which through she would just see the time that Scott was touched – going underneath my quilt touching me. 101 DC said that his mother had shared her version of events with him a number of times, and that he has told her of his account to police. Evidence of KY 102 KY, the mother of DC, gave evidence about DC’s family structure and living arrangements. It suffices to summarise her evidence as being that in 2022, she, her partner, SB, and her children resided together in a house at Ingle Farm. KY recalled that in June 2022, DC was living with them at Ingle Farm, having for the previous one to two years been living part-time with his father, and at Ingle Farm every second weekend from after school Friday until after school Monday. 103 KY knew the defendant through SB, and described him as being predominantly friends with SB. KY said that she herself got along with the defendant, but that she never really liked him. 104 KY said that in 2022, the defendant would come over to the house every weekend or every second weekend, and sometimes on weekday evenings. KY said that the defendant and SB would catch up on the weekends, when they would sit outside talking. SB would not always be home when the defendant came over. The defendant would stay for a couple of hours on a weekday evening and sometimes ate with the family. He would buy them take-away food, including KFC a couple of times. KY said that she would occasionally find the defendant, who had let himself in via a side gate, sitting on the back veranda. When she questioned why he was there, the defendant would tell her that SB had said that he could come over. Other times, the defendant said that DC had invited him over. 105 KY was aware that DC had a mobile phone, however she did not always monitor his communications and was unaware of him communicating with the defendant. 106 KY said that sometimes when the defendant came over, he would go into DC’s bedroom and watch DC playing Xbox. She said that DC and the defendant 50 PTSH, T66. -- 19 of 44 -- [2026] SADC 43 18 would talk about gaming and football, and that their relationship appeared to her to be like a friendship. 107 KY gave evidence that SB, DC and the defendant sometimes played pool together in an outdoor games room, while she would be under the veranda by the spa. 108 KY said that the defendant had given her and DC each a framed photograph of DC playing football from an occasion on which she was unaware that the defendant was at the match. KY identified the photographs in the photographs of DC’s bedroom.51 Monopoly Night 109 KY gave evidence about a family Monopoly game which was played at the dining table of the Ingle Farm house a couple of weeks before 6 June 2022. She said that she, SB, DC and the defendant played. She was unable to recall where people were seated during the game. 110 KY said that every time it was the defendant’s turn, his hand would go under the table. She did not recall who the defendant was seated next to during the game, which hand he used or what motion it made. KY did not do anything at the time, she just said that she no longer wanted to play, then DC also said that he no longer wanted to play. She said that she was concerned that the defendant was touching DC, and that is why she did not want to play anymore. 111 In cross-examination, KY said that she did not really remember the Monopoly occasion. She did not know if the defendant was simply resting his hand in his lap. KY made no mention of a dog, or of looking under the table. KY said that after the Monopoly night, they did not see the defendant for a number of weeks. 112 KY gave no evidence of the defendant staying on at the house after the conclusion of the Monopoly game. 6 June 2022 (Fortnite incident) 113 KY gave evidence that as at 6 June 2022, DC was not going to school. She said that as she was on her learner’s driving permit, she needed to be accompanied by a fully licenced driver while driving, and the defendant accompanied her that morning to drive her daughter to school for school camp. Joseph came with them on the drive, leaving DC at home alone, sleeping. 114 KY said that they returned from the school camp drop-off trip at about 9:00am, and that DC was still sleeping. The defendant went out the back to smoke. 51 T65; Exhibit P3 (photographs of Ingle Farm house), photo 17. -- 20 of 44 -- [2026] SADC 43 19 115 KY went into DC’s bedroom to wake him, then set about the task of folding and putting away towels. This involved her retrieving the towels from the loungeroom, and taking them to a linen cupboard at the end of the hallway, off of which DC’s bedroom was situated. 116 KY said that she next saw the defendant in DC’s bedroom. She said that she saw DC playing Xbox on his top bunkbed, laying on his side and facing the television screen with a blanket over him. The defendant was standing beside the bed. In short, KY alleged that while travelling along the hallway, she saw the defendant’s hand leave DC’s blanket. On the prosecution case, KY witnessed the last act of the defendant touching DC’s penis in the course of the Fortnite incident. 117 KY’s evidence of making this observation was given over two separate days. Apart from the essence of KY’s account, which was of seeing the defendant’s hand leave DC’s blanket, the attendant circumstances and details of that observation were changing, confused and confusing. 118 KY was a very nervous witness. I make allowance for her nerves and for what I am prepared to infer involved stress and emotional toll on her part. I did not have cause to doubt her inherent honesty, however, she was at times so apparently stressed and uncertain that I doubted the accuracy and reliability of her recollection. KY’s evidence on the topic of the Monopoly game provides an example of where she asserted making an observation of conduct – the defendant’s hand going under the table – which carried a clear insinuation of wrongdoing, but which altogether lacked any detail to enable me to make an evaluation about what the conduct itself involved and whether it was entirely innocent. 119 Returning to KY’s evidence about her observation on the morning of 6 June 2022, KY said that she could not remember whether DC was lying face up or face down on his bed. The prosecutor took KY to photographs of the bedroom taken on 6 June 2022 and showing the layout of the bunkbeds (Exhibit P3) with a view to identifying which end of the bed DC’s head was at at the time. KY gave the following evidence:52 Q. You can use the photographs if it helps you. A. Well these photographs, that room got changed before the photos were taken, so I can't. Q. How has the room changed. A. The beds were on the - were down the wall, they were along the window. Q. Are you able to help us as to when that change took place. A. That day. 52 T78. -- 21 of 44 -- [2026] SADC 43 20 120 I pause to note that the exhibit photographs show the bunkbeds in a position which is perpendicular to, not alongside, the window. KY exhibited no uncertainty in asserting that the position of the bunkbeds had changed by the time photographs were taken, and in asserting that on the morning of 6 June 2022 when she made her observation they were in a different position. At the request of the prosecutor, KY went on to mark the position of the bunkbeds at the relevant time, effectively placing them at right angles to where they are shown in the photographs and in a different corner of the room.53 121 KY’s evidence about the positioning of the beds was not given in passing. She gave evidence about the change in position shown in the exhibit photographs taking place that day, in the afternoon after DC asked her to move them because he did not want to be in that room after what happened. She said that she moved the beds herself, and that toys were even moved into a different position. 122 The differential positioning is important because, on the position of the bunkbeds as drawn by KY (and according with her memory of her observation of the defendant’s hand leaving DC’s blanket), that position afforded her a front-on view from the hallway, whereas the position of the bunkbeds in the photographs afforded a different, angled view from the hallway. 123 KY described making two trips down the hallway to put towels away into the linen cupboard. She said that on her first trip to the linen cupboard, she saw into DC’s bedroom on her right, that the defendant was facing towards the door and television and that she did not see any interaction between the defendant and DC at that time. She said that she was at the linen cupboard for two to five minutes, and that on the walk back she saw the defendant’s hand leave the blanket.54 KY said that she was unsure if it was the defendant’s left or right hand, that she did not remember the motion and that it was just quick, from around the area of DC’s waistline. KY marked the position from which she made the observation (with a triangle on Exhibit P11A) near a mirror in the hallway. Within a short time frame, KY gave evidence that she made two trips up the hallway, and that she observed the hand out of the blanket on the second trip.55 She marked on Exhibit P11A with a circle where she was positioned the second time she looked into the room at the doorway. Then she gave evidence that on the second trip, she was standing where she had marked the triangle. I had great difficulty following, and I have had great difficulty reconciling, KY’s evidence about where she was when she made the observation, and when in the course of her trip(s) down the hallway she made it. 124 On her second day of evidence, while still in examination-in-chief, KY gave this evidence:56 53 T78-79; Exhibit P11A (map of house marked by KY). 54 T85. 55 T94-95. 56 T98-101. -- 22 of 44 -- [2026] SADC 43 21 Q. Now, I'm going to ask you some questions about the position of the bunk beds in the bedroom on 6 June 2022. Now, two days ago, on Tuesday, you told us that the bunk bed was in front of the window and opposite the door. A. Yes, correct. Q. On that morning of 6 June 2022. A. Yes. Q. Is that an accurate recollection. A. I can't remember them - it's not an accurate, no. Q. Where do you think the bunk beds were on 6 June 2022 in the morning. A. On the left-hand side. Q. Can you indicate on P11 where you mean on the left-hand side. A. On the left-hand side of the room where I've put 'Bunks'. Q. Where you've written the word 'Bunk'. A. Yep. Q. And did the position of the beds move on 6 June 2022, to your recollection. HER HONOUR: Mr Mickan, I take it you're not objecting to these questions? MR MICKAN: No, your Honour. HER HONOUR: Very well. A. I can't a hundred per cent remember. XN Q. Did the bunk beds move at some point after 6 June 2022 in the morning. A. Yeah. Q. And you can't remember whether it was on that day or another day. A. I can't remember if it was on another day or that day. Q. And you've given evidence about walking up and down the hallway delivering towels - A. Yes. Q. - from the lounge to the linen closet on two occasions. A. Yes, correct. -- 23 of 44 -- [2026] SADC 43 22 Q. On those occasions when you walked past [DC]'s bedroom, where was the bed positioned. A. They must have been on the left-hand side, but I can't hundred per cent remember a lot about that day. Q. You have told us that the first time you walked past [DC]'s room, from the lounge to the linen cupboard, you looked into [DC]'s room and you saw Mr McIntosh standing by the bunk bed. A. Yes, correct. Q. You put the linen away, is that right. A. Yes. Q. And then you walked back past the bedroom. A. Yes. Q. When you walked back past the bedroom, you told us on Tuesday that you saw nothing unusual, is that right. A. Yes. Q. You went back to the lounge, picked up some more towels and then went back to the linen closet. A. Yes. Q. On the occasion where you walked past [DC]'s bedroom again on the way to the linen closet the second time, what is it you saw at that point. OBJECTION: MR MICKAN OBJECTS MR MICKAN: We've been over this a number of times. If my friend wants to clarify something, that can be done, but that shouldn't occur by way of going through everything. HER HONOUR: I'm going to give some latitude on this topic, Mr Mickan. MR MICKAN: If your Honour pleases. XN Q. So the question was: on the way from the lounge to the linen closet the second time and you looked in [DC]’s bedroom, what is it that you saw. A. On my way back the second time is when I seen Scott's hand lift off his blanket. Q. There should be some tissues there in front of you. Are you ready to proceed. Now, when you saw that, can you tell us where you were standing. A. I can't remember. All I remember is that I was in the hallway. Q. Do any of the markings that you previously made assist you with that or not, from P11. -- 24 of 44 -- [2026] SADC 43 23 A. Maybe the triangle one there. Q. And what did you do next. A. I remember going to the linen cupboard and putting the towels in and then going to [DC]'s room. Q. Did you say anything when you went back to the room, to anyone. A. I said to [DC] to get out of bed. Q. And where was Scott at the time. A. Still in his room. Q. Did you see where Scott went after that. A. No, I can't remember. 125 As may be seen, the prosecutor asked the witness whether her recollection about the position of the bunkbeds, as already given in evidence, was accurate. The witness responded in the same sentence that it was not an accurate recollection and that she could not remember them. The witness went on to say, contrary to her detailed evidence two days earlier about the movement of the beds, that she could not remember when they were moved. The answer, ‘They must have been on the left-hand side, but I can’t remember a lot about that day’, in relation to where the beds were at the time KY made observations into the bedroom underscored a complete lack of certainty about what KY recalled seeing in DC’s bedroom. 126 In this portion of KY’s evidence, her description of the witnessed action shifted from the defendant’s hand leaving the blanket from underneath (T85) to lifting off the blanket (T100), the latter description implying that the defendant’s hand was on top of, and not underneath, DC’s blanket. The discrepancy was not resolved. 127 Further, as may be seen in this passage of evidence in which the prosecutor sought to clarify the witness’s evidence given thus far about her observations into her son’s bedroom on 6 June 2022, the witness’s ultimate answer regarding where she was positioned when making the critical observation was she could not recall, other than being in the hallway, maybe at the position of the triangle marking, which she had previously made to indicate where she was when she looked into the room on the first trip up the hallway when, on one version of the evidence, she saw nothing untoward. 128 Far from clarifying the witness’s evidence about her observations of the morning of 6 June 2022, the passage set out above from KY’s second day of evidence left me confused and uncertain as to what those observations were, and unpersuaded that KY was describing a genuine and reliably observed and recalled event. I accept that KY looked into DC’s bedroom and saw something that moved her to ask DC to get up and to ask him about sexual touching. However, KY’s -- 25 of 44 -- [2026] SADC 43 24 evidence about what she saw was so confused, inconsistent and uncertain that I am unable to draw any safe conclusion as to what it is that she did see. 129 KY’s account degenerated further in cross-examination in which she twice confirmed that she could not remember where she was when she made the observation, how far away from the defendant and DC she was, or which way the defendant was facing at the time. KY gave internally contradictory evidence that she was walking when she made the observation and could not remember if she stood still and looked into the room, and that her observation was for a period of maybe three minutes. 130 The cross-examination of KY confirmed the impression I had formed by listening to her evidence-in-chief that she did not have a clear picture in her mind’s eye of what she had witnessed. She was hesitant and unconvincing. 131 In contrast, KY was very clear and certain about her recollection of the events which took place after DC emerged from his bedroom. KY said that after DC emerged from his bedroom, she told him that she wanted to talk to him privately. She said that she went to the kitchen and grabbed a folder to create the impression that she had to talk to DC about something. She told DC to come to her bedroom, and shut the door. Joseph also came into the bedroom. KY said that she told DC that had seen the defendant’s hand leave the blanket and said, ‘Did I seen what I seen?’ DC said, ‘No Mum’, and told her that the defendant was just getting his phone. KY again explained to DC what she had seen, and DC said that Scott touched his willy. KY told DC that was all she needed to know so she was able to kick the defendant out. She told her sons to stay in the bedroom. 132 KY said that the defendant was in the kitchen. She yelled and swore at him, including, ‘As if you did that to my child’ and ‘How dare you touch’. She said that he had touched DC. The defendant denied this, saying ‘I wouldn’t do that’. He made a second denial when leaving the house. Subsequent conversations with DC 133 KY was unable to recall whether she had any further conversations with DC on 6 June 2022. 134 In cross-examination, KY said that she has not spoken to DC about what she thought she saw since, and that DC had not spoken to her since about what had happened to him. 135 KY gave evidence about a conversation with DC in which she asked DC about playing a game of Monopoly and told him that she could see the defendant’s hands going under the table. She asked DC if she was seeing things, in response to which DC said, ‘No, he kept rubbing my leg’. KY gave no clear evidence about the timing of this conversation. -- 26 of 44 -- [2026] SADC 43 25 136 KY said that she had not spoken to DC on the morning he gave at evidence in December 2023 (the PTSH). Evidence of SB 137 SB has been in a relationship with KY for about ten years. They commenced living in the Ingle Farm house in 2022. On SB’s recollection, DC was at the house the majority of the time. He said that the arrangement for DC to stay with his father was week-on and week-off, but that it was variable according to DC’s mood. 138 SB has known the defendant since 2002. They were friends and saw one another regularly. Through SB, the defendant met KY and her children, including DC. 139 SB said that the defendant would come to the Ingle Farm house on average four nights per week to hang out. The defendant worked as an electrician during the day. SB believed that he too worked during the day in 2022, but could not clearly recall what work he was doing. 140 SB said that it started off that the defendant would come over to see him, but then he gradually started to show up to see and hang out with DC. SB said that he saw the defendant at the house on occasions when he was not expecting him. 141 SB’s recollection was that the defendant would usually come around after meal times, and that he would sometimes stay until 2 or 3am. SB confirmed that the defendant and DC would play pool together in the games room a couple of times per week, and that there were not always other adults in there, although he would check on them to see how they were going. 142 SB described the relationship between DC and the defendant as one of a young kid learning to play pool, and said that DC had fun. SB said that he was aware that the defendant and DC communicated by an application on their phones, and said there were times when the defendant turned up unannounced saying that DC had invited him around. 143 SB confirmed that the defendant attended one of DC’s football matches. He said the defendant invited himself many times, but did not elaborate as to what he meant by this. 144 SB gave evidence about a game of Monopoly at the dining table in which the defendant participated. 145 In cross-examination, SB said that the defendant and DC had shared interests in sport and video games, and that the defendant would go into DC’s room to watch him play video games. He said that DC did not seem bothered by this. 146 SB said that he was unaware of the defendant bringing the family take away food, but that he would sometimes buy groceries for the house. -- 27 of 44 -- [2026] SADC 43 26 147 On the topic of the bunkbed set-up in DC’s bedroom, SB said that they were in a position which corresponds with the photographs of the house taken on 6 June 2022. SB produced a photograph of Joseph’s old bed in a position opposite the door in November 2021 (Exhibit P14) before the bunkbeds were introduced. SB was not sure whether the position of the beds changed after 6 June 2022. Evidence related to the investigation Brevet Sergeant Perry 148 BS Perry attended at the Ingle Farm premises at about 5pm on 6 June 2022. General duties officers had attended earlier at 2:28pm in response to a tasking received at 1:54pm. 149 The photographs depicting the house including the layout of DC’s bedroom and position of the bunkbeds, Exhibit P3, were taken by a crime scene examiner at 5:22pm. 150 In the course of BS Perry’s attendance, various items were seized including bedding items and the Rocket League pyjamas depicted in Exhibit P10,57 which were submitted to Forensic Science South Australia (‘FSSA’) for examination. 151 The defendant was arrested at his home address at Pooraka at 6:16pm that evening at which time BS Perry seized a Samsung mobile phone from him, on which the Snapchat and TikTok communications with DC shown in Exhibit P7 were identified. Exhibit P7 represents a selection of messages. Also on the phone were two images of DC, which are reproduced in Exhibit P16. 152 Following the defendant’s arrest, a reference DNA buccal swab sample was taken from him.58 153 BS Perry explained why no interview of Joseph was undertaken.59 I direct myself that I must not speculate about what, if anything, Joseph may have said about the events of the morning of the Fortnite incident had he been interviewed or called to give evidence. 154 In cross-examination, BS Perry stated that she had not herself physically seized the Rocket League pyjamas. She confirmed that the pyjama bottoms are shown in situ in Exhibit P3, photographs 22 and 23, which depicts them to be inside a bathtub, atop another fabric item which BS Perry was unable to identify. It seems to me to be possible, indeed likely, that the item is the matching pyjama top. 57 Exhibit P10 (copy of photograph of Rocket League pyjamas marked by Dr Taylor). 58 Exhibit P17 (agreed facts), para 14. 59 T164. -- 28 of 44 -- [2026] SADC 43 27 Forensic examination of pyjamas – DNA 155 The Rocket League pyjamas were examined at FSSA. Dr Duncan Taylor, chief scientist in forensic statistics, gave evidence about the results of that examination. 156 Dr Taylor’s qualifications to undertake forensic DNA analysis, and his experience and expertise in that field were not challenged. Dr Taylor is eminently qualified to express the opinions he did in relation to the results of the examination and testing of the Rocket League pyjama pants. It is not necessary to set out Dr Taylor’s qualifications and experience, nor the details of methodologies employed for undertaking the DNA analysis in this case. 157 The pyjama top and pants were received at FSSA together inside a brown paper bag, and the correct way out. Dr Taylor said that this means of packaging and transport would have resulted in ample opportunity for transfer to occur between the items touching. 158 As part of the examination of the pyjama bottoms, tape lifts were taken from different areas of the inside of the garment, being the inner front, inner rear and inner crotch. Two areas on the inner rear of the pyjama pants described as brown possibly faecal staining gave a positive reaction to a presumptive test for blood. Dr Taylor marked on a photograph of the pyjamas the broad areas which were sampled by tape lifts.60 159 The tape lifts were taken by dabbing something like a piece of sticky tape on the surface of the garment working back and forth until the entire area was sampled. The brown stained areas were included in the tape lift sampling. The results of analysis of those tape lifts for the presence of DNA and comparison to the profiles obtained from the reference samples from DC and the defendant were as follows:61 1. The tape lift from the inner front gave a mixed DNA profile indicating three contributors include DC. Comparison of the profile to the reference profile for the defendant resulted in a likelihood ratio of greater than 100 billion when the possibilities of contribution and non-contribution by the defendant were compared. This result means that the probability of obtaining the profile from the tape lift was greater than 100 billion times higher if the sources are DC, the defendant and some other person, compared to if the sources are DC and two other people (other than the defendant). The ‘shorthand’ way of expressing that calculation of statistical weighing is that, when compared to the defendant’s profile, a likelihood ratio of greater than 100 billion was obtained in favour of his inclusion to the mixed profile. 60 Exhibit P10 (photograph of Rocket League pyjamas marked by Dr Taylor). 61 Exhibit P9 (table of DNA results); T42-43. -- 29 of 44 -- [2026] SADC 43 28 2. The tape lift from the inner rear gave a mixed DNA profile originating from three to four contributors. Assuming DC to be a contributor to the profile, in shorthand expression, a likelihood ratio of 9.7 billion was obtained in favour of the defendant’s inclusion to the mixed profile. 3. The tape lift from the inner crotch gave a mixed profile originating from four contributors. Assuming DC to be a contributor to the profile, in shorthand expression, a likelihood ratio of greater than 100 billion was obtained in favour of the defendant’s inclusion to the mixed profile. 160 Dr Taylor gave evidence about the deposition and transfer of DNA, and about ‘contact’ DNA. 161 Dr Taylor explained that contact or trace DNA is DNA which is not associated with a body fluid such as blood, semen or saliva. The deposition of DNA can occur from coming into contact with, or being in the vicinity of, an object. The amount of DNA deposited from an act of contact is quite variable, and dependent upon numerous factors including the length of the contact, the surface of the recipient item, the cleanliness of the person making contact (in terms of when they last washed the bodily surface), the susceptibility of the person to shedding DNA and the condition in which an object is kept between the act of contact and sampling for the presence of DNA. Although DNA cannot be dated, DNA can remain on an item almost indefinitely if the item is stored in cool, dry conditions. 162 Dr Taylor explained how primary (or direct) and secondary depositions can occur, the latter being referred to as indirect transfer. 163 In cross-examination, Dr Taylor agreed that when the pyjama pants were received, the inner front and rear areas would have been touching, creating an opportunity for transfer of DNA from one surface to the other. It is not possible to discern from which part of a tape lifted area DNA was collected, or whether it was just present in one section. 164 Asked to assume that the defendant was holding a mobile phone, Dr Taylor said that he would expect the defendant to deposit DNA onto the item, in addition to existing DNA from previous use by him. Dr Taylor said that a mobile phone is a good source of DNA as it tends to be held around the mouth and face, due to saliva, sweat and physical contact with the face. Saliva and sweat tend to consistently provide a good source of DNA. 165 Dr Taylor gave the following evidence based upon a scenario of the defendant’s mobile phone being on DC’s bed:62 62 T49-50. -- 30 of 44 -- [2026] SADC 43 29 Q. If Mr McIntosh was likely to place that mobile phone say on top of a blanket on a bed, that mobile phone could deposit DNA onto the blanket, correct. A. It could do, yes. Q. That would depend on a few variables. A. Yes. Q. Including how long the phone was on the blanket. A. That's right. Q. And the nature of the blanket, so if it was rough or not. A. That's right. Q. And if someone was to touch where that phone was on the blanket, they could theoretically, or the possibility that they would pick up Mr McIntosh's DNA. A. Yes. Q. Equally, if Mr McIntosh was to provide his phone to another person, who then held the phone, it's possible for Mr McIntosh's DNA to go from the phone to the hand of the other person. A. Yes. Q. Notwithstanding that Mr McIntosh and that person haven't directly touched. A. Yes, that's right. Q. And if that person who had Mr McIntosh's DNA on their hand was to touch their own clothing for example, they could then deposit the DNA onto their clothing. A. Yes, that could happen. Q. Despite Mr McIntosh not actually touching the clothing himself. A. That's right. Initial complaint 166 The prosecution relies upon DC’s disclosure to KY on the morning of the Fortnite incident as evidence of the making of an initial complaint of an alleged sexual offence, which is admissible in accordance with s 34M(3) of the Evidence Act. 167 As I understood the prosecution’s case and closing submissions, the initial complaint implicitly relates to the alleged touching of DC’s penis on the morning of the Fortnite incident and is evidence of the making of a complaint about that unlawful sexual act, which is represented by count 2 in the alternative. Although DC was cross-examined about conversations which he had with KY, and KY was cross-examined about a disclosure DC made about Monopoly night, I understand -- 31 of 44 -- [2026] SADC 43 30 the prosecution initial complaint evidence to be limited to the touching on the occasion of the Fortnite incident. To the extent that DC and KY gave evidence about other conversations and disclosures, I make it clear that I have not used that evidence as evidence of initial complaint supporting DC’s credit, or to prove the truth of what was asserted by either person. 168 DC’s initial complaint about the touching on the occasion of the Fortnite incident is admitted to inform me as to how DC’s allegation first came to light and as evidence of the degree of consistency of conduct of DC: s 34M(4)(a). Consistency of conduct includes consistency in the making of a complaint when it would be expected to be made and consistency between the wording of the complaint and the conduct alleged.63 Evidence of the degree of consistency of conduct of DC may assist me in evaluating the degree of consistency between DC’s allegation and his conduct in making a complaint to his mother when he did and in the terms he did. The evidence of DC’s complaint to KY is not admitted as evidence of the truth of what he alleged, or confirmed, by his statement, and I must not use the evidence in that way: s 34M(4)(b). 169 I direct myself that there may be varied reasons why DC made a complaint to KY at the time and in the circumstances he did: s 34M(4)(c). I am to determine the significance (if any) of the evidence of DC’s complaint to KY in the circumstances in which it arose and in the circumstances of this case. 170 DC’s initial complaint came about as a result of direct questioning from KY as to whether the defendant had touched him sexually. KY was emotional and stressed at the time of questioning DC. Based upon DC’s evidence at the PTSH, his disclosure came about after KY told him that she had seen the defendant’s hand under the quilt. 171 Based upon DC’s evidence, his initial complaint consisted of telling KY ‘the truth’ and agreeing that the defendant did touch him. According to KY, DC said that the defendant touched his penis (willy). I find myself unable to make a precise finding about what DC told KY on this occasion, other than it involved having been touched by the defendant, and that the connotation involved intimate touching at least insinuating touching of his penis. 172 I do not think that DC’s initial denial of touching before agreeing with KY, or stating, that the defendant had touched him much diminishes the weight of the evidence of his initial complaint. It is a response which is explicable and understandable on the part of an adolescent boy in those circumstances. 173 DC’s eventual complaint in the face of persistent questioning by KY is capable of demonstrating a degree of consistency of conduct on the part of DC, but at the same time, KY’s questioning, assertion of what she had seen and emotional presentation, are capable of having operated upon DC to make a disclosure by 63 R v J, JA (2009) 105 SASR 563, [583] (Duggan J, Nyland and White JJ agreeing); Weragoda v The Queen [2021] SASCA 123, [59] (Doyle JA, David JA and Stanley AJA). -- 32 of 44 -- [2026] SADC 43 31 agreement which lacked the sort of spontaneity which can be compelling in buttressing credibility. 174 DC’s complaint to KY has informed me as to how his allegation first came to light. The complaint is broadly consistent with his allegation of the touching and masturbation of his penis within the Fortnite incident. 175 Due to the circumstances in which the complaint was elicited, I consider that it demonstrates some degree of consistency of conduct in the sense that DC made a reluctant acknowledgment to his mother’s questioning in circumstances where I would have expected him to do so, particularly in the face of her effective accusation. Submissions of the parties Prosecution 176 The prosecution submitted that the evidence reveals frequent and ample opportunities for the defendant to have offended against DC in situations around the Ingle Farm house. 177 The prosecution invites me to accept DC’s evidence as being sufficiently credible and reliable to support the charge/s. The prosecution emphasises the details of DC’s account about which he was certain and consistent, such as the defendant entering his bedroom on the morning of the Fortnite incident, that he was lying down during it, that there was leg touching on Monopoly night and that the defendant would let him win pool to create an opportunity to tickle him. Ms Linale characterised the change in account about the timing of Monopoly night as minor. She characterised the elaboration at the PTSH about the Monopoly night penis touching under clothing as minor. 178 The prosecution summarised DC’s account as involving six distinct incidents of unlawful sexual touching, being: (1) Education Perfect; (2) Monopoly night at the dinning table; (3) Monopoly night in the bedroom; (4) a thigh touch in DC’s bedroom after a game of pool; (5) Sunday night; (6) the Fortnite incident. 179 The prosecution did not strongly seek to persuade me that KY’s evidence was sufficiently reliable to support DC’s evidence about the masturbation or touching of his penis in the course of the Fortnite incident. 180 The prosecution submits that the evidence of DC’s initial complaint to KY supports DC’s credit as it demonstrates consistency of conduct and account on his part. 181 The prosecution submits that the DNA results support that the defendant touched DC’s penis on an occasion when DC was wearing the Rocket League pyjamas, which the prosecution does not limit to the Fortnite incident. -- 33 of 44 -- [2026] SADC 43 32 182 The prosecution points to the evidence of the Snapchat/TikTok communications, the defendant’s attendance at at least one of DC’s football matches, the sending of spa photographs, possession of photographs of DC on his mobile phone and presentation of the framed football pictures as supplying evidence of the existence of a relationship between the defendant and DC, and of the defendant’s maintenance of that relationship. 183 The prosecution further submits that the defendant’s conduct in buying DC a $15 Xbox gift card, supplying chocolate milk for the household, deliberately losing at pool, helping DC with homework, talking to DC about football and gifting the framed football photographs is evidence of ‘grooming’,64 which the prosecutor defined as trying to build trust with DC and spend time alone with him to enable him to sexually offend against him. Defence 184 It was submitted on behalf of the defendant that the inconsistencies and uncertainties in DC’s account cause it to lack credibility and reliability and, connected to that, the manner in which KY elicited DC’s initial disclosure raises or supports the hypothesis that DC’s account has been contaminated to cause an incorrect reconstruction or reimagining of his interactions with the defendant. 185 As an example, the shift in DC’s account about acts of touching of the penis occurring under clothing between the first prescribed interview and the PTSH is characterised as very significant, and Mr Mickan emphasises that the shift is unexplained. He points also to the material details proffered by DC for the first time at the PTSH about the Education Perfect incident, and about the defendant being on his phone in between touching him on the penis on Monopoly night. 186 In relation to the Fortnite incident and Monopoly night before it, whenever that may have been, Mr Mickan submits that it is inherently improbable that the defendant would take the risk of being discovered by sexually touching DC in such an open way in the effective presence of his family members. 187 The defence submits that the evidence of the facets of the relationship between the defendant and DC are neutral and cannot be elevated to represent grooming conduct. 188 The defence says in relation to the Fortnite incident, that the possibility of the defendant grabbing his mobile phone from DC’s bed being explicable of KY’s observation and DC’s allegation of penis touching is a reasonable one which has not been excluded by the prosecution. KY’s recollection of observing the defendant’s hand leaving DC’s blanket is, the defence submits, so vague and lacking in important detail as to be unreliable. 64 T 197. -- 34 of 44 -- [2026] SADC 43 33 189 With respect to the DNA evidence, the defence submits that the prosecution has not excluded that the defendant’s DNA came to be deposited on the inner surfaces of the pyjama pants other than by direct contact in the course of touching DC’s penis, particularly in view of the evidence of DC handling the defendant’s mobile phone on that morning. Consideration 190 As will be obvious, I did not see DC give live evidence. There was no point at which it was open to me to ask DC any questions to clarify or better understand any aspects of his account. In undertaking an evaluation of DC’s evidence, I am limited to an assessment of the recordings of his evidence played in the trial. 191 Overall, I gained the impression that DC was an honest witness who seemed to be making his best effort at answering the questions asked of him. 192 In the first prescribed interview, DC presents as candid and open in answering the interviewer’s questions. He was naturally mildly reticent about describing certain intimate details, but in my assessment answered all of the questions asked of him directly. It is clear to me that DC’s focus in the first prescribed interview was the events of the previous morning (the Fortnite incident) and the day before that (the Sunday night). This is perfectly understandable as those events were close in time to the interview, and as his mother’s intervention had led to the calling of the police and the interview. It is also clear to me that in the course of that interview, DC was influenced by information which he had been told by KY. For example, in his initial overview of the events of the previous day, in reference to KY going up and down the hallway, he added, ‘just checking up on me because like she always says she doesn’t leave me with all the adults…’ That seemed to me to be a slightly gratuitous elaboration which is explicitly referable to what his mother says. Another more significant example of DC being influenced by what he had been told by KY arose in the context of his description of Monopoly night, about which DC said in relation to the touching of his leg at the dining table that, ‘Mum was thinking something was going wrong so she bent over to the table under the table’. DC went on to describe his mother acting like she was playing with the dog and looking to the side but not seeing the defendant move his hand. That aspect of DC’s account had to have come from KY as it purported to relate what she thought, what she did and what she did or did not see. 193 In cross-examination at the PTSH, it emerged that in the course of questioning him to elicit his disclosure, KY had told DC what she thought she had observed on the morning of the Fortnite incident. DC confirmed that prior to the arrival of the police, KY had told him what she had seen involving her walk up and down the hallway, looking in the hallway mirror and the defendant ‘going underneath my quilt touching me.’ 194 This is not a case in which there has been any suggestion of KY instructing or suggesting to DC what he should say about the actions of the defendant. However, what has been suggested by the defence is that the circumstances of -- 35 of 44 -- [2026] SADC 43 34 DC’s initial complaint being elicited by KY, and DC’s express acknowledgement of conversations with KY prior to his initial prescribed interview, raise the possibility of a contamination and inadvertent influencing of his account. DC did not strike me as a child who would be easily susceptible to influence from his mother, however, as the examples which I have pointed out from his first prescribed interview illustrate, he was prepared to advance as part of his account things that his mother had told him. It is obvious that the events of the preceding 36 or so hours had been dramatic and emotionally charged. It is feasible that DC would incorporate information from his mother into his account of events without having any intention to deceive or be inaccurate. 195 In conjunction with there existing a reasonable possibility that DC’s account in the first prescribed interview was informed or influenced by information shared by KY, it is notable that DC spoke about the defendant in a way that in my assessment intended to convey or imply to the interviewer that the defendant was a deviant person. For example, by including in his description of who the defendant was that his father did not like or talk to him, by stating that the defendant would always come over and give him a drink when he did not want one and that the defendant would sometimes ‘stalk’ his football matches. The use of the term ‘stalk’, which carries a strong negative connotation implying an unnatural or sinister interest, I think was intended to convey that the defendant’s interest in DC was a sexual one. This alleged stalking, which was clarified to amount to the defendant searching a match website and attending one match, was linked on DC’s narrative to the framed pictures, again I think to convey an impression that the defendant held an unnatural interest in DC. It is important to note that the prosecution does not point to any of the defendant’s conduct in connection with DC’s football as evidencing a sexual interest in DC. The football evidence does not reveal any such interest, and I have not viewed it in that way. The football evidence is a facet of the relationship between the defendant and DC and is capable of supplying proof of the defendant maintaining that relationship. The point I make is that DC’s negative statements about DC in the first prescribed interview – which I accept might be equally attributable to DC being the victim of sexual touching by the defendant – overlay onto DC’s statements about what his mother thought, saw or did at various points to give the impression that DC was conveying a mix of information which was influenced by events and discussions occurring from the time of KY’s intervention on the morning of 6 June 2022. 196 With those observations being made, I find DC’s essential account in the first prescribed interview of being touched on the penis by the defendant while playing Fortnite on his top bunk the previous morning to be persuasive. It is straightforward and unembellished. DC seems to trust BS Perry to tell her the specific details of the touching which undoubtedly would have been embarrassing for him to do. Based on that account alone, I consider that the defendant probably did touch and masturbate DC’s penis on the occasion of the Fortnite incident. DC’s initial complaint supports his credit insofar as he alleges that the defendant did so and the DNA evidence is consistent with this having occurred. The question which I must grapple with is whether DC’s account of this touching is sufficiently reliable -- 36 of 44 -- [2026] SADC 43 35 to act upon and whether on the whole of the evidence I can be satisfied beyond reasonable doubt that it occurred as alleged. 197 DC’s presentation in the second prescribed interview was still believable, but he struck me as being less engaged in answering the interviewer’s questions than he had been in the first. 198 DC’s evidence in the recorded PTSH seemed to be given openly and frankly. There is nothing about DC’s presentation or demeanour which causes me any doubt about his veracity. He strikes me as an honest young man. By the time of the PTSH, DC was approaching 15 years of age and giving evidence about events which occurred over a year and a half earlier. That is not an easy task, particularly where answering questions in court requires clarity and specificity and where the subject matter is inherently shameful for an adolescent boy. I observe also, without making any criticism, that the process of DC giving evidence at the PTSH was necessarily disjointed and lacking in narrative flow because of the nature of the exercise, which was limited by the topics on which permission to further examine and cross-examine him had been granted. My impression is that DC was endeavouring to answer the questions he was asked at the PTSH honestly and acknowledging where he had no or unclear memory about matters. As I have said, I consider that DC was an honest witness as his openness and demeanour impressed me as such. However, demeanour alone cannot inform me about the accuracy and reliability of DC’s recollection. These are matters about which I must arrive at conclusions based upon a critical assessment of the objective features and markers of the plausibility and consistency of his account. 199 On my assessment, DC’s account lacks a clear explanation of how the defendant managed to access his penis while he was lying flat on his stomach playing Xbox on the occasion of the Fortnite incident. In the first prescribed interview, DC acknowledged that it would have been hard for the defendant to touch him on the penis while in this position. When this topic was further explored in the second prescribed interview, DC said that ‘like a quarter of [his] stomach was a little bit up, that’s how he could of got access to [him]’.65 This is an awkward manoeuvre to envisage, particularly with the defendant being right side on to the bed, facing the screen on the wall and using his right hand. I do not conclude that it is an impossible or necessarily inherently unlikely manoeuvre; I simply observe that the difficulty which I have in envisioning the action while DC was in the position he describes has not been resolved or addressed on the evidence in a way as to assuage any doubt about the execution of the manoeuvre in the circumstances of the Fortnite incident. 200 The manner in which DC conflated, confused or inconsistently recalled Monopoly night, in particular as to whether it was on the Sunday night being the night before the Fortnite incident or weeks earlier without having seen the 65 Exhibit P1 (USB containing audio visual record of prescribed interview on 13 January 2023); Exhibit P1B (transcript) line 200. -- 37 of 44 -- [2026] SADC 43 36 defendant in the interim, causes me to have a doubt about the accuracy, and therefore the reliability, of DC’s recollection. As I have set out, in the first prescribed interview, DC described the Monopoly and Sunday night incidents as distinct. He linked the Monopoly touching to events witnessed by his mother around the dining table involving a ruse involving the dog, and he separately linked the Sunday night touching to a follow-up Snapchat message from the defendant saying that it was good to hang out with him. There is no message fitting that description in evidence. Had Monopoly night occurred the night before the morning of the Fortnite incident, I would have expected DC to describe this in the first interview when events would have been freshest in his mind. As the Monopoly and Sunday night incidents were characterised by distinct surrounding features, I am unable to reconcile any confusion on DC’s part by recourse to the frequency and recurrence of a particular type of conduct blurring in his memory. At the PTSH, DC expressed no uncertainty about Monopoly night being on the night before the Fortnite incident, and his certainty in equating the two events, in contrast to his earlier version that they were distinct and weeks apart, causes me to be concerned about DC’s preparedness to make an emphatic assertion in contrast to something that he had said at an earlier time. There is no explanation in the evidence for the inconsistency which might mitigate its impact upon DC’s reliability in recalling this event, or these events, as the case may be. It is a striking inconsistency because of the apparent memorability of the Monopoly night on DC’s account (and KY’s). 201 I gained the impression that Monopoly night was memorable to DC because of the presence of his family while he was touched under the table and because of his mother’s apparent response, which he recalled was to bend to look under the table more than once and to pretend to play with the dog while doing so. I have made the point that DC’s account of his mother’s conduct was almost certainly infected by something told to him by her because he described what she thought and what she did or did not see. There was a distinct opportunity for DC’s memory of Monopoly night to have become infected before his first interview because a conversation did take place between DC and KY before the arrival of police, and KY acknowledged that there was a conversation, albeit untimed, in which she told DC that she could see the defendant’s hand going under the table on Monopoly night. 202 The evidence of KY and SB confirms that there was a night on which Monopoly was played at the dining table in which the defendant and DC participated and were seated next to each other. For reasons which I have set out in connection with her recalled observations of the morning of the Fortnite incident, I concluded that KY was an uncertain and unimpressive witness. Ultimately, in relation to Monopoly night, she said that the defendant’s hand would go under the table during the game. She gave no evidence about the manner in which it did so, and conceded that it may have just been resting in his lap. Notably, KY gave no evidence about or to the effect of bending down under the table, playing with a dog or pretending to play with a dog. In short, KY’s evidence does not substantially support DC’s account of the defendant touching his leg under the -- 38 of 44 -- [2026] SADC 43 37 table on Monopoly night, and seems to be in contrast to DC’s description of her engaging in a ruse involving the dog to bend to look under the table. At all events, on KY’s evidence, her observation caused her and DC to no longer want to play the game. No witness gave evidence about what happened after the Monopoly game, what time it was, or whether or why the defendant would have stayed at the house. DC’s account simply continued that later that night, the defendant indecently assaulted him in his bedroom by touching his penis while he stood to play an Xbox game. On my assessment of the evidence, there is no support for DC’s account of the defendant being in the house after the Monopoly game. If the Monopoly game came to an end as KY recalled and described, that is, accompanied by a feeling of concern or unease on her part, it is highly implausible in my assessment that the defendant would have been permitted to be in DC’s bedroom unaccompanied and unwatched. I have an impression from the evidence that KY is a protective mother, and I find myself unable to accept that the defendant would have had easy, relatively private access to DC after KY earlier witnessing his hand under the table. 203 Further in relation to the Monopoly night incident, I have some unease about DC’s internally inconsistent evidence at the PTSH about the Fortnite incident being the first time the defendant had touched him inside the Rocket League pyjamas. As I have set out, he went on to say that he was touched on the penis inside those pyjamas on Monopoly night which, on any view of the evidence, preceded the Fortnite incident. This inconsistency was not resolved. It causes me to doubt in a small way the reliability of DC’s recall of a defining feature of being touched on the penis or in the genital area on the occasion of Monopoly night. 204 It also concerns me in relation to DC’s account of Monopoly night that he stated for the first time at the PTSH that while he was playing the Xbox game, the defendant touched his penis under his pyjamas multiple times and was intermittently using Facebook on his mobile phone. When challenged, DC disputed without hesitation that he had not previously told the police these details. There is no evidence before me that he had done so. I am left with a strong impression, which was not sought to be displaced by the prosecution, that DC was adding these details on the run at the PTSH. The evidence was blunt and unconsidered and causes me to doubt the reliability of DC’s recollection of the true events of Monopoly night, whenever it took place. 205 In a similar vein, DC’s evidence about the Education Perfect incident, apparently asserted for the first time at the PTSH, had the feel of an account being proffered on the run. Although SB gave evidence that the defendant would sometimes be at the house until the early hours of the morning, there is no suggestion that he would be engaging with DC at those times. I have very little evidence by reference to which I can evaluate DC’s claim that the defendant was alone with him at nearly midnight helping him with homework; it seems a more permissive type of engagement with DC on the defendant’s part than is generally described by KY and SB. It is also of note that DC offered this incident in response to questioning about other occasions of touching on his penis, which he had said -- 39 of 44 -- [2026] SADC 43 38 were too many to count. Education Perfect, as I understood DC’s evidence, involved touching on his upper leg over clothing. 206 DC’s evidence about the defendant tickling him around the ribs and of doing so in connection with purposefully letting DC win games of pool was clear. The evidence which the prosecution points to in support of conduct amounting to an indecent assault connected to playing pool is, in my assessment, too vague to support such an allegation. On my assessment of DC’s account in the first interview, while describing playing pool, DC described an occasion of getting himself a drink of chocolate milk before playing an electronic game in his bedroom, and ‘I kind of remember that whenever we stop playing pool he comes over by standing there and touched me again here.’66 The interviewer linked ‘that one’67 to a specific occasion which DC said occurred four weeks earlier. The generality of DC’s answer which was in terms of ‘whenever’ and a specific touching (‘touched me here again’) are difficult to reconcile and understand. Further examination at the PTSH did not involve any elaboration or clarification, and was limited to tickling in the pool room. 207 It is important to point out that the prosecution does not rely upon the evidence of the defendant tickling DC in connection with pool as evidence of discreditable conduct in the form of conduct evincing a sexual interest in DC on the part of the defendant. The evidence was led to inform the existence and maintenance of a relationship between the defendant and DC. 208 As to the prosecution’s submission that the defendant’s conduct in the form of deliberately losing games of pool, purchasing DC a $15 Xbox gift card, supplying chocolate milk for the household, helping DC with homework, talking to DC about football and presenting the framed football photographs were evidence of ‘grooming’ DC to facilitate sexual offending, I am not persuaded that the evidence on the whole supports this inference. The evidence of the defendant’s conduct taking these forms is relevant to the existence and maintenance of a relationship between the defendant and DC, and that is the only permissible way in which I would apply it. On the evidence before me, the defendant was a regular fixture at the Ingle Farm house and he was welcome to engage with DC’s family, for example, by visiting unannounced, sitting outside and talking with SB, sharing (and occasionally providing take-away) meals, occasionally bringing groceries (including chocolate milk), accompanying KY as a licensed driver, once playing Monopoly and accompanying KY to drive her daughter to school camp. On SB’s evidence, which I accept, the defendant and DC openly spoke about their shared interests of gaming and football, and the defendant was teaching DC to play pool. None of the conduct pointed to by the prosecution as amounting to ‘grooming’ was undertaken secretly, surreptitiously or clearly by way of reward for DC. There is no suggestion that the defendant was acting as to secure DC’s acquiescence or 66 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) line 581. 67 Exhibit P1 (USB containing audio visual record of prescribed interview on 7 June 2022); Exhibit P1A (transcript) line 582. -- 40 of 44 -- [2026] SADC 43 39 silence. The conduct pointed to is, in my assessment of the dynamics within the household, unremarkable, particularly when considering how longstanding SB’s friendship with the defendant was. 209 The messages in which the defendant instructed DC to delete communications and to change his display settings are in a different category. The prosecution does not point to these messages as evincing a consciousness of guilt on the part of the defendant, but says that they reveal a facet of the relationship between the defendant and DC. 210 In Kane (A Pseudonym) v The King [2024] SASCA 70, Doyle JA observed that discreditable conduct is not limited to conduct which constitutes a criminal offence, and that it connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant (and is of a level of seriousness or consequence that it might cause a jury to engage in impermissible reasoning).68 In my opinion, it is wrongful and amounts to discreditable conduct for an adult to instruct a child with respect to the deletion of electronic messages passing between them, particularly where the adult is not in a close familial or caregiving relationship to the child. One of the defendant’s instructions was responsive to DC mentioning that his father had set up a notification. 211 The admission of the evidence of the deletion and concealment messages from the defendant to DC in Exhibit P7 is subject to s 34P of the Evidence Act. The permissible use of the evidence pursuant to s 34P(2)(a) is to characterise the nature of the relationship between the defendant and DC and, in particular, to establish that the defendant acted so as to maintain that relationship. I am satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant. In so determining, I have had regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use of the evidence so as to remove any appreciable risk of the evidence being used for that purpose. 212 I direct myself in relation to the evidence of the deletion and concealment messages from the defendant to DC in Exhibit P7 that I may use that evidence in determining whether the defendant knowingly maintained a relationship with DC in the first half of 2022. I direct myself that that is the only way in which I may use the evidence. I am not to use the evidence to support a conclusion that the defendant was sexually interested in DC, or in any way in support of the defendant having a guilty mind concerning his relationship and interactions with DC. I must not reason that because the defendant instructed DC to delete and conceal messages with him, it follows that the defendant is a bad person or a person of dubious character and that he is therefore more likely to commit a crime or more likely to have sexually offended against DC. 68 At [50]; see also Sadler v The King (2023) 144 SASR 63, [27] (Doyle JA, Bleby JA agreeing). -- 41 of 44 -- [2026] SADC 43 40 213 I turn to the significance of the DNA evidence. At first blush, the defendant’s inclusion in mixed DNA profiles obtained from within DC’s pyjama bottoms is strongly supportive of the allegation of the defendant touching DC’s penis. Given the discrepancy within DC’s evidence about the timing of Monopoly night, and the complete absence of evidence about the wearing, storage and/or laundering of the Rocket League pyjamas between Monopoly night and the forensic tape lifting, I reject the prosecution’s submission that the DNA results support DC’s evidence of being touched on the penis by the defendant on that occasion. The only unlawful sexual act which might be supported by the DNA evidence is the touching and masturbation during the Fortnite incident. 214 There are three significant, and not fanciful, impediments to me concluding that the DNA on the pyjama bottoms was deposited by direct contact between the defendant’s hand and the inner surface of the garment. Those impediments are: 1. The evidence of DC handling the defendant’s phone; 2. The possible mechanisms for secondary transfer; and 3. The lack of evidence about the handling and movement of the garment between the alleged touching and the tape lifting of the garment. 215 The evidence (or absence of evidence) on these topics is relevantly interconnected. 216 It has formed part of DC’s account of the Fortnite incident since his first prescribed interview that the defendant was on his mobile phone while in the bedroom. Moreover, it was part of DC’s account in that interview that, when confronted by KY, the defendant made a denial and stated that he was reaching for his phone. At the PTSH, DC seemed to acknowledge that the defendant reached for his mobile phone, albeit that the phone was near DC’s ankle. Significantly, DC acknowledged the possibility of himself handling the phone when the defendant was showing him some news about Ken Hinkley. DC acknowledged that the phone could have been on top of or underneath the blanket which was covering him, and that it was possible that, after handling the phone, he (DC) went back to playing the video game and then touched parts of his own body. DC had to have touched his pyjama pants in order to remove them after the defendant’s departure. Returning to the evidence of DC’s initial complaint to KY, it is noteworthy that, on KY’s account, having initially denied that the defendant had touched him (in response to KY’s question about seeing the defendant’s hand leave the blanket), DC stated that the defendant was just getting his phone. The confluence of this remark and the terms of the defendant’s denial on my assessment renders reasonable the possibility that the defendant’s mobile phone was on DC’s bed that morning. 217 No evidence was led from DC as to how long after the defendant left he removed the Rocket League pyjama pants, how he did so, where he did so or what he did with them after removing them. There is no evidence about whether he used -- 42 of 44 -- [2026] SADC 43 41 the toilet or washed his hands. From the evidence of BS Perry, I deduce that the pyjamas were seized some time after 5:22pm when the photographs of the house were taken by a police crime scene examiner. On a broad estimate, the photographs were taken seven or eight hours after the defendant left the house. The photographs of the pyjama bottoms in situ in a bathtub appear to show them the right way out, and on top of another garment, which is not inconsistent in appearance with the matching top. There are other items, including toys, in the bath, at least one item being partially on top of the pyjamas. No evidence was led about the physical handling or packaging of the pyjamas before they were received at FSSA in the same bag. 218 According to Dr Taylor, a mobile phone is a good receptacle for DNA. He acknowledges secondary deposition of DNA by indirect transfer as a realistic, and not merely theoretical, means of explaining the presence of DNA on an item. Importantly, Dr Taylor acknowledged the possibility of the deposition of the defendant’s DNA within mixed profiles on the inner surface of the pyjama pants absent direct touching of the surface by the presence of DNA on his mobile phone and intermediate contact between the phone and blanket, or the phone and DC. The possibility of the incriminating DNA profiles being on the pyjama pants through secondary or tertiary transfer not involving direct contact by the defendant has not been excluded. 219 For reasons I have explained, I am unable to act upon the evidence of KY’s purported observation of the defendant’s hand leaving DC’s blanket. I would not use KY’s evidence to bolster the inference that the DNA results are explicable by a direct act of contact from the defendant, nor would I use the DNA results to enhance KY’s credit and reliability on the topic of her purported observation. The most probative evidence of an act of the defendant touching DC’s penis on the morning of the Fortnite incident is that of DC. As I have said, I consider that DC was a credible and compelling witness on this topic, and his credit is generally supported by the making of an initial complaint in the face of his mother’s questioning. However, that questioning was laden with KY’s own emotional description of what she thought she had witnessed, and it is difficult to quantify to what extent her assertion and the circumstances in which it was made operated upon DC to influence his disclosure, even if only subconsciously. 220 In order to find the defendant guilty of the offence of sexual abuse of a child, I must be satisfied beyond reasonable doubt that the defendant engaged in two or more acts of indecently assaulting DC. The difficulties which I have in accepting DC as a substantially accurate and reliable witness so far as his evidence about intimate contact from the defendant is concerned, such as arise from the timing of Monopoly night and its distinction from the Sunday night incident, his unexplained changing narrative about what occurred on Monopoly night, his late assertion about Education Perfect and the lack of support from KY and/or SB about significant facets of his account, cause me to doubt that the defendant touched him on the occasions and in the ways alleged, but I think that it is most probable that the defendant touched DC on the penis on the morning of the Fortnite incident. My -- 43 of 44 -- [2026] SADC 43 42 doubt about DC’s accuracy and reliability leads me to hold a reasonable doubt about his evidence which I must resolve in favour of the defendant. 221 In relation to the Fortnite incident, I am unable to exclude the defendant’s denial and claim of reaching for his phone as a reasonably possible explanation for what DC recounted from the time of confrontation by KY as touching of his penis. 222 The lack of consistency and clarity surrounding the other alleged acts of indecent touching on the prosecution case preclude me from being satisfied beyond reasonable doubt that the defendant engaged in at least two unlawful acts with DC taking the form of touching his penis, genital area or upper thigh. 223 As to count 1, I find the defendant not guilty. 224 For reasons already given, I am unable to be satisfied beyond reasonable doubt that the defendant touched DC’s penis on the morning of 6 June 2022. 225 As to count 2, I find the defendant not guilty. -- 44 of 44 --