[2026] SADC 18

Prosecution: R Counsel: MS A ZIMMERMAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: DANIEL JAMES ELEUTHERIOU Counsel: MR J. MARCUS, WITH HIM MR ALEXANDROPOULOS - Solicitor: MELLOR OLSSON Hearing Date/s: 15/12/2025 to 18/12/2025 File No/s: DCCRM-24-034479 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 ELEUTHERIOU Criminal Trial by Judge Alone [2026] SADC 18 Reasons for the Verdicts of Her Honour Judge Dunlop 3 March 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY The complainant and the accused were in a relationship and had a child together. The relationship ended in October 2023. Following the breakdown of the relationship, the complainant alleged that the accused had raped and assaulted her during the time that they were together. She made the allegation to a friend and to the police. The first alleged rape, act of penile vaginal intercourse, was said to have occurred in the shower of the house they shared. The second rape, forced fellatio, and the physical assaults were said to have occurred in their bedroom. Each offence was alleged to have occurred on a different occasion, and against a background of other controlling and aggressive behaviour by the accused. Verdict: Not Guilty on all counts. Criminal Law Consolidation Act 1935 (SA) ss 5, 5AA(1)(g), 20(4), 46, 47, 48; Evidence Act 1929 (SA) s 34M, 34P; Juries Act 1927 (SA) s 7(1)(a), referred to. R v Winner (1995) 79 A Crim R 528, cited in R v Keyte (2000) 78 SASR 68; R v Heng (2025) SASCA 57; R v Nieterink (1999) 76 SASR 56; R v J,A [2009] SASC 401, considered. -- 1 of 55 -- -- 2 of 55 -- R v ELEUTHERIOU [2026] SADC 18 Introduction 1 The defendant, Daniel James Eleutheriou, is charged with two counts of Rape contrary to section 48(1)(a) of the Criminal Law Consolidation Act, 1935, one count of Aggravated Assault Causing Harm contrary to section 20(4) of the Criminal Law Consolidation Act, 1935, and one count of Aggravated Assault contrary to section 20(3) of the Criminal Law Consolidation Act, 1935. 2 The complainant will be referred to as ‘AA’. 3 AA met the defendant in late 2020 and they commenced a relationship. The relationship ended and there was a period of no contact from about August 2021 but contact between them recommenced in May 2022 and the relationship rekindled. They lived together at the Taperoo house and were married on 21 October 2022. AA gave birth to their daughter, W, on 22 February 2023. 4 Over the months following W’s birth, AA was still physically recovering. The relationship between the defendant and the complainant was strained. 5 On 7 May 2023 the defendant was working outside while AA was in the shower. It is alleged that the defendant came into the bathroom, undressed and got into the shower with her. The defendant then put his hands on AA’s back, pushing her forward, and inserted his penis into her vagina. She said ‘no’, but he continued to thrust in and out of her vagina for about one to two minutes. This is the conduct that the prosecution allege is count 1. 6 The relationship continued until 22 August 2023, when they separated for a second time. Although she said they were no longer in a relationship, they continued living in the same house. On the prosecution case, they often slept in different rooms. 7 On 29 August 2023, AA sent an email to the defendant containing a proposal in relation to a property settlement and addressing parenting matters with respect to W. On the prosecution case the email angered the defendant. It is alleged the defendant said to AA, ‘if you go after [the house], I’ll put you in the ground.’ AA then went into the bedroom to breastfeed W. The defendant came into the bedroom and rubbed her leg and breast, then touched her clitoris and inserted his finger into her vagina. The defendant then left but returned and, once again, inserted his finger into AA’s vagina despite her saying ‘no’. On the prosecution case these acts are uncharged. 8 Later the same evening W was asleep in bed next to AA. The defendant again entered the room and leant over AA, putting his erect penis on her face. AA said words to the effect of ‘what makes you think that you can do this.’ The defendant then inserted his penis into her mouth, thrusting it in and out for about 30 seconds -- 3 of 55 -- [2026] SADC 18 2 to a minute. She was eventually able to pull her face away. She told him to get out. This is the conduct that forms the basis of the count 2. 9 It is alleged that on 8 September 2023, the defendant slapped AA’s face, hitting the corner of her eye and causing some swelling and bruising. This conduct is the subject of count 3. 10 Finally, on 21 October 2023, the defendant was in bed with AA. AA was holding W and asked the defendant to turn a fan off. It is alleged that he turned and punched AA in the arm. This is the conduct that is the subject of count 4. 11 A week later the pair were to go on a pre-planned trip to Renmark. They travelled separately. There was a disagreement over the phone while they were in transit. Although the defendant continued to Renmark, AA did not. Over that weekend she returned to the Taperoo property and moved out before the defendant returned. 12 The complainant disclosed the alleged sexual offending to her long-time friend, OCR, during October 2023. Evidence of conversations between OCR and AA were led as initial complaint on the prosecution case. Further, OCR also gave evidence of observations that she had made of interactions between the defendant and AA over the time that she knew them as a couple. Those observations included that the defendant was controlling and aggressive towards AA. 13 The verdict in this matter depends on the acceptance of evidence given by AA as credible and reliable, noting that the evidence of her friend, OCR, provides support of some aspects of her evidence. There are no eyewitnesses to the alleged assaults and rapes, and no other evidence in support of her account. All offences were alleged to have occurred in the family home at Taperoo. 14 The defendant gave evidence at trial. He spoke about the course of the relationship in terms which mostly mirrored the chronology given by the complainant. However, he denied that he had committed any of the alleged offences against the complainant. It was his evidence that he was never violent towards her, and that he had never engaged in sexual contact with her without her consent. The charges1 An information dated 10 October 2024 charged the defendant as follows: Count 1 Offence Details: 1 Notations from the information as to “Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offences” have not been included in this recitation of the information. -- 4 of 55 -- [2026] SADC 18 3 Rape (Section 48(1)(a) of the Criminal Law Consolidation Act, 1935). Particulars Daniel James Eleutheriou on the 7th day of May 2023 at Taperoo, engaged or continued to engage in sexual intercourse with AA by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting. …. Count 2 Offence Details: Rape (Section 48(1)(a) of the Criminal Law Consolidation Act, 1935). Particulars Daniel James Eleutheriou on the 29th day of August 2023 at Taperoo, engaged or continued to engage in sexual intercourse with AA by causing her to perform fellatio upon him, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting. …. Count 3 Offence Details: Aggravated Assault Causing Harm (Section 20(4) of the Criminal Law Consolidation Act, 1935). Particulars Daniel James Eleutheriou on the 8th day of September 2023 at Taperoo, assaulted AA and thereby caused her harm. Circumstances of aggravation It is further alleged that Daniel James Eleutheriou committed the offence knowing that AA was a person with whom he was, or was formerly, in a relationship. …. Count 4 Offence Details: Aggravated Assault (Section 20(3) of the Criminal Law Consolidation Act, 1935). -- 5 of 55 -- [2026] SADC 18 4 Particulars Daniel James Eleutheriou on the 21st day of October 2023 at Taperoo, assaulted AA. Circumstances of aggravation It is further alleged that Daniel James Eleutheriou committed the offence knowing that AA was a person with whom he was, or was formerly, in a relationship. …. General directions 15 The defendant pleaded not guilty and elected for trial by judge alone.2 In a trial by judge alone it is not necessary for the trial judge to replicate every direction that would be given in a summing up to a jury.3 However, I set out some preliminary matters which have guided my consideration of the evidence. 16 The prosecution bears the onus of proving the guilt of the defendant. The standard of proof is beyond reasonable doubt. In these reasons, if I use the words ‘proved’, ‘established’, or ‘satisfied’, in each case I mean to an extent which excludes a reasonable doubt. 17 The defendant is presumed innocent of the charges unless and until his guilt has been proved beyond a reasonable doubt, that is that the evidence satisfies me that each element of each charged offence has been proved beyond reasonable doubt. However, if the evidence fails to satisfy me beyond a reasonable doubt on any of the elements of the offence, then the defendant remains innocent, and I must return a verdict of not guilty. 18 If I am satisfied that there is an explanation consistent with the innocence of the defendant, or I am unsure where the truth lies, then I must find the charge has not been proven beyond reasonable doubt and I must find the defendant not guilty. 19 I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of the witnesses’ evidence. 20 I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy or prejudice. 21 I remind myself that even where there is no apparent motive or reason for the complainant to lie, that does not mean that AA is telling the truth. An absence of a motive to lie does not strengthen the Crown case. It is neutral. It would be wrong to conclude that because there is no apparent reason for her to lie, that her evidence must therefore be true. It is not for the defendant to prove a motive for her to lie, 2 Juries Act 1927 (SA) s7(1). 3 R v Winner (1995) 79 A Crim R 528, cited in R v Keyte (2000) 78 SASR 68. -- 6 of 55 -- [2026] SADC 18 5 or that she is lying. People may lie for all kinds of reasons. An absence of an identified reason to lie adds nothing to the task of assessing the credibility and reliability of the witness called. 22 Prior consistent statements do not bolster credibility or reliability. 23 With some limited exceptions, evidence from a witness of what they have been told by another person is generally not admissible and cannot be used as proof of any charge. 24 The defendant has given evidence. He was not obliged to do so. His evidence must be considered along with the other evidence in the case. By giving evidence and presenting a case, he does not assume any burden of proof. Even if I reject any evidence and denials that were given by the defendant, that is not an end to this matter. I must be satisfied that each of the elements of each of the charges under consideration has been proven beyond reasonable doubt, notwithstanding the case presented by the defence, before I can return a verdict of guilty. 25 The defendant is charged with four separate offences. Other than for the purposes identified by the prosecution, to give context to the relationship in which each offence is said to have occurred, it is necessary to consider each charge separately. I have done so. I remind myself that a finding of not guilty or guilty on one charge does not mean I will necessarily make the same finding in relation to the next charge. Elements of the offences Rape 26 The elements of the offence of rape are: 1. The defendant engaged in an act of sexual intercourse with AA. The definition of sexual intercourse includes any activity consisting of or involving penetration of a person’s vagina by any part of the body of another person (count 1) or an act of fellatio (count 2) and includes the continuation of such activity.4 2. AA did not consent to the act of sexual intercourse. A person gives consent if they freely and voluntarily agree to engage in the sexual activity.5 3. The defendant either knew that AA was not consenting, or was recklessly indifferent to AA’s lack of consent. 4 Criminal Law Consolidation Act 1935 (SA) s5 (‘CLCA’). 5 Criminal Law Consolidation Act 1935 (SA) s 46(2). -- 7 of 55 -- [2026] SADC 18 6 The defendant is recklessly indifferent to the fact that another person does not consent to sexual intercourse if: (a) He is aware of the possibility that the complainant might not be consenting to the act, but decides to proceed regardless of that possibility; or (b) He is aware of the possibility that the complainant might not be consenting to the act, but fails to take reasonable steps to ascertain whether the other person does, in fact, consent before deciding to proceed; or (c) He does not give any thought as to whether or not the complainant is consenting to the act before deciding to proceed.6 27 In this matter, the contest is as to whether the incidents occurred at all. The prosecution alleges an act of penile vaginal rape (count 1) and an act of forced fellatio (count 2). The defence case is that there was no act of sexual intercourse, let alone non-consensual sexual intercourse, on either occasion alleged. Aggravated Assaults 28 The elements of Aggravated Assault Causing Harm are: 1. The defendant assaulted AA. 2. The assault was voluntary. 3. The assault was unlawful; and 4. The assault caused harm. 29 The elements of Aggravated Assault are: 1. The defendant assaulted AA. 2. The assault was voluntary; and 3. The assault was unlawful. 6 Criminal Law Consolidation Act 1935 (SA) s 47. -- 8 of 55 -- [2026] SADC 18 7 30 As to the circumstance of aggravation, the prosecution allege that the defendant committed each offence knowing that the complainant was a person with whom he was, or was formerly, in a relationship.7 31 Again, the contest is whether the incidents occurred at all. The defendant denies that any such incident took place. Although I will deal with the elements in due course, I note that the evidence as to the aggravating feature was not challenged. There was no dispute that the defendant and AA were or had been in a relationship at the time of the alleged offending. Pre-Trial matters Special arrangements for witnesses to give evidence 32 The complainant gave evidence via closed-circuit television in a closed court. Her evidence was recorded. These arrangements are commonplace in our courts. I remind myself that I must not draw any adverse inference against the defendant, nor should I allow the fact that these arrangements were in place to influence the weight that I give to the evidence. Witnesses 33 The prosecution called two witnesses in this matter, the complainant and OCR. The defendant was the only witness on the defence case. The Evidence 34 I have attempted to address all of the evidence of the witnesses, both in examination in chief and cross examination, within the following discussion. Introduction to the witnesses 35 At the time of giving evidence AA was 30 years old. She is a professional resume writer, and she has two children. Her son ‘N’ was born on 21 September 2016, and her daughter ‘W’ was born on 22 February 2023. They have different fathers.8 The defendant is the biological father of ‘W’. 36 The defendant’s evidence was that he was 39 years of age and presently works as a marquee installer, having previously had a landscaping business and having worked in the rail industry.9 37 OCR first met the complainant in about 2009., They were friends until AA was about 20 weeks pregnant with W. OCR did not have contact with AA from that time, (being late 2022, after AA and the defendant were married) until about October the following year, 2023. During July to November 2023, OCR was 7 Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g). 8 T9. 9 T209. -- 9 of 55 -- [2026] SADC 18 8 travelling overseas. In October 2023 she reconnected with AA and they resumed their friendship. Commencement of the initial relationship 38 AA and the defendant’s evidence was similar as to the chronology of their relationship. Where there are differences of significance they are addressed below. 39 The defendant and AA first met through an online dating application and started talking in November 2020 and then progressing their relationship to in- person in December 2020. They were effectively living together from January 2021, engaged by about February/March 2021, and AA became pregnant at about the same time.10 However, the pregnancy was not viable. Following renovations to the defendant’s Taperoo house, they moved into that premises fulltime in May 2021. 40 The defendant agreed with this timeline.11 41 Prior to living with the defendant fulltime, it was AA’s evidence that their relationship was moving really fast, and that it was volatile at times.12 It was the complainant’s evidence that the defendant was under some pressures in the early stages of their relationship, including dealing with the end of his prior relationship, work and family stressors, and the stress of the renovation. 13 42 OCR first met the defendant in the early stages of the relationship between he and AA. OCR said that prior to AA moving in with the defendant, and during the first 6 months of AA’s relationship with the defendant, she saw AA every day. Over time however, that changed. The frequency of their contact decreased and continued to decrease. She said that she visited AA and the defendant at the Taperoo house from shortly after AA moved in. She made observations of their interactions. OCR also said that she overheard phone conversations between AA and the defendant while she was with AA. Fence incident 43 The complainant and the defendant owned five dogs. Shortly after they moved into the Taperoo house they built a fence to manage the dogs.14 It was the complainant’s evidence that during the building of the fence the defendant was frustrated and that, at one point, he pushed the fence towards her, striking her in the face and causing a black eye.15 She did not know whether the defendant had intended to hit her, but she walked away and left him to complete the job.16 10 T10. 11 T209. 12 T12. 13 T12-15. 14 T12-13. 15 T14. 16 T14. -- 10 of 55 -- [2026] SADC 18 9 44 It was her evidence that this black eye was seen by her friend OCR a few days later. OCR gave evidence that there was an occasion during the first 12 months of the relationship, that she saw the complainant with a black eye. There was no evidence about how pronounced the black eye was, or whether it would be noticeable to someone without prompting, or how long it persisted. 45 The defendant agreed in cross examination that AA had helped with the fencing, but said that he never pushed something into her and that he did not recall her having a black eye.17 Initial separation 46 In August 2021, the complainant and the defendant separated and she moved out. It was AA’s evidence that she felt that the defendant had not supported her during the pregnancy and what followed.18 In particular, at a time when it was medically necessary to avoid unprotected sex, she said that the defendant ejaculated inside of her during sex despite having agreed to pull out before doing so.19 This, combined with the earlier stressors and his alcohol usage, led her to move out to her own rental premises.20 Recommencement of Relationship 47 The complainant and the defendant reconnected in May 2022. It was her evidence that they both apologised for the way the relationship ended.21 The defendant was remorseful and acknowledged that he was not as supportive as he could have been. The complainant gave evidence that she also apologised that she had not behaved well after the end of the relationship, particularly in relation to one of their dogs.22 N 48 AA was N’s primary carer throughout the time of the relationship. He lived with her and the defendant at the Taperoo house during the week, and sometimes on weekends.23 Pregnancy and Marriage 49 Shortly after resuming the relationship, the complainant became pregnant again. It was her evidence that the defendant raised concerns about whether he was the father of her baby. In addition to that issue, the defendant lost his employment and his licence. These things put a strain on the relationship. However, despite the difficulties, the defendant and the complainant were married on 21 October 2022.24 17 T248-249. 18 T14. 19 T15. 20 T15. 21 T15. 22 T16. 23 T31. 24 T17. -- 11 of 55 -- [2026] SADC 18 10 OCR was a witness at the small wedding ceremony, but her contact with AA ceased soon after.25 50 The complainant’s evidence was that she and the defendant would engage in verbal arguments about the baby’s paternity and whether the complainant was cheating.26 It was put to the complainant in cross examination that any allegations of cheating ceased after W’s birth. She maintained that he continued to make that type of accusation.27 51 OCR gave evidence that she was aware of the defendant questioning AA about W’s paternity. That can only have occurred prior to the birth of W because OCR was no longer in AA’s life after that point. 52 The defendant acknowledged that he had questions about the baby’s paternity prior to W’s birth in circumstances where AA presented a positive pregnancy test within 2 weeks of them recommencing their relationship. AA was not happy about the defendant questioning her on that topic and it was the subject of disagreements between them. However, it was his evidence that those doubts resolved with W’s birth because she looked like him. Thereafter, the defendant accepted that W was his daughter. It was the defendant’s evidence that he had never accused AA of cheating on him.28 53 The complainant was cross examined to the effect that, after the reconciliation in May 2022, arguments became more frequent in the house. It was put to her that those arguments would start when the defendant did things that she did not like or approve of. She denied that was the case. It was put to her that she would abuse the defendant when things were not done her way. She denied that was the case. It was specifically put that arguments started because of his drinking, and she acknowledged that that was an issue between them. It was suggested that there were arguments about finances. She denied that was the case, indicating that their finances were “pretty separate”.29 54 AA gave evidence of excessive alcohol consumption by the defendant which impacted on his behaviour and his mood. She said that his drinking was one reason that she did not want him sleeping in the bed where she was co-sleeping with W. It was put to her in cross examination that she had exaggerated the defendant’s alcohol use. She denied that was the case.30 55 The defendant gave evidence that as their relationship progressed (having rekindled in May 2022) AA became more controlling, and that there were more 25 T193-194. 26 T21. 27 T176. 28 T219, 244-245. I note that the discussions they had about W’s parentage resulted from the pregnancy occurring within a few weeks of them rekindling their relationship, as distinct from an allegation of cheating. 29 T169-171. 30 T175. -- 12 of 55 -- [2026] SADC 18 11 frequent arguments about parenting of W, alcohol consumption and occasionally about finances.31 56 The defendant’s evidence was that anytime that he had a drink that would cause an issue with AA.32 He said that he would generally have a beer or two after work, but that he did not drink to excess, and he did not become intoxicated.33 He said that his drinking never interfered with his parenting responsibilities.34 57 In cross examination he said that his drinking was fairly consistent, except in a period leading up to W’s birth when he did not drink in case he had to drive AA to the hospital. He maintained that he would have a few beers after work, but clarified that he would drink more on the Saturdays. He maintained that it would be very rare that he would become intoxicated. He said that drinking generally made him “merrier”, not aggressive.35 58 The defendant said that AA liked things done in a certain way around the house and that, if things were not done as and when she liked, she would create arguments and threaten to leave the relationship. He said that this type of argument was more common towards the end of their relationship. He said that any time there was a disagreement, the complainant would post on social media that she was looking for rental accommodation. That would happen about once a month, and more frequently when they had argued. 59 He said that at the time they got married, things were “pretty good” and that he did not recall tensions in the relationship at that point. The wedding was AA’s idea, and they became engaged within a few months of recommencing their relationship. He said that AA had a bit of “cold feet”, but the wedding obviously went ahead.36 60 It was his evidence that by October 2023, when he said that the relationship ended, things were quite rocky. He attributed that to W being persistently unwell and the stress this put on the relationship. Visitors to the house and CCTV cameras 61 It was the complainant’s evidence that while the defendant’s family and friends were able to “come and go as desired”, that she rarely had visitors to the house, only being visited by her mother and her friend, OCR. AA’s evidence was that the defendant told her that he would prefer OCR not to visit. 31 T210-212. 32 T211. 33 T215. 34 T216. 35 T233-235. 36 T248. -- 13 of 55 -- [2026] SADC 18 12 62 The defendant said that he had no issue with OCR, and that he had no issue with AA having friends over at the house, but that she had very few friends.37 63 The complainant further said that the defendant would question her movements when she went out of the house. She said that he had access to their shared diary, but also to camera footage from the CCTV that was set up at the Taperoo house.38 64 A number of questions were asked by both prosecution and defence about CCTV cameras at the Taperoo house. The complainant said that there was one camera for a period of time and then, in about September/October 2023, two further cameras were added. It was her evidence that they both had the application (app) on their phones that allowed them to view the footage. She further said that she disconnected the cameras at the time that she left in late October 2023.39 65 The tenor of the complainant’s evidence was that the defendant used the camera/s to monitor her movements. It was put to her in cross examination that they served a different purpose and that the camera/s were installed to deal with theft from their yard. She agreed that the theft had happened, but disagreed that that was their sole purpose.40 66 Firstly, the defendant gave evidence that he never stopped AA from having friends come to the house.41 He further spoke about the initial CCTV being installed by AA, and him only having access to the app to view the footage for a short period of time. He said that the second two cameras were installed after property was stolen from his work trailer. At that time, he tried to join those cameras to the original camera application, but that he was unable to do so because AA had changed the password. This resulted in an argument between them.42 67 In cross examination he reiterated that, although he could not say for how long he had access, it was only for a matter of weeks or maybe a couple of months. He said that he didn’t know that the password had been changed, because he did not often try to log on. 68 The defendant’s evidence was that he had never used the CCTV system to monitor the complainant, that he had never commented on her comings and goings from the house, and that he had never challenged where she was going.43 37 T241-242. With one exception, being someone that AA had previously been intimate. This is discussed later. 38 T19. 39 T129-130. 40 T175. 41 T216, 241. 42 T217-218. 43 T218. -- 14 of 55 -- [2026] SADC 18 13 69 He agreed in cross examination that he might have messaged AA to ask her where she was but said that he was not surveilling her.44 Observations of OCR 70 OCR said that the defendant never directly asked her to leave the Taperoo property, but she did feel that she was not welcome. It was OCR’s evidence that she had been told (by AA) that her presence at the Taperoo property caused conflict in the relationship between AA and the defendant. I do not rely on that evidence for the truth of it, but to explain why OCR would spend time with the complainant away from the house.45 71 On whatever occasions OCR did visit, she did not see any physical violence by the defendant against the complainant, but she did observe the defendant to be verbally abusive and physically aggressive towards AA. She said that he had “macho energy” and always “had to make himself the biggest person in the room”. She said that he would talk to AA under his breath and stand over her, and that he would grab her by the arms and move her. She also said that the defendant would make derogatory comments and use threatening language to AA. She said that it was not playful.46 72 The defendant denied her allegations, saying that her comments were a complete fabrication.47 73 It was OCR’s evidence that the defendant made a lot of the comments about AA’s parenting capabilities, and other comments about “putting her under the ground” if she ever went after the Taperoo property. I will come back to this topic below, in particular in relation to the complainant’s evidence of such things being said, and the timing of that. 74 OCR further gave evidence that she was with AA when AA would receive phone calls from the defendant, and that she could overhear what was being said by both parties. It was her evidence that the defendant would ask her, “where she was going” and “how long for”, along with accusing AA of cheating on him.48 75 OCR said that she had seen the CCTV camera footage on the phones of both AA and the defendant. She saw the defendant checking the footage on his phone at the Taperoo house. She said that he seemed “paranoid” about anyone entering the property and explained that she based that on him saying things and padlocking the gates. 49 44 T247. 45 T189, 193. 46 T189-190. 47 T216, 244. 48 T191. 49 T191-192. -- 15 of 55 -- [2026] SADC 18 14 Cross examination of OCR 76 OCR was asked about the affidavit she provided to the police in this matter in April 2024. She went to the police station to provide that statement, it was provided in the usual way, and she agreed that she checked it before she signed it. 77 She explained that she had reconnected with AA upon her return to Australia, and that they had regularly discussed AA’s life with the defendant. It was her evidence that when AA said that she was going to press charges, OCR indicated that she thought that she had seen enough to give a statement to the police, and that she was happy to do so.50 78 She was asked about things that she said in her evidence, but that did not appear in her affidavits. She agreed that she did not say anything about seeing the defendant put his hands on AA, or about him tracking AA with the CCTV. She referred to parts of her affidavit in which she said that she spoke about him “monitoring her phone” and that she could not have private conversations with AA but acknowledged that she did not specifically say that Daniel was monitoring the CCTV or AA’s movements. 79 It was suggested to OCR that she had given evidence of things that AA had told her about, rather than things that she personally saw or experienced. It was further suggested that she might be unknowingly influenced by her many conversations with AA and be mistaken about what she saw, as opposed to what she was told. She said that she was talking about things that she had seen herself, firsthand. 80 It was suggested to her that she had exaggerated and lied to help AA’s case. OCR said that that was an absurd suggestion. That suggestion was repeatedly pressed, and the witness gave an answer best set out in full:51 …I actually do not have a relationship with AA anymore, not that it’s anyone’s business here, to be frank. I’m sorry if that is not an appropriate thing to say in a courtroom but I actually haven’t had a relationship with her or contact since September this year, so I actually have zero motive being here, I have been made to come here under court mandation, so I actually – I couldn’t give two rats arse about Daniel. 81 She went on to say: …that’s the truth. I have got a lot going on in my personal life and I still come here, to stand here and give the truth. I’m not bullshitting. I’m not making up any lies. I’m coming here because he is not a nice man and he deserves to reap the repercussions of his actions towards [AA], regardless of her and our relationship anymore, he has done things wrong and she deserves justice and he deserves to have – reap the repercussions of his action. 50 T201-203. 51 T207-208. -- 16 of 55 -- [2026] SADC 18 15 Restaurant incident 82 Late in her pregnancy AA and the defendant went out for dinner. AA was experiencing cramps and they went home early. She went to lay down, and the defendant laid down next to her. She said that he attempted to initiate sex. AA said that she felt quite ‘uncomfortable with cramping’, but she did not expressly say ‘no’52 and they engaged in sexual intercourse. It was her evidence that the defendant put his hand around her throat during sex. This was behaviour that they had consensually engaged in previously, but AA said that she told him that she did not want to do that while she was pregnant as she was concerned about the baby. After this incident, she was silent but tearful and went to the shower alone to think. There was no evidence led about whether there was any discussion with the defendant about that incident at the time, or after it is alleged to have occurred. 83 It was the defendant’s evidence that there was an occasion that she wanted to go home early and that they did. He said that they did not have sexual contact that night, and that he did not choke her with his hands. He said that he did not have sex with her if she was in distress53 or if she said ‘no’.54 In cross examination he agreed that sexual contact between himself and AA was less frequent during her pregnancy, but said that that did not cause him frustration. He agreed that there were occasions that he consensually choked AA during sex, but he maintained that did not happen at all while AA was pregnant.55 Living arrangements, sleeping arrangements and day to day life 84 The complainant said that she asked the defendant not to drink in the late stages of her pregnancy in case she went into early labour. She said that he went along with that, however he recommenced drinking after W was born.56 85 AA said that W would co-sleep in their bed. AA said that the defendant would only sleep in the bed if he had not been consuming any alcohol. This was due to her concerns that he might roll on W. Therefore, the defendant would often sleep on the three-seater couch in the lounge room area.57 86 During cross examination, it was put to the complainant that the regular sleeping arrangement was that they all shared a bed. She disagreed.58 It was put to her that the defendant regularly assisted with parenting of W when he was not at work. She said that his assistance was “ad hoc” and not frequent.59 87 The defendant gave evidence that after W’s birth, the usual sleeping arrangement was all three of them in the same bed. He said that when W was sick, 52 T21-22. 53 T226. 54 T239. 55 T238-239. 56 T31-32. 57 T31-33. 58 T171-172. 59 T171. -- 17 of 55 -- [2026] SADC 18 16 or when they had argued, he would remove himself from the bedroom and sleep on the couch. That was infrequent, only happening about once or twice a month. He said that he never had to sleep separately due to being drunk. 60 88 It was his evidence that he worked outside of the home to earn money, although AA did some work while at home as a casual employee. He said that he would change W in the morning and get her dressed and ready. AA would then feed her while he prepared breakfast for the family. He would care for W while AA took N to school and then he would head to work. He would come home from work in the afternoon and care for W until she needed to be fed. It was his evidence that parenting was shared.61 89 The defendant was cross examined about his care of W, and it was suggested that he was exaggerating his involvement with her. He denied that was the case.62 Sexual contact after pregnancy 90 Although AA was “cleared” to have sex after her post-natal checkup, she continued to have discomfort and pelvic floor weakness. About 8 weeks after W was born, AA said that they engaged in consensual sexual intercourse.63 Other than the charged and uncharged incidents referred to below, it was her evidence that that was the only occasion of sexual contact between them following W’s birth. 91 The defendant’s evidence was that he was aware of AA’s issues with pain and her pelvic floor. He said that they had consensual sex on a couple of occasions after W was born, once at about the 8-week mark and then very infrequently thereafter due to AA’s issues. He could not remember the last time they had engaged in sexual intercourse.64 Events around count 1 92 It was the defendant’s evidence that at some point in May 2023 he completed some paperwork about a child support assessment. He said that he did that following a disagreement to ensure that he could look after W if they separated. However, the relationship resumed and he cancelled the application within a few days.65 Count 1 The complainant’s evidence 93 On 7 May 2023, the complainant was expecting her son to come home and went to have a shower. She took W with her and put her in a bouncer on the 60 T212-3, 241. 61 T213-214, 237-238. 62 T238. 63 T23. 64 T240. 65 T226-227. -- 18 of 55 -- [2026] SADC 18 17 bathroom floor.66 The defendant finished his work in the backyard and joined the complainant in the shower. She said that it was quite a small shower, so she moved herself into the far corner to make room. It was her evidence that he put his hand on the top of her back, pushed her slightly forward and inserted his penis into her vagina. He then engaged in sexual intercourse with her for about 1-2 minutes. She said that he was thrusting inside of her vagina, but it was not the full length of his penis.67 94 The complainant said that she thought she froze, she was very uncomfortable and tense. She said ‘no’ to the defendant and tried to move away. She spoke in her normal tone, firmly and audibly, but she was not yelling. At no stage did she give consent for the defendant to have sex with her. The defendant did not respond. She said that she managed to get away. She opened the door of the shower, put on a towel, grabbed W and walked to the main bedroom.68 95 It was AA’s evidence that there had been no discussion of sexual intercourse that day.69 96 After the incident, they had a brief conversation when he got out of the shower. He said, ‘I’m not going to do anything around the house until you put out’.70 97 The following day she confronted the defendant and said, ‘what happened in the shower was rape’. The defendant looked at her and said, ‘no, because you’re my wife’. They had no further discussion about what happened, and the defendant behaved as if nothing had happened.71 98 After this incident the complainant remained with the defendant but began searching for rental properties. She said that she “detached” from the relationship. It was her evidence that she did not feel that she could report this incident to the police. She said that she was going through Family Court custody proceedings in relation to N, and that any suggestion of domestic violence might have impacted those proceedings.72 99 The complainant said that they had previously tried to have sex in the shower in 2021 but were not successful. In this context she referred to the small size of the shower.73 66 T24. A photograph of the shower was tendered as Exhibit P2. 67 T25. 68 T25-29. 69 T26, 30-31. 70 T25. 71 T26-27. 72 T27. These proceedings were ultimately finalised in November/December 2023: T76. 73 T29, 104. -- 19 of 55 -- [2026] SADC 18 18 Cross examination 100 The complainant was cross examined about this incident and acknowledged that she had not mentioned this incident in the initial affidavit that she gave to the police. It was her evidence that police were asking her about recent events and that when she mentioned the May shower incident, she was told that they wanted to know about a certain time period. She said that she had been there for hours, that she needed to get to school pick up, and that she had W with her that day. The police officer told her that that was enough for that day, and she understood that there would be another affidavit taken.74 101 She was taken to her second affidavit and acknowledged that this allegation was not mentioned in that affidavit. It was her evidence that she was asked specific questions which she answered in a structured interview. AA was told that these questions came from specific defence requests.75 102 It was put to her that there was no mention of the incident in the first two affidavits because she had made it up. She rejected that assertion.76 AA was taken to her third affidavit, the one in which this incident was first mentioned. It was her evidence that she was proofed by the DPP and asked about other instances of violence and that affidavit was taken as a result.77 103 The complainant indicated that she and the defendant had showered together on other occasions, but that him coming into the shower that day was unexpected. She said that there was tension in the relationship at the time.78 104 The complainant acknowledged that sex in the shower had not been successful on an earlier occasion when it was consensually attempted. She said that, on this occasion, even though she was not a willing participant, that the defendant was able to get his penis into her vagina, although she maintained that it was not the full length of his penis. 105 It was put to her that she had previously described this incident in different terms than she expressed in her evidence in this court.79 She was taken to an affidavit that had been filed in the Family Court80 and asked about the process by which it was taken. She agreed that she had given the lawyer information, and they had then typed up the affidavit. She agreed that she had checked it, and that she had signed it as the truth. She was taken to a paragraph in which she was speaking about this incident. She agreed that she said: 74 T93-95. Her attendance at HBPS to give her initial affidavit, and the giving of subsequent affidavit, are dealt with below. 75 T97-101. 76 T101. 77 T102. 78 T104. 79 T105-109, 156-157. 80 Signed 15 February 2024. -- 20 of 55 -- [2026] SADC 18 19 On 7 May 2023 I was in the shower alone and he joined me. He forcefully bent me over and put the tip of his penis inside of me.81 106 She explained that the affidavit was given by phone quickly in order to meet an urgent time frame. She said that there were page limits. She understood that there would be a further affidavit, a trial affidavit which would contain more detail if necessary. She talked about being limited with the initial affidavits and being unable to put in the full “forensic detail”.82 She was asked about her use of that term. She explained her understanding of it in the following way:83 My understanding, I’m a layperson, forensic details would mean a police investigation where they’re asking you really detailed account that you would normally not have to give in something like a Family Court affidavit. Maybe at a trial affidavit you would go into really extensive detail because it would be a trial, but this has never been heard by a judge, we’ve never had [to] give the evidence... A criminal investigation and charges are forensically examined not in the same way as a Family Court matter… 107 The complainant was asked whether her description of “just the tip of his penis went inside” accurately reflected what occurred on this occasion. She said that it was a summary of what occurred. She indicated that she trusted her lawyer’s judgment about what needed to go in and again referred to her understanding that a trial affidavit would be far more comprehensive. The defendant’s evidence 108 It was the defendant's evidence that he did join the complainant in the shower, but she left soon after. He said that there was no act of sexual intercourse in the shower, nor did he try to initiate sex with her.84 He said that he had never done anything of a sexual nature with AA without her consent.85 He maintained that account throughout cross examination, and denied that he had ever said that he would not help around the house unless she had sex with him.86 109 He said that they had consensually attempted sex in the shower previously without success.87 Separation 110 The complainant’s evidence was that she separated from the defendant on 22 August 2023. It was her evidence that she took this step because of the defendant’s drinking, and the resultant safety concerns for W. Further, she said that the 81 T108. 82 T108-109, T112-113, T156-157. 83 T157-163. 84 T219, 220. 85 T221-222. 86 T249. 87 T249. -- 21 of 55 -- [2026] SADC 18 20 defendant would become aggressive and was verbally abusive when he had been drinking although, when he did not drink, he was quite a good husband.88 111 It was the defendant’s evidence that they separated at his instigation on 27 October 2023.89 This will be addressed later. It was his evidence that he had never behaved badly towards her, including that he never said abusive things, even when he had been drinking.90 Incidents around the time of separation 112 On 3 August 2023, AA was breast feeding W who was grizzly and difficult to settle. She said that defendant punched her on the leg.91 113 The defendant denied that he did that, or that anything like that had occurred.92 114 It was AA’s evidence that, prior to this incident, she could not recall any other specific incidents of physical violence, although the defendant would forcefully grab her shoulders when he was in a bad mood.93 She said that she would have bruises from time to time.94 115 The complainant was cross examined about the grabbing of her shoulders and acknowledged that that allegation did not appear in any of the affidavits that she had given.95 116 OCR gave evidence of seeing the defendant grab the complainant by the upper arms and of bruising to that area. This will be dealt with later. 117 The defendant denied ever grabbing the complainant in this way.96 118 AA recalled another occasion where she had planned to meet a male friend for dinner.97 The defendant told her that if she did, she would not be able to come into the home again.98 The defendant denied ever having said such a thing,99 although he agreed in cross examination that he was concerned about her meeting up with that friend given that they had previously had an intimate relationship. He said that he told her that he was not comfortable.100 88 T34. 89 T214. 90 T214-215. 91 T39. 92 T219, 250. 93 T58. 94 T59. 95 T103. 96 T216, 244. 97 T40. 98 T40. 99 T216. 100 T242. -- 22 of 55 -- [2026] SADC 18 21 119 On 21 August 2023 AA said that she and W greeted the defendant on his return home from work, only for the defendant to allege that she had been deleting CCTV footage and implying that she was cheating on him.101 Following that she printed out the various documents and showed them to the defendant. She described this as having “filed for financial and property separation on that day”. Those documents included a tick box for if there were domestic violence allegations. She ticked that box. The defendant refused to sign that document.102 Count 2 Complainant’s evidence 120 It was the complainant’s evidence that, between 22 and 29 August 2023, there were a number of conversations about separation, including about finances and parenting. On 29 August 2023 this culminated with the defendant’s request that she send him an email setting out her proposal for their separation. 103 She did that. She then saw the defendant in the lounge room area, and it was her evidence that he said ‘You have no right to this house and if you go after it, I will put you in the ground'.104 It was her evidence that her email had said nothing about the Taperoo house. 121 Shortly after she was lying on her side in bed feeding W and the defendant walked in.105 He touched her left leg and then groped her left breast before moving his hand up and starting to rub her clitoris for about 30 seconds. She said 'no', but he continued and then put his finger into her vagina. The complainant said to him that she had sent the property settlement, and that she asked why he smelled like cigarettes and alcohol.106 122 The defendant left the room, returning about 30 minutes later having had a shower. He had a towel around his waist and walked over to her again. She was still breastfeeding W. She said that the defendant then inserted his finger into the complainant’s vagina again, making two or three motions before leaving the room again.107 These are uncharged acts. 123 The complainant was able to get W to sleep. Later that night the defendant came back into the room while the complainant was trying to sleep. W was next to the complainant in the middle of the bed. The defendant took his towel off, leant over the bed and put his erect penis on AA’s face. She said something like, 'what makes you think that you can do this?'. While she was saying this the defendant put his penis in her mouth. It was her evidence that she tried to resist and move away but he had put one hand on her face and she could not move for about 30 101 T40. 102 T40. 103 T41. 104 T41. It will be relevant later, but I mention that that is the only evidence that the complainant gave about such a comment being made. See T41, 63, 114, 177. 105 T41. 106 T41. 107 T42-43. -- 23 of 55 -- [2026] SADC 18 22 seconds. She managed to then pull her face away. The defendant then left the room, slamming the door. She said that she did not consent to the defendant putting his penis in her mouth.108 124 Following that incident, the complainant said that she started to lock the door to the bedroom. Cross examination 125 The complainant was asked about the email she sent to the defendant. She clarified that when she said it didn’t have anything to do with property, she meant that it didn’t have anything to do with the house. The email spoke about a small sum of money and child support. She said that she was surprised that he then threatened her about the house given that the email made no mention of it. It was put to her that he never said that, and she maintained that he did.109 126 AA was then asked whether she could be mistaken about him having put his penis into her mouth and she said that she was not mistaken about that. It was put to her that she had said the following in a Family Court affidavit about this incident: He came into the bedroom three times and touched me sexually without my consent. He fingered me twice and once tried to put his penis in my mouth. This was while I was putting W to sleep and feeding her. I resisting (sic), moving away, telling him “no”. 127 She was asked about her use of the word “tried”, and she explained that she said that because “it wasn’t consensual oral sex, it was resisted. He tried”. She explained again that this affidavit was for the Family Court and that, if the matter proceeded, she would have had to give more detail. She explained that what she had told this court was the “full forensic detail”. She said that the Family Court account was true, but it was not in full detail.110 128 There was then a line of questioning about what the complainant had said about the positioning of the defendant’s hands at different times. The effect of the questioning was that she had initially told police that one of his hands was positioned at the base of his penis but had not mentioned that his other hand was on her face. However, in a later affidavit and in court, she had said that his hand was on her face but had not mentioned anything about his other hand on his penis. It was suggested that these were either inconsistent, or that there were omissions from her account. She denied that they were inconsistent.111 Defendant’s evidence 129 The defendant agreed that AA had sent him an email setting the details of a property settlement. He agreed that the financial settlement had involved 108 T43-44. 109 T114-116. 110 T118-120, T162-. 111 T119-123. -- 24 of 55 -- [2026] SADC 18 23 payment of $10,000 to AA directly, and a further payment of the same amount into her superannuation. W would be cared for by both of them in a shared arrangement.112 There was no mention of the Taperoo house in the email.113 130 The defendant denied that he said anything to the effect of putting the complainant “in the ground” if she ever went after the house on this or any other occasion. It was his evidence that their relationship continued and that nothing further happened about a settlement. He said that things just went back to normal again.114 131 The defendant admitted that there was an occasion when he had smoked a cigarette, and that he did go and have a shower. However, he denied putting his fingers into AA’s vagina. He denied putting his penis into her mouth. The defendant repeated that he had never done anything of a sexual nature with AA without her consent.115 132 The defendant was cross examined as to why he remembers that he smoked on that particular occasion. It was suggested that there must have been something of significance about this day for him to remember that he had. He explained that he did not smoke while he was with AA, but he had done so on one occasion. It was the cigarette that he recalled, not anything else about that occasion that was significant.116 133 He said that the email did not surprise him, given that AA had previously applied for Centrelink and had been actively looking for rentals. He was slightly upset, but not angry. He assumed that things would go back to normal like they usually did. He believed AA’s behaviour to be an attempt at manipulation, but he said that he was used to that by this stage of their relationship.117 He was probed about the details of their disagreement and any conversations but said that he could not remember. This incident was of little weight to him.118 134 When the details of AA’s allegation were put to him, he maintained his denials of any wrongdoing.119 Count 3 Complainant’s evidence 135 The complainant spoke of an incident on 8 September 2023 when she said that W was teething and hard to settle, and she was up and down with her while the defendant was trying to sleep in their bed. AA said that she tried to put W in 112 T220. 113 T221. 114 T221. 115 T221-222, 235. 116 T236. 117 T250-251. 118 T252-255. 119 T250-252. -- 25 of 55 -- [2026] SADC 18 24 bed with the defendant. W’s distress woke the defendant, and he appeared to be really angry. The complainant was then sitting up in bed with W trying to comfort her. The defendant came towards her with a closed fist before opening his fist and hitting her with his palm to her right eye. This caused her immediate pain.120 136 AA recalled there being swelling and bruising in the days that followed and that her vision was impacted.121 It was a weekend, so it was difficult for her to see a doctor. However, she suggested calling 13SICK for a doctor to attend the house and the defendant said no. She said that she had to wear sunglasses when she went out as it was obvious as to what had occurred.122 Cross examination 137 It was put to the complainant in cross examination that she did have an injury, but that she told the defendant that it resulted from a head butt from W. She denied that she told him that.123 Defendant’s evidence 138 The defendant gave evidence that he did not strike her to the face on this or any other occasion. It was his evidence that AA told him that W had headbutted her while she was holding her, and that he was told that she had cellulitis to the face as a result.124 139 In cross examination, he agreed that this period in W’s life was difficult given that she was teething, and everyone was getting very little sleep. He said that coming from a shiftwork background he was not too bothered by the lack of sleep, and he could function regardless.125 Other allegations of aggression and violence Incident with the complainant’s drink 140 The complainant gave further evidence about a disagreement that occurred on about 30 September 2023. She and W were sitting in the front yard with the defendant when he inferred that she had been cheating, and that she had been deleting CCTV footage from their system. There was a further disagreement about who was paying for the subscription for the CCTV. The defendant then picked up AA’s drink and pushed it across the table towards her. She caught it, but the drink went all over her and W. She said that the drink had only just been opened and it was almost full.126 120 T48-50. 121 T50. 122 T50. 123 T177. 124 T220. 125 T255-257. 126 T58-59. -- 26 of 55 -- [2026] SADC 18 25 141 The complainant was cross examined about this incident in some detail. The language that she had used to describe the incident (pushed across the table) was put to her and she said that he threw it, not slid it across the table. She demonstrated the motion to clarify. It was put to her that she had changed her account, and she maintained that she had not. 127 142 She was further questioned about whether it was a glass or a bottle of drink. In her evidence she had referred to both, but she maintained that it was a bottle, and that is what she had indicated the day prior in her evidence in her answers when read as a whole. 128 143 The defendant said that he never threw a drink, bottle or cup, at AA.129 Breaking the lock incident130 144 On 2 October 2023 the complainant was in the bedroom with W and had locked the door. The defendant knocked on the door and asked to be let it. AA said no. It was her evidence that she was trying to get W to sleep. She said that she thought that the defendant had been in the shower, but she did not know why he wanted to get into the room. He was, on her account, essentially living in the loungeroom. 145 AA took a video recording of what happened. The recording was tendered as Exhibit P3. A photograph of the damage done by the defendant to the lock of the door was tendered as Exhibit P4. 146 AA was cross examined as to why she made that recording. She said that she was texting her family lawyer at the time the defendant came to the door. She said that the defendant was being drunk and aggressive, she felt unsafe and that she did not know what he was going to do so she pressed record to document what was happening. She later sent the video to her family lawyer.131 147 She was asked why she stopped recording, and she said that she heard loud footsteps as the defendant walked away. It was put to her that you could not hear that in the video and that she had stopped recording before she knew what he would do. She disagreed with those propositions. 148 It was put to the complainant that the defendant had gone for a shower and she had locked him out. It was put to her that he was trying to get in to get his clothes. She agreed that he had a shower and she could hear it, but said that he had clothing in the loungeroom.132 127 T148-152. 128 T148-152. 129 T225, 262 – the transcript should record “bottle” not bowl. 130 T34, 45-47, 73, 78-80. 131 T73, 78-80. 132 T79. -- 27 of 55 -- [2026] SADC 18 26 149 It was the defendant’s evidence that he went to have a shower after dinner, and that he returned to the bedroom wearing only a towel to find the door locked. He said that there had been no agitation before he went to the shower, and that he had never been locked out of the bedroom before. All of his clothes were in the bedroom. He said that he pushed on the door until the screws pulled out of the wood frame, that he retrieved his clothes and then went into the loungeroom. He said that the door was not repaired after this occasion. It was his evidence that he was confused about why the door was locked. He said that he would have asked her why it was locked, but he could not remember the precise words.133 150 In cross examination it was put to the defendant that the door was often locked, and that is why he said, “open the door” rather than “why is the door locked”. He said that the door was not usually locked, he was confused as to why it was, and that he pushed it to get the lock open so that he could get his clothes. He said that the lock had been in plain view by the light switch all the time he had lived at the house, and he had observed the small screws. He knew that it would not take much to get the screws out of the wall, and he said that he used minimal force.134 Recording 151 I have carefully watched that recording which last for 25 seconds. 152 Initially it appears that the door is shut because later, when opened, there is light visible coming from the hallway onto the wall in the bedroom. The door handle can be heard to rattle, and the door opens as far as it can given the locking mechanism. There is then a pause for a few seconds and the defendant can be heard quietly asking to be let in. At the 8 second mark AA can be heard saying “I’m trying to get W to sleep”. The defendant can then again be heard saying “open the door” three times. There is then a further pause before he starts applying pressure to the door. The applications start with less force, but the force being used escalates after three applications. On the sixth push, the locking mechanism breaks and the door opens – although not much past the limit of the door as it had been with the lock. The video ends at that point. Count 4 Complainant’s evidence 153 AA recalled another incident of violence on 21 October 2023. W had been sick for a number of weeks and on this night was suffering from a high fever. AA was giving her regular medication to try and bring down her temperature. There was also a fan on in the bedroom where they were all on the bed. 154 AA asked the defendant to turn off the fan, and he did not respond as he was asleep. She raised her voice to wake him and asked again which she said made him 133 T223-225. 134 T257-261. -- 28 of 55 -- [2026] SADC 18 27 angry. He punched the complainant with a closed fist to her left arm whilst she was holding W. W was hysterical at the time, the complainant was not sure if he impacted W. She thought that W was scared by his actions.135 The defendant said, ‘I will kill you, cunt’ and went back to sleep. AA left the room with W and stayed in the loungeroom. Cross examination 155 It was put to the complainant that the defendant never hit her on this occasion. Further, it was put to her that she had asked the defendant to turn off the fan, and that when he had not moved quickly enough, she hit him with a nappy bag containing a dirty nappy. AA denied that was the case. Defendant’s evidence 156 The defendant denied punching the complainant in the arm on this or any occasion. It was his evidence that there was an occasion that the complainant woke him to turn off the fan, and that she hit him in the side of the neck with a bag that had a used nappy in it. He said that he asked her why she had done that and then turned off the fan and left the room.136 157 It was his evidence that he never threatened to kill AA.137 Renmark holiday incident/End of the relationship The complainant’s evidence 158 The complainant and the defendant had planned a weekend away in Renmark for a family catch up with the defendant’s relatives at the end of October 2023. The day prior to the planned departure, AA said that she spent the day cooking and packing for the trip. She handed W to the defendant to have a few minutes to herself to allow her to pick an outfit to take. The defendant took W and said to her “your mummy she’s a narcissist”. AA was really upset by the comment and took W back. 159 I pause to address cross examination with respect to this last matter. The complainant agreed that she had not mentioned that the defendant referred to her as a narcissist in any of her affidavits. She went on to say, however, that she did refer to his use of that term in various text messages that were sent the day after he said it.138 In any event, the defendant acknowledged that he had said this to AA on one occasion near the end of the relationship.139 160 The complainant said that it was planned that they would leave together on the Saturday morning, 27 October 2023. However, the defendant then arranged some work on that morning. AA said that she messaged the defendant to tell him 135 T51-52. 136 T222-223, 262. 137 T226. 138 T128-129. I do not consider this omission from the affidavit to be of any significance. 139 T246. -- 29 of 55 -- [2026] SADC 18 28 that she was going to go separately as she was not happy about what he had said the day before and did not want to be in a car with him. She said that she packed the children and two dogs and started the trip. She drove as far as her mother’s house, which was about halfway to Renmark. During the drive, she rang the defendant who had already left Adelaide in his own vehicle. She asked if he had brought everything and he said that he had not, she had not told him to. AA was very upset that he had not brought their essential items. She decided not to continue to Renmark and, instead, she stayed at her mother’s house. Having made that decision, she cancelled the Renmark accommodation.140 161 Over the course of the same weekend, the complainant was advised that she had been successful in obtaining a rental property and that she could move in later in November. She attempted to bring forward that date but could not do so. It was her evidence that she needed to leave the relationship. She was feeling very unsafe. She did not want to stay with family or friends as the defendant knew where they lived. As such, she reached out to the domestic violence crisis line to seek advice and assistance. She arranged for removalists to come on Monday 30 October 2023, and she had moved out by lunchtime.141 162 It was her evidence that, on the advice of the domestic violence workers, she should make a police report. She did so, attending Henley Beach Police Station on 1 November 2023.142 163 It was suggested to the complainant in cross examination that it was the defendant that ended the relationship during the course of this weekend, not her. She did not agree.143 164 The complainant was asked about her search for rental accommodation while she was still in a relationship with the defendant. She said that she had been looking for rental accommodation from May 2023. She agreed that she was doing so because she felt unsafe in the home with the defendant. She said that the defendant knew that she was looking for somewhere else to live because it was all over her social media that she had gone to a rental inspection.144 165 It was put to her that she told the defendant that she was moving out in late November/December. She agreed. She further agreed that there was a discussion about her possibly moving into the spare room until that point but continuing to live at the Taperoo house. It was put to her that she discussed that because she was not, in fact, scared of the defendant. She denied that.145 140 T52-T56. 141 T56-58. 142 T58. 143 T177-178. 144 T167-168. 145 T168-169. -- 30 of 55 -- [2026] SADC 18 29 The defendant’s evidence 166 The defendant’s evidence was that he ended the relationship on 27 October 2023, the weekend of the planned Renmark trip.146 He said that the original plan was that they travel to Renmark together, but that AA told him that morning that she was going separately. He said that AA rang him while he was on route and asked if he had brought the food and her personal things. He had not done so because he said that he thought that she had already taken what was needed. He said that she yelled at him and told him to go back to Adelaide and get those things. He said that he did not do so and continued on to Renmark. He said that the relationship was rocky at this time and he put that down to the strain caused by W’s persistent illnesses and the consequent lack of sleep they both suffered, which led to conflict.147 167 It was his evidence that this was not the first time that AA had yelled at him. He would generally try and calmly talk through the situation or remove himself from it. However, he said that this incident was the final straw. He decided to end the relationship. He told her in a phone call that he “was done” and that he was not going to put up with it anymore. He said that she was “infuriated”.148 168 He stayed at Renmark for a few days. Over those days he said that AA persistently tried to call. He did not answer but responded to a few of her messages that related to the location of a pharmacy in the Riverland, and questions about the hospital. She further sent messages about having secured a rental property and that she would be moving out in late November. There were messages about needing help to care for W. During those messages, the complainant proposed moving into another bedroom in the house until she moved to the new place. 149 169 By the time he returned home to Taperoo, AA had moved out of the house. 170 It was his evidence that he could have done more to restore his relationship with AA with respect to parenting. Further, he acknowledged that other issues, including having a new business and other personal issues, likely affected the relationship.150 Evidence of injuries Photographs of injuries 171 The complainant said that she took photos of most of the injuries she suffered, however she no longer had those photographs. She said that the defendant had been 146 T214. 147 T231, 262-264. 148 T229-230, see also T245-246 with respect to AA yelling at the defendant, T263. 149 T229-230. 150 T231. -- 31 of 55 -- [2026] SADC 18 30 through her phone before separation, and that he had removed all of the images and videos that she had on her phone.151 172 It was the defendant’s evidence that AA had a password on her phone, that he did not know that password, and that he could not access it. He said that he never deleted any messages or photographs from AA’s phone.152 In cross examination he acknowledged that there were a few times when AA had inputted her password and given him the phone if he needed to use it. He said that happened very infrequently.153 173 AA said that she had sent some of those materials to other people, specifically that she sent the video in the bedroom to her family lawyer, and a photograph of her injured eye to her mother. It was her evidence that she had attempted to get the photographs from her mother and that, on her understanding, her mother was not able to retrieve it.154 174 She was cross examined about the collection of photographs of injuries. She kept all her photographs in one folder, rather than separating them out into albums.155 • She said that she did not recall taking a photograph of the black eye following the fencing incident. • She did take a photograph of the bruise to her leg that followed the punch to her leg on 3 August 2023, and she agreed that she had sent that to her mother and, potentially, to her family lawyer. • She did take a photograph of the injury to her eye following the 8 September 2023 incident. She said that she sent that photograph to her mother and a doctor that she saw via 13SICK. • She did not recall if she took a photograph of the bruise that followed being punched in the arm on 21 October 2023.156 W was very sick and she was focussed on her at that time. 175 She said that the defendant had removed these photographs because he was the only person with access to her phone, and she had not deleted them.157 The complainant said that the defendant had ready access to her phone which he often used to send himself photographs of W.158 It was her evidence that there were passwords on her mobile phone and her laptop and that the defendant knew them 151 T60. 152 T226. 153 T236-237. 154 T60-61. 155 T80. 156 T147-148. 157 T70-72, 135-137. 158 T77. -- 32 of 55 -- [2026] SADC 18 31 both. It was her evidence that she mostly used face ID on her phone rather than the password.159 176 It was AA’s evidence that she was not actively looking at or for these photographs until after Domestic Violence Services became involved in late October 2023. It was at that time that she realised that they were no longer on her phone.160 177 Other than the video that she had sent to her family lawyer, she did not recall whether she sent the lawyer any of the injury photographs. She said that the lawyer was representing her in relation to N, and although she was generally aware of the dynamics in the household, it was not professionally appropriate for her to send such photographs at that point. However, it was then her evidence that from 22 August 2023 the lawyer was advising her with respect to her separation from the defendant, particularly in relation to parenting plans. She acknowledged that there were various assaults, resulting in injury, which occurred after that date. 161 She no longer had the messages that she had sent to her lawyer. She deleted them soon after they were sent to ensure that they were confidential given the nature of the communications that she was having with the lawyer.162 She said that the defendant had also deleted threads of messages between her and her mother which would have contained any photograph/s.163 178 It was suggested to AA in cross examination that she had never taken such photographs, and that she had simply made up the allegation that the defendant had deleted them. She denied that this was the case.164 179 The complainant was asked to confirm that she had not deleted any photographs of injuries herself. She said that she had not. It was then put to her that she had told the police officer to whom she had originally given her statement, that she had deleted some photographs. It was her evidence that she definitely did not say that. 180 Her meeting with the police officer was recorded and a snippet of that recording was played to the complainant.165 When speaking about an injury to her eye, she agreed that she told the police officer: I had the photos on my phone but I had to delete them. 181 She went on in her evidence to say that she had no memory of deleting the photos of her injuries, aside from deleting what she said to her family lawyer. She explained that when she said that she was implying that what she had access to 159 T181. 160 T72-73. 161 T74-76. 162 T137. 163 T82-83. 164 T76-77. 165 Exhibit P6, noting that the portions tendered -- 33 of 55 -- [2026] SADC 18 32 through her family lawyer was not available, in other words, that she had deleted the message chain. She drew a distinction between deleting photos from her phone album and deleting a message chain containing photos. She went on to say that she was in the police station, upset and holding a young baby.166 Observations of physical contact and injuries to AA by OCR 182 OCR said that she observed injury to AA over the time that AA was in a relationship with the defendant. She said that she saw a black eye within the first 12 months of their relationship. She further spoke about seeing “finger like” grab marks on the complainant’s upper arms and legs on a “regular” basis.167 She was cross examined on this topic. She said that she seemed to have bruises “quite often”, but that there were at least a couple of times that she saw bruising to her arms.168 183 I pause to address the marks on the legs. There is no evidence from the complainant of any interaction with, or assault by, the defendant in which bruising of any sort was caused to the upper part of her leg/s. Given that, I put to one side OCR’s evidence of seeing such bruising. 184 In cross examination OCR was taken to portions of the affidavit that she had given and asked about what was said on the topic of bruising, as distinct from the evidence she had given on that topic. It was put to her that she had not said anything in that affidavit about specifically seeing bruising to AA’s arms and thighs. Notes of incidents during the relationship 185 AA was further asked in cross examination about notes that she made in her phone about incidents during the relationship. She confirmed that the notes were made proximate in time to the things that happened, and that they were mostly made in chronological order. She said that they were a brief summary of what happened. She confirmed that they were accurate. She said that the notes were to document pattens within the relationship so that she could refer herself back to times when the defendant apologised and the family was happier. She said that she did not make them for any court purposes. She could not recall if she sent the notes to her family lawyer.169 186 She was re-examined about the notes and explained how she would access those notes and where they were located on her phone. She explained that it was an Apple “app” (application) on her phone and she would access the notes app from within a folder in her phone. She did not recall if the folder had a name.170 166 T140-144. 167 T189. 168 T199. 169 T68-70, 74, 129-130. 170 T182-183. -- 34 of 55 -- [2026] SADC 18 33 Attendance at Henley Beach Police Station 187 The complainant had her phone with her when she went to Henley Beach Police Station to make the report. She said that she was not asked to provide her notes, and that she was answering questions asked by the officer that day, not referring to her notes. She said that she could recall the various dates that things had occurred when speaking to police. She said that she was distressed that day and that she had W on her (carrying her) while she was speaking to the police.171 Complaint Evidence of the complainant 188 The first person to whom the complainant disclosed the alleged sexual offending was OCR in October 2023. She had not had contact with OCR for months while she was overseas, but OCR having read a message about AA trying to find a rental property, they reconnected. 189 Specifically, AA discussed the shower incident, and identified it as being rape. She told OCR that she said ‘no’ and that he had continued regardless. She told her that it had happened in May 2023. Further, she told OCR about the defendant putting his finger inside of her, and his penis into her mouth and that she did not consent to it. She said that OCR used the word ‘digital penetration’ during the phone call which stuck with her because she had not heard that terminology before.172 190 It was AA’s evidence that she decided to disclose these incidents to OCR because she had known her for about 15 years, and she felt like she could confide in her.173 AA said that she could not talk to people that were related to the other family court proceedings (relating to N) or who were mandatory reporters. 191 The complainant could not confirm with certainty whether there was just one conversation with OCR in which she discussed the alleged offending. She gave evidence that once she started talking again, they spoke a lot on the phone. 174 Cross examination 192 The complainant was questioned about the words that she used when speaking to OCR about the allegations of rape. It was put to AA that she told OCR that the defendant had put his penis “in” her face and that he was saying profanities at the time. She said that was not what she said to OCR.175 171 T84-85. 172 T61-63. 173 T63-64. 174 T64. 175 T164-165. -- 35 of 55 -- [2026] SADC 18 34 Evidence of OCR 193 In early October 2023, OCR and the complainant resumed communications via Facebook Messenger. After initially reconnecting in this way, they also had phone contact while OCR was still overseas. During one of these phone conversations the complainant disclosed to OCR that something sexual had occurred between her and the defendant in May 2023.176 It was OCR’s evidence that they proceeded to have quite a few in-depth phone calls. She said that the disclosure mainly occurred during one conversation, and that the dates were mentioned by the complainant in that conversation. They then had more conversations, and, from that, she came to have a better understanding of the household and issues within the relationships, including allegations of violence, sexual abuse and general bad behaviour. 194 OCR said that the complainant disclosed that she and the defendant were not having regular sex. It was OCR’s evidence that the complainant told her that she was in the shower and the defendant had followed her in and then forcibly pushed or bent her over and penetrated her. It was her evidence that the complainant said that she screamed and yelled, that she told him to stop and to get off her. OCR further said that the defendant told the complainant, ‘if you don’t put out, then I’m not going to be doing anything around the house’.177 The complainant also told OCR that the defendant smelt of alcohol and cigarettes at the time. 195 The complainant further disclosed another incident that she said occurred on 29 August 2023. The complainant stated that she was in their main bedroom on their bed feeding W, and the defendant walked in the room smelling quite strongly of alcohol. AA said that he tried to initiate sex and she declined. AA told OCR that he had put his fingers inside of her, and that he had put his penis in her face and made derogatory comments, including that if she went after the house, he would put her “under the ground”.178 Cross examination 196 Although OCR was cross examined on other topics, she was not directly challenged as to her evidence of the complaint. Cross examination of the complainant 197 For the most part, I have dealt with the cross examination of the complainant in the consideration of the evidence. However, there are some matters about which she was cross examined which have not been covered. For completeness, I mention them now. 176 T194. 177 T194-195. 178 T195. -- 36 of 55 -- [2026] SADC 18 35 Affidavits given to SAPOL 198 The complainant was asked about the various affidavits that she gave to the police. She was taken through the dates that they were given and signed, the locations of signing and details as to which police officer she gave each affidavit. She acknowledged that she was given the opportunity to read and check them. She indicated that those affidavits were given by her responding to questions. She said that she did not control the narrative.179 Affidavits given for the Family Court proceedings 199 She was also taken through the various affidavits that she swore for the Family Court.180 Defence case 200 It was put to the complainant that the defendant never physically or sexually assaulted her during their relationship. She maintained her allegations. 201 It was put to her that he had never called her names or used abusive language towards her or made threats towards her. She said that was false.181 202 The complainant was asked whether she did anything wrong in the relationship with the defendant, and whether she would do anything differently if she had her time again. That question was very broad and would have been difficult for anyone to answer. In any event, she referred to pushing hard about the defendant’s alcohol consumption as something that she may have done “wrong”, and said that while she was not perfect, she considered her behaviour from May 2022 to October 2023 to be such that she had no regrets or remorse.182 Defendant’s evidence 203 I remind myself that the defendant was not obliged to give evidence. His evidence must be considered the same as any other witness and along with the other evidence in this case. 204 I have dealt with his account within the earlier consideration of the evidence. 179 T85-93. 1. Affidavit to Morrow at HBPS, 1 November 2023. 2. Affidavit to Smith by phone, 10 April 2024, and signed 11 April 2024. 3. Affidavit to Santucci by phone, 3 July 2024, and signed 15 August 2024. 4. Affidavit to Santucci by phone 26 November 2024, and signed 13 December 2024. 5. Affidavit to Santucci, signed 11 December 2025. 180 T153- 155. 1. 15 February 2024, 17 pages including annexures. 2. 5 August 2024, 5 pages of affidavit with 3 pages of annexures. 3. 11 October 2024, 3 pages of affidavit with 2 pages of annexures. 4. 9 July 2025, 9 pages. 181 T175, 177. 182 T178. -- 37 of 55 -- [2026] SADC 18 36 Closing addresses 205 I will not summarise each aspect of counsel’s closing addresses, but I have considered all arguments made and provide a brief overview. Prosecution address 206 Ultimately, the prosecution submitted that AA was both a credible and reliable witness. Ms Zimmerman submitted that she presented as very articulate, measured and confident, but made appropriate concessions during her evidence. The prosecution submitted that the complainant was not attempting to paint the defendant in a bad light, and that any such suggestion did not fit with how she presented as a witness. 207 The prosecution submitted that the absence of corroborative evidence, such as photographs, did not operate to reduce AA’s credibility where a clear and reasonable explanation for their absence had been provided. Ms Zimmerman further submitted that there was evidence that supported AA’s account. Firstly, OCR’s observations of the relationship dynamic. Secondly, Exhibit P3 being the video footage of the aggressive behaviour displayed by the defendant. 208 In relation to any inconsistences in the complainant’s version and previous affidavits, Ms Zimmerman submitted that they did not amount to inconsistencies that adversely affect the complainant’s credibility. Moreover, given that the family court affidavits were interim affidavits, it is reasonable to expect that not all detail would be added in those affidavits. Likewise, the omission of the shower incident in the complainant’s early affidavits was said to be entirely plausible given her explanation that the police only questioned her on recent events. 209 Ms Zimmerman submitted that the defendant’s evidence could be rejected as a reasonably possibility in relation to the accounts of the charged acts. She submitted that there were three main topics of concern. Firstly, the defendant’s evidence was inconsistent with the evidence of OCR. Secondly, due to the lack of detail that he could recall of the alleged charged incidents. Finally, it was submitted that the defendant’s description of what occurred in Exhibit P3 was inherently implausible. 210 The prosecution submitted that the timing of the complaint supports AA’s account, in that it demonstrated a degree of consistency of conduct. With respect to the uncharged conduct of the defendant elicited as part of the initial complaint, the prosecution submitted that this evidence was only admissible to make the admissible aspects understandable. 211 Ultimately, the prosecution submitted that AA was both a credible and reliable witness, and that the defendant’s evidence should be rejected as not being a reasonable possibility. -- 38 of 55 -- [2026] SADC 18 37 Defence address 212 Defence counsel submitted that AA was not credible or reliable and that the defendant’s evidence should be accepted as being reasonably possibly true. 213 Mr Marcus submitted that there were three key issues with AA’s evidence. Firstly, the lack of corroborative evidence. Secondly the evidence to Constable McMorrow with respect to deleting images. Finally, other inconsistencies within AA’s evidence. 214 Defence counsel drew attention to the fact that the complainant produced a number of floorplans, images of the bathroom and video, which should be balanced against the fact that no photographs of AA’s injuries or messages of the bad behaviour were produced. Mr Marcus submitted that having regard to the meticulousness and detailed nature of AA’s evidence, it would be inherently implausible that the defendant would have been able to go through her phone and delete photographs and messages. Likewise, it was AA’s evidence that she made contemporaneous notes of when incidents occurred. It may be expected that the complainant would have noticed that photographs were being deleted from her phone. 215 Defence counsel submitted that AA lied about deleting photographs of her injuries from her phone. Mr Marcus submitted that ultimately these photographs did not in fact exist and that this is the only logical inference that could be drawn having regard to the tenor of AA’s evidence. 216 Mr Marcus suggested that caution should be exercised when analysing Exhibit P3. He suggested that there may have been an element of strategy about the way AA recorded the video to portray that the defendant was a person of bad character. 217 Mr Marcus submitted that the inconsistencies within the complainant’s evidence reached a critical mass that affects AA’s credibility and reliability. Specifically, this related to the inconsistences in her evidence in this court as compared to that contained in the Family Court affidavits. Notwithstanding the limitations to these affidavits, AA accepted that she understood the importance of them, and the importance of making sure they were accurate. Mr Marcus pointed to inconsistencies, particularly with respect to the counts of rape. 218 Defence counsel submitted that there were two key issues with OCR’s evidence. Firstly, that there were several omissions from her affidavit to police in April 2024 as compared to her evidence in court. It was submitted that this impacted on her credibility and reliability. Secondly, that there was a real risk of contamination of her evidence given the frequency and the detail of her conversations with the complainant about the offending, and the relationship more broadly. -- 39 of 55 -- [2026] SADC 18 38 219 Defence counsel submitted that both AA and the defendant’s evidence was in lockstep on most points, apart from the charged acts. Defence submitted that the defendant explained the allegations as best he could and was clear in his denials, which ultimately should be accepted. Thus, the defendant’s evidence is to be preferred over that of AA where their evidence comes into conflict. Discussion Discreditable conduct 220 The prosecution addressed three particular areas relevant to this aspect of the evidence: evidence of alcohol use/abuse, evidence of uncharged sexual violence and evidence of uncharged physical violence. The defendant’s use of alcohol183 221 There were numerous references by the complainant to the defendant using and abusing alcohol. It was AA’s evidence that he drank to excess, and that when he did so, he became aggressive and behaved badly. During her evidence, it became apparent that the defendant had lost his licence at some stage, and that at one point he had a device on his car into which he had to blow before the car would unlock. 222 This evidence was part of the narrative of the complainant’s evidence of their relationship, and relevant to various aspects of their living and sleeping arrangements, their regular interactions and tensions in the relationship. Uncharged acts of sexual assault 223 There were three acts of uncharged sexual assault alleged on the prosecution case. With respect to the allegation that the defendant did not “pull out” prior to ejaculation as had been agreed, and the occasion when he choked her during intercourse while pregnant, the prosecution say that these events are part of the relationship between the defendant and AA. They help explain that sexual contact of a non-consensual nature did not come ‘out of the blue’ with count 1. They submit that it also can be used to understand that the defendant was emboldened to commit the charged acts of sexual violence, given what had gone before. 224 With respect to uncharged digital penetration of the complainant in the lead up to count 2, the prosecution questioned whether such behaviour amounted to discreditable conduct, or it was part of the integral narrative. In my view it is discreditable and I will direct myself accordingly.184 Uncharged acts of physical aggression or violence 225 There were significant incidents, both in number and subject matter, of uncharged physical violence led on the prosecution case. These acts included: 183 See, for example, T17 and 32. 184 R v Heng [2025] SASCA 57. -- 40 of 55 -- [2026] SADC 18 39 • a possible push of fencing material at AA hitting her in the eye and causing her injury; • grabbing of AA’s shoulders; • verbal abuse (including calling AA a ‘narcissist’, accusing her of cheating, threatening her); • …“standing over” AA; • breaking the bedroom door lock; • punching AA’s leg; • pushing a drink towards AA; and • monitoring her movements. 226 I have paid close attention to those uses that were set out by the prosecution in their closing address.185 227 I have paid close attention to the submissions about whether these matters amount to discreditable conduct. I was referred to the comments of the Court of Appeal in R v Heng [2025] SASCA 57, particularly at [46]-[52]. I propose to deal with all of the conduct as if it were discreditable. 228 The charged offences occurred in the context of a relationship that extended over years. It would be difficult to understand that relationship, and to assess the behaviour and reactions of the parties to events within the relationship, without a full picture of what happened between them. It is for the background and context purposes that these incidents were led, and that is the way in which I have had regard to them.186 Directions 229 I have not reasoned that because the defendant is alleged to have engaged in criminal activity on some other occasion, or that he has behaved badly in some other way, that he is a bad person or a person of bad character and that he is therefore more likely to commit a crime, including one of the charged offences. Nor have I reasoned that he is therefore the sort of person who commits crime and is therefore more likely to have committed these offences. 230 I have not reasoned that because the defendant has engaged in some criminal activity or bad behaviour, he is therefore a person of bad character and therefore 185 T292. 186 R v Nieterink (1999) 76 SASR 56 at [42]-[44], [76] (Doyle CJ). -- 41 of 55 -- [2026] SADC 18 40 more likely to lie or be lacking in credibility. I have not therefore used the evidence to undermine the credibility of his evidence. Complaint 231 I remind myself that the evidence of what AA disclosed to OCR is not evidence of the truth of the allegation she made. I have considered that evidence as relevant only to AA’s credibility and reliability. I have used the evidence to understand how the allegations first came to light, and to assess whether AA’s conduct is consistent with her allegations. 232 The expression “consistency of conduct” in section 34M of the Evidence Act includes making a complaint at a time when it would be expected to be made.187 I consider that AA’s decision to disclose at the time and in the circumstances that she did is consistent with her allegations. 233 I have taken into account that there may be many reasons why AA told OCR about these matters at the time that she did, and why she chose to tell OCR rather than another person or people. 234 Elsewhere in these reasons I have dealt with the asserted inconsistency in the complaint with respect to the second count of rape. I won’t repeat that here. 235 Further, I note that as a matter of practicality and fairness to both AA and OCR, more detail about the complaint was led that might often be the case. Evidence was heard from OCR about uncharged allegations proximate in time to the charged acts. It would have been entirely artificial to limit OCR to just those comments that were strictly admissible as complaint evidence, and it would have made leading her evidence very difficult. However, with the exceptions of inconsistencies which will be addressed later, I make clear that I have put to one side the inadmissible portions of her account of the conversations and relied only on those matters that would be admissible as complaint with respect to the two charged sexual allegations. Impressions of witnesses 236 While the demeanour of a witness and their presentation is always a matter of consideration, it is important to ensure that undue weight is not given to those matters in the assessment of the witness’s honesty and reliability. Any determination of those issues can only be made having regard to the whole of the evidence, including the criticisms raised by the defendant. The complainant 237 The complainant listened carefully to the questions being asked and sought clarification or detail when the question was ambiguous or unclear. She was quite literal in her interpretation. She was very precise and very particular in her language. She was careful about her answers and about ensuring that she 187 Evidence Act 1929 (SA) Section 34M(4)(a)(ii). See R v J, A [2009] SASC 401. -- 42 of 55 -- [2026] SADC 18 41 understood the question before giving an answer. Her evidence was extremely detailed, particularly with respect to dates on which many events had occurred, and fine details of events. 238 She struck me as a naturally curious person, someone who educated herself about matters that impacted on her. Relevant to these proceedings, and the proceedings in the Family Court, she was clearly someone who asked questions about why things happened, and she had some understanding of the criminal and family court system. 239 She was very matter of fact throughout most of her evidence but demonstrated emotion at times when you might expect her to do so given the nature of the allegations about which she was speaking. 240 For the most part, I did not form the impression that AA was exaggerating or doing anything other than attempting to recall the events about which she was speaking, and I did not form the impression that her reactions or presentation were contrived. OCR 241 OCR’s evidence supported the complainant’s evidence in some respects, particularly in her observations that the defendant would, at times, stand over the complainant and make derogatory comments about her. However, her observations of the relationship were at a time well prior to any of the alleged offending taking place. 242 OCR presented as a confident and articulate lady. I was left in no doubt about her feelings towards AA, and her feelings about being compelled to give evidence. I was left in no doubt that she did not like the defendant, but that she had only come to court because she had to, and because, in her mind, justice required her to do so. 243 Her final answer, and the manner in which it was given, lead me to the firm conclusion that she was an honest witness. However, I have some hesitation about the reliability of her evidence. 244 She spoke extensively with the complainant about the alleged offences, and about AA’s relationship with the defendant generally. These conversations took place from October of 2023, and I infer, up until the breakdown of the relationship between OCR and AA in about September of 2025. I have no doubt that OCR was doing her best to recount things that she had seen and heard for herself, however, there are some aspects of her account which don’t tend to fit the timing of events in the relationship. Also, her evidence was given as fairly bland statements of observations that she said she made, but she was not asked about the details such that I could have confidence that they were feelings and observations that she made, devoid of any influence, even unconsciously, from things that she had been told by the complainant. -- 43 of 55 -- [2026] SADC 18 42 The defendant 245 With respect to the evidence of the defendant, there was nothing about his presentation which, of itself, caused me to doubt his evidence. He was clearly nervous, particularly in the early stages. He had clearly considered his evidence before he gave it and, in some parts, his evidence seemed somewhat rehearsed. However, I understand that he would have thought long and hard about what happened on the occasions in question, and how to explain it. There were times where questions were asked that he had clearly not considered or prepared for. In those moments, he paused and thought before answering. He was considered and measured. 246 The defendant gave his evidence in a very calm way. He showed little emotion, except when speaking about his daughter at which time he became quite upset. He was able to compose himself and continue, but that emotion was not far beneath the surface when the topic of W was raised. 247 He was a man of few words, and his answers were generally brief and direct. He was not asked a great deal about his life outside of the period of his relationship with the complainant, so it was difficult to get a sense of him more broadly. 248 As with the other witnesses, it is the content of his evidence which is of most importance. While his presentation and demeanour did not give rise to concerns about his credibility and reliability, it is the substance of his evidence that must be closely considered. I turn to that topic now. Defendant’s evidence 249 I remind myself that it is not for the defendant to disprove the commission of these offences. It is for the prosecution to prove beyond reasonable doubt that the defendant did commit them. It is not whether I prefer the account given by the complainant or the defendant, I must be able to reject the denial given by the defendant as not being reasonably, possibly true. To this extent, it is his denial that he did not commit any of the alleged offending that I must be able to reject. 250 The prosecution said that I should reject his evidence for three primary reasons: • That his evidence was inconsistent with that of OCR, • There were significant details that he could not remember, and • His evidence about Exhibit P3 was implausible and obviously untrue. Inconsistent with evidence of OCR 251 OCR said that she saw the defendant looking at footage on the CCTV, although she did not give evidence about the frequency or time period during which she made those observations. Given the period in which AA lived at the Taperoo house prior to the final end to the relationship, and that OCR was out of -- 44 of 55 -- [2026] SADC 18 43 the picture soon after October 2022, it is not necessarily inconsistent with the defendant’s account that he only had access to the CCTV footage for a short period of time. 252 Whether OCR’s observation of the defendant looking at the CCTV contradicts his evidence that he never monitored AA in that way is not clear to me. There is insufficient detail about what OCR saw, the context and frequency for me to reach that conclusion. 253 Of more significance is the difference between the defendant’s evidence that he never asked the complainant where she was when away from the house, or that he never accused her of cheating. Those were matters about which OCR gave evidence, saying that she had overheard conversations in which he said those things to AA. 254 With respect to the latter, being allegations of AA cheating on him, there was a degree of imprecision about the language used about this in evidence. There was a degree of imprecision about when such things were said to be overheard. 255 The defendant admitted that he had questions about W’s paternity prior to her birth, and that it was a topic that came up with AA from time to time. However, he said that he did not accuse the complainant of cheating after W’s birth. It was not clear to me that anyone made a clear distinction between questions about paternity, and allegations of cheating. 256 Given that OCR’s involvement in the lives of AA and the defendant predates W’s birth, it could be that what she was hearing was that discussion about paternity of W. As such, that does not contradict the defendant’s evidence. 257 With respect to OCR’s evidence that he would check up on AA, the defendant admitted that he would ask her where she was, or where she was going. One might think that that is an unremarkable occurrence during any relationship. Again, what OCR heard may fall into that category, rather than the perversive and controlling monitoring that was being alleged by the prosecution. Absent details, for example of frequency of observations or precise words or tone, I cannot conclude that such enquiry by the defendant took on the more sinister character asserted by the prosecution, as distinct from the usual checks that might happen in most relationships. 258 I note that some of the matters about which OCR gave evidence did not appear in her initial affidavit. I make little of that. She is a layperson giving a statement to a trained investigator. She does not necessarily know what is or may be important. 259 As I have said, OCR was an honest witness. However, at the time when she was making these observations, she was friends with AA and had clearly formed a negative view of the defendant. I accept that she is now no longer on good terms with AA, but I cannot discount that her impressions of their relationship, even her -- 45 of 55 -- [2026] SADC 18 44 observations, were coloured by what she was being told by AA at a time when they were on good terms. 260 One example of that is OCR’s evidence that the defendant told AA that he would “put her in the ground” if she went after the house in her presence on many occasions. Firstly, given the timing of the breakdown in her relationship with AA, OCR can only have heard such comments prior to W’s birth, and prior to the complainant and the defendant speaking about a property settlement upon separation. Secondly, the complainant gave evidence about only one occasion when such a comment was made. On the complainant’s own evidence, that was something said on a particular occasion. Thirdly, that conversation the complainant spoke of in which she alleged that comment was made was in August 2023 and at a time when OCR was overseas. Finally, it was OCR’s evidence that AA had told her about such a comment being made to her when they spoke after reconnecting in October 2023.188 261 Again, I do not doubt OCR’s honesty, but I do have a question about her reliability on this topic. As such, I do not find that that aspect of her evidence is supportive of the complainant’s evidence as to such a threat being made in the context of count 2. 262 I turn to the evidence of OCR’s own observations of the defendant’s “macho energy”, of him speaking down to AA, and of the defendant grabbing her shoulders in a way that was not jokey or affectionate. I accept that OCR observed occasions of the defendant behaving in such a way. 263 “Macho energy” is a very subjective description. From just those words, it is hard to understand precisely what she saw and what she was intending to convey, but as far as that account goes, I accept it. The tenor of the defendant’s evidence was that he did not present in that way, but again, behaviour is subjective. What he would understand that to be may be different from OCR’s perception. 264 As to speaking down to AA, again, I accept that OCR perceived such behaviour. But again, there was little detail about what she saw and heard, the context of such observations, and the reactions of the people involved. 265 I come to the grabbing of the shoulders. The complainant’s evidence on this topic came out when she was asked about other physical assaults prior to the first charged occasion. She denied physical assaults but mentioned, almost as an aside, that the defendant would forcefully grab her shoulders when he was in a bad mood. She went on to say that it was his way of asserting himself, and that there were occasions when she might have bruising as a result.189 OCR said that she saw 188 See evidence on this topic: AA, T41, 63, 114, 177. OCR, T190, 195. The defendant: T221. 189 T58-59, 103. -- 46 of 55 -- [2026] SADC 18 45 bruising to AA’s upper arms, a few times, that appeared to be “grab marks”, and that he would move her in that way.190 266 I accept that OCR made observations of behaviours by the defendant which were of a nature that would be consistent with an attitude of aggression towards the complainant. These are not things that she has just been told. She saw them. She was able to describe them and to describe the frequency with which she made such observations. The defendant, of course, denied such behaviour. 267 I do not accept his evidence that he never behaved in such a way towards the complainant. I have reached a view that the defendant was not as perfectly behaved as he states, and that there were times that he did not speak kindly to AA, that he expressed views about her that were not complimentary during the course of the relationship, and that he used some force in his interactions with her as described by AA and OCR. However, I have considered that finding in the context of his evidence as a whole. Although I find that he was not entirely forthright about his own behaviour on occasions during the relationship, the concern that raises does not rise to the level of me being able to reject the whole of his evidence. Details that the defendant could not recall 268 I do not find that it was surprising that there were details about the various alleged occasions that the defendant could not recall. On his account, while there were memorable occasions during the relationship, many of the days that he was being asked about where not significant to him, assuming that the offending alleged did not occur (as per his evidence). 269 On the other end of the spectrum, there were matters about which he did have considerable recall. Again, I am not troubled by that. The defendant has had to prepare for his trial. That would necessarily involve a detailed consideration of events of the past, events that were set out in considerable detail by the complainant. Although their accounts of the critical moments and events may differ, it seems like most of the surrounding circumstances of the various charged incidents were not disputed. 270 I did not form the view that he was, as the prosecution put it, “picky and choosy” about what he remembered. The defendant’s account of Exhibit P3 – breaking the bedroom door lock 271 The video is not a complete record of all of the interaction between the defendant and the complainant that night. It is a 25 second recording within the whole of the incident that is complained about. 272 In terms of the complainant’s account, I accept that she was texting with her family lawyer. I accept that she may have been trying to get W to sleep. She said that she took the video to document what was happening because the defendant 190 T189, 199. -- 47 of 55 -- [2026] SADC 18 46 was drunk and aggressive and she did not know what was going to happen. She said that she felt unsafe. In those circumstances, I find it unusual that she would stop recording once the lock was broken, but before she had a chance to know what the defendant would do next. He had, at the point that she ceased the recording, opened the door to the room that she and W were in. To my mind, it would be more consistent with her stated concern for her safety that she would continue recording to see what happened next. I suppose that she may have been fearful of letting him know that she was recording, but she did not give that evidence. 273 It was her explanation that she stopped recording because she heard loud footsteps walking away from the door. I have considered the recording. I do not accept her evidence as an accurate recitation of what happened after the door was opened to the point when the recording is stopped. The recording cuts off almost immediately upon the door opening and before the defendant had any chance to walk away. 274 Ultimately, I turn to consider what is seen in that video, and the explanation given by the defendant. 275 When initially hearing the defendant’s account of this incident, it was my view that his evidence was implausible. The defendant spoke about precisely exerting pressure on the bedroom door to pull the screws from the wall. He denied being angry at the time. It was his evidence that he was confused about why he was locked out of the room. 276 I note that, at that stage of hearing his account, I had only viewed the footage of Exhibit P3 on one occasion while in court. Having heard all of the evidence, and particularly the account of the defendant for his actions, I have now watched Exhibit P3 with all of the evidence in mind. 277 The prosecution invited me to find that he was acting aggressively during this incident. There is a degree of aggression that is inherent in forcing open a door. However, his voice is not aggressive. He is not yelling. He is not loud. It is almost like a sing-song tone that he adopts. Further, the opening of the door does appear to be controlled. Although it is pushed open with force, it does not fling entirely open in an uncontrolled way, as you might expect if indiscriminate force was being used to obtain entry. 278 Despite my initial hesitation, considering all the evidence on that topic, I find that I cannot reject the account that he gave of his behaviour on this occasion. Minimised his own negative emotions 279 A further point made by the prosecution in their submissions was that it was implausible that the defendant was as calm as he claimed to be at all times. It was implausible that he denied feeling angry or upset, particularly when sleep deprived, as he acknowledged that they both were due to W’s ongoing and persistent health issues. However, he maintained that he was experienced at dealing with sleep -- 48 of 55 -- [2026] SADC 18 47 deprivation, having been a shift worker for more than a decade. Further, his presentation upon giving evidence was that he was a very calm and measured person. 280 Although I think that, at times, he minimised his emotional state, I cannot say that my view about that causes me to doubt his evidence as a whole. Again, assessment of mood, behaviour and tiredness are all subjective. Almost everyone has the tendency to look back on their own behaviour through rose coloured glasses, but that does not necessarily call into question their character and general credibility and reliability. Use of alcohol 281 The defendant denied regularly drinking to excess but talked about drinking one or two beers every night, and considerably more on the weekends. Again, what drinking to excess is can be a very subjective assessment. The differences in his assessment, as compared to the complainant, can be explained in that way. Comment 282 Throughout examination in chief and cross examination the defendant maintained his denials of sexual violence, and of any physical violence perpetrated against the complainant. The testing of his evidence did not reveal any obvious inconsistencies or significant deficiencies in his account. Absence of photographs 283 Other than in respect of AA’s credibility and reliability generally, there is little that turns on this evidence. She said that she took a photograph of the injury to her eye (count 3), but it was consistent between the parties that she did have such an injury. The contest is to how the injury occurred. A photograph would not assist in resolving that question. 284 She could not remember taking a photograph of the injury that she said she suffered with respect to the last count. Therefore, again, the absence of the photograph does not take me anywhere. 285 The only other occasion in which she stated that she did take a photograph was of a bruise to her leg following an alleged punch on 3 August 2023. This is the photograph that she said she sent to her mother and potentially her family lawyer. 286 Although the subject of considerable questioning during the trial, the upshot of this evidence is that the complainant maintains that she did not delete any photographs of injury from her phone album, nor any message trails with her mother in which those photographs were located. It was her evidence that she had deleted messages with her family lawyer for confidentiality purposes. It was her evidence that the defendant had access to her phone, and that he must have deleted the images and messages because she did not. -- 49 of 55 -- [2026] SADC 18 48 287 It was the defendant’s evidence that he did no such thing. He said that he rarely used her phone, and that it otherwise had a password on it. 288 Counsel for the defendant urged me to find that the complainant had lied, relying on the implausibility of such images being deleted from both the photo album and also any message chains. Mr Marcus further submitted that the comment the complainant made to the officer who initially took her affidavit was proof of a lie. 289 With respect to the former, it could be thought odd that photographs she sent to others are not able to be retrieved. But it is not unheard of for technology to fail, or for users to cause such failure. It is not so inherently implausible that, of itself, I could reach a conclusion that the complainant was untruthful on that basis. 290 Further, I note that her explanation for the material not being available is not impacted by the fact that she has previously been involved in court proceedings, and whether she knew, as a result, that such evidence would be important. On her explanation, she did not realise that the messages were missing until after she left the marital home. In those circumstances, it would not have mattered if she knew it was important or not. It was no longer there at a time that she first took action for which such photographs could be used in a legal setting. I remind myself that though clearly an intelligent woman who had absorbed information about the justice system because of her involvement in it, she is not trained as an investigator or a lawyer. 291 Finally, I make nothing of the fact that she was making notes about incidents in the relationship but did not notice that the photographs were missing. The notes and the photographs were in two separate parts of the phone. Again, the inference from her evidence is that she did not go looking for the photographs until after she left in late October 2023. 292 Turning to the latter of the criticisms made, her evidence in court was unambiguous that she had not herself deleted any relevant photographs. Contrary to that, Mr Marcus drew my attention to the recording of her giving her initial affidavit. I have watched that portion of the footage carefully and considered the cross examination on that topic. 293 In my view, this is an inconsistency in her account about whether she deleted messages, telling the police that she had, and saying in court that she did not. 294 I considered whether it was possible that the complainant had just forgotten that she had deleted photos. However, there was no ambivalence in her answers on this topic. She was confident, indeed adamant, that she had not done so. In this respect, at the least, I have a concern about the complainant’s reliability. 295 It could be said that this is a peripheral issue, but I do not find it to be so. The same level of certainty was exhibited throughout her evidence. It would be easy to rely on that confidence and the certainty of the answers, but I find that I need to be -- 50 of 55 -- [2026] SADC 18 49 cautious. Even if not being deliberately false in her evidence, this aspect of her evidence makes clear that there is a question about reliability. 296 The further aspect to her evidence is that, having been presented with that recorded snippet, she said in evidence that she was talking about her messages with the lawyer. I do not accept that evidence. 297 At the end of the evidence on this topic, I am left with two competing versions of events, and concerns about the complainant’s credibility and reliability on this topic. I simply do not know where the truth lies. In the end, for the reasons that follow, I have found it unnecessary to come to a firm conclusion about this topic, or to factor it into my ultimate consideration of the matter. Count 1 Omission from the initial affidavit 298 Given the circumstances in which the complainant gave her initial affidavit to the police, and given her unchallenged evidence that she mentioned the May 2023 rape allegation to the officer, the omission does not cause me to doubt her credibility or reliability with respect to this incident. People who are making allegations are generally asked questions by investigating police, and will generally defer to the police about what is or isn’t relevant, what is or isn’t necessary or important to the process of taking the statement. I accept that the complainant mentioned the occasion, and that she believed that the incident could be put into a later affidavit if/as necessary. 299 I accept that her second affidavit was taken to address particular questions or issues, and that she answered those questions. That the allegation was not included in that affidavit does not cause me concern. 300 I accept her evidence as to how the allegation came to be included in her third affidavit, after a proofing with the ODPP. Potential inconsistency as to the description 301 I have closely considered the complainant’s evidence in court and what was said in earlier affidavits filed in the Family Court proceedings as to the incident in the shower. I accept that the Family Court affidavit was prepared and filed as the complainant said, in circumstances of urgency and with limits as to pages. However, I think that the description given by the complainant of this incident is different from her evidence in court, and that that difference is significant. In reaching that conclusion, I have considered the purpose of the affidavits provided, and the level of detailed questioning that occurs when giving oral evidence in a criminal trial. I have also considered the precise nature of the complainant’s evidence, and her approach to her evidence generally. 302 To my mind her description of him inserting his penis into her vagina, albeit it not “the full length” of his penis, and the affidavit description of him putting -- 51 of 55 -- [2026] SADC 18 50 “just the tip of his penis inside” are different. Further, despite page limits and urgency, there is, to my mind, a difference between putting the tip of his penis inside of her and thrusting his penis in her for one to two minutes. 303 Prior inconsistent statements or omissions on peripheral matters are readily understandable. It is next to impossible to reduce into writing every facet of an incident or relationship that has extended over time. It is also not realistic to expect that people will tell a story, particularly about a traumatic event, in the same way each and every time it is discussed. However, some inconsistencies and omissions are more significant than others. 304 I am conscious that, on either description given by the complainant, the offence of rape will have been committed. However, it is the evidence that was given in court upon which the prosecution rely for the purpose of this charge. 305 I have further taken into account the evidence of OCR about her conversation/s with the complainant about this incident. While there much that is consistent about the account given to OCR by AA, noting that prior consistent statements do not bolster the complainant’s evidence, there are two matters about which OCR gave evidence in this court that do not accord with the account given to OCR. Firstly, OCR says that she was told by AA that the defendant smelled of cigarettes and alcohol on this occasion. The complainant gave no evidence of that in her account, however she did speak of the defendant smelling like cigarettes and alcohol on the later occasion of rape. Secondly, OCR said that she was told by AA that she screamed and yelled during this incident, and that she told him to stop. It was AA’s evidence that her reaction to the shower rape was that she said ‘no’ in a firm voice. It is the second of these inconsistencies which is more concerning to me. It is another matter which I have considered, along with other inconsistencies. 306 In the circumstances of this allegation, I am left with a doubt as to AA’s account due to the difference in her allegations with respect to this matter. Evidence of the defendant 307 In any event, throughout examination in chief and cross examination the defendant maintained his denials of sexual violence on this occasion. The testing of his evidence as to this occasion did not reveal any obvious inconsistencies or deficiencies in his account. Further, those matters to which the prosecution drew my attention to ask that I reject his evidence as a whole, I have dealt with earlier. I am unable to reject his evidence at large. I am unable to reject his denial with respect to this incident. Conclusion - Count 1 308 There are two accounts of this incident which simply cannot be reconciled. Either the incident happened, or it did not. 309 Though he acknowledged getting into the shower with the complainant on this occasion, the defendant denied having sexual intercourse with the -- 52 of 55 -- [2026] SADC 18 51 complainant, let alone sexual intercourse without her consent. He was not shaken in cross examination. Although there were aspects of his evidence about which I consider he was not entirely honest about his own behaviour, he was generally a credible witness and a reliable historian. 310 Given my concerns about the reliability of the complainant’s account, I find myself unable to exclude the defendant’s account as a reasonable possibility. 311 I find the defendant not guilty of count 1. Count 2 Evidence of the defendant 312 There was some questioning as to why the defendant had a memory of this particular day, if the day was as unremarkable as he said. I understand why that topic was explored. I am not critical of the prosecution for doing so, but given the allegations that have been made, and the time, thought and emotion that the defendant would have experienced over the course of the prosecution of this matter, it seems logical to me that he would have spent time considered the allegations in detail, and taking him mind back to the events during the course of the relationship. I do not find it unusual that he might remember details of a day that was otherwise unremarkable to him, apart from it being the day of the property settlement email, in circumstances where the focus of the prosecution and the trial drew so much attention to that particular occasion. Potential inconsistency as to the description 313 As to the criticism of AA’s evidence around the positioning of the defendant’s hands during the incident, I did not consider that this amounted to an inconsistency at all. 314 I have closely considered the complainant’s evidence in court and what was said in earlier affidavits filed in the Family Court proceedings. I have further considered what was said by AA to OCR about this incident. In my view, the descriptions given by the complainant of this incident are different, and that difference is significant. 315 While I accept the complainant’s evidence about the time frame in which an affidavit had to be filed, and her evidence as to page limits, the difference in her account is not a matter that required details or expansive explanation to correct. In fact, in the circumstances of this count, it required fewer words (removal of “tried to”) for that affidavit to accord with the evidence she gave in court. To my mind there is a difference between an act where the person “tried” to put their penis in your mouth, and actually following through. 316 Were that the only occasion on which imprecision of language was raised with respect to the complainant’s account, it may be that that would not carry the day. However, having observed the complainant to be such a precise and careful -- 53 of 55 -- [2026] SADC 18 52 witness, about language and about her account, and where there are other occasions of differing descriptions, I am left with a doubt about her account. 317 As to the evidence of the content of her complaint to OCR, to my mind there is a difference between someone putting their penis “on” or “in” your face, as opposed to putting their penis in your mouth. OCR was clear about the words used, and I accept her evidence as to what was said during that conversation. There is a further minor inconsistency which I mention, that being that AA told her that the defendant smelt strongly of alcohol on this occasion, whereas the complainant spoke more of cigarette smoke smell. However, it is the earlier inconsistency which leaves me with concerns about the complainant’s evidence. 318 I have considered the complainant’s explanations for the differences. They do not change my view of them, or resolve my concerns. 319 Again, although there was nothing about the complainant’s evidence, in substance or presentation, which made me think that she was being positively untruthful in her account, that she had said different things at different times leaves me with a doubt about this incident. Conclusion - Count 2 320 There are two accounts of this incident which simply cannot be reconciled. Either the incident happened, or it did not. 321 Again, the defendant was not shaken in cross examination. The testing of his evidence on this topic did not reveal any obvious inconsistency or deficiencies in his account. Again, I have considered the matters to which the prosecution referred in making their submission that I should reject his account. However, I find myself unable to reject his evidence generally, and unable to exclude the defendant’s account as a reasonable possibility. Given that, and the matters about the complainant’s account to which I have earlier referred, I find the defendant not guilty of count 2. Counts 3 and 4 322 There are two accounts of each incident which simply cannot be reconciled. Either the assaults happened, or they did not. 323 Again, the defendant was not shaken in cross examination. I have gone back to the complainant’s account and considered the detail she provided. I find myself unable to exclude the defendant’s account of these occasions as a reasonable possibility. I find the defendant not guilty of each count. Verdicts 324 Proof beyond reasonable doubt is a high standard. This is necessarily so because of the consequences that follow a conviction for a serious criminal offence. For the prosecution to prove any of the charges against the defendant, the court must accept the evidence given by the complainant beyond a reasonable -- 54 of 55 -- [2026] SADC 18 53 doubt, while also excluding the defendant’s evidence denying the offending as a reasonable possibility. 325 It is not sufficient for the court to decide the case on what probably happened, or to hold suspicions about that. 326 I find myself unable to exclude the defendant’s denials as a reasonable possibility. I am therefore left with a reasonable doubt as to the conduct the subject of the charges. 327 The verdicts should not be seen as a finding that the complainant has deliberately lied in her evidence, or that the defendant has positively told the truth. This is one of those cases where, on an assessment of the whole of the evidence, it is not possible to be satisfied beyond a reasonable doubt that the charges have been proved. 328 I find the defendant not guilty of each count. -- 55 of 55 --