[2026] SADC 21

Prosecution: R Counsel: MR N REDMOND - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: DAVID STANLEY ATTWELL Counsel: MR J WILSON - Solicitor: EVANS TESTA BARRISTERS & SOLICITORS Hearing Date/s: 13/01/2026, 14/01/2026, 15/01/2026, 19/01/2026 File No/s: DCCRM-24-021975 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 ATTWELL Criminal Trial by Judge Alone [2026] SADC 21 Reasons for the Verdict of her Honour Judge Telfer 13 March 2026 CRIMINAL LAW-PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – SEXUAL ABUSE OF A CHILD The accused is charged with sexual abuse of a child. The complainant was the accused’s step-grand- daughter. The conduct constituting the offence is alleged to have occurred at the complainant’s family home on occasions when the accused stayed the night with her family, and on an occasion when the complainant slept over at the accused’s home. Proof of the allegations relied on proof of overnight stays at the complainant’s house. Evidence was called on the prosecution case which undermined the proposition that the accused stayed overnight at the complainant’s family home. The police investigation was incomplete and limited and the accused suffered a forensic disadvantage as a result. HELD: The accused is not guilty Criminal Law Consolidation Act (SA) s 50(1); Evidence Act 1929 (SA) ss 29C, 34CB; Summary Offences Act (SA) s 75, referred to. R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68; JGS v The Queen (2000) 206 CLR 161; Crampton v The Queen (2000) 206 CLR 161; Cruise v The King [2025] SASCA 59; Donaldson v Broomby [1982] 60 FLR 124; R v Szach (1980) 23 SASR 504; Bunning v Cross (1978) 141 CLR 54, considered. -- 1 of 21 -- -- 2 of 21 -- R v ATTWELL [2026] SADC 21 1 David Attwell is charged with one count of Sexual Abuse of a Child.1 It is alleged that between December 2004 and March 2010 at two addresses he maintained an unlawful sexual relationship with a child who I will refer to in these reasons as Louise. At the time of the alleged offending, the accused was married to Louise’s paternal grandmother. 2 It is alleged that the accused spent large amounts of time, including overnight stays, at Louise’s family home at Vida Avenue, Redwood Park. On some of those occasions he slept in Louise’s bed, and while she was asleep or pretending to be asleep, he touched her genitals with his fingers. It is alleged that on one occasion he used his penis to touch Louise’s genital area and attempted to penetrate her vagina. It is also alleged that on one occasion when Louise had a sleep over at the accused’s home at Church Street, Tea Tree Gully, he used the opportunity to touch her genitals as she slept on a couch in the living room. 3 The alleged abuse ended when Louise’s Mother Mrs J left Louise’s Father, Mr Z, taking the five children with her. Thereafter Louise had limited, if any contact with her Father or the accused. 4 Louise made a complaint to a friend when she was in her first year of university, over ten years after the alleged abuse. Preliminary Directions 5 In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:2 It is not self-evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. (References omitted) 6 With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter. 1 Criminal Law Consolidation Act 1935 (SA) section 50(1). 2 R v Winner (1995) 79 A Crim R 528 at 530-531, cited in R v Keyte (2000) 78 SASR 68 at [54]. -- 3 of 21 -- [2026] SADC 21 2 Presumption of Innocence and Right to Silence 7 The accused has the presumption of innocence in his favour. The elements of the offence must be proved beyond a reasonable doubt, and the accused does not need to prove anything. The elements on any charge cannot be proved unless the relevant evidence proves the elements to the requisite standard. 8 The accused did not give evidence in this matter. I draw no inference against him for that. Elements of the Offence 9 The offence of Sexual Abuse of a Child has four elements: 1. The accused knowingly maintained a relationship with Louise. 2. In the course of that relationship, the accused engaged in two or more unlawful sexual acts with Louise. 3. Louise was a child during the period of the relationship. 4. The accused was an adult during the period of the relationship. 10 The only element genuinely in dispute during the trial was element 2. Louise’s date of birth was proved by agreed fact which established that she was born in 1997, and was aged between 7 and 13 years of age during the period charged. The accused’s date of birth was also proved by agreed fact. He was born in 1952 and was aged between 52 and 57 years during the period charged.3 11 The accused was Louise’s step-grandfather and during the charged period lived close to her family home. There was no dispute that he maintained a relationship with Louise during the charged period. Special Arrangements for Witnesses 12 Louise gave evidence over two days. She gave evidence from outside the courtroom and it was transmitted to the courtroom by closed circuit television. She was accompanied by a court companion and the court was closed during her evidence. 13 I direct myself in respect to those arrangements that I must treat the evidence the same way as any other kind of evidence. I must not allow it to influence the weight I give the evidence. I remind myself that the procedures say absolutely nothing about the accused, and I have drawn no inference against him from the fact the evidence was given with those special arrangements. 14 Louise’s Mother Mrs J, Louise’s sister Bella, and Louise’s university friend Ms Bott each gave evidence via audio-visual link from Queensland for reasons of 3 P3, Agreed Facts 1 and 2. -- 4 of 21 -- [2026] SADC 21 3 convenience. That circumstance is irrelevant to my assessment of the evidence given by each of them. Background Relationships and Circumstances 15 Many of the background circumstances and relationships were not in issue in this trial. It is useful to set out those background matters before discussing the issues in contention. 16 Louise is the third of five children born to Mr Z and Mrs J. Mr Z and Mrs J were married in 1996 and separated in about 2009. Five children were born during the relationship (in order from oldest born in 1995 to youngest born in 2000): Vincent, Toby, Louise, Xavier and Bella.4 17 The family lived at various addresses, but from a date between 13 December 2004 and early 2006 the family moved into a house at 12 Vida Avenue Redwood Park. The house was owned by the accused and his wife.5 The home at Vida Avenue had six bedrooms, one occupied by Mr Z and Mrs J and the five children each had their own bedroom.6 18 Mr Z was not employed throughout the charged period. He had previously worked as a stevedore but suffered a work accident and was thereafter at home on a full-time basis.7 Mrs J worked outside the home full-time. She travelled to the city centre five days per week to work. In July 2007 Mrs J enlisted in the Air Force Reserves, a commitment which took her away from home on some weekends, and for a fortnight for training in November 2007.8 Mrs J also enrolled in a law degree at university which required her to attend lectures on two nights per week. Mrs J was not certain which years she was attending university, although it was before she joined the Air Force Reserves in 2007 and after she moved to Vida Avenue (between late 2004 and early 2006). On the nights that she attended university lectures Mrs J would not arrive home until between 7 pm and 9 pm.9 19 During the charged period the accused and his wife Christina Attwell lived at Church Street Tea Tree Gully. This house was 3.6 kilometres by road from Louise’s home at Redwood Park.10 Mrs Attwell worked in the city and would sometimes meet Mrs J for lunch, or they would get a bus home together after work.11 20 The relationship between Mr Z and Mrs J ended in 2009 and their divorce was finalised in 2011. Louise’s recollection was that she was in her final year of 4 All pseudonyms. 5 P3, Agreed Fact 3 proves that 12 Vida Avenue Redwood Park was transferred to the ownership of the accused and his wife on 13 December 2004. 6 P1 House plan. 7 TS 198. 8 TS 183. 9 TS 185. 10 P3, Agreed Fact 4. 11 TS 186, 196-197. -- 5 of 21 -- [2026] SADC 21 4 primary school when she moved out of the Vida Street house with her mother and the other children. Louise ceased contact with her father Mr Z very soon after the separation. Contact with the accused ceased at about the same time.12 21 Louise and her family lived at a number of addresses, including a period of time in England. She completed her high schooling in Brisbane and attended university at Griffith University on the Gold Coast. Louise’s Evidence 22 As there were no witnesses to the sexual acts alleged, proof of element 2, that the accused committed two or more sexual acts against Louise in the course of the relationship, depends on me accepting Louise’s evidence as credible and reliable on the elements of the offence beyond a reasonable doubt. 23 Louise was 28 years of age at the time she gave her evidence. She no longer resides in Australia and returned to this country to give evidence in the trial. She was a careful and thoughtful witness. She was able to give detailed evidence of relevant events and experiences which were tied to facts and sensations which I would expect to be important to a child. She was unshaken in cross examination. She demonstrated a capacity to identify when she could not remember and indicate where her memory was not clear. I was impressed by her intelligence, thoughtfulness and the detail of the memories she was able to access. 24 Louise prepared a detailed mud map of the layout and use of the rooms in the family home at Vida Avenue.13 She described a large bed that she slept in which Mr Z built for her with wood and velvet material. The bed was larger than a single bed and sat against the wall on one side of the room. The room also contained a dresser, a chair and a small cage for a pet python.14 To sleep she wore her school uniform or whatever she had been wearing during the day, and sometimes pyjamas consisting of shorts and a t-shirt.15 25 Louise described Mrs J, her mother, as frequently absent from the family home during the time they were living at Vida Avenue. She did not have a close relationship with her mother, and “did not know her very well”.16 It was typical that her mother would arrive home after she went to bed. Louise said Mr Z, her father, was often at home but was not very attentive. She and her siblings would sometimes be left to walk home from school if he forgot to collect them, and cooking and cleaning were not his forte.17 Her memory was that he spent much of his time on his computer, eating salt and vinegar chips, smoking and playing videogames.18 12 TS 104. 13 P1. 14 P2. 15 TS 102. 16 TS 106. 17 TS 106. 18 TS 106. -- 6 of 21 -- [2026] SADC 21 5 26 Louise described the presence of the accused and Mrs Attwell in their house in the following way:19 [W]hen we get home from school, my Dad would go back on his computer. Sometimes Christina and David would arrive. If they brought dinner it would be chips and bread and we would have dinner together and then the kids would go back to running around the house and playing together while Christina and David sat at the kitchen table. David always sat in the same place. So the second you walk in the dining area, he would be to your right at the table at the end of the table, and then we would normally just keep playing with each other until we went to bed…..so they wouldn’t be there during the day. It was rare that they were just with [Mr Z] during the day. They would typically come over after we had gotten home from school. So, yeah, they would normally show up when we were home. 27 Louise recalled that Mrs Attwell would often leave when Mrs J arrived home, as they did not get along with one another.20 28 The accused had a distinctive smell about him because he consistently smoked a certain brand of tobacco which he would smoke by rolling his own cigarettes. When he sat at the kitchen table he would drink a brown alcoholic liquid, sometimes straight and sometimes mixed with Coke. He had the bottle for the alcohol and a bottle of Coke on the table alongside where he was sitting.21 29 Louise recalled that on occasion the accused would offer her a drink of the mixed Coke and alcohol out of his glass when no-one was watching.22 That would upset her stomach and sometimes made her feel light-headed. She said he offered this only when neither of her parents were around.23 30 Louise recalled one occasion at the accused’s house when he had shared alcohol with her while Mrs Attwell was outside the house in the garden.24 She agreed in cross examination that when she was first interviewed by the police she only mentioned that she had been given alcohol at Vida Street and had failed to mention alcohol being supplied to her at the accused’s house.25 Sexual Acts at Vida Street 31 Before bedtime Mrs Attwell would frequently leave, and the accused would remain behind. Sometimes both would remain at Vida Street. Louise recalled occasions when she would wake up during the night, or the following morning, with the accused in her bed with her.26 On the occasions when Louise woke during 19 TS 107. 20 TS 108-109. 21 TS 110. 22 TS 116. 23 TS 145. 24 TS 148. 25 TS 150-151. 26 TS 117. -- 7 of 21 -- [2026] SADC 21 6 the night, it was dark inside the room. Sometimes there was some early morning light coming in the window to her room.27 32 Commonly, when she woke with the accused in her bed, he would be lying behind her with his arm reaching over her to touch her genital area, including penetrating her vagina with his finger or fingers.28 He would have positioned himself on the side of her bed which was against the wall, which required him to climb over her while she sleeping. On the occasions when she woke during the night and it was dark she knew it was the accused because of his distinctive cigarette smell and the feel of his rough hands.29 33 Louise described the accused’s actions when he touched her genitals and penetrated her vagina. She sometimes heard the accused moaning in her ear, or breathing heavily behind her head. On occasion she felt his erection on her back between his hip bones.30 34 Louise said behaviour of this kind was a “semi-regular occurrence”. She said she would not always be awake when it occurred. On some mornings when she woke to find the accused in bed with her, she felt pain in her vagina, and a stinging feeling when she urinated. Sometimes there would be spots of blood mixed with a light coloured mucous coming from her vagina. She had not yet begun to menstruate when she made these observations.31 On some occasions when the accused stayed in her bed she woke up in the morning missing clothing from the bottom part of her body.32 35 Louise inferred from her observations that on those occasions the accused had touched or penetrated her genitals but she had not woken from sleep. I do not infer from those circumstances, even in combination, that the accused had in fact committed an act of sexual abuse during the previous night. I have not used the evidence of those circumstances to so infer, but have used it as circumstantial evidence which is relevant to the overall assessment of the plausibility of the account of sexual abuse over time that she described. 36 On the occasions when she woke from sleep to find the accused touching her, she pretended to remain asleep. At no time did she do anything to let the accused know that she had woken up. 37 Louise recalled a single occasion when she woke to the accused doing something different to his usual pattern. On this occasion it was dark but she could smell the accused and feel the hair on his chest. The accused was using his hand to hold his penis and rub it against her genital area in a back-and-forth motion. His 27 TS 118. 28 TS 118. 29 TS 119. 30 TS 120. 31 TS 122. 32 TS 126. -- 8 of 21 -- [2026] SADC 21 7 penis felt hard, but “a little squishy”.33 He attempted to push his penis inside her vagina, but succeeded only in getting the tip beyond the labia majora. She could hear the accused moaning behind her.34 Her legs were not fully open, but she recalled they were parted slightly. 38 Louise said that the accused never spoke to her during the sexual acts or about the sexual acts. She was never asked to keep his behaviour a secret.35 Sexual Acts at Church Street 39 Louise gave evidence about times she, alone and with her family, visited the accused and Mrs Attwell at his house at Church Street. She recalled she would visit with her siblings and parents during the daytime, and there were times that she or her older brother Vincent were left there to sleep-over. The sleep-overs were only ever with one child at a time.36 40 Because the house was cluttered (commonly described as ‘hoarded’), Louise slept on a couch in the lounge room during sleep-overs. The accused’s bedroom was cluttered with goods over one side of the bed, but Mrs Attwell would sometimes sleep on the other side of the bed. Other times Mrs Attwell would sleep on a couch in the lounge. The accused slept on the couch in the loungeroom next to Louise.37 Louise had a clear recollection of one sleep-over at the accused’s house. She said that the accused touched her genital area with his hand during the sleep-over. The Accused in Bella’s Room 41 Louise gave evidence of an occasion when she argued with the accused. She had come to not like the accused touching her in bed at night, and on several occasions she told him that she did not love him and he was not her real grandfather.38 Prior to that, Louise considered that she had a close relationship with the accused. She recalled frequently sitting in his lap. He was, in her words “easily one of my favourite people”.39 42 On one of the occasions when she told the accused she did not love him, one or both of her parents told her off, and required her to apologise and kiss his cheek. She did not make the statement as often thereafter, as she did not like to get into trouble.40 33 TS 122. 34 TS 123-124. 35 TS 153. 36 TS 127. 37 TS 127. 38 TS 128, TS 146. 39 TS 146. 40 TS 147-148. -- 9 of 21 -- [2026] SADC 21 8 43 On one of these occasions she told the accused that because she did not love him she did not want him staying in her bed.41 Louise said that on telling the accused this, she saw that he went down the hallway and into her sister Bella’s room. This was during the evening, but it was not yet dark outside. When the accused walked into Bella’s room, Bella was outside her room in the hallway area and she walked into the room with him.42 He did not come into Louise’s room that night. Bella’s evidence of the accused’s behaviour. 44 During her evidence Bella accepted that she did not have a comprehensive memory of the time that the family lived at Vida Street.43 She recalled that the accused and Mrs Attwell attended the house perhaps once a fortnight or a little more.44 She had a single bed in her own room that she slept in. 45 Bella had two memories of the accused being in the single bed with her at nighttime. She could not be certain if the two memories related to the same night or two different nights.45 The first memory is that she woke up to the accused climbing over her as she lay on her back. She felt his arm over her, and his leg “getting over” her.46 She closed her eyes and went back to sleep. 46 Her second memory was of waking in her bed, facing the wall, with the accused behind her, with his arm across her on top of the blanket. She described his position as ‘spooning her’. On each occasion she recognised it was the accused from his distinctive smell.47 47 The evidence of the accused being in Bella’s bed was subject to an application to exclude the evidence. I allowed the evidence on the basis that it was potentially relevant to two issues: to provide circumstantial support to Louise’s account that the accused went into Bella’s room on the occasion when she said he could not sleep in her bed; and/or to rebut any suggestion that the accused would not have been able to sleep in one of the girls’ beds because of the nature of the supervision within the household. As the evidence emerged, Bella’s account is not consistent with Louise’s evidence of the time of day or circumstances in which he entered her room. I do not use Bella’s evidence to provide circumstantial support to Louise’s evidence on this topic. Secondly, no submission was made or evidence led to support a submission that the level of household supervision made it impossible for the accused to sleep in one of the girls’ beds. In those circumstances I do not consider the evidence about the accused being in Bella’s bed has any relevance, and I disregard it. 41 TS 146. 42 TS 160. 43 TS 203-204. 44 TS 204. 45 TS 205-206. 46 TS 205. 47 TS 206-207. -- 10 of 21 -- [2026] SADC 21 9 Evidence of Opportunity 48 Louise’s evidence was that the accused only ever committed acts of sexual abuse during the night when he was sleeping over at the family home, or when she slept at his home.48 Her recollection was that typically Mrs Attwell would leave Vida Street after her mother arrived home, leaving the accused to sleep overnight.49 She said there were occasions when Mrs Attwell also stayed the night, sleeping on the couch, but that was not common.50 Sometimes the accused would sleep over after he had visited the house alone, and sometimes because Mrs Attwell had gone home.51 49 Louise said that when the accused slept in her bed, when she woke in the morning she would put clothes on if necessary, and go out of her room leaving the accused in her bed.52 His presence in her bed, she confirmed, would have been obvious to her parents if they saw him the next morning.53 Louise said she did not tell anyone specifically about him being in her bed because she thought that it was normal, and she considered that it was common knowledge. Her evidence was that the fact “was known”.54 50 Bella, Louise’s sister, also gave evidence about frequency of the accused’s visits to the house. Her evidence was, initially, that she recalled him being at their house “often” and he stayed overnight on at least the occasion when she was aware of him in her bed.55 In cross examination Bella agreed that when she spoke to police about the matter she had told them that the accused was not at Vida Street very often, but that the family would mostly visit the house at Church Street. In evidence she agreed that what she told the police is the truth of the matter.56 51 Louise’s Mother Mrs J was asked about the frequency and pattern of visits by the accused and his wife to the house at Vida Street. Mrs J accepted that she was frequently not present for her children, and pursued other commitments such as the Air Force Reserves and university study to avoid spending too much time at home. Her marriage was not a good one. 52 Mrs J said she often got the bus home from the city with Mrs Attwell who the accused would then collect from the Vida Street house. On a regular basis the couple would stay for a meal.57 She confirmed that the accused smoked roll your 48 TS 136. 49 TS 136. 50 TS 137. 51 TS 138. 52 TS 140. 53 TS 140. 54 TS 140-141. 55 TS 209. 56 TS 212. 57 TS 186. -- 11 of 21 -- [2026] SADC 21 10 own cigarettes and drank scotch either neat or mixed with coca cola.58 The accused would drink at the dinner table and would become noticeably intoxicated.59 53 Mrs J could not recall any particular occasion when the accused slept the night at Vida Street. She recalled he and Mrs Attwell would usually return home, after dinner with Mrs Attwell driving. She said the accused and Mrs Attwell slept over on rare occasions, sleeping on the lounge.60 She did not recall the accused ever staying at the house at Vida Street on his own when she was home.61 54 Mrs J was asked about the family visiting the accused’s Church Street house. She said their family would visit occasionally, but the children would not have slept over because the house was simply too cluttered, and there would be nowhere for the children to sleep.62 She could not recall Louise ever staying overnight at the accused’s house. Mrs J said she was home sleeping in her bed at Vida Street each night, except for a period when she went interstate shortly after she enlisted in the Air Force Reserves.63 Initial Complaint 55 The first person that Louise disclosed the allegations about the accused to was a university friend, Ms Grace Bott. Ms Bott and Louise were both enrolled to study psychological science at Griffith University in Queensland. Louise said that prior to her initial disclosure she had raised the general topic a few times to test the water. She disclosed the abuse for the first time in circumstances when they were discussing the television series “Game of Thrones” which contained rape scenes. In that context Louise told Ms Bott that she found watching the program re- traumatising for her, and she could not watch it because she was raped. She told Ms Bott it was her grandfather who had raped her.64 56 Ms Bott gave evidence about her recollection of the terms of the complaint. She recalled that the disclosure was made in one of the study rooms at university. Ms Bott could not recall the wording or detail, but the disclosure was to the effect that Louise’s grandfather had sexually assaulted her.65 A few years later there was a further discussion, prompted by Louise becoming upset because she thought she had seen someone at the University. On that occasion Louise told Ms Bott that her grandfather used to come into her room and abuse her.66 Ms Bott said Louise did not seem upset when she made that disclosure. 57 Louise gave evidence about why she chose those circumstances to make her first complaint. She said that it was not until she was about 16 years of age that 58 TS 188. 59 TS 189. 60 TS 190. 61 TS 190. 62 TS 191. 63 TS 192. 64 TS 132. 65 TS 171. 66 TS 172. -- 12 of 21 -- [2026] SADC 21 11 she came to understand that what the accused had done was wrong. She said that as she was growing up she thought it was normal. By the time she reached university she was struggling with what had happened and so began to express it.67 58 I remind myself that the evidence of initial complaint is not evidence of the truth of the allegation. I have considered the evidence of initial complaint as relevant only to Louise’s credibility. I have used the evidence to understand how the allegations first came to light and to assess whether Louise’s conduct is consistent with the allegations. 59 Louise was cross examined about a disclosure that she made to her mother Mrs J around Christmas 2016. Louise agreed that she had disclosed the sexual abuse to Mrs J.68 Mrs J said that Louise told her that the accused had asked her to keep the sexual abuse a secret. Louise denied that she had said that to Mrs J and denied that the accused had ever made such a request. Expert Evidence – Child Behaviour and Development 60 In assessing the weight to be given to aspects of Louise’s evidence I have had regard to evidence given by Mr Srdjan Vajdic, a clinical psychologist with experience and training in childhood behaviour and development.69 He has substantial experience as a clinical psychologist working at the Department for Child Protection, providing assessment and treatment for children who have endured trauma and abuse. By 2018 he held a position as Manager, Psychological Services which involved performing the most complex clinical work and managing other psychologists. Since 2022 Mr Vajdic has worked in private practice. His practice includes the treatment of adults and children with experience of trauma. 61 Mr Vajdic gave evidence about the development and behaviour of children who have been victims of sexual abuse. The purpose of this evidence is not to substitute for my own conclusions as the trier of fact, but to inform what weight I may give aspects of the evidence. Historically, circumstances such as a failure to make a prompt complaint may undermine the weight to be given to a child’s evidence of sexual abuse. Observations of a loving and close relationship between a child and an accused might similarly undermine the plausibility of allegations of sexual abuse. Evidence of the kind given by Mr Vajdic is presented to rebut common misconceptions about child development and behaviour in the context of sexual abuse. I have used the evidence to inform my consideration of the weight to be given to some features of the evidence. 62 Mr Vajdic’s evidence was that it is unusual for a child to disclose sexual abuse immediately, especially when abuse occurs in the context of a family setting. A child will not necessarily immediately recognise that what is happening to them is wrong. They may experience it as something that is reflective of love and 67 TS 134. 68 TS 163. 69 Admitted pursuant to the Evidence Act 1929 (SA) section 29C. -- 13 of 21 -- [2026] SADC 21 12 closeness, while at the same time finding it difficult to disclose the experience to anyone else.70 63 Where the sexual abuse occurs in the context of an established relationship, especially a caregiving relationship, the child may feel emotionally torn between their connection to the person and their own safety. Disclosure, they recognise, may also have implications for family relationships more broadly.71 64 A complaint may not come until much later in life when the child (or now adult) has a more mature understanding of how relationships work, and that what they experienced was not right.72 65 I have taken into account that there are varied reasons why an alleged victim of a sexual offence will make a complaint at a particular time to a particular person. Informed by the background evidence about child development, behaviour and sexual abuse, I do consider the circumstances and content of the complaint supports Louise’s credibility. The accused was Louise’s step-grandfather. It was apparent that Louise liked many aspects of being around the accused and did not realise until she was older that the conduct was abnormal and wrong. The fact that she did not complain at the time does not undermine the plausibility of her complaint. The circumstances of her initial complaint do support her credibility, although I note that the support is limited due to the limited detail of the context and terms of the disclosure. The Investigation 66 Louise initially reported the matter to police in Queensland where she was living. Queensland Police took statements from her sister, Bella, her mother, Mrs J, and her friend Ms Bott, then provided that material to SA Police for further action. Detective Brevet Sergeant Murdoch (B/S Murdoch) was the Investigating Officer allocated to the investigation. He received the allocation in about September 2023. 67 On 24 October 2023 B/S Murdoch attended the accused’s house at Church Street Tea Tree Gully and observed that it was cluttered with household items and cars outside. He arrested the accused and took him to the Elizabeth Police Station. The accused was interviewed, and the admissibility of that interview is considered later. 68 In cross examination B/S Murdoch was asked about the investigations that he undertook after he took conduct of the matter from Queensland Police. He agreed that through familiarising himself with the investigations already completed by Queensland Police he knew the acts were alleged to have occurred in the family home when other adults and children were home. He agreed he made 70 TS 223. 71 TS 222. 72 TS 225. -- 14 of 21 -- [2026] SADC 21 13 no attempt to speak to Mr Z, Louise’s Father, or any of Louise’s three brothers, noting her sister had already been interviewed by Queensland Police.73 69 B/S Murdoch was aware that the accused may have had a chronic fatigue syndrome at the relevant time, but made no attempt to investigate that possibility or the effect that condition might have had on his capacity to commit the offences alleged. He was aware that the accused may have been employed on an on-call basis as a mechanic with the RAA and did not investigate whether that affected his capacity to commit the offences alleged. 70 B/S Murdoch could not give the court any reason why he did not make the investigations identified. 71 The investigation conducted by B/S Murdoch was inadequate. He conducted no further investigations at all after the material was supplied to him by Queensland Police. He failed to speak with relevant witnesses who were said to have been in the house at the relevant time. Where the allegations rested so heavily on the acceptance of Louise as a witness of truth, a proper investigation about whether the accused had an opportunity to offend in the way alleged was critical. This was especially so in light of the different accounts of opportunity given by Louise and her mother in the material available to him. 72 I cannot speculate what those various witnesses might have said had they been approached. I must decide the case on the evidence that was called at trial, recognising that an accused may be at a forensic disadvantage given some of the enquiries which were not made or not made thoroughly. I have had regard to those disadvantages. Forensic Disadvantage 73 In a trial by jury, the judge is obliged to identify and direct upon any significant forensic disadvantage arising because of the passage of time between the alleged offending and the trial.74 There is no equivalent obligation in a trial by judge alone.75 However, it is appropriate to identify and comment on the circumstances of the allegations here, and the disadvantage occasioned by the passage of time. 74 Here, the allegations relate to a period of time between 2004 and 2010, involving a delay of between 15 and 21 years. In Crampton v The Queen, the High Court observed that:76 ... An accused’s defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what 73 TS 238. 74 Evidence Act, section 34CB. 75 JGS v The Queen [2020] SASCFC 48 at [146]. 76 Crampton v The Queen (2000) 206 CLR 161 at 181 ([45]). -- 15 of 21 -- [2026] SADC 21 14 the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakeable and firm voice must be given by appropriate directions. 75 These observations are apposite here. The generality of the allegations necessitated by the passage of time and the loss of memory makes it harder to defend allegations by reference to specific circumstances or potential witnesses. There are difficulties in testing allegations which lack circumstantial detail which might be identified and challenged. The delay has reduced the ability of the accused to remember relevant circumstances to deploy in testing the evidence given on the prosecution case. I have taken these considerations into account in my analysis of the evidence. I accept that the disadvantage occasioned by the delay has been magnified by the inadequate investigation which followed the matter being reported to the police. Interview with the Accused – Voir Dire Considerations 76 Prior to the start of the trial proper I heard an application made on behalf of the accused to exclude a recording of an interview between B/S Murdoch and the accused which occurred on 24 October 2023. At that time I excluded the record of interview on the basis of the unfairness discretion.77 On the facts of the matter it was also necessary to consider the exercise of the related public policy discretion. I did not deal with that issue at the time. I consider that it is appropriate and necessary for me to deal with that issue now, because although my reasoning results in the exclusion of the interview, an order which has already been made under the unfairness discretion, the nature of the conduct of the police requires that some comment be made about the exercise of the public policy discretion. 77 B/S Murdoch gave evidence on the voir dire. The recorded interview was tendered. The recording began at 7.20 pm with the police approaching the accused’s premises at Church Street Tea Tree Gully.78 The recording continued throughout the arrest of the accused and his conveyance to the Elizabeth Police Station, arriving at 7.55 pm. At no time during that period, which included the accused being arrested and conveyed to a police station, was the accused informed what he was being arrested for. The accused and his wife asked B/S Murdoch multiple times what he was being arrested for. B/S Murdoch did not tell him, but dismissed questions with assurances that the allegations would be explained in a formal interview, stating “this is not the place to do it”.79 B/S Castle, the second officer at the scene, told the accused “so we’ll be able to obviously speak to you in the car. It’s just for your privacy reasons we’re not going to go into it now”.80 78 The camera remained recording in the vehicle. Even once the accused was alone with the police officers, no further information was given to him about the 77 Voir Dire TS 64-65. 78 VDP 1; TS MFI VDP 2. 79 MFI VDP 2, lines 46, 113. 80 MFI VDP 2, lines 247, 319, 388. -- 16 of 21 -- [2026] SADC 21 15 reason for his arrest. B/S Murdoch reminded the accused of his right to silence and told him “while you’re with us we’ll ask you some questions”.81 The accused told B/S Murdoch, on the topic of whether he was prepared to answer questions, “well I’d like to get to the bottom of it to be quite honest, so I’ll do my best…cos I don’t really understand what’s going on to be quite honest. Because I class ‘criminal activity’ as a pretty serious…Alright ?”.82 B/S Murdoch did not share any information about the reason for the accused’s arrest, but rather began a series of questions which canvassed how long he had lived at Tea Tree Gully, what scotch he used to drink and how he drank the scotch, whether he smoked when he drank and what kind of cigarettes he smoked. All of those topics were clearly relevant to the allegations that B/S Murdoch was investigating, but he framed the conversation as informal chatting, introducing the topics casually and in a way that did not disclose that the answers were related to his investigation. B/S Murdoch did not tell the accused why he had been arrested, or the nature of the allegations against him, at any time during his conveyance to the police station. 79 A recording of the formal interview was also tendered.83 That interview began at 8.13 pm and was completed at 8.48 pm. At the start of the formal interview B/S Murdoch reviewed the events at the accused’s home and reminded him about his arrest rights. He further reminded him of his earlier statement about being “happy to talk about [it]”. B/S Murdoch then said:84 Alright. What I’d like to start to do is just, I guess get a bit of background about your life, which relates to what this offence is about, and then when I get to a point where I think I’ve got enough information, I’ll let you know exactly what it’s about. Does that make sense ?...Be clear, by the time you leave this room you’ll, you’ll know what the allegation is. I won’t hide anything from you.” 80 For 370 further lines B/S Murdoch questioned the accused about circumstances and life details which were central to the allegations being investigated. When the interview was almost complete, the allegation was finally disclosed:85 Q (Accused): But yeah, I mean, you are going back to the bloody sleeping arrangements. Is that something to do with this sort of? A (B/S Murdoch): Yeah it is - yeah. So, I’ll cut to the chase seeing…so, so the allegation is from [Louise]. Q [Louise]? A Yep. So [Louise] has spoken to our colleagues in Queensland cos that’s where she was at the time when she made this allegation. And so she’s alleged that: she recalls on several occasions that you’d slept in her bed cos you might’ve had too much to 81 MFI VDP 2, line 569. 82 MFI VDP 2, line 580-583. 83 VDP 3, TS MFI VDP 4. 84 MFI VDP 4, lines 41-43. 85 MFI VDP 4, lines 412-418. -- 17 of 21 -- [2026] SADC 21 16 drink or whatever and that you, she would often wake up to you touching her in the vagina area or sometimes putting your fingers inside of her vagina. So. Q Steady on. A Yeah. So you can see that’s a serious allegation. Q Oh yes. 81 B/S Murdoch accepted in evidence that at no time prior to these questions had he revealed to the accused the nature of the allegations that he was being arrested for. In respect to the failure to notify the accused at the time of his arrest at the house he said he could not think of any particular reason for that failure. He denied that his failure to do so at the house was deliberate.86 He specifically denied that he deliberately withheld the information from the accused, characterising it as an error on his part rather than an investigative strategy.87 82 In cross examination B/S Murdoch said in hindsight he should have revealed the nature of the allegations much sooner than he did, probably in the car prior to any real conversation about the allegations. He accepted that he had been trained that telling an arrested person the reason for their arrest is part of the requirement for a lawful arrest.88 He denied that his failure to do so was a deliberate strategy to improve the effectiveness of his investigation. B/S Murdoch could offer no explanation for his advice to the accused that he would let him know what the investigation was about once he got to the point that he had enough information.89 83 B/S Murdoch agreed that he had sworn an affidavit on the topic of the reason for the failure to advise the accused of the allegation on the morning of the voir dire (13 January 2026). In that affidavit he described his failure as “not a deliberate ploy, merely an oversight as to not interrupt the flow of the conversation”.90 In cross examination he clarified that what he meant was that revealing the allegations slipped his mind until the point that he described himself as “cutting to the chase”.91 He accepted that by the time he uttered those words he had obtained concessions about almost all the circumstances that were referred to in Louise’s statement.92 84 I carefully watched the two recordings and considered the evidence given by B/S Murdoch. His claim that the failure to disclose the allegations was not deliberate is irreconcilable with the things he said and did at the accused’s house, in the car, and during the formal interview. B/S Murdoch’s approach and intention crystallised in his statement at the outset of the formal interview that he intended to let the accused know what it was all about at a point where he has enough 86 VD TS 19, 35. 87 VD TS 25. 88 VD TS 34. 89 VD TS 47. 90 VD TS 48. 91 VD TS 50. 92 VD TS 52. -- 18 of 21 -- [2026] SADC 21 17 information. That is what he said his intention was, and his interview proceeded in precisely that way. I do not accept that his failure was an oversight. 85 It is clear to me from his conduct towards the accused from the time he had him in the car that he intended to obtain as much background information as he could before the accused became aware of the seriousness of his situation. He announced that as his intention early in the formal interview. I do not accept B/S Murdoch’s evidence that the failure was an oversight. I conclude that it was a deliberate strategy which placed the accused at a significant disadvantage in determining whether to answer questions or not. 86 It is well established that a precondition of the valid exercise of the power to arrest pursuant to section 75 of the Summary Offences Act is the announcement of the reason for the arrest being executed. In Cruise v The King, Kourakis CJ cited with approval the following passage from Donaldson v Broomby as the justification for the requirement:93 Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable… 87 This principle is subject to two exceptions, neither of which is applicable to the circumstances here. B/S Murdoch had every opportunity to advise the accused of the reason for his arrest. Even if he was concerned about his privacy (which I note is not among the exceptions to the rule) there was ample opportunity once in the police vehicle. The arrest of the accused in those circumstances was not valid and the accused’s arrest was not lawful. 88 There is a second principle that is important. Disclosing the basis for the arrest prior to asking questions is an important aspect of ensuring that a suspect is able to make a proper choice about whether to exercise his or her right to silence. In R v Szach, King CJ observed that:94 When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his right to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers that is appropriate to the seriousness of his position. Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated. 89 B/S Murdoch’s conduct undermined the accused’s ability to make a proper choice about exercising his right to remain silent. I am satisfied that one of the 93 [2025] SASCA 59 at [73]. 94 (1980) 23 SASR 504, 583. -- 19 of 21 -- [2026] SADC 21 18 accused’s considerations in deciding to answer questions was that he wanted to “get to the bottom of it”.95 90 The discretion to exclude the evidence of the recorded interview (in its totality) on the basis of the public policy discretion clearly arises on the basis of B/S Murdoch’s conduct. This discretion focusses on preventing the prosecution from obtaining an advantage from the use of evidence obtained through illegal or improper conduct, and the protection of the courts from the appearance that such conduct is approved. 91 A range of considerations are relevant to an assessment of whether the available discretion should be exercised in the way submitted by counsel for the accused. Among the relevant considerations is whether the conduct was an error or mistake, or a deliberate action designed to circumvent the accused’s rights. I have concluded in this matter that B/S Murdoch’s actions fall into the latter category. 92 It is relevant to consider whether the behaviour affected the cogency of the evidence. The answers given by the accused were relevant to the prosecution case and involved admissions of a number of relevant surrounding circumstances. However, cogency should not be allowed to play a significant role where the illegality or impropriety was deliberate or reckless.96 93 The approach and strategy of B/S Murdoch was improper. By his behaviour he achieved the co-operation of the accused in making admissions against his interest in circumstances that he should never have been placed in. The court cannot give its imprimatur to the conduct by permitting the evidence to be led. 94 I would therefore exclude the interview/s on the basis of the public policy discretion. Analysis and Conclusions 95 As I have noted earlier, Louise was an impressive witness. I found her evidence compelling and credible. 96 Counsel for the accused submitted that a ‘solid obstacle’ to conviction was the evidence from Mrs J, and, to a lesser extent, Bella, about opportunity. Louise’s evidence was that each occasion of sexual assault was associated with the accused sleeping overnight at Vida Street, or her sleeping overnight at Church Street. It only ever occurred during the night when the accused was in her bed, or on one occasion on the sofa at Church Street. 97 Mrs J’s evidence was that she could not recall any occasion when the accused stayed at the Vida Street house on his own after Mrs Attwell had returned home. 95 MFI VDP 2, line 580-583. 96 Bunning v Cross (1978) 141 CLR 54 at 79. -- 20 of 21 -- [2026] SADC 21 19 Her evidence was that the accused would stay with his wife on rare occasions, and on those occasions they slept in the lounge. 98 Her evidence is in contrast to Louise’s evidence that the accused frequently slept overnight on his own, and that it was common knowledge that he slept overnight in her bedroom. 99 My ability to assess or resolve the inconsistency between the evidence of Louise and Mrs J is undermined by the absence of evidence from Mr Z, or Louise’s three brothers, all of whom lived in the house during the relevant period. 100 I remind myself that the standard of proof in a criminal trial is an exacting one, and requires satisfaction of each element of the offence beyond a reasonable doubt. It is not enough that I suspect that the accused is guilty, or that I reach a state of satisfaction that he is probably guilty. In this case, the evidence of Mrs J which undermined Louise’s evidence about opportunity creates a doubt which cannot be resolved by reference to the impressive and detailed nature of Louise’s evidence. In the circumstances, I am unable to be satisfied beyond a reasonable doubt that the accused engaged in two or more unlawful sexual acts with Louise in the course of their relationship. 101 I therefore find the accused not guilty. -- 21 of 21 --