[2026] SADC 25

Prosecution: R Counsel: MS A ZIMMERMAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: R, J Counsel: MS J ABBEY KC - Solicitor: MANGAN EY & ASSOCIATES Hearing Date/s: 04/03/2026 to 06/03/2026, 12/03/2026 File No/s: DCCRM-25-040541 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 R, J Criminal Trial by Judge Alone [2026] SADC 25 Reasons for the Verdict of his Honour Auxiliary Judge Barrett 24 March 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The accused is charged with Sexual Abuse of a Child, namely his daughter, when she was aged between six and eight. The accused gave evidence denying the charge. The cases for the prosecution and defence had about each of them unusual, and at times, unlikely aspects, such that there can be no certainty where the truth lies. Held: The accused is not guilty of Sexual Abuse of a Child. Evidence Act 1929 (SA) ss 9, 13BA, 34M, 34P, 34R, referred to. R v TLC [2025] SADC 121; Singleton v Police [2009] SASC 41; R v C,CA [2013] SASCFC 137; Eddy (a pseudonym) v The King [2024] SASCA 115; R v Jones [2018] SASCFC 80; Kendall v The King [2024] SASCA 54; Robertson v Samuels (1973) 4 SASR 465; Liberato v The Queen (1985) 159 CLR 507; R v Lavery [2013] SASCFC 46; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242, considered. -- 1 of 29 -- -- 2 of 29 -- R v R, J [2026] SADC 25 [Criminal] 1 The accused is charged with Sexual Abuse of a Child. It is alleged that he committed five sorts of unlawful sexual acts against his daughter when she was aged between six and eight, four of the acts being committed on more than one occasion and the fifth on only one occasion. 2 I reproduce the Information as it was amended during the trial. I will discuss later the circumstances of the second of the two amendments. The first amendment was made by consent at the beginning of the trial. The second was made during the trial but was opposed by the defence. The Information reads as follows: Count One: Offence Details: Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935) Particulars [JSR] between the 19th day of August 2022 and the 18th day of November 2024 at Brooklyn Park, maintained an unlawful sexual relationship with [ABR], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: a) causing her to expose her vagina on more than one occasion; b) causing her to expose her buttocks on more than one occasion; c) causing her to dance provocatively without clothes on, on more than one occasion; d) causing her to dance or move with a bottle between her legs with and without clothes on more than one occasion; and e) causing her to expose her belly on one occasion. Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016 Course of the trial 3 Prosecution called the complainant to give evidence following the playing of her two prescribed interviews with the police. The prosecution also called the complainant’s grandmother, RB and the officer in charge, Brevet Sergeant Joel Davie. There were agreed facts. 4 The accused gave evidence. -- 3 of 29 -- [2026] SADC 25 2 Overview 5 The background to the allegations of the charged offending is that during the time of the alleged acts, the complainant was aged between six and eight and was primarily living with her father, his partner and his partner’s two children. That arrangement was the result of contested Family Court proceedings between the complainant’s parents and her grandmother. The final Family Court orders were made by consent in 2023. 6 The offending is alleged to have occurred between August 2022 and November 2024. The complainant had limited contact with her mother because her mother suffered from drug addictions. 7 The complainant’s grandmother, RB, had primary care of the complainant until she was aged about four and a half (2020-2021). After 2023, the complainant stayed with her grandmother every second weekend. 8 The prosecution’s case is that between the charged dates, the accused committed four of the particularised unlawful sexual acts against the complainant on more than one occasion and the fifth act on only one occasion. The complainant complained about the offending to her grandmother on a weekend when she was staying with her. Her grandmother took her to the police two days later. 9 The defence case is that the accused committed none of the charged acts. Prescribed interviews 10 The complainant was aged nine and half at the time of the trial. Her evidence- in-chief was presented partly by way of two prescribed interviews pursuant to s 13BA of the Evidence Act and partly by brief sworn evidence in court. The complainant was cross-examined in court. 11 The interviews were conducted by Brevet Sergeant Mark O’Driscoll on 18 November 2024 when she was aged eight years and three months and on 11 June 2025 when the complainant was aged eight years and 10 months. The interviews were recorded on USBs tendered as Exhibits P1 and P3 with transcripts of each being marked MFI P1A and MFI P3A respectively. The interviews were tendered pursuant to s 13BA. Defence counsel, Ms Abbey KC, did not suggest the complainant was not capable of giving unsworn evidence. I was satisfied that the requirements for the admission of the interviews as set out in s 9 of the Evidence Act had been satisfied. At the beginning of each interview, Brevet Sergeant O’Driscoll elicited from the complainant that she knew the difference between the truth and a lie.1 He told the complainant that it was important she should only tell him the truth2 and the complainant undertook to tell the truth.3 1 Section 9 sub-s 2(i). 2 Sub-section 2(ii). 3 Sub-section 2(b). -- 4 of 29 -- [2026] SADC 25 3 The complainant’s evidence in court 12 Following the playing of the two interviews Ms Zimmerman for the prosecution, asserted, and Ms Abbey for the defence, acknowledged that the presumption that the complainant was capable of giving sworn evidence in court had not been displaced.4 I found that the complainant was capable of giving sworn evidence. 13 Ms Zimmerman handed up a list of topics on which she sought to examine the complainant in-chief. None was objected to by the defence. Pursuant to s 13BA(5), I gave leave to examine on each topic. I was satisfied that it was in the interests of justice to give such leave. The complainant was examined consistently with the list. 14 At the conclusion of examination-in-chief, Ms Abbey orally listed the topics on which she sought to cross-examine the complainant. None was opposed by the prosecution. I gave leave to cross-examine on each topic. The complainant was cross-examined consistently with the list. Interview on 18 November 2024 – P1 and MFI P1A 15 In this interview the complainant said that her father had been telling her ‘to do inappropriate stuff’.5 She said it happened every Wednesday and Friday.6 She said he made her put a drink bottle where her vagina (‘fanny’) was and then pretend that she had a penis (‘what you have’). He also told her to put the bottle in her pants. She said when his partner came home, he started yelling at her, pretending he had not told her to do such things.7 16 Separately, the complainant said the accused’s partner chased her around the yard with a broom causing her to run inside and be locked in her room.8 She said her father told her ‘to do an unappropriate [sic] dance, like twerking’.9 She said he threatened her that if she did not do it she would be grounded ‘for a whole month or a year’.10 17 The complainant said she did not like what she was told to do and she wanted to live with her grandmother.11 She said she did not feel safe with her father.12 4 Section 9(i) of the Evidence Act. 5 MFI P1A at [621]. 6 MFI P1A at [632]. 7 MFI P1A at [641]. 8 MFI P1A at [653]. 9 MFI P1A at [669]. 10 MFI P1A at [673]. 11 MFI P1A at [679]. 12 MFI P1A at [683]. -- 5 of 29 -- [2026] SADC 25 4 18 At various stages in both interviews the complainant said, and demonstrated, that the accused made her part the lips of her vagina and her buttocks.13 That happened every second weekend.14 19 The complainant said that her father told her that if she told anyone about what was going on she would ‘be punished for the rest of your life’.15 20 She said she could not remember the last time this behaviour occurred16 but she said that the first time was the weekend after she turned six.17 21 She said the behaviour occurred in her bedroom or her father’s.18 22 She said she thought the accused recorded what she was doing, although she was ‘not that sure’.19 She saw him using his phone.20 23 The complainant said that after she did the inappropriate things, the accused would get her ‘ready for dress and then locks me in my room’.21 She said she did not trust her father anymore.22 She feels much more safe with her grandmother.23 24 The complainant said that when her father got her to do the inappropriate things, he would get her to undress – ‘I would just be nude … naked’.24 25 She said sometimes her father says ‘shut the F [sic] up’.25 He says that ‘when he has enough of me doing it’.26 26 In relation to the dancing, the complainant said that the accused told her ‘to twerk and stuff and like pull my t-shirt up and go like that’.27 27 At Brevet Sergeant O’Driscoll’s invitation the complainant drew plans of her bedroom and her father’s.28 13 MFI P1A at [715], [745] and [776]. 14 MFI P1A at [749]. 15 MFI P1A at [720]. 16 MFI P1A at [757]. 17 MFI P1A at [762]. 18 MFI P1A at [821]. 19 MFI P1A at [827]. 20 MFI P1A at [831]. 21 MFI P1A at [856]. 22 MFI P1A at [861]. 23 MFI P1A at [865]. 24 MFI P1A at [886]. 25 MFI P1A at [996]. 26 MFI P1A at [1000]. 27 MFI P1A at [1051]. 28 Exhibit P2. -- 6 of 29 -- [2026] SADC 25 5 28 The complainant said that the first person she told about what was going on was her grandmother.29 She told her ‘all the stuff I told you’30 and then she told her mother.31 She told her grandmother the preceding Saturday. Interview on 11 June 2025 – P3 and MFI P3A 29 Before Brevet Sergeant O’Driscoll embarked upon the topic of the complainant’s allegations about her father the complainant repeated what she had said in the first interview, that the accused’s partner had chased her around the yard with a broom. She added that his partner had thrown her ‘across the room with my ear, like that’.32 30 She repeated the allegations about being told to put her drink bottle near her vagina, inside and outside her pants, so as to simulate a penis.33 31 She said that when that happened and the accused’s partner, K, came home, K would tell her to ‘get that off your vagina’.34 32 She said that the accused would smack her ‘butt’ and her head.35 He would smack her butt if she did not do as he told her to.36 33 Brevet Sergeant O’Driscoll asked the complainant to demonstrate how she would hold the bottle. When asked what her father would say when he told her to do that, she said ‘umm, I think, umm, I don’t really remember, but umm I probably, I’m 90% sure, umm, that he would say if you don’t do it, that he would smack my butt really hard or he would smack my hand really hard, or he would umm, yeh’.37 34 The complainant said that one night she had a bad dream. She woke up her father and K. Her father took her into the front yard and left her outside for ‘like 30 minutes … or 20 minutes or 10 … or 5’.38 Sometimes they would lock her in her room, although she had no idea how they did that because there was no key to it.39 35 The complainant said that the incident with the bottle happened ‘I think it once, or two, or umm I think it was two times, or five’40 and she added ‘like, each week’.41 She added further, it happened on ‘Thursday, Friday’.42 It went for 29 MFI P1A at [1298]. 30 MFI P1A at [1302] and [1324]. 31 MFI P1A at [1306]. 32 MFI P3A at [1057]. 33 MFI P3A at [1078]-[1086]. 34 MFI P3A at [1148]. 35 MFI P3A at [1178]-[1182] and [1253]. 36 MFI P3A at [1266]. 37 MFI P3A at [1456]. 38 MFI P3A at [1509]-[1517]. 39 MFI P3A at [1534]. 40 MFI P3A at [1597]. 41 MFI P3A at [1601]. 42 MFI P3A at [1613]. -- 7 of 29 -- [2026] SADC 25 6 15 weeks.43 When specifically asked when it happened in a week, she replied ‘umm, like I think one day of the week’.44 36 The complainant could not remember what her father was doing when she performed the acts.45 It happened in the dining area.46 He had his clothes on.47 37 The complainant said sometimes when she had a bad dream, ‘they’ would film her ‘not going to bed, and crying, because I’m scared’.48 The film would be sent to her teacher.49 38 The complainant said that sometimes she would ask her father ‘to like wipe my butt, or to like, but I wipe my butt now’.50 ‘Last year’ her father put cream on her butt ‘because it would be red’.51 39 The complainant said that when she was twerking she sometimes had her clothes off and sometimes on.52 40 The complainant said that the opening of her vagina and butt occurred mostly on her bed or the adults’ bed.53 41 The complainant said there was one occasion when she was hit on her hands. She slammed a door. Her father rushed in and gave her lots of smacks on the butt.54 The complainant’s examination-in-chief 42 I will summarise those parts of the complainant’s examination-in-chief which added to what she had said in the prescribed interviews. 43 The complainant said that when she was told by her father to put the bottle against her vagina inside her pants, it was outside her knickers.55 She said the drink bottle was a sports drink bottle. She thought it might have been pink.56 44 The complainant said that the cream was put on when she was ‘younger, younger’, ‘I think like four or three’.57 43 MFI P3A at [1637]. 44 MFI P3A at [1641]. 45 MFI P3A at [1663]. 46 MFI P3A at [1688]. 47 MFI P3A at [1758]. 48 MFI P3A at [1788]. 49 MFI P3A at [1796]. 50 MFI P3A at [1859]. 51 MFI P3A at [1864]. 52 MFI P3A at [2177]. 53 MFI P3A at [2492]. 54 MFI P3A at [2776]. 55 T16. 56 T18. 57 T21. -- 8 of 29 -- [2026] SADC 25 7 45 The complainant was asked to explain what she meant by ‘twerking’. She replied ‘when we, so when I say that it means like an inappropriate – when it’s not a type of dance what I should be doing at my age, when I’m shaking my butt’.58 She demonstrated what she meant. I would describe what she described as a thrusting movement of her pelvis. The complainant was asked about the accused filming her. She said that if she had a nightmare and went to the adults’ bedroom, her father would tell her to go back to her own bed. He would say he was going to film her showing her not being asleep and crying in her bed. He would say he was going to send the film to her teacher. That happened when she was in Year 1 or 2. That happened more than once.59 46 The complainant was asked about the circumstances of her initial complaint to her grandmother. She said that on the Saturday before she went to the police, her grandmother got her a loft bed she had been asking for. On the bed she posed for photos her grandmother was proposing to take. She said she ‘wasn’t posing like naturally’ and her grandmother asked her who taught her those poses. She replied ‘Dad’. She then started to tell her grandmother ‘about all the stuff’. The following day, her mother came and she told both her and her grandmother again what had been going on. She said she told her grandmother about the drink bottle incidents, the parting of her vagina and buttocks and the twerking – ‘all the stuff what he has done to me, what was unappropriate [sic]’. She said she knew it was wrong because her father told her not to tell anyone. If she did, he would punish her. She did not remember how or when she first heard the word ‘unappropriate’.60 47 Ms Zimmerman asked the complainant to watch a small portion of the video of the first interview at .35:19 where the complainant demonstrated how she was asked to lift up her shirt. When asked what part of her body was then showing, she said ‘maybe my belly’.61 Cros-examination of the complainant 48 Ms Abbey asked the complainant questions about discussions she had with her grandmother about her allegations between making her complainant on the Saturday and going to the police on the Monday. The complainant could not remember how many conversations she had had or what was said. She agreed she was happy to receive the loft bed on the Saturday. Her grandmother had bought it for her. She had a sleepover at her grandmother's every second week. She had an extra night with her grandmother so she could enjoy her loft bed a bit.62 49 Ms Abbey asked the complainant questions which elicited answers suggesting there were aspects of her staying at her grandmother's which were preferable to staying with her father. If she had nightmares, her grandmother would 58 T22. 59 T23-24. 60 T27-28. 61 T28. 62 T38-39. -- 9 of 29 -- [2026] SADC 25 8 cuddle her in her bed, whereas at her father's, she would get a quick cuddle before she was sent back to her own bed.63 50 Ms Abbey revisited the topic of conversations the complainant had with her grandmother between the disclosures on the Saturday and going to the police on the Monday. She thought there were only two, one with her grandmother on her own when she made the initial complaint and one when she told her mother and grandmother together.64 51 Ms Abbey asked questions directed at the complainant’s hopes or expectations of staying at her grandmother’s after going to the police. It appears from the grandmother’s evidence that at that time there were Family Court orders granting the accused custody of the complainant and orders that she could stay with her grandmother each alternate weekend. The complainant effectively agreed that she preferred to stay at her grandmother’s because it was safe and she did not want the accused to continue what he was doing.65 52 The complainant was asked questions about having help wiping her bottom after defecating. She said she had difficulty doing that herself and she agreed that she had had to sometimes have cream applied to her bottom. She thought that had stopped when aged six, although when pressed if it could have been when she was ‘just seven’, she agreed.66 53 The complainant agreed with further propositions about her favouring staying with her grandmother rather than with her father. The former was more fun. She could have her dinner in bed rather than at the table.67 She did not like playing tennis that much but she had to at her father’s. 54 The complainant agreed that she went to dance classes. She enjoyed dancing. She would dance around at her father’s place. Sometimes the accused or his partner would tell her to calm down and stop moving around.68 55 The complainant was questioned about an allegation she had made against A, the son of her father’s partner. He was aged about 14 when she was about to move in with them.69 56 It was first put to her that before she moved in, she had said something about A taking nude photographs of her. She agreed.70 63 T40. 64 T46. 65 T47. 66 T52. 67 T54. 68 T59. 69 T60-63. 70 T61.19. -- 10 of 29 -- [2026] SADC 25 9 57 When it was put to her that that was not true, she said it was. When pressed further on the point, she said she did not remember telling adults about that.71 58 The complainant was questioned about her allegation that K had once thrown her across the room by her ear. She said it occurred when she had got upset and had slammed a door.72 She elaborated on her allegation that K had chased her with a broom.73 59 The complainant maintained her allegation that the accused had locked her out of the house. She thought she was seven or eight at the time. It was K’s idea.74 60 The complainant was questioned about twerking. She said that she only danced in that way when told to by her father. She never liked twerking. It was ‘unappropriate [sic] and it was not for my age’. When asked how she learnt how to do it, she said ‘… I think my Dad showed me or something like that. I think so’.75 61 Ms Abbey tendered a USB, Exhibit P4, which showed three segments of footage. Two showed the complainant dancing with friends in the accused’s house. A third showed students dancing at a school disco. Ms Abbey drew the complainant’s attention to a particular girl at the disco who at one stage appeared to be twerking. The complainant did not think that was her.76 It was not put to her that it was her. 62 Ms Abbey questioned the complainant about activities on Friday nights when she was living with her father. She agreed that on Friday nights they would watch a movie at home but she said that ‘we would mostly do what he told me to do what I hated with the drink bottle and doing this with my V’ (indicates vagina) ‘and twerking and stuff and then we would watch a movie’.77 63 The complainant said that happened every Wednesday and Friday.78 Evidence of the complainant’s grandmother, RB 64 RB said that she was employed supporting children with special needs. She said that the accused and her daughter, J, separated at the time J was pregnant with the complainant (2016). For the first two years of the complainant’s life, both mother and daughter lived with RB.79 There were custody proceedings in the Family Court between 2018 and 2023. RB was a party to those proceedings. Consent orders were made by the court in June of 2023. The effect of the orders 71 T61.31; T63. 72 T65. 73 T66-67. 74 T67. 75 T67-68. 76 T78. 77 T85. 78 T86. 79 T87. -- 11 of 29 -- [2026] SADC 25 10 was that the complainant would live with her father. The principal orders were that the complainant’s mother would have access to the complainant only when supervised by RB. In cross-examination, RB said that her daughter had suffered from drug addictions, hence the supervised access. Although there were various changes to RB’s contact with the complainant, it was principally overnight every second weekend.80 65 Ms Zimmerman took RB to the events of Saturday 16 November 2024. On that day RB took the complainant to Ikea where RB purchased the loft bed for the complainant. It appears that the bed was installed at RB’s house that same day.81 Ms Zimmerman tendered photographs RB took of the complainant on the loft bed.82 66 RB said that on 16 November, after purchasing the loft bed, she proposed to take photographs of her granddaughter on the bed. Before any photos were taken, the complainant posed on the bed. RB described the pose as ‘a sort of posing in a manner that I would say was unusual for her as well and not child-like, unusual. It’s not something – an unnatural way that, you know, she doesn’t normally do’.83 67 RB said that she asked the complainant ‘where did you get that from?’ The complainant ‘blurted out’ ‘Dad … Dad gets me to do that’.84 68 RB said that the complainant went on to say that her father got her to ‘be naked and show my fanny … also bend over and pull her … butt cheeks apart and twerk’. The complainant also said that her father got her ‘to put her drink bottles down her pants or, if she’s naked, hold it there. And she thought he was trying to get her to pretend she has a penis. That’s what her words were’.85 69 RB described the initial pose in these terms. She said ‘it was really bringing her leg up and posing her arms behind her head and everything’.86 70 RB said that she told the complainant ‘you need to tell Nanny what – exactly what you’re talking about and be really sure about what you’re talking about … because it’s very serious’.87 71 RB said that she had further conversations with the complainant that day in relation to what she had been told. She said she repeated that it was a serious matter and she, the complainant, had to be sure. She said her father would get into a lot of trouble. She said the complainant was adamant. 80 T88. 81 T89. 82 Exhibit P5. 83 T91. 84 T90. 85 T92. 86 T92. 87 T94. -- 12 of 29 -- [2026] SADC 25 11 72 RB said that she asked the complainant why she had not told her before. The complainant replied that she had been threatened with punishment and she was scared. RB thought there might have been three such conversations on the Saturday.88 She had a further conversation with the complainant on the Sunday when her daughter attended.89 RB said that she called a social worker from DCP before going to the police on the Monday. 73 RB said that in the preceding six months, she had noticed the complainant twerking. She heard her daughter tell the complainant not to dance like that.90 74 In cross-examination, RB agreed that she would always have preferred to have more time with the complainant. She said she had been her primary caregiver until she was aged four and a half. She is a registered nurse. 75 Ms Abbey asked RB questions about the Family Court proceedings following the accused’s arrest of this charge. RB acknowledged that she was aware of a report tendered in the Family Court which expressed the opinion that if the accused were to be acquitted of the charge, the complainant should return to live with him.91 76 RB agreed that when she took the complainant to the police station, she told the first police officer what the complainant had told her. She had to tell the officer why they were there. She agreed the complainant was present when she had that initial conversation.92 77 RB denied that she had ever said bad things about the accused in front of the complainant. Specifically, she denied ever describing him as ‘controlling’ in front of the complainant.93 Ms Abbey tendered a USB, Exhibit D6, which is footage from the body worn camera of the police officer RB initially spoke to. During the conversation, RB did describe the accused as ‘controlling’. 78 RB was asked to describe the complainant’s pose which caused her concern. She said the complainant was on her side, bringing her leg up.94 79 Ms Abbey tendered emails sent by RB to Brevet Sergeant O’Driscoll (Exhibit D7). One email sent at 3:34am on 19 November 2025 said ‘if [the accused] isn’t found guilty or convicted [the complainant] should go immediately back to his care and that I should never have contact with her again at all … I’m sitting here beside myself since 10:00pm. The Family Court ALWAYS [sic] does what the Family Court wants.’ There was a further passage which reads ‘we need 88 T95. 89 T96. 90 T97. 91 T114. 92 T115. 93 T117. 94 T122. -- 13 of 29 -- [2026] SADC 25 12 help. If we don’t get a conviction they will hand her back to him and stop me ever seeing her again.’ Evidence of Brevet Sergeant Joel Davie 80 Brevet Sergeant Davie said that the accused was arrested on 14 December 2024. The accused’s partner declined to provide a statement. Evidence of the accused 81 The accused is 43. He has worked as a tiler from the age of 19. He and his partner, K, had been together for five years. K’s son, A, lives with them. The accused has been the complainant’s primary carer since 2020. That came about when the complainant’s mother got into ‘trouble or something’. Before that, he had the complainant staying with him on Wednesdays and Saturdays. 82 The first house, where he proposed living with K, was in her house in Prospect. He was in the process of moving in in September 2021. He said that on the weekend he was moving in, RB withheld his access to the complainant. She took the complainant to the police station where a report was made that K’s son, A, then 14, had demanded the complainant get on a bed and pose naked for him to take photos. It was alleged A had told the complainant not to tell anyone or she would be in trouble.95 83 The accused said the court permitted the complainant to remain living with him on conditions that he lived with her at his mother’s place and that the complainant have no contact with A during the investigation of the allegations. The complainant returned to living with the accused after three weeks. They lived with his mother for several months.96 After about a week, the investigation was undertaken by DCP. 84 The accused said Family Court orders were made permitting the accused to move in with K and her children so long as the complainant was never left in the care of A or his elder sister. The accused said he never had any concerns about A.97 The accused said the complainant never got into any trouble about the matter.98 The accused said he took the complainant to a psychologist for about three visits. 85 In mid-2022, the accused and his household moved to a house in Brooklyn Park. 86 The accused denied he ever caused the complainant to dance provocatively. He said he has at times stopped her from dancing around the house. He said his household is very structured and her dancing around is sometimes frustrating.99 She has been ‘hyper’ since she was two. He denied ever causing her to use a bottle as 95 T145. 96 T146. 97 T148. 98 T148. 99 T150-151. -- 14 of 29 -- [2026] SADC 25 13 she has described. He has never seen her do that. He has never caused her to expose her vagina or buttocks except when he has had to apply cream.100 He explained she was somewhat late in toilet training. He has never asked her to expose her belly.101 87 The accused said that at the time of the allegations being made, the complainant’s mother was only able to have access to the complainant when supervised by RB. 88 The accused said that ‘all the time’ RB was wanting to spend more time with the complainant – ‘she’s sort of addicted to her’. She would turn up early to collect the complainant and return her late.102 89 The accused explained the rules in his house about eating at the table and having no food in the bedroom. K would supervise the complainant’s homework when she came home from school because he was still at work. The complainant has always been enrolled in afterschool activities. He has taught her to play tennis. He found her ‘an elite tennis coach who was Kokkinakis’s tennis coach’. She was having one private lesson and two or three group sessions per week. The accused’s brother’s children play at the same club. The complainant was enrolled in swimming lessons from when she was three and dancing lessons from when she was four. She also did acrobatics.103 90 The accused explained in detail the timetable of activities for the complainant on Wednesdays and Fridays. She had taekwondo on Thursday and Monday nights.104 91 The accused denied ever locking the complainant in her room. There is no lock on the door. He has never seen K chase his daughter around with a broom. He has disciplined the complainant when she has misbehaved, either raising his voice or smacking her. 92 In the course of questions in cross-examination directed to the accused about household routines on various days, the accused said that the complainant liked tennis. He explained that the coach told him that the more she trained, the better she would be. So he tried to get her playing with him at 7:30am on random weekdays or on Friday nights which was the only night she did not have anything else on.105 He added that for her to become good, she needed a parent to encourage her – ‘the dynamics have to be correct at home or set right’. He said that maybe a couple of times in the mornings or on a Friday night she might have resisted.106 He 100 T151. 101 T152-153. 102 T156. 103 T158. 104 T159-160. 105 T168. 106 T169. -- 15 of 29 -- [2026] SADC 25 14 said he put her into a lot of extracurricular activities to help her with hyperactivity.107 93 The accused agreed that he might yell at her if she was not listening but he denied he ever told her to ‘shut the fuck up’.108 94 The accused said that the last time he smacked the complainant could have been several months before the allegations. She had smacked him unexpectedly hard on his ‘bum’ so he smacked her back. He agreed he would sometimes discipline her by smacking her on the hand. He agreed that he possibly pretended to film her, saying that he would show her teacher if she did not go to bed. That was only after he and K had tried for days on end to get her to sleep in her own bed. Otherwise, she would come to the adult bed ‘like six times every, you know, every hour on the hour and wanting to sleep in our bed’.109 95 The accused said he smacked the complainant less as she grew older, as she got to about the age of eight. She was becoming less hyper.110 96 The accused said that ever since the complainant had been in his care, even between the ages of six and eight, he or K, would wipe her bottom with wet wipes after she had defecated. He only applied cream if she was red in the area.111 He would also apply cream to her vagina if it was red.112 He might do that when she was naked, if she had just got out of the shower.113 97 Ms Zimmerman asked the accused about what happened after he understood the police would not be laying any charges against A. When asked if he spoke to the complainant after that, he said ‘I highly doubt it’. He said the court would not let them speak to her about it. He did not think he ever spoke to the complainant about it.114 He said that ‘to some extent’ he thought the complainant had made up the allegation about A.115 98 The accused was asked if he and K had ever discussed that situation. He said ‘probably, I don’t recall but probably’.116 99 The accused denied each of the complainant’s allegations.117 107 T170. 108 T170. 109 T171. 110 T173. 111 T179. 112 T180. 113 T181. 114 T184. 115 T185. 116 T186. 117 T187-190. -- 16 of 29 -- [2026] SADC 25 15 Addresses Ms Zimmerman for the prosecution 100 Ms Zimmerman delivered her address under five topics. The first was the credibility and reliability of the complainant. Ms Zimmerman handed up an aide setting out the relevant passages of the complainant’s evidence. She submitted that the complainant’s evidence had about it the ring of truth. Her oral evidence and her physical demonstrations were compelling. She made spontaneous remarks about feeling unsafe at home and nervous about having to go back to her father. She presented as a child who would want to please those around her. 101 While she was not able to recall details of the environment in which the offending occurred, such as what her father was doing at the time, she was able to describe the acts themselves. She was able to describe how she felt. 102 Ms Zimmerman submitted that there was ample opportunity for the accused to offend as alleged. Although the accused’s step-son might have been home at the time, he was commonly in his room. 103 The opinion evidence of Mr Vajdic in the Agreed Facts informed the court about the limitations on children’s ability to remember detail. Ms Zimmerman referred to the case of R v TLC118 which discusses how opinion evidence may be used. 104 Ms Zimmerman submitted that the complainant’s evidence of being told to part her vagina and buttocks cannot be explained by the innocent explanation of the need for the accused to apply cream to those parts. The complainant made a clear distinction between the therapeutic and non-therapeutic action. The poses she demonstrated are inconsistent with a therapeutic purpose. Further, the complainant said that the therapeutic need was when she was younger. 105 Ms Zimmerman submitted that the other particularised acts are overtly sexual – the direction to twerk and the posing with the bottles. Further, the threat of punishment and the warning not to tell anyone clearly demonstrate a sexual purpose. 106 Ms Zimmerman submitted that there is no credible motive for the complainant to lie. While she may well have preferred to live with her grandmother, her age tells against her motive to lie about such serious matters. Ms Zimmerman acknowledged that the rejection of her motive to lie does not strengthen the prosecution case. If the complainant was motivated to lie, one might have expected more embellished accounts of offending. 107 Ms Zimmerman acknowledged that the footage in Exhibit D4 of the complainant twerking with friends at the accused’s house is inconsistent with her 118 [2025] SADC 121. -- 17 of 29 -- [2026] SADC 25 16 evidence that she did not like twerking and only did it when told to by her father. That inconsistency may be regarded as a mistake. 108 Ms Zimmerman’s second topic was the evidence of the complainant and the evidence of her grandmother, RB. Ms Zimmerman submitted that the manner of the complaint might be expected of a child of the complainant’s age. When questioned about her inappropriate pose, she blurted out that she had been told to behave that way by her father. She added the other things he told her to do. Her complaint demonstrated consistency of account and conduct. 109 Turning to RB’s evidence, RB flatly denied that she had made up what the complainant said. While it was necessary for her to explain to the first police officer why they had come to the police station, she referred the officer to the complainant for the details. 110 RB said that her discussions with the complainant between the initial complaint and their attendance at the police station were only directed at confirming that the complainant was sure about matters which are so serious. 111 Ms Zimmerman’s third topic addressed the question of whether the complainant’s allegations amount to the charged element of gross indecency. 112 On the prosecution case, each of the unlawful sexual acts satisfies that element. The acts must have a sexual connection and purpose. They must be shocking, disgusting or revolting, according to contemporary community standards. Ms Zimmerman cited the case of Singleton v Police119 which discussed what is required to satisfy those requirements. 113 Ms Zimmerman submitted that if the acts the complainant described were accompanied by threats of punishment and warnings about disclosure then the element of gross indecency would be made out. 114 Ms Zimmerman acknowledged that there was not a lot of evidence about the alleged act of exposing the complainant’s belly. 115 Ms Zimmerman’s fourth topic related to the accused’s evidence. She submitted that his evidence should be rejected as reasonably possibly true. It too conveniently aligns with the complainant’s evidence. 116 Ms Zimmerman submitted that in particular there were four reasons for objecting the accused’s evidence about the allegation of telling his daughter to part her vagina and buttocks. The complainant made a clear distinction between the therapeutic and non-therapeutic reasons for being told to do that. She was threatened with punishment for non-compliance with non-therapeutic actions and she was told not to disclose it. There is also the regularity of this request. 119 [2009] SASC 41. -- 18 of 29 -- [2026] SADC 25 17 117 Ms Zimmerman’s final topic relates to discreditable conduct and miscellaneous directions. 118 Ms Zimmerman submitted that there is evidence of three courses of discreditable conduct which require directions pursuant to ss 34P and 34R of the Evidence Act. They are not led for propensity purposes. The acts are the alleged smacking, locking outside and being forced to twerk with clothes on. The first two are admissible to explain why the complainant might comply with her father’s directions and not complain. The third, while possibly not for a sexual purpose, demonstrates that the accused directed the complainant to behave in that way. It provides the context for the impugned directions, the ones where she was undressed. 119 Ms Zimmerman submitted that I should not use RB’s account of the offending to the first police officer as demonstrating consistency of conduct on the complainant’s part. It is really only useable by the defence in its contention that the complainant’s account was infected by what she heard RB say to the police officer. Likewise, the email, Exhibit D7, which RB sent to the police. I direct myself in those terms. 120 Finally, I should direct myself about the special arrangements made for the complainant giving evidence. She gave her evidence in court remotely and was accompanied by a court companion. The court was closed, both during the playing of the prescribed interviews and in the complainant’s sworn evidence. I so direct myself. Ms Abbey KC for the accused 121 Ms Abbey submitted that I should find the accused a truthful witness. He gave his evidence honestly and, at times, against interest. He admitted disciplining the complainant by smacking. He did not deny that there were opportunities for him to offend as alleged. He allowed for opportunities in what Ms Abbey submitted, sounded like a scheduled household. He exhibited appropriate genuine emotion at times. He felt sad and disgusted by the idea that he would offend as alleged. He has fought for years for custody of the complainant. He has been an attentive parent and attentive to her school needs. He obtained an elite tennis coach for his daughter. He was careful about her sugar intake. 122 Ms Abbey submitted that the complainant might be exaggerating or unreliable. Even if she did not have a specific motive to lie, there is a motive to want a certain outcome, that is, living with her grandmother. 123 Ms Abbey drew attention to the complainant’s use of the word ‘unappropriate’, a word mispronounced because it is not part of her everyday language. She has picked it up from somewhere. RB’s conversation with the first police officer, in front of the complainant, suggests where it might have come from. -- 19 of 29 -- [2026] SADC 25 18 124 That conversation also demonstrates an inconsistency on RB’s part. She denied ever speaking ill of the accused in front of the complainant but to the police officer she described him as ‘controlling’. 125 Turning to RB’s evidence, Ms Abbey submitted that she was reluctant to concede that the complainant was proud of her physical flexibility. The complainant’s behaviour in the prescribed interview demonstrates that pride. Ms Abbey submitted that RB was not able to describe the complainant’s shocking and unusual pose which caused her to question her. She could do no more than say ‘she had her leg up in the air’. Having heard the complainant’s explanation, RB gave her positive reinforcement. Both the first police officer and the interviewer gave her similar reinforcement. 126 Ms Abbey submitted that the complainant’s evidence lacked detail about what was going on during the alleged offending; there was a lack of context. 127 Ms Abbey agreed with Ms Zimmerman that the complainant appeared to be a child who wished to please adults. However, that is not always consistent with her wish to tell the truth. 128 Ms Abbey submitted that there was in the complainant’s presentation in court, a lack of affect. The complainant made a number of requests for breaks in court but they coincided with questions that she wanted to avoid, the most conspicuous being a long break when Ms Abbey sought to play a tape after she elicited that the complainant maintained she did not like twerking and only did it when directed by the accused. The tapes showed her twerking at home with friends and at a school disco. 129 Ms Abbey submitted that although the complainant had a memory of her step-brother, A, asking her for a nude photo, she was unable to remember what happened. Ms Abbey submitted that it would appear that nothing bad happened to her as a result of her complaint about him. Ms Abbey submitted that I should not reason that because of her age, the complainant could not lie to get what she wanted. Ms Abbey submitted that an example of the complainant making up a ‘story on the go’ was when she said that when the cream was applied, it was hurting, but the hurting was not on her vagina. It was on cuts to her hand. 130 The complainant said that sometimes the accused filmed her, but it was a late agreed fact that all the accused’s electronic devices were seized and searched by the police. They revealed nothing of relevance. 131 Ms Abbey submitted that while it might not be a case of the complainant and the grandmother sitting down to tell a false story, false stories can evolve quickly. 132 Ms Abbey submitted that both the complainant and her grandmother gave different accounts of how the initial complaint was made. RB said that the complainant’s shocking pose, and her questions about it, happened before she took the innocuous photos (Exhibit P55). She said she took those photos when the -- 20 of 29 -- [2026] SADC 25 19 complainant had ‘calmed it down considerably’.120 However, when asked specifically whether she took those photos before or after the critical conversation, she said ‘before’.121 133 Ms Abbey submitted that there are inconsistencies in RB’s evidence about her conversation with the first police officer. She said she did not give details, referring him to the complainant for them, and she said she did not, and would not, say anything bad about the accused in front of the complainant, but the body worn footage contradicts both those assertions. Whether RB was untruthful or simply unreliable about those matters, it causes a problem for the genesis of the complainant’s account. 134 Ms Abbey drew attention to another inconsistency in RB’s evidence. In court she sought to avoid the proposition that she had first thought the complainant might have learnt the shocking pose on YouTube. That is what she eventually acknowledged she had said in her witness statement, but she kept insisting that she did not know where it came from.122 135 Ms Abbey submitted that RB was likewise avoidant when she was asked whether, when she went to the police station, she gave any thought to where the complainant might live after making her disclosure. The email, Exhibit D7, showed she was frantic about the possibility of the complainant having to go back to her father. The body worn camera footage demonstrates that, at the police station, RB was saying that the complainant was terrified about having to go back to her father. On a number of occasions in the prescribed interview, the complainant asked whether she would be going to her grandmother’s afterwards. 136 Ms Abbey submitted that there was insufficient evidence to find that the accused had a sexual purpose at any stage. Further, she submitted that to find any act amounted to gross indecency, there would have to be borne in mind that the word gross adds a dimension to indecency. 137 Ms Abbey concluded by submitting that the accused had told the truth. At least what he said should be accepted as a reasonable possibility. Even if that was not accepted, there are reasons for not being satisfied beyond reasonable doubt of the complainant’s evidence. Her evidence remains unreliable and, in the context of RB’s role in her life, her reliability and truthfulness cannot be accepted beyond reasonable doubt. 120 T92. 121 T93. 122 T105-107. -- 21 of 29 -- [2026] SADC 25 20 Directions Discreditable conduct – ss 34P and 34R of the Evidence Act 138 I first identify the evidence of discreditable conduct in respect of which I must give myself the warnings required by ss 34P and 34R. They are as follows: the accused smacking the complainant; the allegations of the accused threatening to punish her for non-compliance with the charged offending; the allegations of the accused locking the complainant out of the house; and the allegations of the accused forcing the complainant to twerk while dressed. 139 None of the above may be used to suggest that the accused is more likely to have committed the charged offences because he has engaged in discreditable conduct. That is an impermissible use of the evidence pursuant to s 34P(1). It has been described as ‘bad person’ reasoning.123 I do not use that evidence for that sort of reasoning. 140 The prosecution does not, and I do not, rely on the discreditable conduct for propensity purposes. 141 The prosecution does rely on the first three items of discreditable conduct evidence for the permissible purpose of explaining why the complainant might comply with her father’s directions and not complain about them. This is permissible, non-propensity reasoning, although only if connected with the charged offending. 142 The fourth item of discreditable conduct evidence is led for the non- propensity purpose of demonstrating that the requests to twerk when dressed normalised that request so that it could be made when the complainant was undressed. 143 I am satisfied that the probative value of the discreditable conduct evidence outweighs any prejudicial effect it may have on the accused.124 144 I am satisfied that the permissible and non-permissible uses may be kept sufficiently separate and distinct.125 145 The probative value of the evidence is to be assessed taking the evidence at its highest and having regard to the other evidence in the case.126 123 R v C,CA [2013] SASCFC 137 at [79]. 124 Evidence Act 1929 (SA) s 34P(2)(a). 125 Sub-section 3. 126 Eddy (a pseudonym) v The King [2024] SASCA 115 at [67]. -- 22 of 29 -- [2026] SADC 25 21 146 My findings about the permissible uses of the discreditable conduct evidence are only processes of reasoning which are aides to proof of the facts in issue. I do not equate that reasoning with proof of the facts in issue. That proof requires an analysis of the credibility and reliability of the prosecution witnesses, most particularly that of the complainant and her grandmother. Of course, there must be findings and fact about the discreditable conduct evidence before it can be used. A rejection of any of those items of evidence may tell against the credit of the complainant. Complaint – s 34M of the Evidence Act 147 Evidence of complaint was given by the complainant and her grandmother. The complainant told her grandmother on 16 November 2024 that the accused had directed her to dance while dressed and undressed, he had directed her to hold a bottle near her vagina so as to replicate a penis and he had caused her to expose her vagina, buttocks and belly. 148 I give myself the warnings contemplated by s 34M of the Evidence Act. 149 No statement or suggestion has been made that any delay in making a complaint is of itself of probative value in relation to the complainant’s credibility or consistency of conduct127 but the reasons, or lack of reasons, for any delay may be the subject of adverse comment.128 The delay in this case arises from the allegation that the offending had been going on for some two years. The complainant gave reasons for not complaining. She said that she was scared. The accused had threatened her not to tell anyone. 150 Evidence of complaint is generally admissible to demonstrate how the allegations first came to light.129 151 Evidence of complaint is capable of demonstrating a degree of consistency of conduct on the complainant’s part, consistency of conduct in the sense that a report was made when it might be expected to be made, and consistency of account in the sense that the terms of the complainant are similar to the complainant’s evidence in court.130 152 Evidence of complaint is not admitted as evidence of its truth.131 153 There may be varied reasons why a complainant might complain to a particular person at a particular time.132 The complainant said that she was frightened to tell anyone. 127 Section 34M(2). 128 R v Jones [2018] SASCFC 80 at [117]-[118]. 129 Section 34M(4)(a)(i). 130 Section 34M(4)(a)(ii). 131 Section 34M(4)(b). 132 Kendall v The King [2024] SASCA 54. -- 23 of 29 -- [2026] SADC 25 22 154 In this case, the evidence of complaint assumes considerable importance in the trial. In my view, I would have to be satisfied beyond reasonable doubt of the accounts of the complainant and her grandmother about what was said on 16 November 2024 to be able to find that the charged offending was proved. I will elaborate on that matter shortly. Motive to lie 155 In this case the defence has submitted that the complainant and her grandmother had a motive or motives to lie about the accused’s actions. It is submitted that, for a number of reasons, each preferred that the complainant live with her grandmother. I will shortly return in detail to that submission, but for the present, I direct myself that, while it is open to the accused to suggest a motive for a witness to lie, there is no onus upon him to do so, much less to prove one. The burden of proving its case beyond reasonable doubt is on the prosecution throughout. The rejection of a suggested motive to lie does not strengthen the prosecution’s case. It is neutral. Prior inconsistent statements 156 If a witness says in court something inconsistent with what they have said on an earlier occasion, that inconsistency may adversely affect their credit. The earlier statement may only be used in that way. It may not be used testimonially. I have referred to inconsistencies in the evidence of the complainant and RB when setting out counsels’ addresses. Element of gross indecency 157 The test for indecency is behaviour or actions which offends against contemporary standards of decency and proprietary in the Australian community, including that which an ordinary person would find to be shocking, disgusting and revolting.133 158 Gross indecency requires something more than indecency. It adds a degree of seriousness. The behaviour must be judged by its context. 159 The question in this case is whether what is alleged by the complainant, taken at its highest, amounts to gross indecency. What is alleged is that the accused directed his six to eight year old daughter to perform four acts on more than one occasion, namely to part her vagina (particular (a)) and buttocks (particular (b)) for non-therapeutic purposes, to dance naked in a sexually provocative manner (particular (c)) and to pose dressed and undressed with a bottle so as to replicate a penis (particular (d)). The acts are alleged to have been attended by threats of punishment and warnings against disclosure. I have excluded from this recital particular (e), the allegation that the accused caused the complainant to expose her belly on one occasion. While I permitted the amendment of the Information to include that particular, I find that the evidence of this allegation is insufficient to 133 Robertson v Samuels (1973) 4 SASR 465 at [469]-[471]; Singleton v Police [2009] SASC 41. -- 24 of 29 -- [2026] SADC 25 23 provide a context which would bring the act within the definition of gross indecency. I find this particular not proved. I find that the other alleged actions by the accused are grossly indecent when their whole context is taken into account. Consideration 160 Each of the cases for the prosecution and the defence contain contentions or implications which are remarkable, some even unlikely. I will discuss each case to explain what I mean. 161 Before doing so I stress that, in comparing the cases for each, I do not lose sight of the burden of proof beyond reasonable doubt being always on the prosecution. The accused bears no burden of proof. The fact finding function is not conducted by preferring one case against the other or any witness against the other.134 162 That said, I deal first with the case for the prosecution. The case for the prosecution is set against a background of contested Family Court proceedings. Those proceedings went on for some five years, from 2018 to 2023. I have only scant details of the proceedings but the principal contest appears to have been between RB and the accused. RB had had the care, perhaps primary care, of the complainant until she was four and a half. The complainant was born in August 2016. It appears that the parents separated when the mother was pregnant with the complainant (2016). For the first two and a half years of the complainant’s life, she and her mother lived with RB (2018-19). 163 The Family Court proceedings began in 2018. RB said that the complainant lived with her until she was four and a half, possibly August 2016 to February 2021. The accused said that he became primary caregiver in 2020. Consent orders were made in 2023 granting the accused custody of the complainant with alternate weekend access afforded to RB. Other contact between RB and the complainant seems also to have been ordered. Access by the complainant’s mother had to be supervised by RB. 164 The offending by the accused is alleged to have taken place between August 2022, when the complainant turned six, and November 2024 when she was eight. So the offending is alleged to have begun some two years after the accused became primary caregiver but before consent orders were made by the Family Court in 2023. Until the consent orders were made there appears to have been a contest for the custody between, principally, RB and the accused. At the least, there appears to have been a contest between the two about the time the complainant spent with each. The allegations came to light in November 2024. The accused ran the risk of losing his Family Court claims if he began offending against the complainant in 2022. 134 Liberato v The Queen (1985) 159 CLR 507. -- 25 of 29 -- [2026] SADC 25 24 165 As of about 2021, the accused was on notice that the complainant might report any sexual impropriety she suffered. The accused said that he moved in to live with his partner, K, in September 2021.135 On the weekend he was moving in, he said RB withheld his access to the complainant and took her to the police station where the complainant reported that K’s then 14 year old son, A, had asked her to pose nude for him to take photos. The police and the Department for Children’s Protection carried out investigations, during which the accused had to postpone moving in with K, and instead had to live with his mother. After the investigations were completed, the accused was able to move in with K and her son, so long as he ensured that the complainant was not left in A’s care. I cannot, and do not, make any finding about the truth of these allegations against A. The point is that, as at that time, the accused was on notice that the complainant might report any sexual improprieties that she suffered. He was on that notice about a year before the alleged offending began. The complainant might report any such improprieties in the first instance to her grandmother who would report the allegations to the authorities. RB explained that as a registered nurse, she was mandated to do so. 166 Since 2021 it appears that A continued to live with his mother and the accused. He was living there during the alleged offending. 167 It is not unknown that sexual offending against children occurs in brazen circumstances but such circumstances have to be considered when embarking on the exercise of fact finding. 168 The prosecution’s case relies substantially on the evidence of the complainant. She was aged eight when taking part in the prescribed interviews and nine when she gave evidence. Her young age must be borne in mind when criticisms are made of her evidence. Children are not able to recount events in the same way that adults do. The Clinical Psychologist, Mr Srdjan Vajdic, expressed opinions consistent with that observation.136 169 That said, the complainant had difficulties being precise about a number of matters. She said the accused would threaten her that if she did not do as he ordered, she would be grounded ‘for a whole month or a year’.137 If she told anyone what was going on, she would be ‘punished for the rest of your life’.138 She was not sure whether the accused filmed what she was doing.139 She said one night when she had a bad dream and went to the adults’ bed, her father took her to the front yard and left her outside for ‘like 30 minutes … or 20 minutes or 10 … or 5’.140 She said the couple locked her in her bedroom, although she did not know how they did that because there was no lock on the door.141 She said the incident with the bottle happened ‘I think it once or twice, or … two times or five … like each 135 T143. 136 Exhibit P8 at [8]-[9]. 137 MFI P1A at [673]. 138 MFI P1A at [720]. 139 MFI P1A at [827]. 140 MFI P3A at [1509]-[1517]. 141 MFI P3A at [1534]. -- 26 of 29 -- [2026] SADC 25 25 week … Thursday, Friday … it went on for 15 weeks’. When asked if it happened in a week, she replied ‘… I think one day of the week’.142 170 The complainant’s evidence pointed to another risk that the accused took if he offended as alleged. On two occasions the complainant said that the accused’s partner, K, observed what she was being made to do. She said that K came home when she was, as ordered, placing the bottle near her vagina. She said her father started yelling at her, pretending he had not told her to do what she was doing.143 She said K came home and told her to ‘get that off your vagina’.144 171 There is force in Ms Zimmerman’s submission that if the complainant was making up her allegations, they were moderate in their terms. No overt sexual acts were alleged. On the other hand, it is somewhat unusual that over a period of two years, the offending never extended beyond the three types of behaviour alleged, that is the posing with the bottles, the parting of the vagina and buttocks and the twerking. 172 There does appear in the complainant’s evidence the use of at least one word which she has copied imperfectly from an adult. Frequently she referred to the accused’s behaviour as ‘unappropriate’. RB used the word ‘inappropriate’ when speaking to the first police officer at the police station. 173 I turn to the defence case. I repeat that while I point to aspects of the defence case which are, like the prosecution case, remarkable and seemingly unlikely, I do not lose sight of the burden of proof beyond reasonable doubt resting on the prosecution throughout. 174 The defence case is that the complainant has made up the allegations. There really cannot be a suggestion that the complainant has mistaken innocent actions by the accused for the offending she alleges. The defence points to a motive for her to lie, that motive being that she wanted to live with her grandmother. She wanted that for a number of reasons. Her grandmother’s place was more emotionally warm and her grandmother was more indulgent in several ways. By comparison, her father’s household was somewhat regimented. 175 As of 16 November 2024, RB had just had delivered a loft bed which the complainant had been hoping for for some time. As the photos (P5) show, RB had fitted out the bed in a very inviting manner. 176 On RB’s side there is no doubt that she wanted to have the complainant live with her for more time than the court had allowed, albeit that the court orders were made by consent.145 142 MFI P3A at [1597], [1601], [1613], [1637], [1641]. 143 MFI P1A at [641]. 144 MFI P3A at [114]. 145 T98-99. -- 27 of 29 -- [2026] SADC 25 26 177 There is no doubt that RB was very anxious that if the accused was acquitted of the present charge, the complainant would return to his house and she would not see the complainant again. Despite her tendency in the witness box to avoid acknowledging that anxiety, her email to the police (Exhibit D7) makes that anxiety clear. 178 RB was somewhat imprecise about the pose being adopted which shocked her and caused her to question the complainant about it. 179 Notwithstanding the suggested motive for the complainant to lie and the motive RB might have had to change the complainant’s living arrangements, the account the complainant gave of the accused’s actions is unusual. It is an unlikely story to make up. The complainant must be taken to have understood that the acts she was being asked to perform had a sexual attraction from an adult, such as her father. While her account has the unusual and imprecise details that I have mentioned, it was repeated in a relatively clear account of the essential acts she said she was asked to perform. 180 Alternatively, it would be unusual, even unlikely, that RB would concoct such an unusual story and be able to persuade the complainant to tell the police about it repeatedly. 181 I have not set out exhaustively what I make of the evidence of complaint, of discreditable conduct and prior inconsistent statements. I am struck by the peculiarity of the cases for the prosecution and the defence. Each has strengths and weaknesses in almost equal measure. Each has aspects which are compelling. 182 In the case of R v Lavery,146 Nicholson J, with whom Kelly and Peek JJ agreed, analysed the much earlier case of R v Calides,147 in which Wells J said, in relation to a jury trial, that at the end of the trial a jury might be perfectly satisfied with the cases for the prosecution and for the defence. However, his Honour went on to say that in such a case: There is a third possibility, which must never be overlooked, and that is that the jury, after full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth. If that is the situation then, of course, the verdict must also be not guilty. 183 Nicholson J expressed caution about the circumstances in which a direction in those terms should be given to a jury.148 There should not be a too ready resort to the direction. However, his Honour concluded that there were occasions when it could be probably employed. His Honour commended the direction suggested in the Court’s Bench Book. 146 [2013] SASCFC 46. 147 (1983) 34 SASR 355. 148 R v Lavery (2013) 116 SASR 242 at [39]-[40]. -- 28 of 29 -- [2026] SADC 25 27 184 That direction is in these terms: It follows that if after full and careful consideration, you are unable to decide where the truth lies or who was telling the truth, the prosecution will have fallen short proving its case beyond reasonable doubt and your verdict would be not guilty. 185 For reasons I have given I find that I am in this case unable to decide where the truth lies. I am unable to tell who is telling the truth. That being so, the prosecution has fallen short of proving its case beyond reasonable doubt. I must find the accused not guilty. Verdict 186 Sexual Abuse of a Child – Not guilty. -- 29 of 29 --