[2026] SADC 36

Prosecution: R Counsel: MR R KANE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: S, CJ Counsel: MR P TOTHILL - Solicitor: EDGE LAW Hearing Date/s: 16/09/2025 to 19/09/2025 File No/s: DCCRM-22-016673 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 S, CJ Criminal Trial by Judge Alone [2026] SADC 36 Reasons for the Verdicts of her Honour Judge Kudelka 23 April 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY The accused is charged with two offences of indecent assault. At the time of the alleged offending, the accused and complainant were dance instructors at a dance studio. The offending is alleged to have occurred in that context. Verdict: Guilty to counts 1 and 2. Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) s 34M, referred to. M, B v Police (2019) 134 SASR 575; R v C, M (2014) 246 A Crim R 21; R v Schulz (2016) 126 SASR 476; R v Ahmadi, R v Hosseini, R v A,N, R v M,A (2018) 131 SASR 64, considered. -- 1 of 22 -- -- 2 of 22 -- R v S, CJ [2026] SADC 36 Criminal 1 The accused is charged with two offences of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935. At the time of the alleged offending, the accused and complainant were dance instructors at a dance studio in Adelaide. The offending is alleged to have occurred in that context. 2 The particulars of count 1 are that between 1 April and 30 April 2021 at Prospect or another place the accused indecently assaulted the complainant by pressing his body against the back of her body whilst up against a wall. 3 The particulars of count 2 are that on 29 September 2021 at Adelaide the accused indecently assaulted the complainant by causing her to touch his penis. 4 The accused elected for trial by judge alone. Elements of the offence of indecent assault 5 A person who indecently assaults another person is guilty of an offence. The offence of indecent assault has two elements: 1. The accused assaulted the complainant. (i) The accused applied force to (touched) the complainant; (ii) The accused intended to apply force to (touch) the complainant; (iii) The complainant did not consent to the application of force (touching). (iv) The accused knew the complainant did not consent or was reckless about the absence of consent; (v) The assault was unlawful. 2. The assault occurred in circumstances of indecency. Circumstances of indecency require ‘sexual lewdness’, or a ‘sexual connotation’.1 6 To prove an offence, the prosecution must prove each element to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or probably guilty. 1 M, B v Police (2019) 134 SASR 575, [120]-[123]; R v C, M (2014) 246 A Crim R 21 at [17]-[19], [29]. -- 3 of 22 -- [2026] SADC 36 2 7 The first element for each offence is in dispute. The defence case is that no assault happened on either occasion. If I am satisfied that there was an assault on one or both occasions, there is no dispute that the assault was indecent. Witnesses 8 Four witnesses gave evidence at trial. The prosecution called the complainant and the investigating officer. The accused elected to give evidence and called his former partner, Ms BB. 9 Having elected to give and call evidence, the accused took on no burden of proof. He is not required to prove anything. He has the presumption of innocence in his favour. It is for the prosecution to prove the offences beyond reasonable doubt. The allegations 10 The complainant gave evidence that in May 2016 she began Latin dancing and attended competitions and events interstate. In 2018, she met the accused briefly at an event in Sydney. The accused was a professional dancer in Latin dance. 11 In 2019, the complainant began teaching at a dance studio in Adelaide. Mr AK was the owner of the business. 12 In late 2020, the accused commenced hiring the dance studio for his own private teaching. He described himself as one of the top dancers in Australia.2 13 In 2021, the complainant and accused met again. They both attended a party to celebrate the dance studio’s new premises. The complainant told the accused they had met before, but the accused did not recognise her; they had a dance.3 14 The accused gave evidence that the studio owner was looking for a new teaching partner to teach classes with the accused.4 The accused saw the complainant dancing and thought she might be good enough to teach with him.5 15 The complainant gave evidence that Mr AK asked whether she would be interested in teaching Wednesday night classes with the accused.6 The complainant believed she had a lot to learn from the accused.7 She was interested in a professional career in dance.8 2 T92, 163. 3 T13, 163, 172. 4 T94. 5 T95, 162 – 163. 6 T38. 7 T14, 38. 8 T12, 38. -- 4 of 22 -- [2026] SADC 36 3 16 The arrangement was that they would start teaching salsa dancing together in April 2021 on Wednesday evenings at the dance studio. Count 1 17 The complainant gave evidence the first indecent assault occurred when she visited Ms BB’s home. She believed the date was 9 April 2021, but it could have been 10 April 2021.9 18 The accused gave evidence they arranged to meet on Saturday, 10 April 2021 at his partner’s apartment.10 19 The complainant gave evidence she drove to the property, arriving at maybe 8.30 pm.11 In cross-examination, she did not dispute that it could have been 6.30 pm.12 The reason for her visit was to discuss and prepare the first class they would be teaching together.13 She agreed the accused was a very experienced teacher and dancer but did not see her role to be that of an assistant.14 20 The accused gave evidence she arrived at about 6.30 pm.15 21 The complainant could not remember if the accused kissed her on the cheek when he greeted her.16 She would have put her bag down.17 She could not remember if the furniture was shifted.18 She remembers at some point they were dancing, then had a break and the accused started making food.19 She may have had water but did not drink alcohol; she did not remember having a glass of wine.20 22 The accused gave evidence that he moved some furniture and they started dancing in the living room.21 For about an hour, they danced and spoke about different moves they could do in class. He explained in his evidence: ‘I am a more experienced dancer with (sic: than) her so I was just telling her which moves and checking also what she was comfortable with in terms of teaching’.22 His main purpose was to see her dance to assess her ability. It was an internal assessment about how good she was and if she was up to the standard to teach with him.23 He 9 T40, 49. 10 T95. 11 T16. 12 T41. 13 T15, 18, 42. 14 T42. 15 T96. 16 T41. 17 T43. 18 T43. 19 T43. 20 T44. 21 T96. 22 T97. 23 T175. -- 5 of 22 -- [2026] SADC 36 4 was then hungry and offered her some food. During the meal they discussed dance and he showed her videos of inspirational dances. 23 The complainant gave evidence that the accused indecently assaulted her as she was leaving the apartment. She went to the door and needed help with the lock.24 The accused was behind her and put his hands on her shoulders ‘like he was trying to massage my traps or something’.25 He said, ‘stay a bit longer’. She thinks she said, ‘I can’t’. 24 The complainant felt the accused push up against her back and bottom with the front part of his upper and lower body. His genitals were pushed up against her; she is not sure if his penis was erect. She felt his penis on her back and ‘froze’.26 She was facing the wall; she felt sandwiched between the accused and the wall. He whispered something in her ear, but she did not understand what he was trying to say. She felt like he wanted something else. She froze for about five seconds then said she needed to leave and he stopped pressing up against her.27 25 The complainant remembered a small dog and thinks it ran out when the accused opened the door. She took the lift down, got into her car and drove home.28 26 The accused gave evidence the complainant left at about 8.30 pm.29 He walked her to the door and kissed her on the cheek. He thought she would be okay to teach with him.30 He denied the complainant’s allegation.31 He does not recall where his dog was at the time she left.32 The dog was old and not very active.33 27 Ms BB gave evidence that she owned the property where the accused met the complainant. She left at 5.30 pm on 10 April 2021 to go to her cousin’s 40th birthday party, returning just after midnight. She noticed shifted furniture, two wine glasses on the counter and two plates and cutlery out on the sink.34 Teaching dance classes 28 There was no dispute that the complainant and accused started teaching dance classes together at the studio, probably from 14 April 2021.35 The classes were on Wednesdays at 7.30 pm and 8.30 pm.36 24 T54. 25 T20, 54. 26 T54. 27 T21 – 24, 54. 28 T25. 29 T98. 30 T179. 31 T98 – 99. 32 T100. 33 T98. 34 T214 – 216. 35 T49, 100. 36 T101. -- 6 of 22 -- [2026] SADC 36 5 29 Nor was there any dispute that they met at the studio on Wednesdays at 4.30 pm to prepare for the classes they were going to teach that evening.37 The 3.30pm sessions 30 There was no dispute that at some stage (maybe around May or June 2021),38 the complainant and accused started meeting at the studio on Wednesdays at 3.30 pm to fit in an additional session prior to their 4.30 pm planning session for the evening classes. 31 The complainant gave evidence that the purpose of the 3.30 pm session was to work on choreography with the goal of presenting a routine at a festival. It was her free time; she was not being paid nor was the accused charging her for it. 39 She highly valued that time because she was learning.40 She was keen to attend; it was an opportunity for her to improve as a dancer and achieve her goals.41 32 The accused gave evidence that the 3.30 pm sessions came about because at some point he realised the complainant’s skill level was not high enough so he thought he needed to train her: ‘I offered if she will like to do some training for her to upskill’.42 They did drills, repetitions and choreographies.43 There was discussion they might perform somewhere.44 They were friends who saw each other on a weekly basis but not close friends.45 He denied a sexual interest in the complainant. The cessation of the 3.30 pm sessions 33 There was no dispute that the 3.30 pm sessions ceased at some stage prior to the occasion the subject of count 2, that the accused was the one who ended those sessions and that he did not give the complainant a reason for ending them. Count 2 34 The complainant gave evidence the second indecent assault happened on 29 September 2021 during the 4.30 pm session at the dance studio.46 35 She walked in and they had a few words in the middle of the dance floor before they started dancing. The accused said, ‘There’s something different about you’. She asked him what he meant. He said, ‘There’s just something different about you’. She remembers feeling a bit confident and light that day.47 37 T51 – 52. 101. 38 T102. 39 T63. 40 T62. 41 T63. 42 T102. 43 T103. 44 T103. 45 T103 – 104. 46 T27. 47 T28. -- 7 of 22 -- [2026] SADC 36 6 36 During cross-examination, it was suggested to the complainant that she had a conversation with the accused about why he had stopped the 3.30 pm session. She gave evidence that she asked him a sentence, ‘why is it not happening anymore?’. She could not remember what he said. She could not understand why he was evading the questions.48 She gave evidence it was ‘barely a conversation. I just asked him’ and she is unable to remember his reply.49 She disagreed with the suggestion that she was crying.50 37 The complainant gave evidence that the accused pointed to his lips and said, ‘Do this and then I’ll tell you’. He touched his lips multiple times. He was saying ‘Give me a kiss and I’ll tell you’. She said ‘no’.51 Because he kept repeating himself the complainant believed he was getting more serious about it. She said, ‘No, let’s start dancing’.52 38 The music was on and they were in the middle of the dance floor facing each other and holding hands. At some point the accused asked, ‘Are you wearing underwear?’. She said, ‘Why are you asking me that?’. She thinks they were doing basic dance moves.53 He said, ‘I’m horny’. He grabbed her hand and put it on his penis on the outside of his trackpants. His penis was erect and he moved her hand up and down in a rubbing motion about three times.54 She froze. 39 The accused dragged them both toward the little room on the side behind the curtain saying that they could have sex in there. She said ‘No, let’s dance, we’re here to dance’.55 She tried to bring the accused back to the middle, but he still tried to persuade her to go somewhere and do something. She said ‘no’. He tried to take her to the toilet, saying ‘Come help me in the toilets’. She said ‘no’. He was holding her wrist and pulling her arm.56 She said, ‘No, you go’. He went to the toilet, and she stood in the middle of the dancefloor. She gave evidence about her thought processes.57 40 The accused came back about five minutes or more later. She asked if he felt relieved and he said ‘yes’.58 They danced to prepare for the class. When they finished, he went to his computer and probably turned off the music. He touched her hip, ran his finger from her waistline for about five to 10 centimetres and said ‘Oh, you’re not wearing underwear’.59 She does not remember how she responded. 48 T66. 49 T68. 50 T69, 84. 51 T28. 52 T29. 53 T30 – 31. 54 T31 – 32, 69 – 70. 55 T33. 56 T33 -34. 57 T34. 58 T35. 59 T35. -- 8 of 22 -- [2026] SADC 36 7 41 The accused gave evidence the complainant arrived at 4.30 pm and asked him what was going on, what was the reason for not sticking to the 3.30 pm schedule.60 He barely said anything: ‘I just said I was busy’.61 She asked him a few times and ‘started getting more frustrated because she wasn’t getting anything from me’.62 She started crying and kept asking me and ‘I just stayed quiet’.63 He waited a few minutes, he did not say anything but played music as a sign of let’s dance, which they did. He denied the allegations. After count 2 42 The complainant gave evidence that after the indecent assault she was disgusted. There was a gap of 60 or 90 minutes before the class. Her boyfriend picked her up and then she went back to teach the lesson. She did not tell her boyfriend. She taught the classes later that evening with the accused.64 Exhibit D2 is a video recording from one of the classes.65 43 The complainant gave evidence that they continued to teach the classes at the studio until she left the studio on about 21 October 2021.66 44 The accused gave evidence that after 29 September 2021, the complainant did not teach every Wednesday. They did teach the final class of the semester on 27 October.67 45 The complainant reported the matter to the police on 19 January 2022. The accused was arrested on 17 May 2022.68 No evidence of a complaint pursuant to s 34M of the Evidence Act 1929 was led. Discussion 46 The prosecution case rests upon the credibility and reliability of the complainant’s evidence. She is a direct eye-witness to the charged offending. The accused gave evidence denying the alleged offending. The question is whether on the whole of the evidence, and notwithstanding the defence evidence and argument, the prosecution has proved one or both offences beyond reasonable doubt.69 47 The evidence relating to count 1 was relevant and admissible to the proof of count 2: it may be used to prove the development, dynamics and nature of the relationship between the complainant and accused, that the allegations the subject 60 T157. 61 T157. 62 T157. 63 T157. 64 T71 – 72. 65 T160. 66 T36. 67 T161. 68 T187. 69 R v Schulz (2016) 126 SASR 476 at [35]; R v Ahmadi, R v Hosseini, R v A,N; R v M,A (2018) 131 SASR 64. -- 9 of 22 -- [2026] SADC 36 8 of count 2 did not come ‘out of the blue’ and that the accused may have felt emboldened by the time of count 2 because the complainant had not told anyone about the occasion the subject of count 1. 48 I have considered each count separately. I have not reasoned simplistically that if the accused is guilty of one count, then it follows that he is, or may be, guilty of the other count. 49 The defence submitted that the complainant made up the allegations because she felt she had been stonewalled by the accused and the studio owner after the 3.30 pm sessions ceased.70 The complainant denied concocting the allegations or any such motive.71 Having raised a motive on the part of the complainant to lie, there is no requirement for an accused person to prove that motive. It is for the prosecution to disprove the motive. Even if the prosecution does disprove a motive, it does not follow that the complainant is telling the truth about the allegations. The prosecution must prove the complainant’s evidence is credible, reliable and acceptable to the standard of beyond reasonable doubt. 50 Defence counsel submitted that the complainant was not a cooperative, straightforward or trustworthy witness.72 There were times when she answered questions with questions or made comments that made it hard to follow whether she was describing something that was in fact said or if it was her thought process and re-construction.73 The defence submitted it was as though the complainant was trying to get ahead of the question. She could give lengthy answers to simple questions. 51 I agree there were times when the complainant answered questions with questions, gave a lengthy or indirect answer to a prima facie simple question or included her thought processes in her answers. However, I do not consider she was being deliberately difficult, uncooperative or evasive. To the contrary, I considered her to be an intelligent young woman who was at times frustrated with questions on topics that seemed to her to call for irrelevant detail. Some of her answers were defensive, but not in an obstructive way. I consider her defensiveness was consistent with a genuine recall of past events and the need for her to relive a time when she feels she was manipulated and unfairly treated. 52 In relation to the occasion the subject of count 1, apart from the alleged offending itself, there was no significant dispute about the general course of events that evening. There was no dispute that the complainant and the accused were alone at the accused’s partner’s apartment during the evening of 10 April 2021, about the general reason for the meeting or that they danced and shared a meal for a few hours. 70 T188, 238, 243 – 244. 71 T142. 72 T249. 73 T248. -- 10 of 22 -- [2026] SADC 36 9 53 During closing submissions, defence counsel referred to the complainant’s ‘difficult’ answer to a ‘simple’ question about the date of the first alleged indecent assault at transcript page 48 as an example of her general approach to giving evidence.74 54 An assessment of whether the complainant’s answer at page 48 was ‘difficult’ needs to be made in its context which, in my view, commences at page 43 when the complainant was asked to recall the sequence of events on the evening of count 1. She was asked ‘After you were greeted and you came inside what happened first’. She replied, ‘Put my bag down’.75 She was asked about the movement of furniture, how long they talked, how long they danced, whether there was an invitation for food and whether there was an invitation to have a glass of wine. She gave evidence she could not remember the glass of wine and agreed that would be something she would remember.76 55 She was asked about giving her first statement to the police on 19 January 2022 and then signing it. Defence counsel indicated that he wanted to read something to her and suggested she made no mention in her statement of a meal. She was asked if she wanted to look at her statement and said, ‘No, I’ll wait’. Defence counsel then said that he wanted to be fair to her and she could look at her statement. She responded ‘Why? Why were you commenting about the food?’.77 Defence counsel responded by saying he was suggesting that when she had an opportunity to first express herself about what had happened, she made no mention about the food. She agreed with that. It was then put to her ‘And that’s something you have now remembered’. She responded: ‘I have always remembered about the food’. Then from counsel: ‘It was just never in your statement’ to which the complainant responded, ‘I guess I didn’t think about going to the police to report I ate something’.78 She agreed she was trying to assist the police and would have been told details were important. It was then suggested that she has only just now remembered about the food and that it was not something she told the police. She responded: ‘Yeah, I did not tell the police at the time. I didn’t think about it at the time. I was stressed. Something happened to me. The food wasn’t something that was killing me, but it was irrelevant and I didn’t think – it didn’t pop in my mind and now I remember that sequence of events and that’s how I remember it now. It was probably in my head then anyway, but I didn’t go to the police to report because I didn’t think about it’.79 56 The complainant was then asked if she agreed she told the police that the occasion of count 1 took place on 9 April 2021 (not 10 April 2021). She replied, ‘Whatever I wrote in the statement I guess’. She was asked if she wanted to be shown the statement, ‘I don’t mind’. Part of the statement was then read to her 74 T249 referring to T48 line 26 to T49 line 1. 75 T43. 76 T44 – 45. 77 T46. 78 T46. 79 T46. -- 11 of 22 -- [2026] SADC 36 10 and then she was given the statement to read herself.80 The ‘simple’ question referred to by defence counsel during submissions was then asked and the complainant gave her ‘difficult’ answer: Q. So having the benefit of looking at that, did you actually start on 9 April teaching Latin together with [name of accused]. A. I'm not going to meet up with someone that I'm not kind of in contract with at that point. It's not a test, he's not my employer. If [name of studio owner] said something and I had to meet up with him, I think these dates and you know when I go to have a statement written and I could look through and there's mistakes, like you know errors and stuff, if it was on the 9th or the 10th and if we are technical and say, well, you only started teaching once [name of studio owner] paid you then it's - I have no benefit of just going to see this person at his girlfriend or friend's house for fun.81 57 By the time the ‘simple’ question was put, the complainant was visibly frustrated about the focus of questioning about food and an apparent criticism of her for not including that detail in her statement. In her mind, the alleged indecent assault was important. She was also asked about getting the date wrong by one day. She had already been cross-examined about whether she spoke with the accused on 9th April 2021 to arrange the meeting for the 10th.82 The ‘simple’ question referred to by defence counsel was a revisiting of that topic in the context of her prior statement to the police. When the topic was pursued after the complainant’s ‘difficult’ answer, she was agreeable with the cross-examiner’s final position: Q. I understand that. What I'm trying to confine you to is did you go there on Saturday the 10th or Friday the 9th. A. I know we had a conversation on the 9th and the address was given on the 9th, I didn't look at the time. It could have been on Saturday if - I don't know, I'm sure you have the text messages. Q. You are not sure now. A. Well I've written on here the 9th would start, I don't know, teaching Latin together, whatever the day was that I was there, there's evidence. Q. I want to suggest to you that you saw him at 6.30 p.m. on Saturday, 10 April 2021 to commence a meeting about lessons that would begin next week, the following week. A. If that's what happened, then yes. Like for me the difference between one day that we could have a look at this as well, whether I started on the 9th when I was, whether I was at his house on the 9th or you know if I - it's a very short paragraph. Q. I want to suggest to you that you never started the teaching with [the accused] until Wednesday, 14 April. 80 T47. 81 T48:26 -T49:1. 82 T40. -- 12 of 22 -- [2026] SADC 36 11 A. Yep, probably. Q. That would be right. A. Makes sense, I didn't see him from that time until that time. 83 58 I do not consider the complainant was being deliberately difficult. Rather, she was frustrated with questions about matters that seemed to her to be outliers. 59 My impression is the same with answers given by the complainant about whether furniture was shifted before they danced. I do not agree with the defence submission that her answers were ‘unusual’.84 She explained that Latin dancing does not require a lot of room, which may be why she cannot remember whether they had to shuffle furniture or not.85 60 I do not consider the complainant’s belief that she did not have alcohol with the food to be a matter adverse to her credibility or reliability. Even though she agreed it might be something she would remember, it is plainly something that she does not remember. In my view, she honestly does not remember having a glass of wine. I do not consider there is anything sinister in that lack of memory. 61 The real dispute between the parties is the occurrence of count 1 at the end of the evening. The onus is on the prosecution to prove beyond reasonable doubt that the complainant was indecently assaulted at the door when she went to leave. The accused denied that any indecent assault occurred. 62 Defence counsel submitted that the allegation was problematic because of the door layout, particularly, ‘what the wall is next to the door’.86 The accused gave evidence there was a gap between the door which he estimated to be 15–20 cm. It was not put to the complainant that there was something about the placement of the cupboard that meant the indecent assault could not have occurred; nor was she specifically asked about the cupboard or a small area of wall. She was merely asked in cross-examination to identify the door in question.87 I do not consider there is any weight in the defence submission. 63 I do not consider the complainant’s evidence that she felt the accused’s penis when his body was pressed close to her body to be significantly inconsistent with the statement she gave to police on 19 January 2022. In the latter, she said ‘he pushed me towards the wall face forward pressing his body into my back making contact with the wall and the front of his body’.88 The complainant did not specifically mention the accused’s penis when she gave her statement but she did 83 T49. 84 T250 referring to T43. 85 T43 – 44. 86 T249. 87 T56. 88 T55. -- 13 of 22 -- [2026] SADC 36 12 state that she felt he was pressing his body into her back. The detail she gave in her evidence may be implied in her statement to the police. 64 The fact the complainant did not tell her boyfriend about what she says happened that evening is not a matter adverse to her credibility. She gave evidence that she tried to put what happened (count 1) into the back of her head and tell herself it was nothing. She did not think anyone would believe her.89 In cross-examination she was asked whether she thought to tell her boyfriend and she responded, ‘I’m not sure. I didn’t even properly process it at the time, I was like, ‘No, this didn’t happen. It can’t have. I just came here for something professional, this has happened. Who am I to tell. I’m going to lose an opportunity here, put up with it’’.90 She pushed it aside.91 Her answer was credible; it rang true. 65 It was suggested in cross-examination that she had a choice to continue working with the accused; she had another job that was not related to dance and taught private dance lessons.92 The complainant agreed she had a choice. She responded to the suggestion that she chose to work with the accused because it was a great opportunity by stating that ‘It was made to look that way, yes’.93 By that answer, I took the complainant to refer to how the opportunity to work with the accused was being represented to her at the time. As she had earlier stated, she had been given an opportunity to learn from a professional dancer who then indecently assaulted her. She did not want to lose the opportunity. I do not consider there to be anything unusual about her thought process. Her description of the invidious position that a young woman may be put in when a professional opportunity is compromised by another person’s abuse of power was compelling. She decided to ‘put up with it’. 66 I found the complainant to be a credible and reliable witness in relation to her evidence about count 1. As discussed below, I did not find the accused to be a credible witness. 67 After count 1, there is no dispute that the complainant and accused taught classes together at the studio on Wednesday evenings at 7.30 pm and 8.30 pm. They met at the studio at 4.30 pm on Wednesdays to plan the classes for the evening. 68 At some stage, they started to meet at the studio at 3.30 pm for a different type of session; the accused offered his time free to the complainant to develop her dancing. There is no dispute that in early September 2021, the accused suddenly stopped the 3.30 pm sessions, and they reverted to meeting for the 4.30 pm session only. 89 T26. 90 T58. 91 T60. 92 T58. 93 T59. -- 14 of 22 -- [2026] SADC 36 13 69 Regarding count 2, there is no dispute that the complainant and accused met at the studio at 4.30 pm on Wednesday, 29 September 2021 to plan the classes for the evening; they did not meet at 3.30 pm. There is significant dispute about what occurred at the 4.30 pm session. The complainant gave evidence the accused indecently assaulted her. The accused gave evidence denying the allegations and having any sexual interest in the complainant. 70 The defence submitted that the complainant’s account of count 2 defied common sense.94 On the complainant’s own evidence, her description of their relationship during September 2021 leading up to count 2 (when the accused hardly spoke to her) does not fit with the notion that the accused had a sexual interest in her at the end of September 2021 (and therefore would indecently assault her).95 The defence submitted that the events and setting described by the complainant is not conducive to the accused being ‘horny’ and saying or doing what the complainant alleges.96 71 The difficulty with that submission is that it presupposes the accused having a sexual interest in the complainant that is founded upon genuine regard for her. That is not the type of sexual interest that the prosecution alleges underlies count 2. The prosecution case is that the accused’s sexual interest in the complainant was founded upon power and exploitation. Contrary to the defence submission, it is my view that the alleged indecent assault at the end of September 2021 is entirely consistent with the state of their relationship during September 2021 when the accused was ‘stone-walling’ the complainant. It was an exercise by the accused of power and control over the complainant. 72 The accused gave evidence that about four weeks before the occasion the subject of count 2, he abruptly stopped the 3.30 pm sessions and ‘stonewalled’ the complainant. He explained there were two occasions at the beginning of September 2021 when the complainant’s behaviour upset him, but it was only the second one that caused him to behave the way he did. 73 The first occasion was on Saturday, 4 September 2021 at the dance studio party that he attended with Ms BB who told him at the party about a conversation she had with the complainant that evening. He gave evidence the actual information he received from his girlfriend ‘wasn’t a massive deal’ but it was how his partner was feeling that made him feel uncomfortable and upset.97 74 Ms BB gave evidence the complainant spoke to her at the studio party and was trying to impress her ‘superior status’98 upon her as a teacher, telling her she was part of the in-crowd with the other teachers. It made Ms BB feel less than an 94 T244. 95 T242. 96 T240. 97 T151, 186. 98 T217. -- 15 of 22 -- [2026] SADC 36 14 inferior because she was generally still a novice. She told the accused she was upset and gave evidence that made him frustrated.99 75 It was plain during Ms BB’s evidence that she did not like the complainant at the relevant time. She was quite coy when giving her evidence about arriving back home on 10 April 2021 to see the two wine glasses left on the counter, her knowledge about the complainant being there and the nature of any discussion with the accused about the wine glasses. She corrected the prosecutor during cross- examination by saying the wine glasses were not on the draining board, but just on the counter; she was certain the glasses had contained red wine because she remembered the stains on the glasses and she asked the accused about it the next morning only because she was ‘just curious as to what led to them drinking wine’.100 76 Ms BB did not claim to have the same memory for detail about events on 4 September 2021 as she did for events on 10 April 2021. She could not remember details of her conversation with the complainant on 4 September 2021 that she then relayed to the accused, other than the way it left her feeling. Her inability to remember detail of the alleged conversation meant that nothing concrete could be put to the complainant about it during cross-examination.101 77 Ms BB completed her evidence-in-chief by describing the complainant on 27 October 2021 to be ‘quite I guess frantic if you will and a little bit worried and concerned’.102 She gave evidence the complainant asked her why the accused was upset with her and why he and other teachers were not responding to her messages. She told the complainant she did not know why. There was no further conversation because class was starting ‘and I didn’t really want to entertain the conversation’.103 78 I find that Ms BB did convey something to the accused on 4 September 2021 which gave him the impression that the complainant was getting above herself. I consider that behaviour is entirely consistent with what I determined to be her palpable dislike of the complainant at the time. It matters not whether that was an accurate description of the complainant at the time. The relevance of the evidence lies in the fact that something of that nature was conveyed to the accused and the accused’s disavowal during his evidence of that information as a reason for his behaviour toward the complainant during September 2021. 79 The accused gave evidence that it was the second occasion that caused him to change his behaviour toward her. It was the information he received on the Monday following the studio party that caused him to cease the 3.30 pm sessions and ‘stonewall’ the complainant. He was told the complainant was teaching private students off-site. 99 T217. 100 T219 – 220. 101 T111 – 114. 102 T218. 103 T218. -- 16 of 22 -- [2026] SADC 36 15 80 That information upset him for two reasons. The first related to how it impacted him; the second concerned how it impacted the studio owner: ‘Because what I – what I thought at the time is that she was becoming all of a sudden competition for us at [the studio]. Also I didn’t think she was doing the right thing by [name of studio owner] because he was the owner and also by me because they were potential clients that I could be teaching’.104 81 In relation to the first, he was told the complainant was charging a much cheaper rate then he would charge. He gave evidence that part of the information he received on Monday, ‘if I’m not wrong’, was that the complainant messaged the student and offered to go to her place and teach her at a cheaper rate’.105 He was upset because ‘I was giving her my time training her, making her become a better dancer and at the same time I thought that I was being betrayed’.106 82 I did not find that explanation for abruptly cancelling the 3.30 pm sessions to be credible. 83 The accused’s evidence that he was genuinely upset by news that the complainant was ‘doing it cheaper’107 than he would charge makes no sense. He described himself as one of the top dancing instructors in Australia at the time.108 He gave evidence that he was better qualified and taught at a more advanced level and therefore charged more for a private lesson than she did. He admitted that he would expect her to charge less than he would charge.109 84 His evidence that he was genuinely upset because she was taking students away from him and it was ‘a form of competition’110 does not fit with his evidence that he was one of the top dancing instructors who was very much in demand.111 He attempted to further explain that the issue for him was ‘for someone that’s new dancing, a new student, that person wouldn’t be able to recognise if I’m better than [the complainant] or if [the complainant] is better than me’.112 However, the information he claims to have received on Monday was that the complainant was approaching a student/s in the classes they were teaching jointly and offering to teach the student/s at a cheaper rate.113 In light of the accused’s self-confidence and dancing talent, it is difficult to accept that he would not make it clear to new students in those classes that he was the more experienced dancer and teacher. Having assessed him give evidence, I have no doubt he would make his superior status and position well known to new students. 104 T152. 105 T190. 106 T152. 107 T187. 108 T182. 109 T156, 187. 110 T187. 111 T182. 112 T189. 113 T189. -- 17 of 22 -- [2026] SADC 36 16 85 The accused’s second reason for being upset by the information also lacked credibility. He claimed to be upset because the studio owner would not get the cut from the complainant’s private teaching.114 However, the accused admitted that his own agreement with the studio owner did not stop him from teaching privately off site; it was his choice to teach privately at the studio.115 He also admitted that he did not know the complainant’s arrangement with the studio owner.116 86 The accused’s account of his conversation with the complainant on this topic also lacks credibility. Without first speaking to the complainant about what he had been told, the accused decided not to meet the complainant that Wednesday at 3.30 pm. Instead, he used the group chat to message the complainant to meet at 4.30 pm on the upcoming Wednesday.117 87 He gave evidence that he spoke to the complainant on Wednesday after their 4.30 pm session about what he found out on Monday.118 He told the complainant he knew she was doing private lessons outside the studio and doing the wrong thing by the studio owner and by the accused because they were his students as well.119 He wanted to make her realise it was wrong, maybe get an apology and have the complainant contact the students to tell them she could teach them at the studio.120 He told her she was being ‘unethical’. He gave evidence she was upset because she could not understand what was wrong about it.121 He did not tell the complainant why he was ceasing the 3.30 pm sessions.122 88 If the accused really had the conversation with the complainant about what he was told on Monday (including telling her that he thought she was behaving unethically), I find it odd that he would not also tell her that was why he was no longer prepared to do the additional 3.30 pm sessions. The accused tried to explain that oddity during his evidence by suggesting that he conveyed it to the complainant indirectly: ‘I had that conversation with her about me not thinking it was right and then I just gave her the silent treatment. So, in my view, it was clear that she knew why I was upset’.123 I consider that was a long way from connecting the dots for the complainant. On the accused’s evidence, he was able to make it clear that he thought what she was doing was wrong. It makes no sense that he was not then able to join the dots for the complainant but instead deliberately withheld his reason for discontinuing the 3.30 pm sessions. 114 T188. 115 T191. 116 T188. 117 T153. 118 T153 – 154. 119 T154 – 155. 120 T155. 121 The complainant gave evidence that she could not recall such a conversation and she trained all her students at the studio: T64. 122 T187, 196. 123 T197. -- 18 of 22 -- [2026] SADC 36 17 89 The accused admitted that his communication about the 3.30 pm session ‘wasn’t very clear for my part. I just started being shorter and shorter when it came to communication. I would just tell her at what time she was required at the studio for class planning and obviously my conversations with her just sort of stopped’.124 After agreeing in cross-examination that he did not really communicate his decision to her in any meaningful way, it was suggested to him that he must very much regret that. He answered, ‘What I regret was to not being able to do it in the right way. I think the right way would be to inform…the owner of the dance school, and get him to talk to her about the whole issue and keep myself outside of that’.125 90 The defence submitted that the accused is not to be judged for his ability to resolve professional issues.126 I agree and have not judged him for what, on his case, is a failure to deal with that issue professionally. I have not reasoned simplistically that he dealt with that professional issue badly and therefore he is the type of person more likely to commit the offences. Rather, I found his evidence about receiving information on Monday and the reasons why he was so upset about it to lack credibility. Further, I did not find his evidence about a purported discussion with the complainant on that topic to be believable. 91 I did not find the accused to be an honest or credible witness and I have rejected his evidence. 92 In cross-examination, the complainant did not recall a conversation with the accused on the topic of her conducting private lessons with students.127 She was asked if she recalled the accused having a conversation about it being unethical for her to be taking private students away from the studio and she replied, ‘I’m not sure how that has to do with anything as well and also I don’t know’. She said, ‘I wasn’t taking anyone, training them personally they were all at the studio. They were all at the studio and they contacted me and [the studio owner] knows about it’.128 The way in which the complainant answered those questions was consistent with the way she answered questions on a topic about which she could not see any relevance. She did not concede having such a conversation with the accused; she did not know. She answered the part of the question about whether she was in fact taking private students away from the studio, rather than whether the accused spoke to her about that. 93 There is a further difficulty with the accused’s evidence about why he stopped the 3.30 pm sessions. On subsequent occasions when the complainant directly asked him why he had stopped the 3.30 pm, he still did not give her an answer. He agreed the complainant asked him multiple times for an explanation but he did not respond: ‘No, for me, I guess at the time for me it was a kind of a 124 T153. 125 T196. 126 T238. 127 T63. 128 T63 – 64. -- 19 of 22 -- [2026] SADC 36 18 punishment just to leave her out of any communications, any training, any, yeah, just to give her the silent treatment, yes’.129 On the one hand the accused claims he had a conversation with the complainant during which he told her she was being unethical, but on the other hand he continually refused to tell her that was the reason why he had stopped the 3.30 pm sessions. 94 I do not believe the accused’s evidence that his behaviour toward the complainant during September 2021 related to a genuine professional issue. In my view, his behaviour toward the complainant was a deliberate exercise of power and control over her. The defence submitted that the complainant developed a sense of being the accused’s equal or peer, of being part of the team; not merely an assistant.130 I do not doubt that is something the accused believed. I have no doubt that something of that nature was conveyed to the accused by his girlfriend on 4 September 2021. In my view, however, it is precisely that which troubled the accused. 95 As a matter of fact, the accused had a higher status than the complainant as a Latin dancer and teacher. In my view, there is no doubt that he knew it and needed the complainant to understand that she was fortunate to have him take the time to teach her. She needed to understand that he did not need her; but rather, she needed him. 96 The accused gave evidence that he noticed the complainant at a studio party for three or four minutes and thought she might be an appropriate assistant teacher.131 By the end of the session on 10 April 2021, he was pretty certain he would teach with her ‘because we didn’t have any other option at the time. She was just okay for the classes’.132 He did not need her because he could teach the classes by himself but it was the owner’s preference for him to teach with a partner.133 After he started teaching with the complainant he realised her skill level was not high enough ‘so I thought of training her because I did think she had a lot of potential to improve’.134 He started the 3.30 pm sessions because he thought he ‘may as well just train her’.135 He was not paid by the complainant or the studio owner for the 3.30 pm sessions.136 He trained her up until the end of August then he changed his mind about it.137 97 In my view, he changed his mind about it because, in his eyes, the complainant was getting above herself. Withdrawing the 3.30 pm sessions and not telling her why was his powerplay. He abruptly took away the opportunity that 129 T197. 130 T237. 131 T171. 132 T179. 133 T181 – 182. 134 T102. 135 T185. 136 T184. 137 T103. -- 20 of 22 -- [2026] SADC 36 19 she believed she had been given to improve her status as a professional dancer.138 The complainant was asked in cross-examination whether she was upset by the fact he would not tell her why he withdrew the sessions. She replied: ‘Well actually he would not just tell me, just no answer. Why would you do that to a teammate?’. She was asked whether she was upset by that and replied: ‘I don’t know if ‘upset’ is the right word, but I’m like ‘Okay, you’re going to make me question?’.139 In my view, that is precisely what the accused intended. He intended to make her question, to ask why. 98 The complainant gave evidence-in-chief that on 29 September 2021, she arrived for the 4.30 pm session and the accused said, ‘There’s something different about you’.140 She tried to be herself and said, ‘What do you mean?’. She gave evidence that then at some stage he pointed to his lips and said ‘Do this and then I’ll tell you’.141 He wanted her to kiss him and she said ‘no’; there was some banter about his girlfriend/her boyfriend but she felt the accused was getting more serious about it because he kept repeating himself.142 99 During cross-examination, it was put to the complainant that she asked him about the 3.30 pm sessions. She gave evidence that she ‘asked him a sentence…why is it not happening anymore?’.143 She could not remember if he answered. During examination-in-chief, the complainant did not give evidence about asking the accused that question. I do not consider that is adverse to her credibility. There are good reasons why she might not remember. She gave evidence this topic was barely a conversation that day; she just asked.144 It was also not the first time she had asked that question. Further, I do not consider the complainant then understood what the accused was playing at by abruptly cancelling the 3.30 pm sessions and stonewalling her; nor do I consider she fully appreciates it now. 100 I agree with the defence submission that the evidence about the weeks leading up to 29 September 2021 ‘sets the scene for what is really going on during that session’.145 In my view, however, that scene is not adverse to the complainant’s credibility or reliability. Nor does it provide her with a motive to make up these allegations. Rather, it ‘sets the scene’ for what the accused was doing. He took away something he knew the complainant wanted and she kept asking why. The evidence about the weeks leading up to 29 September 2021 is adverse to the accused’s credibility. 101 I accept the evidence of the complainant and I am satisfied beyond reasonable doubt that the accused made a sexual advance earlier (count 1). The accused knew 138 T63. 139 T66. 140 T27 – 28. 141 T28. 142 T29. 143 T66. 144 T66 – 68. 145 T243. -- 21 of 22 -- [2026] SADC 36 20 the complainant did not complain about his sexual advance and took up the opportunity to teach and ‘train’ with him. When she got too confident about her status, he cut her down; he withdrew the extra training and stonewalled her. On multiple occasions during the month she asked why and he did not respond. On 29 September 2021, he made his next power move. If she wanted his ongoing professional association, then the condition was his sexual advances. 102 The defence submitted that the complainant gave evidence the accused was wearing grey pants146 on the occasion the subject of count 2, but the video of the subsequent teaching session shows him wearing black pants. I do not consider the complainant’s inability to remember the colour of the accused’s trackpants to be of any moment. 103 The fact the complainant continued with the 4.30 pm session after she was indecently assaulted, did not tell her boyfriend afterwards and returned to teach the classes with the accused that evening does not cause me to doubt her credibility. She gave the following evidence: ‘I had commitments to the people I was teaching for. I had commitments to a job. You could say that I wasn’t thinking about myself and I was there to teach. I was there for the people and I’m not going to let something that had just happened, I hadn’t had time to process, didn’t know what to do. I went back to teach, because it’s easier to pretend that you’re fine’.147 I considered her answer to be honest and genuine. It is a misconception to believe or expect that ‘true’ complainants of sexual assault would respond to sexual assault in a certain way, for example, that they would cry out, immediately leave the scene, tell the first person they see or never return to engage with the alleged perpetrator again. I have not judged her evidence based on such a misconception and I do not find her conduct to be adverse to the credibility of her complaint of sexual assault. 104 On the whole of the evidence, and notwithstanding the defence evidence and argument, I find that the prosecution has proved both offences beyond reasonable doubt.148 Verdicts 105 I am satisfied beyond reasonable doubt that on both occasions the accused intentionally assaulted the complainant and that the assault occurred in circumstances of indecency. 106 I find the accused guilty of counts 1 and 2. 146 T31, 69. 147 T72. 148 R v Schulz (2016) 126 SASR 476 at [35]; R v Ahmadi, R v Hosseini, R v A,N; R v M,A (2018) 131 SASR 64. -- 22 of 22 --