[2026] SADC 35

Prosecution: R Counsel: MS C HANNA - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: S, KL Counsel: MR M MEAD - Solicitor: DIXON GALLASCH BARRISTERS & SOLICITORS Hearing Date/s: 25/11/2025 to 28/11/2025, 15/12/2025 to 16/12/2025 File No/s: DCCRM-24-045577 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, KL Criminal Trial by Judge Alone [2026] SADC 35 Reasons for the Verdicts of her Honour Judge Kudelka 23 April 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT The accused is charged with three counts of rape. The complainant is his former de facto partner. The offending is alleged to have occurred in October and November 2021, after the accused and complainant separated but were still living under the same roof. Verdict: Not guilty of counts 1, 2 and 3. Criminal Law Consolidation Act 1935 (SA) s 48; Evidence Act 1929 (SA) s 34M, s 34N, referred to. R v Rippey; Rippey v The King [2022] SASCA 141; R v Fragos [2023] SASCA 6; Weragoda v The Queen [2021] SASCA 123 ; R v T, S (2017) 128 SASR 66; R v S, DD (2010) 109 SASR 46; R v El Rifai [2012] SASCFC 98; R v Usher (2014) 119 SASR 22; R v P, S [2016] SASCFC 97; R v Moores (2017) 128 SASR 340; R v Landmeter (2015) 121 SASR 522, considered. -- 1 of 23 -- -- 2 of 23 -- R v S, KL [2026] SADC 35 Criminal 1 The accused is charged with three counts of rape, contrary to s 48(1) of the Criminal Law Consolidation Act 1935. The complainant is his former de facto partner. At the time of the alleged offending in October and November 2021, the prosecution case is that the complainant had ended the relationship and was living separately under the same roof with the accused at their Davoren Park home. 2 It is alleged that the offending the subject of count 1 occurred in October 2021 during the afternoon at the Davoren Park home. The particulars of count 1 are that between 10 October and 31 October 2021 at Davoren Park the accused engaged or continued to engage in sexual intercourse with the complainant by inserting his penis into her vagina, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented. 3 It is alleged that counts 2 and 3 occurred in November 2021 during an evening at the Davoren Park home. 4 The particulars of count 2 are that on 11 November 2021 at Davoren Park the accused engaged or continued to engage in sexual intercourse with the complainant by causing her to perform an act of fellatio upon him, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented. 5 The particulars of count 3 are that on 11 November 2021 at Davoren Park the accused engaged or continued to engage in sexual intercourse with the complainant by inserting his penis into her vagina, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented. 6 The accused elected for trial by judge alone. Elements of the offence of rape 7 A person who rapes another person is guilty of an offence. The offence of rape has three elements: 1. The accused engaged in sexual intercourse with the complainant. The definition of ‘sexual intercourse’ includes penile/vaginal intercourse (counts 1 and 3) and fellatio (count 2). 2. The complainant did not consent to the act of sexual intercourse. 3. The accused knew the complainant was not consenting or was recklessly indifferent as to her consent. -- 3 of 23 -- [2026] SADC 35 2 8 To prove an offence of rape, the prosecution must prove each of the three elements of the offence 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. 9 All three elements were in dispute. Witnesses 10 The prosecution called five witnesses: the complainant, three police officers (Senior Constable Ulli Maynard-Stagat, Constable Dallas Hill, Detective Brevet Sergeant Jonathan Cheetham) and an expert witness (Professor Jane Goodman- Delahunty). 11 The accused exercised his right to remain silent; he did not give evidence or call witnesses. No adverse inference has been drawn against the accused because of his exercise of that right. 12 The accused has a presumption of innocence in his favour and bears no onus of proof. The prosecution has the burden of proving his guilt of one or more of the offences to the standard of beyond reasonable doubt. The allegations 13 The accused and complainant met in November 2019 when they each had partners. In February 2020, the accused moved into the complainant’s house at Munno Para West where the complainant lived with her partner and three girls who were then aged 14, 11 and four. The complainant’s partner eventually moved out and the complainant and accused commenced a de facto relationship. 14 The complainant had full time care of her two older girls and shared care of her youngest girl with that child’s father. 15 The accused was the father of two boys who were then aged five and three. He had a shared care arrangement with the mother of the boys. 16 The relationship between the complainant and the accused was ‘on and off’.1 17 By November 2020, the complainant was pregnant with a child fathered by the accused.2 18 In April 2021, the complainant, the accused and their respective children moved to live in a house in Davoren Park. The complainant gave evidence that her relationship with the accused by that stage was not very good. Stressors included finances and finding the new rental accommodation.3 During the complainant’s pregnancy, the accused was very distant, detached from the family 1 T23. 2 T29. 3 T31. -- 4 of 23 -- [2026] SADC 35 3 in general. The complainant then discovered the accused was having an affair.4 The accused moved out of the house but, after a few weeks, moved back in. The complainant explained that she felt bad; she missed the accused’s children, her children missed the accused, and she was having a baby with the accused so she felt she owed it to the children and the baby to try again.5 19 On 25 August 2021, the complainant gave birth to a boy whose biological father is the accused. The accused’s drinking 20 The complainant gave evidence that in December 2020 she began to realise the accused was drinking a lot, ‘like more than normal’.6 Every day he had two to four drinks.7 It got to the point where the accused was not really able to go a day without a drink; it increasingly got worse.8 21 Around the time the baby was born, the accused was drinking heavily. He was drinking by 11.00 am or noon each day, not going any days without drinking and drinking more than four drinks per day.9 22 In the first few weeks after their son was born, ‘things were really bad’.10 Most days the accused was drunk and completely detached. The accused drank a carton of beer in two to three days. He started at 10.00 or 11.00 am and would rarely make it to midday without having a beer. He got nastier and angrier and made a lot of silly decisions.11 He borrowed and scrounged money to buy beer. In the period through to November 2021, he was intoxicated on most days by midday to 2.00 pm.12 Separate living arrangement 23 When the baby was five or six weeks old, the complainant gave evidence that she ended her relationship with the accused. She described an altercation with the accused when he was ‘very, very drunk’ and would not give the baby back to her.13 The altercation and separation occurred on 10 October 2021, but they continued to live together under the same roof.14 They slept separately and there was no consensual sexual activity after they separated.15 The accused was trying to find 4 T115. 5 T33. 6 T35. 7 T35:17. 8 T36. 9 T89:38 10 T34. 11 T36. 12 T90, 99 – 100. 13 T36. 14 T102:37. 15 T37. -- 5 of 23 -- [2026] SADC 35 4 another place to live but took a long time so the complainant began to try and find another house.16 Count 1 24 The complainant gave evidence that the accused raped her during an afternoon at the Davoren Park house about one or two weeks after they had separated, which was about mid-October.17 She estimated it happened between 2.00 and 4.00 pm.18 25 The accused was outside cleaning the yard with a pressure hose.19 The complainant asked the accused to come inside so she could have a shower.20 She got upset with the accused, saying she needed more help, asked him to help her with the baby and ‘all the kids in the house or whatever at the time and I was stressed out and, yeah, I was angry at him’.21 She gave evidence that the accused often ignored her when she got upset about that; he went silent. 26 The complainant did not see how much the accused had been drinking that day but described him as ‘very drunk’.22 27 The complainant went into the main bedroom where the baby was asleep on the bed either swaddled with a blanket or in a little sleeping-bag.23 The complainant gave evidence she was likely wearing leggings and a t-shirt because she had just had a baby.24 28 When the accused came into the bedroom ‘it was weird’.25 She tried to talk to him, but he shut the door and did not respond. He came towards her and tried to pull her pants down. She was against the wall where the door opens. She tried to pull her pants up, saying ‘No, we’re not – that’s not – we’re not doing that, I’m not having sex with you’.26 He grabbed her hair, put her against the wall and pulled her pants down. They were then on the bottom left-hand corner of the bed. She felt him doing something to her neck which she later realised ‘was a hickey but it felt like he bit me’.27 She said, ‘don’t you dare’.28 The accused had penile/vaginal intercourse with her for maybe three to four minutes. During the intercourse, she 16 T36. 17 T37 – 38. 18 T90. 19 T91. 20 T92. 21 T38:14-16. 22 T38, 90 – 91. 23 T40. 24 T44:19. 25 T38. 26 T41:25 – 27. 27 T42:21. 28 T42:22. -- 6 of 23 -- [2026] SADC 35 5 was lying on her back, the accused held her arms down and at some point, he started putting pressure on her neck with his arm.29 29 Before the intercourse, the complainant said ‘stop, don’t’ and told him, ‘I don’t want to have sex with you’.30 She also told him that the baby ‘is right there’.31 30 The complainant gave evidence that the ‘kids would have been at school, I think. I don’t remember any of them being there’.32 In cross-examination, the complainant gave evidence she believed her two older girls were at school.33 After count 1 31 The complainant did not tell anyone about count 1: ‘I was incredibly assumed (sic: ashamed) and I didn’t really process it properly, I think. I just shoved it to the back of my head. Like there were so many things happening for me, I had a new baby, I was going through this really traumatic separation and worried about my future and just so much stuff on my plate that that was one of the things that I just pushed aside and don’t even think about that because – ’.34 32 The complainant gave evidence that she started looking for another place to live because the accused was not making much of an effort to do so and she did not feel safe in the house with him. She got approval for a house, but the accused convinced her not to take it saying that the Davoren Park home was bigger and that he would find a house.35 33 In the meantime, the complainant remained sleeping in the bedroom and the accused slept on the couch.36 34 They started talking about arrangements with the children for when the accused moved out and the complainant was ‘pretty heartbroken’.37 The accused was often gone for long periods of time either at work or visiting friends; some nights he did not come home: ‘things weren’t great’.38 Count 2 35 The complainant gave evidence that a week or two after count 1, the accused raped her again. It occurred on 11 November.39 29 T43. 30 T43:22-24. 31 T43:29. 32 T39:3-6;T99:10-11. 33 T90. 34 T45. 35 T44. 36 T45:15-22. 37 T46. 38 T46. 39 T45: T103-104. -- 7 of 23 -- [2026] SADC 35 6 36 They were having an upsetting conversation. The accused said he did not want to be part of the baby’s life. He wanted to just go off, explore things and live his own life. He did not want to be in his other two boys’ lives. The complainant was upset because she really wanted the accused to be part of their baby’s upbringing.40 37 After that discussion, the complainant was in her bedroom texting the accused to clarify their conversation. The accused texted ‘can you please come here?’. The complainant left her room and went to the lounge room. They sat on the couch talking about the earlier conversation. The accused said ‘Yeah, talking about that how about you suck my dick’.41 The complainant said ‘No, I’m not doing that’.42 The accused grabbed her head and forced her to give him oral sex. She pushed herself off him a few times. That lasted between 30 seconds to two minutes. His hands were on her head. He then grabbed her, turned her around onto the couch and started having penile/vaginal intercourse with her from behind.43 He took her underwear down or pulled them across.44 The intercourse lasted five to 10 minutes until he ejaculated inside her. At some point the complainant said ‘No, we’re not doing this’ or ‘No, this is not a good idea. I’m not doing that’.45 38 The complainant went back to her bedroom. She felt helpless or hopeless.46 39 The accused was intoxicated during this incident, but not as intoxicated as the first incident.47 The complainant saw him drinking that day, likely to have started in the morning and be intoxicated by midday, or thereabouts.48 Alleged discreditable sexual conduct 40 The complainant gave evidence that by mid-2020, there were ‘red flags’ during intimacy with the accused.49 The accused was ‘very violent’ and degrading when they had sex. He put her in uncomfortable positions; it hurt a lot to have sex with him. He liked to make sure she could not move her arms or do anything with her hands; for example, he held her hands behind her back or pinned her down with his hands or choked her with his forearm or hand. He slapped her rather than touch her. 41 His behaviour caused her to shut down; part of her dissociated.50 She was embarrassed, ashamed and thought just do what he wants. Sometimes she said 40 T46. 41 T47. 42 T50. 43 T50. 44 T52. 45 T52. 46 T53. 47 T100. 48 T101. 49 T24. 50 T25. -- 8 of 23 -- [2026] SADC 35 7 ‘no’ but that did not really work; he treated it like a game.51 That behaviour went on until she fell pregnant and then resumed with less frequency after the baby was born. She felt embarrassed, confused, ashamed and dirty.52 She did not feel comfortable talking to the accused about it.53 She was worried he might not want to be with her and she loved him.54 Mid-November 2021 to 14 December 2021 42 The accused moved out of the house within a week or so of counts 2 and 3. The complainant told him he had to go; the accused went and stayed somewhere.55 She did not see the accused’s children and the accused did not see her girls.56 The complainant had the care of the baby and was worried that the accused was an alcoholic; she did not think he could care for the baby.57 The accused came to see the baby once and came to the house on another occasion to collect belongings. 58 15 December 2021 – complaint evidence 43 On 15 December 2021, the police attended at the Davoren Park home because a domestic violence incident was reported.59 Senior Constable Maynard-Stagat and Constable Hill attended. No arrests were made. 44 Later that day, the accused went to the police station to report the complainant for an assault involving scratches to his neck60 and then the complainant separately went to the police station for an intervention order. 45 During evidence-in-chief, the complainant said she called the police that day because the accused entered her home, assaulted her (by pushing her up against a doorframe) and took property. 46 In cross-examination, the complainant gave evidence that the accused arrived in a truck, wanting to exchange couches.61 She knew the accused was going to attend at the house that day. The accused unloaded the couch he had on the truck into the front yard and then went inside the house to take the other couch. They had an argument. She was assaulted by the accused when she tried to pull the couch back in and he pushed her into a doorframe. She could not remember if she scratched his neck with her fingernails when he tried to take the microwave.62 51 T26. 52 T28. 53 T28. 54 T29. 55 T53. 56 T54 – 55. 57 T54, T108. 58 T54. 59 T159. 60 T181. 61 T104. 62 T107. -- 9 of 23 -- [2026] SADC 35 8 47 The complainant gave evidence that the attending police officers told her they could not help her because it was word against word. She felt that was not good enough. She did not feel safe and did not want the accused back at the house. She went to the police station to say they had to do something to help her and that she was scared.63 She wanted an intervention order.64 48 The complainant gave evidence that she spoke to police officers at the police station who were not the same officers who had earlier attended at the house.65 She was asked whether the accused had ever been violent with her before and she replied, ‘Only sexually’ and ‘No he hasn’t hit me but sexually he’s been violent’. She could not remember much about what she said because she was ‘very unstable and very upset’.66 49 The complainant agreed in cross-examination that this was the first time she had raised these allegations.67 She could not remember saying that the last time the accused sexually assaulted her was in September 2021.68 She did not want to provide a statement to the police.69 50 Senior Constable Maynard-Stagat gave evidence70 the complainant said she had not told them everything earlier that day and wanted to tell them more about the relationship with her ex-partner. The complainant was visibly upset. She started to cry and was very insistent that she did not want to speak with them about it in public. They went to an interview room with Constable Hill. 51 The complainant said the accused had been sexually abusive; he had forced her to have sex whilst they had been in a relationship together; that he had not ever assaulted her outside of the bedroom and that he had choked her without consent during sex. She was crying and uncomfortable. 52 During cross-examination, Senior Constable Maynard-Stagat gave evidence there was some confusion about whether the relationship ended at the end of September or in October of 2021. Senior Constable Maynard-Stagat left the room to speak to the detectives who then went to speak to the complainant. Senior Constable Maynard-Stagat agreed she wrote in her statement dated 10 January 2024, and now recalls, that the complainant stated that the accused ‘had raped her on multiple occasions during the relationship and that he had assaulted her and been violent during sexual intercourse’.71 63 T71. 64 T110. 65 Other evidence establishes that the complainant spoke to the two police officers who had earlier attended the house (Senior Constable Maynard-Stagat and Constable Hill) and then another police officer who had not earlier attended the house (Detective Cheetham). 66 T71. 67 T101. 68 T110. 69 T111. 70 T158 – 164. 71 T164: 6-15 -- 10 of 23 -- [2026] SADC 35 9 53 Constable Hill gave evidence that the complainant disclosed that the accused had raped her on multiple occasions during the relationship, but Constable Hill could not remember the specifics of the conversation.72 54 Detective Cheetham gave evidence he met with the complainant and made an accurate note of what happened. The complainant explained that she had been forced into sexual encounters with the suspect over a two year period during their relationship. She stated it began to occur approximately three months into their relationship and the last time was in September 2021.73 19 December 2021 55 The complainant was interviewed by the police on 19 December 2021 and commenced her affidavit in relation to these allegations.74 During the recorded interview with Detective Cheetham, it is agreed the complainant said ‘I knew that before I separated from him it happened, because I don’t have a date or a time but I remember being in my room and I remember him pushing. [Name of baby] was on the bed asleep and I remember him pushing me up against the wall and getting really violent and trying to have sex and I got really angry and said ‘Don’t, stop, shh’ and pushed him away and he sort of pushed me onto the bed, pushed me onto my stomach and had sex with me. So there was that, but then that was while we were still together’.75 56 The statements were led as prior inconsistent statements made by the complainant regarding count 1, not for the truth of what was said. I find that the statements to Detective Cheetham were inconsistent with the complainant’s evidence about count 1. The inconsistencies related to the timing of that alleged rape (occurring before they separated rather than after they separated) and one of the circumstances (being pushed onto her stomach rather than onto her back). 57 On 19 December 2021, the complainant also told the police that she had suspicions the accused was sexually interfering with his oldest son.76 I have used that evidence for the sole purpose of considering the defence submission of the complainant’s motive to lie.77 That report to the police has not been used for the truth of the matter or in any way adverse to the accused. Section 34M 58 The prosecution submitted that the evidence of Senior Constable Maynard-Stagat and Constable Hill about what the complainant said at the police station on 15 December 2021 was initial complaint evidence admissible pursuant to s 34M of the Evidence Act 1929 (SA). The prosecution relied upon Senior Constable Maynard-Stagat’s evidence that the complainant said the accused ‘had 72 T168. 73 T178. 74 T173. 75 Exhibit D7, agreed fact 5. 76 T112: 26-34 77 T112:26-33 and T75:31-34. -- 11 of 23 -- [2026] SADC 35 10 forced her to have sex while they’d been in a relationship together’ and Constable Hill’s evidence that the complainant disclosed she had been raped multiple times during the relationship.78 59 The prosecution did not rely upon Detective Cheetham’s evidence of statements made by the complainant on 15 or 19 December 2021 as admissible evidence of an elaboration pursuant to s 34M.79 60 I accept the evidence of the two police officers about their conversation with the complainant on 15 December 2021. They each had limited memories of that conversation. 61 Prior to the close of the prosecution case, submissions were made regarding the admissibility of the evidence.80 I have considered those submissions, including the authorities cited. The defence did not submit the statements made to the two officers were inadmissible. 62 For the statement/s to be admissible pursuant to s 34M as an initial complaint, they must be referable to the charged conduct.81 The statements made by the complainant were of a general nature and encompassed the charged and uncharged discreditable conduct (see [40]-[41]). 63 In R v S, DD,82 the complainant gave evidence about uncharged criminal conduct (indecent assaults, unlawful sexual intercourse) and charged criminal conduct (indecent assault, unlawful sexual intercourse). She complained to a friend, S, that her father had sexually interfered with her. It was submitted on appeal that the complaint was inadmissible because it did not sufficiently refer to an actual charge laid. The Court of Criminal Appeal held that the complaint to S was admissible. Peek J stated that the admissibility of the complaint evidence will very much depend on a close examination of the facts involved. He noted that the evidence may be inadmissible where there is inconsistency between the complaint and the charge when, for example, the complaint includes words which make it clear that reference is being made to other and different sexual offending than that charged.83 64 On the facts of that case, Peek J found that ‘Taking the whole of the evidence at its highest – and ignoring certain other weaknesses of the evidence…- the evidence is capable of establishing a “complaint of a sexual offence” that sufficiently refers to one of the sexual offences that is charged against the appellant – namely count 1 (alleged to be the first episode of offending).’ He continued: 78 T233; T272 – 274. 79 T236. 80 T233 – 242. 81 R v S, DD [2010] SASCFC 80 at [4]; R v Usher [2014] SASCFC 32 at [45]; R v Rippey; Rippey v The King [2022] SASCA 141 at [113]; R v Fragos [2023] SASCA 6 at [47]. 82 R v S, DD [2010] SASCFC 80. 83 At [100], including footnote 30. -- 12 of 23 -- [2026] SADC 35 11 As a general proposition, where there is a complaint made of sexual interference consisting of incidents occurring over a particular time period at a particular place(s), and a number of particular sexual offences are later charged as being some or all of those very incidents complained of, the previous complaint may, for the purpose of admissibility, be taken to refer to the acts the subject of those particular charges that are laid. This approach is necessary because it is usually unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity.84 65 The Court emphasised the importance of the trial judge directing the attention of the jury to the question of whether a link had been established between the complaint evidence and the charged conduct. 66 More recently in R v Rippey; Rippey v The King,85 the Court of Appeal summarised relevant principles regarding the statutory admissibility of complaint evidence: To be admissible under s 34M(3), the complaint must be one that is referable to the charged conduct, and hence capable of demonstrating a degree of consistency of conduct on the part of the complainant.86 However, it is not necessary that the terms of the complaint correspond precisely with the charged conduct.87 Evidence of a complaint about an alleged sexual offence will be an initial complaint, as defined in s 34M(6), and be admissible, despite the complaint not being accompanied by a description of the offending conduct, provided the evidence of the complaint is capable of being probative of the purposes specified in s 34M(4)(a)(i) or s 34M(4)(a)(ii); that is, the evidence is capable of informing the jury as to how the allegation first came to light and is evidence of the consistency of conduct of the complainant.88 67 On 15 December 2021, the complainant referred to the concept of forced sexual intercourse/rape, which incorporates the charged and some of the uncharged conduct.89 The terms of the complaint do not correspond precisely with the charged conduct. The complainant’s reference to the incidents having occurred during the relationship is prima facie inconsistent with her evidence about the timing of the charged conduct (after they had separated) but, arguably, not so inconsistent as to make it clear that she was referring to conduct other than the charged conduct (which would render the evidence inadmissible). On the complainant’s evidence, they were separated but living under the same roof when the charged conduct occurred; the accused moved out of the house later. In those circumstances, a description of the nature of their relationship may be open to some ambiguity. It 84 At [101]. 85 [2022] SASCA 141 at [113]. 86 Weragoda v The Queen [2021] SASCA 123 at [52] (Doyle and David JJA, Stanley AJA); R v T, S (2017) 128 SASR 66 at [130]-[133] (Hinton J, Kelly and Nicholson JJ agreeing); R v S, DD (2010) 109 SASR 46 at [4] (Duggan J, Anderson J agreeing), [98]-[99], [107]-[111] (Peek J). 87 R v El Rifai [2012] SASCFC 98 at [132]-[133] (Kelly J); R v Usher (2014) 119 SASR 22 at [50] (Kourakis CJ, Peek J agreeing); R v P, S [2016] SASCFC 97 at [22]-[24] (Nicholson and Lovell JJ, Parker J agreeing); R v Moores (2017) 128 SASR 340 at [46] (Blue J, Vanstone and Doyle JJ agreeing). 88 R v Landmeter (2015) 121 SASR 522 at [12] (Vanstone and Blue JJ). 89 And the uncharged sexual conduct which the complainant described as ‘very violent’, degrading, causing her to partially shut down and the accused not being deterred when she said ‘no’. -- 13 of 23 -- [2026] SADC 35 12 may be unrealistic to expect the complainant to make a complaint with a high degree of specificity, including the precise status of the relationship. 68 I find the statements are capable of establishing a ‘complaint of a sexual offence’ that sufficiently refers to the charged sexual offences; they are capable of demonstrating a degree of consistency of conduct on the part of the complainant.90 I find they are admissible pursuant to s 34M. 69 The evidence is not admitted as evidence of the truth of what was alleged. Before the evidence may be used for the limited purposes set out in s 34M(4)(a), the court must be satisfied there is a link between what was said and the charged conduct. If so satisfied, the evidence may be used to inform the court as to how the allegations first came to light and as evidence of the degree of the complainant’s consistency of conduct. There may be varied reasons why an alleged victim of a sexual offence makes a complaint of an offence at a particular time or to a particular person. It is otherwise for the court to determine the significance (if any) of the evidence in the circumstances of this case. 70 The complainant told the police that the acts occurred during the relationship. During her evidence, the complainant was clear that the charged conduct occurred when they were living separately under the same roof.91 In closing submissions, the prosecutor submitted that the complainant’s statement to police that the acts occurred during the relationship may be explained by the complainant being ‘extremely heightened’ at the time and that ‘living separately under the same roof’ is a technical separation rather than a blunt separation.92 71 In relation to the separation, the complainant gave evidence about the argument with the accused when she said to the accused “ ‘Well, that’s it’ and I broke it off and said ‘I can’t do this with you any more’ ”.93 In terms of the living arrangements, she described it as ‘very messy because we had obviously lots of kids, you know, and a house together’.94 She did not describe it as the end of their relationship. 72 I find there is the necessary link between what was said and the charged conduct. The complaint to police on 15 December 2021 is evidence of when the allegations first came to light. It may also be used as evidence of the complainant’s ‘consistency of conduct’, although that concept of ‘consistency’ has some difficulties in light of the research that debunks misconceptions about when/to whom a complainant might be ‘expected’ to complain.95 What the complainant said to the police about the acts occurring ‘during the relationship’ may be more inconsistent than consistent with her evidence. The lack of detail in the evidence about the initial complaint is such that I am not prepared to make a finding that is 90 See T240-242 and T242:17-29 for necessary directions and a discussion of the evidence. 91 T136. 92 T275 – 277. 93 T36:28-29. 94 T36. 95 Exhibit P6, [21] – [27]. -- 14 of 23 -- [2026] SADC 35 13 favourable or adverse to the complainant on this topic. There may be several reasons for the insufficient detail, including the vague recollection of the two police officers and the fact that the complainant was not intending to proceed with criminal charges at the time. I have not attributed much significance to the complaint evidence other than to show when and how the allegations first came to light. 73 The fact of the complainant’s attendance at the police station on 15 December 2021 and what she said is also relevant to a consideration of the defence submission of the complainant’s motive to lie.96 I have not used the evidence of what she said for the truth of what was said. Mid-January 2022 74 In mid-January 2022, the complainant advised the police she did not want to proceed with allegations against the accused.97 She gave evidence that she was feeling guilty and bad because she knew the accused would get into a lot of trouble and his two children would lose their dad.98 February to May 2022 75 In February 2022, the complainant went to see the accused’s ex-partner who wanted to give the baby some Christmas presents. The accused was there and saw the baby, but the complainant did not talk with the accused.99 76 The complainant gave evidence that the accused then started to text her, showed more interest in the baby and suggested they go on a date. She gave evidence that it was like ‘a double-edged sword’. She still loved him, they had a child together and her children missed him. However, she had a ‘lot of shame and embarrassment’ and did not want her friends to know that she was going to meet up with him.100 She went to the accused’s home, and he saw the baby a few times before she agreed to go out alone with the accused.101 77 The complainant gave evidence about a conversation she had with the accused about the charged conduct. She spoke to the accused about the topic on one of the occasions when he saw the baby prior to them going out on a date. She told him, ‘You really hurt me and you’re very lucky because you could have got in a lot of trouble’. She told him she went to the police. He said, ‘so did I’. The complainant gave evidence she thought the accused was confused and was referring to the ‘incident where he came to my house and assaulted me and took furniture’.102 She told him she was not talking about that day but was ‘talking about the rapes’. He asked ‘What? What do you mean?’. He looked shocked. She said 96 See T74:35 – T75:5; see [105]-[108] below. 97 T111 – 112. 98 T154. 99 T55, 112. 100 T56. 101 T56. 102 T58. -- 15 of 23 -- [2026] SADC 35 14 to him, ‘Yeah, like, I talked to the police and what you did is – that’s rape. Like, you raped me and you know I didn’t want to have sex and you still did it’. He said, ‘I’m sorry’ and ‘I didn’t know it was like that for you’. She said ‘Yeah, well you really need to be careful because you’re going to hurt people if you don’t realise, like, what’s okay and what’s not’. The accused said ‘Yeah, that’s why I don’t drink anymore’.103 78 By April/May 2022, the accused and his two children had moved back in to live at the Davoren Park house.104 The complainant gave evidence that she was ‘really struggling’.105 She had four children, was studying for a diploma and working two jobs. She was vulnerable, low and did not have enough money or support. All the children had been pretty close. When the accused moved back in, his drinking was almost non-existent, and their relationship was ‘probably at the best it had ever been.106 79 In September 2022, they all moved to another address in Davoren Park.107 The complainant gave evidence her relationship with the accused began to go downhill again by that stage.108 The children kept the relationship going.109 May to July 2023 80 The complainant gave evidence the accused became involved in her business in May or June 2023. She had commenced her own business in March 2022. However, she also gave evidence their relationship was deteriorating by June or July 2023, ‘like massive deterioration’.110 The complainant gave evidence her daughter disclosed to her that the accused had sexually assaulted her.111 August to December 2023 81 In late August 2023, the complainant and accused recorded a podcast to promote the business.112 They talked about their relationship in positive terms, but the complainant gave evidence that was a bit of a façade. 82 The relationship between the complainant and the accused ended in September/October 2023.113 The complainant moved out.114 The children remained living in the house, except for the complainant’s eldest child who chose to stay with the accused’s grandmother.115 103 T58, 112 – 113. 104 T115. 105 T59. 106 T59. 107 T115. 108 T116. 109 T61. 110 T121. 111 T127. 112 T118. 113 T116, 121. 114 T121. 115 T122. -- 16 of 23 -- [2026] SADC 35 15 83 By the beginning of November 2023, the complainant had a new partner.116 84 On 16 November 2023, the complainant and her partner went to the house. The complainant asked the accused to leave the house when she had her week with the children. They had 50/50 care of the children.117 It is an agreed fact that on 31 March 2025, the complainant’s boyfriend pleaded guilty to assaulting the accused on 16 November 2023.118 The complainant gave evidence she was not really part of the altercation between her new partner and the accused.119 85 At some stage after 27 November 2023, the complainant attended at the house to collect a bookcase. The complainant eventually agreed in cross-examination that she asked the accused to look after her daughter (who had months earlier alleged the accused sexually abused her) that night. She left her daughter there but then turned back after a few minutes and picked her up.120 86 The co-parenting relationship deteriorated.121 The accused wanted 50/50 care of the baby. 87 In November 2023, the accused made a police report that the complainant was making threats against him.122 88 In November 2023, the police investigation into these allegations was re-opened.123 89 In December 2023, the complainant instituted Family Court proceedings regarding custody of their son but proceedings ceased in mid-2024 when legal aid stopped funding the case.124 90 On 29 December 2023, the complainant reported the accused for sexually interfering with her daughter.125 In cross-examination, the complainant admitted that she probably told her friend that she was going to destroy the accused and hopefully put him in prison.126 She denied fabricating that allegation to retain full custody of the baby.127 Expert evidence 91 The prosecution called evidence pursuant to s 34N(2a) of the Evidence Act 1929 (SA), which provides that a court may, in a trial of a charge of a sexual 116 T122. 117 T123. 118 Exhibit D7. 119 T124. 120 T151; Exhibit D4. 121 T124. 122 T181. 123 T174. 124 T128; 154. 125 T127. 126 T128. 127 T150. -- 17 of 23 -- [2026] SADC 35 16 offence, receive expert evidence about any matter referred to in that section. Section 34N(1) requires a trial judge to give certain directions to a jury in a trial of a charge of a sexual offence where lack of consent in relation to a particular sexual activity is in issue. The purpose of the directions and/or expert evidence is to address misconceptions about non-consensual sexual activity. 92 The prosecution called Professor Goodman-Delahunty and tendered her report dated 31 March 2025.128 93 Professor Goodman-Delahunty did not interview the complainant nor did she express opinions regarding the complainant’s evidence of non-consent to the sexual intercourse the subject of the charges. The purpose of her evidence, if accepted, was to ensure that the credibility and reliability of the complainant’s evidence about non-consensual sexual activity was not assessed according to outdated concepts about such activity. Her expertise in this area arises from her extensive professional research on this topic since the 1980s and familiarity with the research of others.129 94 There was no objection to Professor Goodman-Delahunty’s expertise or the admissibility of her opinions. 95 I found Professor Goodman-Delahunty to be a qualified expert for the purpose of giving evidence pursuant to s 34N(2a) and have accepted her evidence for the limited purpose described above. I have not reasoned from the evidence that because the prosecution case accords, or may accord, with various circumstances described in her evidence that the alleged sexual acts were more likely to have occurred or to be non-consensual. Discussion 96 The prosecution case relies upon the complainant’s evidence to prove each of the charges beyond reasonable doubt. She is a direct eyewitness to the charged acts. I must assess her credibility and reliability. 97 I have considered all the evidence. I have considered each charge separately. 98 The prosecution described the complainant as a frank and sincere witness. For example, she was being frank when she admitted her infatuation with the accused during the relationship, when she agreed that she may have told her friend that she was going to destroy him (following allegations she says were made by her daughter about the accused) and that she may have scratched his neck with her fingernails on 15 December 2021.130 I agree with the prosecution’s observations about the complainant’s preparedness to make concessions. She presented as a frank and sincere witness. 128 Exhibit P6. 129 Exhibit P5 (CV); T192 – 197. 130 T253 – 254. -- 18 of 23 -- [2026] SADC 35 17 99 The prosecutor referred to the complainant’s demeanour during her evidence, submitting that the complainant displayed very genuine feelings at some of the more difficult parts of her evidence. It was submitted that demeanour is not determinative, but the complainant’s feelings were consistent with what one would expect, given the evidence she was giving. In my view, there is a difficulty with placing much weight on displays of emotion that may be ‘expected’. As stated in s 34N(1)(d), trauma may affect people differently, which means that some people may show obvious signs of emotion or distress when giving evidence in court about an alleged sexual offence but others may not; and the presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence. In my view, it does not necessarily mean that a person is telling the truth either. There was nothing in the complainant’s demeanour that caused me concern about her credibility or reliability. 100 In accordance with s 34N, I have assessed the credibility of the complainant’s evidence on the basis that there is no typical or normal response to non-consensual sexual activity. She is not to be regarded as having consented to sexual activity on the charged occasions merely because she had previously been in a relationship with the accused during which she had freely and voluntarily agreed to sexual activity with him. Injury, physical resistance or protest is not required to prove a lack of consent to sexual activity. A person is not to be regarded as having consented to the charged sexual activity merely because she did not say or do anything to indicate she did not freely and voluntarily agree. The complainant gave evidence that she did tell the accused she was not consenting. She told the accused ‘no’ on both occasions. She also gave evidence that she physically resisted him pulling down her pants (count 1) and pushed him off a few times (count 2). 101 The fact the complainant continued to live with the accused under the same roof after count 1 and then after counts 2 and 3 is not a matter that I considered to be adverse to the credibility of her evidence that she did not consent to that sexual intercourse. Nor are the facts that she told the police she did not wish to proceed with charges or that she subsequently reunited with the accused. I accept the evidence of Dr Goodman-Delahunty that research shows it to be a misconception that a victim of domestic abuse will leave their home.131 Instead, maintaining or continuing a relationship with the alleged offender, including a sexual relationship, is common; the violence may be intermingled with conduct that appears affectionate and women may feel ongoing affection for the offender. Women may tolerate the behaviour in the interests of preserving the family unit, out of concerns for the welfare of the children and/or because of a lack of alternative accommodation and inadequate financial resources.132 The complainant gave evidence reflecting those issues.133 That does not make it more likely that she was raped and the evidence must not be, and has not been, used for that line of 131 Exhibit P6, [20]. 132 Exhibit P6, [32], [38], [51]; T201, 205 – 206, 208 – 211. 133 T45 – 46; 53 – 54; 56, 59. -- 19 of 23 -- [2026] SADC 35 18 reasoning. It does mean that her evidence has not been assessed according to misconceptions about expected behaviours of women who allege sexual assault, particularly in domestic relationships. 102 In addition to evidence about the charged offences, evidence about uncharged discreditable sexual conduct (see [40]-[41]) was admitted pursuant to s 34P(2)(a). I have not used that evidence to reason simplistically that merely because the accused has, or may have, done bad things in the past, he is a bad person, and therefore the sort of person who is more likely to have committed the charged offences. If proved, the evidence may only be used for limited purposes. The discreditable conduct evidence may put the charged conduct in context in the sense that the charged conduct was not isolated nor did it occur out of the blue. 134 The prior conduct demonstrates that the accused had previously resorted to sexual violence and shown little regard for the complainant’s feelings of safety. It may also explain why the accused may have been emboldened to act as he did on the charged occasions, knowing that there had been no complaint following the uncharged conduct.135 It may also enable the complainant to fully explain her response to the conduct the subject of counts 2 and 3: ‘So obviously this had happened before and I’d already – I’d been through, you know, two years or a year or whatever of a sexually violent relationship with this man and I just was, I don’t know, like dissociated’.136 103 The complainant gave evidence that the accused engaged in other discreditable conduct, including that he had an affair,137 that he smoked cannabis,138 and that she reported him for sexually abusing his own son139 and one of the complainant’s daughters.140 I have not used the evidence of that discreditable conduct to reason simplistically that merely because the accused has, or may have, done bad things in the past, he is a bad person, and therefore the sort of person who is more likely to have committed the charged offences. The evidence may only be used for limited purposes. 104 The complainant’s evidence that the accused had an affair and smoked cannabis may only be used as examples of why the complainant considered their relationship to be ‘on and off’. 105 There is no evidence that the accused sexually abused his son or one of the complainant’s daughters, nor is there any relevance to the truth of the allegations. The only use that may be made of the evidence on that topic lies in the fact the complainant reported those allegations to the police and the timing of those reports. The evidence was elicited in cross-examination. The defence submitted the complainant’s allegations were nothing more than an attempt to get custody of 134 T261. 135 T16 – 17. 136 T52 – 53. 137 T114. 138 T60. 139 T112. 140 T127. -- 20 of 23 -- [2026] SADC 35 19 their baby son and to ‘destroy’ the accused.141 It was submitted that there is ‘a somewhat remarkable symmetry’ between the complainant’s actions in December 2021 and November 2023.142 On both occasions, there was an issue about custody of the baby; the accused had alleged an assault upon him by the complainant (2021) and by the complainant’s partner (2023) and days later, the complainant made allegations against the accused that he sexually assaulted his son (2021) and her daughter (2023). 106 It was submitted that the complainant’s allegation of sexual abuse upon her daughter was implausible. On the complainant’s evidence, her daughter had reported the abuse to her in July 2023, but no police report was made until December 2023. It was submitted that the complainant’s evidence that she was in denial about her daughter’s allegation from July 2023 lacked credibility because she had made prior allegations the accused had sexually interfered with his son. It was further submitted that the complainant’s denials that she would leave her daughter with the accused post July 2023 were proved to be untrue based on the video footage in December 2023.143 107 The defence has raised a motive on the part of the complainant to lie but 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 these allegations. The prosecution must prove the complainant’s evidence is credible, reliable and acceptable to the standard of beyond reasonable doubt. 108 The complainant’s delay in acting upon or reporting the allegation she says her daughter made in July 2023 would be very concerning in an ideal world but needs to be considered in the context of the prosecution case that the complainant was in an allegedly abusive relationship at the time and had some deep-seated strong emotions in favour of the accused. The text the complainant sent to the accused on 7 October 2023 (‘God, I love you…you’re my fucking world. You meant everything to me…’)144 could be viewed as entirely inconsistent with her daughter having made such a complaint some three months earlier or it could be viewed as a text from someone who had become completely dependent upon her relationship with the accused. The complainant admitted that she did not want to believe her daughter.145 109 The defence made a compelling submission about the symmetry of events in 2021 and 2023, but it is not that evidence that has caused me to have doubt about the complainant’s evidence about the charged offending. The accused’s employment records have caused me to doubt the credibility and reliability of the 141 T306. 142 T305 – 306. 143 Exhibit D4. 144 Exhibit D2. 145 T127 – 8. -- 21 of 23 -- [2026] SADC 35 20 complainant’s evidence about the accused’s alcohol consumption during the relevant period, which is a key part of the context for the charged offending. Employment records 110 It is an agreed fact that on 31 May 2021, the accused commenced working as a truck driver for an employer based in Windsor Gardens.146 The parties agreed shift dates and times that were relevant to the allegations. The accused worked every weekday from Monday, 11 October to Wednesday, 3 November 2021; then from Tuesday, 9 November to Friday, 19 November 2021. His shifts usually started at 7.00 am; one started at 7.15 am, one at 7.30 am, two at 8.00 am and one at 8.15 am. He finished his shifts at times ranging from 1.00 pm to 7.30 pm.147 111 In cross-examination, the complainant disagreed with the suggestion that during October 2021 the accused worked full-time in Windsor Gardens, leaving home before 7.00 am and not arriving home until 4.00 pm.148 She conceded that he may have worked on 11 November because the incident (counts 2 and 3) happened later on that day.149 112 The evidence of the accused’s employment was not led as alibi evidence. It was not submitted by the defence that the accused was at work and therefore he could not have committed the alleged offences. 113 Rather, the evidence throws significant doubt on the complainant’s evidence that the accused was drinking like an alcoholic practically every day during the relevant period. The complainant gave evidence that his drinking began in late 2020 and grew worse during 2021. By October 2021, he was drinking heavily almost every day and was intoxicated by midday or thereabouts: see [20]-[22]. In accordance with that drinking pattern, the complainant’s evidence was that the accused was intoxicated on the occasion the subject of count 1 (mid-October 2021) and on the occasion the subject of counts 2 and 3 (11 November 2021), although less so. The accused’s drinking pattern was a key component of the complainant’s evidence about their relationship generally, the alleged offending in particular, and a significant factor in her decision to reunite with the accused in 2022 (because he had stopped drinking). 114 The complainant’s evidence on this topic cannot be reconciled with the agreed facts about the accused’s employment. Her evidence on this topic is unreliable and lacks credibility. Put simply, the accused could not have been drinking at home practically every day and intoxicated by midday in October and November 2021 as the complainant described; he was in fact usually at work by 7.00 am and did not get home until the afternoon. 146 Exhibit D7. 147 Exhibit D7. 148 T133. 149 T133. -- 22 of 23 -- [2026] SADC 35 21 115 The complainant was adamant that the offending occurred in October and November 2021. She was cross-examined about prior inconsistent statements she made to Detective Cheetham on 15 and 19 December 2021 about the timing of the alleged offending. She told Detective Cheetham that the forced sexual encounters with the accused ended in September 2021. When those prior inconsistent statements were put to her during cross-examination, she did not adopt them but instead disavowed their accuracy. She gave evidence that the offending could not have occurred in September 2021 because it was too close to the birth of her son and she would have remembered if she was still postpartum bleeding.150 116 The prosecution submitted it is understandable that at that time in her life the complainant might have an imperfect memory of how many days a week the accused was drinking. It was an extremely busy household full of children, and she had an infant who was only weeks old. When they separated, she was not keeping tabs on his movements. The complainant described the accused’s work history during the relationship as very on and off with him changing jobs often. If she had a flawed recollection of the accused drinking to intoxication seven days a week as opposed to drinking to intoxication on days he was not working, that might not cause doubt about her reliability and credibility.151 117 One difficulty with that submission is that the complainant’s evidence was not that the accused’s drinking behaviour occurred only on days when he was not working. Another difficulty is that the agreed facts prove that the accused worked almost every weekday from 11 October 2021 to 19 November 2021, so there were effectively only weekends when he could have been drinking from 11.00 am at home as described by the complainant. The complainant did not give evidence the drinking excessively was limited to weekends. I do not consider her evidence is open to a finding that she is simply mistaken about the number of days per week that the accused was drinking. Her evidence was that the accused developed a drinking problem over a year from late 2020 through to late 2021; he was intoxicated practically every day by 12.00 noon or 2.00 pm in October and November 2021. 118 The significant discrepancy between the work records and the complainant’s evidence about the accused’s drinking behaviour for the relevant period of time leaves me not knowing where the truth lies about the charged offending. The prosecution has not proved the first element of each offence. The prosecution has not proved any of the offences to the standard of beyond reasonable doubt. Verdict 119 I find the accused not guilty of counts 1, 2 and 3. 150 T136:26-31 151 T289 – 290. -- 23 of 23 --