[2025] SADC 27

Prosecution: R Counsel: MR G DUDZINSKI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: MAA Counsel: MR P MORRISON - Solicitor: CALDICOTT & ISAACS LAWYERS Hearing Date/s: 25/02/2025, 26/02/2025, 27/02/2025 File No/s: DCCRM-24-039511 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 MAA Criminal Trial by Judge Alone [2025] SADC 27 Reasons for the Verdict of her Honour Judge Schammer 28 March 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES CRIMINAL LAW - EVIDENCE - COMPLAINTS The accused, MAA, is charged on Information dated 30 October 2024 with one count of unlawful sexual intercourse with BBK, a person under the age of 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act). BBK (DOB: 16 June 2007) is the daughter of the accused’s former wife, CA. The accused and CA married in November 2011 and separated in 2014. BBK alleges that between 1 January 2014 and 15 June 2015, when she was aged either six or seven and after CA and the accused had separated, she went with the accused and her two younger half- brothers, to stay at the accused’s friends’ house in Moonta Bay (the visit). BBK claims that during the visit, she and the accused slept in the same room, on a mattress on the floor, whereas her two younger half-brothers slept elsewhere. BBK alleges that she went to bed before the accused and woke up later to the feeling of the accused’s fingers inside her vagina (the alleged offending). BBK disclosed the alleged offending to a primary school friend, SC, several years thereafter. BBK gave very succinct evidence, largely confined to the specific details of the offending. There was some inconsistency in aspects of her account, albeit mostly with respect to peripheral matters. However, the fact BBK gave limited evidence with respect to other ancillary matters made it difficult for both the Court to properly assess and the accused to properly test, the reliability of BBK’s account of the alleged offending. -- 1 of 37 -- The passage of time since the alleged offending and the trial meant that other witnesses were unable to give evidence relevant to specific issues such as opportunity. There was significant forensic disadvantage to the accused. Verdict: Not guilty. Criminal Law Consolidation Act 1935 (SA) ss 5, 49(1); Juries Act 1927 (SA) s 7(1); Evidence Act 1929 (SA) ss 29C, 34M, referred to. R v S, DD (2010) 109 SASR 46; R v Rippey, Rippey v The King [2022] SASC 141; R v Usher (2014) 119 SASR 22; Robinson v The Queen (1999) 197 CLR 162; R v Corrigan (1998) 74 SASR 545, considered. -- 2 of 37 -- R v MAA [2025] SADC 27 [Criminal] Introduction 1 The accused, MAA, is charged on Information dated 30 October 2024 with one count of unlawful sexual intercourse with BBK, a person under the age of 14, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act). 2 BBK (DOB: 16 June 2007)1 is the daughter of the accused’s former wife, CA. The accused (DOB: 12 November 1982)2 met CA in about 2009 and married CA on 12 November 2011. The accused and CA separated in 2014.3 As such, the accused was BBK’s step-father for a period of about five years from about 2009 to 2014. 3 BBK alleges that between 1 January 2014 and 15 June 2015, when she was aged either six or seven and after CA and the accused had separated, she went with the accused and her two younger half-brothers, JA (DOB: 10 September 2010) and CA (DOB: 20 January 2013),4 to stay at Moonta Bay on a Friday night. They stayed at the home of one of the accused’s friends. BBK recalls sleeping in the same room as the accused, on a mattress on the floor. She alleges that on that Friday night, she went to bed before the accused and woke up sometime later to the feeling of the accused’s fingers inside her vagina (the alleged offending). 4 The accused elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. Elements of the Offence 5 The prosecution must prove the following two elements of the offence beyond reasonable doubt: 1. The accused had sexual intercourse with BBK; and 2. BBK was under the age of 14 years at the time. 6 Sexual intercourse is defined to include any activity consisting of or involving penetration of a person’s vagina, labia majora or anus by any part of the body of another person; or fellatio; or cunnilingus.5 It includes penetration of a person’s vagina by another person’s finger or fingers. 1 Exhibit P5 at [1]. 2 Ibid at [2]. 3 Ibid at [3]. 4 Ibid at [4]. 5 Section 5 of the Act. -- 3 of 37 -- [2025] SADC 27 2 7 There is no dispute that BBK was under the age of 14 at the time of the alleged offending. It is the first element of the offence which was in dispute at trial. Legal Directions General 8 The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The prosecution must prove the elements of the offence beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. 9 BBK’s evidence is critical to the prosecution case and I must scrutinise her evidence with great care. The accused cannot be found guilty unless I accept BBK’s evidence beyond reasonable doubt. 10 The accused elected not to give evidence at the trial. In doing so, he was exercising his right to silence. I must not draw any adverse inference against the accused for exercising that right. He was entitled to put the prosecution to proof and if the prosecution is unable to prove its case, then the accused is entitled to a verdict of not guilty. 11 The trial occurred some ten years after the alleged offending. As will be further outlined, BBK’s evidence was brief. She was unable to recall many of the matters peripheral to the alleged offending. Ben Christian had only a very vague recollection of the time the accused, BBK, JA and CA came to stay at his Moonta Bay home. Jade Christian cannot recall anything that occurred during that visit. 12 I am satisfied that because of the delay between the alleged offending and trial, the accused has suffered a significant forensic disadvantage,6 being something that must be taken into account when scrutinising the evidence. 13 The accused does not have any prior criminal convictions.7 This makes it less likely that the accused committed the alleged offence, noting, of course, that persons previously of good character can and do commit crimes for the first time. 14 When BBK gave her evidence, she was accompanied by a Court companion, her evidence was recorded and the Court was closed. SC and Dr Kenny gave their evidence by audio-visual link. I must not draw any inference adverse to the accused or view the evidence of those witnesses in a different light, because of these arrangements. 15 In these reasons, when I use the words ‘proved’ or ‘established’, I mean to a standard of beyond reasonable doubt. If I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where 6 As to the nature of that disadvantage, see discussion and analysis at [177]-[187] and [237]-[242] herein. 7 Ibid at [5]. -- 4 of 37 -- [2025] SADC 27 3 the truth lies, then I must find the charge has not been proven beyond reasonable doubt. 16 I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence. 17 As to the making of inferences, I must not guess or speculate. There must be a logical and rational connection between the facts I find and the inferences I draw. 18 I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and must not be influenced by public opinion in relation to this matter. Complaint Evidence 19 BBK gave evidence that the first person she told about the alleged offending was a friend, SC, with whom she went to primary school. Both BBK and SC gave evidence of the circumstances of this disclosure. 20 The evidence was admitted over the objection of the accused.8 21 BBK gave evidence that when she was in either Grade 3 or 4 at SJ School in Renmark, she had a deep and meaningful conversation with SC in the school playground on the yellow slide. They spoke about some problems they were having in their lives and things that were making them sad. Although BBK could not recall precisely what she told SC, or the words that she used, the gist of what she told SC was that she was molested when she was aged seven. She could not recall if she told SC any further details about the alleged offending. SC had said to her that she should tell someone.9 She was not upset during the conversation.10 22 SC gave evidence that she met BBK at SJ School in Renmark. When she was in either Year 6 or 7 and BBK was in either Year 5 or 6, she had a conversation with BBK at school when they were sitting outside. She could not remember how the conversation came about but she remembered BBK telling her that something bad had happened to her. She could not recall specifically what that was or what words were said but described this as a pretty intense conversation for their age. From what BBK had told her, she assumed that BBK was telling her that some sort of abuse had happened in her life. She did not remember BBK being upset during the conversation, nor could she recall what she had said to BBK in response. 23 Evidence of complaint is admissible pursuant to s 34M of the Evidence Act 1929 (SA), only if it is capable of: 8 FDN 38 at [1], FDN 40 at [5]-[18]. 9 T 24.10-35. 10 T 45.28-30. -- 5 of 37 -- [2025] SADC 27 4 • informing the trier of fact as to how the allegation first came to light; and • revealing consistency of conduct on the part of the complainant.11 24 Complaint evidence is not capable of demonstrating consistency of conduct in relation to a charged count if it is not referable to that charged count. This does not mean the complaint evidence must correspond, to a high degree of specificity, with the charged conduct. However, if the evidence relates to other incidents which are not the subject of the charge, it will not be referable to the charge and generally will be inadmissible. Where there are some discrepancies in the details of what is disclosed and the details of the charged conduct, those discrepancies are generally not relevant to the admissibility of the evidence but will influence what directions must be given as to the use that might be made of that evidence. 25 The accused contended that the evidence sought to be led as initial complaint evidence, was simply too vague as to constitute a complaint of a sexual offence or of being referable to the alleged offending. 26 Although BKK recalled saying to SC words to the effect that she had been molested at age seven, SC’s recollection was that what BKK disclosed to her was of something bad that had happened, which she assumed was ‘abuse’. She did not go further and recall that as being sexual abuse. In addition, nothing was said on either witness’s account, as to who was the perpetrator of the abuse. 27 Counsel relied upon what was said by the Court of Appeal in R v Rippey, Rippey v The King, namely:12 Of course, there will be some cases in which the terms of the complaint simply do not correspond at all to any aspect of the charged conduct, with the result that the complaint is not referable to the charged conduct and hence not admissible. In elaborating upon the requirement that the complaint be referable to the charged conduct, Peek J in R v S, DD identified some circumstances in which an objection to admissibility might succeed:13 Such an argument may succeed where there is inconsistency between the complaint and the charge such as if a complaint includes words which make it clear that reference is being made to other and different sexual offending than that charged. As an example, a complaint in the year 2010 of sexual intercourse at Victor Harbor in the year 2000 could not be admissible under s 34M (that is, as complaint evidence) in relation to a charge of an offence against the same complainant but occurring at Adelaide in 2005. Similarly, a complaint constituting a specific and definite allegation of a precise type of sexual offending, say anal intercourse without consent, could not be admissible under s 34M in relation to a charge of oral intercourse. Further, a statement may be so vague that it does not constitute a “complaint of a sexual offence” on its face at all. For example, statements such as “my father upsets me” or “I hate my father” may, on the prosecution case, be made by a complainant 11 R v S, DD (2010) 109 SASR 46 at [4] (Duggan J, Anderson J agreeing), [98]-[99], [107]-[111] (Peek J). 12 [2022] SASC 141 at [116]. 13 R v S, DD (2010) 109 SASR 46 at [100] (footnote 30) (Peek J); referred to in R v Usher (2014) 119 SASR 22 at [52] (Kourakis CJ, Peek J agreeing). -- 6 of 37 -- [2025] SADC 27 5 because of sexual interference, and in response to it, but they simply do not satisfy a minimal objective standard of a “complaint of a sexual offence”. 28 It was submitted that this was apposite to the circumstances of the purported complaint evidence in this case. 29 There was no suggestion that BKK had been the victim of any prior or subsequent sexual abuse, nor any evidence that she had been the victim of any other type of abuse (ie physical or emotional abuse). 30 While there was some questioning directed to BBK as to how she could be certain the accused was the person who had done these things to her, this was not a case based on any purported mistake as to the identity of the alleged offender. Rather, the defence case was that the alleged offending simply did not happen. 31 There were some discrepancies in the recollections of SC and BBK as to when the alleged disclosure occurred and precisely what was said. Notwithstanding those discrepancies, I am satisfied that both BBK and SC were giving evidence of the same conversation. 32 Precisely what words BBK used are unknown. However, BBK was clear that the gist of what she told SC was that she had been molested at age seven. SC assumed from what BKK told her was that she was telling her she had been abused. Notwithstanding she did not go further and say she assumed that abuse to be sexual, taking the evidence at its highest it can be assumed that this was the case. For example, she did not say that she thought BKK was telling her she had been hit or bashed or beaten. It was a serious conversation. It was obviously of such moment that SC now recalls the fact of the conversation, many years later. 33 I am satisfied that what BBK disclosed to SC was referable to the charged count. I am satisfied that the evidence, taken at its highest, demonstrates some consistency in BBK’s account, both as to what was said and in terms of the circumstances in which the complaint was made (that is, a few years after the alleged offending, when BBK was several years more mature, to a trusted friend, when discussing matters which were important and of concern to them). 34 I am satisfied the evidence is admissible pursuant to s 34M of the EA. 35 The evidence was admitted, both to inform me as to how the allegation first came to light and as evidence of the degree of consistency of BBK’s conduct. The evidence is not admitted as evidence of the truth of BBK’s allegations of the offending. It cannot be used as some form of independent evidence to prove what happened or to bolster BBK’s account. 36 There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is a matter for me as the trier of fact, to determine the significance of the complaint evidence in the circumstances of this case. -- 7 of 37 -- [2025] SADC 27 6 Witnesses and Exhibits 37 The prosecution called evidence from BBK and the following witnesses: • SC, who gave initial complaint evidence; • Mr Ben Christian; • Mrs Jade Christian; and • Dr Dianna Kenny, Consultant Psychologist, who gave expert evidence as to the impact of trauma on memory and how victims of child sexual abuse may respond and be impacted by such abuse. 38 Exhibits were tendered including a Statement of Agreed Facts.14 39 The accused elected not to present any evidence. The Evidence Complainant’s Evidence Background Matters 40 BBK gave evidence that the accused first came into her life when she was aged about two or three, when he commenced a relationship with her mother.15 Although the accused spent some time away from home working in the mines, when he was home he would take her to school, dress her and put her to bed. Occasionally he would make the dinner. She called the accused ‘dad’ when she was growing up and he was a father figure to her.16 41 The accused and BBK’s mother had two children during their relationship, JA and CA. BBK gave evidence that she was about three when JA was born and about six when CA was born. She agreed that after her half-brothers were born, the accused had to focus more of his attention on them, rather than her. She disagreed with propositions put to her that she found this change hard and that she would act out to get attention once the baby came along.17 42 While CA and the accused were together, the accused was BBK’s primary disciplinarian. He would tell her off and send her to her room. She could not remember if, when he did that, she would say things like, ‘You are not my dad and I don’t need to listen to you’.18 14 Exhibit P5. 15 T 15.7. 16 T 25.19-26.11. 17 T 26.14-27.3. 18 T 27.4-18. -- 8 of 37 -- [2025] SADC 27 7 43 In 2013 and therefore when BBK was aged about six, her biological father came back into her life. At that time the accused took a step back from parenting her and she had less to do with him, even though she was still living with him.19 44 It was an agreed fact that the accused and CA separated in 2014. BBK gave evidence that after the break-up, the accused moved out of their house. She agreed with a proposition that he did not see any of the children for a few months after the break-up and that she had no contact with him during that same period.20 Thereafter, the accused started coming back to see her half-brothers and would often take the boys away with him. Sometimes he would also take her away with him. BBK gave evidence that she did not feel left out when the accused only took the boys away with him, explaining that she was happy to spend time with her mum.21 Complainant’s Schooling 45 BBK gave evidence that she attended two different primary schools, one in Renmark (SJ School) and one in Mildura from Year 6. When asked if she had attended any other primary schools, BBK hesitated and said she could not remember.22 46 It was agreed that BBK started school at SJ School in Renmark in 2012 and completed Reception and Grade 1. In January 2015, BBK commenced Year 2 at the same school. Her last day at SJ School was on 7 December 2018, when she was in Year 5. Thereafter, BBK transferred to a school in Mildura, where she commenced Year 6 in January 2019.23 Trip to Moonta Bay 47 BBK gave evidence that when she was aged seven and after her mother and the accused had separated, the accused took her, JA and CA on a trip to Moonta Bay, without her mother. 48 BBK could not recall precisely when this trip occurred, or what time of the year it was, but she was certain it was on a weekend (and specifically that they left on a Friday) because ‘we would like swap in seeing each parent every weekend’.24 She could not remember where she was living at the time.25 49 The accused drove them to Moonta Bay in his car. She could not recall what type of car this was.26 The purpose of the trip was to catch up with some of the 19 T 27.25-35. 20 T 28.19-32. 21 T 28.38-29.29. 22 T 14.7-15. 23 Exhibit P5 at [6]-[8]. 24 T 16.18-24. 25 T 26-28. 26 T 31.29-33. -- 9 of 37 -- [2025] SADC 27 8 accused’s friends who lived in Moonta Bay. She did not know their names but recalled they had two children, one of whom was a baby.27 50 BBK gave evidence that when they arrived at the friends’ house, she and her brothers started playing with the kids. She recalled the accused being out the back, with his friends, drinking beer, while she was inside, playing with the kids.28 51 As to the sleeping arrangements, BBK gave evidence that JA and CA shared with the other kids in their room, where there were bunk beds and a lot of toys. She slept on a mattress on the floor of a room next to the kids’ bedroom. In cross- examination, she denied that the mattress was one that came from a cot. She said it was a normal, single mattress.29 52 BBK remembered there being a clothes dresser against the wall in the room she slept in.30 She could not remember what the room looked like or described any of the blankets in the room.31 53 BBK had previously drawn two plans of the house where she stayed in Moonta Bay. The first plan was drawn at the time she conducted a prescribed interview with police on 23 June 2021.32 The second plan was drawn more recently on 17 August 2024.33 The first plan only depicted two rooms - the room she slept in and the kids’ bedroom. BBK agreed that at the time she drew the first plan she had told the police she could not recall where the toilet was.34 54 The second plan included additional details that BBK could remember of the house at that time, including the position of the toilet, kitchen, dining room and backyard. She could not remember if there were other rooms in the house.35 She could not remember if there was another room in the house adjacent to the room where she slept.36 55 BBK could not remember going outside at all but said she could see the accused and his friends drinking in the backyard through a big glass door leading outside from the dining room (as marked on the plan).37 The Alleged Offending 56 BBK gave evidence that she went to bed that Friday night wearing long pyjama bottoms, a pyjama top and underwear. She slept on the side of the mattress 27 T 15.28-16.7; T 16.30-31; T 33.23-26. 28 T 16.25-17.10. 29 T 37.6-29. 30 T 17.11-22; T 18.4-10. Noting BBK agreed that when she made her statement on 23 June 2021, she had told the police that she could not remember what was in the bedroom; T 36.36-37.5. 31 T36.25-30. 32 Exhibit D2. 33 Exhibit P1. 34 T 35.3-9. 35 T 19.23-27. 36 T 36.2-10. 37 T 19.13-22. -- 10 of 37 -- [2025] SADC 27 9 facing the wall. She marked the second plan to show where the bed was and where she was sleeping. The lady at the house had put her to bed and the accused had not gone to bed with her, at the same time.38 She fell asleep.39 57 BBK’s next memory is of waking up in the middle of the night and feeling uncomfortable. She could not recall if it was dark in the room when she woke up, or if the door to the room was open or closed.40 She had a blanket over her.41 She said, ‘he had his fingers inside me’ and his fingers were going in and out of her vagina. She could not say how many fingers, or how far the fingers were inserted, but she said that it hurt and it felt uncomfortable.42 58 BBK gave evidence that she was lying on her back and the accused was lying on his side on the bed.43 59 She did not say anything. The accused said to her that it was okay and for her to stop moving.44 BBK explained that she was moving to try to get up and go to the toilet. She said:45 Because I didn’t know how else to get out, so I thought if I said I need to go to the toilet I could sit in there for a little bit. 60 BBK estimated that the accused had his fingers inside her vagina for ‘about three minutes, three to five minutes’.46 The offending ended when she got up and out of bed to go to the toilet.47 61 BBK gave evidence that her pyjama pants and underwear were down near her feet, on the floor. She had not taken them off and she did not know how they had come off.48 She put her pants back on and went to the toilet.49 The accused did not try to stop her, nor did he say anything to her at that time.50 62 When BBK was in the toilet, she urinated and said it stung a little bit.51 She had no bleeding but later clarified that she had not checked for any bleeding.52 63 BBK gave evidence that she waited for about five minutes, then she came back into the room and went back to bed and to sleep on the same mattress. The 38 T 33.32-34; T 38.33-35. 39 T 19.28-20.31. 40 T 38.15-23. 41 T 42.28-29. 42 T 20.32-21.5; T 39.9-12. 43 T 21.37-22.6. 44 T 21.6-12. 45 T 21.18-20. 46 T 21.22. 47 T 21.21-31. 48 T 22.7-15. 49 T 43.4-10. 50 T 41.34-42.3. 51 T 22.20-27. 52 T 22.28-29; T 41.25-27. -- 11 of 37 -- [2025] SADC 27 10 accused had his eyes closed and was sleeping. She did not say anything to him. She did not say anything to anybody else in the house.53 64 BBK explained that she had not gone into the boys’ room as she did not want to wake any of the kids up.54 65 BBK was cross-examined about several purported differences in her evidence of and incidental to the alleged offending and what she had told the police in earlier statements. 66 BBK agreed that when she made her statement to police on 23 June 2021, she had said that she could not remember what she was wearing.55 67 BBK also agreed that in another statement made to police on 17 August 2024, she had said:56 His fingers were in my vagina when I woke up. When I was awake, I laid there for about three minutes before I told [the accused] I needed to go to the toilet. His fingers were in my vagina for that three minutes. 68 BBK also agreed that in that same statement, she had said:57 When I got up to go to the toilet my pyjama bottoms and knickers were on the floor next to the mattress on the side that [the accused] was, because I was against the wall. When I came back from going to the toilet I put my knickers and pyjama bottoms back on. 69 In re-examination, BBK explained that that she was feeling very scared and nervous when she gave her first police statement on 23 June 2021, as this was the first time she had given such a statement and she had not met the female police officer before. She also gave evidence that when she gave her statement to a male police officer on 17 August 2024, she was nervous and anxious and had not previously met that police officer.58 The Next Day 70 BBK gave evidence that the next day the accused ‘got up, like everything was normal’ and that she played with the kids again.59 71 She said she felt scared and did not know what to do. She explained that although she knew about things like kissing, she had not had any sex education at school at that time, and she did not know much about it or understand it all.60 53 T 22.30-23.6; T 44.4-13. 54 T 42.16-21. 55 T 37.3-38.14. 56 T 40.35-41.12. 57 T 43.19-23. 58 T 46.9-47.8. 59 T 23.7-12. 60 T 23.22-31. -- 12 of 37 -- [2025] SADC 27 11 72 BBK remembered that they had a barbecue at the house and that they left, later that same day.61 She said she left with the accused, JA and CA. She could not recall where they went afterwards. When asked in cross-examination if she had left with her grandma, rather than the accused, she said that she could not remember but did not think so. When BBK was asked if she could have gone with her grandma to Ceduna thereafter, she said that she could not remember. She agreed that what she meant by that was that it could have happened, but she was just not sure.62 73 In cross-examination, BBK gave evidence that she was sure that they only stayed for one night in Moonta Bay. She agreed that when she provided her statement to police on 23 June 2021, she had said she could not remember how long she stayed there.63 Initial Complaint 74 As previously outlined, BBK gave evidence that the first person she told about the alleged offending was her friend, SC.64 She said she had not spoken to SC since they had been at school together in Renmark.65 75 In cross-examination, BBK agreed that when she spoke to the police in August 2014, she had told them that the conversation with SC had occurred when she was in Year 6, being different to what she told the Court (Year 3 or 4).66 SC’s Evidence 76 I refer to my discussion of SC’s evidence at paragraph 22 herein. 77 Although SC said, initially, that this conversation had occurred when she was in Year 7 and BBK was in Year 6, she agreed in cross-examination that it could have occurred when she was in Year 6 and BBK was in Year 5. She explained that she did not remember the specific date, it was a very long time ago and she just recalled being a little older than BBK.67 Ben and Jade Christian 78 Ben Christian (Mr Christian) gave evidence that when he was about 17, he met the accused when they were both working in Berri. He last had contact with the accused about eight years ago.68 79 Mr Christian lives at Moonta Bay. He gave evidence that he had lived at his current home in Bay Road, Moonta Bay for between 11 to 12 years and prior to 61 T 23.14-21. 62 T 44.22-35. 63 T 31.34-32.23. 64 See discussion as to this evidence at [21] herein. 65 T 24.1-7. 66 T 45.9-27. 67 T 52.36-53.8. 68 T 54.38- 55.11. -- 13 of 37 -- [2025] SADC 27 12 that he had lived in a house in North Terrace, Moonta Bay, having first lived there around 14 years ago.69 80 Mr Christian gave evidence that he remembered one occasion when the accused visited the North Terrace house with his two boys and BBK. He was unsure whether at the time of this visit the accused was still in a relationship with CA.70 He said he and his wife had two children at the time of the visit, one of whom was about four and the other, Aiden, who was a baby. After much hesitation, he gave Aiden’s date of birth as 8 March 2010.71 He could not recall if Aiden slept in a cot during the visit.72 81 Mr Christian prepared a floorplan of the North Terrace home on 19 February 2025.73 He described the home as a small transportable. He could not recall precisely which bedroom his children slept in at that home and he conceded that his plan may have been inaccurate in terms of the location of the toilet (which could have been on the opposite side of the house next to the laundry) and the master bedroom (which could have been on the same side as the road).74 82 Mr Christian could not remember where the accused, BBK, JA and CA slept during the visit, nor did he have a specific memory of what they did during the visit. He gave the following evidence:75 Q. Can you remember on this visit where the accused and his children slept. A. Don't remember specifically but we'd normally bunk the kids up together and whoever was staying would be sleeping on the couch, or lounge room, or swag, very small house. Q. Normally the children would bunk together. A. Yeah. Q. Do you have bunkbeds there. A. I can't remember. Q. Usually the other guests would sleep. A. In the lounge, only spot left really. Q. But do you have a specific memory about. A. Not a specific. 69 T 54.10-7. 70 T 55.21-56.3. 71 T 60.23-26. 72 T 60.12-20. 73 Exhibit P3. 74 T 56.16-17; T 57.36-58.2; T 58.38-59.17. 75 T 58.3-25. -- 14 of 37 -- [2025] SADC 27 13 Q. So in relation to the time we're talking about, you don't remember where they slept. A. No, no. Q. Can you remember what you did with the accused when he visited this time. A. I think we went fishing, barbecue, few beers, that's - Q. Can you remember that specific to this time or is that an estimate about what you would usually do. A. I think it's probably more of an estimate, to be honest. 83 Mr Christian could not recall what BBK did during the visit, or the circumstances of how she left. Nothing had happened during the visit which raised concerns for him.76 84 Jade Christian (Mrs Christian) gave evidence that she and her husband had lived at various houses in Moonta Bay, including a house at North Terrace from around 2013, where they lived prior to purchasing their current home in Bay Road in October 2014.77 85 Mrs Christian knew the accused as he was a good friend of her husband. She also knew BBK. She gave evidence that there was a time when the accused, BBK and his two sons visited them in Moonta Bay, but she could not recall the circumstances of that visit, nor where they were living in Moonta Bay at that time.78 Consistent with that evidence, she also had no recollection of anything of concern happening during that visit.79 86 Mrs Christian gave Aiden’s date of birth as 9 November 2011. She was asked whether, when Aiden was a baby, he slept in a cot with a pull out mattress in it. She said:80 Wouldn’t have been a pull out mattress, the mattress would have been stuck like in the cot. You could probably get it out but, yeah. Dr Kenny General 87 Dr Kenny is a Child Psychologist whose work includes the provision of expert reports in relation to child behaviours in the context of sexual offending. Dr Kenny’s evidence was admitted pursuant to s 29C of the EA. Her expertise to give that evidence was not ultimately in dispute. 76 T 59.30-60.8. 77 T 62.26-63.34. 78 T 66.14-32. 79 T 68.13-17. 80 T 67.30-32. -- 15 of 37 -- [2025] SADC 27 14 88 Dr Kenny had not assessed BBK. Much of her evidence was given in general terms, rather than being specific to the factual circumstances of the alleged offending. Why may a child victim not seek help? 89 Dr Kenny gave evidence on four specific topics. The first related to why a child who was a victim of sexual abuse may not seek help from others present at the time of that abuse. This evidence was relevant insofar as BBK gave evidence that at the time of the alleged offending, her younger half-brothers were sleeping in an adjacent room and there were two other adults, Ben and Jade Christian, in the house. BBK did not seek help (or refuge) from those other persons after the alleged abuse, rather she had returned to the same room and the same mattress, where the accused was sleeping. 90 Dr Kenny gave evidence that there was no specific body of research addressing this discrete issue but that research undertaken on the ancillary issue on the conditions under which children will disclose sexual abuse was informative.81 91 The age and gender of the child, the nature of the abuse and the relationship between the child and the abuser were factors which may influence whether the child may contemporaneously disclose the abuse or call out for help.82 92 Dr Kenny gave evidence that a young child under the age of about seven (without being prescriptive) was less likely to report such abuse than an older child. Boys were less likely to report abuse than girls. A young child was unlikely to go to a stranger to seek out help or to disclose abuse if they were in a group, with one of the factors influencing that being a fear of embarrassment.83 93 Children were also more likely to report sexual abuse which fell at the lower end (those not involving any major insult to their body such as frotteurism and voyeurism) and abuse which was at the extreme end of the scale, involving the infliction of serious pain. They were less likely to report ‘mid level’ offending. Dr Kenny gave the following evidence:84 So it’s for children in the middle who have been sexually touched or, you know, there’s been an attempted digital penetration or fondling of the breasts or so forth, they may be a less likely to disclose at the time and they also may not disclose subsequently. 94 A child was less likely to disclose sexual offending by a father or stepfather who was living in the home, particularly in circumstances where a threat was made with respect to any such disclosure. Often such children were also receiving something of value from the perpetrator, either by way of attention or material goods. 81 T 82.16-32. 82 T 82.33-83.6. 83 T 84.1-85.14. 84 T 85.25-30. -- 16 of 37 -- [2025] SADC 27 15 95 Dr Kenny gave evidence that a child victim of a single instance of sexual offending would be more likely to disclose that offending if the perpetrator did not have strong emotional value to the child.85 96 Dr Kenny explained that young children may not understand the nature of the offending, such that there was, in effect, nothing that they knew required reporting.86 97 In response to the very general question, namely, whether who was in the vicinity may affect whether a disclosure or complaint was made, Dr Kenny gave the following, equally general, evidence:87 A. In the home, if there's a father or stepfather abusing a child, there's always someone in the vicinity, in, you know, the guise of the mother and other siblings and very often in those circumstances there isn't a disclosure. In another situation where it's kind of one-off when the child is outside the home, sometimes the child will engage in safety-seeking behaviours. So they'll run as quickly as they can to the people that they were with before this event happened, but they may not disclose, they may just, you know, feel the discomfort or the anxiety settle once they're back in the proximity of known people or caregivers but that doesn't necessarily mean they will disclose at that time. 98 Dr Kenny explained in cross-examination, that what she meant by ‘safety seeking’, was running back to a safe place or a safe person. After being abused, it was common for a child to immediately seek out known people who are safe, so that they are also safe and no longer at risk of continuing assault, albeit they may not necessarily disclose the fact of the abuse at that time.88 99 Dr Kenny gave evidence that a child would usually disclose to someone who was within that child’s trusted circle, from whom they could reasonably expect a helpful response, such that it was unusual for children to disclose to unfamiliar people.89 Responses to Trauma 100 Dr Kenny gave evidence that victims of sexual abuse (including children) may respond to that abuse (or trauma) in a variety of different ways along a spectrum, which included the concepts of: 90 • freeze, where the victim freezes and is unable to do anything in response, akin to ‘a deer in the headlights’; • fight, where the victim screams or kicks to try to protect themselves; 85 T 86.29-37. 86 T 87.16-29. 87 T 87.33-88.8. 88 T 98.18-99.4. 89 T 88.19-27. 90 T 88.32-90.2. -- 17 of 37 -- [2025] SADC 27 16 • flight, where the victim tries to flee or run away; • fright, where someone may experience ‘tonic immobility’ such that they try to move their limbs but are so overwhelmed with terror that they cannot; • faint, where the victim either faints or plays dead as a self-protective mechanism; • fawn, where the victim tries to appease the offender; and • befriend, where the victim develops a traumatic attachment to the offender, sometimes called ‘Stockholm Syndrome’. 101 She confirmed that how victims respond is a complex physiological reaction which will differ depending on all of the circumstances. Indicators of Offending in Children 102 Dr Kenny explained that that the impact of offending on child victims of sexual abuse – and therefore whether there are indicators of such abuse – again differs depending on all of the circumstances. 103 Generally speaking, children who come from homes where they are supported by their primary caregiver, who have friends and do well in school, will recover to their prior level of functioning if they receive a good response from those to whom they disclose the offending. Children who come from backgrounds where they are otherwise neglected, or physically and emotionally abused are already compromised by those circumstances and the abuse adds another layer of trauma, from which there may be greater difficulty to recover.91 104 Some indicators may include the development of promiscuous behaviours or regression in development such as a return to bedwetting. Some children may become withdrawn and/or anxious and depressed. Some may experience changes in demeanour and personality. Impact of Trauma on Memory 105 Dr Kenny gave evidence that there are conflicting theories as to whether trauma actually enhances memory or impairs memory. She explained that the current, more accepted theory, is that trauma memories are equally as well remembered as pleasurable memories and possibly more so (the ‘trauma superiority argument’).92 106 She explained that repeated studies had shown that young people who experienced child sexual abuse have sound memories of the ‘core events’ of what happened but may not always have accurate memories of matters which were 91 T 90.8-27. 92 T 92.24-29. -- 18 of 37 -- [2025] SADC 27 17 peripheral events surrounding the abuse (for example, how they got to the place where they were abused or the colour of the bedspread).93 107 As to what may be considered part of the ‘core event’ of any trauma, as compared to a ‘peripheral matter’, Dr Kenny gave evidence that what happened immediately after the abuse was usually part of the core memory.94 108 In cross-examination, Dr Kenny was asked if incidents surrounding and in immediate proximity to the event would be included in the core memory. She said:95 A. It depends how salient it was but the core memory usually refers to the actual act of the sexual abuse. I mean, for example, I mean I have a case where the child is actually tied up before her father assaulted her so the tieing up wasn't the sexual abuse but it was certainly part of that constellation of experiences that you know, would be considered to be a core memory. So you have to take each circumstance, they are all unique circumstances, no two circumstances are exactly alike. 109 She confirmed that it all depended on the facts of the case and the child in question.96 110 Dr Kenny explained that in a one-off incident of sexual abuse, a child will just remember the salient features of the experience and not much else. Adopting the ‘trauma superiority argument’, this did not mean that the child’s recollection of the event was any less reliable, notwithstanding that recollection may be confined to sensory flashbacks of the event and not otherwise integrated into a concrete narrative.97 111 Dr Kenny also confirmed that the amount of a person’s stress hormone and its effect on that person’s brain systems may also impact on that person’s ability to retrieve memories.98 112 In cross-examination, Dr Kenny disagreed with a proposition that where there was a false complaint of child sexual abuse, the fact it was false may provide an explanation for why there was a delay in that complaint being made. She said that studies showed that the majority of false complaints were made in the context of family custody disputes.99 However, she agreed that inconsistency in a person’s version of the event may be an indicator that the event had not occurred, although there were a range of other things that would need to be taken into account.100 93 T 92.35-94.16. 94 T 95.3-17. 95 T 99.22-30. 96 T 99.34-100.9. 97 T 95.29-96.3. 98 T 97.27-32. 99 T 100.10-29. 100 T 101.6-18. -- 19 of 37 -- [2025] SADC 27 18 Closing Addresses of Counsel Prosecution Submissions 113 The prosecutor submitted that although BBK’s evidence had been succinct, it was both detailed and consistent in terms of her recollection of the core aspects of the offending, such that the Court should accept BBK’s evidence as being both credible and reliable. 114 This was not a case where BBK had sought to embellish her version of events or exaggerate the offending to cast the accused in a poor light. Rather, BBK had confined her evidence strictly to what she recalled of the offending and had been fully transparent insofar as her memory of other peripheral events was now poor. 115 The Court was reminded of BBK’s hesitation in commencing her description of the offending. It was submitted that both what she said and the way she gave her evidence gave the impression that what BBK was telling the Court was a genuine recollection of a real, confusing and confronting event that had happened to her. She was clear about what she felt when she first woke up – being the discomfort of the accused’s fingers moving in and out of her vagina - and about her pyjama bottoms and underwear being off and at her feet. She was clear that the offending had continued for ‘about’ three minutes and she was clear that it only ended when she got up to go to the toilet. 116 It was submitted that BBK had not tried to burden her account with extraneous detail and instead, her succinct account had the searing clarity of truth. 117 The prosecutor summitted that importantly, there were aspects of BBK’s account which received support from the other evidence. Mr and Mrs Christian both confirmed that there had been an occasion when the accused, BBK, JA and CA came to stay at their home in Moonta Bay. Having regard to the concessions Mr Christian had made in his evidence as to his recollection of the location of the various rooms within his North Terrace house, his floorplan of that home was somewhat consistent with BBK’s recollection. This was telling, given BBK had only visited the home once about ten years ago. 118 Similarly, Mr Christian’s evidence that the boys would bunk together, was consistent with BBK’s recollection of there being bunk beds in the boys’ room. What BBK had described in terms of the accused and his friends having a few beers and there being a barbecue, during the visit, was also consistent with what Mr Christian said would generally occur on such visits. As such, there were aspects of BBK’s account which comfortably sat with other evidence, and that was because BBK was telling the truth. 119 The prosecutor submitted that BBK’s evidence on the facts and circumstances of the offending had remained consistent, with any inconsistencies or potential inaccuracies in her evidence relating only to peripheral or unimportant matters. This was consistent with Dr Kenny’s evidence as to what was now the accepted theory as to how memory worked in those who had suffered trauma, -- 20 of 37 -- [2025] SADC 27 19 namely core elements of the event were recalled, whereas peripheral events may not be. 120 Further, insofar as there were any inconsistencies in BBK’s evidence, the Court was asked to accept BBK’s evidence as to how she was feeling at the time she gave her police statements on 23 June 2021 and 17 August 2024, particularly having regard to Dr Kenny’s evidence as to the potential impact of stress on a witness’s ability to retrieve memories. 121 In particular, it was submitted that the Court should accept BBK’s evidence that she put on her pants before she went to the toilet and find that what she had told the police to the contrary was clearly an error, explicable by the circumstances in which she had given that statement. 122 Further, it was submitted that the fact that BBK had calmly acknowledged and accepted purported inconsistencies when they were pointed out to her, was reflective of the fact that she was not fazed by this, as she knew she was telling the truth. Tellingly, at no time during her evidence had BBK ‘become unstuck’. 123 The Court was reminded of the fact that the other adults in the house at the time of the alleged offending were not people with whom BBK was familiar. They were not within her trusted circle. The fact she had not sought out their help, or her brother’s help, immediately after the incident, was readily explicable having regard to Dr Kenny’s evidence as to those factors which influence why a child victim may not seek out help or disclose the offending. 124 Specifically, BBK was young (about six or seven), she was in an unfamiliar home, with unfamiliar people and was the alleged victim of a ‘middle range’ type of offence. She was in a group setting. All of these factors made it less likely that she would seek out help or disclose the offending. In addition, BBK was reliant on the accused, given her young age and the fact he had driven her to this unfamiliar location. 125 Further, BBK’s reaction to the offending, that is, getting out of the bed to go to the toilet, fit within Dr Kenny’s description of the ‘flight’ response, being a quick act of self-preservation. 126 Finally, the prosecutor submitted that both the circumstances in which BBK first complained of the alleged offending and the content of her complaint to SC demonstrated a degree of consistency of conduct, thus supporting her credibility. It was submitted that this conversation must have occurred no later than when BBK was in Year 5, as she left SC School at the end of Year 5. It had therefore occurred at a time relatively proximate to the offending. The disclosure was made to a good friend, during a deep and meaningful conversation. BBK had a clear memory of the conversation and that the gist of what she told SC was that she was molested at the age of seven, being largely consistent with her evidence of the alleged offending. -- 21 of 37 -- [2025] SADC 27 20 127 It was submitted that the Court could be satisfied beyond reasonable doubt that BBK was telling the truth about the alleged offending and that the prosecution had proved the accused’s guilt beyond reasonable doubt. Accused’s Submissions 128 Counsel for the accused supplemented his oral closing address with a written Aide Memoire. 129 It was submitted that when BBK’s evidence was carefully scrutinised, the Court should find that her evidence was simply too vague and inconsistent for it to be satisfied beyond reasonable doubt as to the accused’s guilt. 130 The Court was asked to consider the significance of the proven inconsistencies in BBK’s evidence, both individually and cumulatively, having regard to their nature, their materiality and any explanation given for them. Those inconsistencies were to be considered in the context of all of BBK’s evidence, much of which was vague or unsatisfactory. 131 This was said to be demonstrated by the fact that the prosecution amended the particulars of the charged offence, to broaden the date range in which the alleged offending was said to have occurred, after BBK gave evidence that she was now not sure if the offending had occurred when she was six or seven. The fact the prosecution had opened the case on the basis BBK was aged seven at the time of the offending, was also a relevant consideration. 132 BBK could now not recall where she was living at the time of the alleged offending, the car the accused drove to Moonta Bay, whether the accused went fishing during the trip, the appearance of the room she slept in or its bedding, if there was an adjacent bedroom and pertinent details of the day after (including where she went thereafter and how she got there). She had demonstrated inconsistencies in her recall as to where the toilet was located, what furniture was in the room she slept in and when she disclosed the offending to SC. 133 Although these were matters peripheral of the alleged offending, it was submitted that when viewed cumulatively, the sheer volume of matters upon which BBK was unclear, served to undermine her reliability to a large extent. It was submitted that this also contributed to the overall forensic disadvantage suffered by the accused insofar as there was very little ability for him to test BBK’s recall of peripheral or ancillary matters to otherwise reveal weaknesses in her reliability generally. 134 More importantly, it was submitted that there were critical aspects of BBK’s account of the offending which were generally vague or inconsistent. BBK could not recall if it was dark in the room at the time of the offending or if the door was open or closed. She could not recall how many fingers were inside her vagina or how far they were inserted. There was inconsistency in her evidence as to how long the accused’s fingers were inside her vagina. BBK’s evidence was also -- 22 of 37 -- [2025] SADC 27 21 inconsistent as to what she was wearing when she went to bed and whether she had put her pyjama pants back on before or after she went to the toilet. 135 These matters were all said to be ‘core matters’ which went to the heart of the offending, such that, in accordance with Dr Kenny’s evidence, one would expect BBK to retain a consistent recall of such matters, if what she was describing had actually occurred. 136 While it was conceded that some allowance ought to be made for the fact that BBK was scared and nervous when speaking to police, thus providing a potential explanation for some of the inconsistencies in her evidence, it was submitted that this was not an answer to her general lack of memory regarding contextual matters. 137 The Court was asked to carefully consider the factual similarities in this case to those in Robinson v The Queen,101 which facts had created a perceptible risk of a miscarriage of justice. 138 Counsel for the accused submitted that in addition, there were aspects of BBK’s account which were implausible. 139 These included the absence of any prior grooming, which spoke against the offending having occurred. There was no evidence to explain why the accused was emboldened to sexually abuse BBK, in circumstances where he had no prior knowledge of how she would respond to the offending. There was therefore a high risk of detection of the offending either at the time it occurred, or subsequently. This was particularly so in circumstances where there was no evidence the accused had told BBK not to tell anyone, and where, on BBK’s evidence he simply allowed her to leave the bed and go to the toilet. 140 Further, the alleged offending occurred after CA and the accused had broken up and the accused was no longer living with BBK. BBK said she enjoyed spending time with her mother. She had no particular allegiance to the accused. He had no way of controlling or limiting the risk of BBK disclosing the offending to CA upon her return home. 141 Counsel also highlighted other aspects of the offending itself which rendered the account unlikely, namely the fact BBK did not wake up when the accused was removing her pyjama pants and underwear and the unlikelihood of her simply returning to the room next to the accused after the offending, rather than seeking sanctuary in the room where her brothers were sleeping. This latter aspect was said to be contrary to Dr Kenny’s evidence that victims may seek safety from those within their trusted circle. 142 Insofar as the prosecution sought to rely on Dr Kenny’s evidence to bolster BBK’s evidence, the Court was reminded of the generality of that evidence and its limitations in circumstances where Dr Kenny had not psychologically assessed 101 (1999) 197 CLR 162 at [25]. -- 23 of 37 -- [2025] SADC 27 22 BBK. Further, in addition to matters already mentioned, there were aspects of this case which, applying Dr Kenny’s evidence, rendered it more likely that BBK would immediately disclose the offending, as she was no longer reliant on the accused for care or concerned to maintain a relationship with him. 143 The Court was warned about the dangers of circular reasoning, that is, the danger of assuming that BBK’s memories of the offending were reliable because they related to a traumatic event. To apply the ‘trauma superiority’ theory as to memory, the Court must first be satisfied that there was such trauma. 144 Counsel for the accused submitted that contrary to what was argued by the prosecutor, the complaint evidence did not demonstrate consistency of conduct, either in terms of when and to whom the complaint was made or the terms of the complaint. 145 As to the former, it was submitted that BBK was living with her mother, with whom she was happy to spend time. The accused no longer lived with them and BBK had no ongoing allegiance to him. He had not threatened her or sought her silence. It was submitted that as a matter of common experience, one would expect the initial complaint to have been made by BBK to her mother, following her return from Moonta Bay, rather than several years later to a school friend. 146 As to the latter, the terms of BBK’s complaint to SC did not reveal the details of the alleged offending or even that it was accused who had offended against her, nor was she upset during the conversation. 147 It was submitted that in such circumstances, little weight should attach to the complaint evidence. 148 Finally, it was submitted that in this case, the accused should be afforded the benefit of delay when determining whether the prosecution had met its burden as to the charged conduct, as there was multi-dimensional and significant forensic disadvantage to the accused arising from that delay. 149 The alleged offending dated back 12 to 13 years ago and when BBK was a young child. Had the trial been conducted at a time more proximate to the event, the accused may have been able to give or lead evidence as to his whereabouts or movements to shed doubt on there being the opportunity for him to have offended. He may have had a better memory himself of peripheral events in order to properly and extensive test BBK’s reliability generally. 150 It was submitted that the passage of time meant that BBK’s recollection of events was to be considered in a vacuum. Mr Christian’s evidence was too vague to properly assist the Court and Mrs Christian had no recollection of the circumstances of the visit. This was important, as Mr Christian had given evidence that visitors usually slept in the lounge room. It was also important in terms of potentially establishing that BBK’s account could not have occurred because the -- 24 of 37 -- [2025] SADC 27 23 mattress she slept on was a very small mattress which had been removed from a baby’s cot. 151 It was submitted that the loss of forensic tools available to the accused to properly test and challenge BBK’s evidence on account of the passage of time had impaired his ability to properly demonstrate the true extent of the unreliability of BBK’s evidence and/or its lack of credibility. This was particularly so where BBK’s evidence itself was so vague and lacking in context. 152 Counsel for the accused submitted that BBK may have simply become convinced the incident occurred and, if her evidence had been properly tested, this could have exposed important matters that she had forgotten or misremembered. The Court was urged to bring this significant forensic disadvantage into account in the accused’s favour. 153 It was submitted that in all of these circumstances, the Court could not be satisfied that the prosecution had proved the charge beyond reasonable doubt, such that the accused was entitled to an acquittal. Assessment of the Evidence/Observations and Findings SC’s Evidence 154 SC was a patently honest witness who was doing her best to give a truthful and accurate account of a conversation she had with BBK many years ago in primary school. 155 I accept SC’s evidence as to the fact of this conversation and her evidence as to her recollection of its content. 156 Although SC thought this conversation had occurred when she was in Year 7 and BBK was in Year 6, SC must be mistaken about that as BBK left SC School at the end of Year 5 in 2018. 157 As such, I find that at the very latest, this conversation occurred during 2018, possibly earlier. 158 Although SC did not recall many details of the conversation, what she did recall was not otherwise inconsistent with BBK’s description of what BBK said she told SC. I am satisfied that they were both recounting the same conversation, notwithstanding their different descriptions of its content. 159 BBK turned 11 in 2018. Although BBK gave evidence that at the time of the offending she had not had any sex education, and only knew about the basics such as kissing, she was not questioned as to when (or if) she subsequently received sex education. It may be that the timing of BBK’s conversation with SC corresponded to the time in BBK’s life when she first properly understood what had happened to her. However, in the absence of specific questioning on that topic, there is -- 25 of 37 -- [2025] SADC 27 24 insufficient evidence before the Court from which this can be inferred, particularly given the doubt as to the precise timing of BBK’s conversation with SC. 160 For a young girl to first disclose sexual abuse to a trusted slightly older friend, during a discussion about matters of concern to them, is readily understandable. In addition, for there to be only limited details imparted of the abuse during such a conversation is also understandable given the subject matter of the discussion, this being a difficult and embarrassing topic for young girls to discuss, even with those close to them. 161 I accept BBK’s evidence as to her recollection that she told SC words to the effect that she had been molested at the age of seven. The fact SC recalled the conversation to be serious and about ‘abuse’ is consistent with that evidence. 162 For these reasons, I consider the complaint evidence does demonstrate some degree of consistency in BBK’s account. 163 However, Dr Kenny’s evidence (discussed below) is relevant to my overall assessment of the weight to be given to the complaint evidence. 164 There was no dispute that the trip to Moonta Bay occurred after the accused and CA separated. BBK agreed in cross-examination that after the breakup, the accused moved out of the home and went to work up at Roxby Downs. BBK gave evidence that she was not upset after the breakup and was happy spending time with her mother thereafter. 165 I note Dr Kenny’s evidence, which I accept, namely that: • a child is less likely to report sexual offending by a father or stepfather with whom they live (and therefore, conversely, is more likely to report offending perpetuated by someone with whom they do not live); • A child victim of a single instance of offending is more likely to disclose the offending if they do not have emotional attachment to the abuser. 166 As such, there is some strength in the defence argument that one may have expected BBK to first disclose the offending to her mother in the circumstances of this case. 167 There was no evidence called from CA and no explanation as to why. 168 There was a curious absence of any evidence as to what happened in BBK’s life after the alleged offending and/or whether she ever saw or interacted with the accused thereafter (and if so, in what circumstances). Had such evidence been led, the Court would be better placed to assess the extent to which BBK’s disclosure of the offending to SC, rather than her mother does, in all of the circumstances, demonstrate consistency of conduct both as to the timing of the complaint and to whom it was made. -- 26 of 37 -- [2025] SADC 27 25 169 I have given some, but only modest, weight to the complaint evidence, in terms of my overall assessment of the reliability and credibility of BBK’s evidence. Ben and Jade Christian 170 I accept that both Mr and Mrs Christian were honest witnesses insofar as they were genuinely attempting to assist the Court by providing a truthful account of what they did (or did not) remember. 171 I accept the evidence given by Mr Christian that there was an occasion when BBK came with the accused and his two sons to stay at their home at Moonta Bay. Neither his evidence, nor BBK’s evidence, as to the fact of that visit was challenged. 172 It was clear that Mr Christian had only a very vague memory of the visit and he was unable to positively assist the Court with any reliable recall of what occurred during that visit. Mrs Christian had no memory of the details of the visit. 173 During his closing address, counsel for the accused appeared to concede that the visit had been to the Christians’ home in North Terrace, Moonta Bay. Mr Christian’s floorplan of that home bore some resemblance to the second plan drawn by BBK, albeit there were differences insofar as Mr Christian placed the toilet on the opposite side of the house to BBK. 174 My overall impression of Mr Christian was that although he was an honest witness, his memory for detail was poor. Perhaps the best example of this was his recollection of Aiden’s date of birth (08/03/10), which differed markedly from that given by Mrs Christian (09/11/11). BBK’s evidence that the visit occurred after CA and the accused broke up was not challenged. It was an agreed fact the couple separated during 2014. The visit must have occurred in or about 2014. As such, Mr Christian’s evidence as to Aiden’s date of birth was also inconsistent with his evidence that Aiden was a ‘baby’ during the time of BBK’s visit. Mr Christian conceded his floorplan may have been inaccurate. 175 As such, while I accept Mr Christian’s evidence that he recalled nothing of concern occurring during that visit, that evidence carries very little weight. Mrs Christian’s evidence, to the same effect, carries even less weight in circumstances where she cannot remember any of the details of the visit. 176 Mr Christian’s evidence that during visits such as this, ‘we’d normally bunk the kids up together’102 was also consistent with BBK’s recollection of there being a bunk bed in the boys’ room. 102 T 58.5-6. -- 27 of 37 -- [2025] SADC 27 26 177 However, the Christians could not give any evidence as to the specific sleeping arrangements during BBK’s visit. This was important as it was relevant to the issue of opportunity. 178 There were two aspects to this. 179 The first relates to where the accused slept (and/or where it was intended that he would sleep) during this specific visit. Mr Christian confirmed it was a small house and said that during visits such as this, ‘whoever was staying would be sleeping on the couch, or lounge room, or swag...’. 180 It was implicit from BBK’s evidence that the accused slept, at least for some time, next to her on the mattress in a spare room during this visit. When BBK was asked what happened the next day, she said, ‘He got up, like everything was normal’.103 She was not asked to elaborate on this response, for example to confirm if the accused was still sleeping on the mattress next to her when she woke up the next morning. If someone observed the accused sleeping in another room, either on the night of the alleged offending or the next morning, this would be relevant and important evidence. 181 Due to the passage of time, the Christians could not assist the Court as to where the accused was meant to sleep during the visit and/or where he, in fact, slept. They could not assist the Court as to what occurred during the evening in question. There was therefore no evidence from the Christians as to the accused’s movements within the house, at or about the time of the alleged offending, or the next morning. 182 The second aspect relates to the type of mattress provided for BBK to sleep on. It was suggested to BBK that the mattress came from a cot. She denied this. 183 Mrs Christian was asked whether Aiden’s cot had a pullout mattress. Her response was initially, no, that the mattress was stuck in the cot, but she qualified this to say that ‘you could probably get it out’.104 184 Absent the delay between the alleged offending and the trial, the Christians may have been able to remember (and identify) what mattress BBK slept on, and whether it was a single mattress or a smaller mattress from a cot. If BBK was sleeping on a mattress from Aiden’s cot, then it may have been physically impossible for the accused to sleep on that mattress at the same time as BBK, depending, of course, on the size of that mattress. 185 I accept that as such, due to the delay, the accused has been deprived of calling evidence which may have assisted his defence on the issue of whether he had the opportunity to commit the offending as alleged. 103 T 23.8. 104 T 67.31-32. -- 28 of 37 -- [2025] SADC 27 27 186 BBK gave evidence that the visit was on a Friday night and that she left the next day. When she first spoke to the police, she could not remember how many nights she stayed in Moonta Bay. As Mr or Mrs Christian could not recall any details of the visit, neither could give evidence as to the length of the visit. If the visit was for longer than one night, then this provides a further avenue of enquiry to test BBK’s allegations. For example, what if any change in sleeping arrangements occurred on the second night? 187 I accept that this is another example of the forensic disadvantage suffered by the accused due to delay. Dr Kenny’s Evidence 188 Dr Kenny’s expertise was not challenged. She was both an honest and accurate witness and I accept her evidence. 189 Notwithstanding the generality of Dr Kenny’s evidence, it was of some assistance to the Court to understand certain aspects of BBK’s account and in particular her response to the alleged offending. By way of observation, the weight to be attributed to Dr Kenny’s evidence would have been greater had she been asked to make factual assumptions, specific to the circumstances of this matter, when responding to the specific questions posed. For example, Dr Kenny was never asked to assume that the alleged offending had occurred when BBK’s mother was not in the house and/or at a time after BBK’s mother and the accused had separated and when the accused no longer lived with BBK. 190 Dr Kenny did not examine BBK, nor did she undertake any psychometric testing of BBK. In the circumstances of this case, it is difficult to see how such assessment, around ten years later, would have assisted the Court, albeit one can conceive of circumstances where such testing may shed further light on matters specific to a complainant. 191 I have carefully considered BBK’s response to the alleged offending in the context of Dr Kenny’s evidence. 192 The alleged offending occurred in an unfamiliar home in another country town. Although there was no specific evidence as to how well BBK knew Mr and Mrs Christian, she did not know their names. The consensus of the evidence was that she only stayed with the Christians on one occasion with the accused and his two sons. There was no evidence as to whether she had previously met the Christians and if so, how many times. However, on BBK’s evidence she was aged only six or seven – she was a young child. Ben Christian was an old friend, through work, of the accused, rather than being a long-term family friend. The Christians lived in Moonta Bay whereas BBK lived in Renmark. I find that the Christians were not well known to BBK and certainly were not within her ‘trusted close circle’ of adult confidantes. -- 29 of 37 -- [2025] SADC 27 28 193 BBK gave unchallenged evidence that the accused drove her to Moonta Bay. Given her age, she was necessarily reliant on him not only for (some) transport purposes, but on other necessities such as care and protection. 194 In these circumstances, the fact that BBK did not seek out support from either Mr or Mrs Christian after the alleged offending is readily understandable and consistent with Dr Kenny’s evidence as to how children generally behave in such a situation. 195 BBK knew her brothers were sleeping in an adjacent room. She explained that she did not go into their room, after the alleged offending, as she did not want to wake them. In assessing this evidence, it is important to remember BBK’s young age, and her evidence that she knew very little about sex at the time of the alleged offending. 196 When BBK was aged either six or seven, JA was aged between about three and four and CA was aged either one or two. The Christians’ boys were of similar young age. Neither JA nor CA, nor the other boys, were old enough to be of any real assistance or protection to BBK. However, the fact they were sleeping in a separate room, did potentially provide a ‘safe haven’ of sorts for her, in the sense that there was another room, away from the accused, available for her to sleep in. 197 BBK’s response to the alleged offending was to ‘flee’, initially, consistent with Dr Kenny’s advice as to the various ranges of responses that one may expect to such offending (ie anywhere on a spectrum including freeze/fight/flight/fright/faint/fawn/befriend). However, Dr Kenny was not asked whether for a victim to flee, and then return to be with their abuser, only minutes after the offending, was consistent with her knowledge and understanding of how children, in BBK’s specific circumstances, may respond. 198 I accept Dr Kenny’s evidence that the current preferred view is that children (and people generally) do retain a good memory of the core events of a traumatic episode, albeit they may have difficulty recalling peripheral matters. 199 If one assumes BBK suffered trauma in the nature of the alleged offending, the fact that she cannot now recall with precision what furniture was in the room, or the accused’s car or the details of what she did the next day, does not necessarily mean her memory of the offending itself is unreliable. 200 However, consistent with this preferred theory, one would expect BBK’s memory of the core details of the offending (or the salient features of the experience) to be intact, particularly as this was a one-off incident. 201 I disagree with the submission that Dr Kenny’s evidence supported a finding that BBK’s memory of putting her pyjama pants on, after the offending, was part of her core memory of the event and therefore something she should recall with clarity. Dr Kenny was not asked whether, in her opinion, in the circumstances of -- 30 of 37 -- [2025] SADC 27 29 this alleged offending, this specific incident (ie BBK putting her pants back on) would fall within the ‘core memory’ of the traumatic event.105 BBK’s Evidence 202 I have carefully scrutinised BBK’s evidence having regard to all of the evidence. 203 BBK gave her evidence in a quiet, careful and unassuming manner. She did not seek to embellish or exaggerate her evidence. She readily acknowledged the frailties of her memory and was careful to confine her evidence to only those matters which she remembered, rather than attempting to guess or speculate. She paused and took stock for some time before recounting the most traumatic aspects of her evidence. 204 There were aspects of BBK’s account which were compelling. She had a clear and consistent recollection of waking up, with the accused beside her and feeling his fingers moving in and out of her vagina. It hurt. She had a clear memory of feeling uncomfortable and of herself moving, to try to get up and of being told by the accused to stop moving. She had a clear and consistent memory of the offending stopping when she did, in fact, get up from the mattress and go to the toilet. 205 BBK impressed me as an honest witness. The way in which BBK described the offending and her demeanour when doing so, was consistent with her describing events that she genuinely believed had occurred to her. 206 I disagree with the submission made by counsel for the accused that BBK’s account of the offending was deficient insofar as she could not remember the number of fingers used by the accused or how far his fingers penetrated her. BBK was a young girl who had never had anything like this happen to her before. She had a limited understanding of matters relating to sex. She felt the accused’s fingers in her vagina. It was uncomfortable and it hurt. In the circumstances of this offending, I disagree that these are details one would expect BBK to either appreciate at the time or recall some ten years later. Similarly, whether the door to the room was open or closed during the offending is not something one would expect BBK to remember, particularly given her memory was of facing the wall (and therefore not the door). 207 There was some support for aspects of BBK’s account from the other evidence.106 Most importantly, BBK’s evidence that she did in fact stay at the Christians’ home in Moonta Bay, with the accused, JA and CA, on one occasion, was not challenged, nor was her evidence that this visit occurred after the accused and CA broke up. I make findings to this effect. 105 See evidence at T 99.19-36. 106 See discussion earlier as to the complaint evidence and those aspects of Dr Kenny’s evidence that lent support to her account. -- 31 of 37 -- [2025] SADC 27 30 208 BBK’s recollection that the toilet was opposite a bedroom where the boys were sleeping is consistent with Mr Christian’s floorplan of the North Terrace house, albeit BBK drew those rooms on a different side of the house to Mr Christian. Her recollection of some of the activities undertaken during the visit (ie the adults drinking beer, everyone having a barbecue) also accorded with Mr Christian’s recollection of the type of activities that would occur on such visits. 209 I have carefully considered those aspects of BBK’s evidence which were said to be inconsistent with what she had previously told the police in her various statements. 210 I disagree that BBK’s evidence that the accused’s fingers were inside her vagina for ‘about three minutes, three to five minutes’ is, in fact, inconsistent with what she told the police in her first statement.107 211 Much was made of the fact that the Information was amended to include a more extensive date range for the offence after BBK gave evidence that she may have been either six or seven at the time of the offence. It was an agreed fact that the accused and CA separated in 2014. BBK turned seven on 16 June 2014. The fact that BBK cannot now precisely recall whether she was six or seven at the time of the offending does not, in my view, cause me to otherwise doubt the reliability of her account, given her young age at the time and, of course, the fact she was trying to recall an incident she claimed occurred around ten years ago. 212 During the prescribed interview conducted on 23 June 2021, BBK said she was uncertain whether she had stayed one night or two at Moonta Bay, whereas in her evidence she was clear it was only one night. She could not recall where the toilet was in the house (noting the first floorplan she drew of the house omits the toilet, but the second plan includes it opposite the boys’ bedroom).108 She could not recall what was in the room where she slept, whereas in her evidence she described there being a clothes dresser in the room. She could not remember what she was wearing, whereas in her evidence she described wearing long pyjama bottoms, a pyjama top and underwear. 213 BBK acknowledged these inconsistencies in her evidence. She gave evidence that she had never previously met the officer who interviewed her, she had never previously talked to a police officer in an interview such as that and she was very scared and nervous. She said she was trying her best to remember what was being asked of her. I accept this evidence. 214 I accept Dr Kenny’s evidence that stress can impact a person’s ability to retrieve memories. 215 BBK had just turned 14 at the time she gave the statement on 23 June 2021. I accept that during that process she was feeling scared and nervous and that this, 107 As reproduced at [67] herein. 108 Exhibit D2. -- 32 of 37 -- [2025] SADC 27 31 coupled with her young age and the unusual circumstances of this occasion, contributed to her inability at that time to recall certain details, which when she thought carefully about them later, she remembered and disclosed. 216 As such, although BBK did not give specific evidence to this effect, it can be reasonably inferred from the combined effect of this evidence, that, with the benefit of time and absent those stressful circumstances, BBK was subsequently able to retrieve these details from her memory. 217 Most of these details relate to ancillary/peripheral matters, which, consistent with Dr Kenny’s evidence, are not necessarily things that one would expect to remember ten or so years later. 218 However, I consider that BBK’s evidence about what she was wearing falls into a slightly different category. BBK gave evidence that when she woke up, at the time of the offending, her pyjama pants and underwear were off and on the floor near her feet. She also gave evidence that she put her pants on before she went to the toilet. 219 In my view, the fact BBK had been wearing pyjama pants is therefore a core feature of BBK’s account of the offending, insofar as she now remembers her pants were off at the time of the offending. 220 As such, I consider the fact BBK did not recall what she was wearing during the first interview is unusual. It may be that when BBK said she did not remember what she was wearing, she intended to convey that she now no longer recalled which pyjamas and underwear she was wearing, rather than the fact she was wearing pyjamas and underwear. However, this possible explanation was not further explored with BBK. 221 BBK’s continued inability to remember if it was dark or light in the room at the time of the offending is also unusual, this being the type of detail that one may expect BBK to have retained. 222 There were also inconsistencies in BBK’s evidence as compared to what she told a male police officer in her second statement made on 17 August 2024. BBK was 17 at the time she gave that statement. I accept her evidence that she had not previously met this male officer and that she was feeling nervous and anxious when she spoke to him. 223 During that interview, BBK told the officer that she was in Year 6 when she told SC about the alleged offending. She gave evidence that this conversation occurred when she was in Grade 3 or 4. SC gave evidence this conversation occurred when BBK was either in Year 5 or 6. 224 As stated, I am satisfied that a conversation of the type described by both BBK and SC occurred and that they were referring to the same conversation. The fact that BBK’s evidence as to when that conversation occurred was inconsistent -- 33 of 37 -- [2025] SADC 27 32 with her earlier statement demonstrates that her memory as to time and dates may be unreliable, but that does not necessarily mean that her memory for events and what occurred during those events is unreliable. 225 In that same statement, BBK told the officer that she put her pants on after she returned from the toilet. In her evidence she was clear she put her pants on before she went to the toilet (which from a practical perspective makes much more sense). What BBK remembers, and is a core feature of the alleged offending, is that the offending ended when she got up to go to the toilet and that her pants were off and needed to be put back on. When she put her pants back on is, in my view, a peripheral memory, rather than a core memory of the offending. As such, the inconsistency between her evidence on this topic and what she told the police, does not, of itself, impact my assessment of the reliability of BBK’s account of the alleged offending. 226 However, there was another feature of BBK’s account to police in August 2024 which was inconsistent with her evidence. In that statement, BBK said her ‘pyjama pants and knickers were on the floor next to the mattress on the side that [the accused] was, because I was against the wall...’.109 BBK gave evidence that her pyjama pants were ‘down near my feet’ and ‘on the floor’.110 227 Although this may be considered a peripheral issue, there is an inconsistency in BBK’s account, both of where her pants were after the offending and when she put them on. I accept those inconsistencies are explicable on the basis that BBK was nervous and anxious when she gave her statement in August 2024 and not thinking clearly when she gave those responses. However, this emphasises the necessity for me to be very careful when scrutinising the reliability of BBK’s evidence, given less than eight months thereafter, in similarly stressful circumstances. 228 It was submitted that aspects of BBK’s account were simply implausible. 229 I have carefully considered those submissions. 230 I note what was observed by Doyle CJ in R v Corrigan: 111 … it is an unfortunate fact that it is not uncommon for sexual offences involving children and young people to be committed in circumstances in which a dispassionate observer would think an attempt to commit the offence would be unlikely because of the risk of detection. 231 BBK was vulnerable at the time of the offending, as she was in another house, in another town, with the accused being the adult responsible for her care. 109 T 43.19-21. 110 T 22.8-11. 111 (1998) 74 SASR 545 at 468. -- 34 of 37 -- [2025] SADC 27 33 232 However, on BBK’s version of the alleged offending, it is likely other adults were in the house at the time of the offending. It was a small house and notwithstanding Mr Christian’s poor memory for detail, I consider it likely and find that the master bedroom was adjacent to the room where BBK was sleeping. The accused did not try to stop BBK from leaving the room immediately after the alleged offending, nor did he say anything to her about keeping what had happened a secret. Notwithstanding Dr Kenny’s evidence about the circumstances in which victims may seek help, in the circumstances as described by BBK, there was a very real risk of BBK either reporting what had occurred to Mrs Christian (who had put her to bed) or at least seeking refuge with Mrs Christian thereafter, such that the offending could have been disclosed (either deliberately or inadvertently). The accused could not have known how BBK would react to what had happened. 233 The accused was no longer living with BBK at the time of the offending. Although there was no specific evidence to this effect, the case proceeded on the basis that BBK returned home to live with her mother sometime after the offending. In those circumstances, there must have been a very real risk that BBK would disclose the alleged offending to CA upon her return. 234 There was no evidence of the accused previously behaving in a way designed to groom BBK, either to explain the fact of the offending and/or why the accused may have been emboldened in these circumstances to commit the offending. In these circumstances, the accused could not have known how BBK would react to the offending. For example, she could have reacted by screaming out, thus potentially alerting the Christians to the fact he was in her room, lying next to her. 235 Although BBK’s young half-brothers were too young to help her as such, the fact that BBK decided to go back to the room and sleep next to the accused, rather than go into the room where her half-brothers were sleeping, to put distance between herself and the accused, is a feature of BBK’s account which is unusual. 236 These are all matters which I have carefully considered when scrutinising BBK’s evidence and in particular, the reliability of her evidence. 237 BBK gave very brief evidence. The Court did not learn much about BBK and what was otherwise occurring in her life, either prior to, at the time of, or in the period immediately after the offending. 238 BBK gave no evidence as to where she had lived from time to time and only very general evidence of the type of things she used to do with the accused before the breakup and/or before the alleged offending. 239 The Court heard no evidence as to what, if any, interactions there were between BBK and the accused after the Moonta Bay trip. It heard no evidence from any witness as to any change (or not) in BBK’s behaviour when she returned home after the alleged offending. -- 35 of 37 -- [2025] SADC 27 34 240 BBK could not remember details such as where she was living at the time of the offending, how she got home from Moonta Bay or whether she was collected by her grandma. While this lack of memory may be explicable by the passage of time, BBK’s inability to recall many other details associated with the visit to Moonta Bay, such as to give context to the alleged offending, meant that it was difficult for the Court to properly assess the reliability of BBK’s overall account of the offending and importantly, it meant it was very difficult for the accused to test both the reliability and credibility of BBK’s evidence. 241 I agree that in the particular circumstances of this case, the inability of both BBK and the Christians to give anything other than very general evidence surrounding the context of the offending has resulted in significant forensic disadvantage to the accused. 242 I accept the submissions made by counsel for the accused as to the nature and extent of that forensic disadvantage. The delay has meant that the accused has been denied the opportunity of marshalling evidence to refute the allegations and to properly challenge BBK’s account of the offending. 243 I must bring this significant forensic disadvantage into account, when scrutinising the prosecution case. Conclusion 244 As previously stated, there were compelling aspects of BBK’s account, the most important of which related to her anchoring the offending to the visit to Moonta Bay and the overall consistency in her description of most of the salient features of the offending. The complaint evidence also demonstrated some degree of consistency in her account. 245 While Dr Kenny’s evidence gives some general assistance to the Court in terms of understanding why BBK reacted to the alleged offending in the way she described, the accused could not have known how BBK would react in these circumstances. 246 The North Terrace house was very small. Other adults were in the house at the time of the alleged offending. There was a very real risk that BBK may have reacted to the alleged offending by yelling out, meaning there was a high risk of the offending being detected, or at the very least, of the Christians becoming aware of the fact that the accused was in bed lying next to BBK (either during that night or the next morning). 247 Further, the fact the accused and CA had separated and BBK was returned to CA’s care after the offending, where he had not sought to silence BBK, or previously groomed her, meant there was a very real risk that BBK would disclose the offending to CA, upon her return. -- 36 of 37 -- [2025] SADC 27 35 248 In addition, there were some aspects of BBK’s evidence which troubled me, the most significant of which related to her returning to the room and sleeping next to the accused after the offending and her inability to recall what she was wearing when she gave her first police statement, given that the removal of her pyjama pants and underwear was a salient feature of the offending. 249 I am mindful that it is impossible to know how a victim of sexual abuse may respond to offending, as is evident from Dr Kenny’s evidence. I am also mindful of the particular difficulties a teenage girl like BBK may encounter when being asked to give detailed statements to adults with whom, she is unfamiliar, reflecting on such difficult and highly personal matters, from many years ago. 250 There is every likelihood that that BBK has given both an honest and accurate account of the offending. 251 However, after carefully considering the evidence and the significant forensic disadvantage the accused has suffered in this case, I simply cannot be satisfied of the reliability of BBK’s account of the alleged offending, to the very high standard of criminal proof, beyond reasonable doubt. Conclusion 252 In those circumstances, I must find the accused not guilty. -- 37 of 37 --