[2025] SADC 39

Prosecution: R Counsel: MR G DUDZINSKI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: MLG Counsel: MR W MICKAN - Solicitor: MANGAN EY & ASSOCIATES Hearing Date/s: 10/02/2025, 11/02/2025, 12/02/2025, 13/02/2025 File No/s: DCCRM-24-015754 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 MLG Criminal Trial by Judge Alone [2025] SADC 39 Reasons for the Verdict of her Honour Judge Sutcliffe 15 April 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The accused is charged with one count of sexual abuse of a child relating to his stepdaughter, KH, between 1 April 2019 and 2 July 2023. The issue in dispute relates to the reliability and credibility of the evidence of KH, particularly as to whether her account of the alleged unlawful sexual acts was implausible, whether her memory was accurate, and whether her account of the alleged unlawful sexual acts was reliable. Held: KH’s evidence was compelling, logical, and plausible. KH’s evidence that the accused inserted his penis into her vagina, caused her to perform fellatio on him, and ejaculated on her body, each of those acts occurring on more than one occasion, was credible and reliable. The accused maintained a relationship with KH between 1 April 2019 and 2 July 2023 and engaged in two or more unlawful sexual acts with or towards KH in that period. Verdict: guilty. Criminal Law Consolidation Act 1935 (SA) s 50(1); Summary Offences Act 1953 (SA) Part 17; Evidence Act 1929 (SA) ss 13C and 34M(4)(a), referred to. R v Corrigan (1989) 74 SASR 454; Morton (A Pseudonym) v The King [2025] SASCA 29; Weragoda v The Queen [2021] SASCA 123, considered. -- 1 of 37 -- -- 2 of 37 -- R v MLG [2025] SADC 39 Introduction 1 The accused is charged with one count of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act). The offence is alleged to have occurred between 1 April 2019 and 2 July 2023 against the accused’s stepdaughter when she was aged between seven and eleven. 2 The prosecution case is that the accused the accused engaged in two or more unlawful sexual acts with or towards KH,1 namely by causing her to perform fellatio on him on more than one occasion, that he digitally penetrated KH’s vagina on one occasion, that he engaged in penile-vaginal sexual intercourse with KH on more than one occasion and ejaculated on her body on more than one occasion. 3 There is no dispute that the accused maintained a relationship with KH during the particularised period or that the alleged conduct, if two or more of the particularised unlawful sexual acts are proven, establishes the elements of the charge. 4 The prosecution relies on KH’s evidence comprising four prescribed interviews made pursuant to Part 17, Division 3 of the Summary Offences Act 1953 (SA) conducted by police on 10 July 2023, 11 July 2023, 18 July 2023 and 5 October 2023 and further evidence from KH in chief and cross examination. The prosecution also relies on circumstantial evidence regarding sleeping arrangements relevant to opportunity, and the presence of sperm on KH’s underwear consistent with being the accused’s sperm, as support for KH’s account. 5 As the critical prosecution witness in this matter is KH, the sole issue at the heart of this matter is whether the prosecution has established that KH’s evidence of the alleged unlawful sexual acts was credible and reliable to prove the offence beyond reasonable doubt. 6 KH’s credit and reliability fall to be assessed in circumstances where KH made an initial complaint to her mother on 10 July 2023 and elaborated on that complaint to Constable Lisa Wright on the same day. At the time of participating in four prescribed interviews with police KH was 11, and at the time of giving evidence in court, was 12 years of age, turning 13 the day after she finished her evidence. 7 The issues relevant to an assessment of KH’s evidence include whether she was reconstructing, imagining, or fabricating her evidence, the accuracy of her memory, and whether her account was inherently implausible. Those matters 1 These reasons refer to the complainant and her brother using the initial representing their preferred surname, which differs from the surname they both used at the time of the police investigation and is different from the complainant’s surname that appears on the Information. -- 3 of 37 -- [2025] SADC 39 2 involve, but are not limited to, a consideration of KH’s prior inconsistent statements and inconsistencies that arose in KH’s account. 8 In support of the argument that KH’s evidence was implausible, the accused submitted that there were aspects of KH’s account that were unlikely to be true. Related to this submission was the assertion that the presence of sperm in KH’s underwear was inconsistent with KH’s account, and that the probative value of the DNA evidence was undermined by other possible explanations for the presence of sperm. It was also submitted that medical evidence that there was no visible injury to KH’s hymen in July 2023 was inconsistent with KH’s allegation that penile- vaginal sexual intercourse commenced when the accused and her mother separated and that it occurred frequently. General directions 9 The accused has the presumption of innocence in his favour. He is presumed innocent until proven guilty by the prosecution beyond a reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of the alleged offence. 10 The accused exercised his right not to give evidence and I do not draw any inference adverse to him, or the case he puts forward, from his exercise of that right. 11 KH gave evidence accompanied by a court companion, with a screen and the court was closed. JH, KH’s younger brother, gave evidence via CCTV with a court companion and the court was closed. Both KH’s and JH’s evidence was recorded in accordance with s 13C of the Evidence Act 1929 (SA). KH’s mother, MS gave evidence with a screen. I remind myself that I must treat the evidence given in these circumstances the same as any other kind of evidence. I have not considered any aspect of the way that the evidence was presented in assessing the evidence or determining what weight to give it. The procedures are common and say nothing about the accused. I draw no inference against the accused from the fact that the evidence was given in this way. 12 During cross examination KH was asked questions relating to the issue of whether she had previously disclosed details that she gave in evidence. KH gave evidence of occasions she had disclosed a matter or matters prior to giving evidence. I direct myself that to the extent this was evidence of a prior consistent statement or statements, it does not make KH’s evidence more likely to be true. 13 In making the assessment of KH’s credibility and reliability I can accept or reject her evidence in whole or in part. -- 4 of 37 -- [2025] SADC 39 3 Elements of the offence 14 To establish that the accused committed the offence of sexual abuse of a child contrary to s 50(1) of the Act, in the circumstances of this matter, the prosecution must prove that between 1 April 2019 and 2 July 2023:2 1. The accused knowingly maintained a relationship with a child; and 2. The relationship was an unlawful sexual relationship; that is, the accused engaged in two or more unlawful sexual acts with or towards KH. 15 An unlawful sexual act means any act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence. 16 The conduct relied on by the prosecution as evidencing the unlawful sexual relationship which if particularised would constitute a sexual offence, are the following unlawful sexual acts: (a) inserting his penis into KH’s vagina on more than one occasion (b) NA (c) causing KH to perform an act of fellatio on more than occasion (d) inserting his finger into KH’s vagina and (e) ejaculating on KH’s body on more than one occasion. Relationships and living arrangements 17 I find the evidence proves the following matters. 18 During the particularised period KH was a child, and the accused, KH’s stepfather, was an adult and he maintained a relationship with KH. 19 KH was born on 13 February 2012 to her mother MS. She has three siblings, an older brother and sister, and her younger brother JH. Her younger brother JH is the biological son of MS and the accused. MS met the accused in 2013, and they married in 2015. The relationship ended in April or May 2019. At the time of the separation KH was aged seven. Six months after the accused and MS separated, they agreed to a shared care arrangement where KH and JH stayed with the accused five nights a fortnight and then returned to MS for the remainder of the fortnight. 20 Immediately following the separation, the accused remained in the same country town where KH, JH and their mother resided, and he moved into a unit. The unit comprised one living space with a kitchenette, bathroom, and laundry. It 2 Morton (A Pseudonym) v The King [2025] SASCA 29 (Kourakis CJ, S Doyle and David JJA). -- 5 of 37 -- [2025] SADC 39 4 did not have a separate bedroom. There was a queen or double sized bed. KH said that JH slept in the single mattress and she and the accused slept in the double one. 21 The accused then lived at premises KH described in her interviews as the old house, from 1 November 2019 until 9 September 2022 when he moved to the premises where he was residing at the time the alleged conduct was reported to police (the N Street premises). 22 Evidence was led that there was an occasion the accused snapped KH’s iPad and that at times he was angry and swore. That is discreditable conduct evidence that is not relied upon. It has no purpose, and I therefore disregard that evidence. I have not used the evidence to reason that the accused was a bad person and therefore the sort of person who is more likely to have engaged in the offending. The evidence of the unlawful sexual acts 23 KH gave an account that the accused caused her to perform fellatio, starting from an unknown time when the accused was living in the unit and then later engaged in penile-vaginal intercourse with her frequently, starting in late 2021. Acts of digital penetration occurred before fellatio or penile-vaginal intercourse and sometimes afterwards. There was no occasion when digital penetration occurred without fellatio or penile-vaginal intercourse occurring on the same occasion. There were occasions the accused ejaculated on her body and inside her vagina. KH gave evidence of particularised occasions of the sexual acts. 24 KH’s account did not emerge in that chronological fashion. 25 In the prescribed interviews KH used the phrases ‘sexual advantage’ and ‘sexual harassment’ to describe what the accused did. 26 In the second prescribed interview KH said the accused had taken sexual advantage of her ‘hundreds’ of times since her parent’s separation, and that sexual advantage occurred two to four times a week. KH then answered questions about when the sexual advantage had occurred and where. KH declined to explain what she meant by the term sexual advantage. She said she did not remember much and was uncomfortable saying it. 27 In the third prescribed interview KH said sexual advantage means someone having sex with you, knowing they can do whatever they want to you, and they will not get in trouble. Sexual advantage meant the accused had sex with her, and he knew she would not say anything about it. KH again said she did not like to talk about sexual advantage. KH was repeatedly asked to describe sex. KH said she did not know how to describe it, did not remember what was the first thing that happened, could not say it and did not know much about it. KH eventually described sex as feeling uncomfortable and involved the accused putting his penis into her vagina. -- 6 of 37 -- [2025] SADC 39 5 28 In the fourth prescribed interview KH used the phrase sexual harassment to refer to an act of penile-vaginal sexual intercourse. KH was pressed for detail about what that meant. KH said she did not know, she thought it was like all the other times, but she meant sex without consent. She did not think there was a word for it. KH was asked what happens in relation to sex. KH said the accused touched her without her permission. 29 KH gave evidence in court that the accused had caused her to engage in fellatio on more than one occasion, that he engaged in penile-vaginal sexual intercourse with her on more than one occasion and digitally penetrated her vagina. KH said acts of digital penetration occurred sometimes, and it occurred before or after acts of fellatio or penile-vaginal sexual intercourse. There were occasions the accused ejaculated on her. KH gave evidence that the acts of fellatio and penile- vaginal sexual intercourse occurred frequently, and she did not remember them all. There were some specific occasions of these acts that she recalled. 30 KH gave evidence of three separate acts of fellatio that she recalled. The first in time occurred at the unit. KH did not identify this as the first occasion, but her evidence that it occurred at the unit means that on her account it preceded the other two acts. KH gave evidence of a specific occasion of fellatio occurring at the old house, and the last occasion, occurred after school at the premises in N Street, a few weeks before the allegations were reported. 31 KH described three separate occasions of penile-vaginal sexual intercourse. One occasion occurred at the old house in the accused’s bed, after she had had dinner and went to bed. Another occasion occurred in a granny flat at her grandparents’ premises at Port Lincoln at Christmas time in 2022. On that occasion the accused touched her private parts with his hands and then sexually harassed her by inserting his penis into her vagina. In evidence KH said the accused inserted his fingers into her vagina before the act of penile-vaginal sexual intercourse, and that she did not remember that occurring at the time of the prescribed interview. The evidence of this occasion of digital penetration was relied on by the prosecution as proof of the particularised conduct of digital penetration. 32 KH gave evidence in court that she started menstruating in January 2022. At first the accused did not use condoms, but he did later. There were times the accused’s penis was near her body without a condom and occasions he ejaculated inside her vagina without a condom, on her stomach or in her mouth. KH said there was an occasion the accused ejaculated on her stomach when he resided at the N Street premises. She thought there was an occasion in the old house, but in cross examination said she did not think there were any times occurring at that location. KH said there was another occasion the accused ejaculated on her stomach at her grandparents’ house, which was a separate occasion from when penile-vaginal sexual intercourse occurred at Christmas time in 2022. KH was not sure if she recalled the first time when that conduct occurred. -- 7 of 37 -- [2025] SADC 39 6 33 The last occasion of penile-vaginal intercourse was a few weeks before the conduct was reported and occurred at the N Street premises in the accused’s bed. 34 KH said there were other occasions of fellatio, digital penetration and penile- vaginal intercourse and ejaculation other than those specific incidents described but that the conduct was so frequent it was difficult for her to distinguish between separate events. 35 In cross examination KH explained that when she used the phrase sexual advantage in the interviews, she had not meant to convey that it was limited to penile-vaginal sexual intercourse. KH said she was not sure how to describe sexual advantage. It was something between two people involving private parts. She came up with the phrase sexual advantage to put it into words. 36 KH said sexual advantage meant sex in general without her consent, which included fellatio. KH explained that when she said in the prescribed interview that the accused had been taking sexual advantage of her for years, she meant the accused had been engaging in penile-vaginal intercourse with her and causing her to perform fellatio, and digitally penetrating her vagina. She did not explain this in the interviews because at that time she could not talk about it and was too scared. Frequency 37 In the second and third prescribed interview KH said there were hundreds of occasions the accused had taken sexual advantage of her, and she would be repeating herself to describe them. It happened two to four times a week. 38 In cross examination KH explained that her statement that it had happened hundreds of times was a guess, based on it happening two to four times a week, and this was a reference to fellatio, penile-vaginal sexual intercourse and digital penetration occurring multiple times. She said there was not an exact number. Use of the evidence of uncharged acts of digital penetration 39 The evidence of multiple occasions of digital penetration, other than the evidence of one occasion at Port Lincoln at Christmas time in 2022, was evidence of uncharged discreditable conduct. It was not relied upon for a propensity purpose. The evidence is relevant to understanding the context of the evidence of the conduct the subject of the charge, due to the close connection between alleged acts of digital penetration and other alleged unlawful sexual acts, KH’s explanation that the phrase sexual advantage encompassed acts of digital penetration, and relevant to an assessment of KH’s evidence about an initial complaint and the elaboration of the initial complaint. 40 There is another non propensity use of the evidence of other occasions of digital penetration, which arises from KH’s evidence that she recalled instances of digital penetration occurring at the time of a prescribed interview, but did not recall at that time, the occasion of digital penetration occurring at Port Lincoln in 2022. Evidence that there were other occasions is relevant to an assessment of the -- 8 of 37 -- [2025] SADC 39 7 reliability of KH’s evidence of the occasion at Port Lincoln, and KH’s explanation that she did not recall the charged occasion until a time after the interview. 41 I have only used the evidence for these purposes. I have not used the evidence to reason that the accused was a bad person and therefore the sort of person who is more likely to have engaged in the offending. KH’s credibility and reliability 42 The issue in dispute is that any unlawful sexual act occurred, the resolution of which involves an assessment of KH’s credit and reliability. 43 Prior to dealing with the matters relevant to KH’s credit and reliability in detail it is useful to set out my findings regarding the initial complaint, the elaboration of the initial complaint and sleeping arrangements, matters which were not significantly in dispute. I also outline my observations of KH’s demeanour which are relevant to an assessment of the inconsistencies that arose in KH’s account. Initial complaint 44 In the second prescribed interview KH said the first person she talked to about the sexual advantage was her mum. She told her in a note. In evidence in court KH said she was an anxious person and never liked seeing people upset and did not know how to tell her mum. She thought she could tell her in a note because she would be able to get her ‘words right’ and she would not have to see her mum cry. She explained that it was hard for her to get her words out and she stuttered a bit and mumbled sometimes. KH gave evidence that she did not know what to say and just wanted to get some words out without having to talk about it in person. 45 KH waited until she was due to be picked up by the accused. She was waiting because she was nervous. She did not sleep the night before. She put a note under her mum’s bedroom door expecting her to find it. When the note was not found after her mum woke up, KH put the note on her bed. 46 KH addressed the note to her mum and to her mother’s partner in the alternative. The note said: “please don’t panic and stay strong for what I’m about to tell you. Dad has been taking sexual advantage of me for a few years now (since the split I think) and I haven’t found a way to tell you guys because I didn’t wanna see you cry. please tell the police. Don’t come to my room. Not until he’s in police custody. Then text me he is, I need time to mentally prepare. from K (sorry its messy)” 47 KH gave evidence in court that she went back to her bedroom and leaned a mattress against her bedroom door to prevent anyone coming in. KH’s mother MS gave evidence that she rang police after reading the note. While MS waited for police, she heard KH sobbing loudly and uncontrollably. -- 9 of 37 -- [2025] SADC 39 8 48 Constable Wright and a colleague attended KH’s home address after 12pm on 10 July 2023. After reading the note provided to KH’s mother, Constable Wright went to KH’s room to speak with her. MS opened the door and KH pushed it back. KH cried and screamed that she did not want to talk. The evidence of KH’s distress is relevant to the assessment of inconsistencies between the initial complaint evidence and KH’s evidence, bearing on the question of consistency of conduct. I do not use the evidence in any other way. It is not evidence that independently supports her evidence that the offending occurred. 49 Constable Wright withdrew and returned a short time later and spoke to KH through a gap in the door. The mattress remained against the door. KH said she was willing to write down what had happened to her but did not want to say it out loud. Constable Wright received three notes. Each note was provided in response to a question from Constable Wright. 50 In combination, the effect of the notes conveyed that “it” started a few years ago and KH was pretty sure it was when her mum and the accused separated. The accused had been touching her and she did not know how to tell her mum without her crying. She had used the phrase sexual advantage because she believed the accused knew she was too scared to tell. The accused touched her private parts every time she went there. The accused used his hands and his parts to touch her private parts. She ended the final note with a sad face emoticon. 51 The initial complaint was admitted pursuant to s 34M of the Evidence Act 1929 (SA). 52 Evidence admitted as an initial complaint is not admitted for the truth of what was said but is admitted for the purposes set out in s 34M(4)(a), namely as to how the allegation surfaced and to assess consistency of conduct. There may be varied reasons why an alleged victim of a sexual offence makes a complaint at a particular time or to a particular person. It is for me to determine the significance (if any) of the evidence in the circumstances of this case. Evidence of an initial complaint may enhance or bolster a complainant’s evidence in two ways: by demonstrating consistent of conduct that is, in making a complaint in the circumstances consistent with what one might expect and by demonstrating consistency of account, by making a complaint in terms that are consistent with the complainant’s evidence of the charged conduct.3 53 KH gave evidence consistent with her feeling responsible for the emotions of others, tending to place the emotional wellbeing of others above her own and as having a desire to please. KH said she reassured the accused on an occasion when he apologised to her for sexually abusing her and she told him she was okay. KH said when he then became emotional, she had to reassure him it was okay. 54 KH’s sensitivity to the emotions of others and tendency to manage those emotions was apparent from KH’s initial complaint, which anticipated her 3 Weragoda v The Queen [2021] SASCA 123 at [55]-[59]. -- 10 of 37 -- [2025] SADC 39 9 mother’s potential emotional response and attempted to manage that response, by instructing her to stay strong. KH’s desire to gain approval or to please was indicated by her apology for her messy handwriting in the note containing the initial complaint to her mum. She also frequently said sorry when giving evidence in court for not remembering something or making a mistake. 55 In the third interview KH explained she did not say anything about the accused taking sexual advantage of her because she felt too scared to say anything, the accused knew she had a problem speaking up for herself and he would get mad at her, and she did not like it when he got mad at her. 56 KH gave evidence that the last occasion of sexual intercourse occurred on a Friday, because on the following Saturday, the accused tried to get on top of her and she said no. He swore at her, called her a cunt, and rolled back over. That is evidence of discreditable conduct. It was not relied on for a propensity purpose and it cannot be used to suggest the accused was a bad person and more likely to have committed the offence. 57 KH said that at this moment she knew she would tell her mother about what had been happening to her. She was upset. Before falling asleep, she cried. She knew she would tell her mum the next week when she was at her mum's house. She wanted to tell her, as it had taken a toll on her mental health, and she snapped. She knew it was not right and did not want it to happen anymore. She knew she should tell her mum and knew that she would. The evidence that the accused tried to get on top of KH and verbally abused her for rejecting him, is relevant to the assessment of KH’s initial complaint. I have only used the evidence in that way. I have not used the evidence to reason that the accused was a bad person and therefore the sort of person who is more likely to have engaged in the offending. 58 KH’s explanation that the mental toll became too much, and that she snapped after she was verbally abused, was highly credible having regard to her stage of emotional development. KH’s evidence and the making of a complaint when she did, was consistent with her developing maturity and with her having an increasing sense of agency. 59 In those circumstances, the complaint was made at the time one might expect it to be made. 60 The lack of detail in the complaint is not a substantial inconsistency in the circumstances in which the complaint was made. KH gave evidence that she did not know what to say and just wanted to get some words out without having to talk about it in person. That evidence is plausible. The lack of specificity in the initial complaint and the elaboration is explicable by KH’s age, and her distressed state at the time. -- 11 of 37 -- [2025] SADC 39 10 61 KH gave evidence that there was no occasion that the accused digitally penetrated her vagina without an act of fellatio or penile-vaginal intercourse occurring on the same occasion. KH gave evidence that she only remembered that the occasion of penile-vaginal intercourse at Port Lincoln in 2022 involved an act of digital penetration after the prescribed interviews were conducted. KH said she always remembered that the accused had digitally penetrated her vagina on other occasions and believed that she had disclosed this in the note to the police officer. 62 On KH’s account, the reference in the note to Constable Wright as to the accused touching her private parts with his hands and his parts was a reference to digital and penile penetration of her vagina, but if she did not recall the occasion of digital penetration at Port Lincoln until after the prescribed interviews were conducted, it was not a complaint about that aspect of the alleged conduct. 63 KH’s complaint was broad, but I am satisfied given KH’s explanation of the phrase of sexual advantage, that KH’s complaint related to the kind of conduct which evidences an unlawful sexual relationship and explains how the allegations it came to light. 64 As there are a variety of reasons why an alleged victim of sexual offending may make a complaint at a particular time to a particular person, there may be a variety of reasons why KH did not allege specific occasions of sexual acts or acts of fellatio or ejaculation. KH’s apparent tendency to avoid conflict, and her expressed discomfort in July 2023 about describing ‘sexual advantage’, means it is not surprising that KH would not complain at an earlier time. Nor, given those matters, is it surprising that the complaint to her mother and police officer, made at a time she was distressed, was broad and did not include detailed allegations. 65 I am satisfied that the initial complaint and the elaboration of the initial complaint demonstrates consistency of conduct, but the breadth of the complaint, and that it did not encompass the occasion of digital penetration the subject of the charge, means it has limited capacity to support KH’s credibility. Observations regarding KH’s presentation 66 Demeanour is an unreliable indicator of the credibility and reliability of evidence. In assessing KH’s credibility and reliability I have carefully examined the content of her account. I make the following observations of KH’s presentation in the prescribed interviews and in court because they are relevant to the analysis of the significance of inconsistencies in KH’s account. I have not used these observations for any other purpose. 67 In the prescribed interviews, KH was animated and relaxed when responding to introductory questions and during innocuous conversational questions. She became downcast and sombre when pressed for details about the allegations of sexual conduct. She often mumbled or spoke very softly and looked away from the interviewer when asked for details about sexual advantage, frequently said she was not comfortable, and she looked and sounded uncomfortable. KH’s responses were -- 12 of 37 -- [2025] SADC 39 11 consistent with her being uncomfortable with the subject matter and experiencing a sense of shame or embarrassment. There was a distinct difference in KH’s presentation and ability to respond to questions when she gave evidence in court compared to how she presented in the interviews. That change was consistent with her being older, and with KH having markedly matured since the interviews were conducted. Sleeping arrangements relevant to opportunity 68 I find that KH and JH each had beds at the accused’s old house and at the premises in N Street. 69 The old house had three bedrooms. KH originally slept in a bunk bed in one of the smaller rooms that she shared with JH, and then both children moved to a larger room. JH had an Xbox beside his bed. Later JH moved to the spare room. The room that KH shared with JH was next to the accused’s bedroom. Across the hallway from the accused’s room and slightly to the left, was the toilet and bathroom. The layout meant that when JH was in the larger shared bedroom, he could see into the accused’s bedroom if he got up during the night to visit the bathroom. 70 The evidence establishes that at the premises at N Street the accused had a bedroom. An Xbox in the accused’s bedroom belonged to and was used by JH. There was an Xbox in the lounge room, which was mainly used by the accused and sometimes by JH. KH used a computer in the lounge room. Another bedroom where JH slept contained two single beds; one was JH’s and the other was KH’s bed. At the time police searched the premises, a clothes basket containing a pair of KH’s underwear and other items was located at the end of KH’s bed. 71 KH gave evidence that she rarely slept in her own bed at either the unit, the premises at the old house or in N Street. KH said she only slept in her room sometimes, either before JH went to sleep or when she wanted to sleep on her own. 72 I find that KH frequently slept in the accused’s bedroom in his bed. KH’s evidence about this was not contested and was supported by JH. In reaching this finding I have not relied on the DNA evidence relating to a bedsheet that was seized from the accused’s bedroom in the premises at N Street. 73 KH gave evidence that she slept in the accused’s bed in a granny flat at her grandparents’ premises at Port Lincoln, which was supported by JH. 74 The evidence about the general layout of the granny flat was not in dispute and I find the following proven. 75 The granny flat contained a bunkbed with a larger bed at the base and single bed elevated above it. The bunk was against a dividing wall that separated another sleeping space, which contained a double bed. -- 13 of 37 -- [2025] SADC 39 12 76 The dividing wall did not extend to the ceiling. The wall was about 2.83 m high. From the top bunk, the wall extended up a metre followed by a gap between the top of the wall and the ceiling. From the top bunk, JH was able to peer over the wall and see into the adjoining sleeping space. At times he did look over the wall. 77 JH said KH did sleep in the accused’s bed and only sometimes slept in the bunkbed below JH. I am satisfied there were occasions KH slept in the accused’s bed at Port Lincoln. 78 The evidence that KH frequently slept with the accused in his bed is evidence of discreditable conduct. It was not relied upon for a propensity purpose and cannot be used to suggest the accused was more likely to have committed the offence. The evidence is relevant to the context of the alleged offending, as evidence of opportunity. I have only used the evidence in that way. I have not used the evidence to reason that the accused was a bad person and therefore the sort of person who was more likely to have engaged in the offending. Is KH’s evidence about penile-vaginal sexual intercourse inconsistent with the medical evidence? 79 KH was forensically examined on 26 July 2023 by forensic paediatrician Dr Tee. Dr Tee’s qualifications and evidence were not in dispute. The evidence establishes that Dr Tee conducted an examination with a reported history of both digital and penile penetration. KH showed signs of puberty. No anogenital injury was observed, which may be either because no injury was caused by sexual contact, or injury had healed prior to examination. 80 To deal with the submission that the lack of hymenal injury raises the reasonable possibility that sexual intercourse did not occur as KH alleged, it is necessary to set out KH’s evidence about penile-vaginal sexual intercourse and Dr Tee’s evidence in detail. Some of the submissions on this topic rested on an assertion that KH’s evidence was that penile-vaginal sexual intercourse commenced when she was eight and pre-pubertal, which if true was likely to have resulted in visible hymenal injuries, and resulted in KH experiencing regular pain and bleeding, which she did not describe. 81 KH did not give evidence that penile-vaginal sexual intercourse commenced when she was eight. Her evidence was that she had her first menstrual period in January 2022 when she was nine. She was unsure when penile-vaginal sexual intercourse first occurred but considered it was in late 2021. I set out her evidence in further detail regarding the sequence and timing of events to illustrate how I have reached that assessment. 82 KH said in the second prescribed interview that sexual advantage had occurred hundreds of times since her parents’ separation, two to four times a week. KH’s evidence in court was that she did not mean this was penile-vaginal sexual intercourse. In the third prescribed interview KH explained that when the accused had sex with her, he put his penis into her vagina, and he had done it ‘lots of times’. -- 14 of 37 -- [2025] SADC 39 13 83 KH was not sure if the first recollection that she had of the accused taking sexual advantage of her occurred before the accused lived in the old house or when he lived there. KH had dinner, possibly sausages, then played games on her computer before going to bed at 8.00pm, or 8.30pm. Then the accused made her go to his room and he took sexual advantage of her. Her brother was asleep. When pressed again to explain sexual advantage KH said she did not feel comfortable and tried not to remember. KH’s reference to this occurring in the accused’s bedroom is consistent with the event occurring at premises at the old house and not at the unit. 84 In her evidence in court KH said the incident she described in the interviews as occurring at the old house involved penile-vaginal intercourse in the accused’s bedroom. The accused pulled her pants down, pulled his boxers down, and put his penis into her vagina. He ejaculated, withdrew his penis and pulled up his boxers. KH went to sleep in the accused’s bed. KH was not sure when it occurred. It may have been in 2022 as that was when she started menstruating. It may have been some time before the move to N Street. 85 KH did not describe experiencing any pain or bleeding on this occasion. Later in her evidence KH described two occasions she experienced pain. One occasion was in 2022 and the other was later. Defence counsel submitted that it was implausible the accused could have penetrated KH’s vagina without causing her pain at a time she was pre-pubertal. In assessing that submission, it is relevant that KH did not purport to recall every occasion of penile sexual intercourse and there is no basis to conclude that KH described the occasion of penile-vaginal intercourse at the old house as occurring before she reached puberty. 86 In the fourth prescribed interview KH was asked if there was a time anything occurred differently or in a different place. KH said there was one occasion at her grandparents’ premises, in the granny flat where she slept, near Christmas time in 2022. It was the same as all the other times. 87 Her brother JH was there sleeping. KH was trying to sleep. After about 30 minutes the accused started touching her. He touched her private parts with his hands. As always, KH felt uncomfortable and then he sexually harassed her, by putting his private parts in hers. KH said the accused pulled her pants down, physically gesturing a pull from the waist. Afterwards the accused did not say anything. He did not usually say anything. He pulled his boxers up; she pulled her pants up and then she went to sleep. 88 In her evidence in court, KH said when she, her brother and the accused retired for bed in the granny flat, JH went to the top bunk in the first room. KH was unsure if she initially went to the bottom bunk. She got into the bed in the master bedroom. After a while, the accused laid on top of her, put his fingers inside of her vagina, moved them in and out, removed them and then put his penis inside her vagina. He moved his penis in and out of her vagina and he ejaculated inside her vagina. The door between the two bedrooms was closed. KH was asked -- 15 of 37 -- [2025] SADC 39 14 questions about the nature of the bunk bed where JH slept. KH volunteered that JH could, if he wanted to, peer through the gap over the wall, but that he did not do that as he was sleeping at the time. She knew he was sleeping because she started off in the bunk bed and then went to the accused’s bed. KH could not recall if the accused wore a condom at the time, but was pretty sure he did not, as they were on holiday, and he did not have them with him. 89 KH said she did not know if she had said so in her interviews, but there were other occasions the accused had sex with her at her nan and pop’s house after her mum and the accused had separated. KH gave evidence there was an occasion the accused ejaculated on her stomach at her nan and pop’s house, which did not occur at Christmas time in 2022. 90 KH agreed she had previously only mentioned that sex with the accused occurred at her grandparents’ premises on the one occasion in 2022. KH said that after her mum and the accused separated, the accused had sexual intercourse with her on each occasion that they visited her grandparents. KH agreed that the first time she disclosed this was when she gave evidence in court. 91 In the third prescribed interview, KH said the last time penile-vaginal sexual intercourse occurred was not the week prior to the interview but the week before that. This would have been the week of 26 June 2023. KH said it was probably a Friday as she did not go to school the following day. It occurred in the accused’s bed. JH was at home. He slept in his room. KH watched YouTube videos, had rice for dinner, watched George of the Jungle and undertook her nightly bedtime routine. She went to sleep in the accused’s bed. His clothes were on the floor and hers were on the bed. Her shirt was on. The accused took sexual advantage of her. He put his private part into hers and she felt uncomfortable. She did not know how to explain what happened because she closed her eyes. He was on top of her. The name for his private part was penis and the name for hers was vagina. She did not want to talk about what he did when his private part was in her private part. It had happened so many times it was normal. He did not say anything to her. She put her pants back on and they went to sleep. The following day she had breakfast and got ready for school. 92 In cross examination KH said that there were a few instances when she bled after penile-vaginal sexual intercourse. She did not think she had mentioned it previously. She experienced a little bleeding following penile-vaginal sexual intercourse; there was an occasion in the middle of 2022, an occasion later in 2022, at her grandparents’ house at Christmas time in 2022. 93 KH gave evidence in court that penile-vaginal sexual intercourse did not start until she was nine. She frequently linked the timing of when penile-vaginal sexual intercourse first commenced to when she reached puberty, which was when she had her first period. -- 16 of 37 -- [2025] SADC 39 15 94 Initially KH gave evidence that penile-vaginal sexual intercourse only occurred after she had her first period which occurred in January 2022, when she was nine. KH explained she usually said she first got her period when she was ten. That KH would describe getting her period when she was ten, when it occurred when she was nine years and 11 months old is understandable and does not raise a relevant inconsistency. She could not recall the first occasion of penile-vaginal sexual intercourse, but it started when the accused lived at the old house. 95 KH later gave evidence that the accused ejaculated in her vagina without a condom a few times before and a few times after she started menstruating. 96 In cross examination, after having her memory refreshed by a prior statement in a written note,4 KH said penile-vaginal intercourse may have happened before she got her period, in late 2021, and that the accused started wearing condoms a few months after she got her period. She knew it was not in early 2021, it was later in 2021. She apologised for forgetting, which was because it was longer ago. KH could not say how many times penile-vaginal sexual intercourse happened before she got her period, just that it was late in 2021. 97 KH gave evidence that she knew that what the accused was doing to her was not right, because she had had a conversation with a girl at after school care, who talked about parents having sex and that it was something that happened between two parents. KH was uncertain about how old she was when the conversation occurred. Initially KH said she was between six and seven. She was not sure if her parents had separated. In cross examination KH said she was not sure, but it would not have been when she was six, it would have been when she was about eight. 98 KH felt confused when her friend said this, because she and the accused had done the same thing, and she was not a parent or the accused's wife. At the time of the conversation, she had not reached puberty. The accused had not engaged in penile-vaginal sexual intercourse with her but had caused her to fellate him. KH had understood her friend was describing penile-vaginal sexual intercourse. 99 It was argued that KH gave evidence that at the time of this conversation the accused had engaged in penile-vaginal sexual intercourse with her. This was not KH’s evidence. There was an aspect of KH’s evidence which gave the impression KH was asserting that penile-vaginal intercourse was occurring at the time this conversation occurred, but it was the product of a misunderstanding about what she was being asked, which was clarified later in cross examination. 100 It was argued that KH’s statement that the accused had ‘done the same thing’ to her at a time when she was eight, was inconsistent with her evidence that penile- vaginal sexual intercourse occurred in late 2021, when she was nine. Defence counsel submitted that on KH’s account, the accused had not done the act KH’s friend was describing. 4 Exhibit MFID2. -- 17 of 37 -- [2025] SADC 39 16 101 I do not consider it is concerning that a conversation of the kind described by KH, might cause KH to feel confused. It would be unusual for an intelligent child in the situation KH described, to reason in a narrow and concrete way and fail to recognise that acts of fellatio might also be a sexual activity that happens between parents. 102 KH gave inconsistent evidence about when penile-vaginal sexual intercourse started, but she did not give evidence that penile-vaginal sexual intercourse commenced when the accused and her mother separated, or when she was eight and or that it occurred over a three-year period. KH’s account was that she could not recall the first occasion of penile-vaginal sexual intercourse but that it did not commence before late 2021. KH was seven at the time her mother and the accused separated. KH’s explanation that the phrase sexual advantage was used to describe a variety of sexual acts, means that her assertion in the prescribed interviews that sexual advantage had occurred hundreds of times since her parent’s separation, cannot be construed as evidence that acts of penile-vaginal sexual intercourse occurred since KH was seven. 103 I turn to the medical evidence. I am satisfied Dr Tee’s evidence establishes the following. Injury from penetration 104 Penile-vaginal penetration can occur to different depths of the genital tissue: to the labia only, prior to reaching the hymen and through to the vagina, or past the hymen and into the vagina. Injury may not occur if penetration occurred at the outer of the hymen, but not through it and into the vagina. 105 Penile penetration through the hymen can occur in pubertal girls without causing injury, as the rise in hormones triggers an increase in volume and elasticity of the hymenal tissue which can stretch to accommodate a certain size before failing. In pre-pubertal girls, penile penetration would be expected to cause injury, as the hymenal tissue has not became stretched, elastic and more voluminous, and the opening size is still relatively small. 106 The date of menarche, that is, a first menstruation, was not a clear demarcation line for those changes to the hymen. Dr Tee said that before menarche, earlier stages of pubertal development occur which affect changes of the hymen. Dr Tee did not elaborate as to the outer time frame when those changes might occur in relation to menarche, but said she would expect to see those changes a month prior to menarche. 107 The configuration of the hymenal tissue of a child around pubertal age, is much more elastic and voluminous. There is more tissue, and penetration can occur without necessarily causing injury. -- 18 of 37 -- [2025] SADC 39 17 108 Any injury sustained in this way from penetration occurring in pre pubertal or pubertal females can heal in a period of weeks or months, but it is otherwise variable and difficult to estimate any recovery period. 109 Injury, likely by laceration (tearing) and bleeding, is more likely to be seen in a pre-pubertal girl where penetration has occurred through the hymen and the examination occurs soon after the penetration. The degree of laceration depends on numerous factors including size, force and direction of the penetrating object. Where penetration does not occur through the hymen, injury is not expected. If there is a laceration of the hymen, pain and bleeding is likely to occur. 110 A hymenal injury may persist after healing as an abnormality in the form a cleft or small separation of tissue. The injury may continue to persist for months or years, but it is difficult to know how long they persist for without continuous examination of the hymen. However, it is difficult to say whether such abnormality is more likely to result from a pubertal or pre-pubertal hymenal injury; in either case, there is a chance that an abnormality will materialise, but it cannot be said in which case it is more likely. 111 Counsel for the accused asked Dr Tee to provide an opinion on potential for hymenal injury based on the following assumptions: • KH had her first period a month prior to turning 10 years old; • Penile-vaginal intercourse had commenced two years preceding her first period; • Penile-vaginal intercourse commenced two to four times a fortnight over that period; and • Penetration had occurred through the hymen. 112 Dr Tee gave an opinion that hymenal lacerations would have been visible based on the assumptions she was given, but the fundamental assumption regarding KH’s age when penile-vaginal intercourse commenced was not raised by the evidence. 113 On the assumptions, Dr Tee could not predict the likelihood of an abnormality presenting. Pain and bleeding would not necessarily occur when KH was pubertal. Multiple episodes of laceration and bleeding increase the risk of abnormality. 114 Variables affect the ability of repeated pre pubertal hymenal injury to remain visible upon examination a year after the penetration. The more there is injury to the same spot of the hymen, the less likely that spot is to heal as well and as quickly as it usually would. The fact that forensic paediatricians are not examining girls frequently to analyse injury means that a trajectory of healing cannot be given. -- 19 of 37 -- [2025] SADC 39 18 115 As the pubertal hymen has a lower likelihood of sustaining injury, penetration through it would not add to any risk of abnormality, unless an injury was, in fact, sustained. 116 Bleeding caused by penetration could last for days but would not be profuse like a blood-nose or menstruation. The nature and extent of bleeding would depend on the severity of any laceration but can be expected to stain a child’s underwear in any event. 117 In the absence of reported bleeding, Dr Tee agreed that there could be three explanations: 1. Penetration did not cause injury; or, 2. Penetration did not occur; or, 3. In the case of girls who are self-toileting, bleeding may have been overlooked. 118 Dr Tee did not provide an opinion as to whether she would expect to see visible injury to the hymen if the first occasion of penile-vaginal intercourse occurred within months before menarche, that is in the earlier states of pubertal development that affects changes to the hymen. 119 There is no basis to conclude that if KH’s account was true, visible hymenal injuries would have been or were likely to have been present at the time of the medical examination. KH was unable to say how many times sexual intercourse had occurred between late 2021 and getting her period in January 2022. Her account was consistent with penetrative sexual intercourse occurring at a time she was around pubertal age, when there would have been pubertal changes to her hymen. Had she suffered injuries, either before or after puberty, it is possible that they had healed and were not visible. 120 Defence counsel argued it was improbable that KH had not experienced bleeding associated with penile-vaginal sexual intercourse before she reached puberty. 121 It is possible that penetration of the hymen occurring before menarche in late 2021 would not cause injury. Dr Tee’s evidence did not exclude that possibility. It is possible that injury and bleeding would be caused. KH’s evidence was that there was minor bleeding on the first occasion, which on her evidence may have occurred before her first period. If there was bleeding on other occasions, it is possible she did not notice. Bearing in mind that KH’s evidence is consistent with having a poor memory of acts of penile-vaginal intercourse before she had her first period, it is not implausible that KH experienced instances of pain and bleeding that she has since forgotten. -- 20 of 37 -- [2025] SADC 39 19 Is KH’s account inherently unlikely or otherwise unreliable? 122 Defence counsel argued that aspects of KH’s account were implausible, and that indications that KH’s memory was poor mean that she cannot be accepted as a truthful, reliable witness. Matters falling for consideration in relation to this issue include the inconsistencies in KH’s evidence, including inconsistencies regarding the timeline of events, prior inconsistent statements, KH’s assertion that her memory was poor and had improved, the risk that KH was reconstructing her evidence, and the amount of detail in her account of the alleged conduct. 123 It is necessary to set out some of the remaining evidence in further detail which is relevant to dealing with these issues. 124 In cross examination KH said she had one vivid memory of the accused’s penis in her mouth occurring at the unit, but a vague memory of the details. Her brother JH was not present. She was not sure how many times it happened at those premises. She could not say whether her memory of that occasion was the first time that it occurred. 125 It was submitted that KH was guessing that her brother was not present, and it was likely he was at the unit whenever KH was there, as the children visited the accused together. 126 It is possible that JH was always at the unit when KH was there with the accused, and/or that KH was guessing when she said her brother was not there. KH did not purport to remember the details of the occasion of fellatio and may have assumed her brother was not there if she had no memory of him being present. KH’s concession that her memory about it was limited, was consistent with KH having an honest but limited memory of the event. That KH may have been wrong about surrounding details or assumed her brother was not present, does not suggest that KH could have been honestly mistaken that the act of fellatio occurred at all. 127 In the third prescribed interview KH identified the incident at the old house as the first time she remembered something happening, other than an occasion she was unsure whether it was a dream. 128 KH was playing at her computer at the old house. It was a different game that she was playing to the one she played before another incident of fellatio that she described occurring later, on an occasion after school. On this occasion at the old house, the accused made her suck his penis. She did that, got up, and then had a drink like she always did, then went back to bed. Later in the interview KH was asked what was the first incident that she remembered. KH said she was little, but she thought it was a dream and did not remember. On being asked to identify a time that she remembered, KH said she thought it was the incident at the old house. 129 In evidence KH said she had a drink on this occasion because the accused had ejaculated into her mouth, and she did not like the taste. In cross examination KH said that her brother would have been in his bedroom, on the Xbox by his bed. -- 21 of 37 -- [2025] SADC 39 20 130 In the third prescribed interview KH described an occasion the accused put his penis into her mouth on a Tuesday afternoon after school, occurring in the last week that she stayed with the accused. KH was playing Roblox on her computer. JH was playing his Xbox in the accused’s bedroom. The accused was at the computer next to hers. He got off the computer, stood up next to her, pulled down his pants and underwear to his to his ankles. KH physically indicated this was to the ankle area. He put his penis in her mouth. KH was asked what happened when the accused put his penis in her mouth. KH’s head was downturned, and she spoke softly. She said she could not say it and did not want to talk, did not feel comfortable and did not know how to explain it. He pulled his pants up. KH was asked if he said anything afterwards. She thought so but did not remember what he said. KH was asked if the accused’s private part did anything after it was in her mouth. KH said yes but could not say what that looked like. She agreed this was the part she wanted to skip earlier in the interview. KH was asked if the accused said anything to her when he got up from the computer before the fellatio. KH could not remember. 131 In evidence in court KH said the accused’s penis was hard. The duration of the fellatio was about three minutes. Afterwards, she got off her chair and went to the kitchen and drank a lime cordial. She had a drink to get rid of the taste, as he had ejaculated into her mouth. KH was asked in cross examination if the accused said anything before the fellatio. KH said he asked her to open her mouth, and she only remembered that after being asked the question. 132 Defence counsel submitted that it was implausible that the accused would engage in the alleged sexual acts when there was a risk of JH witnessing the conduct. 133 There was a risk of discovery but not one that renders the alleged conduct implausible. 134 As observed by Doyle CJ in R v Corrigan (1998) 74 SASR 454 at 468: … 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 that an attempt to commit the offence would be unlikely because of the risk of detection. 135 JH was between four and seven years old when the accused lived at the old house and between seven and eight years old when the accused lived at premises in N Street. On occasion JH would leave his bedroom, be able to see into the accused’s bedroom and would enter the lounge or kitchen area. There was a risk of discovery. 136 There was nonetheless a reduced risk of discovery and corresponding opportunity for the accused to engage in sexual intercourse with KH in a shared bed, and or in fellatio when JH was engaged in an absorbing gaming activity or sleeping. -- 22 of 37 -- [2025] SADC 39 21 137 KH gave evidence that during the incident in Port Lincoln in December 2022, JH was asleep when she went to the accused’s bed. It is not clear what, if anything, JH may have seen or understood he was witnessing, if he looked over the dividing wall of the granny flat and had seen the accused engaged in penile-vaginal sexual intercourse with KH. 138 The risks were not unmanageable having regard to those matters and do not render the allegations inherently unlikely. 139 It was also argued that it was implausible the accused had not spoken to KH about the offending and asked her to keep it a secret, other than on one occasion in connection with a sex education class. This argument assumes that if the allegations were true, the accused would have told KH to keep quiet on more than one occasion and she would recall this. 140 KH did not agree with the suggestion she was saying there was only occasion the accused had told her not to tell anyone. KH said the only occasion she could remember was one that occurred before her participation in a sex education class in 2023. KH gave evidence that she had started sex education at school and consent was a focus of the instruction. The accused asked KH questions to see if anyone had asked her if anything had happened without her consent and told her not to tell anyone. 141 The absence of evidence of multiple requests to keep the conduct a secret does not undermine KH’s credibility or reliability. It is not implausible that the accused may have had an expectation of silence and may not have considered it necessary to regularly raise the issue. That is an available inference on KH’s evidence. KH said she avoided angering the accused and others by keeping quiet and that the accused knew she had a problem speaking up for herself. That evidence was consistent with other aspects of KH’s evidence that indicated her tendency to please others. 142 That the accused instructed KH to keep quiet on the occasion she described, but may not have done so regularly, is plausible. It is consistent with the accused being aware of an increased risk of disclosure at the time of KH’s participation in a sex education class and taking action to deal with that increased risk. 143 Defence counsel submitted that KH’s evidence that sexual intercourse occurred without a condom when there was a risk of pregnancy, was implausible, as such conduct is reckless. 144 Pregnancy would almost certainly result in sexual offending of this kind coming to light. Every act of penile-vaginal sexual intercourse with a pubertal child carries the risk of pregnancy, a risk that is increased if birth control methods are not used. The conduct is inherently reckless conduct. The risk of pregnancy does not render it inherently unlikely that the alleged conduct occurred. Such risks are taken and on occasion pregnancy occurs that brings offending to light. -- 23 of 37 -- [2025] SADC 39 22 145 KH’s evidence was to the effect that the accused would usually wear a condom. Her evidence that there were times the accused ejaculated on her stomach was consistent with the accused using the withdrawal method to manage the risk of pregnancy on those occasions. 146 KH’s evidence is consistent with the accused being aware of the risk of pregnancy and taking steps to manage the risk of pregnancy. That the accused may on some occasions have been more reckless about the risk of pregnancy is not so unlikely as to render KH’s account implausible. 147 It was submitted that it was implausible KH would not report instances of pain and bleeding to her mother. The basis for this reasoning was not articulated and is not self-evident. KH could not meaningfully report the bleeding without also reporting the alleged conduct. 148 It was argued that KH’s inability to recall or describe how condoms were stored in a drawer by the accused’s bed, revealed KH’s lack of credibility and reliability. In essence, counsel’s argument was that if KH could see the condoms in the drawer, she should have been able to describe them, and she could not. 149 KH gave evidence in cross examination that she was not sure where the accused kept condoms at the old house. She agreed with the suggestion that she had seen them stored in the bedside table at the N Street premises. She was “pretty certain” it was the top drawer. KH was asked if she could see them when the drawer was opened. KH did not think so. She remembered seeing the accused going into the drawer and taking one out, but she did not know specifically where it was. 150 KH then agreed with the suggestion that she saw the condoms in the drawer, which contradicted her earlier answers. KH was asked if there was a box or the condoms were loose. She did not know. 151 KH’s inability to say if there was a box or loose condoms is consistent with her not having seen the contents bedside table draw. KH’s answer that she saw the condoms in the drawer, understood in its proper context and bearing in mind her age which made her susceptible to agreeing with the suggestion, is consistent with KH having drawn an inference that the condoms were stored in the top drawer. The account is consistent with KH having seen the accused remove a condom from the area of the bedside table drawer as she lay in the accused’s bed. There is no substance to the submission that her evidence on this topic undermines her credibility or reliability. 152 Police searched the bedroom drawer. No condoms were located. KH’s evidence regarding the use and usual presence of condoms is not corroborated. The lack of corroboration is not a matter that indicates KH’s account was implausible, given other possible explanations, such as the accused having run out at the time of the police search. That possibility that is consistent with KH’s evidence that there were occasions the accused did not wear condoms. -- 24 of 37 -- [2025] SADC 39 23 Does KH’s failure to previously disclose details that were given in evidence indicate that KH’s evidence was not truthful or reliable? 153 In the second prescribed interview KH was asked to describe everything about the first time of sexual advantage. KH said she had the worst memory and tried not to think about it and that was why she forgets. In the third prescribed interview KH said the incidents were all the same, did not change much and it was hard to remember another occasion. 154 In court, KH explained what she meant by having the worst memory. KH said she would forget simple things, was scared and her brain was not working how she wanted it to work and how it was supposed to work. 155 It does not automatically follow that KH was scared or stressed because of the alleged conduct. The process of the interview itself is likely to have been stressful. 156 KH agreed that her memory at the time of the prescribed interviews was muddled, and it was hard for her at that time to put events in a sequence and separate between events. There were specific things that she remembered but even at the time of giving evidence, she did not remember a lot of instances, as it happened so frequently there was nothing specific to recall. She was not sure at the time of making the initial complaint whether the offending had started when her mother and the accused separated. Regardless of the reason for KH’s difficulty in articulating events and providing detail, the task is to assess the credibility and reliability of KH’s account. That task can be more difficult if insufficient detail is provided. 157 In cross examination KH agreed that she had thought about what had happened since the interviews and recalled further detail. She agreed with the suggestion this meant that her memory had improved. Defence counsel argued it was improbable that her memory had improved. I place no weight on KH’s agreement with the suggestion that her memory had improved, which is meaningless and irrelevant. 158 It was submitted that the disclosure of additional details not disclosed in the prescribed interviews, such as that acts of fellatio preceded any act of penile- vaginal intercourse, that an act of fellatio occurred at the unit, that the accused ejaculated on her stomach, that he asked her to open her mouth before an act of fellatio, that there were other occasions of sexual intercourse that occurred at Port Lincoln and occasions of digital penetration, were all inconsistencies that undermined her credit and reliability. 159 KH gave evidence in cross examination that she had always known that acts of fellatio had preceded acts of penile-vaginal sexual intercourse but did not have the words to say it in the prescribed interviews. KH said that she did remember what the accused did when he put his private part into hers, but in the fourth -- 25 of 37 -- [2025] SADC 39 24 prescribed interview she made up the excuse that she could not remember it, as she did not want to say it. 160 The explanation that KH was uncomfortable and had difficulty in articulating the alleged conduct at the time of the interviews was consistent with KH telling the interviewer she wanted to skip the questions about fellatio occurring at N Street and consistent with her demeanour in the interviews. The omission of these details is consistent with KH feeling uncomfortable and her evidence that she could not talk about it and was scared. These omissions do not indicate that the information that KH disclosed in the interviews was unreliable or that she had inaccurately reconstructed her account over time. 161 Defence counsel argued that there was no explanation consistent with the evidence being true for why KH would fail to mention the incident of fellatio at the unit in the third prescribed interview, when she had been asked in that prescribed interview, to recount the first occasion of fellatio that she could recall. 162 KH answered that question by referring to something that she was unsure was a dream or not. She first mentioned the dream matter when she was asked at an earlier stage in the interview if there was another time something different happened that she could report. KH said did not know if it was a dream or not, but she was pretty sure she was young, aged four or five, but she did not know if it was a dream. When KH was later asked in the interview what happened the first time she could remember, KH said it was the incident she thought might be a dream. The interviewer instructed KH to only describe things that she now remembered and asked if there was another time she could remember. KH said, “Ah no I try not to think about it, so I don’t really remember.” She then identified the first time that she recalled as occurring at the old house. KH did not mention the occasion at the unit. 163 In cross examination KH said she did not remember the incident of fellatio at the unit at the time of the interview, and she remembered it subsequently. 164 The interviewer reminded KH that she had described something occurring at the old house and she was asked if there were other times. She said, ‘Ah the first house he had here after my parents split up, it wasn’t really a house it was a small apartment’. KH was not asked for details about what had happened at the apartment, which I consider was a reference to the unit. KH gave evidence in court that she understood this question to be asking her about occasions of sex. As KH’s evidence was that acts of penile-vaginal sexual intercourse did not occur before the accused lived in the old house, and she understood that sex included acts of digital penetration, fellatio and acts of penile-vaginal intercourse, it is possible that KH was referring to an act of fellatio occurring at the unit, but the evidence is unclear. 165 While it is possible that KH had not referred to an act of fellatio occurring at the unit prior to giving evidence in court, it is not surprising that KH might initially -- 26 of 37 -- [2025] SADC 39 25 recall a more recent incident as being the first incident, and then only recall a preceding incident of fellatio occurring at the unit after a period of reflection. It is not inherently implausible that the event might only be disclosed following a direct question as to whether that act had occurred at the unit, at a time after she had reflected on events and when she had an improved ability to describe different sexual acts. 166 There is no basis to assume that a child victim of repeated sexual abuse, who had tried to put the matter out of their mind, should accurately recall and recount occasions of the abuse at the time it is first reported or in the months immediately following the report. It is not unusual or surprising that some details of an event a person had tried to not think about, and or additional events, might be recalled following a period of contemplation. 167 It is plausible that KH felt overwhelmed at the time of the interviews and was stressed, hindering her ability to recall and give a fulsome account. The account KH gave of her brain not working at the time of the interviews and being scared, was consistent with KH being acutely stressed. 168 I do not consider the failure to specify that an act of fellatio occurred at the unit is a significant omission relevant to KH’s credit or reliability. 169 Nor do I consider it significant that KH’s evidence that the accused ejaculated into her mouth, on her stomach, and in her vagina, were matters first disclosed only shortly before the trial or for the first time when giving in evidence in court. The topics regarding ejaculation and the use of condoms were not matters that, at the age of 11, KH could be expected to think or understand were important. KH’s account in the prescribed interview of consuming a drink following fellatio was consistent with ejaculation having occurred and as having failed to mention it because she was too uncomfortable to articulate it. 170 KH’s evidence that the accused told her to open her mouth before an act of fellatio was first disclosed in cross examination. It is the kind of detail that KH might only recall after a period of reflection and when her memory was refreshed by a direct question. The evidence that he told her to open her mouth was consistent with the act of fellatio occurring. It is not a matter that suggests her evidence was invented or unreliable. 171 KH agreed that the first time she gave evidence of multiple occasions of digital penetration, including that there were occasions of digital penetration without fellatio or penile-vaginal intercourse occurring, was when she gave evidence in chief. KH had not given evidence there was an occasion that digital penetration occurred without other sexual activity. To the contrary her evidence was that it did not occur. 172 KH conceded that she had not, prior to giving evidence, alleged specific multiple occasions of digital penetration, but asserted she believed she had -- 27 of 37 -- [2025] SADC 39 26 disclosed the topic in a note she gave to a police officer on the day she provided a note to her mother. KG had also given evidence that she did not explain that the phrase sexual harassment encompassed acts of digital penetration and fellatio because she was scared. It is not a significant inconsistency relevant to her credit or reliability. 173 KH agreed with the suggestion that she did not mention that an act of digital penetration occurred at Port Lincoln at Christmas time in 2022, because she did not recall that this had occurred at the time of the interview. KH was not sure when she remembered that the accused ejaculated on her stomach. KH said it was probably when the prosecutor interviewed her the week before trial. She had not disclosed it previously. 174 These omissions amount to inconsistencies regarding the occurrence of acts relied upon as evidence of the charge. 175 KH’s agreement that she could recall what she did not remember at the time of the fourth interview, which occurred sixteen months or more before KH gave evidence, seems to involve an unlikely, complex process of memory retrieval. KH was also susceptible to suggestion and may simply have agreed with the suggestion she did not recall it, because that was consistent with her failing to mention it in the interview. KH’s tendency to agree with suggestion was demonstrated by her agreement that she saw condoms in the top drawer and her agreement that she had given evidence about isolated acts of digital penetration, which was incorrect. 176 There is no evidence regarding what KH meant when she used the word touch in the fourth interview when she said the accused touched her vagina, but KH’s evidence that she used the word touch in the elaboration of her initial complaint to the police officer to describe other acts of digital penetration, means it is possible that this is what she meant in the fourth interview. 177 On the other hand, it is possible that KH did not recall at the time of interview that an act of digital penetration occurred. KH did on occasion disagree with a suggestion that was put to her, and KH drew a distinction between always remembering other acts of digital penetration she had not previously mentioned, and not always remembering that it occurred on the occasion at Port Lincoln. 178 On KH’s account, acts of digital penetration and ejaculation were part of the surrounding details of some acts of fellatio and penile-vaginal sexual intercourse. KH’s account in the third interview was consistent with her being uncomfortable about describing ejaculation. Notably the questions in the prescribed interview were open, very broad and did not expressly raise the topic of ejaculation or digital penetration. 179 It is possible KH did recall that acts of ejaculation occurred but did not mention it in the interviews due to discomfort, or that she simply did not think about it during the interviews. I do not consider that the omission suggests KH’s -- 28 of 37 -- [2025] SADC 39 27 evidence about instances of ejaculation was invented or that she could have been mistaken that it occurred. 180 The omission of the act of digital penetration in KG’s fourth interview carries greater significance when assessing the reliability of KH’s evidence about that act. This is because there is a close temporal connection between the alleged act of digital penetration and the act of penile-vaginal sexual intercourse on that occasion, and because KH gave evidence that digital penetration only occurred sometimes, while also stating that the occasion of penile-vaginal intercourse at Port Lincoln was like all the others. Do the other inconsistent statements indicate KH’s evidence was not truthful or was unreliable? 181 Dr Tee gave evidence that KH told her in response to a question, that she was eight or nine when penile-vaginal sexual penetration first occurred. 182 KH could not recall giving that response. Given the importance of the answer to Dr Tee’s question to the medical examination Dr Tee was conducting, I am satisfied that Dr Tee made an accurate record of the response, and that KH said she was eight or nine. That statement is partially inconsistent with her evidence that penile-vaginal intercourse did not commence when she was eight, it was when she was nine. It was an important inconsistent statement on the defence case, because evidence of penile-vaginal sexual intercourse at the age of eight was inconsistent with the results of the medical examination. 183 In answering questions about this inconsistent statement KH said she did not think the statement was the truth, because the reason penile-vaginal intercourse did not occur earlier than it did, was because “it would not fit”, because she had not started puberty yet. That answer is potentially evidence of an act of attempted penile-vaginal sexual intercourse occurring before the particularised period of offending, and if so, is evidence of uncharged discreditable conduct. The evidence KH gave on this topic is only relevant to the assessment of the inconsistent statement. I have not used the evidence for any other purpose. I have not used the evidence to reason that the accused was a bad person and therefore more likely to have engaged in the offending. 184 In explaining the inconsistent statement to Dr Tee, KH said she probably did not remember or know exactly when it started, and that was her fault. 185 KH did not recall that acts of penile-vaginal intercourse occurred before puberty when she met with the prosecutor before trial. 186 KH’s difficulty in identifying when penile-vaginal sexual intercourse first commenced and the inconsistencies in her account on the issue, may be explicable by her age, the passage of time and the frequency of alleged events. That she would not have a clear linear memory of these matters is not surprising. KH’s inconsistent statement to Dr Tee was made at a time the allegations had just been -- 29 of 37 -- [2025] SADC 39 28 disclosed for the first time. At that time KH considered her memory of the timeline was poor. She also said she had tried to forget. 187 These matters undermine KH’s reliability regarding the timeline, but I do not consider they undermine her credibility or reliability generally. 188 KH agreed she had told Dr Tee there was an occasion in late 2022 that she experienced bleeding and that she did not tell her about any other occasions. KH said at the time of speaking with Dr Tee she did not remember it occurring. The first time she mentioned the other occasions of bleeding was in cross examination. KH readily accepted she had not mentioned it before. I do not consider the inconsistent statement to Dr Tee about the occurrence of bleeding is strongly probative of KH’s credibility or reliability, as it is explicable by KH’s age and the circumstances of the medical examination occurring soon after the allegations were first disclosed. 189 KH gave evidence that there were times the accused ejaculated on her stomach or in her mouth. KH was asked what house she was in when the accused ejaculated on her stomach. KH said there was one occasion in N Street and one occasion in the old house. In cross examination KH denied there was an occasion the accused ejaculated on her stomach at the old house. The contradictory answers are not readily explained by KH inventing her evidence to falsify a story, or her memory of events having changed between examination in chief and cross examination. I consider that KH may have wrongly assumed she was being asked by the prosecutor what house she was in when the accused ejaculated on her stomach or in her mouth. The answer she gave was consistent with her evidence about where those acts occurred. KH’s initial answer that there was an occasion that occurred at the old house is not one that is significant to an assessment of her credibility or reliability. Presence of sperm on KH’s underwear and on the accused’s bedsheet 190 The prosecution led evidence of the forensic examination of a pair of underpants identified as belonging to KH, and a bedsheet seized from the accused’s bed at his premises in N Street. It was argued that the presence of sperm on the crotch of the underpants and on the bed, consistent with being the accused’s sperm, was circumstantial evidence consistent with KH’s account. Similarly, it was argued that the evidence indicating that KH’s DNA was present on the bedsheet, supported her account that there were occasions she slept in the accused’s bed. 191 The evidence of the presence of sperm on the accused’s bedsheet and the presence of a DNA profile consistent with being KH’s DNA on the bedsheet is of low probative value. I have not had regard to that evidence in assessing whether the prosecution has proven the charge. 192 The DNA evidence regarding the examination of the underwear was not in dispute. It was argued that the evidence could not be used to support the credibility -- 30 of 37 -- [2025] SADC 39 29 of KH. Defence counsel argued the prosecution could not prove that the deposition of semen was due to sexual offending against KH, as other possibilities were not excluded. 193 I now summarise my factual findings on this topic, which are based on the agreed facts and uncontested evidence from Ms Harkin, forensic scientist at Forensic Science SA, before dealing with the probative value of the DNA evidence. The DNA evidence 194 A pair of KH’s underpants were retrieved from a clothes basket at the end of her bed at the accused’s premises in N Street on 20 July 2023. The clothes basket contained other items. The inner crotch of the underpants was examined. Blood was not detected in an area of brown staining. A presumptive screening test for acid phosphatase (AP), present in semen, was positive in some areas of the inner crotch. Some surfaces of the inner crotch were not positive to AP. 195 AP is a presumptive screening test for semen. AP is also present in other biological fluids at much lower levels. Non-biological fluids can result in a false positive result to AP. If the colour does not change on a strip for an AP test within 60 seconds, it is deemed negative. False positives generally take longer to react and generally produce an off colour which is not the distinctive purple. 196 The AP test on the underwear reacted, turning purple in about 15 seconds. The presence of semen was confirmed by microscopy in the areas of the inner crotch that tested positive to AP. Sperm must be present to conclude the presence of semen. Whole sperm were not observed. It is rare, but possible to observe whole sperm on underwear. 197 The brown staining on the underwear did not return a presumptive positive test for blood using Hemastix. The brown staining was not identified. Other visible white staining on the crotch reacted positive to the AP test but was not tested for sperm. The staining may have been vaginal secretions. Urine or faecal matter can test positive for AP. Vaginal secretions generally result in a slower reaction time to the AP test, taking 30 to 40 seconds to produce the colour purple. 198 It was possible that sperm was deposited on the underwear in a laundry wash cycle and the AP test was a result of vaginal secretions, urine or faecal matter, but as the positive AP result was returned within 15 seconds and sperm was present, the more likely scenario was that the AP result was a reaction to semen deposition. 199 Two areas of the inner crotch that returned a positive result to the presumptive test were sampled for DNA profiling. The cutting was taken either from an inner or outer layer of the underwear. 200 From the first sample area marked as .02, a mixed DNA profile was obtained from the sperm fraction, which contained sperm, and which may have also -- 31 of 37 -- [2025] SADC 39 30 contained other cells. Two individuals contributed to the DNA profile that was obtained. One contributor was male, contributing about 96% of the DNA to the profile. The mixed profile was separately compared to a reference sample obtained from the accused and reference sample obtained from KH. 201 The mixed DNA profile was greater than 100 billion times more likely to be obtained if the accused and another person were the source of the DNA, rather than two other individuals. 202 On the verbal equivalency scale, this equates to extremely strong support for the accused being a contributor to the sperm fraction. 203 The minor, weak DNA component of the sample aligned with KH’s DNA profile and the comparison was given a statistical weighting of 240,000 in favour of the hypothesis that KH and another person were the two contributors, as opposed to two unknown contributors. The analysis provides very strong support for KH being a contributor. 204 An epithelial cell fraction was isolated from the remaining cells. A mixed DNA profile from three contributors, two male and one female, was detected in the epithelial fraction and compared against the reference samples. There was one major female contributor and two minor male contributors. The female contributor contributed about 98% and the other two about 1%. 205 The probability of obtaining the mixed DNA profile of the epithelial fraction was expressed to be 100 billion times more likely if KH was a contributor opposed to someone else, providing extremely strong support for her being a contributor to that profile. The probability of obtaining the profile of the epithelial fraction was expressed as 130,000 times more likely if the accused was a contributor as opposed to someone else, providing very strong support for him being a contributor to the profile. 206 The person who contributed the most DNA aligned with KH’s reference profile. The other two contributors were minor. A ratio value for a son of the accused could not be given without further information. If it was assumed that the accused contributed to the profile, the third contributor was not a male relative of the accused. 207 Sperm can be deposited on an item directly or transferred by direct contact, which occurs more readily in a wet solution. A high number of sperm heads would be expected to be observed in that scenario. DNA can be transferred from one item of clothing to other clothes particularly between persons who cohabitate. DNA can be transferred from one item of clothing to other clothes in the wash, including sperm. The level of sperm on an item that has been co-washed would be less than on an item where sperm has been directly deposited or deposited by other means. Water in the washing machine assists in transfer of dried sperm to other items. -- 32 of 37 -- [2025] SADC 39 31 208 The sperm level observed on the slides taken from the underwear and the bedsheet was estimated by the analyst as being in the low category. A classification of low can mean the analyst saw as little as six sperm on the slide. The number of visible sperm heads in a slide does not permit a conclusion to be drawn about the likely manner of deposition or transference due to the variables in the process of analysis. 209 A direct deposition of sperm onto a sheet could be expected to produce a high number of sperm heads in the sample and tails would be expected to be observed if the slide was prepared soon after the deposition. There was no method of determining when the DNA from the contributors was deposited on the sheet or in what sequence. 210 A higher level of sperm would be expected to be seen following direct deposition as opposed to another scenario of transference such as through washing. DNA profiles have been known to be obtained because of washing machine transference, often involving either no profile at all, or an incomplete partial profile. There may have been one instance where a full DNA profile was obtained. Probative value of the DNA evidence 211 The evidence regarding the DNA analysis of KH’s underwear is circumstantial evidence consistent with the accused’s sperm having been deposited on KH’s underwear, from penile-vaginal sexual intercourse with KH. KH did not purport to give an exhaustive account of all the occasions of penile sexual intercourse or an exhaustive account of occasions that occurred without a condom. 212 There is no basis to infer when deposition occurred, and no evidence as to how long the underwear had been in the washing basket. 213 It was argued that the other possible explanations for the presence of sperm on the underwear fell to be considered in a context where KH alleged the last occasion of penile-vaginal intercourse was in the last fortnight she attended the accused’s house prior to the underwear being seized, and that the accused wore a condom on that occasion. 214 KH did not give evidence that the accused wore a condom on the last occasion of sexual intercourse, although on her account he would usually wear a condom. On KH’s account it is possible that the accused did not wear a condom on the last occasion of penile-vaginal sexual intercourse, a possibility consistent with no condoms being located at the accused’s premises in the search by police. 215 The suggestion that the DNA may have been transferred by the accused ejaculating on a towel or other fabric, that was then placed in the laundry basket in the children’s bedroom seems unlikely, but the DNA evidence alone does not establish how it was deposited. Means of direct and indirect deposition other than deposition from sexual intercourse are not excluded. -- 33 of 37 -- [2025] SADC 39 32 216 In combination, the rapid reaction time to the presumptive test for semen, the presence of sperm and that a DNA profile was obtained are matters that render it unlikely that the DNA profile resulted from transference in the washing machine, but that possibility was not excluded. 217 The DNA evidence of itself does not prove that sperm was deposited on the underwear because of penile-vaginal sexual intercourse, but the alternative possible explanations do not deprive the evidence of the capacity to support KH’s account that there were occasions that the accused engaged in penile-vaginal sexual intercourse with her. Those other possibilities limit the probative value of the evidence. The evidence is of some, but not significant probative value. It is of limited weight in the assessment of whether the prosecution has proven its case. Credit and reliability findings 218 KH’s explanations in the prescribed interview about sexual harassment and sexual advantage were compelling. The account of the alleged conduct emerged following skilful, patient and open questions. The content of KH’s account and the incremental way it emerged was inconsistent with the allegations having been intentionally invented. KH’s explanations were consistent with being the response of a child struggling to put into words, for the first time, acts of sexual abuse she had experienced and explaining that the acts occurred without her consent and under an expectation there would be no repercussions. KH’s use of the phrase sexual advantage to explain these concepts was consistent with her age and her evidence that she had participated in sex education lessons about consent, where it might be expected that concepts of consent and power are relayed in a way that would be understood by a child to mean that sexual offending involves taking advantage of another. 219 KH’s evidence was logical, and plausible. The accused had the opportunity to offend against KH in a shared bed and when JH was asleep or distracted by a gaming activity. There was nothing about KH’s evidence that caused me to consider her account was invented or exaggerated. Her evidence was expressed in a manner that was consistent with her age. The initial complaint and elaboration of the complaint is of limited weight but broadly supports her credit, and while also of low probative value, the presence of sperm in KH’s underwear, consistent with being the accused’s sperm, is consistent with KH’s account of penile-vaginal sexual intercourse occurring. 220 KH’s account of the alleged conduct contained the amount of detail that might be expected having regard to her age, alleged frequency of the acts and her account of similarity of the conduct. That KH gave an account where she may have been confused about the order of events, or whether an occasion occurred on a school day, are not matters that are significant given the time span of the allegations and KH’s age. 221 I do not consider that KH’s account was so lacking in specificity that the ability to test or assess the reliability of her account of the offending was impeded. -- 34 of 37 -- [2025] SADC 39 33 Despite KH’s stated difficulty in distinguishing between events of sexual advantage, KH did specify individual occasions and provided contextual details of some of those. 222 KH provided details that were consistent with her having had experienced the event that she alleged. KH’s evidence that she could not describe what happened during penile-vaginal sexual intercourse because she had closed her eyes, was compelling evidence, consistent with being an attempt to shut out what was happening to her. KH’s assertion in the prescribed interview that she consumed a drink after an act of fellatio, and her explanation in evidence that it was to remove the taste of the accused’s ejaculate, had the quality of being an authentic account of a lived experience of a child. 223 KH was aware that her evidence was at times different from accounts she had previously given, but I am satisfied she was motivated to give an accurate account that accorded with her current memory. 224 Her desire to be accurate was evident in her responses in cross examination regarding the incident that she said may have been a dream. In cross examination KH said the incident she described as a dream in the interview, was an act of fellatio occurring when she was living in Port Lincoln and the accused was drunk. She said she was not sure at the time of the interview whether it was a dream, because it was so long ago, and she did not know if she could rely on her memory. She did not want to accidentally say something that was not true. 225 KH remained uncertain about whether it was a dream but had thought about it since the interview and remembered details such as what she was wearing and how it felt. The possibility that KH intentionally fabricated the account of the dream is excluded by the following response KH gave in cross examination as to whether it had happened. KH said: A I'm going to - I'm going to say that no, it didn't happen, just to be sure that I'm not lying. 226 I am satisfied that KH was confident that her account of the alleged conduct was drawn from memories of events that occurred to her, because she conceded she could not be certain this was the case in relation to the dream incident. I am satisfied she did her best to relay events honestly and to the best of her recollection. 227 An honest account can nonetheless be unreliable. Aspects of KH’s account such as the timeline, were uncertain, there were inconsistencies in her account and her account regarding an act of digital penetration at Port Lincoln in 2022 was inconsistent. I have considered these matters separately and in combination. 228 While it is possible that KH’s account about surrounding details of the alleged acts of fellatio and penile-vaginal sexual intercourse was unreliable, such as whether her brother was in the premises on an occasion when an act of fellatio occurred, or whether something was said by the accused before an act of fellatio, -- 35 of 37 -- [2025] SADC 39 34 it is implausible that KH could have been honestly mistaken about the nature of the particularised unlawful sexual acts or that they occurred at all. KH’s evidence regarding these acts was coherent and plausible. 229 I do not consider that KH’s disclosure of matters for the first time at trial or shortly before trial, including previously undisclosed instances of penile-vaginal sexual intercourse and fellatio, suggest that KH was constructing an account or that her account of those events was unreliable. It is not inherently implausible, in a context where KH said the ‘sexual advantage’ had happened hundreds of times and that she had difficulty in recalling singular occasions, and difficulty expressing details, that the matters KH disclosed for the first time at trial or shortly before trial, was because she had reflected on matters and remembered further events and details and or had an increased capacity to articulate those details due to her increased maturity. 230 The omission of details from KH’s prescribed interviews regarding acts of digital penetration and ejaculation is also not surprising when those acts were recounted as part of the broader context of her account of occasions involving fellatio and penile-vaginal intercourse. Those omissions are not significant to KH’s credit or reliability. 231 However, KH’s assertion in the fourth prescribed interview that the occasion of penile-vaginal sexual intercourse at Port Lincoln occurred in the same way as the others, and her evidence that digital penetration only occurred sometimes, means the omission of a reference to digital penetration in her interview raises the possibility that KH may have been mistaken that an act of digital penetration occurred on this occasion. 232 It is possible that digital penetration did occur and that KH either did not recall that detail at the time, it being a less prominent or less significant aspect of the event to her, or alternatively, that she recalled it but felt too uncomfortable to disclose it in terms that identified it as an act of penetration. Both possibilities are understandable in the context of a child describing intimate and distressing events. KH’s evidence of the occasion of digital penetration and penile-vaginal sexual intercourse was credible and plausible, but the inconsistency in KH’s account means I cannot be satisfied that an act of digital penetration occurred on this occasion. I do not consider that this undermines KH’s reliability generally. I am satisfied that KH’s evidence that penile-vaginal sexual intercourse occurred on this occasion was reliable, as it was the central aspect of her account which identified the event as an occasion of when the accused took sexual advantage of her. Remaining findings 233 KH’s evidence regarding acts of fellatio, penile-vaginal sexual intercourse and ejaculation was credible and reliable. I am satisfied beyond reasonable doubt that the three separate instances of fellatio and penile-vaginal sexual intercourse recounted by KH occurred. I am also satisfied that other acts of fellatio and penile- vaginal sexual intercourse occurred. I am satisfied there was an occasion the -- 36 of 37 -- [2025] SADC 39 35 accused ejaculated on KH’s stomach at the premises at N Street and another occasion at Port Lincoln. 234 I am satisfied beyond reasonable doubt that the accused maintained a relationship with KH between 1 April 2019 and 2 July 2023 and on two or more occasions engaged in unlawful sexual acts with or towards KH involving the following acts, each of which occurred on more than one occasion; inserted his penis into her vagina, caused her to perform an act of fellatio, and ejaculated on her body. Verdict 235 I find the accused guilty. -- 37 of 37 --