[2025] SADC 47

Prosecution: R Counsel: MS B SPROD - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: MHH Counsel: MR J MARCUS - Solicitor: MATTHEW MITCHELL SOLICITORS Hearing Date/s: 11/03/2025 to 14/03/2025, 20/03/2025 File No/s: DCCRM-24-028596 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 MHH Criminal Trial by Judge Alone [2025] SADC 47 Reasons for the Verdict of her Honour Judge Kudelka 5 May 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 the offence of Sexual Abuse of a Child contrary to s 50(1) of the Criminal Law Consolidation Act, 1935. At the time of the alleged offending he was in a de facto relationship with the complainant's mother. It is alleged he committed unlawful sexual acts with the complainant over a three month period in 2022 when the complainant was aged eight and nine years old. Verdict: Guilty. Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 13BA, s 29C s 34M, s 34P, s 34 R, referred to. AWK v Tasmania [2004] TASCCA 5; BQ v The King [2024] HCA 29; R v Schulz (2016) SASR 476; R v Ahmadi, R v Hosseini, R v A,N, R v M,A (2018) 131 SASR 64; R v J, A (2009) 105 SASR 563; R v Szejnoga (1998) 199 LSJS 97, applied. -- 1 of 32 -- -- 2 of 32 -- R v MHH [2025] SADC 47 Criminal 1 The accused is charged with the offence of Sexual Abuse of a Child contrary to s 50(1) of the Criminal Law Consolidation Act, 1935. 2 The particulars of the offence are that between the 31st day of December 2021 and the 1st day of April 2022, the accused maintained an unlawful sexual relationship with the complainant, a person under the age of 17, by engaging in two or more unlawful sexual acts with or towards her, namely touching her vagina on more than one occasion. 3 At the time of the alleged offending, the accused was in a relationship with the complainant’s mother. The accused and the complainant’s mother are the parents of the complainant’s younger brother. 4 The accused elected for trial by judge alone. Elements of the offence of Sexual Abuse of a Child 5 An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. The offence has four elements: 1. The accused knowingly maintained a relationship with the complainant in the relevant period. 2. The accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship. 3. The complainant was a child during the relationship. 4. The accused was an adult during the relationship. 6 The prosecution must prove each element of the offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt, or that the accused is possibly or even probably guilty. 7 The first element was not in dispute. At the time of the offending, the accused was living with the complainant’s mother, the complainant and her two brothers in the same home at Edwardstown. The complainant called the accused ‘daddy’.1 She gave evidence they had a ‘pretty good relationship … like we would act like actual daughter and father’.2 They went out shopping with her little brother. 1 T27. 2 T27. -- 3 of 32 -- [2025] SADC 47 2 8 The accused gave evidence that he worked full time during the week and tried to spend as much time as he could with the complainant’s mother and children on the weekend. They went out shopping; he would buy toys for the children, including the complainant. They might have a barbeque at home on the weekend, plan to go out for dinner or go to the beach.3 9 The third and fourth elements were not disputed. The complainant was aged eight and turned nine between 31 December 2021 and 1 April 2022. The accused was aged 32 and turned 33 in late March. 10 I find the first, third and fourth elements proved beyond reasonable doubt. 11 The issue at trial was proof by the prosecution of the second element of the offence. The defence case was that the accused never committed any unlawful sexual acts with the complainant. Witnesses 12 The prosecution called seven witnesses: the complainant, the complainant’s mother, a teacher at the complainant’s school (Ms AB), the Principal at the complainant’s school (Mr CD), the investigating officer (Detective Stacey Jacobs) and an expert witness (Ms Patricia Rayment). 13 The accused elected to give evidence in his defence. In doing so, he took on no onus of proof. He has the presumption of innocence in his favour. I must assess the evidence of the accused as I would assess the evidence of any other witness but with the important caveat that he is not required to prove anything. The burden of proving the offence remains solely on the prosecution. Chronology 14 In about 2015, the complainant’s mother and the accused commenced a relationship. In 2018, the complainant’s younger brother was born and the accused moved in to live with the family. From late 2018, the family lived at a house in Edwardstown when the complainant was five years old. During the relevant period (January to March 2022), the complainant’s older brother was 14 years old, and her younger brother was three years old, turning four in March 2022. 15 The complainant alleges the offending began at the beginning of 2022, ‘I’m pretty sure it was like January’.4 It started after Christmas and New Year and during the holidays.5 It ended in March 2022.6 The offending stopped by the time her aunt moved into the Edwardstown address which she believed was in April or 3 T228-230. 4 Exhibit P1; MFI P1A, pages 5, 8; MFI P1B, pages 4, 6. 5 T29. 6 Exhibit P1; MFI P1A, pages 3, 5; MFI P1B, page 4. -- 4 of 32 -- [2025] SADC 47 3 May that year.7 Her aunt slept in her bedroom.8 The complainant’s mother gave evidence her sister arrived to live with them in Adelaide on 5 May 2022.9 16 In October 2022, the relationship between the accused and the complainant’s mother ended. 17 On 16 November 2023, the complainant disclosed some information about the alleged offending to her teacher, Ms AB, after a class at school. She gave more information to the school principal, Mr CD. Her disclosure led to the police becoming involved. 18 On 10 December 2023, the complainant participated in her first prescribed interview with the police.10 She was then aged 10. 19 On 11 February 2024, the accused was arrested. 20 On 22 June 2024, the complainant was interviewed for a second time.11 She was then aged 11. 21 The complainant was 12 at the time she gave her evidence at trial. The allegations 22 The prosecution case is that on multiple occasions the accused indecently assaulted the complainant by using his hand to rub her vaginal area over and under her underwear. It always occurred in the complainant’s bedroom when she was lying on her bed playing a game on her mobile phone and her mother was away from the house. 23 The complainant gave evidence that the accused touched her, ‘like in a really uncomfortable places and stuff’ more than one time.12 The last time it happened was in March, but she was not able to remember the date: • ‘I would be like um playing my phone and like um he would like come into my room and then um he would like touch me where, and again I couldn’t like speak or do anything because I was scared to like do it’.13 7 T38. 8 T38. 9 T90. 10 Exhibit P1. The interview was admitted pursuant to s 13BA(3)(b)(i) of the Evidence Act, 1929. The audio visual record of the interview was made pursuant to Part 17 Division 3 of the Summary Offences Act, 1953 and I was satisfied that the complainant had the capacity to give sworn or unsworn evidence at the time the recording was made. The transcript of the interview was an aide memoire, MFI P1A. 11 Exhibit P1. The interview was admitted pursuant to s 13BA(3)(b)(i) of the Evidence Act, 1929. The audio visual record of the interview was made pursuant to Part 17 Division 3 of the Summary Offences Act, 1953 and I was satisfied that the complainant had the capacity to give sworn or unsworn evidence at the time the recording was made. The transcript of the interview was an aide memoire, MFI P1B. 12 Exhibit P1; MFI P1A page 3. 13 Exhibit P1; MFI P1A page 3. -- 5 of 32 -- [2025] SADC 47 4 • Her door was open; he half closed the door.14 ‘So he would come into my room and while I was playing that game um he would like reach down under my pants and then like touching my private part…I didn’t like it’.15 She was wearing shorts and a t-shirt.16 She was lying on her back, laying straight on her bed.17 He was sitting on the edge of the bed.18 He reached down her pants.19 He touched her under her underwear.20 He was rubbing her vulva back and forth with his hand.21 She did not know what he was doing with his other hand. Her vulva ‘felt really uncomfortable and it just didn’t feel right’.22 She ‘wanted to tell him to stop but I felt like that he was going to hit me’.23 She remained on her phone. • ‘After he’d do some uncomfortable things he would leave and I would just like um, I would be in my bed, I was like, I tried to cry but I couldn’t cry because I was so in shock’.24 She would take deep breaths and try to continue playing her game (Roblox) and she would go to the toilet.25 • The accused ‘would go out of my room and like wash his hands and go back to his room and I would be like, I would be shocked and scared of what just, like I was, I couldn’t even move or anything’.26 She could hear the tap running from the bathroom.27 • He was in her room for ‘ten minutes or so’. She could not remember if he said anything. It made her ‘feel really uncomfortable and really scared ‘cause nobody was around me’. She explained that her brothers were not around; her younger brother was in the playroom and her older brother would have been in his room.28 • It happened in around the afternoon on the weekend.29 Her mum was out.30 14 T32. 15 Exhibit P1; MFI P1A page 4. 16 Exhibit P1; MFI P1A page 5. 17 T32. 18 T32. 19 T33. 20 Exhibit P1; MFI P1A page 5. 21 T33. 22 T33. 23 T33. 24 Exhibit P1; MFI P1A page 4. 25 Exhibit P1; MFI P1A page 4. 26 Exhibit P1; MFI P1A page 5. 27 T34. 28 Exhibit P1; MFI P1A page 6. 29 T31. 30 T35. -- 6 of 32 -- [2025] SADC 47 5 24 The complainant gave evidence that the other times ‘weren’t really different’.31 She could not really remember the first time. 25 Sometimes she would go to the toilet afterwards: ‘I just felt like that I needed the toilet and I just wanted to like refresh, like refresh up after it’.32 She wanted to refresh up the uncomfortable feeling. 26 The real name for her private part is her vulva.33 She learnt that word during health in school in year 5 when Ms AB was her teacher.34 27 She had a single bed before March and then during March it was a double bed.35 When it happened, she was lying down straight down on her back on her bed, looking at and trying to focus on her phone; he was sitting.36 He touched her with his hand;37 ‘he was like reaching down, and then umm he was like he started rubbing it and, I just felt uncomfortable’.38 He rubbed his hand back and forth on her private part. She was always on her phone.39 He always sat on her bed but at different angles; he would either face the head of the bed or the length of the bed.40 28 The complainant gave evidence about a time when she had a single bed: ‘I’d be on, like I’d still be playing like on my phone or something and then he would sit on like the edge and like he would like the touching and stuff…he would still do like the same things that he would and that um, like sometimes I might’ve been wearing like um pants or shorts…he would still like wash his hands or go like into the kitchen or in his bedroom’.41 29 The complainant gave evidence that sometimes the accused would touch her on top or under her underwear.42 He would be ‘like touching it, once it was a lot like sometimes he would touch it like over my underwear and be like rubbing it but sometimes he would be touching like under’.43 He rubbed onto her vulva. It felt the same when he went under her underwear ‘but different, the same sort of’; she would ‘still feel the type of rubbing it would feel over my underwear but it was just feel like he was touching my skin’.44 31 Exhibit P1; MFI P1A page 7. 32 T34. 33 Exhibit P1; MFI P1A page 4. 34 T35. 35 Exhibit P1; MFI P1A page 8. 36 Exhibit P1; MFI P1A page 7; MFI P1B page 3. 37 Exhibit P1; MFI P1B page 3. 38 Exhibit P1; MFI P1B page 4. 39 T35. 40 T36. 41 Exhibit P1; MFI P1A page 8. 42 Exhibit P1; MFI P1A page 5. 43 Exhibit P1; MFI P1A page 8. 44 Exhibit P1; MFI P1A page 9. -- 7 of 32 -- [2025] SADC 47 6 30 The accused would ‘say some stuff but I don’t really remember’.45 She gave evidence that ‘sometimes he would tell me to be quiet but like other times he knew that I was gonna be quiet so’.46 Before the rubbing, he used words like ‘Shh, be quiet’ and she did not say anything back.47 31 It happened in the afternoon, ‘like two o’clock or something’; the accused would wake up during the afternoon, ‘noon time’.48 It always happened in her bedroom.49 There were no times when her mum or auntie were home.50 32 In terms of frequency, the complainant gave evidence that she did not really know ‘but it happened like several times’.51 It happened, ‘one or twice a month I think’.52 She thought it was once or twice a month because he did not do it that often.53 She could not remember how many times.54 33 The complainant could not remember if he did anything to himself when he was touching her private parts.55 He did not use any other body parts to touch her, nor did she see any of his body parts.56 He did not ever take photographs of her.57 34 At the time, she did not really understand what he was doing or what was happening to her.58 Complaint evidence 35 The complainant gave evidence that the first person she told was her teacher, Ms AB.59 36 On 16 November 2023, Ms AB was teaching the complainant’s year 5 class. The last lesson for the day was a health lesson that focused on safe and unsafe touching and involved a power point presentation.60 37 The complainant gave evidence that the boys in her class were making her feel uncomfortable because they were being really silly about the health stuff.61 She told her teacher ‘that it like, it kind of like reminded me of like when I was 45 Exhibit P1; MFI P1A page 9. 46 Exhibit P1; MFI P1A page 9. 47 T36 – 38. 48 Exhibit P1; MFI P1A page 10. 49 Exhibit P1; MFI P1B page 4. 50 Exhibit P1; MFI P1A page 10; MFI P1B page 5. 51 Exhibit P1; MFI P1A page 8. 52 Exhibit P1; MFI P1B page 4. 53 Exhibit P1; MFI P1B page 4. 54 Exhibit P1; MFI P1A page 7. 55 Exhibit P1; MFI P1A page 9. 56 Exhibit P1; MFI P1B page 4. 57 Exhibit P1; MFI P1A pages 9 - 10. 58 T36. 59 Exhibit P1; MFI P1A page 11. 60 The power point presentation was tendered: exhibit P6. 61 Exhibit P1; MFI P1A page 11. -- 8 of 32 -- [2025] SADC 47 7 like raped kind of’.62 To the complainant, the word ‘rape’ meant ‘like touching them without their consent, it’s like um private stuff…like putting something in their mouth without consent…And stuff’.63 She heard some older kids talking about ‘rape’ at school at some stage, maybe around year 3, and searched it on her phone.64 38 Ms AB gave evidence that the complainant became upset at some point during the lesson, crying at her desk. After the lesson, the children were packing up for home time. Ms AB used that opportunity to check in with the complainant. Ms AB said something along the lines of ‘I noticed you were upset during that lesson, is there anything you would like to talk about or tell me about’.65 The complainant replied, ‘my step-dad raped me’.66 Ms AB gave evidence the complainant was very upset at that time, it was more intense than how she appeared in class during the lesson. The complainant was struggling to catch her breath a little bit. 39 Ms AB and the complainant went to the assistant principal’s office and had a meeting that involved the school principal, Mr CD. Ms AB could not remember exactly what the complainant said, but it was ‘along the same lines as what she told me’.67 Ms AB explained that she felt that her role at that point was more to support the complainant, and that Mr CD was leading the conversation. 40 The complainant could not remember what she said to Mr CD.68 41 Mr CD gave evidence that he told the complainant briefly that Ms AB had disclosed a summary of what she had said and asked whether there was anything that she would like to tell him or any help she would like from him. Mr CD gave evidence that ‘it took a little while because she was quite distressed and concerned, but the key statement was “he touches me where he shouldn’t”’.69 The complainant said it was her step-father. He asked about timelines and the complainant said within the last 12 months. Mr CD gave evidence that ‘she was then able to define that down to approximately April’.70 It was his assumption that she was talking about April 2023 because she said it happened in the last 12 months.71 42 The complaint to Ms AB was admitted pursuant to s 34M of the Evidence Act 1929 as evidence related to the making of an initial complaint of an alleged 62 Exhibit P1; MFI P1A page 12. 63 Exhibit P1; MFI P1A page 12. 64 T39. 65 T142-142. 66 T143. 67 T143. 68 T40. 69 T147. 70 T147. 71 T147. -- 9 of 32 -- [2025] SADC 47 8 sexual offence. Mr CD’s evidence was admitted as information provided by way of elaboration of the initial complaint to Ms AB. Forensic disadvantage 43 Ms AB gave evidence in cross-examination that when they went downstairs into the assistant principal’s office, the complainant said she had told a friend of hers named Miss EF.72 Ms AB passed that information on to Detective Jacobs who explained that she did not obtain a statement from Miss EF because Miss EF was a child at the time, Miss EF’s mother had not wanted to provide a statement and the complainant denied telling a friend first. 44 The complainant gave evidence she did not tell any of her friends.73 In cross-examination, she denied the suggestion that the first person she told was a friend at school (Miss EF).74 She denied telling Ms AB that she had already told Miss EF.75 45 There is no evidence that the complainant made a complaint to Miss EF before she made the complaint to her teacher, Ms AB. The evidence is that Ms AB was the first person the complainant told about these allegations. Ms AB’s evidence that the complainant said she told Miss EF is hearsay and cannot be used for the truth of what was said. If accepted, the evidence of Ms AB may be used as evidence of a prior inconsistent statement made by the complainant.76 46 The defence submitted that this evidence may also be used to show the defence to be at a significant forensic disadvantage because a material witness (Miss EF) was not spoken to by the police.77 The defence submitted the significant forensic disadvantage lies in the potential that the complainant made an inconsistent statement to Miss EF. 47 I do not consider that Miss EF is a material witness. The possibility that Miss EF may be the source of an inconsistent statement made by the complainant is pure speculation. The absence of a statement from Miss EF does not put the defence at a significant forensic disadvantage. Physical violence 48 The complainant gave evidence there were occasions when the accused was physically violent toward her. Those occasions were different to the occasions when he committed the alleged unlawful sexual acts. 49 Near the end of the second prescribed interview, the complainant was asked whether there was nothing else she wanted to talk about. She became very upset 72 T144. 73 Exhibit P1; MFI P1B page 5. 74 T54. 75 T54. 76 T318. 77 T318-319. -- 10 of 32 -- [2025] SADC 47 9 and replied: ‘Umm sometimes I feel like it’s my fault for not saying stop, but like, I just can’t because I feel like I said stop he’d hit me’.78 She was asked to speak about when the accused hit her. She said sometimes she was a ‘tiny bit noisy and playing…with my toys and stuff…he would hit me if I was being too loud’.79 She did not know how often that happened. Sometimes she and her younger brother were playing, being loud, and the accused would ‘like bump our heads together’.80 50 During the trial, the complainant gave evidence that whenever she was naughty, instead of scolding her, the accused would hit her with his hands or a spatula on her hand, face or feet.81 He would say something, but she did not ‘really remember what he said’.82 It started when she was three and living at a different address. There was only one time she can remember when her mother was around and that was at a different address. She started crying when she and her older brother were playing with toys and her older brother told her mum who told the accused who then hit her and her brother with spatulas.83 51 The complainant gave evidence she felt unsafe around the accused.84 52 The complainant’s mother gave evidence she saw the accused hit the complainant but ‘for discipline according to him’.85 He used his hand to hit her arm. She could not remember how often, maybe once or twice. 86 It happened when the complainant and her brother quarrelled, making noises, such as when they did not want to share the games or toys.87 53 The complainant’s older brother gave evidence the accused disciplined the complainant once or twice. It was when they were being noisy, but he was not exactly sure.88 He described it as a ‘blur’ but said the accused would tap him gently on the hand.89 54 The accused gave evidence that he would discipline the children by talking to them but sometimes they argued and yelled about devices or toys, so he tapped them on the hand or arm.90 They were generally very good children.91 He denied any other form of physical discipline or violence.92 78 Exhibit P1; MFI P1A page 6. 79 Exhibit P1; MFI P1A page 6. 80 Exhibit P1; MFI P1A page 6. 81 T27 - 28. 82 T28. 83 T28. 84 T29. 85 T96. 86 T96 – 97. 87 T132 – 133. 88 T155. 89 T156. 90 T239 – 240. 91 T241. 92 T241, 264 – 267. -- 11 of 32 -- [2025] SADC 47 10 Expert evidence 55 Ms Patricia Rayment was called to give expert evidence. She is a clinical psychologist who has been practising for 25 years. The focus of her career has been childhood trauma, including the trauma of sexual abuse. Her assessments and treatment of childhood trauma require an understanding about how children access and make sense of their memories, child development, brain development and behaviour. She keeps up to date with the most relevant research, much of which has arisen out of the Royal Commission into Institutional Responses to Child Sexual Abuse. Her role in these proceedings was not to meet or assess the complainant, but rather to express opinions about the impact of child sexual abuse upon memory and responsive behaviours.93 56 The evidence was admissible pursuant to s 29C of the Evidence Act 1929. No objection was taken to Ms Rayment’s expertise or the admissibility of the evidence. 57 I accept the evidence of Ms Rayment and have used relevant parts of her evidence to ensure that the complainant’s evidence is not assessed according to misconceptions about how children generally respond to sexual abuse, in terms of their memories and behaviours. The assessment of the complainant’s credibility and reliability must not be based upon, apply or ‘perpetuate outdated concepts and myths surrounding the conduct to be “expected” of child complainants in sexual assault cases.’94 There exists ‘extensive research in this area’ and ‘a wealth of experience in the criminal courts demonstrating the fallacy underlying the outdated concepts’.95 58 In BQ v The King,96 the High Court considered expert evidence led by the prosecution from Associate Professor Shackel in a trial for child sexual offences alleged to have been committed against two of the appellant’s nieces. The plurality considered that all the evidence of Associate Professor Shackel concerned the possible responses of victims of child sexual assault and was within her accepted area of expertise. The facts in issue included whether the appellant committed the alleged sexual acts upon the complainants. The evidence of Associate Professor Shackel was relevant to the assessment of the complainants’ credibility:97 The very purpose for which her evidence was led was to avoid the jury’s assessment of the honesty and reliability of AA and BB’s evidence being affected by common misapprehensions, such as there being typical responses of a child to being sexually assaulted and that, commonly, children who are sexually assaulted in an intra-familial context will not acquiesce but instead protest.98 93 T179. 94 AWK v Tasmania [2024] TASCCA 5 at [318]. 95 AWK v Tasmania [2024] 5 at [319]. 96 [2024] HCA 29 97 BQ v The King at [2]. 98 BQ v The King at [49]. -- 12 of 32 -- [2025] SADC 47 11 59 As another example, in BQ, the evidence had the capacity to rebut an attack on the complainants’ credibility because of their delay in disclosing the alleged sexual acts.99 60 I have not reasoned from the evidence that because the prosecution case accords with various circumstances described by Ms Rayment that the unlawful sexual acts alleged by the complainant were more likely to have occurred.100 That is not the purpose of, or a permissible use for, the evidence. Discussion 61 The prosecutor and defence counsel delivered well-structured, thorough and helpful addresses. 62 The structure of this discussion will largely reflect the structure of the defence submissions. Where applicable, I will interpolate the corresponding submission made by the prosecution. I have considered all submissions made by the prosecution and defence but will not refer to the minutiae of every submission. The discussion of an individual submission should not be taken to be a consideration of the submission solely in isolation. I have considered the cumulative effect of the points made by the prosecution and defence. I have considered all the submissions and made an assessment of the totality of the evidence in accordance with the permissible uses of the evidence. 63 The defence submitted that there are four broad issues for consideration: (1) the prosecution case relies solely upon the unsupported evidence of the complainant; (2) barriers to proof beyond reasonable doubt, namely, the unreliability of the complainant’s evidence, the issue of opportunity, the evidence about physical violence and the application of common sense; (3) the limited use of the expert evidence; and (4) the accused’s denial of the allegations. First issue – unsupported allegations 64 The defence submitted that there is no support for the complainant’s evidence – there are no witnesses, no incriminatory text messages/communications nor is there any forensic evidence. In making that submission, the defence was emphasising that the prosecution case relies solely upon the evidence of the complainant. The defence acknowledged that this is not uncommon when allegations of child sexual abuse are made but emphasised that proof of this charge to the standard of beyond reasonable doubt depends upon the word of the complainant alone.101 65 I accept that the complainant is the only witness who gave evidence about the second element of the offence and there is no other evidence to support her evidence. The accused has denied committing the sexual acts that were the subject 99 BQ v The King at [34]. 100 BQ v The King at [56]. 101 T304 – 305. -- 13 of 32 -- [2025] SADC 47 12 of the complainant’s evidence. Proof of the second element requires me to be satisfied beyond reasonable doubt that the complainant is an honest, credible and reliable witness. Second issue: numerous barriers to proof beyond reasonable doubt 66 The defence submitted that there are numerous barriers to finding the allegations proved beyond reasonable doubt. Those barriers are broadly: the complainant’s unreliability; the issue of opportunity; the use of uncharged acts; and the application of common sense. Unreliability 67 The defence submitted the complainant was not a reliable witness. Her evidence about (i) the timing and (ii) frequency of the offending is unreliable and (iii) she has told lies.102 Timing of the offending 68 In terms of the timing of the allegations, the defence compared the complainant’s ‘clear articulation’ that the offending period was January to March 2022 with an incompatible statement she made in the first interview that the offending occurred when her mother and aunt were out of the house. That statement was incompatible because the prosecution led evidence that the complainant’s aunt did not arrive in Australia until 5 May 2022. The defence submitted the complainant is ‘plainly wrong’ about timing.103 69 I do not consider the complainant is ‘plainly wrong’ about the timeframe for the alleged offending. I have considered the incompatible statement in her first interview104 in its immediate and broader context. The relevant passage is as follows: Q So you said before that your younger brother um would be in his playroom and your older brother in his bedroom?105 A Yeah. Q Was there anyone else that lived in the house with you?106 A Um my auntie and my mum but like, like they would be out so.107 Q Okay. Were there any other time where it, your mum or auntie were home? A (shaking head) 102 T305. 103 T306. 104 Exhibit P1; MFI P1A line 461. 105 Lines 454 - 455. 106 Line 459. 107 Line 461. Italics added. -- 14 of 32 -- [2025] SADC 47 13 Q No. Okay. And what about the time of the day? 70 A review of the interview shows that the question at line 454 is reverting to the topic of conversation at line 249 (the last time the touching occurred). Between lines 249 and 454, the topic of the last occasion was completed and several new topics were addressed, including general questions about the complainant’s bedroom when she had a double bed (and the complainant drawing a plan of her bedroom), questions about other times/the first time and questions about a time when she had a single bed (and the complainant drawing a second plan of her bedroom). 71 It needs to be borne in mind that the complainant was eight years old at the time of the interview. At line 454 she was being reminded about something she said earlier in the interview about the last occasion (without being told that they were again speaking about the last occasion). That was then followed by a general question (line 459) that did not expressly relate to any timeframe or occasion. The complainant answered it correctly. Her aunt and mother did also live with her at the Edwardstown house. The incompatible statement is where the complainant added to her answer that ‘they would be out so’. Implicit in her answer is that the aunt was living with the family at the time of the offending. Her response (shaking head) to the next question was consistent with her overall evidence that there were no times the offending occurred when her mum or aunt were home. 72 Although it is implicit in her answer at line 461 that her aunt may have been living with the family at the time of the offending, the complainant never directly said that was the case, nor was she directly asked. During the first interview, the complainant was not asked any questions about the aunty, including when she lived with them or the presence of the aunt in the house at the time of the alleged offending. During the second interview, the complainant was asked only about the presence of her mother at the house when ‘it happened’.108 Her aunt was not a topic of any questions. The complainant had no opportunity to expand upon or clarify the incompatible statement. It was not until the trial that the complainant was asked why she believed the offending ended in March. She gave evidence that it was because her aunt moved in around April and May and she was in the house most of the time;109 the touching stopped when her aunt moved in.110 73 The defence submitted that there is a further inconsistency about the timing of the allegations. Mr CD gave evidence that in November 2023 the complainant told him that the offending happened in the last 12 months, and she narrowed that to April. He assumed she was referring to April 2023 because she said it happened in the last 12 months.111 108 Exhibit P1; MFI P1B page 5. 109 T38. 110 T50. 111 T147. -- 15 of 32 -- [2025] SADC 47 14 74 The complainant was 10 years old at the time she made the complaint at school. It was the first time she had spoken to anyone about the allegations. She was very upset when she told Ms AB. Within a short timeframe, she found herself in a school office being asked questions by the school principal, Mr CD. The complainant was still ‘quite distressed and concerned’.112 Mr CD gave evidence that ‘we did ask about timelines.’113 There is no evidence about the specific questions and answers. In all the circumstances, I am not prepared to assume that a distressed 10 year old child meant April 2023, rather than April 2022, when she was being questioned by the school principal about timeframes for alleged sexual offending, particularly when I do not know how the questions were framed and answered. 75 The prosecution submitted that the complainant is not wrong about the timing of the allegations.114 The complainant gave evidence the offending commenced when she had a single bed and continued when she had a double bed.115 The complainant’s mother gave evidence that a double bed was bought for the complainant about three months before the complainant’s aunt arrived in Adelaide because they were going to share the bed.116 The complainant’s mother agreed in cross-examination that she told the police on 5 June 2024 that the complainant always had a double bed.117 She explained that she was just thinking about the year 2022. She gave a further police statement just before trial that the complainant had a single bed to start with and then changed to a double bed. She agreed the complainant had a single bed for January and February 2022. The complainant’s brother was pretty sure that the complainant had a double bed by the time the aunt moved in.118 The accused agreed in cross-examination that one of the many things they changed in anticipation of the aunt arriving was the size of the complainant’s bed.119 76 I accept Ms Rayment’s evidence that generally children are quite poor at estimating timeframes, but it will depend on the individual child and their understanding of dates, calendars, times and diaries. Generally, children do not often get an understanding of calendar time until the age of 10 to 12 years and that continues to develop through adolescence.120 I bear that evidence in mind when considering the complainant’s evidence about the timeframe for the alleged offending. 77 Having considered the submissions made, and assessed the evidence as a whole, I do not consider the complainant’s evidence about the timeframe for the alleged offending to be unreliable or that it shows her to be an unreliable witness 112 T147. 113 T147. 114 T280. 115 Exhibit P1; MFI P1A, page 6. 116 T89 – 90, 118. 117 T118. 118 T154 – 155. 119 T258. 120 T201. -- 16 of 32 -- [2025] SADC 47 15 generally. Her evidence is that the alleged offending occurred in January to March 2022, when she had a single bed then a double bed and ended once her aunt moved in. Her evidence about the change of a single bed to a double bed in that timeframe is supported by the evidence of other witnesses, including the accused. Frequency of the alleged offending 78 The defence submitted the complainant has been significantly inconsistent about the frequency of the alleged offending.121 She gave evidence that the offending occurred once or twice a month for three months (which equates to three to six times). In cross-examination, it was suggested to the complainant that in February 2024 she told Ms Carter (the author of a Family Court report) that it happened to her five times in a month, and it occurred in early 2022. The complainant gave evidence that ‘The wrong part is that I said, like that I said that it happened five times a month’.122 A longer passage was then put to the complainant as something that she had said to Ms Carter, including that she told Ms Carter ‘in total 15 times’.123 In relation to that passage she gave evidence that the only thing she did not agree with is that she said it happened 15 times in total.124 79 During cross-examination, it was apparent that defence counsel was asking questions based on Ms Carter’s report. The report was not tendered in evidence, but during cross-examination, the prosecutor objected and required defence counsel to put to the complainant ‘exactly what it says in the report’.125 The trial was delayed for the parties to obtain Ms Carter’s notes. The following facts were then agreed:126 6. On 1 February 2024 the complainant had an interview with Salome Carter, a Family Consultant and report writer for the Family Court. 7. This was the first time the complainant met Ms Carter. 8. The interview went for approximately 15 – 20 minutes. 9. Only the complainant and Ms Carter were present for the interview. 10. Ms Carter took notes of the interview with the complainant. 11. Ms Carter’s interview notes record the following: When I used to live with my dad, I would play in my room. He would come in and would sit on my bed. He would play with private parts. I was like 9. Whenever mum would go out. 121 T306 – 307. 122 T195. 123 T196. 124 T196. 125 T196. 126 Exhibit D9. -- 17 of 32 -- [2025] SADC 47 16 12. Ms Carter asked the complainant about the defendant sitting on her bed. In response the interview notes record the following: 5 times in a month. It started in February to March 2022. 1 to 5 times a month. In total seven to 15 times. Happened January to May 2022 and then stopped when Aunty came, she was often in the house. He was just quiet. Sometimes he would tell me to be quiet. I was too scared to say anything. 80 Ms Carter’s report (from which the complainant was cross-examined) did not tally with the notes as set out in the agreed facts. It was put to the complainant (from the report) that she said this happened five times in a month. The notes record that the complainant also said ‘1 to 5 times a month’. It was put to the complainant (from the report) that she said ‘in total 15 times’. The notes record ‘In total seven to 15 times’. 81 I do not have any explanation for the apparent discrepancies between Ms Carter’s report and notes. 82 I interpret agreed fact number 10 to mean that Ms Carter took her notes during the interview. There is no other evidence from which I can determine the accuracy of the notes. For example, I do not know whether Ms Carter paused in between questions to record what the complainant said or whether she wrote as the complainant was talking. 83 Even if the notes are an accurate record of what the complainant said, I do not know the context in which the information was obtained or recorded. The notes record the complainant to have said ‘5 times in a month’. I do not know how ‘1 to 5 times a month’ came to be subsequently recorded by Ms Carter in her notes, for example, whether (or what) further questions were asked about that, whether the complainant corrected herself or whether the complainant further explained herself in a different context. I do not know in what context ‘In total seven to 15 times’ was recorded, for example, whether Ms Carter simply asked ‘how many times in total’ or whether multiple questions were asked and the frequency totalled up by Ms Carter based on the answers. 84 The forensic interviewing of children who are alleged victims of sexual abuse requires considerable skill and training.127 I do not know whether Ms Carter has received training in investigative interviewing.128 I do not know how much of the interview time was spent to build rapport and trust with the complainant before she was asked question about these allegations. I do not know what other topics, if any, were discussed beforehand. I do not know how this topic was introduced or whether Ms Carter used open ended questions. 85 The limited information that I do have about the setting for this interview does not accord with the type of setting that enables child complainants to provide 127 T184 – 186. 128 T184. -- 18 of 32 -- [2025] SADC 47 17 more accurate and detailed accounts.129 In that respect, I accept the complainant’s evidence that she believed Ms Carter wanted to know why the complainant did not want her little brother to stay with the accused. She gave evidence that before the meeting with Ms Carter, no-one told her about the types of things that she would have to speak about. It was not until they were in the car on the way to the meeting, that the complainant was told by her mother’s case manager that she might be asked questions about these allegations.130 She then found herself in a room alone with a person she had never met before. The interview lasted only 15 – 20 minutes. 86 The defence submitted that the lack of forewarning and the fact the complainant had not previously met Ms Carter might be something that could disturb the complainant but, ‘on the other hand, it might be exactly the type of time that she would deliver an unguarded version about what happened’.131 I do not agree with the suggestion that catching a child off-guard might lead to the truth. That is a misconception rebutted by the evidence of Ms Rayment. Research shows that a child is more likely to provide more accurate and detailed accounts in a setting where they feel well supported and have an empathetic interviewer who pays attention to them and is supportive of them.132 87 Despite my concerns about the interview setting, I do not consider the complainant’s statements (as recorded by Ms Carter in her notes) to be significantly inconsistent with the complainant’s evidence. The frequency of one to five times per month (as recorded by Ms Carter) incorporates the complainant’s evidence that it happened once or twice per month. The total of seven times (the lowest end of the range recorded in the notes) is not significantly different to the total of six times calculated from her evidence (on once or twice per month for three months). 88 The complainant could not say precisely how many times the alleged offending occurred. That feature of her evidence does not cause me to doubt her credibility or reliability. It is a general misconception that a child who has been repeatedly subjected to sexual abuse will recall how often or how frequently the abuse occurred. Ms Rayment explained that a schema or gist of what is happening forms when similar events happen repeatedly.133 People tend to remember the first event, most recent event or any salient event and generally underestimate the frequency of the occasions in between.134 Of course, that feature of her evidence does not mean that her evidence is true or more likely to be true. At no stage have I used Ms Rayment’s evidence for that purpose. 129 T185. 130 T198. 131 T307. 132 T185. 133 T188. 134 T200. -- 19 of 32 -- [2025] SADC 47 18 Lies 89 The defence submitted that the third point about the complainant’s credibility and reliability is that she has told three lies.135 First, the complainant told her mother that the reason she was upset was because she was bullied by [T] at school. Second, the morning after her complaint at school, she told Mr CD that she had already told her mother about the alleged offending. Third, and the most compelling, is her evidence that Mr CD told her to lie to her mother and say something about her grades in Japanese.136 The defence submitted it is a big issue when the evidence relied upon to prove these allegations is the sworn testimony of a person who has demonstrated the capacity to tell an unnecessary, detailed and specific lie. 90 None of the three lies, when considered in isolation or in combination, cause me to doubt the credibility or reliability of the complainant’s evidence about the allegations. The three lies need to be viewed in their context. 91 They all relate to the brief period from when the complainant made her complaint at school to the meeting at school the next morning. The complainant, a 10 year old child, made a complaint at school that the accused (her mother’s former partner) had sexually assaulted her in the past. That afternoon, no-one from the school told the complainant’s mother about the disclosure. Mr CD gave evidence that he asked the complainant whether she ‘would like my assistance to talk to her mum. She said she was felt able at the time’.137 During his evidence, he explained that he would ‘reference that with that she was quite nervous about having that conversation with her mum’.138 His impression was that it was her intention to tell her mother but he is ‘pretty aware of young people, intention and action don’t often match so that’s why I went to see her mother first thing in the morning.’.139 92 During cross-examination, the complainant admitted she told the ‘first lie’ to her mother. When they were on the way home and her mother asked why she was upset, she told her mother she had been bullied by [T] at school and that some people in class made her feel uncomfortable.140 She gave evidence that sometimes [T] made fun of her and called her names but she could not remember if he did that on that day.141 She was asked whether she wanted to tell her mum the truth: ‘Well, not really because I felt like I was afraid to tell her the truth…’.142 She felt ‘a little scared for some reason’.143 135 T307. 136 T307 – 308 referring to T61 – 62 and T149. 137 T147. 138 T148. 139 T148 – 149. 140 T60. 141 T60. 142 T61. 143 T62. -- 20 of 32 -- [2025] SADC 47 19 93 It is understandable that the complainant was not able to tell her mother the truth that evening and decided to make something up to avoid doing so when asked why she was upset. She had not been able to tell her mother for 18 months. The school knew about the allegations but had not told her mother. It is reasonable that she remained afraid and scared to tell her mother. I appreciate the concern expressed by the defence about the complainant’s preparedness to make something up about someone, however, the lie was not that [T] bullied her; the lie was that [T] bullied her that day and that was why she was upset. In all the circumstances, her lie to her mother to explain her upset state does not detract from her credibility or reliability about these allegations. 94 Consistent with Mr CD’s evidence, the complainant gave evidence that Mr CD encouraged her to tell her mum.144 She went on to give evidence that she was ‘pretty sure he said that they would have a meeting like after that day to…tell my mum if I wasn’t able to tell her myself’.145 She gave evidence that Mr CD said that if she wanted to tell her mum the next day during the meeting ‘to like lie to her about why I was spending so long to get out of school’.146 The defence refer to this as the ‘third lie’. 95 It was put to Mr CD in cross-examination that he would not have told the complainant to lie to her mother and he responded ‘Not at all’.147 It was further put to him that, for example, he would not have said to the complainant that if her mother noticed she was emotional, tell her something like you got a bad grade in Japanese and that’s why you felt upset. Mr CD answered: I can’t recall that, I’m sorry. I don’t believe I would have got her to make the issue but I know that she was so upset when coming out of the room the public schoolyard is not a place for that to unfold. So we may have said to [the complainant] ‘You need to talk to mum in private at home’ and she wanted to wait until her aunty was available to help with that conversation and her aunty was at English class that day’.148 96 In re-examination, Mr CD gave evidence that he did not instruct the complainant ‘on a process or anything like that’ regarding how to tell her mother. He described the complainant as one of the stronger students, highly academic, bright and he had ‘confidence that she would be able to do that or tell us otherwise the next day’.149 97 Even though Mr CD’s response to the example in cross-examination was not as definitive as I had anticipated, I accept that he did not expressly tell the complainant to lie to her mother. Nevertheless, I consider the complainant left school that afternoon with a genuine belief that she had Mr CD’s imprimatur to not tell her mother the truth that evening if she was unable to do so. I agree with 144 T61. 145 T62. 146 T61 - 62. 147 T149. 148 T149. 149 T151. -- 21 of 32 -- [2025] SADC 47 20 the prosecution submission on this topic.150 I do not consider the third lie relied upon by the defence was a deliberate lie to the court. I find that she is honestly and genuinely mistaken about what Mr CD said to her. 98 It is understandable that the complainant may have held that belief at the time and continues to do so. Mr CD must have expected that the complainant’s mother would ask the complainant why she was upset. He encouraged the complainant to tell her mother, but he did not direct her to do so. In his own mind, Mr CD knew the complainant was nervous about telling her mother and understood that she might not be able to do so. He may have directly or indirectly conveyed that to the complainant, leaving her with the understanding that he was not compelling her to tell her mother and giving her the impression it was okay if she told her mother something else to explain why she was so upset. 99 Mr CD gave evidence that the meeting with the complainant’s mother was not arranged until the following morning when he felt that the complainant had probably not told her mother.151 The complainant, however, remembers being reassured by him soon before she went home that they would have a meeting to tell her mother if she was unable to do so. I prefer the complainant’s evidence on this topic. Given Mr CD’s evidence that he knew it was possible she might not tell her mother that evening, I expect he would have conveyed the alternative possibility of a meeting with her mother as recalled by the complainant. 100 The ‘second lie’ was a lie told by the complainant to Mr CD the next morning. He asked the complainant whether she had told her mum everything and she said she had.152 The complainant agreed she lied to Mr CD about that: she told him she had told her mother ‘even though I didn’t because, like, I was just scared to tell her’.153 She explained: ‘I think I was just like scared to tell her and I wasn’t like ready yet to tell her but when we went into the meeting room I told her what happened’.154 I accept the complainant’s explanation for why she lied to Mr CD at that time on that topic. In all the circumstances, I do not consider that lie to Mr CD has any significance. She was still trying to avoid telling her mother what had happened. She gave evidence that once they were in the meeting she had the ‘courage to tell my mum’.155 Opportunity 101 The defence submitted there was no realistic opportunity for the accused to commit the described offending. Opportunity required three circumstances to align: the accused was home, the complainant’s mother was absent from the home 150 T301 – 302. 151 T147 – 148. 152 T150. 153 T59 – 60. 154 T60. 155 T61. -- 22 of 32 -- [2025] SADC 47 21 and the complainant’s younger brother was not in the complainant’s bedroom during the time they were allowed to play on their electronic devices.156 102 The complainant gave evidence that the offending invariably happened in her bedroom on the weekend when her mother was out, the accused was home, and her two brothers were elsewhere in the house. She was always on her phone playing a game. 103 The complainant’s mother, the complainant’s older brother and the accused gave evidence about January to March 2022. 104 The complainant’s mother gave evidence that in early 2022, the accused was home with the children twice when she went to visit her friend.157 There were other times when she went shopping with her sister that the accused was at home with the children.158 The sister did not arrive in Australia until May 2022. The complainant’s brother gave evidence that his mother was absent from the house once per month, leaving the accused home with the children.159 105 The accused was asked whether there was a time when the complainant’s mother left him alone with the children. He replied ‘Never happened’. He was sure about that ‘Because I was really busy, so she can’t leave them alone. Like, I leave the house a lot on the weekend or I do that job outside, but usually she never do that’.160 The accused gave extensive evidence about what was keeping him busy on weekends during that period, including doing extra delivery work for his employer on Saturdays (three to five times)161 and helping out his brother who was getting married overseas in early February 2022 (that required the accused to do a lot more mechanical work on the weekends162 and help organise things for the wedding such as fixing the house, legal paperwork163 and buying things for the wedding164). He went to his parents’ house every weekend to work on the house because his brother intended to move into the house.165 The accused went to Iraq for one week for the wedding, but the rest of his family stayed longer.166 106 The complainant’s older brother167 gave evidence that the complainant would usually be on her bed in her bedroom when they had time on their devices.168 The younger brother would usually be in the complainant’s bedroom then too, but if 156 157 T99. 158 T99 – 100; 137. 159 T157. 160 T237, T257. 161 T224 – 226. 162 T226 – 227, 230. 163 T230 – 231. 164 T232. 165 T231 – 232. 166 T233 – 234. 167 Aged 17 at the time of trial: T153. 168 T158 – 159, 172. -- 23 of 32 -- [2025] SADC 47 22 not, he would be in one of the living rooms.169 The complainant’s older brother would be slowly making his way to his own room.170 He saw the accused go into the complainant’s bedroom more than once or twice to tell her to get off her device.171 The accused closed the door and stayed in the complainant’s room for five to 10 minutes. The complainant’s older brother was in his room with the door open and could hear the complainant’s door opening.172 That happened two to four times.173 107 I do not consider that the complainant’s mother, the complainant’s brother or the accused have perfectly accurate memories about the frequency of relevant events (e.g. how often the accused was home on the weekend when the complainant’s mother was absent, how often the complainant’s younger brother was in the complainant’s bedroom or how often the accused was in the complainant’s bedroom) in the relevant timeframe. As a matter of common sense, people do not accurately recall that level of minutiae about a confined three month period approximately three years ago. 108 I gained the impression that the complainant’s mother and brother were stretching their memories and doing their best to guess numbers based on a general memory about the period. I find the evidence of the complainant’s brother about hearing the complainant’s bedroom door open and estimating the accused had been in the bedroom for five to 10 minutes to be unlikely. His bedroom was at the back of the house away from the complainant’s bedroom. I do not consider he was deliberately lying about those occasions but rather that he was genuinely trying to think back to that time with a hindsight influenced by some knowledge of these allegations. 109 I consider the accused’s evidence about his memory for the relevant period was unrealistic and that he was deliberately over-reaching because of these allegations. His over-reaching included stating that it was never the case that he was home alone with the children during the relevant period. In making that assessment, I have kept firmly in mind that the accused had an interpreter available during his evidence. The accused was able to indicate when he needed the assistance of the interpreter. He was able to understand a reasonable level of English. There were occasions when he corrected the interpreter’s English interpretation of his answer and became a bit frustrated by the process. 110 During the first part of cross-examination, it was plain that the prosecutor was asking the accused about weekends in the three month period in early 2022.174 Multiple questions were framed with express reference to that timeframe. The accused initially answered her questions by emphasising the importance to him of 169 T159, 165. 170 T159. 171 T160, 166. 172 T161, 167. 173 T161. 174 T242 – 250. -- 24 of 32 -- [2025] SADC 47 23 spending time with his family (the complainant’s mother, the complainant and the complainant’s brothers) on weekends. It was eventually put to him that his answers indicate that he did spend a lot of time at home on the weekends during that period. He answered ‘No, no, no, I thought you talk about, like, the whole year, like not just in this three months, about spending and doing the gardening and everything like that. Can you just ask me again?’.175 He then said ‘Just about the cleaning and spending time, I’m not thinking you talk about only this three months, I thought you talking, like, generally because the first time you said 2021, 2022’.176 He then gave evidence that he did not really spend a lot of time with the family in January to March 2022.177 He reverted to his evidence about how busy he was because of his brother’s wedding. 111 In summary, I do not accept the reliability of the evidence of the complainant’s mother and brother about the exact number of times the accused was home alone in the relevant period, nor do I accept the credibility of the accused’s evidence that such a circumstance never occurred. However, I do accept the general effect of the evidence of the complainant’s mother and brother that there were not many times when that occurred and the general evidence of the accused that he was busy because of his brother’s wedding during the early part of 2022. In that respect, the evidence of all three of them supported the complainant’s evidence that there were not many times the accused committed the unlawful sexual acts, he ‘did not do it that often’.178 Physical violence 112 The defence submitted that the third main barrier to finding the allegations proved beyond reasonable doubt relates to the complainant’s evidence about the accused’s physical violence toward her. Even on her evidence, it was not a regular occurrence, and it was in direct response to naughty behaviour.179 The complainant could have interpreted it in a different way but if the discipline was the reason she submitted to the alleged offending, it was unusual for her to not mention it in her first interview. She was not asked about it in her first interview, but she was not asked in her second interview either. Defence counsel submitted that it is another ‘curiosity’ about the evidence to go on the list.180 113 A summary of the ‘physical violence’ evidence is set out above at [48]-[54]. 114 The evidence from the prosecution witnesses about the accused’s physical violence toward the complainant and her brother was evidence tending to suggest the accused had engaged in discreditable conduct other than conduct constituting the offence. The evidence was admitted pursuant to s 34P(2)(a) of the Evidence Act 1929. I am satisfied the probative value of the permissible use of the evidence 175 T250. 176 T250. 177 T251 – 252. 178 Exhibit P1; MFI P1B page 4. 179 T313. 180 T313 – 314. -- 25 of 32 -- [2025] SADC 47 24 outweighs any prejudicial effect it may have on the defendant. In making that determination, I have had regard to s 34P(3). 115 Pursuant to s 34R(1), I am required to identify and explain the purpose for which the evidence may, and may not, be used. 116 The prosecution submitted the complainant’s evidence that the accused hit her on different parts of the body should be accepted. The level of discipline may not be significant but rather the importance of the evidence lies in its impact upon the complainant. It made her feel hurt, sad and unsafe. The evidence may be used to explain why she submitted to the offending, did not call out for help and did not complain.181 The prosecution submitted that it was not a relationship marked by care and protection. The evidence may be used to rebut the inherent improbability of a stepfather acting in such a way towards a child in his care.182 117 I accept the complainant’s evidence that the accused was physical in his disciplining of her, including hitting her on different parts of the body with his hand or spatula and bumping her head with her little brother’s head. The complainant’s mother supported the fact of some physical discipline by the accused toward the complainant, but not the full description or extent of it. The complainant’s evidence was that it did not often occur in the presence of her mother. The complainant’s older brother described his memory on this topic as a ‘blur’.183 The accused gave evidence that he occasionally tapped the complainant’s hand or shoulder. In my view, he went further than that but there is no suggestion that he bruised the complainant or caused her any physical injury. 118 I agree with the prosecution that the significance of this evidence lies in the emotional impact the physical discipline had upon the complainant. I accept that she was very young when it started, that it scared her and made her feel unsafe. 119 Pursuant to s 34R(1), I have used the evidence of the physical violence toward the complainant for some of the purposes identified by the prosecution. The purposes for which I have used the evidence were identified by the complainant in her evidence. I have used her evidence about the discipline as her explanation for why she submitted to the offending and felt unable to tell the accused at the time of the alleged offending to stop.184 I have also used it as her explanation for why she felt unable to complain. She gave evidence that if she told her friends what was happening she felt ‘they would think that I was lying’ and she ‘didn’t want to tell my mum because she would like confront my ex-stepdad about it and I thought like I’d feel like he would hit me…Because like he would be the person to like hit people, to like discipline them and if like – and he would like hit me when I didn’t do what he said’.185 181 T286. 182 T287, 291 - 292. 183 T156. 184 Exhibit P1; MFI P1A page 6. 185 T38. -- 26 of 32 -- [2025] SADC 47 25 120 I have not used the evidence for the purpose of proving that the accused’s relationship with the complainant was not a relationship marked by care and protection and to rebut the inherent improbability of a stepfather committing unlawful sexual acts towards a child in his care. I do not condone the accused’s resort to physical discipline as described by the complainant, but I do not consider the evidence of the nature and extent of the physical discipline rises to a level required to prove such a relationship or rebut that inherent improbability. 121 I have not used the evidence of physical violence toward the complainant or her brother as tending to suggest that the accused is more likely to have committed this offence because he has engaged in discreditable conduct. Nor have I used the evidence as tending to suggest that the accused may or might be the type of person who is likely to have committed this offence. I have not used the evidence of discreditable conduct for any impermissible purpose or engaged in any impermissible line of reasoning. The evidence about physical violence toward the complainant’s brother was only used to assess the credibility or reliability of the complainant’s account of the accused’s use of physical violence toward her. 122 To address s 34R(2), I do not consider the evidence to be essential to the process of reasoning leading to a finding of guilt and I have not reasoned in that way. 123 The admission of the evidence of discreditable conduct and the use of it for the identified limited permissible purposes should not be interpreted as an endorsement of misconceptions about expected responses to sexual assault. Ms Rayment’s evidence rebuts any misconceived general expectation that a child will respond to sexual abuse by resisting, crying out or making an early complaint. Research shows that submission or silence on the part of a child at the time of the event is a common response for various reasons such as dissociation (including a freeze response) and the power imbalance between children and adults (including the socialisation of children to obey adults). Research also shows it is ‘incredibly common’ for children to not disclose what is happening or has happened (including for emotional reasons such as fear of getting into trouble, of not being believed, of getting the perpetrator into trouble or of upsetting parents; embarrassment, shame, guilt and feelings of complicity; not understanding what has happened; or lack of opportunity to tell).186 124 The evidence was admitted and used for the limited purpose of enabling the complainant to explain those responses for herself. 125 I do not accept the defence submission that there is a curiosity in the complainant failing to mention the accused’s use of discipline in the first interview given the prominence she gives to it in the context of these allegations. 186 T208 – 211. -- 27 of 32 -- [2025] SADC 47 26 126 It is a misconception to expect that a child complainant of sexual abuse will provide complete information in the first interview and to regard them as unreliable if they miss something out.187 The level of detail provided may be impacted by the nature of memory itself, the impact of trauma upon memory, the use of open-ended questions188 and the interview setting.189 Some researchers have described the process of disclosure as an ongoing and iterative process. Ms Rayment explained that: … children will sometimes feel out, I guess, the person’s response to their initial disclosure, so they may not tell all of the details in their initial disclosure or they might choose who they tell those details to. So they may withhold details if they are, you know, feeling more embarrassed or more concerns about the person’s reaction whereas they might tell other details to other people. So it’s very much an ongoing process and unfortunately, I guess, our court system doesn’t always assist with that because we are an adult-centred process where we expect children to be able to give all of the detail within one interview and that’s not the way disclosures tend to happen. 190 127 The complainant’s first reference to the accused’s use of physical discipline was at the end of the second interview. It was not prompted by a direct question. She mentioned the physical discipline in response to an open-ended question: Q Ok, alright. Umm, and did he say anything to you? No, ok. Umm so there’s nothing else you want to talk to me about? A Umm sometimes I feel like it’s my fault for not saying stop, but like (crying) I just can’t because (inaudible) Q I know. A Because I feel like I said stop he’d hit me.191 128 The physical discipline was mentioned for the first time by the complainant when she chose to tell the interviewer that she felt responsible for what happened to her. It was a very personal disclosure that came with a burst of emotion. It can be readily understood that the complainant did not make that type of disclosure to the interviewer in the first interview but that she felt more comfortable and supported to do so with the same interviewer at the end of the second interview. Common sense 129 The defence submitted that the fourth main barrier to finding the allegations proved beyond reasonable doubt arises from the application of common sense. 130 The defence submitted that there was no grooming, escalation, threats, rewards or secrecy. There was a lack of repetition. There was no apparent reason for the alleged offending to stop in March. The aunt did not arrive until the 187 T183 – 186. 188 T184. 189 T185. 190 T185 – 186. 191 Exhibit MFI P1B, lines 238-246. -- 28 of 32 -- [2025] SADC 47 27 beginning of May. On at least one occasion it occurred with the bedroom door open which was risky because of the presence of the two brothers in the house.192 131 None of those matters considered in isolation or in combination cause me to doubt the complainant’s allegations. Sometimes allegations of sexual abuse include evidence of grooming, escalation, threats, rewards or secrecy, but not invariably so. 132 On one assessment of the complainant’s evidence, the touching alleged could itself be seen as a form of grooming. Grooming can take many different forms, including indecent assaults. The accused touched the complainant over her underpants and underneath them. Grooming may also take the form of gaining a child’s trust by engaging in family activities and buying toys. It may also take the form of physical discipline that establishes the alleged offender’s authority and control, reinforces the power imbalance and leads to the child’s submission.193 133 There is no rule that sexual abuse should be repetitive or escalate. Sometimes it may not be repetitive or escalate simply because of a lack of opportunity. Here, the alleged offending may have stopped in advance of the aunt’s arrival because of a lack of opportunity. 134 In terms of secrecy, the complainant gave evidence the accused told her to be quiet when he was in her bedroom. Threats or rewards may not be required if an offender knows they have control over the child. 135 I have not made findings that the accused groomed the complainant by engaging in family activities and buying toys. Nor am I speculating about what may have been in his mind in terms of future conduct, or the need for threats or rewards. The point to be made is that the defence submissions under this heading are too simplistic and not persuasive. I do not consider that the application of common sense to the evidence leads to any barrier to proof of the offence beyond reasonable doubt. Third issue: use of expert evidence 136 The defence submitted that the expert evidence was of limited assistance.194 Many of the concepts the subject of her evidence are well-known. Ms Rayment’s opinions were about the general behaviours of sexually abused children and not specific to these facts. 137 I have already addressed the purpose of the expert evidence. See [55] – [60]. 192 T314. 193 T286. 194 T316. -- 29 of 32 -- [2025] SADC 47 28 138 The defence submitted that it cannot be inferred from the presence of some of the behaviours that it is more likely that the complainant was sexually abused.195 I have not used Ms Rayment’s evidence in that way. Fourth issue: the accused’s evidence 139 The defence submitted that the accused has given evidence and denied the allegations on oath.196 On rare occasions he physically disciplined the complainant, but it was not as she described.197 He was very busy during the relevant period from January to March 2022 and was never at home alone with the children on the weekends.198 140 The defence described the case as a ‘he said/she said’ matter.199 To be clear, I have not approached the assessment of the evidence on the basis that the case is one of ‘oath against oath’. In electing to give evidence, the accused took on no onus of proof. The onus of proof remains solely on the prosecution. To be convicted of this offence, the prosecution must prove the charge and do so to the standard of beyond reasonable doubt. I must be satisfied beyond reasonable doubt that the complainant’s evidence is truthful, credible and reliable. The question for decision is whether, on the whole of the evidence, and notwithstanding the defence evidence and argument, the prosecution case has been proved beyond reasonable doubt.200 Summary 141 I consider the complainant was an honest, credible and reliable witness. There were compelling aspects to her evidence. 142 One of them was the genuine way she expressed herself. The complainant did not present with any hint of exaggeration but rather as someone telling the plain and simple truth. For example, she said in her interview that the touching occurred once or twice a month because he did not do it that often.201 I found the accused’s extensive evidence about how busy he was during that period to be unwittingly confirmatory of the simplicity of the complainant’s evidence that he did not do it that often. 143 In stark contrast to the complainant, the accused took his evidence one step too far by dogmatically stating that there was never an occasion during the three month period back in 2022 when he was left alone at home with the children.202 I found his claimed certainty of memory about the non-occurrence of that type of 195 T317. 196 T320. 197 T313. 198 T237. 199 T304. 200 R v Schulz (2016) 126 SASR 476 at [35]; R v Ahmadi, R v Hosseini, R v A,N; R v M,A (2018) 131 SASR 64. 201 Exhibit P1; MFI P1B page 4. 202 T237, 257. -- 30 of 32 -- [2025] SADC 47 29 scenario during a specific three month period back in 2022 to be jarring and unrealistic. I agree with the prosecution’s characterisation of the accused’s evidence on this topic.203 144 Other compelling aspects of the complainant’s evidence included the rawness of her unprompted disclosure during the second interview that she blamed herself for not saying stop;204 her description of trying to cry afterwards but being unable to do so, taking deep breaths and trying to continue playing the game on her phone;205 and the innocence of the uncomfortable feeling after the accused rubbed her vulva that she needed to refresh by going to the toilet.206 145 The complaint on 16 November 2023 explains how the allegations came to light. It is also admitted as evidence of the degree of consistency of conduct of the complainant. The evidence is not admitted as evidence of the truth of what was alleged. There may be varied reasons why a complainant makes a complaint at a particular time or to a particular person. Subject to those matters, I need to determine the significance (if any) of that evidence in the circumstances of this case. 146 The 10 year old complainant made her complaint in response to a query from her teacher about her wellbeing following a lesson on unsafe touching. The terms of her complaint were consistent with her allegations and her understanding of ‘rape’. 147 The expression ‘consistency of conduct’ includes consistency in making the complaint when it would be expected to be made.207 The evidence of Ms Rayment exposes the misconception underlying the common law expectation that victims of sexual assault would make a complaint at the first reasonable opportunity after the alleged offence. Research shows that many victims of sexual assault do not disclose or ‘delay’ in making a disclosure. Ms Rayment gave evidence that ‘it depends on when you measure but it’s usually somewhere between about a quarter to a third of people don’t disclose’208 and ‘it’s really common for children to delay disclosure, there’s lots of research around that and it’s a very consistent finding across that delaying disclosure is typical for child sexual abuse.’209 There are numerous reasons why a child will not disclose.210 148 It is important that an assessment of a complainant’s ‘consistency of conduct’ in making a complaint when it would be expected to be made is not affected by 203 T284 – 285. 204 Exhibit P1; MFI P1A page 6. 205 Exhibit P1; MFI P1A page 4. 206 T34. 207 R v J, A (2009) 105 SASR 563, R v Szejnoga (1998) 199 LSJS 97 at 102. 208 T208 – 209. 209 T209. 210 T209. -- 31 of 32 -- [2025] SADC 47 30 common misconceptions that expect prompt disclosures. Ms Rayment gave evidence that: Yes, children become, I think, more increasingly likely to tell as they get older. Young children quite often need a prompting environment, so they might be someone who asks them who notices something different about their behaviour or fear of the alleged perpetrator and might ask the child what's wrong. So young children's disclosures are quite often prompted within a context. They have to be asked or there needs to be that shared space teaching, such as teaching protective behaviours or watching a telephone about child sexual abuse. Older children, so as they get towards adolescence they're increasingly more likely to tell a peer rather than their parents and so having a close trusted friend is something that might prompt disclosure as well.211 149 To the extent that there may be any ‘expectation’ about when a child might complain about sexual abuse, I consider that the complainant’s complaint to Ms AB demonstrates consistency of conduct. She was in a prompting environment at school during a class about protective behaviours. 150 The complainant’s distress at the time of her complaint does not independently prove or support her allegations. 151 I have considered the inconsistent statement made by the complainant to Ms AB (about having already told Miss EF, see [45]) and the ‘lies’ told by the complainant (see [89] – [100]) in the immediate aftermath of making her complaint. I do not consider the inconsistency or lies to be significant. They do not detract from the complainant’s credibility or reliability. It is understandable that a 10 year old child who had just made a complaint to her teacher and was ‘very upset’ and scared about telling her mother reacted in those ways. My expression of understanding is to explain why I do not attach significance to the inconsistency or lies and I make it clear that I have not used the otherwise hearsay evidence to bolster the complainant’s credibility in any way. 152 In summary, I found the complainant to be an honest, credible and reliable witness. I am satisfied beyond reasonable doubt that the accused engaged in two or more unlawful sexual acts with the complainant during the period January to March 2022. I am satisfied he committed the unlawful sexual acts with the complainant once or twice a month over those three months. On the whole of the evidence, and notwithstanding the defence evidence and argument, the prosecution case has proved the offence beyond reasonable doubt.212 Verdict 153 I find the accused guilty of the charged offence. 211 T211. 212 R v Schulz (2016) 126 SASR 476 at [35]; R v Ahmadi, R v Hosseini, R v A,N; R v M,A (2018) 131 SASR 64. -- 32 of 32 --