[2025] SADC 62

Prosecution: R Counsel: MS B SPROD - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: CAB Counsel: MR J RICHARDS - Solicitor: OLD PORT CHAMBERS Hearing Date/s: 28/10/2025, 29/10/2025 File No/s: DCCRM-24-017021 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 CAB Criminal Trial by Judge Alone [2025] SADC 62 Reasons for the Verdict of Her Honour Judge Barnett 29 May 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES The accused, CAB, is charged on Information with two counts of aggravated indecent assault against ChB, a person under the age of 14. CAB is the father of ChB. CAB is alleged to have touched ChB on the breast and inner thigh. The acts were alleged to have occurred when they were together on a couch in the hotel room where ChB was staying with CAB whilst visiting from interstate to attend her step-sister’s birthday. CAB denied the offending and claimed to have fallen asleep at the relevant time. Verdict: Count One: Guilty. Count Two: Guilty. Evidence Act 1929 (SA) s 13BA, referred to. De Silva v The Queen (2019) 268 CLR 57; R v Alwazan [2016] SASCFC 155; Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen (2011) 245 CLR 257; Liberato v The Queen (1985) 159 CLR 507, 515; Fox v Percy (2003) 214 CLR 118, considered. -- 1 of 20 -- -- 2 of 20 -- R v CAB [2025] SADC 62 Introduction 1 The accused, CAB, is charged with two counts of aggravated indecent assault. The prosecution case is that on 7 October 2023, the accused indecently assaulted his daughter, ChB, by first placing his hand on her breast and then touching her inner thigh area under her clothing but on top of her underwear. 2 Central to the prosecution case is whether ChB is an honest and reliable witness such that the elements of each charge are proved beyond reasonable doubt. 3 The accused elected for trial by judge alone.1 The trial proceeded without a jury. He pleaded not guilty to both charges. The charges 4 The accused is charged on information with the following offences: Count 1 Statement of Offence 5 Aggravated Indecent Assault.2 Particulars of Offence 6 [CAB] on 7 October 2023 at Glenelg, indecently assaulted [ChB] by touching her breast.3 7 It is further alleged that [ChB] was under the age of 14 years at the time of the offence. Count 2 Statement of Offence 8 Aggravated Indecent Assault.4 Particulars of Offence 9 [CAB] on 7 October 2023 at Glenelg, indecently assaulted [ChB] by touching her inner thigh area. 1 Juries Act 1927 (SA) s 7(1). 2 Criminal Law Consolidation Act 1935 (SA) s 56. 3 The particulars of Count 1 were amended to allege a touching of the breast as opposed to breasts. The amendment was not opposed: T123-4. 4 Criminal Law Consolidation Act 1935 (SA) s 56. -- 3 of 20 -- [2025] SADC 62 2 10 It is further alleged that [ChB] was under the age of 14 years at the time of the offence. Elements of the offence 11 All elements of the offence must be established beyond reasonable doubt. 12 The offence of indecent assault has two elements, in addition to a circumstance of aggravation for the offence in its aggravated form: 1. The accused assaulted ChB. An assault is the intentional and unlawful application of force to another. The application of force need not be significant; any touching or handling is enough. The application of force need not cause injury. It must be intentional, so purely accidental or unintended touching would not be sufficient; and 2. The assault must be accompanied by, or occur, in circumstances of indecency. There must be a sexual connotation. Whether the assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. 13 If it is proved that the complainant was under the age of 14 years at the time of the indecent assault, the circumstance of aggravation will be proved. 14 The central issue in dispute was element one, namely, whether the prosecution had established beyond reasonable doubt the physical assault, the subject of the charges, occurred. It was not in dispute the complainant was aged 12 at the time of the offence. General directions 15 The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not need to prove anything. 16 The standard of proof is proof beyond reasonable doubt. The accused is at all times presumed to be innocent unless, I, as the trier of fact, am satisfied of guilt beyond reasonable doubt. A reasonable doubt would be one that, after a consideration of all of the evidence in the context of the charges I am considering, is one I am prepared to entertain. In these reasons, if I use the words “proved”, “established” or “satisfied”, in each case I mean beyond reasonable doubt. 17 If I am satisfied there is an explanation consistent with innocence of the accused, or I am unsure where the truth lies, then I must find the charge has not been proved beyond reasonable doubt and accordingly, the accused is not guilty. 18 I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of a witness’ evidence. -- 4 of 20 -- [2025] SADC 62 3 19 Where the prosecution relies on circumstantial evidence to prove an element of the offences, I must not return a verdict of guilty unless the circumstances exclude any reasonable explanation consistent with innocence. I must be satisfied that guilt is both a rational inference, and in the circumstances, the only rational inference I can draw. 20 I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy or prejudice and not be influenced by public opinion in relation to this matter. 21 The accused gave evidence in his defence. He was not obliged to give evidence. He had the right to remain silent in answer to this charge. I have assessed his evidence and the weight to be given to it in the same way as with any other witness, subject to one important caveat. By giving evidence, the accused took on no onus of proof. He was not required to prove what he said. It was for the prosecution to disprove it. Even if I was to reject his evidence, it would not follow that he is therefore guilty of the offence. I must carefully consider the prosecution evidence and determine whether, despite the evidence of the accused, the prosecution has proved the offence beyond reasonable doubt. Equally, if having considered all of the evidence I am unsure where the truth lies, my verdict must be not guilty. 22 As the accused gave sworn evidence denying the allegations, I could only find him guilty if I reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt of his guilt on the prosecution evidence. It is not necessary for me to believe the accused’s evidence for it to give rise to a doubt.5 I am to assess the evidence of the accused in the same way as I assess the evidence of all other witnesses.6 I give the accused credit for taking a course which he was not obliged to. 23 The question for me is not whether I prefer the evidence of the complainant to that of the accused.7 Nor can I resolve the issue in dispute by making a choice as between the conflicting bodies of evidence.8 Even if I were to prefer the evidence of the complainant to that of the accused, that would not be determinative of the accused’s guilt or innocence. The accused may be found guilty if, and only if, I am satisfied beyond reasonable doubt that the prosecution have proved each and every element of the offence charged. 24 The accused is charged with two separate counts. Each of these counts must be considered separately and only in relation to the evidence that is admissible in respect of each. 5 De Silva v The Queen (2019) 268 CLR 57, [10]-[11]; R v Alwazan [2016] SASCFC 155, [3]. 6 Robinson v The Queen (No 2) (1991) 180 CLR 531, 535-536; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen (2011) 245 CLR 257. 7 Liberato v The Queen (1985) 159 CLR 507, 515. 8 De Silva v The Queen (2019) 268 CLR 57, [10]-[11]. -- 5 of 20 -- [2025] SADC 62 4 25 EF and KC gave evidence of initial complaint. Evidence of complaint is admitted to inform the Court as to how the allegations first came to light and to demonstrate consistency of conduct of the complainant. Consistency of conduct encompasses both consistency of making a complaint when one might be expected to be made, as well as consistency in the content of the complaint. There may be varied reasons why a person makes a complaint at a particular time and to a particular person. Otherwise, it is a matter for me as to what weight is attached to the evidence. It is not admitted as evidence of the truth of what is alleged. 26 Special arrangements were put in place for ChB without objection. The court was closed during her evidence, and she gave evidence from outside of the court room by audio-visual link. ChB was also accompanied by a court companion. There was no objection to her evidence being given in this way. It is impermissible to draw any adverse inference against the accused because of such arrangements. The use of those arrangements must not cause any extra or undue weight to be attached to ChB’s evidence. 27 ChB participated in an audio visual record of interview when ChB was aged 13 years.9 I admitted the audio visual record of that interview pursuant to s 13BA of the Evidence Act 1929 (SA). I was satisfied the requirements for its admission pursuant to s 13BA(3) had been met and, in particular, I was satisfied that the complainant had the capacity to give unsworn evidence at the time of the recording. There was no challenge to the admission of the recording. 28 I remind myself that the evidence of the interviews is what I see and hear in the audio visual records. The transcript of the interview is an exhibit and is only an aid to my understanding of the interviews. Prosecution case ChB’s evidence 29 The prosecution tendered a prescribed interview between ChB and Detective Senior Bramann dated 13 October 2023, marked P1. The transcript for P1 was marked MF1 P2. 30 ChB was born on 16 November 2009. She was aged 13 years, 11 months at the time of the prescribed interview. She also gave sworn evidence before me at trial. She was a few weeks shy of her 15th birthday at that time. She was in year nine at school. 31 ChB is the biological daughter of the accused. Her parents separated when she was approximately five years old, following which she and her older sister moved to Lismore. She did not have any contact with her father for a number of years. ChB reconnected with her father when she was 13 years of age. The extent of communication between them prior to the alleged offending was that her father came and visited her in Lismore, they texted once or twice and she came down to 9 Exhibit P1. -- 6 of 20 -- [2025] SADC 62 5 visit him in Adelaide in October 2023, when the alleged offending is said to have occurred. 32 On 6 October 2023 she visited Adelaide to stay with her father to celebrate her half-sister, KC’s, birthday. 33 ChB stayed with her father at the Oaks Pier Hotel in Glenelg. A floor plan of the two-bedroom apartment was tendered and marked P3. ChB’s bedroom was separate from her father’s and also had an ensuite. Her father stayed in an adjoining area, which contained a kitchenette, lounge room, bedroom and ensuite. 34 They had dinner at the hotel and then returned to the apartment. She went to her room to get changed and went in and sat on the couch with her father. She was showing him things on her phone. He had two iPads and she thinks he was playing a dragon game. 35 When asked by the prosecutor ChB clarified that she was seated on the right hand side of her father. The couch was a three-seater couch, and they were seated “pretty close” together. She was “leaning on him a bit”. Her left elbow was closest to his right elbow. 36 ChB was wearing her pyjamas. She was wearing underwear but not a bra. 37 ChB described the offending in the prescribed interview: “Um, so, he kind of got like close to me, and then, um, he put his hand under my shirt. Um, and started touching my boobs. Um, and then I asked him what he was doing, and then he was just like, “Oh, I’m sorry,” um, and then he put his hand down my pants. And then, um, I told him not to, and then he just put his hand on my stomach, and then a couple of minutes after that, um, I told him I had to go, and I like, and I told him that I was just going to bed.”10 38 She further described that after he had touched her breast the first time, he took his hand out of her shirt and licked his finger and touched her breast again. 39 ChB was asked further questions in examination in chief and clarified that on both occasions the accused touched only one of her ‘boobs’.11 She stated that he touched her right breast with his hand in a rubbing motion and squeezed it a bit. After he licked his finger, he touched her right breast again with the same motion. She described feeling sick when he was doing this. 40 In cross-examination, she said she was sitting on his right-hand side and the accused reached across behind her back with his right hand up and under her shirt. She asked him what he was doing. He kind of apologised. He removed his hand, 10 Exhibit P1; MFI P2, p7. 11 T 22. -- 7 of 20 -- [2025] SADC 62 6 licked his thumb and then put his hand back in the same spot and did the same thing. This lasted about a minute or so.12 41 In the prescribed interview she stated that the accused put his hand down her pants, he traced the line of her underwear on her inner thigh. She asked him what he was doing, and he responded that he was just checking, and that she didn’t know what he meant by that. He then removed his hand from her pants and placed his hand on her stomach on the outside of her clothes. 42 She was asked further questions in examination in chief as to what part of the underwear the accused touched with his hand and responded that first it was the top seam, and he moved his hand down between her thighs and ran his hand along the right seam. In cross-examination she stated that he moved his hand on the inside of her pyjama pants and on the outside of her underwear. He moved his hand around the elastic around the waist. She described him running his finger across it and then moved around to the elastic on her inner thigh. She asked the accused what he was doing, and he said he was “just checking”.13 43 This went on for approximately 30 seconds or so. She said there was “pretty much nothing” going through her mind at that time and she just wanted to leave. 44 ChB stated that after he stated he was just checking he moved his hand away and placed it on her stomach for a couple of minutes. Nothing was said in that time. 45 ChB said her phone was about to die and she told the accused she was tired and going to bed. She said that when she got up from the couch, he told her to sit on him and she said she was tired and left. 46 It was suggested to her in cross-examination that the accused asked her to sit down and patted the couch to which ChB responded that her memory was that he told me to sit on him. She denied the suggestion the accused had fallen asleep with his head on her shoulder while she was playing a game on her phone. 47 It was suggested by the accused’s counsel that there were several matters discussed between ChB and her father whilst they were sitting on the couch. First, that the accused suggested to her that she should tidy up her room for her mother. ChB denied such a conversation took place. Secondly, a conversation around ChB’s career goals. ChB said she did not remember a discussion on that topic, but that she did say to her father she wanted to be a check out chick.14 Finally, she agreed her father raised the topic of him moving to live closer to her, but denied that she told him he needed to be closer to her sister, KC. 48 She went back to her bedroom and believed she locked the door to her bedroom as she didn’t feel safe. She locked the bathroom door as she still didn’t 12 T 25 - 26. 13 T 54 - 56. 14 T 59. -- 8 of 20 -- [2025] SADC 62 7 feel safe enough. She was cross-examined about the doors between her father’s apartment and her bedroom and agreed that there were two locking doors between the apartments and that his door was propped open with a chair and her door was closed and locked. She agreed that if her bedroom door was locked there would not be any need to lock herself in the bathroom, but she did so to feel more secure. 49 Within a minute or two of being in the bathroom she messaged her friend, EF, via Snapchat and spoke to her on the phone. She could not remember what she told her. She said that she did not remember telling EF that she was going to have a shower. 50 A photo of EF’s phone showing the message exchange was identified by the complainant and tendered. Relevantly, the messages disclosed that ChB told EF that her dad was creeping her out, that he keeps touching her and that she didn’t know what to do. She disclosed that he put his hand up her shirt and touched me. She described it as happening “just then” when she was in the lounge room. 51 In cross-examination she was asked if there was any reason why she messaged her friend and not her mother. She stated that she didn’t know what to do and she trusted her. 52 The complainant stated that EF told her to contact her mother which she did, and she was collected from the apartment a short while later by KC, in company with hotel security. Her father came out of his room and asked if she wanted to talk to him and she and KC both told him no. 53 She stayed the rest of that evening in KC’s room. ChB told KC what her father had done to her, but she could not now recall what she said to her. EF’s evidence – The initial complaint 54 EF is a school friend of ChB. She was in year 9 at school and had been friends with ChB for four to five years. 55 She identified the Snapchat exchange between herself and ChB as the messages that were sent between them at approximately 11.00 pm on 7 October 2023. She stated that following receiving the messages she advised her mother about the content of the messages and then her mother contacted ChB’s mother. 56 In cross-examination she stated that during the conversation between ChB and herself, ChB told her that she had told her father that she was going to have a shower. LD’s evidence 57 LD is the mother of ChB. The accused and LD have an older daughter, IB. For the period of their relationship the accused and LD lived in Adelaide. They separated when ChB was approximately 2 years of age and LD moved to Lismore -- 9 of 20 -- [2025] SADC 62 8 with her two children. LD stated that there were very limited interactions between ChB and her father after that time. During the previous year ChB described wanting to have a relationship with her father and he came up to stay in Lismore in the 2023 January holidays. They spent time together during the day and had dinner together most nights. ChB did not stay overnight with her father during this visit. 58 Plans were made for ChB to travel to Adelaide in October 2023 for ChB’s older half-sister, KC’s, birthday. ChB flew to Sydney on 6 October and was met by the accused at Sydney airport and they flew to Adelaide together. The plan was for her to return to Lismore on the Sunday evening. 59 On Saturday 7 October 2023, LD was at work when she received a phone call from her daughter. She described her daughter as being upset and barely able to speak. She was crying and it was difficult to understand what she was saying. She was “just sobbing”.15 ChB told her that something had happened between her and her father, and she wanted to come home. She described ChB as being distraught throughout the phone call. 60 Subsequent to that call, LD telephoned KC and made arrangements for her to collect ChB from her hotel room. She also telephoned the police. LD flew to Adelaide the next morning and collected her daughter. KC’s evidence 61 KC is the daughter of the accused from an earlier relationship. She is the older half-sister of ChB. Her parents separated when she was quite young, and she continued to have a relationship with her father until he moved to Adelaide, and she remained living in Mildura with her mother. They remained in contact but saw each other less frequently. 62 Arrangements were made to catch up with her father and for ChB to attend from Lismore for her birthday. She travelled to Adelaide with her half-brother, two children and her mother. Upon arrival, they met up with CAB at approximately 11.00 am on 7 October 2023 in the lobby of the Oaks Pier hotel. As her room wasn’t ready, she went to CAB’s room with her two children and also met up with ChB. 63 They went to a shopping centre for a few hours and returned to the hotel room at approximately 1.30 pm. CAB had arranged for ChB and KC to have their hair and make-up done as a surprise for dinner that night. Thereafter, they swam in the hotel pool before dinner at 5.00 pm in the hotel. After dinner they went for coffee and cake and to the park before returning to the hotel at approximately 9.00 pm. Arrangements were made to meet in the lobby in the morning for breakfast and 15 T 65. -- 10 of 20 -- [2025] SADC 62 9 KC returned to her hotel room with her two children. She described ChB and CAB as looking happy. 64 At 10.52 pm she spoke with LD on the phone and was asked to collect ChB from her hotel room. She attended ChB’s room with hotel security and knocked on the door. ChB answered the door. She was visibly upset and crying, and ChB immediately hugged her. 65 As they were gathering ChB’s belongings, the accused came to the door and asked what was going on. He then asked ChB if she wanted to talk. KC responded “No, we will speak in the morning. I’m taking ChB with me.” The accused said “Ok” and went back inside his room. 66 KC took ChB to her hotel room. She described ChB as being visibly upset, crying, shaking and apologising. 67 KC told ChB that if she wanted to speak to her about it she could. After ChB took her make up off, she asked her if she could tell KC what happened. ChB told her she was lying on the couch with the accused and watching TV together. The accused put his hand on her stomach and then put his hand up her top. He then proceeded down her pants. ChB said she was frightened and got up and went to the bathroom. She made an excuse she was taking her make up off and locked herself in the bathroom. She described ChB as visibly shaking and crying throughout the conversation. 68 In cross-examination KC stated that ChB told her that when the accused placed his hand up her shirt, he grabbed her breast and that when he put his hand down her pants it was above her knickers but inside her pyjama shorts. Defence case Accused’s evidence 69 The accused gave evidence. He stated KC was his eldest daughter from a previous marriage. He separated from KC’s mother when KC was approximately four years old. He later had two daughters with LD, IB and ChB. That relationship ended when ChB was approximately one year old. Following the breakdown of that relationship, LD moved interstate, and he didn’t see IB or ChB for a very long time. 70 In early 2023 LD contacted the accused and advised that ChB wanted to get to know him. He subsequently arranged to go to Lismore to see ChB. He spent approximately six days in Lismore on that occasion. Whilst visiting he spent time with her during the day with ChB and had dinners with her. He visited her at her house during that period and observed ChB’s bedroom, which he described as a bit of a pigsty. ChB dropped a chocolate wrapper in her bedroom, which she said her mother would pick up. -- 11 of 20 -- [2025] SADC 62 10 71 Arrangements were made with LD for ChB to travel down to Adelaide for the weekend of 6 October 2023 to celebrate KC’s birthday. The accused flew to Sydney and met ChB, and they then travelled to Adelaide together. 72 KC had booked to stay at the Oaks Pier hotel and the accused had booked a two-bedroom apartment for himself and ChB. The bedrooms each had separate keys, and the accused did not have access to ChB’s room with his key. 73 On 7 October 2023 they went shopping together and then came back to the hotel as the accused had arranged a make-up and hair session for KC and ChB. They had birthday dinner that night in the hotel restaurant and then went for a walk to get coffee and cake before returning to the hotel. By that stage it was dark, and they went to their respective apartments for the night. 74 When they got back to the apartment ChB went to her room and the accused sat on the couch in his room playing his iPad. The door to the accused’s apartment was open and ChB came in and sat next to him on the couch. ChB sat on his right- hand side. There was a coffee table in front of the couch and the accused had his feet resting on it. He put his iPad down and took his feet off the table. 75 The accused wanted to have a conversation with ChB. There were several topics discussed. First, he spoke to her about the state of her room in Lismore. That it was a bit of a “pigsty”,16 and she needed to be a bit more respectful to her mother about keeping it clean. Secondly, he spoke to her about her plans for the future and that working in a supermarket was not shooting high enough. Finally, he spoke to her about him moving up to Queensland to be closer to her and getting to know each other better. The accused said she shut down that conversation and said that KC needs him more. 76 In cross-examination he agreed that none of those conversations affected ChB or caused her to be upset. 77 He described ChB as being purse-lipped and that she kind of shut down when he was speaking to her. She said she wanted to play a game on her phone. 78 The accused watched her play the game and then rested his head on her shoulder. He was sitting side by side with her and his hands were beside his right leg and her left leg. He stated he fell asleep and the next thing he recalled was waking up to a jolt due to ChB getting up from the couch. He subsequently fell into the spot where she had been seated. ChB said she wanted to go into her room and take her make up off. The accused described that he was patting his chest as he was experiencing chest pain and asked her if she could sit. She said no and ‘took off’.17 He said he was a bit concerned about the strength of the chest pains and 16 T 92. 17 T94. -- 12 of 20 -- [2025] SADC 62 11 wanted her around. He denied having asked her to sit on top of him, or that anything had caused her to leave the room in so far as he was concerned. 79 He said he fell asleep on the couch and when he woke up, he texted her ‘kiss goodnight’ and didn’t get a response. He shut the door to his apartment and went to bed. The plan was for everyone to catch up in the morning for breakfast before ChB caught her flight home. 80 He was awoken by a loud knock on his door and when he answered the door he saw security, KC and ChB. He observed ChB was upset and crying. 81 He denied having put his hand in her shirt or into her pyjama pants. Addresses 82 Ms Sprod submitted that the prosecution case rests fundamentally on the direct evidence provided by ChB, and that the Court’s acceptance of her account is central to establishing the accused’s guilt. She contended that ChB should be regarded as an honest and reliable witness who delivered a detailed and compelling narrative of the alleged sexual offending, which ought to be accepted beyond reasonable doubt. Contrary to the suggestion that she was a young girl fabricating a tale for the police and the Court, Ms Sprod argued that ChB’s account bore the hallmarks of truth. 83 Ms Sprod described ChB’s evidence as candid and direct, noting that it was evident she found discussing the events difficult and embarrassing, an entirely natural reaction given her age and the subject matter. She emphasised that ChB’s statements during both the prescribed interview and her courtroom testimony remained consistent and steadfast, even under cross-examination. There was nothing in her demeanour to suggest evasiveness, guardedness, or that she had something to hide. 84 With respect to the charged conduct, Ms Sprod argued that the level of detail provided by ChB was commensurate with the gravity of the events described, particularly given their nature as instances of sexual assault perpetrated by her father. Her response to seek refuge in the bathroom and lock the door in an attempt to make herself feel safe was, in Ms Sprod’s submission, entirely consistent with how a young girl might react in such distressing and isolating circumstances. 85 ChB’s inability to recall every detail of the evening was not, Ms Sprod submitted, indicative of fabrication or invention. Rather, it reinforced the authenticity of her account, reflecting the limitations of memory rather than a deliberate attempt to mislead. 86 In relation to the complaint evidence, Ms Sprod submitted that ChB made an immediate and spontaneous disclosure to her school friend, EF, which directly related to Count 1 and served as compelling support for her credibility. She further submitted that ChB’s later elaboration of the events in a complaint to her sister, -- 13 of 20 -- [2025] SADC 62 12 KC, where she described the accused putting his hand up her top and then moving it down towards her pants related to Count 2. These complaints, Ms Sprod argued, demonstrated consistency of conduct and supported her reliability. 87 The emotional distress observed by both ChB’s mother and her sister, KC, was submitted as further corroborative evidence. This distress, occurring within minutes of the alleged offending, was said to bear a clear temporal connection to the events in question and, critically, was not reasonably explicable on any other basis. Even the accused acknowledged that there was nothing else that had happened that might have upset the complainant that day. 88 Ms Sprod further argued that, although not explicitly put to ChB in cross- examination, it would be implausible to suggest that any or all of the three conversations alleged to have occurred between the complainant and the accused on the couch could have triggered the fabrication of allegations of sexual abuse. She submitted that the offending occurred in circumstances where there was both opportunity and a degree of brazenness. 89 Finally, Ms Sprod submitted that the accused’s denials regarding the alleged conduct could be rejected beyond reasonable doubt, as his account of the events on the couch was unsatisfactory and inconsistent with the remainder of the evidence. Notably, she submitted this was the sole area in which the complainant’s veracity was meaningfully challenged; there was no substantive dispute regarding other aspects of her evidence. Nonetheless, Ms Sprod acknowledged that even if the accused’s account was rejected, the Court must still be satisfied beyond reasonable doubt of the truthfulness and reliability of ChB’s evidence in respect of the charged acts. 90 Mr Richards submitted that, to the contrary, ChB’s evidence, both during the prescribed interview and in her oral testimony, was notably lacking in detail regarding the alleged acts. He highlighted specific instances during the interview18 in which she was invited to elaborate but was unable to do so or was simply unable to recall specific detail19 resulting in, he submitted, a complete absence of clarity as to what was purportedly occurring at the relevant time. 91 Further, he contended that there were inconsistencies between her prescribed interview and her oral evidence as to where he specifically touched her underpants. 92 Finally, there was an inconsistency between the explanation the complainant provided in court for telling her father she wished to leave the room, and the versions she had previously relayed to KC and EF. 93 In his submission, the complainant’s account bore the hallmarks of a fabricated narrative, constructed by someone inexperienced and devoid of the specificity that one might reasonably expect. He pointed to the detail concerning 18 Exhibit MFI P2, questions 69 and 84. 19 Exhibit MFI P2, questions 79 and 94. -- 14 of 20 -- [2025] SADC 62 13 the licking of the finger, which he argued was incongruous with the remainder of her account. 94 Regarding the distress exhibited by the complainant, Mr Richards suggested that it could plausibly be attributed to a variety of causes, including an emotional reaction to her conversation with her father. He maintained that the complainant’s account was deficient in detail, lacked internal coherence, and was devoid of any indication of grooming. Consequently, he submitted that if the court remained uncertain as to where the truth lay, it was obliged to acquit the accused. He argued that the existence of doubt in relation to the complainant’s evidence necessitated a verdict of not guilty. Assessment of witnesses 95 The issue in dispute is whether the sexual acts occurred, the resolution of which involves an assessment of ChB’s credit and reliability. The prosecution case is predicated on my acceptance of ChB’s evidence beyond reasonable doubt. 96 Prior to dealing in the matters relevant to ChB’s credit and reliability in detail it is useful to set out my findings regarding the initial complaint and, the elaboration of the initial complaint and the evidence of distress. These matters were not significantly in dispute. 97 Evidence of complaint was given by two witnesses, EF, her close friend and KC, her half-sister. 98 EF was a plainly honest witness, and her evidence was supported by the Snapchat exchange. I accept that ChB did complain to her friend, EF, using the words recorded in the messages and that was referable to the sexual act in Count 1. 99 I also found KC to be a plainly honest witness. 100 Further, that ChB elaborated on that initial complaint to her sister, KC, in that she further disclosed that the accused had put his hand up her top and then proceeded down to her pants and that his conduct frightened her and she made an excuse that she was taking her make up off and locked herself in the bathroom, were referable to the charged conduct, and were consistent with ChB’s evidence as to the charged conduct. 101 The complaint to EF resulted in the complainant’s mother contacting KC and arranging for her to collect ChB from her apartment. The complaint to KC occurred when they returned to KC’s apartment. There was further detail provided to KC expanding upon what was said to EF. I am satisfied that the disclosure to KC being made in close succession and in the immediate aftermath of the offending provides a sufficient connection to render them one ‘initial complaint’.20 20 Evidence Act 1929 (SA), s 34 M(6). -- 15 of 20 -- [2025] SADC 62 14 102 For a young girl to immediately disclose sexual abuse to a trusted friend is readily understandable. In addition, for her to have provided only limited details of the abuse to her friend over messages is also understandable given the subject matter and that the perpetrator was her father. Her discomfort and fear were apparent from the content of the messages. 103 It is also readily understandable that following when ChB was away from the accused and in the safety of KC’s apartment that she felt comfortable making further disclosures about the sexual acts. By that stage she was effectively in the care of KC, her older half-sister. 104 While there are some inconsistencies in the complaint evidence as to the reason given to her father for wanting to leave the room, I consider the reason given, as opposed to the act of wanting to flee, itself to be a peripheral matter which does not impact, to any significant degree, my assessment of her overall credibility. 105 For these reasons, I consider the complaint evidence explains how the offending came to light and does demonstrate a significant degree of consistency in ChB’s account, and I give the complaint evidence considerable weight in my overall assessment of ChB’s evidence. I remind myself that the complaints are not evidence of the truth of what ChB asserts. 106 I turn to the evidence of distress. The complainant’s mother described her daughter as being upset and barely able to speak. She was “just sobbing” and it was difficult to understand what she was saying. She made arrangements for KC to collect her from her apartment. At that time KC described ChB as visibly upset, she was crying, shaking and apologising to KC. The complainant and KC returned to KC’s apartment, following which the complainant elaborated and made further disclosures about the offending. During that discussion, KC described the complainant as having the same demeanour. I found both the complainant’s mother’s and KC’s evidence as to how ChB presented when she was speaking with them as consistent and compelling. It was also consistent with the accused’s evidence that she appeared to be crying when KC came to collect her with security. 107 I accept that the complainant was genuinely distressed when she was speaking to her mother and KC. The level of that distress was clearly described by both of them. ChB’s distress is circumstantial evidence which supports her credibility. I direct myself that this evidence of distress is of limited use and is only relevant to whether the complainant has acted in a consistent manner. It is not used as evidence of guilt in relation to any sexual act. 108 I have considered whether the distress was feigned or from some other cause. To that end, I have considered whether ChB’s distress was attributable to any of the matters discussed with her father immediately prior to her leaving his apartment. I do not consider the nature of the matters discussed would be such that they would cause ChB to display the level of distress she did in discussions with her mother and KC. The timing of her distress, immediately after leaving her -- 16 of 20 -- [2025] SADC 62 15 father’s apartment, is temporally connected to the alleged sexual acts. I do not consider there is any other explanation for her distress other than the matters she was discussing. 109 I turn to an assessment of the complainant’s credit and reliability. There was nothing about ChB’s demeanour or presentation that caused me to doubt what she said. I formed a favourable view of her evidence based upon her demeanour. Having said that, I bear in mind the danger of “too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.21 110 ChB was nearly 14 years old at the time of her interview with police and nearly 15 at time of giving her evidence. She was quietly spoken, looked down and was clearly upset and embarrassed speaking about private matters. She did not appear to be fabricating or exaggerating her evidence. ChB impressed me as an honest witness. The way in which she described the offending and her demeanour when doing so was consistent with her describing events she had experienced. An example of this is when she said she didn’t know what the accused meant when she asked him what he was doing and he said he was “just checking”. It struck me that she was genuinely recalling the confusion of a lived experience. 111 ChB’s account of the alleged conduct contained the amount of detail that might be expected having regard to her age and maturity. Whilst I accept that there was some lack of detail in her account in the prescribed interview, I consider that was largely as a result of the questioning rather than a lack of honesty or reliability on her part. Considerably more detail of the alleged sexual acts and surrounding circumstances was elicited in her oral testimony. By way of example, as she was more specifically questioned, ChB elaborated upon how she and her father were seated on the couch and the manner in which he reached behind her back with his right hand and placed it up her shirt to touch her breast. 112 I do not consider the criticisms made by Mr Richards as to the lack of clarity in her account are borne out. A consideration of the video shows that, where there was no audible response to answers, the complainant is seen nodding her head in agreement. In light of the complainant’s age and that she was plainly upset during the interview, I do not consider the occasions that she was unable to remember specific details to detract from her veracity or reliability. 113 I have carefully considered those aspects of ChB’s evidence which are said to be inconsistent. 114 Whilst the words “boobs” and “boob” were used interchangeably by ChB and Detective Bramann in the police interview, ChB clarified in her oral evidence that it was only the one breast that was touched by the accused on both occasions. I do not consider there to be an inconsistency in her evidence in that respect. It is 21 Fox v Percy (2003) 214 CLR 118, 128 [30]. -- 17 of 20 -- [2025] SADC 62 16 not uncommon for people to imprecisely use the plural form ‘boobs’ even when referring to only one breast. Such common usage can give rise to ambiguity and was appropriately clarified by Ms Sprod. I do not consider there to be any inconsistency in the complainant’s account based on her and others’ interchangeable use of those words. 115 I do not accept Mr Richards’ submission that the complainant’s description of licking his thumb was unusual in the context of the sexual acts described. While such conduct may appear unusual when viewed in isolation, it is not implausible when considered within the broader context of the alleged acts of touching the complainant’s breast and her inner thigh. The act may have been intended to heighten his own sexual gratification or to facilitate some other form of touching. I do not consider it to be inconsistent with the nature of the conduct described by the complainant or to detract from her credibility. 116 I accept there is an inconsistency between the complainant’s prescribed interview and her oral testimony about whether the accused traced the upper band of her underwear. In her prescribed interview she stated that it wasn’t the top of them and in cross-examination she described the accused touching both the elastic at the top of her pants and then the elastic near her right inner thigh. 117 Whilst this inconsistency in ChB’s account relates to an aspect of the alleged sexual act it is not the central aspect of the conduct, being the touching of ChB’s thigh. The inconsistency is not, in my view, determinative of her credibility. It is reasonably explicable by reference to the complainant’s level of distress at the time of the prescribed interview. Given the emotional state she was in, some lack of precision or clarity is understandable and does not, in the circumstances, cause me to doubt the truthfulness of her evidence as to the charged acts having occurred. 118 I found the complainant’s response to the offending to be compelling. She was in a vulnerable position being away from her home and under the care of the perpetrator. Her father was not well known to her at time. It is a natural response to want to flee the situation and retreat to somewhere she felt safe. Her description of having locked both the door to her apartment as well as the bathroom door was compelling. 119 Whilst it was not specifically suggested to ChB that any of the conversations with her father immediately before her leaving his apartment provided a motive to lie, nor do I consider they would provide one, Mr Richards correctly submitted that there may be many reasons why a witness may lie and to endeavour to find a reason would call for speculation. I have not treated ChB’s evidence as more credible because there is no evidence as to any motive to lie. I have not concluded that the absence of any evidence as to a motive to lie means that ChB is telling the truth. 120 I turn to the accused’s evidence. The accused’s demeanour in the witness box did not cause me to doubt his evidence. He presented as calm, measured and responsive throughout his evidence. His account was, for the most part, consistent -- 18 of 20 -- [2025] SADC 62 17 with the evidence given by the complainant and other witnesses, save for his falling asleep at the time it is alleged the offending occurred and a denial of the conduct the subject of the charges. It is in relation to that conduct alone that his evidence diverged in a material way. 121 I turn to consider that evidence. The effect of the accused’s evidence is that he fell asleep at precisely the time the alleged sexual acts occurred. I have given careful consideration to that aspect of the accused’s evidence and consider it to be inherently implausible and lacking in credibility. His claim that he fell asleep at the precise time ChB alleges she was sexually assaulted by the accused is inherently unlikely and strains credulity. 122 I find the timing and manner in which he alleged he fell asleep had the ring of convenience, offering a means to avoid directly engaging with or responding to the substance of ChB’s evidence. I do not consider it to be a truthful account. 123 Further, I found his explanation that he was experiencing chest pain at the time ChB got off the couch to leave the room as being equally convenient to deal with the complainant’s evidence that he endeavoured to lure her back to the couch. Taken together with the surrounding circumstances, I reject his account of being asleep when the alleged sexual acts occurred and his denials of engaging in the sexual acts as being reasonably possible. 124 Having rejected the accused’s evidence as being reasonably possible I turn to carefully consider the prosecution evidence and whether, despite the evidence of the accused, the prosecution has proven the offences beyond reasonable doubt. 125 I have had regard to the whole of the evidence in this matter and have directed myself in accordance with the directions I have referred to in [15] to [28]. I have scrutinised the evidence of ChB. As previously discussed, I have considered the criticisms that have been made of it individually and in combination. 126 I am satisfied that ChB is a credible and reliable witness in respect of the charged acts. I do not accept the accused’s evidence as being a reasonable possibility for the reasons I have given. 127 I accept the evidence of ChB as to the sexual acts performed upon her by the accused. I am satisfied that the offences took place when an opportunity arose at the end of the evening when ChB and the accused were alone together in his hotel room. 128 I am satisfied that the accused touched her under her top on the breast on two occasions and licked his thumb. Further, that he touched her on the outside of her underwear and on the inner thigh. I am satisfied that each of those acts are indecent when committed against a 12 year old girl by her father in the circumstances described. I am satisfied ChB was 12 years old at the time the offences were committed. -- 19 of 20 -- [2025] SADC 62 18 Verdict 129 I therefore find the accused guilty of both counts of aggravated indecent assault. -- 20 of 20 --