[2025] SADC 69

Prosecution: R Counsel: MR R WILLIAMS SC WITH MR M MOTT - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: W, JM Counsel: MR J MARCUS - Solicitor: MATTHEW MITCHELL SOLICITORS Hearing Date/s: 18/09/2024 to 20/09/2024, 24/09/2024 to 25/09/2024 File No/s: DCCRM-23-020616 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 W, JM Criminal Trial by Judge Alone [2025] SADC 69 Reasons for the Verdicts of his Honour Judge Allen 13 June 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT The accused is charged with three counts of rape, contrary to s 48(1) of the Criminal Law Consolidation Act 1935. It is alleged that the accused raped the complainant by inserting his penis into her vagina, on each occasion, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent as to whether she consented. Verdict: Guilty of counts 1, 3 & 5. Criminal Law Consolidation Act 1935 (SA) ss 46, 48; Evidence Act 1929 (SA) ss 34CB, 34M, 34R, referred to. R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v Maiolo (No 3) [2014] SASCFC 89; R v England (2013) 116 SASR 589; Day v The King [2024] SASCA 68; R v W, CT [2019] SASCFC 18; Day v The Queen [2021] SASCA 38; Murray v The Queen (2002) 211 CLR 193, considered. -- 1 of 50 -- -- 2 of 50 -- R v W, JM [2025] SADC 69 Criminal 1 On an Information dated 23 August 2023, [W, JM] is charged with the following offences: Statement of Charges Count 1: Offence Details: Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935). Particulars [W, JM] between the 1st day of March 2020 and the 30th day of April 2020 at Davoren Park, engaged in sexual intercourse with [ZH] by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she did not consent. … Count 2: Offence Details: Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935). Particulars [W, JM] between the 1st day of March 2020 and the 30th day of April 2020 at Davoren Park, had sexual intercourse with [ZH], a person under the age of 17 years, by inserting his penis into her vagina. … Count 3: Offence Details: Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935). Particulars [W, JM] between the 1st day of March 2020 and the 30th day of April 2020 at Davoren Park, engaged in sexual intercourse with [ZH] by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she did not consent. … -- 3 of 50 -- [2025] SADC 69 2 Count 4: Offence Details: Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935). Particulars [W, JM] between the 1st day of March 2020 and the 30th day of April 2020 at Davoren Park, had sexual intercourse with [ZH], a person under the age of 17 years, by inserting his penis into her vagina. … Count 5: Offence Details: Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935). Particulars [W, JM] between the 1st day of March 2020 and the 30th day of April 2020 at Davoren Park, engaged in sexual intercourse with [ZH] by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she did not consent. … Count 6: Offence Details: Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935). Particulars [W, JM] between the 1st day of March 2020 and the 30th day of April 2020 at Davoren Park, had sexual intercourse with [ZH], a person under the age of 17 years, by inserting his penis into her vagina. … 2 The accused elected for trial by judge alone. For the reasons which follow, I find the accused guilty beyond reasonable doubt on each of the counts of rape, namely counts 1, 3 and 5. It is not necessary to consider the alternative charges. Overview Elements of the offence 3 The offence of rape is comprised of three elements. Each must be proved beyond reasonable doubt by the prosecution. -- 4 of 50 -- [2025] SADC 69 3 4 The first element is that the accused had sexual intercourse with the complainant. ‘Sexual intercourse’ includes any activity consisting of or involving penetration of a person's vagina by any part of the body of another person. 5 It is disputed that the accused engaged in penile/vaginal sexual intercourse with the complainant on any occasion. 6 The second element is that the accused had sexual intercourse with [ZH] without her consent. A person gives consent if they agree freely and voluntarily to engage in the sexual activity. Where the person agrees to sexual activity because of the application of force or an express or implied threat of the application of force, they cannot be taken to be freely and voluntarily agreeing to the sexual activity, and there is, therefore, no consent. A lack of physical violence or physical injury during the sexual activity does not signify that the complainant consented. This element is in dispute. The complainant says she did not consent. The complainant says that on each occasion of the three alleged acts of intercourse she was asleep. Section 46(3)(c) of the Criminal Law Consolidation Act (CLCA) provides that a person who is asleep is not taken to freely and voluntarily agree to sexual activity. Again, the accused suggests the acts of intercourse never took place. 7 The final element is that the accused either knew that [ZH] was not consenting or was recklessly indifferent to [ZH]’s lack of consent. The accused is recklessly indifferent to the fact that another person does not consent to sexual intercourse if: • he is aware of the possibility that the complainant might not be consenting to the act but decides to proceed regardless of that possibility; or, • he is aware of the possibility that the complainant might not be consenting to the act but fails to take reasonable steps to ascertain whether the other person does, in fact, consent before deciding to proceed; or, • he does not give any thought as to whether or not the complainant is consenting to the act before deciding to proceed. Preliminary legal directions 8 It is not necessary for a court having conducted a trial by judge alone to set out the standard and obvious directions of which a judge is bound to be aware. However, I remind myself of the following matters. 9 [W, JM] is presumed innocent unless and until his guilt has been proven beyond a reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of an offence. It is not sufficient for the prosecution to show a suspicion of guilt or to demonstrate that he is probably guilty. In making -- 5 of 50 -- [2025] SADC 69 4 findings of fact, I must rely upon the evidence given by the witnesses and contained in the exhibits. Expert witness 10 In this case, Professor White was called to give expert opinion evidence. That opinion must be within their particular areas of expertise and that opinion must be based on their knowledge, training or experience. I am entitled to accept or reject any opinion evidence however before doing so I must consider the person’s qualifications, whether their opinion is based on a fact I accept, whether the opinion is in dispute and whether it fits with any other evidence that I have heard and accepted on that topic. Election not to give evidence 11 [W, JM] elected not to give evidence in this Court. He was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to his or the case he puts forward from the exercise of that right. There may be many reasons he did not give evidence and I must not speculate on those reasons. I bear in mind that it is at all times, for the prosecution to prove its case beyond reasonable doubt. Evidence at trial 12 There were four witnesses that gave evidence at trial. They were [ZH], [MW] and Detective Richter for the prosecution and Professor White for the defence. The following is a summary of the evidence given by each witness. This is a summary only. I have considered the entirety of the evidence. Prosecution case Examination-in-chief of [ZH] Background 13 The complainant, [ZH], was born on 16 October 2003. The complainant was 20 years of age. [ZH] was living with her mother, sibling and 1 year old daughter. The complainant previously experienced a very difficult relationship with her mother. However, [ZH]’s relationship with her mother has since improved. [ZH] was not studying or working but planned to study. [ZH] finished year 12 and did a Certificate II in construction.1 Family relationships 14 The complainant’s mother and father separated when [ZH] was 2 years old. The complainant has one older sister and three younger siblings. [ZH]’s biological mother is [MW] and her father is [BH]. 1 T54.6-31. -- 6 of 50 -- [2025] SADC 69 5 15 [ZH] had a relationship breakdown with her mother at 14 years of age.2 Consequently, [ZH] left her family home. This was [ZH]’s decision.3 The complainant then stayed with other friends and family for a period of time. 16 At the time of the offending, [ZH] was only speaking with her elder sister and did not communicate with her younger siblings due to her relationship breakdown with [MW].4 Subsequently, the complainant moved into her aunt’s address at 15 or 16 years of age.5 [ZH] gave evidence that it was rough at first living with her aunt, but eventually gained her aunt’s trust.6 On the weekend [ZH] would visit her grandmother on her mother’s side to assist with chores.7 Initial relationship with the accused 17 The accused is [MW]’s cousin. The complainant believed the accused to be her second cousin.8 When [ZH] was living with her aunt, the accused would be present from time to time. They were friends and cousins. [ZH] gave evidence that they would go food shopping together.9 [ZH] would refer to the accused as her cousin if ever introduced to another person.10 When [ZH] visited her grandmother, the accused would be present and they would spend time together.11 The complainant stated that over time they became more friendly with each other and formed a friendship. [ZH] stated that they were very close friends and considered the accused, at that time, one of her best friends.12 The accused acquired his own house at some point. [ZH] commenced attending the accused’s new address. At some stage the complainant had a falling out with her aunt.13 [ZH] then proceeded to move in with the accused at Davoren Park.14 [ZH] lived with her aunt for approximately six months to a year.15 The complainant gave evidence that the accused had always been one of her mother’s close friends during her childhood, but the complainant formed a friendship with the accused later on in time.16 18 [ZH] was not affectionate as a child and did not like to hug people. The complainant gave evidence that the accused would always call her 'sweetheart' and compliment her outfits.17 2 T56.11-18. 3 T56.15-16. 4 T56.19-30. 5 T56.1-2. 6 T56.8-10. 7 T57.13-17. 8 T57.25-26. 9 T57.30-33. 10 T57.36. 11 T57.2-16. 12 Ibid. 13 T58.24-31. 14 Ibid. 15 T59.1-3. 16 T56.9-12. 17 T59.21-26. -- 7 of 50 -- [2025] SADC 69 6 Living arrangements 19 [ZH] moved into the accused’s address at 16 years of age in 2021.18 The complainant’s mother and two youngest siblings ([T] and [K]) were already residing at the accused’s house at the time.19 [ZH] engaged in a conversation with her mother and worked through their previous issues.20 Exhibit P1 - floorplan of Davoren Park 20 [ZH] confirmed that the accused was living in bedroom 1. Her mother and siblings lived in bedroom 2 and [ZH] slept in the loungeroom (room marked ‘lounge’).21 [ZH] slept on a fold out couch. [ZH]’s head would be closer to the ‘Split AC’ and her legs pointing in the direction of ‘Bed 3’.22 There was a television in the living room. Once the complainant commenced preparing to go to sleep, her mother and siblings would leave the living room.23 First incident 21 The first incident occurred a couple of weeks after [ZH] moved in with the accused.24 [ZH] had fallen asleep watching TV. The accused remained awake watching TV on the couch next to the complainant.25 [ZH] awoke to the accused’s penis inside her vagina and her shorts were pulled down. [ZH] described feeling stuck and could not move. [ZH] said ‘no’ but could not push the accused off of her.26 [ZH] went to sleep at approximately 11 pm or 12 am.27 [ZH] confirmed that nothing out of the ordinary had occurred previously with the accused.28 [MW], [T] and [K] were home at the time of this incident.29 The complainant remembered the TV still being on before falling asleep.30 [ZH] was wearing a jumper and shorts. The shorts were held up by an elastic band.31 The lights were not turned on in the room.32 [ZH] was lying on her stomach.33 The accused was on his knees behind her.34 [ZH] was not loud when the accused was told ‘no’.35 The complainant turned around and saw the accused during the offending.36 [ZH] described the motion of the accused’s penis as ‘in and out’ of her vagina.37 [ZH] could not confirm how 18 T60.16-24. 19 T60.32-34. 20 T61.2-7. 21 T61.27-38; Exhibit P1. 22 T62.21-38; Exhibit P1. 23 T63.19-24. 24 T64.1-3. 25 T63.13-18; T64.28-30. 26 T64.13-18. 27 T64.20-21. 28 T64.22-24. 29 T64.25-26. 30 T65.3-4. 31 T65.11-12. 32 T65.16-18. 33 T66.14-16. 34 T66. 35 T67.11-14. 36 T67.20-22. 37 T67.29-34. -- 8 of 50 -- [2025] SADC 69 7 long the incident lasted but it could have been approximately 5, 10 or 15 minutes.38 The accused was holding her hips during the incident.39 22 [ZH] wrote in her statement to police that the accused had put her head in the pillow on the first night, but now the complainant’s recollection was that this conduct occurred on the second night and the first night the accused was ‘just holding her hips’.40 [ZH] does not know if he ejaculated or wore a condom at the time.41 23 After the accused stopped, the accused got up and walked back to his bedroom.42 [ZH] then put her clothes back on and cried. [ZH] did not remember any fluids being present except her own discharge.43 It was unclear whether the accused was still in the house when [ZH] showered.44 The accused was working at a glass company driving trucks and would leave for work at 5 am.45 The accused left for work following the incident.46 The complainant did not fall asleep prior to the accused leaving for work.47 24 [ZH] was smoking cannabis at the time. The complainant explained this was not included in her statement due to fear of charges being brought against her by police.48 On the day of the first incident [ZH] consumed cannabis.49 The complainant had been smoking cannabis since 12 years of age.50 The accused had smoked cannabis with [ZH] on the day of the first incident.51 [ZH] could not smell any alcohol or cannabis on the accused during the first incident.52 After the accused left for work, [ZH] attempted to act normal and did not wish to alert her family members to the fact that the incident occurred.53 Second incident 25 [ZH] again stayed at the accused’s house the following night. There was no change in living arrangements.54 [ZH] was wearing a jumper and trackpants.55 The complainant wore trackpants to ‘show less skin’.56 [ZH] was wearing underwear at 38 T67.35-38. 39 T68.3-5. 40 T68.13-19. 41 T68. 42 T68.30-38. 43 T69.1-7. 44 T69.17-23. 45 T69.29-31. 46 T69.36-38. 47 T70.1-10. 48 T70.14-18. 49 T70.23-38. 50 Ibid. 51 T71.1-5. 52 T71.10-19. 53 T71.26-38. 54 T72.8-11. 55 T72.12-14. 56 T72.15-21. -- 9 of 50 -- [2025] SADC 69 8 the time. [ZH] fell asleep at approximately 11 pm or 12 am.57 [ZH] fell asleep with the TV on.58 26 [ZH] woke up in the same position as the night before, face down on her stomach. The accused was holding [ZH]’s hips, and her pants and underwear were by her knees. The accused was inserting his penis into [ZH]’s vagina in an ‘in and out motion’. 59 [ZH] said 'stop' and the accused then moved [ZH]’s head down.60 The complainant did not turn around and see the accused on this occasion. [ZH] did not remember if the accused was wearing a condom or if the accused ejaculated. [ZH] believed the incident lasted around the same time as the first incident but could not recall the exact time.61 27 [ZH] consumed cannabis again on the day of the second incident.62 The accused was smoking with the complainant on this day.63The accused again returned to his room before going to work. [ZH] heard the accused leave in the morning.64 [ZH] and the accused did not discuss matters relating to the incident the next day.65 Third incident 28 The third incident occurred on the third consecutive night. [ZH] again awoke to the accused on top of her and going ‘in and out of her vagina’. On this occasion [ZH] managed to shrug the accused off of her. [ZH] pushed back into the accused and escaped. The complainant did not say anything to the accused. [ZH] went straight to [MW]’s room.66 [ZH]’s trackpants were again down by her knees and could feel the accused’s penis inside her vagina.67 [ZH] did not look at the accused until the complainant attended [MW]’s bedroom.68 29 [ZH] sat in [MW]’s room and cried. The complainant did not speak to [MW] and did not want to wake her.69 Once the accused had returned to his room [ZH] left [MW]’s room.70 [ZH] saw the accused leave for work in the morning.71 30 [ZH] again slept at the accused’s house after the final incident. [ZH] attempted to sleep at her friend [C]’s house to not be around the accused.72 [ZH] 57 T72.30-31. 58 T72 34-38. 59 T73.27-28. 60 T73.5-10. 61 T73.28-38. 62 T74.5-10. 63 T74.16-17. 64 T75. 1-7. 65 T75.13-16. 66 T75.19-31. 67 T75.36-38. 68 T76.2-6. 69 T76. 18-23. 70 T76.28-38. 71 T77.15-18. 72 T77.26-34. -- 10 of 50 -- [2025] SADC 69 9 attempted to have minimal contact with the accused after the third incident. The complainant left the accused’s home after a few weeks and had arranged alternative living arrangements.73 [ZH] stated that her mother and the accused had an argument and her mother moved out with her siblings at some point.74 [ZH] did not know the topic of this argument.75 Complaint evidence 31 At approximately the time of the incidents the complainant’s boyfriend was [LH]. [LH] was the accused’s younger brother who is now deceased.76 The complainant started dating [LH] in approximately January 2019.77 [ZH] resided with friends after the incident. [LH] asked [ZH] why it appeared that the accused and her were no longer close with each other. [ZH] attempted to dismiss the matter. [LH] was persistent and [ZH] disclosed what had occurred.78 [ZH] did not provide any other details other than the fact that the accused raped her.79 [ZH] detected jealousy from [LH] at the time.80 [LH] instructed [ZH] to tell her mum what had occurred. [ZH] initially resisted but then had a phone conversation with [MW].81 [ZH] told [MW] that the accused raped her on three occasions but did not disclose specific details.82 [MW] did not ask for further details. [ZH] told both [LH] and [MW] that the rape occurred at the Davoren Park address in circumstances where she was asleep.83 Post alleged offending 32 After [ZH] disclosed the incident to [MW], [ZH] still had limited conversations with the accused.84 The complainant was communicating with the accused on Facebook Messenger.85 This was the only communication they had via social media.86 [ZH] confirmed the accused’s nickname was ‘Mr Krabs’ on Facebook Messenger.87 [ZH] would respond to the accused when the accused messaged each time, but did not reach out to the accused.88 They had frequent communication via social media prior to the incidents. 73 T78. 74 Ibid. 75 Ibid. 76 T79. 77 T79.15-31. 78 T80.32-37. 79 T81.2-3. 80 T81.10-12. 81 T81.26-34. 82 T82.1-4. 83 T82. 84 T83.10-16. 85 T83.22-27. 86 T83.24-27. 87 T83.30-32. 88 T83-84. -- 11 of 50 -- [2025] SADC 69 10 Exhibit P2 – screenshot taken from Facebook Messenger 33 [ZH] was taken to Exhibit P2, a screenshot taken from Facebook Messenger. The message from the accused stated, ‘I’m sorry for my actions [ZH]. I will accept whatever you decide to do. Please know I am very remorseful’. [ZH] confirmed that this was received on Sunday, 11 July 2021. [ZH] had cleared his nickname on Facebook Messenger at this time.89 The complainant blocked the accused on Facebook after the message was received.90 The messages at the top of the screenshot occurred after the incident. [ZH] never spoke to the accused about the incident either in person or online.91 Cross-examination 34 [ZH] confirmed her grandmother is [JT].92 [ZH] was living at her aunt’s house and visiting [JT]. [ZH] would sleep at her grandmother’s during school holidays.93 [ZH] did not know when the accused moved out of [JT]’s house.94 Cannabis use 35 [ZH] had been smoking cannabis since 12 years of age and stopped smoking due to pregnancy.95 The complainant was using cannabis from the ages of 12-19 years of age on a daily basis. [ZH] consumed approximately ‘10 cones a day, a lot, I was smoking a lot’.96 [ZH]’s cannabis use increased over time.97 There were times when [ZH] would consume more cannabis when stressed.98 First incident 36 [ZH] slept in the loungeroom of the accused’s home.99 [ZH] laid on her stomach and the accused engaged in sexual intercourse with her.100 The complainant recalled going to sleep with a blanket on top of her but does not remember the specific bedding.101 [ZH] always slept on her stomach at the time.102 [ZH] was wearing shorts, a jumper and underwear.103 [ZH] laid on her stomach and woke up to the accused’s penis in her vagina. The complainant confirmed that the accused was on her knees. [ZH] could not recall how far apart her legs were, but suggested it could be comparable to a ruler.104 [ZH] said ‘no’ to the accused but it 89 T85.37-38. 90 T86 12-14. 91 T87. 92 T88.12-13. 93 T88.14-21. 94 T89.5-8. 95 T89.14-21. 96 T89.31-34. 97 T89-90. 98 T90.14-26. 99 T94.13-15. 100 T94.19-21. 101 T94. 102 T95.4-11. 103 T94.13-14. 104 T96. -- 12 of 50 -- [2025] SADC 69 11 could have been a variation of this statement.105 [ZH] said ‘stop’ one or two times to the accused.106 [ZH] did not physically attempt to stop the accused.107 When [ZH] resided at the accused’s home, [ZH] could hear footsteps throughout the whole house including the accused’s room.108 Memory of incidents 37 [ZH] signed four affidavits.109 [ZH] confirmed that each statement was true.110 The complainant specified that her memory had improved at the time of giving evidence compared to when the complainant signed her affidavit on 15 July 2021.111 [ZH] had not seen a change in her memory since ceasing cannabis use. [ZH] insisted that there were no holes in her memory, and it had improved due to her discussing it in her evidence as well as with both the police and prosecution team prior to the trial.112 [ZH]’s memory had improved and the complainant was now able to recount that during the first incident the accused held her hips rather than her head down at the time.113 This inconsistency on the evidence was accepted by the complainant. [ZH] confirmed in her statement that the accused pushed her head, but this, in fact, did not occur. [ZH] described her statement as a ‘lie’.114 Second incident 38 [ZH] confirmed that the same offending occurred on the second night.115 The offending took place in the exact same way as the first night apart from the fact that this time the accused did place his hand on the back of her head.116 [ZH] was sleeping on her stomach at the time.117 [ZH] clarified that in her evidence ‘sleeping on her side’ meant on her stomach.118 Third incident 39 [ZH] wore track pants instead of shorts and a jumper. [ZH] wrapped herself in a blanket on this occasion as well.119 The complainant did this as a preventative measure and make herself feel protected.120 [ZH] was a heavy sleeper at the time.121 [ZH]’s trackpants were baggy but fit around her waist tight.122 [ZH]’s hips were in 105 T97.2-6. 106 T97.15-20. 107 T97.21-23. 108 T98. 109 T101. 110 T102. 111 T103.31-36. 112 T105. 113 Ibid. 114 T108 11-16. 115 T109. 116 T109.18-21. 117 T110. 118 T112. 119 T112.27-38. 120 T113. 121 T113.23-28. 122 T113.32-38. -- 13 of 50 -- [2025] SADC 69 12 the same position each time.123 The removal of [ZH]’s pants, the blanket and moving [ZH]’s hips did not wake the complainant at any stage.124 After the accused returned to his room, [ZH] composed herself, then returned back to the loungeroom. In her statement from the 15 July 2021, [ZH] stated, ‘I stayed in my mum’s room the entire night’. Mr Marcus put to the complainant that she had included details in her statements that [ZH] knew was not true but thought it sounded more believable. [ZH] admitted that she did lie to sound more believable in this regard. However [ZH] did not lie in any other statements.125 [ZH] attempted to fix this mistake by giving truthful evidence before the Court.126 The complainant’s statement from 18 August 2024 was put to her where [ZH] described the third incident and the fact that [ZH] stayed in [MW]’s room until the accused returned to his room.127 [ZH] did not provide an explanation as to why two different explanations were expressed in relation to the same incident.128 Cannabis use 40 [ZH] smoked cannabis prior to each incident.129 [ZH] smoked cannabis through a bong each day.130 [ZH] would use cannabis throughout the day.131 [ZH] would have smoked cannabis with the accused during each day at some point.132 Post incident 41 [ZH] confirmed [MW] had a fight with the accused and left the Davoren Park address. [ZH] never stayed at the property by herself with the accused present after the third incident. [ZH] would instead stay at her friend’s house.133 [ZH] would also stay at her aunt’s house from time to time.134 [MW] moved out of the accused’s property before [ZH].135 [ZH] then moved between friends couches before settling with [LH].136 The complainant did not mention [MW] moving out in her statement from 15 July 2021.137 Prior to moving in with [LH], [ZH] would stay at her friend’s house then would return to the accused’s during the day.138 [ZH] did not move in with [MW] after the third incident due to fear of being kicked out again.139 [ZH] did not ask [MW] to move out with her.140 It could have been a week to a month 123 T114.22-24. 124 T114. 125 T118. 126 T119. 127 T120. 128 T120.29-32. 129 T115. 130 T116. 131 T116.15-18. 132 T117.9-14. 133 T122. 134 T123. 135 Ibid. 136 T123.10-17. 137 T123.18-29. 138 T124. 139 T125.3-5. 140 T125.9-10. -- 14 of 50 -- [2025] SADC 69 13 before [ZH] moved to [LH]’s house.141 Once [ZH] disclosed the incident to [LH], [LH] then suggested that the complainant had cheated on him with the accused.142 [ZH] did not fabricate that the accused raped her.143 42 [ZH] did not cut ties completely with the accused upon moving out.144 The complainant spent time alone with the accused after the incident. The accused would pick up [ZH] from her construction course from time to time.145 The accused would then drive her home, which occurred a handful of times.146 There was no one else available to drive [ZH] home at the time.147 [ZH] and the accused would contact each other via Facebook Messenger after the incident.148 [ZH] messaged the accused on a few occasions and initiated conversations.149 43 [ZH] attempted to create a narrative that her and the accused were still friends, and this was the reason why [ZH] would contact the accused via social media and spend time with the accused in person.150 The accused drove the complainant to KFC on one occasion. [ZH] disclosed that the accused sexually assaulted her on this occasion.151 [ZH] gave evidence that unless it was to take the complainant back from the construction course, [ZH] did not contact the accused to drive anywhere else.152 [ZH] did attend the accused’s home to check on the accused’s dog at the time.153 Exhibit D3 – Facebook Messenger communications 44 [ZH] was taken through the various Facebook messages between [ZH] and the accused. The complainant confirmed the date of the messages.154 On page 3, the message [ZH] sent read ‘I’m on my way’. This message related to a time when the accused travelled to collect cannabis.155 There were also messages related to [ZH]’s younger sister’s party when the complainant again requested a lift from the accused.156 [ZH] had no one else that could drive her to her sister’s birthday, therefore, the complainant contacted the accused.157 On page 6 [ZH] discussed arrangements in relation to attending the party with the accused.158 141 T125.18-26. 142 T126.35-38. 143 T127.13-17. 144 T127.21-25. 145 T127.43-38. 146 T128.17-20. 147 T128. 148 T129. 149 Ibid. 150 T129-130. 151 T132.22-26. 152 T132.24-26. 153 T132.31-34. 154 T134. 155 T135. 156 T135.31-38. 157 T136.4-8. 158 T136.22-30. -- 15 of 50 -- [2025] SADC 69 14 45 On page 7 there were further conversations between the complainant and the accused regarding cannabis.159 46 On page 8 [ZH] asked the accused about the movie 'Fear and Loathing in Las Vegas'. [ZH] stated that it was easier to ask the accused rather than search google at the time.160 On page 8 there was also reference to [ZH] collecting her bed from the accused’s property. However, [ZH] never attended the premises for the purposes of taking the bed.161 47 On page 10 there were text messages regarding [ZH] feeding the accused’s dog.162 There are further text messages in relation to [ZH] leaving cannabis for the accused. [ZH] prepared the cannabis only for herself at the time but there was some leftover cannabis that the accused could have used rather than preparing it for both.163 [ZH] felt weird in relation to smoking cannabis and not disclosing to the accused that there was some left over. Therefore, [ZH] messaged the accused.164 The accused was the only one who could provide [ZH] cigarettes at this time.165 48 In cross-examination [ZH] was taken to various references of her requesting transport from the accused.166 The accused was the only person who could drive the complainant at the time. 167 [ZH] sent the accused a message ‘are you still suffering’. [ZH] confirmed this was in reference to the accused’s wrist and that [LH] requested that the complainant send this message.168 Argument with accused 49 There was a time after [ZH] moved out of the accused’s house but before the incident was disclosed to [LH] that the complainant and the accused had an argument at the accused’s house. The argument was in respect to the complainant washing her hands during COVID.169 The accused was particular about hygiene during this period.170 [ZH] attempted to have a glass of water and the accused grabbed the complainant’s arm and the glass then dropped. [ZH] then threw the accused against the wall to prevent the accused from touching her.171 [ZH] would attend the accused’s house whenever the complainant desired after the incident.172 159 T137.8-12. 160 T137.17-23. 161 T139.19-21. 162 T140. 163 T141. 164 Ibid. 165 T141.30-38. 166 T142. 167 T142.19-30. 168 T143.29-38. 169 T144. 170 T144.21-23. 171 T144.32-37. 172 T145. -- 16 of 50 -- [2025] SADC 69 15 [ZH] did not enter the accused’s bedroom and the accused did not keep cigarettes in the bedroom.173 Re-examination 50 [ZH] did not sleep over at the accused’s house after the incidents but before moving in with [LH].174 However, [ZH] may have slept at the accused’s house with her friend, [C], on the pull-out couch.175 51 [ZH] agreed that in her affidavit where [ZH] mentioned staying the night in her mum’s room was not in fact true.176 [ZH] had not read her earlier statements before talking to the police in August 2024.177 [ZH] was not aware that there was a deliberate lie in the earlier statement when speaking to police in August 2024.178 KFC incident 52 It was only the complainant and the accused in the drive through of the KFC and the accused lent over and put his hand on [ZH]’s thigh and said ‘I’ve got this’. [ZH] then ‘flipped out’ and attempted to leave the vehicle and threw the accused’s hand away.179 [ZH] left the vehicle and took the bus home.180 [MW] Examination-in-chief Background 53 [MW] is 42 years of age. Her daughter is the complainant, [ZH]. [MW] moved into the Davoren Park address where the accused resided in early 2020. The accused is her cousin. [MW]’s evidence regarding the living arrangements were consistent with the complainant. [MW] moved in with her two children.181 54 [MW] was in the process of re-building her relationship with the complainant when [MW] moved into the accused’s home.182 [MW] confirmed that the complainant slept in the loungeroom on the fold out couch.183 [MW] observed that the accused and the complainant had a sound relationship at the time. However, [MW] noticed a sudden change in their relationship. [MW] cannot recall what time of day or when this change occurred.184 [MW] spoke to both the complainant and 173 T146.1-12. 174 T146.13-19. 175 T146.20-24. 176 T148.5-15. 177 T149.3-9. 178 T149.10-14. 179 T147.33-38. 180 T148.1-4. 181 T156. 182 T157. 183 T158.1-8. 184 T158. -- 17 of 50 -- [2025] SADC 69 16 the accused as to why their relationship had diminished. Both did not speak about why their relationship diminished at the time.185 Davoren Park address 55 [MW] moved out of the Davoren Park address in late 2020 due to an argument with the accused, where the accused alleged that [MW] had been consuming drugs.186 [MW] stayed in a hotel for two weeks before moving in with her uncle.187 Phone call with complainant 56 [MW] was living at Farrell Flat when the complainant called her.188 [MW] believed the complainant was living with her partner, [LH], at the time. [MW] could not remember the exact words of the complainant as it was an emotional time for her.189 [MW] confirmed that the complainant told her that the accused had raped her.190 [MW] stated that the complainant disclosed that it happened in her sleep, and [MW] told the complainant not to tell her anymore because [MW] could not cope with such disclosures.191 [MW] could not remember exactly what was said.192 After the phone call [MW] paced around the room and then went for an 8- hour walk.193 [MW] knew the duration of the walk through GPS. Message to accused 57 [MW] messaged the accused 'A minor and my baby'. [MW] further messaged the accused: 'how could you do this, how could you fuck my baby? How could you fuck her in her sleep, in her sleep?', 'This is not consenting’, ‘this is not consent, this is not okay’.194 The messages were sent via Facebook Messenger. [MW] could not locate/retrieve the messages.195 The accused replied with words to the effect of ‘it was a very black time for his soul and that he was very sorry’.196 [MW] replied with 'I don't think an apology will cut it. I don't think it will cut it this time, and I don't think I'm the person you should be apologising to'.197 58 [MW] had further contact with the accused when attempting to retrieve her belongings from the accused’s home after [MW] moved out.198 185 T159. 186 T159. 187 T159.22-29. 188 T160.5. 189 T160.15-19. 190 T160.20-22. 191 T160.24-26. 192 T160.31-35. 193 T161. 194 T161.16-19. 195 T162.1-6. 196 T162.11-12. 197 T162.18-20. 198 T162.25-28. -- 18 of 50 -- [2025] SADC 69 17 Cigarettes 59 [MW] believed that the accused’s cigarettes were kept on a bookcase in the lounge room or on the TV cabinet next to the TV in the lounge room.199 Cross-examination Cigarettes 60 [MW] did not know if the accused also kept cigarettes in his room.200 Davoren Park 61 At the time of moving into the address, [MW] was seeking permanent accommodation.201 [MW] had been looking for a house for some time and the opportunity arose for her to move into the accused’s residence.202 [MW] confirmed the living arrangements in cross-examination, but could not recall the dates of when her family moved in and then subsequently left the accused’s property.203 62 After leaving the accused’s home, [MW] resided at Scotty's Hotel Motel in Adelaide. Whilst there, [MW] fell ill and called her mother. Her mother did not wish to have the family stay with her. [MW] then called her uncle who allowed them to stay for a number of months before finding accommodation at Farrell Flat.204 Affidavits 63 [MW] met with Detective Richter and provided a statement, confirming the contents as being truthful.205 [MW] provided her statement over the phone and then the statement was sent to Burra Police Station. [MW] gave evidence that the date on paragraph 1 of her affidavit may be a mistake.206 Relationship with accused 64 [MW] and the accused were ‘really, really close, he was my best friend, the person I trusted most in this whole world’. [MW] continued ‘Later, in moving with him, I started being accused of taking drugs because I got sick and because I was sleeping during the day. I was being accused of taking drugs and then I left.’ [MW] confirmed they had an argument about this, which caused the witness to leave the accused’s home.207 199 T166.21-23. 200 T166.30-24. 201 T166. 202 T167. 203 T168. 204 T173. 205 T169. 206 T171.3-6. 207 T175.31-37. -- 19 of 50 -- [2025] SADC 69 18 65 The accused had strict house rules when [MW] lived with the accused.208 Observations of complainant 66 [MW] believed that the complainant lived at the address for approximately a month.209 [MW] could not say whether the complainant was in a relationship at the time.210 [MW] did not disclose behaviour that suggested that the complainant was in a relationship with [LH] at the time.211 [MW] did not know which bedroom the complainant lived in when [ZH] lived with [LH].212 67 [MW] had lived with the complainant since 10 April 2024. [MW] knew this as it was detailed in her calendar.213 68 [MW] did not make any notes of the conversation with the complainant over the phone.214 [MW] had not spoken about the case with the complainant besides the dates of the trial.215 [MW] remembered little in relation to the questions that Detective Richter asked.216 [MW] did not include in her statements: ‘How could you fuck my baby in her sleep’ as [MW] did not believe it was relevant at the time.217 [MW] was emotional at the time of speaking to the prosecution team.218 [MW] was asked to provide information immediately before the commencement of her evidence regarding the topic of the messages that were exchanged with the accused.219 Re-examination 69 [MW] was given a direction from Detective Richter to not talk to the complainant about the case. [MW] followed this direction.220 Detective Aaron Richter Examination-in-chief Background 70 Detective Richter is the investigating officer in this matter. The Detective took a number of statements from the complainant as well as [MW].221 208 T176. 209 T178. 210 Ibid. 211 T178.34-36. 212 T179. 213 T179.29-24. 214 T180.7-11. 215 T180. 216 T181. 217 T183. 218 T185. 219 T185.26-37. 220 T188. 221 T191. -- 20 of 50 -- [2025] SADC 69 19 Affidavits 71 Detective Richter sent the statement of [MW] to Burra Police Station after speaking to her on the phone.222 The witness confirmed his usual practice generally was to ask open questions, such as ‘what happened’ and ‘what she remembered happening’. The Detective would then ask the person to elaborate on their answers.223 The witness would ask questions such as 'Can you give me more detail about that?' or 'What else do you remember about it?'.224 The Detective believed that [MW] had either lost her phone or it was stolen and had to open a new Facebook account. Therefore, [MW] did not have the previous messages.225 Detective Richter would have been interested in the contents of these messages if they were available. 72 Detective Richter was present for a conversation that occurred whereby [MW] was questioned regarding the messages.226 The witness documented this conversation through a handwritten statement which was later signed in an affidavit dated 24 September 2024.227 Detective Richter described [MW]’s emotional state as ‘Rapid, she spoke very quickly and that's why the notes I took were quite - dot points, if you like, just real quick ones’. [MW] was worked up and had a lot to say in a short period of time.228 Cross-examination Background 73 The Detective had been a police officer for the past 20 years. The witness had been a detective for 12 years and had been involved in investigating multiple matters including sexual offences. Statement taking practices 74 Detective Richter confirmed the various practices that are implemented when interviewing a complainant in a sex offence case.229 The Detective generally reminded the person at the start of any interview that it is an offence to lie in an affidavit.230 Detective Richter would also make it plain to the person that they can amend their affidavits and would say words to the effect of 'Let me know if there's anything you want to change or amend'. Detective Richter was trained as a police officer and adopted the usual practices as trained.231 Colleagues would behave in accordance with their training when taking an oath or affirmation.232 222 T192. 223 T193.30-37. 224 Ibid. 225 T194.7-10. 226 T194.20-26. 227 T194.27-38. 228 T195.8-11. 229 T197.17-22. 230 T198.33-36. 231 T199.17-36. 232 T200. -- 21 of 50 -- [2025] SADC 69 20 75 Detective Richter did not have a clear memory of the original conversation he had with [MW].233 Detective Richter did not believe there was anything in his conversations with [MW] where these general practices were not employed.234 76 Regarding paragraph 7 of [MW]’s statement from 22 March 2023, Detective Richter believed he would have stated 'What happened once [ZH] told you, what did you do after [ZH] told you that?'.235 The witness captured the entirety that was mentioned by [MW].236 Detective Richter would have said 'I might need to contact you in the future'.237 Re-examination 77 The Detective was hopeful that the Facebook messages could be retrieved between [MW] and the accused.238 The witness agreed that it was preferable to obtain the actual messages rather than to rely on [MW]’s memory.239 Defence case 78 Defence counsel called one witness who was Professor Jason White. Professor White’s qualifications and experience to proffer the opinion’s expressed were not challenged. I have regard to his expertise insofar as whether I accept or reject any opinion evidence however before doing so I must consider the person’s qualifications, whether their opinion is based on a fact I accept, whether the opinion is in dispute and whether it fits with any other evidence that I have heard and accepted on that topic. Professor Jason White Examination-in-chief Background 79 Both counsel accepted that Professor White is an expert in respect to the topic of the effects of cannabis.240 Professor White had completed research on the effects of cannabis.241 Effects of cannabis 80 Professor White gave evidence that cannabis initially can produce an elevation of mood, people may be happier and laugh a little more than usual. The major effect was feelings of relaxation. A person may actually become drowsy during the course of experiencing cannabis effects.242 Both of those effects may be 233 T201.1-3. 234 T201.4-8. 235 T204.32-37. 236 T205. 237 T205.30-33. 238 T206.10-14. 239 T206.15-19. 240 T211. 241 Ibid. 242 T211.36-38. -- 22 of 50 -- [2025] SADC 69 21 less pronounced in people who use the drug frequently. Frequent users may still experience some degree of relaxation but may not experience in particular an initial elevation of mood.243 Cannabis produces a range of other effects including increased appetite, produce dizziness, drowsiness, impairment in movement, a reduced clarity of perception, reduced ability to concentrate on events and general cognitive functioning and decision-making.244 Initial effects 81 The effects of cannabis, depending on the amount smoked, usually lasts for approximately 4 to 6 hours. Ordinarily the effect commences very soon within minutes after smoking the drug.245 82 Professor White gave evidence that there can be impairment of memory in terms of recall within the first 4 to 6 hours of smoking the drug. For example, a person’s ability to recall faces may be impaired when they are under the influence of cannabis. There is also evidence from laboratory studies of false memories where persons may believe they have seen something but in fact they have not. These are typically laboratory studies where people are recalling lists of words.246 83 Professor White gave evidence that some reduced clarity of perception also occurs initially when consuming cannabis. There can be more pronounced effects on perception, including hallucinations, which generally only occur with very high cannabis doses. However, this is not necessarily a common experience from cannabis use but is nonetheless possible.247 False memory 84 False memory is when a person believes something has occurred when in fact it has not occurred. In the case of these studies, the person is saying 'I was shown that word previously', but in fact that did not occur, and is false.248 False memory would also encompass not only what persons see but what they hear.249 Professor White emphasised that the laboratory studies are limited to very simple tests such as being presented a word previously not seen. The Professor opined that studies indicate that there is a tendency for false memory or false recognition to occur when under the influence of cannabis.250 Long-term effects 85 Long-term cannabis users, that extends beyond the period of time when under the influence of the drug, can experience similar false memory effects. There are some residual cognitive effects on those persons and one of those effects is an 243 T212.1-20. 244 T212.1-20. 245 T212.31-34. 246 T213.1-11. 247 T216.11-16. 248 T213.14-17. 249 T213.26-30. 250 T213,33-38, -- 23 of 50 -- [2025] SADC 69 22 increase in false memory. Professor White noted that the studies demonstrate that there is a residual effect from long-term use as well as an acute effect from a single occasion of use.251 86 Professor White gave evidence that if a person had reported recognising something as happening that did not in fact occur, then you presume that perhaps later they would still think that that had occurred, unless they had some reason to think otherwise.252 87 Professor White noted that there was no evidence for long-term effects separate from the effects that occur when a person is under the influence of cannabis in terms of perception.253 Hallucinations and long-term memory 88 Professor White could only give evidence in a general sense in relation to drug-induced hallucinations, and that very often the person, once they are no longer under the influence of the drug, will clearly recognise that it was a hallucination. However, there are occasions when a person's beliefs may continue, beliefs acquired when they were hallucinating, particularly if they experience psychotic effects, that they may later have trouble differentiating those from reality.254 Quantities of cannabis use 89 Professor White opined that a low amount of cannabis use would be occasional use, once a week or less. A moderate amount would be someone who smokes the drug perhaps several days or evenings in a week. A higher amount are people who smoke the drug every day or nearly every day, and typically multiple times during each of those days of use.255 There is not an obvious difference between the effects of cannabis on males and females.256 A 13-14 year old smoking 10 cones per day is considered high level use.257 Professor White’s experience in respect of cannabis use is that persons who report smoking at young ages, may not be smoking up to 10 cones per day.258 Professor White confirmed that 2.5 grams per day would be a large amount.259 90 Cones vary in size. A third to half a gram was common, although some people put less in each cone. If someone were to take a third of a gram in each cone, then this would be approximately 8-9 cones to reach 2.5 grams per day. If the amount was a quarter, then it would be approximately 11 a day.260 Persons who use this 251 T214.6-17. 252 T215. 253 T216.21-24. 254 T217.1-9. 255 T217.15-20. 256 T217.21-24. 257 T217.25-29. 258 T217.31-36. 259 T217.1-3. 260 T218.11-16. -- 24 of 50 -- [2025] SADC 69 23 amount of cannabis may experience long-term effects.261 Hallucinations do not generally occur when a person is not under the influence of its effects unless they are having a psychotic reaction.262 Effects of cannabis on adults and children 91 Professor White gave evidence that there is not a particular difference in its effects between adults and children. However, there is a difference in brain development in adults compared to children, specifically related to cognitive functioning. Long-term cannabis use has been shown to impair those functions. There can be impairment in the brain that is responsible for those functions in adults who have been long-term cannabis users.263 Professor White opined that frontal lobe and executive functioning affects can persist certainly for the first few weeks after ceasing cannabis use and to some degree even beyond that period.264 Complainant use 92 There is some laboratory-based research that suggests that false memory is more likely in people with a similar cannabis use history as the complainant.265 The witness confirmed that false memories could arise at times when the person was not under the influence of cannabis, as there are laboratory studies that concerns persons who are not currently under the influence of cannabis but have had a cannabis use history.266 Cross-examination 93 Professor White was provided with a number of materials for the purpose of preparing a report including the Information, Prosecution Case Statement, affidavit of [ZH], affidavit of [MW], screenshots of messages from 9 to 11 July 2021 and also a list of medications prescribed for [W, JM].267 The witness was not asked directly to comment on the effects of cannabis on the complainant. Laboratory studies 94 Professor White confirmed that the laboratory studies were confined to scenarios of testing the reliability of recall. It is an extrapolation to take the laboratory study from such a setting to a real-life scenario where a person may falsely, honestly or mistakenly report experiences falsely.268 261 T219.1-7. 262 T219.8-12. 263 T219.23-37. 264 T220.1-7. 265 T221. 266 T221.20-26. 267 T221.34-38. 268 T221.17-21. -- 25 of 50 -- [2025] SADC 69 24 95 Professor White was not aware of any evidence of cannabis users, whether long-term or otherwise, hallucinating a highly significant event, such as an incident of non-consensual sexual intercourse or rape.269 Extrapolation from laboratory studies 96 Professor White gave evidence that it was important to firstly consider what is being thought of as false memory. If simply finding that the person was incorrect about when something occurred or exactly what the circumstance was and falsely remembers that it was in this room rather than that room, these are events that occur for everybody at some point in time. There is some reasonable probability that that can happen, and can conclude that someone with the complainant’s history of cannabis use, that it is more likely to occur.270 Contrastingly, if you are assessing false memory as a total event that did not occur where a person described a complex event with a significant duration, then in everyday life, the likelihood of such a false memory was low.271 It is more important to consider the actual event that is being recalled, falsely or otherwise.272 Hallucinations 97 Professor White was asked if there was any evidence that persons under the influence of cannabis would experience a sensation such as vaginal penetration when that event had not in fact occurred. The witness opined that there would be no evidence or studies unless, for some reason, there was a hallucinatory experience, but that would be unusual, and for it to be similar to a real-life experience would most likely only occur if the person had experienced a psychotic event induced by cannabis.273 98 Professor White did not believe it was possible to make a judgement regarding whether there was a hallucination or not.274 It is not necessarily possible just from viewing a person's description of events to say whether that was hallucinatory or delusional or more likely to be real.275 Professor White opined that there was no evidence to suggest the complainant was liable to experience hallucinations. Professor White gave evidence that we all experience falsely remembering an event, which might then form a cemented memory.276 If a person experienced a repeat occurrence of a similar event then it would tend to confirm the reality of what was remembered.277 The witness was not able to comment on 269 T222 1-5. 270 T223.21-31. 271 T223.21-38. 272 T223. 273 T224.32-37. 274 T225.7-18. 275 T225.15-18. 276 T225.35-38. 277 T226.1-6. -- 26 of 50 -- [2025] SADC 69 25 whether [ZH] was able to form, retain and report reliably accurate and actual experiences.278 Addresses of Counsel Prosecution closing address 99 The prosecution submitted that the ultimate question in this case is whether the credibility and reliability of the complainant can be accepted beyond reasonable doubt. Professor White’s evidence 100 The prosecution submitted that an important concession was made by Professor White about the limit to which one could safely or reasonably extrapolate from the laboratory studies which found a slight increase in false memories in those under the influence of cannabis when compared with sober persons in ordinary life.279 Therefore, to extrapolate from laboratory studies of recall to real-life events has its limitations. 101 It was accepted by the prosecution that the complainant’s use of cannabis was at the higher end of the scale.280 The prosecution highlighted that the complainant was not under the influence of cannabis at the time of these events and, given how candid and forthright [ZH] was regarding her cannabis usage, that the complainant’s evidence can be accepted.281 The prosecution submitted that at the relevant time, [ZH] was an experienced cannabis user. Therefore, [ZH] would be aware of the effects and if under the influence at the time of the incidents. There was also no indication that the complainant was having a psychotic episode based on the evidence of Professor White.282 The evidence as a whole, including that led on the defence case from Professor White, does not permit a reasonable possibility that the complainant hallucinated the experiences described.283 Chronology 102 The complainant and [LH] started dating or seeing each other around New Year's Eve 2019. The complainant's mother, [MW], moved into the accused's home in Davoren Park in early 2020. [MW] was willing to embrace her inability to recall dates and timelines. Thus, a degree of caution needs to be exercised in an assessment of this particular aspect of [MW]’s evidence. 103 The complainant joined her mother and young siblings in the property around April or May 2020 and stayed there for a total of three months, eventually leaving to move in with [LH] in around June or July of 2020.284 The complainant's mother 278 T226.7-12. 279 T234.7-15. 280 T234.28. 281 T234.31-35. 282 T235.35-38. 283 T236. 284 T238.4-8. -- 27 of 50 -- [2025] SADC 69 26 stated that the complainant moved into the house a couple of months after her arrival.285 104 It was during the time that the complainant was living with the accused, her mother and the two young siblings, that the alleged incidents are said to have occurred. These incidents occurred a couple of weeks after [ZH] had moved in.286 After the three nights which constitute the alleged offending, the complainant spent between about a week and a month at the house before moving out. 105 The prosecution submitted that throughout the evidence, there was nothing which might provide a motive for the complainant to fabricate the allegations and for the complainant's mother to fabricate her recollections of the messages that then followed.287 The prosecution acknowledged that an accused does not have to come up with a reason why the complainant might lie. Equally, when a motive to lie might be advanced by defence, then it is necessary to test that against the evidence and whether it makes sense applying common sense and experience.288 Complaint phone call 106 After the complaint that was made by the complainant to [MW], [MW] went on an 8 hour long walk, then contacted the accused. The prosecution submitted that [MW]’s emotion when giving evidence was genuinely raw and consistent.289 Demeanour of [MW] 107 The prosecution submitted that the demeanour of [MW] was entirely consistent with the content of the evidence of the witnesses and the circumstances in which these details were first disclosed and further supports the credibility of the witnesses in that respect.290 The prosecution submitted that [MW] was a compelling witness. [ZH]’s evidence 108 The prosecution effectively conceded two inconsistencies. The first is the admitted lie in [ZH]’s affidavit dated 15 July 2021, about remaining in [MW]’s bedroom following the third incident, as opposed to returning to the lounge room once [ZH] had heard the accused had gone to bed. The second is not an outright lie, but rather an omission to disclosing cannabis use in the affidavits, a matter which [ZH] acknowledged was relevant, but deliberately omitted.291 The prosecution submitted that these issues were readily accepted by the complainant. Mr Williams SC asserted the manner in which [ZH] accepted, explained, indeed genuinely and captivatingly apologised for the confusion caused, ultimately 285 T238.13-15. 286 T238.26-28. 287 T239.29-35. 288 T240. 289 T241. 290 T243. 291 T243.28-38. -- 28 of 50 -- [2025] SADC 69 27 enhanced, rather than adversely impacted upon the complainant’s credibility.292 It was submitted that when [ZH] gave her first statement, [ZH] was a traumatised 16-year-old who wanted to be believed, but did not want to have police involved. [ZH] felt forced by [LH] to alert police and was scared at the time.293 109 Mr Williams SC submitted that the complainant’s lies do not undermine her credibility. In fact, the way in which [ZH] came clean and explained the reasons, ultimately supports her credibility about the acts. [ZH] is no longer a 16-year-old. 110 The prosecution submitted the accused was the only male figure in the complainant’s life. The complainant trusted the accused, her best friend. Similar sentiments were expressed by the complainant’s mother. That level of trust, the value that these individuals placed on such a fragile family relationship at the time that these events occurred, explained why a complainant, who was raped on three consecutive occasions by her trusted cousin, would nevertheless continue to expose herself in vulnerable positions and act as if nothing had occurred.294 111 The prosecution submitted that a single rape would have achieved the effect that it might be designed to have if, for some reason or another, the complainant was motivated to lie. It is the prima facie implausible aspects of the allegations overall which give them such force and support [ZH]’s credibility.295 112 The prosecution did not seek to elevate that the affection and complimentary remarks amount to specific sexual attraction likely to be acted upon. Rather, it is an element of the relationship which not only assists to explain how the offending occurred, but how and why the complainant responded by attempting to ignore it, and that included supporting her explanation for not complaining to her mother at an earlier time.296 Apology message 113 Mr Williams submitted that the apology message outlined in Exhibit P2 was meaningful, remorseful and one might expect at the time, a genuine apology to some very serious actions as only actions that are serious carry the possibility of serious consequences.297 The fact of the message and the language used supports not only the credibility of the complainant, but also [MW]. 114 [MW] said to the accused ‘I don't think an apology will cut it. I don't think it will cut it this time and I don't think I'm the person you should be apologising to'. It was submitted that this fits perfectly with the fact of an apology and the level to which remorse was expressed.298 It is not challenged that this was a message sent 292 T244.2-6. 293 T126. 294 T247. 295 T248. 296 T249. 297 T250.17-22. 298 T250.26-32. -- 29 of 50 -- [2025] SADC 69 28 by the accused, indeed this is confirmed by Exhibit P2, which illustrated earlier messages and consistently with the prosecution case, showed no messages on the day that provide any context.299 115 The fact that the accused in this message contemplated the need to accept the reality that [ZH] may 'decide to do something', in response to the actions about which he was apologetic is highly significant and fits with the evidence of [MW]. It also supported the complainant's evidence by corroborating or at least supporting her credibility in the matter. Ultimate submission 116 If the Court agrees that the complainant was an impressive, credible and reliable witness, taking into account other evidence which supports her, then the prosecution have satisfied beyond reasonable doubt that each of the incidents in fact occurred in the way that the complainant described and convictions should follow.300 Defence counsel closing address 117 Ultimately defence counsel submitted that the evidence was not sufficient to prove beyond reasonable doubt that any unlawful sexual incident occurred to [ZH] and that it happened in the way it is said to have occurred.301 Forensic disadvantage 118 Mr Marcus submitted that there is a forensic disadvantage due to [LH] passing away.302 The prosecution noted that no statement was ever taken from [LH] or [W, JM]. Therefore, there is no evidence as to what [LH] would have asserted. This not only relates to the circumstances of the complaint, but also the circumstances under which [ZH] left [W, JM]'s household on or about somewhere in early to mid-2020.303 Complainant’s evidence Common sense 119 Mr Marcus submitted that [ZH]'s evidence, when one considers the logistics and physicality of how it is that the complainant said that the offending occurred, are an affront to common sense. It is not believable that it took place in the way described.304 299 T250.34-38. 300 T251.21-26. 301 T253. 302 T254. 303 T254.19-26. 304 T254.32-38. -- 30 of 50 -- [2025] SADC 69 29 Clothing 120 On the first night, [ZH] was wearing shorts and underpants. On the second night [ZH] was wearing trackpants and underpants. On the third night the complainant had wrapped herself in a blanket and it was her intention to sleep this way.305 Notwithstanding this account, on all three occasions [ZH] was awoken by the accused and awoken at the point where his penis was in her vagina, the accused was on top of her, her pants were down and the accused’s penis was moving in and out of her vagina.306 [ZH] was not awoken while the blanket was being removed, her clothing being removed, the accused climbing onto her whilst he attempted to insert his penis into her vagina. Instead, the point [ZH] has awoken was after all of this occurred.307 Second & third incidents 121 Mr Marcus drew on the second and third occasions. Importantly, [MW] stated her trackpants had tight elastic at the waist, but were baggy in the legs.308 This goes to the improbability of the second and third incident.309 To think that a person who not only slept in that position, but who was specifically aware and paying attention to the potential of being interfered with whilst they are sleeping, and the complainant was only awoken at the point when the rape was well and truly underway, was simply not believable.310 122 Further, the defence submitted that to conduct such a brazen act and then not have any security against it being reported, is illogical.311 [ZH] attended the accused’s house after the alleged incidents are said to have occurred, in the course of her studies, the following year. The complainant accepted that her and the accused were alone because [ZH] relied on the accused for a lift and 'couldn't be fucked catching the bus’ as outlined in the Facebook Messenger messages.312 [ZH] also enquired with the accused whether he had cannabis available and to take his cigarettes. [ZH] sent the accused jokes and initiated contact with the accused via Facebook Messenger after the alleged offending was said to have occurred. Defence counsel submitted that this type of behaviour was not consistent with someone who had been raped.313 Reliability 123 Mr Marcus submitted that [ZH] from a very young age was consuming what Professor White opined was a very high quantity of cannabis. Defence counsel asserted that the difficulty was what evidence can be accepted, against delineating 305 T255. 306 T255. 307 T255. 21-27. 308 T256. 309 Ibid. 310 T256.32-38. 311 T258.6-9. 312 T259.34-38. 313 T260. -- 31 of 50 -- [2025] SADC 69 30 between the explanation that [ZH] supressed the memory and a subconscious reconstruction of what [ZH] wants to think happened.314 Professor White gave evidence that it was unlikely that a hallucination of this nature occurred when not under the effects directly of cannabis, but did not go as far to rule out the possibility.315 124 Mr Marcus submitted that there was a very real risk in this case of being misled by the issues with [ZH]'s reliability due to her consumption of cannabis, as well as the inconsistencies in her evidence.316 125 [ZH] recalled during the first instance of sexual abuse, that the accused did not in fact put his hand on her back or head but placed his hands on her hips. [ZH] said 'I've said that in my statement. That's actually wrong'. To have made an error such as this, in Mr Marcus’s submission, reflects very poorly on her reliability.317 126 Another example was in respect to the first incident where [ZH] froze in place and did not physically do anything to resist what was occurring. However, [ZH] agreed in her statement that she wriggled.318 Mr Marcus submitted that the accumulated totality of the inconsistencies reach a critical mass. It was submitted this must mean that the alleged offending cannot be proved beyond reasonable doubt.319 Credibility Complainant’s evidence 127 Exhibit D3 illustrated further contact via Facebook Messenger between [ZH] and the accused after the alleged conduct. Mr Marcus submitted that on many occasions [ZH] was the initiator of the contact and it was contact that can be described as unnecessary.320 128 Regarding when [ZH] provided a demonstration of sleeping on her side, Mr Marcus submitted that her explanation was disingenuous and was attempted to fix an error in her evidence.321 129 Defence counsel described the most important issue in respect of the complainants credibility; when [ZH] told a deliberate lie for the specific purpose of making her story more believable.322 [ZH] agreed that the reason for the lie was to present what was a more believable version of events.323 Mr Marcus submitted 314 T261.36-38. 315 T263.1-3. 316 T263.27-32. 317 T265.14-18. 318 T265.30-37. 319 T266. 320 T267.5-7. 321 T268.6-10. 322 T268.27-31. 323 T269.2-5. -- 32 of 50 -- [2025] SADC 69 31 such a piece of evidence simply cannot be accepted.324 Mr Marcus asserted this raises two issues; first is how does one believe anything else that the complainant said and second, how can one take any solace when the complainant stated ‘But don’t worry, that is the only time I’ve done it, trust me’.325 Defence counsel submitted that this lie was not volunteered and, under those circumstances, the suspicion over the rest of her evidence remained.326 130 [ZH] made a point of saying that the accused was the only positive male in her life when quite apparently there was at least one other male in her life at relevant time, namely [LH].327 [MW] evidence 131 Mr Marcus submitted that [MW]’s evidence turns on her credibility and reliability.328 It was submitted that it was not plausible that [MW] would fail to mention the specific details of the conversation had with the complainant to Detective Richter. 132 Detective Richter agreed that when speaking to [MW], the witness had already reported the accused for this offence and was their one and only suspect. Mr Marcus submitted for an investigator with Detective Richter’s experience, to have failed to ask [MW] 'What did you say to the accused that caused this to happen?' is just not believable in the circumstances.329 Whilst [MW] might not have appreciated the forensic significance of this conversation, Detective Richter would have, and would have asked [MW] those questions.330 133 Ultimately Mr Marcus suggested what happened was that [MW] told Detective Richter the truth of what the Facebook conversation was, and that was [MW] asked the accused what happened, and said it was a dark time for his soul and he was very sorry. Prior to her evidence, [MW] never mentioned the evidence that was proffered in relation to this topic.331 134 [MW]’s evidence in respect to detecting that something was not right between [ZH] and the accused, despite the fact [ZH]'s evidence was that steps were taken to hide that an incident had occurred, indicated a subconscious reconstruction of events.332 324 T269. 325 T269.30-36. 326 T271.6-11. 327 T272.34-37. 328 T274.5-14. 329 T276.33-36. 330 T277.10-13. 331 T277.32-38. 332 T279. -- 33 of 50 -- [2025] SADC 69 32 Apology message 135 Mr Marcus submitted that having regard to all the evidence, no conclusion can be precisely drawn to what the apology message specifically related to. Defence submitted that people apologise for reasons other than that they did something, whether they are keeping the peace, placating someone, taking an easy way out or making a problem go away.333 Therefore, no specific conclusion ought to be drawn from the apology message (Exhibit P2). KFC incident 136 The accused wrote in the Facebook messages (Exhibit D3) to [ZH] 'I'm going to KFC; do you want something?'. Defence counsel submitted that this was not logical to send a message to ask for someone's order if you are going to go and pick them up and take them to KFC yourself. Therefore, there was a clear disconnect. Consideration Section 34R direction 137 There was evidence before the Court that the accused used cannabis and used cannabis with the complainant from time to time. I remind myself that because the accused may have consumed cannabis from time to time and used cannabis in the company of the complainant, it would be wrong and unfair to reason that because he has used cannabis in these circumstances, he is the type of person that would have committed the charged offences. Plainly enough, I have not used this evidence in this way. 138 I have also not used the evidence of the KFC incident or the evidence of the complainant suggesting that the accused would call her ‘sweetheart’ and complimenting her outfits in any manner adverse to the accused. Forensic disadvantage 139 Whilst the requirement to direct on s 34CB of the EA does not apply to a trial by judge alone, the principle of forensic disadvantage remains. The question of forensic disadvantage pursuant to s 34CB of the EA was discussed by the Court of Criminal Appeal in R v Cassebohm,334 R v Maiolo (No 2),335 R v W, PK,336 and more recently in R v R, PA.337 140 Section 34CB is exclusively directed at the forensic disadvantage to the accused, and that disadvantage is not diluted by virtue of similar disadvantages to the prosecution witnesses. 333 T280.9-12. 334 (2011) 109 SASR 465. 335 (2013) 117 SASR 1. 336 [2016] SASCFC 5. 337 [2019] SASCFC 19. -- 34 of 50 -- [2025] SADC 69 33 141 In R v Cassebohm, Doyle CJ, relevantly said: I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. 142 In R v Maiolo (No 2), these factors result in a diminution of the accused’s ‘ability to effectively conduct the case including to cross-examine the complainant in a way that effectively casts doubt upon issues of credibility and/or reliability’. 143 I direct myself that in respect of all counts, the accused has been substantially forensically disadvantaged in terms of being able to effectively conduct his case. I will take into account that forensic disadvantage to the accused when I come to scrutinise the evidence of the prosecution, and to assess whether the prosecution has proved the objective elements of the relevant count against the accused. In this case, the forensic disadvantage extends to the matters identified by defence counsel during the closing address and referenced in paragraph [118] above. This specifically relates to the death of the initial complaint witness, [LH] and an inability to test and challenge the detail of and circumstances surrounding the initial complaint said to have been made, and the circumstances in which the complainant departed the accused’s residence. In addition, I accept the existence of a forensic disadvantage in accordance with that expressed in R v Maiolo (No 2), above. Complaint 144 The law governing the admission of the complaint is controlled by s 34M of the EA, which provides: 34M—Evidence relating to complaint in sexual cases (1) This section abolishes the common law relating to recent complaint in sexual cases. Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427 (2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. (3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. Examples— Evidence may be given by any person about— • when the complaint was made and to whom; • the content of the complaint; -- 35 of 50 -- [2025] SADC 69 34 • how the complaint was solicited; • why the complaint was made to a particular person at a particular time; • why the alleged victim did not make the complaint at an earlier time. (4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that— (a) it is admitted— (i) to inform the jury as to how the allegation first came to light; and (ii) as evidence of the degree of consistency of conduct of the alleged victim; and (b) it is not admitted as evidence of the truth of what was alleged; and (c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case. (5) It is not necessary that a particular form of words be used in giving the direction under subsection (4). (6) In this section— complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). 145 The initial complaint in this matter was made by the complainant to [LH]. The complainant stated in her evidence the first person she told was [LH] and that the disclosure occurred ‘years afterwards’, at the end of 2021. The disclosure took place during a conversation between the complainant and [LH] in the context of [LH] observing that the complainant and the accused seemed distant and did not communicate anymore. In evidence, the complainant described ‘giving in and telling [LH] that [the accused] had raped me’. No further detail was provided. 146 This complaint is admissible as the initial complaint as the complainant confirmed this was the first occasion that she had told anyone about the allegations and it is referable to the charged offending. I am satisfied that the disclosure complies with the statutory pre-requisites for admission pursuant to s 34M of the EA. 147 The prosecution contended that there was an elaboration of the initial complaint in the form of a subsequent conversation between the complainant and her mother, [MW]. This conversation between the complainant and her mother -- 36 of 50 -- [2025] SADC 69 35 took place shortly after the initial complaint to [LH] via telephone. At the urging of [LH], the complainant telephoned her mother and told her that the accused ‘had raped me, and like, she [MW] was there, and it was like three times, it wasn’t just the once and I didn’t go into detail’. 148 Admissibility of an elaboration of an initial complaint was discussed in R v Maiolo (No 3),338 where Peek J (Stanley J agreeing) stated: Against the background of the discussion above, I conclude that where an alleged victim of a sexual offence has provided information that constitutes an initial complaint admissible at trial, the admissibility of further information provided by the alleged victim is to be determined by reference to the following requirements. First, such information will only be taken to be “provided by way of elaboration of the initial complaint” within the meaning of s 34M(6) if the initial complaint and the further information provided are sufficiently connected together so as to be reasonably viewed as one complaint. There is a certain amount of flexibility here in that this conclusion will not necessarily be excluded by any particular matter such as the precise time between the first complaint and when the further information is later provided or the fact that such information is provided to a person other than the original complainee. Rather, the decision as to “sufficient connection” is to be made by reference to the all of the facts of the particular case; in making that decision, reference by analogy may be made to common law decisions such as Freeman, Corkin and others referred to above, provided always that primary regard is paid to the legislative intent in enacting s 34M. Second, information later provided by way of elaboration of the initial complaint may only be received as relevant if it is capable of rationally affecting the assessment of the probability that an allegation against the defendant of sexual offending is correct. Since s 34M(4) makes clear that evidence is not admitted under s 34M as evidence of the truth of what was alleged, such information may only be received if it is capable of rationally affecting the assessment of the credibility of the alleged victim. Again, this is a matter that must be assessed by reference to all of the facts of the particular case. [footnotes omitted] 149 A relevant summary of the evidence in this case as to the suggested elaboration reveals: • The relevant telephone call was made by the complainant to her mother shortly after the initial complaint to [LH]; • The initial complaint to [LH] consisted of a bare disclosure that the accused had raped the complainant; • The complainant disclosed further detail to her mother, namely that ‘[MW] was there and it had occurred ‘three times’’. 150 In my view, the complainant’s disclosure to [LH] and the subsequent telephone conversation between the complainant and her mother are sufficiently 338 [2014] SASCFC 89 [81]-[83]. -- 37 of 50 -- [2025] SADC 69 36 connected so as to be reasonably viewed as one complaint.339 Further, the additional detail provided to [MW] is capable of rationally affecting the assessment of the probability that an allegation against the defendant of sexual offending is correct. In these circumstances the conversation between the complainant and her mother and its contents are admissible as an elaboration of complaint and I will treat it as such. 151 The evidence of complaint is admitted to inform the Court as to how the allegation first came to light and is evidence of the degree of consistency of conduct of the complainant. I remind myself that there may be varied reasons why the complainant has made the complaint at a particular time to a particular person and that this evidence is not admitted as evidence of the truth of what was alleged. The suggested admission 152 Exhibit P2, a screenshot taken from Facebook Messenger communications, assumed prominence in this trial. It was not disputed that the accused sent the complainant the following message (‘the communication’), received by the complainant on Sunday 11 July 2021: I’m sorry for my actions [ZH]. I will accept whatever you decide to do. Please know I am very remorseful. 153 The communication was tendered as Exhibit P2 and part of that communication appears in Exhibit D3, the Facebook Messenger communications tendered by defence. That exhibit suggests that the communication was sent on 11 July 2021 at 10:19 am. 154 The prosecution initially submitted the communication amounts to an admission relevant to the charged conduct on the part of the accused. This submission was ultimately modified to the communication is capable of supporting the complainant’s credibility in accordance with Day v The Queen.340 The defence submits that the communication is of an ambiguous nature, such that it does not amount to an admission to any aspect of the charged conduct of the accused. 155 From a preliminary viewpoint, it has not been disputed that the accused sent the communication. I will proceed on the basis that the accused sent the message to the complainant on Sunday 11 July 2021. Given this finding, the primary question to be determined is whether, having regard to all relevant evidence, does the communication amount to evidence of a sexual interest on the part of the accused towards the complainant.341 156 On the prosecution case, the communication does not merely stand alone; its probative value is informed by evidence of the surrounding circumstances said to 339 R v England (2013) 116 SASR 589. 340 [2021] SASCA 38. 341 R v W, CT [2019] SASCFC 18. -- 38 of 50 -- [2025] SADC 69 37 precipitate the communication through the evidence of the mother of the complainant, [MW]. 157 The surrounding context arising from [MW]’s evidence is important. It is relevantly summarised as follows. • Following a phone conversation with the complainant, during which the complainant disclosed that she had been raped by the accused, [MW] proceeded to pace around the room that she was in and then went for an 8-hour walk. • [MW] then sent the accused, via Facebook Messenger, the following messages: ‘A minor and my baby’, ‘How could you do this, how could you fuck my baby? How could you fuck her in her sleep, in her sleep’; and ‘This is not consenting this is not okay’. • The accused then replied with words to the effect of ‘it was a very black time for [his] soul and that [he] was very sorry’. [MW] replied, ‘I don’t think an apology will cut it. I don’t think it will cut it this time, and I don’t think I’m the person you should be apologising to’.342 • These messages were not able to be retrieved by the witness or police. [MW] had no further contact with the accused. • In cross-examination, [MW] denied the proposition that the messages did not in fact occur. [MW] gave evidence that the reason why she did not mention the messages in her original statement to police was due to the fact that the witness did not think that the messages were important at the time.343 158 On the prosecution case, the communication was sent in the context of the accused being confronted by [MW] on the allegation of engaging in sexual activity with the complainant. 159 The complainant gave evidence that the communication was received after her disclosures to [LH] and [MW].344 I accept this evidence. 160 The unchallenged evidence of [MW] receiving, at the very least, agreed communications which led to the ‘black time for his soul’ communication from the accused345 provides evidence from which it can be inferred that the communication was sent with relative contemporaneity by the accused. It is unlikely that the accused sent the communication ‘out of the blue’ to the complainant. 342 T161-162. 343 T186. 344 T86.27-34. 345 Defence address T277.32-37. -- 39 of 50 -- [2025] SADC 69 38 161 Consideration then needs to be given to the defence criticisms of the evidence of [MW] on this particular aspect of [MW]’s evidence. 162 As I understand the argument advanced by defence, [MW] cannot be believed upon her evidence as to why she did not disclose the specific details of the Facebook communications confronting the accused at an earlier time. It was submitted by defence that the reality of the Facebook communications was that [MW] confronted the accused in general terms, namely that [MW] asked the accused what happened, prompting the response from the accused that it was a dark time for his soul and that he was very sorry. 163 It was submitted by defence that the purported recent invention of detail by [MW] as to the Facebook communications adversely impacted upon the credibility and reliability of [MW] and, further, that [MW]’s explanation for not previously disclosing this piece of evidence to Detective Richter is implausible. 164 I accept that the most important detail of [MW]’s evidence regarding the Facebook communications said to precipitate the communication from the accused was not disclosed prior to trial. It was a late revelation. The circumstances of the revelation were explored under cross-examination. 165 [MW] explained that she was and continues to be completely traumatised by the disclosures made to her by her daughter regarding the allegations. She remains reluctant to discuss what she has learnt about the allegations. I accept her explanation for not previously disclosing the detail of the Facebook communications prior to a proofing that took place during the trial was due to a combination of: • being emotionally overwhelmed at the time of the disclosure by her daughter of having been raped by the accused and the associated Facebook communications between herself and the accused on the topic; and • her being completely naïve as to the investigative process and that she ‘didn’t think that any of the information that I had was actual information and I didn’t think it was helpful at all’.346 166 On an assessment of the entirety of this aspect of the evidence of [MW] and Detective Richter, it is evident that [MW] believed that she could not provide direct, that is, eyewitness evidence as to the alleged offending itself, and any further detail she could provide over and above that initially provided to police was inconsequential. 167 I accept that the detail of the Facebook communications arose from previously undisclosed information on the evidence of [MW]. Any criticism also needs to be evaluated in the context of the apparent acceptance on the part of 346 T183.24-26. -- 40 of 50 -- [2025] SADC 69 39 defence that an aspect of [MW]’s recollection is correct in terms of the unchallenged statement proffered by the accused, where he acknowledged that it was a dark time for his soul and he was very sorry. This is consistent with the theme of the communications taking place. 168 With respect to [MW], she presented as an unsophisticated witness who was deeply affected by the subject matter she was being asked to recall. Without placing undue emphasis on her demeanour, it was readily apparent on an overall assessment of her evidence that she was doing her best to assist the Court with her recall of events. 169 Whilst there were aspects of her evidence that were unreliable in relation to chronology, notwithstanding this deficit in her evidence, I have no hesitation in accepting her evidence as to the Facebook Messenger communications with the accused in which she confronted the accused with the allegation of rape following the disclosure of this information from her daughter. Her authenticity in reliving the exchange with the accused, albeit via electronic means, was compelling. 170 The simplicity in her explanation for not previously disclosing this important information was equally compelling. In summary, I find that this evidence was unwillingly etched into the memory of the complainant’s mother and unexpectedly extracted when it became apparent (as part of the trial) that it was important. 171 In making this finding, I have regard to all of the evidence and the criticisms advanced by defence as to the evidence of [MW]. This includes the submission advanced by defence that [MW] had reflected upon other aspects of the evidence leading to a subconscious reconstruction of events generally adverse to the accused. 172 It follows that the communication was sent by the accused after being confronted with the allegations of having sexual intercourse with the complainant. 173 In Day v The Queen,347 the Court of Appeal (Kelly P, Lovell and Livesey JJA) considered the admissibility and use of a pretext call during which the defendant admitted to inappropriate conduct towards the complainant when confronted with allegations of sexual impropriety. The Court stated:348 A reading of the whole of the pretext call transcript demonstrates that the complainant was concerned to repeatedly put to the appellant that there had been inappropriate conduct by him and that it had included conduct of a sexual nature. At times, the appellant simply avoided the complainant’s questions and, at other times, he was either silent or prepared to acknowledge that his conduct was inappropriate. A close reading of the pretext call transcript also demonstrates that this occurred on more than two occasions and, at least arguably, was capable of comprising an admission about two or more unlawful sexual acts 347 [2021] SASCA 38. 348 Ibid at [48]-[51]. -- 41 of 50 -- [2025] SADC 69 40 toward the complainant in the course of a relationship within the meaning of s 50(1) of the Criminal Law Consolidation Act 1935 (SA). Clearly, however, the evidence gave rise to what is sometimes described as an implied admission in the sense that the appellant’s statements about his contact with the complainant and his love and regard for her (however misplaced) demonstrated a sexual interest in the complainant which was capable of corroborating or at least supporting her account, even if it did not precisely accord with the allegations she made concerning the particular sexual activity that she said had occurred. This kind of evidence has long been accepted as being capable of corroborating or at least supporting the credibility of a complainant. In all of these circumstances, there can be no complaint about the admission of the pretext call into evidence. At the least, it contained what may be described as “implied” admissions. [footnote omitted] [my emphasis] 174 In considering first, the admissibility of this evidence and second, what if any weight is to be afforded to it, I have given careful consideration to the evidence and submissions advanced by the prosecution and defence. The unchallenged evidence is that the accused sent the communication. I find that the communication was sent by the accused to the complainant after being confronted by [MW] as discussed above. It is an admission by the accused to having a sexual attraction towards the complainant, although it cannot be attributed to any single one of the charged offences. Further, whilst the accused’s communication is an acknowledgment of sexual attraction towards the complainant, although it cannot be construed as extending to an admission as to any lack of consent. 175 The communication sent by the accused is a piece of evidence, capable of supporting the credibility of the complainant. It is evidence that the accused had a sexual attraction towards her.349 I propose to use the evidence in this way, and only in this way. The communication does not amount to an admission to any charged offence. Assessment of the complainant’s credibility and reliability 176 Whilst there was nothing in the demeanour of the complainant in the course of examination-in-chief or cross-examination which caused me any concern about her credibility or reliability, it is vital that demeanour and presentation not be given undue weight in an assessment of honesty and reliability. Any determination of those issues can only be made having regard to the whole of the evidence, the criticisms raised by defence in the course of the trial, and whether there is support for [ZH]’s evidence. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of the complainant’s evidence, it is trite to say that the prosecution case stands or falls on an acceptance of her evidence as to whether the sexual acts took place, beyond reasonable doubt.350 349 R v W, CT [2019] SASCFC 18 [40]-[41]. 350 Murray v The Queen (2002) 211 CLR 193 [57]. -- 42 of 50 -- [2025] SADC 69 41 Defence criticisms 177 As discussed, the prosecution case depends upon an acceptance of the honesty and accuracy of the evidence of the complainant beyond reasonable doubt. Particular care and scrutiny must be applied to an assessment of her evidence. During the course of submissions, a number of criticisms were made regarding the evidence of the complainant. I summarise the more prominent of those submissions here. It should be noted that whilst this is a summary of the more strident criticisms, I have taken the entirety of the submissions of defence counsel into account and afforded them due weight. The primary argument advanced by defence 178 The primary argument advanced by defence as to why the evidence of the complainant could not be accepted, arises from a proved lie as to [ZH] staying in the room in which her mother was sleeping after the third occasion of alleged rape. It was suggested that the complainant’s credibility is so fundamentally flawed as a consequence of this lie that the prosecution case could never succeed. 179 The complainant admitted to a prior inconsistent statement amounting to a lie relating to her behaviour in the aftermath of the third incident. The inconsistency and admitted lie arises from the complainant’s sworn affidavit of 15 July 2021, in which she stated that she stayed in her mother’s room for the entire night following the alleged rape. In evidence, [ZH] stated that she knew this statement was not true. Under cross-examination, the following exchange took place:351 Q So you agree that you told a lie in this statement. A Yes, I do. I am bringing it up now because I didn't want to lie about it. I want to tell the truth. I don't want to lie. I'm not lying. Like, I lied then and I'm trying to make it better. I'm trying to fix my mistake because I was once again like I was 16, 17 year old girl freaked the fuck out. I didn't know what to do and I want someone to believe me. 180 In submissions, defence counsel emphasised the point that this piece of evidence was demonstrative of a preparedness on the part of the complainant to knowingly and willingly lie in order to bolster her credibility on matters directly referable to the charged offending. 181 In my assessment of the key issue in this trial, namely the reliability and credibility of the complainant, I am acutely aware that this admitted lie on a matter directly relevant to the allegations requires very careful consideration as to the adverse impact of this lie upon the entirety of the complainant’s evidence. It is troubling that the complainant would be prepared to lie on such matters of importance. 351 T119.5-12. -- 43 of 50 -- [2025] SADC 69 42 182 Ultimately, this lie needs to be considered in the context off all of the evidence. This includes the entirety of the oral evidence, including the explanation proffered for the accepted lie, the exhibits, including the communication from the accused in Exhibit P2 and the complaint evidence. 183 Whilst this admitted lie reflects adversely upon the credibility of the complainant, having regard to the entirety of the evidence, I do not accept that the accepted lie is fatal to the prosecution case. The explanation for the lie, set out in paragraph [179] above, is understandable in the particular circumstances of this case. Whilst not fatal to the prosecution case, the admitted lie reinforces the need to scrutinise the evidence of the complainant with great care. I will return to an overall assessment as to the credibility of the complainant’s evidence in due course. Inherent implausibility of the repetition of sexual offending 184 The second significant argument advanced by defence counsel is the inherent implausibility of the complainant enduring the second and third episodes of alleged rape by repeatedly placing herself in the same position of vulnerability. Defence counsel submitted that it was inherently unlikely that the complainant would return to the couch where the initial rape is alleged to have occurred, taking minimal physical protective measures to guard against another attack and falling asleep with apparent ease despite the events of the first occasion of alleged rape. 185 It was submitted by defence that an overall assessment of the circumstances of the alleged offences should lead to the conclusion that the version of events proffered by the complainant is inherently improbable. 186 The complainant explained her lack of physical reaction or resistance as a consequence of the complete shock experienced by a 16 year old girl being vaginally penetrated by a trusted male figure in her life, under his roof, against the background of complex and fragile family relationships. 187 After each occasion of alleged rape, the complainant explained that she attempted to ‘act normal’, so as to not alert her family as to what had occurred. 188 The complainant also explained that she attempted to make it more difficult for the accused to repeat what had occurred on the first occasion. Again, against the background the complainant being a 16 year old girl in what could be seen to be environmentally difficult circumstances, the complainant depicted putting in place what she perceived to be physical protection in the form of additional clothing and bedding to guard against a repeat of the accused’s behaviour. 189 It was also submitted by defence that the complainant falling asleep on the second and third occasions to awake to an episode of penile/vaginal rape is illogical. -- 44 of 50 -- [2025] SADC 69 43 190 In order to assess these criticisms, it is necessary to assess the whole of the evidence. The surrounding circumstances in which the three charged incidents are alleged to have taken place are important in this case. The complainant was a child at the time of the alleged offending. The evidence reveals that at the relevant time, the accused was a male figure who she trusted. Following a period of upheaval within her family, the accused provided a roof over the heads of the complainant’s immediate family. Her family was reunited, a matter of some importance to the complainant. 191 It is clear that the complainant understood her mother, at least at the commencement of the family co-habitating at the Davoren Park address, had a good relationship with the accused. 192 Against that background, it is understandable why the complainant did not immediately take more strident measures to guard against a repetition of events following the first alleged rape. 193 She was young. She was confused. Her family circumstances militated against her taking stronger and potentially divisive action. She did what she thought she could in the circumstances. I do not accept that the complainant’s response, or lack of response to the alleged offending is implausible or adversely impacts upon an assessment of the credibility and reliability of the complainant. Physical implausibility 194 Defence submitted that the mechanics of how the offending is said to have occurred ‘are an affront to common sense’. It was suggested that on each occasion, for the complainant to be asleep on her stomach and to awake with the accused penetrating her vagina with his penis, is a version of events that cannot be accepted. This argument was based on the implausibility of the complainant remaining asleep whilst various items of clothing and bedding were being adjusted by the accused, prior to the act of penetration taking place. 195 In assessing this submission, it is important to consider the clothing being worn and the bedding arrangements. On the first occasion, the complainant was wearing shorts and underpants. On the second occasion, the complainant was wearing tracksuit pants and underpants. On the third occasion, the complainant was wearing tracksuit pants, underpants and when she fell asleep, she gave evidence that she specifically wrapped herself in a ‘cocoon-like’ manner in a blanket with the intention of sleeping that way. 196 The tracksuit pants were described as having tight elastic at the waist but were otherwise loose. 197 On each occasion, the complainant described being asleep, only waking when she became aware of the sensation of her vagina being penetrated. On each occasion, she reported the clothing being worn on her lower half being around her knees. -- 45 of 50 -- [2025] SADC 69 44 198 Defence submitted that this version of events ‘is simply not believable’. 199 This submission needs to be considered in the context of the evidence of the complainant that she was a heavy sleeper. Under cross-examination, the following exchange took place: 352 Q Could you hear other people moving about the house, stepping outside of this particular incident for a moment but were there times where you were sleeping when you were able to hear other people moving around the house. A I couldn't hear anyone while I was sleeping. I was sleeping. Only while I'm awake. Q Perhaps I will be specific about that. During times where you were on the bed intending to go to sleep, could you hear other people moving about the house. A Not unless it was like a big movement. Unless I am trying to listen to them or I'm physically awake, no. 200 The aspect of the complainant being a heavy sleeper was also explored as follows: 353 Q Am I right in assuming the reason why you pulled the blanket tight and holding onto it would be that if the blanket was moved that would attract your attention and potentially wake you up. A. No, I'm a heavy sleeper. Not much wakes me up unless it is a loud bang or something quite loud and prominent. I am a really heavy sleeper and I always have been so that wasn't why I put the blanket there. The blanket was there to protect myself and to make me feel more protected. 201 In assessing the submission advanced by defence, I have regard to the criticisms made in relation to this aspect of the complainant’s evidence. Whilst I accept that it may be difficult for the clothing being worn to have been re- positioned as described, without waking the complainant, I do not regard it as an impossibility. In making this assessment, I have regard to the unchallenged evidence of the complainant that she was a heavy sleeper. In all of the circumstances, I do not regard this aspect of the complainant’s evidence as being implausible or ‘an affront to common sense’. Cannabis use 202 It is not in dispute that the complainant was consuming a significant quantity of cannabis on a regular basis from a young age. As much was confirmed by the complainant herself and by Professor White, based upon the uncontested self- report from the complainant. Defence submitted that there is a very real risk of the Court being misled by issues arising from the complainant’s use of cannabis. 203 Whilst it may be that the complainant was a heavy user of cannabis throughout her adolescence, it is apparent having regard to the evidence of the 352 T98.10-21. 353 T113.19-28. -- 46 of 50 -- [2025] SADC 69 45 complainant and Professor White that this issue is of little, if any, moment in this case. This observation is made, in part, as a consequence of the unchallenged evidence of the complainant that she was not under the influence of cannabis at the time of the relevant incidents, together with the evidence of Professor White. 204 The effect of the evidence of Professor White is that cannabis use was unlikely to result in the complainant being detached from reality so as to imagine the episodes of alleged rape. Further, the overall assessment of Professor White was that cannabis use in the circumstances of this case was unlikely to have any substantial adverse input upon the ability of the complainant to accurately recall relevant events. 205 Professor White gave evidence regarding laboratory studies conducted into the potential impact of cannabis use upon false memory. The Professor also gave evidence that there is no evidence of long-term impact arising from cannabis consumption and false memory. 206 It was also submitted that the complainant’s consumption of cannabis had a significant deleterious impact on the functioning of the complainant. This was expressed in terms of being adversely impacted by the effects of the drug at the time of the alleged incidents of rape and the overall adverse impacts of significant cannabis consumption upon the reliability of the complainant’s evidence generally. 207 These criticisms are not supported by the evidence. Whilst the complainant admitted to regular and what could be considered to be heavy levels of cannabis consumption, particularly for her young age, this admitted consumption was unlikely to have had any material adverse impact upon the reliability of the complainant in that: 1. On all of the evidence, the complainant was unlikely to have been noticeably effected by her consumption of cannabis at the time of each alleged incident of rape; and 2. In the opinion of Professor White, which I accept, the complainant’s consumption of cannabis was unlikely to have produced any detachment from reality in terms of the complainant’s recall of the incidents giving rise to the charges. 208 Having regard to all of the evidence regarding the complainant’s use of and potential impact of cannabis upon her functioning, I find that this topic has no material impact upon an assessment of the primary issue in this case, namely the credibility and reliability of the complainant. Post-incident interaction between complainant and accused 209 The ongoing interaction between the complainant and accused in the aftermath of the incidents giving rise to the charges was brought into focus by defence. In effect, it was submitted that ongoing contact between the complainant -- 47 of 50 -- [2025] SADC 69 46 and the accused following three instances of alleged rape constituted conduct that was inconsistent with the allegations. 210 Emphasis was placed upon the expressed desire of the complainant to disassociate with the accused, which was in contrast with accepted ongoing contact with the accused. However, this needs to be assessed in the context of the words of the complainant referring to the charged conduct: ‘I wanted to ignore it and move on with my life’. 211 Relevantly, on the topic of post-incident conduct, the complainant stated in evidence-in-chief:354 Q. What's the next contact you had after telling your mum what had happened, what's the next contact you had from [the accused]. A. I believe at this stage we were still like talking here and there, just small conversations. I wouldn't go into any like deep conversations. I didn't - I did not want to talk to him. I didn't want to associate with him but I was still fighting with like keeping the whole family together. I didn't want to be the one that split the family up again, so. Q. So was there still some level of interaction between the two of you. A. Yeah. Q. And would you try to act normally. A. Yes. 212 In support of the submission that the ongoing contact between the complainant and the accused was inconsistent with the allegation of rape, defence emphasised the contents of Exhibit D3, the Facebook communications between the complainant and the accused. It was also emphasised that, on occasion, the complainant returned to the home of the accused alone in his company, smoked cannabis with the accused, requested the accused drive her places and communicated with the accused in generally friendly terms via Facebook Messenger. 213 In isolation, I accept these factors may tend to militate against the expressed desire of the complainant to disassociate with the accused. This evidence cannot be assessed in a vacuum. The complainant repeatedly reinforced her desire to ignore what had happened, ‘act normally’ and ‘not be the one that split up the family again’. 214 I further accept that under cross-examination as to the contents of Exhibit D3, the complainant was at times, defensive as to the apparent incongruity between her stated position of distancing herself from the accused and then seeking his assistance. Despite this defensive attitude, I accept the explanation of the 354 T83.7-21. -- 48 of 50 -- [2025] SADC 69 47 complainant that she was endeavouring to maintain the charade of normality and on occasion combine pragmatism (i.e. the desire to seek and accept assistance from the accused) with behavioural suppression (i.e. her outward pretence that the rapes never occurred). General Inconsistencies 215 Defence also pointed to a number of suggested inconsistencies in the specific narrative proffered by the complainant. These include specifics as to when she moved in and out of the house of the accused, when others may have moved in and out of the house of the accused and the specific mechanics of where hands may or may not have been placed at certain times, or bodily positioning during the alleged acts of intercourse. It was suggested that these inconsistencies reflected poorly on the reliability of the complainant. 216 I regard these inconsistencies as being of minor significance. It is hardly surprising that the complainant was imperfect as to her recall of chronological tenancy details or the minutiae of the physical details of the alleged sexual assaults. These inconsistencies are readily explained by the passage of time, the evidence of the complainant that she was in a state of shock and are, to my mind, of little significance. Conclusion 217 Where the prosecution case relies upon an acceptance of the credibility and reliability of a complainant beyond reasonable doubt, a lie admittedly proffered by a complainant in ‘wanting someone to believe’ her is brought into sharp focus in an assessment of these critical issues. 218 In assessing credibility and reliability of [ZH], I have scrutinised her evidence with great care. I have paid particular regard to the submissions of defence, identifying the faults and problematic issues arising on her evidence. I have considered all of the evidence. I have taken into account the forensic disadvantage of the accused. I have also taken into account the submissions of the prosecution. In my analysis, I have carefully assessed the impact of the proven lie of the complainant, admittedly proffered to enhance her credibility relating to the alleged offending. The significance of this is not lost on me. Notwithstanding the admitted lie, for the reasons previously articulated, I accept the explanation proffered by [ZH] on this topic. [ZH] was an authentic witness, who in her unsophisticated way, appeared genuine and was attempting to assist the Court as best she could. I repeat the caution I have expressed in terms of the influence of demeanour upon an assessment of the evidence given at trial. 219 In addition, [ZH]’s evidence is supported by the communication from the accused in Exhibit P2. 220 In accordance with my previous observations, the communication set out in Exhibit P2 amounts to evidence of the accused having a sexual interest in the -- 49 of 50 -- [2025] SADC 69 48 complainant. This is a piece of evidence capable of supporting the evidence of the complainant. This only serves to fortify my findings as to the credibility and reliability of the complainant. 221 I am satisfied beyond reasonable doubt as to the credibility and reliability of the evidence of [ZH]. I accept beyond reasonable doubt her evidence that on each of the three charged occasions, she awoke to her vagina being penetrated by the penis of the accused. On each of those occasions [ZH] was not consenting because she was asleep.355 222 Having found the first element proved, and that the complainant was asleep, I also find the second element of each charge of rape proved beyond reasonable doubt. 223 On the proven evidence in this case, it would have been obvious to the accused that on each charged occasion the complainant was not consenting. I find it proved that the accused knew the complainant was asleep and was not consenting to him penetrating her vagina with his penis. 224 The third element of the offence on each charge of rape is also proved beyond reasonable doubt. 225 I have given separate consideration to each of the charged offences and have not impermissibly reasoned that guilt on one offence would lead to guilt on another. 226 I find the accused guilty of counts 1, 3 and 5. There is no need to consider the alternative verdicts. Verdicts 227 I find the accused: 1. guilty of count 1; 2. guilty of count 3; and 3. guilty of count 5. 355 CLCA s 46(3)(c). -- 50 of 50 --