[2025] SADC 106

Prosecution: R Counsel: MS N MOORE WITH HER MR J POWELL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: MSP Counsel: MR S HENCHLIFFE KC - Solicitor: PATRICK DEEGAN Hearing Date/s: 30/04/2025, 01/05/2025, 02/05/2025, 05/05/2025 File No/s: DCCRM-16-39 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 MSP (No 2) [2025] SADC 106 Reasons for the Verdicts of his Honour Judge Handshin 15 August 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES The accused is charged with seven counts of unlawful sexual intercourse with a person under 17. The complainant was, at all material times, the accused’s foster-sister. She was placed with the accused’s family in 1999 when she was aged 13 and remained living with the accused’s family until mid 2002, when she was 16 years old. The complainant gave evidence that she was moved to the accused’s family because her previous foster family physically abused her, including the mother, JN. After the move to the accused’s family home, the complainant alleged that from mid 2000, the accused embarked on a sexual relationship with her involving acts of digital penetration, fellatio and penis vagina intercourse, and which persisted until 2002 when the complainant left the residence. The accused was aged between 25 and 27/28 throughout the period of alleged offending. The complainant gave evidence of a number of specific episodes of alleged abuse, and said that sexual activity between her and the accused otherwise took place in the accused's bedroom on an almost nightly basis, without being detected by the accused’s parents. The complainant gave evidence that sexual activity between her and the accused was facilitated by their bedrooms being next to each other on the first floor of the residence. The accused did not give evidence in his defence but called eight witnesses, a number of whom gave evidence that contradicted the complainant’s account on important topics, including the complainant’s relationship with her previous foster family, which bedroom the complainant slept in after her relocation to the accused’s family home and the extent of the complainant’s role on the accused’s family farm, the latter two being central features of the complainant’s allegations against the accused. It was further agreed between the parties that on multiple occasions between 1999 and 2008, the complainant had made false allegations to her biological mother that she had sex with another foster brother prior to being relocated to the accused’s family home. In the course of her evidence, the complainant adamantly denied making such allegations. The prosecution accepted that the complainant’s denials were knowingly untruthful. Held: although aspects of the complainant’s account about the charged and uncharged acts appeared persuasive and internally consistent, the complainant’s evidence about key features of her allegations against the accused and important matters of background was contradicted by witnesses whose evidence could not be rejected. In particular, evidence that left open as a reasonable possibility that the complainant did not in fact occupy a bedroom next to the accused’s created significant problems for the integrity of the prosecution case. Moreover, the complainant’s evidence about having been -- 1 of 77 -- abused by her previous foster family was inconsistent with letters she had written to the family and with evidence given by the mother of the family, which could not be discounted. The lies told by the complainant to her biological mother about sex with a previous foster brother and what the prosecution conceded to be her false denials in court to having made such allegations in the past, was a further cause to doubt the credibility and reliability of the complainant’s account. The accused is not guilty of all charges. Criminal Law Consolidation Act 1935 (SA) s 49(3), (7); Evidence Act 1929 (SA) s 13C, 13D, 34CB, 34P(2)(a), referred to. R v Dookheea (2017) 262 CLR 402 ; Gately v The Queen (2007) 232 CLR 238; Brown v The King [2025] SASCA 40; R v Pope [2025] SADC 40; Morton (a pseudonym) v The King [2025] SASCA 29; Nieterink v The Queen (1999) 76 SASR 56; Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen (2019) 268 CLR 57; JGS v The Queen [2020] SASCFC 48; R v T, WA (2014) 118 SASR 382; R v R, PA [2019] SASCFC 19; Angus (a pseudonym) v The King [2024] SASCA 101; Bates v The King [2023] SASCA 65, applied. -- 2 of 77 -- R v MSP (No 2) [2025] SADC 106 1 The accused, who I will from time to time refer to as ‘MSP’, is charged on Information dated 31 January 2018 with seven counts of unlawful sexual intercourse with a person over the age of 12 and under the age of 17. 2 The Information is in the following terms: First Count Statement of Offence Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935). Particulars of Offence [MSP] between the 4th day of October 1999 and the 24th day of May 2001 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting a finger into her vagina. Second Count Statement of Offence Unlawful Sexual Intercourse. (Ibid). Particulars of Offence [MSP] between the 4th day of October 1999 and the 24th day of May 2001 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina. Third Count Statement of Offence Unlawful Sexual Intercourse. (Ibid). Particulars of Offence [MSP] between the 4th day of October 1999 and the 24th day of May 2001 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina. Fourth Count Statement of Offence Unlawful Sexual Intercourse. (Ibid). Particulars of Offence -- 3 of 77 -- [2025] SADC 106 2 [MSP] between the 23rd day of May 2000 and the 24th day of May 2001 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by causing her to perform an act of fellatio upon him. Fifth Count Statement of Offence Unlawful Sexual Intercourse. (Ibid). Particulars of Offence [MSP] between the 23rd day of May 2000 and the 24th day of May 2001 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina. Sixth Count Statement of Offence Unlawful Sexual Intercourse. (Ibid). Particulars of Offence [MSP] between the 23rd day of May 2000 and the 15th day of June 2002 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina. Seventh Count Statement of Offence Unlawful Sexual Intercourse. (Ibid). Particulars of Offence [MSP] between the 23rd day of May 2000 and the 15th day of June 2002 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina. 3 The accused pleaded not guilty to the charges and elected to be tried by a judge sitting without a jury. Overview of the prosecution case 4 The complainant (who I will sometimes refer to as ‘AW’) was, at all relevant times, the accused’s foster sister. She lived with the accused and his family on their Coomandook farm (the farm) from 1999 to mid 2002 when she was aged between 13 and 16. 5 When the complainant first moved into the farm, her older half-sister, J, was living with the accused and his family. J remained living at the farm for around 7- 8 months before moving out in mid-2000 shortly after her 19th birthday. -- 4 of 77 -- [2025] SADC 106 3 6 The homestead on the farm was a double-storey residence. During the time J lived at the farm, she occupied a down-stairs bedroom not far from the master bedroom. After the complainant commenced her placement at the farm, she occupied a spare bedroom on the first floor of the homestead that was adjacent to the accused’s bedroom. There is a conflict in the evidence as to whether the complainant was re-located to the spare down-stairs bedroom after J left. This issue assumed considerable importance at trial because of the nature of some of the complainant’s allegations. 7 The upstairs bedrooms of the house were accessed by an internal timber staircase positioned in the lounge / dining area. At the top of the staircase was a small landing. The door to the accused’s bedroom at the top of the staircase was visible from the bottom of the staircase and, in particular, from a sofa on which the accused’s parents would often sit whilst watching television. With a turn of the head, a person sitting on the sofa at the bottom of the staircase would be able to see up to the accused’s bedroom door. The flooring in the upstairs area of the house was comprised of timber boards that would creak when walked upon and as they expanded and contracted throughout the seasons. 8 The prosecution case is that from around mid-2000, after J left the farm, the accused commenced a sexual relationship with the complainant. The complainant was then 13 or 14 years of age; the accused was 25 years of age. The sexual relationship commenced one night out of the blue when, having had no real relationship or interactions with the complainant beforehand, the accused entered her bedroom where the complainant was in bed but not asleep and asked if she wanted to be touched. Thinking that the accused was offering to console her because she had been lonely and upset after moving to the farm, the complainant agreed, expecting the accused to hug her. However, on the prosecution case, the accused put his hand under the complainant’s blanket and began rubbing her leg. The accused then told the complainant to join him in his bedroom which she did. After some time in the accused’s bedroom, the prosecution case is that the accused digitally penetrated the complainant (count 1) and then engaged in penis vagina sexual intercourse with her (count 2). The accused is alleged to have told the complainant not to tell anyone about what had happened, threatening to shoot her and then himself if she did. On the prosecution case, the accused kept a .22 calibre rifle behind his bedroom door. 9 The alleged commission of counts 1 and 2 marked the commencement of a sexual relationship between the accused and the complainant involving sexual intercourse in the accused’s bedroom on an almost nightly basis that, on the prosecution case, continued for almost two years without detection. The complainant gave evidence that sex regularly took place at 8:30pm, when the television show ‘Law & Order’ would air. The accused’s mother would leave the sofa at the bottom of the stairs to make herself a tea or coffee. This was the complainant’s ‘cue’ to sneak across the landing at the top of the stairs and into the accused’s bedroom, where sexual intercourse would occur. Sometimes the accused’s mother would not watch Law & Order and would instead play cards on -- 5 of 77 -- [2025] SADC 106 4 the computer in the home office located on the ground floor. The complainant would hear the clicking of the computer mouse and, knowing that the accused’s mother was not in the lounge room, would creep across the timber flooring and into the accused’s bedroom. 10 Count 4 was alleged to have taken place an indeterminate amount of time after counts 1 and 2 and involved the accused returning to the house in an upset state and retreating to his bedroom. The complainant had been sitting with the accused’s father in the lounge room at the time the accused returned home and had a discussion with the accused’s father about the accused’s appearance. The accused’s father walked out of the house and the complainant went up to see the accused who, on the prosecution case, was sitting on his bed with the barrel of his rifle in his mouth. After some discussion, the accused is alleged to have asked the complainant to perform oral sex on him which she did. 11 Count 3 allegedly occurred the night after count 4 and involved an act of penis vagina sexual intercourse. The complainant gave evidence that the television show the ‘X-Files’ was playing on the television in the accused’s room on this particular occasion. By this point in time, the complainant considered herself to be in a romantic relationship with the accused. 12 Count 5 was another episode of penis vagina sex allegedly taking place in the accused’s bedroom. The complainant gave evidence that this was the first occasion on which she had sex with the accused whilst positioned on top of him, which caused an injury to her vagina. 13 Count 6 concerns an allegation that the accused had sexual intercourse with the complainant in the cabin of a Volvo truck that had been acquired by the accused’s parents for transporting grain. The prosecution case was that the complainant had been in the truck with the accused who wanted to see if she could ‘double declutch’ and split shift the gears. After some instruction, the complainant was able to drive the truck prompting the accused to tell her he was proud of her. They then had sex in the back of the cabin. The complainant was unable to say precisely when this incident occurred but she thought it was around harvest time. However, other evidence put before me, and agreed facts, indicates that the Volvo truck was not acquired until April 2002 and the complainant was not present for the 2002 harvest at the end of the year as she had left the farm by then. 14 Count 7 involves an alleged act of penis vagina sex in a harvester being driven by the accused. The complainant thought this incident occurred after the Volvo incident, which would place it in the harvest of 2002 by which time the complainant had already left the farm. 15 The prosecution case is that after assisting the accused with harvesting duties by driving a tractor and a chaser-bin, the accused told the complainant to get into the harvester with him. After finishing harvesting, the accused undid his pants. The -- 6 of 77 -- [2025] SADC 106 5 complainant masturbated him and then sat atop him, facing away from him. Sexual intercourse took place with the complainant in this position. 16 The complainant left the farm in June 2002 in the context of disciplinary troubles at school and conflict with the accused’s mother. The prosecution case is that the accused thereafter took unsuccessful steps to try and have the complainant live with him, which the prosecution contend was demonstrative of his romantic interest in her. Directions 17 The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. He is presumed innocent of the charges unless and until the prosecution proves each element of the offences charged beyond reasonable doubt. In this respect, I keep in mind the comments of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] concerning the standard of proof: …being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt. 18 It is a corollary of the prosecution’s burden of proof that if, having considered all of the evidence, I am unsure where the truth lies in relation to a charge, my verdict must be not guilty. 19 Equally, the question for me is not whether I prefer the evidence of the complainant to the evidence given by defence witnesses.1 I cannot resolve the issues in dispute by making a choice as between the conflicting bodies of evidence.2 The accused may be found guilty if, and only if, I am satisfied beyond reasonable doubt that the prosecution have proved each and every element of the offence under consideration. 20 As the finder of fact, it is necessary for me to make an assessment of the truthfulness and reliability of the witnesses who gave evidence. It is of course my prerogative to accept or reject all or parts of a witness’ evidence. 21 At the conclusion of the prosecution case, the accused indicated that he would not give but would call evidence in his defence. It was the accused’s right not to give evidence and I draw no adverse inference from the exercise of his right. I have not used his silence as a make weight or to fill any gaps or deficiencies in the prosecution case. To do otherwise would be to undermine the accused’s right to silence. Plainly enough, the fact that the accused elected not to give evidence does 1 Liberato v The Queen (1985) 159 CLR 507, 515. 2 De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11]. -- 7 of 77 -- [2025] SADC 106 6 not alter the burden of proof which remains fixed on the prosecution; nor does it affect the weight that must be given to the presumption of innocence. 22 Similarly, by calling other witnesses as part of the defence case, the accused did not assume any burden. I will evaluate the evidence of the defence witnesses in the same way I will evaluate the evidence of the complainant. 23 In deciding whether an offence has been proved beyond reasonable doubt, I must have regard to the whole of the relevant and admissible evidence on that charge. This will require me to evaluate any inconsistencies in the evidence of the complainant or as between her evidence and other evidence that is before me, together with any other shortcomings in the prosecution evidence which bear upon the discharge of its burden. The significance of any asserted inconsistencies or other shortcomings in the evidence going to a particular count are to be evaluated collectively and not compartmentalised. I indicate that I have taken this approach when considering the evidence of all witnesses. 24 In considering the evidence and whether I am satisfied to the criminal standard of the elements of the offences, I have brought an open and unprejudiced mind to bear. I remind myself of the importance of making a decision without sympathy, prejudice or fear. 25 I must give each of the charges the accused faces separate consideration by reference only to the evidence admissible in support of a particular charge. The charges do not rise or fall together. My verdict in relation to any one charge cannot dictate my verdict in relation to the other charges. 26 In the course of final submissions, the prosecutor, Ms N Moore, submitted that the evidence of each count was cross-admissible in relation to each other count for classic non-propensity purposes,3 namely to provide important explanatory context for the charged acts including: - to explain that counts 3 to 7 did not ‘come out of the blue’, but represented ongoing incidents as part of the sexual relationship, the commencement of which was demarcated by the alleged commission of counts 1 and 2; - to assist in informing any criticism of shortcomings in, or confusion related to, the complainant’s account as to some counts (because of the alleged commission of a multiplicity of offences); - to assist in explaining why the complainant continued to acquiesce in or submit to ongoing sexual activity and to help understand why she made no complaint about the accused’s conduct; 3 Nieterink v The Queen (1999) 76 SASR 56. -- 8 of 77 -- [2025] SADC 106 7 - to assist in explaining how the accused may have come to feel sufficiently confident to maintain a sexual relationship with the complainant over an extended period of time. 27 Having applied the test for admission prescribed by s 34P(2)(a) and (3) of the Evidence Act 1929 (SA) (Evidence Act) I am satisfied that evidence of each count is cross-admissible for these purposes, and senior counsel for the accused did not suggest to the contrary. 28 These are the only uses that can be made of the evidence of each count, if I accept it, as to each other count. The evidence cannot be used to reason that, if the accused engaged in one or more sexual acts with the complainant, he was a bad person or the sort of person more likely to have committed another charged act or acts. Nor can my satisfaction as to any charged act, be used as a substitute for proof beyond reasonable doubt of any other charged act or acts. Forensic disadvantage 29 I say something now about the significant forensic disadvantage that I consider the accused confronts in defending allegations which date back more than two decades. Whilst s 34CB of the Evidence Act has no application to trials before a judge sitting without a jury,4 the principles enshrined in s 34CB emanate from the common law’s recognition of the impact of delay on an accused’s ability to test and challenge a prosecution case and to marshal evidence relevant to his or her defence of a criminal charge. It will be appropriate for a judge sitting without a jury to apply these principles when evaluating whether the prosecution has met its burden of proof in circumstances in which s 34CB would otherwise apply. 30 It is apparent from the brief chronology set out earlier, that the allegations against the accused date back to 2000-2002. The complainant gave evidence, and was cross-examined, in 2018 and 2021.5 31 The significant forensic disadvantage to the accused has a number of dimensions. For one, the lengthy passage of time may have impacted upon the accused’s memory of the relevant events and surrounding circumstances and hence impaired his capacity to instruct his lawyers and test the evidence of the complainant in particular. Had the trial (by which I include the trials at which recorded evidence was taken) been conducted more proximately to the alleged events, the accused may have been able to give or lead evidence as to his whereabouts or movements on a particular occasion, or who he might have been with, which might have revealed inconsistencies related to or implausible aspects of the prosecution case. The accused may have been in a position to marshal documentary or other evidence in support of his defence of the charges. 4 JGS v The Queen [2020] SASCFC 48, [146]; R v T, WA (2014) 118 SASR 382, [21]-[22]; R v R, PA [2019] SASCFC 19, [85]; Angus (a pseudonym) v The King [2024] SASCA 101, [45]-[46]. 5 P20, [21]-[23]. -- 9 of 77 -- [2025] SADC 106 8 32 In addition, the accused’s father, TP, passed away in 2023,6 and it can be inferred that there are other witnesses who, but for the passage of time, may have been in a position to give evidence relevant to the defence case including what I will refer to later as the ‘circumcision’ conversation. TP was, potentially, a very important witness having regard to the complainant’s allegations concerning count 4 in particular; her evidence about how much of the alleged offending took place in the accused’s bedroom; the work that the complainant performed on the farm which was said to have given rise to the opportunity for the commission of counts 6 and 7; the circumstances and timing of the acquisition of the Volvo truck (a matter that was the subject of evidence) and whether gear shifts in that truck required double declutching (count 6). 33 The passage of time may have also impacted the memory of the complainant.7 The complainant may have become convinced that a particular event or incident took place even though it did not or may have forgotten or misremembered details that would be to the benefit of or otherwise significant to the defence case. There were numerous occasions during the course of the complainant’s evidence where she was, for example, unable to remember when certain incidents were alleged to have taken place, which, had they been identified with more precision, might have given rise to an opportunity for the accused to demonstrate that the incident could not have occurred when or in the circumstances described by the complainant. The loss of the forensic tools available to the accused to test and challenge the evidence of the complainant on account of the passage of time may in turn have impaired his ability to demonstrate the unreliability or lack of credibility in the complainant’s evidence. 34 Accordingly, I am satisfied that the effluxion of time since the commission of the alleged offences has resulted in a significant forensic disadvantage to the accused that I will bring to account when scrutinising the prosecution evidence. Elements of the offences 35 For each charge, the prosecution must prove that the accused had sexual intercourse with the complainant when she was over 12 but under 17 years of age. Sexual intercourse is defined to include penetration of the labia majora by any part of the body of another person and fellatio. 36 Consent is no defence to a charge of unlawful sexual intercourse.8 37 There was no dispute between the parties that if the charged acts were proved beyond reasonable doubt, the elements of the offences would be made out. The 6 TT67. 7 I make it plain that the only relevant disadvantage in this respect is that experienced by the accused on account of the lack of precision in the evidence of the complainant as to some matters of timing or other contextual details for example: Bates v The King [2023] SASCA 65, [55]-[60]. 8 Criminal Law Consolidation Act 1935 (SA), s 49(7). -- 10 of 77 -- [2025] SADC 106 9 only issue at trial was whether the prosecution had proved that the accused engaged in the conduct alleged. The trial 38 These proceedings have a protracted and unfortunate history, which is discussed in my reasons for granting a conditional stay of this trial,9 and which it is not necessary to now repeat in any detail, save to explain why the evidence was put before me in the way it was. 39 This trial was the eighth trial of the charges. 40 The prosecution did not call any witnesses at this trial. Instead, it relied on the recording of evidence previously given by the complainant and the exhibits tendered during previous trials which were put before me by consent, with their original exhibit numbers, in a trial book marked P1A. Accordingly, where reference is made to exhibit numbers throughout the course of my reasons, I am referring to the original exhibit numbers given to various documents at previous trials, noting that each of those exhibits formed part of P1A before me. Additional exhibits tendered during this trial were given exhibit numbers following on from the original exhibit numbers. 41 As noted, evidence given by the complainant at earlier trials in 2018 and 2021 was recorded pursuant to s 13C of the Evidence Act and was played before me pursuant to s 13D of the Evidence Act by consent.10 In accordance with the reasons of the High Court in Gately v The Queen (2007) 232 CLR 238 and the observations of Livesey P in Brown v The King [2025] SASCA 40 at [210]-[222], I marked for identification the discs containing the audio visual records of the complainant’s evidence instead of receiving them as exhibits. Transcripts of the complainant’s recorded evidence were received as aides (MFIP14, MFIP15 and MFID24A).11 42 I have not allowed the fact that the complainant’s evidence was put before me by way of the playing of recordings to influence the weight I have given to her evidence, nor do I draw any adverse inference against the accused because the evidence was put before me in this way. 43 For the purpose of hearing the application for a temporary stay, I became aware of the fact that some of the previous trials miscarried and that there was a successful appeal against convictions. I have not allowed the fact that this was not the first trial of the charges to influence my approach to the evidence or the findings I make. I do not draw any inference adverse to the accused from the fact that he has previously been convicted of the charges. To the extent that I remain 9 R v MSP [2025] SADC 40. 10 MFIP7-MFIP10. 11 I will refer to passages from MFIP14, MFIP15 and MFID24 only by reference to ‘Tx’ where ‘x’ is the page number of those exhibits. To avoid confusion, I will refer to passages of the trial transcript before me using the acronym ‘TT’. -- 11 of 77 -- [2025] SADC 106 10 uninformed about why there have been 7 previous trials, I do not speculate about the reasons there have been so many previous trials of the charges. The evidence of the complainant 44 The complainant was born on 24 May 1986. At the time of her recorded evidence, she was 32 and 35 years old. The complainant’s time with the N family 45 The complainant had a difficult upbringing. She was placed in foster care from a very young age together with one of her younger sisters, T.12 46 The first permanent foster placement the complainant had was with the N family: JoN and JN and their three children, one of whom I will refer to as LN. The complainant lived with the N family between July 1990 and October 1999, at which point she moved in with the accused’s family at Coomandook.13 She was then 13 years of age. 47 LN was 12 or 13 years old at the time the complainant began living with the N family.14 48 The complainant gave evidence that she was subjected to violence by both JoN and JN during her time living with the Ns. She described JoN as a violent alcoholic. She said that she and her sister, T, fought with each other on an almost daily basis and that she ultimately went to stay with the accused’s family because she ‘had had enough of being beaten up by my foster father at the time’.15 49 In cross-examination, the complainant said that whilst the suggested reason for her leaving the N family was that she and T were not getting along with each other, that was not the real reason for her move.16 The complainant accepted that she fought terribly with her sister over the nine years she lived with the N family and that they would ‘beat each other up’. The complainant rejected the suggestion that the N family arranged for the complainant to be re-located out of a fear that she would hurt her sister. She added:17 A No, no, no, the foster father was an alcoholic and he used to beat us up and I'd had enough on it because he pushed my sister into the bath, she hit her head on the tiles on the wall on the other side of that bath because she wet her bed. He rubbed her nose in it, I'd had enough, I'd stand there and try to defend my sister, I felt sick watching that. All right, so I said to them 'I've had enough'. I went down to the phone box down in the main street, I rang up the child abuse report line because I'd had enough of him beating us up and rubbing her face in her wet bed because she had a bed wetting problem and I was sick of seeing that, and so I rang up about it and when the police came out, out there everyone knows everyone, it is a small country town, 12 T29. 13 T29-30; P20, [8]. 14 T86. 15 T30. 16 T77. 17 T88. -- 12 of 77 -- [2025] SADC 106 11 everyone knows everyone. The police knew the foster carers. So they turned around and said 'You don't want to make lies about these people' blah, blah, blah. They left us there and when they left I still did not want to stay there. I pressed the issue that I wanted to leave, I'd had enough. Q Thank you. Have you finished. A Yes. 50 Elaborating on the circumstances in which the move came about, the complainant said later during cross-examination:18 Q Just so that I'm clear, just so that you've got the opportunity to answer this, at no time did [JoN] ever beat you while you were living there. A Yes, he did. Q You had a good time living with that family, didn't you. A There were good times but there were also hard times too. Q They were a loving caring couple to you, both [JN] and [JoN], weren't they. A No. Far from it. Q That's what you thought of them, that is that they were lovely to you. A That's what I think they are? Q Yes. A No. Q That they created a good family environment for you. A No. Q You say, do you, that [JN] beat you as well. A Yes. Q [JN] never beat you. A Yes, she did. Q Ms [AW]. A Yes, she did. Q [JN] was kind and patient with you, wasn't she. A No. 18 T89-91. -- 13 of 77 -- [2025] SADC 106 12 Q The reason that you left their care is because of the continual violence that you perpetrated on your sister [T], do you agree with me. A No. Q You are, in effect, saying to the jury that you left because of your claim of them abusing you, is that right. A Yes, I didn't want to be there anymore and [JN] made the call, she told me to sleep on it. Q Sorry. A She told me to sleep on it. Q Who said that. A [JN] did and then the next morning she was on the phone to them, because she asked me if I still wanted to leave and I said 'Yes' and she asked me where I think I'm going to go and I said 'I don't care, as long as I'm not here, I don't care where I go'. She rang up, I went in my room, I didn't hear the conversation, what was said, I went to my room. Q Just so I'm clear with you, the reason that you left wasn't because of a decision of yours, it was a decision made by [JoN] and [JN] because of their concern that you were going to harm [T]. A No. Q Or [T] might harm you. A [T] and I were both as bad as each other. I'm not saying that we gave it to them easy, but at the same time I'm not saying they're innocent in all of this either. Q They were concerned that the two of you might end up seriously hurting each other and that's why you needed to be separated, that's the truth, isn't it. A I do think that we needed to be separated, but that's not how it came to be at that point. Q This was never, ever a case of you wanting to leave because of this claim of yours that they were beating you. A Can you say that again? Q You didn't leave because of any perception on your part that you were being beaten. HIS HONOUR Q That's a question. A I didn't leave - XXN Q They never beat you ever, either of them. -- 14 of 77 -- [2025] SADC 106 13 A Yes, they did. Q Now you - sorry I'll just ask you a few more questions about when you were at the [N’s], do you agree that you used to steal from them. A Yes. Q Do you agree that you used to lie to them. A Yes. 51 In further cross-examination on this topic, the complainant reiterated that JoN was an alcoholic who used to beat her and her sister. 52 The complainant accepted that there were good times when she lived with the Ns but also ‘hard times’ and she denied that JoN and JN were a loving, caring couple to her and that they created a good family environment. 53 The complainant maintained that JN also beat her and rejected the suggestion that JN was a kind and patient foster mother to her.19 54 The complainant acknowledged that she used to lie to the Ns and steal from them.20 55 The complainant agreed that her first born child, who I will refer to as AB, went to live with the N family from the time he was very young and that he had continued to live with them ‘ever since’. She agreed AB had taken the ‘N’ name.21 56 In the context of her evidence about the nature of the household environment during the time she lived with the N family and her allegations of physical abuse, the complainant was cross-examined about a number of letters she had written. The first, D10, was a letter the complainant wrote to her son AB, then living with the N family, on 10 October 2004: To [AB], Hi sweetie, how are you? I hope that you are well and going great. Mummy is doing really well. I love you lots darling & I miss you dearly. You are a beautiful little boy, whom I am really proud to call my son. Your Great Uncle loves you very much also and says to say ‘hello’ to you. I do have some good news for you [AB]. And that news is that you have a baby brother/sister on the way! :) Mum has sorted out her head now so hopefully you will be home soon. 19 T89-90. 20 T91. 21 T93-94. -- 15 of 77 -- [2025] SADC 106 14 You have a good home at the moment though so I know you will be well looked after until that time when you come home to mummy. Well Id better send this off to you now, also because the sooner I send it – the sooner you get it… Lots & Lots of Love, From Mummy xxx P.S – Mummy loves you very, very much – Don’t ever doubt that. 57 After being taken through the contents of the letter, and in particular the characterisation of the N household as a ‘good home’ where AB would be well ‘looked after’, the complainant maintained that JoN and JN had ‘regularly’ beaten her as a child.22 The complainant said however that JN was ‘not as bad’ as JoN in this respect, as JoN would get drunk and impatient and ‘lose the plot’.23 With further testing of her evidence on this point, the complainant said JN would go ‘overboard with her punishments’.24 58 The complainant was asked whether she continued to refer to JN as ‘mum’ after leaving the N family. She said she could not remember but it was possible she did. She denied having fond memories of her time with the N family or thinking that JN was a good foster mother to her. She rejected the suggestion that she wanted to return to live with the N family after she left; that she missed the environment; that she loved the N family and missed them all.25 59 The complainant was subsequently cross-examined on a further letter (D11) she agreed she had written, this time to JN on an unknown date, but which must have been some time after AB’s birth: Hey mum, Just a quick note 2 let you know that my new Phone no. is: [suppressed]. How are you all going? Im doin really well now & Im getting my life back on track but still getting a little stressed out now & again but I have learned to keep myself under control now, which is good. Im on the waiting list for housing at the Housing Trust & Centacare so hopefully a house should come up within the next couple of months. I read the emails between Dad & [T] – Interesting! Shows the low-life person that he really is I think! :) 22 T95. 23 T95-96. 24 T96. 25 T96-97. -- 16 of 77 -- [2025] SADC 106 15 Please say hi 2 dad, [T] & [AB] for me & send them all of my love. No-one could ever mother me the way you ever have, I just wanted you 2 know that you mean the world to me & that I love you as much as I would if you were my ‘biological’ mum. I love you all very much & miss you all dearly. All my love as always, [AW] xxx P.S – I was just wondering if I could stay for a weekend as Im missing the family environment with you all? Think about it then msg me or something. 60 The complainant was taxed at some length on some of the expressions she had used in this letter. As to calling JN ‘mum’, she said that she had been brought up to do so. She said the reference to someone being a ‘low life’ was a reference to her biological father; not JoN who she had asked JN to say ‘hi’ to for her. After being taken to those parts of the letter in which she wrote that ‘no one could ever mother me the way you ever have’; that she loved JN ‘as much as I would if you were my biological mum’; and that she wanted to stay with the Ns for a weekend as she was missing the family environment with them, it was again put to the complainant that JN never beat her. The complainant adhered to her evidence that she had.26 61 The complainant agreed that the N family’s youngest son, LN, lived at the house during her placement, until leaving around 1997 after he completed high school. The complainant was asked whether she had any sort of sexual relationship with LN. This passage of the complainant’s cross-examination is important and I set it out in full:27 Q With respect to [LN], you never had any sort of sexual relationship with him, did you. A No. Q There was never any sex between you and [LN] - A No. Q - was there. A No. Q That never happened. A No. 26 T98-99. 27 T102-103. -- 17 of 77 -- [2025] SADC 106 16 Q Your mother is [DB], isn't she. A [DB], yes. Q [DB], sorry. That's a yes. A Yes. Q That's your biological mother. A Yes. Q You told her on a number of occasions, didn't you, that you were having sex with the [N]' son, [LN]. A No. No. Q You said that to her in about 1999, didn't you. A No. Q And you said that to her again in 2002, didn't you. A No. It never happened. Q Pardon. A It never happened. Q Well, I know that it never happened, but you said to your mum that it did, didn't you. A No. No. Q You said specifically to your mum that you had had sex with [LN] - A No. Q - didn't you. A No. Q If you can be shown this document. I want you to read that document. You've read the document. A Yes. Q Having read that document, do you agree that you told your mum that you had had sex with the [N]' son, [LN]. A No. Q Do you agree that you told her that in about 1999. A No. Q Do you agree that you said to your mother that it was a mutual thing. -- 18 of 77 -- [2025] SADC 106 17 A No. Q And that you were not upset by it but you were just telling your mum about it. A No. Q If you told your mum that you had had sex with [LN], that would not be true, would it. A If I told her that - Q If you had said to your mum that 'I had sex with [LN]', that wouldn't be true, according to you. A That's right. Q If you had said that to your mum, that would be a lie to your mother. A Yes. Q If you said it to her, you would be lying to her about having had sex with your foster brother. A Yes. Q And that's exactly what you did do, you did tell your mother that, didn't you. A No. 62 The document which senior counsel for the applicant put to the complainant during the above exchange is D12 – a record prepared by a social worker, Ms Kenny, who had dealings with the complainant during her placements. D12 records: Date-Time Nature-Record of Contact 13/8/02 T/c to [DB] to see how things are going. Re [AW] telling her of having sex with Ns’ son [LN]. [DB] said [AW] first told her about this 3 years ago, then mentioned it again last year. Then recently mentioned it again. [AW] had said that it was “a mutual thing” and just mentioned it again “by way of information”, not because she was upset by it. 63 As to the provenance of D12, its compilation and significance, the following facts were agreed between the parties in D13: R v [MSP] – Agreed Facts 1. Jean Kenny was employed by the Department of Human Services in South Australia (‘the Department’) from 1985 until November 2003. -- 19 of 77 -- [2025] SADC 106 18 2. Jean Kenny was a qualified social worker and worked in a number of offices in the metropolitan area. 3. Jean Kenny met [AW] when she was still in placement with the N family in Karoonda. 4. Jean Kenny was the Ns’ foster support person, but she did not have direct contact with [AW] while she was with the Ns’. 5. When [AW] went to live with the [Ps], Jean Kenny became her case worker ([AW] was around 13 or 14 years old). 6. As [AW’s] case worker Ms Kenny was responsible for overseeing [AW’s] welfare. 7. The Department keep records in relation to children they care for during their placements. 8. Ms Kenny would make notes soon after she had contact with anyone who was involved in [AW’s] life. 9. The typed notes in Exhibit D12, made by Ms Kenny, form part of the business records of the Department. 10. It is important that conversations that include complaints of a sexual nature are accurately recorded. Ms Kenny understood the importance of keeping accurate records for the Department about children the Department cared for. 11. Exhibit D12 described as a ‘continuation sheet’ is a typed record of a telephone conversation between Ms Kenny and [DB] on 13 August 2002 about [AW]. 12. If called to give evidence, [DB] would say that she contacted the Department of Human Services on 13 August 2002 and relayed to Ms Kenny what [AW] had told [DB] about [LN]. 13. The typed notes of the telephone conversation referred to in exhibit D12 were made by Ms Kenny shortly after the conversation she had with [DB]. 14. The typed notes in exhibit D12 made by Ms Kenny is an accurate record of the conversation she had with [DB]. 64 The parties also agreed the following further facts which set out the evidence that the complainant’s mother, DB, would have given about these out of court statements made by the complainant, had she been called to give evidence:28 1. If called to give evidence, [DB] would say the following: a. When [AW] was about 11 or 12 [AW] told [DB] that [LN] was having sex with her. [DB] recalls this because she remembers [AW] spelling out that word rather than saying it. [AW] said S E X, [AW] told her it was a secret. 28 The circumstances in which the agreed facts D13 and P18 came to be agreed at previous trials and at this trial, are set out in my earlier reasons dealing with an application for a conditional stay: R v MSP [2025] SADC 40. -- 20 of 77 -- [2025] SADC 106 19 b. [AW] told [DB] again about [LN] having sex with her. This was when [AW] went to live with [DB] in Queensland. [AW] was about 16 years old at the time. c. The last time [AW] told [DB] about her having sex with [LN] was in or around August 2008 at the Modbury Hospital. [AW] was 22 years old at the time. 65 As can be seen, the combined effect of D12, D13 and P18 is essentially two fold: first, if the agreed facts are accepted, the complainant made false allegations to her mother about having some form of sexual interactions with LN – a former foster brother; secondly, the complainant either lied during her evidence when she denied having previously told her mother about sex with LN or alternatively simply forgot that she made such allegations against LN on a number of occasions. As will be seen, the prosecution ultimately conceded that, in light of the complainant’s adamant denials of having made the allegations, I should proceed on the basis that the complainant lied during her evidence but there is, it is submitted, a good reason why she may have done so. I will return to this issue later in my reasons. 66 In re-examination, the complainant again confirmed that there was no sexual contact between her and LN and that she had never made a statement to police to that effect.29 67 She said that the violence she was subjected to by JN involved, by way of example, being ‘whacked…over the face and head a lot’ and the use of a steel ruler to ‘crack us over the knuckles’.30 These acts would occur in response to something that had happened.31 68 As to the placement of her son AB with the N family and the letters D10 and D11, the complainant said that JN had told her that if the complainant asked ‘welfare’ to place AB with the N family, JN would allow the complainant to see him whenever she wished.32 69 The complainant explained that her letter to AB (D10) was intended to let him know that she thought about him and had not abandoned him.33 Moving in with the accused’s family 70 On 5 October 1999, the complainant commenced her placement with the accused’s family, who I will refer to hereafter as the P family. She remained living with the P family until 15 June 2002.34 The P family consisted of TP, AP and their son, the accused, who was 25 years old when the complainant moved in. 29 T146-147. 30 T148. 31 T149. 32 T149-150. 33 T151. 34 P20, [8]. -- 21 of 77 -- [2025] SADC 106 20 71 The P family lived on a large farming property where they grew crops and had livestock.35 The residence itself was two storey. 72 When the complainant moved in with the P family, her older half-sister J was already living with them.36 73 Following her move, the complainant began attending the Coomandook Area School. She was then in year 7. She remained enrolled at the school until she was 16.37 The complainant said she was a disruptive, hyperactive and argumentative student.38 Relationships within the household 74 The complainant gave evidence that she liked the Ps when she first moved in. She said they were ‘nice’, ‘welcoming’ and ‘weren’t abusive’.39 She initially got along well with J. She did not get along well with the accused, who she thought was rude and arrogant and made her feel unwelcome.40 She did not speak with the accused. 75 The complainant thought that J left the farm the year after she moved in.41 By that stage, the complainant’s relationship with J had become ‘argumentative. [J] would get me in trouble. She would set up situations to get me in trouble and she would say that she was the princess and the daughter that [the P family] never had’.42 76 The complainant thought the accused lived on the farm the entire time she resided with the P family.43 The allocation of bedrooms 77 By reference to P2 and P3, the complainant said she occupied the upstairs bedroom next to the accused’s bedroom for the entire time she resided with the P family. Photograph 10 of P3 shows the accused’s doorway at the top of the stairs. For reasons that will become apparent, this is important because it demonstrates that the doorway to the accused’s bedroom was visible from the lounge room downstairs. It can also be seen from the photographs that the stairs and the upstairs floor were timber. 35 T32, 33. 36 T31. 37 T31. 38 T32. 39 T34. 40 T35. 41 T35-36. 42 T44-45. 43 T36. -- 22 of 77 -- [2025] SADC 106 21 78 During the complainant’s placement, the accused had a single bed in his bedroom and not the double or queen bed seen in photographs 11 and 12 of P3.44 There was a television on a small set of drawers at the end of the bed.45 79 The complainant was unsure whether the bed shown in photographs 13 and 14 of P3, which depict her bedroom, was the bed she had during her time at the farm. The desk and chest of drawers were not in the room at the time, nor was there a television or a rug on the floor.46 80 TP and AP slept in the main downstairs bedroom. Photographs of the house show that an internal staircase in the main lounge room of the house where the television was provided access to the upstairs bedrooms.47 The complainant said that, at the time she lived with the P family, the television was positioned to the right hand side of the fireplace visible in photograph 5 (as one looks at the photograph). There was a sofa where the television is, as depicted in photograph 5, and another sofa in the area of the bottom of the staircase, essentially separating the lounge and dining areas.48 81 The complainant said that photograph 9 of P3 showed J’s bedroom during the time she lived on the farm, albeit without the bunkbeds.49 After J left, her bedroom was used as a spare room, according to the complainant. As will be seen in due course, the complainant’s evidence on this topic was inconsistent with evidence given by AP that after J left the farm, the complainant was re-located to J’s bedroom on the ground floor. 82 The complainant rejected the suggestion that after J moved out, she was relocated to the downstairs bedroom, and maintained that the upstairs bedroom to which I have referred remained hers throughout the time she lived on the farm.50 83 As to the view to the accused’s bedroom door, the complainant agreed that photograph 10 showed what anyone sitting on the sofa at the bottom of the stairs would be able to see. 84 The complainant agreed that to get from her room to the accused’s required her to move across the landing at the top of the stairs.51 She also agreed that the timber flooring upstairs could creak and groan as people moved about and with expansion due to weather.52 44 T43. 45 T43. 46 T44. 47 P3. 48 T40. 49 T41. 50 T83, 120. 51 T85. 52 T85, 120. -- 23 of 77 -- [2025] SADC 106 22 85 She disagreed with the suggestion that the accused moved out of the farm in around February / March 2002.53 Working on the farm 86 The complainant gave evidence that she worked on the farm. She said she ‘would drive the chaser bin, move augers, move field bins’.54 A chaser bin is a piece of farming equipment used in conjunction with a tractor to collect reaped crops directly from a harvester during the harvesting process. Once full, the chaser bin would deposit harvested grain in field bins located around the property. The complainant described in some detail the manner in which a chaser bin was used on the property.55 87 The complainant also assisted in moving sheep between paddocks and performed an activity described as ‘stone rolling’, which involved the use of a roller to crush up stones in a paddock to help promote crop growth. 88 The complainant said there was not generally any specific routine for the work she did on the farm but during harvest time, that changed and ‘cleaning out the machinery and driving the chaser bin, moving augers, field bins, that type of thing was reasonably routine, given the type of season’.56 89 In cross-examination, the complainant said that either the accused or TP would ask for her help on the farm. 90 She said harvest would occur towards the end of the year, around December, and the start of the following year. Sometimes harvest would be pushed to February or March depending on weather.57 91 It was put to the complainant that as a result of spending a number of years on the farm, she became familiar with the machinery that was used during harvest. She agreed.58 She also agreed that the header or harvester would remain in the shed from roughly January through to November (presumably depending on when harvest was concluded and commenced).59 The complainant disagreed that she could access the machinery whenever she wanted.60 92 The complainant agreed that during harvest, TP and the accused would from time to time work into the early hours of the morning.61 She agreed there was ‘a point’ during harvest where chaser bin drivers were employed, but she could not 53 T87. 54 T33. 55 T34. 56 T34. 57 T80, 106. 58 T106. 59 T106. 60 T107-108. 61 T80-81. -- 24 of 77 -- [2025] SADC 106 23 remember their names.62 She did not remember a chaser bin driver staying in the house.63 The complainant maintained that there were times when she would drive the chaser bin, subject to school commitments.64 93 When it was suggested to the complainant that it was unlikely that she drove the chaser bin because of the need for the chaser bin to be driven at a speed that matched that of the harvester, the complainant said ‘that is why they got me to do it because I was the one that was most perfect with it’.65 The complainant agreed that the equipment used in harvesting was expensive equipment and that the chaser bin had to be driven within very close proximity to the harvester. The complainant rejected the suggestion that she did not drive the chaser bin.66 Counts 1 and 2 94 The complainant said that her relationship with the accused, as I have previously described it, remained that way until he began abusing her not long after J moved out.67 95 The first time anything happened with the accused was ‘late at night, everyone was in bed and [the accused] came into my room.’ The complainant was in bed. She thought the accused had picked up on the fact that she was not having a very good time living at the farm; that she was lonely and upset and he asked her if she wanted to be touched to which she responded ‘yes’ because she understood the accused to be asking her for permission to give her a hug.68 However, the accused then approached her bed and put his hand underneath the blanket and began rubbing her leg over the top of her clothes. His hand moved close to her ‘private area’. She pushed the blanket back and sat up. The accused told her to go into his room and she did, assuming they were going to watch television. She was told to be quiet as they walked across the floorboards. 96 Once in the bedroom, the accused pulled the blanket on his bed back and the complainant laid down. They watched television for a short time before the accused turned towards her and began rubbing her leg again ‘closer to her private area’. The accused then removed her pants and told her that she could not tell anybody. He then digitally penetrated her vagina with a finger (count 1), asking her if that had ever happened before. The complainant lied, telling him ‘my ex foster-brother, one of his friends’.69 The complainant’s evidence was that she thought she was telling the accused what he wanted to hear at the time. 62 T81. 63 T82. 64 T82. 65 T82. 66 T82-83. 67 T45. 68 T45-46. 69 T47-48. -- 25 of 77 -- [2025] SADC 106 24 97 The accused then put his hand up the complainant’s top and was touching her breasts. He removed his boxer shorts, returned to bed, got on top of the complainant and had penis vagina sex with her (count 2), ejaculating on her stomach. The complainant was scared and was trying to control her body shaking. She said it felt as if sex continued for a long time because it was painful.70 98 Thereafter, the complainant returned to her room. She wiped her stomach with a corner of the blanket on her bed.71 99 When asked whether there was any conversation with the accused ‘at this time’, the complainant said the accused remarked that if she told anyone what had happened, he would shoot her and kill himself. She said further the accused had a .22 calibre rifle behind the door of his bedroom. 100 The complainant agreed in cross-examination that J left sometime in 2000, around seven or eight months after the complainant arrived.72 She also agreed that the first episode of sex occurred after J had left and essentially ‘out of the blue’ and in the context of her having had no relationship with the accused.73 101 The complainant said there had been no prior flirting between her and the accused.74 102 She rejected the suggestion the accused never engaged in sexual activity with her.75 She also rejected the suggestion that firearms on the property were kept in a locked cabinet in one of the sheds.76 103 The following facts concerning firearms were agreed between the parties:77 Firearms 15. During the period when [AW] was in long term foster care placement with [AP] and [TP], [TP]: a. Was the holder of a firearms licence; and b. Was the registered owner of the following four firearms which were kept at [suppressed] Parkin Hall Road, Coomandook: i. A Telly .177 air rifle ii. A Lithgow .22 calibre bolt action rifle 70 T49-50. 71 T50. 72 T109. 73 T110. 74 T111. 75 T112. 76 T120-121. 77 P20, [15]. -- 26 of 77 -- [2025] SADC 106 25 iii. A sturm Ruger & Co .22 calibre self loading rifle iv. A Sportco 12 gauge single barrel shot gun. 16. On 13 August 2015, [TP] was still the holder of a firearms licence and was still the registered owner of the four firearms described in paragraph 14 above. 17. On 13 August 2015, police officers located a locked gun safe in a work shed at the property at [suppressed] Parkin Hall Road, Coomandook and inside the gun safe, police officers located the four firearms described in paragraph 14 above. Uncharged acts 104 After the events of this particular night, the complainant said that she was a bit ‘freaked out’ but thought the accused did like her after all. 105 Sex between them subsequently became commonplace. On an almost nightly basis, the complainant would sneak into the accused’s bedroom when the television show Law & Order came on at around 8:30pm. At that time, AP would go into the kitchen to make herself a cup of tea and TP would either be positioned in the lounge room such as to be unable to see up the staircase or would otherwise be asleep.78 106 The complainant described Law & Order coming on as her cue to go into the accused’s room to have sex.79 Sex would generally take place with the accused on top of the complainant. The accused would ejaculate on the complainant’s stomach.80 107 In cross-examination, the complainant said that sexual activity with the accused would happen almost daily and at roughly the same time, when Law & Order would come on. She said that ‘as soon as you hear that noise’, that was the ‘cue’. At this time, AP would get up off the sofa positioned at the bottom of the stairs and go and make herself a tea or coffee in the kitchen. The complainant would then sneak into the accused’s room after peaking around the corner to see if AP was on the sofa.81 There were no occasions when the complainant would sneak out of her room and see AP on the sofa at the bottom of the stairs.82 108 The complainant agreed that AP had issues sleeping and would go into the study of a nighttime to play cards on the computer. When asked how she would know where AP was, the complainant said she could hear the ‘mouse’ clicking83 and that the lino flooring downstairs would make a noise as AP moved across it.84 78 T50. 79 T50. 80 T51. 81 T86, 113. 82 T113. 83 T87, 118-119. 84 T114. -- 27 of 77 -- [2025] SADC 106 26 As I understood her evidence, the complainant also suggested that sometimes, instead of watching Law & Order, AP would use the computer in the study.85 109 The complainant said further that she would open her door slightly to get a sense of where AP was before crossing the landing into the accused’s bedroom.86 She would also listen for whether TP was snoring on the sofa.87 110 Asked in cross examination whether anyone ever saw her going into the accused’s room, the complainant said that there was one occasion when she was discovered in the accused’s bedroom:88 Q You say that basically after that at 8.30 every night when Law & Order chimed on the telly. A Yes. Q That you two would have sex basically every day for the next two years basically. A That's when I'd go into his room to, yes. Q Pardon. A I'd go into his room to, yes. Q Every night at 8.30 for two years. A Mm mm, yes. Q That's what you would have the jury believe. A Pretty much every night, yes. Q Never once did anyone see you go to his room. A Well, actually I was seen in his room one night. Q Pardon. A I was seen by his mother in his room one night at about 10 o'clock. Q What, having sex. A No, we were clothed but it was about to go to that but you can hear when someone, like, starts walking up the steps and I didn't know what to do, whether I was meant to hide in his cupboard or if I was meant to hide or something and he told me to stay there and he told his mother that I was talking to him. Q So that's at, what, 10 o'clock at night. 85 T119. 86 T114. 87 T115. 88 T112-113. -- 28 of 77 -- [2025] SADC 106 27 A I think so. I could be wrong on the time. I know it was late that night. Q So, what, you had gone in there at 8.30, had you. A I don't know. I know it was late at that particular time so, yes, I was caught in his room. Q Okay. Once. A Yes. Q In two years. A Yes. 111 When it was put to the complainant that someone sitting downstairs would be able to hear movement on the first floor because of the floorboards, the complainant said that she learnt which floorboards were creaky.89 However, she agreed that if a person was walking normally upstairs, that could be heard by someone who was downstairs. She said that a person ‘creeping’ around upstairs could not be heard90 and that, in any event, any creaking that was heard by someone downstairs might have been thought nothing more than the expansion or contraction of the timber flooring with weather.91 112 In re-examination, the complainant said that the occasion when AP found her in the accused’s room was after the sexual relationship between the accused and the complainant was on foot.92 Upon observing the complainant and the accused sitting on the bed, AP’s ‘face sort of changed a little bit’ and the complainant was told to get back into her bed.93 113 This evidence of uncharged sexual activity between the complainant and the accused was relied upon by the prosecution for the same non-propensity uses which I have earlier referred to,94 in accordance with Nieterink v The Queen (1999) 76 SASR 56. Again, senior counsel for the accused did not dispute the admissibility of the evidence for these purposes. 114 Accordingly, if I were to accept the evidence of the complainant that she engaged in uncharged sexual intercourse with the accused on a regular basis, this may help me to understand the setting and nature of the interpersonal relationship between the complainant and the accused within which the charged acts were allegedly committed; that the charged acts (with the exception of counts 1 and 2) did not ‘come out of the blue’ but, rather, formed part of what became a protracted and illicit sexual relationship between the accused and complainant; may lend plausibility to the complainant’s account by explaining how it was that she came 89 T115. 90 T115. 91 T120. 92 T145. 93 T146. 94 Paragraph [26] of my reasons above. -- 29 of 77 -- [2025] SADC 106 28 to acquiesce in or submit to sexual activity with the accused and why she made no complaint about his alleged conduct at the time. 115 I remind myself that these are the only permissible uses of the evidence of uncharged sexual activity and that I must not use the evidence to reason that the accused had a sexual interest in the complainant or that the accused had a propensity to engage in sexual activity with the complainant or a more general propensity to commit crimes of this description. I must not reason that, if I find the accused engaged in uncharged sexual activity with the complainant, he is the ‘sort of person’ more likely to have committed the charged acts. Of course, even if I were satisfied that the accused engaged in uncharged sexual activity with the complainant, that does not relieve the prosecution of the burden of satisfying me beyond reasonable doubt as to the commission of the charged acts. I cannot substitute my satisfaction for the commission of any uncharged acts with proof beyond reasonable doubt of a charged act or acts. Circumcision and fertility 116 The complainant described the accused’s penis as circumcised.95 117 She said he never wore a condom when engaging in sexual intercourse with her.96 118 In cross-examination, the complainant agreed that she was the mother of eight children, one of whom sadly passed away. The complainant fell pregnant with her first child when she was 17, a matter said by the defence to be demonstrative of her fertility in close proximity to the time throughout which the accused was engaging in regular unprotected sex with her.97 119 With respect to the complainant’s knowledge of the accused being circumcised – a fact agreed by the parties98 – it was suggested to her that she acquired this information as a result of a conversation with AP:99 Q You gave evidence to the prosecutor that [MSP] was circumcised, is that the case. A Yes. Q Can I suggest to you that there was an occasion when you were living at the [P]’s house where you were sitting at the kitchen table with [AP], [AP]’s mother-in-law and her sister [MB]. Do you remember an occasion where you were sitting around the table with those women. A No. 95 T51. 96 T51. 97 T92. 98 P20, [5]. 99 T64-66. -- 30 of 77 -- [2025] SADC 106 29 Q Can I assist you by saying that was an occasion where at school on that day you had been given a sex education class; you have no recollection at all. A No. Q Can I suggest to you that sitting at the table with these ladies, you told them that you had just participated in a sex education class at school. A Well, no. Q Can I suggest that you said to them that you were taught how to roll a condom out on a banana. A We didn't even do that at school. Q You've got no recollection of this. A No. No. Q Can I suggest that after you said words to the effect of being taught or shown how to roll a condom out on a banana, that you followed it up with words to the effect of 'The teachers said that male circumcision is no longer necessary and it wasn't done any more', and I take it you've got no recollection of such a conversation. A No. Q Can I suggest to you that [AP] told you about her nursing experience at the McLaren Vale District Soldiers Memorial Hospital in the '60s. A I didn't know she worked in a hospital. Q And did she give you a couple of examples about what happened to elderly men where they had not been circumcised and their foreskin had become infected. A No. Q You've got no recollection of such a conversation - A No. Q - as I understand your evidence, is that right. A That's right. Q Can I suggest that at the conclusion of [AP] telling you that, she told you that they were the reasons why none of her sons remained uncircumcised. A No. Q You simply can't recall a conversation so you're unable to say either way whether such a conversation - A It never took place. Q Are you saying such a conversation never took place. -- 31 of 77 -- [2025] SADC 106 30 A Yep. Q Or are you saying you simply can't recall such a conversation. A I don't remember any conversation like that taking place. Q Do you take it one step further and say that no such conversation ever occurred. A I don't believe it did. Count 4 120 The complainant said the next specific incident of sex with the accused she could recall took place after school one day. She was in the lounge room with TP when the accused came inside with bloodshot eyes, looking upset. The accused looked at the complainant and went upstairs to his bedroom, leaving the door just slightly ajar.100 121 The complainant asked TP what was wrong with the accused. TP replied that he did not know and then left the house to do something outside. The complainant went up to the accused’s bedroom and peeked in through the ajar door. She saw the accused sitting on his bed with the barrel of the rifle he kept behind his door in his mouth. The complainant said she could remember thinking ‘I am only 14, how am I meant to talk someone out of suicide. I can remember his finger being on the trigger’.101 122 The accused told the complainant he had split up with his girlfriend who, according to the complainant, he had only been with for about a week. The complainant spoke with the accused but could not remember what she said. She could not remember how it came about, but the rifle was placed on the bed and the accused undid his pants and asked her to give him oral sex. The complainant described what happened as a bit of a blur but said the accused came to be laying down on the bed and she performed oral sex on him for the first time (count 4). The accused ejaculated in her mouth.102 123 The complainant did not go into the accused’s bedroom that night, as she usually did, which she said she thought was ‘odd’, but she did go into his bedroom the following night at 8:30pm.103 124 In cross-examination, it was put to the complainant that, given the circumstances in which the accused entered the house, he must have thought that TP was still in or around the house when he asked the complainant to perform oral sex on him. The effect of the complainant’s evidence seems to be that it would have been apparent to the accused that TP was unhappy and had walked off.104 100 T51-52. 101 T51-52, 54. 102 T52-54. 103 T55. 104 T121-122. -- 32 of 77 -- [2025] SADC 106 31 125 It was put to the complainant that her account was a fabrication. She disagreed.105 Count 3 126 When the complainant went to the accused’s bedroom the night after she performed oral sex on him, she recalled the show ‘the X-Files’ playing on the television in his bedroom. 127 The accused removed his boxer shorts and the complainant’s pants. He digitally penetrated her vagina with a finger (uncharged) and then got on top of her and engaged in penis vagina sex with her and ejaculated on her stomach (count 3).106 128 The complainant said that, at this point in time, she saw herself as being in a relationship with the accused and she felt ‘pushed out a bit’ by the accused having a girlfriend in the lead up to counts 3 and 4.107 Count 5 129 Count 5 concerned an episode of sexual intercourse that took place with the complainant positioned on top of the accused. This occurred at 8:30pm one night after the complainant had gone into the accused’s room. She said there was a partially pornographic SBS movie on the accused’s television. 130 The accused put his hands up the complainant’s top prompting her to ask if her boobs were too small to which the accused replied ‘no any more than a handful is a waste’.108 The accused guided the complainant on top of him and had sexual intercourse with her. 131 The accused ejaculated but the complainant could not recall where other than to say it was not inside her.109 The complainant described this episode of sex as tearing her vagina because she had not had sex in this position previously.110 She said she did not say anything to the accused during sex because ‘with the age difference I felt as though he was in control’.111 132 The complainant was unable to say whether this incident occurred before or after the occasion on which she performed oral sex on the accused.112 105 T122. 106 T55. 107 T56. 108 T56. 109 T57. 110 T57. 111 T58. 112 T57. -- 33 of 77 -- [2025] SADC 106 32 Count 6 133 The complainant said that, apart from the accused’s bedroom, sex took place in a Volvo F12 truck at a location she identified by reference to map C of P1.113 134 The complainant was unable to say when the Ps acquired this particular truck. She said that she was out in the truck with the accused who wanted to see if she could double declutch and split shift the gears – a process the complainant described in detail.114 The accused explained to the complainant what was required and the complainant was able to successfully double declutch, which surprised the accused who called it a ‘fluke’. 135 The complainant had never driven a vehicle like the Volvo before but had driven another truck (referred to as the DAF truck) that was on the farm.115 136 After driving the truck for a short time, the complainant brought the truck to a stop. The accused told her he was proud of her and put his hand on her leg saying what a good job she had done. He moved into the back of the cabin of the truck and sat on the bed.116 The complainant followed him as she thought they were in a ‘pretty, somewhat serious’ relationship, and they engaged in penis vagina sex (count 6) with the complainant on her back. The accused ejaculated on the complainant’s stomach, who wiped down her stomach using her shirt.117 137 The complainant said this episode of intercourse took place not long after the Volvo was acquired.118 As will be seen, AP gave evidence as part of the defence case that the Volvo was only acquired in April 2002 – not long before the complainant left the farm. 138 In cross-examination, the complainant said that the accused had told her that shifting gears in the Volvo required the driver to double declutch. It was put to her that double declutching was not necessary in the Volvo. The complainant responded: ‘It’s what he told me to do and I wouldn’t know about it right now if he didn’t tell me. No-one else has told me. How else am I meant to know’.119 139 The complainant said she did not know whether the Volvo truck had a synchro-mesh gear box that did not require double declutching.120 140 The complainant said further that she thought this particular incident occurred around harvest time because she did not remember it being cold. She 113 The location of the ‘x’ marked by the complainant was not visible on the copy of P1 provided to me. 114 T60. 115 T60. 116 See photos 5 and 6 of P4. 117 T62. 118 T63. 119 T123. 120 T124. -- 34 of 77 -- [2025] SADC 106 33 agreed that harvest time was not April or May.121 She agreed she was only living on the farm for the 2000 and 2001 harvests.122 141 When pressed as to when the incident might have occurred, the complainant said she could not say whether it was in 2002 or how old she was.123 She said however that the truck was purchased during the time she lived on the farm and she believed she was ‘older’ and possibly closer to 15 or 16. 142 It was suggested to the complainant that the Volvo truck did not arrive on the farm until April 2002 which meant it was not around during any of the harvests for which the complainant was living at the property, to which she responded ‘what month did I leave’ and ‘nah I’m sure it was there longer than that’.124 The complainant said she was ‘sure’ the Volvo was on the farm for the 2001 harvest.125 143 In re-examination, the complainant said that there was another truck on the farm, referred to as the DAF truck, before the Volvo was acquired. The complainant spent time in the DAF truck and also drove it.126 She believed the DAF truck required double declutching.127 144 The parties agreed a number of facts relating to the Volvo:128 The Volvo Prime Mover 12. Records from the Registrar of Motor Vehicles indicate that [TP] purchased and registered a Volvo Prime Mover Registration Number WHZ 082 (as shown in Exhibit P4) on 6 April 2002. 13. Records from the Registrar of Motor Vehicles indicate that the previous owner of the Volvo Prime Mover Registration Number WHZ 082 was Teamcorp Pty Ltd. The registration of the vehicle expired 23 March 2002. 14. Photographs of the Volvo are produced at exhibit P4. These photos were taken by police who attended at [suppressed] Parkin Hall Road in Coomandook, South Australia on 13 August 2015. 145 AP gave evidence about the acquisition of the Volvo truck which I will set out in more detail later in these reasons. The effect of her evidence was that the agreement to purchase the truck was made in March 2002 but possession was not taken until sometime around 6 April 2002, consistently with the invoice D22 and the agreed facts. 121 T125. 122 T125. 123 T129. 124 T133. 125 T133. 126 T143. 127 T144. 128 P20, [12]-[14]. -- 35 of 77 -- [2025] SADC 106 34 Count 7 146 The last charged act about which the complainant gave evidence was said to have taken place in a header during harvest time when the complainant had been driving the chaser bin in a paddock towards the middle of map C of P1.129 In her evidence in chief, the complainant initially said that she thought this incident occurred after the incident in the Volvo truck but she could not be sure.130 147 The complainant said that she and the accused were close to finishing off the paddock when he told her to get into the header as the chaser bin would not be needed for the last bit of harvesting. The complainant got into the header with the accused and they harvested the remainder of the paddock. The complainant sat on a makeshift seat next to the accused.131 148 Once they had finished, the accused undid the blue Hard Yakka pants he was wearing. The complainant masturbated the accused (uncharged) and then got on top of the accused facing away from him. The accused had penis vagina sex with the complainant in that position. The accused ejaculated but the complainant was unable to say where.132 149 Although this was the last specific incident about which the complainant gave evidence, she said that her sexual relationship with the accused continued until she left the farm.133 150 In cross-examination, the complainant confirmed that she ‘thought’ the harvester incident occurred after count 6 but she could have been wrong.134 She said that she had probably driven the chaser bin during two harvests she was present for, not including the 1999 harvest.135 151 The complainant disagreed with the proposition that she had never driven the tractor with the chaser bin attached. She was firm that she had, commenting ‘I thought I did pretty good. I didn’t spill grain so I must have been doing something right’.136 She said she did not require much instruction to learn how to operate the tractor with the chaser bin, commenting:137 A Not a lot. It's a rabbit and a turtle, fast and slow, it's not hard, rabbit and a turtle - tortoise - there's a picture of a rabbit and a turtle, fast and slow. Q So not much teaching how to drive the tractor, that's right. 129 T63-64. 130 T63. 131 T64. 132 T65-66. 133 T66. 134 T126-127. 135 T136. 136 T137. 137 T137. -- 36 of 77 -- [2025] SADC 106 35 A Didn't need much. Q Didn't need much teaching to pull the chaser bin around the paddock and support the harvester. A No. Q Just jumped in and keep it near turtle and don't hit the harvester, is that what you are saying. A And maintain the same speed as the harvester because otherwise when the grain comes out if you're going too fast or too slow grain's going to go all over the floor, yes. 152 The complainant accepted that there was ‘a harvest’ when others were employed to drive the chaser bin but reiterated her evidence that she operated the chaser bin as well.138 She could not remember whether the chaser bin drivers stayed overnight at the farm.139 She ‘vaguely’ remembered the name ‘NB’ but did not recall him staying in the house during a harvest that he worked as the chaser bin driver. She rejected the suggestion that NB stayed in the spare room upstairs, reaffirming that was her bedroom throughout her time living at the farm.140 153 In re-examination, the complainant said the accused taught her how to operate the tractor and chaser bin. All that was required, she said, was to monitor the throttle of the tractor to maintain a consistent speed with the harvester and to operate the foot brake. The complainant had experience driving manual vehicles and another tractor on the farm before operating the chaser bin.141 Flirting 154 The complainant said she and the accused were flirtatious throughout the sexual relationship and she was surprised that was ‘not picked up on’.142 Leaving school and the farm 155 The complainant said she left school because she was having disciplinary issues and was ultimately suspended in circumstances she said involved her standing up for herself after being told off for yawning. The complainant explained: ‘I really started to get quite defensive about it because [the teacher] was so angry with me like “I’ll let you have it”’. The complainant was sent to the front office and told she could leave the school or she was otherwise going to be expelled. The complainant’s response was ‘They wouldn’t have one over me, I quit. They’re not expelling me, I quit’.143 138 T138. 139 T138. 140 T138-139. 141 T140-141. 142 T58. 143 T67. -- 37 of 77 -- [2025] SADC 106 36 156 The complainant also described the circumstances in which she left the farm. She said that one of the trucks had become bogged in a paddock and the accused was trying to recover it. The complainant went over to him and they were talking about the fact she would not be living at the farm anymore. The accused ‘kept saying his phone number, his mobile phone number to me over and over and over again until it stuck…so we could catch up in the future when we could’.144 157 The complainant said that the accused seemed upset she was leaving ‘in a way that you would be upset if your partner was to leave home’.145 She said further that AP was upset with her because she got caught out smoking, which it seems AP was unhappy with because she was asthmatic.146 158 After leaving the farm, the complainant stayed with a friend for a short time before relocating to Queensland to live with her mother. She remained with her mother for six weeks. 159 The complainant was unable to remember whether she had any phone contact with the accused whilst she was living with her mother.147 160 The complainant returned to South Australia after her time in Queensland but had no further contact with the accused.148 161 A number of documents prepared by Department for Child Protection staff who had dealings with the complainant, the accused or AP in the period leading up to the complainant leaving the farm were tendered by consent:149 Date-Time Nature of Contact and Summary 6/2/02 T/c from [AP] [AP] and [TP] will be going away for a fortnight from 22nd Feb. [AW]’s friend’s mother [JL] might be prepared to have her. Discussion around whether [AW] could stay home with [MSP] who is 28. I said I am not keen on this, even though I have no concerns about [MSP]. It would be too easy for [AW] to set him up. Date-Time Nature of Contact and Summary 19/2/02 T/c to [MSP] 144 T67. 145 T68. 146 T68. 147 T69. 148 T69. 149 P19. -- 38 of 77 -- [2025] SADC 106 37 Long discussion. [MSP] agrees that it is best for [AW] not to be at home while [AP] and [TP] are away. Agreed I will tell [AW] that she can’t stay at home with [MSP] because it is against the Dept’s principles for a teenage girl to be cared for by a single young man. Agreed [AW] can telephone [MSP] while she is staying with the [L] family, as long as it is OK by them. Date-Time Nature-Record of Contact 12/6/02 T/c from [Brown] (school) [AW] has been suspended for 2 days after misbehaving “severely” in class. If she reoffends it’s 5 days suspension. [Brown] keen for us to activate school to work transition next term, via workskill. Re careers week last week of term: [Brown] concerned that if [AW] is down in town when the school kids are, she will cause problems for other kids. [Brown] wants me to telephone [AP] to tell her about the latest suspension. Date-Time Nature-Record of Contact 12/6/02 T/c to [AP] re the above. [AP]’s response was “Well she can pack her bags then”. I asked if she was serious, and she confirmed that she was. I advised [AP] that I would look for alternate accommodation of [AW] immediately but that it could take a few days. Date-Time Nature-Record of Contact 20/6 to 1/7/02 Phone calls and discussions with various people about travel and other plans for [AW]. [AW] was suspended from school again. Decision made in consultation with [DB] that [AW] should leave for Mackay on Monday 1st July (a week earlier than anticipated). [AW] left [JL]’s home on Thurs 27th June and was taken by worker (JK) to stay with [JN]’s parents [B] and [TM] at Plympton. The [M]’s put her on the plane on 1/7. Date-Time Nature-Record of Contact 2/7/02 [DB] left message to say [AW] had arrived safely. -- 39 of 77 -- [2025] SADC 106 38 Date-Time Nature-Record of Contact 9/7/02 T/c from [MSP], 27, son of [AP] and [TP]. [MSP] not living at home any more and would be prepared for [AW] to come and live with him if she comes back from Queensland. I advised [MSP] that the Dept would not consider this to be in [AW]’s best interests. Long discussion during which it became clear the [MSP] is angry at his mother’s decision to end [AW]’s placement. I suggested [MSP] talk this through with his parents. 162 It is an agreed fact that the complainant’s placement with the Ps concluded on 15 June 2022.150 163 In cross-examination, the complainant was asked whether, having been told she was leaving the house by AP, she threatened to destroy AP and her family:151 Q Can I suggest to you that when you were told that you were leaving the house by [AP], you said to her words to the effect that you will destroy her and her family. A No, absolutely not. Q Have you made up these allegations against [MSP] in order to get revenge on [AP] for throwing you out of the house in June 2002. A No. The defence case 164 The defence called eight witnesses, a number of whom gave evidence about the accused’s character. It is unnecessary to set out the evidence of the character witnesses in any detail. It is sufficient for me to say that their evidence was to the effect that the accused had, and retains, a good reputation amongst those who know him for honesty and integrity.152 He was variously described as a helpful, quiet and calm man.153 He is not known to be someone prone to acts of violence, aggression154 (physical or emotional) or intimidation,155 which the defence say is relevant in particular to the plausibility of some aspects of the complainant’s account which involved the accused threatening to shoot her or himself. 150 P20, [8b]. 151 MFID24A, T153-154. 152 TT63 (EB); TT161 (GH); TT163 (BL); TT165 (AL); TT168-169 (TU). 153 TT62, 64 (EB); T158-159 (TC); TT161 (GH); T163 (BL); TT165 (AL); TT168 (TU). 154 TT63 (EB); TT72 (AP); TT158, 159 (TX); TT168 (TU). 155 TT62, 63 (EB). -- 40 of 77 -- [2025] SADC 106 39 165 Those who had the opportunity to observe the accused in the company of the foster children who stayed at the farm considered him to interact with them in an appropriate manner.156 166 It was an agreed fact that the accused has no prior convictions.157 167 The proper use of good character evidence in circumstances where an accused has neither given evidence nor an account to police is to factor it into an assessment of whether the prosecution has proved its case beyond reasonable doubt.158 The good character of the accused is relevant to the plausibility of the complainant’s allegations, including those aspects of her allegations that suggest he engaged in serious and threatening behaviour with a firearm. 168 Of course, people do commit crimes for the first time and evidence of previous good character cannot prevail against evidence of guilt which I find to be convincing and persuasive to the criminal standard. The evidence of AP 169 AP is the accused’s mother. She gave evidence about what might be described as the family’s general chronology, as well as living arrangements at the farm both before and after the complainant’s arrival. 170 AP was a trained nurse. 171 She married her husband, TP, in 1968.159 172 They had three sons, D (born in 1969), G (born in 1971) and the accused (born in 1973).160 AP described the accused as a ‘very quiet, inward, unassuming person…’.161 173 After their marriage, TP and AP ran a dairy farm at Mount Barker. 174 In 1994, they purchased the property at Parkin Hall Road, Coomandook. At that time, only the accused remained living at home.162 175 Around three or four years later, TP and AP acquired additional property on Buccleuch South Road, Coomandook (Buccleuch). They subsequently leased two more properties in the Coomandook area.163 176 The Parkin Hall Road and Buccleuch properties were cropping and livestock properties. At Parkin Hall Road, wheat, barley, canola, and at one stage peas, were 156 TT63 (EB). 157 P20, [6]. 158 Morton (a pseudonym) v The King [2025] SASCA 29, [4], [26]-[27]. 159 TT67. 160 TT67. 161 TT72. 162 TT68. 163 TT70. -- 41 of 77 -- [2025] SADC 106 40 grown. The leased properties were used for cropping.164 It appears from D21 and the evidence of AP that the Buccleuch property and the leased properties were some distance from the Parkin Hall Road property. This meant that when farming activities needed to be carried out on them, machinery and equipment had to be transported by road to those properties.165 177 Crops were generally sown when wet weather set in, ideally around April- May, and harvested following maturity and the onset of warm weather between late November and mid-January. Of course, late rain could delay harvesting because wet crops cannot be harvested and wet grain cannot be sold.166 178 AP said that harvesting was a very time consuming process and would often see work being carried out until the early hours of the morning.167 179 In around March 1999, the accused left Australia on an agricultural exchange program. He spent much of 1999 in Denmark, returning home for the 1999 harvest in around November.168 180 The accused, his father and AP all worked the Coomandook properties, with AP being responsible for book work and finances as well as being something of a self-described ‘gopher’ from time to time.169 Foster children 181 The P’s had a number of foster children during their time at Coomandook, commencing with the complainant’s half-sister, J.170 J began living with the Ps in 1996 and left shortly after her 19th birthday in May 2000 – probably in June.171 182 The complainant commenced living with the Ps in October 1999.172 She initially got on well with J but that changed over time as the complainant became jealous of J who, according to AP, she believed had ‘pride of place in our home rather than her’.173 183 AP described the complainant as a talkative and extroverted person ‘who needed to be the centre of attention, no matter how she got that attention’.174 164 TT70. 165 TT71, 84. 166 TT82-83; 103-104. 167 TT83. 168 TT71. 169 TT73, 87. 170 TT73. 171 TT73-74. 172 TT74. 173 TT75. 174 TT75. -- 42 of 77 -- [2025] SADC 106 41 184 AP said that the complainant exhibited behavioural difficulties at the Coomandook Area School, which became more prominent over time.175 185 In cross examination, it was suggested to AP that she did not have a great deal of positive feeling towards the complainant. AP said that was not entirely correct as ‘you can’t dislike somebody who is mentally ill. That’s counterproductive’.176 186 AP agreed that she considered J like a daughter and that the complainant had become jealous of J after some time living at the Ps.177 Tension had developed between J and the complainant.178 The Parkin Hall Road house 187 After moving into the Parkin Hall Road house, the Ps undertook some renovations however the first floor was already constructed. AP said that the first floor had timber flooring throughout. The stairs were a timber construction with a carpet runner.179 188 By reference to P3, AP explained some differences between the layout of the house as depicted in the photographs taken in 2015 and when the complainant resided with the Ps. 189 As to the lounge room, AP explained there was a sofa where the television could be seen in exhibit P3, photograph 5, that faced the opposite wall along which there was another sofa. The television was in fact positioned in the corner of the room to the right of the fireplace as one looks at photograph 5. When watching television together, TP and AP would sit on the sofa that was positioned where the television is shown in photograph 5. TP would sit closest to the fireplace and AP next to him.180 From that position, if AP looked to the right, she would be able to see directly up the stairs to the first floor with the view depicted by photograph 10 of P3.181 She said further that when in the lounge room, movement in the upstairs bedrooms could be heard. She said ‘you could hear footsteps and the boards creaked’. She also thought the house might have creaked during periods of contraction or expansion of the timber.182 190 AP did not think it was possible to hear people moving around the house on the ground floor from the first floor because the ground floor had a concrete sub- floor and was carpeted.183 175 TT75. 176 TT102. 177 TT103. 178 TT103. 179 TT80-81. 180 TT79. 181 TT79-80. 182 TT81. 183 TT81-82. -- 43 of 77 -- [2025] SADC 106 42 191 AP said that when the complainant first arrived at the Ps she occupied the spare bedroom on the first floor.184 This was consistent with the complainant’s evidence. However, AP said that once J departed in around June 2000, the complainant was moved to the spare bedroom on the ground floor where she remained throughout her tenure with the Ps.185 It will be remembered that the complainant’s evidence was that she remained in the upstairs bedroom adjacent the accused’s bedroom for the duration of her stay and it was essentially the co- location of the bedrooms that facilitated her sneaking into the accused’s room on an almost nightly basis to engage in sexual intercourse with him. 192 In cross-examination, AP maintained that the complainant was re-located to the spare, ground floor bedroom, after J left the farm because she felt better able to control the complainant and her activities in the downstairs bedroom. AP said she ‘felt safer’ with the complainant downstairs, remarking that the complainant was a volatile person with a temper; would break things; was not reliable and, inferentially, was suspected of stealing things from AP’s bedroom.186 AP agreed that she had said during a trial in November 2018 that with J initially being in the downstairs bedroom, the complainant ‘went upstairs for a couple of weeks’ ‘but then moved back downstairs’.187 I set out a further exchange in relation to evidence previously given by AP on the topic of bedrooms: Q And do you agree that in the course of evidence in February of 2019, you in fact agreed that [J] had gone upstairs, [J] was in the upstairs bedroom, not the downstairs bedroom when [AW] was there. A They used to go from one bedroom to another with one another. That didn't mean they slept in those bedrooms. They slept in their own rooms but they were often doing whatever teenage girls do in the bedrooms, one or other bedroom. Q These were questions in regards who would sleep where because you're aware that you know it's an issue as to where [AW] was sleeping, don't you. A [AW] - if you look at [AW’s] evidence, you will find that she said nothing happened before [J] left. So I don't know what you're getting at. 193 The last part of the answer extracted above, prompted questioning from counsel about the extent of AP’s knowledge of the case against her son: Q You've talked about the evidence in this case with your son, haven't you. A Of course. Q You've read affidavits in the case. A I have. 184 TT78. 185 TT78. 186 TT121. 187 TT121. -- 44 of 77 -- [2025] SADC 106 43 Q You've talked about what evidence has been called in the previous trials in this case with your son, haven't you. A Of course. Q You've tailored your evidence on where [AW] slept overnight in order to meet the facts of the prosecution case, haven't you. A I have not. I have definitely not lied to the court. 194 AP also said that before the complainant began living at the farm, J ‘oscillated between bedrooms’ and was free to use either the downstairs or upstairs spare room as she pleased.188 195 It can be seen from exhibit P1 that if the complainant was relocated to the spare bedroom on the ground floor after J’s departure, she would have needed to walk past the sofa where TP and AP sat of a nighttime in order to make her way up the stairs and into the accused’s bedroom. Equally importantly, because the accused’s bedroom door is at the top of the stairs and visible from where the sofa was positioned, AP at least would have been able to see the complainant enter the accused’s bedroom. 196 If AP’s evidence as to the complainant’s relocation after J’s departure is a reasonable possibility, it creates significant issues for the plausibility of the complainant’s account. Harvesting and the purchase of the chaser bin and yellow Volvo 197 AP gave evidence about the harvesting method used at the Coomandook properties. In the early years, harvested grain would be conveyed by the header to field bins around the properties and then transferred to a truck for delivery to silos.189 This process involved a disruption to the harvesting activities of the header whilst it transported harvest grain to field bins, so in 2000, a chaser bin was purchased. The chaser bin was operated by a tractor that would be driven alongside the header so that harvested grain could be deposited directly into the chaser bin. The tractor and its attached chaser bin needed to be driven at the same speed as the header and obviously enough care had to be taken to avoid a collision between the two pieces of machinery which operated in close proximity to each other.190 198 The benefit of the chaser bin was that the header could harvest continuously without the need for interruption to convey harvested grain to field bins. That became the job of the chaser bin operator191 who would either deposit grain from 188 TT121. 189 TT83. 190 TT83-84. 191 TT83-84. -- 45 of 77 -- [2025] SADC 106 44 the chaser bin into field bins or, if the grain truck was available, directly into the truck for transportation to the silos.192 199 AP said that in the years 1999 to 2002, the accused would drive the header. The Ps engaged others on a seasonal basis to help with harvest. In particular, a nephew of AP – NB – was retained to drive the chaser bin for the year 2000 harvest. When not working, NB slept at the Parkin Hall Road property in the spare upstairs bedroom.193 200 For the 2001 harvest, NB was again engaged as the chaser bin operator. Another person, AS, also operated the chaser bin because neither NB nor AS were able to do so on a full time basis.194 AS stayed at the Parkin Hall Road property ‘a few nights’ during this period, and slept ‘upstairs’.195 201 AP said that during harvesting activities, she did not see the complainant operating the chaser bin.196 202 AP gave evidence that the yellow Volvo truck which is at the heart of the complainant’s allegations relating to count 6 was purchased by the Ps in March 2002, but delivery was not taken until later in April 2002. That was to allow the previous owner of the truck to complete an outstanding contract.197 203 The accused moved out of the Parkin Hall Road property and into the Buccleuch property around the time that the Volvo was acquired.198 Thereafter, the accused would sleep at the Buccleuch house. 204 In cross examination, AP agreed that harvesting of their 4,500 odd acres could take anything from 30 to 45 days subject to weather.199 205 As to the Volvo, AP said in cross examination that after full payment was made on 6 April 2002, the Ps took possession of the truck but it was then driven to Port Victoria to have a Hastings bin built and subsequently had hydraulics fitted in Adelaide. She thought the truck would not have been back on the farm until the end of April / mid-May 2002 and it would have probably remained in a shed until July unless used to take seed to the air seeder.200 206 AP agreed that the complainant would have been around for two harvests where the chaser bin was used – the 2000 and 2001 harvests.201 AP said the complainant barely went outside the house after first arriving in October 1999 and 192 TT106. 193 TT85. 194 TT86-87. 195 TT87. 196 TT87. 197 D22; TT92-94. 198 TT95. 199 TT106. 200 TT109-110. 201 TT114. -- 46 of 77 -- [2025] SADC 106 45 did not participate in that year’s harvest ‘but the next harvest, she did’,202 although for ‘99% of it she was at school…’.203 AP said however that Christmas school holidays at the time ran from the week before Christmas through to the end of January.204 207 Later in her cross examination, AP agreed that when harvesting activities were conducted at any of the other three properties owned or leased by the Ps, she did not remain on-site at all times, but would visit the harvesting sites from time to time to take food to the workers or when parts were needed. She agreed further that she said during a trial in this Court in November 2018 that when farm workers would come inside they would say ‘For heaven’s sake, why don’t you get rid of this kid. We can’t do anything because she’s always in the way’.205 AP said however that the complainant was not always outside but was quite often an annoyance when ‘they were trying to achieve something’.206 Nightly routine 208 Focusing on the years 1999 to 2002, AP said her nightly routine involved sitting down to watch television at around 8:30pm, when the show Law & Order came on. Although she was a tea and coffee drinker at that time, AP said (contrary to the complainant’s evidence) that she would not drink tea or coffee after around 4pm.207 209 AP said the complainant’s bedtime throughout the duration of her stay at the Ps was 9:30pm.208 Guns 210 With reference to the complainant’s allegations relating to count 4, AP said that there were guns on the farm but they were kept in a gun safe in a workshop around 50 metres from the residence. Guns were not permitted inside the house. AP was the superintendent of the combination lock to the gun safe and did not give the combination to the accused. She only gave the combination to her husband when she became ill in 2001. AP said this protocol was adopted because she had a particular aversion to guns.209 Curiously, she did however permit NB to keep his guns in the house when he would visit, provided they were always with him.210 211 In cross examination, AP said that the four firearms kept in the gun safe had been inherited. She said ‘I don’t know why we bothered to keep them’.211 202 TT114. 203 TT114. 204 TT114. 205 TT115. 206 TT115. 207 TT87-89. 208 TT89. 209 TT90-91. 210 TT91. 211 T116. -- 47 of 77 -- [2025] SADC 106 46 212 AP agreed that she understood that when renewing a firearms licence, it was necessary to justify the need for a firearm.212 213 AP recalled only two occasions on which one of the firearms was used and that was to euthanize injured sheep. The complainant was not present for this exercise and AP did not think that the complainant would have seen the rifles stored in the gun safe. She said however that the complainant would have seen NB’s rifle, which was exactly the same as one of the rifles owned by the Ps.213 Circumcision discussion 214 AP gave evidence that the complainant came home from school one afternoon speaking about a sex education class that had been convened. AP’s sister-in-law and mother-in-law were visiting. AP thought the complainant had raised this to shock her 84 year old mother in law.214 According to AP, the complainant went on to talk about circumcision and explained that the teacher had said that circumcision was not necessary, which prompted AP to tell the complainant about an experience she had as a nurse where a 67 year old man had to be circumcised. She also told the complainant that her children were circumcised ‘because that was [reinforcing] my opinion that it was necessary’.215 215 This topic was revisited in cross-examination:216 Q I mean no disrespect, I'll call it the circumcision discussion. That story is a complete lie, isn't it. A Oh, for heaven's sake, no, it is not a lie. Q And isn't it the case, when you've recounted that story before, you also told [AW], not just that your own boys were circumcised, but that your husband wasn't circumcised. A That's correct, I did. Q Help me again with why it was important that you disclosed such personal details to a girl who must have been under the age of about 16. A Because I was offended by the attitude of a teacher telling a child in sex education that it was not necessary to circumcise. Q Why the need for the personal details. A Because it was relevant to her at the time, she needed to understand why I felt that way. Q Why tell her about your son being circumcised. 212 T117. 213 T118-119. 214 T91-92. 215 T92. 216 TT127-128. -- 48 of 77 -- [2025] SADC 106 47 A Why not? I mean, I had the opinion that it was necessary, I needed to demonstrate to her that I had carried out that thinking. Q But why did you need to demonstrate it to her, why was it so important. A Because when I was nursing, I watched a 67-year-old man cry after circumcision because he had - the foreskin had stopped him urinating correctly and he had to be circumcised and that poor man laid in that bed and cried, and that had a marked impression on me. It was downright sad and should never have happened. Q Help me to understand, help us to understand that telling that story about the elderly man would have reinforced your point without the need for giving personal details about the male members of your family, wouldn't it. A Probably she would have asked whether they were, I don't know, I cannot tell you. Q That story is as improbable as it is untrue, isn't it. A No, it is not improbable - OBJECTION: MR HENCHLIFFE OBJECTS MR HENCHLIFFE: It's not a proper question. HIS HONOUR: I think it's a matter for submission. MR HENCHLIFFE: One is a submission and then there is a question. HIS HONOUR: The first part submission, Ms Moore, second part proper. XXN Q It's untrue and you've made it up. A That is not untrue. In fact, my sister-in-law and probably even my mother-in-law, who will turn 107 in a couple of days, can still tell you about it. It is not a lie. Q And I'm going to suggest to you you've come here to give evidence to assist your son, knowing important features of the evidence having discussed them with him. HIS HONOUR Q You need to answer that question please, [AP]. A How do I answer something that I have gone over and over and over and over again? It is fact, it is true. Observations of the accused and complainant 216 AP did not observe any flirtatious behaviour between her son and the complainant. She saw their interactions as consistent with a ‘brother-sister -- 49 of 77 -- [2025] SADC 106 48 relationship’. She said there was never an occasion where she found the complainant in the accused’s bedroom.217 The complainant leaves the Ps’ farm – motive to lie 217 By 2002, the relationship between AP and the complainant appears to have become fractious. The complainant was having disciplinary troubles at school and was suspended and AP was having difficulties dealing with her. The complainant refused to get an education which AP considered essential for foster children.218 218 AP said there came a point essentially where she had a ‘gutful’ and made contact with the social worker who had oversight or responsibility for the complainant, Ms Kenny. Ms Kenny told AP that arrangements would be made for the complainant to be relocated but it would take time.219 AP’s evidence on this topic was consistent with the 12 June 2002 file note (forming part of P19) which recorded Ms Kenny advising AP that it would take a few days for new accommodation to be arranged for AW. 219 AP did not immediately tell the complainant that she was going to be leaving as she ‘didn’t want the animosity’ so she refrained from informing her until a couple of days before the move. In the context of the complainant mentioning something about ‘tomorrow’, AP told her ‘you won’t be here’. Nothing further was said at that time, but the complainant later had the following exchange with AP:220 Q And what was said next if - anything you can recall. A Nothing at that stage. Later on, she told me she'd get me for what I had done and when I said 'Very smart, [AW]. How are you going to do that?', the answer was 'I can because I'm a girl'. Q When she said that, where were you. A Standing at the base of the stairs. Q In the house. A In the house. Q And how long was that before - that she left the house. A That was the day she left. 220 Remaining with the question of motive more generally, in cross-examination, AP agreed that she had positive feelings towards her son and wanted to support him.221 217 TT96. 218 TT96. 219 TT97. 220 TT98. 221 TT102. -- 50 of 77 -- [2025] SADC 106 49 221 In re-examination, the following exchange occurred: Q It was put to you that you've come here to lie. Was that your purpose in giving evidence. A I hardly think so. Q Have you told us the truth. A I have told you the truth and I - Q Are you aware that would be a serious crime for you to lie in court. A Yes, I'm fully aware of that. Q Have you done that. A No, I have not. NB 222 NB is a cousin of the accused. 223 At the time of giving evidence, NB was a paramedic with the South Australia Ambulance Service.222 224 NB gave evidence about work he performed on the farm during the 2000 and 2001 harvests, when he was engaged to drive the chaser bin which had been purchased by the Ps in 2000. He stayed on the farm when working throughout these harvests and occupied the spare bedroom at the top of the stairs. 2000 harvest 225 NB said that he assisted with the 2000 harvest over a period of ‘a couple of months’, which involved around 40 days of work at the Parkin Hall Road property and the other P properties.223 226 Prior to commencing work, NB was instructed by the accused about driving the tractor that towed the chaser bin. He described the process of learning to drive the particular tractor used for this purpose as a difficult one because of the ‘crab steer’ functionality which made learning to manoeuvre the vehicle challenging.224 NB received instruction from the accused over a number of days until he was confident driving. 227 NB described driving the chaser bin in the harvesting process as a ‘precision skill’ as it had to be driven ‘alongside a very big harvester or header’ so as to align the chaser bin with the auger of the harvester during the grain transfer process, 222 TT130. 223 TT132. 224 TT132. -- 51 of 77 -- [2025] SADC 106 50 which took place whilst both vehicles were moving. He said he did many ‘dry runs’ with the accused to ‘make sure we could align ourselves and do it properly’. 228 NB said that adjustments to the speed and line of the tractor would need to be made on the fly to accommodate the movements of the harvester or obstructions in paddocks. 229 The operation of the tractor required use of foot pedals, the hand throttle and gear lever.225 230 As the holder of a medium-rigid heavy vehicle licence, NB was licensed to drive the tractor and its chaser bin on public roads.226 He agreed in cross examination that, to his knowledge, no licence was required to drive a farm vehicle on private property.227 231 NB stayed at the farm whilst working and would sleep in the bedroom to the left of the stairs on the first floor – that is, the bedroom that the complainant said she occupied during her time at the P residence.228 232 In cross-examination, NB said that when he was taught by the accused to drive the tractor on the farm, he already had experience driving trucks and tractors on his family’s own farm.229 233 NB agreed that when driving the tractor and chaser bin during harvesting that the speed of travel was determined by the speed at which the harvester was being driven. He acknowledged that the ‘hare’ and ‘turtle’ symbols were used in conjunction with throttle levers in tractors to indicate speed.230 2001 harvest 234 In 2001, NB’s friend, AS, assisted with the harvest as NB was unable to do the ‘full season’.231 NB said AS was the ‘predominant driver’ but he filled in when AS had other commitments.232 235 NB estimated that he worked 15-20 days during the 2001 harvest. 236 He again stayed overnight in the bedroom on the first floor to the left of the stairs.233 NB’s evidence was firm and clear: he only ever slept in the spare bedroom at the top of the stairs.234 225 TT135. 226 TT132. 227 TT141. 228 TT138. 229 TT144. 230 TT145. 231 TT137. 232 TT137. 233 TT139-140. 234 TT141. -- 52 of 77 -- [2025] SADC 106 51 237 He described the first floor of the house as ‘very noisy’ and said that ‘…it creaks every single step you take to the point that at night-time you’d be very reluctant to go and get a glass of water or walk downstairs for a wee for fear of waking the whole house up.’235 238 In cross-examination, NB said he had stayed at the farm prior to the harvests he worked and would often sleep in a swag outside.236 239 It was put to NB that he might be mistaken about the bedroom he occupied when staying at the farm to which he responded: ‘No, absolutely not. I’ve never slept in any other room in that house.’237 The complainant 240 NB said that the complainant slept in the bedroom downstairs during the harvests he worked.238 241 He said that did not observe anything unusual as between the accused and the complainant during his time staying at the farm.239 242 NB never saw the complainant driving the tractor or pulling a chaser bin at harvest time.240 Firearm 243 NB said that he took his Ruger 1022 LR self-loading rifle with him when working the harvests. He occasionally took the rifle inside the residence to clean it or when preparing to go shooting. When the rifle was kept inside, it was ‘probably’ stored under his bed. The rifle was otherwise with him or locked in his car.241 244 In cross-examination, NB agreed that his rifle was kept in an ‘opaque’ fabric carry case. He said however that he would have had the rifle ‘out quite a lot’ when the complainant was at the house. He would also occasionally take the rifle in the tractor with him during harvesting activities.242 245 NB said that taking the rifle into the house with him was not something he raised with TP or AP in advance or for which he sought permission. He said further that there would have been occasions where he left the rifle in the upstairs bedroom unattended.243 235 TT141. 236 TT142. 237 TT146. 238 TT140. 239 TT140. 240 TT140. 241 TT139. 242 TT143. 243 TT146-147. -- 53 of 77 -- [2025] SADC 106 52 JN 246 As I have said earlier, JN and JoN were foster parents to the complainant and her younger sister T for around 8 years, before the complainant was re-located to the Ps. The Ns also fostered the complainant’s first child, AB, when he was a baby. The complainant gave birth to AB when she was 17. 247 JN said that during the time the complainant lived with the N family, she did not beat the complainant and she did not consider her husband to have a drinking problem or to be an alcoholic.244 248 JN said that the complainant was placed with the Ps after she and her husband asked for the complainant and T to be separated. Thereafter, the Ns would take T to visit the complainant at the Ps and would take the complainant with them to different places.245 249 In cross-examination, JN said that prior to attending court to give evidence, she was not aware that the complainant had alleged that she was beaten by her. She agreed that when the complainant was moved to the Ps’ house, there had been mutual violence between the complainant and her sister, T, and the relocation was intended to avoid further violence between them.246 250 JN denied disciplining the children using a metal ruler and denied striking the complainant with a wooden spoon. She did recount an episode during which, in frustration, she hit a bench with a wooden spoon which caused the spoon to break. She said this was because of the behaviour of the complainant and T and that after the spoon was broken ‘we all laughed’.247 251 JN gave evidence that she and her husband began caring for AB when he was just 5 days old. They invited the complainant to live with them and ‘learn how to look after him’ which she did for a couple of days before again leaving. JN denied that there came a time where she precluded the complainant from seeing AB and said further that there were many occasions where she took AB to the complainant so that she might see him.248 Addresses 252 I do not propose to repeat at length the addresses of counsel. I will endeavour to summarise only the main points they each advanced. I have however carefully read the transcript of counsel’s addresses since hearing them on Monday, 5 May 2025. 253 Ms N Moore, who appeared for the prosecution with Mr J Powell, commenced her address by acknowledging that the prosecution case depended 244 TT151. 245 TT151. 246 TT152. 247 TT152. 248 T153. -- 54 of 77 -- [2025] SADC 106 53 entirely on acceptance of the credibility and reliability of the complainant’s evidence. 254 Ms Moore accepted that the effect of D12, D13 and P18, in light of the complainant’s evidence in cross-examination, was that she had told lies to her mother about engaging in sexual activity with LN. Ms Moore said further that when the complainant gave evidence denying having made those statements, that too was a lie. Ms Moore abandoned any suggestion that the complainant may have simply forgotten making false allegations about LN to her mother. Rather, she accepted that the complainant had been deliberately untruthful in court when cross- examined on this topic. Ms Moore submitted however that the complainant’s in court lies in fact supported her credibility because they demonstrated that she was unwilling to repeat in court a false allegation she had previously made out of court. 255 Ms Moore argued that the false allegations made by the complainant to her mother were lacking in detail and were ‘off the cuff’ remarks that the complainant never pursued further. 256 The significance of the lies to assessment of the complainant’s credibility were, it was submitted, to be understood in the context of the complainant’s unfortunate personal history, including being placed in foster care from a very young age. 257 Ms Moore also emphasised the time at which the false allegations were made. Exhibit D12 recorded an allegation made to the complainant’s mother in 1999 and again in 2001. Ms Moore pointed out that in 1999, the complainant – on her evidence – no longer wanted to live with the Ns. The repetition of the allegation in 2002 shortly before D12 was composed (in August 2002) might, it was suggested, reflect that the complainant did not want to be returned to the Ns after her placement with the Ps concluded. Of course, these explanations for the false allegations – which again were not advanced by the complainant – could not logically explain the making of the allegations in 2001 and again in 2008. 258 Ms Moore submitted that, notwithstanding the complainant’s lies on this topic, it remained open to me to accept her evidence in relation to the charged acts which she characterised as detailed, compelling and comprised of unusual facts and circumstances suggesting it was both credible and reliable. Ms Moore pointed to the complainant’s evidence about feeling lonely and upset when she first moved to the Ps, and the disparity in the treatment of the complainant and J as setting the context within which the complainant described the abuse commencing after J had left the house. 259 Ms Moore highlighted the complainant’s comments to the accused on the occasion the subject of count 1, during which she spontaneously made up a story that she had engaged in such activities with others, as indicative of the genuineness of her account. Ms Moore said that the complainant’s evidence about the threats made to her by the accused in the aftermath of counts 1 and 2 had the ‘ring of truth’ -- 55 of 77 -- [2025] SADC 106 54 to it. She advanced the same submission with respect to the complainant’s evidence about count 4 and how she thought to herself as a 14 year old, what was she to say to an adult who was threatening to commit suicide? Ms Moore described such details as ‘resplendent of a true account…’.249 260 The complainant’s evidence in relation to counts 6 and 7 was also said to be embedded with esoteric details about the operation of the Volvo truck and the tractor and chaser bin which was incompatible with the allegations being a product of fabrication. 261 Reliance was further placed on exhibit P19, a series of entries in what is described as a ‘continuation sheet’ kept by Family and Youth Services in relation to the complainant. In particular, Ms Moore submitted that the entry of 9 July 2002 in which the accused offered for the complainant to live with him in the event she returned from Queensland, and which came on the back of earlier discussion in February 2002 between Ms Kenny and the accused to the effect that it would not be appropriate for the complainant to be at home with the accused whilst his parents were away, demonstrated the accused’s ‘close relationship’ with the complainant. This was said to ‘dovetail’ with the complainant’s evidence that when she left the Ps, the accused repeated his mobile phone number to her over and over again so as to embed it in her memory. 262 With respect to the evidence of JN, Ms Moore submitted that the episode that involved JN breaking a wooden spoon on a bench in frustration tended to indicate that ‘all was not entirely right in the home’ which was, in a sense, unsurprising because, as the complainant explained, she did not ‘give it to them easy’. Ms Moore’s overarching submission was that the evidence relating to the living conditions at the Ns, and who was right about them, which may in any event be a matter of perception, would not assist me in resolving the central issues in dispute. 263 Ms Moore argued that the letters written by the complainant to her son AB and to JN, in which she spoke positively about the Ns, did not undermine her evidence of the alleged sexual abuse by the accused and were explained by the complainant’s evidence that ‘if she didn’t write them in a particular way…there would be consequences’.250 264 Ms Moore characterised the complainant’s evidence that the accused was circumcised, which is an agreed fact, as demonstrating esoteric knowledge on her part that could only have been obtained through non-innocent means. Ms Moore suggested that AP’s evidence about the conversation she had with the complainant about sex education that led to AP revealing that her sons were circumcised, and so providing an alternative explanation for the complainant’s knowledge, was as improbable as it was untruthful. 249 TT182. 250 TT191. -- 56 of 77 -- [2025] SADC 106 55 265 Finally, Ms Moore submitted that the complainant’s evidence about driving the Volvo truck and the tractor and chaser bin was so specific as to be indicative of a genuinely recalled memory which in turn supported the complainant’s evidence about the commission of counts 6 and 7 in the circumstances she alleged. 266 Mr Henchliffe KC, who appeared for the accused, commenced his address by submitting that there was nothing in the complainant’s account that would give me sufficient confidence to conclude that the charges had been proved beyond reasonable doubt. 267 Although acknowledging that I would not necessarily need to resolve the conflict in the evidence of the complainant and JN as to the living conditions at the N’s, Mr Henchliffe argued that the complainant’s evidence about her time with the family and being subjected to beatings, was inconsistent with the fact that her sister T remained living with the Ns until she was 17; continued to have contact with them thereafter; and that the complainant had her son AB live with the Ns. It was submitted that the letters the complainant had written to AB and JN (D10 and D11) were inherently incompatible with the complainant’s evidence about being beaten by the Ns or, at the very least, showed the complainant’s capacity for deception. 268 Mr Henchliffe added that, on the complainant’s account, it was she who decided to leave the Ns’ house when aged 13, which would portray her as someone prepared to stand up for herself, in contrast to her evidence about her reaction to events at the Ps. The complainant’s behaviour at Coomandook Area School, including that which ultimately saw the imposition of the suspension that resulted in her leaving the Ps, showed that she was far from timid and was accustomed to standing up for herself, which rendered her acquiescence and submission in the alleged abuse implausible. 269 Mr Henchliffe described the complainant as having an ‘extroverted’ and ‘defiant’ personality when younger which he said sat with AP’s evidence about the threatening remark made by the complainant when she was told she would be leaving the Ps. 270 Mr Henchliffe then turned to the lies told by the complainant in relation to LN on four occasions, namely, in 1999, 2001, 2002 and 2008. He submitted that not only did the complainant lie to her mother when making the allegations; she lied in court when she denied making the allegations to her mother. Mr Henchliffe argued that the complainant’s denials in court of having made the allegations against LN could not be attributed to forgetfulness. He submitted that the prosecution’s hypothesis as to the explanation for the complainant lying in court was speculative and that she may well have lied because she knew that revealing she had made false allegations of a similar kind to those she makes against the accused would reflect poorly on her credibility as a witness. Mr Henchliffe pointed out that at the time the complainant denied making the allegations to her mother, she could not have known that the defence could establish that she did in fact make the allegations. -- 57 of 77 -- [2025] SADC 106 56 271 Mr Henchliffe put that irrespective of the explanation, the nature and circumstances in which the lies were told is devastating to the complainant’s credibility. 272 Moving to AP’s evidence about the ‘circumcision conversation’, Mr Henchliffe submitted that it was neither improbable nor fanciful. He submitted that whilst it might have been thought unusual if the older women at the house had initiated conversation with the complainant about the topic, AP’s evidence made it clear that it was the complainant who raised the issue and AP’s comments were merely responsive. Mr Henchliffe argued that AP’s reference to her sons was simply an example to illustrate the strength of her views on the topic. He said further that, putting the conversation to one side, the complainant’s evidence about the accused being circumcised deserved little weight because it was equally consistent with her making an educated guess that was half as likely to be correct as it was incorrect and that, in any event, before the evidence could be used as demonstrative of esoteric knowledge, it would be necessary for the prosecution to exclude the possibility of innocent observation, given the complainant lived with the accused for more than 2 years. 273 Mr Henchliffe then analysed the complainant’s evidence about the ‘pattern’ of alleged abuse, which she said occurred on an almost nightly basis when AP would sit down to watch the show ‘Law & Order’. Mr Henchliffe made the following points about this aspect of the complainant’s evidence: 1. There was a paucity of detail concerning the sexual activity which the complainant alleged occurred on a nightly basis and the circumstances in which it took place. 2. It was improbable that the complainant could have snuck into the accused’s room without detection on an almost nightly basis for such an extended period of time when, in order to get to the accused’s bedroom even if she was occupying the spare room upstairs, she would have to traverse the landing at the top of the stairs which, together with the accused’s bedroom door, was visible to AP from where she sat to watch television. 3. The evidence was that the upstairs floorboards were ‘creaky’ such that any movement from the complainant’s room to the accused’s room was likely to rouse attention. 4. The complainant’s evidence that AP would get up and make a coffee or tea when Law & Order came on such that she would miss the start of the program, was counter-intuitive given her interest in the program. 274 Mr Henchliffe then dealt with the evidence relating to each count. I summarise his key contentions: 1. Counts 1 and 2: the complainant’s account that the accused did not speak with her; had no relationship with her; and was rude and arrogant was -- 58 of 77 -- [2025] SADC 106 57 incongruous with her suggestion that, out of the blue one evening and without any ‘testing of the waters’, he would take the drastic risk of digitally penetrating her and then engaging in penile vaginal sexual intercourse with her not knowing what her response might be (but bearing in mind the evidence about the complainant’s general disposition and assertiveness), particularly with TP and AP in the house (albeit, on the complainant’s evidence, in bed asleep). Mr Henchliffe also criticised the complainant’s evidence that, thereafter, the accused – who had a .22 calibre rifle behind his door – threatened to kill her and himself, arguing that it was contrary to the evidence of the accused’s good character and hence implausible. 2. Count 4: the scenario described by the complainant, which involved the accused being suicidal after breaking up with his girlfriend of one week was again incompatible with the evidence about the accused’s general disposition given by those who know him. The complainant’s inability to remember what she said to the accused and the absence of detail about the mechanics of the interaction betray her evidence as an ‘invention’. Reliance was also placed on AP’s evidence concerning the storage of firearms at the property which rendered it unlikely that the accused would have had a rifle in his room. 3. Count 3: again, the absence of any meaningful detail and the description of the sexual activity at a level of abstraction means there is nothing intrinsically believable about the complainant’s account. Mr Henchliffe put further that if the complainant believed she was in a relationship with the accused at that point, her suggestion that she only ‘felt a bit pushed out’ by the accused having commenced a relationship with another, did not sit well. 4. Count 5: Mr Henchliffe drew attention to the complainant’s inability to recall where the accused ejaculated, submitting ‘One wonders how she can remember it happened at all if she doesn’t know where it went. How does she know he ejaculated? It’s strange that she can even say “yes, he did”, is certain about that, but then doesn’t know where’. 5. Count 6: the Volvo truck was registered on 6 April 2002, consistently with the notation on the invoice D22, which meant the truck was not in the possession of the Ps for any longer than 2 months before the complainant left the property. When asked in cross examination if she agreed that the Volvo did not arrive until April 2002, the complainant responded ‘what month did I leave?’, which Mr Henchliffe characterised as a calculated response to ensure the complainant did not ‘trip herself up’ on the timeline. As it was, the complainant’s evidence that she drove the truck during harvest time could not be right, Mr Henchliffe submitted, as it had been objectively demonstrated that the first harvest the truck would have been present for was the 2022 harvest and the complainant had left the Ps by then. 6. Count 7: the complainant said that she thought the incident in the header happened after the incident in the truck and at the end of a day of reaping -- 59 of 77 -- [2025] SADC 106 58 which, again, could not be right because that would place the incident in the harvest of 2002, by which time the complainant was no longer living at the Ps. Mr Henchliffe submitted that when counsel tried to pin down the timing of this alleged incident in cross-examination, the complainant said she could not be sure of when it happened. Mr Henchliffe also challenged the complainant’s evidence about driving the chaser bin which he described as fantasy, having regard to the evidence of NB about the training he went through to learn how to operate the tractor and chaser bin in conjunction with the header. It will also be remembered that NB was the holder of a medium- rigid heavy vehicle licence at the time and therefore had some experience driving large vehicles. NB’s uncontested evidence was that he and his friend AS were essentially employed as chaser bin drivers for the 2000 and 2001 harvests which made it unlikely the complainant undertook this work. Mr Henchliffe submitted that insofar as the complainant was able to describe the harvesting process, that was something she would have observed during her time on the farm, such that her ability to explain the process lent no real support to her suggestion that she in fact drove the chaser bin. 275 Mr Henchliffe submitted that the continuation sheets (P19) were consistent with the complainant wanting to stay with the accused, rather than the accused revealing an interest in having the complainant stay with him. He argued that the entry recording that the accused was prepared for the complainant to live with him if she returned from Queensland spoke to nothing more than his concern for her as her foster-brother and did not demonstrate the existence of a romantic relationship between them. 276 Mr Henchliffe drew attention to a number of discrete aspects of the complainant’s evidence which he submitted were curious. The first related to the complainant’s evidence that she was seen in the accused’s room by his mother on one occasion at around 10pm. Mr Henchliffe submitted that when challenged about the timing of this discovery, the complainant began to ‘backtrack’, having realised that, on her account, that would mean that she had been in the room for an hour and a half given the usual course of events was that she would go to the accused’s room at 8:30pm. 277 Next, Mr Henchliffe pointed to the complainant’s evidence that the accused ‘started coming to my room’ when Law & Order started which, it was submitted, contradicted the complainant’s evidence that it was always her going to the accused’s room. 278 Mr Henchliffe contrasted the evidence of the complainant about where she slept, including during harvests, with the evidence of AP and NB. As to AP’s spontaneous assertion during her evidence that she was aware of the complainant’s account, Mr Henchliffe suggested it was of no real moment and she maintained she was telling the truth about who occupied which bedroom. Mr Henchliffe put further that it would be a ‘remarkable coincidence’ if NB’s evidence about which -- 60 of 77 -- [2025] SADC 106 59 bedroom he stayed in during the harvests he worked, happened to align with AP’s evidence unless it was the truth of the situation. Mr Henchliffe submitted that if NB’s evidence were reasonably possibly true, it would make no sense for the complainant to have moved out of her bedroom and into the downstairs bedroom just for those periods that NB stayed at the house. 279 Mr Henchliffe submitted that if the evidence of AP and NB about bedrooms was reasonably possibly true, the complainant’s allegations ‘cannot work’ and ‘must all have been an invention’.251 280 Next, Mr Henchliffe submitted it was improbable that the complainant, an apparently fertile woman with numerous children, never fell pregnant to the accused if he was engaging in regular, unprotected sex with her for such a lengthy period. 281 As to the complainant’s evidence that the accused lived on the farm for the duration of her stay with the Ps, her evidence was in conflict with AP’s evidence which was that the accused moved out of the farmhouse at around the time the Volvo truck was acquired in March / April 2002. Mr Henchliffe said further that it was illogical that the accused would have sought to ‘drum’ his mobile phone number into the complainant in a paddock instead of during an episode of the almost nightly sexual activity she alleged was taking place. Mr Henchliffe submitted that a conversation in the circumstances described by the complainant would only be necessary if the accused had already moved out of the farmhouse. 282 Mr Henchliffe then targeted the complainant’s suggestion that the accused was ‘upset’ during this conversation in what she said was ‘a way that you would be upset if your partner was to leave home’. Mr Henchliffe characterised this aspect of the complainant’s evidence as ‘over egging her story’ and an attempt to ‘self-corroborate the fact of there being a relationship’.252 283 Mr Henchliffe concluded his address by observing that there were ‘red flags everywhere’ and that the complainant had been shown to have a dishonest and manipulative disposition. He submitted that her evidence was unsupported and in fact contrary to the evidence of JN, AP and NB and that the complainant had been shown to have told serious lies about sexual intercourse with LN; driving the chaser bin; seeing a rifle in the accused’s room and which bedroom she claimed to have occupied during her time at the Ps. Viewed in the context of the unchallenged evidence of the accused’s good character, Mr Henchliffe submitted that the prosecution had failed to prove its case. 251 TT224. 252 TT227. -- 61 of 77 -- [2025] SADC 106 60 Analysis and findings The complainant 284 I found aspects of the complainant’s evidence to be quite compelling. In numerous respects, the complainant presented as a genuine and credible witness. For the most part, she presented as very frank and straight-forward. She gave detailed evidence about the abuse she allegedly suffered and her evidence in chief was quite persuasive. 285 The complainant’s demeanour changed substantially whilst under cross- examination. From time to time, she was unresponsive, argumentative and occasionally obstructive. That is somewhat unsurprising given the complainant was subjected to a protracted and pressing cross-examination that challenged the truthfulness of her account in almost every respect. 286 However, there were aspects of the complainant’s evidence that require close analysis, particularly having regard to the evidence of AP, NB and JN. Her evidence was in direct conflict with the evidence of those witnesses in a number of ways. Alleged abuse when living with the Ns 287 It will be remembered that the complainant’s evidence about the circumstances in which she came to be placed with the accused’s family was that she had been subjected to physical and verbal abuse by her previous foster parents, JoN and JN. 288 The complainant was cross-examined at length about the letters she wrote to her son AB, care of the N family, and to JN. In her letter to her son of 10 October 2004, the complainant described the N home as a ‘good home’, which seems an inapposite description having regard to the complainant’s claims of maltreatment. 289 Then, in her letter to JN, which she introduced by referring to JN as ‘mum’, the complainant spoke in affectionate terms about JoN and JN. Indeed, as to JN, the complainant wrote that ‘no-one could ever mother me the way you ever have’; that JN meant ‘the world to [her]’; and that she loved JN ‘as much as I would if you were my biological mum’.253 She also inquired about the prospect of staying with the Ns for a weekend as she was missing everyone. 290 It is very difficult to reconcile the terms of the letter with the experiences the complainant claimed to have when living with the N family. I accept of course that interpersonal relationships of the kind the complainant had with her then foster family are complex and that there could be many reasons for the apparent tension between the complainant’s narrative of her time living with the Ns and the manner of her expression. Nonetheless, I find the letter to be strikingly inconsistent with 253 D11. -- 62 of 77 -- [2025] SADC 106 61 the complainant’s evidence that she was beaten or physically abused by both JoN and JN. 291 I also found it curious that the complainant would have been willing to have her son AB placed with the Ns if she had experienced the level of abuse she detailed in her evidence. However, I consider this of less significance given the complainant’s age at the time the arrangements were made in respect of AB. 292 JN gave evidence as part of the defence case. She denied that she had ever beaten the complainant. 293 JN came across as a genuine and truthful witness. I did not doubt her evidence that she had not been physically abusive to the complainant. 294 The combined effect of the letters written by the complainant and JN’s account cause me to doubt this aspect of the complainant’s evidence. I do not think that the conflict between the evidence of the complainant and JN on this topic can be attributed to misperception or honest but unreliable recollection. The complainant was adamant about what she had gone through at the N’s house; yet a contemporaneous insight into her mindset towards the N family belies that history of alleged abuse. 295 I have had careful regard to the submissions of Ms Moore about the important context for these interactions supplied by the complainant’s sympathetic personal history. I acknowledge further that one must be careful not to evaluate the evidence on the basis of assumptions about how a person in the complainant’s position should be expected to act. That is particularly so when it comes to what is said to be inconsistent conduct occurring whilst a person is in the grip of an abusive situation. That, however, was not the situation the complainant was in at the time she wrote the letters. 296 I do not overlook the complainant’s evidence that the letters were written in a particular way to avoid ‘consequences’. I also keep in mind that the complainant’s son was living with the Ns at the time the letters were written and that the complainant may have felt indebted to them on this account or otherwise not wanted to create friction that might have had an effect on the disposition of the Ns towards AB. 297 My concern that the complainant’s account about her experience with the Ns was, on the face of the letters written by her and JN’s evidence, doubtful, is by no means fatal to a favourable assessment of the complainant’s credibility and reliability as to the charged acts, but it is a matter that must be borne in mind. False allegations relating to LN and the lie in court 298 I turn then to the complainant’s allegations concerning LN. -- 63 of 77 -- [2025] SADC 106 62 299 The effect of the agreed facts D13 and P18 and exhibit D12 is that, on multiple occasions when aged between 11 or 12 and 22, the complainant told her mother that she had engaged in sexual activity with LN. The complainant accepted in her evidence that any such statement was a lie because she did not, in fact, have any sexual interactions with LN. 300 It is of course a matter for me to determine whether I accept the agreed facts. The position of the parties does not bind me, however there is no reason for me not to accept the agreed facts. 301 I find that the complainant told her mother in 1999 or thereabouts (when aged around 12), 2001 (when aged around 13/14), 2002 (when aged around 16) and 2008 (when aged around 22) that sexual activity had taken place with LN.254 I find that these allegations were, on the complainant’s own evidence, untrue. 302 The prosecution also conceded that the complainant’s denial in the course of her evidence of having made those statements to her mother was a lie that could not be explained by an imperfect memory because of the vehemence and confidence with which she had rejected having made the disclosures. The prosecution argued however that the complainant’s lie in court was in fact to her credit and could be understood as reflecting an unwillingness to perpetuate the original lie by acknowledging the statements were even made. 303 Notwithstanding the prosecution’s concession, I have independently considered whether the complainant’s denial might be attributable to oversight or lack of recall. If the statements had only been made to DB when the complainant was a young adolescent, I would have been inclined to the view that the complainant’s denial in court of having made the allegations was not dishonest but rather a product of forgetfulness. The difficulty however is that the complainant repeated the false allegations to her mother when she was around 16 years of age and when she was in her early 20’s. I find it difficult to accept that the complainant may have simply forgotten about making such serious allegations when she was in her mid-teens and early adulthood. It is also fair to describe the complainant’s response to questioning on this topic in cross-examination as a vehement denial. The way she answered questions about this issue did not leave a great deal of room to conclude that she may have simply been mistaken or forgetful. 304 Having regard to the prosecution’s concession; the manner in which the complainant responded to this topic in cross-examination and the repetition of the allegations when she was in her mid-teens and early adulthood, I find that the complainant’s evidence that she did not make such allegations to her mother was untruthful. 305 Further, I find the prosecution’s suggested explanation for the telling of the lie in court unconvincing. For one, the suggested explanation was not supported by evidence from the complainant who of course denied making the original 254 D12, D13, P18. -- 64 of 77 -- [2025] SADC 106 63 statements. In any event, the submission suggests that the complainant made a conscious decision to lie on her oath in court in preference to acknowledging that she had made false allegations out of court to her mother when much younger. It is difficult to see how that could possibly be seen as reflecting favourably on the complainant’s credibility. 306 The telling of lies by the complainant to her biological mother about sexual activity with LN could well have been capable of a convincing explanation. The complainant was young when she originally made the false allegations and the subsequent repetition of that lie could well have been explicable on the basis of what appears to have been a challenging upbringing for the complainant, who was placed into foster care from a very young age, and perhaps a need for attention or comfort from her biological mother. There may have been other things occurring in the complainant’s life when the disclosures were made again in her mid-teens and early adulthood. For example, the disclosure made when the complainant was around 16 must have been in relatively close proximity to the complainant being removed from the Ps’ care, which may well have been a challenging time for her. Even leaving aside her allegations of abuse within the foster environment, it is not difficult to understand the impact the complainant’s early life experiences may have had on her. 307 Conversely, it cannot be overlooked that the lies were repeated when the complainant was aged 16 and then again in her early 20’s. As such, the false allegations were repeated at a time when the complainant may well have been expected to have a deeper understanding of the wrongfulness and significance of making the statements. 308 As things are, there is no explanation for the original telling of the lies and the lie in court. 309 The significance of the false disclosures is amplified by the fact that they alleged sexual misconduct by a former foster-brother, and hence bear some correspondence with the complainant’s allegations against the accused. 310 As significant as the false allegations are, particularly without an explanation from the complainant, I am more troubled by what is conceded by the prosecution to be the complainant’s dishonest denial in court about having made the disclosures. 311 On the prosecution’s submission, the complainant may have made a conscious decision, on her oath, to deny making the false allegations in order to guard against them being aired in a forum such as a courtroom. Even if that were thought to be a commendable reason to not want to acknowledge the original making of the false allegations, it would still reflect a willingness to conceal the truth from the court. Without more, that is a serious blemish on a witness’ credibility. -- 65 of 77 -- [2025] SADC 106 64 312 Standing back, and bearing in mind the matters advanced by the prosecution in defence of the complainant’s missteps, I, again, would not have been prepared to conclude that, by itself, this unfortunate aspect of the complainant’s account was terminal to the prosecution case. It does however demand a critical examination of other aspects of the complainant’s account. The making of false allegations of sexual misconduct by another foster-brother is highly material to my assessment of the credibility and reliability of the complainant’s allegations about the accused. The bedroom issue 313 The complainant’s evidence that she occupied the upstairs bedroom for the entirety of her time at the farmhouse is also somewhat problematic. As I will explain in due course, the evidence of NB, which I accept without qualification, was that for the two harvests that he worked, he stayed in the upstairs bedroom next to the accused. It is highly unlikely that the complainant – a permanent resident in the house – would have been moved to the downstairs bedroom just to accommodate NB for reasonably short periods. Nor was there any real reason for NB to be hosted in the upstairs bedroom, if that was in fact the complainant’s room. For example, there was no ensuite attached to the room that might be thought to afford a visitor a greater degree of privacy. Accepting NB’s evidence, as I do, means that the complainant was at least mistaken about remaining in the upstairs bedroom for the duration of her placement with the Ps. 314 The evidence of AP that the complainant stayed in the downstairs bedroom after J left the farm is also in direct conflict with the complainant’s evidence. The co-location of the complainant’s bedroom and the accused’s bedroom is plainly a critical feature of the prosecution case because it facilitated what the complainant described as almost nightly sexual activity. The complainant was adamant that she occupied the upstairs bedroom; AP was adamant that the complainant occupied the downstairs bedroom, in which case, it would have been necessary for the complainant to walk through the living room where AP and TP would sit in the evenings to watch television, to access the stairs to the accused’s bedroom. 315 As will be seen, I am ultimately unable to reject AP’s evidence on this topic as not reasonably possibly true given it enjoys some support from NB’s evidence and bearing in mind other shortcomings in the complainant’s account. The charged and uncharged acts 316 As I have said, I found much of the complainant’s evidence about the charged acts themselves to be, on the face of it, consistent and quite persuasive. Her evidence in chief was particularly impressive. However, there are some aspects of the complainant’s narrative of sexual acts with the accused, or features of her account closely associated with them, that warrant careful consideration. 317 First, the suggestion that the complainant had no real relationship with the accused after she commenced living with the Ps yet, on the prosecution case, he embarked on what was extremely risky and brazen sexual conduct, with his parents -- 66 of 77 -- [2025] SADC 106 65 in the house, is somewhat curious. I do not consider this a significant issue, but it is a slightly unusual feature of the way the complainant describes the commencement of sexual abuse. 318 Secondly, the complainant’s evidence that the accused threatened her with a rifle and had a rifle in his bedroom on the occasion the subject of count 4, is in conflict with the evidence of the accused’s character generally and with AP’s evidence about storage of and access to firearms. However, given the nature of the farming properties that the Ps operated, I would find it unsurprising if the accused had access to a rifle from time to time. I am sceptical about AP’s evidence that she, and only she, had the code to the gun safe because of her aversion to firearms. Her evidence to this effect was also inconsistent with the evidence of NB that he would routinely have his rifle inside the house when he stayed at the farm and would simply store it under his bed. I find it curious that he would have been permitted to do so given AP’s apparent stance on firearms. Whilst the agreed facts that, during a police search of the farm house in 2015, firearms were found in a locked gun safe in the shed, lends some support to AP’s evidence on this topic, there is, to my mind, a tension between her evidence and the evidence of NB on this topic. 319 Thirdly, there is the complainant’s evidence that the accused had her perform oral sex on him in circumstances where he would have known that his father was in the living room just moments before. It will be recalled that the complainant said, that after the accused entered the house in an apparently distressed state, TP left the house and the accused may have heard him depart. Nonetheless, the complainant’s account puts TP in the immediate vicinity of the house at the time of the alleged commission of count 4. The risk of detection was therefore quite significant if this incident occurred in the manner described by the complainant. Again, however, I do not consider this to be a significant issue in its own right as it is well recognised that sexual abuse often takes place in risky and brazen circumstances. 320 Fourthly, the complainant’s evidence about count 6 and the Volvo truck is difficult to reconcile with objective evidence establishing the timing of the acquisition of the truck and its first use. The invoice, D20, in combination with AP’s evidence about the purchase of the truck, indicates that the Ps did not take possession until early April 2002. A number of modifications were then made to the truck. The complainant thought that the truck was on site for the 2001 harvest and that she drove it around harvest time. The preponderance of the evidence however favours the proposition that the Volvo was not on site until April 2002 at the earliest and the complainant had left the farm by the 2002 harvest. It is possible that the complainant was mistaken about having driven the truck around harvest time; it is possible she drove the truck at sometime between, say, late April / early May 2002 and her departure from the property around 15 June 2002, but that was not the complainant’s evidence. She did however express uncertainty about when the truck was acquired. -- 67 of 77 -- [2025] SADC 106 66 321 If the complainant had not alleged that a charged act of sexual intercourse took place in the Volvo, any mistake by her about having driven the truck and when she did so, might well be of minor moment. However, the complainant alleges that the accused had sex with her in the truck in the context of teaching her how to double declutch the gears around harvest time, and the weight of the evidence is to the effect that the complainant was not living at the farm at harvest time after the Volvo was purchased. 322 Fifthly, the complainant thought that count 7, which allegedly took place in a harvester, occurred after count 6. For the same reasons I have set out above, this poses a timeline problem because it tends to suggest that the incident took place in the 2002 harvest, by which time the complainant was no longer living with the Ps. 323 A further difficulty with the complainant’s account as to count 7 is that she said the offence was committed in the context of her having assisted the accused with harvesting activities by driving the chaser bin. As I have said, I accept the evidence of NB that he was retained as a chaser bin driver during the 2000 and 2001 harvests, the latter of which he worked together with AS. It seems unlikely that the Ps would have engaged one or both of NB and AS as chaser bin operators but then had the complainant assist the accused in that capacity. It is of course possible that the complainant was needed to ‘fill in’ for NB or AS or that, perhaps, there was some residual harvesting to be attended to after they had completed their retainers. 324 However, and perhaps more fundamentally, the complainant’s evidence that she was required to drive the chaser bin because she did it most ‘perfectly’, gave me reason to pause. I accept that it is not uncommon for children who have grown up on their family’s farm to assist in farming operations from time to time, potentially from a very young age. I accept that the complainant spent a number of years at the farm and may have become familiar with various farming activities and could physically have driven the tractor and chaser bin. However, the evidence of NB, who had experience driving tractors and trucks in the early 2000’s, was that learning to operate the tractor that pulled the chaser bin was not entirely straightforward and driving the chaser bin in tandem with the harvester was a ‘precision skill’ that required the driver to align the chaser bin with the auger of the harvester and to maintain consistent speed with the harvester. He described doing many ‘dry runs’ with the accused to make sure they could align the vehicles during harvesting. 325 I do not doubt that, with sufficient training, a person of the complainant’s age would have been capable of fulfilling the role of chaser bin operator, but it does strike me as an activity that required some finesse and driving experience. 326 Once again, even accepting NB’s evidence, as I do, about the challenges associated with driving the tractor and chaser bin, would not cause me to reject the complainant’s evidence out of hand. It is, however, just another area in which there -- 68 of 77 -- [2025] SADC 106 67 is, at some level at least, a conflict or tension between the complainant’s evidence and other evidence that I accept. 327 Sixthly, the complainant’s evidence was that sexual intercourse took place in the accused’s bedroom on an almost nightly basis for what must have been close to two years, without detection. Given the layout of the house and the seemingly uncontroversial evidence that AP and TP would sit in the living room in the evenings (at least on most nights) to watch television, it seems unlikely this could have continued with such frequency for such a long period without arousing suspicion. It is of course possible; but it was, on the complainant’s account, exceedingly risky abuse to engage in on a nightly basis. Moreover, if the complainant was able to hear AP ‘clicking’ the computer mouse in the study downstairs, it is difficult to understand how the complainant was able to navigate the creaky landing at the top of the stairs without arousing suspicion, noting her evidence that she effectively learnt which floorboards she could step on without them creaking. 328 In this analysis, I have not overlooked the complainant’s evidence that there was one occasion when AP discovered the complainant in the accused’s bedroom at around 10pm one evening, however, that evidence, which the complainant did not give in examination in chief, struck me as being a somewhat opportunistic response to the line of questioning being pursued by counsel which was clearly designed to highlight the implausibility of such activities occurring for years without being noticed by other members of the household. 329 Mr Henchliffe’s allied point was that it was improbable that the complainant, who he suggested was a fertile woman with a number of children and who was pregnant at or around the time she left the Ps, would not have become pregnant to the accused as a result of such sustained sexual abuse. I do not think that any such general proposition can be meritoriously stated. True it is that, on the prosecution case, the accused was taking a not insignificant risk by having unprotected sex with the complainant for such a long time; but the complainant’s evidence was clear that, insofar as she could recall, the accused did not ejaculate inside her. 330 Contrastingly, the prosecution emphasise that the file note (forming part of P19) from 9 July 2002 demonstrates that the accused had a close relationship with the complainant, such that he was willing to accommodate her after he moved out of the homestead. It is, to my mind, odd that the accused would have offered to accommodate the complainant in the circumstances. She was then 16 years old and he was 27. On the other hand, the accused had been living with the complainant for a number of years and there is some force in Mr Henchliffe’s suggestion that it would be incautious to reason that this was anything other than an indication of brotherly support. However, in my view, the accused’s invitation to take the complainant in does provide some support for the existence of a ‘close relationship’ between the two. -- 69 of 77 -- [2025] SADC 106 68 331 Similarly, the complainant’s evidence that she asked herself what, as a 14 year old, she was supposed to do or say when she entered the accused’s room on the occasion of count 4 and found him with the barrel of a rifle in his mouth, seemed a detail unlikely to be contrived. 332 The complainant’s evidence that the accused was circumcised, which is an agreed fact, does not, in my view, advance the prosecution case very far and cannot be described as esoteric knowledge. Any guess had a fifty percent chance of being correct and the complainant did spend a number of years living in the house with the accused. The possibility of innocent observation would need to be excluded before I would be prepared to treat the evidence as being probative of the complainant having had sexual contact with the accused. NB 333 NB was an impressive witness. He was straightforward and responsive to questions. He had what appeared to me to be a genuineness to his demeanour whilst giving evidence. He had an apparently good recollection of the significant matters about which he gave evidence, but appropriately acknowledged matters in respect of which his memory was limited. 334 The substance of NB’s evidence was internally consistent and accorded with common sense. 335 I considered him to be a reliable and credible historian and it was not suggested to him during cross examination that his evidence was untruthful. 336 The only aspect of his evidence that was in fact challenged (although not to suggest he was lying255) concerned the bedroom in which he said he slept during the time he spent at the Parkin Hall Road property during the 2000 and 2001 harvests. His evidence that he slept in the upstairs bedroom was challenged on the basis that he may have been mistaken. NB was clear and firm in his evidence that that was the only bedroom he slept in at the Ps. 337 I accept NB’s evidence. Accordingly, I find that during the 2000 and 2001 harvests when he was retained as the chaser bin operator, he slept in the second upstairs bedroom. This means that the complainant, throughout these periods at least, could not have slept in that room. 338 That is not fatal to the prosecution case by itself because of the limited periods during which NB stayed at the farm. However, the complainant did not suggest that she was relocated to the downstairs bedroom even for a short time. Her evidence was clear. She remained in the upstairs bedroom adjacent to the accused’s bedroom for the duration of her time on the farm. NB’s evidence establishes that could not have been the case, at least during the two harvests that he worked. 255 TT146. -- 70 of 77 -- [2025] SADC 106 69 339 NB’s evidence lends support to aspects of AP’s evidence about the occupation of bedrooms. My acceptance of his evidence has influenced my preparedness to accept AP’s evidence that the complainant was relocated to J’s room following her departure as reasonably possibly true. 340 I also accept NB’s evidence that he did not see the complainant driving the tractor and / or chaser bin during the harvests he worked at the farm, although that does not exclude that she may well have done so on other occasions. NB was only on the farm for parts of the 2000 and 2001 harvests. 341 NB was also a reasonably experienced heavy vehicle operator at the time. He holds a medium-rigid heavy vehicle licence and had driven tractors and trucks before working the harvests in 2000 and 2001. His evidence that some finesse was required to operate the tractor and chaser bin in uniformity with the harvester also appeals to common sense. I accept his evidence that a period of training was required to develop a cohesive operation with the accused as the driver of the header. 342 I accept NB’s evidence that he took a rifle to the farm when working the harvests and that he occasionally took the rifle inside to clean it or when preparing to go shooting. I accept his evidence that he would store the rifle under the bed and that he also had the rifle out of its case from time to time when the complainant was living on the farm. 343 As will be seen, there is, to my mind, a tension between his evidence on this topic and AP’s stated aversion to firearms. There is a contradiction in AP’s claim that she strictly regulated access to the Ps’ firearms, including by being the only person with the gun safe combination, yet allowed NB, who would have been around 19 or 20 years old at the time, to take his rifle into the house. AP 344 In the main, AP presented as a clear and responsive witness. She appeared to be a reliable historian. With one or two exceptions, her evidence in chief was, in my assessment, logical and coherent. 345 It was however clear from the manner in which AP gave evidence and some of her answers that she is not fond of the complainant. She made various remarks throughout the course of giving evidence that might have been thought directed towards criticising or denigrating the complainant.256 I considered some of her remarks about the complainant to be quite gratuitous and unnecessary. 346 I also found that AP was occasionally quite oppositional during cross- examination. By way of example:257 256 For example, T75, 91-92, 102, 115, 121. 257 Other examples can be found at T127-129. -- 71 of 77 -- [2025] SADC 106 70 Q When [AW] was - between October of 1999 and July of 2002. A I do not recall, he's had various girlfriends, but I do not recall. Q He was living at home between those two dates, which I have mentioned, do you agree. A Yes. Q And you've spent a lot of time thinking about that period of time, because you've been able to give us evidence about things that happened in that time, haven't you. A I've had to think about it because you have made me. Q And thinking back on it did he have a girlfriend at this time. A I cannot recall. How many times do I answer the same question? Q You said he had a number of girlfriends, were they local girls. Q No, he had a Danish one that I remember. He's had a Chinese one. He was married to a Thai. 347 Despite initially proclaiming that she was unable to recall whether her son had a girlfriend during the time the complainant resided at the farm and questioning ‘how many times’ she needed to answer the same question, when the question was asked again a short time later, AP said she did in fact recall the accused going out to meet a girlfriend during the time the complainant lived at the farm.258 This is just one example of the way in which AP’s demeanour changed quite substantially whilst under cross-examination. 348 As I said when remarking on the complainant’s presentation as a witness, I acknowledge that witnesses respond differently to the process of cross- examination. Some become defensive or evasive; others became loquacious; others still become very clipped or economical in their responses. Giving evidence is a stressful exercise and that may be thought all the more the case when a parent is giving important evidence in relation to allegations against their child. 349 I remind myself that it is often incautious to read too much into a witness’ demeanour when giving evidence for these, and other, reasons. Nonetheless, I am entitled to take into account demeanour when considering whether I accept the evidence of a witness as credible or reliable. 350 I have carefully considered AP’s presentation as a witness in conjunction with the substance of her evidence in evaluating whether, and to what extent, I can accept her account as credible and reliable. 351 I have also taken into account that AP is clearly aware of the evidence that the complainant has given; has read the disclosed affidavits and has spoken with 258 T125. -- 72 of 77 -- [2025] SADC 106 71 her son about evidence called at previous trials of the charges. AP’s frank acknowledgment of these matters both promotes and undermines her credibility and reliability. 352 Her transparency suggests candour; but the fact that she is familiar with the evidence to an extent not comprehensively explored in her cross-examination does give rise to the theoretical risk that her recollection has been contaminated or influenced by what she knows and / or that her evidence has been shaped to provide an answer to aspects of the complainant’s allegations. In particular, AP is clearly aware of the forensic significance of which room was occupied by the complainant during her stay. 353 I have considered carefully whether AP’s evidence that the complainant was moved into J’s room after J departed might be the product of conscious or subconscious contamination or concoction. Were it not for NB’s evidence, that may well pose a more difficult issue for me to resolve. Equally, however, AP acknowledged that her nightly routine involved sitting down at 8:30pm to watch Law & Order and if her evidence was a contrivance, it might be asked why she would lend support to such a key element of the complainant’s account. 354 I was also unimpressed by AP’s evidence about the ‘circumcision’ conversation which, to me, seemed highly implausible. It is difficult to understand that a person in AP’s position would have told the complainant – a teenage foster daughter – that her sons and husband were circumcised. The revelation of such private details was completely unnecessary to achieve AP’s ostensible aim of explaining to the complainant the benefits of circumcision by reference to her nursing experience. I have considered whether this too was an attempt to meet an aspect of the complainant’s allegations, namely, that the accused was circumcised. 355 There is, in addition, AP’s evidence about the firearms to consider. It struck me as somewhat implausible that, on a farming property where there may from time to time be problems with pest control, that AP would be the only person to have the combination to the gun safe. NB’s evidence also suggested a far less stringent approach to gun safety and AP agreed that she allowed NB to have his guns in the house, provided they were in his possession. 356 AP’s evidence about a conversation she had with the complainant after the complainant was told she would be leaving, during which the complainant said ‘she’d get [AP] for what [she] had done’ and that she could because she was ‘a girl’, also had an air of unreality to it. 357 I have also taken into account AP’s relationship with the accused and what must be, quite naturally, her desire to assist him and do everything she can to avoid her son being convicted of serious criminal offences. 358 On the other hand, and as I have said, AP’s evidence about bedrooms enjoys some support from NB’s evidence that he stayed in the spare room upstairs during -- 73 of 77 -- [2025] SADC 106 72 the 2000 and 2001 harvests. Whilst that would only account for a small portion of the time the complainant lived on the farm, common sense suggests it is unlikely that the complainant was moved from that room to the downstairs bedroom just for those periods. It would make much more sense for NB to have had made available to him a room that was not occupied by a permanent resident of the house. At the very least, I have not heard any evidence that would suggest a particular reason to re-locate the complainant from the upstairs bedroom to the downstairs bedroom to accommodate a guest. 359 I consider AP’s evidence about the limited role the complainant played on the farm to be supported by NB’s evidence about his role as a chaser bin driver during the 2000 and 2001 harvests and the intricacies of operating the chaser bin in tandem with the harvester. 360 Further, AP’s evidence about the acquisition of the Volvo truck accorded with the documentary evidence, and her evidence about additional work being undertaken on the truck before it was re-located to the farm, tends to suggest that the truck was really not present at the farm until quite close to the complainant’s departure date. Whilst the complainant was obviously familiar with the truck, the chronology surrounding its acquisition seems to discount the possibility that the complainant could have driven it at around harvest time. 361 I do not think that the suggested inconsistency between AP’s evidence that the complainant was at school for ‘99% of’ the harvests and evidence she gave at a previous trial that some workers had told her ‘why don’t you get rid of this kid. We can’t do anything because she’s always in the way’ to be particularly informative and, in any event, the prior statement is evidence which goes only to AP’s credit or reliability, if anything, and is not evidence of the fact that the complainant was ‘always in the way’ during farming operations. 362 I have reflected at length on these aspects of AP’s evidence and her evidence more generally. 363 Although the matters to which I have referred give me some pause, I am left in a position of being unable to exclude important aspects of AP’s account as not reasonably possibly true. 364 I generally accept AP’s evidence about matters of chronology and the operation of the farm. In this respect, she was an impeccable historian with an impressive memory for detail. I accept her evidence that she did not see the complainant operating the chaser bin and that NB and AS were engaged as chaser bin drivers for two harvests. 365 I accept AP’s evidence about the purchase of the Volvo and subsequent work done to it. I find that the Volvo was not at the farm for any continuous period until late April / early May 2002.’ -- 74 of 77 -- [2025] SADC 106 73 366 I also accept AP’s evidence that the accused moved to the Buccleuch house at around this time. AP’s evidence in this respect gains some support from the file note of 9 July 2002259 (part of P19) in which the accused advised Ms Kenny that he was no longer living at the farm. 367 I accept AP’s evidence that she would watch Law & Order on a nightly basis, which was consistent with the complainant’s account. 368 Importantly, and having had the opportunity to observe AP give evidence, I am unable to discount her evidence as to who occupied which bedroom as not reasonably possibly true. AP was adamant that the complainant moved into J’s bedroom after J departed the farm. Importantly, her evidence in this respect was consistent with that given by NB about who occupied which bedroom on those occasions that he stayed at the farm during harvesting. 369 Although not an indispensable intermediate fact, the complainant’s occupation of the upstairs bedroom was so central to her allegations, that my inability to exclude AP and NB’s evidence on this topic as not reasonably possibly true is problematic. Indeed, it is difficult to see how the complainant’s allegations can be reconstructed once it is accepted to be a reasonable possibility that she occupied the downstairs bedroom. The co-location of the complainant’s bedroom to the accused’s bedroom was integral to the fabric of the complainant’s account. It was the co-location of the bedrooms that facilitated nightly sexual activity taking place without detection. If it is reasonably possible that the complainant in fact stayed in the downstairs bedroom, she would have had to pass through the lounge room in order to get to the accused’s bedroom. The suggestion that sexual activity continued for two or so years undetected in those circumstances is all but unsustainable. JN 370 JN struck me as a sincere and honest witness. 371 Her evidence was brief and neither counsel raised with her the complainant’s allegations against her husband. However, she was asked whether she had beaten the complainant during her placement, to which JN responded ‘definitely not’260 but did not seem visibly distressed or concerned about the nature of the question. 372 In cross-examination, JN said that before coming to court on the day she gave her evidence, she had not heard of any allegation that she had beaten the complainant. 373 I have considered whether JN’s subdued response to a question of that kind being asked of her might suggest, contrary to her evidence, that she was aware of 259 Admissible as a business record pursuant to s 53 of the Evidence Act. 260 TT151. -- 75 of 77 -- [2025] SADC 106 74 that allegation before giving evidence and hence was not taken by surprise when the question was asked. 374 However, JN presented with a calm disposition more generally and I am not able to read anything into her reaction. 375 JN denied hitting any children in her care and denied using a wooden spoon to reprimand a child. She acknowledged breaking a wooden spoon after striking a benchtop with it but denied striking the complainant with a metal ruler. JN’s evidence on these topics is indirectly supported by the letters written by the complainant, which I have earlier discussed, and the complainant’s willingness to have her son, AB, live with the Ns. 376 I accept the evidence of JN. I find that she did not strike the complainant with a metal ruler or ‘beat’ her. I have already indicated how these matters impact on my assessment of the complainant’s credibility and reliability. Conclusion 377 Although I found aspects of the complainant’s evidence to be quite persuasive and coherent, there are a number of significant problems in her account that leave me with a doubt about her evidence as to the charged and uncharged acts. 378 In particular, I cannot rationalise JN’s evidence and D10 and D11, with the complainant’s evidence about her time with the Ns. 379 It may be that her experience during that placement was imperfect, but I cannot accept that she would have written letters in the terms she did if she had indeed been subjected to the horrendous experiences she claimed. As I have just mentioned, I also accept JN’s evidence. I am unable to sweep aside the complainant’s evidence on this topic. It has influenced my assessment of her evidence. 380 I am also unable to ignore the false allegations made about LN and what the prosecution conceded to be the complainant’s lie in court when she denied making those allegations. For whatever reason, the complainant made a conscious decision not to acknowledge that she had previously made allegations against another of her foster-brothers. If there was a good explanation for making false allegations in the first place, or for why the complainant refused to acknowledge making them during previous trials, I remain uninformed about them. 381 This too has had a significant influence on my assessment of the complainant’s evidence. 382 There were, additionally, various aspects of the complainant’s narrative of the charged acts or uncharged sexual activity which leave me questioning the credibility and reliability of her account. The tension arising from her evidence relating to counts 6 and 7, and the evidence of NB, AP and the documentary -- 76 of 77 -- [2025] SADC 106 75 evidence, serves as an illustration. Of course, my assessment of the complainant’s evidence must also take into account what I have found to be the significant forensic disadvantage faced by the accused in defending the allegations. 383 Compounding these matters is the evidence of AP and NB. As I have said, I was impressed with the evidence of NB and although I have reservations about some aspects of AP’s account, I am unable to exclude her evidence about the complainant occupying the downstairs bedroom as not reasonably possibly true. 384 Once that conclusion is reached, the cogency of the prosecution case is substantially damaged. 385 I am unable to accept the complainant’s account of the charged and uncharged acts as credible and reliable, beyond reasonable doubt. In arriving at this conclusion I have had regard to all aspects of the complainant’s evidence; its positive attributes and the shortcomings I have discussed. Ultimately, I find myself in a position where the combined weight of the infirmities in the complainant’s account, together with the contradictory defence evidence which I accept, means I am unable to act on the complainant’s evidence. 386 As a consequence I am unable to find the elements of the offences proved beyond reasonable doubt. 387 I find the accused not guilty of all counts on the Information. -- 77 of 77 --