[2025] SADC 121

Prosecution: R Counsel: MS L CRASE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: TCL Counsel: MR N HEALY - Solicitor: MANGAN EY & ASSOCIATES PTY LTD Hearing Date/s: 14/04/2025 to 16/04/2025 File No/s: DCCRM-24-037624 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 TCL Criminal Trial by Judge Alone [2025] SADC 121 Reasons for the Verdict of her Honour Judge Kudelka 17 October 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The accused is charged with the offence of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act, 1935. He met the complainant through his friendship with the complainant's mother's partner. It is alleged the unlawful sexual acts occurred when the complainant was aged between six and 12 years. Verdict: Guilty. Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act (SA) s 13BA, Part 3 Div 3, s 29, s 34P, s 34M; Summary Offences Act 1953 (SA) Part 17 Division 3, referred to. Anderson (a pseudonym) v The King [2024] SASCA 36; R v Maiolo (No 2) (2013) 117 SASR 1; R v Usher (2014) 119 SASR 22; R v Maiolo (No 3) [2014] SASCFC 89; R v Place (2015) 124 SASR 467; BQ v The King (2024) 279 CLR 124; AWK v Tasmania [2024] TASCCA 5; R v Schulz (2016) 126 SASR 476; R v Ahmadi, R v Hosseini, R v A,N; R v M,A (2018) 131 SASR 64, considered. -- 1 of 40 -- -- 2 of 40 -- R v TCL [2025] SADC 121 1 The accused is charged with the offence of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935. 2 The particulars of the offence are that between 21 July 2014 and 23 July 2021, the accused maintained an unlawful sexual relationship with the complainant, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: (a) performing an act of cunnilingus upon her on more than one occasion; (b) attempting to insert his penis into her vagina on one occasion; (c) attempting to insert his penis into her anus on one occasion; (d) causing her to touch his penis on more than one occasion; (e) rubbing his penis down her torso on one occasion; (f) rubbing his penis on her genitals on more than one occasion; (g) causing her to perform an act of fellatio upon him on one occasion; (h) touching her genital area on one occasion; and (i) touching her bottom on one occasion. 3 Before the alleged offending, the complainant’s mother commenced a relationship with Mr AB. The accused was Mr AB’s friend and former work colleague. 4 The accused elected for trial by judge alone. Elements of the offence of sexual abuse of a child 5 An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. The offence has four elements: 1. The accused knowingly maintained a relationship with the complainant in the relevant period. 2. The accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship. 3. The complainant was a child during the relationship. 4. The accused was an adult during the relationship. -- 3 of 40 -- [2025] SADC 121 2 6 The prosecution must prove each element of the offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt, or that the accused is possibly or even probably guilty. 7 The first element was not in dispute. The evidence establishes that the accused maintained a relationship with the complainant, see [22]-[27]. 8 The third and fourth elements were not disputed. During the relationship, the complainant was a child, aged six to 13. The accused was aged 27 to 34. 9 I find the first, third and fourth elements proved beyond reasonable doubt. 10 The issue at trial was proof by the prosecution of the second element of the offence. The defence case was that the accused never engaged in any unlawful sexual acts with the complainant. Witnesses 11 The prosecution called eight witnesses: the complainant; the complainant’s mother, aunt, grandmother, stepdad (Mr AB) and school friend (Miss CD); the accused’s former partner (Ms EF); and an expert witness (Ms Patricia Rayment). 12 The accused exercised his right to remain silent. No witnesses were called for the defence. No adverse inference has been drawn against the accused because of his election not to give evidence or call witnesses. The accused has the presumption of innocence in his favour. He is not required to prove anything. The prosecution must prove the second element of the offence beyond reasonable doubt. Chronology 13 In around 2012, the accused and Mr AB resided in the accused’s house in Aberfoyle Park. 14 In around 2014 to 2015, the complainant and her mother moved into the Aberfoyle Park house.1 The complainant’s mother was in a relationship with Mr AB. The complainant was then aged about five to seven years old. The accused’s partner, Ms JJ, lived at the house. The accused had shared custody of his two sons who were over occasionally, perhaps every second weekend.2 The complainant was about a year older than the eldest son and two years older than the younger son.3 15 Around 2016, the complainant, her mother and Mr AB moved to an address in Reynella.4 The accused and Ms EF commenced a relationship. Ms EF would 1 Exhibit P1, Agreed facts. 2 T67. 3 MFI P3A, page 23. 4 Exhibit P1, Agreed facts. -- 4 of 40 -- [2025] SADC 121 3 sometimes stay the night at the Aberfoyle Park house.5 The complainant visited and stayed overnight. The complainant was aged seven and eight during 2016. 16 In late 2017, the accused and his partner, Ms EF, moved into a house at Christie Downs and lived there with Ms EF’s son.6 The complainant was probably nine years old at the time. 17 In August 2018, the accused and Ms EF moved into a house at St Marys together.7 Ms EF had two children living at this address, her daughter and son.8 In January 2020, her son was two years old.9 In January 2021, the relationship between Ms EF and the accused ended.10 The accused lived at the St Marys house until February 2021.11 The complainant was aged 10 to 12 during the period he lived at that house. The complainant visited the house and stayed overnight. 18 In around February 2022, the complainant and her mother moved to live on Hindmarsh Island. The complainant’s mother remained there until at least September 2022.12 The complainant was aged 13 and 14. 19 In February 2023, the complainant, aged 14, disclosed some information about the alleged offending to her school friend, Miss CD. 20 On 11 July 2023, the complainant, aged 14, participated in a prescribed interview.13 21 The complainant was 16 when she gave evidence at trial. The relationship 22 The complainant was aged five to seven when she lived with her mother, Mr AB and the accused in Aberfoyle Park. After they moved out in around 2016, the complainant visited the accused and stayed overnight. 23 The complainant estimated her visits to be twice every five months14 and she stayed overnight every three to four months.15 Ms EF estimated the complainant’s visits to be every six to eight weeks; more often in the earlier days before the 5 Exhibit P1, Agreed facts. 6 Exhibit P1, Agreed facts; T105. 7 Exhibit P1, Agreed facts. 8 MFI P3A, page 33; T24, 106. 9 T106. 10 T103. 11 Exhibit P1, Agreed facts 12 Exhibit P11; Agreed facts 2. 13 Exhibit P3. The interview was admitted pursuant to s13BA(1)of the Evidence Act 1929 (SA). The audiovisual record of the interview was made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA) and I was satisfied that the complainant had the capacity to give sworn or unsworn evidence at the time the recording was made. The transcript of the interview was an aide memoire, MFI P3A. 14 T20. 15 MFI P3A, page 22. -- 5 of 40 -- [2025] SADC 121 4 complainant moved away.16 The complainant gave evidence that after her mother and Mr AB separated, she continued to see the accused ‘every now and then’ in similar circumstances.17 24 As discussed at [130]-[135], I do not consider the complainant’s mother ever accompanied the complainant on her visits or overnight stays. Mr AB may have been present occasionally on the visits but never stayed overnight. 25 Ms EF gave evidence that when the complainant visited, she and the accused would look after her as they would their own children. They provided her with food, took her out to places and involved her in what the accused’s sons were doing. The complainant would ‘sleep over, watch movies, we’d have dinner together, the kids would play games’.18 She produced six photographs of the children on some of the occasions when the complainant visited or stayed. They were photographs taken in October 2017 (indoor playground), on Boxing Day 2017 (at the beach) and on the weekend of the complainant’s mother’s 30th birthday in January 2020.19 26 Ms EF gave evidence that the complainant ‘would often be involved with the boys in what we were doing. He [the accused] would include her … He was friends with [Mr AB] as well. He would always go on about [the complainant’s mother’s] mental health problems and how [the complainant] was neglected and how she would be left alone gaming all weekend. So with us at least she had nutritious food, and some, you know, vitamin D from the sun and she wouldn’t be left alone all weekend’.20 27 I am satisfied beyond reasonable doubt that the accused maintained a relationship with the complainant between 21 July 2014 and 23 July 2021. The allegations 28 The complainant told police that she did not remember the first time something happened with the accused because she was young.21 It happened to her a lot of times: ‘there’s been that many to the point I only remember parts of some’ and ‘there’s just some I don’t remember at all’.22 She thought the accused used swimming goggles ‘about three times’. She remembers the detail of one time23 but not the other times apart from the accused putting them on her.24 She gave evidence in court that sexual acts occurred ‘every time I would be around him’.25 16 T110–111. 17 T21–22. 18 T104. 19 Exhibit P8; T107. 20 T110. 21 MFI P3A, page 2. 22 MFI P3A, pages 5, 16. 23 Occasion (4). 24 MFI P3A, page 28; the one time she does remember is occasion (4). 25 T20. -- 6 of 40 -- [2025] SADC 121 5 29 The accused used the phrase boyfriend/girlfriend around 10 times when she was eight until she was 12 years of age.26 He said it at his house and Ms EF’s house. On one occasion he asked to put the goggles on, she said no, she did not want to. He said that is what boyfriends and girlfriends do; it is boyfriend/girlfriend time.27 30 She used to ask the accused for toys or lollies and he would say, ‘only if you’re good later tonight’ or ‘only if you’re good’.28 The accused used to threaten the complainant, ‘he used to say if you ever tell anyone I’ll get all your toys taken away just like all the other little girls’.29 31 The complainant gave evidence about six occasions when unlawful sexual acts occurred. The prosecution must prove that the accused engaged in two or more of those alleged unlawful sexual acts with the complainant. (1) Woken from a deep sleep30 32 The complainant gave evidence about an occasion in the loungeroom at the accused’s house when she thought she was six or seven.31 33 She was in a very deep sleep on the couch. She woke up with her pants about half-way down her leg in the middle of her thigh. The accused pulled her pants down to about half-way on her calf, then took her underwear off and spread her legs so they were up.32 He licked her vagina, his tongue went on her ‘clit’.33 He said, ‘does this feel good’. She said ‘no’. He asked her if it hurt, and she said ‘no’. He then tried to put his penis inside her and she said ‘ow’. He asked, ‘does that hurt’ and she said ‘yes’. She was still in the same position when the accused then tried to put his penis in her ‘arse’. 34 The complainant gave evidence ‘obviously it wouldn’t fit’.35 He asked her if it ‘hurt’ and she said ‘yeah’ but ‘he still tried doing it anyway’.36 She could not remember what happened after that but did remember putting everything back on again. She did not say anything because she was too scared.37 She could not remember him saying anything or whether there was anyone else in the house at the time.38 34 The evidence addresses particulars (a), (b) and (c). 26 T20–21. 27 T33. 28 T34. 29 MFI P3A, page 23. 30 Occasion (1). 31 MFI P3A, pages 11, 28. 32 MFI P3A, page 9. 33 MFI P3A, page 10. 34 MFI P3A, page 10-11. 35 MFI P3A, page 9. 36 MFI P3A, page 10. 37 T24. 38 T24. -- 7 of 40 -- [2025] SADC 121 6 (2) Watching the Bee movie39 35 The complainant gave evidence about an occasion on the couch in the accused’s living room.40 It was a pull-out couch with a mattress.41 She was sitting next to the accused. His two sons were sitting next to her; one of them was laying down.42 A blanket, like a double quilt, was over all of them.43 36 She was moving away a little bit, but the accused kept on pulling her back. She was shaking her head and he said, ‘why not, you’re my girlfriend’. She said, ‘I just don’t want to’ and then they chose a movie, the Bee movie. He grabbed her arm and put it down his pants into his underwear, guiding her hand onto his penis ‘then making me pleasure him’ for maybe 15 minutes. 44 She was confused and a bit scared.45 37 When he pulled her arm back out, she put her hand back in her lap and moved away a little bit and he did not bother her for the rest of the movie. 38 The evidence addresses particular (d). (3) Woken up after the Bee movie46 39 Later the same night they had watched the Bee movie, the complainant woke up to find herself sitting on the accused’s lap. She just remembers feeling the accused move her onto him. He was pushing her hips down and grinding. Her pants were off and his pants were pulled down. His penis was not inside her but on an angle so that her vagina would rub against it. Her head was on his left shoulder and he was ‘like heavy breathing and stuff like that’.47 40 She made it known that she woke up and was trying to make it known that she was annoyed. He said something but she cannot remember what it was. He continued doing it for about half an hour. She does not know what happened after that. She was scared and did not say anything.48 41 The evidence addresses particular (f). (4) The swimming goggles49 42 The complainant gave evidence about an occasion that involved the accused putting swimming goggles on her.50 She thought this was the last night that she 39 Occasion (2). 40 T26. 41 MFI P3A, page 12. 42 T25. 43 T25. 44 MFI P3A, pages 12-13. 45 T25. 46 Occasion (3). 47 MFI P3A, page 14. 48 T26. 49 Occasion (4). 50 MFI P3A, page 17. -- 8 of 40 -- [2025] SADC 121 7 was at his house. It was just the two of them in his room. She could not remember how she got into the room. It was about midday.51 43 She was sitting on his bed.52 She noticed his phone was positioned on its side against something with easy access for him to record.53 He had swimming goggles coloured in with black Texta or duct tape, some sort of black. He put them on her and got her to lie on her back.54 44 The accused said, ‘tell me what you think this is’. He then put his penis in her mouth, ‘it just had a bad taste to it, so I knew it wasn’t food’.55 It had a bad taste to it, like salty.56 He kept pushing his penis in and out of her mouth. That lasted about five minutes.57 45 He then dragged his hard penis from her chest down to her stomach and rubbed it on her vagina for five or six minutes.58 46 He used his tongue on her clit and ‘was doing it fast’ for a while.59 He asked her if it felt good and she said ‘no’. He said, ‘you’ll understand when you’re older’.60 He licked her vagina for less than five minutes. He did that before he rubbed her vagina.61 47 She was only wearing socks. She cannot remember taking her clothes off. 48 He took the goggles off and said ‘you’ve been like a good girl, or good job, or something along the lines of that’.62 He said that she could go and play with the toys now and ‘so I ran out his room and went to like go to the bathroom, um I went to the toilet, I peed, came out and then played with toys’.63 49 The evidence addresses particulars (a), (e), (f) and (g). (5) Computer room64 50 The complainant gave evidence about an occasion on her mother’s 30th birthday (January 2020). Her mother was going to the city and there was no one 51 T28. 52 T27. 53 T27. 54 T27. 55 MFI P3A, page 17. 56 MFI P3A, page 18. 57 T27–28. 58 MFI P3A, page 18. 59 MFI P3A, page 19. 60 MFI P3A, pages 19-20. 61 T28. 62 MFI P3A, page 18. 63 MFI P3A, page 18. 64 Occasion (5). -- 9 of 40 -- [2025] SADC 121 8 to look after her.65 The accused, Ms EF and the accused’s two sons were home. It was a time when they brought the computer over.66 51 During the day they were all playing a computer game together called ‘Don’t Starve’.67 The accused’s two sons were in the room on their computers. Ms EF was on her laptop in the dining room.68 The accused made her sit on his lap, and she was playing on his computer. 52 He had his hand on her groin on the outside of her pants and was rubbing with his two fingers.69 He whispered in her ear asking whether it felt nice, and she said ‘no’. He said, ‘it will feel nice when you’re older’. She was wearing some sort of tight jeans. 53 That night he asked where she wanted to sleep either in the loungeroom or on the bunk bed. She said ‘the bunk bed’ because that was in the room with his boys and she was on the top bunk.70 54 The evidence addresses particular (h). (6) Hallway indecent assault71 55 The complainant gave evidence that the last time anything happened was the last time she saw the accused.72 She was living with her mother and her mother’s partner at Hindmarsh Island. 56 The accused came over for a visit. The complainant was walking down the hallway in front of him, the accused was to the left of her. He grabbed her bottom with his hand and squeezed. It lasted no longer than three seconds.73 She ‘jolted up a little bit and obviously tried to get away from him’.74 Her mother was at the end of the hallway talking with her partner. The complainant was shocked because she did not expect it, especially being around her mother. She did not say anything to her mother because she did not know what to say or how to say it.75 57 This addresses particular (i). Discreditable conduct 58 The prosecution and defence led evidence tending to suggest that the accused has engaged in discreditable conduct, other than conduct constituting the offence. 65 MFIP3A, page 5. 66 MFI P3A, page 6. 67 MFI P3A, page 27. 68 MFI P3A, page 27. 69 MFI P3A, page 7. 70 MFI P3A, page 6. 71 Occasion (6). 72 MFI P3A, page 16. 73 T32. 74 MFI P3A, page 17. 75 T32. -- 10 of 40 -- [2025] SADC 121 9 Part 3 Div 3 of the Evidence Act 1929 (SA) (Evidence Act) governs the admissibility of the evidence, the permissible and impermissible uses of the evidence and directions that must be given in relation to the evidence. 59 None of the evidence was admitted pursuant to s 34P(2)(b) of the Evidence Act. It has not been used for any propensity or disposition purpose. General evidence 60 The complainant gave general evidence that unlawful sexual acts occurred every time she saw the accused, see [28]. The evidence lacked detail which made it impossible to assess the nature of those unlawful sexual acts, including whether any came within the particulars alleged in the charged offence. 61 The prosecution did not make submissions that addressed the permissible use/s of that evidence. In my view, if accepted, the evidence, at its highest, is evidence that the identified occasions (1) to (6) were not isolated but occurred in the context of other conduct of a sexual (but otherwise non-specific) nature which may be relevant to understanding why the complainant has limited memory of the identified occasions, reacted in the way she did on the identified occasions and did not complain. The evidence may be used to explain the accused’s confidence to act as he did on the charged occasions. The nebulous nature of the evidence, however, is such that I consider it has little weight when used for those purposes. Put simply, the evidence did not assist in determining the issue in the trial. 62 I have not used the evidence to suggest that the accused is a bad person and so is more likely to have committed the offence because he has, or may have, engaged in that discreditable conduct. 63 The defence submitted that the evidence may be used for a purpose adverse to the complainant’s credibility and reliability; her claim that it happened ‘every time’ cannot be the case when considered in the context of other evidence about opportunity.76 The submission is discussed at [143]. Shower incident 64 The complainant gave evidence about a shower incident. The alleged conduct does not fall within the particulars of the charged offence. 65 The complainant gave evidence that the shower incident happened when the accused was living with Ms EF.77 The complainant said to the accused that she needed to have a shower. He went into the bathroom and opened the window. When she got out of the shower, she put a towel around herself and saw him 76 T161–162. 77 MFI P3A, page 24. -- 11 of 40 -- [2025] SADC 121 10 standing outside in the backyard looking through the window at her. She turned around and covered herself with the towel.78 66 The complainant gave evidence that she did not know the house where the shower incident happened but did say the accused was living with Ms EF.79 Ms EF gave evidence she lived with the accused at the Christies Beach house and the St Marys house but the complainant did not visit the Christies Beach house.80 I consider the setting for the alleged shower incident to be the St Marys house. The complainant was aged 10 to 12 during the period when the accused lived at that house. 67 The prosecution did not address the permissible use/s of the evidence. The shower incident happened after occasions (1) to (4) and in the same house as occasion (5), see [109]-[116]. The evidence does not permit a finding to be made about whether it happened before or after occasion (5). 68 The evidence was not admitted pursuant to s 34P(2)(b), is not capable of amounting to evidence of sexual interest, and I have not used it for that purpose or any other propensity or disposition purpose. 69 I have addressed the defence submissions about the complainant’s inconsistent statements regarding her age at the time of this incident and explained why I do not consider those inconsistencies detract from her credibility, see [102]. I have not otherwise used the evidence of the shower incident. I do not doubt the complainant’s account of the incident, but the incident itself is of little weight in the context of the complainant’s evidence and does not assist in determining the ultimate issue of whether the accused engaged in two or more unlawful sexual acts with the complainant. I have not used the evidence to suggest that the accused is a bad person and so is more likely to have committed the offence because he has, or may have, engaged in that discreditable conduct. Sentencing remarks 70 The defence cross-examined the complainant about her knowledge prior to her police interview that the accused had been convicted of prior sexual offending. 71 The evidence established that on 9 July 2023 (two days before the complainant was interviewed by police), the complainant and Ms EF were texting each other. Ms EF told the complainant that the accused had been convicted of sexually assaulting a young girl and provided the sentencing remarks to the 78 MFI P3A, page 4. 79 MFI P3A, page 24; T54. 80 T105. -- 12 of 40 -- [2025] SADC 121 11 complainant which the complainant read immediately.81 The defence tendered the sentencing remarks.82 72 On 1 June 2022, Judge Burnett sentenced the accused. The sentencing remarks record that the accused pleaded guilty to one count of indecent assault and one count of production of child exploitation material. The accused committed both offences at his home on 9 January 2021. The eight year old victim and her father were sleeping over at his house. The accused and the victim’s father were very good friends. The accused had known the victim since she was about two years of age. When the victim was playing on a virtual reality device, the accused spread her legs and rubbed her groin under her shorts but on top of her underwear. He told her to sit on her lap and continued to rub her in that way. The victim told her father and they left immediately. 73 The accused was arrested the next day. There were 12 category 1 videos of child exploitation material on his mobile phone. One of the videos was of the indecent assault described above. The other videos showed filming under the victim’s top and shorts and focused on her bare chest, underwear and genital area. Some videos showed the accused manipulating her clothing to film underneath it. There were 31 screenshots from the videos. The accused was sentenced to two years and seven months imprisonment with a non-parole period of 16 months to commence from the date of sentence. 74 The sentencing remarks contain evidence that the defendant has engaged in discreditable conduct. 75 The evidence cannot be used to suggest the accused is a bad person and so is more likely to have committed this offence because he has engaged in discreditable conduct. I have not used the evidence of the accused’s conviction for indecent assault, the circumstances of that offending or any other part of the sentencing remarks to reason that he is a bad person and so is more likely to have committed this offence. 76 The sentencing remarks were not relied upon by the prosecution for any purpose, including any propensity or disposition purpose. I have not used the discreditable conduct evidence in the sentencing remarks for any purpose other than to consider the purpose relied upon by the defence, see [173]-[197]. 81 Exhibit P11: It is an agreed fact that they commenced a Facebook Messenger conversation regarding the accused on Saturday 9 July 2023 at 11.17pm. It was during that text conversation that the previous remarks on sentence were provided to the complainant. 82 Exhibit D5. -- 13 of 40 -- [2025] SADC 121 12 Complaint evidence 77 In a trial of a charge of a sexual offence, evidence related to the making of an initial complaint of an alleged sexual offence is admissible for certain purposes.83 78 The complainant gave evidence that the first person she told was her school friend, Miss CD. They both gave evidence the first disclosure was made by the complainant in early 2023, however, their evidence about the setting differed. The complainant gave evidence she first told Miss CD at Miss CD’s house whereas Miss CD gave evidence she was first told by the complainant in the bathroom at school. Their evidence about the extent of the disclosure on what each described as the first occasion also differed. The complainant’s evidence 79 The complainant gave evidence they were at Miss CD’s house just talking about things that happened in their childhood. It was during school term in the beginning of 2023.84 80 She said to Miss CD, ‘there’s something you don’t know about me, and she was like what is it? And then I’m like I don’t know how to say it. And she’s like you can say it, you can tell me anything, and so I told her, I said I was molested by my mum’s and my step-dad’s friend from when I was six until when I was 12 and then yeah that was pretty much that whole conversation’.85 The conversation was less than 10 minutes. Miss CD had started talking about an incident that she had, and the complainant felt like it was the time to tell someone.86 Miss CD’s evidence 81 Miss CD gave evidence that the complainant first told her about sexual allegations involving the accused during the first week of school when they were both in the school bathroom. The complainant had ‘seemed off the whole week, but this particular morning she just said nothing to anyone’.87 82 Miss CD followed the complainant into the bathroom at around 8.45am and saw that she was crying in the end cubicle. Miss CD spoke first saying, ‘what’s wrong? You’re usually not like this’ but the complainant verbally pushed her away. Miss CD said, ‘You know you can talk to me about this’ and she kept on pushing her to tell. The complainant said there was nothing Miss CD could do, ‘so I continued talking to her and, yeah, I eventually got it out of her’.88 83 Evidence Act 1929 (SA), s 34M. 84 T35. 85 MFI P3A, page 25. 86 T35. 87 T79. 88 T79. -- 14 of 40 -- [2025] SADC 121 13 83 Miss CD gave evidence the complainant told her about incidents but ‘it wasn’t into full detail’.89 The complainant was crying at the start and during the conversation it was hard for the complainant to get the words out.90 The complainant told her about the shower incident when the accused was looking through a window or door into the shower when she was about 11 years old.91 The complainant told her about being in the kitchen when the accused walked past and ‘slapped her arse’.92 The complainant told her about play time and a game that they played ‘boyfriend and girlfriend’,93 about some recording (the complainant said she felt the phone on her skin and heard the phone start recording when she was blindfolded)94 and how the accused would touch her on her breasts and vagina.95 The accused put his hands down the complainant’s pants and underneath her shirt.96 The complainant told Miss CD sometimes the accused’s sons would be near them or in or out of the room sometimes. The complainant told her this was between around four to six years old, but more leaning towards six and stopped around aged 11, maybe 12.97 84 On application by the prosecution, and with the consent of the defence, an interview between police and Miss CD dated 18 July 2023 was initially admitted pursuant to s 13BA of the Evidence Act as part of Miss CD’s evidence.98 Approximately four minutes of the interview was played in court. It became obvious that Miss CD was not talking to the police solely about a single first occasion when the complainant told her about these allegations, but relaying information obtained on unspecified occasions. The evidence was hearsay. It was not admissible pursuant to s 34M of the Evidence Act. This was raised with counsel.99 The trial was adjourned overnight to enable a police officer to take an affidavit from Miss CD about the initial complaint. The prosecutor no longer relied upon Exhibit P6 or MFI P6A.100 However, during closing addresses, defence counsel indicated that he wanted to rely on the first four minutes of Exhibit P6.101 It was admitted at the request of the defence for the limited purpose of assessing the reliability of Miss CD’s evidence about the disclosure.102 89 T80. 90 T84. 91 This is an uncharged act. 92 T80. 93 T80. 94 T81. 95 T80-81. 96 T82. 97 T82-83. 98 Exhibit P6, T57. The transcript was MFI P6A. 99 T58. 100 T147. 101 T169. 102 T168–169. -- 15 of 40 -- [2025] SADC 121 14 85 In closing, the prosecution relied upon Miss CD’s evidence as the initial complaint evidence and did not make any submissions about the differences in the evidence of Miss CD and the complainant about the setting and content.103 86 If the complainant is correct about the setting and content of the initial complaint, then Miss CD’s evidence about the occasion in the school bathroom could be regarded as an elaboration. However, the prosecution did not submit that the evidence was admissible in that way for the purpose of s 34M of the Evidence Act. The complainant was not asked questions about whether she spoke with Miss CD at some stage in the bathroom nor was Miss CD asked about an occasion at her house. There was no evidence connecting the two conversations as a single complaint104 and so it would be speculative to admit the school bathroom evidence under s 34M as an elaboration. 87 I accept the evidence of the complainant and Miss CD that conversations about the allegations occurred at Miss CD’s house and the complainant’s house, but I am unable to determine which conversation was the initial complaint for the purpose of s 34M. I do not consider either conversation is admissible pursuant to s 34M. 88 I also note that for a conversation to be admissible under s 34M, it must be referable to the charged offence.105 Miss CD’s evidence that the complainant told her about the shower incident was not referable to the charged offence and was not admissible under s 34M. 89 I have only used the evidence of the conversations between the complainant and Miss CD as evidence that may: (i) rebut the defence submission that the complainant used the sentencing remarks received on 9 July 2023 as a ‘road map’ for her allegations; and (ii) amount to prior inconsistent statements by the complainant. Other lay witnesses Rather than summarising the evidence of the other prosecution lay witnesses and then repeating some aspects of that evidence, I have referred to their evidence where relevant in my discussion of the issues. It should not be inferred from the fact that I have not separately summarised the evidence of each witness here, or mentioned every aspect of their evidence, that I have not considered it. I have carefully considered all the evidence. Expert evidence 90 Ms Patricia Rayment is a clinical psychologist, registered since 1999. After obtaining tertiary qualifications she worked at the Department of Child 103 T152–153. 104 Anderson (a pseudonym) v The King [2024] SASCA 36 at [91] - [95]. 105 R v Maiolo (No 2) (2013) 117 SASR 1; R v Usher (2014) 119 SASR 22; R v Maiolo (No 3) [2014] SASCFC 89; R v Place (2015) 124 SASR 467. -- 16 of 40 -- [2025] SADC 121 15 Protection (DCP), the Child Protection Service (CPS), the University of Adelaide (clinical lecturer, 2011 to 2022) and, since November 2022, in private practice. At the DCP and CPS, she was a supervisor and trainer and undertook clinical work with children and families. At the University, she lectured master’s students on child development and assessment of child development, assessment of personality and therapy for children with child maltreatment trauma. She updated the training annually. She has been involved in projects and committees, including the responses to the Royal Commission into Child Protection in South Australia, the Adoption Review, the Yarrow Place Steering Committee, the Contact Arrangements Review Panel for DCP and researching practice guideline projects. For many years, Ms Rayment has been involved in staff training around attachment relationships and the impact of trauma on child development and behaviour. Section 29C of the Evidence Act is as follows: 29C—Evidence of opinions based on specialised knowledge of child behaviour etc (1) Despite any other provision of this Act, or any other Act or law, if a person has specialised knowledge, based on the person’s training, study or experience, of child development and child behaviour then evidence of that person’s opinion that is wholly or substantially based on that specialised knowledge is admissible in proceedings relating to sexual abuse of a child. (2) A reference in subsection (1) to an opinion of a person includes a reference to an opinion relating to— (a) the development and behaviour of children generally; or (b) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences. (3) In this section— sexual abuse of a child includes any unlawful conduct of a sexual nature committed to, or in relation to, a child. 91 There was no dispute that Ms Rayment was a person with specialised knowledge, based on her training, study or experience, of child development and child behaviour. Evidence of her opinion that is wholly or substantially based on that specialised knowledge (including an opinion relating to the development and behaviour of children who have been victims of sexual offences) is admissible in these proceedings. -- 17 of 40 -- [2025] SADC 121 16 92 The prosecution tendered two reports authored by Ms Rayment106 and called Ms Rayment as a witness to give oral evidence. Ms Rayment has not met the complainant. 93 In her reports, Ms Rayment addresses research and her experience about eight general topics: 1. why a child complainant might not immediately report the sexual offending, and why they might disclose at a particular point in time, particularly if the defendant is a friend of the family; 2. why a child complainant might make a fragmented and disjointed disclosure; 3. why a child complainant might not be able to give a chronology or identify a sequence of events, particularly in the context of the sexual offending occurring a long time ago; 4. the various ways trauma impacts victims of child sexual abuse including memory and an ability to give an account of the offending; 5. why a child complainant might not complain to a parent/trusted adult when opportunity arises to do so in circumstances where the defendant is a friend of the family; 6. why a child complainant might not cry out to seek help when others are within their vicinity including adults and/or other children; 7. why a child complainant might maintain a relationship with their offender in circumstances where he is a friend of the family; 8. why a child might show positive emotions when disclosing sexual offences. 94 In BQ v The King,107 the High Court considered expert evidence led by the prosecution from Associate Professor Shackel in a trial for child sexual offences alleged to have been committed against two of the appellant’s nieces. The plurality considered that the evidence of Associate Professor Shackel concerned the possible responses of victims of child sexual assault and was within her accepted area of expertise. The facts in issue included whether the appellant committed the alleged sexual acts upon the complainants. The evidence of Associate Professor Shackel was relevant to the assessment of the complainants’ credibility:108 The very purpose for which her evidence was led was to avoid the jury’s assessment of the honesty and reliability of AA and BB’s evidence being affected by common misapprehensions, such as there being typical responses of a child to being sexually 106 Exhibit P9: Report dated 20 January 2025. Exhibit P10: Addendum report dated 30 April 2025. 107 (2024) 279 CLR 124. 108 BQ v The King at [2], [49]. -- 18 of 40 -- [2025] SADC 121 17 assaulted and that, commonly, children who are sexually assaulted in an intra-familial context will not acquiesce but instead protest. 95 As another example, in BQ, the evidence had the capacity to rebut an attack on the complainants’ credibility because of their delay in disclosing the alleged sexual acts.109 96 I accept the evidence of Ms Rayment and have used some parts of her evidence to ensure that the complainant’s evidence is not assessed according to misconceptions about how children generally respond to sexual abuse, in terms of their memories and behaviours. The assessment of the complainant’s credibility and reliability must not be based upon, apply or ‘perpetuate outdated concepts and myths surrounding the conduct to be ‘expected’ of child complainants in sexual assault cases’.110 There exists ‘extensive research in this area’ and ‘a wealth of experience in the criminal courts demonstrating the fallacy underlying the outdated concepts’.111 97 Ms Rayment’s evidence may rebut an attack on the complainant’s credibility that is based on misconceptions, but the evidence does not bolster the complainant’s credibility. It is also impermissible to reason that because the complainant’s behaviour or account may accord with the expert evidence about child development and responsive behaviours that the unlawful sexual acts alleged by the complainant are more likely to have occurred.112 I have not used the evidence in that way. Discussion 98 The prosecution case relies solely upon the evidence of the complainant to prove the accused engaged in two or more unlawful sexual acts (that fall within particulars (a) to (i) of the charge) with the complainant in the course of the relationship. I have carefully assessed the credibility and reliability of the complainant’s evidence and considered all the evidence and the submissions of counsel. Dates, times and places 99 The complainant could not be precise about when or where the alleged unlawful sexual acts occurred or her age at the relevant times. 100 The complainant’s evidence demonstrated no knowledge of the accused’s home addresses or even the suburbs where he lived. She had little awareness of the chronology of his changes of address or the timing of his living arrangements with Ms JJ or Ms EF. For example, she gave evidence the accused lived with 109 BQ v The King at [34]. 110 AWK v Tasmania [2024] TASCCA 5 at [318] (Martin AJ, Blow CJ agreeing); see also Wood J at [276]- [280]. 111 AWK v Tasmania [2024] TASCCA 5 at [319] (Martin AJ, Blow CJ agreeing); see also Wood J at [276]- [280]. 112 BQ v The King (2024) 279 CLR 124 at [56]. -- 19 of 40 -- [2025] SADC 121 18 Ms EF ‘for a little bit’ at Ms EF’s house.113 She did not know how far away that house was from the accused’s house, ‘no idea’.114 She does not ‘remember how that looked ‘cause I, we only went there a couple of times’.115 She described there being ‘kind of swapping between his house and his partner’s house at the time’ and then living with Ms EF.116 101 The complainant estimated her age at the time of some of the alleged unlawful sexual acts. She made inconsistent statements about some of those estimates. 102 For example, the complainant’s evidence that she was around eight at the time of the (uncharged) shower incident117 was inconsistent with her prior statements. According to Miss CD, the complainant said in early February 2023 that she was probably 11 at the time of that incident.118 During the complainant’s police interview in July 2023, she told the police she was about seven.119 In her police statement on 21 June 2024, she said she was about 11.120 When asked in court about the inconsistency in her statement dated 21 June 2024, she said she was wrong about being 11 and believed she was seven or eight years of age.121 In response to being asked why she said in that statement that she was about 11, her evidence was ‘with a lot of trying to remember – trying to remember different circumstances is hard. Trying to remember the time period in between is hard. So, at most, not getting it accurate is on my end, but it’s something that I – I’m not sure’.122 Based on her evidence that the incident occurred at Ms EF’s house, I consider she was aged 10 to 12, see [64]-[66]. 103 The complainant also made inconsistent statements about her age at the time of the conduct alleged on her mother’s 30th birthday. During her court evidence, she estimated she was around eight or nine.123 In her earlier police interview, she thought she was seven124 but then said later in the interview that, based on birth years, she was 12.125 The complainant was in fact aged 11 on her mother’s 30th birthday. 104 The complainant’s difficulty pinpointing dates, her age, home addresses and chronology does not in itself cause me to doubt the credibility of her account of these allegations. I accept Ms Rayment’s evidence about child development regarding knowledge of calendar time and temporal location of events. Such 113 MFI P3A, page 32. 114 MFI P3A, page 32. 115 MFI P3A, page 32. 116 T21-22. 117 T52. 118 T80. 119 MFI P3A, page 3. 120 T53. 121 T52–54. 122 T54. 123 T30. 124 MFI P3A, page 5. 125 MFI P3A, page 30. -- 20 of 40 -- [2025] SADC 121 19 knowledge is something that is still developing in children between the ages of eight and 12. Linking an event to a date or time is a complex skill that requires knowledge of conventional calendars and the ability to infer the time period based on other cues such as events or a season. A child’s ability to organise episodic memories into lifetime periods is not fully realised until later in adolescence.126 105 The evidence about child development, if accepted, provides an explanation for why the complainant may be unable to provide accurate details about dates, her age, home addresses and chronology. 106 I consider that the complainant’s inability to provide those precise details is explained by the child development evidence and does not detract from her credibility. It does not make the allegations less likely. It also does not make the allegations more likely. 107 It is sometimes said by defence counsel that the absence of precision makes it harder for an accused to defend such allegations. However, it is fundamental to the criminal justice process that there is no onus on the accused to ‘defend’ the allegations. It may make it more difficult for an accused person to put forward a positive defence (such as alibi evidence) but there is no onus upon an accused person to prove anything. The onus is on the prosecution to prove the second element of the offence to the standard of beyond reasonable doubt. 108 Based on a careful examination of the complainant’s evidence in conjunction with other prosecution evidence, I consider that the places for the six occasions may be identified, an order of those occasions may be determined and the relevant age of the complainant may be narrowed. 109 The complainant gave evidence she could remember four occasions at ‘the accused’s house’. She gave evidence that three of the occasions occurred in the following order, namely when she was: (1) woken from a deep sleep; (2) watching the Bee movie; and (3) woken up after the Bee movie.127 Each of those occasions occurred on the couch in the lounge room at ‘the accused’s house’. She gave evidence that the ‘swimming goggles occasion’ happened in the accused’s bedroom and was the last time at the accused’s house, which makes that occasion (4). 110 I find the complainant’s reference to ‘the accused’s house’ to be a reference to the Aberfoyle Park house. During her interview on 11 July 2023, the complainant drew a plan of a house she described as the accused’s house.128 There are some similarities between her plan and the floor plan of the Aberfoyle Park house (including her placement of the loungeroom/main bedroom relative to the 126 Exhibit P9, page 4; T127. 127 MFI P3A, pages 12–13, 27: (2) happened after (1) but before (3); (2) and (3) happened on the same day. There was a submission that she gave a different order during her interview with the police but I do not consider that to be the case. 128 Exhibit P2. -- 21 of 40 -- [2025] SADC 121 20 front door and the general location of the kitchen/dining area).129 She drew the fold out couch in the loungeroom.130 Mr AB gave evidence there was ‘a fold out, sort of futon’ in the Aberfoyle Park house at least during the period they all lived there (2014 – 2015).131 111 In my view, the setting for the alleged occasions (1) to (4) is the Aberfoyle Park home. 112 I find that the relevant period for the alleged occasions (1) to (4) is when the complainant visited that address, not when she lived there. The complainant gave evidence that she could not remember living with the accused but did remember going to his house to stay the night.132 Consistent with not remembering when she lived at the Aberfoyle Park house, the complainant gave evidence that although she remembers Ms JJ was the accused’s partner before Ms EF, she believes she was too young to remember much about her.133 Ms JJ lived at the Aberfoyle Park house when the complainant lived there and I consider it likely Ms JJ moved out around the time the complainant moved out in around 2016.134 At some point, the relationship between the accused and Ms JJ ended.135 It is agreed that in 2016, Ms EF and the accused commenced a relationship and sometimes Ms EF stayed the night at the Aberfoyle Park house.136 It is reasonable to infer that by that stage, Ms JJ had moved out. 113 Also consistent with not remembering when she lived at the Aberfoyle Park house, the complainant did not label any room as her bedroom when she drew her plan of the Aberfoyle Park house. Mr AB gave evidence that the complainant had her own bedroom when she lived at the house.137 114 Further, the complainant gave evidence that occasions (1) to (3) happened on evenings when she slept on the couch. Ms EF gave evidence that the complainant slept on the couch when she stayed overnight.138 115 The complainant visited the accused at the Aberfoyle Park address from around 2016 to the end of 2017.139 She was then aged seven to nine. The complainant’s estimation of her age for occasion (1) as six/seven and for occasions (2) and (3) as seven/eight were reasonably accurate. The complainant was not asked to estimate her age for occasion (4). Based on her evidence that the setting 129 Exhibit P7. 130 MFI P3A, page 33. 131 T96. 132 MFI P3A, page 2. 133 T50. 134 Exhibit P1, Agreed facts, T96. 135 T72. 136 Exhibit P1, Agreed facts. 137 T96, 103. The accused commenced his relationship with Ms EF in 2016 and Ms EF would sometimes stay the night at the Aberfoyle Park home: Exhibit P1. Agreed facts. 138 T104. 139 Exhibit P1, Agreed facts. Ms EF gave evidence that she moved in with the accused at Christie Downs towards the end of 2017, 2018: T104. -- 22 of 40 -- [2025] SADC 121 21 for that occasion was the Aberfoyle Park house, she would have been aged seven to nine. 116 The complainant gave evidence the computer room incident happened on her mother’s 30th birthday (January 2020) at Ms EF’s house.140 Other evidence establishes that the accused was living with Ms EF at the St Marys house at that time and there was a computer room set up at the house.141 Photographs 3 to 6 of Exhibit P8 were taken on that weekend.142 I find the setting for the alleged computer room incident to be the St Marys house when the complainant was aged 11. 117 The complainant gave evidence that the hallway indecent assault was the last incident, making it occasion (6). It occurred when she was 12 at a house on Hindmarsh Island where she was living with her mother and her mother’s partner (who was her younger sister’s father).143 It was agreed the complainant moved to that house in around February 2022 and her mother remained there until at least September 2022.144 The complainant was aged 13 in February 2022. 118 The prosecutor closed on the basis that this indecent assault occurred at the Reynella house,145 which did not reflect the complainant’s evidence that it occurred at the Hindmarsh Island house. The prosecutor did not address the reason for nominating the Reynella address rather than the Hindmarsh Island address as the setting for occasion (6). 119 It is an agreed fact that the Reynella address was a property owned by Caroline Stanton.146 When answering questions about the last incident, the complainant gave evidence that it occurred in the house rented from Carolyn Stanton who was the partner of her step-dad’s mother. She did not change her evidence that the incident happened at the Reynella house, rather than the Hindmarsh Island house. 120 The complainant’s mother gave evidence that they lived at Reynella with Mr AB then moved to Queensland, then back to Reynella and then maybe an apartment in North Adelaide.147 She was not asked about living at a house on Hindmarsh Island, or renting a house from Carolyn Stanton, or where/when she lived with her younger daughter’s partner. 121 Mr AB confirmed that the complainant and her mother lived with him at Reynella, then the two of them moved out for a while and then came back to 140 MFIP3A, page 32. 141 Exhibit P4; T31, T105-106. 142 T109–110. 143 MFI P3A, pages 16-17. T20. 144 Exhibit P11, Agreed facts 2. 145 T151. 146 Exhibit P1 Agreed facts. 147 T69. -- 23 of 40 -- [2025] SADC 121 22 Reynella.148 The complainant’s evidence was that at the time of occasion (6), her mother’s partner was not Mr AB but was her younger sister’s father. There is no evidence that the complainant’s mother was in a relationship with the complainant’s younger sister’s father when they lived at Reynella or that he ever lived at that house. 122 The defence submitted the offending could not have occurred at Hindmarsh Island because the accused was in prison at the time.149 There was no evidence to support that submission. The accused was sentenced on 1 June 2022 and there is no evidence he was in custody prior to that date. They moved to Hindmarsh Island in February 2022. 123 I do not disbelieve the complainant’s evidence that the accused committed an indecent assault in a hallway at one of the houses where she lived but the prosecution has left the evidence about occasion (6) in an unsatisfactory state, did not address the difficulties in the evidence during closing submissions and did not explain why they submitted the setting was the Reynella house. This is not a reliability issue concerning the complainant but rather a failure by the prosecution to call other evidence which could have addressed the context. I am left with conflicting evidence about occasion (6) which I am unable to resolve. The prosecution has not proved occasion (6) beyond reasonable doubt. Opportunity 124 The defence did not suggest the accused never had an opportunity to be alone with the complainant but submitted that the overwhelming theme of the evidence was that there always seemed to be other people around. The complainant’s evidence that sexual acts occurred every time she visited the accused was submitted to be inconsistent with evidence from other witnesses about opportunity.150 125 I need to consider that submission with the evidence on that topic. 126 In my view, the prosecution has not proved that unlawful sexual acts occurred during the period the complainant lived at the Aberfoyle Park house. The complainant told police that she did not remember the first time because she was young.151 That statement to the police was not the subject of further explanation during examination-in-chief or cross-examination. 127 I have found that the setting for occasion (1) was the Aberfoyle Park house when the complainant was visiting and stayed overnight. In response to being asked whether the accused had done anything else that made her feel uncomfortable before occasion (1), the complainant said, ‘not from what I can 148 T99-100. 149 T174. 150 T161-163. 151 MFI P3A, page 2. -- 24 of 40 -- [2025] SADC 121 23 remember’.152 Any finding that unlawful sexual acts may have occurred prior to occasion (1) would be highly speculative and I do not make such a finding. Indeed, the defence relied upon the absence of grooming prior to occasion (1) to submit that the complainant’s account of occasion (1) was implausible and to impugn the complainant’s credibility.153 128 Because the prosecution has not proved there were any unlawful sexual acts when the complainant lived at the Aberfoyle Park house, I do not accept the defence submission that Ms JJ was ‘often there’154 at the time of any unlawful sexual acts. As discussed, the accused’s relationship with Ms JJ ended by the time his relationship with Ms EF commenced in 2016 which is around the time the complainant moved out of the house and started visiting. 129 The complainant agreed in cross-examination that she did not know of a time when she spent any length of time alone with the accused at his home.155 I consider it to be likely that when the complainant visited or stayed overnight at the Aberfoyle Park home, the accused’s two sons were also visiting or staying the night. Ms EF gave evidence that she would often go to the Aberfoyle Park house and ‘we would all hang out up there’.156 However, Ms EF did not live at the Aberfoyle Park house. It is agreed that she would sometimes stay the night.157 I accept the complainant’s evidence that Ms EF would not be there every time.158 130 I find that the complainant’s mother was never at the Aberfoyle Park or St Marys houses when the complainant visited or stayed overnight.159 The complainant’s mother gave evidence that she had no personal contact with the accused. She only saw him if he picked the complainant up or dropped her off; ‘it wasn’t anything like a visit or a coffee or anything, it was at the door or at the gate’.160 She did not know what suburb the accused’s subsequent houses were in or who was staying there.161 131 Against that background, her evidence that she would not knowingly leave the complainant alone with the accused162 was unconvincing. She attempted to explain that she believed the accused’s sons stayed overnight when the complainant stayed overnight because the accused either had the sons in the car when he collected the complainant or Ms JJ or Ms EF was in the car and the accused said he was going to pick up his sons.163 However, she did not always look 152 T24. 153 T163-164. 154 T162. 155 T52. 156 T104. 157 Exhibit P1, Agreed facts. 158 T52. 159 T68–69. 160 T70. 161 T69. 162 T72. 163 T72. -- 25 of 40 -- [2025] SADC 121 24 inside the car when the accused came to pick up the complainant164 and her evidence was contrary to Ms EF’s evidence that she (Ms EF) was never really involved in drop off or pick up.165 132 The complainant’s mother gave evidence that she recalled two instances ‘off the top of [her] head’ when the accused babysat the complainant after they moved out of the Aberfoyle Park house, ‘but there was probably like one or two other times that I can’t recall dates for’.166 That evidence was at odds with the evidence of the complainant and Ms EF about the frequency of visits and stays overnight, which I accept. Without being critical, I consider the complainant’s mother had very limited involvement in the complainant’s contact with the accused. 133 Mr AB gave evidence that after they moved out of the Aberfoyle Park house, he continued to see the accused ‘a little bit, not much’167. Mr AB had not worked with the accused since 2008.168 Mr AB did not recall the accused looking after the complainant after they moved out of the Aberfoyle Park house. He was plainly wrong about that. I prefer and accept the evidence of the complainant, Ms EF and the photographs (Exhibit P8). The fact that the complainant visited and stayed overnight at the accused’s homes during the relevant period was not challenged. 134 Ms EF initially gave evidence that sometimes Mr AB would stay when he brought the complainant over to the Aberfoyle Park house, adding that he and the accused were good friends, but then said that ‘sometimes she would just be dropped off’.169 When was asked if Mr AB sometimes stayed if the complainant was not staying overnight or if he would just drop her off, Ms EF replied that the complainant was by herself on the only times she could remember.170 She gave evidence that if the complainant was staying over, she would just stay by herself overnight on the couch.171 135 Mr AB’s memory about the complainant’s visits and his limited presence on those visits may be explained by the nature of his relationship with the complainant’s mother. He gave evidence that the complainant was two years old when he met her mother and that he lived with them for a period, on and off.172 The complainant’s mother gave evidence that her relationship with Mr AB commenced in 2010 and was on and off for about four years.173 136 In summary, I consider the setting for the alleged occasions (1) – (4) to be the Aberfoyle Park house when the accused was living there on his own, his boys 164 T73. 165 T104. 166 T68. 167 T100. 168 T101. 169 T104. 170 T104. 171 T104. 172 T95. 173 T66. -- 26 of 40 -- [2025] SADC 121 25 came to stay as part of a shared custody arrangement and Ms EF visited and sometimes stayed the night. The complainant’s mother was not there. Mr AB may have visited with the complainant on occasion but never stayed overnight. 137 Occasion (1) is alleged to have happened at night on the couch where the complainant was sleeping. The complainant was not sure whether there was anyone else in the house at the time.174 In my view, the accused’s two sons were probably staying the night. Ms EF may or may not have stayed overnight. 138 On the alleged occasion (2), the complainant gave evidence that the accused’s sons were present watching a movie with the complainant and the accused. The alleged occasion (3) happened later that night. In my view, it is probable that the accused’s sons stayed overnight. Ms EF may or may not have been staying overnight. 139 Occasion (4) is alleged to have happened about midday when the complainant believed no one else was home.175 In my view, there are many scenarios that might have resulted in the accused being at home alone with the complainant. His two sons may not have yet arrived to visit/stay, may have left after their visit/stay, may have been out with Ms EF, or it was not a planned time for them to visit/stay. Ms EF did not live at the Aberfoyle Park house. She may have been at her house or gone out for any number of reasons. 140 On the alleged occasion (5), the complainant was at the St Marys house with the accused, his two sons, Ms EF and her two children. 141 I am satisfied the accused had the opportunity to engage in the unlawful sexual acts the subject of the identified occasions (1) to (5). The alleged conduct was brazen. In particular, the complainant alleges that on occasions (2) and (5) there were other children either on the same couch or in the same room. 142 I consider that the accused had greater opportunity when he lived at the Aberfoyle Park house because Ms EF did not live at that house and only sometimes stayed the night. The complainant gave evidence that Ms EF was not there every time and agreed the accused’s sons ‘would be there’.176 She agreed that she did not stay at the accused’s place or spent any length of time there alone.177 143 It is difficult to assess the credibility of the complainant’s evidence that unlawful sexual acts would occur every time she was around the accused.178 There was no evidence about the type of unlawful sexual acts alleged or the circumstances. The evidence is so nebulous that I have not used it in support of 174 T24. 175 MFI P3A, page 3; T28. 176 T52. 177 T52. 178 T20. -- 27 of 40 -- [2025] SADC 121 26 the prosecution case, see [60]-[63]. The speculative nature of the evidence is such that I do not consider it supports or detracts from the complainant’s credibility. Grooming 144 The defence submitted that one of the reasons why the complainant’s evidence should not be accepted beyond reasonable doubt is that there is no evidence of any grooming or favouritism by the accused. It makes the complainant’s evidence very unusual and the first alleged occasion implausible. The complainant’s evidence that the accused bought her lollies was said to be insignificant and no one noticed anything unusual.179 145 The complainant gave evidence that she asked the accused for toys or lollies less than 10 times when she was aged six to 12. If they were out somewhere and she asked for something she wanted, the accused would say, ‘only if you’re good later tonight’ or ‘only if you’re good’ and she felt ‘just confused a bit’.180 No one else was around when he said that. She would say ‘okay’ because ‘[she] was young and wanted the toy’.181 She got the toy. The Bee Movie was one time when that scenario happened. 146 Mr AB gave evidence he saw the accused give the complainant chocolates and lollies when the boys were over, ‘it would have been sharing’.182 Ms EF gave evidence the accused could have given the complainant lollies just like his own sons, nothing more fatherly or less fatherly.183 She has no memory of ‘anything that stuck out that was abnormal or improper’.184 147 I find that the accused did give the complainant lollies and toys. Outwardly, that behaviour is not necessarily ‘grooming’ behaviour. It may simply be the behaviour of a generous and caring man treating the complainant in the same way that he might do his two sons. However, the complainant was not the accused’s daughter and her evidence of what he said to her, if accepted, is grooming behaviour. 148 Mr AB and Ms EF did not regard the accused’s provision of lollies to the complainant to be untoward or believe they witnessed anything abnormal or improper. However, grooming behaviour may be done in a way that does not cause other adults to notice anything untoward. On the complainant’s evidence, the other adults were not present when the accused made the deal with her that she be a ‘good girl’. She also gave evidence that the accused would otherwise ‘behave pretty normal, like he wouldn’t make it known that he was doing anything’.185 179 T162–163. 180 T34–35. 181 T34. 182 T100. 183 T112. 184 T112. 185 MFI P3A, page 24. -- 28 of 40 -- [2025] SADC 121 27 149 The complainant gave evidence that on one occasion she started complaining about what he was doing. He used to threaten her, ‘he used to say if you ever tell anyone I’ll get all your toys taken away just like all the other little girls’.186 The complainant’s evidence, if accepted, was evidence of controlling behaviour on the part of the accused and related in subject matter to his earlier grooming. 150 Depending upon the nature of the conduct, grooming behaviour may be discreditable conduct evidence. The complainant’s evidence of the accused’s threat is discreditable conduct evidence. I have not used that evidence to reason that the accused is a bad person and so is a person more likely to have committed this offence. The use of the evidence is limited to explaining why the complainant may not have told anyone about the alleged unlawful sexual acts, cried out for help and/or submitted. 151 Grooming behaviour may be conduct that is not outwardly discreditable. Trust and dependency can be established in different ways. The complainant’s mother gave evidence they lived with the accused at the Aberfoyle Park house for four to six months.187 He was not a stranger to the complainant by the time of these allegations. The accused continued his relationship with the complainant but did not continue a relationship with the complainant’s mother or much of a relationship with Mr AB. He gave Ms EF an explanation for his ongoing relationship with the complainant in those circumstances. Ms EF gave evidence that the accused ‘would always go on about [the complainant’s mother’s] mental health problems and how [the complainant] was neglected and how she would be left alone gaming all weekend. So with us at least she had nutritious food, and some, you know, vitamin D from the sun and she wouldn’t be left alone all weekend’.188 In my view, the accused established trust and dependency by looking after the complainant as if she was one of their own children, providing her with food, taking her out places and involving her in what his sons were doing.189 152 The defence submitted that the complainant seemed to enjoy spending time with the accused and his sons. 190 That submission reflected the evidence given by Ms EF who said the complainant seemed happy to come with them on the occasion of the 30th birthday, ‘she enjoyed hanging out with us, with the boys’.191 153 I do not consider the evidence that the complainant seemed to enjoy ‘hanging out’ with the accused’s family to be inconsistent with her allegations that the accused was engaging in sexual acts with her. In my view, the accused groomed the complainant to make her feel part of the family. He wanted and needed her to 186 MFI P3A, page 22. Counsel did not make submissions about the reference to the ‘other little girls’. If that reference may be construed as evidence of discreditable conduct, I indicate that I have not placed any weight or reliance on it. I have deleted the reference to the ‘other little girls’. 187 T67. 188 T110. 189 T110–111. 190 T162-163 191 T113. Mr AB also gave evidence that from his observations, the complainant enjoyed ‘hanging out’ with the accused and his sons: T102. -- 29 of 40 -- [2025] SADC 121 28 enjoy ‘hanging out’ with them. He showed her favouritism in the sense that she was not a member of the family, but she was made to feel like she was. 154 The complainant gave evidence she told her mother on the occasion of the 30th birthday party that she did not want to go but was told ‘like no you’re going, like, you, you have to go’.192 The complainant’s mother gave evidence that when the complainant was picked up by the accused and Ms EF on her 30th birthday, the complainant did not want to go and ‘did kick up a bit of a fuss about it’.193 155 I have not relied upon the complainant’s mother’s evidence on this topic. First, I did not consider the complainant’s mother to be a generally reliable witness. For example, I do not consider she is correct in recalling that the accused and Ms EF picked the complainant up from the party. I prefer Ms EF’s evidence that they were at the 30th birthday, the children were swimming in the pool and the complainant drove back with them.194 The photographic evidence supports Ms EF’s evidence.195 Second, the complainant’s mother did not describe what the complainant did to cause her to think the complainant did not want to go and describe it as ‘did kick kicking up a bit of a fuss’. It had no factual foundation and was inadmissible opinion evidence. If the complainant did or said something to that effect, it was not witnessed by Ms EF who described the complainant as being happy to come back with them.196 Third, if there was unhappy conduct on the part of the complainant, there may be many reasons why an 11 year old might not want to leave her mother’s birthday party. 156 However, I accept the complainant’s evidence that she was reluctant to go. She gave evidence that she wore tight jeans to make it harder for the accused to take them off.197 157 I do not consider the fact that the complainant continued to visit, and Ms EF’s observations that the complainant ‘enjoyed hanging out with us’, detracts from the credibility of the complainant’s allegations. It is a misconception to expect that if a child’s allegations of sexual abuse are true, then they would have ended the relationship with the offender. Ms Rayment gave evidence that research and her experience shows that child complainants of sexual abuse may maintain a relationship with an alleged perpetrator for several reasons, including the existence 192 MFI P3A, page 5. 193 T70. 194 T105. 195 Exhibit P8. 196 T137. The complainant’s mother gave similar evidence about her 29th birthday, namely, that when the accused arrived to pick the complainant up from the Ibis Hotel, the complainant did not really want to go: T69-70. The complainant’s maternal grandmother gave evidence, however, that the accused was at lunch for the 29th birthday: T114-115. I do not consider either to be a reliable witness on this topic and do not consider it necessary to resolve the inconsistency. The complainant’s mother’s observation, if accurate, does not prove anything. There could be many reasons why the complainant might not want to leave her mother’s birthday party. The complainant did not give evidence about the 29th birthday party. I have not placed any reliance on the evidence about the 29th birthday party. 197 MFI P3A, page 8. -- 30 of 40 -- [2025] SADC 121 29 of other positive aspects of the relationship, dependency and emotional support.198 The complainant visited the accused from age seven to 12. There were positive aspects to her contact with the accused as described by Ms EF, including playing with his two sons and gaming on the computers. As set out above at [94]-[97], the expert evidence does not bolster the complainant’s credibility nor can it be used to reason that the allegations are more likely. The unlawful sexual acts 158 The defence submitted that the complainant’s evidence about occasion (1) was very unusual and implausible because of the lack of grooming and evidence of preferential treatment.199 159 The complainant’s evidence is that on occasion (1), the accused performed cunnilingus and tried to put his penis into her vagina and anus. I have found that the prosecution has not proved that there were unlawful sexual acts prior to occasion (1), see [126]-[127]. The point made by the defence is that it is implausible that the accused would commit such significant sexual acts for the first time because, for example, he did not know how the complainant would respond to sexual acts; it was implausibly risky behaviour. The effect of the submission is that it would be more plausible/usual for a complainant to give evidence of escalating sexual acts, commencing with conduct less serious than that alleged by the complainant on occasion (1). 160 The alleged unlawful sexual acts on occasion (1) involve brazen and risky conduct on the part of the accused. However, the complainant was aged seven to nine years old at the time. She was sleeping alone in the lounge room. It was night time. If the accused’s sons were sleeping over, their bedroom was at the other end of the house. The accused may have chosen a night when Ms EF did not stay over. The complainant did not have her mother around, nor Mr AB. No other adult was there to help her. If she protested, the accused’s sons might have woken but they too were children. 161 The first sexual assault upon a child always carries a risk that the child may tell someone later. Even though the accused had not groomed the complainant by committing prior sexual assaults, I consider that he had been grooming her by creating a relationship of trust and welcoming her as part of the family. He was in a position of power. For such a young child in that scenario, it is not surprising that she was scared and did not say anything because she was too scared.200 162 I do not consider the complainant’s evidence about occasion (1) to be implausible. 198 Exhibit P9, pp 7–8; T138. 199 T162 – 164. 200 T24. -- 31 of 40 -- [2025] SADC 121 30 163 The defence submitted that the complainant described in her police interview another occasion as the first occasion. I do not agree with that submission. The prosecution also opened on the basis that occasion (2) was the first occasion, but I do not agree, and the opening address is not evidence. 164 During the interview, the complainant gave an account of occasion (2). She was then asked ‘and so was this before the, the time when you woke up and your pants were down or after the time when you woke up and your pants were down’. She replied ‘after. But this was before I was sitting on his lap, facing that way. Because that was later in the night when I had fallen asleep, after the movie. That was the same day.’201 Occasion (1) was the time she woke up and her pants were down. Occasion (3) was the time when she was ‘sitting on his lap, facing that way’. She says in her interview that occasion (2) was after occasion (1) and before occasion (3). Occasions (2) and (3) happened on the same night. 165 The defence submitted that the complainant’s evidence about occasion (2) lacks credibility. First, the accused’s two sons were sitting on the couch at the time. Second, it was not until just before trial that the complainant mentioned the existence of a blanket over them all on the couch. It was submitted that her motive for doing so at such a late stage is questionable because the existence of a blanket provides the opportunity for the accused to offend that did not exist on her original version.202 166 During cross-examination, the complainant agreed that the first time she mentioned a blanket was in the few days before giving evidence.203 She explained that ‘there’s certain things that only pop up at certain times with me, so I don’t remember everything in one go’.204 She denied a last minute invention of a blanket to try and explain how the accused could hide the alleged offending. 167 On the complainant’s account of occasion (2), the accused’s conduct was brazen, but that does not make it unlikely. The two potential witnesses were the accused’s sons who were both younger than the complainant and were watching a movie designed to entertain children. The accused also knew by this stage that the complainant had submitted on the earlier occasion. 168 When the complainant was interviewed by the police, she did not mention anything about a blanket or quilt. She disclosed that information just before trial. I accept Ms Rayment’s evidence that it is a misconception to expect that a child will disclose everything at one time; research shows that disclosure is multifaceted, contextual, and likely to be iterative, taking place over time, rather than a discrete event.205 201 MFI P3A, pages 13–14. 202 T167. 203 T50. 204 T52. 205 Exhibit P9, page 3. -- 32 of 40 -- [2025] SADC 121 31 169 I also note that in the interview, after the complainant described the accused’s conduct, the interviewer did not question her for further detail. In particular, she was not asked whether there was anything covering her or the accused when he put her hand into his pants. This is not a situation where the complainant was asked and could not remember or gave a different answer. In all the circumstances, I do not consider the complainant’s fragmented disclosure about the blanket/quilt detracts from the credibility of her account. 170 The complainant gave evidence that occasion (3) happened on the same evening/night as occasion (2). The circumstances were like occasion (1) in that the complainant was sleeping alone in the lounge room. If the accused’s sons were sleeping over, their bedroom was at the other end of the house. It may have been a night when Ms EF did not stay over. The complainant did not have her mother around, nor Mr AB. There was no other adult there to help her. If she protested, the accused’s sons might have woken but they too were children. The accused also knew by this stage that the complainant had submitted and made no complaint on two prior occasions. 171 The defence submitted that the complainant’s evidence about the swimming goggles incident lacked credibility. On her account, the offending happened during the day. It is unlikely that such an event could occur when other people were in the house because of the risk of interruption. No one gave evidence about seeing such a pair of goggles in the accused’s possession nor was a pair found in his possession.206 172 I do not agree that the complainant’s evidence lacked credibility. No other adult lived with the accused at the Aberfoyle Park house. The complainant gave evidence that she did not believe anyone else was at home on occasion (4). Such a scenario is possible, but even if the accused’s sons were home, it is also possible that they were otherwise occupied. There was no evidence about any search of the accused’s possessions, however, the alleged offending was around seven years prior to the complainant’s report to the police and so the absence of evidence about a search for goggles does not cause me to doubt the prosecution’s proof of the allegation. 173 The defence submitted that one of the most significant issues adverse to the complainant’s credibility arises from the evidence that she read the sentencing remarks two days prior to her police interview. The possibility that she has used the sentencing remarks as a ‘road map’ to make these allegations cannot be excluded.207 174 I do not agree with the submission that she has used the sentencing remarks as a ‘road map’ to make all these allegations. The evidence of Miss CD rebuts the suggestion that the complainant invented these allegations against the accused after 206 T167–168. 207 T168. -- 33 of 40 -- [2025] SADC 121 32 reading the sentencing remarks. Both Miss CD and the complainant gave evidence that it was in February 2023 that the complainant disclosed that the accused had sexually assaulted her. There is discrepancy about the extent of what was said by the complainant and where it was said, but there is no discrepancy about when the complainant disclosed sexual offending by the accused. 175 Miss CD gave evidence that there were some further conversations about these allegations just after they originally spoke in the school bathroom.208 That hearsay evidence is also admissible to rebut a suggestion the complainant invented these allegations after reading the sentencing remarks. I have not used that hearsay evidence for any other purpose. I am satisfied that before 9 July 2023, the complainant disclosed to Miss CD that the accused had sexually abused her. It was not suggested to Miss CD that the complainant never mentioned these allegations until 9 July 2023. 176 A comparison of the sentencing remarks with the complainant’s allegations refutes the suggestion that the former was used by the complainant as a ‘road map’ for the latter. The complainant’s allegations are more extensive. 177 The defence focussed upon the possibility that the complainant used the sentencing remarks as a ‘road map’ for occasions (4) and (5). In my view, the sentencing remarks share minor commonality with the complainant’s account of occasion (4) and more significant commonality with occasion (5). 178 In relation to occasion (4), the complainant gave evidence that the accused may have used his mobile phone to record what he was doing. The defence submitted that it is not possible to exclude the possibility the complainant has adopted from the sentencing remarks the idea of the accused videoing his offending because she would have read that the accused filmed the indecent assault.209 179 The complainant gave evidence in court that before the accused put the swimming goggles on her she noticed his phone was set up in a position where it was easy access for him to record; it was on its side leaning up against something.210 During cross-examination, it was suggested that she tailored her evidence to fit in with what she had read. The complainant denied that suggestion, saying that she was not 100 per cent sure that the phone was on record but that she did see it set up to a point where it looked like it would have been filmed.211 She repeated her denial of tailoring her evidence to something the accused has done to someone else, namely, taken videos.212 She said ‘I gave my evidence because I got to a point where I felt like it was the right time to say something and in the moment said it 208 T85–86. 209 T168. 210 T27. 211 T42–43. 212 T43-44. -- 34 of 40 -- [2025] SADC 121 33 and then found out beforehand, yes, about his case, but I was already going to speak up about it regardless’.213 180 Defence counsel submitted that the complainant did not mention anything about occasion (4) being recorded until after she had read the sentencing remarks.214 181 I do not agree. Miss CD gave evidence that the complainant told her about the blindfolding and video in February 2023 during their conversation in the school bathroom.215 Miss CD disagreed with the suggestion that she found out about that much later than the conversation in the bathroom ‘because I asked her about the play time and she said yeah, she got blindfolded and recorded’.216 182 Defence counsel submitted that there could be no confidence that what Miss CD now recalls being told in the school bathroom was in fact said at that time, rather than later; there were other conversations between Miss CD and the complainant on the topic. 217 Further, Miss CD disclosed that she had been the victim of sexual abuse and that may impact the reliability of her recall of what the complainant told her.218 Defence counsel referred to Ms Rayment’s evidence219 to support his submission.220 The disclosure could be a retrieval cue that may prompt a person’s own memories. If they were to freeze in response then they may struggle to remember or be more focused on the things that had happened to them rather than what they were being told.221 183 It was not suggested to Miss CD in cross-examination that the complainant made no mention of the blindfolding and recording until after the complainant had the sentencing remarks. It was put to her that she found out about that ‘much later’ than in the school bathroom, which she denied.222 184 I accept Miss CD’s evidence that she was told about the blindfolding and recording in February 2023. Once she understood the proposition that was being put to her in court, her evidence was clear that the complainant told her about that in February 2023. That evidence is admissible for the purpose of rebutting the defence suggestion the complainant concocted that part of her account or used the sentencing remarks as a ‘road map’ for occasion (4). It is agreed that the complainant did not receive the sentencing remarks until 9 July 2023.223 213 T43–44. 214 T170–171. 215 T86. 216 T86 – 88. 217 T169. 218 T170. 219 T140 – 142. 220 T170. 221 T141. Exhibit D5, Sentencing remarks dated 1 June 2022. 222 T85-88. 223 Exhibit P11, Agreed facts 2. -- 35 of 40 -- [2025] SADC 121 34 185 I found it difficult to follow and unravel the defence submission about the evidence of the complainant’s aunt on this issue.224 It seems the defence submission is that the complainant told her aunt about the blindfolding and recording shortly after receiving the sentencing remarks. 186 During cross-examination, the complainant agreed with the suggestion that a few days before her police interview she first mentioned to her aunt that something had occurred.225 She agreed with the suggestion that she told her aunt the accused had blindfolded her, meaning with the blacked-out goggles. She thought she mentioned to her aunt that she thought the accused was taking videos. She denied saying to her aunt that the reason why she thought he was taking videos was because the accused had done the same thing to another girl.226 There was no evidence from the complainant’s aunt that the complainant said that. 187 The complainant gave evidence that when she first told her aunt, all she needed to say to her aunt was that the accused was a paedophile. She did not remember telling her aunt anything else. They were having an argument. She had not received the sentencing remarks by that stage, so when she described the accused as a paedophile, she was referring to herself.227 188 The complainant’s aunt gave evidence that the first conversation she had with the complainant about the accused was on the Monday before the July school holidays in 2023. The complainant may have spoken to the school counsellor the next day and then the police were in contact maybe on Thursday or Friday or even the following week. The complainant disclosed that she had found out the accused was in custody for the same sort of thing after the school contacted the complainant’s aunt to tell her the complainant had disclosed something to a counsellor.228 189 The complainant’s aunt was not cross-examined about the content of her conversation/s with the complainant. If the complainant is correct that she mentioned the video recording when she first spoke to her aunt, then the timing of that (based on the evidence of the complainant and her aunt) is prior to the complainant’s receipt of the sentencing remarks. However, the evidence on this topic was left in an unsatisfactory state. For example, the aunt was not asked whether the complainant mentioned the blindfolding and recording and if so, when that conversation occurred. As it stands, the evidence does not support the suggestion that the complainant used the sentencing remarks as a ‘road map’ for occasion (4) but tends to rebut it. 190 I do not need to rely upon the evidence of conversations between the complainant and her aunt for that purpose because I consider that the evidence of 224 T168, 171. 225 T43. 226 T43. 227 T44–45. 228 T93. -- 36 of 40 -- [2025] SADC 121 35 Miss CD rebuts that suggestion. I have not used the evidence of conversations between the complainant and her aunt for any hearsay purpose or to buttress the complainant’s general credibility. I have only had regard to the evidence for the purpose of considering the defence submission that the possibility the complainant used the sentencing remarks as a ‘road map’ for occasion (4) cannot be excluded. 191 There is another difficulty with the defence submission that the complainant used the sentencing remarks as a ‘road map’ for what she told police in July 2023 about occasion (4). The complainant did not mention anything about the accused’s phone, use of his phone or a recording when she spoke to the police about that occasion. She knew about the sentencing remarks by that stage but her silence to the police on that aspect does not support the contention that she was tailoring her account to match what she had read two days earlier. 192 I find that the evidence excludes the possibility that the complainant used the sentencing remarks as a ‘road map’ for occasion (4). 193 There are similarities between the complainant’s account of occasion (5) and the description in the sentencing remarks of the accused’s indecent assault of the victim, but there are also differences. It does not accord with common sense that the complainant decided to use the sentencing remarks as a ‘road map’ for this occasion but embellished them by making up that the accused’s sons were in the computer room at the relevant time. There is also no suggestion by the complainant that the accused recorded the indecent assault on occasion (5), which is a feature of the indecent assault in the sentencing remarks. 194 The defence submitted that one of the doubts about the complainant’s account of occasion (5) was the lack of opportunity because of the presence of others. 195 Ms EF gave evidence that photo 6 in Exhibit P8 was taken in the computer room at the St Marys house on the weekend of the complainant’s mother’s 30th birthday party. It shows four children (Ms EF’s son, the accused’s sons and the complainant) in the computer room at separate computer stations with headphones on.229 One of the accused’s sons is sitting in the chair at the accused’s station. 196 In my view, the conduct alleged by the complainant was brazen but the computer room set-up gave the accused the opportunity to commit the unlawful sexual act as she described. Headphones may have been worn by other participants in the computer room who would have been sitting at stations on the left hand side table with their backs to the accused and complainant. Ms EF gave evidence that she was ‘busy chasing after a two-year-old as well so [she] was preoccupied at the time but [she doesn’t] remember anything of significance really happening that day’.230 229 T29. 230 T106. -- 37 of 40 -- [2025] SADC 121 36 197 I find that the evidence excludes the possibility that the complainant used the sentencing remarks as a ‘road map’ for occasion (5) and I do not consider the accused lacked opportunity. Inconsistent statement to the complainant’s grandmother 198 The complainant’s grandmother was cross-examined about a conversation she had with the complainant in July 2023 at the complainant’s mother’s home. She agreed that the complainant said the accused had ‘put his thing in me’ and mentioned something about white stuff.231 In re-examination, she gave evidence that the complainant was crying, upset, distraught and shaking. The conversation took five or 10 minutes ‘because my other grandson was coming down the hallway’.232 199 The complainant gave evidence she had a conversation over the phone with her grandmother shortly after she spoke to her aunt about the accused. She was asked whether she told her grandmother that the accused had ‘put his thing in me’ or mentioned anything to her about ‘white stuff’. She replied, ‘not that I remember’.233 She agreed that if she had told her grandmother that the accused ‘put his thing in me’ or mentioned ejaculate then that would not be true.234 200 The evidence was not admissible as complaint evidence pursuant to s 34M of the Evidence Act and I have not used the evidence for that purpose. I have not used the evidence for any hearsay purpose. I have not used the evidence to buttress the complainant’s credibility. 201 The evidence of the complainant’s state at the time was not admissible as ‘distress evidence’ for a credibility or circumstantial purpose235 and I have not used the evidence as ‘distress evidence’. The only relevance of the evidence of the complainant’s state at the time is to assess the ability of the complainant’s grandmother to follow what the complainant was saying. I have only used the evidence of the complainant and her grandmother on this topic to assess the submission made by defence that it is evidence of prior inconsistent statements. 202 Defence counsel submitted that the grandmother’s evidence about the conversation should be accepted because she is an adult and she gave evidence in a clear way.236 I do not consider the first reason is a reason why her evidence should be accepted. Adults can be unreliable witnesses and there is no general rule that an adult is a more reliable witness than a child. It is difficult to assess the meaning of the submission that she gave her evidence in a clear way. The grandmother answered two leading questions with ‘yes’. Her evidence about the conversation conflicted with the complainant’s evidence (including it being in person rather than 231 T145–146. 232 T146. 233 T46. 234 T46–47. 235 Nelson (a pseudonym) v The King [2025] SASCA 79 (S Doyle and David JJA) at [137]-[144]. 236 T173. -- 38 of 40 -- [2025] SADC 121 37 on the phone) and her evidence about the 29th birthday party conflicted with the complainant’s mother’s evidence. The complainant’s evidence on this topic was no less clear than the evidence of her grandmother. 203 The complainant’s state at the time of the conversation may have adversely impacted the ability of the complainant’s grandmother to hear and follow what the complainant was saying. The grandson coming down the hallway may have been distracting. 204 More significantly, the grandmother’s evidence that the complainant mentioned something to her about ‘white stuff’ does not engender a sense of reliability or accuracy in her recall of the conversation because it begs the question, what did the complainant mention about ‘white stuff’? Did the complainant say there was no ‘white stuff’? Or did the complainant say that she did not know if there was ‘white stuff’? What was the context? Similarly, the grandmother’s evidence that the complainant said ‘put his thing in me’ begs the question, what did she say about that? Did the complainant say he did not ‘put his thing in me’ or say he tried to ‘put his thing in me’? What was the context? The grandmother’s inability to give evidence about the context indicates that she does not have a good memory of the conversation. 205 Even if I accepted that the grandmother is reliably recalling those parts of the conversation (which I do not), I am not prepared to use those two snatches of a five to 10 minute conversation – ‘white stuff’ and ‘put his thing in me’ – as evidence of prior inconsistent statements made by the complainant. They are unable to be so characterised because of the lack of context. Beyond reasonable doubt 206 The prosecution must prove that the complainant is an honest, credible and reliable witness. I found her to be such a witness. I have considered her evidence, how it fits with other evidence and all submissions made on behalf of the accused. 207 On the whole of the evidence, and notwithstanding the defence submissions, I find that the prosecution case has proved the offence beyond reasonable doubt.237 208 I am satisfied beyond reasonable doubt that the accused engaged in the unlawful sexual acts as described by the complainant on occasions (1) to (5). I am satisfied beyond reasonable doubt that he: (a) performed an act of cunnilingus upon the complainant on more than one occasion;238 237 R v Schulz (2016) 126 SASR 476 at [35] (Vanstone J, Blue and Lovell JJ agreeing); R v Ahmadi, R v Hosseini, R v A,N; R v M,A (2018) 131 SASR 64. 238 Occasions (1) and (4). -- 39 of 40 -- [2025] SADC 121 38 (b) attempted to insert his penis into her vagina on one occasion;239 (c) attempted to insert his penis into her anus on one occasion;240 (d) caused the complainant to touch his penis on one occasion;241 (e) rubbed his penis down her torso on one occasion;242 (f) rubbed his penis on her genitals on more than one occasion;243 (g) caused her to perform an act of fellatio upon him on one occasion;244 and (h) touched her genital area on one occasion.245 209 I find the second element of the offence proved. I am satisfied beyond reasonable doubt that the accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship. Verdict 210 I find the accused guilty of the offence. 239 Occasion (1). 240 Occasion (1). 241 Occasion (2). 242 Occasion (4). 243 Occasions (3) and (4). 244 Occasion (4). 245 Occasion (5). -- 40 of 40 --