[2025] SADC 134

Prosecution: R Counsel: MR G DUDZINSKI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: NOEL JOHN WILLIAMS Counsel: MRS J POWELL SC - Solicitor: WOODS & CO LAWYERS Hearing Date/s: 01/09/2025, 02/09/2025, 03/09/2025, 04/09/2025, 08/09/2025 File No/s: DCCRM-24-050355 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 NOEL JOHN WILLIAMS Criminal Trial by Judge Alone [2025] SADC 134 Reasons for the Verdict of his Honour Auxiliary Judge Barrett 24 November 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY The accused is charged with sexual abuse of his step-daughter from when she was aged between 10 and 14. The accused gave evidence denying the charge. Held: The accused is guilty. Evidence Act 1929 (SA) ss 9, 34, referred to. Liberato v R [1985] HCA 66; De Silva v The Queen [2019] HCA 48; Rezaei v R [2024] SASCA 150; R v C,CA [2013] SASCFC 137; Eddy (a pseudonym) v The King [2024] SASCA 115; R v Jones [2018] SASCFC 80; Kendall v The King [2024] SASCA 54; Douglass v The Queen [2012] HCA 34, considered. -- 1 of 48 -- -- 2 of 48 -- R v NOEL JOHN WILLIAMS [2025] SADC 134 1 The accused is charged with Sexual Abuse of a Child. I reproduce the Information. Statement of Charges Offence Details: Sexual Abuse of a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935) Particulars Noel John Williams between the 24th day of June 2018 and the 29th day of November 2023 at Murray Bridge and other places, being in a position of authority in relation to SAM, a person under the age of 18 years, maintained an unlawful sexual relationship with SAM by engaging in two or more unlawful sexual acts with or towards her, namely: a) touching her breasts on more than one occasion; b) touching her genital area on more than one occasion; c) inserting his finger or fingers into her vagina on more than one occasion; d) inserting his penis into her vagina on more than one occasion; e) inserting his penis into her anus on more than one occasion; f) kissing her on the face and neck on more than one occasion; g) masturbating his penis in her presence on more than one occasion; h) sucking her breasts on more than one occasion; and i) taking a photographic image of her breasts, genital areas and of her engaging in a sexual activity on more than one occasion. … Overview 2 It is alleged that the accused sexually abused his step-daughter for about four years between the ages of 9 and 14. He was aged between 26 and 31 at the time. The complainant is now 16. The accused is 33. 3 The accused and the complainant’s mother, RH, began living together in Murray Bridge in late 2017. At that time, the complainant and her two siblings were living with their father in Adelaide. More correctly, he was the father of the complainant and one other child. The eldest had a different father. In 2017 the complainant and her younger brother were aged 8 and 4. Her eldest brother was aged 9. -- 3 of 48 -- [2025] SADC 134 2 4 In 2021, the accused and RH had a daughter, E. 5 When the complainant’s mother and the accused met they were both living in Murray Bridge. The accused was living on a property owned by his mother. There were three houses on that property – a large house, a transportable house and a granny flat. The accused lived with his mother in the large house. RH moved in in about August 2017. Her children moved in permanently around Christmas time that same year. Before that they had occasionally stayed on access visits. 6 In early 2018 the accused’s mother moved into the granny flat. The accused’s sister and her son lived in the transportable house. 7 The accused started a metalwork apprenticeship in October 2018. RH stayed at home. The couple moved to Elliston in December 2022. RH’s eldest child, C, did not move to Elliston with the family. He stayed in Murray Bridge with the accused’s mother. 8 While in Elliston the accused worked on farms away from the homestead they rented near Elliston. 9 The complainant says that the accused started sexually abusing her about six months after she and her siblings moved in with their mother in Murray Bridge. The abuse continued until shortly before it was reported to police in November 2023. Course of the trial 10 The complainant took part in two prescribed interviews with police, one on 3 December 2023 and the other on 28 February 2025. She gave evidence in Court. The prosecution called the complainant’s mother, RH, her aunt and uncle, CH and WH, her grandfather, IH and his wife, MH. The prosecution also called the accused’s mother, Jayne Brown, a friend of hers, Nicole Sward, a Psychologist, Mr Srdjan Vajdic and the officer-in-charge, Brevet Sergeant Jasmine Taylor. Exhibits were tendered, including Agreed Facts.1 11 The accused gave evidence but called no witnesses. Evidence of the complainant, SAM 12 Without objection from defence counsel a USB containing both the prescribed interviews was tendered as Exhibit P2. A booklet of transcripts of both the interviews was marked MFI P2A. 13 The interviews were admitted pursuant to s 13BA of the Evidence Act 1929 (SA). I am satisfied that the complainant was at the time of each interview capable of giving unsworn evidence. At the beginning of each interview questions were asked of the complainant to enable the provisions of s 9 of the Evidence Act to be 1 Exhibit P8. -- 4 of 48 -- [2025] SADC 134 3 satisfied. At the time of the first interview on 3 December 2023, the complainant was aged 14 years and 5 months. She was aged 15 years and 8 months at the time of the second interview on 28 February 2025. On each occasion the complainant’s exchanges with the interviewing officer indicated that she understood the difference between the truth and a lie (s 9(2)(a)(i)).2 She was told that it was important to tell the truth3 and she indicated that she would tell the truth4. Before the complainant gave evidence in Court on 1 September 2025, when she was aged 16 years and 2 months, I spoke to her on the same topics, except that I asked her about her understanding of the obligation to be truthful in giving sworn evidence.5 In my view, the complainant was capable of giving sworn evidence in Court. Mrs Powell for the defence made no submission to the contrary.6 14 I turn to the first interview on 3 December 2023. The complainant said that the accused molested her. In the course of the interview, she described each of the unlawful acts particularised in the Information. 15 Senior Constable Sarah Fealy (Fealy) was the interviewer. When the complainant began her account by saying that the accused molested her, Fealy questioned her about the last time that happened.7 The complainant said that the incident occurred a little over two weeks earlier. She said that the accused would apply an acne treatment to her back using wipes. On that last occasion he was doing that in the bathroom. In the course of doing that, he grabbed her breasts from behind. He was saying how much he loved her. He wanted her to kiss him. He was sucking her breasts. He was masturbating himself. When he heard RH approach, he stopped. He put his penis back into his track pants and ran to the separate toilet. The complainant went back to the lounge. Later the accused went outside for a smoke. The acts alleged on this occasion refer to particulars (a), (g) and (h) in the Information. 16 Fealy then asked the complainant about the first time anything happened.8 The complainant said it was in Murray Bridge. It had happened about four years earlier when she was 10 years old. At about 10:00am on a weekend the accused got the complainant to come into his bed. There the accused touched her underwear and rubbed her vagina. It went on for five or 10 minutes. No-one else was in the room. This equates to particular (b) in the Information. 17 Fealy then asked the complainant about the clearest time.9 The complainant said it happened when the family lived in Elliston. 2 MFI P2A pp 3-6. 3 Section 9(2)(a)(ii). 4 Section 9(2)(b). 5 Section 9(5). 6 T23-T24. 7 MFI P2A pp 3-6. 8 MFI P2A pp 6-9. 9 MFI P2A pp 9-13. -- 5 of 48 -- [2025] SADC 134 4 18 The accused occasionally had to drive several kilometres from the farmhouse where they were living to check on the water tanks. He would sometimes take the complainant with him. On this occasion, he stopped the car in a spot surrounded by trees. He got out and came around to the front passenger seat. He pulled the complainant’s pants and underwear down and took off her shirt and bra. He got her to lean back against the passenger seat. He touched her vagina. He then had penile/vaginal intercourse with her. He took photographs of her. He stopped what he was doing when the complainant’s mother rang asking where he was. They both got dressed. The complainant was crying. The accused kept asking her if she was okay and if she wanted to go to the shop to get an ice cream or something. The complainant said she thought the accused was bribing her. These allegations equate to particulars (b), (c), (d) and (i) in the Information. 19 Fealy asked the complainant if there was another time that she remembered clearly where she was when something happened. She gave an account of the first time the accused had penile/vaginal sexual intercourse with her.10 She said it happened on 11 July 2022 at Murray Bridge. Her mother had gone to the birthday party of friend’s daughter. The complainant and her brothers were to go next door to the accused’s mother’s place. Her baby sister was very young and went with her mother to the party. Her brothers went next door but the accused got her to stay back. In the kitchen of their house he leant her against the kitchen table and had penile/vaginal intercourse with her from behind. The complainant said the accused was not using condoms. When he finished, he told her to go and sit on the toilet, wait, and then join her brothers next door. 20 Fealy then took the complainant back to her allegation that the accused had taken photographs of what was happening. This was the occasion in Elliston, the one said to be the clearest recollection. The complainant said that the photos were still photos taken on a Samsung camera. 21 Fealy asked if there were any other occasions of the accused taking photographs.11 The complainant said that there was an occasion in Elliston when the accused was touching her sexually after the rest of the family had gone to bed. She said it was around 11:00pm. The accused took photographs of her genitals. He used the flash of the camera. She drew a map of the Elliston house and its location on the farm.12 Included in the location plan was the area of trees where she said the first photographs were taken. 22 Returning to the photos being taken in the house, the complainant said that they were in the lounge. The accused told her to smile and spread her legs. Fealy asked the complainant if she had ever seen any photographs that had been taken. She said that she had seen one when she looked at the camera to see if he had 10 MFI P2A pp 13-16. 11 MFI P2A pp 17-22. 12 Exhibit P3. -- 6 of 48 -- [2025] SADC 134 5 deleted it. She found one photograph of her vagina which had not been put in the secure folder ‘where he puts everything’.13 23 This account refers to allegations of particulars (a), (b) and (i) in the Information. 24 The complainant said that there was another incident that she could clearly remember.14 It occurred at Ellison a few days before her younger brother’s birthday that year. It happened around midnight. The accused told the complainant to come outside to retrieve from his utility, a remote control car he had brought for the boy’s birthday. The complainant said she did not want to go outside because it was cold, but the accused made her go. Once outside the accused got her to retrieve the toy car from the tray of the utility, and then to sit on the tray where he kissed her and touched her breasts. He then put her in the rear driver’s side seat of the car where he had penile/vaginal sexual intercourse with her. As they were walking back inside the accused smacked her on the bottom and asked her if she was menstruating. She was wearing a pad and said ‘yes’. He did not say anything more. These allegations refer to particulars (a), (d) and (f) in the Information. 25 Fealy asked the complainant if she had ever sustained any injuries from the intercourse that the accused was having with her. She said she had not had any injury to her vagina but had suffered injuries when he had anal intercourse with her. She was then questioned about that. 26 The complainant described what she said was the first time the accused had anal intercourse with her.15 She said the accused had taken her to the area of the trees. There he stopped the utility. He came around to the passenger side where he took off her pants. He bent her forward over the seat, her legs on the ground. She said she tried to stop him inserting his penis in her anus by clenching her cheeks, but he got it in anyway. She was crying. When he finished, he pulled her pants up. When she sat in the car, she ‘felt there was some stuff there’.16 She went to the toilet when she got home and noticed bleeding. She was slowly bleeding for two days. This incident refers to particular (e) in the Information. 27 The complainant said that the accused did that to her six or seven times, but she did not bleed every time. These other times also occurred in the area of the trees, except one occasion when it happened near ‘the balcony’. Other evidence would suggest that the complainant described a ‘balcony’ as a veranda at the farmhouse which was some distance above the ground. The house was built on something of a slope.17 13 MFI P2A p 20. 14 MFI P2A pp 22-25. 15 MFI P2A pp 25-28. 16 MFI P2A p 28. 17 Exhibit P5, photos 70-72. -- 7 of 48 -- [2025] SADC 134 6 28 The complainant said that the first person she ever told about the abuse was a school friend, SC. She told SC when they lived in Murray Bridge.18 She told her at school. She said she told SC that the accused had been fingering her, playing with her and penetrating her. SC started crying. 29 The complainant took part in her second interview with Fealy on 28 February 2025. She gave further accounts of the accused kissing her.19 She said if she resisted kissing him goodnight, he would hold her down until she did. If she tried to just hug him, he would either grab her hand and pull her back or if she had walked off, he would call out for his kiss. He would do that every night when he was at home. 30 The complainant gave more details about the incident she described in the first interview about the accused applying the acne treatment to her back and masturbating.20 She described how he would try to get her hand down to his penis. She said there was another occasion in the trees at Ellison where the accused was masturbating but she said she could not remember every single occasion that he did that.21 31 While at Elliston the accused worked on farms away from their home. He might go away for two weeks, then come back for a week or weekend. While home he might do ‘small things’ like applying the acne treatment or touching her breasts about three times a week. Sometimes he would have sex with her. That would only happen about two or three times a month. There would be a mixture of vaginal and anal sex. After she began menstruating, the anal sex became more common. Sex only happened two or three times while they were at Murray Bridge. Those times were all before she started menstruating.22 She started menstruating in November 2022.23 32 Fealy asked the complainant if the accused discussed menstruating with her. She said that the accused told her to tell him when she got her period so he knew she was not pregnant. He told her that if she did get pregnant ‘he had people who would take care of it’. She did not know what he meant.24 Later in the interview, Fealy returned to the topic of the menstruation. The complainant said that the accused did discuss that with her but ‘it wasn’t one of his main concerns’. She gave an account of an incident ‘towards the end’ when he became worried that he had got her pregnant, when she did not get her period for a week. He told her to message him at work when it came, but she failed to do so. After a family dinner at the Wudinna pub, when the rest of the family had gone to the car, the accused 18 MFI P2A pp 29-30. 19 MFI P2A pp 4-6. 20 MFI P2A pp 4-6. 21 MFI P2A p 6. 22 MFI P2A p 13. 23 MFI P2A p 8. 24 MFI P2A p 8. -- 8 of 48 -- [2025] SADC 134 7 asked her if she had her period. She said ‘yes’, whereupon he got angry and told her she was supposed to tell him.25 33 Fealy asked some further questions about the complainant’s account in her first interview about the first time that the accused had touched her. It was the occasion said to have happened in his bed.26 She described the accused’s hand movements on her vagina. She said that he did not put her fingers inside her vagina. 34 Fealy revisited the complainant’s account of the first time that the accused had penile/vaginal sexual intercourse with her.27 That was said to have been on 11 July 2022 when her mother went to the birthday party. The complainant identified the child whose birthday it was and the name of the child’s mother. She was unsure whether it was the child’s third or fourth birthday. 35 Fealy asked the complainant whether she ever spoke to the accused about what he was doing. She said she was too scared to. The accused was apt to get angry quite easily. He would ‘throw stuff and break things’. He told her that if she told anyone he would go to gaol and he asked if she wanted him to go to gaol. He told her not to tell her mother. He did not buy her presents, apart from birthdays, but he would take her places where he did not take her brothers. She gave the Court examples, including rock climbing and cave climbing.28 36 Fealy asked the complainant about the photographs the accused took.29 She could not remember whether he had done that more than twice. She gave more details about the occasions of photographs being taken when they went to check the water tanks and when she was in the loungeroom. 37 With leave, the complainant was examined and cross-examined in Court. 38 Mr Dudzinski asked the complainant about her account of the accused first having penile/vaginal sexual intercourse with her at Murray Bridge. She said that she could not remember whether his penis was erect or flaccid. She said he did ejaculate.30 39 Mr Dudzinski asked her about her recollection of the clearest event, the one when they checked the water tanks at Elliston. The complainant did not think that the accused ejaculated when he had penile/vaginal sexual intercourse with her.31 40 In relation to the incident where the complainant retrieved the remote control car from the accused’s utility, the complainant said the accused did not ejaculate.32 25 MFI P2A p 14. 26 MFI P2A pp 8-10. 27 MFI P2A pp 10-11. 28 MFI P2A pp 11-12. 29 MFI P2A pp 12-13. 30 T25. 31 T25. 32 T27-28. -- 9 of 48 -- [2025] SADC 134 8 41 The complainant did not think that the accused ejaculated when he first had penile/anal intercourse with her.33 42 In relation to the last occasion, the allegation of the accused masturbating, when applying the acne treatment in the bathroom, the complainant said that the accused’s penis was erect as he was putting it back into his track pants.34 43 The complainant said that she made her first disclosure to her school friend, SC, because she trusted her not to tell anyone.35 The complainant said the accused’s abuse of her made her feel like she ‘wasn’t worth anything’. 44 The complainant identified in various exhibited photographs where events had taken place.36 45 During cross-examination the complainant said that she was happy when she and her siblings first moved to Murray Bridge. She got along with everyone, including with the accused, his mother, his sister and his sister’s son. They would all have dinner together most nights.37 46 The complainant agreed that within the family her older brother was different from her. He would at times become angry and disobedient.38 47 The complainant agreed that at Murray Bridge the accused would work long hours, and at Elliston he would be absent from home while working away on other farms.39 48 While the complainant said that she would ‘not usually ‘watch TV in the accused’s bedroom’, that did happen sometimes.40 49 The complainant said that the accused started touching her when she was aged 9 or 10 and in Year 3 at school.41 50 The complainant was asked about what she had said in her first interview about the first time something happened to her. This is the exchange between Fealy and the complainant on that topic: 42 Q. … Do you remember the first time that something happened? 33 T28. 34 T28. 35 T29. 36 Exhibits P5, P6 and P7. 37 T40-41. 38 T42. 39 T48. 40 T50-51. 41 T55. 42 MFI P2A pp 6-7. -- 10 of 48 -- [2025] SADC 134 9 A. Mm, no, but I’m pretty sure it was in his bed, um, in the morning around 10 o’clock because he would always get me to go into his room and lay with him. 51 Her attention was focussed on the suggested uncertainty in the words ‘pretty sure’. The complainant said that she was not sure about whether that was the first time that the accused had touched her, or whether there was ‘another time before’.43 52 The complainant was further questioned on that topic saying it ‘would have been on a weekend’. She said that because she would go to his bed every weekend.44 53 The complainant agreed that there were a few times when she would sleep in the bed with the accused and her mother. That happened in both Murray Bridge and Elliston. There were times when the accused touched her while she was in bed with them both. Her mother would be asleep. The accused would come and get her. She would not on those occasions be sleeping between the two adults. She would be on the accused’s side.45 54 The complainant was asked how she came to be in the accused’s bed on that first occasion. She said that her mother came and got her. Her mother told her that the accused had asked her to do that. When the complainant got into the bed with the accused, her mother went outside for a smoke. The TV screen was on but it was not showing anything. She was in the bed for five to 10 minutes. She then went to the lounge. She was too scared to tell her mother.46 55 The complainant agreed that she was not at first scared of the accused, but he started doing things to her after about five months.47 56 The complainant knew what the accused was doing was wrong but she became scared of him. He would yell at people. There would be arguments. He would break things. When pressed about anything she could remember the accused breaking, she said ‘his stuff’.48 She said he would throw his phone and his tools. Once he threw a rice cooker at her mother’s head. He would get angry with his own mother and sister. He would throw things over the fence, around the yard and in the shed. He would attack her mother and sometimes her brother.49 57 However, he would treat her very differently. He was nice to her.50 43 T56. 44 T57. 45 T58. 46 T61-62. 47 T63. 48 T68. 49 T69. 50 T69. -- 11 of 48 -- [2025] SADC 134 10 58 When pressed about why the complainant did not tell her mother what the accused was doing, given that the accused was often away working, she said: 51 … how do I tell my mum that I am being touched by the person that she loves most, and the father of her children? I don’t think you understand that. 59 Mrs Powell asked the complainant about her allegation of the first time that the accused had penile/vaginal sex with her, the occasion in Murray Bridge when her mother went to the birthday party. The complainant agreed that after the alleged intercourse she sat on the toilet and joined her brothers at the accused’s mother’s house. There she watched TV. When asked whether she was upset, she said she didn’t know how to feel. She didn’t know how to tell her mother. She didn’t think she could ring her mother because her mother did not know what was going on.52 60 The complainant was questioned about her allegation regarding the accused first having penile/anal intercourse with her near the trees at Elliston. She agreed that when the accused asked her to come with him to check the water tanks, she thought she might be sexually abused, but she felt she had no choice but to go. She thought the accused would be angry if she refused. She said: 53 … it was either me not go and him be angry for the rest of the day; or me go, have that stuff happen to me, him be fine, and the rest of my family be at peace. 61 The complainant said the accused had not used any lubricant and it hurt. It also bled. She did not tell anyone about the bleeding. She denied ever having a conversation with her mother about bleeding from her bottom. She denied ever having such a conversation with her mother after she had passed a large stool.54 62 The complainant said that there was one occasion when the accused had sexually abused her while they were checking the water tanks and they had to go to a neighbour’s property to rectify a problem with the tanks.55 63 The complainant was asked about her allegation that she had seen a photo of her vagina on the accused’s phone. She said she was 12 at the time. It was at Murray Bridge. The complainant said she knew the accused’s password. She wanted to see if he had deleted photos that he had taken of her. Other family members were home when she checked the phone. She found the photo on the camera roll.56 64 When asking about the last sexual occasion, the complainant said that her mother was outside having a smoke whilst the complainant and the accused were 51 T72. 52 T73-75. 53 T76-77. 54 T77-78. 55 T78-80. 56 T80-81. -- 12 of 48 -- [2025] SADC 134 11 in the bathroom applying the acne treatment. Her mother was aware that the accused would apply the treatment.57 65 The complainant was questioned about her allegation that the accused had told her that if she got pregnant, he knew people who would take care of it. She had said in her interview that she did not know what he meant. She explained that while she knew that the accused was referring to the termination of a pregnancy, she did not understand how they would do it.58 66 The complainant was asked about a conversation she had with her mother in late November 2023. Bearing in mind that the complainant’s first prescribed interview with the police was held on 3 December 2023, it is likely that this conversation led to the report being made to the police, but I will not treat this conversation as evidence of complaint. Neither party suggests that I should. There is no doubt that the complainant’s evidence of confiding in her school friend years earlier is the evidence of complaint in this case. 67 The complainant said that her mother asked her if anything was happening between her and the accused. Initially, she said ‘no’, but the next day she said something had happened. She ‘told her what was going on’.59 The complainant denied that her mother asked her questions about specific sorts of sexual abuse. 68 The complainant agreed that when the family was living at Murray Bridge her mother told her that she herself had been sexually abused by her own grandfather when she was aged between 3 and 5. He would touch her on the vagina. The complainant agreed that her mother’s disclosure made her aware of how wrong and harmful the accused’s actions were. She explained why she made no disclosure to her mother. She said: 60 … because when she [her mother] told her dad, he couldn’t do anything about it. And nothing ever came of it, so I felt that even if I did tell anyone, nothing would happen. Obviously, she didn’t want me to think that, but I still thought that. 69 In re-examination the complainant was asked questions about her allegations in cross-examination that the accused would sometimes touch her in bed when her mother was also there but asleep. The complainant said that on those occasions the accused would touch her breasts and vagina. It happened more than once, but she could not remember how many times. That happened at Murray Bridge but not at Elliston.61 Evidence of the complainant’s mother, RH 70 RH gave biographical details. She has four children. Her eldest, C, is 17. He is a year older than the complainant. Her younger son, B, is four years younger 57 T84-85. 58 T86-87. 59 T89. 60 T93. 61 T94-95. -- 13 of 48 -- [2025] SADC 134 12 than the complainant. Her youngest child is the 4 year old daughter, E. The accused is the biological father to E. 71 RH said that her relationship with the accused began in August 2017 and ended in December 2023. 72 RH said that when her children moved in with her and the accused, the accused spent more time with her older son than with the other children, but by about ‘a year and a half in’, he was only spending time with the complainant. They would run errands together. They would go shooting, diving and fishing together. 73 RH confirmed that on 11 July 2022, she and her younger daughter went to another child’s birthday party, leaving the other children home with the accused. 74 RH said that the family moved from Murray Bridge to Elliston on 23 December 2022. Her eldest child, C, stayed in Murray Bridge with the accused’s mother. 75 At Elliston, as had been the case at Murray Bridge, the accused would spend time with the complainant exclusively. He would ask her to get the complainant to go with him. If the complainant was reluctant to go, RH would tell her ‘just go because you know what he’ll be like if you don’t go’. By that she meant that ‘he’d get in a mood’.62 RH described what she meant. She said the accused would exclude himself. He would walk straight past her not saying anything. Sometimes, though not all the time, he would get angry and shout. 76 RH said that the accused would take only the complainant snorkelling and rock climbing.63 77 When the family was in Elliston the complainant was in the accused’s lap ‘all the time’. That was never the case with the other children.64 78 RH said that at Murray Bridge the accused would ask the complainant to join them in bed at night. RH said that she would wake up in the morning and find the complainant there.65 79 RH said that at Elliston the accused would have to go from the house and to check water tanks a couple of times a month. He would take the complainant with him. Normally the check would take five or 10 minutes, but she remembered an occasion in July or August 2023, when they were away for 45 minutes to an hour. She was preparing dinner and rang the accused to find out how long he was going to be. He told her that he was at a neighbour’s place.66 62 T101. 63 T102. 64 T103. 65 T103-104. 66 T104-105. -- 14 of 48 -- [2025] SADC 134 13 80 RH said that when the complainant started to develop breasts at age 11 or 12, the accused would comment on the fact. He would say ‘look at her boobs, they are getting bigger’. She said that on a few occasions she saw the accused touch the complainant’s breast. ‘He’d just grab the side and make a joke or make a comment’.67 RH said that she proposed buying the complainant her first bra, but the accused ended up buying it with the complainant.68 81 RH said that on about 16 November 2023, the accused had gone to Moomba driving trucks. On 29 November 2023, she received a phone call from her sister-in-law, CH. As a result of that call she spoke to the complainant that day and also on the following day. As a result of those conversations, she reported the current matter to the police.69 82 In cross-examination, RH said that her family was happy for about 18 months after they got together. After that, her eldest child began exhibiting behavioural problems. The complainant remained a quieter and obedient child. 83 RH said that in Murray Bridge the complainant would sometimes come into the adult’s bed. Sometimes she would be aware of the complainant coming into the bed. At other times she would wake up to find her in the bed.70 RH agreed that the complainant would be next to her in the bed.71 84 RH said that after a period of time the complainant started sitting on the accused’s lap. She said that did not bother her at first, but as the complainant got older, it did. She came to think it was not right, but she felt she did not have any choice in the matter.72 She did not know why she did not say anything to the complainant.73 She was unable to explain why she did not say anything to the complainant. 85 RH said that when the accused started touching the complainant’s breasts, she told him to leave her alone. She could not remember whether she told him that in front of her daughter. She said that the accused continued doing it anyhow.74 86 RH agreed that there was an occasion at the Elliston Caravan Park when her step-mother, MH, told her that she had seen the accused near the men’s shower block with the complainant. RH agreed that she had told MH that she was not worried about that. She was not worried because she had been told that the women’s showers were fully occupied.75 67 T105. 68 T106. 69 T107. 70 T114-115. 71 T115. 72 T115. 73 T116. 74 T118-119. 75 T119-120. -- 15 of 48 -- [2025] SADC 134 14 87 RH said that there was an occasion at Murray Bridge when she had a conversation with the complainant about the complainant’s bottom bleeding. She agreed that she told her that it might have been caused by passing a large stool.76 88 In re-examination, RH was asked what she meant when she said in cross-examination that she did not feel as if she had any choice about the complainant sitting on the accused’s lap. She said that she had become worried about that as her daughter grew older, but she did not say anything about it. RH said that she felt that if she spoke up about it, ‘I would get yelled at or … cause drama, and I didn’t like that’.77 Evidence of the complainant’s aunt, CH 89 CH is the wife of RH’s brother, WH. The couple visited the complainant’s family in Elliston on 1 October 2023. On the second night of the visit, CH was out on a veranda with the accused, the complainant and the complainant’s younger sister. The complainant was sitting on the accused’s lap, leaning her back on his chest. The accused had his arms around her. Both were looking at the accused’s phone. CH asked the complainant to come inside.78 90 That night the families had pizza for dinner. The pizza was purchased from a roadhouse in Elliston where the complainant worked. During the meal the accused spoke nastily to the complainant asking how it was that there was mint on his pizza. He kept on swearing.79 91 In cross-examination, CH agreed that the accused was not home on the first night of the visit. He was away at work. CH agreed that after her visit she spoke to several family members about the accused. She spoke to her husband, WH, her father-in-law, IH, and his wife, MH. She said that her observations of the accused during the visit concerned her. She became more concerned as she spoke to other family members. As a result, she rang RH about three weeks after the visit. She said she was waiting for the accused to be away from the house so she could speak to RH. 92 Mrs Powell put to CH that she would not have left the complainant in a dangerous situation for so long. CH said that she had to find the right time to talk to RH because RH ‘believed everything that Noel had said to her, was quite under his spell sort of thing’.80 93 In re-examination, CH said that she called the complainant inside when she saw her sitting on the accused’s lap because she thought it was inappropriate.81 76 T120-121. 77 T124-125. 78 T128-129. 79 T129. 80 T135. 81 T135-136. -- 16 of 48 -- [2025] SADC 134 15 Evidence of the complainant’s uncle, WH 94 WH spoke of observations he made of the accused and the complainant during the visit that he and his wife made in early October 2023. 95 He said that on the second of the two nights they were there he went outside to urinate. It was about 2:00am. On the way out he went through the kitchen. There he saw the accused and the complainant leaning on the kitchen bench looking at a mobile phone. They were in their day clothes. 96 Earlier in the night when people were gathered around a table on the veranda, WH noticed the accused and the complainant sitting very close, brushing up against each other.82 97 In cross-examination, it was put to WH that he had not recollected seeing the accused and the complainant sitting close to each other on the veranda until his wife mentioned it to him later. At first, WH did not accept that proposition, but when reminded that he had said that in a statement to police, he agreed.83 98 WH was questioned about a conversation he had with his stepfather, IH about the accused. It was put to him that before the visit to Elliston, IH had said to him, ‘keep an eye on things at the house’ with the accused and the complainant. WH agreed that IH had said that, but he had not said it before the visit to Elliston. He had said it a few days after the visit, after WH had got home from the visit.84 99 WH had earlier volunteered that when he got home from the visit, IH had called him and asked him if he believed that the accused was grooming the complainant.85 100 I pause to note that this and other hearsay evidence was elicited by defence counsel for the permissible purpose of demonstrating the defence hypothesis that family members formed amongst themselves erroneous suspicions about the accused, which they communicated to RH. As a consequence, RH herself became suspicious of the accused and communicated that to the complainant. The complainant’s account is in that way infected by the suspicions of others. 101 I direct myself that insofar as communications of this sort are expressions of opinion, they are inadmissible as evidence inculpating the accused. They are only admissible for the purpose identified above. Visual observations on the other hand may have the capacity to be inculpatory. These topics will be revised in due course. 82 T139. 83 T141-143. 84 T144. 85 T141. -- 17 of 48 -- [2025] SADC 134 16 Evidence of Nicola Sward 102 Nicola Sward knows the accused’s family. She met the accused’s step-father in 2013. She met RH in 2018 to 2019. She would visit them in Murray Bridge. She was asked about her observations of interactions between people in that household. 103 She said that the accused did not appear to spend any time with the complainant’s younger brother. He was ‘just out of the picture most of the time, doing his own thing’.86 104 The accused’s relationship with the complainant’s older brother, C, appeared to be toxic. C would seek the accused’s approval, but the accused ‘very much pushed him away’.87 105 The accused’s relationship with the complainant appeared to be very different. She was ‘usually sitting on his lap’. That was ‘regularly initiated’ by the accused. He would: 88 often tap his knee or he would pull her over when she would walk past, to sit on his lap … she would sit on his lap for long periods, whereas the boys would be sent inside. 106 In cross-examination, Ms Sward said that her observations were all at Murray Bridge. There she would visit the family at least once a week. Her husband was friends with the accused and she was friends with his mother.89 Evidence of the complainant’s step-grandmother, MH 107 MH gave evidence of her observations of relations within the complainant’s family, more particularly between the accused and the children. She was speaking of the period in 2019 when the family resided in Murray Bridge. MH said she visited the family there twice. She said the complainant was the accused’s favourite. Her brother, C, ‘was just nothing’. The complainant ‘had all the attention of the accused’. 108 On one occasion MH saw a Facebook photo of the accused and the complainant. They were lying down with the accused hugging the complainant from behind. It looked like they were asleep.90 MH said that she had tried to locate the picture but was unsuccessful. 109 MH gave evidence of observations she made of the two on an occasion at the Elliston Caravan Park. She said she saw the accused take the complainant to the men’s shower block. The accused kept going in and out of the block while the 86 T146. 87 T147. 88 T147. 89 T148. 90 T150-151. -- 18 of 48 -- [2025] SADC 134 17 complainant was inside.91 The complainant eventually came out with a towel wrapped around her wet hair. 110 In cross-examination, MH said that the Facebook photo showing the accused and the complainant lying down was posted by RH. 111 MH agreed that she had not herself seen the accused and the complainant go into the men’s showers at the Elliston Caravan Park. She had been told that by CH. She agreed that she had told RH what she had seen but RH was not concerned. Evidence of Brevet Sergeant Jasmine Williams 112 Brevet Sergeant Williams said that she had sought a statement from SC, the school friend of the complainant to whom she said a complaint was made. From what SC’s mother told her, she understood that SC would not be able to provide a statement. Evidence of the complainant’s grandfather, IH 113 IH said he visited the complainant’s family at both Murray Bridge and Elliston. At both places he saw the complainant sitting on the accused’s lap. He did not see any of the other children do that. 114 In cross-examination, he agreed that when he saw that, other people were around. 115 IH said that after he met the accused, he went out fishing with him once to try and get to know him. He agreed that he came not to like the accused. 116 IH agreed that he had told his son, WH, to keep an eye on things at the complainant’s place. It is not clear whether he said that before or after the visit by WH and CH to the complainant’s place.92 Evidence of the Psychologist, Mr Srdjan Vajdic 117 Mr Vajdic described several behaviours which are engaged in by sexual abusers. 118 Grooming by offenders enables abuse to happen. It dampens victims’ ability to disclose offending or to seek help. Grooming enables offenders to isolate victims from other people and to get close to them. Offenders may jokingly touch, for example, the breast of a child, so as to normalise touching. Evidence of the accused’s mother, Jayne Brown 119 Ms Brown gave evidence of biographical matters which are not contested. 91 T151-152. 92 T171. -- 19 of 48 -- [2025] SADC 134 18 120 She spoke of the relationships she observed within her son’s family. 121 She said that at first it appeared to be a good relationship between the accused and the complainant’s elder brother, but that deteriorated. C became rude to his mother and disobedient. He would throw a tantrum. The accused began disliking him. Notwithstanding that, she did not notice the accused spending more time, with the complainant than any of the other children. He spent ‘pretty much’ the same time with each of them.93 She never saw anything inappropriate between the two of them. 122 In cross-examination, Ms Brown said that the relationship between the accused and C deteriorated within 12 months of the family coming together. She described the complainant’s younger brother as ‘really quite obnoxious’.94 123 Ms Brown said that she was at the Elliston Caravan Park at the same time as other family members. Ms Brown gave evidence that MH said that it was inappropriate for the accused to take the complainant to the shower blocks. She said RH was very angry about MH’s comments. She did not think that the accused’s behaviour was inappropriate. Ms Brown thought that RH was correct. 124 Agreed Facts were tendered.95 Mr Dudzinski closed the prosecution case. Evidence of the accused 125 I treat the evidence of the accused in the same way that I treat that of any other witness. 126 The accused is 33. He met RH when he was 25 or 26. She moved in with him in 2017. Her children joined them around Christmas that year. The accused started a boiler maker apprenticeship in October 2018. He was busy with work and study. He found his commitments physically and mentally draining. He developed bulged discs and arthritis. Most evening meals at Murray Bridge included his mother, his sister and his sister’s child. 127 The accused said his relations with the complainant’s older brother, C, started well - ‘he was a good kid’ but ‘he turned’. He became bullying and disobedient. 128 The complainant was always a good girl. The accused said she ‘started to change towards Elliston’,96 but his relationship with her did not change.97 He listed the things he taught her. He taught her to read, to write, to ride pushbikes and motorbikes – ‘all the stuff that a father would teach their child’.98 93 T185. 94 T191. 95 Exhibit P8. 96 T205. 97 T206. 98 T205. -- 20 of 48 -- [2025] SADC 134 19 129 The complainant’s younger brother was ‘a mother’s boy’ who ‘wasn’t really too interested in anything but the TV’.99 130 When asked if he ever got angry, the accused said ‘I didn’t have the energy to’.100 There were only two things he ever broke during his relationship with RH. They both happened on the same day. When RH threatened to take their youngest child with her, he broke a tablet and a rice cooker. He denied throwing the rice cooker at RH’s head. He pushed it off a bench. He did not think the children were present.101 131 He never threw his tools around. 132 When asked if the complainant ever sat on his lap, he replied ‘she sat on my knee’. He demonstrated the difference between lap and knee. He sometimes invited her to do so.102 133 The accused described how the complainant might come to sit on his knee. He would come home from work and sit in his normal seat. Each of the three children would come and give him a hug. After the hug the boys went off to do their own things but the complainant ‘would come to me and she’d pretty much sit down on my knee’. 134 The accused described how he and the complainant would scroll through his mobile phone while she was sitting on his knee.103 Sometimes he would watch TV with the complainant in his bedroom but he would also have the boys in there as well.104 135 The accused was asked about bedtime kisses. He described how each of the three children would come up to his bedroom. He said the two boys would come and hug him and say goodnight. The complainant would hug and kiss him and say goodnight. They would all say ‘I love you’ and he would say the same in return. 136 The accused said there were a couple of times when the complainant would be in bed with him and RH. He said he would wake up during the night to find her at the door. She might say she was scared. He would invite her into bed between the two adults. 137 The accused explained the circumstances of the birthday party RH attended on 11 July 2022. That is the occasion on which the complainant said that the accused first had penile/ vaginal intercourse with her in kitchen while her mother was away. The accused denied that allegation. He said that he was home from work briefly that day. It was his understanding that all three children would spend the 99 T206. 100 T206. 101 T207. 102 T208. 103 T209. 104 T210. -- 21 of 48 -- [2025] SADC 134 20 day at his mother’s place. The youngest child went with RH to the party. While he was at home, the two boys went next door to his mothers’ place, but the complainant stayed back for just two or three minutes. She was helping him look for his keys. 138 The accused denied he touched the complainant’s breasts. He said there was an occasion when, at Murray Bridge, RH said ‘look she’s developing boobs’. He responded by saying, ‘wow’. He demonstrated how he then touched the side of the complainant’s shirt, in the area of her chest. He placed his right hand, with a flat palm against his own chest.105 He later expanded on that evidence by saying that he pulled at the complainant’s shirt so as to better see her breasts.106 139 The accused said he had taken the complainant on excursions or other activities that did not include the other children. He said that, with two others, he took her to caves at Nildottie. He said he did not take the older boy because he was naughty, and the younger one was not interested.107 When asked if there were any other activities, the accused said he took the complainant to the Flinders Medical Centre to have her tonsils out. He added ‘I did all kinds of things with SAM’.108 140 The accused agreed that he had taken the complainant to the men’s showers at the Elliston Caravan Park, but that was because the women’s block was full. He said that he walked away from the block before the complainant had finished showering. RH told him that he had better leave because MH was ‘flipping her shit’.109 141 The accused agreed that he had seen the Facebook post MH had noted. He said the photo showed him sitting on his bed, holding a book. He was teaching the complainant to read. She was sitting beside him. RH had taken the photo.110 142 The accused said that at Elliston he had to occasionally check the water tanks on the property, some five kilometres from their house. Sometimes he took the complainant’s younger brother, but he also sometimes took her on her own. If the tanks needed no attention the check, might take only 10 or 15 minutes. If there was a problem, they might be away for one and half to two hours. He remembered an occasion when the complainant was alone with him and there was a problem. He had to drive to a neighbour to rectify the problem.111 105 T216. 106 T232-233. 107 T217. 108 T217. 109 T218-219. 110 T222. 111 T225. -- 22 of 48 -- [2025] SADC 134 21 143 The accused denied ever having penile/anal intercourse with the complainant. He said that RH had told him that the complainant had reported to her having bleeding from her bottom.112 144 The accused explained what had happened on the night he took the complainant outside the house to retrieve from his ute, a remote-control toy which he had bought for her younger brother’s birthday. He said that he had to get the complainant to retrieve it from the back of his ute because ‘I’m not skinny’ and he had problems with his back.113 145 In cross-examination, the accused said that although his relationship with the complainant’s older brother deteriorated over time, he spent about the same amount of time with each of the three older children.114 146 The accused said he did not often spend time late at night with the complainant. It happened only five or six times during the whole time of his relationship with RH. Those times were at Elliston. They would stay up watching TV.115 Later he said they might stay up for an hour.116 147 The accused agreed that on the occasion of the visit from WH and CH to Elliston, he had been up with the complainant at 2:00am. WH had noticed the two of them in the kitchen as he was making his way outside to urinate. The accused said he was watching videos on his phone with her. When asked why, he said ‘cause we were’. When asked if he had ever done that with her older brother, he said ‘yes’ but then corrected himself by saying it was not 2:00am. He further corrected himself by saying that he had been playing X Box with C, at 2:00am some days.117 148 The accused said that in Murray Bridge he would mainly take C on errands as opposed to the complainant. He said C use to sit on his knee.118 The complainant would not sit on his knee more than C did.119 149 The accused explained why on the occasion RH left home at Murray Bridge to go to the birthday party, he asked the complainant to help him find his keys while her brothers went next door to his mother’s. The accused said he had a bad habit of losing his keys. The complainant tended to know where things were. He did not ask the boys to stay back that day because ‘they were playing up’.120 112 T225-226. 113 T232. 114 T236. 115 T236. 116 T244. 117 T237. 118 T239. 119 T243. 120 T253. -- 23 of 48 -- [2025] SADC 134 22 150 The accused explained he would apply the acne treatment onto the complainant with wipes every couple of nights. Her mother did not do it because she was too busy.121 Addresses Mr Dudzinski for the prosecution 151 Mr Dudzinski said he would address under four headings as follows: 1. Complainant’s credit; 2. Complainant’s reliability; 3. Particular incidents; and 4. Reasons to reject the accused’s evidence. 152 Mr Dudzinski submitted that the complainant gave her evidence without exaggeration or embellishment. A particularly telling example of her credibility was her explanation why she did not tell her mother about what the accused was doing. She acknowledged that there were opportunities for her to do so when the accused was away from the home. She said she was scared of the accused, but she added ‘how do I tell my mum that I am being touched by the person she loves most, and the father of her children …’. She then said she did not want to hurt anyone.122 153 Mr Dudzinski submitted that there were no inconsistencies in the complainant’s evidence. 154 Mr Dudzinski submitted that the complainant’s credit is enhanced by her complaint to her school friend at Murray Bridge. That complaint was made to someone she trusted not to tell anyone. The complaint was made around November 2022. She told SC that the accused had been ‘fingering’ her, ‘playing’ with her and ‘he stuck it in me’. The accused first had penile/vaginal intercourse with her on 11 July 2022, the day that her mother went to the birthday party. 155 Turning to the complainant’s reliability, Mr Duzdinski submitted that her account of a number of matters has been supported by other evidence. Her account of the accused spending less time with her brothers than her is supported by other witnesses. Her identification of the occasion when her mother went to the birthday party is supported by others. So too her account of going with the accused to check the water tanks at Elliston, the accused having a secure folder on his phone and the accused getting her to retrieve at night the remote-control toy from his ute. There is support for the accused’s frequent treatment of her acne. 121 T265. 122 T272-273. -- 24 of 48 -- [2025] SADC 134 23 156 Mr Dudzinski submitted that there was a credible account of escalating offending, starting with the accused touching the complainant in bed and culminating in vaginal and anal intercourse. 157 Mr Dudzinski acknowledged that there is an inconsistency between the complainant and her mother about where the complainant would be located if she would come to the adults’ bed. The complainant said she would be on the accused’s side. Her mother said she would be in the middle. Mr Dudzinski submitted that the complainant’s location in the bed might not be particularly memorable for her mother but it would be for her. Further, he submitted that the complainant might have been in both positions at different times. 158 Mr Dudzinski submitted that the complainant’s account of the first penile/vaginal intercourse is compelling. The complainant was not sure if the accused’s penis was erect. That is something that she might be unlikely to remember, but she was clear that the accused ejaculated. He told her to sit on the toilet before joining her brothers next door. 159 Mr Dudzinski submitted that there were compelling aspects of the complainant’s evidence of the accused taking photographs of her. On her account of the clearest incident the complainant said the accused took her to the clearing in the trees. There he digitally penetrated her then had penile/vaginal intercourse with her. He took photos. The complainant heard the clicking of the camera. Then her mother rang the accused to see why they were taking so long. RH recalls ringing the accused on such an occasion in July or August 2023. 160 Mr Dudzinski said that the complainant’s account of the photo being taken in the lounge was credible. She described how this took place late at night when everyone had gone to bed. The accused told her to spread her legs and smile. 161 Mr Dudzinski submitted that the complainant’s account of being sexually abused at night, first on the tray of the ute then in the back driver’s seat, was compelling. The accused remembers the occasion but provides an innocent explanation to them being there. 162 Mr Dudzinski submitted that the complainant’s account of anal penetration and bleeding was detailed. So too, he submitted, was the complainant’s account of the last time something happened, the incident in the bathroom when the accused was applying the acne medication and was masturbating behind her. 163 Mr Dudzinski submitted that the abuse was against a background of grooming by the accused. He was prioritising the complainant in activities. Sexual touching was normalised by her sitting on his lap and by the touching of her breasts. These are typical grooming behaviours by sexual offenders. That was the evidence of the Psychologist, Mr Vajdic. 164 Mr Dudzinski submitted that the complainant’s account of the accused telling her to let him know when she had her periods was telling. He told her not to tell -- 25 of 48 -- [2025] SADC 134 24 anyone or he would go to gaol. He asked her if she wanted him to go to gaol. The complainant said that she was scared of the accused. This all explains why she did not tell anyone, or at least not tell anyone in authority. 165 Mr Dudzinski submitted that I should reject the accused’s evidence. He submitted four reasons to do that. They were the accused’s tendency to gratuitously add detail, to change his story, his unwillingness to make appropriate concessions and his evasiveness. 166 In relation to gratuitous details, Mr Dudzinski cited two occasions when the accused acknowledged that he had an activity involving the complainant but went on to add others were also present. He said that her brothers were there when he watched TV with the complainant and her older brother and ‘the whole family’ would go shooting as well as the complainant. 167 An example of the accused changing evidence relates to the complainant coming into the adult bed. 168 In examination-in-chief, he said it happened a couple of times but in cross- examination it happened more than twice. 169 Mr Dudzinski submitted that while the accused made at one point the concession that he had more activities with the complainant than her brothers, he then claimed he spent equal time with them all. He claimed that at Murray Bridge he spent more time with the complainant’s older brother, C. 170 Mr Dudzinski gave an example of what he described as the accused’s evasiveness. When asked in cross-examination whether the accused would watch videos with C, as he had with the complainant at 2:00am, the accused at first answered ‘yes’, but then added, ‘not at 2:00am’. He then deflected the question to ask whether it happened when he was watching movies or videos on his phone. 171 Mr Dudzinski submitted that the accused was evasive about whether the complainant would sit on his knee more than C. His first answer was ‘have you got a time?’123 Ultimately, all he would do was say that the complainant ‘sometimes’ sat on his lap more than C.124 Mr Dudzinski submitted that while the accused cited a number of physical ailments he suffered from while at Murray Bridge – bulged discs, arthritis, steroid and cortisone injections,125 he agreed he could still have sexual relations with RH.126 172 Mr Dudzinski submitted that I should find the accused guilty. 123 T242-243. 124 T243. 125 T201. 126 T235. -- 26 of 48 -- [2025] SADC 134 25 Mrs Powell SC for the accused 173 Mrs Powell submitted that the presumption of her client’s innocence has not been overcome. 174 She submitted that she would address several categories of the prosecution case. She would suggest an assessment of the complainant’s demeanour and its inconsistency with other evidence. She would analyse the evidence of the family members. She would address the psychologist’s evidence, the evidence of complainant, the accused’s forensic disadvantage and the accused’s evidence. 175 Mrs Powell submitted that the complainant’s evidence is unsupported by direct or forensic evidence. Her evidence is not bolstered by a complaint witness. 176 Turning to the complainant’s demeanour, Mrs Powell noted there was a contrast between the complainant’s presentation as a 14-year-old in her first interview, a 15-year-old in her second interview and a 16-year-old when she gave evidence in Court. 177 Mrs Powell submitted that in some cases it can be dangerous to convict on the uncorroborated evidence of a child witness. In this case there are reasons to doubt the complainant’s reliability. Her account may have been contaminated by other evidence. At the very least, her evidence should be scrutinised with very great care. 178 In the complainant’s case, her demeanour varied from pleasant to churlish. There was an absence of emotion when dealing with emotional subject matter. 179 Mrs Powell submitted that there are inconsistencies between the complainant’s account and the evidence of others. The complainant said at times the accused would become angry. He would throw his tools, get angry at RH and throw things over the fence at Murray Bridge. By contrast, RH said the accused would show anger by ‘getting in a mood’, ignoring people and not being very nice. He would exclude himself and walk past people. Mrs Powell submitted that the complainant’s evidence on this topic was a gross exaggeration. 180 Mrs Powell submitted that the complainant’s evidence of the accused taking photographs of her is unsupported by the police examination of the accused’s phone. She submitted that the accused had no notice that his phone would be seized. 181 The complainant’s evidence of her being on the accused’s side of the adult bed is unsupported by RH, who said she would be in the middle. Mrs Powell submitted that the complainant has falsely tailored her evidence to explain how she might have been indecently touched by the accused without her mother noticing. -- 27 of 48 -- [2025] SADC 134 26 182 Mrs Powell submitted that the complainant’s emphatic evidence about not having a conversation with her mother regarding the bleeding bottom is contradicted by her mother. RH said that at Murray Bridge they did have such a conversation. She explained that the bleeding may have been caused by the passing of a large stool. 183 Mrs Powell asserted that there was a degree of defiance in the complainant’s denials of having had such a conversation with her mother. There is no medical evidence to support the allegation of anal intercourse. 184 Mrs Powell submitted that wherever there is evidence of the complainant which is capable of corroboration, there is none. There is none in respect of the accused’s anger, the bleeding of the complainant’s bottom and the photographs. 185 Mrs Powell addressed the evidence of the accused’s alleged preferential treatment of the complainant. She submitted that in the course of a four year family relationship, there are reasons why there might be some disparity. The ages and genders of the children may be relevant. C did not live with the family in Elliston. ‘C was not probably going to be anyone’s favourite child based on his conduct’.127 186 The complainant’s younger brother, B, was a ‘mummy’s boy’128 and was only four when the accused joined the family. 187 By comparison, the complainant was a nice girl. She was not a child who caused problems like her brothers did. Against interest, the accused credibly conceded as much. 188 Mrs Powell submitted that the evidence of witnesses about the complainant sitting on the accused’s lap and the caravan park shower block incident have reasonable explanations. Pertinently, RH was unperturbed. 189 Mrs Powell focussed on the ‘lap sitting horror’ described by ‘…. twittering family members’.129 She submitted that it would be an age-appropriate activity to occur with a child from the ages of 10 to 14. In the complainant’s case, it might demonstrate a significant degree of comfort. Importantly, it happened publicly. The family members who gave evidence on the topic were not particularly close to RH. They did not spend a lot of time with the children. 190 In January 2023, after the shower block incident, MH decided it was appropriate to start talking to other family members about it. Notwithstanding that, it took nearly a year before anything came of it. Rather than urgency, the rationale for MH in raising the matter with RH is more likely ‘a desire to create drama and trouble making rather than a real genuine fear’.130 127 T295. 128 T296. 129 T298. 130 T299. -- 28 of 48 -- [2025] SADC 134 27 191 Mrs Powell submitted that the lap sitting did not demonstrate that the accused had an inclination to act on a sexual interest in the complainant. 192 Mrs Powell submitted that there is no basis for suggesting that the accused saying and doing anything about the complainant’s breasts is sexualised behaviour. This was done in RH’s presence. RH’s evidence of the accused grabbing the side of the complainant’s breast is close to what the accused himself described as happening. What actually happened might be easily misremembered by the accused, by the complainant or RH. 193 Mrs Powell submitted that Mr Sladjic’s evidence added no substance to what the Courts are familiar with in these types of matters. He had no knowledge of the family’s dynamics. 194 Mrs Powell addressed on the unlikelihood of the alleged events occurring. 195 It is unlikely that the accused turned from a perfect stranger to a sexual abuser of the complainant within six months. It is unlikely that the abuse occurred in front of extended family members. The accused’s mother, sister and nephew lived on the same property at Murray Bridge. They usually had the evening meals together. The accused was working and studying long hours. In the whole four years of the relationship, RH noticed nothing untoward. RH herself had been sexually abused. RH was home all the time. She had a good relationship with her daughter. 196 What contaminated the complainant’s mind and imparted to her the concept of sexual abuse was ‘the twittering masses’.131 The complainant did not spontaneously raise the allegations with her mother. RH asked her directly if she had been sexually abused. RH’s account to the complainant of her own sexual abuse may have informed the terms of the complainant’s statements. The complainant was in that way given ‘a sexual vocabulary’.132 197 Mrs Powell addressed the prosecutor’s criticisms of the accused’s evidence. 198 In respect of the criticism that the accused had gratuitously added extra detail, she submitted that caution should be exercised when the accused is literally fighting for his life. 199 In respect of the criticism of the accused changing his evidence about the time spent with each of the children, she submitted that the overall impression of the accused’s evidence was that there were dynamics within the family which innocuously determined the time he spent with each. 131 T303. 132 T304. -- 29 of 48 -- [2025] SADC 134 28 200 Mrs Powell submitted that I should take into account the accused’s limited education and his lifelong hard work in trades. The accused might be regarded as an unsophisticated witness. 201 Mrs Powell submitted that the principles in Liberato v R133 are directly engaged. It is not appropriate to reason that fact finding involves the preference of one account over another. Even if the accused’s account is rejected, that does not provide proof of guilt. The prosecution bears the onus of proving its case beyond reasonable doubt. 202 I accept the correctness of those submissions and I bear them in mind. 203 Mrs Powell asked me to direct myself in the terms of De Silva v The Queen134 as recently approved in Rezaei v R.135 I so direct myself. 204 Mrs Powell submitted that the accused suffers from a forensic disadvantage. Memories fade over the time which has elapsed since the offending began. The delay has caused the possibility of contamination of the complainant’s account. There is no forensic evidence which could have exonerated the accused. 205 In relation to complaint, Mrs Powell submitted that the absence of a complaint witness causes a significant gap in the prosecution’s case. The evidence of complaint does not explain how the allegation first came to light. It does not in this case demonstrate consistency of conduct. 206 Mrs Powell itemised the prosecution’s evidence of discreditable conduct in respect of which careful directions need to be given. They are as follows: • Lap sitting; • The accused’s anger; • The shower block incident; and • Events in the adult’s bed. 207 Mrs Powell submitted that there is no corroboration of the complainant’s evidence. 208 The accused has been forthcoming and candid about the opportunity to offend. There must be an articulated reason to reject his evidence. 209 Mrs Powell repeated in short hand fashion the weaknesses of the prosecution case: 133 [1985] HCA 66. 134 [2019] HCA 48. 135 [2024] SASCA 150 at [75]-[89]. -- 30 of 48 -- [2025] SADC 134 29 • The complainant’s evidence of being touched by the accused in the adult bed is contradicted by RH; • It is unlikely that abuse could have started within six months of the accused joining the family; • It is unlikely that penile/vaginal intercourse took place when the complainant was only 11 or 12 and moments later she went next door to the accused’s mothers (I note that the evidence is that this incident occurred on the 11 July 2022 when the complainant would have been 13); • There was a high risk of detection of the offending. Other family members were nearby. The alleged acts are not covert; • The alleged offending at the water tanks is said to have caused bleeding and would have been traumatic. Nevertheless, the complainant had dinner with the family; • The alleged grooming by way of preferential treatment and lap sitting falls away; • There is no complaint witness; and • The accused gave an account which has not been eroded. Directions Discreditable Conduct – Sections 34P and 34R of the Evidence Act 210 I firstly identify the evidence of alleged discreditable conduct of the accused in respect of which I give myself the warnings required by ss 34P and 34R of the Evidence Act.136 The alleged items are as follows: 1. The accused having the complainant sit in his lap; 2. The accused’s anger; 3. The shower block incident; 4. The accused referring to and touching the complainant’s breasts; 5. The accused having the complainant come into the adult’s bed; and 6. The accused giving disproportionate attention to the complainant in the family. 136 1929 (SA). -- 31 of 48 -- [2025] SADC 134 30 211 Before I give myself the necessary warnings, I set out how it appears to me the prosecution relies on the uncharged acts. 212 The prosecution sought to demonstrate that the accused engaged in grooming behaviour towards the complainant, behaviour which, while not overtly sexual, had the purpose of normalising behaviours which lead to sexual offending. Under this heading, it is alleged the accused engaged in activities with the complainant to the exclusion of her brothers. At least within the family that had the tendency to isolate her even if other outside adults were present. Mr Vajdic said that isolation was a form of grooming. 213 It is alleged that the accused routinely had the complainant sit in his lap. Others said they had noticed that. 214 The prosecution led evidence that the accused would arrange to have the complainant in the adult’s bed. On one occasion, the accused stayed up late with the complainant on her own. Her uncle, WH, noticed the two of them in the kitchen at 2:00am looking at a mobile phone. 215 I have identified these uncharged acts individually. I will describe them generally as ‘grooming’ in my directions pursuant to ss 34P and 34R of the Evidence Act.137 216 The prosecution case was that the accused would at times become angry. He is alleged to have thrown objects when angry. He is alleged to have been angry at the complainant when there was mint on his pizza. 217 While the shower block incident is alleged to have had a sexual connotation, I do not think that the evidence relating to it is sufficient to warrant attention under this heading. The complainant makes no reference to it. Her mother saw nothing untoward about it. Further, it is unclear what exactly the accused is said to have been doing. I put this topic aside. I do not have regard to it. I will have to consider whether that finding adversely affects the credit of any prosecution witnesses but for present purposes, I put it out of consideration. 218 My directions under this topic therefore relate to allegations of grooming and anger of the accused. 219 The prosecution relies on the evidence of grooming from both propensity and non-propensity purposes. The alleged grooming is said to indicate that the accused had sexual interest in the complainant, one which he acted on in the ways charged. That is the propensity use. 220 The non-propensity uses are that the charged acts do not come out of the blue. There is a lead up to them. The uncharged acts indicate something of the relationship which existed between the accused and the complainant. The 137 1929 (SA). -- 32 of 48 -- [2025] SADC 134 31 complainant was shown favouritism. There was a visible closeness exemplified by the complainant frequently sitting in the accused’s lap. 221 The evidence of the accused’s anger is lead for a non-propensity purpose namely, to explain why the complainant might comply with his wishes and why she might not resist or complain. 222 I now give myself the warnings contemplated by ss 34P and 34R of the Evidence Act.138 223 No evidence is admissible if it used to suggest that the accused is more likely to have committed the charged offences because he has engaged in discreditable conduct. That is an impermissible use pursuant to s 34P(1). It has been described as ‘bad person reasoning’.139 224 I must be satisfied that the probative value of the permissible reasoning outweighs any prejudicial effect it may have on the accused.140 The Court in Eddy (a pseudonym) v The King141 described prejudicial effect in these terms: The prejudicial effect of evidence is the risk that the jury will use the evidence improperly, either by engaging in an impermissible mode of reasoning, attributing disproportionate weight to the evidence, or by becoming distracted from the real issues by reason of an emotional response to the evidence. 225 The permissible and impermissible uses must be able to be kept sufficiently separate and distinct pursuant to ss 3.142 226 The probative value of the evidence is to be assessed, taking the evidence at its highest and having regard to the other evidence in the case.143 227 I do not regard the evidence of discreditable conduct as being essential to the process of leading to a finding of guilt in accordance with s 34R(2).144 Pursuant to s 34R(1), I identify the permissible use of the discreditable conduct evidence described above as demonstrating the nature of the relationship between the accused and the complainant before the alleged sexual offending. It may demonstrate that the alleged offending did not come out of the blue. The accused’s anger might explain why the complainant complied with the accused’s wishes without resistance or complaint. I identify the further permissible use as demonstrating a sexual attraction that the accused had towards the complainant. I do not use the discreditable conduct evidence for bad person reasoning. 138 1929 (SA). 139 R v C,CA [2013] SASCFC 137 at 79. 140 Evidence Act 1929 (SA) s 34P(2)(a). 141 [2024] SASCA 115 at 67. 142 Evidence Act 1929 (SA) s 34P. 143 Eddy ibid at 69. 144 Evidence Act 1929 (SA). -- 33 of 48 -- [2025] SADC 134 32 228 My findings about the permissible uses of discreditable conduct are only processes of reasoning which are aids to proof of the facts in issue. I do not equate that reasoning with proof of the facts in issue. That requires an analysis of the credibility and reliability of the prosecution witnesses, most particularly the complainant. Of course there must first be findings about the conduct before it can be used. A rejection of any of these items of conduct may tell against the credit of the witness who gave such evidence. Complaint – Section 34M of the Evidence Act 229 Evidence of complaint was given by the complainant. She said that she told her school friend, SC that the accused had been fingering her and had ‘stuck it in me’. That evidence, if accepted, is sufficiently referable to the evidence the complainant gave in Court about the charged acts, despite it being an incomplete account. That evidence of complaint can only be taken into account in respect of the alleged offending at Murray Bridge. The complaint preceded the alleged offending in Elliston. 230 The prosecution has disavowed relying on the complainant’s report to her mother on the eve of the matter being reported to the police. While I will have to consider that evidence in a different context, I will not have regard to it for the purposes of complaint. 231 I give myself the warnings contemplated by s 34M of the Evidence Act.145 232 No statement or suggestion has been made that any delay in making a complaint is of itself of probative value in relation to the complainant’s credibility or consistency of conduct146 but the reasons, or lack of reasons, for any delay may be the subject of adverse comment.147 233 I identified the delay in this case. The complainant said that she was sexually abused first when she was about 10. That would suggest it occurred in 2019. No evidence was led about when the complainant complained to her school friend, SC but she said she told SC that the accused had penetrated her. The complainant said the first time the accused had penile/vaginal sexual intercourse with her was on 11 July 2022. The family moved to Elliston in December 2022. That would suggest that the complaint was made in late 2022, some three years after the abuse is said to have commenced. 234 The complainant gave reasons for not complaining. She explained how she felt unable to complain to her mother. She said ‘how do I tell my mum that I am being touched by the person she loves the most …’. She said she was scared of the accused. He was apt to become angry. I will have to consider whether the complainant’s reasons for not complaining to anyone for three years and then not 145 1929 (SA). 146 Evidence Act 1929 (SA) s 34M(2). 147 R v Jones [2018] SASCFC 80 at 117-118. -- 34 of 48 -- [2025] SADC 134 33 saying anything further until questioned by her mother in November 2023, detract from her credit. 235 Evidence of complaint is generally admissible to demonstrate how the allegations first came to light according to s 34M4(a)(i) of the Evidence Act 1929 (SA). However in this case the complaint does not demonstrate that. What the complainant said to her mother in November 2023 did lead to the report to the police but that evidence is not being relied on by the prosecution as complaint evidence. I do not use the evidence of complaint to demonstrate how the matters first came to light. 236 Evidence of complaint is capable of demonstrating a degree of consistency of conduct on the complainant’s part, consistency of conduct in the sense that a report was made when it might be expected to be made and consistency of account in the sense that the terms of the complaint are similar to the complainant’s account in Court.148 237 Evidence of complaint is not admitted as evidence of its truth.149 238 There may be varied reasons why a complainant might complain to a particular person at a particular time150 – Kendall v The King.151 The complainant said that she was unable to tell her mother and was afraid of the accused. She said she told her school friend, SC, because she trusted her not to tell anyone else. 239 The defence case is that even if a complaint was made to SC, there was no reason not to tell her mother. Her mother had told her that she herself had been sexually abused. That should have given the complainant confidence to tell her mother of any abuse she claimed to be suffering. Further, the complainant’s account of being afraid of the accused is not credible. Her mother’s account of the accused’s behaviour does not support that of her daughter. The accused denied getting angry. Forensic disadvantage – Section 34CB of the Evidence Act 240 There has been a delay in the complainant’s allegations coming to trial. The first offending is alleged to have occurred when the complainant was aged 9-10. That would suggest 2019. That suggests a delay of some six years. As a result, the accused has suffered a forensic disadvantage which I bear in mind. The forensic disadvantage arises in the following ways. Memories of witnesses are apt to fade over that time. That makes it more difficult for the accused to challenge accounts and to give his own account. 241 The delay may have given the complainant’s extended family members time to contaminate the complainant’s mind. The defence hypothesis is that the family 148 Evidence Act 1929 (SA) s 34M(4)(a)(ii). 149 Evidence Act 1929 (SA) s 34M(4)(b). 150 Evidence Act 1929 (SA) ss 4(c). 151 [2024] SASCA 54. -- 35 of 48 -- [2025] SADC 134 34 members have erroneously concluded that the accused was grooming the complainant. They have told RH and she has contaminated the complainant’s mind with the idea. 242 Exculpatory forensic evidence might have been adduced if a prompt complaint had been made. 243 The complainant’s school friend is not available to give evidence. 244 I bear these disadvantages in mind. Motive to lie 245 In this case there is no evidence of a motive for the complainant to lie about the charged offence. None was suggested in counsel’s addresses, but the absence of a motive does not strengthen the prosecution case. Lies may be told for unknown reasons. While it is open for the accused to suggest a motive to lie, there is no onus upon him to do so, much less to prove one. The burden of proving its case beyond a reasonable doubt is on the prosecution throughout. Credibility and reliability of witnesses The evidence of the complainant 246 In my view, acceptance of the complainant’s evidence depends more on credibility than reliability. There is in this case no room for her being mistaken about her account. 247 I find the complainant’s evidence credible and generally reliable. There is about it telling detail and nuance. Her evidence is of escalating abuse, beginning with indecent touching in the adult’s bed and leading to penile/vaginal and penile/anal intercourse. 248 The complainant’s account of the accused’s anxiety about her becoming pregnant was credible. She said on the first occasion the accused had penile/vaginal sexual intercourse with her, on 11 July 2022, he ejaculated. He then told her to sit on the toilet before joining her brother next door. She said that the accused told her that she must tell him when she had her period. On an occasion when her period was late and she failed to tell him that it had happened, he remonstrated with her. She described that remonstration occurring after a dinner at the Wudinna Pub. She said that penile/anal intercourse was more common after she began menstruation. The accused told her that if she did become pregnant, he knew people who could take care of it. 249 There is credible detail of the complainant’s account of the incident at night retrieving the toy car. The complainant said it was in the middle of the night. She was told to come outside and retrieve the toy, which she did. The accused then started indecently touching her while she was seated on the tray of the utility. He then had penile/vaginal sexual intercourse with her on the back seat of the utility. -- 36 of 48 -- [2025] SADC 134 35 The accused agrees that he got the complainant to go out to the utility late at night to retrieve the toy but he denies any sexual offending.152 250 The complainant’s account of the ‘clearest time’, the allegation of the accused photographing her while having penile/vaginal intercourse with her in the clearing while checking the tanks at Elliston, includes the detail that when it was over, she was crying. The accused asked her if she was okay and if she wanted to go to the shop and get an ice cream or something. 251 It is true that, as Mrs Powell observed, there are some inconsistencies between the complainant’s account and that of her mother. The complainant said that when she went to the adult bed, she would be on the accused’s side. Her mother said that she would be in the middle.153 There was no exploration of how frequently the complainant went to the adult’s bed. If it was a frequent occurrence, it would be possible that the complainant would have been in both positions, and both she and her mother might be less likely to be precise about where the complainant was. It may be that the complainant remembers only occasions when she was indecently touched as they occurred whilst she was on the accused’s side. 252 The complainant said that the accused was apt to become angry. He would sometimes throw things. Her mother described the accused getting into ‘moods’.154 He would then tend to ignore people. The accused denied ever throwing things apart from one occasion when he threw a tablet and a rice cooker. The accused denied throwing the rice cooker at RH, as the complainant alleged, but he said he pushed it off a bench.155 253 While there is a difference between the evidence of both the complainant and her mother on this topic, it is really one of degree. RH refers to the accused getting into moods. She said she became increasingly concerned about the accused having the complainant on his lap but she felt she had no choice in the matter. She was asked in re-examination what she meant by that. She replied ‘I felt like I had no choice, that if I spoke up about things, I would get yelled at or, yeah, cause drama, and I didn’t like that’.156 254 The accused’s acknowledgement that he threw the tablet and the rice cooker bespeaks a significant display of anger, one which might affect a child such as the complainant more than it might have affected her mother. The complainant’s aunt, CH, noticed the accused’s anger at the complainant when there was mint157 on his pizza, an incident which, while it might be regarded as minor, was memorable to CH. 152 T263. 153 T212.22-23. 154 T288.32. 155 T207.20. 156 T125. 157 T129. -- 37 of 48 -- [2025] SADC 134 36 255 There is said to be an inconsistency between the complainant and her mother about whether there had ever been a conversation between them about the complainant bleeding from her bottom. The complainant denied ever having such a conversation.158 However her mother said that at Murray Bridge they did have such a conversation. Her mother told her that it might have been caused by passing a large stool.159 The complainant denied ever reporting bleeding to her mother as a result of anal injuries causing by intercourse. That might have been the focus of her attention when she denied ever having had a conversation on the topic with her mother. It true, as Mrs Powell observed, that the complainant was emphatic in denying that she had had such a conversation with her mother, but again I think that emphasis may have been caused by her being sure she never reported to her mother bleeding caused by anal intercourse. 256 The complainant’s credit is questioned because she failed to tell her mother about what the accused had been doing to her. The criticism gains force from the fact that RH had told the complainant that she herself had been sexually abused as a child. However, the complainant tellingly observed that her mother said that she had told her own father about the matter but nothing was done about it. The complainant said she thought that nothing would be done if she complained about the accused. Tellingly, she asked,160 rhetorically, how could she tell her mother that the person she (her mother) loved most was touching her. 257 The complainant’s credit is also questioned because on the first occasion her mother asked her if anything was going on between her and the accused, she said no. Only when she was asked again the following day did she make a disclosure. However, the complainant’s evidence about why she had not told her mother earlier may also explain why she did not make a disclosure the first day. 258 While the inconsistencies between the evidence of the complainant and her mother are not to be dismissed, there are aspects in which RH supports her daughter. 259 RH said that when the complainant started developing breasts, the accused would comment on it. She said she saw the accused touch the complainant’s breasts on a few occasions. He would grab the side of her breast or breasts161 and make a comment. RH said that she told the accused to leave the complainant alone but he continued doing it anyway. RH said that she proposed buying the complainant her first bra but the accused ended up doing it.162 Evidence of the complainant’s mother, RH 260 I find RH’s evidence was credible and generally reliable. Her evidence of biographical matters was not contentious. The defence relies on some of those 158 T78. 159 T121. 160 T73. 161 T105. 162 T106. -- 38 of 48 -- [2025] SADC 134 37 matters. RH agreed that as he got older, her elder son, C, exhibited behavioural problems. He did not move with the family to Elliston. The complainant was a quieter and more obedient child.163 261 RH confirmed that she did not work outside the home. She noticed nothing of her daughter's allegations. That said, she said that she did come to think that the accused having the complainant on his lap was not right164 when the complainant got older but she did not feel as if she had any choice in the matter. As was pointed out in re-examination, she explained that what she meant by that was that she feared anger from the accused if she raised the matter. RH said that she told the accused to leave her daughter alone when he touched her breasts but he continued doing it anyway. She is not sure whether she told him that in her daughter’s presence. 262 RH said she did have a conversation at Murray Bridge with the complainant about the complainant’s bottom bleeding. She told her that it might have been caused by passing a large stool. 263 RH said that at Murray Bridge the accused would ask the complainant to join them in the bed at night. She would wake up in the morning and find the complainant there.165 264 RH said that at Elliston, the accused would ask the complainant to go with him on errands. If the complainant was reluctant to go, she would tell her to go ‘because you know what he’ll be like if you don’t go’.166 She said what she meant by that was that the accused would ‘get in a mood’. She explained that usually that would mean that he would exclude himself by ignoring her but sometimes, although not all the time, he would get angry and be shouting.167 265 While RH saw nothing of the accused’s alleged offending, and in that sense she does not corroborate her daughter in critical respects, her evidence is supportive in ways which appear modest and credible. They include her observations and unease about the accused having the complainant in his lap as she got older and his touching of her breasts and commenting on them. RH’s evidence about what I would describe as the accused’s moodiness is consistent with the complainant’s account, although the complainant’s account is more graphic. 163 T110. 164 T115. 165 T103-104. 166 T101. 167 T101-102. -- 39 of 48 -- [2025] SADC 134 38 Evidence of the complainant’s aunt, CH 266 CH was criticised by the defence for being part of the complainant’s extended family who have infected her mind to make false allegations. CH is part of ‘the tittering masses’,168 as defence counsel put it. 267 Mrs Powell submitted that members of the extended family had come to have no time for the accused. There is a basis for that submission. The complainant’s grandfather, IH, agreed that he had come not to like the accused.169 IH also agreed that at about the time his son, WH, visited the complainant’s family, he told WH to keep an eye on the complainant and the accused because things were not quite right there.170 268 On that basis, I accept that IH had formed a suspicion about the propriety of the relationship between the accused and the complainant, and he communicated that suspicion to his son. It may be assumed that that suspicion also came to the attention of WH’s wife, CH. Certainly CH passed her suspicion onto RH. CH rang RH on 29 November 2023 and that discussion led to RH questioning the complainant about the matter.171 269 Nevertheless, CH’s two pertinent observations are relatively modest. She said that while she was sitting172 on the veranda of the complainant’s house during their visit, she noticed the complainant sitting on the accused’s lap, leaning back against his chest. CH was sufficiently struck by the observation to call the complainant into the house under a pretext. 270 The other observation is of the accused swearing at the complainant because173 there was mint on his pizza. The pizza had been purchased from the shop where she worked. While that might be regarded as a minor matter, it was sufficiently memorable for CH to notice. In my view, this evidence was unlikely to be invented. It is consistent with the complainant’s evidence of being scared of the accused. 271 CH agreed that her observations of the accused and the complainant concerned her. She thought that the accused’s behaviour was inappropriate. She agreed she became more concerned when she spoke to other family members. Evidence of the complainant’s uncle, WH 272 WH gave evidence of two observations he made of the accused and the complainant when he and his wife visited their family at Elliston. 168 T303.30. 169 T171. 170 T171-172. 171 T107. 172 T128.1-3. 173 T129. -- 40 of 48 -- [2025] SADC 134 39 273 The first is of noticing the accused and the complainant together at 2:00am looking at a mobile phone when he was on his way, via the kitchen/dining room174 on his way to go outside to urinate. That observation is not disputed. It is in my view evidence of an unusual closeness, consistent with the complainant’s evidence, although not, of course, evidence of a charged act. 274 The other observation WH made is noticing that, earlier in that same evening, when people were gathered on the veranda, the complainant and the accused were sitting very close together, brushing up against each other.175 WH acknowledged that in a statement he gave to police he said he did not remember that observation until his wife mentioned it to him later. I will not give significant weight to this observation. 275 WH agreed that his father, IH, had told him of a suspicion he had about the accused’s behaviour towards the complainant, but WH said he was told that after the visit, not before. He added that his father asked him if he thought the accused was grooming the complainant.176 Evidence of Ms Sward 276 Ms Sward was friends with the accused’s mother and her husband was friends with the accused. Ms Sward was not questioned about her current relationship with the accused. 277 Ms Sward spoke of an observation she made about the complainant’s family dynamics, but only while they were at Murray Bridge. She said she would visit the family at least once a week.177 Her evidence was not disputed. She said that the accused’s relationship with the complainant’s older brother appeared to be toxic. She said C would seek the accused’s approval but the accused pushed him away,178 by which I take her to mean emotionally rather than physically. She said the accused did not appear to spend any time with the complainant’s younger brother. 278 The accused’s relationship with the complainant appeared very different. The accused would regularly initiate the complainant sitting on his lap. He would often tap his knee or pull her over as she walked past. She would sit on his lap for long periods.179 Evidence of the complainant’s step-grandmother, MH 279 MH gave evidence on three topics. The first is the shower block incident. I will not dwell on this topic because it is not clear what findings can be made about exactly what the accused was doing. MH certainly regarded what she saw as 174 T139.3-4. 175 T139. 176 T144. 177 T148. 178 T147. 179 T147. -- 41 of 48 -- [2025] SADC 134 40 raising suspicions about his behaviour, but she made other observations which also raised her suspicions. 280 MH said that she saw a Facebook photo of the accused and the complainant lying in a spooning position while apparently asleep. The accused described a photograph which he implied must have been the same one that was seen by MH. He describes it in more innocuous terms. He said the photo showed him and the complainant sitting down180 with him holding a book from which he was teaching her. The image has not been produced. I cannot make a finding about what it depicted. However, MH agrees that it appears RH took the photo. RH was not asked about it. 281 The third observation made by MH was of the accused coming up behind the complainant and hugging her. She said that happened in the Elliston Information Centre where she worked. I do not understand that observation to be disputed. It is consistent with the complainant’s evidence but is of limited significance. Evidence of the complainant’s grandfather, IH 282 IH gave evidence of noticing the complainant sitting on the accused’s lap when he visited. He saw none of her siblings doing that. He agreed that others were around when that happened. 283 IH agreed that for reasons unrelated to the complainant, he had come not to like the accused. 284 Notwithstanding that fact, I do not understand IH’s evidence to be disputed. I should add in that regard that it was not put to any prosecution witness that the complainant sat on the accused’s knee, rather than his lap. That was a distinction which the accused made with some emphasis. I draw no conclusion from that distinction not being put to the Crown witnesses. Evidence of the accused’s mother, Jayne Brown 285 Ms Brown gave evidence of the dynamics within the complainant’s family. She said that the accused’s relationship with the complainant’s elder brother, C, deteriorated within 12 months. The accused began disliking him. Ms Brown described C as a ‘nasty boy’. She was not asked whether she changed that opinion after the family moved to Elliston, leaving C to live with her. 286 Ms Brown described the complainant’s younger brother as ‘pretty obnoxious’. He would have been aged nine when the family moved to Elliston. 287 The defence points to these assessments to explain why the accused would not have been close to the boys in the way he was with the complainant. 288 Ms Brown’s evidence was not disputed. 180 T254.304. -- 42 of 48 -- [2025] SADC 134 41 Evidence of the Psychologist, Mr Srdjan Vadjic 289 Mr Vadjic’s evidence was not disputed but he acknowledged that he had no knowledge of any of the witnesses. 290 Uncontroversially in my view, he said that grooming behaviour by sex offenders enables abuse to happen. It dampens a victim’s ability to disclose offending or to seek help. It enables perpetrators to get close to victims and to isolate them. Grooming might start with joking. It can normalise touching. Evidence of the accused 291 I treat the accused’s evidence in the same way that I treat the evidence of the other witnesses. 292 In my view, there were significant aspects of the accused’s evidence which lacked credibility. At times his attempts to explain otherwise undisputed evidence were unconvincing. For example, his insistence that the complainant only ever sat on his knee rather than his lap, was unconvincing. His explanations for needing to get the complainant to retrieve the toy car from his utility at night was unconvincing. He said he was unable to retrieve it himself because he was not skinny enough and he had a bad back. He was not asked how the toy car go into the position from which it had to be retrieved. 293 While I make observations about aspects of the accused’s evidence lacking credibility, or being unconvincing, I do not lose sight of the fundamental requirement that the prosecution must prove its case beyond reasonable doubt. It is not for the accused to prove anything. Even if I reject his evidence that does not strengthen the prosecution case.181 294 The accused gave contradictory evidence on the topic of favouritism towards the complainant when compared to her brothers. While he acknowledged that his relationship with C deteriorated and that B was not too interested in anything but TV, he insisted that he paid no more attention to the complainant who was a good girl, than he did to the boys.182 When asked why he did not take either boy caving, he said that C was naughty and B was not interested.183 295 Notwithstanding acknowledging the deterioration in his relationship with C, he claimed that in Murray Bridge it was more often that he would take C than the complainant on errands.184 He said C would sit on his knee.185 C was aged between nine and 14 when the family lived at Murray Bridge. When questioned about whether the complainant sat on his knee more than C, the accused said ‘not really, 181 Liberato v The Queen [ 1985] HCA 66; (1985) 159 CLR 507). 182 T204-206; T237. 183 T217. 184 T239. 185 T239. -- 43 of 48 -- [2025] SADC 134 42 no' but when it was put to him that the complainant did sit on his knee more than C, he said ‘sometimes, yes’.186 296 The accused explained in some detail the extensive hours he worked and studied while at Murray Bridge as well as the physical ailments he suffered from. He began study and work in October 2018. He said he averaged between 60 and 80 hours a week, with his longest being 92 hours. He suffered bulged discs and arthritis in his back. He had had a couple of steroid injections and had had cortisone injections in his lower back. He did not get much sleep. Some days he was like a zombie.187 When asked whether he ever got angry around the family, he said that he did not have the energy to.188 The impression from this evidence was that he had no opportunity to offend or the capacity to get angry in the way alleged. Notwithstanding that evidence, the accused agreed he took the complainant snorkelling and caving, in each case along with other adults. He watched X-box with C at 2:00am.189 IH said he went fishing with the accused. He said the family would go to the skatepark. He said he taught the complainant to read and write and to ride pushbikes and motorbikes.190 The accused acknowledged that his work and his ailments did not interfere with his sexual relations with RH. 297 The accused acknowledged that at Elliston, he was in the kitchen with the complainant at 2:00am during the visit by CH and WH. He was scrolling Facebook with her. He did not know why he did not tell her to go to bed. He thought it would be possible he had been in the kitchen with her for about an hour.191 298 The accused acknowledged that he would apply the acne treatment to the complainant. He said he did it because RH was too busy. He did it every couple of nights.192 299 It is true, as Mrs Powell had pointed out, that RH saw nothing sufficiently amiss in the accused’s behaviour towards her daughter. Sitting on the lap or knee, the acne treatment, the going on activities and the staying up late had become commonplace. RH said that she increasingly had reservations about the lap sitting and the breast touching but she did nothing effective about it. Most, or all, of these activities were carried out in the presence of others. Only the intervention of family members, in particular CH, caused RH to question her daughter. Offending as alleged could be reasonably described as brazen. 300 Nevertheless, it is not unknown to the Courts that sexual abuse of children is committed in brazen circumstances. 186 T243. 187 T201-202. 188 T206. 189 T237. 190 T205. 191 T243-245. 192 T265. -- 44 of 48 -- [2025] SADC 134 43 301 The accused’s explanation for being alone with the complainant on 11 July 2022, the day she says the accused first had penile/vaginal sexual intercourse with her, is unconvincing. RH had gone for the birthday party, taking the youngest child with her. The plan was for the three older children to go next door to be looked after by the accused’s mother. The boys went but the complainant did not. The accused said he stayed home briefly that day before going to work. He mislaid his keys. The complainant stayed back for two or three minutes to help him find them. In cross-examination, he said that he asked the complainant to help him because she used to know where things were. He did not ask the boys because they were playing up.193 302 The accused’s evidence on the topic of touching the complainant’s breast or breasts is unconvincing. The complainant said he frequently touched her breasts. RH said she saw the accused doing so on a few occasions while making a joke about it. RH said that she told the accused to leave the complainant alone, although she may not have done so in her daughter’s presence. The accused said that the topic of the complainant developing breasts was raised by RH. At the time he said ‘wow’ and he explained in some detail how he pulled the complainant’s shirt at the side of a breast to better see it.194 Consideration 303 For reasons I have referred to, I reject the accused’s evidence as being reasonably possible. In important respects, he was inconsistent and gave unlikely accounts. He was inconsistent on the topic of favouring the complainant among the siblings. I find that the accused plainly paid more attention to her than he did her brothers, and that is not explained solely on the basis of the behaviour of the boys. The greater attention manifested itself in the lap sitting, the acne treatment, the staying up late at night and the taking of the complainant on errands and excursions. 304 The accused’s attempts to deny the opportunity to offend by detailed reference to his work and ailments were at odds with other evidence of his activities. 305 The accused gave unlikely or implausible explanations for the toy incident and for the complainant being alone with him on 11 July 2022. 306 I find that the accused was evasive on the topics of lap sitting, breast touching and staying up late with the complainant. 307 However, as I have already mentioned, my rejection of the accused’s evidence does not strengthen the prosecution’s case. The prosecution must prove 193 T253. 194 T215-216; T232. -- 45 of 48 -- [2025] SADC 134 44 its case beyond reasonable doubt and must demonstrate that the accused’s case is not reasonably possibly true.195 308 For reasons I have referred to, I found the complainant’s evidence to be credible and reliable. Her evidence was detailed and nuanced. 309 I will explain why I reject the principal criticisms of the complainant’s evidence. 310 I accept that the complainant’s evidence is of brazen behaviour on the accused’s part. Some, although not all, of the alleged behaviour occurred in the home where other family members were present. The acts alleged on 11 July 2022 at Murray Bridge occurred when no one was in the house and the acts alleged when the accused was checking the tanks at Elliston, were well away from the home but others were at a high risk of detection. However, the evidence suggests strongly that the complainant was a compliant child and no one in the house raised any concerns about the accused’s favouritism towards, and close contact with her. Without comment in the house, the complainant sat on the accused’s lap frequently. The accused regularly applied the acne treatment. He showed favouritism towards her and he stayed up late with her. I find that the accused was in these ways, grooming the complainant so that sexual abuse was enabled without protest or complaint by anyone. Brazen though some of the offending was, it occurred without detection. Only the intervention of other family members raised the alarm. 311 The defence submits that there is no evidence of complaint which might enhance the complainant’s credit. Only the complainant herself gave evidence on that topic. In any event, the complaint refers only to events at Murray Bridge. It does not bear on the allegations at Elliston. 312 I do not accept that submission. I find that the complainant gave credible and reliable evidence of complaining to her school friend, SC, someone she trusted not to tell anyone else. If, as I think is the case, she complained in the latter half of 2022, that is between the event on 11 July 2022 and the move to Elliston in December that year, it was a relatively prompt complaint. The complainant’s reasons for not telling her mother are compelling. Notwithstanding that her mother told her she herself had been sexually abused, she also let it be known that she had told her father and nothing was done about it. 313 Further, the complainant compellingly asked how could she tell her mother that the person she loved most was abusing her. Still further, I find that there is compelling evidence of the complainant being fearful of the accused. RH was, as the defence emphasises, fairly muted about the accused’s anger. Nevertheless, she mentioned the accused getting into moods. She mentioned fearing shouting from 195 Douglass v The Queen [2012] HCA 34. -- 46 of 48 -- [2025] SADC 134 45 him. It is a not insignificant act of anger to throw or throw down articles such as the tablet and the rice cooker. 314 I accept CH’s evidence about the accused swearing at the complainant about the mint on his pizza. That might on one view of it be a minor matter, but to swear peevishly at a teenager about something so trivial points to behaviour on the accused’s part which would make the complainant at least wary about the accused, wary enough to comply with his wishes and not make what she reasonably believed would be a hurtful disclosure to her mother. 315 The officer in charge of the investigation gave evidence that SC’s mother told her that SC would not be available to give evidence. That in my view is sufficient explanation for why SC was not called. 316 I find that the complainant’s complaint to SC does in a relatively limited way, bolster her credit in regard to the events at Murray Bridge. 317 The accused submits that the complainant’s account arises from infection by family members. They have planted the idea of sexual abuse in RH and RH has, in turn imparted the idea to her daughter. By making her own disclosure to the complainant, RH has given the complainant the vocabulary of sexual abuse. 318 I reject that submission. Taking a second limb of the submission first, I reject the suggestion that RH’s disclosure has given the complainant the vocabulary of abuse. That submission flies in the face of the complainant’s detailed and nuanced account of extensive abuse. RH denied asking the complainant about specific forms of abuse. There is no suggestion RH mentioned topics such as masturbation by the accused, anal intercourse or photography. 319 Turning to the first limb, I reject the suggestion that the complainant has been infected by what others have said. The most that CH is likely to have said to RH on 29 November 2023, is that she suspected the accused of sexually abusing the complainant in a general way. She might have told RH about her husband seeing the accused up late with the complainant on one of the nights of their visit. She might have repeated the shower block incident which MH had already told RH about. She is likely to have suggested that the lap sitting was suspect. She had either seen or been told about these things. There is no evidence that she saw or was told about other behaviour. 320 It is true that her father-in-law, IH, had come not to like the accused for other reasons. That might have inclined CH against the accused but there is simply no basis for finding that CH told RH about anything else. Her intervention certainly caused RH to question the complainant, but I have already found that RH did not give the complainant the vocabulary for her extensive account in court. I reject the suggestion that the complainant’s account has been infected by others. -- 47 of 48 -- [2025] SADC 134 46 321 I accept that witnesses can lie for no known reason, but in this case there is in my view no basis for speculating that the complainant has lied. She was plainly favoured by the accused in the family, despite her being somewhat scared of him. 322 I reject as reasonably possibly true the accused’s account. I am satisfied beyond reasonable doubt of the truth and reliability of the complainant’s account. It is detailed and nuanced. Her credibility is enhanced in a limited way by her complaint to SC. Her account gains some limited support by her mother. Others speak credibly of her being favoured and groomed. 323 I find that all of the elements of the charge are proved beyond reasonable doubt. At the relevant time the accused was an adult and the complainant was a child aged between nine or 10 and 14. I find that the accused committed all of the unlawful sexual acts set out in the Information with the frequency there alleged. I find that particulars (a), (b), (f) and (h) amount to the offence of indecent assault, particulars (c), (d) and (e) amount to unlawful sexual intercourse and particulars (g) and (i) amount to acts of gross indecency. Verdict 324 Sexual Abuse of a Child – Guilty. -- 48 of 48 --