[2025] SADC 148

Prosecution: R Counsel: MR G DUDZINSKI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: AHMAD RAZA Counsel: MR R WALKER - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 14/05/2024, 15/05/2024, 16/05/2024, 17/05/2024 File No/s: DCCRM-23-039199 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 RAZA Criminal Trial by Judge Alone [2025] SADC 148 Reasons for the Verdicts of his Honour Judge Alexandrides 23 December 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT The accused in this matter is charged with one count of unlawful sexual intercourse and two counts of rape against the same complainant, with two counts of unlawful sexual intercourse charged as alternatives to the counts of rape. The accused elected for trial by Judge alone. Verdict: Count 1 - Unlawful Sexual Intercourse: Guilty. Count 2 - Rape: Not Guilty. Count 3 - Unlawful Sexual Intercourse: Guilty. Count 4 - Rape: Not Guilty. Count 5 - Unlawful Sexual Intercourse: Not Guilty. Criminal Law Consolidation Act 1935 (SA) s 48, 49; Evidence Act 1929 (SA) s 34, referred to. -- 1 of 79 -- Table of Contents Case Summary ............................................................................................................... 1 The Charges ................................................................................................................... 3 Legal Principles.............................................................................................................. 5 Onus and burden of proof ........................................................................................... 5 Separate verdicts .......................................................................................................... 5 Initial complaint and elaboration ............................................................................... 5 Assessment of testimonial evidence ............................................................................ 6 Evidence of the accused .............................................................................................. 6 Evidence of good character......................................................................................... 7 Expert evidence............................................................................................................ 7 Motive to lie ................................................................................................................. 7 Discreditable conduct .................................................................................................. 8 Inferences .................................................................................................................... 9 Circumstantial evidence .............................................................................................. 9 Setting aside any sympathy or prejudice .................................................................... 9 Separate verdicts .......................................................................................................... 9 Elements of the offences ............................................................................................. 9 Prosecution Case .......................................................................................................... 12 RS, the complainant .................................................................................................... 12 Examination in chief ................................................................................................. 12 Date of alleged offending – 27 April 2023 ............................................................. 12 Third convenience store .......................................................................................... 12 Count 1 .................................................................................................................... 13 Count 2 and Count 3 (alternative) .......................................................................... 14 Count 4 and Count 5 (alternative) .......................................................................... 15 Phone call to carers ................................................................................................ 16 Description of accused............................................................................................ 16 Injuries .................................................................................................................... 16 Police station .......................................................................................................... 16 Cross-examination .................................................................................................... 17 Smoking and vaping ................................................................................................ 17 Medication .............................................................................................................. 18 Earlier attendance at other convenience stores ..................................................... 19 -- 2 of 79 -- Police station .......................................................................................................... 19 Location of alleged offences ................................................................................... 20 Medical examination............................................................................................... 22 Re-examination ......................................................................................................... 26 KH ................................................................................................................................. 26 Examination in chief ................................................................................................. 26 Cross-examination .................................................................................................... 27 AS .................................................................................................................................. 27 Examination in chief ................................................................................................. 27 Phillipa Hearnden ........................................................................................................ 28 Examination in chief ................................................................................................. 28 Forensic analysis of RS........................................................................................... 28 Forensic analysis of accused .................................................................................. 29 Amylase ................................................................................................................... 29 DNA evidence ......................................................................................................... 29 Cross-examination .................................................................................................... 31 Contamination ........................................................................................................ 32 Samples 2.03-01 and 2.04-01 (Accused) ................................................................ 32 Sample 3.02-01 (RS) ............................................................................................... 32 Dr Liberty Gallus......................................................................................................... 32 Examination in chief ................................................................................................. 32 Process of taking swabs .......................................................................................... 33 Medical examination of RS ..................................................................................... 33 Cross-examination .................................................................................................... 35 Medical examination............................................................................................... 35 Detective Brevet Sergeant Leon Rusak ..................................................................... 36 Cross-examination .................................................................................................... 37 Recorded interview with RS .................................................................................... 37 Agreed Facts ................................................................................................................. 38 Defence Case ................................................................................................................ 39 Ahmad Raza (the Accused) ......................................................................................... 39 Examination in chief ................................................................................................. 39 Day of alleged offending ......................................................................................... 39 Cross-examination .................................................................................................... 43 Convenience store duties ........................................................................................ 43 -- 3 of 79 -- Cigarettes ................................................................................................................ 44 Interactions with RS ................................................................................................ 45 Hugging incident..................................................................................................... 46 Back room ............................................................................................................... 46 Sequence ................................................................................................................. 46 Post sexual interaction............................................................................................ 49 Alleged transaction ................................................................................................. 51 Re-examination ......................................................................................................... 51 Consideration and Findings ........................................................................................ 51 Assessment of witnesses ............................................................................................ 51 RS, the complainant ................................................................................................ 51 AS and KH (RS’s carers) ........................................................................................ 60 Dr Liberty Gallus .................................................................................................... 60 Ms Phillippa Hearnden ........................................................................................... 60 Ahmad Raza ............................................................................................................ 60 Assessment of Count 1, Unlawful Sexual Intercourse ............................................ 63 Assessment of Count 2, Rape .................................................................................... 67 Element 1 - The accused engaged in or continued to engage in penile vaginal intercourse with the complainant ........................................................................... 67 Element 2 – Did intercourse occur without the consent of RS ............................... 72 Element 3 - The accused knew that the complainant was not consenting or was recklessly indifferent as to the lack of consent to sexual intercourse ..................... 72 Assessment of Count 3, Alternative Offence - Unlawful Sexual Intercourse ......... 73 Element 1 - The accused engaged in or continued to engage in penile vaginal intercourse with the complainant ........................................................................... 73 Element 2 - RS was under the age of 17 years at the time ...................................... 73 Assessment of Count 4, Rape .................................................................................... 73 Element 1 - The accused engaged in or continued to engage in digital vaginal intercourse with the complainant ........................................................................... 73 Assessment of Count 5, Alternative Offence - Unlawful Sexual Intercourse ......... 74 Element 1 - The accused engaged in or continued to engage in digital vaginal intercourse with the complainant ........................................................................... 74 Verdicts ......................................................................................................................... 75 -- 4 of 79 -- R v RAZA [2025] SADC 148 Case Summary 1 The complainant, RS, was born on 23 April 2008 and has been under guardianship orders and in State care since the age of 18 months. 2 On 27 April 2023 RS lived in a shared residential care facility supervised by carers. On that day RS travelled to the city (Adelaide) by train. She attended several convenience stores in Hindley Street intending to obtain cigarettes and/or vapes from store assistants she knew. 3 The accused Mr Ahmad Raza was working alone at the third convenience store RS attended that day. RS had not met the accused previously. 4 CCTV footage shows that RS arrived at the convenience store at 12:23:30 When RS attended, she asked the accused for cigarettes. She then asked the accused about AJ and Mian, two store assistants who she knew. The accused did not provide her with cigarettes. He said that he did not know those individuals. 5 RS then made her way to a room at the rear of store in circumstances which are disputed. On the prosecution case the accused told RS that AJ may be asleep in the rear room. On the prosecution case, as RS made her way behind the counter to the rear room the accused was touching her on the breasts, describing her as cute and telling her he wanted to ‘fuck’ her. 6 The accused denies telling RS that AJ may have been asleep in the rear room. He says that he told her that she was not permitted to enter the area which was behind the counter. He denies touching RS, commenting on her appearance, or expressing any desire to have sex with her. 7 RS was familiar with the room. She had been in that room on previous occasions where she had spent quite some time and had done drugs and alcohol. On four to six other occasions, she had sex in that room with store assistants in exchange for cigarettes, vapes, alcohol and illicit drugs. RS had previously engaged in the same behaviour at other convenience stores. 8 The accused also went into the rear room. There is no dispute that in that room RS engaged in fellatio on the accused. 9 On the prosecution case once in the rear room the accused gave RS a cigarette. It is alleged that as she sat on the couch situated in the room smoking the cigarette, the accused stood in front of her and asked for sex. On the prosecution case RS told the accused ‘no’ and that she had to ‘catch a train’. On the prosecution case the accused pulled down his pants, moved RS’s head towards his crotch and placed his penis in her mouth. -- 5 of 79 -- [2025] SADC 148 2 10 On the prosecution case the fellatio continued for two to three minutes. The accused then stopped and went to the front of the store to serve a customer. He returned a short time later and kept asking for intercourse. RS refused, saying her ‘train was going to leave’, it was ‘going to hurt’ and she ‘did not want it’. The accused then lifted her by the legs, pulled down her pants and inserted his penis in her vagina. He then removed his penis and inserted his fingers in her vagina for several minutes. RS continued to say no and that it was going to hurt. The accused then said she was bleeding and stopped. He then used a paper towel to wipe her genital area and also gave her paper towels. 11 On the prosecution case the accused then left the back room. RS dressed herself and left the store. The CCTV recording shows RS leaving the convenience store at 12:54:27. 12 On the accused’s case he engaged in a consensual act of fellatio with RS in the rear room. The accused’s case is that RS walked into the rear room. He then gave her a cigarette which she smoked. He then attended to a customer in the store. When he returned to the rear room she started hugging him. On the accused’s case she began undoing his pants then placed her hand around his penis and offered to perform oral sex in exchange for cigarettes and vapes. He then engaged in oral sex with RS as she sat on the couch. The fellatio was interrupted at some point when he was required to go to the front of the store to serve a customer. The accused says while RS was sucking his penis, she pulled down her pants and lifted her top. The fellatio continued with RS until he removed his penis from her mouth and ejaculated on her body. 13 The accused denies engaging in any penile or digital intercourse with RS. 14 On the prosecution case RS sent a text message to her carers’ phone. A screen shot of the text message reads ‘i’m being raped’ ‘im in city on Hindley please pickup’. The message was ‘sent’ at 12:44 p.m. RS thought the text message may have been sent when the act of fellatio was interrupted when the accused served a customer, but she said it may have been later when the accused left the room. The text message was not delivered because RS did not have phone credit. The undelivered text message is saved on RS’s phone. 15 After leaving the store RS tried to phone a carer but her phone had no credit. She borrowed a phone from a passerby and called her carers Amreet Andhu and Kai Kooper. She spoke with Amreet and told him that she had been raped and asked him what to do. She then went to the Hindley Street Police Station to report incident and was met there by Kai Kooper. 16 Later that day RS was examined by Dr Gallus, a consultant paediatrician. Dr Gallus observed tearing to the rear fourchette of RS’s vagina. She took swabs from RS’s vagina. -- 6 of 79 -- [2025] SADC 148 3 17 The accused was arrested and charged on 27 April 2023 and a buccal swab, penile swabs and fingernail scrapings were taken from him as part of a forensic procedure. 18 The swabs from the vagina of RS were subsequently analysed by a forensic scientist employed by Forensic Science Service of South Australia. 19 Dr Hearnden, a forensic scientist of the Forensic Science Service of South Australia gave evidence of the results of the analysis. The principal findings of the report are that sperm was detected on the swabs taken from RS’s high vagina, low vagina, labia and perianal area. 20 The swab from RS’s high vagina was subjected to DNA analysis. Epithelial DNA and sperm DNA were identified from the swab. The sperm DNA was a single source profile. It was compared with DNA profile extracted from the buccal swab taken from the accused. The report concluded that statistically there was extremely strong support to include the accused as the contributor of the DNA recovered from the high vaginal swab. The likelihood ratio of the hypothesis of the accused being a contributor to the sperm DNA recovered from the swab taken from the high vagina of RS was greater than 100 billion in favour over the hypothesis that he was not a contributor. 21 On 3 May 2023 RS participated in an identification procedure in which she was provided with a booklet containing photographs of seven men of not dissimilar appearance, including a photograph of the accused. RS selected the photograph of the accused as the person who committed the alleged offences against her. The Charges 22 The accused was charged on an Information dated 13 December 2023 with the following offences: Count One Offence Details Unlawful Sexual Intercourse (Section 49(3) of the Criminal Law Consolidation Act, 1935). Particulars Ahmad Raza, on the 27th day of April 2023 at Adelaide, had sexual intercourse with [RS], a person under the age of 17 years by causing her to perform an act of fellatio upon him. Count Two Offence Details Rape (Section 48(1) of the Criminal Law Consolidation Act, 1935). -- 7 of 79 -- [2025] SADC 148 4 Particulars Ahmad Raza, on the 27th day of April 2023 at Adelaide, engaged or continued to engage in sexual intercourse with [RS], by inserting his penis into her vagina, without [RS]’s consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting. Count Three Offence Details Unlawful Sexual Intercourse (Section 49(3) of the Criminal Law Consolidation Act, 1935). Particulars Ahmad Raza, on the 27th day of April 2023 at Adelaide, had sexual intercourse with [RS], a person under the age of 17 years by inserting his penis into her vagina. Count Four Offence Details Rape (Section 48(1) of the Criminal Law Consolidation Act, 1935). Particulars Ahmad Raza, on the 27th day of April 2023 at Adelaide, engaged or continued to engage in sexual intercourse with [RS], by inserting his finger into her vagina, without [RS]’s consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting. Count Five Offence Details Unlawful Sexual Intercourse (Section 49(3) of the Criminal Law Consolidation Act, 1935). Particulars Ahmad Raza, on the 27th day of April 2023 at Adelaide, had sexual intercourse with [RS], a person under the age of 17 years by inserting a finger into her vagina. 23 Count 3 was charged as an alternative to Count 2 and Count 5 as an alternative to Count 4. The defendant contested the charges and elected for trial by judge alone. -- 8 of 79 -- [2025] SADC 148 5 Legal Principles Onus and burden of proof 24 The prosecution carries the onus of proof. The defendant is presumed to be innocent unless and until the prosecution can prove each of the elements of the offence beyond reasonable doubt. If there remains a reasonable doubt about any of the essential elements of the offence, then the prosecution has not proven its case and the defendant is entitled to an acquittal on that charge. Expressed in another way, if there is a reasonable possibility that the defendant has not committed the offence as alleged the prosecution case must fail. The defendant is not obliged to prove anything to secure his acquittal. 25 The elements of each of the offences with which the defendant has been charged and which the prosecution must prove beyond reasonable doubt are discussed below. Separate verdicts 26 I remind myself that the prosecution is obliged to prove each of the charges based on the evidence relevant only to the charge. The defendant is not to be convicted on the basis that if he were to be found guilty of one of the offences, he must therefore also be guilty of the other offences. Initial complaint and elaboration 27 There was evidence in this case that the complainant disclosed to two residential youth workers the allegation that she had been raped by the accused. The disclosure was made to the carers in a telephone call after RS left the convenience store, and elaborated upon to one of the carers at the police station before she formally reported the allegation. 28 Evidence related to the making of an initial complaint and an elaboration of that complaint of an alleged sexual offence is admissible, including evidence about when the complaint was made and to whom, the content of the complaint, how the complaint was solicited, why the complaint was made to a particular person at a particular time and why the alleged victim did not make the complaint at an earlier time. 29 I remind myself of the directions I am required to follow pursuant to s 34M(4) of the Evidence Act about the use of the initial complaint evidence. 30 The evidence of initial complaint, (a) is admitted— (i) to inform the court how the allegation first came to light; and (ii) as evidence of the degree of consistency of conduct of the alleged victim; and (b) it is not admitted as evidence of the truth of what was alleged; and -- 9 of 79 -- [2025] SADC 148 6 (c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the trier of fact to determine the significance (if any) of the evidence in the circumstances of the particular case. Assessment of testimonial evidence 31 The testimonial evidence of witnesses must be assessed for both its credibility and reliability. 32 I am permitted to consider the demeanour of the witnesses when determining the credibility and reliability. In doing so, I am required to take into consideration that witnesses who come before the court vary in age, background, education, intellectual capacity, ability to express themselves and personal characteristics. 33 The assessment of the evidence of each witness requires a consideration of, amongst other things, its cogency and consistency, whether it is consistent with other facts which I accept, whether the witness has made inconsistent statements in the past and whether the witness has been shown to have lied in the past. 34 The prosecution case rests substantially on the evidence of the complainant, and I am required to scrutinise her evidence carefully. 35 I may accept or reject a witness’s evidence in its entirety. However, I may reject some aspects of the evidence of the witness and accept other parts of the evidence of the same witness. Evidence of the accused 36 The accused elected to give evidence. He was not required to. I remind myself that his evidence is to be assessed in the same way as any other witness and must not be treated as deserving less weight simply because he is accused of criminal offences. 37 The onus and burden of proof is not altered because the accused has given evidence. The onus remains on the prosecution to prove the offences charged beyond a reasonable doubt. 38 The trial is not a preference between the evidence of the complainant and the accused. Even if I do not positively accept the evidence of the accused, but I consider that there is a reasonable possibility it is true, then I must acquit the accused. If I were to reject the accused’s evidence, that is positively reject his evidence, it would not follow from a rejection of his evidence that I would find him guilty of the charges. 39 If I reject his evidence, then I must put his evidence aside. Having put that aside, the question will remain; has the prosecution, based on the evidence that I accept, proven the guilt of the accused beyond reasonable doubt? -- 10 of 79 -- [2025] SADC 148 7 Evidence of good character 40 There was evidence that the accused has no prior convictions for any criminal offences. 41 The extent to which the evidence shows the accused is of good character it is relevant for two purposes. First, to support the accused’s credibility either as a witness, or any statements made to the police. Second, as a factor making it less likely that the accused, as a person of good character, committed the offences charged. Expert evidence 42 The prosecution led evidence from two expert witnesses, Dr Liberty Gallus who conducted a forensic medical procedure on the complainant and took swabs for forensic analysis and Ms Philippa Hearnden, a forensic biologist who analysed swabs taken from the complainant, the accused and the alleged crime scene for the presence of sperm and DNA. 43 The witnesses gave evidence of their involvement in the case and of their opinions arising from their involvement, observations and analysis. The evidence was led to assist the court in making findings of fact. 44 It remains to me as trier of fact in this case to determine the facts. In doing so I must decide what evidence proffered by the experts I accept and the weight to be given to that evidence. I am not obliged to accept the evidence of the expert. 45 I must assess the evidence of the expert witnesses in the same way I assess any other witness. I must also the qualifications of the witnesses, their objectivity or impartiality the reliability of the facts upon which they based their opinion. 46 I am permitted to reject the evidence of an expert witness, including where it is uncontested if there is a rational basis for so doing. Motive to lie 47 In his closing address defence counsel suggested that it may be well understood why RS would be willing to obfuscate about engaging in negotiations with the accused over cigarettes and/or vapes before engaging in oral sex. It was suggested that the reason relates to the shame she experienced about being seen as prostituting herself. It was submitted that this is inextricably linked with the complainant’s evidence about the absence of consent to further sexual acts, which she says did not involve her prostituting herself. 48 The submission in effect suggests a possible motive for the complainant to lie about engaging consensually in the sexual acts comprising Counts 2 and 4. 49 I remind myself that the accused is not required to prove a motive to lie. There may be many reasons for a witness to lie and the evidence given by the witness does not draw any support from the absence of evidence of motive to lie. -- 11 of 79 -- [2025] SADC 148 8 50 In a case where there is a positive assertion that the complainant has a motive to lie or even in cases such as this where there is a suggestion of a motive to lie, that possible motive must be considered when assessing the credibility of the complainant and whether to accept the complainant’s evidence. 51 A rejection of the suggested motive to lie does not assist in establishing the prosecution case. The complainant’s evidence is no more credible simply because a possible reason or motive to lie has been rejected. There may be multiple reasons or motives for a complainant to lie. To reject one possible motive does not exclude other possible motives which are unknown and about which it would be inappropriate to speculate. Discreditable conduct 52 There was evidence that the accused engaged in discreditable conduct both the subject of charged and uncharged acts. The prosecution led evidence and the accused admitted that he engaged in an act of fellatio with the complainant (who he believed was a consenting adult). He gave evidence that he took money belonging to his employer from the cash register at the convenience store. The accused admitted giving the complainant, who was underage, cigarettes and vapes, although he believed that she was an adult. 53 The evidence that the accused engaged in an act of fellatio with the complainant was relevant on the prosecution case only to Count 1 and as part of the narrative of the unfolding of the conduct the subject of the other charges. It was not relevant for any other permissible purpose pursuant to s 34P(2)(a) or to establish any propensity on the part of the accused pursuant to s 34P(2)(b). The evidence was also relevant on the defence case on the basis that the complainant initiated and consented to the act of fellatio in exchange for cigarettes and/or vapes. The accused’s evidence that the complainant consented to the act of fellatio was relevant to her credibility and reliability as a witness, the likelihood that she consented to any subsequent alleged acts of intercourse (which were denied) and his knowledge of, or recklessness, to the absence of consent. 54 The relevance of the evidence that the accused gave the complainant money belonging to his employer was relevant on the defence case as part of the unfolding of the incident and to support the defence case that the complainant engaged in the sexual acts for profit. 55 Evidence on the prosecution case that the accused engaged in discreditable conduct the subject of counts 2 and 4 (and the alternatives to those counts) is relied only to establish the unfolding of events involving alleged acts connected in time and place. It has not been led for any other permissible purpose. 56 It is impermissible and an error of law to reason that because the accused engaged in discreditable conduct involving charged and uncharged acts he is a person of bad character and therefore more likely to have committed the offences with which he is charged. I direct myself that I am not reason in this way. -- 12 of 79 -- [2025] SADC 148 9 Inferences 57 I am permitted to draw inferences or conclusions based on other facts established by direct evidence. In drawing inferences there must be a logical and rational connection between the facts I find and the inferences to be drawn from those facts. 58 I must weigh up all the evidence and decide what evidence to accept and what inferences can be drawn from that evidence and then decide whether the prosecution has proved the guilt of the accused beyond reasonable doubt. 59 In drawing an inference that the prosecution has proven an element of the offence, or the accused is guilty based on an inference, I must be satisfied that that inference is not merely a rational inference, but the only rational inference that can be drawn on the facts I accept. Circumstantial evidence 60 I am permitted to consider items of circumstantial evidence which I accept without deciding whether that evidence is proved beyond reasonable doubt. 61 I bear in mind though that if I draw an inference based on circumstantial evidence that the prosecution has proven an element of the offence or the guilt of the accused, I must be satisfied that it is the only rational inference that the circumstances which I find proven enable me to draw. Setting aside any sympathy or prejudice 62 I am required to bring an open and unprejudiced mind to bear when considering the evidence and determining whether the prosecution has proven its case beyond reasonable doubt. I remind myself of the importance of making a decision without sympathy, prejudice or fear. Separate verdicts 63 I must give each of the charges the accused faces separate consideration by reference only to the evidence admissible in support each charge. The charges do succeed or fail together. The verdict in relation to any one charge cannot determine the verdict in relation to the other charges. Elements of the offences 64 To prove the offence of rape contrary to s 48(1) of the Criminal Law Consolidation Act (the Act) in the context of this case the prosecution must prove the following three elements beyond reasonable doubt; 1. The accused engaged or continued to engage in sexual intercourse with the complainant. -- 13 of 79 -- [2025] SADC 148 10 Under s 5 of the Act sexual intercourse includes any activity consisting of or involving penetration of a person’s vagina or labia majora by any part of the body of another person, Count 2, the charge of rape, requires proof that the accused penetrated the complainant’s vagina with his penis. Count 4, the charge of rape, requires proof the accused penetrated the complainant’s vagina with his finger or fingers. 2. The accused engaged in or continued to engage in sexual intercourse with the complainant without her consent. Consent means a free and voluntary agreement to engage in sexual activity. 65 I direct myself in accordance with the requirements of s 34N of the Evidence Act having regard to the circumstances of this case that; (a) there is no typical or normal response to non-consensual sexual activity and the person is not to be regarded as having consented to the sexual activity the subject of the charge merely because— (i) the person did not protest to or physically resist the sexual activity; or (ii) the person was not physically injured in the course of, or in connection with, the sexual activity; or (iii) the person freely and voluntarily agreed to sexual activity of a different kind with the defendant; or (iv) 1 or more of the following circumstances apply: (A) … (B) … (C) the person had, on that or some other occasion, freely and voluntarily agreed to sexual activity (whether or not of the same kind) with another person; (e) it should not be assumed that a person consented to sexual activity because the person— (iii) was present in a particular location (either generally or at a particular time). 3. The accused knew that the complainant was not consenting or was recklessly indifferent as to the lack of consent to sexual intercourse. -- 14 of 79 -- [2025] SADC 148 11 Knowledge that a person does not consent to sexual intercourse or has withdrawn consent means the person has an awareness that the other person is not consenting or has withdrawn consent. A person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she – • is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decided to proceed regardless of that possibility; or • is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does not in fact consent, or has in fact withdrawn consent to the act before deciding to proceed; or • does not give any thought as to whether the other person is consenting to the act or has withdrawn consent to the act before deciding to proceed. 66 To prove the offence of unlawful sexual intercourse, contrary to s 49(3) of the Act the prosecution must prove beyond reasonable doubt; 1. The accused engaged in sexual intercourse with the complainant. As noted above, sexual intercourse is defined in s 5 of the Act relevantly for the purpose of this case, as any activity consisting of or involving penetration of a person’s vagina or labia majora by any part of the body of another person. Sexual intercourse is also defined under s 5 of the Act to mean any activity consisting of or involving fellatio. The act of fellatio involves the placing of the penis to the lips of a person’s mouth, licking of the penis or placing the penis in a person’s mouth. Count 1, unlawful sexual intercourse, requires proof that the accused engaged in the activity of fellatio with the complainant. Counts 3, unlawful sexual intercourse which has been charged in the alternative to rape under Count 2, requires proof that the accused penetrated the complainant’s vagina with his penis. -- 15 of 79 -- [2025] SADC 148 12 Count 5, unlawful sexual intercourse which has been charged in the alternative to rape under Count 4 requires proof that the accused penetrated the complainant’s vagina with his finger or fingers. 2. The complainant was under the age of 17 years at the time. Pursuant to s 49(7) of the Act consent is not a defence to the charge of unlawful sexual intercourse. The issue of consent is therefore not relevant to proof of the charge. However, in this case the issue of consent with respect to the sexual intercourse the subject of Count 1 is relevant on the accused’s case, not in proof of the charge but to the complainant’s credibility and thereby consideration of the alleged conduct in Counts 2 and 4 and the alternative Counts 3 and 5 respectively. Prosecution Case RS, the complainant Examination in chief 67 The complainant RS was born on 23 April 2008. She was under Guardianship Orders and in care since the age of 18 months. She was living in residential care at Old Noarlunga with carers and other young people.1 Date of alleged offending – 27 April 2023 68 On the morning of the 27 April 2023, RS left home at around 9:00 a.m. or 10:00 a.m. and travelled by train to the city.2 She arrived in the city between 11:00 a.m. and 12:00 p.m.3 69 When she arrived she went to a convenience store on Hindley Street located next to the Rundle Street crossing, closer to the Rundle Mall end of Hindley Street. She went there to buy a vape but did not remember if she purchased a vape.4 70 RS then went to another store to see if two workers she knew, AJ and Mian, were working there. That store is next to or close to the Shisha lounge on Hindley Street. Neither Mian or AJ were at that store.5 Third convenience store 71 RS then went to a third convenience store to see if AJ or Mian were there so she could get cigarettes. AJ and Mian worked at both (the second and third stores). 1 T8-9. 2 T9. 3 T10. 4 T10. 5 T11. -- 16 of 79 -- [2025] SADC 148 13 This third store is located further down Hindley Street next to palm trees.6 Exhibit P1 depicts photographs of that convenience store.7 72 At that store, there was a person working who was behind the counter. This person was the accused. RS briefly spoke to the accused, asking if she could have cigarettes. He said no.8 73 RS then asked where AJ was or if the accused knew AJ or Mian. The accused said AJ was asleep in the back. He then started calling her cute and other names. RS did not know the accused’s name. He introduced himself to her as ‘AR’. RS had never met him before and had never seen him at the convenience stores she had visited.9 74 RS then made her way to the entrance of the back room where AR had said AJ was asleep. She had been to that back room before, about four to six times where she had mainly done drugs such as MDMA, marijuana and ‘nangs’ by which she meant nitrous oxide.10 75 RS moved towards that back room. The accused then started touching her in the hallway. He was touching her on her breasts over her clothing. He was asking for intercourse and was calling her ‘cute’.11 His words were ‘I want to fuck, you’re so cute’. She said ‘No, I have to catch my train’. RS did not recall whether the accused responded. At this stage, they were still in the passageway behind the cigarette shelf.12 Count 1 76 RS made her way into the back room. The accused offered her a cigarette. She sat down on the couch while he served a customer and started smoking the cigarette. RS could not see out to the front of the store. She knew he was serving a customer because he had said a customer came in. The accused then returned to the back room. RS put her cigarette on the metal shelves.13 The accused was still continuously asking to have sex, calling her ‘cute’ and asking for oral sex. He was standing in front of her and she was sitting on the couch. She could not remember if he was doing anything while asking and saying those words. RS continuously said ‘No, I have to catch a train’.14 77 The accused then pulled his pants down and moved RS’s head towards his crotch area. His penis was exposed. RS was saying ‘No, I have to catch a train home’. RS then gave him oral sex for two to three minutes. His penis was in her 6 T11. 7 T12. 8 T12. 9 T13. 10 T13. 11 T15. 12 T16. 13 T16. 14 T17. -- 17 of 79 -- [2025] SADC 148 14 mouth. His penis was erect. During the oral sex, the accused was saying ‘yes’ and ‘please’. RS did not recall him ejaculating.15 RS thought it ended when the accused went out to the front of the store, but she could not remember.16 78 RS then sat down and had her cigarette again from the metal shelf. She tried to text her carers so that she could get picked up because she was not sure what to do. She sent her carers a message saying that she was being raped and she needed help. The message did not go through because she did not have any credit.17 79 RS was shown Exhibit P3 which is a photograph of the text messages she sent to her carer on 27 April 2023 at 12:44 p.m.18 At the time, RS knew that the message did not go through because often when she sends a message on her phone it will say ‘Delivered’, which she did not see on this day. She said the ‘Delivered’ text does disappear. She also knew the message did not send because the message was green. The second page contains a photograph of the contact of her carer who would have been back at her residential care home.19 80 RS explained that she did not leave during the second time the accused left the room because she was very scared. She said that ‘a lot of people that go to these convenience stores in Hindley Street, I understand how they move and operate and I did not – I didn’t want to be seen in that way’.20 81 RS said that she was referring to young girls like herself who come in and sell themselves, or are taken advantage of for drugs and alcohol or because of the word ‘slut’.21 RS said she was not obtaining drugs or alcohol from the accused.22 At this point, the accused was out the front. RS said to her knowledge, she could not have left out the back. Her only exit was to go out the front where the accused was.23 Count 2 and Count 3 (alternative) 82 RS said that after she attempted to send a text message to her carers, the accused retuned to the back room and kept asking for intercourse. RS kept saying ‘No, my train’s gonna leave’ and ‘It’s going to hurt me and I don’t want to’.24 She was also saying ‘No, it’s gonna hurt’.25 83 She said that the accused lifted her legs up around his waist with the upper parts of his palms and held them there with his arms.26 He pulled her pants down. 15 T17. 16 T17-18. 17 T18. 18 T18-19. 19 T20. 20 T21.1-4. 21 T21.18-20. 22 T21. 23 T21. 24 T21. 25 T22. 26 T21-22. -- 18 of 79 -- [2025] SADC 148 15 He spat on her genital area. He then had sex with her by putting his penis into her vagina. His penis was erect.27 While his penis was in her vagina, he was thrusting with the lower half of his body.28 That happened for maybe five minutes. When he was pulling down her pants she was saying ‘No, stop, it’s going to hurt and I don’t want to do it’. He was standing in front of her while she was sitting on the couch, the same position as before.29 Count 4 and Count 5 (alternative) 84 The accused then took his penis out of RS’s vagina and then used his fingers. He thrusted his fingers in and out of her vagina. She did not remember if he said anything before he put his fingers inside her. That occurred for maybe two to three minutes.30 RS had continuously said “‘No, it’s gonna hurt’ ‘kind of thing’”.31 She did not know how many fingers the accused put inside her. She did not remember whether it was his left or right hand.32 This stopped when the accused said that she was bleeding and asked if she needed medical assistance.33 85 The accused then wiped RS’s genital area with paper towel which was in the room on the silver bench next to the fridge. She thought that two to three pieces of paper towel were used. She did not know what the accused did with the used paper towel after this. He also gave her the paper towel and she wiped once. She could not remember what she did with the paper towel that she wiped with. She could not remember if she noticed any blood herself.34 She did not remember if the accused ejaculated. He was not wearing a condom.35 86 RS identified the photograph in Exhibit P1 which depicts a wooden board stating ‘please no entry’. RS agreed that the image depicts the direction she took to get around to the back. The image at page 9 depicts the back room where the alleged offending occurred. The couch depicted in the photograph is where RS was positioned while the acts took place. RS could not say if the paper towel the accused used to wipe her was the towel depicted in photo 024 on page 12.36 87 The accused asked if she needed medical assistance ‘or anything’. She said no and said she was going to go. She got dressed and left. She was wearing her school uniform pants and a white shirt. The pants had an elastic band at the waist. She guessed that the pants were polyester.37 27 T23. 28 T22. 29 T23. 30 T23. 31 T23.25-26. 32 T23. 33 T24. 34 T24. 35 T25. 36 T25. 37 T24. -- 19 of 79 -- [2025] SADC 148 16 88 RS estimated that she was in the store for around 20 to 40 minutes. She could not say how long she was in the back of the store.38 Phone call to carers 89 RS said when she left the store, she immediately tried to call her carers on her phone but she could not do this because she had no credit. She then approached a man and asked to borrow his phone. She then called her carers. She spoke to Amreet and told him that she had been raped and asked what to do. She did not remember if there was anybody else on the line. Amreet told her to go the police station and said that someone would come down to meet her there. At that stage, RS did not know who was going to meet her. After that call, she gave the phone back and walked to the police station.39 Description of accused 90 RS said that when she spoke to the accused, he appeared to understand her ‘to an extent’. RS said that they did not speak in ‘full, strong sentences, it was more words put together’. She said his English was not very strong.40 Injuries 91 RS said she had injuries as a result of what happened. She said there were signs of a little bit of a tear around her vaginal walls. She thought she had bleeding but she did not remember.41 She said that when she was walking to the police station, she could feel that she was leaking something but she was not sure if it was blood.42 She did not have any bleeding prior to the incident. She did not have her period at the time.43 She also had a bruise on her leg, but she did not know if she had this before the incident.44 92 The same day as the alleged offending, RS said she attended for a forensic medical examination at Flinders.45 Police station 93 At the police station, a carer came to see her. RS briefly spoke to him when he asked how she was. She did not remember making any disclosures about what had happened.46 The carer just asked her how she was doing. She thought the carer went and got her new underwear and clothing for the forensic examination. She did not remember if that carer was in the room while she was giving a statement 38 T25. 39 T26. 40 T27. 41 T28. 42 T28. 43 T28. 44 T28-29. 45 T29. 46 T29. -- 20 of 79 -- [2025] SADC 148 17 to police. She did not remember whether she had any conversations with that person outside of the police station.47 94 On 3 May 2023, RS attended at a police station to conduct an ID procedure. RS was shown Exhibit P4, a three page copy of the ID procedure booklet that RS did with the police on that day. RS made the selection of number 6.48 At the time, RS said that person was ‘AR’.49 95 RS identified herself in CCTV footage from Hindley Street. The footage shows RS entering the convenience store and later exiting.50 Once RS had exited the store, she can be seen picking up a phone to her ear which she explained was her trying to call her carers.51 Cross-examination Smoking and vaping 96 RS was 15 years old when she went to the store. She had been smoking since she was 12 years old and vaping since she was about 13 years old. She agreed that she was addicted to vaping at this point, but she was not addicted to cigarettes.52 97 RS knew at the time it was illegal for her to buy cigarettes and vape products on this day.53 When asked whether this meant that she had to be slightly more inventive about how she got vapes or cigarettes when she was 14 or 15, RS said it depended on who was working at the stores. RS agreed that although it was illegal, it did not mean it stopped her from going to ask for them.54 She agreed that if the person serving her said no, she had to come up with another way of getting a vape or cigarette. She said that is why she asked for AJ.55 98 There were certain people in the city at the time from whom she knew she could get cigarettes or vapes.56 She agreed that it was trial and error when asking people whether she could buy things and seeing what their answer was. She agreed that AJ and Mian were two people with whom she had a close enough relationship to ask for vapes or cigarettes. She agreed that along the way, there were a number of people who rejected her requests.57 47 T30. 48 T31. 49 T30. 50 T30-31. 51 T32. 52 T33. 53 T34. 54 T34. 55 T34. 56 T35. 57 T35. -- 21 of 79 -- [2025] SADC 148 18 99 She disagreed that one of the ways in which she tried to address the potential rejection was by carrying a fake ID. She agreed she had a fake ID at that point, but it was not used for that purpose.58 100 She could not remember whether she had any other plan for her day apart from going and getting cigarettes or vapes, but she thought she was buying something for her foster mum. She said it was not really planning, it was ‘spontaneity’.59 101 RS agreed that there were a number of people with whom she would hang around in the city and spend time with around April 2023 and also in the months leading up to April.60 Medication 102 RS agreed that she was taking some medication including Sertraline in April 2023. RS said her carers managed the medication. She was not familiar with the brand name Zoloft and could not say whether she took Sertraline under the brand name Zoloft.61 103 RS agreed she had significant mental health problems at the time including depression and anxiety. Her doctor had prescribed Sertraline to her.62 She said she started on half a tablet and progressed to a full tablet.63 RS said she could not remember if she had progressed to taking a full tablet by the time of the incident.64 104 RS agreed the doctor was at the Adelaide Paediatrics Clinic in Wayville. She recalls reporting to the doctor that the medication gave her a ‘high’ but could not recall if it was in the morning or afternoon. RS recalled telling the doctor that Sertraline made her feel a bit high and then she ‘dipped’. She said that this meant she was more energetic after the medication and then it would dip.65 RS explained that at some point she would be quite happy and energetic and then it would continue to dip to where it was quite low. It was not the kind of high experienced as when taking marijuana.66 She thought this was related to when she took the tablet. 105 RS disagreed that she was feeling a ‘bit high’ because of the medication on the morning of this incident. She did not remember if she took one of her tablets or not. She could not say whether she felt energy from the medication that morning. At that time, she would take the medication quite irregularly. 58 T35. 59 T35. 60 T35. 61 T36. 62 T36. 63 T37. 64 T37. 65 T38. 66 T38. -- 22 of 79 -- [2025] SADC 148 19 Earlier attendance at other convenience stores 106 RS agreed that by the time she met the accused that day she had already looked for AJ and Mian at another place.67 She agreed she had already tried to buy a vape or a cigarette at an earlier convenience store. She did not remember if she had purchased a vape at the first place she went to. If she had bought one, she said she still would have needed to go and look for AJ or Mian because AJ would give her a cigarette, not a vape.68 Police station 107 The day after the alleged offending, RS was interviewed by police on camera.69 RS did not remember if she had told police that she had bought a vape that morning at the train station or at a different convenience store.70 108 RS accepted that she may have been in the third convenience store for 30 minutes but she did not remember exactly.71 109 RS said that she had given an accurate account from her recollection of what happened from the point she entered the convenience store.72 RS said that the conversation she had with the accused behind the counter was all she could remember.73 110 RS said she did not remember whether the accused said she could get a packet for $45 when she asked for a cigarette. She could only remember what she had already said in evidence.74 She agreed that the accused might have said that to her.75 She agreed that her earlier account in evidence was not quite right as she had said the man’s response was ‘no’.76 111 RS agreed that after being told about buying a pack of cigarettes for $45, she did not leave. She agreed that she still wanted a cigarette. She agreed that she wanted to try to persuade the accused or someone else who might be there to give her a cigarette, that is why she asked for AJ. She did not remember if she showed the accused her fake ID to prove she was entitled to buy cigarettes. She said she might have done this but did not know. She agreed that her fake ID showed she was above the age of 18.77 67 T39. 68 T40. 69 T41. 70 T41. 71 T41. 72 T41-42. 73 T43. 74 T43. 75 T43. 76 T44. 77 T44. -- 23 of 79 -- [2025] SADC 148 20 112 She agreed that the man behind the counter did not speak English very well.78 113 She agreed that she had said in evidence that the accused told her AJ might have been asleep in the back. In cross-examination, she said the accused might have said that, but she did not recall exactly.79 Location of alleged offences 114 RS agreed that she had previously gone into the back area of the shop. She said she had hung out there for quite some time on earlier occasions when she had done drugs, alcohol, RS volunteered that she done prostitution in the back area of the shop. The drugs included possibly MDMA, marijuana and ‘nangs’. She did not use methamphetamine. She had done this and had drunk alcohol with one or both of the workers she knew there, AJ and Mian.80 She only did marijuana once with one of them. 115 RS agreed there were a number of times she had gone to the back of the convenience store and emerged again after having done drugs or alcohol. She agreed this was not the only convenience store she did these things at. She agreed it occurred at other stores on Hindley Street.81 She agreed that in addition to the four to six times she had done it at the third convenience store, there were other times she had done it at other convenience stores as well. She agreed that this all occurred in the time leading up to 27 April 2023.82 116 RS agreed that she had said one of her reasons for not coming out of the back room while she was being sexually abused was that she did not want to be seen by members of the public in those circumstances.83 She disagreed that she had previously been seen many times in that store and other convenience stores, emerging from out the back after having consumed drugs or alcohol with store workers. She explained that each worker would check that there were no customers in the store each time they would emerge.84 117 RS agreed that there would always be a risk of being seen. She disagreed that this was not part of her reasoning as to why she did not leave the back room when she was being sexually abused.85 She disagreed that the truth of it was that she was willing to stay out there and have a sexual interaction with the accused for cigarettes or vapes, or both.86 78 T44. 79 T44. 80 T45. 81 T46. 82 T46. 83 T46. 84 T46-47. 85 T47-48. 86 T48. -- 24 of 79 -- [2025] SADC 148 21 118 RS agreed that she had said the accused gave her a cigarette which she smoked while she was in the back room. 119 RS could not recall if she stole a vape from the accused. She did not recall if she told police later that afternoon that she had stolen a vape from that man. She did not remember if she left the store with a vape. She did not remember if the police seized a vape from her. She agreed that it was possible that she stole a vape from the accused while in the store that day.87 She explained that she might have stolen a vape because she had an addiction and if she had a chance to steal a vape from someone she did not value as a ‘higher human being’, given what was happening at the time, she said she knew she would take it.88 However, she did not recall that opportunity presenting itself on this occasion. 120 RS later said that she did not remember taking the vape at all and therefore did not remember if she took it before any sexual interaction had taken place. She did not remember if she told police that she had taken the vape before any sexual interaction occurred.89 121 RS said that when she spent time at other convenience stores smoking, vaping, drinking or doing drugs, it was not always with AJ or Mian, there were also others.90 122 RS did not agree that the accused said nothing about AJ being out the back or possibly being out the back. RS did not recall the accused saying he did not know who AJ was.91 She maintained that the accused said AJ was sleeping in the back.92 123 She agreed that she told police that she went around the back and that the accused followed her.93 124 RS was asked if she told the police on 27 April 2024 that the man offered her a vape. She said she did not remember anything the accused did with a vape in the store, including whether he offered her a vape.94 She did not remember whether she stated to police that upon having entered the back room, the accused offered to go and get her a cigarette, however she did recall that is what occurred.95 She did not remember whether she told the police that when the man left the room to go get a cigarette, she stole the vape that he had given to her and put it in her bag. She did not remember whether that actually happened either.96 She did not 87 T48. 88 T49. 89 T79. 90 T49. 91 T77. 92 T79. 93 T79. 94 T79. 95 T80. 96 T81. -- 25 of 79 -- [2025] SADC 148 22 remember whether the accused got a cigarette from the back room or from the cigarette counter. She did remember him leaving at some point.97 125 RS recalled the man calling her ‘cute’ as soon as she entered the store and at the counter, before she got to the back room. She believed he was asking for intercourse later. She agreed that it happened very quickly and there was not much conversation with him when she entered.98 She agreed that it was a short time between speaking to the accused and her heading out the back to see if she could find AJ. She agreed the accused was touching her sexually on parts of her body before she got to the back room and she had not been in the store very long before that happened.99 126 RS did not remember whether she told police that it was not until she had gone to the back room and found AJ was not there that the accused started to grab and kiss her.100 Medical examination 127 RS had a medical examination with a doctor.101 She did not remember the doctor’s name. 128 She could not recall being asked by the doctor what had happened leading up to the assault, or telling the doctor that when she entered. She asked the accused where AJ was and he suggested she go to the back and look for him. She did not remember telling the doctor that the accused suggested she sit on the sofa and have a cigarette. 129 RS did not remember any part of her conversation with the doctor. She only recalled the physical examination.102 She could not agree whether she gave a different sequence of events to the Court than she did to the doctor because she did not remember the conversation with the doctor.103 130 RS had said in evidence that the accused put his fingers in her vagina for two to three minutes. She could not remember saying to the police that the accused only put his fingers in her vagina and ‘pushed them in and out over and over again for a few seconds’.104 RS was shown her statement dated 29 October 2023 then agreed that she did tell the police the accused penetrated her vagina with his fingers in and out over and over for a few seconds.105 When shown her statement she agreed 97 T81. 98 T81. 99 T82. 100 T82. 101 T82. 102 T84-85. 103 T86. 104 T86. 105 T87. -- 26 of 79 -- [2025] SADC 148 23 that she had told the police that the man penetrated her vagina with his fingers in and out over and over for a few seconds.106 131 RS agreed that in April 2023, she felt she did not have much self-control when it came to drugs. She agreed there were times when she would leave her residential care to go and meet up with people and take drugs, and go to the city and drink alcohol.107 She agreed that she took MDMA and marijuana in the past but not on the day of the incidents.108 She agreed she had tried cocaine. She agreed that her carers did not want her to be doing these drugs. She disagreed that she would get in trouble with her carers if she did these drugs. She agreed that she could get into trouble with the police for taking drugs, but not with her carers. She agreed that her carers had counselled her to not take drugs and that they may be disappointed, but she would not get in trouble.109 132 She agreed there were times when she did quite risky things with drugs and alcohol. She agreed there was a time in November 2022 when she took 1.5L of alcohol to school. In February 2023, she took eight to nine tablets of nerve medication called Lyrica.110 She agreed that she met up with strangers and got drugs from them. She accepted that this was risky behaviour at the time.111 133 She agreed that in February and March 2023, she negotiated transactions with men whereby she would have sex with them in exchange for something of value to her, such as cash, drugs and alcohol. The majority of the time, the act she agreed to engage in was oral sex or a head job. Sometimes RS initiated it and sometimes it was the other party. She said ‘it was kind of 50/50’.112 134 She did not remember telling her carers on 22 April 2023, the day before her birthday, that she was going to the city with a man aged over 40 to drink alcohol or use nitrous oxide.113 135 RS had said in evidence that she did not want to emerge from the room at the back of the convenience store for fear that she would be seen by members of the public to be ‘that kind of person’. She agreed that she went looking for AJ out the back and found he was not there and agreed that she was then just going to leave. She was not concerned at that point about being seen as ‘that kind of person’ when leaving the back room of the convenience store because there were no customers in there at the time. She agreed she could not see whether there were customers, but she said the accused would have gone out there if there was a customer. She agreed that neither of them would have seen whether there were any customers. It 106 T87. 107 T87. 108 T88-89. 109 T89. 110 T89. 111 T90. 112 T90. 113 T91. -- 27 of 79 -- [2025] SADC 148 24 was put to RS that she was not concerned to leave when the risk to her was that she might be seen as ‘that sort of person’. She said she was concerned enough.114 136 RS agreed that at the point when she says the accused had pinned her down on the couch and then left to attend to a customer, she knew he was intending to have sex with her. She agreed that she still did not leave despite knowing that.115 She agreed that it was a worse prospect to be raped rather than having a member of the public see her leaving. She said she did not leave because she was frightened.116 137 RS denied that she had agreed to have a sexual interaction with the accused. She denied that she was staying out the back to perform a sexual act and then get what she had agreed to transact with him.117 138 RS said she could not remember if she attempted to send a text message to her carers after she had given the accused oral sex and he went to serve a customer, but it was when he left to serve a customer. She did not remember whether the message was sent between the oral sex and the time she says the accused put his penis in her.118 She looked at Exhibit P3, which depicts the text message with a time stamp. This did not help her recall the sequence.119 She said she did not recall the order of the text message 100%. She was shown her statement dated 9 May 2024. This did not help her refresh her memory as to when the text message was sent in the sequence of the acts.120 She did not recall whether she had been inside the shop for about 20 minutes by the time she sent the text message.121 139 RS did not remember whether there was other conversation with the accused before she gave him oral sex. She did not remember if that included a conversation about her willingness to do that in exchange for some cash, vapes or cigarettes. She agreed that she understood that the accused was not going to give her cigarettes for free after she asked for them. She did not recall making a bargain or transaction with him that she would give him oral sex in exchange for cash and cigarettes or vapes. RS said she did not think she would have said that to him.122 140 RS did not remember if the accused asked her how old she was after he told her the cigarettes were $45. She did not remember whether she showed him her fake ID. She did not remember whether she said she could not afford to buy cigarettes. 114 T91. 115 T92. 116 T92. 117 T93. 118 T93. 119 T94. 120 T95. 121 T95. 122 T95. -- 28 of 79 -- [2025] SADC 148 25 141 In response to the proposition she offered to have sex with the accused in exchange for cigarettes and money (around $200), RS said ‘No, that’s not what I recall happened’.123 She disagreed that at the end the man gave her some vapes and $200.124 142 She disagreed that after that point, she hugged and kissed the accused. 143 RS agreed that she went around the back and had a cigarette when he gave her a cigarette. She agreed she was not being forcibly held in that room against her will.125 She disagreed that the reason she stayed in the room was because she made an agreement with the accused to suck his penis. She agreed that she did suck his penis. She disagreed that this was not forced on her. She said it was. 144 She disagreed that she lowered the clothing over her vagina. She said the accused did that. RS said the accused did not to her recollection ejaculate on or near her vagina.126 She said she wiped herself once with a paper towel. She could not remember whether he wiped himself with a paper towel. She disagreed with the proposition that the man did not wipe her with the paper towel. She did not remember whether she rubbed fairly hard against her vagina with the paper towel. She disagreed that she might have given herself the abrasions on her vagina when she wiped with the paper towel.127 It was suggested to RS that the man in the end gave her some vapes and $200. She said she could not remember. 145 RS did not remember whether it was only as she was walking to the police station that she realised she was bleeding. She was not sure whether it was blood, she just knew something was leaking in her underwear.128 146 She agreed that she had said that before the accused put his penis in her vagina that he spat on her.129 She agreed that at the time, she thought this was lubrication. She could not recall whether she had previously told police that the accused did not do anything to lubricate before sex or make it easier.130 She did not remember a conversation with police in the recorded interview when they asked ‘Did he do anything to try and lubricate you to make sex easier’ and she responded ‘no’. She could not recall whether she also told the doctor that the accused did not use lubricant.131 147 She did not remember whether she told Kai that the accused made her wipe herself.132 123 T96. 124 T98.23-24. 125 T97. 126 T97. 127 T98. 128 T98. 129 T98. 130 T99. 131 T99. 132 T99. -- 29 of 79 -- [2025] SADC 148 26 148 RS did not know until she had sent the text message to her carers that it was not going to get through. She cannot remember if she knew that she did not have credit.133 149 She disagreed that the accused did not ask her if he could have sex with her.134 She disagreed that the accused never called her cute. She could not remember if the accused touched her bottom. She disagreed that at no point the accused put his penis inside her vagina. 150 She disagreed that at no point the accused put his fingers inside her vagina She disagreed that at no point she said ‘no’. RS said she did say ‘no’ and that she did not want to do it.135 151 She agreed that she was not particularly ‘putting up any physical resistance’ to the accused. She agreed that she did not do anything physically to prevent the accused from having intercourse with her.136 152 During February and March 2023, there were acts other than oral sex that she engaged in in exchange for alcohol and drugs. She could not remember exactly what these acts were but she said it included penis in vagina. When that happened, she would sometimes use a condom and sometimes not. It was mainly the other person who would decide whether they used a condom or not.137 Re-examination 153 On the day of the incident, when she was talking to police, she was feeling a bit in shock. The following day when talking to police, she felt tired, still a bit in shock and like it did not feel very real.138 154 When she had her medical procedure, she felt very vulnerable and like she did not have a lot of control over what was happening to her.139 155 In April 2023, her understanding of the word lubricant in a sexual context was ‘lube for a condom’. She described ‘lube’ as ‘a gel you buy in a store’.140 KH Examination in chief 156 KH is employed with the Department of Child Protection as a residential youth worker.141 133 T99. 134 T100. 135 T100. 136 T100. 137 T102. 138 T102. 139 T102. 140 T103. 141 T104. -- 30 of 79 -- [2025] SADC 148 27 157 On 27 April 2023, he was working at Old Noarlunga with another residential care worker, AS. RS was home that day, but she had gone out at about 10:30 a.m.- 11:00 a.m.142 Later on that day, KH received a phone call on the house mobile phone from RS on a number that he did not recognise.143 158 When the call came through, RS said that she had been raped in town. RS did not provide the exact location but said she was on Hindley Street. He asked where she was and if she was okay. RS said she had been raped and that she was bleeding. He told her to go to the police station.144 159 KH then met RS at the Hindley Street Police Station. Outside of the station, he had a further conversation with RS. RS said that she had been raped at a ‘mart’ or convenience store. RS said that she had been handed paper towels to clean herself up with.145 Cross-examination 160 KH agreed that RS had said that the man who had raped her made her clean herself up with the paper towels.146 AS Examination in chief 161 AS is employed as a youth worker. In 2023, he was involved the care of RS.147 162 On 27 April 2023, AS spoke to RS. He was sitting in an office with KH. The phone rang from an unknown number. AS put the phone on speaker so that KH could listen to the conversation. They answered the phone. RS said ‘Hello, I’m [RS] and I got raped and I can feel when I walk’. AS clarified that she said ‘I’m bleeding. I can feel it when I walk’.148 KH said ‘Where are you’, because RS had mentioned she was on Hindley Street. KH told RS to use any nearest police station and to go there and get help. KH said one of them would be there as soon as they can. RS then said ‘Sorry, I have got to go because I borrowed this phone from someone’. RS then hung up.149 142 T104. 143 T105. 144 T105. 145 T106. 146 T106. 147 T107. 148 T108. 149 T107. -- 31 of 79 -- [2025] SADC 148 28 Phillipa Hearnden Examination in chief 163 Ms Hearnden is employed at Forensic Science SA. She outlined her qualifications and her role at FSSA.150 She explained what DNA is and where it is found and ways in which DNA can be transferred.151 164 Ms Hearnden reviewed the contents of the case file in this matter. A three- page extract from that report was tendered as Exhibit P6.152 165 FSSA was provided with a Forensic Evidence Collection (FEC) Kit in relation to RS. That was given identification No.VE2753. This FEC contained: • a reference sample • a high vaginal swab • a low vaginal swab • a labial swab • a perianal swab • an oral swab of the mouth • swabs of the neck • swabs of the left breast • an oral rinsing from which they produce the palette. 166 She said microscope slides or smears were produced from the high and low vaginal swabs, the labial swab and the perianal swab.153 Forensic analysis of RS 167 Sperm including whole sperm were detected on the high vaginal smear, low vaginal smear and labial smear. Sperm heads only were detected on the perianal smear.154 168 Ms Hearnden agreed that she could not say whether the sperm has come from pre-ejaculate or ejaculate.155 150 T109-111. 151 T111-113. 152 T113. 153 T114. 154 T115. 155 T116. -- 32 of 79 -- [2025] SADC 148 29 Forensic analysis of accused 169 Ms Hearnden agreed that FSSA also received a forensic collection kit (FEC) in relation to the accused numbered No.SE1426. That kit contained: • swabs of the left and right fingernails • swabs of the left and right hand • swabs of the penile shaft area • swabs of the penile glands • combings of the pubic area. 170 Blood and urine samples were also received and were transferred to the toxicology section at FSSA. Amylase 171 The penile glans and penile shaft swabs tested positive for the presence of amylase using a presumptive test for amylase which is present in high levels in saliva, but it is also present in human breast milk and faecal material. Ms Hearnden would not be able to rule out a positive result to substances other than saliva.156 DNA evidence Sample 2.03-01 – Swabs of the accused’s left fingernail 172 In relation to the swabs of the accused’s left fingernail, FSSA obtained a mixed DNA profile comprising two contributors. One of those contributors is assumed to be the accused. Using the reference sample of RS, FSSA obtained a likelihood ratio of 3800 in favour of the hypothesis that RS is a contributor to the DNA profile. Ms Hearnden explained that essentially means they would expect 1 in every 3800 people in the population to produce a similar weighting. This provides an indication of the strength of the DNA evidence.157 Ms Hearnden explained that there is a scale of verbal equivalence for the ratios, ranging from zero support to extremely strong support. This ratio would sit in the very strong range which is the second highest verbal equivalence.158 Sample 2.04-01 – Swabs of the accused’s right fingernails 173 In relation to the swabs of the accused’s right fingernails, a mixed DNA profile with three contributors was obtained. It is assumed that the accused is a contributor. FSSA obtained a likelihood ratio of greater than 100 billion in favour 156 T117-118. 157 T118. 158 T119. -- 33 of 79 -- [2025] SADC 148 30 of the proposition that RS is a contributor. That would sit in the category of likelihood ratio of extremely strong support.159 174 Ms Hearnden explained that the reported statistics are capped at a hundred billion for convenience. 175 Ms Hearnden agreed that when FSSA get these samples, it is common for there to be mixed contributors.160 Sample 2.05-01 – Swabs of the penile shaft of the accused 176 In relation to the swabs of the accused’s penile shaft, there was a mixed DNA profile with three contributors including the accused. The likelihood ratio for RS to be a contributor is greater than 100 billion in favour, which equates to extremely strong support.161 177 The swab of the penile shaft is the same swab on which amylase was detected as present.162 Ms Hearnden explained that this does not necessarily mean that RS’s DNA came from amylase as they cannot attribute the DNA profile to a biological source. Ms Hearnden said that it is possible for DNA from other sources. 178 Ms Hearnden could not comment about the type of transfer. She said that mode of transfer cannot be inferred.163 It is possible that it could be from vaginal mucous and many other scenarios.164 Sample 2.06-01 – Swabs of the accused’s penile glans 179 In relation to the swabs of the accused’s penile glans, there is a mixed DNA profile with two contributors including the accused. Analysis identified extremely strong support for the proposition that RS as a contributor. Ms Hearnden could not comment on mode of transfer, it could be vaginal mucous, it could be saliva.165 Sample 3.02-01 high vaginal swab from RS (epithelial and sperm fractions) 180 The high vaginal swabs taken from RS contained two different sources of DNA. One fraction contained non-sperm cells and the other fraction that contained sperm cells. One is the epithelial fraction (skin cell fraction) and the sperm fraction. Ms Hearnden clarified that and there may be some crossover between the two fractions.166 159 T119. 160 T119. 161 T120. 162 T120. 163 T122. 164 T122. 165 T123. 166 T124. -- 34 of 79 -- [2025] SADC 148 31 181 There was a single-source profile for the epithelial fraction which matched the DNA profile of RS. The analysis produced extremely strong support for RS as the contributor. 182 There was a single-source for the sperm fraction from the high vaginal swab which matched the DNA profile of the accused with the statistic showing extremely strong support for his inclusion as a contributor > 100 billion.167 183 Ms Hearndon could not rule out that some of the DNA from the sperm fraction was also from epithelial cells. However, at least some of the DNA from the sperm fraction was obtained from sperm.168 Sample 3.06-01 – Oral swab from RS 184 The oral swab from RS was not submitted for DNA profiling as the male DNA was below the limit of detection, if it were present at all.169 Sample 3.10-01 – Oral rinse palette from RS 185 The oral rinse pallet from RS was not submitted for DNA profiling as the male DNA was below the limit of detection, if it were present at all.170 186 Ms Hearnden explained that research indicates that DNA does not persist for very long in the oral cavity regardless, but things like eating and drinking, washing one’s mouth, will affect that again.171 Cross-examination 187 Ms Hearnden agreed that the current state of DNA science does not allow her to say how DNA was deposited on an item. She could not say whether it is primary or secondary transfer or something further than that.172 188 Ms Hearnden agreed, with the exception of the evidence that she had given about the sperm fraction of the high vaginal swab, she typically cannot give evidence about the type of cell from which DNA has been deposited in an evidence sample. Ms Hearnden explained that in many instances, FSSA may not even test for biological fluid. In that instance, FSSA would refer to such DNA as ‘trace’ and they cannot determine whether that has come from skin cells alone or saliva, being a rather ubiquitous fluid, on their clothes and on the persons, that could also be a source too.173 189 Ms Hearnden said that with the exception of the presence of whole sperm, it is very difficult to say how long they would expect sperm to persist in the vagina 167 T124. 168 T124. 169 T124. 170 T125. 171 T125. 172 T125. 173 T125. -- 35 of 79 -- [2025] SADC 148 32 or mouth. In this matter, there was whole sperm located on the high and low vaginal swabs and the labial swab.174 There was not whole sperm on the perianal swab. 190 The perianal swabs were not selected for extraction as a result of a triage process about what is most likely to be of assistance.175 They process ones most likely to yield DNA evidence.176 The swabs of the neck and left breast can be put in the same category, they did not proceed to DNA analysis in this case. The scientist doing the analysis at the time made an assessment that those samples were not as probative or interesting to the case as others.177 Contamination 191 Ms Hearnden explained that she was not practiced in taking medical kits. She could only comment on the basic order in which swabs are taken and advised the court to ask the practitioner who undertook the exam. She said that usually the process is outside in, so as a non-expert in the area, she imagined that samples touching targeted areas could happen. If a speculum were to be used, there is potential for transfer to occur.178 Samples 2.03-01 and 2.04-01 (Accused) 192 Ms Hearnden agreed that in relation to the samples from the kit relating to the accused (2.03-01 and 2.04-01) it is not possible to say the source of the foreign DNA under the fingernails. No biological testing was conducted on those.179 Sample 3.02-01 (RS) 193 In relation to the sample from RS’s kit number 3.02-01, the high vaginal swab from RS, Ms Hearnden could not rule out that there could be epithelial cells present in the sperm fraction.180 Presuming that what is seen on the smear is representative of what is on the swab, Ms Hearnden would expect at least part of that DNA profile to come from some of the sperm but some of that DNA could also be from epithelial cells from the sperm donor. She could not separate the two sources. Ms Hearnden explained that it was a single-source profile and by a deduction, FSSA have not detected anyone else’s contribution, male or female.181 Dr Liberty Gallus Examination in chief 194 Dr Gallus is currently employed by SA Local Health Network within the Children’s Assessment Team and with the Child Protection Service. She outlined 174 T125. 175 T126. 176 T126. 177 T126. 178 T127. 179 T127. 180 T128. 181 T128. -- 36 of 79 -- [2025] SADC 148 33 her qualifications. Dr Gallus has worked as a consultant paediatrician since 2004 and has worked in child protection since 2011. She has previously treated approximately 29 children and young people who have been the subject of sexual abuse allegations.182 Process of taking swabs 195 Dr Gallus explained the process of taking forensic samples.183 The forensic medical assessments are undertaken in a separate room which is only used for medicals where forensic samples will be taken. The room is forensically cleaned at a high level after each assessment. She wears gloves throughout the procedure. A forensic kit is supplied that includes sterile drapes on which the swabs are placed. The swabs are taken using a ‘no touch technique’. 196 The swab does not touch anything until it touches the area from where the swab is taken. If taking a high vagina swab, the first surface the swab touches is the high vaginal area. Dr Gallus said if the hymen cannot be fully opened, which can occur when the hymen is very thickened and well oestrogenised, an examination is difficult and the swab may then touch the edge of the hymenal tissue as it passes into the vagina. In adult cases, a speculum is used to open the hymen and the vagina but a speculum is not used in examinations of young people.184 197 Dr Gallus explained that the swab would not touch the outside of the vagina before a high vaginal swab. It may touch the very edge of the hymen as being passed through the hymen into the vagina but it would not touch any other tissues.185 It is possible that the tip of the swab will touch some tissue before it reaches the tissue that is intended to be swabbed – that is only the hymenal tissue.186 Medical examination of RS 198 Dr Gallus was conducted a medical examination of RS the 27 April 2023 between 6:30 pm and 7:00 pm. As part of the assessment, Dr Gallus took a history of events from RS including that there was a penis in her mouth, a penis in her vagina and a finger in her vagina.187 199 Dr Gallus conducted a physical examination including an examination of RS’s skin.188 Dr Gallus took high vaginal, low vaginal and a labial specimens from RS.189 182 T131-132. 183 T131-133. 184 T133. 185 T133. 186 T134. 187 T135. 188 T136. 189 T134. -- 37 of 79 -- [2025] SADC 148 34 200 Dr Gallus described that RS had a 2cm-by-2cm faint purple coloured circular bruise on the lateral aspect of her right thigh or upper leg. Dr Gallus said that the colour of the bruise does not indicate anything about when the bruise occurred and similarly, the circular nature does not indicate the mechanism that might have caused the bruise.190 201 A 3cm long narrow linear abrasion less than 1mm in length was observed on the lateral right upper leg. Dr Gallus said it was quite recent as it had clotted blood on the surface of the wound.191 The time frame of the abrasion was more likely to be days than weeks.192 202 Dr Gallus also conducted a genital examination of RS. That involved a visual inspection of the external genitalia. As part of that process, lateral traction is used to be able see the hymen more clearly. A speculum was not used. Dr Gallus observed that the labia majora and minora appeared healthy and normal.193 203 The interior of the vagina was not seen as the hymenal opening itself was difficult to see.194 The hymen was thickened with overlapping tissue which made it difficult to see the edge of the hymen clearly.195 204 Dr Gallus marked the location and description of the injuries she observed on a body chart of female genitalia, Exhibit P8.196 205 Dr Gallus observed two small abrasions in the posterior fourchette region of the external genitalia which is between the vagina and the anus where the labia minora and labia majora come together. The abrasions were approximately 3-5mm long and approximately 1mm wide with a small amount of bleeding. 206 She had noted that the hymen was difficult to examine, the vaginal opening was not visible and there was no evidence of acute injury such as bruising, bleeding or obvious lacerations, to the hymen.197 207 Dr Gallus said that the lack of injuries does not indicate anything about whether a sexual assault has occurred. The fact that the abrasions were still bleeding indicates that they occurred very recently. Abrasions of this nature would be expected to heal within days.198 208 Dr Gallus explained that injuries in this region would have been caused by trauma from direct friction or lateral traction on the tissue. Dr Gallus agreed that the account that RS gave could account for those injuries. Dr Gallus said that 190 T136. 191 T136. 192 T136. 193 T137. 194 T137. 195 T138. 196 T138. 197 T139. 198 T139. -- 38 of 79 -- [2025] SADC 148 35 trauma would need to be something with force. She explained that the injury could have been caused by wiping a piece of paper towel across the genitals if force was used and if the paper was coarse.199 Dr Gallus could not comment on how much force would be required to cause the injuries.200 209 Dr Gallus agreed that the tissue in that region of the body becomes thinner as oestrogen levels drop. Dr Gallus explained that would be in a woman after she has passed menopause. Dr Gallus agreed that in RS’s stage of life, the tissue is at its healthiest, but it is still more delicate that the skin elsewhere on the body. That tissue is reasonably elastic.201 210 Forensic specimens were taken which included a swab and smear taken from the perianal tissues, labial tissues, low vaginal area and high vaginal area. There were also swabs taken of saliva and there was an oral swab and smear and wet and dry skin swabs from the neck and left breast. A speculum was not used. 202 Cross-examination 211 Dr Gallus agreed that taking a narrative history from the patient provides signs to look out for and potential areas of investigation. Dr Gallus agreed that for that reason, they try to be as accurate as possible. However, they do not read the notes back to the young person and get the young person to check the notes.203 Medical examination 212 Dr Gallus agreed that in her narrative RS had said that she was at a convenience store and that she went in the back to look for someone called AJ. RS said that the worker at the store suggested that she stay and sit on the sofa. Dr Gallus’ notes state that ‘the person asked RS to go into the back room. RS went into the back room. AJ was not there and the man grabbed RS’.204 The notes record ‘when she was pushed onto the couch, there was a hand placed against her upper chest and then around her neck to push her back’. Dr Gallus had specified that strangulation did not take place, RS did not have difficulty breathing, RS did not experience neck pain and she was not hit or scratched.205 Dr Gallus had recorded that after the man grabbed RS, ‘he kissed her face and neck and breast under her bra, he pulled her trousers down and lifted her legs. Touched her vaginal area, put his fingers inside her vagina. Then put his penis inside her vagina. He asked her to wipe herself’. Dr Gallus had then recorded that he put his penis in her mouth. She recorded he did not ejaculate inside and there was no condom.206 She noted ‘penis into mouth, no ejaculate before penile-vaginal’. Dr Gallus explained that RS would have made the comment about the man's penis being placed into her mouth after 199 T139. 200 T140. 201 T140. 202 T140-141. 203 T141. 204 T142. 205 T143. 206 T143-144. -- 39 of 79 -- [2025] SADC 148 36 she had related the earlier incidents, but then indicated to Dr Gallus that that had occurred before. According to RS, there was no lubricant.207 213 Dr Gallus explained that her usual practice is to take swabs starting from the high vaginal region, low vaginal region, labial region and then the perianal swab. Dr Gallus’ notes did not indicate that this is what was done on RS, but that it is the usual way Dr Gallus conducts the examination.208 214 Dr Gallus could not comment on the movement of sperm inside the vaginal canal.209 215 Dr Gallus agreed it was possible that the bleeding occurred because it was a healing wound that was retraumatised.210 216 Dr Gallus agreed that certain medications can predispose people to bleeding or bruising. Dr Gallus was aware of the antidepressant Sertraline, also known as Zoloft. From her general practice, Dr Gallus was not aware whether an increased disposition to bleed or bruise was a known side-effect of that medication.211 217 Dr Gallus explained that the injuries only indicate that trauma has taken place. It does not indicate anything further such as a rape or intercourse.212 Detective Brevet Sergeant Leon Rusak 218 Detective Brevet Sergeant Leon Rusak is stationed at the Eastern District Child and Family Investigation Section. He has been a police officer for 23 years and is the investigating officer in this matter.213 219 On 27 April 2023, Detective Brevet Sergeant Rusak attended Hindley Street Police Station where he obtained some CCTV footage from the Police Security Services Branch city cameras.214 The date and time stamps on the footage are correct. The CCTV recording was tendered as Exhibit P5 along with MFI P9, an aide memoire of the time stamps and accompanying description of what is occurring in the footage. The footage was played during trial. 215 220 On 17 July 2023, Detective Brevet Sergeant Rusak conducted a walk-through of the SA convenience store at 130 Hindley Street. That footage was tendered as Exhibit P11. He adopted the narrative he made during the walkthrough as his evidence.216 207 T144. 208 T144. 209 T144. 210 T145. 211 T145. 212 T146. 213 T146. 214 T147. 215 T148-150. 216 T152. -- 40 of 79 -- [2025] SADC 148 37 221 Police seized items from the convenience store on 27 April 2023. That included: • paper towel seized from the rubbish bin • paper towel found in the back room • a pillow case; and • a Tecno mobile phone. 222 One piece of paper towel was found out by the couch in the back room and three pieces of paper towel were found in the blue bin at the front of the shop behind the counter.217 223 The paper towel found in the rear of the store was seized from the rear room shown in image 023 on page 12 of Exhibit P6. The paper towel can be seen to the right of the base of the fan. 224 On 2 May 2023, Detective Brevet Sergeant Rusak assembled a photographic identification folder (Exhibit P4). The accused’s photograph is in position 6.218 225 Detective Brevet Sergeant Rusak did not have any verbal interactions with the accused as part of the investigation.219 Cross-examination 226 Detective Brevet Sergeant Rusak did not speak to the accused because the arresting officers dealt with the arrest and forensic procedures.220 227 On 27 April 2023, Officer Eglinton noted that RS said she had taken a vape from a man whilst she was in the back of the store. Information provided as part of a briefing was that RS had taken this from the accused. Officer Rusak said he could not speculate that this might be construed as theft.221 Recorded interview with RS 228 Detective Brevet Sergeant Rusak spoke to RS the following day on 28 April 2023 as part of a recorded interview. He was shown his statement dated 17 May 2023 which contains the transcript of the interview with RS.222 229 Detective Brevet Sergeant Rusak asked RS about where she had come from before arriving at the store. RS said that she had been at a different convenience store and had bought a vape there. He asked RS about going back behind the 217 T153. 218 T154. 219 T154. 220 T154. 221 T155. 222 T157. -- 41 of 79 -- [2025] SADC 148 38 counter, he asked her what happened after she went up the step and around the corner. RS replied; I just went into the room and AJ wasn’t there, so I said “AJ’s not here, so I’m just gonna leave”.223 230 DBS Rusak then asked where the accused was at that stage and if he was with her. RS replied; He was, like, yeah, he was coming behind me and then he grabbed me and tried to hug me and kiss me. He was like “You’re so cute”.224 231 RS said; I just pulled my face away and he was like kissing my face and my neck, um, and then he would like lift my shirt up while I was like facing away from the room.225 232 Towards the end of the interview Rusak asked RS about whether the man did anything to try and lubricate her to make sex easier. RS responded no.226 Agreed Facts 233 A statement of agreed facts was tendered as Exhibit P13. The agreed facts principally deal with crime scene examination, including the taking of photographs tendered at trial and the collection, management and security of forensic samples from the accused and the complainant. 234 There were several agreed facts about an examination for the presence of semen on the couch at the rear of the store and a paper towel located in the same area. The agreed facts are;227 4. BS Pickard used a Polilight-Flare Plus 2 to examine the couch (visible in images 019, 020, 021 and 022 of exhibit P1) and the paper towel (visible in images 022, 023, 024 and 025 of exhibit P1) for photoluminescence. 5. No photoluminescence was observed on the couch. There was some photoluminescence observed on the paper towel. 6. Semen shows photoluminescence when exposed to blue light emitted from a Polilight-Flare Plus 2. Other substances or background material may also show photoluminescence under blue light. As such, the results from the Polilight-Flare Plus 2 are only a presumptive indication that semen was present. 7. The inability of the Polilight-Flare Plus 2 to detect any photoluminescence does not necessarily mean that semen is not or was not present. 223 T158 224 T158. 225 T159. 226 T158. 227 Exhibit P13. -- 42 of 79 -- [2025] SADC 148 39 235 Two further agreed facts were read onto transcript; 1. On 27 April 2023, [RS] said to Brevet Sergeant Rhiannon Eglinton words to the effect of 'The man gave me a vape to use and I left with it'.228 2. The accused has no criminal history in any Australian or Pakistan jurisdiction.229 Defence Case Ahmad Raza (the Accused) Examination in chief 236 The accused gave his evidence with the assistance of an interpreter. 237 The accused was born on 7 October 2001. He was 22 years old at the time of giving evidence.230 238 The accused first arrived in Melbourne, Australia and later came to Adelaide arriving on 26 March 2023.231 239 The accused said he started to learn English on 1 March 2022 while he was still in Pakistan. He said he joined a tuition centre for English courses. 240 When he arrived in Adelaide, he first lived in Prospect. He said that after one week, he started working at an SA convenience store. He thought he started working there on 1 April 2023 but was not sure.232 241 The accused said he had been working at the convenience store for three to four weeks before RS came into the store.233 242 The accused said that he knew one other employee at the SA convenience store whose name was Chand Badar. The accused did not know anyone by the name of AJ or Mian. The accused said that for his first two weeks, he worked with Chand Badar. After that, the accused would work alone until another person would arrive at 12.00 pm or 1.00 pm. The accused would then go home. That was the routine.234 Day of alleged offending 243 The day RS came into the store, the accused said he had started work at about 8.00 am. The accused said there were no other workers at the store between 8.00 am and the time RS arrived. He said that there was a flow of customers regularly all day, but there were no other customers in the store when RS arrived. 228 T160.7-10. 229 T212.21-35. 230 T161. 231 T161-162. 232 T162. 233 T163. 234 T163. -- 43 of 79 -- [2025] SADC 148 40 244 When RS arrived he was behind the counter.235 After RS entered the store, she asked about his ‘wellbeing’. She told him that she used to come there often, that she knew the people working there and that she was their friend. RS mentioned the names AJ, Asan and Mian and said they were her friends and that they worked there. The accused said he told RS in English that he was new and that he did not know those people.236 245 The accused said that at some point, RS asked for ten vapes and one packet of cigarettes. The accused could not remember how much the cigarettes cost on that day. Later during examination in chief, the accused recalled that he told RS the cigarettes were $45 per packet. He told her that when she was on the opposite side of the counter.237 The accused said the shop had cigarettes but he did not sell them during his shift.238 He said he had seen vapes in the store but had not seen anyone selling the vapes.239 246 The accused said RS showed her ID card as she came inside the counter. The card was a physical card like a licence.240 The accused said that while RS was showing her ID, she came inside the counter, hugged him and said ‘you don’t have to worry, I used to come here often’. The accused said that he had not asked her to come around the counter at that point. He did not remember RS’s date of birth but said that the ID showed her birthday was 2004.241 247 The accused said that he did not sell RS cigarettes because she did not wait for him to sell her cigarettes, she just came inside the counter, hugged him and went inside. At that point, all she had said was ‘you don’t have to worry, I used to come here often’. 248 The accused said RS then went inside. He said he noticed that customers were coming in so he attended to the customers. After that, the accused said he went inside as well and RS said that she needed cigarettes. She said ‘I used to come here often, don’t worry’. The accused said he told her that his boss would be angry so she had to leave. He said RS responded that he did not need to worry because the people that work there, namely AJ and Asan, were all her friends. The accused said that RS said she wanted vapes and cigarettes but she did not have money. The accused said he realised there was another customer at the counter, so he then attended the customer.242 249 After he attended the customer, he went in the back room and RS stood up and started hugging and touching him. He said; 235 T164. 236 T164. 237 T170. 238 T165. 239 T165. 240 T165. 241 T166. 242 T166. -- 44 of 79 -- [2025] SADC 148 41 …she gave me a hug and I asked her to leave me, but she, she slipped her hands down towards my pant and started removing my pant. While doing this, she sat back on the couch.243 250 RS said ‘if you can get me cigarettes and vapes, I will suck your dick’. He said ‘no I can’t do’ and while he was saying that, she slipped his pants down and started performing an act of fellatio on him. The accused said he pushed RS again, but she pulled him and ‘started sucking his dick’. The accused said he was standing and she was sitting on the edge of the couch. The accused said that by that point, RS had been in the store for 10 to 15 minutes. 244 251 Up until the point that RS first started performing an act of fellatio on him, he had not touched her anywhere on her body. He denied ‘grabbing’ her in the hallway between the counter and the backroom.245 252 RS was ‘sucking his dick’ about one to one and a half minutes. While this was occurring, RS pulled her pants to her knees and lifted her top.246 253 He stopped and left the room when RS was performing an act of fellatio upon him because there were customers outside. That happened once. After he came back RS was asking for the vapes. He agreed he would give them to him (sic) and then he ‘released on her body’. He said that the saliva of her mouth was warm and that is why he could not control himself and he released on her body.247 By ‘release’ he meant ‘ejaculated’. He said that his semen landed on her body. He was not sure but must have been on her upper body and her knees. He was not sure where on her body because he was ‘numb’ by that time. 254 After that, there were paper towels nearby which he used to wipe himself. He said he wiped his penis with the paper towel and then threw it in the bin and went back to the store to attend the customer. The accused said he did not know if RS did anything with the paper towel because he left and went to the counter in the store. He denied that he wiped RS with the paper towel.248 255 When he went back to the counter in the store, he was feeling like he had low energy after ejaculation. RS was still in the back room. When he left the room, RS was sitting on the couch with her pants down and top lifted up. When he went back to the room, at that time she was dressed again.249 RS asked him for the cigarettes and he gave her one and ‘came’ back to the counter. They did not have any other conversation. RS asked him to leave and said that she wanted to take a rest there 243 T167.3-6. 244 T167. 245 T168. 246 T171. 247 T171. 248 T172. 249 T173. -- 45 of 79 -- [2025] SADC 148 42 for a while there. After that RS started smoking a cigarette.250 RS stayed for around 15 minutes after he ejaculated.251 256 RS had already taken three vapes and two cigarettes from him and then she asked for seven more vapes. The accused told her he only had three vapes which ‘you had already taken from me’. RS said that she needed more vapes. He told her that he did not have any more. RS then said ‘give me money then’. RS then took $200 from him.252 257 RS then went back to the back room because customers had come into the store. After the customer left, RS came back into the store again. RS gave him a hug. When he was looking at something else, she put her hand in the cash drawer. He did not know what she took from there. RS immediately left after that.253 RS said she would return with her friends on the weekend and then she left. The accused was afraid that she took a lot of money from the cash drawers. He was then upset and he came after her. He followed her until the main door.254 258 The accused denied putting his penis in RS’s vagina at any point.255 259 He denied putting his fingers on or in RS’s vagina at any point.256 260 He denied that at any point during his interactions with RS that she told him, ‘no’ or to ‘stop’. The accused said that RS started everything.257 261 He denied that at any point RS did anything else to indicate that she did not want to engage in a sexual interaction with him. 262 As far as he was aware, he did not cause any injury to RS’s vagina. 263 He denied touching RS’s vagina. He denied that he invited RS to get medical attention for an injury to her vagina at any point.258 264 He did not realise that she was under 17 years old at any point. She showed her ID to him two or three times.259 265 He did not spit on her vagina at any point.260 250 T173. 251 T173-174. 252 T174. 253 T174. 254 T175. 255 T175. 256 T175. 257 T175. 258 T175. 259 T175. 260 T176. -- 46 of 79 -- [2025] SADC 148 43 Cross-examination 266 The accused was shown the photograph of RS on page 3 of Exhibit P7 and asked about his impression of her age in that photo.261 He maintained that he did not think RS was under 17 years old. The accused said that RS showed her ID to him and said ‘Don’t worry, I’m not under 18’. He denied that she looked much younger than 17 years old in the photo. He denied that he was lying. The accused was asked by the prosecutor why he appeared to have giggled during evidence when giving his answer on that topic, and he responded that he giggled because RS ‘showed him her ID which stated that she is more than that’.262 267 The accused agreed that he thought RS had stolen a lot of money from the cash register. He said this was because when he was looking at something else, RS put her hand in the cash register, and he was not sure what she took from there.263 268 The accused agreed that he did not try to stop RS leaving because when he turned around, she was out of the counter.264 He agreed that he was worried that his boss was going to question him about what happened to the money, but said he was not able to leave the store to go after her because he was worried about leaving the store unattended.265 269 He agreed that he spent time out the back of the store. He said he did not get enough opportunity to have shut to doors to the store because when she hugged him, he lost his senses and he ejaculated. He denied that he was lying about this. He denied that he was lying about seeing RS grab some stuff out of the till. He denied that he was trying to make RS ‘seem bad’.266 He denied that he was doing his best to try and discredit RS. He denied that he was lying about that. He explained that he was not very sure that she had definitely taken some money and was not able to tell his boss because she had just sucked his dick.267 270 The accused agreed that he had given evidence that he had been learning English since 1 March 2022. He agreed that he had learnt English at school before that. He had been to school for 12 years and English was a part of that throughout. He agreed that in April 2023, he understood that if someone said ‘no’, that he could not have sex with them. He agreed that he knows he cannot have sex with children.268 Convenience store duties 271 The accused agreed that he worked in the store alone quite often. He said he would open the store at 8:00 a.m. and around 11:00 a.m. to 12:00 p.m. someone 261 T176. 262 T177. 263 T177. 264 T177. 265 T178. 266 T178. 267 T178-179. 268 T179. -- 47 of 79 -- [2025] SADC 148 44 else would come to take over. He explained that most of the time, customers would collect items, come to the counter, pay and then leave.269 He agreed that his only duties were taking cash at the counter for items selected by customers. He denied that customers ever came in and asked questions about whether he had certain items in stock. 272 The accused agreed that there was a service at the store for money exchange. He said there were two occasions when customers came into the store for that service. He told those customers to come back later when the other worker would be there to help them. He agreed that the money exchange was part of the service provided at the convenience store and he knew that when he took up the job.270 He said that his boss told him that if someone came in the store for currency exchange, to tell them to come back later.271 The accused said that he would tell those customers to come back at 3:00 or 4:00 p.m.272 273 The accused said he did not know how many people worked at the shop. He knew someone named Chand Badar who used to come in the afternoon and take over from him. The accused said he had not had any conversations with the owner of the business. He then said he spoke to the owner once when he first came here.273 The accused said that for his first week, there was another worker attending with the accused to open the store. After one week, the accused was given the keys and was asked to open the store and amongst other duties, clean and stock drinks in the fridge. He said that Chand Badar explained all his duties to him. 274 The accused agreed that he had only ever had one conversation with the owner of the convenience store. The accused said he tried to contact the owner once to inform him that he was ‘in this trouble’ and his boss said he would call the accused back after 15 minutes but he never did.274 275 It was put to the accused that he was lying when he had said that the only worker he knew was Chand Badar. The accused explained that he said that because it was only Chand Badar who he knew who would explain things to him. He denied that he knew someone called AJ.275 Cigarettes 276 The accused said when RS entered the shop on 23 April she asked about his ‘wellbeing’, said she knew AJ, Asan and Mian, that they were her friends and she would come there often. RS then asked for 10 vapes and cigarettes. The accused said he told her the cigarettes were $45. RS then showed him her ID and came inside the counter. 269 T179. 270 T180. 271 T180-181. 272 T181. 273 T181. 274 T181. 275 T183. -- 48 of 79 -- [2025] SADC 148 45 277 Although the accused stated earlier in evidence that he did not remember saying the cigarettes were $45 he later said he did remember telling RS the price was $45 and said he might have ‘missed to say this’.276 The accused said he did not mention the price earlier because the price of the cigarettes varies whereby some are $30, $45 or $40. He said after the Court lunch break, he was able to recall that RS asked for the particular cigarette brand ‘JPS’ and he was able to recall that a packet was $45. He said RS told him that she only smoked that brand. He agreed that he had said none of that in his earlier evidence. He explained that he did not say it because he was not asked about the brand.277 278 The accused agreed that the store sold vapes. The accused said Chand Badar told him that he would look after the items behind the counter and that the accused just needed to sell the things outside the counter such as drinks.278 279 In reference to Exhibit P1, page 7, the accused agreed that at the bottom of the picture, it appears as though there are packets of cigarette rolling papers and filters behind the counter. He agreed these were things Chand Badar told him he could not sell. The accused said Chand Badar told him ‘If somebody demand a cigarette, you can give, otherwise you need not to bother about all these things, I will handle’. He then agreed that was not quite right.279 He said Chand Badar told him ‘You don’t need to struggle a lot for these things which you don’t understand because you are new so, if you understand something, that’s fine, otherwise I will manage’. The accused explained where the vapes were located in reference to that Exhibit P1, photograph 8, by pointing to the black cigarette cabinet.280 Interactions with RS 280 The accused denied that RS did not show him an ID card.281 He said she showed him the ID card when she came inside the counter and hugged him.282 He agreed he said to her ‘you’re not allowed round here. You should leave’. When he said this, RS replied ‘You don’t have to worry. I used to come here often and I know everyone here’. He said RS then went in the back room. The accused said he told RS to stop two to three times, but RS insisted, saying ‘I know everyone here and I can go inside’. It was put to the accused that up until then, he had not given evidence that he tried to stop RS ‘two or three times’.283 The accused said he did say it before and said it to his lawyer. 276 T183. 277 T184. 278 T185. 279 T185. 280 T186. 281 T186. 282 T186-187. 283 T187. -- 49 of 79 -- [2025] SADC 148 46 281 The accused agreed that he did not call his boss and ask who RS was. He agreed he did not call Chand Badar and ask what was going on with RS and whether she was allowed behind the counter. Hugging incident 282 The accused said that when RS hugged him, she was behaving very friendly. He said about five to six minutes had passed between RS arriving in the store and when she hugged him.284 He agreed that he was behind the counter for most of that time. He agreed it is only when RS came behind the counter that she hugged him. That initially made him feel uncomfortable and he asked her to step back. He said he did not try to physically stop RS from hugging him because he thought that it may be a normal thing to happen and because she was telling him the names of the people she knew there. 283 The accused agreed that in the three weeks he had been working there, no other children had come around and hugged him, but he thought it was normal when RS did it because she gave him the names of all the men there and said she visited often so he did not have to worry. He said in his short experience here he has seen people hug when they meet and introduce themselves. He agreed these were names of people that he did not know. He said that he did not want to risk his job so he thought that if RS knew many people there, then it would be fine. Back room 284 The accused said that RS then went in the back and he followed her. He asked her to leave a couple of times but she did not leave. He thought if he insisted and asked her to leave again that it may risk his job. This was because RS had listed the names of people that he did not know. RS had mentioned the name Subhani, who she said was the owner of the store and that she knew him very well so ‘you let me stay here’.285 It was put to the accused that he had not mentioned that name earlier in evidence. He said that she had mentioned names of ‘many people’ and he could not remember them. He said it was because he had said she asked for a cigarette, and he gave her a cigarette. He denied making his evidence up as he went along.286 Sequence 285 When both he and RS were in the back room he first gave her a cigarette. RS was then sitting on the couch when a customer came in and he went out to attend to the customer. When he returned, RS stood up and hugged him and said that she needed vapes.287 RS said ‘I am not under 18’, showed him her ID again and said ‘I don’t have money but I need vapes and if you give it to me I will romance with you’. RS said ‘I will put your penis in my mouth’ while she was hugging him. 284 T187. 285 T189-190. 286 T190. 287 T190. -- 50 of 79 -- [2025] SADC 148 47 While hugging him she slid her hands to his pants and removed his pants. He said she took his penis in her hand and then she sat on the couch.288 286 It was put to the accused that he did not mention that RS said she would suck his penis when he gave his first account. The accused responded ‘yes’.289 The accused repeated that first RS slid her hands towards his pants, removed his pants and held his penis. He said she then sat down and said ‘I will suck your penis’.290 287 It was put to the accused that earlier in his evidence, he had not mentioned that RS showed her ID a second time. The accused said he did say that in evidence. The accused said RS showed her ID when she got inside the counter and in the back room when he asked her to leave and said ‘I know people here and this is my ID’.291 288 He said that after that RS slid her hands to his pants and held his penis. He said he did not stop her because she asked for the vapes so when she hugged him, he said ‘I started behaving weird and I agreed for everything’. The accused said he initially did not want that to happen, but when he came back into the back room and RS showed her ID and hugged him, he agreed.292 289 The accused agreed he gave evidence that he did not want to leave the store when he thought RS had robbed it. It was put to the accused that he was happy to stay out the back while RS performed an act of fellatio on him. The accused said ‘when she started seducing me and then she started sucking so it didn’t – it was just a matter of 90 seconds so I lost my senses at that time for a short while’.293 290 The accused said that the point at which he started wanting the act of fellatio to happen was when RS held his penis in her hand. During that process, he said RS was also asking for vapes. He explained that first, RS held his penis in her hand, then she touched his penis in her mouth and then she stepped back a little bit and at that point of time he agreed and said ‘Yeah, we can do it’.294 It was at the point after his penis had been in her mouth that he decided he wanted it to happen. Initially when he was at the counter, he did not agree because he said he ‘had some skin issues on my legs as well’ but after that, ‘when all this happened’ then he agreed.295 291 When RS hugged him, after giving a hug she then held his penis in her hand and at that time, he was ready for the oral sex to occur. He was asked why he said in evidence that after RS put his penis in her mouth, he pushed her away, he said he did not push her, that RS held his penis, touched his penis to her mouth and she 288 T191. 289 T191. 290 T191. 291 T191. 292 T192. 293 T192-193. 294 T193. 295 T193. -- 51 of 79 -- [2025] SADC 148 48 stepped a little bit back and then he was ready. He maintained that he did not push her away. He denied that his story kept changing.296 292 He agreed that he said RS started removing some of her clothes when she was sitting down and once she had started performing an act of fellatio. He was asked whether he was expecting there might be something other than fellatio and he said it was not like that initially because after 1 minute or 90 seconds, he ejaculated and then he did not have enough energy and went back to the counter.297 293 He agreed that he had given evidence earlier that RS started performing an act of fellatio and that went for about 30 seconds to a minute. He said that RS first held his penis in her hand then touched it to her mouth. At that time a customer arrived so he attended to the customer. He said that in this time, he was ready to go ahead and then when he came back to the back room, RS started performing fellatio on him.298 The accused added that initially when RS held his penis in her hand, she touched his penis to her mouth but did not put it inside her mouth. When she sat on the couch and before he went out to the counter, RS did not place his penis in her mouth. He said RS hugged him, sat down, touched his penis and in the meantime the customer arrived so he went out. He agreed that before the customer arrived, she had not put his penis in her mouth. He said that she sucked his penis for 90 seconds after he went to the counter. He denied that he kept changing his story.299 He denied that he kept changing his story because he was lying.300 294 He said he was erect at the time RS touched his penis with her hand and then brought it to her mouth. He agreed he then went out the front of the shop and served a customer. He was not sure if his penis was still erect at that point in time. He was not sure if it was fully erect.301 He was asked again whether his penis was erect at the point that RS touched his penis to her mouth. He said he was not sure if it was fully erect. He said initially when RS started performing fellatio it was erect. He again denied that he kept changing his story.302 295 The accused agreed that he ejaculated.303 He said that when RS was performing fellatio on him, her mouth was warm so he could not control any ejaculation. He said ejaculation started happening at the time his penis was in her mouth but he did not ejaculate in her mouth because he moved back a little and ejaculated on her body.304 This was after he returned from the counter having served the customer.305 296 T194. 297 T194. 298 T195. 299 T195. 300 T196. 301 T196. 302 T197. 303 T197. 304 T197. 305 T197. -- 52 of 79 -- [2025] SADC 148 49 296 He agreed that his penis exited RS’s mouth and instantly he ejaculated. He agreed that he was not sure where he ejaculated on her body as he was ‘numb’ at that stage. He agreed that if it happened almost instantly, it could have been on the top half of her body. At the point he ejaculated, RS was sitting on the couch. He said initially she was bent forward but when he was ejaculating, she was sitting back against the back of the couch with her bottom still on the seat of the couch.306 He was not sure where the ejaculate ended up but he was sure he ejaculated on her body because she was sitting in front of him. 297 He said he then cleaned with a towel and went back to the counter. He was not sure how many pieces of paper towel he used.307 He threw the towels he used in a bin which was beside the counter.308 298 The accused said that when RS was performing fellatio on him, her feet were on the floor. After that, she moved back. She was moving a lot after that so he was not sure whether her feet were on the ground or the couch.309 Post sexual interaction 299 After cleaning with the paper towels he came back to the counter and after two to four minutes, RS followed him to the counter and asked for a second cigarette. He got the cigarette from the counter. He said there were mostly open packets of cigarettes at the counter because Chand Badar and his friends came in the evening and would have cigarettes and leave them there. He said the cigarettes were under the counter where he would normally stand, near his chair.310 300 He had given RS a cigarette and three vapes. He said he got the vapes from the black drawers. He said one was open underneath the counter and he took two from the drawer. 301 He agreed that Chand Badar had told him not to do anything with the vapes.311 He said he was going to tell Chand Badar that he had taken the vapes.312 302 The accused said RS had asked for 10 vapes, but he gave her only three and he told RS he did not have any more vapes. He gave RS $200. He took part of the money from his wallet and the rest, about $60-$80, from the counter. He intended to pay back the money from his own pocket and would tell his boss. He did not have any more money in his pocket and that is why he took from the till.313 He said he was only a trainee at the time so he used to get paid every day for his work in 306 T198-199. 307 T199. 308 T200. 309 T200. 310 T200. 311 T201. 312 T201. 313 T202. -- 53 of 79 -- [2025] SADC 148 50 amounts such as $40, $50 or $60 for his services and that is how he was going to pay it back. He denied that this was all a lie.314 303 He denied that he told RS when she first came to the counter that she was cute. He did not think she was cute at all. He denied that he was sexually attracted to her. He agreed he ejaculated from her giving him oral sex. He said ‘when she came and did all this, she hugged me, after that, I was attracted, yes’. He denied that as RS made her way to the back room he was touching her sexually. He denied that before the oral sex there was some sexual touching. He denied that as he was going to the back room he touched her on the breast.315 He denied that he said ‘I want a fuck, you’re so cute’. He denied that RS said ‘no’ to this proposition. He agreed that if RS had said no he would have understood that that means he cannot do anything with her.316 304 He was not sure whether when he ejaculated, some of the ejaculate went on the couch.317 305 He denied he asked RS for oral sex. He denied that he came back from the counter, asked her for oral sex and she said ‘no’, ‘no, I have a train to catch’ and despite that he pulled her pants down.318 He said he did not touch her pants at all.319 He denied moving her head towards his penis even though RS was saying ‘no’. He denied that there was oral sex that lasted about two to three minutes but he did not ejaculate. 306 He denied that he came back from the counter and asked RS for sex and RS said ‘no, it’s gonna hurt and I don’t want to’. He denied that despite RS saying ‘no’, he lifted her legs, put them around his waist and pulled her pants down. He denied inserting his penis into her vagina and thrusting knowing RS was not consenting. He denied ejaculating while his penis was in her vagina.320 307 The accused denied that he put his finger in RS’ vagina.321 He denied that RS had said ‘no’ but he did it anyway. He denied that he knew she was not consenting and still put his finger in her vagina. He denied that he stopped because he noticed blood coming from her vagina. He denied that he wiped her vagina with paper towel and denied that he got her to wipe her vagina with paper towel. He denied that he caused the bleeding to RS’ vagina. He said he did not know about that.322 308 The accused said he watched RS leave out of the shop down Hindley Street because he was worried. He said he had a doubt that she took money from the cash 314 T203. 315 T203. 316 T204. 317 T204. 318 T204. 319 T205. 320 T205. 321 T205-206. 322 T206. -- 54 of 79 -- [2025] SADC 148 51 register or the counter. He said he did not call police or the store owner. He said he intended to tell Chand Badar, but he did not tell him.323 Alleged transaction 309 The accused explained that he gave RS money because RS was initially asking for 10 vapes and he did not have 10 vapes, so he paid her money. He said RS had said ‘If you don’t have enough vapes, then you can give me money’. He thought he needed to give her something, be that vapes or money, because before performing fellatio, RS had said ‘you give me 10 vapes and I will suck your penis’. He was asked whether he thought he had entered into a bargain with RS. He said he could not say if he had entered into a bargain with RS for sex for vapes. He did not know exactly what it was, but he said it was a kind of trade. He said it happened so quickly and after all this, he wanted RS to leave as soon as possible because he was not ‘in very good energy at that point of time after ejaculation’.324 310 He denied that he gave RS money to get rid of her. He said RS wanted to stay there for longer and then after RS came outside, she said ‘you give me the money, I leave’ so he gave her money.325 Re-examination 311 The accused said that the man who gave him the job is from Pakistan. 312 The accused agreed that on the day of the alleged offending, he was familiar with the word ‘cute’ in the English language. He said to him it is simply a word. He said it is used a lot of time such as ‘cute mum, cute cat, cute dog’. He said he used the word a lot of times in Pakistan also.326 Consideration and Findings Assessment of witnesses RS, the complainant 313 RS remained composed and gave her evidence in a very matter of fact manner. She did not engage in histrionics and did not appear to embellish her evidence. Her evidence to some extent lacked detail and consistency, particularly in relation to the sequence of events prior to the alleged sexual assaults. 314 RS was frank about aspects of her past behaviour and her behaviour on the day of the alleged offences which tended to show her in a poor light. She volunteered that she had engaged in sexual acts with staff on previous occasions at convenience stores in exchange for such things such as vapes, alcohol and drugs at the same premises. She acknowledged her use of drugs generally. She acknowledged that she believed it was justifiable to steal from individuals who had 323 T206. 324 T208. 325 T209. 326 T209. -- 55 of 79 -- [2025] SADC 148 52 behaved badly. The evidence on these matters was honest and forthright, despite it being against her interests and which exposed her to criticism. 315 I have taken into account her age and personal circumstances when assessing her evidence. 316 I have considered the criticisms made by counsel for the defence of RS as a witness. 317 Defence counsel submitted that RS ‘is far less likely’ to be reliable because she had ‘serious mental health problems’ at the time of the alleged offending and engaged in risky behaviour. The submission comprises two propositions. First, RS had serious mental health issues which affected her credibility and reliability. Secondly, that she engaged in risky behaviour associated with her mental health issues which also affected her credibility and reliability. 318 The evidence discloses that RS had a depressive illness and was prescribed medication for that condition. RS’s use of medication to manage her condition was irregular and based on her subjectively-assessed symptoms. There was no evidence that her memory was affected by either the condition or the medication. There was no evidence that the condition or the medication causes the patient to imagine events or makes them prone to fabrication. 319 I do not consider that RS’s depressive condition or the medication used to manage the condition adversely affected her credibility and reliability as a witness. 320 The behaviour of RS involving engaging in consensual sex in exchange for cigarettes, vapes, alcohol, drugs and money is relevant to the assessment of her evidence. In undertaking that assessment, I acknowledge and accept that a person is not to be regarded as having consented to sexual activity merely because the person had on that, or some other occasion, freely and voluntarily agree to sexual activity with another person. 321 In this case that assessment takes on greater significance because the sexual activity in which RS had previously engaged is similar to the circumstances alleged in this case. It is relevant to the assessment of the credibility and reliability of RS despite her forthright admissions to such behaviour, particularly because her evidence disclosed that she did not wish to be seen by others on this occasion as prostituting herself. 322 The inconsistency and vagueness in her evidence to which defence counsel drew attention (about whether she had purchased a vape before attending the third convenience store) was peripheral and of little consequence when assessing the likelihood or inherent likelihood of the account given by RS. Similarly, I do not consider important that in her evidence RS said that she had first asked for a cigarette despite her addiction to vapes. -- 56 of 79 -- [2025] SADC 148 53 323 Counsel for defence submitted that it is implausible that a child, faced with a sexual assault, namely being touched on the breasts in the hallway by man who says that ‘he wants to fuck her’, would react by taking a cigarette from him and sit in the back room while he attended to customers, when she had the alternative option which was to run away. 324 The submission that the explanation is ‘implausible’ overlooks the fact that RS was accustomed to sexualised behaviour by staff at convenience stores. What would be seen as confronting and even frightening may at that stage of her interaction with the accused have been relatively ordinary in her experience and something she could handle. I consider that her evidence about remaining in the store at that stage of the incident was not implausible. 325 However, the decision made by RS to remain thereafter throughout the incident sitting on the couch without exploring the opportunity to leave, was troubling. 326 The explanation for remaining despite the conduct of the accused, namely that she did not want to be seen as prostituting herself or to be seen as a ‘slut’, was not compelling. RS acknowledged, the prospect of being seen as a prostitute was a lesser evil than being raped. It follows that she considered leaving was a more important factor than possible damage to her reputation among strangers. If that is so one might reasonably expect in her situation, as she understood it, that she would try to leave rather than expose herself to the risk of being raped. The decision to stay directly raises questions about RS’s reasons for not leaving or attempting to leave, including the possibility that she was engaging in consensual sexual conduct. 327 I have considered defence counsel’s submission that the version of events given by RS whereby she said the accused suggested to her that AJ was asleep in the rear room lacks credibility because ‘it involves the accused who is a complete stranger … setting a trap which can only be for the purpose of raping her’. 328 I do not consider that the version of RS on this point is inherently unlikely. It does not follow from her account that the accused formed an intention to ‘rape’ her when she first entered the store as opposed to at some later stage. 329 The proposition by defence counsel relies on the premise that there is no explanation reasonably open for the alleged deception other than the accused luring RS to the rear room within moments of meeting her, with the intention of committing a serious sexual offence against RS. 330 I accept that one would not expect as a matter of human experience that a person would form and act on an intention to rape another person within moments of first meeting that person by chance. However, that is not the only reason the accused may have made such a false statement. It is at least equally consistent with an intention on the part of the accused at that point, to create an opportunity to -- 57 of 79 -- [2025] SADC 148 54 have consensual sex with RS. It is consistent with human experience that commonly some people quickly develop a sexual attraction or interest in another person and pursue that interest when the opportunity arises. 331 On her account RS said that the accused, at around the same time, said that she was ‘cute’ and suggested to her that they engage in sex. On her account the accused also touched her on the breasts through her clothing. The complainant’s version indicates that the accused openly expressed an attraction to her appearance and a desire to engage in sex with her. On the version of RS, the accused was making his intentions or at least desires plain; he was interested in and actively pursuing sex with RS. 332 On the version given by RS, the accused’s suggestion that AJ was in the rear room was consistent with the accused creating a pretext for her to go to the rear of the store, creating an opportunity for him to persuade her to engage in consensual sex. This was reasonably open on RS’s account. When viewed in this way RS’s version cannot be simply regarded as inherently unlikely. 333 Defence counsel submitted that the accused, imbued with the timidity of a new arrival, was unlikely to be an exception to the proposition that it is unlikely that a person would lay a trap to sexually assault someone they have seen for the first time when there is a risk of detection. There is no evidence that new arrivals to this country are timid. The proposition strikes me as stereotypical thinking at best. In any event, the accused’s subsequent admitted behaviour hardly speaks of a timid individual, having engaged in oral sex with a stranger in the rear of a city convenience store in the middle of the day, even if it was at the complainant’s solicitation. 334 Defence counsel submitted that an understanding of human nature renders the account given by RS inherently unlikely because of the risk of detection by customers, or the complainant reporting the assault. The risk of detection is a factor which must be considered when assessing the likelihood of the accused engaging in such conduct. However, human experience informs us that people engage in sexual activity, including sexual assaults, in a wide variety of circumstances and are prepared to take the risk of being seen or observed by others. Sexual activity in inappropriate places or circumstances does occur. Offences of sexual assault do occur despite the risk of detection and the risk that the victim will report the offending. 335 The likelihood that sexual activity occurred despite the risk of detection must be assessed in all the circumstances of the case. A relevant circumstance in this case is the accused did, on his version of events, engage in consensual sexual activity with RS at the rear of the convenience store despite the risk of detection by customers and potentially his employer. On the accused’s version, RS was not permitted to be in the rear room of the store and he was concerned that his employer might become aware if he allowed her to enter the area. The accused was prepared to engage in the sexual conduct with RS, despite the risk of detection and -- 58 of 79 -- [2025] SADC 148 55 the accused’s admitted concerns about the potential consequences to his employment. 336 I accept that quite different considerations apply to an assessment of the likelihood of the accused engaging in unlawful sexual conduct, including non- consensual sexual conduct, despite the risk of detection. This is a matter I will return to later in these reasons. 337 Defence counsel drew attention to several apparent inconsistencies between the evidence of RS and prior statements made by her outside of court to support the submission that she lacks credibility and reliability. 338 Counsel referred to apparent inconsistencies between the evidence of RS and the narrative she gave Dr Gallus on the day of the offence. It was submitted that the inconsistencies involve; • no report being made to Dr Gallus that the accused sexually touched her before she was in the rear room of the convenience store, • the order in which RS described the sexual acts to Dr Gallus namely digital penetration of the vagina, penile penetration of the vagina and fellatio as opposed to the order in which she now says in evidence these things occurred, • the fact that RS reported to Dr Gallus that the accused did not use lubricant, despite her evidence that the accused spat on her vagina; which was in answer to a question by Detective Rusak when RS provided a statement about whether the accused did anything to try and lubricate her to make sex easier. 339 In assessing the inconsistencies and the degree to which the inconsistencies bear upon the credibility and reliability of RS, I am mindful of the evidence of Dr Gallus. She agreed that the narrative history provided by the complainant is an important part of the examination because it provides the signs to look out for and the potential areas of investigation and that she tries to obtain a correct account as best she can. I bear in mind her evidence that she focuses on determining which areas of the physical examination to focus on rather than necessarily defining exactly what happened to the young person. Dr Gallus said she considers that to be the role of the police rather than her as the medical professional. She said that she was aware that she may be required to give evidence and agreed for that reason she tries to be as accurate as possible about what she is told. 327 340 The notes taken by Dr Gallus of RS’s account was that the accused asked her to go into the back room and that it was there that the man grabbed her. Dr Gallus’s notes then record that the man pushed her onto the couch, placed a hand against upper chest and around her neck, he then kissed her face, neck and breast under 327 T141. -- 59 of 79 -- [2025] SADC 148 56 her bra, pulled her trousers down and lifted her legs, touched her vaginal area, put his fingers inside her vagina then put his penis inside her vagina and then asked her to wipe herself. Dr Gallus’s notes then record that he put his penis in her mouth and that he did not ejaculate inside before engaging in penile vagina or sex. 341 Dr Gallus said that the notes she took indicate a different order of events than appear in her written report. Dr Gallus said that what would have happened is that RS made the comment about the man’s penis being placed into her mouth after she had related the earlier incidents, but then indicated to Dr Gallus that the penis in the mouth incident had occurred before. 342 The first apparent inconsistency identified by defence counsel was that RS had told Dr Gallus that the accused grabbed her when they were in the rear room. There was no reference to the alleged touching which RS said in evidence occurred in the store itself, including touching on the breasts while making her way to the rear room. It was submitted that this inconsistency is not trifling because it bears on the whole of RS’s account which is predicated on the accused developing a plan to assault RS when he first meets her and acting on that plan within seconds. It is suggested that therefore the account given to Dr Gallus, of first physical contact occurring in the rear room, was more likely because it is more consistent with the likelihood that it was not until they were in the rear room that there was any sexual touching between RS and the accused. 343 I will make several observations in relation to the apparent inconsistencies. Dr Gallus was careful to explain that the narrative of the alleged assault was taken by her to assist in properly conducting a medical examination. It was not for the purpose of taking a complete witness statement for court. 344 In those circumstances it might be expected that background details or some of the events leading up to the alleged sexual assault may not have been touched upon in the narrative or in questions asked by Dr Gallus. It is unsurprising therefore that there is no mention of physical contact prior to the alleged sexual assault. 345 It is to be noted also that the notes taken by Dr Gallus of the narrative provided by RS were not shown to RS, who therefore had no opportunity to correct or adopt the contents. 346 I relation to the defence submission that the account noted by Dr Gallus, which does not include touching before entering the rear room, supports the inherent unlikelihood that the accused formed an intention to sexually assault RS when he first met her, I repeat the earlier observation that it does not follow that the version given by RS, if accepted, must mean that the accused formed an intention to sexually assault RS in the rear room almost immediately after she entered the store and it is therefore inherently unlikely. 347 While the omission of any mention of the physical contact before entering the rear room should not be ignored, having regard to my observations, I place -- 60 of 79 -- [2025] SADC 148 57 limited weight on the inconsistency when assessing the credibility and reliability of RS. 348 The asserted inconsistency between the sequence of sexual acts recorded in the notes of Dr Gallus from the narrative provided by RS and the account given by RS in evidence was corrected by Dr Gallus in her report when it became apparent during the course of the narrative that the act of fellatio occurred before the digital and penile penetration. The sequence as corrected became apparent when RS explained that ejaculation had not occurred until after the act of fellatio. 349 In my view it would be unreasonable to view the sequence of the narrative insofar as it relates to the act of fellatio, as inconsistent with her evidence given the circumstances in which the narrative was given, as discussed above, and the prompt correction which emerged from the same narrative. 350 I considered that the apparent inconsistency in this respect is of no or negligible weight in assessing the credibility and reliability of RS. 351 There remains, however, an inconsistency between the narrative recorded by Dr Gallus with respect to the sequence of the sexual acts of penile penetration and vaginal penetration. That inconsistency was not corrected during the course of the narrative given by RS to Dr Gallus. The inconsistency in that aspect of the narrative may be explained by the fact that there was nothing said that might have alerted to Dr Gallus that the sequence of those events was incorrect. 352 The inconsistency in the account of RS about the sequence of the digital penetration and the penile penetration is a matter which does bear upon the assessment of the credibility and reliability of RS. However, having regard to the circumstances and context in which the narrative was given and recorded, it is of minor significance in the assessment of the credibility or reliability of RS. 353 The statement by RS to Dr Gallus that the accused did not use a lubricant is inconsistent with her evidence that he spat on her vagina before engaging in penile vaginal intercourse. In re-examination RS said that her understanding of the word ‘lubricant’ was that it referred to ‘Lube for a condom’. When asked what lube is, RS replied, ‘It’s like a gel you buy in a store.’328 Detective Rusak in his evidence confirmed that when asked if the accused did anything to try and lubricate RS to make sex easier she replied, ‘No’. 354 I consider the explanation given by RS in re-examination of her understanding of the term ‘lubricant’ adequately explains why she told Dr Gallus that the accused did not use a lubricant. Her evidence was in effect that ‘lubricant’ referred to a commercially produced product in the form of a gel specifically used in sex involving a condom. In those circumstances I consider the asserted inconsistency between her answer to the question from Dr Gallus and her evidence 328 T103. -- 61 of 79 -- [2025] SADC 148 58 that the accused spat on her vagina before sex did not undermine RS’s credibility or reliability. 355 RS’s answer to the question from Detective Rusak that the accused did not do anything to lubricate her to make sex easier requires greater scrutiny given her evidence that the accused spat on her vagina. However, I do not consider the inconsistency to be significant and it did not in my view substantially undermine the credibility or reliability of RS. The topic of the question was a matter of a relatively minor detail in a long interview and something that might have been easily overlooked by RS, particularly given the nature and character of the lubrication allegedly used by the accused and the complainant’s evidence about her understanding of lubricant. 356 Defence counsel submitted it is improbable that RS, after being sexually assaulted in the hallway while making her way to the rear room by man who said he wants to fuck her, would then take a cigarette from him and smoke it in the rear room after having been left alone. It was submitted that it is implausible that a child in those circumstances would stay, when she had the option to run away. 357 Defence counsel was critical of the explanation offered by RS for not leaving at that point. RS said she did not want to be seen as one of those girls who hangs around such places and prostitutes themselves and she was frightened. Defence counsel said that RS could not have seriously thought that a member of the public would think she was there prostituting herself. Counsel submitted this was not a worse prospect than the prospect of being raped, and does not make any sense at all. 358 Those submissions rely, at least in part, on the proposition that RS could not have thought that members of the public would perceive her as behaving improperly or prostituting itself. In her evidence on the issue about not wanting to be seen in a particular way RS explained; Well, I was very scared and a lot of the people that go to these convenience stores in Hindley Street, I understand how they move and operate and I did not - I did not want to be seen in that way.329 359 RS then explained her answer further; Well, young girls like myself coming in, selling themselves or being taken advantage of for drugs and alcohol or because of the word ‘slut’.330 360 Having regard to all her evidence I accept that RS did perceive that people would see her in the way she described in this passage, because it was behaviour in which she had previously engaged in recent months. It is in my view not at all surprising that a 15-year-old engaging in what are clearly unlawful and otherwise unacceptable acts by ordinary standards, would be very sensitive to any perceived 329 T21. 330 T21. -- 62 of 79 -- [2025] SADC 148 59 risk of exposure, however remote that risk might be objectively. More so, because engaging in the conduct was relatively new to her and one might expect her to feel a sense of shame or guilt. 361 In the context of the evidence of RS about not leaving once the sexual assault began and after the accused left the room to attend to customers, defence counsel acknowledged that the reactions of ‘shock’ and ‘fear’ certainly make sense. However, counsel maintained that not leaving for fear that she would be perceived as a prostitute ‘makes no sense’.331 362 Even if, at that point in time, RS thought she might be raped and was in fear, I remind myself that victims of sexual assault respond and react to that situation in various ways. There is no ‘normal’ response to an abnormal and confronting situation in which a victim finds themselves. A third party assessing the situation in hindsight might well think that flight was the best option at that point in time, but that may not reflect the ‘reality’ from the victim’s perspective. 363 Defence counsel was critical of the evidence of RS about the timing of the attempted text message to her carer. It was said that she gave evidence during examination in chief that she sent a text message after she had performed fellatio on the accused. When RS was cross examined, she could not recall what she had said in evidence, and she could not recall what she had said about this issue in an affidavit signed in the previous week. It was submitted that this demonstrates her unreliability. It was said that her unreliability ‘gives the lie to her account thus far as to how she found herself in those circumstances’.332 364 The objective evidence discloses that RS attempted to send the two text messages to her carer’s phone about 21 minutes after she first entered the convenience store and about 11 minutes before she left the store. It cannot be said that her evidence that she tried to communicate with her carer is unreliable. The messages were recovered from her phone and there is no dispute that the messages were drafted and ‘sent’. In my view, in terms of the credibility and reliability of RS, very little turns on her inability to accurately establish when she attempted to send the messages, and her prevarication about when and at which stage of the alleged assaults she attempted to text her carer during the incident when she was, on her evidence, in fear. 365 Defence counsel made extensive submissions about the issue of consent to sexual intercourse including the act of fellatio based on her account of the incidents and in the context of the sexual history and behaviour of RS who was said to be prostituting herself. I will deal with this issue when I consider the issue of consent in the context of the alleged sexual intercourse the subject of Counts 2 and 4. 366 I found RS generally to have been a truthful and reliable witness on most issues. Later in these reasons I will consider the credibility of RS on the specific 331 T234. 332 T237. -- 63 of 79 -- [2025] SADC 148 60 issue of whether she consented to engage in fellatio with the accused and the implication of findings on that question to her evidence more generally. 367 In conclusion, although there were shortcomings in the accuracy of the evidence of RS, I found her to be generally reliable on key issues. AS and KH (RS’s carers) 368 I found AS and KH to be credible and reliable witnesses. Dr Liberty Gallus 369 Dr Liberty Gallus was a credible and reliable expert witness who through her evidence demonstrated a high degree of proficiency in her field of expertise. Dr Gallus exhibited a highly professional approach in her evidence and did her best to assist the court in examination in chief and under cross-examination. There was no trace of bias in her evidence. Her evidence was reconcilable and consistent with evidence which I accept. Ms Phillippa Hearnden 370 Ms Phillippa Hearnden was a credible, reliable and competent expert witness. In her evidence Ms Hearnden attempted to provide every assistance to the court and the parties. There was no indication of any bias in her evidence. Ahmad Raza 371 The accused had the assistance of an interpreter when giving evidence. He was frequently able to competently answer questions without the assistance of the interpreter. The accused appeared to be sufficiently competent in English to clarify or correct the interpreter from time to time. 372 The accused did however appear to suffer some disadvantage when answering questions, particularly in cross-examination. I have made allowance for the difficulties experienced by the accused in giving evidence when his first language is not English and his reliance on an interpreter when giving evidence. 373 I found the evidence of the accused to be inconsistent as between examination in chief and cross-examination about the sequence of events involving the act of fellatio. In his evidence in chief the accused said that he and RS were in the rear room. He told her to leave because his boss would be angry. RS said ‘don’t worry the people who work here are my friends’. The accused said RS told him that she wanted vapes and cigarettes, but she did not have any money. He then left to serve a customer.333 374 After he returned to the room, RS offered to perform fellatio on him if he gave her cigarettes and vapes. The accused said; 333 T166. -- 64 of 79 -- [2025] SADC 148 61 I went inside again and went I went back in the room, then she stood up and started hugging me and touching me. With complete peace of mind, she gave me a hug and I asked her to leave me, but she, she slipped her hands down towards my pant and started removing my pant. While doing this she sat back on the couch.334 375 The accused was then asked at that point had you spoken to her about what you and she was going to do. In reply, the accused said; She said that ‘If you can give me cigarettes and vapes, I will suck your dick’. Asked her ‘No I can’t do’ and while I was saying, she slipped my pants down and she sat-started sucking my dick, I pushed her again, but she did the same thing again, she pulled me and started sucking my dick.335 376 When asked by his counsel how long RS sucked his dick, the accused responded, ‘One minute, one minute, 30 second, around about one minute’.336 377 Under cross-examination the accused’s account about the incident of fellatio changed. He said that when he returned to the rear room RS hugged him and said she needed vapes.337 The accused said that RS had told him that she is not under 18 and she showed him her ID again and said ‘I don’t have money but I need vapes and if you give it to me, I will romance with you’ by which he said he meant to have sex.338 In his account of that incident in examination in chief, the accused did not mention that RS had shown him her ID in the context of offering him sex for vapes. 378 The accused then said while hugging him, RS slid her hands down in his pants, removed his pants and took his penis in her hand and sat on the couch. When she sat on the couch she said ‘I will suck your penis’. The accused said that at the point RS hugged him, he started ‘behaving weird’ and agreed with her.339 First, he said he started wanting it to happen when she held his penis in her hand and touched his penis in her mouth. Then he agreed that it was after his penis was in her mouth that he decided he wanted it to happen.340 379 However, the accused later disagreed that it was the moment that his penis was in her mouth that he wanted oral sex to happen. He said he was ready when RS hugged him and then held his penis in her hand.341 The accused said that she held his penis, touched it to her mouth and then stepped a little bit back and then he was ready. 380 In cross-examination the accused denied several times that at that point he pushed RS. He said he did not push her. When it was put to him that he had 334 T167. 335 T167. 336 T171. 337 T190. 338 T191. 339 T192. 340 T193. 341 T194. -- 65 of 79 -- [2025] SADC 148 62 previously said that he had pushed her away, he denied having pushed RS despite his earlier evidence.342 381 The accused continued with his account of the incident under cross- examination. He said; First she held my penis in her hand, then she touched my penis to her mouth. At that time a customer arrived so I went back outside to attend the customer. In this time was ready to go ahead and then when I came back to the back room, then it started she started sucking again sorry.343 382 He said that initially when she held his penis and touched it to her mouth, he did not put it inside her mouth.344 383 Counsel for defence submitted that the evidence of the accused when looked at in its entirety is consistent and the court should be cautious in drawing a conclusion to the contrary. It was submitted that the distinction between the touching of the accused’s penis to the mouth of RS and placing the penis inside the mouth of RS was lost because the accused’s account of the incident was punctuated by a question concerning an interruption to the act of fellatio when the accused left the room to attend to a customer. It was submitted in effect, that when viewed in its entirety, the accused’s evidence as between examination in chief and cross examination is reconcilable on the basis that RS touched her mouth on the accused penis without placing it in her mouth and then when the accused returned from serving a customer RS then sucked his penis for about 90 seconds before he ejaculated. 384 I do not accept that explanation for the reasons that follow. Firstly, the accused’s evidence in chief was clear that RS placed his penis in her mouth and sucked it as she sat down, he pushed her, but she did the same again and pulled him back and started sucking his dick.345 In my view that evidence is unambiguous and establishes an account where the fellatio including sucking begins immediately upon RS drawing the accused penis to her mouth and at a time that he says he is still resisting. On the accused’s evidence, when he returns from serving the customer, he does not resist RS performing fellatio upon him. It does not follow therefore that the sequence described above, including the resistance and the sucking of the penis, occurred after rather than before the accused left the room to serve the customer. Secondly, the submissions by defence counsel do not account for the inconsistency in the accused’s account when he claimed under examination in chief to have pushed her again and then denied having done so in cross- examination. 385 I find this this to be a clear inconsistency in his evidence which went directly to his credibility on the issue of who initiated oral sex between them. I consider 342 T194. 343 T195. 344 T195. 345 T167. -- 66 of 79 -- [2025] SADC 148 63 the accused’s initial evidence that he pushed RS away when she placed his penis on her mouth to be false and an attempt to present RS as not only the instigator of sexual activity, but also as persistent in her efforts in engaging in sex in exchange for goods. 386 The accused gave evidence that after he and RS engaged in fellatio they were both at the front of the store and while he was not looking RS reached into the counter and took cash from the till. The accused did not claim to see RS take money and there was no other evidence to support the claim. The accused’s evidence on this issue was vague, lacked cogency and was unconvincing. I found it to be unreliable and simply an attempt to discredit RS and show her in a poor light. 387 The evidence of the accused about his limited responsibilities as a store assistant at the convenience store beggar belief. In particular I did not accept that his only function involved transactions for goods taken from the shelves and presented by customers for purchase.346 I did not accept that he was not required to sell anything from behind the counter, including cigarettes, unless someone demanded a cigarette.347 On his evidence he was prepared to supply cigarettes to RS and quoted her $45. I do not accept he was not to sell vapes which were stored behind the counter.348 On his evidence he did supply RS with vapes. Cigarettes and vapes are high value items and one would expect that an employee in a convenience store would be required to sell such items. 388 The accused acknowledged that the store operated a currency exchange service but said in evidence he took no part in that service. It is difficult to accept the accused had such a limited role in a business of this type where he worked alone. 389 The accused also understated his study and training in the English language. He claimed to have only commenced English language training in the past year, whereas under cross-examination it became apparent that he had been exposed to the study of English at school before coming to Australia. In my view the evidence of the accused about his limited responsibilities and his limited training in English were calculated to give the impression that he was at a disadvantage when communicating with RS. Assessment of Count 1, Unlawful Sexual Intercourse 390 The complainant RS gave evidence that she performed fellatio on the accused at the convenience store on 27 April 2023. The accused by his evidence admitted this element of the offence, namely that he engaged in sexual intercourse with RS by causing her to perform an act of fellatio upon him. 346 T180. 347 T185. 348 T185. -- 67 of 79 -- [2025] SADC 148 64 391 It is an agreed fact that RS, the complainant, was born on 23 April 2008, (Exhibit P13, Agreed Fact 1). Accordingly, it is proven that RS was a child aged 15 years at the time of the alleged offence. 392 In his closing address counsel for the accused submitted that on the evidence I should find the accused guilty of Count 1, unlawful sexual intercourse. 393 On the evidence that submission must be correct despite the accused’s plea of not guilty. 394 I find therefore the offence of unlawful sexual intercourse proven beyond reasonable doubt. 395 With respect to Count 1 there remains on the defence case a dispute about whether RS consented to, or indeed initiated oral sex with the accused in exchange for vapes or cigarettes or cash. 396 As I have previously noted, the absence of consent with respect to the offence of unlawful sexual intercourse is not relevant to proof of the offence. However, an assessment of the credibility of the evidence of RS that she did not consent to fellatio with the accused is relevant to the assessment of her evidence with respect to the remaining charges, Counts 2 to 5. 397 An assessment of her credibility about the denial of consent with respect to the act of fellatio is relevant to the assessment of her evidence about whether penile vaginal intercourse and digital intercourse occurred as alleged in Counts 2 to 5 and her denial of consent to those sexual acts as alleged in Counts 2 and 4. 398 In his closing address, counsel for the accused submitted in addition to the infirmities that he identified and which I have referred to earlier, the fact that RS was prostituting herself, namely ‘consenting’ to intercourse in exchange for goods, supports the proposition that she would prostitute herself on this occasion. 399 Counsel submitted, referring to the circumstances in which RS had negotiated a bargain involving sex for goods; …that makes it at least a reasonable possibility that she set about to initiate an act of sexual intercourse to gain something by exchange with Mr Raza and, if that is a reasonable possibility…then it strikes at the heart of her account about a lack of consent in that and the subsequent interactions’.349 400 I understand counsel’s submission that I should find that it is a reasonable possibility that RS consented to fellatio the subject of Count 1 by transacting with the accused to perform oral sex in exchange for certain items. Further, it follows from that finding that there is a reasonable doubt about her account relating to the allegations of subsequent sexual interaction. 349 T244. -- 68 of 79 -- [2025] SADC 148 65 401 I disagree with aspects of that proposition. The absence of consent is not an element of the offence of unlawful sexual intercourse and the prosecution is not required to prove an absence of consent or indeed the accused knowledge or recklessness that the complainant was not consenting. 402 The prosecution is not required to prove the absence of consent or the accused’s state of mind in relation to that issue in relation to the offence of unlawful sexual intercourse charged under Count 1. The question of consent by the complainant to the act of fellatio under Count 1 is relevant to the subsequent alleged acts of rape and the alternative charges of unlawful sexual intercourse. It is circumstantial evidence which is capable of establishing that it is more likely that she in fact consented to the subsequent sexual intercourse. It is also relevant to the credibility of RS about whether those acts occurred at all and if so, whether she consented to those subsequent acts of sexual intercourse. 403 A finding that RS did consent to fellatio is a piece of circumstantial evidence which does not form an indispensable chain in the finding of proof of any of the elements of the subsequent allegations of sexual assault. Accordingly, I am not required to accept that RS consented to fellatio simply on the basis that it cannot be excluded as a reasonable possibility. I am required to consider that question but I am not bound by that standard of proof to use the finding as a circumstantial piece of evidence with respect to the balance of the charges. 404 I will consider the evidence of RS about whether she consented to performing fellatio on the accused. 405 When considering the question about whether RS consented to the act of fellatio under Count 1, I bear in mind that a person is not to be regarded as having consented to the sexual activity the subject of the charge merely because the person had, on some other occasion, freely and voluntarily agreed to sexual activity (whether or not of the same kind) with another person. 406 Under cross-examination RS maintained her evidence that she did not agree to engage in oral sex with the accused when sitting on the couch. She said she told the accused that she had to catch a train. He asked her to sit down on the couch with a cigarette and that is what she did.350 407 She was then asked the following questions; 351 Q. Is the truth that you agreed to have a sexual interaction with this man. A. No. Q. And was staying at the back in order to perform that sexual act and then get what you agreed to transact with him. 350 T92. 351 T93. -- 69 of 79 -- [2025] SADC 148 66 A. No, that’s not correct. 408 The cross-examination moved to the timing of the text message RS attempted to send to her carer before returning to the topic of whether she consented to perform fellatio. At that point RS became more equivocal about whether she had negotiated to perform fellatio on the accused. She was asked; 352 Q. Wasn’t there are other conversation with this man other times when he was sitting not doing much with him before you gave him what you said was the head job. A. I don’t remember. Q. Including a conversation about your willingness to do that in exchange for some cash and some vapes or cigarettes. A. I do not remember, no. Q. You realised, didn’t you R, that this man wasn’t just going to hand over cigarettes to you after you spoke to him about that. A. What do you mean. Q. He wasn’t going to give you cigarettes for free after you asked for them. A. I understood that. Q. And did you make a bargain with him or a transaction that you would give him a head job in exchange for cash and some cigarettes or vapes. A. I don’t recall doing that. Q. Might you have said that to him. A. I don’t think I would have. 409 Several questions later RS was asked; 353 Q. And you offered to have sex with him in exchange for cigarettes and some money about $200. A. No, that’s not what I recall happened. 410 Defence counsel continued his cross examination about whether RS had agreed to perform fellatio in exchange for goods or cash. RS then became direct in her denials. She was asked;354 Q. …what I’m saying to you is that the reason you stayed in the back room is because you made an agreement with this man to suck his penis. 352 T95. 353 T96. 354 T97. -- 70 of 79 -- [2025] SADC 148 67 A. That’s – no. Q. And that’s what you did isn’t it, you sucked the man (sic) penis and you say that happened. A. Yes, that did happen. Q. That it wasn’t forced on you. A. It was. 411 I found the evidence of RS on the issue of whether she engaged in a negotiation with the accused to perform fellatio on him in exchange for goods or cash to be ambivalent. I found RS displayed an indifference in her demeanour when asked about this issue. Overall, I found her evidence on this issue unconvincing. 412 I do not consider her answers on the issue can be explained or reconciled simply as an awkwardness about the unpleasant nature of the allegation. RS did not exhibit difficulty when giving direct and unequivocal answers in her evidence about engaging in sex for goods in convenience stores on previous occasions. 413 I have therefore formed the view that the evidence of RS requires careful scrutiny, particularly but not only in relation to her evidence about whether she consented to sexual intercourse which are the subject of the disputed charges. Assessment of Count 2, Rape Element 1 - The accused engaged in or continued to engage in penile vaginal intercourse with the complainant 414 The accused gave evidence in which he denied engaging in penile vaginal intercourse with the complainant. I again remind myself about the approach to be taken in assessing the evidence of an accused person. 415 After taking due account of the difficulties the accused faced in giving evidence as a person from a non-English speaking background, I found the accused to be an unimpressive witness. 416 I have previously noted some of the infirmities of his evidence. The accused prevaricated and obfuscated in his evidence about the scope of his responsibilities at the store. Moreover, his account was inconsistent about how the admitted act of fellatio between himself and RS began and what happened. 417 I do not accept the accused’s evidence that he was unable to prevent RS from entering the back room of a convenience store. His evidence that he was concerned because she said she knew staff connected with the store, including his boss, was a weak explanation. It did not ring true. It was more likely, as he indicated, that he would be in trouble if he allowed her to enter behind the counter. I do not accept that the accused thought it would be more of a problem with his employer if he -- 71 of 79 -- [2025] SADC 148 68 was more assertive in his efforts to prevent RS from going behind the counter and into the back room. I do not accept that the accused was reluctant to prevent RS from going behind the counter and into the back room because she mentioned names of people she said were connected with the store, but who he had not previously heard of. 418 The evidence discloses that the accused gave RS a cigarette in the back room of the convenience store which she smoked while sitting on the couch in that room. If the accused had wanted RS to leave that area as he claimed, giving her a cigarette would be an odd thing to have done at a time he says he had not touched RS, and had not agreed to her offer of sex for cigarettes, vapes or cash. 419 I accept the evidence of RS that the accused developed an attraction to and sexual interest in her which manifested in comments about her appearance and a conversation between them about engaging in sex. 420 The accused changed his evidence between examination in chief and cross examination about having resisted the attempt by RS to place his penis in her mouth. In examination in chief he said he pushed RS when she started to suck his dick. However, in cross examination he denied having pushed her and said that he intended to engage in the fellatio when she held his penis. 421 I do not accept that the accused had not considered and raised the possibility of having sex with RS or responded to her overtures, given that within a short timeframe he was in fact engaged in oral sex with the complainant. 422 I do not accept that RS was able to remove the accused pants and hold his penis without compliance by the accused. I do not accept that he succumbed to her sexual propositioning only when she held his penis. I do not accept that he simply lost his senses at that moment. 423 That conclusion is reinforced by the improbability of his initial account in evidence that he resisted RS by pushing her when she tried to take his penis in her mouth, was then interrupted by a customer before placing his penis in RS’s mouth and returned to have RS commence fellatio until he ejaculated. 424 The accused’s account that RS lifted her upper clothing and pulled down her lower clothing during the act of fellatio was unconvincing. So too was his account of ejaculating on the complainant’s body. His explanation about uncontrolled ejaculation after a brief period of fellatio was unconvincing and he could not say where on her body he ejaculated. 425 Based on any assessment of his evidence, I reject the accused’s denial of engaging in penile vaginal intercourse with RS. Having rejected the accused’s evidence, I must nonetheless be satisfied beyond reasonable doubt on the evidence that I do accept, that the accused engaged in penile vaginal penetration with the complainant. -- 72 of 79 -- [2025] SADC 148 69 426 In proof of that charge the prosecution relies on the direct evidence of RS that the accused inserted his penis into her vagina after the act of fellatio comprising the charge under Count 1. 427 I have previously observed that RS was a forthright witness who was at times prepared to make admissions contrary to her interests and which potentially exposed her to criticism. Despite some of the infirmities of her evidence, I consider her to be generally credible and reliable. 428 I note that I am not required to accept or reject all of the evidence of a witness. I am permitted to accept some aspects of the evidence of RS while rejecting other aspects of her evidence. As I have already indicated an area of her evidence which requires careful scrutiny relates to the issue of her consent to sexual activity with the accused. Particular scrutiny is required in relation to this area of the evidence having regard to the infirmities concerning her claimed non-consent to the act of fellatio involving the accused. I have some misgivings about her credibility on this issue. That conclusion must of course bear upon her overall credibility. 429 However, having regard to my assessment of RS as a witness I accept her evidence relating to issues not involving consent to sexual activity as credible. Furthermore, although the evidence of RS was vague concerning the sequence of events, for example the timing of the text message to her carers, I regard her as a reliable witness in matters not related to her consent to sexual activity with the accused. 430 The direct evidence of RS concerning the act of penile-vaginal intercourse with the accused draws support from circumstantial evidence arising from the medical examination of RS and the forensic analysis of DNA samples recovered from her vagina and external genitalia. 431 The forensic evidence establishes that there was sperm observed on the microscopic smears prepared from the swabs taken by Dr Gallus from low vagina area, labia and perianal area of RS. It also establishes that sperm was located on a swab taken by Dr Gallus from the high vagina region. 432 A comparison was undertaken of the DNA obtained from the swab of the complainant’s high vagina with a reference sample of DNA taken from the accused. In her evidence the forensic scientist Ms Hearnden concluded that the probability that the accused was a contributor to the DNA recovered from the swab was greater than 100 billion over the alternative hypothesis that he was not a contributor, Exhibit P6 refers. 433 In relation to the DNA evidence, counsel for the defence did not suggest I should not find that the sperm which was analysed was that of the accused. It submits however that its presence on the vaginal swabs does not exclude a possibility that it was deposited by means other than penile or digital penetration. -- 73 of 79 -- [2025] SADC 148 70 434 Defence counsel submitted that there was evidence from RS that she wiped her vagina. There were low levels of sperm detected on the perianal swab which tends to suggest there was semen there which she needed to wipe from there, or which had been deposited there from somewhere else. 435 It was submitted that penile or digital penetration of the vagina is not the only way for the accused’s sperm to have entered the complainant’s vagina. 436 It was suggested that from that evidence there is a hypothesis consistent with innocence, that is that semen having been deposited on some other part of the complainant’s body was wiped into or around the area of her vagina. It was said that there was no evidence about the movement of sperm once it is in the vagina and it is one explanation for the presence of the accused sperm in the complainant’s vagina. 437 Counsel for the defence suggested a second hypothesis, which was described as a theoretical possibility, that the sperm located in the vagina of RS was accidentally deposited through contamination of the swab during the forensic procedure. It was suggested that the evidence of the thickening of the hymen of RS increases the probability of such accidental contamination of the swabs. 438 On the evidence there is a theoretical possibility that the accused’s sperm and DNA could have been transferred to the vagina, including the high vagina of RS, by means other than penile penetration involving ejaculation. 439 I reject both hypotheses. I am satisfied that the accused’s sperm was deposited by penile vaginal intercourse with RS, rather than by other means including the hypotheses suggested by the defence counsel for reasons that follow. 440 The only evidence that RS wiped herself in the area of her vagina is from RS herself. Her evidence is that she wiped herself in that region because the accused had penile vaginal intercourse with her. Her evidence does not support the proposition that the accused’s semen was wiped from somewhere else on her body to the region of her vagina and/or perianal area. 441 The evidence is that the accused ejaculated on RS absent penile vaginal intercourse, but he cannot say where on the body of RS he ejaculated. Although a theoretical possibility, there is no evidence that RS wiped semen from another part of her body onto or near her vagina or perianal area (from where it made its way to the high vagina). It might be thought as a matter of ordinary human experience that it would be an unusual thing for a woman to wipe ejaculate onto or near her vagina from another part of her body, even if it was close to the vagina. 442 Dr Gallus was an impressive witness. Her evidence disclosed an acute understanding of the forensic medical procedure which she conducted on RS. She carefully explained the general procedures associated with the forensic examination to reduce the risk of contamination. The evidence of Dr Gallus clearly identified the risk of contamination of swabs taken from inside the vagina as it -- 74 of 79 -- [2025] SADC 148 71 passed through the vagina. She identified the particular risks in this case associated with the thickening of her patient’s hymen. The evidence of Dr Gallus establish that she has routinely performed many such procedures on juvenile females. Based on the evidence and her expertise, I am satisfied that there was a very low risk of contamination of the high vaginal swab by contact with the hymen. I am satisfied that was a lower level of risk associated with the potential contamination of the high vaginal swab from contact with the external area of the vagina and the labia of RS. 443 I am satisfied therefore that the sperm and DNA recovered from the high vaginal swab taken by Dr Gallus was not deposited by RS when she wiped herself or due to contamination during the procedure performed by Dr Gallus. 444 I am satisfied that the sperm and DNA recovered from the high vaginal swab taken by Dr Gallus was deposited during the course of penile-vaginal intercourse between the accused and RS. 445 During the forensic medical procedure Dr Gallus observed and noted two small abrasions in the posterior fourchette region of the vagina of RS. Dr Gallus described the abrasions as linear, approximately 3 to 5 mm long and approximately 1 mm wide.355 She said that injuries in this region would have been caused by trauma from direct friction or lateral traction of the tissue. She agreed that the narrative of events given by RS could account for the injuries. Dr Gallus said that the trauma would require force. Under cross-examination, she agreed that the injury could have been caused by wiping a piece of paper towel across the genitals, if force was used and the paper was coarse.356 Dr Gallus could not comment on how much force would be required to cause the injuries. She said that at this stage of RS’s life, the tissue in that area is at its healthiest but is still more delicate than skin elsewhere in the body. She said the tissue is reasonably elastic. 446 As a matter of ordinary human experience, I consider it unlikely that a young woman would apply such force when wiping herself in such a sensitive and delicate area to cause an injury of this kind. 447 In my view, the evidence of the abrasions to the posterior fourchette of the vagina of RS support a conclusion that there was a recent penetration of her vagina. 448 I am satisfied beyond reasonable doubt, having regard to the direct evidence of RS, that the accused penetrated her vagina and having regard to the circumstantial evidence comprising the presence of the accused’s sperm DNA in the high vaginal area of RS and the abrasion injuries to the genitals of RS, that the accused penetrated the vagina of RS with his penis. 355 T139. 356 T139. -- 75 of 79 -- [2025] SADC 148 72 Element 2 – Did intercourse occur without the consent of RS 449 I have previously observed that the evidence of RS about whether she entered an arrangement with the accused to engage in fellatio in exchange for cigarettes, vapes or cash was not compelling. 450 It is clear from all the evidence that RS was in search of vapes and or cigarettes. In her evidence RS said that she had gone to the city to obtain cigarettes or vapes. It appears that she had no or insufficient money to purchase these items. She intended to obtain the items from convenience store staff who she knew despite having no or insufficient money. In her evidence RS admitted that she asked the accused for cigarettes. 451 The evidence also discloses that RS had for some months immediately prior to the incident, engaged in sexual intercourse including fellatio and penile vaginal intercourse with staff at the same store and other convenience stores in exchange for cigarettes, vapes, alcohol, drugs and cash. RS admitted that in about half the occasions in which she entered into such arrangements she had initiated the transaction. 452 I have considered the evidence of an initial complaint and the elaboration and the degree of consistency with the evidence of RS. 453 I have considered the evidence of the attempted text message sent to her carers. I accept the submissions of defence counsel that the text message was not led and should not be used for the truth of its contents, but it can be used to assess the consistency of the evidence of RS. 454 Having regard to the infirmities in her evidence denying that she had entered into such arrangements with the accused and had therefore consented to sexual intercourse, and her recent sexual behaviour in very similar circumstances I am left with a reasonable doubt about whether RS did not consent to sexual intercourse with the accused in exchange for cigarettes or vapes. Element 3 - The accused knew that the complainant was not consenting or was recklessly indifferent as to the lack of consent to sexual intercourse 455 In circumstances where the prosecution has not established beyond reasonable doubt that the complainant did not consent to sexual intercourse, the state of mind the accused as to consent requires no consideration. 456 Accordingly, I find Count 2 not proven and the accused not guilty of this offence. -- 76 of 79 -- [2025] SADC 148 73 Assessment of Count 3, Alternative Offence - Unlawful Sexual Intercourse Element 1 - The accused engaged in or continued to engage in penile vaginal intercourse with the complainant 457 I have found with respect to the charge of rape under Count 2, that the accused engaged in penile vaginal sexual intercourse with RS as alleged. 458 I adopt that finding for the reasons previously given with respect to the charge of unlawful sexual intercourse, Count 3, and find this element proven beyond reasonable doubt. Element 2 - RS was under the age of 17 years at the time 459 It is not disputed that RS’s date of birth is 23 April 2008 and at the time of the alleged offence on 27 April 2023 she was 15 years of age. The statement of agreed facts, Exhibit P 13, paragraph 1 refers. 460 Accordingly, I find that the offence of unlawful sexual intercourse charged as Count 3 has been proven beyond reasonable doubt and find the defendant guilty on that charge. Assessment of Count 4, Rape Element 1 - The accused engaged in or continued to engage in digital vaginal intercourse with the complainant 461 The prosecution relies upon the evidence of RS to establish that the accused inserted his finger or fingers into the vagina of RS. 462 The allegation was denied by the accused in evidence, and I refer to my findings and what flows from that with respect to the accused’s evidence about whether he engaged in intercourse with the complainant. For the same reasons, I reject the accused’s evidence as a reasonable possibility. 463 On the evidence that I do accept, the question remains, has the prosecution proven the accused inserted his finger or fingers into the vagina of RS. 464 I have concluded that the evidence of RS was generally credible and reliable in relation to issues not related to whether she consented to sexual activity with the accused by entering an arrangement with him to have sexual intercourse in exchange for cigarettes, vapes or cash. I have found proven that the accused engaged in penile-vaginal intercourse with RS relying on her direct evidence supported by the circumstantial evidence relating to the presence of sperm in the vagina of RS, analysis of DNA samples taken from the complainant’s high vagina and the medial examination of the complainant conducted by Dr Gallus which revealed tears to the complainant’s posterior fourchette. 465 I have considered whether the complainant’s allegation of digital penetration is supported by any circumstantial evidence. The forensic evidence led by the prosecution establishes that the accused had DNA under his fingernails from both -- 77 of 79 -- [2025] SADC 148 74 the left and right hands matching a reference sample of DNA from the complainant. The source of the DNA from RS found under the fingernails of the accused is not known. 466 In her evidence RS said that the accused touched her in various places including the neck and chest before and during the act of fellatio. It is not possible therefore to establish whether the source of the DNA from RS deposited under the fingernails of the accused was from the inside of the vagina of RS or from elsewhere on her body when the accused touched her with his hands. The forensic evidence is therefore neutral and not capable of supporting a conclusion that the accused’s finger or fingers were inserted into the vagina of RS. The evidence of tearing observed to the posterior fourchette of the vagina of RS is also not probative in relation to the issue of whether digital penetration of the vagina occurred in circumstances where the tearing is capable of being explained by an earlier act of penile penetration which has been proven beyond reasonable doubt. 467 I also observed that in her initial complaint and elaboration of that complaint RS made no specific reference to digital penetration of her vagina. 468 Despite the finding that RS was generally reliable and credible and the finding that the accused engaged in penile-vaginal intercourse with RS consistent with her account, in the absence of forensic evidence supporting the allegation of digital penetration, I am left with a reasonable doubt that the accused inserted his finger or fingers in the vagina of RS. 469 The doubt that I entertain about the alleged act of digital penetration of RS by the accused does not undermine my confidence in the proof of the allegation of penile penetration of RS by the accused which, unlike the allegation of digital penetration, was supported by cogent circumstantial evidence. 470 The failure of the prosecution to prove the accused engaged in sexual intercourse means that elements 2 and 3 relating to the absence of consent by RS to the alleged sexual intercourse and the accused’s knowledge or recklessness as to the absence of consent, do not arise. 471 Accordingly, I find that the offence of rape charged as Count 4 has not been proven beyond reasonable doubt and I find the defendant not guilty on that charge. Assessment of Count 5, Alternative Offence - Unlawful Sexual Intercourse Element 1 - The accused engaged in or continued to engage in digital vaginal intercourse with the complainant 472 In order to prove the charge of unlawful sexual intercourse under Count 5 the prosecution must establish that the accused engaged in digital vaginal penetration of the complainant. -- 78 of 79 -- [2025] SADC 148 75 473 I have found with respect to the charge of rape under Count 4 that the prosecution has not established that the accused engaged in digital vaginal sexual intercourse with RS as alleged. 474 For the same reasons, I make the same finding in relation to the alternative charge under Count 5 and find the accused not guilty of the charge. Verdicts 475 Count 1 - Unlawful Sexual Intercourse: Guilty. 476 Count 2 - Rape: Not Guilty. 477 Count 3 - Unlawful Sexual Intercourse: Guilty. 478 Count 4 - Rape: Not Guilty. 479 Count 5 - Unlawful Sexual Intercourse: Not Guilty. -- 79 of 79 --