[2024] SADC 3

Prosecution: R Counsel: MR A ENGLISH - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: DRYDEN STEWART MACDONALD Counsel: MR C CALDICOTT - Solicitor: CRAIG CALDICOTT LAWYERS Hearing Date/s: 16/01/2024 to 18/01/2024, 23/01/2024 File No/s: DCCRM-22-1149 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 MACDONALD Criminal Trial by Judge Alone [2024] SADC 3 Reasons for the Verdict of his Honour Judge Stretton 25 January 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE The accused was charged with the Sexual Abuse of a Child and two offences of Assault Occasioning Actual Bodily Harm to that same child, arising out of a relationship it is alleged he had with the complainant between early 2004 and 2006 when she was between the ages of 13 and 16. It was not disputed that the complainant became pregnant with the accused’s child at the age of 15. The accused pled guilty to the charge of Sexual Abuse of a Child, but maintained that the offending did not start until late 2004 when the complainant was 14 and disputed particulars of the charge that alleged that in the course of sexual activity with her, he performed anal sex, inserted a beer bottle into her vagina and on one occasion urinated on her. The accused denied the assault charges. The accused elected for trial by judge alone. At the request of the parties, the court tried the disputed facts and particulars concerning the Sexual Exploitation of a Child together with the trial of the two Assault Occasioning Actual Bodily Harm offences. As to the disputed facts and particulars of Sexual Exploitation of a Child: -- 1 of 32 -- The offending commenced in April 2004 as alleged by the complainant. Particular (c) alleging anal intercourse is not proven beyond reasonable doubt. Particular (e) alleging that the accused urinated on the complainant is proven beyond reasonable doubt. Particular (f) alleging that the accused inserted a beer bottle into the vagina of the complainant is proven beyond reasonable doubt. As to the offences of Assault Occasioning Actual Bodily Harm: Count 3: Guilty. Count 4: Guilty. R v Spencer [2019] SASCFC 70, applied. BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v The Queen [2014] NSWCCA 213; Mardou v The Queen [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150; R v Smith (1897) 18 Cox CC 470; R v Grills (1910) 11 CLR 400; R v Salahattin [1983] 1 VR 521; R v Kamleh [2003] SASC 269; Woon v The Queen (1964) 109 CLR 529, considered. -- 2 of 32 -- R v MACDONALD [2024] SADC 3 1 The accused is charged with the offence of Sexual Abuse of a Child contrary to s 50(1) of the Criminal Law Consolidation Act, 1935 (‘the Act’).1 He is also charged with two offences of Assault Occasioning Actual Bodily Harm.2 2 The accused pled guilty to the offence of Sexual Abuse of a Child, but disputed several particulars of the charge as well as the period over which the offending occurred, and the initial age at which the offence was alleged to have commenced. 3 The accused pled not guilty to both charges of Assault Occasioning Actual Bodily Harm. 4 The accused exercised his right to elect for Trial by Judge Alone. 5 The offences are alleged to have arisen in the course of a sexual relationship conducted by the adult accused with the complainant as a child. It is not in dispute that eventually the then 16-year-old complainant gave birth to the accused’s child. The nature of the trial 6 Counsel proposed and agreed that the court hear the contest as to the disputed particulars and facts concerning the Sexual Abuse of a Child charge at the same time as the contested criminal trial of the Assault Occasioning Actual Bodily Harm charges. The elements of the offences 7 The elements of the offence of Sexual Abuse of a Child are as follows: 1. That at the relevant time the accused was an adult; a person of or over the age of 18 years. 2. That at the relevant time the complainant was a child. A child is defined as a person who is under 17 years of age. 3. That the accused maintained an ‘unlawful sexual relationship’ with the complainant. An ‘unlawful sexual relationship’ is a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period. An ‘unlawful sexual act’ means any act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence; A sexual offence includes unlawful sexual intercourse with a child, indecent assault or committing an act of gross indecency. 1 Count 1, Information dated 16 January 2024, FDN 42. 2 The relevant statutory offence at the time of the alleged offences. -- 3 of 32 -- [2024] SADC 3 2 4. A person commits unlawful sexual intercourse if they have sexual intercourse with a person who is under the age of 17. 5. It is an offence to indecently assault another person, which such offence comprises the unlawful application of force to another person, without consent, in circumstances of indecency accompanied by a sexual connotation. A child is legally incapable of consenting to an indecent assault. 6. It is an offence to, in public or in private, commit any act of gross indecency with, or in the presence of, any person under the age of 16 years or to incite or procure the commission by any such person of any act of gross indecency with the accused or in the presence of the accused, or with any other person in the presence of the accused or is otherwise a party to the commission of any act of gross indecency by or with, or in the presence of that person. A child is legally incapable of consenting to an act of gross indecency. 7. The Act provides that for an adult to be convicted of an unlawful sexual relationship offence, whilst the court must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed and the prosecution must allege particulars of the period of time over which the unlawful sexual relationship existed, the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and the court is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of, if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts. 8 The offence of Assault Occasioning Actual Bodily Harm is committed where: 1. The accused intentionally and voluntarily applies force to another person. 2. The application of force was unlawful, in other words not lawfully justified in any way such as by consent, lawful arrest or other legal principle. 3. Harm is thereby occasioned to the other person. There need not be an intention to cause harm. The issues in this case 9 The prosecution case is that the accused met and almost immediately commenced a sexual relationship with the complainant when she was 13 years of age. It is alleged that the complainant became pregnant to the accused at the age -- 4 of 32 -- [2024] SADC 3 3 of 15 and had his child at the age of 16. The prosecution alleges that the sexual relationship continued until the complainant was at least 16 and a half. 10 The defence admits an unlawful sexual relationship and that the particularised allegations of penile-vaginal intercourse, fellatio and cunnilingus did occur, but denies the particularised allegations of anal intercourse, vaginal penetration with a beer bottle and urinating on the complainant. The defence denies that the sexual relationship started when the complainant was as young as 13. 11 The prosecution alleges that the accused was controlling, manipulative and abusive, and that during the relationship he also committed the following two charged assaults against the complainant. 12 The prosecution alleges that on an occasion where the complainant had undercooked a meal, the accused assaulted her occasioning her actual bodily harm by throwing an unopened can of Woodstock Bourbon, a pre-mixed alcoholic drink, which struck the complainant’s face with sufficient force to split both her upper and lower lips causing bleeding, and then continued the assault by repeatedly punching her.3 13 The prosecution alleges that at a time when the complainant was approximately five months pregnant with the accused’s child, the accused became enraged that the complainant had received an MSN message and consequently assaulted her by punching and kicking her, culminating in directing a kick at the complainant’s head as she lay on the ground. The complainant tried to shield her face and the accused kicked her wrist, causing it to fracture.4 14 The defence case at trial was that, whilst there was an unlawful sexual relationship between the accused and the complainant, the timeline was disputed. Further, that there was no anal intercourse, nor did the accused ever penetrate the complainant with a beer bottle, nor urinate on her. 15 The defence case at trial was that the accused did not commit the alleged assaults, and that the events comprising and surrounding the assault allegations simply did not occur. 16 In light of the real issues at trial; that is, when the sexual relationship commenced, whether the contested particulars happened, and whether the two charged assaults occurred at all, more of the evidence concerning those events will be set out in these reasons than might usually be the case. All of the evidence given and tendered at trial has however been heard, taken into account and carefully considered. 3 Opening, T 25-26. Count 3. 4 Opening, T 27. Count 4. -- 5 of 32 -- [2024] SADC 3 4 The course of trial 17 The complainant gave evidence at trial. The accused also gave evidence. There were no other witnesses as to the disputed facts. 18 Facebook conversations between the complainant and the accused allegedly comprising admissions by the accused were tendered, as were medical records documenting the complainant’s fractured wrist. Some other items were also tendered. 19 The investigating officer gave evidence as to her unsuccessful attempts to persuade potential witnesses to provide statements. Legal principles 20 In a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision. Whilst sufficient reasons must be given to properly explain the verdict,5 a trial judge, sitting alone, is not obliged to express all the matters ‘which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law’.6 21 To be clear, however, the court has applied all the principles applicable to a criminal trial of charges of this nature that would be set out by way of all the standard directions to a jury. It serves no purpose to set out pages of standard form directions, however, they have all been applied. 22 It is fundamental that the accused has, and always retains, the presumption of innocence. The prosecution at all times bears the onus of proof and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence and must do so based only on the evidence relevant to that offence. The prosecution must also prove any disputed aggravating fact or particular beyond reasonable doubt. 23 As this trial concerns offences that are said to have occurred between the years 2003 and 2006, at a time when the complainant was 13 to 16 years of age, the alleged events are a number of years old. 24 The law recognises that this passage of time means that the accused is at what is known as a ‘forensic disadvantage’. The passage of time will have had a significant impact on the accused’s ability to respond to these allegations and test the case against him. 25 Due to the passage of time, witnesses’ memories will likely have faded, which will have impeded the ability of the defence to challenge witnesses on 5 BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; and Aiken v The Queen [2014] NSWCCA 213. 6 Mardou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150 at [6]-[25]. -- 6 of 32 -- [2024] SADC 3 5 matters of detail or expose where a witness may have been inconsistent, or wrong. For example, if the events were more recent in time, more specific dates, times, and circumstances may have been alleged, with such specifics, the accused may have been able to address or disprove by evidence. 26 Further, witnesses whose recollections may have been able to support the defence case might have been available. Relevant documents may also have been available, in particular, as observed by defence counsel in his final address: 1. It was an issue in the case as to whether the accused spent the night with the complainant at the Hilton Hotel in 2004, however recent police inquiries with the hotel revealed that records from that time had not been retained. 2. Rental records relating to the accused’s tenancies at his initial Craigmore property and subsequent Tranmere rental property would have assisted to accurately identify when the accused and the complainant moved between them, and accordingly, with timelines generally as well. Recent police inquiries were not able to secure any such records. 3. Whilst no-one sought to obtain them, the passage of time may well have meant that records of the complainant’s visit to the abortion clinic would have been unavailable, had they been sought. 27 Whilst one cannot know what evidence the accused might have been able to secure and call, evidence may have been available or locatable to support the defence case on any one or more issues, had the allegations come to light earlier. 28 The court must and will take these disadvantages into account when scrutinising the evidence of the prosecution witness, and the case generally. 29 Evidence was given as to the whole course of the relationship between the accused and the complainant. On the prosecution case, the relationship included considerable domestic violence and conduct by the accused that could be regarded as negative. No objection was taken. The evidence was led solely to explain the relationship and context of the charged offending, and not to suggest that the accused was a bad person, of bad character, or to suggest any kind of propensity to commit this or any other offence. The court must and will ensure that the evidence is not used for any such or other impermissible purpose, in particular, for no purpose beyond explaining the relationship between the accused and the complainant, and the context in which the charged offences are alleged to have occurred. 30 The accused gave evidence on oath. He was not obliged to do so. The accused deserves credit for taking a course he was not in any way obliged to take. Having done so, his evidence is to be considered and evaluated in the same way as any other witness. -- 7 of 32 -- [2024] SADC 3 6 The evidence 31 The complainant gave evidence that she was born in May 1990 and is now 33 years old. 32 The complainant gave evidence that her parents had separated when she was three months old. In early 2004, the complainant had recently moved from her mother’s house to live with her father in Gilles Plains. Unfortunately, her father was an alcoholic and a very poor parent. She would stay with him during the week, and he would drop her at one of her friends’ houses for each weekend, often at her close friend CH’s place at Elizabeth Grove. CH was about the same age. 33 The complainant gave evidence that she met the accused in February 2004 when she was 13 years old. At the time, the complainant was staying at CH’s house at Elizabeth Grove, and she and CH were then playing with some children a few houses down the road. There was a birthday party occurring at that address down the road, for one of the children who lived at that address. The parents at that address were adults who will be described as PW and ML. The accused was also at the party. 34 The complainant gave evidence that the accused offered to take the complainant and CH for a drive to get more soft drink for the party, and they went with him. Instead of purchasing soft drink, the accused bought alcohol at a bottle shop and then drove them to his house at Craigmore. The accused then provided alcohol and cigarettes to the complainant and CH, and they spent time in the lounge together getting drunk.7 35 The complainant gave evidence that at some point, a male who will be described as TK was also there and started ‘coming on to’ CH in the loungeroom, laying her down on the couch and kissing her, at which the accused took the complainant to another room at the front of the house. The complainant said she did not remember how much longer she was at the house that day, nor how she came to leave it, but she did recall being back at her friend CH’s house later that day, and later discussing the events of the day with CH.8 36 The complainant gave evidence that the accused then began to regularly come past CH’s house when she was staying there and playing at the front of CH’s house or playing with other children in the street. The accused would drive up, talk to them, and offer to take them to Hungry Jack’s or similar. Over time, between February and April 2004, the accused started taking CH and the complainant to the cinema and bought the complainant a mobile phone with phone credit so that he could speak directly to her by phone.9 37 The complainant gave evidence that she came to think that the accused was looking after her and taking care of her. Her father was neglecting her, but the 7 T 38. 8 T 40. 9 T 40. -- 8 of 32 -- [2024] SADC 3 7 accused would take her for a meal, or to do some fun activity, and had given her the phone so she could contact him.10 38 The complainant gave evidence that the next occasion she attended the accused’s Craigmore house was in mid to late April 2004. 39 She was there with CH also, and she had been drinking in the loungeroom but began to feel sick. Accordingly, she and the accused went into a bedroom so she could lie down. The accused then tried to kiss her, and she recalls saying ‘ew, you remind me of my dad’, because of the accused’s facial hair. The accused then pulled the complainant’s pants down despite her attempts to pull them back up again, and then performed cunnilingus on her, commenting throughout, and continued to perform cunnilingus despite her attempts to push his head away and stop him, and despite her crying throughout.11 When he had finished, the accused said to her ‘you’re mine now’.12 40 The complainant gave evidence that she felt really confused, upset and angry, and did not know how to process what was happening to her. After it finished, she went to the toilet in tears. She felt embarrassed, betrayed, scared, upset and still unable to process what had just happened to her.13 41 The complainant gave evidence that because of what happened, she did not respond to the accused’s calls and messages for a couple of weeks, that they upset her, and she became quite distraught, and she started going off the rails with her schooling.14 42 The complainant gave evidence that the accused kept persisting, and he also kept coming around to CH’s house when she was there, offering to take them out and do things, so she began to trust him and started to have contact with him again. 43 The complainant gave evidence that for the accused’s 12 May 2004 birthday, there was a party for it at the accused’s Craigmore house. It was held at around that time but not necessarily on that day. The accused invited the complainant and CH to the party, telling them that they could only attend after PW and ML had left, as ML didn’t approve of him spending time with the complainant and CH.15 44 The complainant attended the party with her friend CH. The complainant became quite intoxicated over the course of the evening on Maker’s Mark whiskey provided by the accused, drinking both inside the house and out the back. After some others had left, the accused took the complainant down the hallway into his bedroom and placed her on the bed. The complainant gave evidence that she was very drunk and just lay there. The accused pulled her pants down, pulled his own 10 T 42. 11 T 41. 12 T 95. 13 T 42. 14 T 43. 15 T 44. -- 9 of 32 -- [2024] SADC 3 8 pants down and then had penile-vaginal sex with her until he ejaculated. The complainant said she can remember looking around the room and feeling embarrassed and wondering if anyone else in the house knew what had happened.16 45 The complainant gave evidence that she then believed that because he had had sex with her, the accused loved her, so she willingly continued to see him and started regularly going around to the accused’s Craigmore house with CH. The accused would take them places and buy them necessities when they needed them. 46 The complainant gave evidence that from the beginning of their relationship, the accused told her to tell others that she was 15, rather than 13 or 14.17 47 The complainant gave evidence that as the complainant’s late-May 2004 14th birthday approached, the accused made a big deal of the fact that he was organising to take her to a hotel room to celebrate that she was turning 14 years old.18 On the day, they drove to the Hilton Hotel in Victoria Square. They took an Xbox, to play a game called Skip-Bo. It was still daylight. Also attending were two other friends of the accused, ML and his partner SB, who arrived shortly after the complainant and the accused had checked in. 48 The complainant gave evidence that shortly after all of them were in the room, ML made a comment indicating that ML wasn’t happy about the accused being with the complainant, given her age. At that, the accused got very angry and argued with ML out in the hotel hallway. A short time later the complainant came out into the hallway to find that both ML and SB had left.19 49 The complainant gave evidence that she and the accused went back to the room and played Xbox. The accused had made a big deal about the fact that they were going to have ‘birthday sex’ to celebrate her 14th birthday, and so they stayed the night and had penile-vaginal sex. 50 The complainant gave evidence that the accused gave her a gold bangle for the birthday. The bangle was produced to court and a photocopy of it was tendered.20 51 The complainant said that she kept the Hilton Room card from 2004 as a memento in a photo album with other items from that time, and a Hilton room card for room 1411 was tendered.21 An examination of that card tends to suggest it was indeed from that time, as printed on part of the card is a promotional paragraph about another Hilton: “Hilton Sydney – Sydney’s icon hotel returns in 2005. A dramatic reconstruction will deliver a stunning new convention and meeting hotel 16 T 46. 17 T 122. 18 T 47. 19 T 51. 20 T 85, P3. 21 T 84, P2. -- 10 of 32 -- [2024] SADC 3 9 with 577 beautifully refurbished rooms. …”22 which tends to infer that the room card was created for use prior to the envisaged 2005 renovations for Hilton Sydney, and that consequently the room card was likely issued and used no later than 2005. 52 The complainant gave evidence that from that time or shortly after, she started spending most of the time, some five to six nights a week, at the accused’s house. She gave evidence that she believed that the accused loved her because he was having sex with her. In the absence of any real support or parenting from her father, and with her mother not being around at all, the accused would tell her that ‘No one else is coming to look after you, no one else loves you, I’m the only one that loves you’ and given that he was the one providing food and shelter, she continued to believe that he loved her.23 53 The complainant gave evidence that at that time the accused’s sister Stacey was also living at the Craigmore address with Stacey’s pre-school child. Whilst the complainant made an effort, and would help with her child, she said that her relationship with Stacey was not very good, and Stacey did not appear to like her:24 Q Was Stacey living at the house on the occasions when you would stay overnight - A Yes. Q - at the Craigmore house. A Yes. Q I'm not going to ask you what was said but was the topic of your relationship with Mr MacDonald ever discussed between you and Stacey. A It created friction between their relationship, and they would argue over me being there and I remember when I was 14 Stacey had asked me to get a job because I was staying there, and Dryden was struggling to pay the rent. Stacey at that time was working at a brothel and they were struggling to pay the rent and she had some frustration built up and told me to get a job and that was when Dryden argued the fact that I couldn't get a job because I was just 14 and they had an argument and she moved out because of the words that he had said to her. 54 The complainant described how matters proceeded from there, and how the relationship then changed. In her own words: 25 Q After the Hilton Hotel you continued to stay at his home. A Yes. Q What was your relationship like with Mr MacDonald whilst you were staying at his house during this period. 22 P2. 23 T 53. 24 T 90. 25 T 53-56. -- 11 of 32 -- [2024] SADC 3 10 A At times it was fun because we would go out and do things together that I wasn't able to do at that age. I didn't have a car and I couldn't go anywhere, and I couldn't buy myself alcohol, and I was drinking a lot of alcohol at his house, and smoking and doing things like that, and I thought I was a bit more grown up than what I was. And eventually, as things progressed, things became violent because I would get upset when he would initiate sex. Sometimes I wouldn't want to participate, and he would get angry at me, and then forcefully do it, and then he would hurt me afterwards if I was crying or being loud. Q How often did that happen. A That really depended on Dryden's mood. Sometimes he was nice to me, and other times he wasn't. The sex was almost daily at some point after my 14th birthday. And when he would request things from me, and if I would say no, he would just take what he wanted, and then he would push me onto the floor and sometimes spit on me and kick me and things like that. And then he would leave me alone and make me feel really ashamed of what had just happened. I felt really humiliated. … Q Do you remember when it first started to change. As you've indicated so far, up until and after the Hilton Hotel everyone - seemed to be going in a positive way in terms of there wasn't any violence or anything of that nature. Thinking back now, do you remember a point where it just started to change. A Yes. I remember we were in the lounge room at 37 Blackwood Drive and he asked me to suck his dick, and I didn't know how to do that, so he grabbed his hands on the back of my head and forcefully made me perform oral sex on him, and then he threw me on the ground after and urinated on me, and then told me to clean it up, and called me a C-word. Q How did you react to that. That must have been a very sudden shock. In your own words can you just talk me through that in a little bit more detail, and as to how you felt, and how you felt afterwards. A Yeah. So when I started, when I didn't know what to do, and he grabbed my head and pushed it down, I was pushing my head back up, and I don't recall what I was saying, but I remember feeling really scared and confused about what was happening. And as he was forcing me to do it, I was crying and I was gagging. And then when he ejaculated in my mouth I almost threw up. And then that was when he pushed me onto the floor and stood above me and urinated on me, and then told me to clean it up. Q Were there any words from him or explanation or was he saying why he was suddenly doing that very negative thing. A No. It was because I was resisting what he wanted, I thought. He didn't explain what he was doing, he just would flip into a rage. Q Do you recall - you've talked about the incident just a moment ago where he's urinated on you. A Yes. -- 12 of 32 -- [2024] SADC 3 11 Q During the course of your relationship with him did he urinate on you once or more than once. A Once. He would spit on me other times, and he would hit and kick me. He'd also grab me by the hair to control the way that my head was looking so I was looking at him while he was yelling at me. And he would smack me in the mouth a lot. Q Was there anything that was explaining why he would behave in this way. A Because I would get upset and not want to participate. Q Participate in what. A Sexual acts with him. When I was really drunk he can just have his way, and when I wasn't really drunk, I would put up a fight and say no, and not want to participate, and that was when he would get angry and violent. Q How were you living at that time, in terms of your personal needs. A I didn't really have much. I left my mum's house to my dad's house, and didn't have much there, and then shortly after that I was at Dryden's house most of the time, so I basically had one set of clothes. Maybe an extra shirt, if that. I didn't really have much. There was never any food in the house, so we lived off of takeaway, and Dryden would often sleep until after lunch, because he would be up all night playing a computer game. So I would be up early in the morning, and be up all day, and hungry, and he would ask me to perform sexual acts so that we would go and get food, and get the things that I needed. Q How often did that happen, that he would ask for sex in exchange for food. A That was always. Not always, but it was very often. If we were out in the car together, we would get it, and that was fine, but if we were at the house and he didn't want to leave, I would have to perform sexual acts to go and get that food. Q What about - HIS HONOUR Q Just before you move too far away from the event where you described how things changed and became violent, roundabout when was that in the course of your time with him. You described how there was the April and the May birthdays, and then (after)26 the May birthday, the sex became very regular, because you were there with him five or six days a week. Do you remember how long after that May birthday that this event occurred, where he became violent, and the urination occurred. A Everything happened really rapidly, so it wouldn't have been too far after my birthday. So I was 14 at the time of that incident. 55 Whilst it is unnecessary to set it all out, the complainant then gave detailed evidence of a how the relationship proceeded in this way, what the accused would do, and how he would behave towards her over time, and how violence towards 26 There is a typographical error in the transcript as this word is recorded as ‘other’. -- 13 of 32 -- [2024] SADC 3 12 her in the above type of circumstances became a part of the relationship. She described a number of incidents that she said occurred. 56 The complainant gave evidence that she could recall a New Year’s Eve party held at the Craigmore address at the end of 2004 when she was still 14. She listed several of the accused’s friends who were present and produced a photo of her with the accused taken that evening by the accused’s sister, Stacey. On the back of the photo the complainant had written her and the accused’s names and ‘news year’s eve 2004’ prior to placing it into her photo album at the time. The photo was tendered, depicting the complainant and the accused. The complainant is smoking and holding a drink.27 57 The complainant gave evidence that on an occasion in the front bedroom at the Craigmore house when the accused had got her so drunk that she could barely move, the accused had anal intercourse with her.28 58 The complainant gave evidence that after a time, there was an issue at Craigmore with the rent not being paid, and a house at Tranmere had become available to the accused, as the person occupying that house had gone to gaol. The complainant was still 14. The accused had a skip bin delivered to the house and left the complainant there with cleaning materials to clean the house which was in a very poor state. They moved in. 59 By that time, the complainant’s relationship with her father had become non- existent, although sometimes if the complainant would scream and cry too much after the violence the accused had inflicted on her, the accused would take her back to her father’s house and leave her there. Her father would usually be drunk or not at the house.29 60 At the time of the move to Tranmere, the accused had reconnected with his 7-year-old daughter from a previous relationship, and that daughter would stay on the weekends. The daughter would also be there on Wednesdays for swimming practice, and the complainant would be required to look after her as the accused would not. The complainant turned 15 at some stage while at that house.30 61 The complainant gave evidence that by that time, at the new house, whereas previously she had been too scared to say anything, she had started talking back to the accused a little more. The complainant gave evidence that one night the daughter walked past their bedroom while they were having sex, saw them, and the accused had told her to go away. The next morning the accused showed the complainant that he had recorded their sexual activity on his laptop and said that he would show it to people unless the complainant continued to do what he wanted. She was mortified. He would then bring it up on numerous occasions over time.31 27 T 86-88; P4. 28 T 126. 29 T 63. 30 T 59-60. 31 T 61. -- 14 of 32 -- [2024] SADC 3 13 The accused would also play pornography to her, for her to then act out what had been depicted.32 62 The complainant gave evidence that there was an occasion at the Tranmere house when she was 14 or 15 years of age when a group of the accused’s friends who had been out together that evening came over. Those people had been drinking, and RC, one of those friends, sat in a beanbag next to the complainant and started chatting to her. The accused became jealous and asked them all to leave, which they did. The accused appeared upset she had spoken to RC and asked her what they had been talking about. 63 She and the accused were both drunk, and some sexual activity was initiated. Soon after, the complainant was sitting on the lounge naked from the waist down. The accused was kneeling in front of her. 64 The complainant gave evidence that the accused grabbed an empty beer bottle that he had finished drinking and inserted the neck of the bottle into the complainant’s vagina, then pulled it out. The complainant said she was shocked, upset and scared, and although he was angry at her having spoken to RC, she had not expected him to do what he did. Whilst she could not now recall what was said at that stage, she believed it was a punishment for having spoken to RC.33 65 The complainant explained why she felt that she couldn’t leave: 34 Q What was your relationship like with your mother. A I didn't have any relationship with my mother. Q Given the sorts of things you've described and the terrible things that you were experiencing, why didn't you just simply leave. A I didn't, I was scared of Dryden, he psychologically got so far under my skin he would tell me no-one else cared about me, no-one was there, and to be honest it was true, because my mum she didn't talk to me, she didn't see me, my dad didn't mind that I was there because he didn't have to raise me, and I believe that to be true, and that was the only place that I had anywhere, you know, a permanent roof over my head, and anyone to be looking after me when I couldn't look after myself. Q Did you have any other relatives at all who you could turn to at that time. A No, I don't have a very big family, I only had my grandparents and my mum and stepdad growing up, and when I moved out of mum's house my mum cut me off and my grandparents didn't speak to me because when I was growing up my mum and dad fought for my sister and I, through court, our young lives, and when I turned to my dad my mum's family cut me off. 32 T 62. 33 T 108-110. 34 T 63-64. -- 15 of 32 -- [2024] SADC 3 14 66 The complainant gave evidence as to the events alleged to comprise count 3, Assault Occasioning Actual Bodily Harm. 67 The complainant gave evidence that she had begun to feel trapped in the situation she was in at the Tranmere house. She was sick of being abused, hurt, tormented, and screamed at, together with being punched and kicked and everything else that was going on. On the day in question, the accused’s best friend at the time, ML, was there at lunchtime. The accused asked the complainant to make them something to eat, and so she cooked chicken schnitzel sandwiches for them both, but deliberately left the accused’s chicken virtually raw. She said that her reasoning at the time was that she thought that the accused might get salmonella, become sick and die, and then maybe she would get a chance to get out of there.35 68 The complainant gave evidence that when the accused bit into his food he realised it was raw, became enraged, picked up a full can of Woodstock drink and threw it with extreme force at her face from about three to four feet away. The can struck her in the face, splitting both her upper and lower lips causing them to bleed and swell. The accused got up and came at the complainant, so in fear, she jumped over the lounge, ran through the kitchen and laundry into the bathroom where she locked the door. The accused kicked the door in, and as the accused initially grabbed her, the complainant saw through the window that ML was leaving the property. The accused then threw the complainant into the bath and repeatedly punched the complainant to the head and body. The complainant said that although she had turned 15 at the time of that assault, she could not place what time during the remainder of the year this occurred.36 69 Later, in cross-examination the complainant was asked why, if she had in fact been injured as she had said, she did not seek medical attention. The complainant responded that she was unable to, as the accused would never get her medication or take her to get medical attention for any of the injuries she had sustained throughout her time with him.37 It was clear from the evidence that the complainant had no driver’s licence, no money of her own, and no other mode of personal transport. Nor did she have any other family member that she could have realistically secured assistance from. 70 The complainant gave evidence that in early 2006 she became pregnant with the accused’s child.38 When she told him, the accused became fearful that he would get into trouble because of it, told her that she needed to get an abortion, and offered her $1000 cash and a ski trip after she had the abortion. The accused’s 35 T 65. 36 T 67. 37 T 152-153. 38 T 83. -- 16 of 32 -- [2024] SADC 3 15 sister, Stacey, also told the complainant to get an abortion and booked the complainant into an abortion clinic.39 71 On the day of the scheduled procedure, the accused took the complainant to the abortion clinic for the procedure. Whilst the complainant did not want to do it, she felt that she had no choice. However, the complainant said that when she was there for the procedure and went through for counselling immediately prior to the abortion, she told the counsellor that she was not, in fact, going to have the abortion, and she did not undergo the procedure.40 72 The complainant gave evidence that after she refused to have the abortion, the accused’s attitude to her worsened with him becoming rude and horrible to her, but that he still attempted to persuade her to have an abortion by offering her further gifts.41 73 The complainant gave evidence as to the events alleged to comprise count 4, the second charged offence of Assault Occasioning Actual Bodily Harm. 74 At some stage, the accused had started working with the complainant’s father at her father’s adult bookshop business. At this time the complainant was about five months pregnant, so it was around mid-2006. On the day in question, the accused was working at the bookshop. The complainant was in the back-room office, on the computer. A message came through to her from SB, SB being a male mutual friend of the complainant and the accused. The message was ‘Hey, how are you?’. The complainant described what happened in the following way: 42 A … I received the message from (SB), Dryden had a look at the screen and saw the message from (SB) and became enraged, he was in a jealous rage, he grabbed a hold of me and started beating me up, essentially. When we were in the front of the shop he threw me down and tried to kick me in the face, and when he did that I put my hands up to protect my face, I was in the foetal position on the ground, and he's booted me in the left wrist resulting in a break of that left wrist and tendon damage and soft tissue damage. Q So, did Mr MacDonald tell you why he was angry at you receiving a message from your friend, (SB). A I wasn't able to speak to other males the entire time of the period of time I was with Dryden at his house and so forth. Q You mentioned to begin with that he started to beat you up, what did he do exactly. A He grabbed a hold of me and he punched me and he was just grabbing me and throwing me around and then when I was on the ground he kicked me, he kicked me in the stomach, not the actual lower part of my stomach, but he kicked me more 39 T 91. 40 T 70, T 82. The pregnancy advisory pamphlet from the day was tendered as P1. 41 T 70. 42 T 98-99. -- 17 of 32 -- [2024] SADC 3 16 around my ribs, and I was then in the foetal position and then he's tried to kick my face and I put my hand up and that's when I got the injury on my wrist. Q You've just extended your forearms forward, bent at about your midriff level. A Like this (INDICATES). Q Yes, covering your face with your fists clenched, is that correct. A Yes. Q And is that the position that you were in when you were kicked. A Yes. Q And I think you said that he kicked your left wrist, is that right. A Yes. Q After that had happened what did you do. A I had a complete meltdown, I was terrified, also in a lot of pain. Dryden rang my dad to come and get me because I was causing a scene inside the shop, where it was a public space, people could come in at any time, so he called my dad to come and take me back to dad's house. Q Is that what happened. A Yes, shortly after dad arrived and took me back to his house. 75 The complainant said that although she was in considerable pain, she was also very concerned about her pregnancy, and did not realise at the time that her wrist was broken. Accordingly, she did not seek medical treatment until much later when, even after she had purchased a wrist brace from the chemist, the pain did not ultimately resolve on its own.43 She subsequently attended her GP, saw a Dr Nair and got x-rays.44 76 Medical records were tendered from the Parafield Gardens Medical Clinic, indicating that on 31 January 2007, the complainant attended and consulted with Dr Nair, providing a history that she had hurt her left wrist six months previously when she had blocked a kick from her ex. X-rays confirmed a fracture of the ulnar tip of the wrist, possibly consistent with having been sustained six months prior.45 77 The complainant stayed with her father for a time, then returned very briefly to the accused’s house, and made a plan to move herself and her things out permanently. The complainant gave evidence that she believed that the accused would never knowingly permit her to leave, so at a time when the accused was 43 T 101. 44 T 101. 45 D1. -- 18 of 32 -- [2024] SADC 3 17 absent from the house at work, with the help of a female friend, JH, she moved all her things out and returned to live permanently at her father’s house.46 78 The complainant gave evidence that the accused’s attitude towards her was very changeable. At times he would be rude and horrible, but at other times he would be nice. Shortly after, the complainant’s father sold the adult bookshop business to the accused but made it a condition of sale that the accused provide $3000 for the baby, so from time to time the accused would take the complainant shopping for items for when the baby was to be born. The accused’s conduct towards the complainant continued to vary and be completely unpredictable.47 79 The complainant gave evidence that the accused attended the birth of the child, and the same conduct occurred even then. The complainant said she was quite sick immediately after the birth, and when she was first given the child to bathe, the accused stood over her shoulder and said, ‘you’re not going to be an arsehole’s mother’. The complainant said that soon after the birth she secured a share house with a female friend, and she never went back to live with or have any kind of relationship with the accused. The accused’s attitude to her was distant and angry.48 80 The complainant gave evidence that some sporadic social media contact continued over the years, and a bundle of messages reflecting Facebook Messenger communications between the accused and the complainant from 2009 to 2020 were tendered.49 81 Many of the entries involve the accused making generalised apologies for his very poor, yet unparticularised, conduct during the earlier relationship with the complainant. Some messages appear to address whether there was violent assault or not during the relationship, and whether the contested anal intercourse occurred. 82 In the course of a very long message by the accused to the complainant on 9 February 2009, he says: 50 I don’t understand why I treated you the way I did, and it scares me. I think maybe I have a problem though I have never been violent with a woman b4. I don’t want to ever be again. Do you think I should talk to someone about it? 83 The complainant responds with a number of messages indicating she wants the accused to stay away from her. 84 The messages indicate that the accused contacted the complainant about six months later in August 2009, asking if she missed the $100 a week which he had stopped paying for their child, but said he would resume the payments if the 46 T 102-103. 47 T 103-106. 48 T 106. 49 P5. 50 (Punctuation added) Transcript of P5 at p 3. -- 19 of 32 -- [2024] SADC 3 18 complainant let him see their child. The complainant eventually responds saying that she doesn’t want the money, variously explaining she now understands what he did to her and lists her grievances with what he did to her as a child, including beating her. The accused reacts angrily and does not address the specific allegation of beatings.51 85 In a further Messenger exchange, which the complainant puts at about 2016- 2017 due to the reference to the passage of time therein,52 the following conversation is recorded: The complainant: Really… cos before u would bash me and I didn’t have a say…. Would be nice to hurt you for once.53 The accused: I grew up. And stopped being a dick to people I cared about.54 The complainant: U were already grown. U were my age now…then this was like 12 years ago… and now you are 100.. you do the math. Cat got your tongue mother fukkaaa. Thans what I thought.55 The accused: And I’ll continue to keep showing u I’m a different guy now. U see it in my eyes. I’m genuine.56 The complainant: What? 86 The complainant gave evidence that she was asking the accused to talk about the things he did to her, so that she could one day get justice for what he had put her through.57 Later in the messages the complainant specifically put the allegations surrounding count 3 to the accused:58 The complainant: And I tried to kill u with raw chicken ha ha ha. Believing if you took one bite u would die. I was such a child. U smashed my face with a can and bashed me in the bath and (ML) left. The accused: Shit was toxic hell. The complainant: House from hell. Living with you when I was a kid was actual house of horrors. If it was a movie people would be sickened by it. Especially at Craigmore when you would just do shit for the sake of it. You were hell twisted. The accused: U think I was mentally ill? 51 Transcript of P5 at pp 4-8. 52 T 122. 53 Two messages. 54 Two messages. 55 Four messages. 56 Three messages. 57 T 126. 58 Transcript of P5 at p 14. -- 20 of 32 -- [2024] SADC 3 19 The complainant: How could I know- I should have been in school – you were already an adult – you would know more than me. I only just grew up recently to be able to think properly on my own. The accused: Sometimes I wonder. Its like it was another person. Like I’m outside looking in. I am sorry (the complainant’s name). 87 The Facebook messages also show the complainant then also putting the instance of anal intercourse to the accused:59 The complainant: Do you remember getting me drunk and then raping my ass when I was out of it and barely able to move and making me do sexual acts for food or shoes or things I needed? The accused: Very sorry that I hurt u when all u needed was someone to look out for u. The complainant: Sometimes I forget I am talking to that same person and then I wish it upon you but I don’t want to put that energy into the world around me because that’s toxic too so I get stonewalled by what I do to get past that. The accused: Terrible shameful thing to manipulate some in need. I don’t know who that person was. But I don’t like him. 88 The complainant then remonstrated with the accused, citing both his sexual conduct and his violence towards her, to which the accused responded, ‘I love u and (the child’s name) and I’m sorry for everything I’ve put you through’.60 89 In cross examination, the complainant agreed that in a statement dated 28 September 2021 she said that she had sought medical attention two weeks after receiving the broken wrist at the Parafield Gardens Medical Centre but responded that she had ongoing issues with her wrist, which she initially dealt with by getting a wrist brace, which could have been in the two weeks after the initial injury. She accepted she had the scan of her wrist some months later in February 2007. She accepted that it was hard for her with dates back at that time as she was so young, and it was such a long time ago. She was unable to say whether as at the time of a GP attendance on 24 August 2006, at which time she told the GP that she was living with her father, depressed and in need of support, whether as at that time her wrist had been broken. She repeated that while she agreed it was hard for her to pinpoint dates, she was living with the accused until shortly after he broke her wrist, and she remembers that happened at about the five month point of the pregnancy. She said that in respect to dates and months at that time, it felt as if every day was a blur. She said that she would not have seen the doctor often as she had no way to get to the doctor by herself, the accused never would have taken her there in respect of what he had done to her, and her father never took her to the 59 Transcript of P5 at pp 14-15. 60 Transcript of P5 at p 15. -- 21 of 32 -- [2024] SADC 3 20 doctor. She explained that her father had an ongoing relationship with the accused, separate to her, and never protected her against the accused.61 90 When pressed about not mentioning the broken wrist to any doctor until 2007, the complainant responded that she had remained petrified of the accused and consequently, during the time they lived together and while she was pregnant to him, she would never have said anything to anyone about what he did to her.62 91 In cross examination, the complainant maintained her evidence about when the relationship with the accused commenced,63 when she discovered she was pregnant,64 the changeable behaviour of the accused after the child had been born,65 the circumstances of originally meeting and then moving in with the accused,66 and how if she was crying and screaming enough, the accused would just take the complainant back to her father’s house.67 She maintained her evidence about the range of sex acts that she had given evidence-in-chief about,68 but conceded it was hard to remember specific dates and times.69 92 In cross-examination, the complainant said that the reason she did not go to the police even when she was periodically left at her father’s house, was that she felt unsupported by her father and petrified of the accused, at times thinking that he could kill her.70 93 The complainant denied a suggestion in cross-examination that she had sex with the accused at Christmas 2008.71 94 The investigating officer, Detective Brevet Sergeant Molloy was then called to give evidence. 95 Detective Brevet Sergeant Molloy had been assigned the matter in August 2021, and in September 2021 received a statement from the complainant dated 28 September 2021 taken by another officer. She contacted the accused, who attended a police station on 22 December 2021, and was ultimately arrested and charged at that time.72 96 Detective Brevet Sergeant Molloy gave evidence that she contacted potential witnesses mentioned in the complainant’s statement CH, PW, ML, SB, a person I will call RD, and the accused’s daughter from a prior relationship mentioned 61 T 130-133. 62 T 134 and 137. 63 T 139. 64 T 141. 65 T 142. 66 T 142-143 67 T 144-145. 68 T 147-149 69 T 149. 70 T 145. 71 T 142. 72 T 163-165. -- 22 of 32 -- [2024] SADC 3 21 earlier in these reasons, and none of those persons were prepared to assist police or provide the police with a statement. Detective Brevet Sergeant Molloy was unable to locate ML or TW.73 97 Detective Brevet Sergeant Molloy gave evidence that she obtained the complainant’s school records for the years 2003 and 2004, which were then tendered.74 98 The complainant’s school records show that she was a good student with very few days absent throughout 2003. The records show that for the first three months of 2004 her attendance and performance started to decline. Her report to June 2004 shows her attendance, work, and attitude had dramatically declined, accompanied by substantial absenteeism. The June to September 2004 report indicates no school attendance at all.75 This is consistent with the complainant’s evidence as to when she started her relationship with the accused, moved in with him, and stopped attending school as a consequence. 99 The accused gave evidence on oath. 100 The accused gave evidence that he was 45 years old at the date of trial, having been born in May 1978.76 101 The accused gave evidence that he first met the complainant in September 2004 but that he did not commence a relationship with her until nearing Christmas 2004, although at Christmas they were not yet living together. 102 The accused gave evidence that, at that stage, he was living in Craigmore with his sister, Stacey. At Christmas that year he introduced the complainant to his family. He agreed that the photo tendered as P4 was indeed of he and the complainant taken at a New Year’s Eve party at the end of 2004.77 103 The accused gave evidence that his relationship with the complainant continued throughout 2005, and that the complainant fell pregnant to him in March 2006, when she was still 15 but about to turn 16. Their child was born in November 2006, at which time he was no longer residing with the complainant. 104 The accused gave evidence that, nonetheless, he continued to see the complainant, and communicated with her by way of phone, text or Facebook over the years in relation to his son. He said he paid child support.78 73 T 168-172. 74 P6. 75 P6. 76 T 180. 77 T 180. 78 T 181. -- 23 of 32 -- [2024] SADC 3 22 105 The accused said he had sex with the complainant one further time, on Christmas Day 2008 after a Christmas celebration, when they subsequently went to his house.79 106 The accused denied that he had had sex with the complainant when she was 13, or that he ever went to the Hilton Hotel with her.80 107 The accused gave evidence that he did meet the complainant outside ML’s house, and he did invite the two girls to come with him and TW for a drive. He said they obtained soft drinks at the service station which they then dropped back at ML’s house, then took the girls back to his Craigmore house. No sex occurred that day.81 108 The accused said that his sister was living with him at that time, but she moved out, he was uncertain when, but it was about two months prior to his moving to a new property at Tranmere on 7 August 2005. 109 The accused gave evidence that the complainant began to stay with him at his house more often than not, otherwise she was at her father’s house. He said she stayed at his residence from ‘around the Christmas/new year break’ (2004-5) which he clarified to indicate: ‘I suppose, I mean, in the January period’.82 110 The accused agreed that penile-vaginal intercourse, fellatio and cunnilingus occurred between he and the complainant, indicating that the first sexual act occurred ‘around Christmas’ 2004.83 111 The accused denied that any anal intercourse occurred, nor was there any occasion when he either urinated on the complainant or inserted a beer bottle into her vagina.84 112 The accused gave evidence that he did recall a chicken schnitzel dinner, and ‘her being surprised when it was raw’ but that he neither chased her into the bathroom nor beat her on that occasion.85 113 The accused gave evidence that in late 2005 or early 2006 he purchased 50% of the complainant’s father’s adult bookshop. The accused said that he did not remember an occasion when he caught the complainant using MSN on the shop computer, and that he denied kicking the complainant to the head area and connecting with her left wrist. He agreed that later, after the birth of the child, she did complain about having a problem with her left wrist.86 79 T 182. 80 T 182. 81 T 183-184. 82 T 185. 83 T 185. 84 T 186. 85 T 187. 86 T 187-188. -- 24 of 32 -- [2024] SADC 3 23 114 The accused denied asking the complainant to have an abortion,87 and denied videotaping he and the complainant having sex.88 The accused said that whilst they had shouted on a number of occasions, he had never been violent towards the complainant and had never struck her.89 He said that the relationship simply had its ups and downs, like any relationship; that there was romance and there was arguing.90 115 The accused gave evidence that his friend ML eventually, at some time between 2006 and 2007, bought the other 50% of the adult bookshop from the complainant’s father. 116 The accused gave evidence that he responded to the complainant’s Facebook messages in the way he did as ‘it was difficult to keep (the complainant) happy, she would get angry and refuse contact with (their son). It was the path of least resistance to appease her, to keep her happy, to tell her what she wanted to hear seemed to get me closer and for the ability to be able to see my son’.91 117 In cross examination, the accused repeated that he was never physically violent with the complainant on any occasion, nor did he ever kick or punch her, spit or urinate on her, nor did he throw a can of Woodstock drink at her nor have anal intercourse with her or insert a bottle into her vagina. He agreed he possibly had had a can of Woodstock but had never given the complainant Maker’s Mark whiskey. The accused denied that he ever had a short or bad temper, nor would he lose his temper if the complainant did not do what he wanted. He denied the alleged assaults.92 118 In further cross-examination, the accused said that he could honestly not recall what they argued about.93 119 In cross examination about the Facebook messages, the accused said he could not recall why he had referred to himself as having been a ‘dropkick’ during the relationship.94 120 The accused said that he was uncertain when it was that he first came to the realisation that he should not have been having a relationship with a person the complainant’s age, whether it was during the relationship or afterwards, or whether it was in response to ML’s comments to him at the Hilton Hotel. He said he did not recall attending the Hilton Hotel with the complainant, and he disagreed that 87 T 188. 88 T 190. 89 T 190. 90 T 191. 91 T 191. 92 T 194-195. 93 T 196. 94 T 198. -- 25 of 32 -- [2024] SADC 3 24 he stayed there in room 1411 with the complainant for her 14th birthday. He was uncertain whether he had an Xbox at the time.95 121 When the Facebook message from the complainant to him (the accused) raising the raw chicken dinner, and raising that he had smashed her face with a can and subsequently bashed her in the bath as ML left the premises, were put to the accused, and the accused was asked why he had responded ‘Shit was toxic hell’, the accused replied he was ‘uncertain’ why he had responded in that way. When asked why he had not denied it, he responded that he didn’t deny it as when he would deny the complainant’s accusations, she would get angry with him and not let him see the child.96 122 The accused denied that he was either acknowledging or admitting that he had anally raped the complainant, nor made her perform sexual acts for food and other necessities in his apologies to her on that topic.97 123 The accused agreed he knew a person called RC who was a friend of his at the time. The accused said he had no recollection of an occasion at Tranmere when he became jealous that RC was speaking to the complainant, and he did not believe that he threw he and others out of the house because of it. The accused denied penetrating the complainant with a bottle consequently.98 The accused denied filming the complainant having sex with him or using it to have leverage over her.99 124 The accused said that when he first met the complainant and CH, they had told him they were 16. When in the context of driving them to his own house that very first day, he said it was only because his friend TW fancied CH, and when he was asked whether he fancied the complainant at that stage, the accused replied ‘I don’t recall’.100 He also ‘did not recall’ whether he was hoping to have sex with the complainant that day, nor did he recall whether he was on the lookout for sex that day.101 125 The accused denied giving the complainant alcohol frequently during their relationship, and denied that she was often drunk at his house.102 126 The accused agreed that in a Facebook message to the complainant on the 10th of August 2009, in response to her allegations of abuse, he had said: My dads a dv8 we both know that and as for the rest u fucked me the first day we met after lying about ur age u then proceeded to be the horniest kinkiest chick I’ve ever been with … look we both no how it really went down so stop the charade… (Emphasis added) 95 T 199-200. 96 T 202. 97 T 203. 98 T 205. 99 T 206. 100 T 208. 101 T 208-209. 102 T 209. -- 26 of 32 -- [2024] SADC 3 25 127 The accused conceded this was inconsistent with his sworn evidence-in-chief in this court when he had given evidence that he had absolutely no sexual interaction with her on the first day they met in September 2004, and that he had not had any form of sexual intercourse with her until months later at ‘around Christmas’ 2004. The accused ultimately said that beyond that he might have been upset at the time, he could not explain the inconsistency of the admitted Facebook message with his subsequent sworn evidence at trial.103 128 In further cross-examination, the accused conceded that when the complainant got pregnant, the accused definitely had a discussion with the complainant about what she should do, but the accused could ‘not recall’ what his position was as to whether she should have an abortion. He said his sister Stacey had involved herself in the issue, but not at his behest. He agreed he accompanied the complainant to an abortion clinic for the termination, but did not recall whether at that stage he was encouraging her or pressuring her to have the abortion.104 Addresses 129 The primary thrust of the prosecution’s address was that the complainant was a good witness who should be believed. The prosecution submitted that whilst there were some wholly understandable issues for the complainant with exact dates and times, the complainant frankly conceded and explained those issues in terms the court should accept. The prosecution put that the key events about which the complainant gave evidence concerning all the primary the contested issues, would have been, and were, burnt into her memory. Her evidence was convincing. 130 The prosecution put that while the complainant’s evidence was clear, detailed and had the ring of truth, the accused’s evidence was deliberately vague, evasive and at the end of the day, untruthful. The prosecution put that the complainant’s difficult circumstances gave the accused the opportunity to commit the contested matters, and that both the school records and the Facebook messages supported the truth of her sworn evidence. 131 The prosecution submitted that the complainant’s evidence be accepted and put that the prosecution had proven its case. 132 The primary thrust of the defence address was that, in an ‘oath against oath’ case such as this, the apparent discrepancies in the complainant’s evidence are such that the complainant should not be relied on to establish the contested matters beyond reasonable doubt. As one example, the defence pointed to the complainant’s evidence as to when she was pregnant, where at least at one stage she wrongly said that she was pregnant in 2005, when it was clear that she was not in fact pregnant until 2006. 103 T 214. 104 T 221. -- 27 of 32 -- [2024] SADC 3 26 133 The defence argued that the complainant’s failure to complain to any doctor about her wrist injury until 2007 threw immediate doubt on her evidence as to the cause of the injury and hence count 4. The defence put that the accused’s wish to keep the complainant happy and see his son, explain his apologetic Facebook answers to her accusations of assault, violence, and anal intercourse. The defence gave other examples of ‘discrepancies’ as to the complainant’s dates and times, at one stage highlighting where on more than one occasion the complainant had said that things were a ‘blur’. 134 The defence reminded the court that they were suffering a considerable forensic disadvantage and put that there was insufficient evidence to find the contested matters proven against the accused. Consideration 135 The court has carefully considered all the evidence given and tendered in the case and has re-read the evidence in its entirety. 136 The court has been assisted by two clear and concise addresses by counsel. The court has regard to all the submissions of counsel but will not set them all out. They have all been carefully considered. 137 The court bears in mind that due to the passage of time the accused indeed suffers a consequent forensic disadvantage and applies the applicable principles to its consideration of the case against the accused. 138 As both counsel argued in their final addresses, it is true that the prosecution case relies almost entirely on the evidence of the complainant. Further, the accused gave evidence on oath in his own defence, which must also be given the fullest consideration. Accordingly, a close and careful examination of the oral evidence is crucial. 139 It must be said that the complainant was an impressive witness from the outset. She gave evidence in a clear and confident manner. Her demeanour and presentation were matter of fact. She was consistent as to the narrative of what was a long, complex, and traumatic series of alleged events describing a relationship between herself as a young girl and an adult man, over a period of two years, nearly 20 years ago. 140 The complainant’s evidence was clear and consistent over time in nearly every regard, with a single exception to which I will later return, concerning all the allegations surrounding the particulars of the Sexual Abuse of a Child offence and the facts and surrounding circumstances comprising the two charges of Assault Occasioning Actual Bodily Harm. 141 Yes, there were some occasional inconsistencies as to exact dates and times, but those are entirely what would be expected after the passage of time and -- 28 of 32 -- [2024] SADC 3 27 considering the significant number of matters needing to be recalled from some time ago. 142 In the court’s view, it would have been very difficult to consistently maintain a fabricated story of the extended, detailed, and striking nature reflected in the events recounted by the complainant. 143 The accused gave evidence in a straightforward manner. He denied the contested allegations against him. His demeanour and presentation were matter of fact. However, his repeated inability to recall matters put to him where a credible substantive answer would have been difficult to provide to the matters raised with him, was a concern. 144 The accused gave no account of how or why the relationship between he and the complainant ended, nor on his version of the relationship, was there any real reason why it should have ended. On his version of events, it was a normal relationship with some ups and downs, with an entirely unremarkable consensual sex life, involving not a single instance of domestic violence or any type of manipulation or poor behaviour on his part. He was supporting her, paying for everything, and he could not recall whether he even wanted her to have an abortion. 145 The complainant in her Facebook messages made numerous direct allegations of poor behaviour, violence and sexual offending by him over time, indeed akin to what has been alleged at trial, and his regular apologies and consistent admissions of generalised very bad conduct towards her during the relationship are entirely inconsistent with his description of their relationship at trial. 146 Regrettably, his explanation that he was just agreeing to everything to placate her, rang decidedly hollow from several perspectives. 147 The court has carefully considered whether any of the accused’s responses constitute specific admissions. Further, whether they could constitute admissions by silence on the basis of a failure to deny allegations when on an objective analysis, one would have expected them to be denied if, in fact, they were denied. The court applies the principles per the authorities conveniently recently set out in the Court of Appeal decision of R v Spencer.105 As the Court of Appeal said: It is not that what is said to an accused can of itself be evidence against an accused, but his response may be if his silence or conduct may amount to an admission of the truth of what was said. If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding his denial, could infer 105 R v Spencer [2019] SASCFC 70 at [35]-[38]; R v Smith (1897) 18 Cox CC 470; R v Grills (1910) 11 CLR 400; R v Salahattin [1983] 1 VR 521; R v Kamleh [2003] SASC 269; Woon v The Queen (1964) 109 CLR 529 at [541]. -- 29 of 32 -- [2024] SADC 3 28 that he acknowledged its truth in whole or in part, it would accord with the accepted practice to exclude the statement altogether. Whether an inference can be drawn depends on the coalition of a number of facts. They include questions such as whether the accused heard or received the subject statement, whether he or she understood it and whether the facts contained in the subject statement were within the personal knowledge of the accused. The next step is whether the circumstances were such that a dissent would, in ordinary experience, have been expected by the accused. The issue concerns an assessment of human behaviour which is best made by the jury. 148 At the end of the day, perhaps erring as a matter of caution on the side of the accused, the accused does not unequivocally accept any specific allegation made against him, with the consequence that the court is not prepared to accept that any of the accused’s statements constitute a specific admission of any of the contested issues, and again perhaps erring as matter of caution on the side of the accused, nor that the accused in the totality of the circumstances is making an admission by silence in the face of the allegations. 149 The accused could not, however, explain his previously inconsistent Facebook answer about when he first had sex with the complainant. The Facebook answer was given angrily, sternly, and spontaneously in the heat of an exchange with the complainant, rather than in the careful and seemingly considered way he responded to the other accusations that she made during Facebook exchanges. The tenor of it was ‘lets get real, we both know exactly what happened’, and was coupled with his allegation that they both knew she had initially lied about her age saying she was 15. In context, it gives the distinct impression that the accused was blurting out, in anger, what he clearly believed at the time. The accused has not been able to explain the inconsistency with his evidence at trial that they did not have sex until months after they first met. As such, in the court’s view, the unexplained inconsistency casts doubt on both the credibility and reliability of the accused’s subsequent inconsistent sworn evidence in court. 150 The accused’s claimed inability to recall his attitude to whether the complainant should abort what was, after all, his own child is simply unbelievable given the obvious significance such an event would have to his life. 151 Overall, the accused was not a convincing or compelling witness. 152 The school records tendered are entirely consistent with the complainant’s evidence that she met the accused in February 2004, started seeing him more regularly between then and April 2004, at which time she commenced having sex with him and neglecting her schoolwork, leading to her, shortly after that, effectively moving in with him and abandoning school by around or just after May 2004. The school records show the complainant’s attendance and performance dropping significantly between April and June 2004, and her failing to attend at all after 30 June 2004. The records are considerably less consistent with the accused’s -- 30 of 32 -- [2024] SADC 3 29 evidence that the two met for the first time in September 2004 and did not have sex until Christmas 2004. 153 Standing back, the narrative told by the complainant was a complex, chilling and ultimately, compelling and entirely convincing account of the grooming, manipulation, and control of a young girl by an older man over the course of two years. It had the distinct ring of truth to it. 154 Carefully considering all the evidence, and considering but notwithstanding the accused’s evidence, the court finds that the complainant was an entirely credible and honest witness whose evidence was entirely truthful, whose evidence with one exception was also completely reliable and accurate as to the contested allegations. 155 The one exception was the contested particular of anal intercourse. The complainant’s evidence was extremely brief and unparticularised as to that event, which she said occurred on an occasion when she was extremely drunk. Whilst the court finds that the complainant believes it occurred, and it may have occurred, the lack of detail and context, and the limitations on the complainant’s evidence as to the topic, together with a lack of consistency in cross examination on the topic mean that the court cannot find the event established beyond reasonable doubt. After careful consideration, the court however does not find this conclusion casts doubt on the remainder of the complainant’s evidence. Conclusions 156 At the end of the day, with that single qualification, having given all the evidence the closest consideration, including importantly, the defence case and the accused’s evidence, the court finds that the complainant’s evidence was both credible and reliable, and should be accepted beyond reasonable doubt. 157 In relation to Count 1 of Sexual Abuse of a Child, for the reasons discussed earlier the court concludes that there is a reasonable doubt as to contested particular (c). 158 The court finds proven beyond reasonable doubt that contested particular (e) of count 1 alleging the accused urinated on the complainant, in the evidential context of such act occurring immediately after the accused had completed oral sex with the complainant106 did occur as the complainant said it did. As that act occurred by way of the accused urinating on the complainant directly after the culmination of oral sex, the court finds that in the totality of the circumstances, it satisfies both the elements of an indecent assault and an act of gross indecency as set out earlier in this judgment. Accordingly, particular (e) is established beyond reasonable doubt.107 106 As described at T 55 of the transcript, set out earlier in these reasons. 107 It was not suggested that if the facts of the alleged conduct were proven it would not constitute an unlawful sexual act within the meaning of the legislation. -- 31 of 32 -- [2024] SADC 3 30 159 The court finds proven beyond reasonable doubt that contested particular (f) of count 1 alleging that the accused inserted a beer bottle into the vagina of the complainant, in the context of the accused’s anger at the fact that the complainant had spoken to another male person who had earlier attended the house, did occur in the way the complainant said it did. Those actions satisfy the elements of an indecent assault as set out earlier in this judgment. Accordingly, particular (f) is established beyond reasonable doubt.108 160 Count 2 was an alternative verdict to count 1, which is therefore unnecessary to consider. 161 In relation to count 3 alleging that the accused assaulted the complainant occasioning actual bodily harm, the court finds proven beyond reasonable doubt that the accused intentionally and unlawfully applied force to the complainant by deliberately throwing an unopened can of Woodstock alcoholic drink at her with full force from a distance of three to four feet, intending it to strike her, which it did. The application of force was without lawful excuse. The impact caused harm to the complainant by injuring and splitting both her upper and lower lips and causing them to bleed. The court finds count 3 is proven beyond reasonable doubt.109 162 In relation to count 4 alleging that the accused assaulted the complainant occasioning actual bodily harm, the court finds proven beyond reasonable doubt that the accused intentionally and unlawfully applied force to the complainant by throwing the complainant to the floor then beating her, during which while attempting to kick her in the head, the accused’s kick struck the complainant’s wrist as she tried to shield her face. The application of force was unlawful. The impact caused harm to the complainant by fracturing her wrist. The court finds count 4 is proven beyond reasonable doubt.110 Verdicts Count 1 Particular (c) is not established beyond reasonable doubt. Particulars (e) and (f) are established beyond reasonable doubt. Count 2 Alternate count to count 1, hence unnecessary to decide. Count 3 Guilty. Count 4 Guilty. 108 It was not suggested that if the facts of the alleged conduct were proven it would not constitute an unlawful sexual act within the meaning of the legislation. 109 It was not suggested that the facts if established, might not satisfy the elements of the offence of Assault Occasioning Actual Bodily harm. 110 It was not suggested that the facts if established, might not satisfy the elements of the offence of Assault Occasioning Actual Bodily harm. -- 32 of 32 --