[2024] SADC 12

Prosecution: R Counsel: MR C KUMMEROW - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: SGK Counsel: MR J WILSON - Solicitor: WOODS & CO LAWYERS Hearing Date/s: 04/12/2023 to 13/12/2023 File No/s: DCCRM-23-016567 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 SGK Criminal Trial by Judge Alone [2024] SADC 12 Reasons for the Verdicts of his Honour Judge Muscat 16 February 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The defendant is charged with two counts of sexually abusing a child. In relation to Count 1, the child is SA and in respect to Count 2, the child is SJ. SA and SJ are cousins. Each child is the defendant's granddaughter. Verdicts: Not Guilty of each count. Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 34M, 34P, referred to. R v S, DD (2010) 109 SASR 46; R v Duell [1964] QLR 451; R v P, S (2016) 261 A Crim R 329; R v C, CA [2013] SASCFC 137; R v MDM (2020) 136 SASR 360; R v DES [2020] SASCFC 32; Murray v R (2002) 211 CLR 193; R v Schulz (2016) 126 SASR 476, applied. -- 1 of 37 -- -- 2 of 37 -- R v SGK [2024] SADC 12 Charges 1 SGK (‘the defendant’) is charged on an Information with the following offences: Count One Offence Details Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars SGK, between the 1st day of January 2017 and the 31st day of December 2019 at […], maintained an unlawful sexual relationship with SA, a person under the age of 17 years, by inserting his finger or fingers into her vagina on more than one occasion. Count Two Offence Details Sexual Abuse of a Child. (Ibid). Particulars SGK, between the 1st day of January 2017 and the 31st day of December 2019 at […] and […] maintained an unlawful sexual relationship with SJ, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: (a) rubbing her genital area on more than one occasion; and (b) inserting his finger or fingers into her vagina on more than one occasion. Trial by judge alone 2 The defendant has pleaded not guilty to the charges and has elected to be tried by judge alone.1 Legal principles 3 The defendant is presumed to be innocent of the charges. He is not required to prove anything in his defence. The obligation is upon the prosecution to prove each charge separately and to do so beyond a reasonable doubt. The prosecution must also exclude as a reasonable possibility any matter raised by the defendant that might affect proof of either charge. 1 Notice of Election to be tried by Judge Alone made pursuant to s 7(1) of the Juries Act 1927 filed 12 September 2023. -- 3 of 37 -- [2024] SADC 12 2 Elements of the offence 4 The offence of sexual abuse of a child is comprised of the following elements, each of which must be proved beyond reasonable doubt by the prosecution: 1. The defendant was an adult throughout the relevant period particularised in the charge.2 This is not in dispute. The defendant was born on 14 April 1947.3 2. The alleged victim was under the age of 17 years throughout the relevant period encompassed in the charge.4 This is also not in dispute. SA was born on 11 April 20095 and SJ was born on 17 February 2007.6 3. There existed a relationship between the defendant and the alleged victim. This is not in dispute as the defendant is SA and SJ’s grandfather and they had regular contact with each other. 4. The defendant engaged in an unlawful sexual relationship with the alleged victim. An unlawful sexual relationship is a relationship in which an adult engages in two or more sexual acts with or towards a child over any period alleged in the particulars.7 An unlawful sexual act means any act that constitutes, or would constitute (if particularised), a sexual offence.8 The prosecution has alleged sexual acts in the particulars which would amount to the offence of unlawful sexual intercourse with a child under the age of 14 years9 in relation to SA, and aggravated indecent assault10 and unlawful sexual intercourse with a child under the age of 14 years in relation to SJ. The prosecution must prove that the defendant committed two or more of the particularised unlawful sexual acts against the alleged victim. 5. The defendant knowingly maintained an unlawful sexual relationship with the alleged victim. In this context ‘maintained’ has its ordinary meaning; that is, ‘carried on’, ‘kept up’, or ‘continued’. In other words, there must be some continuity of sexual conduct and not merely isolated sexual acts. For example, it would not be sufficient if two or more sexual acts occurred on the same occasion and there were no other sexual acts beyond that occasion. 2 See s 50(12) of the Criminal Law Consolidation Act 1935. 3 P10 Agreed Fact 5. 4 Section 50(12) of the Criminal Law Consolidation Act 1935. 5 P1 Agreed Fact 1. 6 P10 Agreed Fact 3. 7 Section 50(2) and (5). 8 See definition of unlawful sexual act in s 50(12). 9 Section 49(1) of the Criminal Law Consolidation Act 1935. 10 Section 56(1)(b) of the Criminal Law Consolidation Act 1935. -- 4 of 37 -- [2024] SADC 12 3 Issue in dispute 5 The defendant is alleged to have sexually abused his granddaughters, SA and SJ, separately and on different occasions. The sole issue in dispute is whether the alleged sexual abuse occurred. The prosecution case Background 6 The defendant and his wife (SW) have two sons, (SS) and (SD). Both of the defendant’s children have children of their own. SA is the youngest child of SD and his wife (SN). SJ is the second born of SS’s and his wife’s (SDM) children. 7 At the relevant time, the defendant and his wife lived in a converted shed on their son’s (SD) Adelaide Hills property. 8 SD and his family lived in the dwelling he and his wife had built adjacent to the shed. The two residences were in very close proximity to one another, and SA would constantly be at her grandparents’ residence. 9 SJ’s family, who lived in suburban Adelaide, would visit SD and in turn the defendant at the Adelaide Hills property. 10 The defendant had a hobby of drawing. He would do his drawings from images downloaded onto his iPad. He would draw at a table in the enclosed veranda area at the front of the residence. 11 It was not uncommon for SA to sit on the defendant’s lap when he was drawing. Usually, the defendant’s wife was also sitting at the same table. 12 SA has alleged that the defendant interfered with her vagina while she was sitting on his lap when her grandmother was not physically present at the table. 13 SA also later recalled being sexually interfered with by the defendant when riding on a quad bike with the defendant around their property and specifically down by the creek. 14 SJ alleged that she was similarly interfered with by the defendant when being babysat by her grandparents at SJ’s home, with some abuse occurring at the defendant’s home, including on a single occasion when riding with the defendant on the quad bike around the Adelaide Hills property. 15 SA was allegedly sexually assaulted on many occasions, while SJ alleged a much smaller number of specific or identified occasions that the defendant sexually assaulted her. This is clearly explicable on the basis that SA had much greater contact with the defendant than SJ, as SA lived on the same property as her grandparents. -- 5 of 37 -- [2024] SADC 12 4 16 The prosecution relied on similarity of account or improbability reasoning to support the credibility of SA and SJ. I will return to address this later in these reasons. 17 The defendant was interviewed by the police and denied engaging in the alleged sexual conduct. SA’s evidence 18 SA’s evidence was comprised of a prescribed interview conducted by Senior Constable Brennan on 20 August 2022,11 and admitted pursuant to s 13BA(3) of the Evidence Act 1929 and evidence given by her in court on identified topics as permitted under s 13BA(5).12 SA’s prescribed interview 19 SA said the sexual abuse always occurred at the defendant’s home. 20 SA said that the defendant would touch her vagina when she sat on his lap. She said that she did not know what to do when this was occurring, so she would just sit there. 21 SA said that she was usually touched in this way while sitting at the table in the veranda area with the defendant. SA said that the touching would occur whenever her grandmother (SW) was not present.13 SA said the defendant would stop touching her as soon as her grandmother returned. 22 SA explained the touching would involve the defendant placing his hands inside her pants and her underwear and feeling her vagina. She described being uncomfortable when she was being touched. 23 SA said that the defendant felt ‘inside’ her vagina and that sometimes he placed his fingers inside her vagina, which caused her to experience pain but because she did not know what to do, she ‘just hid the pain’. 24 SA said that the defendant never said anything to her while he was touching her vagina and that once he stopped, he ‘would just go back to normal’. SA said that she was too scared to say anything and would simply look down when the defendant was touching her. 25 SA said this touching occurred ‘over and over again’. Later in her interview, SA said that it probably happened ‘every single day’ because she would see her grandparents every day. When specifically asked how many times she was touched in this way, SA said ‘I don’t know, but it’s over 50 I reckon. Maybe like at least 50’. 11 Exhibit P1. 12 Rulings 6 December 2023. 13 SA said that her grandmother was ‘like getting a cup of tea or something’. -- 6 of 37 -- [2024] SADC 12 5 26 SA said that the last time she was abused by the defendant was on an occasion when she was sitting on the couch at her grandparents’ house, and he leaned over and started to feel her vagina. SA said that she thought her grandmother was in the bathroom when this happened. 27 SA said she believed she was aged eight or nine years when she was being abused and that the abuse stopped in 2018. 28 SA said that she disclosed the touching to her mother, however SA told her mother that the defendant was drunk and that ‘it was an accident … he didn’t really do anything, he just accidentally did it … ’. SA said that she told her mother that it was an accident, even though she knew the defendant had touched her deliberately. SA said she told her mother it was an accident because she did not want the defendant to ‘get hurt’. 29 SA said that after she made this disclosure to her mother about the ‘accidental touching’, she understood that her mother spoke with the defendant’s wife (SW), who in turn raised the matter with the defendant. SA said the defendant then apologised to her (SA), following which the abuse stopped. 30 SA said that she later spoke to her cousin, SJ, about the abuse. SA detailed what they spoke about: [We] were outside of the house, and I was just talking about Poppa and then she, I think she said, yeah, Poppa used to do things to her, and I was, like, ‘What do you mean’? So, ‘Oh, he used to touch me’. I was like, ‘Oh, he did the same thing to me’. And then that was, like 2019 or 2018, late 2018 and then like for all these years we always wanted to tell someone like, we never felt comfortable saying something to someone. So yeah. I think she (SJ) said, um, ‘Poppa used to touch me in my private spot’. And I said ‘Yeah, same, he did it to me as well’. And she’s like, ‘One time he took me behind a tank and just started touching me’. That’s what she said. 31 When SA was asked what prompted this conversation between her and SJ, SA responded: A I think we were talking about Poppa, and we were, like, I don’t know, I think I said something like oh yeah, Poppa, or something, and she said ‘Yeah, I have something to tell you’. I was like ‘Oh what is it’ and she said, ‘Poppa used to touch me’ and I was like shocked for a second. I was like ‘The same thing happened to me’ and then we went into our room and just started talking about it for hours. Q Mm, you spoke for hours. A Yeah, yeah, and then, and then, every like, every time we went over to each other’s house over the years, we kept talking about it. SA’s additional evidence 32 SA gave evidence in court of other instances of being sexually assaulted by the defendant. -- 7 of 37 -- [2024] SADC 12 6 33 SA said that she would go for rides with the defendant on his quad bike. 34 SA described sitting with the defendant on the quad bike and being positioned in front of the defendant when they would ride down to the creek near the dam on the property. SA said that when they reached the creek the defendant would stop the quad bike and ‘put his hands down my pants and put his fingers in my vagina’.14 SA said the defendant had his fingers inside her vagina for 20 seconds before removing his hands from her pants and driving off back to his house.15 SA described this touching on the quad bike as happening more than once and ‘maybe 10’ times.16 35 Under cross-examination, SA agreed that she had not mentioned in her prescribed interview, having been sexually abused by the defendant on the quad bike, nor had she mentioned it in a statement provided to the police on 13 September 2023. SA agreed that she had mentioned being sexually abused on the quad bike for the first time to the police in a statement she provided on 5 December 2023.17 Furthermore, SA agreed that in that same statement she did not mention that the sexual abuse on the quad bike had occurred 10 times. However, in re-examination SA explained that when she had stated in her written statement that the defendant had touched her on the quad bike ‘a number of times’. SA said that in her evidence she stated that the abuse on the quad bike happened 10 times because that is what she had meant by ‘a number of times’ mentioned in her statement.18 36 SA also agreed in cross-examination that when being interviewed she described the defendant as having placed his hands (plural) down her pants. SA agreed that she also said that the defendant had placed his hands (plural) down her pants when providing her statement on 5 December 2023. SA clarified however that the defendant had only ever placed one hand down her pants, and that he had never placed both of his hands down her pants. As I indicated during the course of closing addresses, I have placed no significance on SA’s use of the plural when describing the defendant placing his ‘hands’ down her pants. In my view, that is simply a figure of speech and I accept that SA did not mean to convey by the use of the plural that in sexually abusing her in the manner she described that the defendant had physically placed both of his hands inside her pants at the same time. 37 SA said she was touched by the defendant on one occasion when she was sitting on the lounge. She indicated the lounge in the photographs.19 SA said the defendant was sitting on the right side of the lounge as shown in P2 and that she 14 T 74.27; 76.9 – 19. 15 T 76.20 – 34. 16 T 77. 17 The day before the trial. 18 T 174 – 175. 19 Photographs 5, 6 and 8 in P2. -- 8 of 37 -- [2024] SADC 12 7 was sitting on the left side of the lounge, when the defendant got off the lounge and got down on his knees and assaulted her.20 38 SA agreed that she had not mentioned this aspect of the incident (namely the defendant being on his knees) to the police in her prescribed interview, nor had she mentioned that in either her written statement of 13 September or 5 December 2023.21 39 SA’s mother (SN) said that SA had only recently disclosed the incident of being sexually assaulted by the defendant being on his knees. SN said that SA told her that when SW walked back into the room the defendant stopped what he was doing. SN said that SA told her that SA believed that SW may have witnessed what happened.22 40 SA said that there was only one occasion when she and SJ made a TikTok video when the defendant was present.23 This assumes some significance later, when assessing SJ’s evidence. Complaint evidence 41 SA’s disclosure to her mother that the defendant had ‘accidentally touched’ her cannot be used as demonstrating consistency of conduct pursuant to s 34M(3) of the Evidence Act. 42 The disclosure is in fact inconsistent with what SA alleged the defendant actually did to her when sexually assaulting her on multiple occasions. 43 As Duggan J observed in R v S, DD24 I consider that it is correct to say that if evidence is to be admitted pursuant to s 34M, the Court must be able to direct the jury pursuant to s 34M(4) that such complaint evidence is admitted both to inform the jury as to how the allegation first came to light and as evidence of the consistency of conduct of the alleged victim. As to the latter aspect of “consistency of conduct”, it is obvious that the legislature would not have intended that a false direction be given to a jury or that an accused person be treated unfairly. Accordingly, it follows that the Court must be conscientiously of the view that the evidence is capable of demonstrating “consistency of conduct” before it can be admitted as an “initial complaint”. 44 Under cross-examination, SA confirmed it was after she had told her mother about the defendant accidentally touching her (which then led to the defendant being spoken to by SW), that there were no further instances of inappropriate touching. SA said that she told her mother about the accidental touching in early 20 T 129. 21 T 159. 22 T 278. 23 T 170. 24 (2010) 109 SASR 46 at [109]. -- 9 of 37 -- [2024] SADC 12 8 2019. SA clarified that she told her mother about this accidental touching about one month after her cousin, SJ, suffered an injury to her spleen.25 45 SA’s mother, SN, gave evidence about the accidental touching disclosure by SA. SN said that when SA was aged nine or 10 years, she had a conversation with SA involving sexual abuse (following a situation at SN’s work that involved allegations of sexual abuse).26 SN said that she spoke with SA about ‘safe touching’ and explained to SA that it was wrong for someone to touch SA in her private area. SN said that she then asked SA whether anyone had ever touched her in that area and SA responded that the defendant had done so.27 46 At hearing this, SN said that she immediately became emotional, upset and angry over what SA had told her. SN detailed the conversation she had with SA as follows:28 A So after that I said - I was really angry and upset and I said ‘What do you mean? What do you mean papa touched you down there’? and she, she - yeah, ‘What do you mean papa touched you down there?, tell me everything, what happened’?, and then she said, ‘Oh, no, it was nothing, I was in the lounge room with papa, he was - I was sitting on his lap, nanna was in the room and he accidentally brushed past me down, past my private area’ and, sorry, I just need a breath. Q That's okay, take your time. A So, yes. So, yeah, she said ‘I was sitting in the lounge’, and it was like calm, ‘I was sitting in the lounge, nanna was there. He accidentally brushed past me down there’. I said ‘Was it inside your clothes or outside your clothes’?, she said ‘Outside’ and she said that ‘I think he was drunk’, and that was it, and then I said to her ‘Okay, well, that is still wrong. I think I need to tell dad about this’ and, ‘Yes, it could have been an accident definitely, but I still, I think I should tell dad’. [SA] said straight out, ‘No, don't tell dad, don't tell dad’, and then I said, ‘Well, I'm going to ring nanna then and I will tell nanna’, which is [SW], and so the next day I was at work, and I rang [SW]. 47 SN said that the following day she called her mother-in-law, SW, and told her what SA had disclosed. SN said that she asked SW if she would pass that on to the defendant.29 48 SN said that she did not ask SW about it ever again, nor did she take the matter up directly with the defendant. SN said that she accepted what SA had told her, namely that the touching mentioned by SA by the defendant was only accidental.30 49 SW was called by the prosecution. SW said that her daughter-in-law (SN) spoke to her about the defendant ‘accidentally brushing up against SA’ when SA 25 T 99.31. SDM said that SJ suffered the injury to her spleen on 15 May 2019. 26 T 270. 27 Ibid. 28 T 271. 29 T 271 – 272. 30 T 287 – 288. -- 10 of 37 -- [2024] SADC 12 9 was sitting on the defendant’s lap. SW said she understood from SN the brushing was around SA’s shoulder area. SW said that she spoke with the defendant and asked him ‘Have you ever done anything with SA?’ and he replied ‘No, absolutely not’.31 50 SW said she did not observe any change in how SA interacted with the defendant after this conversation. She said that SA appeared to be happy when in the company of the defendant. 51 The only relevance of the evidence of SA’s disclosure about being accidentally touched by the defendant is that it signifies when SA said the alleged sexual abuse stopped, although this cannot be used as supporting evidence of SA having been sexually assaulted by the defendant. As I have already explained, the ‘accidental touching’ disclosure does not amount to a complaint under s34M of the Evidence Act. 52 SA said that apart from telling her mother that the defendant had accidentally touched her, she told her school friend, KE, that her grandfather had touched her. SA said that she made this disclosure to KE when the two of them were walking to an OTR. SA said she made this disclosure to KE sometime in late 2019 or in 2020 and that it was about six months after she had spoken with her mother about the accidental touching. SA said that she and KE had been at KE’s house before they walked to the OTR. 53 KE’s evidence, on the other hand, was that she had been having a sleepover at SA’s house. KE said that they were going to visit SA’s cousin (SJ) that day. KE said they were in SA’s bedroom when SA told her that her ‘papa played inappropriate games’ with her.32 KE said that SA did not explain what she meant by ‘inappropriate games’. KE said SA told her that the games made her ‘feel uncomfortable and that she (SA) felt that it was wrong’.33 KE also said that SA told her that SJ was involved and that it had also happened to her (SJ). 54 It is apparent from KE’s evidence that what SA disclosed was not consistent with SA’s account of the alleged abuse. SA never said that the defendant played ‘inappropriate games’ with her in the context of being sexually assaulted by him. 55 Furthermore, given that KE said that she was also told by SA that SJ was involved, and that it also happened to SJ, then it is likely that this conversation between SA and KE occurred after SA and SJ had already mutually disclosed the alleged sexual abuse to each other. 31 T 356.17. See also T 357 .11 – 13 where SW confirmed that she asked the defendant ‘Have you touched SA in any way? and he said ‘No, I have not’. 32 T 181. 33 Ibid. -- 11 of 37 -- [2024] SADC 12 10 56 Accordingly, on my assessment of the evidence, SA has made an initial complaint of being sexually assaulted on the occasion she and SJ spoke about what happened to each of them, as detailed earlier at [30 – 31]. 57 I am satisfied that this disclosure by SA to SJ amounts to evidence demonstrating a degree of consistency of SA’s conduct.34 This complaint to SJ is not evidence of the truth of what SA disclosed to SJ about the alleged sexual abuse.35 Further, I direct myself that there may be a variety of reasons why an alleged victim of a sexual offence makes a complaint of the offence at a particular time or to a particular person.36 SJ’s evidence 58 SJ’s evidence was comprised of a prescribed interview conducted by Brevet Sergeant Castle on 19 August 2022,37 that was admitted pursuant to s 13BA(3) of the Evidence Act and additional evidence given by SJ in court.38 SJ’s prescribed interview 59 SJ said that the first time the defendant sexually interfered with her was on an occasion when she and her siblings were being babysat by their grandparents at their home. SJ said the reason for that was because her parents were attending a party. SJ said that SA was there at the time. SJ said she was in year six at school and remembers it being summer. 60 SJ said that her siblings were inside the house and that her grandmother was also inside and that she was cooking dinner for them. 61 SJ said that she and SA were performing TikTok dances outside near the entertainment area. SJ said that the defendant was outside watching them perform. He was sitting at the table in the outdoor entertainment area. SJ said that when it was SA’s turn to dance and sing the defendant asked her (SJ) to sit on his lap, which she did. 62 SJ said that while she was sitting on the defendant’s lap, he was moving his leg up and down and he then placed his right hand on her pants and was touching her vagina area. SJ said that the touching occurred on the outside of her pants only. SJ said the defendant was pushing his hand really hard against her vagina. SJ also said that she could feel his fingers ‘trying to go up’ her vagina. SJ said that the defendant was using his fingers to push against the front of her vagina. SJ said the defendant did not say anything and that when he was touching her vagina he was watching SA sing. SJ said this touching lasted about a minute. SJ said that she did not know what to do and so she pushed him, got off his lap and ran inside to 34 Section 34M(4)(a) Evidence Act 1929. 35 Section 34M(4)(b) Evidence Act 1929. 36 Section 34M (4)( c) Evidence Act 1929. 37 Exhibit P2. 38 Pursuant to s 13BA(5) of the Evidence Act permission was granted for SJ to be examined and cross- examined on identified topics: Ruling 7 December 2023. -- 12 of 37 -- [2024] SADC 12 11 her grandmother in order to feel safe. SJ said she did not say anything to the defendant when she got off him and walked away. SJ said that SA remained outside with the defendant when she went inside to the safety of her grandmother. SJ said that she tried to stay away from the defendant for the rest of the night. 63 SJ said the second time she was interfered with was when she was in her bedroom. SJ said that her grandparents had been visiting. SJ said this occurred about one month after the first incident. 64 After dinner, SJ said that she was in her bedroom when the defendant entered and was ‘trying to follow me and I was just walking around in circles trying to escape, when he pulled me in and just started putting his hands down my pants again’. SJ elaborated on this by saying that the defendant had grabbed her by the arm and pulled her in to him as she was attempting to walk out of her bedroom. SJ said that she could feel him breathing on her neck when he pulled her into him. SJ also added that his hand was cupped and covering the whole of her vagina and that he was applying pressure using two fingers (demonstrating his index and middle fingers) for a matter of seconds only because her grandmother had walked into the room causing him to stop. 65 SJ said the defendant then left her bedroom ‘like nothing had happened’ and returned to where her father was. SJ said that when her grandmother entered the bedroom, she (SJ’s grandmother) sat on her bed and spoke about the drawings the defendant did and she (SJ’s grandmother) showed them to her. 66 Importantly, SJ said that when she stated that the defendant ‘put his hands down her pants’ she did not mean that literally. SJ said that her pants were still on and that the defendant’s hands were over her pants. 67 SJ’s mother, SDM, said that by reference to a Facebook post, she was able to determine that she and her husband went out for dinner and the movies with another couple (C and A) on 16 September 2017. The defendant and his wife (SW) attended to babysit the children, while SDM and her husband were out for the evening.39 68 SDM recalled attending a wedding on 11 November 2017 by reference to a particular dress that SJ said she was wearing. As with the earlier occasion when she and her husband had gone out for dinner with friends, the defendant and his wife attended to babysit the children.40 69 SDM said that SJ told her that the first time she was sexually abused by the defendant was when SDM and her husband had gone out to the movies and SJ’s 39 T 300. 40 T 301. -- 13 of 37 -- [2024] SADC 12 12 grandparents were looking after the children.41 SDM said that she did not think SA was at the house that night.42 70 SDM said that SJ told her that the second occasion SJ was sexually abused occurred when SDM was wearing a particular dress. SDM said she had only ever worn that dress once to the wedding that she and her husband attended on 11 November 2017.43 71 SJ agreed that the first incident occurred when her parents were out and in relation to the second incident, SJ denied that her parents were also out. SJ was pressed about this in cross-examination and maintained that the second incident occurred when everyone was home,44 which is contrary to the evidence given by SDM that SJ had told her the second incident occurred on an occasion she remembered SDM wearing a particular dress. 72 SJ described that ‘the biggest thing that happened’ was when her family was visiting SA’s family. SJ said that she and SA were bored so they decided to go across to the defendant’s residence to see their grandmother. SJ said that her grandparents had been at her aunt and uncle’s house (SA’s house) earlier in the evening. 73 SJ said that when she and SA arrived at their grandparents’ house that their grandmother was sitting on the lounge having a cup of tea. SJ said the defendant was also sitting on the lounge watching television. 74 SJ said they were all sitting on the lounge talking when the defendant said that he was going outside to have a cigarette and he asked her to come outside with him so she could look at his drawings. SJ said that SA remained inside with their grandmother. 75 SJ said that after she accompanied the defendant outside that he was showing her his drawings ‘while putting his hands in [her] pants and it was really hurting’. 76 SJ expanded on this by explaining that she and the defendant were standing in front of the table in the veranda area. SJ said the defendant was behind her and ‘that’s when he actually put his hands down my pants and my knickers and started putting his fingers up and it was really hurting’. SJ said that the defendant was using his right hand to penetrate her vagina and that while he was doing that, he was using his left hand to flip through the pages of his drawings. 77 SJ said that she wanted the defendant to stop what he was doing to her and so she said to the defendant that she thought she could hear somebody (and she 41 T 334.24. 42 T 334.27. 43 T 336. 44 T 232 – 233. -- 14 of 37 -- [2024] SADC 12 13 told the defendant that it was her cousin, J approaching which caused the defendant to stop what he was doing and look about. 78 SJ said that when the defendant could see that there was no one there he asked her if she wanted to go for a walk. SJ said she assumed the defendant was going to take her back to her parents who were at SA’s house but instead, he took her to where the water tanks were located to the side of the defendant’s residence and that once there ‘he started putting his hands down my pants and it was like really, really hurting and he was asking me to spread my legs out even more and I told him to stop and pushed him away’. SJ said that she had her back to the water tanks and she was facing the defendant when he used one of his hands to pull the leggings she was wearing out and he then placed his other hand down her pants. SJ added that his hand was underneath her nickers and that he was applying more pressure than he had ever done before. SJ said that it felt like he was trying to put his fingers inside her vagina. SJ said that she could feel ‘his fingers moving everywhere … pushing upwards’. SJ demonstrated that the defendant was using his index and middle fingers to penetrate her vagina. SJ said that she then pushed the defendant away and started crying. SJ said that she then hugged the defendant, who, in turn, said, ‘I’m sorry, I’m just drunk’. 79 SJ said the defendant then walked off. SJ said that she then sat down by the water tanks and was crying, before making her way back inside her grandparents’ house. 80 SJ said that when she entered, her grandmother looked at her and asked her if she was okay. SJ said she nodded and that the defendant then looked at her and asked, ‘Are you okay, cause you look upset’? SJ nodded again, before walking off into the spare room where she cried. 81 In her evidence, SJ said that when she entered her grandparents’ house SA was no longer there. SJ said that she was only gone for less than five minutes but that SA was not there when she returned.45 82 SJ said that this incident occurred when she was in year 7 at school. 83 SJ said that after this incident she experienced a stinging pain when she urinated, and this pain persisted for about one week. 84 SJ said that there were three separate incidents that she could remember, adding, ‘I think he did it more, but I don’t remember any details to it’. When asked why she believed it occurred more times than the three incidents she recalled in her interview, SJ said, ‘Because the more I picture it, I just picture it all in different areas and I can just see it happening, yeah’. SJ explained by ‘different areas’ she meant different areas in her house and at the defendant’s house. SJ said she could remember an incident in her shed where the defendant had placed his hands down her pants again. In relation to this shed incident, SJ said that she could remember 45 T 222 – 223. -- 15 of 37 -- [2024] SADC 12 14 hearing her brothers, S and I, playing outside and that her father had gone out to get a gas bottle. SJ said her mother and grandmother were inside the house at the time. 85 SJ said she also remembered being abused in the defendant’s bedroom. SJ said that there was no one else in the house at that time. SJ said she was in the defendant’s bedroom looking at the mirror when the defendant entered, and she felt his hand on her vagina again, only this time he touched her with her ‘pants still on’. 86 SJ said that the first person she spoke to about the abuse was her best friend, K, when SJ was in year eight at school. JS said she told K ‘My Pop hurts me’. When K asked her how her Pop had hurt her, JS said she told K, ‘He kept on putting his hands down my pants’. 87 SJ said that in 2021 she was visiting SA and they were walking through the playground at SA’s property when SA looked at her and asked whether ‘Pop’ had done anything weird before. SJ said that in the back of her mind she thought to herself that the sexual abuse she suffered from the defendant might have also happened to SA. 88 SJ said she then asked SA ‘What?’ and SA hesitated and then replied, ‘Never mind’ and SA did not go on to disclose anything. However, SJ said she kept asking SA ‘What is it?’ and SA eventually responded by telling her that the defendant used to put his hands down her pants and hurt her. SJ said that SA told her that every time the defendant ‘did it’, it really hurt. SJ said that SA told her that it happened multiple times. SJ said that she then told SA that it had happened to her too. 89 SJ said that this mutual disclosure occurred sometime after she had suffered an injury to her spleen in 2019.46 SJ’s additional evidence 90 SJ said that she was sexually assaulted while riding on a quad bike with the defendant. She said that she was visiting her grandparents at a time when her aunt and uncle and their children were not at the property.47 SJ said that she was in year six at school.48 91 SJ said that the defendant asked her to take him for a ride on the quad bike. SJ said that she was sitting in front controlling the bike and the defendant was sitting behind her with his arms around her waist.49 46 The evidence given by SDM is that SJ suffered an injury to her spleen on 15 May 2019 when SJ was in year seven at school: T 311. 47 T 195.16. 48 T 201.29. 49 T 196. -- 16 of 37 -- [2024] SADC 12 15 92 SJ said that they rode down to the creek and as they were driving back to the defendant’s house, the defendant asked her to slow down and go for a ‘cruise ride’.50 SJ explained that she understood that she was to slow down her speed as they were riding back to the defendant’s house. SJ said that as they were travelling along the path towards where her aunt and uncle’s large water tank was positioned, the defendant placed one of his hands inside the leggings she was wearing and then placed his hand inside of her underwear and inserted his fingers into her vagina.51 SJ said that the digital penetration of her vagina hurt her.52 SJ said this did not last long and the defendant stopped what he was doing when they could see the houses on the property and were nearing the gate.53 SJ said the defendant did not say anything to her when he did this nor did she say anything to him about what he was doing to her.54 SJ said that when they arrived back at the defendant’s house she parked the quad bike in front of the veranda and the defendant got off the bike and went inside his house.55 93 SJ had not disclosed this incident in her prescribed interview. SJ said that she later disclosed this incident to her mother and to SA. SJ provided a statement to the police about this incident on 16 September 2023. 94 SJ said that she also made a written note about the quad bike incident in which she recorded that as soon as they rode through the gate, the defendant placed his hands down her pants causing a lot of pain and that he was doing this for the whole ride.56 SJ acknowledged that what was written in the note was different to her evidence, but said that when she made the note she was ‘really stressed out about everything and she got messed up with everything she wrote’.57 SJ maintained that what she said in her evidence about the quad bike incident was true. Complaint evidence 95 SJ said the sexual abuse stopped ‘sometime in the beginning of year seven’ at school, which was in early 2019.58 96 SJ said that she first disclosed the abuse to her friend, M, when SJ was in year eight at school. SJ said she did not go into any detail, simply telling M that her Pop had been sexually assaulting her by putting his hands down her pants.59 50 T 196 – 197. 51 T 199. 52 T 201. 53 T 200. 54 Ibid. 55 Ibid. 56 T 248. 57 T 249. 58 T 216. 59 T 210 – 211. -- 17 of 37 -- [2024] SADC 12 16 97 This disclosure amounts to evidence of complaint pursuant to s 34M(3) of the Evidence Act. 98 The evidence is relevant as informing when and how SJ’s allegations that the defendant sexually interfered with her first came to light and as evidence of the degree of consistency of her conduct.60 The complaint made by SJ to M is not evidence of the truth of what she disclosed to M about the alleged sexual abuse.61 I direct myself that there may be a variety of reasons why an alleged victim of a sexual offence makes a complaint of the offence at a particular time or to a particular person.62 99 M was not called to give evidence about what SJ may have disclosed to her concerning the alleged abuse. The absence of any evidence from M, as to what SJ may have disclosed, does not affect the admissibility of SJ’s evidence that she complained to M or the use to be made of that evidence.63 However, the weight to be accorded to SJ’s evidence of this complaint is affected, as it becomes difficult to make a proper assessment of SJ’s ‘consistency of conduct’ in the absence of evidence given by M. 100 SJ’s and SA’s evidence about their mutual disclosures that took place in SA’s bedroom after each told the other that the defendant had sexually assaulted them amounts, in the case of SJ, to an elaboration of the initial complaint SJ made to M and amounts to evidence of SJ’s consistency of conduct. SW 101 The defendant’s wife (SW) gave evidence for the prosecution. 102 SW said that SA and SJ shared a close relationship with each other. 103 She confirmed that SA was a frequent visitor to their residence, stating that ‘we probably saw her practically every day’.64 104 SW said that the defendant enjoyed drawing and that both SA and SJ would sit in the chair next to the defendant when he did so. SW stated that she did not observe either SA or SJ sitting on the defendant’s lap when he was drawing.65 However, SW did witness SA sitting on the defendant’s lap when he would do crosswords on his iPad.66 60 Section 34M (4)(a) Evidence Act 1929. 61 Section 34M (4)(b) Evidence Act 1929. 62 Section 34M (4)(c) Evidence Act 1929. 63 See R v Duell [1964] QLR 451; R v P, S (2016) 261 A Crim R 329. 64 T 347. 65 T 350. This is contrary to what the defendant told the police in his interview where he accepted both SA and SJ would sit on his lap when he was drawing. 66 Ibid. -- 18 of 37 -- [2024] SADC 12 17 105 SW confirmed that when SJ was hospitalised after injuring her spleen, she (SW) stayed at SJ’s house and looked after SJ’s brothers.67 106 SW remembered the occasion that she and the defendant babysat SJ and her brothers when their parents attended a wedding.68 107 SW did not recall any incident where SJ entered her house and was crying or upset;69 nor did SW ever recall walking from the kitchen at SJ’s house into SJ’s bedroom and seeing the defendant in there with SJ.70 108 SW was shown P2 and said that the lounge suite depicted in the photographs was previously situated in a bedroom. During the period between 2017 and 2019, there were two recliner chairs in the lounge room and not the lounge suite that is depicted in P2. SW said that she and the defendant would each sit in the recliners and if any of the grandchildren visited and they were all watching television together, the children would either sit on the floor or on SW’s or the defendant’s lap.71 Defendant’s police interview 109 The defendant was arrested at his home on the afternoon of 20 August 2022, after SA’s prescribed interview was concluded. 110 The defendant was conveyed to the police station where he participated in an interview.72 111 When the broad allegation that he had sexually assaulted SA and SJ was put to him, the defendant denied ever touching either SA or SJ. 112 When it was specifically put to the defendant that he had placed his hand down the pants of each child and touched them on the vagina, he responded by saying ‘That’s a load of nonsense … I’d never do that with the kids … come on. No, never, never’. 113 The defendant went on to tell the police that he was ‘absolutely devasted’ by the assertions being levelled against him. 114 Throughout the police interview the defendant constantly denied ever touching either child. 115 He stated that he had a good relationship with each child and had never experienced any problems with either of them. 67 T 352. 68 Ibid. 69 T 354 – 355. 70 Ibid. 71 T 365 – 367. 72 Exhibit P9. -- 19 of 37 -- [2024] SADC 12 18 116 The defendant told the police that the night before his arrest he heard of the allegations being made against him by SJ. He said that he had spoken to his wife about the allegations. He said that his ‘heart just sunk, absolutely sunk’. He stated that his son was going to believe his daughter and, as a consequence, he and his wife had just lost their family. He postulated that there was nothing that he could ever say to convince his son (or the police) that he never did anything to the children. 117 The defendant agreed that SA would often sit on his lap while he was drawing but denied completely the allegation that he had used those opportunities to place his hand down her pants and touch her vagina. 118 When the defendant was questioned about having ever been warned by his wife to ‘be careful with SA’, he agreed that is what his wife had told him. However, he explained that was because SA would often sit on his lap when he was drawing, and his wife told him ‘Maybe you should stop that. Don’t do that’. The defendant did not consider that he was being accused, at that time, of doing anything improper towards SA. In light of the limited evidence given on this topic, I cannot make a finding that the defendant knew that what he was being spoken to about involved an allegation of sexual misconduct against him by SA. It is apparent that the topic was never raised again and nor did SA’s mother (SN) ever speak with the defendant about it. Indeed, SN had accepted that the touching disclosed by SA had only been accidental. She was not so concerned as to stop SA being alone with the defendant. Defendant elects not to give evidence 119 The defendant elected not to give evidence. No adverse inference can be drawn against the defendant for this decision. His decision not to give evidence cannot be used as a makeweight for the prosecution’s evidence. Similarity of Account Reasoning 120 The counts are properly joined in the Information.73 There was no application made by the defendant that the counts be tried separately. 121 The evidence of the alleged sexual abuse of SA and SJ by the defendant amounts to evidence of discreditable conduct in the one trial. The admissibility of the evidence of one complainant in relation to the charged sexual offending against another complainant is governed by s 34P of the Evidence Act 1929 which relevantly provides: (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— 73 Section 102(6) of the Criminal Procedure Act 1921. -- 20 of 37 -- [2024] SADC 12 19 (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue – the evidence has strong probative value having regard to the particular issue or issues arising at trial. (3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. 122 In this case, the prosecution is not seeking to use the evidence of SA and SJ to prove a particular propensity on the part of, or a disposition of, the defendant to sexually abuse his granddaughters. 123 Instead, the prosecution has relied upon improbability or similarity of account reasoning. Wherever such reasoning is invoked, s 34P(2)(a) is engaged and evidence supporting the permissible use may only be admitted if the probative value of that evidence outweighs any prejudicial effect it may have on the defendant and the permissible use of the evidence is and can be kept sufficiently separate and distinct from any impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. 124 In R v C, CA,74 Kourakis CJ described the reasoning process of similarity of account evidence in the following way: The strong probative force of similarity of account evidence in the circumstances of this case can be shortly explained. If there were separate trials of the offences against each of the complainants, the primary issue would become the reliability and credibility of the individual complainant concerned. Having sought separate trials, it is very unlikely that the appellant would raise collusion with another complainant who had made similar allegations as a reason for doubting the complainant in the charges before the court. Instead, on a trial of the charges relating to a single complainant alone the defence is likely to advance matters peculiar to that complainant for doubting his reliability or credibility. Those matters are likely to be accorded substantially greater weight if nothing is known of the allegations made by other complainants than if it is known that other complainants have 74 [2013] SASCFC 137 at [57] – [58]. -- 21 of 37 -- [2024] SADC 12 20 given very similar accounts of sexual offending by the accused. The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other. Thus it is that on a joint trial of offences against multiple complainants, even though the ultimate question for the jury remains whether it is satisfied beyond reasonable doubt that the appellant committed each of the offences with which he is charged, a high degree of similarity in the complainants’ accounts which excludes the hypothesis of independent concoction leaves, as the practical forensic issue, whether the possibility of collusion has been excluded beyond reasonable doubt. To put the matter a little differently, let it be supposed that there were separate trials ordered for the counts charging offences against MA and MG. If in the cross-examination of MA the accused’s counsel were to put, either that MA bore the accused malice which caused him to bring a false accusation, or that MA’s complaint arose out of internal psycho-sexual confusion, it could not be doubted that the evidence of MG would, if the similarities between their accounts were sufficiently close, be strongly probative that that was not so. The strong probative force of MG’s evidence lies in the improbability that both MG and MA would independently be motivated to make closely matching, but false, complaints. It is not necessary, of course, for there to be cross-examination which expressly puts that hypothesis. The issue is one which inevitably arises when accusations of this kind are made. On the admission of the similar account of MG, the primary forensic issue would become one of collusion or not because of the strong probative force of MG’s evidence in excluding the hypothesis that MA’s account was the product of his malice or confusion. 125 Kourakis CJ explained the interrelationship between the probative value of evidence giving rise to improbability or similarity of account reasoning and the test for admissibility contained in s 34P(2)(a) of the Evidence Act:75 The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations. … 75 Op cit at [61]; [65]. -- 22 of 37 -- [2024] SADC 12 21 The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub- conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged. 126 As to the question of the degree of similarity between the evidence of multiple complainants, Kourakis CJ, in R v MDM,76 stated: In this State, the evidence of complainants in multiple victim cases has often been held to be cross-admissible because of the improbability of complainants giving similar accounts of offending by the same person unless their accounts were true. The admissibility of the evidence on that basis has been facilitated by the statutory abrogation of the common law rule of evidence, first stated in Hoch v The Queen, which had required the trial Judge to exclude the possibility of concoction before admitting the evidence of one of a number of complainants in the case against the accused on offending against another complainant. This Court has not held that the degree of similarity required to give similarity of account evidence sufficient probative value to substantially outweigh its prejudicial effect extends to the degree of similarity required to show an identity in modus operandi. It is not possible to make such a general statement. The reasoning in both is analogous but not identical. The former reasoning concerns the improbability of similar accounts of offending being given by different complainants unless the offending actually occurred; the latter concerns the improbability of two different offenders committing offences in a very similar way. The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him. The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending. However, any additional similarities in the offending build on that initial improbability. For those reasons, I do not accept that, to be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence necessarily requires a greater degree of similarity than is required for propensity evidence. 127 In R v DES77, Doyle J made similar observations that when a court is considering similarity of account reasoning, the focus should be upon the degree of similarity between the separate complainant’s allegations of the abuse, rather than on the number or regularity of the instances of that abuse. Furthermore, the focus must be upon the similarity (or dissimilarity) that bears upon the improbability of fabrication, coincidence or collusion. 128 It was accepted by the defendant that the evidence in relation to each complainant was cross-admissible against the other, on the basis of similarity of account or improbability reasoning. That concession was properly made on the evidence of the similarities of the accounts given by SA and SJ. 76 (2020) 136 SASR 360 at [14]. 77 [2020] SASCFC 32 at [70]. -- 23 of 37 -- [2024] SADC 12 22 129 It was conceded by the defendant that the use of the evidence for this purpose satisfied the test for admissibility set out in s 34P (2)(a) of the Evidence Act 1929. In this regard, when considering the admissibility of the evidence on the basis of similarity of account reasoning, s 34S of the Evidence Act precludes the court from excluding such evidence on the basis that it may be the result of collusion or concoction. 130 However, that is not to say that the trier of fact cannot take that into consideration when deciding whether there is another explanation for the similarity of accounts open on the evidence of multiple complaints. 131 The defendant strongly submitted during his closing address that the underlying force behind the reasoning of the similarity of account evidence was defeated as there existed a reasonable possibility that the similarities between SA’s and SJ’s accounts of the alleged abuse was the product of collusion or contamination between them. It is only if the prosecution can exclude collusion, contamination or innocent infection between SA and SJ as being a reasonable possibility, that their evidence can be legitimately used by the trier of fact as a basis for objective similarity of account reasoning. If the prosecution does not, then the evidence of the similarities in each complainant’s account proves nothing.78 132 SA, SJ and their mothers were extensively cross-examined on the topic of whether there was or existed the possibility that SA and SJ discussed or had become aware of each other’s allegations and so may have colluded to make false allegations against the defendant, or whether they had either deliberately fabricated their allegations to support the other, or had sub-consciously believed the alleged abuse occurred in a similar way because they heard of the other’s allegations, or that their account of the alleged abuse was contaminated by what they discussed or were told. 133 SA said that on the night of 18 August 2022 (the night before SJ’s prescribed interview with the police) she received a text message from SJ, simply stating that ‘it was about their grandfather’. SA said she then received a FaceTime call from SJ. During this call, SJ told SA that she (SJ) had told her (SJ’s) mother about the defendant sexually assaulting her (SJ). SA said that during the call with SJ, SJ told her that SJ’s mother was angry, and that Aunt A was going to be coming over. 134 SJ’s mother was later involved in part of the call. SA said that SJ’s mother (SDM) asked her (SA) if she was okay. SA said that SDM told her that she was going to tell SA’s parents and the police, and that SA would have to speak with the police. SA said that she told SDM that was okay because she (SA) had already told her mother (SN). SA said this caused SDM to become angry (because SDM had believed that SN had not told her about the defendant’s alleged sexual abuse when SA had disclosed it to SN). 78 See for example R v Sexton [2022] SASCA 73. -- 24 of 37 -- [2024] SADC 12 23 135 SA said that during the call with SJ, they did not discuss anything that their grandfather had done to them.79 136 SA said that on the night of 19 August 2022, she sent a text message to SJ asking SJ where she was. SJ responded that she was at the police station. SA said that she asked SJ how she was. SA said that they did not discuss the allegations against their grandfather.80 137 SA said that same night, after finishing playing netball, she had a conversation with her mother. SA agreed that her mother appeared to know some information concerning SJ’s allegations. SA said that she assumed this because her mother told her ‘I think something really bad happened to SJ’. SA said that her mother did not tell her any of the details involving SJ’s alleged abuse.81 138 SA also agreed that when her father (SD) arrived home she had understood that he had been at SJ’s home. SA said that her father appeared really worried because he was told by SDM that the defendant had also abused her (SA). SA said her father was asking her if she was okay. SA said that her father did not disclose any allegations involving SJ.82 139 SA said that her mother told her that SJ had been ‘sexually assaulted’ by her grandfather.83 SA said that it was possible that her mother may have provided her with some information about what she understood SJ’s allegations involved and then questioned SA about what had happened to her.84 140 SA said she sent SJ a message asking her how the police interview went and how she was. SA said that SJ did not tell her anything about what she said to the police. 141 SA said she and SJ first spoke about the defendant sexually abusing them when they were outside of the shed next to the defendant’s residence and they then walked to SA’s house and spoke about it in SA’s bedroom, as I have detailed earlier in these reasons. 142 SA said that when she first disclosed any detail to SJ about what the defendant did to her, they were in her bedroom. SA said she told SJ that when she was sitting on the defendant’s lap in the outside shed area of their grandparents’ home that he had assaulted her.85 SA said SJ told her that the defendant had taken her (SJ) behind the water tanks and told her to spread her legs and then assaulted 79 T 119. 80 T 120. 81 T 121. 82 T 122. 83 T 123. 84 T 123. 85 T 126. -- 25 of 37 -- [2024] SADC 12 24 her.86 SA said this was the only disclosure made to her by SJ on this occasion.87 SA said that these two ‘scenarios’ were the only ones spoken about by SA and SJ on this occasion.88 143 SA said that a couple of months later she and SJ were again in SA’s bedroom, but they did not discuss any of the ‘scenarios’.89 144 SA agreed that in her prescribed interview she had told the police that SJ had told her it only happened 15 times. SA said that she had not been told this by SJ (because SJ had only disclosed one occasion by the water tanks).90 SA was not convincing about this in her evidence, and this clearly suggests that SA and SJ had discussed the alleged abuse in some detail, certainly much more than SA was willing to accept. Contrary to what SA said, I find that the discussion between SA and SJ about the sexual abuse by the defendant was not confined to the single occasion of alleged abuse SA asserted was disclosed to SJ at that time and vice versa. 145 SA said that while she and SJ talked about what happened ‘every time they met each other’, they did not talk about the details of what actually happened to them.91 SA said they only spoke about the effect their disclosure would have on the family. 146 SA said that she told SJ about being sexually assaulted on the quad bike in August 2023. SA said that they were at SJ’s house, and everyone was talking about how the matter would be in court soon. SA said that she and SJ then went into SJ’s bedroom.92 SA said SJ asked her if there were any other things that she remembered happening to her and SA said she told SJ that she was assaulted by the defendant on the quad bike.93 SA said that this conversation occurred before she had provided a written statement to the police on 13 September 2023.94 Despite SA saying that she told SJ that she was assaulted on the quad bike, SA agreed that there was no mention of being assaulted on the quad bike in the statement she provided to the police on 13 September 2023.95 SA agreed that the first time she had mentioned being assaulted on the quad bike was in a statement she made on 5 December 2023 (the day before the trial commenced). 147 SA said she told SJ that the defendant drove her down to the creek, stopped there and assaulted her.96 SA said that she did not detail to SJ what had happened on the quad bike, and she also did not tell SJ whether it happened once or on more 86 T 126. 87 T 126 – 127. 88 T 130. 89 T 130. 90 T 162 -–164. 91 T 139 – 140. 92 T 133. 93 T 131 – 133. 94 T 134. 95 T 135. 96 T 131. -- 26 of 37 -- [2024] SADC 12 25 than one occasion. SA said that after disclosing the quad bike incident to SJ, SJ said that the same thing happened to her on the quad bike.97 148 SJ gave evidence of the mutual disclosures she and SA made to each other. SJ said that SA asked her if ‘poppa (the defendant) had done anything weird before’.98 SJ said that she asked SA ‘like what’? and SA replied ‘Nothing, don’t worry about it’. SJ said that she told SA “No, you have to tell me now’ and SA answered, ‘Has Pop ever put his hands in your pants’? SJ said that she replied ‘Yes’.99 SJ said that they then walked to SA’s house and spoke about it in SA’s bedroom. SJ said she could not remember what SA had told her, but she said that she told SA what the defendant did as follows:100 A I told her that I was looking at his drawings outside on his table and he stood behind me and had his hands in my, like my pants and I then told [SA] that I was scared, and I needed to get out, so I told her that, I told him that I think [J] is coming and he quickly took his hands out. He asked me to go for a walk with him and I told [SA] that I followed because I thought that he was going to take me to my mum and dad. I then told [SA] that we were going the wrong way and we stopped in front of the tanks and he proceeded to put his hands in my pants and I told [SA] that he asked me to spread my legs further apart and I told her that I started crying and I hugged him and was shaking my head no all the time and then he kind of shrugged me off and then I told [SA] that he said to me that he's sorry, he was just drunk and that he walked back inside. I then told her, like after he was inside, I came back in after crying and as I walked through the door, I told her that nanna and Poppa were sitting on their couches and nanna looked at me and said, 'Are you okay' and then I told her that Pop looked at me and said 'Yeah, you look like you've been upset'. Q What did [SA] say to you after you said that to her. A I don't remember. Yeah. Q Are you able to recall at that time in the bedroom if [SA] told you about anything that had happened to her. A I don't remember, I'm pretty sure she did but I just can't remember it. 149 SJ said that during this conversation SA said that she had already told KE what had happened.101 150 SJ said that she and SA had spoken over time, but that the conversations did not involve what the defendant had done, rather it was about whether they could ever forgive him and what would happen if they told their parents because they did not want to ‘ruin the family’.102 97 T 132. 98 T 202. 99 T 202 – 203. 100 T 204 –205. 101 T 210. 102 T 205 – 206. -- 27 of 37 -- [2024] SADC 12 26 151 SJ said that she later told SA of another incident when the defendant entered her bedroom and when her grandmother walked into the room the defendant stopped and left. 152 SJ said that SA told her of an incident when their grandmother was in the toilet and SA was sitting on the couch and the defendant placed his hands inside her pants. SA told her that when their grandmother walked out of the toilet the defendant stopped.103 153 SJ recalled the night that she disclosed the abuse to her mother. SJ said that she messaged SA and told SA that she had told her mother and that the matter was going to be taken to the police.104 SJ said that SA then called her, and they had a FaceTime call where she and SA spoke for about an hour. SJ said she could not remember what they spoke about, but they did not discuss the specific incidents involving the defendant.105 154 SJ said that the following day she gave her prescribed interview to the police. SJ said that later that year she messaged SA and told her, ‘I remember another incident that happened on the quad bike’.106 SJ said that SA replied that the same thing happened to her on the quad bike, but they did not go into detail about what had happened.107 155 SJ said that she spoke to SA about the TikTok incident but did not remember when that was or where they were when she told SA about it. 156 SN said that the night she became aware of the alleged sexual abuse was when SA came into her room and told her that something happened to SJ involving the defendant.108 157 SN said that she did not discuss the detail of the allegations with SA because she did not want to talk with SA about it nor did she speak with SJ or convey to SA anything that she may have heard involving SJ’s allegations. 158 SDM said SJ disclosed to her that ‘Poppa sexually assaulted me’. SDM detailed the conversation she then had with SJ about that:109 Q Do you recall what the content of that conversation was. A Yes, I asked her just a couple of specific questions like how - like was it more than one time, more than once and she answered yes and then I went to was it more than five times and she said yes and then that was enough, I didn't ask any more about that. Then I asked like by sexual assault what do you mean, do you mean over the 103 T 207. 104 T 208. 105 Ibid. 106 T 209. 107 Ibid. 108 T 279.29. 109 T 314 – 315 -- 28 of 37 -- [2024] SADC 12 27 clothes or under the clothes and she said both pretty sure and then I said was it the top or like touching like breasts area or the bottom as in that part of the area and she said bottom. And then I said when it was under the clothes was it on or in and she said in. That was it. 159 SDM said that she spoke to SA and told her that she was going to have to tell SA’s parents about the abuse. SDM said that SA responded by telling SDM that her mother already knew. 160 SDM was cross-examined about what SJ had told her and said:110 Q Thinking now since the Loxton trip up until court now, have you had any conversations with [SJ] about the details about what she said happened to her. A I have had a few minor pieces of details, yes. Q. As best as you can recall again, can you tell the court exactly what [SJ] has told you. A She's told me about him putting his fingers in her vagina and that it hurt, and she's mentioned the quad bike and he did it there as well, same thing. Just, really, they are the things that I know and just different scenarios, like different places that it happened. Q So, and I'm sorry, I know this is difficult to talk about, but just taking the first part of that, you said she mentioned about him putting his fingers in her vagina and hurting, what, if any, further detail did [SJ] give you about that particular instance. A There really wasn't a lot of detail that she gave me. She doesn't like talking about it. She's quite private when she talks. HIS HONOUR Q For example, did she tell you where it occurred. A. Yeah, she's told me it happened, she's told me it happened on a quad bike, and she's told me it happened in their veranda part where I was saying he sits outside. She's told me it happened by the rainwater tank, which is around the corner, and she's told me that it's happened at our table that we used to have. Just things like that. XN Q. And apart from the details that you've just told the court, is there any further details about when it might have happened or anything like that. A. Well, yes, but I specifically asked [SJ] - sorry, yes, I do remember it was I think maybe the last, second to last day we were in Loxton I specifically asked [SJ] if she remembers a particular time or day that it happened and she did say I'm pretty sure it was in the car that she remembers the first time it happened, which was on 16 September, and she remembers that [C] and I were going out, [C], [SA] and [SS] and I were going out to the movies and dinner. 110 T 321 – 322. -- 29 of 37 -- [2024] SADC 12 28 161 Having considered the evidence given by the witnesses on this issue, I am not satisfied that the prosecution has excluded, as a reasonable possibility, that SA or SJ’s accounts of the alleged abuse was not influenced or contaminated by what each had discussed of the alleged abuse with the other. I am, however, satisfied that neither was influenced by what may have been discussed of the allegations by their respective families. 162 The clear evidence given by SA in her prescribed interview is that after each of SA and SJ initially disclosed to one another that they were both the subject of alleged sexual abuse by the defendant, they then proceeded to discuss that alleged abuse in SA’s bedroom for ‘hours’. According to SA, over the subsequent years, they would also discuss the alleged abuse with each other. 163 Furthermore, SA said that SJ was sexually abused 15 times. While SA said in her evidence that was something she just assumed and she was not told that by SJ, it is a matter that cannot be overlooked because according to SJ, the only detail she had discussed with SA was what happened on the night she was allegedly abused by the water tanks, being a single occasion. This suggests, that contrary to what SA has claimed, SJ has provided more detail to her during their discussions of the alleged abuse, not only on the night they spoke about it ‘for hours’, but subsequently and before their prescribed interviews. 164 A very good illustration of the possibility that SA’s and SJ’s disclosures to each other has influenced what they have said of the alleged abuse is to be found in the allegations made by each of them having been sexually abused while riding on the quad bike with the defendant. 165 Neither SA nor SJ mentioned being sexually abused on the quad bike during their respective prescribed interviews. As the alleged abuse of SJ on the quad bike only happened once, it is perhaps understandable that she did not recall all of the alleged sexual abuse during her prescribed interview. Memory does not work like that. It is not uncommon to recall further events or details at a later time, that you overlooked or forgot to mention earlier, for a variety of different reasons, not least of which would be the stress and pressure involved in attempting to recount unpleasant incidents that occurred sometime earlier and when the person attempting to recall those incidents is a child. However, in SA’s case, the alleged sexual abuse on the quad bike occurred much more frequently. As riding on a quad bike is meant to be a fun experience, the fact that it was spoiled by being sexually abused ought to have been recalled by SA particularly as it is alleged to have happened frequently. It is very surprising, therefore, that SA only mentioned the sexual abuse on the quad bike the day before the trial was to commence, leading, in my view, to the reasonable possibility that it was the product of a desire to support SJ’s account. 166 Moreover, SA and SJ gave differing accounts as to who had first disclosed the alleged abuse on the quad bike. SA said that she told SJ about remembering being sexually abused on the quad bike and that SJ then told her that it had also -- 30 of 37 -- [2024] SADC 12 29 happened to her on the quad bike. On the other hand, SJ said that she messaged SA first about being sexually abused on the quad bike and that SA replied ‘same’. 167 Whether any of this is of any significance to an assessment of SA or SJ’s credibility is separate from a consideration of the possibility that either SA or SJ was influenced by what she was told of the allegation by the other, thus defeating the use of similarity of account reasoning in the case against the defendant. 168 I accept the defendant’s submission that when SA and SJ were asked to provide additional statements, on the eve of trial, to detail the conversations each had with each other and their family members about the allegations, they would have understood the significance of those discussions as potentially being detrimental to their allegations and so had possibly sought to minimise or downplay what each said to the other about discussing the allegations. 169 Ultimately, the undeniable evidence of SA saying in her prescribed interview that she and SJ discussed the allegations for hours and continued to discuss it on subsequent occasions, and the evidence relating to how and when their allegations involving being abused on the quad bike first came to light leaves open, as a reasonable possibility, that SA or SJ, or both, have been influenced by discussing between them the allegations against the defendant over multiple occasions and over not an insignificant time period. 170 As such, I find myself in a position where I cannot rely on the similarity of their accounts when assessing their evidence in proof of the charges against the defendant.111 171 I have therefore had to approach a consideration of each charge and the evidence of SA and SJ without recourse to ‘similarity of account’ reasoning. Consideration 172 As the prosecution case depended entirely upon SA’s and SJ’s evidence to prove each charge, it is important that their evidence be scrutinised with care.112 173 In order to find the defendant guilty, I must accept that SA’s and SJ’s evidence of having been sexually assaulted by the defendant on at least two separate occasions, satisfies the high standard of proof required in a criminal trial. 174 Obviously, SA’s and SJ’s reliability and credibility are essential in determining whether the prosecution has proved the respective charge involving each of them beyond a reasonable doubt. 175 Furthermore, as the defendant participated in a police interview, I would necessarily have to reject what he said as being a reasonable possibility before I 111 R v Sexton op cit. 112 Murray v R (2002) 211 CLR 193. -- 31 of 37 -- [2024] SADC 12 30 could be satisfied beyond a reasonable doubt of SA’s and SJ’s evidence that each of them was sexually assaulted as they described. 176 Moreover, it must also be understood that in assessing the evidence in a criminal trial, it is not simply a matter of preferring one witness’s evidence over what a defendant has said. The court must be satisfied beyond a reasonable doubt that the prosecution has proved the charge against the defendant upon a consideration of the whole of the evidence.113 177 While I do not find that SA and SJ have deliberately lied, there are some matters that have affected my assessment of the reliability and credibility of their evidence as a whole. 178 In relation to SA, my impression of her was that while she was generally honest, her account of the alleged abuse was vague. 179 If one accepts SA’s evidence that SJ did not tell her that she had been sexually assaulted by the defendant 15 times and that was only an assumption made on her part, it reveals that she was prepared to embellish matters. 180 I have already observed SA’s failure to mention the alleged sexual abuse when riding the quad bike. In my view, the frequency of this abuse and the fact it is said to have occurred during what was meant to be a fun and enjoyable experience for her of riding on a quad bike around a property is something that would not likely have been forgotten by her, even under the stress and pressure of a prescribed interview. The fact that SA only provided a statement about this alleged abuse the day before trial has affected my assessment of her credibility about that alleged abuse which flows into my assessment of her credibility in relation to her other allegations. 181 It also cannot be overlooked that SA told her mother that the defendant had only ‘accidentally brushed past her down there’. While SA explained that she said this because she did not want the defendant to ‘get hurt’ it was, nevertheless, a matter that was raised with the defendant at the time and which he denied in any event, and it seems that SA’s mother accepted that whatever contact there might have been by the defendant was indeed only accidental. According to SW, this contact did not appear to affect SA’s relationship with the defendant nor reduce the frequency of SA’s visits or interactions with the defendant. As I observed earlier, SN did not appear to hold any concerns or warn SA not to be alone with the defendant. 182 I also refer to what KE said that she was told by SA about the defendant playing ‘inappropriate games’ with her. SA has never alleged that the defendant played inappropriate games in the context of her allegations of being sexually 113 R v Schulz (2016) 126 SASR 476 per Vanstone J. -- 32 of 37 -- [2024] SADC 12 31 assaulted by him. There is a clear distinction between playing inappropriate games and the clear sexual abuse being alleged by SA. 183 In relation to SA’s evidence that the defendant had sexually assaulted her in the lounge room, intrinsic to her account of this incident was that she and her grandparents were seated on a couch in the lounge room, with SA at one end and the defendant at the other. SA identified the couch in the photographs P2. However, SW’s evidence contradicted SA’s evidence about there being a couch in the lounge room at that time (specifically the couch photographed in P2). At the relevant time, SW said that there were only two single recliner chairs in the lounge room, with SW sitting on one and the defendant on the other. SW said that whenever any grandchildren were visiting and watching television with the defendant and SW, the grandchildren would either sit on the floor or on her or the defendant’s lap. SW’s evidence therefore contradicts SA’s evidence about the couch, casting doubt upon SA’s reliability in relation to this allegation. 184 In relation to SJ, I found her to be an intelligent young person who appeared to be doing her best to honestly recall what she said happened. 185 When scrutinising her evidence there are number of matters in the evidence that raise questions over her reliability and to some extent her credibility as a witness. 186 In relation to SJ’s account of the first occasion that she was allegedly sexually assaulted, SJ has associated that occurring when she and SA were recording TikTok videos. SJ said that her parents were out at a party and that her grandparents were babysitting her and her brothers. SJ said that SA was present at the time of this incident and SA’s family members were not there at the time. 187 SJ’s mother, SDM was able to determine the date as being 16 September 2017 by reference to a Facebook post of the dinner/movie date that she and her husband and another couple attended that night. 188 Contrary to SJ’s evidence, SDM did not believe that SA was there that night. Furthermore, SA, who said she recalled the occasion that she and SJ recorded the TikTok videos, said that she and the rest of her family had been visiting SJ’s family on that occasion. 189 SJ said that when the defendant sexually assaulted her, she was sitting on his lap at the table in the outdoor entertainment area and that her grandmother was inside cooking dinner at the time. However, SA said that when she observed SJ sitting on the defendant’s lap, her grandmother was also sitting at the same table during the Tik Tok recordings. 190 If SA was recounting the same incident (and she said that there was only one occasion when Tik Tok videos were made when the defendant was present), then it is difficult to imagine that the defendant would engage in the conduct alleged by SJ with his wife sitting at the same table as he and SJ, as this would only expose -- 33 of 37 -- [2024] SADC 12 32 him to the risk of being detected. Furthermore, if SA was mistaken about SW being present, then SJ’s evidence that she pushed the defendant and ran inside to the safety of her grandmother was not supported by SA, who did not see SJ run inside the house. 191 In relation to what SJ described as the second incident, when she was allegedly being chased around her bedroom by the defendant, SJ said that this occurred when her grandparents visited and stayed for dinner. SJ said that all of her family were home at the time. However, SDM said that SJ told her that the second occasion that the defendant had sexually assaulted her occurred when SDM was wearing a particular dress. SDM remembered that the only time she had worn that dress was when she and her husband attended a wedding, and her parents-in- law came over to babysit the children. SDM was able to identify this occasion as 11 November 2017. As such, if SDM’s evidence of what SJ told her is correct, then SJ’s memory of the occasion must be flawed, as in her evidence SJ said that everyone was at home and her grandparents were over for dinner. According to SDM, SJ has associated the second occasion with SDM wearing the dress. There is no reason to doubt SDM’s recollection of what SJ had told her because SDM then specifically searched her Facebook account to confirm the date she was wearing the dress, which is to be remembered was the only time that SDM had worn that dress. 192 Furthermore, SJ’s evidence that the defendant was in her bedroom and was chasing her around in order to sexually assault her and that he only stopped when her grandmother entered the room is not supported by SW who said that no such event occurred. 193 In relation to the quad bike, SJ said that she was only sexually assaulted on it once. However, SA said that SJ told her that she had been sexually assaulted every time SJ rode on the quad bike with the defendant. Moreover, SJ’s evidence of what happened on the quad bike was different to the note that she had written about the sexual assault on the quad bike. 194 In relation to having been sexually assaulted at the table under the veranda and then next to the water tanks, SJ’s account does not withstand close scrutiny. 195 SJ said that she and SA had gone to visit their grandmother because they were bored at SA’s house. SJ said that the defendant said he was going outside for a cigarette and invited SJ to come out with him. She then detailed being sexually assaulted in the veranda area before pretending to hear her cousin approach which caused the defendant to stop. SJ said that the defendant told her that he wanted to go for a walk, and she assumed that he was going to walk her back to SA’s house but instead, the defendant took her to the area of the water tanks and there sexually assaulted her. SJ said that she pushed the defendant away and began crying. SJ said the defendant then walked away while she remained at the water tanks before making her way back to her grandparents’ house. -- 34 of 37 -- [2024] SADC 12 33 196 SJ did not explain why she returned to her grandparents’ house after being sexually assaulted by the defendant, instead of returning to SA’s house which was literally only a stone’s throw away. 197 SJ said she had only been away from her grandmother and SA for about five minutes in total but that when she returned SA was no longer there. 198 SJ said that when she walked inside of her grandparents’ house she was upset, and her grandmother asked her if she was alright. SJ said that she nodded that she was alright and despite what she said the defendant had just done to her, she said that he too asked her if she was alright because she appeared upset. Instead of returning to SA’s house, where her family and SA’s family were (and presumably SA), SJ said that instead she went into one of the spare bedrooms in the defendant’s house and started crying. I would have expected that after such a horrible ordeal the last place SJ wanted to stay would be at the defendant’s house on her own. 199 There was no explanation of what had happened to SA in the five minutes SJ was absent and being sexually assaulted by the defendant. If SA had returned to her home as she must have, then it is surprising that she would have done so without either first looking for SJ or, at the very least, calling out to her. After all, SJ said that she and SA went to see their grandmother because they were bored at SA’s house, yet only five minutes later, SA is no longer at her grandparents’ house and presumably must have returned home on her own. 200 The evidence establishes that SJ and SA enjoyed a close relationship. I find it difficult to accept that SA, given the apparent closeness of her relationship with SJ, would not have remained in close proximity to SJ throughout their time together at the defendant’s house that night. I do not accept that given the close relationship that existed between SA and SJ, that SA would simply choose to return to her home without waiting for SJ. The very nature of their relationship and the fact they went there together only a very short time earlier, would naturally have prompted SA to question SJ’s whereabouts before returning home in the dark. After all, SA and SJ were the only girls in their respective families and there was only two years difference in age between them. 201 Furthermore, it seems most unusual that having just been sexually assaulted in a most serious way SJ would decide to first, return to her grandparents’ house where the defendant was and secondly, that she would decide to retreat to one of the rooms in that house instead of returning to the safety of SA’s house where everyone else, including her parents and presumably SA, were. I found this account of events difficult to understand just as I have SJ’s evidence that when she did return to her grandparents’ house after being allegedly sexually assaulted by the defendant, that he would ask her whether she was okay because she appeared upset, with the very clear risk that she would then disclose what he just did to her. -- 35 of 37 -- [2024] SADC 12 34 202 SJ’s evidence about what SJ said happened when she returned to the defendant’s house was not supported by SW, who said she could not recall such an event ever occurring where SJ appeared upset. 203 The same observation I made in relation to SA and the couch in the defendant’s house, can be made about SJ’s account of the water tanks incident. SJ said that when she and SA visited their grandparents that night that they were all sitting on the couch when the defendant got off the couch and said that he was going outside for a cigarette. According to SW’s evidence, at the time there was not a couch in that room but two single recliner chairs. 204 In relation to the other alleged sexual abuse mentioned by SJ in her prescribed interview, SJ admitted that she did not remember the details and that what she did recall was vague and not supported by other evidence. 205 On a more general level, I observe that it is not alleged by either SA or SJ that the defendant ever spoke to them about not telling anyone what he was doing to them, and there was an obvious risk of detection in the behaviour alleged to have been engaged in, that the defendant must have appreciated, yet nevertheless, decided to take that risk if the behaviour occurred as SA and SJ described it. 206 There is no independent support for the evidence of the sexual abuse alleged by SA or SJ. 207 I reject the prosecution’s submission that the significance of SA’s disclosure to her mother that the defendant had accidentally brushed against her and the subsequent conversation with the defendant about that by his wife is evidence from which the court should infer that the defendant knew that ‘the game was up’ and the sexual assault of each child then stopped.114 Such a form of consciousness of guilt reasoning, as advanced by the prosecution, does not, in my view, arise from this evidence and in any event, it would be dangerous to employ such reasoning against the defendant based on this evidence alone. 208 I have carefully considered the defendant’s police interview. There was nothing in his presentation that suggested he was not being truthful. 209 The defendant did not embellish, nor exaggerate what he said to the police, and he made appropriate concessions, agreeing that there were many opportunities for him to have sexually assaulted SA or SJ. 210 I am not in a position where I can reject, as a reasonable possibility, what the defendant told the police during his interview. 114 Prosecution closing address: T 415. -- 36 of 37 -- [2024] SADC 12 35 Conclusion 211 Having assessed and considered all of the evidence presented to the court, I am left with a reasonable doubt that in relation to each count that at least two of the alleged sexual acts detailed by SA and SJ against the defendant have been proved by the prosecution. 212 My verdicts should not be interpreted as a finding that either SA or SJ have deliberately lied about being sexually assaulted by the defendant. I do not make that finding in this case. The verdicts are simply a product of the exacting standard of proof in a criminal trial. It is not enough for the prosecution to have proved that what SA or SJ said, possibly, or even probably, happened as they described it. Proof beyond a reasonable doubt is much more onerous than that and, in a case where the allegations have been strenuously denied by the defendant and in the absence of any supporting evidence and having scrutinised with care what SA and SJ have stated, and considering all of the other evidence presented to the court, such a demanding standard of proof has not been reached in this case. Verdicts 213 It is for these reasons that I am not satisfied beyond a reasonable doubt that either count has been proved. 214 I find the defendant not guilty of each count. -- 37 of 37 --