[2024] SADC 45

Prosecution: R Counsel: MR D MCCABE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: BRENDON VINCENT JOSEPH SEMINARA Counsel: MS M BARNES - Solicitor: CALDICOTT + ISAACS LAWYERS Hearing Date/s: 22/05/2023, 23/05/2023, 24/05/2023, 25/05/2023, 29/05/2023 File No/s: DCCRM-22-451 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 SEMINARA Criminal Trial by Judge Alone [2024] SADC 45 Reasons for the Verdicts of his Honour Judge Alexandrides 19 April 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The accused is charged with one count of maintaining an unlawful sexual relationship with a child and two counts of supplying a controlled drug to a child. The acts are alleged to have occurred between 1 January 2019 and 5 November 2020 when the victim was aged 13 years. The accused elected for trial by judge alone. Held: Count 1 - Not Guilty Count 2 - Not Guilty Count 3 - Not Guilty Controlled Substances Act 1984 (SA) s 33; Evidence Act 1929 (SA) s 34, referred to. -- 1 of 56 -- -- 2 of 56 -- R v SEMINARA [2024] SADC 45 Introduction Summary of the Prosecution Case 1 The female complainant, TR, was born on 13 December 2005. 2 In 2018, when TR was 12 years of age, she lived with her mother KN at Bell Street, Smithfield Plains together with her four siblings, two brothers LR and DR who are respectively one year and two years younger than her and two sisters KR and IR who are respectively five years and 10 years younger than her. 3 Sometime during that year TR’s aunt on her mother’s side, MN and her partner Brendan Seminara, the accused, began living with TR and her family in the family home at Smithfield Plains. The accused and MN’s two children, S and M, also came to live with TR and her family. S is two years older than TR and M is several months older than TR. M has Type 1 diabetes and has an intellectual impairment. 4 TR’s aunt MN, her uncle the accused and the two children slept in the same bedroom as TR while they lived with KN and her family. 5 Before they moved in to live at her family home, TR did not know the accused and MN well. According to TR’s memory, she had only met her aunt and the accused on two occasions before they came to live with her and her family at Smithfield Plains. 6 The accused and his family moved into their own home at Crabb Road, Smithfield Plains, a short distance from KN. During that year TR attended Year 7 at John Hartley Primary School. M also attended John Hartley Primary School. His sister, S, attended Mark Oliphant College. 7 TR would walk to the accused’s home on school days and from there walk M to school. In the following year, 2019, TR and M commenced Year 8 at the Mark Oliphant College. TR would walk to the accused’s home and then walk to Mark Oliphant College with M and occasionally S. Sometimes they would catch the bus. After school, TR would walk back to the accused’s home and remain there for between half an hour and two hours most days. 8 The accused and MN would attend KN’s home in the evening on most weekdays and on the weekends depending on weekend plans. 9 When at KN’s home the accused, MN and KN would drink alcohol, smoke cigarettes and play games. TR recalls the alcohol included tequila, vodka, Jack Daniels and another drink which was blue in colour the name of which TR could not remember. TR and her siblings were present in the shed when the adults were -- 3 of 56 -- [2024] SADC 45 2 drinking alcohol and playing games. S and M did not regularly attend with the accused and MN. 10 TR was first introduced to alcohol in her mother’s shed after the accused asked her mother if she was allowed to try it. The complainant’s mother said she did not believe TR could ‘take it’ and poured her a drink. TR was shown how to drink shots of tequila taken with salt and a slice of lemon afterwards. She experienced hangovers and other effects from the consumption of alcohol. 11 At some point, her brothers LR and DR were also given a few alcoholic drinks. 12 On one occasion when TR was drinking alcohol in the shed at her mother’s home with the adults, including the accused, it was decided that they should get some food from the McDonald’s store. 13 TR left with the accused in his car to attend McDonald’s. Before arriving there, the accused stopped his car on the side of the road near the site of the former Smithfield Plains High School. The accused then placed his hand inside TR’s pants and underwear and touched her on the vagina. The accused also placed his hand inside TR’s bra and touched her directly on the breast. This event is the first incident of alleged unlawful sexual contact. 14 On a subsequent occasion when TR was drinking alcohol in the shed at her mother’s home with the adults, TR and the accused left in the accused’s car to pick up some V brand energy drinks from the accused’s home. While the accused and TR were at the veranda at the rear of the premises, the accused sat on an outdoor chair. He asked TR to sit on his lap which she did. He asked her if she knew what porn is and then showed her a pornographic video clip on his phone. The accused then kissed TR on the mouth while using his tongue. The accused then placed his hands inside TR’s pants and touched her on the vagina. He placed his other hand inside TR’s bra and on her breasts. This is the second incident of alleged unlawful sexual contact. 15 When TR returned to her home with the accused, she went to her room. She then told her mother that the accused had kissed her. Her mother did not believe her and became angry. An argument involving yelling followed between TR and her mother. On the prosecution case, the accused was at the mother’s house when the argument occurred and his partner MN witnessed the argument. 16 On another occasion there was a celebration and TR was drinking alcohol with the adults in the shed at her mother’s place. MN became very drunk. TR’s mother wanted TR to look after MN. TR left her mother’s house with the accused and MN. When they arrived at the accused’s home, the accused put MN to bed. TR says that S and M were at home in their bedrooms. 17 While the accused was setting up the couch for TR to sleep over he asked her if she wanted phone data, chocolate and McDonald’s. He said he would be able to -- 4 of 56 -- [2024] SADC 45 3 get those things for her if she allowed him to do something. He then proposed something and TR laid on the couch and pulled down her pants and underwear. The accused then licked her vagina. 18 The accused and TR then drove to Woolworths where he purchased some phone data and chocolate, and to McDonald’s where he purchased some food. 19 When they then returned to the accused’s home he again asked her to allow him to do what they had previously done. He then licked TR’s vagina while she laid back on the couch. TR heard MN stirring and the accused stopped. TR then pulled her underpants and pants up. Both acts of cunnilingus comprise the third incident of alleged unlawful sexual contact. 20 In 2020 when TR was in Year 9, the accused introduced her to methylamphetamine. The accused demonstrated to TR how to consume the drug using a glass pipe and supplied her with a pipe containing methylamphetamine which TR smoked. 21 TR became a regular user of methylamphetamine from that time and would use the drug with the accused daily including before school and after school. TR used the drug with the accused in the shed at the accused’s home. 22 On a later occasion while in the shed at the accused’s home, MN suggested to TR that she could try methylamphetamine. MN supplied TR with methylamphetamine while the accused was present. From that point TR would use methylamphetamine in the presence of both the accused and MN. 23 The fourth incident involving sexual contact between the accused and TR on another occasion occurred when TR was in Year 9. The accused supplied TR with methylamphetamine which she smoked on this occasion. 24 That incident occurred at the accused’s home in the bedroom he shared with MN. The accused directed TR to the bedroom to smoke methylamphetamine. He gave her a pipe containing methylamphetamine and a lighter. While she was smoking the drug, the accused asked TR to put her hand down his pants. TR put her hand down his pants and wrapped her hand around his penis. The accused then placed his hand underneath her underwear and onto her vagina. 25 The incident in the bedroom occurred about one month before TR was sent to live with her father in the Riverland in November 2020. 26 TR began attending school at Rivergum College after moving to the Riverland. 27 In 2021 TR, together with other girls from her school, visited the home of a friend who TR had met at school in the Riverland. During the visit, one of the visiting friends, K, became unwell and required medical attention at the local hospital. Later the same day, TR spoke to K’s foster father Mr Andrew Talbot who -- 5 of 56 -- [2024] SADC 45 4 was also the School Principal. Mr Talbot was making inquiries about the welfare of the girls who were present when K became unwell. 28 TR disclosed to Mr Talbot that she had been inappropriately touched by her uncle. Mr Talbot informed the authorities. TR was subsequently interviewed by the police. 29 The accused was arrested and charged. The accused’s home at Crabb Road, Smithfield Plains was searched. The police located several pipes, commonly used for the smoking of methylamphetamine, in a steel box in the shed. 30 The police also seized a mobile phone from the accused. The stored text messages from the phone were extracted and its contents electronically searched. A total of 347 text messages between 19 February 2019 and 4 February 2020 which were extracted are said to be between the accused and TR. The messages are said to indicate the nature and character of the relationship between the accused and TR during that period. Summary of the Defence Case 31 The accused gave evidence and denied any indecent touching of the complainant by kissing her, touching her on the breasts and vagina or causing her to touch him on the penis. The accused denied performing cunnilingus on the complainant. The accused denies causing the complainant to watch pornography. The accused denied having ever supplied the complainant with methylamphetamine. 32 On the defence case the accused, his partner MN and their two children S and M moved from Sellicks Beach to Smithfield Plains in about April 2018. The family moved in to live with MN’s sister KN and her family to help KN, who was not coping. They remained there for three to four weeks before moving nearby to their own home in Crabb Road, Smithfield Plains. 33 The accused had very little contact with the complainant before moving to Smithfield Plains. He had met the complainant and her brother LR previously, but had not met the other children before moving to Smithfield Plains. 34 When living at Crabb Road, the accused saw KN and the children almost every day. They would either have dinner at the house or after dinner would go around for a coffee. In 2018 when M attended primary school, the accused would drive M to KN’s with MN. From there the children would walk to school. 35 In 2019, M began attending Mark Oliphant College. At first the accused would drive M to school. M then asked if he could walk to school and from that point onwards TR would walk him to school. The complainant was informed about his diabetes and how to deal with it if something happened. S had a different schedule because she was in the FLO program and did not walk with them much. In 2020, LR began attending Mark Oliphant College and he would also walk with -- 6 of 56 -- [2024] SADC 45 5 M and the complainant. The complainant would come to the accused’s home and from there walk to school. 36 Occasionally KN and the children would come to the accused’s house and spend time with him and his family. That happened less frequently than the accused and his family visiting KN at her home. 37 When KN and her children attended the accused’s home the children would find their own fun. The adults would usually go to the shed and smoke. 38 The shed at Crabb Road was about five metres by 10 metres. It had some furniture including a lounge, a seat, two computers and a television. The shed had a single door which could be locked from the inside. 39 When the accused visited KN’s house he would spend time in the shed. MN and KN would be there and KN’s children would run in and out on occasions. The accused’s children very rarely went to KN’s house to spend time in the shed. The accused very rarely went to KN’s house to spend time in the shed without MN. 40 There were occasions when he was in KN’s shed when the children were not allowed to come in. The shed would be locked and the children would not be allowed in. The accused, MN and KN would do some ‘adult things’ in there, namely smoking methylamphetamine. That occurred during the period 2018 to 2020. They would also smoke methylamphetamine in the shed at the accused’s house. The accused and the other adults would smoke methylamphetamine in the shed often; not every week but may be a couple of times a month. 41 The accused would smoke methylamphetamine at his home a couple of times a week. KN’s children were at his house on occasions when he smoked methylamphetamine but they did not come into the shed which was locked. 42 The accused spent between $300-$400 each fortnight on methylamphetamine to supply himself and MN. The accused obtained about a gram or half a ball sometimes. The accused would consume half a ball a fortnight of methylamphetamine just by himself. 43 When socialising with KN in her shed the accused, MN, KN and KN’s children would drink alcohol. Other adults would sometimes be there including their friend Julianne. The accused’s children did not drink alcohol when in the shed. 44 The complainant drank alcohol in the shed. The first time the accused saw the complainant drink alcohol was at his home when she was in the swimming pool. MN and their children, together with KN and all of her children, were at the accused’s house. The complainant would have been 13 or 14 years of age. The adults were drinking pear cider and the complainant also drank a pear cider. -- 7 of 56 -- [2024] SADC 45 6 45 On the occasions when the complainant drank alcohol her mother was present and gave the complainant permission to drink the alcohol. LR and DR would drink alcohol in the shed after being given permission by their mother. LR was about 12 years old when he first started drinking alcohol in the shed and DR was about 11 years old. 46 The accused described the atmosphere in the shed as happy. There would be music and they would dance. The adults would use crude language and swear words in the shed while the children (including the complainant) were present. 47 The accused would say ‘random’ swear words like ‘cock’, ‘vagina’, ‘fuck’, ‘fucking’ and ‘fucken’. The complainant’s brothers were also present when he used those words. KN was present and did not object to the use of those words when the accused was speaking to the complainant. 48 The accused did not mean anything sexual when he used the words ‘cock’ and ‘vagina’ when speaking to the complainant. He used those terms absolutely at random, just out of the blue. It would make the children and the adults laugh. 49 The accused would also tell rude jokes to make them laugh and make everyone happy. The complainant, LR, DR and on occasions the accused’s children were present when he told the rude jokes. There were other adults present also including KN, MN and on occasions Julianne. 50 The accused’s son M would engage in what he referred to as ‘dicky touch’. M would randomly say ‘dicky touch’ and then hit himself on the side of the leg pretending to hit his front area but missing it. M would do that in front of the other children. LR and DR played that game with M. The complainant did not join in on that game. The accused would occasionally join in the game with his son. The accused never touched the complainant when playing that game. 51 The accused acknowledged that the text messages extracted from his phone and presented by the prosecution were communications between him and the complainant. In relation to the language used in the course of the text messages, the accused said it was consistent with an extension of the type of language used between them and others when in each other’s company. The accused said the messages and language did not have a sexual meaning. 52 The defence case is that none of the allegations of unlawful sexual contact between the accused and the complainant occurred. 53 The accused through his counsel asserts that there is a significant lack of detail about the allegations in relation to the timing of each of the incidents, the circumstances in which they occurred and how they unfolded. 54 The defence also points to inconsistencies between the complainant’s evidence concerning the first, third and fourth alleged incidents of unlawful sexual contact and the account she first gave to the police about those incidents. -- 8 of 56 -- [2024] SADC 45 7 55 The defence suggest that the allegations, particularly in relation to the second and third alleged incidents of unlawful sexual contact, are inherently implausible. Evidence in support of that assertion was led to suggest that there was a high degree of risk of detection in relation to each of those incidents. 56 The defence also suggested that the complainant lied in her complaint to her mother about the accused trying to kiss her in retaliation because the accused had become angry with her and reprimanded her for not changing her sister’s nappy. 57 The evidence concerning the exposure of the complainant to pornography by the accused was challenged by the defence. It was submitted that the complainant in her evidence confirms that she was aware of pornography from Year 8 at school and by 2020 was accessing pornography through her telephone. The implication was that her knowledge of the xnxx.com pornography website could not be attributed to the accused. 58 The defence also led evidence that the complainant had a troubled relationship with her mother, KN. The evidence established that KN monitored the complainant’s telephone use and access to social media. There were arguments between them about the use of the internet. 59 The evidence established that the complainant frequently left the family home and stayed away overnight, sometimes for several nights. The evidence also established that TR frequently stayed at the accused’s home overnight and sometimes for several nights when she left the family home. On some of the occasions she stayed at the accused’s home after she had been absent from the family home, having stayed at a friend’s home. 60 The accused denied supplying methylamphetamine to the complainant at any time. While he acknowledged the use of methylamphetamine at both premises when the children were also at the premises, he said it was consumed in a locked shed and never in their presence. 61 The defence case is that there were only a few occasions in which the accused was present or involved in a conversation about illicit drugs with the complainant. There was an occasion when the complainant approached the accused and MN, told them she had seen her mother smoking something in the shed and asked them what her mother was smoking. On another occasion, the accused was present when KN told her children, including the complainant, that if they were considering using drugs, they should speak to her first. There was another occasion when the complainant raised the issue of drug use, particularly methylamphetamine, when discussing a school project she was involved in about drug use. 62 On the defence case, the evidence establishes that the complainant would have been aware from information she obtained as part of a school project of the appearance of methylamphetamine, the equipment and method used to smoke the drug and the effects of the drug from her school project. -- 9 of 56 -- [2024] SADC 45 8 63 On the defence case it would have been apparent to the complainant that her mother, her aunt and the accused were users of methylamphetamine given the regularity and circumstances of the use and having observed the mother smoking a glass pipe in the shed. 64 The defence argues that the allegation that TR was supplied with methylamphetamine before school is implausible having regard to the effects of intoxication while attending school, the presence of her brother and M and the cost to the accused. 65 The defence asserts that the accused was a credible and reliable witness. His preparedness to make admissions about conduct such as supplying alcohol to children in a family environment, the use of inappropriate and rude language and jokes in the presence of children and his drug use established that he was a frank witness. 66 The evidence of MN is said to have largely corroborated the accused’s evidence in relation to key areas including the use of methylamphetamine and the fact it was common for the adults, including the accused and the complainant’s mother, to use inappropriate language around the children. 67 The defence argued in support for its case that the third incident of alleged unlawful sexual contact said to have occurred on the couch would have been exposed to anyone in the house who was in the hallway or the toilet area. 68 It was submitted that the evidence led by the defence established a hypothesis consistent with the accused’s innocence in relation to all three charges. Proceedings 69 The accused elected to be tried by judge alone. The trial proceeded on the following counts: First Count Statement of Offence Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence Brendon Joseph Seminara between the 1st day of January 2019 and the 5th day of November 2020 at Smithfield Plains or another place, maintained an unlawful sexual relationship with [T], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: a) touching her genital area on more than one occasion; b) touching her breasts on more than one occasion; -- 10 of 56 -- [2024] SADC 45 9 c) causing her to watch pornography in his presence; d) kissing her; e) performing an act of cunnilingus upon her on more than one occasion; f) causing her to touch his penis. This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016. Second Count Statement of Offence Supplying a Controlled Drug to a Child. (Section 33F(a) of the Controlled Substances Act, 1984). Particulars of Offence Brendon Joseph Seminara between the 1st day of January 2019 and the 5th day of November 2020 at Smithfield Plains, supplied a controlled drug, namely methylamphetamine, to [T], a person under the age of 18 years, knowing or being reckless as to the fact the substance was a controlled drug. Third Count Statement of Offence Supplying a Controlled Drug to a Child. (Ibid). Particulars of Offence Brendon Joseph Seminara between the 1st day of January 2019 and the 5th day of November 2020 at Smithfield Plains, supplied a controlled drug, namely methylamphetamine, to [T], a person under the age of 18 years, knowing or being reckless as to the fact the substance was a controlled drug. Legal Principles Onus and Burden of Proof 70 The prosecution carries the onus of proof. The accused is presumed to be innocent unless and until the prosecution can prove each of the elements of the offence beyond reasonable doubt. If there remains a reasonable doubt about any of the essential elements of the offence, then the prosecution has not proven its case and the accused is entitled to an acquittal on that charge. Expressed in another way, if there is a reasonable possibility that the accused has not committed the offence as alleged, the prosecution case must fail. The accused is not obliged to prove anything to secure his acquittal. -- 11 of 56 -- [2024] SADC 45 10 71 The elements of each of the offences with which the accused has been charged and which the prosecution must prove beyond reasonable doubt are discussed below. Assessment of Testimonial Evidence 72 The testimonial evidence of witnesses must be assessed for both its credibility and reliability. 73 I am permitted to consider the demeanour of the witnesses when determining the credibility and reliability. In doing so, I am required to take into consideration that witnesses who come before the court vary in age, background, education, intellectual capacity, ability to express themselves and personal characteristics. 74 The assessment of the evidence of each witness requires a consideration of, amongst other things, its cogency and consistency, whether it is consistent with other facts which I accept, whether the witness has made inconsistent statements in the past and whether the witness has been shown to have lied in the past. 75 The prosecution case rests on the evidence of the complainant and I am required to scrutinise her evidence carefully. 76 I may accept or reject a witness’s evidence in its entirety. However, I may reject some aspects of the evidence of the witness and accept other parts of the evidence of the same witness. Evidence of the Accused 77 The accused elected to give evidence. He was not required to. I remind myself that his evidence is to be assessed in the same way as any other witness and must not be treated as deserving less weight simply because he is accused of criminal offences. 78 The onus and burden of proof is not altered because the accused has given evidence. The onus remains on the prosecution to prove the offences charged beyond a reasonable doubt. 79 The trial is not a preference between the evidence of the complainant and the accused. If I accept what he says, then I must acquit him of the charges. Even if I do not positively accept the evidence of the accused but I consider that there is a reasonable possibility it is true, then I must acquit the accused. If I were to reject the accused’s evidence, that is positively reject his evidence, it would not follow from a rejection of his evidence that I would find him guilty of the charges. 80 If I reject his evidence, that is if I positively reject his evidence, then I must put his evidence aside. Having put that aside, the question will remain; has the prosecution, based on the evidence that I accept, proven the guilt of the accused beyond reasonable doubt? -- 12 of 56 -- [2024] SADC 45 11 Discreditable Conduct 81 The evidence in this case disclosed conduct which is not the subject of any charges in which the accused was apparently engaged which might reasonably be regarded as discreditable. 82 There are also allegations of discreditable conduct which are the subject of criminal charges and which do not form part of the allegations with respect to other charges on the Information. 83 The uncharged conduct disclosing discreditable conduct was admitted pursuant to s 34P of the Evidence Act 1929. 84 The evidence and its relevance can be summarised as follows. 1. The accused allegedly supplied methylamphetamine to the complainant frequently during the period of the alleged offending on occasions which are not the subject of charges. The evidence was admitted pursuant to s 34P(2)(b) of the Evidence Act as circumstantial evidence having strong probative value of a fact in issue, namely to demonstrate that the accused had a tendency to supply the complainant with methylamphetamine and engaged in that conduct. 2. A total of 347 text messages between the accused and the complainant over the period February 2019 to February 2020 recovered from the accused’s mobile phone containing crude and offensive language and potentially veiled references to sexual acts. The evidence was admitted pursuant to s 34P(2)(a) of the Evidence Act for a permissible use, namely to show the degree of familiarity and closeness between the accused and the complainant during the period of the alleged offending. The evidence was relevant on the prosecution case to the assessment of the evidence of the complainant to understand why she may have continued to engage with the accused and her responses to the accused’s alleged conduct. The evidence was not admitted to demonstrate that the accused had a sexual interest in the complainant. 3. The accused was involved with other adults in the supply of alcohol to minors, including the complainant, at private residential premises. The evidence was admitted pursuant to s 34P(2)(b) of the Evidence Act for a permissible use, namely to demonstrate the relationship that existed between the accused and the complainant and the circumstances in which it is alleged the offences occurred. The accused’s involvement in the supply of alcohol to minors other than the complainant was relevant to -- 13 of 56 -- [2024] SADC 45 12 place in its proper context the circumstance of the supply of alcohol by the accused to the complainant. 85 The evidence of potentially discreditable conduct was not relevant for any other purpose. 86 I am satisfied that the probative value of the evidence which discloses discreditable conduct outweighs its prejudicial effect. 87 The evidence, if accepted, is not to be used for the impermissible use, namely to reason that because the accused has engaged in the discreditable conduct he is a person of bad character and therefore more likely to commit the offence with which he is charged. 88 I am satisfied in relation to the evidence of discreditable conduct referred to in 2) and 3) above that the permissible use can be kept sufficiently separate and distinct from the impermissible use so as to remove only appreciable risk of the evidence being used for that purpose. Separate Verdicts 89 I remind myself that the prosecution is obliged to prove each of the charges based on the evidence relevant only to the charge. The accused is not to be convicted on the basis that if he were to be found guilty of one of the offences, he must therefore also be guilty of the other offence or offences. Initial Complaint and Elaboration 90 The evidence disclosed that TR made an initial complaint of the unlawful sexual acts to Mr Andrew Talbot, the Principal of the school she attended in the Riverland in 2021. 91 I remind myself of the directions I am required to follow pursuant to s 34M of the Evidence Act about the use of the initial complaint evidence. 92 First, the evidence of the complaint by TR to Mr Talbot informs the court about when the allegations made by TR against her uncle first came to light. 93 The second permissible use is as evidence of the degree of consistency of conduct of TR. As a matter of law, the making of a complaint or disclosure of sexual abuse or misconduct is evidence of the consistency of conduct of an alleged victim about that sexual abuse or misconduct. It may indicate that the complainant’s behaviour or conduct in complaining or disclosing to Mr Talbot what her uncle is alleged to have done to her and the content of that disclosure, are consistent with the occurrence of the sexual abuse which she described in her evidence in court. 94 The evidence of TR’s disclosure of the alleged sexual abuse to Mr Talbot is not evidence of the truth of what TR said to Mr Talbot. The law does not permit -- 14 of 56 -- [2024] SADC 45 13 the use of what TR disclosed to Mr Talbot as evidence of truth of what she said happened. Just because she disclosed an allegation to Mr Talbot does not mean it was true when it was said. The disclosure cannot be used as evidence which supports the truth of her complaint that her uncle did any of the things alleged against him. 95 However, the disclosure to Mr Talbot can be used to assess TR’s credibility to the extent to which the disclosure demonstrated a degree of consistency of her conduct in making the complaint and the degree of her consistency in her evidence about the alleged conduct of the accused. 96 It is for me as the trier of fact in this case to determine the degree or extent of the consistency of conduct demonstrated in TR’s disclosure to Mr Talbot. To the extent that the disclosure is consistent in terms of her conduct and her narrative, it may be used to support her credibility. 97 There may be a variety of reasons why an alleged victim of sexual offending makes a complaint or disclosure of the alleged offending at a particular time to a particular person. It follows that there may be a variety of reasons why a complaint was not made at an earlier time or to another person. Motive to Lie 98 The defence case contained suggestions that TR lied about the alleged sexual abuse by the accused, potentially because of his lack of support for her in relation to her poor relationship with her mother and being moved from her home in Adelaide to live in the Riverland with her father. 99 I remind myself of the approach I must take when considering the evidence about which it is suggested possibly provides a motive for TR to lie. 100 I must consider this argument and any evidence said to support such a motive to lie. I must consider whether that argument and evidence affects whether I accept TR’s evidence. 101 The defence is not required to prove that TR had a motive to lie. If I reject the argument or theories put forward by defence that does not mean that TR is telling the truth. It does not strengthen the prosecution case. There may be many reasons why a witness may lie. 102 The defence have suggested a possible reason but if that reason is rejected there may be another or indeed other reasons. It is not possible to discern why a person may lie. 103 I am not to treat TR’s evidence as more credible or more believable because I have rejected one possible reason for her to be lying. There may be other reasons that no-one has identified. -- 15 of 56 -- [2024] SADC 45 14 104 If I conclude that there is no evidence that TR has a motive to lie, or lied for a particular reason, I must not conclude that she has no reason to lie and is therefore telling the truth. Elements of the Offence Count 1 - Maintaining an Unlawful Sexual Relationship With a Child 105 The prosecution is required to prove four elements beyond reasonable doubt to establish the offence of maintaining an unlawful sexual relationship with a child. 106 The first element is that the accused maintained a relationship with TR during the relevant period covered by the charge. The charge relates to alleged conduct from 1 January 2019 to 5 November 2020. There is no dispute that the accused is the complainant’s uncle through his relationship with MN. There was a continuing familial relationship between them which was maintained by the accused during the period of the alleged offending. 107 The second element the prosecution must prove is that there was an unlawful sexual relationship between the accused and TR. 108 An unlawful sexual relationship is defined at law as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over the period encompassed within the particulars of the charge. An unlawful sexual act means any act that constitutes a sexual offence. The alleged unlawful acts are set out in the particulars of the charge on the Information. There are six different unlawful sexual acts particularised. 109 The prosecution is not required to allege particulars of the unlawful sexual acts that would be necessary if the acts were charged as separate offences. The prosecution is not required to prove the particulars of the unlawful sexual acts as if the acts were charged as separate offences, but must prove the general nature or character of those acts. 110 As a matter of law, each of the particularised acts pleaded in the charge, if proven, constitutes a sexual offence. 111 The acts particularised on the Information, at paragraph a) touching her genital area, paragraph b) touching her breasts and paragraph d) kissing her, would each constitute the offence of indecent assault. 112 An indecent assault is an assault that is accompanied by or committed in circumstances of indecency. An assault for the purpose of this offence is simply any intentional, that is a deliberate rather than accidental, application of force to another person without lawful excuse or justification. Touching someone would be sufficient to constitute an assault for this purpose provided the touching was intentional and unlawful. -- 16 of 56 -- [2024] SADC 45 15 113 The application of force or touching must be unlawful, that is without lawful justification or excuse. The alleged acts in this case are denied and no such lawful excuse or justification has been raised. 114 The assault must be indecent. That means the assault must be accompanied by or committed in circumstances of indecency. Here 'indecency' means something which offends contemporary or existing community standards of propriety or decency and which has a sexual connotation or overtone to it. 115 The act particularised in paragraph c) in the Information, namely causing her to watch pornography, would constitute the offence of exhibiting indecent or offensive material to a minor. 116 The act particularised in paragraph e) in the Information, namely cunnilingus, would constitute the offence of unlawful sexual intercourse. The offence of unlawful sexual intercourse is established if the prosecution has proved that there was an act of sexual intercourse engaged in between an adult and a person under the age of 17 years. Sexual intercourse is broadly defined at law and includes the act of cunnilingus, which includes licking any part of the vagina. 117 The act particularised in paragraph f) in the Information, namely causing her to touch his penis, would constitute the offence of committing an act of gross indecency. An act of gross indecency in the context of this case involves doing something of a sexual nature or with sexual overtones, with or in the presence of a person under the age of 16 years. TR was under the age of 16 at the time of the alleged conduct. Whether an act is indecent is to be determined according to contemporary standards of behaviour. A gross act of indecency means an extreme or flagrant act of indecency. 118 In relation to this second element of the offence, namely, to establish that there existed an unlawful sexual relationship, the prosecution must establish beyond a reasonable doubt that there were at least two unlawful sexual acts during the period encompassed by the charge on the Information. 119 It is not necessary to prove all the alleged unlawful sexual acts occurred, only that two or more sexual acts particularised on the Information occurred in the relevant period. 120 It does not matter which two unlawful sexual acts are proven, so long as there have been at least two unlawful sexual acts proven to have occurred over the period alleged in the charge. 121 The issue of consent or lack of consent of TR to any of the alleged acts of unlawful sexual conduct simply does not arise. As a matter of law, a child, which for the purpose of these offences is someone under the age of 17 years, is deemed not capable of consenting to any form of sexual activity. During the period alleged in the charge TR was under the age of 17 years and did not have the legal capacity to consent. -- 17 of 56 -- [2024] SADC 45 16 122 Thirdly, the prosecution must prove that TR was a child during the period of time encompassed by the charge. For the purpose of this offence a child is a person who is under the age of 17 years. TR was born on 13 December 2005. There is no dispute that she was a child during the relevant period. 123 The fourth element the prosecution must prove is that the accused, Brendan Seminara, was an adult during the period encompassed by the charge. There is no dispute that between the dates charged the accused was an adult. Counts 2 and 3 124 In relation to counts 2 and 3 on the Information, supplying a controlled drug to a child contrary to s 33F(a) of the Controlled Substances Act, the prosecution is required to prove that between the dates alleged at Smithfield Plains; 1. The accused supplied methylamphetamine to TR. In this context supply means that he provided her with methylamphetamine. 2. Methylamphetamine is a controlled drug. 3. The accused knew or was reckless as to the fact that the substance was controlled drug. The prosecution is not required to prove that the accused knew or was reckless as to the fact that the substance was methylamphetamine. 4. TR was under the age of 18 years of age at the time of the offence. Summary of Evidence at Trial – Alleged Incidents of Unlawful Sexual Contact with a Child (Count 1) First Incident – Near the former Smithfield Plains High school site on the drive to McDonald’s 125 TR told the court that on one occasion at night they had been drinking and were all getting a bit too drunk when they decided they needed some food. 126 The accused decided that they could get McDonald’s. He invited her along in the car to get McDonald’s. TR said they got in the car and drove in the opposite direction to where she thought they were going. They went down a side street near the old Smithfield Plains High School and pulled over on the side of the road. It was late at night and dark. It was just her and the accused in the car, a blue Ford wagon.1 127 TR marked a map labelled Exhibit P1 where she recalls the car pulled over on Beaumont Road before the intersection on Cushen Street. She could not see the name of the street where she lived on the map. 1 T64.8-11. -- 18 of 56 -- [2024] SADC 45 17 128 TR said she was a bit confused about why they stopped on the side of the road. Then the accused ‘out of nowhere’ asked if he could put his hands down her pants. She was even more confused and just shrugged. 129 The accused tried to put his hands down her pants but her seatbelt was in the way. There was a comment about the seatbelt and then she took the seat belt off and he put his hand down her pants. The accused then put his hands underneath her underwear and touched her vagina.2 130 TR said that he also touched her ‘boobs’. She said she was wearing a bra and he touched her inside the bra. 131 Five minutes after first putting his hands down her pants, the accused made a comment about how she was not wet and then pulled his hand out. The complainant said that she pulled her pants back up and put her seatbelt back on and they drove to McDonald’s.3 She said she pulled her pants back up. She had pulled them down because he was not able to get his hand under. 132 She said that from the time he first touched her to when they drove off about five to 10 minutes passed. 133 TR did not remember the accused saying anything other than the comment about her not being wet during this time. 134 They went to McDonald’s, ordered food and drove home. When they got home, they distributed the food out and she went to her room. 135 TR saw the accused again that night. She was not sure what the accused and MN were doing that night after the alleged incident happened. It happened when she was in Year 8 (2019).4 136 Under cross-examination TR refreshed her memory from her statement and agreed she did not tell the police in her first statement of 30 March 2021 that the incident occurred on Beaumont Road. 137 TR agreed that the first time she had told police that it had happened on Beaumont Road was in a statement given by her in the week prior to the trial when she was a shown a street map of the area. At the time of her first statement, she said that it occurred on a side street. She cannot recall if she was shown a map at the time of giving her first statement. 138 She agreed that to get from Bell Street to McDonald’s, the accused did not need to go past Smithfield Plains High, because it would be in the opposite direction. 2 T65.16-26. 3 T65.16-30. 4 T66.26-33. -- 19 of 56 -- [2024] SADC 45 18 139 TR agreed that in her evidence in chief, she said that she had taken her seatbelt off in the car. After refreshing her memory from the first statement given on 30 March 2021, she agreed that she told police then that the accused had unfastened her seatbelt. TR said that she is now not sure which statement is correct. 140 TR agreed that she had said in examination in chief that she had pulled her pants down so that he could get his hands under. TR agreed that it was her recollection that she had pulled her pants down. 141 TR said that she was not too sure if she had been drinking alcohol before the drive to McDonald’s on that occasion. 142 Under cross-examination, the accused agreed that on occasions he would attend McDonald’s with TR to get food.5 The accused denied that on any occasion after proceeding down Bell Street he would turn left onto Beaumont Road and that on such an occasion he touched TR on the vagina and breast. Second Incident – On the veranda at Crabb Road when picking up V energy drinks 143 TR said that there was another incident when something similar happened between her and the accused. 144 She could not recall how long after the first incident it occurred. She said it was on a weekend. 145 TR said she believed there was a celebration at her mother’s home. TR, the accused, MN and her mother had been drinking tequila and wanted to get V energy drinks. TR said she and the accused drove to his house to get the drinks. 146 TR said that they got the drinks and sat outside. The accused then asked her if she knew what porn was. She said that she did not know what it was but the boys at school talked about it. 147 The accused showed her a porn video on his phone. The video or porn showed a male and a female having sex. She did not pay much attention to the video because she did not want to watch it. TR said that the accused accessed the video through a website called xnxx.com on his telephone. It was an old Samsung phone with a shattered background. 148 While that was happening, the accused told her to sit on his lap and asked her if she was ever kissed before. She replied ‘no’ and the accused put his hand down her pants while she was sitting on his lap and started kissing her. At first it was just on the mouth and then it was with his tongue. His hand was still down her pants. TR could not remember if it was under her underwear or not. TR said that when he touched inside her pants or underpants it was on her vagina. 5 T293.1-5. -- 20 of 56 -- [2024] SADC 45 19 149 The accused’s other hand was up and underneath her bra. The accused made a comment that her ‘boobs’ were not small. At that time, she was being bullied for having small ‘boobs’.6 150 The incident occurred just outside the back screen door where there was a little table and chairs. It continued for around five minutes and then he stopped. The accused and TR then got back in the car and went back to her mother’s place. 151 TR said that while they were sitting out the back no one else saw them. She said that she knew that M and S were in their rooms because they were not at her mother’s. TR said M and S usually stayed home over the weekends playing games. 152 TR said when she and the accused went back to her mother’s house as they walked through the gate at the front yard the accused told her that she was a ‘good kisser’ and walked off. 153 TR went to her room for a bit and then decided that she wanted to tell her mother. She went out to look for her mum to tell her that the accused had kissed her. TR was standing at the back door when she told her mother. TR said her mother got very, very angry at her. She said that she was a ‘lying bitch’ and she should not be saying things about her uncle like that. 154 TR said she dropped to the ground crying because she did not like the fact that her mother did not believe her. TR said MN who was in the shed at the time heard her and what she was saying and made a comment.7 155 TR said she was upset after the conversation with her mother. She ran away from the house and went to a playground near her high school. She met up with a few friends and went home with them. That night she stayed at the home of a friend of her friend Ashlyn. She could not recall if she spent one night or more than one night at that person’s house. She eventually returned to her mother’s house. 156 Under cross-examination, TR said the kissing only happened on one occasion. She agreed that she told her mother that the accused ‘tried to pash’ her. TR agreed that she did not tell her mother about the pornography or being touched on the vagina. She said it was because she did not want to open up to her mother about it. She did not know if her mother would believe her. In the event her mother did believe her about the kissing, then she was going to tell her about the pornography and the touching of the vagina.8 157 In re-examination on this topic, TR said that the reason she was not sure if her mother would believe her was because they were fighting all the time. She said that they did not really have a mother-daughter connection. She did not really know 6 T67.32-T68.10. 7 T69.11-21. 8 T115.9-32. -- 21 of 56 -- [2024] SADC 45 20 if she would be believed for that reason and also because her mother was resuming a closer relationship with MN and the accused.9 158 Under cross-examination, TR could not recall how long it was after the first occasion of touching that she went with the accused back to his house to get the V drinks. She agreed that she was willing to go with him on this occasion. TR was happy to get in the car with him because she did not think that he would touch her inappropriately again. 159 In re-examination on this topic, TR said because she did not react in the way the accused wanted on the first occasion, she did not think it would happen again. She said he seemed disappointed after saying that she was not wet.10 160 Returning to cross-examination, TR said S and M were both at the accused’s house when the offending occurred. She does not remember any discussion about herself and the accused going to get the V drinks. She knew that she was at the accused’s house to get the drinks and she does not remember why she got out of the car at the accused’s home. The accused went inside to get the drinks, while she stayed outside. She was sitting in a chair and table right outside the back door of the house. 161 TR was shown Exhibit D3 and confirmed that the back door was a glass sliding door and screen. The table and chairs were closer to the dining area of the house, rather than Bedroom 2. 162 TR was not sure when the incident occurred. After she was at the accused’s house, they went back to her house. The next time she saw her mother that night was when TR returned home and her mother came inside the house.11 When she told her mother that the accused tried to pash her, her mother got angry and they had a yelling argument. The accused and MN were still at the house when TR and her mother were arguing. MN came inside the house at some point while TR and her mother were still yelling.12 163 Under cross-examination, the accused agreed there were occasions when drinking at KN’s house that he would go back to his house to get some energy drinks. He agreed that TR would come with him on occasions. The accused said they would stop in the driveway and TR would go inside with him. He agreed they would enter the house through the rear sliding door to the dining room. The accused agreed there was some outdoor furniture on the veranda in that area.13 164 The accused said that he did not remember sitting on the outdoor furniture with TR on any of those occasions. He denied sitting there and showing TR a 9 T165.19-25. 10 T164.26-T165.1. 11 T149. 12 T149.18-29. 13 T293.33-T294.30. -- 22 of 56 -- [2024] SADC 45 21 pornographic video on his mobile phone. He agreed that he had used his phone in 2019 to watch pornography on xnxx.com.14 The Third Incident – The offer to purchase phone data etc and the subsequent conduct on the couch at Crabb Road 165 TR recounted another occasion she remembers when something similar happened between her and the accused. 166 The incident occurred at the accused’s house. TR was at home when she was told to go with MN and the accused to their house because MN was way too drunk and her mother wanted her to look after MN. 167 MN had been drinking at TR’s mother’s place with the accused and TR’s mother. TR said on that occasion there was some sort of celebration but she could not remember what celebration. It was different to the usual drinking occasions because there was a lot more alcohol than usual. At the accused’s house they got MN inside. The accused put MN to bed. TR said she was sitting on the couch and the accused started setting up blankets on the couch where TR would be sleeping. 168 TR said she does not remember how it led up but she does remember being asked if she wanted data or chocolate and McDonald’s. The accused said if she allowed him to do something he would be able to get those things for her. TR said she was shocked because she did not know what to do. She said the accused told her what it was that he was proposing to do, ‘later’ … ‘right before it happened’.15 169 TR said she laid back on the couch and pulled her pants down along with her undies. The accused put his face against her vagina and started licking it. At that time, she knew it was something called ‘eating out’ which is what everyone at school was calling it. That went on for around five to 10 minutes before he stopped. TR said she pulled her undies and pants back up. The accused said ‘let’s go and get the data and stuff’. TR said she could not recall if the accused said anything while he was doing the sexual act.16 170 TR said she and the accused went to Woolworths where they ended up getting phone data and chocolate and then went to McDonald’s. 171 TR said after McDonald’s they went back to the accused’s home where she ate. The accused set up the data on her phone. 172 TR said the accused then asked her if he could do it again. She was shocked. She could not remember if she said anything in response. 14 T294.31-T295.12. 15 T71.5-23. 16 T71.25-32. -- 23 of 56 -- [2024] SADC 45 22 173 TR said the same process occurred. She pulled her pants down and her undies and the accused started licking her vagina again. TR was not sure for how long he did this. She was not sure if he said anything when that was occurring. 174 The accused stopped when they heard MN stirring. It sounded like she was going to the toilet. TR said she pulled her pants back up and the accused went to his room while she stayed on the couch. TR said nothing else happened between them that night. 175 TR said she did not know when that incident occurred. She said she was in Year 9 at the time. 176 Under cross-examination, TR agreed that when the accused and his family moved to Crabb Road, she would often visit their house. She had been inside their house often. S and M had their own bedrooms and MN and the accused shared a bedroom. 177 The house had a bathroom, an open-plan kitchen, dining and living area. She agreed that if a person was coming down the hallway from one of the bedrooms, you could see straight into the living room. 178 There was no door that separated the living area from the hallway. She disagreed that the couch was located under the air-conditioner. She disagreed that the TV was located on a cabinet on the opposite side of the room where the side of the front door was. 179 TR disagreed that the couch was situated against the wall where the air conditioner was mounted which ran alongside the carport and not situated alongside the front door entrance area at the time she said the incident on the couch occurred.17 180 A floor plan of the house was tendered as Exhibit D3 and marked by TR to show the position of the couch at the time of the incident. TR marked the couch along the wall adjacent to where the front entrance to the house is located. TR disagreed that the couch was never in that location. TR denied that from that position on the couch, you could see down the hallway to the toilet and all the bedrooms (T155). 181 TR was shown a photograph, Exhibit D6, which she recognised as a photograph of the lounge room of the accused’s home at Crabb Road. TR agreed that the lounge depicted in the photograph was the same couch at the house during all her visits there in 2018 and 2019. The photograph showed the couch up against the wall under the air conditioner and to the other side of the room from where TR said it was located. TR said she was unsure if the couch was only ever in the position shown in the photograph or slightly away from the wall. 17 T151. -- 24 of 56 -- [2024] SADC 45 23 182 TR agreed that when sitting on the couch in that position, one could see back up the hallway towards the bedroom.18 183 In relation to timing, TR recalled that there was some type of celebration that evening. When prompted, she said that she believed that she told the police that the celebration was her mother’s birthday but was now not sure whether it was. TR could not say what time of year the incident on the couch occurred. 184 TR agreed that she had said in evidence that she lay back on the couch and pulled her own pants and undies down but could not now be sure whether it was she herself who pulled them down. 185 TR was not sure if she had told the police that she had pulled down her own pants and underwear. She could not recall if she had told the police that the accused had pulled her pants down. After refreshing her memory from her statement of 30 March 2021, TR agreed that she told the police that the accused started pulling her pants down. TR said that she is not sure which statement is correct.19 186 TR also agreed that she had said in evidence that after returning from the shops, the same process occurred and she pulled down her pants and undies. She agreed that she had told the police in the statement that the accused on that occasion had pulled down her pants. TR was not sure which statement was correct. 187 TR agreed that there was a foldout bed set up in the lounge room for her to sleep on. TR disagreed with the suggestion that she never slept on the foldout bed and not the couch. TR said that she slept on both. 188 Under cross-examination, the accused denied that there was ever an occasion when MN was so drunk that TR had to go with him to help MN to bed. He said there was never an occasion where MN was so bad that she needed help getting to bed. 189 The accused said that TR would sleep on the foldout bed in the lounge when she slept over. The foldout bed was stored in the laundry. He agreed that he would set up the bed with sheets and a pillow. The accused denied that there was an occasion when TR spent the whole night on the couch.20 190 The accused denied that there was an occasion when TR came back with him to his house, she slept on the couch and he licked her vagina. 18 T155.12-15. 19 T157.1-12. 20 T265.35-T266.12. -- 25 of 56 -- [2024] SADC 45 24 The Fourth Incident – In the accused’s bedroom at Crabb Road while smoking methylamphetamine 191 TR said there was another occasion when the accused touched her on her vagina. 192 TR said the incident occurred in the accused and MN’s bedroom at their home. She said that the accused was giving her meth to smoke. He told her that if she wanted to smoke to go into his room so she could blow it straight out of the window. 193 TR said that while she was smoking the meth the accused asked her to put her hand down his pants. The accused then put his hand down her pants at the same time. TR said the accused gave her the pipe and a lighter with meth already in it. TR said she lit it up, inhaled and then blew it out the window. 194 TR said she put her hand down the accused’s pants on the inside of his underwear and onto his penis. She said she wrapped her hand around his penis. In her evidence, TR demonstrated how she did this while holding a water bottle.21 195 TR said the accused’s hand went onto her vagina underneath her underwear. TR could not remember him saying anything, and she did not know if he had said anything while it was happening. TR was not sure how long her hand was in his pants for or how long his hands were in her pants. 196 TR said that she pulled her hand from his pants and the accused pulled his hand from hers. She took one smoke from the pipe and then walked out of the room. 197 The incident occurred at nighttime and while she was in Year 9. TR could not remember which part of Year 9 she was in. She was not with her mother for the whole of Year 9 and left her mother’s when her father came to pick her up at the start of November. 198 TR said that the incident in the accused’s bedroom occurred a long time before her father picked her up. She said that it was around one month before she was picked up. 199 TR said that nothing happened to her in the month after the bedroom incident. She said that she did not smoke meth during that time and there was nothing sexual that happened between her and the accused during that time. 200 Under cross-examination TR agreed that she identified that the last time that the accused had touched her inappropriately occurred in his bedroom. TR was unsure if on that occasion the accused was in the room fixing the TV. TR was 21 T78.30-T79.25. -- 26 of 56 -- [2024] SADC 45 25 unsure if she was with the accused and MN in the shed on that occasion before they all came inside.22 201 TR could not recall if she told the police in her statement that before going into the accused’s bedroom, she, MN and the accused had been drinking and smoking in the shed. TR was not sure if she then told the police in her statement that the accused went to his room and started fixing his TV. 202 TR then refreshed a memory from her statement and agreed that she had told the police that about a week later, following the couch incident, was the last time she smoked meth with MN and the accused, and the last time the accused touched her. 203 TR agreed that in her statement she said that all three of them were drinking and smoking in the shed. TR said that she was now unsure if that occurred. TR was unsure if they had then moved into the lounge room as suggested in her statement. 204 TR agreed that she had said that the accused went into his room and started fixing his TV. TR said that she did not remember saying that to the police. TR said that she was not sure if there was an occasion when the accused was fixing his TV when MN was also in the bedroom. 205 TR disagreed with the suggestion that the accused had never touched her in a sexual manner in his bedroom. She disagreed that the accused never gave her any methylamphetamine to smoke in the bedroom. She disagreed that he had never given her any methylamphetamine at all. 206 The accused gave evidence about the alleged incident. 207 The accused told the court there was a TV in the lounge room of his house. There was also a TV in the master bedroom between 2018-2020. At one point the speakers broke in the TV in the bedroom. He tried to fix it himself. MN was in the room. The complainant was in the lounge room. The accused was not sure if TR later came into the bedroom. He said he never gave the complainant meth to smoke. He said there was never a time in his bedroom where he touched her inappropriately.23 208 MN gave evidence that she was in the bedroom with TR when the accused was in the room fixing the TV. 209 Under cross-examination, the accused denied that he ever consumed methylamphetamine in his bedroom. 22 T159.36-38. 23 T270.3-T271.3. -- 27 of 56 -- [2024] SADC 45 26 Summary of Evidence at Trial – Alleged supply of methylamphetamine to a child (Counts 2 & 3) First Incident – In the shed at Crabb Road (Count 2) 210 TR said that she talked to the accused about drugs. The accused told her that if she ever wanted to try drugs, he would be able to supply it from a safe supplier. The accused said to make sure she tried it while he was there and that she had the appropriate amount. 211 TR said the accused supplied her with a drug. She could not exactly remember how it led up to him giving her the drug. 212 TR said he gave it to her in a little plastic bag. It looked like crushed up broken glass. It came from a small cardboard box from his shed. The accused also pulled out a pipe. TR indicated the size of the pipe by holding her thumb and index finger apart. It was agreed by counsel the size indicated was six to 10 centimetres. TR said the pipe had a long part. She described a small ball part like a little bowl attached to the end of the pipe with a hole at the top. TR described the pipe as made of glass.24 213 TR said the accused demonstrated how to use the pipe to smoke the drug. She said the accused put the crushed-up ‘glass’ into the bowl part of the pipe. He held the pipe part to his mouth and lit a lighter under the bowl part.25 TR said he was inhaling the fumes that were coming from the melted-down drug. 214 TR said after the demonstration, the accused asked if she wanted to try it. She said ‘sure’. TR said she copied exactly what he did and when she started inhaling it she started coughing. She said she felt very, very dehydrated, even though she was drinking. She said her vision started going blurry. She was drinking an energy drink. TR could not remember feeling anything else.26 215 TR said the incident occurred in the shed at the accused’s house while only she and the accused were present. It was during the day and she was not sure if it was a weekday or weekend. TR said that she was in Year 9 when it happened. 216 The accused did not say what the substance was.27 TR found out later it was meth because she did a health class in school where they were learning about different drugs. TR said she knew it was the drug that they had learnt about because the side-effects, how it looked and how it was meant to be smoked linked up to the poster she was making at school about meth. 217 Under cross-examination, TR agreed that as part of the school project she learnt about methylamphetamine and that it was also known as ice or meth. She agreed she learnt about how people might take meth. She learnt that it was through 24 T74.9-T75.23. 25 T75.28. 26 T75.32-T76.9. 27 T76.28. -- 28 of 56 -- [2024] SADC 45 27 smoking. She learnt that they might smoke it through an ice pipe. She denied having seen photographs of ice pipes. 218 TR agreed that as part of the project to learn about drugs she was required to create a poster. She agreed that she looked to find photographs to put on the poster. The photographs were mainly what meth looks like. TR agreed the photograph showed that meth look like a crystalline substance. She agreed she found photographs that showed that meth was a clear substance. She agreed that as part of the lessons she learnt that someone might smoke meth in a glass pipe and to light the pipe up. She learnt how one might smoke from the pipe and ingest the meth. 28 219 TR was not sure if she had a conversation with her mother, MN and the accused about the topic after those lessons. She was not sure if during such a conversation MN and the accused said if she was thinking about doing drugs she needed to tell them first. TR said that she had not ever had that sort of conversation with her mother about drugs. 220 TR agreed that she had had a conversation with MN and the accused when they had said ‘you should come and speak to adults if you are thinking about doing drugs’.29 She agreed that occurred after the lessons at school. 221 TR agreed that she had never seen the accused, MN, or her mother smoking meth inside of her mother’s house or in the shed 30 222 TR denied having seen her mother in the shed smoking an ice pipe or asleep with a pipe on her chest. TR denied having seen that and then having asked MN and the accused about what she had seen. TR did not ask them what her mother was smoking and the accused did not tell her that it was dope or cannabis. 223 Under cross-examination TR maintained that she had smoked meth with MN. She said that she had smoked methylamphetamine at her house. TR maintained that she had smoked methylamphetamine at MN and the accused’s house. Daily use of methylamphetamine before and after school (uncharged) 224 TR said that this was not the only time that she smoked what she believed was methylamphetamine.31 225 TR said shortly after the first occasion she would have it almost daily, every time she went to the accused’s house. TR said it was either in the morning or after school. 28 T111.10-T112.15. 29 T113.16-19. 30 T113.26-T114.2. 31 T77.6-9. -- 29 of 56 -- [2024] SADC 45 28 226 TR said then MN offered her the drug if she wanted to try it. TR could not recall how long after she first started smoking the drug that MN offered it to her to try. TR said that MN offered her the drug when she, MN and the accused were sitting in the shed at the accused’s house. 227 TR could not remember how it came up that MN made the offer. TR replied ‘sure’ and MN went into the house to get it. TR said that when MN had left the shed to collect the drug, the accused then told her that when MN showed her how to use the drug, to pretend she was coughing and to ‘pretend exactly what I did when I first tried it’.32 228 TR described the side-effects of the drug as she used it more frequently. She said that it depended on how much she had used in a day. She said if she had it in the morning and also after school, she would have strong side-effects. TR referred to dehydration and blurry vision. TR said the more she had it, the more she got used to it and so the less dehydrated she felt and the less blurry vision she experienced. She could not feel other side-effects.33 229 TR said that when she smoked the drug with the accused and with him and MN there was never anyone else involved. 230 Under cross-examination TR agreed that in Year 9 she would go to her uncle’s place after school with her cousins and her brother. TR agreed that she might stay there for a little while but would always be there with her cousins after school. 231 TR disagreed with the suggestion that she did not smoke methylamphetamine on those occasions.34 The last incident in the accused’s bedroom at Crabb Road (Count 3) 232 The alleged incident involving the supply of methylamphetamine to TR (Count 3) occurred in conjunction with the fourth alleged incident of unlawful sexual contact between the accused and TR. The evidence at trial about this incident is dealt with earlier under the section dealing with the fourth incident under Count 1. It is unnecessary to repeat it here. Evidence at trial – Context of the relationship between the accused and the complainant Activities and behaviour at KN’s home and shed 233 TR said the accused and MN would come to her mother’s house very often, almost every day. It was just the two of them, usually straight after school. 32 T77.27-28. 33 T77-T78. 34 T161.34-38. -- 30 of 56 -- [2024] SADC 45 29 234 She said on the weekend they would come over early in the morning or late in the afternoon depending on the weekend plans. M and S would not come over on weekends often. 235 TR said when MN and the accused came over, they would spend time in the shed at the back. There they played games, smoked and drank. They would drink alcohol and energy drinks. They would drink tequila, vodka, Jack Daniels and another ‘blue drink’.35 236 TR said that she drank alcohol with them. She recalls the first occasion. The accused asked her mother if she was allowed to try it and her mother said that she did not believe that TR ‘had the balls for it’.36 Her mother then poured her a shot of tequila and TR took it from her. 237 TR said the drink was tequila in a shot cup. She said she was taught to ‘take it’, by licking salt off the hand taking the shot and then putting a lemon in her mouth.37 238 TR said she took the drink and choked because it was very gross. She had more than one drink that day. Her mother, MN and the accused were present. It occurred when she was in Year 8. That was her first year at Mark Oliphant College. 239 TR said she started drinking regularly with adults after that occasion. It was mainly tequila, and then it became vodka or Jack Daniels and on a special night it would be the blue alcohol drink. 240 TR said she experienced normal hangover effects. She would have a headache and would not be able to see or walk properly. She said she experienced those effects on the day of drinking and afterwards. 241 On these occasions, TR said her brothers LR and DR would have a few drinks at some point and then two of her friends, Ashlyn and Jamie had a few drinks. She knew Ashlyn and Jamie from primary school. 242 Under cross-examination, TR agreed that when the accused came to her mother’s, he would usually have MN with him. That would be in the evening during the week or during the day on weekends. 243 TR agreed that they would go into the shed together, drink alcohol together and smoke cigarettes. 244 TR agreed that this was a standard occurrence when she was in Year 8 and Year 9. The accused and MN would hang out more at her mother’s house than at their own house. 35 T61.13-14. 36 T61.21-23. 37 T61.38-T62.2. -- 31 of 56 -- [2024] SADC 45 30 245 TR agreed that the first time she had alcohol was at her mother’s house and her mother was present. MN and the accused were also there. TR did not recall asking for alcohol. 246 She agreed the topic came up and that it was up to her mum to give permission. TR did not remember MN or the accused saying she had ‘better ask her mum first’.38 247 TR said that her mother came to give permission when the accused asked her if she, TR, could have some. TR said that she did not recall having asked for a drink first.39 248 She agreed that it was sometimes her mother that would give her alcohol and that sometimes it was MN. 249 TR agreed that the adults interacted in a fun joking sort of way. She agreed that she was present from time to time in the shed with the adults when they were drinking. 250 She agreed that her brothers and sisters came in and out of the shed as well. She agreed that the jokes would include rude jokes being made by the adults. TR said there would be jokes made about how small her boobs were, jokes about the dicky touch game and other jokes.40 251 TR said her mother and MN were present when the jokes were being made. She was unsure if there would be rude nicknames given to the adults by each other or rude nicknames given to the children. 252 TR remembered the adults saying things using words such as ‘cock’ when speaking in the shed. She did not remember the words ‘vagina’ or ‘fanny’ being used.41 253 She agreed that words such as ‘cock’ were used by all the adults in the shed including her mother. She did not recall her mother ever telling the others not to say rude words to her children. She agreed that her mother did not say that to the accused. 254 TR agreed that there was a lock on the shed door and that the shed would be locked on occasions when the adults were in there. The children were not allowed to go in. She agreed that there was a window next to the door to the shed. She said that you could not see inside the shed from the window because there was usually something up against the window. She denied looking into the window on one occasion and seeing her mother smoking using a pipe in the shed. 38 T106.37-T107.1. 39 T107.2-11. 40 T108.9-21. 41 T108.35-T109.4. -- 32 of 56 -- [2024] SADC 45 31 255 DR, the younger brother of TR, gave evidence about his involvement with the accused and MN, including the activities in the shed at his family home. 256 DR said after the accused’s family moved to their own home, the accused and MN would come over often, mainly on the weekends. They would normally sit in the shed and talk. He would sometimes sit and talk with them in the shed. Sometimes the complainant would be there. When they were in the shed, they would talk, play games and sometimes the adults would drink. He would sometimes drink Southern Comfort with them. DR could not remember who poured the drinks for him. He said sometimes he poured it himself.42 257 Under cross-examination DR agreed that his mother would be present when he was drinking alcohol. She had given him permission to drink it. 258 DR said there was a window on the shed at his mother’s house. He has looked inside that window before and he could see inside the shed. TR was not with him when he looked inside the window. He could see his mother, the accused and MN. He could see them talking. He only looked inside the window and saw them there together three times.43 There was a lock on the shed at his mother’s house. There were occasions where the adults were inside the shed and the shed would be locked. 259 The accused said after they moved to Crabb Road, they would see KN and her children almost every day. They would go to KN’s house for dinner or go around there for coffee. 260 The accused told the court that the shed at KN’s house had a table, chairs, a TV, a stereo and a table-tennis table at some point. When they went to KN’s house, they would spend time in the shed. Usually he, MN and KN would be in the shed and KN’s children would run in and out of it on occasion. The accused said he rarely went to KN’s house without MN.44 261 The accused said sometimes he, KN and MN would lock the shed and do adult things in there. He smoked methylamphetamine at the time, and he would smoke it at KN’s house. They would lock the door on the shed often, from the inside. They would smoke meth a few times a month in there. None of the children were inside the shed when they smoked meth. 262 The kids would ask to have a drink of alcohol. He does not think the kids were drinking alcohol when he first moved into KN’s house. The first time he saw the complainant drink was when they had a pool at Crabb Road. He, MN, M, S, KN and KN’s kids were present at his house. The complainant was either 13 or 14 and it was summertime. The complainant had a pear cider which she got from her 42 T167-T169. 43 T176.23-25. 44 T227.29-31. -- 33 of 56 -- [2024] SADC 45 32 mother. They had the cider at his house. The adults were drinking the pear ciders before TR asked for one. He saw TR have one cider. 263 The accused said he saw TR drinking in the shed at KN’s house. MN was there. TR asked her mother for permission, and she said yes. TR’s friends Ashlyn and Jamie also drank alcohol in KN’s shed. Ashlyn’s mother was also there and she gave permission for the accused to give alcohol to Ashlyn. He also saw LR drinking alcohol in the shed when he was 12. KN gave LR permission. He also saw DR drinking alcohol. He was 11 years old. KN gave DR permission.45 264 The accused said the children and the adults would use crude words when they were in the shed. He would say words like 'cock', 'vagina' and 'cock', 'fuck', 'fucking', 'fucken' when he spoke to TR.46 He spoke to TR in the same way that he spoke to the boys. He did not mean anything sexual when he used the words 'cock' or 'vagina' when speaking to TR. Her mother never objected to him using those words to TR. MN was also there when he would say those things. MN never objected to him using those words to TR. 265 The accused said he would also tell rude jokes to the children. He was trying to make them laugh and make everyone happy. TR, LR, DR, and on occasions M and S would be around when he told those jokes. He also told those rude jokes to his children when MN, KN and sometimes Julianne were around.47 266 Under cross-examination the accused said TR was in the pool at his house when he first saw her drink alcohol.48 TR asked her mother if she could have a pear cider. She then drank the cider both in and outside the pool. TR was at the end of Year 8. 267 The accused denied that it was he who suggested TR try tequila on the first occasion she drank it. He said that TR asked and he asked her mother who gave permission.49 268 The accused said TR would not drink with the adults every weekend. 269 He said under cross-examination that in Year 9, TR would not drink with them every weekend. He said TR would drink tequila. He, MN and KN showed TR how to take tequila with lemon and salt. He was there when TR had her first shot of tequila.50 Activities and behaviour at accused’s home and shed 270 Under cross-examination, TR agreed she was a frequent visitor at MN and the accused’s home at Crabb Road. She would go there every day on the way to 45 T239-T242. 46 T243.11-17. 47 T242.28-T243.35. 48 T286. 49 T288.4-5. 50 T287.19-37. -- 34 of 56 -- [2024] SADC 45 33 school to pick up M and after school to take him back. She had been in the house on many occasions. M and his sister S had their own rooms and MN and the accused shared a bedroom. 271 TR agreed the shed at Crabb Road was set up somewhere where people could go and sit and hang out. There was a table, a few chairs and a television in the shed. She was not sure if there were beanbags in the shed. 272 TR agreed her mother, MN and the accused would hang out in the shed at Crabb Road. They would also hang out in the shed at her house at night. She agreed that they would also use one or other of the sheds on the weekend during the day. 273 DR was cross-examined about attending the shed at the accused’s home. DR said when he went to the accused’s house, he would sometimes go and sit out in their shed with the adults,51 but they mainly socialised at his mother’s house. When he went to the accused’s house, he would also see M and S. Sometimes DR would go inside the house to see them. Sometimes when he was inside the house, the adults would be in the shed. 274 DR said there was a lock on the shed at the accused’s house. There were occasions when the adults would be in the shed and it would be locked, and the children would not be allowed inside. There was no window on the accused’s shed. The use of methylamphetamine by the adults and conversations with TR about drug use 275 The accused told the court in 2018-2020, he and MN were not working.52 They were both on Centrelink payments. After paying the rent and the bills they did not have much money left over, including to spend on methylamphetamine. He would spend $300-$400 per fortnight on methylamphetamine between himself and MN. For that money they got a gram or half a ball of methylamphetamine. In a fortnight he would normally smoke half a ball, which is about 17 points. He would normally get about 50 smokes from half a ball.53 276 The accused said he mostly consumed it himself but would also give it to MN and friends and KN. He and MN were smoking methylamphetamine daily. He had some left over to give to friends. The accused denied having enough methylamphetamine to supply to TR each morning before school. He did not notice any methylamphetamine going missing in this period. 277 The accused denied giving methylamphetamine to TR and denied seeing the complainant ever smoking methylamphetamine. He never saw MN give the complainant methylamphetamine. 51 T171.35. 52 T235.7-11. 53 T235-T236. -- 35 of 56 -- [2024] SADC 45 34 278 He said when he smoked meth at KN’s house, he used an ice pipe. He could not be sure if he ever took one of his pipes to KN’s. At her house they usually used her pipe and consumed her methylamphetamine. 279 The accused said there was an occasion in early 2019 when TR had looked in the window and had seen her mother smoking in the shed. She spoke to him and MN and asked what her mother was smoking. The conversation occurred at his house. The accused said he told TR in response, ‘It’s probably dope’.54 280 The accused recalled another conversation with TR about drug use in KN’s shed. KN told TR that if she ever wanted to try any drugs, to let her know first. The accused said he just sat in the shed. He did not really listen at that time. TR was speaking to KN and he was not really involved in the conversation. They were talking about methylamphetamine. The accused said TR was doing a school project about methylamphetamine at the time. It was in early 2019 and TR would have been 14. There were no drugs visible in the shed at the time of the conversation. 281 The accused said TR never came to him to say that she wanted to try drugs. He never heard TR tell MN or KN that she wanted to try drugs. He cannot recall any discussion involving TR about how one might go about smoking or using methylamphetamine. 282 The accused said he could not really remember the conversation. He said he used to switch off when that sort of stuff happened. He said he had his head in his phone most of the times when TR’s aunt and her mother spoke with her. 55 283 The conversation did not cause him a concern that she had seen the adults using drugs. 284 The accused could not recall when the conversations about the school project and about TR seeing her mother smoking occurred in relation to each other. However, he thought the school project conversation occurred first. Text messages between the accused and the complainant 285 TR said that the first mobile phone she got was S’s old phone. She could not remember how long she had that phone for. 286 She said between the time she obtained that phone until she left to live with her father she had three or four different mobile phones, each with a different number. 287 TR said she used the mobile phones to communicate with the accused by text message. TR said that while she was living with her mother, she had the nickname 54 T248.32-36. 55 T250.16-38. -- 36 of 56 -- [2024] SADC 45 35 ‘Fizzgig’. She said that everyone in her family called her by that name including her mother, her siblings and her aunt and uncle, the accused.56 288 TR was shown a schedule of text messages sent and received between two mobile phones tendered as Exhibit P2. 289 TR reviewed the text message referred to at line 10 dated 20 February 2019 and confirmed that it contained her nickname ‘Fizzgig’. She said that she was known by that name at the time of the date recorded against the text message. She said she was using a mobile telephone at that time and was using it to send text messages to her uncle, the accused. 290 TR was referred to the message at line 10 of the schedule dated 20 February 2019 referring to the recipient as ‘Fizzgig’ and asking the recipient to make sure M has a juice box when ‘you guys walk him’. She gave evidence that she had a cousin called M who has diabetes. TR said the significance of a juice box with respect to M is that he would have to drink a juice box and have a muesli bar on the way home from school depending on his blood sugar levels. 57 291 TR was referred to a selection of the text messages sent and received on the accused’s telephone. TR said she did not recognise any those text messages. 292 TR said that she did not recognise the message exchange from line 90 dated 12 March 2019. TR recognised the reference in the message to ‘Dragonia’ as a reference to a game that she played involving merging eggs and flowers to make dragons. She said that she played that game on her mobile phone when she first got S’s old mobile phone. She confirmed that she was playing that game as at 12 March 2019 when she was in Year 8.58 293 TR then considered the text messages commencing at line 91 through to the line 99 dated 13 March 2019, a Wednesday, which commenced with a message sent to the same number by the accused’s phone commencing with the word ‘cock’. The sender then refers to the recipient as ‘gorgeous’ and asks if the recipient wants to be picked up. The recipient responds accepting the offer to be picked up. The text exchange ends with a message from the accused’s telephone which reads ‘Ok ill be there in 5 mins same spot’ followed by an emoji of a face blowing a kiss. TR said she did not recognise any of those messages. 59 294 TR considered the messages commencing at line 137 on 13 July 2019 where there is a reference by the recipient to showering to remove green out of her hair. TR said she did not recognise the text messages. She said that she remembers circumstances where she had green hair colour because it was sports day. She had 56 T86.3-15. 57 T93-19-37. 58 T88.2-31. 59 T88-33-38. -- 37 of 56 -- [2024] SADC 45 36 no memory of telling the accused about her green hair. TR said she would spray her hair green on sports day at Mark Oliphant College in Year 8.60 295 TR did not recognise the messages referring to ‘Shadow Hunters’ commencing at line 321 dated 24 July 2019 of the schedule of texts. She said she was familiar with the Netflix program called ‘Shadow Hunters’. She has seen all the series. The program involves different supernatural characters including demons, angels and zombies.61 296 TR was referred to a message commencing at line 40 of the schedule dated 22 February 2019. She did not recognise the text messages which the recipient says ‘No emoji on this thing’. The sender on the accused’s telephone responds, ‘Need a new phone’ and then says, ‘Do your chores and save up’. TR said there was a system for doing chores at the house where she lived with her mother. There was a whiteboard with their names and a certain chore for each of the days of the week. There was an arrangement where they were promised money in exchange for doing chores. The arrangement was that they would get $10 a week. The arrangement applied to her and her siblings. She said they never received the money.62 297 The accused gave evidence about the text messages in Exhibit P2. He confirmed that the reference to ‘Fizzgig’ relates to TR. He agreed that these are the sorts of messages that he would send TR. The accused did not remember sending the messages. 298 The accused remembered having a conversation with TR about a pimple removing strip she would put on her nose. He could not remember if he sent the message to TR because he did not know who the phone number belonged to. The accused then remembered sending the message and recalled a conversation about it with TR. 299 The accused remembered sending and receiving messages saying ‘cock, cock vagina'. He sent them because it was random and that is just how they spoke to each other. The accused said he did not intend a sexual meaning when using the word ‘cock’.63 300 The accused was referred to two emojis on line 37 of Exhibit P2 dated 22 February 2019 depicting a face with a tongue protruding from the mouth followed by a hand showing the ‘okay’ symbol. The accused said it meant ‘okay’ and a ‘smiley face’. He did not mean anything sexual by those messages.64 60 T89-1-34. 61 T92.15-31. 62 T93.38-T94.19. 63 T274.2-15. 64 T274.16-31. -- 38 of 56 -- [2024] SADC 45 37 301 The accused said he stopped using this kind of language with TR after she accused him of trying to ‘pash’ her. This allegation was in August 2019.65 302 The accused recalled sending the message at line 79 dated 12 March 2019 which read 'Hello. Do you love your new phone'. A further message from the accused at line 80 included two emojis. The accused said he did not mean anything sexual by the two emojis included in the message and explained the emojis meant ‘look okay’. He did not mean ‘finger in hole’ when he sent the emojis.66 303 He agreed TR understood the two emojis to mean ‘finger in hole’ and he assumed she thought it was sexual in nature. He said he replied ‘lol’ because he realised she thought it meant ‘finger in hole’. The accused said when he responded, “I bet you are” and “lololol” to her message “I coming” he thought that she meant she was coming to his house. The accused said he did not think she meant anything sexual in her response, but that she meant it in a mucking around way. He said he connected the “I coming” to her misunderstanding, that the previous emoji referred to ‘finger in hole’, so then he sent ‘I bet you are lololol’. He says that to a lot of people in his messages.67 304 The accused said ‘I bet you are’ in reference to ‘I coming’ because TR was going to his house that day with LR, her brother. 305 Under cross-examination on this text message exchange, the accused agreed that TR interpreted the emoji as a reference to inserting a finger into a vagina. He agreed that was a fairly explicit sexual image. When asked if he was concerned when he thought his niece thought he was sending her an explicit sexual image, the accused said if TR thought he was sending it to her in a sexual way yes, but this is how they spoke and it did not surprise him. The accused said that TR knew it was not like that. The accused said that TR’s mother gets on her phone all the time and sees that so it was no secret, it was just how they spoke.68 306 Returning to examination in chief, the accused said when using crude language in the shed in front of the children, the adults would talk about ‘coming’. KN used that language more than he and MN. 307 The accused said when he sent the messages, he did not have any sexual interest in TR. He would say the same kinds of things in front of KN to the complainant. KN never said anything to him about his language around the children or TR. 65 T275.23-37. 66 T276.17-25. 67 T276-T277. 68 T302.22-35. -- 39 of 56 -- [2024] SADC 45 38 308 In relation to the message at line 93 sent on 13 March 2019 ‘Do you want me to pick you up gorgeous’, accused said he would call TR gorgeous. He stated MN and people at TR’s school would call her this as well.69 309 Under cross-examination the accused was asked about the message at line 91 on 13 March 2019 at 8:01a.m. sent to TR which read ‘Cock’. The accused said that he sent the message as just a random thing. He said there was no intention behind it. The accused said that this was the type of conversation he had with a lot of people. He said it was not with all the children. He said he would use this type of communication verbally with TR’s brothers, LR and DR. The accused said that he was not messaging them as often as he would TR. He could not recall whether he messaged S with the word ‘Cock’ in the same way that he had messaged TR on this occasion.70 The showing of pornography by the accused to TR and knowledge of and access to pornography by TR independently of the accused 310 TR said that she was first introduced to pornography by the accused during the second alleged incident unlawful sexual contact which occurred on the rear veranda at the accused’s home. 311 She said the video or porn showed a male and a female having sex. She did not pay much attention to the video because she did not want to watch it. 312 TR said that the accused accessed the video through a website called xnxx.com on his telephone. It was an old Samsung phone with a shattered background. 313 Under cross-examination, TR agreed that when she was in Year 8 she knew pornography could be accessed on a mobile phone. She agreed she has used a mobile phone to look at porn but that did not happen until Year 9. 314 TR agreed that she had used the phone to look at a porn website called xnxx.com. 315 The accused told the court he never showed TR pornography on his phone. 316 He said he watched pornography on his phone. 317 The accused said there was a conversation with KN, MN, LR, DR and TR in KN’s shed when the topic of pornography was raised. The accused said TR was not in the shed at the start of the conversation. He said KN had gone through LR’s phone and saw that he had been searching Porn Hub and xnxx.com on his phone.71 69 T282.12-22. 70 T304-T305. 71 T283.17-38. -- 40 of 56 -- [2024] SADC 45 39 318 The accused said he was listening for most of the conversation. KN said to LR and DR, in TR’s presence, that it is not a good thing to watch pornography and that she, KN, would get into trouble. 319 The conversation happened in approximately July 2018. 320 The accused said he never used the website xnxx.com to show pornography to the complainant. 321 Under cross-examination, the accused agreed that he had watched pornography on his phone on a website called xnxx.com during the period 2019 and 2020. He said that KN had mentioned that website when she raised the topic of pornography with her children. The complainant’s involvement in the household at Crabb Road and assisting with M’s needs 322 TR said M attended primary school with her in Year 7 and his sister S attended Mark Oliphant College that year. 323 She said when the accused and his family moved in she had a mobile phone. It was S’s old phone. 324 TR said she attended John Hartley Primary School at the time. She then went to Mark Oliphant College. M also went to Mark Oliphant College. 325 TR would see M and S every day. They would walk to school together and sometimes caught the bus. She would walk to their home and then to school with them. 326 After school they walked back to MN and the accused’s home and TR would then walk home. 327 Before walking home, she would stay at MN and the accused’s home for between half an hour to two hours. 328 Under cross-examination, TR agreed she knew that M had an intellectual disability and that was a reason that she was given responsibility to make sure he took his juice box. She agreed that his diabetes was monitored on a telephone app. She did not have the app on her phone. The app was on M’s mother’s phone or his father’s (the accused’s phone). 329 In relation to the circumstances in which M would need to drink a juice box and eat a muesli bar, TR said that she learned that depending on whether he had a low blood sugar he needed something with a high sugar level to make sure he was on neutral levels.72 She said that she would communicate with MN or the accused 72 T95.3-8. -- 41 of 56 -- [2024] SADC 45 40 about whether that happened, or not, through text messages over the phone. She said that the messaging happened from time to time.73 330 The accused told the court that M has type 1 diabetes and an intellectual disability. He was diagnosed with diabetes when he was seven. He requires insulin treatment every day. He and MN would need to monitor the treatment when M was younger. An app was installed on his phone in about 2013 to track M’s insulin. Between 2018-2020 they used that app daily. 331 The accused said in 2018 he would drive M to KN’s and make sure all the other kids were ready for school and then he and MN would walk them to school. 332 The accused said in 2019, M started at Mark Oliphant College in Year 8. Initially he drove M to school and then M told him that he wanted to walk. The complainant would walk with him to school pretty much every day. The accused told TR about M’s diabetes and what to do if something happens to him. S also attended the school. She had a different schedule, so she did not walk with them much. 333 KN’s son LR started at Mark Oliphant College in 2020. In 2020 LR started walking with TR and M to school. 334 The accused said TR would always come to his house to pick M up and walk him to school. 335 The accused said that he and MN gave TR a phone to replace the one that had been damaged in exchange for doing chores at his house. He said TR did not do the chores. The complainant staying at the accused’s home after conflicting with her mother 336 Under cross-examination TR agreed that she had been having many fights with her mother throughout Year 8 and Year 9. 337 TR agreed that during that period, she would often go and stay with her friends or run away from home for a short period of time. 338 TR agreed that a short time before she went to live with her father she had gone to stay with MN and the accused for a few days. TR said that occurred after coming back from Ashlyn’s. 339 TR agreed that she went to stay with MN and the accused including on occasions after the accused had begun touching her inappropriately. In response to a suggestion that she was happy to go and stay with them, TR said that she did not have anywhere else to go.74 73 T96.14-27. 74 T163.7-8. -- 42 of 56 -- [2024] SADC 45 41 340 TR agreed that MN made an offer that she could stay and that she, TR, said yes and that she was happy to do that. 341 TR said that when she stayed at the accused’s she either stayed on the couch or a foldout bed. 342 The accused told the court that between 2018-2020, TR was in trouble with KN for using her phone in a particular way multiple times. This occurred about 10 times. KN would ask him and MN to talk to TR about it. The accused said he would have conversations with KN in relation to the complainant on the topics of the phone, school and behaviour. 343 He said he became aware that TR was staying away from home. If TR came to his house, her mother knew that she was safe there, so she would stay for as long as she needed to. He said TR also went to her friend Ashlyn’s house and stayed there for as long as she needed. 344 The accused said he gave the complainant another phone. He put the ‘Kid Guard PRO’ app on TR’s phone in 2020 at KN’s request. He said he did not monitor it himself.75 345 TR came and stayed at his house 15-20 times. About five of these occasions were multiple nights in a row. The longest TR ever stayed was three nights. When TR stayed over, she stayed on a fold-out bed in the loungeroom. TR may have fallen asleep on the lounge, but they always got the fold-out bed out for her to sleep on. The last time that TR stayed at his house was at the end of 2020. She was still living with her mother at the time. She had stayed for two to three nights. TR went to live with her father on the same day she had last stayed at the accused’s house overnight for several days. Evidence at Trial - Significant Issues 346 The accused and MN said they were approached by the complainant in early 2019 about something she had seen in the shed at her home.76 The complainant told them that she had seen her mother in the shed through the window and had asked what her mother was smoking in there. The accused told her that it was ‘probably dope’.77 347 On another occasion the complainant raised the topic of illicit drugs in a conversation in the shed. The accused MN and KN were present. The accused was not really listening at the time, but KN said that if the complainant ever wanted to try any drugs to let her know first. The conversation concerned the drug meth. It arose because of a project the complainant was doing at school. The conversation occurred in early 2019 when the complainant was 14 years of age. 75 T264.37-T265.11. 76 T248; T336. 77 T248.21-36. -- 43 of 56 -- [2024] SADC 45 42 348 The accused became aware of an allegation halfway through 2019 that he had kissed the complainant on her lips. The allegation was raised with him when he was driving home with MN after leaving KN’s home. KN telephoned him after maybe a minute after he left when he got to the end of the street. KN told him that the complainant had accused her of trying to ‘pash her’.78 349 The accused had been at KN’s house with the complainant and KN’s other children including the toddler IR. KN and MN were not at the house. 350 The accused did leave the house on that occasion with the complainant to return to his house to pick up some V energy drinks. 351 The accused was in the shed when he asked the complainant to change IR’s nappy which was soiled. The accused later observed that the complainant had not changed the child’s nappy and asked the complainant again to change the child’s nappy. The complainant and the child left the shed. The child returned to the shed and the accused saw that her nappy had not been changed. The accused became frustrated and scolded the complainant for being on her phone and ignoring his requests to change the nappy. The accused called her a ‘fucking idiot’ for being on her phone because she had only just had it returned to her. This occurred while the complainant was in her bedroom and the accused was standing in the doorway of the bedroom.79 352 The defence case is that the complainant lied about the kissing incident because the accused had become angry with her and spoken to her severely on the same night over her failure to change IR’s nappy. 353 The accused did keep V energy drinks at his house and on more than one occasion he went with the complainant to his house to pick up some V energy drinks. The accused gave evidence that on none of those occasions did he show the complainant pornography on his phone or touch her on her breasts or her vagina.80 Analysis Assessment of Witnesses Brendan Seminara - The Accused 354 The accused was an unimpressive witness. 355 His evidence, in particular about his relationship with the complainant, was evasive and in some instances contradictory. 78 T256.31-35. 79 T253.T254. 80 T260.8-19. -- 44 of 56 -- [2024] SADC 45 43 356 An example of this is his explanation about the messages between himself and TR on 12 March 2019 including the intended meaning of the two emojis and TR’s understanding that it represented a sexual reference meaning ‘finger in hole’. 357 The accused’s explanation about these messages is nonsensical. The accused denied that he intended anything sexual by the emojis in his original message to TR. However, he said he realised from her response that she understood the emojis to be a sexual reference and so he responded ‘lol’, meaning laughter. Despite his appreciation that TR understood his message to be a sexual reference, the accused claimed he understood her subsequent message, ‘I coming’ to be a reference to her ‘coming to his place’. The accused then said he appreciated that the message “I coming’ was connected to her misunderstanding that his message had a sexual reference. However, the accused continued to maintain that his response of “I bet you are lololol’ was a nonsexual reference and he believed TR was coming to his place later with LR. The accused’s evidence was contradictory. I do not accept his evidence that his response ‘I bet you are’ was not a reference to the sexual meaning of that phrase. 358 Other aspects of the accused’s evidence about the text messages between him and TR were also implausible. 359 I formed the firm view that the accused was attempting to mislead the court about the degree of familiarity between himself and TR, and in particular about him engaging in communications involving sexual reference beyond the mere use of profane language. 360 I am not prepared to accept the accused as a witness of truth. TR - The Complainant 361 TR, the complainant, gave evidence over an extended period including a substantial period of cross-examination. Her evidence covered a wide range of topics and incidents which occurred over a period of several years. 362 TR remained composed and calm during her evidence including under cross- examination. She remained firm in her rejection of some of the propositions put to her by defence counsel but did not become histrionic or otherwise react inappropriately. TR did not demonstrate any overt hostility or anger towards the accused. Her evidence was delivered in a matter-of-fact manner. 363 I have considered that at the time of the alleged conduct constituting the offence TR was only about 13 to 14 years of age and that she was just 17 years of age when she gave evidence. I have also considered the sensitive nature of the topics upon which she gave evidence and was cross-examined including the nature of the alleged sexual contact, her use of illicit drugs and alcohol, her access to pornography, her difficult relationship with her mother and family circumstances generally and the nature and character of her relationship with the accused, her ‘de facto’ uncle. -- 45 of 56 -- [2024] SADC 45 44 364 TR exhibited a reluctance to discuss in her evidence conduct on her part, or in which she was allegedly involved at the behest of the accused, which may have suggested that she acquiesced or was compliant with his sexually-oriented messaging and other inappropriate behaviour. As an example, TR in her evidence did not recognise or acknowledge that she had sent the text messages including sexually suggestive messages comprising Exhibit P2 to the accused despite overwhelming evidence that she was the author and recipient of such text messages with the accused. 365 Her reluctance to address aspects of the allegations which might be thought by her to be embarrassing in the sense described, is to a significant degree understandable. 366 I have given consideration to her age and the sensitive and embarrassing subject matter of her evidence when assessing her evidence. In my view the infirmities in the evidence of TR cannot be completely explained by these considerations. 367 The fact that TR withheld some information and was not completely frank about some aspects of her conduct adversely affected my assessment of her credibility. 368 There are other issues which raise concerns about the complainant’s credibility and reliability which are addressed below. The complainant’s evidence relating to the first alleged incident – Count 1 369 The complainant’s evidence about the first alleged act of unlawful sexual conduct was very brief and lacked detail about the conduct itself and surrounding events, including when it occurred. 370 The complainant initially described the events immediately prior to the alleged incident. She said others present had been drinking at her mother’s home when it was decided that the accused pick up some food. She later said that she could not recall if she had been drinking.81 371 There was no further information that could be used to determine when the alleged incident occurred. 372 The alleged touching on the vagina and breasts was not detailed in evidence. The complainant said that it happened while she and the accused were parked on Beaumont Road adjacent to the site of the former Smithfield Plains High School. 373 It was established under cross-examination that the complainant had not mentioned Beaumont Road as the location of the alleged incident until one week prior to trial when she was shown a street map of the location including street 81 T165.36-38. -- 46 of 56 -- [2024] SADC 45 45 names. The complainant could not recall if she was shown a street map of the location when she gave her first statement to the police. 374 Under cross-examination the complainant conceded that when she gave her first statement on 30 March 2021, she told the police that the accused had removed the seatbelt when they were both in the car immediately before the alleged touching. This was inconsistent with her evidence that she herself had taken off the seatbelt in the car. The complainant said in evidence that she was now not sure which of those two accounts is correct.82 375 I do not consider that these issues of themselves are significant in determining the credibility and reliability of the complainant. 376 In my view it is unrealistic to expect that the complainant would be able to recall with any specificity the timing of an event that occurred some years earlier when she was a child. On the complainant’s account and also on the accused’s, there were multiple occasions when the accused was at the complainant’s mother’s home and from there drove to the McDonald’s store with the complainant to purchase food and return to the home of the complainant’s mother. It could be reasonably expected that a child may not be able to identify with any particularity the timing of an occasion when the alleged incident occurred. 377 I consider it unsurprising that the complainant was not able to give detailed evidence about the actual alleged indecent touching. Furthermore, the complainant was not asked to describe the touching in any detail. 378 The omission by the complainant of the name of the street where the first incident was alleged to have occurred does not in my view undermine the credibility or reliability of the complainant. I do not consider it realistic to expect that a child of about 13 years to recall years later the name of a street near to where she lived. There would simply be no reason for her to recall the street name even if she passed by that street regularly. It would be just another street in the neighbourhood simply identified by the fact that it was the location of a school that had been closed. 379 The credibility and reliability of the complainant is not undermined because she required a street map to assist her to nominate the street name where the school site was located and where the alleged incident occurred. 380 I find it unsurprising that the complainant would now not recall whether she or the accused removed the seatbelt immediately prior to the alleged touching incident. It is a relatively minor detail about an incident that occurred several years earlier. 82 T143.6-12. -- 47 of 56 -- [2024] SADC 45 46 The complainant’s evidence relating to the second alleged incident 381 The second alleged incident involving unlawful sexual acts by the accused, namely touching on the breasts and vagina, kissing involving using his tongue and showing the complainant a pornographic video on his telephone, occurred in circumstances where there was a risk of detection by the accused’s children who were in the house at the time of the incident. The risk was mitigated because it was in the evening and the children were apparently in their bedrooms from where, on the evidence, it is reasonable to expect the incident could not have been seen. The circumstances still leave open the risk that the children, or one of them, may have left the bedroom and witnessed the incident. 382 The risk of detection gives rise to some unquantifiable concern about the likelihood that the accused engaged in the conduct alleged in those circumstances. 383 It might be considered troubling that the complainant went with the accused alone in his car to pick up energy drinks after being indecently touched by the accused in his car on the way to the McDonald’s store. The complainant’s explanation for going with the accused was that she did not think that it would happen again because she believed that the accused did not find the touching satisfactory because of her response. The complainant’s willingness to travel alone with the accused in his car despite the earlier incident should be understood in the context of the relationship between the accused and the complainant and the degree of familiarity and association between the family at that time. On the other hand, there was a paucity of evidence on the prosecution case about the complainant’s feelings towards the accused and her attitude towards his conduct following the first alleged incident which makes it more difficult to assess her explanation. 384 Weighing up these considerations, I do not consider that the fact the complainant went with the accused on this occasion despite his earlier alleged conduct undermines the complainant’s credibility to any substantial degree. At that time, the accused and MN were a significant part of the complainant and her family’s lives. There was daily contact as part of the school routine and extensive social contact. The accused paid the complainant much attention. It is not altogether surprising that she maintained a connection to the accused despite his alleged conduct. It is also to be noted that at that stage she had not indicated that the alleged conduct was disturbing or troubling although it may have been confusing. 385 The complainant said in evidence that she did not really look at the pornographic video which the accused was allegedly showing her. It is surprising in that case that she was able to identify and recall the website address xnxx.com some years later. The veracity and reliability of the complainant’s evidence that she recalled the website address from her observation when the alleged second incident is questionable for other reasons. There was evidence that the same website address appears in a message sent to her on her Facebook account. The complainant also gave evidence that she accessed pornography on the same website when she was in Year 9 which is before she made the complaint to the -- 48 of 56 -- [2024] SADC 45 47 police. I consider that the combined effect of that evidence leaves open as a reasonable possibility that the complainant learnt of the website other than at the time of the alleged second incident and incorporated that website into her account of the incident falsely or through innocent reconstruction. 386 The complainant says that on the same evening, shortly after the second alleged incident, she told her mother that the accused had tried to ‘pash’ her. On her account the accused and his partner MN were at the complainant’s home at the time the complaint was made to the mother. On the complainant’s version MN heard the argument and made a comment which is strongly indicative that she knew that the complainant had made an allegation against the accused, her partner. 387 On the accused’s version, the complaint by TR that he had tried to ‘pash’ her was made after he had been alone with the complainant and her siblings at their mother’s home while his partner and the complainant’s mother were out. He had yelled at TR because she had not complied with his requests to change her sister’s soiled nappy. On the accused’s version, he and the complainant did not go to his house to pick up energy drinks on the night of the kissing complaint. 388 The accused said that he was informed about TR’s complaint that he had tried to ‘pash’ her about a minute83 after leaving KN’s home on the same night that he had yelled at TR about not changing the nappy. He said he was very upset and ‘mortified’.84 The accused said he reported the conversation to MN who was in the car with him. 389 The suggestion is that the complaint about the kiss was falsely made by TR in ‘retaliation’ to him yelling at her. 390 On the accused’s account, KN and MN were not present in the shed on the night of the complaint about a kiss, he and TR had not gone to his house to pick up energy drinks and there had been no kissing or other unlawful sexual acts between him and the complainant that night. 391 If it is accepted as a reasonable possibility that the complaint by TR to her mother that the accused tried to kiss her occurred in the way in which the accused suggests, it follows that the evidence of TR concerning the alleged incident on the veranda at the accused premises should be doubted. 392 The accused and MN were not cross-examined about whether they were present when the complaint was made by TR or about this issue generally. 393 TR was not sure if there were occasions when the accused and MN would be at the house with her and the other children when TR’s mother was not there.85 It 83 T256.25. 84 T257.10. 85 T117.22-25. -- 49 of 56 -- [2024] SADC 45 48 was the usual case that TR’s mother would be there whenever MN and the accused came to her house. 394 In her evidence, TR said she did not recall an occasion when the accused told her to change her sister’s nappy and an argument followed when she failed to do so and went inside the house.86 TR denied that it sounded like something that might have happened. TR was not sure whether the accused then came inside the house and told her that she needed to change her sister’s nappy. She then agreed that it sounded like the sort of thing that might have happened. 395 She said that she did not remember an occasion when the accused came to her room and yelled at her to get off her phone and change the nappy. She said that that was not something that might have happened.87 She said she did not remember that occurring on the same day that she told her mother about being kissed by the accused.88 396 The complainant’s brother, DR, was cross-examined about this issue. DR recalled there was an argument between his sister and the accused about her not changing the child’s nappy. He said it occurred at his mother’s house. He agreed that before the argument he was with the accused and TR in the shed. He said that the accused asked TR to change the nappy and that she did not do so. DR agreed that the accused became cross with TR and that he was present when that occurred. The argument occurred inside the house after TR had gone there from the shed at some stage. He agreed that the accused yelled at TR about not changing the nappy while TR was in her bedroom. DR said the accused was standing in the door to TR’s bedroom and he heard him yelling at TR about not changing the nappy.89 397 DR told the court that his mother and MN were not at the house when the accused was yelling at TR. He said that his mother and MN came home at some stage. He said that on the same night his mother and TR had a fight. DR was ‘not really sure’ what the fight was about.90 398 The evidence of the complainant about the soiled nappy and yelling incident involving the accused was unconvincing. There was much equivocation in the complainant’s answers to questions on this issue. The complainant initially said she could not recall an occasion when the accused told her to change her sister’s nappy and she refused and went inside the house. She said that it did not sound like something that might have happened.91 399 TR then said she was not sure if the accused came inside the house and told her that she needed to change her sister’s nappy. She agreed that it sounded like the sort of thing that might have happened. However, she maintained that she could 86 T117.11-15. 87 T118.7-13. 88 T117-T118. 89 T173.30-34. 90 T174.12-14. 91 T117.29-34. -- 50 of 56 -- [2024] SADC 45 49 not remember the accused yelling at her about this or whether that sounded like something that might have happened. 400 The evidence of the complainant’s brother, DR was quite clear that such an incident had occurred and did so on the same night that the complainant had a fight with her mother. However, DR could not recall what the fight between his sister and mother was about. 401 The evidence of DR is consistent with material aspects of the accused’s account of an argument between him and the complainant which he says coincided with the complainant’s report to her mother that the accused kissed her. 402 I am reluctant to accept the complainant’s evidence about the circumstances of the claimed kissing complaint because of her equivocation and the inconsistency of the evidence with other evidence, particularly that of her brother. 403 That conclusion significantly undermines the complainant’s evidence about the incident of unlawful sexual conduct by the accused on the veranda at his home on the night of the kissing complaint. The complainant’s evidence relating to the third alleged incident 404 There is no direct evidence on the prosecution case explaining why the complainant went with the accused to his home after the first and second alleged incidents of unlawful sexual conduct by the accused and the kissing complaint. 405 The explanation may be found in indirect evidence relevant to this issue. There was a close familial relationship between the accused and the complainant involving regular and frequent contact. The evidence shows that the complainant, as a matter of routine, attended the accused’s home and walked M to school. On the occasion of the third alleged incident, the complainant said she was told by her mother to accompany the accused to assist him to care for MN who was intoxicated. The complainant may have been reluctant to refuse so as to avoid disclosing the accused’s conduct. On the complainant’s account, she had been disbelieved by her mother about the allegation of kissing. Her evidence was she did not disclose the alleged touching and exposure to pornography because she was not believed about the kissing. 406 I do not consider that the absence of direct evidence by the complainant about why she attended the premises despite the accused’s previous alleged conduct adversely affects the credibility or reliability of her evidence. 407 The third alleged incident was committed in circumstances where there was in my view a serious risk of detection. There was some dispute and a conflict in the evidence about where the couch was situated in the lounge room. However, I am satisfied that the risk of detection was significant irrespective of the actual position of the couch. The living areas of the house were open plan in design. The toilet was close to the lounge room. There was no door or screen between the -- 51 of 56 -- [2024] SADC 45 50 hallway leading from the bedrooms to the lounge room and it was possible to see into the lounge from the hallway and as one proceeded further into the open space area. There were three other people in the house at the time of the alleged incident and the accused could not have known if any of those individuals would come into the lounge room area to use the toilet facilities or the kitchen. 408 There is an inherent unlikelihood that the accused would have engaged in such brazen behaviour and risk detection. I note too that the accused could have engaged in the alleged conduct elsewhere on the night without the same risk of detection. The shed was no doubt available, as was the car, which was used on the complainant’s version to drive to the Woolworths store. 409 There was a notable lack of detail in the complainant’s account of events leading up to the alleged acts of cunnilingus. The complainant said that she did not remember ‘how it led up’.92 She remembered being asked if she wanted phone data or chocolate and McDonald’s and if she allowed the accused to ‘do something’ he would be able to get those things for her.93 She said she was shocked when the offer was made. She said she knew what he was proposing later right before ‘it happened’.94 The complainant then described how she laid back on the couch, pulled down her pants along with her undies and the accused put his face against her vagina and started licking it. 410 The complainant was not asked and there was no evidence about the words used by the accused when he told her what he was proposing to do to her. 411 The evidence moved from an unspecified offer, to the complainant laying on her back removing her pants and undies and the accused putting his face against her vagina and licking it. The complainant was not asked and there was no evidence about whether she responded to the accused’s offer or whether he asked her or instructed her about removing her clothing. The complainant was not asked and there was no evidence about where on the vagina the accused was licking or any other detail about his conduct. 412 The evidence lacked sufficient detail to properly assess its cogency. 413 Similarly, the evidence about the accused engaging in the act of cunnilingus when they returned from Woolworths and McDonald’s lacked detail. The complainant said that she was shocked when he suggested that he do it again. It is difficult to understand why she may have been shocked given what had occurred only a short time earlier. 414 Under cross-examination it was established that there was an inconsistency between the complainant’s statement to the police dated 30 March 2021 and in her evidence. TR refreshed her memory from her statement and agreed that she had 92 T71.8-9. 93 T71.9-12. 94 T71.18-23. -- 52 of 56 -- [2024] SADC 45 51 told the police that the accused had pulled her pants down on both occasions on the night that he performed cunnilingus on her. In her evidence she told the court that she herself had pulled her pants and underpants down on both occasions. The complainant said in evidence that she cannot say which is correct.95 415 I found the complainant’s evidence about this incident to be unsatisfactory and uncompelling. I consider the inherent implausibility that the accused would engage in such conduct involving a significant risk of detection compounds the infirmities of the complainant’s evidence. The complainant’s evidence relating to the fourth alleged incident 416 Under cross-examination the complainant said that she was not sure if she told the police that before she went into the accused’s room, she, MN and the and the accused had been drinking and smoking in the shed. She said that she was unsure if she told the police that the accused then went to his room to fix the TV. 417 The complainant then refreshed her memory from her statement of 30 March 2021 and agreed that she had told the police that the fourth alleged incident in the accused’s bedroom occurred about one week after the third alleged incident of abuse. She also agreed that she said in her statement that it was the last occasion that she smoked methylamphetamine with the accused and MN. She agreed that she had said in her statement that it was the last time the accused touched her.96 418 In evidence TR then said she was now unsure if she was drinking and smoking methylamphetamine with the accused and MN in the shed on that occasion.97 419 She said that she was not too sure if they moved to the lounge room after leaving the shed.98 420 In her evidence she said that she did not remember the accused going to his room to fix the TV. In evidence she said that she was not sure if both MN and the accused were in the bedroom together while he was fixing the TV.99 421 After refreshing her memory from her statement dated 30 March 2021, TR agreed that she had said in that statement that the accused went into his room and started fixing his TV. In her evidence, she maintained that she could not remember the accused fixing the TV. She maintained that she was not sure whether there was an occasion when the accused was fixing his TV when MN was also in the bedroom.100 95 T157.1-12. 96 T159.28-32. 97 T159.36-38. 98 T160.1-3. 99 T158. 100 T159.23-T160.19. -- 53 of 56 -- [2024] SADC 45 52 422 The inconsistencies between the complainant’s evidence and her statements to the police about the circumstances of the bedroom incident are significant. 423 The version which the complainant accepts she gave in her police statement, and which she does not directly disavow, is inherently implausible. 424 On the account contained in the complainant’s statement, MN was directly involved in the use of methylamphetamine with the complainant. Furthermore, she and MN together with the accused were smoking methylamphetamine in the shed at the accused’s home. On the version contained in her statement TR says that they moved into the lounge and from there the accused went to the bedroom to fix the TV where the alleged fourth incident of unlawful sexual conduct occurred, and the second charged incident of supplying methylamphetamine to a child. 425 The account provided by TR in her police statement is inherently implausible. 426 It is difficult to accept that the accused on this occasion told her that if she wanted some methylamphetamine she should go to the bedroom. This would seem unnecessary given the complainant’s statement that they had all been using methylamphetamine in the shed. 427 It is difficult to accept that the accused engaged in the unlawful sexual act in the bedroom he shared with his partner who was in the house at the time. There was a significant risk that she may have come into the bedroom. There was a significant risk of detection. 428 TR’s evidence was materially inconsistent with her police statement about the background to this alleged incident. The inconsistencies were significant. In her evidence TR made no mention of the matters referred to in her police statement which rendered her account implausible. In my view the inconsistencies undermined the credibility and reliability of TR’s evidence on this topic and more generally. Counts 2 and 3 The alleged introduction of the complainant to the use of methylamphetamine 429 The complainant’s description of the methylamphetamine, the equipment used to smoke the drug, how it is ingested and its effects is consistent with either having been exposed to the drug use by the accused or obtaining that information as part of her school project. 430 Proof of the charge depends entirely on the acceptance of the evidence of the complainant. 431 In part the prosecution relies upon the evidence of the complainant of ongoing supply of the drug to her by the accused which, on the prosecution case, is said to demonstrate tendency on the part of the accused to supply methylamphetamine to the complainant. -- 54 of 56 -- [2024] SADC 45 53 432 The evidence introduced by the prosecution through the complainant of ongoing supply in my view lacked detail and cogency. 433 The evidence did not establish how the accused and the complainant were able to use methylamphetamine at the accused’s shed on most mornings that the complainant attended there to walk to school without suspicion and detection by others. There were other children present at the time, including M and LR, who might have observed something suspicious or entered the shed when the accused and complainant were there using drugs. On TR’s evidence, MN, who was, at least initially, not involved in using drugs with the complainant, may have discovered the routine use of methylamphetamine by her partner and the complainant. It is to be noted in this context that on the prosecution case, the accused was anxious to keep MN in the dark about his use of methylamphetamine with TR even after MN invited the complainant to use methylamphetamine and supplied her with the drug. 434 On the evidence available it is difficult to accept that TR used methylamphetamine before school on most occasions and attended school on most days affected by drugs without detection. 435 I find the complainant’s evidence about the pattern and frequency of supply of methylamphetamine by the accused to her and their corresponding joint use of the drug unsatisfactory. 436 In my view the infirmities in the complainant’s evidence about the ongoing drug use significantly undermines the complainant’s evidence about the supply and use of the drug by the accused on the first occasion comprising Count 2. 437 The complainant’s knowledge generally about where the accused stored his methylamphetamine can be rationally explained by her familiarity with the accused premises. In my view it was likely that she appreciated that the accused, MN and her mother were drug users given the regularity of the use while the children were in the vicinity. There is a real possibility that the complainant was generally aware of where the accused stored methylamphetamine in the shed at his home. The alleged supply of methylamphetamine to the complainant on the last occasion 438 The veracity of the complainant’s account of the occasion on which the accused allegedly supplied her with methylamphetamine and at the same time touched her, and caused her to touch him sexually, is undermined by the infirmities I have identified in the complainant’s evidence about supply and ongoing use of methylamphetamine. 439 The infirmities that are identified about the alleged unlawful sexual act in the bedroom apply equally to the evidence about the supply of drugs and its use on the same occasion. -- 55 of 56 -- [2024] SADC 45 54 440 I consider it problematic to accept that the accused would have directed TR to the bedroom to smoke methylamphetamine having regard to the inconsistency in TR’s account of this incident. In the account given by the complainant to the police, she and the accused had immediately beforehand been smoking the drug together in the shed. On the prosecution case, by that time MN was involved in supplying the complainant with methylamphetamine and had been in the shed on the same occasion using the drug with TR and the accused. It was hardly necessary in those circumstances for the accused to arrange a surreptitious opportunity to use the drug with the complainant on that occasion. If the motive for making such an arrangement was to engage in a sexual act with TR that would appear to be unlikely when the accused’s partner MN was in the lounge room. TR’s equivocation about the accused over the incident occurring when the accused went to the bedroom to fix the TV and MN’s possible presence in the room on that occasion also serves to undermine the complainant’s account. Conclusions 441 The weaknesses in the evidence of TR are not such that her evidence can be rejected as wholly untruthful or unreliable. In this context I note that the evidence concerning the background to the alleged offending and the relationship between the accused and the complainant, which was cultivated by the accused, including the text communications, buttresses the complainant’s evidence. It explains at least in part why the complainant continued to maintain a close association with the accused despite his alleged behaviour and why the allegations were not reported until the complainant relocated. 442 However, having regard to the weaknesses in the complainant’s evidence I have identified earlier in these reasons, I am not satisfied beyond reasonable doubt that the accused engaged in the alleged acts of unlawful sexual conduct alleged in Count 1 on the Information or that he supplied methylamphetamine to the complainant as alleged in Counts 2 and 3 on the Information. 443 Accordingly, in relation to Counts 1, 2 and 3 on the Information I find the accused not guilty. -- 56 of 56 --