[2024] SADC 53

Prosecution: R Counsel: MR R KANE - Solicitor: OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS Accused: DW Counsel: MR S ROCHE - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 25/09/2023 to 26/09/2023 File No/s: DCCRM-22-614 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 DW Criminal Trial by Judge Alone [2024] SADC 53 Reasons for the Verdict of his Honour Judge Barklay 10 May 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES The accused is charged with one count of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged the accused sexually abused his stepdaughter, SW, between the ages of around eight to 14 years old. Verdict: Guilty Criminal Law Consolidation Act 1935 (SA) ss 50(1), 50(2), 50(12); Juries Act 1927 (SA) s 7(1), referred to. Fox v Percy (2003) 214 CLR 118; Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; JJP v The Queen (2021) 139 SASR 91; Palmer v The Queen (1998) 193 CLR 1; R v P,S [2016] SASCFC 97 ; R v Sluczanowski [2008] SASC 185, applied. -- 1 of 26 -- -- 2 of 26 -- R v DW Introduction 1 The accused, DW, is charged with one count of sexual abuse of a child on an Information dated 22 September 2023. The complainant, SW, is the accused’s stepdaughter. The prosecution case is that the accused engaged in various unlawful sexual acts with the complainant, mainly at their family home, starting when the complainant was about eight years old and ending when she was about 14 years old. The alleged unlawful sexual acts include the accused kissing SW in circumstances of indecency, touching her on the vagina and breasts, and inserting or attempting to insert his finger, and later his penis, into her vagina. 2 The central issue is whether the alleged unlawful sexual acts occurred. The prosecution case relies entirely on the evidence of SW. The prosecution submission is that SW was a truthful and reliable witness and that I should accept her evidence beyond a reasonable doubt. 3 The defence case was that the complainant was not a credible or reliable witness for a number of reasons. First, the sexual offending described by SW carried with it a high risk of detection, such that the account was simply not credible. Second, the complainant may have had a motive to lie. Third, the complainant wrote letters to her father after the alleged offending, that were affectionate and loving, and inconsistent with her being a victim of sexual abuse. Fourth, the complainant failed to complain at times when you would expect she would have. 4 The accused pleaded not guilty to the charged offence and elected to be tried by judge alone pursuant to s 7(1) of the Juries Act 1927 (SA). For reasons that follow, I find the accused guilty of the offence of sexual abuse of a child. The charge 5 I set out the charge. Statement of Offence Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935) Particulars of Offence [DW] between the 1st day of January 2012 and the 11th day of April 2019, at Whyalla Stuart, maintained an unlawful sexual relationship with [SW], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: (a) inserting or attempting to insert his penis into her vagina on more than one occasion; (b) inserting or attempting to insert his finger into her vagina on more than one occasion; (c) touching her vagina on more than one occasion; (d) touching her breasts on more than once occasion; and -- 3 of 26 -- [2024] SADC 53 2 (e) kissing her on more than one occasion. Elements of the offence 6 All elements of an offence must be established beyond a reasonable doubt before there can be a verdict of guilty. The offence of sexual abuse of a child has four elements: (1) The accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred; (2) The accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship; (3) The accused was an adult during the period in which the particularised unlawful sexual acts occurred; and (4) The complainant was a child under the age of 17 years during the period in which the particularised sexual acts occurred. 7 DW was SW’s stepfather. It is not disputed that DW maintained a relationship with the complainant during the period relevant to the charge and that DW was an adult, and that SW was a child at the time of the alleged offending. I am satisfied that elements one, three and four are established beyond a reasonable doubt. 8 The main issue in contention is element two, that being, whether the prosecution has established, beyond a reasonable doubt, that DW engaged in two or more of the particularised unlawful sexual acts against SW. 9 An unlawful sexual act means any act that constitutes, or would constitute, a sexual offence listed in s 50(12) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The unlawful sexual acts alleged by the prosecution are set out at paragraph [5] under the heading ‘Particulars of Offence’.1 The prosecution are required to prove the elements of the sexual offences that arise from the unlawful sexual acts particularised.2 10 Particulars (a) and (b), if proved, would amount to the offence of unlawful sexual intercourse, or attempted unlawful sexual intercourse. Particulars (c), (d), and (e), if proved, would amount to the offence of indecent assault. 11 The offence of unlawful sexual intercourse (particulars (a) and (b)), requires the prosecution to prove that the accused had sexual intercourse with the complainant, when she was under the age of 17 years. There is no dispute that if the accused put his fingers or penis between SW’s labia majora, given her age at 1 Particulars (a) – (e). 2 JJP v The Queen (2021) 139 SASR 91 at [145] (Doyle JA). -- 4 of 26 -- [2024] SADC 53 3 the time (under 17 years), that the offence of unlawful sexual intercourse would be established. 12 The offence of indecent assault (particulars (c), (d) and (e)) requires the prosecution to prove that the accused touched the complainant, and that the touching was voluntary and deliberate, intentional, and indecent, according to contemporary community standards. Indecency requires a sexual connotation. Consent is no defence to this charge. There is no dispute that if the accused performed any of the particularised acts (c), (d) and (e), it would amount to an indecent assault. 13 Although a number of unlawful sexual acts are alleged, pursuant to s 50(2) of the CLCA, I need only be satisfied that the accused committed at least two unlawful sexual acts with or towards SW over the relevant period. Preliminary legal directions 14 The prosecution bears the onus to prove each element of the charge beyond a reasonable doubt. DW, at all times, is presumed to be innocent unless I, as the trier of fact, were to be satisfied of guilt beyond a reasonable doubt. It is not enough for the prosecution to show a mere suspicion of guilt or to demonstrate probable guilt. Anything short of proving the case beyond a reasonable doubt, and the verdict should be one of not guilty. A reasonable doubt would be one that, after full and careful consideration of all the relevant evidence, I am prepared to entertain. 15 DW elected not to give evidence in his defence. DW was not obliged to have done so. That was his right, and, as it was his right, his silence must not be used against him, nor can any inferences adverse to him be drawn from his choice not to give evidence. His silence cannot be treated as an admission, or used to fill any gaps in the prosecution’s case. I must not use DW’s silence against him, and I have not done so. 16 SW gave evidence at trial via audio-visual link. I direct myself, that I must not draw any adverse inference against DW from the special arrangements that were put in place, and I must not allow the special arrangements to influence the weight that I give to SW’s evidence. I have not done so. General background 17 The following general background evidence was not in dispute. The complainant, SW, was born on 12 April 2004 in Whyalla, and was 19 years old at the time she gave evidence at trial. SW has a younger brother, DD. DD is about two years younger than SW. When SW was about two or three years old her mother and father separated, after which SW had little to do with her biological father. 18 Not long after her parents separated, SW’s mother, SGW, commenced a relationship with the accused. Soon after that, SGW, SW and DD all moved into the accused’s house in Whyalla Stuart. Sometime after moving in with the accused, -- 5 of 26 -- [2024] SADC 53 4 SGW fell pregnant to the accused and had a child, AA. AA is approximately four and a half years younger than SW. SW lived with her family, and the accused, in Whyalla Stuart, for nearly 15 years. SW - Complainant 19 I turn to consider the evidence in support of the charge. In considering this charge, I will set out SW’s evidence in chronological order. I will refer to the other evidence relevant to an assessment of SW’s evidence, during the course of my discussion of her evidence. Where possible, I will make findings as the issues arise. In making my findings, I make clear that at all times I have considered the whole of SW’s evidence in coming to the conclusions I have about her evidence. My findings are made having regard to the whole sequence of events, and are not made in isolation. That is, I have taken into account the defence arguments both individually and collectively. I have not considered the defence arguments or any one piece of evidence in isolation. 20 SW said from a young age, she considered DW to be her father, and she would refer to him as ‘dad’. She said her relationship with DW changed when he commenced touching her sexually. Touching her vagina on the outside of her clothing 21 SW said that DW first touched her sexually in her bedroom at the family home, when she was around eight years of age (SW turned eight in April 2012). As to the first time the accused touched her, SW said: …it started [with] him putting his hands on the inside of my thighs, and then it went from the inside of my thighs to over the top of the clothing on my vagina area. 22 SW said that her brothers were home when this first incident occurred, but did not recall where they were, stating: I don’t recall exactly where they were, I just know that they were elsewhere, they were at home, but just elsewhere. 23 SW gave some evidence as to the layout of her home in Whyalla Stuart. She said that her bedroom was situated directly opposite AA’s bedroom, and next to DD’s bedroom. During examination in chief, SW gave the following evidence about her bedroom door: Q In your room in the house in Whyalla Stuart, did your bedroom have a door on it. A It did to start off with, and then it was removed. Q So, could anyone just walk into your room without notice. A Yes. -- 6 of 26 -- [2024] SADC 53 5 24 SW said her bedroom door was removed by DW due to damage. SW was cross-examined on the topic of her bedroom door being removed. I set out her evidence: Q And during the period that you allege [DW] inappropriately touched you…there was nothing else covering the doorway, was there. A Occasionally, there was a – like an old sheet, but it wasn’t always there; it always [fell] off. Q If [AA] was going to his bedroom, he’d have to pass by your room, wouldn’t he. A Yes. Q And the same for [DD]; his room was beside yours. A If he was going to his room, he didn’t have to pass my room, no. Q Sorry, yes… It should’ve been that [DD’s] room was beside your bedroom, yes. A Yep. 25 SW said her brothers never came into the room when DW was touching her inappropriately. Whilst her brothers would be ‘free roaming’ inside the house, SW said the accused would keep an ear out for the boys. She explained that the hallway had wooden flooring, which meant that you would hear people if they walked on it, and that ‘if he heard anyone coming he would stop immediately’. When asked whether this conduct by DW occurred when her mother was home, SW said ‘Not from memory, it was always when she was away’. 26 When asked about the frequency and period of time in which DW would touch SW outside her clothing on her vagina. SW said it would occur ‘a few times a week over a long period of time, I can’t exactly pinpoint’. She was unable to approximate the period of time over which that occurred. 27 In addition to the bedroom, SW said that the touching on the outside of her vagina also occurred a few times in the lounge room and outside the house. SW could not recall how long he would touch her vagina for, stating ‘…it would vary’. When asked whether DW would say anything to SW when touching her, SW stated ‘No, there was never any conversations about what was happening’. SW said that although the accused touched her, he never made her touch him. 28 When asked how she felt about what DW was doing to her, SW said ‘I felt quite uncomfortable and a bit confused, I didn’t exactly understand what was going on at the time’. She said she didn’t tell anyone about it at the time it was happening, because she was ‘scared and didn’t understand what was happening’. Touching her vagina inside her clothing 29 SW said that, over time, the touching progressed from the accused touching her vagina on the outside of her clothes, to the accused touching her on the vagina -- 7 of 26 -- [2024] SADC 53 6 underneath her clothing. She said ‘He would play with my clitoris area with his fingers, and then that led to him trying to insert his fingers later on’. As to how often he would touch her directly on her vagina SW said ‘Again, it would vary so I wouldn’t be able to say how often that would be’. 30 As to how old she was when DW started touching her underneath her clothes, SW said at one point, she thought she was ‘maybe’ 10 or 11 years old, but later said it occurred in early 2017, which would have made her 12 years old (she turned 13 in April 2017). I set out the evidence on this topic: Q …Are you able to say how old you were when [DW] started touching you underneath your clothing. A I believe it was around Year 6, I think I would have been around maybe 11 or 10 years old at that point, sorry 10 or 11 years old at that point. Q Do you recall the first time that you say [DW] touched you underneath your clothing. A …I believe it was a little bit after 2017, the start of 2017 I believe it was, I know this because I got a boyfriend [in] August 2017. I remember him [DW] coming into my room and I was just sitting on my bed as per usual, he laid down, undressed me and that’s how that part of that situation started. 31 Although not a submission made by the defence, I have considered whether SW’s uncertainty as to how old she was when the accused touched her directly on her vagina should cause me to have a concern about her evidence. Having considered the issue, I am of the view that it should not, for the following reasons. Given her age, it is understandable that she may be uncertain as to when he first touched her on the vagina. Estimating time is notoriously difficult for children, particularly when the offending is not isolated. 32 Whilst SW may be unreliable as to the timing of the direct touching of her vagina, I am satisfied she was truthful about the acts themselves. In coming to that conclusion, as I have earlier indicated, I have not considered this evidence in isolation, but have come to that view taking into account the whole of the evidence including the cumulative effect of all of the defence submissions. Fingers inside her vagina 33 According to SW, the accused progressed from touching her on the vagina, to putting his fingers inside her vagina. I set out her evidence: A It went from just the clitoris with his fingers, and then he would try and penetrate with his fingers in my vagina. Q How did that feel physically. A Quite uncomfortable, there was a lot of pressure. Q Have you subsequently sought a medical opinion in relation to that particular situation. -- 8 of 26 -- [2024] SADC 53 7 A Yes. Q In particular, have you seen a gynaecologist. A Yes. Q Have you been diagnosed with a particular condition. A Yes, it’s called MRKH. Q That is the Mayer-Rokitansky-Kuster-Hauser syndrome. A Yes. Q When were you diagnosed with that. A We started looking into it in 2019, I believe, and then I was officially diagnosed with it in 2020, I believe. Q But you certainly weren’t aware of it when, on your evidence, DW was attempting to penetrate your vagina. A No. I was born with this condition, but I wasn’t aware of it at the time. 34 Medical evidence was tendered through an affidavit of Dr Asha Short outlining SW’s Mayer-Rokitansky-Kuster-Hauser syndrome (‘MRKH’). Dr Short saw SW in March 2019 in the gynaecology unit at the Women’s and Children’s Hospital. SW had been referred to the gynaecology unit due to an absence of her first period and following the results of an ultrasound and MRI, which showed uterine/cervical/upper vaginal agenesis. After some further investigations, Dr Short diagnosed SW with MRKH. According to Dr Short, MRKH is a condition where the majority of the vagina (along with the cervix and uterus) is missing from birth and does not form. The opening to the vagina is present, but there is minimal depth. The lower vagina can range in depth from 0cm to approximately 3cm. Women do not typically present with symptoms of MRKH until they have entered puberty. Attempts at penetration prior to treatment of the condition would only allow for shallow penetration, generally leading to discomfort or pain, as the vaginal skin would be tight and unstretched. There was no dispute that SW had MRKH. I accept Dr Short’s evidence on this topic and, accordingly, I am satisfied that SW has MRKH. 35 SW described what she felt when the accused put his fingers inside her vagina. I set out her evidence: … it felt as if he [DW] was just pushing into like a wall… He didn’t get far in at all. And the more he pressed, the more pressure it created. And after a while, it did start to hurt. 36 SW said that on a few occasions she told DW it hurt. She said he did not say anything to her in response but did stop what he was doing to her. -- 9 of 26 -- [2024] SADC 53 8 37 SW said that the accused tried to penetrate her vagina ‘that often’ that she could not recall how many times it occurred. Touching her breasts 38 SW said that around the time the accused started putting his fingers in her vagina, she was starting to develop breasts and that DW began touching her breasts when he would put his fingers inside her vagina. 39 When questioned how this made her feel, SW said she felt: Uncomfortable and confused, again, because he was supposed to be my dad. And at that time, I was starting to understand that that was not okay coming from, obviously, your father figure. 40 There was no evidence led from SW as to who was in the house, if anyone, when the accused would put his fingers inside her vagina. Penile/vaginal intercourse 41 SW said in 2017 when she was approximately 12 or 13 years of age, the sexual abuse progressed to DW attempting to insert his penis into her vagina. She recalls being that age as she had commenced a relationship with her boyfriend around the same time. Although she could not recall the first time that this conduct occurred, she said it happened three times, each time in her bedroom at the family home. She did not recall anyone else being home on these occasions. 42 SW said each occasion that DW tried to put his penis inside her vagina, occurred in a similar way. I set out her evidence: Q Are you able to describe how any of those three occasions occurred. A They vaguely all occurred the same. He would come into my room, undress me, and then start. It would start just with playing my breasts and playing with my vagina, and then it would progress into him laying on top of me and then trying to insert his penis. Q When you say he tried to insert his penis into your vagina, as a result of what you now understand to be your MRKH syndrome, did that present some difficulties in that occurring. A Yes. Q At least as you understand it now. A Yes. Q In what way did that arise. A When I was born with MRKH, they’re not sure how much a vaginal canal I was born with. So in that sense, that was why he was not able to fully penetrate my vagina with his penis. -- 10 of 26 -- [2024] SADC 53 9 Q But did you feel any sensation at the entrance to your vagina. A A lot of pain and a lot of pressure. 43 She said there were a few times when she told him it was painful and ‘he would stop straight away…He would just get up, get dressed, and exit the room’. 44 The pain and pressure that SW described when the accused put his finger and penis inside of her and indeed her description of the accused being unable to fully penetrate her is supported by the medical evidence. However, I note that by the time SW complained about what had happened to her she had sought medical treatment for her MRKH and was aware of the diagnosis. The medical evidence does not carry the same weight it might have, had she been unaware that she had MRKH when she provided her account to the police and was thereafter diagnosed with MRKH. The medical evidence has limited relevance – that is, SW’s description of the difficulties the accused had in penetrating her vagina are consistent with her having MRKH. It does not provide any independent support that the unlawful sexual acts occurred. Kiss on the neck - garage 45 SW recalled that the next sexual encounter with DW was when the accused kissed her on the neck in the carport at her home leading up to Christmas of 2017, when SW would have been 13 years old. She said that DD and AA were inside the house at the time, and SGW was not home. SW gave the following evidence: …He got up to come give me a hug and he started kissing my neck and then I felt him – it felt like a bit of pressure, like he was – like a biting sensation, pressure sensation kind of thing, and then I believe it was my youngest brother had come out the back and was calling for him, so he stopped straight away… 46 A couple of weeks later, SW recalled being at her family shack in Point Lowly, and gave the following evidence: …my mum had noticed a mark on my neck and I didn’t realise what it was at the time, and I just thought it was a bruise maybe. I wasn’t entirely sure. She [SGW] was a bit confused about it and I just brushed it off. 47 SGW, when she gave evidence, said that she did not recall ever seeing a ‘hickey’ or bruise on SW’s neck, nor having a conversation with SW about such a topic. 48 During cross-examination, SW was asked about the layout of the rear yard, how access was gained to the garage, the location of CCTV cameras around the garage and the movement of her siblings in and around the rear yard and garage. SW said that from the back veranda, there was a doorway into the garage, which did not lock but had a latch to keep it closed. SW agreed that AA and DD would often be in the rear yard unsupervised, and that AA had a habit of going into the garage by himself, where DW kept his tools and car parts. -- 11 of 26 -- [2024] SADC 53 10 49 SW disagreed during cross-examination, that a surveillance camera was installed in the garage in 2017. She could not recall what year it was installed, but believed it was installed around 2018 or 2019. SGW said that in 2017, there was a CCTV camera on the front of the carport at their family home, however, she could not recall whether there was a CCTV camera inside the carport. 50 As to whether the accused would have the roller door up or down when he was in the garage, the following passage is relevant: Q When [DW] would be working in the carport he would always have the roller door open, isn’t that correct. A Majority of the time, yes. Q And the roller door pointe[d] straight out onto [omitted] Crescent, isn’t that correct. A Correct. 51 There was no evidence given as to whether the roller door was open or closed on the day of the alleged kiss on SW’s neck in the carport in the lead-up to Christmas of 2017. 52 In relation to the accused’s alleged kiss, the defence submitted I should reject SW’s evidence essentially for two reasons. 53 First, that there was a high risk of being caught in the act, particularly when considering SW’s evidence that when DW would work in the garage, he would have the roller door open most of the time, and that when her siblings were home AA had a habit of going into the garage. 54 Second, that it was inherently unlikely that the accused would kiss SW in such a way as to leave a mark on her neck and draw obvious attention to it. According to the defence a ‘hickey’ on her neck would make the likelihood of detection almost inevitable. 55 As to the risk of someone seeing the kiss, I accept that there was a risk associated with the offending. At the same time, the kiss was brief and capable of finishing quickly in the event that someone came. Which, according to SW is what happened. Whilst the roller door, according to SW, was often open, that is not to say that it was open on that day. There was some cross-examination to the effect that there was a CCTV camera in place in the shed in 2017. That was not agreed to by SW, and SGW could not recall. I presume the point of the cross-examination was to suggest that if he did kiss her, it would have been caught on camera and so he would not have done so. No submission was made about that in the defence address, and in any event, the evidence did not support that contention. Having considered the matter, I do not think the risk of someone catching them should cause me to doubt SW’s evidence and it has not done so. -- 12 of 26 -- [2024] SADC 53 11 56 I come then to the evidence relating to the bruise that SW said was on her neck, which she said SGW noticed, and raised two weeks or so after the kiss. I have considered SGW’s evidence that she had no recollection of seeing a bruise on SW’s neck. I note that SW said that, when her mother noticed the bruise on her neck, SW passed it off as nothing. In fact, SW said herself that she did not realise what the bruise was at the time. It is not clear on the evidence that the bruise on her neck was because of the kiss, but assuming that the bruise was a result of the accused kissing her on the neck, it may be that the bruise was not obviously a ‘hickey’. It may have been nothing more than a non-specific bruise on her neck that her mother asked about; she said she just thought it was a bruise and brushed it off, and the matter was not given another thought. One can easily see how a momentary discussion about a mark on a child’s body that was not obviously sinister, would quickly become a relegated memory lost for the ages. 57 It is easy to see how SW would recall the conversation, given how memorable it may have been to her, as when the bruise was pointed out to her, she thought it may have been caused by the accused kissing her, but SGW did not recall it, as to her, it was insignificant. 58 As to the inherent unlikelihood that the accused would intentionally kiss her so as to leave a mark (or risk leaving a mark) on her neck because it would likely be seen and implicate him, I note that SW’s evidence was that she did not notice the bruise on her neck until her mother brought the bruise to her attention a couple of weeks later. It was only then that SW considered the bruise may have been caused by the kiss. It may be that the bruise was unrelated to the kiss. 59 Assuming though, that the bruise was caused by the kiss, it is not clear on the evidence that the accused intended to kiss her in a way that would leave a mark, or even that he thought it would. It may have been an unexpected consequence of the kissing. 60 Having considered the defence submission, given the uncertainty surrounding the evidence, it has not, on its own or in combination with the other defence criticisms, caused me to doubt SW’s credibility or reliability. The Levee Banks – sexual touching in the accused’s car 61 SW described an occasion when she went for a drive to a rural area just outside of Whyalla called the Levee Banks, where the accused touched her vagina while she was inside the car. SW said it was a summer night, and SGW, AA, and DD were all in the lounge room when DW asked SW if she wanted to go for a drive, and she said yes and so they did. DW asked if SW wanted to do a ‘beachy’ (a drive along the beach at Whyalla) or go to the ‘bush’, and SW said she would like to go to the bush. SW described the Levee Banks as a bushed area situated behind Stuart High School in Whyalla. As to what occurred when SW got to the Levee Banks, SW said: -- 13 of 26 -- [2024] SADC 53 12 …We’d gone out behind there and were driving around for a bit and then we had stopped and when he stopped, I was sitting in the front because he told me that I was allowed to sit in the front. He said ‘Come over here’… it was a three-person front seat, so it had two passenger seats and then the driver’s seat. So I had scooted over and that was when he again tried to touch my vagina over my clothing and then it progressed to under my clothing. I had told him it hurts because he was pushing quite hard and I moved away and then he had approached me again and tried to do it again and I said ‘Stop, it hurts’. Then I believe he got a message – I’m not entirely sure from who – but he stopped, put his seatbelt on and that was the end of that. 62 During cross-examination, SW was questioned about AA’s relationship with DW. SW confirmed that AA had a particularly close relationship with DW and that most of the time, AA would follow DW around like a shadow, agreeing that when AA was younger, he would refuse to leave the house unless DW was with him, but as he got older it was not as often. SW disagreed that AA would go four- wheel driving with DW on every occasion. 63 Further, during cross-examination, SW was asked about DW’s four-wheel driving behaviour. SW said that when DW went four-wheel driving, he and another person would be there. However, she disagreed he would go ‘in pairs’ with another vehicle. SW agreed that the majority of the time, it was a family event and that, on various occasions, all the family participated. SW agreed that sometimes, it was DW, herself, and her brothers who went four-wheel driving with DW. 64 In relation to the incident SW said occurred at the Levee Banks, the following cross-examination passage is relevant: Q You also described in your police statement that after this occurred, so after the alleged inappropriate touching occurred, that your mother had to come and provide assistance, isn’t that correct. A Yes. … Q In any event you didn’t mention that your mother came and provided assistance in your evidence today. A No I did not mention that. 65 SGW did not recall being asked to, or attending, the Levee Banks in 2017 to provide assistance to DW, whose car had broken down. 66 The defence submitted that I should reject SW’s evidence about the Levee Banks incident for a number of reasons. First, it was implausible that SW would put herself in that vulnerable position with DW, in an isolated remote area, if the prior alleged offending had occurred. Second, she would not have ‘scooted’ over to him in the car when he called her to sit next to him. Finally, because SGW could not recall collecting SW and DW from the Levee Banks, I should have a doubt about them being there at all. Given the rural location of the Levee Banks, and the -- 14 of 26 -- [2024] SADC 53 13 difficulty in trying to find a vehicle in that location, at night, SGW could not have forgotten about that if it had happened. 67 I do not accept that SW agreeing to go on a drive to the bush with her stepfather is inconsistent with the offending she describes. In my view, it is understandable how SW may wish to do something fun with her stepfather, like going for a drive in the bush, notwithstanding his sexual abuse of her. By that time, SW had become assimilated into the abuse. What the accused was doing may have been unwelcome, but at the same time SW loved the accused and wanted to spend time with him. In my view, her evidence that she agreed to go somewhere alone with the accused is not inconsistent with the accused having sexually abused her in the way she describes. It has not caused me to doubt her credibility or reliability. Further, her evidence that she moved towards the accused when he called her is equally not inherently implausible, particularly when, according to SW, there had been ongoing abuse, which she had become accustomed to acquiescing to. 68 SGW’s inability to recall collecting SW and DW from the Levee Banks in 2017 is explicable on the basis that it was not an important or particularly memorable event. In any event, her response ‘Not that I can recall, no’ was less than concrete. She did not, for example, say that she had never collected him from the Levee Banks. SGW’s evidence did not cause me to doubt SW’s evidence about what she said occurred at the Levee Banks in 2017. 69 Although SW did not articulate the last time anything happened to her, she said the sexual abuse stopped about halfway through 2018. She was 14 years old by that time. Letters from SW to DW 70 During cross-examination, letters sent from SW to DW in April, July, and December 2019, along with some undated cards were tendered. SW confirmed these letters and cards were from her. I set out the following relevant evidence: Q …On the very first letter dated 24 December 2019, at the bottom it says, ‘Love from [SW]’. A Yes. Q …that’s you displaying affection for… [DW], despite these horrific allegations that you’ve made against him. A Yes. Q Over the page, we can see that it says, ‘[It] does not matter what happens between you and mum, you’ll always be my… daddy’…. A Yes. Q …On the letter dated 28 July 2019, final paragraph it says, ‘Please come home soon. I don’t know how much more of this feeling I can take. When you left, you took a -- 15 of 26 -- [2024] SADC 53 14 piece of my heart with you. I don’t intend on giving it back but it makes me miss you even more. Love you more than words can describe’. A Yes. … Q …To the letter dated 19 April 2019. Final paragraph, ‘I love you so much daddy and I hope you come home soon because I need you. I mean, we all do, but I really wish you were home’. A Yes. Q And then if we skip to the report, or the document that has the report card on it, we see that you – we see set out, ‘I love you so much, dad, and I cannot wait for the day you come home’. A Yes. Q … second-last, a happy birthday card, ‘I love you so much and even though I cannot be there with you, I hope you’re having an amazing birthday. Love [SW]’. A Yes. Q And then finally, Father’s Day card, ‘I hope you have an amazing day. I love you so, so much and miss you even more. Happy Father’s Day’, and heart drawing, ‘[SW]’. A Yes. 71 In re-examination, SW was asked why she wrote those letters to DW. She gave the following evidence: Because at the time, I had forgotten everything that he’d ever done to me and I just wanted it to go back to before everything ever happened. I just wanted my dad back because at the end of the day, he was the one who raised me. He got me out of a pretty shitty situation with my biological father and he didn’t have to take me on [as] his own, but he did, and he g[a]ve me his last name, he gave my brother his last name, and took us back as his own kids. So at the end of it, I just wanted my dad back. 72 The defence submitted that the letters and cards sent by SW to the accused were inconsistent with the accused having sexually abused her in the way she says he did. The prosecution points to her explanation for why she wrote the letters as the answer to the defence submission. 73 I agree with the prosecution submission. Her evidence as to why she wrote the letters was given in a spontaneous, convincing manner. Her explanation for sending the letters and cards was logical and compelling. It was plain by what she said that, despite what happened to her, she wanted to forget the past and she was prepared to forgive him. Her demeanour when she answered the question added to her evidence. She was otherwise a composed, understated witness, but this topic provoked a natural, raw emotion as she gave her evidence. Her presentation underlined the forceful and persuasive nature of that evidence. -- 16 of 26 -- [2024] SADC 53 15 74 Although I formed a favourable view of her evidence based, in part, on her demeanour, a witness’s demeanour is an inherently imprecise means by which to evaluate a witness’s evidence. I bear in mind ‘the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses’.3 I placed limited weight on my positive impression of SW’s presentation when she gave her evidence both on the topic of the letters and, more generally, when assessing the whole of her evidence. Opportunity/risk of detection 75 An issue at trial was said by the defence to be the limited opportunity for the accused to offend against SW in the family home, given that her mother was often there. 76 The following evidence is relevant. During cross-examination, SW said that when in primary school, school finished at 3:10 pm, and when in high school, school finished at 3:20 pm. Whilst SW was at high school, she would not get home until after 3:45 pm, or after 4.00 pm if they did a ‘beachy’ after school. When she arrived home, she would complete her homework, either in the kitchen (when she was younger), or in her bedroom (as she got older). SW agreed that if DW was the person who collected her and her siblings from school, he would also prepare dinner, which was served between 5:30 pm and 6:00 pm. SW agreed that SGW was not working in 2012 and didn’t start working until 2015. Therefore between 2012 and 2015, SGW, would have been home when SW and DD arrived home from school. 77 SGW confirmed that DW worked shift work during their relationship, and she began casual work in 2015. She said if she and DW were working, then her parents would collect the children from school, or if DW was not working and she was, he would collect them. 78 During cross-examination, SGW was questioned about her working hours. SGW confirmed that in 2015 she started working as a casual worker, working part- time hours, excluding approximately a five-week period in that year. When asked whether there was only one day per week when she would work until 5:00 pm, SGW said the time she finished work would vary. However, generally, her day would end between 12:00 pm and 3:00 pm. 79 SGW confirmed she continued working part-time until the end of June 2016, before changing jobs, and returning to her previous employer in 2017. SGW agreed that the nature of that work was part-time and agreed that the latest she worked was 5:00 pm, one day a week. 3 Fox v Percy (2003) 214 CLR 118 at [30] - [31] (Gleeson CJ, Gummow J and Kirby J); see also Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at [11] - [27]. -- 17 of 26 -- [2024] SADC 53 16 80 SGW agreed that when DW picked the children up from school, he would sometimes prepare dinner. SGW further agreed dinner would roughly be between 5:30 pm and 6:30 pm. 81 The defence submitted that because SGW was often home before the accused would get home with the children, the opportunity for DW to sexually abuse SW was narrowed. The defence accepted that it might not take long for DW to touch SW’s vagina. However, the defence pointed to what was said to be the extremely narrow window of opportunity and the high risk of being caught if he did. The prosecution submission was that whether the window of opportunity to offend was reduced did not really matter. There was no real dispute that the accused had access to SW and that there were times when he was alone in the house with her without SGW being home. In short, there was the opportunity to offend. 82 I am not persuaded that SGW’s regular presence in the home should cause me to doubt SW’s evidence. First, SW’s evidence was that when the accused would offend against her, her mother was not at home and there seems to be no real dispute that there were occasions when the accused was home alone with SW. Second, even if she was home for some of the offending the speed with which much of the offending could have occurred means that even if SGW were home the offending could have occurred undetected. Third, the evidence is not clear as to when the offending specifically occurred, whether after school and before dinner or some other time, which reduces the relevance of the school routine and whether or not SGW was home when the accused got home from school. Fourth, I do not accept the defence submission that there was an extremely limited window of opportunity for the accused to offend against SW. 83 Apart from what was said to be the limited opportunity to offend, the defence submitted that much of the offending in the house or in the shed was so brazen that detection was inevitable. The fact that no one ever saw anything should lead me to have a doubt about SW’s evidence. The defence reiterated the map of the house, which indicated the close proximity of AA and DD’s bedroom to SW’s bedroom. It was submitted that for some of the time when the offending was said to have occurred, SW did not have a bedroom door. There was only a sheet or something similar which would occasionally cover SW’s bedroom doorway and obviously could not be locked, nor could it stop any noise. SW, in her evidence, said that DW was the one to remove the door to her bedroom, as it was damaged from SW slamming it. 84 The defence submission was that the fact that DW removed the door, and did not replace it, was conduct consistent with his innocence; if he was offending against SW regularly in her bedroom the last thing he would want was for anyone to be able to see straight into the room, or need only to pull a bed-sheet to one side to see what he was doing. He would have replaced the door. 85 In my view, whilst having a door in place may have offered more privacy, the removal of the door and the failure to replace it does not in of itself or in -- 18 of 26 -- [2024] SADC 53 17 combination with the other evidence make SW’s evidence inherently implausible. It is conceivable that the door being open offered a greater awareness of where SW’s siblings were at any given time. I also note that much of the offending would not have taken much time to commit and that the accused need only to have removed his hand if he heard someone coming. The acts of penile vaginal intercourse are alleged to have occurred when no one was home making the lack of any door less relevant. It is not clear on the evidence if anyone was home when the digital penetration is alleged to have occurred. 86 I accept that the offending was brazen, and there was an obvious risk of detection. However, her brothers were young, and it is understandable that the accused would have a sense of when he would be able to touch SW undetected. I note SW’s evidence that there were floorboards in the house, so he could hear if the boys were coming, and that when he was touching SW, and could hear the boys coming, he would stop. At least for some of the touching, it was over SW’s clothes, and in those circumstances, it is easy to accept how that could occur, undetected, with others in close proximity to what was occurring. As I have already said, the penile vaginal intercourse occurred when no one was home. Having considered this issue I am not persuaded that the risk of detection makes SW’s account inherently unlikely. 87 I make it clear that I have not considered this evidence in isolation but have considered it in the context of all of the evidence and taking into account the totality of the defence criticisms of SW’s evidence. Motive 88 SW gave evidence that in 2020, she and her mother moved away from Whyalla for a fresh start. It was put to SW that she wanted money to help her ‘fresh start’, so she fabricated her account about the accused in order to become eligible for a victim of crime payout. SW denied this suggestion. 89 The defence submission was that SW’s evidence that she had moved away in 2020 for a fresh start laid the evidentiary foundation for the submission that SW had a motive to fabricate her account. 90 Before considering the defence submission I direct myself as to the approach to be taken to this type of evidence. Where a witness may have a motive to lie, that is a matter that may be highly relevant to an assessment of that witness’s credibility. 4 However, a complainant’s account gains no legitimate credibility from the absence of evidence of motive. The general principles surrounding this area of the law were collected by Justice Duggan in R v Sluczanowski.5 I have taken those 4 Palmer v The Queen (1998) 193 CLR 1 at [6] - [8] (Brennan CJ, Gaudron and Gummow JJ). 5 [2008] SASC 185 at [38] - [43] (Duggan J). -- 19 of 26 -- [2024] SADC 53 18 principles into account. I direct myself in the terms endorsed by the Court in R v P, S,6 at [95] (Nicholson and Lovell JJ, with Parker J agreeing): A motive to lie is relevant to the credibility of the complainant. However, even if you reject the alleged motive for the complainant to lie, that does not mean that you would find that the complainant is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason. Crucially it is not for the accused to provide a motive for the complainant to lie. At all times, the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy you beyond reasonable doubt that the complainant was telling the truth. 91 I return to consider the defence argument on motive. Accepting the defence argument would mean that, even though the accused had never done anything to her, and she loved him as reflected in the letters tendered by the defence, in order to make life financially easier, she fabricated a detailed account about the accused sexually abusing her. The so-called motive does not bear scrutiny. Having considered this submission, I reject the submission as implausible. In considering the evidence of motive, and rejecting the defence submission as to motive, I have not used the rejection of that argument to enhance SW’s credibility. The absence of evidence of motive does not in any way strengthen SW’s evidence and in turn the prosecution case, or make SW’s evidence more likely. Lies can be told for no apparent reason. I remind myself that it is not for the defence to prove a motive for SW to lie. At all times, the prosecution bears the onus of proof beyond a reasonable doubt. In light of my rejection of the defence argument about motive, the evidence is entirely neutral. Complaint evidence 92 SW gave evidence that she complained to her mother about what she said the accused did to her in 2020. SW said SGW had picked her up, they had gone to McDonalds for dinner, and after that, they went to do a ‘beachy’. While driving along the beach, SW said she complained to her mother about what the accused had been doing to her. I set out her evidence: A …I said to her ‘Can I please tell you something and you not get angry at me?’ and she said ‘I’d never get angry at you for anything’ and then that is when I had said to her that dad had touched me inappropriately. Q. Did you later go to the police and report the matter. A. The next day. HIS HONOUR Q [SW], were they the words that you used when you spoke to your mother and told her what your dad was doing to you. A. No. 6 R v P, S [2016] SASCFC 97 at [95] (Nicholson and Lovell JJ, with Parker J agreeing). -- 20 of 26 -- [2024] SADC 53 19 Q What words did you use. A. I said to her that - he was [the] defendant [accused] of doing stuff to another girl. 93 SW’s evidence was stopped at that point after a request from the prosecutor. When the evidence resumed SW gave the following evidence: Q [SW], you'll recall that both his Honour and I asked you questions about the words that you used to tell your mum about [DW] asking you. A. Yes. Q And you told his Honour - you told - when I asked you some questions, you said words to the effect of, 'I told my mother that [DW] had touched me inappropriately', and then his Honour asked you a question saying, 'Were they the actual words you used', and you said no. A. Yes. Q So I don't want to hear about the context, but if you can, are you able to assist the court with the words that you actually used to your mum about what you say, for the first time, [DW] had been doing to you. What did you say to your mum, in your own words. A I said to her, 'I don't know if the other allegations were entirely true but he did it to me'. HIS HONOUR Q And did you tell your mother what he did to you. A. Yes, not in full detail. All she had asked is if he had tried to insert his penis in me, and I said, 'Yes, but he never was able to actually do it', and she said okay, and then we had a bit of a cry together, we went home, she said, 'Wipe your tears, go inside' where my brothers were to give them the dinner, she went to my nan's house to obviously speak to my nan about the whole situation and I had called my aunty, which is my mum's sister, and spoke to her 'cos I was very overwhelmed in that situation, and then mum had come home and said, 'We're going to the police station tomorrow'. 94 SGW gave evidence that SW complained to her about DW in 2020 when they collected dinner and had done a ‘beachy’. SGW recalls this occurred between 6:30 pm and 7:00 pm. SGW gave the following evidence on what was said: A Her correct words were ‘Mum, I need to tell you something, but I don’t want you to be angry at me’. And I replied with ‘You can tell me whatever you like, I’d never be angry at you’, which I wouldn’t. And then she come out with me and said to me ‘I don’t know [how] to say this, but exactly what [DW] had [done] to [H] he’d been. Q I'll stop you there. A No, that's fine. -- 21 of 26 -- [2024] SADC 53 20 Q Please. Did your daughter say anything to you regarding anything that had happened to her. A Not at that present time, no. Q Did she say that at another time. A Yes, she did. Q When. A Still that night, but once I'd been home - gone to speak to my parents, and then I'd come home. Q Did she say anything to you. A She only answered the question that I asked her. Q What did you ask her. A That question was what I asked her was 'Did [DW] rape you?' And she said 'He didn't rape me, but he tried'. 95 I note that SW did not give evidence about having a conversation with SGW later that night at her home. The differences in the precise words used during the conversation and indeed the location for part of the conversation has not caused me to doubt that the essential details conveyed by SW to her mother when she complained in May 2020 as described by both SW and SGW occurred. I am satisfied that the conversation between SW and SGW about penile vaginal intercourse, as described by each of them, is the same conversation. Although, SW recalls it occurring in the car at the beach and SGW recalls the conversation occurring at the house later that night. 96 The difference between the two as to the location is explicable on the basis of the fallibility of human memory and the emotional nature of what was being conveyed. I am unsure, based on the evidence, if the conversation about penile vaginal intercourse (SGW said she used the word rape, SW said she was asked if he put his penis inside her) occurred at the beach or later that night. I do not think it is important in terms of the admissibility of the evidence where the conversation occurred. To the extent that it is possible, that the penile vaginal intercourse complaint occurred during a second conversation later that night (and not at the beach) I am satisfied that the further conversation amounts to an elaboration of the initial complaint and is ‘sufficiently connected with the initial complaint so that the whole can reasonably be viewed as one complaint’.7 97 Based on the evidence of SW and SGW, I am satisfied that SW’s complaint was referrable to the alleged offending and included detail about the accused attempting to have penile vaginal intercourse with her. The complaint evidence explains how the alleged offending came to light. I am satisfied that SW 7 R v P, S [2016] SASCFC 97 at [24] (Nicholson and Lovell JJ, with Parker J agreeing). -- 22 of 26 -- [2024] SADC 53 21 complained at a time when she had heard about another person complaining about the accused having done something sexual to them, and at a time when the accused was no longer living with her. In other words, she complained at a time when you might expect she would. 98 In my view, the complaint evidence is capable of establishing consistency of conduct and consistency of account. The evidence does not prove the truth of the allegations. There may be many reasons why SW chose to complain at the time that she did. As I have already indicated, her apparent reasons for doing so accord with common sense. In this context, I have considered the defence submission as to the suggested motive for her to fabricate her account. For the reasons already given, I reject that submission. 99 When SW explained the circumstances in which she came to complain to her mother, the words she used to do so included a reference to her hearing that there had been an allegation that the accused had done something of a sexual nature to another girl. What she heard DW had been accused of is hearsay, and cannot be relied upon for the truth of the assertions contained in the statements. The only use that I have made of the evidence, is that it explains why she decided to complain, and it gives context to the words she used to complain to her mother. The complaint would be unintelligible without reference to the unrelated offending. I have otherwise ignored the evidence. I have not relied on the evidence for the truth of what she asserts she heard. I have not reasoned that the accused had committed a sexual offence against another girl, or even that he had been accused of having done so, only that SW thought there had been such a complaint. 100 I briefly mention the statement of Constable Elise Sexton, dated 14 November 2021 which was tendered by consent (the Sexton statement). The Sexton statement confirms that SW and SGW presented at the Whyalla Police Station on 1 June 2020 at 8.53 am and reported the matter to the police. Brevet Sergeant Kerry-Anne Griffiths gave evidence to the same effect. The Sexton statement then goes on to detail a number of conversations that both SW and SGW had with Constable Sexton on 1 June 2020, as well as other details about the accused being in custody at that time in relation to unrelated sexual offences concerning DW’s niece. 101 Whilst the Sexton statement was tendered, nothing more was said about the evidence contained in it and its relevance to any fact in issue at any point during the trial, by either party. The only limited relevance of Constable Sexton’s statement is that it refers to the date SW and SGW attended at the police station as being 1 June 2020, which, in turn, places the date of the complaint by SW to her mother as being 31 May 2020. In any event, as I have said, Brevet Sergeant Griffiths gave that evidence anyway and in those circumstances, I have ignored the Sexton statement entirely. It is probably unnecessary to say anymore, but for the sake of clarity I make clear that the conversations between SW and Constable Sexton were not said to be complaint evidence and I have not had any regard to the Sexton statement for that purpose. I indicate that I have ignored the Sexton -- 23 of 26 -- [2024] SADC 53 22 statement to the extent that it details the conversations between SW and SGW and Constable Sexton. It follows that I have not relied on the detail contained in the Sexton statement as evidence that supports SW’s credibility in any way. In addition, I have completely disregarded those parts of Constable Sexton’s statement that refer to other allegations of sexual offending and as to the accused’s custody status in June 2020. Other opportunities to complain 102 Before leaving the complaint evidence, it is necessary to mention a defence submission that was made about SW failing to complain about the accused sexually abusing her prior to 2020. I will briefly outline the relevant evidence. 103 In 2017, SW gave evidence that she was spoken to, at school, by the police about a friend of hers, who was, at that time, a missing person. She agreed in cross- examination, that when she spoke to the police, she was in a supportive environment and that during the discussion, the police asked SW about her home life and that she made no mention, at that time, of any sexual abuse. 104 Further, apart from the time the police spoke with her in 2017, SW agreed that she was cared for by her grandparents (on her mother’s side) at different times when she was growing up and that she never complained to them about what the accused had done to her. 105 The defence argued that SW had the opportunity to complain in 2017 to the police and when she visited her grandparents but didn’t. The reason for that was because nothing happened to her. 106 I have considered this evidence in the context of the weight to be given to the complaint evidence and, more generally, whether this evidence should affect my assessment of SW’s credibility. 107 I find the defence submissions on this topic unpersuasive. First, as to not telling the police in 2017, when SW spoke to the police, they were trying to find a friend of hers who was missing. The police were very much focussed on other things. That was hardly an environment that was conducive to telling the police about what occurred to her. One can easily see why she might not complain at that time. 108 Second, as to her failure to complain to her grandparents while she was cared for by them, there may be many reasons why she may not have wished to complain at that time. SW said that she did not complain for many years because she was scared and confused about what was happening. Even though she came to realise that what the accused was doing to her was not right, she said she did not tell anyone because: I just didn’t want to be the reason that my family split, and scared that I was going to be the blame for it, and scared that I was going to be told that it was my fault that he was doing this to me. -- 24 of 26 -- [2024] SADC 53 23 109 I found her explanation for not complaining earlier compelling. It is also relevant to consider SW’s evidence that for some time she was quite prepared to forgive the accused for what he had done to her. She loved him and wanted to forget the past, which is another reason why she might not have complained at times when there was an opportunity for her to do so. Conclusion and findings 110 The prosecution case relies solely on the evidence of SW and in those circumstances, I have carefully scrutinised her evidence. Having done so, I found SW to be a truthful and reliable witness. My reasons for coming to that conclusion are multifactorial. SW’s detailed account about the sexual abuse which she said the accused perpetrated on her was convincing. There were various features of her evidence that had all the hallmarks of a genuine account. The description of the offending slowly progressing from touching on the outside of her clothing, to the inside of her clothes and then to penetrative acts, rang true. SW painted a vivid description of the accused putting his fingers, and later his penis, into her vagina and the associated pressure she felt because of her MRKH. I have already outlined the compelling nature of her evidence when explaining the letters and cards that she sent to SW. 111 SW made no attempt to enhance her evidence by reducing the opportunity for the accused to be discovered sexually offending against her. She said that her brothers were in the house and nearby when some of the offending took place. In fact, she readily admitted that the accused had removed the door to her bedroom because she kept slamming it. She said, at times, there was a sheet across the door, and at other times there was nothing. Her candour, despite the obvious adverse inference that might be drawn (as if he would offend against her in the way she describes if she had no door to her bedroom), ironically enhanced her credibility. 112 In assessing SW’s credibility, I have taken into account her complaint to her mother. The complaint evidence was capable of supporting SM’s credibility, although in the end I place little weight on this evidence in coming to the conclusions I have about SM’s evidence. It was the convincing detail she provided both as to the acts themselves and the surrounding circumstances which led to me to make the findings, I set out below. 113 I have considered the defence criticisms about SW’s evidence (the risk of detection, the limited opportunity to offend given SGW’s work hours, whether she would agree to go to the Levee Banks, the failure to complain in 2017, the letters and cards, and the motive to fabricate her account) both individually and collectively. Having considered those issues and for the reasons I have explained, it has not caused me to have a doubt about the honesty and reliability of SW’s evidence. 114 Based on the evidence of SW, I am satisfied that the accused: -- 25 of 26 -- [2024] SADC 53 24 (1) rubbed SW’s vagina on the outside of her clothing on more than one occasion; (2) rubbed her clitoris, underneath her clothing, on more than one occasion; (3) touched her breasts and kissed her in circumstances of indecency in the garage; and (4) put his fingers and penis inside her vagina. 115 As to the penetrative acts I am satisfied that the accused’s fingers and penis went at least past SW’s labia majora and, in those circumstances, amounted to sexual intercourse as a matter of law. The elements of unlawful sexual intercourse are satisfied beyond a reasonable doubt. In light of my finding, it is unnecessary to consider whether the accused attempted to commit the offence. 116 As to the other touching and the kiss I am satisfied that the touching and kiss occurred in circumstances of indecency. I am satisfied the elements of indecent assault are established beyond a reasonable doubt. 117 In light of my findings, I am satisfied that the accused committed more than two unlawful sexual acts when SW was a child, the accused was an adult, and the two were in a father-daughter relationship. 118 I find the accused guilty of the offence of sexual abuse of a child. -- 26 of 26 --