[2024] SADC 73

Prosecution: R Counsel: MS C DEMERTZIS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: BC Counsel: MS H LUU - Solicitor: ALMEIDA + ASSOCIATES Hearing Date/s: 11/07/2023 to 13/07/2023 File No/s: DCCRM-22-787 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 BC Criminal Trial by Judge Alone [2024] SADC 73 Reasons for the Verdicts of his Honour Judge Handshin 24 June 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES The accused is charged with four counts of unlawful sexual intercourse. The complainants, ES and DO, were 14 years old at the time of the alleged offending and were friends with each other. ES knew the accused through a suburban football club. DO met the accused for the first time on the occasion the subject of counts 2, 3 and 4. The charges related to two discrete episodes of offending: one said to involve sexual activity with ES and the accused and the other said to involve sexual activity between ES, DO and the accused at the accused’s house. On the morning after the second episode of alleged offending, and in the days that followed, the complainants had detailed discussions with each other about the events in question. According to ES, the complainants also had further contact with the accused later on the day following the second episode and initially agreed to again stay at his house, before deciding against that course. A week later, the complainants returned to the accused’s house and DO took a recording of them behaving in a frivolous and jovial manner in the accused’s bedroom. The accused gave evidence on oath denying the commission of the charged acts. Held: The complainants presented as generally credible witnesses. Although collusion and contamination could be excluded as possible explanations for their allegations, there were various inconsistencies in and conflicts between their accounts which reflected on the reliability of their evidence in material respects. The accused also presented, in various respects, as a credible witness, although aspects of his evidence were also troubling. The accused remained steadfast in his denials of the offending and his denials were not substantially undermined by cross examination. In circumstances where the evidence of ES and DO on the one hand and the accused on the other appeared in important respects to be credible, yet as to the charged acts mutually exclusive, it was not possible to determine where the truth lay. Accordingly, the accused is not guilty of all charges. Verdicts: Not guilty. -- 1 of 69 -- Criminal Law Consolidation Act 1935 (SA) ss 49(1), 49(3) and 49(7); Evidence Act 1929 (SA) ss 13BA(3), 13BA(6), 34CB, 34L, 34M and 34P(2)(b), referred to. R v Dookheea (2017) 262 CLR 402; De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100; R v Alwazan [2016] SASCFC 155; Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257; Liberato v The Queen (1985) 159 CLR 507; R v B, DWL; R v B, CG (2019) 134 SASR 28; [2019] SASCFC 101; Gately v The Queen (2007) 232 CLR 208; Kirkland v The Queen [2021] SASCA 14; JGS v The Queen [2020] SASCFC 48; R v T, WA (2014) 118 SASR 382; R v R, PA [2019] SASCFC 19; Hughes v The Queen (2017) 263 CLR 338; TL v The King [2022] HCA 35; The Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; JS v The Queen [2022] NSWCCA 145; Pell v The Queen (2020) 268 CLR 123; DES v The Queen [2020] SASCFC 32, considered. -- 2 of 69 -- R v BC [2024] SADC 73 Criminal Jurisdiction 1 The accused is charged on Information with four counts of unlawful sexual intercourse against two complainants, who I will refer to as ES and DO. At the time of the alleged offending in mid to late 2020, ES and DO were 14 years old and were friends with each other having attended the same primary school and having continued to socialise with each other whilst attending different high schools. 2 ES knew the accused through a suburban football club which I will refer to as ‘the Club’. 3 DO did not know the accused until the night of the alleged commission of counts 2-4. 4 The charges arise out of two discrete episodes allegedly involving sexual activity between ES and the accused on one occasion and ES, DO and the accused on another. 5 The accused elected to be tried by a Judge sitting without a jury. He pleaded not guilty to all charges and gave evidence denying the commission of the offences. I now publish my reasons for the verdicts I deliver. The charges and overview of the prosecution case 6 The charges are particularised as follows: First Count Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935). Particulars of Offence [BC] between the 1st day of July 2020 and the 8th day of November 2020 at Hope Valley, had sexual intercourse with [ES], a person under the age of 17 years, by inserting his penis into her vagina. Second Count Statement of Offence Unlawful Sexual Intercourse. (Ibid). Particulars of Offence [BC] on the 8th day of November 2020 at Modbury Heights, had sexual intercourse with [ES], a person under the age of 17 years, by causing her to perform an act of fellatio upon him. -- 3 of 69 -- [2024] SADC 73 2 Third Count Statement of Offence Unlawful Sexual Intercourse. (Ibid). Particulars of Offence [BC] on the 8th day of November 2020 at Modbury Heights, had sexual intercourse with [ES], a person under the age of 17 years, by inserting his penis into her vagina. Fourth Count Statement of Offence Unlawful Sexual Intercourse. (Ibid). Particulars of Offence [BC] on the 8th day of November 2020 at Modbury Heights, had sexual intercourse with [DO], a person under the age of 17 years, by inserting his penis into her vagina. 7 The prosecution case as to count 1 is that sometime between July 2020 and the end of the 2020 club football season – which was attenuated because of the COVID pandemic - and by pre-arrangement, the accused picked ES up after she left the Club. The accused and ES drove to a secluded spot in or around Hope Valley and engaged in penile vaginal sexual intercourse (count 1) in the accused’s car. 8 The second episode of alleged offending, which gives rise to counts 2-4, occurred sometime later, on 8 November 2020. In the early hours of that morning, ES contacted the accused via mobile phone asking if he could pick her up. ES was, at the time, in the company of DO and some other males in the Salisbury area and told the accused that she had no way to get home. 9 The prosecution case is that the accused collected ES and DO and drove them to his house at Para Hills. It is alleged that in his bedroom, the accused essentially propositioned ES and DO to engage in sex with him. The prosecution case is that ES performed oral sex on the accused (count 2) and then engaged in penile vaginal sex with him (count 3). Thereafter, ES went to sleep and it is alleged that the accused very briefly engaged in penile vaginal sex with DO (count 4). 10 The following morning, the accused drove ES and DO back to ES’ house where ES and DO that day and/or over the ensuing days discussed what had occurred on 8 November. DO, in particular, told ES that the accused had tried to have sex with her when ES was asleep. 11 Although the chronology is somewhat imprecise, it would seem that at some point thereafter, ES’ mother, MZ, was made aware of the allegations against the accused. Between Christmas and New Year’s Eve 2020, MZ made a report to the -- 4 of 69 -- [2024] SADC 73 3 police. At around the same time, the accused, it seems, was subjected to an assault that, on the evidence, MZ may have played some role in. 12 On New Year’s Eve 2020, ES spoke with the accused. The accused told ES that he had been assaulted by her mother, and there was some discussion about the allegations. The prosecution did not suggest that anything the accused said during that call was evidence of a consciousness of guilt. 13 On 21 January 2021, the investigating officer, Detective Amanda Casey, was assigned to conduct an investigation into the allegations against the accused. 14 On 9 February 2021, Detective Casey interviewed DO. At the conclusion of the interview, Detective Casey cautioned DO about disclosing the details of what they had discussed to anyone else given, as Detective Casey said, she still needed to speak with ES about the events under investigation. 15 It seems that both before and after 9 February 2021, Detective Casey made attempts to organise for ES to attend a police station for the purpose of participating in a prescribed interview. ES missed a number of appointments before finally attending for an interview on 17 March 2021. A recording of ES’ interview with Detective Casey was put before me as ES’ evidence in chief. 16 The prosecution called ES, DO, MZ and Detective Casey as part of its case. 17 The accused gave evidence in his defence denying that any sexual activity had occurred as between him, ES and / or DO. Legal directions 18 Before turning to a review of the evidence and explanation of my findings I remind myself of some fundamental matters. 19 The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. He is presumed innocent of the charges unless and until the prosecution proves each element of the offences charged beyond reasonable doubt. In this respect, I keep in mind the comments of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] concerning the standard of proof: …being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt. 20 As the finder of fact, it is necessary for me to make an assessment of the truthfulness and reliability of the witnesses who gave evidence. It is of course my prerogative to accept or reject all or parts of a witness’ evidence. -- 5 of 69 -- [2024] SADC 73 4 21 As the accused gave sworn evidence denying the allegations, I could only find him guilty if I reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt of his guilt on the prosecution evidence. It is not necessary for me to believe the accused’s evidence for it to give rise to a doubt.1 22 I am to assess the evidence of the accused in the same way as I assess the evidence of all other witnesses.2 I give the accused credit for taking a course which he was not obliged to. 23 The question for me is not whether I prefer the evidence of the complainants to that of the accused.3 Nor can I resolve the issues in dispute by making a choice as between the conflicting bodies of evidence.4 Even if I were to prefer the evidence of the complainants to that of the accused, that would not be determinative of the accused’s guilt. The accused may be found guilty if, and only if, I am satisfied beyond reasonable doubt that the prosecution have proved each and every element of the offences charged. 24 Equally, if, having considered all of the evidence, I am unsure where the truth lies, my verdicts must be not guilty. 25 I must give each of the four charges the accused faces separate consideration by reference only to the evidence admissible in support of a particular charge. The charges do not rise or fall together. My verdict in relation to any one charge cannot dictate my verdict in relation to the other charges. 26 In considering the evidence and whether I am satisfied to the criminal standard of the elements of the offences, I have brought an open and unprejudiced mind to bear. I remind myself of the importance of making a decision without sympathy, prejudice or fear. Elements 27 The elements of the four counts of unlawful sexual intercourse which must be proved by the prosecution are as follows: 1. The accused had sexual intercourse with ES and DO. Sexual intercourse is defined to include fellatio (count 2) and penetration of the labia majora by any part of the body of another person (counts 1, 3 and 4). 2. ES and DO were under 17 years old at the time the accused had sexual intercourse with them. 1 De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11]; R v Alwazan [2016] SASCFC 155, [3]. 2 Robinson v The Queen (No 2) (1991) 180 CLR 531, 535-536; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257. 3 Liberato v The Queen (1985) 159 CLR 507, 515. 4 De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11]. -- 6 of 69 -- [2024] SADC 73 5 28 Consent is no defence to a charge of unlawful sexual intercourse.5 Evidence of DO 29 DO was 17 at the time she gave evidence and 14 at the time of the incident alleged to have taken place on 8 November 2020. 30 DO knew ES as they attended primary school together and although they went to separate high schools, at the time of the alleged offending they remained friends with each other and had contact via social media and on weekends. DO would occasionally stay at ES’ house on weekends and vice versa. DO said that her friendship with ES essentially came to an end around September 2022. 31 In cross examination, DO said that she and ES had been good friends even after they began attending different high schools. She said sometimes they took drugs such as MDMA together. DO said she had done MDMA with ES ‘once or twice’ and had consumed MDMA with other friends. 7-8 November 2020 32 DO gave evidence that on 7 November 2020, she had been out with ES and a number of other friends ‘driving around’. At around or sometime after midnight, ES organised for the accused, who DO did not then know, to pick them up from nearby to the Salisbury Train Station. 33 DO gave evidence that the accused drove them to what she came to understand was the accused’s house. Upon arriving, the accused showed ES and DO to his bedroom. 34 As there was no dispute that ES and DO were at the accused’s house in the early hours of 8 November 2020, I do not propose to set out the detail of the evidence given by DO about the layout of the house. 35 DO said that after being shown to the accused’s bedroom, she and ES sat on the accused’s bed. The accused told the girls to be quiet and suggested they watch a movie called Magic Mike. The accused then positioned himself between ES and DO on the bed and put his arms around their shoulders as they sat three abreast on the bed. DO said the accused then asked the complainants if they had ‘daddy issues’; if they had ever had a ‘threesome’ before and if they wanted to ‘try one’. DO awkwardly responded ‘no’. She said the accused kept asking ‘the same kind of questions’ before turning around to face them and asking ‘So who’s going to fuck me first?’ 36 The accused told the complainants to remove their clothing and they eventually did so, leaving their under garments in place. DO described feeling 5 Criminal Law Consolidation Act 1935 (SA), s 49(7). -- 7 of 69 -- [2024] SADC 73 6 ‘really scared’ throughout this interaction and said she was ‘kind of just listening to what he told me’. 37 DO said that ES, in apparent reply to the accused’s question, said ‘I’ll do it’. DO told ES ‘you don’t have to do this, like you don’t have to do this’ but ES got on top of the accused and engaged in penile vaginal sexual intercourse with him (count 3). 38 According to DO, ES also performed oral sex on the accused at some point (count 2). DO said that when this was occurring, the accused was trying to get DO involved, explaining that he was ‘kissing me with his tongue and he was trying to finger my vagina at the same time’ (uncharged). DO said that she was endeavouring to clench her legs so that the accused could not ‘fully’ penetrate her vagina. 39 Similarly, when ES was having sex with the accused, he tried to involve DO by kissing her and trying to digitally penetrate her. 40 DO said that after a period of time of ES having sex with the accused whilst sat atop him, they changed position and the accused had sex with ES from behind her. DO thought the accused ejaculated having regard to the sounds he made and his face. 41 DO said that the accused then left the bedroom for five to 10 minutes, at which point she told ES not to leave her because she was concerned the accused was going to return to the bedroom and want to have sex with her. ES then got on to the floor in the bedroom and, according to DO, went to sleep. 42 When the accused returned to the bedroom, he sat on the bed in the same position he had been previously. DO said she laid down on the bed facing away from the accused who began cuddling her from behind. DO said she felt the accused’s penis become erect and he attempted to penetrate her vagina with his penis. DO explained (count 4): A Yeah, after he tried, yeah, he was able to put it in but he didn't have it in for long as I felt it, as I felt his penis inside of my vagina, inside my vagina, I - my body kind of freezed up and I freaked out and I said 'Please, please, please stop' and he took it out and he stopped but he did put it inside of me. Q You said your body freaked out. A Yeah, it freezed up. Q What did your body do, what did you do when you say you freaked out. A Kind of like just - I just was like frozen, then I just like tried to like move myself forward so like as best as I could move like my torso kind of forward so his penis would come out and yeah, then I just moved and I said 'Please stop', like I freaked out, I couldn't help but say like 'Stop'. -- 8 of 69 -- [2024] SADC 73 7 Q Did he stop. A Yeah, after, after I freaked out, he did stop but the whole time when he was trying to put it in me, he wasn't stopping, he was doing that, he was trying to do it for a while and eventually he fully like he got it and then yeah, then I freaked out, then he did stop and he didn't try again after that. Q What did you do after he stopped. A I just kind of laid there, then he was cuddling me and, yeah, that's it. Q And did he say anything after that. A I can't remember if he said anything. Q Did you say anything to him. A I don't think I would have said anything, after that I was, I was kind of in disbelief and I was feeling really scared and just playing like the events back in my mind as to what just happened and trying to like understand like what had just happened but, yeah. Q It might be a silly question but did you go to sleep that night. A No, I didn't. 43 As it became light outside, DO thought ES got up and told her that they needed to get back to ES’ house. As they were leaving the accused’s bedroom, DO said she took a photograph of the accused’s leg and the end of the bed using her mobile phone. She said she did this because she knew at the time that what had happened the night before was ‘wrong’ and that she would need ‘proof that I was there’, so she quickly took a photograph of the accused’s leg. 44 DO said that the accused then dropped her and ES at a park near ES’ house. After the accused had dropped the complainants off, DO said they looked at each other ‘and we just “what the fuck was that …what happened?”’ DO said she could not remember saying anything else to ES at that time. However, DO said that she eventually had a detailed discussion with ES about what happened. She gave the following evidence about her discussions with ES: Q. At some point have you had a detailed discussion with [ES]. A. Yes. Q. When was that. A. I can't remember exactly when but we - me and her had bits and pieces. We talked about bits and pieces of it and then eventually we did have a detailed discussion as to what happened but it has been hard for me and her to speak about it with each other because obviously it is like a very uncomfortable position for us to be in as we were both 14 and it was hard for us to talk about. Q. What have you told [ES] about what happened when she was asleep. -- 9 of 69 -- [2024] SADC 73 8 A. She knows exactly what I have told you today, I've told her the same thing. Q. When did you tell her that. A. I can't remember. HIS HONOUR Q. I appreciate it is sometimes difficult to recall the specific words that you have used when you have told someone something but when you say that [DO] knows what happened – [ES] knows what happened when she was asleep. Can you help me with what sort of words you used to explain to her what went on. A. I would have just - I can't remember the specific words that I used but we have had conversations about what has happened, yes. XN Q. I might be a broken record in asking when. How long after the event did you have those conversations. A. Well, me and her remained friends for, like, a while after it happened. So, we did talk about it sometimes, yeah. I can't give you exact dates and times of when we did have these discussions. 45 DO was asked whether ES told her anything about the events the subject of the charges. She gave the following evidence: Q. What about her, did she tell you anything. A. She disclosed to me that prior to the time that me and her went to [BC’s] house she had had sex with him prior to that and I didn't know that going into his house. I found that out afterwards. Q. How long afterwards. A. I can't give you that but it was a little - it was a little while after that I found out. Q. When you say 'a little while', are we talking - A. May be like a few months. 46 It was not suggested by the prosecution that this disclosure by ES constituted the initial complaint of count 1 within the meaning of s 34M of the Evidence Act 1929 (SA). Rather, the evidence was led on the basis the fact and detail of a conversation about what is said to be count 1 was relevant to questions of collusion or contamination. As will be seen, ES gave evidence that she disclosed the incident the subject of count 1 to DO on the morning of the sleepover, not some months later. 47 DO said that her friendship with ES came to an end around September 2022. She was asked about discussions she had with ES concerning the events of 8 November 2020 prior to that time: -- 10 of 69 -- [2024] SADC 73 9 Q. In that time how often had the two of you spoken about this incident. A. I mean, every now and then. It wasn't - like we didn't really bring it up that much. Sometimes, sometimes we would speak about it. Q. When you did speak about it, did you go into any detail about what happened or just about the incident in general. A. We just wanted to give each other support as we both were there with each other and, yeah, it was normal as friends just talking about it trying to, you know. Q. Was there any, that is did you discuss any of the actual detail of what had occurred. A. Some, some detail but it wasn't, I guess, like fully like – may-be once or twice we did discuss like the detail but it was more just like just trying to see if we were okay and just saying like 'Yeah, fuck that'. Subsequent attendance 48 DO said that a week or so after the events of 8 November 2020, she and ES returned to the accused’s house. Whilst there, DO recorded footage of ES doing a back flip on the accused’s bed. 49 The prosecution tendered a recording and still image of the photograph taken by DO (P5) on the morning of 8 November 2020 as well as a recording of the video made by DO a week or so after those events, when she and ES returned to the accused’s premises (P2). The form in which the photograph and the footage was put before me was explained by the subsequent evidence of Detective Casey, who took a recording of the relevant clips and image from DO’s phone.6 50 The recording is important on the defence case because it shows both ES and DO in apparently high and frivolous spirits and essentially playing around in the accused’s room just a few days after they say the accused engaged in unlawful sexual activity with them, which the defence contend is fundamentally incompatible with their evidence about what happened on 8 November 2020. Cross examination 51 In cross examination, DO denied consuming alcohol or taking MDMA with ES on the night of 7-8 November 2020 and said she did not see ES consume MDMA that night. 52 DO said she could not remember the accused calling ES’ mother and asking her for permission to take both girls back to his house. 53 She agreed that when she participated in an interview with a police officer (Detective Casey) about the events of that night she did not mention being driven 6 T152-153. -- 11 of 69 -- [2024] SADC 73 10 around in a car by other males. It was put to DO that this was a detail she had made up since speaking with the police; a suggestion that DO denied. 54 As to the events at the accused’s house, DO denied that the accused retired to the lounge room to sleep after putting a movie on for DO and ES. 55 DO confirmed in cross examination that she was ‘scared’ and ‘disgusted’ by what happened at the accused’s house and was in ‘disbelief’ until she started processing the events a while after. DO said further that she was scared of the accused but despite this, she kept in contact with him via Snapchat in the period after the alleged offending until she decided to ‘…just completely cut off the contact and report it to the police’. 56 DO said she had understood that there was another male at the accused’s house following their arrival on 8 November 2020. DO understood the other male to be in a bedroom next to the accused’s bedroom. 57 As to the sexual activity, it was put to DO that when she spoke with the police she did not mention ES and the accused having sex ‘doggie-style’. DO said she could not remember exactly what she had said to the police but maintained sex of that description occurred. It was subsequently agreed between the parties that when interviewed by Detective Casey, DO did not describe ES and the accused in a ‘doggie-style’ position.7 58 With reference to DO’s evidence that the accused had ‘tried’ to penetrate her vagina digitally whilst engaging in sexual activity with ES, DO confirmed that the accused put his finger inside her vagina ‘a little’. It was put to DO that she told Detective Casey that ‘[The accused] was trying to finger me but he couldn’t though because I was moving in a way that he couldn’t’. DO said she could not remember making that comment but confirmed the accused was ‘trying his best to finger me’. It was subsequently agreed that DO had in fact told Detective Casey that the accused ‘…was trying to finger me. He couldn’t do it though, because I was, I was like moving so in a way that he couldn’t – because his arm couldn’t reach like that’.8 59 It is apparent from what I have said thus far that the accused is not charged with any offence arising out of an attempt to or actual digital penetration of DO’s vagina or kissing her. The only permissible use of that evidence is to put into context the allegation made by DO that, shortly thereafter, the accused engaged in penile vaginal sex with her. In this sense, evidence that the accused had or tried to digitally penetrate DO and kissed her shows how the series of events leading to the charged act commenced and completes DO’s narrative of the extent to which she had sexual contact with the accused on this occasion. Of course, the evidence is not admissible to show that the accused is a ‘bad person’ or the sort of person likely 7 See P7, [2.2]. 8 P7, [3.2]. -- 12 of 69 -- [2024] SADC 73 11 to commit crime generally or crimes involving sexual acts against a teenage girl and hence the charged acts, and I have not used the evidence for any such purpose. 60 Returning to DO’s cross examination, it was put to DO that when she spoke with Detective Casey, she did not mention the accused leaving the bedroom after sexual activity with ES. DO said she could not remember whether she had mentioned this detail. 61 With respect to where ES went to sleep, DO was cross examined about whether she told Detective Casey that ES in fact went to sleep in the bed and not on the floor next to the bed. It was put to DO that she told Detective Casey that ES ‘laid down on the other side, she faced the other way and just went to sleep’. Whilst DO agreed making this comment,9 she said she probably meant that ES laid down on the floor on the other side of the bed. 62 DO agreed that the following morning the accused dropped the complainants at a place near ES’ house. She agreed that the accused stopped somewhere else on the way but could not remember where. 63 In relation to DO’s evidence about discussions between her and ES concerning the events at the accused’s house, it was put to DO that she told the police that the first person she spoke to about what had happened with the accused was in fact her mother. DO said she could not remember whether she made such a comment. It later became an agreed fact that DO told Detective Casey that the first person to whom she complained about the accused’s alleged conduct was her mother.10 64 When taken to her subsequent attendance at the accused’s house, DO agreed that she did not feel unsafe. Past complaint of sexual assault 65 DO was cross examined about a complaint she had made to the police that she had been forced to have sex with another male multiple times.11 It was put to DO that every time she found herself in trouble, she would make a complaint (inferentially a false complaint) about something having happened to her. DO said she never wanted to make a complaint about this other person, who was her ex- boyfriend. She explained that they would often argue and police would get called; and that on one occasion police attended her house and asked her if she wanted to take the matter any further, to which she said ‘no’. 9 See also P7, [3.3]. 10 P7, [3.4]. 11 As it was not suggested to DO that she had in fact been sexually assaulted by someone else, the cross examination on this topic did not engage s 34L of the Evidence Act 1929 as it did not concern DO’s sexual activities before or after the events the subject of count 4 but only whether a complaint about sexual abuse had been made: R v B, DWL and B, CG [2019] SASCFC 101; (2019) 134 SASR 28, [46]. The import of the cross examination was to suggest that DO was prone to make false complaints of sexual assault in certain circumstances. -- 13 of 69 -- [2024] SADC 73 12 66 It was an agreed fact that in January 2023, police recorded DO stating that on unknown dates from early 2021 until late 2022 a male forced her to have sexual intercourse with him multiple times.12 67 Accordingly, on the defence case, DO had made two complaints that she had been sexually assaulted by someone other than the accused, which is said to be demonstrative of a tendency on DO’s behalf to manufacture false complaints of sexual assault when she is confronted with trouble or a difficult situation. Interview with Detective Casey and collusion 68 DO was asked a number of questions about conversations she had with ES both before and after she was interviewed by Detective Casey. I set out the cross examination on this topic: Q. After you spoke to that police officer she told you that you couldn't speak to anyone about the details of what you spoke to her about, is that right. A. I don't remember but probably, yeah. Q. At some point after speaking to the police did you tell [ES] that you had spoken to the police. A. Yeah. Q. And did you tell [ES] that the police would like her to provide as much detail as possible about what's said to have happened on that morning. A. We didn't really talk about it that much. Q. Did you tell [ES] that if she spoke to the police that she would have to give a lot of detail to police. A. I don't remember any conversations between me and [ES]. Q. When you say you don't remember any conversations between you and [ES], you've remembered at least one that you've talked to us about. A. Yeah, I know that we have had conversations but I don't remember the details that were said in our conversations. Q. You agree though at some point you did tell [ES] that whilst she was asleep that he had put his penis in you. A. Yeah. Q. At some point you also showed [ES] that backflip video, isn't that right. A. Yeah. We would have looked at it like after we were there at his house. Q. And is it the case that you've encouraged [ES] to go to the police. 12 P7, [4]. -- 14 of 69 -- [2024] SADC 73 13 A. I never told her to do anything. I said that I'm going there for myself, what happened to me. If she feels comfortable to talk about what happened to her, then she can do that. Q. Did you tell [ES] the details of what you told Detective Casey. A. What, sorry, what do you mean like? Q. Did you speak to [ES] about what you had told police had happened that night. A. Well, yeah, because it's the situation, yeah, me and [ES] have gone over the situation, so yeah. Maybe not with all of the exact details but yeah, we had an idea of the situation as we spoke about it. HIS HONOUR Q. I think what Ms Luu is asking you is after you spoke to Officer Casey. A. Yeah. Q. Did you tell [ES] 'This is what I've said to Officer Casey'. A. No. Q. And then explained it to her. A. No, I would have just - I would have said to [ES] - I just said like - I just told her - I explained the situation of what happened with us. Q. What do you mean by that, sorry. A. So like - I would have like - like telling like Ms Casey, telling Amanda, like just like the details of what happened, so like how we got picked up by him, how we got to the house, going into the house, what happened inside the bed and then leaving, so all those details along the way. XXN Q. When you were speaking to [ES] about the details of what happened, going over your situation with her, I'm talking generally, not just specifically after speaking to Detective Casey. A. Yeah. Q. But when you spoke to [ES] about the situation, was it the case that you were doing so because you wanted [ES] to provide you with support for your allegations. A. No, I was confident that if I spoke to the police then something would be done about it. I didn't - I was never talking to [ES] about it for support. Q. Were you hoping that she would come forward to police to support your allegations. A. If that's what she wanted to do, then yeah. Of course, if she wasn't comfortable talking about it, that - that doesn't matter to me, like as long as I got to say what happened to me, then that's all I cared about. -- 15 of 69 -- [2024] SADC 73 14 Evidence of ES 69 The next prosecution witness was ES. Her evidence was put before me by way of the playing of a prescribed interview with police conducted on 17 March 2021, pursuant to s 13BA of the Evidence Act.13 ES also gave supplementary evidence in chief before me and was cross examined. 70 Although a judge sitting without a jury is not required to direct him or herself in accordance with s 13BA(6) of the Evidence Act when evidence is admitted in this form,14 I have reminded myself that s 13BA(3) of the Evidence Act allows for evidence in this form to be admitted. I have not drawn any inference adverse to the accused from the admission of evidence in this form, nor have I allowed the form of the evidence to influence the weight I give to it. 71 Special arrangements were also put in place for at least a portion of ES’ further evidence. I have not drawn any inference adverse to the accused from the fact that special arrangements were put in place nor have I allowed this to influence the weight I give to her evidence. 72 ES was 14 years old when she participated in the prescribed interview. 73 The interview presents in a somewhat fractured or discursive way in various respects. ES had a tendency to commence but not complete sentences and to otherwise change topics or introduce extraneous information in the course of answering questions, in a manner that might be thought generally consistent with her age at the time of the interview.15 There were, in addition, passages of ES’ interview where I found it difficult to discern whether ES was recounting events that she had observed or experienced or whether she was giving an account of things she had been told.16 Where it was unclear to me whether ES was speaking to matters about which she had first-hand knowledge, I have erred on the side of caution and not had regard to those portions of the interview. 74 I will endeavour to deal with ES’ interview with police and her supplementary oral evidence by reference to discrete topics. Attention Deficit Hyperactivity Disorder 75 In her interview with police, ES said that she suffers from ADHD which can affect her memory and cause her to be forgetful. 76 In cross examination, ES said that her condition makes her ‘more hyper than forgetful. I’m a bit forgetful like from long-term but I can remember what 13 I note that although the interview was tendered as P3 and with the corresponding transcript marked as MFIP3A, I have treated the audio-visual record of the interview as if it were ES’ evidence in chief and, accordingly, I have not reviewed the recording since it was played in court in the course of the prosecution case: Gately v The Queen (2007) 232 CLR 208. 14 Kirkland v The Queen [2021] SASCA 14, [55]-[63]. 15 See, for example, MFIP3A, p 37.47 – p 38.14. 16 See, for example, MFIP3A, p 13.8-15; p 27.33-39. -- 16 of 69 -- [2024] SADC 73 15 happened and stuff like that’. ES acknowledged the common-sense proposition that the importance of an event to her can influence the extent to which she recalls that event, irrespective of when it occurred. 77 ES agreed that she told Detective Casey that her memory of what had happened with the accused ‘wasn’t great’, but added ‘Yeah, it wasn’t great but I knew what I was talking about when I said what I said’. DO 78 In her supplementary evidence in chief, ES said that she went to primary school with DO. They remained friends when they commenced attending different high schools and would see each other weekly or fortnightly. 79 In cross examination, ES said that she would spend time with DO on the weekend and they would sleep over at each other’s house. ES denied that she and DO would take drugs together but acknowledged that she smoked marijuana and consumed MDMA in high school. 80 ES agreed that she would occasionally lie to her mother about where she was. The accused and drug use 81 ES said she knew the accused through the Club. She said that she had spent time with the accused at the Club and ‘the Skid / Skids’ which was a place people went to essentially show off their cars and perform driving manoeuvres such as ‘donuts’. 82 ES said that the accused initially thought she was 15 because she played in the Under 16’s football team but she later had a conversation with him during which it was apparent that he then knew ES was 14. 83 ES said that she had consumed what she described as MD on occasions when she would see the accused. She explained ‘most of the times we were with [the accused] I was on caps in all honesty I was doing MD, I started doing MD heaps and I admit that. And he used to take me and that to the Skid and we just used to watch the cars go’. 84 In cross examination, ES said that after she was introduced to the accused by a friend, ‘he used to take us to Skid and that’s when we’d do MD[MA]’. ES said this occurred primarily on Friday or Saturday nights but not necessarily every week. ES acknowledged – as she had said in her prescribed interview – that there was ‘probably’ a period where she took MDMA four weeks in a row. 85 ES said that the accused did not like her taking MDMA and told her she should stop consuming the drug. -- 17 of 69 -- [2024] SADC 73 16 86 ES said that in 2020, her mother did not have a driver’s licence and if ES needed transport, the accused would pick her up and take her where she needed to go, but not regularly. 87 ES said that in 2020, she did not get on particularly well with her mother and, as far as ES knew, her mother was unaware she was taking MDMA. She said that her mother and the accused also became friends with each other at some point, but she did not suggest their friendship was a particularly close one. 88 ES said the accused had a younger brother who was around the same age as ES and who took a liking to her. 89 ES initially agreed that the accused was something of an ‘older brother’ figure to her who looked out for her and occasionally provided her with transport. ES also suggested that the accused ‘got a bit jealous’ with her when she was in year 9, and she recounted a story of the accused telling her mother of an occasion when ES had a boy at home without her mother’s knowledge. ES denied that she had confused the accused caring for her as a younger sister with jealousy. 90 Curiously, at the end of her cross examination, ES said that she never saw the accused as an ‘older brother’. In response to a suggestion that ES ‘fancied’ the accused, ES said ‘Yeah, I guess’. The alleged offending Count 1 91 Although detailed discussion about count 1 occurred later in the interview and after ES had described the events said to comprise counts 2 and 3, it is convenient to set out ES’ narrative of count 1 at this point. 92 ES said that on the occasion the subject of the charge, she had been at the Club and then left to play netball before returning to the Club later the same day. She said she had no internet connection on her phone and her phone was running out of battery so she started to walk home. ES said it was then that the accused asked her if she wanted to go for a drive. 93 ES gave the following account of count 1, which she said occurred in October or November 2020, ‘a few weeks before’ the events at the accused’s residence: AC Mmm. Ok. Now before all this happened, you mentioned that this has happened just with you and [BC] one time before. So tell me all about that time. ES So. So. That was like, that was like consensual. But obviously, like, I’d say it was consensual because I gave consent, but obviously I can’t actually give consent. … AC Tell me about everything that happened in the car. -- 18 of 69 -- [2024] SADC 73 17 ES Ok. So. He was like Oh, do you want to, and then I was like, Oh, like I guess. Like. I don’t know, I was awkward. Like we were really awkward. Like. Basically he’s like OK come on and then like put – you know, my top, and then he was like. I like, I get, I got real awkward. Like I got so awkward. And like when he was touching me I was like, I like it like that, you know, like…like…that…kept going like that. And he was like, Oh you alright, and I was like, Oh yeh yeh yeh I’m fine, I’m like Yeh. And then. So. I was on top of him and then he was like moving me, like you know, he kept just like moving. Yep, kept trying to like, kind of like swap positions, and that, kept trying to move and all that, like, I don’t know. It was just. I don’t know. AC How was he trying to do that. ES Huh. AC How was he trying to do that. ES He was like. He was like. He goes Oh go this way, go this way, like. And then he was trying to like, do different – I don’t know what sex position, try to do different sex positions. And I was like, you know, all awkward and all that. And then, what’s it called. We fucked basically. Like you know. We fucked then. And then… AC Where in the car did that happen. ES In the back. AC In the back. ES In the back seat. And then we got out and then we went and we drove around and he dropped me off near the creek near my house. And when I got home and my mum was like Oh, where have you been. And then I said I went and picked up a bag, and then I came home. But that’s not actually what happened. I said I went and picked up a bag and then I came home. AC How long before the second time, that you…?... ES Oh see, that was ages before the second time. It was like so long before the second time. I don’t know how long, but it was a few weeks before the second time. 94 Importantly for reasons that will become apparent, ES said that count 1 occurred on a Saturday, after the accused had played a football game: AC Did that happen on a week day or a weekend. ES It happened on a weekend, on a Sunday…no. Saturday, because there was senior games. Sunday. AC So there was senior – so it happened on a Saturday. OK. And what, when you said this was a…?... ES Saturday around like four, five. AC Mmm. ES Around like four, five. -- 19 of 69 -- [2024] SADC 73 18 AC And that was on a Saturday. ES And, yeh… 95 At the end of her interview, ES told Detective Casey that she did not care if the accused did not ‘get into trouble’ for having sex with her in the car, but wanted him to get in trouble ‘for the other thing he done’. 96 In cross examination, ES said that count 1 took place on a Saturday, a ‘month or two’ before counts 2-3. She agreed that during her police interview, she had identified the incident as occurring in October / November after looking through her phone. ES said she was not ‘100% sure’ when count 1 allegedly occurred. ES agreed that in 2020 – when count 1 is said to have occurred – the impact of COVID meant that the club football season had been shortened to only nine games. ES acknowledged that the regular season ended in August of 2020 and finals ended in September 2020. When it was put to ES that this meant it could not have been the case that the accused picked her up following a football match held in October or November of 2020, ES said that she ‘must have got the month wrong’. 97 Returning to the preamble to count 1, ES said she had been watching the seniors play football. She said the accused had played a game and had then gone home before returning to pick her up. ES said she had text message communications with the accused over Snapchat about him picking her up and that she then ‘walked off from the club a different way so no-one would see that it was [the accused] picking me up because that’s what he wanted so no-one at the club knew and when no-one at the club would have been able to see, that’s when I got in the car’. 98 ES agreed that to access Snapchat via her phone she needed an internet connection, which she said was available to her at the Club. ES agreed that she had told Detective Casey during her interview that she had no internet on this particular day and her phone was ‘dying’. ES agreed further that she did not tell Detective Casey that she used someone else’s internet connection to use Snapchat on this particular day. 99 ES was then taken to the account she gave in the prescribed interview about how she came to be picked up by the accused. She agreed that she told Detective Casey that the accused was at the Club and asked her if she wanted to go for a drive. ES said ‘Yeah, I agree that’s what I said but I might have messed it up. I don’t know. So he didn’t talk to me in person. It was just over message’. 100 ES said that when she got home after count 1, she told her mother that she had been to pick up a bag of marijuana, but she denied smoking marijuana or taking MDMA before the events the subject of count 1. 101 As to the events in the car itself, ES said that the accused probably ejaculated during sex. When asked where the accused ejaculated, ES said ‘I don’t know he probably just pulled out…Maybe on my back, I’m not sure’. -- 20 of 69 -- [2024] SADC 73 19 8 November 2020 – counts 2-4 102 Returning to her prescribed interview, ES said that on one occasion, the accused had picked her and DO up as they could not get home. She said that they went back to the accused’s house and were laying in his bed. She provided what is, on the prosecution case, a summary of counts 2 and 3 in the following terms: ES So like, I wouldn’t like never ever expected anything like. You know when he’s weird I used to put a blind eye, like you know, I didn’t think of anything. ‘Cos he’s never weird towards me you know. But. Yeh, and we went back to his. And then we were laying in the bed and then he was like, “Oh like, don’t be frigid”, he’s saying we’re frigid and all that. And then what, I’m like dude, you’re like 25 you know. It’s not being frigid but you’re 25 and we’re 14. That’s not frigid. That’s us not in, being with a paedophile really. And then he was like, taking like, our pants, and then, he like made me suck his… and he was trying to get [DO], like to fuck and all that. And [DO] wouldn’t. And then he was like, he like, put it – stuck it in me. And then after that I like, I got off, like he didn’t finish nothing. I got, you know, I was like “I’m going to bed” and then, when I was asleep, I got told he stuck it in [DO], and [DO] was like, telling him like Nah, like get off, like, you know. AC Yeh. ES And then the next day we just left and I, I – acted like nothing happened, I just didn’t want to like … 103 ES confirmed that something had happened between her and the accused ‘once before’, adding ‘But it was like, you know, it wasn’t expected like, to ever happened [sic]. And then, then the [DO] thing, and then it happened again’. 104 When the interviewer returned to the events of 8 November 2020, ES said that she and DO had been out with friends and had no way to get home so ES asked the accused for a lift. She thought it was around 3am. She said that the accused rang her mum and her mum said ‘Ok, they can sleep at your house’. And he was like, ‘yeh I’ll sleep on the couch and they can sleep in my bed…’ 105 ES added that she and DO had been with ‘Afghan boys’ she knew earlier that night and the accused was ‘getting jealous’ for this reason and because ‘he’s told me he’s loved me before’. ES said that during the car ride to his house, he was asking the girls if they had sex with the Afghan boys. ES said the accused called her a slut. 106 I pause here to note that DO did not suggest in her evidence that anything resembling these conversations took place during the drive to the accused’s residence. 107 In cross examination, ES said that she had asked the accused to pick her and DO up earlier this evening but he had said no. She continued to ask him why he could not pick them up. ES added that the accused ‘kept saying he [or his mum] was in hospital this and that and then when my mum found out we were out of the -- 21 of 69 -- [2024] SADC 73 20 house he told my mum he would pick us up and then called her up and said “they can sleep in my bed and I’ll sleep in the lounge room”’. 108 ES agreed that she had consumed MDMA on this particular night, but said DO had not as DO did not take drugs. ES was then asked whether DO was aware she had consumed MDMA: A. I'm pretty sure. I'm not too sure if I told her but, yeah. May be she might have realised but I'm not sure to be honest. She didn't say anything about it. Q. You didn't have it in front of her. A. No. Q. How many did you take that night. A. May be like two, I'm not sure. May be one or two. Q. What about the boys you were with. Were they on MDMA too. A. No, they weren't. 109 ES said that the accused picked her and DO up from near the Salisbury train tracks at around 1 or 2am. ES said that she did not want to call her mother because her mother had work the next day. ES denied that another reason she did not want to call her mother was because she was on MDMA and did not want her mother to know as much. ES then said that after the accused picked them up, ‘he said to my mum that we can stay there [at his house] if we need because she has got work and he didn’t want it to be a hassle for her’. Curiously, ES then said that her understanding was that her mother in fact contacted the accused after finding out that she and DO were not at home and the accused agreed to pick the girls up. It ultimately became clear as the questioning on this topic progressed that ES was purporting to recount what she claims the accused had told her of a conversation he apparently had with her mother. 110 ES denied that it was her idea to go back to the accused’s house. 111 ES said that the accused seemed ‘pissed off’ because she was with the Afghan boys but she did not remember if he called her a ‘slut’. At the accused’s house 112 I return now to ES’ interview with police. 113 After arriving at the accused’s house, ES said that she and DO went to the accused’s bedroom and watched a movie – Magic Mike – put on by DO. She said the accused left the room and then returned, positioning himself between ES and DO. 114 ES thought that there was another male at the house who she referred to as the ‘tattoo artist’. -- 22 of 69 -- [2024] SADC 73 21 115 ES said that the accused asked why she and DO were ‘so frigid’ and suggested they sleep in their underwear. ES said that she told the accused she would change into football shorts, to which he responded ‘yeh yeh sure’ however when ES did change into football shorts (which she later said were the accused’s football shorts that he had allowed her to wear), the accused told her ‘take the football shorts off’. Under further questioning by Detective Casey, ES confirmed that the accused in fact asked both girls to remove their shorts,17 to which they responded ‘Nah’ and in that context reference was made to them being ‘frigid’. The accused was touching their legs underneath the blanket and putting his arms around them. The accused kept repeating ‘don’t be frigid’. ES subsequently said that the accused removed both hers and DO’s shorts and they were both left wearing G-string underwear. 116 ES said further that the accused then pulled ‘our undies’ off, which does not accord with DO’s evidence as summarised at [36]. 117 ES said the accused was ‘cuddling or some shit with [DO] or something’ and was saying: ‘come on [ES] he was like join in, or something, let’s do a threesome’. ES continued: … And then we were like No, and then he was like, Why you guys are so frigid again. Kept saying it. And then that’s when he was like, you know like, grabbing us, like, you know. And then he like put my head, like Come on, do it. And then, he like, Come on join in, and suck my dick, and he pulled my, like put my head like down to his… and like, and I just like, I put like – it was in my mouth, but I took it like out, I was like, you know. And then that’s when. I don’t know what he was doing with [DO]. I don’t know if he was making out with her or what not, I don’t know. But then that’s when he like, he like, like picked me up and put me on him, basically. And then he was like…Umm…I don’t…what he was doing. I don’t know [DO], was either kissing him or he was touching her, I don’t know. It was like one of them. And then I got off and I was like, laying down, and that’s when I fell asleep. And then I don’t remember till I woke up the next morning. 118 In cross examination, ES said that after arriving at the house, the accused told her and DO to be quiet so his housemate did not know there were other people in the house. She agreed that the accused helped them to put on a movie in his bedroom and that she asked if she could change into some shorts. ES said that the accused lent her a pair of his football shorts and a singlet top. 119 ES denied that after setting the girls up, the accused left them in his room and went and slept on the sofa in the lounge room. She said rather that the accused positioned himself in between them. ES maintained that the accused asked her to remove her shorts and that he also removed her underwear. She said that the accused used the word frigid and that she did not know whether it was directed at her or DO although she did not think it was directed at her. 17 ES said that she thought DO had been wearing shorts on this particular night: MFIP3A, p 19. -- 23 of 69 -- [2024] SADC 73 22 Count 2 120 In elaboration of count 2, ES explained that the accused grabbed her head and moved it towards his penis. ES said that ‘He’s tried to force me to suck his dick…And then I moved my head away from him. And then he, like, lifted me up and made me sit on his dick, and put it inside me…It went in my vagina’. 121 In the passage I have previously extracted from ES’ interview, it can be seen that she described the accused’s penis being ‘in [her] mouth’. Count 3 122 With respect to count 3, ES said: So he was, so basically when I was on him, and he was going like that, like moving me. Like you know like…like…I don’t know how like… He had hold of me, like, pushing like back and forward like, you know. And then I got off, like, I got off. And then I went and laid down, I was like, I’m going to bed. And fell asleep. But he was like, the whole time when he was like I don’t know what he was trying to do with me, but like, because like, doing – touching [DO] as well. So it’s like two of us at once. He’s doing it to. 123 ES said that she was ‘practically having sex with [the accused]’ and ‘[DO] was just like right there’ which ES said she thought was ‘extra weird’. 124 ES did not allege sex with the accused positioned behind her. The following morning 125 ES said that the following morning, the accused dropped her and DO at DO’s house having first stopped at his work at Mawson Lakes. ES and DO then returned to ES’ house because they wanted to go out with friends, but ES’ mum would not allow it. 126 ES told Detective Casey that the accused had further contact with her and DO later that day and invited them to again sleep at his house, which ES said they initially ‘agreed to’ but then ‘were like no’. Although it is a little difficult to follow, ES appears to have suggested to Detective Casey that the accused later collected her and DO from a bus stop near ES’ mother’s house. The accused told ES and DO, effectively, not to tell anyone about him picking them up. There was then a conversation between ES’ mother and the accused about the whereabouts of ES and DO but it is not clear to me whether ES was present for any such conversation. 127 In cross examination, it was put to ES that there was no sexual activity between her and the accused. ES disagreed. She said further, and in contrast with DO’s evidence, that the accused did not ejaculate during sex with her. 128 It was put further that there was no sexual activity between the accused and DO, to which ES responded: A. I don't know. I think he was trying to get with her but she didn't want to. I was already on top of him. Then I went to sleep after. -- 24 of 69 -- [2024] SADC 73 23 Q. Did you go to sleep on the bed. A. Yes, I did, right next to [BC]. He was in the middle and [DO] was on that side (INDICATES). Q. Is that where you remained until the morning when [BC] offered to take you guys back. A. Yep. 129 It will be seen that in the last portion of the extracted answer, ES said that after having sex with the accused, she went to sleep in the bed next to the accused and remained there until the morning. It will be recalled that DO’s evidence was that ES got down on the floor and went to sleep after the accused had sex with her. 130 ES said that, by reference to photograph 18 of P1, she slept on the left side of the bed (as one looks at the photograph) where a lamp can be seen. 131 ES said that the accused dropped her and DO back at ES’ house in the morning. She agreed that she told Detective Casey that the accused had dropped them off at DO’s house and explained that she was not sure whose house they were taken to ‘because I know one time he dropped us off at mine. One time he dropped us off at [DO’s]’. ES said she was confused about the dates and ‘what happened which time’. However, ES then agreed that she had asked the accused to drop them off down the road from her mother’s house. New Year’s Eve 132 Returning to her interview, ES told Detective Casey that she had contact with the accused on New Year’s Eve 2020 during which the accused told her that he could go to gaol for something that he did not do and essentially implored ES to agree that he had not done anything wrong. 133 In cross examination, ES confirmed that she spoke with the accused on New Year’s Eve 2020. He told her that he had been assaulted by ES’ mother and other people at her house. I pause here to observe that I have not drawn any inference adverse to the accused from the fact that he was assaulted by a person or persons including or known to ES’ mother. That evidence is only relevant to explain the context in which this telephone call seems to take place. 134 ES agreed that the accused said to her ‘you know this didn’t happen’. However, she added that the accused asked her to lie for him in this phone call and asked her to ‘delete all the evidence that [DO] had like the screenshots and like all the videos in his house off of her phone…’. 135 It was not suggested by the prosecution that anything I found the accused to have said during this telephone conversation could yield an inference of a consciousness of guilt on the accused’s part or that the words spoken by the accused included an implied admission. Indeed, the prosecution did not suggest -- 25 of 69 -- [2024] SADC 73 24 any particular use could or should be made of this evidence other than to aid in my assessment of ES’ evidence, although it is not entirely clear to me how the evidence could be permissibly used in this way other than insofar as it is common ground between ES and the accused that there was a conversation at this time that broadly concerned the allegations now made against the accused. I have not made any other use of the evidence. The subsequent attendance 136 ES was shown the photograph and recording that comprise exhibits P2 and P5. ES said that the photograph depicted the accused’s leg and the recording showed ES wearing the accused’s football shorts and basketball top and doing a back flip on the accused’s bed. 137 In cross examination, ES said she thought that the recording depicted the occasion on which counts 2 to 4 occurred but was confused. ES said she had planned on taking the accused’s basketball top – which she had put on – without his knowledge. Relationship between ES and DO after the alleged offending 138 ES said that after the alleged events of 8 November 2020, she and DO ‘stopped being friends for a bit when it all came out about what happened and then we started being like friends again. Then we talked about it a bit but not much.’ 139 ES thought the disruption of the friendship occurred when ES moved to her father’s house around a week after the events the subject of the trial. The friendship resumed in 2021. ES was unsure whether the friendship had resumed by the time of her interview with police, but thought it may have. Discussions with DO about the accused and police interview 140 In her evidence in chief, ES said that she told DO she had ‘got with [the accused]’ the day after she and DO slept at the accused’s house. 141 ES said further that DO told her what had happened at the accused’s house after ES had gone to sleep. ES said this conversation took place at a creek near ES’ house. They also spoke about what had happened when they were both awake. ES said they discussed ‘everything’ in the day or two after the alleged incident. 142 ES said they did not speak about going to the police because ES did not want to tell anyone what had happened. DO told ES that she would ‘be there for me if I did decide to go to the police but she didn’t tell me anything about going to, yeah’. 143 When ES moved to her father’s, she and DO did not talk about the incident. DO told ES’ mother about what had happened and, to ES’ mind, wanted to distance herself from ES. 144 ES told Detective Casey that she was scared of participating in an interview ‘cos [DO] told me you gotta give detail for everything. And I was like, I don’t -- 26 of 69 -- [2024] SADC 73 25 know every detail for everything like, I forget all the details. I don’t remember. All I remember is like, the main part that happened in that one time’. 145 In cross examination, ES said that she and DO were not speaking when DO made a report to the police about the events of 8 November. ES denied that DO told her she had made a report to the police. Rather, ES said that her mother had told her about a report being made. 146 ES denied that DO provided her with the details of what she told police, and ES said she could not remember telling Detective Casey that DO had told her the police wanted detail. She denied that DO had told her the police would want a lot of detail from her. 147 The prosecution did not suggest that there was any admissible evidence of an initial complaint made by ES in respect of counts 1, 2 or 3. The evidence of discussions between ES and DO was said to be relevant only to questions of contamination and collusion. The accused’s disclosure of ES’ use of ecstasy 148 Towards the end of her interview, ES explained to Detective Casey that the accused had told her mother about ES taking ‘MD one time’, which prompted her to warn him that ‘I wouldn’t go start telling my mum stuff, I’ve got something I can tell about you…’. ES went on: And I was with [DO] that time, ‘cos I was bawling my eyes out, I said, if I was you I wouldn’t go telling my mum stuff, ‘cos remember you, you did what, you did fuck, like you did have sex with me. And the he was like, he was like, he was like, he goes like What! And he was like I’m sorry, like, I didn’t mean to like, I was just looking out for you and all that. Like. And [DO] was like, even like yeh, like, but since ever happened with [DO], even says [DO]’s like, if you ever want to go to police just let me know, like I’ll always go, like friends. And she like, but...that’s what, I would’ve gone at the start but I was always scared I was gonna get in trouble. So that’s why I didn’t, like ever come. 149 In cross examination, ES said that it was possible that the accused told her mother about her consumption of MDMA but she was unsure. Later in cross examination, ES said she believed that the accused was the person who disclosed to her mother her use of MDMA. ES said she was ‘pissed off’ about the accused telling her mother ‘because he wouldn’t want me telling her what actually happened between me and him’. 150 ES denied that she had manufactured lies against the accused because she was unhappy that he had ‘dobbed’ about her MDMA use to her mother or sneaking a boy into the house or to support DO’s complaint: Q. What happened was you didn't like it when he dobbed on you to your mum. A. Dobbed on me about what? Q. Your MDMA, for example. -- 27 of 69 -- [2024] SADC 73 26 A. That was after me and him had already gotten together so. Q. You didn't like it that he dobbed on your mum about sneaking [DO]’s boyfriend into the house. A. No. Q. So when that happened, you then made the complaint to police. A. No, that happened after. Q. You went to the police in March of 2021. A. Yes, so that was much after he had dobbed on me to my mum about a boy in my house. That wasn't there for me so I didn't care. Q. We know at some point you accept that [BC] told your mum about you using MDMA. A. Yes. Q. Clearly, you weren't happy about that. A. It is what it is. She would have found out eventually. Q. Did you and your mum get into a bit of an argument about that. A. Not really a big - not really. She just told me to stop using it. It's not good for you and this and that but we didn't get into a fight about it, a big fight. Q. You learnt about [DO] making a complaint to police about [BC] and you decided to go to the police to support your friend with lies. A. No, that's not - Q. And the incident about the car, the four-wheel drive and picking you up, what I'm saying to you is that also is a lie. A. No. Evidence of MZ 151 MZ, the mother of ES, gave evidence as part of the prosecution case. 152 MZ said she met the accused through the Club in or around 2018/2019. Initially, MZ only had contact with the accused in the context of the Club but that changed when, from time to time he picked ES up from places and dropped her home. 153 MZ said that on one occasion, she went to ‘the Skids’ with the accused, ES and one of ES’ friends. -- 28 of 69 -- [2024] SADC 73 27 154 MZ said that in late December 2020, between Christmas and New Year’s Eve, she was contacted by DO and given information that caused her to go to the police. MZ told ES that she was going to the police. 155 In cross examination, MZ said that the accused would occasionally drive ES around during a period when MZ was ‘going through a little bit of trouble with my daughter…and occasionally…I didn’t know where she was and then I would find out after’. MZ said ES often lied to her about where she was during this period in 2020. 156 MZ said she found out about ES taking MDMA from someone other than the accused. Whilst MZ’s evidence on this topic conflicts with ES’ belief that it was the accused who told her mother about her use of MDMA – and, as will be seen, the accused’s evidence – the primary relevance of this aspect of the evidence is ES’ belief that it was the accused who made the disclosure. Evidence of Detective Casey 157 Detective Casey gave evidence that she interviewed DO on 9 February 2021 and ES on 17 March 2021. The accused was arrested on 22 April 2021. 158 In cross examination, Detective Casey said that after the photograph and recording on DO’s phone were documented, the phone itself was submitted for forensic extraction. Detective Casey then reviewed the extracted material and identified any items of relevance. Detective Casey said that the ‘full extracted data’ has since been deleted such that police only had access to any material that Detective Casey had tagged as relevant in her initial analysis. 159 Detective Casey said that the video of ES doing a back flip on the accused’s bed had a created date of 14 November 2020 and the photograph of the accused’s leg had a created date of 8 November 2020. 160 Detective Casey said that in reviewing the extracted material, she looked for messages between ES and DO and did not tag any messages as she did not locate anything relevant. 161 As to her interview with DO, Detective Casey said that at the completion of the interview she told DO that it was important she kept the details of the interview to herself as Detective Casey would need to speak to ES. 162 Detective Casey said that she had organised to interview ES on a number of occasions from late January 2021, but the interview did not take place until 17 March 2021 because ES was either unable to attend or did not turn up as scheduled. 163 Detective Casey was asked a number of questions about ES’ suggestion in her interview that the accused had removed her underwear. She agreed that in cases where a report of an alleged crime is made contemporaneously with an incident in -- 29 of 69 -- [2024] SADC 73 28 question, seizing an article of clothing such as underwear would be prudent. However, Detective Casey said that is not something that should necessarily occur where the allegation is not recent because the prospect of obtaining probative evidence in such circumstances is ‘extremely limited’. Defence case 164 The accused gave evidence in his defence denying the commission of the charged acts. 165 The accused was 28 at the time of trial and 25 at the time of the alleged offending. 166 In terms of his background, the accused completed his secondary education to Year 10 level and thereafter undertook a plastering apprenticeship before working in a variety of different trades. At the time of trial he was employed with a logistics company. 167 The accused suffers from ADHD and various learning difficulties including dyslexia and verbal comprehension limitations. He said the ADHD can affect his memory. 168 The accused met MZ through the Club where he had been playing football since 2013. He also met ES through the Club when she was playing Under 14 football. In addition to other roles he had around the Club, the accused was the ‘water boy’ for the Under 14 side in which his younger brother and ES played. 169 The accused said that as at 2020, he considered ES to be like a younger sister. He helped her with her football and would give her lifts home from time to time and take her to get food. The accused said that ES would message him on social media asking for a lift. Sometimes the accused would agree to ES’ requests and other times he would tell her ‘no’. 170 When asked how he came to be in contact with ES on social media, the accused said it was via Snapchat but could not recall how it came about and whether he and ES exchanged contact details at some point. 171 The accused said he could not recall how he thought ES viewed him as at 2020. 172 The accused said he was not initially aware of ES taking drugs but noticed a change in her behaviour on the first few occasions he gave her a lift. ES told him that she was smoking marijuana and taking MDMA. The accused told ES more than once that he did not like her taking drugs. He said further that he told ES’ mother about her drug taking during the 2020 football season. -- 30 of 69 -- [2024] SADC 73 29 2020 Football season 173 The accused gave evidence that the 2020 football season was interrupted because of COVID, which meant that the season was effectively halved with the Club’s last game being played in August 2020. He said the season would normally run until September. Count 1 174 In his evidence in chief, the accused said that he had given ES lifts from the Club on more than one occasion. The accused said this would happen when he was at the football club and ‘sometimes she – it would be “I’m too lazy to walk”, she just wanted a lift home because it would be quicker’. 175 The accused denied driving ES to a park or scrubland in the Hope Valley area and denied having sex with her in the manner alleged in count 1, or at all for that matter. Counts 2-4 176 The accused said the first time he met DO was on the night of 8 November 2020 when ES contacted him on Snapchat asking for a lift home. The accused said that ES had initially rung him but he had not answered her calls as he had found out his partner at the time was ‘cheating’ on him. 177 ES then messaged the accused asking him for a lift. The accused said ‘no’ but ES kept ‘bombarding’ him with messages – one of which was to the effect that ES had no way home - and he eventually relented and agreed to pick her up. 178 The accused drove from his house at Ingle Farm to the Salisbury Football Club where ES and DO alighted another vehicle and got into the accused’s vehicle. The accused said he was surprised to see someone in addition to ES as his understanding was that he was only collecting ES. 179 The accused said he noticed that ES was ‘munching her gums’ so he asked her if she had ‘been taking anything’, to which she responded ‘I’ve been taking MDMA’. The accused could not recall DO’s presentation. 180 The accused said he thought he was to drive the complainants to ES’ house but ES asked if they could stay at his house and said ‘[d]on’t take me home, I’m on MDMA caps, I don’t want mum finding out’. The accused was then living in rental accommodation with a retired tattoo artist. He said he drove the complainants to his house so they would have somewhere to sleep. 181 He denied calling ES a slut during the trip to his house or expressing any jealousy on account of ES and DO being with other males. 182 The accused said they arrived at his house sometime after midnight and he told the complainants to be quiet. The accused went to his bedroom and the complainants followed him, without invitation, although according to the accused, -- 31 of 69 -- [2024] SADC 73 30 he had offered his bed to the complainants as they entered the house. One of the complainants then asked the accused to put Magic Mike on, which he did, before leaving the bedroom. 183 The accused said he could not recall why he offered his bedroom, and not the sofa, to the complainants. 184 The accused returned to the living room and went to sleep. He denied engaging in any sexual activity with either complainant. The following morning 185 The following morning, the accused approached his bedroom with a view to waking the complainants. Upon opening the door, he saw the complainants were already awake. He told them he would take them home, having in mind taking them to ES’ house. 186 The accused acknowledged that the photograph P5 depicted his leg. He said he had no memory of the photograph being taken. 187 The accused dropped the complainants at a playground near ES’ house as ES had requested. 188 He could not recall what he did for the remainder of the day. 189 When asked about the recording of ES and DO being in his bedroom, the accused said he could not recall how they came to be in his room a week after they had slept at his house. 190 The accused gave evidence about a telephone conversation he had with ES on New Year’s Eve. He said he had got ES’ number from a friend and had called ES to explain that her mum had assaulted him and to inquire if ES knew about it. ES said she was unaware of the accused having been assaulted by her mother. The evidence of the accused continued: Q. Apart from raising the assault, what other topics did you raise with [ES] that day. A. About, apparently, I had slept with the two girls. Q. What did you say on that topic to [ES]. A. I said 'That you know that this didn't happen at all'. Q. At any stage in that conversation did you ask [ES] to lie for you to the police. A. No, I did not. Q. Didn't ask her to, sort of, lie to cover up anything that might have happened between you and her. A. No. -- 32 of 69 -- [2024] SADC 73 31 Cross examination 191 In cross examination, the accused said that he became friendly with ES’ mum in 2020 having seen her around the Club. They became Facebook ‘friends’ and exchanged messages. The accused did not have Snapchat communications with ES’ mum. 192 The accused met ES through her friend, C, and in the context of helping out with the ‘junior’ members of the Club. The accused could not say whether he met ES or MZ first in time. 193 By November 2020, the accused and ES were communicating over Snapchat. According to the accused, ES had sent him a Snapchat friend request which he accepted. The accused was not able to say how long it was after he first met ES that she sent him a friend request. 194 The accused said he and ES would communicate on Snapchat on a weekly basis. The accused would pick her up if she needed a lift and there was no one else who could do it and sometimes if ES wanted McDonalds, he would buy her food. 195 When asked to explain how he came to develop what he described as an older brother / sister relationship with ES, the accused gave the following evidence: Q. Can you just help me to understand how it was that you came to develop that kind of relationship with her. A. I had a bond with her where she used to get angry on the football field and I'll tell her 'It's not worth getting angry, just go for the ball, keep your feet, do the right thing and the ball always come to your feet'. Then if she was doing something that she wasn't supposed to do I'd go 'Don't do that, don't do that, you're going to get carded', stuff like that, just simple things like that. Pretty [sic] she could talk to me if she was having trouble at school, I would have a good conversation with her, I guess. Q. So sort of mentoring on the football field. A. Yeah, I was mentor because I like my football, I played it for 20 years. Q. Then similarly in relation to other issues, like school-related issues she might have been going through you would help her work through those; is that right. A. Yes, sometimes I'd have a conversation with her because my little brother has ADHD and my brother and her were very close, so them two would obviously talk and have little arguments I'm guessing, but I just try to step in to say 'Hey, that's not right, there's a certain way to do things'. 196 As to the events of 8 November 2020, the accused confirmed in cross examination that he had expected to take ES home that night. He said he did not because ES asked him not to as she had consumed drugs. The accused acknowledged however that sometime after this particular night, he had in fact told ES’ mother about her drug use. On this topic, the accused’s evidence as to the reaction of MZ when he made this disclosure was rather unenlightening: -- 33 of 69 -- [2024] SADC 73 32 Q. When you told [ES’] mum about her drug use, how did her mum react. A. I don't really recall how she reacted. Q. Was it a conversation you had with her mum over telephone or face-to-face. A. No, it would have been maybe face-to-face I'm thinking. Q. Whereabouts. A. Maybe at the club, I don't really recall. Q. And you can't recall her mum's reaction, if any. A. No. XXN Q. So the conversation you had with [ES’] mum was after 8 November. A. Can you explain that again? Q. So the night they slept at your house was 8 November, correct. A. Correct. Q. And the conversation you had with her mum about the drug use was after that. A. Correct. Q. The footy season had finished before that. A. Correct. Q. Where did you see her mum. A. At the shops I'm thinking. HIS HONOUR Q. Sorry, I missed that. A. I believe maybe at the shops, I don't really recall. XXN Q. So you don't know exactly where that conversation occurred. A. No. Q. Is that correct. A. Correct. Q. You think it was in person but you're not sure. -- 34 of 69 -- [2024] SADC 73 33 A. I'm not sure. Q. And you can't tell us what her mum's response was to you telling her her daughter had been taking drugs. A. I don't recall. Q. How long after the night that she'd stayed at your house did you have that conversation with her mum. A. Don't recall. 197 The accused was challenged about why it was that he offered his bedroom to ES and DO. I set out the cross examination on this topic: Q. If we look at photograph No.6 on p.3, you've told us that if we look at the right-hand side of the hallway the first door is yours. A. Correct. Q. The second door would have been your housemate at the time. A. Correct. Q. And his bedroom, I think you said, was bedroom 2. A. Correct. Q. So bedroom 3 is one of the other doors in that hallway, is that right. A. Bedroom 3 would be at the end of the corridor. Q. So the door that we can see - A. That's straight. Q. - straight in the middle. Was anyone living there at the time. A. Yes. Q. So you had two housemates effectively. A. One. Q. So who was using bedroom 3. A. That was the spare room. Q. Was it set up with a bed. A. Yes. Q. Why didn't you get the girls to stay in that room. A. I don't recall. -- 35 of 69 -- [2024] SADC 73 34 Q. Why didn't you offer one the couch and one the spare bed. A. I don't recall. Q. You chose to allow two 14-year-old girls to sleep in your own bed. A. I don't know. Q. But you chose to allow the two 14-year-old girls to stay in your bed that night, correct. A. I let them sleep in my bedroom because if they don't know the house, they've never been to the house, I thought they would feel safe sleeping in the same bed together while I slept on the couch. Q. Couldn't they sleep in the same bed together in the spare room. A. Well, if something went missing I would have obviously got - me and my housemate would have had an argument about it and I don't know the girls regularly outside of the house, so if they had sticky fingers, I didn't want anything getting taken from the house. Q. Why would you be concerned about the girls stealing from you. A. I had a good relationship with my housemate, so. Q. Why not let them both sleep in the lounge room, it's an open common area. A. I don't know. Q. Now, you took the two underage girls to your bedroom to have sex with them, didn't you. A. No. HIS HONOUR Q. Apart from a bed in the third bedroom, what else was in that room. A. Obviously these are new photos. There was actually - that room was actually full of other stuff I believe. Q. What does that mean. A. So at the moment, as I can see on photo 7, there was actually - there's things in there but there's things in it that's actually been taken out, because that whole bed, I believe it was covered. Q. Sorry, say that again. A. I believe the bed was covered with all like furniture and other stuff on it. So obviously the house has been changed around since I haven't been there. 198 As to the New Year’s Eve conversation, the accused’s evidence in cross examination was as follows: -- 36 of 69 -- [2024] SADC 73 35 Q. You had a phone conversation with [ES] New Year's Eve. A. Correct. Q. And you initiated that phone call, you started it, you called her. A. Correct. Q. You got her number from someone else. A. Correct. Q. And the reason you called her was because of an assault that had occurred on you. A. Correct. Q. In that conversation did you tell [ES] to tell the police that [DO] was lying to them. A. Don't recall. Q. And that [DO] was just upset with you because you hadn't given her a lift. A. No. HIS HONOUR Q. Why didn't you contact [ES] via her Snapchat on New Year's Eve. A. When these - when I get - when I had been bet [sic] up by the mum I had blocked all channels to talk to any of the girls - I had blocked any communications at the time because of the circumstances of what had just occurred with me at the house, I just didn't want to have any contact with any of the people at all. Q. So that's why you had to get her number from someone else. A. Yes, correct. XXN Q. What were you hoping to achieve by making that phone call to [ES]. A. Don't recall. Q. Why call her. A. Don't recall. 199 In re-examination, the prospect of offering the spare bedroom to the complainants to sleep in was revisited: Q. There's bedroom 3 at the time that the photographer's taken the photograph. Now I just want to ask you some questions, you were asked about bedroom 3 and why you didn't put the girls or offer bedroom 3 up for the girls to sleep in. Can you tell us, I appreciate what we see in the photograph, but back on the morning of 8 November, can you tell his Honour what precisely was in that room. -- 37 of 69 -- [2024] SADC 73 36 A. That they would have had a chest of drawers that were on the bed, there was - would have been bunch of clothes baskets, it was pretty much a spare room. The housemate and the son had a massive argument so some of his stuff was actually stored in that room. Q. So your housemate's son's belongings. A. Yes. Q. Were also stored in bedroom 3. A. Yes. Q. You said some drawers were on that bed that night. A. There were some drawers that were on that bed. Q. Do we see the drawers in any of these photos. A. No. Application to amend 200 At the conclusion of the defence case and before final addresses commenced, the prosecution brought an application to amend the particulars of count 1 so as to allege the commission of the offence between 1 July 2020 and 8 November 2020. The basis of the application was the common evidence of ES and the accused that the football season in 2020 finished well before October / November, which was the time frame ES had originally nominated in her prescribed interview for the commission of count 1. 201 The application was, in this respect, said to be responsive to the way the evidence had unfolded. 202 Ms Luu, counsel for the accused, opposed the application. She argued that, brought at such a late stage of proceedings, the application, if allowed, occasioned unfairness and prejudice to the accused in that he had come to meet a case, and made forensic decisions, on the basis that count 1 was alleged to have occurred in October or November 2020. Ms Luu argued further that there was no evidence that the football season had started by 1 July 2020 having regard to the unusual global circumstances prevailing in that year. This was said to further prejudice the accused in that, because of the lateness of the application, he had lost the opportunity to deal with an allegation that contemplated the commission of count 1 as early as 1 July and at a time when the football season was on foot. 203 Applications to amend a charge at such a late stage of a prosecution should be made sparingly. It is fundamental to the adversarial nature of the criminal trial process and the attribution of the burden of proof, that an accused is entitled to prepare for and conduct his or her defence on the basis of the charges as formulated at the commencement of trial. -- 38 of 69 -- [2024] SADC 73 37 204 I pause here to note that the difficulty with the dates particularised in count 1 had become manifest by the conclusion of ES’ evidence but no application to amend was made until the conclusion of all of the evidence. In many cases, a delay in bringing an application to amend until after an accused has exercised his or her right to give or not give evidence may be a powerful consideration against allowing an amendment. 205 However, in the circumstances of this case, where the accused’s defence involves a complete denial of the act the subject of count 1, irrespective of when it is alleged to have occurred, the proposed amendment could not realistically have occasioned any material unfairness or prejudice to the accused in the presentation of his defence. His case was the same irrespective of whether count 1 was said to have occurred on 1 July 2020 or 30 October 2020. Nor did the amendment have the effect of changing the substance of the offence with which the accused was charged, or exposing him to a more serious charge. Different considerations may have prevailed had the effect of the amendment been to substitute a charge against s 49(3) of the Criminal Law Consolidation Act with a charge against s 49(1) of the Criminal Law Consolidation Act. 206 For these reasons, I granted the application to amend the particulars of count 1. Arguments of the parties 207 In her final address for the prosecution, Ms Demertzis submitted that the strength of the prosecution case essentially lay in the similarities and dissimilarities in the accounts of ES and DO. She said that the fact that both complainants described counts 2 and 3 consistently was strongly probative of the commission of those acts as alleged and that the variations in the versions ES and DO gave and, in particular, the fact that ES did not claim to see the commission of count 4 as against DO, was cogent evidence that countermanded the possibility of collusion or contamination as an explanation for the allegations. 208 Ms Demertzis argued that DO was an impressive and forthright witness. She acknowledged that there were some inconsistencies between DO’s evidence and her interview with police and some new details that emerged in the course of DO’s evidence, but Ms Demertzis submitted that these changes in DO’s account did not materially undermine her credibility or reliability. 209 With reference to DO’s evidence that the accused and ES had sex in a ‘doggie style’ position – which was not something she had previously mentioned to Detective Casey and which was contrary to ES’ evidence – Ms Demertzis contended that the change in DO’s position was understandable in light of the nature of the event being recounted, particularly having regard to what was said to be DO’s reluctance to watch what was occurring at the time. Ms Demertzis contended that there was nothing particularly significant in the fact that ES and DO remembered the progression of sexual intercourse differently. Ms Demertzis said further that as this was not something that ES described, it could not be said -- 39 of 69 -- [2024] SADC 73 38 that this was an evolution in detail reflective of collusion or contamination or which was otherwise designed to support ES’ account in any way. 210 As to the suggestion put to DO in cross examination that, in effect, she has a tendency to make false complaints of sexual assault, Ms Demertzis pointed to the reasons given by DO as to why she chose not to pursue a complaint in relation to her ex-boyfriend on the one hand and why she made a complaint about the accused on the other. Ms Demertzis said DO’s evidence on this topic undermined any suggestion that she makes up allegations of sexual assault when it suits her interests. 211 Next, Ms Demertzis submitted that DO was transparent about post incident conversations with ES, which also spoke against the possibility of collusion. Ms Demertzis said that the conversations that did take place, according to DO, were the very sort of conversations that might be expected to take place between two teenage girls in the aftermath of an experience of the kind they had described. 212 As to ES, Ms Demertzis acknowledged her apparent reluctance to participate in an interview with police in the first place, demonstrated by a number of missed appointments with Detective Casey, and her general reticence in discussing details of the incident and concern about having drawn her friend into these events. These features of ES’ evidence, Ms Demertzis argued, answered any suggestion of collusion or concoction and so too did ES’ remark in her interview that she did not think the accused should get in trouble on account of the sex that took place at Hope Valley because she considered it to be consensual. 213 Ms Demertzis submitted that ES was also candid about conversations she had with DO after the events of 8 November 2020. 214 As noted earlier, Ms Demertzis relied on the differences in ES’ version of events and, in particular, the fact that she maintained in her interview with police and her supplementary evidence that she did not see what happened between DO and the accused, as a positive reflection of ES’ credibility. 215 As to the accused, Ms Demertzis submitted that I should reject his denials as not reasonably possibly true. Ms Demertzis argued that the frequency of the accused answering questions with ‘I don’t recall’ indicated either a genuinely limited memory of these events so as to render his evidence unreliable or a deliberate evasiveness so as to deprive his denials of any credibility. Ms Demertzis pointed in particular to the unsatisfactory evidence she contended the accused gave about his discussion with MZ concerning drug use by ES. She further argued that the accused’s evidence about why he allowed the complainants to sleep in his bedroom was implausible. 216 Ms Luu commenced her address with the proposition that the prosecution had failed to prove its case beyond reasonable doubt. -- 40 of 69 -- [2024] SADC 73 39 217 Ms Luu first addressed the issue of collusion and contamination by reference to the chronology of known discussions between ES and DO and other relevant events. Ms Luu pointed out that: 1. In the day or days following 8 November 2020, DO complained to ES about count 4 and there was a discussion between them about the details of what allegedly took place on 8 November 2020. ES also made a disclosure to DO about count 1. 2. Between Christmas and New Year’s Eve 2020, MZ reported the matter to the police. 3. On New Year’s Eve, the accused told ES about events involving her mother and his knowledge of the allegations being made against him. 4. On 21 January 2021, a police officer was assigned to investigate the allegations. 5. On 9 February 2021, DO spoke with Detective Casey and was warned at the conclusion of the interview against talking to others about the detail. 6. In the interim, attempts were being made by police to speak with ES but they were unsuccessful. 7. At some unidentified time, DO told ES that the police would want detail from her. 8. On 17 March 2021, ES participated in a prescribed interview with police. 218 As I understand it, the point being made by Ms Luu was that between 8 November 2020 and early 2021 when DO and ES spoke with the police, there was ample opportunity for DO and ES to have ‘got their heads together’ and that the evidence and chronology shows that ES and DO were in fact discussing the allegations with each other and, it seems, DO must have discussed the allegations with MZ. 219 Ms Luu argued that ES’ reluctance to attend for an interview with police was explained by her not wanting to lie to police to support her friend – DO. Ms Luu submitted that DO breached the instruction given to her by Detective Casey not to disclose details of her discussion with the police by talking to ES and that the only reason for DO to do so was so that they could ‘get their stories straight’. Ms Luu relied in this respect on a passage in ES’ interview with Detective Casey in which she said: Like I don’t remember everything that happened. That’s that’s why I was really scared of coming here, ‘cos [DO] told me you gotta give detail for everything. And I was like, I don’t know every detail for everything like, I forget all the details. I don’t remember. All I remember is like, the main part that happened in that one time. -- 41 of 69 -- [2024] SADC 73 40 220 Ms Luu contended that this passage was to be read in conjunction with DO’s evidence on this topic, which I set out again for convenience: Q. Did you tell [ES] the details of what you told Detective Casey. A. What, sorry, what do you mean like? Q. Did you speak to [ES] about what you had told police had happened that night. A. Well, yeah, because it's the situation, yeah, me and [ES] have gone over the situation, so yeah. Maybe not with all of the exact details but yeah, we had an idea of the situation as we spoke about it. HIS HONOUR Q. I think what Ms Luu is asking you is after you spoke to Officer Casey. A. Yeah. Q. Did you tell [ES] 'This is what I've said to Officer Casey'. A. No. Q. And then explained it to her. A. No, I would have just - I would have said to [ES] - I just said like - I just told her - I explained the situation of what happened with us. Q. What do you mean by that, sorry. A. So like - I would have like - like telling like Ms Casey, telling Amanda, like just like the details of what happened, so like how we got picked up by him, how we got to the house, going into the house, what happened inside the bed and then leaving, so all those details along the way. 221 In cross examination, ES denied that DO told her she had reported the matter to the police; denied that DO told her the police would want a lot of detail from her; and denied that DO provided her with details of what DO told the police. She said further that she could not remember telling Detective Casey that DO had told her police would want detail from her. 222 Ms Luu submitted that these passages in the evidence demonstrate that DO and ES had discussed how to approach an interview with the police and what was likely to be asked of ES and that ES’ denials on this topic are of considerable concern. 223 I pause here to make two observations about the first aspect of this submission. First, it may be thought unlikely that if DO and ES had colluded to tell a false story against the accused that ES would have volunteered to Detective Casey that DO had told her she had to ‘give detail for everything’. Secondly, there remains some ambiguity about what exactly DO said to ES about the content of her interview with police. The passage of the interview on which Ms Luu relied -- 42 of 69 -- [2024] SADC 73 41 does not rise as high as demonstrating that DO in fact told ES what she had described to Detective Casey during her interview. To the contrary, ES said only that DO told her she would have to provide detail to the police – not what detail to provide to police or what detail had been provided. On the face of the conversation as recounted by ES, it is difficult to conclude that DO had told her what was likely to be asked of her or that there had been a discussion as to how to approach the interview. ES had simply been put on notice that she would be required to provide detail. Equally, it is not altogether clear whether DO’s final answer in cross examination on this topic is to be understood as a summary by her of what she told ES she had said to Detective Casey or a summary of what she had told Detective Casey. Nonetheless, despite ES’ denials in cross examination, her far more contemporaneous statement to police makes good the contention that DO had in fact spoken to her about DO’s interview with police at some level, notwithstanding the instruction that DO had been given. However, the evidence does not permit of a finding as to exactly what that conversation involved. 224 Ms Luu submitted that ES’ denials of a discussion with DO about speaking with the police gives rise to an obvious conflict in the evidence about post incident discussions and reflects poorly on the credibility and reliability of both complainants. 225 Ms Luu submitted that this aspect of the evidence needed to be analysed mindful of what both ES and DO said about their post alleged offending conversations. It was common ground, Ms Luu said, that the complainants had in fact spoken with each other about the events of 8 November 2020. Ms Luu argued that whilst it may be difficult to discern with precision exactly what was discussed, the evidence is clear that there were detailed discussions, which gives rise to the spectre of collusion or, at the very least, contamination as between the complainants. Ms Luu contended that the fact the complainants had discussed the events in the accused’s bedroom deprives the argument that the similarities in their accounts are reflective of a credible and reliable body of evidence of any force. To the contrary, Ms Luu submitted that it is possible the similarities in the complainant’s accounts are the product of collusion or contamination. 226 Ms Luu next addressed what she submitted were issues with ES’ memory on account of her use of MDMA and her ADHD. Ms Luu contrasted ES’ comments during her prescribed interview on these topics with what she suggested were ES’ attempts during her evidence to walk back or resile from the concessions she had earlier made. 227 Ms Luu submitted that both ES and DO had been unable to recall matters of significance in the course of their evidence, which was also to the detriment of their reliability. 228 Ms Luu then identified what she contended were inconsistencies both within the accounts of DO and ES and as between their accounts. Ms Luu supplied a schedule setting out all of the inconsistencies upon which she relied and which I -- 43 of 69 -- [2024] SADC 73 42 have reviewed. I will mention, in an abbreviated form, some of the inconsistencies that Ms Luu referenced but I have had regard to all of the matters set out in the schedule in considering my verdicts: 1. In her prescribed interview, ES said count 1 occurred on a Saturday after the seniors played football at the Club; that it was ‘a few weeks before’ counts 2-4 and that it took place in October or November 2020. In cross examination, she said it was perhaps a month or two before counts 2-4 but when she was confronted with the suggestion that the football season ended early in 2020, she remarked that she ‘must have got the month wrong’. This, Ms Luu said, was a substantial and opportunistic change in ES’ evidence to accommodate what she realised was the incompatibility between her account of count 1 taking place after a football game but in October or November. 2. Next, Ms Luu pointed to ES’ evidence about how the accused came to pick her up on the occasion of count 1. ES told the police that she and the accused had been messaging after football and that when she was walking home, the accused asked her if she wanted to go for a drive. Later in her interview, ES told the police she had been at the Club all day with C; had played netball; then returned to the Club but discovered her phone was dying and she had no internet and the accused asked her if she wanted to go for a drive. In cross examination however, ES said that the accused had been playing football at the Club; they had spoken over Snapchat and organised for the accused to pick ES up; that she had used someone’s internet at the Club to communicate with the accused. 3. Ms Luu highlighted that neither complainant had told police during their interview that they had been driving around with other males before being picked up by the accused on 8 November 2020. 4. ES told the police that the accused had rung her mother to see that it was acceptable for the complainants to stay at his house. In cross examination, she said that she understood there had been a conversation between the accused and her mother based on what the accused had told her. As I understand the point Ms Luu was making, ES had initially given the impression that she was present for or directly observed the accused ringing her mother, whereas her evidence in cross examination was to the effect that this was something the accused had simply told her about. 5. Ms Luu juxtaposed DO and ES’ evidence about what was allegedly said by the accused in the bedroom. DO said the accused asked the complainants if they had ‘daddy issues’; if they wanted to have a ‘threesome’ and inquired ‘who’s going to fuck me first’. In her interview with police, ES said the accused mentioned a threesome and told the complainants not to be ‘frigid’, but in cross examination, she said only that the word ‘frigid’ was used. -- 44 of 69 -- [2024] SADC 73 43 6. Ms Luu emphasised DO’s evidence that after the accused and ES had sex with ES on top of him, they moved into a ‘doggie style’ position, which DO had not mentioned to police during her interview. It will be recalled that ES did not give evidence about engaging in sex with the accused in this position. 7. As to DO’s evidence about digital penetration, Ms Luu contrasted DO’s comment to the police that the accused was ‘trying to finger’ her but could not because she was moving away, with her evidence that the accused could not ‘fully get up there’ and penetrated her ‘a little bit’. The import of the cross examination was to suggest that DO had not alleged actual digital penetration when speaking with police. It will be recalled that it was an agreed fact that DO told Detective Casey the accused ‘…was trying to finger me. He couldn’t do it though, because I was, I was like moving so in a way that he couldn’t – because his arm couldn’t reach like that’. To my mind, it is not clear whether there is in fact any inconsistency in DO’s account on this topic having regard to the way in which DO expressed herself when speaking with police, but if there is in fact an inconsistency, I consider that in substance, what DO was explaining to Detective Casey and to me during her evidence was essentially the same: that the accused was attempting to digitally penetrate her but was unable to achieve any significant degree of penetration because of the way DO was positioning her body. 8. Ms Luu also highlighted the inconsistency between DO and ES on the topic of ejaculation: DO gave evidence that she thought the accused ejaculated; ES said the accused did not ejaculate. 9. DO gave evidence that after having sex with ES, the accused left the bedroom for a period of time, during which DO said to ES ‘please don’t like leave me because he’s going to come back and he’s going to try and do it with me’ and ‘can you at least stay on the bed with me’. DO said that ES then got down on the floor and went to sleep. Contrastingly, in her interview with police DO had not mentioned the accused leaving the bedroom after sex with ES and had said that after sex ES had ‘laid down on the other side, she faced the other way and just went to sleep’. ES did not mention the accused leaving the bedroom after sex and said that she went to sleep on the bed next to the accused. Ms Luu submitted that DO’s evidence was inconsistent in three respects: first, because she had not told police about the accused leaving the bedroom; secondly, because she had not told police about any conversation with ES after the accused left the bedroom; and thirdly, because she had told police that ES had laid down on the bed and gone to sleep after sex whereas her evidence was that ES got down on the floor and went to sleep after sex. Whilst I accept the first two inconsistencies upon which Ms Luu relied, I do not consider the third proposition is made out having regard to the ambiguity in DO’s initial -- 45 of 69 -- [2024] SADC 73 44 description to police that ES ‘laid down on the other side’, which could be an infelicitous reference to ES laying down on the floor or the bed. 10. As to drug use, Ms Luu pointed out that DO gave evidence that she and ES took drugs like MDMA when in High School, whereas ES’ evidence was that she did not think she had consumed MDMA with DO. 11. Ms Luu then addressed the post incident conversations between the complainants and noted the following: (a) It was an agreed fact that the first person to whom DO complained about the accused’s alleged conduct was her mother. (b) However, DO gave evidence that in the day or days after the incident, she and ES had conversations, including a detailed conversation in which DO told ES ‘he tried to fuckin’ rape me. He tried to put his dick inside of me…’. ES gave evidence that DO had told her what had happened when ES was asleep during a conversation they had by a creek near ES’ house. (c) DO said she did not remember telling ES that police would like her to provide as much detail as possible about what happened. ES told Detective Casey that DO had told her ‘you gotta give detail for everything’. However, in cross examination, ES said that DO did not tell her the police would want to detail from her and she denied that DO in fact gave her details of what DO had said to the police. 229 Whilst Ms Luu acknowledged that some of the inconsistencies upon which she relied were peripheral, others, she submitted, were central to the matters in dispute and in any event, the cumulative effect of the inconsistencies was said to be such that I ought to have concerns about the credibility and reliability of DO and ES. 230 The inconsistencies, Ms Luu submitted, needed to be examined in the context of what she contended were motives for both DO and ES to lie. As to DO, Ms Luu relied upon her ‘history of complaints to police’ about being sexually assaulted. As I have earlier noted, there were agreed facts that DO had told Detective Casey that in October 2020 she was sexually assaulted by a male and that she told police in January 2023 that she had been forced to have sex with her ex-partner. Ms Luu argued that DO had a tendency to make false complaints about being the victim of sexual assault when confronted with trouble. Ms Luu did not advance any submission as to what ‘trouble’ DO might have been attempting to avoid by fabricating a complaint of sexual assault against the accused. 231 As to ES, Ms Luu put that her close friendship at the time with DO; her belief that the accused had told her mother about consuming MDMA and sneaking a boy into the house; and her unrequited romantic interest in the accused, all offered motives for ES to lie. -- 46 of 69 -- [2024] SADC 73 45 232 Ms Luu also argued that the accused’s reluctance to pick ES up on the night of 8 November 2020 was inconsistent with the idea that he had later engaged in predatory and opportunistic sexual misconduct with the complainants. Ms Luu submitted that the choice the accused ultimately made to pick ES up was consistent with his and ES’ view of their relationship as being an ‘older brother / younger sister’ type relationship. 233 Ms Luu contended that the recording of DO and ES in the accused’s bedroom just a week after the events the subject of counts 2-4, and in particular the manner in which the complainants were seen to behave during that recording, belied any suggestion that the accused had engaged in sexual misconduct with them a week or so earlier. 234 As to the accused’s evidence, Ms Luu submitted that his limited recollection about certain matters was in fact a testament to the candour of his account. She illustrated this proposition with reference to the suggestion of a telephone discussion with ES’ mother on the night of counts 2-4 about the complainants staying at his house, which he said he could not recall. Equally, the accused said he was unable to recall MZ’s reaction to his disclosure to her of ES’ use of MDMA. Ms Luu argued that these two topics ostensibly provided an opportunity for the accused to embellish his evidence and portray, for example, MZ’s reaction to the MDMA disclosure in a manner likely to further the accused’s hypothesis on motive to lie, but the accused refrained from doing so. Ms Luu submitted that such features of the accused’s evidence meant I would be unable to reject his account as not reasonably possibly true. 235 Finally, Ms Luu submitted that the accused was at a forensic disadvantage in defending the allegations on account of the passage of time between the incidents the subject of the charges and trial. Ms Luu said that had an investigation into these events commenced in a more timely way, people at the Club on the occasion the subject of count 1 might have been able to give evidence about any observed interactions between ES and the accused or the other matters surrounding count 1 about which ES spoke to. Ms Luu said further that had an investigation commenced closer in time to count 1, the date or date range within which that offence was allegedly committed may have been discernible with greater precision so as to present the accused with the avenue of adducing evidence demonstrating he did not have the opportunity to commit the offence as alleged. Moreover, forensic evidence might have been available. 236 As to counts 2 to 4, Ms Luu argued that the ‘Afghan boys’ who were driving around with ES and DO on the night of 7-8 November 2020 might have been prospective witnesses and, similarly, the accused’s house mate may have been a potential witness. As with count 1, forensic investigations may have been practicable. Further, DO’s mobile phone extraction may have been available for interrogation. As to this latter point however, Detective Casey gave unchallenged evidence that she had reviewed DO’s mobile phone extraction for text message communications relevant to these proceedings and had not identified any. -- 47 of 69 -- [2024] SADC 73 46 237 Ms Luu submitted that the accused’s capacity to challenge the prosecution case by marshalling evidence in his defence or instructing his counsel had also been compromised by the delay. 238 Whilst s 34CB of the Evidence Act has no application to trials before a judge sitting without a jury,18 the principles enshrined in s 34CB emanate from the common law’s recognition of the impact of delay on an accused’s ability to test and challenge a prosecution case and to marshal evidence relevant to his or her defence of a criminal charge. It will be appropriate for a judge sitting without a jury to bring to bear these principles in evaluating whether the prosecution has met its burden of proof whenever it is necessary to avoid a perceptible risk of a miscarriage of justice. 239 In the circumstances of this case, the delay between the allegations and the trial was not particularly lengthy and the investigation into the events the subject of the trial commenced in early 2021 – just a few months after the alleged commission of counts 2-4. Of course, given the imprecision in the evidence as to when count 1 occurred, it is not possible to determine precisely how long the delay was between the commencement of the investigation and the alleged commission of that offence. 240 Nonetheless, I have considered the impact of the delay between the alleged commission of the unlawful sexual acts and the trial of the charges, and the attendant disadvantage it has occasioned the accused in deciding whether I am satisfied beyond reasonable doubt of the accused’s guilt. Cross admissibility 241 In the course of her final address, Ms Demertzis invited me to treat the evidence of counts 1, 2 and 3 as internally cross admissible and cross admissible in support of count 4. Ms Luu did not dispute that the evidence of counts 1, 2 and 3 was cross admissible to demonstrate a sexual interest in ES that the accused was prepared to act upon, but she challenged the admissibility of that evidence in support of count 4. 242 Returning to the prosecution’s argument, Ms Demertzis submitted that the conduct the subject of counts 1, 2 and 3 was, if proved, strongly probative of the accused having a sexual interest both in ES and in ‘young girls’ more generally, and a willingness to act on that interest when the opportunity arose. Ms Demertzis did not point to any particular features of the accused’s alleged interactions with ES as elevating the probative force of the evidence to the extent required by s 34P(2)(b) of the Evidence Act when considering an allegation relating to DO. Rather, she argued that if I was satisfied the accused had engaged in sexual activity with one 14 year old girl that made it more likely that he engaged in sexual activity 18 JGS v The Queen [2020] SASCFC 48, [146]; R v T, WA (2014) 118 SASR 382, [21]-[22]; R v R, PA [2019] SASCFC 19, [85]. -- 48 of 69 -- [2024] SADC 73 47 with another 14 year old girl with whom he had a completely different – indeed non-existent – relationship. 243 The fact in issue to which evidence of the accused’s sexual attraction to ES might go was therefore said to be the commission of count 4 as against DO. In Hughes v The Queen (2017) 263 CLR 338 at [40], the High Court explained the juridical theory behind the admission of evidence of this kind in multiple complainant sex trials: In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. 244 The Court went on to observe that it is not necessary that propensity or tendency evidence, by itself, would make more likely the occurrence of the facts that make up the elements of the offence charged (at [40]): It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible. 245 The principles governing the determination of admissibility were then drawn together in the following passage at [41]: The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged. 246 The two stage approach set out by the Court in the above extract first requires identification of the propensity said to be revealed by the evidence and the extent to which it is demonstrated by the evidence. The second step is to examine whether the propensity so demonstrated supports proof of a fact in issue. 247 Returning to the present case, the relevant propensity or disposition of the accused said to be demonstrated by the alleged commission of counts 1, 2 and 3 is -- 49 of 69 -- [2024] SADC 73 48 a predilection towards teenage girls. The argument advanced by Ms Demertzis was that, if established, the accused’s sexual interaction with ES strongly revealed a sexual interest in teenage girls upon which he was prepared to act when the opportunity arose. Accordingly, as the argument goes, when a further opportunity arose to engage in sexual activity with a different teenage girl, the accused was willing to act on his interest thereby affecting the likelihood that the accused engaged in sex with DO. 248 In the recent decision of TL v The King [2022] HCA 35 at [29], and in the context of s 97 of the Uniform Evidence Acts, the High Court observed that: Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of ‘significant probative value’. That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the fact or facts in issue. The specificity of the tendency has a direct impact on the strength of the inferential mode of reasoning. 249 As noted, Ms Luu conceded that the evidence of counts 1, 2 and 3 was cross admissible in respect of each of those offences in that, if I found the accused had engaged in sex with ES on the occasion the subject of count 1 for example, that would be evidence from which I could find that the accused had a sexual interest in ES that he was prepared to act upon, making it more likely that the accused acted on the sexual interest on the occasion the subject of, for example, counts 2 and 3. However, Ms Luu contested the cross admissibility of the evidence of counts 1, 2 and 3 in support of count 4. 250 To my mind, the prosecution’s argument overlooks that, on the assumption the accused engaged in sexual intercourse with ES on two occasions, the sexual interest that may have been revealed was a sexual interest in ES and not a sexual interest in teenage girls more generally. Unlike in Hughes where the accused’s tendency was revealed by a substantial body of evidence to be a broad, indeed pervasive, one which he would seek to give effect to opportunistically and repeatedly, evidence that the accused engaged in one or two prior sexual interactions with ES is not strongly demonstrative of a sexual interest in all teenage girls so as to make it strongly probative of the commission of a sexual offence against another teenage girl whom the accused did not know. I am not satisfied that the evidence of counts 1, 2 and 3 is cross admissible in support of count 4 for the purpose advanced by the prosecution. 251 Obviously enough however, both ES and DO are ‘eye-witnesses’ to conduct involving each other (noting ES does not claim to have observed the alleged commission of count 4) in the accused’s bedroom on the night of 8 November 2020. To the extent that their evidence about events in the bedroom is consistent, the evidence of one might offer some support for the evidence of the other. To the extent that their evidence about events in the bedroom diverges, those divergences or inconsistencies may undermine one or both of their accounts. -- 50 of 69 -- [2024] SADC 73 49 252 In respect of the non-contentious use of evidence going to counts 1, 2 and 3 in respect of each other, it is relevant to observe that the conduct which is said to demonstrate the existence of and preparedness to act on a propensity towards ES is evidence of the charged acts in relation to ES. In The Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15, the High Court held that it is not necessary in such a case for the conduct said to be demonstrative of a relevant propensity to be proved beyond reasonable doubt before it can form part of the propensity or tendency ‘matrix’. This is because, whilst the elements of an offence must be proved beyond reasonable doubt, proof of a propensity or tendency involves proof of an intermediate fact which itself serves as circumstantial support for proof beyond reasonable doubt of charged conduct. However, that does not mean that where charged conduct is said to form part of a body of evidence that demonstrates a propensity or tendency, it is necessary for that conduct to be proved beyond reasonable doubt before it can be relied upon as part of the propensity or tendency matrix. It is not necessary therefore that a tribunal of fact (whether judge alone or jury) be directed to employ a sequential approach to proof of a tendency dependant, in part, on charged conduct in a manner that would require satisfaction beyond reasonable doubt of the charged conduct before it could be factored into a finding concerning the existence and extent of a tendency. 253 Endorsing the comments of the New South Wales Court of Criminal Appeal in JS v The Queen [2022] NSWCCA 145 at [43], the High Court held in Benjamin Roder at [26] and [27] that such an approach does not involve any dilution of the burden of proof that attaches to the elements of an offence: In JS v The Queen, the New South Wales Court of Criminal Appeal recognised the potential for such directions to undermine the necessity for proof of each charge beyond reasonable doubt but concluded that that concern should be addressed by the careful formulation of directions. Basten A-JA (with whom Hamill and Dhanji JJ agreed) addressed a complaint about circular reasoning and how the directions should be formulated as follows: “Insofar as the applicant complained that the reasoning [which the trial judge directed the jury to undertake] was 'incoherent' [or circular], this was premised on the assumption that the Crown, in a linear process, sought to prove the commission of an offence (at a standard of proof less than beyond reasonable doubt), and then relied on that finding to prove the tendency, and then relied on the tendency to prove the offence. However, this does not accurately represent the reasoning process involved. It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence ... relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency.” (emphasis added) Two matters should be noted about this passage. First, it correctly identifies the alleged tendency as an intermediate fact that is to be proved in its own right and then deployed in aid of the proof of each charge. For a tribunal of fact to find that an alleged tendency has -- 51 of 69 -- [2024] SADC 73 50 been proved to a lesser standard by relying on, inter alia, direct evidence of charged acts, and then deploying that tendency in determining whether the charged acts have been proved beyond reasonable doubt, does not involve circular or incoherent reasoning. Instead, it simply means that the jury may consider the same evidence “at different stages of its deliberations with a different onus of proof and for a different purpose”. Second, as noted, his Honour accepted that there was a risk of undermining the jury's understanding of the necessity for proof of the elements of the charge beyond reasonable doubt but identified that one means of minimising that risk was to avoid giving a tendency direction that invited the jury to make findings as to the conduct relied on in proof of the charge. Instead, the direction should identify the evidence said to support the alleged tendency and invite the jury to consider whether that tendency has been established. Otherwise, in JS, Basten A-JA noted that the balance of the summing up given to the jury meant that there was “no risk ... that the onus and standard of proof were not understood and properly applied”. 254 Applied to the circumstances of this case, the reasons of the High Court suggest that I would consider the combined effect of the evidence going to counts 1, 2 and 3 in deciding whether I am satisfied that the accused had a sexual interest in ES that he was prepared to act upon. It is not necessary for me to make any particular findings that the accused engaged in sex with ES beyond reasonable doubt before reaching a conclusion that the accused had a sexual interest in ES that he was prepared to act upon; however, that is not to gainsay that I must nonetheless be satisfied that the evidence helps demonstrate the relevant propensity and that necessarily requires me to be satisfied that the accused had a sexual interaction with ES on, for example, the occasion of count 1. Absent that state of satisfaction, nothing that occurred in relation to count 1 could rationally help to inform me as to the existence of a propensity or tendency. If I am so satisfied, I would then be entitled to have regard to the existence and extent of the propensity when considering whether the conduct the subject of counts 1, 2 and 3 had been proved beyond reasonable doubt. Complaint 255 I deal with a discrete topic, namely, evidence of initial complaint by DO. 256 Ms Luu argued that DO’s evidence of discussions she had with ES on 8 November 2020 and upon which the prosecution rely as initial complaint is problematic for a number of reasons. For one, DO’s evidence that the first person she spoke to about count 4 was ES is inconsistent with having told the police the first person to whom she complained was her mother. Secondly, it was said the progression in DO’s evidence about the extent of her conversations with ES in the days following the incident raises a question as to the reliability of this aspect of her evidence. Ms Luu submitted that there was initially a lack of precision in DO’s evidence about what she had said to ES, with her ultimate position being that she told ES ‘he tried to fuckin rape me. He tried to put his dick inside of me’. Thirdly, Ms Luu submitted that the complaint did not tend to show how the allegation that is count 4 first came to light because ES was present for the incident. Finally, DO’s evidence on this topic was not supported by ES. -- 52 of 69 -- [2024] SADC 73 51 257 I accept that there was a lack of clarity initially in DO’s evidence about what she told ES in the aftermath of 8 November 2020. However, I accept DO’s evidence that she made a complaint to ES that is referable to count 4 and that ES was the first person to whom she complained. It seems to me to be far more logical that the first disclosure by DO of the conduct the subject of count 4 would have been to ES given the circumstances in which they came to be dropped off by the accused. I accept in this respect that there is an inconsistency between DO’s evidence and her interview with police that reflects at least on her reliability. 258 Equally, I reject Ms Luu’s third contention about the complaint evidence. The disclosure to ES does in fact tend to show how the allegation that is count 4 came to light. On the prosecution case, ES was asleep at the time count 4 was allegedly committed. 259 Finally, albeit not addressed directly, ES’ comments during her interview with Detective Casey suggest that she was told by DO that the accused had ‘stuck it in DO’, such that there is some commonality in the evidence of DO and ES on the topic of a disclosure by DO about count 4. 260 I find that the making of the complaint and the content of the complaint does show how the allegation that is count 4 first came to light and affords some evidence of consistency of conduct on DO’s behalf. However, in assessing the weight to be afforded to the complaint evidence, I bear in mind that DO told the police that the first person to whom she complained was her mother, which is inconsistent with her evidence before me. 261 I acknowledge that there may be many reasons why DO complained to ES at the time she did and in the terms she did and that, from the defence perspective, the discussions between the complainants about the events of that night may have had the effect of colouring or contaminating their perspectives on the incident more generally. Collusion and contamination 262 Before moving to an individual analysis of the evidence of DO, ES and the accused, I deal with Ms Luu’s submissions about collusion and contamination. I do so now because, self-evidently, if it is a reasonable possibility that the allegations against the accused are the product of a plan concocted between ES and DO to manufacture false allegations against him or conscious or subconscious contamination to such an extent that it is a reasonable possibility the allegations against the accused are simply wrong, my verdicts would have to be not guilty. 263 In examining Ms Luu’s submissions about collusion and contamination, I have holistically evaluated the evidence and the criticisms made of it by Ms Luu, including the various inconsistencies she relies upon both within and as between the complainants’ accounts. -- 53 of 69 -- [2024] SADC 73 52 264 Having done so, I reject Ms Luu’s submission that the allegations against the accused might possibly be the product of collusion between ES and DO or are otherwise explained by conscious or subconscious contamination. 265 Dealing first with collusion, I consider the transparency with which both DO and ES said they had discussed the events of 8 November 2020 to speak against the possibility of collusion. If their objective was to jointly manufacture a series of false allegations against the accused, there would be little logic in candidly acknowledging that they had spoken about the events. In addition, the variations as between the accounts of ES and DO do not reconcile with an agreement between them to create false allegations against the accused. 266 ES has consistently maintained that she was asleep during the alleged commission of count 4, and there are other differences between the complainants’ versions which speak against both collusion and contamination. I have not overlooked the change in ES’ position on where the complainants were dropped by the accused the morning after the ‘sleepover’. She told the police the accused took them to DO’s house whereas her evidence was the accused dropped them at her house, which aligned with DO’s evidence on this topic. However, I do not accept that this change in ES’ account – even viewed together with all of the matters to which reference has been made – bespeaks of a possibility of collusion or conscious or subconscious contamination. 267 There are also subtle and significant differences between the accounts of ES and DO as to, for example, conversations that took place during the car ride back to Para Hills; who put the Magic Mike movie on; whether the accused ejaculated during sex with ES; where ES slept; the accused having sex with ES from behind her; the accused removing the complainants’ underwear; and contact with the accused later on 8 November, which differences might be thought to be more consistent with organic variations in memory as opposed to missteps in a concerted plan to ‘fit up’ the accused with false allegations. 268 I further reject the possibility that DO’s evidence of counts 2 and 3 is the product of conscious or subconscious contamination on account of discussions that she has had with ES. DO’s demeanour during her evidence, including in particular the way in which she became upset when recounting ES performing fellatio on the accused, together with the substance of her evidence and its general cohesiveness satisfy me that I can exclude collusion and contamination as reasonable possibilities. 269 Equally, I reject the possibility that ES’ memory as to the relevant events has been influenced or contaminated by discussions with DO. The fact that ES’ position that she did not see the conduct the subject of count 4 has remained constant, helps me to exclude the possibility of conscious or sub-conscious contamination. -- 54 of 69 -- [2024] SADC 73 53 270 I now turn to consider the credibility and reliability of the evidence of DO, ES and the accused. I will address some of the features of the evidence of these witnesses relied upon by the parties as supporting or undermining their truthfulness and accuracy. I will not deal with every matter raised by counsel but I have had regard to all of the arguments they advanced. 271 In undertaking this analysis I have not looked at the evidence of any witness in isolation other than in accordance with the ruling I have made as to the cross admissibility of evidence of counts 1, 2 and 3 with respect to count 4. Analysis – DO’s evidence 272 I found DO to be a generally impressive witness. She presented as a mature young woman when giving evidence. She answered questions directly and responsively. There was nothing about her demeanour that gave me reservations as to whether she was genuinely endeavouring to tell the truth as she considered it to be. 273 There were however a number of aspects of her evidence that call for careful assessment. 274 As the summary of evidence recounted above demonstrates, DO suggested – for the first time whilst giving evidence – that the accused and ES changed positions whilst having penile vaginal sexual intercourse. This was not something DO had mentioned to Detective Casey during her interview and it is not an allegation about which ES gave evidence. Whilst it is true that the clear impression DO gave was that she was trying ‘not to look’ whilst ES and the accused were having sex, two observations must nonetheless be made: first, the suggestion that ES and the accused engaged in sex in an additional position to that described by ES is not a peripheral inconsistency between the evidence of DO and ES. Nor is it an inconsistency concerned merely with sequence or progression of the activity – DO describes a very different form of sexual activity taking place to ES. Whilst a variation in their evidence about the sequence in which sexual activities occurred would not at all be surprising, it is surprising that DO refers to a form of sex taking place that ES does not allege whatsoever. Secondly, the change in DO’s evidence reflects a not insubstantial variation in her memory from the time she spoke to Detective Casey to the time of giving evidence and there is no real explanation for the variation because the topic was not pursued further in cross examination or re- examination after DO said she could not remember whether she did or did not make this disclosure to Detective Casey. 275 I will return to this matter when addressing ES’ evidence about 8 November 2020. 276 As DO’s interview with Detective Casey is not before me, I do not have any other evidence of the context and detail in which DO described the sexual interaction between ES and the accused at a time much closer to these events. This does make it somewhat difficult to evaluate the significance of this evolution in -- 55 of 69 -- [2024] SADC 73 54 DO’s account, but irrespective of the context, it is an inconsistency of concern insofar as DO’s honesty and accuracy is concerned and it is a substantial inconsistency as between the accounts of ES and DO. 277 As I have previously mentioned, I do not consider that the suggested inconsistency concerning the accused’s attempts to or digital penetration of DO’s vagina to be made out or, if established, to be of any real moment. In my view, the gravamen of what DO said to Detective Casey and in her evidence on this topic is the same: the accused was trying to penetrate her vagina with his finger but was unable to do so to any substantial degree because of the way DO was moving her body. Similarly, I do not consider that there is any inconsistency between what DO said to the police about ES going to sleep on the ‘other side’ and her evidence that ES went to sleep on the floor. Once again, if there is an inconsistency in these two accounts, I do not consider it to be of any substance. There is, however, an inconsistency between DO’s evidence that ES went to sleep on the floor and ES’ evidence that she went to sleep on the bed after the accused had sex with her. Self- evidently they cannot both be correct, but once again, and on the assumption that DO is incorrect, I do not consider this to be of any real moment in terms of my assessment of DO’s credibility. 278 Nor do I consider the failure of DO to mention to police that she and ES were driving around with boys before being collected by the accused or that the first person she complained to was her mother, are omissions or inconsistencies that occasion any material damage to her credibility. Equally, the suggested inconsistency that DO had failed to tell the police about the accused leaving the bedroom after having sex with ES is, to my mind, of little significance. In saying this, I have not looked at any of the inconsistencies in isolation; rather, I have considered the combined effect of the matters upon which Ms Luu relied in evaluating DO’s credibility and reliability. 279 I accept however that, contrary to at least the spirit of the instruction that she was given by Detective Casey, DO did speak with ES about her interview with the police. Based on ES’ interview with police, I find that DO told her that she should expect to have to provide detail about the alleged events but I am unable to make any further finding about what, if anything, DO said to ES by way of recitation of what she had actually told Detective Casey during her interview. Having said this, I do not accept that DO’s disclosure to ES was motivated by mala fides. I consider it was unfortunate and incautious but it was not designed to help ES ‘get her story straight’ with DO’s version of events. 280 I am troubled by the conduct of DO and ES in the recording made at the accused’s house a week after counts 2-4 were allegedly committed. The recording, which I have previously described as showing ES and DO to be in frivolous spirits in the accused’s room, depicts behaviour which is arguably inconsistent with DO’s evidence that she was scared and disgusted by what happened on 8 November. It may be thought somewhat implausible that DO would have voluntarily returned to the accused’s house within a week of being sexually assaulted by the accused in -- 56 of 69 -- [2024] SADC 73 55 the circumstances she alleges. Having said that, it is essential to evaluate DO’s conduct mindful of the fact that she was just 14 years old at the time and that, as she said, she was in a state of disbelief for a period of time after 8 November until she begin processing the events. Nonetheless, I do consider that both the fact of the re-attendance by DO and ES at the accused’s house and, in particular, their demeanour whilst there as depicted on the recording, is inconsistent with their allegations of sexual assault. Motive to lie 281 I address now Ms Luu’s contentions as to motive lie. 282 I reiterate that the defence carry no burden whatsoever in this trial. It is not for the accused to point to, let alone establish, a motive for DO to lie about her allegations against the accused. At all times, the burden of proving the elements of the offences charged to the criminal standard remains immovably fixed on the prosecution. Of course, if I consider it is even a reasonable possibility that DO’s allegations are the product of a story concocted by her as a result of a disposition to make false claims of sexual assault or for any other reason for that matter, the accused must be acquitted. 283 Similarly, if it is a reasonable possibility that ES’ allegations are the result of disdain towards the accused because of what ES thought were his unwarranted and unfair disclosures to her mother about her drug use; or having a boy in the house; or because she had unrequited feelings for the accused; or for any other reason, the accused must be acquitted. It is imperative then that any possible motive for DO or ES to lie about these allegations be carefully considered. 284 If, after giving close attention to any possible motives for either complainant to lie, I reject the suggestion that DO and / or ES have a motive to lie, that conclusion would lend no assistance to the prosecution case. It would not mean that DO and ES in fact have no motive to lie and were necessarily telling the truth and it would not make their evidence more believable or reliable or otherwise enhance the strength of the prosecution case. There can be many reasons why a witness may lie, including a reason or reasons that are simply unknown. It is for the prosecution to satisfy me that both DO and ES are credible and reliable witnesses and that their evidence proves the elements of the offences beyond reasonable doubt. 285 Against this preamble, I reject Ms Luu’s submissions that DO had a motive to fabricate allegations against the accused derived from any predisposition on her part to manufacture false claims of sexual assault. 286 The premise of Ms Luu’s submission is that DO has made false complaints of sexual assault in the past. In support of this submission, Ms Luu relied on the evidence that DO told police that in October 2020 she had been sexually assaulted and the agreed fact that in January 2023 police recorded DO as alleging that -- 57 of 69 -- [2024] SADC 73 56 between early 2021 to late 2022, her ex-boyfriend had forced her to have sex with him multiple times. 287 The vice in the argument is that there is no evidence as to whether these complaints were false. The dispositional chain of reasoning that Ms Luu was endeavouring to set up was that as DO had falsely accused other males of sexually assaulting her in the past to avoid ‘trouble’, it was a reasonable possibility that she had falsely complained of the accused sexually assaulting her to avoid trouble. No submission was put to me about what ‘trouble’ DO might have been seeking to avoid by alleging the accused had sexually assaulted her and / or her friend. Plainly enough, the mere making of prior complaints of sexual assault could not set up the process of reasoning on which Ms Luu relied; the significance of past complaints of sexual assault would necessarily depend on any such complaints having been falsely made. 288 In those circumstances, I reject the submission that it is reasonably possible that DO made up her allegations against the accused for this reason. 289 I will return to the topic of ES’ motive to lie when examining her evidence. Conclusion on DO’s evidence 290 Drawing all of these matters together, and having considered all of the criticisms advanced of DO in combination, I find that DO was a generally credible witness. The inconsistencies in her account to which I have adverted give rise to some concerns about the reliability of aspects of her evidence, and I am, as I have said, particularly troubled by the inconsistency between DO and ES about whether the accused had sex with ES from behind her, but I find that DO was endeavouring to tell me the truth as she knew it to be. I also bear in mind the complaint made by DO to ES, which I consider demonstrates some consistency of conduct in relation to count 4. 291 Of course, this does not dispose of the allegations against the accused19 and I will return shortly to where my findings in relation to DO take the matter. ES 292 I turn then to ES’ evidence. 293 ES presented as a witness in a manner considerably different to DO. As I remarked at the outset of these reasons, ES came across during her evidence as occasionally disinterested and even flippant with some of her responses. I do not say this to be critical of ES – witnesses present in a multitude of different ways when giving evidence having regard to their background, education, life experiences and response to the stress and anxiety of the court room environment. Given the subject matter, ES may also have been apprehensive and embarrassed about giving evidence and being tested on matters of some sensitivity. 19 Pell v The Queen (2020) 268 CLR 123; DES v The Queen [2020] SASCFC 32, [2]. -- 58 of 69 -- [2024] SADC 73 57 Nonetheless, this was a stark feature of ES’ presentation as a witness. However, in the circumstances, I consider it would be incautious to make too much of ES’ demeanour. 294 Turning to the substance of ES’ evidence, it will be seen from the earlier summary that she was generally consistent in her description of the conduct the subject of the charges. Her evidence more generally is however overlaid by some curious features of her description of the nature of her relationship with the accused and inconsistencies both internal to her own evidence and with DO’s evidence. 295 During the course of her evidence, ES initially agreed with the suggestion that her relationship with the accused was something approximating an ‘older brother / younger sister’ relationship and that the accused would help her out with transport from time to time in 2020 because her mother did not have a driver’s licence. Contrastingly, she also suggested that the accused became jealous in respect of the incident in which ES had a boy at her house without her mother’s knowledge. At the end of her cross examination, ES strangely remarked that she never saw the accused as an ‘older brother’ and when it was put to her that she had ‘fancied’ the accused, she responded ‘Yeah, I guess’. The malleability in ES’ description of the nature of her relationship with and attitude towards the accused is difficult to comprehend. 296 I acknowledge that ES denied having taken drugs with DO which was in contrast with DO’s evidence that the two had taken MDMA together ‘once or twice’. I accept DO’s evidence in preference to ES’ on this topic. I consider DO’s admission of using drugs with ES more reliable then ES’ denial that they used drugs together. However, given that, on DO’s evidence, she only took MDMA with ES on one or two occasions, I do not consider that ES’ denial reflects adversely on her credibility. Rather, it is quite plausible that it was a genuine, albeit incorrect, denial given ES was consuming drugs in not insignificant quantities and may simply have overlooked that there were one or two occasions on which she and DO in fact consumed MDMA together. 297 I accept that, as to count 1, it is difficult to reconcile ES’ suggestion that the incident occurred after the accused had played a football match in or around October 2020/November 2020, with her concession in cross examination that the football season ended early in 2020 because of the COVID pandemic. When confronted with this proposition, ES’ response was to say that she ‘must have got the month wrong’ but as Ms Luu pointed out, she had settled on the approximate date of the incident in her interview with police after apparently reviewing a calendar on her phone. ES’ preparedness to adjust her evidence to suit other, objectively known facts, does give me pause when considering the reliability of her evidence as to count 1. ES had also, on a number of occasions in her interview with police, linked the alleged commission of count 1 temporally to the events of 8 November 2020. It is not insignificant then that, in cross examination, ES ‘walked back’ her evidence as to timing when confronted with a suggestion that might be thought to have made her evidence about the circumstances in which -- 59 of 69 -- [2024] SADC 73 58 count 1 occurred difficult to accept. Having said that, it is not altogether surprising that a child of ES’ age might make an error about the timing of an event of the kind she alleged, but I nonetheless consider it to be material to my assessment of her reliability. On the other hand, it did not strike me as demonstrative of conscious dishonesty on ES’ behalf. 298 There were some other variations in ES’ account of count 1. For example, ES told Detective Casey that she had no internet connection available to her when at the Club prior to the alleged commission of count 1, whereas her evidence was that she ‘hotspotted’ internet from another club member. ES also agreed in cross examination that she may have ‘messed…up’ how it was that the accused came to be giving her a lift, having told Detective Casey he was in fact at the Club and asked her if she wanted to go for a drive, whereas her evidence was that they had organised to go for a drive via Snapchat communications. Again, I accept this may reflect on her reliability but I do not consider that this development in her account reflected negatively on her credibility in any material way. 299 As to the events of 8 November 2020, there was a slight tension between ES’ account to police that the accused had spoken to her mum about the complainants’ staying at his house and her evidence in cross examination that this was something the accused had told her about, purportedly by way of recounting a conversation he had with MZ. However, as I said earlier on in these reasons, it was occasionally difficult to discern from ES’ interview whether she was reporting things she had been told or about which she had first knowledge. I am inclined to think that this potential difference between what ES said to the police and her evidence is explained by the imprecision in her language more than anything else. However, even if this was something the accused had told ES about, it strikes me as somewhat puzzling that if the accused had in mind taking advantage sexually of ES upon the return to his house, which would seem to follow from the manner in which events very quickly progressed, he would have either (1) in fact spoken with MZ about ES staying overnight at his house or (2) told ES that he had done so – whether or not true – because in either event, the accused would have been paving the way to discussion between ES and MZ about the ‘sleepover’. I do not consider this to be a significant matter, but it is a small part of the overall plausibility of the allegations. So too is ES’ evidence that she had asked the accused on a number of occasions this particular night to pick her up but he had initially declined to do so. Again, I do not make much of this but there was an apparent lack of eagerness by the accused to pick ES up in circumstances where he must have been assuming that, had he done so, he would have had the opportunity to be alone with her. 300 It will also be remembered that there is a difference between the evidence of ES and DO as to where ES slept after having sex with the accused. ES said she slept on the bed; DO said she slept on the floor. Where ES slept is not in itself a particularly important matter; but what is relevant, to my mind, is that it is yet another topic on which ES and DO are inconsistent, in the same way that they are inconsistent with each other as to whether the accused removed their underwear. -- 60 of 69 -- [2024] SADC 73 59 301 There was, in addition, conflict between ES and DO’s evidence about conversations with the accused during the car ride back to his house. ES had told Detective Casey that during the trip to Para Hills, the accused had interrogated the girls about whether they had slept with the ‘Afghan boys’ they had been with earlier that night and had called ES a ‘slut’. DO did not suggest that any such conversations took place on the trip to Para Hills and in cross examination, ES in fact said she could not remember if the accused had called her a ‘slut’ during the car ride. 302 I mention again the conflict in the evidence of ES and DO about the accused having sex with ES from behind her. This was not a form of sexual activity that ES suggested occurred. ES did not express any uncertainty or ambiguity as to the nature of the sexual activity the accused engaged in with her. I find the conflict in the evidence on this topic troubling. I acknowledge, as I have earlier remarked, that DO said she was essentially trying to distract herself from what was occurring between the accused and ES, but it remains concerning that there is such a significant divergence in the evidence of ES and DO on this point and that DO did not mention this form of sex when she spoke to Detective Casey. Although I generally preferred the evidence of DO to that of ES, on this matter, I am inclined to prefer the evidence of ES that no such sexual activity took place. I consider that both the fact of the inconsistency between ES and DO and the circumstances in which the inconsistency has arisen to be significant to my assessment of DO’s credibility and reliability. 303 I note further the inconsistency between ES’ evidence that the morning after the ‘sleepover’, the accused dropped the complainants at ES’ house and her suggestion to police during her interview that the accused had dropped the complainants at DO’s house. I pause here to observe that what ES said to the police was inconsistent with DO’s evidence however by the time she gave evidence, ES’ position had changed to align with DO. As I have said previously, whilst I reject the possibility of collusion or contamination as accounting for these allegations, the variations in ES’ evidence and the conflicts as between her account and DO’s account on certain topics are material to my assessment of whether the prosecution has proved its case beyond reasonable doubt. 304 I also bear in mind that ES told Detective Casey that she and DO were contacted by the accused later on 8 November after he had dropped them off, and invited them to return to his house. DO did not give evidence of any such invitation on 8 November. ES also told Detective Casey that the accused in fact collected her and DO from a bus stop near ES’ house later that day and told them not to tell anyone about him picking them up. This was not suggested by DO to have taken place. I find it surprising that DO did not mention these post incident events in the course of her evidence. I also consider that the willingness of one or both complainants to spend time in the company of the accused later on 8 November 2020 to be relevant to the plausibility of the allegations of sexual misconduct. -- 61 of 69 -- [2024] SADC 73 60 305 I have earlier discussed the evidence that ES and DO returned to the accused’s house a week after 8 November 2020 at which time ES was recorded doing a back flip on the accused’s bed and wearing articles of clothing belonging to the accused. I adopt without repeating the remarks I made on this topic when addressing DO’s evidence. 306 It will be remembered that in her prescribed interview, ES told Detective Casey that DO had told her that she would need to provide detail to the police. ES denied that DO in fact gave her details of what DO had disclosed to Detective Casey. She also said she could not remember telling Detective Casey that DO had said the police would want detail. Contrastingly, ES was very candid about the conversations she and DO had following 8 November 2020. She said they had discussed ‘everything’ in the day or two after the ‘sleepover’ and that she had told DO that she had previously ‘got with [the accused].’ As I have previously indicated, I find the transparent accounts given by ES and DO as to post incident discussions to exclude any possibility of collusion. However, I do consider that ES’ inability to remember telling Detective Casey that DO had advised her the police would want detail, to reflect on ES’ reliability. 307 As to the New Year’s Eve phone call about which ES gave evidence, I have previously mentioned that the prosecution did not place much reliance on the content of the call. Whilst I find that the accused spoke with ES on New Year’s Eve, as was common ground, I am not satisfied that the accused made anything other than a denial of wrongdoing in the telephone conversation. I note further that ES suggested that the accused asked her to ‘delete all the evidence that [DO] had like the screenshots and like all the videos in his house off her phone’. There was no evidence from DO – or ES for that matter – that the accused was or could have been aware of any photos or recordings that DO had on her phone. 308 I also have regard to MZ’s evidence that at or around the time the allegations were made against the accused, ES would often lie to her mother about where she was. That is perhaps unsurprising given ES’ age at the time and the fact that she was taking MDMA with some regularity. ES may well have sought to distance herself from her mother to facilitate her socialising and drug taking. MZ’s evidence does however suggest a willingness by ES to mislead her as to her whereabouts, but I consider that to be a qualitatively different proposition to falsifying allegations of sexual assault against someone so as to reflect only marginally on the reliability and credibility of ES’ account. Nonetheless, as I have previously intimated in other contexts, it is necessary to view the matters I am traversing in combination and not in isolation. 309 For the reasons I have mentioned, in combination, I found ES to be a generally credible witness insofar as I consider that she was endeavouring to tell me what she considered to be the truth, but I did find aspects of ES’ evidence to be unreliable. -- 62 of 69 -- [2024] SADC 73 61 310 In reaching this conclusion, I have taken into account the evidence relating to counts 1, 2 and 3 consistently with the concession made by Ms Luu as to cross admissibility and the direction I earlier detailed, however for reasons that will become apparent, that does not assist the prosecution in the circumstances. Motive to lie 311 I have previously set out the directions I have given myself in relation to assessing a motive to lie and it is unnecessary to repeat them. The motives for ES to lie identified by Ms Luu were disdain towards the accused because of what ES thought were his unwarranted and unfair disclosures to her mother about her drug use; or having a boy in the house; or because she had unrequited feelings for the accused. 312 Of course, the mere existence of a motive to lie does not mean it is reasonably possible that a witness’ evidence is a lie. A witness may have a motive to lie without that motive being responsible for their allegations or actuating their evidence. That is to say, the existence of a motive does not mean it is reasonably possible the witness has acted on the motive. Nonetheless, where the evidence reveals the existence of a motive or motives to lie, those matters must be given careful consideration and, as I have previously said, even if it can be concluded that the evidence given by the witness is not the product of a motive to lie, that does not mean the witness is telling the truth nor does it offer any buttress to the prosecution case. 313 I accept that the matters relied upon by Ms Luu are potentially quite powerful motives for ES to have fabricated allegations against the accused. I accept in that respect that the evidence discloses that ES may have had reasons to manufacture allegations against the accused. However, in considering the possibility that any one or more of these motives accounts for ES’ allegations against the accused, I bear in mind that there was no evidence that ES suffered any particular repercussions as a result of her mother finding out about her MDMA use or that she had a boy in the house. ES did say she was ‘pissed off’ about the accused telling her mother about her drug use but, otherwise, there do not appear to have been any significant consequences for ES because of the accused’s disclosures. ES said she did not have a big argument with her mum about MDMA and her mum just told her to stop using it, adding ‘but we didn’t get into a fight about it, a big fight’. 314 Moreover, as ES said in cross examination, the issue with the ‘boy’ being in the house was not particularly problematic for her as he was not at the house for ES: as ES said, ‘I didn’t care’. The cogency of these disclosures by the accused as explanations for ES’ allegations would be increased if it were demonstrated that they worked substantially to ES’ detriment – but the evidence did not suggest as much. -- 63 of 69 -- [2024] SADC 73 62 315 I reject the suggestion that ES’ allegations are the product of her having a grievance with the accused as a result of him disclosing her drug use or the ‘boy’ incident. 316 As to the possibility that ES was driven to manufacture allegations against the accused because she had unreciprocated romantic feelings for him, I accept that ES said in her evidence that she ‘fancied’ the accused; but the evidence did not go so far as to suggest, for example, that she had pursued a romantic relationship with him but had been rebuffed. Again, I reject the possibility that this thesis accounts for ES’ allegations. 317 Of course, and as I have said, having rejected the contention that ES’ allegations might be explained by a motive or motives to lie, that does not make ES’ evidence more believable or reliable and it does not mean she does not have an operative motive to lie. It remains incumbent on the prosecution to persuade me of the credibility and reliability of her evidence and prove the elements of counts 1-3 beyond reasonable doubt. Accused’s evidence 318 The accused generally gave his evidence in an unemotive and responsive way. For the most part, his answers to questions in both examination in chief and cross examination tended to be succinct. He tended to elaborate or provide detail only when requested. 319 The content and presentation of the accused’s evidence was also generally consistent with the presence of some of the learning difficulties that he said he suffered. There was nothing about the evidence of the accused that was glaringly improbable and his evidence was not materially undermined in cross examination. However, I found aspects of the accused’s evidence troubling. 320 The accused’s evidence about the circumstances in which he came to be in contact with ES via Snapchat and the aloofness surrounding his contact with ES outside of the Club – for example, when driving her to various places – was curious to say the least. I was inclined to think that the accused was being somewhat guarded or cautious about disclosing how much time and how he came to spend time in ES’ company, with a view to minimising the nature and extent of his relationship with her. 321 I also considered his lack of recollection on various topics, which was a recurring feature of his evidence, to be somewhat unsettling. 322 By way of example only, I set out the following exchange during cross examination which tends to illustrate the degree to which the accused asserted a limited memory on certain topics: Q. A moment ago you mentioned you would only take her home if she had no other way to get home, is that correct. -- 64 of 69 -- [2024] SADC 73 63 A. Correct. Q. At that point in time did her mum not have a licence. A. I don't recall. Q. So you took her home quite frequently. A. Sometimes. Q. You heard, you would have seen [ES'] interview where she talked about how you had one car and then there was some kind of accident and you had another car. A. Correct. Q. When did that occur. A. I don't recall. Q. But the events she described is what happened, you had an accident and had to change vehicles. A. I had an accident and I needed the car to get to work. Q. So what she describes about you changing cars because of an accident, that's correct. A. That's correct, yes. Q. But you are not exactly sure when that was. A. Correct. Q. Was it in 2020. A. I don't recall. Q. When you would take [ES] home did you do so in both of those vehicles. A. I don't recall. Q. When you would take [ES] home would you also take other members of her family with you. A. I don't recall. 323 The accused’s asserted lack of recollection about various matters could possibly be accounted for by evasiveness or an unwillingness to tie himself down in his evidence in certain respects; but it may also be reflective of the fact that the accused was speaking to events that occurred a number of years ago and I bear in mind the potential interrelationship between his memory, learning difficulties and the head injury he said he sustained. 324 There is, additionally, some force in Ms Luu’s submission that the accused resisted the opportunity during his evidence to embellish or develop answers that -- 65 of 69 -- [2024] SADC 73 64 had the potential to assist in the presentation of his defence. I again reference the discussion with MZ about the complainants staying at his house and his inability to recall MZ’s reaction to his disclosure of ES’ drug use. It may be thought that if the accused was ‘malingering’ when asserting a lack of recollection, he would have seized on these opportunities to reinforce the defence position, but he did not do so. 325 I also found the evidence of ES and the accused that he had told MZ about ES’ use of drugs to be puzzling for this reason: the disclosure appears to have occurred, at the very least, after count 1 is said to have taken place20 and it may be doubted that the accused would engage in conduct likely to precipitate a conflict with ES if he had in fact had unlawful sexual intercourse with her. It might be thought that telling MZ about ES’ drug use could well be the very kind of thing likely to prompt ES to complain about the accused’s conduct, so as to deflect any difficulties that his disclosure brought about for her. Again, I do not consider this to be by itself in any way decisive, but it does strike me as conduct by the accused that does not sit neatly with the allegation/s of unlawful sex. 326 I have previously remarked upon the New Year’s Eve phone call between ES and the accused and said that no adverse finding against the accused can be made in respect of that conversation and the prosecution did not urge me to make any such finding. I add further that in cross examination of the accused, it was put to him that he told ES to tell the police that DO was lying and was just upset with him at having not given her a lift. The accused rejected these propositions and I think it is highly unlikely that he would have suggested that ES attempt to persuade the police that DO had made up allegations of sexual assault because the accused had not given her a lift on some unspecified occasion. In any event, as I have said, in light of the way the evidence came out and apart from it being common ground that the accused and ES had a telephone conversation, I cannot make anything further of the content of the call. 327 Whilst I did not find the accused to be a particularly impressive or persuasive witness, his denials were not seriously undermined in cross examination and the substance of his evidence was generally cohesive. Conclusion 328 The resolution of the key forensic issues in this case is not without difficulty. As I have said, I found DO to be a generally impressive witness. She was forthright and direct in her responses to questions and she presented in a mature and thoughtful way. Her evidence, viewed holistically, hung together reasonably neatly. I accept that DO’s account of the events of 8 November 2020 was shown to be inconsistent in numerous respects that I have canvassed and, perhaps most 20 On ES’ version, the disclosure was made after count 1; on the accused’s version, the disclosure was made after 8 November 2020. -- 66 of 69 -- [2024] SADC 73 65 significantly, her late and inconsistent suggestion that the accused engaged in sex with ES from behind her is also refuted by ES’ evidence. 329 I did not find the evidence of ES to be as persuasive as the evidence of DO. In fact, I considered ES to be in numerous respects unreliable and so much was, I find, demonstrated by the various inconsistencies I have referred to. Nonetheless, and as I have said, I generally thought ES was endeavouring to tell the truth. 330 I did not find the accused to be a particularly compelling witness. I had reason to pause over the excessive number of occasions on which the accused answered questions with ‘I don’t recall’ but, as I have mentioned, I find it difficult to conclude in the particular circumstances of this case that these were necessarily evasive or disingenuous claims of a lack of memory. He was, however, unmoved and stoic in his evidence that he did not engage in unlawful sex with either ES or DO. 331 As to count 1, there are aspects of ES’ account which appeal to me as uncompromisingly honest. I refer, in particular, to her frank suggestion to Detective Casey that she had, as a matter of fact ‘consented’ to sexual activity with the accused in his car and did not care whether he got in trouble in respect of that episode. That evidence has the quality of a truthful explanation to me and I note further that ES was open about the limits of her memory insofar as the sexual activity in the car was concerned. Equally, however, I consider the inconsistencies in ES’ evidence of count 1 to be troubling. The shift in her version of events about the timing of the incident and the varied accounts she gave about how she came to be alone with the accused on that occasion require careful scrutiny. I must also bring to account the forensic disadvantage which I consider the accused suffers in meeting this allegation given the imprecision in the prosecution case as to when it took place which denied the accused of the opportunity to marshal evidence in his defence and further test ES’ allegations. In circumstances where the accused’s denials of this charge were neither implausible, glaringly improbable nor materially undermined in cross examination, I am unsure as to where the truth lies. Although I am deeply suspicious that the accused engaged in unlawful sexual activity with ES in his vehicle as alleged, I am unable to make such a finding beyond reasonable doubt and my verdict must therefore be not guilty. 332 As to counts 2, 3 and 4, the evidence of DO and ES was, in many respects, consistent and coherent. I have already remarked upon the extent to which there were variations in their accounts, which might be explained by a number of matters, including the nature of the alleged episode and the stressors prevailing upon each of them at the time; the period of time that has elapsed since the alleged events; their age; and the consequences associated with having to re-tell a version of events on multiple occasions. 333 Be that as it may, and despite the fronts on which they are consistent, the fact is there are also not insubstantial conflicts in their accounts about what happened in the accused’s bedroom. These conflicts mean that one or perhaps both of them -- 67 of 69 -- [2024] SADC 73 66 are wrong about the events that took place in material respects. As I have said earlier, the conflict or inconsistencies in the evidence of ES and DO gives me confidence that these allegations are not the product of collusion, but they do create a difficulty in discerning what actually happened. 334 These difficulties are, to my mind, compounded when viewed in the context of the re-attendance by ES and DO at the accused’s house and their frivolity in his bedroom, just a week after the events of 8 November 2020. The manner in which ES and DO conducted themselves on that occasion gives me some disquiet about their evidence as to counts 2-4, although for the reasons I have previously given I do not suggest their behaviour was completely inexplicable given their age nor fundamentally incompatible with their allegations. Nonetheless, it remains an important feature of the evidence. 335 Having said that, it is undeniably the case that the evidence of ES and DO is consistent insofar as both allege that ES performed fellatio on the accused and the accused then had sex with her. The consistency of their evidence, which I have found cannot be explained by collusion or contamination, is a strong indicator of honesty. 336 DO’s evidence as to the commission of count 4 is, obviously enough, not supported by ES but that too is unsurprising given both ES and DO said that ES went to sleep after the accused had sex with her. It is, I consider, a testament to ES’ genuine endeavour to tell the truth that despite being told by DO that the accused had tried to have sex with her, ES remained clear and consistent in her evidence that she did not see what transpired between the accused and DO. 337 On the other hand, and for reasons I will not repeat at length, there were aspects of the accused’s evidence that I considered to be curious if not suspicious but he remained steadfast in his denials of any wrongdoing and the concreteness of his denials and the integrity of his evidence more generally was not substantially dismantled by cross examination. 338 Plainly enough, in some respects, the versions of ES and DO cannot both be universally correct and neither version is in any substantive way reconcilable with the accused’s account. Compounding the difficulty is that the evidence given by ES, DO and the accused presented, in various respects, with characteristics that appear to be consistent with truthful evidence; yet their accounts are fundamentally mutually exclusive. 339 As I directed myself at the outset of these reasons, the question for me is not whether I prefer the evidence of one or both of the complainants to that of the accused but whether the prosecution has proved the elements of the offences beyond reasonable doubt, which necessarily requires me to reject the accused’s denials as not reasonably possibly true and to accept the evidence of ES and / or DO in relation to the charged acts as honest and accurate. -- 68 of 69 -- [2024] SADC 73 67 340 Having heard and re-considered all of the evidence given at trial and reviewed the exhibits, I have arrived at the conclusion that I am unsure where the truth lies in this matter. The detail and manner in which DO in particular gave her evidence, supported by and consistent as it was with the evidence given by ES in important ways, again makes me highly suspicious that the accused engaged in unlawful sex with both complainants as alleged. However, the misgivings I hold about the accused’s evidence are not sufficient for me to reject his denials as not reasonably possibly true. 341 I find I am unable to reach a conclusion to the criminal standard that the accused committed the acts the subject of counts 2, 3 and 4. I do not know who of the apparently generally credible and reliable witnesses was telling me the truth. It follows that I am not satisfied beyond reasonable doubt that the charges have been proved. 342 In those circumstances, my verdicts on counts 2, 3 and 4 must be not guilty. Verdicts 343 For these reasons, I find the accused not guilty of counts 1, 2, 3 and 4 on the Information of 5 August 2022. -- 69 of 69 --