[2024] SADC 89

Prosecution: R Counsel: MS G GROSSET - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: VANNA HENG Counsel: MRS J POWELL - Solicitor: WOODS & CO LAWYERS Hearing Date/s: 10/07/2024, 11/07/2024, 12/07/2024, 15/07/2024 File No/s: DCCRM-24-001290 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 HENG Criminal Trial by Judge Alone [2024] SADC 89 Judgment of his Honour Auxiliary Judge Barrett 31 July 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURING The accused is charged with two counts of Communicating with the Intention of Procuring a Child for Sexual Activity. It is alleged that on two occasions during one evening, the accused by words and actions communicated with a 14 year old girl proposing that they have sex. The accused gave evidence denying the allegations. Held: The accused is guilty of both charges. Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a); Evidence Act 1929 (SA) s 13BA, s 34M and s 34P, referred to. Kendall v R [2024] SASCA 54; Baptiste v R [2023] SASCA 70; R v Trimboli (1979) 21 SASR 577 ; Paulic Bednikov (1997) 95 A Crim R 200 ; R v Baker (2000) 78 SASR 103 ; R v Barrie (2012) 218 A Crim R 448: [2012] SASCF 124; Liberato v R (1985) 159 CLR 507: [1985] HCA 66; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242: [2013] SASCFC 46, considered. -- 1 of 22 -- -- 2 of 22 -- R v HENG [2024] SADC 89 1 The accused is charged with two counts of Communicating with the Intention of Procuring a Child for Sexual Activity. He is alleged to have had two particular conversations with the then 14 year old complainant on a single evening when he and others were guests of her father in their family home. The accused was 37 at the time. 2 I reproduce the charges:- INFORMATION Criminal Procedure Act 1921 s 103 Statement of Charges Count 1: Offence Details: Communicating with the Intention of Procuring a Child For Sexual Activity. (Section 63B(3)(a) of the Criminal Law Consolidation Act, 1935) Particulars Vanna Heng on the 9th day of June 2023 at Ferryden Park, made a communication with the intention of procuring C.O, a person under the age of 17 years, to engage in, or submit to, sexual activity. Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016. This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018. Count 2: Offence Details Communicating with the Intention of Procuring a Child For Sexual Activity. (Ibid) Particulars Vanna Heng on the 9th day of June 2023 at Ferryden Park, made a communication with the intention of procuring C.O, a person under the age of 17 years, to engage in, or submit to, sexual activity. Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence -- 3 of 22 -- [2024] SADC 89 2 This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016. This may be a ‘disqualification offence’ within the meaning of sections 18 A and 18 U of the Disability Inclusion Act 2018. Case for the Prosecution 3 The accused was one of seven men who were drinking at a tavern on Friday 9th June 2023. The complainant’s father, J.O, was one of them. He was a work foreman for several of the men but not all, and not for the accused. The accused had seen J.O at the tavern before but had never really met him. The accused was friends with one of J.O’s non work friends, who, in turn was a cousin of another. J.O invited the six men to come to his house to have some drinks, watch football on the TV and play pool. The group arrived at his house around 7.30 pm. The accused drove his friend D.M to the house. 4 The men gathered in an undercover paved patio at the back of the house where there was a TV and a pool table. Adjacent to the patio was an uncovered paved area where there was a basketball hoop. A CCTV camera captured the covered area but only the very edge of the uncovered area. During the evening several people, including the accused, the complainant, and her then 11 year old sister were playing basketball, or at least a goal shooting game. The basketball area was not captured by the CCTV camera but people waiting for their turn to play were captured between their having shots at the basket. The complainant’s mother was inside the house watching TV in the family room adjacent to the patio. 5 An edited copy of the CCTV footage from the evening was tendered as Exhibit P5. 6 The crown case is that while playing basketball the accused engaged in conversations with the complainant with the intention of procuring her for sexual activity. He asked her where her bedroom was. He asked her whether she had a boyfriend and whether she had had sex with him. He asked her if her boyfriend had ever licked her ‘thing’. The complainant replied that she had never had sex. He asked her if she would have sex with him and he asked where her bedroom was. He said ‘Let’s have it in your room’. Shortly before engaging in this conversation the accused had offered the complainant a drink of his scotch and coke. The sexual parts of these conversations are the subject of Count 1. 7 Later in the evening the accused went to the toilet. The complainant went to her bedroom. On the crown case, the accused came into her bedroom, shut the door and locked it. He pulled his fly zip down part way and said ‘let’s have it’. The complainant said she was uncomfortable and that they should go back to the basketball game. On the crown case, the words and actions in the bedroom make out Count 2. 8 The defence case is that no inappropriate conversations or actions happened. While playing basketball the accused had conversations with the complainant -- 4 of 22 -- [2024] SADC 89 3 about innocuous matters. After he had gone to the toilet he went to the complainant’s bedroom door, but not inside the room, and merely commented to her about the neatness of her room. Course of the Trial 9 The evidence of the complainant was led principally by way of a prescribed interview with a police officer on 14 June 2023, some five days after the alleged offending. I was told that the interview had previously been admitted pursuant to s 13BA of the Evidence Act. The complainant was aged 14 years and three months at the time. Pursuant to s 13BA (5), counsel for the prosecution and the defence sought, respectively, to examine and cross-examine the complainant. I granted leave to both on topics which were identified.1 10 Before the complainant was examined by Ms Grosset for the prosecution, I had a short discussion with the complainant and satisfied myself that she was capable of giving evidence on oath or affirmation.2 The complainant’s examination-in-chief and cross-examination were conducted in accordance with the leave I had given. 11 The same procedure was adopted in relation to the complainant’s younger sister S.O. Her interview with the police officer took place on the 26th October 2023, some 4 ½ months after the alleged offending. S.O was 11 years and 5 months old at the time of the interview. That interview had also been previously admitted. I granted leave to both counsel to question S.O on topics which were identified. Before S.O was questioned, I had a short conversation with her.3 I should say that while Mrs Powell for the accused did not anticipate that I would have any trouble finding that the complainant was capable of giving sworn evidence, the case of S.O was probably more borderline.4 Having spoken to S.O, I concluded that she did understand the importance of the obligation of making a promise in court to tell the truth. S.O was questioned in accordance with the leave that I had given. 12 The further witnesses called by the prosecution were the complainant’s mother E.O, her father J.O, four of the guests on the night and the investigating officer. The investigating officer said in effect that the fifth guest had been uncooperative. There were agreed facts.5 13 The accused gave evidence. He called no witnesses. I treat his evidence in the same way that I treat the evidence of other witnesses. I defer for later consideration whether he gave evidence of his good character. 1 T17. 2 T24. 3 T66-67. 4 T14. 5 Exhibit P10. -- 5 of 22 -- [2024] SADC 89 4 Evidence of the complainant 14 The complainant was aged 14 years, 3 months at the time of the alleged offending and 15 years, 4 months when she gave her evidence. I will deal separately with what may be observed on the CCTV footage but I interpolate into the complainant’s evidence relatively uncontroversial aspects of the footage, including reference to times shown on the recording. The time shown on the footage is slightly inaccurate but for convenience I will treat the time shown as the real time. 15 I will attempt to reconstruct events chronologically drawing on the evidence of the complainant and the accused and the CCTV footage with a view to recounting, principally at this stage, the account of the complainant. 16 The CCTV footage shows the complainant coming into the patio around 8:20 pm. She had just got home from working at Hungry Jacks. The guests had been in the area since about 7:30 pm. 17 In her police interview the complainant said that she had started playing basketball with the accused, her sister and another guest. She said that the accused engaged her in conversation. At first, he asked her questions about herself but ‘then he got to the weird questions’.6 18 A combination of the complainant’s cross-examination and the CCTV footage would suggest that she joined her sister, the accused, and another guest B.K having informal basketball shots before they formed themselves into two teams, one consisting of the complainant and the accused, and the other consisting of the complainant’s sister and B.K. The teams formed up around 8:52 pm. 19 The accused and the complainant are seen to begin interacting around 8:45 pm. That said, the camera does not record what happened in the uncovered area around the basketball hoop. It only records what happened in the covered area of the patio. The accused and the complainant are seen talking together at around 8:45 pm. 20 In cross-examination the complainant said that the accused’s sexual questions began after he had offered her some of his alcohol.7 The accused does not dispute that he offered her some of his alcohol although he says that she began the conversation about alcohol. 21 The CCTV would suggest that there was interaction between the accused and the complainant about alcohol at 21:05:34 and 21:17:50. 22 I refer to observations from the CCTV of interactions between the accused and the complainant before the alcohol is discussed. As I have said, the 6 MFI P1A, page 5, line 21 and following. 7 T39. -- 6 of 22 -- [2024] SADC 89 5 complainant said that before the alcohol was discussed the conversations with the accused had been on innocuous topics. 23 Before 21:05:34, the accused can be seen close to the complainant at times. He was speaking to her closely and touching her. 24 At 20:46:30, the complainant agreed in cross-examination that when she told the accused she worked at Hungry Jacks he joked that the next time he ordered food he would call ahead to ask her for extra food.8 25 At 20:59:00, the accused touched her on the back to take her shot. By this time the teams had been formed and the accused and the complainant were on the same team. 26 At 21:02:00, the accused and the complainant do a high five. The accused hugs the complainant. 27 At 21:05:03, the accused shakes the complainant’s hand. He then puts his hand on her cheek and puts her hand on his cheek. The complainant agreed in cross-examination that when he did that, he said something about their hands being cold.9 28 Turning to the alcohol question there was much common ground between the accused and the complainant about what was said and done, although Mrs Powell for the defence criticised the complainant for what she described as inconsistency in her account. In her interview the complainant said that the accused put his scotch into her sister’s cup and asked her to drink it,10 whereas her cross-examination should be taken as an acknowledgment that she began the conversation with the accused about alcohol. In my view the complainant did not in terms agree that she had instigated the conversation about alcohol, but she did acknowledge parts of conversations put to her in cross-examination which left it unclear whether she had started the conversation.11 29 What is common ground between the accused and the complainant, and is observable, in part, on the CCTV, is that on at least two occasions about five minutes apart, the accused offered the complainant to drink a small amount of his alcohol. That occurred at about 9:17 pm and again at about 9:23 pm. The accused poured some of his alcohol into a cup which he thought was the complainant’s. In fact it was her sister’s cup. There was some discussion about this misunderstanding, but the accused pressed the invitation by putting the alcohol in the complainant’s cup. She declined to drink it. She appears on the CCTV to be declining the drink. 8 T53. 9 T53-4. 10 Exhibit P5, page 5, ln 44 and following. 11 T54-5. -- 7 of 22 -- [2024] SADC 89 6 30 The complainant said that the sexual questioning took place after the alcohol discussion, at say, 9:23 pm and before the accused left the patio to go to the toilet via the laundry, 13 minutes later, at around 9:36 pm. The complainant went to her bedroom via the laundry at about 9:37 pm. 31 During that thirteen minutes the accused can at times be seen standing close to the complainant and sometimes touching her. He can also be seen leaning his head close to her and speaking. 32 The complainant said in her interview that the accused said several things of a sexual nature. He asked her if she had a boyfriend and if she had ever had sex with him. He asked her if the boyfriend had ever licked her ‘thing’.12 He asked where her bedroom was. He asked her if she would have sex with him. He said ‘let’s have it in your room.’13 He kept asking the same questions about seven or eight times.14 33 The complainant said that when she was trying to have a shot at basketball the accused was getting really close to her.15 34 At 21:36:20 the accused entered the house through the laundry door. As he opened the door he looked back at the complainant and raised his eyebrows. He agrees that he did that, but he says that he was indicating that she should take a good shot.16 Just before that he can be seen talking closely to the complainant for between thirteen and fifteen seconds. 35 In her interview the complainant said that before the accused left the patio he said ‘let’s have it in your room’. She said that she left the patio area ‘double checking he did not go in my room’. She said that three seconds after she went to her room the accused came in and said ‘let’s have it’. He shut the door and locked it. He started undoing his pants zipper. She told the accused that she was uncomfortable and she did not want to do it. She suggested that they go back to the game. He pulled up his zipper and he went out. 36 The complainant is seen leaving the laundry door at 21:39:15, two minutes and eleven seconds after she entered. She has a lolly in her mouth. The accused exits behind her. In cross-examination the complainant said that she did not know how she came to have the lolly. 37 The accused and the complainant returned to the basketball game between 21:40:30 to 21:49:54. The complainant then went inside the main back door and did not come out again. The CCTV shows the accused going back into the house three times after that. Sometime in the following forty minutes the complainant reported to her mother what she says happened. Her father is told and about two 12 Exhibit P5, page 5, ln 21. 13 Page 6, ln 14. 14 Page 10, ln 19. 15 Page 6, ln 1-10; page 11, ln 1 - page 12 ln 32. 16 T243-5. -- 8 of 22 -- [2024] SADC 89 7 other guests go into the house to be told as well. The complainant’s father went out and confronted the accused who leaves the house. Evidence of the complainant’s sister S.O 38 S.O said in her interview that while the basketball was being played, she noticed the accused getting quite close to her sister, touching her and speaking to her. If they were close to her, he would stop talking to her sister.17 S.O did however hear the accused ask her sister where her bedroom was.18 In examination-in-chief S.O was only asked questions seeking to elucidate what words she was using to identify the accused. Nothing turns on that topic. 39 In cross-examination S.O agreed that she was present while the CCTV footage was shown in the house after the guests had left. She knew what her sister was saying had happened. She was present when her sister told each of their parents and the guests. 40 In cross-examination it was put to S.O that when she spoke to the police officer, she said that she thought that she heard the man say something to her sister about the bedroom. She agreed that she said that, but she said that she was now sure.19 My reading of the interview does not necessarily bear out the question which was put to S.O. At page 7, lines 303-308, S.O says that she remembers hearing one thing the man said and that was things like ‘where is your room?’. At page 11, lines 517-518 the police officer asks ‘but when you did go over you said you thought you heard him say something like where is your bedroom?’. S.O agreed. Evidence of the complainant’s mother E.O 41 E.O picked up the complainant from work at about 8 pm. On her return to the house the complainant went out to the patio and played basketball. 42 E.O was watching TV in the family room which opened onto the patio at the back. E.O said that during the evening she heard the complainant’s bedroom door lock. She concluded it must have been the complainant’s bedroom door because she was able to exclude the other doors which had a lock on them. She said that the complainant tended to lock her door.20 43 E.O said that the complainant spoke to her in the family room and told her that she wanted to speak to her. They went together into the main bedroom. There the complainant told her about the accused talking to her about sexual matters and offering her some of his drink. She told her about the accused coming into her bedroom, locking the door and asking her if she ‘wanted to have it’.21 17 MFI P1B, page 5, ln 218-222. 18 Page 5, ln 308. 19 T77-78. 20 T81-82 and T91-92. 21 T83. -- 9 of 22 -- [2024] SADC 89 8 44 After that the complainant begged her not to tell her father until after the accused had gone. E.O said that later her daughter texted her and told her that she could tell the father. She wanted the accused out of the house.22 E.O went out and spoke to her husband. Other witnesses 45 The prosecution led evidence from the complainant’s father and four of the five guests. Each said that he saw and heard nothing untoward in the interactions between the accused and the complainant. Investigating officer 46 Brevet Sergeant Nicholas Porter went to the complainant’s house on 14th June 2023, five days after the alleged offending, and there viewed and seized the CCTV footage. He noted that the time shown on the footage was 3:47 seconds fast. The accused 47 The accused gave evidence. He is 38. He was born in a refugee camp in Thailand. His parents were of Cambodian descent. They separated when he was 12. His mother died when he was 14. When he was 17, he was able to join his father who had been resettled in New Zealand. It appears he met his first wife in New Zealand, although it may be that they did not marry until they both migrated separately from New Zealand to Australia. The accused has two daughters aged in their late teens from that relationship. He separated from his first wife and later entered a relationship with his present partner in 2008. His partner was in court when he gave evidence. 48 In Australia the accused has worked as an air conditioner technician. He has not been in trouble with the police. 49 On Friday 9th June 2023 the accused was at home when he received a call from a friend at 4:30 pm inviting him to come to the local tavern for drinks. He went to the tavern at about 6 pm. Before going to the complainant’s house at around 7:30 pm he had two drinks of scotch and coke. He was not feeling affected by alcohol. He drove his friend to the complainant’s house. He did not really know the other guests, but it seems that he had seen some of them on occasions at the tavern, including the complainant’s father. 50 In the roughly two hours between arriving at the complainant’s house and the alleged offending the accused had two more drinks of scotch and coke. 51 The accused said that he became involved in the basketball playing before and after the teams were formed. He was teamed with the complainant. 52 The accused acknowledged that it was wrong for him to have offered the complainant a taste of his drink. However, he said that she began the conversation 22 T85. -- 10 of 22 -- [2024] SADC 89 9 about alcohol. She asked what he was drinking. She told him that her father had let her drink beer before. She asked what scotch tasted like.23 The accused agreed that he offered her a drink twice. She did not ask him if she could try scotch.24 He does not dispute that she denied the offer of a drink. 53 The accused’s attention was drawn to points in the CCTV footage in both examination-in-chief and in cross-examination. He said that at all times his conversations with the complainant were on innocuous topics. Such touching as there was, was a result of interactions in the course of playing basketball; for example, patting her back to get her to take her turn, hugging her to celebrate a successful shot and touching their respective cheeks to demonstrate how cold their hands were. The accused agreed that he spoke closely to the complainant before he went to the toilet but said he was only telling her to take his shot while he was away. He agrees that he looked at her as he entered the laundry door and raised his eyebrows but said he did that only to encourage her to take a good shot.25 The accused said that when he left the toilet, he noticed there was a light on in a room across the hallway. When he had gone into the toilet the light had been off. He went past the door which leads out through the laundry and crossed the hallway to have a look at that room. He noticed the complainant inside. He asked if it was her bedroom. She said it was. He commented that she kept her room nice and clean, unlike his daughter.26 He denied going into the bedroom and he denied the allegations about what he did. He retraced his steps and exited through the laundry. The complainant is shown exiting that door immediately before he did. They resumed playing basketball for about ten minutes. 54 In cross-examination the accused said that he went to the complainant’s bedroom ‘just to have a look, to see who was in there’. He had noticed that when he was going to the toilet the light in the room was off but when he came out it was on. He was not able to see the complainant until he got to the door. He did not know who, if anyone, might be there.27 55 He agreed that after the basketball was finished, he entered the house again about three times.28 He denied doing so to look for the complainant. He said that for some of the time he was inside the house he was doing origami with the complainant’s sister. 56 The accused agreed that at 22:28 he appears unsteady on his feet. He said that was caused by his having had a vape and a cigarette, something he did only when he was drinking.29 23 T157. 24 T198-201. 25 T244-5. 26 T180. 27 T223-26 and T245. 28 T227. 29 T242 and T253. -- 11 of 22 -- [2024] SADC 89 10 Addresses Ms Grosset for the prosecution 57 Ms Grosset submitted that while the prosecution’s case rested principally on acceptance of the complainant’s evidence she is supported in some respects by her mother, who heard her lock engage, her sister, who heard the accused say something about her bedroom, and the CCTV footage which demonstrates a degree of inappropriate intimacy on the part of the accused. Further, the complainant’s credit is enhanced by her making a prompt complaint to her mother which demonstrates both consistency of conduct and consistency of account. 58 Ms Grosset submitted that the charged acts occurred somewhere between 8:20 pm, when the complainant got home, and 9:39 pm when the accused and she emerge from the laundry. More specifically, the alleged conversations which are the subject of count 1 occur between 8:32 pm when the accused is first seen speaking to the complainant and 9:36 pm when the accused exits through the laundry door on the way to the toilet. 59 The words and actions which are the subject of count 2 occur between 21:37:04 when the complainant exits through the laundry door and 21:39:15 when she reemerges, a period of two minutes and eleven seconds. 60 Ms Grosset submitted that the accused’s explanations for the observed closeness between him and the complainant are not credible. That closeness cannot be explained by the ambient noise in the area. The accused did not get as close to anyone else he was talking to as he did to the complainant. He did not touch anyone else at all except when, almost at the end of the night, he put his arm around the complainant’s father’s shoulder. 61 Instead, his closeness to the complainant is evidence of him opportunistically and inappropriately being affectionate towards her with the intention of making her amenable to sexual activity. 62 Further evidence of that intention is his offer of alcohol to the complainant. He makes two attempts to offer her a drink. There is demonstrated, an attempt to physically hide one of those offers. 63 The accused’s looking at the complainant and raising his eyebrows as he opened the laundry door on his way to the toilet is a sexually suggestive expression, not as he would have it, an encouragement to have a good shot at basketball. His close thirteen to fifteen second conversation with her before he makes his way to the laundry door is inconsistent with his claim of simply telling her to take his shot while he goes to the toilet. 64 Turning to count 2, Ms Grosset submitted that the accused’s explanations for going to the complainant’s bedroom door are not credible. On leaving the toilet the floorplan of the house shows that the accused had to walk past the inner laundry door, the way to the exit through the outer laundry door, and walk across a hallway -- 12 of 22 -- [2024] SADC 89 11 to get to the bedroom door. Idle curiosity is less likely to be his motive than to pursue his sexual intentions towards the complainant. 65 As it happens, the pants the accused was wearing on the night do have a zipper fly as the complainant says. 66 Ms Grosset submitted that the accused subsequently going back into the house three times after the complainant had gone indoors is evidence of him looking for her. 67 Ms Grosset submitted that the complainant was a credible and reliable witness whose evidence is supported in respects by her mother and her sister. The CCTV evidence supports her. The zipper on the accused’s pants and the floorplan showing the route he had to take to get to her bedroom support her evidence. The complainant’s credit is enhanced by her prompt complaint to her mother. Ms Grosset submitted that the evidence is such that the accused should be found guilty of both charges. Mrs Powell for the accused 68 Mrs Powell submitted that although there is a degree of cross admissibility between the two counts, I should give separate consideration to each. 69 Complaint evidence may only be used in prescribed ways. 70 The suggested support for the complainant’s evidence from her mother, regarding the lock, and her sister, regarding the overheard utterances, are weak. Likewise, the CCTV evidence. 71 Correctly, Mrs Powell submitted that my fact-finding function is not to reason that one case is preferred over another, but to determine whether the prosecution has proved its case beyond reasonable doubt. Likewise, if, in the face of competing accounts, it is not possible to determine where the truth lies, the prosecution will not have discharged its onus. 72 Mrs Powell made observations about the relationship dynamics among the adults. The accused was a guest in an unfamiliar house. He had never met the complainant’s father before although he may have seen him at the tavern. He had never seen his family. He only knew the friend who had invited him to the tavern and whom he drove to the house. He was not particularly interested in the football on the TV. He was not a good pool player. He had a few shots at pool but did not persist when more able players took part. He was among unfamiliar people with whom he had little in common. 73 As a consequence, the accused might have behaved in an overly friendly way so as to fit in better. He joked with the complainant’s mother when he met her saying he was there to fix their air conditioning. Late in the evening he put his arm -- 13 of 22 -- [2024] SADC 89 12 around the complainant’s father. Along with one of the other men, he played origami with the complainant’s sister. 74 Mrs Powell submitted that the complainant’s sister’s evidence offers little reliable support. In her interview she thought she overheard the accused say something about her sister’s bedroom. I have already observed that she did not initially speak in that tentative way. Rather, she did not demur when the interviewer revisited that topic using the word ‘thought’. A further criticism is that the complainant’s sister was present when she was telling others what had happened. 75 Mrs Powell submitted that there is an inconsistency between the complainant and her mother about whether the complainant sent her a text. I am not sure that there is so plainly an inconsistency. In her interview the complainant said that when she first went into her bedroom, she was thinking about sending her mother a text about the accused. She did not do so because the accused came into the room.30 She says nothing about sending a text to her mother after she had reported the matter. 76 Her mother said that when she complained about the accused’s conduct she told her she should not tell her father until after the accused had left the house. Her mother said that after a while, her daughter did send her a text saying that she could tell her father because she wanted the accused out of the house.31 The complainant was cross-examined on that topic but the relevant question elided the two ideas of intending to send a message about what the accused had done and sending one saying that she wanted him out of the house. The complainant said she did not send a message but it may be that, in saying so, she was focusing only on the thought of sending one when she first went into the bedroom.32 77 The complainant’s mother claimed to have heard the complainant’s door lock engage during the evening, but she could not remember when that was. Further, it is not clear whether, for example, the lock on the toilet made the same noise, despite the possibility of that lock not actually working. 78 Mrs Powell submitted that the complainant has said that she felt uncomfortable about the accused at certain stages. For example, the drink conversation was uncomfortable. Maybe the accused was making inappropriate attempts to fit in by asking her too many questions and telling her too much about his family. Maybe that discomfort caused the complainant to want him out of the house. She may have exaggerated events so as to achieve that end. I will give myself a direction about a motive for the complainant to lie. 79 Mrs Powell submitted that none of the other guests saw anything inappropriate in the interactions between the complainant and the accused. At 30 MFI P1A, page 15, ln 41- page 16 ln 4. 31 T85. 32 T45, ln 15-25. -- 14 of 22 -- [2024] SADC 89 13 times most, if not all, were close to them both and would be likely to have heard or noticed anything inappropriate. No one noticed anything inappropriate about the touching which is seen on the CCTV, and no one heard anything inappropriate. The complainant herself said that she was surprised no one overheard. 80 To have behaved as the complainant said the accused did, would have been brazen and very susceptible to discovery. 81 Mrs Powell submitted it was significant that, despite what she said the accused did to her in the bedroom, the complainant returned with him to the patio and played basketball for a further ten minutes. No one noticed anything abnormal about her appearance when she returned. Nothing abnormal is observable on the CCTV. She completed the game of basketball and retired into the house. 82 There were further observations adverse to the complainant’s credit. She told her mother that the accused had tried to get her to drink his alcohol without mentioning that she had started the conversation about alcohol. She claimed to have climbed on a ladder to get the basketball down when it got stuck but the accused and her sister both say that her sister got it down by throwing another ball at it. 83 The complainant’s account of the accused locking her bedroom door is implausible. Locking the door would not have prevented someone noticing her absence and come looking. The recklessness of doing in the bedroom what is alleged defies belief. 84 Mrs Powell submitted that the prosecution has failed to prove its case in respect of either charge and the accused should be acquitted. Cross admissibility 85 It is not disputed that there is cross admissibility between the two counts. It is in my view permissible to reason that the allegations in one count make the other less unlikely. The allegations in respect of count 1 make it less improbable that the allegation in count 2 is isolated and has happened out of the blue. Likewise, vice versa. Each is brazen, if in slightly different ways. The probative weight of each outweighs the impermissible ‘bad person’ reasoning. The two can be kept sufficiently separate and distinct. The requirements of section 39P of the Evidence Act have been met. Uncharged Acts 86 It is not entirely clear what acts alleged to have been committed by the accused attract the description of uncharged discreditable conduct but I identify the following:- • The offer of alcohol -- 15 of 22 -- [2024] SADC 89 14 • Questions about the complainant’s boyfriend and the whereabouts of the bedroom • Entering the complainant’s bedroom and locking the door • Touching the complainant while playing basketball 87 I have borne in mind the requirements of s 34P in relation to these allegations. I find that they meet the requirements of the section. Motive to lie 88 It is suggested that the complainant might have at least exaggerated the events of the night because she felt uncomfortable in the accused’s company. The offer of alcohol and undue questioning about, and disclosure of, private matters may have caused her discomfort. It is appropriate to consider whether the complainant had a motive to exaggerate or even to lie, but there is, of course, no onus upon the accused to raise, much less prove, a motive for her to lie. The absence of a motive to lie does not strengthen the Crown case. It is neutral. Lies can be told for no discernible reason. Baptiste v R.33 The prosecution bears the burden of proving its case beyond reasonable doubt. Complaint 89 The complainant’s report to her mother on the night of the alleged offending is admissible only for purposes set out in s 34M of the Evidence Act. 90 It may be used to demonstrate how the allegations first came to light (ss (4)(a)(i)). It may be used to demonstrate consistency of conduct on the complainant’s part, that is demonstrating that a complaint was made when it might be expected to have been made (ss (4)(a)(ii)). 91 Evidence of complaint may not be used as evidence of the truth of the allegations (ss (4)(b)). 92 There may be varied reasons why the alleged victim of a sexual offence has made a complaint at a particular time to a particular person. It is not unusual or unreasonable that the complainant in this case might complain on the night to her mother rather than at another time to another person. (ss (4)(c)). (Kendall v R).34 Previous inconsistent statements 93 In her police statement and her evidence, the complainant said that in her bedroom the accused pulled his zipper half way down. It is an agreed fact,35 that in 33 [2023] SASCA 70. 34 [2024] SASCA 54. 35 Exhibit P10, para 5. -- 16 of 22 -- [2024] SADC 89 15 an affidavit sworn on the 4th July 2024 the complainant said that she had told her mother that the accused had his hand on his zipper. 94 A previous inconsistent statement may not be used as evidence of the truth of its content. Reliance must be placed on the evidence in court for that purpose. A previous inconsistent statement may only be used, if appropriate, to adversely affect the credit of the relevant witness. Good character 95 Although defence counsel did not submit I should regard the accused’s evidence that he has never been in trouble with the police as evidence of his good character, I address that question. 96 If evidence has been given of an accused’s good character King CJ proposed in R v Trimboli 36 that juries should be directed that such evidence may be used as a factor affecting the likelihood of an accused committing the crime charged and as bearing positively on their credit. His Honour added that it may be appropriate to remind the jury that people do commit crimes for the first time and evidence of good character cannot prevail against convincing evidence of guilt. 97 Authorities have tended to draw a distinction between evidence of good character on the one hand and evidence simply to the effect that an accused has no conviction (Paulic Bednikov37 per Doyle CJ, and R v Baker,38 per Nyland and Bleby JJ). 98 The facts of Bednikov supra bear some similarity to the present case. In that case the accused said that he had no convictions. In a trial of murder his brother gave evidence that he had never seen the accused ‘get angry or very upset, fly off the handle, lose control, anything like that’. 99 The trial judge did not remind the jury of the brother’s evidence. In respect of the absence of convictions the trial judge said ‘…That is to his credit, so you can give such weight as you think fit’. Speaking of the trial judge’s direction, Doyle CJ said:- ‘…it is in my opinion that in the light of the very limited evidence given, it cannot be said that the judge was obliged to do more than he did. As the trial judge said in his report to this Court, the establishment of good character usually requires evidence about the good general reputation of the accused. A direction to the jury that they should take into account the good character of the accused, in assessing credibility and also the question of whether the accused is the sort of person who might have committed the crime charged, is a significant thing. Such a direction should not be given as a manner of course. And to say that it must be given simply because the accused has no previous convictions is, in my opinion, to attenuate undesirably the basis for the giving of such a direction. I consider that the judge was entitled to take the view that on the slender evidence given, a full character 36 (1979) 21 SASR 577 at 578. 37 (1997) 95 A Crim R 200 at 208-209. 38 (2000) 78 SASR 103 at 119-121. -- 17 of 22 -- [2024] SADC 89 16 direction, of the kind usually given, was not called for. Nor do I consider that authority required him to give one.’39 100 Olsson J spoke in similar terms.40 101 In the light of the authorities, I regard the accused’s absence of convictions as being to his credit. I do not give myself the fuller direction recommended in Trimboli. Consideration 102 If the complainant’s evidence is accepted beyond reasonable doubt then in my view the two elements of both charges have been proved. 103 In each case it is alleged that the accused communicated with the complainant. She was 14 at the time. In respect of count 1, the complainant said that the accused asked her if she had a boyfriend, he asked her if he had ever licked her ‘thing’, he asked her if she would have sex with him. He said ‘lets do it in your room’. In respect of count 2, the complainant said that the accused came into her bedroom and locked the door. He said ‘lets have it’ while partly undoing the zipper on his pants. 104 In respect of each count there is evidence from which it might be concluded that the accused intended to make the complainant, aged 14, amenable to sexual activity while she was still under 17, that is to engage in or submit to sexual activity (R v Barrie).41 105 I found the complainant to be an impressive witness. She gave her evidence in a straightforward manner, both in her police interview and in her evidence in court. There was about her evidence a credible escalation of behaviours by the accused. She said he began by engaging her in conversation about innocuous matters such as sport and school. He offered her some of his alcohol. He then asked more personal questions about whether she had a boyfriend and where her bedroom was. He asked her if her boyfriend had ever licked her ‘thing’ then, finally in respect of count 1, he asked her if she would have sex with him in her bedroom. She volunteered that she was surprised that no one seemed to have overheard what he was saying. 106 In respect of count 2, the complainant said that the accused’s behaviour escalated further by him partly pulling down his zipper while repeating his suggestion of sexual activity. The allegation is moderate in the sense that she does not suggest that the accused engaged in any explicit sexual act, nor does she suggest that he persisted in any way when she refused and suggested that they go back to the basketball. 39 208-209. 40 Page 222. 41 (2012) 218 A Crim R 448: [2012] SASCF 124. -- 18 of 22 -- [2024] SADC 89 17 107 The complainant’s credit is enhanced by her prompt and consistent complaint to her mother. 108 In my view the complainant’s credit is not adversely affected by the minor inconsistency to be found in her later affidavit when she says she reported to her mother that in the bedroom the accused merely touched his zipper rather than pulling it down. Significantly her mother reports the complainant as saying that the fly was pulled down.42 109 In cross-examination, the complainant appeared to directly answer questions put to her. 110 There is some support for the complainant’s evidence in the CCTV footage. The complainant said that the accused was at times very close to her. The CCTV footage bears that out, at least when both of them were on the patio. The complainant said that the accused was also close to her when they were in the basketball area which is not caught by the camera. On camera however, he is seen very close to her on a number of occasions. He hugs her once and touches her on other occasions. On several occasions, he leans his head in towards her and speaks closely to her. 111 I bear in mind that there is a risk involved in viewing the footage with the complainant’s evidence in mind. The men who were present did not notice anything inappropriate about the accused’s interaction with the complainant, but the accused’s physical closeness to her is quite evident. Her mother was not in the patio at the relevant time. She was indoors watching the TV. 112 I do not think the evidence of the complainant’s mother hearing the bedroom lock engage materially assists the complainant’s evidence. I do not reject E.O’s evidence, but there is the possibility that the noise was from the toilet lock. That topic was left a little unclear. 113 I also allow for the possibility that the complainant’s sister heard reference to the bedroom in a different context than from the accused on the patio. Again, I do not reject her evidence but I do not use it to bolster the complainant’s evidence. 114 I bear in mind that the complainant’s allegations involve very brazen conduct by the accused. To have had such suggestive conversations with her when so many people were in the vicinity ran the great risk of detection. So too though is the undoubted offering of alcohol to the complainant. In doing what he knew to be wrong the accused took the risk that the complainant’s father might notice, or the complainant herself might tell her father. He was only metres away. That danger was not realised. No one remarked on it. The complainant declined the drink but said nothing about it to anyone. The offering of the alcohol preceded the allegations of unlawful communications. 42 T83. -- 19 of 22 -- [2024] SADC 89 18 115 Just as the allegations of unlawful communications involve the risk of detection, so does the alleged proposition of the complainant in her locked bedroom. I accept Mrs Powell’s submissions that there was considerable risk that locking the bedroom door would not prevent people from coming to investigate. 116 On the other hand, no one had noticed the offer of the alcohol and no one had seen anything unusual about the physical closeness between the accused and the complainant. No one had noticed, and the complainant had raised no alarm. Her coming into the bedroom might have been misread as some sort of acquiescence. 117 The accused’s evidence was not satisfactory or credible in material respects. I do not overlook that English is not his first language, but he spoke reasonably clearly and only occasionally sought assistance from the interpreter. 118 The accused was unable to explain how, within 35 minutes43 of first speaking to the complainant, whom he knew to be a schoolgirl, he offered her some alcohol. He acknowledges now that what he did was wrong but he does not, and could not credibly, claim that he did not know that at the time. At the same time, 9:05 pm, the accused is seen touching the complainant’s cheek and putting her hand on his cheek. 119 The accused cannot credibly account for why it was necessary to speak so closely to the complainant. His claim that the thirteen to fifteen second close conversation he had with her before he went to the toilet was simply to tell her to take his shot while he went to the toilet is not credible. Nor is his evidence that the raised eyebrows towards her as he opened the laundry door was meant simply to encourage her to have a good shot. 120 The accused’s explanation for his going to the complainant’s bedroom is particularly unconvincing. The floorplan of the house illustrates what he had to do to get there. He had entered the house via the laundry. His shortest exit from the house was also via the laundry. As he left the toilet the laundry door was immediately on his left. However, he walked past that door and crossed a hallway to get to the complainant’s bedroom door. His explanation for doing that is effectively curiosity. He denies asking the complainant earlier about where her bedroom was. On his account, he had no idea about the purpose of the room across the hallway. He said that he went there because the light was off when he went to the toilet but on when he came out. That is likely to be true. The complainant said that she went to her bedroom to check that he had not gone into it. 121 In my view, mere curiosity is a less likely explanation for his going to the complainant’s bedroom than his going there in the hope of meeting up with her. Her going to her bedroom might have led him to believe, erroneously, that she might be amenable to what he had proposed. 43 8:32 pm to 9:05 pm. -- 20 of 22 -- [2024] SADC 89 19 122 I bear in mind that the timeframe for what happened in the bedroom is very short. It is of the order of two minutes. But the short conversation that the accused says he had with the complainant is likely to have taken about the same time as the short conversation she says took place. 123 I address several further discrete topics. The fist relates to the evidence of the accused going back into the house after the basketball game had finished and the complainant had gone inside. 124 The prosecution urges that the accused returned to the house for the purpose of looking for the complainant. I observe that it may also be that he was going to see how things stood with the complainant after her rejection of his proposal. 125 However, the defence urges that no adverse inference should be drawn about the accused going back into the house. There was evidence that on at least one such occasion he was doing origami with the complainant’s sister. I add that it may be that with a basketball game being over, he was at something of a loss to know what to do. He might have just wandered in. 126 I do not draw any inference against the accused by reason of his going back into the house. 127 I reject the defence suggestion that the complainant’s discomfort at the accused’s innocent conversations or the offer of alcohol may have caused her to exaggerate the events of the night. I think that those minor matters are unlikely to have led the complainant to say what she did. What she alleges is no mere exaggeration of the events of the night. It can hardly be characterised as anything other than lies. 128 However, having rejected the suggested motive to lie, I redirect myself about such rejection not assisting the crown case. It is neutral. Lies can be told for no discernible reason. The prosecution bears the onus of proving its case beyond reasonable doubt (Baptiste supra). 129 I address the submission Mrs Powell made about the significance of the complainant returning from her bedroom to continue the game of basketball with the accused. I acknowledge that there is some force in Mrs Powell’s submissions. At first blush it is a little surprising that the complainant resumed playing basketball with the accused if he had been behaving as she says he did. 130 On the other hand, both the accused and she left the basketball game before it was finished. No winner had yet been determined. If the complainant were to unilaterally absent herself from the game she might have had to come up with some explanation. She might well have thought it was better to finish the game and then make her exit. I do not regard the complainant’s return to the game as negating the truth of what she alleges. -- 21 of 22 -- [2024] SADC 89 20 131 Finally, I address the submissions Mrs Powell made that the complainant’s credit is damaged because she gives a different account from her sister and the accused about how the basketball was dislodged from the roof when it was thrown up there. Mrs Powell submitted that in saying that she got the ball down from the roof using the ladder, the complainant has said something that simply did not happen. Both the accused and her sister says that her sister dislodged the basketball by throwing another ball at it. I do not draw an adverse inference against the credit of the complainant from that account. The matter is of such peripheral concern that it does not warrant any weight being given to it. 132 I bear firmly in mind that the accused’s guilt is not proved by the complainant’s account being more likely than his, or her evidence being preferred over his.44 Even if I rejected the accused’s evidence, his guilt is not thus proved. It may only be proved if I am satisfied beyond reasonable doubt of the complainant’s account, that is, her accounts, separately considered, of the two allegations. If, in the face of two conflicting accounts, I am unable to find where the truth lies, I will not be so satisfied.45 133 For the reasons given, I do reject the accused’s evidence about each allegation. For the reasons given, I am satisfied beyond reasonable doubt of the complainant’s account of both allegations. Verdicts Count 1 – Communicating with the Intention of Procuring a Child for Sexual Activity – Guilty. Count 2 – Communicating with the Intention of Procuring a Child for Sexual Activity – Guilty. 44 Liberato v R (1985) 159 CLR 507: [1985] HCA 66. 45 R v Calides (1983) 34 SASR 355, R v Lavery (2013) 116 SASR 242: [2013] SASCFC 46. -- 22 of 22 --