[2024] SADC 102

Prosecution: R Counsel: MR M FOUNDAS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: JUAN CARLOS OSPINA SANCHEZ Counsel: MR P TOTHILL AND MR C POURAS - Solicitor: EDGE LAW Hearing Date/s: 24/06/2024 to 27/06/2024, 01/07/2024 File No/s: DCCRM-22-016673 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 SANCHEZ [2024] SADC 102 Judgment of his Honour Judge Durrant 6 September 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT The accused is charged with five counts of indecent assault and one count of rape - trial by judge without a jury. Verdict: Not guilty of Counts 1 to 6. Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13A, 34N; Criminal Law Consolidation Act 1935 (SA) ss 46, 47, 56, referred to. BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v Western Australia [2008] 232 CLR 438; Aiken v The Queen [2014] NSWCCA 213; Fitzgerald v Kennard (1995) 38 NSWLR 184; R v Court [1989] AC 28; Boughey v The Queen (1986) 161 CLR 10; M, B v Police (2019) 134 SASR 575; DPP v Morgan [1975] 2 All ER 347; R v Kimber [1983] 3 All ER 316; R v C, M (2014) 246 A Crim R 21;; R v Thompson [2018] SASCFC 104; R v Murphy (1988) 52 SASR 186; R v Turvey (2017) 127 SASR 425; R v Rahmanian [2010] SASC 137; R v Blayney (2003) 87 SASR 354; Higgs v The Queen (2011) 111 SASR 42; R v Bland [2001] SASC 57; R v Ball (1991) 56 SASR 126, 127; R v Moores (2017) 128 SASR 340; State of South Australia v Crossley [2020] SASFC 128, considered. -- 1 of 32 -- -- 2 of 32 -- R v SANCHEZ [2024] SADC 102 Introduction 1 During 2019, the accused Juan Carlos Ospina Sanchez worked as a dance teacher at the Latino Grooves Dance Studio on King William Street, Adelaide.1 2 The complainant Victoria Galea attended some of the group classes conducted by the accused that year. 3 In August 2019, the accused and the complainant entered, as a professional and amateur couple, the ‘World Salsa Solo’ dance competition to be held on 5, 6, 7 and 8 December 2019, at the Brisbane Convention and Exhibition Centre.2 4 Between 6 August 2019, and 4 December 2019, to learn and practice a competition routine choreographed by the accused, the complainant attended 16 private lessons and a performance at the studio.3 The complainant and the accused subsequently performed that routine together at the Brisbane competition. 5 The prosecution alleges the accused, during private lessons two, three, four and five, and once during one of lessons seven to ten, indecently assaulted the complainant and, during lesson six, raped her.4 6 The accused elected to be tried by judge without a jury.5 7 The complainant was the crucial witness at trial. The prosecution case relied on the acceptance of her evidence, beyond reasonable doubt. 8 While not obliged to, the accused also gave evidence. He denied each of the indecent assaults and that he had raped the complainant. He said he and the complainant had engaged in consensual sexual activity during their private lessons, but they stopped that activity after the tenth lesson. 9 Even if I do not accept that evidence of the accused, it is still for the prosecution to prove its case beyond reasonable doubt. Rejection of the evidence of the accused would not prove the prosecution case, nor make it stronger. 10 It is not enough for the prosecution to show mere suspicion of guilt or that an accused is probably guilty. An accused is not to be convicted unless guilt has been proved beyond reasonable doubt. 1 Exhibit P1 Agreed Facts at [1]. 2 T28.32-36; T28.5-9. 3 Exhibit P1 Agreed Facts at [3]. 4 Information filed 10 February 2023 (FDN11). 5 Juries Act 1927 (SA), s 7. -- 3 of 32 -- [2024] SADC 102 2 11 My reasons for verdict are set out below.6 The elements of indecent assault 12 To prove indecent assault in this case, the prosecution must prove three elements.7 13 First, that the accused touched the complainant. 14 In that respect, no particular degree of force or contact is required. The slightest touch is enough. 15 The prosecution must prove the accused intended to touch the complainant. 16 The prosecution must prove the complainant did not consent to the touching. In that regard, consent means ‘free and voluntary agreement’ to the alleged indecent assault. 17 In deciding whether the prosecution has proved the complainant did not consent to the touching, I must consider her evidence, as well as all the circumstances of the alleged offence, including what the accused and the complainant did before, during and after the alleged act. 18 In assessing the circumstances of the alleged offences of indecent assault, I must keep in mind there are no typical or normal responses to non- consensual sexual activity.8 I must not regard the complainant as having consented merely because she was not physically injured in the course of or in connection with the alleged sexual activity or because she wore particular clothing or because on that or some other occasion she freely and voluntarily agreed to sexual activity.9 19 Non- consensual sexual activity can occur between people who know each other, and it can occur in many different circumstances.10 20 I must also keep in mind that trauma may affect people differently. That means some people may show obvious signs of emotion or distress when giving evidence about an alleged sexual offence, while others may not.11 The presence or 6 Sufficient reasons must be given to properly explain my verdict but I am not obliged to express all matters, ‘which necessarily have to be stated to a Jury, unfamiliar with the basic principles of law’; BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34 [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia [2008] 232 CLR 438; and Aiken v The Queen [2014] NSWCCA 213. 7 Criminal Law Consolidation Act 1935 (SA) s 56; Fitzgerald v Kennard (1995) 38 NSWLR 184; R v Court [1989] AC 28, 47-48; Boughey v The Queen (1986) 161 CLR 10, 26; [1986] HCA 29; M, B v Police (2019) 134 SASR 575; [2019] SASC 58, [124]; DPP v Morgan [1975] 2 All ER 347; R v Kimber [1983] 3 All ER 316; M, B v Police (2019) 134 SASR 575; [2019] SASC 58, [120]-[123]; R v C, M (2014) 246 A Crim R 21; [2014] SASCFC 116, [17]-[19], [29]; R v Thompson [2018] SASCFC 104, [83]. 8 Evidence Act 1929 (SA), s 34N. 9 Ibid. 10 Ibid. 11 Ibid. -- 4 of 32 -- [2024] SADC 102 3 absence of emotion or distress therefore does not necessarily mean that a complainant has not told the truth about an alleged sexual offence.12 21 Ultimately, I must look at all the evidence and decide whether the prosecution has proved, beyond reasonable doubt, the complainant did not freely and voluntarily agree to be touched by the accused in the way alleged. 22 Second, the prosecution must prove the accused knew or was recklessly indifferent to the fact the complainant did not consent to the touching. 23 That requires my consideration of the accused’s state of mind at the time of the alleged touching. 24 As with the first element, I must consider the circumstances of the alleged offence, including what the accused and the complainant did before, during and after the alleged acts. My focus must be on the effect of those circumstances on the accused’s state of mind. 25 The onus is on the prosecution to prove the accused had known or had been recklessly indifferent to the fact the complainant did not consent. 26 Third, the prosecution must prove the touching occurred in circumstances of indecency. 27 For that purpose, touching is indecent if it involves a sexual connotation. In deciding whether an accused’s conduct is indecent, I must apply community values. 28 I must decide whether I am satisfied, beyond reasonable doubt, as a matter of community standards, the touching was indecent looking at all the circumstances, including the part of the body touched, and the part of the body used to do the touching. The elements of rape 29 To prove the offence of rape in this case, the prosecution must prove three elements.13 30 First, that the accused engaged in sexual intercourse with the complainant. 31 The sexual intercourse alleged is digital penetration of the complainant’s vagina by the accused’s finger. 12 Ibid. 13 Criminal Law Consolidation Act 1935 (SA) s 46(2), s 47; R v Murphy (1988) 52 SASR 186, 200 (quoted with approval in R v Turvey (2017) 127 SASR 425; [2017] SASCFC 28, [29]); R v Turvey (2017) 127 SASR 425; [2017] SASCFC 28, [34]-[37]; R v Rahmanian [2010] SASC 137, [32]; R v Blayney (2003) 87 SASR 354; [2003] SASC 405; Higgs v The Queen (2011) 111 SASR 42; [2011] SASCFC 108, [36] (David J); R v Bland [2001] SASC 57, [16]-[17]; R v Ball (1991) 56 SASR 126, 127; R v Moores (2017) 128 SASR 340; [2017] SASCFC 95, [140]. -- 5 of 32 -- [2024] SADC 102 4 32 Second, the prosecution must prove the complainant did not consent to such sexual intercourse. That requires consideration of the complainant’s state of mind. 33 In that respect, ‘consent’ means free and voluntary agreement to the alleged act of sexual intercourse. 34 In deciding whether the prosecution has proved the complainant did not consent to the alleged sexual intercourse, I must consider the evidence of the complainant as well as all the circumstances of the alleged offence, including what the accused and the complainant did before, during and after the alleged act. 35 In the same way as I must approach the alleged indecent assaults, in assessing the circumstances of the alleged rape, I must keep in mind that there are no typical or normal responses to non- consensual sexual activity.14 36 The complainant is not to be regarded as having consented to the alleged sexual intercourse merely because she was not physically injured in the course of, or in connection with it or because she had worn particular clothing or because on that or some occasion she had freely and voluntarily agreed to sexual activity.15 Non-consensual sexual intercourse can occur between people who know each other, and it can occur in many different circumstances.16 37 I must also keep in mind in respect of the alleged rape that trauma may affect people differently. That means some people may show obvious signs of emotion or distress when giving evidence about an alleged sexual offence, but others may not.17 The presence or absence of emotion or distress does not necessarily mean a person is not telling the truth about an alleged sexual offence.18 38 Ultimately, I must look at all the evidence and decide whether the prosecution has proved beyond reasonable doubt the complainant did not freely and voluntarily agree to the sexual intercourse identified in the charge. 39 Third, the prosecution must prove the accused knew or had been recklessly indifferent to the fact the complainant did not consent to sexual intercourse. That requires consideration of the accused’s state of mind at the time of the act of sexual intercourse. 40 As with the second element of rape, I must consider the circumstances of the alleged offence, including what the accused and the complainant did before, during and after the alleged act. My focus must on the effect of those circumstances on the accused’s state of mind. 14 Evidence Act 1929 (SA), s 34N. 15 Ibid. 16 Ibid. 17 Ibid. 18 Ibid. -- 6 of 32 -- [2024] SADC 102 5 41 There are three ways the prosecution can prove the accused had been recklessly indifferent. 42 First, an accused is recklessly indifferent if aware of the possibility that the complainant might not be consenting to the act, or had withdrawn consent to the act, they decided to proceed regardless of that possibility. 43 Second, an accused is recklessly indifferent if aware of the possibility the complainant might not be consenting to the act, or had withdrawn consent to the act, they failed to take reasonable steps to ascertain whether the complainant did in fact consent, or had in fact withdrawn consent, to the act before deciding to proceed. 44 Third, an accused is recklessly indifferent if they did not give any thought as to whether the complainant was consenting to the act or had withdrawn consent to the act before deciding to proceed. The evidence 45 The evidence in this case was comprised of the oral testimony of witnesses, exhibits, and facts agreed.19 46 The prosecution called the complainant Victoria Galea and the investigating police officer, Detective Brevet Sergeant Sam Stevanovic. They were each cross- examined by the defence. 47 The accused Juan Carlos Ospina Sanchez gave evidence in his own defence. He was cross- examined by the prosecution. He also tendered several exhibits.20 General directions 48 While it is not necessary to direct myself in the same way a jury would be directed, I have reminded myself of the general directions noted below and have set out throughout these reasons some further directions applicable to this case. 49 To decide this case, I must find facts and draw inferences from the evidence led at trial, as well as apply the law to the facts found. 50 I must bring an open and unbiased mind to bear, view the evidence clinically and dispassionately, and not let emotion enter my decision-making. 51 Both the prosecution and accused are entitled to verdicts free of partiality or prejudice, favour or ill-will and according to the evidence. 52 As in any criminal case, the prosecution always bears the onus of proving the guilt of the defendants. The accused does not have to prove anything. 19 Exhibit P1. 20 Exhibits D2, D3, D4 and D5. -- 7 of 32 -- [2024] SADC 102 6 53 The standard of proof of the prosecution case is proof beyond reasonable doubt. The accused cannot be found guilty unless the evidence I accept satisfies me beyond reasonable doubt of their guilt. 54 The accused is presumed innocent unless and until the evidence I accept satisfies each element of the charges beyond reasonable doubt. 55 Where I refer to something which must be or has been proved or established, or that I must be or have been satisfied of something; that thing must be or has been proved, or I must be or have been satisfied, beyond reasonable doubt. 56 I make my findings beyond reasonable doubt, unless specified otherwise. 57 If the evidence fails to satisfy me beyond reasonable doubt of any or all offences charged, the defendant remains presumed innocent. 58 The burden of proof is always on the prosecution. I must consider the whole of the evidence relevant to a count in determining whether that count is proven beyond a reasonable doubt. 59 The assessment of witnesses involves a consideration of whether the witness is honest; whether the witness was trying to tell the truth. 60 If satisfied the witness is honest, that assessment then must involve consideration of whether the evidence of the witness was reliable and accurate. 61 In the assessment of the witness's evidence I am entitled to have regard to my experience of life, my dealings with other people and common sense. 62 I am not bound to accept all a witness's evidence or to reject all of it. I am entitled to reject some parts and to accept other parts. 63 I am entitled to consider the manner of a witness when they gave evidence and how the witness stood up when being cross-examined. 64 I must keep in mind the different backgrounds, age, personal qualities and characteristics of witnesses and the impact on memory of the elapse of time. 65 As the complainant is the critical witness and as the prosecution must prove the accused guilty, the prosecution has to convince me her evidence is true and accurate. It is not for the defence to show she had been wrong or had been lying. 66 There can be many reasons why a witness may lie, and I have not speculated about those. I have not treated the complainant’s evidence as more credible, or more believable, just because there may be no evidence that provides a reason why she might be lying. I have not concluded from the absence of any such evidence she had no reason to lie and was telling the truth. -- 8 of 32 -- [2024] SADC 102 7 The Latino Grooves Dance Studio 67 Commencing in late 2018, the complainant attended group dance classes at the Latino Grooves Dance Studio on King William St.21 The studio was in a basement and was accessible through a door at street level and down some stairs.22 68 The studio comprised a reception at the bottom of the stairs enclosed by an internal wall and a separate large open space area for dancing. Male and female bathrooms were located directly from the dance floor.23 Comfortable seating and metal benches were placed around and on the walls of the dance space. Two of those benches were placed on the wall separating the studio and reception area.24 69 Around the time she commenced going to classes, the complainant purchased a 12-month membership. That allowed her, during 2019, to attend regular group classes, designated as beginner, intermediate or advanced. 25 Classes were held in the evening. Group lessons were conducted by both a male and a female teacher. The Arkaba performance 70 In late 2018, the accused moved from Melbourne to Adelaide to commence, in January 2019, work as a dance teacher at Latino Grooves. Around that time, to promote the studio and himself, he performed for students and others at the Arkaba Hotel. He said that was where he first met the complainant.26 71 The complainant remembered seeing the accused perform at an event outside of Latino Grooves, but she could not remember when, or where the venue was. She accepted it could have been at the Arkaba Hotel.27 72 The complainant said at that performance she learnt the accused was a dancer of international renown. She had thought to herself, ‘wow, he was amazing’.28 The group classes at Latino Grooves 73 In 2019, the complainant was employed as a nurse. Her work schedule meant she could only attend group classes irregularly. 74 The complainant commenced at Latino Grooves in a beginner group.29 She recalled a discussion about dance etiquette and hand placement and what was appropriate.30 21 T21.2- 23. 22 T22; Exhibit D2 was a plan of the studio. 23 Ibid. 24 Ibid. 25 T25.21-30. 26 T160.29; T162.1-5. 27 T55.13-19. 28 T55.1-10. 29 T23.19-20.. 30 T23.27-37. -- 9 of 32 -- [2024] SADC 102 8 75 By early 2019, she had progressed to an intermediate group. The accused had been the male instructor. The complainant considered him to be a good teacher. 76 By early August 2019, the complainant had progressed to an advanced level.31 She loved dancing and was ambitious to one day be a professional.32 The Brisbane competition and the private lessons 77 In about August 2019, Latino Grooves sent a newsletter to students about a pro-am dance competition to be held in Brisbane in December that year. 78 That competition provided the opportunity for amateur dancers like the complainant to pair with a professional dancer like the accused. The complainant asked the accused if he would partner her. He agreed. Other students made similar requests and the accused agreed to partner them also.33 79 The accused choreographed a performance for his pairing with the complainant. To learn and rehearse it, the complainant agreed with Latino Grooves to purchase a block of private lessons with the accused at the studio.34 80 Given her work schedule, the complainant could not commit to a regular time for those ‘privates’. The complainant and accused would therefore agree a time for the next lesson at the end of the last or by direct message between lessons. 81 The complainant thought her block purchase of private lessons had totalled 10. It was an agreed fact she had committed to a block of 12 private lessons and had performed the routine once with the accused during that time at Latino Grooves. 82 It was a further agreed fact the complainant attended four ‘extra lessons’ after that block of 12 had completed. 83 The complainant could not recall attending lessons eleven and twelve or any of the extra lessons.35 She considered she had only ten lessons in total. 84 Those 16 lessons and the ‘performance’:36 …took place on the below date and times relating to private appointments and extra lessons. 12 Private paid lessons/performance a. Victoria Galea 1/12 6 August 2019 at 3.30pm b. Victoria Galea 2/12 13 August 2019 at 4.00pm 31 T24.2-24. 32 T25. 1- 4. 33 T29.9.3-12; T30.4-13. 34 Ibid. Exhibit P1 Agreed Facts, [2]. T30.19-21; T29.10-35. 35 T.59.34-T60.2. 36 Ibid at [4]. -- 10 of 32 -- [2024] SADC 102 9 c. Victoria Galea 3/12 20 August 2019 at 4.00pm d. Victoria Galea 4/12 31 August 2019 at 3.00pm e. Victoria Galea 5/12 4 September 2019 at 11.30am f. Victoria Galea 6/12 20 September 2019 at 11.00am g. Victoria Galea 7/12 25 September 2019 at 11.00am h. Victoria Galea 8/12 2 October 2019 at 11.30am i. Victoria Galea 9/12 10 October 2019 at 5.00pm j. Victoria Galea Performance 12 October 2019 at 9.00pm k. Victoria Galea 10/12 17 October 2019 at 5.00pm l. Victoria Galea 11/12 24 October 2019 at 5.00pm m. Victoria Galea 12/12 31 October 2019 at 12.00pm Extra lessons n. Victoria Galea 14 November 2019 at 5 pm o. Victoria Galea 20 November 2019 at 11.00am p. Victoria Galea 27 November 2019 at 10.30am q. Victoria Galea 4 December 2019 at 11.00am 85 At the performance on 12 October 2019, the complainant and the accused, in front of other students and staff, performed their choreographed dance routine, wearing their competition costumes.37 86 The complainant said her private lessons had cost $200 each. It was an agreed fact she paid, by five instalments, $1200 for 12 private lessons:38 The complainant Victoria Galea made the following payments to Latino Grooves with respect to 12 private lessons in the amounts and dates listed below: a. $200 paid on 6 September 2019 b. $200 paid on 23 October 2019 c. $200 paid on 4 November 2019 d. $200 paid on 15 November 2019 e. $400 paid on 2 December 2019 37 See Exhibit D5. 38 Agreed Fact 6. -- 11 of 32 -- [2024] SADC 102 10 87 It was the practice of the accused, and other teachers at Latino Grooves, to video record a part of each private lesson and provide it to the student so they could practice further before the next lesson. The first private lesson on 6 August 2019 88 The complainant said the first lesson on 6 August 2019, at 3.30pm, had been uneventful: ‘we started the routine, I learnt a lot and that was it’.39 The accused recorded a short video of part of that lesson.40 The complainant said she had been impressed, had enjoyed the lesson and the accused was a very good teacher.41 89 The accused said the first lesson had commenced with a discussion about competing in Brisbane.42 He said the complainant had told him, ‘I saw you perform at the Arkaba and I thought to myself I want to fuck that black guy’.43 90 The accused said he had not known what to say in response and had not known how to take that comment. He said he thought ‘my professionalism was on the line’ as that had been a ‘clear open invitation’ for sexual interaction.44 He said he had not said anything in response as he had a class to start with his new client and he had just got on with the lesson with the complainant.45 91 After the lesson finished, the accused said he had started to think ‘okay well, she is interested in me. But something could happen’.46 92 When asked what he meant by ‘my professionalism was on the line’ he explained: “…well from my own experience I don’t get those kind of comments from a woman towards me. So when I get that comment I’m thinking ‘Okay well, she interested in me’. It’s a shock for me. At that point I’m sort of thinking ‘Should I be thinking something else from this’ and then I stopped there”. 93 The complainant said in cross- examination she had not said anything like that to the accused. She denied having ever being flirtatious with him.47 The second lesson – 13 August 2019 94 The complainant said about the second lesson on 13 August 2019, at 4pm, it had started normally and she had learnt a lot, same as in the first lesson.48 39 T30.37-38. 40 Exhibit D4. 41 T31.1-3. 42 T166.26-27. 43 T166.26-32. 44 T176.22-24; T217.13-15. 45 T166-T167.1; T217.9-17. 46 T217.21- 28. 47 T66.22. 48 T31.29-30. -- 12 of 32 -- [2024] SADC 102 11 95 She said though that while standing in the middle of the studio waiting for the accused, when he had just pressed play on the music to commence the routine, ‘he walked past me – this is when he grabbed my bottom with his hand’.49 96 The complainant elaborated the accused grabbed her right bum cheek for 3- 5 seconds and squeezed. She said she was ‘in shock’ and experienced ‘disbelief’.50 Those are the acts said to constitute the Count 1 – indecent assault. 97 She said she did not say anything to the accused about that. She said there was no reason for him to touch her that way as part of the choreography. The complainant said she did not tell anyone else about what happened after that lesson. 98 The complainant said after that grab and squeeze the music had started and they had gone on with the choreography, like nothing had ever happened. 99 The complainant was asked ‘was there any reason you didn’t say anything to him’. She said: ‘I was shocked. It was like an out-of-body experience. I did not know what to say, yeah. My teacher had crossed a boundary and I was scared’. 100 The accused said when she got home she messaged the accused to organise the third lesson. She said it crossed her mind not to do so ‘but I thought he was my friend, I thought he was my teacher, I didn’t think it would happen again’.51 101 The complainant said she had received from the accused videos which recorded part of their private lessons. She was played during her cross-examination a video of part of the second lesson.52 102 The video commences with the complainant moving to the centre of the studio and turning to the recording phone placed on the floor against some mirrors on the wall. Music is playing loudly. 103 At 8 seconds in, the accused joins the complainant in the frame. They face each other sideways to the camera. They link hands and assume a dance position. 104 In that position, at about 17 seconds, the accused looks left towards the phone. As he does, the complainant moves her head forward 10-15cm tilting at her neck. The complainant touches her lips and face onto the turned right side of the neck and lower cheek of the accused. He does not move his neck, head, or body before or after that movement of the complainant. He shows no physical sign he is aware of the movement or the touch of the complainant on his neck and cheek. 105 As the mouth and nose of the complainant touch the neck of the accused under his right chin and ear, the complainant turns her body slightly, moves her 49 T31.29-38. 50 T32.8-10. 51 T34.5-8. 52 Exhibit D4. -- 13 of 32 -- [2024] SADC 102 12 left leg. She takes two small stutter-like steps with both feet and moves closer to the mirror. The accused sways slightly. 106 When the complainant viewed that part of the video she visibly reacted in the witness box. My observation was that she was considerably surprised.53 107 The following exchange with defence counsel took place:54 Q. Stop there. Can you explain to us what you’re doing there? A. I have no idea. Q. You’re trying to kiss him, aren’t you? A. My face is on his face, I don’t recall doing this. Q. But it plainly looks like you’re kissing him or trying to kiss him, correct? A. Yes. 108 The complainant watched the video to that point a second time. She said: ‘To me it looks like he is pulling me in towards him and my head is touching his cheek. I – that’s how I see it. I don’t – if you believe it’s a kiss’. She said: ‘I can assure you I’ve never been attracted to [him]’.55 109 Following that portion, the music pauses at about 21 seconds and recommences at about 27 seconds. The complainant can be seen again to move her head to the accused by tilt of her neck, as he turns his head to face her. Her movement is like that depicted at about 17 seconds. 110 At that point the accused is upright and his body, head and neck are aligned and still. The lips of the complainant are very close to his cheek; it is unclear if they touch. The accused pulls slightly away, breaks his left-hand hold of the complainant’s right hand and points to the phone. He says something but it is not picked up. The complainant was not cross- examined about that part of the video, at about 27 seconds. 111 The accused in his evidence said at the commencement of the second lesson he and the complainant had flirted and complimented the other on their looks. He said the video had been taken at the end of the second lesson and depicted the complainant ‘trying to kiss’ him twice: at 18 and 27 seconds. In cross- examination, he accepted he could not then recall those attempts to kiss. I considered he was commenting on what he could observe. 112 Following the second lesson, the complainant and the accused organised the third private lesson. 53 See my exchange with counsel for the prosecution about that observation at T.305.1-16. 54 T72.13-20. 55 T72.32-34; T75.22; T228.17-21. -- 14 of 32 -- [2024] SADC 102 13 The third private lesson – 20 August 2019 113 The complainant’s evidence about that third lesson was: A. Yeah, so the third lesson, similar to what happened in the second lesson. We were dancing, I was learning the routine. Again, I was standing in the middle of the dance floor waiting for Juan to turn on the music, he walked past me, this time he grabbed me, my bottom, my right bum cheek with his hand for a more prolonged time, time frame. Q. You say 'more prolonged', more prolonged than what. A. So the first instance three to five seconds, this time five to 10 seconds. Q. Did he grab it in the same way as the first time. A. This time more forcefully. Q. Did he say anything when he did that. A. He said that I was very sexy and he wanted to fuck me. Q. And did you say anything in response to that. A. I said 'What are you doing?'. Q. And what did he say, if anything. A. Nothing because the music started and it was like a switch, he would assault me and then instantly flip to being my teacher and so professional. Q. And how would that make you feel when he would switch from having just assaulted to being the professional teacher. A. It made me question myself if it was happening. What, was my mind playing tricks on me? Why was my teacher touching me like that? I was just in disbelief. Q. Did you then start or continue the lesson with him after that touch on the third occasion. A. Yes, yep, it was just like so professional, we would dance and then say goodbye. Q. And after the lesson did you say anything to him about what had occurred. A. No. Q. Why not. A. Again, I was scared. I guess, in a way, I didn't realise the extent of what he was doing, like I didn't realise how bad it truly was, I didn't realise it was assault. Q. You mentioned feeling scared, scared of what or about what. A. Scared that if I said anything to him or to anyone that, one, no-one would believe me. Me, just like a student, compared to him, an international, world renowned artist. -- 15 of 32 -- [2024] SADC 102 14 Yeah, I just, I didn't want to be ostracised, I didn't want to be pushed out of the dance community. I didn't feel, yeah, I didn't feel comfortable saying anything. 114 Those are the acts said to constitute the Count 2 – indecent assault. 115 In cross-examination, the complainant was sure Latino Grooves had by the third lesson asked her for some money for the block of ‘privates’. She said she had kept going back to these lessons because of the money she had paid and because her agreement with Latino Grooves had been ‘non-retractable’.56 116 The accused denied he had touched the complainant during the third lesson as alleged. He said by the third lesson they had been giving each other flirtatious compliments and had been touching and smacking each other on the bottom. 117 The accused said it had been clear to him by the third lesson, given what had been said at the commencement of the first and their subsequent interactions, that the complainant had been attracted to him. 118 Following the third lesson, they organised the fourth. The fourth private lesson – 31 August 2019 119 The complainant was asked why she had gone back for a fourth lesson, given what had happened in the previous two. She said she ‘was just so naïve’, ‘didn’t think he would do it again’ and ‘had paid so much money for these lessons’.57 120 The complainant said the accused had grabbed her bottom in the fourth lesson in a very similar way to the third, with about the same level of aggressiveness.58 Those are the acts said to constitute the Count 3 – indecent assault. 121 The complainant said she had said to the accused ‘what are you doing’? and had got no reply as the music had started and they had continued the lesson. 122 She said her feelings about what had happened were the same as she had felt in the third lesson. 123 The complainant said she had not said anything to the accused or to anyone else after the fourth lesson, about what had happened, for the same reasons she had mentioned in respect of the second and third lessons. 124 The accused denied in his evidence anything of the nature described by the complainant had happened in the fourth lesson. 125 After the fourth lesson, the complainant and the accused organised the fifth. 56 T119.7-31. 57 T35.28-35. 58 T36.1-25. -- 16 of 32 -- [2024] SADC 102 15 The fifth private lesson – 4 September 2019 126 The complainant said in the fifth lesson she had walked in and said hello. She said the accused had replied he had taken some cocaine which had made him horny and he would not be able to continue the lessons, until he felt better. 127 The complainant said she felt disgusted but had no time to say anything as the accused grabbed her firmly by her wrist and pulled her to the male bathroom ‘forcefully’. In the bathroom, she said, the accused had stood at the exit preventing her from leaving, pulled his pants down and told her to suck his erect penis. 128 The accused then, said the complainant, grabbed her hand forcefully to cup his penis and made her rub it for about two minutes. She said ‘no’ and ‘no, I have a boyfriend’, throughout. The complainant said she got her hand free and said, ‘just finish yourself’. At that, the accused stepped aside and she left the bathroom. Those are the acts said to constitute the Count 4 – indecent assault. 129 The complainant said about 10 or 20 seconds later the accused came out of the bathroom and told her to start the lesson. She said she had no time to collect her thoughts; ‘it had been like another world’. She said she just went over to him, said nothing, and the lesson commenced, as if nothing had happened. 130 Asked how she had been feeling at that point, the complainant said, ‘[s]cared, confused, like an out of body experience’. She said she had ‘all these questions. Did it happen? Why me? Did I provoke him?’59 131 The complainant said she had not said anything about that incident to the accused or anyone else afterwards, for the same reasons she had not said anything to anyone after what had happened in lessons two, three and four.60 132 The accused said the fifth lesson had started the same as the others: he had greeted the complainant and when ready to begin they had warmed up by social dancing and had flirted. The accused said in that lesson they had started to kiss and touch genitals and bottoms and that ‘things escalated’.61 133 He said the complainant grabbed his penis inside his pants. He thought he did not want to get caught because it was the practice of Latino Grooves to leave the door of the studio upstairs open. He said he suggested they go to the bathroom. 134 Once in the bathroom, the accused said the complainant pulled his pants down and started to masturbate him as he touched her vagina over the top of her clothes. He said he ejaculated and she left the bathroom and went to the middle of the dance floor. He said he cleaned himself up and went into the studio and started the music and the lesson commenced. 59 T40.31-33. 60 T41.16-21. 61 T176.8-15. -- 17 of 32 -- [2024] SADC 102 16 135 Two days after the fifth lesson, on 6 September 2019, the complainant paid Latino Grooves $200, being her first payment in respect of the 12 private lessons. 136 After the fifth lesson, the accused and complainant arranged the sixth lesson. The sixth lesson – 20 September 2019 137 The complainant said the sixth lesson had started normally with a friendly greeting. About half-way through, said the complainant, the accused had said he was horny and grabbed her by the wrist and pulled her to the benches in the studio area against the wall of the reception area and pushed her onto a bench. 138 The complainant said, as she laid straight and horizontal on those benches, the accused got on top of her, grabbed her wrist and pulled her arms above her head so she was pinned to the bench. She said the accused touched her breasts above and underneath her clothing. She said he inserted his fingers into her vagina. She squirmed, she said, but the accused did not stop when she told him she had a boyfriend and said ‘no’ and ‘stop’. He stopped, she said, when they heard a noise from up the stairs. Those are the acts said to constitute the Count 5 – rape. 139 The complainant said that what happened in the sixth lesson made her feel like she had the other times, but ‘more heightened’.62 She said she had been ‘more scared’ and the incident had involved ‘more disbelief’. She said the accused had, after the incident, gone to the middle of the floor and they had continued the lesson; which had about 15-20 minutes left. 140 The complainant said she did not say anything to anyone after that about what had happened on the bench in the sixth lesson. She said she had sat on her couch and contemplated whether to go back. She said she thought the money spent on the lessons had been a lot and naively thought he would not do anything again and it would just be a professional teacher and student relationship thereafter. 141 In cross-examination, the complainant accepted she had a costume hand- made for the competition. She said she remembered trying it on just once before the competition, at home. She accepted she was depicted in a Facebook post wearing that costume at the studio during the ‘performance’ on 12 October 2019.63 The complainant accepted at about that time she owned beige G-string underwear. 142 The accused said prior to the sixth lesson, the complainant told him her costume had arrived. He said he told her to bring it to the lesson for a dress rehearsal. When she arrived he said he asked her to put it on so she could do two or three routines and ensure she could execute her moves properly. 143 The accused said the complainant, while he sat on the bench, took her clothes, sports bra, and leggings off. He said she sat next to him on the bench with her legs 62 T46.26-27. 63 T108.34-37; T182.35-183.6. -- 18 of 32 -- [2024] SADC 102 17 open. He said she was wearing only a beige G-string. He said as they kissed he placed his hand on her underwear. He said he thought they were going to have sex. 144 The accused said he heard a noise from the stairs and quickly ran up to check if someone was there. He said the complainant had run to the ladies toilet. 145 The accused said no-one had been at the door and he assumed it was the wind or a noise. He said the complainant came out of the bathroom and he helped her hook up some parts of her costume. He said he was scared someone had been coming in and just forgot all about having sex and they got on with dancing. 146 After the sixth lesson, they organised the seventh lesson. The seventh to tenth lessons 147 The complainant said in lessons seven to ten, on a few occasions, the accused touched her on her bottom.64 She said during one of lessons seven to ten the accused touched her vagina on the outside of her clothing, brought his hand up to his nose, sniffed and said ‘yum’. She said she could not recall whether that had happened at the beginning, middle or end of the lesson. Those are the acts said to constitute the Count 6 – indecent assault. 148 The complainant was cross- examined about whether she had a boyfriend at that time and whether she had a conversation with the accused about that: Q. Now, in any of these lessons, in particular on the ninth lesson after the active wear incident, we say, or you are not sure about it, but I put to you took place, there was a conversation between you and Mr Sanchez about your sexualised relationship stopping. A. Sorry, say that again? Yeah, I'm confused sorry. Q. All right. I'll ask it another way. During class or session nine on 10 October 2019 there was a conversation that took place between you and Mr Sanchez where you raised that you had a boyfriend. A. A number of times I told him that I had a boyfriend. Q. And you said to him that the relationship with your boyfriend was getting somewhat serious and the sexualised interaction between you and Mr Sanchez had to stop. A. I do not know if I've said that. Q. Okay. Is it possible that you've said that. A. Potentially, yeah. Q. Okay. And it was after that that no other incident took place. No other indecent incident took place after that conversation. 64 Those are uncharged acts. -- 19 of 32 -- [2024] SADC 102 18 A. I can't comment on that because, as I mentioned earlier, things happened between the seventh and the tenth lesson. I can't pinpoint exactly when that happened but it happened between the seventh and the tenth lesson. Q. And during your sessions you felt quite comfortable to continue to dance with Mr Sanchez. A. Comfortable in a sense that I was hoping he would be professional enough not to do anything inappropriate. But obviously I was wrong. Q. Well, there was no other incident, was there, after - on your timing, the tenth lesson, was there. A. Things stopped because after the tenth lesson that was it. We only had 10 lessons. Q. That's not true is it, Ms Galea. You had more than lesson. A. As you said, I only recall. Q. You had more than 10 lessons, in fact you had a lot more than 10 lessons leading up to the pro am. A. According to you, yes, but I only recall 10 lessons. 149 In his evidence the accused said about that: A. To the best of my recollection this was lesson No.8, which was in October, late October. She came to the class, again we said 'hi' and she said to me 'Look, I've started seeing someone and it's getting quite serious so I just want to respect him. I don't think we can keep doing this'. To what I - I said 'That's completely fine. I respect that'. Q. And it was after that there was no more of the same behaviour; correct. A. Yes of course. As I said to her, 'I respect that. That's completely fine. We don't have to keep it up'. Q. Did that change the way then that you greeted each other and dealt with each other. A. Yes. Q. And how did it change. A. Usually - we were still friends so sometimes I will give a hug or a kiss on the cheek, yeah, not just at the lessons but when I saw her at the events. 150 In cross-examination, the accused accepted he may have, sometime after the seventh lesson, touched the vagina of the complainant and sniffed his fingers as part of the consensual interaction between them.65 65 T269.30-T270.9; T259.17-22. -- 20 of 32 -- [2024] SADC 102 19 151 On 23 October 2019, the complainant paid Latino Grooves another $200. She had by that time completed 10 lessons and had paid $400. The eleventh to seventeenth classes 152 The complainant said she had completed the balance of her private sessions, which she believed to have been ten lessons. 153 The complainant could not recall the eleventh and twelfth lessons finalised the 12-lesson package; on 24 October 2019, and 31 October 2019 respectively. 154 After the twelfth class, the complainant paid a further $200 toward her block of 12 lessons. 155 The four extra lessons had taken place on: 14 November 2019; 20 November 2019; 27 November 2019; and 4 December 2019. 156 On 15 November 2019, the complainant paid Latino Grooves a further $200 as an instalment for the block of 12. On 2 December 2019, she paid the final instalment in the sum of $400. That took the total paid to $1200. The Brisbane competition 157 The World Salsa Solo Competition took place 5, 6, 7 and 8 December 2019, at the Brisbane Convention and Exhibition Centre.66 158 The complainant competed with the accused as her dance partner. She described her relief when the performance was over and her private lessons had finished. She said she cried at the end of their performance as she ‘was finally free, free of - free of him, free of the privates, free of Latino Grooves’.67 159 Following the competition, the complainant said, at the request of Latino Grooves, she had posted on Facebook: ‘Feeling so blessed and thankful to have had this opportunity to be pushed out of my comfort zone and grow as a dancer’. ‘Thank you Juan Carlos Ospina Sanchez for being the best dance partner, teacher and mentor’. ‘Huge thanks to our sponsors CFMEU SA who are supporting Latino Grooves participation in the 2019 World Salsa Solo’. ‘The CFMEU represents over three thousand construction workers.’ 66 Exhibit P1, Agreed Facts (8). 67 T51. 1- 4. -- 21 of 32 -- [2024] SADC 102 20 The 2020 Membership 160 On 27 December 2019, the complainant paid $1760 for a yearly membership at Latino Grooves which entitled her to attend 12 months of unlimited group classes.68 161 In cross- examination, the complainant said about that payment, ‘I did want to be free. My mind was playing tricks on me. I did want to be free. Of course I wanted to be free. I also wanted to be a great dancer. Eventually I came to the conclusion that I would rather my sanity than to be a good dancer. So, I paid the money and that was it. I didn't go back’.69 Initial complaint evidence 162 On 10 March 2020, the complainant said Ms Butler had been the first person she had told about what had happened to her with the accused. She said that by Facebook Messenger she had told her: When I was doing the pro am with him, every rehearsal we would have together he would force himself onto me, trying to touch me and kiss me against my will, pin me to the bench, the wall etc and he was sober when he was doing it. He also knew I had a boyfriend. He’s a very bad person I didn’t know what to do either so I kept it quiet and I stopped going to classes. Submissions of the Prosecution 163 The prosecution submitted the complainant had been an honest and reliable witness and the evidence of the accused should be rejected. 164 The prosecution said the complainant displayed real upset in her evidence, caused by her trauma in the recounting of serious sexual offending. 165 Her evidence, submitted the prosecution, had a ring of truth about it. She had described, it was submitted, how the touching had escalated in its firmness and how it had graduated to forced masturbation and then digital penetration. 166 While, the prosecution accepted, the reasons given as to why she had returned to have lessons after each offence did not look good for her account, I was urged to consider she had been upfront and honest about those reasons. 167 Particularly, the prosecution submitted, regard be had to her feelings at the time. That is, the offending for her had been an out of body experience, causing shock and she had been scared and she had felt her mind had been playing tricks on her as the accused would immediately switch back to being professional. 168 Further, the prosecution argued, it had taken the complainant time to reflect and understand the seriousness of what the accused had done. 68 Exhibit P1 Agreed Fact 7. 69 T129.13-18. -- 22 of 32 -- [2024] SADC 102 21 169 It was also relevant in assessing the evidence of the complainant, submitted the prosecution, to recognise the importance of dance to her at that point of time in her life and that she had blamed herself for the incidents. 170 As for the concern the complainant had professed about her financial obligation for the block of private lessons, submitted the prosecution, while she accepted she had not known when payments had been made, her sense of obligation was one layer of a complex situation she found herself in. 171 Further, submitted the prosecution, the self-professed naivety of the complainant, her young age, concern at being ostracised by the dance community and her ardent desire to be the best dancer she could, readily explained why she had gone back after each sexual offence had occurred. 172 As for the initial complaint, submitted the prosecution, it had been made three months after the competition and was consistent with her trial account. 173 As for her evidence she had no sexual interest in the accused, the prosecution accepted if attempts to kiss were depicted in the video of the second lesson, it would have a significant effect on the veracity of that account. Further, it was conceded, that would also infect other components of her account. 174 The prosecution submitted that the acts depicted on the video had not been attempts to kiss. Rather, they had been acts reflective of the sensual nature of the dance and should simply be put aside. What could be seen on the video, the prosecution submitted, observed by close attention, were that the feet of the complainant shuffled and the movement of her head was a result of that positioning or squaring up for the dance. 175 The prosecution submitted answers given by the complainant and the accused about what had been happening in that video, and the initial agreement of the complainant she had been trying to kiss the accused, were not recollections of, but rather commentary on, what might be depicted. 176 As for the social media post of the complainant after the Brisbane competition, it was submitted, her reference to the sponsor, supported her account she had been persuaded to make that post and I should accept her evidence the praise given to the accused had not been genuine. 177 As for any asserted inconsistencies in the account of the complainant, the prosecution submitted, they had not undermined her fundamental account of the offending, which had been consistent and clear. 178 The prosecution submitted the accused had been a poor witness who exaggerated and guessed. Aspects of his account, it was submitted, made no sense. Particularly, the prosecution said, his evidence of what the complainant had said at the first lesson was implausible. Such a comment, it was submitted, would be more likely in an earlier social interaction, rather than in a private lesson. -- 23 of 32 -- [2024] SADC 102 22 179 Further, the prosecution said, the accused did not act as would be expected of a teacher. He prevaricated in his evidence about whether he found the complainant sexually attractive yet said he had lost the ability to stop or prevent sexual interaction. His evidence that when she started to engage he gave in, the prosecution submitted, was implausible as he had made no attempt to resist. Submissions of the Defence 180 The complainant, submitted the defendant, had at times during cross- examination been defensive, evasive, and argumentative. Further, while she could be excused for forgetting some detail, she had not been able to recall things about key issues and that should inform her credibility. 181 Language she used, the defence submitted, to describe her response to the first touching alleged in the second lesson, sounded like a reconstruction. References to her ‘shock’, an ‘out of body experience’, ‘crossing a boundary’ and being ‘scared’ were, it was submitted, unusual language for such an incident and more in line with what would be said in a therapeutic context. 182 The complainant had a tendency, it was submitted, by the time she went to police and in giving her evidence, to reconstruct events in hindsight to obscure the reasonable inference she had engaged in a consensual interaction. 183 Irrespective of any suggestion of reconstruction, it was submitted, the responses of the complainant to the alleged acts were utterly inconsistent with her continuation of the private and extra lessons up to the Brisbane competition, and her participation in that event, and her Facebook post afterward. 184 In describing the incurred cost of the private lessons as a significant factor, it was submitted, her lack of memory about how much the lessons cost and when she had paid, showed her unreliability and tendency to reconstruct. 185 Considered together, it was submitted, a reasonable inference should be drawn she had reconstructed events and had not given a truthful account. 186 As for the agreed facts, it was submitted, they were important to credibility and reliability. Particularly, the complainant had not remembered when and how payments were made; she had purchased 12 and not 10 private lessons; the lessons had cost had $100 each, not $200; she had attended four extra lessons; and had made her first payment two days after the most serious alleged indecent assault. 187 Irrespective, submitted the defence, her return to each following lesson, when she said she had not consented to any of the acts alleged, was unlikely and unusual behaviour. Life experience suggests, it was submitted, such behaviour does not sit comfortably with the obvious enjoyment of the complainant shown in the videos. 188 Further, the defence noted, the second instalment had been paid nearly a month after the sixth lesson, when the alleged rape was said to have occurred. -- 24 of 32 -- [2024] SADC 102 23 189 Even further, it was submitted, payment of $1760 for a yearly membership, post competition and after her profession of thanks to the accused and Latino Grooves, did not fit together with her evidence she had wanted to be ‘free’. 190 It was reasonably plausible, submitted defence, there had been consensual sexual activity as the complainant had continued to engage in lessons. That behaviour was better explained, submitted the defence, by the version of events given by the accused and the nature of the developing relationship he reported - than by the reasons the complainant had given for continuing to attend. 191 The adamant declaration of the complainant, submitted the defence, she had no sexual interest in the accused whatsoever, was contrary to the evidence of the accused and what could be seen in the video of the second lesson. 192 It made sense, submitted the defence, that their sexual interaction had ceased after the complainant had told the accused after lesson eight her relationship with her boyfriend was getting serious, and they had to stop. 193 There had been no evidence, submitted the defence, of any sexual interaction in lessons 11 to 17. The explanation of the accused as to why that had stopped made more sense than it had just suddenly stopped. 194 As for the initial complaint evidence, the defence submitted, it went no further than a generalised complaint about being pinned against walls. The other commentary the complainant provided was, it was submitted, not consistent with her other evidence and omitted much of the alleged offending. 195 As for minor discrepancies and inconsistencies of the accused and the complainant, the defence said that was unsurprising, given the elapse of time. 196 As for other inconsistencies, the defence referred to the differences between the notes the complainant had prepared for her initial interview with police and her evidence, as significant matters going to credit. 197 Generally, the defence submitted, the reasons given by the complainant for continuing with the classes simply defied common sense. The defence asked me to consider whether it would have been reasonable behaviour for an educated young woman who accepted she could have told the accused to stop, to resume her lessons as if nothing had happened and to come back time and again. It was simply incongruous, submitted the defence, for the complainant to, in the days after the fifth lesson, to have paid money for the private lessons for the first time. 198 As for the evidence of the accused, the defence submitted, the normal development of a relationship which had involved sexualised and intimate touching made sense. Particularly, it was submitted, that evidence was supported by the video of lesson two which showed attempts by the complainant to kiss the accused. -- 25 of 32 -- [2024] SADC 102 24 199 The evidence of the accused, submitted the defence, given with significant candour that he had abandoned his professionalism and had given into his passion, made sense. He accepted, submitted the defence, his professionalism had fallen well short of the required standard and he had not controlled his sexual urges. 200 The way the accused had expressed his intention not to promote any sexual act and his acceptance he had given in when the complainant showed interest, submitted the defence, also made sense. That made more sense than just booking and having more lessons which had not been paid for, after being assaulted. 201 The defence submitted a reasonable inference was open on the evidence that there had been consensual conduct such that the complainant had no difficulty continuing with the private lessons, paying the first instalment after consensual sexual interaction, and returning for even more lessons after that. 202 As for the rape, the defence submitted, its description was an impossibility. 203 First, submitted the defence, the complainant accepted she had worn a G- string under her active wear. The accused could not have known she had a beige G-string, as he said, unless she had removed her leggings, as he had said. How, the defence asked, would he have known that telling detail unless it had happened. 204 Second, there would simply not have been enough room on the bench, said the defence, for the accused to move his hand beneath the pants and under the G- string of the complainant. The bench was close to the wall, narrow, and the position the complainant described made that act an impossible or improbable one. 205 As for the Facebook post, the defence submitted, her evidence it had been false was an acknowledgment she was prepared to make false statements. 206 Finally, submitted the defence, payment of $1760 for 12 months membership in December 2019, meant the explanation given by the complainant she had been put up to making a false post by Latin Grooves, just fell apart. Consideration 207 I must acquit the accused unless satisfied beyond reasonable doubt that during private lessons two, three, four and five and once during one of lessons seven to ten, he indecently assaulted the complainant and in lesson six raped her.70 I must, in that respect, consider each count separately. 208 The complainant is the crucial witness. The prosecution case relies on acceptance of her evidence beyond reasonable doubt. 70 Information filed 10 February 2023 (FDN11). -- 26 of 32 -- [2024] SADC 102 25 209 Both the prosecution and the defence relied on the demeanour of the accused, as going to her credit. In that regard, the complainant was upset in her evidence in chief and at times during cross-examination she was argumentative. 210 While I am entitled to have regard to the way a witness gave evidence and how they stood up to cross- examination, courts must be cautious to attribute significant weight to matters of demeanour. 211 In cases such as this, the law recognises trauma may affect people differently and some people may show obvious signs of emotion or distress when giving evidence about an alleged sexual offence, while others may not.71 The presence or absence of emotion or distress therefore does not necessarily mean that a complainant has not told the truth about an alleged sexual offence.72 212 The defence submitted some of the language used by the complainant to describe her response to the first and other alleged sexual offending had a flavour of reconstruction and was more suited to a therapeutic setting. 213 References to being in ‘shock’, of having an ‘out of body experience’, to being ‘scared’ and of the accused ‘crossing a boundary’, were repeated by the complainant in respect of the first and later incidents. Those terms were used by her as descriptors of emotion and to attribute reasons for returning to undertake more private lessons after each sexual offence. 214 Those terms were coupled with her evidence she was naïve, had thought following each occasion the accused would not do it again and, that it took her some time to process the seriousness of what had happened. 215 In assessing the language used by the complainant I have kept in mind her age, education, profession, and generation. Her language at times may have had a therapeutic flavour but she used what are familiar terms and descriptors, and what she said represented language which she was obviously comfortable using. 216 I have focussed on and given weight to whether what the complainant described was supported by other evidence and fitted together with life experience and common sense. 217 In deciding whether the prosecution has proved an offence, I must consider the whole of the evidence I accept as relevant to that offence and all of the circumstances of the alleged offence, including what the accused and complainant did before, during and after. 218 In that respect, while the behaviour of the accused, on the complainant’s evidence, got more serious and shocking, she continued to organise lessons and go 71 Ibid. 72 Ibid. -- 27 of 32 -- [2024] SADC 102 26 back again. As the prosecution accepted, that is problematic behaviour for her account. 219 Her return to subsequent lessons does not sit comfortably with an escalation in the touching, forced masturbation and rape, even having regard to how she said she had felt and the professed importance of dance in her life. 220 The complainant presented in her evidence and in the videos as a confident, educated, and expressive young person. She accepted she could have told the accused to stop or reported him to Latino Grooves or someone else. The complainant said that on each occasion she did not say anything to the accused and considered that the offending would stop. 221 The complainant also said she considered she had a financial obligation for the private lessons and that was an important matter in returning. The agreed facts have significance though when considered side by side with that evidence. 222 The complainant committed to 12, not 10 private lessons. Within those, she performed at the studio with the accused. She could not remember when and how payments were made or that each lesson had cost $100, not $200. She paid a first instalment just two days after the most serious alleged indecent assault. After the block completed, she organised and attended four extra lessons. She competed with the accused and paid $1760 shortly thereafter for another yearly membership. 223 While not obliged to, the accused also gave evidence. He denied each of the indecent assaults and that he raped the complainant. He said he and the complainant engaged in consensual sexual activity during their private lessons but had stopped after the tenth lesson at her request. 224 In assessing the evidence of the accused and the weight to be given to it, as part of the whole of the evidence, I approached that task in the same way I did with the evidence of the other witnesses. 225 As the prosecution acknowledged, if I consider his version of events and denials to be reasonably possibly true, it is my duty to acquit. 226 Even if I do not accept his evidence, it is still for the prosecution to prove its case beyond reasonable doubt. Rejection of the evidence of the accused would not prove the prosecution case, nor make it stronger. 227 It is not enough for the prosecution to show mere suspicion of guilt or that an accused is probably guilty. An accused is not to be convicted unless their guilt has been proved beyond reasonable doubt. 228 Having considered the whole of the evidence, other evidence does support the accused evidence of consensual sexual activity. -- 28 of 32 -- [2024] SADC 102 27 229 The declarations of the complainant she had no sexual interest in the accused and had never flirted with him sit uneasily with the video of the second lesson. 230 That video is but one piece of evidence and I have assessed it as part of the whole. I have though given it some weight. It is a record of the interaction between the complainant and the accused, albeit on a single occasion during the second private lesson. In my consideration I have accepted the caution that is appropriate in respect of video evidence.73 231 Further, in my consideration of what can be seen, I have kept in mind neither the complainant nor the accused recalled that interaction. 232 As the prosecution candidly accepted, if I consider sexual interest of the complainant in the accused is depicted, it would have significant impact on the veracity of her account. 233 I have described in detail what I have found to be depicted in the video of the second lesson earlier in these reasons.74 234 Having watched all the videos tendered multiple times, I do not consider what is depicted in the second lesson to be part of the dance being practiced. Nor is the movement of the head of the complainant a consequence of an action of the accused or the complainant being repositioned by the accused. 235 On two occasions that video depicts an affectionate and intimate action by the complainant toward the accused in the nature of a kiss on his neck and an attempt to kiss his cheek or neck. It is evidence of physical interest, flirtation, and the complainant’s attraction to and sexual interest in the accused. 236 Those depictions, given that, are not consistent with the evidence of the complainant she had no sexual interest in and was not attracted to the accused at all and that she had never flirted with him.75 The evidence does provide support for the evidence of the accused their relationship developed from flirtation and that the complainant had expressed sexual interest in him. 237 The prosecution urged me to reject the evidence of the accused there had been a consensual sexual relationship as aspects of his account had not made sense. 238 The prosecution said his evidence of what the complainant said at the first lesson was implausible, as that comment would be more likely to have been said in an earlier social interaction and not in a private lesson. 73 State of South Australia v Crossley [2020] SASFC 128 at [30]-[33]. 74 See [104]-[112] herein. 75 T75.22-23; T97.30. -- 29 of 32 -- [2024] SADC 102 28 239 I consider such a bold comment as the accused attributed to the complainant would likely be made when the two of them had been alone; as they had been in the first lesson. 240 The prosecution said the accused did not act to prevent or not progress sexual acts taking place in the studio, as you would expect a teacher to do. Further, the prosecution submitted the accused had prevaricated about whether he found the complainant sexually attractive and yet lost the ability to stop or prevent their sexual interaction. That he just gave in, it was submitted, therefore made no sense. 241 I have not rejected the evidence of the accused of a flirtatious relationship with the complainant and that she had exhibited sexual interest in him. I have already mentioned the incongruity which arises on the one hand, and support on the other hand, provided by the short video of lesson two. 242 Further, the accused was candid about behaving poorly and giving in to passion. He said he behaved as a human, not a professional. The accused said he had always thought the complainant was good looking. He said he became sexually interested in her when she expressed interest in him. He said he steeled himself before each lesson not to engage. He said when the complainant instigated contact, he gave in. 243 That the accused, thinking the complainant was good-looking, examined his sexual interest in her when she made it plain to him she was interested, is not unbelievable. That he later gave in when she instigated physical contact, and failed act properly as a professional, cannot be said to not make sense. Professionals do at times act badly and unprofessionally by forming relationships and engaging in consensual sexual acts with their clients. 244 As for the initial complaint evidence, it was limited to that of the complainant.76 Ms Butler did not give evidence.77 245 I have only used the initial complaint evidence of the complainant for a limited purpose. I have used it to understand how the allegations came to light and to consider the degree to which she acted consistently and to what extent she complained about the offending at the time expected, and to what extent her account had remained consistent from when she had first reported these offences. 246 I have not used her initial complaint evidence to demonstrate the truth of what she alleged. To decide the truth of what occurred, I have relied on the complainant’s first-hand evidence given in court. 247 When assessing the initial complainant evidence, I have taken into account there may be many reasons why the complainant told the person she did about 76 The complainant said the first person she told about what had happened was her friend Soraya Butler. Ms Butler declined to co- operate with the prosecution and was not called to give evidence; T51.14-21; T19.3-6. 77 T19.3-6. -- 30 of 32 -- [2024] SADC 102 29 these alleged offences at the particular time, or why she had chosen to tell that person, rather than another person. 248 The initial complaint evidence while not detailed was somewhat consistent with the evidence of the complainant at trial; for example the reference to being pinned on a bench and to the accused forcing himself on her. In one respect it was inconsistent. In the fifth lesson the complainant said the accused told her he had consumed cocaine, while the complainant told Ms Butler the accused had been sober. 249 Arguments were also put by counsel about whether there had been other inconsistencies, differences, or omissions within the complainant’s evidence, within the accused evidence and between the complainants out of court statements and her evidence and with other evidence. 250 Usually, the law does not allow a trier of fact to use what a person has said outside court as evidence to prove the truth of what the person has said in evidence. 251 I have only used any prior inconsistent statements I have found were made by the complainant to assess her credibility and reliability. I have not used evidence of prior inconsistent statements on other occasions for any other purpose. I have not used statements out-of-court as evidence of what occurred. 252 It was a matter for me whether to accept things said to be inconsistencies or differences or omissions in the evidence of witnesses, had in fact been inconsistencies or differences, in whole or part. 253 It was also a matter for me what weight to give to any such inconsistencies or differences of omissions I had found established. 254 As to her reliability, while giving evidence is not a memory test, the complainant was not a good historian. She did not remember how many lessons she had, could not remember having extra lessons at all and how much and when she had paid for those lessons. Her evidence sat uncomfortably side by side with the agreed facts about that. 255 Having considered the whole of the evidence, a reasonable explanation for the complainants continued attendance at each lesson is that the accused and the complainant had enjoyed a mutual sexual interest which they had been acting on and that the incidents as she described them had not happened. 256 Having considered the whole of the evidence, the explanation of the accused that their consensual sexual interaction ceased after the complainant told him her relationship with her boyfriend was getting serious and they had to stop, fits with the chronology, and is also a reasonable explanation for what happened. -- 31 of 32 -- [2024] SADC 102 30 257 For all the reasons I have explained, the prosecution has not satisfied me beyond reasonable doubt that the offending had occurred as the complainant said and that the accused is guilty of the six offences charged. Verdict 258 I have accordingly found the accused not guilty of each of the six counts. -- 32 of 32 --