[2024] SADC 106

Prosecution: R Counsel: MS R ANDERSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: L, AK Counsel: MR J MARCUS - Solicitor: JKR LAWYERS Hearing Date/s: 30/01/2023 to 02/02/2023, 31/07/2023 to 01/08/2023, 03/08/2023 File No/s: DCCRM-21-714 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 L, AK Criminal Trial by Judge Alone [2024] SADC 106 Reasons for the Verdict of his Honour Judge Allen 12 September 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The accused elected for trial by judge alone on one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that between 3 February 2001 and 3 February 2004, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with or towards her namely: (a) touching her vagina on more than one occasion; (b) performing an act of cunnilingus upon her on more than one occasion; (c) causing her to perform an act of fellatio upon him on more than one occasion; and (d) inserting his penis into her vagina on more than one occasion. Verdict: Not Guilty Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 34M, 34CB, referred to. Sexton v The Queen [2022] SASCA 73; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98; Murray v The Queen (2002) 211 CLR 193, considered. -- 1 of 96 -- -- 2 of 96 -- R v L, AK [2024] SADC 106 Criminal Overview 1 On an Information dated 23 July 2021, [L, AK] is charged with the following offence: Statement of Offence Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence [L, AK] between the 3rd day of February 2001 and the 3rd day of February 2004 at [the complainant’s home-town] and other places maintained an unlawful sexual relationship with [JR], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [JR] namely: (a) touching her vagina on more than one occasion. (b) performing an act of cunnilingus upon her on more than one occasion; (c) causing her to perform an act of fellatio upon him on more than one occasion; and (d) inserting his penis in her vagina on more than one occasion. … 2 The accused elected for trial by judge alone. Elements of the offence Maintaining an unlawful sexual relationship with a child 3 The offence of maintaining an unlawful sexual relationship with a child has four elements: 1. the accused knowingly maintained a relationship with [JR] during the period in which the particularised unlawful sexual acts occurred; 2. the accused was an adult during the period in which the particularised unlawful sexual acts occurred; 3. the complainant, [JR], was a child and under the age of 17 years during the period in which the particularised unlawful sexual acts occurred; and -- 3 of 96 -- [2024] SADC 106 2 4. the accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant, [JR]. 4 Elements one, two, and three were not in dispute at trial and are established beyond reasonable doubt. Element four was the issue at trial. The question is whether the prosecution has proved beyond reasonable doubt that the accused intentionally committed two or more of the particularised unlawful sexual acts against the complainant. 5 The elements of the relevant offences arising from the particulars are: Indecent assault 1. there must be an assault, a touching would suffice; 2. the assault must be deliberate as opposed to accidental; 3. the assault must be unlawful, there must be no lawful excuse for the assault; 4. the assault must be indecent according to contemporary community standards; 5. the assault must be committed by the accused with a sexual purpose or intent; 6. the complainant was under 17 years of age at the time of the assault. 6 Consent is no defence to this charge; a child under 17 years is incapable in law of consenting to sexual activity. Unlawful sexual intercourse 1. the accused had sexual intercourse with the complainant. For the purposes of this trial sexual intercourse includes the accused performing an act of cunnilingus upon [JR], the accused causing [JR] to perform an act of fellatio upon him and the accused inserting his penis into [JR]’s vagina; 2. the complainant was under 17 years at the time of the intercourse. 7 Again, consent is no defence to this charge; a child is incapable in law of consenting to sexual activity. Preliminary legal directions 8 Having conducted a trial by judge alone, it is unnecessary to set out the various standard directions that would be given to a jury. Nonetheless, I remind myself of the following principles. -- 4 of 96 -- [2024] SADC 106 3 9 The standard of proof is beyond reasonable doubt. The prosecution bears the burden of proof. The accused is presumed to be innocent unless and until the evidence satisfies me that each element of the offence has been proven beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt, or to demonstrate that the accused is probably guilty. The accused is not required to prove that he did not commit the offence with which he is charged. 10 The complainant, [JR], gave evidence with special arrangements in place. I must not allow the fact of these arrangements to influence the weight that I give to the evidence of each particular witness. I must not draw an adverse inference against the accused as a result of the fact that these arrangements were in place. 11 The accused did not give evidence. The accused’s silence cannot be used against him. I must not draw any adverse inference based on his choice not to give evidence. I must not treat his silence as an admission, nor must I use it to fill gaps in the prosecution case. Brief background 12 The prosecution case is that [JR] and the accused came into contact with each other in unusual circumstances when she was in year 10 at school aged 14 or 15,1 when a phone call placed by the complainant to a friend inexplicably diverted to a then unknown male, who engaged in a conversation with [JR]. 13 [JR] and the unknown male then continued to communicate with each other, leading to [JR] and the unknown male meeting in person about one week later at the end of her street at night, which involved the complainant getting into the unknown male’s car, before being driven to a nearby sports ground at which time and place an act of penile/vaginal intercourse took place on the ground next to the vehicle. 14 On the prosecution case, the unknown male was the accused and this represented the commencement of an episode of unlawful sexual behaviour perpetrated by the accused on a multiplicity of occasions across a number of locations. Summary of evidence Examination-in-chief of complainant 15 [JR] was born on 3 February 1987. She grew up in the Murray Mallee. Living arrangements and home life of complainant 16 Throughout her evidence-in-chief, [JR] discussed several premises. By way of overview, they are as follows: 1 T14. -- 5 of 96 -- [2024] SADC 106 4 1. Family house; 2. [N] and [B] homestay whilst attending Unity College (weekdays only); 3. [JG]’s house; 4. Lady from church; 5. Granny flat; 6. [JU]’s house; and 7. Jeffrey Street Address. Family house 17 [JR] described her homelife as chaotic and scary. Due to this, the accused complimented her, telling her that she was ‘smart and pretty’ and was ‘very memorable’.2 18 [JR] elaborated on her homelife: … my home life was absolutely shocking. So my father was a severe domestic violence perpetrator and there was domestic violence occurring every single night. One time I heard him raping my mother and it was all very distressing for me. So I would often do things like try to borrow my sister’s CD player so I could drown out the signs of the arguing but sometimes my mum wanted to hop in bed with me which was also distressing. There was involvement with the school and my mum’s friends as well who were all aware of the situation. Also I tried to report it to the police myself. My mum had also tried to end her own life so what had happened, she was having a fight with my father and I heard her saying ‘I am going to the shed to hang myself,’ and my father just laughed at her. Then I went outside to check that she was okay and she was preparing to hang herself. Then he called the police but he continue to taunt her saying ‘It is a crime to commit suicide’.3 19 [JR] stated that her home was a very unsafe place to be. She alleged she was regularly physically assaulted. Her siblings also resided there. [N] and [B] homestay 20 When [JR] attended Unity College, she resided in Murray Bridge. During this time, [JR] lived with an elderly couple named [N] and [B] during the week. [AB] also resided there. This type of arrangement was described as a homestay environment which was organised through the school. From Friday on, [JR] would return home and stay with her parents.4 2 T35.25-27. 3 T35.34-T36.13. 4 T12.10-31. -- 6 of 96 -- [2024] SADC 106 5 [JG]’s house 21 Following living with [N] and [B], [JR] moved into [JG]’s home at the start of year 11.5 22 [JR] was living with [JG] and [K] ([K] was [JG]’s husband), and she believed she lived there for under six months around the start of year 11.6 Later in examination-in-chief, [JR] explained that the school discovered the reality of [JR]’s difficult homelife, and as a result [JG] and [K] were also made aware.7 23 It was around this time, the accused and [JR] went to Big-W and purchased a sparkly G-string; [JR] remembered this clearly because she was extremely embarrassed to hang them on the line at [JG] and [K]’s house.8 She became aware that her situation was negatively impacting [JG], and that there were issues with her living arrangements. Staying with lady from church 24 After living with [JG], [JR] said she went and stayed with a lady through the church. At this time, she was generally upset about how her parents and the accused treated her.9 She did not stay long with the lady from church as she said she felt uncomfortable there and believed that she was a financial burden.10 She only stayed at the church lady’s house for a brief period; a matter of weeks.11 Granny flat 25 Shortly after living with the lady from church, [JR] said she moved out to a granny flat in Murray Bridge.12 [JR] confirmed that there was a main residence on the property as well as the granny flat. A lady called [JB] lived there and ran a home day care centre out of the house.13 She knew of [JB]’s daughter, [C], who had previously lived in the granny flat prior to leaving for university.14 26 [JR] estimated that she stayed two to three months at the granny flat.15 27 [JR] marked the map and outlined a floor plan of the granny flat. This included the laptop and computer set up, as well as the locations that she had sex with the accused in the flat.16 5 T37.30-32. 6 T54.38; T55.4. 7 T53.25-28. 8 T53.32-38. 9 T54.25-31. 10 T55.6-13. 11 T56.5. 12 T53.18. 13 T55.25-27. 14 T55.37-56.1. 15 T71.13-15. 16 T60.37. -- 7 of 96 -- [2024] SADC 106 6 [JU]’s house 28 [JR] stayed with [JU]’s family for a matter of weeks.17 One day after telling [JU] about the situation with the accused (which is discussed further below), [JR] returned to the granny flat and found it locked. At the time she believed she had been evicted, and she proceeded to crawl through the window to collect some of her belongings. She said she then purposely spilt milk all over the doormat as she left. She called [JU] and was upset by the situation.18 29 From this point, she stayed with [JU]’s family. [JR] reiterated that she found [JU]’s mother [S] to be supportive and kind; although she was not aware of the particulars of what had been happening with the accused.19 Whilst staying with [JU], [JR] said she continued to speak with the accused, and she said he helped her to find a unit to live in.20 Jeffrey Street address 30 [JR] was able to secure this address with the accused’s assistance. The accused dealt with Mason’s Real Estate and signed a lease for her, acting as her guarantor. She said as she was only 16 at the time; she was not old enough to sign it on her own.21 She believed that she moved into this address at the end of a school year but could not say which year.22 31 [JR] said that she was pulling away from the accused at this point. Notwithstanding this, he helped her by purchasing furniture, crockery, and cutlery. She recalled him assisting her moving in, using a trailer and that he scratched the back of the bed posts in the process.23 32 A few weeks after moving in, [JU] joined her at the address and moved in with her; she said she did not want to be alone ever.24 She lived in the Jeffrey Street unit for around nine months.25 Meeting the accused 33 According to the complainant, she met the accused after calling her friend, [TM], and her phone diverted to his number.26 [JR] said she was in year 10 at school at the time of this phone call.27 34 [TM] was a friend of [JR]’s from school. When further questioned as to what [JR] meant by the phone ‘diverting’, she said [TM]’s phone rang out and then 17 T70.29. 18 T70.10-15. 19 T70.18-24. 20 T70.31-37. 21 T71.2-6. 22 T71.20-22. 23 T71.26-72.1. 24 T72.13-23. 25 T72.38-T73.1-2. 26 T13.7-9. 27 T14.9-11. -- 8 of 96 -- [2024] SADC 106 7 diverted to another mobile. As soon as the call diverted, [JR] could hear someone breathing on the line and thought someone answered the phone. She initially thought it was [TM] and as such, said hello. A male voice responded to this and said something to the effect of ‘well hello there’.28 [JR] did not respond to this. The male voice then said, ‘well this is a mystery’. [JR] said she felt shocked, but nonetheless continued speaking to the male voice and did not hang up. She was not able to provide an explanation as to why she did this, beyond that she felt shocked. The two spoke for 40 minutes on the phone.29 [JR] recalled particular passages of the conversation: ‘I remember saying to him ‘I’m only 14 or 15 – ‘, I can’t remember how old it was ‘- is that a problem?’, and he said ‘No’.30 35 [JR] said that the male on the phone said his name was the accused. She also recalled that the male said he was 28 years of age.31 Following this conversation, both [JR] and the accused made plans to meet each other in person.32 From this point, there was ongoing communication between the accused and [JR].33 [JR] said she met up with the accused around a week after this initial phone call.34 36 [JR] said she became aware of the accused’s surname on one of the first few occasions she spoke with him, and that he told her his surname was [L], the surname of the accused.35 [JR] described the accused. She said he was relatively tall, with a fairly olive complexion and broad shoulders.36 Allegations of sexual offending 37 [JR] said there was a pattern to the accused’s behaviour. Typically, the accused would initiate sex by touching her vagina under her underwear.37 38 She said the accused enjoyed performing oral sex on her, and that it happened frequently. She was not able to remember specific incidents beyond what she relayed to the Court; she said that each of the incidents blurred into one incident.38 39 [JR] said the accused often wanted her to perform oral sex on him, she said this happened ‘pretty much every time.’39 28 T13.24-30. 29 T13.35-38. 30 T14.4-6. 31 T14.26-28. 32 T14.32-38. 33 T15.1-3. 34 T15.6-7. 35 T28.29-34. 36 T15.35-36. 37 T74.9-13. 38 T74.17-18. 39 T74.32-33. -- 9 of 96 -- [2024] SADC 106 8 40 When the accused would use the webcam to film them having sex, he would refer to her as ‘Tara’ and himself as ‘Flynn’.40 First incident (sports oval) 41 The first alleged sexual act perpetrated on [JR] occurred on the first occasion where she met the accused in person. [JR] said the accused picked her up on a Saturday at 7:30pm or 8:00pm at the end of her parents’ street.41 They then went to a local sports complex. [JR] recalled that it was dark. [JR] said the accused drove a green ute with a tray top.42 42 Once the accused picked [JR] up, they drove to the sports oval and had sex in the car.43 She said that it would have been a 5-minute drive and that she sat in the passenger seat.44 Upon arriving to the oval, [JR] said the accused touched her vagina through her underwear (whilst still in the car) and laid down a towel on the ground.45 The touching of the vagina occurred before the towel was laid on the ground.46 She said the accused first began rubbing her vagina from the outside of the underwear, and this occurred only whilst in the car. This lasted for 5 to 10 minutes. She could not recall whether the accused said anything. 43 After talking about laying on the towel, [JR] described the following events ‘he had sex with me in missionary style, so by sex I mean he put his penis inside my vagina and he ejaculated in me’.47 44 [JR] said this occurred whilst they were laying on the towel. She said she was laying down flat on her back and her legs were spread flat on the ground.48 45 [JR] was not able to say what she was wearing on this occasion. She recalled being in a state of undress; the bottom half of her clothing was off, but her top remained on.49 46 In relation to the complainant’s state of dress, she said that the accused touched her vagina at the same time as the clothing was removed, prior to the sexual intercourse occurring.50 [JR] was further questioned about how the accused touched her vagina. She stated that the accused touched her clitoris and around the vagina as well. [JR] agreed that this touching occurred before the penis-vagina intercourse. 40 T75.30-34. 41 T15.9-11. 42 T15.29-30. 43 T15.38-T16.1. 44 T16.7. 45 T16.10-11. 46 T16.15. 47 T17.1-3. 48 T17.11-13. 49 T17.21. 50 T17.27. -- 10 of 96 -- [2024] SADC 106 9 47 The sexual incident came to an end when the accused ejaculated. [JR] said they both returned to the car.51 [JR] put her bottom half of her clothing on first before then entering the car and sitting in the passenger seat. 48 [JR] said that the accused drove her home, but clarified that he dropped her to the end of the street. She then clarified that she meant the back end of the street. [JR] did not recall anything that was discussed whilst driving back. [JR] said she continued to talk to the accused after this first incident and that they would continue to talk to each other via phone ‘pretty much’ every night.52 This was the only occasion where an alleged sexual act occurred at the sports oval. Second incident (Baan Hill) 49 After the first alleged incident, [JR] met up with the accused again. During the second incident, they went to Baan Hill.53 She described this area as an isolated, deserted campsite, that was quite barren.54 [JR] said she went to this campsite with the accused a week or two after the first incident at the sports oval. [JR] said that they attended Baan Hill approximately four times.55 50 [JR] described this incident as an awful experience.56 She described the incident as follows: Yep. So I don’t recall what he said exactly but he said something about how he wanted to touch my vagina without me closing my legs and so he tied my hands up in a star shape above my head and then bound my feet open.57 51 [JR] clarified that the star shape involved her hands open as though doing a jumping jack.58 Her arms were separated and above her head. [JR] said this took place in the back of the car in the tray.59 [JR] said that the accused used rope to tie her hands up. [JR] said that her feet were also tied up and spread apart. She could not recall where they were tied to.60 [JR] said that she was naked as she was being tied up. 52 [JR] explained that the accused said he was concerned that she would close her legs if he made attempts to touch her vagina, which was why he chose to tie her up.61 51 T28.16-17. 52 T29.5. 53 T29.16. 54 T29.23-26. 55 T29.32. 56 T31.10. 57 T31.13-16. 58 T31.19-21. 59 T31.28. 60 T31.37. 61 T32.16-17. -- 11 of 96 -- [2024] SADC 106 10 53 Whilst [JR] was tied up, she said that she was facing up.62 After being tied up, [JR] said they had sex and clarified that this was penis-vagina intercourse.63 She said she was tied up for the entirety of the sexual encounter. She recalled that the accused was also naked, and the sexual activity ended when he ejaculated.64 54 [JR] said she would stay overnight each time they visited Baan Hill65 and would sleep in the back of the tray-top ute. [JR] said that the ute ‘had like a soft thing to sleep on … it might have been more of a blow-up mattress rather than actual mattress and [there was] some pillows and blankets’.66 55 [JR] confirmed that she slept the night on the second occasion.67 Third incident (Baan Hill – oral sex) 56 [JR] recalled a second incident where the accused wanted her to sit on his face so that he could perform oral sex. She described this incident in the following way: So his head was facing the black back of the tray-top Ute and I was holding on and I didn’t want to look down at him so I was looking around. 68 57 [JR] said that she was in the tray of the ute and the accused’s head was against the back part of the ute.69 [JR] confirmed this was near the cabin.70 She confirmed that the accused was laying down. She said that she did sit on the accused’s face. She was not wearing any clothes. [JR] was then asked what she meant by oral sex. She clarified that this meant that ‘he used his tongue on my clitoris and vagina.’71 58 She confirmed that she stayed the night at Baan Hill on this occasion.72 Multiple incidents at the accused’s mother’s house 59 The complainant alleged that multiple sexual incidents occurred at the accused’s mother’s house. [JR] explained that it was difficult to put into sequence the events because there were so many incidents involving the accused that occurred at his mother’s house.73 60 [JR] said that she was aware the house was the accused’s mother’s because he told her as much. She said the accused told her his mother did not want him to 62 T32.24. 63 T32.26. 64 T33.6. 65 T33.29. 66 T33.33-35. 67 T33.38. 68 T34.6-10. 69 T34.13-16. 70 T34.18-19. 71 T34.32. 72 T35.2. 73 T42.29-33. -- 12 of 96 -- [2024] SADC 106 11 bring her to the house due to her age.74 It was after this conversation that [JR] ceased visiting the house.75 First visit to the house 61 This incident occurred at the time the complainant was attending Unity College.76 62 There was an occasion when [JR]’ mother attempted suicide. [JR] was assaulted on this occasion and was bleeding from her head. She advised the accused of this and he came to pick her up. 63 Upon the accused collecting her, they drove to his mother’s house.77 This was the first time [JR] had been to the mother’s house. At this point in time, [JR] said she had been talking to the accused everyday over the phone. [JR] said it took roughly two-and-a-half hours to drive from her home-town to the accused’s mother’s house.78 64 She said the house was located behind Blackwood High School and described this as a prominent memory because she currently drives past the area on the way to collect her daughter from Crafers and is reminded of this as she drives past.79 At the time, the accused also told her that his mother’s house was near Blackwood High School.80 65 When [JR] and the accused arrived at the house they went straight to his bedroom and had sex.81 [JR] did not recall seeing anyone at the premises.82 She found it difficult to see much of the house at the time as it was dark and they went straight to the bedroom.83 Shaving vagina incident (uncharged) 66 [JR] said on one occasion the accused dry shaved her vagina. She said this incident was prominent in her mind because she had never shaved her vagina before, and she said it had never occurred to her to do so.84 She recalled having sore ingrown hairs and it being painful and itchy for a few days afterwards. 74 T45.20-25. 75 T45.28-30. 76 T37.25. 77 T37.22. 78 T40.4-5. 79 T41.8-17. 80 T41.24. 81 T37.36. 82 T40.13. 83 T40.16-18. 84 T42.38-T43.6. -- 13 of 96 -- [2024] SADC 106 12 67 She confirmed that this occurred on the chair marked on the floor plan in Exhibit P2.85 She could not recall him saying anything during this act.86 68 This is an uncharged allegation. First filming incident 69 [JR] recalled an occasion where she had ‘doggie style’ sex with the accused. This incident occurred in the bedroom again, on the bed.87 She explained that this involved her on all-fours with the accused penetrating her vagina with his penis from behind.88 70 She said she was able to remember this incident because it was the first time that the accused filmed her and that he was pulling her hair.89 She said she became aware the accused was filming her because he told her as much. She said he used a white and blue webcam that was set up above the computer (as opposed to a laptop) to film her.90 She described the webcam as a circular shape that had a slightly curved base.91 She could also see that people were typing.92 71 She later clarified that she had seen messages popping up on the screen, although she could not read the messages, and that the accused had told her that people in Adelaide were watching.93 Incidents in hotels 72 After the accused ceased taking her to his mother’s house, [JR] said he took her to hotels in the city.94 [JR] said she would typically remain in the car whilst he checked in to the hotel. She described the hotels as being fancy with multiple floors.95 She was not able to recall any of the names of the hotels and justified this as being from the country, she was not familiar with hotels in Adelaide.96 73 [JR] said that each of the four or five times97 she went to a hotel with the accused they had sex.98 After he moved to an address in Meadows, they stopped visiting hotels.99 85 T43.11. 86 T43.18. 87 T43.26. 88 T43.21-23. 89 T43.32-33. 90 T44.1-6. 91 T44.8-10. 92 T43. 93 T44.23-25. 94 T45.33. 95 T46.8-11. 96 T46.35-37. 97 T47.11. 98 T47.6-8. 99 T47.14-15. -- 14 of 96 -- [2024] SADC 106 13 Incidents at the accused’s house at Meadows 74 At the point that the accused moved into his own place in Meadows, [JR] believed she was living at [JG] and [K]’s or the granny flat. [JR] said she would have sex with the accused at this address, and that they would have a sexual interaction every time she visited his house.100 She confirmed that no one else lived at this address.101 She would frequent this address roughly every second weekend.102 She was not able to provide an estimate of how many times she visited the house.103 75 [JR] was shown Exhibit P3 – the hand-drawn map of the Meadows property. 76 She confirmed that in the accused’s bedroom there was a bed located in the top right corner of the room. The rectangle she had drawn on the map indicated a desk and computer. She said that it was this computer that she was filmed from.104 She said she was filmed using the aforementioned webcam.105 77 In relation to the accused’s room, [JR] recalled there being a mink-type blanket with a large white cat print drawing on it with a black border.106 She remembered this because it was the only place she would be warm enough to fall asleep in the house.107 [JR] said she had seen this blanket since attending the Meadows address after conducting google searches. She said it made her upset to see.108 She confirmed that there was a photo of the blanket in Exhibit P4, the bundle of three photographs from google search. Further, she confirmed that the photos depicted his bedroom, with a bed and the mink-blanket on it. 78 She believed she googled his address around August of last year.109 She confirmed that the blanket was also at the accused’s mother’s house (as well as the Meadows address). Later in examination-in-chief, [JR] said that there were several incidents where sexual intercourse took place on top of the mink blanket, and that she hoped that the mink blanket may have featured in a video, which she stated would be useful for police investigations.110 Incidents at the granny flat 1. Background 79 When [JR] moved into the granny flat, she no longer wished to visit the accused’s house. She said he could not understand why she no longer wished to 100 T52.37. 101 T47.31. 102 T47.34-35. 103 T53.3. 104 T49.36-37. 105 T50.1. 106 T50.33-36. 107 T50.33-36. 108 T51.23-31. 109 T52.25. 110 T61.34-62.1-4. -- 15 of 96 -- [2024] SADC 106 14 visit. She remembered an occasion where the accused dropped her flowers at the granny flat.111 Whilst the accused did not have a key, she usually left the premises opened and unlocked as [JB] was at home working in the day centre that operated out of the primary residence.112 She did not live for very long at the granny flat, she estimated it was only a few months113 as she was struggling to live independently.114 80 [JR] said the first time the accused attempted to visit the granny flat, he told her that the lady who lived in the front of the house told him to fuck off.115 81 There were two incidents that [JR] was able to clearly recall in relation to the accused visiting the granny flat. She said these were the main two incidents she recalled, as they were the most degrading, although she said she believed there were more incidents, but she was unable to recall the specifics of them.116 2. Oral sex incident 82 [JR] remembered performing oral sex on her knees in the alcove of the bedroom in the granny flat. She recalled feeling the accused’s penis at the back of her throat and choking, this caused her to retract her head backwards which led to a trail of her saliva extending from her mouth to his penis. She recalled the accused saying, ‘this would look good on camera’.117 This incident was not filmed. 3. Filming close-up of ejaculation 83 The second occasion involved [JR] and the accused having missionary style sex on the lounge room floor of the granny flat. She recalled that he ejaculated into her vagina and wanted to film a close up of this act using the web cam.118 This was filmed using [JR]’s laptop webcam (which was attached to the laptop), although she was not able to describe the webcam.119 The accused set up this recording, and filmed it by picking up the laptop; [JR] said she would never personally do that herself.120 She recalled being shocked at seeing the footage.121 She said she assumed that the accused was showing people via the webcam because that is what he had done previously.122 111 T56.33 112 T56.36 113 T69.6 114 T68.27-28 115 T58.6-7 116 T62.16-20; T62.24 117 T58.11-16 118 T58.17-20. 119 T59.3-5. 120 T5912-13. 121 T5917-19. 122 T61.24-25. -- 16 of 96 -- [2024] SADC 106 15 Taxi incident 84 [JR] said that the accused was a taxi driver. He used to tell her how much money he earned, and wondered how he was able to afford the Meadows property on his wage.123 85 On one occasion during the day on a weekend, the accused picked her up and they had sex in the taxi; she was mortified by this and did not want to do it.124 [JR] was concerned there would be cameras and that employers would see her having sex.125 When they had sex, she said she was laying long-ways along the back seat on the passenger side and had her legs up against the other seats in the back of the car. She was sitting slightly upwards, and the accused was on top of her.126 She could not recall what clothes she was wearing.127 She believed this incident occurred not far out of her home-town, around five or 10 minutes of driving on the main road that leads out her home-town.128 86 She said there was only one incident where they had sex in the taxi, and he did not pick her up in the taxi on any other occasion.129 Marion cinema incident 87 There was an occasion where the accused and [JR] went to the cinema. The accused did not want to pay for two movies so after watching one, they snuck into the next one after hiding in the toilets.130 88 They were sitting in the centre of the movie theatre audience.131 [JR] remembered the accused pointing out a woman that he recognised as a prostitute and that he had driven her around previously. He mentioned that he had been offered to be a male escort, which struck [JR] as strange because she believed him to be ‘very old and very unattractive’.132 She could not recall what movie was playing.133 89 [JR] said that the accused put her on his lap, such that she was facing the screen. He moved her underwear to the side and inserted his penis into her vagina.134 She recalled that he used his hands to rock her hips, but she could not say how the incident came to an end or recall any other details.135 123 T62.27-29. 124 T63.37. 125 T63.1-3. 126 T63.12-22. 127 T63.24. 128 T63.31-35. 129 T64.2-3. 130 T64.32-38. 131 T65.3-4. 132 T66.17-18. 133 T66.21. 134 T66.23-29. 135 T66.32. -- 17 of 96 -- [2024] SADC 106 16 90 There were only one or two other people in the cinema at the time. [JR] remembered it being dark and that she tried to keep quiet.136 Granite Island incident 91 [JR] gave evidence about a time that she and the accused visited Granite Island. They began in Victor Harbour and took the horse-drawn tram over to the island. She remembered that he made attempts to pull her close and put his arm around her, however she avoided his advances and shrugged him off; she said she was embarrassed that people would think they were in a relationship.137 92 She remembered walking on the walking trail around Granite Island. They had sex in the shrub area. [JR] drew a diagram of the location where she and the accused had sex (Exhibit P6).138 She said that she was facing the left-hand side of the rectangle and was laying on her back.139 She explained that the circle that she drew around the area depicted the location of the path that the incident occurred in.140 93 She confirmed that they had sex just off the path. She remembered that they both kept their clothes on but that they were pulled down such that the accused was able to insert his penis inside her vagina in a missionary style position.141 The incident lasted a few minutes.142 Incidents at the Jeffrey Street address 94 When [JR] first moved into this address, she remembered that the accused wanted to have sex on the bed with her. [JR] refused, and she recalled him being annoyed because of this.143 95 She was not able to recall any other sexual encounters at this address. General nature of relationship with the accused 96 [JR] was then questioned about how the accused would treat her generally during the relationship. She said that the accused would always tell her that she was smart, pretty, and more mature than other girls her age.144 This made [JR] feel special because she did not receive compliments at home. 97 She said that there were a lot of things going on at home around this time and she felt unsafe due to being regularly assaulted.145 [JR] was asked how her relationship was going with the accused whilst considering her above 136 T66.9-10. 137 T67.1-5. 138 T67.17-18. 139 T67.30-31. 140 T67.36-38. 141 T68.7-10. 142 T68.11-13. 143 T72.5-7. 144 T35.20-27. 145 T36.16. -- 18 of 96 -- [2024] SADC 106 17 circumstances at home. [JR] felt as though she had to continue with the accused because ‘at least [she] wasn’t being physically assaulted’, as well as there being no risk of dying.146 She said the accused would also cook for her and focus a lot of time and energy on her. The accused made [JR] uncomfortable 98 [JR] said one of the main things that made her uncomfortable was the way the accused spoke to her like an adult. She said he tried to encourage her to move in with him, and that she should lie about the nature of their relationship by telling people he was her father. 99 [JR] spoke of an occasion where the accused took her to a sex shop that was close to her school. She remembered wearing her school uniform and the accused wanting to look at the pornographic DVDs. She felt embarrassed and worried that someone would see her in her school uniform. She was shocked that she was let in with her school uniform.147 Phone calls with the accused 100 Whilst living at [N] and [B]’s home, [JR] would speak to the accused over the phone. At this time, she was sharing a room with [AB]. [JR] recalled that she knew the phone calls with the accused were disturbing [AB] as she complained about being on the phone at night-time.148 101 During some of these phone calls, [JR] said the accused would speak in a low-deep voice and count to 100 whilst he encouraged her to masturbate on the phone.149 She said that this counting conversation happened on at least 10 separate occasions and that the majority of the incidents occurred when she lived at [N] and [B]’s, although it may have happened once or twice when she lived at [JG] and [K]’s.150 She confirmed that [AB] was present in the room when it happened at [N] and [B]’s.151 102 [JR] stated that she in fact did masturbate whilst the accused was on the phone. She said she would be under the covers of her bed while she did this.152 She could not recall speaking about anything else with the accused during these phone calls.153 The accused picking [JR] up in green utility vehicle 103 Other than the one occasion [JR] could remember the accused picking her up in his taxi, he typically would collect her, when she was living with her family, in 146 T36.20-22. 147 T75.12-19. 148 T38.29-34. 149 T38.32-34. 150 T39.11-14. 151 T39.17. 152 T39.24-29. 153 T39.32. -- 19 of 96 -- [2024] SADC 106 18 a green utility vehicle at the end of her road. She remembered this because of her fear of snakes, she would walk the long way to get to the pickup spot as opposed to the short cut through the scrub.154 104 The accused would also pick her up from the granny flat and she believed he had also picked her up at [JG] and [K]’s house. However, she said he did not pick her up from the front of the house, and instead would collect her down the street.155 Use of contraception 105 [JR] started using the contraceptive pill but could not say when she started using it. She estimated it was either when she was living with her family or living in Murray Bridge. 106 [JR] said the accused never wore condoms and used the withdrawal method, but noted that there were also times that he ejaculated inside her.156 Initial complaint evidence 107 After living at the granny flat, [JR] moved to [JU]’s house. She said she met [JU] when walking to school. [JU] worked at a fibreglass factory and she was whistled at by him and some workmates as she walked by. She then met [JU] out one night. 108 When talking to [JU], she told him about the situation with the accused, including that he filmed her having sex with him, and that she wanted to stop seeing him and having sex with him. [JU] was the first person she had spoken to about the situation with the accused. 109 She told [JU] the accused’s name.157 Last conversation with the accused 110 As mentioned above, at the time of moving into the Jeffrey Street address, [JR] gave evidence that at this point she made efforts to distance herself from the accused. She explained she did this by not answering his calls, or if she did answer, she would purposely keep the conversation brief.158 111 She said that the accused was unaware that [JU] intended to move in with her at the Jeffrey Street address. 112 [JR] said the last time she recalled speaking to the accused was after she moved out of the Jeffrey Street unit. They spoke about a cleaning charge following 154 T64.12-17. 155 T64.29. 156 T73.14-19. 157 T70.6-7. 158 T72.13-14 -- 20 of 96 -- [2024] SADC 106 19 the move out.159 After this conversation, [JR] could not recall ever speaking to the accused again.160 Cross-examination Chronology of addresses 113 [JR] confirmed the following details about her living arrangements. She confirmed that she found it easier to pinpoint when she lived at certain addresses based on what year level she was at school, as opposed to specific dates or ages.161 Jeffrey Street address 114 She believed that it was around the end of year 11 when she lived at this address.162 She believed that the minimum time she would have lived there is eight or nine months.163 [JU]’s house 115 Immediately preceding this, she lived at [JU]’s house with his family.164 She said she stayed there for a couple of weeks and shared a bedroom and a bed with [JU].165 Granny flat 116 She believed she moved out of the granny flat when she was around 15 years old or when she had recently turned 16. She lived at the granny flat because [K] found her the address to live at before the church lady’s address. She stayed at the granny flat for around three to four months.166 Church lady’s house 117 [JR] confirmed she stayed at this address for only a matter of weeks.167 [JG] and [K]’s house 118 [JR] confirmed that prior to living at the Church lady’s house, she stayed with [JG] and [K] for between six to eight months.168 When [JR] returned to school for year 11 after finishing year 10, she stayed with [JG] and [K]. She said she did not stay at this address long due to [JG] and [K] finding out about the behaviour of her father.169 When they found out about her homelife, she ceased visiting her parent’s 159 T72.34-35 160 T73.10 161 T79.11-12 162 T79.15-16. 163 T79.24. 164 T79.27. 165 T79.28-38. 166 T81.1. 167 T81.5. 168 T81.9. 169 T82.33. -- 21 of 96 -- [2024] SADC 106 20 house. She said [JG] and [K] became aware of this not long after her staying with them. She was not able to be more specific with the time frame regarding this point.170 Homestay with [N] and [B] 119 [JR] confirmed that whilst living in her home-town she also had a homestay arrangement at [N] and [B]’s house. This first began when she commenced year 10. She stopped staying there at the end of year 10 and started the homestay arrangement at [JG] and [K]’s place at the start of year 11. Disclosure to IT coordinator 120 When [JR] was asked about how [JG] and [K] came to find out about her home life, she said that it was due to her telling an IT coordinator. [JR] said she used to stay behind in the IT room at school and told him during one of these occasions. 121 After telling the IT coordinator, [JR] believed it was only a matter of weeks before ‘everything came out’.171 [JR] clarified that by ‘everything’ she meant ‘the abuse that had happened to me by my mother and father and the abuse occurring between my father and mother’.172 Insofar as she was aware, [JR] said it was only the IT coordinator and [JG] that were made aware of this; she was not sure if other teachers at her school knew.173 She said that she told police that she was being abused at home but did not follow through with a complete statement as she felt like she was not being taken seriously.174 She said that she was not able to recall specifically if she spoke to friends about the abuse, although she ‘may have discussed with them or they may have also observed [her] behaviours as a bit unusual and seen that [she] didn’t have parents around’.175 122 After [JG] and [K] found out about the alleged abuse, [JR] said they told her ‘You are not returning [home]. You are coming home with us’.176 Approach when providing statements to police 123 [JR] agreed that she had spoken to police about the events that relate to the trial.177 She agreed that over the course of the investigation she provided five statements to police.178 She said that she was as careful as she could be when it came to including only accurate information in said statements, and that she signed 170 T83.9. 171 T83.23-24. 172 T84.14-16. 173 T84.22. 174 T84.23-36. 175 T85.3-6. 176 T83.28. 177 T85.11. 178 T85.17. -- 22 of 96 -- [2024] SADC 106 21 them and highlighted any mistakes to police who assisted in drafting the statements; she would not sign it if the statement contained errors.179 124 [JR] agreed that her original statement to police was 56 paragraphs long and agreed that she thought about it quite a lot before signing it.180 She agreed that she sent two long emails to the investigating officer.181 First phone call with the accused 125 [JR] confirmed that the first time she spoke with the accused it was following the diverted phone call. She remembered the phone call occurring on a ‘warmer type of night’.182 She said that she typically made phone calls after 9 pm because she had free calls after that time.183 126 This occurred at the start of the school year when she was in year 10.184 127 [JR] was questioned about why she told the Court that she never spoke to [TM] about the phone diverting incident. She explained that she took the question during examination-in-chief to be asking whether she had spoken to [TM] about the offending. She then confirmed that she did tell [TM] that her phone had diverted to an unknown person. She was not able to say whether [TM] said anything in response to this.185 128 She said that she did not call [TM] again after attempting to call her on that occasion when the phone diverted. 129 [JR] confirmed that she told the unknown man, who was the accused, her age on the phone. She said she could not recall if she said she was 14 or 15, but she told him the age that she actually was at the time.186 130 She agreed that when providing a statement to the police about this incident, she said that she told the male that she was only ‘14 or nearly 15 years old’.187 131 She agreed she spoke to the accused for some time during the phone call, for around 40 minutes.188 132 Later in cross examination she was asked how she performed the phone call. [JR] said she had a mobile but was at first unsure whether she had the same phone number consistently throughout the relevant period for events related to the trial.189 179 T85.30. 180 T93.17. 181 T93.25. 182 T87.3. 183 T87.5-6. 184 T86.22-27. 185 T88.3-5. 186 T89.12-13. 187 T89.20-28. 188 T90.1-2. 189 T157.29-158.1-9. -- 23 of 96 -- [2024] SADC 106 22 [JR] was directed to page 29 of MFI D7. She remembered that she had her number on a social media page (she believed either on Myspace or Facebook) and told Detective Stone that whilst she was unsure, she thought it could have been the phone number she had throughout the relevant times. The phone number in question ended in 521.190 Meeting with the accused following the phone call 133 [JR] confirmed that she agreed to meet the accused after the phone call and clarified that, at the time of providing a statement to police, she had not meant that immediately following the phone call that [JR] had picked her up, and instead she met him a week later in her home-town.191 134 She gave evidence that she did not immediately meet with the accused following the phone call, but accepted that her police statement said she did.192 Abuse at home 135 [JR] was asked about the incident where both she and her mother were assaulted, and her mother threatened to take her own life. She was asked why she called the accused to collect her from the house as opposed to [N] and/or [B]. [JR] explained that she did not believe [N] or [B] would help her, and she was concerned that she would be kicked out of their house due to the associated stress and trauma of her homelife.193 136 [JR] believed that the police came that night, but she could not recall speaking to them. At that time, she did not believe that the police would help her.194 The complainant said that hours passed between when she called the accused and him coming to the house to collect her.195 137 She could not recall if her mother’s injuries were readily obvious.196 138 [JR] said that this was the incident that sticks out in her mind as a time that her mother made drastic threats and appeared willing to carry them out. 139 After this incident, [JR] believed that this was the last time she lived at the family house. She confirmed she did not return.197 140 [JR] agreed that she had told police that her father had tied her up. She said this happened on one occasion when she was living at the family house.198 190 T159.1-14. 191 T91.1-5. 192 T91.38. 193 T102.32-37. 194 T104.11. 195 T104.37. 196 T104.14. 197 T153.22-27. 198 T190.21-33. -- 24 of 96 -- [2024] SADC 106 23 Disclosing abuse at home to others 141 [JR] agreed that her father’s behaviour was highly abusive and violent, although she caveated this by explaining this was an understatement. [JR] said that when she told [JG] and [K] about her father’s actions, she said she did not explain to the extent that she did when drafting the police statement. She was unsure if they understood the magnitude of the abuse.199 She could not recall whether she told them that her father was sexually abusing her, but [JR] gave evidence that whilst her father was a ‘psychopath … he did not sexually abuse’ her.200 142 She agreed that the reason she never returned home and was living at [JG] and [K]’s house was to avoid what her father was doing.201 She did not report this abuse to the police because she believed that an adult would do it on her behalf. She said she was around 15 or 16 years old at this stage.202 143 [JR] said she did not tell [N] and [B] about the violence at home and recalled them not understanding why she could sometimes be emotional.203 She explained that she was fearful that if she mentioned it, she would be returned home and subsequently killed by her father.204 144 [JR] said that she told the IT coordinator about the abuse at the hands of her father, but that she did not disclose being sexually abused by the accused to that individual.205 She suspected that this is how the school found out about her home life. She said the reason she told the IT worker was because she was seeking comfort.206 She said she did not think she told him about the accused because she considered what was happening with the accused to be far more shameful and traumatic.207 145 [JR] confirmed she reported her father to the police at the local police station in her home-town,208 which confirmed her belief that no adult cared about what was happening to her.209 She said she had no way of knowing how old she was but agreed she had told police in later statements that she was only about 15 years old.210 146 [JR] said she did not tell police at this stage due to experiencing deep shame.211 199 T162.12-24. 200 T164.19-20. 201 T162.25-28. 202 T164.10-18. 203 T100.23-24. 204 T100.25. 205 T165.12-18. 206 T165.19-20. 207 T165.26-30. 208 T166.26-27. 209 T166.7-11. 210 T166.32-167.1. 211 T167.4-5. -- 25 of 96 -- [2024] SADC 106 24 147 She remembered talking to Child Protection Services (‘CPS’) at school but could not remember how old she was.212 She remembered being completely terrified to tell CPS anything because she was scared she was going to be sent back to her family home.213 She was also scared that if she reported anything to do with her father, it would get back to him and things would escalate and that abuse would worsen.214 Telling others about the accused 148 When the accused picked her up at the end of her street, she explained that no one knew who she was with or where she was and that no one would have noticed or cared.215 1. Telling [TM] 149 [JR] said she was fairly sure she called [TM] prior to the second half of 2002.216 She did not believe she said anything to [TM] about sexual activity with the accused either; or at least not following the first conversation where she may have only mentioned the accused’s name to [TM].217 Later in cross-examination, [JR] confirmed that she had told [TM] that her phone call to her had diverted to an unknown adult male.218 2. Telling CPS 150 [JR] did not tell CPS about the accused because she was ashamed, and, although she was not sure, she believed her sister may have been present during the conversation with CPS.219 She reiterated this later in cross-examination, specifically that she had a great deal of distrust towards adults generally.220 3. Telling [JU] 151 [JR] confirmed that she told [JU] about the abuse whilst she was living at the granny flat. She said she told [JU] prior to staying with him for two to four weeks at his house.221 4. Living at the granny flat and telling [JB] 152 It was suggested to the complainant that she told [JB] that she did not want the accused coming around the house, [JR] agreed with this.222 212 T167.13-15. 213 T167.9-12. 214 T168.13-14. 215 T100.10-14. 216 T102.11-12. 217 T140.31. 218 T153.18-20. 219 T168.4-9. 220 T168.20-23. 221 T168.24-37. 222 T169.19-24. -- 26 of 96 -- [2024] SADC 106 25 153 It was put to [JR] that despite this, she continued to invite the accused around. [JR] disagreed and said she did not consider her actions to constitute ‘inviting’ him. She said that if the accused asked to come to the house she would say yes, and her reasoning behind this was because she was thinking about where she would live if her housing with [JB] fell through.223 5. Telling the police about the accused’s appearance 154 [JR] agreed that she saw the accused naked on many occasions, including his front and back.224 She said that she did not examine his body in detail. It was put to [JR] that when she provided a statement to police, she told them that he had no tattoos or other markings or scars that she could remember. She agreed she said that, but said she wished she had said that she did not observe his body in detail at the time. 155 It was put to [JR] that the accused had a large surgical scar in the middle of his back, [JR] said she was unsure how to respond to this statement.225 She rejected the suggestion that she had never seen the accused’s naked back.226 She agreed with the suggestion that she did not realise he had a scar because she had missed it.227 Particularised incidents First incident (sports oval) 156 [JR] recalled it being a warm time of year during the first incident at the sports oval.228 157 She described the towel as a soft linen towel/blanket. She said when she gave evidence in examination-in-chief that it was specifically a towel. What she had in fact meant was that it was soft bedding; she said that she had only hoped to express that the accused had laid something soft for them to lay down on.229 158 She agreed that she had initially told police that the accused put the towel on the driver’s side, but now believed it was the passenger side. She said that she came to this conclusion because she had thought about the events repeatedly.230 159 She confirmed that when he first touched her on the vagina on the outside of her clothing, she was sitting in the passenger seat, and he was sitting in the driver’s 223 T169.19-33. 224 T177.27-33. 225 T178.34-37. 226 T179.3-6. 227 T179.16-18. 228 T99.14. 229 T92.17-22. 230 T92.31-35. -- 27 of 96 -- [2024] SADC 106 26 seat of the car.231 She said whilst they were still in the car, he then proceeded to touch her on the vagina under her underwear.232 160 She confirmed that the accused also touched her vagina whilst they were outside the car as well as when they were inside the vehicle.233 161 [JR] was then queried about inconsistencies with her statement to police and with her recollection of this first incident in examination-in-chief. She said she did not tell police specifically that the accused touched her both over and under her underwear because at the time of drafting the statement, the act of the accused putting his hand underneath her underwear was the ‘most traumatising part’.234 She said that she was merely explaining the incident as she was able to recall it in that particular moment; as opposed to remembering something new.235 162 [JR] went on to say that the incident concluded because the accused ejaculated insider her vagina. She was not on any form of contraception at the time, although she did not believe she made the accused aware of this.236 She confirmed that she was dropped back to the end of the road near her family home.237 Second incident (Baan Hill) 163 After the first incident, [JR] said she was shocked, disgusted at herself, and mortified by the events that had transpired. Despite feeling like this, [JR] expressed how talking to the accused over the phone was a welcome respite from the abuse she was experiencing at home, where she felt like she could die.238 [JR] agreed that she only spent from Friday evening to Sunday (to about the middle of the day) at home which amounted to less than 48 hours.239 164 [JR] thought that the Baan Hill incident occurred only a few weeks after the first incident. She believed it was a warm time of year.240 When she made this arrangement to meet the accused again, she reasoned that they would likely have sex again, but felt that this was a safer option compared with what she was experiencing at home. She explained that feeling mortified was ‘better than being killed’.241 165 At this stage she had not told [N] and [B] what was happening at home.242 231 T94.9-15. 232 T94.16-18. 233 T94.33. 234 T95.15-16. 235 T95.20. 236 T95.25-30. 237 T95.37. 238 T96.18-25. 239 T96.25-30. 240 T99.17. 241 T97.5. 242 T97.8. -- 28 of 96 -- [2024] SADC 106 27 166 [JR] confirmed that the accused had tied her up and had sex with her. She said that after this incident she felt very unhappy, ashamed, and disgusted and that she was aware that the accused was doing the wrong thing.243 167 [JR] was directed to consider her previous statements to the police where she said, 'every time I saw his green tray-top ute arriving as I stood at the end of the street I had a sick and nauseous feeling in my stomach'.244 She explained that she felt safer with a man who tied her up and had sex with her in the back of a ute, and that she believes she is lucky to be alive due to the abuse she was experiencing at home.245 168 Following the second incident, [JR] said she met up with the accused either the next week, or the week after.246 She clarified that despite feeling safer with the accused than she did at home, she was still scared that if she did not comply with what the accused wanted her to do, he might leave her at Baan Hill; she was not scared of him killing her.247 She said at the time she felt like she was making life or death decisions. Incidents at the accused’s mother’s house 169 [JR] confirmed that when the accused collected her after the incident where her mother threatened to kill herself, he took her to his mother’s house.248 On the journey from her hometown to the accused’s mother’s house she said she felt like she was running on adrenaline.249 170 [JR] said that she went to the accused’s mother’s house around four times. She was then directed to her statement to police250 that contradicted this. She said after this incident where the accused collected her from Her home-town, she did not attend the mother’s house again. She agreed that this is what she had told police but explained that she was only able to recall incidents as opposed to their chronological order. 171 [JR] was pressed on the inconsistency between her statement to police that ‘I don’t think we went there again after that’ and her saying that she went to the house on approximately four occasions. She stated that she became aware of his mother's reluctance to have her at the house around the time of either the last visit or the second to last visit.251 Later in cross-examination, [JR] confirmed that despite 243 T97.28-32. 244 T98.3-7. 245 T98.12-18. 246 T97.25. 247 T99.35-36. 248 T104.29. 249 T105.13-14. 250 Statement of [JR] dated 29 February 2020, para 21. 251 T108.24-25. -- 29 of 96 -- [2024] SADC 106 28 the wording of the statement, she did visit the accused’s mother’s house on multiple occasions.252 172 The first time she visited the house, she did not see the accused’s mother, but believed the mother was at home. 173 [JR] said that each time she visited the accused’s mother’s house she had sex with the accused. On each occasion, but for the incident where the accused shaved her vagina, he filmed them having sex.253 She said she believed, but could not recall, whether this included the first time she visited the house after the incident involving her mother.254 174 [JR] was referred to her statement to police on 25 September where she stated that the accused ‘filmed our sexual acts on a webcam and live streamed this activity and this happened on every occasion I was at his mother's house'. She agreed that she had said that to police, but could not recall whether she was in fact filmed on the first visit to the accused’s mother’s house. The accused filming at his mother’s house 175 [JR] said she was filmed via a computer and webcam, and that she believed it was being transmitted via the internet live to other people. She said that this was the way she was filmed at the accused’s mother’s house.255 She said the accused did not film her using a hand-held video camera or a mobile phone.256 176 [JR] said she could see ‘things popping up’ and that she recognised the computer program as being MSN Messenger, which she had personal experience with.257 She said that she did not see the screen every time, but she thought that it was always MSN messenger used in the filming and transmission of the sexual activity.258 She agreed that despite not seeing the screen every time, she told police that he ‘always used MSN messenger’ for filming purposes.259 177 [JR] said that the accused told her that the video was being broadcasted on the internet, albeit she was not able to see proof of this. On occasion, she could hear ‘pings’ or sounds during the alleged filming.260 178 She said the accused told her this at the onset of when he began filming her, although she could not say for certain if it was on the first incident after he picked 252 T141.33. 253 T142.8-12. 254 T142.13-19. 255 T143.21-33. 256 T143.34-37. 257 T144.2-9. 258 T144.18-21. 259 T144.29-31. 260 T146.5-15. -- 30 of 96 -- [2024] SADC 106 29 her up following her mother’s suicide threat.261 She confirmed that it did not occur later when they had sexual encounters at Meadows or at the granny flat address.262 Email to Detective Stone – 26 February 2020 179 [JR] was shown MFI D7. She agreed that the email contained a narrative of her allegations against the accused.263 She was referred specifically to paragraphs 13-15 and agreed that in the email where she described incidents at the accused’s mother’s house, she accepted that she did not include information about the accused notifying her that 200 people were watching.264 180 She agreed that in the email she said that the time the accused told her that 200 people were watching was in fact at Meadows.265 She agreed that her evidence was different to what she said in the email.266 181 She was then referred to her statement to police dated 29 February 2020, where she told police that the first time the accused told her 200 people were watching her was at his mother’s house.267 182 When asked to explain the inconsistency between the email and the statement to police, [JR] explained that as she thought over things, some aspects would become clearer, whilst others would become unclear; she elaborated that as she was at this point just beginning to share her story, and that it was not going to be explained perfectly.268 Layout of the accused’s bedroom 183 [JR] said the bed was either a queen size or double bed.269 She was not able to provide an estimate of the size of the room.270 184 When describing the angle of the computer to the bed, she said it was facing the bed.271 185 [JR] was asked more questions about this later in cross-examination. She was referred to Exhibit P2. She explained that when lying on the bed, she would lie with her head against the wall that was displayed on the right-hand side of the diagram.272 She clarified that the bed is side on to the table and chair.273 261 T146.16-24. 262 T146.25-26. 263 T148.21-25. 264 T149.10-28. 265 T150.20-23. 266 T150.28-36. 267 T151.6-16. 268 T151.18-24. 269 T144.37. 270 T145.1. 271 T145.37-146.1. 272 T186.21-23. 273 T186.35-37. -- 31 of 96 -- [2024] SADC 106 30 186 [JR] was unable to say where the accused’s bedroom was located in his mother’s house. However, she accepted that when she signed the statement, she had said that it was to the rear right-hand side of the house.274 It was put to the complainant that the accused’s bedroom was in fact on the rear left side of the house; to which she justified her answer by explaining that it was dark; that she was disorientated, and that she still finds it difficult to comprehend the layout of a house as an adult, even if it was somewhere she had attended multiple times.275 Incidents at hotels 187 [JR] agreed that she told police that the accused took her to the Ibis Hotel on Grenfell Street and conceded that the Ibis Hotel on Grenfell Street was not built until around 10 years after 2002.276 During her email correspondence with Detective Stone in July 2021, [JR] agreed that it was brought to her attention that the hotel was not built at this point.277 It was put that the emails show that [JR] suggested the hotel could have been a Novatel or Sofitel hotel. Again, Detective Stone alerted her to the fact that these hotels were not built at the relevant times.278 She explained that she thought this way because she did not frequent Adelaide and was not familiar with it.279 188 [JR] was asked why her original statement did not refer to the fact that she visited hotels four or five times with the accused. She replied that it was due to the number of incidents. She disagreed that it was because she was making deliberate changes to her story to avoid an obvious problem with her version of events. She said it was because she was a ‘small town child … completely out of [her] depth with even knowing where [she] was’.280 Taxi incident 189 [JR] confirmed that during this incident, whilst she and the accused were having sex, she pocket-dialled her mother. She was not sure how it happened or how she discovered she was calling her mother and when she realised, she hung up.281 She was not able to say how long the phone call went for. She said that her mother did not mention it to her. 282 Incidents at the accused’s house at Meadows 190 [JR] said she was unable to estimate when she first attended this address.283 274 T187.7-15. 275 T187.16-22. 276 T155.1-7. 277 [JR] was shown MFI D7 and directed to pages 26 and 27. 278 T156.14-22. 279 T156.31-38. 280 T157.7-28. 281 T159.15-29. 282 T160.1-3. 283 T160.4-7. -- 32 of 96 -- [2024] SADC 106 31 191 She agreed that filming of sexual activity occurred at this address as well but could not confirm if the same webcam was used.284 192 It was suggested that the accused never lived at an address at Meadows. [JR] said that she did not know the area and that the accused spoke about Meadows a lot, so she assumed it to be where he lived; although she caveated this by saying that the accused could have told her the name of any suburb and she would have believed him.285 She thought it was at Meadows, and that was how she referred to it in statements. She said there weren’t signs to confirm this like in the busier areas. She said that she agreed she had not pointed out the Meadows house on a map whilst providing statements to police.286 Incidents at the granny flat 193 Despite not wanting the accused to visit her, [JR] said he continued to do so. [JR] confirmed that the filming of sexual acts continued at this address.287 194 [JR] was not sure if there was a telephone line to the house. She said there was a mobile phone in the flat but she was not sure if there was a landline telephone. She said all her utilities were paid through [JB], and that she just paid rent or board.288 195 She confirmed that she had access to the internet, although she could not recall how exactly she accessed it, whether it was wi-fi or if she plugged a line into the computer.289 196 She said there was a laptop with a webcam on top of it; that is a web cam that was separate to the laptop itself. She confirmed these were both her own laptop and webcam and were what the accused used to film her performing sexual acts.290 [JR] confirmed she was filmed by the accused on multiple occasions at this address.291 She was asked why, if she was in possession of the laptop and webcam, she did not hide them from the accused. She said it simply had never occurred to her to hide them or dispose of them. She believed if she had hidden them, he would simply look for them and find them in any event.292 Incident at Granite Island 197 [JR] agreed that she had been out in public with the accused. For example, the incident where she and the accused went to the cinema together. She said she 284 T160.14-20. 285 T160.25-30. 286 T161.26-30. 287 T169.3-5. 288 T170.10-23. 289 T170.36-37. 290 T171.3-11. 291 T171.17-20. 292 T171.17-173.4. -- 33 of 96 -- [2024] SADC 106 32 believed that going to the cinemas at Marion with the accused occurred prior to incident that occurred at Granite Island.293 198 She said that the accused had not been as physically affectionate with her in public prior to the Granite Island incident, so she did not necessarily expect it. She also did not expect for him to try and have sex with her.294 199 [JR] said that she did not remember there being many people on Granite Island at the time, but it was not completely deserted. 200 [JR] said she assumed this incident occurred on a weekend because she was not at school, although it may have been during the school holidays.295 201 [JR] was not sure, but assumed, that the spot in which they had sex was deliberately off the path so that people would not be able to stumble upon them.296 202 [JR]’s statement to police, dated 29 February 2020, was read to her which stated that they ‘had sex on a walking trail at Granite Island … I was lying on the dirt path and the accused was on top of me’.297 [JR] agreed that that is what she said in her statement. She was asked to explain the inconsistency between her statement which stated that they had sex on the path versus her evidence that it occurred off the path. She clarified what she meant was that the entirety of Granite Island was a dirt trail, and that it was somewhere on or around the dirt trail. 203 When asked further questions about this difference, she said she believed it was a matter of semantics and that the inconsistency could be put down to the style in which she personally communicates.298 204 It was put to [JR] that she never went to Granite Island with the accused. She disagreed. 205 It was put to [JR] that instead of the accused, she went to Granite Island with [JU]. [JR] disagreed and said that she may have gone to Granite Island with [JU] on another or other occasions, although she could not specifically recall. She said that this incident did not occur with [JU] and that [JU] never sexually assaulted her.299 Report made by Sergio (unconfirmed) to police 206 [JR] was asked about a police report made by someone that outlined that [JR] had sent them messages about how someone had broken her fingers, slapped her, 293 T173.24-31. 294 T174.2-4. 295 T174.21-23. 296 T175.22-24. 297 T175.26-33. 298 T176.33-37-T177.2. 299 T177.10-21. -- 34 of 96 -- [2024] SADC 106 33 raped her, punched, and strangled her.300 She asked if the report was made by someone called Sergio, and said his English was very poor. [JR] said she was unsure if she had told anyone about this incident at the time. Statements to Dr Gupta 207 [JR] was asked whether in mid-2018 she had any mental health difficulties, to which [JR] replied she had had mental health difficulties her entire life.301 She agreed that at this point her mental illness had worsened to the point that she voluntarily went to hospital.302 208 She agreed that at some point around this time she had a conversation with a Dr Gupta.303 She believed this occurred after she was discharged. She accepted that Dr Gupta’s report was dated 28 June 2018.304 209 She was asked whether she told Dr Gupta that from 13 to 16 years of age she was sexually abused and filmed by an unknown person who comforted her. She, in her evidence, denied saying that because the person was not unknown to her.305 ‘She denied telling Dr Gupta that she was sexually abused from age 13 to 16.306 She said that she would not have used the phrase the ‘film was circulated on the internet’.307 210 She denied ever telling Dr Gupta that from a young age she was sexually abused on multiple occasions by multiple people, and that some of them were known and some of them were strangers. [JR] emphasised that the only person who had ever sexually abused her ‘like this’ was the accused.308 211 A statement of Agreed Facts was tendered as Exhibit P16. The contents were admitted pursuant to s 34 of the Evidence Act (‘EA’). On this topic, the Agreed Facts relevantly included the following: Dr Gupta - Agreed Facts Mental Health Assessment 28 June 2018 8. On 28 June 2018 Dr Arun Gupta a consultant psychiatrist with Southern Mental Health, produced a comprehensive mental health assessment report following an appointment with [JR]. 9. The report records: 300 T180.19-26. 301 T181.20-25. 302 T181.26-32. 303 T182.6-7. 304 T182.18-20. 305 T183.8-18. 306 T183.19-21. 307 T183.24-26. 308 T183.27-31; T184.1. -- 35 of 96 -- [2024] SADC 106 34 From 13 years to 16 years of age she was sexually abused and filmed by an unknown person who comforted her at the time. She said that this was circled on the internet which makes her feel a bit paranoid about her safety in multiple locations. During a young age she was sexually abused on multiple occasions by multiple people. Some of them were known and some of them were strangers which has obviously not helped her trust in relationships and trust in men in particular. 10. Dr Gupta has no independent recollection of meeting [JR] or of what was said during the assessment. 11. Dr Gupta would be relying solely on the report as his evidence if he were required to give oral evidence in this matter. 12. It is his usual practice to record what was said during an assessment as accurately as possible. Dr Gupta does not believe he deviated from this practice in this assessment. Conversation with [JB] 212 [JR] confirmed that [JB] was the lady that owned the granny flat. She admitted that she contacted [JB] via Facebook messenger after contacting her daughter requesting [JB]’s contact details.309 [JR] was shown a copy of the Facebook conversation. She agreed that the conversation occurred after going to the police about this matter.310 She said that she never called [JB] over the phone.311 213 She said she could not recall sending the message but agreed that it outlined that a man with the same name as the accused had sexually abused her when she was 14 and that on one occasion [JB] told him to leave when he came to her house.312 214 She sent these Facebook messages to Detective Stone. She disagreed with the suggestions that she sent the messages to [JB] to encourage her to give certain evidence to assist her case in the trial.313 Reference propositions 215 [JR] rejected the suggestion that she had not met the accused via a phone call from [TM]’s phone but instead met him on an online chat room.314 216 [JR] rejected the suggestions that she came to know the accused better because she accessed his services as a taxi driver on a number of occasions; she said that there were no taxis in her hometown. She rejected this despite the fact that she had previously lived in both her hometown and Murray Bridge.315 309 T187.28-T188.4; T189.5-9. 310 T187.12-15. 311 T189. 312 T189.31-37. 313 T190.4-20. 314 T190.34-191-2. 315 T191.3-14. -- 36 of 96 -- [2024] SADC 106 35 217 [JR] rejected the suggestion that she had told the accused that she had been sexually abused by somebody or more than one person.316 Following from this, she said that whilst she agreed that the accused disclosed that he had personally been sexually abused in the past, it was not because she had disclosed a similar statement to him first.317 She agreed that the accused had told her he had been sexually abused by his father.318 218 It was put to [JR] that she was having difficulties finding housing around the time she had to leave the granny flat. [JR] said that she was not sure if it was actually difficult, or if the accused was having difficulties finding her housing.319 219 [JR] agreed that at some point she left the granny flat because she had thought she had been locked out and immediately after this she went to [JU]’s parent’s house.320 She agreed that she had concerns about outstaying her welcome at [JU]’s parent’s house.321 She said she could have told the accused about these concerns. 220 It was suggested that the accused only agreed to be a guarantor on a lease for her because she was at risk of homelessness, and he felt sorry for her. [JR] replied that [JU]’s mother would never have ‘put her on the street’ and to this day she maintained a friendly relationship with her.322 221 [JR] had never heard of complaints about behaviour of the people living at the Jeffrey Street unit and allegations from the real estate agent that she and [JU] or others had been holding parties.323 She also disagreed that the accused had withdrawn as guarantor on this basis. [JR] explained that she was introverted and did not enjoy wild parties.324 222 [JR] rejected the suggestion that she and the accused had never had sex. She said that they had had sex multiple times and that he had ruined her life.325 223 She rejected the suggestions that the accused had never taken her to the sports oval or Baan Hill.326 224 [JR] disagreed entirely with the proposition that at no point a sexual relationship between her and the accused occurred, including any type of sexual activity whatsoever, penile-vaginal sex, oral sex or touching of any kind.327 316 T191.15-18. 317 T191.19-24. 318 T191.25-29. 319 T191.30-35. 320 T192. 321 T192.9-12. 322 T192.16-21. 323 T192.22-31. 324 T192.32-193.3. 325 T192.4-9. 326 T193.10-14. 327 T193.15-25. -- 37 of 96 -- [2024] SADC 106 36 225 [JR] said that the accused took her to cafes, the movies, Granite Island and had visited his mother’s house and his house at Meadows.328 226 [JR] said that if her descriptions of the two houses were inaccurate it was because it was something that she still struggles with today in her role as a housing officer, and that she still gets descriptions of houses wrong.329 Re-examination The Meadows address 227 [JR] said she thought that when the accused came to collect her, he mentioned the word ‘Meadows’ and that this suburb name stuck out in her mind.330 Hotels 228 [JR] confirmed that she was not familiar with Adelaide during 2023 and 2024, and that the only time she typically visited Adelaide was when she would see her aunty and uncle in West Beach.331 229 [JR] said she had performed her own research or investigation surrounding the matter, and she did so because she was not familiar with the areas and wanted to try and find them, she said it allowed her a sense of control and would be beneficial to her healing process.332 Incident where [JR]’s mother threatened suicide 230 [JR] confirmed that she waited at the end of Bews Road for a couple of hours for the accused to arrive. Lack of trust in adults 231 When asked about what trust [JR] instilled in the accused, she said that he was a constant in her life whilst staying at different places and experiencing ‘chaos’.333 Using the accused for his taxi service 232 [JR] said that she was on a very low income, which she described as a basic Centrelink allowance, to the extent that she received free food from the lady at the fish and chip shop. She had not used a taxi and said she would not have known how to order a taxi. 334 328 T193.27-36. 329 T193.37-194.6. 330 T194.25-195.5. 331 T195.6-25. 332 T195.37-196.14. 333 T198.4-6. 334 T198.18-33. -- 38 of 96 -- [2024] SADC 106 37 Dr Matthew Sorell Examination-in-chief Background 233 Dr Sorell is the senior lecturer in the School of Electrical and Electronic Engineering at the University of Adelaide; he specialises in telecommunications and multimedia systems. He has over 22 years of experience in teaching, developing and consulting in this area. Between 1998 and 2002, Dr Sorell was a senior research engineer and business development manager with Centre for Telecommunications Information Networking (‘CTIN’). He has experience in telecommunications technology over the past 22 years, including between 2001-2003. The report 234 Dr Sorell was approached by SAPOL to provide a report in this matter,335 specifically regarding the state of video streaming during the period of 2001 to 2003.336 To prepare said report, Dr Sorell was provided with the following materials:337 1. Two statements made by [JR] dated 29 February 2020 and 10 November 2020; 2. An addendum statement signed on 1 May 2022; 3. A form 24 expert evidence notice regarding this matter dated 26 August 2022; 4. A statement/letter related to Duncan Powell dated 19 July 2022; and 5. A report of Mar Noordin dated 19 August 2022. 235 Dr Sorell’s assessment focused on paragraph 23 of [JR]’s statement dated 19 February 2020.338 This paragraph included a description of the webcam set up next to the accused’s bed. 236 Dr Sorell crossed referenced the statement with historical material regarding technological advances in telecommunications from the period of 2001 to 2003. During this period, Dr Sorell recalled certain regulatory ‘pressure points’ concerning the new deployment of ‘commercial streaming’.339 He specifically referred to a report commissioned by the Office of Film and Literature 335 T200.25-28. 336 T201.1-4. 337 T202.15-16. 338 T20120-29. 339 T203.25-38. -- 39 of 96 -- [2024] SADC 106 38 Classification to report on new and emerging technologies.340 This report included analysis of sex-based content, which: … is often seen to be an early driver or an earlier indicator of technology trends, and to see how for example downloading a video, particularly, and interactive content was starting to emerge in that particular sector.341 237 Dr Sorell referred to this report throughout his evidence. The webcam 238 Dr Sorell confirmed that the webcam that matched the description in the statement would have existed and was widely available from 2001 onwards. He also emphasised the fact that technology had a far longer lifespan in the marketplace than today, but that there were big changes occurring at the time.342 According to Dr Sorell, this was a webcam available to the everyday customer and he made reference to a webcam he owned personally.343 Characteristics of his personal webcam (purchased at a similar time) were that it was approximately 50mm in diameter, resembled an eyeball with a camera ‘iris’ at the front, and a tripod foot to enable users to sit the webcam on top of a desk or computer monitor. 239 The resolution of such a webcam is comparable with the standard definition of television resolution of the era. It produced around 15 frames per second. Compared to the more expensive Handicams of the time, it was not particularly high quality. 344 The software 240 According to Dr Sorell, the operating system available during this time period was Windows XP (came out in 2001).345 Built into this program was Windows Movie Maker which enabled users to take and edit video clips, as well as import video from other sources. 241 Whilst the statement did not specify the software used, Dr Sorell said that this is an example of two-way communications software available during the relevant period. The webcam described and available during this period would also be able to operate with the computers at the time.346 242 Dr Sorell’s perspective concerning the software was that: Simply put, the question of the technology at the time, the camera or webcam technology existed, computers existed and were commonly available running the quite popular Windows XP operating system and that, in itself, had integrated software that allowed you to capture video at the different data rates that I've shown you. So, from a technological 340 T203.29-31. 341 T204.6-10. 342 T209.14-26. 343 T209.7-10. 344 T209.28-210.37. 345 T218.11-14. 346 T218.14-38. -- 40 of 96 -- [2024] SADC 106 39 perspective, the software, the hardware, the camera, existed. The ability to code video so it could be uploaded at either the lower dial-up or the higher broadband speeds existed.347 243 Dr Sorell explained that, whilst he believed it was a one-way video stream involved, he also investigated what other contemporaneous software was available.348 He performed a search of the web archive using the ‘Wayback Machine’, which allowed him to consider snapshots of websites over time. As a result of his search, he found software called ‘ICU’ or ‘CU-SeeMe’; which are examples of two-way video messaging piece of software that was available in March 2003.349 Dr Sorell said this was an example of two-way video communication that was available at the time, but that it was neither reliable, nor high quality.350 He said that whilst this was available in March 2003 he was exposed to such technology in the mid-1990s, although he did not think that this was representative of what the public would have had access to then.351 Latency of video chatting software at the time 244 Dr Sorell gave evidence that whilst there was two-way video technology available, there would have been significant issues with latency. 245 He referenced the work he did for the Office of Film and Literature Classification that involved examining the trends of sex-related content. From this work he recalled an example of a woman performing sexual acts: there was no sound and she occasionally looked at the screen and typed using the keyboard.352 He said that this particular recollection from 2003-2004353 struck him as analogous to the description in the report, despite being in a different context.354 He caveated this by explaining that he had access to university high-speed broadband network so it would not necessarily be representative of broadband capability in Australia.355 Streaming capabilities at the time 246 Dr Sorell said that it was entirely possible for a computer with Windows XP at the time to run more than one piece of software, with two windows open.356 247 Dr Sorell clarified that there are several types of video streaming. He referenced three types that produce different streaming experiences which, foundationally, are based on the same technology.357 347 T218.9-18. 348 T218.19-25. 349 T218.26-32. 350 T218.32-38. 351 T219.6-16. 352 T220.1-13. 353 T220.24-25. 354 T220.13-20. 355 T220.24-28. 356 T221.3-21. 357 T226.9-10. -- 41 of 96 -- [2024] SADC 106 40 248 One type is where someone plays back a video from a point of storage which is then delivered to a home desktop; an example of this is modern television. This requires a high degree of optimisation and coding. 249 The second type is a two-way video call which relies on the relative computational power of each person’s computers; this is challenging in terms of avoiding latency and during the relevant time period it would have involved significant delays due to the internet capabilities at the time.358 250 The third type is most relevant: a one-way stream from a camera at a domestic premises being coded with a short delay, delivered over the internet with some buffering on the other end due to the lack of constant data rate available at the time. He said with this type of streaming, the video could be viewed at the other end 10-15 seconds later.359 He confirmed this technology was available at the time and whilst it was not widely accessed, it was relatively straightforward to utilise for the technically inclined consumer.360 MSN messenger or MSN live 251 Dr Sorell explained that this was a two-way text-based communication that did not have video integrated into the software until 2009-2010.361 He could not recall whether the software enabled users to send files or still photographs at the relevant time.362 He agreed that it would have been possible to run MSN messenger and a streaming software simultaneously.363 Computer hardware for connectivity 252 Dr Sorell said it was common at the time to have a modem integrated into either a desktop or laptop computer, however as technology progressed it was more likely that a modem would be in the form of an external box to the computer. This would then connect to a telephone line with plug in via a filter to the back of the box. Wireless technology was beginning to emerge (i.e., Wi-Fi) at this time however initially individuals would use a short local area network cable or ethernet cable and plug it into the computer.364 Demonstrations 253 Three different demonstrations were performed at three different bandwidth speeds. Prosecution tendered the USB (Exhibit P9) with these demonstrations.365 358 T225.21-37. 359 T225.37-226.11. 360 T226.12-28. 361 T222.20-24. 362 T222.23-31. 363 T222.32-37. 364 T217.22-38. 365 Exhibit P9 with three test audiovisual files. -- 42 of 96 -- [2024] SADC 106 41 Summary of demonstrations & table 254 Using his personal devices, Dr Sorell performed some tests whereby he connected the USB based camera into a 2009 laptop that uses a 2001 vintage operating system. This test did not yield any connectivity issues. Whilst he conceded the limitation of not performing the test on a 2001 device also, his opinion was that there would not have been any significant differences as to what was ultimately achieved with this demonstration.366 255 Dr Sorell recognised that the statement by [JR] does not include any description of the video, but he assumed there would be a degree of significant latency.367 256 The three demonstration clips were played to the Court with the purpose of displaying the different levels of quality at the various bandwidth speeds. Dr Sorell walked through the various resolutions, and what one could expect in terms of quality and any buffering or lagging.368 257 The demonstrations did not include a microphone nor audio, which was common for the time. 366 T211.36-T212.16. 367 T215.7-10. 368 T213. -- 43 of 96 -- [2024] SADC 106 42 OVERVIEW OF DR SORELL’S DEMONSTRATIONS Exhibit P9 Data Rate Resolution* *Camera has ability to capture 640 pixels by 480 lines Evidence Provided Contemporaneously by Witness When Clip Played in Court Clip 1 - Movie38DialUp 38 KB per second, (within a conservative margin for a dial-up connection)369 • 160 pixels, so one in four, by 120 lines. • 15 frames per second • The resolution is one- quarter in each direction, or effectively one- sixteenth of the potential capability of this particular camera. It's grainy, low quality • Grainy blobby image • No issues with recording at this resolution in colour using that camera and old computer. • Witness said he would expect degradation of video if this recording was streamed due to real-time compression but that it would be broadly similar quality-wise.370 • Quality was representative of what was available during the relevant time period. This quality was what was available on dial- up in 2002.371 Clip 2 - Movie150ADSL This video quality was achievable to stream at 150KB per second but also conservatively achievable using and ADSL uplink speed of 256KB per second.372 • 320 pixels by 240 lines • Still 15 frames per second • Quality is twice as high as Clip 1 Clip 3 - Movie2100E1 The witness did not comment on the available data rate for this demonstration. • Full resolution of 640 pixels by 480 lines • Quality is as good as possible from that particular camera. • Significantly sharper, but still quite grainy compared to previous two videos. • The dynamic range, in other words, the ability to capture both bright and dark, is quite severely limited, but, again, to give the Court a realistic view of the quality of the technology that was available at the time.373 369 T213.26-28. 370 T213.29-38. 371 T216.1-5. 372 T216.9-23. 373 T216.24-217.4. -- 44 of 96 -- [2024] SADC 106 43 Dr Sorell’s conclusion 258 The webcam was technology that existed at the time and the complainant’s report is consistent with Dr Sorell’s recollection.374 259 Dr Sorell said that the computers that were available at the time that used a Windows operating system could capture and code video at data rates that were appropriate for both dial-up and low speed broadband. In general, streaming of video was emerging as a technology and as a service.375 260 It was technically possible to stream video, albeit at low quality, from a home camera and home computer. Messaging using keyboard text communication contemporaneously with the streaming camera was particularly consistent with content Dr Sorell had examined whilst working at the Office of Film and Literature Classification.376 261 Ultimately, Dr Sorell remarked that the descriptions in [JR]’s statement were very much consistent with his understanding of technology at the time. This understanding was reinforced through reviewing contemporaneous documentation from that period.377 262 The one inconsistency he noted was [JR]’s claim that 200 people were watching the streaming. Dr Sorell did not believe that this was something she would have certain independent knowledge of – but is rather something she would have been told by someone else.378 He said that this was not to say that the technology was not possible.379 Cross-examination The software 263 Dr Sorell agreed that live streaming, whilst not in high quality, would be possible over dial-up internet.380 He said the highest quality at the time would be similar to File 1 as viewed in the demonstrations.381 He said that this type of streaming would have been possible using a desktop computer from 2001 using XP.382 264 By March 2003 two-way video communication existed. According to Dr Sorell this technology would not require a great deal of technical understanding 374 T223.2-6. 375 T223.4-12. 376 T223.15-26. 377 T223.30-35. 378 T224.4-15. 379 T224.17-37. 380 T226.3-9. 381 T227.10-12. 382 T227.23-29. -- 45 of 96 -- [2024] SADC 106 44 to operate, but anyone reasonably technically minded should have been able to set it up.383 265 Dr Sorell considered the complainant’s belief that MSN messenger was the software used each time for recording and/or streaming sexual activity. He said that it was not possible for MSN messenger itself to deliver video. However, he went on to say that: It is distinctly possible that MSN Messenger could be used for two-way text/chat communication whilst simultaneously a video was streaming using a different piece of software using the same computer ... the two of them being able to operate side by side is entirely feasible.384 266 Similarly, Dr Sorell explained that the hardware needed to run these programs side-by-side was trivial.385 The webcam 267 According to Dr Sorell, the webcam would be priced around $200 or $300 in 2003.386 Questions as to internet and connectivity 268 Dr Sorell agreed that there were around 169,000 internet up-taking broadband services users according to the Telstra annual report as of June 2002.387 Dr Sorell said that this represented 14% of Telstra’s online subscribers and Telstra was the dominant service provider at the time.388 He explained that if you walked into a random house that had internet at the time, roughly one in 20 would have broadband in 2002, and then roughly one in 10 in 2003.389 269 Dr Sorell stated that in general, connectivity and internet uptake would be poorer in areas like Murray Bridge when compared to connectivity in urban areas like Adelaide. 390 He said that essentially a dial-up connection would either work or not work in a binary sense, as opposed to being better or worse quality.391 270 In terms of the cost, Dr Sorell was not able to recall exact figures but estimated that broadband was no more than double the cost of a dial-up connection.392 383 T228.9-14. 384 T234.11-26. 385 T234.27-31. 386 T239.4-16. 387 T230.1-16. 388 T230.18-27. 389 T230.27-35. 390 T232.2-26. 391 T232.27-37. 392 T234.37-235.1. -- 46 of 96 -- [2024] SADC 106 45 Demonstrations 271 Dr Sorell reiterated that whilst the videos used in the demonstrations were recorded on a 2009 laptop, he believed it to be a realistic test in this context as the laptop in question’s operating power was the equivalent to around a 2004 computer. Notwithstanding the fact that a perfect recreation was not possible as [JR] did not specify the exact technology used, only that she believed it to be MSN messenger. The complainant’s statement 272 Dr Sorell confirmed that he utilised the complainant’s statement specifically at paragraph 23.393 Dr Sorell said his understanding of his role in the trial was to consider whether the technology mentioned in the statement existed at the time and if it was capable of delivery as referenced.394 Re-examination The software 273 With reference to his lectures from 2002, Dr Sorell stated that ICU2 software (the two-way video streaming software that was the more advanced option than a one-way version) would be capable of streaming video one-way, if one end did not have a camera.395 [AD] Examination-in-chief 274 [AD] is 36 years old and grew up near the complainant’s home-town. In 2002, she began year 10 and moved to Murray Bridge to attend Unity College and boarded in a residence there, travelling back to Parrakie on weekends. Relationship with [JR] 275 [AD] knew [JR] prior to boarding at Murray Bridge, as they had both attended the same school. For [AD], this was year 8 and year 9.396 During this time, [AD] described her relationship with [JR] as friendly. [AD] and [JR] boarded at the same residence in Murray Bridge, although she believed that [JR] moved out sometime during year 11.397 276 During this time, they shared a bedroom.398 [AD] described the room as average sized and that it contained a single bed each. The two single beds were 393 T239.24-25. 394 T239.24-38. 395 T240.17-241.14. 396 T245.1-7. 397 T247.36-248.3. 398 T245.8-14. -- 47 of 96 -- [2024] SADC 106 46 perpendicular to one another and whilst standing on the bed, one could take a big step from one bed to the other.399 277 She described their relationship as friendly, albeit she said it was sometimes difficult sharing a room with [JR] due to the shared space and lack of privacy.400 Phone habits of [JR] 278 [AD] recalled [JR] to often be on the phone late at night (around 9:30 pm to 11:00 pm), which would disturb her sleep.401 [AD] estimated these disturbances would typically last a ‘good half an hour or more’ and would typically occur two to three times a week.402 During these phone calls, [AD] was not able to make out specifics of the conversation but remembered overhearing giggling. 403 279 This witness was not cross-examined. [JG] Examination-in-chief 280 [JG] has been a teacher since 1996 and currently teaches at OneSchool Global, Aberfoyle Park. She worked at Unity College in Murray Bridge from 2000 to 2006. During this time, she lived at Murray Bridge with her husband and child. Relationship with [JR] 281 [JG] knew [JR] as a student at Unity College and had contact with her homestay family who she identified as [N] and [B], when they attended church on Sundays.404 282 In late 2000/early 2001,405 [JG] took over the homestay arrangement and [JR] moved into her house.406 [JG] believed that [JR] stayed with them for only a few months.407 During this time, [JG] observed [JR] and believed her to be struggling with her family life and home life arrangements. Due to this, she made a mandatory report in her capacity as a teacher.408 283 [JG] remembered [JR] having issues at school.409 There were several occasions where she was not aware of [JR]’s whereabouts, and that [JR] would return to her house with alcohol; she found [JR] difficult to manage.410 These times 399 T245.15-246.11. 400 T246.12-19. 401 T246.20-31. 402 T246.35 247.22. 403 T247.3-11. 404 T249.25-31. 405 T251.1-4. 406 T249.37-250.12. 407 T251.13-16. 408 T251.17-31. 409 T251.32-252.9. 410 T252.2-9. -- 48 of 96 -- [2024] SADC 106 47 where she was unaware of [JR]’s whereabouts were frequent and caused her significant stress. 284 [JG] recalled [JR] being dropped off at her house by someone but did not meet the driver and did not see what they looked like.411 She described the car as being a mid-sized vehicle but could not recall beyond that.412 She confirmed that [JR] would frequently come and go.413 285 Due to the stress [JR] caused her, [JG] requested that [JR] be reallocated to a different homestay.414 286 She said that due to the mandatory report she had made, she had been liaising with someone from Child Protection and that they found the complainant a place to live.415 Cross-examination The mandatory report 287 [JG] said she made a mandatory report based off alleged neglect and sexual abuse at her family home.416 288 On 12 October 2020, [JG] sent an email to the investigating officer stating that: ‘I also made a mandatory notification at the time about sexual abuse allegations against her father’.417 She clarified that the information she received was probably in regard to abuse suffered by both [JR] as well as [JR]’s mother.418 She said that the first report she made was likely based on information she had heard from the community, due to its small population.419 She said that she reported neglect, physical violence, and sexual allegations.420 Re-examination 289 [JG] explained that if she heard information about a student witnessing abuse against a parent, she would be obligated to make a mandatory report. Although she further clarified that: I believe the information was potentially both people otherwise I wouldn't have made that report unless it was connected to the neglect of the child. So, it's - yeah the line for the reporting, it was different back then. The requirements. The training I have now for 411 T252.10-15. 412 T252.16-19. 413 T252.22-26. 414 T253.30. 415 T254.1-10 416 T254.15-25. 417 T254.36-T255.36. 418 T255.31-36. 419 T256.1-17. 420 T256.30-38. -- 49 of 96 -- [2024] SADC 106 48 reporting, and I may be stating what I know now because I've been retrained on making the reports so the requirements then may have been slightly different but yep.421 290 In further examination, [JG] confirmed that there was a period of time where [JR] would stay with them on the weekends as well as during the week, and that this was by [JR]’s request.422 291 [JG] stated that when [JR] would go missing, it would typically be because she had snuck out of the house. This would typically occur on weekend as [JR] attended school.423 292 [JG] said that the complainant would not disclose who she had been with during these outings beyond a vague statement such as ‘I’ve been with friends’.424 [JG] said she did not know who these people were.425 [JG] noted that when she returned from such occasions she was often ‘inappropriately dressed’.426 [JB] Examination-in-chief 293 [JB] lived in Murray Bridge from 2000 until 2004. She was self-employed performing child-care duties at home. Her child-care consisted of caring for four younger children during the day and in the mornings and afternoons she would look after an additional two primary school aged children.427 294 Her house at the time had a granny flat out the back. 295 [JB] has one daughter. 296 [JB] recalled that during late 2003, early 2004, [JR] came to live at the granny flat.428 [JB] and [JR] had not met prior to her living at the granny flat.429 [JB] was approached by schoolteachers from [JR]’s school regarding [JR] potentially living at the granny flat.430 297 [JB] said that because she was moving away from Murray Bridge, [JR] had to move out of the address.431 421 T257.22-31. 422 T258.23-28. 423 T258.2-4. 424 T258.12-15. 425 Ibid. 426 T258.19. 427 T261.13-262.11. 428 T259.22-27. 429 T259.28-30. 430 T259.31-38. 431 T263.15-21. -- 50 of 96 -- [2024] SADC 106 49 298 After [JR] moved out of the granny flat address, [JB] did not see the complainant again.432 Living arrangements 299 It was [JB]’s evidence that [JR] would pay $100 a week towards any costs incurred whilst living in the granny flat, for example towards utilities.433 [JR] would give the money to [JB], and she would arrange the payment of expenses.434 [JR] would buy her own food and [JB] described her as essentially self-sufficient.435 300 [JB] confirmed there was a telephone at the premises.436 [JB] does not recall any internet connection but believes if there was it would have been from a phone.437 [JR] lived there between six to 12 months. Visitors to the granny flat 301 [JB] recalled [JR] occasionally having school friends over, albeit infrequently.438 [JB] specifically observed two men visiting the granny flat. 302 The first was an older man [JR] referred to as ‘uncle’. [JB] described this first man as in his 60s, tall, grey hair. [JB] only saw this man once.439 303 The second visitor was another man who [JB] described as in his 40s, with olive complexion. 440 [JB] only saw him once. 441 During this one occasion, the man arrived following comments by [JR] that she did not wish for the man to come onto the premises. 304 [JR] recalled that: I stood my ground at the gate, I believe [the complainant] may have made a comment that he was coming, and she didn't want him there I didn't see his car pull up ever. He walked down the driveway and I said that he wasn't allowed in. And he said he could come in whenever he wanted. And I said 'No, you can't'. I had another younger girl inside the house, and I asked her to get the telephone because I said I would call the police and he swore at me and then turned around and walked away … he left once I said I was going to call the police.442 432 T263.22-24. 433 T260.7-12. 434 T260.13-15. 435 T260.10-12. 436 T260.16-17. 437 T260.18-19. 438 T261.31. 439 T260.20-35. 440 T260.36-261.3. 441 Ibid. 442 T261.8-17. -- 51 of 96 -- [2024] SADC 106 50 305 [JR] said that when he swore at her he called her a ‘fucking bitch’.443 She said he eventually left when she told him she was going to call the police.444 Later in her evidence, [JB] said that she was not aware how she came to know that this person was coming to the address and that all she could recall leading up to the interaction was that the complainant was standing at the steps near the front door and informing her of his arrival.445 She said that she stood at the pool gate which was at the front of the house and the man walked down the driveway.446 306 Besides this specific occasion where [JR] saw the 40-year-old man, she said there were occasions where she would hear voices from the granny flat, which she assumed was the same person, although she never saw him come or go as most people would enter the house through the pool gate; she did not hear him walk across the landing to go to the granny flat.447 However she said there was a manner in which someone could close the pool gate without it making a noise, if they were very careful.448 Cross-examination Visitors to the granny flat 307 [JB] confirmed that this was the second male. She said that the complainant never said to her that she did not want the first person coming to the address.449 She said that the complainant never told her that she did not want the first person coming to the address.450 308 She confirmed that she only saw the first person on one occasion.451 Telephone and internet connection 309 [JB] confirmed that there was a landline telephone. If there was internet it would have been dial up.452 She was not certain but believed that there was a phone in the house and there was a phone in the granny flat.453 310 She could not recall ever having any interruptions when making phone calls or using internet in her house.454 443 T261.23-25. 444 T261.27. 445 T263.30-37. 446 T264.6-12. 447 T261.31-262.1. 448 T261.11-12. 449 T264.14-20. 450 T264.18-23. 451 T264.24-25. 452 T264.28-265.2. 453 T265.5-10. 454 T265.15-18. -- 52 of 96 -- [2024] SADC 106 51 Detective Brevet Sergeant Stone Examination-in-chief 311 Detective Brevet Sergeant Stone (‘Stone’) has been a police officer for 19 years, in the CIB for over 10 years, and a detective for about seven. For the past 10 years she had been working in Adelaide at Sturt and Southern service areas. She was assigned to this matter in February 2020 as part of her role in the CIB team. She remained the investigating officer over the course of the matter.455 312 As the investigating officer, Stone took the statement from [JR] on 29 February 2020.456 Investigation of the matter 313 Following the drafting of [JR]’s statement, Stone investigated several individuals and residences in the course of her investigations. [JU] 314 [JU] provided Stone with a statement, which she took over the phone, but after some time he stopped engaging in contact with her. Stone made continued efforts to contact [JU] to no avail.457 [RR] 315 [RR] is [JR]’s mother. She did not want to be involved due to personal reasons.458 Jeffrey Street 316 Through the SAPOL Shield System, Stone found that [JR] resided at the Jeffrey Street address as of 12 March 2004.459 Department of Planning, Transport and Infrastructure 317 Inquiries were made to the Department of Planning, Transport and Infrastructure in relation to a green utility vehicle owned by the accused.460 Stone confirmed that they requested registration details for the time frame that the complainant alleged she knew the accused. She could not recall whether she made further inquiries beyond this relevant time frame.461 455 T266.24-32. 456 T266.2-8. 457 T267.15-34. 458 T267.35-268.3. 459 T268.4-23. 460 Exhibit P10 Registration for green utility. 461 T269.29-38. -- 53 of 96 -- [2024] SADC 106 52 Accused address history 318 Stone also received an address history for the accused from the Department of Planning, Transport, and Infrastructure. 462 319 Relevant to the investigation were three addresses stated on the address history: a Hope Forest address with reference to Meadows Road, Adelaide, and Bellevue Heights. Hope Forest address 320 Stone did not attend this address. She could not find it, but the record showed that the accused lived there.463 Adelaide Address 321 As per Stone’s statement, the Adelaide address is relevant because: So the victim, [JR], she told me that she had located a blanket in a photograph on the internet which had been on the accused's bed when she had something to do with him and in this photograph at [Adelaide] there was this blanket on the bed and [Adelaide] was apparently the business address of [the accused].464 Bellevue Heights address 322 This address was approximately a couple of kilometres from Blackwood High School. 323 Stone attended this address on 8 August 2020. She attended with other police officers namely, Detective Brevet Sergeant Gledhill, Detective Brevet Sergeant Christley and Detective Brevet Sergeant Jacobs. On this date, Stone and the other Detectives arrested the accused.465 324 The Court was played the record of interview of the accused from this date.466 During this interview, the Ridgehaven drive address was the subject of a search. Consequently, electronic devices were seized from this address.467 There was nothing of significance to the complainant that was extracted as a result of this aspect of the investigation.468 Police reports in relation to [JR] 325 Stone confirmed she used the police SHIELD system to search for police reports with respect to the complainant.469 On one report the suspect noted was 462 Exhibit P11 Address history of accused. 463 T270.18-30. 464 T270.33-38. 465 T271.31-33. 466 Exhibit P13 Record of Interview of Accused (Transcript is MFI P13A). 467 T274.2-10. 468 T274.11-13. 469 T274.14-17. -- 54 of 96 -- [2024] SADC 106 53 [MR] (the complainant’s father).470 The matters noted on this report were in relation to allegations of domestic violence.471 Cross-examination 326 Stone agreed that [JR] had sent her maps on her own accord to identify the precise location of the granny flat address.472 She said that this was how [JR] was able to determine what the correct address was.473 327 Stone conceded that [JR] did not identify the location of the mother’s house of the accused, nor the Meadows property nor any of the hotels she alleged to stay at.474 328 The investigation revealed that there were no longer any records of the hotels that the accused allegedly stayed at.475 329 She agreed that no one drew a floor plan of the accused’s mothers house during the arrest.476 [TM] 330 It was agreed that the affidavit of [TM]477 would have been the evidence that she would have provided had she attended and given evidence in Court.478 Defence witness Ms Noordin Examination-in-chief 331 Ms Noordin is a specialist expert in digital forensic operating systems. She has a master’s qualification in networking and systems administration. This is essentially the study of how-to better design computer systems to communicate with one another efficiently, although it also includes understanding the basic operations of a computer. She is trained in computer software, specifically how to manage an enterprise of computers. 332 Ms Noordin holds the position of Principal at Digital Trace Australia479 where her role involves leading the provision of specialist services to matters where there are issues involving electronically based evidence. These services include 470 T274.22-27. 471 T275.2-4. 472 T275.16-28. 473 T275.29-32. 474 T275.33-38. 475 T276.2-9. 476 T276.12-21. 477 Exhibit P14 Affidavit of [TM] sworn 18 May 2020. 478 T277.6-11. 479 T284.23-27. -- 55 of 96 -- [2024] SADC 106 54 provision of digital forensic expertise to collect, process and analyse electronically stored data. She has been in this role since July 2019.480 333 Ms Noordin worked at the Electronic Crime Section of South Australian Police for 10 years, starting in 2009.481 Throughout this time, she had a number of roles. Two separate roles included the actual analysis of forensic material or electronic material and the other was administering the network, or intranet and ensuring that each modem was working throughout South Australia.482 334 As part of her employment there, she delivered and ran the distribute review systems for SAPOL, which is the system that allowed officers to review electronic data. Essentially a computer system in which various data from police investigations is uploaded and then police officers are able to at some later stage access that material. Many computers can access this system.483 Assessment of state of technology in 2001-2004 335 Ms Noordin was asked to provide an opinion as to whether or not certain video capabilities were available over the internet in 2002. She explained that accessing a website was an example of downloading material from the internet and sending an email is an example of uploading material. Internet connection 336 Ms Noordin outlined that during 2001-2004 connecting to the internet was achieved either by broadband or dial-up.484 Both methods utilised a copper line, although broadband technology permitted users to use both their phone and the internet at the same time. Dial-up was used by the majority of Australians between June 2001 and September 2003. Dial up required a physical phone line to be connected and performing a dial-up (i.e. pressing a button to connect to the internet). Once dial-up internet was being used it was not possible for a telephone call to be made on the same line. 337 Broadband was roughly five times faster than the dial-up speed for download capabilities. As well as this, in general, upload speeds were significantly slower than download speeds and had a fraction of the capability.485 338 She explained that if the download speed was higher than the upload speeds, the user would experience stilted video streaming, a buffering effect. 339 Ms Noordin stated two factors that can affect the performance of computers sharing information. The first is the physical components; for example, the quality 480 T284.36-37. 481 T287.32-288.11. 482 T289.27-290.9. 483 T290.36. 484 T297.3. 485 T297.3-298.26. -- 56 of 96 -- [2024] SADC 106 55 of the broadband connection; the distance from the connection; or the type of modem being used.486 340 Ms Noordin explained that it would have been necessary to use a program that was capable of sending information, for example, an email program to send an email as well as to send a video.487 She agreed that an email is much smaller in size to send compared to a video over the internet. She qualified this and explained that this is dependent on the quality of the video and the size of it.488 Computer hardware 341 Exhibit D19 Single-Page Computer Advertisement from June 2002 and Exhibit D20 Two-Page Computer Advertisement December 2003 provide examples of the costs of computer hardware at the time. 342 Generally, prices at the time ranged from $999 to $5,999 in the dollar value of 2002-2003.489 343 Whilst Ms Noordin was aware of webcams being available at the relevant time period, she said the video resolution was very low. She stated that to be able to see images from the webcam in any detail one would need to be very close to it. Video streaming 344 Ms Noordin gave evidence that the only available video streaming software she was aware of at the time was Yahoo! Messenger which had a video-streaming function of one frame per second, which essentially produces a static image. 345 Messenger, MSN Messengers, ICG AOL Instant Messenger did not have video-streaming functions. According to Ms Noordin, it was not until 2005 that video capabilities like Skype arose.490 Analysis of Dr Sorell’s demonstration 346 Regarding Dr Sorell’s demonstration, Ms Noordin said that overall, it was evidence that video recording was possible in 2002-2004 from a home computer, but that transmission was not highlighted by this demonstration.491 She emphasised the difference between simply recording video and having video playback versus transmitting videos on the internet. 347 In Ms Noordin’s view, Dr Sorell’s demonstration is not comparable to the scenario before the Court because whilst it shows the video recording capabilities, 486 T294.4-12. 487 T294.25-33. 488 T295.11-14. 489 Outlined in Exhibits D19 and D20 tendered by Mr Marcus. 490 T308.36-309.27. 491 T314.32-36. -- 57 of 96 -- [2024] SADC 106 56 it does not demonstrate a real replication of the technology as the software and internet connection were not being tested as well. 348 Ms Noordin agreed that a 36 kilobyte per second data rate quality video was within the data sending capacity of dial-up internet. 349 However, Ms Noordin took issue with the fact the demonstration was performed on a 2009 computer. This is because the processing and playback power had far greater video capability. Additionally, Ms Noordin stated that the image was displayed on a larger screen than the types of screens that would have existed in 2002-2004. Furthermore, it was Ms Noordin’s opinion that if someone was using a video messaging chat messaging software with video capability, they would have the video frame along with other frames and borders to show the chat window, the users present and that would reduce the effective size again in terms of what is able to be seen on the entire screen. 350 Overall, Ms Noordin found multiple variables which highlighted that the demonstration was not apposite to the situation before the Court as outlined in [JR]’s statement, and that essentially it was not comparing ‘apples with apples’. Conclusion 351 In forming her conclusion, Ms Noordin was provided with a variety of materials outlined in Exhibit D18.492 Ms Noordin confirmed that she was provided with a transcript of Dr Sorell’s evidence. Dr Sorell’s evidence did not change her conclusion.493 She also reviewed materials from the Australian Bureau of Statistics as to the uptake of broadband technology in the years 2001, 2002, and 2003. 352 Ms Noordin opined that while technology capable of supporting video streaming as described in the allegations became available to domestic customers in 2002, she found it highly unlikely that such a scenario could have played out in the years 2002-2003.494 Ms Noordin found that it was highly unlikely to exist in a typical domestic setting between 2002-2004 due to needing a combination of adequate internet capability, acquiring the right software, the hardware and having the appropriate processing power of a computer. 353 Ms Noordin also spoke from personal experience. She outlined that she had personally attempted to use webcams from an inner-city suburb that was only around 300 metres away from the exchange point to chat with her children overseas in the relevant time period and it was difficult to have video streaming communication. In terms of software, Ms Noordin did not believe video-streaming software available at the time was capable of performing what was described by [JR] in her statement(s). 492 T292.3-7. 493 T292.11-33. 494 T291.14-21. -- 58 of 96 -- [2024] SADC 106 57 354 Beyond the ABS data outlining the uptake of broadband during the relevant period, Ms Noordin justified her conclusion that it would be unlikely for the average domestic to have the appropriate software, hardware and processing power. 355 Ms Noordin agreed that webcams were available, and they could capture video at different rates depending on the capacity of the particular type of webcam. However, she said that the technology at the time was only capable of capturing very low resolution. The monitors common to the time were only around 15 inches. Ms Noordin queried how much detail an individual would be able to observe when watching a grainy video on the same monitor where another window was open for messaging purposes. In any event, she said that if the window containing the text or chat could be closed and obscured from view and the whole screen was available to see what was being streamed, her opinion remained the same. 356 Ms Noordin believed that whilst home recording on a home computer was possible, it was not transmitted across a connection commonly. Instead during that period of time, torrenting was the popular way to access media because you did not have to deal with the frustration of streaming, which according to Ms Noordin was very difficult and slow. 357 Therefore, specific factors such as the low resolution from the webcams available, software available at the time, internet speed available in suburban Adelaide households at the time, and that meant that video streaming and transmitting was highly unlikely. Cross-examination Dr Sorell’s demonstration 358 Ms Noordin gave evidence on the assumption that Windows XP was pre-installed on Dr Sorell’s computer. By way of background, Ms Noordin stated that it would not be possible to install Windows XP from 2001 were she to attempt to install it on a laptop today. This is because Windows XP does not come with the drivers required for the new hardware; it cannot support it.495 She had personal experience of attempting to install an operating system on technology that was not compatible and found that many of the functions did not operate once it was installed, e.g. the touch pad and speakers.496 359 She made the assumption that Dr Sorell’s computer was a 2009 manufactured computer because of the year of the manufacture of the notebook. She said this meant that it would have inbuilt drivers capable of interacting the Windows XP software. 495 T325.7-27. 496 T326.3-15. -- 59 of 96 -- [2024] SADC 106 58 360 Regarding the 2009 Netbook used in the demonstration, Ms Noordin stated that she thought it would have ‘had Wi-Fi built into it at least.’497 However this would not have been the case for a 2001 Netbook with Windows XP software. Ms Noordin stated that there would be improvement in terms of video quality and recording from 2001 to 2009.498 Ms Noordin agreed that one would expect that processor would be capable of producing a better-quality video than the one demonstrated, providing that the accompanying hardware (i.e., the webcam and computer hardware) was also improved.499 361 She agreed that the clips played in Court were of increasingly better quality. The first clip of the three clips played was demonstrative of the quality of video available on a dial-up connection. She elaborated that this was based on a connection of 38 kilobytes per second, which was what she believed was the best quality available from a dial-up connection. Whilst this was indicative of the video quality possible to be streamed, Ms Noordin explained that because the quality was also dependant on the connection from the receiving end, she could not comment on the quality from that end. 362 She could not recall whether anyone used Windows Movie Maker in 2001 because it was not reliable. However, from 2002 onwards the technology became more available to the everyday consumer. Assessment of Dr Sorell’s demonstration 363 Ms Noordin was referred to the following statement made by Dr Sorell in his evidence: Q Being a 2009 device [talking about the laptop] can you say would that have affected the reliability of the test that you were conducting. A Yes, I will note that it would have been better if I had been able to find an earlier piece of hardware to do this test on. That was the best I could do and the key purpose of this was, in fact, to provide a demonstration of the video quality that would have been achievable and realistically achievable in 2001.500 364 She accepted that this was a realistic demonstration, and that Dr Sorell acknowledged the limitations of relying on the 2009 hardware for the demonstration. 365 In relation to the first clip, she agreed it was consistent with her expectations regarding video quality without streaming and she did not expect to see anything significantly different. However, she said that she was not aware of the parameters Dr Sorell used to define ‘significantly different’.501 She said she was unable to comment in relation to the higher quality videos used in the demonstration because 497 T322.32-35. 498 T326.27-38. 499 T327.1-15. 500 Excerpt from T211-212. 501 T333.6-334.4. -- 60 of 96 -- [2024] SADC 106 59 she did not have experience in recording video from that time of that particular quality.502 Personal use of relevant technology 366 In cross-examination, Ms Noordin was asked again about her personal use of Skype to call her children in 2005. She explained that she would use Skype to record a video and then send that recording on afterwards; this was done at the lower data rate. She also attempted to do two-way video calling. 367 Her children were based overseas when she used this technology. She said that because there was only a certain quality of service available on ADSL 1, it was a frustrating experience. She explained that proximity to exchanges affected the quality and speed of connection, i.e., the closer someone was to a cell tower, the better quality the streaming was.503 368 She said that audio was also involved. She said this was dependent on whether a built-in microphone is involved, and that upload speed could be affected when there is audio as well as video. This is because there are separate recording types at play. She used the example of turning off her video so only sound would be used in order to improve the streaming quality. 369 She said that she did not have experience with using this technology on a dial-up connection (as opposed to with ADSL1) because she did not personally use it at the time and clarified that: Web camera functions in any messaging software on dial-up was because it was already difficult with just instant messaging, there was a lag already just with text, I didn't think that it was worthwhile investing in expensive - the kit to just be even more frustrated.504 The witness’s professional experience 370 Ms Noordin agreed that since 2009 for a period of about 10 years she was employed by SAPOL in the Digital Evidence Section. For the first section of this period, she was a digital evidence support officer and was involved in the extraction of data from various devices that are submitted to the Digital Evidence Section for analysis. To do so she used several different pieces of software including ‘Cellabrite’; ‘EnCase’; and ‘Axiom’. 371 She agreed that her primary experience at SAPOL was in relation to the extraction of data from several different devices. 372 In 2013 she was the manager of Distributed Review and was involved in the administration of the intranet use; the shared platform for officers to access digital evidence. 502 T334.10-16. 503 T338.1-15. 504 T339.31-38. -- 61 of 96 -- [2024] SADC 106 60 Report drafted for the purposes of trial 373 Ms Noordin was directed to Exhibit P4. She agreed that her opinion was based on the charge including allegations relating to the capture and live video streaming of sexual acts in the years 2001-2003. She said that her opinion was also based on the fact that the complainant alleged that people appeared on the computer screen who were allegedly viewing the sexual activity and interacting with the accused and the complainant including sending written messages via the software discussing the sexual activity. 374 She gave evidence that if she was to assume the hypothetical that the allegation was only that one-way video streaming occurred as opposed to two-way video streaming, her opinion would nonetheless remain the same. She said she still believed it highly unlikely that the scenario would have played out. She said that whilst it was not impossible because the technology did exist, it was highly unlikely because it was not readily available to the average household. This was across the 2001-2003 period. 375 The witness was asked to reflect on that passage from Dr Sorell's evidence which was in relation to the capacity for internet service providers to offer dial-up access technology to residential subscribers. She said that she looked at the ABS data that highlighted residential connections, specifically the lesser amount of residential dial-up connections, and that her interpretation of the data was such that it was only in 2003 that residential subscribers were able to really access ADSL or broadband internet.505 She said that this opinion was based not only on the ABS statistics showing that providers only offered dial-up at that time but also upon reviewing magazines that showed that costs would be very high and aligned more with commercial connection than a domestic one. This was also due to the hardware needed to connect as computers did not come with a network port. 376 However, she said that it was possible to have a business connection to a domestic setting.506 377 She said she wished to qualify the following statement in her report: 'similarly, until the later part of 2003 consumer computer systems only had capabilities to access the internet by dial-up access technology’ by saying that it’s highly unlikely that consumer computer systems had capability to access ADSL. 378 She confirmed that between 2001 and 2002 only one-to-one calls, rather than group video conferencing communication, was available. 379 She agreed that whilst internet capability was important factor she considered when drafting her report, she placed more emphasis on the type of software and the type of hardware that was being used.507 505 T346.2-34. 506 T348.9-13. 507 T359.31-360.13. -- 62 of 96 -- [2024] SADC 106 61 Technology available at the time Software generally 380 In 2001 Yahoo! Messenger 5.0 was available at the time as well as (within Windows XP package) Windows Messenger. 381 The Yahoo! Messenger 5.0 video capability was available from late 2001 however video capability of Windows Messenger was only available in March 2003. 382 Yahoo! Messenger 5.0 only allowed for one frame per second for streaming, therefore Ms Noordin was unsure whether this truly amounted to ‘streaming’ per second.508 383 In terms of Yahoo! Messenger 5.5, which involved streaming of 20 frames per second, Ms Noordin agreed that it could facilitate a video stream albeit with stuttering of the picture due to it being under the standard of 30 frames per second.509 384 Ms Noordin was presented with the following hypothetical: if someone, in August of 2002, had a computer with the adequate processing power to stream Yahoo! Messenger 5.5. at 20 frames per second, along with an ideal connection – would they be capable of performing video streaming? Ms Noordin said that they would be.510 385 She said that a frame rate of 20 frames per second would produce a video that looked like slow motion: a less natural video capture. She said that the published frame speeds for software like Yahoo! Messenger 5.5. was the software performing at its optimum speed, but it was Ms Noordin’s opinion that it was highly unlikely that it would operate at this speed consistently.511 386 She agreed that she made a mistake in her report by writing that Windows Messenger launched its Windows XP operating system in 2001 when in fact it was not launched until March 2003.512 387 It was her opinion that MSN Messenger 5.0 was the first of that iteration to have video call capabilities. 388 She was asked if the scenario involved only streaming towards one person if it would change her opinion. In this circumstance she would downgrade her conclusion from being a highly unlikely possibility of occurring to merely an unlikely scenario. She justified this by explaining that it was because it was more reasonable to expect a successful transmission when considering the factors she 508 T362.1-9. 509 T362.4-26. 510 T362.4-9. 511 T363.1-21. 512 T365.1-12. -- 63 of 96 -- [2024] SADC 106 62 included in her report.513 She said that if this was increased to streaming to 10 people, she would assess the probability as highly unlikely.514 She said that it was possible for the video to be recorded and then uploaded to a platform like YouTube or a pornographic website, however it would not be instant. She said this scenario was more likely than the streaming scenarios previously put to her.515 389 Ms Noordin gave evidence that it was possible for MSN Messenger to run as a text-based program with another recording software performing in the background recording locally to the computer’s hard drive.516 Hardware generally 390 She agreed that the round ‘eyeball’ style webcams were widely available from 2001 onwards. She could not recall if there was a microphone included in these webcams. She agreed that this type of webcam, if it did not include imbedded audio technology, would involve a lower bandwidth when streaming from that kind of equipment. She agreed that recording and streaming was possible from these models. Exhibit P21 391 In reference to Exhibit P21, Ms Noordin agreed that Yahoo Messenger 5.0 was being touted as something better than MSN Messenger due to it having built-in video capability. 392 She clarified that ‘videochat’ is not what we understand it to be today. Prior to March 2003, Windows XP had no inbuilt videochat capability. 393 She was referred to the second paragraph of the article: Video for everyone in Windows. Fortunately for Yahoo, there are plenty of other reasons to pick this client. Messenger lets you invite up to nine buddies to a roundtable chat, transmit and receive files, and set up peer-to-peer file sharing with friends. You can send messages to offline buddies (who get them the next time they log on) and invite others to Yahoo chat rooms from within Messenger. 394 Ms Noordin did not interpret ‘roundtable chat’ in this context to mean nine people talking online simultaneously with each other, transmitting, and receiving live images and audio. She instead took this to mean nine people text messaging. 395 She was not aware as at the time the article was authored (18 February 2002) that there was a domestic capacity to have live video conferencing between multiple people.517 This software enabled users to use peer-to-peer file sharing 513 T384.18-30. 514 T387.23-26. 515 T388.23-38. 516 T389.1-10. 517 T371.22-29. -- 64 of 96 -- [2024] SADC 106 63 software which enabled a more efficient way to access files. She explained this to operate as follows: This file is available to access because … four people, or A, B, C, D, have them. And yeah, so within that interface, if I don't have that, and I want to access it, then the files that are available from the ones that have shared it would then be sent through. So the idea there - if you are only downloading from one source, that's not peer-to-peer because you are using many peers, yep. If one source, what are the things that might happen? The connection might break, and then you lose it, because it's only one source, for example. So peer-to- peer, when it's available from multiple sources at the same time, and it's just which one's available, and it can facilitate a more efficient way of downloading or accessing that file.518 396 Furthermore, Ms Noordin said that Yahoo! Messenger was capable of providing real time voice and video chats. This was something that was simple for the typical domestic user to access. 397 She went on to say that it was highly unlikely that the aforementioned roundtable chat could involve video chat and audio chat capabilities. She referred to the article and said that even with a more desirable ISDN connection, the resulting video was jerky, with out of sync audio and video. Re-examination Software 398 Ms Noordin gave evidence that when recording and transmitting videos with audio, they do not occupy the same amount of bandwidth of the internet. This is because they are different type of files. She said she would generally expect video files to be larger in size than audio files. Hence, she believed an audio file would be sent noticeably faster than a video file. Connection 399 Ms Noordin gave evidence that she recalled how often dial-up connections would drop out. She said she was not sure whether streaming video could occur on a dial-up connection for even one minute without interruption.519 She reiterated that the upload and download speeds are different and that the ability to stream a video is effectively limited by whichever is the slower of the two; the quality of your stream is subject to the upload speeds of your internet connection.520 Exhibit P21 400 In re-examination, Ms Noordin was asked about the article from SDENT about Yahoo messenger 5.0. She understood the publication to be a US-based one that was aimed at the American market. She did not associate ISDN connection use with the Australian market. 518 T372.15-30. 519 T394.22-27. 520 T394.1-11. -- 65 of 96 -- [2024] SADC 106 64 Limitations to the ability to stream when using a web camera 401 The following scenario was put to Ms Noordin: … if the video is recorded by an individual and uploaded to the internet to a particular site and is downloaded by someone else not using a torrent platform, it is just simply uploaded and then downloaded, using 2002-2004 dial-up technology, what sort of time frame would you expect; are we talking about something that could be done in a matter of seconds, would it take minutes or could it take longer.521 402 She gave evidence that she believed it would take longer than 5 minutes and that she would be surprised to see it successful in one go. She said that in order to upload a video on a dial-up it would take some minutes to occur and as part of that people were likely to lose their connection; there would be a delay between minutes from when the recording is instigated and the time that it is available for someone else to view. There will not be instant communication due to this lag.522 Record of interview of accused Preliminary matters 403 The accused participated in a recorded interview with police following his arrest on 8 August 2020. The interview was conducted by Detective Brevet Sergeant Stone and corroborating officer Detective Brevet Sergeant Gledhill at the accused’s address in Bellevue Heights. 404 The accused confirmed that this address was owned by his mother, who was 93 at the time of the interview and was residing in a nursing home.523 405 Police informed the accused that the conversation was being recorded and explained that they would be conducting a search of the premises using a general search warrant held by Detective Brevet Sergeant Christley.524 406 Police arrested the accused for unlawful sexual intercourse with [JR], explaining that his offending allegedly occurred on several occasions between 2000 to 2004.525 Police provided the accused his arrests rights, which he indicated he understood.526 Background 407 The accused stated that he knew [JR] years ago, and that he met her online.527 He stated that he didn’t see her very often back then and that the last time he saw her was about ‘20 odd years’ ago, elaborating that it was a ‘long long time ago’. 521 T404.18-26. 522 T405.11-32. 523 MFI P13A pp 18-19. 524 Ibid pp 2-3. 525 Ibid p 4 [159]-[167]. 526 Ibid pp 4-6. 527 Ibid p 6 [266]-[270]. -- 66 of 96 -- [2024] SADC 106 65 408 He stated that he probably lived in Hope Forest at that time, whilst [JR] lived in her home-town or Murray Bridge.528 He confirmed what his phone number had always been and that he had the same number back then as well.529 409 He recalled owning either a Patrol or XD Ford at the time. He admitted that he previously owned a 97 green utility but could not recall when.530 410 He agreed that at some stage he drove a Taxi for a company called Yellow.531 411 When asked about whether he spent much time around the sports oval or the Bahn Hill camp site, he stated that he had ‘no idea where the Bahn Hill camp site was without looking at a map’ and that he had only been to the town where the complainant lived with her parents a couple of times.532 Relationship with [JR] 412 The accused explained that he had met [JR] a few times and had known her for a couple of years. He stated that they were just friends and that he helped her out at some stage. He knew she resided in Murray Bridge before moving to Mount Barker. 413 He stated that he had no idea how old she was at the time, but agreed he would have been about 38 to 41 years of age.533 414 He explained that the friendship between them consisted of [JR] venting to him about her troubles, as she was experiencing trouble with her father and her uncle. Denials 415 He denied the friendship ever becoming anything more.534 He denied having a sexual relationship with her. He denied ever having sex with her. He denied filming such acts on a web cam. He denied live streaming these acts onto various sites upon which other couples could view it live. He denied ever staying in a hotel in the city with her but admitted to staying at hotels in the city without her. He denied having sex with her numerous times in various locations including Adelaide, Murray Bridge and her home-town. He admitted to seeing her in her home-town and Murray Bridge but denied having sex with her there.535 528 Ibid pp 6-7 [238]-[287]. 529 Ibid p 4 [148] & p 7 [289]-[296]. 530 Ibid p 7 [300]-[312]. 531 Ibid p 7 [314]-[320]. 532 Ibid p 7 [322]-[330]. 533 Ibid p 8 [340]-[358]. 534 Ibid p 8 [366]-[368]. 535 Ibid p 8 [370] – p 9 [411]. -- 67 of 96 -- [2024] SADC 106 66 Jeffrey Street property 416 When asked whether he had rented a property in Jeffrey Street, Murray Bridge, he stated that he was a guarantor for [JR] because she needed to get away from where she was. He explained that he was being stupidly helpful, but ceased being a guarantor as she did not pay the bills. He was unsure whether he actually rented or not, but he did admit to helping her get out of the situation she was in. 417 He confirmed that his name was probably on the lease but could not recall whether this was done through Mason’s real-estate in Murray Bridge. 536 418 He did not recall being the guarantor on the Jeffrey Street property because [JR] was not old enough, but instead recalled being the guarantor because she did not have any income or credit history.537 419 He explained that he helped her out by assisting her rent the house in Murray Bridge. He stated that he thought someone else had moved in, who she began a relationship with and had a child with, which is when his involvement ceased. He told her that she did not need his help anymore, and that was the last time he saw her, but could not recall what year that was.538 420 He stated he did not know why he helped her, but that it was a sob story and no big deal, as he did not pay the rent and was just the guarantor. He stated he did not give her money or pay for anything, he simply just put his name down so she could get an apartment. He explained that by ‘sob story’ he meant that she was having lots of problems with her father, as she said she told the accused that her father was abusive. He stated that she had troubles with her uncle as well, and for whatever reason he just helped her out. He could not recall what he was thinking back then but stated that there was nothing untoward about it. 539 Meeting [JR] 421 He did not recall knowing [TM].540 He did not recall answering the phone after it had diverted from [TM] to him, instead he stated he met [JR] online.541 He then stated that he could not recall exactly how they met, and that he assumed it was online but could not remember exactly.542 422 He agreed that he lived at Hope Forest around this time, and explained he visited the complainant’s home-town and Murray Bridge area because [JR] had asked to see him.543 536 Ibid p 9 [413]-[429]. 537 Ibid p 16 [762]– [767]. 538 Ibid p 11 [501]-[511]. 539 Ibid p 11 [521]-[534] & p 12 [541]. 540 Ibid p 9 [433]. 541 Ibid p 6 [270]. 542 Ibid p 10 [435]-[457]. 543 Ibid p 10 [464]-[471]. -- 68 of 96 -- [2024] SADC 106 67 423 He agreed that he lived in the Flagstaff Hill area but could not recall when.544 General allegations 424 He stated that he had no idea of any reason why [JR] would report this. He stated that he had helped her out but had not seen or her heard from her for donkey’s years.545 425 He could not recall going to the movies or going to Granite Island with her.546 He stated that he had no idea how old she was.547 426 He stated that he would see her once a month, or whenever she called up. He stated that it was not that often.548 427 He stated that he may have sent her a birthday card, but could not say yes or no, and could not remember when her birthday was.549 428 He could not recall [JR] ever attending the Hope Forest or Flagstaff Hill addresses.550 He explained that he saw her a couple of times in her home-town, and he saw her once in Mount Barker. He stated that she showed him the main street of her home-town, but he did not go to her house.551 He explained that he never went to her house because [JR] had told him that her father was violent and strange. Complainants age 429 The accused stated he never really knew how old [JR] was but conceded that he knew she was young.552 He never thought about whether she was over the age of 18.553 430 He denied ever talking to her about school and stated that they only talked about her family and the issues with her father.554 431 He did not believe or suspect that she was under the age of 18 because of the way she spoke and acted.555 First time they met. 432 He explained that the first time he met her was in the main street of her home- town, which is where he saw her a couple of times.556 He stated that the first time 544 Ibid p 10 [473]-[476]. 545 Ibid p 10 [478]-[483] & p 11 [498]-[499]. 546 Ibid p 11 [485]-[492]. 547 Ibid p 11 [515]. 548 Ibid p 12 [550]-[552]. 549 Ibid p 12 [554]-[562]. 550 Ibid p 12 [564]-[567]. 551 Ibid p 12 [572]-[583] & p 13 [589]. 552 Ibid p 13 [610]-[614]. 553 Ibid p 13 [616]-[618]. 554 Ibid p 14 [634]-[638]. 555 Ibid p 14 [640]-[644]. 556 Ibid p 13 [591]-[608]. -- 69 of 96 -- [2024] SADC 106 68 they met was about 6-7pm and from what he recalls he never saw her in a school uniform, as she was always just wearing jeans.557 Specific incidents 1. Police informed the accused of a specific incident where the accused had sex with [JR] whilst she was in her school uniform. The accused stated he was ‘pretty sure’ it was not him, as he never saw her in her uniform and did not know what school she went to.558 2. Police informed the accused of a second specific incident where he allegedly picked up [JR] in his vehicle, whilst she was in her school uniform, and they attended an adult sex shop in Murray Bridge. She was embarrassed because her school uniform and the emblem of the school she attended was obvious. The accused responded to this allegation by stating that [JR] was likely confusing him with someone else, because he did not have a clue about an adult shop in Murray Bridge.559 3. Police described a third incident that occurred at the Murray Bridge residence, where [JR] and the accused were together in front of a tradesperson and the tradesperson made a joke about having the kids for the holidays, as he thought [JR] was the accused’s daughter. At the time the accused allegedly laughed this off.560 433 In response to this allegation the accused stated that he only attended the Murray Bridge residence when [JR] first moved in. Stating that the tradesperson must have been talking about the person she was living with afterwards.561 Webcam 434 The accused denied being familiar with or using the names Tara and Flynn on internet sites. He stated that [JR] must be confusing him with someone else.562 435 He denied ever making home movies or sex tape movies. He was aware that police would be seizing his electronic devices and agreed that they would not find anything relating to [JR] on them.563 Conclusion of the interview 436 The accused was unsure why [JR] would make these allegations to police. He stated that at the time he thought his actions were a nice thing, but maybe not the right thing. He explained that he saw and spoke to her half a dozen times, and 557 Ibid p 13 [630]-[632]. 558 Ibid p 14 [646]-[651]. 559 Ibid p 14 [653]-[660]. 560 Ibid p 14 [662]-[683]. 561 Ibid p 15 [685]-[691]. 562 Ibid p 15 [693]-[706]. 563 Ibid p 15 [708]-[724]. -- 70 of 96 -- [2024] SADC 106 69 that she always complained and was in trouble. He stated that he had not seen her for years.564 437 When asked about whether they parted on good terms, he stated that they just stopped talking. They both had other interests and may have sent each other a text here or there but that was all.565 Addresses of counsel Prosecution submissions 438 Ultimately, the prosecution case hinged upon an acceptance beyond reasonable doubt of the complainant’s evidence regarding her relationship with the accused and the sexual aspects of that relationship. Ms Andersen submitted that [JR] was a credible and reliable witness. Ms Andersen said that this case could be distinguished from other historical allegations of sexual abuse because this is a case that had significant corroboration, acceptance of some form of relationship, and a number of independent documents and materials that are of assistance when assessing the evidence. 439 Ms Andersen submitted that notwithstanding any inconsistencies, [JR] was credible and reliable and that the accused should be found guilty beyond reasonable doubt. Analysis of evidence The first conversation 440 Ms Andersen conceded that pinpointing the beginning of the relationship between the accused and the complainant was difficult but was potentially explained by a number of possibilities. The prosecution submitted that whilst it was [JR]’s evidence that she attempted to call her friend [TM] and the phone diverted to the accused’s number, [JR] herself highlighted her naivety at the time and difficulties she had with day-to-day functioning. Ms Andersen suggested possibilities such that [JR] might have dialled the wrong number and not dialled her friend's number whatsoever. Ms Andersen referenced the accused’s record of interview where he also was unable to precisely describe their first meeting, although he suggested it was online. Ms Andersen submitted that regardless of this fact, it was not in dispute that [JR] and the accused knew each other and were in contact, she labelled this as an inconsistency of less significance, particularly considering that the two maintained a relationship for a number of years after that. That the two met and made contact was not in dispute. 441 It was not in dispute that the accused was 38 years old at the time of the first conversation, although it was the complainant’s evidence that he introduced himself and stated that he was 28 years old. She said she could not recall if she told him that she was 14 or 15, but said that it was her actual age at the time. 564 Ibid p 16 [733]-[752]. 565 Ibid p 16 [756]-[760]. -- 71 of 96 -- [2024] SADC 106 70 Ms Andersen acknowledged that despite the charged period of offending beginning from 3 February 2001, considering both the complainant’s evidence and the Agreed Facts, it is more likely that the offending began in 2002 once the complainant had commenced at Unity College in year 10. 442 After the first conversation, [JR] said the accused arranged to meet with her when she returned to her home-town, approximately a week after they first began speaking. This evidence was consistent with the accused’s record of interview. The second incident (Baan Hill) 443 In relation to the second incident, Ms Andersen said that whilst there may have been other incidents that could have occurred at this location, [JR] did not attempt to give evidence outside of what she was able to recall in detail, rendering her as an honest and reliable witness. Speaking to the accused over the phone 444 Ms Andersen submitted that another instance that strengthened the reliability of [JR]’s evidence was her description of her phone calls with the accused. [JR] said that she and the accused-maintained contact over the phone with one another, and that they would talk every night. This was corroborated to a certain extent by [AD] who recalled instances where she felt annoyed with [JR] disturbing her between 9:30 pm and 11:00 pm when [JR] was on the phone giggling under the covers. Home life of the complainant 445 The complainant did not give specific evidence regarding whether her parents questioned her whereabouts during the instances when she was spending time with the accused. Ms Andersen submitted that this was due to her volatile and unsafe homelife. The complainant gave evidence that her mother would not care about such matters; the prosecution submitted that this was consistent with her other evidence that the interest the accused showed towards her was the first time she experienced such attention. Evidence regarding the relationship in general 446 Ms Andersen submitted that because the accused provided for the complainant in various ways; cooking for her, buying her things (such as the sex toy and G-string), signing the tenancy for a rental, the complainant had reason to continue to engage with him and/or submit to his sexual advances. Incidents at the accused’s mother’s house 447 The prosecution submitted that the witness was consistent in her evidence that she visited the accused mother’s house multiple times. 448 Ms Andersen highlighted the consistency between [JR]’s evidence surrounding her mother’s suicide attempt in her home-town and the police report in Exhibit P16. -- 72 of 96 -- [2024] SADC 106 71 Filming of sexual incidents 449 The prosecution submitted that the highest of what the evidence of the complainant’s own observations and her own experience at the time amounted to the following: • seeing the webcam; • what she was told by the accused, that is that she was being filmed and streamed to 200 people; • seeing the pop-up messages from MSN Messenger; and • being able to describe the set-up of the hardware. 450 Ms Andersen submitted there were a number of assumptions that the complainant could have made due to seeing the hardware and software, and the potential for her to have drawn conclusions from that particular set-up. In terms of the effect this could have on the complainant’s reliability, Ms Andersen submitted that due to the complainant’s young age, such assumptions should not necessarily be afforded as much weight as the sexual acts she described. In terms of the effect this evidence would have on the complainant’s credibility, Ms Andersen suggested that if the Court was to find that [JR]’s evidence about filming had been embellished, it should not, and does not, detract from the other evidence about the unlawful sexual incidents. Ms Andersen emphasised that the other evidence about sexual acts had not been artificially enhanced in the way the evidence about filming potentially had. Ms Andersen submitted that if the complainant had consciously embellished the filming evidence, she would have included more specificity, and instead this topic was presented vaguely by the witness. The fact that [JR] could not recall if she was filmed on specific occasions, only that she was filmed on occasion by the accused also bolsters her credibility. 451 Ms Andersen submitted that the filming relates to, overall, a relatively small portion of the offending. Ms Andersen said that even if an assessment was to be made that [JR] was unreliable, there are several other pieces of external evidence that can be used to bolster the witness’ credibility. She said that even if such an assessment was to be made, the other incidents can still be considered, and the accused can be found guilty based on her credibility and reliability on those other unlawful sexual acts. Incidents in hotels in the city 452 Ms Andersen raised the inconsistency that arose in cross-examination regarding the hotel that [JR] alleged the accused took her to. It was put to [JR] that she initially told police that she thought she was taken to an Ibis hotel that was not in existence during the time of the alleged incidents. Ms Andersen submitted that the complainant did not purport to be concrete about where she believed the accused took her which was evidenced by the words that she used being 'I think' -- 73 of 96 -- [2024] SADC 106 72 and 'it may have been'.566 There were no records of these hotels due to them not being in existence anymore. Hope Forest address 453 Ms Andersen submitted that whilst the address mentioned by the complainant was not in Meadows itself, she said she gave evidence that she remembers the name ‘Meadows’, which was consistent with the address being on Meadows Road. 454 Ms Andersen said that judicial notice was permitted for the consideration of the proximity of the suburbs of Hope Forest and Meadows as well as when considering where Blackwood High School is in relation to Bellevue Heights, Eden Hills, and Blackwood. Ms Andersen conceded that there was no specific evidence before the Court about locations and distances, but that judicial notice could be engaged for these matters. 455 Ms Andersen submitted that this was particularly compelling evidence because whilst [JR] did not give decisive evidence that the address was in Meadows and she said that this was based on a reference to Meadows that the accused gave, there is corroborating evidence found in Exhibit P11 that confirms that the address history is consistent with the time period that [JR] alleges she attended the accused’s address at Meadows. 456 [JR] also said in cross-examination that she had no idea where the address was and said that whilst she had attempted to conduct her own research, she was unable to locate this address. Ms Andersen said that, as the complainant had been successful in finding conclusions in other areas where she had conducted her own research to do with this matter, this bolsters the probative value of the external evidence of the address and the accurate relevant time period. [JB]’s evidence 457 In relation to [JB]’s evidence about a man attending at the granny flat and her telling him to ‘fuck off’, Ms Andersen conceded that the identity of this man is in issue. However, it was submitted that because of the intrinsic knowledge of this conversation (that is, being told to ‘fuck off’ by [JB]), is directly consistent with what [JB] says about the interaction she had with a younger male who she had seen attend the address, specifically a male in his 40s closer to her height. 458 Ms Andersen submitted that this was an instance of circumstantial identification and that in considering the evidence as a whole, it should be found that this man was the accused. 459 Ms Andersen agreed that [JB] was matter of fact in her presentation whilst giving evidence and that she conceded the limitations of her own memory. Ms Andersen submitted that [JB]’s evidence was consistent with the 566 T155. -- 74 of 96 -- [2024] SADC 106 73 complainant’s, specifically in relation to the granny flat arrangement; internet access; and payment of rent and utilities. 460 Ms Andersen noted that it was a matter of relativity when [JB] described two males, with one that was closer to her height, she did not profess to provide the exact height of either male. Ms Andersen submitted that [JB] was pragmatic in her delivery of evidence and did not purport to give evidence about that which she could not recall or attempt to go beyond vague descriptions of the males. Ms Andersen noted that honesty was not queried in cross-examination, and it was submitted that it was an important corroborative adjunct to [JR]’s evidence. The accused’s knowledge of the complainant’s age 461 Ms Andersen noted that because the accused consistently stated in his record of interview that he had not turned his mind to the age of [JR] at the time when he assisted with her securing a rental property by acting as a guarantor. 462 In considering this evidence, Ms Andersen submitted that the accused’s assertion that he was unaware of the complainant’s age should be rejected and that it is a lie relevant to the credibility of his denial of the sexual activity between him and the complainant, particularly throughout the record of interview. 463 Ms Andersen submitted that this was compounded by the complainant’s evidence about her age including the evidence about the first conversation; the complainant’s evidence of being taken to a sex shop in her school uniform, and the possibility of securing a rental as a 16-year-old. Psychological evidence 464 In relation to Agreed Fact No. 9, the first sentence: 'from 13 to 16 years of age she was sexually abused and filmed by an unknown person who comforted her at the time’, Ms Anderson agreed that one interpretation was that unknown could mean unknown at some point, for example, unknown to her at the commencement of the interaction. Ms Andersen submitted that another possible reason for the word ‘unknown’ was that Dr Gupta had written it intending to show that it was an unnamed person, unknown in the sense that she did not identify him, or that he did not understand the specificities of their relationship. 465 Ms Andersen said that the context surrounding her conversation with Dr Gupta is important, specifically the mental health difficulties she experienced in mid-2018, because these are circumstances that could affect her recollection or resulted in misrepresentations to Dr Gupta. 466 Ms Andersen said that the inconsistencies that may have arisen due to her conversation with Dr Gupta should not detract from her overall allegations of sexual abuse, and if it does impact the overall assessment of credibility or reliability, it should not detract from the overall veracity of the prosecution case. -- 75 of 96 -- [2024] SADC 106 74 Specific inconsistencies on the complainant’s evidence 467 In relation to the incident at the sports oval, and the inconsistency from the complainant about whether a towel or blanket was laid down, Ms Andersen submitted that the complainant’s explanation that 'it means the same in my mind, it was something soft as somewhere to lay down' was sufficient. Ms Andersen described this as a minor inconsistency that should be afforded little weight. 468 Similarly, Ms Andersen said that any inconsistencies regarding the side of the car the towel was laid on and any inconsistency about whether the accused touched her inside the vehicle versus outside the vehicle, should be deemed minor in the grand scheme of the offending as a whole. 469 In relation to the green ute, Ms Andersen raised the objective evidence in Exhibit P10 connecting a green Ford falcon GLI to the accused between 9 April 2002 and 8 October 2002. The registration was transferred on 18 November 2002. Ms Andersen submitted that the green ute being registered in another person’s name is not inconsistent with the complainant’s evidence in relation to the charged offending. Ms Andersen submitted that there was a six-month period of time where the accused had the green ute registered in his name and that that fits with a period of time when the complainant alleges the Baan Hill incidents occurred. Whilst [JR] may have suggested that every time the accused picked her up it was in the green ute, Ms Andersen submitted that this could be explained due to the offending being so significant in the complainant’s mind, that being picked up in that vehicle was linked to such acts. Ms Andersen said that whilst [JR] was not subject to examination as to her knowledge between a utility and tray top vehicle, there was the possibility that she believed that they were the same thing. Ms Andersen submitted that these were not major inconsistencies. 470 In general, Ms Andersen suggested that the fact that 20 years had passed since the offending; and the highly traumatic nature of the complainant’s life, not just with the alleged offending but also her home life, should be considered when performing any assessment of the veracity of her evidence. Ms Andersen submitted that when inconsistencies were put to the complainant, she answered appropriately; for example, when she said that 'again, there were so many incidents [JR] gets a little bit mixed.’ 471 In relation to the complainant’s presentation as a witness, Ms Andersen noted how she consistently expressed her anxiety while giving evidence and attempting to recall details; she generally presented as an honest witness. There were instances where the complainant would not answer a question if she did not recall something. The complainant provided examples of her naivety at the time of the alleged offending, for instance when it came to cooking for herself or ordering a taxi. Ms Andersen said that she could only recall two specific instances of sexual intercourse occurring in the granny flat, which highlights the truthfulness and reliability of the witness. -- 76 of 96 -- [2024] SADC 106 75 [AD]’s evidence 472 Ms Andersen submitted that [AD] was a compelling and truthful witness. Her evidence can be used to corroborate the complainant’s accounts about the late- night conversations with the accused whilst staying at [N] and [B]’s, particularly to corroborate that the conversations occurred, the length of the conversation and their frequency. Ms Andersen said that this corroboration could also be taken into account when accepting the veracity of [JR]’s evidence as a whole. [JG]’s evidence 473 Ms Andersen submitted that [JG]’s evidence, particularly in relation to the frequency of the complainant’s coming and going, provides a degree of corroboration to [JR]’s account, specifically that she would be picked up by the accused and that towards the end of the homestay she preferred to stay at the homestay on the weekends unless she was sneaking out. Similarly, [JG]’s evidence about the arrangements about [JR] staying at the homestay over the weekend was consistent with her account that she did not return to her home-town after the incident in March. Technological evidence about internet and computers 474 Ms Andersen submitted that because Dr Sorell’s evidence was that the relevant technology existed at the relevant time is obviously important. Whether it was a fantasy and could have been researched was also possible. Record of interview of the accused 475 Ms Andersen submitted that this record of interview assists with ascertaining what is not in dispute. She submitted that the topics corroborated by this record of interview are: • he lived in Hope Forest when he knew [JR]; • he recalled having a green utility but could not remember when; • he knew the complainant for a couple years (albeit says she was only a friend); • he had seen her in her home-town and in Murray Bridge; • he said that she was having issues with her father and her uncle; • he confirmed that he travelled from Home Forest to the complainant’s home-town because she asked to see him. 476 In regard to the accused’s evidence, that he did not think about the complainant’s age, Ms Andersen said that it was firstly implausible that a 38-year- old man having some form of friendship with this young person had never turned his mind to her age. Similarly, Ms Andersen submitted that it was likely a lie due -- 77 of 96 -- [2024] SADC 106 76 to his signing of the tenancy, and him being aware of the issues surrounding that. Along those lines, Ms Andersen also submitted that it was highly unlikely that he did not turn his mind to her age when he has also admitted to being aware of her having issues with her home life. Defence submissions Topic 1 – General issues with evidence 477 Mr Marcus submitted that this was, in contrary to the prosecution case, a case that relied entirely on the complainant’s evidence. 478 Mr Marcus outlined the alleged circumstances in which the accused and the complainant met; that is they were unknown together and their first physical meeting involved a sexual activity. Each activity afterwards also involved a sexual activity. Mr Marcus noted that [JR] felt disgusted and mortified after the first incident but continued to see the accused. Whilst Mr Marcus accepted the argument about the complainant’s damaging homelife, he submitted that this does not stand up to a solid analysis. Mr Marcus submitted that this was for several reasons including: • when the complainant was living with [JG], it was a safe environment that involved adults taking adequate care of her, but despite this she continued to meet up with the accused. • whilst the complainant made the argument that ‘being mortified is better than being killed’, it does not make sense that she continued to see the accused after moving permanently out of the home where she was subject to violence at the hands of her father. • the suggestion that she continued to see the accused because he was the only one that paid her any attention does not make sense because [JG] took her in, a schoolteacher that went to the extent of removing her from her dangerous home, so she was clearly paying her some attention. 479 Mr Marcus suggested that the complainant’s statements were internally inconsistent. Mr Marcus submitted that it was contradictory that [JR] was able to easily disclose the abuse she was experiencing at home (i.e., with the IT contractor at school; with [JG]; the police; and DCP) yet was simultaneously unable to disclose the sexual abuse that had been occurring. Specifically, Mr Marcus said the complainant’s explanation for this, that ‘it was more shameful and traumatic even than what [her] father was doing’ was in contradiction with her later statement that she would ‘rather be mortified than killed’. Mr Marcus went on to say that the complainant’s further evidence that her father continued to abuse her was nonsensical due to her being removed from his care; and that her reasoning for not telling the police being due to the deep shame she was experiencing was an inadequate explanation. -- 78 of 96 -- [2024] SADC 106 77 480 Mr Marcus submitted that [JR] continued to have contact with the accused beyond just meeting up with him; she had regular long telephone calls with him. It was Mr Marcus’ submission that her continual contact with him does not align with her description of him as ‘old and unattractive’ and that she would merely need to decline his calls and stop engaging in arrangements to meet him – which required positive action from her end also. The filming 481 Mr Marcus submitted that the fact that [JR] continued to attend the mother’s house, a place where she was subjected to increasingly unpleasant sexual acts such as the shaving of her pubic hair, did not make sense in the context of the traumatic events at home. Mr Marcus queried why she would willingly attend the address, when she was aware of the potential danger she was in. 482 Mr Marcus submitted that there was an issue with the complainant’s explanation about drawing the accused’s attention to her laptop and webcam. Particularly how she claimed that it did not occur to her to hide the laptop or webcam at the premises when she also gave evidence that she told [JB] she did not want the accused to attend at the premises. Visitors to the premises 483 Mr Marcus submitted that [JB]’s identification of the person that visited the house relied on circumstantial evidence. Mr Marcus drew attention to the fact that [JB] described the man in his 40s as closer to her height: noting that she is around 160 cm and the accused is 180 cm. Mr Marcus said that the fact that when that man was denied entry to the premises he responded in an aggressive manner was something that any person could have done. He submitted that: … the only way presumably that [JR] knows that [JB] told someone to fuck off is because [JB] told [JR] that. So for [JR] to be the source or learning that information to then say 'The accused told me when he came to the house I was told to fuck off', well, in my submission, support is perhaps even a misnomer as well because she is simply saying that 'The man I say abused me, I heard my landlord tell someone to fuck off, and I say that the man who abuses me then told me that that happened', it is in an invitation to circular reasoning.567 Complainant’s use of oral contraception 484 As per Agreed Fact No.5, the oral contraceptive pill was first prescribed to the complainant on 7 March 2003. Mr Marcus submitted that, considering the complainant alleges multiple occasions of sexual intercourse prior to this date where the accused ejaculated inside her vagina, this presents a great risk of discovery of an illicit relationship due to the potential for pregnancy. Mr Marcus submitted that the accused would not have unprotected sexual intercourse with an underage person for this reason. Similarly, Mr Marcus noted the complainant’s 567 T479.21-32. -- 79 of 96 -- [2024] SADC 106 78 insistence that condoms were never used, although she gave evidence that the accused occasionally used the ‘pull-out’ method. The Baan Hill incident 485 Mr Marcus submitted that the allegation that the complainant was tied up in the back of the ute and that they had sex in the open was an extreme one, and one that presented an enormous risk of discovery despite being in a somewhat isolated area. The complainant’s description of him cooking the barbeque naked and feeling extremely disgusted during this incident also does not align with her further actions, particularly when he is the person that she calls to pick her up the night her mother threatened suicide. Mr Marcus said this is particularly incredulous considering [N] and [B] and [JG] and [K] were available to rescue her and that they were much closer, around only 45 minutes away, compared to the accused driving from suburban Adelaide. Mr Marcus said it was illogical for the complainant to call the person who she describes as a monster when he is further away, around two and a half hours, leaving her in a dangerous situation with her father. Mr Marcus submitted that this is emphasised by the fact that the phone call is precipitated by horrendous domestic violence, perpetrated by a man who she believes is capable of killing her. This is combined with the presence of the police who could have acted as another source of safety as opposed to the man who was allegedly sexually abusing her. Diverted telephone conversation 486 Mr Marcus said that regardless of how the telephone conversation came about, on the complainant’s evidence the person commenced an immediate sexual relationship with her, albeit in the absence of any evidence or further contact that would amount to grooming behaviour. Mr Marcus noted that there is no evidence of [JR] being threatened by the accused, or offered, any kind of a reward to keep the relationship a secret. 487 Mr Marcus said that the phone call is something that reveals unreliability on the part of the complainant and that it is the first in a series of inconsistencies in her evidence. During his closing address, Mr Marcus re-opened his case to tender a further agreed fact 488 The agreed fact was in relation to [JR]’s affidavit dated 4 May 2022 where she stated that: 'I have not been the victim of any other sexual offending in my life. the accused is the only person who has sexually offended against me'.568 489 Ms Andersen further submitted that great weight should not be placed on this agreed fact as [JR] was not asked to comment on the statement during her evidence. 568 See Exhibit D33 Second Further Statement of Agreed Fact. -- 80 of 96 -- [2024] SADC 106 79 Topic 2 – internal inconsistencies of the complainant 490 Mr Marcus said that the combination of each of the following internal inconsistencies, combined with the external inconsistencies amount to a measurable impact on the complainant’s reliability and credibility. Mr Marcus submitted that these inconsistencies were irreconcilable. 491 The internal inconsistencies Mr Marcus raised were as follows: 1. Whether the item that was placed down when at the sports oval was a towel or a blanket. 2. Whether the sexual activity took place on the left or right side of the vehicle. 3. Whether the accused touched the complainant’s vagina inside the vehicle or outside the vehicle. 4. Whether [JR] met up with the accused a week after the first incident or not (there is no reference to this in her police statements, despite them being in excess of 50 paragraphs long). 5. How she found out about the idea that 200 people were watching the sexual intercourse, whether the accused told her at his mother’s house or at the Meadows house. Three days later she told police that the phrase was uttered at the accused’s house, and that after the three days passed this recollection became clearer in her mind. 6. The complainant’s musings as to the possible hotels and number of hotels she was taken to. The complainant gave evidence that she was taken to four or five hotels. However, in her first statement to police she only mentioned the Ibis hotel on Grenfell Street and did not mention any other hotels. In her communications with Detective Stone, she hypothesised as to the other hotels that she may have been taken to and concluded that she was taken to four or five hotels. Mr Marcus said internal inconsistency number 6 is an example of the complainant’s tendency to answer questions in a way to allow herself leeway. 7. Whether the complainant and the accused had sex on the path on Granite Island or if it took place off to the bushes. Mr Marcus submitted that the complainant’s defence that this inconsistency was semantics was not plausible. 8. In the police report dated August 2021, the complainant agreed that it was possible that she told a friend that someone had broken her fingers, slapper her, raped her, punched her, and strangled her. Mr Marcus submitted that her explanation that those actions did occur, but they had -- 81 of 96 -- [2024] SADC 106 80 not occurred at that time was an unconvincing reason as to why she would be suggesting a sexual act with someone else against her consent. The complainant conducting her own research 492 Mr Marcus said that the complainant’s explanation that she is not familiar with Adelaide because she is a ‘country girl’ is contradicted by the fact that she did her own research regarding the hotels. 493 Mr Marcus submitted that the complainant was intermittently able to use her own research to correct misunderstandings from previous statements. Mr Marcus raised the examples of the complainant being unable to locate where the Meadows address was and the accused’s mother’s house. Topic 3 – external inconsistencies [TM] 494 In relation to the first call, Mr Marcus submitted that it was implausible that the wrong phone number was called because [TM]’s number and the accused’s number were so markedly different. Further, Mr Marcus submitted that it takes some form of positive action on [TM]’s behalf to divert the call and the explanation that that it mysteriously diverted was incredulous. 495 Mr Marcus said that it was somewhat remarkable that [TM] and the complainant did not discuss the telephone conversation with the accused, and the fact that it was absent from the statement also raised questions. Mr Marcus said it is important that based on the statements made by [TM], that she would not have been until halfway through year 10 in 2002, the complainant is out by four months; the complainant said that she was nearly 15 – but on [TM]’s evidence this could not have been the case. Mr Marcus also submitted that this was unsupported by any objective evidence such as telephone records. The green utility vehicle 496 The complainant was clear that the accused collected her in a green utility and says that barring the one time he collected her in a taxi, she was always transported by him in the same green utility. 497 Mr Marcus submitted that the fact that the complainant described the ute as being a tray top is another inconsistency with the external evidence. 498 Mr Marcus submitted that a key issue in relation to the complainant’s evidence about the green ute was that there would have only been a window between June and October of 2002 where the complainant would have had the opportunity to see the green ute. 499 Mr Marcus suggested, that along with other information, the complainant became aware of the accused owning a green ute, not because she saw it but because she heard him talk about it. Mr Marcus said this could also be the case -- 82 of 96 -- [2024] SADC 106 81 with her knowledge of the location of her mother’s house, and his living near a place called Meadows. The hotels 500 In relation to the complainant’s evidence, regarding the hotels she attended with the accused, Mr Marcus submitted that: • the first hotel she said she was abused in was not built at the relevant time; • the second hotel she said she was abused in was not built at the relevant time; • there is no evidence as to the construction of the third hotel she said she was abused in. 501 He submitted that this was not something that someone telling a credible, reliable story would get wrong. 502 Mr Marcus said that there was evidence that the complainant conducted research but it was not until a later stage that a further series of emails took place between the complainant and Detective Stone. At the time when the complainant signed the first statement it was unclear whether any research on the topic of hotels had occurred. The internet 503 Mr Marcus made submissions on the three premises that the complainant alleged there was abusive behaviour involving the internet: 1. In relation to the accused’s mother’s house and as per the Agreed Facts, Mr Marcus noted that there are no records of any internet connection to the accused’s mother’s premises. 2. In relation to the Meadow’s premises, Mr Marcus submitted there is no evidence as to the connection of any telephone service, internet service or anything of that nature to that address. 3. In relation to the granny flat, Mr Marcus referenced [JB]’s evidence that there was no internet unless someone used a phone. Mr Marcus said that whilst [JB] said that she had a phone line at the premises, there was no positive piece of evidence that indicated that there was internet at the premises. 504 Mr Marcus submitted that there was very limited evidence as to whether or not the internet was present at the premises at all. Mr Marcus noted that there was therefore an aspect of forensic disadvantage to this evidence. -- 83 of 96 -- [2024] SADC 106 82 505 Mr Marcus said that the internet-based abuse is integral to the complainant’s narrative. Expert evidence 506 Mr Marcus submitted that Ms Noordin’s evidence was more applicable to the matter at hand due to her being able to provide examples from domestic settings, noting Dr Sorell’s evidence referenced technology available to universities and the like. 507 Mr Marcus submitted that in considering Ms Noordin’s evidence, it was highly unlikely that the filming scenario would have occurred. Mr Marcus went on to submit that the Court would need to be satisfied that there was internet there at all before moving on to consider what else might be proved. Mr Marcus submitted that the contemporaneous recording of sexual abuse, uploading and then whilst the sexual acts are taking place, for there to be live interaction with the said material, is not feasible given the limitations of the technology at the time. Mr Marcus said that it was merely speculative to suggest that the accused could be sending messages regarding the sexual activity that was about to take place, e.g., to take requests from others. Dr Gupta’s report 508 Mr Marcus said that an irreconcilable inconsistency was when the complainant stated that the only person that had sexually abused her was the accused, but also told Dr Gupta that she had been sexually abused by people both known and unknown to her, as well as the fact that she denied ever saying this to Dr Gupta. Mr Marcus submitted said that there was no interpretation of this evidence that could result in an assessment of [JR] being a credible or reliable witness. Mr Marcus said there is no evidence available to find that Dr Gupta has departed from his general practice of contemporaneously taking notes. Mr Marcus offered two possible scenarios to explain this discrepancy: the first being that the complainant has significantly embellished the abuse that she suffered, the second being that she lied when giving evidence in the Court, particularly in relation when answering the question: ‘did you say that to Dr Gupta and have you been abused by more people than just the accused?’. 509 Mr Marcus said that because both of those explanations involve a deliberate telling of an untruth regarding sexual abuse, it is an inconsistency that amounts to a ‘silver bullet’. Mr Marcus submitted that the explanation that the accused was only unknown at a certain point in time was not available to the complainant because she explicitly said that she did not say anything along those lines to Dr Gupta, because the accused was in fact known to her. 510 Mr Marcus submitted that this, combined with the other inconsistencies he raised, clearly demonstrates that the complainant is not a credible or truthful witness. However, he caveated this by saying that he did not want to be mistaken -- 84 of 96 -- [2024] SADC 106 83 for suggestion that the only conclusion is that the complainant was lying; more that the evidence cannot be justified rationally. Topic 4 – manner of giving evidence 511 Mr Marcus’ overarching submission in relation to Topic 4 was that the way the complainant presented and delivered evidence raises serious questions as to her reliability. 512 Mr Marcus provided certain examples of the complainant’s idiosyncrasies when giving evidence, specifically certain phrases that she repeated throughout giving evidence like ‘I can’t remember right now’; ‘I’m flooded with trauma, it’s a bit of a blur.’ Mr Marcus said these mannerisms were a significant bar to the reliability of the complainant. 513 Mr Marcus also submitted that the complainant’s tendency to rely on research she had performed was ‘self-corroboration’ and enabled her to weave the research into her account. He said the key issues was that the corroboratory research was done retrospectively and was not achieved by an independent source such as the investigating officer. Mr Marcus submitted that this was an instance of contaminated evidence even if it was done unconsciously, in this line of argument he referred to the case of Sexton v The Queen,569 particularly paragraphs 190-193 where the Court of Appeal stated, ‘the prosecution ultimately carries the burden of disproving collusion or contamination’. 514 Mr Marcus submitted that much of the complainant’s evidence was not specific enough to be deemed esoteric knowledge; it could have been knowledge that she was capable of obtaining from her non-sexual interactions with the accused. Accused’s interview with police 515 Mr Marcus submitted that the accused presented as candid during his police interview. The accused explained matters to police freely. He admitted to knowing the complainant, meeting with her, and helping her with her rental bond. Mr Marcus submitted that these were benign acts with no connotation of sexual activity. 516 In relation to the accused not turning his mind to the complainant’s age, Mr Marcus submitted that this is not a lie for the relevant purposes. Mr Marcus raised that in a further conversation, the accused signed the complainant’s guarantee when she was 16. Mr Marcus submitted that it would be a dangerous line of reasoning to consider this obfuscation as an indication of consciousness of guilt. 569 [2022] SASCA 73. -- 85 of 96 -- [2024] SADC 106 84 517 Mr Marcus noted that the accused is before the Court without prior convictions. Absence of evidence from potential key witnesses 518 Mr Marcus noted that there are several witnesses that did not give evidence during the course of the trial: • [JU] – who would potentially be able to provide evidence regarding initial complaints made by [JR]; • [RR] – [JR]’s mother, who would potentially be able to provide evidence regarding the alleged domestic violence, and [JR]’s schedule; and • [N] and [B] – the homestay residents, who would potentially give evidence on the regularity of [JR]’s absence from her home when she said she would engage in sexual acts with the accused. 519 Mr Marcus submitted that there were further examples of forensic disadvantage, particularly that there were several records in addition to what had been mentioned that are absent that affect the assessment of the matter including telephone records, call records, subscriber checks, text messages, phone bills of [JR], the accused and [TM]. There are no records of internet accounts at any premises at all, nor are there banking records that point to attendance at hotels, sex shops or cinemas. There are also no evidence of the locations or descriptions of any sex shops in Murray Bridge. Topic 5 – directions applicable to this matter 5. Mr Marcus submitted that there were a number of matters that amounted to forensic disadvantage. They were as follows: a. Mr Marcus said that the typical issue regarding the passage of time, being 20 years applied here as a forensic disadvantage, but specifically that the accused is not able to remember himself what happened, but also that other witnesses that could have assisted with prompting his memory were not present in proceedings; b. Mr Marcus submitted that the general inability to access records and documents due to time passed was a disadvantage. Particularly as many of the records related directly to the charged acts, e.g. the hotel records and phone records. There are also no objective floor plans of the premises available to compare to those that [JR] has drawn; c. there is no evidence of the reciprocal complaint as received by [JU]. -- 86 of 96 -- [2024] SADC 106 85 520 Ultimately, Mr Marcus submitted that this was a matter where there was insufficient evidence available to prove that these events occurred to any standard, let alone to the standard of beyond reasonable doubt. Combined with this, Mr Marcus submitted that there are pieces of evidence that render impossible the version of events described by [JR]. Mr Marcus submits that alone, the inconsistencies are not fatal, but the culmination of the inconsistencies are fatal to the Crown case. Consideration Forensic disadvantage 521 Whilst the requirement to direct on s 34CB of the EA does not apply to a trial by judge alone, the principle of forensic disadvantage remains. The question of forensic disadvantage pursuant to s 34CB of the EA was discussed by the Court of Criminal Appeal in R v Cassebohm,570 R v Maiolo (No 2),571 R v W, PK,572 and more recently in R v R, PA.573 522 What is crucial is that s 34CB is exclusively directed at the forensic disadvantage to the accused, and that disadvantage is not diluted by virtue of similar disadvantages to the prosecution witnesses. 523 In R v Cassebohm, Doyle CJ, relevantly said: I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. 524 In R v Maiolo (No 2), these factors result in a diminution of the accused’s ‘ability to effectively conduct the case including to cross-examine the complainant in a way that effectively casts doubt upon issues of credibility and/or reliability’. 525 I direct myself that the accused has been substantially forensically disadvantaged in terms of being able to effectively conduct his case. I will take into account that forensic disadvantage to the accused when I come to scrutinise the evidence of the prosecution, and to assess whether the prosecution has proved the objective elements against the accused. In this case, the forensic disadvantage extends to the matters identified by defence counsel during the closing address and referenced it in [519]-[520] above. In addition, I accept the existence of a forensic disadvantage in accordance with that expressed in R v Maiolo (No 2), above. Complaint 526 The law governing the admission of the complaint is controlled by s 34M of the EA, which provides: 570 (2011) 109 SASR 465. 571 (2013) 117 SASR 1. 572 [2016] SASCFC 5. 573 [2019] SASCFC 19. -- 87 of 96 -- [2024] SADC 106 86 34M—Evidence relating to complaint in sexual cases (1) This section abolishes the common law relating to recent complaint in sexual cases. … (2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. (3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. Examples— Evidence may be given by any person about— • when the complaint was made and to whom; • the content of the complaint; • how the complaint was solicited; • why the complaint was made to a particular person at a particular time; • why the alleged victim did not make the complaint at an earlier time. (4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that— (a) it is admitted— (i) to inform the jury as to how the allegation first came to light; and (ii) as evidence of the degree of consistency of conduct of the alleged victim; and (b) it is not admitted as evidence of the truth of what was alleged; and (c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case. (5) It is not necessary that a particular form of words be used in giving the direction under subsection (4). (6) In this section— complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); -- 88 of 96 -- [2024] SADC 106 87 initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). 527 The initial complaint in this matter was made by the complainant to [JU]. That complaint consisted of a disclosure ‘I told [JU] that [the accused] was having sex with me and filming it and that I didn’t like it’.574 528 This complaint is admissible as the initial complaint. The complainant confirmed this was the first occasion that she had told anyone about the allegations and it is referable to the charged offending. I am satisfied that the disclosure complies with the statutory prerequisites for admission, pursuant to s 34M of the EA. 529 The disclosure reveals how the allegations came to light, and to indicate some consistency of conduct,575 although the absence of evidence from [JU] moderates, to some extent, the weight to be afforded to the complaint. Record of interview of accused 530 The police record of interview with the accused confirms a number of matters that are not in dispute, which include: 1. [JR] and the accused knew each other for a couple of years, probably from about the time he lived in Hope Forrest;576 2. The accused owned a green 1997 utility vehicle; 3. The accused had seen [JR] in Murray Bridge and her home-town; and 4. The accused had guaranteed the Jeffrey Street rental property for [JR]. 531 The accused denied that he and [JR] were anything other than friends. 532 The prosecution submitted that the denials of the accused as to any sexual contact with [JR] should be rejected as not being reasonably possibly true. The primary basis for the submission were the comments of the accused to the effect that he never really gave any thought to [JR]’s age during the course of their interactions. This suggestion needs to be considered in the context of [JR] being about 14 or 15 years old and the accused being 38 years old at the relevant time. Further, relevant context exists in the fact that [JR] and the accused were complete strangers when they first made contact with each other. Common sense dictates that the age difference and [JR]’s relatively young age would have been something exercising the mind of the accused. 574 T69. 575 R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98. 576 Exhibit P11 has the accused residing at Hope Forrest from 2 July 2003. -- 89 of 96 -- [2024] SADC 106 88 533 This aspect of the interview is unsatisfactory and is not truthful. This is not a lie borne out of a consciousness of guilt. I take this lack of candour into account in assessing the version provided by the accused in his record of interview. 534 It is self-evident that the prosecution case relies on an acceptance of [JR]’s evidence beyond reasonable doubt. 535 At the outset of this analysis, there are a number of issues that operate against the prosecution case – these include: 1. The complainant’s evidence as to how the complainant and accused first came into contact with each other; 2. The complainant’s evidence of sexual encounters said to have taken place at hotels that did not exist at the relevant time; and 3. The inconsistency between the complainant’s evidence, previous statements to police and the Agreed Facts relating to the complainant’s narrative with Dr Gupta in 2018. First contact 536 [JR] gave evidence that when she was in year 10 at school, she made a telephone call to her friend [TM]. [JR]’s evidence was that she dialled [TM]’s number and that [TM]’s phone rang out, before ‘diverting’ to another mobile, by chance to the accused. [JR] described a male answering the phone, exclaiming ‘well this is a mystery’. It is apparent [JR] did not know who she was talking with. According to [JR], a 40 minute conversation took place including, on [JR]’s evidence, she having a specific recollection of discussing her and the accused’s age and making arrangements to meet up in person one week later. 537 [JR] stated that the phone call took place at the start of the school year, when she was 14 or 15 years of age. 538 During evidence-in-chief, [JR] stated that she did not recall speaking to [TM] after the phone call, also stating ‘I don’t really think I’ve spoken to her much’.577 539 Contrary to this initial claim, when pressed on this topic under cross-examination, [JR] appeared to adopt a different position. [JR] stated that she did tell [TM] that her phone had diverted to an unknown person. 540 Exhibit P14 is the affidavit of [TM] and was tendered on the agreed basis that the contents of the affidavit represent the evidence [TM] would have given in evidence. 541 [TM] stated that she and [JR] were never close friends. [TM] stated that she doesn’t remember giving [JR] her mobile number and that if she did, it would not 577 T13. -- 90 of 96 -- [2024] SADC 106 89 have been until halfway through year 10 in 2002. [TM] does not recall making or receiving any telephone calls to or from [JR]. 542 The evidence of [JR] on this topic was disconcerting. It seems implausible that by pure chance, the mobile telephone of the complainant’s friend diverted to a complete stranger who then participated in a 40 minute phone call with [JR], during which it was arranged for a physical meeting to take place within the week. A meeting at which it is alleged sexual intercourse took place within what must have been only a matter of minutes of meeting. The unchallenged evidence in Exhibit P14 tends to suggest that it is unlikely that [TM] gave [JR] her mobile telephone number in the first place. I regard the evidence of [JR] as to the circumstances of her first contact with the accused to be questionable. When combined with the confluence of surrounding circumstances, the account seems extremely unlikely. The hotel evidence 543 [JR] gave evidence-in-chief regarding a number of acts of abuse said to have occurred at ‘fancy hotels’ located in the CBD of Adelaide. This, [JR] stated, occurred on four or five occasions. 544 The following exchange took place during the evidence-in-chief of [JR]: Q Do you recall any of the particular hotels that you went to. A No. I wasn't from the city, I was from a rural area and I'd probably come to Adelaide once or twice a year and wasn't familiar with that at all. 545 Under cross-examination, on the topic of meeting places, [JR] agreed that in a statement to police, she stated that the accused took her to the Ibis Hotel on Grenfell Street. [JR] then conceded that the Ibis Hotel she identified was not built until 10 years after the alleged sexual abuse was said to have taken place at that very hotel. 546 During the course of cross-examination, [JR] was questioned about email communications which took place between [JR] and the investigating officer, Detective Stone. [JR] accepted that she was informed by Detective Stone in 2021 that the hotel she identified as a location at which the abuse had occurred did not exist at the relevant time. 547 [JR] accepted that she then nominated two further alternative hotels where the abuse occurred. [JR] identified the Novatel and the Sofitel. [JR] agreed that, as a consequence of investigations conducted by Detective Stone, [JR] became aware that the Sofitel was also not built at the relevant time. When questioned about whether the third option suggested, the Novatel, was where the abuse occurred, [JR] stated that she had ’no idea’. 548 [JR]’s explanation for her incorrect identification of hotels at which abuse occurred (on the basis they were not in existence at the relevant time), and her -- 91 of 96 -- [2024] SADC 106 90 statement disavowing a further previously identified hotel was that she was not familiar with Adelaide. That explanation fails to explain [JR]’s preparedness to identify and proffer specific locations. 549 There are a number of concerning aspects to this aspect of [JR]’s evidence: 550 First, the evidence is plainly unreliable. Two of the identified hotels were not built at the time of the allegations. 551 Second, no hotel allegations were included amongst the initial allegations of abuse. 552 Third, [JR] clearly identified with precision the first hotel in which abuse took place, which turned out to be an impossibility. 553 Fourth, when confronted with information from the investigating officer that the first hotel identified could not possibly be correct, [JR] proffered what she perceived to be plausible alternatives. 554 Fifth, one of the plausible alternatives was proved to be implausible. 555 Sixth, under cross-examination, a further suggested plausible alternative was effectively abandoned by [JR]. 556 Even if one were to accept, for arguments sake, the explanation proffered by [JR] to account for the impossibilities and defects in this evidence, the vice remains nonetheless. [JR]’s credibility and reliability have been adversely impacted. The ultimate position adopted by [JR] is that due to her naivety, she does not know the hotels where the abuse occurred. An acceptance of this explanation is capable of supporting the adverse finding that [JR] was prepared to readily incorporate unknown details into her account of the offending. This readiness to tailor her evidence, self-evidently, is problematic to an assessment of [JR]’s reliability. However, the difficulty is compounded by the apparent willingness of [JR] to alter or modify her position when informed by the investigating officer that her version cannot be factually correct. This demonstrates a willingness to tailor a version of events to potentially achieve a desired outcome. 557 The apparent willingness of [JR] to revert to the position of simply not knowing the hotel or hotels involved when confronted with the impossibility of her assertions is also concerning. 558 This aspect of the evidence has adverse implications on the reliability of [JR]. It also has adverse implications on an assessment of [JR]’s credibility. It is demonstrative of a willingness to insert information now admittedly unknown by [JR] into her narrative in an apparent attempt to bolster detail and lend credibility to her allegations. Further, it is demonstrative of a willingness on the part of [JR] to adapt a version given when provided with information contrary to that previously stated. -- 92 of 96 -- [2024] SADC 106 91 559 The problems that arise on this aspect of [JR]’s evidence are not peripheral. They undermine her account of abuse occurring at the hotels. They go to the heart of an assessment of the reliability and credibility of [JR]’s evidence, upon which the prosecution case relies. 560 Even if [JR] genuinely believed she was abused by the accused at the CBD hotels, this aspect of the abuse did not feature in her initial disclosures. [JR]’s ultimate position was that she did not know the hotels where the abuse took place. Against that background [JR] was prepared to invent and then modify details to support her account. These inconsistencies and a willingness to invent detail is significantly destructive to the prosecution case. Statements by [JR] to Dr Gupta 561 Agreed Facts [8]-[12] set out details relevant to a comprehensive mental health assessment conducted on [JR]. 562 It was submitted that the contents of Dr Gupta’s report following the assessment revealed a number of inconsistencies, including: • the age at which [JR] suffered sexual abuse; • the number of perpetrators of the sexual abuse; and • the identity of the abusers. 563 The relevant details of this evidence include the disclosure to Dr Gupta wherein [JR] stated she was 13 when the abuse started, that she was abused on multiple occasions by multiple people and that some of the offenders were known and some unknown. 564 It is to be noted the Agreed Facts state that Dr Gupta’s usual practice is to record what was said during an assessment as accurately as possible. 565 A further Agreed Fact was introduced into evidence (Exhibit D33) which reveals: In an affidavit sworn by [JR] dated 4 March 2022 at paragraph 4, she says the following: I have not been the victim of any other sexual offending in my life. [The accused] is the only person who has sexually offended against me. 566 Under cross-examination, [JR] denied stating to Dr Gupta that she was abused from 13 to 16 years of age. [JR] denied stating that she was abused by multiple people on multiple occasions. [JR] denied stating that some of the abusers were known and some unknown. 567 Where there is conflict between Dr Gupta and [JR], I prefer the version proffered in the Agreed Facts that encapsulate the version of Dr Gupta. -- 93 of 96 -- [2024] SADC 106 92 The contents of the Agreed Facts are uncontested. The detail as to the records of Dr Gupta in the Agreed Facts, coupled with the uncontested approach to Dr Gupta’s accurate record making leaves no room for ambiguity. 568 I have carefully considered the submissions of counsel on this topic in relation to whether any inconsistency has been proved and if so, the significance of any inconsistency. 569 I do not accept that the suggested inconsistencies can be explained away by effectively being lost in translation. It follows that I find [JR] made the identified statements to Dr Gupta. Therefore, they are to be considered as prior inconsistent statements. 570 These inconsistencies are not peripheral in nature. They go to matters of significance: when the abuse started, how long the abuse persisted and to the identities of some of the abusers, if indeed that was ascertainable. It also proves an inconsistency in that [JR] previously stated her only abuser is the accused. [JR]’s change in circumstance 571 On [JR]’s version, within a week of first contacting a complete stranger more than 20 years her senior, by chance, via telephone, she left her home at night, walked to the end of her street, got into the stranger’s car and shortly after was the victim of a serious sexual offence. 572 [JR] explained that each time sexual contact occurred, she felt disgusted, ashamed, mortified, nauseous and dirty. She explained her apparent readiness to repeatedly meet with the accused notwithstanding these feelings of repulsion was that she was exposed to violence at her family home. Whilst this may provide some explanation for her desire to escape whilst still living at the family home, the force of the explanation dissipates once [JR] moved out of home. There is some discrepancy on the evidence as to when this took place. However, given the evidence of [JR] combined with Agreed Fact 7 of Exhibit P16, it would seem that [JR] was living with [JG], a teacher at her school, by early 2003. On this basis, [JR] confirmed she met with the accused on many occasions well after she had moved away from the family home. In those circumstances, the explanation of needing to flee thereafter is questionable. Identity of male visitor at Doecke Road 573 Evidence was given by [JR] and [JB] about a brief conversation [JB] had with an unknown male in 2002 and 2003. [JR] described the man as being about 40, closer to her height (5 foot 3 inches, 160 cm), with a more olive complexion than hers. [JR] stated that the male may have made a comment about coming to see [JR]. When [JB] ordered the male to leave the property, he called [JB] a ‘fucking bitch’. 574 [JR] gave evidence that the accused told her that he told [JB] to fuck off. -- 94 of 96 -- [2024] SADC 106 93 575 The accepted limitations of [JB]’s memory, the discrepancy in the description of the height of the male when one considers the accused is considerably taller (5 foot 10 inches, 182 cm), and the possibility of contamination between [JB] and [JR] about the conversation, this combination of circumstances suggests against drawing a positive conclusion that the accused was the male visitor. The IT evidence 576 Much of the evidence led at trial related to the likelihood or otherwise of the technical capability to live-stream sexual activity alleged to have taken place between [JR] and the accused. As previously stated, [JR] alleged that the accused would engage in sexual activity and live-stream this activity to an audience using both his and her electronic equipment. This has said to have taken place at three premises. 577 Whilst I accept that there are no records of internet connections to each of the residences, this is not determinative of the issue. It seems to be common ground that the equipment required to facilitate live streaming existed at the relevant time, and the dispute appears to be focussed on whether the technology at the time was capable of performing the suggested functions. 578 Ultimately, I am satisfied that the necessary infrastructure (dial up internet), equipment (computer and webcam) and technology (streaming program) existed at the relevant times. This means that what is alleged by [JR] was possible, with the caveat that the majority of users for this type of communications were educational (e.g. Universities) and corporate entities. Domestic use is certainly not excluded. However, it is apparent from the expert evidence the quality of the streaming would be very poor by contemporary standards. 579 Whilst the capability to live-stream existed at the time, the question still remains, is the complainant’s evidence credible and reliable beyond reasonable doubt? The existence of a possibility that some form of live streaming was capable at the relevant time is far from being determinative of the primary issue at trial. Additional matters 580 The prosecution has correctly identified a number of topics that were not in dispute. They include, but were not limited to: 1. That a form of ‘relationship’ or association was brought into existence between [JR] and the accused without any previous connection; 2. The accused picked up [JR] from her home-town on at least one occasion; 3. The accused, at some stage, had a green utility; 4. The accused had driven a taxi at some relevant time; -- 95 of 96 -- [2024] SADC 106 94 5. The accused had acted as a guarantor for [JR] at the Jeffrey Street rental property; and 6. That the mother of the accused lived near Blackwood High School. 581 Whilst these matters were not in dispute, they provide limited assistance determining the primary issue at trial, that is whether two or more unlawful sexual acts took place. This evidence can be neutrally explained by the existence of some form of relationship between [JR] and the accused, which is not in dispute. It is undoubtedly odd, if not suspicious, that two strangers aged 15 or 16 and 38 spontaneously formed some type of relationship. However, without an acceptance beyond reasonable doubt of the complainant’s evidence regarding the particularised acts of sexual abuse, the suspicions attaching to the relationship are not sufficient to prove the charge. 582 Notwithstanding there was nothing in the demeanour of the complainant in the course of examination-in-chief or cross-examination which caused me any concern about her credibility or reliability, it is vital that demeanour and presentation not be given undue weight in an assessment of honesty and reliability. Any determination of those issues can only be made having regard to the whole of the evidence, the criticisms raised by defence in the course of the trial, and whether there is support for [JR]’s evidence. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of the complainant’s evidence, it is trite to say that the prosecution case stands or falls on an acceptance of her evidence as to whether the sexual acts took place, beyond reasonable doubt.578 583 On the whole of the evidence, in particular given the inherent unlikelihood as to aspects of [JR]’s evidence, the willingness of the complainant to tailor her evidence when confronted with objective problematic issues, inconsistencies as to matters of significance, including but not limited to the inconsistencies arising from [JR]’s disclosures to Dr Gupta, the forensic disadvantage suffered by the accused, and bearing in mind the very high burden that rests upon the prosecution, I am left with a doubt that the accused intentionally committed two or more unlawful acts during the course of the relationship with the complainant. 584 I find the accused not guilty. 578 Murray v The Queen (2002) 211 CLR 193 [57]. -- 96 of 96 --