[2024] SADC 110

Prosecution: R Counsel: MS M MCKENDRICK - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: PETER MATTHEW SCHMIDT Counsel: MR P DAWES - Solicitor: MCGRATH LAWYERS Hearing Date/s: 17/09/2021, 09/02/2022, 23/02/2022, 30/03/2022, 05/09/2022, 07/09/2022, 09/09/2022, 25/07/2023, 02/02/2024, 12/02/2024, 13/02/2024, 14/02/2024, 15/02/0204, 16/02/2024, 14/03/2024, 01/07/2024, 04/09/2024, 05/09/2024 File No/s: DCCRM-21-1109 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 SCHMIDT Criminal Trial by Judge Alone [2024] SADC 110 Reasons for the Verdict of her Honour Judge Fuller 19 September 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD Accused charged with maintaining unlawful sexual relationship with a child – complainant was his younger sister – offending alleged to have occurred when accused stayed with complainant and family at various houses between 2008 – 2015. Unlawful sexual acts alleged were multiple acts of fellatio, touching of the vagina, kissing with open mouth and one act of cunnilingus. Complaint made to DCP social worker in July 2017. Accused arrested on 14 June 2019 and interviewed – denied allegations. Held: Complainant failed to come up to proof on two of the particularised unlawful sexual acts alleged in the Information - credibility and reliability of complainant’s account undermined by multiple prior inconsistent statements on material matters. Accused’s denials could not be rejected as not reasonably possibly true. Verdict: Not guilty. Criminal Law Consolidation Act 1935 (SA) s 50(1); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 13A, referred to. R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v The Queen (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; R v M, AS (2013) 118 SASR 160; DES v The Queen [2020] SASCFC 32; Ferguson v The King [2024] SASCA 63; 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 M, AS (2013) 118 SASR 160; Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257; De -- 1 of 42 -- Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100; R v Alwazain [2016] SASCFC 155, considered. -- 2 of 42 -- R v SCHMIDT [2024] SADC 110 The charge 1 The accused is charged on Information 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).1 Particulars of Offence Peter Matthew Schmidt between the 7th day of May 2008 and the 22nd day of July 2015 at Seaton and other places, maintained an unlawful sexual relationship with [SR], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: (a) Causing her to perform an act of fellatio upon him on more than one occasion; (b) Touching her vagina on more than one occasion; (c) Kissing her with an open mouth on more than one occasion; and (d) Performing cunnilingus upon her on one occasion. The plea 2 The accused pleaded not guilty before me on 12 February 2024 and at his election I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver. Elements of the offence 3 To prove the charge of maintaining an unlawful sexual relationship with a child, the prosecution must prove beyond reasonable doubt that: • The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts. • Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant. • At the time the accused committed two or more unlawful sexual acts, he was an adult. • At the time the accused committed two or more unlawful sexual acts, the complainant was a child. 4 An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with a child over any period. 1 The prosecution declined to amend the statement of the offence to ‘Sexual Abuse of a Child’: T 2. -- 3 of 42 -- [2024] SADC 110 2 5 An unlawful sexual act is any act that constitutes or would constitute, (if particulars of the time and place at which the act took place were sufficiently particularised) a sexual offence. 6 In this case, the unlawful sexual acts alleged are as follows: • Unlawful sexual intercourse (particulars (a) and (d)). • Indecent assault (particulars (b) and (c)). Unlawful sexual intercourse 7 To prove the charges of unlawful sexual intercourse with a child under the age of 17 the prosecution must prove beyond reasonable doubt: • The accused had sexual intercourse with the complainant. • The complainant was under the age of 17. 8 Sexual intercourse is defined as including the penetration of a person’s vagina, labia majora or anus by any part of the body of another person, fellatio or cunnilingus. Indecent assault 9 An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. 10 If it is proved that the complainant was under the age of 14 years at the time of the indecent assault, a circumstance of aggravation will be proved. If that is not proved, but all of the elements of the offence are proved, the charge of indecent assault will be proved. Issues in dispute 11 The central issue in dispute was whether the alleged offending as described by the complainant in fact occurred. General directions 12 The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,2 whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v 2 R v G [2015] SASC 186. -- 4 of 42 -- [2024] SADC 110 3 Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J. 13 The general directions were summarised by Lovell J in R v G. They are as follows: As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence. The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged. The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise. The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt. I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty. 14 The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.3 The accused’s record of interview, and any admissions or denials I find contained therein, is evidence in the case that I can take into account in determining whether the charges have been proved beyond reasonable doubt. There is no onus on the accused to prove anything he said in his record of interview. 3 Azzopardi v The Queen (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67]. -- 5 of 42 -- [2024] SADC 110 4 Overview of the prosecution case as opened on 15 The complainant, SR is the half-sister of the accused. She was born on 8 May 2003 and she and the accused have the same mother, VS. The accused is the eldest of the 8 children of VS. He was born in 1989. 16 Between around 2008 and 2015 when SR was between 5 and 12 years of age, the accused regularly engaged in unlawful sexual acts with her. The first occasion which SR could recall was when she was around 8 years of age, in 2011. However, this was not the first occasion of sexual abuse. On this occasion, SR was asleep in the bedroom she was sharing with her sister M, when the accused came in and woke her up and directed her to follow him to another room. The accused then exposed his penis, encouraged her to perform fellatio on him and directed her head onto his penis. She could not recall if he ejaculated on that occasion. 17 The accused also touched SR on the vagina, kissed her with an open mouth and on one occasion performed cunnilingus on her. However, the sexual acts that were most prominent in her memory were the accused taking her out of her bedroom at night and forcing her to suck his penis or ‘thing’ as she referred to it. There were many other occasions when the accused would take her out of her room in the middle of the night into other rooms in the house and she would perform an act of fellatio on him. It usually occurred in the bathroom or the toilet. Other times it would take place in the room in which the accused was staying. Initially the accused did not ejaculate but after a period of time he began to ejaculate regularly in her mouth. 18 SR’s family life involved moving houses regularly and she lived in Seaton, Lockleys and Murray Bridge. She grew up with her younger siblings, M, D junior and L. In addition, Andrew Thomas lived with the family and, although not related, was referred to by SR and the other children as Uncle Andy. The accused had a difficult and fractious relationship with VS and was not living in the family home but would visit and stay overnight or for longer periods. It was on the occasions that he visited or stayed overnight that the sexual abuse would occur. He would also kiss her and touch her on the vagina. The offending continued at the various houses in which the family lived until an occasion in July 2015 at the accused’s house in Whyalla. The family had been staying there for a few weeks and during that period the accused woke up SR in the night and took her to the bathroom or toilet and made her fellate him until he ejaculated. 19 SR recalled one occasion when VS went shopping and took all the children except SR and her brother D junior. The accused made D junior stay in the lounge room and took SR into his bedroom where he forced her to fellate him. He had ejaculated and was pulling up his pants when D junior walked into the room. SR was not sure if D junior saw anything. 20 The very last occasion of sexual abuse was on the last night the family stayed with the accused at Whyalla. The accused said he would help VS with the children and took them out of the kitchen. SR ended up alone in a bedroom with the accused -- 6 of 42 -- [2024] SADC 110 5 and he kissed her using his tongue, before placing his hand down her pants, touching her over the top of her vagina and clitoris. He did not penetrate her. The accused then told her that the next time they were properly alone together, they would have sex. He told her to pull down her pants and lie back on the bed. The accused knelt on the floor, parted her legs and licked her vagina. He then stopped this, and SR got up. He pulled down his pants and forced her to fellate him until he ejaculated. He cleaned himself up and told her to wait ten minutes before leaving the room. SR was 12 years old. 21 Later that same evening, VS and the accused fought. VS was arrested by police and Uncle Andy and the children stayed at a neighbouring property in Whyalla. They went back to Murray Bridge the next day and SR never saw the accused again. 22 As a result of VS’ drug and alcohol addiction, the children were removed from her care and SR was placed in a home. During this time, SR met a social worker, Annette Maree. In 2017, SR trusted Ms Maree sufficiently to disclose what the accused had done to her. She walked to the DCP office in Blair Athol one day and asked to see Ms Maree. She told Ms Maree that the accused made her ‘suck him off’. 23 The accused was arrested and participated in a record of interview. He denied the allegations but said he had spent time with SR when he visited for weeklong periods. The evidence 24 I turn now to examine the evidence in detail. The complainant – SR 25 SR gave her evidence via AVL, the court was closed during her evidence, and it was recorded by audio visual means. I made orders for these arrangements to be in place pursuant to s 13A and s 13C Evidence Act 1929 (EA). Pursuant to s 13A (12) EA, I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to SR’s evidence. 26 SR was twenty years old when she gave evidence. She was born on 8 May 2003. Her parents were VS and MR, but she did not meet her father MR until she was 15 or 16.4 She had older brothers, the accused and D, older sisters L, C and A and then a younger sister M and two younger brothers D junior and L. Her younger brother D junior was born in 2005. Growing up she lived with her younger siblings but when the family lived in Seaton, C lived there, and the accused would come and stay.5 4 T 12. 5 T 12-13. -- 7 of 42 -- [2024] SADC 110 6 27 After living at the Seaton address the family moved to 8 White Avenue, Lockleys. She went to Hendon Primary School when the family lived at Seaton and Lockleys. The next school she could remember attending was Murray Bridge Primary. The family lived at 1/9 Tussock Place and 8 Owl Drive in Murray Bridge.6 28 When the family lived at Seaton, the accused would stay occasionally but never lived there. He sometimes visited for a couple of weeks or months when he was in his twenties then. SR was asked to describe her relationship with the accused, and she said: I’ve always been awkward around Peter, even as a kid, but because of what was going on and what was happening to me, it was normal. I didn’t know any different, and so I clung to men. I clung to him, I clung to anyone. I was a clingy person.7 29 SR said the accused forced her to perform oral sex on him on ‘multiple, numerous, countless occasions’. She could not recall the first time this happened, but she could recall subsequent occasions. She said they had a repetitive pattern: I would, either at night or when no-one was home, be taken from my bedroom or anywhere in the house into a bathroom or secluded area of the house where there was no one else and I was made to perform oral sex on him.8 30 Whenever he woke her up, he would say ‘come on, let’s go’.9 31 The first occasion of sexual abuse that she could recall took place at the house at Seaton. SR gave this evidence: A The first occasion I can recall is at the Seaton house. Q And can you describe to the court what occurred on that first occasion that you can recall. A I was in my room and I don’t think [C] had come over from Perth yet at this stage, but he had taken me to the bathroom, like guided me towards the bathroom with him, and he had taken his pants down and by that point I’m pretty sure I already knew what to do. Q You said he guided you towards the bathroom. Can you just break that down into what happened. A I’m not completely sure on the exact specifics but I’m pretty sure it was when everyone was out in the backyard in the pool and I was in my room and he asked me to follow him to the bathroom, so I did. Q What did he say to you, when you said he asked you to follow. 6 T 13-14. 7 T 15, 27-31. 8 T 16, 20-24. 9 T 16. -- 8 of 42 -- [2024] SADC 110 7 A I’m not completely sure on that. It was a very long time ago. Q Can you recall what time of the day it was, whether it was morning, midday, night. A Because everyone was in the pool I’m pretty sure it was midday or like late evening. … Q And can you recall where [M] was on this occasion when Peter came and got you. A I think she was in the pool with everyone else. Q When Peter guided you to the bathroom, did you say anything or did he say anything. A I didn’t say anything but I’m not sure if he said anything either. Q Do you recall what you were thinking at that time. A Not really. I know I was just, you know, it’s another thing. Q Did you know why he was taking you to the bathroom. A Yes I did. Q And what makes you say that. A Because I’m pretty sure he had done it on more occasions before then, so I’d already known by this point. Q When you say you’re pretty sure, do you recall those other occasions. A No. This is the first occasion I can recall.10 32 SR then said that the accused pulled his pants down and guided her head towards his penis. He guided her to her knees and had his hand on the back of her head.11 She felt nervous and anxious as she normally was during these encounters. She assumed the accused was wearing clothes because everyone else was in the backyard, but she could not recall him wearing clothes.12 His penis went in and out of her mouth until he pulled out his penis and ejaculated into the toilet.13 She left the bathroom and went outside ‘like normal’. 33 She did not tell anyone what happened until she spoke to her DCP social worker Annette later on.14 She did not tell anyone about what happened because she was afraid. The accused had threatened her and her family; he said he would kill them if she ever told anyone.15 She could not recall where she was when this happened or how old she was or the exact words that the accused used but she 10 T 17, 16-37; T 18, 1-2, 20-38. 11 T 19. 12 T 20. 13 T 21. 14 T 22. 15 T 22. -- 9 of 42 -- [2024] SADC 110 8 knew he used the word ‘kill’. The threat was made before the first occasion of fellatio that she could recall. She could not recall the circumstances in which the threat was made.16 34 SR said after a while of ejaculating into the toilet on other occasions when he made her fellate him, he started ejaculating into her mouth.17 35 A floor plan of the Seaton house was tendered in evidence: Exhibit P1. SR marked the floor plan to show amendments to it: Exhibit P1A.18 She slept in the girls’ room and the accused slept in the boys’ room with Uncle Andy, D junior and L. The bathroom to which the accused took her was opposite the boys’ room. On the first occasion of fellatio that she could recall, the accused closed the bathroom door.19 36 SR said the pool was an inflatable one that could be filled with a hose. SR marked its position on P1.20 SR said that the accused only stayed for a couple of weeks and did not otherwise visit the house at Seaton. He would sexually abuse her whenever he could, ‘like every day’ but she then said she could not recall how many times.21 37 SR said that her relationship with the accused was otherwise normal. She did not normally hang out with him much.22 38 When SR was living at 8 White Avenue Lockleys there was an occasion when everyone (D junior, M, L, Uncle Andy, and VS) was asleep, and the accused came into the girls’ room she shared with M and asked her to follow him to the bathroom. She could not recall what M was doing but thought she was asleep. She followed the accused to the bathroom and then proceeded to fellate him. She said this was normal to her. She could not recall if either of them spoke. She thought he had ejaculated into the toilet, but she was not one hundred percent sure. This happened more than once at the Lockleys address unless he could not get her alone or had gone somewhere else for the night. The oral sex usually lasted about five minutes or less.23 39 The accused also visited when they were staying at a house on Henley Beach Road, Lockleys. They moved there after living in Darwin for a while. They moved so often because her mother was a drug addict and alcoholic and could not ‘keep a house to save her life’.24 16 T 28-29. 17 T 22. 18 T 26. 19 T 27-28. 20 T 28. 21 T 34-35. 22 T 30. 23 T 30-33. 24 T 34-35. -- 10 of 42 -- [2024] SADC 110 9 40 When the accused stayed at the house at Seaton, he would babysit the children when VS went out. On those occasions, Uncle Andy was home as well. VS left the house for varying periods, hours sometimes days and sometimes weeks.25 41 SR said that she did not think the accused visited them at the Henley Beach address.26 After leaving the first Lockleys address the next time she saw the accused was when they had nowhere to live and went to stay with the accused in Whyalla.27 SR, VS, D junior, L, M and Uncle Andy stayed with the accused and his partner Evelyn. The accused gave up his bedroom for VS and the two youngest children and Uncle Andy and the rest of them slept in the lounge room. The other bedroom was set up as a nursery because Evelyn was either pregnant or had had the baby and it had been taken away from her.28 42 There was an occasion during the stay at Whyalla when VS went out with Uncle Andy, the two youngest children and Evelyn. SR begged and begged to go with them because she did not want to be left alone with the accused, but VS said there were too many children already. The accused stayed home and played video games with D junior for a while. SR was in the accused’s room, but she could not recall why she was in there. The accused came into the room and asked her to perform oral sex on him, so she did. He ejaculated in her mouth, and she spat it out. She said she felt disgusted and ‘it felt like boogers in my mouth’. He pulled up his pants and as he got ready to leave D junior came into the room to ask him a question about the video game. This occurred in the middle of the day. They never spoke about it.29 After that incident and all of the others the accused would ignore her. That made her feel unwanted.30 The rest of the family came home around 4- 5pm and SR was in the accused’s room reading.31 43 She did not tell her mother what happened when she got home because that threat that she and her family would be killed was still playing in her mind. She believed he would carry out the threat because he had always been violent and out of control. She was very scared of him.32 44 There was another occasion of sexual abuse at Whyalla. Everyone was asleep and the accused had come into the lounge room where she was pretending to be asleep because she knew he would come in and ask her to perform oral sex on him.33 She said: 25 T 35-36. 26 T 36. 27 T 36. 28 T 37. 29 T 39-40. 30 T 42. 31 T 41. 32 T 42. 33 T 42-43. -- 11 of 42 -- [2024] SADC 110 10 …he kept shaking me and shaking me and shaking me and shaking me and just being like ‘wake up, wake up. I know you’re awake’ and then I just opened my eyes and went ‘All right’ and followed him to the toilet which was in the laundry.34 45 SR drew a floor plan of the house at Whyalla: Exhibit P2. 46 The last occasion of sexual abuse by the accused at Whyalla occurred on the day that the accused and VS had a fight, and they were ‘kicked out’. She could only recall the accused talking to her in the bedroom because all of the children were being rowdy, and he said he was going to deal with them. VS was in the kitchen with Uncle Andy and when VS got angry and yelled at the children, they went next door, and she was the only one left in the house. She did not go with the other children because she ‘didn’t like the people next door’. He took her into the bedroom and performed oral sex on her for the first and only time. He was licking her vagina, and it hurt. 35 47 The accused had closed the bedroom door, and he first made her perform oral sex on him when she was facing towards the door on her knees. He ejaculated in her mouth. He then stood up, asked her to stand up and get on the bed and then he took her pants off and performed oral sex on her. She was lying on the bed, and he spread her legs. He did not lick her vagina for very long. She thought he had heard someone call his name. He got up and told her to put her pants back on and that her punishment was over, and she could go and play now.36 48 SR could not recall any other details of her interactions with the accused on this occasion.37 She was in the bedroom with the accused for 10-15 minutes.38 She could not recall anything happening between her fellating the accused and him licking her vagina.39 Other than the three occasions she described in Whyalla she could not recall any other occasions or anything else occurring with the accused.40 49 The accused and VS had a violent altercation over dinner and VS and the rest of the family stayed the night at the next-door neighbour’s house. This was the same house in which the people lived whom SR did not like.41 The accused called the police, but she could not recall if they attended or if VS was arrested. They left Whyalla the next day and stayed at her grandfather’s house in Gawler. She had not seen or spoken to the accused since then.42 The family stayed for a few weeks until her mother was arrested for threatening to stab her grandfather. SR was then taken into residential foster care with her siblings.43 34 T 42, 38; T 43, 1-5. 35 T 46-47. 36 T 48-51. 37 T 79. 38 T 79. 39 T 82. 40 T 84. 41 T 53. 42 T 53-54. 43 T 57. -- 12 of 42 -- [2024] SADC 110 11 50 The first occasion of sexual abuse at Whyalla occurred early in their stay there and the last two occurred towards the end. Prior to moving to Whyalla, she had been attending school at Murray Bridge and living at either 8 Owl Drive or 9 Tussock Place.44 51 When in foster care, SR saw her siblings and also her mother on access visits.45 52 The first person to whom she disclosed the sexual abuse was her social worker, Annette. She liked Annette because she was nice, and she felt safe around her and could talk to her. She spoke to her about being bullied at school or if she was having trouble with her carers.46 SR explained the circumstances in which she came to make the disclosure: I woke up one morning and it had been playing on my mind and I needed to tell someone, in my head I was ‘I need to tell someone, I need to tell someone’. I was going to tell my foster carers, but I didn’t feel like I could talk to them, so I left, I up and left and I walked out and I walked all the way to the Blair Athol DCP office and I told her.47 53 SR had not arranged to see Annette but when she arrived, she asked the receptionist if she could speak with her.48 Annette then came out and took her into an interview room and asked her what was wrong. SR said she could not talk there and asked to go somewhere private, and they then went into a visitation room. SR gave this account of the disclosure she made: As best as I could recall, I had told her that my older brother had sexually abused me as – and that I wanted to talk to her about it, so I talked to her about it, and then she told me that she’s a mandated reporter and she would have to report this and so I said ‘Okay’.49 54 SR could not recall what else was said but ‘other things were said’. She was in the room with Annette for an hour.50 She thought they spoke about other things during that time. She explained: I’d just told her that he had sexually abused me, kind of gone into detail, like he’d made me perform oral sex on him, because she wanted to know, and then after that she’d told me that she was a mandate reporter. And she asked me if I wanted my mother to know or if I’d told my mother and I said ‘I’m not going to tell her, but you can tell her. I don’t care if she knows’. I had not told her. …I just said something along the lines of ‘He made me suck his penis’.51 44 T 56. 45 T 58. 46 T 59. 47 T 60, 6-12. 48 T 60. 49 T 61, 23-27. 50 T 61. 51 T 63, 7-14, 20-21. -- 13 of 42 -- [2024] SADC 110 12 55 They then spent the day together and Annette took her back to her residential care. SR said she did not know what gave her the courage to say something that day, but she just woke up and had to tell someone.52 56 SR drew a floor plan of the Lockleys address: Exhibit P3. 57 SR said that she could not recall the accused touching her in any other location than the bathrooms and bedrooms at the various addresses she described.53 Cross-examination 58 SR said she had a memory of the accused staying at Seaton for quite a while, but she could not put a time frame on it. Her evidence that it was a couple of months was just a guess.54 59 SR said that it had always been her memory of the first occasion that everyone was out in the backyard in the pool, and she was in her room. She was asked if she had ever told police that she was in her room asleep in the middle of the night when this incident of abuse started.55 SR agreed that she gave a statement to Detective Corfield on 4 November 2018 at her home in Strathalbyn and her stepmother was present. She signed that statement on 10 December 2018 and read it before signing it. She did not tell Detective Corfield that there was anything wrong in that statement.56 60 SR agreed that she told Detective Corfield the following about the first occasion of abuse that she could recall: Peter came into my bedroom one night when [M] and I were asleep. He woke me up and indicated for me to go with him. I did not know what it was about or why he wanted me to go with him. Everyone was in bed and I knew to be quiet so I followed him. He took me to the room in our house where he slept when he stayed over. He put the light on and sat down on the bed. I do not recall what he was wearing but he usually sleeps in boxers so I guess he would have had them on. He encouraged me to come over to where he was sat and he pulled out his thing, by “thing” I mean penis’.57 61 SR then said that the first occasion would have been what she put in her statement but because of the pressure of the court case it had slipped her mind.58 62 SR agreed that she had given five statements to the police and in none of those statements has she mentioned an occasion of sexual abuse when family 52 T 62. 53 T 85. 54 T 86-87. 55 T 87. 56 T 90-91. 57 T 92, 6-17. 58 T 92. -- 14 of 42 -- [2024] SADC 110 13 members were in a swimming pool. SR insisted that there had been an inflatable pool at the Seaton house and also at Murray Bridge.59 63 SR agreed that in a statement given to police on 13 September 2021, she said that ‘in the very first statement I provided to police in 2018 I told the police officer who took my statement that it was the bathroom and not the bedroom’.60 When it was put to her that she had agreed in evidence she told Detective Corfield on 4 November 2018 that the first occasion occurred in the bedroom she said that was not a lie, but she was ‘misremembering’. SR agreed that what she was saying in the statement given on 13 September 2021 was that Detective Corfield had incorrectly recorded bedroom instead of bathroom.61 64 When SR was asked whether she noticed the error when she read and signed her first statement she said: A I had actually crossed it out. There had been multiple things I had crossed out and had rewritten. … HER HONOUR Q When did you cross out ‘bedroom’ [SR] on the first statement, before or after – A When I didn’t – Q Sorry. A Before I signed it, I crossed it out – I was told to cross out whatever was wrong, whatever, you know, and then after that, they told me to sign it and that they would fix it. Q So on the statement that you signed, you had crossed out ‘bedroom’ before you signed it. A Yes there were multiple things that I had crossed out. Q And when you crossed out ‘bedroom’ did you write anything else above where you or near where you crossed it out or did you just cross it out. A I crossed it out and wrote ‘bathroom’.62 65 SR was asked if she also crossed out ‘sat down on the bed’ before she signed the statement and she said, ‘everything that I crossed out was before I signed it’.63 She said her original statements have crossing out on them.64 SR said she could not recall the circumstances in which she came to sign the statement she gave on 4 59 T 93-94. 60 T 98. 61 T 99-100. 62 T 100, 27-28, 32-38; T 101, 1-8. 63 T 101. 64 T 102. -- 15 of 42 -- [2024] SADC 110 14 November 2018 which had nothing crossed out in it.65 She said that there are two statements in existence, the one before her in evidence with her signature on it of 4 November 2018 which she signed on 10 December 2018 and an identical one signed by her but with crossing out by her in various parts of the statement. She could not say which one she signed first.66 66 SR said she told Detective Corfield on 4 November 2018 everything that she could remember about what happened with the accused at Whyalla. She could not recall crossing anything out in the statement about that. She agreed that in this statement she made no mention of the accused licking her vagina in Whyalla.67 67 SR agreed that she gave a second statement to Detective Corfield on 2 August 2019 and did not make any mention in that statement of the accused licking her vagina in Whyalla.68 68 SR agreed that she gave a third statement on 27 November 2020 and made no mention of the accused licking her vagina in Whyalla.69 SR agreed that in this statement she said: I can’t remember every time that Peter abused me but I remember some things about the times that he did. Like when he first started, around when I was eight years old, Peter would wake me up in the night and take me into another room. Sometimes it was the bathroom or toilet, somewhere that he could lock the door and not get caught.70 69 SR said she did not know if she was eight years old when the abuse started. She explained that when they went to Darwin, she was eight years old.71 She then said she was around eight years old when it started. She said that in her first statement she told police it started when she was about four to six years old. She was taken to her third statement and agreed that she said: In the very first statement I provided to police in 2018 I stated that I was around eight years old at the time the abuse began with Peter. When I think back I can’t remember exactly how old I was exactly or exactly where we were living when it began, I just remember being really young, I think maybe five years old.72 70 SR said that she knew for a fact it started at Seaton and so whatever age she was then was when it started.73 SR said that what she said in her first statement about being eight years old when the abuse started was wrong and her memory of her age at the time of giving evidence was correct.74 65 T 112-114. 66 T 115. 67 T 103. 68 T 104. 69 T 105-106. 70 T 106, 23-29. 71 T 107. 72 T 109, 25-31. 73 T 110. 74 T 111. -- 16 of 42 -- [2024] SADC 110 15 71 SR agreed that in evidence she had said that she could not recall exactly when it was that the accused started to ejaculate in her mouth. She denied that when she was giving her statement made on 4 November 2018, she told Detective Corfield, ‘He ejaculated a year after it started. I would spit it out’. SR said she would not have said that.75 72 SR agreed that in September 2022 she could not then recall the house in which she was living when the first occasion of abuse occurred. She agreed that she had said, ‘The incident I described to Brevet Corfield in that statement occurred. I believe that I was around eight years old at the time and this was at one of the Lockleys addresses.’76 SR said that to her knowledge the first occasion of abuse she could recall was at the Seaton address.77 73 SR agreed that the people living at the Seaton address included all of her siblings except C and the accused, her mother and her mother’s partner DE. DE’s brother would stay but did not live there. Friends of her mother’s and DE would often come over. The house was small with only three bedrooms and people were living on top of each other. There was one bathroom and a separate toilet.78 SR agreed that DE was very strict about the door to the girls’ room being open if there were any males in there. VS had a rule that the door to the girls’ room was open when they were asleep, but VS would shut her door.79 74 At this point in her evidence, SR became very unwell and medical evidence was provided to establish that she was suffering from morning sickness and could not continue to give evidence. An application was made for a mistrial on the basis that a delay in completing the complainant’s evidence would result in the trial miscarrying. The application was opposed. I refused the application, on the basis that an interruption to SR’s evidence would not create a miscarriage of justice. Her evidence resumed on 1 July 2024 after she had given birth to her child. 75 SR agreed that on 4 November 2018 she told Detective Corfield in relation to the trip to Whyalla: I would always try and share my mum’s bed. I would pretend to be scared to sleep on my own so I could sleep with her and it would keep me away from Peter.80 76 SR said that she would try to do this but most nights she was in the lounge room.81 77 SR said that it had always been her memory that the order of events on the occasion that the accused performed oral sex on her at Whyalla was that she 75 T 115 – 116. 76 T 118- 119. 77 T 119. 78 T 120-121. 79 T 124. 80 T 193, 36-38; T 194, 1. 81 T 194. -- 17 of 42 -- [2024] SADC 110 16 fellated him first and then he licked her vagina.82 She agreed that in her statement dated 13 September 2021 she said: Peter then told me to take my pants down and lay back on the bed, which I did. Peter knelt down on the floor, parted my legs and began licking me on the vagina. He did this for a little bit and then he told me to get up. I got up and he pulled me pants up. Peter then stood in front of me, pulled his pants down and made me suck his penis until he ejaculated in my mouth.83 78 SR said that her evidence on the sequence was correct and that she sometimes got a little mixed up.84 79 SR agreed that she could have been in Whyalla for eight days. She also agreed that the accused slept on a mattress in the lounge room with Evelyn the entire time they stayed there. SR said she was sometimes in the accused’s bedroom with VS, DE and M but other times she was in the lounge room. Uncle Andy slept on a couch in the lounge room.85 80 SR agreed that Uncle Andy had always been part of her life and lived with them at Seaton. She denied that he would sleep most nights in the girls’ room or in her bed. She denied being very attached to Uncle Andy but said she cared for him deeply.86 81 SR agreed that the lounge room at Whyalla was quite small.87 There were always two children in the lounge room, Uncle Andy on the couch and the accused and Evelyn on a mattress.88 82 SR agreed that the accused was an angry young man with anger management issues and the whole family knew about it and how he could fly off the handle.89 She said being asked to babysit the children might make him angry. SR agreed that if her mother left the house Uncle Andy would stay because the accused could not look after the children without getting upset. However, there were occasions when Uncle Andy went out with her mother.90 Uncle Andy was completely blind in one eye and had ten percent vision in the other. However, he was still able to look after the children a fair bit.91 82 T 194-195. 83 T 195, 9-16. 84 T 195. 85 T 197. 86 T 199. 87 T 199. 88 T 199-200. 89 T 200-201. 90 T 201. 91 T 212. -- 18 of 42 -- [2024] SADC 110 17 83 SR said that she was in a few foster homes when they were living in Darwin, but she was too scared to tell anyone at DCP in Darwin that her brother had sexually abused her. She was still afraid of him even though he was far away.92 84 SR recalled an occasion at Murray Bridge when the police came to her school to interview her, but she could not recall what that was about or when that was. She said there were so many assaults between VS and DE that she could not say whether the police attendance was the result of an assault she witnessed on 14 August 2014 at Owl Drive Murray Bridge.93 SR said there were occasions when she called 000 because of the assaults by VS and DE on each other.94 Whenever she spoke to police she did not tell them that her brother sexually abused her. She did not feel comfortable enough talking to them about that.95 85 SR said that on an access visit at McDonalds with her mother, her mother told her that she believed her allegations against the accused. SR agreed that she had never told police that her mother told her she believed her. She also agreed that in her statement to police dated 13 September 2021 she said: One day she got pissed off and told me that she didn’t believe Peter would have done it. I think she wanted me to bite back at her, or just argue, but I didn’t.96 86 It was put to SR that the accused never threatened her in any way, shape or form that if she told anyone he would kill her. She replied: A No, to my knowledge, what I remember is not that he would kill me, is that he would harm my younger sibling [L], because when I was younger, I was most protective of [L] because he was the baby, the youngest and Peter exploited that. Q Tell us exactly what he said about [L], what he’d do to [L]. A I – at this point in time I do not remember, but I remember him – I remember him threatening me, that he would harm [L]. That’s all I remember, is that there was a threat that he would harm [L]. Q Not that you would be killed and your family would be killed, but that he would harm [L]. A Yes.97 87 SR said she had told police that the accused threatened to harm [L], although she could not recall when she did that.98 92 T 205. 93 T 207. 94 T 208. 95 T 208-210. 96 T 218, 33-36; T 219. 97 T 221, 10-23. 98 T 221. -- 19 of 42 -- [2024] SADC 110 18 88 When it was put to her that the accused had not made her fellate him or licked her vagina or ‘done anything else of a sexual nature’ to her she said, ‘other than kissing, no’.99 Re-examination 89 SR said the kissing mainly occurred before fellatio but did not happen every time, only randomly. She was not aware of the accused kissing her on the occasion she described at Seaton. She could not recall it happening at any of the Lockley’s homes or in Whyalla. She recalled him kissing her but not where or when it happened.100 90 SR said she did not tell police about the sexual abuse by the accused because she was still afraid of the accused, and she was more focussed on talking to the police about her mother being assaulted.101 91 SR said she did not recall the accused ever threatening her, only [L], but she could not remember the specific words he spoke on the particular occasion.102 VS – mother of SR 92 VS died during the trial and could not give evidence. The prosecution filed an application for her affidavits dated 6 May 2019 and 7 September 2022 to be admitted pursuant to s 34KA EA. Mr Dawes for the accused did not object to the admission of those affidavits on the basis that the parties had agreed for certain parts to be redacted. I granted the application as I was satisfied that the criteria in s 34KA had been met. The affidavit of 6 May 2019 was marked Exhibit P4, and the affidavit of 7 September 2022 was marked Exhibit P5. 93 In summary, the evidence of VS was as follows: 1. VS is SR’s biological mother. SR is her fifth child still living. The accused is her eldest child. As at May 2019 she had not seen the accused for two years. The accused cannot contact her because there is an intervention order in respect of which she is the victim. The intervention order arose as a result of an incident in Whyalla when she took the children to visit him. 2. When SR was born, the accused was in foster care. He came back to live with her when SR was four or five years old and he was fourteen or fifteen years old. He then moved into a friend’s house when he was 16 years old. 3. VS, SR, D junior, M and Uncle Andy moved into 74 Matthews Avenue Seaton in 2008 when SR was five years old. SR started at Hendon Primary school when they were at this address. 99 T 222. 100 T 222. 101 T 223. 102 T 224. -- 20 of 42 -- [2024] SADC 110 19 4. Uncle Andy has always lived with VS. He is partially blind and she has always cared for him. He has helped her care for the children over the years. 5. Whilst living at Seaton, the accused stayed with them for a while, maybe a year. He would have been 18 years old. She could not recall the accused hurting the children or them complaining about it. He would babysit them when she was out. The accused shared a room with D junior. Uncle Andy slept on the lounge. SR and M shared a room and VS had her own room. When L was born on 18 November 2009, her partner DE moved in with them. The accused moved out just before L was born. After a while he visited every few months when he needed money, cigarettes or food. C came to live with VS at Seaton. 6. After four years, the family moved to 8 White Street Lockleys. Uncle Andy, C, SR, D junior, M and L were living there. DE would come and go. The children started at Lockleys primary school. After 18 months they moved to Darwin for six weeks and then returned to another place on Henley Beach Road, Lockleys. Whilst there the accused would come and stay for a while, off and on. After eight months the family moved to 8 Owl Drive Murray Bridge. Living there were Uncle Andy, C, SR, D junior and L. They were at this address for two years. SR went to Murray Bridge Primary School. The accused stayed with them for a couple of months. They then moved to 9 Tussock Place Murray Bridge. The accused would stay over for a couple of weeks at a time and would sleep in the lounge room on the sofa. 7. SR’s behaviour changed as she was older and the accused was around. She seemed to be more protective of the younger children and take them out to the river for a play to get out of the house. She was not allowed to take them to the river. 8. They left Murray Bridge in 2016 and VS, Uncle Andy and the four youngest children moved into her father’s house in Gawler West. The accused did not visit. The children went into foster care after a month. 9. None of her children ever complained to her about being assaulted sexually or physically by their siblings. 10. In 2015, VS took Uncle Andy, SR and her three youngest children to Whyalla to stay with the accused who was living there with his partner Evelyn. They stayed for a couple of weeks. The accused gave his spare bedroom to VS, D junior, L and Uncle Andy to sleep in. SR and M slept on a mattress in the lounge room. The accused and Evelyn stayed in their own room. The accused would stay up late playing video games in the lounge room. 11. The accused hated the fact that the children were all there. They left Whyalla because VS and the accused had an argument which turned physical. The accused grabbed her by the bag she was holding and lifted her off the ground. In turn she slapped him in the face. An intervention order was put on her so she could not contact the accused. She was granted bail and left on the bus with the children and Uncle Andy the next day. While she was in custody overnight the children and Uncle Andy stayed at the house next door to the accused. 94 The accused applied to adduce evidence pursuant to s 34KB EA. That section provides: 34KB—Credibility (1) This section applies if in prescribed proceedings— -- 21 of 42 -- [2024] SADC 110 20 (a) a statement not made in oral evidence in the proceedings (an out of court statement) is admitted as evidence of a matter stated; and (b) the maker of the out of court statement does not give oral evidence in connection with the subject matter of the statement. (2) In a case to which this section applies— (a) any evidence which (if the person who made the out of court statement had given such evidence) would have been admissible as relevant to the reliability of the statement and the person's credibility as a witness is so admissible in the proceedings; and (b) evidence may, with the court's leave, be given of any matter which (if the person who made the out of court statement had given such evidence) could have been put to the person in cross-examination as relevant to the reliability of the statement and the person's credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and (c) evidence tending to prove that the person who made the out of court statement made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that the person contradicted himself or herself. 95 Pursuant to s 34KB (1) (a) and (b) I permitted the tender of evidence relevant to VS’ credibility and reliability. That evidence was comprised of business records of SAPOL as follows: 1. The offender history of VS, dated 29 June 2023 including prior convictions for dishonesty offences, false report to police103 and common assault104: Exhibit D8. 2. Apprehension report and detailed occurrence report relating to the arrest of VS on 21 July 2015 at Whyalla: Exhibit D9. 3. An intervention order issued on 8 September 2015 at Murray Bridge against VS in respect of the accused, the protected person: Exhibit D10. 4. Detailed occurrence report regarding an allegation made by VS that on 23 November 2008 she was assaulted on a bus on Glen Osmond Road, Eastwood, South Australia: Exhibit D11. 5. Apprehension report and detailed occurrence report 10 December 2010 regarding a false report to police by VS on that date that she was the victim of an aggravated robbery by her former partner DE. VS subsequently admitted that she had made up the allegation: Exhibit D12. 6. Police incident report and statement of VS dated 26 June 2014 regarding an allegation by VS that she had been the victim of an assault and robbery by four unidentified men. VS was subsequently spoken to on 4 July 2014 and advised police she was drunk and could not recall what happened: Exhibit D13. 103 Referable to D12. 104 Referable to D9. -- 22 of 42 -- [2024] SADC 110 21 Annette Maree 96 Ms Maree was previously employed by the Department of Child Protection (DCP). In 2017 she was a social worker in the reunification team at Blair Athol. Her role was to work with families and children who had been separated and support them to come together if that was appropriate.105 97 From around 2016, Ms Maree was SR’s social worker and worked with her and her family to assess reunification.106 She developed a good relationship with SR and would help her with school and spent time with her.107 SR would discuss issues she had at school and her siblings, her mother and father. Ms Maree considered that she had a good rapport with SR.108 98 In July 2017, around 8.45am, she was at work and was told that SR was at the office and waiting to see her. She went and spoke with SR who told her she wanted to speak to her so they went into a private room. Ms Maree said: …she disclosed that she had been – she actually said ‘sexually harassed’ and I asked her if she could explain to me what that meant, and she said that, you know, ‘My brother, Peter, he made me suck his dick’, then she took a moment and then she said ‘like a lot’.109 99 SR normally had a very bubbly personality but, on this day, she was a bit quiet and withdrawn, hanging her head and not smiling. When she made the disclosure, she was really anxious and struggled to say what she needed to say. Ms Maree said she needed to encourage her and told her that SR could tell her whatever she needed to and that this was her safe place.110 100 Ms Maree acknowledged what SR told her and then said that she would support her through it but could not ask her any more questions and that if it was okay with her, she would be contacting the police. Ms Maree had just completed inter-agency training with SAPOL and had been trained on the process when a disclosure of this type was made.111 101 After the disclosure, Ms Maree asked for permission to spend time with SR and they spent a few more hours together, including going shopping in Adelaide.112 105 T 232. 106 T 232-233. 107 T 236. 108 T 237. 109 T 233, 33-38. 110 T 234. 111 T 235. 112 T 238, -- 23 of 42 -- [2024] SADC 110 22 Cross-examination 102 Ms Maree was taken to DCP notes and refreshed her memory that the date of the disclosure by SR was 7 July 2017.113 Ms Maree agreed that when she told SR she would report the matter to police, SR told her she expected that.114 103 Ms Maree continued to work with SR until October 2017 when she transferred from Blair Athol.115 104 Ms Maree agreed that she had recorded in the DCP notes that in the week of 7 July 2017 (a Friday) SR had told her that she had begun to see a woman in mirrors with long black hair and dark eyes and that was frightening her. She agreed this must have been said to her. Detective Brevet Sergeant Corfield 105 Detective Corfield was produced for cross-examination. She was not examined. 106 In July 2017, Detective Corfield was stationed in Murray Bridge CIB. On 30 October 2018 she was allocated the investigation into SR’s allegations. Another police officer had been allocated the investigation in July 2017, but nothing had been done. Accordingly, a statement from SR needed to be taken urgently.116 107 She took a statement from SR on 4 November 2018 in a park in Strathalbyn. She met her there with her stepmother. They met in a park because SR did not have a high opinion of police and she did not want to go to a police station. The statement taking process took some time and she understood that it was important to obtain as much detail as possible from SR regarding the allegations.117 108 Detective Corfield asked SR to tell her everything she could about what it was she had come there to talk about and then she recorded key points from that narrative in columns. Once the narrative had been given, she returned to the topics to explore them and take a verbatim account.118 109 SR told her about the first occasion of sexual abuse that she could recall. SR said ‘I was asleep, [M] was asleep. Went to room in house where he stayed. Lights on, he sat on a bed’. SR did not say that the first occasion occurred in a bathroom or that family members were outside swimming in a pool. If she had said those things, Detective Corfield would have made a note of it. The account given by SR of the first occasion of abuse that she could recall went into her first statement and a facts of charge document following the accused’s arrest.119 113 T 240. 114 T 241. 115 T 242. 116 T 246-248. 117 T 250-251. 118 T 252. 119 T 252. -- 24 of 42 -- [2024] SADC 110 23 110 During the first statement taking process, SR said that the sexual abuse occurred over a period of two years.120 111 Detective Corfield made several appointments to meet VS, but she did not attend and could not be contacted.121 112 SR never told Detective Corfield that the accused had threatened to harm her brother L if she told anyone about the abuse.122 113 Detective Corfield took a second statement on 2 August 2019 which was signed on 20 May 2020.123 The accused’s record of interview. 114 The accused was interviewed on 14 June 2019. The audio-visual record of that interview was tendered: Exhibit P6. The transcript of the interview was marked for identification: MFI P6A. At the outset of the interview, the accused was told that he was being arrested for persistent sexual abuse of a child. When asked if he understood he exclaimed ‘what!!!’ and said, ‘I haven’t sexually abused no one!’. When he was cautioned and asked if he understood he said, ‘I understand that I’m fucking screwed…I’ve done nothing wrong and I’m gonna fucking get pegged to the wall for nothing I’ve even done.’. 115 The accused was told that the allegation was that he had persistently sexually abused SR between 2011 and 2015. However, instead of then telling the accused the particulars of that alleged sexual abuse so he could respond, he was asked, ‘What can you tell me about that Peter’. The accused responded: That’s my sister for one, and 2011 to 2015 I wasn’t living in the same house as [SR], so. At that point in time me and my mum had a sordid history, my mum is [VS]. We have a sordid history which includes violence towards each other me and my mum and um, I can guarantee you between 2011 and 2015, I wasn’t living with mum at the time because I was constantly being kicked out. She would call me back and then kick me out and then I would have nowhere to go, so then I would go to a place called Vinnie’s…a men’s shelter in Adelaide, Whitmore Square there.’124 116 The accused said the times he stayed at Vinnie’s would be documented. The balance of the interview was occupied by the accused explaining who the other members of his family were, his relationship with VS, where he lived, and where he would stay when he was allowed back into the family home. He said he would be sleeping in a house with four or five other adults – NE, DE, Uncle Andy and VS. The accused said he had been in Whyalla for the last seven years. 120 T 253-254. 121 T 254. 122 T 256. 123 T 256. 124 A. 94, 96. -- 25 of 42 -- [2024] SADC 110 24 117 The accused said he was kicked out of a house at Gawler, that he had his twenty first birthday at the Seaton address over nine years ago and stayed in the house at Murray Bridge for two to three weeks. 118 The accused said he would look after the children when his mother was on a bender but he was not looking after them by himself; Uncle Andy or NE were always there. Despite the accused then asking if the allegations of persistent sexual abuse occurred when one of the other four adults was present, he was not given any detail regarding the nature of the sexual acts, the frequency or location. 119 The accused said that SR came to live with him between a year and three years ago, before she was ‘taken’ and then went to her father’s place. She told him that she was living in a caravan park behind a skate park in Gawler and she was getting sexually assaulted by someone. 120 The accused said that SR, VS, L, M, D junior, and Uncle Andy stayed with him in Whyalla for less than 72 hours. His son had just been born and when he brought him home from the hospital, VS was paralytic and tried to take his son from him. He punched her in the head and police came and told her to leave. She and the rest of the family stayed next door at 28 Loring Street and caught a bus the next day. Agreed facts 121 The following facts were agreed: Birthdates 1. SLR was born on 8 May 2003 to mother VD. The birth certificate does not state a father. Record of Interview 2. On 14 June 2019 Mr Peter Schmidt attended at the Whyalla Police Station and participated in a record of interview with members of South Australian Police Brevet Sergeant Kerry-Anne Griffiths and Senior Constable Fiona Andrew. 3. A copy of that record of interview was burnt to a disc and entered into the Police Property Management System under the unique identifier 19/B64531. Lines of Enquiry 4. On Monday 12 February 2021 Brevet Sergeant Kerry-Anne Griffiths spoke with [NE] by phone about whether he would be willing to provide a statement to police. [NE] declined to provide a statement. 5. On Wednesday 31 August 2022 Brevet Sergeant Kerry-Anne Griffiths spoke with Andrew Thomas by phone about whether he would be willing to provide a statement to police. Mr Thomas stated he was not willing to provide a statement and he did not want to get involved. -- 26 of 42 -- [2024] SADC 110 25 6. On Thursday 20 July 2023 Brevet Sergeant Kerry-Anne Griffiths spoke with [D junior] by phone. [D junior] stated he did not want to give a statement in relation to this matter. Schooling Records 7. Department of Education and Children’s Services records for the complainant SLR record Ms R attending the following schools: SCHOOL GRADE ADMISSION LEAVING Hendon Primary School Reception 21/7/2008 24/11/2008 Christies Down Primary School Reception 25/11/2008 12/03/2009 Hendon Primary School Reception- Year 3 13/03/2009 06/03/2012 Lockley’s North Primary School Year 3-4 07/03/2012 20/06/2013 Murray Bridge North Primary School Year 7 31/07/2013 16/05/2016 Gawler East Primary School Year 7 17/05/2016 16/08/2016 Northfield Primary School Year 7 17/08/2016 16/12/2016 Roma Mitchell Secondary College Year 8-9 30/01/2017 30/04/2018 Eastern Fleurieu R-12 School Year 9-12 30/04/2018 10/12/2021 Police Records 8. On 21 July 2015 police attended the accused address at 26 Loring Street Whyalla Stuart and arrested [VS] after receiving a report that she had assaulted the accused. 9. On 14 August 2014 police attended the Murray Bridge North Primary School and interviewed SR in relation to an alleged assault committed on VS by DE Snr on 31 July 2014. 10. On 30 March 2016 police officer Cleve Daniels attended at Murray Bridge North Primary School and interviewed SR in relation to an alleged assault committed on VS. -- 27 of 42 -- [2024] SADC 110 26 Evidence of Investigating Officer Kerry-Anne Griffiths 11. Investigating Officer Kerry-Anne Griffiths passed away on 8 January 2024. 12. All hard copy and electronic files of Kerry-Anne Griffiths were reviewed for the purposes of identifying any statements of the complainant containing mark-ups or corrections. 13. No documents with mark-ups or corrections were located. 14. [M] has never been interviewed by police. 15. No records have been obtained from Vinnie’s in Whitmore Square relating to Peter Schmidt. Defence case 122 The accused did not give evidence. As part of the defence case the statement of Probationary Constable Jonathon Harris dated 31 July 2014 was tendered: Exhibit D14. That statement detailed his attendance at Owl Drive, Murray Bridge in relation to a disturbance. VS was found lying on the floor surrounding by her children, SR, D junior, M and L. SR gave an account to PC Harris of DE throwing VS headfirst into a wall and then onto floor of lounge room. DE was arrested and taken to police setation to be charged. 123 A further fact was agreed in the defence case: Exhibit D15. Officer Corfield’s notes of the conversation with [SR] on 4 November 2018 reflect SR saying ‘he ejaculated a year after it started – I would spit it out’ Closing submissions Prosecution 124 At the outset of her address, Ms McKendrick conceded that there was no evidence to support particular (b), namely that the accused had touched SR’s vagina and that this unlawful sexual act had not been proved. She conceded that, consistent with R v M, AS (2013) 118 SASR 160 I could use the failure to mention a particularised sexual act as a matter relevant to SR’s credibility and reliability. 125 It was noted that the only issue in dispute was whether the unlawful sexual acts in fact occurred and the other elements had been proved beyond reasonable doubt. 126 Ms McKendrick said that I should extend some latitude to SR in my assessment of her evidence. She referred me to the observation of Kourakis CJ in DES v The Queen [2020] SASCFC 32: Inconsistencies in the testimony of a child on the timing, sequence, placement and detail of offending are commonly encountered in trials of offences of child sexual abuse. That is not surprising. The circumstances which strike children as significant, and, therefore, memorable, are not the same as those which are important from the perspective of adults. A jury, with the combined life experience of its members, is well equipped to decide -- 28 of 42 -- [2024] SADC 110 27 whether or not there are explanations for the inconsistencies in the testimony of a child that do not detract from the reliability of his or her account of the offending.125 127 Ms McKendrick emphasised the dysfunctional and unstable childhood experienced by SR, particularly the trauma and upheaval of constantly moving house, witnessing domestic violence and being subjected to violence and neglect by her own mother. 128 Ms McKendrick urged me to characterise the inconsistencies in SR’s account as being a function of her age and upbringing. SR was consistent in her account of the sexual abuse she experienced most frequently – being made to perform fellatio on the accused. The proved prior inconsistent statement regarding the location of the first occasion she could recall could be attributed to the frequency with which the abuse was occurring. 129 Ms McKendrick conceded that SR’s evidence of crossing things out in her statement must be wrong and that I will have to consider how this issue affects her reliability and credibility. When SR described the offending occurring at the Seaton address when she was at Hendon Primary School, the agreed facts establish that this was when she was aged five to eight years. When SR described offending occurring at White Avenue Lockleys, the agreed facts establish that SR was going to Lockley’s North Primary School between 7 March 2012 and 20 June 2013 when she was between the ages of eight and ten. 130 Although the offending was, on its face, very brazen, given the number of people living in each house at any one time, the household was always chaotic, and VS was not an attentive parent. The other children were quite young. Uncle Andy was partially blind. In relation to the escalation of the offending that occurred at Whyalla, and which was plainly attended by an elevated degree of risk of detection, Ms McKendrick said that the accused was, by that time, emboldened by the pattern of abuse he had inflicted without detection. 131 Ms McKendrick suggested that the omission to describe the one occasion of cunnilingus in her first statement was likely a consequence of SR’s mistrust of the police or her failure to recall a single incident when compared with a pattern of sexual abuse involving fellatio. Ms McKendrick accepted that the failure to mention this single and different sexual act was a matter I would need to consider in my evaluation of SR’s credibility and reliability. 132 Ms McKendrick then dealt with the complaint evidence. She said that it explained how the offending conduct came to light and demonstrated consistency in SR’s account of the unlawful sexual acts of fellatio. SR complained to a person she might be expected to complain - her social worker with whom she had a good rapport and relationship. Given her family circumstances and dynamic and her distrust of police, it is little wonder she did not complain to her mother or the police. By this time, the threat to kill L was not operative. Ms McKendrick said 125 [3]. -- 29 of 42 -- [2024] SADC 110 28 that the failure to mention the other sexual acts was explicable by reason of Ms Maree’s immediate response to the disclosure of repeated acts of fellatio. It was clear that Ms Maree terminated any further discussion on the topic, for reasons which she explained, and which were understandable. 133 It was argued that SR’s account was clearly not rehearsed, and she did not attempt to reconstruct events. There was no doubt that the opportunity existed for the accused to offend in the way described and the accused admitted in his record of interview that there were periods when he was living with SR and the rest of the family. 134 The principal relevance of the evidence of VS was to establish the opportunity to offend and that, whatever criticisms may be levelled at her credibility and reliability, this aspect of her evidence was supported in many respects by the accused’s interview. 135 In closing, Ms McKendrick urged me to find that SR was a compelling and credible witness and that her evidence established beyond reasonable doubt that the accused committed the unlawful sexual acts particularised in (a), (c) and (d). Defence submissions 136 Mr Dawes said that SR was neither credible nor reliable. Her evidence was riddled with inconsistencies and did not have the ring of truth to it. There were no credible explanations for the multitude of inconsistencies. Mr Dawes provided a series of helpful charts setting out the proved prior inconsistent statements of SR, the differences between the prosecution opening and the evidence of SR and a comparison of the evidence of SR and the accused’s answer in his record of interview on the topic of the length of time he spent in any particular house. 137 Mr Dawes relied upon the decision in R v M, AS (2013) 118 SASR 160 and the authorities to which the Court referred when setting out the differences between the prosecution opening and the evidence. In summary they were: 1. In opening it was said that the first occasion of sexual abuse that SR could recall occurred when she and M were asleep in bed and the accused woke her up and directed her to another room where he encouraged her to fellate him. In evidence SR said this occurred during the day, she was taken to the bathroom and the other family members were in the pool. 2. In opening it was said that SR could not recall if the accused ejaculated on the first occasion of abuse that she could recall. In evidence SR said she was pretty sure he ejaculated into the toilet. 3. In opening it was said that the offending occurred at the various homes until it came to the final location, the accused’s home in Whyalla. SR did not say that there was any sexual act at Henley Beach Road, Lockleys, Darwin or either of the Murray Bridge houses. 4. In opening it was said that in Whyalla the accused made D stay in the lounge room and took SR into his bedroom and forced her to fellate him. He ejaculated and was pulling -- 30 of 42 -- [2024] SADC 110 29 up his pants when D junior walked into the room. In evidence SR said the accused was playing video games with D junior and she was in his room. The accused came in and made her perform fellatio on her. She spat it out, got up sat on the bed and the accused got up to leave and that is when D junior came in the room. 5. In opening it was said that the final occasion of abuse at Whyalla occurred when SR was in trouble for something, and she ended up alone in the bedroom with the accused. He told her to pull down her pants and lie on the bed. He kissed her using his tongue, placed his hand down her pants, touched her over the top of her vagina and clitoris but did not penetrate her. He stopped and she got up. He pulled down his pants and forced her to fellate him until he ejaculated. He told her that the next time they were properly alone they were going to have sex and told her to wait ten minutes before leaving the room. In evidence she said the correct order of events was that the accused took her into the bedroom, made her fellate him, ejaculated and then he performed oral sex on her for the first and only time. She did not say he kissed her or touched her vagina or said to her that the next time they were properly alone they would have sex. She said he told her that she could put her pants back on and her punishment was over, and she could go and play now. 138 Mr Dawes said SR did not come up to proof of the particular that alleged kissing her with an open mouth. The only evidence on the topic of kiss was that, when asked if there were any other sexual acts performed by the accused, she said, ‘other than kissing, no’. 139 Mr Dawes argued that the number and nature of the differences between the prosecution opening, and particularised sexual acts and SR’s evidence should lead me to have real doubts about her credibility and reliability. Even after accounting for her age and social circumstances, the inconsistencies were fundamental and not explained. 140 Mr Dawes then focussed on the proved prior inconsistent statements or inconsistencies between SR’s evidence and agreed facts and the explanations for them: 1. SR said her memory of the first occasion of abuse she could recall had always been that the rest of the family were in the pool and she was in her room and the accused asked her to follow him to the bathroom. On 4 November 2018, SR told Detective Corfield that the accused came into her bedroom one night when she and M were asleep. Everyone was in bed. He took her to the room in which he was sleeping, put a light on and made her fellate him. When taken to this statement, SR said what she told police was correct and her evidence was incorrect. She had never given the account she gave in evidence to police. In her third statement to police, she said he came into the room she shared with her sister and woke her up and took her to the bathroom. SR’s explanation for the bedroom/bathroom inconsistency was that Detective Corfield had erroneously recorded bedroom instead of bathroom and SR had crossed out ‘bedroom’ and ‘sat on the bed’ on the statement and written ‘bathroom’ before she signed the statement. It was an agreed fact that no statements containing mark-ups or corrections have been located by SAPOL. Detective Corfield gave evidence that SR told her it occurred in the accused’s bedroom. 2. SR said that on the first occasion of abuse she could recall the boys had gone to DE’s house. She had never said this to the police before. -- 31 of 42 -- [2024] SADC 110 30 3. SR said that she amended multiple statements by crossing things out. The agreed facts establish that no statements containing corrections made by SR have been located. 4. SR omitted to mention in the statements dated 4 November 2018, 2 August 2019, or 27 November 2020 that the accused had licked her vagina at Whyalla. 5. In her 4 November 2019 and 27 November 2020 statements, SR said she was 8 years old or around 8 years old when the abuse started. In evidence SR said this was wrong. In her fourth statement dated 13 September 2021 she told police she was ‘maybe’ five years old. In evidence she said her memory had improved over time. 6. SR said in evidence the first occasion of abuse she could recall occurred at Seaton. She said this in her first statement to police on 4 November 2018. In her statement on 3 September 2022, she told police she could not recall the exact house they were living in when the accused first abused her and that the first occasion occurred at one of the Lockley’s addresses. SR explained in evidence that she said this because it was to the best of her knowledge. 7. In evidence, SR said she could not recall when the accused started to ejaculate in her mouth. SR denied she told Detective Corfield that the accused ejaculated a year after it started, and she would spit it out. 8. According to the Information the period of sexual abuse was 7 May 2008 and 22 July 2015 between the ages of 5 and 12. SR told Detective Corfield that the abuse occurred over a period of two years by her 23-year-old brother. 9. SR gave evidence that VS and the two youngest children slept in the accused’s bedroom in Whyalla. SR, Uncle Andy, the accused, Evelyn and D junior slept in the lounge room. In her 4 November 2018 statement she told Detective Corfield that she would always try and share her mother’s bed. She would pretend to be scared to sleep on her own so she could sleep with VS and keep away from the accused. 10. SR said that it had always been her memory that the order of events when the accused performed cunnilingus on her was that she fellated him first and then he performed cunnilingus on her. On 13 September 2021 she told police that the accused performed cunnilingus on her first and then made her fellate him. SR said the order of events she gave in evidence was correct. 11. SR said she was at Northfield Primary School when she made the complaint to Ms Maree. Ms Maree’s evidence establishes that the complaint was made on 7 July 2017. The agreed facts establish that SR was at Roma Mitchell Secondary College in July 2017. 12. SR gave evidence that on an occasion at McDonalds, VS told her she believed SR’s allegation that the accused had sexually abused her. SR denied that her mother told her she did not believe the accused would have done it. SR agreed she told police on 13 September 2021 that one day VS told her she did not believe the accused would have done it. SR agreed that there is no mention in any of her five statements that VS told her she believed the allegations. 13. SR said in evidence that the accused threatened her and her family and said he would kill them if she disclosed the abuse. She later said that the threat was not that the accused would kill her but that he would harm L. She then said that there was no threat that she or her family would be killed. SR said she told police that the accused had -- 32 of 42 -- [2024] SADC 110 31 threatened to harm L. Detective Corfield gave evidence that SR did not tell police of a threat made by the accused to harm L. 141 Mr Dawes argued that the accused’s denials in the record of interview should be given more weight because he was not afforded the opportunity of particulars or details of the allegations. Accordingly, when he volunteered information, it was without any knowledge of whether that might be incriminating, for example, because he was admitting being present at a time when an alleged sexual act took place. The motive for a false complaint raised by the accused in his interview was evidence in the prosecution case and there was no evidence of any inquiries being made into the allegation that SR had posted messages on Facebook consistent with her having an animosity towards the accused. 142 Mr Dawes said the evidence of SR, the accused in his interview and VS varied regarding the length of time he stayed at each house. 1. SR said the accused may have stayed as little as a week at Seaton; the accused said it was three days; VS said it was a year. 2. SR said the accused never attended the Henley Beach Road, Lockley’s house; VS said he stayed there on and off; the accused was not asked about this house in the interview. 3. SR said the accused stayed at 8 White Avenue Lockleys for a couple of weeks; the accused was not asked about this, and VS makes no mention of this. 4. SR said the accused never lived at either house in Murray Bridge and she could not recall him visiting but did see him at her mother’s friend’s house; the accused said he lived in his mother’s friend’s house and VS said he stayed the first Murray Bridge house for a while and stayed over at the second house for a couple of weeks. 5. SR said the family could have stayed for as little as 8 days in Whyalla; the accused said it was 72 hours; VS said it was a couple of weeks. 143 Mr Dawes emphasised the fact that no other family member was called to give evidence at the trial. Accordingly, there was no credible or reliable evidence supporting SR’s account on crucial matters such as living and sleeping arrangements. 144 Mr Dawes then turned to the issue of significant forensic disadvantage. The trial proceeded 16 years after the offending was alleged to have commenced. The prosecution did not lead evidence of rental or housing records, school records, or records of attendance at Vinnie’s in Whitmore Square. There were matters that could not be put to VS including the issue of whether she had a policy of keeping her bedroom door open, so she had a line of sight to the girls’ bedroom and the layout and size of each house in which they lived. 145 Mr Dawes said I should be cautious about accepting anything in VS’s sworn statements that is not otherwise corroborated by independent and reliable evidence. -- 33 of 42 -- [2024] SADC 110 32 146 Mr Dawes said that it was abundantly clear that the accused had no forewarning of his arrest or the allegations. He had no time to plan a false story to meet the allegations. He volunteered information which revealed he had the opportunity to commit the offence. He was honest about his relationship with his mother and his own shortcomings, particularly with respect to his anger management issues and violence towards his mother. Mr Dawes said that I could not reject the accused’s denials as not reasonably possibly true. 147 On the topic of complaint evidence, Mr Dawes referred me to Ferguson v The King [2024] SASCA 63 and counselled me against taking into account any evidence of SR’s distress at the time she made the complaint. As the complaint was made some two years after the alleged offending ceased, there was an insufficient temporal connection such that the distress could be used to bolster SR’s credibility. Mr Dawes pointed to all of the opportunities that SR had to complain – to the police, to DCP in Darwin, to Uncle Andy and said I should reject her explanations for not complaining to any of those persons as implausible. Findings of fact on undisputed matters 148 I find the facts in the agreed facts (P7 and D15) proved. 149 I make the following findings of fact on unchallenged or undisputed evidence: 1. The accused was born 13 June 1989. His mother is VS and his siblings SR, M, L, A, D junior and C. 2. The accused was an adult and SR a child during the period of the alleged offending. 3. The accused was in a relationship with SR during the period of the alleged offending, namely a sibling relationship. 4. VS died on 30 April 2024. 5. VS committed the offences recorded on P8 on the dates recorded therein. 6. On 10 December 2010 VS made a false report to police when she alleged that DE had pushed her to the ground, stomped on her head and stolen her wallet. 7. On 8 September 2015 the Murray Bridge Magistrates Court confirmed an intervention order served on VS on 21 July 2015 in favour of the accused as the protected person following VS’ arrest by police on 21 July 2015 at the accused’s home in Whyalla for an assault upon the accused. Preliminary observations Significant forensic disadvantage 150 In evaluating the evidence in the prosecution case, I have considered the question of forensic disadvantage. Although s 34CB EA does not apply to a trial by Judge alone, the question must still be considered if the circumstances warrant it. -- 34 of 42 -- [2024] SADC 110 33 151 The issue of significant forensic disadvantage as referred to in s 34CB of the EA was considered by the Court of Appeal in R v Cassebohm,126 R v Maiolo (No 2),127 R v W, PK128 and in R v R, PA.129 In R v Cassebohm, Doyle CJ 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. 152 These factors reduce the accused’s ‘ability to effectively conduct his case including to cross-examine the prosecution witnesses in a way so as to cast doubt upon issues of credibility and reliability.’ 153 I accept that in this case the accused has suffered a significant forensic disadvantage by reason of the death of VS and the absence of any records relating to living and housing arrangements for VS and her family during the period of the alleged offending. Such evidence is likely to have assisted the accused defend the charge as it bears on the accuracy of SR’s account of the location and circumstances of the offending. To a lesser degree, I consider that the absence of evidence from D junior, NE, Uncle Andy, DE and M (all occupants of the houses in which the accused, on his own admission, stayed for periods of time) has caused him a forensic disadvantage. No criticism can be levelled at the police for the non- attendance of any of the witnesses, other than M.130 154 On SR’s account, there were around 8 or 9 people living in a two- or three- bedroom home at the time that the offending is alleged to have occurred. Evidence from the other occupants of the house is likely to have assisted the accused to defend the charge as it bears on the accuracy and credibility of SR’s account of the location and circumstances of the alleged offending and the opportunity that existed for the accused to commit this offence without detection. Complaint evidence 155 This evidence was admitted pursuant to s 34M EA. Although section 34M (4) does not apply in a trial by Judge alone, I direct myself that the limited purposes for which that evidence may be used is to explain how the allegations came to light and to demonstrate consistency of conduct of SR such that it buttresses her credibility because of the circumstances in which she made the complaint and its content and any consistency between it and her evidence about the relevant events. 156 I accept that there were a number of opportunities for SR to make a complaint to a person in authority prior to the complaint to Ms Maree. I do not consider that VS was a person to whom it would be reasonable for SR to complain. She was a mother in name only and in reality, a derelict, neglectful, drug and alcohol addicted 126 (2011) 109 SASR 465. 127 (2013) 117 SASR 1. 128 [2016] SASCFC 5. 129 [2019] SASCFC 19. 130 No evidence was led regarding any attempt to obtain a statement from DE. The agreed facts reveal that M was never interviewed by police but no explanation was provided. -- 35 of 42 -- [2024] SADC 110 34 woman who cared so little and so badly for her children they were all taken from her and put into state care. 157 I consider it plausible that SR may have distrusted police as a result of her upbringing, and I accept her evidence regarding the reasons she did not complain to police when she spoke with them about domestic violence reports relating to her mother. 158 For reasons I will detail in due course, I do not accept SR’s account of the threat made to her by the accused. Accordingly, I reject her evidence that this was the reason she did not complain at an earlier time. However, as I have limited information regarding the circumstances of her foster care in Darwin or in Adelaide prior to her complaint to Ms Maree, I am not prepared to find that Ms Maree, a social worker with whom she had developed a relationship and rapport, was not a person to whom SR could reasonably be expected to complain. The timing of the complaint by SR to Ms Maree and her reasons for making a complaint to her demonstrate some consistency of conduct. It is reasonable to expect that SR would have confided in Ms Maree after their relationship had been established. 159 The content of the complaint is partially consistent with SR’s evidence in so far as she referred to the multiple acts of fellatio. I accept the evidence of SR and Ms Maree that any further discussion or conversation was effectively terminated by Ms Maree. I make no criticism of Ms Maree for that as it accorded with her training. However, it leaves me in a position where I am unable to find that the content of the complaint buttresses SR’s account of the entirety of the offending given the lack of detail regarding circumstance, location, and any other sexual acts. Accordingly, whilst of some probative value for consistency purposes, I am not able to accord significant weight to the terms of the complaint. Assessment of witnesses and the accused’s record of interview Annette Maree 160 Ms Maree was a thoughtful witness who gave her evidence in a careful and considered manner. There was no real challenge to any aspect of her evidence. Her memory was refreshed from contemporaneous records she had made whilst employed with DCP. I accept her account of the circumstances in which SR made the complaint and the terms of the complaint. I will not use her evidence of SR’s demeanour when making the complaint as evidence bolstering SR’s credibility. Detective Corfield 161 The evidence of Detective Corfield was elicited in cross-examination. Her evidence related to the circumstances of her meeting with SR and the taking of her first statement. Where the evidence of SR as to what she told Detective Corfield or the markings she made to the statement conflicts with that of Detective Corfield, I prefer and accept Detective Corfield’s account and reject that of SR. Detective Corfield made contemporaneous notes and her account on those topics is supported by the agreed facts. I am satisfied that SR made to Detective Corfield the prior -- 36 of 42 -- [2024] SADC 110 35 inconsistent statements (by omission or commission) about which she was cross- examined. VS 162 As VS did not give evidence in the witness box, there was no opportunity for her to be cross-examined or her demeanour evaluated. I have had regard to the evidence tendered for the purpose of undermining her reliability and credibility. I am not prepared to place any weight on D 11 and D 13 other than as evidence supporting SR’s account that her mother was an alcoholic. I consider that D9 and D10 support the accused’s account in his interview of his mother’s behaviour towards him and that the events of 21 July 2015 resulted in SR and the family leaving his house and the accused not seeing his mother again. D9 and D10 establish the unreliability of VS’ assertion in P4 that she was the protected person (victim) in the intervention order. However, I note that VS subsequently corrected the position in P5. 163 I have considered the contents of D8, and I accept that VS has a history of dishonesty offences and in particular the offence of making a false report to police, matters which are capable of affecting her credibility. 164 D 14 is evidence supporting SR’s account that VS was the victim of domestic violence at the hands of DE and that SR witnessed that. It is also evidence of an occasion when SR spoke with police and had an opportunity to complain about the accused’s alleged offending. It is also evidence supporting the evidence of VS, SR and the accused that Uncle Andy lived with the family. 165 I have approached the evidence of VS with caution given the limitations inherent in the form in which it was adduced and the fact it has not been tested. I also take into account the evidence which I consider adversely affects VS’ credibility in a general sense. I am prepared to accept her evidence on those topics supported by other evidence I find to be reliable and credible. It follows that I place little weight upon her evidence of the periods during which the accused lived or stayed at any of the homes in which she and the family resided. I accept her evidence that SR did not complain to her about being sexually abused. I place no weight on her evidence of SR’s behaviour changing as she was older, and the accused was around. It is an insufficient and unsatisfactory evidentiary foundation from which to infer that any such behaviour supports SR’s account of being sexually abused by the accused and in any event, SR said the accused did not stay with the family when they lived in Murray Bridge. 166 Where there is a conflict between the evidence of VS and the accused’s answers in the record of interview regarding the houses at which the accused visited or stayed, I am unable to reject the accused’s account as not reasonably possibly true. -- 37 of 42 -- [2024] SADC 110 36 SR 167 SR was an articulate and engaging witness. Her demeanour and presentation belied the appalling childhood she had experienced. She struck me as intelligent. However, the number and nature of the proved prior inconsistent statements and internal inconsistencies in her evidence caused me concern. The inconsistencies which I consider to be material are as follows: The omission of any allegation that the accused touched her on the vagina as alleged in particular (b) 168 I will treat the absence of any allegation in the sworn evidence of SR that the accused touched her on the vagina on any occasion or ‘on more than one occasion’ as particularised in the charge as a prior inconsistent statement in accordance with the principles articulated in R v M,AS (2013) 118 SASR 160: The use of a demonstrated inconsistency between the prosecutor’s opening and a witness’ testimony to test the credit of that witness is a traditional and well-known process. The extract from Davis and Hyland v The Queen discussed above referred to inconsistencies established on this basis: ... A direction from the judge was required in conjunction with references to evidence; not just of possible inconsistencies between what the woman was then saying and what she had said in April, but also as to any inconsistencies between her evidence and the case as opened to the jury. ... (Emphasis added) There are many authorities in which a similar process has been referred to on appeal. The results of appeals have varied (often in line with the importance or otherwise of the inconsistency in question). What is constant is that this process of drawing an inference that the witness has previously made an inconsistent statement is open to the jury. [footnotes omitted].131 169 I infer and find that SR previously made an inconsistent statement on this topic, namely that the accused touched her on the vagina on more than one occasion. This is material inconsistency given it relates to a particularised unlawful sexual act that is alleged to have occurred on more than one occasion. In these circumstances, I find the fact that SR did not make this allegation in the witness box to be an inconsistency which significantly undermines her reliability and credibility. The omission of any allegation in SR’s evidence that the accused kissed her with an open mouth during any of the alleged occasions of sexual abuse or at all 170 SR did not mention at all in examination in chief any occasion when the accused kissed her, let alone with an open mouth. This conduct did not feature in her account of any of the occasions of sexual abuse, including the last occasion which was referred to in the opening as being a specific occasion when the accused kissed her using his tongue. The first mention of kissing was at the end of her cross-examination when it was put to her that the accused had not done anything 131 [91] – [92]. -- 38 of 42 -- [2024] SADC 110 37 else of a sexual nature and she said, ‘other than kissing, no’. The topic was understandably then explored in re-examination. However, contrary to the opening, SR said she could not recall the accused kissing her in Whyalla (or at Seaton or Lockleys) and could not provide any detail of where or when it happened. 171 I infer and find that SR has made a prior inconsistent statement in which she alleged the accused had kissed her with an open mouth on more than one occasion and, in particular, on the last occasion of sexual abuse at Whyalla. This is material inconsistency given it relates to a particularised unlawful sexual act that is alleged to have occurred on more than one occasion. In these circumstances, I find the fact that SR did not make this allegation in the witness box to be an inconsistency which significantly undermines her reliability and credibility. The omission from SR’s first, second and third statements of any allegation that the accused performed cunnilingus upon her 172 According to SR there was only a single occasion upon which the accused performed an act of cunnilingus upon her. This sexual act was said to have occurred on the last occasion of any sexual abuse by the accused. SR said that it hurt. Further, in the opening it was alleged to have been accompanied by the accused placing his hand down her pants and touching her vagina and clitoris and telling SR that the next time they were alone together they would have sex. 173 In her statement dated 13 September 2021 she told police that the order of events on the last occasion of sexual abuse was cunnilingus and then fellatio. In evidence she said it was the other way around and that had always been her memory of the order of events. No explanation was sought or given for the failure to mention the act of cunnilingus in the first three statements to police. As it was alleged to have occurred only once and on the last occasion of sexual abuse, the failure to mention it in evidence is explicable on the basis that it was not something that in fact occurred. The inconsistent statement by omission is one which undermines the credibility and reliability of SR’s account of the sexual activity that took place on this occasion. Order of events on last occasion of abuse in Whyalla 174 In opening, the order of sexual acts on the last occasion of abuse was asserted to be cunnilingus and then fellatio. In evidence, SR said it was the other way around. Whilst the failure to recall correctly the order of sexual acts in a relationship in which there are multiple sexual acts perpetrated over a significant period of time may be of little moment and readily explicable, in this case, only one occasion of cunnilingus was alleged, and it occurred on the last occasion of sexual abuse. Accordingly, it is reasonable to infer that SR’s memory of the order of events on this occasion (if they had in fact occurred) would be reliable and consistent. I consider the inconsistency in the account of the order of events is a material one which undermines SR’s credibility and reliability regarding the sexual activity that took place on this occasion. -- 39 of 42 -- [2024] SADC 110 38 What the accused said to SR on the last occasion of sexual abuse in Whyalla 175 In opening, reference was made to what the accused said to SR during the last occasion of sexual abuse. It was alleged that he told SR that the next time they were properly alone together they were going to have sex. In evidence, SR said twice that she could not recall anything being said and then asserted that when the accused had finished, he told her to put her pants back on and that her punishment was over, and she could go and play now. 176 I infer and find that SR has made a prior inconsistent statement in which she alleged a specific conversation by the accused and one which suggested that the offending behaviour would escalate. This is material inconsistency because it relates to something the accused said about future sexual activity and a foreshadowed escalation of the activity. Other prior inconsistent statements relating to the same occasion have been proved, as referred to above. In these circumstances, I find the fact that SR did not make this allegation in the witness box and provided a different account of the conversation to be an inconsistency which significantly undermines her reliability and credibility of her account of this occasion. The inconsistency between SR’s account to police of the location and circumstances of the first occasion of sexual abuse she could recall 177 SR’s account of the location and circumstances of the first occasion of sexual abuse she could recall was materially inconsistent with the account she gave to Detective Corfield on 4 November 2018. SR blamed Detective Corfield for the error and asserted that she told her it occurred in the bathroom, but bedroom had been incorrectly recorded in the statement. I have preferred Detective Corfield’s evidence on this topic and find that SR told her it happened in the bedroom, and she made no mention of the bathroom. 178 SR went further and asserted she crossed out ‘bedroom’ and substituted bathroom and also crossed out ‘sat on the bed’ before signing the statement. She could not explain how she came to sign a statement in which she adopted as true and accurate the conflicting account. In light of the agreed facts, I am satisfied that no such marked-up statement exists or existed. I infer and find that if SR marked up the statement in the way she described, a copy of that would have been retained and those corrections would have been made before she signed it. 179 These findings require me to reject SR’s explanation for the inconsistency, leaving it without an adequate explanation. Further, I find that SR’s explanation for the inconsistency was not truthful. This is troubling as the inconsistency cannot be attributed to a mistake or mixing up the occasions about which she was giving evidence. Further, her account of family members being in the pool and the incident occurring during the day was something she had never previously told police in any of her five statements. These matters undermine the credibility and reliability of SR’s account of this occasion of abuse. -- 40 of 42 -- [2024] SADC 110 39 The duration of the alleged abuse and how old SR was when it commenced 180 It was proved that SR made prior inconsistent statements in which she asserted the abuse started when she was eight years of age and later said it occurred when she was maybe five years of age. Her explanation that her memory was getting better over time was implausible. In her 4 November 2018 statement she said the abuse occurred over a period of two years by her 23-year-old brother. The inconsistencies undermine the reliability of her account of the duration of the offending. The accused’s threats 181 SR gave an internally inconsistent account of the consequences threatened by the accused if she disclosed the abuse. SR first gave evidence in February 2024 and returned to conclude her evidence in July 2024. In February 2024 she said that the accused threatened to kill her and her family if she ever told anyone. In July 2024 SR denied that the accused had threatened to kill her or her family but said he threatened to harm her younger brother, L. SR also said that she had told police the accused had threatened to harm L. Detective Corfield gave evidence that SR had not said this to her. 182 I formed the distinct impression that SR had completely forgotten her earlier evidence regarding the terms of the threat, despite her asserting that all she remembered was that he had threatened her, and she never told anyone because that threat was replaying in her head. I view with circumspection SR’s evidence of the threat and am not prepared to act on it. Accordingly, I am not satisfied that the accused threatened SR in the way she described. This finding undermines SR’s evidence regarding the reasons for the timing and circumstances of her disclosure of the abuse. However, given the accused’s reputation for violence and aggression, and the paucity of evidence regarding the circumstances of her foster care in Darwin, I do not consider it unreasonable for SR not to have complained until she was well removed from her family and the accused. Other inconsistencies 183 There were other proved prior inconsistent statements which, although not material, enhance the cumulative effect of the inconsistencies I have found to be material. Those inconsistencies included where SR and the accused were prior to the last occasion of abuse in Whyalla, when it was that D junior walked into the room, whether the accused ejaculated on the first occasion, SR’s inconsistent recall of the address at which she recalled the first occasion of sexual abuse occurring, when the accused started ejaculating in her mouth, the sleeping arrangements in Whyalla and the conversation with VS in which VS told her she believed SR. Evaluation of the accused’s record of interview 184 The accused’s interview is not evidence on oath and has not been subjected to cross-examination. However, I will assess the accused’s demeanour, credibility and reliability in his interview with the police in the same way as I assess the -- 41 of 42 -- [2024] SADC 110 40 evidence of all other witnesses.132 I give the accused credit for answering police questions in circumstances where he was not obliged to. 185 At the time of the interview, there is no suggestion that the accused had any notice or forewarning of the allegations being made by SR. I have evaluated the accused’s denials during his interview in the following manner. The accused has the presumption of innocence in his favour and does not have to prove anything. The burden of proving the charges beyond reasonable doubt rests on the prosecution. It is not necessary for me to believe the accused’s denials for there to exist a reasonable doubt. If the accused’s denials are even reasonably possibly true, the prosecution will have failed to prove its case. 133 Even if I reject the accused’s denials as not reasonably possibly true, it does not follow that the prosecution has proved the charge. The accused can only be convicted if I reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt that the elements of the offence have been proved based on the evidence of SR. 186 The accused’s shocked and surprised reaction to being accused of child sexual abuse struck me as genuine, as did his fervent denial of the allegations, unspecified and unparticularised as they were. Whilst I accept that an emotional reaction to an allegation of a crime is not necessarily a reliable indicator that a person has been wrongly accused, in this case, I formed the view that the accused was genuinely horrified by the allegations because they were not true, and he was surprised and angry that he could be accused of such conduct. Conclusion 187 It is my task to determine whether the prosecution has proven the accused’s guilt beyond a reasonable doubt based on the whole of the evidence. The whole of the evidence includes the accused’s record of interview. 188 The findings I have made regarding the evidence of SR leave me in a position where I have a reasonable doubt regarding the credibility and/or reliability of material aspects of her evidence and in particular whether the sexual acts alleged in fact occurred. The compelling nature of the accused’s denials have fortified that reasonable doubt. 189 It follows that I am not satisfied beyond a reasonable doubt that the accused committed the offence charged. Verdict 190 I find the accused not guilty. 132 Robinson v The Queen (No 2) (1991) 180 CLR 531, 535-536; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257. 133 De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11]; R v Alwazan [2016] SASCFC 155, [3]. -- 42 of 42 --