[2024] SADC 145

Prosecution: R Counsel: MS B SPROD - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: H, M Counsel: MR N GABRIEL - Solicitor: KNOX & ASSOCIATES Hearing Date/s: 05/02/2024 to 07/02/2024 File No/s: DCCRM-23-025659 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 H, M Criminal Trial by Judge Alone [2024] SADC 145 Reasons for the Verdict of his Honour Judge Allen 7 November 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The accused elected for trial by judge alone on one count of sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that between 18 October 2016 and 1 October 2019, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with or towards her namely: (a) touching her breasts on more than one occasion; (b) touching her vagina on more than one occasion; (c) showing her pornography on more than one occasion; and (d) kissing her on the lips. Verdict: Not Guilty Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to. DS v R [2018] NSWCCA 195; Murray v The Queen (2002) 211 CLR 193, considered. -- 1 of 36 -- -- 2 of 36 -- R v H, M [2024] SADC 145 [Criminal] Overview 1 On an Information dated 6 October 2023, [H, M] is charged with the following offence: Statement of Charges Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars [H, M] between the 18th day of October 2016 and the 1st day of October 2019, at Brahma Lodge and other places, maintained an unlawful sexual relationship with [N], a person under the age of 17 ears, by engaging in two or more unlawful sexual acts with or towards her, namely: (a) touching her breasts on more than one occasion. (b) Touching her vagina on more than one occasion; (c) Showing her pornography on more than one occasion; and (d) Kissing her on the lips. … 2 The accused elected for trial by judge alone. For the reasons which follow, I find the accused not guilty. Elements of the offence 3 The offence of sexual abuse of a child has four elements: 1. The accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred; 2. The accused was an adult during the period in which the particularised unlawful sexual acts occurred; 3. The complainant was a child under the age of 17 years during the period in which the particularised unlawful sexual acts occurred; and 4. The accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant. -- 3 of 36 -- [2024] SADC 145 2 4 Elements one, two and three were not in dispute at trial and are established beyond reasonable doubt. Element four was the issue at trial. It was not disputed that each of the particularised acts, if proven, would amount to an unlawful sexual act. The question is whether the prosecution has proved beyond reasonable doubt that the accused intentionally committed two or more of the particularised unlawful sexual acts. 5 Particulars (a), (b) and (d) are alleged to constitute the offence of indecent assault. The elements of that offence are: Indecent assault 1. there must be an assault, a touching would suffice; 2. the assault must be deliberate as opposed to accidental; 3. the assault must be unlawful, there must be no lawful excuse for the assault; 4. the assault must be indecent according to contemporary community standards; 5. the assault must be committed by the accused with a sexual purpose or intent; 6. the complainant was under 17 years of age at the time of the assault. 6 Consent is no defence to this charge; a child under 17 years is incapable in law of consenting to sexual activity. 7 Particular (c) is alleged to constitute the offence of gross indecency. The elements of that offence are: Gross indecency 1. the accused must commit an act of gross indecency - in this case showing [N] pornography; 2. the act must be in the presence of a person under the age of 16 years; 3. the act must be grossly indecent according to contemporary community standards; and 4. the act must be committed by the accused with a sexual purpose or intent. 8 Consent is no defence to this charge; a child under 16 is incapable in law of consenting to gross indecency. -- 4 of 36 -- [2024] SADC 145 3 Preliminary legal directions 9 Having conducted a trial by judge alone, it is unnecessary to set out the various standard directions that would be given to a jury. Nonetheless, I remind myself of the following principles. 10 The standard of proof is beyond reasonable doubt. The prosecution bears the burden of proof. The accused is presumed to be innocent unless and until the evidence satisfies me that each element of the offence has been proven beyond reasonable doubt. It is not sufficient for the prosecution to show a mere suspicion of guilt or to demonstrate probable guilt. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and the verdict should be one of not guilty. The accused is not required to prove that he did not commit the offence with which he is charged. 11 Two of the witnesses gave evidence with special arrangements in place and one gave evidence with an interpreter. I must not allow the fact of these arrangements to influence the weight that I give to the witnesses’ evidence. I must not draw an adverse inference against the accused as a result of the fact that these arrangements were in place. 12 The accused did not give evidence and did not call any evidence. The accused’s silence cannot be used against him. I must not draw any inference adverse to him from the choice not to give evidence. I must not treat his silence as an admission, nor must I use it to fill gaps in the prosecution case. Background 13 [N] is 18 years old; she was born on the 23 January 2006. She finished year 12 and was planning to commence studying Nursing at Flinders University. Her mother is [ZM] and her father is [SJ]; they are still married. She has four siblings, [AR], [AT], [Z], [AM] and [AL]. [AR] is twelve years older than [N]. [AR], at the relevant time, was married to the accused. The complainant Examination-in-chief Living arrangements 14 [N] lived with her parents in the family home in Parafield Gardens. She recalls her sister, [AR] and the accused living in three different residences.1 She could not recall the addresses, they were referred to throughout her evidence as first house, second house and third house. 1 T8.38. -- 5 of 36 -- [2024] SADC 145 4 First house 15 [N] was shown Exhibits P1 and P2, which she confirmed were representative of the first house. She identified bedroom 1 as [AR] and the accused’s bedroom. Second house 16 [N] was living at her parents’ house in Northfield when her sister and the accused lived at the second house.2 [N] was shown Exhibits P3 and P4, which she confirmed were representative of the second house. [N] recalled that [AR] and the accused had three cats with them when living at this house, specifically in bedroom one.3 [AR] and the accused’s bedroom was bedroom two. [N] did not recall any furniture except the TV and a number of mattresses used for seating.4 Third house 17 [N] was shown Exhibit P5, which she confirmed was representative of the third house.5 The accused and [AR] slept in bedroom three at this residence.6 [N] believed the third house was approximately a five-to-six-minute walk from the house [N] lived in with her parents at Parafield Gardens.7 It was when [N] was living at this address that she believed her sister and the accused separated.8 [N]’s relationship with the accused 18 After they were married, [AR] and the accused would visit the family home approximately three to four times a week.9 Likewise, [N] would visit [AR] and the accused’s residence. [N] confirmed that this included all three aforementioned houses.10 19 In general, [N] described her relationship with the accused as positive; she considered him an ‘older brother’.11 It was only when she was older, around year 6, that she received sex education and realised that what was happening to her was inappropriate.12 Day visits to the accused’s residence 20 [N] said that she began visiting the accused’s house when she was around nine to 10 years old.13 The purpose of these visits was to be around her sister, [AR] with whom she had a close relationship.14 [N] said she would typically visit two to 2 T13.2. 3 T11.11; T12.7. 4 T12.24-34. 5 T13.23. 6 T13.36. 7 T14.15-18. 8 T14.30-31. 9 T14.32-38. 10 T15.6-8. 11 T22.1-6. 12 T22.11-14. 13 T15.18. 14 T15.24-31. -- 6 of 36 -- [2024] SADC 145 5 three times a week,15 but mostly on weekends since she had school during the week.16 [N] said she would typically visit the house by herself; her other siblings would not join her.17 Activities at the house usually involved hanging out with each other and watching movies.18 21 There were times that [AR] would leave the house and leave [N] alone with the accused, although this was not a regular occurrence.19 22 On occasion, [N] remembers going outside the house with the accused. They would go to the park, cinemas or shopping. Other family members would not join them.20 Sleeping at the accused’s residence 23 [N] thought she began sleeping the night at the accused’s house when she was around 10 to 11 years old.21 She only ever slept over at the second and third houses.22 She would usually only sleepover on the weekends.23 These visits were typically requested by [N] and organised by her sister.24 24 [N] was shown Exhibit P4, the floorplan of the second house and identified bedroom 2 as where she would sleep on these occasions. [N] confirmed that bedroom 2 was the accused and [AR]’s bedroom.25 She said she would sometimes sleep with them in the bed, and other times on the floor next to their bed in this room on one of the mattresses from the lounge.26 When the accused lived at the second house, she would sleep over every other weekend.27 This was in addition to the two to three times a week that she would visit during the day.28 25 When [N] would sleep in what she believes was a queen-sized bed, she recalled that the accused would typically sleep in the middle, with herself and [AR] on either side of him. The sleeping positions were not explicitly organised.29 26 [N] was shown Exhibit P5. She identified bedroom 3 and the living room as where she would sleep when visiting the third house.30 She labelled bedroom 3 as the accused and [AR]’s bedroom. When she would sleep in the bedroom, they 15 T16.10. 16 T16.5-6. 17 T16.29. 18 T16.32-33. 19 T16.34-T17.6. 20 T17.8-14. 21 T17.22. 22 T18.10. 23 T18.13. 24 T15.37-T16.1. 25 T18.24-29. 26 T18.32-T19.2. 27 T21.12. 28 T21.20. 29 T19.3-8. 30 T19.26. -- 7 of 36 -- [2024] SADC 145 6 would sleep in the same positions as in the second house.31 She could not recall the size of the bed at the third house.32 [N] stated that there were times when [AR] would sleep in the bedroom, and she would sleep on one of the lounges. The accused would sleep on a lounge at one end of the loungeroom, and she would sleep on another at the other end of the lounge room.33 Unparticularised incidents 27 [N] believed that the offending began approximately a year after the accused and her sister were married.34 28 [N] stated that the accused would:35 Constantly touch me, touch my body in the areas that I didn't feel comfortable or wanted to be touched. Mostly around my breast area and private area. He would make me sit very close to him on his lap. He wouldn't like it if I moved away from him or sit any further than a few centimetres apart. 29 [N] stated the accused would touch her, both over and underneath her clothing, on her breasts, buttocks, around her waist, and on other private areas. She noted that as she got older the inappropriate touching became more extreme and he would touch her vagina often, as well as show her explicit videos.36 30 When asked about her reaction to any inappropriate touching by the accused, [N] said:37 When he would touch me I would remove his hand from my body, like very often, but he would insist and he would touch me again. I would then tell him to not and I felt uncomfortable or that it hurts, but he, again, would insist and tell me that it's all right, and he wouldn't stop until I started crying. Touching over clothing 31 [N] said that the accused would touch her breasts over her clothes. He would squeeze and put pressure on them and grab them. This would happen almost every time [N] would visit their house.38 The accused would typically perform this action when they were alone; although occasionally he would do it when others were present and dismiss his actions as merely a joke.39 32 [N] alleged that the accused touched her waist over her clothes. This would usually occur when sitting beside him. [N] said he often wanted her to sit on his lap. She said he would sometimes grab her by her waist to pull her closer to his 31 T19.33-34. 32 T19.37. 33 T20.12-13. 34 T22.27. 35 T22.18-23. 36 T26.3-5. 37 T28.28-33. 38 T22.11. 39 T23.16-18. -- 8 of 36 -- [2024] SADC 145 7 body.40 He would sometimes do this by putting one arm around her waist when he wanted her to sit on his lap. Otherwise, it would happen while they were sleeping next to each other in the same bed in the second and third houses.41 According to [N], this would happen very often.42 When he would grab her waist in bed, he would hold her very tightly against his body but also hold her buttocks and press it against his crotch.43 [N] clarified that his penis would touch her buttocks.44 Whilst lying in this position he would also touch her breasts over her clothing. [N] remembers this being very rough and hurting her.45 33 There were times when the accused would touch her breasts and that [AR] would also be present. He would sometimes touch her breasts when all three of them were in bed together. He would also touch her breasts when [AR] would be in another room, such as the kitchen or loungeroom.46 There were also times when the accused would touch [N]’s bottom roughly and squeeze it.47 This happened very often.48 34 In terms of responding to the alleged inappropriate touching, [N] said she would attempt to stop him by pulling his hand away, but he would simply put it back.49 She reiterated that she did not say anything to the accused about his behaviour until much later because she was not aware that his actions were wrong. Undressing 35 [N] gave evidence about the accused watching her undress. This happened at all three houses, but she said it happened most often at the second and third houses.50 36 [N] said in the second house she would typically get changed in bedroom 1, 2 or the bathroom.51 On these occasions, [N] said she would be having a shower or concluding her shower when the accused would open the door or ask her to open it herself. When asked whether she would ever open the door for the accused, [N] said, ‘at first no, but he would insist’.52 When the accused would enter the bathroom, [N] would either have a towel around her or attempt to cover herself quickly. There were occasions where he would enter whilst she was naked, and the accused would sit and watch her.53 This made [N] uncomfortable, and she would 40 T23.28-30. 41 T24.7-9. 42 T24.13. 43 T24.17-.19. 44 T24.28. 45 T25.6. 46 T25.11-14. 47 T24.11-19. 48 T25.23. 49 T25.28-29. 50 T26.26. 51 Identified after being shown Exhibit P4. 52 T27.5. 53 T27.10-18. -- 9 of 36 -- [2024] SADC 145 8 direct him to look away. The accused would insist that everything was fine.54 He would remain in the bathroom until she had dressed herself.55 She was not able to specify the number of times this occurred in the second house. 37 The above would also occur in the same manner in the third house in bedrooms 2 and 3, as well as the bathroom and shower.56 [N] said this behaviour would happen almost every weekend she was there.57 38 When the accused watched her in a state of undress, most of the time [AR] was not at home, or [N] believed she was unaware that the accused was with her.58 First particularised incident Context 39 This incident occurred at the second house on a weekend. [N] said she was still in primary school, around age 10 or 11. There was no particular reason for the visit, just that she was to stay the night. [AR] and the accused picked her up from her parents’ house. [AR] was not present in the house at the time of this offending; [N] believed her sister was grocery shopping.59 Cleaning bedroom 1 40 After [AR] left the house, the accused asked [N] to help him clean the cats litter box and change their beds in bedroom 1.60 When cleaning the room, [N] expressed that she was thirsty. The accused offered her a drink and he brought her a non-transparent dark-brown glass bottle.61 At the time, [N] noted the drink had a strong smell and queried what the drink was. The accused denied that it was alcohol. She did not like the taste, so she did not drink more than a sip.62 [N] observed that after he had consumed his own drink, the accused ceased cleaning and became more forward with his touching.63 Whilst they were still in bedroom 1, [N] said he moved closer to her and that there was no space between them. He then touched her waist and shoulders.64 Watching pornography in the loungeroom 41 [N] remembers the accused taking her to the loungeroom and making her lie on the mattresses on the floor. She could not recall what he did with the bottle nor how much liquid was left in it.65 54 T27.19-21. 55 T27.23. 56 T28.1-2. 57 T28.9. 58 T28.13. 59 T29. 60 Exhibit P4; T31. 61 T31.29. 62 T30.25-38. 63 T32. 64 T32. 65 T33.9-16. -- 10 of 36 -- [2024] SADC 145 9 42 The accused then opened his laptop, played a pornographic video, and started touching her. She could not recall the colour or brand of laptop.66 She could not recall what website he searched; other than the fact that it was a bright blue colour.67 [N] described the pornographic video. She said it pictured a female and male having sex, they were not wearing any clothes and were being ‘very touchy’.68 43 [N] confirmed that as the video was playing, she remained lying on the floor on the mattress on her back. The accused was lying beside her.69 [N] was uncertain but believed that the laptop was to her right and the accused was on her left.70 She could not remember how long they watched the pornography for.71 44 [N] said she had never watched pornography before and that it was her first time seeing a video of the sort. It made her surprised and uncomfortable. She remembers not knowing how to react, and that she felt numb.72 She asked the accused what the video was, but he did not respond.73 Sexual contact 45 Whilst the accused and [N] were lying on the mattress watching the pornography, he started touching her. [N] did not remember the colour or design of the clothing, but recalled she was wearing a long-sleeved t-shirt and leggings. Underneath her clothes she wore underwear and a bra.74 46 [N] said he touched her breasts and vagina over her clothing whilst the video was playing, she remained lying on her back on the mattress.75 47 She was not able to say how long the accused touched her breasts for but remembers that he was ‘grabbing and squeezing them roughly’.76 He also touched her vagina by rubbing and putting a lot of pressure on it.77 As he touched her over her clothing, [N] attempted to remove his hand multiple times, however he would move it back and repeat what he was doing.78 48 [N] said the accused also touched her body, particularly her breasts and vagina, underneath her clothing.79 [N] confirmed that he touched her underneath her long-sleeved t-shirt and her bra.80 She said he touched her breasts in the same 66 T33.25. 67 T33.32. 68 T34.2-10. 69 T34.23. 70 T34.24-29. 71 T34.30. 72 T35.1-4. 73 T35.10. 74 T35.29-31. 75 T35.32-36.3. 76 T36.7-9. 77 T36.12. 78 T36.14-18. 79 T36.27-30. 80 T36.34. -- 11 of 36 -- [2024] SADC 145 10 way as he did over her clothes; with considerable pressure.81 [N] said he also touched her vagina underneath her clothing by putting a lot of pressure on it. She clarified that by ‘pressure’ she meant he would use his fingers and hand to ‘press down on the entrance’.82 49 [N] said she did not ask the accused what he was doing, but would again attempt to remove his hand, but he would return to touching her.83 The accused did not say anything to her when he was touching her.84 She could not confirm how long this episode of touching went on for, only that it felt like a long time to her.85 The accused ceased touching her when the video finished; he then turned the laptop off and shut it.86 50 During this incident, [N] did not take off her clothes, nor were they removed. The accused also did not remove his clothes.87 51 [AR] arrived home. [N] could not say how long she was out of the house for.88 [N] did not tell her sister what happened with the accused while she was gone, she felt embarrassed and did not understand that his actions were wrong.89 52 [N] went home later that day. She did not tell anyone what had happened that day because she was embarrassed and ‘didn’t think it was something they needed to know’.90 Second particularised incident 53 [N] stated this incident occurred in the third house when she was around 11 to 12 years old. It was around this time she remembers that her sister [AR] had fallen pregnant.91 [N] stopped sleeping in the bed with [AR] and the accused when her sister was pregnant because [N] ‘moved a lot in her sleep and was scared [N] would hurt the baby’.92 This meant [N] would instead sleep on the floor in bedroom 3 on a mattress or in the living room on the couches.93 54 On the night of this incident, [N] said her other sister [Z] was also sleeping over. [Z] was sleeping in the same bed as [AR] in bedroom 3.94 [N] was sleeping in the loungeroom; according to [N], her sister asked her whether she would prefer to sleep in the bedroom or loungeroom. [N] remembers not wanting to disturb her 81 T36. 82 T37.4-12. 83 T37.20-21. 84 T38.15. 85 T37.36. 86 T38.2-8. 87 T39.18-21. 88 T38.25-28. 89 T38.33-34. 90 T39.4-6. 91 T39.33-38. 92 T40.17. 93 T40.20-26. 94 T41.10-14. -- 12 of 36 -- [2024] SADC 145 11 sister so she would sleep in the lounge.95 The accused then offered to sleep with her in the loungeroom, although [N] cannot recall precisely what he said.96 55 [N] could not recall exactly what time she went to sleep, but that it was around midnight.97 [Z] and [AR] had already gone to bed by the time [N] went to sleep in the lounge.98 When [N] first moved into the loungeroom to prepare herself for sleep, she sat on the right-hand side couch for a few minutes.99 The accused was on the left side of the dining room. Sexual contact 56 The accused asked [N] if she wanted to watch a movie and [N] agreed. She moved to the couch he was sleeping on.100 They played a movie; [N] could not recall if it was a small computer or TV. She could not recall what movie was playing, although she confirmed it was not pornography.101 As they were watching the movie, [N] was positioned on her back on the edge of the couch.102 The accused was positioned on his side beside her.103 During her evidence, [N] marked where the movie screening device was on Exhibit P5. 57 [N] remembers wearing a top and leggings as well as underwear and a bra.104 [N] was not certain but thought the accused was wearing a top and shorts.105 Whilst they sat on the couch, they had a blanket on top of both of their legs.106 She does not remember anything in particular about that blanket. 58 As she was lying on her back, [N] said the accused started to touch her underneath her clothing. He used his hand to squeeze and grab her breasts in, what [N] described, as an uncomfortable manner.107 [N] said she would move his hand very slowly and lightly away from her body, but he would just continue to touch her.108 She did this multiple times. The accused did not say anything at the time.109 As the accused was touching her, she did not move position. 59 The accused also touched [N] on the vagina, underneath her underpants. She said he ‘rubbed it very roughly and would put pressure on it with his hand’.110 Again, she would attempt to move his hand away, but he would return to the same 95 T41.22-25. 96 T41.25-29. 97 T42.8-9. 98 T42.15. 99 T42.20-23. 100 T44.26. 101 T43.1-8. 102 T45.1. 103 T45.4. 104 T45.33-37. 105 T46.5-7. 106 T46.20. 107 T46.32-33. 108 T47.4-13. 109 T47.15-16. 110 T47.32-33. -- 13 of 36 -- [2024] SADC 145 12 action.111 [N] asked the accused to stop and that she felt uncomfortable, to which he responded that ‘it was okay’.112 [N] said that neither of them changed positions whilst this was happening. The blanket remained over their legs and up to [N]’s waist during this incident.113 60 She could not recall how long the accused touched her on the breasts and the vagina.114 The movie continued to play whilst the accused was touching her.115 61 The accused ceased touching [N] as she began to cry. She then moved back to her couch. [N] said the accused left the room and when he returned, he kneeled beside her116 and told her to stop crying and that ‘it will be better soon’.117 She was still crying when he returned to the loungeroom.118 [N] explained that she was crying because she was uncomfortable and did not know what to do, and that her body ‘just reacted that way’.119 62 [N] said the movie had been turned off by the accused and he moved back to his couch. There were not any other lights on in the room when the movie was playing.120 [N] then went to sleep. She thinks it was past midnight or close to midnight at this point.121 63 The following morning, [N] said that the accused acted like nothing happened; he did not mention the events of the night before or mention anything about discussing it with other people.122 [N] also raised the incident with the accused.123 She returned to her parents’ house the day following the incident.124 She did not speak to her parents about this incident because she was uncomfortable and did not want to talk about it.125 Third particularised incident (whilst [AR] was visiting Iran) Context 64 [AR] gave birth to [N]’s niece [S] on 20 October 2018, after the second incident. When [S] was born, [AR] and the accused were living in the third house in Paralowie. After [S] was born, [AR] went to Iran for two or three months.126 [N] confirmed that whilst [AR] was away, she saw the accused, albeit not as often 111 T48.3. 112 T48.8-12. 113 T48.29. 114 T48.23. 115 T48.35. 116 T49.28. 117 T48.37-T49.3. 118 T49.34. 119 T49.5-6. 120 T50.15. 121 T50.11; T50.21-23. 122 T50.27-35. 123 T50.38. 124 T51.1. 125 T51.11-13. 126 T51.35. -- 14 of 36 -- [2024] SADC 145 13 as she used to.127 She remembers the accused coming over once or twice a week to her parents’ house in Parafield Gardens to collect food.128 65 This incident relates to the occasion where the accused went to [N]’s parents’ house to get food. [N] cannot recall exactly when this incident occurred, but believed it was the school holidays between term 1 and 2.129 It was night-time when the accused came inside the house.130 He said he would take the food home to eat. He asked if he could take [N] to the cinema.131 [N]’s mother, [ZM], agreed but said that she had to come home afterwards.132 The accused had taken [N] to the cinemas previously, albeit with other people in attendance as well.133 [N] said she felt uncomfortable about going to the movies with the accused at first, but was too afraid to say no.134 66 As the accused was driving, [N] realised they were not going in the direction of the cinemas and were instead headed to the third house when he turned left at a roundabout instead of right.135 This confused [N].136 67 When they arrived at the third house, she went to the living room and sat on one of the couches. The accused asked her to come into bedroom 3. After she entered the room, [N] said the accused grabbed her by the waist as she was standing up137 and started kissing her. [N] said the kissing was very rough and involved multiple little kisses; the accused did not use his tongue, but she said it hurt due to the pressure he was applying to her lips.138 She was not sure how long he kissed her for.139 68 He then moved her body gently and pushed her towards the bed.140 After he sat [N] on the bed, he proceeded to take her shirt off and touch her breasts, shoulders and waist.141 He did not remove her bra.142 After he took her shirt off, he continued to kiss her and told [N] to lay on the bed. She followed his instructions.143 At this point the accused was standing up in front of her.144 [N] was shown 127 T52.2-3. 128 T52.15. 129 T53.13-20. 130 T53.23. 131 T52.36. 132 T53.32. 133 T53.7-8. 134 T54.9. 135 T54.19-21. 136 T54.37. 137 T55.25; T55.28. 138 T55.37-38. 139 T56.3. 140 T56.9-12. 141 T55.6-11. 142 T56.23. 143 T56.25. 144 T56.31. -- 15 of 36 -- [2024] SADC 145 14 Exhibit P6. She confirmed that the word ‘me’ within the large circle on the bed represented where her head was positioned. 69 The accused retrieved his laptop, opened it and began playing a pornographic video. [N] said she observed a video of a naked male and female having sex. She believed it was a different video than the one she had been shown by the accused previously.145 Whilst this video was playing [N] remained lying on her back.146 Meanwhile the accused was lying on his side facing the wardrobe.147 70 Whilst the top part of her clothing was removed by the accused, [N] said the bottom part of her clothing remained on.148 When he removed her top she did not resist or say anything to him. 71 As the pornography was playing, [N] said the accused began to touch her vagina underneath her clothing149 in an aggressive manner.150 She remembers him pressing down and attempting to put his fingers inside her. She said it hurt her vagina more compared to other times he had touched her.151 [N] told him to stop. The accused did not respond and continued to touch her.152 At one point he asked her to change positions, so she was sleeping on her side, he then touched her butt.153 He was grabbing her butt and pulling her against himself so that her bottom would touch his penis.154 Whilst she was on her side she was facing the wardrobe, as was the accused.155 The accused also grabbed [N]’s breasts underneath her bra and was squeezing quite hard.156 72 At this point [N] recalled feeling scared and ‘thinking of the worst’; she was unsure what to do and was very uncomfortable.157 [N] started crying because she was in pain from the accused pressing on her vagina, he asked her to stop crying. At this point the accused stopped and shut the laptop.158 After the sexual contact 73 [N] told the accused she wanted to go home. She used the accused’s phone to call her dad. She put her top back on.159 She could not recall how long she was 145 T59.29. 146 T58.21. 147 T58.29-32. 148 T58.36. 149 T59.32. 150 T59.11-13. 151 T59.16-20. 152 T59.35-36. 153 T60.3-5. 154 T60.12-13. 155 T60.16-19. 156 T60.22-25. 157 T60.28-29. 158 T60.33-T61.6. 159 T62.17. -- 16 of 36 -- [2024] SADC 145 15 at the third house that evening, or what time her dad came to collect her.160 [N] did not tell her parents what happened when she was picked up.161 Relationship with the accused following the third particularised incident 74 [N] confirmed that following the third incident, she did not see the accused again other than the few times he went to her parents’ house to collect food. She was never alone with him again and did not speak with him again. At some point after the third incident, the accused and [AR] ended their relationship.162 The accused attempted to contact [N] again and sent her messages via social media along the lines of ‘I miss you baby; I want to see you again’.163 [N] subsequently deleted these messages and blocked the accused.164 Cross-examination Background165 75 [N] was asked about her cultural background. She agreed that she came from a religious culture with customs that she inherited from her parents. She agreed that it could be a strict culture at times, particularly regarding drinking alcohol. First incident (the accused offering [N] alcohol 76 There was an instance where [AR] spoke to her mother and discussed not letting [N] be alone around the accused.166 [N] said she only spoke to her mother about the accused’s alcohol consumption after she disclosed his alleged offending to her parents in mid-2023. Therefore, when her mother became aware of the accused’s alcohol consumption, [N] had already ceased contact with the accused.167 Likewise, [N] was not aware the accused was drinking until after the first incident, so she did not believe that was the reason that [AR] was careful about her being left alone with the accused.168 77 [N] was asked how she recognised that the video the accused showed her was porn. She said in the moment she was not aware that the video was pornography and that it was only after she received sex education at school that she understood.169 She was asked about how she retrospectively understood it was pornography. [N] said it was because they were having sex. She remembers that the people were both naked and white.170 160 T62.18-23. 161 T62.29. 162 T62.32-T63.7. 163 T63.13-14. 164 T63.20. 165 T64. 166 T26-29. 167 T64.38-65.11. 168 T65.23-28. 169 T66.14-15. 170 T66.24. -- 17 of 36 -- [2024] SADC 145 16 78 It was put to [N] that: • she was never offered alcohol; • that there was no touching by the accused either under or over her clothing; • that she was never shown pornography by the accused; and • that nothing inappropriate happened at that time. 79 [N] rejected each and all of these suggestions.171 Second particularised incident (whilst [AR] was pregnant) 80 [N] confirmed that she agreed to sleep in the lounge area because she did not want to disturb [AR]. [N] confirmed that [Z] did sleep in the same bed with [AR]. [N] agreed with the suggestion that it would not have been appropriate for [Z] and the accused to sleep in the same bed due to her culture and customs.172 [N] disagreed that the accused had no choice but to sleep in the lounge, instead she offered that he had the option to sleep in one of the other bedrooms.173 [N] confirmed that she had, on other occasions, slept in those bedrooms herself either alone or with [AR].174 [N] was not sure if [AR] was a light sleeper.175 81 Generally speaking, [N] agreed that when she would share a bed with the accused and [AR], the accused would sleep in the middle, with [AR] on one side and herself on the other. She stated that in the bed the accused would grab her waist.176 82 [N] was asked about when [AR] would go to the kitchen. [N] said it was usual that [AR] would wake up early and go in the kitchen in the morning. In terms of the layout, [N] said that if you were standing in the kitchen, you would be able to see the two couches in the loungeroom; there was no wall separating the dining room and kitchen.177 83 When the second incident occurred, [N] confirmed that [Z] and [AR] were in bedroom 3 and that neither of them came out of the bedroom at any time.178 84 It was later put to [N] that in relation to this incident, the accused never assaulted her. [N] rejected this.179 171 T66.29-T67.6. 172 T67.30. 173 T67.34. 174 T67.36-T68.4. 175 T68.14. 176 T68.27. 177 T69.11-22. 178 T69.33. 179 T80.21. -- 18 of 36 -- [2024] SADC 145 17 Third particularised incident (whilst [AR] was visiting Iran) 85 [N] confirmed that when the accused came to her parents’ house, her mother, [ZM], permitted him to take [N] to the cinema, but stipulated that he had to bring her home at night.180 86 It was put to [N] that: • she was lying about this incident; and • that her mother never let her go with the accused whilst [AR] was in Iran.181 87 [N] rejected both of these suggestions. Inappropriate touching generally 88 [N] confirmed that there would sometimes be other family members, specifically her sisters, present when the accused would ask her to sit on his lap and grab her waist.182 [N] said if they were present, she did not think they would be close enough to notice any inappropriate touching. 89 [N] said her family members, when present, would be spread throughout the house. She identified the various rooms they would spend time in after being shown Exhibits P4 and P5.183 90 [N] said [AR] and [AT] were the only ones that ever spoke to her about the touching or grabbing. Her sister, [Z] only visited the accused’s house on rare occasions.184 [N] said that both [AR] and [AT] advised her not to hang out with the accused or ‘get too close to him’.185 [N] confirmed that this was the extent of their conversations about the accused’s inappropriate behaviour.186 91 [N] rejected the suggestion that any contact made between her and the accused was normal and compared this with usual interactions she would have with family members and with her culture.187 Relationship with her parents and alleged boyfriend 92 [N] did not believe that her mother was strict. She disagreed that she had ever acted in a way her mother would disapprove of behind her back.188 180 T70.17. 181 T70.28-30. 182 T73.2. 183 T73.37-74.13. 184 T74.32-34. 185 T74.36-38. 186 T75.5. 187 T76.30. 188 T77.6. -- 19 of 36 -- [2024] SADC 145 18 93 [N] denied that she had a boyfriend or that she was romantically seeing someone during the time when [AR] and the accused were together.189 [N] was shown MFI D7. She did not recognise the contents of the document in front of her. 94 [N] rejected the suggestion that because of her parents’ strict adherence to their cultural customs, she made up allegations against the accused.190 [AR] Examination-in-chief Background191 95 [AR] is 29 years old. She was born in Afghanistan and came to Australia when she was 16. She confirmed she is 12 years older than [N]. She confirmed that she was married to the accused in 2015. Their relationship ended; they separated in 2019 and got divorced in 2020. [AR] has one child, [S], who was born in Australia and is the accused’s biological child. [AR] and the accused were living in Paralowie when their child was born.192 When [AR] was in a relationship with the accused, she said he did not work. Trip to Iran 96 [AR] confirmed that after [S] was born, she visited family, without the accused,193 in Iran in 2019 for around two months.194 [AR] and [S] returned in August 2019.195 She was living in Paralowie at the time of this trip and separated from the accused in September of that year. Living arrangements 97 She confirmed that when she was in a relationship with the accused, they lived in three houses. [AR] confirmed that the first house was in Klemzig, the second house was Brahma Lodge and the third house was in Paralowie. When directed to Exhibits P3 and P4 which displayed Brahma Lodge, she confirmed that she and the accused slept in bedroom 2. [AR] said that bedroom 1 was used to house her pets; she had two cats at the time. [AR] said that bedroom 1 was essentially empty but for things like cats’ food and cats’ toys.196 98 [AR] was shown Exhibit P8. She confirmed that at the Paralowie house she slept in bedroom 3 and that bedrooms 1 and 2 were empty and used for closets. [AR] said that in the living room there was one two-seater couch, one three-seater and then one one-seater and then in the other side, the dining room, was a table 189 T77.13-15. 190 T78.18. 191 T83-84. 192 T90.3. 193 T100.38. 194 T101.5. 195 T101.8. 196 T86.18-33. -- 20 of 36 -- [2024] SADC 145 19 with six dining chairs.197 [AR] marked the dining table on Exhibit P8 and confirmed that the television was next to it. Relationship with [N] 99 [AR] described her relationship with [N] as very close.198 She said she would visit [N] at the family home at least once or twice a week.199 [N] – visits during the day 100 [AR] said that from the onset of her marriage with the accused, [N] would visit their residence during the day. This would happen around two to three times a week.200 She would typically visit over the weekends, and occasionally in the afternoon after school.201 These visits would happen at each of the above-mentioned three houses.202 [AR] said these visits occurred because both her and the accused had a good relationship with [N]. She described the accused and [N] as being ‘close’.203 Sometimes these visits would involve [N] alone, and sometimes her other sisters would accompany her.204 101 In terms of instigating these visits, typically [N] would express that she was bored and either [AR] or the accused would collect her from the family home.205 102 [AR] said that there were occasions during the day where [N] was left alone at the house with the accused.206 This would usually happen when [AR] was at work. [AR] was employed as a casual worker and would typically work afternoon and night shifts.207 [AR] could not remember how long [N] would have been left alone with the accused.208 103 [AR] said that [N] and the accused would spend time with each other; she observed them playing computer games and watching TV together.209 She said there were also times that [N] and the accused would leave the house and get food together.210 197 T88.12-17. 198 T90.14. 199 T90.28. 200 T91.37-92.1. 201 T91.7-10. 202 T91.34. 203 T91.13-15. 204 T91.18-19. 205 T91.26-28. 206 T91.38. 207 T92.6-7. 208 T92.10. 209 T92.15-17. 210 T92.21. -- 21 of 36 -- [2024] SADC 145 20 [N] – visits overnight 104 [AR] said [N] began sleeping over at their house around one to two months after she had moved in with the accused.211 Overnight stays occurred at all three houses and would occur on the weekend.212 To arrange the sleepovers, sometimes [AR] would accompany the accused in collecting her from her parents’ house, and sometimes he would go by himself to collect her. 105 [AR] remembers [N] and the accused staying up late watching TV or playing games in the living room, and she would notice in the morning that they were sleeping in the living room or on the bed.213 She said this would happen in all three loungerooms.214 106 At the Paralowie house, [AR] said [N] would typically sleep on the floor, on the rugs or on the couch. When [N] would sleep in the loungeroom, the accused would also sleep there. This happened multiple times.215 [AR] could not recall there being specific couches that the accused or [N] would sleep on. 107 At Brahma Lodge, [AR] said that there was only a TV and rugs on the floor in the loungeroom. In this room, [N] would sleep next to the window. [N] would also sleep in this loungeroom. [N] and the accused would sleep in this room after watching TV together.216 [AR] would sleep in bedroom 2 when they slept in the loungeroom.217 There were also occasions when [N] would sleep in a bed at Brahma Lodge and the Paralowie address.218 [AR] confirmed that at Brahma Lodge [N] would sleep in bedroom 2 with both her and the accused.219 This happened on multiple occasions.220 108 When the three of them would share a bed, [AR] said [N] would typically sleep in the middle, although this varied.221 [AR] could recall occasions where she would sleep in the middle, and times when the accused would sleep in the middle.222 She confirmed these sleeping arrangements and positions were mirrored when they lived at the Paralowie house on multiple occasions.223 109 [AR] said there were times her other siblings would stay the night at her house. At Klemzig, [Z] would sleep over, and at Brahma Lodge both [AT] and [Z] would stay over.224 Beyond [N], her other siblings did not sleep at the Paralowie 211 T92.30. 212 T92.33-38. 213 T93.12-16. 214 T93.20. 215 T94.8. 216 T94.37. 217 T94.2. 218 T95.8. 219 T95.12-15. 220 T95.21. 221 T95.27-31. 222 T96.4-14. 223 T96. 224 T97.8-12. -- 22 of 36 -- [2024] SADC 145 21 address.225 She recalled times when both [Z] and [N] slept over together at both houses one and two, and that this happened multiple times.226 [AR]’s observations regarding the accused and [N]’s relationship 110 [AR] said that the accused and [N] were really close. She remembers that the accused used to really like [N].227 She remembers they would leave the house together, for example to grab food, and would generally spend time together.228 The accused offering [N] alcohol 111 [AR] recalled an instance where the accused offered [N] a beer.229 At that time, she stopped the accused from doing so, to which he replied, ‘it’s okay she can have a little bit’.230 She confirmed that the accused did drink alcohol. She believed around six to seven beers a day, and Jack Daniels.231 She said that the accused consumed alcohol at each of the three houses they lived at.232 The accused touching [N] 112 [AR] remembers the accused touching [N]’s body. She told the Court of a specific occasion at Paralowie where she observed the accused hugging [N] from behind and pulling her shirt from the upper part.233 She heard him say ‘I want to see if you are growing’.234 She does not remember if [N] responded to this. 113 She cannot recall any other occasions where the accused touched any part of [N]’s body.235 Cross-examination The accused’s consumption of alcohol 114 [AR] confirmed that it was in the Klemzig house that she saw the accused offer [N] alcohol, and that in the moment she stopped the accused from doing so. She agreed that from that point forward, she made efforts to stop the accused from offering [N] alcohol.236 115 [AR] also said that she had a conversation with her and [N]’s mother, [ZM], about ensuring that [N] was not to be left alone with the accused.237 [AR] was unable to remember when this conversation took place. [AR] stated that whilst she 225 T97.15. 226 T97.20-23. 227 T97.36. 228 T98.2. 229 T99.29. 230 T99.11-15. 231 T99.21-23. 232 T99.36. 233 T100.17. 234 T100.2-5. 235 T100.29. 236 T102.4. 237 T102.5-8. -- 23 of 36 -- [2024] SADC 145 22 did not reveal this to her mother, the reason why she initiated this conversation was since the accused had previously offered [N] alcohol.238 [N]’s visits – arrangements 116 The accused always drove to pick up and drop off [N] because [AR] did not have a licence.239 Sometimes [AR] would join the accused but sometimes he would go alone.240 [AR] confirmed that as [Z] and [AT] were older than [N] (they were adults) it would have been inappropriate for them to sleep in the same bed as the accused.241 When [Z] got married, the sleepovers stopped because she was busy with her life rather than it being specifically inappropriate for her to come and stay.242 Exhibits P4 and P9 117 [AR] was shown Exhibit P4. She identified certain rooms including the front door to the house and the loungeroom.243 [AR] was shown Exhibit P9. She confirmed that there was one three-seater couch against the wall towards the backyard. [AR] confirmed that her and the accused would sleep in bedroom 3 of the Paralowie house. When they slept, they would sometimes sleep with the door open, and sometimes they would close it.244 The accused and [N] in each other’s company without [AR] General 118 [AR] was not aware of [N] being taken from her parents’ house by the accused whilst she was in Iran in 2019.245 [AR] agreed that there were opportunities for the accused and [N] to be left alone in general or at the house whilst she was at work or getting groceries.246 119 [AR] confirmed that the accused used to drink in the evening.247 So, when [AR] would leave during the day she was not concerned that he would be drinking. Therefore, she believed it would be okay for him to be left alone with [N] during the day.248 The accused collecting [N] from parents’ house whilst [AR] at work 120 [AR] could recall a time where the accused picked [N] up from her parents’ house whilst she was at work but could not recall when this was.249 [AR] confirmed 238 T102. 239 T102.30. 240 T102.33. 241 T103.18. 242 T103.25-30. 243 T104.2-17. 244 T105.10. 245 T106.26. 246 T106.37; T107.18. 247 T108.24. 248 T108.34. 249 T105.14-18. -- 24 of 36 -- [2024] SADC 145 23 that her mother told her that she thought she was at the house when the accused picked [N] up.250 [AR] agreed that she was concerned that the accused would not look after [N] properly if he was drinking.251 Suggestions put to [AR]252 121 [AR] agreed that she had seen the accused pull [N]’s top down and made a comment about watching her growth; that she had spoken to police several times in relation to this matter and provided statements to them; and that a recent affidavit was the first time she had mentioned the accused pulling [N]’s top down. 122 [AR] rejected the suggestion that this was a recent invention on her behalf for the purpose of the trial. Re-examination 123 Regarding the affidavit dated 2 February 2024, [AR] confirmed that this was the statement where she was first asked if she had made any observations of the way that the accused and [N] had interacted before.253 [AR] said that at the time she had a conversation with her mother about [N] spending time alone with the accused, when she was living at the Paralowie house.254 After this conversation, [N] continued to visit and spend the night at her house.255 [ZM] Examination-in-chief Background 124 [ZM] gave evidence with the assistance of an interpreter. 125 [ZM] is the biological mother to [N]. She lived in Iran and moved to Australia with the rest of her family in May 2012. The accused was married to her daughter [AR] in 2016, although they are now divorced.256 During the time when [AR] and the accused were married, she confirmed that [N] lived with her at home. [AR] and the accused visited the family home almost on a daily basis.257 [N] and the accused 126 [ZM] said that she saw the accused like her own son. She said that in general, the accused and [N] would speak to each other whilst others were present.258 250 T106.4. 251 T106.15. 252 T110. 253 T111.13-29. 254 T112.4. 255 T112.5-8. 256 T113. 257 T114. 258 T114.21-23. -- 25 of 36 -- [2024] SADC 145 24 Occasions where the accused took [N] to his house 127 [ZM] said that she could not recall [N] going alone to the accused’s house.259 She can recall one night she stayed when her ex-son-in-law came and collected her. She recalls him saying ‘I'm going to take [N] to my place because my niece, the daughter of my sister is also here’.260 This happened when the accused and [AR] were living close by, around five minutes from their house.261 128 Apart from this occasion, [ZM] could not remember [N] attending any other sleepovers at the accused’s house.262 Similarly, she did not think that any of her other children slept over at the accused’s house.263 [ZM] confirmed that at some stage [AR] travelled to Iran with [S], she thinks they stayed for around two months but could not recall what year this was.264 Whilst [AR] was away, [ZM] said she saw the accused; he would visit for breakfast but not for any other meals. She could not remember him taking [N] from the house.265 Cross-examination Background 129 [ZM] agreed that her family were deeply religious and their culture and customs were a big part of their lives.266 Generally, she would try her best to bring her kids up accordingly.267 The accused and [N] The accused taking [N] to his house 130 [ZM] agreed that she was upset when she found out that the accused took [N] to his house and lied to her about his niece being present; she said this was not appropriate.268 She said she was more careful after that incident about letting [N] go with the accused.269 The accused offering [N] alcohol 131 [ZM] had a conversation with [N] about the accused offering her alcohol. [ZM] believed that both the conversation and the incident itself happened on the night that [N] was taken by the accused to his house.270 Following the occasion where [N] was offered alcohol by the accused, [ZM] did not give her children, including [N], permission to go to the accused’s house. 259 T114.35. 260 T115.5-6. 261 T115.13. 262 T115.17. 263 T115.20. 264 T115-32-T116.1. 265 T116.14. 266 T116.16-24. 267 T116.36. 268 T118.7-16. 269 T118.10. 270 T118.37. -- 26 of 36 -- [2024] SADC 145 25 [N]’s relationships 132 [ZM] was not aware that [N] was in any kind of relationship with a boy. She stated that it would not have been appropriate for [N] to be seeing any boy at her age during that time.271 [ZM] said that her children were well behaved and that she would not approve of [N] having a relationship behind her back.272 Brevet Sergeant Riley Examination-in-chief Background 133 Brevet Sergeant Riley has been a police officer for around 10 years. In September 2022 she was also stationed at Northern District CIB as a Brevet Sergeant in the Child and Family unit. She was the investigating officer in this matter.273 134 On October 17, 2023, she attended the accused’s address in Payneham at 10:36am. He was arrested and taken to Elizabeth Police station where she subsequently conducted a record of interview with the accused. This record of interview and accompanying transcript were edited.274 Record of interview 135 The accused’s record of interview at Elizabeth Police Station from 17 October 2022 was tendered as Exhibit P10. Background 136 The accused confirmed he had known [N] since 2015. He described their relationship as good and like a father-daughter relationship. He spoke about how he and [AR] would take [N] on holidays with them. He confirmed that he lived in Salisbury and Paralowie with [AR], and the latter was where they were living when they separated. Questions about the alleged offending 137 When asked about [N]’s allegations regarding touching her sexually, the accused said that he was unsure why she would say that. He did not believe that something could have happened between them that [N] may have misinterpreted as inappropriate touching. 138 He denied ever offering to take [N] to the cinema and instead taking her to his house when [AR] was in Iran. He said that [AR] went to Iran in 2019 for around two and a half months. 271 T120.7. 272 T120.8-19. 273 T121.32. 274 T122-123. -- 27 of 36 -- [2024] SADC 145 26 139 The accused said that he would normally kiss [N]’s face. He said that this was normal in his family, as well as kissing a friend of the family. He would kiss them on their cheek but would never kiss them on their mouth. He denied kissing [N] on the mouth. 140 He denied asking [N] to take her clothes off. Again, he said that he was not sure why she would allege this. He said when she was little [N]’s mother changed her in front of him, but she had otherwise not taken her clothes off in front of him. 141 He admitted to watching pornography but said that [N] was not around when he was watching it. He said he would only watch the pornography when she was not in the house. He denied touching her breasts and vagina whilst her clothes were off when he was watching pornography. He clarified later in the interview that he used Instagram to watch videos but that it was not pornography, and that he would not use his laptop to watch pornography. 142 When they went on holidays, he said [N] would sleep in a separate bed. However, he admitted that when she stayed at their house there were times she would sleep in the bed with both him and [AR]. He denied ever sleeping in the bed with [N] without [AR] present. 143 He expressed how his ex-wife’s family were extremely Muslim. He outlined how they would not permit [N] to be alone with him. 144 He could not think of any time whereby he would touch [N] and she would cry and ask him to stop. 145 He agreed that they had pets in the second house at Brahma Lodge. He admitted to drinking alcohol whilst living there but said it was not something he would give to [N]. He denied that the second incident happened. 146 The accused said he had not been in contact with [N] after the final incident was alleged to have occurred. He admits to texting her saying that he missed her and checking in. He said the phone he used to text [N] on was broken. He clarified that he usually contacted [N] on Snapchat or Instagram. 147 The accused said he had not seen [N] for a long time. The accused said the last time he saw [N] was around two weeks from when [AR] returned from Iran. Course of police investigation 148 Brevet Sergeant Riley made several attempts to obtain a statement from [SJ], the father of [N] and [AR] and the husband of [ZM], but was ultimately unsuccessful due to a variety of factors including a language barrier.275 149 Brevet Sergeant Riley was also unsuccessful in obtaining a statement from the complainant’s sister, [Z]. There was some back and forth in her decision 275 T125. -- 28 of 36 -- [2024] SADC 145 27 making, but eventually [Z] decided she would not like to provide a statement in the matter.276 Exhibit P11 – google map 150 Brevet Sergeant Riley used Google maps to determine the distance between the accused’s address in Paralowie and [N]’s address in Parafield Gardens. Brevet Sergeant Riley confirmed that the yellow dot represented a roundabout. Addresses of Counsel Prosecution closing address 151 By way of precis, the prosecution submitted that ultimately the verdict is reliant upon an acceptance beyond reasonable doubt on the evidence of [N] as to whether the accused committed two or more sexual acts against the complainant, in the way she described between October 2016 and October 2019. The complainant’s evidence 152 The prosecution case turns on deciding whether the complainant is being truthful in her account, or if she has entirely fabricated an account. This was not a case of confusion or mistaking general family interactions that could have aligned with [N]’s family customs. It was submitted the relationship was one punctuated by opportunistic sexual acts. 153 The prosecution submitted that it was evident that speaking about certain details made [N] embarrassed, notably when she became uncomfortable about describing body parts; what she saw on pornographic video and when asked to describe the way the accused touched her body. 154 The prosecution also referred to DS v R,277 in the context of assessing the evidence of a child and inconsistencies in relation to times and events, particularly considering the passage of time since the sexual encounters. 155 It was submitted [N] disclosed detail in relation to each of the houses and the arrangements around visiting. These statements were consistent with [AR]’s evidence on similar topics and the accused’s record of interview. 156 The prosecution submitted [N] provided detailed evidence about how the sexual encounters made her feel; specifically, that she would cry, and he would stop performing these acts on her. Her evidence was candid and forthright, she did not embellish or exaggerate. 157 It was submitted that [N] was able to provide a level of detail which the prosecution submitted was because she was describing genuine experiences. She provided detail about the following circumstances: 276 T125. 277 [2018] NSWCCA 195. -- 29 of 36 -- [2024] SADC 145 28 • Her age/year level at school; • When the acts occurred; • The house the acts occurred in; • The layout of the said houses; • How it came about that she was alone with the accused at the time; • Where her sister [AR] was at the time of offending; • Her and the accused’s positions both before and during the alleged sexual offending; • How the accused touched her body, including whether it was over or under her clothing; • How it felt on her body when he touched her; • What clothing she was wearing; • What she saw on the accused’s laptop when he played the pornographic video; • How she reacted to his offending and explained how she began resisting him by moving; his hand away from her body; • What she said to the accused; and any reply the accused had; and • Why she didn’t tell anyone in her family what had occurred. [ZM]’s evidence 158 It was conceded that there were inconsistencies between [ZM]’s evidence and the complainant’s evidence, particularly in regard to the frequency at which [N] visited the accused’s residence and slept over. That is, [ZM] could not recall these visits happening. The prosecution said her account could differ from [N]’s due to their strict Iranian family tradition and customs. Nature of the offending 159 The prosecution described the brazen nature of offending, noting that it was offending not without risk. The prosecution submitted that there was escalation in offending: that it was offending that began with touching moving to a concerted effort to isolate the complainant and make her undress. -- 30 of 36 -- [2024] SADC 145 29 Complaint evidence 160 The prosecution confirmed there was no complaint evidence. However, the complainant was asked questions about why she chose not to tell anyone about the accused’s actions. It was submitted that this evidence should provide the Court with an understanding as to why [N] chose not to speak of the alleged sexual acts. Accused’s record of interview 161 The prosecution submitted that the accused had time to consider his positions as he was interviewed at Elizabeth Police Station an hour and a half after his arrest. The prosecutor conceded that there was nothing directly in the interview that proved the accused was not telling the truth. The prosecution also conceded that this was not a matter of competing versions of evidence. Instead, the prosecution submitted that the court should reject the accused’s denials and accept the evidence of [N] as being reliable and truthful beyond reasonable doubt. Defence closing address 162 Defence counsel’s overarching submission was that there may not have been opportunities for the alleged offending to occur in the first place and if these opportunities were available what is alleged to have followed did not occur: just because the opportunity to offend has become available, does not mean that the offending has been proved. Accused’s record of interview 163 It was defence counsel’s submission that the accused’s responses and demeanour during the interview demonstrated that he had nothing to hide. Defence counsel noted the accused’s willingness to answer questions from police, including those that related to potentially sensitive topics, such as those regarding his consumption of alcohol and whether he watched pornography. Defence counsel also highlighted the accused’s willingness to seek clarification of the police’s questions. 164 In relation to the third incident, defence counsel raised that [ZM]’s reliability is bolstered by the fact that she follows a particular way of life, with certain customs and that anything that diverged from this routine would have been memorable to her. Therefore, the fact that [ZM] could not recall the accused taking the complainant to the cinemas or out of the house whilst [AR] was in Iran was telling. 165 It was the defence position that [ZM] was ‘watching [N] like a hawk’. Defence counsel submitted that [ZM]’s evidence provided a basis for the Court to find that the third incident never occurred, because [ZM] would never permit her daughter [Z] to be taken by the accused alone whilst [AR] was in Iran. 166 Defence counsel conceded that there may be an alternate explanation for [ZM]’s evidence, in that she did not want to be viewed as a bad parent, but that the -- 31 of 36 -- [2024] SADC 145 30 correct scenario was that [ZM] would not allow [N] to be alone with the accused whilst [AR] was in Iran. [AR]’s evidence 167 Defence counsel submitted that [AR] was aware that the accused drank alcohol from as early on as when he lived at the Klemzig address, and how [AR]’s evidence was that she stopped him from offering [N] alcohol. It was submitted that this was an ongoing, underlying, concern following this revelation. Defence argued that [AR]’s evidence regarding the accused’s tendency to only drink at night is unpersuasive on the basis that his habit of drinking at night does not preclude him from drinking during the day. 168 In relation to the incident where the accused lifted [N]’s top and made a comment about her growth, defence counsel submitted that this was a recent invention, and that it did not align with [AR]’s evidence that she was committed to her sister’s protection. Brazen nature of the offending 169 In relation to the first incident, defence counsel submitted that the alleged act as described by the complainant was so brazen that it amounts to being incredulous and unrealistic. This is because when [AR] went shopping, a ‘clock of opportunity’ began counting down, and the accused did not hasten to perform the alleged acts. He also performed them in the loungeroom, which was by the front door, instead of in a secluded room. 170 In relation to the second incident, it was again defence counsel’s submission that the alleged act as described by the complainant was so brazen that it amounts to being incredulous and unrealistic. Counsel noted the high risk of exposure due to the layout of the house, and the possibility of [Z] and [AR] observing the accused touching [N] on the couch with pornography playing simultaneously. 171 Similarly, Defence counsel noted [AR]’s tendency to have either the bedroom door open or closed and the proximity of the bedroom to the loungeroom (although noted the absence of available distance measurements) and how it was likely possible for [AR] to hear [N] being sexually abused or crying from the loungeroom. 172 It was defence counsel’s submission that the credibility and reliability of [N] could not be accepted in order for the charge to be proved beyond reasonable doubt. Analysis 173 I have set out in these reasons a synopsis only of the evidence in respect of the matter. I have also summarised some of the respective submissions of counsel. 174 The prosecution case is solely reliant upon the evidence of the complainant being accepted as both truthful and reliable beyond reasonable doubt. -- 32 of 36 -- [2024] SADC 145 31 Cultural and chronological considerations 175 In an assessment as to whether the prosecution has proved beyond reasonable doubt whether two or more unlawful sexual acts occurred, the circumstances of this case require careful assessment of certain cultural and chronological considerations that are of particular significance in this case. 176 It is undisputed that [N]’s family are devoutly religious and observe strict adherence to the Muslim faith. [N], [AR] and [AM] confirmed that adherence to dogma was non-negotiable. This was especially so in terms of the consumption of alcohol. 177 On the evidence of [AR] and [ZM], the discovery that the accused consumed alcohol had a significant adverse impact upon their assessment of his character generally. 178 The discovery of the accused’s alcohol consumption was culturally deplorable and led to intense scrutiny of his actions generally. For practical purposes, [AR] was wary of the accused being left in the company of [N] following the revelation of his consumption of alcohol. [ZM], who on all of the evidence could properly be characterised as the matriarch of the family, strictly forbade [N] and the accused being left alone. This, according to [ZM] was non-negotiable. 179 I accept [ZM]’s evidence on this topic. [ZM] was clearly a devout, stoic and influential presence within the family. 180 Against that background, a consideration of chronology becomes important. 181 The relevant chronology is: 18 October 2016 Accused and [AR] marry. Shortly after this, the accused and [AR] move into the Klemzig address. [AR] discovers the accused offers [N] alcohol at this address. 11 June 2019 [AR] travels to Iran without the accused. 11 August 2019 [AR] returns from Iran. September 2019 [AR] and the accused separate. 182 [AR] confirmed whilst she and the accused were living at the Klemzig house, she became aware that the accused had offered [N] alcohol. From that point forward, [AR] made efforts to stop the accused from offering [N] alcohol. As a consequence of this, [AR] spoke to her mother to ensure that the accused was not to be left alone with [N]. Whilst [AR] did not disclose to her mother the reason for this prohibition, [AR] confirmed that this conversation was precipitated by the accused offering [N] alcohol. -- 33 of 36 -- [2024] SADC 145 32 183 It follows that [AR]’s discovery of the accused offering [N] alcohol took place whilst [AR] and the accused were living at Klemzig, namely from about late 2016. 184 On an assessment of all of the evidence, including the fact that [AR] did not disclose to her mother why [N] was not to be left in the company of the accused alone, I find that the conversation between [AR] and her mother about [N] not being left alone with the accused took place whilst [AR] and the accused were living at the Klemzig address. 185 I accept [AR] became aware that the accused offered alcohol to [N] at the Klemzig address. Clearly, this was of concern to [AR]. Whilst [AR] did not disclose at that time the reasons for her concerns to her mother, concerns were expressed nevertheless. 186 On 11 June 2019, [AR] left to travel to Iran, leaving the accused alone at the Paralowie address. The entire family, including [ZM], were aware of this situation. The relevant period of [AR]’s absence overseas was from 11 June 2019 to 11 August 2019. 187 During this period of [AR]’s absence, I accept the evidence of [ZM] that the accused would regularly attend the family home of [N] and [ZM] to collect food. This was culturally appropriate. However, what was not culturally appropriate was the ability of the accused, as an unaccompanied male who was subject to strict sanctions by [ZM], to collect [N] and take [N] for an unsupervised outing without a chaperone as described by [N] on the third occasion of abuse. 188 On [N]’s evidence as to this third occasion of abuse, the accused requested to [ZM] that he be permitted to take [N] to the cinema. Importantly, [N] makes no reference to the accused stating to [ZM] that he was taking [N] to his house, under the pretence of the accused’s niece being there (the niece visit). [ZM] also relevantly identified that the occasion, with reference to the niece, occurred when [AR] was at work, hence not when [AR] was in Iran. 189 [ZM] identified the niece visit as being pivotal to intensifying her adverse assessment of the accused. This was because, insofar as [ZM] was concerned, there was an occasion when the accused collected [N] alone under the false guise of his niece being present at the home of the accused, in the absence of [AR]. According to [ZM], this ruse was exposed and [ZM] discovered to her chagrin that the accused and [N] were alone. 190 Given that the third incident of sexual interaction described by [N] occurred whilst [AR] was in Iran, it follows that the niece incident must have occurred before then. [ZM] was outraged by the niece incident. As a consequence, her suspicions of the accused intensified. 191 Having regard to the chronology, the suspicions entertained by [ZM] and her stated response to those suspicions, I find it inherently unlikely that [N] would -- 34 of 36 -- [2024] SADC 145 33 have been permitted to leave her family home unaccompanied with the accused as she described on the third occasion of the alleged sexual abuse. Whilst there are aspects of [ZM]’s evidence that indicate a lack of precision in terms of her ability to recollect the sequence of events, an assessment of all of the evidence reveals: 1. [AR] became aware of the accused consuming alcohol and offering alcohol to [N] whilst they were living at the first house; 2. Whilst [AR] did not disclose to [ZM] the reasons for her concern, namely alcohol consumption, [AR] suggested to [ZM] that the accused should not be left unsupervised with [N]; 3. Insofar as [ZM]’s suspicions towards the accused are concerned, the niece visit must have occurred before [AR] departed for Iran, as the accused stated to [ZM] that [AR] was at work; and 4. As a consequence of this, [ZM]’s suspicions of the accused were further heightened. 192 Having regard to all of the evidence, it is inherently implausible that [ZM] would have permitted [N] to leave the house alone in the company of the accused while [AR] was overseas so as to provide the opportunity for the third act of abuse to have occurred. 193 I find that at the relevant time [ZM] was deeply suspicious of the accused. Her perceptions of his behaviour were that he was culturally and religiously disrespectful and was not to be trusted with [N] alone. Against that background, [ZM] would never have permitted her young daughter to be in the company of the accused without supervision whilst [AR] was overseas. 194 This inconsistency cannot be explained by a mistake, either on the part of [N] or [ZM]. The absence of [AR] overseas, the evidence of [N] as to the timing of the occurrence of the third incident and her evidence that [ZM] permitted her removal from the family home unchaperoned with the accused cannot be reconciled with the position of [ZM], whose evidence is supported by the surrounding circumstances described above. This excludes the possibility of mistake on the evidence of [ZM]. It follows that I accept the evidence of [ZM] on this topic. 195 This finding creates a significant problem as to the reliability and credibility of [N]’s evidence. It is a problem arising on [N]’s evidence that is not peripheral. It excludes the possibility that one of the three particularised episodes of abuse took place. On the complainant’s version, this was the most serious allegation of abuse, which, given an assessment on the whole of the evidence, cannot be proved to have occurred beyond reasonable doubt. 196 It is not possible to quarantine this defect in [N]’s evidence from the other alleged acts of abuse. Whilst I accept that sexual offending against children can often occur in the most brazen circumstances, the adverse impact of the Court’s -- 35 of 36 -- [2024] SADC 145 34 finding regarding [N]’s evidence as to the third incident causes difficulty with an acceptance as to whether the first and second incidents occurred beyond reasonable doubt. 197 Whilst there was nothing in the demeanour of the complainant in the course of examination-in-chief or cross-examination which caused me any concern about her credibility or reliability, it is vital that demeanour and presentation not be given undue weight in an assessment of honesty and reliability. Any determination of those issues can only be made having regard to the whole of the evidence, the criticisms raised by defence in the course of the trial, and whether there is support for her evidence. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of the complainant’s evidence, it is trite to say that the prosecution case stands or falls on an acceptance of her evidence as to whether the sexual acts took place, beyond reasonable doubt.278 198 After carefully considering the record of interview of the accused, noting the prosecution submission that the accused had effectively been forewarned of the impending interrogation and the submission that this could account for his apparent measured responses, having regard to the entirety of the evidence, there is nothing that would cause me to reject the denials of the accused as not being reasonably possibly true. Conclusion 199 Having reviewed all of the evidence given at trial and the exhibits, in particular having regard to the significant flaws that arise on the complainant’s evidence as to the third particularised occasion which adversely impact on her evidence generally, the inability to reject the denials of the accused as being reasonably possibly true and bearing in mind the very high burden that rests upon the prosecution, I am left with a doubt that the accused intentionally committed two or more unlawful sexual acts during the course of the relationship with the complainant. 200 I find the accused not guilty. 278 Murray v The Queen (2002) 211 CLR 193 [57]. -- 36 of 36 --