[2026] SADC 82

Prosecution: R Counsel: MS L BOORD SC - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: JAS Counsel: MR B MCCLOUD - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 27/10/2025 to 31/10/2025 File No/s: DCCRM-25-019311 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 JAS Criminal Trial by Judge Alone [2026] SADC 82 Reasons for the Verdicts of her Honour Judge Matteo 16 July 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES The defendant is charged with four counts of aggravated indecent assault (counts 1-4) and one count of unlawful sexual intercourse with a person under the age of 14 years (count 5), which offences he is alleged to have committed against his nine-year old daughter over the course of a parental access visit weekend in September 2024. The defendant was tried by judge alone. The alleged offending came to light when the complainant made a disclosure to her mother in the context of expressing an unwillingness to return to the defendant’s care the following fortnight. The complainant’s evidence was admitted in the form of two prescribed interviews conducted by a police officer pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA), and she gave sworn evidence at the trial. The prosecution led evidence about internet searches and history and social media site access on the defendant’s mobile phone concerning the subject matter of incestuous sexual activity between fathers and daughters, which was said to reveal an interest in such conduct and a tendency on the part of the defendant to act upon that interest, making it circumstantially more likely that he committed the offences as alleged by the complainant. Further, this evidence was said to be relevant to an assessment of the improbability of the complainant fabricating an allegation of sexual acts at the hands of her father where she was ignorant of the existence of the material revealing this interest. The defendant did not give or call evidence. Verdicts: - The defendant is guilty of counts 1 to 4. - The defendant is not guilty of count 5. -- 1 of 51 -- Criminal Law Consolidation Act 1935 (SA) ss 5(1), 5AA(1)(g), 49(1), 56(1)(d), 57(2); Summary Offences Act 1953 (SA) pt 17 div 3, s 74EB(c); Evidence Act 1929 (SA) ss 9(1), 13BA(1), 13BA(5), 29C, 29C(1), 29C(2), 34M(3), 34M(4)(a), 34M(4)(b), 34M(4)(c), 34P(1), 34P(2)(a), 34P(2)(b), 34P(3); Summary Offences Regulations 2016 (SA) reg 23(7)(b), referred to. R v Dookheea (2017) 262 CLR 402; Douglass v The Queen (2012) 86 ALJR 1086; R v C, M (2014) A Crim R 21; TM v The King [2024] SASCA 5; The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; R v Nieterink (1999) 76 SASR 56; Johnson v The Queen [2018] HCA 48; Heng v The King [2025] SASCA 57; R v J, JA (2009) 105 SASR 563; Weragoda v The Queen [2021] SASCA 123; R v Heinze [2017] SASCFC 155; Sadler v The King [2023] SASCA 63; Kane (A Pseudonym) v The King [2024] SASCA 70; BQ v The King (2024) 279 CLR 124, considered. -- 2 of 51 -- R v JAS [2026] SADC 82 Overview of the matter 1 The defendant, who I will refer to in these reasons as ‘JAS’, is charged with numerous sexual offences which he is alleged to have committed against his nine-year-old daughter, ‘EMS’, over a weekend in September 2024. The defendant elected for trial by judge alone. 2 The defendant is charged with five offences, consisting of four counts of aggravated indecent assault1 and one count of unlawful sexual intercourse with a person under the age of 14 years.2 3 The particulars of the offences with which the defendant is charged are as follows:3 Count 1 – Aggravated indecent assault Particulars [JAS] between the 26th day of September 2024 and the 29th day of September 2024 at Craigmore in the said State, indecently assaulted [EMS], a person under the age of 14 years, by touching her genitals. Circumstances of aggravation It is further alleged that the offender committed the offence knowing that [EMS] was a person with whom he was in a relationship. Count 2 – Aggravated indecent assault Particulars [JAS] between the 26th day of September 2024 and the 29th day of September 2024 at Craigmore in the said State, indecently assaulted [EMS], a person under the age of 14 years, by causing her to touch his penis. [Circumstance of aggravation alleged as per count 1] Count 3 – Aggravated indecent assault Particulars [JAS] between the 27th day of September 2024 and the 30th day of September 2024 at Craigmore in the said State, indecently assaulted [EMS], a person under the age of 14 years, by touching her genitals. [Circumstance of aggravation alleged as per count 1] 1 Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), s 56(1). 2 CLCA, s 49(1). 3 Information revision 1 (FDN 46). -- 3 of 51 -- [2026] SADC 82 2 Count 4 – Aggravated indecent assault Particulars [JAS] between the 27th day of September 2024 and the 30th day of September 2024 at Craigmore in the said State, indecently assaulted [EMS], a person under the age of 14 years, by causing her to touch his penis. [Circumstance of aggravation alleged as per count 1] Count 5 – Unlawful sexual intercourse with a person under 14 years Particulars [JAS] between the 27th day of September 2024 and the 30th day of September 2024 at Craigmore in the said State, had sexual intercourse with [EMS], a person under the age of 14 years, by performing an act of cunnilingus upon her. 4 The prosecution case is that counts 1 and 2 were committed on the evening of Friday, 27 September 2024 or early morning of Saturday, 28 September 2024, and that counts 3, 4 and 5 were committed on the following evening of Saturday, 28 September 2024 or early morning of Sunday, 29 September 2024. These consecutive evenings were referred to in the trial as ‘the Friday night’ and ‘the Saturday night’. 5 At the time of the alleged offences, the defendant and EMS’s mother, who I will refer to as ‘SS’, were separated. They also shared another, younger child, who I will refer to by the pseudonym ‘Billy’. On the prosecution case, the alleged offences occurred in the course of a fortnightly access visit when EMS and Billy spent the weekend with the defendant. It was the final weekend EMS and Billy spent with their father as EMS made a complaint to SS about the alleged offending before she and Billy were due to return for a further access visit a fortnight later on 11 October 2024. 6 EMS’s evidence was admitted in the form of two audio visual recordings of interviews conducted pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA) (‘SO Act’), which I will refer to as ‘prescribed interviews’, and EMS gave sworn evidence and was cross-examined at the trial. SS also gave evidence. 7 The prosecution led evidence about internet searches and history and social media site access on the defendant’s mobile phone concerning the subject matter of incestuous sexual activity between fathers and daughters, which was said to reveal an interest in such conduct and a tendency on the part of the defendant to act upon that interest, making it circumstantially more likely that he committed the offences as alleged by EMS.4 Further, this evidence was said to be relevant to an assessment of the improbability of EMS fabricating an allegation of sexual acts at 4 Notice of intention to adduce discreditable conduct evidence – amended version 2 (FDN 47), item 3. -- 4 of 51 -- [2026] SADC 82 3 the hands of her father where she was ignorant of the existence of the material revealing this interest. 8 As part of its case, the prosecution tendered a report of a Professor of Psychology, Dianna Kenny, concerning child development and child behaviour, certain opinions about which are admissible pursuant to s 29C of the Evidence Act 1929 (SA) (‘Evidence Act’). 9 The defendant did not give or call evidence. 10 The issue for determination is whether the acts constituting the alleged offences occurred. Principles of law to be applied 11 The defendant is presumed to be innocent of the offences. The defendant bears no onus. The prosecution bears the onus of proving the defendant’s guilt of any offence beyond reasonable doubt. Proof beyond reasonable doubt is the highest standard of proof known to the law.5 It is not sufficient for the prosecution to prove a suspicion of guilt or that the defendant is possibly or probably guilty. The prosecution must exclude as a reasonable possibility any matter raised by or on behalf of the defendant which might affect proof of the offence/s. 12 I draw no inference against the defendant for exercising his right to remain silent at trial. I do not treat the defendant’s silence as constituting any admission or as a making the prosecution’s evidence stronger or more persuasive. I direct myself that it is at all stages for the prosecution to prove an offence, and each element constituting an offence, beyond reasonable doubt. 13 I am to bring an open and unbiased mind to my consideration of the evidence and the ultimate question of whether any offence is proved by the prosecution beyond reasonable doubt. I am to consider the evidence and arrive at verdicts without sympathy for, or prejudice against, any party involved in the proceedings. 14 In assessing the evidence given by witnesses in the trial, I am to consider both their truthfulness and their reliability in determining whether I can rely upon the evidence given. I may also consider how the evidence of a witness fits with other evidence I find proved. I may accept or reject all or part of a witness’s evidence. 15 I am to consider each offence separately. If I am satisfied to the requisite standard of the commission of an offence by the defendant, that does not translate to the defendant being guilty of any other offence. 5 R v Dookheea (2017) 262 CLR 402, [41] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ). -- 5 of 51 -- [2026] SADC 82 4 16 I am required to determine whether the evidence taken as a whole proves the elements of an offence beyond reasonable doubt.6 17 I propose to indicate further specific principles of law which I am required to apply in the course of my consideration of the evidence. Elements of the offences Aggravated indecent assault 18 The elements of the offence of indecent assault are, in the context of this case: 1. The defendant touched EMS. 2. The defendant intended to touch EMS. 3. EMS did not consent to the touching. 4. The touching occurred in circumstances of indecency. 19 A person under the age of 17 is unable to consent to an indecent assault.7 20 A touching is indecent if it involves a sexual connotation. I am to determine whether a touching is indecent by reference to prevailing community standards of what is considered to be indecent.8 21 In order to prove an aggravated offence of indecent assault, the prosecution must prove beyond reasonable doubt, additionally to the elements of indecent assault identified above, that EMS was under the age of 14 years at the time of the offence.9 As noted, the prosecution further alleges that each of counts 1 to 4 was aggravated by the defendant committing the offence knowing that EMS was a person with whom he was in a relationship.10 Unlawful sexual intercourse with a person under 14 years 22 The elements of the offence of unlawful sexual intercourse are, in the context of this case: 1. The defendant had sexual intercourse with EMS. 2. EMS was under the age of 14 years at the time. 6 Douglass v The Queen (2012) 86 ALJR 1086 [12] (French CJ, Hayne, Crennan, Kiefel, Bell JJ); TM v The King [2024] SASCA 5, [71] (Doyle and Bleby JJA, Kimber AJA). 7 CLCA, s 57(2). 8 R v C, M (2014) A Crim R 21. 9 CLCA, s 56(1)(d). 10 CLCA, s 5AA(1)(g). -- 6 of 51 -- [2026] SADC 82 5 23 Sexual intercourse includes any activity consisting of or involving cunnilingus.11 Evidence of EMS Forms of evidence and directions about special arrangements 24 As I have indicated, the evidence of EMS comprised in part of audio visually recorded prescribed interviews. Those interviews of EMS were conducted by the same police officer, Senior Constable Peter Finey (‘SC Finey’), on 9 October 2024 and 6 March 2025, and were admitted in the trial pursuant to s 13BA(1) of the Evidence Act.12 EMS was further examined, cross-examined and re-examined with permission granted pursuant to s 13BA(5) of the Evidence Act.13 25 EMS was born in early October 2014.14 On the weekend of the alleged offences, she was nine years old, less than a week from turning ten. At the time of her first prescribed interview, EMS had turned ten one week before. At the time of her second prescribed interview, EMS was ten years and five months old. 26 At the time of giving evidence, EMS was aged 11 years and just under one month. After conducting an inquiry directed at determining EMS’s understanding of the obligation to be truthful entailed in giving sworn evidence, I formed the view that the presumption that she was capable of giving sworn evidence was not displaced.15 27 As to the admission of EMS’s evidence in the form of the audio visually recorded prescribed interviews, I draw no inference adverse to the defendant, and I do not allow the form of the evidence to influence the weight to be given to it. EMS gave evidence at the trial by means of closed-circuit television and with a canine court companion for support. I am not to allow those special arrangements to influence the weight that I give to EMS’s evidence, nor am I to draw any adverse inference against the defendant from the fact that that those arrangements were in place. 28 I direct myself that the evidence is that which I see and hear in the audio visual recordings of the prescribed interviews, being exhibits P116 and P217. For ease of reference to parts of the evidence in these reasons, I will identify the questions and answers by reference to the transcripts of the prescribed interviews, being exhibits P1A18 and P1B19, which I have used as aides memoire and chronological guides only. To the extent that I include excerpts from the prescribed 11 CLCA, s 5(1). 12 Ruling 27 October 2025, T 9. 13 Rulings 27 October 2025, T 10; 28 October 2025, T 24; 29 October 2025, T 76, 101. 14 Exhibit P20 (statement of agreed facts), paragraph [1]. 15 Evidence Act 1929 (SA) (‘Evidence Act’), s 9(1); Ruling 28 October 2025, T 30. 16 USB containing audio visual record of first prescribed interview on 9 October 2024. 17 USB containing audio visual record of second prescribed interview on 6 March 2025. 18 Transcript of first prescribed interview on 9 October 2024. 19 Transcript of second prescribed interview on 6 March 2025. -- 7 of 51 -- [2026] SADC 82 6 interviews in these reasons, the excerpts reflect what I see and hear in the recordings themselves. First prescribed interview 29 On the prosecution case, EMS’s first prescribed interview took place just under two weeks after the alleged offending, and the day after EMS made a disclosure to her mother. 30 After asking questions directed at establishing EMS’s understanding that she must tell the truth,20 and about a topic unrelated to the alleged offending and which I took to involve an exercise in building rapport with the child, SC Finey asked EMS what she had come to talk to him about. In response to this question, EMS stated:21 My Dad’s been like touching me in like wrong areas, and I’m not pretty sure why. He just did it out of nowhere, and it, I was half-asleep half-awake. So I was pretty shocked, and like I tried to, like move to pretend I was asleep, so then he wouldn’t notice I was awake. And then on the second night that he did the exact same thing. In the morning, I woke up at five thirty and I went outside, and somehow my Dad heard me, so he went out. And then I sat back in the area we were sleeping in, and I just watched tv for the rest of the morning. 31 SC Finey asked EMS if her father touching her in wrong areas happened one time or more than one time, in response to which EMS stated:22 This was the first time he did it. But also on the second night, on Saturday night, he did it again. 32 It may be seen that EMS’s introductory answers to this point alleged touching of her in ‘wrong areas’ on two nights, the second night being a Saturday night. As a preliminary matter, I take EMS’s assertion of her father doing ‘the exact same thing’ on the second (Saturday) night as indicating that her father again touched her in ‘wrong areas’. I do not take EMS’s use of the words ‘the exact same thing’ as being so precise as to intend to convey that the very same conduct, in terms of the type/s of touching, was repeated on consecutive nights. 33 SC Finey set about eliciting the detail of EMS’s account by asking a question which was framed in the following way:23 Alright. Let’s talk about the last time Dad touched you in wrong areas. Start from the beginning and tell me everything that happened the last time Dad touched you in the wrong areas. Okay. So start from the beginning and tell me everything that happened the last time Dad touched you in wrong areas. 20 Summary Offences Act 1953 (SA), s 74EB(c); Summary Offences Regulations 2016 (SA), reg 23(7)(b). 21 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 78. 22 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 80. 23 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 81. -- 8 of 51 -- [2026] SADC 82 7 (emphasis added) 34 EMS proceeded to give an account about events commencing on Friday night ‘including Saturday’, which I will summarise shortly. I have to observe that this eliciting question with its emphasis on the ‘last time’, in the context of an allegation of touching on consecutive nights, was apt to create confusion. Friday night 35 EMS explained that she and Billy went to their father’s house on Friday night after Sports Day, and that it was their father’s weekend for access. She said that her father picked them up from Sports Day and that they went home with him. She said that their mother dropped her and Billy’s stuff off. EMS described being given her birthday presents for her upcoming birthday and her father giving her and Billy money to buy something at the shop. 36 EMS described watching a movie, ‘Migration’, and falling asleep. She described the area in which she, Billy and her father slept as a little dining area near the kitchen. I interpolate here that other evidence in the trial established that at this time, the defendant was residing with his female cousin in a house at Craigmore. I will refer to the area in which EMS said that she, Billy and her father slept as ‘the sleeping area’. EMS described the sleeping area as being near the back yard, having a wooden plank floor, a television and two (single seater) couches next to a wall. When asked where they would sleep, EMS described the bed as not being big enough and so they would use three couch cushions which were obtained from a couch in her father’s cousin’s room. EMS said that her father and Billy slept on the bed, and that she slept on the couch cushions ‘like near the bed’.24 EMS said that she liked to sleep on the couch cushions because they were comfortable. What became apparent from evidence led in the trial, including by reference to photographs of the Craigmore house, is that what EMS referred to as a bed was a mattress laid on the floor, perpendicular to a two-to-three seater couch in a converted dining room. It will be necessary to return to the topic of sleeping positions, but I note that the totality of EMS’s evidence on this topic in the first prescribed interview was that she slept on couch cushions near the bed (mattress). 37 EMS said that she fell asleep watching the movie, and that the following occurred:25 EMS And when I fell asleep that’s when he started to like, touch me. SC Finey So you fell asleep? EMS Yep. And then I woke up and that’s when, like – but I pretended I was asleep and that’s when he, like started to touch me. 24 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 198. 25 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 106-120. -- 9 of 51 -- [2026] SADC 82 8 SC Finey Okay. Touch you? Tell me about him touching you. EMS He was touching me, like all around here [indicating her chest], and all down there [indicating her lower body]. SC Finey Yep. EMS And I’m just went in, like a weird feeling. Like all my weird emotions all together, and that’s when, he like started to, like also touch me again. SC Finey Okay. Tell me about him touching you again. EMS Um. SC Finey Tell me everything about him touching you. EMS So during the, like during night time when I woke up, like he was just, was like touching me, like all down there [hand gesture not visible as under desk], and up here, up there. SC Finey And tell me what you mean by ‘down there’. EMS Ah, pretty much like sticking his, like hand under my pants and under my undies, and that’s when he started to like touch me, and I didn’t feel safe. SC Finey So you said sticking his hand under your pants and undies. Tell me about that. EMS So he, like did it out of nowhere and he just went like around, just like sticking a hand under here – but he was like fully awake. And that’s when he, like started to, like put his hand against my private part. And he, like, I don’t know what he did with it, but like, it was, it just didn’t feel safe for me… 38 In response to further questioning, EMS said that she fell asleep at around 7.30pm, that Billy fell asleep after her, that he was out cold sleeping and that she slept until 11pm or 12am, but she was unsure of the time because there was no clock in the room. EMS said, as I understood her interview, that at 7.15pm, her father had said that he was going outside to clean off and water the garden. EMS said, as I understood her interview, that when she woke at 11pm or 12am, it was to her father ‘just randomly touching [her].’26 She described the random touching to which she awoke as follows:27 EMS He was pretty much like, sorry, it’s hard for me to say this. SC Finey Take your time. Take your time. 26 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 218. 27 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 226-250. -- 10 of 51 -- [2026] SADC 82 9 EMS It was pretty much, like he was like a baby and I was like feeding him. SC Finey He was a baby? EMS Yeah pretty much. And I was in a way of, like breastfeeding him somehow. I know it’s like an awkward thing to say, but it’s the only way I can, like, explain it. SC Finey So tell me, tell me about that, how you, how he was a baby and you were feeding him. So tell me more about that. EMS I, after he, like, it’s the reason why he stopped is because, like I moved, and like, ah, just like you’re saying to someone, like, get off me, and like trying to push them away from you. And that’s when he stopped … SC Finey Okay. And when he went down there, tell me the very next thing that happened. EMS That’s when he started to, like go under my pants and under my undies and – just, like just rubbing it and – and like – and then he stopped and that. And then he pulled down his pants and grabbed my hand and made me touch his thing. (certain interjections by SC Finey omitted) 39 It may be seen from the above passage that EMS described from the moment of waking that the following events occurred in sequence: ‘breastfeeding’, then rubbing under her undies, then grabbing her hand and making her touch his ‘thing’. EMS clarified that ‘thing’ is ‘private part’.28 When SC Finey incorrectly put back to EMS that the defendant pulled down his pants and grabbed his thing, EMS confidently corrected him to say that the defendant grabbed her wrist, pulled it towards his thing and just made her touch it.29 She said that she was pretending that she was asleep. 40 EMS’s account went on in answer to further questioning from SC Finey:30 SC Finey Tell me the very next thing that happened. EMS He pulled his pants up again and then he, like just, like probably, like put, like – I don’t know what he did, but like he putted his mouth like somewhere on my neck just here [indicates side of neck] – and then he slobbered all over my face like a snail. And 28 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 262. 29 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 263. 30 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 267-284. -- 11 of 51 -- [2026] SADC 82 10 then he tried to make out with me. But like, I kicked around and he stopped. SC Finey So you kicked around and he stopped? EMS Yep. SC Finey Yep. Okay. And what happened next. EMS He like pulled down my pants including my undies and then he like started to, like, it feels so weird – I’m so sorry … He started to, like. [Lengthy pause] He started to like just, like just, it sounds disgusting but he just slobbered on it and – SC Finney Slobbered on it? EMS Yeah. And then licked it back up. SC Finey When you say ‘slobbered on it and licked it back up’, when you say ‘on it’, can you tell me what ‘on it’ is? EMS My private part. (certain interjections by SC Finey omitted) 41 EMS said that the defendant licked her private part for probably five seconds, then stopped, went to the toilet, washed his hands and went back to sleep. She said that she then went to the toilet, washed her hands and went back to sleep, waking up at 5.30am on the Saturday morning. She said that on the Saturday morning, she went outside and the defendant came out and told her to get back inside and watch television as it was cold. She said that she went to a friend’s party that day, and that ‘Saturday night he did the exact same thing again’.31 42 Before moving on to the events of the Saturday night, SC Finey undertook something of a recap of EMS’s account of the events of the Friday night and asked targeted questions about EMS’s account to that point. In this clarifying phase of the interview, EMS said that the defendant rubbed her private part for ‘probably like three seconds’ and that he did so in the following manner:32 He grabbed his middle finger and his pointing finger and that’s when he started, started to rub against my private part … He like rubbed my private part and then I think he like sniffed it. 43 EMS said the defendant then moved on to the ‘breastfeeding’, where he was on his knees ‘like a baby crawling’ and ‘started to like pretend [she] was his Mum and [she] was breastfeeding him’.33 She said that while he was on his knees, the 31 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 300. 32 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 318-320. 33 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 328-332. -- 12 of 51 -- [2026] SADC 82 11 defendant started to lick across her chest on her skin under her clothing, then stopped and moved ‘to the area down there,’34 indicating her lower body. 44 EMS was asked what she was wearing. She said that she was tired and could not be bothered putting on her pyjamas. She said she was wearing a crop top. 45 Although the recap suggested that the ‘breastfeeding’ followed the touching of her private part, the sequence was not clarified by the interviewer. 46 Following a later break in the interview, which I mention below, EMS said in answer to further questioning that when her hand was on the defendant’s ‘thing’, she tried to pull her hand away, but his hand was really strong and he just kept it there for a good five seconds. Her hand was ‘pretty much rubbing [his private part]…against the side and on top’,35 and then he let go of her hand. EMS said that the reason she washed her hands was to try and get all the germs off. 47 In summary, EMS’s account was of the defendant ‘breastfeeding’, touching her private part, making her touch and rub his private part, trying to ‘make out’ with her and licking her private part on the Friday night. Saturday night 48 As noted, EMS said that the defendant ‘did the exact same thing again’ on the Saturday night. EMS gave this account of the events of the Saturday night:36 SC Finey So tell me everything you can from the Saturday night into the next day. EMS He did the exact same thing again. SC Finey Yep. EMS And I tried to like move to get him off me. But I couldn’t move because he was like pinning me down on the bed by my shoulders. SC Finey Mhmm. EMS And then that’s when he stopped, went toilet and went back to bed. SC Finey Okay. So on the Saturday night, tell me everything that’s happened from when you went to sleep. EMS It was around the exact same time as Friday. And he like repeated it again as on the Friday night. 34 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 344-346. 35 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 503-515. 36 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 355-366. -- 13 of 51 -- [2026] SADC 82 12 SC Finey Yep. And when you say ‘repeat it’, can you tell me what you mean by ‘repeated it’? EMS Like how he touched me. How he like, grabbed my hand and made me touch his private part. (certain interjections by SC Finey omitted) 49 Following this exchange, there was a break in the interview in which SC Finey left the room and SS entered. Only benign, unrelated conversation took place between SS and EMS during this time. On the resumption of the interview, in response to further targeted questions, EMS elaborated that on the Saturday, she had worn a new dress that the defendant bought her to her friend’s party, and that she had been picked up from the party by the defendant. She described a trip to the park and returning back home. Of the events of the evening, EMS stated that they watched a movie and she again fell asleep in the dining room. She said that Billy also fell asleep, and that was when the defendant ‘started to touch [her]’.37 50 EMS provided the following account of the touching on the Saturday night:38 SC Finey Tell me everything about him touching you. EMS He was like, rubbing against down there [gesturing around her lower abdomen]. He licked across my chest here, and he like, did everything else. SC Finey Everything else? Tell me about everything else. EMS Like he was slobbering all over my face, trying to make out with me. But he was drinking that night too. SC Finey So he was drinking that night? EMS Yep. SC Finey What about the first night? EMS He was also drinking. SC Finey Yep. Okay. So he slobbered all over you. So tell me about him rubbing you down there...on the second night, Saturday/Sunday. EMS Well…he grabbed his two fingers and rubbed against my private part. SC Finey Rubbed? Can you? 37 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 555. 38 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 574-623. -- 14 of 51 -- [2026] SADC 82 13 EMS Like pretty much you’re rubbing your fingers together to wash your hands. SC Finey And on your private parts? Was it – how did he do that? How did he rub your private parts? Or was it above your clothing or below your clothing? EMS Below. SC Finey Below your clothing. And what were you wearing? EMS I was wearing, ah, so track pants…black. SC Finey And tell me how long he was rubbing? EMS Five seconds. SC Finey …And where was he rubbing? EMS Like on top of my private part, and like underneath my private part … pretty much like where you go pee. … SC Finey And then after he was rubbing what happened, what’s the very next thing that happened? EMS He, he, that’s when he pulled down his pants and made me touch his private part. SC Finey Yep. Tell me what happened next? EMS That’s when he like slobbered on my private part … like down there [gesturing around her lower abdomen]. SC Finey … How long? EMS Five seconds. SC Finey Yep. And when you say ‘slobbered’, tell me what you mean by ‘slobbered’. EMS Like, licked. SC Finey … With his? EMS Tongue. (certain interjections by SC Finey omitted) 51 EMS went on to say that the defendant then went to the toilet, washed his hands and went back to sleep, and that she went to the toilet and went to sleep. EMS said that she woke up at 5.00am and went outside. She said the defendant told her to get back inside and watch some television as it was too cold. She said -- 15 of 51 -- [2026] SADC 82 14 that she pretty much chilled out that day, and that she and Billy were picked up by their mother to return home. 52 EMS said in the course of the interview that when the defendant had started to touch her on the Saturday night, she said to herself that she did not feel safe and wanted to go home. She said she wanted to call her mother but couldn’t as her mother was already asleep and gets grumpy when she is awoken. EMS said that she just tried to get through the night. She said that during the day, she had said to herself, ‘Right, just one more night and I’m home safe. No more of this stuff.’39 53 Putting to one side the assertion of the defendant ‘doing the exact same thing’ on the Saturday night, on my interpretation of EMS’s account in the first prescribed interview, she explicitly asserted that the Saturday night involved the defendant touching and rubbing her private part, making her touch his private part, trying to ‘make out’ with her and licking her private part. Complaint to her mother 54 At quite an early point in the interview, and in connection with providing her initial account of touching by the defendant the ‘last time’ and not feeling safe, EMS said that she had informed her mother as follows:40 EMS And the other day I told my Mum I didn’t want to go to Dad’s. And she was like, ‘Why is that?’ And last night we went for a walk around the block, and I told her the reason why. And she was just in complete shock. She was like, ‘You know this is like serious?’ And that’s when I started to cry and saying, ‘I am serious Mum. I’m not joking. I was like awake when he did it, and I just didn’t feel safe.’ And she was like, ‘Alright, we’re going to the cops tonight after we finish the walk.’ And I’m like, ‘Okay’. (interjections by SC Finey omitted) Second prescribed interview 55 EMS participated in a further prescribed interview about five months later on 6 March 2025. 56 Again, SC Finey asked questions directed at establishing EMS’s understanding that she must tell the truth, and about a topic unrelated to the alleged offending, before indicating that he intended to ask questions about things EMS had said in the earlier interview. 39 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 565. 40 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 120-126. -- 16 of 51 -- [2026] SADC 82 15 Friday night 57 EMS provided further detail about the breastfeeding conduct, which she said involved her father just licking across her breast area. She said that she was wearing her school top at the time, and the licking was underneath her clothing. EMS demonstrated that the defendant lifted up her shirt to get underneath her clothing. In this interview, she said that she was not wearing a crop top that day. EMS identified the area of her breasts on a two-dimensional image of a female child.41 EMS identified the area of her father’s ‘thing’ by marking a penis on a two-dimensional image of a male.42 58 EMS was asked to describe her use of the phrase ‘make out’, in response to which she said, ‘like where, like a couple, like they’re on a date or something, and they call it swap spit now’.43 EMS said that the defendant only did this on the Friday night, and that it involved him licking from her cheek across her mouth to her other cheek, which she demonstrated by pointing to her face.44 EMS said that when the defendant was doing this, she was lying down on the bed and trying to push her head down the pillow to get away from him. She said this went for like five seconds. 59 EMS said that her statement that the defendant slobbered on her private part referred to her vagina, which she identified on the female image.45 Similarly, in relation to her statement that the defendant rubbed her private part, she identified the vagina. EMS confirmed that she was wearing her school top and said that she was wearing a skirt or pair of shorts below her waist. 60 EMS said that the touching of her vagina was on her skin under her clothing and repeated that the touching involved the defendant rubbing with his pointer and middle fingers; she said ‘he was just like rubbing up and down’.46 When asked to tell SC Finey more about the defendant sniffing it, EMS said that she could not see much because he put a pillow over her head, but that after he finished rubbing, it sounded like, ‘pretty much if someone had a cold and pretty much sniffing’.47 Saturday night 61 In relation to EMS’s statement in the first prescribed interview that the defendant had, on the Saturday night, grabbed her hand and made her touch his 41 Exhibit P3 (diagram of female referred to in second prescribed interview). 42 Exhibit P4 (diagram of male referred to in second prescribed interview). 43 Exhibit P2 (USB containing audio visual record of second prescribed interview on 6 March 2025); Exhibit P2A (transcript) line 138. 44 Exhibit P2 (USB containing audio visual record of second prescribed interview on 6 March 2025); Exhibit P2A (transcript) line 142. 45 Exhibit P3 (diagram of female referred to in second prescribed interview). 46 Exhibit P2 (USB containing audio visual record of second prescribed interview on 6 March 2025); Exhibit P2A (transcript) line 202. 47 Exhibit P2 (USB containing audio visual record of second prescribed interview on 6 March 2025); Exhibit P2A (transcript) line 208. -- 17 of 51 -- [2026] SADC 82 16 private part, EMS confirmed that the private part was his penis. Asked to describe how the defendant did so, EMS gave the following account:48 EMS He made me like grab it and just like, I don’t know how to describe it but like, he was making me squish it, but that’s all I could remember. SC Finey Squish it? Tell me about squishing it. EMS Pretty much like you’re choking someone. SC Finey Okay. And how did you do that? EMS He just grabbed like my wrist and then pulled it towards his penis and then he just grabbed my fingers and went like [demonstrating a fist] that to like make them curl up on his penis. (certain interjections by SC Finey omitted) 62 EMS said her hand was on the defendant’s penis for three or five seconds. EMS said that after this, she washed her hands and then went back to bed. She said she tried to go on the other side of Billy as not to be next to the defendant, but that the defendant picked her up and moved her over next to him again. EMS said the reason she washed her hands was because when learning about body parts a week before at school, her teacher had said there were germs on it and she remembered this. 63 In relation to the defendant rubbing his fingers against her private part, EMS said that he rubbed under her clothing, on top of, and not inside, her vagina. 64 In relation to the defendant slobbering on her vagina, EMS said that the defendant used his mouth to slobber just inside in her vagina – not where her pee comes out, licking against the top part,49 on her skin. A short time later in the interview, SC Finey asked EMS if the defendant ‘licked it’ both nights, in response to which EMS said:50 No. I think it was just the Saturday night. Yeah, it was the Saturday night. Complaint to her mother 65 In the second prescribed interview, EMS clarified that her mother was the first person she told about what had happened. EMS said that they were going for a walk around the block when they stopped and she said to her mother that she 48 Exhibit P2 (USB containing audio visual record of second prescribed interview on 6 March 2025); Exhibit P2A (transcript) lines 220-224. 49 Exhibit P2 (USB containing audio visual record of second prescribed interview on 6 March 2025); Exhibit P2A (transcript) lines 314-316. 50 Exhibit P2 (USB containing audio visual record of second prescribed interview on 6 March 2025); Exhibit P2A (transcript) line 330. -- 18 of 51 -- [2026] SADC 82 17 needed ‘a quickly private chat’.51 Billy, who was with them, went with her mother’s friend, and EMS said to her mother:52 Mum, Dad was touching me in the wrong spots that he shouldn’t have been. I don’t want, that’s why I kept on saying I don’t wanna go this weekend because I was scared if that would happen again. 66 SC Finey put to EMS that she (EMS) had said something about seeing a flash of light, and asked her to tell him about that. EMS said that after the defendant licked across her breast, she saw a phone camera flashing, and responded affirmatively to a leading question that she said she thought it was a picture being taken. She confirmed that she had told her mother this. Evidence in further examination 67 At the trial, EMS gave evidence about matters of background, including her family structure and care arrangements, and identifying various rooms in the house at which the defendant resided as to place her allegations into a more detailed factual framework. Much of this evidence was undisputed and represented common ground, and so it may be summarised briefly. 68 EMS’s parents are the defendant and SS, and Billy is her younger brother by about two years. For a time, the family lived together, before EMS’s parents separated on the last day of 2020. Following the separation, the defendant went to live at his cousin’s house in Craigmore (I will refer to this as ‘the Craigmore house’). Apart from a period of time when the defendant was residing in New South Wales, EMS and Billy would generally stay with the defendant every second weekend, but not consistently so. 69 The Craigmore house was not far away from EMS’s school; she estimated a one- or two-minute walk. When EMS and Billy stayed at the Craigmore house, they would sleep in the defendant’s bedroom or in the dining area. EMS identified various rooms in the Craigmore house by reference to a plan53 and photographs.54 EMS had also hand-drawn a plan55 of the Craigmore house independently of the formal plan, exhibit P5, which I observe was consistent with the formal plan in most important respects. 70 EMS identified the dining area in which they would sleep, and in which they slept on the final weekend she and Billy stayed at the Craigmore house, in photographs 1 to 10 of exhibit P8. She identified the mattress in the position which it was in on the final weekend by reference to photographs 1 and 2 of exhibit P8.56 51 Exhibit P2 (USB containing audio visual record of second prescribed interview on 6 March 2025); Exhibit P2A (transcript) line 346. 52 Exhibit P2 (USB containing audio visual record of second prescribed interview on 6 March 2025); Exhibit P2A (transcript) line 350. 53 Exhibit P5 (plan of Craigmore house). 54 Exhibit P8 (photographs of Craigmore house). 55 Exhibit P6 (plan of Craigmore house drawn by EMS on 23 October 2025). 56 T 47-48. -- 19 of 51 -- [2026] SADC 82 18 EMS marked on the formal plan, exhibit P5, the relative position of the mattress (referred to as ‘the bed’) and drew three arrow heads to indicate the head positions of the three occupants.57 71 EMS gave evidence that when she and Billy would sleep in the dining area with their father, in addition to the mattress which is depicted in the photographs, couch cushions were placed on the ground because the mattress did not supply enough room for the three of them. The couch cushions would be placed on the side of the mattress which was closest to the interior of the room. Sleeping positions on the final weekend 72 EMS drew a plan of the dining (sleeping) area showing the relative positions of the bed/mattress, the television on a drawer and the couch (of which there are two, and which I took to refer to the two single-seater couches).58 EMS drew on the plan, exhibit P7, the positions occupied by the three occupants on the last weekend she and her brother stayed with the defendant. EMS drew Billy on the left side of the bed closest to the wall/window (on the left if viewed from the foot of the bed), herself in the middle and the defendant on the right side (closest to the interior of the room). It is noteworthy that this evidence, which did not draw a distinction between the Friday and Saturday nights, was elicited by the asking of a leading question.59 Friday night 73 EMS said that on the Friday night, the defendant was drinking port wine from a cask of a kind she identified in the photographs of the Craigmore house.60 She saw him have two or three normal tall, clear glasses. 74 EMS said that the defendant was in another room when she started watching ‘Migration’. She watched the movie from ‘the exact same spot’, which I took to mean the middle position on the bed set-up. She did not recall where the defendant’s cousin was. At some point, while EMS was still awake, Billy came to bed. EMS was falling asleep during some of the movie. 75 EMS said that she had gone to sleep in her school clothes, which were a green t-shirt and skirt or shorts, with underpants and a crop top on underneath. She could not recall whether she had pyjamas with her that night. 76 On the topic of ‘breastfeeding’, EMS said that the defendant only licked her across the breasts on one of the nights, on the Friday night. This clarification is, on my assessment, consistent with EMS’s explicit description in the first prescribed 57 T 37, 45; exhibit P5 (plan of Craigmore house) – as marked by witness. 58 Exhibit P7 (plan of room drawn by EMS on 23 October 2025 showing where she, her father and Billy slept); T 40. 59 T 40 (‘And is that the positions of all three of you on that last weekend that you stayed at your dad’s?’). 60 Exhibit P8 (photographs of Craigmore house), photograph 10; T 51-52. -- 20 of 51 -- [2026] SADC 82 19 interview of what had taken place on the Saturday night, which did not include that conduct. 77 On the topic of ‘making out’, EMS said that she was unable to remember whether that conduct had occurred on both nights, or only one night, but said she thought it was on the Saturday night. Saturday – phone call with mother 78 EMS said that at around 5.00 or 6.00pm on the Saturday, she spoke to her mother on the defendant’s mobile phone. She said that the defendant was in the area when she spoke to her mother, and that she did not say anything to her mother about what had happened on the Friday night because she was worried about what would have happened. She said that when she spoke to her mother, she felt tired and was crying. Saturday night 79 Regarding the events of the Saturday night, as noted, EMS said that she thought the ‘making out’ occurred that night, but she was unable to remember if it occurred on one night or both. 80 On the topic of the rubbing of her private part, and her description in the first prescribed interview of the action being like rubbing fingers together to wash hands, EMS demonstrated the action by rubbing the palms of her hands together to represent the defendant’s hand rubbing her vagina. 81 On the topic of cunnilingus, EMS drew a diagram to represent her legs and vagina to indicate where she was licked (and, in relation to the indecent assaults which involve touching of her genitals, touched).61 From the rudimentary drawing, I am able to discern where EMS has drawn vertical legs and a downward-pointing triangular shape between them with a vertical central line to indicate the area of her vagina. EMS has drawn a circle over the point of the triangle encompassing the vertical central line to indicate where the defendant licked her,62 which I take to represent the lips of the labia majora. 82 EMS gave the following evidence as to when the act/s of cunnilingus occurred:63 Q. And you also told the police officer about your dad slobbering on and licking your vagina; do you remember talking about that. A. Yes. Q. Did that happen on one of the nights or both of the nights. 61 Exhibit P9 (picture of body drawn by EMS on 28 October 2025); T 61-62. 62 Exhibit P9 (picture of body drawn by EMS on 28 October 2025); T 62. 63 T 61, L1-10. -- 21 of 51 -- [2026] SADC 82 20 A. I can’t remember, but I think it was on one of the nights. Q. Can you remember which night. A. Saturday. (emphasis added) Complaint to her mother 83 EMS said that she did not tell her mother what had happened when she went home on the Sunday night because she was scared and nervous. She said that she decided to tell her mother when she did on the walk because it was the only time they were ‘just alone’,64 which I took to mean, alone together as a pair. 84 EMS gave an account of the conversation in which she complained to her mother which, in my assessment, is essentially consistent with the account given across her two prescribed interviews and which it is not necessary to repeat. Cross-examination 85 The cross-examination of EMS focussed principally upon matters relating to the state of the relationship between the defendant and SS, the relationship between EMS and the defendant concerning access visits, and communications between EMS and SS on the occasion of the last access visit and in connection with EMS’s disclosure. EMS was cross-examined about some details of the last weekend she stayed with the defendant. Timing of Sports Day 86 In cross-examination, EMS confirmed that the last weekend she had stayed with the defendant was Sports Day, and disagreed that Sports Day was a different occasion. Sleeping positions 87 With respect to sleeping positions on the last weekend, EMS said that she slept in the same position on both nights. She disagreed that she had slept on the cushions next to the mattress on that weekend. Defence counsel put to EMS her earlier statement in the first prescribed interview about sleeping on couch cushions near the bed, in relation to which EMS said that was correct. She confirmed that the defendant and Billy were on the bed, and that she was on the cushions on both nights. She disagreed that Billy was the closest to her, although she admitted that he did sometimes like to sleep between her and the defendant. Timings 88 In relation to the timings of events on the Friday night, EMS agreed that she was not sure what time she had gone to sleep and that 7.30pm was a bit of a guess. After being shown certain text messages between her and her mother which were 64 T 64. -- 22 of 51 -- [2026] SADC 82 21 exchanged the following day, including on the topic of the time she had gone to bed, EMS said that she probably went to bed at around 10 or 11.00pm. She said that she probably went to bed at around 11 or 11.30pm on the Saturday night. Text message communications with mother on Saturday 89 EMS was cross-examined about text messages which she exchanged with her mother, SS, on Saturday, 28 September 2024 by use of the defendant’s mobile phone. The message exchange included the following: 65 EMS Hi mum SS Hey sweets how r u EMS Good how are you? SS Good EMS And yes I’m still going to the party EMS [smiling emoji] … EMS What time did u go to bed last night EMS I went to bed at like 10ish SS 130 2 SS Omg early EMS Gee SS Tired were u EMS And I woke up at like 3 and then went to bed and then woke up at 530 and then I stayed up EMS [In response to ‘Tired were u’] Yes very EMS Can I show u wat I’m wearing today … I’m addicted to my hat … lol 90 Following the message, ‘I’m addicted to my hat’, EMS sent SS a short video showing the outfit she was wearing to the party that day. 91 EMS confirmed that she remembered waking at 3.00am on the Saturday morning. She said that she was excited about going to the party referred to in the 65 Exhibit D10 (printout of text messages commencing 28 September 2024 at 10.50am). -- 23 of 51 -- [2026] SADC 82 22 text messages and that she was looking forward to it. She was excited to be wearing a new outfit. EMS said that she was feeling good that morning and that she was not upset. Events of the Sunday 92 EMS agreed that she (I gather, with the defendant) had visited the defendant’s parents on the Sunday and that she was behaving like her usual self. She did not tell anyone at her grandparents’ place what had happened on the preceding nights. Relationship with her mother 93 EMS agreed that she had a really good relationship with her mother, with whom she now resides fulltime, and that she wanted to make her mother happy. 94 EMS said that there had been times while in her mother’s care when she has been in trouble with her mother. EMS agreed that there had been times she was in trouble with her mother for lying to her, and said that she had sometimes lied to her mother because she was scared her mother would send her to her room. No examples were given. Relationship between her parents 95 EMS said that since her parents separated, she had seen them speak to one another, often about herself and Billy. She had seen them argue, sometimes quite seriously. She said that sometimes when they were arguing over the telephone, her mother would put the phone on loudspeaker so that she could hear. EMS said that she had once heard her mother say something that was not too nice, about how her father had started the argument. Staying with the defendant (access visits) 96 EMS agreed that she was upset with the defendant for moving to New South Wales and a little bit angry because she did not get to see him much. She said that when the defendant returned from New South Wales, she recommenced staying with him, almost every second weekend until the last weekend. 97 EMS agreed that there were times when she would tell her mother that she did not want to go and stay with the defendant, including when it was his weekend to have her. She agreed that this sometimes caused her and the defendant to become a bit upset with each other, and that the defendant sometimes got upset with her mother over this. 98 EMS was shown a text message exchange between herself, using her mother’s mobile phone, and the defendant which occurred on 12 August 2024,66 approximately six weeks prior to the last weekend, and said that she remembered the exchange. EMS said that prior to this exchange, she had been meant to stay 66 Exhibit D11 (printout of text messages including ‘By the way I’m coming to yours this weekend…’ in the middle of the first page); Exhibit P20 (agreed facts), paragraph [7]. -- 24 of 51 -- [2026] SADC 82 23 with the defendant the previous weekend but had decided that she did not want to. EMS wrote to the defendant, ‘By the way I’m coming to yours this weekend’, with three smiley face emojis, ‘this weekend’ being a weekend when she was not due to be with the defendant. The defendant responded that he could not have her as he had made other plans. EMS agreed that this caused her to become a bit upset with the defendant. One of EMS’s responses read:67 You should be thankful that I’m going to your house but you don’t want me anymore so what’s the point of winging oh I want [EMS] to come here this is my weekend. And I am trying to go to your house but your refusing so your just a waste of time in my life so it’s ok because I also have plans like my friend sleeping over. 99 EMS said she sent that message because she was angry at her father about not staying at his house, and his complaining to EMS or her mother about EMS not staying over, yet he had other plans when she wanted to stay over. EMS agreed that from time to time when plans changed or she did not want to stay with the defendant, she and he would have arguments like this one. EMS agreed that before the last weekend that she stayed over, she was increasingly forming the view that she did not want to stay there. Use of the defendant’s phone 100 EMS agreed that there were times when she would use the defendant’s mobile phone to play games on, and that he would let her use it including when he was not present. EMS said that she did not look through photographs or internet searches on the phone. When asked if she found anything on the defendant’s phone that made her concerned or upset, EMS said that there was an occasion when she was getting rid of the apps because it was Billy’s turn, and she saw a picture of an 18 or 24 year old girl wearing a pink bikini. Seeing this picture made her feel upset and uncomfortable. EMS denied seeing any images or videos of people doing sexual things on the defendant’s phone. Propositions put to EMS 101 It was put to EMS, and she disagreed, that the defendant had not touched her on the vagina on either night of the last weekend; that the defendant had not put her hand on his penis on either night of the last weekend; and that the defendant had not licked her vagina on the Saturday night. 102 It was put to EMS that she had not told the truth about the defendant because she was angry at him over care arrangements and perhaps what she had seen on his mobile phone. EMS disagreed. Re-examination 103 EMS was questioned in re-examination to address the ambiguity in her evidence concerning sleeping positions on the last weekend. EMS confirmed that 67 Exhibit D11 (printout of text messages including ‘By the way I’m coming to yours this weekend…’ in the middle of the first page). -- 25 of 51 -- [2026] SADC 82 24 the couch cushions were placed alongside the mattress on the inner/internal side of the room. By reference to her drawing, exhibit P7, EMS said that on the first night (Friday), she slept in the middle as drawn, which would place her on the mattress, and that on the second night (Saturday), she was on the cushions, and she then moved to the middle.68 She said that on the Friday night, the defendant was on the cushions, which would be consistent with the position in which she had drawn him in P7. Billy was in the same position on both nights. 104 EMS said that she had seen the picture of the girl in the bikini on the defendant’s phone before the last weekend, probably between a short time and a long time before. 105 As to her evidence about not wanting to stay with the defendant in the lead- up to the last weekend, EMS said that the reason she did not want to stay there anymore was because she was ‘like scared’.69 She said that she was scared because the defendant ‘would like be angry and he would drink a lot.’70 Discreditable conduct evidence: charged and uncharged sexual acts 106 The prosecution gave notice of intention to adduce evidence of the charged acts across counts (‘evidence of each charged act of sexual abuse in relation to each other charged act of sexual abuse’)71 and uncharged acts (‘evidence of each uncharged act of a sexual nature in relation to each charged act of sexual abuse’),72 to demonstrate the defendant’s sexual interest in EMS, and a tendency to act on that interest when she was in his care, making it more likely that the conduct occurred as alleged and involved a sexual connotation. I will refer to this as the propensity use of charged and uncharged acts. 107 Further, the uncharged acts, which consist of the alleged breastfeeding and making out (kissing and/or licking of EMS’s face and neck areas) on the Friday night, are relied upon by the prosecution for non-propensity uses which contextualise EMS’s account. 108 Dealing firstly with the potential propensity use of charged and uncharged acts, the probative value of the evidence must outweigh any prejudicial effect it may have on the defendant and the evidence must possess strong probative value having regard to the issue(s) arising at trial.73 The issue in the trial is whether the sexual acts alleged by EMS occurred. 109 If I find the Friday night conduct proved, it establishes that the defendant had a sexual interest in EMS which he was inclined to act upon, which makes it more likely that he acted upon that interest in committing the Saturday night offences. 68 T 105. 69 T 106. 70 T 108. 71 Notice of intention to adduce discreditable conduct evidence – amended version 2 (FDN 47), item 1. 72 Notice of intention to adduce discreditable conduct evidence – amended version 2 (FDN 47), item 2. 73 Evidence Act, s 34P(2)(a)-(b). -- 26 of 51 -- [2026] SADC 82 25 110 The basis for using the evidence in this way is as explained by the High Court in The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, [51]: The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the "very high probative value" of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. As Hayne J (with whom Gummow and Kirby JJ agreed) concluded in HML: "Generally speaking ... there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried. And the fact of itself that evidence of uncharged acts is given by a complainant does not mean that it lacks significant probative value. Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant's account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused's guilt of the charged offences. (citations omitted) 111 I record that I am satisfied that the probative value of the Friday night charged and uncharged conduct outweighs any prejudicial effect it may have on the defendant and that the evidence possesses strong probative value in relation to counts 3, 4 and 5 (the Saturday night counts). 112 The Friday night conduct also has a non-propensity use at two levels: the uncharged conduct is relevant to my assessment of the Friday night charged acts, and the Friday night charged and uncharged acts are relevant to my assessment of the Saturday night charged acts, as they place EMS’s allegations into their full and proper context. I record that I am satisfied that the probative value of the evidence for this purpose outweighs any prejudicial effect it may have on the defendant and I consider that the permissible uses of the evidence are, and can be kept, sufficiently separate and distinct from impermissible use of the evidence so as to remove any appreciable risk of the evidence being used for that purpose.74 113 A permissible use of the evidence is that it forms part of EMS’s narrative as to how the charged acts were initiated and continued, without which her account would be incomplete, potentially unintelligible and may seem implausible.75 The evidence may also explain EMS’s failure to rebuff the defendant or to complain, 74 Evidence Act, s 34P(2)(a). 75 R v Nieterink (1999) 76 SASR 56, [41]-[43] (Doyle CJ); Johnson v The Queen [2018] HCA 48, [19] (Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ); Heng v The King [2025] SASCA 57, [42]-[43] (Livesey P, S Doyle and Stanley JJA). -- 27 of 51 -- [2026] SADC 82 26 and it may explain why the defendant might have felt confident to act in the manner alleged on the Saturday night without concern that EMS would resist or complain. 114 These are the only ways in which I will use the evidence. I am not to use the evidence to reason that because the defendant has engaged in criminal conduct at an earlier point in time, he is a bad person or a person of bad character and therefore more likely to have committed any of the charged offences. 115 If I find the Friday night charged or uncharged conduct proved, or that that conduct establishes a sexual interest in EMS on the part of the defendant on which he had acted, I cannot find the defendant guilty of any Saturday night offence unless upon my consideration of all of the evidence relevant to the offence I am considering, I am satisfied of the defendant’s guilt beyond reasonable doubt. Evidence of SS Background matters 116 SS gave largely uncontroverted evidence about EMS’s family structure, schooling and accommodation arrangements. She confirmed that she and the defendant had finally separated on 31 December 2020, after which time, the defendant went to live with his cousin at the Craigmore house. Following the separation, there were custody orders in place, which were adhered to, by which EMS and Billy would stay with the defendant every second weekend. In 2022, the defendant moved to New South Wales for about one year. When the defendant returned to South Australia in 2023, he resumed living at the Craigmore house. From this time, the children would visit the defendant on fortnightly weekends from Friday to Sunday, but not regularly. During this period, SS kept records on her mobile phone calendar of when these visits occurred, and of which parent was due to have the children on which weekend.76 117 When the children spent the weekend with the defendant, they would walk the short distance to the Craigmore house from school on a Friday, or SS would drop them off there. The children would sometimes take clothes with them; SS believed there were clothes for them at the Craigmore house. SS would collect the children on Sunday. 118 SS said that post-separation, she and the defendant were on speaking terms but that their relationship was a challenging one. They argued, mostly about parenting of the children. I understood SS’s evidence to be that the defendant implied that she was not a good mother. SS disagreed that she would put telephone arguments on speaker for the children to hear, but accepted that there were times when they did hear things. 119 There were times when the children indicated that they did not want to go to the Craigmore house on the defendant’s scheduled access visit weekends. SS 76 Exhibit P13 (screenshots of calendar on SS’s mobile phone for September and October 2024). -- 28 of 51 -- [2026] SADC 82 27 would support the children’s decision, which sometimes led to arguments between her and the defendant. Timing of Sports Day 120 By reference to her phone calendar and a screenshot of a ‘Seesaw’ school notification application,77 SS was able to say that Sports Day at the children’s school was on Friday, 20 September 2024. The children were with SS on this weekend. SS said that at this time, there were not occasions on which the children would stay with the defendant on consecutive weekends. SS said that EMS’s regular school uniform consisted of a green top and black pants or shorts. On Sports Day, EMS wore a red shirt and red tutu, because red was her team colour. 121 SS gave evidence that the defendant went to Sports Day, and that both children went to his house after Sports Day. She said that Billy possibly stayed the night, but that EMS would not have. This evidence was not challenged. Last weekend the children stayed with the defendant 122 SS gave evidence that the last weekend the children spent with the defendant at the Craigmore house was that commencing on Friday, 27 September 2024. She said that she was pretty sure that the children went there straight after school taking just their school bags and no bags of clothing. Contact with EMS on the Saturday 123 SS confirmed that she was in text message contact with EMS on the Saturday morning, including about what EMS was going to wear to the party.78 In cross-examination, she agreed that she ‘didn’t have any inkling of any trouble or difficulty that [EMS] was going through that morning.’79 124 At 3.36pm, SS received an incoming call from EMS on the defendant’s mobile phone.80 The duration of the call was 9 minutes and 27 seconds. SS spoke to the defendant for about a minute and a half before speaking to EMS. SS said that EMS was very reserved and not very talkative. It sounded like EMS had been crying and she just kept saying, ‘I’m tired Mum, I’m tired.’ It sounded to SS like the defendant was in the background when she was talking to EMS, and like the phone was taken off of EMS by the defendant, who came back on the line. EMS did not say goodbye to her. 125 In cross-examination, EMS said that the phone being taken off of EMS did not really cause her concern because when the defendant came back on the phone, he said, ‘She’s being a little bitch, she’s just not doing as she’s told.’ SS said that she thought that this was normal because that is what EMS sometimes does at her 77 Exhibit P12 (screenshot of notification from Seesaw application). 78 Exhibit D10 (printout of text messages commencing 28 September 2024 at 10.50am). 79 T 133. 80 Exhibit P14 (screenshot of SS call log with defendant’s mobile phone 27-29 September 2024); Exhibit P20 (statement of agreed facts), paragraph [6]. -- 29 of 51 -- [2026] SADC 82 28 house – that is, she will refuse to do something she is told to do. She did not have a concern that EMS was trying to tell her something and the phone had been snatched from her. She said that at that point, she ‘just thought she was being a little cow.’81 126 The children returned to SS on the Sunday, 29 September 2024. Complaint by EMS 127 According to SS’s phone calendar, the children were due to return for an access visit with the defendant a fortnight later on the weekend commencing Friday, 11 October 2024. 128 SS gave evidence of EMS making a disclosure to her on Tuesday, 8 October 2024, which the prosecution relies upon as the evidence of EMS’s initial complaint, admitted pursuant to s 34M(3) of the Evidence Act. 129 SS said that she and a friend were taking the children for a walk around the block in the late afternoon when there was discussion about what they were doing that upcoming weekend. It was mentioned that SS and her friend were going into town as the children were going to their father’s house, in response to which SS said that EMS kind of froze up and shut down, then turned and said, ‘I don’t want to go.’ SS got her friend and Billy to move on ahead, and asked EMS why that was. EMS said, ‘Dad touched me’ and ‘I don’t want to go back.’ SS said that she questioned EMS as to why, in response to which EMS said that she had not been able to tell her because everyone was around all the time and she was embarrassed. SS said that they needed to go home and that they would talk at home. 130 Once at home, SS said that she questioned EMS and told her that ‘these are things you can get in trouble for if you’re lying…you don’t want to be making any stories up or anything.’82 EMS said, ‘No Mum, I’m not.’ SS said that the conversation proceeded as follows:83 And I said to her ‘Where?’ and she said – I said to her ‘What happened?’ She said that she remembers seeing a flash of light, it felt like she was breastfeeding and dad touched her down there … She just stood and pointed [witness indicated by pointing towards her crotch]. 131 SS said that EMS also told her that she was kissed on the neck or something. At the time of telling her these things, EMS was crying, scared and ‘[s]he just didn’t want to go.’84 They went straight to the police station. 81 T 132. 82 T 122. 83 T 122-123. 84 T 123. -- 30 of 51 -- [2026] SADC 82 29 132 In cross-examination, SS disputed that she had spoken to EMS about her allegations four to six times since making the report to police; she said that EMS doesn’t want to remember it. 133 The evidence of EMS’s complaint to SS was admitted to inform me as to how EMS’s allegation first came to light and as evidence of the degree of consistency of conduct of EMS.85 134 Consistency of conduct includes consistency in the making of a complaint when it would be expected to be made and consistency between the wording of the complaint and the conduct alleged.86 135 Evidence of the degree of consistency of conduct of EMS may assist me in evaluating the degree of consistency as between EMS’s allegation and her conduct in making a complaint to her mother when she did and in the terms she did. 136 The evidence of EMS’s complaint to SS is not admitted as evidence of the truth of what EMS alleged to her mother and I must not use it as such.87 137 I direct myself that there may be varied reasons why EMS made a complaint to SS at the time and in the circumstances she did.88 I am to determine the significance (if any) of EMS’s complaint to SS in the circumstances of this case. 138 I will evaluate the evidence of EMS’s initial complaint when I come to assess the credibility of EMS’s account. Behaviour of EMS generally 139 In cross-examination, SS agreed that she has supported EMS as best she could since EMS has made her allegations, and that she has an influence upon EMS. These propositions were put, and agreed to, at this level of generality. 140 SS was asked about EMS lying. SS said that EMS was pretty open and honest, but offered that EMS had previously lied to her about cutting her hair, making stuff in the microwave, and having done her room when she hadn’t, which SS characterised as ‘normal kids stuff’.89 SS agreed that was why she had told EMS on 8 October 2024 that it was important not to lie. 141 Defence counsel put to SS text message correspondence between her and the defendant on 17 June 2024 in which SS wrote, ‘Sorry but just warning u that’s what she’s done and blatant lied. I have to ground her she don’t understand the severity it couldve happend. Night and sorry again but thought that that was 85 Evidence Act, s 34M(4)(a). 86 R v J, JA (2009) 105 SASR 563, [583] (Duggan J, Nyland and White JJ agreeing); Weragoda v The Queen [2021] SASCA 123, [59] (Doyle and David JJA and Stanley AJA). 87 Evidence Act, s 34M(4)(b). 88 Evidence Act, s 34M(4)(c). 89 T 127. -- 31 of 51 -- [2026] SADC 82 30 important keep eye out’.90 SS initially said that she thought that message was about EMS having set alight an egg carton in the backyard and denied it. SS agreed that the message was in fact about an incident at school in which EMS had claimed to have been harassed by another student, but the school informed her that it was EMS who had done the harassing. SS said that the message represented her communication to the defendant about EMS lying to her and getting into trouble at school. Father-daughter incest material on the defendant’s mobile phone 142 The defendant was arrested on the evening of 8 October 2024 at the Craigmore house, at which time his mobile phone was seized.91 The digital contents of the mobile phone were extracted and reviewed, leading to the production of tables containing details of certain searched items, web history and social media history.92 Senior Constable Finey gave evidence about the contents of these tables. There is no dispute that the tables contain material extracted from the defendant’s mobile phone, or as to the timing and means of accessing of such material.93 Searched items94 143 On 31 July 2024, between 5.12am and 5.16am, the defendant’s mobile phone was used to search for material by typing into the search engine Chrome the words: father and daughter caught having incestuous relationships. Web history95 144 The web history data shows the websites which have been accessed (or opened) on a device (as opposed to the search terms entered).96 On 31 July 2024, the terms searched on defendant’s mobile phone led to the accessing of a website or websites referring to that subject matter. 145 On 30 August 2024, the device accessed a Courier Mail online news article titled, ‘Dad rapes daughter, her friend and produces child porn’. 146 On 8 October 2024, which post-dates the alleged offending, the device accessed a pornography site for ‘Daughter Cummed On Porn Videos’. 147 There is no suggestion that any of this material involved child exploitation material. 90 Exhibit D15 (text messages dated 17 June 2024). 91 Exhibit P20 (statement of agreed facts), paragraphs [4]-[5]. 92 Exhibit P20 (statement of agreed facts), paragraphs [10]-[14]. 93 Exhibit P20 (statement of agreed facts), paragraphs [15]-[25]. 94 Exhibit P17 (table titled ‘Searched Items’). 95 Exhibit P18 (table titled ‘Web History’). 96 T 150; Exhibit P20 (statement of agreed facts), paragraph [18]. -- 32 of 51 -- [2026] SADC 82 31 Social media access97 148 Between 28 April 2023 and 29 September 2024, the defendant’s mobile phone accessed a social media website, Reddit, in relation to father-daughter incest material. Reddit enables users to submit and share content to the site, such as links, text posts, images and videos, which other users can then view, post, vote and comment on. Reddit posts are generally organised by subjects/interests known as ‘communities’.98 The column titled ‘Body’ on the social media access table, exhibit P19, shows the title of what the chat, or subject matter, is about.99 It suffices to summarise that between April 2023 and September 2024, Reddit was regularly accessed by the defendant’s mobile phone in relation to the subject matter of sexual acts between fathers and daughters, some of which included pornographic images. 149 In the week before the alleged offending, or before the final weekend on which EMS stayed with the defendant, his mobile phone accessed Reddit titles including:100 • Daughter training: Daddy’s special bedtime stories always end with a happy ending. • I love to fill my daughter’s throat. • Dad put a baby in his slutty daughter. 150 In the early hours of Saturday, 28 September 2024 (equating with the Friday night of the last weekend when EMS stayed at the Craigmore house), at 2.48am and 2.53am, the device was used to access a Reddit title, ‘Cumbucket daughter’.101 151 In the late morning and afternoon of 28 September 2024 (preceding the Saturday night of the last weekend when EMS stayed at the Craigmore house), between 11.53am and 1.56pm, the device was used to access the following Reddit titles:102 • Daughter lessons: good daughters will always offer yourself to Daddy after school. She’s a good daughter. • Daddy was so proud of your progress! She was now a perfect Gen Z fuck toy daughter! • Daughter lessons: daddy loves to grope you while you ride his cock. 152 In the afternoon of 29 September 2024, the device was used to access the title, ‘My daughter gives me a sloppy present’.103 97 Exhibit P19 (table titled ‘Social Media Access’). 98 Exhibit P20 (statement of agreed facts), paragraph [20]. 99 T 156. 100 Exhibit P19 (table titled ‘Social Media Access’), p.17. 101 Exhibit P19 (table titled ‘Social Media Access’), p.17. 102 Exhibit P19 (table titled ‘Social Media Access’), p.18. 103 Exhibit P19 (table titled ‘Social Media Access’), p.19. -- 33 of 51 -- [2026] SADC 82 32 Discreditable conduct evidence: proposed improbability and propensity uses of incest material 153 The evidence of the defendant searching for and accessing father-daughter incest material is evidence that the defendant engaged in discreditable conduct in that it connotes conduct which is wrongful or morally repugnant and reflects poorly on the defendant.104 154 The prosecution argues for the admissibility of the father-daughter incest evidence for a permissible use relating to an assessment of the probability or improbability of EMS fabricating an allegation of sexual acts at the hands of her father (by s 34P(2)(a) of the Evidence Act) and for a permissible use that relies on a particular propensity or disposition of the defendant to be interested in sexual acts between fathers and daughters and prepared to act upon that interest (by s 34P(2)(b)). 155 As to the permissible use of the evidence relating to an assessment of the improbability of EMS fabricating an allegation of sexual acts at the hands of her father, the prosecution invokes the form of reasoning which was acknowledged in R v Heinze [2017] SASCFC 155 (‘Heinze’) as to the admissibility and use of evidence of the appellant’s possession of, and searches for, rape pornography of a particular type involving the restraint and gagging of women in assessing the improbability of a complainant having fabricated an account of kidnapping with intent to rape and indecent assault inclusive of those features. The court held that the probative value of the rape pornography evidence substantially outweighed its prejudicial effect on the appellant, and that it possessed strong probative value as evidence of a propensity on the part of the appellant to commit offences of a kind depicted in the rape pornography in which he had an interest, although the evidence had only been admitted for the former purpose and not the latter. 156 The admissibility of the rape pornography evidence in Heinze was considered in a forensic context of the complaint being implied to have fabricated her allegation of having had her hands tied behind her back, her bikini cut off with a knife and subjected to an attempt to place the garment into her mouth in connection with a sexual assault, and in the factual context of the complaint not having knowledge of electronic evidence exhibiting the appellant’s interest in rape pornography depicting elements of arm/wrist restraint and gags. 157 Kourakis CJ characterised the probative force and permissible use of the rape pornography evidence as deriving from the improbability of the complaint, being ignorant of the existence of the material on the appellant’s electronic devices, fabricating an account of him attempting to rape her in the way depicted in that material involving restraints and gags.105 104 Sadler v The King [2023] SASCA 63, [27]; Kane (A Pseudonym) v The King [2024] SASCA 70, [50] (Doyle JA). 105 Heinze, [32]-[33]. -- 34 of 51 -- [2026] SADC 82 33 158 Kourakis CJ explained that the reasoning which supports the improbability use of the evidence relies on intermediate steps related to the wide range of detail which a person fabricating an account of a sexual attack might include; the peculiarity of the features of restraint and gagging; the small number of people with a prurient interest in such subject matter; and the low possibility of a person fabricating an account of a sexual attack by one of the small number of people with an interest in subject matter strikingly similar to the fabricated account.106 159 The prejudicial effect of the rape pornography evidence, Kourakis CJ said, was to show that the appellant had an interest in viewing depraved material and that it would cause many to assume that he held a desire to abuse women in the same way. Although the evidence had the capacity to prove that the appellant had a propensity to commit sexual offences involving the binding and gagging of women, the improbability use of the evidence did not rely on such a propensity. He said that if the evidence were left to the jury as evidence of propensity, the jury would have to have been directed to consider whether it supported an inference beyond a prurient interest in viewing the material extending to a desire to replicate it. He considered that the use of the evidence was safely and correctly limited to the improbability use.107 His Honour had earlier observed that a person may derive a prurient interest from viewing material of a particular kind without harbouring any desire to replicate it.108 160 Hinton J considered that the rape pornography evidence was admissible for improbability and propensity purposes. As to the improbability use of the evidence, he said that its probative value:109 …lay in the improbability of Ms F just happening to describe the appellant acting in a particular and uncommon sexual manner when, unbeknown to her, he had been exposed to, and had an interest in, sexual conduct similar to that she described. A conclusion that it was improbable that Ms F would just happen to describe the appellant acting in a particular and uncommon sexual manner when, unbeknown to her, he had been exposed to and had an interest in such sexual conduct, was an intermediate (but not indispensable) step in determining whether the offending occurred. Put slightly differently, the chances of Ms F just happening to describe the appellant as engaging in particular and uncommon sexual conduct, when she did not know he had an interest in such conduct, was so unlikely that it is improbable that he did not act as she said he did. 161 I have determined not to admit the father-daughter incest material in support of a finding that the defendant had a propensity or disposition to be interested in sexual acts between fathers and daughters and was prepared to act upon that interest. I have determined to admit the material for a non-propensity improbability of fabrication use. 106 Heinze, [34]. 107 Heinze, [40]. 108 Heinze, [34]. 109 Heinze, [83]. -- 35 of 51 -- [2026] SADC 82 34 162 The facts in issue in the trial are whether the defendant committed the acts the subject of the charges. Proof of these facts rests upon an acceptance of the evidence of EMS, which is the subject of challenge including on the basis that she had a motive to fabricate an allegation of sexual offending at the hands of her father who was, at the relevant time, entrusted with her care. Adopting and adapting the analysis in Heinze, there is a relatively broad scope of conduct which a child fabricating an account of abuse or mistreatment by a parent might allege, and I consider that an allegation of paternal incestuous sexual abuse is unlikely to naturally come to the mind of nine-year-old girl. I consider that there would not be many people with a prurient interest in father-daughter incest material, particularly amongst fathers of female children. Based upon the content of the Reddit material, which included pornographic images and stories, and the spread of dates over which the defendant accessed incest websites and titles, I conclude that his interest in such subject matter was prurient, and not merely curiosity. 163 The possibility that EMS fabricated an account of sexual touching by her father, who himself had a prurient interest in sexual activity between fathers and daughters at a time proximate to her allegation and unbeknownst to her, is in my view remote. 164 I am satisfied that the probative value of the father-daughter incest material for use in evaluating the improbability of EMS fabricating an account of sexual offending by her father outweighs any prejudicial effect it may have on the defendant, and I consider that this use of the evidence is, and can be kept, sufficiently separate and distinct from the impermissible use of the evidence identified in s 34P(1) of the Evidence Act. 165 I direct myself against using the father-daughter incest material to reason that the defendant is a bad person and therefore more likely to have committed a sexual offence against EMS because he has engaged in discreditable conduct in the form of accessing or searching for material involving sexual relations between fathers and daughters. 166 I may only use the evidence in evaluating the improbability of EMS fabricating or concocting an account of sexual touching by her father at a time when he held a contemporaneous interest in sexual activity between fathers and daughters. I direct myself against allowing the incest material to distract me from an evaluation of whether the prosecution has proved any charge beyond reasonable doubt. Evidence of child development and behaviour – report of Professor Kenny 167 The prosecution tendered, by consent, a redacted report of Professor Dianna Kenny, a consultant child and adolescent psychologist and psychotherapist, about child development and child behaviour.110 Such evidence is admissible in proceedings relating to sexual abuse of a child where it is given by a person with 110 Exhibit P16 (report of Professor Dianna Kenny under cover of letter dated 28 August 2025). -- 36 of 51 -- [2026] SADC 82 35 specialised knowledge based on the person’s study, training or experience, pursuant to s 29C of the Evidence Act. A person with specialised knowledge, based on the person’s training, study or experience of child development and child behaviour, may give evidence of an opinion that is based on that specialised knowledge.111 Such an opinion may relate to:112 a) The development and behaviour of children generally; or b) The development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences. 168 Professor Kenny did not conduct any assessment of EMS, and did not have regard to her interviews or evidence. Professor Kenny’s report concerns subject matter including why a child might submit to sexual abuse or not cry out; why a child might not immediately complain; and child memory, retrieval and recounting of allegations of sexual abuse. I do not propose to summarise the contents of Professor Kenny’s report. 169 In BQ v The King (2024) 279 CLR 124 (‘BQ’), the High Court considered the admissibility in a trial of child sexual offences of specialised knowledge-based evidence of the possible responses of victims of child sexual assault, particularly in an intra-familial setting, pursuant to the provisions of the Evidence Act 1995 (NSW). The plurality determined that the evidence given in that case by an expert on the topic of possible responses of victims of child sexual assault was admissible under the NSW legislation, and that no miscarriage of justice arose from the trial judge’s failure to give a general direction to the effect that the evidence was merely educative concerning the inferences that might be drawn from children’s behaviour and ‘[said] nothing about the credibility’ of the complainants in that case. 170 The court said that a general direction incorporating an instruction that the specialised knowledge-based evidence about child behaviour (or counter-intuitive evidence) saying nothing about the credibility of a complainant would have been erroneous and confusing:113 …the evidence of Associate Professor Shackel did say something about the credibility of [the complainants]. The very purpose for which her evidence was led was to avoid the jury's assessment of the honesty and reliability of [the complainants’] evidence being affected by common misapprehensions, such as there being typical responses of a child to being sexually assaulted and that, commonly, children who are sexually assaulted in an intra- familial context will not acquiesce but instead protest. 171 The court emphasised the importance of linking any direction concerning the use of counter-intuitive evidence to the issues and evidence in a trial, and said:114 111 Evidence Act, s 29C(1). 112 Evidence Act, s 29C(2). 113 BQ, [49]. 114 BQ, [51]. -- 37 of 51 -- [2026] SADC 82 36 The proper approach in such cases is not to attempt to enunciate a general direction appropriate to all forms of counter-intuitive or educative evidence or to direct the jury that such evidence might be used only to respond to an attack on a complainant's credibility but not to support their credibility. Instead, where necessary, the legitimate and potentially illegitimate uses to which such evidence might be put should be identified and, if there is a sufficient likelihood or risk that such evidence might be put to an illegitimate use, then that may warrant consideration of its exclusion … or the giving of a direction to the jury to guard against that illegitimate use. 172 What I take to be clear from the High Court’s reasoning in BQ is that expert evidence about the behaviour of children who have been victims of sexual offences may be relevant to an assessment of the credibility of a complainant in the face of an attack on the complainant’s credit which is based upon misconceptions about child victims. 173 In this case, no suggestion was made that EMS ought not be believed due to a failure to cry out during the alleged abuse. The cross-examination of EMS about the visit to her grandparents’ house – that she was her ‘usual self’ and that she had not complained about the alleged offending – carried a faint suggestion that EMS lacked credibility for failing to make a complaint, but defence counsel did not address me to this effect. 174 There being no attack on EMS’s credibility which invoked misconceptions about the manner in which children who have been the victims of sexual offences behave or would be expected to behave, I have not utilised the contents of Professor Kenny’s report on the topics of children submitting, not crying out or not immediately complaining about sexual abuse in my assessment of EMS’s credibility. To the extent that Professor Kenny’s report deals with such matters in a way that accords with aspects of EMS’s account, I do not reason that the alleged sexual acts are more likely to have occurred. 175 As to the parts of Professor Kenny’s report which are concerned with child memory, I have not been much assisted by that general, specialised knowledge evidence in my evaluation of the evidence of EMS in this case, particularly so as far as I am required to undertake a careful assessment of the reliability and accuracy of her account. Much of Professor Kenny’s report relating to memory is concerned with why a child complainant might not disclose all sexual offending in one formal interview. For the most part, that is not the case with EMS who, as I have set out, gave a comprehensive and detailed account of the events of the Friday and Saturday nights in the course of her first prescribed interview which was temporally proximate both to the subject events and her initial disclosure. 176 Professor Kenny’s report is also concerned with complainants experiencing difficulty in recalling the correct sequence of events, much of which is tethered to difficultly of memory retrieval where multiple similar events occur.115 EMS’s account of similar sexual touchings occurring on consecutive nights on a single, identified weekend does not in my assessment involve the level of repetition which 115 Exhibit P16 (report of Professor Dianna Kenny), paragraphs [62]-[74]. -- 38 of 51 -- [2026] SADC 82 37 Professor Kenny commentates upon as leading to the ‘gist’ of the experience being recalled without retrieval of precise details of time, place and other features.116 177 I accept Professor Kenny’s assertion that subjectively significant events are more likely to be recalled, particularly where associated with strong emotion.117 Respectfully, that seems an obvious matter. By my acceptance of this conclusion, I have not reasoned that EMS’s evidence about the events of her final weekend at the defendant’s house is more likely to be accurate. Submissions of the parties Prosecution 178 Ms Boord SC on behalf of the prosecution submitted that across EMS’s prescribed interviews and evidence, EMS provides clear descriptions of conduct by the defendant which are credible and reliable. She submits that the manner in which EMS describes sexual conduct is compelling for a child of her age labouring under the embarrassment of describing things done to her by her father. Ms Boord emphasises the witness’s ability to provide clear and rational detail when pressed for additional explanation, such as by making gestures or giving vivid descriptions. She emphasises that there is an essential consistency which runs through EMS’s account, and which withstands some potentially confusing questioning in the prescribed interviews. Ms Boord submits that the evidence of the defendant drinking alcohol at the relevant time may be explicable of him being disinhibited in his conduct and prepared to act brazenly. 179 To the extent that EMS may be demonstrated to be mistaken about the timing of Sports Day, or have given inconsistent accounts about sleeping positions, Ms Boord submits that these are errors of detail which can be characterised as minor in view of EMS’s young age and the repetitive arrangement of attending at the Craigmore house. 180 The prosecution contends that EMS’s initial complaint is consistent with her credibility as a witness, and with the expert evidence about disclosure of sexual offending by children. 181 The incest material on the defendant’s mobile phone, and the timing of it, the prosecution submits, establishes a long-standing prurient interest on the part of the defendant in such material, and a disposition to act upon that interest. Moreover, the prosecution submits that the presence of the material on the defendant’s mobile phone renders it improbable that EMS would have fabricated or imagined the conduct alleged on the part of the defendant. 116 Exhibit P16 (report of Professor Dianna Kenny), paragraph [69]. 117 Exhibit P16 (report of Professor Dianna Kenny), paragraph [72]. -- 39 of 51 -- [2026] SADC 82 38 Defence 182 Mr McLeod on behalf of the defendant submitted that the evidence of EMS is insufficiently reliable to provide proof of the alleged acts having occurred beyond reasonable doubt. 183 Mr McLeod submits that certain deficiencies in logical flow of the prescribed interviews may be explicable by EMS simply not giving a truthful account. He emphasises that people, including children, can lie for reasons which are unknown, and that the defence does not need to prove a motive to lie. Nevertheless, Mr McLeod submits, the evidence in this case does raise certain indicators of disquiet in the relationship between EMS and the defendant, including arguments and strain arising from previous access arrangements; EMS being fearful due to the defendant’s drinking and anger; and EMS having already decided that she did not want to return to the Craigmore house. He submits that it is a reasonable possibility that EMS’s allegation was a means of avoiding having to return there. 184 Mr McLeod draws support from the evidence of SS about EMS having a history of lying suggesting that the court should be cautious about accepting EMS as a credible and honest witness. Further, SS’s open hostility towards the defendant on occasion, and her closeness to, and support of, EMS, may have created a situation which EMS could not resile from any false accusation designed in the first instance to keep her away from the Craigmore house access visits. 185 Mr McLeod urges me to scrutinise carefully and not simply relegate to honest mistakes EMS’s evidence about the timing of Sports Day, her inconsistent evidence about bedtime and sleeping positions and her claim about a camera flash in the absence of any evidence of a photograph on the defendant’s mobile phone. 186 With respect to the incest interest material, the defence submit that a propensity to act on such material is not established on the evidence. Whilst conceding an improbability assessment use of the evidence, Mr McLeod submits that the material does not rise above a level of commonality involving sexual acts between fathers and daughters. Consideration 187 Preliminarily and fundamentally, I remind myself that the prosecution bears the onus of proving the defendant’s guilt of a charge beyond reasonable doubt. I remind myself that I am required to determine whether the evidence taken as a whole proves the elements of an offence beyond reasonable doubt.118 188 I may only find the defendant guilty of an offence if I am satisfied beyond reasonable doubt that EMS is truthful and reliable in her evidence about the defendant engaging in the conduct which is the subject of the offence. If I consider that it is reasonably possible that the defendant did not engage in the conduct which 118 Douglass v The Queen (2012) 86 ALJR 1086 [12] (French CJ, Hayne, Crennan, Kiefel, Bell JJ); TM v The King [2024] SASCA 5, [71] (Doyle and Bleby JJA, Kimber AJA). -- 40 of 51 -- [2026] SADC 82 39 is the subject of an offence, or if I consider that it is reasonably possible that EMS has fabricated or imagined that the defendant engaged in the conduct, I will be unable to be satisfied of the defendant’s guilt to the requisite high criminal standard. Evaluation of EMS’s evidence 189 Given EMS’s young age, it is appropriate that I should carefully scrutinise her evidence, both in the form of her out-of-court prescribed interviews and her evidence in court, and I will do so. In doing so, I must have regard to the specific criticisms of her evidence advanced by the defence, both individually and by their collective operation. 190 My impression of EMS in the first prescribed interview is that she had an age-appropriate appreciation of the seriousness of the occasion, and that she answered the questions asked of her with a corresponding level of earnestness. It appeared to me that she was concentrating on the questions and that her responses were considered and sensible. I did not discern any hesitation or uncertainty in her responses which cause me to doubt the veracity of what she was saying, nor did I detect any statements or behaviours which cause me to consider that she was motivated by, or directed towards, achieving a particular outcome in the giving of her answers. 191 It seemed to me to involve a very natural and unembellished narrative for EMS to introduce her responses about the defendant’s conduct with restrained language, such as touching her in ‘wrong areas’ and doing ‘weird stuff’. EMS’s descriptions of the defendant doing it out of nowhere, and of her feeling pretty shocked, not feeling safe and experiencing ‘weird emotions all together’ resonate at a basic level with the essential features of her account of the defendant engaging in unfamiliar and confusing sexual touching of her when she was asleep or pretending to sleep. It is noteworthy that EMS was not overtly disparaging of the defendant in a way that causes me to consider that she was seeking to cast him in a bad light to the interviewer, or embellishing her account for effect or for an outcome. If anything, her account is at times restrained by the obvious embarrassment of describing intimate acts of touching by her father, and she, in my assessment, very naturally describes things as being hard to say or weird. 192 Importantly, in the first prescribed interview, EMS advanced a detailed account of events occurring on the Friday and Saturday nights on the last occasion of staying with the defendant at the Craigmore house which involved him touching her at a time after she had gone to sleep on the makeshift bed arrangement in the dining area. That account involved the defendant ‘breastfeeding’ on the Friday night, and trying to ‘make out’ with her, touching her private part, making her touch his private part and licking her private part on both nights. As I have set out, in the interview that followed and in her evidence in court, EMS’s account of the ‘making out’ was uncertain as to whether it occurred on the Friday night, and she -- 41 of 51 -- [2026] SADC 82 40 limited the act of licking her private part to the Saturday night. I will return to these aspects of her account. 193 In the first prescribed interview, EMS gave an account of the defendant touching her genitals, and of she being made to touch the defendant’s genitals, in and amongst other acts of intimate touching and kissing on consecutive nights, in the same environment with very little to differentiate those nights so far as the unfamiliar activity which she was subjected to on the makeshift bed. It is true that there were features which differentiated the two days, but not, it seems to me, the periods of sleep and being awoken from sleep and what transpired on the mattress or bedding. EMS’s statement that ‘he did it again’ on the Saturday night conveys to me that the ‘it’ was the touching in the wrong areas. I do not regard it as an essential prerequisite to finding that EMS is inherently truthful and reliable that she describe all of the types of sexual touching to which she was subject on two similar consecutive nights precisely consistently across her interviews and evidence. There is in her account what I would describe as a baseline level of consistency which extends to her pretending on both nights to be asleep, and to telling her mother about the touching so as not to have to return for the next scheduled access visit. 194 Applying a more detailed analysis to EMS’s first prescribed interview, there are aspects of her description of certain activity which are highly compelling due to the clear, unsophisticated and unambiguous nature of what she describes. For example, the ‘breastfeeding’. When pressed for detail about the defendant ‘randomly touching’ her, EMS apologised and expressed that it was hard for her to say, before going on to say it was pretty much like he was a baby and she was like breastfeeding him somehow. This seems to me to be a natural and obvious way for a ten-year-old child to explain an adult performing an act of licking the skin of her chest/breast area, an action with a sexual connotation which I would expect to be unfamiliar to her. In a similar vein, EMS’s description of the defendant slobbering on her private part and licking it back up, which she said a guileless way of acknowledgment ‘sounds disgusting’, struck me as an authentic description of a physical and emotional sensation which she had genuinely experienced. The detail which EMS proffered about the defendant rubbing her private part with his middle and pointing fingers then sniffing it, impressed me as unadulterated and authentic. Having described the manner in which the defendant pulled his pants down, grabbed her hand and made her touch his penis, EMS promptly corrected the interviewer when he incorrectly put back to her that the defendant pulled down his pants and grabbed his own penis; she did so without hesitation, and in a way that described in more detail that he grabbed her wrist, pulled it towards his ‘thing’ and made her touch it while she pretended to sleep. EMS’s preparedness to correct the interviewer underlines her commitment to providing an accurate account and her desire to be clearly understood, and was so easy as to impress me as involving an authentic, genuine recalling and recounting of events. 195 I have made a point of setting out earlier in these reasons when summarising EMS’s first prescribed interview that she effectively led with the Saturday night -- 42 of 51 -- [2026] SADC 82 41 involving the same thing as the Friday night, and the potential confusion created by the interviewer’s formulaic question about the ‘last time’. It is unsurprising that in ostensibly answering about Friday night, EMS clarified ‘including Saturday’.119 At the conclusion of her recounting of the events of the Friday night, EMS asserted that Saturday night he did the exact same thing again. I allow for her using economical language to avoid re-telling inherently shameful and embarrassing details. SC Finey then led into a recap of events of the Friday night, before shifting back again to the Saturday night, again eliciting the response that it was around the exact same time and he ‘repeated it again as on the Friday night’.120 EMS went on to say that by repeated it, she meant like how he touched her and grabbed her hand and made her touch his private part. SC Finey then left the room for a break. When he returned and the interview resumed, SC Finey said that he wanted to ‘go back a little bit…when your dad has got your hand and put it on his thing’.121 SC Finey did not stipulate which night he was asking about, but EMS agreed in answer to a leading question that her answer related to the Friday night. He then switched to questioning about the Saturday, which caused EMS to ask if he meant day or night. In the later stages of the interview, SC Finey’s questions switched between Friday and Saturday nights. I make no criticism of SC Finey who was trying to elicit details, and my impression is that EMS was doing her best to keep up with the switching questions, however it is an objective feature of the first prescribed interview that the switching between the consecutive nights occurred with some regularity and I can see how EMS may have conflated or confused details pertaining to those two nights whilst still attempting to answer honestly and accurately. 196 It is unfortunate to say the least that in the second prescribed interview, SC Finey introduced the subject matter of the interview as relating to ‘a incident that happened between’ EMS and the defendant, and seeking details about ‘that incident’.122 I am left to infer that the breastfeeding incident was that previously described as having occurred on the Friday night. Having covered breastfeeding and the making out, over a third of the way into the interview, SC Finey mentioned that he forgot to say he was focusing on the Friday night. 197 In spite of the potential confusion engendered by the interviewer’s questions which did not, in the first instance, differentiate between the Friday and Saturday nights, and in spite of the passage of some almost six months since the events, EMS managed in the second prescribed interview to remain on task in answering the questions asked of her, and she answered coherently and intelligibly. Again, I formed the impression that she was answering carefully and truthfully, and certain 119 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 84. 120 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) line 364. 121 Exhibit P1 (USB containing audio visual record of first prescribed interview on 9 October 2024); Exhibit P1A (transcript) lines 482-484. 122 Exhibit P2 (USB containing audio visual record of second prescribed interview on 6 March 2025); Exhibit P2A (transcript) lines 63-65. -- 43 of 51 -- [2026] SADC 82 42 additional details which she provided struck me as compelling. For example, when asked to describe the manner in which she was made to touch the defendant’s penis on the Saturday night, EMS’s description of the defendant making her ‘squish it…pretty much like you’re choking someone’, in conjunction with making a fist, conveyed in simple, unembellished language an action which was objectively sensible and credible in the context of her allegation of being made to touch the defendant’s penis. 198 Further, I regard it as a marker of EMS’s inherent honesty and commitment to providing an accurate account in the second prescribed interview that she clarified that the defendant only ‘made out’ with her on the Friday night, and that she expressed some hesitation before answering a question about whether cunnilingus occurred on both nights, a matter to which I shall return. The broad point I make about EMS’s second prescribed interview is that she appeared to me to have participated in it in a way that demonstrated a commitment to providing truthful, accurate answers, inclusive of expressing hesitation or uncertainty on topics. Moreover, it represents a basically consistent reiteration of her core allegation of sexual touching by the defendant on the consecutive nights of her final access visit with him, in the makeshift sleeping area, with both nights involving touching of her genitals and the defendant’s. 199 As I have indicated, EMS had just turned eleven at the time of giving evidence. Before analysing the detail of EMS’s evidence, and how it sits with her earlier prescribed interviews, I record my impressions of EMS as a witness. EMS impressed me as a child who had an appreciation for the formality of the court setting, and who was cognisant of the solemnity of her oath. She conducted herself in an appropriate and respectful manner. She was composed and, it appeared to me, not prone to distraction. I observed EMS giving evidence in sessions across two sitting days. She appeared to me to listen carefully to the questions asked of her before answering, and she would say so if she did not understand a question. I found her evidence to be clear and measured, and I did not detect any avoidance or evasiveness in her answers that caused me concern about her veracity. 200 In short, I found EMS to be a believable witness. I found the further evidence which she gave in court to be consistent in its compelling quality with the account she had earlier given in her prescribed interviews. That impression was not displaced by cross-examination. 201 I have given careful consideration to the demonstrated errors and inconsistencies in EMS’s account and how they bear upon her credibility and reliability. 202 I accept the evidence of SS that Sports Day occurred on Friday, 20 September 2024. It follows that EMS is mistaken in her assertion that Sports Day was on the Friday of the last weekend at the Craigmore house and coinciding with the first night of alleged abuse. On my assessment of EMS’s account, there was nothing about Sports Day which linked it to the occasion or circumstances of -- 44 of 51 -- [2026] SADC 82 43 the sexual touching per se; rather, it seemed to me to form part of her recollection of events surrounding the last access visit and being at the Craigmore house. I accept EMS’s evidence, which was unchallenged, that on the Friday night of the last access visit she slept in her school top, which was a green t-shirt, and skirt or shorts, which I take also to be part of her school uniform. I accept the evidence of SS that on Sports Day, EMS had worn a red shirt and red tutu in her team’s colours, and that the children had gone to the Craigmore house after Sports Day, but that EMS had not stayed over. I can see how EMS could have innocently and honestly conflated the two Fridays, and her doing so is not, in my assessment, inconsistent with her being truthful and reliable in her recounting of the events which occurred from sleep-time onwards on the final Friday night. That is because her account of those events is so clear and compelling, and patently linked in her memory with the last occasion of sleeping over because she felt unsafe, as though she just needed to get through the weekend and that she did not wish to return. 203 As to the inconsistency in EMS’s account regarding the time at which she went to bed/sleep on the Friday night, I do not regard this as a significant matter. In suggesting in the first prescribed interview that she had fallen asleep at around 7.30pm and that she slept until 11pm or 12am, EMS explicitly acknowledged her uncertainty about the time because there was no clock in the room. That accords with the photographs of the sleeping area. EMS was nine years old, and had no obvious reason to be cognisant of, or to recall, the time. She freely accepted from the content of the text messages that she had probably gone to bed later than 7.30pm, and that she was unsure about the timings of events. I do not regard precision of time as an important facet of EMS’s account of the key events of the Friday night, and EMS’s inconsistency or guesstimate on this topic does not cause me to doubt her veracity or reliability overall. 204 Turning to EMS’s evidence on the topic of sleeping positions, there emerged an apparent inconsistency between her evidence in the first prescribed interview that she (at least on the Friday night) slept on the couch cushions (placing her on the right side of the sleeping set-up if viewed from the foot end), and her evidence in further examination that she occupied the middle position. I have already observed that it is noteworthy that her evidence in further examination was given in answer to a question which did not draw a distinction between the Friday and Saturday nights. 205 In cross-examination, EMS reverted to adopting the position that she had slept on the cushions, and stated that she did so on both nights. I permitted EMS to be re-examined on this topic due to the ambiguity which I considered existed in her evidence in view of her drawing of her position in exhibit P7, relating to the ‘last weekend’. As I have set out above, EMS’s evidence in re-examination elaborated that exhibit P7 showed her position on the Friday night, and that on the Saturday night she was on the cushions (therefore, on the right), and then moved to the middle (per exhibit P7). -- 45 of 51 -- [2026] SADC 82 44 206 Clearly, EMS’s evidence on the topic of her sleeping position has changed and evolved. That may, to some degree, be explicable by imprecise questioning. Overall, I did not find EMS’s account about her precise position in the three-person sleeping set-up to be clear and confident. The ambiguity in her evidence on this topic was not finally and satisfactorily resolved, such that I consider this to be a factor which indicates that EMS’s recollection about sleeping positions may be inaccurate. 207 I am unable to make any finding as to the positions which the occupants of the three-person sleeping set-up occupied on the Friday or Saturday nights, beyond finding that EMS, Billy and the defendant slept on the mattress/couch cushion arrangement on the dining room floor on both nights. I consider it is most likely that Billy occupied the side on the left. 208 The doubt which I harbour concerning EMS’s reliability in describing sleeping positions does not lead me to hold any corresponding doubt about her inherent credibility or about the truthfulness and accuracy of her account of being subjected to sexual acts by the defendant on the consecutive nights of the last weekend she stayed with him and while she was in a sleeping position on the dining room floor. The sleeping arrangement involved EMS occupying a position on a makeshift three-person bed arrangement on a mattress or cushions in a position close to the ground. On both nights, the other occupants of the bed arrangement were the defendant and her brother, and on both occasions, she was woken from sleep, and pretended to continue to sleep, when she experienced the unfamiliar and confusing conduct of her father touching her sexually. In such circumstances, I would expect her recollection of the sexual touching to be more prominent and reliable than her recollection of her positioning, which I regard as a far more peripheral detail. 209 I accept that there is no evidence of the defendant having taken any photograph of EMS at the time of, or in connection with, sexual touching of her. EMS’s statement to SS, in the context of her initial complaint, was of seeing a flash of light. In the first prescribed interview, EMS described this as a phone camera flashing and, as I have noted, responded affirmatively to a leading question that she thought a picture had been taken. It is a curious detail in EMS’s account, but not one which I find to be strange, implausible or necessarily incompatible with the essential truthfulness of her allegation. EMS was not further questioned about this detail, so the evidence before me is limited to her bland agreement with the interviewer’s leading question in the first prescribed interview. Apart from this, the taking of a picture, camera flash or use of a mobile phone do not feature in EMS’s narrative of events in her interviews or evidence. This feature cannot be characterised as an integral or important aspect of EMS’s account of the alleged sexual offending. EMS was pretending to sleep; it is possible that she perceived something which caused her to conclude that a phone camera was flashing or that there was some light source. It is possible that she has mistakenly misconstrued that detail or made it up. The evidence does not allow me to draw any firm conclusion in this regard. Ultimately, as it does not feature prominently in EMS’s -- 46 of 51 -- [2026] SADC 82 45 account of events, I do not regard the absence of any photograph on the defendant’s phone as establishing a significant incongruity in EMS’s account. The claim of seeing a flash of light is something I will take into account in evaluating the consistency of EMS’s account in the making of her initial complaint. 210 It is convenient to turn to the evidence of EMS’s initial complaint, applying the directions which I have given myself at [133]-[137]. 211 The evidence of EMS and SS is essentially consistent as to the circumstances in which EMS made an initial complaint about the alleged sexual offending while on a walk on 8 October 2024 and in the context of EMS expressing that she did not want to return to the defendant’s house. The evidence of EMS and SS is mutually supportive on this topic. 212 SS impressed me as a frank and honest witness. She appeared to give moderate, unembellished evidence devoid of any hyperbole or histrionics. She did not, in my assessment, seek actively to cast the defendant in a negative light, or EMS in a perfectly positive light. In this sense, I felt that the intent of her evidence was to honestly convey facts to the court. I accept SS’s evidence about the circumstances in which EMS raised a complaint on the walk, what EMS said on the walk and at home, and how EMS appeared. 213 I consider that the making of a complaint by EMS to her mother in connection with seeking to avoid a return to the defendant’s house, and in a situation in which she was able to speak to her mother alone, and the terms of EMS’s complaint, support EMS’s credibility. 214 EMS’s complaint of the defendant touching her, it feeling like she was breastfeeding and the defendant touching her in the genital area is broadly consistent with her allegations of what took place on the final weekend she stayed with the defendant. EMS’s statement that she remembered seeing a flash of light is not meaningfully inconsistent with her account of sexual touching or interference, which was the gravamen of her complaint. It is neither surprising, nor causative of suspicion, that EMS did not disclose all of her allegations to her mother, or that she omitted details, such as of touching the defendant’s penis or involving cunnilingus, given how embarrassing she evidently found the telling of those details to the prescribed interviewer, and given that a fulsome disclosure was not necessary to activate the action which was taken to keep EMS from having to return to the defendant’s house. I have not used EMS’s assertive statements to SS to prove the truth of EMS’s assertions. It is a compelling detail, consistent with EMS’s credibility, that she advanced her allegations in the face of being told by SS that she should not lie or make up stories. 215 I have also considered the timing, content and presentation of EMS’s complaint to SS in the context of the defence suggestion of EMS having a motive to lie about the defendant sexually interfering with her. -- 47 of 51 -- [2026] SADC 82 46 216 The evidence establishes, and I accept, that prior to the weekend on which the alleged offences were committed, EMS and the defendant had had conflict over arrangements for access visits, and that SS would support EMS’s preferences regarding access visits. The evidence of EMS tends to indicate that in the lead-up to the last weekend access visit, EMS was less enthusiastic about staying with the defendant. I have the impression that EMS was intelligent and astute enough to know that an allegation of sexual interference would lead to the consequence that she would not have to stay with the defendant. 217 I must give careful consideration to the evidence supporting the prospect of EMS having a motive to falsely implicate the defendant in sexual offending against her tied to a desire to no longer have to stay with him in determining whether to accept EMS’s evidence. 218 Preliminarily, I exclude as a reasonable possibility that EMS was motivated or influenced to lie about sexual interference because she saw a picture of a young woman in a bikini on the defendant’s mobile phone. There is no evidence that she saw any other upsetting material on the phone. It is reasonable to expect that any nine-year-old girl would feel a degree of discomfort at seeing the image of an unknown young woman in a bikini in her father’s possession. There was no elaboration as to what about the bikini picture made EMS feel upset and uncomfortable, and I did not detect a strong reaction from her on this subject matter. 219 I reject the possibility that EMS was motivated or influenced to lie about sexual interference as a means of avoiding any further access visits with the defendant. I reject this possibility because I accept EMS’s denial that her anger at the defendant over care arrangements caused her to not tell the truth about him. The events which involved EMS becoming upset with the defendant about care arrangements involved his move to NSW and his making of alternate plans in August 2024, resulting in EMS being unable to stay with him. On the evidence before me, if EMS chose not to stay with the defendant, SS would support her, leading to conflict with the defendant; there is no evidence that EMS was compelled to stay with the defendant against her wishes. This diminishes, in my view, the existence of any necessity for EMS to have to come up with an excuse not to have to stay with the defendant if she did not wish to do so. 220 I have noted that in her initial prescribed interview with the police, the day after her initial complaint to SS tied with not wanting to return to the defendant’s house, EMS did not speak generally disparagingly of the defendant. She described details of her time with him which were positive and enjoyable, such as receiving birthday presents and spending money and attending her friend’s birthday party. 221 To the extent that SS’s evidence suggests a capacity on the part of EMS to tell lies by the examples given, I do not see this as a capacity which exceeds that of any nine-year-old child seeking to avoid the potential consequences of -- 48 of 51 -- [2026] SADC 82 47 wrongdoing. The evidence does not establish or support that EMS is a habitual or practised liar. 222 I remind myself that it is for the prosecution to prove the defendant’s guilt beyond reasonable doubt and to satisfy me that EMS’s evidence is sufficiently credible and reliable to act upon. The defendant does not have to show that EMS is lying or wrong. Although I have rejected the possibility that EMS was motivated by a desire to avoid access visits to lie about the defendant sexually interfering with her, it does not follow that EMS is telling the truth on that topic, nor does this strengthen the prosecution case. 223 I direct myself that there may be many reasons why a person, including a child, may lie. EMS may have harboured reasons apart from a desire to cease access visits or related to the bikini picture to lie. 224 I direct myself not to reason that the rejection or absence of a reason to lie on the part of EMS amounts to her having no reason to lie and to her telling the truth. 225 I have carefully evaluated EMS’s account as contained in her prescribed interviews and as elaborated upon and tested in evidence at trial. Overall, I am persuaded that her account of the defendant sexually touching her on the Friday and Saturday nights of her final access visit is a truthful, honest and accurate one. The inconsistencies in EMS’s account about clock time, sleeping positions and a camera flash or picture, in combination with her error about the timing of Sports Day, do not cause me to doubt the essential truthfulness or reliability of her account in its key respects. 226 I am not persuaded that EMS was motivated by upset with the defendant to lie about being sexually touched by him as a means of avoiding a return to his house, and I assess it to be improbable that she would fabricate a story about paternal sexual touching coincidentally with the defendant having a contemporaneous prurient interest in father-daughter incest material on the internet about which she was unaware. I consider that EMS’s credit is supported by the timing, circumstances, content and presentation of her initial complaint to SS. Findings 227 Based upon my acceptance of the truthfulness and reliability of the evidence of EMS, which I assess to be consistent with, and supported by, the surrounding evidence of opportunity for the conduct alleged against the defendant to have taken place, I find the following facts established beyond reasonable doubt: 1. After school on Friday, 27 September 2024, EMS and Billy went to the Craigmore house and were in the defendant’s care until they returned to the care of SS on Sunday, 29 September 2024. 2. On the Friday night, into the morning of Saturday, 28 September 2024, EMS, Billy and the defendant slept in the dining room of the Craigmore house on -- 49 of 51 -- [2026] SADC 82 48 a bed set-up which consisted of a mattress and couch cushions placed on the floor. 3. On the Friday night or Saturday morning (‘Friday night’), while Billy slept, the defendant engaged in the following acts with or towards EMS while EMS pretended to be asleep: (a) The defendant intentionally licked EMS on her breasts; and (b) The defendant intentionally touched and rubbed EMS’s vagina inside her clothing using two fingers; and (c) The defendant intentionally grabbed EMS’s hand, placed it around his penis and rubbed it on his penis for three to five seconds. 4. On the Saturday, EMS attended a birthday party before returning to the Craigmore house. 5. On the Saturday night into the morning of Sunday, 29 September 2024, EMS, Billy and the defendant slept in the dining room of the Craigmore house on the same bed set-up as the previous night. 6. On the Saturday night or Sunday morning (‘Saturday night’), while Billy slept, the defendant engaged in the following acts with or towards EMS while EMS pretended to be asleep: (a) The defendant intentionally touched and rubbed EMS’s vagina inside her clothing for five seconds; and (b) The defendant intentionally grabbed EMS’s hand, placed it around his penis and rubbed it on his penis for three to five seconds. 228 I find that on each of the Friday and Saturday nights, the touching of EMS’s vagina and placing of her hand on the defendant’s penis involved a sexual connotation and occurred in circumstances of indecency. I find that at all times the defendant knew EMS to be his daughter and, therefore, a person with whom he was in a relationship. 229 I find counts 1 (finding 3(b)), 2 (finding 3(c)), 3 (finding 6(a)) and 4 (finding 6(b)) proved beyond reasonable doubt. 230 I am satisfied that the defendant committed the act of ‘breastfeeding’ by licking EMS’s breasts on the Friday night, and that on one or other or both of the Friday and Saturday nights, he committed other uncharged acts of a sexual nature upon EMS, namely, that he ‘made out’ with her by licking her face or neck. 231 I am further satisfied that on one or other of the Friday or Saturday nights, the defendant performed an act of cunnilingus on EMS. EMS’s description of this conduct is compelling, and my findings that he committed the charged and -- 50 of 51 -- [2026] SADC 82 49 uncharged acts of aggravated indecent assault, which support that the defendant had a sexual interest in EMS that he was inclined to act upon, make it more likely that he engaged in such an act. 232 As to count 5, the offence of unlawful sexual intercourse, the prosecution’s case is distinctly that the defendant performed an act of cunnilingus on EMS on the Saturday night; it is not that he did so at a point over the course of the weekend. As the prosecution’s case was presented, in order to find the defendant guilty of count 5, I must be satisfied beyond reasonable doubt that the defendant performed an act of cunnilingus on EMS on the Saturday night. As I have set out, EMS’s initial account was that the slobbering and licking on her private part occurred on the Friday night and the Saturday night as part of ‘the exact same thing’ happening again. In the second prescribed interview, EMS’s response to the interviewer’s question about whether the defendant licked her vagina on both nights was no, she thought it was the Saturday night. In giving this answer, EMS seemed to me to be tentative and uncertain. That uncertainty continued in EMS’s evidence in further examination at trial in that, as I have set out at [82], when asked if the slobbering and licking on her vagina happened on one of the nights or both, she replied, ‘I can’t remember, but I think it was on one of the nights.’ The follow-up question about which night, which elicited the response Saturday, seemed to me to invite the witness to nominate a night on an uncertain foundation of her not remembering if cunnilingus had occurred on one or both nights. 233 The witness gave no evidence specifically linking the act of cunnilingus to the events of the Saturday night, and I was left with the impression that she may have been guessing that it had taken place on the Saturday night. I think it is a mark of EMS’s honesty that her response was prefaced with an acknowledgment that she could not remember when the cunnilingus had occurred, but the totality of her evidence on this topic leaves me with a doubt as to whether the defendant engaged in an act of cunnilingus upon her on the Saturday night, as opposed to the Friday night. Her second interview and evidence statements that it occurred on one of the nights precludes a finding that it happened on both nights, which would encompass count 5. It follows that I do not find count 5 proved beyond reasonable doubt. 234 To the extent that EMS’s evidence on the topic of the timing of the occurrence of the act/s of cunnilingus has equivocated, this has not caused me to doubt her veracity and reliability more broadly or in relation to the acts the subject of counts 1 to 4. I record also that, were I to ignore the evidence of the incest material on the defendant’s mobile phone and not have regard to it in assessing the improbability of EMS fabricating an account of sexual abuse to advance a lie to avoid a return to the defendant’s house, I would nevertheless accept EMS’s evidence in support of counts 1 to 4 beyond reasonable doubt. 235 As to counts 1 to 4, I find the defendant guilty. 236 As to count 5, I find the defendant not guilty. -- 51 of 51 --