[2026] SADC 94

Prosecution: R Counsel: MS Z SMITH - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: ALBERT JAMES LESLIE BEVANS Counsel: MR N REDMOND - Solicitor: EDGE LAW Hearing Date/s: 05/05/2026, 06/05/2026, 07/05/2026 File No/s: DCCRM-21-1615 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 BEVANS Criminal Trial by Judge Alone [2026] SADC 94 Reasons for the Verdicts of her Honour Judge Telfer 7 August 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - UNLAWFUL SEXUAL INTERCOURSE WITH A CHILD UNDER 17 YEARS. The accused is charged with two counts of unlawful sexual intercourse with a child under the age of 17. The complainant is the accused’s niece. It is alleged that on two occasions when the accused looked after the complainant at his home he caused her to perform acts of fellatio on him. The complainant did not complain about the conduct until she was an adult. The accused denied that he was ever alone with the complainant and therefore had no opportunity to commit the offences charged. The offences were dated and the accused suffered a forensic disadvantage as a result. HELD: The accused is guilty of count 1 and count 2. Evidence Act 1929 (SA) ss 13D, 34M(2), 34P; Criminal Law Consolidation Act 1935 (SA) ss 5, 49(3), referred to. R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68; R v Machin (No 2) (1997) 69 SASR 403; R v Kostaras (2003) 86 SASR 541; R v Jones [2018] SASCFC 80, considered. -- 1 of 28 -- -- 2 of 28 -- R v BEVANS [2026] SADC 94 1 Albert James Leslie Bevans (the accused) is charged with two counts of Unlawful Sexual Intercourse with a Child Under 17 years. The alleged victim is the accused’s niece who I will refer to as Natalia during this judgment to preserve her anonymity. It is alleged that Natalia was between 12 and 15 years of age at the time of the offences. 2 Natalia is the daughter of the accused’s sister Ms Mann.1 Natalia spent her childhood moving between different towns and states in the care of either her mother or her father. In 2011 Ms Mann and Natalia moved into a rental property at Elizabeth Grove, close to the accused’s home at Davoren Park. It is alleged that during the period when Natalia lived close to the accused she was frequently left in his care. It is alleged that on two occasions he took advantage of this unsupervised access, and caused her to perform an act of fellatio on him. 3 Contact between the accused and Natalia reduced after these two occasions and in October 2013 Ms Mann and Natalia moved away from Elizabeth Grove. Natalia did not complain about the alleged conduct until she was an adult. Preliminary Directions 4 In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:2 It is not self-evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. (References omitted) 5 With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter. Witness Arrangements 6 This trial was not the first time that this matter has been heard in this Court. Natalia gave evidence which was recorded at a previous trial. The audio-visual 1 A pseudonym. 2 R v Winner (1995) 79 A Crim R 528 at 530-531, cited in R v Keyte (2000) 78 SASR 68 at [54]. -- 3 of 28 -- [2026] SADC 94 2 record of Natalia’s evidence was tendered on the prosecution case pursuant to section 13D of the Evidence Act, with the consent of the accused. At the time that she gave her evidence she was in a remote location and the evidence was transmitted by closed circuit television. She was accompanied by a court companion. 7 I direct myself in respect to all of those arrangements that I must not draw any inference adverse to the accused from the fact that the arrangements were made and I must not allow those arrangements to influence the weight I give to the evidence. 8 Although the audio-visual record of Natalia’s evidence was tendered as an exhibit, I confirm that I have viewed the recording once only when it was played in court. I have otherwise relied on my own notes and transcript of the evidence in the course of preparing these reasons, in the same way that I would if a witness had given evidence at the time of the trial. Presumption of Innocence and Right to Silence 9 The accused has the presumption of innocence in his favour. The elements of the offence must be proved beyond a reasonable doubt, and the accused does not need to prove anything. The elements on any charge cannot be proved unless the relevant evidence proves the elements to the requisite standard. 10 The accused did not give evidence in this matter. I draw no inference against him for that. 11 The accused did give evidence at a previous trial. The transcript of that evidence was tendered on the prosecution case. I have assessed that evidence in light of the principle that the evidence can be used both for and against the accused. I have taken into account that it was evidence that was given on oath, in anticipation of being cross examined. It is also relevant that I have received the evidence in written form and did not have the benefit seeing and hearing the accused give the evidence.3 12 The fact that a previous trial has been held in this matter is relevant to explain the background to the audio-visual recording of Natalia’s evidence and the context for the accused’s evidence. It is also relevant insofar as statements from another trial were put to various witnesses. The fact of a previous trial is otherwise irrelevant. Elements of the Offence 13 Unlawful Sexual Intercourse with a Child under 17 years has two elements:4 3 R v Machin (No 2) (1997) 69 SASR 403 at 410-411; R v Kostaras (2003) 86 SASR 541 at [100]-[101], [108]. 4 Criminal Law Consolidation Act 1935 (SA) section 49(3). -- 4 of 28 -- [2026] SADC 94 3 1. The accused had sexual intercourse with Natalia. 2. At the time of the sexual intercourse Natalia was under the age of 17 years. 14 The term “sexual intercourse” is defined to include an act consisting of or involving an act of fellatio.5 15 Natalia’s date of birth was proved by agreed fact. She was born in April 1998 and she was therefore between the age of 12 and 15 during the period charged.6 16 The real issue in dispute was whether the acts of fellatio occurred, and not Natalia’s age at the relevant time. Background Relationships and Circumstances 17 Natalia was born in 1998, the only child of Ms Mann. The accused is Ms Mann’s half-brother and is about five years younger than her. When Natalia was still an infant Ms Mann and Natalia’s father separated and thereafter her care was shared between them. Natalia spent time living in Port Augusta and Coober Pedy with Ms Mann, and in Kadina with her father. During Natalia’s primary school years she spent very little time with the accused because Ms Mann was not around her own family very much.7 The accused spent a couple of weeks staying with Ms Mann when she lived in Coober Pedy, and the relationship between Natalia and the accused was unremarkable during that period.8 18 In Natalia’s final year of primary school, she and Ms Mann moved to a house at Salisbury East, and then to a house at Elizabeth Grove. Housing SA records show that Ms Mann held a lease over the property at Elizabeth Grove between 16 April 2011 and 18 October 2013.9 19 The accused had a long-term partner, Ms Laura Southern-Welsh. The couple have three children born 2009, 2011 and 2013 (all three much younger than Natalia). The family held a lease for a house in Walpole Street, Davoren Park between 8 January 2010 and approximately 2014. By July 2014 the family were living at Charmouth Street, Davoren Park.10 20 One of the issues in dispute at trial was the extent of contact between Ms Mann, Natalia and the accused during the charged period. It is not in issue that the two families both lived in the northern suburbs of Adelaide and Ms Mann and Natalia did visit the accused and his family at their home at Walpole Street, 5 Criminal Law Consolidation Act 1935 (SA) section 5. 6 P9, Agreed Fact 1. 7 TS 16. 8 TS 17. 9 P9, Agreed Fact 8. 10 P9, Agreed Facts 5 and 6. -- 5 of 28 -- [2026] SADC 94 4 Davoren Park. The circumstances and frequency of those visits will be considered later. 21 Natalia was last enrolled at a school in South Australia in August 2013. After that time she and Ms Mann moved to Queensland. Natalia’s Evidence 22 Natalia told the court that she was in high school when she and her mother moved to Elizabeth Grove. Although she knew the accused prior to that move, she spent more time with him once she lived closer to him. She said she would go to the accused’s house “during school holidays and on weekends”. She would go to visit the accused, his partner and the children.11 The visits began when the middle child (born in February 2011) was still a baby.12 23 Natalia was shown a floorplan of the Walpole Street, Davoren Park premises and was able to identify the bedroom occupied by the accused and his partner, and the location of various doors to that and the other bedrooms.13 She said that the accused and his partner used to pull a mattress out to the living room to sleep.14 Natalia described her relationship with the accused and his partner as “really good” and she felt she had a connection with them. She spent time with the accused’s older son who could be a bit rough, and with his younger daughter who she “used to always just cuddle”.15 There were times that she attended the house with Ms Mann, and times that she would be dropped off and spend a few nights with the accused and his family on her own. These longer stays occurred mostly in the school holidays.16 24 Natalia recalled that on the occasions when her mother accompanied her on visits, Ms Mann and Ms Southern-Welsh would leave the house to do things, including shopping together.17 This occurred during the daytime and nighttime, and she would remain at the house with the accused and the two children. Count One 25 Natalia’s evidence was that count one occurred at nighttime, when she was at the accused’s house. She could not recall how old she was at the time. His two children were at home but Ms Mann and Ms Southern-Welsh had gone out together.18 The accused was in the shower and Natalia in the living room. He called her name and she went to the bathroom door to ask him what he wanted. Natalia’s evidence was that the accused opened the bathroom door wearing only a towel, and he dropped the towel to expose his penis. He told her to get on her 11 MFI P1A TS 23-24. 12 MFI P1A TS 24. 13 MFI P1A TS 26-27. 14 MFI P1A TS 28. 15 MFI P1A TS 28. 16 MFI P1A TS 29. 17 MFI P1A TS 29. 18 MFI P1A TS 30. -- 6 of 28 -- [2026] SADC 94 5 knees, and she complied. He said words to the effect of “how else was I supposed to learn how to suck a dick”.19 He had one hand on the shaft of his penis. He instructed her to open her mouth, held her hair scrunched between his fingers behind her head and placed his penis into her mouth.20 He moved his hips back and forth so that his penis moved back and forth in her mouth.21 Natalia said she was crying because she was having trouble breathing.22 The accused stopped and asked her if she was alright. Natalia did not respond, but she continued to cry and then left the bathroom, walking to the living area.23 The accused left the bathroom before her. 26 Not much later, Ms Mann and Ms Southern-Welsh returned home. Natalia returned home that night to her home at Elizabeth Grove. She said she felt scared and confused during the incident.24 Natalia did not tell Ms Mann what had happened to her. She said that “my mum suffers with really bad mental health and I refused to tell her because I know that it would have triggered some mental health issues that happened in the past with her”.25 Count Two 27 A couple of weeks later the second incident occurred.26 It was daytime on either a weekend or school holidays, and there were children outside the house playing. Natalia was at the accused’s home during the day, and Ms Mann and Ms Southern-Welsh had left the house to do some shopping. 28 Natalia told the court that she went to the toilet, which was situated inside the laundry towards the rear of the house.27 When she came out to the living area, the accused blocked her from sitting on the couch. He dropped his pants down, placed one hand on Natalia’s shoulder and one hand on her head and pushed her body down.28 Natalia resisted him and tried to push away. He told her that “the last time felt great” and Natalia responded that she did not want to do it again.29 29 Natalia’s evidence was that she was on her knees, facing the accused and the accused applied his finger forcibly to her bottom jaw to open her mouth.30 The accused placed his penis into her mouth and grabbed the back of her head, moving it backwards and forwards on his penis. Natalia was crying throughout the incident.31 Natalia recalled that at the time the incident ended there was an 19 MFI P1A TS 33. 20 MFI P1A TS 31. 21 MFI P1A TS 34. 22 MFI P1A TS 34. 23 MFI P1A TS 31. 24 MFI P1A TS 36. 25 MFI P1A TS 31. 26 MFI P1A TS 37. 27 P3. 28 MFI P1A TS 36, 39. 29 MFI P1A TS 39. 30 MFI P1A TS 40. 31 MFI P1A TS 41. -- 7 of 28 -- [2026] SADC 94 6 unpleasant taste down the back of her throat. She now recognises, although she did not at the time, that what she tasted was semen. She could not recall how long she was on her knees for, but it was long enough for her to be left with an indented pattern from the floorboards on her knees.32 30 Natalia said that once the incident was over she ran from the house crying and went to a nearby park where she vomited and continued to cry. The location of the park was identified by reference to an aerial plan.33 As she left through the front door the accused told her not to leave.34 31 Natalia was discovered at the park by her mother when she returned from shopping. By the time Ms Mann arrived Natalia was no longer crying and she told her mother that she was tired and wanted to go home. She did not complain to her mother about the accused’s assault of her “because of her [mother’s] mental health”.35 Natalia and her mother travelled to their home via taxi. 32 Natalia said that following the second incident she “blocked everything that happened and acted like nothing happened”.36 While she still visited the accused’s house she no longer slept overnight. She could not recall ever being alone with the accused at the house again. She said she returned to the house at Walpole Street, Davoren Park because if she didn’t she thought her mother would ask why, and she did not want to tell her the reason.37 After the incidents the accused and she each behaved as though nothing had happened. Cross Examination 33 In cross examination Natalia was asked about her recollection of any tattoos that the accused had on his arms or hands. She recalled he had “a few” tattoos, including a clown on one of his arms, but she could not recall any detail beyond that. She recalled that the accused lived with a skin condition which she described as “like eczema…little bumps”. She could not recall seeing any of that condition around the accused’s penis. She could not identify whether his penis was or was not circumcised. She could not recall a skin tag attached to his foreskin.38 34 In cross examination it was suggested to Natalia that she never stayed overnight at the accused’s home. She maintained that she had slept nights on a mattress that was positioned in ‘Bedroom 2’.39 She disagreed with the proposition that she had visited the accused’s Walpole Street house no more than two or three times. 32 MFI P1A TS 41. 33 P4. 34 MFI P1A TS 42 35 MFI P1A TS 43. 36 MFI P1A TS 44. 37 MFI P1A TS 44. 38 MFI P1A TS 53-55. 39 P3; MFI P1A TS 56. -- 8 of 28 -- [2026] SADC 94 7 35 Natalia was asked about her relationship with twin girls who lived near the accused – Melitsa and Milena Stamenkovic. She agreed that she knew the girls and during the period she was visiting Walpole Street she did not get along well with them. Natalia was asked if there was an occasion when she had a fight with one or both of the girls resulting in her storming away from the house and her mother picking her up from the nearby park. She said she could not recall such an event. She said the girls were not at the house on the occasion of the second incident when she cried and fled to the park to vomit.40 36 Counsel for the accused asked Natalia about Ms Southern-Welsh’s sister Sara Southern-Welsh. Natalia recalled that during school holidays and on weekends she had seen Sara and her two children at the accused’s house. She estimated this was on about four occasions.41 She denied the suggestion that Sara’s children had never been at the Walpole Street address. 37 In terms of the timing of her visits to Walpole Street, Natalia’s evidence was that she no longer visited by the time the accused’s third child was born, in October 2013.42 38 Natalia confirmed that she did not say anything to the accused after either charged incident. She confirmed that the accused did not physically or verbally threaten her nor bribe her to secure her silence.43 She was unable to describe the clothing she or the accused was wearing at the time of either incident.44 Opportunity 39 Ms Mann and Sara Southern-Welsh each gave evidence which was relevant to whether there was an opportunity for the accused to have committed the offences charged while there were no other adults present in the house. 40 Ms Mann confirmed that she did not spend very much time around her own family after Natalia was born and prior to moving to Elizabeth Grove in 2011. After she moved to that address, there was a period of time when she visited the accused and his partner “quite frequently”. She said it was as frequently as daily, and included daytime and nighttime visits, although never after 8 pm.45 She and Natalia would travel to Walpole Street by either walking or a taxi. On occasions when she left the house with Laura Southern-Welsh she trusted the accused to look after Natalia and the other children who were left at home. They would leave the house either to go food shopping together, or to purchase marijuana. They would travel by taxi or bus to do the shopping. Ms Mann said neither the children nor the 40 MFI P1A TS 59-60. 41 The transcript at 80 records an answer “only stayed there about four times”. My recollection of the recorded evidence, assisted by a contemporaneous note is that the witness said “I want to say about four times”. 42 MFI P1A TS 84. 43 MFI P1A TS 90-91. 44 MFI P1A TS 92. 45 TS 21. -- 9 of 28 -- [2026] SADC 94 8 accused ever came on the shopping trips. She said she could not tolerate bickering between the accused and his partner in public and the children were too annoying to take with them.46 She said she would never take children with her when she was going to “score drugs”. 41 Ms Mann’s recollection was that Natalia stayed overnight at the accused’s home during some school holidays and weekends. Natalia was an only child and staying with the accused gave her the opportunity to spend time with her cousins. She could not be precise about how many overnight stays Natalia had, but she estimated it at more than ten.47 42 Ms Mann said there were several occasions when she returned to the Walpole Street address to find Natalia upset about something. She understood that the twins referred to earlier had been teasing and bullying her. There were occasions that she found Natalia at the nearby park, upset. Ms Mann thought that the park was somewhere that Natalia would go if she needed a safe place when she was upset.48 43 Ms Mann was cross examined about the detail of the shopping trips she said took her regularly away from the house where she left Natalia with the accused. During cross examination she became frustrated and found it difficult to answer the question as asked. She gave evidence about the assistance she provided to the accused and his family and the way they behaved towards one another, and sometimes, towards her. It was clear that she held strong feelings towards both the accused and his partner Laura Southern-Welsh. Her evidence was that they were aggressive and violent towards one another. That evidence is relevant to explain the reasons why she would never visit the shops with both of them together, but has no other permissible use. I do not reason from this evidence that the accused was an aggressive or violent person, and therefore more likely to have committed either of the offences charged. 44 In cross examination Ms Mann was taken to statements made to police during the investigation. She agreed that she told the police in a statement on 8 February 2021 (speaking about the frequency of her visits to the Walpole Street address) that “I would go there from time to time but I didn’t like spending time there because Alby [the accused] and Laura would always fight”.49 She was asked about the difference between what she said in her statement and her evidence that she attended as often as daily. Her explanation was difficult to follow. She did not accept the proposition that she visited Walpole Street only one or two occasions in total.50 45 She was taken to an earlier statement to police and she agreed she had said “there were times that we would go shopping together [referring to Laura 46 TS 24. 47 TS 27. 48 TS 28-29. 49 TS 49. 50 TS 50. -- 10 of 28 -- [2026] SADC 94 9 Southern-Welsh] but it was not often”.51 Again, her responses on the topic of this out of court statement were difficult to follow. She said that she could not be sure that she had used those exact words, she may not have got her words right, and at the time she was speaking to the police she was “thrown off”.52 46 Ms Mann gave evidence that she has struggled for most of her life with poor mental health. She denied that her medication or mental condition had any significant impact on her memory. At the time she gave evidence she was not taking any medication, as the medications which were available did not work for her. She described herself as “unstable at the moment” and said she was suffering anxiety during the process of giving evidence.53 She said her history of taking illicit drugs had not affected her memory, but that she had put out of her mind some memories when it comes to family that she wants nothing to do with.54 She later agreed that she did have problems with her memory, describing it as taking some time for her brain to catch up.55 47 Ms Mann had made two statements to police on important topics which were inconsistent with her evidence in court. I have had regard to those inconsistencies in assessing what weight I am prepared to place on her sworn evidence about opportunity. Further, Ms Mann has a complex history of mental health struggles. She struggled to retain her composure and follow the questions during evidence. I do not criticise her for that. Her evidence touched on very difficult topics and she did not have the benefit of medication for any of her conditions. I conclude that while Ms Mann was doing her best to tell the truth, her evidence was unreliable on important topics such as frequency of visits to the Walpole Street premises and frequency of shopping trips where the children were left alone. I have not relied on her evidence except where it is supported by other evidence which I find credible and reliable. 48 During her evidence, Ms Mann became distressed at certain points. At one point her evidence was stopped because she was experiencing nausea related to distress. The background to that distress was that she had accidentally come across the accused in the precincts of the court. I draw no inference at all from Ms Mann’s reaction to that meeting, or from her distress and nausea at different points. Sometimes demeanour is a useful tool in the assessment of witnesses. Given the complexities of Ms Mann’s presentation, I did not find any exhibited distress probative of the truth or reliability of her evidence. 49 Sara Southern-Welsh, Laura Southern-Welsh’s sister gave evidence.56 She described visits that she made to the Walpole Street address while the accused was 51 TS 53. 52 TS 53. 53 TS 54-55. 54 TS 55-56. 55 TS 63. 56 I will refer to this witness as ‘Sara’. I mean no disrespect by using her first name, but use it to distinguish her from her sister who has the same surname. -- 11 of 28 -- [2026] SADC 94 10 living there. Prior to 2014 Sara visited the address frequently. She said her sister and the accused helped her raise her children and she and her sister looked after their father together. Ronald Welsh, the sisters’ father, had kidney failure and passed away in October 2014.57 He also lived in Davoren Park. Sara Southern- Welsh lived and worked in the southern suburbs and would visit Walpole Street on weekends and during some afternoons, staying overnight then getting her children to school the following morning.58 50 Sara Southern-Welsh knew Ms Mann as the accused’s sister. She could not recall when she first met her, but recalled that it was at the Walpole Street house. She described their relationship as respectful but fleeting and brief. She described Ms Mann as a quiet and reserved person.59 During the time that she was visiting Walpole Street she estimated she crossed paths with Ms Mann at the address between 10 and 12 times.60 She knew Ms Mann’s daughter Natalia. She had seen her at Walpole Street more often that she had seen Ms Mann. She recalled that Ms Mann would be “dropping her off at like, you know, over sleepovers and holidays and things like that. I would see her playing with the kids and whatnot.”61 She confirmed that Natalia did have sleepovers at Walpole Street. Sara Southern-Welsh was asked about whether Natalia was left in the care of the accused alone:62 Q Was there ever a time when you were at Walpole Steet when Alby [the accused] was left in charge of looking after [Natalia]? A Yeah, well I’m only assuming so because he’s always left in charge of all the kids. That was his sort of role. I was busy working and Laura would be at the hospital and stuff and Alby would be looking after the kids. So yeah, that was what he did. … Q On occasions would you and Laura leave the house together? A Yep. Q What type of things would you do with Laura when you did that? A Just like normal life. Like errands, doctors, dad, shopping. We had to go and do all the sourcing of anything really because that’s what we were, Albert was suffering with agoraphobia pretty badly at that place…as long as I have known him he has always had issues with anxiety and mental health and stuff like that. He has always worked on it and obviously, you know, grown skills …I didn’t meet him for the first few months when they were together because he used to climb in Laura’s window to come and see us…After that he got used to being part of the family and stuff and 57 P9, Agreed Fact 4. 58 TS 65. 59 TS 67. 60 TS 67. 61 TS 67-68. 62 TS 68-69. -- 12 of 28 -- [2026] SADC 94 11 didn’t like leaving the home. He really only liked kids and wasn’t really trusting with adults, that was all. 51 Sara told the court that if she left the house with her sister, they would usually leave the children at home with the accused.63 52 In cross examination Sara told the court that around the time that her father was very sick and passed she resorted to illicit drugs to cope. She said that those choices had affected her memory, but not for the important things.64 She disagreed with the suggestion that she had only seen Ms Mann and Natalia at the Walpole Street address about two times.65 She said she did not think she could be wrong about that, and she did pay attention to the children even with all the competing things she had going on in her life at the time.66 53 Sara Southern-Welsh was an impressive witness. She gave thoughtful and considered answers which revealed no particular animus or agenda against the accused. Where she had drawn an inference (for example, the accused being left alone with Natalia) she said so and explained the basis for her conclusion. She was honest about the life choices that had led her to take illicit drugs over a period of time. I accept her evidence of the frequency of her interactions with Ms Mann and Natalia at Walpole Street. Her evidence was consistent with the evidence given by Natalia about staying at the house on weekends and school holidays, and playing with the younger children who lived at that house. Her evidence was consistent with Ms Mann and Natalia’s evidence that the accused rarely left the house, but remained at home in charge of the children. 54 Ms McCarthy, Sara Southern-Welsh’s daughter and the accused’s niece, gave evidence. She was born in 2007 so was only a small child at the time relevant to these allegations. She had some limited memory of attending the accused’s house at Walpole Street, and more memories of attending the accused’s house at Charmouth Street, Davoren Park.67 She could not recall meeting Ms Mann and she had heard of Natalia but could not be certain whether she had ever met her.68 Ms McCarthy did recall that at Charmouth Street she was left in the care of the accused with no other adults present, and she never saw him go shopping with Laura Southern Welsh. She said, “it was pretty common knowledge that Alby didn’t like to leave the house”.69 55 The accused gave evidence at a previous trial and the transcript was tendered on the prosecution case.70 His evidence on the topic of opportunity was that from 63 TS 71. 64 TS 74. 65 TS 74. 66 TS 74. 67 TS 76. 68 TS 77. 69 TS 78. 70 P7. -- 13 of 28 -- [2026] SADC 94 12 2011 to 2013 he did not really have a relationship with his sister Ms Mann.71 He said during that period of time neither Ms Mann nor Natalia came over to the Walpole Street house.72 56 The accused was then asked about twin girls who lived in a house near Walpole Street, Milena and Melitsa Stamenkovic. He said that there was an occasion where Natalia was at Walpole Street when the two girls were also present, and the three girls argued. As a result of the argument Natalia ran off.73 He said that he had never gone to the nearby park identified by Natalia. He said to his knowledge, Natalia had never gone to that park.74 57 The accused told the court that when the family needed to do shopping, he and his partner and the three children would all go together to the local shops.75 He denied that Laura Southern-Welsh ever went shopping with her sister Sara or with Ms Mann. He claimed that he accompanied his partner shopping to “help her with her anxiety and stuff”.76 58 He denied that Natalia or Ms Mann ever visited the house during school holidays and stated that Natalia never spent time at the house at nighttime or on an occasion when he took a shower.77 He denied committing the two offences charged. 59 In cross examination the accused confirmed that at the time he was living at Walpole Street he did not go out and socialise with friends. He did not leave the house during the day for activities, preferring to remain at home with his domestic fish. He confirmed that he lived with anxiety, depression and paranoia and that there were no occasions back in 2011-2013 that he could recall leaving the house.78 He then adjusted his answer to clarify that he did leave the house to go shopping as a family. He said it was not possible that he ever stayed home while the rest of the family went shopping.79 His mental health on those trips was good because he was with his family.80 60 The accused agreed that he was responsible for caring for their children within the family, and that he had no assistance from anyone in doing that work. He also said that there were times that he supported Mr Welsh (his partner’s Father) before he passed away by washing and folding his clothes.81 This required 71 P7 TS 135. 72 P7 TS 135. 73 P7 TS 137. 74 P7 TS 139. 75 P7 TS 139. 76 P7 TS 140. 77 P7 TS 143. 78 P7 TS 152. 79 P7 TS 175. 80 P7 TS 152. 81 P7 TS 164. -- 14 of 28 -- [2026] SADC 94 13 him to leave the house. The accused said that he did leave the house to assist Mr Welsh.82 61 In cross examination the accused said Ms Mann had come to see him at Walpole Street a “couple of times” and would watch television.83 He was certain she did not visit more than twice, and those visits occurred during the day. He could not recall if the visits were weekdays or weekends. The accused initially denied that Natalia ever came over to the Walpole Street house.84 When asked about the Stamenkovic twins he amended his answer, saying that she had in fact been to the house twice.85 When pressed he described in some detail what Natalia did on the occasions she visited.86 He denied that Ms Mann or Natalia had ever come over together, or slept overnight at Walpole Street. He later accepted that Ms Mann “might have stayed one night”.87 62 Through cross examination he remained adamant that Laura Southern-Welsh never left his home alone. He said she did not have any friends or family to visit and they would attend medical appointments together. He said there was no possibility that she ever left him home alone in the house.88 63 I did not have the advantage of seeing and hearing the accused give the evidence I have outlined in person. I have considered the possibility that the improbabilities and contradictions were resolved by the way in which the evidence was given. I consider that unlikely. I find the accused’s evidence was inconsistent and improbable. I do not consider it plausible that between 2011 and 2013 there was no occasion on which he was away from his partner. I consider his evidence that on every shopping trip he and his partner and children all attended was similarly implausible. On both these topics the accused would not accept any possibility he was mistaken.89 His complete certainty on those topics over ten years later is implausible. 64 My conclusions about his evidence are also informed by the extent to which his evidence was inconsistent with the generally consistent picture painted by the evidence of Natalia, Sara Southern-Welsh and, to a more limited extent, Ms Mann and Ms McCarthy. I found Natalia and Sara Southern-Welsh in particular to be credible and honest witnesses. Their evidence about the general circumstances in which Natalia would spend time at Walpole Street was consistent. 65 I exclude as a reasonable possibility the accused’s evidence that he was never at home without another adult being present, and that his partner Laura Southern- Welsh never went and did the shopping without him. I find that his 82 P7 TS 157. 83 P7 TS 161. 84 P7 TS 135, 143. 85 P7 TS 135, 137. 86 P7 TS 162. 87 P7 TS 166. 88 P7 TS 176. 89 P7 TS 176. -- 15 of 28 -- [2026] SADC 94 14 evidence on that topic was internally inconsistent, implausibly firm and inconsistent with that of other witnesses whose evidence I found credible and reliable. 66 I am satisfied beyond a reasonable doubt that Natalia did spend some weekends and school holidays at the accused’s home, including overnight stays. I am satisfied beyond a reasonable doubt that there were occasions when she was left at the Walpole Street house with the accused as the only supervising adult. Uncharged Discreditable Conduct 67 In 2013 Natalia moved to Victoria, then New South Wales, then Queensland. She returned to South Australia in March of 2015.90 While she was away the accused maintained contact with her via Facebook Messenger. It was mostly “normal conversation” that Natalia ignored. She said that the accused used a Facebook account called ‘Laura Andfamily Welsh’ to communicate with her.91 68 Natalia said that at some point after the charged acts she received a message from the accused on Facebook Messenger containing images of an erect penis. In one image she could see a torso attached to the penis and the groin area captured in the photo. Natalia recognised the person shown in the image in part because of the presence of a skin irritation that the accused suffered from. Natalia’s recollection was that she screenshotted the images and sent them to her Mother, Ms Mann via Facebook Messenger. She told her mother the images had been sent to her and she thought that it was evident where the images had come from because the originating Facebook account was captured in the screen shots.92 Natalia did not retain the images or the screenshots.93 69 Separately to her memory of sending the screenshots, Natalia gave evidence that she recalled an argument she had with her mother when the two of them were living together in Queensland. She could not recall what the argument was about, but she did recall that her mother smashed her mobile telephone during the argument.94 70 Ms Mann gave evidence on this topic. Her recollection of the circumstances in which she saw pictures of an erect penis was at odds with the evidence given by Natalia. Ms Mann’s recollection was that when she and Natalia were living in Queensland, they were sitting watching a movie together. Natalia had some pictures on her mobile telephone that had been sent to her. Ms Mann saw two images, one an erect penis and the second an erect penis with a hand around it.95 She saw the hand had a ring on it which she recognised as belonging to the accused. Ms Mann said in her evidence initially that she reacted to seeing the images by 90 MFI P1A TS 44. 91 P5. 92 MFI P1A TS 47. 93 MFI P1A TS 85. 94 MFI P1A TS 45. 95 TS 33. -- 16 of 28 -- [2026] SADC 94 15 throwing the phone. She did so because Natalia told her it was the accused’s penis and she found it disgusting to look at her brother’s penis.96 She could see that Natalia had received the images via Facebook Messenger.97 71 Ms Mann’s evidence in chief extended over two days. On the second day, the questions returned to the topic of the images of the erect penis. Ms Mann gave evidence that she did not know that the penis in the images belonged to her brother when she was shown it. She said although she saw the ring in the second photo, she did not recognise it at the time as belonging to her brother.98 Her evidence was that the images were disgusting because her daughter was underage and she told Natalia to go to the police. 72 In cross examination Ms Mann’s evidence on the topic became confused. She initially agreed that she did not know whose penis it was when she was shown it, but then gave the following evidence:99 Q But you did not ask her who it was from [the images]? A I did but she didn’t answer me straight away and then when she did I was even more disgusted because I didn’t need to see my brother’s penis. I didn’t need to know it was my brother’s penis neither to be honest. Truthfully I still wish she’d lied to me about that to be honest, that was one thing I wish my daughter could have lied to me about because then I can get those images out of my head. 73 Ms Mann was then taken to a statement she made to the police on the same topic. She agreed that she told the police in a statement that Natalia had told her the images of the penis were from the accused, and as soon as she heard that Ms Mann threw the mobile telephone out of anger.100 74 The accused denied sending photographs of his penis to Natalia using Facebook Messenger after she moved away from Adelaide. He said that he did not use Facebook Messenger at all between 2015 and 2018. He said there was one occasion only when he used that service to message Ms Mann. That answer was given in response to a reminder by the cross examiner that he had been shown print outs of messages sent via Facebook Messenger earlier in the day.101 75 Sara Southern-Welsh gave evidence that both when the accused was living at Walpole Street, and after he and his family moved to another address, she communicated with him using a Facebook Messenger account. The account was shared between the accused, his partner and his family.102 She said she could easily identify when it was the accused messaging her and when it was Laura Southern- Welsh. Their communication, style, writing and language skills were 96 TS 34. 97 TS 34. 98 TS 39. 99 TS 57. 100 TS 59. 101 P7 TS 168. 102 TS 71-72. -- 17 of 28 -- [2026] SADC 94 16 quite different.103 The accused spent a lot of time on his own and he appeared to enjoy the adult contact via Messenger communications.104 The messaging from that account was ongoing in 2015. 76 Ms McCarthy also confirmed that during 2018 and 2019 she communicated with the accused, via a Facebook Messenger account he shared with his partner Laura Southern-Welsh. She recognised the profile in exhibit P5 as the profile used by him during that time frame.105 77 Ms Mann’s evidence was that she communicated with the accused after she moved to Queensland via Facebook Messenger. She said she could tell from the style and spelling of the communication whether the accused or Laura Southern- Welsh was the author. Ms Mann identified photographs taken of her mobile telephone showing messages that she exchanged with the accused as late as 2017.106 78 I exclude as a reasonable possibility the accused’s evidence that he did not use Facebook Messenger at all between 2015 and 2018, with the exception of a single identified message with Ms Mann. His evidence is inconsistent with the evidence given by Natalia, Ms Mann, Sara Southern-Welsh and, to an extent, Ms McCarthy and exhibit P6. 79 The images of the penis were not retained. Natalia said she did not want to keep them. The precise time frame and context of the messages is unclear. Natalia’s evidence is that she and the accused continued to communicate via Messenger after she moved away, but that the chat was not sexualised, and she, for the most part, ignored it. On her account, there is a significant time gap between the offending conduct and the sending of the penis images. The images came out of the blue and were not associated with sexualised messages of any other kind. There was a period of some years between the charged acts and the sending of the images. Neither Natalia nor Ms Mann were able to provide any further detail about the messages. I outline later the forensic disadvantage to the accused associated with the loss of those images. 80 I find it proved that Natalia received images of the accused’s penis via his Facebook Messenger account. I am satisfied on the basis of Natalia’s evidence supported by the evidence of Ms Mann. However, the differences in the evidence about the circumstances in which the images were sent and received, and the precise identifying features depicted in the images makes me cautious about what inferences I am able to draw from that evidence. 81 The prosecution argued that if I found it proved that the accused sent the penis images, I could use that evidence in two ways. The first is to infer that the accused had a sexual interest in Natalia, and a willingness to act on it. This is a 103 TS 72. 104 TS 72. 105 TS 79. 106 P6. -- 18 of 28 -- [2026] SADC 94 17 use that relies on propensity reasoning. The second use is that the evidence rebuts an inference that might otherwise be drawn about the expected relationship between uncle and niece. That is, it rebuts an inference that the accused is unlikely to behave in a sexualised manner towards Natalia because of their familial relationship.107 This is a non-propensity use. 82 In the circumstances that I have already outlined, I do not consider that the evidence supports an inference that the accused had a sexual interest towards Natalia and a willingness to act on it at the time of the alleged offences. I do not use the evidence to reason in that way. 83 Secondly, I would not consider that the familial relationship between the accused and Natalia bears on the probability of the allegations having occurred. There is a growing awareness that sexual abuse happens within families, and the existence of a familial relationship does not undermine the probability of an allegation of that kind being true. In those circumstances there is no natural inference to be rebutted by the evidence and it does not have probative force in that regard. 84 The sending of the penis images is discreditable conduct for the purposes of section 34P of the Evidence Act. As I have set out above, I do not consider that the evidence can properly be used for any permissible purpose. Further, I direct myself that the evidence may not be used to reason that the accused had a propensity to sexualised behaviour or was a bad person generally. I direct myself that I must not reason that he has a generalised propensity that makes it more likely that he committed the offences charged. I have not reasoned in that way in the course of my assessment of the evidence. Further, while I am satisfied that Natalia’s evidence about the penis images was truthful, as far as it went, I have not used it in the ways submitted by the prosecution. This conclusion does not reflect adversely on Natalia’s evidence or undermine my findings about her credibility and reliability. 85 During the course of her evidence Ms Mann referred to the accused staying with her in Coober Pedy. She said he became aggressive during that period and she “had to kick him out”.108 The permissible use of this evidence is that it is part of the narrative led about the relationship between Ms Mann and the accused. It is marginally relevant to her relationship with him. It is evidence that falls within section 34P of the Evidence Act however, and I direct myself that the evidence may not be used to conclude the accused is a generally aggressive person, or a person of bad character. I have not reasoned in that way. 86 Ms Mann gave evidence concerning sourcing and smoking cannabis with the accused and his family. That evidence is relevant to the reason why Ms Mann would leave the accused at home alone with the children, including Natalia. That 107 TS 103. 108 TS 17. -- 19 of 28 -- [2026] SADC 94 18 is its permissible use. It is also evidence of bad character, and I direct myself that I may not use the evidence to reason that the accused is or was a person of bad character and therefore more likely to have committed the offences charged. I have not used the evidence against the accused in any way apart from the permissible use I have identified. Complaint 87 No initial complaint pursuant to section 34M of the Evidence Act was led on the prosecution case. Counsel for the accused, however, led evidence about opportunities that Natalia had to complain when she had contact with SA Police about other issues. 88 Natalia was asked in cross examination about two occasions on which she had contact with SA Police on other matters. She agreed that in 2017 she was in a relationship with a man who, she discovered, had (I infer) inappropriate images of her underage cousin on his mobile telephone. She agreed that that discovery led to her making a report to police in company with her cousin, including providing a formal statement about the matter. She agreed that during that contact with the police she did not mention that she had been the victim of sexual assault at the hands of the accused. She said she did not do so because she did not want to tell anyone, and she had “locked it away and kept it locked away from childhood trauma”.109 She agreed that there was nothing preventing her from telling the police about the allegation at that time. 89 Natalia also agreed that in 2018 she spoke with SA Police about a domestic situation involving a former partner. She made a formal statement to police about those matters but did not mention the allegations about the accused. She said she had “blocked out” her experiences and she did not tell the police at that time either. Natalia said that on both occasions she had contact with police about other issues it did not occur to her to tell them about what the accused had done. 90 It was argued that a failure to complain in circumstances where she had contact with law enforcement should be taken into account in assessing the weight to be given to her evidence. To enable a proper assessment to be made of this submission the prosecution led evidence about the circumstances in which Natalia eventually did disclose to law enforcement. This was not led as initial complaint and I have not used the evidence in the ways contemplated by section 34M of the Evidence Act. 91 Detective Brevett Sergeant Sarah Brown is the investigating officer for this matter. On 7 December 2020 she made a telephone call to Natalia. During that call she asked Natalia if she knew the accused. In response to that question, Natalia made a report of sexual offending that resulted in the charges before the court.110 109 MFI P1A TS 82. 110 TS 82. -- 20 of 28 -- [2026] SADC 94 19 In her evidence Natalia confirmed that during the phone call with Brevett Sergeant Brown she disclosed an incident with the accused.111 92 Section 34M(2) of the Evidence Act prohibits counsel or the Judge from making any suggestion or statement to the jury (the fact finder) that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s consistency of conduct. The prohibition does not extend to prevent evidence being called which is relevant to that question, and it does not prevent the finder of fact from taking failure or delay in complaint into account. The prohibition in 34M(2) applies only to prevent counsel or the trial judge from making any comment to the jury on the topic.112 93 Here, the defence submission was not that the failure to complain was of itself of probative value, but her failure undermined her credit in circumstances where she had contact with SA Police in relation to other issues. The proper assessment of that submission, and the question of the weight to be given to the failure to complain must be seen in the context of the circumstances in which Natalia did eventually complain to the police (which is not advanced as the initial complaint within section 34M). 94 In assessing this evidence, I have regard to the fact that there will be varied reasons which will inform when and how a person speaks to anyone, including to the police, about sexual offence allegations. Natalia’s evidence was that she did not complain to her mother at the time because her mother was in poor mental health and she did not want to trigger her. She said she put the matter out of her head and tried not to think about it. Natalia said when she received the call from Detective Brown she “felt like it was time for me to stop being so silent and that it was time for me to actually come forward and say something.”113 95 There is a growing awareness in the community that it can take time, sometimes years, for victims of sexual assault, especially children, to disclose what has happened to them. This is especially so when the abuse is alleged to have occurred within a familial relationship in light of the complexities presented by the surrounding relationships. The evidence supports the conclusion that Natalia’s childhood and relationship with her mother was complex and unsettled. Ms Mann had complex mental health issues that adversely impacted her ability to provide a secure environment within which Natalia could complain. 96 The contact that Natalia had with SA Police did not relate to issues aligned or associated with the conduct of the accused or her own sexual abuse as a child. I do not consider that her credibility is undermined simply because she had contact with the police on other occasions on other topics without disclosing this matter. 111 MFI P1A TS 51. In her evidence Natalia refers to the police officer as “Sarah Munn”. This was the name Brevett Sergeant Brown used at the time she spoke to Natalia. 112 R v Jones [2018] SASCFC 80 at [107]–[129]. 113 MFI P1A TS 96. -- 21 of 28 -- [2026] SADC 94 20 97 There is no evidence of initial complaint to ground any inference about consistency of conduct. Equally, I do not conclude that the evidence of a delay or failure to complain undermines Natalia’s credibility or reliability, or the plausibility of her evidence. Lack of Grooming 98 On Natalia’s evidence, the two charged offences occurred out of the blue and were not preceded by grooming behaviour. Further, there was no evidence that the accused made threats or promises to secure Natalia’s silence about what had happened to her. It was submitted that it was illogical that the accused would take the risk of moving straight to a forced act of fellatio without first testing the waters, and that he would leave Natalia with no instruction about remaining silent about what he had done. The evidence established that the accused and Natalia had a good relationship. Natalia said she “had an actual connection with them, well with Alby. It was like how the connection was in Kadina. So it was loving and caring, and same with Laura”.114 The accused was the primary carer for the children and she was often left in his care. I do not conclude that in those circumstances the narrative is implausible. While a more common pattern associated with childhood sexual abuse is a level of grooming in the beginning, each case is different. The relationship between the child and the adult is individual and will dictate the approach taken to secure co-operation and silence. Where there is a prior good relationship and connection, overt acts of grooming may not be necessary to secure co-operation. 99 It is also necessary to note that on the prosecution case, after the first allegation, Natalia behaved as if nothing had happened. She did not flee the house and she did not tell her mother. That evidence is relevant as a piece of circumstantial evidence which bears on the plausibility of the accused being emboldened to commit the offence charged as count two. 100 The evidence of the first count is also relevant to Natalia’s reaction and greater resistance to the accused at the time of the second allegation. Her understanding of what the accused was doing and the fact that it was now a repeated occurrence informs her reaction (crying, vomiting and fleeing to a nearby park). 101 I have used the evidence on count one as a relevant circumstance when I assess the evidence on count two in those ways. I have not used the evidence relevant to count one and two cross admissibly in any other way. In particular, I have not reasoned that the accused is the kind of person to commit a sexual offence against a child, or that he is a person of poor character more generally and therefore more likely to have committed the offence charged. 114 MFI P1A TS 28. -- 22 of 28 -- [2026] SADC 94 21 Other Relevant Circumstances 102 Ms Mann gave evidence about a change she observed in the relationship between the accused and Natalia. In examination in chief she said that the relationship was good, they would laugh and play together. She said though that “by the end she didn’t even want to call him Uncle, it was straight out Alby”.115 Natalia stopped wanting to visit Walpole Street and Ms Mann did not force her.116 103 In cross examination Ms Mann confirmed that Natalia stopped calling the accused ‘Uncle’ around the same time that she stopped wanting to visit Walpole Street.117 Ms Mann was taken to a statement that she made to police on 8 February 2021, and she agreed she had told the police (speaking about when she was shown the penis photographs) “I then asked who they were from and she said Alby, as soon as she said it I threw the phone out of anger, I was horrified that I had just seen my brother’s dick. Prior to this conversation [Natalia] always called him Uncle Alby but during this conversation she called him Alby. Since this conversation she has only referred to him as Alby”.118 Ms Mann explained that when she gave that statement her brain was foggy, and she was on different medication. She said that her out of court statement did not represent the truth of the situation. 104 In light of the significant inconsistency between the out of court statement and Ms Mann’s evidence, I have not placed any weight on her evidence that she observed Natalia referring to the accused as “Alby” rather than “Uncle Alby” when she stopped visiting Walpole Street.119 105 Natalia agreed in cross examination that she had contact with the accused after she reached adulthood and had a child of her own. She agreed that in 2017 and 2018 there were occasions that she left her child with the accused while she attended the gym or did food shopping.120 She clarified that she only left her child when the accused’s partner Ms Southern-Welsh and her cousin, who was staying there at the time, were at home.121 She handed her child to Ms Southern-Welsh to care for.122 106 I do not consider that Natalia’s behaviour undermines the plausibility of her evidence that she was sexually abused by the accused. Natalia’s child was between 2 and 3 years of age at the time, significantly younger than Natalia had been at the time of the alleged abuse. Her child was handed to Ms Southern-Welsh and not the accused, and Natalia understood that her child would not be cared for by the 115 TS 27. 116 TS 27. 117 TS 56. 118 TS 59. 119 Ms Mann’s evidence about a change in Natalia’s willingness to visit Walpole Street was consistent generally with Natalia’s evidence. 120 MFI P1A TS 88. 121 MFI P1A TS 89. 122 MFI P1A TS 96. -- 23 of 28 -- [2026] SADC 94 22 accused on his own. She said, “I trust Laura and my cousin was there”.123 While I accept that others may make different decisions about the care of their children, Natalia’s behaviour was not necessarily inconsistent with her evidence, and I do not conclude that it undermines the plausibility of her account. 107 During his evidence the accused told the court about numerous tattoos that he had on his body. He said that he had his daughter’s name and his partner’s name on his forearms, and heavily tattooed areas on the inside of each forearm.124 He also described tattoos on his leg. He denied that he ever wore jewellery.125 108 The accused gave evidence that on the foreskin of his penis he had a skin tag that he drew as being about 3 mm in length.126 He said the skin tag was prominent both when his penis was erect and not erect.127 He described a skin condition that he had lived with his whole life which causes blemishes to his chest and back, but not his genitals.128 109 Ms Mann was cross examined about what tattoos the accused had on his body. She knew he had tattoos but could not recall which ones precisely. She said he did not have tattoos on his hands at the time she was visiting. She could not recall if he had tattoos on his forearms, noting that the accused usually wore long sleeved shirts because of his skin condition.129 110 Natalia knew that the accused had tattoos but she could not recall specifically what and where. She identified that he had a clown on his left arm. She could not remember whether he had tattoos on his forearms or hands. She could not recall any of the little bumps that she associated with the accused’s skin condition on his genital area. She could not recall whether he had a skin tag on his penis. She did not know if his penis was circumcised or uncircumcised.130 111 I do not consider Natalia’s inability to accurately recall the accused’s tattoos to undermine the plausibility of her evidence. I do not consider that a child placed in the position she described would necessarily observe and commit to memory details like tattoos on his arms and or hands. I consider it much more likely that her attention was directed at understanding and negotiating the situation that she alleged she was in. For the same reason I do not consider it of much weight that she did not recall a small skin tag that the accused described as being present on the foreskin of his penis. 112 Secondly, I do not consider her inability to identify whether the accused’s penis was circumcised or uncircumcised reveals anything about the weight that 123 MFI P1A TS 89. 124 P7 TS 140-141. 125 P7 TS 141. 126 P8. 127 P7 TS 154. 128 P7 TS 142. 129 TS 43. 130 MFI P1A TS 54-55. -- 24 of 28 -- [2026] SADC 94 23 should be given to her evidence. She described the accused’s penis as erect during her encounter and I would not expect a child to be able to ascertain whether the penis was circumcised or uncircumcised in those conditions. 113 During the trial an image of the premises at Walpole Street was tendered. Natalia identified the image as the house that she visited.131 Ms Mann132 and Sara Southern-Welsh133 each confirmed that the image represented the appearance of the house at the time the accused was living there. In his evidence the accused described the front of the house as having windows all the way across the front of the lounge looking out to the street.134 The outside of those windows could be seen in the image of the house. He said that the curtains over the windows were always open, and never closed.135 Counsel for the accused submitted that it would have been particularly brazen for him to commit an offence against a child in the loungeroom in circumstances where the curtains to the front of that room were open. The accused’s evidence was that the curtains were always open, but did not provide any evidence about what view into the house was available from the street. 114 Counsel for the prosecution asked me to infer from the photograph that the interior of the house could not be seen from the street, so there was no need for the curtains to be drawn. I am unable to draw such an inference from the photograph tendered. I cannot identify either way whether the interior of the lounge is visible from the street. 115 I am not able to make any finding about the position of the curtains in the loungeroom or the available view form the street. The circumstances in which the accused is alleged to have offended included a number of brazen features and the uncertainty about this circumstance does not undermine my conclusions on other topics. Forensic Disadvantage 116 The alleged offences were committed between 2011 and 2013, between 7 and 9 years prior to the matter being reported to police, and between 13 and 15 years prior to the matter being heard in this trial. 117 The delay has resulted in a significant forensic disadvantage to the accused in terms of his ability to test the evidence and identify evidence that might be relevant to his defence. The delay potentially causes him a disadvantage insofar as it reduces him to being able to make a bare denial of the allegations, without the ability to rely on alibi or other objective circumstances to challenge the prosecution case. 131 P2. 132 TS 18 133 TS 73. 134 P7 TS 137-138, referring to P3. 135 P7 TS 138. -- 25 of 28 -- [2026] SADC 94 24 118 As noted above, Natalia was unable to recall many details peripheral to the two occasions charged. This absence of detail makes it difficult to test her evidence by reference to inconsistent statements or other evidence. 119 The penis images which were relied on by the prosecution had been deleted by Natalia and could not be scrutinised as part of the testing of the evidence. This potentially places the accused at a disadvantage. 120 I have taken into account the disadvantages outlined above which have resulted from the passage of time, and the associated lack of available detail from the complainant when I have scrutinised the evidence relied upon by the prosecution. Those disadvantages are especially relevant to the assessment of the weight I am prepared to give Natalia’s evidence, in circumstances where the accused’s ability to test her evidence was compromised by the passage of time. Conclusions 121 For me to be satisfied beyond reasonable doubt about the elements of either or both offences charged, I must be satisfied that Natalia’s evidence was credible and reliable, and that it can be relied on beyond a reasonable doubt. Her evidence as to the specific offences charged is uncorroborated. 122 Natalia was 24 years old at the time she gave her evidence. She was working as a beautician and completing further study in that area. She had a daughter who was born in 2016. Natalia struck me as a thoughtful and careful witness. She was well spoken, but quiet. Her answers were responsive to the questions asked and she demonstrated an ability to correct questions or propositions which she did not agree with. 123 Natalia’s description of the charged acts focused on details that I would expect would occupy a child faced with the assault alleged. She spoke of the sensations of touch and taste, and the response of her own body to gag and choke. Her description of the accused scrunching her hair between his fingers at the time of the first count, and her recollection of him forcing her mouth open and the pattern of the floorboards imprinted on her knees at the time of the second count are examples of the colour and texture of her narrative that struck me as reflecting a real experience and not a fabricated account. 124 Natalia’s account was not shaken in cross examination. She gave a balanced account of her relationship with the accused, describing positive aspects of the connection that she had with him prior to the alleged offences. 125 Natalia could not describe many of the peripheral details to the two charged acts. This included how long the events took, whether they occurred on a weekend or school holidays, his and her clothing at various times, where other adults were at the time, and what tattoos were on the accused’s body. I do not consider this failure represents unreliability or a lack of credibility. If an account is fabricated peripheral detail may also be fabricated. Natalia was not prepared to add details -- 26 of 28 -- [2026] SADC 94 25 where they were not part of her genuine recollection. I do not consider her inability to provide such peripheral detail undermines her reliability or credibility. 126 Natalia’s evidence about opportunity was supported and for reasons I have outlined I exclude the accused’s account that he had no opportunity as a reasonable possibility. I have also, for reasons I have already explained, excluded his evidence on the topic of his use of the Facebook Messenger account as a reasonable possibility. I am satisfied beyond a reasonable doubt that the accused had the opportunity to commit the two offences charged. 127 The accused gave sworn evidence denying the offences. His evidence on the topic of opportunity and his use of Facebook Messenger were excluded as reasonably possible by plausible and credible evidence from other witnesses. His evidence was inconsistent on those topics between examination in chief and cross examination. His level of certainty about the family movements and habits lacked credibility. I did not find his evidence convincing overall. 128 If the accused’s evidence is a reasonable possibility, then I am obliged to acquit him of both counts. I remind myself that even if I reject his evidence as a reasonable possibility, I must still focus on the evidence called on the prosecution case and consider whether it proves the elements of either or both offences beyond a reasonable doubt. I remind myself that it is not a question of which evidence I prefer. 129 Defence counsel for the accused submitted that even if I rejected the accused’s evidence as a reasonable possibility, the evidence given by Natalia was not of a quality that could sustain a finding beyond reasonable doubt that the offences were committed. He submitted that if that was the case, then the prosecution would not have proved either charge. I remind myself that even if I reject the evidence of the accused as a reasonable possibility, to convict the accused, Natalia’s evidence must be of a quality that enables me to rely on it as to the specific acts beyond a reasonable doubt. 130 On all of the evidence called on the prosecution case I do reject the accused’s denials as a reasonable possibility. I am satisfied that he had the opportunity to commit both offences. 131 For all of the reasons I have outlined I find the evidence given by Natalia plausible and credible and I am able to rely on it beyond a reasonable doubt as to the two charged acts. 132 I find it proved that the accused had sexual intercourse with Natalia by causing her to perform an act of fellatio on him on the first occasion she described. I find that at that time Natalia was under the age of 17 years. I therefore find the accused guilty of count one. 133 I further find it proved that the accused had sexual intercourse with Natalia by causing her to perform an act of fellatio on him on the second occasion that she -- 27 of 28 -- [2026] SADC 94 26 described. I find that Natalia was under the age of 17 at that time. I therefore find the accused guilty of count two. -- 28 of 28 --