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R v K [2023] SADC 82 (7 July 2023)

Last Updated: 17 July 2023

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

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R v K

Criminal Trial by Judge Alone

[2023] SADC 82
Reasons for the Verdicts of her Honour Judge Kudelka

7 July 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

The accused is charged with sexually assaulting the complainant on 2 April 2021. He was the manager of a restaurant at which the complainant was employed. The complainant was then aged 15. The accused gave evidence denying that he committed any sexual acts.

Held: The accused is guilty of the three charged offences.

Evidence Act 1929 (SA) s 34M, s 34P, referred to.

Johnson v R  [2018] HCA 48 ; (2018) 266 CLR 106; Roach v R [2011] HCA 12; (2011) 242 CLR 610; R v Schulz (2016) 126 SASR 476; R v Ahmadi & Ors (2018) 131 SASR 64, considered.

R v K
[2023] SADC 82

1. The accused is charged with unlawful sexual intercourse with a person under 17 years (count 1)^[1], indecent assault (count 2)^[2] and indecent assault (count 3)^[3].
2. It is alleged that on 2 April 2021 he penetrated the complainant’s vagina with his finger (count 1), kissed her using his tongue (count 2) and squeezed her left breast (count 3).
3. At the time of the alleged offending, the accused was the manager of a restaurant in the Adelaide hills. The complainant was an employee, then aged 15. The owner of the restaurant was a friend of the accused and a friend of the complainant’s family.
4. There is no dispute that the accused and his partner took over management of the restaurant in late 2020. Nor is there any dispute that the complainant started working at the restaurant in late 2020. The complainant thought that she was working at the restaurant before the accused took over management. The accused gave evidence that he was not aware of the complainant working there before he commenced and thought she first worked there on 5 October 2020. Nothing turns on that discrepancy in the evidence.
5. There is no dispute that the accused was predominantly the pizza cook and the complainant’s role was to make pizza, wash dishes and assist with waitressing. Other people worked at the restaurant, including the accused’s partner, the restaurant owner and the complainant’s sister.
6. There is no dispute that on Friday, 2 April 2021 (Good Friday), the complainant and the accused were amongst a group of people who picked grapes at the property on which the restaurant was located. Prior to that day, the accused had asked the owner if he could make some wine. The group of people included members of the complainant’s family and other people who worked at the restaurant.
7. There is no dispute that after the grapes were picked and crushed, the accused drove his ute to an area on the property where there was a water tank and trough. The accused had 360 sheep agisted on the property. The complainant was his only passenger. The complainant alleges that the offending occurred when they were both sitting in the front seats of the ute. The accused denies committing any sexual acts.
8. The prosecution called evidence from the complainant, the complainant’s friend (Ms AB), the complainant’s father, the complainant’s sister and the investigating police officer. The prosecution tendered exhibits, including agreed facts.
9. The accused gave evidence in his defence. By doing so, he took on no onus of proof. The accused has a presumption of innocence in his favour and is not required to prove anything. The prosecution has the burden of proving each of the charges to the standard of beyond reasonable doubt.
10. There is no dispute that, if proved, the evidence given by the complainant satisfies the elements of each of the offences. The issue is whether the prosecution has proved beyond reasonable doubt that the acts the subject of each of the counts did in fact occur.

The evidence

11. At the time of trial, the complainant was 17 years old.
12. The complainant gave evidence that she had normal and friendly conversations with the accused when she first started working at the restaurant. She worked on weekends, usually both days. She received text messages from the accused on her phone about the rostering of her shifts.^[4]

Touching the complainant at work

13. The prosecution called evidence about occasions when the accused touched the complainant at work.
14. The complainant gave evidence about an occasion when she was working with the accused in front of ingredients in the kitchen. To get to an area in the kitchen, the accused put his hands on her waist and moved her out of the way.^[5]
15. The complainant’s father gave evidence that there were three occasions when he saw the accused touch the complainant.^[6] On one occasion he saw the accused grab the complainant on the waist to get past in the little alleyway going into the main kitchen. There was another occasion outdoors at the pizza oven. The complainant had two pizzas in her hands and was facing the accused who put his hands around her waist and guided her so he could get past. On another occasion, the complainant was delivering a couple of pizzas to a table. The accused was talking to people to see how their meal was going and he put his arm around her back. The complainant’s father gave evidence that ‘it was only a short thing’.^[7] The complainant’s father did not say anything to the accused about any of the occasions. He thought they had become good friends.
16. The accused gave evidence that he moved around quickly when he was making pizzas. He would move people to one side, either by a nudge or by placing his hands on their hips. These people would include his wife, the owner, the complainant and the complainant’s sister.^[8]

Slapping the complainant’s bottom

17. The complainant gave evidence that there were ‘probably two or three times’ when the accused slapped her bottom ^[9]. That behaviour started happening about two or three months before the alleged offences.
18. There was one occasion when she was taking out the bin because it was full. She stepped into the bin to try and ‘squish it down’. The accused came up behind her and slapped her on the bottom. He did not say anything. She thought it was a bit odd, but she did not want to think too heavily about it.^[10]
19. The accused denied ever slapping the complainant on the bottom.^[11]

Text messages in February 2021

20. The police photographed text messages on the complainant’s mobile phone which were sent to and from the accused’s mobile phone.^[12] In those messages, the accused often referred to the complainant as ‘miss’.
21. For 14 February 2021, the following messages were on the complainant’s phone:

    (i) From the accused’s phone: ‘U missed a big day miss. Hope u had a good trip away.’

22. For 20 February 2021, the following messages were on the complainant’s phone:

(i) From the accused’s phone: ‘Thankyou for today miss u a jet’.

(ii) From the complainant’s phone: ‘what would u do without me?’ with a laughing emoji.

(iii) From the accused’s phone: ‘I know right. Don’t wanna talk u up too much tho’.

(iv) From the accused’s phone: ‘U might start thinking I’m creepy’.

(v) From the complainant’s phone: ‘oh i already think ur creepy’, ‘aha’, ‘just kidding’

(vi) From the accused’s phone: ‘i can be cheeky’.^[13]

23. The messages at (iv) to (vi) were not on the accused’s phone when it was seized by the police on 9 July 2021. The accused gave evidence that he could not recall deleting messages from the complainant.^[14]

Snapchat and the ‘rewards’ message

24. The complainant gave evidence that the accused added her on Snapchat a few months before the alleged offending.^[15] She denied suggesting to him that he join Snapchat.^[16] She gave evidence that they would message via text message and Snapchat.^[17] They communicated on Snapchat ‘not every night but quite often...it started off normal and then work-related stuff and then that’s when it progressed’.^[18]
25. The accused gave evidence that he used to communicate with friends on Snapchat prior to meeting the complainant. She added him as a Snapchat friend.^[19] He communicated with her on Snapchat predominantly for work purposes. They were friends as well as colleagues. The complainant was more responsive on Snapchat than via text message.^[20] He and his wife sent out messages to staff about shifts via text and Snapchat.^[21]
26. The complainant gave evidence that a few days before the alleged offending, the accused sent her a message on Snapchat about the upcoming day on 2 April when people were organised to pick grapes at the vineyard. The accused messaged that there would be rewards for whoever picked the most grapes. The complainant gave evidence that he was very hesitant to tell her what those rewards were, but she eventually got it out of him. He messaged her that the rewards started off with a hug and then a kiss and then going down on each other.^[22] The accused told her not to keep any of the Snapchat messages.^[23]
27. The accused denied sending those messages.^[24]
28. The complainant gave evidence that the accused deleted her from Snapchat before the incident. They were not friends on Snapchat as at 2 April 2021.^[25] A user is notified on Snapchat if a person has ‘unadded you’.^[26] He deleted her from Snapchat only once.^[27] He added her again on 14 April 2021.^[28]

Discreditable conduct

29. The prosecution sought to lead the evidence set out above (that the accused touched the complainant at work, slapped her on the bottom, sent her inappropriate messages via text/Snapchat and sent her a ‘rewards’ message via Snapchat) as evidence of discreditable conduct which was admissible pursuant to s 34P(2)(b) of the Evidence Act 1929. The prosecution submitted that the evidence ‘shows that the accused has a particular sexual interest in the complainant’ which renders it more likely that the accused committed the charged acts. The prosecution submitted the evidence has no prejudicial effect because this is a trial by judge alone.
30. I ruled that the evidence was not admissible pursuant to s 34P(2)(b). In my view, the evidence was not strongly probative of a sexual interest in the complainant having regard to the issue at trial, namely, whether the accused sexually assaulted the complainant on 2 April. In combination, some of the evidence had some probative value, but it did not have strong probative value.
31. The prosecution submitted that, in the alternative, the evidence was admissible pursuant to s 34P(2)(a). It was evidence which provided background and context to the relationship between the accused and the complainant which may rebut any suggestion that the offending was out of the blue.
32. I ruled that the evidence was admissible pursuant to s 34P(2)(a). In my view, the evidence, if accepted, had a permissible contextual use.^[29] The probative value lay in its capacity to assist in evaluating the evidence of the offence. It was evidence of the relationship between the complainant and the accused which went beyond the boundaries of a boss/employee relationship. The evidence may serve to place the offence in context in circumstances in which evidence of the offence might otherwise present as inexplicable because it was ‘out of the blue’. It may also explain the accused’s confidence to act as he did at the time of the alleged offending. On the prosecution case, the accused had touched the complainant’s hips and slapped her bottom on prior occasions and the complainant had not responded adversely or complained. On the prosecution case, the accused had sent a message suggesting sexual rewards for grape picking and the complainant had not rebuffed him or told anyone.
33. In my view, the probative value of that evidence outweighed any prejudicial effect. I would not use the evidence impermissibly.^[30] I would not use the evidence to suggest that the accused is more likely to have committed the offence because he or she has engaged in the discreditable conduct.
34. After hearing the evidence at trial that the accused touched the complainant at work, I did not consider that evidence had any probative value in determining the issue at trial. As set out below at [84], I have not placed any weight on that evidence.

2 April 2021

35. The offending is alleged to have occurred on Good Friday. The accused gave evidence that he told the owner that he wanted to learn viticulture. He asked the owner if he could pick some grapes at the owner’s property to make some wine. A group of people had been arranged to go to the property on Good Friday to pick Merlot and Cabernet grapes.
36. The accused picked the complainant up from home at 6.00 am. The complainant gave evidence that the accused’s father and daughter were in the car.^[31] The accused gave evidence that only his father was in the car.^[32] Nothing turns on the discrepancy.
37. When they arrived at the restaurant, they had breakfast then started picking the grapes. The complainant thought there were 15-20 people helping to pick the grapes that day.^[33]
38. They finished picking at about 2.00 to 3.00 pm.^[34]
39. The grapes were then crushed. The complainant’s father took a video at that time.^[35] The crushing was completed between 3.00 and 4.00 pm.^[36]
40. The complainant gave evidence that once she got back to the restaurant, she was extremely tired and fell asleep.^[37] She thought she had a lie down at 3.00 or 3.30 pm.^[38] She remembers her father trying to wake her up, but she was too tired. The complainant’s father gave evidence about trying to wake the complainant, but she was too tired, so he let her sleep on a bed in the turret room. He had to leave to pick up some family members before they returned to the restaurant for dinner.^[39]
41. The accused gave evidence that he went to the pizza ovens at about 4.30 pm after the crushing was completed. He sat there with a group of people but then some people left, leaving him with the owner, the complainant and the complainant’s father.^[40]
42. The accused gave evidence that he left to go to the supermarket to get some groceries. According to his receipts, those purchases were made at 5.42 pm.^[41] He got back to the restaurant at about 6.10 pm. The complainant and the owner were present, seated at the tables outside the pizza ovens.
43. The complainant was not sure for how long she slept, but when she woke up, the owner of the vineyard was there.^[42] They sat down together at the restaurant. The accused pulled up in his car and asked if she wanted to come for a drive to pick up his motorbike. She said yes.^[43]
44. The accused gave evidence that when he arrived back at the restaurant, he told the owner that he was going to drive to fill up the trough for the sheep.^[44] The complainant said that she would come too and got into his car. He then remembered that he had his motorbike in the vineyard so asked her if she would mind driving his ute back if he rode his motorbike back. She said that she could not drive a manual, so he did not get his motorbike.^[45]
45. It was suggested to the complainant in cross-examination that when the accused arrived in his ute, he had a conversation with the owner about giving the sheep water. She did not recall any such conversation.^[46] She denied offering to go for a drive with the accused. She agreed that he suggested that she drive the car back so he could pick up his motorbike and she said she could not drive the ute because it was a manual.

The complainant’s evidence of the alleged offending

46. The complainant gave evidence that the accused drove up to a big tank on the hill. The accused asked her if she was ticklish, and she said no. He said, ‘I bet I can make you squirm’. She just laughed it off. She got out of the car because the sun was setting and there was a big ladder to the tank which she climbed up.
47. She got back into the car and the accused drove around to a trough because he wanted to fix it. He stopped the car. She was sitting in the passenger seat. He put his left hand up the left side of her shorts and then up into her underpants. She gave evidence that, ‘he fingered me, and then he started kissing me, and then meanwhile he was kissing me he took his finger out, and then he put his hand down the left side of my shirt and then grabbed the left side of my breast’.^[47] He fingered her by putting one finger in her vagina.^[48] She was wearing tight bike shorts and a purple exercise top. His hand went underneath the leg of the shorts to then put one finger inside her vagina which moved slightly, but not really.^[49] The grabbing of her breast was like a tight squeeze.^[50] He kissed her on the mouth with his tongue.
48. He asked her if he was going to get anything in return. She said no. He asked her if she wanted to kiss him. She asked why. He said because he has initiated all the kisses. She sat there, looked out the window and did not say anything.
49. He got out of the car to fix the trough. She went on her phone because she did not know what else to do. He came back and asked if she was telling all her friends what had just happened. She felt he said that in a joking kind of manner, but she could tell he was being serious about it. She replied, no.
50. They drove back to the restaurant.
51. Her parents were not there yet so she went to the toilet to get away for a little bit.^[51] She was in there for about five to 10 minutes. She was trying to get the taste of cigarettes out of her mouth. When she came back out, her parents, her sister, her sister’s boyfriend and the boyfriend’s friends were there.
52. They had dinner. There was nothing out of the ordinary.
53. In cross-examination, the complainant agreed that when she returned to the restaurant, she took the accused’s jumper from his car that he had been wearing that day whilst he was smoking. She put the jumper on and wore it that evening.^[52]

The accused’s evidence

54. The accused gave evidence that he drove through the winery to the tank and trough that needed to be filled. For a couple of weeks he had tried to unblock the trough so he had a garden hose up there to siphon directly from the tank. The location was about 450 m from the restaurant. The distance between the trough and the tank was somewhere between 40‑50 m.
55. He asked the complainant to get up onto the tank to hold the hose so that it would sit in the water properly and not come out whilst he siphoned the hose. He then reversed back up further to the raceway and parked his car opposite the gates to the paddock. He grabbed the hose and walked to the trough. He started the siphoning process and told the complainant that she could get down now. She returned to the car.
56. Whilst the water was running, he cleaned the trough and remained there as it was filling. It took about 35‑40 minutes from the moment he pulled up outside the tank to when he finished and returned to the fence with the hose. He then yanked on the hose to pull it out of the tank to stop the water flowing, then got back in the car. The complainant was in the passenger seat. She might have been on her phone. He then drove back to the restaurant.
57. He denied having any sexual contact with the complainant.
58. He gave evidence about their conversation on the way back. He said to the complainant, ‘today grape picking went well’. She said, ‘yes and [first name of restaurant owner] was in a good – better mood as well’. He said, ‘he’s been in a better mood since the court case’. The complainant said, ‘that was about sex stuff wasn’t it?’ and he said, ‘yeah but I think the woman just wanted money and she was a bitch’. The complainant said, ‘so anyone can say anything and get money for it’. The accused said, ‘yeah but that’s the wrong thing to do’. The accused gave evidence that he looked at the complainant and she smiled and said, ‘I wouldn’t do anything like that anyway’.^[53]
59. He gave evidence that when he looked at her it ‘just looked to be like a candid joke sort of or made to be that way’.^[54]
60. The accused gave evidence that he had never had a direct conversation with the complainant about the owner’s criminal charge; it was the first time she brought that up. It caused him some concern and he thought it was odd.^[55]
61. The accused gave evidence they returned to the restaurant at about 7.00 pm. The owner was the only person there. At some stage, the complainant got the accused’s jumper from the backseat of his car and put it on for the rest of the evening. The complainant’s father returned to the restaurant at about 9.00 pm with his daughter and others.

Evidence of complainant’s friend, Ms AB

62. Ms AB gave evidence that on 2 April, she was at home getting ready to go to work. She watched a video which had been sent from the complainant via Snapchat. The complainant was filming herself in the front passenger seat of a car, the window was down and she had a leg up. Someone approached the car. The complainant said ‘Hang on that’s my boss’ and put the phone down. Ms AB could see someone standing in the window, but not the person’s face. She could not hear what they were saying.
63. Ms AB was getting ready for work, she was not ‘avidly watching what she was talking about’.^[56] It was a pre-recorded video which Ms AB watched sometime before 5.00 pm. Ms AB was not viewing it as the events were unfolding. She did not watch the video immediately upon it being sent.
64. The complainant initially could not recall making any video and sending it to Ms AB when she was in the accused’s ute. She then denied doing so.^[57]

3 April 2021 - Initial complaint to Ms AB

65. The prosecution led evidence of an initial complaint made by the complainant to Ms AB. The evidence was admissible pursuant to s 34M of the Evidence Act 1929.
66. The complainant gave evidence that on 3 April, she was at a friend’s place down by the river. It was late at night. Everyone was asleep, but she could not sleep. She was sitting on a pontoon just off the riverbank. She was using her phone, trying to distract herself.
67. Her friend, Ms AB, came over and asked what was wrong. She had known Ms AB for about a year or so.
68. The complainant gave evidence that it was very hard to talk about what had happened. She started crying then told Ms AB that the accused sexually assaulted her and gave detail about what he did. She told Ms AB that the accused fingered her, that he made out with her and grabbed her on the breast.^[58]
69. Ms AB told her to report it to the police. She told Ms AB that she did not want to report it to the police. Ms AB wanted her to tell someone about it. Ms AB comforted her for probably half an hour to an hour before going to bed.
70. Ms AB gave evidence that she had been at school with the complainant in 2019 when they were both in year 8. They became close in year 10.
71. She gave evidence about the conversation with the complainant late at night when they were at a friend’s place by the river. She noticed the complainant was upset and had been crying. She asked the complainant what was wrong. The complainant said that when she was in the car with the accused last night he began to kiss her, then placed his hands down her pants and placed his fingers inside her vagina. She said he ‘fingered’ her.^[59]
72. In cross-examination, Ms AB gave evidence that the complainant never stopped crying but she also started laughing while crying.^[60]

4 April 2021 – Snapchat message from accused

73. Ms AB gave evidence that between 10.00 am and 2.00 pm on 4 April, she was sitting in the back of her friend’s father’s car on the way back from the friend’s place by the river. She was sitting next to the complainant who was on her phone. The complainant elbowed her and got her to look at her phone. She saw a message from the accused that had come up while they were in the car which said, ‘have you told anyone’. ^[61] The complainant responded that she had not told anyone.^[62]
74. The complainant did not give evidence about such an occasion but did give evidence that she told Ms AB that the accused asked if she had told anyone yet.^[63]

4 & 5 April 2021 – text messages between the complainant and accused

75. For 4 April, the following messages were on the complainant’s mobile phone (which were photographed by the police) and on the accused’s mobile phone (which was seized by the police):

    (i) At 4.29 pm, a text message from the accused’s phone to the complainant’s phone: ‘Hey miss, when Ur working next can I get u to bring the jumper u stole haha’.

(ii) From the complainant’s phone, ‘yea course, sorry aha’.^[64]

76. For 4 & 5 April, the following additional messages were on the accused’s mobile phone:

    (i) At 5.40 pm on 4 April, a text message sent from the complainant’s phone to the accused’s phone: ‘why did u unadd me on snap?’.

(ii) there was no reply from the accused’s phone.

(iii) At 6.19 pm on 5 April, a text message sent from the complainant’s phone to the accused’s phone, ‘do u not want to chat anymore?’.^[65]

(iv) there was no reply from the accused’s phone.

77. The complainant thought she recalled sending the first message at 5.40 pm when the accused unadded her. She could not recall sending the second message at 6.19 pm. She denied deleting those two messages from her phone.^[66]
78. The accused gave evidence that on the night of 3 April, he had a conversation with his wife about what the complainant had said in the car. He suggested to his wife that at no point should the owner or himself be left with the complainant. He told his wife that he had decided to remove the complainant from Snapchat and he did so.^[67] He had done that by 4 April, which is when the complainant sent him a text message asking him why he had un‑added her on Snapchat. He did not respond to her message. He did not respond to her text message on 5 April either.

At work after the incident

79. In cross-examination, the complainant gave evidence that she returned the accused’s jumper when she next worked by placing it on the shelves at the restaurant. She thought she probably worked on 10 April and returned it then. She agreed that the accused and the owner wanted to make a rocky road pizza that weekend. The accused offered to go to Foodland to get the ingredients. The accused asked her to go with him. She did not ask to go with him. She gave evidence that she went with him, ‘just to go with him’.^[68] Afterwards, she made the rocky road pizza with the accused and the owner.

Apology from accused

80. The complainant gave evidence that the accused apologised about a week or two after Good Friday when they were at work. He said he was sorry for what had happened and said it should not have occurred. She said, ‘no, it’s okay, there’s no need to apologise’.^[69]

14 April 2021 – text messages

81. The complainant gave evidence that after the accused apologised, she just tried to act like everything was okay. About two or three weeks later, the accused told her via text that he would not be working at the restaurant any more. She sent a message back that she thought he was nice.
82. For 14 April, the following texts were on the complainant’s phone and the accused’s phone:^[70]

    (i) From accused’s phone, ‘Hey [name of complainant], just letting you know we aren’t going to be running the restaurant anymore at this stage. [Name of owner of restaurant] is taking it back on so he may ask u to work’.

(ii) From complainant’s phone, ‘that’s very sad to hear, it is definite?’

(iii) From accused’s phone: ‘Pretty well. He is now asking more money than originally to buy so we have to let it go...thankyou so much u have been an amazing worker and friend to [name of accused’s partner] and I’.

(iv) From complainant’s phone, ‘why is he asking for more money?’ ‘and no need to thank me, I loved working for u guys’ ‘I’m going to miss u both’.

(v) From accused’s phone, ‘Wants Moreton spend I guess’.

(vi) From complainant’s phone: ‘that’s bs’.

(vii) From accused’s phone: ‘is what it is. Now he’ll lose it all.’

Discussion

83. The prosecution case rests upon the complainant’s evidence. The prosecution must prove beyond reasonable doubt that the acts which are the subject of the charges did in fact occur. The question is whether, on the whole of the evidence, and notwithstanding the defence evidence and argument, one or more of the charges has been proved to the standard of beyond reasonable doubt.^[71]
84. I have not placed any reliance upon the uncontested evidence that the accused touched the complainant at work. I accept the accused’s evidence that he had an innocent habit of moving people aside in that way so that he could move past. In accepting that evidence, I am not condoning or encouraging such a habit in work environments, especially where the employee is a teenager. It would have been wiser for the accused to be more careful in the workplace. However, I have not reasoned from that evidence toward the accused’s guilt of these charges in any way. The evidence is entirely neutral. I have put it aside.
85. The prosecution submitted that there were aspects of the complainant’s demeanour which point to her recounting something that actually happened, rather than invented.^[72] The defence submitted that demeanour and presentation must not be given undue weight in an assessment of honesty and reliability.^[73]
86. In assessing the evidence, I have not placed much weight on the demeanour of the witnesses. There was nothing of concern about the complainant’s demeanour or presentation which caused me to consider her evidence adversely. That observation does not carry significant weight in my assessment of her evidence or in the proof of the charges. It is an absence of a negative rather than a significant positive.
87. The defence submitted that the starting point must be a careful analysis of the inherent implausibility of the circumstances of the acts.^[74]
88. The defence submitted that the complainant’s account of getting out of the car to climb to the top of the tank to watch the sunset whilst the accused remained in the car made no sense. The accused’s account of needing her to assist by holding the hose on top of the tank so that he could fill the trough for the sheep is more plausible. She remained on the tank whilst he moved the car to get to the other end of the hose and fill the trough. ^[75]
89. There is no dispute that the accused and the complainant left the restaurant in his car and stopped first at the tank. Nor is there any dispute that the complainant got up on the tank whilst the accused remained in the car. Their evidence differed in respect of the reason why the complainant got up on the tank and how long she stayed there.
90. The complainant gave evidence that she got up on the tank to watch the sunset. She was on the tank for a minute or two, then got back into the car and the accused drove the short distance to the trough.^[76] He committed the offences shortly after he stopped the car at the trough.
91. The accused gave evidence that he asked the complainant ‘to get up onto the tank to hold the hose so that it would sit in the water properly and not come out whilst I had to syphon the hose’.^[77] He then drove to the trough. The complainant was not in the car when he parked at the trough, which is when she alleges that she was sexually assaulted. After he walked to the trough and proceeded to conduct the syphoning process, he said to the complainant ‘You can probably get down now’.^[78] She got back in the car. The accused returned to the car about 35‑40 minutes later, then drove back to the restaurant with the complainant.^[79]
92. I do not find the complainant’s evidence about climbing up on to the tank to be implausible. On her evidence, the accused stopped the car at the tank and asked her whether she was ticklish. After she said no, he said, ‘I bet I can make you squirm’ and she just laughed it off.^[80] On her version, I do not consider it is implausible that she might get out of the car and climb up onto the tank in those circumstances. I note, however, that the complainant did not give evidence of a conscious link in her mind between the conversation about tickling/squirming and her action of getting out of the car and climbing up on the tank for a few minutes.
93. Even if there was no link, I found the complainant’s denials of the accused’s version of events at the tank to be genuine. During cross-examination, she was adamant that the accused had not asked her to climb up on the tank and do anything with the hose. She gave evidence that she knew that the accused had to fix the trough, but said she had no idea why he needed to be by the tank to do that.^[81] The complainant was consistent when describing her belief that the accused had to fix the trough. At one stage in cross-examination, she was asked why the accused went to the trough.^[82] She answered, ‘To fix the trough’. The next question was ‘To fill the trough’. She responded ‘Fill the trough’ but, in my view, she never adopted that concept of filling the trough rather than fixing it. On her evidence, the accused had to fix the trough and she had no idea what he needed to do in that regard.
94. In my view, it is the accused’s evidence on this topic which lacks credibility. The accused gave evidence that on an earlier occasion he had cut down a 50 m garden hose to syphon diesel from a tractor. The distance from the tank to the trough (and therefore the remaining length of the garden hose used to fill the trough) was between 40 and 50 m.^[83] He gave evidence that the garden hose was in position from the last occasion, ‘it was syphoning directly from the tank into the trough’.^[84] He ‘had the hose going over the top of the tank into the tank into the water, it then went along the ground through the fence on both sides of the raceway and across to the trough’.^[85]
95. In cross-examination, the accused gave the following evidence about the hose on the afternoon/evening of 2 April:

Q. Where was the hose.

A. Over the top of the tank, like the top of the lid of the tank, the tank doesn't have a lid.

17. Is the hose already there or is it something you have to put in the tank, how does that work.
1. On this occasion she had to put it into the tank, it could have stayed there but it just laid alongside the tank.^[86]

96. On the accused’s evidence, however, it was not simply a matter of asking the complainant to put the hose into the tank with nothing more required from her. Rather, according to the accused, he needed the complainant to stay on the tank and hold on to the hose whilst he conducted the syphoning process; he told her to ‘get up onto the tank to hold the hose so that it would sit in the water properly and not come out whilst I had to syphon the hose’.^[87]
97. The accused gave no evidence about what his syphoning process involved. During cross-examination of the complainant, it was suggested that the accused ‘basically sucked on the other end of the hose in order to fill the trough’.^[88] The complainant denied that proposition and so the proposition is not evidence. In any event, it would be quite a feat for any person to have sufficient lung capacity to draw water through a 40–50 m hose from a tank in that way.
98. In the defence closing address, it was submitted that the accused’s account about what happened at the tank and trough was ‘far more plausible...because he had a method, a procedure in place, which required her assistance and it required her assistance initially to hold the hose below the water line so that he could then move to the other end of the hose and ultimately set about forcing the water to down flow and into the trough. That is why the vehicle was moved from the tank down to a position proximate and close to where the trough was’.^[89] The difficulty with that submission is that if the accused did in fact require such assistance (which was correctly identified by defence counsel as the effect of his evidence), then the accused’s evidence that he did not ask the complainant to accompany him does not fit.
99. The accused was clear in his position that it was not his idea that the complainant accompany him that evening. The complainant gave evidence‑in‑chief that the accused was the one who asked her to come for a drive so that he could pick up his motorbike.^[90] During cross-examination of the complainant, it was suggested to her that she was the one who offered to come for a drive. She denied that.^[91]
100. The accused gave evidence that he did not ask the complainant to come with him to pick up his motorbike. He did not mention his motorbike until after she got into his car: ‘She got into the vehicle and I remembered that I had my motorcycle in the vineyard and I asked her if she would mind driving my ute back from the vineyard if I rode my motorbike back’.^[92]
101. I consider that the accused has attempted to distance himself from the complainant by giving evidence that he did not ask her to come along that evening. In so doing, he has undermined the credibility of his evidence about what happened at the tank. I do not consider his account of what happened at the tank to be credible.
102. The defence submitted that the complainant made a prior inconsistent statement on a very important part of her narrative.^[93] She gave evidence that the tickling conversation occurred when they were parked at the tank but told the police that the tickling conversation occurred when they were parked near the trough. During cross-examination, the complainant admitted the inconsistency but maintained her evidence, explaining that her ‘head would have been mumbled with everything’ when she spoke to the police.^[94] I accept her explanation and do not consider the inconsistency has a significant impact upon her overall credibility or reliability. I accept her evidence that there was a tickling conversation in the car when they were parked at the tank. It is not of great moment that she told the police that it occurred when they were parked near the trough.
103. During cross-examination, the complainant was asked about sending a video via Snapchat to Ms AB when she was in the car at the trough. The complainant had given evidence‑in‑chief that after the sexual assault, the accused got out of the car to fix the trough and she ‘just went on my phone because I didn’t know what else to do’^[95]; she ‘just opened Snapchat’ and was looking at the notifications.^[96] When cross-examined about sending a video via Snapchat to Ms AB at that point, the complainant initially said ‘No’, then thought she was ‘quite sure about that’, then said ‘No, I don’t think so, not that I recall...I can’t recall any of this’^[97] and then denied sending any video footage to Ms AB at that time.^[98]
104. The defence submitted that the complainant’s denial is contradicted by the evidence of Ms AB.^[99] I do not agree.
105. Ms AB gave evidence that she watched a video communication from the complainant before 5.00 pm when she was at home getting ready for work.^[100] She started work at 5.00 pm, so she probably watched the video at maybe 4, 4.30 pm.^[101] However, the accused and the complainant did not leave to drive to the tank/trough until sometime after 5.42 pm (which is when the accused purchased items at the supermarket and before he returned to the restaurant then drove to the tank/trough). The video communication seen by Ms AB could not have been sent by the complainant whilst she was in the accused’s car after the alleged sexual assault. There was no suggestion in Ms AB’s evidence that she was mistaken about the time and might have watched it later when she was at work.
106. Ms AB’s description of what the complainant said in the communication was consistent with the video having been made and sent by the complainant earlier in the day. Ms AB gave evidence that the complainant was ‘talking about how hot it was, that they were picking fruit and because we were meeting up the next day...we were just discussing plans on where she was going to meet me, what time’.^[102] Ms AB gave evidence that they communicated in that way with each other on 2 April:
     17. On that day before when she said it happened, had you spoken to [the complainant] at all on that day.

A. Briefly.

Q. How did you speak to her.

A. Over Snapchat.

Q. How do you communicate with [the complainant] on Snapchat.

A. Filming ourselves talking and sending that to the other one.^[103]

107. The complainant was not asked whether she sent any video communications to Ms AB at any other times on 2 April but did give evidence that she liked to use Snapchat to video communications to friends.^[104]
108. I do not consider that Ms AB’s evidence about receiving the video communication contradicts the complainant’s evidence that she did not send a video communication to Ms AB whilst sitting in the accused’s car after the alleged sexual assault.
109. The defence submitted that the complainant’s evidence about the mechanics of the alleged digital penetration is inherently implausible, particularly when considering their respective positions in the car and the various obstructions.^[105] The complainant was cross-examined about her skin-tight stretch type bike pants, the gear stick and paraphernalia between the front two seats in the car, her hands being on the centre console and the accused reaching over from the driver’s seat and putting his left hand up the left leg of her shorts.^[106]
110. The prosecution submitted that the complainant’s description of the accused’s left hand up the left leg of her shorts might sound slightly awkward but pointed out that the incident occurred in a car. Engaging in sexual acts in a car may simply just be awkward. That does not mean what the complainant described is impossible or untrue.^[107] I agree with the prosecutor’s submission.
111. The complainant made a complaint to Ms AB on 3 April 2021. There may be varied reasons why an alleged victim of a sexual offence makes a complaint at a particular time to a particular person. The complainant complained to Ms AB the next night at a time when she was unable to get to sleep, was trying to clear her head and was asked by Ms AB what was wrong.^[108] The evidence of the conversation is admissible to explain how the allegations first came to light and as evidence of the degree of the complainant’s consistency of conduct. It is admissible in relation to all three counts. It is not admissible as evidence of the truth of what was said by the complainant and I have not used it in that way.
112. I agree with the prosecution submission that the complaint shows consistency of conduct on the part of the complainant.
113. On the complainant’s evidence, her complaint to Ms AB was consistent with what she alleges occurred. She told Ms AB about being kissed by the accused, having her breast grabbed and being ‘fingered’. Ms AB did not give evidence about being told by the complainant that the accused grabbed her breast. I agree with the prosecution submission that it is understandable that Ms AB did not give evidence that the complainant told her that the accused grabbed her breast because the focus was upon the allegation of ‘fingering’.^[109]
114. I do not consider that Ms AB’s evidence that the complainant said that the accused placed his hands down her pants is evidence of an inconsistent statement made by the complainant. It may be that was an assumption made by Ms AB about what happened, rather than what the complainant said. There is no evidence that the complainant went into the precise mechanics of how the accused came to be ‘fingering’ her, including whether she told Ms AB that he put his hand up or down her bike shorts.
115. The complainant gave evidence that the accused sent her a message on Snapchat later that night on 2 April or early in the morning on 3 April asking her if she had told anyone.^[110] Ms AB gave evidence that she saw a Snapchat message from the accused (saying ‘have you told anyone’) on the complainant’s phone on 4 April.
116. The defence submitted that Ms AB’s evidence should be rejected because as at 4 April, there was no Snapchat connection between the complainant and the accused.^[111] I do not agree that there was necessarily no Snapchat connection between the complainant and the accused at that time.
117. There is no dispute that the accused had un‑added the complainant on Snapchat sometime before 5.40 pm on 4 April, which is when the complainant sent him a text message asking him why he had un‑added her.
118. The complainant gave evidence that the accused un‑added her on Snapchat before the offending.^[112] In my view, she is mistaken about that.
119. The accused gave evidence that he un‑added the complainant after the offending, however, I do not accept the accused’s evidence that he did that on 3 April.^[113] The complainant gave evidence that a person will get a notification on Snapchat if someone has un‑added them.^[114] If the accused’s evidence is correct, then the complainant would have received the notification on 3 April and not sent her text message asking him why he had unadded her until late on 4 April. Given the complainant’s general use of Snapchat, I think it unlikely that she would delay so long to send a text message asking why he had un-added her.
120. Although I consider that there was probably a Snapchat connection between the complainant and the accused up until a time close to 5.40 pm on 4 April, I have not relied upon Ms AB’s evidence that she saw the accused’s Snapchat message on the complainant’s phone on 4 April.
121. The complainant gave evidence that she did not show the message to Ms AB but did tell her about it. The complainant gave evidence that when she got the message from the accused, she did not screenshot it because the sender gets a notification if you screenshot or save something.^[115] Implicit in the complainant’s evidence was that she did not want the accused to know at that time that she had taken a record of his message. That was consistent with her general evidence about her response to what happened on 2 April, namely, that by pretending everything was normal, then, for her, it was like it had never happened.
122. I accept the complainant’s evidence that the accused sent her a Snapchat message either later that night on 2 April or early the next morning asking if she had told anyone yet.^[116] In accepting that evidence, I have not placed any reliance upon the complainant’s evidence that she told Ms AB about the text message. I have not used that evidence as proof of the truth of what was said, as a prior consistent statement to buttress the complainant’s credit regarding her receipt of such a message or for any other purpose.
123. The accused gave evidence about a conversation he had with the complainant on the drive back to the restaurant from the trough on 2 April. I reject his evidence about that conversation and do not consider any such conversation occurred. I found the accused’s account of the conversation to be unbelievable, including the timing of it, the terms of it and his description of the complainant smiling at the end of the conversation.
124. It was submitted that the accused was not suggesting that the complainant had a motive to lie, including any motive for compensation.^[117] It was submitted on that the accused’s evidence about that conversation was simply part of his narrative of events. It alarmed him so much that he spoke to his wife about it and then un-added the complainant on Snapchat.
125. I do not consider that the accused was simply narrating events. Rather, I consider that he has attempted to indirectly raise a motive in a way that is convenient to him, in other words, to suggest that he has no choice but to raise it because it was simply part of his narrative of events. Of course, the accused does not have to raise or prove a motive to lie on the part of a complainant. The prosecution must prove that the complainant is telling the truth.
126. I agree with the prosecution submission that the accused’s evidence about this conversation was scripted and rehearsed.^[118]
127. I also found the accused’s evidence about his apparent alarm regarding this conversation to be contradicted by the evidence that he drove alone with the complainant to the supermarket the next weekend.
128. On the accused’s evidence, the conversation with the complainant on 2 April alarmed him to such a degree that he told his wife about it to protect himself and the restaurant owner. He gave evidence that he told his wife ‘that at no point [the restaurant owner] or myself, you know, should be left with [the complainant] and...I said “I’ve made a decision to remove her from Snapchat’’’.^[119]
129. However, the next weekend, the accused drove to the supermarket alone with the complainant. It was suggested to the complainant during cross‑examination that on the weekend following the alleged sexual assault, she willingly travelled alone with the accused in his car to the supermarket:
     17. All right. On 10 April, which is the following weekend you were again alone with him, weren't you.

A. I don't recall but probably.

Q. Well on the Saturday, the following Saturday, 10 April, you worked didn't you.

A. I could have, probably.

17. See if this helps, was it the case that [name of accused] and [name of restaurant owner], wanted to - they were interested in trying a dessert pizza -

A. Yep.

Q. - and they wanted to make a rocky road pizza.

A. Yep.

Q. And so they needed marshmallows and raspberry lollies to complete the pizza.

A. Yep.

17. And it's the case isn't it that [name of accused] offered to go to the Birdwood Foodland to obtain the ingredients that were needed for that pizza.

A. Yep.

Q. And you asked if you could come with him.

A. He asked if I could go with him.

Q. Well you say he asked, we say you asked. Did you say yes.

A. Yep.

Q. And why did you go with him on that occasion.

A. Just to go with him.

Q. All right, anyway you both went to the Birdwood Foodland together.

A. Yep.

17. And whilst you were travelling you mentioned to him that a couple of people that went to school with you worked at that store.

A. Yep.

Q. You remember that happening.

A. I reckon, yeah.

Q. And you then returned with the - and made the rocky road pizza.

A. Yep.^[120]

130. The accused did not give evidence about that occasion. As set out above, the complainant generally agreed with what was put to her in cross‑examination, the only disagreement being her evidence that it was the accused who asked her to accompany him to the supermarket.
131. The prosecution submitted that despite the accused being so concerned about the conversation on 2 April that he needed to speak to his wife, he went to the shops alone in the car with the complainant on the following weekend.^[121] I agree with the prosecution submission that the evidence that the accused travelled alone in the car with the complainant the following weekend does not sit well with the accused’s evidence about the apparently concerning conversation on 2 April.
132. The accused gave evidence during cross‑examination that he believed his wife did speak to the complainant on the weekend following his conversation with his wife, but he did not know the exact day that occurred.^[122] The possibility that such a conversation might have alleviated his concern and led him to drive alone with the complainant to the supermarket on the following weekend is not open on the evidence. The accused gave evidence that his concerns about the conversation on 2 April were not alleviated until he became aware that he would not be working with the complainant any longer. He sent the complainant the text on 14 April advising her that they were not going to be managing the restaurant anymore and that is why he accepted her friend request on Snapchat on 14 April. He gave the following evidence:
     17. What changed between your concerns when you deleted [name of complainant] on 3 April, to then when you've accepted her on 14 April.

A. I would no longer, we would no longer be working together.

17. So why did you need to Snapchat her if the only reason you Snapchatted was because of work.
1. My release of Snapchat and my concern for her was about being at work, I wouldn't be in an environment working with her any more. So I wouldn't - that's why I readded her, we were just friend.

Q. But your evidence earlier was you needed to talk on Snapchat because of work.

A. We didn't need, to we did.

17. You did; and you no longer worked together and then you've accepted, or you have allegedly accepted this Snapchat friendship.

A. Yes.^[123]

133. I also consider his evidence that he contemplated an ongoing friendship with the complainant from 14 April to be out of step with his evidence about such an apparently concerning conversation on 2 April.
134. I consider that the complainant was genuinely perplexed during cross‑examination when it was suggested that she had that conversation with the accused on 2 April in the car on the way back to the restaurant.^[124] She agreed that she knew the restaurant owner’s court case was about ‘sex stuff’ and ‘very vaguely remembered’ that the accused said to her ‘that it was all bullshit and the woman just wanted money’.^[125] She denied saying to the accused ‘so anyone could make anything up and get money’. She denied the accused said, ‘you could but that’s the wrong thing to do’. She denied then saying, ‘I wouldn’t do anything like that anyway’. She remembered having a conversation about the court case but gave evidence that it was not on 2 April and she would never had said those things which were put to her in cross-examination.^[126]
135. I am of the view that the accused has made up that conversation. I have not reasoned from that finding that he has done so out of a consciousness of guilt. I have not used that evidence as evidence of his guilt. I have not reasoned that it follows that he might, may or must be guilty of these charges. My finding that he has concocted this evidence about the conversation, however, does have an adverse impact upon my overall assessment of his credibility.
136. The accused gave evidence that it was because of what the complainant said during that conversation that he spoke to his wife and un-added the complainant on Snapchat. I do not consider that was a truthful explanation for why he un‑added the complainant on Snapchat. There was no dispute that he did un‑add the complainant after 2 April because the complainant sent him a text at 5.40 pm on 4 April saying, ‘why did u unadd me on snap?’. I find it curious that he did not reply to that text even though he had sent her a text at 4.29 pm in the following terms: ‘Hey miss, when Ur working next can I get u to bring the jumper u stole haha’.
137. The two text messages from the complainant to the accused asking him why he had un‑added her on Snapchat were not on the complainant’s phone which she provided to the police. It was suggested to her in cross-examination that she had deliberately deleted the messages because they did not support her allegation of a sexual assault.^[127] She gave evidence that she remembered sending the first message but did not remember sending the second one. She gave evidence that she would not have messaged the accused twice in a row, but would have waited for a reply. She denied deleting messages.^[128]
138. I do not consider the complainant deliberately deleted text messages from her mobile phone prior to producing that phone to the police. If she had been of the mind to delete messages that did not suit her allegation, then there were other messages on the phone which she could have deleted but did not. For example, there was an exchange on 14 April where she said ‘I loved working for u guys’ and ‘I’m going to miss you both’ which were on her phone. I agree with the prosecution submission on this point.^[129]
139. There were also text messages missing from the accused’s mobile phone. The accused gave evidence that he could not recall deleting the messages and denied deleting them when he became aware that the police would be attending at his home.^[130] The prosecution submitted that it made more sense for the accused to have deliberately deleted the messages because the deleted messages do not reflect well on his relationship with the complainant. He had notice that the police were going to be attending his home and therefore had the opportunity to delete the messages. The prosecution submitted that his deletion of the messages is circumstantial evidence in support of him having an inappropriate relationship with the complainant.^[131] The prosecution did not rely upon the evidence of missing messages as indicative of a consciousness of guilt on the part of the accused.^[132]
140. I am not prepared to find that the accused deliberately deleted text messages because they did not reflect well on his relationship with the complainant. There is no expert evidence on the topic of whether an examination of the phone could reveal the timing of any of the deletions. In my view, messages may be deleted by a user at any time for any number of reasons. I have not used the evidence that messages were deleted when considering whether the prosecution has proved the case against the accused. Nor have I used the evidence that there were text messages absent from the phones of the complainant and the accused to reason in an adverse way when assessing their credibility.
141. The defence submitted that the two messages sent by the complainant to the accused on 4 and 5 April (which were also absent from her phone), ‘at the very least...raises considerable concern about the likelihood of her communicating in that way if she had been sexually assaulted...in the way she described. That is not consistent with somebody who has been sexually abused in the way she alleges.’^[133] That led to a further submission by the defence that the complainant’s ‘whole conduct’ after the alleged sexual assault ‘is what might be seen as being completely inconsistent with somebody who is sexually abused’.^[134]
142. The conduct included the complainant wearing the accused’s jumper during the evening of 2 April. It was also submitted that the complainant’s evidence about going to the toilets, washing the cigarette taste from her mouth and then her family having arrived could not be correct. Based on the text messages between the accused and his wife, the complainant’s family did not return to the restaurant until after 8.46 pm.^[135] I consider that the complainant is probably incorrect about the timing of her family’s arrival, but I do not consider anything significant turns on that when assessing her credibility and reliability.
143. It was submitted on behalf of the accused that, if the complainant had been sexually assaulted as she described, it would be unlikely that the complainant would want to wear the accused’s jumper which might smell of cigarettes.^[136] The complainant gave evidence in cross‑examination that the accused gave her his jumper that night, which she returned later.^[137] She explained in re‑examination that it was cold, she did not have any other clothes and her parents were not answering so she asked to borrow his jumper.^[138]
144. I do not consider that the complainant’s conduct (including wearing the accused’s jumper, sending the texts on 4 and 5 April, accompanying the accused to the supermarket the following weekend and sending the texts on 14 April) is inconsistent with her allegation of sexual assault. She gave evidence about how she reacted to the sexual assault:
     • once she was back at the restaurant, she ‘just acted like everything was fine’.^[139]
     • when she told Ms AB what had happened, Ms AB wanted her to tell someone about it, but the complainant ‘just wanted to keep it to myself and pretend like it didn’t happen’.^[140]
     • when they were back at work, the accused apologised, said he was sorry and that it should not have occurred and then she ‘was like ‘No, it’s okay, there’s no need to apologise’, just trying to forget about everything’.^[141] She gave evidence she said that to him: ‘Cos I didn’t want it to be consuming everything that I thought about because I knew if it did it would really hurt so I just put to the back of my mind and tried not to think about it.^[142]
     • she went back to work and acted ‘Just like I did before, nothing unusual. I just tried acting like everything was okay’.^[143]
     • she messaged the accused after the sexual assault because: ‘I just didn’t want to think about what had happened, I wanted to put it to the back of my mind and I thought by not thinking about and not acting on it and just pretending everything is normal, that it will be like nothing ever happened.’^[144]
145. I accept the complainant’s evidence about how she responded to the alleged sexual assault. I do not consider any of her conduct, viewed individually or in combination, to be inconsistent with her allegation.
146. I accept the complainant’s evidence that she and the accused talked ‘not every night but quite often’ on Snapchat.^[145] It was supported to some extent by the evidence of the complainant’s sister and Ms AB. The complainant’s sister observed several Snapchat notifications from the accused on the complainant’s lock screen prior to 2 April. She did not see the content of the messages but ‘I knew it was quite incessant, as in it would be, you know, most days’.^[146] Ms AB also gave evidence that she saw messages from the accused pop up on the complainant’s phone ‘quite often’.^[147]
147. I do not consider the accused was being truthful about the extent of his use of Snapchat with the complainant.
148. The accused gave evidence that he communicated with the complainant for work purposes predominantly via text message. When asked why he needed Snapchat as well as text messages, he said during evidence‑in‑chief, ‘Because we were friends as well as colleagues’.^[148] He repeated during cross‑examination that ‘she was also a friend’^[149]; ‘we were friends with the family so it was a friendship’.^[150] However, he then seemed to disavow the concept of messaging the complainant on Snapchat as friends, giving evidence that he communicated with the complainant on Snapchat ‘predominantly for work purposes’. He gave evidence that conversations with the complainant on Snapchat were ‘mostly work orientated, shift work orientated’.^[151] He gave evidence that he found she was more responsive on Snapchat than via text message. ^[152] I do not consider that the text messages produced during the trial support a lack of responsiveness on the part of the complainant. I am unable to see any instances when the complainant has not responded to texts from the accused.
149. The accused gave evidence that contacting staff about shifts ‘was a mutual task’ with his wife.^[153] However, the complainant’s sister gave evidence that the accused never sent her any social media or other communication about her shifts.^[154] The accused’s wife would generally communicate verbally with her about shifts. If something came up, then the accused’s wife would text her.^[155]
150. The complainant’s sister gave evidence that she observed the relationship between the complainant and the accused, describing it as ‘playful’.^[156] That is also how I would describe the text messages in exhibit P1.
151. In my view, the accused used Snapchat to connect with the complainant in a way that was beyond that of a boss/employee relationship. Whilst he gave evidence that the complainant was also a friend, he was not forthcoming about what that meant from his point of view.
152. I accept the complainant’s evidence about the Snapchat conversation she had with the accused about rewards he was offering for the grape picking. In my view, it was an escalation of the playful relationship which he was developing with the complainant. I consider that he was testing the waters, seeing how she might react. She reacted to that escalation in a playful way.
153. I also accept the complainant’s evidence that the accused smacked her on the bottom at work on the occasion that she described. I consider that the accused was testing the physical boundaries. I am not prepared to find that there were any other occasions when smacking occurred because there was no evidence about the circumstances of other occasions.
154. That conduct also gives context to the alleged sexual assault on 2 April in the sense that the sexual assault did not come out of the blue. It occurred in the context of the prior playful messaging, the smack on the bottom and the sexualised ‘rewards’ messaging. The complainant responded playfully to that prior conduct and did not tell anyone. The accused would have had some confidence about further escalating his conduct.
155. I have used the evidence of discreditable conduct for the limited purposes identified. I have not used the evidence to suggest that the accused is more likely to have committed the offence/s because he has engaged in that discreditable conduct.
156. For the reasons set out above, I consider that the complainant’s evidence was credible and generally reliable. There were aspects of the accused’s evidence which were not credible. On the whole of the evidence, and notwithstanding the defence evidence and argument, I find that the prosecution case has been proved beyond reasonable doubt. I have considered each charge separately. I find the accused guilty of counts 1, 2 and 3.

Verdict

157. The accused is guilty of counts 1, 2 and 3.

^[1] Section 49(3) of the Criminal Law Consolidation Act, 1935 (CLCA).

^[2] Section 56(1) of the CLCA.

^[3] Section 56(1) of the CLCA.

^[4] T19; Exhibit P1 – Photographs of text messages between the complainant and the accused.

^[5] T22.

^[6] T103 – 104.

^[7] T104.

^[8] T152.

^[9] T22.

^[10] T22-23.

^[11] T153.

^[12] T41, T128, line 29.

^[13] Comparing Exhibit P1 and P7; T128 – 129.

^[14] T170.

^[15] T20.

^[16] T60.

^[17] T21.

^[18] T21.

^[19] T150.

^[20] T150 – 151.

^[21] T148.

^[22] T21.

^[23] T37.

^[24] T189.

^[25] T61.

^[26] T36.

^[27] T37.

^[28] T37; Exhibit P4.

^[29] Johnson v R  [2018] HCA 48 ; (2018) 266 CLR 106 at  [19] ; Roach v R [2011] HCA 12; (2011) 242 CLR 610 at [42]

^[30] Section 34P(1).

^[31] T24, T43

^[32] T154.

^[33] T32.

^[34] T44, T155.

^[35] T108; Exhibit D5; Exhibit P6.

^[36] T156.

^[37] T24.

^[38] T49.

^[39] T106.

^[40] T157.

^[41] Exhibit D10.

^[42] T32.

^[43] T24.

^[44] T158.

^[45] T158 – 159.

^[46] T51.

^[47] T25.

^[48] T26.

^[49] T27.

^[50] T26.

^[51] T29.

^[52] T71 – 72.

^[53] T164.

^[54] T164.

^[55] T164.

^[56] T92.

^[57] T63 - 64, 67.

^[58] T34.

^[59] T77 – 79.

^[60] T90.

^[61] T95 – 96.

^[62] T89.

^[63] T68 - 69.

^[64] Exhibit P1, page C10.

^[65] Exhibit P7.

^[66] T64 – 66.

^[67] T165.

^[68] T73.

^[69] T34.

^[70] Exhibit P1; Exhibit P7, lines 44 – 52.

^[71] R v Schulz (2016) 126 SASR 476 at [35] per Vanstone J; R v Ahmadi & Ors (2018) 131 SASR 64 at [75].

^[72] T192.

^[73] T210.

^[74] T210.

^[75] T212 – 213, 218.

^[76] T55.

^[77] T161.

^[78] T162.

^[79] T162.

^[80] T25, 56.

^[81] T25, 27, 52 - 54.

^[82] T53.

^[83] T160.

^[84] T160, 173.

^[85] T161.

^[86] T172.

^[87] T161.

^[88] T53.

^[89] T213.

^[90] T24.

^[91] T51.

^[92] T159.

^[93] T210 – 211.

^[94] T57.

^[95] T28.

^[96] T28.

^[97] T63.

^[98] T64, 67, 70.

^[99] T213.

^[100] T92.

^[101] T97.

^[102] T92.

^[103] T79.

^[104] T64.

^[105] T211.

^[106] T46, 57 ‑ 59

^[107] T194 ‑ 195.

^[108] T32.

^[109] T203.

^[110] T69.

^[111] T218.

^[112] T36.

^[113] T165 – 166.

^[114] T36.

^[115] T68.

^[116] T68.

^[117] T214 – 215.

^[118] T206.

^[119] T165.

^[120] T73 – 74.

^[121] T207.

^[122] T187.

^[123] T187 – 188.

^[124] T61 – 62.

^[125] T61.

^[126] T61 – 62.

^[127] T65.

^[128] T64 – 65.

^[129] T200 – 201.

^[130] T170, 182 – 183.

^[131] T201.

^[132] T220 – 221.

^[133] T216.

^[134] T216.

^[135] T216.

^[136] T217.

^[137] T73 – 74.

^[138] T75.

^[139] T29.

^[140] T33.

^[141] T34.

^[142] T34.

^[143] T35.

^[144] T41.

^[145] T21.

^[146] T112.

^[147] T89.

^[148] T150.

^[149] T176.

^[150] T176.

^[151] T177.

^[152] T150 – 151.

^[153] T148, 178.

^[154] T111.

^[155] T114.

^[156] T111.