Director of Public Prosecutions v Alexander (a Pseudonym)
[2016] VSCA 92
•6 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0018
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| BOBBY ALEXANDER (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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| JUDGES: | WEINBERG AP, COGHLAN and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 April 2016 |
| DATE OF JUDGMENT: | 6 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 92 |
| JUDGMENT APPEALED FROM: | DPP v [Alexander] (Unreported, County Court of Victoria, Judge Stuart, 21 January 2016) |
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CRIMINAL LAW – Interlocutory Appeal – Charges in relation to multiple sex offences against six separate complainants on same indictment – Coincidence evidence – Trial judge ruled evidence not cross-admissible and ordered six separate trials – Basis of ruling identifiable dissimilarities – Appeal by Crown –Analysis of offending against each complainant unduly detailed – Basic underlying unity for allegations in relation to three complainants – Features of alleged offending significant and distinctive – Charges in relation to three complainants cross-admissible – Trials in relation to same three complainants capable of being heard together – Appeal allowed in part.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Dr N Rogers SC with Mr A McKenry | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr M Sharpley | Robert Davies, Barrister & Solicitor |
WEINBERG AP:
I agree with Coghlan JA.
COGHLAN JA:
The Director of Public Prosecutions (‘Director’) filed an indictment in the County Court at Melbourne charging the respondent with a total of 18 sexual offences. The charges involved six boys (hereafter designated ‘TK’, ‘ME’, ‘RF’, ‘PC’, ‘AA’ and ‘SP’) all of whom were, or had at one time been, residents at a suburban boys home (‘the Home’). The offences were said to have been committed between September 1972 and November 1980.
The respondent was at all material times involved in or had been involved in the supervision of the boys at the Home. He stayed overnight at the Home.
The Director gave notice pursuant to s 97 of the Evidence Act 2008 (‘the Act’) that the Crown would seek to rely upon tendency reasoning (evidence of the character, reputation or conduct of the respondent to prove that he had a tendency to act in a particular way or to have a particular state of mind). Accordingly, the Crown was obliged to satisfy the Court that the evidence sought to be led would have ‘significant probative value’ and, ultimately, pursuant to s 101 of the Act, that the probative value of that evidence would substantially outweigh any prejudicial effect that it might have upon the accused.
The s 97 notice was, in part, in the following terms:
4.The tendency sought to be proved is the tendency of [BOBBY ALEXANDER] to act in a particular way, namely;
(i)engaging in sexual activities with six boys who were current or former residents of [the Home]
(ii) doing so by commencing with inappropriate touching (cuddling, caressing) at the instigation of the accused.
In circumstances where:
(i) all events took place while the complainants were in the accused’s care while at [the Home] or at other places the boys were taken to by the accused
(ii) all boys were pre-pubescent or pubescent
(iii) the sexual acts often occurred at night while the boy was in bed either asleep or semi-asleep ([TK], [ME], [PC], [RF] and [SP]).
The specific acts of sexual offending upon which the Crown relied for tendency reasoning, and the detailed particulars associated with those acts, were set out in the notice. They are attached as Schedule A to these reasons for judgment.
The Director also gave notice pursuant to s 98 of the Act that the Crown would seek to rely upon coincidence reasoning; namely, that it would lead evidence that all six boys had been subjected to sexual predation on the basis that there were such similarities in the events described, or the circumstances in which the offending was said to have occurred, as to render it improbable that these events occurred coincidentally.
The s 98 notice was, in part, in the following terms:
4. The coincidence evidence will be adduced to prove that [BOBBY ALEXANDER] did particular acts that made it improbable that six complainants would independently concoct allegations of a similar nature, including;
(i) engaging in sexual activities with six boys who were current or former residents of [the Home]
(ii) doing so by commencing with inappropriate touching (cuddling, caressing) at the instigation of the accused
In circumstances where:
(i) all events took place while the complainants were in the accused’s care while at [the Home] or at other places the boys were taken to by the accused
(ii) all boys were pre-pubescent or pubescent
(iii) the sexual acts often occurred at night while the boy was in bed either asleep or semi-asleep ([TK], [ME], [PC], [RF] and [SP]).
The s 98 notice relied upon the same particulars as the tendency notice.
Although there were two separate notices given, the Crown relied primarily upon coincidence reasoning in support of its submission that there be a single trial involving evidence from all six complainants.
It was common ground below, and also common ground before this Court, that there was no evidence of any concoction, collusion or collaboration among the six complainants. The issue that the trial judge had to resolve was whether their evidence was sufficiently probative, either as tendency or coincidence, to enable it to be said that each complainant’s account was cross-admissible when considering the evidence given by every other complainant.
The respondent sought severance of the indictment, arguing that there ought to be six separate trials, one relating to the allegations of sexual offending against each complainant.
The Crown opposed severance on the basis that there was complete cross-admissibility. However, the Crown accepted that in the event any particular complainant’s account that fell short of the requirements for cross-admissibility, severance would be warranted in respect of that complainant.
The trial judge, in a careful ruling, concluded that cross-admissibility was not made out in relation to any of the six complainants.[2] Accordingly, his Honour ruled that there should be six separate trials.
[2]DPP v [Alexander] (Unreported, County Court of Victoria, Judge Stuart, 21 January 2016) (‘Ruling’).
The Director, pursuant to s 295 of the Criminal Procedure Act 2009, has sought leave to appeal against that interlocutory decision.
The Director’s proposed grounds of appeal are as follows:
1. The decision to order that the coincidence evidence of the six complainants on the indictment was inadmissible miscarried because the trial judge, despite finding ‘a certain pattern of sexual behaviour engaged in by the accused’, found that differences in the sexual acts was sufficient to oust similarities between the accounts of the six complainants independently coming forward and where there is/was no reasonable possibility of innocent infection / contamination / collusion between those complainants.
In the alternative to ground 1:
2. The decision to order that the coincidence evidence of four complainants ([TK], [ME], [SP] and [AA]) on the indictment was inadmissible miscarried because the trial judge made the order in the face of the primacy of the accused taking away these complainants in his vehicle on a trip to a location of his own choosing, those complainants being in his care and who were either residents at or had been a resident at the [the Home] where the accused worked as a carer.
3. The decision to order that the tendency evidence of the six complainants on the indictment was inadmissible miscarried because the trial judge failed to consider that such tendency evidence needs to exhibit a lesser degree of similarity than for coincidence reasoning.
4.If the coincidence and/or tendency evidence is in fact admissible (and the prosecution contends that it is), the discretion to sever miscarried.
The trial judge’s ruling
The trial judge began his ruling by noting that it was accepted that there was no real possibility of contamination, concoction, collusion or unconscious influence such that the probative value of the evidence of any complainant would in any way be affected. He then observed that the focus of argument on the question of severance had been the coincidence notice, rather than the tendency notice.
His Honour cited various decisions of this Court on the subject of coincidence reasoning.[3] He noted that it was not necessary for the Crown to demonstrate a ‘striking similarity’ between the events described by each complainant in order to render the evidence cross-admissible. In the absence of unusual features concerning the nature of the offending or the circumstances surrounding the offending, it would, however, be necessary to identify a sufficient ‘underlying unity’ between the events constituting the offending against each complainant.
[3]The judge referred to CGL v DPP (2010) 24 VR 486; Murdoch (a pseudonym) v The Queen (2013) 40 VR 451; Harris (a pseudonym) v The Queen [2015] VSCA 112; PNJ v DPP (2010) 27 VR 134; Page (a pseudonym) v The Queen [2015] VSCA 357; and, importantly, Velkoski v The Queen (2014) 45 VR 680.
The trial judge next observed that the existence of dissimilarities in the circumstances or nature of the sexual acts alleged against each of a number of complainants did not necessarily preclude the evidence from constituting coincidence evidence. The question to be determined was whether those ‘dissimilarities’ were such as to undermine or diminish the underlying unity of the separate acts, and the circumstances in which they occurred.
Having set out the principles governing cross-admissibility in relation to coincidence reasoning, the trial judge noted that the Crown placed considerable emphasis upon the sheer number of complainants who had independently come forward and complained of sexual abuse by the respondent. While it was true that greater number of such witnesses the less need there would be for their evidence to be ‘distinctive’ (still less ‘strikingly similar’), it was nonetheless a pre-requisite to the use of coincidence reasoning that there be such similarities between the accounts given by them that it was improbable that the events described occurred coincidentally.
In summarising the Crown’s position, the trial judge noted that the case against severance turned upon what was said to be the remarkable coincidence that no fewer than six complainants should, independently, come forward and make allegations of sexual abuse against the respondent. The similarities upon which the Crown relied were summarised by his Honour as follows:
a) Dates – occurred between 1972 and 1980 on the 6 complainants. Sufficient temporal connection.
b) Age of complainant – all were of a similar age (pre-pubescent or pubescent).
c) Lived at or had lived at [the Home – all had a connection to [the Home]. All either resided there or had resided there.
d) Accused in a position of care and/or authority over the complainant –common to all. The Accused used his position as a carer and officer at the [the Home] to obtain close access to the complainants ([TK], [ME], [RF], [PC], [AA]) or in the case of [SP], used that past position to enable close access to [SP].
e) Location of sexual conduct – occurred within the control of the Accused. [TK] (sole charge), [ME] (all charges) , [PC] (charge 11), [SP] (sole charge) and [AA] (all charges) occurred at locations chosen by the Accused, and the complainant was driven there by the Accused in either his panel van or pop-up campervan. In respect of [RF], the location was also squarely within the control of the Accused; he had his own flat and the complainant boys were in dormitories or cottages. He chose to go and sit on [RF]’s bed and fondle [RF]’s penis (charge 5); he chose to go and pick up [RF] from his bed and return with [RF] to his flat and then fondle [RF]’s penis (charge 6).
f) Accused requested complainant to go away with him – common to all complainants except [RF].
g) Accused drove complainant to destination in his own vehicle – common to all complainants except [RF].
h) Complainant asleep or half asleep – common to complainants [TK], [ME], [RF] and [PC].
i) Offending in Accused’s bed/bedroom/van – common to all complainants and for all charges except charges (3) and (5) regarding [RF].
j) Accused sharing bed with complainant – common to all complainants apart from [RF].
k) Offending in complainant’s bed – common to all complainants except [RF] and certain charges for [PC] and [AA].
l) Accused initiates sexual contact – common to all complainants.
m) The complainants were either semi-dressed ([TK], [ME], [RF], [PC], [SP]) or undressed ([AA]).
n) Preparatory inappropriate touching common to all complainants
o) Anal penetration by accused of complainant – common to [TK] (sole charge), [PC] (charge 10) and [AA] (charges 14 and 16).
p) Fondling of complainant’s penis by Accused common to [ME] (sole charge), [RF] (charges 5 and 6), [SP] (sole charge) and [AA] (charges 14-15, 17).[4]
[4]Ruling [23].
The trial judge said that he was satisfied that there was a ‘certain pattern’ of sexual behaviour engaged in by the respondent.[5] However, there were aspects to the offending which, in his Honour’s opinion, demonstrated significant differences, so much so that they did not support the existence of the requisite underlying pattern or unity of conduct.
[5]Ruling [26].
The trial judge turned to those differences, which in his view fell into seven categories. He summarised them as follows:
First, only three of the six complainants make complaint of anal penetration. The other three do not.
Secondly, of the three who do make complaint the circumstances of the anal penetrations vary widely.
(a) In relation to [TK], Charge 1, his evidence is the Accused took him to stay at the Accused’s parents’ house in Silvan. They swam in the dam at the property and consumed alcohol. That night the two shared a single bed to sleep. [TK] was lying on his side and the accused was behind him. The accused pulled [TK] towards him in the bed and the two went to sleep. The following morning [TK] woke to notice that he had sperm in his backside. He then went to the toilet and noticed that his bottom was bleeding and that there was sperm mixed with his faeces. Whilst Charge 1 is a charge of buggery, it is abundantly plain that in fact the allegation is one of rape of a somnolent child.
(b) In relation to [PC], Charge 12, the circumstances surrounding that offending are as follows: the Accused came to [PC]’s bed in the middle of the night at the home. He was taken to the Accused’s room and into the Accused’s bed. The Accused placed his penis between [PC]’s bottom cheeks and penetrated his anus with his penis. The Accused ejaculated into his anus. Following this the accused led [PC] back to the dormitory and to his bed.
(c) In relation to [AA], Charges 16 and 18, the circumstances surrounding those two charges of buggery are that [AA] stayed with the Accused in his house in Thorpdale. That after having masturbated [AA]’s penis, the Accused undressed himself and put [AA] on the bed on to his stomach and then penetrated his anus with his penis. [AA] was in pain and yelled. The Accused continued, but stopped for a while, and then said that it was ‘their little secret’.
In relation to Charge 18, the circumstances surrounding that charge of buggery are that [AA] was with the Accused on a camping trip. The Accused stroked [AA]’s penis with his hand and his penis became erect (the subject of Charge 17) and then the Accused rolled [AA] on to his stomach on the bed and placed his penis in [AA]’s anus. Again, [AA] yelled in pain but the Accused muffled his scream by placing his hand over [AA]’s mouth, but continued to penetrate [AA]’s anus. Again, he was told not to mention it to anyone and that it was their little secret. That incident has aspects of a ‘consensual nature’, albeit a child of that age is incapable of consenting.
Thus, there are different circumstances, in particular between [TK] and both [PC] and [AA], and even as between all four incidents the circumstances are different.
Thirdly, the other sexual activities engaged in ranged widely from the instances of anal intercourse already discussed (Charges 1, 12, 16 & 18). They involved touching and fondling [ME]’s penis and testies (Charges 2, 3 & 4); to masturbating [RF]’s penis and attempted oral sex (Charges 6 & 7); to placing [PC]’s hand on the Accused’s penis (Charge 8) and making [PC] masturbate the Accused’s penis (Charges 9 & 11) and making [PC] lie on the Accused’s bed, ejaculating between his bottom cheeks (Charge 10); to mutual masturbating and ejaculation with [SP] (Charge 13); to masturbating [AA]’s penis (Charge 14, 15 & 17).
Depraved as each of the alleged acts were there is no discernible pattern of distinctive acts. Indeed, it could well be said that many of these acts were distinctly different. Furthermore, many of the acts complained of are considered in this State to be of a common kind in the experience of the courts and accordingly do not as such display any remarkable or distinctive features.
Fourthly, of the six complainants two complain of violence as being dealt out to them.
(a) In relation to [RF], in para 24 of the prosecution opening, describes Charge 7 in this way:
‘On another occasion, when [RF] was in the Accused’s room, the Accused rubbed his erect penis across [RF]’s lips and pushed it hard against them (Charge 7 Indecent Assault on a Male). [RF] closed his mouth tight and moved his face away. [RF] was crying. The Accused pulled up his pants and then [RF] went back to bed.’
(b) In relation to [PC] in particular, in paras 28 to 30 the summary describes these types of events:
‘When [PC] was living at the [the Home], he was caught smoking by one of the other children. The Accused found out. Later that same evening, [PC] was in his bed asleep. He woke to being dragged by the hair into his flat. This was the first time that [PC] had been inside the Accused’s room. [PC] was made to sit in the Accused’s room and not move for an extended period of time.
The Accused sat next to [PC] and grabbed [PC]’s hand and put it onto the Accused’s erect penis. [PC] was made to masturbate the Accused’s penis and watched the Accused orgasm (Charge 9 Indecent Assault on a Male).’
And later:
‘On another occasion, [PC] and [MP] were woken by the Accused during the night and taken to the Accused’s flat. [MP] was another boy at the Home. The Accused made them sit on stools for an extended period of time. [PC] recalls it being related to smoking, or wagging and that it was a form of punishment. [MP] fell asleep and fell from his stool. [PC] attempted to help him off the floor but the Accused saw this and grabbed [PC] and threw him against the wall. The Accused hit [PC]’s head against the wall and kicked him. [MP] was later told to go back to the dormitory.
The Accused took [PC] into his bedroom and made [PC] lay down on the bed. He undressed [PC] and undressed himself. The Accused laid behind [PC] and he could feel the Accused’s erect penis against his bottom cheeks in a “spooning” position. [PC] felt the Accused ejaculate between his bottom cheeks.’ (Charge 10).
Thus, there is a range of sexual activity, including activity associated with violence, particularly in relation to the last incident I have referred to involving [PC], which is entirely absent in relation to the other four complainants who describe the Accused’s behaviour towards them as being otherwise benevolent.
Fifthly, [RF] was never taken out of the home, although that is of perhaps little moment given the fact that he was a bed wetter and that may provide an explanation to it.
Sixthly, the locations involved vary from the Accused’s parents’ home in relation to [TK], to the Accused’s mother’s home on a farm in relation to [ME], to [RF] being sexually abused in his own bed and in the Accused’s room either standing or sitting. In relation to [PC], at the home in the complainant’s bed, the Accused’s bed, or the Accused’s van on another occasion. In relation to [SP], in the Accused’s van, and in relation to [AA], in the Accused’s van and the Accused’s house.
Finally, four of the complainants were either asleep or half asleep. Two not.[6]
[6]Ruling [28]–[37].
The trial judge’s conclusion that severance was warranted was stated succinctly as follows:
As is plain from the descriptions of the various acts set out in the prosecution opening, there appears not to be any particular pattern. Is there then a sufficient underlying unity between the events? In my view, there is no such sufficient underlying unity. That is not to deny there is a pattern of abuse of such young children, but it falls well short of establishing the underlying unity such that the evidence could be said to have significant probative value as required in Victoria. What is established does not do any more than ‘... prove a disposition to commit crimes of the kind in question...’, Velkoski at para 146.
For those reasons I refuse to allow the evidence to be used as coincidence evidence and for similar reasons tendency evidence. Necessarily it follows that there must be separate trials in relation to each of the six complainants’ allegations.[7]
[7]Ruling [38]–[39].
The Director’s submissions before this Court
In substance, the Director submitted that the trial judge had erred by giving too much weight to the various dissimilarities in the manner in offending identified by him, rather than remarking upon the probative value of the sheer number of complainants who gave broadly similar accounts of sexual abuse. His Honour had failed to give proper weight to the similarities surrounding the circumstances in which the offences had allegedly occurred, as distinct from the details of the offending itself.
During the course of oral argument, senior counsel for the Crown resiled from her earlier submission that the evidence of all six complainants was fully cross-admissible. She accepted that, at least in relation to RF, both the nature of the conduct alleged, and the circumstances in which that conduct was said to have arisen, differed significantly from the claims made by the other five complainants. Accordingly, she accepted that the case involving RF should be tried separately from
the case involving the other complainants. To that extent, she accepted that the trial judge had been correct in ordering at least a measure of severance.[8]
[8]In the case of RF the conduct alleged against the respondent was all said to have occurred at the Home, by way of contrast to the allegations involving the other five boys. Moreover, there was one act alleged against the respondent in relation to RF that bore little similarity to the conduct alleged against him by the other boys (charge 7).
Both during the course of argument before the trial judge, and before this Court, senior counsel for the Crown also acknowledged that there might be some justification for treating the allegations made by PC as insufficiently similar to the allegations made by the other complainants to warrant cross-admissibility. Her concession in that regard was made somewhat grudgingly, but reflected an appreciation of just how complex a trial might be that involved some cross-admissibility with regard to PC’s evidence with the evidence of some other complainants, but not with others.
The respondent’s submissions before this Court
The respondent, on the other hand, submitted both below and before this Court, that the differences between the manner in which each complainant claimed to have been abused, and the circumstances surrounding that offending, made it impossible to conclude that there was sufficient similarity in the allegations to justify a finding of significant probative value. Accordingly, the trial judge had been correct to order severance of each complainant’s trial.
Analysis and conclusions
As can be seen from the extract from the trial judge’s ruling set out above at paragraphs [23] and [24], his analysis of the evidence of each complainant was extremely detailed, descending at points into what might be described as minutiae.
As the trial judge recognised, there is always a danger in cases involving multiple complainants, of embarking upon a too detailed search for dissimilarities, (of which there will always be a number) and then treating the existence of such differences as the basis for watering down the probative value that should properly attach to the broader similarities.
One aspect of that danger is that a trial judge might, almost subconsciously, drift into a search for what might traditionally have been termed ‘striking similarity’.
Without descending into enormous detail, it seems to me that the trial judge was entirely correct to sever the trials involving three of the complainants – RF, PC, and SP – from the trials involving the remaining three complainants.
As indicated, senior counsel for the Crown more or less conceded that RF and PC should be tried separately from the others and from each other. I would extend that finding to SP.
The allegations made by SP, which gave rise to charge 13 (indecent assault) are of a different character to many of the other allegations. In effect, they amount to mutual masturbation, and nothing more. The offences were supposedly committed by the respondent some years after SP had left the Home. They suggest willing conduct on the part of SP. This puts them into a somewhat different category to the allegations made by the other complainants.
In addition, SP was somewhat older than the other boys. He was aged 14 or 15 at the time of the alleged offences.[9]
[9]There is an error in the notice.
In summary, there is insufficient similarity between SP’s allegations and those of the other complainants, whether as to act or circumstance, to justify cross-admissibility.
On the other hand, I consider that, with respect, the trial judge erred in ordering severance of the trials of TK, ME, and AA from each other. Coincidence reasoning could properly be employed by the Crown in relation to the allegations made by each of those three complainants.
The basic underlying unity for those allegations is that all three complainants were living at the Home at the time of the offending, and the abuse occurred when all three were taken away by the respondent for a weekend break to a place of his choosing. These features are significant, and distinctive notwithstanding the fact that it was a common practice at the home for the boys to be taken away on the weekends. In addition, the complainants were all of a similar age.
TK’s allegations (charge 1) involve a single act of buggery, said to have been committed by the respondent at the respondent’s parents’ house during a weekend stay.
ME’s allegations involve a series of indecent assaults (charges 2, 3, and 4), all of them said to have been committed by the respondent at the respondent’s mother’s house, once again during a weekend away from the Home.
AA’s allegations of indecent assault and buggery (charges 14, 15, 16, 17, and 18) involve the respondent having used multiple weekends away as the opportunity to engage in these offences in a way that has a number of similarities to the allegations made by TK and ME. In my view, there is sufficient similarity to warrant cross-admissibility.
The combination of the abuse of trust by an adult male, using a weekend away with a young boy entrusted to his care, is sufficient, along with the other circumstantial evidence, to justify cross-admissibility.
It is true that there were some differences between the acts complained of. TK alleges buggery only, and ME’s complaints are of indecent assault. Certainly, there is no reason why, on the basis of coincidence reasoning, the evidence of TK and AA as to acts of buggery perpetrated upon them should not be cross-admissible. Nor is there any reason why the evidence of ME and AA as to the indecent assaults committed by the respondent upon them should not be cross-admissible.
There are obvious dissimilarities between the allegations involving TK, ME, and AA. However, these dissimilarities do not, in my view, significantly diminish the underlying unity of what underpins coincidence reasoning in this case. For example, the fact that TK was asleep at the time of the alleged penetration (whereas AA was awake throughout) can hardly constitute a basis for disregarding the salient facts that suggest sufficient similarity in acts and circumstances to warrant cross-admissibility. To the extent that the trial judge thought otherwise, I respectfully disagree.
The trial judge did not deal with the operation of s 101 of the Act because he was not persuaded that the threshold requirements of either ss 97 or 98 had been met. In my opinion, s 101 does not preclude a single trial involving the evidence of TK, ME and AA from being conducted because the probative value of the evidence does not substantially outweigh any prejudicial effect it may have on the respondent.
I would grant the Director leave to appeal, and order that the appeal be allowed in part. I would set aside the decision below granting severance. In lieu thereof, I would order that severance be granted only in relation to three of the complainants — RF, PC, and SP. In other words, there should be a separate trial in respect of the allegations made by each for those three complainants. I would further order that there be a single trial relating to TK, ME, and AA, on the basis that their evidence is, in some measure at least, cross-admissible. The exact parameters of that cross-admissibility can be dealt with at a later stage by the trial judge.
FERGUSON JA:
I agree with Coghlan JA.
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Schedule A – Particulars for each event
| COMPLAINANT | DATE and AGE | TIME | PLACE | CIRCUMSTANCES | WITNESS(ES) | SUBSTANCE OF EVIDENCE |
| TK | 19.9.1972- 24.8.1974 12-14 years | Night | Accused’s house - Silvan | “I was lying on my right side and he was on his side behind me. He pulled me back to him and we went to sleep. I don’t remember what happened through the night... [M]y bum was bleeding and there was sperm when I went to the toilet in with the crap (shit)... I know that I woke up and had sperm in my backside.” (Charge 1) | TK | Committal evidence TK 16/6/2014 page 21 of depositions. Statement of TK 6/6/2013, pages 403 [20] and 404[21] of depositions. |
| ME | 1.2.1973- 28.2.1974 11-12 years | Night | Accused’s mothers house - Wandin | “Probably the first time he said that I would have got into his bed. Then it was like his body all over me.. .I got into bed on the closest side and I faced back towards my stretcher, so I was lying on my left side. He was spooning me all the night from behind.... I was going into a sleep and his hand went into my pants...It happened that night about 4 or 5 times... He touched everywhere, over my penis and all that. By that I mean penis and balls. He was playing he was fondering [sic].” (charge 2) The second time I got into his bed, he did the same again just kept fondering [sic] me. By that I mean he was behind me in the same position and he put his hand into my pants and touched my penis and balls (charge 3). I think it was the third time that I had gone back to his bed and I woke up and he was doing it again. It was the same thing, he had his hands down the front of my pants and played, fondered [sic] with my penis and balls. ….” (Charge 4) | ME | Statement of ME 7/6/2013 pages 433 [34] and 434 [35] and [37], and 435 [38] |
RF | 28.5.1975- 30.9.1976 9-11 years | Night | [The Home] | “The first time he ever did it I was in bed and I woke to him fondling with me, my penis. ... ...[H]e said, “I’m just checking to see if you wet the bed.” (Charge 5) | RF | Statement of RF 12/6/2013 p446[l 1]. Committal evidence RF 17/6/2014 pl65. |
| 28.5.1975- 30.9.1976 9-11 years | Night | [The Home] | . .1 had a bit of a nightmare or something. I woke up crying and he just carried me to his room.... He sat me on his lap...He sat on the chair and was rocking and cuddling me. He was pretending to comfort me... He rubbed my balls and penis and it went on for about 20 minutes” (Charge 6) | RF | Statement of RF 12/6/2013 p447[17-23] Committal evidence RF 17/6/2014 pl69 | |
| 28.5.1975- 30.9.1976 9-11 years | Night | [The Home] | “He also rubbed his erect penis across my lips trying to make me put it in my mouth. He pushed his penis against my lips but I closed my mouth really tight and was moving my face away. His penis went against my lips and it may have gone inside my lips...He pulled his pants up, waited til I calmed down and then I went back to bed.” (Charge 7) | RF | Statement of RF 12/6/2013 p449[27] |
| PC | 29.1.1977- 7.4.1979 9-12 years | Night | [The Home] | “The first time I was assaulted by Smiley I was in bed asleep. I woke up with my left hand down the front of his pants. I had my hand on his dick... It was erect... He sat on my bed for about 5 minutes until he cum. I mean ejaculated. My hand was stroking his penis.” (Charge 8) | PC | Statement of PC 12/11/2002 page 409. Committal evidence PC 16/6/2014 p52-53. |
| 29.1.1977- 7.4.1979 9-12 years | Night | [The Home] | “Smiley grabbed my right hand and put it onto the front of his pyjamas onto his penis. It was erect. This was the first time I looked at his penis. I remember the smell of his penis. He was uncircumcised. It smelt terrible...This was the first time I saw him actually cum...By this time I knew what he wanted and I was pulling his dick to make him cum. (Charge 9) | PC | Statement of PC 12/11/2002 page 411. Committal evidence PC 16/6/2014 p56. | |
| 7.4.1978- 7.4.1979 11-12 years | Night | [The Home] | “Smiley took me into his bedroom. ... He made me lay down on his bed. I was laying on my left side. He came from behind me. I was facing his wardrobes. He got on the bed behind me...He slid them [pyjama pants] down to below my butt cheeks. I could feel his erect penis against my butt cheeks It was like a spoon position. He was laying on the bed behind me.. .He tried two or three times to force his penis into my bum.” (Charge 10) | PC | Statement of PC 12/11/2002 page 412-413. Committal evidence PC 16/6/2014 p65-67 | |
| 7.4.1979- 7.4.1980 12-13 years | Night | Camp — Lake Mountain | “I was having nightmares that night in the tent.. .They wanted to settle me down so Smiley took me into his van... I got in the bed first... He grabbed my left hand and put it on his penis. His penis was erect. I masturbated him until he cum. I was pulling his penis up and down. This took about 5 to 6 minutes.” (Charge 11) | PC | Statement of PC 12/11/2002 page 413. Committal evidence PC 16/6/2014 p69-70. |
| PC | 7.4.1979- 7.4.1980 12-13 years | Night | [The Home] | “Took me into his room as usual... Went to his bed, done the same thing, put his penis between my butt cheeks, it was pre-come. He didn't just ram it in, he just kind of put his head in first, I remember the pain, the absolute pain I was in. I had my eyes closed and then he put the rest of his penis in... I remember his breathing getting heavier and heavier and I could feel him ejaculate up me backside...” (Charge 12) | PC | Statement of PC 12/11/2002 page 417. |
| SP | 15.11.1978 15.11.1978 11-12 years | Night | Camping - Stanhope | “I remember laying there, Smiley was on the driver's side of the vehicle and 1 was on the passenger side. We were facing each other with our heads closest to the back of the vehicle. We had blankets or sheets over us...I was lying on my right side and I had my left arm around him, around his midriff I think. I am not sure where his hand was, I think around my belly area as well. Next thing that I remember is that we were playing with each other, as in touching each other's genitals....! remember we were touching each other at the same time. He touched my penis, his hand was around my penis and he moved it an [sic] up and down fashion. I touched his penis the same way while he did that. We both ejaculated.. (Charge 13) | SP | Statement of SP 4/6/2013 page 592 [31-32]. Committal evidence SP 20/6/2014 page 324. |
| AA | 15.11.1978 15.11.1978 11-12 years | Night | Camping - Walhalla | . .[Alexander] started to undress me in readiness for a shower...He then caressed my body all over, he started at the shoulders and went down to my privates....then his hand moved down to my penis and he started to stroke it and he asked if I liked it and I said quite nervously that I did....When 1 say he stroked my penis he rubbed it up and down with his hand clasped around it, in other words masturbating me.” (Charge 14) | AA | Statement of AA 1/11/13 page 440[16] Committal evidence AA 17/6/2014 page 142. |
| 15.11.1978 15.11.1978 11-12 years | Night | Accused’s bedroom - Thorpdale | ... [Ojnce 1 were [sic] there one night he started the whole undressing me, caressing me all over...This happened in his bedroom which was at the front of the house... He helped me undress, I can’t remember all the detail but I know he helped me to get my clothes off. Then he caressed me while I was naked. He made me sit on the bed next to him....He rubbed over my body and then did the whole masturbation thing again. He caressed my penis to get it erect, he wrapped his hand around and moved it up and down.” (Charge 15) | AA | Statement of AA 1/11/13 page 441[19-21] Committal evidence AA 17/6/2014 page 144-145. | |
| 15.11.1978 -15.11.1978 12-13 years | Night | Accused’s bedroom - Thorpdale | [H]e undressed himself. Then he gently lifted me and placed me on his bed, on my stomach and placed his penis into my anus. I was horrified and it was agonising pain...” (Charge 16) | AA | Statement of AA 1/11/13 page 441 [22] Committal evidence AA 17/6/2014 pages 145-146. | |
| 15.11.1979 15.11.180 12-13 years | Not specified | Camping - Walhalla | “He did the same as before, as he did at the house. That is undress me for shower time, saying how he loved me, caress my entire body, then start on getting me erect by stroking my penis with his hands.” (Charge 17) | AA | Statement of AA 1/11/13 page 441 [23] Committal AA 17/6/2014 page l51 | |
| 15.11.1979 15.11.197912-13 years | Not specified | “He rolled me over onto my stomach on the bed and placed his penis into my anus...I yelled with extreme pain but he held his hand over my mouth to muffle the sound and he just kept having anal intercourse with me...” (Charge 18) | AA | Statement of AA 1/11/13 page 441 [24] Committal AA 17/6/2014 page l51 |
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