R v Adams
[2015] SADC 132
•2 October 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ADAMS
Criminal Trial by Judge Alone
[2015] SADC 132
Reasons for the Verdict of His Honour Judge Soulio
2 October 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of aggravated indecent assault pursuant to s 56(2) of the Criminal Law Consolidation Act 1935 (SA).
Verdict - Guilty
Criminal Law Consolidation Act 1935 s 56(2); Evidence Act 1929 ss 34CA, 34CB, 34M, referred to.
R v Keyte (2000) 78 SASR 68; R v Dossi (1918) 13 Cr App R 158; R v J, JA [2009] SASC 401; R v Davis (1995) 81 A Crim R 156; R v Liddy (No 4) [2001] SASC 152; R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995); Crampton v The Queen (2000) 206 CLR 161; R v Keyte (2000) 78 SASR 68, considered.
R v ADAMS
[2015] SADC 132Background
The complainant, P, alleges that in about 2010 when he was 12 or 13 years old, and in year six or seven at school, he was sexually assaulted by the accused. The accused, who was the neighbour of P’s aunt at the time of the offending, denies the allegation. Pursuant to s 7 of the Juries Act 1927, the accused elected for trial by judge alone. I am required to provide detailed reasons for verdict.[1]
[1] R v Keyte (2000) 78 SASR 68 per Doyle CJ.
The Charge
The accused is charged with one count of aggravated indecent assault pursuant to s 56(2) of the Criminal Law Consolidation Act 1935.
The particulars alleged are that:
The accused between the 31st day of October 2009 and the 1st day of January 2011 at Loxton, indecently assaulted [the complainant] a person under the age of 14 years.
Although the offence is alleged to have occurred at some time within a specified range of dates, the precise date is not a vital ingredient of the particularised act or charged offence. The act or occasion alleged must be identified and I must be satisfied that the particular act charged is proven beyond reasonable doubt.[2]
The Law
[2] R v Dossi (1918) 13 Cr App R 158 at 159-60.
General Directions
It is necessary to give consideration to the elements of the offence and to the onus of proof. It is necessary to consider the warning which is required given the delay in bringing attention to the matters the subject of the present trial; and the use to be made of the initial “complaint” by P.
The accused is presumed to be innocent unless and until his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the Crown. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The prosecution must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied before I could convict the accused of the charge on the Information that the prosecution has proved beyond reasonable doubt each element of the charge. Where I refer to something being proved, or being satisfied of, or accepting something, I shall mean beyond reasonable doubt.
It follows that if I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
The complainant, who was 18 years old when he gave evidence, did so by CCTV and in the presence of a court companion. His mother and his aunt gave evidence with the benefit of a screen. That does not affect the weight to be given to their evidence, nor permit any adverse inference to be drawn against the accused.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
A Preliminary Matter
Counsel for the prosecution made an application pursuant to s 34CA of the Evidence Act 1929 to have the complainant declared a protected witness with the consequence that his evidence be admitted by way of statements he had made to a police officer, of which statement there was an audio-visual record.
Section 34CA provides:
(1)A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if—
(a) the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b) —
(i)the protected witness has been called, or is available to be called, as the proceedings; and
(ii)the court gives permission for the protected witness to be cross‑examined on matters arising from the evidence.
(2)A court may only give permission to allow a protected witness to be cross‑examined on such matters if satisfied that the cross‑examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3)Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4)In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross‑examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5) In this section—
protected witness means—
(a) a young child; or
(b) a person who suffers from a mental disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
Having considered information contained in a report following what was described as a learning assessment of the complainant, the recorded interview of the complainant, and having considered the submissions of counsel, I declined to make an order pursuant to s 34CA of the Evidence Act, and required the complainant to give evidence and be available for cross-examination.
Section 34M Evidence Act
The offence against the complainant is alleged to have occurred between late 2009 and early 2010, nearly six years ago. The first time the matter was raised by the complainant was at about the end of 2012. The evidence as to the making of the initial complaint is P’s evidence that he told his mother L that the accused had touched him “from the front and back”.[3]
[3] T 19.
Evidence of the initial complaint by P was led in accordance with s 34M(3) of the Evidence Act which provides:
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
I remind myself that evidence of the initial complaint is only admitted to inform me as to the way in which the allegations first came to light, and potentially as evidence of the consistency of the conduct of the complainant and the reliability of his evidence.[4] It is not admitted as evidence of the truth of what the complainant alleges.[5]
[4] R v J, JA [2009] SASC 401 per Duggan J at [93]; R v England (2013) 116 SASR 589 at [33].
[5] Section 34M(4) Evidence Act.
Delay in Complaint
Here, whilst on the prosecution case there was a complaint made, there was a delay of about three years in making the complaint and in bringing the matter to the attention of prosecuting authorities. There was a further delay of about one year before the accused was reported for the offence, and he was first charged on Information dated 10 September 2014.
Section 34M(2) of the Evidence Act provides that:
In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
Further, s 34CB of the Evidence Act provides:
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note— See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b) must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
There may be good reason to explain the delay in the making of a complaint.[6]
… It is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child … it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.[7]
[6] See for example R v Davis (1995) 81 A Crim R 156 p 158-159; R v Liddy (No 4) [2001] SASC 152.
[7] R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995) cited in R v Davis (1995) 81 A Crim R 156 p 158-159.
I bear in mind that where there is a substantial delay in the making of a complaint, the defence will frequently consist of outright denials, because the passage of time denies the necessary forensic tool that contemporaneity provides.[8]
[8] Crampton v The Queen (2000) 206 CLR 161 at [45].
Forensic Disadvantage
Here, the lapse of time is such that there is a significant risk that the accused has suffered a forensic disadvantage. Because of such a delay there is almost always the potential that an accused has been deprived of the opportunity to adequately test the allegations. In particular, he may not be as well placed to call evidence to counter the allegations.
If I find that the lapse of time is such that the accused has suffered a significant forensic disadvantage, as the case against the accused essentially consists of the complainant’s unsupported evidence, I would approach the charge on the basis that I should give close scrutiny to the complainant’s evidence. I must take into account the forensic disadvantage when scrutinising the evidence.
Despite the issue of forensic disadvantage not being specifically addressed by counsel, I find that the accused has suffered a forensic disadvantage. When making findings about evidence, I have done so taking into account the forensic disadvantage suffered by the accused.
Motive
Counsel for the accused suggested to the prosecution witnesses that there was a motive for the complainant to lie, or that the complainant’s evidence was given as a result of a particular belief he had or information he had about the accused’s antecedent history. It was suggested the complainant first, was aware that the accused had been convicted of sexual offences against other young boys, and second, the accused’s mother and aunt had induced him to make false allegations in order to attract an award of compensation.
That submission by counsel for the accused is a matter I can take into account when assessing the complainant’s evidence and considering the issues for determination. However I bear in mind that there is no onus on the defence to prove a motive to lie, and that it is for the prosecution to establish the elements of the offences beyond a reasonable doubt.
I have carefully considered the evidence and submissions about the motive to lie in assessing the credibility of P.
For reasons I refer to below I completely reject the suggestion that the complainant had a motive to lie and I accept the complainant’s evidence beyond reasonable doubt that he had no knowledge of the accused’s history prior to making the initial complaint, nor did his mother or aunt have any knowledge of criminal injuries compensation payments made in respect of the other offences defence counsel suggested the accused had committed.
Of course rejecting the defence contention, as to motive even as a reasonable possibility, does not relieve me of the responsibility to be satisfied beyond a reasonable doubt as to the truth of the allegations before I could return a verdict of guilty.
I otherwise disregard the suggestion as to previous offending.
The Elements of the Offence
Indecent Assault
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove each of four elements beyond reasonable doubt.
The first is that there was an application of force. Here, the act alleged to constitute the assault is that the accused, using both hands, touched or grabbed P in the region of his groin and buttocks.
The second element requires that the application of force must be intentional rather than accidental touching. Given the nature of the touching alleged by the complainant, were I to accept, beyond reasonable doubt, that such touching occurred, I would infer that the application of force was intentional.
The third element is that the application of force must be without lawful justification. Here, there was no suggestion, and could be no suggestion on the evidence, that there was any lawful justification.
The fourth element is that the assault must be accompanied by, or occur in circumstances of, indecency. I bear in mind that opinions may differ as to what is or is not indecent, but there are types of conduct which by any reasonable standard can only be described as indecent. Given the undisputed age of the complainant, consent is not an issue. The defence did not dispute that if the act alleged by P was committed, the act constituted an act of indecent assault.
Witnesses
The prosecution case comprised the evidence of the complainant P, the complainant’s mother L, the complainant’s aunt A, and the investigating officer Detective Brevet Sergeant Bussenschutt. The accused gave evidence in his own defence and his son, J, gave evidence as part of the defence case. A letter from a school teacher, Mr Semmler, to P’s mother also formed part of the defence case
The Prosecution Evidence
Complainant P
The complainant, P, was born on 7 April 1997 and was 18 years old at the time of giving his evidence. It follows that he was between 12 and 13 years old during the period of time particularised in the Information.
P gave evidence that the accused lived next door to his aunt’s place. He did not know the name of the street. P said he often used to visit his aunt at her house. He met the accused through his aunt.
He said that he had been to the accused’s house, and had met the accused about ten times. He said the accused drove a taxi. P described the boot area of the taxi as being unusual because it was not “like your cars where you lift the boot up, it was in with the actual car itself. So it had the back, like the back seats, and then it had the boot behind the seats”. He said that if the boot was lifted, there was room in the back where he could sit. P said he had been in the boot area of the accused’s taxi when it was at the accused’s house.[9]
[9] T 20.
In relation to the alleged incident, P said on an occasion when he was at A’s place for the weekend. The power went out so they went next door to the accused’s house. His aunt talked to the accused and had coffee. While his aunt was talking to the accused, P said was “looking around at the paintings and the little ornaments”.[10] P said his aunt then went back to her house to get something while he remained in the house. P was asked the following:[11]
QAfter she went back next door to get something, what happened.
AWell, I was looking at the ornaments and the little paintings and that and then Trevor Adams came up to me and touched me from the front and back.
[10] T 17.
[11] T 17.
P said the accused grabbed his penis area with one hand at the front and one at the back, and “squeezed it”. He said the accused touched his behind in the same way as the penis area, and at the same time. He said the accused “sort of squeezed it”. P made gestures of opening and closing the fingers of his hand as he described the action.[12] He said he did not want the accused to do that. When the touching happened, P said he was in between the kitchen and the lounge room, closer to the lounge and the accused was in the kitchen area. He said the accused was at his side.[13] P told the accused, more than once, to stop but he said the accused did not listen. P said he felt uncomfortable and scared when the accused touched him.[14]
[12] T 17 & T 18.
[13] T 18.
[14] T 21.
P said the grabbing went on for about 30 seconds and then stopped. He said his aunt had been at her place for four to five minutes. He heard the front screen door of his aunt’s house opening and closing. He said the door made a squeaking sound, and when it was fully shut, it made a little bang.[15] He said the accused told him not to say anything because no one would believe him. P did not tell his aunt about what happened.
[15] T 18.
A few years after the incident, P told his mother what had happened. She was the first person he told. He said his mother knew something was up and they went into the caravan. His mother said to him that if anyone had touched him or done anything, he should not to be scared to say anything. P said he “ended up telling her what happened and sort of cried about it”. He told his mother how the accused touched him from the front and the back. He said they went to Headspace, which I apprehend was a counselling service, and then Headspace got them to go and tell the police in Loxton.[16]
Cross-examination of P
[16] T 19.
P was cross-examined as to when the incident occurred. He said that it happened in about 2010 when he was in about year 6 or 7. He has an older brother, D, who is 21 years old. He said that at the time of the incident, he went to Loxton Primary School and his brother was in high school.[17]
[17] T 21 & T 22.
Counsel for the accused cross-examined P as to P’s knowledge of the fact that the accused had been charged with and convicted of sexual offences committed against the other young boys. Such questioning was intended to ground an ultimate submission that P was motivated to make a false complaint because of his knowledge of the accused’s unrelated offending against others.
P said that in 2010, he did not know that the accused had been arrested and charged with touching a number of boys in Loxton. P denied having heard about that matter either at school or through his brother, although he agreed that he had attended school with two of the boys identified by defence counsel, and knew another of the boys.
P was asked whether he had heard that the accused had been convicted of interfering with those boys and had been sent to prison. P responded, “No, the only time I heard of that was when the police mentioned it to me” which he said happened “just after the interview”.[18]
[18] T 23.
P said he visited his aunt from time to time. He said in relation to the day of the alleged offence that he was not sure what caused the power to go off. P agreed that he visited the accused’s house that day. He said it was not the first time he had been to the accused’s house. He said he had been there three to four times before, and always in company with his aunt. P said that while at the accused’s house he looked at pictures but could not specifically recall the subject matter of the pictures.
The following was put to P:[19]
[19] T 23 & T 24.
QI’m going to suggest to you that you’ve never been to Mr Adams’ house.
ANo, I have.
QAnd that possibly your mother and possibly your aunty have suggested to you that this incident happened.
ANope.
QAnd that in fact Mr Adams has never even met you.
AHe has.
Complainant’s Mother
The complainant’s mother, L, said that P was born on 7 April 1997. She has six other children. She said of the complainant that “he struggled a little bit with his school work, and he was diagnosed with an intellectual disability”. She said she thought the diagnosis was made when he was aged 10 or 12 years.[20]
[20] T 26.
L said P’s behaviour at the end of 2012 “started getting on a rocky basis”. She said that his behaviour had been good but had changed. She gave evidence that P had exposed himself to his young cousin. She said that on one occasion P was found under her daughter’s bed. She said that she had observed other behaviour of a sexual nature including “masturbating with his bedroom door open”. She said P was stealing money from the teachers’ desks and was getting into trouble at school for that.[21]
[21] T 26 & T 27.
She said that such behaviour caused her to have a discussion with P in about November, although she was not sure of the year. She had a discussion with him at home in a caravan she used for her “time-out room”. She said she just asked P if anyone had done anything that they should not have, or had touched him in any inappropriate way. She said P initially said no. However, she said, “just the look in his eyes and his face, I could see that he wasn’t telling the truth”. She said, “I re-asked him again and I said if anyone’s done anything that they shouldn’t have, like he could tell me and he told me yes.” P told her that the accused touched him “on the front and back”. She said she could not get any further details from him.[22] She was asked the following:[23]
QAs best you can, what were the words that he used, the words that your son used, to tell you what had happened with Trevor Adams.
AWell, I asked him like what happened and that, and he said ‘He touched me on the front and back’, and I said ‘Why didn’t you come to me and that?’, and he said ‘Because I was told that if I told them, like they wouldn’t believe me’.
[22] T 27.
[23] T 27 & T28.
L said she had met the accused through her former partner, P’s father, many years earlier. She was about five months pregnant when she and P’s father separated. She gave evidence that her sister, A, lived in Loxton and that she and P visited her sister from time to time. From time to time when she had things to do, she would make arrangements for P to visit her sister. She said that on a couple of occasions P slept at her sister’s Housing Trust duplex next door to the accused.[24] When she collected P from her sister’s place, she saw and acknowledged the accused. She said she saw the accused in the town. On one occasion the accused asked how P was doing, using his diminutive name “Pauly”, a name by which he was known amongst members of his family. She said in evidence that she thought that was a bit strange, saying: “Well normally when you ask someone how someone’s doing, you ask how the rest of the children are going, not just one”. She gave evidence that despite having seven children, six boys and a girl, the accused only asked about P.[25]
Cross-examination of L
[24] T 28.
[25] T 28 & T 29.
L was cross-examined as to whether P had problems at school predating any alleged incident involving the accused. She disagreed. She also disagreed that P was assessed to determine whether he needed referral to a special school in grade 2. She agreed however that “he needed support with his learning back in year 2”. She was asked whether she was aware that at times during P’s time at school, consideration had been given as to whether P should go to a special school. She said that such an assessment was conducted when P was in about year 10. She disagreed that P had behavioural problems, other than difficulty with learning.[26]
[26] T 29 & T 30.
A letter dated 28 August 2007 (that is prior to the alleged offence) from P’s school authored by a Mr Semmler and addressed to L was admitted into evidence, not to prove allegations as to P’s behaviour, but to prove that such a communication was made to L. Counsel for the prosecution did not object to its tender on that basis.[27]
[27] T 31 & T 32.
The letter states in part: [28]
[P] took some things from [B’s] Brian’s bag after school yesterday (Monday).
I followed it up today, he admitted he did it and told you. (He also claims [D] did it – some other saw [P] and said [D] wasn’t involved).
As this is another case of stealing, I internally suspended him today – he worked in the office area and had separate play times to others.
[28] Exhibit D2.
L acknowledged that P exhibited behavioural problems well prior to late 2012, but described the behavioural problems as minor.
L was also cross-examined as to whether she was aware, prior to the complaint made by P, that in September 2010, the accused had been arrested in relation to allegations of sexual offences against young boys in the Loxton area. She said she did not hear anything about the accused being arrested until later on, in about November or December 2010.[29]
[29] T 32.
Counsel suggested that she must have been aware from general discussions in Loxton that in September 2011 the accused had been convicted after a trial, and that on 25 January 2012 a significant sentence of imprisonment was imposed in relation to sexual offences committed against four boys. L agreed that she would have heard about such events. She denied having heard subsequently that the boys had received payment pursuant to the criminal injuries compensation legislation.[30]
[30] T 32 & T 33
She could not recall the period of time between the occasions, but said it could have been a couple of months.
She said in cross-examination that P had stayed overnight at her sister’s house on two or possibly three occasions. She said she did not know that P had gone to the accused’s house at all, until she found out about the “touching part and stuff” when she had a talk to P.[31]
[31] T 32.
She was unable to recall when it was that the accused asked her about P. She was asked whether that inquiry was before or after the occasions P had slept at A’s house, and said “No, it was just general conversation if I seen him at the supermarket or up the street he would ask”. It was put to L that the accused had never made an inquiry about P. She maintained that he had. It was suggested to her that the accused never met P in her presence. She said that when she was in the front yard, and I infer with P present, at her sister’s house, she had seen the accused in his front yard.[32] She said the suggestion that the accused had only met her on a couple of occasions, and never while she was with P, was incorrect.[33]
[32] T 33 & T 34.
[33] T 34.
L denied that she had suggested to P that he had been indecently assaulted by the accused, rather than P informing her of the incident.
Complainant’s Aunt
The complainant’s aunt, A, gave evidence that she formerly lived in a Housing Trust duplex next to the accused. She said her nephew, P came to visit her. She said he would come for sleepovers on weekends or school holidays, whenever he could, and whenever he wanted to earn pocket money. P helped with cleaning-up around the house, and keeping an eye on her young twins. She also said “he had to help me clean or he would help me with making bottles or stuff like that”.[34]
[34] T 35 & T 36.
A said that she often spoke with the accused, mostly at the front of the house, but they could see each other and talk to each other at the back of the house. There was a small fence at the front which she said “you just put your leg over and you’re over the fence”[35]
She said that on a few occasions she spoke to the accused when P was with her. She said that on occasions while talking to the accused, or having a coffee with him, P would jump the fence and come to get her, or talk to her. She gave evidence that on a couple of occasions she had gone into the accused’s house with P. She said she went to the accused’s house just to visit because she was always by herself.[36]
[35] T 36.
[36] T 36 & T 37.
On one occasion, she remembered P was alone with the accused. She said she was talking to the accused over the fence and then went and had a coffee with the accused. Her twins and P were also there. She said there was some sort of electrical blackout. She could not remember the reason for doing so but recalled going back to her house while P and her twins remained with the accused. Her twins were one or two years old at the time, and were crawling but not walking. She said she left the accused alone with P and her twins for “roughly 10 minutes or so”.[37]
[37] T 38.
She recalled occasions where the accused would talk to P when she was in the garden. She said the two of them would just talk. When asked if this happened one or more than once, she said “every time he was there, hanging out the front”. She was not aware of anything unusual about the accused talking to P.[38]
Cross-examination of A
[38] T 38.
A was cross-examined as to the frequency with which P had slept at her house. She said, “Yeah, now and then, here and there, I can’t remember exactly how many times,” but said that it was many times, not only a couple of times.[39]
[39] T 38 & T 39.
She was asked whether she had heard, in 2010, about the accused being arrested for sexual offences against young boys in Loxton. She agreed that she had, and said it was “all over the news” and that everybody knew about that. She was asked whether she had been made aware in 2011 that the accused had been convicted and received a prison sentence. She responded: “I’m not sure when he actually received anything, because I hadn’t been following it, I just heard of it.” She agreed she had heard about the charges about a month or so after she moved out of her house, and some time after the visit by P to the accused’s house.[40]
[40] T 39.
In response to the suggestion that she had only ever been into the accused’s house on two occasions, she said did not remember exactly, but said that she was often at the front of her house talking to the accused. As to the suggestion that P was not with her on either of the occasions she had entered the accused’s house, A said P was with her she went inside the accused’s house.[41]
[41] T 39 & T 40.
She agreed that she went to the accused’s house on one occasion because her power had been cut off. She said there another occasion when a blackout had affected all houses in the street. She said that the blackout occurred shortly after she had gone to the accused’s house for coffee. When it was put to her that she went to the accused’s house because her power had been cut off and the accused had power; she maintained that that was separate occasion. Counsel for the accused suggested that on one of the only two times she entered the accused’s house her power had been cut off, and that P was not with her. She agreed that on the occasion her power had been cut off, she did not have P with her. She distinguished that occasion from the day there was a blackout affecting the street when she did have P and the twins with her; and the power had just gone out.[42]
[42] T 40.
When it was suggested that P had never spoken to the accused, A responded “That’s a lie.” It was put to her that there was no occasion P had been left at the accused’s house and that P had never been there; she responded: “That’s not true, that’s a lie as well.” She said that she always had the twins with her, but there was one occasion when she had both the twins and P there.
Detective Brevet Sergeant Bussenschutt
Detective Brevet Sergeant Bussenschutt investigated the allegations concerning the accused and the complainant. In the course of his duties, he took a statement from the complainant on 21 February 2013. The witness gave evidence that a report file was submitted in relation to this matter in late 2013 or early 2014 and that the accused was not arrested in relation to this matter. Other than to establish the date the complainant attended upon police, his evidence does not materially assist me in determining the issues.
Defence Evidence
The Accused
As mentioned, the accused elected to give evidence and subject himself to cross-examination. He was 55 years of age at the time of giving evidence. In 2010, he was living in Loxton. A was living next-door to him at the time. He said he had spoken with A, a few times, over the fence. He said he had given her a computer system for her children.[43]
[43] T 44.
He said A had been to his house a couple of times. He could not remember the dates. He said that the first time A visited they were sitting at the front of the house where he had a table and lounge chairs, having a coffee and talking. He said the second time was when her power was cut off, but his power was not.[44]
[44] T 44.
He gave evidence that A had two children and said one used to crawl around a fair bit and had tubes in its nose. He said the children went to his house only when she brought them over, and that was only a couple of times. He remembered one occasion she attended “with a little one” “because he was crawling around in the bark chips so she passed it to me”.[45]
[45] T 44 & T 45.
The accused said he had nothing to do with P and did not have any conversations with P. The accused said he did not see P at his aunt’s house, and did not take much notice of who A had there, or who she had in her car. He said he had not met P, whether at A’s house or elsewhere. He said to his knowledge P had never been a passenger in his cab. He said that P’s aunt had been in his house but P had never been there.[46]
[46] T 45.
The accused said on one occasion, A had attended his house, with her two children, because her power had been cut off. He offered to make her coffee. The accused said the incident described by P did not occur, and that on that day, his son J was at his house, together with two other boys. He said that on that day no one else associated with A had attended his house, until A’s mother came to his house to collect A and her children. He said that she stood at the front fence area and yelled out when she went to take them back to her place. The accused described the fence as a fence one could easily step over.[47]
[47] T 45 & T 46.
He said that P had never been to his house and that he had never met P because he could not remember him at all.[48]
Cross-examination of the Accused
[48] T 46.
In cross-examination, the accused said he thought he had lived at the address in Loxton for seven or eight months. At the time, his son J and another boy were living there, and two other boys slept over nearly every weekend. He also said another of his son’s friends who lived nearby also slept over most nights during the week.[49]
[49] T 47.
The accused said he had no recollection of an occasion where the power in the street went out. He disagreed with the proposition that that had occurred.
The accused said that he had never spoken to P. He did not remember him, and said when he was shown photographs he did not even recognise P. He disagreed that he may have had forgotten P. He was adamant that P had never been to his house, and said the only children A had brought to his house were her two children. The accused said he had never seen P at his aunt’s house.
The accused said that there was an occasion where the power at A’s house had gone off. A neighbour was at his house. The accused said A’s power was cut off because she had not paid the electricity bill. He said A came to his house and he offered to make coffee as he still had power. He rejected the suggestion that the coffee was made before the power went out. The accused disagreed that A went back to her house and left the twins and P there. He said that she did go back to her house to get cigarettes but said they had been at the front of his house at that time, and were sitting out the front smoking.[50]
[50] T 49.
The accused maintained that P had never been in his house while he was there. He denied that he had assaulted P. He said “It never happened. It’s as simple as that.” He maintained that he had never met P.[51] He said he never touched P; P had never been into his house; and he had never said anything to P.[52]
[51] T 49.
[52] T 50 & T 51.
The accused denied asking P’s mother about P’s welfare and said that the only time he had asked her about a family member he was asking about P’s father PM (who was known as Paul, not Pauly). The accused gave evidence that he had known PM years earlier. The accused said he called PM “Paul” because that was his name. The accused disagreed that he was asking about the complainant, “Pauly”.[53]
The Accused’s Son J
[53] T 49 & T 50.
The accused’s son, J, was 21 years of age at the time of giving his evidence, having been born 1 September 1993. He said that in 2010 he lived with his father, and that one of his close friends moved in at some stage.
While J was living with the accused, the accused introduced him to A. J said he attended A’s house quite regularly, every couple of days. He said A had a little boy and girl, who were young and could not walk.[54]
[54] T 54.
He said that on a few occasions A visited the house he and the accused were living in J said he had never seen a young boy about 12 or 13 years of age at the house. He said A did not, at any stage, introduce him to P. He was not aware of a person with the complainant’s name and was not aware of a person with the complainant’s name ever going to the house in which he and the accused were living.[55]
[55] T 54 & T 55.
J gave evidence in relation to an incident whilst he was at that house. He said, “I was there one day sitting in the lounge room and [A] came in knocking on my door and then my dad opened it and she said that her power got cut off and it was just her and her two little kids, like her little boy and little girl.” He said A went into the house and in relation to the period of time she was there for, he said “she was there for quite a bit and then I think it was her mother that came and picked her up.”
Cross-examination of the Accused’s son J
In late 2009, J had turned 16 years of age. He left school half way through 2010. He did not start working immediately after that.[56]
[56] T 59.
He was doing work experience for the Loxton Council. He said work experience was supposed to be for five days of the week, but he only worked two days, on Mondays and Tuesdays. J would be picked up just before 7 o’clock in the morning and would be home by about 4.30 in the afternoon.[57]
[57] T 56.
During that time he and his best friend were living with his father. He said he may have “hung around” at his house on the weekend. He also had friends who lived outside of Loxton, whom he may have gone to visit. He agreed that during that period of time, the accused drove a taxi on Friday and Saturday nights, and on Saturdays and Sundays the accused would sleep during the day. J disagreed that he would “make himself scarce” when the accused slept.[58]
[58] T 56 & T 57.
He agreed that A lived next door and had two very young children.
J agreed that if the accused was at the front of his house, A would stop him and have a chat with him. If either he or the accused were in the backyard and A was in backyard, J agreed that A would also stop and have a chat.[59]
[59] T 58.
J said he had never seen a 12-year-old boy helping A out with her babies from time to time during the day.[60]
[60] T 58.
He said that A had visited the accused’s house on a day after the power at the house had been cut off. J said A had been at the front of the house and then went into the lounge room where he was sitting.[61]
Findings
[61] T 59.
Initial Complaint
Ultimately neither counsel relied upon the evidence of the initial complaint, and counsel for the accused did not refer to the issue of initial complaint by the complainant in the trial. In any event, as I have said, I bear in mind that evidence of an initial complaint is only admitted to inform me as to the way in which the allegations first came to light, and potentially as evidence of the consistency or inconsistency of the conduct of a complainant and the reliability, or otherwise, of the complainant’s evidence.
P’s Behaviour
It is apparent that P’s mother had, to some extent, downplayed the nature of P’s behavioural problems prior to the alleged assault. I accept her evidence as to the circumstances in which she came to make an inquiry of P as to whether anything had happened to him, and accept that was prompted by her concerns about his behaviour or presentation.
Suggestion of Motive
As I have said, counsel for the accused put to the prosecution witnesses, in general terms, that in about 2010 the accused had been arrested and charged with offences of a sexual nature against a number of boys in Loxton.
During addresses, counsel for the accused submitted that there was an obvious potential motive for the complainant to fabricate the allegations. Counsel for the accused submitted that it is common knowledge that people who are the victims of crime are entitled to compensation which may well be the motive to fabricate the allegations, and for the complainant’s mother and aunt to collude. Despite the specific denial by L that she had heard about criminal injuries compensation payments being made to the victims of the accused’s earlier offending, counsel for the accused submitted that I could infer, as a possibility, that L and A colluded to induce the complainant to make a complaint against the accused.
P denied, when he was in primary school, hearing that the accused had been convicted with interfering with those boys and had been sent to prison. P said that the only time he had heard of that, was when the police mentioned it to him just after he was interviewed. P denied the suggestion that his mother and aunt that suggested to him that the incident happened. I accept P’s denial that he was aware of the accused’s prior convictions at the time he made his complaint and I accept that his evidence that the contents of his complaint were not suggest to him by anyone. I accept his evidence, and am satisfied beyond reasonable doubt that he was telling the truth.
P’s mother, L, denied the possibility that she had suggested to P that this incident had occurred, rather than P suggesting it to her. As to compensation, the following exchange occurred:
QWas there talk subsequently about the lads receiving payment under the criminal injuries compensation legislation, that is, they got some money - ”
AI didn’t hear anything about that.
Similarly I accept L’s evidence beyond reasonable doubt.
A agreed that she had heard about the accused being arrested and said that it was all over the news and that everybody knew about that. It was also put to her that the accused was convicted and received a prison sentence in 2011. She said she had not been following the story.
I bear in mind that there is no onus on the defence to prove a motive to lie. I reject, even as a possibility, the suggested motive for P, L and A to make false allegations against the accused.
Even though I reject the defence contention about such motive, and the accused’s evidence on the question of motive, even as a reasonable possibility, that does not relieve me of my responsibility to be satisfied beyond a reasonable doubt of the allegations before I can return a verdict of guilty.
As I have said, I reject the suggested motive, and find that neither P, nor L or A had any motive to make a false allegation against the accused.
Collusion
It is not for the accused to prove that concoction, collusion or contamination of evidence occurred. It is for the prosecution to prove beyond reasonable doubt that it did not occur.
In this case, the issue of collusion goes to the suggestion of motive. Counsel for the accused did not directly put to the complainant, his mother ‘L’ or his aunty ‘A’ that they had colluded in their evidence. Although the suggestion of collusion was not put to L or A, counsel for the accused submitted that if it were put to them, the witnesses would have denied it anyway.
I am satisfied beyond reasonable doubt that the prosecution has established that there was no collusion.
Sleepovers at A’s House
While there were some inconsistencies between L and A as to the frequency of sleepovers that P had at A’s house, that does not ultimately cause me any concern as to the truth of their evidence or to otherwise doubt the reliability of their evidence.
Attendance at the Accused’s House
I accept P’s evidence that he went to the accused’s house on three or four occasions. I accept A’s evidence in relation to going, on occasions with P, to the accused’s house. I reject the accused’s denial that P had ever been to his house.
I accept P’s evidence as to the description he provided of the accused’s taxi, and of being in the taxi on an occasion when it was at the accused’s house.
I accept, beyond reasonable doubt, L’s evidence that on one occasion the accused had inquired about P. At its highest that evidence serves to show no more than that the accused knew and had met P, contrary to his denials.
The evidence from the accused’s son, J, did not ultimately assist with the issue as to whether or not P had attended the accused’s house as, on the evidence, J was often absent from his house. Although J said he had been at the accused’s house on an occasion when electrical power had been cut to A’s house, that does not cause me to have any doubt that P had on the occasion of the alleged offending, attended at the accused’s house with A, and that A had gone back to her house leaving P and the very young children with the accused.
I find that there were two occasions upon which there was a power outage, one when power had been cut off at A’s house, and one when there was a blackout in the street. Whilst the evidence was somewhat confused between the two occasions, I find that on one such occasion the accused was alone with P.
Conclusion
I found the accused to be an unimpressive witness. I bear in mind the difficulty faced in endeavouring to assess a witness’s veracity by his demeanour in the somewhat unnatural environment of the court room. He lacked credibility. I disbelieve the accused’s evidence. I find that he gave blanket denials in an attempt to distance himself from the complainant whom I find he did meet on a number of occasions. I reject his denials of the specific matter alleged against him which was the basis for the charge.
Disbelieving the accused, certainly, does not establish the prosecution case. It is necessary for me to consider whether the elements of the offence constituting the count on the Information have been proved on the evidence. I am satisfied that the elements of the charge have been proved beyond reasonable doubt, on the basis of the evidence of the complainant, after careful consideration of all of the evidence.
I accept the complainant as a witness of truth. I was impressed with his evidence and the manner in which his evidence was given. He made concessions in cross-examination. He did not give the impression of engaging in speculation. He gave his evidence in a simple, direct fashion. He did not embellish. Whilst there were aspects of uncertainty given the passage of time, his evidence as to the occurrence of the sexual act committed by the accused against him was unequivocal and convincing. The action constituting the charge was clearly identified.
I accept the evidence of the complainant as to the incident constituting the charged offence. I accept that P made a complaint to his mother when she spoke to him towards the end of 2012, and accept her evidence as to the making of that complaint.
Verdict
I am left with no doubt that the specific acts alleged by the complainant occurred. Accordingly, I find that each element of the charge of aggravated indecent assault has been established beyond reasonable doubt, and find the accused guilty of the offence with which he is charged.
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