R v AJE
[2023] SADC 172
•12 December 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AJE
Criminal Trial by Judge Alone
[2023] SADC 172
Reasons for the Verdict of her Honour Judge Schammer
12 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - CROSS-ADMISSIBILITY - SIMILARITY OF ACCOUNT
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS
The accused, AJE, is charged on Information dated 9 May 2022 with five counts for offending against three of the children of his former partner, PT.
The first complainant, KD, is PT’s fourth son. It is alleged that between 10/08/2012 and 26/09/2017, when KD was aged between 5 and 10, the accused maintained an unlawful sexual relationship with KD contrary to s 50(1) of the Criminal Law Consolidation Act, 1935 (the Act) (count 1). Count 2 relates to an alleged aggravated assault committed against KD between 19/11/2016 and 26/09/2017, when KD was aged between 9 and 10.
The second complainant, AT, is PT’s daughter. It is alleged that between 01/07/2014 and 26/09/2017, when AT was aged between 4 and 7, the accused maintained an unlawful sexual relationship with her contrary to s 50(1) of the Act (count 3).
The third complainant, ISD, is PT’s third son. It is alleged that between 30/08/2014 and 26/09/2017, when ISD was aged between 8 and 11, and between 30/06/2015 and 26/09/2017, when ISD was aged between 9 and 11, that the accused had unlawful sexual intercourse with ISD contrary to s 49(1) of the Act (respectively counts 4 and 5).
The offending is alleged to have occurred at the home, or homes, where the accused lived with PT and the complainants during the course of his relationship with PT. That relationship ended in 26 September 2017, when the accused allegedly assaulted PT in the kitchen of their home.
The Court heard evidence that the accused regularly beat PT, sometimes in the presence of the complainants. In addition, the complainants gave evidence that the accused would physically discipline them by hitting them with a belt or cord, at times leaving bruises.
The offending is therefore alleged to have occurred in circumstances where the accused exercised physical control over the complainants and others in the household and where they were fearful of him.
The offending as described by the complainants, in each instance, involved brazen offending, often conducted at night, in the lounge room, while others were asleep in adjacent rooms.
Some of the alleged offending was said to have been accompanied by threats made by the accused to harm the complainant/s in the event that they either did not participate in the alleged unlawful sexual act/s and/or if they disclosed the offending to anyone.
The prosecution sought to rely on similarity of account reasoning, but not propensity reasoning.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.
At trial, it was argued that the complainants each had a motive (or motives) to lie about the alleged offending, and/or that they had colluded to make false allegations against the accused, and/or that they had discussed their allegations with each other such that their evidence was contaminated. As to each complainant, it was alleged that the evidence given by them was neither credible nor reliable, such that the Court could not be satisfied as to the accused’s guilt with respect to any count.
The accused called evidence from his sister, but exercised his right to silence and did not give evidence.
Verdict:
The accused is not guilty as to counts 1, 2 and 3.
The accused is guilty as to counts 4 and 5.
Criminal Law Consolidation Act 1935 (SA) ss 5, 20(3), 49(1), 50, 50(1), 50(4)(b), 50(12); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 9(1), 9(4), 13A(12), 13BA, 34L; Summary Offences Act 1953 (SA) s 74EB, referred to.
R v Mann [2020] SASCFC 69; JJP v R [2021] SASCA 53; R v C, CA [2013] SASCFC 137; R v Corrigan (1998) 74 SASR 545; DES v The Queen [2020] SASCFC 32; R v Sexton [2002] SASCA 73, considered.
R v AJE
[2023] SADC 172[Criminal]
Introduction
The accused, AJE, is charged on Information dated 9 May 2022 with five counts for offending against three of the children of his former partner, PT. Those counts comprise two counts of maintaining an unlawful sexual relationship with a child pursuant to s 50(1) of the Criminal Law Consolidation Act, 1935 (the Act), two counts of unlawful sexual intercourse with a person under the age of 14 years pursuant to s 49(1) of the Act and one count of aggravated assault pursuant to s 20(3) of the Act.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.
The Charges
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
AJE between the 10th day of August 2012 and the 26th day of September 2017, at Sturt, Oaklands Park and other places, maintained an unlawful sexual relationship with KD, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards him, namely:
(a)removing his pants in KD’s presence, on more than one occasion;
(b)attempting to remove KD’s pants, on more than one occasion;
(c)causing KD to perform an act of fellatio upon him;
(d)causing KD to view pornographic material, on more than one occasion;
(e)masturbating in KD’s presence; and
(f) inserting his penis into KD’s anus on more than one occasion.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
AJE between the 19th day of November 2016 and the 26th day of September 2017, at Oaklands Park, assaulted KD.
It is further alleged that AJE committed the offence knowing that KD was under the age of 12 years at the time of the offence.
Third Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
AJE between the 1st day of July 2014 and the 26th day of September 2017, at Clovelly Park and Oaklands Park and other places, maintained an unlawful sexual relationship with AT, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)kissing AT on the lips, on more than one occasion;
(b)touching AT on the bottom, on more than one occasion;
(c)inserting a finger into AT’s anus;
(d)inserting a finger into AT’s vagina;
(e)causing AT to perform an act of fellatio upon him, on more than one occasion;
(f)inserting his penis into AT’s vagina, on more than one occasion; and
(g)inserting his penis into AT’s anus.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
AJE between the 30th day of June 2014 and the 26th day of September 2017, at Oaklands Park, had sexual intercourse with ISD, a person under the age of 14 years, by inserting his penis into his anus.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
AJE between the 30th day of June 2015 and the 26th day of September 2017, at Oaklands Park, had sexual intercourse with ISD, a person under the age of 14 years, by inserting his penis into his anus.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Elements of the Charged Offences
Counts 1 and 3 - Maintaining an Unlawful Sexual Relationship with a Child
In order for a verdict of guilty to be returned to either count 1 and/or count 3, the prosecution must prove the following elements beyond reasonable doubt:
1.That the accused knowingly maintained a relationship with the complainant.[1]
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with the complainant.
3.That at the time the accused engaged in two or more unlawful sexual acts with the complainant, the complainant was a child.
4.That at the time the accused engaged in two or more unlawful sexual acts with the complainant, the accused was an adult.
[1] Noting the complainant is count 1 is KD and the complainant in count 3 is AT.
The accused’s date of birth is 15 July 1974.[2]
[2] Exhibit P29 at [1].
KD’s date of birth is 10 August 2007.[3]
[3] Exhibit P29 at [3].
AT’s date of birth is 1 July 2010.[4]
[4] Exhibit P29 at [4].
As to count 1, the alleged offending is said to have occurred between 10 August 2012 and 26 September 2017. I am satisfied that KD was a child (and under the age of 14 years) and that the accused was an adult, during the period of the alleged offending in count 1.
As to count 3, the alleged offending is said to have occurred between 1 July 2014 and 26 September 2017. I am satisfied that AT was a child (and under the age of 14 years) and that the accused was an adult, during the period of the alleged offending in count 3.
Whether there is a ‘relationship’ for the purposes of s 50(1) of the Act is a question of fact, to be decided having regard to the duration, frequency, nature and continuity of the interactions between the complainant and the accused.[5] Although the existence of a ‘relationship’ for the purposes of s 50(1) of the Act was not conceded as to either count, I am satisfied, on all of the evidence, that during the period of the alleged offending in count 1, as the domestic partner of his mother, AJE knowingly maintained a relationship with KD. Similarly I am satisfied that during the period of the alleged offending in count 3, AJE knowingly maintained a relationship with AT.
[5] R v Mann [2020] SASCFC 69 [28]-[29].
The real issue in dispute as to each count was whether, during the relationship between AJE and each complainant, any of the alleged unlawful sexual acts occurred.
An ‘unlawful sexual act’ is an act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence.[6]
[6] Section 50(12) Criminal Law Consolidation Act 1935 (CLCA).
A ‘sexual offence’ is defined to mean:[7]
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences, or
(c)a substantially similar offence against a previous enactment.
[7] Ibid.
Pursuant to s 50(4)(b) of the Act, it is not necessary for me to be satisfied of the particulars of any unlawful sexual act as if that act had been charged as a separate offence. However, I must be satisfied as to the general nature or character of those acts.
As to each of counts 1 and 3, the prosecution must prove beyond reasonable doubt the elements of the ‘sexual offences’ relied upon as rendering the alleged acts unlawful sexual acts.[8]
[8] JJP v The Queen [2021] SASCA 53 per Doyle J.
As to count 1, those offences are gross indecency,[9] aggravated indecent assault[10] and unlawful sexual intercourse.[11]
[9] Particulars (a), (d) and (e) on the Information as to count 1.
[10] Particular (b) on the Information as to count 1.
[11] Particulars (c) and (f) on the Information as to count 1.
As to count 3, those offences are aggravated indecent assault[12] and unlawful sexual intercourse.[13]
Gross Indecency
[12] Particulars (a) and (b) on the Information as to count 3.
[13] Particulars (c), (d), (e), (f) and (g) on the Information as to count 3.
The elements of the offence of gross indecency are:
1.The accused performed an act.
2.The act was intentionally performed in the presence of the complainant.
3.The act involved circumstances of gross indecency.
4.The complainant was under the age of 16 years at the time, rendering consent irrelevant.
It is a matter for me to determine whether the act performed by the accused occurred in circumstances which were grossly indecent by reference to reasonable contemporary standards. I must be satisfied that those circumstances had a sexual connotation.
Aggravated Indecent Assault
The elements of the offence of aggravated indecent assault are:
1.That the accused applied force (directly or indirectly) to the complainant.
2.The force was applied intentionally.
3.The force was accompanied by circumstances of indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation.
4.The complainant was under the age of 16 years at the time of the act, rendering consent irrelevant.
Unlawful Sexual Intercourse
The elements of the offence of unlawful sexual intercourse are:
1.That the accused had sexual intercourse with the complainant. Sexual intercourse is defined in s 5 of the Act to include any activity consisting of or involving penetration of a person’s vagina, labia majora or anus by any part of the body of another person and fellatio and cunnilingus.
2.That the complainant was under the age of 14 years at the time, rendering the issue of consent irrelevant and the act of sexual intercourse unlawful.
Count 2 – Aggravated Assault
In order for a verdict of guilty to be returned to count 2, the prosecution must prove the following elements beyond reasonable doubt:
1.The accused assaulted KD.
2.An assault includes the intentional application of force (directly or indirectly) to the victim.
3.The application of force was deliberate, not unintentional or accidental.
4.The accused acted without the consent of KD.
5.The accused must have acted unlawfully.
6.The offence is aggravated if the accused knew, at the time of the offence, that KD was under the age of 12.
Counts 4 and 5 - Unlawful Sexual Intercourse
In order for a verdict of guilty to be returned to either count 4 and/or count 5, the prosecution must prove the following elements beyond reasonable doubt:
1.That the accused had sexual intercourse with ISD. Sexual intercourse is defined in s 5 of the Act to include any activity consisting of or involving penetration of a person’s anus by any part of the body of another person.
2.That ISD was under the age of 14 years at the time, rendering the issue of consent irrelevant and the act of sexual intercourse unlawful.
Witnesses and Exhibits
The prosecution called evidence from each of the complainants.[14] In addition, evidence was called from:
1.The complainants’ mother, PT.
2.Detective Brevet Sergeant Manson (Officer Manson).
3.JH, complaint witness for ISD.[15]
4.CJ, PT’s former partner.
[14] See further discussion below as to how this evidence was led as to each complainant.
[15] At the commencement of day 5 of trial, and after KD and AT had given their evidence, I was informed by the prosecutor that I had presided over a criminal trial by judge alone involving JH and had returned guilty verdicts. JH had not given evidence during that trial and therefore I was not required to make findings of credit with respect to any such evidence at that time. Both the prosecutor and counsel for the accused advised that they had no opposition to the trial continuing before me, notwithstanding this. Balancing all relevant matters, including what I was told by counsel as to the nature of the evidence to be given by JH, the fact the accused was in custody solely on this matter and the trial had previously been adjourned twice, such that all parties were keen to proceed, I determined that it was appropriate for me to continue to hear the matter. See discussion at T 162.1-164.31.
The prosecution tendered numerous exhibits including:
·Statement of Agreed Facts.[16]
·An edited audio-visual recording of an interview conducted between Detective Brevet Sergeant Zacher (Officer Zacher) and KD on 25 August 2020 (the first KD interview).[17]
·An edited audio-visual recording of an interview conducted between Officer Zacher and KD on 20 October 2021 (the second KD interview).[18]
·An edited audio-visual recording of an interview conducted between Senior Constable Castle (Officer Castle) and AT on 10 November 2021 (the first AT interview).[19]
·An edited audio-visual recording of an interview conducted between Officer Castle and AT on 14 November 2021 (the second AT interview).[20]
·An edited audio-visual recording of an interview conducted between Officer Castle and AT on 24 February 2022 (the third AT interview).[21]
·An audio-visual recording of an interview conducted between Detective Brevet Sergeant Sweetman and AT on 21 September 2019 (the Sweetman interview).[22] This exhibit was tendered pursuant to s 34L of the Evidence Act 1929 (EA) and not for the truth of its contents.
·A USB containing the record of interview conducted between the police and the accused on 20 October 2020.[23]
[16] Exhibit P29.
[17] Exhibit P1.
[18] Exhibit P5.
[19] Exhibit P9.
[20] Exhibit P12.
[21] Exhibit P15.
[22] Exhibit P17.
[23] Exhibit P22.
Edited transcripts of the aforementioned recordings were provided.[24] When referring to the evidence contained in those recordings throughout these Reasons, I will refer to the relevant page and/or paragraph number contained within the transcript of the recording, for ease of reference.
[24] MFI P2, MFIP6, MFIP10, MFIP13, MFIP16, MFIP18 and MFIP23.
The accused exercised his right not to give evidence. He called evidence from his sister, OA.
Legal Directions
General
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit the offence(s) as charged.
As to each count, the accused is presumed by law to be innocent of the charge unless and until the evidence that I accept satisfies me that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice.
There are five counts on the Information. I must assess these counts separately and only take into account the evidence that is relevant and admissible to the count under consideration.
As to each count, it is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of an offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that offence. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) proffered by him.
In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. As to each count, considered separately, if I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, then I must find the charge has not been proven beyond reasonable doubt.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
PT gave her evidence via audio-visual link from outside of the Court room. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.[25]
[25] Section 13A(12) of the Evidence Act 1929 (EA).
The complainants’ older brother, BD, was not called to give evidence. There was evidence led that he shared a room with KD and ISD during some of the period of the alleged offending, including at the Bombay Street house and as such, he may have been able to provide evidence to the Court which was relevant to the issues in dispute. I must not speculate about the nature of any evidence I have not heard. I simply do not know what evidence may have been given by any absent witness. I must decide the case only on the evidence before me.
The accused elected not to give evidence. As a matter of law there can be no criticism of the accused for doing that. The accused has a right to decline to give evidence and I must not draw any inference adverse to him or the case he has put forward because he has exercised that right. The accused’s silence in this Court does not constitute an admission against him and it cannot be used to fill any gaps in the evidence tendered by the prosecution. His silence cannot be used in assessing whether the prosecution has proven the elements of any offence beyond reasonable doubt.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter.
KD’s Evidence
The first KD interview was conducted on 25 August 2020, shortly after KD turned 13. The second KD interview was conducted on 20 October 2021, when KD was aged 14 years and 2 months. Audio-visual recordings were made of each of those records of interview. There is no dispute that the interviews were made in accordance with s 74EB of the Summary Offences Act 1953 (SOA).
The audio-visual recordings of the first and second KD interviews were admitted into evidence pursuant to s 13BA of the EA.[26] I must not draw any inference adverse to the accused because of this, nor allow the admission of the evidence in that form to influence the weight given to that evidence.[27]
[26] Pursuant to orders made by Judge Press on 12 May 2022.
[27] Section 13A(12) of the EA.
Permission was granted for the prosecution to lead further evidence from KD by way of evidence-in-chief and re-examination and for the accused to cross-examine KD, on various specific topics.
KD gave his evidence via audio-visual link from outside of the Court room. He was accompanied by a court companion; his evidence was recorded and the Court was closed during his evidence. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.[28]
[28] Section 13A(12) of the EA.
Insofar as was necessary, permission was sought, and granted, for evidence to be led pursuant to s 34L of the EA as to KD’s sexual activities before and after the alleged offending, the Court being satisfied that such evidence was of substantive probative value and would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of KD and that its admission was in the interests of justice.[29]
[29] This evidence included allegations made by KD during the first interview that he had been sexually abused by his older brother, BD. This evidence was relevant to potentially explain why and how KD had knowledge of various sexual acts.
At the time of giving evidence, KD was aged (nearly) 15 years and 10 months. KD’s capacity to give sworn evidence was presumed, in accordance with s 9(1) of the EA.
AT’s Evidence
Both the first and second AT interviews was conducted in November 2021, when AT was aged 11 years and 4 months. The third AT interview was conducted on 24 February 2022, when KD was aged 11 years and 7 months. Audio-visual recordings were made of each of those records of interview.
After hearing argument, the Court determined those interviews were made in accordance with s 74EB of the SOA and admitted audio-visual recordings of those (edited) interviews into evidence pursuant to s 13BA of the EA.[30] I must not draw any inference adverse to the accused because of this, nor allow the admission of the evidence in that form to influence the weight given to that evidence.[31]
[30] Pursuant to orders made by Judge Press on 12 May 2022.
[31] Section 13A(12) of the EA.
Permission was granted for the prosecution to lead further evidence from AT by way of evidence-in-chief and re-examination and for the accused to cross-examine AT, on various specific topics.
At the time of giving her evidence, AT was aged 12 years and 11 months. After carefully questioning AT, I was not satisfied that she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. However, I was satisfied that AT understood the difference between the truth and a lie. After telling AT that it was important to tell the truth, she indicated that she would tell the truth. I was therefore satisfied that she had the capacity to give unsworn evidence.
AT’s evidence is critical to the prosecution case as to count 3. The accused cannot be found guilty of count 3 unless I accept AT’s evidence beyond reasonable doubt. Her evidence was unsworn. I remind myself as to the reason the evidence was unsworn and warn myself of the need for caution in determining whether to accept this evidence and the weight to be given to it.[32] I have carefully scrutinised her evidence and warn myself that I must not act on it unless I am satisfied as to its truth and accuracy.
[32] Section 9(4) of the EA.
AT gave her evidence via audio-visual link from outside of the Court room. She was accompanied by a court companion; her evidence was recorded and the Court was closed during her evidence. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.[33]
[33] Section 13A(12) of the EA.
Insofar as was necessary, permission was sought, and granted, for evidence to be led pursuant to s 34L of the EA as to AT’s sexual activities before and after the alleged offending, the Court being satisfied that such evidence was of substantive probative value and would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of AT and that its admission was in the interests of justice.
ISD’s Evidence
ISD gave his evidence via audio-visual link from outside of the courtroom. He was accompanied by a court companion; his evidence was recorded and the Court was closed during his evidence. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.[34]
[34] Section 13A(12) of the EA.
Insofar as was necessary, permission was sought, and granted, for evidence to be led pursuant to s 34L of the EA as to ISD’s sexual activities before and after the alleged offending, the Court being satisfied that such evidence was of substantive probative value and would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of ISD and that its admission was in the interests of justice.
Complaint Evidence
KD gave evidence that the first person he told about the alleged offending was CJ and that this had occurred during a conversation with CJ in his mum’s Holden Jackaroo outside of CJ’s house. CJ gave evidence that KD told him about the alleged offending committed by the accused against him when they were in the kitchen together at his house in Crittenden Road, Smithfield Plains, when KD’s half-sister, IT, was about six months old.
KD gave evidence that at a time when the accused was still living with the at the Bombay Street address, that is, before 27 September 2017, AT came to him crying one day and told him that the accused kept asking her to suck his penis. Although AT could not recall this conversation, this was relied upon by the prosecution as evidence of AT’s initial complaint.
AT gave evidence that the first person she told about the alleged offending was CJ. CJ also gave evidence that AT told him about the alleged offending committed by the accused against her when they were in her bedroom at his house in Crittenden Road, Smithfield Plains on an occasion prior to KD disclosing to him that the accused had offended against him. The details of the alleged offending disclosed by AT to CJ were more extensive than that as said to have been told by her to KD, meaning this evidence was also led as evidence of initial complaint.
ISD gave evidence that the first person he told about the alleged offending was JH and that shortly thereafter he also told PT. JH gave evidence that ISD told him that the accused had sexually assaulted him (or raped him), but did not go into detail, when they were sitting in a Holden Jackaroo outside his former house in Elizabeth North, at a time when CJ, PT and PT’s children were living together at CJ’s house in Crittenden Road, Smithfield Plains.
PT gave evidence of a conversation she had with ISD, after he had disclosed the alleged offending to JH, during which conversation ISD disclosed to her that the accused had forcibly inserted his penis in ISD’s anus, being an elaboration of ISD’s complaint to JH.
Evidence of the initial complaints made by KD, AT and ISD, is an exception to the rule which prohibits proof of prior, out of court, consistent statements.
Complaint evidence is admitted to inform the trier of fact as to how the allegation, in each instance, first came to light and as evidence of the degree of consistency of conduct of each complainant. It is relevant therefore to an assessment of the reliability and credibility of each complainant.
Importantly, complaint evidence is not admitted as evidence of the truth of what was alleged and cannot be used as some form of independent evidence to prove what happened, as, only the evidence of each complainant as to the allegations of the specific offending against them, is able to prove that.
There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is for me to determine the significance (if any) of the evidence in the circumstances of this case with respect to each complainant.
Forensic Disadvantage
The accused was arrested for the alleged offending against KD on 20 October 2020. There was no evidence as to when he was arrested for the alleged offending against AT and ISD, but this was sometime thereafter.
KD’s evidence and AT’s evidence, in particular, lacked specific detail as to precisely when the alleged unlawful sexual acts occurred, and ISD was only able to provide his approximate age at the time of each alleged offence against him. However, all of the alleged offending is said to have occurred prior to 26 September 2017, that is, more than three years before the date of the accused’s arrest and more than five years before the commencement of the trial in June 2023.
As such, there was a not insignificant period of delay between the alleged offending and the accused’s arrest, and the trial.
Had a timely complaint been made, by each complainant, in each instance of alleged offending, the accused may have been able to provide a relatively contemporaneous recollection of the nature of his interactions with that complainant at the time of any alleged offending.
The house where the complainants lived with the accused in Bombay Street, Oaklands Park, was demolished sometime after 15 March 2018. Had a timely complaint or complaints been made, evidence potentially could have been obtained as to the window(s) and doors in the bedroom occupied by KD and ISD at that house, to determine, for example, whether there was any mesh or screen on that window (or windows) that was capable of being removed from inside the house and whether there was a lock on that bedroom door. Evidence could have been obtained as to the nature of the flooring in the various rooms at that house, and, if that flooring creaked loudly when walked upon. The fact that house has been demolished means the accused has potentially been deprived of obtaining evidence to refute various aspects of the allegations which relate to the physical features of that house.
Further, insofar as any of the complainants alleged the accused had penetrated them, these allegations, if made contemporaneously, may have resulted in medical examination of that complainant at a time when such examination may have assisted in determining the potential veracity of such allegations.
In addition, AT’s evidence, in particular, lacked specificity, context and detail as to the occasions said to comprise the alleged unlawful sexual acts, making it difficult for the accused to respond to the allegations.
I accept that in these circumstances, the accused has been deprived of the opportunity to properly identify the occasions of the alleged offending, to defend the allegations other than by way of a bare denial and to fully test each complainant’s reliability and credibility by reference to the surrounding circumstances of the alleged acts.
I have taken these forensic disadvantages into account when scrutinising the evidence and in assessing whether the prosecution has proved each element of the offences as charged beyond reasonable doubt.
Discreditable Conduct
Discreditable Conduct Notice dated 10 March 2022
The Prosecution filed a Notice of Intention to Adduce Discreditable Conduct at trial whereby it advised of an intention to use the evidence of each complainant of the alleged offending against them, in proof of the offending alleged by the other complainants, for purposes which relied upon propensity reasoning.
The accused disputed that the evidence of each complainant was cross admissible for such purposes.
However, notwithstanding there are some differences in the accounts of each complainant, the accused did not dispute that the evidence of each complainant as to the charged sexual offending was relevant and cross admissible in proof of all such counts for a permissible purpose which did not rely on propensity reasoning, namely improbability or similarity of account reasoning.[35] Indeed, a position advanced at trial by the accused was that the complainants had colluded and concocted the allegations, in order to ensure the accused was removed from their and their mother’s lives.
[35] R v C, CA [2013] SASCFC 137 at [57]-[58] and [65] per Kourakis CJ.
At trial, the prosecution disavowed any reliance on the evidence as being cross admissible for any use which relied on a particular propensity or disposition of the accused as circumstantial evidence of a fact in issue. The prosecution sought only to rely on the evidence of each complainant as to the alleged sexual offending against them, vis a vis the other counts of sexual offending, for improbability or similarity of account purposes.
I am satisfied that the probative value of the evidence outweighs any prejudicial effect and that the permissible use can be kept sufficiently separate and distinct from any impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.
If I am satisfied that the accounts of the alleged offending as given by KD, AT and ISD are so similar that they could not have been independently imagined or fabricated, unless they had colluded between the two of them or had spoken to each other such that their version of events became contaminated, then I can use those similarities when considering whether there is a reasonable possibility that one or more of them are mistaken about the alleged offending or simply making it up.
However, I must not use this evidence to reason that the accused is more likely to have committed any of the offences because of the multiplicity of allegations and complainants. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would have committed the offences and therefore he is more likely to have committed any or all of the offences.
Uncharged Acts
In the second KD interview, KD gave evidence that there were times when he used self-defence successfully against the accused to prevent him from hitting him.[36]
[36] Second KD interview lines 343-350.
Insofar as this evidence is, in fact, evidence of uncharged acts and therefore evidence of discreditable conduct, the evidence was relevant and admissible for a permissible non propensity purpose, namely, to ensure the offending was considered in the full context of the accused’s interactions with KD.
If I accept this evidence, I can use this evidence for this purpose. However, I must not reason that because the accused engaged in this conduct, he is more likely to have committed any of the alleged offending, nor must I simply reason, because of such conduct, that the accused is a person of bad character and therefore the type of person who would offend in the manner as charged.
AT’s evidence included evidence of certain uncharged acts which comprised discreditable conduct evidence. This included:
·evidence given in the first AT interview, that the accused ‘kept telling me to touch his penis’.[37]
·evidence given in the first AT interview that the accused ‘kept telling me like to suck his privates’.[38]
·evidence given during the third interview that the accused would touch her under her clothing and, specifically, touch her vagina.[39]
[37] First AT interview line 34.
[38] First AT interview lines 50 and 308.
[39] Third AT interview lines 43-54 ; lines 71-82.
This evidence was led without objection.
Insofar as this evidence is, in fact, evidence of uncharged acts, rather than evidence in support of the alleged unlawful sexual acts as particularised at paragraph (b) of count 3 on the Information, the evidence was relevant and admissible for a permissible non propensity purpose, namely, to ensure the offending was considered in the full context of the accused’s interactions with AT.
If I accept this evidence, I can use this evidence for this purpose. However, I must not reason that because the accused engaged in this conduct, he is more likely to have committed any of the alleged offending, nor must I simply reason, because of such conduct, that the accused is a person of bad character and therefore the type of person who would offend in the manner as charged.
ISD gave evidence that immediately prior to the offending charged as count 5, the accused masturbated in front of him.[40] Insofar as this evidence is, in fact, evidence of an uncharged act, rather than evidence in support of count 5 on the Information, the evidence was relevant and admissible for a permissible non propensity purpose, namely, to ensure the offending was considered in the full context of the accused’s interactions with ISD.
[40] T 185.6; T 185.19-29.
Insofar as this evidence is, in fact, evidence of uncharged acts, rather than evidence of the circumstances of and incidental to count 5 on the Information, the evidence was relevant and admissible for a permissible non propensity purpose, namely, to ensure the alleged offending was considered in its full context. If I accept this evidence, I can use this evidence for this purpose. However, I must not reason that because the accused engaged in this conduct, he is more likely to have committed any of the alleged offending, nor must I simply reason, because of such conduct, that the accused is a person of bad character and therefore the type of person who would offend in the manner as charged.
Further, I remind myself, even if I am satisfied beyond reasonable doubt that any of these alleged uncharged acts occurred, I can only find the accused guilty of any charge, if the prosecution has proved the specific elements of that charge beyond reasonable doubt.
Other Discreditable Conduct Evidence
In the accused’s record of interview, mention is made of the fact the accused was also under arrest for other offending, for which the charge sergeant was not inclined to grant police bail. This is evidence of discreditable conduct. I am not satisfied of the relevance of this evidence, or if, relevant, that the probative value of this evidence outweighs its prejudicial effect. The evidence is not admissible and I have not relied upon it.
KD, AT and ISD all gave evidence that the accused was physically violent towards them. KD also gave evidence that the accused was physically violent towards ISD. Such evidence, save for that given by KD relating to the circumstances of the alleged aggravated assault comprising count 2, is evidence of discreditable conduct.
This evidence was led without objection.
This evidence was relevant and admissible for permissible non propensity purposes, namely, to demonstrate the nature of the relationship each complainant had with the accused, to show the context in which the alleged offending occurred and to demonstrate the control the accused exerted over each complainant and the household in general. The evidence was relevant and admissible to explain why each complainant was fearful of the accused and how and why he was empowered to offend against each complainant, without fear of detection or report. In the case of KD and ISD,[41] they made no complaint of the alleged offending to anyone until after the accused was no longer in a relationship with their mother.
[41] Noting that AT’s evidence was also to the effect that did not tell anyone about the offending until after the accused was arrested and no longer in her mother’s life.
KD, AT and ISD all gave evidence that the accused was physically violent towards their mother, PT and in particular, on an occasion shortly prior to him being arrested and his relationship with PT ending. This evidence was relevant and admissible to show the context in which the alleged offending occurred and the control the accused exerted over the household in general. It was also relevant and admissible to provide a motive for the complainants (or any one of them) to lie about the allegations to prevent the accused from returning to their mother’s life. The Court also heard evidence that the accused had spent periods of time in custody, being relevant and admissible for this same permissible non propensity purpose relating to a potential motive for the complainants to lie about the alleged abuse.
PT gave evidence that the accused would physically discipline the children by hitting them with a belt or with his hand. She said he did so not only when the children were naughty but at other times. PT also gave evidence that the accused was physically violent towards her, that he had threatened to kill her and the children and that an Intervention Order was imposed for her protection against him. She gave evidence that the accused regularly breached that Intervention Order. She also gave evidence that she had dropped various allegations she had made against him because he had threatened her.
PT’s evidence on these issues was relevant and admissible for several permissible non propensity purposes namely as to the context in which the alleged offending occurred and to demonstrate the control the accused exerted over each complainant and the household in general. It was relevant and admissible to explain how and why the accused was empowered to offend against each complainant and as to the motive for the complainants (or any one of them) to lie about the allegations to prevent the accused returning to PT’s life.
PT gave evidence that the accused forced her to watch pornography, that he held her by the arms and legs and said she had to watch it or he would beat her. This evidence was initially elicited in cross-examination and further elicited in re-examination. The evidence that the accused and PT watched pornography together was relevant and admissible for a non-propensity purpose, namely whether KD or ISD may have been exposed to pornography by watching it, at times unknown to the accused, from other rooms, when the accused and PT were watching pornography together. The evidence PT gave as to the accused’s physical violence towards her was relevant and admissible for the permissible non propensity purposes outlined in paragraph 96 herein.
PT gave evidence that the accused tried to sleep with his sister, OA. OA gave evidence denying this. This evidence was elicited unexpectedly in cross-examination. This is evidence of discreditable conduct. The only possible relevance of this evidence is as to PT’s credibility and reliability. It is arguable that the evidence was inadmissible as its probative value does not outweigh any prejudicial effect it may have on the accused. Insofar as it is admissible, it must only be used for the permissible purpose identified.
AT gave evidence that the accused had taught her and her siblings how to smoke and had told them to smoke, and if they did not, they and their mother would get hurt. This evidence was led without objection as it was relevant to the determination of a fact in issue, namely whether the first time AT (and KD) disclosed the offending to CJ was when he caught them smoking. This is relevant to other issues such as the potential for contamination of the accounts of KD and AT, whether there is a potential motive for them to lie about the offending (to not get into trouble for smoking) and generally as to issues of both the credibility and reliability of the evidence given by AT and KD. It is permissible for the evidence to be used for these limited purposes. The alleged threats made by the accused are also relevant as to the context in which the alleged offending occurred and to demonstrate the control the accused exerted over the complainants.
If I accept some or all of the discreditable conduct evidence, I must only use that evidence for the permissible purpose or purposes as specified. I must not use that evidence to reason that the accused is more likely to have committed any of the offences because of this conduct. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would commit any of the alleged offences.
If any evidence of the uncharged acts and/or discreditable conduct is essential to my process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted, are established beyond reasonable doubt.
Lies
The prosecutor submitted that what the accused said during his record of interview that KD had got elbowed once when play fighting, in response to a question as to whether he had ever punched KD in the face was completely at odds with all of the other evidence.[42]
[42] MFI P23 lines 101-102.
Insofar as it may be suggested that the accused lied during that record of interview, I remind myself that whether the accused has told a lie or lies is a matter for me to determine. If I am satisfied the accused has lied, this is relevant and can be used in my assessment of the accused’s credibility. However, I cannot use this as evidence of his guilt. If I find the accused has lied, it does not add to the prosecution case. It remains for me to determine, having regard to all of the evidence, whether the evidence is sufficient to satisfy me beyond reasonable doubt as to the accused’s guilt.
Motive to Lie
There was evidence before the Court that prior to KD and ISD disclosing the alleged abuse perpetrated upon them by the accused, AT had complained about both KD and ISD sexually abusing her.
Counsel for the accused submitted that as such, both KD and ISD had a motive to lie about the alleged offending, that is, to avoid getting into trouble for the sexual acts AT had accused them of perpetrating on her.
Further, as stated, there was evidence before the Court that the accused was physically violent towards PT and to the complainants. In addition, there was evidence that PT had remained in a relationship with the accused after an Intervention Order was put in place to protect her from his violence. Counsel for the accused submitted that each of the complainants had a motive to lie about the allegations to ensure that for once and all, PT would end the relationship with the accused, meaning he was no longer in her life or that of the complainants.
I must take these arguments into account, and the evidence in support of them when assessing each complainant’s evidence.
However, if I reject this submission, as to any complainant, I remind myself that there is no onus on the accused to prove that any of the complainants had a reason to make false allegations against him.
Further, that does not the mean the complainant (or complainants) are telling the truth. There may be many reasons why a witness may lie. I must not treat any of the complainants’ evidence as being any more credible or believable just because there is no evidence to provide a reason for why he or she may be lying. I must carefully consider all of the evidence to determine whether I am satisfied as to credibility and reliability of each complainant, considered separately.
Chronology
In order to understand the allegations, and the context in which they were made, it is important to make findings of fact on matters which were either agreed, or not seriously in dispute. Those matters relate specifically to the complainants’ family circumstances, where they were living from time to time and relevant dates relating to the relationship between PT and the accused.
I make the following relevant findings of fact:
1.PT is the mother of six children including each of the complainants. Those children are:[43]
[43] T 240.37-241.37.
·AD (DOB: 07/01/2002)
·BD (DOB: 10/02/2003)
·ISD (DOB: 30/06/2006)
·KD (DOB: 10/08/2007)
·AT (DOB: 01/07/2010)
·IT (DOB: 24/05/2019).
2.The accused is not the father of any of PT’s children. The accused and PT met through PT’s former partner, BD, in about 2006.[44]
[44] T 242.17-23.
3.The accused and PT commenced a relationship sometime during 2013, when PT was living in emergency accommodation with the three complainants and her second oldest son, BD.[45] ISD turned 7 on 30 June 2013, KD turned 6 on 10 August 2013 and AT turned 3 on 1 July 2013.
[45] T 242.5-10; T 243.21-23; T 245.8-13.
4.From 19 September 2013 to 25 September 2013, the accused was in custody in South Australia.[46]
[46] Exhibit P29 at [28.1].
5.From 18 December 2013 to 16 May 2014, the accused was in custody in South Australia.[47]
[47] Exhibit P29 at [28.2].
6.The accused and PT started living together when PT, BD and the complainants were living at a house in Midera Avenue, Edwardstown.[48] It was an agreed fact that Housing SA Authority Records record PT as living at this address from 14 June 2014 to 20 June 2015.[49] I find that the accused started living with PT (and therefore with the complainants) no earlier than 14 June 2014. At this time, ISD was aged 7 years and 11 months, KD was aged 6 years and 10 months and AT was aged 3 years and 11 months.
[48] T 245.14-17.
[49] Exhibit P29 at [17].
7.On 23 October 2014, the Adelaide Magistrates Court confirmed an Intervention Order against the accused for the protection of PT. The terms of the order prohibited the accused from assaulting, threatening, harassing or intimidating PT, BD and the complainants, but did not prevent him from having contact with them.[50]
[50] Exhibit P29 at [29].
8.It was an agreed fact that Housing SA Authority Records record PT as living at 25/29 Parkmore Avenue, Sturt from 24 June 2015 to 14 November 2016.[51] This house was referred to by the various complainants as either the ‘Parkmore’ or the ‘Sturt’ house. This was a two-storey house, which PT and the family were forced to leave after a fire. I am satisfied the fire occurred in November 2016. At the time of the fire, ISD was aged 10 years and 4 months, KD was aged 9 years and 3 months and AT was aged 6 years and 4 months.
[51] Exhibit P29 at [19].
9.From 27 July 2015 to 19 August 2015, that is, for some of the period when the complainants were living at the Sturt house, the accused was in custody in South Australia.[52]
[52] Exhibit P29 at [28.3].
10.It was an agreed fact that Housing SA Authority Records record PT as living at 16 Bombay Street, Oaklands Park from 19 November 2016 to March 2018.[53] This house was referred to by the various complainants as either the ‘Bombay Street’ house or the ‘Oaklands Park’ house and is depicted in the photographs tendered as Exhibit P25. The photographs depict a trampoline in the front yard, consistent with KD’s evidence. I am satisfied therefore that PT, the complainants and the accused first started living at the Bombay Street house in November 2016.
[53] Exhibit P29 at [21].
11.On 27 September 2017, the accused was arrested and remanded in custody for the offences of Breaching an Intervention Order and Aggravated Assault. Those charges arose from an incident in the kitchen of the Bombay Street house on 26 September 2017, when the accused allegedly threw a mug at PT and further assaulted her.[54]
[54] Exhibit P29 at [28.4] and [31].
12.From 27 September 2017 to 8 March 2018, the accused was in custody in South Australia.[55]
[55] Exhibit P29 at [28.4].
13.On 8 March 2018 the Adelaide Magistrates Court varied the terms of the Intervention Order so as to prohibit the accused from having any contact with PT, BD and the complainants.[56] That same day, the accused was convicted of breaching the Intervention Order but the aggravated assault charge was withdrawn.[57]
[56] Exhibit P29 at [30].
[57] Exhibit P29 at [31].
14.It was agreed as follows:[58]
[58] Exhibit P29 at [32]-[33].
32.On or around 15 March 2018 police had cause to attend at the home address of AT. Upon attendance police spoke with various people including AT and KD. AT told police the following:
32.1 At some point before Christmas, she had been in the pool in her back yard at 16 Bombay Street, OAKLANDS PARK with her brothers, KD and ISD and the neighbour PC who was 15 years old. Her brothers had gone inside to get icy poles when she was left alone in the pool with PC. She stated they were both sitting cross legged next to each other and PC kept tugging on her arm pulling her towards him. PC has put his hands down the front of her pants and has rubbed her private parts.
32.2 On the same day, she had been in the back yard playing at 20 Bombay Street, OAKLANDS PARK with the children that live at this address, H and D, her brothers, KD and ISD and the neighbour PC. She stated she was alone with PC in the cubby when she was standing up and he was sitting down. She has tried to leave the cubby but PC has stopped her and has tried to pull her pants down. PC has put his hand down the front of her pants and touched her private parts. She has then left the cubby via the slide.
32.3 She states on another occasion last year before Christmas, she had been in her back yard at 16 Bombay Street, OAKLANDS PARK with her brothers, KD and ISD and the neighbour PC. She was in the pool with PC when he has pulled his pants down, exposing his penis and said to her ‘Suck my ‘private parts”. Her Mother has seen this and told PC to leave.
33.KD told police the following:
33.1 He stated that this incident occurred about in the Christmas School holidays of 2017 about four weeks after PC had moved into the house across the street. He stated that he was present in the rear yard of their home address, 16 Bombay Street, OAKLANDS PARK with his brother ISD, his sister AT, PC’s brother R and PC. He stated PC and R were in a wading pool and ISD and R were on the roof of the house. R went home and he had gone inside to get some ice cream. When he returned he stood near the gate and looked through a gap and he saw PC pulling AT’s legs so that she was closer to him and heard AT say ‘Stop it’. He stated that AT got out of the pool and ran to him and stated that PC had fingered her. He did not witness this act.
33.2 He stated that the following occurred in the cubby house at 20 Bombay Street, OAKLANDS PARK about a week after the first incident and it was near Christmas. He was in the rear yard initially in the cubby house with PC building a fort. AT and her friend, that lives at 20 Bombay Street, H, came outside into the rear yard. He then went onto the swings with H and AT went into the Cubby house where PC was. After a while he went into the Cubby house with PC and AT and he sat next to PC. AT has gone to leave the Cubby house via the slide and PC has put his hand down the back of AT’s jeans and fingered her in the bum. AT said ‘Don’t it’s gross’. When this has happened, he has slapped PC’s arm and told him that it was wrong to which PC replied that AT was his girlfriend.
15.It was an agreed fact that Housing SA Authority Records record PT as living at 64 Crittenden Road, Smithfield Plains from 14 July 2018 (no end date specified).[59] PT gave evidence she moved to that house, being a house where CJ lived, when she found out she was pregnant with IT.[60] I find that PT and the complainants commenced living at the Crittenden Road address in July 2018.
16.IT was born on 24 May 2019. IT is the daughter of PT and CJ.
17.On 21 May 2019, three days before IT was born, Officer Sweetman conducted an interview with AT. During that interview, AT stated that she had been sexually abused by ISD, KD and a neighbour, PC. She was asked, ‘Has anything like this happened to you by anyone else?’, to which she responded, ‘...it’s only [PC]…[PC] done it first…then it was [ISD], then it was [KD], then that’s all I can remember’.[61]
18.On 25 August 2020, KD gave his first prescribed interview to police.
19.On 20 October 2020, the accused was arrested and interviewed by police for alleged sexual offending and aggravated assault against KD.[62]
20.On 10 November 2021, AT gave her first prescribed interview to police.
KD’s Evidence
[59] Exhibit P29 at [22].
[60] T 247.4-13.
[61] MFI P18 at [278]-[281].
[62] MFI P23 at [11]-[15] and [61].
As previously stated, the audio-visual record, appropriately edited, of the first and second interviews conducted with KD, was admitted into evidence and comprised part of KD’s evidence-in-chief. KD gave further sworn evidence-in-chief, under cross-examination and by way of re-examination.
General
KD gave evidence that he first met the accused when he and his family were living at his Nan and Pop’s house in Rostrevor, after they had just got back from Melbourne. [63] He said the family lived there before they moved to the ‘Daws Road house’.[64] The Daws Road house was the first house he ever lived in with the accused and he said that he, BD, ISD, AT, his mother and the accused all moved in to that house together.[65]
[63] Second KD interview lines 73-78.
[64] Although not the subject of any formal agreement, there is no dispute that this is the house at Midera Avenue, Edwardstown, just off Daws Road.
[65] Second KD interview lines 51-60.
KD said they lived at the Daws Road house for about four months.[66] He said he was aged five when he was living at the Daws Road house and that he remembered this because they were living there when he first started school, being Year 1 at Clovelly Park Primary School.[67]
[66] Second KD interview line 48.
[67] Second KD interview lines 64-72.
KD gave evidence that they all then moved to a house at ‘8 or 9 Sturt Road’.[68] He said they lived there for about two years,[69] but that they left that house when the ‘laundry set on fire’.[70] As to whether he remembered what year or years he was in at school when he lived at Sturt Road, he said:[71]
Sturt Road I would’ve done Year 2 and 3 I think like it would’ve been the rest of Year 1 and 2.
[68] Although not the subject of any formal agreement, there is no dispute and I find that this is a reference to the house at 25/29 Parkmore Avenue, Sturt, just off Sturt Road.
[69] Second KD interview line 48.
[70] Second KD interview lines 141-142.
[71] Second KD interview line 138.
KD drew a plan of the lounge room of the Sturt Road house during the Second KD interview, which was tendered as Exhibit P7.
KD said that the family (and the accused) then all moved to a house at 16 Bombay Street, where they lived for ‘three years and a few months’.[72] As to how old he was when they moved into the Bombay Street house, he said he would have been aged seven and he remembered that because ‘when we were on Daws Road I was five so, and that was two years since like before I moved to Sturt Road’:[73] He said he did Years 3, 4 and 5 at Clovelly Park Primary School when they were living at Bombay Street. [74]
[72] Second KD interview lines 50-54.
[73] Second KD interview lines 146-148.
[74] Second KD interview line 140.
KD drew a plan of the lounge room at Bombay Street during the first KD interview, which was tendered as Exhibit P3. He also drew a floorplan of the house at Bombay Street during the second KD interview, which was tendered as Exhibit P8. KD said that he and ISD shared a bunk bed at Bombay Street and his older brother, BD, also slept in the same room.[75] He said AT had her own room, and that the accused either shared a bed with his mother or slept on the couch in the lounge room.[76]
[75] Second KD interview lines 174-178.
[76] Second KD interview lines 179-180.
KD said that his mother and the accused broke up when the family was still living at the Bombay Street house.[77] He described the accused and his mother having an argument over cigarettes in the kitchen, during which the accused hit his mother and threw her across in the kitchen into a cupboard. He said the police were called but the accused had left and they eventually found him a few days later near the Marion Shopping Centre. He said the accused had not come back to the use after that, but they had seen him when he got out of prison when he was going into Centrelink as they were leaving. He said the accused tried to speak to his mum but they all ignored him, kept walking and got their Pop to come and pick them up. [78]
[77] Second KD interview lines 183-184.
[78] Second KD interview lines 186-188.
KD said he had not seen the accused since then and that he was ‘glad that happened’.[79]
Physical Violence towards him/his siblings by Accused[80]
[79] Second KD interview lines 189-194.
[80] Not being the subject of any charged offence.
KD gave evidence that the accused would ‘always hit me with belts and electric cords and stuff and then he would make us go to school in pants on hot days’.[81] He said the accused hit him with a belt ‘nearly every day’.[82] He described this as a big, leather belt with a big metal buckle, that the accused kept on the arm of the couch he sat on at the Bombay Street house.[83]
[81] First KD interview line 198.
[82] T 49.27-29.
[83] T 49.30-50.2.
KD was able to recall one such occasion, which was when he and the accused were in the lounge room alone and he asked the accused if he could play the Play Station. He said the accused angrily said no, hit him ‘pretty hard’ on the upper back with the belt and told him to go back to his room.[84] This had left a bruise. He said that, in his mind, he had not done anything else that caused the accused to hit him with the belt.[85]
[84] T 50.3-22.
[85] T 50.38-51.2.
He could not recall details of any other occasions when the accused had hit him with a belt.[86] However, he said the accused would use the belt to hit him on his arm, legs and upper back, leaving bruises and marks.[87]
[86] T 51.8-11.
[87] T 51.12-20.
KD was asked if he had ever seen the accused hit ‘[his] brothers or your sisters with the belt’, to which he answered yes.[88] As to whether he recalled a specific occasion when the accused hit them, he described an occasion when the accused hit ISD over the leg with the belt when he, ISD and BD were play fighting and said it left a big bruise on ISD’s leg. After this, the accused had made ISD wear pants.[89] KD said this had made him feel upset because ISD had ‘never been treated that way’, in that he had never been hit before.[90]
[88] T 51.21-23.
[89] T 51.21-52.11.
[90] T 53.26-38.
KD said that ‘whenever he couldn’t find his belt’, the accused would hit him with electric cords, and specifically, AV cords from the Play Station or a phone charger.[91] He could not recall the details of an occasion this had happened but said he would be hit on the upper back, arms or legs, again leaving bruises or marks.[92] He did not see the accused hit any of his siblings with a cord.[93]
[91] T 52.18-22.
[92] T 52.23-37.
[93] T 52.38-53.2.
KD gave evidence that when the accused hit him with a belt or a cord, he felt sad and afraid because he did not feel safe.[94]
[94] T 53.20-25.
KD also described an occasion when the accused slapped him across the face, without causing injury, when he was climbing a tree in their backyard.[95]
[95] T 53.8-13.
In cross-examination, KD denied a proposition put to him that the accused had only ever hit him with a belt because he had been very naughty.[96] He said he had never tried to use self-defence to stop the accused from hitting him ‘[b]ecause I felt like no matter what he would (sic) still able to hit me’.[97]
[96] T 84.34-37.
[97] T 83.4-5.
KD gave evidence that his mother had never been physically violent towards him nor hit him with a belt or any other objects.[98] He said that when his mother disciplined him, she would either send him to his room or to the naughty corner, which was in the lounge room at Bombay Street.[99] He said he never saw his mother hit his brothers or sisters.[100]
[98] T 52.12-13; T 82.9-19.
[99] T 57.12-22.
[100] T 82.20-26.
Physical violence towards his Mother
KD gave evidence that the accused would hit his mother about every week.[101] He said the accused would punch her, slap her and ‘slam her head into the bench and drag her into toasters, pick her up and throw her into walls.’[102]
[101] T 54.11-15.
[102] T 54.17-19.
He described one particular incident in the kitchen, when his mother and the accused were arguing about ‘smokes’ and the accused grabbed his mother’s head, slammed it into the bench, dragged her down to the toaster, picked her up and threw her into the wall. He said he saw his mother had suffered injuries from this incident which he described as ‘bruised ribs, a broken eye socket, a blood nose and a split lip.’[103] He said this had made him felt worried and afraid that the accused could do it him and scared as he did not feel safe.[104]
[103] T 56.6-10.
[104] T 56.11-57.6.
Alleged Offending
In the first and second KD interviews, KD provided details of three separate occasions when the accused had sexually abused him, in addition to general evidence about other occasions of abuse.
Last Incident
Much of the first KD interview relates to the last occasion when KD claims the accused sexually abused him.
KD stated the last time the accused had abused him was about three years ago and that he remembered that, because it was about three years since his mother had broken up with the accused.[105]
[105] First KD interview lines 95-96 and 185-188.
When first asked to describe what had occurred on this occasion, KD said:[106]
[AJE] he grabbed me by the ankles and pulled me out of my bed and then I hit my head on the side of the bed and that’s when I woke up.
I said “what are you doing”.
He said “just be quiet”.
And I tried kicking my legs like really fast so that way he could let go and I could go away.
And he said “quit it”, he threw me on the couch and he tried sticking his private in my bottom.
And that’s all I can remember.
[106] First KD interview line 98.
Officer Zacher, who conducted both the first and second interviews, questioned KD extensively during both interviews to obtain further details of his recollection of this alleged incident. I have set out below a summary of additional information provided by KD to Officer Zacher about that incident, as extracted from various portions of those two interviews.
KD said this incident had happened at the Bombay Street house when he was aged about nine or 10 and attending Clovelly Park Primary School.[107] He said the accused woke him up about midnight and had ‘whacked’ his head on the side of the bed and told him to be quiet.[108] He started kicking his feet to try to let go.[109]
[107] Second KD interview lines 149-160.
[108] Second KD interview line 256.
[109] Second KD interview line 258.
The accused held him by the ankles and swung him onto the couch.[110] He was swearing at him and called him a coward. The accused said to him that ‘if I told anyone he would kill me and stuff.’[111]
[110] First KD interview line 100.
[111] First KD interview line 104.
The accused pulled down his pants and then put porn on the television. He said he saw ‘a girl on the TV having sex with a guy and stuff’.[112] The accused then started masturbating. When he asked the accused what he was doing, the accused told him to ‘just shut up’.[113] KD said:[114]
So he pulled down his pants, he wrapped his hand around his penis and started like moving it up and down and like he wouldn’t stop doing that until about five (5) minutes and then that’s when he told me to “shut up” and stuff.
[112] First KD interview lines 106 and 112.
[113] First KD interview line 106.
[114] First KD interview line 206.
KD said he tried to get away but every time he went to move, the accused would grab him and push him down into the couch.[115]
[115] First KD interview line 208.
Officer Zacher asked KD what happened after the accused had started masturbating. KD said:[116]
KDAnd then he started putting his private in my bottom.
ZACHER (D/B/SGT) Okay. So tell me more about that part – what happened?
KDSo after he put his private in my bottom he started humping me and stuff and I was freaking out and started to cry just before my Mum woke up cos she hear me cry… well at least that’s what I thought I heard, like I thought she heard.
ZACHER (D/B/SGT) So then what happened?
KDAnd then I hopped off, he pulled his pants up, I pulled my pants up and I ran into my room, jumped, opened up the window and the screen and jumped out the window and sat on the trampoline till Five O’clock in the morning (0500hrs).
[116] First KD interview lines 134-138.
KD explained that by ‘humping’ he meant that the accused would not stop shaking his body. By ‘shaking’, he said he meant ‘[l]ike moving my body up and down and stuff as well as his.’[117] When the accused had inserted his penis into his ‘bum hole’, it was painful.[118]
[117] First KD interview lines 141-144.
[118] Second KD interview lines 256-270.
KD said the incident had happened on a three-seater couch in the lounge room. He was lying on his stomach with his back in the air and the accused was laying stomach first on top of him with his back in the air.[119] He said he started to cry and thought that the reason his mother had woken up was because she had heard him crying.[120]
[119] First KD interview lines 148-154.
[120] First KD interview line 136.
Officer Zacher asked KD why he was crying. He said:[121]
[121] First KD interview lines 162-178.
KDI was crying because I was scared
ZACHER (D/G/SGT) Mhmm.
KDcos it hadn’t happened to me like for the first time it’s happened to me more and more and then I realised what was happening and stuff and then he would always grab me out of bed and stuff so.
ZACHER (D/G/SGT) So when you said ‘the first time it was happening’ what do you mean by that?
KDSo it wasn’t the first time he had don’t it. He’s don’t it for four (4) years straight with no one ### and then my Mum broke up with him and then that’s when I stopped beginning to feel scared.
ZACHER (D/G/SGT) So when you say ‘he did it for four (4) years straight’ – what, what did he do?
KDHe wouldn’t stop trying to attempt to rape me.
ZACHER (D/G/SGT) So when you said that ‘he put his penis in your bottom’ – has that happened one time or more than one time?
KDIt nearly happened more than once but I would always use self defence against him and it only happened once when I was in a deep sleep.
ZACHER (D/G/SGT)
Okay.
So this time that we’re talking about here is that the only time that that’s happened? So you said that he, who… you started crying.
KDYep.
ZACHER (D/G/SGT) And then what happened?
KDAnd then my Mum woke up.
ZACHER (D/G/SGT) Mhmm.
KDAnd she’s just on, like she went into the kitchen, turned on the tap and then that’s when [AJE] quickly jumped up, pulled up his pants and I pulled up mine and then that’s when I ran into my room and jumped out the window.
ZACHER (D/G/SGT) And then what happened?
KDAnd then I laid on the trampoline too scared to go to sleep.
When asked what happened the day after this, KD said:[122]
… [the accused] will try and do the same over and over again but I didn’t always like, I’d always try and stop him or my Mum would wake up.
[122] First KD interview line 194.
Officer Zacher asked KD again if the accused had only put his ‘private’ in his bottom one time and KD said yes.[123]
First Incident
[123] First KD interview lines 195-196.
In the first interview, Officer Zacher asked KD to tell her everything he could remember about the first time something happened with the accused.
KD said the first incident had occurred when he was about five years old and he remembered that because they had been in Melbourne just before he turned five and that when they came back to Adelaide, his mum had got with the accused. He thought the incident had occurred about six months after his mum had got with the accused.[124]
[124] First KD interview lines 260-264.
He said that on the first time, the accused said to him that if he told anyone what he was about to do to him, he would kill him. He said:[125]
And then he was like say “suck my penis”.
And then I would say “no”.
And then he said “do it now otherwise I’ll kill you”.
So I done it – like he forced me to do it.
[125] First KD interview line 214.
When asked to provide more detail, KD said that he had been asleep when the accused woke him up and told him to go into the lounge. Once they were in the lounge, the accused had threatened to kill him if he told anyone. The accused had then pulled down his pants. KD said:[126]
[126] First KD interview lines 224- 232.
KDand he said “suck my penis”.
I said “no”.
He said “do it” and then he rammed my, the back of my head and slammed it down and he like started making me suck his penis.
ZACHER (D/G/SGT) So tell me more about the part where you were sucking his penis – what was happening?
KDSo he was doing like he was shaking my head up and down.
ZACHER (D/G/SGT) Mhmm.
KDAnd, and like he, he said “don’t stop till I tell you to stop”.
And so because I had my mouth open cos I was like freaking out, didn’t know what to do
ZACHER (D/G/SGT) Mhmm.
KDlike he wouldn’t stop like doing like moving my head up and down and then he says “stop”.
I hopped up immediately, went to my room, started colouring-in and drawing cos colouring-in and drawing makes me feel calmer.
ZACHERMhmm.
KDAnd that’s all I can remember.
He explained that he had had his mouth open because he was scared and was crying. The accused had told him ‘shut up you little girl’ and then pulled the back of his head down to his penis and made him suck it.[127]
[127] First KD interview lines 234-240.
KD said that when sperm started to come out, the accused told him to stop. When asked for more detail, he explained that white liquid had come from the tip of the accused’s penis and that some of it had got in his mouth so he spat it out. After the accused told him to stop, the accused grabbed some toilet paper that he had on the coffee table and then KD ran back to his room.[128]
[128] First KD interview lines 242-252.
Officer Zacher asked KD to draw a layout of the lounge room where this had happened. She asked him, ‘Has it all happened in the one lounge room’ and he said yes. He then drew a plan of the room, which included a couch, a TV, a coffee table, some doors, paintings on the wall and ‘a bunch of clothes and stuff’ in the corner.[129] That drawing was tendered as Exhibit P3.
[129] First KD interview lines 270-276.
KD did not specifically state, in that first interview, that this was the lounge room of the Bombay Street house and, at that time, he was not specifically asked in which house that incident had occurred. Rather he was simply asked, immediately after describing the first incident, whether ‘it’ had all happened in the ‘same lounge room’. At the time of tendering Exhibit P3, the prosecutor described the document as a drawing of the lounge room at Oaklands Park (ie Bombay Street).
In the first interview, KD told Officer Zacher that the accused had made him suck his penis ‘just one time’.[130]
[130] First KD interview lines 265-266.
In the second interview, KD was asked more questions about the time when the accused’s penis was in his mouth. He confirmed that the lounge room he had drawn during the first interview (Exhibit P3) was the lounge room at the Bombay Street house and that this was where the accused had made him suck his penis.[131]
[131] Second KD interview lines 129-132.
As to why he remembered this incident occurring at that house, he explained that it was a few weeks after they moved into Bombay and ‘it was close to his mum’s birthday’ which ‘was three days ago’.[132] He said he would have been seven.[133] He described the incident as follows:[134]
[132] Second KD interview lines 305-312.
[133] Second KD interview line 318.
[134] Second KD interview line 320.
So [AJE] grabbed me by the ankles he pulled me out of my bed, he threw me onto the couch and then he pulled down his pants and said “if you tell anyone I’m going to kill you”.
I said “tell anyone what”?
And then he said “just shut up and be quiet”.
And then, I started freaking out cos I didn’t know what it was about to happen, and then I started crying and cos whenever I cry I always have my mouth open. He pulled down his pants and stuck his penis in my mouth.
And then he grabbed the back of my head and started like moving it like forcing it like to go like for his penis to go deeper into my mouth.
And then he, like then the sperm come out and I got a little bit in my mouth and then I spat it out.
And then he cleaned it up with toilet, like some tissues and toilet paper.
He said he felt like he was choking and the sperm tasted ‘sour and gross’.[135]
[135] Second KD interview lines 330-332.
When asked what time of day or night this had happened, he said it was around midnight. When asked why he thought that he said that there was a clock on the lounge room wall and ‘it was about one twenty something around that’.[136]
[136] Second KD interview lines 336-340.
During the second interview, Officer Zacher commenced the interview by asking KD to describe the various houses he had lived in. She asked him if anything had happened at the Daws Road house and he said, ‘No it’s a, it started on the Sturt Road house’.[137] After KD had confirmed with her that the first incident, that is, the time he made him suck his penis, had occurred at Bombay Street she sought to clarify that potential inconsistency. She asked him, at which houses did which things happen. He said:[138]
Bombay Street was the first, like was when he told me to ‘suck his penis’, and also he stuck his penis up my bum.
And then Sturt, Sturt, Sturt Road was when he kept trying to drag me out of my bed.
Aggravated Assault
[137] Second KD interview lines 89-90.
[138] Second KD interview line 136, noting the transcript at MFI P6 is inaccurate.
When ISD described this offending, he described how the accused lifted him up onto his lap, where his legs were positioned and how he was facing away from the accused. He gave this evidence without hesitation. He said it hurt when his penis was in his bottom. He said he was thinking to himself at the time why is this happening to me again? The way in which he described this incident and how he felt at the time was compelling.
Further, it is a matter of common experience, that some people who find themselves in fear, respond by freezing. Some behave differently.
Complaint Evidence
Another and perhaps the most important criticism made of ISD’s evidence was the fact that his description of the circumstances in which the two alleged occasions of sexual abuse occurred, differed from what JH recalled ISD had told him.
JH gave evidence that ISD told him of two occasions when the accused had ‘raped’ him. JH said ISD told him that the first time occurred when ISD was in trouble at school and was sent home early. When his mother went to school to get the other children, AJE had ‘talked him into it’, it had hurt so he told him to stop, but he didn’t. The second time was when ISD was grounded, so he had to stay at home with the accused while the others went to the shops. He said ISD told him that AJE held him down and raped him.
There are obviously marked differences in JH’s account of what he recalls ISD told him, and ISD’s evidence of these two incidents.
However, there is no evidence that ISD’s account of the general circumstances surrounding these two incidents, has changed materially over time, or, for example that he had told the police that the incidents had occurred in the manner described by JH.
ISD was adamant during his evidence that he did not tell either JH or his mother the details of the alleged offending and said that he had only told them he had been sexually assaulted by the accused.
When giving this evidence, ISD was very convincing. The fact that a teenage boy may be reluctant to go into detail about such things, either to a friend of his mother’s partner, or to his mother, is understandable. Further, ISD’s evidence as to how he felt after disclosing the abuse to his mother was also very convincing. That is, he felt relief because he did not have to hide it anymore and he was safe to say it, as AJE was no longer around.[669]
[669] T 192.13-20.
I have carefully revisited JH’s evidence. He remembered that during this conversation, ISD was crying. He described him as being devastated and really emotional. He said ISD initially told him that AJE had ‘hurt him’. As to what ISD had meant by the word ‘hurt’, JH said:[670]
A.Well I asked Isaiah what he meant by what he said and he told me that Adam had either - I can't remember the words exactly - sexually assaulted or raped him, on two occasions.
Q.So, you don't recall the exact words but you think either that he used the words 'sexually assault' or he used the word 'rape'. It was one of those two expressions.
A.Yes.
[670] T 288.36-289.6, noting that JH clearly spoke of ISD disclosing two separate occasions of abuse, not one, as submitted by defence counsel; in his closing address.
This is largely consistent with what ISD now recalls as to what he told JH during that conversation. It may well be that because he was so upset during this conversation, ISD does not recall telling JH that ISD had sexually assaulted him twice. As previously stated, ISD said even when telling JH, he was still scared of the accused, being evidence I accept. I am satisfied this was a very emotional and difficult conversation for ISD and that his memory of what he said then, or even to his mother only shortly thereafter, may not be precisely accurate.
However, JH was then asked if ISD had provided him with any further detail and he initially said no. He then corrected himself and described the details in the terms as outlined above.
I have previously outlined my observations of JH and CJ. They clearly had a close friendship. CJ trusted JH enough to talk to ISD about his behaviour and told him about ISD behaving inappropriately. In these circumstances, while there was no specific evidence on this topic, CJ (and/or PT) may well have discussed with JH the various allegations made by the other children against the accused and/or other allegations relating to sexualised behaviour between the children. There was a multiplicity of such allegations, some involving occasions when the children were home from school.
As such, it is possible that JH’s memory of what ISD told him during that conversation is now contaminated by what he has heard about the other allegations.
Notwithstanding ISD denied he stayed home at the time of the second incident because he was grounded, it is possible that he was grounded at the time, but simply cannot remember this now.
Nevertheless, I have very carefully considered the differences in JH’s account of what ISD told him, and what ISD claims to be the circumstances of the two alleged incidents, when considering whether I can accept ISD’s evidence as to either count, considered separately, as being both reliable and credible.
As outlined at paragraph 459 herein, PT recalled ISD telling her the accused made him suck his penis. ISD categorically denied telling her this. I accept ISD’s evidence on this issue. As outlined previously, I have several concerns as to the reliability of PT’s evidence, and consider she is likely mistaken when attributing this statement to ISD.
In cross-examination, ISD denied ever telling JH, CJ, PT or KD that the accused had only put his penis in his bottom once. There was simply no evidence that ISD had said such a thing to any of JH, PT, CJ or KD. It seems likely this line of questioning derived from KD’s evidence that CJ told him that the accused had stuck his penis in ISD’s bum, but only once. CJ denied having any such conversation with KD. I cannot accept KD’s evidence on this issue.
As to when ISD made his initial complaint, each of ISD, JH and PT described this as being when the family was living with CJ at the Crittenden Road house. ISD was uncertain if it was before or after IT was born but thought it was before. PT said the conversation occurred about two weeks after IT was born.
JH said ISD disclosed the alleged offending to him about 6 months prior to him falling out with CJ and PT. He said that falling out had occurred when IT was about 3 months’ old and CJ had accused him of having an affair with PT when he bought her a phone to replace hers as it was broken.
JH’s evidence as to precisely when his conversation with ISD occurred was somewhat vague. He was uncertain if it occurred before or after IT was born. However, he was asked to clarify the timing by reference to what he said in a police statement, namely that at the time of the fall out, PT had a newborn. JH said that to him a newborn was a baby aged between zero and two.
None of these dates can be reconciled. It is impossible for the Court to determine precisely when ISD made the complaint to JH and to his mother. However, on any version, it was well after the accused and PT had separated, at a time when CJ and PT were in a relationship and when IT, at the very least, had been conceived, if not born. The accused was no longer in their lives.
As such, notwithstanding the differences in ISD’s account of the alleged offending and the recollection of each of JH and PT as to the content of the complaint made by ISD, I am satisfied that the complaint evidence does demonstrate some, albeit limited, consistency of conduct, insofar as JH recalled ISD talking about two times he was abused and the timing of that complaint being when the accused was out of PT’s life and out of ISD’s life. Although ISD said he was still scared of the accused when he told JH, the fact was that AJE was not living with them or having anything to do with them, when he finally got this off his chest.
Sexualised Behaviour/Motive to Lie
It was submitted that ISD had a potential motive to lie about the alleged offending to deflect blame away from him for his inappropriate sexual behaviour towards his siblings and specifically AT.
ISD denied any knowledge of an allegation made by AT that he had put his finger in her bottom or double dared KD to do so. He also denied knowing that CJ had told the school that he was having sex with AT.
However, ISD gave evidence that CJ regularly called him a paedophile and a rapist and that he did so in response to an incident that occurred at Crittenden Road, before he told JH about the alleged offending. While CJ denied calling ISD a paedophile, I prefer ISD’s evidence on this topic. I do not consider this is something that a teenage boy would make up, noting ISD recalled that CJ went as far as to put a sign on his door that said ‘paedophile’.
Importantly, ISD also gave evidence that he had a conversation with CJ when they were living at Crittenden Road about AT alleging, he had sexually assaulted her. When asked if this was before or after he disclosed the alleged offending to JH, he said that it was both before and after.
I am satisfied from all of the evidence that ISD did know about an allegation he had sexually assaulted AT before he made his initial complaint to JH.
When all of the evidence as to the potential timing of the various complaints made by the children is considered, it is possible that ISD did not make his complaint to JH until after AT spoke to Officer Sweetman at the school about the alleged abuse perpetuated on her by PC, KD and ISD.
As such, I have considered carefully whether because of these allegations, ISD had a motive to lie about the alleged abuse occasioned on him by AJE.
CJ gave evidence that when the complainants were living at Johnson Road, he found ISD ‘wanking’ under the blanket. Having regard to all of the evidence, I consider it likely that ISD was aware of an allegation that he was behaving in a sexually inappropriate way with AT before the family moved to Crittenden Road.
If ISD is lying about the alleged abuse to deflect the blame away from him for this inappropriate behaviour, the obvious question to ask is, why did he not simply tell CJ, or his mother about the alleged abuse when he was first accused of it, or first called a rapist or a paedophile by CJ. Why would he choose to wait to tell this lie to JH, sometime later?
Further, ISD gave evidence that he was not worried that his mother would believe what CJ said about him (being a rapist) or disbelieve what he said about this ‘because I know for a fact my mum will 100% believe me’.[671] I had no doubt from observing ISD give that evidence, that he genuinely believed that to be true.
[671] T 228.33-34.
Similarly, from my observations of PT, she was very protective of her children. For example, she said her boys would never be physically rough with AT and denied ever observing sexual behaviour or sexual discussions between her children. She denied ever segregating off ISD in the hallway to Crittenden Road to keep an eye on him or because of a concern he would behave in a sexually inappropriate way with his siblings.
My impression was that PT’s reluctance to admit this, in the face of a large volume of evidence to the contrary, was in part to protect her family and to counter any suggestion that she could not properly care for her children (or keep them safe from each other). However, it was apparent from this evidence that PT was reluctant to acknowledge that ISD was behaving in an inappropriately sexual way towards AT, or anyone. I share ISD’s view that, in all likelihood, his mother would believe him if he denied he had sexually assaulted AT.
In such circumstances, and having regard to all of the evidence, I am not satisfied that ISD lied to JH, and then to his mother, about the alleged offending to deflect blame from him for allegedly sexually assaulting his siblings.
During cross-examination each of the complainants was asked about whether they had been caught smoking by CJ and, as to AT and KD, whether, in fact, they had complained to CJ about the alleged offending at that time. ISD was also asked if he remembered being caught smoking by CJ at either Johnson Road or Crittenden Road and he denied that. CJ could remember catching the children smoking but he was not sure who was involved or where it had happened.
While there may well have been a time that ISD was caught smoking by CJ, which he now does not remember, I am satisfied that he did not disclose the alleged offending to CJ at that time, in order to avoid getting punished for having been caught smoking. There was simply no evidence to support such a finding.
Of course, it is not for the accused to prove a motive to lie. Absence of such a motive does not make the prosecution case any stronger. I still must be satisfied that the prosecution has proved, beyond reasonable doubt that ISD is telling the truth about the alleged offending in each count, considered separately, before I can return a verdict of guilty to a count or counts.
Esoteric Knowledge
Counsel for the accused cautioned against any suggestion that ISD had ‘esoteric’ knowledge of sexual acts which could only have been learned through his experience as a victim of the accused’s offending. He emphasised not only the fact of the various allegations of inappropriate sexual behaviour made against ISD by AT, but the fact that, by his own admission, ISD had seen pornography while at the Bombay Street house, and probably more times than he in fact recalled.
I agree with that submission.
However, the fact that ISD may have had some understanding of various sexual acts (or even experience participating in various sexual acts of his own volition) does not, in my view, diminish in any way my impression of ISD’s evidence about how he felt during the alleged abuse and what the accused had done to him.
Further, the very fact that ISD was behaving in a sexualised manner towards the other children in the house at Johnson Road and Crittenden Road, at a young age, supports a finding that he had been exposed to such activity at an earlier time, thus resulting in that behaviour. While that exposure may have been through watching pornography through the door at Bombay Street, it may also be explained by his earlier experience of being sexually abused by AJE.
Contamination
Having regard to all of the evidence, I reject any suggestion that ISD’s account of the alleged abuse is contaminated by the fact that he seen pornography and/or participated in sexual acts as a willing participant. In my view it is simply not reasonably possible that ISD is somehow now mistaken as to the alleged offending by the accused, because of what he may have seen on television, or because he may have been a willing participant in sexual acts with others.
Counsel for the accused submitted that there was a very possibility that the accounts of each complainant had been contaminated by what they knew about the allegations of sexual offending made by the other complainants.
ISD was adamant that he had not discussed details of the alleged offending with either AT or KD, nor had they discussed with him any details of the alleged offending perpetuated upon them by the accused. Counsel for the accused submitted that I should have real doubts about the truth of that evidence given what KD said about sitting in a Holden Jackaroo at Crittenden Road when he spoke to CJ about the offending, I have already addressed this evidence at paragraphs 847 to 854 herein.
ISD’s allegations can be contrasted with those of AT and KD in that he is quite specific in recalling two distinct acts of abuse. He did not allege any ongoing and sustained abuse of the type described by AT and KD.
I am satisfied that none of the complainants disclosed the offending to CJ after having been caught smoking by him and while in the company of each other.
There is no evidence that ISD did, in fact, know about the allegations made by AT or KD. He denied knowing about them until after they went to the police with those allegations. There was no evidence to the contrary.
I am satisfied beyond reasonable doubt that ISD’s account of the offending is not contaminated by anything he may have heard others say about the accused.
Finally, there was no evidence that ISD had ever been told by anyone to lie about things done to him by the accused.
Summary
My impression of ISD’s evidence from having the benefit of observing him give evidence was that he was telling the truth about the two alleged acts of sexual abuse he said were perpetuated upon him by the accused.
I accept ISD’s evidence that there were two times when the accused inserted his penis in his anus while they were living at Bombay Street. I accept ISD’s evidence that he did not tell anyone about the alleged offending at the time because he was scared of the accused. I accept ISD’s evidence that he is not lying about the abuse to deflect any blame away from himself for his own behaviour or because he has been told by someone else to say untruthful things about the accused, or in order to remove the accused from is life or for any other reason.
I have not engaged in any similarity of account, or propensity reasoning.
I have undertaken a very careful scrutiny of all of ISD’s evidence and have carefully considered the other admissible evidence relating to count 4, considered separately and in particular the criticisms made by defence counsel, to determine whether I can be satisfied beyond reasonable doubt as to both of the truthfulness and accuracy of ISD’s account of the alleged offending in count 4. Having done so, I am so satisfied.
Similarly, I have undertaken a very careful scrutiny of all of ISD’s evidence and have carefully considered the other admissible evidence relating to count 5, considered separately and in particular the criticisms made by defence counsel, to determine whether I can be satisfied beyond reasonable doubt as to both of the truthfulness and accuracy of ISD’s account of the alleged offending in count 5. Having done so, I am so satisfied.
Further, I have carefully considered whether as to each count, considered separately, there is any reasonable possibility on the evidence, that the accused is innocent. Having done so, I do not consider there to be any reasonable possibility that the accused is innocent of either count 4 or count 5.
Findings – Count 4
I am satisfied beyond reasonable doubt, that one night, shortly after the complainants moved to Bombay Street to live, when ISD was aged about 10, between the dates as charged, the accused came into ISD’s bedroom, woke him up and asked him to come into the lounge room with him.
I am satisfied beyond reasonable doubt, that while ISD and the accused were alone in the lounge room, the accused removed ISD’s pants. I am further satisfied that while he was lying behind ISD on the couch, the accused penetrated ISD’s anus with his penis.
I am satisfied beyond reasonable doubt that at that time, the accused was an adult and ISD was a child under the age of 14.
I find the accused guilty of count 4.
Findings - Count 5
I am satisfied beyond reasonable doubt, that about a year after the first time the accused sexually abused ISD, and ISD was aged approximately 11, between the dates as charged, the accused and ISD were alone, at the Bombay Street house. They were alone in the lounge room, watching television together. PT and the other children had all left the house to go to the shop.
I am satisfied beyond reasonable doubt that while ISD and the accused were sitting on the couch, the accused started masturbating. He then asked ISD to sit on his lap. He picked ISD up and put him on his lap so that ISD was facing away from him and ISD’s legs were straddling either side of his legs. He removed ISD’s pants.
I am satisfied beyond reasonable doubt that while ISD was sitting on his lap, the accused penetrated ISD’s anus with his penis.
I am satisfied beyond reasonable doubt that at that time, the accused was an adult and ISD was a child under the age of 14.
I find the accused guilty of count 5.
Verdict
I find the accused not guilty of counts 1, 2 and 3.
I find the accused guilty of counts 4 and 5.
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