R v Anderson
[2023] SADC 47
•28 April 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ANDERSON
Criminal Trial by Judge Alone
[2023] SADC 47
Reasons for the Verdicts of her Honour Judge Telfer
28 April 2023
CRIMINAL LAW - PARTICULAR OFFENCES - SEXUAL OFFENCES - SUPPLYING A CONTROLLED DRUG TO A CHILD - PROPENSITY EVIDENCE - PROCLIVITY EVIDENCE
The accused was charged with Supplying a Controlled Drug to a Child (counts 1, 2, 3 and 9), Maintaining an Unlawful Sexual Relationship with a Child (count 4), Aggravated Indecent Assault (counts 6, 7 and 13), Attempting to Incite or Procure a Child to Commit an Indecent Act (counts 8 and 12), Assault (counts 10 and 11) Possession of Child Exploitation Material (count 14) and Aggravated Possession of Child Exploitation Material (count 15). It was alleged that between 1 June 2020 and 19 September 2020 the accused committed the various offences against three children who regularly attended his unit in the city. The three children DE, JD and JR all had unsatisfactory home lives and were often in need of a place to stay. All three children were drug users and it was alleged that the accused provided controlled substances to them for free, which enticed them to return to his unit. While they were at his unit it is alleged he committed the charged acts against them, which included sexual offences against DE, JR and JM, and supplying controlled substances to DE and JR. Counts 14 and 15 related to material discovered on a laptop located in the accused’s unit during the police investigation.
HELD: The accused is not guilty of Supplying a Controlled Drug to a Child (counts 1, 2, 3 and 9), guilty of Maintaining a Sexual Relationship with a Child (count 4), not guilty of Assault (counts 10 and 11), not guilty of Attempting to Incite or Procure a Child to Commit an Indecent Act (count 12), not guilty of Aggravated Indecent Assault (count 13) and not guilty of Possession of Child Exploitation Material (count 14) and Aggravated Possession of Child Exploitation Material (count 15).
Verdicts are not required on counts 5, 6, 7 and 8 which are each laid in the alternative to count 4.
Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 13A, s 13BA, s 34P; Controlled Substances Act 1984 (SA) s 33F(a); Criminal Law Consolidation Act 1935 (SA) s 22(4), s 63B(1)(a), s 63B(3)(b), referred to.
R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68; R v Palmer (1998) 193 CLR 1; R v Turney (1990) 52 SASR 438; R v Heinze [2017] SASCFC 155; Kirkland v The Queen [2021] SASCA 14; R v Symons (2018) 130 SASR 503; R v Richards [2016] SASCFC 79; R v Mann [2020] SASCFC 69; R v Morcom [2015] SASCFC 30, considered.
R v ANDERSON
[2023] SADC 47Introduction
The accused Mark Vernon Anderson is charged with offences against three complainants: DE, JR and JM. All three complainants were children who spent much of their time in the city, staying at the homes of friends and relatives as and when they could. Each had unsatisfactory home lives and preferred the chaotic lifestyle offered within the city community.
During the charged period, the accused occupied a two-storey unit in Carrington Street, Adelaide. All three children spent time at his unit, including staying overnight. The children were attracted to staying there for a variety of reasons, including that police officers who were regularly tasked to look for them and return them home rarely attended at the accused’s unit.
When the accused was interviewed by the police about the various allegations, he admitted that he knew all three children, and that each of them had spent time at his unit. What was in dispute at this trial was the precise nature of his relationship with each child, and whether the accused committed offences against them when they attended at his unit.
The accused is charged with the following counts:
First Count
Statement of Offence
Supplying a Controlled Drug to a Child. (Section 33F(a) of the Controlled Substances Act, 1984).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, supplied a controlled drug, namely cannabis, to DE Junior, a person under the age of 18 years, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Supplying a Controlled Drug to a Child. (Ibid).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, supplied a controlled drug, namely methylamphetamine, to DE Junior, a person under the age of 18 years, knowing or being reckless as to the fact the substance was a controlled drug.
Third Count
Statement of Offence
Supplying a Controlled Drug to a Child. (Ibid).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, supplied a controlled drug, namely 3,4-methylenedioxymethylamphetamine, to DE Junior, a person under the age of 18 years, knowing or being reckless as to the fact the substance was a controlled drug.
Fourth 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
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, maintained an unlawful sexual relationship with DE Junior, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards him, namely:
(a) … (deleted);
(b) grabbing his genital area on more than one occasion;
(c) asking DE Junior to defecate on him on at least one occasion;
(d) asking DE Junior to defecate and give the accused the faeces on more than one occasion;
(e) asking DE Junior to engage in anal intercourse with him on at least one occasion; and
(f) asking DE Junior if he could lick DE Junior’s anus on at least one occasion.
Fifth Count
Nolle Prosequi
Sixth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, indecently assaulted DE Junior by touching his genitals on the outside of his clothing.
Seventh Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, indecently assaulted DE Junior by touching his genitals on the outside of his clothing.
Eighth Count
Statement of Offence
Attempting to Incite or Procure a Child to Commit an Indecent Act. (Sections 63B(1)(a) and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, attempted to incite or procure DE Junior, a person under the age of 17 years, to commit an indecent act, namely defecate on the accused.
Ninth Count
Statement of Offence
Supplying a Controlled Drug to a Child. (Section 33F(a) of the Controlled Substances Act, 1984).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, supplied a controlled drug, namely cannabis, to JR, a person under the age of 18 years, knowing or being reckless as to the fact the substance was a controlled drug.
Tenth Count
Statement of Offence
Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, assaulted JR.
Eleventh Count
Statement of Offence
Assault. (Ibid).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, assaulted JR.
Twelfth Count
Statement of Offence
Attempting to Incite or Procure a Child to Commit an Indecent Act. (Sections 63B(1)(a) and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, attempted to incite or procure JR, a person under the age of 17 years, to commit an indecent act, namely defecate on a plate for him to consume.
Thirteenth Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Mark Vernon Anderson between the 1st day of June 2020 and the 19th Day of September 2020 at Adelaide, indecently assaulted JM by touching his thigh.
It is further alleged that Mark Vernon Anderson committed the offence knowing that JM was a child under the age of 14 years.
Fourteenth Count
Statement of Offence
Possession of Child Exploitation Material. (Section 63A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Mark Vernon Anderson on the 18th day of September 2020 at Adelaide, possessed child exploitation material, knowing of its pornographic nature.
Fifteenth Count
Statement of Offence
Aggravated Possession of Child Exploitation Material. (Section 63A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Mark Vernon Anderson on the 18th day of September 2020 at Adelaide, possessed child exploitation material, knowing of its pornographic nature.
It is further alleged that Mark Vernon Anderson committed the offence knowing that the victim was under the age of 14 years.
Throughout the charged period, DE was 14 years of age. He was subject to an order placing him under the guardianship of the Chief Executive of the Department for Child Protection (a guardianship order) and was placed in a residential care home.
JR was 16 years of age during the relevant period. She was DE’s girlfriend and attended at the accused’s unit in company with him. She attended the accused’s unit less frequently than DE.
The youngest of the three children JM, was subject to a guardianship order, and like DE was placed in a residential care home. JM was a friend of DE’s and also frequently absconded from residential care. During the charged period, JM was 11 years of age.
It is alleged that the accused supplied all three complainants with illicit drugs which they consumed at his unit, and elsewhere. It is further alleged that the accused maintained an unlawful sexual relationship with DE. It is alleged with respect to JM that on one occasion he indecently assaulted him by touching his thigh. In respect to JR, it was alleged that on two occasions he assaulted her by touching her bottom. The assaults against JR were not alleged to have been committed in circumstances of indecency.
The prosecution relied on various items of evidence to establish that the accused had a specific sexual interest in faeces and acts of defecation (coprophilia). Allegations that the accused asked DE to provide his faeces to him were relied on as acts of sexual abuse which, in part, constituted the charge of maintaining an unlawful sexual relationship with a child.
The accused pleaded not guilty to each count on the Information and elected for trial by Judge alone pursuant to s 7 of the Juries Act 1927.
Preliminary Directions
In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:[1]
It has not yet been possible for the Court to accumulate a body of precedent regarding the approaches to be taken by a judge instructing himself or herself on the applicable principles of law. It seems to have been assumed that the judge is bound to record (as if in an instruction to a jury) the considerations which have been taken into account in reaching the determination on the issue of guilt. It also seems to have been assumed that the same explanations for adopting one course rather than another, which are regularly used to justify decisions at trial before a jury, are to be incorporated, without modification, in a trial before a judge sitting alone. I question these assumptions. It is not self-evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. It should be perfectly possible for the judge to hear inconsistent submissions put in the alternative. In the hands of a trained judicial officer, these would be evaluated on their merits and decided as the law and the factual findings required.
The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal. (References omitted)
[1]R v Winner (1995) 79 A Crim R 528 at 530-531, cited in R v Keyte (2000) 78 SASR 68 at [54].
With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter.
Presumption of Innocence and Right to Silence
The accused has the presumption of innocence in his favour. He is innocent of the charges unless and until the prosecution prove his guilt beyond a reasonable doubt, and he need not prove anything. He cannot be convicted on any count unless the evidence relevant to that count proves the elements to the requisite standard.
In this matter the accused chose not to give evidence. He was under no obligation to do so, and I draw no inference from the fact that he exercised his right to silence at trial.
Discreditable Conduct
By a discreditable conduct notice filed on 16 June 2021, the prosecution gave notice that their case relied upon propensity reasoning.[2] The accused objected to the evidence being used in the way outlined by the prosecution. As the objection did not concern the admissibility of the evidence, but the use to which it was to be put, I heard the evidence and will outline later in these reasons how I have used each item relied upon by the prosecution.
The Evidence
[2]Evidence Act s 34P (2)(b).
People and Locations
During the relevant period, the accused resided in a unit which was part of a large group of units in Carrington Street, Adelaide. He had lived in unit 12 since the year 2000. Unit 12 was upstairs, and the stairs could be accessed through a secure external door which had a buzzer which activated in the accused’s unit.
Unit 6 in the same complex was on the ground floor beneath the accused’s unit. On 24 March 2020, Gordon McNickle moved into unit 6. Gordon McNickle was a long time family friend of the DE’s parents, and prior to moving into unit 6 he had been staying with DE’s mother Ms VS.
Sometime after July 2020, DE’s Father Mr E began staying at unit 6 with Mr McNickle. Prior to July 2020 Mr E had been in prison.
The complainants DE and JR were in a romantic relationship with one another. DE was 14 years old, and JR was 16 years old. JM met DE at a suburban skate park and thereafter they became friends. JR and JM came to meet the accused and attend his unit through their relationship with DE.
An important background to the evidence heard in this case is that none of the three complainants, DE, JM and JR enjoyed stable or consistent home lives. All three were regularly absent from the places where they were meant to be staying. DE and JM were both subject to guardianship orders which required their care to be provided by the Department of Child Protection. Both were regularly the subject of missing persons reports which were actioned by the police. DE was often avoiding the police, as he knew police would be looking for him if he was missing from his care placement. DE knew that if they located him, the police would attempt to return him home.[3] Although JR was not subject to guardianship orders, her home life was unsatisfactory and unstable, and she preferred to spend time with DE rather than return home.
[3]TS 55.
DE and JM were both regular users of methylamphetamine. JR regularly used cannabis but no other illicit drugs.
All these factors contributed to the creation of an environment where DE, JR and JM were aimless, poorly supervised, using drugs and living from day to day. They often found themselves in need of somewhere safe to stay. Those circumstances led them to begin spending time at the home of the accused.
Evidence of DE
At the time he gave his evidence DE was 17 years of age. He told the court that he had lived ‘in care’ since he was 10 years of age. He has 8 siblings, some older than him and some younger.
After DE was introduced to the accused, he began to visit him a couple of times per week. He thought his visits occurred over a few months, ending when the accused was arrested.[4]
[4]The evidence established that the accused was arrested on these offences on 19 September 2020 at his home at Carrington Street.
DE said he was not the only person who visited and stayed with the accused from time to time.[5] He said there were many people who came and went. He referred to an adult by the name of Brendan who was homeless, but would sometimes stay at the unit, and a male called Joe Camilleri who also stayed for a period of time. Friends his own age including JM would also visit the unit at the same time that he did.[6]
[5]TS 57.
[6]TS 59.
DE told the court that when at the accused’s unit he used drugs that were provided by the accused. The drugs included alcohol, methylamphetamine, cannabis and “MD”.[7] DE said that he was given drugs by the accused in the first week that he visited him. In the past he had used a variety of drugs, although methylamphetamine was his drug of choice.
[7]TS23.
Sometimes during visits the accused provided DE with food to eat. The accused did not ask for any financial contribution to the running of the household. When DE stayed overnight, he would sleep on the couch in the downstairs loungeroom. JR would also sleep on the couch if she stayed overnight, and the accused slept upstairs in his bedroom.[8]
[8]TS 51.
DE said that although his girlfriend JR did accompany him to the unit, she did not really like going there.[9] DE estimated that JR had visited with him no more than about 10 times in total.[10] His friend 11 year old JM visited the accused a little less frequently than he did.[11]
[9]TS 26.
[10]TS 26.
[11]TS 26.
DE said that during the time he visited, the accused frequently made comments which were “weird or crude”. This included asking DE for clothing, including his underpants, in exchange for drugs. DE said when he asked why he wanted his underpants, the accused told him that they “had flavour or some shit”.[12]
[12]TS 27-28.
DE said that on one occasion the accused offered him drugs in exchange for a pair of his underpants. DE agreed to the exchange, but then went downstairs to Mr McNickle’s house and obtained a pair of his underpants. He then exchanged Mr McNickle’s underpants for what he described as “probably meth”, supplied by the accused.[13]
[13]TS 33.
JR gave evidence of an occasion when she heard the accused offer to provide ‘a point’ to DE in exchange for a pair of his underpants.[14] She confirmed that DE obtained a pair of underpants from Mr McNickle downstairs and obtained drugs from the accused in exchange.[15] JR understood ‘a point’ to be the drug ice, and a point would cost between 50 and 60 dollars.[16]
[14]TS 110.
[15]TS 110.
[16]TS 111.
JR told the court that she had observed the accused in his bedroom chewing on a pair of underpants. The circumstances made her believe that she had interrupted something the accused had intended to be private.[17] Earlier on the day she witnessed this, or the day before, the accused showed her the same underpants, telling her they had “skid marks and poo” on them.[18]
[17]TS 175-176.
[18]TS 125.
DE said that the accused made comments to him about faeces. He said that on a couple of occasions the accused asked him for faeces. On more than one occasion he asked DE to “shit on him”, or “shit on a plate”. DE said that he was reluctant to accede to those requests, and the accused then asked him to “Just shit in the toilet and leave it there for me”.[19]
[19]TS 28.
DE described a specific occasion when the two were together upstairs in the accused’s bedroom, and the accused asked DE to defecate on him. DE alleged that the accused asked him to leave faeces in the toilet on more than one occasion.
DE said that the accused discussed faeces regularly, including describing the taste of faeces from little boys or little children as sweet.[20] The accused told DE that he ate faeces spread on toast.[21] In cross examination, DE agreed that the accused appeared to be fixated on the topic of faeces.[22]
[20]TS 29.
[21]TS 29.
[22]TS 80.
DE observed bags of faeces in a couple of places inside the accused’s unit. One on occasion he saw a bag containing faeces on a little desk and on another he saw a bag in the living room.[23]
[23]TS 30.
JR gave evidence that she heard the accused ask both DE and JM to defecate onto a plate for him, or to defecate onto the floor so that he could eat it. These comments were mainly directed towards DE and JM, but also, less often, towards her.[24]
[24]TS 115.
JR said she saw a bag containing faeces on a table in the downstairs hallway. She could not be sure if it was human or animal faeces and she left the bag where it was.[25]
[25]TS 115.
DE alleged that on a number of occasions the accused asked him for a ‘cream pie’. The accused explained to DE that a ‘cream pie’ was when a male ejaculates inside the anus of another.[26] DE said the accused asked more than once whether he could ‘eat his arse’. Requests for sexual conduct relating to ‘arse’ were often accompanied by an incentive to participate. DE said, “he would always chuck an incentive out, you know what I mean, yeah”.[27] DE said that in addition to offering the drugs the accused would also sometimes offer money for sexual acts or positions.[28]
[26]TS 31.
[27]TS 32.
[28]TS 31.
DE said that the accused expressed the view that “sex is sex, just have fun, stuff like that, you know, and age is just a number”.[29] DE said he requested sexual contact, saying “you can just lay there and do nothing, Ill just do it all”; and “you lay there and I’ll do whatever I want to ya”.[30]
[29]TS 34.
[30]TS 34.
DE described other features of the accused’s home environment that made him uncomfortable. There was a hanging chair in the spare room that the accused described as a ‘sex swing’ and there were two dildos in plain sight on his bedhead. On one occasion the accused showed DE magazines DE described as ‘gay porn magazines’ in a drawer in the kitchen.[31]
[31]TS 35.
DE gave evidence that the accused touched him in an indecent way on a number of occasions when he was at the unit. DE alleged the accused would touch “[my] private part, my neck, just my body in general”. He described three specific occasions when the accused touched his penis or genital area. On each of those occasions he remained clothed.
The first occasion occurred downstairs in the loungeroom. The accused was sitting with DE on the lounge. The complainant JM was also in the lounge and JR was in the kitchen making food. The accused reached over towards DE from where he was sitting and grabbed his genital area using his whole palm.[32] DE said he immediately jumped up and went into the kitchen.[33]
[32]TS 43.
[33]TS 43.
DE described another occasion he alleged that he had been indecently touched while in the loungeroom downstairs.[34] He was laying on the couch and the accused was seated at his feet. The accused jumped up from his position, pinning DE’s arms down. While holding him in that position he bit and licked his neck, then the two rolled around. DE said then “I grabbed his wrists and then he was like laughing and stuff and I just got up, you know, didn’t want to hold him or nothing, I just got up and … walked into the kitchen”.[35] I note that this occasion is not relied upon as a particular underpinning the charge of maintaining an unlawful sexual relationship with a child, having been deleted as a particular at the outset of the trial.[36]
[34]TS 44-45.
[35]TS 44.
[36]Previously laid as count 4, particular 9(a).
The next specific occasion that DE described occurred in the upstairs bedroom of the unit. The accused was sitting on the side of the bed and DE was sitting on the end of the bed. The accused reached over, and his hand made contact with DE’s groin. He described the area as “like the groin area, you know like where the leg is but then also where the rude part is”.[37] DE said the contact with his groin was not long, as he had come accustomed to being on edge around the accused and he would generally try and move before any contact occurred.[38]
[37]TS 46.
[38]TS 46.
The third occasion of genital touching described by DE was alleged to have occurred when he was performing a handstand. He could not recall why he was doing a handstand but assumed that he was “probably off me head or something”. DE recalled some mates his own age were visiting at the unit when this occurred.[39] DE said that as his legs fell apart during the handstand the accused “cupped him” meaning he cupped his hand over his genitals.[40]
[39]TS 47.
[40]TS 47.
DE also gave generalised evidence that there were occasions when the accused tried to put his finger into his bottom as he bent over to pick something up. He was clothed on these occasions.[41]
[41]TS 75.
DE also gave evidence that illicit drugs were supplied to him by the accused at the unit. DE said that he obtained “meth, weed, MD, alcohol, about it” from the accused.[42] DE said the accused regularly provided him with methylamphetamine. Sometimes he would take the drug and use it elsewhere, and sometimes he would use it in the presence of the accused. The accused also consumed drugs in the company of DE, either by smoking or injecting.[43] On one occasion when they were using drugs together the accused explained that injecting the drug “does more to you”.[44] That occasion is charged as count 2 on the information – supplying a controlled drug, namely methylamphetamine, to a child.
[42]TS 23.
[43]TS 38.
[44]TS 38.
DE said on more than one occasion the accused offered him ‘fantasy’, which he said he had in a flask in his bedroom. DE declined those offers.
DE described two occasions on which he believed the accused supplied him “synthetic weed”. DE said that the accused described the substance to him as “stronger dope”.[45]
[45]TS 39.
On the second of those occasions, DE alleged that he asked the accused for “normal weed” and what he was given had that appearance.[46] When DE smoked the substance, however, it affected him differently. He said he was “bad, throwing up everywhere, couldn’t move, sweating, yeah … if I stood up like my head would spin and then I’d throw up. I couldn’t breathe when I was throwing up, so I just sat back down, I was just out of it”.[47] That alleged supply is charged as count 1 on the Information – supplying a controlled drug to a child. It is alleged that the controlled drug supplied was synthetic cannabis.
[46]TS 40.
[47]TS 39.
It was further alleged that the accused supplied DE with the drug methylenedioxymethamphetamine (MDMA), which the accused referred to as ‘MD’.[48] DE said on one occasion the accused offered him what he described as ‘MD’ claiming that consuming it would make him feel “sexual, happy”. The substance was a yellow crystal/powder and DE consumed it by snorting it through a straw. DE felt no effect from the substance.[49] That occasion is charged as count 3 on the Information – supplying a controlled drug to a child.
[48]TS 40.
[49]TS 40.
DE said there were one or two occasions when the accused supplied him with alcohol. He could not describe what kind of alcohol it was. DE said he did not really like alcohol back then.[50]
[50]TS 41.
In cross examination, DE was taken to each occasion on which he alleged he was indecently touched by the accused. He exhibited a lack of clarity about who else had been present inside the unit on any of those occasions. He said that although he recalled what the accused had done to him, there was uncertainty in his mind about whether anyone was present, or at least in the unit at the time. He explained that “heaps of people come through his house all the time”.[51]
[51]TS 75.
In cross examination, DE agreed that the accused openly talked about sex with people other than him. He agreed that the accused tried to discuss the topic with “almost anyone who would listen”.[52] It was suggested to DE by way of example that there was an occasion when the accused visited Mr McNickle’s unit in possession of handcuffs, a gag ball and other clothing, and asked those present if they “wanted to come and play”.[53] DE said he did not specifically recall the occasion, but that it was “something he’d [the accused] do”.[54]
[52]TS 77.
[53]TS 78.
[54]TS 78.
DE was asked whether he re-attended the accused’s unit after he had given a statement to police and after the accused had been arrested. DE admitted that he had done so, saying that the man Brendan was inside and had let him in.
Evidence of JR
JR was 18 at the time that she gave her evidence. She was still in a romantic relationship with DE. She said that prior to meeting the accused she and DE were couch surfing, or sometimes staying at DE’s mother’s unit. JR said that they began to stay with the accused because DE was on the run from the police and she was having trouble at home.[55] JR said she went to the accused’s house as often as DE did, because she did not want DE or JM to be there on their own.[56] JR was worried about the accused’s intentions towards the boys who were both younger than her.
[55]TS 104.
[56]TS 105.
JR said the accused regularly supplied her with cannabis. The value of the cannabis varied from $10 to $25, and she never paid for it.[57] JR said the accused gave her cannabis whenever she asked for it.[58]
[57]TS 109.
[58]TS 112.
JR was asked about whether she heard the accused say things that made her feel uncomfortable. JR said the accused told DE, in her presence, that “the best arse to fuck is between 11 and 10-year-olds”.[59] JR recalled that the accused asked DE and JM to wrestle in slime without clothes on, although he said the request was a joke. JR said she saw a lot of kid’s games at the home of the accused that appeared to focus on faeces and defecation. [60]
[59]TS 114.
[60]TS 114.
JR said that there had been two occasions on which the accused touched her without her consent. These are charged as counts 10 and 11. On one occasion JR was walking up the stairs which led to the accused’s unit, with the accused behind her. From that position, the accused tapped her bottom with an open hand twice. JR turned around and protested. The accused apologised and JR told him not to do it again.[61]
[61]TS 117.
On another occasion JR and her friend were at the accused’s unit making a TikTok video, which recorded them dancing to music. Once the dance was finished, JR moved out of the kitchen. As she walked past the accused, the accused tapped her bottom.
The video that recorded the dance was tendered in evidence.[62] The recording shows the accused moving behind JR in a manner that suggests he is trying not to be seen. After JR completes the dance, she walks past his position, and has to move close to him through a narrow gap between the wall and a countertop. As she moves past him, the accused quickly reaches his hand out towards her buttocks. The recording does not show whether his hand connected with JR or not, although the video alone supports the inference that touching her buttocks was his intention.
[62]Exhibit P4.
Count 9 on the Information charged the accused with supplying cannabis to JR. This related to a specific occasion when JR said she was supplied cannabis following an occasion when she became agitated and broke his window. The accused gave her a bag of what she believed to be cannabis. She chopped the cannabis, mixed it with tobacco and then smoked it.[63] JR said the substance made her body feel tingly, shut down and nauseous. She said “it looked like weed but it didn’t at the same time, because it was more like, it looked more herbal than weed but I was still feeling like I needed a bong at the time, so I was like stuff it, just smoke it I guess but then after that I had that one cone I chucked it straight in the bin because I did not want any more of it.” JR said the effect of the substance was not like any cannabis that she had before.[64] It is alleged that the substance supplied was synthetic cannabis.
[63]TS 123.
[64]TS 123.
JR said that the visits to the accused came to an end when he said that she and DE were no longer welcome there.[65] That occurred a week or two prior to the accused being arrested on these allegations.[66]
[65]TS 135.
[66]TS 136.
Evidence of JM
JM was born on 31 January 2009. At the time of the events alleged he was 11 years of age. JM did not give any evidence in person at trial. His evidence was placed before the court by the tender of an interview conducted on 1 May 2022 with Detective Arnold, a prescribed interviewer.[67] No application was made by either party to further examine or cross examine JM.[68]
[67]Pursuant to the Evidence Act SA 1929 s13BA, Exhibit P7.
[68]Evidence Act SA 1929 s13BA(5).
By consent, a second interview conducted by Detective Arnold with JM was tendered. This interview was conducted on 1 December 2020 and therefore pre-dated the evidentiary interview. The statements contained within this interview were tendered as out of court statements which were relevant to the credibility and reliability of the contents of the evidentiary interview P7. I have not relied on statements made by JM in this interview for the truth of them, as the interview was not conducted in circumstances which satisfied the Evidence Act s 13BA.
I direct myself that the law permits the evidence of a child of JM’s age to be placed before the court by the tender of a recorded interview conducted in prescribed circumstances. I have not drawn any inference against the accused from the admission of the evidence in that form, nor have I allowed that process to influence the weight I am prepared to place on that evidence.
JM’s evidentiary interview was conducted in a room at the Cavan Training Centre, a youth detention facility. At an early stage he told Detective Arnold “I just wanna get this over with so I can go back to the unit”.[69] Towards the end of the interview he appeared impatient and asked Detective Arnold “anyway, can I go now”.[70]
[69]P7, MFI P8 at 5.
[70]P7, MFI P8 at 24.
JM said that the accused left illicit drugs on a table and he and DE would take them. JM said he smoked the ‘crack’ that he obtained through a pipe. JM initially said drugs were never given to him or DE, but they took them from the accused.[71] Later JM told the interviewer that there was a couple of occasions on which the accused gave him methylamphetamine.[72] JM was keen to explain to Detective Arnold that he tipped the drugs supplied by the accused out of the bag to check that the accused had not adulterated them with anything. He said he did that because he thought the accused was a “creep”, liked touching up kids and might “manipulise [sic] me while I am asleep”.[73]
[71]P7, MFI P8 at 10.
[72]P7, MFI P8 at 15.
[73]P7, MFI P8 at 13.
JM was asked about whether the accused had ever touched or tried to touch him. JM described an occasion when the accused “tried touching my leg”. JM described the accused touching his thigh before he pushed his hand off and said, “fuck off ya creep”. JM told the interviewer that he had told the accused before not to touch him.[74] This evidence is the basis for count 13, indecent assault against JM.
[74]P7, MFI P8 at 14-15.
JM said that on one occasion the accused asked him to give him his underpants in exchange for “a point”, meaning between 50 and 100 dollars’ worth of methylamphetamine.[75] JM had seen the accused smelling children’s clothes, but he never supplied him with a pair of his underpants.[76]
[75]P7, MFI P8 at 19-20.
[76]P7, MFI P8 at 20.
JM was questioned about similar topics in the earlier interview on 1 December 2020. Questions were asked by Detective Arnold in circumstances that did not satisfy the statutory requirements for admission pursuant to section 13BA of the Evidence Act. JM was spoken to at the City Watch House. It was apparent that he had been picked up by police in the city and the opportunity was taken to speak to him. He was emotionally heightened and highly defensive.
JM was only 11 years of age but was living what Detective Arnold described as the lifestyle of a ‘street kid’ using illicit drugs, associating with people much older than him and often being absent from his care placement. During the interview JM was concerned to present himself as tough, streetwise and independent. He was defensive about any suggestion he had been preyed upon or victimised and was guarded about showing any vulnerability or fear to police. At times his language was inappropriate, and he behaved in an aggressive manner.
During that conversation JM denied that the accused had ever given him illicit drugs. He denied that the accused had ever touched him inappropriately, although he consistently described him as a paedophile. He became agitated when he was told that carers from his residential care home had attended the police station to take him home. He told police that he had been led to believed that if he gave a statement he would be “off missing persons” and free to leave. He expressed anger that “you cunts have gone back on your word”.[77] These statements are relevant to JM’s state of mind and motivation for participating in the interview process.
[77]P14.
The statements made in this interview cannot be used as evidence, as the interview does not satisfy the statutory pre-conditions for admissibility pursuant to section 13BA of the Evidence Act. The statements can be used as out of court inconsistent statements which have the capacity to undermine the credibility and or reliability of the evidence admitted pursuant to section 13BA in the prescribed interview.[78]
[78]P7.
JM’s living circumstances were complex. He had an antagonistic attitude towards the police and appeared unmotivated to co-operate. At the time of the interviews, he was still only 11 and 13 years old, respectively. He was highly defensive about any information which might paint him as vulnerable or victimised.
His motivation for speaking with the police on each occasion is difficult to accurately discern. His demeanour makes it difficult to assess the credibility and reliability of his answers. The evidence provided in the interview conducted on 1 May 2022 is seriously undermined by the statements made in the interview on 1 December 2020.
In all the circumstances, I have determined that I am unable to rely at all on the evidence contained within Exhibit P7. It is not sufficiently reliable for me to draw any conclusion for or against the accused from it. I have therefore disregarded the evidence in P7 in the course of reaching my verdict.
Counsel for the accused asked that I have regard to some of the material contained within the interview P14 as inconsistent with, and therefore undermining of, the evidence of the witness DE. Statements within P14 have the status of out of court statements only, and do not have the evidentiary capacity to undermine the sworn evidence of DE. For the reasons I have outlined above, I do not consider the material from JM which has evidentiary capacity should be given any weight.
I therefore find the accused not guilty on count 13 which relies on the evidence of JM. I have not used the evidence of JM for the purpose of supporting or undermining the evidence of DE or JR, or to support any propensity purpose relating to the supply of drugs, the making of sexualised comments in the presence of children, or his interest in or possession of children’s underpants or faeces.
Evidence of Mr McNickle and Mr E Snr
Mr McNickle and Mr E lived at the Carrington Street units during the relevant period. Each man provided background evidence that was relevant to the circumstances and behaviour of the accused.
Mr McNickle heard the accused make a statement that he “liked boys” who were aged between 8 and 11.[79] The comment was made in the context of sexual matters. Mr McNickle said that the accused asked him where he could purchase ‘gear’, making a motion of injecting.[80] Mr McNickle said he saw the accused in possession of cannabis and white powder on one occasion when he attended at his house.[81]
[79]TS 198.
[80]TS 199.
[81]TS 203.
Mr McNickle said that he observed JR and DE attending the accused’s flat. They also visited and stayed at his flat from time to time.[82] Mr McNickle said the accused had frequent visitors to his unit, both children and adults.[83]
[82]TS 201.
[83]TS 202.
Mr E is DE’s father. In 2020, following his release from prison, he moved in with Mr McNickle, and slept on his lounge.[84] In this context he came to meet the accused on a few occasions. On one of those occasions the accused made sexualised comments towards him (that he had a “nice bulge”) and Mr E struck him with his fist in response.[85]
[84]TS 218.
[85]TS 219.
Mr E said that on a couple of occasions he “took drugs off” the accused. He explained that he meant that he became aware that the accused had drugs for sale, and he made him hand the drugs over to him without making any payment.[86] He said he did this because he “didn’t agree with the way he was”, referring to the accused.[87] Mr E gave an explanation from which I infer he meant he did not agree with the accused’s homosexuality.[88]
[86]TS 220.
[87]TS 220.
[88]TS 220.
Mr E heard the accused make sexualised comments towards DE and JM, including telling them “you’ve got a nice little arse”. He described the comments as joking around.[89]
[89]TS 221.
The Investigation
The Investigating Officer Detective Arnold attended the accused’s unit on 18 September 2020 at approximately 4.30 pm. DE and JR were leaving the units at the time she arrived. When Detective Arnold entered unit 12, police were already present, and a search had commenced. The search was completed a short time after Detective Arnold arrived. Detective Arnold was made aware of a plastic bag in the bathroom vanity which contained what appeared to be faeces or perhaps mushrooms.[90] The bag was tied at the top and Detective Arnold did not detect any particular smell from the bag, although she observed that the unit more generally “did not smell too great”.[91]
[90]TS 230.
[91]TS 230.
The following day, 19 September 2020, DE was interviewed. After receiving information from DE during that interview, Detective Arnold attended the accused’s unit and arrested him. A mobile telephone was seized from his possession. A laptop computer from alongside his bed inside his bedroom was also seized.
The Accused’s Interview
The accused was interviewed on 19 September starting at 10.27 pm. Although he was cautioned that he was under no obligation to do so, he answered questions asked of him. The accused was asked about his knowledge of, and contact with, DE. He claimed that DE had been to his unit approximately three times, each time in company with JR, and each time when one of them had been hurt in some way.[92] He denied that DE had ever attended his house with anyone apart from JR. He explained that he had lived on the street when he was younger and as a result tried to assist people in similar circumstances.
[92]P5, MFI P6 at 9.
The accused told police he was homosexual and lived with HIV. He said he was open about those aspects of his life and had talked to DE about being a gay man, as a result of questions that DE raised with him.[93] He declined to elaborate on the detail of those conversations, referring to his obligation of confidentiality as a counsellor.[94]
[93]P5, MFI P6 at 8.
[94]P5, MFI P6 at 17.
The accused denied allegations that he indecently assaulted DE at the unit. He denied that JR would ever be permitted to walk around unsupervised in his unit, because he did not trust her. He denied that he ever supplied illicit drugs to DE, although he said that DE had attended his unit while under the influence of drugs.
Although the accused initially told the police DE had never attended the unit in company with anyone except JR, he went on to tell police that JM had attended with DM.[95] He alleged that JR had assaulted him several times when she attended his unit, and had also attempted to assault JM.
[95]P5, MFI P6 at 15.
The accused was asked about the allegations that he had made sexual comments to DE, including the reference to ‘cream pies’. The questions caused the accused to giggle and say “um … so yes, pies have been very important I think in my life, the last few years”.[96] The accused later told the police that a pie referred to a sexual act involving defecation, describing the act as “a lotta fun if you like that sort of thing”, offering to the interviewing officer to “do that here now if you want to”.[97] The accused was asked about whether he had a fetish about faeces and he denied that was within his sexual appetite.[98] The accused denied allegations that he asked DE to provide faeces to him.
[96]P5, MFI P6 at 24.
[97]P5, MFI P6 at 30,31.
[98]P5, MFI P6 at 8 at 33.
The accused told the police that during the relevant period he was assaulted by DE’s Mother and DE’s Father. He said he believed he had been set up, including someone planting a bag of faeces in his unit for police to locate.[99] In response to specific questions on the topic, the accused told police he believed that DE may fabricate a story at the behest of his Father with the aim of making a claim for criminal injuries compensation.[100]
[99]P5, MFI P6 at 45.
[100]P5, MFI P6 at 26.
The accused presented as an unusual man. His answers sought to minimise the nature and extent of the contact he had with DE and JR. He denied that he asked DE questions of a personal nature or discussed his sex life with him. I do not accept that account. The evidence of both DE and JR supports the conclusion that the accused spoke freely about sexual matters in their presence.
I do not accept that the relationship between he and DE was limited to 2 or three visits to his unit. On the basis of evidence that I accept from DE and JR, I consider that the visits were far more frequent.
The accused was asked about his interest in coprophilia. He was told that DE alleged that the accused asked him to defecate and provide him with the faeces. The accused expressed disgust at the idea and said, “this is disgusting, this is just rubbish, this is all over the top …”.[101] When asked directly if he had a faeces fetish, the accused said “my sexual desires and interests don’t involve um … what you’ve been talking about. No, not at all.”[102] For the reasons I will outline later when dealing with the topic of the accused’s proclivity for coprophilia, I do not find this answer was honest.
[101]MFIP6 at 30.
[102]MFIP6 at 32.
The accused was asked the allegation that he had offered DE money in exchange for sex. He said “yeah, don’t need to do that. Don’t – I’m not in that position. I don’t need to do that at all. It’s like this is, this is clearly as some, some witch hunt, sorry”.[103]
[103]MFIP6, at 30.
The messages that I am satisfied the accused sent others using the social media application Grindr show that this broad answer was a lie. In a number of Grindr messages, the accused offers cash and drugs for sexual activity. I do not use those messages as propensity to exchange money and drugs for sexual activity, but they demonstrate that the accused was dishonest on the topic of whether he needs to exchange money or drugs for sexual activity in his interview with the police.
Defence counsel submitted that the version of events given by the accused in his police interview is consistent with innocence. He submitted that his lie about coprophilia should be given limited weight given the embarrassment that would be naturally associated with admitting such an interest. The accused did not present as someone who was ashamed or embarrassed about sexual topics. He joked about the sexual act described as ‘a pie’ and spoke freely about his sexual experience and interests. I consider that his answers to questions about coprophilia were part of a general pattern of distancing himself from DE, JM and JR and distancing himself from the allegations made.
I do not find that the accused was honest or forthright when he spoke to the police.
The accused was asked why DE would fabricate allegations. I am mindful of the restrictions on the asking of questions of that kind in a trial context.[104] The absence of a motive to lie is generally irrelevant to the process of analysing the evidence. However, if a motive to lie is advanced, I am obliged to analyse the plausibility of that motive.
[104] R v Palmer (1998) 193 CLR 1.
The accused told the police that the allegations could have been made at the behest of DE’s father to obtain criminal injuries compensation. He says, “that’s the sort of scumbag [Mr E] is.”
I do not accept that the suggested motive to lie is plausible. Such a motive was not put to either DE, JR or Mr E, so I do not have the benefit of their response to such an allegation. It is true that Mr E and Gordon McNickle exhibited a degree of animosity towards the accused, and there is evidence that Ms VS (DE’s mother) and Mr E used violence against him to steal his drugs. The circumstances suggested they were prepared to exploit the accused’s vulnerabilities and idiosyncrasies to get what they could from him.
However, the evidence of DE and JR was plausible and restrained. DE did not make grand claims about being the victim of sustained abuse. Rather, he appeared guarded about the extent of the abuse and reluctant to disclose that he had been victimised in any way. Against the background of the unusual circumstances of the relationship between DE, JR and the accused, the allegations were plausible and rang true. Mr E’s evidence did not contribute significantly to the case against the accused as one might expect if the allegations were fabricated at his instigation.
I reject as a reasonable possibility that the allegations were fabricated in the hope of a financial reward. I draw no inference against the accused for having suggested a potential motive that I do not find plausible. I do not conclude that the absence of a motive to lie provides any weight at all to the evidence led from the prosecution witnesses.
Electronic Evidence
Two categories of electronic evidence were relied upon in support of the charges. The first was a number of child exploitation images saved on electronic devices seized in the course of the investigation. Possession of those images is charged as counts 14 and 15 on the Information. The possession of the images is also relied upon by the prosecution as establishing that the accused had a specific sexual interest in male children and a propensity to act on that interest.
The second category is evidence of a series of messages alleged to have been sent by the accused to other users of an electronic application called Grindr.
Child Exploitation Images
The child exploitation images were located stored on the laptop seized from the accused’s unit on 19 September 2020. Photographs taken of the unit at that date were tendered as exhibit P 3. The laptop is visible positioned on top of a pile of other material next to a double bed in the upstairs bedroom, a bedroom occupied by the accused.
Stored data from that laptop was extracted by a qualified police officer based at the SA Police electronic crime section. The extracted data was then examined by Detective Arnold to identify whether there was material of relevance to the investigation contained on the device. Detective Arnold gave evidence about data she identified as relevant to her investigation by reference to a spreadsheet tendered as P 9. Various web address locations were identified within data on the seized laptop, each associated the username ‘Max’.[105] Various web site titles referred to sexualised themes, including abuse of children. Detective Arnold was not able to check what content could in fact be accessed via those links.[106]
[105]TS 258.
[106]TS 248.
Electronic copies of videos were located stored on the laptop in an area accessed through the pathway C Drive – Users – Max Videos.[107] Four videos were identified that the prosecution alleged met the definition of child exploitation material. They were identified from among between 100 and 200 videos that Detective Arnold examined.[108] Among the videos which did not contain child exploitation material Detective Arnold identified videos which contained coprophilic themes within adult pornography.[109]
[107]TS 253.
[108]TS 257.
[109]TS 261.
Senior Constable Matchett from the electronic crime section gave evidence about the way in which the 4 charged videos might have come to be stored on the laptop. He said that while the videos were saved in a folder on the C drive, that did not mean that they had necessarily been deliberately downloaded.[110] Senior Constable Matchett could not comment on whether the videos had been accessed or watched from that folder. Neither could he exclude the possibility that computer malware had caused the videos to download without the accused’s knowledge.[111]
[110]TS 329.
[111]TS 345.
In respect to some of the links that contained titles which referred to child exploitation material or coprophilic material, Senior Constable Matchett could not necessarily say that information was stored on the laptop because the websites had been accessed.[112] Some of the data had information associated with it that suggested they were links that had been accessed.[113]
[112]TS 333.
[113]TS 333-334.
Grindr Messages
A printout of various Grindr messages located during the electronic analysis was tendered as P 13. Grindr is a social media application which focusses on the gay, lesbian, bisexual and transexual community (LGBT).[114] Each message bore a date stamp, the most recent being 18 July 2019, and the oldest 15 August 2019. It is relevant to note that the messages were retrieved from a telephone which was seized from the accused in October 2019 during an unrelated investigation. The messages were sent under a username “maxinthecity”. They are linked to the accused by being stored on a phone seized from him, and the fact that a number of the messages identify him by reference to his home address and a mobile telephone number registered to him.[115] I am satisfied on the basis of those circumstances that the messages were sent by the accused using the Grindr application.
[114]TS 308.
[115]TS 307.
The prosecution relied on two aspects of the messages send by the accused. The first was an expressed willingness to exchange illicit drugs for sexual acts.[116] The second was messages sent that indicated an interest held by the accused in sexual activity involved faeces, defecation and stained underpants.[117] The prosecution argued that these messages evidenced a proclivity for sexual activity involving faeces, and a sexual interest in others defecating for him (coprophilia).
[116]P13 p28-29; 31-32; 199-200; 226-227.
[117]P13 p66 – 67, 95-97; 161-175; 192; 214; 219; 224-227.
In respect to the first articulated use, the prosecution contended this was relevant to the assessment of DE’s evidence that the accused offered him drugs in exchange for sex, and that he supplied synthetic cannabis to him.
The second articulated use was to prove that the accused had a sexual interest in activity involving faeces and defecation, and a propensity to act on that interest. In the alternative, the evidence could establish an appetite for a particular type of activity which provides a motive for the conduct alleged.[118]
[118]R v Turney (1990) 52 SASR 438 at 439 per King CJ.
The prosecution relied on improbability of account reasoning in respect to the first use.[119] To be used in this way the evidence must satisfy section 34P(2)(a) of the Evidence Act. Its probative weight must outweigh any associated prejudice. In R v Heinze (concerning the admissibility of pornography with images of rape and bondage similar to the acts alleged to have been perpetrated on the complainant) Kourakis CJ made the following observation:
The rape pornography evidence as a foundation for improbability of fabrication use does not rely on a finding that the appellant did have a propensity or proclivity to act out the images he enjoyed viewing. A person may derive a prurient interest in viewing material of a particular kind without harbouring any desire to replicate it. Of course, in this case, an acceptance of Ms F’s testimony exposes the appellant to have precisely that propensity. However the improbability of fabrication use put against the appellant in this case relies on only these steps:
(a)There is a very wide range of detail which a person fabricating an account of rape might include in describing how the attack was perpetrated;
(b)Using a rope to bind the victim’s hands and her clothing in an attempt to gag her, is a particularly peculiar account to fabricate;
(c)Very few people have a prurient interest in viewing rape pornography of the kind found on the accused’s devices;
(d)The possibility that Ms F fabricated a peculiar account of rape against one of the very few people who had an interest in viewing rape pornography strikingly similar to her account is extremely low.
…..[N]one of the steps relies on a finding, or premise, that the appellant had a tendency or even a strong desire to carry out rapes of that particular kind”.[120]
[119]R v Heinze [2017] SASCFC 155 [24]-[40] per Kourakis CJ.
[120]Ibid at [34].
The prosecution submit that the accused’s offers via Grindr to exchange drugs for sexual activity is capable of supporting the evidence of DE that the accused made similar offers to him, on the basis of the improbability of DE fabricating an allegation which included that detail when the accused had expressed an interest in an exchange of the same type with others. Exchanges with Grindr users included sexual offers of “$100 plus gear”[121], “Use gear … hows $50 and a good point”,[122] “Q: will you cum play for $50 … A: y said bfr 100 … Q: have got a lot left frm pension shout ya some smoko and gear if ya like”.[123]
[121]P13 at 32.
[122]P13 at 199.
[123]P 13 at 200.
Whether the evidence is capable of grounding this line of reasoning depends on the extent to which there is a genuine inexplicable consistency in the nature of the complaint made by DE and the accused’s interests evidenced in the Grindr messages.
It is necessary to analyse the environment within which these allegations were made to properly assess that question. The evidence demonstrates that the accused was a user of cannabis and methylamphetamine during the relevant period. He made no secret of his use of those drugs, even with the children who spent time in his company.
The accused also openly discussed sexual matters in the presence of adult neighbours and children. Counsel for the accused aptly described the evidence in his closing address as “he didn’t have a filter, that’s quite clear”.[124] The accused’s unusual behaviour during the interview with police is consistent with the evidence on this topic generally. As noted earlier, at one stage of the interview the accused giggled and offered “we can do that now if you want” inappropriately, but jokingly, referring to certain coprophilic sexual acts that the police officer was interviewing him about.[125]
[124]TS 420.
[125]MFI P6 at 30.
I do not consider, when analysed against the background of the highly unusual environment created by the accused at his unit, that the coincidence in the account of DE and offers made by the accused via Grindr has any real probative value. It is entirely plausible that DE came into information about the accused’s sexual offers to others from discussions or statements made in his presence. Against that background, I have considered whether the hypothesis that DE fabricated or otherwise imagined his account, in light of the Grindr messages, is so improbable as to make the probative weight of the evidence outweighs the prejudicial effect it may have on the accused. I am not so satisfied, and I do not use the evidence of the Grindr messages referring to exchanging illicit drugs for sexual activity in that way.
In respect of the second potential use, the accused’s references to coprophilic activities, it is necessary to identify whether the references to coprophilic behaviour is evidence which comes within the definition of discreditable conduct for the purposes of section 34P.
In R v Turney, King CJ observed that:
I think that there are dangers in extending the exclusionary rule beyond the area of evidence disclosing the commission of a criminal offence or a disposition to commit a criminal offence. In our plural society, what is discreditable may be a matter upon which opinions differ. This is particularly true in sexual matters.[126]
[126](1990) 52 SASR 438 at 441 per King CJ.
These comments were referred to by Kelly J in R v Kirkland, where Her Honour observed that:
there are many and varied sexual practices engaged in in the course of adult consensual sexual relations….I acknowledge that by the enactment of section 34P of the Evidence Act, the exclusionary rule has been extended to include discreditable conduct, whether or not it constitutes an offence. However the point I make is that this court should be slow to unnecessarily extend that rule to include practices engaged in between consenting adults of the kind referred to in this case.[127]
[127]Kirkland v The Queen [2021] SASCA 14 at [91] per President Kelly.
I do not consider that sexual behaviour indulging a sexual interest in coprophilia between consenting adults is discreditable conduct for the purposes of s 34P of the Evidence Act. None of the evidence contained within the Grindr records suggest that the requests were made to children. The test for the admissibility of the evidence of the accused’s interest in coprophilia falls to be determined according to the ordinary principles of proclivity evidence, including whether it is more prejudicial than probative.
As Lovell J observed in R v Kirkland, proclivity reasoning can be used to provide confirmation that an accused person engaged in (or, in this case sought to procure) sexual activities of a particular kind.[128] It is necessary, however, to be cautious about engaging in proclivity reasoning in respect to sexual allegations. In R v Turney, evidence about the accused’s participation in anal and oral intercourse was not considered to provide motive to engage in that activity which was much higher than that provided by evidence of a general sexual appetite.[129]
[128]Ibid at [143] per Lovell J.
[129]R v Turney.
I consider, however, that the evidence in this case of coprophilic interests is sufficiently distinctive and uncommon as to carry probative weight on the question of whether the accused made the requests alleged, and what intent accompanied the requests.
The Grindr messages include references to the accused being interested in “all things ass … most taboos even No 2 with the right guy [accompanied by various emojis including a pile of faeces and a banana]”[130] and “I like my boys full when they arrive with well soiled undies preferable white … if ya ass is hot do a poo for me and can use for lube”.[131] He refers to paying “straight boys to part with there [sic] undies”[132]; “would you do a [faeces emoji] for me [wink emoji] eat like 6 weetbix breakfast and lunch and you’ll have a good solid come Thursday”.[133]
[130]P13 at 95.
[131]P13 at 96.
[132]P13 at 97.
[133]P 13 at 225.
I am satisfied that the accused during the latter part of 2019 did have a sexual interest in faeces and defecation. I am satisfied that that time period was sufficiently proximate to the charged period to make that proclivity relevant and probative of the allegations. I consider it a piece of circumstantial evidence relevant to proof of counts 4 and 8, and not subject to any exclusionary principle.
If I am wrong about that, I would nevertheless admit the evidence. In my view the evidence of an interest in coprophilia satisfies the requirements of section 34P(2)(b) and 34P(3).
Evidence Analysis
At the time he gave his evidence DE was 17 years of age and still living under the guardianship of the Chief Executive of the Department for Child Protection.
He gave evidence with the support of a court companion and the court was closed.[134] I direct myself that I may not draw any inference adverse to the accused from the making of those arrangements, and I must not permit it to influence the weight to be given to the evidence given by DE.
[134]Evidence Act section 13A and section 69.
DE gave evidence in a straightforward way. He gave considered answers to the questions asked and was honest about his own shortcomings. He did not give the impression of deliberately understating or overstating his memories of the accused’s behaviour.
DE’s evidence of the accused’s regular references to sexualised topics, and coprophilic activities was corroborated by the evidence of JR and the evidence contained within the Grindr messages where similar proclivities were expressed.
In cross examination, DE agreed that he frequented the accused’s unit for a limited period between 23 July 2020, after his father Mr E was released from prison, and 19 September 2020, when the accused was arrested. DE agreed that during that period he had a poor relationship with the police and was regularly avoiding their attention. He agreed that he had begun consuming cannabis, methylamphetamine and alcohol prior to meeting the accused.[135] He did not suggest that it was the accused who had introduced him to those substances. When asked in cross examination why he went to the accused’s unit, DE said “for drugs”.[136]
[135]TS 57.
[136]TS 59.
DE was unable to recall with any precision who was in the unit on any of occasions he was indecently assaulted by the accused. He was unable to recall many of the peripheral details associated with those assaults.
In cross examination, a number of inconsistencies between evidence given by DE and statements made by him to police concerning two incidents alleged to have occurred on the accused’s sofa were identified. DE gave evidence that on each occasion he did not recall if JR was present at the unit. DE agreed that he had told the police that on the occasion that the accused tried to bite his neck JR was at the unit and had left the lounge area to make him some food. DE agreed that he told the police that the following day JR slapped the accused to the face.
Confronted with those inconsistencies, DE told the court that he recalled what happened, but he did not have a good memory of who was in attendance at the unit.[137]
[137]TS 66.
DE was asked about further details he told the police about the same incident. He agreed he told the police that when the accused pinned him down on the couch and tried to bite his neck, JR came into the lounge to ask if he wanted sauce on his food. JR then pulled DE off the accused. She told the accused to “never to touch my fucking boyfriend again or I’ll bash the shit out of you”.[138] DE said he now had no recollection of that aspect of the incident.
[138]TS 69.
DE was then cross examined about the incident where the accused was alleged to have grabbed his genital area with his hand. DE said that a man by the name of Brendan who was often at the unit was ‘probably’ present. Brendan did not say or do anything, and DE said he did not complain to Brendan.[139]
[139]TS 70-71.
DE gave evidence of a third occasion of indecent touching which occurred in the accused’s bedroom at a time they were consuming drugs. DE did not mention this incident to police when he was interviewed on 19 September 2020.[140] He was unable to explain why he had not done so but disagreed that the incident was something he had invented or exaggerated later.[141]
[140]TS 73.
[141]TS 73.
DE described an incident referred to as ‘the handstand incident’ when he alleged that the accused cupped his genital area with his hand at a time he was doing a handstand. DE agreed that he had not told the police about that incident at any time prior to the trial. It is relevant to note that JR gave evidence that she had witnessed this indecent assault. DE was unable to recall who was in the unit at the time of the incident, observing that “I really don’t know who was there, because, as I said, everyone was there at different times … heaps of people come through his house all the time”.[142]
[142]TS 75.
Finally, DE gave evidence that the accused attempted to put his finger into his anus (although he said he was clothed at the time). DE agreed that the first time he had disclosed that the police was the third time that he was interviewed, on 10 November 2021. DE explained that he did not mention it earlier because he remembered it later, and that there was a lot that went on at the unit.[143]
[143]TS 76.
Counsel for the accused submitted that DE’s evidence lacked any peripheral detail which would anchor the allegations and support their reliability and credibility. He argued that in light of the denials of the accused in his interview with the police, DE’s evidence of sexual offending could not be accepted beyond a reasonable doubt.
DE’s evidence was supported in material respects by JR who witnessed the handstand incident and heard the accused make requests of DE for faeces. As outlined earlier, I am satisfied that the accused had a sexual interest in faeces and defecation, and this bears on the probability that he made the requests alleged by DE.
Defence counsel argued that it was illogical that DE continued to attend at the accused’s house if he was being sexually abused there. He argued that DE was not a young man who would submit to activities that did not suit him.
This submission needs to be viewed against the evidence of DE and JR, that the accused represented himself as in possession of illicit drugs, and prepared to supply them. DE and JR were each users of illicit drugs and being around the accused was the price they were prepared to pay for that access. The accused’s home was a place that DE and JR could stay together, avoid police attention, and avoid DE being returned to his unsatisfactory care placement. I do not consider it implausible that DE and JR continued to return to the accused’s unit despite warnings that he was a paedophile, and despite his sexualised behaviour.
I do not consider that the inconsistencies in DE’s evidence, and the deficits of his memory for some of the surrounding detail mean his evidence lacks credibility or reliability. DE’s life during the relevant period was unstructured and disorganised and he was regularly under the influence of drugs. Many people moved through the accused’s unit at different times. I do not consider the lack of detail and a level of confusion about the precise circumstances undermine his evidence or the impression I had that his evidence was honest and reliable in the important respects.
It is important to note that a number of the matters which were pointed out as inconsistencies were in fact failures to recall details in evidence which were provided to the police closer to the time of the events alleged. This reflects a loss of memory for the detail as time has passed and, in my view, does not detract from my overall impression that DE was truthful and reliable as to the matters he spoke about in his evidence.
JR was 18 years of age at the time she gave her evidence. She was still in a relationship with DE, and she worked part time at a hotel. It was clear from her evidence that she had an antagonistic relationship with the accused throughout the relevant period, and she attended his unit for the purpose of protecting DE and JM from him.
JR said that some of the details from that time were ‘blurry’. She had difficulty being precise about times and dates, saying that she had a lot of things going on at the same time.[144] JR agreed that her visits to the accused came to an end when he kicked her and DE out of his house. She said that the accused had complained that she and DE were eating all his food, invading his space and wasting his time.[145]
[144]TS 137.
[145]TS 182, 134.
JR gave her evidence in a straightforward way. She admitted that she had assaulted the accused on more than one occasion and had damaged his property. JR said that asking the accused was the “easiest way for me to get weed and he would always supply it”.[146]
[146]TS 108.
JR was cross examined about inconsistencies between her evidence and police statements she had made earlier. In her evidence, JR said that after the accused slapped her bottom when she was at Mr McNickle’s house (the TikTok incident) she did not say anything to the accused about his actions. She said in evidence that she did not do so because all she wanted to do was to find DE because she did not feel safe.
JR agreed that in describing that incident in her statement she had said that she had said “don’t do that” and the accused apologised.[147] JR said that the aftermath of the incident was very blurry and she now believed that she did not say anything to the accused because she was too frightened.[148] She said that the aftermath of the incident was now “all blurry” in her memory.[149] She did recall that she used MDMA, an illicit drug, that evening after the incident. She did not mention that detail in her statement to police.
[147]TS 158.
[148]TS 158.
[149]TS 158.
JR was cross examined about the allegation that the accused tapped her buttocks as she walked ahead of him up the stairs to his unit. She thought that the incident had occurred after the TikTok incident, although she again described the order of things as “just blurry”.[150] After this incident JR said she threatened to kick the accused down the stairs if he repeated the conduct. He did not touch her again.[151]
[150]TS 164.
[151]TS 165.
I conclude that JR was an honest witness. There were gaps in her memory that she openly admitted to, and she gave her evidence in an open and straight forward way. She was a young woman whose behaviour was influenced by her care for JM and DE, and her loyalty towards DE in particular. The inconsistencies exposed in her description of the TikTok incident were not of particular weight in light of the audio-visual recording of the incident tendered in evidence. Like DE, she exhibited confusion at times about specific time frames and the presence or absence of certain people. I do not consider those deficits affect her credibility or reliability on the critical matters, and were readily explained by the circumstances that she was living in at the time, including her use of illicit drugs, and the lack of structure in the way she used her time each day.
Both Mr E and Mr McNickle exhibited antagonism towards the accused. Both of them gave evidence that supported the conclusion that the accused, from time to time, was in possession of illicit drugs. This conclusion is supported by other evidence and I accept their evidence in this regard.
I accept Mr E’s evidence that the accused made sexualised comments towards DE. His evidence is consistent with DE’s. I have not used that evidence as evidence of sexual attraction, but as relevant to whether the accused established a sexualised environment at his home in an attempt to groom DE.
Discreditable Conduct Evidence – analysis and use
The allegation that DE was sold
In cross examination, DE said that he first met the accused when he was taken to his Carrington Street unit and offered to him in exchange for drugs. DE’s mother, Ms VS, gave evidence about that topic. Ms VS met the accused through Mr McNickle. She came to believe that the accused had offered to supply a point of methylamphetamine in exchange for access to DE. According to Ms VS, she took DE to the accused’s unit to confront him. Ms VS said the accused confirmed that he was offering drugs in exchange for access to DE. Ms VS then assaulted the accused in the presence of DE.
Ms VS said she told DE to stay away from the accused, warning him that he was a paedophile, and that he had offered drugs to have sexual contact with him.[152]
[152]TS 271-272.
It is important to identify the permissible and impermissible uses of this evidence.
Evidence that the accused offered drugs in exchange for sexual contact with a child is discreditable conduct. The prosecution did not rely on the evidence as having any permissible propensity use.
In my view, the evidence is relevant only as the background to Ms VS’s words of warning to DE, to stay away from the accused, and that he was a paedophile. The fact that DE was cautioned in this regard is relevant in assessing his subsequent actions of returning to the unit against the background that he claimed he was indecently touched, and the accused made inappropriate sexual statements to him.
I have not used the evidence alleging that the accused attempted to exchange drugs for sexual access to DE in any other way.
The allegation that the accused used, sold and supplied illicit drugs to others
Mr McNickle, Mr E and Ms S each gave evidence that they had seen and or heard the accused refer to being in possession of drugs for sale or supply on occasions other than the charged occasions. DE and JR gave similar evidence. There was evidence that the accused used cannabis and methylamphetamine in the presence of adults and children. The prosecution also led evidence that the accused admitted that needles and a sharps container would be located in his unit when it was searched, supporting an inference that the accused was a user of illicit drugs.[153]
[153]TS 230. Facts were agreed that cleaners engaged to clear the accused’s unit after his arrest just over a week after his arrest located capped and uncapped needles faeces on the floor of the master bedroom, albums of adult pornography focussed on coprophilia, and small bags consistent in appearance with ‘deal bags’. As these items were located well after the accused had left the unit, and it was clear that others had access to the unit after the accused, I have placed no weight on the location of the items. JR gave evidence that the unit was ‘trashed’ after the accused was arrested (TS 144).
DE said that on the first occasion he was supplied with synthetic cannabis, the accused told him the substance was synthetic weed and would have a stronger effect on him.[164] On the second occasion, the subject of count one, DE believed that what he was supplied by the accused was normal weed. The accused did not make any representation that it was synthetic. DE said that the substance looked like “just normal weed”,[165] but the effect on him was different. He said that as a result of smoking the substance he vomited, could not move, was sweating and his head was spinning. He became frightened because he had no control over his actions.[166]
[164]TS 39.
[165]TS 39.
[166]TS 39.
JR also gave evidence of occasions on which the accused supplied her cannabis. JR said she was a heavy user of cannabis at the relevant time and was frequently given small amounts of free cannabis by the accused. On one occasion she became agitated with the accused and kicked in the bottom part of a window at his unit.[167] The accused went upstairs and returned with a bag of “chopped up weed”.[168] JR thought this was unusual given that she had just had a heated argument with him. She took the substance to Mr McNickle’s house where she mixed it with tobacco and smoked it using a bong.[169] JR said:
it didn’t feel like normal weed, like it made me feel really weird like my whole body felt like it was all tingling, just felt like I wanted to shut down and I felt like I needed to vomit really badly, like nauseous feeling…..it looked like weed but it didn’t at the same time, because it was more like, it looked more herbal than weed but I was still like feeling I needed a bong at the time, so I was like stuff it, just smoke it I guess but then after that I had that one cone I chucked it straight in the bin because I didn’t want any more of it.[170]
[167]TS 123.
[168]TS 123.
[169]TS 123.
[170]TS 123.
There is nothing in the description of the effect of the substance on DE or JR that supports the conclusion that the substance supplied to them by the accused bore any relationship to cannabis in terms of its intended psychoactive effect or chemical structure. It may have had some similarities in physical appearance, but in my view, more is required for a substance to come within the definition of synthetic cannabis.
Assuming that the other elements are proved, I cannot be satisfied that the substance which is the subject of counts 1 and 9 was a controlled drug, namely cannabis or synthetic cannabis. On that basis, I am obliged to acquit the accused on counts 1 and 9.
I move to consider count 2. Count 2 alleges that the substance supplied to DE was methylamphetamine. DE gave evidence that at the relevant time methylamphetamine was his drug of choice and the accused frequently supplied him with that drug, which he would use by smoking it.[171] The prosecution particularised count 2 as an occasion on which the accused supplied DE with methylamphetamine in his bedroom when he was injecting methylamphetamine into himself, and referred to injecting having more of an effect.[172] DE said on that occasion he was “probably taking it [methylamphetamine]”.[173] Apart from the lack of clarity about whether in fact the accused supplied DE with the substance that he consumed on the charged occasion, there is no evidence from DE about what the substance he took looked like, what effect it had on him, and how that compared to the feeling he usually associated with using methylamphetamine. There is no evidence on which I could infer that the substance supplied (assuming that it was supplied) was a controlled drug.
[171]TS 37-38.
[172]TS 38.
[173]TS 38.
On that basis, I am obliged to acquit the accused on count 2.
I turn to count 3. Count 3 alleges that the substance supplied to DE was 3,4 methylenedioxymethamphetamine (commonly referred to as ecstasy, or, in this case, MD). DE gave evidence that on one occasion the accused offered him a drug he referred to as MD. DE said at that time he was prepared to use any drug, with the exception of fantasy.[174] DE told him that the drug was called MD, and that it would make him feel “sexual, happy”. DE said the drug had the appearance of a yellow crystally powder that he consumed by snorting it. He said that the substance had no effect on him.[175]
[174]TS 40.
[175]TS 40.
JR gave evidence of being in DE’s presence when they snorted a powder represented as “MD”. This had occurred at Mr McNickle’s house. I accept this was the same occasion of consuming ‘MD’ described by DE in his evidence. JR said she knew that drug also as MDMA.[176] JR had used MDMA on other occasions. No evidence was led from JR about the appearance of the substance or the effect of it on her.
[176]TS 120.
On the basis of the accounts of JR and DE, there is no evidence on which I could infer that the substance supplied by the accused was in fact a controlled drug. DE’s account that consumption had no effect on him would tend against that conclusion.
On that basis, I am obliged to acquit the accused on count 3.
In reaching those verdicts on counts 1, 2, 3 and 9, I have taken into account the evidence from adult witnesses that the accused had access to illicit drugs and used illicit drugs. I have had regard to Grindr messages sent by the accused to others where he refers to having access to ‘gear’ and ‘smoko’. I do not consider that the fact that the accused commonly claimed to have access to a range of drugs proves that what he supplied on the specific charged occasions was in fact a controlled drug.
Count 4: Maintaining an Unlawful Sexual Relationship with a Child and alternatives 5, 6, 7 and 8. (DE)
Count 4 charges the accused with Maintaining an Unlawful Sexual Relationship with a child, contrary to section 50(1) of the CLCA. The alleged victim of this offence is DE who was 14 years of age at the relevant time. This offence requires proof of four elements:
1.The accused knowingly maintained a relationship with the complainant DE.
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with the complainant DE.
3.The complainant DE was a child during the period of the relationship.
4.The accused was an adult during the period of the relationship.
For the purposes of element 2, an unlawful sexual act is defined in section 50(12) of the CLCA as being “any 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.” A sexual offence is defined to include (relevantly) an offence against Division 11 (other than s 59 and 61) or sections 63B, 66, 69 or 72 of the CLCA.
Particular 4(a) was deleted from the Information at the beginning of the trial. Particular 4(b) requires the prosecution to prove that the conduct alleged was an indecent assault, contrary to section 56 of the CLCA. Indecent assault requires proof of the following elements:
1.The accused touched the complainant.
2.The accused intended to touch the complainant.
3.The assault occurred in circumstances of indecency.
I find it proved that DE was under 17 at the time of the alleged conduct, so consent it irrelevant to proof of an indecent assault.
Particulars (c) and (d) to count 4 require proof that the conduct alleged would constitute the offence of attempting to incite or procure a child to commit an indecent act contrary to the CLCA s63B(1)(a). That specific charge is then laid in the alternative to count 4 in count 8. The completed offence has two elements:
1.The accused incites or procures the commission of an indecent act by a person.
2.The person is a child under the age of 17 years.
An attempt to commit the offence requires proof of two elements:
1.The accused intended to commit the offence.
2.The accused committed an act or acts which are sufficiently proximate to the completed offence and not merely preparatory.
Particulars (e) and (f) to count 4 require proof that the conduct would constitute the offence of making a communication with the intention of making a child amenable to sexual activity contrary to section 63B(3)(a). This charge has three elements:
1.The accused made a communication.
2.The accused made the communication for a prurient purpose.
3.The accused made the communication intending to make a person under the age of 17 years amenable to sexual activity while still under the prescribed age.
Sexual activity has been interpreted to include “the many behaviours, whether physical or verbal, which are capable of being sexually stimulating”.[177] Sexual activity is not restricted to physical activity, and sexualised talk or electronic exchanges can fall within the definition of sexual activity.
[177]R v Symons (2018) 130 SASR 503 at 506 per Kourakis CJ.
I am satisfied beyond a reasonable doubt on the basis of the evidence of DE and JR that the accused grabbed DE’s genital area on more than one occasion during the period between 1 June 2002 and 19 September 2020. The conduct on each occasion constituted an assault committed in circumstances of indecency in light of the area of the body that the accused touched.
I am further satisfied that the accused asked DE to perform indecent acts involving faeces on more than one occasion.
Counsel for the accused submitted that the accused clearly “didn’t have a filter”, in terms of his generalised lack of discretion about discussing sexual matters. I accept that this evidence makes it necessary to carefully consider the circumstances in which the charged utterances were made, to exclude as a reasonable possibility that the accused was joking, or attempting to shock, or had some other non-criminal motivation for making the statements alleged.
It is relevant that the accused was persistent about his requests for DE to defecate on him, or defecate in circumstances which would enable DE to provide his faeces to him.[178] The persistence of the requests tends against the conclusion that the accused was joking, or attempting to shock. I consider that the evidence that the accused had a proclivity for coprophilic sexual activities also informs this question. I am satisfied beyond a reasonable doubt that the communication was made, and that by making the communication the accused was attempting to incite or procure DE to commit the acts referred to.
[178]Count Four, particulars (c) and (d).
I turn to consider whether the acts referred to are indecent acts. Whether an act is indecent is a question for the finder of fact, having regard to the standards of right thinking members of the community. An indecent act need not be sexually indecent, but may also be an act which an ordinary person would find shocking, disgusting or revolting. The context of the act is relevant to whether it can properly be characterised as indecent.
I find that the request to have DE defecate onto the accused was an attempt to incite or procure an indecent act. The act of defecating onto another is an indecent act according to common community standards. Similarly, I find that the act of defecating onto a plate so that another person can access the faeces is an indecent act.
I have considered whether the act of defecating in the toilet, and deliberately leaving the faeces in the bowl is an indecent act, in all of the circumstances, including the indecent motive of the accused, is properly characterised as an indecent act. The reference to leaving the faeces in the bowl for him is an important feature of the act incited or procured. In the absence of that instruction the act could not be characterised as indecent. However, a direction to deliberately leave the faeces in circumstances where the accused has expressed a sexual interest in faeces to DE is properly characterised as indecent. If I am wrong about that, these reasons make it clear that the elements of maintaining an unlawful sexual relationship are nonetheless made out.
The prosecution alleged that on more than one occasion the accused asked DE to engage in anal intercourse with him and asked to be permitted to lick DE’s anus.[179] The evidence relied on was that DE said the accused asked to “eat his arse” (oral/anal contact). The request for anal intercourse was identified as DE’s evidence that the accused said “you can just lay there and do nothing, Ill just do it all … you just lay there and Ill do whatever I want to ya”.[180] DE said those requests were often accompanied by offers of drugs or money to participate.
[179]Count Four, particulars (e) and (f).
[180]TS 34.
The requests were alleged by the prosecution to amount to making a communication for a prurient purpose with intention of making a child amenable to a sexual activity. I am satisfied beyond a reasonable doubt that the accused made the communications alleged. It is relevant to excluding that the statements were a joke or an attempt to shock that the requests were accompanied by incentives or offers of payment to participate, and that the requests were repeated and not isolated.
The nature of the communications, and the environment within which they were made satisfies me beyond a reasonable doubt that they were made with a prurient purpose.[181] I am further satisfied from all the circumstances that the activity proposed was a sexual activity, and the communication was made with the intention of making DE amenable to that activity.[182]
[181]R v Richards [2016] SASCFC 79 at [24].
[182]Ibid at [21].
I am satisfied therefore beyond a reasonable doubt that the accused’s requests to “eat his arse” constituted a communication made for a prurient purpose, with the intention of making DE amenable to a sexual activity.[183] I am not however satisfied that the evidence relied upon by the prosecution as a communication to make a child amenable to an act of anal intercourse meets the particulars at count 4(e) which specifically refer to that specific act. I have not found that particular proved on the basis of the conduct identified by the prosecution.
[183]Contrary to the Criminal Law Consolidation Act 1935, s 63B(3)(b).
Facts were agreed between the parties which proved that the accused was an adult during the charged period and DE was 14 years of age during the charged period.
The final element which must be proved to prove a charge of maintaining an unlawful sexual relationship with a child is that the accused maintained a relationship with DE. This is evidenced by the ongoing permission for DE to attend at, and stay at the accused’s home, and the interactions that occurred between them during those times. These were not commercial arrangements, but arrangements which stemmed from a relationship between the accused and DE, which was sustained by the accused. I note Kourakis CJ’s description that “relationships are generally characterised by repeated interactions which generate patterns of interpersonal behaviour.”[184] I find this element proven.
[184]R v Mann [2020] SASCFC 69 at [28].
I find count 4 proved beyond a reasonable doubt.
In those circumstances it is not necessary that I consider the alternatives on the Information, counts 5, 6, 7 and 8.
Counts 10 and 11: Assault (JR)
Assault (for the purpose of the allegations in this trial) has four elements:
1.The accused applied force to the complainant.
2.The application of force was the result of a deliberate and voluntary act.
3.The physical contact was unlawful. This includes the consideration that conduct that lies within limits of what would generally be accepted in the community as normal incidents of social interaction or community life cannot amount to an assault.
4.That also the victim did not consent to the assault, and the accused knew her not to be consenting.
Proof of counts 10 and 11 depends substantially on my acceptance of the evidence of JR coupled with the TikTok recording for count 10. As noted above, I found JR to be an honest witness. Her description of the accused’s conduct on each occasion was logical and plausible. I accept beyond a reasonable doubt her account of the events described.
I accept in relation to count 10, on the basis of the evidence of JR, that the accused’s hand did make contact with JR’s bottom as she walked past having completed her dance. I accept that the contact was fleeting and momentary.
I accept for count 11 that the accused tapped her buttocks with an open hand twice quickly as she walked ahead of him up the stairs to her unit.
An application of force to another which lies within the limits of what would normally be accepted within the community as a normal incident of social interaction or community life does not constitute an assault unless it is proved that the accused intended by his or her conduct to cause harm.[185]
[185]Criminal Law Consolidation Act 1935 s22 (4).
Further, an application of force is unlawful only if the person to whom force is applied does not consent, and the other person knows or is recklessly indifferent as to that lack of consent.
Count 10 is alleged to have occurred in the course of a social gathering at the home of Mr McNickle. The accused committed the act apparently knowing that the recording was being made. The accused’s recorded behaviour raises the possibility that the accused believed he was being funny or joking, and that in that context the complainant would consent to the contact. His joke might well be in poor taste, and socially inappropriate, but in the context in which the accused was operating, and his tendency to breach social mores in his lawful interactions with other adults, I am not satisfied beyond a reasonable doubt that the accused appreciated or was reckless as to JR’s lack of consent.
JR’s evidence at trial was that she did not complain to the accused or give him any indication that his behaviour was unacceptable to her after he touched her in that way.[186] JR believed that the incident charged as count 11 occurred after the TikTok incident. After the accused touched her buttocks as she walked up the staircase, JR said she told him that if he repeated his conduct, she would kick him down the stairs. The accused apologised, and JR told him not to do it again.[187] The accused did not touch her in a similar way again.
[186]TS 158.
[187]TS 117.
In respect of count 11, I am not satisfied beyond a reasonable doubt in all the circumstances that the accused knew or was recklessly indifferent to the fact that JR did not consent to the contact.
In those circumstances, I am obliged to acquit the accused on counts 10 and 11.
In reaching those conclusions, it is important to observe that this is a court of law and not a court of morals. The acquittal is not a statement that the behaviour was appropriate or socially justified. It is a finding that the conduct was not proved to be criminal.
Count 12: Attempting to Incite or Procure a Child to Commit an Indecent Act (JR)
Count 12 is laid on the basis of the evidence of JR that the accused asked her “a couple of times” to defecate on a plate or on the floor for him so that he could eat it.[188] She said that the first time he mentioned the topic was a couple of weeks after she first began visiting his unit. JR said that she witnessed the accused making requests of JM and DE for each of them to defecate on a plate or on the floor more frequently than he made the request of her.[189] The particulars of count 12 describe the indecent act incited or procured as asking JR to defecate on a plate for the accused to consume. The evidence led from JR did not describe an attempt to incite or procure that act. Rather, the evidence was no more specific than that the accused asked her “a couple of times” to defecate on a plate or the floor so that he could eat it. No evidence was led about the specific words uttered on the charged occasion, or the circumstances in which the words were uttered. In light of the paucity of the evidence about the occasion, I am unable to make any considered assessment of the accused’s intent in uttering those words. While there is evidence that the accused had a proclivity for coprophilic activities, there is competing evidence that he did not demonstrate any particular sexual interest in JR. The lack of evidence about the surrounding circumstances makes it impossible to resolve those conflicting considerations and I am therefore obliged to acquit on count 12.
[188]TS 115.
[189]TS 115.
Count 14 and 15: Possession of Child Exploitation Material (Basic and Aggravated).
Count 14 is particularised as the possession of two videos which were located saved on the laptop located at the accused’s premises within the C drive in a location identified as “User Max videos”.[190] Count 15 is particularised as the possession of two different videos extracted from the same location on the same device. Count 15 alleges that the material depicts children under the age of 14 years. Section 5AA(e)(i), at the date of the offence provided that an offence against section 63A(1)(a) is committed in circumstances of aggravation if:
(e)the offender committed the offence knowing that the victim of the offence was, at the time of the offence –
(i) In the case of any offence against Part 3 Division 11 A – under the age of 14 years.
[190]TS 253.
The aggravating circumstance can be proved only when evidence exists that the child depicted in the material charged is in fact under the age of 14. The language can be distinguished from the language of section 62 which defines child exploitation material by reference to the apparent age of the child. There will be circumstances where the image itself will be sufficient to prove the actual age of the victim depicted in the material. For example, an image of an infant or very young child. However, although the material relied on for count 15 depicted a child who appeared small, their actual age is not self-evident. There was no evidence as to the actual age of the boy depicted, and no evidence on which I could infer that the accused knew their actual age. I do not find the circumstance of aggravation proved for count 15.
I move to consider then the elements of the basic offence of possessing child exploitation material.
For each count the accused relied on two recordings.[191] The recordings relied on for count 14 each depicted a young male engaged in masturbation (file number ending 412) and masturbation and anal intercourse (file number ending 286). There is no doubt that the material depicts a young male engaging in sexual activity. I have carefully considered whether for each video the male depicted in each recording is apparently under the age of 17 years. Each video depicts a different male. Each are of very slight build, and each has no body hair and no facial hair. The male in file 412 has no pubic hair and the male in 286 has limited pubic hair. I am satisfied from the context of the sexual activities shown and the physical appearance of each male depicted that they are apparently under the age of 17 years.
[191]Exhibit P10, file number ending in 412 and 286 for count 14 and file number ending in 751 and 036 for count 15.
The two recordings relied upon for count 15 depict a child being subjected to anal intercourse. The child is the stature of a boy approximately 8-14 years old. He has no body hair apparent. I find it proved beyond a reasonable doubt that the child depicted is apparently under the age of 17 years.
I turn to consider whether it has been proved that the accused was in possession of the videos charged for each count. Possession requires the prosecution to prove that the accused knew of the existence of the images on the laptop and intended to exercise control over them.[192] The prosecution is obliged to exclude as a reasonable possibility that someone else downloaded the images to the computer, or they found their way to that location by some malware or virus process. The prosecution relies on the following circumstances to prove possession:
[192]R v Morcom [2015] SASCFC 30
1.The laptop was located in the flat leased by the accused next to his bed.
2.The laptop was configured with a user-name profile ‘Max’, meaning that that was at least one of the options that would present itself at the log-in stage when the computer was activated.[193]
3.The laptop had an account name Mark Anderson for using the internet browser Chrome.
4.Simply watching a video on a website would not necessarily result in a copy of that video being saved to the laptop. Such an action would be unlikely to result in the video being saved to the computer.[194]
5.The four charged video files were located on the computer in the file location users/Max/videos file. It was not possible from the E-Crime analysis alone to say whether the videos saved to that location had been accessed.[195]
6.The E-Crime expert gave evidence that it was possible for malware software to be installed on a computer system without a user’s consent or knowledge. That malware could, possibly, operate to insert files onto a computer.[196] The expert could not say whether the device he examined had anti-virus software installed, or whether access to the computer was password protected.[197]
7.A schedule of data was tendered which showed some of the activity that had occurred on the laptop, and where some relevant files were stored. The schedule showed that there were various videos held within the videos folder (the same electronic location as the charged material) which had titles which referred to sexual themes.[198]
8.The same schedule identified a series of ‘link files’ which were electronic files which provided links to video material stored in videos file for the user Max. These links contained video titles which referred to sexual themes. In particular, the titles referred to in the links contained coprophilic themes.[199] I have earlier outlined that I find proved that the accused had a proclivity for coprophilic sexual activities.[200]
[193]TS 327
[194]TS 351
[195]TS 334
[196]TS 345
[197]TS 346.
[198]Page 2 of P9 and TS 328.
[199]Page 3 of P9 and TS 331.
[200]For the reasons outlined earlier, I do not find that this interest attracted the constraints of section 34P as the interest is not discreditable. If I am wrong about that, I find that it satisfies the test set out in 34P(2)(b).
The same schedule identified potential internet browser activity on the computer.[201] The string of characters identified by the forensic software makes it likely that the data reflects internet activity, but the expert could not rule out the possibility that the data might reflect a link or some other reference to the universal resource locator (URL or web address) that had not been accessed. The URL identified contains a description that is suggestive of sexualised material. The majority of the URLs reference twinks, which is a slang term which refers to young looking males, typically without body hair and boyish looking, in the context of pornography.[202] One of the links could be confirmed as browser activity, as it referred to google chrome. This referred to a video title which was consistent in theme with the other URL links.[203] The prosecution argued that the existence of those URL references demonstrated that the accused had a sexual interest in material depicting young looking males, and that I could reason from this that the accused was in possession of the charged material, which also depicted young boys in sexualised circumstances.
[201]Page 5 of P9 and TS 333.
[202]TS 252.
[203]Page 5, entry 7, TS 333.
I do not consider that the evidence of the URL searches which suggest accessing of material with twinks in the title enables me to reason pursuant to section 34P(2)(b) that the accused was in possession of the charged images. The interest relied upon is not sufficiently specific to distinguish it from a generalised bad character line of reasoning.
I must determine whether, taking into account the circumstances described at [1]-[7] above, I consider it proved beyond a reasonable doubt that the accused knew of the existence of the videos and intended to exercise control over them. A separate question arises as to whether the prosecution have proved that he knew of their pornographic nature.
I am satisfied that the videos folder in the user profile Max was being used by the accused to store videos which had titles with sexualised themes. I am further satisfied that the video folder was being used by the accused to store videos with titles referring to matters I conclude he had a specific sexual interest in (coprophilia).
There is, however, no evidence of how many videos in total were stored in that location, or whether the various files within the videos file had a consistent theme or characterisation. It is not possible to identify whether the file ‘videos’ was the repository for all video material generally, or videos with a specific sexual theme.
Evidence was led that the forensic analysis tool identified between 100 and 200 videos in total stored on the laptop, of which about 100 contained pornographic material which was not child exploitation material.[204] Those videos contained mostly homosexual pornography, and a lesser amount of coprophilic pornography.[205] No evidence however was led about the specific location of those videos on the laptop. In those circumstances it is difficult to safely draw any inference about the accused’s knowledge of the specific charged videos from the location in which they were stored.
[204]TS 257 and 260.
[205]TS 260.
No evidence was led as to what file names were associated with the four charged videos located on the laptop computer. The file names as recorded on the exhibit disk were numerical, but there was no evidence about the names of files at the time they were identified on the laptop computer. In those circumstances it is impossible to draw any inference about what the accused may have believed them to contain, or on what basis they may have attracted his specific attention, by reference to their file name alone.
I conclude that the four charged videos were located under the username Max stored in a folder identified as ‘videos’, which also contained videos with titles reflecting sexualised themes. Titles also reflected coprophilia, a specific proclivity that the accused had. Those circumstances do engender a level of suspicion based on the coincidence of the four charged videos being located in the same electronic file.
However, there is no evidence that the accused in fact accessed the material, and the relevant expert could not exclude the possibility that videos could be inserted onto a computer by malware. Absent contextual evidence about the contents of the videos folder, and absent any evidence about the file names attached to the four charged videos, I am unable to exclude as a reasonable possibility that the accused did not know of the presence of those four specific videos, and or did not know of their pornographic nature.
I find the accused not guilty on counts 14 and 15.
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