R v B, EJ (No 2) - [2011] SADC 197

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, EJ (NO 2)
Criminal Trial by Judge Alone
[2011] SADC 197
Reasons for the Verdicts of His Honour Judge Clayton
22 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with two counts of indecent assault.
Trial of objective elements by judge alone.
Verdict: Not guilty of both counts.
Criminal Law Consolidation Act 1935 Part 8A, referred to.

R v B, EJ (NO 2)
[2011] SADC 197

The accused is charged with two counts of indecent assault. The particulars allege that between 1 April 1979 and 31 October 1979 the accused indecently assaulted the complainant. Count one relates to an allegation that the accused grabbed the complainant by the penis and dragged him into a shower cubicle before showering him with hot and cold water alternately. Count 2 alleges that the accused inserted a cane into the anus of the complainant.
Reports of psychologists establish that the accused is not fit to stand trial. Both parties acknowledge that is the case and the matter must be determined pursuant to Part 8A of the Criminal Law Consolidation Act 1935.
I have previously refused an application by the accused for a permanent stay of proceedings. Written reasons were delivered for that decision.[1]
[1] [2011] SADC 163.
The accused has made an election for trial of the objective elements by judge alone.
The accused has conceded that the alleged acts, if proved, were indecent.
Additionally the accused has conceded that as the complainant could not have consented to the alleged acts, the sole issue for determination is whether the prosecution have proved beyond reasonable doubt the two acts alleged to give rise to the offending namely whether the accused dragged the complainant by the penis and whether the accused inserted a cane into the anus of the complainant.
If I accepted the evidence of the complainant beyond reasonable doubt there would be evidence which established the objective elements of the two offences. The question is whether I should accept the evidence of the complainant.
I accept the submission of Mr CSL Abbott who appeared for the accused that there is a need for careful scrutiny of the evidence of the complainant. The reasons include the inability of the accused in a hearing under s 269M. A to refute an allegation on oath, the lack of corroboration, the age of the allegation, the delay in the making of a complaint and the forensic disadvantage to the accused occasioned by delay and age.[2]
[2] Written Outline of Submissions para 5.1.
The accused was arrested at his home address on 17 August 2008.
The accused was born in 1931 and is now 80 years of age. The complainant was born in 1967 and is now 44 years of age. The alleged offending was about 32 years ago. At the time of the alleged offending the complainant was subject to a care and control order pursuant to s 40 of the Community Welfare Act 1972 which had been made 9 April 1979. The complainant was under the care of the State from about the age of 11 until the age of 18.
The accused was in charge of Slade Cottage Boys Home, the state institution where the complainant was placed at the time of the alleged offending. Up to 10 to 12 youths were housed in Slade Cottage at any one time.[3]
[3] Exhibit A8.
During the period when the offending is alleged to have occurred the complainant was moved between a number of institutions. On 6 June 1979 the complainant was charged with the offences of breaking, entering and stealing and was placed under a care and control order for 12 months. On 8 June 1979 he was transferred from the South Australian Youth Remand and Assessment Centre (SAYRAC) to Slade Cottage. On 14 June he was transferred from Slade Cottage back to SAYRAC and on 22 June he was transferred back to Slade Cottage. On 29 June he was charged with breaking, entering and stealing and remanded back to SAYRAC. He was transferred from SAYRAC to Slade Cottage again on 20 July 1979 and on 22 October 1979 he was transferred from Slade Cottage to the Northern Regions Admission Unit (NRAU).
Accordingly the complainant spent three periods in Slade Cottage; first from 8 to 14 June 1979, secondly from 22 to 29 June 1979 and finally from 20 July until 22 October 1979. The events giving rise to the alleged charges must have occurred during one of those three periods.
The complainant gave evidence of the facts said to make out the offences. There is no other evidence of the alleged offending. Accordingly, if I am unable to accept the evidence of the complainant, or if I have doubt about his evidence, I must find the accused not guilty.
On the evidence of the complainant another resident of Slade cottage, M., was present at the time of the offending and was assaulted in a similar way.
M is now deceased. In July 2009, before he died, M provided police officers with a written statement. Also on the 11 November 2009 M was cross‑examined by counsel for the accused at committal proceedings. I will refer to the evidence of M in more detail later, but it is relevant to mention at this point that M did not corroborate the evidence of the complainant.
On his own evidence the complainant was a troublesome youth. He gave evidence that he absconded repeatedly and got into trouble with the authorities. He had to attend at police stations and court.[4] One can assume that he would have been a challenge for the staff of Slade Cottage, in particular the accused. The complainant said that the sort of things that he got into trouble for included "Running away, absconding, truancy from school, telling lies, probably picking on other kids, being a bully".[5] He also said that he got into trouble for offending which he described as "Stealing mainly, dishonesty charges".[6]
[4]    T17.
[5]    T20.
[6]    T20.
The complainant gave evidence of punishment which he received. He said that he "Pretty much got caned a fair bit for most of the stuff I got in trouble for".
He said that the accused was the person who mainly caned the boys and disciplined him more than others. He described the cane as "Probably 2 m long, thin, about quarter inch, half inch thick… more the style of the school cane I suppose". He said the cane was creamy white in colour and made from bamboo. The complainant said he had been caned by other staff with that cane. Whilst at Slade Cottage he was also hit with a rubber hose and "a yard ruler like the schools have". Those items were generally kept in the office. Most punishment was administered in the office. He was caned across "the palms of the hands, the back of his legs, bum, back of the hands". When caned on the backside he would for the majority of the time have his pants on although there were occasions when he had no pants on.[7]
[7] T22.
The complainant said that he was caned by the accused "At least a couple of times a week" and that he was hit "Quite hard in my book", that it hurt and stung. It made him angry. As a result of the canings he had cuts on his hands. Exhibit P2 is a booklet of photographs said to show injuries to his hands. He also displayed his hands to the court. Both the right hand and left hand have red marks on the palms which are said to be the result of caning.[8] Whether that is correct is difficult to say.
[8] T23.
The complainant said that he witnessed other boys being punished by the accused, including by caning.[9]
[9] T26.
The Evidence of the Complainant as to the Incident giving rise to Charges
The only evidence of the alleged offending is the evidence of the complainant. Unless I can accept his evidence beyond reasonable doubt there must be a verdict of not guilty. On the other hand if I did accept his evidence beyond reasonable doubt there would be evidence on which I could find that the objective elements of the offences have been made out.
The evidence of the complainant is that the incident giving rise to the alleged offences took place in the shower at Slade Cottage. He said M was also involved. The complainant was asked what led up to the incident and he replied "Not hundred percent sure. We absconded and maybe we offended or was presumed to reoffend on that day".[10] (I have underlined parts of his answers which might indicate a lack of precision or uncertainty).
[10] T28.
When asked what he meant when he said he absconded the complainant replied "I would say from school. We used to run away from school or just before school, say, can't really honestly say which one, either be that or the other".[11]
[11] T28.
He was asked whether he had any recollection of where he might have been on the day of the alleged offending and replied "majority probably hanging around Glenelg, the Broadway".[12]
[12] T28.
He was asked whether the incident occurred during the day or the night and replied "I would say mid-afternoon early evening".
The complainant was asked to explain what happened and said "we were-we returned to the unit or brought back by police, I can't really recall which one. We were talked to, got told (by the accused) to go in the shower block".[13] The boys went into the shower block and the accused followed them in. He was asked whether there was anyone else in the shower block and replied "Not that I can recall no".[14]
[13] T28.
[14] T29.
I digress at this point to make the observation that the evidence of the complainant did not explain satisfactorily what led up to the alleged offending or put the alleged offending into context. Not knowing the context in which the alleged offending occurred makes it difficult to assess the truthfulness of the complainant’s allegations.
To return to the narrative the complainant said at that the request of accused the complainant removed his clothing. He was asked about M and said "I presume he did too, from what I can recall".[15]
[15] T29.
The complainant said that the accused asked a lot of questions about "what we were doing, where we were". The accused spoke in an authoritative sort of tone and seemed annoyed. The complainant said "We were asked a lot of questions; where we were, what we were doing, every answer that we gave we pretty much got caned".[16]
[16] T30.
He thought that the accused fetched the cane while they were in the bathroom. He was asked whether that was before or after they had taken off their clothes and responded "It would be after we took our clothes off I would say". The complainant said that at first the accused "started off hitting us across the hands" while they were standing naked.[17]
[17] T30.
The complainant was asked how many times he was hit on the hand and replied "Three or four times that I can recall. Maybe a few more".[18] He was asked how many times was M hit on his hand and replied "I think roughly the same, we were getting asked the same question to each of us, so-".
[18] T31.
The complainant was asked who was being hit first or whether it was simultaneously and he replied "Simultaneously, I can't recall, but I was actually struck first with the cane, but we both got struck by the cane from what I can recall".[19]
[19] T31.
The complainant was crying. M was also crying and distressed.
The complainant said that after he was hit on the hand with the cane "… we were dragged into the shower… Grabbed by the penis and pulled in". The accused was the person who grabbed him by the penis.[20] The complainant said that the accused "Grabbed it, pinched it". He could not recall whether the accused still had hold of the cane. The complainant said he was pulled 3 or 4 feet and his penis was pulled "pretty hard, I was dragged". He was crying but cannot recall anything being said. He was asked whether the accused was saying anything whilst he was pulling the complainant by the penis and replied "not really sure, got a mental blank on that at the moment".[21] He said "I was put in the shower, water was turned on, hot then it went cold, hot, cold, he was asking us questions in between".
[20] T31.
[21] T32.
The complainant could not recall whether it was he or M who went into the shower first.[22] He was asked whether the same thing happened to M that happened to him and replied "From what I can recall, yes".[23] The complainant said he "was dragged into the shower and same sort of like treatment, hot and cold shower and questions being flying at you". He was asked whether M was dragged by his penis and replied "can't be 100% sure on that". He was asked who was dragged first and said "I think I was". He also said "I think I might have been in the shower when he (M) entered the other shower".
[22] T32.
[23] T32.
The complainant said that he was in the shower with the water alternately hot and cold for "a minute, minute and a half, two minutes. I can't really honestly say the time period…".
While water was being turned from hot to cold the complainant was "being yelled at, told off, being asked questions… what we had done, where we had been, what we had stolen, what we didn't steal".[24]
[24] T33.
The complainant said he was "in a distressed state, fearing for my life" and sobbing. He said that M was crying and "from what I recall the same thing happened to both of us".
When asked whether he said anything to the accused the complainant replied "from what I recall I didn't answer many of the questions that he asked me when I was in the shower. Just shut down. Ignorant, arrogant... just shut down, blocked everything out".[25] That was because of fear. He was afraid of what the accused would do to them.
[25] T33 to 34.
He was asked whether he was in the same shower as M or a different shower. He responded "Shower opposite, there is two shower cubicles from what I can recall".[26]
[26] T34.
He was asked whether the hot and cold water was being turned on and off in relation to M at the same time as himself and replied "Different I would say. Question to me and then he would go and question (M) from what I can recall".[27]
[27] T34.
I digress to make the observation that answers such as that suggest that the complainant was reconstructing rather than giving evidence of his actual recollection.
The complainant was asked what happened after the two or three minutes that it might have lasted and replied "From what I recall I was pulled out of the shower".
He was asked what happened when he came out of the shower and replied "from what I recall I was being asked questions similar to the questions before and I think (the accused) got annoyed and angry, so-". He said that the accused started to cane them again while they were still naked. He was asked whether they had a chance to towel off and replied "Can't really say anything on that one". On this occasion he was being caned "Across the hands and backside". He was asked whether he was making any noise and replied "Couldn't really say, probably sobbing like I was before".[28]
[28] T35.
The complainant said he tried to pull his hand away when he was hit with the cane. He said that he "got told off for pulling my hand away pretty much. Made him more angry from what I can recall". He was asked where he was when the second caning was taking place and replied "Can't really picture that offhand".[29]
[29] T35.
The complainant said that after he had moved when being hit on the hand "I think I was grabbed by (the accused) from the neck and told to bend over". He indicated being grabbed with the hand at the back of his neck. He said the cane was still there somewhere. He said he was half crouched over because the accused had grabbed his neck. The accused was trying to get him to bend over to cane him. The complainant was not complying because he did not want to get hit. He was trying to resist. The accused started yelling at him. The complainant said "I think he was telling me to bend over, from what I can recall… he was trying to bend me over and smack me at the same time, so I was pulling away. Trying to move away from the cane when it come (sic) swinging around".
When asked to describe what happened next the complainant gave evidence of the conduct giving rise to count two:
I can remember the cane being inserted, well, slipped up the bum cheeks of me, I don't know how to explain it really to be honest…. I could feel the cane going in between my bum cheeks into my anus, suppose.[30]
[30] T36.
He described the feeling as "sharp, scratching, saw, pain really". He felt that for a few seconds. At the time the accused was standing behind him with his hand on the complainant's neck. He could not recall where M was at the time.
The complainant tried to pull away but was unsuccessful and "copped another couple of smacks across the backside from the cane after that".[31]
[31] T37.
He was asked what happened after that and said "I believe I went and got dressed in our pyjamas and dressing gown" and they were "placed in either the dining room or the lounge room, I think it might have been the lounge room".
The complainant said "I'm not sure if I was taken back to SAYRAC later that night or not".[32] He was taken back from Slade Cottage to SAYRAC "a couple of times.[33] Other evidence establishes that he was not taken back to SAYRAC that night. The fact that the complainant was not sure if he was taken back to SAYRAC that night suggests that at least on that topic the evidence of the complainant was unreliable.
[32] T37.
[33] T38.
The complainant said that he did not know what happened to M that evening or thereafter. He was asked whether he saw M again after the night of the shower incident and said:
AFrom what I recall, not at Slade cottage after the shower incident, maybe a few nights afterwards, I think maybe a day or two, can't be hundred percent sure on days, weeks, I'm sure it was no more than a week, a week or so.
HIS HONOUR
QI don't quite follow that. The shower incident occurred and then for a time you didn't see (M), is that right.
AAfter the shower incident, yes. We were still at Slade Cottage but I think he absconded either a few days or a week after that, then went to the police station.
XN
QAfter he went to the police station as you understood it, did you see him again at Slade Cottage.
ANot that I recall, no. I don't think he ever was returned to Slade Cottage after that. To the best of my knowledge I don't think he was.[34]
[34] T39 to 40.
The complainant gave evidence that he was locked up with M in SAYRAC "for a few months here and there over the years" and that he saw him years later in a tattoo shop in the city, but they never discussed the shower incident.
In Addendum Statement No 1 the complainant changed his statement to say that he was taken to the police station that same night.[35] That amended statement must be incorrect because it is clear that the police were not involved until the following day.
[35] Statement dated 14 July 2008 p 2.
The complainant said that a few days, maybe a week, after the shower incident he went to the police station with the accused. The police had asked for him to be taken there. He said that the accused told him that he had to go down to the police station because they wanted to talk with him about an incident with M who had been in the police station and made a report to them.[36]
[36] T38 to 39.
The complainant said that he did not say anything to the police about what had occurred. He said "I'm pretty sure I didn't say too much in fear… (of) what might occur if I did say anything". The complainant said that he feared another bashing.
That evidence that the complainant went to the police station a few days after the incident is not consistent with the earlier evidence to which I have referred above that the complainant could not recall whether he was "taken back to SAYRAC later that night".[37]
[37] T38.

The complainant stated that when they got back to Slade Cottage from the police station the accused asked him what he had told the police and the accused made threats to the complainant that if he said anything about what had happened he would be punished.
The Evidence of M
M was interviewed by the police on 5 July 2008 and provided a statement which is dated 14 July 2008. In that statement M said he remembered being in Slade Cottage and remembered repeatedly running away with P, another youth (not the complainant).
He said "I will never forget (B), he was a child abuser to my mind because of the way he would cane all the kids. He ran the place like a headteacher and had multiple canes of different sizes in his office. I remember he would take his time choosing which came to punish you with and would flex it in front of you".[38] M said when he and P started to run away more the canings became more frequent and more violent. M said the accused became more and more angry with them. M said that his main recollection of his time at Slade Cottage was of being caned and being beaten by the accused.
[38] Statement dated 14 July 2008 pp 4 and 5.
There is no reason not to accept that evidence. M had no personal interest in the complainant’s case when he provided his statement. That evidence of M is significant because it contradicts the defence case that the accused never used a cane.
M referred to one particular occasion when he had run away with P and the accused was particularly angry and caned them vigorously. He remembered the accused using an axe to cut a branch from an oleander tree which the accused then used to beat M on his bare back side and the backs of his legs. M described the pain as excruciating and said that the accused hit him about eight to 10 times. M said that his hands were black and blue and swollen to twice their size. M thought that the accused was out of control and that the punishment was well over the top.
M said that on that occasion the accused then put him in his room naked, took away his clothes, nailed a piece of wood across the door and tied the handle so that M could not get out. He described himself as a prisoner in his own room and said that he was only allowed out to go to the toilet and do chores. He wore government issued pyjamas. M said that punishment lasted about two weeks.
M said that on the day that he was let out of his room he ran away to his cousin's house. When his cousin saw the state of his hands she made him go to the Glenelg Police Station to tell them what had happened. A police officer took Polaroid pictures of his hands and a short statement. His cousin told him that he was not to go back to Slade Cottage, but after she had gone home the police took him straight back.
M said that as the police were speaking to the accused M ran away again. He said he slept rough around the city for a couple of days before police caught him and sent him back to Slade Cottage. The accused was not at Slade Cottage when M returned but when M did see the accused he administered another caning. M said that he was taken to the bathroom where he was made to drop his trousers and he was caned again with the same oleander branch.
Other evidence indicates that M was transferred from Slade Cottage on 20 August 1979. In his statement M said that the events which preceded him going to the Glenelg Police Station involved himself and P, not the complainant. There is conflicting evidence as to the incident that M was speaking of.
The accused wrote to Mr Belchev, his superior, on 20th August 1979. That letter is objective contemporaneous evidence which can be relied upon to establish facts. The letter establishes that M went to the Glenelg Police Station on Sunday 19 August 1979 following what has become known as the "bike chain" incident, which is described in the letter. The events described in the letter are significantly different from the incident described by M in his statement. For example the incident described in the letter did not involve M being locked in his room for two weeks. M was not locked in his room following the bike chain incident and he was removed from Slade Cottage almost immediately.
M said that he left Slade Cottage in around 1980. That is not correct.
M recalled the complainant. Importantly in his first statement M said "I don't remember anything specific happening with (the complainant), he was just one of the lads there at the same time as I was".[39] He confirmed that he in his evidence when he was cross-examined at the committal.[40] However later he said he remembered an occasion when he and the complainant were given the stick on their hands by the accused.[41] When asked whether it was that caning which led to him going to the Glenelg Police Station M said he did not know.[42] That evidence is inconsistent with his evidence that his visit to the Glenelg Police Station involved an incident with P, not the complainant. The letter to Mr Belchev establishes that it was M and the complainant who were involved in the bike chain incident on 18 August 1979.
[39] Statement dated 14 July 2008 p 8.
[40] T3 l16.
[41] T7 l10, T14 l7.
[42] T13 l31 to 36.
M was transferred from Slade Cottage to Northern Region Admission Unit at the instigation of Mr Belchev on Monday 20 August 1979, that is immediately following the "bike chain" incident. The transfer was said to be "due to a breakdown of relationships with staff at Slade Cottage".[43]
[43] Exhibit A10, Progress Report dated 20 July 1979.
I have reservations about the accuracy of the evidence of M. Any inaccuracy in his testimony is understandable having regard to the period which has elapsed. However one thing that is clear is that M never referred to either him or the complainant being dragged by the penis into a shower or to a cane being inserted into the anus of the complainant.
In his evidence at the committal M could only recall going to the Glenelg Police Station on one occasion which was at a time when his hands were black and blue from a caning. M said that was following a caning of M and P which did not involve the accused. The Belchev letter shows that evidence to be incorrect and that M went to the Glenelg Police Station following an incident involving himself and the complainant, not P.
M said that he met up with the complainant again in 1993 or 1994, but they never discussed their time at Slade Cottage.
Following an application pursuant to Rule 20 M was cross-examined by counsel for the accused in the committal proceedings. There is a transcript of the evidence which he gave on 11 November 2009. M confirmed his earlier statement that he could not remember anything specific happening with the complainant during the time that he was in Slade Cottage, although M did remember an occasion when he and the complainant were given the stick on their hands by the accused in his office.
M also gave evidence of attending at the Glenelg Police Station, at the request of his cousin, at a time when his hands were so black and blue that they were distorted. He could recall attending at the police station on only one occasion. The letter to Mr Belchev establishes that must have been on 19 August 1979 following the "bike chain" incident.
In his cross-examination at the committal M could not recall whether it was a caning that he received when the complainant was also present that led to him going to the Glenelg Police Station.
The one thing about the evidence of M which is significant is that it does not support the evidence of the complainant. If M had been present when the alleged offending took place there is no reason for M not to have supported the complainant.
The Defence Case that there was no cane at Slade Cottage
The defence case is that there was no cane at Slade Cottage and that the accused never used a cane.
Regulation 40 of the regulations under the Community Welfare Act 1972 permitted punishment, normally by deprivation of a privilege or privileges, but prohibited corporal punishment. The use of a cane was therefore prohibited by the regulations.
The complainant described a cane 2 m in length which was kept in the office leaning up against a filing cabinet.
Mr Setton, an employee of Slade Cottage at the relevant time, gave evidence that a cane was not kept in the office at Slade Cottage. He never saw the accused use a cane.
Mrs Ursula Platen, an employee of Slade Cottage from the mid-1970s until 1982 can recall both the complainant and M. She can recall an incident with a bike chain involving both of those boys. She is unaware of any punishment the boys received for the bike chain incident. Mrs Platen could not recall ever seeing a cane at Slade Cottage.[44]
[44] Agreed Facts - Exhibit A8.
I have already referred to the evidence of M as to the use of the cane by the accused at Slade Cottage. I am satisfied that there was a cane at Slade Cottage although it is likely that following the bike chain incident the accused used an oleander branch rather than the 2 m cane described by the complainant. I find that the evidence as a whole establishes that caning, whatever implement was used, was a regular occurrence during the time that the complainant and M were resident in Slade. Whether a cane was used in the way alleged in the offending is something which must be determined on the basis of the evidence as to alleged offending.
The Letter to Mr Belchev- events of 17-20 August 1979
As I have mentioned on 20 August 1979 the accused wrote to Mr G Belchev, the Regional Director. He reported that on Friday 17 August both the complainant and M had been required to appear in court and on Saturday 18 August both of them absconded. Mrs Platen attempted to stop them and she was threatened with a piece of bicycle chain. The police were contacted and eventually both boys were returned to the cottage. Mrs Platen was abused and threatened with the chain again. The accused was called to Slade Cottage but by the time he arrived both boys had absconded again.
In the letter to Mr Belchev the accused said:
Mrs Platen told both boys that swearing and threatening people would get them into trouble. I then outlined what had happened since leaving court last Friday. I said "What do you think should happen to you?" (The complainant) said "Get the stick". I said to (the complainant), "You have never had the stick at Slade, but it could help you. Do you think so?" He said "Yes. I asked (M) and he said, "I suppose". (The complainant) asked if he could ring his mother, which he did. I also spoke to mother and told her what had happened. I told mother that I was tempted to use the stick. She said, I feel something must be done. You have my permission. (M) then asked if he could ring his mother. I also spoke to his mother and re-told what had happened. Mrs (M) told me that when (M) gets like that, she is frightened of him. She told me that if he has been threatening people she feels that he must be stopped, before he learns that it frightens people. Mother gave me her permission to use the stick on him.
I then gave both boys four handers. I also gave (M) three or four strokes across the behind. (The complainant) did not cry. (M) did. I then took both boys into TV. I told (M) to stop crying, which he did. I then went home.[45]
[45] Exhibit A9.
If the letter was correct, and there is no reason why it should not have been, both boys received four handers but it was M, not the accused, who was caned on the backside.
In the letter the accused advised Mr Belchev that on Sunday 19 August 1979 two girls, one being a cousin, collected M to take him for a car ride, but, after seeing his hands, they encouraged M to complain about getting the stick and they took him to the Glenelg Police Station. The accused advised that two police officers from the Darlington CIB called on him and "voiced the opinion that the boy had been encouraged to make a complaint, and now he did not want to return to Slade". The accused reported that he spoke with the mother who phoned the police at Darlington and told them she had given permission.
I have referred to the letter for several reasons. First, it confirms the existence of a "stick". Secondly, it confirms the use of the "stick", albeit with the permission of parents. Thirdly, it is evidence of the aftermath of the bike chain incident. It fixes the date of the relevant events.
Defence counsel has submitted that the bike chain incident and its aftermath is the occasion which the complainant has taken and exaggerated and changed into the episode in which he makes the allegations which are the subject of the charges. I think that must be correct because the only occasion on which M went to the Glenelg Police Station was after the bike chain incident.
The Prosecution Case
The prosecutor conceded that the evidence of M does not support the complainant in relation to the incident in the shower. He also acknowledged and attempted to explain a suggested inconsistency between the evidence of the complainant in these proceedings and what is suggested to be a report of his evidence to the Mulligan Royal commission. I refer to that inconsistency later.
The prosecutor referred to the evidence of Mr Setton and the admission by the accused in the letter to Mr Belchev that he had given boys "the stick" using an oleander branch. He submitted that it was likely that whatever the accused was doing, whether with an oleander branch or a cane, was not being "done in front of everybody". Accordingly, people such as Mr Setton may not have been unaware of the use of the cane by the accused.
The prosecutor’s submission was that the preponderance of the evidence is that the accused did have a cane and did use it.[46] He also submitted that there is no inconsistency in the evidence of the complainant as to the use of the cane against him. He pointed out, correctly, that both the complainant and M were consistent in describing the accused being in possession of a cane and using it.
[46] TT127.
The prosecutor referred to the letter to Mr Belchev which referred to a conversation in which the accused asked the complainant "What do you think should happen to you?" to which the complainant replied "Get the stick". He submitted it would be extraordinary for the complainant to suggest that he should get the stick if there was no stick. He argued that it must be a reference to a stick which was present at Slade Cottage and was not a reference to an oleander branch, but a reference to a cane which everybody knew about.
The prosecutor explained the evidence of M on the basis that if the cane was being administered regularly and harshly the events giving rise to the alleged offending would not have been out of the ordinary to M because the incident giving rise to the alleged offending was no different from other canings described in the statement of M. His evidence was "I was regularly beaten". He described the accused as a type of child abuser. He was terrified by the use of the stick. The prosecutor argued that the mere fact that he was beaten in the showers would not have been an extraordinary event.
The fact that M was caned on 18 August 1979 is put beyond doubt by the fact that he attended at the Glenelg Police Station on 19 August 1979 to complain about the use of the cane.
The prosecutor asked rhetorically why should M recall the shower incident. He submitted that the fact that the incident was memorable to the complainant does not necessarily mean that the incident must have been memorable to M.
The prosecutor said that while M did not remember the incident and therefore didn't corroborate the complainant's account his evidence does not contradict it either. He pointed out that while in the cross-examination of M at the committal he did not proffer information about the alleged incident he was never specifically questioned in terms about any incident in the shower.[47]
[47] T132.
His submission was that the evidence of M that he did not recall the shower incident did not advance prosecution case but it did not advance the defence case either. He said that the failure of M to specify or recollect the shower incident is "irrevocably neutral".[48]
[48] T132.
I disagree with that submission. The facts alleged to give rise to the offences were out of the ordinary and were most unusual. It was the sort of incident which one would be unlikely to forget.
The prosecutor argued that it would be absurd for the complainant to nominate M as a witness if he knew that M had not been involved. I acknowledge the force of that argument but it is not conclusive.
The prosecutor argued that the presentation of the complainant was not that of a man who was trying to deceive the court. He submitted he "was entirely unvarnished, he was entirely unsophisticated" and made appropriate concessions. Again I acknowledge the force of that submission, but it is not conclusive.
The prosecutor submitted that errors as to shower layouts etc do not go to credibility. He also suggested there was no hint of malice towards the accused and argued that if the complainant was committed to a lie this was a relatively minor accusation of abuse.[49] He submitted that cross-examination left the core account of the complainant undamaged. That is the complainant has not wavered his allegations of having his penis pulled and the cane in his anus. He submitted that the complainant was simply not bright enough and not cunning enough to have invented the incident.
[49] T134.
The Defence Argument
Mr Abbott sought to explain the reference to the "stick" in the Belchev letter by drawing a distinction between the oleander branch and the cane. He asked rhetorically why would the accused have needed to have cut down a switch of oleander branch (that he admitted in the letter that he had administered) if he had a cane. He submitted that the preponderance of the evidence is that there was no cane at Slade Cottage. I disagree.
I think that the evidence of M and the complainant establishes there was a cane which was used regularly. However given the evidence about the oleander branch I regard this as a relatively insignificant issue.
As to the prosecution argument that M was never asked at the committal about an incident in the shower or about an incident involving the pulling of a penis Mr Abbott pointed out that M had been subjected to extraordinary abuse and was asked by police about the topics of Slade Cottage and the accused, but he did not in his nine page declaration, his addendum declaration or his evidence at the committal refer to the incidents which are the subject of the proceedings or provide corroboration.
As to the prosecution’s submission that the complainant did not waver in his account of the abuse Mr Abbott pointed out that in cross-examination the complainant completely forgot, although prompted on at least one occasion, about the insertion of the cane into his anus. Having regard to the overall history of this matter I think that omission must have been an inconsequential oversight to which I attach no significance.
In addition to his oral submissions I have had the benefit of a helpful written outline of argument prepared by Mr Abbott. I accept his submission that there is a need for careful scrutiny of the evidence of the complainant.[50]
[50] Written Outline of Submissions para 5.
As to the evidence of the complainant Mr Abbott submitted that his demeanour was unconvincing and that he used "stock phrases in an effort to "hedge" his position on his memory.[51] It was argued that parts of his evidence were internally inconsistent, did not have the ring of truth or were unrealistic, that his evidence was contradicted in several areas and inconsistent with other statements he had made previously.
[51] Written Outline of Submissions para 8.2.
Mr Abbott suggested an inconsistency in the evidence of the complainant in that he gave evidence that he hated every moment of his time in Slade Cottage but on 17 July 1979 Ms Rosie McDonnell, a community service worker reported that the complainant liked the placement at Slade Cottage and wished to return there.[52] Counsel submitted that it is remarkable that he should have expressed a desire to return to a place where he received the cane constantly and where he had suffered indecent assaults to his penis and anus.
[52] Exhibit A12.

The statement attributed to the complainant should be considered in context. As at the 17 July 1979, when Ms McDonnell's report was prepared, the complainant had only been resident at Slade Cottage for 2 periods of about one week each. I do not regard that suggested inconsistency as being of any consequence. At the time the statement was made by the complainant he may have considered the freedom of Slade Cottage more desirable than being locked up in SAYRAC.
Another inconsistency is that in cross-examination the complainant accepted that he may have told the Hon EP Mullighan QC that an officer at Slade Cottage had tried to insert a cane into his anus "a few times". The complainant also accepted that he may have told Mr Mulligan that the same officer had attempted to grab his penis in a joking manner. The basis for the suggestion that the complainant had told Mr Mullighan those things is the report of Mr Mullighan.
I regard those inconsistencies as more significant. What the complainant accepted that he may have told Mr Mullighan is significantly different from his evidence to the court. It seems that the story of the complainant has now developed beyond what Mr Mullighan was told. That provides a significant reason to doubt the complainant's testimony.
There is no evidence before the court as to precisely what the complainant did tell Mr Mullighan. He had been provided with a copy of his statement but was unable to produce it.
Mr Abbott argued that the lack of corroboration by M "is the crucial fault in the prosecution case". He submitted that the lack of evidence from M corroborating the alleged acts should cause the court, at the very least, to have a doubt about whether the incident occurred.[53] There is obvious merit in that submission.
[53] Written Outline of Submissions para 9.
Mr Abbott submitted that the bike chain incident and its aftermath is the occasion which the complainant has turned into the episode in respect of which he makes allegations. The complainant said he was "Not 100% sure" what led up to the incident. He said "We absconded and maybe we offended or was presumed to reoffend on that day".
When asked to explain what he meant when he said he ‘absconded’ he replied "I would say from school. We used to run away from school or just before school…". The complainant made no reference to the bike chain incident. Also the bike chain incident took place on a Saturday and did not involve any absconding from school.
Conclusion
In my opinion it is unnecessary to resolve the confusion about when the alleged incident occurred. For the purpose of this trial what is significant is that the prosecution case does not establish the context in which the alleged offending occurred.
Judges regularly tell juries that the truthfulness of a witness can be tested by looking at the surrounding circumstances. Understanding the context in which the alleged offending took place is always relevant for the purpose of considering the truthfulness of a witness’s evidence. The inability of the complainant to identify the circumstances in which the alleged offending occurred provides a reason to have doubt about his evidence.
I accept the defence submission that the bike chain incident occurred over the weekend of 17-19 August 1979, that the participants were M and the complainant.[54] I accept that police were involved on Sunday 19 August 1979 in investigating allegations made by M about being hit on his hands.[55] I also accept that M was transferred from Slade Cottage on Monday 20 August 1979 and never returned.
[54] Written Outline of Submissions para 11.
[55] Written Outline of Submissions para 11.6 and the Belchev Letter.
If it was the bike chain incident that gave rise to the alleged offending by the accused, and the police were involved on the following day because of the use of the cane by the complainant, it is significant that M did not advise the police of the alleged offending.[56] If the events relied upon by the complainant had occurred M had no reason to not tell the police the full story. In fact it was in the interests of M to maximise the inappropriate conduct of the accused.
[56] Written Outline of Submissions para 11.2.
In his letter to Mr Belchev the accused advised that M had been to the Glenelg Police Station and continued:
Later on, two gents from the Darlington CID called on me. They voiced the opinion that the boy (M) had been encouraged to make a complaint, and now he did not want to return to Slade. I rang (Mrs M) who has told me that she will verify her statement of giving me permission. She has already phoned the police at Darlington and told them. The CIB Hove also have been notified.[57]
[57] Exhibit A9.
That letter suggests that the concern of the accused at that time was the complaint that he had caned M, not that he had acted inappropriately towards the complainant.
The complainant first said that he went to police in company with the accused "a few days maybe a week" after the shower incident because the police asked for him to be taken there. His later statement that he went the same night must be incorrect. He said that he did not say anything to the police about what had occurred and "I'm pretty sure I didn't say too much in fear… (of) what might occur if I did say anything". I have difficulty accepting that explanation. The fact that the accused did not complain to the police about what had happened to him in circumstances where the police had requested to talk with him about the complaint made by M is a reason to doubt the testimony of the complainant. The complainant was provided with a perfect opportunity to reveal to the police what had happened to him and to seek protection from further beatings.
If on Sunday 19 August 1979, or during the following days, one or both of M and the complainant were prepared to complain to the police about the conduct of the accused one would have expected them to give a full account of their grievances. There was no reason to give the police an edited version and refer to the caning alone without referring to the other conduct which gives rise to the alleged offending.
The fact that M did not corroborate the offending is an important matter although not conclusive. For reasons which I have explained I have reservations about the accuracy of the evidence of M. His evidence that he was locked in his room with the door boarded up for two weeks is not supported by any other witness and is inconsistent with the evidence of the complainant and the Belchev letter. M is wrong as to the time when he was taken from Slade Cottage. The evidence of M is contrary to objective facts and cannot be correct. However there is no reason to doubt his honesty. The errors in his evidence are presumably a consequence of the passage of time. Also he gave evidence that he has lost both short-term and long-term memory as a result of an assault.[58]
[58] T19 to 20.
If M had been involved in events such as those said to give rise to the alleged offences, it is surprising that he never discussed those events when he went to the Glenelg Police Station on 19 July 1979. One problem is that there is no evidence as to what was actually discussed with the police. However I think it can be inferred that the police were not told about the events said to give rise to the alleged offending. If they had been told it is likely that they would have questioned the complainant about the incident and events would have taken a different course.
What must be remembered is that the onus rests with the prosecution. What is important for present purposes is that M did not corroborate the evidence of the complainant in circumstances where he would be expected to do that.
I have no criticism of the evidence of Mr Setton. He was a good witness. Nor can I question the statements by Mrs Platen. Notwithstanding their evidence I think that the evidence overall shows that they were wrong in saying that a cane was not used at Slade Cottage. I think that on the whole the evidence establishes that a cane was used, but that does not establish the alleged offending.
This case stands or falls on the evidence of the complainant. Mr Abbott submitted that "The evidence of the complainant is beset by internal inconsistencies and lack of cogency, inconsistency with objective evidence and other testimony and the complete lack of corroboration by someone alleged to have been present".[59] I think that submission overstates the position.
[59] Written Outline of Submissions para 17.
I do not attach the significance which the defence attributes to the complainant's evidence that he was "dragged" as opposed to pulled.[60]
[60] Written Outline of Submissions para 8.
I regard any error in the description by the complainant of the bathroom at Slade Cottage as inconsequential. As a resident of Slade Cottage for a significant period of time the complainant must have been in the bathroom on many occasions and if he described the physical layout incorrectly that could only be an error of memory or unreliability consequential upon the lapse of time.
In the passages of the complainant's evidence which I have set out above I have underlined phrases which might be taken to cast doubt on the testimony of the complainant. I think a lot of those phrases are no more than a reflection of the way in which the complainant expressed himself. It is not always clear whether the witness was reconstructing or whether he was giving evidence of his actual memory, but it is clear that on some occasions his evidence was reconstruction.
In the case of each count the only question is whether I am prepared to accept the testimony of the complainant as proof of the objective elements of the alleged offence beyond reasonable doubt.
I do have doubts as to whether the alleged events occurred.
If it was the bike chain incident which precipitated the relevant events, the fact that complaints to the police were made on 19 August about the use of "the stick" but nothing was said about the events which give rise to the offending is significant. If the boys were prepared to complain to the police about the use of "the stick" by the accused one would have expected them to refer to the other matters.
If it was not the bike chain incident which precipitated the relevant events, the relevant events must have occurred prior to 20 August when M was removed from Slade Cottage. There were three periods when the complainant was resident at Slade Cottage when the events might have taken place. No event other than the bike chain incident has been identified. The result for present purposes is that the alleged offending by the accused has not been put into perspective. A jury could not use the surrounding circumstances to test the evidence of the complainant. There is no evidence which explains the incident. The complainant's explanation of the events leading up to the offending is so vague as to be of no assistance. The evidence as to the alleged offending stands alone.
The fact that M, who on the evidence of the complainant must have been present, never mentioned the incident to anybody at all and did not recall it when he was questioned is also significant. M never referred to either of them being dragged into the shower by the penis or either of them having a cane inserted in their anus. Notwithstanding my reservations about the evidence of M, the failure of a person who was involved in a most unusual event to mention the facts on which the prosecution is based at all is a significant matter. He did complain about the caning itself. His fundamental omission to refer to the incident is not effected by the inaccuracies in his evidence.
The fact that the complainant accepted that he may have told Mr Mullighan QC that an officer at Slade Cottage had tried to insert a came into his anus "a few times" is also significant. So is the acceptance by the complainant that he may have told Mr Mullighan QC that the same officer had attempted to grab his penis in a joking manner. What the complainant told Mr Mullighan QC was inconsistent with his present evidence in material respects and provides reason to doubt his evidence. The complaints have changed and have become more serious since the report to Mr Mullighan. That, by itself, is a reason to doubt the credibility of the complaint.
My function is not to determine whether the alleged events might have occurred or even if they probably did occur. I must be satisfied beyond reasonable doubt that each of them did occur.
For the reasons which I have mentioned I have doubts.
In each case there will be a verdict of not guilty.