R v B, TN - [2018] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, TN
Criminal Trial by Judge Alone
[2018] SADC 140
Reasons for the Verdict of His Honour Judge Slattery
18 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD
The accused is charged with four counts of unlawful sexual intercourse with a person under 12 years and one count of maintaining an unlawful sexual relationship with a child arising from allegations made by two of his nephews.
Verdict: Guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50(1); Evidence Act 1929 (SA) s 34M, 34P(2)(a), 34P(2)(b), 34R, 34S, referred to.
Hughes v The Queen [2017] HCA 20; R v Heinze [2017] SASCFC 155; R v Ahmadi; R v Hosseini; R v A, N; R v M, A [2018] SASCFC 39; R v Tran 2017] SASCFC 99, discussed.
R v Schultz (2016) 126 SASR 476; R v Douglass (2016) 126 SASR 126; Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699; R v Thompson [2018] SASCFC 104; AK v Western Australia 232 CLR 438; [2008] HCA 8; R v MJJ, R v CJN [2013] SASCFC 51; R v Ford (2009) 201 A Crim R 451; R v C, CA [2013] SASCFC 137; R v M, BJ (2011) 110 SASR 1; R v Bonython-Wright410 (2013) 117 SASR; The Queen v W, PK (2016) SASCFC 5, considered.

R v B, TN
[2018] SADC 140

The accused is charged on the Information for arraignment on 3 April 2018 with the following offences:
First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
TNB between the 25^th day of February 1983 and the 27^th day of February 1985 at Port Pirie, had sexual intercourse with SB, a person under the age of 12 years, by performing an act of fellatio upon him.

Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12 years. (Ibid).
Particulars of Offence
TNB between the 25^th day of February 1983 and the 27^th day of February 1985 at Port Pirie, had sexual intercourse with SB, a person under the age of 12 years, by causing SB to perform an act of fellatio upon him.

Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12 years. (Ibid).
Particulars of Offence
TNB between the 25^th day of February 1987 and the 27^th day of February 1988 at Port Pirie, had sexual intercourse with SB, a person under the age of 12 years, by performing an act of fellatio upon him.

Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12 years. (Ibid).
Particulars of Offence
TNB between the 25^th day of February 1987 and the 27^th day of February 1988 at Port Pirie, had sexual intercourse with SB, a person under the age of 12 years, causing SB to perform an act of fellatio upon him.

Fifth 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
TNB at Port Pirie, between the 4^th day of April 1987 and the 24^th day of October 1991, maintained an unlawful sexual relationship with CB, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards him namely:
a)     touching CB’s penis;
b)     masturbating in the presence of CB; and
c)     causing CB to touch TNB’s penis.
Elements of the Offences
Unlawful sexual intercourse
In order for the accused to be found guilty of unlawful sexual intercourse under s49(1) of the Criminal Law Consolidation Act 1935 (SA), I must make a finding that it has been proved to my satisfaction beyond reasonable doubt that sexual intercourse occurred between the complainant and the accused. Sexual intercourse is defined to include any activity consisting of or involving fellatio, and includes a continuation of such activity. The second element of the offence is that at the time of the sexual intercourse the complainant was under the age of 14 years.
Maintaining an unlawful sexual relationship with a child
In order to prove that the accused is guilty of maintaining an unlawful sexual relationship with a child under s50(1) of the Criminal Law Consolidation Act (SA) the prosecution must prove to my satisfaction each of the following four elements beyond reasonable doubt:
1That at the time of the offending the accused was an adult: a person 18 years or older.
2That the complainant was a child during the relevant period: a child is anyone 17 years of age or under.
3That the accused was in an unlawful sexual relationship with the complainant.
4That the accused maintained an unlawful sexual relationship with the complainant as a child. The word maintained carries its ordinary meaning: that is carried on, kept up or continued.
An unlawful sexual relationship as identified in element 3 is defined as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over the charged period. An unlawful sexual act means any act that constitutes or would constitute a sexual offence, including unlawful sexual intercourse, indecent assault and gross indecency.
Indecent Assault is an assault accompanied by or committed in circumstances of indecency and consists of two essential ingredients each of which must be proved beyond reasonable doubt:
1There was an assault. An assault is the voluntary and intentional unlawful application of force to another person. The application of force need not be great; need not cause any injury; must be voluntary and intentional, so that a purely unintended, accidental touching would not be sufficient; and must be unlawful, that is, without lawful excuse or justification. Examples of lawful excuse or justification might be self-defence, or when conducting a reasonable medical examination.
2The assault was accompanied by or occurred in circumstances of indecency. To be indecent the conduct must offend against ordinary contemporary standards of decency and propriety within the community, including anything which an ordinary decent person would find to be shocking, disgusting and revolting, and it has a sexual overtone.
For the purposes of identifying two or more acts to constitute an unlawful sexual relationship, it is not necessary that I be satisfied beyond reasonable doubt of the particulars of any unlawful sexual act that would have to be satisfied if the acts were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts.
The prosecution must satisfy me beyond reasonable doubt that the defendant engaged in at least two unlawful sexual acts with the complainant CB over the period alleged, that is, between 4 April 1987 and 24 October 1991. It does not matter which two or more unlawful sexual acts make up the unlawful sexual relationship, but I must be satisfied that there have been at least two of them.
Directions
In this decision, I have dealt with a number of matters of legal directions separately in different parts of my judgment. An example is forensic disadvantage, which I have dealt with at some length later in this judgment. Because I have adopted that method, it is only necessary to generally describe the other legal directions that I have given myself. I consider that the appropriate approach is to describe the appropriate legal direction applied by me when addressing the various matters which are usually the subject of legal directions.
There are some other matters that can be briefly stated. The prosecution bears the whole onus of proof of the guilt of the accused beyond reasonable doubt and the accused is not required to shoulder any burden of proof at all. He is presumed to be innocent of these charges unless and until the evidence which I accept has satisfied me that each element of the offences has been proved beyond reasonable doubt. Conversely, if I am not satisfied that the evidence before the Court has proved each of the elements of any of the offences beyond reasonable doubt then I would reach a verdict of not guilty in respect of that alleged offence.
As I reiterate a number of times during this judgment, I have treated the charges on the Information separately and I have only taken into account the evidence that is relevant and admissible in relation to the count under consideration. In making my assessment of the evidence and whether I am satisfied that any particular count has been proved to my satisfaction beyond reasonable doubt, I will take into account the whole of the evidence before the Court consistent with the approach of the Court of Criminal Appeal enunciated in R v Schultz (2016) 126 SASR 476 and R v Ahmadi; R v Hosseini; R v A, N; R v M, A [2018] SASCFC 39 at [71].
I have assessed each witness separately for their truthfulness, reliability, and credibility and in so doing, I have decided whether I could accept or reject all or any part of the witness’ evidence.
Even though the accused elected to give evidence, there was no obligation upon him to do so and I will assess his evidence in the same way as I assess the evidence of all other witnesses in the trial. In giving evidence, the accused has not shouldered any burden of proof which always remains with the prosecution. My approach has been that it is for the prosecution to prove each of the elements of the offences beyond reasonable doubt.
Later in this judgment, I refer to evidence led by the prosecution about a number of uncharged acts and other discreditable conduct which the prosecution alleges was committed by the accused. It is not necessary that I set out in detail that conduct here. I must be satisfied of the probative value of that evidence and the basis for its admission both under s34P(2)(a) and, separately, s34P(2)(b) of the Evidence Act 1929 (SA) (EA). Later in this judgment, I address in detail the operation of s34P, Q, R and S EA. I also separately address the basis upon which such evidence may be admitted and for s34P(2)(a) EA that I have satisfied myself that the evidence that I have admitted, is not admitted for a permissible use that relies upon a particular propensity or disposition of the accused as circumstantial evidence of a fact in issue. In relation to the evidence admitted under s34P(2)(b) EA, I may not use ‘bad person’ reasoning in relation to the charged and uncharged acts. I have not reasoned that as a result of the admission of this evidence the accused is a person of bad character and is the type of person who would offend in the manner charged or, alternatively, is more likely to be guilty of any or all of the charged offences. It follows that I have not reasoned that because of the number of charged and uncharged acts, the accused must be guilty of something.
In all of my reasoning, I have brought an open and unprejudiced mind to this case; I have made my decision without sympathy, without prejudice or fear and I have not been influenced by public opinion in relation to this matter.
Although this matter was not addressed by the parties themselves, I have considered that there was a further matter that must be stated in relation to legal directions. The evidence admitted under s34P(2)(b) and about which no contest was made by the accused, is what is generally described as proclivity evidence. I detail these matters later in these reasons. A matter which concerned me at the time that this evidence was given was that, if proved, the offending against the complaints SB and CB were, perhaps, the first manifestations of the proclivities of the accused. A question arose in my mind whether this fact should be taken into account and if so on what basis. Put another way, a question arose in my mind about whether the first or very early manifestation of a proclivity in the form of offending conduct should be viewed differently than later conduct when an accused may be more emboldened. I have decided that there is a logical flaw in that approach for two reasons. First, it cannot be known whether the conduct alleged by the accused against SB and CB is the first manifestation of a proclivity because within the limitation of a criminal trial, that is something that can never be known. It is a matter that should be put to one side. The second is that in all of the relevant decisions of both the Court of Criminal Appeal in this State and of the High Court which I discuss in detail later in this judgment, the Court does not temporally distinguish between the first and last manifestations of the proclivities of an accused. That is the only logical approach to take and that is the approach that has informed my reasoning in this matter.
An Overview of the Allegations
The relevant charges are alleged to have occurred between 1983 and 1991. The complainants are the nephews of the accused. The accused and the complainants’ father are brothers. The prosecution alleges that during this period and at least until 1990 the accused lived with his biological parents, the grandparents of the complainants, at their home in Port Pirie. Each of the complainants stayed regularly at the home of their grandparents and they would regularly sleep over at that address.
When they slept over, they slept in the accused’s bedroom on a fold-out bed.
The house in which their grandparents live consisted of three bedrooms, a lounge room, kitchen, laundry and a toilet facility which was out in the back yard and stood separately from the house.
The complainant, SB, alleges that from when he was about six or seven years of age, he stayed regularly at his grandparents’ home. This would be on a night of a weekend and in school holidays. When he did so, he slept in the accused’s bedroom. The accused is some eight or nine years older than him.[1] When SB needed to go to the toilet at night, he had directions from his grandmother to wake the accused, who took him out to the toilet. The outside toilet space measured about 1 m by 1.5 m. When SB went to the toilet, the accused, could fit into that space with him.
[1] Exhibit P14.
On one occasion that he can recall, he alleges that when he had finished urinating in the toilet, the accused, who was standing in the toilet with him, knelt down and commenced sucking on SB’s penis; this lasted for five to ten seconds. This is Count 1 on the Information.[2]
[2] The offence of unlawful sexual intercourse with a person under 12 years; at the relevant time, the act of fellatio was included within the definition of sexual intercourse.
After that event occurred, the accused allegedly stood up and said to the complainant ‘now it’s your shot.’ The accused exposed himself through his dressing gown and made the complainant suck his penis. This went on for about 10 seconds.
There was no ejaculation during this encounter and the two of them then returned to the main dwelling. At that time of returning to the accused’s bedroom, the accused said to the complainant, ‘this is our little secret, never tell mum or dad or you’ll get into trouble and they will get angry with you and you won’t be able to sleep here again.’
There were some four or five other occasions where the offending occurred in almost identical ways. These are uncharged allegations.
The last time something occurred was in identical circumstances of the accused sucking on the complainant’s penis and the complainant sucking on the accused’s penis. These are the subjects of the third and the fourth counts on the Information. At that time, the complainant was about 10 years of age.
The second complainant, CB, a younger brother of SB and nephew of the accused, also stayed over at his grandparents’ home and slept in a bed under the same arrangements as his brother SB. The regularity of staying was about the same as SB. The offences alleged to form part of the offence of maintaining a sexual relationship with a child were that the offending commenced when the complainant, CB, was about six years of age and the accused was about 14 years of age. The commencement date for this count is 4 April 1987, the date upon which the accused became an adult. All acts before that date are uncharged acts, and the only acts the subject of the complaint are those acts commencing from the time the accused was an adult person.
On the first occasion, when CB was about five years of age (in 1982/83), CB was asleep on a fold-out bed adjacent to the accused’s bed. He woke in the middle of the night to find the accused touching his penis with his right hand. The accused told CB to ‘shush’ and ‘be quiet’. Although he could not see what the accused was doing with his other hand, he thought that he could see his hand moving under the blanket of his bed. Although he did not know it at the time CB could now say that it was as if the accused was masturbating. CB complains that offending of this nature occurred many times over the course of the years and on many occasions and after the accused turned 18 years old. The accused was nine years older than CB.[3] As this behaviour continued over time, CB became certain that the accused was masturbating himself. He cannot be precisely clear on every occasion but it always happened in the same way.
[3] Exhibit P14.
The accused said to him on each of those occasions words to the effect ‘don’t tell your dad, he will belt you for lying and you won’t be able to come back.’
There was another type of offending and this occurred when CB was about seven years of age. The accused was sitting on his bed with his legs out flat and he got CB to sit across his legs near to his groin. The accused would bounce him up and down on his legs and at the same time would masturbate himself. That occurred many times and in the same way over the years when the complainant stayed at the accused’s home.
There was another specific occasion that CB recalls and that occurred when he was 11 years of age and the accused would have been about 20. They were in the accused’s bedroom, it was daytime and the door was locked. The accused undid his pants, dropped them halfway down his thigh exposing his penis and then said to CB ‘go on, play with it’. The accused grabbed CB’s hand and showed him how to masturbate the accused. On this occasion, the complainant CB has a memory of the accused ejaculating onto his chest.
This offending continued right through until CB started high school when he was about 13 years of age and the accused was about 22 years of age. Once he got into high school, he started playing sport and did not spend as much time at his grandparents’ home.
The accused was arrested by police on 19 August 2016 and at that time the police did a search of the premises wherein they located a large number of photographs which date back to the period of the offending and depicting a number of identified and unidentified children engaging in sexually explicit poses. There were a very large number of photographs of male children found and many of these showed children engaging in sexually suggestive poses and in that group of photos there are no other adults apart from the accused.[4] These disclose, on the prosecution case, that the accused had a sexual attraction to young prepubescent males and had a willingness to act upon that sexual attraction.
[4] There were other photos showing other adults but these do not fall within this group or category of photos.
The police also identified some 500 or so videos that were located in the home of the accused. These were all VHS recordings. A great many of these were recordings of legitimate TV shows that had been inter-spliced with pornographic films that had been made by the accused. Those homemade movies depicted identified and unidentified children engaging in sexually explicit acts. Some of those include the flashing of a child’s penis, a view of a child’s penis with the accused operating the camera and focussing the lens of the camera upon the groin area of the child.

Apart from one exception, the photographs do not depict either of the two complainants. They do depict the complainants’ younger brother, ScB. There is a single photograph that depicts the complainant CB when he was about 11 or 12 years of age. CB has no memory of that photograph being taken. He had no knowledge of its existence before being shown it by police shortly before the trial commenced. The accused had earlier identified the complainant, CB, in the photograph when he was interviewed by police.
The foregoing summary discloses that at the time that the accused allegedly offended against SB he himself was still a youth and was not an adult.
Prior to this trial commencing orders had been made in the Youth Court that the accused be tried as an adult in relation to that particular offending. I will proceed accordingly.
Evidence of SB
SB gave evidence. He is now 41 years of age and is one of four children. He is the eldest child in his family followed by his brother CB, his sister JB and his brother ScB.
His father passed away in 2000 when he was 23 years of age. His grandparents were RB and RaB and he called them Nan and Pop.
SB came to live at Port Pirie when he was about 3 or 4 years of age. His Nan and Pop were there and they always lived at the same address. The accused also lived at this address with Nana V who was his grandmother’s mother. SB called the accused Uncle T. He understood that his father was one of six children and he had two brothers and three sisters. He knows that CG and BO are his cousins and they are about five or more years older than him.
He said that when he grew up, he spent a lot of time at his grandparents’ home. This was mostly weekends and on school holidays. He also visited with his parents.
He often stayed overnight or just for the day. He would often stay overnight during the school holidays and on weekends. He never slept there on school nights.
SB remembers that he first started having sleep overs at his grandparents’ house when he was about five or six years of age. He thinks that when he did first stay, he was by himself; he cannot recall other siblings staying with him.
When he stayed, he would always sleep in the same room, the bedroom of the accused. The set-up of the accused’s bedroom remained the same throughout the time he stayed over. The accused had a single bed and there were cupboards around the walls. He said that he would sleep on an old type foldable bed which was placed on the floor next to the accused’s bed. Some furniture had to be moved so that this bed could be put out. Both of the beds were at about the same height as he recalled it.
He said that when he was at his grandparents’ home he played for hours with the accused. They played Connect 4, Star Wars figures, they went walking together, bike riding together and they got fish and chips down the street. He enjoyed these times enormously. He thought that apart from the issues that are the subject of the Information, the time he spent with the accused were the best times of his life.
SB said that when he stayed over at his grandparents’ place, he was sexually abused by the accused. He said that the form of this abuse was always the same acts. He recalled that it happened many times and consistently over a long period of time. He could not recall the first time it happened but he thinks it might have been when he was six or seven years of age. He recalls that he was wearing bright green pyjamas one evening and he recalls that the abuse occurred at night and sometime after midnight. That was because he knew that his grandfather was not up and knew that he went to bed every night at about midnight after the ABC television programs finished. He watched these programs on a television in the kitchen which was reasonably adjacent to the door of the accused’s bedroom.
He said that he had instruction from his grandmother to wake up the accused if he needed to go to the toilet which was situated in the backyard and which stood separately from the house. He was not to go to the toilet at night by himself. This is quite understandable. SB was a young boy in the care of his grandparents, the toilet was outside of the main house and a young child would likely have difficulties going out to the toilet alone at night.
On one particular night that he recalls, he woke the accused and said he needed to go to the toilet. They both walked to the toilet cubicle; he cannot recall the weather except that he was wearing his summer pyjamas. He needed to urinate.
He went into the toilet and the accused followed him. He pulled down his shorts and urinated. When that happened, the accused was standing to his side. He did not think anything strange about that. The accused was doing as his mother had told him.
When he finished urinating, the accused said ‘ok’ and then got onto his knees and put his penis into the accused’s mouth. Nothing was said. This lasted about 5 to 10 seconds and then the accused stopped and said ‘it’s your turn.’ The accused opened his dressing gown and put his penis into SB’s mouth. That lasted about 10 seconds until the accused withdrew his penis. His best recollection is that on this night, the accused had nothing on under his dressing gown but he cannot be sure of that. He recalls that the accused’s penis was erect but he does not think that his own penis was erect.
The accused then closed his gown and they walked outside. When they were outside of the backdoor of the house, the accused stopped him and said: ‘this is our little secret, never tell mum or dad or you’ll get into trouble and they will get angry with you and you won’t be able to sleep here again.’
He felt very scared at that and he had been smacked by his parents in the past and he knew what that was about. He certainly did not want to jeopardise the prospects of staying over at his grandparents’ house.
The accused then got him a glass of water and they went back to bed. Nothing was said after this.
SB recalled thinking that what had just happened was normal because he did not know any different. He did not say anything to anyone the next day because he thought that if he did he would get into trouble. He can recall that this type of event happened a few more times and always in the same location and always in the same sequence of events. He can recall on each occasion that this conduct occurred having a number of conversations with the accused where the accused said: ‘just remember, don’t tell anyone, this is our secret, you don’t want to get into trouble.’ He can recall thinking that there could not have been anything wrong with what the accused was doing. He thought it was really exciting to have a secret with his Uncle T and in his own mind that made him the best of all of the cousins.
He said that on the last occasion on which this conduct occurred, he can recall wearing a pair of light blue striped pyjamas. They had white and blue on them. He could recall another occasion when such an incident occurred, he was wearing red short style pyjamas which had racing cars or robots on them. He recalled that the incident that occurred when he was wearing these pyjamas was the same type of incident that had occurred earlier. He was simply wearing a different set of pyjamas. On each occasion he had the same conversation at the backdoor. In his police statement SB did not recall the incident when he was wearing the red pyjamas. That has come to him since. He was cross-examined at length about this and strong submissions were made by the accused about this casting doubt on the credit worthiness of SB. I do not agree. In a criminal trial it is very often the case that witnesses have recollections of things as time passes. This is an example. I do not accept that this revival of a memory strikes at the credibility of SB. To the contrary, he informed the court of another memory and in so doing he was obviously trying to assist the court as much as possible
On the last occasion that he can recall, he was about 10 years of age. The event occurred after midnight when he awoke the accused to go to the toilet. No one else was awake in the house. On this occasion, the accused pulled his pants down and put SB’s penis in his mouth. The accused then placed his own penis in the mouth of SB. He sucked on the accused’s penis for some 10 to 15 seconds until the accused stopped him. The accused had an erection, and in the same fashion, they had a conversation at the back door, they had a drink and they went back to bed. He recalled that the next day sometime after lunch his father came and picked him up.
At that time, he was living at a new address in Port Pirie. He recalled living at an earlier address from when he was between six and nine years of age. They moved to the new address shortly after his 10^th birthday. That final incident occurred when he lived at the new address.
SB was not aware of ever being photographed by the accused in his childhood. He is also aware that his brothers CB and ScB and his cousin PW have made allegations of sexual abuse by the accused. He has not spoken with CB about those allegations. He was aware of the charges that his brother ScB had brought against the accused but nothing else. He knows of the charges because he has read the Information. He has not spoken to PW.
He was taken through the bundle of photographs[5] and he was not able to identify the children in the photographs. He could identify that each of those photographs was taken in the accused’s bedroom.
[5] Exhibit P2.
He said that although he could not remember how many more instances of conduct after the first incident occurred but his clear memory was that there were at least three instances. He can recall an incident occurring when he was wearing his green pyjamas. He had not mentioned the green pyjamas in his first police statement but he was not asked what he was wearing either in the first statement or the third statement. He agreed that he had not mentioned the blue and white striped pyjamas, however, he said that as time has gone on, he has better and better memories of things and some memories have come back to him. One of those memories is those blue and white striped pyjamas. Another memory that has come back to him was that the accused had a short sleeved dressing gown in summer and a long sleeved one in winter. He can recall the accused wearing a shorter dressing gown when he was wearing his shorter pyjamas and a longer dressing gown when he was wearing his longer pyjamas.
SB also recalled that the accused was going to school at the time of some of the offending occurring. He had no knowledge that the accused had had children in 1983, 1984 and 1986. All he could remember was the accused moved into a flat when he was 20 or 21 years of age. He visited him at the flat on a number of occasions.
SB could remember some conflict between the accused and his own mother and father. The accused wrote a letter many years ago to his mother that caused a number of issues. This was sometime after 1990. He did not ever see the letter and knew nothing of its content. He knew that there was some upset between his parents in relation to the fact of the letter but nothing more. He has never given any thought to it since that time and the matter has not been discussed.
SB knew nothing of any suggestion that ScB, his brother, stole money from the accused. He knew of PW and that PW also stayed at his grandparents’ home. He had an understanding that the accused was in some form of relationship with the mother of PW. He knew that the accused played Keno a lot but he did not know whether he won any money or what he did with his winnings.
SB said that there was a very unfortunate incident at the wedding of his sister JB in 2004. The reception was held in the club rooms of a local football club. There was an altercation between CB and the accused. He recalled there being a fight and he recalled breaking up the fight and taking the accused away from the fight and walking him to the edge of the perimeter fence and sending him on his way.
He said that in 2014 or 2015 he was in a house of a friend and they were sitting out the back having a beer. The friend told him that he had been abused as a child. He said to his friend that he was not alone and that he had been sexually abused also. He thinks this was the first time he had ever mentioned this topic to anyone.
He had not discussed that matter with his siblings. In 2012 he and his brother CB were having an argument. CB texted him saying that he enjoyed ‘sucking on T’s dick’, or words to that effect. He did not respond and the topic was not mentioned again.
After the accused was charged with these offences, SB engaged in a number of Facebook communications. These are reflected in Exhibit D3. He was shown these after denying that he had communications with his siblings about these events. SB said that these Facebook messages were posted to his Facebook site when he was drunk. He put them up and then removed them straight away. It is not clear to me that he technically sent them to anyone however any ‘friend’ on his Facebook page could read them. It is not clear precisely who may have read this material. There were responses and so at least those people did so. An important issue is that the post is not completely inconsistent with the evidence of SB because there has been no discussion as such, only a post and some responses, none of which name the accused.
SB can recall an event on 23 August 2016. He was driving his motor vehicle in the town. His wife and child were with him. The accused waved his vehicle over to the side of the road. The accused got out of his car and came to SB’s car. SB got out of his car as did his wife. The accused had a bundle of papers in his hand and was waving them all about the place. He was obviously very agitated and he said words to the effect ‘the filthy fucking cunt cops raided my home, they took everything, everything that I’ve worked for, they took it.’ SB asked him ‘what did they take?’ He was then given the papers in the accused’s hands which he then passed to his wife after reading them. He read the accusations against the accused by his brother ScB. He became physically affected by what he read. The accused said to him words to the effect ‘I didn’t force him to have sex. They did it on their own. I never forced them, they took everything.’ SB said that he then gave the papers back to the accused and his wife grabbed him and said that they needed to get out of there. He and his wife went home. They had a conversation. After that conversation he called his brother CB and told him what had happened. He said that he gave his brother a run-down of what he had seen on the charge sheet or on the summons. His brother said to him ‘you know he did it to me don’t you?’ and SB indicated that he had assumed that because of the way he acted towards the accused. CB said to him ‘if he’s done it to me he’s done it to you’ and then CB said that he knew that the accused had done it to SB. It was then that SB admitted that he had been molested by the accused. There was no other conversation about it. He was upset and ended the conversation. The next day he called the police and made his complaint.
Evidence of CB
The prosecution then called in evidence CB. He is 39 years of age and he is the second child in the family. He has an older brother SB, a younger sister JB and a younger brother ScB. His parents were CoB and WB and RaB was his father’s brother. His Aunty was named EO and she was called B. She was married to DO and they had a child BO. His Aunty VG had a child CG.
The accused in this matter is his Uncle whom he had always called Uncle T when he was growing up.
In Port Pirie, his memory is that he lived in three houses. After the first house, the family then lived at the second house until he was five or six. His parents then bought a third house in the town. He lived there until he left Port Pirie to move to the southern suburbs of Adelaide.
His father’s parents were RB and RaB whom he called Nan and Pop and they lived in Port Pirie. His Pop passed away when he was about 19 years of age and his Nan is still alive.
When he was growing up, the accused lived at CB’s grandparents’ house and the only other person who lived with them was a great grandmother, V, but he thinks that she died when he was very young. His memory is that the accused lived there until CB started high school when he was 12 or 13 years of age. He identified on Exhibit P1 the room occupied by the accused. He said that Nana V would sleep in the spare room but no one had occupied that room for many years. He described the lounge room, the kitchen, the bathroom and the outside toilet.
His grandparents’ home was like a second home for him. He stayed most weekends but spent holidays with his own family. Sometimes he went on holidays to Port Broughton with his Grandparents’ and the accused.
He certainly slept over at their home a lot of times and that started when he was about five or six years of age. He would sometimes sleep over from Friday to Sunday. He never slept over on school days and so the period during which he slept there was between the times when he was about five to six and when he was 12 or 13 years old.
When he stayed over he always slept in the room of the accused. He slept on a fold-out bed. He could not ever recall staying over with his siblings. His recollection is that the children stayed one at a time and he cannot recall a sibling ever being there with him at the grandparents’ house. His sister never stayed there but his older brother SB stayed there a lot.
CB said that the accused’s bed was a single bed and he would sleep on the fold-out bed on the door side of the accused’s bed. A cabinet on the door side of the accused’s bed would be moved to make way for the fold-out bed. The two beds would be touching with no gap.
CB said that he always slept in pyjamas and the accused always slept naked.
The first sexual incident occurred when he was asleep. He awoke to find the accused with his hand on his penis and he was using the other hand on himself at his crotch. His hand was under the blankets and he could not see it. It was also dark. He could see the accused’s hand moving up and down in the area of his crotch. At the time CB was wearing summer pyjamas which was a short sleeved top and pants.
When he awoke his blanket was still on his bed and the accused’s hand was under his pyjamas and his underwear. The accused was moving his hand up and down on the area of his penis. He was too young to really realise what was happening at the time. He did not realise or understand what the accused was doing. He did not know until later that this activity was associated with masturbation.
During this event, the accused said to him that he should be quiet. He said words to the effect ‘shush C’. He always called him C. CB did not do or saying anything because he did not understand what was going on.
He thought the incident lasted for under a minute but he could not say how long. He could not say if he had an erection or if he ejaculated and he did not know why the accused stopped what he was doing. Afterwards they both went back to sleep and nothing was said.
In the next morning, the two of them did not speak about the topic and he did not speak about it to anyone. He did not say anything because he thought no one would believe him if he did say what had occurred. Also, he did not understand the incident and did not know what was going on.
After that time, on each occasion generally when he stayed, he awoke to the accused masturbating his own penis and after having placed his hand on the penis of CB. It always was the same behaviour that occurred and was repeated right up until the time that he stopped staying at the house. By that time the accused was 20 or 21 years old and CB was 11 or 12 years of age.
The occasion when he first saw the accused’s penis involved in such conduct was when he was bouncing on the accused’s lap. He thinks he was about seven at the time and this occurred about two years after the start of the incidents of masturbating in bed.

The first occasion of his bouncing on the accused legs was in the accused’s room at night. They had gone to bed but not to sleep. The accused was naked. He said: ‘come over here CB and bounce on Uncle T’s legs.’ At that time, the accused was lying flat and CB would bounce up and down on his thighs whilst facing the accused. At the time, the accused would masturbate. It did not last long and it ended quite quickly. He recalls that the leg bouncing events happened a multiple of times over the following years.
He can recall on one occasion another type of event occurred during the day. It was about lunch-time and he was called by their Nan who said that lunch was ready. The accused responded with words to the effect ‘give us a second mum.’ They were both in the accused’s room at the time. The room had a lock on the inside of the door, it was as bolt type lock which could be locked with a padlock.
After his grandmother had spoken, the accused pulled down his pants, exposed his penis and said to CB ‘touch it C, touch it.’ The accused then told him to touch his penis and to masturbate it. The accused’s penis then became erect and he soon ejaculated. This was the first time he had seen this happen. The accused then went to the bathroom and CB then went to the kitchen. Nothing was said about this event. He did not tell his grandmother because the accused had told him not to tell anybody. This event occurred when CB was about nine years of age. In his statement to Police CB said that when the accused responded to his mother he said words to the effect of ‘Give us ten minutes mum. We are just finishing something.’ The accused made much of this difference in cross-examination and submissions and challenged the credit worthiness of CB. I am unable to agree. There is obviously a difference between the versions but in my mind they are really interchangeable forms of expression that are not materially different. The importance of the evidence is that the accused needed to delay his mother because of what he was doing with CB. There was never a change to that version of events and so the attack of the accused is quite misplaced.
When CB was between the ages of nine and 13, the accused did not wait for him to go to sleep before he reached over to touch CB’s penis. He has a recollection that the accused was very happy about the fact that this was happening so often.
CB thought that he was about 12 years of age when the final occasion of abuse occurred and this was at about the same time that the accused moved out of his grandmother’s house.
The accused moved into a flat and he did not make any advances to him after that time. CB had started to mature by that stage. He also thought that he had stopped staying at his grandmother’s house prior to that time. From the ages of between 12 and 13 years he had developed a keen interest in sport.
From the commencement of the occasions when he was touched on the penis by the accused, the accused said to him, ‘don’t tell anyone this is happening, you know if you tell your dad a lie you’ll cop a fucking flogging from your dad, so keep it quiet, don’t tell anyone.’ This was said on most occasions and CB’s father was quite strict and had given him ‘floggings’ in the past.
CB described the accused as a golden child in the family. You could not say anything wrong about the accused in his grandparents’ home or his grandmother RB would become very angry.
CB witnessed the accused sexually abusing his cousins CG and BO. They were in his room with him and the accused was telling them to take turns in sucking his penis. CB said something about it not being right that this was happening, and the accused then got out his monkey mask which he used to frighten CB. CB said that everyone knew that he did not like this monkey mask. He thinks he might have said words to the effect that he wanted out or he would tell his mother. When the accused put the mask on he screamed and ran out of the room. His mother was in the house and she said to the accused ‘fucking hell T, you haven’t got that fucking monkey mask on again?’
In about mid-2016, he received a telephone call from his brother SB. SB asked him whether he had heard what ScB had done, that he had been stopped in the town by the accused who had shown him some paperwork and ScB had had the accused charged on sexual matters. CB said that he had not spoken to ScB about that and he said to SB words to the effect: ‘you know that mother-fucker did it to me.’ When he said this to SB, CB used a form of nickname for SB. SB often said ‘I’m not stupid, if he’s done it to me then he’s obviously done it to ScB and he’s probably done it to you.’ He said that SB went very quiet. After a period, he said: ‘yeh man, he did it to me.’
After that time, CB sat his family down and spoke to them. He and his partner have 11 children. He sat them all down and informed them what had happened.
He rang Detective Clonan. He missed him on a couple of occasions and then a couple of weeks later went in and made a statement to a detective in Christies Beach. At that time, he did not know the details of ScB’s or SB’s alleged abuse. Detective Clonan told him about the photographs and the videos. He had not seen them. Detective Clonan did not say who was in the photographs or the videos nor did he give any details of them.
The first time he saw any photographs was in the Office of the Director of Public Prosecution on the Thursday before the trial started. He identified photograph 16 and said that he was the person in the photo. He is naked. It is dated 28 February 1989 and would have been 11 or 12 at the time. He has no recollection of the photograph being taken. He had not seen it and did not know of it. He looked at photograph 17 and said that he could identify the pyjamas but he could not identify anybody in the photo. He said the pyjamas were similar to the ones that he and his brother would wear. The accused identified that the person in that photo was CB.
In photograph 4, he identified the location as the accused’s room and he could identify the blanket usually on the accused’s bed. He identified PS as the person in the photograph.
In cross-examination he confirmed that the abuse continued until the accused left his grandmother’s house. That was in 1990.
He also said that within the family, there were many disputes between brothers, sisters and cousins. For example, EO, who was the accused’s sister, did not come to Christmas celebrations because the accused was not allowed near her children. They had some sort of fight. He could not recall CG and BO being at the house very often and he could not recall why, on the particular occasion that he recounted to do with the monkey mask, that CG and BO were at the home.
At some time in the past, he has had a conversation with PW about the sexual abuse that occurred with him. He said that last time that he spoke to PW was about 10 years ago. He said that in that conversation there was a lot of ill feeling towards the accused. PW told him about having to suck the accused’s penis. CB was upset for PW.
He confirmed an incident at his sister’s wedding which occurred in 2004. The incident occurred between he and the accused. He recalled that the accused walked up to and punched PW in the head during the reception of the wedding. At that time PW’s mother and the accused had ended their relationship. The accused had been told not to come to the wedding reception. He could go the church. He recalled that the accused walked up to PW and punched him. This all happened adjacent to the family table at the reception. At that time CB had been drinking heavily and was quite drunk. He said that he bailed up the accused in the kitchen and he may have hit him but he cannot remember. He recalls that SB took the accused away. He does not recall how far. He later drove to the accused’s home. He yelled out at the accused’s home ‘you’re going to get fucked up tonight you paedophile cunt.’ The accused did come out with a baseball bat. He said that that was not the first time that he had been at the accused’s home to punch his head in. He said he did not need PW to do that. He had been there on a number of occasions. He said he got so angry at the wedding because the accused had hit PW and this was very disrespectful to his sister at her wedding. He could not recall PW saying anything inflammatory to the accused.
CB agreed that Exhibits D3 and D4 were Facebook communications. He says that he has threatened to kill the accused on many occasions but he has never tried to extort money from the accused and he certainly has never threatened the accused as a result of what he thought the accused did to PW. His conversation with PW was many years after the wedding. His attitude to the Facebook posts in which he was involved was largely the same as for SB. They were put up in anger and could be seen by anyone who had befriended him on Facebook. There is no direct reference to the accused but it is implicit. People weigh in with their views so information is shared even though there is no direct conversation.
Detective Brevet Sergeant Paul Clonan
Detective Brevet Sergeant Paul Clonan gave evidence. He said that on 25 June 2016 CB gave his statement to a police officer at Christies Beach and that officer has had no other connection with the matter. As a result of a statement received from ScB a search was made of the accused’s home.
Officer Gwilym seized a number of items including hundreds of photographs and some 500 or more video tapes from the house and from the rear shed. The photographs were taken from the hallway or the lounge room. There was a main bedroom and a second bedroom. The second bedroom was cluttered and did not appear to be slept in. The lounge room was also very cluttered. More videos were taken from the main bedroom. At that search he arrested the accused based only on the information police had from ScB at the time. On 26 August 2016 he took a statement from SB as a result of SB contacting him. He had not sought SB out. Later, police were contacted by CB and he arranged for a statement to be taken from CB; this occurred on 5 September 2016.
As part of his task, he reviewed over 300 videos. There are 200 videos that have not been viewed as they did not have the facilities. Viewing videos of this nature raise occupational health and safety issues due to the content including child pornography. South Australian Police have an Occupational Health and Safety Rule that content is not to be viewed for more than two hours.
He then took a statement from a Mr DK on 8 March 2017. He tried to call PW but he did not wish to speak to him. He tried to take a statement from CG but he did not wish to speak to him. He tried to take a statement from BO but he also did not wish to speak to him. He has not attempted to take a statement from PS.
In his evidence, Detective Clonan went through the photographs. He is able to identify PW, PW’s mother, PW’s sister and the date range for the photographs. The date range is between 1983 and 1993. Some of the photos identify people such as a person called D, a person called C, DK; he was also able to identify in the photographs Nana (RB) and Pop (RaB).
In another bundle of photographs he was able to identify a person called Da.
In another bundle of photographs (Exhibit P9) he is able to identify brothers RM and TM; DW, TB and a boy called TH. There was also another bundle of photographs within Exhibit P9 featuring GL. He has been unable to make any contact with GL. The GL photos are all dated somewhere in 1995. He has utilised school staff in an attempt to identify these children.
In Exhibit P10 he was able to locate photographs of ScB and further photographs of TB. In Exhibit P11 there is a bundle of photographs of PW.
Exhibit P2 comprises a separate bundle of photographs located within a video cover which was located inside of bedroom one as identified in Exhibits P1 and P1A. It contained a green envelope and a videotape. This tape contained pornographic material of a young boy. He has tried to make contact with DW about these photos but he refuses to communicate.
Arrangements were also made for the accused to view this material at the Port Pirie Police Station. He was shown Exhibit P2 and he said that photographs 13 and 16 were CB.
Over 300 video tapes located at the accused’s home were processed and each item was booked. Some videos were family videos, television shows and also main stream pornography and child exploitation material. Some of the child exploitation material was contained in the video with other material.
What had occurred was that the child exploitation material was inter-spliced into family videos, television shows and other material. He then created a table in relation to the footage which is MFI P12 and then he has reduced that material to a disk, Exhibit P13. That exhibit was then played to the Court.
Summary of video evidence
In giving a description of the content of the exhibits, I will need to make reference to an exhibit label, a description of the video evidence, the date on the video and, where possible, the identification of the victims. So much may be seen on the face of MFIP12. However, because of what follows, it is necessary that I set out a sufficiently detailed description of the materials. I reiterate that this material was identified upon some 300 videos that were reviewed by the police and about 200 of the videos were not viewed. When this material was viewed, portions of it were extracted and those portions became Exhibit P13. That exhibit is divided into particular portions. Those portions of video show the relevant material that I describe hereunder. Within the transcript[6] it was confirmed that if a particular portion is mentioned twice, it is because that portion found its way onto a videotape on a number of occasions. Therefore, to the extent that there is a description of a particular item on a video, that does not mean that the item only appears once. The greater likelihood is that the particular item may be found on a number of occasions on various videos.
[6] T276.5.
The first entry called New Exhibit Label FR-1 is dated 20 April 1995. It shows a male person masturbating into tissue; enquiries of the police have identified that the male person is GL. In his evidence, the accused said that he was in a same-sex relationship with GL over a long period of time. I will discuss that evidence later in these reasons.
The second item, also carrying New Exhibit Label FR-1 is a file of the crotch of a male aged up to 15 years. The video is dated 8 April 1995 and the victim is unknown. The tape records words spoken by the victim and shows him putting his hands down the front of his pants and masturbating. At the time that this film was taken, that child is watching pornographic material on a television with the accused.
The third film which carries the date 6 July 1993 shows two young boys about 11 years of age. The content of the film suggests that one of the boys is named J and another may be named A. This is not certain. The content of the film showed one of the boys pretending to masturbate with his clothes on by using hand actions. There is then suggestive posing by the boys and the video is taken of the boys’ groin area. Then, one male flashes his penis and scrotum and the other flashes his anus. All of this is filmed by the accused.
The fourth film is also dated 6 July 1993 and involves the same two young boys of about 11 years of age; this is a film of each of the two boys flashing his penis, scrotum and his anus.
The fifth film carries the date of 1 July 1994. It is not possible to identify the victims because of the nature of the film. The film is taken in the rear yard of a home at night. The video is taken by the accused. The video shows a male juvenile of about 10 years of age flashing his penis.
The sixth film carries the date of 5 December 1994. The film is taken by the accused because his voice can be heard on the film. The film is of a male juvenile of about 10 years of age. The film is taken at night in the rear yard of the accused’s home. The film shows the male juvenile of about 10 years flashing his penis. On the video, taken by the accused, the voice of the accused can be heard encouraging the child to expose himself. This male child is unidentified but is a different child to the children who are portrayed in the second, third, fourth and fifth videos.
The seventh video which carries a new Exhibit Label FR-3 is known to be a video of GL. The accused admitted that he was in a same-sex relationship with GL. It is known that GL was born on 25 October 1977. This video was taken on 23 October 1995, some two days before his 18^th birthday. The video is of GL naked in the shower.
The eighth video is of the same person, GL, also naked in the shower. The video shows sexual activity between the accused and GL in the shower. There is no date attributable to this video.
The ninth video carries the New Exhibit Label FR-4. It carries the date 12 June 2000. It is a video of PW, the son of a woman with whom the accused was allegedly having a relationship. The video carries audio of the accused speaking to the victim. At the time the video was taken, the male juvenile PW is 13 years of age. On the tape, PW is shown exposing his penis, his scrotum and his anus to the taker of the video. On the video, the accused can be heard speaking to PW and saying words such as ‘it’s bigger than mine’ referring to the penis of PW. The accused then videos PW masturbating his penis and can be heard suggesting to the victim that he should get into a position where he can video him. When that occurs, the accused videos himself masturbating the penis of PW on multiple occasions.
The 10th video carries the New Exhibit Label FR-5. It is dated 24 March 1999. The child identified on the video is DK and his date of birth is 15 April 1983. In the video, the accused is seen having sexual intercourse with DK on a bed. The form of sexual intercourse is fellatio. The film also shows the accused bouncing DK on his legs in the same fashion as is described by CB in his evidence. At the time, DK was about 16 years of age.
The 11th video carries the New Exhibit Label FR-6. It has not been possible to identify the male victim in the video. The date on the video is 7 March 1994. The police have assessed the age of the male victim as being 16 years of age. I have watched the film. I think that this assessment of the age of the juvenile victim is incorrect. My assessment is that the child cannot be any older than 14 or at the least 15 years of age. In this video, the accused films the male juvenile watching pornography on the television. When doing so, the accused takes a video of the buttocks and groin area of the male juvenile. At that time, the male juvenile is still wearing clothes and there is no exposure.
The 12th video is marked New Exhibit Label FR-6. There is some confusion about the date. It carries a date of 5 December 1994 but more likely the correct date is 12 March 1994. The victim has not been identified but he is very young and appears to be between 12 and 13 years. The accused is taking the video film. The film shows the unknown male juvenile lying on a mattress on the floor. The juvenile male exposes his penis and the video then shifts to the male when he is lying on the floor and clothed. The video then concentrates on the victim’s buttocks and groin area. There is audio on the video tape in which the accused can be heard to say to the victim to do something. The victim is recorded as saying ‘I’m tired.’
The 13th video carries the New Exhibit Label FR-6. The date of the video is 6 December 1994. The victim within the video is the same victim as in tape number 12. He is an unknown child of between 12 and 13 years of age. In this video, the accused films the male child flashing his penis.
The 14^th video is a film starting on 27 May 1995 of sexual intercourse between the accused and GL. It is irrelevant to these matters.

The 15^th video carries the New Exhibit Label FR-7. There is not date upon the video. The identity of the victim is also unknown. The accused is shown on the video. He is shown to be engaged in sexual intercourse with a young teenaged male. The form of sexual intercourse is fellatio and masturbation. A close examination of this video discloses that the male is likely aged between about 14 and 15 years of age or perhaps younger. Distressingly, it is apparent that the male is either suffering some form of deficiency or, on my observation, is perhaps suffering the effect of a drug of some sort.
The 16^th video carries the New Exhibit Label FR-8. It carries the date of 2 December 2002. The police suspect that the young male shown on the video is JB whose date of birth is 1 April 1988. There is audio on the video as well. The young male speaks. His voice has not broken. On the video, the young male, JB, talks about his ‘wiener’. On the video, the accused asked to have a look at JB’s wiener.
The 17^th video carries the New Exhibit Label FR-8. The date of the video is 6 October 2002. The video shows two young boys, ScB, the brother of the complainants in this matter who was born on 30 June 1987 and PW, who was born on 3 August 1987. The two boys, ScB and PW, are filmed by the accused playing video games in the lounge room of the accused’s home. The video is taken by the accused.
The 18^th video carries the New Exhibit Label FR-8. The date on the video is 24 November 2002. PW and another male are shown on the video. A nickname is used for the other male and that nickname was given to the accused. The film shows PW and the other young male of about 11 years of age (thought to be TB). TB flashes his penis. The accused takes the film and concentrates the video on the groin area of TB.
The 19^th video which also carries the New Exhibit Label FR-8 is dated 1 December 2002. It shows the same participants, two young boys, PW and TB. The young male (thought to be TB) shows his erect penis to the camera and he is filmed by the accused.
The 20^th video carries the New Exhibit Label FR-8. The date stamp on the video is 20 December 2002. However, it is apparent from the audio on the video that the correct date is 21 December 2002. There are two young males shown on the video. PW, who was born on 3 August 1987 and JG who was born on 1 April 1988. The video, taken by the accused, filmed PW and JG playing around in the home of the accused. PW attempts to put his penis in JG’s face and the accused, on the audio of the video, can be heard asking JG to expose his penis. The film then shows the two young boys watching pornography on the television. The film then moves to PW who exposes his penis and his anus directly to JG who can be seen resisting the attempts of PW. The film then shows PW taking JG’s hand and placing it upon his penis and moving it up and down to masturbate his penis. The film then shows PW on his hands and knees on the floor and JG placing a large vibrator into the area of the anus of PW. The accused’s voice can be heard on the video. He can be heard to say to JG not to do that, ‘you will kill him.’ The accused continues to video the incident.
The 21^st video carries the New Exhibit Label FR-9. There is no date upon the video. There is a young male shown on the video who is a teenager. The age of the male is unknown. The video shows the accused and the unknown teenage male engaging in fellatio and masturbation whilst watching pornography and whilst lying on the bed of the accused in his home. There is audio upon the video and the accused can be heard speaking to the unknown male when he undresses him. He said words to the unknown male to the effect ‘don’t worry, it’s only for us.’
The 22^nd video which carries the New Exhibit Label FR-10 involves a video of GL.
The 23^rd video carries the New Exhibit Label FR-10 and is dated 21 April 1995. It is a video of a young male aged about 14 to 15 years of age. The identity of the young male is not known. The young male is shown with his hands down the front of his pants playing with his penis. The accused is filming the behaviour of the young male. The accused on the audio of the video can be heard encouraging the young male’s behaviour. This is the same footage as for item two.
The 24^th video carries the New Exhibit Label FR-11. It is dated 5 February 2000. It is a video of the two brothers RM and TM. At the time, RM is 12 years of age and TM is 15 years of age. The video is taken by the accused. His voice can be heard on the video. RM and TM are seen in the lounge room of the accused’s home. TM pulls the pants of RM down exposing his penis.
The 25^th video carries the New Exhibit Label FR-11. The date of the video is 29 December 1999. The child shown on the video is ScB, the younger brother of the complainants in this matter. The date of birth of ScB is 30 June 1987 and he is 12 years of age at the time that this video was taken.
In the video, ScB exposes his penis whilst being filmed by the accused. The accused can then be heard to say on the video: ‘… I wonder how big it is when it is stiff. Show your arse’. The accused then continues to film ScB.

The film shows ScB with an erect penis exposed. The accused can then be heard to speak to ScB and say to him ‘turn around, I want to see it when it’s really hard.’ At the time, the accused and ScB were watching pornography on the television.
The 26^th video carries the New Exhibit Label FR-11. It carries the date of 30 December 1999. The child shown in the video is ScB, the youngest brother of the complainants who, at the date of the video is 12 years of age.
In the video, ScB is shown watching pornography on the television with the accused. The accused is filming them both watching pornography. ScB then exposes his penis and the accused, holding the camera, zooms in on his penis. The accused says to ScB: ‘… let me see how big it is, stand up’. The next part of the video is the accused filming ScB who is standing outside urinating.
The 27^th video carries the New Exhibit Label FR-12. There is no date on this material. The victims of the video material are unknown. It is pornography. It shows stills of young males involved in incest and child exploitation material.
The 28^th video carries the New Exhibit Label FR-13. The date of the video is 18 March 2000. The young male shown in the video is PW who was born on 3 August 1987 and is aged 13 years. The video shows PW in the lounge room of the home of the accused and there is sexually suggestive talk by the accused heard on the audio of the video. The accused is heard to say to PW ‘show me the snake’. PW then shows his penis to the accused and the accused zooms in and films a close up of his penis. The accused is heard to say to PW: ‘you haven’t even got hair on your balls, it’s not even stiff, stand up’.
PW is then seen to look at the video and say ‘I hope my mum doesn’t see that’. The accused is then heard to say on the video ‘it’s not on (referring to the video)’. PW is then heard to say ‘you’re lucky’. The accused is then heard to say ‘yes I know, I wouldn’t want your mum to see that.’
The 29^th video carries the New Exhibit Label FR-13. The date of the video is 15 April 2000. The child shown on the video is PW whose date of birth is 3 August 1987 and who was 13 years at the date of the video. The video taken by the accused shows PW exposing his penis. In the course of this conduct, the accused films himself touching the penis of PW.
The 30^th video carries the New Exhibit Label FR-13 and is dated 17 April 2000. The child shown in the video is PW and at the date of the video he is 13 years of age. In the video, PW can be seen taking the video camera from the accused. He then videos the accused on the film. Later in the film, PW can be seen exposing his erect penis and the accused takes a close up film of the erect penis of PW. Later in the film, the accused takes a video of PW urinating in the back yard.
The 31^st video carries the New Exhibit Label FR-13. It is dated 27 April 2000. The child shown in the video is PW who was 13 years of age. In the video, PW can be seen exposing his penis and later, the accused is filmed naked with PW lying on his legs with his penis and anus facing the accused. In the video, the accused can be seen touching his own penis and then later there is film of the accused naked. Later, the film shows the accused pulling down the pants of PW and exposing his penis. The film then shows the accused masturbating the penis of PW.
This material is relevant on a number of bases the principle of which are in relation to tendency evidence following the decision of the High Court in Hughes v The Queen[7]; the discussion of the Court of Criminal Appeal in R v Heinze8 and on other questions of credit relating to some of the responses given by the accused in cross-examination, particularly about his attraction to the complainant CB and having regard to the offending which he has admitted against the complainants’ younger brother ScB. I will discuss those matters later.
[7] [2017] HCA 20.
8 [2017] SASCFC 155.
Evidence of DB
DB gave evidence. She had been married to SB for six years. She can recall an event on 23 August 2016. She recalls it because the accused pulled their car over near the TAFE in the town of Pt Pirie. She was a passenger in the car driven by her husband SB and she saw the accused flash his lights for SB to stop their car, but she then looked around to care for her child who was crying. Her husband pulled over his car up behind the accused’s car. She got out of her seat and sat in the back with the baby. The sliding door of the car was open. She heard the accused say to SB ‘look what your brother has done to me’ and she saw the accused give SB a piece of paper. He was swearing and was agitated. She saw her husband read the papers. He started to look angry. He put his hands in his pockets which she knew generally was a sign that he did not want to hit anybody.
She then took the papers from SB and heard SB say to the accused ‘well what fucking evidence have they got, they need to evidence for this to happen.’ She started to read some of the papers but did not finish them. She said to SB ‘we need to go, please let’s get in the car and go.’ They drove off.
She thought that the conversation lasted 10 minutes and she could not really recall anything else that was said. All she can recall was the accused saying to him ‘how do I tell my mother about what your brother has said.’ The brother to whom the accused was referring was ScB.
She agreed that in the course of that conversation she was, to an extent, distracted by the caring for her child. She agreed that in her statement to police she did not mention anything about swearing but said there was a lot of swearing going on in the course of that event. I am not troubled by this, nor do I consider it is an inconsistency. The purpose of this evidence, which eventually was not put in issue, is the conversation of the accused making a complaint to SB about the fact that his younger brother ScB had made a complaint to police as a result of which the accused was charged. As I later develop, the accused has entered guilty pleas to some of the charges relating to the complaints of ScB. Some of the conduct of the accused recorded in Exhibit P13 that I have earlier summarised is the basis of some of the charges against the accused.
The second aspect of importance here is that following this event and later conversations, SB also made a complaint to the police. In that context, whether or not DB said in her police statements that there was swearing is largely beside the point. And I would not have accepted any assertion that in context, and in its highly charged emotional background, there was no swearing in this exchange between the accused and SB.
In closing its case, the prosecution also tendered Exhibits P16 and P17. Exhibit P16 is an Information for arraignment 8 August 2017 charging the accused with serious offences of a sexual nature. It is a fresh Information combining the allegations on previous files DCCRM-17-1076, 17-1077, 17-1078 and 17-1079. The accused, in this matter, has entered guilty pleas to some of the charges on this Information. He has pleaded guilty to the sixth count of Persistent Sexual Exploitation of a Child, DK, a person under the age of 17 years. He has pleaded guilty to masturbating in the presence of DK, to touching DK’s penis, to performing an act of fellatio upon DK, attempting to cause DK to perform an act of fellatio upon him and filming his sexual activity with DK. The evidence in relation to that matter is shown on disk FR-5 line 10 at item F and so evidence of that activity is now before the Court.
The accused has entered a plea of guilty to the seventh count of indecently assaulting PW by touching his penis. That conduct is recorded in the video P13 and is to be found at audio reference no 29 in New Exhibit Label 24.
The accused has pleaded guilty to Persistent Sexual Exploitation of ScB by touching ScB’s penis, masturbating in ScB’s presence and performing an act of fellatio upon ScB. That conduct, in part is recorded in the video P13 and is to be found at audio reference no Fr-11 and at videos numbered 24 and 26.
The accused has pleaded guilty to the ninth count of the Information, a charge of Gross Indecency performed with or in the presence of PW by filming PW naked and whilst PW was engaged in private acts. The material relative to this charge is recorded in Exhibit P13 and is to be found at video no 28 with the new exhibit label FR-13.
The accused has also pleaded guilty to a charge of Indecent Assault of PW by touching his penis. This activity is disclosed in Exhibit P13 at video no 31 under the new exhibit label FR-13.
The accused has pleaded guilty to indecently assaulting PW by touching his penis. The activity is recorded in Exhibit P13 and is to be found at video no 9 under the new exhibit label FR-4.
The accused has also pleaded guilty to Gross Indecency by pleading guilty to committing an act of gross indecency with or in the presence of PW. This conduct is disclosed on Exhibit P13 and is to be found at video no 20 under the new exhibit label FR-8.
There was no contest between the parties that the guilty pleas of the accused to these counts is to be treated as an acceptance by him of the proof beyond reasonable doubt of the elements of these offences sufficient for the court to be satisfied of the guilt of the accused on them. Separately the court would then be in a position to commit the accused on these counts based upon those pleas. I will proceed accordingly.
Exhibit P12 is a certificate of record of the court which records the pleas entered by the accused.
Exhibit P14 contains the birth certificates of the various males to whose age reference has been made earlier in this judgment. These ages are not in contest in this case. I have earlier made reference to Information for arraignment dated 8 August 2017 which has been tendered as Exhibit P17. That document has not been challenged and some evidence was given by the accused about its content. On the accused’s evidence, these pleas are connected to the content of Exhibit P13. On the evidence before the court the accused has said that he may reappraise his position in the light of the further material that he saw when that exhibit was played. That is a matter for him. Finally, Exhibit P18 is the photo of the monkey mask formerly kept by the accused in his bedroom and to which CB made reference in his evidence.
Evidence of the defendant
The accused gave evidence. He is 49 years of age and was born on 4 April 1969 in Port Pirie.
He lived at his home address until he was 21 and he then obtained Housing Trust accommodation at a separate address. He lived there for about four years until about 1994 when he moved back to his parents’ home and stayed there for a short while.
On 24 April 1995 he moved to another separate address and lived there for 12 years. He now owns his own home in the town which he purchased in March 2007.
He said in his evidence he is a bit of a Keno junkie[8] and has played the game Keno for 24 years. He was aware of a rumour going around Port Pire a number of years ago that he won a lot of money on Keno; that is untrue. However, there is no evidence to suggest that any of the other witnesses in this trial were ever aware of this rumour. The accused’s suggestion that this rumour was rife is wrong. None of the witnesses had ever heard anything of this.
[8] Keno is an electronic game of chance based on the principles of the well-known game of Bingo.
When living at his first home address, he lived with his mother, his father and his brother who passed away two years ago. His Nana V lived there throughout the 1970’s. She owned a home across the road and she would spend some time there during the day and sleep at this house. Her house across the road was often occupied by various members of the extended family.
He said that he had a number of siblings. Their names were EC, VC, WC, whom they called by a nickname, RC and MB whom they called Rd. His mother had a previous relationship in which she had a number of children. Some of those children took the surname of the accused’s father and not their father who was his mother’s first husband. This explains the surname of at least one of the complainants but neither of whom knew of these facts. For reasons that I am unable to comprehend, the accused chose to reveal these matters to the complainant SB during his cross-examination. This required SB to confront and then comprehend whilst in the witness box, the fact that the person whom he had always known to be his grandfather as a blood relative was not so related to him. This would be no easy task in ordinary daily life; it is difficult to comprehend the effect of the shock of this revelation to a person in the witness box in a criminal trial as a complainant. In the end, none of this assisted the accused or in my deliberations.
The accused left school in Year 9 but was unable to obtain employment and generally obtained some gardening work. He had his first child when he was 15, a second child when he was 16 and a third child when he was 17 ½ years of age. These were all male children and he has had no relationship with the mother over time nor any relationship with the children. The impression I obtained from his evidence is that he has never had any form of paternal relationship with these children and has never supported them. These children now live interstate and he has no contact with them. The only evidence of the children of the accused comes from his viva voce evidence and neither of the complainants were aware of or had ever heard of or seen these children. In his later evidence, the accused said that in the years from when he was 13 to 15 or older he was in a same-sex relationship with a boy named M who was a year or so older than him. This relationship lasted for a number of years.
The accused said that the home was a busy home and agreed with the content of Exhibit P1 and P1A, the plans of that home drawn by the complainants.
He then said that his brother WB is married to CoB and that CoB attended at their home quite a bit. It was not clear to me how this was relevant apart from the fact that WB and CoB are the parents of the complainants.
The accused then said he stayed with WB and CoB at their home a number of times. He alleged that CoB would come into his room and touch him sometimes. Eventually she was caught trying to touch him and there was a significant altercation between WB and CoB as a result of it.
On the third occasion, CoB was caught in the act and WB and CoB had a large fight. WB left the home until 8.00 the next morning. He dropped the accused back to his home and told him it was better if he did not say anything about it because it would cause all sorts of trouble. He told a couple of girls at his school. He said he also told one of his teacher’s assistants about it but this must have been many years later. He said he had a house fire. He told a teacher’s assistant when he was living at his unit just before the unit burnt down. This fire was in 2014.

Ms Burgess then made submissions about what SB allegedly said to the accused in Court. There is no evidence of that and there is no transcript of it.[61] As I made clear to Ms Burgess during submissions,[62] I can place no weight upon the evidence of the reaction of SB to the information he received in cross-examination about the paternity of his own father and the true identity of his own grandfather. I am not satisfied that this information had any relevance or that the questioning had any basis that could make the information relevant.
[61] See T95.28 - 96.2.
[62] T550 - 552.
In relation to the incident at the service station, Ms Burgess again sought to criticise the credibility of the version given by DB and suggested that her version was affected by her relationship with SB. However, as the evidence developed, it became clear that the accused did not seriously challenge the version of events given by SB and DB about that day. It is not clear to me why there would then be any suggestion of a criticism of DB arising from that. It is inutile to the task before me. There were differences between the versions of DB and SB but no more than I would expect from two people trying to remember the same event. Ms Burgess suggested that that difference would cast further doubt upon the evidence of CB and for example the effect of the conversation between CB and PW. I am unable to accept that submission. As I have said, the differences between DB and CB in relation to those events are no more than I would expect. I also find that the accused did not seriously challenge the version of events put forward by DB and SB and any differences between them are minor. It follows that there can be no extrapolation from those difference to any doubt about the credibility of CB arising from anything said between CB and PW 10 years before these events.
Ms Burgess also made further criticisms of the alleged inconsistencies between CB’s evidence and some statements that he gave to police, none of which were put before me. She criticised the statements of CB about the ages that he might have been when he was interfered with by the accused. She emphasised the evidence of the accused that there was a big difference in CB between the ages of 9 and 11 whereas, that two year period did not seem to be of any consequence to CB. She submitted:
He does not really seem to acknowledge the inconsistency and we know he does eventually but he says he cannot really explain the difference in his statement which of course is 11 and his evidence in Court. He acknowledges that his memory is obviously affected by the passage of time. That is important, that is page 194.[63]
[63] T554.17.
I consider it is of no consequence that CB could not remember whether the offending was as consistent between the ages of 9 and 11. His evidence was that it persisted until he no longer stayed with his grandparents, which was about the age at which he became more heavily involved in sport. I do not accept that he has a state of altered thinking in any way as suggested by Ms Burgess nor do I think that these matters are of any significance. I have weighed them in the balance in the assessment of the evidence and in my opinion they are of minor significance and they carry no weight. The significance of the age difference in terms of CB is that the offence alleged against the accused may only be proven beyond reasonable doubt if the accused is 18 years of age or more. On my assessment of the evidence, and having regard to the content of Exhibit P14, the birth and death certificates, the accused was 9 years and 5 months older than CB. Therefore, the significance that CB has a memory of events occurring when he was 9 years of age is that by that time, the accused was 18 years and 5 months old.
Ms Burgess emphasised what she described as ‘these inconsistencies’ which she suggested need explanation. However, she was only able to point to different dates in relation to when a particular conversation may have occurred as being the basis of the allegation of inconsistency. She suggested that I was in an invidious position as to what to make of these differences. I am unable to accept that submission. I am in a position where I am able to make a decision in relation to these matters based upon the evidence before me. That includes the relevant inconsistencies that have been pointed out to me by Ms Burgess and which I have taken fully into account.
Forensic disadvantage
Ms Burgess then submitted that her client had suffered a forensic disadvantage but she did not go into detail except to say that if the allegations had been made at an earlier time it would have been much easier for the accused to have either approached witnesses as to what they were doing on a particular day and to also have a clearer account from the complainants and to have a clearer position himself. Another forensic disadvantage was that the complainants were testing very old memories and witnesses were unclear about some of those memories. This has made it very difficult to defend the allegations because there is no allegation of a specific day, date or time. It was impossible to test for example whether the accused might have had an alibi. None of that can occur now because the allegations have come so late in the day. If there had been a more specific allegation, then it would have been possible potentially to produce evidence that rendered it far less likely or indeed impossible for the offending behaviour to have occurred. An example is that the allegations in relation to CG and BO who the accused said lived across the road could be tested if the allegation came forward earlier because, as the accused submitted, they lived across the road and were at the home regularly whereas both SB and CB said that they were at the home rarely in their memories. However, this submission overlooks the fact that both CG and BO may have been at the home infrequently whilst SB and CB were there. They were there on a number of occasions and they said that they played cricket in the street and across the road. This is not inconsistent with there being a lot of other opportunities for SB and CB to stay at their grandparents’ premises in the absence of CG and BO. Therefore, I find that there is not a direct inconsistency between the two versions notwithstanding the submissions of Ms Burgess to the contrary.
Ms Burgess summarised her submissions in relation to forensic disadvantage[64] by saying that there are obvious difficulties for an accused in challenging and responding to allegations made so long in the past. She alleged the delay would have led or is likely to have led to the complainants being unable to remember some matters of detail which make it harder for the accused to test the complainants’ account in much detail. Also, the same delay would mean that the accused can less readily recall exculpatory circumstances such as the presence of other witnesses or circumstances or items of evidence which may have rendered the alleged offence more difficult, more unlikely or impossible to have occurred and, in relation to this, to have better equipped his counsel to cross-examine prosecution witnesses or to have advanced his own case by way of giving defence evidence. She pointed to the fact that a number of witnesses have died, a number of witnesses have not been cooperative with the police and if asked earlier they may have been more cooperative.
[64] T558.14.
Ms Burgess correctly admitted that the accused had an excellent memory for dates, times and places going back some 30 years and that he could normally associate dates and events by reference to other matters. He also described himself as a hoarder which may have limited any forensic disadvantage. However, Ms Burgess submitted that this was a submission at a higher level and is a matter of common sense.
In reply, Mr Foundas addressed the forensic disadvantage direction and referred to the decision of the Court of Criminal Appeal in The Queen v W, PK (2016) SASCFC 5 and the requirement to explain the forensic disadvantage by reference to specific references to the circumstances of a particular case and to avoid generalities and including the phrases used in s 34CB EA. He emphasised the absence of any evidence about any attempt being made by anyone to obtain, for example, CCTV footage of the wedding reception, bank statements, police reports or anything else which the accused submitted was tantamount to a forensic disadvantage and which should be taken into account by me.
Section 34CB of the EA provides that if there is a delay between the alleged offending and the trial which results in a significant forensic disadvantage to a defendant, I must identify that disadvantage and direct myself to take that disadvantage into account. The disadvantage must be specific to the circumstances in the case and not be in the form of a warning that is so general as to be meaningless. In other words, I must forge a warning tailored to the circumstances of this case where the delay gives rise to some real disadvantage to the accused. In addressing these matters, I take guidance from the Court of Criminal Appeal decision in R v W, PK.[65] Kourakis CJ, who wrote the judgment of the Court, said at [35], [36], [39], [41] and [42]:
[65] [2016] SASCFC 5.
In R v Cassebohm,[66] Doyle CJ outlined the requirements of a warning pursuant to s 34CB:[67]
[66] (2011) 109 SASR 465.
[67] Ibid at 475 [32].
The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
In R v C, CA,[68] I observed:
The delay in this matter was substantial and I would accept that it resulted in a significant forensic disadvantage calling for a direction in accordance with s 34CB of the Evidence Act. The Judge did alert the jury to the appellant's forensic disadvantage in general terms. However, s 34CB of the Evidence Act requires a direction explaining the forensic disadvantage faced by the particular defendant on trial. The general direction given by the Judge did not draw the jury's attention to the contradictions, in matters of detail, of the complainants' testimony, which might have been more effectively pressed but for the lapse of time.
…
The Judge addressed the topic of forensic disadvantage in general terms but did not make a finding or give a ruling about whether the requirement of a ‘significant forensic disadvantage’ within the meaning of s 34CB(2) had been satisfied.
…
Section 34CB of the Evidence Act was clearly enlivened by the circumstances of this trial. The appellant's counsel sought a direction pursuant to that section. The passage of time was, in and of itself, a reason to give such a warning. Some 40 years, or close to it, had passed. S's evidence was that the offending occurred in the context of the day to day proximity of family life. Recollection of detail and of particular occasions will necessarily be difficult in those circumstances. The Judge explained the general difficulty occasioned by the lapse of time in defending accusations of this kind well when he told the jury that a complainant in a case like this is likely to be excused for deficiencies of recollection whereas the accused is in no position to dispute the recollection.
However, s 34CB(3) of the Evidence Act requires more than a general explanation of that kind. It requires the direction to be tailored to the facts and circumstances of the particular case.
[68] [2013] SASFC 137 at [117].
It is necessary that I tailor any forensic disadvantage direction to the facts and circumstances of this particular case. Before doing so, I reiterate that the accused claimed in his evidence a quite exceptional memory for dates, places and circumstances. On a number of occasions, he was able to recall events by reference to a neighbour’s birthday, another event happening in the house, documents that he possessed and other more general reminders. It was only when he was closely pressed about particular circumstances that he suggested that events had happened 30 years ago and he could not really remember. Although it is not necessary for me to make any findings of an inconsistency in the positions taken by the accused, at times I found it difficult to rationalise the accused’s evidence which, on the one hand was quite specific and detailed and yet, on the other hand when he was closely pressed in cross-examination, he suggested an absence of memory about matters.
I turn to the specific criticisms. The first, that if the allegations had been made earlier, it would have been much easier for the accused to have approached witnesses as to what he was doing on a particular day or to have given a clearer account of circumstances. However, the accused was able to give very clear evidence as to when he was living in the house of his parents, when he moved out of that house into a unit, the bedroom in which he was living, the circumstances under which he was living there and the arrangements made for cousins to sleep in his room when they so regularly stayed over at their grandparents’ home. The events as related by SB occurred late at night, in the dark, in the outside toilet. The events as related by CB occurred in the bedroom, at night, and in particular circumstances where only CB was sleeping in the accused’s bedroom. The accused did not contradict the assertions in their evidence that they stayed over so regularly and in the specific circumstances where no one else was staying over at the time. It is difficult therefore to fashion any direction as to who may have been a witness of fact bearing in mind that no such persons were identified or could be identified.
As a second matter, the accused identified[69] that there is a possibility that the memories of the complainants might be deficient because of their inability to remember matters of detail and so making it harder for the accused to test the complainants’ account in as much detail.
[69] T558.
The events complained of occurred at night, and in narrowly confined factual circumstances which were not challenged by the accused in the sense that he agreed that both SB and CB slept in his bedroom at night regularly on weekends and during school holidays when they were at the age alleged or perhaps a little bit older than the ages alleged. No suggestion was made that other persons slept in the same bedroom at the same time or, at that time at night, would have been aware of what was happening in the bedroom of the accused or in the toilet on the outside of the grandparents’ house. There is no suggestion of what may be exculpatory circumstances such as the presence of other witnesses or circumstances or items of evidence which may have rendered the alleged offence more difficult, more unlikely or impossible to occur. This is because the alleged offences occurred in such a narrow scope of factual circumstances that unless there could be some identification of some person who may have been aware of the facts, then it is difficult to identify the disadvantage. This is not to suggest that any burden falls upon the accused. However, in addressing these matters, and in light of the factual circumstances as they have been alleged against the accused and which the accused has addressed in his own evidence, I am unable to identify any basis upon which there may have been exculpatory evidence that might have been called, that some further cross-examination might have been made or that the accused could have put some other matters by way of further evidence.
In general, the accused asked me to give a general direction in terms of delay and the effects of delay upon memory. It is not a revelation in any sense to accept, as I do, that all memories are affected by delay. The accused pointed to a number of matters. He alleged that there was nothing such as CCTV footage or other memorabilia from the wedding reception in 2004, bank statements in relation to various transactions, police reports or the like. The accused submitted that there was no evidence about any attempts to obtain those matters and, absent those matters, it becomes impossible to identify a proper chronology of events and therefore, the capacity of the accused to fairly be in a position to give evidence about those matters.
In relation to the wedding, it took place in 2004. There was no evidence that there would be CCTV footage available. There was no evidence that someone privately filmed the altercation and that is no surprise. Such events usually happen at lightning speed and before others can react.
Then, there was no challenge that the wedding was held, that the reception was held at the football club, that an altercation occurred between the accused and PW adjacent to the table of the family of SB and CB. It is not in contest that at the time of the altercation PW was holding a jug of beer and that the accused struck PW with a fist to his face causing PW to fall and drop the jug of beer. It is not in contest that CB became incensed at the conduct of the accused, a strong physical altercation occurred between CB and the accused which ended up in the kitchen of the football club, that SB broke up that affray and escorted the accused out of the premises. It is also not in contest that the accused was not an invitee to the reception and that, on the accused’s own evidence, he struck PW because he thought he was being disrespectful to a cousin and an uncle (because of the accused). I have earlier addressed this evidence. These are all matters that are either consistent on the evidence of the complainants and the accused or were matters that were ventured by the accused in his evidence.
So also was the evidence of the accused about what happened immediately afterwards and the other threats that were allegedly made to the accused by CB.
That leaves a number of other matters. It is known that the accused’s father passed away on 9 May 1999. However, the only evidence that might have been given by the accused’s father in relation to these matters would have been the time upon which he went to bed. There was no significant difference between the evidence of the complainant and the accused about this fact. There is no doubt that the accused’s father stayed up later on the weekends than he did on working days. The evidence otherwise was not consistent as to the time that he went to bed and the accused did not give evidence that he was up to all hours of the morning consistently. The accused did say that on occasions his father was up until very late, sometimes 3 or 4 in the morning. However, the evidence of the relevant complainant SB is that when the accused took him to the toilet on the outside of the house, the accused’s father was not up sitting in the kitchen drinking his beer or watching television. I am unable to identify any forensic disadvantage arising out of the passing of the accused’s father.
It is also know that the accused’s brother, WRB, passed away on 15 August 2000. WRB was the father of SB and CB as well as ScB. The relevance of this is that the accused alleged that as a matter informing the allegation of concoction, that the accused had openly discussed the conduct of SB and CB concerning their father and the alleged contribution of this conduct to the death of WRB. The only evidence on this topic was given in the most general sense by the accused and any suggestion of such conduct was strenuously denied by the complainants. The accused assumed that SB and CB had heard what he was saying openly about them and a connection to their father’s death. The complainants had heard nothing of this and angrily rejected the suggestion.

It is also difficult to give any significance to these matters because the accused said that he was in grave fear of WRB and knew that if, as alleged, he sexually interfered with SB and CB, then he knew that he would suffer retribution from WRB. The difficulty with that suggestion is that even accepting that fear (which I do not), the accused said that he was sexually attracted to CB and committed sexual offences against the younger brother ScB while WRB was still alive.
In the result, I accept that the accused has suffered a forensic disadvantage as a result of the delay but only in the specific case that the accused, on his own evidence, may have been able to point to him being in a relationship with another person who may have been staying at his home at the particular stage at which the complainants said the events occurred. However, I am not satisfied that, for s34CB(2) EA, this constitutes a significant forensic disadvantage. The reason is that the evidence satisfies me that at the relevant time, the accused seemed to be involving himself in a broad range of sexual experiences, heterosexual and homosexual. Based upon the accused’s own evidence, it is clear that the accused was involving himself in homosexual relationships with M and also with other people. At the same time, the accused is alleged to have fathered three male children. He had very clear memories of these matters and also very readily agreed that the complainants stayed over at his parents’ home and slept in his room as they alleged. There is no evidence that the accused suffers any deficiency of recollection such that he is not in a position to dispute the recollections of the complainants. I do not accept that the passing of the accused’s father or his brother has forensically disadvantaged him to a sufficient degree. I am unable to identify any other witness who may have been able to give material evidence in respect to any particular incident because of the private nature of those incidents, the place in which they occurred and the time in which they occurred.
I am not satisfied that that passage of time and the death of these individuals means that, for example, the accused was not in a position to challenge the evidence given by the complainants. I am not able to identify from the evidence any particular independent witness who may have been able to give evidence to assist the accused because, largely, the evidence of the complainants apart from the particular events, was not contested. In those circumstances, I am not satisfied that, apart from the effluxion of time, that the accused has suffered any forensic disadvantage. The disadvantage allegedly suffered by the accused is minimised by the accused’s own claim to have an excellent memory which he attempted to portray on a number of occasions. In those circumstances, and notwithstanding that in ordinary circumstances, the effluxion of time would be a disadvantage, I do not accept that there was a significant forensic disadvantage. If I am wrong about that, and there has been a significant forensic disadvantage suffered by the accused, I would not come to any different conclusion. This is because the only significant forensic disadvantage suffered by the accused is the effluxion of time and the accused was able to give an excellent account of dates, times and circumstances such that the effect of such a significant forensic disadvantage would lead to any different view on my part.
Reliability of complainants’ evidence
The accused submitted that I should approach the task of assessing the complainants’ evidence with caution having regard to their age at the time of the alleged events and that, this alone, should be a reason not to be satisfied of the allegations as proved beyond reasonable doubt. As I have earlier indicated, I have assessed the evidence as a whole as I am required to do according to the decisions of the Court of Criminal Appeal in Schultz and the other authorities to which I have referred. I am unable to accept this submission. The evidence of the complainants given before me satisfied me that both of the complaints were reliable, credible, compelling and truthful witnesses. Both of them are the product of their own environments and I have made due allowance for that situation. I have done the same for the accused.
Neither of the complainants were particularly troubled in cross-examination; they gave their evidence in an open and honest manner. In particular, SB was forced to deal in the witness box with a most extraordinary allegation about the paternity of his own father and the true identity of his grandfather. I am yet to understand how this topic put in cross-examination was of any relevance or assistance to the accused. I consider that SB handled those matters admirably in the witness box. He largely, but not completely, maintained his composure despite, contemporaneously, being shocked, confused and outraged at this cross-examination.
I have made the same allowances for the usual exigencies of life and background for SB and CB as I have for the accused. I have taken the same approach to the whole of each of their evidence in light of my own knowledge and experiences of life, based upon the evidence, of their similar backgrounds.
Earlier in these reasons I have assessed the evidence of the accused, not in the context of any burden of proof to be shouldered by him, but in the context of the decisions in Schultz and Ahmadi. I have therefore assessed the whole of the evidence before me in reaching my conclusion about the reliability, credibility and truthfulness of the evidence of the complainants, which I have accepted.
Witnesses who did not cooperate with police
The accused also submitted that I should feel some unease about PW and DK not being cooperative with the police. It was pointed out that no reason was postulated for that failure to cooperate with police. I am unable to give this consideration any weight at all. In light of the content of Exhibits P2 and P13 as well as P16, it is a factor which is largely irrelevant. The accused has pleaded guilty to committing offences against these and other boys. Those other boys included ScB, the brother of SB and CB. ScB made a complaint to the police about the conduct of the accused and which forms the charges against the accused to which he has entered guilty pleas. I feel no unease as suggested because the material available to the police recorded and kept by the accused appears to be the evidential basis on which the accused made his decision to enter his pleas of guilty. For my part, that is the end of the enquiry here.
The accused complains that one of the complaints of CB involves an event inside the accused’s bedroom following his allegedly sexually abusing CG and BO. This involved his own mother calling him to lunch and the accused delaying her. I am unable to accept this submission on a number of bases. This was discreditable conduct evidence and there was no objection to it being led. There was no cross-examination about the availability of CG and BO in evidence and finally, the evidence about CG and BO was a forerunner to the events in the bedroom which followed. None of those matters separately or together raises any doubt in my mind about the accuracy, truthfulness and reliability of the version of evidence given by CB.
Lack of independent evidence
I am also untroubled by the submissions of the accused about the absence of any independent support and that these are oath-on-oath matters. The accused contended that a matter that may concern me is the apparent brazenness of the accused’s conduct and then it ceased. As I understand this submission, the accused submits that if it is to be accepted that the accused was offending against SB and CB, it is unexplained why that offending would cease at the time as suggested by SB and CB when they both reached high school and became more interested in sport and other things and did not stay at their grandmother’s home. However, it must be recalled that the evidence of SB was that the abuse was ongoing but it did cease when he made changes in his own life and did not stay at his grandmother’s home. Generally, the same can be said of CB. However, it is also known that a number of other things happened contemporaneously. As he got older, the accused entered other and different relationships and he became sexually attracted to other people. I have earlier set out the evidence he gave about the sexual relationships that he had with a number of males from the time that he was about 13. I consider that there is no significance in the accused shifting his attentions to other people whilst, at the same time, continuing his conduct against the complainants. Exhibit P14 discloses that the accused was eight years older than SB and nine years older than CB. He was 18 years older than ScB. At the time that SB alleges the offending against him commenced, the accused would have been 13 to 14 years of age. He was just starting to explore his own sexuality. The same form of reasoning applies to the differences in the complained conduct alleged by SB and CB. As the accused became older and more emboldened, the modus of his behaviour changed. None of this casts any doubt upon the credibility of either of the complainants and reflects more accurately how the accused became more emboldened over time. This is reflective of a number of considerations. The first, as I have said, the accused’s realisation of his own sexuality and sexual preferences and second the opportunities that were available to him.
Conclusion
In the circumstances, I am satisfied beyond reasonable doubt of the following matters:
1.That in the period between 25 February 1983 and 27 February 1985 at Port Pirie the accused had sexual intercourse with the complainant SB a person under the age of 12 years by performing an act of fellatio upon him;
2.That in the period between 25 February 1983 and 27 February 1985 at Port Pirie the accused had sexual intercourse with SB a person under the age of 12 years by causing SB to perform an act of fellatio upon him;
3.That in the period between 25 February 1987 and 27 February 1988 at Port Pirie the accused had sexual intercourse with SB a person under the age of 12 years by performing an act of fellatio upon him;
4.That in the period between 25 February 1987 and 27 February 1988 at Port Pirie the accused had sexual intercourse with SB a person under the age of 12 years by causing SB to perform an act of fellatio upon him.
I am able to make all of these findings because I am satisfied beyond reasonable doubt that on the four occasions that I have set out above, sexual intercourse, namely fellatio, occurred as described in paragraphs 1, 2, 3 and 4 above. I am also satisfied that at the time of this sexual intercourse, the complainant SB was under the age of 14 years. I am therefore satisfied that each of the counts of unlawful sexual intercourse as charged against the accused in respect of SB have been proved beyond reasonable doubt. I find the accused guilty in respect of those four Counts.
I am further satisfied beyond reasonable doubt that at Port Pirie, between 4 April 1987 and 24 October 1991 the accused engaged in two or more unlawful sexual acts towards the complainant CB by doing the following:
(a)Touching the penis of CB whilst CB was sleeping in a bed immediately adjacent to bed of the accused, both of which were situate in the bedroom of the accused;
(b)Masturbating in the presence of CB in the bedroom of the accused; and
(c)Causing CB to touch his penis whilst they were both in the bedroom of the accused.
I am in a position to make those findings beyond reasonable doubt because I am also satisfied beyond reasonable doubt that at the time of this offending the accused was an adult person of 18 years or older; that the complainant CB was a child during that period because he was under the age of 17 years; that the accused was in an unlawful sexual relationship with the complainant CB; and that the accused maintained that unlawful sexual relationship with CB. I make those findings in the knowledge that in order to have an unlawful sexual relationship, an adult person must engage in two or more unlawful sexual acts with or towards a child over the charged period. I am cognisant that an unlawful sexual act means any act that constitutes or would constitute a sexual offence including unlawful sexual intercourse, indecent assault and gross indecency. I am also cognisant that an indecent assault is an assault accompanied by or committed in circumstances of indecency, the two essential ingredients of which are required to be proved to my satisfaction beyond reasonable doubt. I am also satisfied that such assault has a sexual connotation. I am also cognisant of the fact that in order for the two or more acts to constitute an unlawful sexual relationship, it is not necessary that I be satisfied of the particulars of any unlawful sexual act but would have to be satisfied that if the act were charged as a separate offence, that I must be satisfied as to the general nature or character of those acts. I am satisfied that each of the acts described in sub-paragraphs (a), (b) and (c) above relevantly constitute an indecent assault, an act of gross indecency and both an indecent assault and an act of gross indecency. I find the accused guilty on this Count.
In those circumstances, I find the accused guilty on all of the Counts charged on the Information.