R v BCW
[2022] SADC 68
•31 May 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BCW
Criminal Trial by Judge Alone
[2022] SADC 68
Reasons for the Verdict of her Honour Judge Schammer
31 May 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with one count of Maintaining an Unlawful Sexual Relationship with a child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935.
The complainant, RSL, met the accused, BCW, in 1994, when RSL was in Year 8 at school. The accused was a teacher at RSL’s school, but never taught RSL, nor was RSL in his care group. RSL’s parents had separated when he was young, and he was living with his mother and two of his brothers in impoverished circumstances. RSL’s mother struggled with a gambling addiction and alcoholism.
RSL first met BCW outside of the school grounds, but during school hours. The precise circumstances in which RSL met the accused were in dispute.
However, after their first meeting, the accused attended at RSL’s family home, out of school hours, including on Saturday mornings, at which time he paid RSL to wash his car, while he talked to RSL’s mother. The accused allowed RSL to use his school canteen account in exchange for doing odd jobs for him at the school. The period during which the accused visited RSL’s home and allowed him to use his school canteen account, was disputed.
RSL claims that the accused abused him on two occasions at school, when he was in Year 8, in a storeroom attached to the art room. RSL claims that thereafter, over a period of approximately 12 months commencing in either late 1994 or early 1995, the accused abused him at various houses, all of which had an association with the accused’s family and on one occasion in a car near Flinders University. The abuse is said to have occurred in the context of the accused having earned RSL’s mother’s trust, during his visits to the family home, such that she would allow RSL to accompany the accused on outings on Saturday afternoons and occasionally to stay away overnight with the accused, at which times the abuse occurred.
RSL’s evidence demonstrated he had esoteric knowledge about matters personal to the accused, said to have been gleaned as a result of his relationship with the accused between 1994 and 1996 and the abuse occasioned on him by the accused.
During cross-examination of RSL, counsel for the accused questioned RSL about the circumstances of an incident which occurred in February 2009, when RSL attended the accused’s home and assaulted the accused (the 2009 assault). This evidence was introduced to challenge RSL’s credit.
During the 2009 assault, RSL rang his father and demanded the accused tell his father what he had done to him. The accused told RSL’s father that he had abused RSL when RSL was a child. There is no dispute that the accused did so under duress, such that this was not an admission.
RSL was arrested and charged with the offence of aggravated harm with intent to cause harm. He pleaded guilty to that charge and gave evidence at a Disputed Facts Hearing in 2010. During the investigation relating to the 2009 assault, RSL told the police that BCW had abused him when he was a child.
RSL was cross-examined at length about inconsistencies in the evidence he gave at trial, the evidence he gave at the Disputed Facts Hearing and what he told police immediately after the 2009 assault.
Complaint evidence was led at trial from CJL, RSL’s younger brother, who claimed RSL told him about the abuse several years prior to the 2009 assault. RSL could not recall making the complaint to CJL.
The accused gave evidence denying the offending. He denied having any contact with RSL from the end of 1994, when the accused stopped teaching at the school, until approximately ten years later, when he bumped into RSL and his girlfriend at a shopping centre and they renewed a friendship of sorts. The accused claimed that RSL had concocted the allegations as part of a longstanding endeavour to obtain money from him, either by way of blackmail or compensation.
The accused’s evidence contained many internal inconsistencies and was markedly different, in many important aspects, from the contents of four earlier statements he had provided to police.
After the accused had given evidence, counsel for the accused requested and was granted, a lengthy adjournment of the trial in order to obtain evidence pertaining to the accused’s Parkinson’s Disease, and the impact that may have on the accused’s long term memory.
The accused called evidence from his treating neurologist, Dr Thyagarajan. Dr Thyagarajan gave evidence that the accused is suffering significant cognitive impairment, as a result of the progression of his Parkinson’s Disease. He confirmed this impacted on the accused’s short term memory, but was unable to express an opinion as to whether the accused was suffering dementia, or what, if any, impact there was on the accused’s long term memory, in the absence of further expert assessment.
Consideration of forensic disadvantage to the accused arising from this and other matters.
Verdict: The accused is guilty of the charged offence.
Criminal Law Consolidation Act 1935 (SA) ss 5, 49, 50, 56; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 34, 53, 67, referred to.
R v Mann [2020] SASCFC 69; JJP v R [2021] SASCA 53; R v Corrigan (1998) 74 SASR 545, considered.
R v BCW
[2022] SADC 68R v BCW
[Criminal]
Introduction
The accused, BCW, is charged on Information dated 24 April 2020 with one count of maintaining an unlawful sexual relationship with a child, RSL, pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (the Act).
The alleged offending is said to have occurred between 1 January 1994 and 31 December 1996, when RSL was aged between 12 and 15 and the accused was aged between 42 and 45.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. He gave evidence denying the offending.
The Charge
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
BCW between the 1st day of January 1994 and the 31st day of December 1996, at Henley Beach, Old Reynella, Noarlunga, Flinders Park, Pelican Point and other places, maintained an unlawful sexual relationship with RSL, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards RSL, namely:
(a)kissing him on the mouth on more than one occasion;
(b)biting his nipples;
(c)touching his buttocks on more than one occasion;
(d)touching his genitals on more than one occasion;
(e)thrusting BCW’s penis between his buttocks on more than one occasion, usually to the point of ejaculation;
(f)inserting BCW’s penis into his anus on more than one occasion, usually to the point of ejaculation; and
(g)inciting or causing or procuring him to touch BCW’s genitals on more than one occasion.
This is a ‘prescribed offence’ within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Elements of the Charged Offence
The prosecution must prove the following elements beyond reasonable doubt:
1.That the accused knowingly maintained a relationship with RSL.
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with RSL.
3.That at the time the accused engaged in two or more unlawful sexual acts with RSL, RSL was a child.
4.That at the time the accused engaged in two or more unlawful sexual acts with RSL, the accused was an adult.
RSL was born on 13 May 1981.[1] The accused’s date of birth is 12 March 1951.[2] Insofar as the alleged offending is said to have occurred between 1 January 1994 and 31 December 1996, I am satisfied that RSL was a child and the accused was an adult, during the relevant period.
[1] T 18.23; Exhibit P13.
[2] T 407.29-35.
There was no dispute that between January 1989 and December 1994, the accused was a teacher at a western suburbs high school (the school).[3] RSL met the accused in 1994 when he was a Year 8 student at the school. The accused was never RSL’s teacher, but he came to know RSL after an incident in 1994 (the circumstances of which were in dispute), when RSL was off the school grounds during school hours, and the accused found him and drove him back to school.
[3] Exhibit P9.
The accused acknowledged that thereafter, he allowed RSL to use his account to purchase lunch from the canteen at times,[4] and asked him to do odd jobs for him in the art room storeroom at lunch time.[5] In addition, the accused visited RSL’s home on numerous occasions,[6] at which time RSL would wash the accused’s car, for payment, while the accused chatted inside with RSL’s mother.[7]
[4] T 425.22-426.5.
[5] T 424.2-11.
[6] There was a significant dispute as to the number of times the accused visited RSL’s home and the period of time over which those visits occurred.
[7] T 422.24-30; T 426.27-427.4.
The accused also gave evidence of an occasion towards the end of 1994 when RSL’s mother told him she had gambled away all of her money. He said he then took her, RSL and his younger brother, CJL, to Port Sports at West Lakes, where he bought them each ‘a decent pair of shoes.[8]
[8] T 427.9-25.
The accused claimed that he did not then see RSL from when he ceased teaching at the school in December 1994, until some 10 to 13 years later, when he saw RSL and his then girlfriend at West Lakes Shopping Centre, and they renewed their acquaintance.[9]
[9] T 428.19-26.
RSL gave evidence that he was sexually abused by the accused twice in the art room storeroom at the school and on numerous occasions at various locations where he was taken by the accused, generally on Saturday afternoons, after he had washed the accused’s car. He said that from 1994 to around late 1995 or early 1996, he spent most Saturdays with the accused, who he considered a ‘father figure’ to him. He described attending football games with the accused, shopping with him at Port Sports and, in addition to regular Saturday afternoon outings, sometimes staying overnight with the accused, at different locations.
The accused denied both the offending and the extent of any alleged relationship with RSL. The accused claimed that RSL had concocted the allegations as part of a longstanding endeavour by him to obtain money from him, either by way of blackmail or compensation.
Whether there is a ‘relationship’ for the purposes of s 50(1) of the Act is a question of fact, to be decided having regard to the duration, frequency, nature and continuity of the interactions between the alleged victim and the accused.[10] Although the existence of a ‘relationship’ for the purposes of s 50(1) of the Act was not conceded, I am satisfied that the interactions the accused described with RSL were, in any event, sufficient to constitute such a ‘relationship’. I will elaborate on my factual findings as to the nature and extent of that relationship, later in these reasons.
[10] R v Mann [2020] SASCFC 69 [27]-[29].
The real issue in dispute was whether, during that relationship, any of the alleged unlawful sexual acts occurred.
An ‘unlawful sexual act’ is an act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence.[11]
[11] Section 50(12) Criminal Law Consolidation Act 1935 (CLCA).
A ‘sexual offence’ is defined to mean:[12]
[12] Ibid.
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences, or
(c)a substantially similar offence against a previous enactment.
Pursuant to s 50(4)(b) of the Act, it is not necessary for me to be satisfied of the particulars of any unlawful sexual act as if that act had been charged as a separate offence. However, I must be satisfied as to the general nature or character of those acts.
The prosecution must prove beyond reasonable doubt the elements of the ‘sexual offences’ relied upon as rendering the alleged acts unlawful sexual acts.[13] Those offences are indecent assault and unlawful sexual intercourse.
[13] JJP v R [2021] SASCA 53 at [156]-[157] per Doyle J.
Indecent Assault
The prosecution allege that the accused engaged in several acts on RSL, each of which constitute the offence of indecent assault contrary to s 56 of the Act, namely:
·kissing him on the mouth on more than one occasion – particular (a).
·biting his nipples – particular (b).
·touching his buttocks on more than one occasion – particular (c).
·touching his genitals on more than one occasion – particular (d).
·thrusting his penis between RSL’s buttocks on more than one occasion, usually to the point of ejaculation – particular (e).
·inciting or causing or procuring RSL to touch his genitals on more than one occasion – particular (g).
The elements of the offence of indecent assault are:
1.That the accused applied force (directly or indirectly) to RSL.
2.The force was applied intentionally.
3.The force was accompanied by circumstances of indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation.
4.RSL was under the age of 17 years at the time of the act, rendering consent irrelevant.
Unlawful Sexual Intercourse
The prosecution allege that the accused inserted his penis into RSL’s anus on more than one occasion, generally to the point of ejaculation – particular (f) - being conduct which constitutes the offence of unlawful sexual intercourse contrary to s 49(3) of the Act.
To establish that the accused committed an offence of unlawful sexual intercourse against RSL, the prosecution must prove the following elements beyond reasonable doubt:
1.That the accused had sexual intercourse with RSL. Sexual intercourse is defined in s 5 of the Act to include any activity consisting of or involving penetration of a person’s anus by any part of the body of another person.
2.That RSL was under the age of 17 years at the time, rendering the issue of consent irrelevant and the act of sexual intercourse unlawful.
Witnesses and Exhibits
The prosecution called evidence from the following witnesses:
1.The complainant, RSL.
2.The complainant’s younger brother, CJL.
3.The complainant’s father, TBL.
4.The accused’s sister’s former partner, Tom.
5.The accused’s sister, DAR.
6.Mr George Fiacchi, the former proprietor of ‘Port Sports’.
7.Mr Eugene Warrior, a friend of the accused.
8.The Investigating Officer, Detective Leanne Trimboli (Det Trimboli).
In addition, numerous exhibits were tendered, including various statements made by the accused to police,[14] a statement of the accused’s teaching service[15] and a three-page statement of agreed facts.[16]
[14] Exhibits P14, P15 and P16.
[15] Exhibit P9.
[16] Exhibit P12.
In 2009, RSL was arrested for the offence of aggravated harm with intent to cause harm to the accused arising from an incident which occurred at the accused’s home during the early hours of 7 February 2009. During the incident, RSL punched the accused to his face several times and used a knife to cut the accused on the leg (the 2009 assault).
RSL pleaded guilty to the offence, and then gave (and called) evidence on a Disputed Facts Hearing before Judge Nicholson (as he then was) over several days in 2010 (the Disputed Facts Hearing).
The prosecutor did not lead any evidence from RSL with respect to the 2009 assault. However, RSL was extensively cross-examined as to the 2009 assault, and specifically as to potential inconsistencies in the evidence he gave at the Disputed Facts Hearing and in his statement to police on 7 February 2009 (the 2009 statement), and the evidence he gave at trial.
Exhibit P2, being two pages of the transcript of the 2009 statement, was tendered by the prosecution after RSL’s cross-examination, by consent, in lieu of the prosecutor re-examining RSL on this topic.[17] In addition, the prosecutor tendered photographs taken by police at the accused’s home immediately after the 2009 assault[18] and a statement containing a description of those photographs.[19]
[17] T 334.16-31.
[18] Exhibit P6.
[19] Exhibit P7.
A disc containing a record of interview conducted with the accused on 19 December 2018 was played during the trial and tendered as Exhibit P3.[20] In addition, the prosecution tendered three signed statements given by the accused to police dated 12 April 2009, 2 February 2010 and 21 August 2010, obtained after the 2009 assault.[21]
[20] Where in these Reasons I have discussed the contents of this record of interview, I have provided the reference as per the transcript of that record of interview (MFI P4) for practical purposes only, noting the evidence is what can be seen and heard on the disc containing the audio-visual record of that interview.
[21] Exhibits P14, P15 and P16 - Exhibits P15 and P16 tendered without objection and Exhibit P14 tendered over objection on the basis that they contained certain admissions.
The accused elected to give evidence and called evidence from his treating neurologist, Dr Thyagarajan. He tendered exhibits including a report from Dr Thyagarajan dated 9 April 2021, various medical records and certificates of title relating to a property at Henley Beach.
Legal Directions
General
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit the offence as charged.
The accused is presumed by law to be innocent of the charge unless and until the evidence that I accept satisfies me that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice.
It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of the offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) proffered by him.
In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. If I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, then I must find the charge has not been proven beyond reasonable doubt.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
RSL’s evidence is critical to the prosecution case. I must carefully scrutinise his evidence before I can be satisfied beyond reasonable doubt of its truthfulness and accuracy.
When RSL gave evidence, the court was closed, he was accompanied by a court companion and there was a screen placed between him and the accused. TBL gave his evidence via audio visual link. I must not draw any inference adverse to the accused in light of these arrangements, nor must these arrangements influence the weight I give to the evidence of RSL or TBL.
The accused elected to give evidence. He was under no obligation to do so. I must assess his evidence in the same way as I assess any other witness. In presenting a case, the accused has not assumed any burden of proof, that burden always remains with the prosecution. I remind myself that if I was to reject the evidence presented by the defence in its entirety, that does not bolster, nor strengthen the prosecution case. It remains for the prosecution to prove each element of the offence charged beyond reasonable doubt.
There were several potential witnesses who were not called to give evidence, including RSL’s mother, RSL’s former partner, Susan, the former Deputy Principal of the school and RSL’s ‘grandfather’, AR.
Det Trimboli gave evidence as to the unsuccessful attempts she made to obtain statements from RSL’s mother and Susan. She gave brief evidence as to why some of her communications with the Deputy Principal had not been reproduced in a statement from that witness. I accept that evidence.
The prosecution bears the onus of proof in this case. I must decide the case only on the evidence before me. If that evidence is insufficient to support a finding of guilt beyond reasonable doubt, I must find the accused not guilty. I must not speculate about the nature of any evidence I have not heard. I simply do not know what evidence may have been given by any absent witness. I must decide the case only on the evidence before me.
Several of the exhibits tendered by the prosecution were tendered as business records pursuant to s 53 of the Evidence Act 1929. Such records are evidence of the facts stated therein, or any fact that may be inferred from what is stated therein, whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence.
As to the making of inferences, I must not guess or speculate. There must be a logical and rational connection between the facts I find and the inferences I draw.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter.
Expert Evidence
Dr Dominic Thyagarajan, Professor of Neuroscience and Consultant Neurologist, gave expert evidence and his report dated 21 June 2020 was tendered. The ordinary rule is that a witness may speak only to the facts and not express opinions. An exception to that rule is that persons who are qualified in a particular area may express an opinion. That opinion must be relevant to their particular areas of expertise and that opinion must be based wholly or substantially on their knowledge, training or experience.
There was no dispute as to the expertise of Dr Thyagarajan and his opinion was not challenged. I accept his evidence.
Complaint
Section 34M of the Evidence Act 1929 provides:
34M—Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•when the complaint was made and to whom;
•the content of the complaint;
•how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
Complaint evidence is an exception to the rule which prohibits proof of prior, out of court, consistent statements. Complaint evidence is admitted to inform the trier of fact how the allegation first came to light and as evidence of the degree of consistency of conduct of the complainant. It is relevant therefore to an assessment of the reliability and credibility of the complainant.
There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is for the trier of fact to determine the significance (if any) of the evidence in the circumstances of the particular case.
Importantly, complaint evidence is not admitted as evidence of the truth of what was alleged and cannot be used as some form of independent evidence to prove what happened, as only the complainant’s evidence is able to prove that.
Section 34M renders only the ‘initial’ complaint, and any information provided by way of elaboration thereof, admissible. Accordingly, to be admissible, any later complaint must be an elaboration of the initial complaint, namely the complaint made first in time.
In his opening address, the prosecutor informed the court that the prosecution did not propose to lead any initial complaint evidence. Consistent with that indication, no evidence was adduced from RSL during examination-in-chief as to the fact, or circumstances, of any initial complaint (or elaboration thereof). RSL gave evidence-in-chief that during the period of the alleged offending he did not tell anyone about the offending because: [22]
[22] T 80.32-81.1.
It was embarrassing, it was very degrading, embarrassing and on top of it [BCW] said ‘This is our little secret’ and on top it was, it was too embarrassing. Like I felt like I was a man, I was a football plyer. I was a great football player, I was a forward, a full forward, I played for Port Adelaide and I’m a guy who got raped, and I’m supposed to be this big strong bloke. Yeah, so that’s why I didn’t tell anyone.
During cross-examination of RSL, evidence was elicited from him of various complaints he had made to different people, at different points in time. The evidence was not elicited as complaint evidence for the purposes of s 34M, rather it was elicited in order to prove certain prior inconsistent statements and/or shed doubt on RSL’s claimed version of events.
RSL was asked in cross-examination if he had told his former girlfriend, Susan, about the offending. He said that he did so on the day he rang the accused from his ‘grandfather’s home’, told him he was ‘going to dob him in for being a paedophile’ and asked him for money. He described meeting the accused outside the Lucky Horseshoe at the old Cheltenham Racecourse site. He said this was in about 2004, 2003.[23] He said he told Susan about the offending at their home in Ethelton, and that he had had quite a bit to drink. No one else was present. This was some time after he and Susan saw the accused at a shopping mall, and after he had come to their home for a cup of coffee, in response to an invitation extended by them.
[23] T 153.31-35; T 187.30-38, noting that in later evidence when asked when these events occurred, RSL said ‘It would have been – it was the same day I told Susan, the first time, I’d say 2002, three’; T 224.37-38.
When RSL was asked if he had told Susan ‘about all of this’, he said:[24]
[24] T 188.16-19.
Not all of it. I just told her what [BCW] did. I didn’t go into details. Then the next day we talked about it a little bit more, when I was sober.
Later in cross-examination, RSL was asked if he had ever sat down with someone and told them that the accused was abusing him. He said that he had, and the person he told was Susan, on the occasion as described above. RSL said Susan was the first person he told about the abuse and his mother was the second person.[25] He told his mother on his 21st birthday. He gave the following evidence about that occasion:[26]
[25] T 243.27-36.
[26] T 244.23-245.5.
A.My 21st. I was supposed to - she was supposed to pay for it, shout me out, but she gambled all her money and we had a talk, we had a few beers. I felt sorry for her for gambling, still gambling after all these years, and we just sat down and we had a talk and she said 'I thought I knew it all along, I already made a police - a phone call to the police'. That's what she said to me.
Q.Did she ask you whether or not you were being abused when you were about 15.
A.Probably about 14, she did ask me once, yes.
Q.And you denied it.
A.Yes, I did.
Q.Why.
A.Because you're embarrassed and - you're embarrassed, you're humiliated, sure shamed, your soul is destroyed, you feel like you're - you feel like you're nothing, a piece of shit and you don't want anyone to know that, especially when you consider yourself a popular kid and you know - and you play football, you're a popular kid, everything, you don't want people knowing that about you.
RSL turned 21 on 13 May 2002. In re-examination, RSL said it was possible he told his mother about the abuse, before he told Susan. He said:[27]
[27] T 280.10-26.
A.I really did think I told my girlfriend first. I really thought I'd told my girlfriend first; but - can I add something to that?
Q.Yes.
A.When I made the phone call down to [BCW] and all that, that's the same night that I told my girlfriend and [AW] was there overhearing it all, so I told - so yeah.
Q.Thinking back to that night when you made the phone call, do you remember whether at that time you'd already told your mum about it.
A.I'm not too sure. We used to drink a lot back in the early days and all that, there could be a slight chance I did tell her earlier, I'm not too sure.
Q.So you're saying there, there could be a chance you told your mother before you made that phone call that night.
A.Yeah, yeah, it could be, yes.
After re-examining RSL, the prosecutor explained that as defence counsel had effectively ‘cross-examined in’ evidence of complaint, he intended to call RSL’s brother, CJL, to give evidence that RSL told him about the abuse when RSL was aged between 17 or 18 (and therefore at an earlier point in time to when RSL claimed to have told either Susan or his mother about the abuse). Further, the prosecutor explained that in light of the evidence given by RSL in cross-examination about the 2009 assault,[28] it had become necessary for the prosecution to call evidence from RSL’s father, TBL.
[28] Including evidence that during the 2009 assault, he rang his father and told him that BCW had raped him when he was at school, and that BCW had subsequently spoken to his father, over the phone, and told him that he had raped RSL; T 214.28-215.15.
As such, defence counsel was given leave to further cross-examine RSL on the topic of complaint. RSL gave the following evidence:[29]
[29] T 291.2-292.33.
Q.You were asked by me yesterday questions about whether or not you complained to your mother when you were 14 or 15. Do you remember me asking you those questions.
A.Yeah, roughly. Yes, I do.
Q.And I asked you whether she asked you whether or not you were being abused.
A.Yes.
Q.And you said yes, she did ask that question.
A.Yes, she did. Yes.
Q.And you said that you denied being abused and then I asked you why.
A.Yes.
Q.And then you answered, and I'll just read your answer out, you said 'Because you're embarrassed and - your embarrassed, you're humiliated, you're ashamed, your soul is destroyed, you feel like you're nothing, a piece of shit and you don't want anyone to know that, especially when you consider yourself a popular kid and you know - and you play football, you're a popular kid, everything, you don't want people knowing that about you'. Do you remember saying that.
A.Yes.
Q.As I understand it, that's why you didn't complain to your mother.
A.Yes.
Q.And that was at a time when you were 14; you're referring to that time.
A.Roughly, yeah.
Q.Later on, as I understand your evidence, you complained to your girlfriend, a few years later.
A.Yes.
Q.You were about 20 or 21 when you told her.
A.When I made the phone call to [BCW], yeah.
Q.So presumably at some stage your attitude about being embarrassed changed.
A.Yes. When I got older I got angrier and I realised what had been done to me. When I was younger, that was the first of anything that ever happened to me and I had no idea of what it was all about and as you get older you realise what actually happened to you and you start breaking things down and you realise what actually happened and how you were taken advantage of.
Q.You continued to be embarrassed about that throughout your teenage years.
A.Yes.
Q.And part of that was the fact that you were playing football.
A.No. Just because I didn't want anyone to know, not because of football. Football was a part of it. I meant when I played football. Just being a popular kid, a good football player doesn't mean that's the reason why you didn't tell anybody. I'm just giving you an example.
Q.When you were 17 or 18 you were still playing football.
A.I had my first reconstruction when I was about 17, 18.
Q.You never complained to [CJL], did you, when you were 17 or 18.
A.Not that I can recall. But we used to do a lot of drinking, a lot of drinking back then.
Q.You never cried in front of him, you were his big brother, weren't you.
A.Yeah. I have cried in front of my brother, of course, many times.
Q.But you wouldn't have told him when he was 14 or 15 that the accused was touching you in a sexual manner.
A.Not to my memory, no.
Q.That's something you would remember, isn't it.
A.It depends on how many beers we would have had.
Q.It's not something you tell your little brother, is it.
A.In my memory, no.
The prosecutor then called evidence from both CJL and TBL.
CJL is about three years younger than RSL.[30] He gave evidence that he went to live with RSL and Susan when he (CJL) was ‘about 14. Like 14, 15. 13 to 14 to 15 mark.’[31]
[30] CJL was born on 6 March 1984; T 293.7-8.
[31] T 297.16-18.
He gave the following evidence-in-chief of an occasion when RSL told him about the alleged offending:[32]
[32] T 297.19-298.27.
Q.Has [RSL] ever told you anything about what [BCW] may have done to him.
A.He has, yes.
Q.Where did that occur, the conversation.
A.He broke down a bit when I was living with him but he didn't really go into what happened. He kind of like was crying but I got the gist of it, kind of. But he actually told me, I think probably when I was 16, I think.
Q.What did he say. To the best of your recollection, what were the words he used.
A.Just that [BCW], you know, touched him up or something, that [BCW] touched him at school.
Q.Did he say anything about where or how [BCW] would touch him.
A.No. He mentioned about just putting his hands down his pants on one occasion.
Q.What was [RSL’s] demeanour like when he told you this.
A.Very upset, like breaking down, really screaming, going off, like crying. In a panic state.
Q.Was he forthcoming with information.
A.Yes, to me, because we are close, so he confided in me a fair bit about it, so.
Q.Did he appear comfortable talking about it.
A.No, no, because he, he didn't like the fact that that happened to him, so. He was comfortable talking about it, but he wasn't comfortable talking about the idea of what happened, so.
Q.This conversation, was it at the place that he lived at with Susan.
A.Yes.
Q.Was anyone else present, apart from you and [RSL].
A.No, maybe my other brother, [ML] might have been there at the time.
Q.Was it in the daytime or the night-time.
A.I think towards the evening. He used to play a lot of songs and smoke a bit of marijuana, you know, so yeah. It was around those times, and when he drank a bit, that's when more came out.
Q.Had he been drinking on this evening.
A.He wasn't a big drinker but he did drink a little bit, so, and that's, yeah.
Q.But on this particular evening, before he told you this, had he been drinking.
A.To my best recollection he had a couple of drinks, yes.
Q.Had he been smoking marijuana.
A.Yes.
During cross-examination, CJL was asked what he meant when he said RSL had told him the accused put his hands down his pants ‘on one occasion’. He said:[33]
[33] T 299.23-37.
A.When I, when I meant 'one occasion', I meant that one occasion he told me that he put his hands down his pants. Well I'm sure he did it plenty of times for it to happen.
Q.Right, how are you sure about that.
A.I'm not sure, but when he used to come around, when I was - when we were living at mum's, you know, he was all out of character, all out of, you know.
Q.But how are you sure -
A.I'm not sure, sorry, I'm not sure.
Q.So why did you say that.
A.Because I'm [RSL’s] brother and he - the trauma he's gone through.
Q.You've talked about this quite a lot, haven't you.
A.Yes, yes.
When CJL was asked in cross-examination whether RSL had told him anything else about the offending, he said:[34]
[34] T 302.19-28.
A.It was a touchy subject between my brother. [RSL’s] bawling in my eyes, you know, he wanted to kill himself, all this, so.
Q.When he was telling you this, he was wanting to kill himself, was he.
A.Yeah, well he was, he was overwhelmed, he didn't know what to do, he had all this happened, it was a shock, as it would to anyone.
Q.Did he say he wanted to kill himself, did he.
A.No, no.
RSL’s father, TBL, gave evidence-in-chief relevant to the 2009 assault. TBL described receiving a phone call from RSL immediately prior to the 2009 assault, at which time RSL told him that he was going to the accused’s place, that the accused had molested him and he wanted to confront him.[35] TBL gave the following evidence:[36]
[35] T 380.10-11.
[36] T 380.12-29.
Q.Was that the first you'd heard of [BCW] and [BCW] allegedly molesting him.
A.No, he did tell me that - about three years before that he had confided in me and told me what had happened.
Q.And that conversation three years prior, where did that occur.
A.That would have occurred over the phone.
Q.And, when you say he confided in you and told you what had happened in that conversation, what did he say when he first told you.
A.He said that he had been molested as a child. It was - someone it was - it was a former football coach or someone that worked at a school and he used to come around to his mother's house and take him out and buy him things and then molest him.
Q.So that was in this first conversation a few years prior to the Friday night.
A.Yep.
In cross-examination, TBL said that it was in about 2007 that RSL had previously disclosed to him that he had been sexually abused.[37] RSL was not examined or cross-examined about that occasion.
[37] T 392.6-10.
In his closing address, the prosecutor submitted that the complaint evidence given by CJL was the ‘initial complaint’ for the purposes of s 34M and the only evidence of complaint relied upon by the prosecution. The prosecutor acknowledged that RSL could not recall making that complaint to CJL but could recall doing a lot of drinking at about that time, and of crying many times in front of CJL. The prosecutor submitted that it was likely the conversation as described by CJL did occur, having regard to his description of RSL breaking down, screaming and being in a panicked state, and that such circumstances were consistent with the allegations made by RSL. Nevertheless, the prosecutor conceded the probative value of CJL’s evidence on this topic was reduced, as RSL could not recall the conversation.
The prosecutor submitted that the evidence given by TBL of a complaint having been made to him by RSL with respect to the offending in about 2007, should be used only to put TBL’s other evidence into context (insofar as to explain that he knew about RSL’s allegations against the accused, before the phone conversations he had with RSL and the accused at the time of the 2009 assault.) I have only used that evidence for that very limited purpose and not for any other purpose.
As previously stated, neither Susan nor RSL’s mother gave evidence. RSL’s evidence of the alleged complaints he made to both Susan and his mother must post-date the occasion described by CJL, which on CJL’s evidence must have occurred, at the very latest, in or about 2001, but possibly in or about 1998. RSL gave no evidence of the details of the alleged conversations he had with either Susan or his mother, such that it is impossible to determine, from his evidence, whether those conversations comprised ‘information by way of elaboration of the initial complaint’, pursuant to s 34M(6).
The evidence given by RSL on those topics was therefore inadmissible. However, that evidence was introduced by way of cross-examination, in circumstances where the prosecutor had opened the case expressly eschewing any reliance on complaint evidence.
As to the alleged complaint made to RSL’s mother, this evidence was elicited in cross-examination as part of a line of questioning with respect to a prior inconsistent statement made by RSL, namely that when aged about 15, RSL was asked by his mother whether he was being abused and he denied this.
As to the alleged complaint made to Susan, the forensic basis for defence counsel’s decision to pursue this line of questioning was to put into doubt RSL’s evidence both as to the alleged offending and the likelihood of any such complaint having been made to Susan, having regard to RSL’s evidence that when he was living with Susan, he and Susan had met BCW at a shopping mall and invited him to their home for coffee.
In such circumstances, I have only used the evidence given by RSL as to the alleged complaints he made both to his mother and Susan, for those limited purposes and for no other purpose.
Forensic Disadvantage
The allegations relate to a period spanning three years from January 1994 to December 1996, meaning there has been a period of delay of over 27 years between the alleged offending and the trial.
RSL first told the police about the alleged offending in February 2009, shortly after the 2009 assault. RSL gave evidence that he first reported the offending to police at the Port Adelaide Police Station in 2010. However, the police investigation then ceased (precisely why is uncertain), until it was renewed following a ‘6P referral from the Royal Commission’,[38] such that the accused was arrested and interviewed by police with respect to the alleged offending for the first time on 19 December 2018 (the December 2018 interview).
[38] T 353.26-27.
The delay in both the initial reporting of the alleged offending, and the further delay in the prosecution of the alleged offending, has resulted in forensic disadvantage to the accused in terms of challenging and responding to allegations so long in the past. Had the matter been reported and then prosecuted at a time contemporaneous with the allegations, the accused may have been able to provide a relatively contemporaneous recollection of the nature of his interaction with RSL at the time of the alleged incidents. He may have been better able to explore the circumstances of the individual acts which are said to comprise the offending, to make a defence other than a simple denial having regard to the alleged timing and location of those alleged acts and to better test the events that may have affected RSL’s recollection and/or reliability.
In 2009, Dr Thyagarajan diagnosed the accused as suffering from Parkinson’s Disease. This is a progressive degenerative disease of the brain, which affects motor function and other aspects of brain function, including cognitive function.
When the accused gave evidence in March 2021, the physical effects of the disease upon him, including generalised dyskinesias, with involuntary movements and speech difficulties, were readily apparent.
The accused’s evidence contained numerous internal inconsistencies and was, in many important aspects, inconsistent with earlier out of court statements made by him. At the conclusion of the accused’s evidence, counsel for the accused requested, and was granted, a lengthy adjournment of the trial to arrange for the accused to be examined to determine the impact of the Parkinson’s Disease on the accused’s cognitive functioning, and specifically on his ability to give reliable evidence having regard to any potential impact of that condition (and/or dementia) on his long-term memory.
The accused was reviewed by Dr Thyagarajan on 9 April 2021. Dr Thyagarajan took a history from the accused that he was becoming increasingly forgetful, for example that he would forget where he had left his keys, he would forget people’s names and at times he had left the stove on.
Dr Thyagarajan conducted an Addenbrooke’s cognitive examination of the accused, being a validated screening test for cognitive impairment and dementia. In the domain of memory, the accused scored 19/26, displaying difficulty with short term recall, although he performed better when prompted with cues. The accused’s total score was 86/100. A score of over 88 is considered to be completely normal. A score of less than 83 is considered abnormal and within the dementia range. As such, the accused’s score fell within the cut-off, meaning he does not have dementia, but nevertheless does demonstrate significant cognitive impairment and specifically impairment in immediate recall.
In his report dated 9 April 2021,[39] and in evidence, Dr Thyagarajan confirmed that this impairment was consistent with the progression of the accused’s Parkinson’s Disease. However, in the absence of the accused undergoing neuropsychological assessment, he was unable to make a diagnosis of dementia, nor could he express an opinion as to whether the accused’s cognitive impairment impacted on his long-term memory (and therefore on the reliability of his evidence). He said:[40]
[39] Exhibit D3.
[40] T 647.32-34.
I think to some extent memory will be impaired short more than long term, but the exact extent he can’t remember things from, you know, far back I can’t say.
I accept that the progression of the accused’s Parkinson’s Disease and resulting impact on his cognitive functioning may have affected the accused’s ability to accurately recall events from many years ago and thus the reliability of his evidence, resulting in additional forensic disadvantage to the accused. I will consider this issue in more detail in my assessment of the accused’s evidence.
RSL gave evidence that he attended at the accused’s parents’ homes, with the accused, and that on occasions he stayed there overnight with the accused. Some of the alleged unlawful sexual acts are alleged to have occurred at the accused’s mother’s home. The accused’s father died in or about 2001, and his mother is also deceased. But for the delay in the reporting and prosecution of the alleged offending, it is possible one or both of the accused’s parents could have given evidence as to whether they had ever met RSL, and if so, in what circumstances. They could have given evidence of their living arrangements from time to time and provided details as to other incidental matters, such as the number of bedrooms in their homes and the furniture contained therein, whether there was a shed in the back yard of any such home, whether they had a dog (and the like).
Both RSL and CJL gave evidence that their mother was still alive, but was very ill, suffering emphysema. Det Trimboli gave evidence that RSL’s mother was suffering from significant health issues, was bedridden and unwilling to assist with the police investigation of the alleged offending.
But for the delay in the reporting and prosecution of the alleged offending, RSL’s mother may have been able to give evidence on the circumstances in which the accused first attended at the family’s Rosewater home, the number of times he visited the home and over what period, whether the accused would take RSL out on Saturday afternoons, or overnight, and the frequency and timing of these occasions.
RSL gave evidence the alleged offending ceased after he commenced a relationship with his long-term former girlfriend, Susan, and specifically after he moved in to live with her at a house at Semaphore Park. He was embarrassed about the fact that the abuse occurred on several occasions after the couple started dating (but before they moved in together).
RSL and the accused both gave evidence about interactions between them when RSL was an adult, in Susan’s presence. For example, the accused’s evidence that he saw RSL and Susan at a shopping mall and that RSL and Susan came to his home at North Haven for pizza.
Susan was not called to give evidence. Det Trimboli explained that she had attempted to contact Susan. She said that Susan did not wish to become involved in the matter both because her relationship with RSL had ended and because of issues relating to domestic violence.
Had the alleged offending been reported and prosecuted without delay, Susan may have been able to give evidence on when her relationship with RSL commenced and of her observations of any interactions between RSL and the accused.
The first two unlawful sexual acts are said to have occurred in a storeroom attached to the art room at the school. In or about June 2018, Det Trimboli made enquiries in order to obtain a plan of the school grounds.[41] Exhibit P10 contains a floorplan of the school, created in February 2001, which depicts an Art Centre at a location marked ‘12’. That floorplan contains the handwritten notation ‘old Art Rooms – now replaced.’
[41] T 369.16-22.
Exhibit P10 also contains a plan for the school art room, revised 15 March 1998. That plan depicts five specific spaces within the art room, one large area and four smaller adjacent areas and contains a handwritten notation ‘old Art Room now demolished’.
Had the alleged offending been reported and prosecuted without delay, photographs of the art room (and storeroom) could have been taken, and/or a view conducted, in order to ascertain its ability to be accessed (and/or observations made of it) from adjacent areas.
Det Trimboli gave evidence that she was given the names of two persons who may have been able to assist to locate the school canteen records but that she was unable to find those persons. Had the alleged offending been prosecuted in a timely manner, if canteen records were kept, they could have been obtained, thus (potentially) assisting the court to assess both the reliability and credibility of RSL’s evidence on the issue of the frequency with which BCW allowed him to purchase items on his school canteen account.
In addition, defence counsel submitted that the absence of other evidence had resulted in forensic disadvantage to the accused, namely:
·The absence of any ‘football records’. Counsel for the accused did not specify whether he meant records relating to RSL’s player history, or alternatively the accused’s coaching history and/or the accused’s history as a runner with the Port Adelaide Football Club. While these records were relevant to the allegations, there was no evidence that any attempts had been made to source any such records and nor any evidence that those records were no longer available.
·‘The absence of any specific date regarding when Port Sports moved from Port Adelaide to West Lakes’. In fact, Mr Fiacchi gave evidence on this issue, namely that the store moved to West Lakes Mall in 1993, being before the alleged offending.
·‘Phone records of TBL’ relevant to the 2009 assault. There was no evidence before the court that any attempts had been made to locate those records and therefore no evidence as to whether the records were now no longer available to be produced.
·‘School Enrolment Records’. Det Trimboli gave evidence that she sought records of RSL’s enrolment at the school and had obtained such records.
·Records pertaining to ‘a protocol about visiting homes of parents that occurred at [regional school] and/or the school’. There was no evidence as to what, if any, attempts had been made to obtain documentation or evidence relating to any such protocol, save for the evidence given by Det Trimboli that she had ascertained that the former principal of the [regional school] was deceased.
·Medical records for the accused prior to 2009 – again there was no evidence as to what, if any, attempts had been made to locate any such medical records and therefore no evidence that such records were not available and/or had been destroyed due to the passage of time. Further, the Flinders Medical Centre records include a record of a consultation in 1996.
I refer to the above for the sake of completeness.
There were other issues raised by defence counsel in his closing address purporting to be examples of forensic disadvantage. However, those other examples were relevant to the issue of whether the evidence led by the prosecution was sufficient to prove the charge beyond reasonable doubt, rather than the issue of forensic disadvantage.
Notwithstanding my observations at paragraphs 94 and 96 herein, I am satisfied that the period of time that has elapsed between the alleged offending and the trial has resulted in significant forensic disadvantage to the accused. I have taken that forensic disadvantage into account when scrutinising the evidence to assess whether the prosecution has proved each element of the offence beyond reasonable doubt.
Prior Inconsistent Statements
In his closing address, counsel for the accused submitted that the evidence given in court under oath by RSL differed from what he had told the police on earlier occasions, and from the evidence he gave at the Disputed Facts Hearing.
By letter dated 1 October 2021, counsel for the accused identified 25 purported separate examples of where RSL’s evidence was submitted to be inconsistent with either prior out of court statements made by him, or the evidence he gave at the Disputed Facts Hearing (the 1 October 2021 letter). The evidence relied upon was identified by reference to the transcript, but the source of the earlier alleged prior inconsistent statement(s) was not.
The prosecutor subsequently provided brief written submissions, disputing some of the claimed prior inconsistencies.
I am not satisfied that the evidence listed as points 2, 3, 9, 10, 12, 19 and 24 of the 1 October 2021 letter is inconsistent with proven prior out of court statements made by RSL or the evidence he gave at the Disputed Facts Hearing, albeit some of those points refer to evidence given by RSL which is inconsistent with the agreed facts.
Insofar as I am satisfied that the complainant gave evidence which was inconsistent with earlier evidence or out of court statements made by him, I have identified that evidence and considered the same hereunder.
The evidence given in court under oath by the accused also differed in many aspects from what he told the police in his various statements and record of interview.
While this case is to be determined by the evidence given on oath and subject to cross-examination in court, evidence of out of court statements is relevant and put before me to assist me to determine the reliability and credibility of the evidence given by the maker of those out of court statements in court.
Before I have regard to a prior inconsistent statement there must be some evidence that the prior inconsistent statement has been made. I may use evidence that a witness has said something different on a previous occasion or omitted to say something on a previous occasion as evidence affecting the credibility of that witness and the accuracy of that witness as a historian.
Similarly, insofar as RSL gave evidence at trial which differed from evidence given by him on oath, in earlier court proceedings, this is relevant as to my assessment of his reliability and credibility as a witness.
Potential Admissions/Discreditable Conduct
The evidence of the 2009 assault was introduced in cross-examination primarily to elicit evidence of prior inconsistent statements made by RSL and to challenge his credibility. It was admitted to test RSL on the accused’s claim that RSL had made up the allegations in order to procure money from the accused, something the accused claimed RSL had done previously by threatening (or bribing) him. It was the defence case that the accused had concocted the allegations to obtain money either directly from the accused or by way of compensation.
I have only used the evidence relating to the 2009 assault for purposes relevant to credit. The evidence of the 2009 assault must not be used to corroborate RSL’s evidence with respect to the charged offence and I have not used the evidence for that purpose.
During cross-examination, RSL gave evidence that when the accused spoke on the phone to his father during the course of the 2009 assault, he said that he had raped him.[42] This evidence was supported by that of TBL.[43] The accused also gave evidence about the 2009 assault, wherein he described RSL as having made threats to kill him, and said that it was in that context that RSL had forced him to confess on the phone to RSL’s father, that he had assaulted RSL.
[42] T 215.10-15.
[43] T 384.2-17.
Although the evidence given by RSL and the accused differed as to precisely what occurred during the 2009 assault, there was no dispute that the statements made by the accused on the phone to TBL during the course of that assault were made under circumstances of significant duress. The evidence is not admissible, and cannot be used, and I have not used it, as an admission on the accused’s part.
RSL gave evidence that during that same phone conversation, he (RSL) asked the accused whether he had raped his older brother, AL, and the accused said yes. RSL gave evidence his father had then asked the accused if he had raped CJL, and the accused said no.[44] TBL gave evidence that during the phone conversation he had with the accused during the 2009 assault, he asked the accused if he had molested any of his other children and that the accused said no.[45]
[44] T 215.15-20.
[45] T 384.3-4; T 384.23-26.
The accused was not examined on this specific topic.
For reasons I have outlined more fully below, I accept TBL’s evidence that the accused denied having molested any of TBL’s other children. It follows that I reject RSL’s evidence as to what he claims the accused said while on the phone to TBL about having raped RSL’s older brother, AL.
During cross-examination, RSL was questioned as to what knowledge he had prior to the 2009 assault of rumours that the accused was a paedophile and denied having heard any such rumours. In his responses, RSL gave evidence to the effect that he assumed, having regard to the fact the accused had worked for many years as a teacher, and of what he had done to him, that ‘he wasn’t the first one’.[46] In cross-examination, RSL was also asked a number of questions about a person called BL and whether he had confronted BL about a belief he (RSL) had, namely that the accused was abusing BL. RSL said he had gone to BL’s home and spoken to his mother about this, but not BL. He agreed he had told the police in a statement made in September 2019 that he had confronted BL in a car park and asked him if anything had happened to him when he was a kid.
[46] T 181.7-182.14.
Neither BL, nor BL’s mother gave evidence. There was no evidence before the court of any person, other than RSL, having made an allegation that the accused had sexually abused them. There was no evidence before the court that RSL had, prior to the 2009 assault, heard rumours that the accused was a paedophile. He expressly denied having heard any such rumours. There was no evidence before the court that there were, at any time, rumours circulating that the accused was a paedophile.[47] If there was such evidence, it may amount to evidence of discreditable conduct.
[47] In his February 2009 statement, RSL speculated that the accused may have abused others. However, having regard to all of the evidence, I reject the submission that RSL’s evidence on this issue was inconsistent with any proven prior out of court statement. I accept RSL’s evidence that he assumed that as the accused had been a teacher for many years, with access to children, that he had abused others, in addition to himself. See evidence at T 181.7-182.14.
The evidence on this issue is only relevant, and can only be used, for a very limited purpose, being that for which it was elicited in cross-examination, namely on the issue of RSL’s credibility generally. It was introduced for that purpose and in the context of defence counsel seeking to prove inconsistencies in RSL’s evidence. I have only used the evidence for that purpose.
Lies
The prosecutor submitted the accused had lied in his evidence and specifically that the evidence he gave that RSL had tried to blackmail him for $10,000 shortly prior to the 2009 assault, was a lie. The prosecutor did not rely on the lie by way of consciousness of guilt, rather it was submitted that I should reject, as not being a reasonable possibility, the claim made by the accused that RSL had made up the allegations in order to extract money from him.
Whether the accused has told a lie or lies is a matter for me to determine. If I am satisfied the accused has lied, this is relevant and can be used in my assessment of his credibility. However, I cannot use this as evidence of his guilt. If I find the accused has lied, it does not add to the prosecution case. It remains for me to determine, having regard to all of the evidence, whether the evidence is sufficient to satisfy me beyond reasonable doubt as to the accused’s guilt.
Motive to Lie
It was submitted that RSL had a motive to lie with respect to the offending, to obtain money from the accused, or by way of compensation. The accused gave evidence that RSL had previously borrowed money from him and had threatened to expose him as a paedophile if he did not give him $10,000.
For the reasons outlined below, I reject the accused’s evidence as to the alleged $10,000 blackmail. I am satisfied that from time to time the accused did give the complainant money. However, I reject as a reasonable possibility, that the complainant has concocted the allegations as a basis upon which to obtain money or compensation, either from the accused or others.
It is for the prosecution to prove the accused’s guilt.
There is no onus on the accused to prove that RSL had a reason to make false allegations against him. Although I have rejected the accused’s evidence on the issue of the blackmail, that does not make RSL’s evidence as to the alleged offending any more credible.
There may be many reasons why a witness may lie. I must not treat RSL’s evidence as being any more credible or believable just because there is no evidence to provide a reason for why he may be lying.
I must carefully consider all of the evidence to determine whether I am satisfied as to RSL’s credibility and reliability.
Protected Communications
Ms Alison Newton, Clinical Psychologist, was called by RSL to give evidence at the Disputed Facts Hearing. Both the prosecutor and counsel for the accused had seen a transcript of that evidence and were therefore aware of its contents.[48]
[48] Noting that as the trial judge, I had not read that transcript.
During cross-examination of RSL, counsel for the accused foreshadowed the possibility that he may seek to cross-examine RSL on potential prior inconsistent statements he had made to Ms Newton.
An issue then arose as to whether those statements were ‘protected communications’ within the meaning of s 67D of the Evidence Act 1929 and if so, whether permission should be granted for the accused to adduce such evidence.
Neither the prosecutor, nor defence counsel had access to Ms Newton’s original notes, or a report prepared by her dated 23 August 2010. The court was never provided with a copy of Ms Newton’s notes, but in the context of this application, was provided with a copy of Ms Newton’s report dated 23 August 2010 and a copy of the transcript of her evidence given at the Disputed Facts Hearing.
Counsel for the accused argued that the material contained in evidence given by Ms Newton at the Disputed Facts Hearing, was not a ‘protected communication’, although he acknowledged that material contained in her report and/or in any handwritten notes of consultation prepared by her, would be protected.
The actual evidence that was sought to be adduced by the accused was the alleged prior inconsistent statement of RSL. Whether the record of that statement was contained in Ms Newton’s notes, her report or given by way of evidence at the Disputed Facts Hearing was, in my view, irrelevant in terms of determining whether or not the communication was itself a protected communication.
Ultimately, counsel for the accused sought permission to adduce evidence of:
1.what RSL told Ms Newton as to how old he was when the abuse began and how old he was when it finished (the duration evidence); and
2.an alleged prior omission on the part of RSL, when discussing the details of the alleged abuse with Ms Newton, as compared to the detail he gave in court in evidence as to those alleged occasions (the detail evidence).
I determined it was appropriate for me to make a preliminary examination of both the transcript of Ms Newton’s evidence and her report to determine whether the application to adduce evidence should be granted.
I was satisfied the accused had a legitimate forensic purpose for seeking permission to adduce the evidence, namely, to discredit RSL and that there was an arguable case that the evidence would materially assist the accused in the presentation or furtherance of his case, noting that the credibility and reliability of the complainant in this matter is critical to a finding of guilt.
Pursuant to s 67E(1) of the Evidence Act, and subject to s 67(2), a communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
Pursuant to s 67D, such a communication will be made in a therapeutic context if:
(a)the communication is made –
(i) to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii) for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b)the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
Ms Newton saw RSL in the context of a referral from another psychologist after RSL had been provided with a Mental Health Care Plan through his general practitioner. She treated him in a therapeutic context with respect to the alleged abuse. While Ms Newton was ultimately called to give evidence at the Disputed Facts Hearing, she was not engaged by the accused for the purpose of providing a report or evidence for that purpose, such that the communications made by RSL to Ms Newton were made in circumstances giving rise to a reasonable expectation of confidentiality. I am satisfied that the communications made by RSL to Ms Newton were made in a therapeutic context.
Counsel for the accused submitted that the communications were not subject to public interest immunity as they fell within s 67E(2) of the EA, as they were communications ‘made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings’. Specifically, it was submitted that as Ms Newton gave evidence at the Disputed Facts Hearing, any communications made to Ms Newton by RSL, were for the purpose of those proceedings.
I reject that argument. Section 67E(2)(b) is confined to a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings. The proceedings relevant to the 2009 assault are not such proceedings.
I am satisfied the evidence sought to be adduced was evidence of protected communications.
Pursuant to s 67F(5), in deciding whether to grant permission to adduce evidence of a protected communication, the court is to weigh the public interest in preserving the confidentiality of protected communications against the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence. Section 67F(6) outlines the various factors to which the court must have regard when weighing those considerations.
As to the duration evidence, it was submitted that RSL’s evidence given at trial was inconsistent with what he had told Ms Newton, as described by her in evidence at the Disputed Facts Hearing.
There was evidence that the accused and RSL knew each other at times when RSL was both a child, and an adult. Evidence as to when the alleged sexual acts occurred was therefore directly relevant to determining whether they were unlawful. As such, having regard to the factors set forth in s 67F(6), I allowed the duration evidence to be adduced as I was satisfied, after conducting the required balancing exercise, that the balance weighed in favour of the evidence being adduced.
As to the detail evidence, counsel for the defence wished to explore, by way of cross-examination, precisely what RSL had told Ms Newton as to the circumstances of the various alleged unlawful sexual acts, with a view to using any difference in such detail, and in particular, any omission of detail in what was said to Ms Newton, to discredit RSL.
Ms Newton did not obtain a detailed history from RSL as to the alleged occasions of sexual abuse. Further, her record, as reproduced in her report and in her evidence, as to what RSL had told her as to the details of the first alleged occasion of abuse at school, was not inconsistent with the evidence given by him in court, save for the fact that RSL’s evidence omitted to refer to one matter disclosed to Ms Newton as to the accused’s alleged behaviour on that occasion.
In those circumstances and having regard to the fact that RSL was otherwise extensively cross-examined with respect to numerous potential prior inconsistent statements, I formed the view that, in weighing the respective public interest in presuming the confidentiality of the protected communications and that of preventing a miscarriage of justice, that the balance favoured the retaining of that confidentiality.
In reaching that opinion, I had careful regard to the purpose for which RSL consulted Ms Newton, namely for therapy and psychological treatment and the context in which he sought such treatment. The circumstances in which he gave the history to Ms Newton can be distinguished from those where he was being formally interviewed by police for the specific purpose of recounting his memory of the abuse. The dates of Ms Newton’s consultations with RSL were primarily in the month immediately after the 2009 assault. The detail he provided to Ms Newton with respect to the first occasion of the alleged abuse at school was provided during his second appointment on 20 February 2009, at a time when he reported sleeping very few hours at night and increasing paranoia.
Having regard to the limited weight therefore that could be placed on any alleged prior inconsistent statement, I was satisfied that the public interest in preserving the confidentiality of the protected communication, outweighed the public interest in preventing the miscarriage of justice that might arise from suppression of relevant evidence. I declined the accused’s application to adduce the detail evidence.
The Evidence
Background Evidence
The Complainant
RSL is now 41 years of age. He is one of five brothers, two of whom are younger than him, and two of whom are older.[49]
[49] T 18.21-32.
RSL’s parents separated when he was aged about 2 or 3. At that time the accused’s father, TBL, moved to Queensland, where he still lives, and took two of RSL’s four brothers with him.[50]
[50] T 19.8-22; T 379.19-34.
RSL, his older brother AL, and his younger brother CJL, remained in Adelaide, where they lived with their mother, first in the southern suburbs, then from RSL’s mid-primary school years, in Rosewater.
RSL gave evidence that his mother drank heavily and was physically and verbally abusive to him and his brothers. She gambled money on the pokies and struggled to properly provide for her family, such that there was often no food in the house. He said his mother packed him vegemite sandwiches for lunch, which, if he did not eat, he would have to eat the next day, and sometimes these were five days old.[51]
[51] T 21.22-22.32; T 23.22-30.
RSL described an occasion when he was aged between 10 and 13 when he was apprehended by police after having done ‘a break and enter’, at which time he stole some money, which he used to buy some groceries for the house.[52]
[52] T 22.34-23.11.
After his parents separated, RSL remained in semi-regular contact with his father, with whom he communicated by way of telephone, sometimes several times per week, but sometimes only every few months.[53] There was no evidence that RSL had ever visited his father in Queensland (either as a child or as an adult), nor was there any evidence that TBL had returned to Adelaide to see RSL, during his childhood.
[53] T 379.35-380.1.
RSL attended a local primary school and started Year 8 at the school in 1994.
The Accused
The accused is now 71 years of age and gave evidence that he commenced teaching at the school in 1989. He remained a teacher at the school until December 1994. Previously he taught at a regional school from 1975 to 1989.[54]
[54] T 411.12-32.
The accused taught history, geography, PE and fine arts at the school, teaching classes through all year levels from Year 8 through to Year 12.[55]
[55] T 412.23-33.
In his role at the school, the accused was responsible for a care group (or home group) that he would look after for the whole year. The students would come in every morning and he would do a roll call. There were approximately 15 to 20 students in his care group each year.[56]
[56] T 426.6-25.
At no stage was RSL a student in any of the classes taught by the accused at the school, nor was he a member of any care group for which the accused was responsible.
The accused gave evidence that he taught the complainant’s older brother, AL, for one term, about two years prior to meeting RSL but that he had never taught RSL’s younger brother, CJL.[57]
[57] T 428.4-18.
The accused gave evidence that he had six brothers and six sisters, including his younger sister, DAR. He gave evidence that when he transferred from the regional school to the school, he lived for about six to eight months with a sister, Mary, in St Agnes but he was unable to recall precisely where he had lived, or for what periods, for the following 10 to 15 years thereafter.
The accused gave evidence about several investment properties he owned during the relevant period. He said he started acquiring those properties in or about 1992 and ultimately, had four properties, including two units on Seaview Road at Henley Beach, a house at North Haven and a two-bedroom unit at Christies Beach.
The effect of the accused’s evidence was that from time to time he lived in those investment properties but that they were also, at times, tenanted.
The accused gave evidence that he sold all of these investment properties. He initially said that he did so in 2009 as ‘I cleared it all up because of that incident at North Haven’.[58] Later, he said he sold the properties in 2010, because he wanted to reduce his debt.[59]
[58] T 413.38–414.1.
[59] T 421.9-11.
How did the Complainant and the Accused meet?
Complainant’s Evidence
RSL gave evidence that he met the accused when he was in Year 8. He believed he met him before he turned 13, so in the early part of 1994.
When asked where he was when he first met the accused, RSL said:[60]
[60] T 24.20-21.
It would have been around the school yard, just around the school yard.
When asked if there was an occasion when he had a conversation with the accused, RSL gave the following evidence:[61]
[61] T 24.23-34.
A.There was one time where he caught me wagging and I had my [school] uniform, [school] uni-shirt on to know that I went to that school, so he must have known, and plus with the tracksuit pants that went with the uniform and I was sitting at the front of Cash Converters, which is still there today, Port Adelaide, I can remember it so vividly and, yeah, and I just remember just what it led to from that moment there. Anyway. Yeah, he picked me up from there and said he will take me back to school because he knew it was, it was during class hours, it wasn't a lunchbreak or whatever, so he assumed I was wagging it, which I was and –
When asked to elaborate, RSL said that he was by himself at a bus stop on Commercial Road, on the same side of the road as Cash Converters, waiting for a bus.
He said the accused pulled up in front of him in a car which he described as a ‘brown long Statesman Coupe De Ville’.[62]
[62] T 25.25.
The accused told him he was a teacher. When he said he was wagging, the accused offered to take him back to school and said he would not dob on him.[63]
[63] T 25.19-20.
RSL clarified that he had not seen the accused around at the school before this occasion.[64]
[64] T 26.10-12.
RSL said the accused came across as a funny, jovial person and he liked him straight away. He described him as a father-type figure and compared him to Bill Cosby.[65]
[65] T 26.24-26.
RSL gave evidence that thereafter, he saw the accused during recess and lunch at school, just walking around, picking up cans or bottles and just talking to people.
He referred to a line in the movie ‘Denis the Menace’ namely ‘Hey Mr Wilson, Hey Mr Wilson what are you up to?’ and said that when he saw the accused in the school yard, he would yell out ‘Hey Mr Wilson’ as a bit of a joke.[66]
[66] T 28.5-19.
RSL said that the accused was never his teacher but that after having first met him and calling out to him in the yard for around three months, the accused allowed him to use his account to purchase lunches and recesses from the school canteen.[67] He gave the following evidence:[68]
[67] T 28.24-31; T 29.11-15.
[68] T 29.16-24.
Q.When you started using his canteen account, how often did you use it.
A.I'd say once, twice, every - once every third day, whenever I needed something.
Q.How long did that go on for, that you were getting the food on his account.
A.That would have been, it would have been just starting, it would have been, to me about two-and-a-half years, two years.
RSL gave evidence that the accused had a number of bins in his art classroom and that on occasions he would ask RSL to collect cans and bottles from around the yard, which he would then empty into those bins at lunchtime. When RSL was asked whether he would get anything in return for collecting those cans and bottles for the accused, he said:[69]
[69] T 31.10-11.
Just stuff that was on the canteen and I would receive a couple of dollars here and there.
RSL recalled that the accused taught at the school from when he was in Year 8 to the end of Year 9 or the beginning of Year 10. Throughout his evidence he maintained that the accused had taught at the school during 1995.[70]
[70] T 29.29-35.
A proposition was never put to RSL that he had engaged in any form of consensual sexual activity with BCW when he was an adult. BCW gave no evidence of ever having engaged in any sexual activity with RSL.
RSL saw Ms Newton in a therapeutic context to address mental health issues. Although he provided some information to her about the abuse, he did so for information purposes. Those consultations can therefore be distinguished from occasions when RSL was being asked to carefully consider all he could recall of the abuse, either during a police interview or when giving evidence. Further, RSL saw Ms Newton in the context of him suffering significant mental health issues.
As such, while there were some anomalies in RSL’s evidence in terms of the precise timing and duration of the abuse, I am satisfied that his recollection the abuse continued after BCW left the school is both truthful and accurate. Further, I am satisfied of the reliability and credibility of RSL’s recollection that BCW did not abuse him after he left home and moved in with Susan, being when he was aged 16. If RSL told Ms Newton the abuse ceased at age 18, I am satisfied that he did so in error, having regard to the circumstances in which he consulted with her.
When RSL was aged about 14, he had a conversation with his mother, wherein he denied that he was being abused.[572] RSL gave evidence that he had not told his mother about the abuse at that time, because he was embarrassed, humiliated and ashamed, particularly in the context of him being a football player.
[572] See discussion at paragraphs 55 and 442 herein - the proven prior inconsistent statement identified at point 23 of the 1 October 2021 letter.
There are many reasons why a victim of sexual abuse elects to disclose, or withhold, information pertaining to that abuse, at one time or another. I accept RSL’s evidence as to why he did not tell his mother about the abuse at that time. His denial of the abuse, at that time, does not cause me to otherwise have any reasonable doubts as to the reliability and credibility of RSL’s evidence that he was sexually abused by BCW as a child.
RSL could not recall making the initial complaint to CJLwhen CJL was about 14 or 15. I accept his explanation as to why, namely, that he used to drink a lot at that time.
In my assessment of the complainant’s reliability and credibility, I have very carefully considered the inconsistencies in the evidence RSL gave at trial, when compared to the evidence he gave at the Disputed Facts Hearing,[573] what he told the police in his February 2009 statement[574] and the Agreed Facts.[575]
[573] The proven prior inconsistent statements identified at points 4, 6, 7, 13-18 and 21 of the 1 October 2021 letter.
[574] The proven prior inconsistent statements identified at points 1, 5, 8 and 11 of the 1 October 2021 letter.
[575] Agreed Facts 9 and 11 and the prior inconsistent statement identified at point 20 of the 1 October 2021 letter. I am not satisfied that RSL’s evidence was inconsistent with Agreed Facts 4, 5, 18 or 19.
Several of those aforementioned inconsistencies relate to circumstances of and incidental to the 2009 assault. When considering the significance of those inconsistencies, it is important to consider the complainant’s presentation and state of mind at the time of the 2009 assault, which must inform the reliability of his memory of that assault.
The complainant gave evidence that he was very drunk and may have consumed illicit substances prior to the 2009 assault.[576] This is consistent with what the accused told the police in his statement signed on 12 April 2009, namely, ‘As soon as I saw him it seemed as if he was off his head on drugs or alcohol as he was very aggressive’.[577]
[576] T 200.31-35.
[577] Exhibit P14 at p 2, noting the accused gave evidence denying the accused appeared intoxicated when he first knocked on his door, and said that his demeanour only changed once he was inside the home.
I have previously summarised TBL’s evidence as to the observations he made of RSL during the 2009 assault, being observations made solely from what he could hear during his phone calls with RSL at that time. I accept TBL’s evidence that the complainant sounded very upset and deflated, and overwhelmed by emotion, during those phone calls.
Notwithstanding TBL’s evidence that during some of those conversations, RSL did not sound intoxicated, and my earlier observations that there were times during the assault that he was able to act with some degree of clarity, I consider it likely that RSL was, at least to some extent, affected by alcohol, and possibly by illicit substances.
I am satisfied that at the time of the 2009 assault RSL was distraught, highly emotional and experiencing suicidal thoughts. His behaviour was erratic and inconsistent. I accept RSL’s evidence that after that incident, he sought and received therapy from a psychologist, Ms Newton, for the mental health issues he was suffering at the time of the 2009 assault.
RSL’s demeanour and conduct during the 2009 assault is consistent with his evidence as to the stated purpose of his visit, namely, to commit suicide and to extract a confession from the accused. I accept the complainant’s evidence that at the time he went to the accused’s home in February 2009, he intended to commit suicide in front of him, to show him how much he had ruined his life and to extract an acknowledgement from the accused to the effect he had ruined his life.
I am satisfied that RSL was emotionally disturbed at the time of the 2009 assault, such that his ability to accurately recall what occurred during the assault, whether when giving evidence at trial, or when giving evidence at the Disputed Facts Hearing, was likely significantly compromised.
In such circumstances, it is not unexpected that there were inconsistencies in the evidence RSL gave at trial relating to his recollection of and incidental to that assault, when compared to the evidence he gave about those same matters at the Disputed Facts Hearing, and when compared to the observations of the emergency responders who attended in response to the assault.[578]
[578] Noting, that save for those matters which are relevant to the determination of the charge, I have not made factual findings as to the circumstances of the 2009 assault.
When giving evidence at trial, the complainant was reluctant to acknowledge that he intended to stab the accused during the 2009 assault, notwithstanding he pleaded guilty to the offence as charged, namely aggravated causing harm with intent to cause harm. He also downplayed the extent to which he used violence (or aggression) against the accused during the course of the assault.
I accept RSL’s evidence that he did not go to the accused’s home at the time of the 2009 assault with the intention of harming the accused, nor was he after the accused’s money, and that his intention was to commit suicide in front of him. RSL said:[579]
[579] T 201.30-32.
I wasn’t going to use any violence on anything else but just seeing his face, it brought back everything …
It is clear, that during the incident, RSL snapped and intentionally caused various injuries to the accused, not only the stab wound to his thigh, but other cuts and bruises. I accept RSL’s evidence that when he realised the extent of what he had done, he panicked and immediately tried to stem the bleeding and call an ambulance.
It was my impression that RSL is still struggling to accept responsibility for his actions during the assault, both in terms of acknowledging his intention to harm the accused, and the resulting injuries caused.
However, RSL’s reluctance to fully acknowledge what he did to the accused at that time, is, in my view, inextricably linked with the reason why he attended at the accused’s house that night – namely he was seeking acknowledgement from the accused as to the damage the accused had caused to him, arising from the earlier abuse.
RSL initially denied being the perpetrator of the assault on the accused, both while on the phone to the 000 operator and to police at the scene and thereafter.[580] When asked why he had done so, RSL gave evidence that he was in a very bad state at the time, that he had lied initially to hide his embarrassment and then said it was probably because he was drunk and it was very early in the morning. He denied he had lied to wriggle his way out of the charge.
[580] The proven prior inconsistent statements identified at points 1 and 8 of the 1 October 2021 letter.
RSL gave evidence that he might have consumed illicit drugs prior to the 2009 assault. He agreed that when he spoke to the police immediately after the assault he had told them that he had been cold turkey for 12 days and did not smoke dope anymore. He said he had probably exaggerated that to police, as he felt like a failure when he did not achieve his goal of staying off drugs. [581]
[581] T 180.20-181.6 - the proven prior inconsistent statement identified at point 11 of the 1 October 2021 letter.
RSL gave evidence that at the time of the 2009 assault, he was living with his ‘grandfather’. After a lengthy period of cross-examination, he acknowledged that he had not told the police this in his February 2009 statement, rather he had told the police he had been ‘couch surfing’.[582] During that same line of cross-examination, it was put to RSL that he had not given any evidence at the Disputed Facts Hearing about his grandfather either.[583]
[582] The proven prior inconsistent statements identified at point 5 of the 1 October 2021 letter.
[583] T 165.21-166.11.
It was clarified in re-examination that the particular aspect of the evidence highlighted by defence counsel in that respect, related to the telephone call RSL claimed he had with BCW prior to meeting him outside the Lucky Horseshoe at Cheltenham, and was not relevant to the 2009 assault as such. RSL gave evidence at trial that he was at his grandfather’s house when he made the call. He confirmed that he was not asked, during the Disputed Facts Hearing, where he was at the time he made that phone call.
Counsel for the accused submitted that the way in which RSL dealt with the authorities immediately after the 2009 assault demonstrated he was capable of both the guile and cunning to invent the allegations, as part of a plan to extract money from BCW or to receive compensation.
As previously stated, I am satisfied that at the time of the 2009 assault RSL was extremely distressed and in a very heightened emotional state. He was experiencing suicidal thoughts. He had previously been drinking and probably had also consumed illicit substances. What he said at that time, and his memory thereafter of what he said or did at the time, must be considered in that context.
At trial, it was clear RSL was struggling to explain why he had said certain things at the Disputed Facts Hearing or to police immediately after the assault, which did not accord with his memory of what had actually happened. I am satisfied that notwithstanding his difficulty in providing reasonable explanations for some of those inconsistencies, RSL was endeavouring to tell the truth at trial.
After carefully considering all of the evidence, the proven prior inconsistencies in RSL’s evidence as identified above, do not cause me to otherwise have a reasonable doubt about the reliability and credibility of RSL’s evidence on the critical issue, namely his allegations that he was repeatedly abused by BCW when he was a child.
There were inconsistencies in the evidence RSL gave at trial, and the evidence he gave at the Disputed Facts Hearing, relating to matters other than the 2009 assault, namely:
·The evidence RSL gave at trial that he recorded a telephone conversation he claimed to have had with BCW before the Lucky Horseshoe incident.[584]
[584] See discussion at paragraphs 481-487 herein - prior inconsistent statements at points 4 and 6 of the 1 October 2021 letter.
·The evidence RSL gave at trial about the conversation he had with the accused outside of the Lucky Horseshoe.[585]
[585] See discussion at paragraphs 491-493 herein - prior inconsistent statement at point 21 of the 1 October 2021 letter.
·The evidence RSL gave as to the number of occasions he had stayed overnight with the accused.[586]
[586] See discussion at paragraphs 444-450 herein - prior inconsistent statement at point 7 of the 1 October 2021 letter.
·The evidence RSL gave at trial that the first occasion of abuse had occurred either at lunch or recess time, whereas he gave evidence at the Disputed Facts Hearing it had occurred during lunch.
·The evidence RSL gave at trial that the only occasion the accused had picked him up when he wagging school was on the occasion of their first meeting.[587] RSL agreed that at the Disputed Facts Hearing he gave the following evidence:[588]
[587] T 184.1-16; 30-33.
[588] T 185.1-5; T 186.9-10 - prior inconsistent statement identified at point 13 in the 1 October 2021 letter.
QYou talked to us in the context of going to these locations in the context of being picked up from your home.
AWagging school.
QAnd being taken to these places for day visits and then you would return later in the day to your mother’s home.
AYes
·The whole of the transcript of the Disputed Facts Hearing was not in evidence. On its face, there is an inconsistency in this evidence, and RSL’s evidence at trial. However, RSL’s answer ‘wagging school’ appears to be at odds with what he (must have) told the court earlier, thus prompting the question, namely that that he had gone to the various locations, where he had been abused by the accused, after being picked up from his home, being consistent with the evidence RSL gave at trial.
·RSL explained at trial that he had no memory of being taken to places by the accused and abused during the week, and that he remembered him taking him away on the weekends. He repeated that at the time of the Disputed Facts Hearing he was heavily medicated, and not in a good headspace. He said that he may have misunderstood the question or misheard it.[589]
[589] T 186.25-32.
·The evidence RSL gave at trial that during the occasion of the first abuse at the school, the accused had masturbated him over the top of his clothing, had not pulled his pants down and he had not gotten an erection.[590]
[590] See discussion at paragraphs 229-231 herein - prior inconsistent statements identified at points 14, 15 and 16 of the 1 October 2021 letter.
The complainant gave evidence at trial, which was not challenged, that during the Disputed Facts Hearing he was heavily medicated and at one stage fell asleep. This is every possibility therefore that the evidence he gave during that hearing was inaccurate. In such circumstances, it is not unexpected that the evidence he gave at trial in 2021 may differ, in certain aspects, from the evidence he gave on those topics, some eleven years earlier, during that hearing.
The most important of these inconsistencies are those relating to the circumstances of the first occasion of abuse at the school. I accept the complainant’s explanation that he was confused when he gave evidence at the Disputed Facts Hearing as to that occasion and that he mistakenly gave evidence as to what occurred during the second occasion he was abused at the school. Further, I accept RSL’s evidence at trial that during the second occasion of abuse at school, rather than pulling his pants down, the accused had put his hand down his pants.[591]
[591] T 194.2-195.15; T 199.14-200.4.
RSL gave evidence that he had a clear recollection of both the first and second incidents at the school and said he was not mixing them up.[592] Later in cross-examination, RSL agreed that when he was proofed by the prosecutor in the presence of Det Trimboli on 2 March 2021, just prior to giving evidence at the trial, he had said he had only a faint recollection of being touched by the accused, at school, in the area between his scrotum and anus.[593]
[592] T 197.8-17.
[593] T 256.19-24; T 247.5-2; noting this is the prior inconsistent statement identified at point 25 of the 1 October 2021 letter.
What RSL said during that proofing about his recollection of the incidents of abuse at school being faint, related to the specific issue of whether, during either such occasion, the accused had touched him in the in the area between his scrotum and anus. As such, insofar as there is any inconsistency in the evidence RSL gave at trial, and what he said during that proofing, it does not cause me to otherwise doubt the reliability or credibility of the evidence RSL gave at trial about his abuse at the school (or more generally his abuse by BCW).
I have very carefully analysed the evidence to determine whether it is a reasonable possibility that RSL has concocted the allegations in order to extract money from the accused. As previously stated, I reject the accused’s evidence about the alleged $10,000 blackmail. I am satisfied beyond reasonable doubt this simply did not occur. There was no evidence that RSL had heard rumours, before the 2009 assault, that the accused was a paedophile, and thus an ‘easy target’. The fact RSL admitted to holding suspicions, at some time, that the accused was abusing BL, was, in my view, informed by the fact that RSL was, himself, a victim of abuse by BCW.
I am satisfied that the accused gave RSL money from time to time, both as a child and as an adult. When RSL was a child, the accused gave him money in exchange for doing jobs such as washing the accused’s car and helping him clean out the art storeroom. As an adult, the accused gave RSL small amounts of money on occasions, including on the occasion of the meeting outside the Lucky Horseshoe and during the 2009 assault. As to the former, I accept RSL’s evidence that the accused offered to give him money, after RSL called the accused and threatened to go to the police about the offending. As to the latter, I accept RSL’s evidence that the accused offered to give him money during the 2009 assault.[594] I reject the accused’s evidence that RSL took money from him during that assault.
[594] T 212.5-19.
I am conscious that RSL admitted to having committed a ‘break and enter’ as a child in order to obtain money, demonstrating that, at last in the past, he has been dishonest. RSL was not cross-examined about having committed any other offences of dishonesty in the approximately 30 years since then.
I am further conscious of the fact that CJL has previously received compensation for being a victim of sexual abuse.
Notwithstanding these matters, after a very careful scrutiny of the evidence, I am satisfied that RSL is not lying about the abuse, for the purposes of financial gain, or indeed for any other reason. After having had the opportunity to carefully watch and listen to RSL give evidence over several days, I am satisfied that he lacks the intelligence, guile, cunning and mental agility to have made up, then maintained, false allegations against BCW.
I am satisfied that RSL is not mistaken about the abuse or that he imagined the abuse, such that I am satisfied his recollection of being abused by BCW is reliable.
As previously stated, RSL’s evidence was compelling. He had esoteric knowledge relating to matters personal to the accused that he could only have known as a result of the abuse. Many crucial aspects of his evidence were corroborated by other evidence, including his identification of the house at [number] Henley Beach Road as being a location of the abuse, his accurate recollection and knowledge that DAR lived in a house at (or near) Old Reynella Village and of her both being in a relationship with, and living with Tom, at a house, near Morphett Vale, with a large garage, of the accused’s father’s illness and of his mother’s role as the father’s carer.
I am satisfied this knowledge was gleaned by RSL during the relationship he had with the accused for approximately two years, commencing in 1994, during which BCW built up RSL’s trust, and the trust and confidence of his mother, and then used that trust to abuse RSL both at the school, and at the other locations identified by RSL.
After carefully scrutinising all of the evidence, I accept RSL’s evidence that BCW abused RSL in the manner as alleged, namely on two occasions at the school in 1994, on multiple occasions at the locations where he was taken by BCW on Saturday afternoons and, occasionally overnight, and on one occasion in a car near Flinders University. I accept RSL’s evidence that the offending outside of school started in late 1994 or early 1995, and had stopped by the time he moved in with Susan, when he was aged 16.
Findings – Elements of the Offence
I am satisfied and find beyond reasonable doubt, that during the period of the alleged offending, RSL was a child, aged under 17, and BCW was an adult.
I accept RSL’s evidence that he first met the accused when he was in Year 8 at the school, in 1994, when RSL was off school grounds, wagging school, and the accused drove up to him, and offered him a lift back to the school. I accept RSL’s evidence, that thereafter BCW took a special interest in him, notwithstanding he was not in any of the classes he taught, nor in his care group.
I accept RSL’s evidence that BCW allowed him to use his account to purchase items from the canteen, asked him to collect cans and bottles in the yard, and to help him clean up the art storeroom. I accept RSL’s evidence that, in addition, BCW cultivated a relationship with him, and his mother, outside of school, and that for a period of approximately six months, BCW regularly attended RSL’s home, on Saturday mornings, and paid RSL to wash his car.
I further accept RSL’s evidence that, having earned his mother’s trust, BCW then began taking RSL out on Saturday afternoons, including to the football, and to visit his parents and the other locations described by RSL. I accept RSL’s evidence that on some of those occasions, he stayed overnight with the accused, including at the house at Henley Beach and the accused’s mother’s house.
I accept RSL’s evidence that he continued to see BCW regularly, outside of school, during 1995 and into 1996, and reject BCW’s evidence that his out of school involvement with RSL was confined to a short period during Term 4 of 1994.
I am satisfied and find beyond reasonable doubt, that during the alleged period of the offending, BCW knowingly maintained a relationship with RSL. That relationship went beyond that of an ordinary student/teacher relationship, as evidenced by the particular, special interest BCW took in RSL, despite him not being one of his many students, nor in his care group, and as further evidenced by the fact that BCW remembered and resumed his acquaintance with RSL when they re-connected again, many years later, when RSL was an adult.
The final element the prosecution must prove beyond reasonable doubt is that during the course of that relationship, BCW engaged in two or more unlawful sexual acts with RSL.
An unlawful sexual act is an act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a ‘sexual offence’. I consider it therefore must follow that the prosecution must prove beyond reasonable doubt that there were two or more occasions on which the accused engaged in unlawful sexual acts with RSL, during the course of the relationship.
The Information particularises certain conduct said to constitute the unlawful sexual acts. RSL gave evidence about being sexually abused by BCW on multiple occasions. As to many of those occasions, RSL gave evidence, which I accept, that BCW’s conduct included conduct described in more than one of the particulars as listed on the Information.
I accept RSL’s evidence that on the first occasion BCW abused him at the school, in the storeroom attached to the art room, in 1994, RSL was standing on a small ladder, with the accused behind him. I accept RSL’s evidence that he felt the accused’s nose and mouth between his bottom cheeks,[595] and that at the same time the accused started to rub his hand over his crotch, over the top of his clothing.[596]
[595] T 35.19-20; Particular (c) on the Information.
[596] T 35.24-30; Particular (d) on the Information.
I am satisfied that when the accused did these things, he committed an unlawful sexual act, namely the offence of indecent assault, in that he intentionally took steps to apply force to RSL, at a time when RSL was under the age of 17 years and in circumstances which were indecent having regard to reasonable contemporary standards.
I accept RSL’s evidence that the second time BCW abused him at the school, was in 1994, in the storeroom attached to the art room. I accept RSL’s evidence that BCW spread his bottom cheeks with both of his hands, and then masturbated him underneath his clothing.[597] I am satisfied that when the accused did these things, he committed an unlawful sexual act, namely the offence of indecent assault, in that he intentionally took steps to apply force to RSL, at a time when RSL was under the age of 17 years and in circumstances which were indecent having regard to reasonable contemporary standards.
[597] T 37.11-22; particulars (c) and (d) on the Information.
I accept RSL’s evidence that commencing in either late 1994 or early 1995, the accused took him to a house he identified as being at Old Reynella Village, which he understood was DAR’s house and sexually abused him there.
Although RSL’s evidence-in-chief and in cross-examination was inconsistent, I am satisfied that BCW did sexually abuse RSL at this location and that he did so on approximately five occasions.
As to the nature of that abuse, RSL was asked specifically if he could recall what occurred on the first occasion he was abused by BCW at the house at Old Reynella Village. RSL gave evidence, in response, which I accept, that BCW was ‘biting on my nipples’.[598] He said that after BCW took his clothes off, he pushed in between his penis and buttocks, squeezed his penis and masturbated him.[599] He went on to say that the accused would ‘flip me, like, it was just like I was a 50c coin that he could flip me like that, just like that, I was flipped over and then he had his way with me by rooting me like I was trash’.[600]
[598] T 47.22-23; particular (b) on the Information.
[599] T 47.28-32; T 48.2-6; particulars (c) and (d) on the Information.
[600] T 47.35-48.1.
I have carefully considered RSL’s evidence outlined above. I accept that evidence. I am satisfied that by this evidence, RSL was describing the first time he was abused by BCW at the house at Old Reynella Village.
RSL gave evidence that when he was abused by BCW at the house at Old Reynella, it ‘would always be the same thing’.[601] He gave evidence of a routine whereby the accused would undress him, lie him down on a mattress on the ground, put him in a violent bear hug and then start abusing him. He said the accused would masturbate him and he would ejaculate. The accused would then rub the semen all over his body, then flip him over, and thrust his penis into his buttocks. He said ‘he would thrust his penis, as big as it was, in and out, in and out, as far as he could’[602] and that the tip of BCW’s penis penetrated his anus.[603]
[601] T 46.37.
[602] T 50.17-18.
[603] T 50.22-23, particular (f) on the Information.
I am satisfied that on each of the approximately five occasions the accused abused BCW at the house at Old Reynella, he committed an unlawful sexual act. I am satisfied that there were occasions as described by RSL that when BCW was thrusting his penis between his buttocks, the tip of his penis penetrated RSL’s anus, such that the accused committed the offence of unlawful sexual intercourse.
However if RSL is mistaken about being anally penetrated on each such occasion BCW thrust his penis between his buttocks during the abuse occasioned on him at Old Reynella Village, in that because of the size of his penis, the accused was not always successful in penetrating RSL’s anus,[604] I am satisfied, in any event, that on those occasions, the accused committed an unlawful sexual act, namely the offence of indecent assault.
[604] Particular (e) on the Information.
RSL gave evidence, which I accept, that on the day he went to Tom and DAR’s house to move bricks with BCW, the accused undressed him and held him in a bear hug so that he could not move. He said the accused masturbated him, and ejaculated on him:[605]
[605] T 63.20-25.
… and then he turned me over and he started raping me, thrusting his penis in and out of my, the tip of his penis penetrated my buttocks, and then he’d just come on, like come on my bottom cheeks and then he’d wipe himself down and then he would chuck me a rag, like I’m a piece of shit, I’m scum.
I accept this evidence. By this evidence, I am satisfied that RSL described an occasion when the accused thrust his penis between RSL’s buttocks to the point of ejaculation.[606] However, without further evidence, given the size of BCW’s penis, I cannot be satisfied that what RSL described, by this evidence, included anal penetration. I am therefore satisfied that on this occasion, the accused committed the offence of indecent assault in that he intentionally took steps to apply force to RSL, at a time when he was under the age of 17 years and in circumstances which were indecent having regard to reasonable contemporary standards.
[606] Particular (e) on the Information.
When asked how many times BCW took him to Tom and DAR’s house and abused him in that way, RSL said ‘I’d say a couple of times’.[607] I accept that evidence. I am satisfied therefore that there was more than one occasion when BCW committed an unlawful sexual act against RSL at Tom and DAR’s house, being the offence of indecent assault, although I cannot be satisfied this occurred more than twice.
[607] T 64.2.
RSL gave evidence, which I accept, that on occasions when he was abused by BCW at BCW’s mother’s house, BCW would stick his tongue down his throat.[608]
[608] T 54.13, particular (a) on the Information.
I accept RSL’s evidence and am satisfied beyond reasonable doubt, that he was abused by BCW at BCW’s mother’s house, on more than one occasion and on approximately five occasions. I further accept RSL’s evidence that on those occasions the same things occurred, and that after undressing RSL, masturbating him and ejaculating on him, the accused would throw him over to the side and then he would just start ‘thrusting’ into him.[609]
[609] T 58.14.
I am satisfied that by this evidence, RSL was describing the accused thrusting his penis between his buttocks, to the point of ejaculation, on more than one occasion.[610] However, having regard to the evidence about the size of BCW’s penis, and the absence of any further evidence from RSL that on these occasions, the accused’s penis was, in fact, inserted into RSL’s anus, I cannot be satisfied of the same.
[610] Particular (e) on the Information.
I am therefore satisfied that on these occasions, the accused committed the offence of indecent assault in that he intentionally took steps to apply force to RSL, at a time when RSL was under the age of 17 years and in circumstances which were indecent having regard to reasonable contemporary standards.
RSL gave evidence, which I accept, that most of the abuse occurred at the house at Henley Beach. RSL was asked whether there was anything different about this abuse, from that he had suffered at the other houses. He said ‘No, there were no differences, it was always the same thing, always, every time ...’.[611]
[611] T 61.29-30.
RSL went onto say that if anything changed, it was that the accused would ‘try’ to stick his tongue down his throat more and he described, in compelling terms, biting his lips and teeth down as hard as he could so BCW could not stick his tongue down his throat.[612]
[612] T 61.31-33; particular (a) on the Information, but by this evidence RSL is describing the accused ‘attempting’ to do so.
Although RSL did not give any further detailed evidence describing the abuse at Henley Beach, when describing the abuse at Old Reynella Village, he found it very hard to differentiate between the abuse he had suffered at those locations.
RSL described the accused having anally penetrated him at the house at Old Reynella.[613] While it is likely that when the accused went through the same routine at the house at Henley Beach, that there were times the tip of his penis penetrated RSL’s anus, I cannot be satisfied of that beyond reasonable doubt. While I accept RSL’s evidence that the abuse was the same in terms of its routine, in the absence of further evidence, having regard to the size of BCW’s penis, I can only be satisfied beyond reasonable doubt that, at the Henley Beach house, in addition to masturbating RSL and attempting to kiss him on the lips, the accused thrust his penis between RSL’s buttocks, usually to the point of ejaculation.
[613] Being the conclusion of the routine which included masturbating him.
I am satisfied beyond reasonable doubt, that on more than one occasion, BCW committed an unlawful sexual act, at the house at Henley Beach, namely the offence of indecent assault, in that he intentionally took steps to apply force to RSL, at a time when RSL was under the age of 17 years and in circumstances which were indecent having regard to reasonable contemporary standards.
I accept RSL’s evidence that there was one occasion when he was in a car with the accused near Flinders University, when the accused put a condom on him and started masturbating him.[614] I accept RSL’s evidence that this was either in early 1995 or early 1996.
[614] T 64.15-24; particular (d) on the Information.
I am satisfied beyond reasonable doubt, that when BCW did this, he committed an unlawful sexual act, namely the offence of indecent assault, in that he intentionally took steps to apply force to RSL, at a time when he was under the age of 17 years and in circumstances which were indecent having regard to reasonable contemporary standards.
I am satisfied and find beyond reasonable doubt, that during the course of that relationship, BCW engaged in two or more unlawful sexual acts with RSL.
Summary
I find beyond reasonable doubt that:
1.The accused knowingly maintained a relationship with RSL.
2.During the course of that relationship, the accused engaged in two or more unlawful sexual acts with RSL.
3.At the time the accused engaged in two or more unlawful sexual acts with RSL, RSL was a child.
4.At the time the accused engaged in two or more unlawful sexual acts with RSL, the accused was an adult.
I exclude, as it not being a reasonable possibility, that the accused is innocent of the offending.
Verdict
I find the accused guilty of the charge.
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