R v BCW

[2021] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v BCW

Criminal Trial by Judge Alone

[2021] SADC 46

Reasons for the Verdict of her Honour Judge Fuller 

30 April 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

Accused uncle of complainant - alleged to have maintained unlawful sexual relationship with complainant from 1987 to 1990 - complainant aged approximately 6 to 10 during charged period - initial complaint to girlfriend when complainant in early twenties - reported to police in 2017 - accused stayed at complainant's family home on occasions during relevant period - complainant gave evidence of precise location and timing of alleged offending and reason for cessation of offending - evidence of parents of complainant raised doubt about complainant's evidence regarding location of alleged offending in late 1988/1989 - accused denied allegations in record of interview - complainant gave evidence that at one stage he thought the alleged offending was a dream.

Verdict - not guilty.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 34M(2), s 34M(4), s 34CB, referred to.
R v Mann (2020) 135 SASR 457; R v G [2015] SASC 186; Azzopardi v R (2001) 205 CLR 60; R v Weetra (2010) 108 SASR 232; R v T, WA (2014) 118 SASR 382; De SA v The Queen [2021] SASCFC 22; R v M, RB [2020] SADC 173, considered.

R v BCW
[2021] SADC 46

1. The accused was arraigned before me on the following Information:

   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 1^st day of January 1987 and the 31^st day of December 1990, at St Agnes, maintained an unlawful sexual relationship with JW, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards JW, namely:

   (a) kissing and/or licking him on the neck and/or ear on more than one occasion;

   (b) biting him on the ear on more than one occasion;

   (c) touching his buttocks on more than one occasion;

   (d) touching his genitals on more than one occasion; and

   (e) thrusting BCW’s penis between his buttocks on more than one occasion, usually to the point of ejaculation.

   This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

   The plea

2. The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.

   Elements of the offence

3. The elements of an offence under s 50 Criminal Law Consolidation Act 1935 (CLCA) are as follows:

   1.The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts.

   2. Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant.

   3. At that time the accused committed the unlawful sexual acts he was an adult.

   4. At the time the accused committed the unlawful sexual acts the complainant was a child.

4. An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with a child over any period.

5. An unlawful sexual act is any act that constitutes, or would constitute, (if the time and place at which the act took place was sufficiently particularised) a sexual offence.

6. The prosecution case is that each of the unlawful sexual acts particularised in the Information is an indecent assault. An indecent assault is an assault accompanied by, or committed in, circumstances of indecency.

7. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. If the touching the subject of each of the particulars took place in the way alleged by the complainant, this element will be established.

8. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent.

9. It was not disputed that if I were to find proved any of the acts particularised in the charge, I would find proved that the particular act was committed in circumstances of indecency.

10. As the trier of fact, I am not required to be satisfied of the particulars of any unlawful sexual act of which I would have to be satisfied if the act were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts.

11. I cannot return a verdict of guilty unless I am satisfied beyond reasonable doubt that two or more unlawful sexual acts occurred in the context of the ongoing relationship between the accused and the complainant. 

12. The category of relationships falling within s 50 CLCA can never be closed because relationships vary widely, and the very concept evolves over time with societal changes.[1] The wide range of social and interpersonal relationships falling within the term include:

    [1] R v Mann (2020) 135 SASR 457 at [26].

    ·Familial, legal and de-facto relationships;

    ·Residential relationships;

    ·Working relationships;

    ·Sporting and recreational relationships; and

    ·Professional relationships.

    Overview of the prosecution case

13. The complainant, JW, was the nephew of the accused. JW was born on 30 November 1980. As a child, JW lived with his mother and father, younger brother and sister in their family home at St Agnes. The accused was brother to JW’s mother. Until the beginning of 1989, the accused lived in the Riverland where he was employed as a teacher at a High School. From 26 January 1989, the accused was employed as a teacher at a western suburbs school.

14. When the accused lived in the Riverland, he would come to Adelaide on some weekends and during school holidays and, on occasion, stay with JW’s family at their home in St Agnes. When he stayed overnight, he would sleep on a sofa-bed mattress on the lounge room floor.

15. When the accused moved to Adelaide to commence his teaching position at a western suburbs school, there was a period during which he had no accommodation and, as a result, he stayed for a number of months at JW’s home in St Agnes. JW’s recollection was that, when the accused stayed for an extended period, he slept on the sofa-bed mattress on the lounge room floor. JW’s parents’ recollection was that the accused slept in the family room.

16. On the prosecution case, the accused performed sexual acts upon JW on more than 5 but less than 10 occasions whilst he was staying at JW’s family home. Those sexual acts were always performed on the mattress in the lounge room and always in the morning when no one else was awake and when JW’s father was working and not home.

17. JW could not recall the first or the last occasion but was able to recall two occasions in some detail. The first occasion he could recall occurred when he woke in the morning between 6.30am and 7.30am. He went to the bathroom and when he emerged, he saw the accused on the mattress in the lounge room. The accused ushered JW over and asked him to spend time with him and have ‘special cuddles’. JW lay down on the mattress with his back to the accused who was ‘spooning’ him. Thereafter, the accused rubbed JW’s back over his pyjamas, rubbed his legs and bottom and then put his hand under JW’s pyjama pants but over his underwear and touched his penis, testicles, crotch and backside. JW could hear the accused breathing in his ear and kissing and licking his neck and nibbling his right ear. JW could feel the accused’s penis thrusting up against his bottom until he ejaculated on the back of JW’s pyjama pants. The accused told him he was a good boy and that they had special cuddles.

18. JW said that the other occasions of sexual abuse occurred in a similar way. On the second occasion that JW could recall in detail, the accused was standing in front of the fridge in his underwear and led JW back to the mattress. The other occasions which JW could recall ended with the accused asking him to get his brother, telling him that his brother should not miss out on special time with him.

19. JW did not understand what sex was at the time of the abuse and did not know why the back of his pyjama pants were wet and sticky. JW would try to avoid the abuse by staying in his room after he had woken up and not going to the toilet. This resulted in him wetting his bed when he was 8 or 9 years of age.

20. The abuse stopped when JW was 9 or 10 years of age. At this time, the accused was living in his own home in Adelaide and had no reason to stay over.

21. The first person to whom JW disclosed the abuse was his girlfriend RB (nee RK). In his late teenage years, after his behaviour had become erratic, he spoke to her in person about the abuse as he thought his relationship with RB was going to end. RB recalled JW writing her a letter that he left on the windscreen of her car, in which he disclosed that he had been sexually abused by the accused. She then spoke to him about the allegation. This occurred shortly before their relationship ended.

22. JW made a complaint to police in December 2017.

23. The accused was interviewed by police on 19 December 2018. He denied the allegations and said that JW’s parents came to see him many years before, alleging that he had indecently assaulted JW. The accused told them that he had never done anything like that to JW. The accused said he stayed at JW’s family home when he transferred back to the western suburbs school and had nowhere to stay. He thought he stayed in one of the bedrooms but said it could have been in the family room. The accused said that once or twice he had woken up to find that JW was lying up against his back on the bed and he asked him what he was doing and told him to get back to his own bed. On occasions, he would find JW’s brother CW lying behind him. When the allegations of sexual abuse were put to him, the accused said, ‘that’s a load of rubbish’.

    Issues in dispute

24. In this matter, the accused did not dispute that, as uncle to JW, he was in a familial relationship with JW. Nor did the accused dispute that, at the time particularised in the Information he was an adult, and JW was a child. The accused did not dispute that, if they were proved to have occurred, the sexual acts alleged were unlawful. The central, and indeed, only issue in dispute was whether the unlawful sexual acts particularised in the Information were in fact committed by the accused.

    General directions

25. The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[2] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.

    [2]     R v G [2015] SASC 186.

26. The general directions were summarised by Lovell J in R v G. They are as follows:

    As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

    The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.

    The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.

    The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.

    I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.

    If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.

27. The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[3] The accused’s record of interview, and any admissions I find contained therein, is evidence in the case that I can take into account in determining whether the charge has been proved beyond reasonable doubt.

    [3]     Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].

28. I must assess each witness as to truthfulness and reliability. I must determine whether I can rely upon the evidence the witness gives. I can reject or accept all or a part of the witness’ evidence.

29. I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not be influenced by public opinion in relation to the matter.

    The evidence

30. I turn now to examine the evidence in more detail.

31. The prosecution called 6 witnesses to give oral evidence: the complainant, JW, his mother MW, his father RW, JW’s former girlfriend RB, the investigating officer, Leanne Trimboli and one of the police officers who took the initial report from JW, Amanda Casey.

    The complainant’s evidence

32. JW was 40 years of age when he gave evidence. He was born on 30 November 1980. He said he was one of three children. He had a younger brother, CW and younger sister, TW. CW was born on 24 March 1982 and TW on 26 March 1985. JW’s parents, MW and RW live at St Agnes in the house in which JW grew up.[4]

    [4]     T 107-108.

33. JW said that the accused was his uncle on his mother’s side and was one of his mother’s brothers. She came from a family of 13 children. During JW’s childhood the accused lived in the Riverland and was a teacher at a High School. The accused moved to Adelaide when JW was around 5 or 6 years of age in the early to mid-1980s. The accused moved to Adelaide when he obtained a teaching position at a western suburbs school.[5]

    [5]     T 109, 1-29.

34. When the accused lived in the Riverland he would come and stay at JW’s family home during school holidays or when he had time off. Upon the accused moving to Adelaide, he stayed at JW’s family home for a period of time while the Department of Education arranged accommodation for him. [6]

    [6]     T 109, 30-38; T 110, 1-13.

35. JW said that he was sexually abused by the accused between the ages of 6 and 9 or 10 years. The occasions of sexual abuse all occurred when the accused was staying at the family home at St Agnes. JW said that there were more than 5 and up to 10 occasions of sexual abuse.

36. The sexual abuse took place in the lounge room where the accused would sleep on a mattress removed from a sofa bed and placed on the floor.[7] JW drew a diagram of the layout of the St Agnes home which set out the various rooms of the house, including the lounge room. He drew a picture of the location of the mattress upon which the accused had slept.[8]

    [7]     T 110, 15-32.

    [8]     Ex P1, T 110, 33-38; T 111-112.

37. Photographs of the exterior and interior of the St Agnes home were tendered.[9] JW explained that the furniture in some rooms as shown in the photographs had changed.[10]

    [9]     Ex P2.

    [10]   T 113-114.

38. JW said that the mattress that the accused would sleep on was roughly in the location of the coffee table show in the photographs of the lounge room.[11] JW said that the mattress was a small double, as it came from a two-seater sofa bed.[12]

    [11]   T 115, 3-10.

    [12]   T 115, 12-15.

39. JW gave evidence that his brother CW suffered from Down Syndrome and had reduced functioning of his lungs. He required surgery and regularly had chest infections, ear problems and croup. His mother often had to get CW up in order to use a humidifier. This occurred when CW was coughing and normally before JW and CW went to bed.[13] JW shared a bedroom with CW until he was 15 years of age. [14]

    [13]   T 116, 11-28.

    [14]   T 117, 17-19.

40. JW’s father, KW worked at Wingfield. He was a shift worker and worked either night, day or afternoon shifts. When KW worked night shift he would arrive home around 8.00am – 8.30am, but there were occasions when they would have to go out to the car to wake him up because he had fallen asleep in the car.[15] When KW worked a day shift, he would leave home around 5.30am - 6.00am.[16]

    [15]   T 117, 2-12.

    [16]   T 117, 26-29.

41. JW said that he had a specific recollection of one incident during which the accused sexually abused him. He said he was about 6 years old.[17] The incident occurred in the morning[18]between 6.30 am and 7.30 am.[19] He went to the bathroom and as he came out, he saw the accused on the mattress in the lounge room. The accused gestured with his hands to JW to come towards him. He said, ‘what are you doing awake this early, you should be asleep?’.[20]

    [17]   T117, 30-36.

    [18]   T 117, 38.

    [19]   T 118, 4.

    [20]   T 118, 13-22.

42. The accused ushered and invited JW to come towards him and JW approached the accused, who was lying down on the mattress on his left side facing JW. The accused said, ‘you shouldn’t be awake, it’s early’ and then said, ‘you should come and spend time with me’.[21]

    [21]   T 118, 24-33.

43. JW stood between the kitchen and the lounge listening to the accused and the accused then said, ‘what are you doing awake’, and, ‘you do not want to wake your mum up’. The accused then pulled the blanket back and suggested that JW get on the mattress with him and have ‘special cuddles’ and time together alone. The accused told JW, ‘we can have special cuddles’. JW knelt down and laid on the mattress and the accused then put the covers back over him.[22]

    [22]   T 119, 12-36.

44. The accused was on his left side and JW was on his left side looking back down the kitchen. The accused was spooning him.[23] JW then described what the accused did next:

    [23]   T 120, 1-4.

    …after he had pulled the covers over us he then started lightly rubbing up my back over the top of my pyjamas, I had pyjama pants and jocks on and a top and he was rubbing my back and down my legs and then up towards my bottom and again just around my back and legs.[24]

    [24]   T 120, 6-11.

45. JW believed that the accused was only wearing jocks or underwear. The rubbing was initially over the top of JW’s pyjamas. [25] JW said that this changed:

    [25]   T 120, 19-22, 30-32.

    When his hand went from over the top of my clothing to under he was touching my penis and my testicles and my crotch and backside through – underneath my pyjama pants but on top of my jocks or underwear.[26]

    [26]   T 120, 34-37.

1. JW then gave the following evidence:

   I remember his breathing was – I could hear him breathing in my ear and telling me that it was fun and that it was going to be good and that we were having special cuddles and a special time together and it was just us. And the rubbing of my genitals continued and as he got more aroused he was also kissing and licking my neck (DEMONSTRATES) and I remember him heavy breathing and biting, like nibbling on my ear, my right ear. And that continued – I don’t know for how long but as he got more aroused I could feel his penis pushing up against my backside, my bottom, and as he continued to be aroused he was pulling me in towards him, closer, and the way in which he was thrusting his crotch, his penis and that area against mine got more aggressive and faster. And that – I don’t know about time that that went on but the rubbing and everything got faster and more aggressive, pulling me in, and the talking and breathing in my ear, as he was more aroused, continued. And he had put his right leg, like, over my legs (DEMONSTRATES) to pull me in tighter. And that occurred as he was getting more aroused with what was happening. That continued until he – what I now know is that he ejaculated on my back, on my pyjamas, around the lower back bottom area (INDICATES). And he then pulled me in while we were close, but I remember feeling his body relax after he had ejaculated on the back of my pyjama pants. And then we laid there for what I remember to be a short time. He told me that I did – that was fun and I did – I was good, I was a good boy, we had special cuddles. And then he told me that I better go back to bed and I was to go back to sleep or to wait until mum had woke me up because I was up early and I shouldn’t have been. And then, on the way – on me moving away said that it was our special cuddle and it was our special time and if – it was just for us and that I was special because it was for me and him and that he would be upset if other people knew or it might have to stop. I then left and went back to my bedroom and that was what I remember from that event.[27]

   [27]   T 121, 2-38; T 122, 1-2.

2. JW said he felt confused and that it felt weird, and he did not know how to make sense of it. He said that in an odd way he felt special and privileged and that he was a good boy and was doing the right thing.[28]JW said that the accused portrayed himself as the joker and fun uncle who was not tied down with children and could do what he wanted.[29] JW said that, of all his extended family, he probably saw the accused more because he would come and visit or they would visit him when he was living in the Riverland.[30]

   [28]   T 122, 8-15.

   [29]   T 122, 19-22.

   [30]   T 123, 13-17.

3. JW said that much of the physical interaction and sexual abuse occurred in a similar way. However, he recalled a few occasions which had ‘different beginnings and different ends’.[31] One of the occasions that he could recall occurred when he went to the toilet in the morning and was startled by the accused standing in front of the fridge in his underwear. Instead of ushering JW onto the mattress towards him, the accused talked to him from the kitchen and led him back to the lounge room and onto the mattress.[32]

   [31]   T 123, 34-37.

   [32]   T 123, 37-38; T 124, 1-10.

4. JW said this occasion of abuse took place after the first one he was able to describe and then gave the following account:

   Yeah, the physical acts, walking to the lounge room and getting under the quilt on the mattress. And the touching and the kissing on the neck, the nibbling on my ear and then the pulling in tighter and his right leg going over my body, or over my legs. And then the sexual acts; the thrusting of his penis into the back of my pyjama pants and to my bottom and continuing until he, again, had finished, ejaculated on the back of my pants. And then the hug was the same and the words of ‘Did good’ and the reassurance, that it was special and that it was between us.[33]

   [33]   T 124, 26-36.

5. The other occasions which JW could recall involved the accused asking him to get his brother and saying that, ‘he shouldn’t miss out on special time as well, and that he was special’.[34] JW then went back to his room and woke his brother up and ushered him towards the door.[35] The two occasions which JW was able to describe in detail did not end with the accused asking JW to send in his brother.[36]

   [34]   T 124, 37-38; T 125, 1.

   [35]   T 125, 1-3.

   [36]   T 168, 1-8.

6. JW said that when the abuse occurred, he was at an age when he did not know what sex was and he could not understand why the back of his pyjama pants was wet and sticky. He realised it was different from wetting his pants as it smelt different and was sticky.[37]

   [37]   T 125, 15-21.

7. JW said that in order to avoid the abuse he would stay in his room after he had woken up and even if he needed to go to the toilet. This resulted in him wetting his pants at an age that would not have been considered ‘normal or regular’.[38] JW said this happened when he was 8 and 9 years old:

   [38]   T 125, 22-27.

   …so I would wet my pants or I would wet the bed and any type of avoidance that I could. And I don’t know – but I couldn’t understand why but they were the reasons – or they were the outcome that I presented to myself was stay in your room, wet your pants and then would only get up or leave my room if I heard other people being up, which at the time would have been mum because dad is not home, and [CW] is in the room with me.[39]

   [39]   T 125, 30-38.

8. JW said that all the occasions of abuse happened in the morning around the same time and always on the mattress in the lounge room. In relation to the other incidents that he was unable to recall in detail, he could not say in what year they happened and could not say whether they occurred on a weekend or a weekday.[40] JW was 9 or 10 when the abuse stopped. At that time, the accused had moved back to Adelaide full time and was in his own home and had no reason to stay with JW’s family.[41] JW could not recall the last occasion of abuse.[42]

   [40]   T 167, 4-26.

   [41]   T 126, 15-33.

   [42]   T 127, 5-7.

9. JW estimated that there were more than 5 but less than 10 occasions upon which he was sexually abused by the accused. He said it occurred ‘between 86-ish to ’89, ‘90’.[43]

   [43]   T 127, 9-15.

   Complaint evidence

10. JW said that the first person he told about the abuse was his girlfriend, RB (nee RK). They were 16 when they met through basketball and they dated for a year, broke up, got back together and were in a relationship until about 23 or 24 years of age.[44] He gave evidence that he told RB when he was in his late teens and that this ‘came out of a bit of desperation’.[45] His behaviour had become a bit erratic, he was extremely distrusting of anyone and everyone. He became possessive. He noticed that RB was ‘moving away’ from him and he thought he was going to lose her.[46] He described the circumstances of his disclosure of the sexual abuse to RB as follows:

    [44]   T 128, 20-26.

    [45]   T 128, 28-30.

    [46]   T 128, 32-38; T 129, 1-8.

    It was in person but it had come after a few what I would call like, a few things happened that set me off. Her cuddling me in bed, spooning, I would freeze and then I would get really, I don’t know if startled is the right word but I would quickly move, I couldn’t have her, like, yeah, spooning me and it sort of just came out that that’s what happened to me and then I shut down again and just said ‘I was sexually abused by my uncle, it’s messed me up and I don’t know what to do about it and I was scared that you’d think I’m weird, you know, odd, and that you were going to leave as well’.[47]

    [47]   T 130, 2-12.

11. In cross-examination JW said that his erratic behaviour involved insecurity, depression and anxiety and that he first noticed it when he was close to 20 years of age. Initially, RB was supportive, but she then became less tolerant. His insecurity and depression would manifest itself in his questioning of her and who she was with, lying to her about where he had been or who he had been with. She accused him of cheating, and they were fighting a lot.[48]

    [48]   T 132.

12. In the period leading to the relationship breaking up, JW engaged in emotional blackmail of RB.[49] JW agreed that he was, to some extent, unaware of the effect of his behaviour upon RB.[50] It was put to JW that his disclosure of the sexual abuse to RB occurred when he was 23 or 24 years of age and towards the end of his relationship. He said that he was unsure of the exact time but believed it was late teens, early twenties.[51]He said that recurring memories and nightmares from 17 years of age onwards prompted him to tell RB about the abuse.[52] JW denied that he disclosed the abuse at a time when his relationship with RB was in trouble.[53]

    [49]   T 132, 34-37.

    [50]   T 133, 1-9.

    [51]   T 133, 14-38; T 134, 1-34.

    [52]   T 134, 3-16.

    [53]   T 135, 1-7.

13. When JW told RB he had been sexually abused by his uncle, he could not remember how she reacted or exactly what he told her. He did not recall writing a letter to her about the sexual abuse.[54]

    [54]   T 135, 36-38; T 136, 1-34.

14. JW said he was not present at any time when RB met the accused and if he had introduced the accused to her, that is something he would have remembered. He said he avoided family events when he was going out with RB.[55] He was not sure whether his relationship ended soon after he made the disclosure but said it ended when he found out RB was with someone else and from then on, she did not speak to him or return his phone calls.[56]

    [55]   T 137, 1-23.

    [56]   T 139, 8-21.

15. JW agreed that his parents were made aware of the allegations of sexual abuse before 2010 but he did not tell them.[57] JW then sought professional help but did not give a statement to police until late 2018, because, until then, he was not ready to do so.[58]

    [57]   T 139, 23-38.

    [58]   T 140, 4-8, 28.

16. In cross-examination, JW said he did not know whether the two occasions of abuse that he was able to describe in detail occurred when the accused was staying with his family during holidays or after he had moved to Adelaide to work at the western suburbs school but had not yet found a place to live.[59]

    [59]   T 147, 30-38.

17. In JW’s signed statement to police dated 8 December 2018 he said:

    I commenced having weird moments in my late teenage years, 17 to 19 years, where my mind would play a scene or a snippet from the sexual abuse and I wasn’t able to stop it or control it. For a while I thought it was all a dream and I would say I was more confused than anything as these memories and flashbacks became more and more frequent and more and more vivid. I began to realise that I hadn’t been dreaming and that these disturbing memories were real events that happened to me.[60]

    [60]   T 150, 20-29.

18. JW agreed that there was a stage in his pre-teen years, when he was trying to recall the events involving the accused, that he thought it was all a dream. He said this was ‘before the realisation that what had happened did happen’.[61] He said that as the flashbacks occurred, he knew that he was not dreaming.[62] I then asked JW the following questions:

    [61]   T 154, 3-9.

    [62]   T 154, 28-31.

    QSo, [JW], when you used the expression ‘dream’ in your statement what did you mean by that, when you thought it was all a dream.

    AI was trying to make an understanding in my own head of why I was having these very vivid images and recollections of me being in the situations that I was in and [the accused] being in those images and then when I was around him why I felt the way I did.

    QSo, the expression ‘dream’ in the context of what you’ve just explained, what was that intended to capture or mean, what was the dream component.

    APiecing together what had happened. So, by dreaming I didn’t mean, you know, I went to sleep and then woke up and thought, ‘Oh what happened?’. Dreaming as in I had recollections of these things happening but I didn’t know where to place them, if that makes sense.[63]

    [63]   T 156, 34-38; T157, 1-11.

    …

    QBut in that period when you thought it was all a dream what was the ‘it’ that you thought was all a dream, I think that is what Mr Redford is asking.

    AThe acts.

    XXN

    QAnd that’s all the acts that you’ve described in court today, the sexual acts.

    AYes.

    …

    HER HONOUR

    Q[JW] just so I understand, and you agree you told police ‘I began to realise that I had not been dreaming’, when you said that what did you mean by ‘dreaming’, that you came to the realisation that you hadn’t been dreaming.

    AThat it was real, that I hadn’t – that it was what I believed it was.[64]

    [64]   T 158, 35-38; T 159, 1-4, 14-20.

19. JW then said that at the time he thought it was all a dream, all he could remember about what had occurred was the physical acts of abuse and nothing else.[65] JW agreed that he pieced it together by putting two and two together and coming up with a conclusion.[66]

    [65]   T 160, 29-36.

    [66]   T 161, 36-38; T 162, 1-3.

20. JW agreed that in his first statement to police he did not mention that the accused touched his bare skin or that the accused had removed his own underwear.[67] JW explained the second omission on the basis that he was nervous, anxious and was not aware of how much detail the police officer at the time had asked him and he added detail later on.[68]

    [67]   T 163, 10-17, T 164, 30-38; T 165, 1-2, 7-16.

    [68]   T 165, 17-38; T 166, 1-2.

21. JW agreed that in his first statement he had told police the following detail: the accused referred to special cuddles and that it was a secret, the accused was rubbing up against him, was kissing his neck and ear, pulled into his bottom and put his legs over his hips and pushed his penis into his bottom area and thrust until ejaculation.[69]

    [69]   T 166, 3-27.

22. It was put to JW that he made up the account of the sexual abuse to impress his girlfriend RB, during the course of their break-up. JW denied this. It was put to JW that the sexual abuse never happened at all. He denied this.[70]

    [70]   T 168, 20-25.

23. In re-examination, JW was asked what he meant when he said that he was ‘starting to understand things more and what…’ in the context of explaining what it was that made him realise it was not a dream. JW said:

    AI started to understand that – and I’d looked into understanding what happens in traumatic situations and when you’re under stress and trauma, and those things rang true for me. And, as I said before, the piecing together got me to the point where I realised that and confirmed that it was all real, and then that opened another bunch of other issues around how to deal with it.

    QAnd so what was it that you were starting to understand more.

    AThat I could confirm that I was sexually abused.

    QStarting to understand things more and what –’, can you complete that response for us now. Do you know what it was you were going to go on and say.

    AWhat really happened to me.[71]

    [71]   T 169, 16-30.

24. JW said that he had read about trauma and the body and brain’s response to situations. This added weight to his understanding that what had happened to him was real. JW explained what he had read:

    About how the brain deals with different traumatic situations from – and I was specifically looking at child sexual abuse and what happens to children, and then I looked into it a little bit more, and the things that I was reading about were confirming the things that were happening to me. The – as I said before, the piecing together of thoughts, the confusion, the way in which sometimes it doesn’t allow, it doesn’t allow you to understand it or to get a deeper understanding of it until you’re either emotionally ready or in a place to be able to deal with it and work through it.[72]

    [72]   T 170, 14-24.

25. JW was recalled for further examination at the request of the prosecutor and with the consent of defence counsel. JW was then asked whether he could recall any other details of the sexual acts on those occasions that he was not able to recall in detail. JW gave the following evidence of what he could recall of those other occasions:

    There was a time where I left the bathroom and I actually heard the sliding door peel back or slide open and the accused was on the mattress on that occasion and the gesturing to come towards him and the talking. I then went down the hallway or through the kitchen onto the mattress. And the physical acts, as I’ve said before, included me getting onto the mattress and always facing towards the kitchen, so on my left side. He was always behind me in that he was always on my back. The physical acts or the abuse acts started with the rubbing and touching over the top of my pyjamas of down and up my back, my arm, my leg and my bottom and led further on towards putting his hand inside my pyjama pants but over the top of my underwear, my jocks, and fondling and touching my penis and my genitals, my scrotum area. And that continued with the rubbing and touching that led to more aggressive pulling in of me towards him and kissing of my right ear and on my neck area. As things kept going, his thrusting or pulling me towards him continued and I could feel his erect penis pushing into my backside, my bottom. And the kissing and the heavy breathing I can remember in my ear. And then when he would ejaculate, again he would pull me in. And then after ejaculation he would sort of hug me and tell me that that was good and it was our special cuddles, it was our time together and that it had to be between us and he would then tell me to go back to my bedroom. On occasions, as I’ve said before, I remember him telling me to get my brother. And then there were other occasions where I wasn’t told to get my brother, I was just told to go back to my bedroom and wait until I was woken up by Mum or that other people were awake in the house.[73]

    [73]   T 254, 27-38; T 255, 1-21.

26. JW was unable to say whether the occasion he described above took place when the accused was living in the Riverland or when he was in Adelaide working at the western suburbs school.[74]

    [74]   T 255, 23-31.

27. In further cross-examination, JW confirmed his evidence that the abuse started when he was around 6 years old and ended when he was either 9 or 10.[75] It was put to JW that when he first reported the matter to police in December 2017, he told police that the offending occurred when he was between 6 and 8 years of age. JW said that he could not recalling saying exact dates or ages.[76]

    [75]   T 256, 11-18.

    [76]   T 257, 16-38.

28. It was put to JW that, in December 2017, he told police that the sexual abuse only occurred at St Agnes on weekends and school holidays. JW said he did not remember saying that.[77]It was put to JW that he did not tell police in December 2017 that the offending occurred at a time when the accused was staying in the family home whilst teaching at the western suburbs school. JW said he was unsure.[78]

    [77]   T 258, 17-30.

    [78]   T 263, 1-7.

29. JW said that, when a teenager, the accused gave him presents, athletic equipment, a pair of running spikes for athletics day, a pair of brown/grey Nike shoes and sports bags.[79]

    [79]   T 264, 25-34.

30. JW said he was not sure if, in December 2017, he told police that he was possibly the only victim.[80]JW agreed that when he gave evidence about the accused asking him to send in his brother for special cuddles, he believed that the accused had been sexually abusing his brother.[81] He could not remember when he came to that conclusion.[82] When it was put to him that he did not tell police about any suspicion he held that the accused was sexually abusing his brother, JW said that he was protecting his brother ‘against what was unfolding’.[83]

    [80]   T 268, 17-28.

    [81]   T 271, 1-15.

    [82]   T 272, 2-3.

    [83]   T 272, 34-38.

31. JW was asked whether he told police in December 2017 that either he or the accused at some stage during the occasions of sexual abuse had no underwear on. JW said he could not recall.[84]

    [84]   T 276, 17-21.

1. In re-examination, JW explained that he mentioned his brother’s special needs, his mother being protective of him and the fact that the accused was his mother’s brother as the reasons why he may not have told police about his suspicion that the accused had sexually abused his brother:

   …I was trying to protect him and my family…from having to realise what had happened. But also I think I carried a lot of guilt in that I followed rules or was told to go and do something so I did it, and if what I did then led him into what happened to me and the things that I’ve had to struggle with and go through, then I couldn’t live with myself because I’m his bigger brother, I’m supposed to protect him and I didn’t.[85]

   [85]   T 279, 9-20.

   The complainant’s parents

2. JW’s mother MW was 68 years of age when she gave evidence. She said she had been married to RW for 43 years and they had 3 children together, JW born 30 November 1980, CW born 24 March 1982 and TW born 26 March 1985. Her son, CW was born with Down Syndrome requiring him to attend early intervention programs on a regular basis for his fine motor skills and development. He was often sick, had croup and a lung disorder that would regularly develop into pneumonia. He was frequently in hospital. He required a nebuliser when young, and all of his developmental stages took longer than the other children. When CW was three, TW was born, and MW had a lot on her hands.[86]

   [86]   T 174-176.

3. MW came from a family of 13 and the accused was one of her older brothers.[87]

   [87]   T 174, 35-38; T 175, 1-10.

4. At the time of the trial, MW was living at St Agnes and had lived there since JW was born. In 1985, the accused was living in Riverland and teaching at the High School. Later, between 1985 and 1990 the accused moved to Adelaide to teach at a western suburbs school. When the accused was living in the Riverland he would come and stay at St Agnes at least once or twice, mainly during school holidays but sometimes on the odd weekend. If the accused came to stay during school holidays, he would stay for two or three days.[88]

   [88]   T 177-178.

5. When the accused stayed at St Agnes when he visited from the Riverland, he would sleep in the lounge room on a sofa bed mattress, or on the floor. MW identified the lounge room in P2. If he slept on the mattress it would be just inside the lounge room sliding doors. If he slept on the floor without a mattress, he would only have blankets.[89]

   [89]   T 179.

6. Before the accused moved back to Adelaide, the whole family would go to the Riverland and stay with him at least once a year during school holidays.[90]

   [90]   T 180-181.

7. The accused stayed at St Agnes for an extended period of time, but no more than 6 months, when he transferred to the western suburbs school. During that time, he slept in the family room, which later became the dining room. When the accused slept in that room, he slept on a sofa bed mattress.[91]There was no door to this room.[92]

   [91]   T 180.

   [92]   T 181, 32-33.

8. MW said that JW’s relationship with the accused was not close:

   He wasn’t really close with anyone. I mean, you know he called him uncle. Yeah, he was quite grumpy with him, he said they should go out and play and shouldn’t be around adults.[93]

   [93]   T 182, 26-29.

9. Between 1985 and 1990, MW’s husband RW worked shift work. He worked three shifts: night shift, day shift and afternoon shift. When RW worked nightshift, he worked from 11pm until 7am, arriving home around 7-7.30am, depending on whether he did overtime or not.[94]

   [94]   T 183, 19-38, T 184, 1.

10. There were occasions when JW was growing up that he would wet the bed. MW said she would find that his pyjamas were wet in the morning. She said the bed was wet as well. He wet the bed on the odd occasion when he was between 5 and 7 years of age.[95]When he was 7-8 years of age it was happening more.[96]

    [95]   T 185, 12-37.

    [96]   T 185, 36-38, T 186,1.

11. In cross-examination, MW said that she never saw the accused give any gifts to JW or the children.  MW agreed that in her statement she described the accused as stingy. She said in evidence that he did not buy them Christmas or birthday presents.[97]

    [97]   T 186, 4-10.

12. RW was 67 when he gave evidence. He said that the accused would stay at the family home at St Agnes three or four times a year when he was living in the Riverland. The accused would stay for a couple of days or up to a week. When he stayed he would sleep in the lounge room on a lounge bed that folded out. He slept on a mattress that was on top of the folded-out bed.[98]

    [98]   T 187-188.

13. RW said that JW’s relationship with the accused did not seem to be a strong one; the accused would chastise the children for being too loud or misbehaving.[99]

    [99]   T 188, 8-12.

14. During the 1980’s RW worked in plasterboard manufacturing at Wingfield. He worked rotational shift work. Day shift was 7am until 3pm, afternoon shift was 3pm until 11pm and night shift was from 11pm until 7am. When he worked a day shift he would leave home at 5.30am. If he worked a night shift he would get home around 7.30-7.45am.[100]

    [100] T 188.

15. RW said that in the mid to late 1980’s the accused stayed with them at St Agnes for three or four months when he took a position at a western suburbs school and was looking for accommodation. The accused stayed in the family room and slept on a double bed base and mattress.[101] The bed was moved into the family room for the accused to sleep on.[102]

    [101] T 190, 15-38.

    [102] T 191, 7-11.

16. In cross-examination, RW said in 2008 he first learnt of allegations that the accused has sexually abused JW. He confronted the accused shortly after that.[103]

    [103] T 191, 13-22.

17. RW agreed that, during the times that the accused would come and stay for weekends or holidays, and when he was there for an extended period, there would be occasions when RW did not go to work. During the accused’s extended stay, RW said the accused would leave for work at the western suburbs school between 7.30 and 8.00am in the morning.[104]

    [104] T 191-192.

    JW’s girlfriend RB

18. RB gave evidence that she was born on 11 March 1981 and was in a relationship with JW from 16 years of age until 24 years of age.[105] Towards the end of the relationship, JW disclosed to her that he was sexually abused by his uncle. JW made this disclosure in a letter that he left on her windscreen which she saw on her way to work. At the time she received this letter, her relationship with JW was not going very well. They were arguing a lot and JW was very volatile.[106]

    [105] T 198, 4-15.

    [106] T 198, 21-34.

19. RB said she did not recall much of the letter, but the disclosure of the sexual abuse was the main part. JW said it was the accused who had abused him.[107]It was unusual at that stage for JW to write her letters.[108] When asked if she recalled any further details of the contents of the letter, RB said:

    [107] T 198, 37-38, T 199, 1-3.

    [108] T 199, 9-11.

    It was more so, I guess, justifying his behaviour of why and I guess he was trying to explain to me why the way he was, so.[109]

    [109] T 199, 22-24.

20. RB said JW’s behaviour at the time was erratic and he was going out drinking and struggled to express himself and it was hard for her to understand why he was so frustrated all the time.[110]

    [110] T 199, 26-31.

21. Within a couple of days after she read the letter, she spoke with JW about it.[111] JW told her that the reason he did not like her ‘spooning’ him was because it brought back memories.[112] She could not recall anything else about that conversation. She said that in the letter, JW did not provide any detail about the nature of the sexual abuse.[113] Her relationship with JW ended within a couple of months of this conversation.[114]

    [111] T 199, 33-38; T 200, 1-2.

    [112] T 200, 8-12.

    [113] T 201, 1-22.

    [114] T 201, 23-27.

22. RB said she met the accused a handful of times at family get togethers or when the accused would come over to JW’s parent’s house.[115]These occasions were before she was given the letter by JW. [116]RB said she did not recall JW having brought up at any earlier time in the relationship the fact that he did not like her ‘spooning’ him. She did not think that she or JW did this very often.[117] RB said that the relationship was good at the start and things started to unravel in the last three or four years, which she put down in large part to his behaviour.[118]

    [115] T 201, 28-38.

    [116] T 202, 2-5.

    [117] T 202, 7-18.

    [118] T 202, 23-33.

23. In cross-examination, RB agreed that she found the letter after she and JW had had an argument. During their relationship, JW had threatened to commit suicide whenever she had indicated she was prepared to end the relationship.[119]When he first started making those threats, she was concerned they were real threats but as the relationship progressed, she became less concerned.[120]

    [119] T 202, 37-38; T 203, 1-7.

    [120] T 203, 9-17.

24. RB agreed that when she met the accused, he seemed to always want to help JW, but their relationship was not close.[121]JW was never rude to his uncle but never made any effort to spend time with him.[122] She said that the accused supported JW getting into university and ‘things like that’.[123] When she saw the accused at JW’s family home, JW’s parents and siblings were home too.[124]

    [121] T 203, 32-37.

    [122] T 203, 38; T 204, 1-2.

    [123] T 204, 4-12.

    [124] T 204, 13-18.

25. RB said the letter from JW was handwritten and that it covered matters related to their relationship as well as the disclosure of the abuse. She could not recall him mentioning dreams in the letter.[125]At the time she received the letter she wanted to end the relationship.[126]She did not show anyone the letter or talk to anyone else about it and when asked what happened to the letter, she said she probably threw it out.[127]

    [125] T 204, 22-36.

    [126] T 204, 38; T 205, 1-2.

    [127] T 205, 20-31.

    The investigation

26. Sergeant Leanne Trimboli was the chief investigating officer. She took over the conduct of the investigation from another police officer in December 2018. Sergeant Trimboli interviewed the accused on 19 December 2018. The audio-visual record of interview was tendered in evidence: Exhibit P3.

27. In the interview, the accused denied the allegations and said that JW’s parents came to see him many years before, alleging that he had indecently assaulted JW. The accused told them that he had never done anything like that to JW. The accused said he stayed at JW’s family home when he transferred back to the western suburbs school and had nowhere to stay. He thought he stayed in one of the bedrooms but said it could have been in the family room. The accused said that once or twice he had woken up to find that JW was lying up against his back on the bed and he asked him what he was doing and told him to get back to his own bed. On occasions, he would find JW’s brother CW lying behind him. When the allegations of sexual abuse were put to him, the accused said, ‘that’s a load of rubbish’.

28. On the day of the interview, photographs were taken of the accused which show an area of discoloured skin on the accused’s upper left breast: Exhibit P4.[128]

    [128] T 209- 211.

29. Sergeant Trimboli was shown an Occurrence Inquiry Log Report (OILR) and said that this document recorded what was done in relation to the investigation of JW’s allegations. The first entry on that document was 4 December 2017, the date that JW first reported the matter to police. Thereafter, the OILR recorded the contact between police and JW. The OILR was tendered in evidence as a business record: Exhibit P5.[129] It was later agreed by counsel that the tender of P5 should be modified such that I should not have regard to, or receive, the contents of the entry under the date 4 December 2017 as a business record. This was because both counsel agreed that the entries detailing what JW told police were inaccurate and I should disregard them.[130]

    [129] T 211-212.

    [130] T 252-253; T 334-335.

30. I have done so.

31. Sergeant Trimboli said she had no difficulty keeping in touch with JW.[131]

    [131] T 219, 12-16.

32. In cross-examination, Sergeant Trimboli said she had interviewed RB, who told her she had received a letter from JW. Sergeant Trimboli did not see that letter but said she would have asked her if she still had it. Sergeant Trimboli said she did not obtain photographs of JW’s family home that had been taken during the period in which the alleged offending occurred.[132]

    [132] T 220-221.

33. Sergeant Trimboli was aware that the accused had Parkinson’s disease at the time of his interview but did not know when he was diagnosed with that disease or what his physical condition was at the time of the alleged offending.[133]

    [133] T 221.

34. Sergeant Trimboli assumed because of the passage of time that any clothing worn by the accused or JW would ‘have long gone’.[134]

    [134] T 222-223.

35. In answer to questions from me, Sergeant Trimboli agreed that a logical question to ask JW and RW was whether they had seen anything resembling ejaculate on JW’s pyjamas or his bedding during the years over which the alleged offending occurred.[135]

    [135] T 223, 16-26.

36. Sergeant Trimboli was then given the statements of MW and RW and said that there was nothing in RW’s statement covering this point. In MW’s statement she said, ‘I remember at different times when JW was growing up, he would wet his bed and clothing of a night-time. I didn’t think anything of it at the time, just that he had the occasional accident’. Sergeant Trimboli said that she understood that MW was talking about wetting the bed and without leading the witness she would have left that for MW to elaborate on.[136]

    [136] T 225, 1-13.

37. The final witness was Detective Amanda Casey. She was produced for cross-examination at the request of defence counsel. On 4 December 2017 at 7.08pm, and in the presence of Detective Sergeant Billington, she interviewed JW. During that interview, Detective Casey took notes of what she was told by JW. Those notes were not a verbatim account of what JW said but was a paraphrased account. At the time she gave evidence, Detective Casey had no independent recollection of anything JW told her.[137]

    [137] T 283-284.

38. Detective Casey was cross-examined about her note:

    facing sliding doors, suspect’s behind, over the leg, touching private parts, touching the back and ear, no underwear LS ejaculate.

39. She could not recall whether JW was referring to himself or the accused in respect of the note ‘no underwear, LS ejaculate’. She agreed that she had no note to suggest that JW had told her that he had ejaculated on any occasion of alleged abuse.[138]

    [138] T 286, 17-36.

40. JW told her that the alleged abuse occurred ‘between 6 and 8 years’.[139] Detective Casey made a note:

    [139] T 287, 1-4, 22-29.

    Only happened at St Agnes – weekend, school holidays.

41. She agreed that the reference to ‘only happened at St Agnes’ was the result of JW telling her the abuse only happened at St Agnes, but she was unable to recall whether the reference to weekend or school holidays related to the alleged abuse.[140]

    [140] T 288, 1-18.

42. Detective Casey made a note:

    Brother 18 months younger, sister five years younger, possibly only V.

43. Detective Casey said that ‘V’ was an abbreviation of victim. Detective Casey agreed that she could not recall any allegation of sexual abuse when JW was a teenager but agreed that JW told her that as a teenager he was bought running boots and football boots. [141]

44. In re-examination, Detective Casey said that she could not recall what JW said that caused her to write the word ‘possibly’ but that there ‘was obviously an inference of some sort that he possibly only thought it was just himself being the victim’.[142]

    Other evidence

45. A statement of teaching service was tendered: Exhibit P6. That document established that the accused was employed by the Department of Education and Children’s Services (DECS) as a teacher at in the Riverland from 1 January 1975 to 25 January 1989. The accused was then employed by DECS as a teacher at a western suburbs school from 26 January 1989 to 23 December 1994.

    Agreed facts

    [141] T 289, 1-18.

    [142] T 291, 23-28.

46. At the conclusion of the oral evidence, the following facts were agreed:

    1.JW replied promptly to all telephone messages left for him by all police officers involved in the investigation of this matter throughout the investigation. He may have had missed calls from private numbers which he could not and did not return.

    2.Mrs JW is the mother of JW’s ex-girlfriend M with whom he was in a relationship a few years after his relationship with RB ended.

    3.JW told Mrs JW about the allegations in about 2007.

    4.Mrs JW then told JW’s sister TW about the allegations.

    5.The notes of Detective Casey do not record that Mrs JW was the first person JW told about the allegations.[143]

    [143] Exhibit P7.

    Prosecution address

47. Mr Hill, for the prosecution, argued that JW’s account contained a high degree of detail that was compelling. He urged me to find that he was an honest witness and that the question was one more of reliability than credibility. This was particularly so, given JW’s frank concession that there was a time, in his teenage years, when he had to confirm in his own mind that the allegations of sexual abuse were real.

48. Mr Hill said that JW was able to articulate in a high degree of detail the sexual acts performed by the accused. Although JW could not differentiate each individual occasion of sexual abuse, he recalled that the physical acts proceeded in much the same way and thus his description of them blended. Mr Hill said that it was unsurprising that an offender would offend in the same way on each occasion and therefore unsurprising that JW’s recollection of the individual physical acts and touching was the same.

49. Mr Hill referred to the fact that JW was able to describe certain surrounding circumstances which served to ‘book-end’ some of the occasions of abuse. JW also recalled that the accused had a birth mark on his chest, but Mr Hill quite properly did not seek to elevate this evidence to the point of demonstrating esoteric knowledge.

50. Mr Hill said that JW’s description of the heavy breathing and the progression of the touching had a ring of truth to it, and was given in the way that a person recalling a real lived experience would give it.

51. Mr Hill said that JW’s evidence that he was wetting the bed and his description of the back of his pyjamas being wet and sticky were two separate memories, and there was no basis to suggest that he had confused bed wetting with having ejaculate on his pyjamas. Mr Hill said that if the abuse had been imagined, it would be incredible to think that a person would have a recollection of how something smelt and that it felt sticky.

52. In relation to the complaint evidence, Mr Hill said I should prefer RB’s account and find that the first disclosure occurred by way of a letter from JW. Mr Hill said that RB had a very distinct recollection of that, when compared with JW’s inability to recall many details of the conversation in which he said he disclosed the abuse to RB. Mr Hill emphasised that both witnesses gave evidence of a conversation in which the abuse was discussed. Mr Hill agreed that it was open for me to accept that the disclosure of the abuse was, in part, an attempt to salvage or save the relationship. However, Mr Hill said that I ought not reach a conclusion that JW made up the allegation to save the relationship or, as defence counsel put to him, to impress her. Mr Hill said it would be quite incredible to claim to have been sexually abused to prevent a relationship ending.

53. Mr Hill said that there was no conflict between the evidence of RB that she did not know that JW did not like her spooning him and JW’s evidence that, during the disclosure of the sexual abuse, he told her that is why he did not like her spooning him. Mr Hill said that JW kept that to himself and his adverse reaction to the spooning was internal.

54. Mr Hill said that JW was especially candid in his evidence when he said that, at one point, he had thought the abuse was a dream. Mr Hill said that JW was not evasive when he was cross-examined about this and that he was very open about the emotional and intellectual processes he went through when dealing with his recollection of the abuse. Mr Hill said that the real issue to be grappled with in the trial was not JW’s credibility, but whether JW was giving an account of something that really happened, or was giving an account of something that he believed really happened.

1. Mr Hill said that the fact that JW broke down in the witness box when asked why he told police that he was ‘possibly’ the only victim and described the guilt he felt over not being able to protect his younger, vulnerable brother was powerful evidence of his honesty. Mr Hill accepted that his reaction was consistent with him giving an account of something that really happened or something he believed had really happened. Mr Hill neatly encapsulated the real issue in the trial in this way:

   I submit that your Honour can comfortably make that finding, that he’s a man with an honest belief in what happened, and the question is whether that honest belief is based on true facts.[144]

   [144] T 315, 7-11.

2. Mr Hill argued that I should interpret JW’s evidence that, at one point, he thought the physical acts of abuse were a dream, as describing his thought process in coming to terms with his memory of what had in fact happened to him.

3. Mr Hill said that MW’s evidence that JW was wetting the bed more when he was 7 or 8 than the odd occasion between the ages of 5 and 7 supported JW’s account that this occurred, and therefore supported his account of his avoidance behaviours that resulted in him wetting the bed.

4. Of the conflict between JW’s evidence that the accused always slept in the lounge room on a mattress and MW and RW’s evidence that, when he had returned to Adelaide, he stayed in the family room, Mr Hill said that I should find that all sexual acts occurred in the lounge room. Mr Hill said that JW must be wrong when he said that the accused slept in the lounge room when he had left the Riverland and moved to Adelaide.

5. Accordingly, the prosecution case is that the sexual abuse happened before the accused moved to Adelaide.

6. Mr Hill accepted that the corollary of that was that JW was wrong about the age he was when the abuse stopped. However, Mr Hill said this was not the kind of error that should cause me to doubt his credibility or reliability. This was because what happened in the lounge room was significant and therefore in JW’s mind when the accused stayed over, he stayed in the lounge room.

7. Mr Hill said that Detective Casey’s note and her evidence that JW told her the abuse happened between the ages of 6 and 8 was not necessarily inconsistent with JW’s evidence. JW said that he believed he was 9 or 10 when the abuse stopped.

8. Mr Hill submitted that I was not required to give myself a forensic disadvantage direction but that did not mean I should not take account of the effect of the delay in reporting the matter. Mr Hill said that if the complaint had been more proximate to the allegations, it might have been possible to allege specific dates and the accused might have been in a better position to defend himself by obtaining evidence of his and RW’s work records.

9. In relation to the accused’s record of interview, Mr Hill suggested that I could find that when the accused volunteered that JW and CW had been in his bed, he did so because he thought he might have been seen. Mr Hill said this was an attempt to provide an innocent explanation for JW being in bed with him.

   Defence address

10. Defence counsel, Mr Redford, said that the evidence narrowed the allegations of abuse to having occurred when JW was 6 to 8 years of age and could not have occurred when the accused was staying for an extended period in JW’s family home.

11. Mr Redford said that it would be surprising for the abuse to have stopped when the accused had a greater opportunity to continue to offend, and in a location (the family room) where he was less likely to be seen. Mr Redford said that on JW’s evidence, the accused abused JW when he had the opportunity to do so, namely when he was staying overnight. However, I would have to reject JW’s evidence that the offending occurred when the accused was staying there after he had moved to Adelaide, because the accused did not stay in the lounge room during that period. Such a finding would undermine the credibility and/or reliability of the evidence of JW that the accused sexually abused him when the opportunity to do so arose in the mornings on JW’s exit from the bathroom.

12. Mr Redford urged me to find that JW was either lying or has reconstructed the account of the abuse to explain why his relationship was breaking down and to try to salvage it. Mr Redford said that the reconstruction theory explained the level of detail given by JW in evidence when describing the abuse. Mr Redford said the absence of any allegation of grooming behaviour by the accused told against the likelihood of the abuse having happened.

13. Mr Redford said that the accused had been forensically disadvantaged by the delay because the letter JW gave to RB had been lost, the precise layout of the house could not be ascertained, and no forensic examination of bedding or bedclothes could be undertaken.

    Application of s 34M (2) Evidence Act 1929

14. After closing submissions, I invited prosecution and defence to address the question of whether the prohibition in s 34M (2) of the Evidence Act 1929 applies in a trial by Judge alone.

15. S 34M (2) prohibits the making of any suggestion or statement 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.

16. In his written submissions, Mr Hill contended that, by its terms, s 34M (2) does not apply in a trial by Judge alone. Another Judge of this Court has come to the same view: R v M, R B [2020] SADC 173.

17. I agree.

18. In R v T, WA [2014] SASCFC 3 and De SA v R [2020] SASCFC 22 it was held that s 34CB did not apply in a trial by Judge alone and s 34CB did not require a Judge to include within his or her reasons a direction of the kind prescribed by the section. S 34CB refers specifically to the explanation and directions that must be given to a jury where the delay in a complaint has resulted in a significant forensic disadvantage.

19. By its terms, and by analogy of reasoning with those authorities, I have determined that counsel is not prohibited from commenting on the effect of a delay in making a complaint in this case.

20. Mr Hill contended that the delay in JW complaining is entirely explicable, absent any adverse finding in relation to his credit. Mr Hill said that I should find that JW was honest and reliable in his evidence about the mental process he undertook in order to arrive at a conclusion that the sexual acts in fact occurred. If I made that finding then much of the delay in JW disclosing the offending to RB is accounted for, because it was in the period of the delay that JW was undertaking this mental process.

21. Mr Hill said that I should also accept that it would have been especially hard for JW to come forward about the alleged abuse because of his own feelings of denial, shame and disgust and because of the ramifications to the family of any disclosure. Accordingly, it is unsurprising that JW first disclosed the offending to RB.

22. Finally, Mr Hill said that I should accept that the further delay in making a report to police was consistent with JW’s reticence to disclose at all. In those circumstances, Mr Hill said I should find that the delay does not adversely affect his credibility or consistency of conduct.

23. Mr Redford argued that I should prefer RB’s evidence of the timing and mode of the complaint by JW.  Mr Redford said that the delay in complaint is consistent with the defence submission that JW’s account was a reconstruction pieced together over a period of time. Accordingly, the delay in complaint and the circumstances of the complaint mean that the possibility that the complainant reconstructed the events that are the subject of the charge is a reasonable one.

24. Mr Redford also contended that even if I accepted that the JW was "reticent" in making a complaint to police, the prosecution cannot exclude beyond reasonable doubt that the reticence arose from JW endeavouring to rationalise his life by "piecing together" what allegedly happened.

    Assessment of witnesses and findings

25. I found Sergeant Trimboli and Detective Casey to be reliable and credible witnesses. Their evidence was not challenged.

26. I found RW and MW to be honest witnesses and I prefer their evidence as to the sleeping arrangements for the accused when he stayed overnight to that of JW. As adults and being responsible for the arrangements by which the accused would stay and where he would sleep in the house, I consider their respective recollections to be more reliable. There was some conflict between MW and RW regarding what the accused slept on (a mattress on the floor or on the sofa bed) and whilst I do not consider anything turns on that, I prefer the evidence of MW on this topic. I consider it more likely that she would recall accurately that sort of detail, given the fact that RW was working long hours and home much less of the time.

27. I accept the evidence of RW, MW and RB as to their respective observations of the relationship between the accused and JW and find that the accused did not buy the children gifts, that the accused would chastise the children for being too loud or misbehaving and, during the period in which RB was in a relationship with JW, the accused always seems to want to help JW but they did not have a close relationship.

28. I found RB to be an intelligent, articulate and honest witness.

29. I accept RB’s evidence regarding the timing and circumstances of the disclosure to her by JW of the alleged sexual abuse. I prefer her evidence over that of JW because the detail in her account suggested she had a good recall of the circumstances of this disclosure. In contrast, the evidence of JW on this topic was vague and largely lacking in any detail.

30. I find that this disclosure occurred in circumstances where JW was aware that the relationship was floundering, that this was largely the result of his own behaviour and that RB had told him she wanted to end the relationship. I accept her evidence regarding the behaviour of JW during the entire period of their relationship, including that he had made several threats to commit suicide, which she initially took seriously and thereafter did not.

31. I accept RB’s evidence of the nature, frequency and timing of the contact she had with the accused in JW’s presence. I prefer her evidence where it conflicts with JW’s evidence on the topic of RB being introduced to the accused and attending JW’s house and family events at times when the accused was present.

32. I accept her evidence that JW did not ever tell her that he did not like her ‘spooning’ him.

33. I find the disclosure to RB happened after JW had undertaken the process described by him in evidence of determining that the sexual abuse, which he had thought was a dream, was in fact real. I will return to this topic later in my reasons.

34. On the unchallenged evidence led by the prosecution I also make the following findings:

    ·JW was born on 30 November 1980.

    ·CW was born on 24 March 1982 and suffered from Downs Syndrome. He was frequently hospitalised as a young child.

    ·TW was born on 26 March 1985.

    ·RW and CW shared a bedroom in the house at St Agnes.

    ·From 1985 onwards JW lived with his mother, MW, father RW, brother CW and sister TW at the family home in St Agnes.

    ·The photographs of the house at St Agnes in P2 accurately depict its layout and, apart from some furniture and cosmetic changes as described in evidence by RW and MW, it is structurally the same as in the 1980s.

    ·The plan of the layout of the house drawn by JW in P1 is an accurate representation of the layout of the house during the period of the allegations.

    ·The accused was born on 12 March 1951. The accused was brother to MW.

    ·The accused was employed by DECS as a teacher at a High School in the Riverland from 1 January 1975 until 25 January 1989. From 26 January 1989 until he accepted a voluntary separation package on 23 December 1994, the accused was employed by DCS as a teacher at a western suburbs school in Adelaide.

    ·The letter that RB said JW wrote to her and in which he disclosed that he had been sexually abused by the accused no longer exists.

    ·JW told Mrs JW, the mother of his ex-girlfriend M, about the alleged sexual abuse in 2007.

    ·Mrs JW then told TW about the alleged sexual abuse.

    ·In the mid to late 1980s, the accused stayed from time to time during school holidays or on weekends at JW’s family home at St Agnes whilst he was living in the Riverland. When he stayed at the family home during this period, he slept on a sofa bed mattress on the floor of the lounge room or on the lounge room floor itself.

    ·Whilst the accused was living in the Riverland, JW and his family would visit and stay at least once a year during school holidays.

    ·The accused moved to Adelaide after he stopped teaching at a High School and stayed at the JW family home for an indeterminate number of months in late 1988 and/or early 1989 while he was waiting to find his own accommodation. During this period, he slept in the family room. There was no door to this room. From 26 January 1989, the accused would leave for work between 7.30am and 8.00am in the morning on weekdays during school term.

    ·In the 1980’s, RW worked in plasterboard manufacturing at Wingfield. He worked rotational shift work, day shift (7am-3pm), afternoon shift (3pm-11pm) and night shift (11pm – 7am). When RW worked day shift he would leave home at 5.30am. When RW worked night shift he arrived home between 7.30am and 7.45am.

    ·JW reported the allegations to police on 4 December 2017. Thereafter he replied promptly to all telephone messages left for him by all police officers involved in the investigation.

    ·Detective Casey was one of the police officers who interviewed JW when he first reported the matter on 4 December 2017. She did not make a verbatim record of what JW said and, at the time she gave evidence, she had no independent recollection of what he told her. In that interview, JW told her that the alleged abuse occurred when he was 6-8 years of age and at the St Agnes home.

    Analysis

35. It is common ground, and self-evident, that the case for the prosecution depends entirely on the evidence of JW. I formed a favourable view of JW as he gave his evidence. He was an intelligent, articulate and thoughtful witness. He was not evasive, and he did not obfuscate. I formed the view that he was an honest witness doing his best to tell the truth.

36. However, there were aspects of his evidence that conflicted with other evidence I found to be credible and reliable. This has caused me to have some reservations about the reliability of his recollection, noting that JW was giving evidence of events that occurred when he was a very young child and over 30 years ago.

37. The aspects of his evidence that I have rejected as unreliable are as follows:

    ·That the accused moved to Adelaide when JW was 5 or 6 years of age, in the early to mid-1980’s.

    ·That the accused slept in the lounge room on a mattress on the floor when he was staying at St Agnes after having moved to Adelaide.

    ·That JW’s disclosure to RB took place in his late teens or early twenties and not at time when his relationship was in trouble.

    ·That he was not present at any time when RB met the accused, and that he avoided family events whilst in a relationship with RB.

38. The proved prior inconsistent statements regarding the date range of the alleged abuse and the omission to tell police that the accused touched JW’s bare skin and was not wearing underwear, are also matters that undermine the reliability of JW’s recollection of events.

39. However, the aspect of the JW’s evidence that has singularly troubled me is his admission in cross-examination that he told police that at one point he thought the sexual abuse was all a dream. In evidence, he confirmed that this was what he had thought and explained in detail the mental process he undertook, following which he reached a conclusion that the sexual abuse had really occurred and that it was not a dream.

40. It is clear from a consideration of JW’s evidence on this topic that there was a period in his life when he was not certain that the thoughts and memories he was having of being sexually abused, actually related to real events. He explained that, at some point, he had a realisation that:

    ‘what had happened did happen…that it was real, that I hadn’t – that it was what I believed it was’.[145]

    [145] T 159, 19-21.

41. JW explained that he was fortified in his conclusion that the sexual abuse had in fact occurred when he read about trauma and the body and brain’s response to traumatic situations. He said that:

    ‘the piecing together got me to the point where I realised that – and confirmed that it was all real’.[146]

    [146] T 169, 19-21.

42. As is apparent from JW’s evidence, there was a period in his life when he was not certain in his own mind whether the sexual acts about which he gave evidence had in fact happened. I accept JW’s evidence that he undertook this mental process and the steps that were involved.

43. However, the mental processes by which JW arrived at a conclusion that the sexual acts in fact happened is one that is impossible to unravel, test or evaluate.

44. JW said the abuse ended when the accused moved into his own home in Adelaide and thus the opportunity to offend no longer existed. However, on the findings I have made, the accused never slept in the lounge room during his extended stay after obtaining a position at a western suburbs school and whilst looking for a place to live. Thus, the alleged offending could only have occurred when the accused was living in the Riverland and came to stay at JW’s family home on weekends or school holidays.

45. In the circumstances of this case, and given the brazen nature of the offending, if the allegations were true it is unusual that, during his extended stay, the accused did not ever call JW into the family room and abuse him in the way described by JW.

    Complaint evidence

46. The evidence of JW and RB as to complaint is admissible as evidence of how the allegations came to light. It may be used as evidence of the degree of consistency of conduct of the complainant. It is not admitted as evidence of the truth of what was alleged. In this case, the complaint was devoid of any detail of the nature and extent of the sexual abuse. The complaint was that the accused had sexually abused JW. In addition, the circumstances in which I have found the complaint was made and the reaction by RB to it, limit its use to evidence of how the allegations came to light. 

47. I do not regard the delay in the making of the complaint to RB as reflecting adversely on JW’s credibility. I have accepted as truthful JW’s evidence that he undertook a mental process over a period of time which resulted in him concluding that the sexual abuse had in fact occurred. In these circumstances, the delay is explicable and does not reflect adversely upon his credibility.

48. Given the lack of detail in the complaint and JW’s evidence regarding the mental process he undertook prior to making the complaint, the extent to which the complaint is capable of demonstrating consistency of conduct is limited, if not negligible.

    Forensic disadvantage

49. Although I am not required to give myself a direction of the kind prescribed by s 34CB of the Evidence Act 1929, the existence of a forensic disadvantage is a matter that should normally be taken into account by a Judge sitting alone in the course of considering whether the charge has been proved beyond reasonable doubt.[147]

    [147] R v T, WA (2014) 118 SASR 382 at [21] – [22]; De SA v The Queen [2021] SASCFC 22 at [113].

50. In this case, the alleged offending occurred over 30 years ago. The opportunity to offend was directly linked to the occasions upon which the accused stayed in JW’s family home. Had a prompt complaint been made, the accused would likely have been in a position where he could remember the dates that he stayed at the family home and his movements whilst there, and potentially adduce supporting evidence (documentary or testamentary).

1. It is likely that the records evidencing the shifts worked by RW would have been available and capable of establishing on what mornings he was absent from the family home and whether they coincided with the dates during which the accused stayed.

2. Importantly, had a prompt complaint been made, forensic examination of the bed clothes and pyjamas of JW could have been conducted to detect the presence of semen or DNA. Finally, if a complaint had been made at a time proximate to the delivery of the letter by JW to RB, the letter itself would likely have been available and therefore the context in which the disclosure of the abuse was made would have been known.

3. In my view the lapse of time has created a significant forensic disadvantage for the accused. JW’s evidence established that the window of opportunity for the offending to occur was confined to a time period of about an hour in the morning and to a precise location – the mattress on the floor of the lounge room. The window of opportunity for it to occur was further narrowed by reference to the other persons present in the house at the time, because the offending always occurred when his father was not home.

4. JW alleged that the offending occurred more than 5 times but less than 10, and so the passage of time has significantly, if not completely, impeded the accused’s ability to establish with precision the dates upon which he stayed, and the whereabouts and work patterns of JW’s father during those dates.

5. In the circumstances of this case, having regard to the evidence of JW that, for some time, he thought the sexual acts were a dream, the passage of time might have caused JW to believe that an innocent event was not innocent and to be convincing in evidence. I take into account the possibility that events have been recalled inaccurately and that JW has become convinced that events took place which did not, or that an incident which did take place might have been misconstrued.

   Conclusion

6. JW was the key witness for the prosecution. The accused cannot be found guilty of the charge unless I accept his evidence beyond reasonable doubt. There is no independent support for his allegations. The accused emphatically denied in his interview that he had sexually abused JW in any way. However, he said that there were occasions when he would wake up and find JW or CW in bed behind him.

7. The offending described by JW was extremely brazen and occurred in a location whereby any other person in the house could have seen JW and the accused in bed together when walking down the hallway leading to the toilet or if entering the kitchen. JW did not suggest in evidence that the accused closed the sliding door to the lounge room after inviting JW into bed with him. Although the offending was alleged to have taken place between about 6.30am and 7.30am, the possibility of being detected nevertheless existed. On JW’s evidence the accused took no steps to avoid this possibility.

8. Whilst brazenness in offending of this type is not uncommon, the brazenness of the alleged offending in this case is to be contrasted with the limited number of occasions upon which JW said this offending occurred. Further, on the facts I have found, the accused was sleeping in the family room for an extended period in late 1988 and/or early 1989. That room had no door and was closer to JW’s bedroom.

9. JW’s account of the offending having always occurred in the lounge room suggests that, not only did he have no memory of the accused sleeping in the family room for an extended period, but there was no occasion when he was in bed with the accused in the family room. JW also had no memory of staying with the accused in the Riverland, despite those visits occurring during the period of the alleged abuse.

10. There is no explanation for the cessation of the offending during the period of the accused’s extended stay, particularly given the obvious opportunity to offend and the pattern of offending described by JW on occasions when the accused had stayed the night whilst visiting from the Riverland.  Further, the cessation of the offending prior to the accused staying for an extended period in JW’s home is inconsistent with JW’s account that the offending stopped when the accused found his own accommodation and no longer had a reason to stay overnight.

11. I consider that the presence of semen in an amount that JW described as wetting his pyjamas and making them sticky is something that is unlikely to have escaped his mother’s attention. JW was a young child. MW was alert to him wetting the bed on occasion when he was between 7 and 8 years of age. I do not consider it a reasonable possibility that MW would mistake semen for urine. Sergeant Trimboli was alive to this issue when she took statements from RW and MW but neither made any mention of having detected semen stains on JW’s bed clothes or bedding.

12. JW said that he was wetting the bed as an avoidance strategy when he was between the ages of 8 and 9. Although I accept the passage of time imports an element of imprecision to the age range JW gave, that age range sits within the time that the accused had moved to Adelaide and during his extended stay with JW’s family when he slept in the family room.  On the facts I have found, no sexual contact occurred at any time during that extended stay.

13. I am satisfied that there were occasions when JW was in bed with the accused when the accused was staying overnight at St Agnes during the period that the accused was living in the Riverland. The accused admitted as much in his record of interview. I suspect that something occurred between JW and the accused when JW was very young and whilst the accused was staying over at his family home and sleeping in the lounge room.

14. However, given the aspects of JW’s evidence that I have found unreliable and JW’s candid evidence that there was a period of time during which he was not certain whether the sexual acts alleged had in fact happened, and the impossibility of unravelling the mental processes by which JW ultimately arrived at his conclusion that the events had in fact occurred, I am not able to be satisfied beyond reasonable doubt that the accused performed any of the sexual acts described by JW.

15. I find the accused not guilty.