R v BENNETT - [2009] SADC 111

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BENNETT
Criminal Trial by Judge Alone
[2009] SADC 111
Reasons for the Verdicts of His Honour Judge Lovell
19 October 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
The accused is charged with eleven sexual offences involving three complainants (six counts of indecent assault, one count of attempted indecent assault and four counts of unlawful sexual intercourse) heard together.
Verdicts: Guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) s 278(2)(a); Statutes Amendment (Evidence and Procedure) Act (SA) 2008 No 7 s 22, referred to.
De Jesus v R (1986) 61 ALJR 1; Hoch v R (1988) 165 CLR 292; Pfennig v R (1995) 182 CLR 461; R v Wallace [2008] SASC 47; R v Liddy (2002) 81 SASR 22 [62]-[68]; R v Seigneur [2009] SASC 59; Sutton v R (1993-1984) 152 CLR 528; R v Dawson-Ryan [2009] SASC 259, discussed.

R v BENNETT
[2009] SADC 111
Background

The three complainants all allege that the accused, whilst their basketball coach, sexually abused them over a period of some years. The accused at the relevant times was coach of the North Adelaide under 16 boys’ basketball team.
As a player the accused had commenced playing as a young boy at the West Adelaide Bear Cats. He played there for 13 years before moving to the Norwood Flames seeking better opportunities. From there he played for a short time with the Murray Bridge Bullets. Due to injury he took a year off. A friend mentioned to him that the North Adelaide Rockets were short of players in their senior teams so he went there initially to “fill-in” at training. He eventually began to play. At this time he was around 25 years of age. He played in the senior team until he was about 34.
Whilst playing for the senior men’s team, he became involved in coaching the men’s under 20s team. This was around 1995.[1]
[1] Exhibit P1D.
The accused and Scott Loveday were friends and teammates. Mr Loveday was coach of the under 14 boys’ team. The accused was asked by Mr Loveday to “look after” the team during a carnival, as he was unavailable.
The under 14 team was successful and the accused then stayed on as assistant coach to Mr Loveday.
The following year the accused was appointed coach of the under 16 Division 1 boys’ team. He remained as coach of that team until his arrest on some of these charges in 2006.
Common ground
As coach of the under 16 Division 1 boys’ team the accused supervised practise twice a week and coached during the matches. Some but not all boys were coached by the accused “one-on-one”. As coach of the team he established a pattern of sleepovers where the team stayed together for “bonding”. Generally but not always the sleepover occurred at his house. Whilst the fact of the sleepovers was common ground what occurred at those sleepovers was the subject of much evidence at the trial.
It was common ground that, on occasions at the sleepover, video pornography was played on the television of the accused. Who initiated the showing of the pornography was disputed. It was common ground also that, on occasions, talk of a sexual nature occurred at the sleepovers. Often this concerned masturbation. Whether the accused initiated the conversations and the extent to which he participated in such conversations was disputed.
It was common ground that the accused performed massage on most of the team members particularly when teams were participating in tournaments.
The accused was regarded as an excellent coach by all persons including the complainants and parents of the complainants.
It was also common ground that for much of the time when the accused coached the under 16s he lived with his mother in a house at Sefton Park. Later during the relevant period he moved to his late father’s house in Broadview where he lived alone.
When staying at his mother’s house at Sefton Park she lived in the “front” part of the house and he lived in the “back” part.
The “back” part of the house consisted of the accused’s bedroom, a spare room and a general living area. There was also a bathroom.
Adjoining the living area in the back was a kitchen that the accused and his mother shared. His mother had her own “living” area in the front of the house. To get from the “front” to the “back” his mother would have to walk through the kitchen. There was a sliding door between the kitchen and the “back” living area, that did not have a lock.
Outline of charges
The accused is alleged to have indecently assaulted the complainant C1. He is alleged to have attempted to indecently assault C1 on another occasion. In relation to complainant C2 he is alleged to have indecently assaulted him on five occasions and had unlawful sexual intercourse with him on two occasions. In relation to complainant C3 he is alleged to have had unlawful sexual intercourse on two occasions.
In relation to all three complainants there were other allegations that were uncharged.
Outline of the Law on Severance
Prior to the trial commencing the complainant, pursuant to Rule 9, made an application for an order that there be separate trials in respect of those counts on the information relating to each of the three different complainants. Counts 1 and 2 related to the alleged victim C1. Counts 3, 4, 5, 6, 7, 8 and 9 related to allegations by the alleged victim C2 and counts 10 and 11 related to allegations against the alleged victim C3.
The defendant conceded that the counts were properly joined pursuant to section 278 of the Criminal Law Consolidation Act.
The defendant argued that the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA) that amended section 278 did not apply to this case. It was submitted that the amendments were substantive in nature and not procedural and therefore the new provision of section 278(2a) did not apply and should be disregarded.
Mr Griffin QC (as he then was) argued that the well-accepted common law principles of admissibility regarding sexual offences should apply. The DPP’s position was that the new amendment applied but that in the alternative even if it did not the case for cross admissibility was so strong it satisfied the “common law” test in any event.
It was common ground that the Information laid in this matter was presented on 2 June 2008 and therefore the presentation of the information pre-dated the amendments pursuant to the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act and the Statutes Amendment (Evidence and Procedure) Act 2008. Those Acts came into operation on 23 November 2008.
In R v Seigneur[2] the Court of Criminal Appeal considered the applicability of the amendments to the Statutes Amendment (Evidence and Procedure) Act 2008 to an Information that was laid prior to 23 November 2008 but came on for trial after that date. During the course of their reasons for decision both Vanstone and Kourakis JJ considered the amendments made pursuant to the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act. Both considered the amendments made by both amending Acts were procedural in nature. The Statutes Amendment (Evidence and Procedure) Act 2008 contained a transitional provision that the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act did not. Whilst Vanstone and Kourakis JJ differed as to the interpretation of the transitional provision, both found that the amendment of section 278 in the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act was procedural in nature and it would therefore apply immediately irrespective of the date of the alleged offence or of the information.[3]
[2] [2009] SASC 59.
[3] Paragraphs 70 and 112.
Gray J considered that the amending sections 34M and 34CB under the Statutes Amendment Evidence and Procedure) Act 2008 were properly designated as procedural amendments. He also considered that in the context of the interpretation of the transitional provision in that particular Act. His Honour whilst noting the relationship of the two amending Acts did not specifically comment on whether the amendment to section 278 of the Criminal Law Consolidation Act was procedural or substantive in nature.
In my view I should follow the reasoning set out by the Court of Criminal Appeal in Seigneur’s case. Two of the three Justices specifically found the amendment procedural in nature.
It was faintly argued that the remarks from Justices Vanstone and Kourakis were obiter dicta and not binding. I do not need to decide that question as even if the statements were by way of obiter dicta in my view their reasoning, with respect, is correct.
In my view section 278(2a) applies to this case.
Prior to the amendment the general principle was that where an information contained charges of a sexual nature which were based on the evidence of two or more complainants and where the evidence of one complainant was not admissible in respect to the other charges then to prevent an accused suffering impermissible prejudice a separate trial would be directed.[4]
[4] De Jesus v R (1986) 61 ALJR 1, Hoch v R (1988) 165 CLR 292.
The exclusionary rule invoked was that evidence that reveals that an accused is a person of bad character is not admissible if it proves no more than that he or she has a general dispositional propensity to commit a crime of a particular kind.[5] However propensity evidence could be relevant and admissible in relation to a number of issues in a particular case. It might assist in proving identity or intention, or in disproving accident or mistake or innocent association. The probative value of such evidence can arise from the fact that it bears striking similarities with the allegations made in relation to the other offences but equally its strength might lie in the “unusual features”, “underlining unity”, “system” or “pattern” which it reveals such that it raises as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the prosecution.[6] The criteria for admission of such evidence was, at common law, the strength of its probative force. The test is usually stated in terms of the probative value or cogency of the evidence must be such that if accepted it bears no reasonable explanation other than the inculpation of the accused person and the offence charged.[7]
[5] Pfennig v R (1995) 182 CLR 461.
[6] See Hoch v R (supra).
[7] Hoch v R (supra), Pfennig v R (supra), R v Wallace [2008] SASC 47.
Under the new section 278 (2a) the “threshold test” is lower.
Section 278 is as follows:
(1)Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrasses in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a)Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a)     subject to paragraph (b), those counts are to be tried together;
(b)     the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim;
(c)     in determining admissibility for the purposes of paragraph (b)—
(i)evidence relating to the count may be admissible in relation to another count concerning a different alleged victim if it has a relevance other than mere propensity; and
(ii)     the judge is not to have regard to—
(A)whether or not there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant; or
(B)whether or not the evidence may be the result of collusion or concoction.
Section 278(2a) is invoked because “two or more counts charging sexual offences involving different alleged victims are joined in the same information”. I may order a separate trial (s (2a)(b)) of a count relating to a particular complainant if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different complainant.
Thus I must examine each count individually and assess whether the evidence on that count is admissible on each other count relating to a different complainant.
In determining the question of admissibility I am to have regard to the matters set out in section 278(2a)(c). The evidence is admissible in relation to another count if it “has a relevance other than mere propensity”.
Evidence of “similar facts” or “underlying system, pattern or unity” is a form of circumstantial evidence. However the ordinary rules of admissibility did not apply to such evidence.[8] The principles mentioned earlier applied to such evidence due to the highly prejudicial nature of the “propensity” nature of the evidence. Section 278(2a)(c) states the threshold test as “a relevance other than mere propensity”. The section is silent as to the strength or cogency on the evidence proposed to be led. It must, simply put, have a relevance other than the mere propensity
[8] Sutton v R (1983-1984) 152 CLR 528.
The relevance in this matter is clear. It is relied upon by the prosecution to establish an underlying unity, system or pattern which reveals as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the prosecution. It is also relevant to rebut the suggestion of “innocent association”.
I ruled at the beginning of the trial that the application to sever the counts on the information such that all three complainants allegations were heard in separate trials was refused. I applied the new section 278(2a) in so ruling. I made that ruling having read the declarations of the complainants. There was in my view clear relevance other than “mere propensity” in the evidence. My reasons for deciding the question of relevance are set out later in the judgment when dealing with the question of cross admissibility and the use that can be made of the evidence called at the trial.
I simply add that had I used the common law test under the principles enunciated earlier I would have refused the application in any event. In my view the evidence from the declarations showed the highly probative and cogent nature of the evidence proposed to be led in this case.
General directions
Burden of proof
The accused has come into this Court with the presumption of innocence operating in his favour on each count. The law regards him as innocent on any and all counts unless and until his guilt has been proved beyond reasonable doubt.
The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
If, upon a consideration of an individual count, after full and careful consideration I am unable to decide where the truth lies, or who is telling the truth the prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict would be not guilty. Where I indicate that I am satisfied about a particular fact or event, I mean satisfied beyond reasonable doubt.
The accused does not have to prove or show anything. The accused was not obliged to give evidence but he chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness. However in approaching this task I bear in mind the disadvantages the accused has suffered (referred to later) by the lateness of the complaints in the matter.
Specific directions
Whilst the amendment to section 278 applies the recent amendments to the Evidence Act contained within the Statutes Amendment (Evidence and Procedure) Act, being Act No 7 of 2008, do not apply to this trial given the wording of the transitional provision, being s 22 of the amending Act. These proceedings were commenced before the commencement of Part 4 of the amending Act. The common law directions are therefore applicable.
Lack of corroboration
It was argued that there is no independent support, for the evidence of any complainant or count. Here there was evidence that if accepted tended to support complainant C2’s evidence of a relationship of more than just friendship with the accused. The prosecution did not suggest that this evidence could amount to “corroboration”. I will approach the case on that basis.
Longman warning (R v Longman (1989) 168 CLR 79)
The allegations in this matter arise from conduct beginning in the late 1990s. There was no relevant complaint from any of the alleged victims. I appreciate that the failure to make a complaint does not necessarily mean the allegation is false. There may be reasons for the failure to complain. All three complainants gave their reasons for the lack of complaint.
There are a number of issues that arise due to the lack of complaint.
First, the overall delay has led all the complainants to be unable to remember some matters of detail. That factor has disadvantaged the accused because of an inability to test the complainant’s account in detail.
Secondly, the delay in making the complaint in itself may cast some doubt about the reliability of the evidence of the complainants.
Thirdly, from the accused’s perspective, the lack of a prompt complaint, or no complaint, has occasioned a forensic disadvantage to the accused particularly in relation to complainants C1 and C2. The accused may, again depending upon the issues on individual counts, have been better able to remember his movements, or have someone vouch for his movements or provide an alibi, or find forensic evidence, which may have been available or not found (which can be equally important). His mother lived in the front part of the house where most of the offending is alleged to have taken place. I have taken those and other disadvantages into account. I have also assumed there were other disadvantages that would have emerged with the ability to examine in greater detail. If there had been a prompt complaint, there would have been an opportunity for the accused to interview potential witnesses
I take those disadvantages into account in assessing whether the prosecution has proved its case against the accused. Mr Sykes, who made final submissions for the accused when Mr Griffin QC became unavailable, stressed all these matters.

I must be satisfied beyond reasonable doubt of the truth and accuracy of evidence of each complainant in order to convict the accused in relation to each count. I must scrutinise each complainant’s evidence with great care. I remind myself, as I would warn a jury, that it would be dangerous to act upon that evidence unless, bearing that in mind I am completely satisfied beyond a reasonable doubt of its truth and accuracy.
Uncharged acts
In addition to the charged acts, the prosecution has adduced evidence from the complainants of other conduct not the subject of any charge.
The prosecution led this evidence, not only to show a pattern of behaviour by the accused towards the complainants, but, also allied to that, that it was the accused “testing” for the reaction of the particular complainant.
The question arises in either category as to the degree of proof required before those other acts can be acted upon. For my part, I have adopted the requirement that those acts be proved beyond reasonable doubt before I could act upon them.
Potential use of uncharged acts
In relation to complainant C1 the uncharged act relied upon related to an incident whilst the complainant was on a trip to Tasmania with the under 14 team. The accused, who was not the coach at that time, accompanied the team on the trip. The conduct was similar to count 1.
In relation to complainant C2 uncharged acts similar to the conduct in counts 3, 5, 6, 7 and count 8 were alleged.
As C2 stated;
QIf you were going over to his place, how would the sexual contact fit in with what was happening generally.
AThere would always be play wrestling, taking the underpants off and the wrestling part that I explained before. On more than 70, 80% of the occasions there would be the masturbation part of things, sleeping in bed naked, that sort of progressed into all of those things every time.[9]
[9] T 114.
Sleeping naked with the accused was also alleged although that may not have actually amounted to a criminal offence.
In relation to complainant C3 he alleged that during massages the accused would play with his genitals (similar but not identical to complainant C2 count 6). Sleeping naked with the accused, like complainant C2, was alleged.
The whole of the alleged course of events in relation to each complainant provides a context in which it is said that the charged incidents occurred. In that way it can be said that the whole sequence of events throws light on the nature of the relationship, which each complainant suggests existed between himself and the accused.
The evidence of the uncharged incidents along with the evidence going directly to the charges, in relation to each complainant, can be used by me in determining what, if any, weight I am prepared to place on each complainant’s evidence. The evidence may assist me in concluding that a complainant’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in their evidence, and thereby raising doubt about the charges.
In particular the prosecution submitted that the relevance of evidence tended to explain why a particular alleged victim did not make a complaint when the charged incidents were said to have occurred. The prosecution submitted that it tended to explain why the accused expected the complainants’ co-operation and silence in the face of what was alleged to be occurring.
It also, it was submitted explained why the complainants apparently showed no shock or distress at what they described as the accused’s conduct on the charged occasions.
Further it could be used to assist in explaining the background against which the offences or the first offence charged came about where the complainants’ evidence of the offences charged or the first offence charged may otherwise have been unreal or unintelligible or not fully comprehensible. It could be used to help explain why the complainants might be unclear about precise dates and details of offences charged.
As mentioned I will only use the evidence of uncharged acts where I am satisfied beyond a reasonable doubt that the act occurred.
I remind myself that it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged.
Ultimately it is upon the evidence in relation to the charges themselves upon which I must render my verdicts.
The uncharged non-sexual acts (touching, but not necessarily in circumstances of indecency) have a potential use in the way submitted by the prosecution. They could be used to show that the accused was testing some of the complainants to see whether they reacted adversely or negatively to being touched. This includes touching during massage and sleeping together. Such touching could legitimately be used as part of the progression of conduct, moving from seemingly innocent touching to more intimate and sexual touching.
As mentioned during the trial, evidence given by the witness GB about an incident with the accused will be ignored by me.
Additional warnings
As has been mentioned, the accused is charged with a large number of offences against three adolescent male complainants. I must not let the multiplicity of charges or complainants incline me to the view the accused is, or might be, guilty of some or all matters. That would be quite an erroneous approach.
It must also be said that the verdicts must relate only to the events charged. It would also be erroneous to be satisfied about an uncharged sexual act and transpose that finding to a charged incident about which the requisite proof was lacking.
Cross-admissibility
Both the prosecution and the accused are entitled to a separate consideration by me of each of the crimes charged. Each count must be considered by me separately in the light of the evidence that applies to it and I must ask myself, as to each count, separately, ‘Am I satisfied beyond a reasonable doubt by the evidence that the accused is guilty of this crime?’ If the answer to the question is ‘Yes’, I would find him guilty. If ‘No’, then I would find him not guilty. Depending upon my view of the evidence, I may find the accused guilty of all counts, not guilty of all counts, or guilty of some and not guilty of others.
As I must consider each charge in light of the evidence that applies to that count the question of whether there is cross admissibility of evidence between the complainants is important to resolve.
As mentioned, the prosecution case is that evidence adduced in proof of one count is admissible in proof of other counts. As other parts of these reasons make plain, the view to which I have come is that there was no concoction between any of the complaints.
Before taking the submission relating to cross-admissibility further, it is useful to reflect upon the issues raised in the counts.
I commence by observing that the accused has denied all counts. However, his evidence in relation to each count is not exactly the same. In some instances, it is that neither the alleged events nor anything like them occurred. In others, the general events surrounding the alleged offending occurred eg, a particular sleepover at C1’s parents’ house occurred but that there was no offending.
Overall the accused has denied the events giving rise to the charges. In addition to that, he has denied doing certain things for example in supplying alcohol to the boys. He has admitted other conduct such as providing therapeutic massage (with the parents consent) permitting pornography to be shown at some of the sleepovers (at the boys instigation), becoming friends with the parents, spending “one on one” time with some of the team members including the complainants; he denies they have any sinister meaning.
In my view the conduct of the accused based upon my factual findings discussed below discloses what the authorities refer to as a system or pattern or underlying unity in the sense that the alleged offences were committed in a specific context.[10] Cross-admissibility is not limited to cases of “striking similarity”. Indeed this is not a “striking similarity” case.
[10] R v Liddy (2002) 81 SASR 22 at [62]-[68].
I also accept the prosecution submission that the evidence is capable of rebutting or negativing innocent association. Part of the accused’s case was that the sleepovers with the complainants (including alone or with the team), the massages, the “one on one training”, the association with the families were ancillary to legitimate activities. The use of the evidence rebuts that innocent association because of the objective improbability of complainants who have not “got their heads together” or whose evidence is not contaminated in some way giving a similar account.
Whilst the common law test of admissibility was couched in terms of the evidence possessing a particular probative value or cogency by reason that it revealed a pattern of activity such that, if accepted, bore no reasonable explanation other than the inculpation of the accused in the offence charges the statutory test of admissibility laid down in s 278 is not so testing. However in my view the evidence in this case as mentioned would have satisfied the common law test of admissibility.
In this case I intend to approach the matter on the basis that I must be satisfied beyond a reasonable doubt of, for example, complainant C2’s evidence before I could use it in relation to the counts charged in relation to complainant C3. I would also have to be satisfied beyond a reasonable doubt that concoction or contamination had not occurred.
Having satisfied myself of those two matters I would not use the evidence unless I was satisfied that there was no rational view of that evidence consistent with the innocence of the accused. In other words once I have accepted the other two matters mentioned I would only use the evidence if it bears no reasonably possible explanation other than the inculpation of the accused person and the offence charged.[11]
[11] Hoch v R (supra), Pfennig v R (supra), R v Wallace [2008] SASC 47.
I bear in mind that in looking at the items of evidence I do not do soon a stand-alone basis. I must look at the collective of those aspects of the evidence which themselves suggest a system, pattern or underlying unity such as warrants the evidence being cross-admissible.[12]
[12] R v Dawson-Ryan [2009] SASC 259 [55].
Concoction/contamination
It was not suggested to the complainants that they had in some way “got their heads together” and concocted the evidence. C1 and C2 were friends when they were young. They had a falling out over a girl when they were about 14-16 years old. They didn’t get on well after that. They had little or no contact with each other in the last few years. For a period of time C2 was playing in America. They did not contact each other at that time.
Neither C1 nor C2 knew C3 very well. C3 was 5-6 years younger than them. C2 had met C3 but only briefly. I have assumed that C1 knew C3 from dealings at the club but there was no evidence that they were in any way friends.
I accept that there is no onus on the accused to prove concoction. The DPP must exclude that possibility beyond a reasonable doubt. I find that they have.
In this case the defence submitted the possibility of contamination of evidence given that the players are all from the same club and that rumours were “floating around”. It is the case that Mr Loveday spoke to C1 and then Mr and Mrs C2. He may have spoken to C2. There is no suggestion he spoke to C3.
Again it is not for the accused to prove that contamination of the evidence occurred. It is for the DPP to establish beyond a reasonable doubt that it did not occur.
I am satisfied beyond a reasonable doubt that the DPP has done so in this case. Mr Loveday gave evidence and was cross-examined. I accept his evidence. There clearly was no contamination between the complainants.
There was evidence that the family of C2, when the allegations first came to light from C2, discussed their recollections amongst each other. It would have been surprising if they had not done so.
However in my view Mr and Mrs C2 and their son X were acutely aware when they gave evidence to only give evidence of what they could remember not what they had been told. In relation to Mr and Mrs C2’s evidence it was largely not disputed by the accused (apart from a few aspects). The evidence of X (the brother of C2) and his description of finding the accused in bed with C2 did not rely on anything his parents had witnessed. It was a totally separate incident.
I have given careful consideration to the question of contamination between C2 and his family and between his family in general. In my view the DPP have established beyond a reasonable doubt that contamination did not take place.
Underlying system
Prosecution submissions
The prosecution case is that the accused adopted a system or pattern of behaviour whereby he identified these complainants as being young boys to whom he proposed to make advances of a sexual nature. It was alleged that there were certain features to this pattern of behaviour:
1.The accused gained trust and control over each of the complainants as a result of his position as coach.
This applied to all members of the teams but to a varying extent. Indeed to some extent it was accepted by the accused. He was regarded universally (even by the complainants) as a “great” coach. He was successful as a coach. He was a disciplinarian who treated the young boys as young men. He imposed, on tour, restrictions on the players having contact with their parents. There were sleepovers at his house where activities occurred (discussed later) that led to the culture of “what goes on, on sleepovers stays on sleepovers”. These matters were not denied by the accused.
I rely on these facts.
2.Each of the complainants were particularly vulnerable given their physical proximity to the complainant and his relationship with them in person and their families.
Generally the accused had a good relationship with most of the parents of boys in the various teams. Some had more contact with him than others.
In C1’s case there was no evidence of a close relationship between him and the accused. However C1 stated that during the time he was in the under 16 team he became closer to the accused than he had previously been.[13]
[13] T 257.
C1 explained that by saying that “I didn’t like him but I was spending a lot more time with him”[14] He attended the accused’s house between 50 and 80 times. As his siblings also would be training they would kill time at the accused’s house and “just chat about basketball and things like that and he would always prepare dinner for us”.[15] Clearly there was significant contact.
[14] T 257 line 27ff.
[15] T.258 line 4ff.
However the accused had a good relationship with C1’s parents. The accused did not deny that he had a good relationship with Mr and Mrs C1.
In C2’s case there was extensive evidence of a close relationship between the accused and C2 and the accused and C2’s parents. Other than allegations of a sexual nature or evidence that could be considered supportive of a sexual relationship the accused did not deny that he had a close relationship with C2 and his family.
In relation to C3 there was evidence of a close relationship between him and the accused. This again was not denied by the accused other than allegations of a sexual nature. There was no evidence of a close relationship between the accused and C3’s family. C3’s parents had divorced. Mr C3 was not generally interested in sport. Both parents however allowed the accused to spend significant time with the accused. Clearly there was a respectful and trusting relationship between C3’s family and the accused.
I rely on these matters.
3.The accused would use unorthodox methods of physical contact such as massage to gain and maintain physical control over the complainants and to initiate physical contact.
The fact that the accused performed “massage” was not disputed. Indeed he said that he did it on many of the boys and with the parent’s permission. That is consistent with the evidence of the prosecution witnesses. It was submitted by the accused that the massage clearly had a therapeutic context. Again I agree. However the fact that it had a “legitimate” therapeutic side to it does not mean that it is not evidence of an underlying pattern or unity. Both the complainants C2 and C3 gave clear evidence of the fact that the accused took the opportunity of the “massage” to sexually abuse them. There was no evidence given that complainant C1 was massaged by the accused. There was other evidence that boys in his team were massaged, often in front of other team members.
I rely on this matter.
4.The accused would use his position of trust and proximity to groom the complainants: he would identify them as deserving of special attention and single them out.
The prosecution alleged that the accused “groomed” the three complainants. I will deal with the individual allegations of grooming. To a significant extent this allegation overlaps with the other matters mentioned.
(a)     Sexualisation of conversation
This contained a number of elements. First there was pornography available at the accused’s house. This was shown at the team bonding sessions. Secondly there was discussion about masturbation at the team bonding sessions.
Many boys were called to give evidence on these topics. I do not intend to analyse the evidence in any detail. Not surprisingly the team members’ evidence varied somewhat. Some boys had strong memories of, for example, the pornographic DVD material; others did not. Some had clear recollections of discussion about masturbation; others did not. That discrepancy is not surprising given that the boys, at the time, were young, adolescent and no doubt at different stages of maturity. Further the boys at the team bonding sessions were doing different things at different times. It could not be said that they remained as an “entire group” all of the time. I accept that there was no direct relationship between the showing of pornography and the sexual offending. Complainant C1 could not remember pornography being shown at the accused’s place and by the time complainant C3 was being coached the showing of pornography had ceased. The prosecution did not allege a direct relationship between the showing of pornography and the offending. It was alleged to be part of the “background” of grooming the boys to “sexual matters”.
The accused did not dispute some of this evidence. He agreed that, at his house, there was pornographic material; he was a bachelor. He had been introduced to pornography by his father at a relatively early age. He did not see pornography as other than a normal part of growing up.
The area of dispute was whether he suggested the boys watch the pornographic material on the TV. He said that the boys found the material and would request it; he did not put it on but allowed it to be played on some occasions.
In relation to the evidence of team members about the activities it is not a matter of me adopting a “golden mean” approach to the matter. I must be satisfied beyond a reasonable doubt of such facts before relying on them. I do not think the evidence allows me to be satisfied beyond a reasonable doubt as to what occurred at the various sleepovers.
I will therefore rely on what the accused admitted.
I find that he did not specifically put the material on the TV for the boys to watch. However I find that he fostered the idea that pornography was available to be seen at his house. Rather than hide the material he was well aware that over the years the “word” would be around that team members could see “porn” at his house. As a result, on occasions, as admitted, he would allow “porn” to be watched at his house.
This question of pornography also has to be seen against the background of his comments to the team members “what goes on at the sleepovers stays at the sleepovers”. This was a secret between the players and the coach that the parents were not to know.
As to the question of talk of masturbation again the evidence differed from the witnesses about that. That is also not surprising for the reasons mentioned above. Some boys had the accused more involved in that topic than others.
The evidence however does not enable to me to find that the accused initiated such conversation. The accused admitted that from time to time he may have been involved in such talk but only in a joking way and only if one of the boys had initiated the discussion. I accept that level of involvement. However his involvement even to that limited extent has to be seen against the background of the pornography and his involvement with the boys away from their parents.
I rely on the matters mentioned.
(b)    Massages
The accused admitted massaging many of the boys in the team. He stated that it was purely therapeutic. However it did give him the opportunity to be alone with some of the boys.
I rely on this matter.
(c)     One-on-one contact
The accused admitted “one-on-one” contact with all three complainants. The “one-on-one” contact related to extra skills coaching. The accused gave evidence that “one-on-one” coaching was available to other boys in the teams (and on occasions was taken up by them). Other boys gave evidence of “one-on-one coaching. Once again the accused asserted that it was purely for the purpose of the boys improving their skill level. Clearly it had that aspect. However it was another opportunity for the accused to be alone with the complainants.
I rely on these matters.
(d)    Horseplay
This was an activity that took place at the sleepovers. The team members as a group would attempt to wrestle the accused (who was quite strong) to the ground. Nothing turns on this and I reject it as part of a pattern of grooming.
(e)     Gifts
It was alleged that the accused gave gifts to complainants C2 and C3. He did not deny doing so. He said that he gave gifts to other boys apart from those complainants. The evidence established that he gave more expensive gifts to complainants C2 and C3. I rely on this matter.
(f)     Engagement with the families
This was common to all three complainants although it was not limited to them. There was evidence that by and large the accused got on well with most of the parents. The evidence established beyond a reasonable doubt that the accused was particularly involved with the parents of complainants C1 and C2. This was in part due to the fact that he coached the complainants’ brothers as well. The parents of complainants C1 and C2 were much involved in their children’s sport. Complainant C3’s parents (who were separated) were less interested in basketball. I infer from the fact that complainant C3 spent so much time with the accused that his parents trusted the accused. Complainant C3 said that he only went to the accused’s premises or was picked up by him with the permission of his parents.
The engagement of the family was particularly strong with complainant C2’s family. The accused was for a time regularly eating meals with the family. All families trusted the accused to pick their children up from practice and to bring them home. This included picking up complainant C2 from school and C2 and C3 from home. Complainant C1 and his family lived in the “hills”. The accused drove the complainant and his brother home on occasions.
Whilst the “engagement with the family” varied between the complainants the evidence showed beyond a reasonable doubt a pattern of behaviour with the parents of the three complainants.
I rely on this matter.
(g)     Special coaching attention
This has been touched upon under the heading of “one-on-one contact”. However it should be noted that all three complainants are or have been what could be described as “elite” basketball players. Two have had scholarships with the AIS and two have also had involvement with the Adelaide 36ers. Again the accused submitted that his association with basketball and his dedication to coaching meant that he would be coaching some “elite” players; the association was innocent and to some extent inevitable. I accept that in the course of his coaching the accused would inevitably come across “elite” players. Indeed these three complainants were not the only “elite” players coached by the accused. However the fact that there may be an “innocent” connection does not mean this evidence is not relevant to the question of an “underlying pattern”, “system” or “unity” of conduct.
I rely on this matter.
(h)    Control of on court time
The prosecution have not established this and I ignore it.
(i)     Pick up and drop off
I have dealt with this already under engagement with the family.
(j)     Life coaching
The accused agreed that he ended up giving some boys life coaching – by that he meant helping them deal with problems outside of basketball. Some of the parents who gave evidence appreciated his assistance in that regard. The prosecution have not established that he was a “life coach” to the three complainants. I ignore that evidence as it relates to the question of “grooming”. It has relevance to the question of “character” evidence of the accused. I will deal with that later in the judgment.
5.The accused would take advantage of his position within the complainants’ social setting and group settings to exert his influence over the complainants.
This allegation adds little to what has already been discussed under “grooming”.
6.The accused would use his position of authority to create opportunities to be alone with the complainants.
This also has been dealt with under the section of grooming.
7.The accused relied upon his position of coach to affect his own purpose for example cancelling a training session.
I have already dealt with the position of coach. Otherwise this adds nothing to the matter. There is little or no evidence that he “manipulated” things such as training sessions or court time as part of an underlying pattern or system.
8.The accused would engage in sexual activities with each of the complainants.
The offending alleged was generally similar between complainants. In relation to complainant C1 there was no allegation of unlawful sexual intercourse. However there was a constant theme of masturbation in relation to the other alleged offending and uncharged acts. All three complainants complained about the accused touching them inappropriately on the penis. Whilst the evidence would not amount to “striking similarity” of the acts, as mentioned before this is not a “striking similarity” case. This is a system or pattern type case and therefore the fact that the acts may be seen as “stock in trade” type acts that does not detract from the question of underlying system or pattern.
I rely on this matter.
9.The acts of sexual assault occurred in circumstances in which there were overtones of an imbalance of physical presence on the part of the accused.
This allegation was not supported by the evidence and I ignore it.
10.The sexual acts would occur in a “one-on-one” situation where corroboration was unlikely.
I have dealt with the suggestion of a system of “one-on-one” conduct earlier. Whilst the acts in relation to complainants C2 and C3 occurred when no one else was present that was not the case for complainant C1. I find that other than what has been mentioned in terms of using “one-on-one” contact for “grooming” the prosecution have not made out this further aspect and I ignore it.
11.The accused would ensure the silence of the complainants in relation to the sexual acts by relying upon his position of coach, family friend and the apparent involvement of the complainants as complicit in the conduct.
This topic generally has also been dealt with earlier.

I note also that the complainants were all of a similar age when allegedly abused. That is a matter I also rely upon.
I have referred earlier to the question of the admissibility of the evidence and the relevance of s 278(2)(a) of the Criminal Law Consolidation Act.
In my view, the evidence that I have stated I am prepared to rely on, is cross-admissible on all counts having regard to my finding that there was in fact no concoction nor contamination between any complainant.
The authorities have articulated a number of bases upon which cross‑admissibility is justified. For present purposes I propose to refer only to a few.
In my view, the conduct of the accused based upon my factual findings, disclose what the authorities refer to as a system or pattern or underlying unity in the sense that the alleged offences were committed in a specific context: R v Liddy (2002) 81 SASR 22, [62]-[68].
Cross-admissibility is not limited to striking similarity. This is not a striking similarity case. Further, it is not necessary that the various features to which I have referred are across all counts. The test for the admissibility of this evidence is now governed by s 278(2a). I have, however, proceeded upon this basis: the evidence “...possessed a particular probative value or cogency by reason that it revealed a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged.” Hoch v R (1988) 165 CLR 292 at 294-295, relied upon in Liddy’s case (at para 50).
In my view the relevance and the use to be made of the evidence is that if accepted it raises the improbability of the events having occurred other than as alleged by the DPP.
I also accept the submission of the prosecution that the evidence is capable of rebutting or negativing innocent association. Part of the accused’s case is that his involvement in massages, sleepovers and one-on-one contact was that they were ancillary to legitimate activities. The use of this evidence rebuts that innocent connection because of the objective improbability of complainants who do not know each other giving a similar account.
In relation to the question of cross-admissibility I remind myself that it would be wrong for me to conclude from the conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged. In other words I must not use “propensity” reasoning when considering the issue and use of the “cross-admissible” evidence. In other words I should not reason from a finding of guilt on one count that the accused is the sort of person who abuses young men and is therefore likely to be guilty of any other count. When considering each count separately I remind myself of that “propensity” warning.
Evidence of complainant C1
C1 is now the manager of a winery owned by his parents. He is currently aged 24. He has now finished playing basketball. He was clearly an “elite” basketball player having earned a scholarship to the AIS when he was younger.
He said that he initially thought that the accused was “pretty cool”.[16] He gave evidence that the initial sexual contact with the accused was whilst in Tasmania at an under 14 tournament.[17] The accused was not his coach. This particular act was uncharged. The incident was very similar to the conduct alleged in Count 1.
[16] T 251 line 38.
[17] T 254.
The accused was staying in the same motel unit as C1 and two other boys. C1 had put his mattress on the floor, as the bed was uncomfortable. C1 said that the accused came in late one night smelling of alcohol. He felt the accused massaging his side and then the accused started touching his penis. C1 rolled onto his stomach and he then felt the accused put his hand on his bottom and masturbate himself. He lay there petrified. After that the accused got up and went into his bedroom in the unit.
C1 did not actually look at the person touching him. The person who touched him went into the room that the accused occupied.
C1 agreed that he did not call out at that time. He agreed his mother was in the motel in another room and he did not tell her about what had occurred. C1 said that he “felt ashamed to tell anyone and I felt it was my fault”.[18] He said he was “young, and felt dirty and disgusted and ashamed.”[19]
[18] T 271.
[19] T 271.
The next morning to the other boys on the team he said that he hated the accused without telling them why.
C1 said that when he moved into the under 16-age group and the accused was his coach, the accused expected a lot more, a “lot more one-on-one time and a lot more off the court stuff as well as on the court stuff.”[20] This included sleepover camps at the accused’s house. As mentioned earlier his mother and the accused became “quite good friends”[21] and he became closer than he had been to the accused due to the amount of time he was spending with him. He said that his mother’s friendship with the accused annoyed him “a little bit”.[22] He later said that he hated it. He was not on good terms with his mother at this stage. He didn’t want the accused and his mother to be together alone.
[20] T 256.
[21] T 257.
[22] T 276.
C1 described (in relation to count 1) how on one occasion he was staying with C2 at the accused’s house.[23] They both slept in the accused’s bed. The accused did not go to bed with them. He came in later, pressed up behind C1 and put his hand inside C1’s boxer shorts touching his penis. C1 tried to roll away and the accused put his hand on C1’s bottom and began masturbating himself.
[23] T 259.
C1 said nothing at the time as he was terrified. He did not actually see the accused on this occasion. It could, on the facts of the case, only have been the accused.
C1 agreed that he said nothing to C2 the next morning about the matter.[24]
[24] T 282.
In relation to count 2, C1 said that the conduct occurred at his parents’ place at his 15^th or 16^th birthday.[25] On that occasion the accused during the course of the function invited him out to his car where he offered him a drink of alcohol. C1 refused. The accused said, “That’s piss weak”. C1 walked off.
[25] T 260.
Some of his teammates were staying overnight, as was the accused. They were all sleeping in a granny flat. C1 was sleeping in the double bed. He had prepared himself with two sleeping bags and put them both on. He fell asleep holding the bags up to his neck. The accused came in later and touched him over the sleeping bags and tried to pull them down. C1 held onto the sleeping bags. The accused tried to grab his penis[26] having had his hand on C1’s bottom. He did not actually look at the perpetrator. Once again it, on the facts of the case could only have been the accused.
[26] T 262.
C1 agreed that he did not complain at the time of any of the events with the accused. He said he later told his parents that he had been abused but did not tell them who was the perpetrator. He agreed that the accused coached his younger brother and his failing to report the accused left his brother exposed.[27]
[27] T 290.
After C1 moved out of the under 16s his contact with the accused was less. When he had finished at the AIS he returned to the club and actually played in the senior team with the accused. He never said anything to the accused about what had happened.[28] When cross-examined about why he didn’t confront the accused he said:
Just buried the hatchet, and I’ve got love for about nine of those guys in that team. They’re still my best friends today and I didn’t want – I didn’t want anything to stop that or have to quit or anything like that. But it was horrible having to come off the court and give that man five and be in the same change room as him. It was horrible.[29]
[28] T 291.
[29] T 292.
I agree that when C1 gave evidence he was sometimes hostile towards the accused. However it was intermingled with respect for other aspects of the accused’s character. Indeed he described the accused as “very dedicated” and the accused had encouraged C1 to pursue his basketball because of his talent.[30] I have borne in mind the criticisms of C1’s evidence by Mr Sykes. However in my view his lack of complaint to anyone initially is perfectly consistent with his youth and the relationship he had with the accused (coach); the relationship the accused had with his family made it difficult for him to complain.
[30] T 286.
It was suggested that the first allegation (uncharged act) came “out of the blue”. In a sense that is correct but it does not make me doubt his evidence.
There were some possible minor inconsistencies in his evidence. I was not convinced his evidence about the sleeping arrangements was necessarily inconsistent. Even if it did amount to an inconsistency it was very minor and of little consequence.
It was further suggested that given C1’s hostility towards the accused that it is unlikely that another opportunity for sexual contact could have arisen. I reject that argument. That submission overlooks the fact that the accused was his coach; it also ignores the relationship the accused had with his family.
I have reminded myself of the warning mentioned earlier. I have carefully scrutinised the evidence of C1 bearing in mind the criticisms made by Mr Sykes.
I had absolutely no doubt that C1 was a truthful and accurate witness. As mentioned he did at times evince some hostility towards the accused. However it did not in my view impact upon the truthfulness of his evidence. I find that he was an honest and truthful witness who did his best to give his evidence without embellishment. He was clearly embarrassed about the allegations.
I have no hesitation in accepting his evidence beyond a reasonable doubt.
Evidence of complainant C2
C2 is now 23 years of age. Like C1 he is now a mature adult. He has had and continues to have a successful basketball career. He was an elite basketball player who also was the recipient of an AIS scholarship. He has played college basketball in America and has also played for the Adelaide 36ers. C2 is now studying.
His parents were very involved in his junior playing days. They struck me as caring and sensible parents who had their son’s best interests at heart. C2 described his parents and brother as loving and caring.[31]
[31] T 142.
C2 first came into contact with the accused at the tournament where he filled in as coach in the absence of Scott Loveday (the under 14 coach). C2 attended the same tournament in Tasmania as mentioned by C1. There is no suggestion of any sexual contact between the accused and C2 at that carnival. Although C2 was in the team he was a year younger than C1.
The following year he remained in the under 14 team. C1 had moved up to the under 16 team coached by the accused. There was some contact still between the under 14 team and the accused. The accused helped out on occasions with the under 14 team.[32]
[32] T 89.
This under 14 team was very successful. They won the state championship and then competed in the national tournament at Noarlunga.
The final game was the subject of evidence as it transpired that C2’s team lost the national final on the last shot of the game. C2 blamed himself for the team losing as he had made a mistake in the last few moments of the game allowing the opposition to get hold of the ball and score. It was common ground that he was very upset about the incident.[33]
[33] T 90.
Whilst the evidence varied about the timing it is likely that on that same night parents and players returned to the accused’s place after the game. C2 said that the accused was comforting him afterwards but getting “a little bit too close”.[34] However he said he didn’t really think anything of it. This occurred on the bed of the accused. C2 did not allege anything sexual occurring. On this occasion the accused gave him a “Notre Dame” jacket and the following day they both went to watch the Adelaide 36ers play. (The accused basically agreed with this evidence. Indeed he elaborated on it and I will deal with his evidence about this incident and his subsequent conversation with Mrs C2 later. C2 was cross-examined about the accused’s version).[35]
[34] T 91.
[35] T 198.
It was around this time that the accused’s relationship with C2’s family began to blossom.[36] The accused was very friendly with C1’s family around this time. C2 explained it as follows:
AThey just started to get closer, closer friends with each other. He (the accused) started to come around every Tuesday night for dinner and that lasted years. He was coming around for Christmas morning breakfast and even got a job working with my mum at Nestle.
QIn terms of coming around for tea on Tuesday, what would happen on a Tuesday night.
AOn a Tuesday night he would pick me up from school at St Paul’s and he would generally go back to my house and do a bit of a workout, push-ups and abs and play some one-on-one basketball and as time started to progress with that, that was later on, when we used to do that sort of stuff, things would also get a little weird in some respects, I guess.
[36] T 92.
C2 moved into the under 16s and the accused was the coach. C2’s dad was the team manager and did a lot of organising. He became good friends with the accused during this time.[37] There were sleepovers at C1’s parents’ place and also the accused’s house. There were no other adults present at the accused’s place (apart from his mother who lived in the front part of the house). C2 drew a sketch of the layout of the house and it was tendered.[38]
[37] T 157.
[38] Exhibit P2.
C2 described that at the accused’s place mostly they would play video games and watch TV; there was a lot of talk about masturbation on occasions pornography was shown. He described the pornography.[39] C2 thought some alcohol was consumed on the sleepovers but I am not prepared to accept that that occurred during the under 16s. It is more likely to have been in the under 18s.
[39] T 97.
C2 began to stay over at the accused’s place by himself. Initially he would sleep on a mattress on the floor but that changed to sleeping in bed with the accused. Masturbation was raised by the accused on those occasions.[40]
[40] T 98
C2 was not able to remember the first occasion he got into bed with the accused. He did remember a specific occasion. [41] This was an occasion when there was a Nestle sponsored event called Relay For Life. He had told the police when he first spoke to them that this event was one of the earliest occasions but he was unable to confirm that when he gave evidence.[42]
[41] T 101, T 172.
[42] T 182.
Horseplay occurred which led to the accused trying to and succeeding in taking his pant off and touching his penis.[43]
[43] T 102.
C2 stated that one occasion that stuck in his mind when he was in bed with the accused when the accused “spooned” him. The accused had his erect penis up against him.[44] He just tried to move away. (Count 3)
[44] T 103.
On another occasion when the accused was spooning him the accused placed his penis into the crack of C2’s anus (longways). There was no suggestion of penetration. The accused asked him “how does that feel”.[45] He replied that he didn’t like it. It did not occur again. (Count 4)
[45] T 104.
When sleeping in the bed of the accused, when they’re alone with the accused, initially he was clothed. It progressed to neither of them wearing clothes. There was talk of masturbation. The accused would play with his penis but not to the extent that he would ejaculate. However they would masturbate together. The accused touched his testicles and he would touch the accused’s testicles.[46]
[46] T 110-111.
He related the first time that happened.[47] They lay on the bed facing each other but the accused’s head was adjacent to C2’s feet. The accused and he masturbated whilst touching each other’s testicles. The accused ejaculated and went and had a shower. C2 showered after him. (Count 5)
[47] T 113.
C2 stated that the accused often gave him massages. He remembered a specific occasion when he had injured an ankle shortly prior to a state competition.[48] The massage started on the ankle, but progressed to both calves, hamstrings and then he rolled over and the accused did his “quads”. He described being put into a butterfly position. Whilst in that position the accused played with his penis and balls.[49] When grabbing his penis the accused made a noise described as a “do do do do” noise. The accused treated it as a funny game but C2 did not find it comfortable. (Count 6)
[48] T 104.
[49] T 106, T 132.
This type of event occurred more than once. As C2 described it: “Started off as nothing sexual then we’d get to something sexual then we’d build on that sexual activity to something else”.[50]
[50] T 105.
After the massages, which were done with oil, he would have a shower to get rid of the oil. The accused would insist on being in the shower to rub it off. On nearly every occasion there was a form of touching. This was similar to the massages where he would touch his penis and make the “do do do do noise”.[51] This was an occasion when he had a shower first. (Count 7)
[51] T 108, T 132.
On one occasion when C2 and the accused were in bed together the accused asked if he could put his mouth around C2’s penis. Initially C2 said no but the accused persisted and eventually C2 agreed. The accused put his mouth round his penis and held it there for a short time and took it out. He said: “how does that feel”. C2 didn’t like it.[52] This happened on other occasions but he could not remember anything specific. (Count 8)
[52] T 111, T 112.
On one occasion only the accused asked C2 to put his mouth on the accused’s penis. He did not want to do it but eventually agreed. The accused asked him to hold it over his penis for “the count of 5”.[53] C2 put the head of the accused’s penis in his mouth whilst he counted to 5. He didn’t like it. (Count 9). He was under 17 years of age.[54]
[53] T 111.
[54] T 195.
C2 said that the sexual contact was very regular with the accused. It would occur on Tuesday nights but it was more intense when they were alone at the accused’s house.[55]
[55] T 114.
The sexual contact changed as he got older. C2 described it as follows:
It did change as I started to get older. When I turned around 17 I had my own mobile phone and this was all starting to be a little bit too weird and I didn’t want to continue this anymore but I’m impaired, I don’t know how to tell anyone about it. I don’t want to confront him, I’m embarrassed about it all and it stopped because I would tell him I was busy when he would ask me to sleep over or I’d get my parents to tell him that I’m not home or if he called my mobile phone I would ignore the calls and call him back hours later and say I was busy and that’s when it sort of stopped.[56]
[56] T 117.
C2 eventually went to the AIS on a basketball scholarship and then overseas.
C2 gave evidence about a time when he and the accused were in bed together at his house when his father walked in and said in a joking way “What’s going on here.”[57] During cross-examination that was denied by the accused and a different time was put to him when something like that occurred.[58]
[57] T 115.
[58] T 203.
C2 agreed that the sessions with the accused on Tuesdays included a fitness programme. His parents were well aware of the accused picking him up from school.[59]
[59] T 160.
C2 was cross-examined about an incident that occurred when he was at the AIS.[60] Whilst having some playing problems there he was called into the coach’s office. He told them about the abuse in a general way without naming the accused. He received some counselling. He told the counsellor that he was going to go back to Adelaide and confront the perpetrator. He came back to Adelaide (and didn’t tell his parents he was coming back) but didn’t confront the accused. He spoke to him but didn’t confront him. Upon returning to the AIS he told them he had confronted the perpetrator.[61] He agreed that he lied to the AIS about that.[62]
[60] T 205.
[61] T 216ff.
[62] T 221.

Further C2 agreed that on occasions that he came back from America to Adelaide to visit his family he would catch up with the accused. There was no confrontation. On one occasion he introduced his fiancé to the accused.[63] On another occasion there was a family dinner at a hotel and the accused was present. He agreed that when he saw the accused on his return visits he was friendly towards him and even gave him a present.
[63] T 225ff.
He explained his continued contact with the accused:
I did so because again I didn’t want to put any alarm bells in my parents minds. Just continue like normal, let the past be the past I guess and continue to move on and the contact I had with him was at basketball with my girlfriend and I just wanted everything to be like normal and not get my parents involved in anything and not upset anybody.[64]
[64] T 242.
It was submitted that I should not accept C2 as a witness of truth. It was submitted that he had admittedly lied to his parents (the defence of course suggested he had told them the truth and was lying in court) and the coaches at the AIS and therefore there was doubt about his credibility. Further it was submitted that his behaviour after the abuse allegedly stopped is inconsistent with anything having happened. I reject those submissions. In my view they overlook the friendship the accused had with C2 and C2’s family.
I have set out, in part, C2’s explanation for not telling people “the truth”. I accept his evidence of that. I accept his explanation of his relationship with the accused. I have taken into account the fact that he has lied but it does not affect my assessment of him as a truthful and honest witness. I accept his reasons for his lies to his parents and coaches at the AIS. I find beyond a reasonable doubt that he told the truth when giving evidence in court.
It was further submitted that I should disbelieve C2 because of a weakness in his evidence - the presence of the accused’s mother. I reject that submission. True it is that she was living there at the time. C2 gave evidence of his contact with the accused’s mother.[65] It was suggested to him that “he would never know from one second to the next whether she would come down through the kitchen and walk in to say hello or talk to (the accused).” He replied:
No, but usually - I would know if she was home. (The accused) would mention or I would see her usually there anyway. But there was never any worry about her coming in or me knowing whether she would come in or not, no.[66]
[65] T 96, T 119.
[66] T 156.
This was consistent with the accused’s mother’s evidence. She said, when she gave evidence, that it was her practice when she was coming into the house to stick her head around the corner and say hello. She would do the same when she was leaving - say goodbye.[67] In other words the accused would generally know whether she was home or not. So would C2. Whilst it is true that there was some risk involved that “risk” was not very great.
[67] T 1259, T 1260.
She lived in the front part of the house and he in the back. The kitchen was shared.
There was also the evidence of Mr and Mrs C2 as to the time they saw the accused and C2 lying together. I accept that evidence. There is the evidence of C2’s brother of a similar incident. Mrs C1 gave evidence of a similar incident. I accept their evidence. No sexual act occurred on those occasions but the incidents themselves support C2’s description of the closeness of the relationship between he and the accused.
In addition there was the evidence of what could be described as hugging in an affectionate way on a Christmas morning that was witnessed by the C2 family. This was consistent with C2’s evidence about the nature of the relationship and inconsistent with the accused’s position.
C2 explained his friendship with the accused:
QBecause when you got to know (the accused) better, you treated him as a good friend.
AI did. Like, honestly it is kind of of weird. When none of that stuff was going on and we weren’t doing that stuff and we were just hanging out, he was a good friend and a good friend of the family. As time has gone by I don’t know what to think about him now.[68]
[68] T 200.
He agreed that the accused was always nice to him.[69] C2 said;
I was able to lie, and I really did enjoy hanging out with (the accused) when this stuff wasn’t going on, like in a family setting with my family he was actually a good guy to hang out with. I just didn’t like the stuff that went on when it was just us one-on-one.[70]
[69] T 201 line 7.
[70] T 233.
He was an excellent witness. C2 tried to give his evidence in a dispassionate way. He was also clearly embarrassed by the allegations. Despite the allegations he was making he showed little disrespect or dislike of the accused. He acknowledged quite freely that he had considered the accused a good friend even after the abuse had stopped. He was not uncomfortable being around the accused when his parents were there.[71]
[71] T 173.
C2 acknowledged the positive contribution the accused had made to his basketball skills.
C2 eventually told the police when Detective Clark rang him when he was in America. At that stage his parents had told him someone else had made an allegation.[72]
[72] T 235.
C2 explained his lack of complaint to his parents as being “too embarrassed to tell them what was going on and I didn’t want to tell anyone”.[73] He explained:
Well, I’m young and I hadn’t even kissed a girl yet, I haven’t been with a girl, so how am I supposed to know what’s right and wrong? I worked out what’s right and wrong which is why I started to phase all of this stuff out as I got older.[74]
[73] T 174.
[74] T 175.
C2 agreed that he lied to his parents when they quizzed him about whether the accused was touching him.[75] He went onto say;
I didn’t want to alarm mum and dad that something was going on. I will be honest with you, this is something that if it never came out I would never have told anyone, wouldn’t have let my parents know. I told some close people to help it vent, but this is something that I would have taken to the grave with me, apart from those select few people that I told to get it out of my system. I didn’t want my parents to know, I’m too embarrassed now they know…[76]
[75] T 176.
[76] T 177.
He agreed his parents asked him a number of times over the years about his relationship with the accused and he always lied to them and told them nothing had happened. This included discussions with them when he was in America.
I have reminded myself of the warning mentioned earlier. I have carefully scrutinised C2’s evidence and in so doing I have taken into account the submissions of Mr Sykes.
C2 was an intelligent and articulate witness. He gave his evidence in a thoughtful way without a hint of embellishment. Despite the allegations he showed little or no animosity towards the accused.
I accept that C2 was a truthful and honest witness. I have no hesitation in accepting his evidence beyond a reasonable doubt.
Evidence of complainant C3
C3 was 18 years old at the time he gave evidence. He started playing with the club when he was 10 years of age. He first encountered the accused when he was in the under 14s when the accused took a few training sessions. The under 14 team was not particularly successful. The accused was the coach of the under 16s and Mr Borges was the assistant coach. The under 16 was a better standard which he put down to the intensity of the training under the accused.[77] The accused had high expectations; C3 was very keen.[78]
[77] T 303.
[78] T 305.
C3 said that he attended sleepovers at the accused’s place at Broadview.[79] The accused’s mother did not live there. There was talk about masturbation and “racing” at the sleepovers.[80] He could not remember there being other adults at the sleepovers other than Mr Borges at one.
[79] T 306.
[80] T 307.
The relationship developed to the extent that C3 was seeing the accused two to three times a week outside of training and playing. He was having extra one-on-one training sessions.[81] He was aware that some other boys did as well.[82] The accused would collect him from training and would also pick him up from home. The accused told him that as a player C3 reminded him of C2. He considered the accused as a friend.[83]
[81] T 325.
[82] T 335, T 337.
[83] T 337.
C3 stated that when he was in the under 16s he developed a “chronic overuse” condition of his knee. He asked the accused for assistance. Initially icing and heat was discussed. It progressed to massage whilst at a tournament in Melbourne. The accused offered a massage at his house. It was raised with Mrs C3 who did not have a problem with it. Initially nothing of a sexual nature occurred. The massages progressed to working up the legs to the shoulders and the back and also the hips and groin.[84] He would take his pants off but leave his underwear on.
[84] T 314.
However when C3 had strained a groin muscle the accused started massaging him in the groin area. Initially that was not of a sexual nature although the accused moved his genitals to one side to affect the massage. At this stage he would be massaged with his underwear off.
After the groin strain C3 continued to receive massages. Then the way the accused touched his genitals changed. The accused would play with his genitals and “wobble” his penis. This happened on a number of occasions. C3 didn’t like it but the accused told him just to deal with it and “he just kept playing with my genitals during the massages.”[85] During some of the massages he was aware that the accused would get an erection. The accused would ask C3 to massage him and would make him hold the accused’s penis.[86] The massages were a frequent occurrence during one six month period.[87]
[85] T 316.
[86] T 321.
[87] T 326.
At the time this was happening C3 was in his first year of under 16s which meant that he was 13 turning 14 years of age.
The accused asked C3 to stay over at his house “to make it easier to get massages” and to get to know the accused better.[88] C3 said that when he first started sleeping over at the accused’s house he would sleep in the accused’s bedroom but on a mattress on the floor. The accused eventually asked to him to sleep in the bed with him and he did so. He would try not to fall asleep on the accused’s bed. At first the accused would wear clothes to bed but eventually slept naked. At some stage the accused asked C3 to kiss him on the lips. He did this on more than one occasion.
[88] T 317.
There was talk of masturbation and the accused asked C3 if he would like a “race” with him. There was other evidence in the case that this was a topic of conversation at the team sleepovers. It meant a race to see who could ejaculate first when masturbating. C3 said he didn’t want to but the accused said, “ok not tonight but one time you will.”[89]
[89] T 319.
On another occasion C3’s friend M stayed overnight at the accused’s house with C3. The accused asked C3 to sleep on the bed with him so M could sleep on the floor.
On occasions when C3 was in bed with the accused he would “spoon” C3 and C3 could feel that the accused had an erection.
On one occasion during a massage the accused bit C3’s penis. He bit it in the middle of the shaft.[90] C3 was being massaged and looking at the ceiling. When he felt the bite he looked up and saw the accused’s head rising from his penis. The accused was “just kind of giggling, laughing.” (Count 10)
[90] T 323.
During another massage the accused put his finger up C3’s anus.[91] Prior to that happening there had been some talk about that. The accused would pretend to try and do it but C3 would “clench up”. The accused said, “I’ll get you one day when you least expect it.” C3 felt the whole of the finger go in although it was done quickly. (Count 11)
[91] T 323.
The accused said that he reminded him of C2. He told C3 that if he kept training and playing enough he should be able to go to college like C2.
C3 drew a distinction between wanting to go over for training but not for a sleepover at the accused’s house. He explained; “Because it was getting to a point where he was, I felt, ruining my life and when I was over his house I just didn’t want to be near him any more.”[92]
[92] T 367.
C3 found out that the accused had been arrested when he got a call from the police. He was not expecting a call.[93] Prior to that he had not had contact with Scott Loveday. Nor had he spoken to anyone from the club. C3 was disappointed that after the accused was arrested that he couldn’t have any contact with him.[94]
[93] T 356.
[94] T 364.
It was submitted that Count 10 could not amount to an act of intercourse as defined in the Act. I will deal with that submission in my remarks relating to the elements of the offences.
It was submitted that the absence of recent complaint by C3 was telling in relation to his credibility. He did not tell his parents, his teammates or his best friend and teammate M. He, when questioned by his mother about the friendship with the accused, denied any inappropriate behaviour had occurred. He agreed that that was a lie.[95] He felt embarrassed telling his mother.[96] C3 said he didn’t have a good relationship with his mother although he knew she cared about him.[97] The same happened when his father queried him. He said he had a good relationship with his father.[98]
[95] T 359.
[96] T 362.
[97] T 339.
[98] T 343.
I reject that submission. It overlooks the nature of the relationship between the accused and C3. The accused was his coach and friend and indeed to some extent his mentor. His parents trusted the accused. C3 was only 14 or 15 years of age having extensive attention paid to him (in basketball terms) by his coach. The accused was known to be a very successful coach. C3 was and is a very talented basketball player.
When asked why he didn’t say anything to anybody he said:
AI didn’t want to feel isolated, pointed out, it is the embarrassment that I was letting it happen.
QWhat did you think would occur if you did tell anyone.
AThat they would go to the police.
QWhat impact would that have on your basketball.
AWell, we would have lost (the accused) as a coach. All my individual training, weights and the massages.[99]
[99] T 366.
C3’s evidence of a close relationship with the accused was not really denied. The extent of any “preferential” treatment was disputed. However the accused admitted that C3 stayed over at his place alone and on one occasion at least with M. The accused was not living at his mother’s house at this stage.
C3 is still a young man. He is also an elite basketball player on the threshold of a career. Like C1 and C2 he was quick to acknowledge the skills the accused brought as a coach. He also gave his evidence in a dispassionate way.
I remind myself of the warning mentioned earlier. I have taken into account the criticisms mentioned by Mr Sykes.
C3, whilst younger than C1 and C2 was a thoughtful and articulate witness. He demonstrated, despite his youth, significant maturity in the way he gave his evidence.
I accept that he was an honest and truthful witness. I have no hesitation in accepting his evidence.
Other Prosecution witnesses
I have classified the remaining witnesses into three main groups leaving aside Detective Sergeant Clark.
1.     Boys from the teams.
2.     Parents of the boys (including the complainants).
3.     Officials and other members of the North Adelaide Basketball Club.
1. Boys from the teams
I do not intend to analyse their evidence in any detail. Whilst there was much repetition in the evidence it was necessary for the prosecution to call them to enable me to have as clear a picture as possible about events such as the sleepovers. Not surprisingly there were inconsistencies in the evidence. I am satisfied that all the boys did their best to be accurate but the events occurred, in some cases, 8 or 9 years ago when they were around 14-15 years of age. I accept that they were all truthful witnesses.
However some events were recalled more clearly by some of the boys than others. It is likely that their different stages of maturity and interests affected their recollections.
Without exception they all gave evidence to the effect that the accused was a great coach and I accept that assessment. Some had the accused more involved in the showing of pornography and initiating discussions about masturbation than others. Some could not remember the accused being involved in either.
It is not a matter of me attempting to find a “golden mean” in relation to such evidence. Whilst some of the boys gave evidence that was perhaps more compelling there was, in the end, sufficient disparity between the evidence to cause me some doubt. I must be satisfied beyond a reasonable doubt of facts before I could act upon them on such topics.
In the end the evidence did not allow me to make such findings. Thus in relation to topics such as pornography and sexual discussion I will only act on the conduct admitted by the accused.
2. Parents of the boys (including the complainants)
Mr and Mrs C2 gave evidence. They were impressive witnesses. They both gave their evidence in an honest and forthright manner. Whilst it was difficult for them, given that they had had so much contact with the accused whilst he was coaching their son, they did their best to be as honest and as objective about matters as they could be.
I take into account the criticisms made by Mr Sykes. Obviously they were both aware, in general, of the nature of the allegations against the accused that involved their son. Both were aware of using the benefit of hindsight in interpreting events of the past. They were measured in their evidence and did not display any sign of overt hostility towards the accused. Indeed they were embarrassed by what had occurred, as they believed, under their noses. Clearly they had both had suspicions in relation to the accused and had questioned C2 about his relationship with him. They had received assurances from C2 that everything was fine. They had continued to trust the accused to be alone with their young son.
I accept their evidence.
Mrs C1 gave evidence in general terms about training camps held at their place in the Adelaide Hills. Like Mr and Mrs C2 she had trusted the accused to be alone with their son. Her evidence in relation to C1 was by way of general background and I accept her evidence. The accused did not dispute much of her evidence. She also gave evidence of a time when, having stayed overnight at Mr and Mrs C2’s house, as she was leaving early in the morning whilst everyone was still asleep, observing the accused and C2 sleeping together on the lounge room floor. I accept her evidence about that incident.
I include in this group X the older brother of C2. He had been coached by the accused and apart from an “equivocal” massage incident made no allegations of a sexual nature against the accused. He was an obviously honest and truthful witness. I accept his evidence about observing the accused and C2 in bed together on one occasion.
Mrs M gave evidence about her contact with the accused. Her son M was C3’s best friend. She was an honest and truthful witness and I accept her evidence. I accept her evidence where it is in conflict with the accused.
3. Officials and other members of the North Adelaide Basketball Club
Mr Durant who was and is the vice president of the North Adelaide Basketball Club gave evidence about discussions with the accused relating to the club policy on sleepovers. He was an honest and truthful witness. His evidence was not challenged and I accept it.
Scott Loveday, and Nathan Hawkes were both intelligent and articulate witnesses and both gave cogent evidence. I accept their evidence: it was largely not disputed. There was some questioning in relation to the role that Mr Loveday may have played in the allegations coming to light. That was not followed through. In a very general sense that evidence had some relevance to the question of potential contamination of evidence. I will deal with that later in the judgment. I generally accept the evidence also of Helda Borges who gave evidence relating to the time period involving C3.
Character evidence

In saying these things, I am conscious of the fact that a rejection of the accused’s evidence on central allegations does not prove those allegations. Those allegations need to be considered on their individual merits. Obviously, to convict on any count I would need to be satisfied of the allegations in relation to that count beyond reasonable doubt.
Law
Elements of indecent assault
It is an offence to indecently assault another person.
An indecent assault is an assault accompanied by or committed in circumstances of indecency.
The offence of indecent assault consists of two essential elements, each of which must be proved by the prosecution beyond reasonable doubt before an accused person can be found guilty of the offence.
The first element is assault. An assault is an intentional and unlawful application of force or violence to another person.
The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury.
The application of force or violence must be intentional and an unintended accidental touching, for example, would not be sufficient.
The application of force must be unlawful; that is, without lawful justification or excuse.
The second element is that the assault must be accompanied by, or occur in, circumstances of indecency.
The word "indecency" is a word which is well-known. Obviously, there are many kinds of conduct about which people might differ as to what is and what is not indecent. Some things might be a matter of taste; but, putting those matters aside, there are other kinds of conduct which, by any reasonable, contemporary standards, can only be described as indecent. I must apply the standards of right thinking members of the community in assessing the question of whether the assault was in circumstances of indecency.
Given the age of the complainants in this case they could not consent to an act of indecency. Consent was not an issue in this case.
The DPP must prove each of these elements beyond reasonable doubt in relation to each charge of indecent assault separately. I do not intend to repeat the elements each time I consider a charge of indecent assault.
Attempt
In considering whether there has been such an attempt to do something involves considering whether there was an intention to commit the offence. A person cannot be said to be attempting to do something if he or she does not intend to do it.
To amount to an attempt, the accused must perform some act or acts which are steps towards the commission of the crime which, if they had not been interrupted either by the accused voluntarily desisting or by some other cause, would have resulted in the commission of the crime. Moreover, the law makes a distinction between attempt and mere preparation. To constitute an attempt the act or acts must go beyond mere preparation and must be immediately and not merely remotely connected with the commission of the crime.
Elements of unlawful sexual intercourse
The offence of unlawful sexual intercourse is committed when a person has sexual intercourse with a person of or above the age of 12 years, and under the age of 17 years.
The definition of unlawful sexual intercourse can be broken down into two ingredients:
1. Firstly there must be an intentional act of sexual intercourse.
2.Secondly, the person with whom the accused had sexual intercourse with was under the age of 17 at the time of the sexual intercourse.
In relation to the offence of unlawful sexual intercourse, the state of mind of the complainant in this case is irrelevant.
It is not a defence to a charge of unlawful sexual intercourse if the complainant consented to the sexual intercourse.
The accused has a defence to the charge of unlawful sexual intercourse if he believed on reasonable grounds that the person with whom he had sexual intercourse, was of, or above the age of 17 years. This was not an issue in this case.
The DPP must prove each element of the charge beyond a reasonable doubt in relation to each count of unlawful sexual intercourse separately. I do not intend to repeat the elements of the offence when discussing each charge of unlawful sexual intercourse.
Count 1
Indecent assault
It was alleged that the accused between the 1^st September 1998 and the 30^th day of September 2000 at Sefton Park indecently assaulted C1, a person over the age of 12 years.
Whilst on a sleepover at the accused’s house with complainant C2, complainant C1 alleges that he awoke to feel the accused’s hand rubbing against his hip and then into his boxer shorts and his penis was touched. C1 moved or tried to move and the accused took his hand out of C1’s boxer shorts, placed his hand on C1’s bottom and started to masturbate himself. The complainant was over the age of 12 but under the age of consent.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
There is no doubt here that there was an assault in circumstances of indecency.
I have indicated that I accept C1 as a witness of truth. The evidence of C2 and C3, as indicated, is relevant and admissible in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
In this matter C1 did not actually see the perpetrator. However the inference from the facts that it was the accused is irresistible. The offender was mature and C1 was sleeping in the accused’s bed at the house occupied by the accused. There was no suggestion that any other adult male was present.
I am satisfied that the Crown has proved each element of the charge of indecent assault beyond a reasonable doubt. I find the accused guilty of this count.
Count 2
Attempted indecent assault
It was alleged by C1 that the accused between the 1^st September 1998 and the 30^th September 2000 at his parents’ home at Williamstown attempted to indecently assault C1, a person over the age of 12 years.
C1 alleged that this occurred in C1’s parents’ granny flat. The team had attended their home because it was around about the time of his birthday. He thought something might happen so he prepared himself with two sleeping bags and he fell asleep holding both sleeping bags up to his neck. The accused came in late and tried to touch him over the sleeping bags and pull the sleeping bags down. He felt a hand touching his bottom and penis through the sleeping bags and then the hand worked its way around to the side of the sleeping bags. Once again this was in the dark and he didn’t specifically see the accused.[129]
[129] T 264.
The acts in question clearly establish an intention by the perpetrator to indecently assault C1. I am satisfied beyond a reasonable doubt that an attempt to indecently assault C1 was made.
Once again the overwhelming inference is that the accused was the perpetrator.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
I have indicated that I accept C1 as a witness of truth. The evidence of C2 and C3, as indicated, is relevant and admissible in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
I am satisfied that the Crown has proved each element of the charge beyond a reasonable doubt. I find the accused guilty of this count.
Count 3
Indecent assault
It was alleged that the accused between the 1^st day of October 1999 and the 30^th day of September 2000 at Sefton Park, indecently assaulted C2, a person over the age of 12 years.
The complainant C2 said that on one occasion when he was in bed with the accused, the accused “spooned” into the back of him and he could feel the accused’s erect penis up against him. He tried to move his body away so that he couldn’t feel it any more.[130]
[130] T 103.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
There is no doubt there was here an assault in circumstances of indecency.
I have indicated that I accept C2 as a witness of truth. The evidence of C1 and C3, as indicated, is relevant and admissible in relation to this count in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
I am satisfied that the Crown has proved each element of the charge beyond a reasonable doubt. I find the accused guilty of this count.
Count 4
Indecent assault
It was alleged that the accused between the 1^st day of October 2000 and the 30^th September 2002 at Sefton Park, indecently assaulted C2, a person over the age of 12 years.
The complainant C2 alleged that once again in a “spooning” type position the accused placed his penis into the crack of the anus of C2. There was no penetration. The accused said. “How does it feel” and C2 said that he didn’t like it.[131]
[131] T 104.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
I have indicated that I accept C2 as a witness of truth. The evidence of C1 and C3, as indicated, is relevant and admissible in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
I am satisfied that the Crown has proved each element of the charge beyond a reasonable doubt. I find the accused guilty of this count.
Count 5
Indecent assault
It was alleged that the accused between the 1^st day of October 2000 and the 30^th day of September 2002 at Sefton Park, indecently assaulted C2, a person over the age of 12 years.
C2 alleged that whilst at the accused’s house he was at the head of one end of the bed and the accused had his head at the other end of the bed but they were facing each other. They masturbated with him touching C2’s testicles and he would be touching the accused’s testicles. The accused ejaculated first and went and had a shower.[132] I am satisfied that this count does not lack specificity.
[132] T 111, T 113.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
I have indicated that I accept C2 as a witness of truth. The evidence of C1 and C3, as indicated, is relevant and admissible in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
There is no doubt here that there was an assault in circumstances of indecency.
I am satisfied that the Crown has proved each element of the charge beyond a reasonable doubt. I find the accused guilty of this count.
Count 6
Indecent assault
It was alleged by C2 that between the 1^st August 2001 and the 29^th September 2001 he was indecently assaulted by the accused at Sefton Park. This was alleged to have occurred when C2 had an ankle injury as a result of basketball and the accused was massaging him. The accused starting massaging his ankle then did the other ankle and the entire back of his legs including calves and hamstrings. He then rolled C2 over into the “butterfly position”. The massage continued but during the course of the massage whilst C2 was on his back the accused grabbed the shaft of his penis and moved it up and down and made a noise whilst doing it. [133]
[133] T 107, T 108.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
I have indicated that I accept C2 as a witness of truth. The evidence of C1 and C3, as indicated, is relevant and admissible in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
Again there is no doubt here that there was an assault in circumstances of indecency.
I am satisfied that the Crown has proved each element of the charge beyond a reasonable doubt. I find the accused guilty of this count.
Count 7
Indecent assault
It was alleged that the accused between the 1^st day of October 1999 and the 30^th day of September 2002 at Sefton Park, indecently assaulted C2, a person over the age of 12 years.
C2 alleged that whilst in the shower the accused insisted on being in the shower to rub the baby oil off from a massage. He assisted cleaning off the baby oil and whilst doing so he grabbed C2 on the penis and testicles and made a noise whilst doing it.[134] This was an occasion when he had actually finished in the shower and then had to go back into the shower because the accused wanted to wash oil off him self. [135]
[134] T 108, T 109.
[135] T 132, T 133.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
I have indicated that I accept C2 as a witness of truth. The evidence of C1 and C3, as indicated, is relevant and admissible in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
I am satisfied that the Crown has proved each element of the charge beyond a reasonable doubt. I find the accused guilty of this count.
Count 8
Unlawful sexual intercourse (Section 49(3) of the Criminal Law Consolidation Act, 1935)
It was alleged that the accused between the 1^st day of June 2001 and the 20^th day of April 2003 at Sefton Park, had sexual intercourse with C2, a person under the age of 17 years, by performing fellatio upon C2.
C2 alleged that the accused was lying in bed talking and play wrestling with him. The accused asked if he the accused could put his lips on C2’s penis. Originally C2 said no but the accused made a number of further requests and so he gave in. The accused put his mouth around C2’s penis and held it there for a short time and then took it out and said, “How did that feel”. C2 didn’t like it. This only occurred on the one occasion. C2 was under the age of 17 years at this time.
The act alleged amounts to an act of sexual intercourse.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
I have indicated that I accept C2 as a witness of truth. The evidence of C1 and C3, as indicated, is relevant and admissible in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
I am satisfied that the Crown has proved each element of the charge beyond a reasonable doubt. I find the accused guilty of this count.
Count 9
Unlawful sexual intercourse
It was alleged that the accused between the 1^st day of June 2001 and the 20^th day of April 2003 at Sefton Park, had sexual intercourse with C2, a person under the age of 17 years, by causing C2 to perform fellatio upon him.
C2 alleged that weeks or months after the event alleged in count 8 the accused asked C2 to do the same thing to him to see how that felt. He did not want to do it but eventually he put the head of the accused’s penis in his mouth. He held it there and when he took it out the accused asked him how did that feel. He didn’t like it and that was the only occasion when this happened.
C2 was under the age of 17 years at the time of the allegations. The act alleged amounts to an act of sexual intercourse.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
I have indicated that I accept C2 as a witness of truth. The evidence of C1 and C3, as indicated, is relevant and admissible in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
I am satisfied that the Crown has proved each element of the charge beyond a reasonable doubt. I find the accused guilty of this count.
Count 10
Unlawful sexual intercourse
It was alleged that the accused between the 1^st day of October 2005 and the 31^st day of October 2006 at Broadview, had sexual intercourse with C3, a person under the ago of 17 years, by performing fellatio upon C3.
C3 alleged that between the 1^st October 2005 and the 31^st day of October 2006 the accused whilst massaging him put his mouth around C3’s penis and bit it in the middle of the shaft. [136] C3 at the time of the allegations was under the age of 17 years.
[136] T 323.
I refer to the elements of unlawful sexual intercourse which I do not intend to repeat. A question arose as to whether the biting of the penis as alleged could amount to fellatio. The evidence did not establish that the head of the penis entered the accused’s mouth. I accept the submission by Mr Sykes that I must interpret the evidence of the alleged bite as being from the side of the shaft of the penis. In those circumstances, assuming the truth of the allegation, has fellatio been established?
Section 5 of the Criminal Law Consolidation Act defines sexual intercourse as:
any activity (whether of a heterosexual or homosexual nature) consisting of or involving—
(a)..not relevant
(b) fellatio.
Fellatio is not defined in the act.
The definition of fellatio was considered in the case of Rein v The Queen.[137] It was held that fellatio described any penile penetration of the mouth of a person or any licking of the penis that occurs without such penetration. The merest penetration suffices.
[137] (1995) 63 SASR 503
There is no suggestion in this matter that licking of the penis was involved; what is alleged is a biting of the penis.
To state the obvious, if a bite has occurred some part of the penis must have entered the mouth of the perpetrator. Such an act would in my view be an act of fellatio.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
I have indicated that I accept C3 as a witness of truth. The evidence of C1 and C2, as indicated, is relevant and admissible in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
I am satisfied that the Crown has proved each element of the charge beyond a reasonable doubt. I find the accused guilty of this count.
Count 11
Unlawful sexual intercourse

It was alleged that the accused between the 1^st day of May 2006 and the 31^st day of July 2006 at Broadview, had anal sexual intercourse with C3, a person under the age of 17 years.
C3 alleged that between the 1^st May 2006 and the 31^st July 2006 the accused was giving him a massage. During the course of one particular massage the accused put his finger up and into C3’s bottom.[138] C3 at the time of the allegations was under the age of 17 years.
[138] T 323, T 324.
I have already indicated that I reject the evidence of the accused. However that rejection does not mean that the accused is guilty. I must still look at the evidence produced by the Crown on this count and ask myself if, having taken into account the warning, I am satisfied beyond a reasonable doubt that the accused is guilty.
I have indicated that I accept C3 as a witness of truth. The evidence of C1 and C2, as indicated, is relevant and admissible in relation to this count to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
I am satisfied that the Crown has proved each element of the charge beyond a reasonable doubt. I find the accused guilty of this count.
I find the accused guilty of all counts charged.