R v Botten - [2012] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BOTTEN
Criminal Trial by Judge Alone
[2012] SADC 106
Reasons for the Verdict of Her Honour Judge Bampton
24 August 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Defendant found mentally unfit to stand trial. Trial of objective elements of one count of Unlawful Sexual Intercourse and one count of Persistent Sexual Exploitation of a Child.
VERDICT: objective elements of Count one - Unlawful Sexual Intercourse and Count two - Persistent Sexual Exploitation of a Child not established beyond reasonable doubt. Defendant found not guilty of Count one and Count two and discharged.

R v BOTTEN
[2012] SADC 106

B met the defendant in late 1991, when he rented a room in the defendant’s house at Campbelltown. At that time, he was aged 15 and the defendant was in his late thirties.
The defendant has been charged on the Information dated 20 June 2011 with:
Count one:
Unlawful Sexual Intercourse (section 49(3)) of the Criminal Law Consolidation Act 1935 (the Act) with B between 31 October 1991 and 31 December 1991.
Count two:
Persistent Sexual Exploitation of a Child (section 50 of the Act) against B between 31 October 1991 and 11 February 1993.
The defendant was interviewed by police on 15 September 2010 and denied the allegations.
On 27 September 2010 the defendant attempted suicide by carbon monoxide poisoning resulting in hypoxic brain injury. The neuropsychologist Colin Field provided a report dated 5 April 2011 stating that in his opinion the defendant was mentally unfit to stand trial.
The matter proceeded in accordance with the provisions of Part 8A of the Act.
The defendant elected to have the matter dealt with by a judge alone pursuant to section 269B of the Act.
Pursuant to section 269M(5)(a), having regard to the report of the neuropsychologist Colin Field, dated 5 April 2011, and noting the prosecution and defence agreed, I dispensed with an investigation into the defendant’s fitness to stand trial and pursuant to section 269M(5)(b), recorded a finding that the defendant is mentally unfit to stand trial.
Trial of the Objective Elements
In accordance with section 269MB(1), I then proceeded to hear a trial of the objective elements of the 2 offences alleged in the Information.
Directions
The defendant comes to this court with the presumption of innocence in his favour. He is regarded by law as innocent unless and until I find the charges against him proven. The onus or burden of proving the charges is on the prosecution. The defendant does not carry any onus of proof and to the extent that a defence may be put forward, he does not have to prove it, the prosecution must disprove it.
The prosecution must prove the charges and every element or ingredient of the charges to my satisfaction beyond reasonable doubt.
Each of the two counts must be considered by me separately and I must consider only the evidence that relates to each individual count.
If after full and careful consideration of an individual count, I am unable to decide where the truth lies, the prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict will be not guilty.
Forensic Disadvantage
There was a period of 20 years between the first date specified in Count one and the trial of this matter. The delay in the prosecution of the defendant has resulted in significant disadvantage to him. As such, s34CB of the Evidence Act 1929 applies.
This together with the defendant’s mental state, is likely to have caused the defendant significant forensic disadvantages in being able to challenge the account of B. The forensic disadvantages are that if there had been prompt complaint, the defendant would have been in a position to remember back to the relevant time and to remember what, if anything, happened or he might have been in a position to remember who he was with so as to produce evidence discounting the evidence of B. (Although, as I have already directed myself, the defendant does not have to prove anything).
If there had been prompt complaint, there would have been an opportunity for the defendant to interview potential witnesses or for B to undergo medical examination or for other forensic investigations to be undertaken.
I have taken these potentially significant forensic disadvantages into account when scrutinising the evidence relied on by the prosecution.
Assessment of the Witnesses
In approaching the evidence of the witnesses, it is for me to decide whether I believe the whole or any particular part of the evidence of B or of any witness, whether that witness is honest or not or whether they are reliable or not. I may accept something a witness says but reject other parts. Just because I reject some part of what a witness says does not necessarily mean I reject the whole of what the witness says.
Complaint
As the Information was filed in this court after 28 November 2008, section 34M of the Evidence Act 1929 is applicable. Evidence was led in relation to the initial complaint by B. Evidence of complaint is of assistance in this matter in understanding how the matters came to the attention of the police. It is not admitted as to the truth of what was alleged. As the complaint was made 20 years after the alleged offending, the evidence of complaint is of no assistance in demonstrating consistency of conduct in this matter.
Prior Inconsistent Statements
There is evidence before me that B made statements to the police and to social workers which are inconsistent with the evidence that he gave in this court. The prior inconsistent statements of any witness in a criminal trial are not adduced as proof of the truth of the facts which they purport to assert. Rather, they are put before me to enable me to assess whether I can accept the reliability of evidence given on oath. I must decide this case upon the evidence which was given on oath and subject to cross-examination in court. What a witness has said out of court is not evidence in the case. Prior inconsistent statements go only to the reliability or credibility of evidence given in the court.
If the witness gave sworn evidence that is significantly different from statements made on an earlier occasion, I must exercise caution before accepting the sworn evidence of that witness. It is for me to assess the significance of each inconsistency that I find proven. I must question whether it touches upon an important issue in the case, or whether it is peripheral or incidental. If it does touch on an important issue, I must ask if there is an acceptable explanation consistent with the witness’s sworn evidence being reliable. The more significant the inconsistency, the greater the risk that the sworn evidence will be unreliable.
If the witness denies or equivocates about statements out of court which he is proved to have made, that may also be a factor in assessing his truthfulness in deciding whether I accept his evidence generally.
In this case there were inconsistencies and prevarications in B’s evidence that were of such importance that they led me to being unable to accept his evidence beyond reasonable doubt.
B was cross examined about many matters. There were a number of inconsistencies put to him. Even if those inconsistencies are proved, they do not lead to an adverse credit finding. However, there were inconsistencies during B’s evidence that were of such importance that they lead me to doubt his evidence on the central issues.
I have discussed in these reasons those parts of B’s evidence that are of concern and which when considered together, affect his reliability and credibility to the extent that I am unable to accept his evidence on the specific allegations beyond reasonable doubt.
In assessing B’s reliability and credibility I have of course, taken into account that he was only 15 years old at the time of the alleged events.
I am suspicious that B was the victim of sexual abuse. There are many aspects of his relationship with the defendant he gave evidence of that give me reason to be suspicious of the appropriateness of that relationship.
However the nature of his evidence has led me to be unable to be satisfied beyond reasonable doubt of the allegations of sexual abuse in relation to Counts one and two. That does not mean I have rejected all of B’s evidence. I am suspicious that sexual acts may have occurred, but at the end of B’s evidence I could not be satisfied beyond reasonable doubt of the specific allegations made by him.
Prosecution Case
The main witness for the prosecution was B.
The prosecution also led evidence of initial complaint made by B to a police officer in 2008. The police officer Ms Helbig is now retired from the police. At the time of the initial complaint Ms Helbig was investigating matters not relating to the defendant. During the course of discussions with B about those matters B told her that he had been abused by the defendant.
Evidence was also called from Detective Jaensch relating to the arrest of the defendant. As I stated earlier in these reasons, at the date of the arrest the defendant was not suffering from the acquired brain injury he sustained following the police interview. During the interview the defendant admitted that B had lived with him for some time, but denied the allegations of sexual abuse.
B’s evidence
B was 35 years of age at the time of the trial before me. His date of birth is 11 February 1976. He suffers from some intellectual disabilities and has dyslexia.
The offences were alleged to have occurred from the end of 1991 to 1993, covering a period up to B turning 17 years of age.
I have scrutinised B’s evidence. I have kept in mind the directions that I must give myself. I must be satisfied of each element of the offences beyond reasonable doubt.
Background
B gave evidence about his difficult childhood and teenage years. His evidence on occasion was to some understandable degree, of a general nature lacking certainty. It is to be expected that B would have difficulty remembering in detail when events are said to have occurred in the order of 20 years ago.
B said he ran away from home at the age of 15 and found himself living on the streets, in sheltered accommodation and moving from friend to friend. At the time he met the defendant, he had accommodation at St Johns shelter in the city.
In late 1991, he answered an advertisement that he saw in the Advertiser published on 30 October 1991, advertising a room for rent in a share house at Campbelltown. He made contact with the defendant by calling the telephone number advertised in the advertisement. On the same day as the telephone call, he went to look at the room. He told the defendant that he was homeless and he needed a place to stay. At that time, he was aged 15 and the defendant was in his late thirties. B rented the room for $30 per week.
It is the prosecution’s case that when B was living with the defendant in late 1991, the defendant offered him meals, work and friendship. B became a part of the defendant’s circle of friends and family. B would accompany the defendant to his mother’s house for meals, and he participated in social occasions held at the Campbelltown premises and other places. He was given alcohol to drink on occasions and food to eat. There were also occasions when B went on day trips with the defendant and his friends.
B told me that he remembers two or three other young people living in the house at the same time as he did. When he moved into the house he was told by the defendant that a boy by the name of Trent had previously lived in the room that he was renting and that Trent had committed suicide some months prior. B’s association with the defendant continued up until the time he was 18.
B gave evidence that he lived with the defendant for a long period of time, possibly some years. However, having regard to paragraph 4 of the Agreed Facts, Exhibit P6, B stayed at the St John’s Shelter from about 29 October 1991 to about 15 November 1991 and on 16 April 1992 he was placed into foster care. He was therefore living with the accused for less than 6 months, prior to living in foster care.
B said that whilst he lived with the defendant at Campbelltown he would accompany the defendant when he worked as a disk jockey.
B told me that very soon after he moved in to the Campbelltown house, the first incident that is the subject of Count one occurred.
B said upon their return from a DJ show, he and the defendant were naked in the defendant’s bedroom. The defendant touched B’s penis and masturbated him. B masturbated the defendant and during the course of the night, the defendant inserted his penis into B’s anus.
Following that night, B alleged that the defendant regularly engaged in sexual activity with him. It is these regular sexual acts that allegedly occurred after the first incident that are the subject of Count two – Persistent Sexual Exploitation. It is alleged that these acts of sexual exploitation usually occurred after the defendant and B returned from working at DJ shows. They were mainly on Friday and Saturday nights and usually after he and the defendant had been drinking.
The defendant also ran informal pool competitions at his home amongst friends and boarders. Alcohol would be consumed and after everyone had gone to their rooms, the defendant would engage in sexual conduct with B. The sexual acts described by B included mutual masturbation, mutual acts of fellatio and acts of anal intercourse. The acts of anal intercourse described by B were the defendant inserting his penis into B’s anus and the defendant causing B to insert his penis into the defendant’s anus.
After B moved out of the defendant’s home he maintained contact with him and when he was released from custody as an adult, returned to live with him at Tranmere. B said sexual conduct occurred between him and the defendant when he was an adult living in Tranmere. This is not charged conduct. Significantly B gave evidence of the defendant’s brother-in-law walking into a room and observing sexual conduct between B and the defendant. The defendant’s brother‑in‑law, Gregory Campbell, denied in evidence that he ever saw any sexual conduct between B and the defendant.
The Video Record of Victor Harbor Trip - Exhibit P11
During the search of the defendant’s premises, police seized a video tape which included a record of a trip to Victor Harbor. The portion of the tape that records the Victor Harbor trip is Exhibit P11. It was submitted by the prosecution that it shows the defendant having a prurient interest in B.
It was submitted by Mr English that the video was at best equivocal as to sexual interest and suggested that when placed in its proper context, it was a group of men hamming it up for the camera.
In my view it shows a familiarity with sexual matters which is inappropriate for a boy of the age of B at the time. It is titled “Snow Drop and the Three Little Queens”. The content of the video included vision of B opening his fly and saying the words “open wide, come inside” to the camera.[1] It also included vision of B making a lewd gesture with his tongue whilst his clothed crotch is being filmed by the defendant.
[1] T164.27
Whilst Ex P11 displays an inappropriate relationship between B and the defendant, in the absence of other evidence it is not appropriate that I place great significance or weight on it.
The Evidence Regarding Whether or Not the Defendant is Circumcised
B gave evidence of numerous acts of sexual conduct involving the defendant’s penis. I infer he was in a position to observe the defendant’s penis on numerous occasions over a long period of time including when he was an adult. In his statement to police dated 25 June 2009, he said “Ken’s penis is circumcised. I am not circumcised”.[2] His answer in response to defence counsel’s question about this statement to police was:
“Detective Paul asked ‘What can you remember of his penis” and I have said to him he might not be circumcised, he might be”.[3]
[2] T71.22
[3] T71.16-18
B’s response makes me question his credibility on this topic. Had his evidence been that there were only a few occasions of sexual conduct involving the defendant’s penis, I could accept that he may be mistaken as to whether or not the defendant was circumcised. However having regard to B’s evidence, he would have had the opportunity to observe the defendant’s penis on numerous occasions and would be able to say whether or not he was circumcised.
Further, the evidence of Detective Jaensch was to the effect that he had no note indicating that B had at any stage stated that he was uncertain as to whether the defendant was circumcised or not.[4]
[4] T194.13
B’s evidence about Count 1
B’s evidence regarding Count one gives me cause to question his reliability and credibility. In his evidence in chief, B told me that intercourse occurred while he was lying on his back with his legs in the air and that the defendant ejaculated on his stomach. In his police statements dated 25 June 2009 and 16 May 2011, he said that intercourse occurred while he was on all fours with the defendant ejaculating on to his back.[5]
[5] T61-62
B told me that he was absolutely petrified through the whole of this ordeal. He said he did have an erection and ejaculated. It was submitted by Mr English that being petrified in a state of absolute fear and terror is not conducive to a state of sexual excitement and that this should cause me to question B’s evidence.
B’s evidence about when this alleged event took place is also of concern. In cross examination and examination in chief, B told me that the incident, occurred after he had been assisting the defendant in his DJ business. He said that they came home, that the defendant was drunk and that he, B, helped the defendant into his bedroom and then lay on the bed and then the incident occurred. This is inconsistent with what B told a Families SA social worker as follows:
On 27 March 2009 B was interviewed by Helen McEwin, a social worker with Families SA. During the interview B stated that when he was 15 he moved into Ken Botten’s house at 37 Hill Street, Campbelltown. B told Ms McEwin that after three weeks Ken Botten told him he was gay. B also stated that he was sexually abused by Ken Botten for the first time after an 8 ball party at the Campbelltown address.[6]
[6] Paragraph 4 of the Statement of Agreed Facts, Exhibit D12
B told the social worker that the first episode of sexual abuse occurred after an eight ball party at Campbelltown, whereas he said in evidence it was after a DJ job.
B also told me that following mutual masturbation during this first episode of sexual abuse that the defendant left the room and returned with a towel inviting B to clean himself up and then the towel was deposited on the floor.[7]
[7] T31
In his statement dated 16 May 2011, B said that the defendant told him to go and get a towel and to come and clean up. In his evidence, B originally denied that he said this, but when his statement to police was put to him, he agreed that he said it. When asked to explain the inconsistency he said:
No, maybe I got confused on what occasion this actually happened.[8]
He then said:
It did happen, but probably not on the first occasion, no.[9]
[8] T69.18
[9] T69.33
When Mr English put to him his version of events told to police on 25 June 2009 to the effect that the defendant made him masturbate and turned him over and put his penis inside his anus, B said he was not sure whether this happened on the first occasion. I then asked B:
Q     Are you saying this happened on the first occasion.
A     No.
Q     So you are not sure when this happened.
A     That’s right.[10]
[10] T83.26-29

He agreed with Mr English that he told police that on the 25 June 2009, that it had occurred on the first occasion and then he agreed that it was wrong because it happened on another occasion.
In his statement to police on 16 May 2011 B said that the defendant forced him onto the bed on this first occasion. This is inconsistent with the scenario he described in evidence about helping the defendant who was drunk into his bedroom and lying down next to him.
In cross examination B agreed that there was a difference between the two scenarios. Mr English asked him in relation to his first statement:
QIn that statement did you tell the police that Ken made you lie on the bed.
A Made me lie on the bed?
QYes, on the first occasion that he has molested you, the occasion that we are talking about after you’ve come back from the DJ’ing party, did you tell the police in that statement that Ken made you lie on his bed.
AI don’t think so.
QBecause on your evidence that would be wrong, wouldn’t it, because you are the one who has laid Ken on the bed after you’ve helped him in.
AThat’s right, yes.
QBut you don’t think that you said that to the police.
AI can’t remember.
QDid you say this to the police “The first time something happened was when I was in his bedroom, it was night-time. Ken made me lie on the bed”.
AIf that’s what I said.[11]
……
QOkay, so on 25 June when you gave your statement, 2009, when you made your statement it would be wrong to say that “Ken made me lie on the bed”.
A He pat the bed next to me, so that’s an indication of laying next to him.[12]
[11] T59.18-35
[12] T60.11-15
When it was put to B by Mr English that he had not said anything in his statements about drinking in the lounge room and then Ken saying lets go to bed, B said:
No, there’s a lot of things I haven’t said in the statements as well.[13]
[13] T60.26
B also said that between the acts of mutual masturbation and the anal intercourse there was a period when he went to sleep. He made no mention of sleep in his police statements.
It was put to B that there was no separation in time between the masturbation and the anal intercourse in his police statements. B’s answer was that he probably forgot to put it in the statement.[14]
[14] T82.37
Other Concerns About B’s Evidence
B said that he became aware that the defendant was a homosexual on the very first day he met him and he gave evidence that he said to him, “you’d better not try it out on me”. When he spoke to the social worker Helen McEwin on 27 March 2009, he said that he had been living with the defendant for about three weeks before the defendant told him that he was gay.[15]
[15] Paragraph 4 of Statement of Agreed facts Ex D12
B’s evidence about being fearful of the defendant is of concern. He said that he kept coming back to see the defendant because he wanted to check up on him and make sure he wasn’t going to come after him. There is no evidence, apart from the allegation of sexual misconduct that the defendant was violent towards B.
It is an agreed fact that the Department for Community Welfare (DCW) records, record B telling his social worker “Ken was a warm and kind person”, and that he showed a photograph of the defendant to the social worker.[16] B said he probably said the defendant was warm and kind out of fear.[17]
[16] Paragraph 2 of the Statement of Agreed facts D12
[17] T108.32
Paragraph 3 of D12 referred to another notation in DCW records that on 12 August 1992, B asked for permission to visit a friend called Ken and stay overnight if invited. This is at odds with his evidence about being terrified of the defendant.
I take into account the prosecution’s submission that the relationship was complex as were the emotions and feelings that B was experiencing.
There was no evidence given by B that after he left the defendant’s premises that the defendant was constantly contacting him. In fact all the evidence appears to be that contact was initiated by B.
Another area of concern regarding B’s evidence is the fact that he made a complaint about three people, including his mother, and it was not until 12 November 2008, that he made any mention of alleged abuse by the defendant.
In 2006, B contacted the police and complained about a man called Colin Robson who allegedly molested him when he was aged between 10 and 14. He gave evidence that the abuse he suffered at the hands of Mr Robson was similar to the abuse he suffered at the hands of the defendant. B said he could clearly delineate between the two alleged abusers.
B gave evidence that when he went with the defendant to his bedroom on the first occasion, he didn’t know what the defendant was up to in terms of sexual overtures. This is in contrast to his evidence that he had been subject to sexual abuse at the hands of Colin Robson between the ages of 10 and 14 and that he had told the defendant not to try anything on him when he found out the defendant was gay.
In 2006, despite having regular contact with police about Colin Robson and despite telling police what Robson had done and how severely it had affected his life to the point of attempting suicide, B did not mention the defendant. He discontinued his complaint against Robson on 30 September 2006 and then in September 2008, he made further allegations when he spoke to Helen McEwin from Post Care Services Families SA. He made a complaint about three individuals. He complained about Colin Robson as well as an unidentified man who he said performed fellatio on him and took photographs of him having sex with his wife. He also made allegations about physical abuse at the hands of his mother and yet made no mention of the alleged abuse by the defendant.
B’s reason or explanation for not making a complaint about the defendant until 2008, was that he couldn’t deal with two cases at once. B also said he did not know why he didn’t complain about the defendant.[18]
[18] T132.18
B’s evidence that he could only deal with one complaint at a time is at odds with the fact he made a complaint about three different people in September 2008, two of whom he alleged sexually abused him.
After B was informed that Robson was dead and investigations into the unidentified man proved fruitless, B made his complaint about the defendant.
In the defendant’s record of interview, he made reference to his relationship with B ending acrimoniously over an issue of money owed by the defendant to B. B’s evidence about this topic was that there was some issue about money but he couldn’t remember the details.
It was submitted that another reason for B’s late complaint might be that B was because he had been rejected by the defendant after the argument about money and told to never come back.
B gave evidence about his mental health issues. He told me he had at one stage been diagnosed as schizophrenic and that he had had paranoid and delusional thoughts.
I also heard evidence that in 1993 B told police that he had found a knife at a murder scene in relation to the investigation of the murder of Sheree Turner. He was convicted of making a false report to police on 22 September 1993. However in evidence, whilst agreeing that he was convicted of that offence, he said that he didn’t lie about the knife, that he found it at the scene and that he reported it.
The foregoing concerns about B’s evidence have the combined effect of causing me to be doubtful as to his reliability and where the truth lies.
Defence Case
As stated above the defendant denied the allegations in his record of interview.
Campbell
The defendant’s brother-in-law gave evidence. Mr Campbell’s evidence is significant, not with respect to the charged acts but with respect to an event that B described to police in his evidence when he was over the age of 18. He gave evidence that on that occasion he had become drunk and that the defendant was having sex with him and Mr Campbell came into the room and saw what was going on.
Mr Campbell gave evidence that he was a frequent visitor with his family to the defendant’s house when he was living at Campbelltown and at Tranmere. He recalled B. He gave evidence that he attended the pool competitions arranged by the defendant. He said that whilst B was living at the Campbelltown premises, he did not ever see any untoward sexual conduct between the defendant and B. He gave evidence that the defendant was homosexual, that he never flouted his homosexuality “nor did he put it into the closet”.[19] He wasn’t openly gay to most people or a lot of his family, but certainly anyone who got to know him, got to know he was gay.
[19] T211.7
Mr Campbell was asked whether there was an occasion when he entered the room in the Tranmere house when he found the defendant and B engaged in sexual activity. He said absolutely not.
I accept Mr Campbell evidence. His evidence is another factor that makes me doubtful about where the truth lies.
Conclusion
This is a case that depends entirely upon the evidence of B.
I am not satisfied beyond reasonable doubt that the incident alleged in Count one took place, particularly having regard to the confusion of B in evidence about how the alleged incident came about, the position he was in and how he came to be on the bed. I therefore cannot find that this incident occurred beyond reasonable doubt.
Whilst I must consider each count separately, my concerns about the reliability and credibility of B’s evidence with respect to the first count cause me to question and scrutinise with care the evidence of B with respect to Count two.
It is difficult to understand or accept B’s evidence about numerous matters. In particular, his evidence with respect to Count one, his evidence about whether or not the defendant was circumcised, his failure to mention his allegations against this defendant during his conversations with social workers and the police and his evidence with respect to the defendant’s brother-in-law walking in while the defendant was having sex with him.
Having regard to all the areas of concern I have outlined and the evidence of Mr Campbell, I am unable to decide where the truth lies.
In light of my concerns with respect to B’s evidence, I am unable to accept his evidence as to the specific allegations beyond reasonable doubt. I emphasise that this does not mean I reject his evidence totally. I accept aspects of B’s evidence about the relationship with the defendant. Having regard in particular to the video of the trip to Victor Harbor there was undoubtedly an inappropriate relationship between B and the defendant. I am suspicious that he has been the victim of sexual abuse and may well have been involved in sexual activity with the defendant.
However, I cannot exclude as a reasonable possibility that the conduct which is the subject of Counts one and two did not occur.
The defendant is entitled to the benefit of the doubt.
I am not satisfied beyond reasonable doubt that the objective elements have been established.
Accordingly pursuant to s269MB of the Act I find the defendant not guilty of the offences and discharge him.