R v C, G
[2013] SADC 16
•22 February 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, G
Criminal Trial by Judge Alone
[2013] SADC 16
Reasons for the Verdicts of His Honour Judge Cuthbertson
22 February 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
- UNLAWFUL SEXUAL INTERCOURSE - PROCURING AN ACT OF GROSS INDECENCY - PERSISTENT SEXUAL ABUSE
Trial by Judge alone.
Accused charged with nine Counts of Unlawful Sexual Intercourse, one Count of Procuring an Act of Gross Indecency and three Counts of Persistent Sexual Abuse.
Five separate complainants. Interadmissibility of evidence of other complainants. Underlying unity. Whether evidence of other complainants and other discreditable conduct must be proved beyond reasonable doubt before it can be used in case against a particular complaint. Onus of proof of uncharged acts.
VERDICT: Guilty on all Counts
Evidence Act, 1929 s 34M, O, P, Q, R & S, referred to.
R v Liddy (2002) 81 SASR 22; R v Nieterink (1999) 76 SASR 56, discussed.
HML v The Queen (2008) 235 CLR 334; Shepherd v R (No 5) (1990) 170 CLR 573; B v The Queen (1992) 175 CLR 599, considered.
R v C, G
[2013] SADC 16Introduction
The Defendant stands charged with nine Counts of Unlawful Sexual Intercourse, three Counts of Persistent Exploitation of a Child and one Count of Procuring an Act of Gross Indecency.
The charges are as follows:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
C, G between the 26th day of December 1993 and the 31st day of January 1994 at Salisbury, had sexual intercourse with J, a person of the age of 13 years, by causing her to perform an act of fellatio upon him.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
C, G between the 26th day of December 1993 and the 31st day of January 1994 at Salisbury, had sexual intercourse with J, a person of the age of 13 years, by inserting his penis into her vagina.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
C, G between the 26th day of December 1993 and the 31st day of January 1994 at Salisbury, had sexual intercourse with J, a person of the age of 13 years, by inserting his penis into her anus.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
C, G between the 26th day of December 1993 and the 31st day of January 1994 at Salisbury, had sexual intercourse with J, a person of the age of 13 years, by inserting his penis into her vagina.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
C, G between the 26th day of December 1993 and the 31st day of January 1994 at Salisbury, had sexual intercourse with N, a person of the age of 13 years, by inserting his penis into her vagina.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
C, G between the 26th day of December 1993 and the 31st day of January 1994 at Salisbury, had sexual intercourse with N, a person of the age of 13 years, by causing her perform an act of fellatio upon him.
Seventh Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
C, G between the 26th day of December 1993 and the 31st day of January 1994 at Salisbury, had sexual intercourse with N, a person of the age of 13 years, by inserting his penis into her anus.
Eighth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
C, G between the 26th day of December 1993 and the 31st day of January 1994 at Salisbury, had sexual intercourse with N, a person of the age of 13 years, by inserting his penis into her anus.
Ninth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
C, G between the 26th day of December 1993 and the 31st day of January 1994 at Salisbury, had sexual intercourse with N, a person of the age of 13 years, by inserting his penis into her vagina.
Tenth Count
Statement of Offence
Procuring an Act of Gross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
C, G between the 26th day of December 1993 and the 31st day of January 1994 at Victor Harbor, committed an act of gross indecency with N, a person under the age of 16 years.
Eleventh Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
C, G, over a period of not less than three days between the 1st day of May 1987 and the 10th day of May 1994 at Hillbank and other places, committed more than one act of sexual exploitation of D, a person under the age of 17 years, by touching D’s penis, placing his penis between D’s thighs, inserting his finger into D’s anus through his clothing and masturbating in front of D.
Twelfth Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Ibid).
Particulars of Offence
C, G, over a period of not less than three days between the 1st day of January 1996 and the 31st day of December 2000 at Paralowie, committed more than once act of sexual exploitation of A, a person under the age of 17 years, by touching A’s penis, and causing his penis to touch A whilst giving him a massage.
Thirteenth Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Ibid).
Particulars of Offence
C, G, over a period of not less than three days between the 8th day of January 1998 and the 8th day of January 2002 at Paralowie, committed more than one act of sexual exploitation of B, a person under the age of 17 years, by touching B’s penis and placing his penis in between B’s legs.
There are five separate complainants. They are all relatives of the Defendant.
Elements of offences
The elements of the charges of Unlawful Sexual Intercourse are as follows:
1 That the Defendant had sexual intercourse with the complainant. The insertion of the penis into the vagina, mouth or anus constitutes sexual intercourse.
2 That it was a voluntary act.
3 That it was an intentional act.
4
That the complainant was under the age of 17 years at the time of the act.
The elements of the offence of Procuring an Act of Gross Indecency are as follows:
1 That the Defendant voluntarily and intentionally procured the commission of an act by another person.
2 That the other person was under the age of 16 years.
3 That the act procured was an act of gross indecency.
4 That the act occurred with the Defendant or in the presence of the Defendant.
The elements of the offence of Persistent Sexual Exploitation of a Child are as follows:
1 That the Defendant is an adult person.
2 That the Defendant committed more than one act of sexual exploitation. An act of exploitation is an act which if it were able to be properly particularised could be the subject of a charge of a sexual offence.
3 That the acts must have occurred over a period of not less than three days.
4 That the acts must have occurred in respect of a child under the prescribed age. The prescribed age is 17 years.
Onus of proof
There is a presumption of innocence and the Defendant is regarded as innocent unless or until guilt has been proved beyond reasonable doubt.
Burden of proof
The burden of proving the charges lies wholly upon the prosecution; the Defendant does not have to prove anything.
Separate consideration of counts
The Defendant is charged with separate Counts and each must be considered on its own merits. A verdict of guilty or not guilty in relation to one Count does not necessarily mean that there must be a verdict of guilty or not guilty in relation to the other Counts.
I am not to reason that because the Defendant is guilty of a particular Count or it is proved against him that he has committed a particular uncharged act that therefore he has a propensity to commit sexual offences against that complainant or any other complainant and is guilty on that account of any particular offence.
Complaint evidence
Evidence of various complaints made by various complainants has been admitted in the trial.
I note that such evidence is admitted for the following purposes,
I To inform me as to how the allegation first came to light, and;
II As evidence of the consistency (or otherwise) of conduct of the alleged complainant and it is not admitted as evidence of the truth of what was alleged.[1]
[1] See s 34M(4) Evidence Act, 1929
Complaints that are inconsistent with the complainant’s case or that demonstrate inaccuracies may be used to cast doubt on the case put forward by the complainant.
I direct myself that there may be varied reasons why the complainant, in a sexual assault offence, has made a complaint at a particular time or to a particular person but that it is a matter for me to determine the significance, if any, of the evidence in the circumstances of this particular case.
Evidence of complaint and earlier accusation as rebuttal of recent invention
In this particular case there is an issue as to whether the complainants may have made their respective complaints as part of an arrangement with others to make false allegations or whether they were somehow influenced by the fact and content of the complaints of other complainants. Evidence of complaint is also admissible in this case as evidence rebutting the suggestion of a joint conspiracy to recently invent an accusation.
If a particular complainant is proved to have made an allegation or complaint against the Defendant, and thus had in his or her mind the idea of sexual impropriety by the Defendant against that particular complainant, and if that idea was in that complainant’s mind long before the complainant made the complaint leading to these proceedings being instituted, then it would be less likely that that particular complainant had conspired with other persons at a date after the allegations were made to falsely accuse the Defendant.
Further any complaint may be used as casting doubt on the credibility of the particular complainant if it is a prior inconsistent statement whether it is an initial complaint or not and if it shows lack of consistency. In this regard I bear in mind that a failure to make or a delay in making a complaint in itself is not of probative value in relation to a complainant’s credibility or consistency.
Defendant did not give evidence
In this matter the Defendant did not give evidence. This is not to be taken as any evidence of guilt.
The prosecution must still prove its case beyond reasonable doubt.
Use of screen and court companions
Several of the complainants and witnesses who gave evidence for the prosecution used a one-way screen or had a Court companion in Court during the time they gave evidence. I am to draw no adverse inference against the Defendant by the use of a screen and Court companion.
Forensic disadvantage
In this matter the complainants all complained late. The consequence of this is that the police were unable to investigate these offences at the time they were occurring.
The Defendant may well have been disadvantaged in that evidence that might have been available to demonstrate the impossibility or the improbability of allegations of a particular complainant may not now be available due to the effluxion of time.
I take into account in considering the evidence in this matter, the possibility that evidence may have been denied the Defendant on account of the effluxion of time and I must weigh it in the balance when considering whether charges have been proved beyond reasonable doubt and I must scrutinise the evidence of the complaints with special care for that reason.
Defendant’s plea to Count 5
The Defendant has pleaded guilty to Count 5 that alleged that he committed Unlawful Vaginal Sexual Intercourse against N.
The defence say that I can take that into account being a sole incident which may be a possible explanation for the payment of the $1,000 by the Defendant to N and as a possible explanation for the presence of blood on N & J and the ensuing discussion about N having her period.
On the prosecution case it is evidence corroborating the evidence of N in respect of all Counts in which N is the complainant.
The plea is not, however, evidence of the particulars of the offence pleaded to.
The fact of the plea confirms no more than that the elements of the offence have been admitted. Because the Defendant has, by his plea, admitted sexual intercourse I can use the evidence to establish that, at the relevant time, the Defendant had a sexual passion or interest towards N.
To that extent it is corroborative evidence in relation to the various counts in respect of which N is the complainant. It is not to be used, however, to reason that the Defendant is of bad character and for that reason is more likely to have committed any of the offences or that he has a propensity to sexually molest an underage person and therefore is more likely to have committed the offences in question.[2]
[2] See B v The Queen (1992) 175 CLR 599
Uncharged Acts
In relation to each of the complainants, evidence has been led of uncharged acts. That is acts that are criminal but which are not the subject of specific charges.
This evidence is admissible together with evidence of other charged acts against the same complainant to show the nature of the relationship between that complainant and the Defendant, as evidence that the Defendant had a sexual interest in that particular complainant and to assist to explain why the Defendant might have acted confident that a particular complainant would not complain or create a scene and brazenly in circumstances where his wife might readily have discovered him in flagrante delicto.
In my view such evidence is discreditable conduct within the meaning of Division 3 of Part 3 of the Evidence Act.
In my view the probative value of the evidence admitted for the use I have discussed substantially outweighs any prejudicial effect it may have on the Defendant and has strong probative value having regard to the issues arising at trial.
I am confident that I can keep sufficiently separate and distinct the permissible use of this evidence from any impermissible use so as to remove any appreciable risk of the evidence being used for an impermissible use.
For reasons that I will discuss, I am of the view that the evidence need only be proved on the balance of probabilities before I can use it provided that at the end of the day I can be satisfied beyond reasonable doubt of the particular elements of the particular offence under consideration.
In my view this is ordinary circumstantial evidence and provided it passes the test for admissibility created by s 34P(2) of the Evidence Act proof is to be measured in accordance with the principles in relation to proof of circumstantial evidence. It is not evidence which is an indispensible link in a chain of proof of guilt that requires proof beyond reasonable doubt pursuant to the principles in Shepherd’s case.[3]
[3] Shepherd v R (No 5) (1990) 170 CLR 573
Indeed, many of the allegations of complainants in sexual cases about their relationship with the alleged perpetrator can never amount to anything beyond mere assertions of the complainant that they occurred. Of necessity, they usually cannot be corroborated or given with details as to surrounding circumstances.
I have in mind things like a passionate kiss or a sexually motivated touching on a private part. To demand proof beyond reasonable doubt of such allegations before they can be put in the melting pot of surrounding circumstances to determine whether a charge can be proved beyond reasonable doubt would have the consequence that such evidence could never be established beyond reasonable doubt and hence could never be used by the trier of fact in determining guilt.[4]
[4] See the discussion by Crennan J in HML v The Queen at pp 481-491
It is no answer to merely say that the trier of fact can use all the surrounding circumstances to determine whether such an uncharged act occurred. It would be met by the same objection that any discreditable act to establish any other discreditable conduct would need to be proved beyond reasonable doubt before it could be used.
Fortunately, as I will indicate, the matter has been resolved by the discreditable conduct legislation itself and in particular s 34R(2) of the Evidence Act.
The allegations
The complainants are as follows:
Two sisters, identical twins J and N, who lived in Sydney but spent two weeks in the beginning of 1994 staying in Adelaide with the Defendant
Two brothers A and B who would spend time on the weekends staying over at the Defendant’s premises so as to assist him early on the Sunday morning at a “Trash and Treasure” market at Gepps Cross where the Defendant sold imitation flowers.
One D who also would stay over at the Defendant’s premises assisting him with the imitation flower selling business at the “Trash and Treasure” market on the Sunday morning.
A, B and D, whilst considerably younger than the Defendant, have a grandparent who is the great grandparent of J and N, and is also the grandparent of the Defendant.[5]
[5] See Family Tree – Exhibit P1
It was not until long after the alleged events that complaints were made to the police permitting the institution of criminal proceedings against the Defendant.
Allegations in relation to J
In early 1994, J and her twin sister N, who lived in Sydney, went to stay for two weeks in Adelaide[6] with the Defendant and his wife. They lived at Salisbury North[7] and were aged 13 at the relevant time.[8]
[6] See T110
[7] See T252
[8] See T17
They were well treated by the Defendant. Upon arrival there was a gift basket awaiting them.[9] They were permitted to drink alcohol, smoke cigarettes and stay up late.[10]
[9] See T29
[10] See T30
The sleeping arrangements were that there was a set of bunk beds in one bedroom and a separate bedroom with a double bed.[11]
[11] See T29
J and N would take it in turns in sleeping in the double bed while the younger sister K would always sleep in one of the bunk beds.[12]
[12] See T29
The Defendant was born in February 1966 and hence was 27 years old at this time.
The first occasion anything happened, of a sexual nature, was when they were in the swimming pool. The Defendant said he could help J breath underwater and he placed his mouth over hers and breathed into her.[13]
[13] See T31
One night when they were staying the Defendant’s wife had gone to bed and the girls and the Defendant stayed up to watch a movie “The Exorcist”.[14] N fell asleep in the lounge room.[15] The Defendant performed a number of sexual acts upon J. He asked her to perform fellatio on him (Count 1). He inserted his penis into her vagina (Count 2) and he inserted his penis into her anus (Count 3). N was asleep while these incidents occurred.[16]
[14] See T33
[15] See T35
[16] See T35,40
Later, during the holiday, the Defendant and his wife were in the process of moving house. J was assisting and went with the Defendant alone to a house that was unfurnished.[17] They went to the bedroom of that house and the Defendant removed her pants and underwear, took his clothes off and inserted his penis into her vagina (Count 4).[18]
[17] See T42
[18] See T43
There were also a number of uncharged acts alleged by J.
Allegations in relation to N
When staying in Adelaide with her sister J at the Defendant’s house N was in the bedroom one night when the Defendant came in and asked her if she was sleeping. He took her to the lounge room where they watched TV. On this night J was sharing with K in the bunk bedroom. This was the night after “The Exorcist” and “Poltergeist” had been shown on the television.[19]
[19] See T119,120
The Defendant started to touch her in the area of her chest and then on her vagina.[20]
[20] See T120
He inserted his penis into her vagina as he was positioned behind her (Count 5). He also inserted his penis into her anus (Count 7) and requested her to perform an act of fellatio upon him (Count 6).[21]
[21] See T120-123
Following that occasion the Defendant asked her to accompany him to his garage where he engaged in sexual activity with her.[22] On the first occasion he took her to the garage he made her bend over a weights table that was in the garage and he inserted his penis into her anus (Count 8).[23] The following day he took her to the garage and inserted his penis into her vagina (Count 9).[24]
[22] See T126
[23] See T127
[24] See T128-129
On one occasion while camping at Victor Harbor, the Defendant was behind N and rubbed her thigh close to her vagina. He also placed her hand on his penis and made her masturbate him.[25] That is the alleged act of the Procuring of an Act of Gross Indecency (Count 10).
[25] See T134-135
Allegations in relation to D
D is currently 34 years of age having been born in 1978.[26] In 1987 his father passed away[27] and the Defendant became more involved in his life and started to take him on outings and activities of a kind that a father might do for a young boy.[28]
[26] See T244
[27] See T244
[28] See T244-245
D began to sleep over at the Defendant’s house.[29] At the time the Defendant lived with his parents.[30] Not long after he started to stay over, the Defendant started to engage in sexual activity with D including masturbating in front of him, ejaculating onto him, masturbating him and asking D to masturbate the Defendant.[31]
[29] See T245
[30] See T245
[31] See T247-248
The Defendant also had a practice of lying behind D on the bed and placing his penis in between D’s thighs close to the groin area and simulating sexual intercourse.[32]
[32] See T250
The Defendant also played what he called “a game” with D when he would come up behind him and insert his finger into D’s anus from outside his clothes.[33]
[33] See T258-259
The Defendant moved out of his parents’ house and into a house he shared with a man called John then he moved into a house with his wife, K. D would stay over at each of these premises and the same type of sexual activity would occur.[34]
[34] See T252-253
Count 11 refers to the above activity.
Allegations in relation to A
A started to stay with the Defendant when he was about 8 or 9 years old.[35] His eighth birthday was in April 1996. He would accompany the Defendant to the Gepps Cross markets early on Sunday mornings and would stay over on Saturday night in order to do so.[36] He would go motorbike riding with the Defendant[37] and on occasional outings. A also described that the Defendant would buy him presents of significant value.[38] He would also give him cigarettes and alcohol.[39]
[35] See T286-288
[36] See T289
[37] See T287-288
[38] See T324
[39] See T325
Sexual activity is alleged to have commenced soon after A started sleeping over at the Defendant’s house and it continued for the whole period of time he would sleep there.[40] Sometimes he and his brother B would both stay over and on those occasions no sexual activity would occur. Sexual activity would commence by the Defendant giving him a massage. During the course of the massage the complainant would be naked and the Defendant would touch his penis and masturbate him. On some occasions he masturbated A until he ejaculated.[41]
[40] See T291-292
[41] See T294
On one particular occasion he was lying naked on his stomach while the Defendant was massaging him, straddling him from behind.[42] A could feel the Defendant’s penis against his lower back.[43]
[42] See T292
[43] See T293
On some occasions the Defendant would try to get A to touch his penis but A would refuse.[44]
[44] See T295
After the Defendant had moved to Western Australia there was an occasion when he came back and stayed with A’s family for a family funeral.[45] A alleges that this occurred when he was about 12 years of age.[46] On this occasion the Defendant nudged him and told him to come outside for a smoke.[47] He went outside and had a cigarette, went back into the lounge room and the Defendant started massaging him on his back and then masturbated him.[48]
[45] See T298
[46] See T298
[47] See T298
[48] See T299
He slept on a mattress in the lounge room and A also stayed in the lounge room on another mattress. The mattresses were some distance apart but in the morning A’s father came out to find both mattresses pushed together[49] and the Defendant and A sitting in the kitchen. The relevant charge is Count 12.
[49] See T532
A said he woke up and his father was “freaking out” and said to the Defendant something like “What’s he doing out here?”[50]
[50] See T300
Allegations in relation to B
A had a younger brother B.[51] When he turned about 8 or 9 years of age B too started staying over at the Defendant’s premises on Saturday nights in order to go with him on Sunday mornings to the markets.[52] When he stayed over the Defendant would engage in sexual activity with him.
[51] See T369
[52] See T370
The sexual activity would commence with B being given a massage by the Defendant and during the course of it the Defendant would touch B’s penis and masturbate him. He would also lay behind B, place his penis between B’s thighs and simulate sexual intercourse.[53]
[53] See T374-376
Both boys were offered treats such as cigarettes or alcohol and allowed to stay up late and not held to the stricter rules of their parents.[54]
[54] See T372
Inter-admissibility of evidence of complainants on basis of underlying unity
Counsel for the Defendant did not object to the joinder of all the counts relating to the various complainants on the one Information nor to the hearing of the counts in relation to the separate complainants together.
Counsel, however, strongly objected to the assertion by the prosecution that the evidence of the counts relating to the various complainants was interadmissible in relation to the other complainants.
The question of the admissibility of what is now described as discreditable conduct evidence is governed by s 34P of the Evidence Act, 1929.
The principle is set out in s 34P(2) of the Evidence Act as follows:
34P—Evidence of discreditable conduct
(1) ...
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the Defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the Defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
Counsel for the Defendant argues that the sole use that may be made of the evidence concerning other complainants is that it tends to demonstrate collusion or concoction between them.
The prosecution, on the other hand, argues that the evidence in relation to the other complainants is admissible in respect of the case in relation to the particular complainant under consideration on the basis that there is an underlying unity in the allegations made by the five complainants all independently. “[The] probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred”.[55] Collusion has been disproved beyond reasonable doubt, they assert.
[55] See Pfennig v The Queen (1995) 182 CLR 461 at 482, per Mason CJ, Deane and Lawson JJ
It is said by the prosecution that the following factors demonstrate the underlying unity between the various allegations of the various complainants.
1 Use of enticements and gifts including alcohol, cigarettes, presents, outings and lax house rules.
2 The complainants all being invited to spend time at the Defendant’s home overnight thus creating the opportunities.
3 The age of the complainants being 8 to 13 and pre-adolescent.
4 The common allegation of commission of anal sexual intercourse, simulated anal sexual intercourse and placing the penis between the thighs of the complainants from behind.
5 Masturbation in front of the complainant, and requesting the complainant to touch or masturbate the Defendant.
6 The use of massages in relation to the male complainants so as to create the opportunity for sexual contact.
It is to be remembered that it is not necessary that the evidence demonstrates “striking similarity”. It is enough that the similarity be sufficient to make the complaints by the various complainants sufficiently similar as to be inexplicable absent collusion.[56]
[56] See discussion of the topic in R v Liddy (2002) 81 SASR 22 at 42-46 per Mullighan J
In my view the descriptions by the various complainants of allegations all against the Defendant are inexplicable unless there has been collusion or concoction between them or that the allegations are true or coincidence.
The conduct alleged by the various complainants is discreditable conduct within the meaning of s 34P of the Evidence Act.
I am satisfied, however, that the evidence of the five complaints admitted for use in considering the improbability that five separate complainants would make similar allegations against the same Defendant is a permissible use within the meaning of s 34P of the Evidence Act and that the probative value of that evidence for that use substantially outweighs any prejudicial effect it may have on the Defendant. Indeed there is no prejudicial effect because I will not use the evidence to reason that the Defendant is more likely to have committed the offences because he has engaged in the discreditable conduct alleged by the other complainants or in any other impermissible manner.
In my view, in the nature of this case where essentially it is the word of an individual alleging something that has happened a considerable time ago, the evidence has strong probative value having regard to the issues arising at trial as it is capable of being evidence from an independent source which strongly supports the case of a particular complainant under consideration.
Further, as I will not reason that the Defendant is more likely to have committed the offence under consideration merely because he has engaged in discreditable conduct with another complainant. I am of the view that the permissible use can be kept separate and distinct from the impermissible use so as to remove a risk of the evidence being used for an impermissible purpose.
In determining to admit the evidence for the permissible use I have had regard to s 34S of the Evidence Act and will not exclude it because the defence asserts that it may be the result of collusion or concoction.
Having admitted the disreputable conduct evidence for the permissible purpose, I direct myself that the permissible use of the evidence relies on the improbability of independent witnesses making similar allegations against the Defendant and that I may reason that the similarities are more than can be explained by coincidence and so the evidence of the complainants may be mutually supporting. I warn myself that this reasoning is only available to me if I am satisfied beyond reasonable doubt that the witnesses did not collude and that their evidence was not contaminated in some other way by unconscious suggestibility and that I must not adopt propensity reasoning.
Complaint evidence concerning J
Approximately a week after returning from South Australia J spoke to her neighbour, a child about the same age as herself, NT, and told her “my cousin kissed me when we were away”.[57]
[57] See T50
In my view that is the initial complaint. NT has no recollection of that conversation.[58] I do not regard it as reflecting on the credibility of the complainant even though it omits mention of the most serious allegations. Nor does it demonstrate consistency.
[58] See Statement of Agreed Facts – Exhibit P17
The next person that J spoke to was a friend, AS, when in high school in approximately Year 9. There was some talk about sexual assault and J said that she had been sexually abused by her cousin.[59]
[59] See T52
In my view this is not an initial complaint.
The next person she told was her boyfriend, T, when she was about aged 19 or 20. He was present when she rang the Defendant and asked him why he had “done it”. Apparently he replied “sorry” and that “I’m not getting any money off him”.[60] This is not an initial complaint but it is capable of being an admission by the Defendant.
[60] See T53
In my view none of that evidence either supports or casts doubt on the credibility or consistency of the complainant. It does however show that at the time of making these statements she had it in her mind the concept that the Defendant had sexually abused her and to that extent it has a tendency to rebut any assertion that the complainant recently invented a false allegation of sexual impropriety against the Defendant at some later time and in conjunction with the other complainants.
Complaint evidence concerning N
N told her ex-partner, MN, when she was 17 years old, that she had been sexually abused.[61] In my view this evidence does not show consistency nor inconsistency. It is, however, evidence that at the time of making this complaint N had it in her mind that the Defendant had sexually abused her. To that extent it tends to disprove the proposition that at a later time she concocted or conspired with another complainant to recently invent false allegations against the Defendant.
[61] See T168
Evidence also has established that N wrote a letter to the Defendant soon after she returned from South Australia.[62] The letter was intercepted by N’s mother[63] who took it as being an oblique reference to N having had some sort of a sexual encounter while in South Australia.[64] When questioned about the letter by her mother N claimed that it was a reference to meeting a boy in a park and having sex with him while in South Australia.[65]
[62] See Exhibit P7
[63] See T146
[64] See T423,424
[65] See T424
N’s explanation to me was that the letter was truly a reference to the sexual encounter N claims she had with the Defendant while in South Australia and that the explanation to her mother that she had had a sexual encounter with a boy in the park in South Australia was false. I accept that explanation.
I cannot use the implication in the letter that N had a sexual encounter with the Defendant in South Australia as evidence of the truth of it. If I accept, however, that the letter referred to such an encounter I can use the content of the letter as evidence that N had in her mind as early as 5 February 1994 the concept that the Defendant had sexually interfered with her long before there was any suggestion of concoction with other complainants and, at that time, far from wishing to falsely accuse the Defendant she desired to hide rather than publicise the idea that he may have sexually interfered with her. To that extent, the letter tends to rebut any suggestion that N recently invented these allegations falsely at, or around the time that the co-complainants were making similar allegations or that she somehow unconsciously was influenced to make allegations against the Defendant.
Complaint evidence concerning D
D received a phone call from his mother. He was told by his mother that the Defendant had been arrested and charged concerning A and she asked if anything had happened to him and he told her.[66] In my view this is capable of constituting an initial complaint.
[66] See T261
In my view this evidence is neither evidence pointing to consistency nor lack of consistency as a complaint. It does if accepted, however, tend to rebut any suggestion that D was part of a conspiracy at that time to recently invent allegations against the Defendant because he already had in his mind the concept that the Defendant had sexually interfered with him before hearing of any details relating to the co-complainants.
Complaint evidence concerning A
A told his family on an occasion when a family meeting was called when it became known to the father of A and B that B had been sexually interfered with.[67]
[67] See T302
The fact that A admitted it when it was put to him at the family meeting is neither evidence pointing to consistency nor inconsistency. It tends to rebut, however, a suggestion that the complainant recently invented the allegation of sexual interference by the Defendant at about that time as part of a conspiracy with the other complainants as the evidence suggests his admission came at the spur of the moment and before any opportunity to conspire with other complainants to make false allegations. It had the hallmarks of a spontaneous admission of something he was reluctant to expose rather than that he was making up something that had never happened.
Complaint evidence concerning B
B made a complaint to his best friend, CL, when he was about 17 years old.[68] He walked home with CL, he was drunk and confused and he told her that his cousin had sexually abused him when he was younger.[69] This was the initial complaint. Later he told his sister, Lisa, what had happened.[70] It was Lisa telling her mother which led to the family meeting at which A made the disclosure.[71]
[68] See T380
[69] See T381
[70] See T382
[71] See T384, 385
In my view this is neither evidence pointing to consistency nor inconsistency but it is evidence capable of rebutting any suggestion that B was part of a conspiracy to recently invent a false story concerning the Defendant at a later time or was later subconsciously influenced to make the allegations.
Is there any independent evidence which tends to support the evidence of the complainant?
Like many cases, of alleged sexual impropriety these offences are alleged to have occurred in private and to a significant degree it is a case of one person’s word against another.
For that reason it is useful to consider whether there is independent evidence which corroborates the respective complainants’ evidence.
Independent evidence supporting J
J asserts that as a result of what the Defendant did to her she was sore in her vagina, went to have a shower and saw blood.[72] The next day she told the Defendant’s wife that she thought she had had her period. In fact she did not have her period until Year 9 at high school.[73]
[72] See T40
[73] See T40
If I accept that J did not have her period during the times she was visiting the Defendant in Adelaide and indeed that she did not have her period until Year 9 at high school[74] then there is independent evidence that J raised the question of her possibly having her period with the Defendant’s wife in Adelaide. It is supported by the evidence of KC[75] and the evidence of Mrs M who received a phone call from the Defendant during which the topic was discussed.[76]
[74] See T40
[75] See T569
[76] See T419
There is some evidence from the twins’ mother that they had hitherto shown no signs of starting menstruation[77] and there were subsequently no signs of sanitary pads etc[78] when back in New South Wales, thus supporting J.
[77] See T419
[78] See T421
If both twins had their first periods within days of each other in Adelaide, it is a notable coincidence. As it was put by the twins father,
When they left they had not had their periods. When they did come back apparently they had both started their periods whilst in Adelaide.[79]
[79] See T465
There is thus evidence independent of J which supports the allegation that she raised the topic of her having her periods while in Adelaide. If she did not have her period while in Adelaide then it supports her assertion that the topic was raised because of bleeding subsequent to the conduct that J alleges that the Defendant perpetrated and is thus some independent support for her evidence.
Independent evidence supporting N
The same evidence in relation to J having her period applies in respect of N. She says that the night after watching The Exorcist on TV, while sitting in the lounge watching television with the Defendant, he put his penis inside her vagina[80] and that when putting on her underwear after intercourse she noted blood on her underpants and the Defendant said “Don’t worry you’ve just got your period”.[81]
[80] See T123
[81] See T124
For the reasons mentioned in respect of J there is independent evidence that the question of her commencing to have her periods was raised in Adelaide and, if in fact she was not having her periods[82], it gives support to N’s evidence as to what led to the topic arising.
[82] See T126
The Defendant pleaded guilty to Count 5, an allegation that while in Adelaide, during the period 26 December 1993 and 31 January 1994, he had sexual intercourse with N by inserting his penis into her vagina. I was asked to take that plea into account. The plea is an admission that the offence was committed although it is not an admission as to the circumstances in which the offence was committed. The admission is independent evidence which proves that a sexual passion existed in Adelaide at the relevant time between the Defendant and N. It is corroborative evidence of the allegations that N makes. Its corroborative value, however, is not confined merely to Count 5 itself. Its corroborative value as independent evidence of a sexual passion between the Defendant and N is in respect of all counts involving N.
When N’s mother rang the Defendant to raise the issue of the intercepted letter P7 and told him that N had said she had sex with a boy in the park, he replied “Thank God she’s told you”.[83] I prefer her evidence to that of her husband on this topic.[84] But N had not had sex in the park with a boy and the Defendant did not believe she had. It was a lie designed to mislead N’s mother. I will not use it, however, as a lie told with a consciousness of guilt.
[83] See T424
[84] See T467
Finally, the payment of the $1,000 allegedly requested by N of the price of not publicly accusing the Defendant is itself independent corroborative evidence of N’s accusations.[85]
[85] See Exhibit D19
I have considered whether there is any hypothesis consistent with innocence for the payment of the $1,000 including that it simply relates to Count 5 to which the Defendant has pleaded guilty,[86] as asserted by the Defence.
[86] See Defence Address, T679
In my view it is evidence evincing a consciousness of guilt and corroborates all Counts in respect of which N is a complainant.
I note also, that the evidence of the Defendant’s wife is that there was indeed an occasion where they viewed videos of the films “The Exorcist” and “Poltergeist” and it is to that extent supportive of N’s case.[87]
[87] See T593
Independent evidence supporting D
There is no independent evidence that supports the evidence of D except that the evidence in relation to the other complainants is capable of being independent evidence corroborating D’s case.
Independent evidence supporting A
There is evidence that A ripped up photographs of the Defendant (in his possession).[88] This was observed by his sister, Lisa, and his brother B.[89] It supports the proposition that A harboured mixed feelings about the Defendant and that at the time he destroyed the photographs he was having resentful thoughts about the Defendant which may have arisen out of what he asserts the Defendant had done to him.
[88] See T301
[89] See T397
It tends to show that whatever negative thoughts he had about the Defendant did not prompt him to then make a complaint to the authorities.
On the occasion where the Defendant stayed with A’s family when attending a funeral in Adelaide he slept with A in the lounge room and in the morning his father noted that the beds had been rearranged when going into the lounge room in the morning.[90] I note that A’s father does not support the allegation that he was “freaking out” and said something like “What’s going on out here”.
[90] See T532
There is also the evidence of the other complainants as to what happened to them. The evidence of the other complainants, if accepted by me, is independent evidence corroborating each of the complainants.
Independent evidence supporting B
There is no independent evidence supporting B in his own complaints except that the evidence in relation to the other complainants may be regarded as independent evidence supporting B.
Evidence tending to cast doubt on the evidence of the complainants
It is necessary to consider the evidence which the defence has adduced which it asserts damages the credibility of the complainants.
In relation to J
The evidence of the wife of the Defendant establishes that on most occasions when alleged sexual acts occurred she was in the vicinity of the house. The defence argue that it is unlikely that the acts could have occurred without her having noticed.
Further, the offences which are alleged to have occurred in the lounge room while “The Exorcist” was showing on television allegedly occurred while N was in the room, albeit asleep. The defence argue that the allegations are unlikely because of the risk that the Defendant’s wife or N would have observed the offending.
N says she watched the movie[91] and then went to sleep in the bedroom and the Defence places much reliance on this suggested inconsistency.
[91] See T185, 193
N may well have fallen asleep contrary to her recollection, during the movie. Whether she drifted to sleep during a movie many years ago is not something she would necessarily remember accurately.
I have considered these questions. I am confident that J was truthful in her evidence. Certainly the allegations suggest a surprising brazenness on the part of the Defendant. Yet, a surprising brazenness is a common factor in all the allegations.
I was not impressed by the evidence of the Defendant’s wife. I formed the distinct impression that she was prepared to tailor her evidence so as to suit what she perceived to be the interests of the Defendant with whom she has stayed and who she has supported notwithstanding the knowledge that he has had sexual intercourse, on his own admission, with a prepubescent 13 year old. It may be that she did not want to see anything which might have been detrimental to their marriage. In any event, the argument that one would have expected her to have seen what the Defendant was doing does not shake my confidence in the evidence given by J or any of the other complainants.
In relation to N
The same criticisms are made in relation to the allegations made by N.
The defence pointed out that the shed where some of the offences are said to have occurred with the door open as asserted by N is an unlikely place for illicit sex because somebody could have come out from inside and seen them. I note that possibility but I accept N as a witness of truth and in making that assessment have taken into account the criticism and note the evidence pointing to the brazenness of the Defendant’s approaches.
The independent evidence of the paying of the $1,000 by the Defendant is significant evidence corroborating the allegations of N, as is the plea in Count 5.
I have had regard to the evidence of N and the proximity in the house of the various rooms and the presence of the Defendant’s wife.
I accept the evidence of the complainant as to its truthfulness and general accuracy.
In relation to D
D was clearly in error as to the time when he commenced having a close relationship with the Defendant as in 1987 and 1988 the Defendant was living in Darwin.[92]
[92] See T265
He also deposed to there being a massage table when the Defendant was living with his parents at Hillbank.[93] I am of the view that D is in error when he says that there was a massage table at the home of the Defendant’s parents at Hillbank. The evidence of the Defendant’s father and wife combined on this topic is probably correct.
[93] See T269
I note that D is giving evidence of things that happened a long time ago. The fact that he has made errors on these topics does not affect my assessment of him as being an honest witness and an accurate witness when deposing to the incidents which constitute the offence alleged.
I bear in mind that the witness was recalling events that happened some 20 years previously at a time when he was around 15 years old.
During cross-examination it became apparent that after the Defendant moved to Western Australia D continued to have contact with him at a New Years Eve party,[94] at family functions and events including his own 21st birthday party. D obtained the assistance of the Defendant to build a computer for him.[95]
[94] See T276
[95] See T277
I do not regard the evidence that D continued to have relations with the Defendant as casting doubt on his allegations of sexual molestation. It is not uncommon for victims of sexual offences to be ambivalent about the relationship with their molester and indeed for them to maintain a respect and affection for their molester.
The sinister aspect of this type of offending is that it frequently trades on the loyalty and mixed and developing emotions of the victim.
I was impressed by the evidence of D. I accept his evidence both as to its accuracy and its credibility, but I do not rely on any incident said to have occurred at the Defendant’s parents’ home for establishing the elements of Count 11 due to the non presence of the massage table and the evidence of the Defendant’s parents that he did not stay overnight at their premises.
In relation to A
A admitted that he took methylamphetamine before giving evidence.[96] I did not detect that when A gave his evidence he was under the influence of methylamphetamine nor did I form the view that the accuracy of his recall or his credibility was affected by the fact that he had taken methylamphetamine. He readily admitted it under cross-examination.
[96] See T307
He claims that the wife of the Defendant was present in the house on most occasions when the Defendant committed sexual improprieties against him. Cross-examination pointed to the incongruity of these events occurring in a house where the Defendant’s wife was always likely to be present and not far away.
He asserts that on one occasion the Defendant’s wife came into the room and found him naked in the presence of the Defendant. He claims she “freaked out”.[97] This led to an argument between the Defendant and his wife.
[97] See T310
I note that when the Defendant’s wife gave evidence she denied that she ever came in and saw them as claimed by the complainant A.[98]
[98] See T574
I have already expressed my view of the evidence of the Defendant’s wife. I have formed the view that she is prepared to distort evidence to help his case. She did not impress me as a witness of truth. I prefer the evidence of A to the evidence of the Defendant’s wife. I do not think that A has made up his account of the Defendant’s wife coming into the room and finding them in flagrante delicto. It would be an unusual thing to make up without knowing whether the obvious witness, the Defendant’s wife, would support it.
Two letters tendered by the defence show that after the alleged sexual interference A was still writing to the Defendant in terms of affection.[99]
[99] See Exhibit D12
The state of mind of A as one can discern it from the letters, D12, does not in any way cause me to doubt the veracity of the evidence of A. Indeed, if anything the sentiments expressed explain why A should have allowed the Defendant to do to him those things he described.
The fact that A apparently did not express concern when the Defendant came over from Perth to stay with A’s family while attending a funeral does not cause me to have any concern about the evidence of A for reasons I have already expressed in connection with the letters.
His claim, however, that his father in the morning “freaked out” and said “What is he doing out here?”[100] is not supported by his father. [101] It does not, however, give me reason to doubt A’s honesty.
[100] See T300
[101] See T316
I noted also a certain reluctance on the part of A to acknowledge authorship of the second of the two letters, D12. Again I have considered whether this affects his credibility as the letters were clearly written by the same person. I have taken this into account in assessing A’s credibility and I still accept A as a witness of truth and accuracy.
In relation to B
He admitted he took methylamphetamine with his brother A when A was in court on a previous occasion.[102] I did not take this fact to detract from his credibility nor his accuracy. I did not detect that he was under the influence of drugs when he gave his evidence.
[102] See T393
A series of e-mails from B to the Defendant were tendered.[103] The point to be made is that subsequent to a time when the alleged sexual offences were occurring the witness B is writing in friendly and endearing terms to the Defendant. I did not find this to be inconsistent with the claims of the witness of sexual interference having occurred. I have already discussed in the context of other complainants the phenomenon that sexual victims may sometimes continue to hold in awe and endearment the perpetrator of their sexual interference.
[103] See Exhibit D14
I have considered the matter specifically in the context of B. It does not affect my views that B has been a witness of truth and accuracy.
Has concoction and unconscious adoption been refuted beyond reasonable doubt?
These issues are inextricably interwoven with issues of how the allegations got to see the light of day.
As to J
J first reported the matter to New South Wales police on 19 January 2009.[104]
[104] See T361
She went along with her sister N.
It is unlikely that J decided to make up false allegations against the Defendant at this time in conjunction with one or more other complaints as she had previously spoken to her neighbour and made a complaint to her[105], although I note that NT has no recollection of that conversation.[106]
[105] See T50
[106] See Exhibit P17 - Statement of Agreed Facts
J also spoke to a friend, AS, while in high school in approximately Year 9.[107]
[107] See T52
She also spoke to her boyfriend, T, when she was aged about 19 or 20.
She rang the Defendant and asked him why he had done it and he replied “sorry” and “You’re not getting any money off me”.[108]
[108] See T53
In addition there is no doubt that J had discussed with the wife of the Defendant at the time of the alleged events the issue of her having her period. She claims this was because she was bleeding after the Defendant had sexually interfered with her.
The allegations by J were well and truly made by the time that she visited the police in January 2009. In my view there is no likelihood that J made up these allegations because she had heard about allegations by the other complainants. I accept the evidence that she did not compare notes with any other complainant so as to make her allegations similar to other complainants.
I am satisfied that there had been no contact with D and very little contact with A and B.[109]
[109] See T58, 59 & 60
I do accept, however, that J probably went to the police station with the knowledge that D had made an allegation against the Defendant.[110]
[110] See T61
I am also satisfied that when J went to the police station in January 2009 with N she knew that N was making an allegation.[111]
[111] See T62
I am satisfied beyond reasonable doubt that J did not make up the allegations because of any information from any of the other complainants, either consciously or unconsciously.
As to N
Long before going to the police N had made the allegation against the Defendant in a letter discovered by her mother.[112] At that stage far from wanting to implicate the Defendant she tried to hide his involvement.[113]
[112] See T146 - Exhibit P7
[113] See T146, 147
I accept her evidence that she did not know at that stage that anything had happened between the Defendant and her sister and did not know until she received a phone call from J indicating that B and A were going to the police.[114]
[114] See T166
She told her ex-partner about the allegations involving the Defendant.[115]
[115] See T168
She confronted the Defendant and received $1,000 so as not to implicate him.
I am satisfied, beyond reasonable doubt, that her allegations are not tainted deliberately or unconsciously by the allegations by any of the other complainants both as to the making of a complaint and as to the nature of the allegations she has made.
As to D
He first complained sometime after the birth of his daughter on 30 November 2010.[116]
[116] See T261
It is an agreed fact that he went to the police and reported it on 23 February 2011.[117]
[117] See Exhibit P17 – Statement of Agreed Facts
In my view the manner in which he complained about the matter is indicative of it not being influenced by other complainants. His mother had received a phone call after the family meeting in the Pearce household when allegations were revealed involving A and B. D burst into tears and a week later admitted to his mother that he had been interfered with by the Defendant.[118]
[118] See T263
He had had little contact with any of the other complainants. He had not heard any details of what the other complainants were alleging.[119]
[119] See T263-264
I am satisfied beyond reasonable doubt he was not part of any conspiracy to make allegations against the Defendant, nor did he use information obtained concerning any of the other complainants consciously or unconsciously so as to influence the nature of the allegations he was making.
As to A
A reported the matter to police on 8 August 2011.[120]
[120] See Exhibit P17 – Statement of Agreed Facts
The first persons he told were his immediate family when the family meeting was held.[121] At that time he didn’t know directly whether B, his brother, had been interfered with[122], although he suspected it because it had happened to him.[123]
[121] See T302
[122] See T302
[123] See T303
The defence placed reliance on a suggestion that at the family meeting the questioning by the father of A, as a result of which A made admissions, was by way of accusation and leading question.[124]
[124] See T303
I was impressed by what I found to be a reluctance by A to make admissions to his family. Far from wishing to “join the band wagon” of a concerted attack on the Defendant I thought A was reluctant to implicate him and his complaint to the police and his evidence was not motivated by any conspiracy with any or all of the complainants to falsely implicate the Defendant, nor was his evidence, in my view, consciously or unconsciously affected by the content of the allegations of the other complainants.
As to B
B reported the matter on 20 January 2009 at the Salisbury Police Station.[125] He did so a full two years before his brother reported the matter to police.
[125] See Exhibit P17 – Statement of Agreed Facts
In my view the timing of his reporting the matter to the police was probably influenced by hearing that J and N made allegations against the Defendant. It was not, however, part of any conspiracy with any or all of the complainants to make allegations against the Defendant. Before making the complaint to the police he had already told CL[126] and his sister L.[127] I am satisfied beyond reasonable doubt his testimony was not influenced consciously or unconsciously by the allegations of the complainants
[126] See T381, 489
[127] See T382, 495-500
Summary
I reject, beyond reasonable doubt, that any of the complainants decided to make up allegations because another complainant or complainants had made allegations. I reject, beyond reasonable doubt, any possibility that any of the complainants tailored the nature of the allegations they made based on any information as to the nature of allegations made by any of the other complainants.
I am satisfied beyond reasonable doubt that the five complainants acted remarkably independently when they made disclosures to other persons and on deciding to prosecute.
At no time did any complainant seek to enlist the aid of another complainant to make allegations against the Defendant.
In my view it is highly relevant to note that these five complainants have independently made allegations against the one person disclosing as common factors encouragement by the Defendant for the particular complainant to spend the night at his house, assisted by provision of activities, bike riding, gifts and a generous discipline system, given the age of the complainants. A common factor is that the complainants alleged these events occurred when they were aged approximately 8 – 13 years and were pre-adolescent and that they involve a range of common sexual activities against a background, in the case of the three males, of the use of massages.
The onus of proof in relation to uncharged acts
The much vexed question of the onus of proof in relation to uncharged acts is now dealt with by s 34R of the Evidence Act 1929.
The section is perhaps somewhat unfortunately worded and is perhaps not as plain as suggested by the Attorney in the Second Reading Speech.[128]
[128] See House of Assembly Evidence (Discreditable Conduct Amendment Bill) - Wednesday 6 April 2011, page 3287
34R—Trial directions
(1) ...
(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
In my view this must mean that in relation to evidence admitted under s 34P(2), if that evidence is essential to the process of reasoning leading to a finding of guilt (in the sense referred to in Shepherd’s case[129]) then that evidence, that is the evidence admitted under s 34P(2), cannot be used unless on the whole of that evidence admitted under s 34P(2) the facts (i.e. uncharged acts or evidence involving other complainants) for which the evidence was admitted must be established beyond reasonable doubt.
[129] See Shepherd v R (No 5) (1990) 170 CLR 573
The fact that the provision provides that “evidence [that] is essential to the process of reasoning leading to a finding of guilt” is specified as having to be proved beyond reasonable doubt leads to the inference that the legislature has assumed that other evidence admitted under s 34P that is not essential to the process of reasoning leading to a finding of guilt does not have to be proved beyond reasonable doubt. If all evidence admitted under s 34P was to be proved beyond reasonable doubt there would be no need for the provision in relation to s 34R(2) to be inserted in the Act.
If the rule in HML v The Queen[130]where a bare majority of the Court seems to suggest all such evidence must be proved beyond reasonable doubt was to be regarded as the law then there would be no need for the South Australian legislature to specify that evidence that is “essential to the process of reasoning leading to a finding of guilt” must be proved beyond reasonable doubt as all such evidence would have to be proved beyond reasonable doubt in any event.
[130] See HML v The Queen (2008) 235 CLR 334
In this case none of the uncharged acts i.e. uncharged allegations of sexual misconduct by the Defendant made by the various complainants, nor evidence of other complainants about acts of sexual impropriety by the defendant on them are acts “essential to the process of reasoning leading to a finding of guilt” in the Shepherd sense.
I accept generally the allegations of the various complainants as to sexual conduct by the Defendant towards them and I reject beyond reasonable doubt the scenario that some of them have either deliberately concocted allegations against the Defendant influenced by some or other of the complainants, or that any of them have subconsciously been influenced by allegations made by other complainants or some of them against the Defendant.
In my view the fact that the five complainants have independently, as I find it, made allegations of a similar nature all against the same Defendant is inexplicable except that the events that they have described did take place or that it was a coincidence. I reject the scenario that it was a coincidence.
Findings in relation to evidence of complainants
I have considered the evidence directly relevant to each of the complainants separately. I have found in respect of all of the complainants that in general terms their evidence is both honestly and accurately given. I have considered their evidence in the context of the criticisms made in cross-examination and in the defence case.
I have also considered the issue of prior inconsistent statements of witnesses and omissions of witnesses to mention in statements to the police aspects of evidence they have given in this Court as raised during cross-examination.
I may use evidence that a witness has said something different on a previous occasion or omitted to say something on a previous occasion as material affecting the credibility of that witness. Before using it in that manner, however, I have given consideration to the following matters:
1 The circumstances in which it was made and whether I would have expected the witness to have gone into detail on that occasion and to have been utterly accurate in relation to the relevant topic.
2 Whether the witness was suffering from youthfulness, lack of education or the passage of time in respect of the time between the events being described and the making of the statement.
3 Whether the person taking the statement down was taking it down accurately and whether the taker of the statement was only interested in the gist of what was being said and not the specifics and whether the person taking the statement would have necessarily pushed the witness for details or simply not have asked.
4 Whether the error or omission was in relation to a peripheral matter or a crucial matter.
5 Whether the error or omission was indicative of deliberate lying or mere carelessness or lack of sophistication or youthfulness or lack of education on the part of the witness or the person taking the statement from the witness.
I have had regard to all these matters.
I note also that what a witness says in a prior inconsistent statement is not evidence of the truth of it unless the witness confirms it to be true in evidence.
None of the errors or omissions in respect of prior statements has affected my view that each of the complainants was both honest and, generally speaking, accurate.
Having formed a view that the complainants were both truthful and accurate in their evidence supported as some of them were by other evidence confirming that an offence had been committed and that the Defendant was the perpetrator I have considered the totality of the evidence and in particular, whether there is an explanation for the allegations of the five complainants consistent with the Defendant’s innocence which is reasonably possible.
Conclusion and resolution of the issues
As to J
I find that J was both an honest and substantially accurate witness. I note that her evidence received support from N as to the general circumstances of the visit to South Australia and the living arrangements. It is clear that there was an incident in South Australia involving a discussion about whether she had just commenced to have her period.
There is also some support independent of J that there was an occasion when “The Exorcist” and “Poltergeist” were shown on the television.
None of the cross-examination caused me to doubt the principal evidence of J.
Her evidence is bolstered by the evidence of the other four complainants. I do not think she was part of any conspiracy with the other complainants or anyone to falsely accuse the Defendant nor that she was unconsciously influenced by one or more of the other complainants.
I accept the evidence of J beyond reasonable doubt as to its honesty and accuracy.
I find that in January 1994, while J was visiting the Defendant in Adelaide, and while a movie “The Exorcist” or “Poltergeist” was being shown on TV, J put her mouth over the penis of the Defendant, (Count 1), and the Defendant inserted his penis into her vagina, (Count 2) and had anal intercourse with her, (Count 3).
I am satisfied beyond reasonable doubt as to all the elements of each offence.
As to N
I find that N was both an honest and substantially accurate witness. I note that her evidence receives support from J as to the general circumstances of the visit to South Australia and the living arrangements. It is clear that there was an incident in South Australia involving a discussion about whether she had just commenced to have her period. There is some independent support for N in that there was indeed an occasion when “The Exorcist” and “Poltergeist” were shown on the television. She claims the offending occurred the night following the showing of these films.
None of the cross-examination caused me to doubt the principal evidence of N.
Her evidence is corroborated by the plea of the Defendant to Count 5 and by the payment of $1,000 by the Defendant for her to refrain from advising the authorities that he had sexually interfered with her.
I accept the evidence of N beyond reasonable doubt, corroborated as it is by the evidence of the plea and the evidence in relation to the paying of the $1,000 and the independent evidence in relation to the issue of her period coming while she was in South Australia.
I take into account also the fact that four other complainants have made similar allegations independently of each other and of N for which there is no reasonably explicable explanation save that the allegations were true.
I find that there is no reasonable explanation consistent with innocence and:-
That in January 1994, while N was visiting the Defendant in Adelaide, and the night after a movie “The Exorcist” or “Poltergeist” was being shown on TV, the Defendant came into her bedroom, took her into the lounge room and watched TV with her.[131] He placed his hands over her breasts and then told her to take off her nightdress, took off her underpants, told her to perform fellatio on him,[132] (Count 6).
[131] See T119-120
[132] See T122
He thereafter told N to lie on her side and put his penis into her anus,[133] (Count 7).
[133] See T122
Thereafter he lay on top of her and put his penis inside her vagina,[134] (Count 5).
[134] See T123
As her underwear was being put on she noticed blood on her underwear and the Defendant said “Don’t worry you’ve just got your period”.[135]
[135] See T124
I find that some days later the Defendant came to her room and awoke her, took her to the garage, told her to undress and placed his penis in her anus,[136] (Count 8).
[136] See T127
A day or so later, I find the Defendant came and woke her and took her to the garage again and placed his penis inside her vagina,[137] (Count 9).
[137] See T129
I find that at some stage during this sojourn in Adelaide the Defendant took N and J away camping to Victor Harbor.[138] On this occasion, whilst on the bed with the complainant and the other children, the Defendant grabbed N’s hand and started rubbing it on his penis and on his legs,[139] (Count 10).
[138] See T132
[139] See T135
I find all the elements of the offences proved beyond reasonable doubt.
As to D
I accept the evidence of D beyond reasonable doubt both as to its truthfulness and accuracy.
I also rely on the fact that four other complainants have independently, as I find it to be, made similar allegations against the Defendant.
I find that for a period of time D would stay overnight with the Defendant at a house in Salisbury North and during this time the Defendant would give him a massage.
During this time I find the following:
·The Defendant was an adult person.
·The Defendant committed more than one act of sexual exploitation. This included masturbation of D’s penis,[140] placing of his penis between the legs of D.[141] For the purposes of the offence I identify at least two acts of masturbating D’s penis.
·These acts occurred over a period of not less than three days (indeed they occurred over many weekends).
·At the time of these acts D was under the age of 17 years.
·All the elements of the offences have been established beyond reasonable doubt.
[140] See T256
[141] See T250
I find Count 11 proved beyond reasonable doubt.
As to A
I accept the evidence of A both as to its accuracy and truthfulness.
I also rely on the evidence that four other complainants have independently made similar allegations.
I find that he started visiting the Defendant’s home at a time when the Defendant was living with his wife and two children.[142] He was going to Salisbury Heights Primary School and would spend the night at the Defendant’s place perhaps once a month.[143]
[142] See T288
[143] See T288, 289
A would sleep in the lounge.[144]
[144] See T289
The Defendant would take him motorbike riding and to help at the “Trash and Treasure” market at Gepps Cross on early Sunday morning.[145]
[145] See T289
The Defendant would give him Jim Beam and cigarettes.[146] When he would stay over on most occasion’s sexual activity would occur between them.[147] The Defendant would massage him, would straddle him and on one occasion, when A had no clothes on, the Defendant placed his penis between A’s buttocks.[148]
[146] See T291
[147] See T292
[148] See T293
The Defendant would massage his chest and down to his penis and masturbate him.[149]
[149] See T294
This activity occurred before the Defendant moved to Perth.[150]
[150] See T297
On one occasion the Defendant returned from Western Australia to attend a funeral and slept in the lounge room of A’s home.[151]
[151] See T298
On that night A was masturbated by the Defendant.[152]
[152] See T299
I am satisfied beyond reasonable doubt that at the time of these events,
·The Defendant was an adult person.
·The acts that I have described took place on more than one occasion and if properly particularised could be the subject of a charge of a sexual offence. For the purposes of the charge I identify at least two acts of masturbating A’s penis.
·The acts occurred over a period of not less than three days.
·A was, at the relevant time, under the age of 17 years.
I therefore find Count 12 proved beyond reasonable doubt.
As to B
I accept the evidence of B both as to its accuracy and truthfulness beyond reasonable doubt.
I also accept and rely on the evidence that four other complainants have independently, as I find it to be, made allegations of a similar nature against the Defendant.
I find that when B was about 8 years old he would sleep over at the Defendant’s premise and help him at the “Trash and Treasure” market at Gepps Cross early Sunday morning.[153]
[153] See T370
At the relevant time the Defendant was living at Paralowie with his wife and two children.
While visiting the Defendant’s home B was allowed to swear, stay up late and smoke.
He would stay up late playing computer games.[154]
[154] See T373
In the lounge room, in the early hours of one morning, the Defendant asked B if he would like a massage.[155] He removed all of B’s clothing and underwear[156] and touched his buttocks and penis.[157]
[155] See T374
[156] See T374
[157] See T375
He would masturbate B[158] and he would put his penis between the thighs of B, when he was behind B.[159]
[158] See T376
[159] See T376
This activity stopped when the Defendant moved to Perth but B continued to stay in contact by letters and emails.[160]
[160] See T380
I am satisfied beyond reasonable doubt of the following,
·The Defendant was an adult person at the relevant time.
·The Defendant committed more than one of the acts I have described which if properly particularised could be the subject of a charge of a sexual offence. For the purposes of the charge I identify at least two acts of indecent assault by placing his penis between B’s thighs.
·That the acts occurred over a period of not less than three days.
·At the time of the relevant acts B was under the age of 17 years.
I therefore find Count 13 proved beyond reasonable doubt.
In the event that the uncharged acts i.e. the uncharged acts against a particular complainant and the Counts involving the other complainants must be proved beyond reasonable doubt before they can be used
I am of the view, that in accordance with the former Chief Justice’s remarks in Nieterink at para 83 “the charges in relation to other complainants need only be proved on the balance of probability before they can be used in respect of the allegations involving a particular complainant” and I have conducted that exercise in accordance with my understanding of what is required pursuant to s 34R(2) of the Evidence Act 1929.
In the event that I am wrong and that such evidence must be proved beyond reasonable doubt before it can be used, I have subjected the evidence to the following analysis:
I have considered the evidence in the case involving N as that, in my view, is the strongest case. It involves corroboration by virtue of the plea to Count 5, by virtue of the payment of $1,000 to N by the Defendant and derives further support from the intercepted letter. The allegations were not infected by the knowledge of allegations of another complainant nor a recent invention.
I am satisfied of the charges in relation to N beyond reasonable doubt without reference to the uncharged acts and evidence in the cases involving the other complainants other than to note that N’s evidence has not been corrupted intentionally or subconsciously by those allegations which finding I made beyond reasonable doubt.
In considering the case involving J I am entitled to use not only the evidence directly relevant to the case involving J but also the case involving N as I have already found that proved beyond reasonable doubt.
I conclude with the assistance of the evidence in relation to the case involving N that there is such an underlying unity between the two lots of allegations that I cannot conceive of them having been made independently unless true. I am satisfied beyond reasonable doubt that the evidence of J has not been infected by the allegations in relation to N or the allegations in relation to any of the other complainants I find the charges proved beyond reasonable doubt in the cases involving J relying only on the evidence in the case involving N.
I next come to consider the evidence in relation to the case involving D. I use, in considering the charges involving D, the fact that I have found proved beyond reasonable doubt the charges involving J and N.
I conclude beyond reasonable doubt that there is no corruption in the allegations made by D by the other complainants or their allegations.
I find the allegations made by D to have such an underlying unity with the allegations independently made by J and N as to be incapable of any explanation other than that D is telling the truth, having excluded the possibility of concoction beyond reasonable doubt and having already found proved the allegations by J and N beyond reasonable doubt.
When I consider the case against A I have rejected beyond reasonable doubt a possibility that he has been influenced by any of the other complainants or their allegations.
Having found beyond reasonable doubt that the allegations of J, N and D are true beyond reasonable doubt I find that there is such an underlying unity between the allegations made by J, N, D and A as to be incapable of any explanation other than that A is telling the truth. I find the charges, in respect of A, proved beyond reasonable doubt.
When I consider the case against B I have open to me to use the allegations by J, N, D and A having found them all proved beyond reasonable doubt and all made independently.
The similarity of the allegations between these four complainants and what B alleges are inexplicable other than by some sort of concoction or infection which I exclude beyond reasonable doubt.
Accordingly I am able to find the charges involving B proved beyond reasonable doubt.
Having subjected the facts and the case to analysis by both methods I am satisfied beyond reasonable doubt that all charges have been proved beyond reasonable doubt.
Verdicts
Verdicts guilty Counts 1 – 13 excluding Count 5 to which the Defendant has pleaded guilty.
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