R v Cave

[2024] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v CAVE

Criminal Trial by Judge Alone

[2024] SADC 81

Reasons for the Verdict of  her Honour Judge Tracey

9 July 2024

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

The accused was charged with one count of maintaining an unlawful sexual relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The acts are alleged to have occurred between 1 January 1985 and 31 December 1986 when the victim was between the ages of 6 or 7 years of age. The accused elected for trial by judge alone.

Verdict: Guilty.

Criminal Law Consolidation Act 1935 (SA) ss 50(1), 50(6), 50(12), 63B; (as at 1985 to 1986) ss 49(1), 58A(1), referred to.

R v CAVE
[2024] SADC 81

1. Philip Cave (the accused) is charged as follows:

   First Count

   Statement of Offence

   Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Philip Cave between the 1^st day of January 1985 and the 31^st day of December 1986, at Alberton and other places, maintained an unlawful sexual relationship with [LB], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [LB], namely:

   (a)    inserting his penis into [LB’s] anus on more than one occasion, and

   (b)   inciting or causing or procuring [LB] to engage in anal intercourse with another person.

   Elements of the Offence

   Sexual Abuse of a Child

2. The prosecution must prove beyond reasonable doubt each of the following elements:

   1. The accused knowingly maintained a relationship during the relevant period.

   2.The accused was an adult during the relevant period.

   3.LB was a child under the age of 17 during the relevant period.

   4. The accused engaged in two or more unlawful sexual acts with LB in the course of the relationship.

3. The prosecution alleges that the offending alleged in particular (a) and (b) are acts of unlawful sexual intercourse contrary to the previously enacted s 49(1) of the Criminal Law Consolidation Act (‘the Act’).

4. Pursuant to s 50(6) of the current Act, the offence of sexual abuse of a child extends to a relationship that existed wholly or partly before the commencement of s 50. A sexual offence is defined to include a substantially similar offence against a previous enactment. Section 49(1) of the previously enacted Act was in the same terms during the period particularised in the information. Section 49(1) of the Act during the time relevant to the offending here provided that a person who has sexual intercourse with any person under the age of 12 years shall be guilty of an offence and sexual intercourse was defined to include any activity, whether of a heterosexual or homosexual nature, consisting of or involving penetration of the anus of a person by any part of the body of another person or by any object.

5. With respect to the second particularised act on the information, the prosecution submits that the accused has committed the act of procuring a child to commit an indecent act contrary to the current s 63B Criminal Law Consolidation Act 1935 (and former s 58A(1) Criminal Law Consolidation Act 1935).

   General directions

6. I direct myself as follows:

   ·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.

   ·The burden of proving the charge lies wholly on the prosecution and the accused is not obliged to prove anything. It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.

   ·At all times it is for the prosecution to satisfy me that LB is both an honest and reliable witness beyond reasonable doubt.

   ·The accused elected not to give evidence and remained silent in court. The accused was not bound to give evidence and has the right to decline to give evidence. I must not draw any adverse inference against him or in the case that he puts forward from the fact that he exercised that legal right. There may be many reasons why an accused does not give evidence and I do not speculate on those reasons. The recurrent theme to bear in mind is that it is for the prosecution to prove every element of its case beyond reasonable doubt. An accused’s silence in court is not evidence against him and does not constitute an admission against him. It may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.

   ·I must assess each witness as to their truthfulness and reliability and determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’s evidence.

   ·Certain witnesses gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight that I give that evidence.

   ·The accused participated in an interview with police. I must treat this evidence the same way as any other kind of evidence and not allow the way in which it was presented to influence the weight that I give to the evidence. That the evidence was given in this way says nothing about the accused and I draw no inference against him from his evidence having been given in that way.

   ·I received evidence of the accused’s discreditable conduct and allegations of uncharged acts committed against LB. This evidence concerned the reports in the media regarding other offending by the accused, which was led to show the circumstances in which the complaint was made. I received evidence of the accused having committed fraud in Victoria, which had been led by defence purely for the purpose of showing an alibi. I received evidence regarding the bathroom incident, and violence alleged to have occurred on the lawn, with threats made against LB and his brother. This evidence was led as relationship evidence and not for any propensity use with respect to the charged acts. I have not reasoned that any of this evidence can be used to reason that the accused is the type of person who would commit the offence with which he is charged, or that he is more likely to have committed the charged offence.

   ·A period of almost 40 years had elapsed between the charged offending and the trial. There can be no doubt that this delay has resulted in a significant forensic disadvantage to the accused with respect to testing the prosecution evidence or obtaining evidence that may have assisted him in challenging that evidence. For example, the evidence of other workers at the car yard or staff at the motel in Elizabeth, where the offending is alleged to have taken place. Memories of events and surrounding circumstances, of all prosecution witnesses and the accused, have been significantly impaired. Relevant documentary or forensic evidence has not been available which may have assisted the defence. I have taken into account the significant forensic disadvantage to the accused when scrutinising the prosecution case. 

   Witnesses

7. The prosecution called LB, his mother SS, former Detective Brevet Sergeant Peter Wilkinson (Mr Wilkinson) and the investigating officer, Detective Sergeant Rebecca Burns (DS Burns).

   Prosecution Case

8. LB was born on 13 June 1979 and the accused was born on 27 September 1950. SS met the accused when she purchased a car from a car yard where he was working. She and the accused developed a relationship.[1] SS and her two children, LB and CL, who is about 2 years, three months younger than LB, moved into the accused’s house, (the house) which was somewhere around the Prospect and Nailsworth area off Main North Road.[2]

   [1] T5.

   [2] T6.

9. LB was about 6 or 7 years of age when he lived with the accused. During this time, the accused and LB often went to a car yard on Port Road, where it is alleged the accused regularly sexually abused LB.

10. LB could recall a particular occasion when the accused inserted his penis into LB’s anus when other people were present at the car yard. LB recalled other times the accused sexually abused him at the car yard and recalled wiping semen off his bottom.

11. On another occasion, the accused took LB to a hotel room. The accused had sexual intercourse with LB multiple times by inserting his penis into LB’s anus. At some point, another person came into the hotel room and that person also inserted their penis into LB’s anus.

12. The last time that LB saw the accused in person was after an incident that occurred in the bathroom at the house. LB was in the bathroom with his brother having a bath. The accused came in and tried to cause LB to perform fellatio on him and some sort of altercation ensued. The accused then strangled LB before SS intervened. These acts are alleged to be uncharged acts against LB. SS took LB and CL and left the house. Neither SS nor LB communicated with the accused again.

13. During the time the accused was living with LB, the accused made threats against him.

14. LB says the first person he spoke to about the sexual abuse was now retired police officer, Mr Wilkinson in 2011. At that time LB told Mr Wilkinson that he wished to report sexual abuse by the accused. LB says that he first spoke with Mr Wilkinson after he had seen the accused in the media in relation to other sexual assault matters.

15. On 23 July 2020, the accused was interviewed by police and admitted knowing SS. He said he had sold her a car and that they had gone on a few dates but that their relationship was purely platonic. He denied living with SS. He said he knew that SS had a couple of kids but that he did not have much to do with them. The accused admitted that he previously lived in Prospect. He admitted that he had previously run a car yard on Port Road. The accused denied bathing anyone’s children. He denied the offending.

    LB’s evidence

    Examination in Chief

16. LB said he was born on 13 June 1979.[3] He knew the accused from when his mother dated him, when LB was around 5 to 7 years old. LB’s parents were not together at that time.[4] He said he knew the accused’s name and it had stuck in his head for years. LB recalled an occasion when he was at the accused’s home when LB’s father was meant to pick him up. His father never came, and that made him feel ‘shit house’.[5]

    [3] T10.6.

    [4] T11.19-21.

    [5] T11.36.

17. LB recalled living in Christie Downs after living with the accused. He suffered physical abuse and then was put into a boy’s home.

18. LB could not remember where he was living before or immediately after his mother met the accused.[6]

    [6] T12.18-21.

19. LB said that at the time his mother met the accused, he was attending Prospect Primary because he could recall ordering pizza for a lunch order.[7] He thought he was at the school for no longer than a week before he was pulled out. He couldn’t remember school but remembered making a lunch order and that he had really wanted pizza. He was living at the house, with his mother, brother and the accused.[8] LB said he was about 7 years old, and that the accused’s house was in Prospect.[9] LB could not remember how long he was living at the house but it was for more than one night.[10]

    [7] T12.24-32.

    [8] T13.

    [9] T13.26-32.

    [10] T14.

20. LB believed there were two ‘older boys’ that would hang around the house with motorbikes and cars.[11] LB did not remember anything about the boys apart from a time when he scratched their bike and got in trouble.[12] LB said he was ‘pretty sure’ the house was in Nailsworth, but that because Nailsworth and Prospect are two parts of one road, he was ‘pretty sure’ it was probably Prospect. LB described a ‘younger lad’ who lived one street over who had a grandma who looked after him. Sometimes LB would be dropped off there. It was where he first tried Vegemite.

    Bathroom Incident

    [11] T13-15.

    [12] T14.

21. LB recalled a time when he was in the bathroom at the accused’s house and the accused asked LB to suck his penis. LB was about 7 years old. LB was naked and his brother was naked in the bath.[13]

    [13] T16.

22. LB described the bathroom as a pinkish colour.[14] There was a vanity area separate from the bathroom with a little doorway in between.[15] He had marked ‘vanity’ and ‘bathroom’ on Exhibit P1, in a drawing he did of the accused’s house.[16]

    [14] T16.23-24.

    [15] T16.24-26.

    [16] T19-20.

23. He described the accused sitting up on the bench, pulling his pants down and asking LB to suck his penis.[17] The accused told LB that if he did not do it, he would smash a beer bottle in LB’s arse or he would get CL to ‘do it’.[18]

    [17] T16.29-33.

    [18] T15.33-35.

24. LB said the accused would always threaten him by saying that if he did not do what he wanted LB to do, he would get CL to do so[19] LB said he sucked the accused’s penis so that it did not happen to his brother and because he did not want a beer bottle ‘smashed in his arse’.[20] LB did not remember how old the accused was but said he was a man. At the time of this incident, LB’s mother was not in the same room. LB thought she was cooking chips.[21]

    [19] T15.12-14.

    [20] T15.37-38.

    [21] T16.35.

25. LB sucked the accused’s penis. He said he was ‘pretty sure’ he told his mother about it and then somehow ended up on the back lawn, waking up from being unconscious with a tea towel wrapped around his neck.[22] When he woke up he ran through the back door, yelling and screaming at his mother. Before that, LB could remember being in a back shed and looking out the window.[23] LB described having ‘fuzzy stars’ and waking up naked on the lawn.[24] LB believed that he became unconscious because he said something to his mother which the accused did not like and then was strangled by the accused.[25] 

    [22] T16.

    [23] T17.19-27.

    [24] T38.7-9.

    [25] T18.1-3.

26. LB’s mother ‘maybe’ called a taxi, and ‘chucked’ him and CL in while they were still naked. LB did not remember where they went after this.[26] That was the last time he saw the accused.[27] The last thing he remembered was the accused chasing his mother through the house and being chucked into a taxi. He said that he couldn’t say exactly what happened but that he remembered ‘coming to’ and being naked on the back lawn with a tea towel.[28] He said it stuck in his brain most of his life.

    Threats

    [26] T16.15-16.

    [27] T16.11-19.

    [28] T17.21-27.

27. LB said that the accused used the same threat every time he was reluctant with the accused, that is, that he would smash a bottle in LB’s arse.[29] LB could not say how many times the accused said this, but it was many times.[30]

    [29] T18.

    [30] T18.19-21.

28. The accused would also make threats to LB that he would ‘do it’ to his brother. [31] LB understood that threat to mean that he would rape him.[32]

    Car Yard Incidents

    [31] T18.25-37.

    [32] T19.4-5.

29. The accused had a car yard on Port Road. LB said he thought it was Old Port Road and that it was still there today. LB said he was raped at the car yard many times.[33] Each time, the accused would use the beer bottle threat.[34] LB said: [35]

    Many of the occasions that I was raped in that building. Many occasions. That’s the most that affects me and sits with me a lot, is that fucking car yard.

    [33] T28.1-2.

    [34] T18.8-16.

    [35] T20.29-32.

30. LB said that the car yard was on a corner and there was an office on the left-hand side with a roller door with a workshop. It was a flat building with windows and a door.[36]

    [36] T28.22-29.

31. LB said there was one car yard but that the accused knew many people up and down Port Road. He could still remember places where the accused had brought him. He could not recall those other places for certain, but the car yard had stuck with him. LB remembered the particular car yard on Port Road on the left-hand side as it veered off onto Old Port Road.[37]

    [37] T21.2-8, T22.19.

32. LB would go to the car yard a lot while living at the accused’s house.

33. When he went there with the accused, the majority of the time there was no one else there. Sometimes the ‘older boys’ would be there. LB could not remember what they looked like, but they were about 19 or 20 years old.[38] When they came to the car yard, they would mainly work on their cars or bikes, but he could not say for certain.[39]

    [38] T22.1-2.

    [39] T22.5-7.

34. LB said his mother would visit her brother straight across the road, and her sister lived around the corner.[40]

    [40] T22.29-33.

35. LB remembered there was a cockatoo at the car yard that could swear.[41]

    [41] T21.

36. He said the accused would rape him in the office, over the desk, on the floor or in the toilet.[42] LB said, ‘there should be like a toilet – toilets to the side of it’. He was there mainly at nighttime.[43]

    [42] T28.31-36.

    [43] T21.13-14.

37. LB had to wipe semen off his backside many times in the office, but he could not say how many.[44] LB said that this occurred while there were people outside trying to buy cars.[45]

    [44] T23.5-13.

    [45] T23.5-14.

38. LB recalled an occasion in the car yard office when the accused put a pillow under LB’s belly to ‘perk him up’. The accused was behind LB and put his penis in LB’s ‘bum’. [46] People were in the car yard looking to buy cars, and that was why the accused told him not to turn the light on. LB could not recall how long this occurred for but it was until the accused ejaculated.[47] It was night-time so it was dark.[48] LB then said no one else was at the caryard on this occasion.[49] LB explained that the office had a reflective tint on the windows. In the dark, with the lights off, you could not see through unless there was a light on inside. That was why he was always told by the accused not to turn the light on.[50]

    [46] T29.9-18

    [47] T29.19-21, T30.8-9.

    [48] T29.28-29.

    [49] T29.24-27.

    [50] T29.

39. LB could not remember whether his brother went to the car yard.[51] He could not remember having gone to the caryard with his mother, but said he may have.[52]

    [51] T30.11,18.

    [52] T30.19-21.

40. On the occasions LB was raped at the car yard, he was there with just the accused, no one else.[53]

    Hotel Incident

    [53] T30.22-28.

41. LB described being taken to a hotel in Elizabeth where he was raped. The accused had told his mother that he was going interstate to buy a car.

42. LB recalled before getting to the hotel, the accused slammed the car into park and LB hit the windscreen.[54] The accused then blamed LB.[55]

    [54] T26.19-25.

    [55] T26.24-25.

43. The accused and LB were in bed. The accused put his penis inside LB’s ‘backside’ and ejaculated on LB’s back.[56] The accused told LB ‘If you turn around I’ll smash a beer bottle in your arse’, so LB never turned around.[57] The accused then let another man into the room.[58] LB heard the door open but was told not to turn around, so he did not see the man’s face. [59] He heard the accused and this man talking at the door. LB recognised the accused’s voice but not that of the other man.[60] The man inserted his penis into LB’s ‘bum’ until he ejaculated onto LB’s back.[61] The man then left.[62] It was nighttime.[63]

    [56] T24.2-9.

    [57] T23.23-24.

    [58] T27.

    [59] T24.19-21.

    [60] T22-2, T24.28-32.

    [61] T24-25.

    [62] T24.12-13.

    [63] T24.32.

44. After the other man left, the accused raped LB for the rest of the night by inserting his penis into LB’s anus ‘like he always did’.[64] LB could not remember what happened after the accused had sex with him again. He believed they may have fallen asleep and then they left in the morning.[65]

    [64] T23.24-28, T26.14-16.

    [65] T26.1-4.

1. LB could remember looking through the round, coloured glass at the hotel.[66]

   [66] T25.5-9.

2. The accused did not buy a car from interstate. He bought it from a car yard on the same corner of Main North and Junction Road. It was a Ford 500, with flip up lights. LB then said he was not sure if the accused did buy a car, but he was looking at one.[67]

   [67] T27.3-9.

3. After the hotel stay, he believed the accused took him home to his mum.[68]

   [68] T27.28.

4. LB could not remember whether he was raped at the car yard after the hotel incident, but that the bathroom incident happened after the car yard.[69]

   [69] T28.12-15.

5. LB said he had taken DS Burns to the house and the car yard. He could not tell her exactly where his uncle’s house was but was ‘pretty sure’ he took her past it.

   Initial Complaint

6. LB said he told his mum that something was going on and that was why they left in the taxi after the bathroom incident.[70] After that, he did not tell anyone for many years. LB said: [71]

   I’m still coming to grips with it myself. I think I told – because I’ve had children of my own, I’ve got a beautiful daughter and all that sort of shit, so I’ve had to tell my missus because of the way that I am. Reasons for stuff the way I’m – so I’m an emotional wreck and all that sort of shit…

   [70] T31.31-32.

   [71] T32.28-29.

7. LB said that he was in the Drug Court and said something to his counsellor. She told him that he had to get it sorted, so he made a statement. Before he made a statement he was speaking to Mr Wilkinson about his mate’s murder. Then Mr Wilkinson came to see him, and he denied knowing anything about the accused. When he first told him about the abuse it was on the phone, but he could not remember what he had said. LB said he decided to tell Mr Wilkinson:[72]

   Because I’ve been an amphetamine user and a drug user most of my life, and I was trying to get off it through the programs and stuff, with counsellors and stuff, and I was figuring – I just couldn’t figure out what I wasn’t going back to being a normal person like everyone else when I gave the drugs up. And then I thought well, it’s got to be this, you know and my counsellor said ‘You’ve had something traumatic happen to you and you have to get it sorted’ and that is what I’ve been doing, it has been taking years to do it. But that’s why I’m doing it. Otherwise I could have forgotten about it for the rest of my life but like even my kids are asking me ‘Why are you so unhappy dad all the time’. It’s something I’ve got to get sorted.

   [72] T34.3-17.

8. LB had seen the accused’s face and name in the media many years after the final incident because the accused was charged with sexual offences relating to other children.[73] LB could not remember what year it was. Seeing this made LB feel ‘empty’ and hearing the accused’s name was ‘putrid’.[74] LB said he did not do anything after seeing this, it just ‘shook the cage’.[75] LB said he spoke to Mr Wilkinson after seeing the accused in the media.[76] He said that he knew it had been after: [77]

   Because that’s when I thought – that’s when I – because I was on Drug Court at the time and I was giving up drugs. And mainly – I’ve been using drugs to medicate and band aid shit and when I give up it’s like – the counsellor said – she didn’t say anything because I didn’t mention it was because of that. I just said – but yea. Going into a police station and making a statement from where I’m fucking from is a big thing so I’ve just put it off, put it off and put it off and put it off. And I’m getting – I’m 44 now I’m not getting any older. And he is fucking not going to be around for long God help him. This process is already blowing my mind away.

   He added: [78]

   … I wrote a statement with Peter Wilkins, right, years ago. Then when it came in the mail I ripped it up and chucked it in my girlfriend’s roof and didn’t do anything with it for five years. And then when I – when I was on Drug Court I explained how – just the depression – so then I have got the statement, I gave it to her because I ripped it in half, I gave it to her to put it together. So she put it together and read it for me and she come out saying ‘You’ve got to do something about it’, you know what I mean, ‘Go do something about it’. That’s when I put the statement nobody could find. Rebecca and all that. And that’s why I had to rewrite a statement for Rebecca because nobody could find this statement that I had put away for five years, I didn’t want anyone to see it, none of my friends – this is not a topic that you let everybody know what has happened in your life because they treat you differently, so I didn’t want everyone to know.

   [73] T34.

   [74] T34.35-36.

   [75] T35.3-4.

   [76] T35.

   [77] T35.11-23.

   [78] T35.28-38, T36.1-7.

9. LB said he had been involved in drugs the majority of his life and had used mainly amphetamines since he was 19. He was injecting amphetamines for 20 years. He said the drugs do not affect his memory.[79]

   [79] T37.23-25.

   Cross-Examination

   Accused’s House

10. In cross-examination, LB could not be certain how long they lived with the accused, and did not know the address of the house but could locate it physically. He believed it was 64 Milner Road, but it could be a street up or down.[80] It was suggested to LB that the accused never lived at that address and LB said he was pretty sure it was the address.[81] LB later accepted that he was not entirely sure where the house was but said it was definitely one of two streets.[82]

    [80] T40.

    [81] T41.3-5.

    [82] T64.21-31.

11. LB remembered being shown a photograph by DS Burns on 8 February 2024. To LB’s recollection, the photograph was not the house that he lived in with the accused.[83]

    Bathroom Incident

    [83] T41.

12. LB could only remember one occasion of sexual abuse at the house which was the bathroom incident.[84] LB’s contact with the accused ended abruptly that day.[85] After being put in the taxi, was the last time they saw the accused.[86]

    [84] T65.5-14.

    [85] T41.26-30.

    [86] T44.1-2.

13. LB remembered waking up on the lawn after passing out with the tea towel around his neck. LB was certain that he was naked when he woke up.[87] He said that was because he had probably just been in the bath.[88]

    [87] T41.26-38.

    [88] T42.1-2.

14. In the backyard, there was a shed, back lawn and then a doorway with glass windows. The accused and his mother were running back into the house arguing.[89] LB could see them when he was on the back lawn.[90]

    [89] T43.

    [90] T42.33-37.

15. LB was shown the transcript of his recorded interview with police on 6 March 2014, when he had said that his mother had thrown him into the back of her car.[91] LB maintained in his evidence that it was a taxi.[92] LB said his mother never owned a car and never had a licence.[93] LB was shown his statement dated 5 November 2021, which also referenced being thrown into the back of his mother’s car. LB said that it is incorrect. He maintained it was a taxi.[94]

    [91] T44-46.

    [92] T46.11-13.

    [93] T46.17-20.

    [94] T46-49.

16. During the incident in the bathroom, his mother was in the kitchen.[95] With reference to Exhibit P1, LB could not say where the kitchen was. LB could not say whether the backyard was to the left of the shed, or whether while going outside into the backyard from the bathroom, you had to walk through the kitchen.[96]

    [95] T42.23-31, T66.5-9.

    [96] T43.4-9.

17. LB could not remember whether he saw his mother when he was heading through into the backyard and could not remember how he got from the bathroom to the backyard.[97]

    [97] T69.7-11.

18. LB believed he had protested because he did not want to suck the accused’s penis anymore, but had not protested on other occasions when he was raped by the accused.[98] On this occasion, LB was prompted to protest because usually the accused would have anal sexual intercourse with him, and this occasion required putting the accused’s penis in his mouth and it was a change.[99] When asked whether the incident on the back lawn had left him with a very bad memory of the man he remembered or knew as Philip Cave, the accused said it had left him with a very big scar of the man, and that he could still remember to that day what the accused did to him.[100]

    [98] T43.17-21.

    [99] T43.24-29.

    [100] T49.24-30.

19. The scar was from the sexual acts and taking away his innocence. He said this caused him to not grow into a ‘normal kid’ and to value his life as next to nothing.[101] LB said he had not been able to move on with his life, had no self- confidence or self-esteem.[102]

    [101] T49.24-38, T50.1-8.

    [102] T50.22-25.

20. LB agreed that the accused has stayed in his thoughts in some way since his childhood. He disagreed that he saw the accused as a figure of evil or fear in his mind.[103]

    [103] T50.11-20.

21. He denied that the accused ever assisted in bathing him and denied that was ever the routine of the house. That one occasion was the only time LB could recall that the accused came into the bathroom while he was taking a bath.[104] LB agreed that by that age, he would have been old enough to bathe and wash himself.[105]

    [104] T65.20-36.

    [105] T66.1-4.

22. LB could not remember the accused’s precise words when he came into the bathroom but thought it was ‘put this in your mouth’.[106] LB could not remember if he was in the bath at the time the accused had come in, but LB was naked because he had been or was in the bath.[107]

    [106] T66.10-17.

    [107] T66.18-25.

23. In his statement dated 8 February 2024, LB said ‘I think I sucked his penis like he told me to but I can’t specifically recall it’ and ‘I think the sequence of events varies a little in my mind because it was so long ago’.[108] In evidence, LB said he was certain that after being asked to suck the accused’s penis he did actually perform that act. LB said he could remember that he did not like the smell of the accused’s penis so he did not want to do it.[109] He said he had told police that he could not specifically recall it because he was dancing around telling the truth.[110] He said that he had difficulty explaining it to everyone.[111] LB could not remember how long he sucked the accused’s penis for.[112]

    [108] T66.31-37.

    [109] T66.38, T67.1-6.

    [110] T67.10-13.

    [111] T67.14-15.

    [112] T67.16-18.

24. LB said the accused was wearing a pair of jeans that he unbuttoned and unzipped.[113] LB was taken to the transcript of his interview with Mr Wilkinson in which LB had said he could not remember what the accused was wearing or whether he was fully naked or partly clothed.[114] LB maintained in evidence that the accused was wearing jeans.[115]

    [113] T67.22-25.

    [114] T67.26-32.

    [115] T67.34-38, T68.1-6.

25. LB said that he could not remember calling out or seeking help from his mother at the time of the bathroom incident.[116] LB was then taken to the transcript of the interview with Mr Wilkinson where LB had said ‘I was calling out to mum or somebody was calling out to my mum to get her attention and then went like and he goes he was threatening me to do shit to my brother’. LB maintained in court that he could not remember.[117] LB said he could not remember the accused threatening him with a beer bottle at that moment.[118]

    [116] T68.7-9.

    [117] T68.10-19.

    [118] T68.20-22.

26. LB could not remember how the attempt to strangle him with a tea towel started, and that he just remembered waking up with the tea towel around his neck.[119] LB could not remember if the accused had the tea towel with him when he was in the bathroom or having seen it in the bathroom.[120]

    Car Yard Incidents

    [119] T68.23-28.

    [120] T69.1-6.

27. The first time the abuse occurred was in the office at the car yard.[121]

    [121] T64.6-11.

28. LB said the accused owned the car yard and was working there at the time. He could not remember how long they would spend at the car yard, or what he would do while the accused did car yard work, aside from playing with the cockatoo.[122]

    [122] T71.25-28.

29. The accused raped LB a number of times at the car yard which he said is located on the left-hand side of Port Road, on the corner when heading towards the Port.[123] LB could not remember the name of the car yard at that time,[124] or how often he went to the car yard with the accused.[125] He said that there were at least two or three times when the abuse occurred at the car yard.[126] When he attended the car yard, no one else went with him, it was just LB and the accused.[127] He could not remember if anyone else worked there.[128] LB said he did not ever get the impression that anyone else could see what was going on, apart from the tinted window out the front.[129]

    [123] T69.25-38, T70.1-3.

    [124] T70.4-5.

    [125] T70.6-10.

    [126] T70.34-38.

    [127] T70.11-14.

    [128] T70.15-16.

    [129] T70.17-19.

30. LB could not remember what grade he was in at school at the time, but that he was staying home with his mum a lot and not going to school.[130]

    [130] T65.1-4.

31. When asked if he ever met a man called Brian at the car yard, LB said he could not remember any other names.[131] He remembered meeting two younger boys at the car yard who were meant to be the accused’s stepsons.[132] They were the same boys who came to the accused’s house.[133]

    [131] T70.20-21.

    [132] T70.24-30.

    [133] T70.30-33.

32. The abuse would occur in the office at the car yard. The accused would use a pillow to prop up LB. LB could not remember where he would get the pillow from or where it was kept. He could not say if it was a couch cushion or a sleeping type pillow.[134]

    [134] T71.1-15.

33. There was an occasion when there were customers around looking at cars while the accused was abusing LB. The accused did not go and speak to them.[135] LB said it was dark/evening time, so it was after hours.[136]

    Hotel Incident

    [135] T71.32-38.

    [136] T72.2-4.

34. LB said the motel was on Main North Road in front of the Elizabeth Shopping Centre.[137] It was single story. He could not remember if he went during the holidays or school time.

    [137] T72.7-22.

35. LB could not remember what sort of car he travelled to the motel in.[138]

    [138] T73.1-5.

36. LB did not know the name or hear anything of the other man who attended at the motel and raped him.[139]

    [139] T73.6-9.

37. LB said that he was pretty sure he returned to the house the next day.[140] It was only the one night that they stayed at the hotel.[141] LB could not remember what he told his mother about the trip on his return but thought that he had said nothing.[142]

    Injuries

    [140] T73.12-13.

    [141] T73.14-15.

    [142] T73.16-18.

38. LB was not aware of the accused using any lubrication when he was raping him. LB thought that when he was raped more than once, the accused would use his first semen as lubricant.[143]

    [143] T73.202-7.

39. LB could not remember if the acts ever caused him any injuries. He thought that it caused him pain.[144] LB said it was likely it caused him injuries such as bleeding, but he did not have a specific recollection. LB could not recall ever seeking any treatment from a doctor as a result of the abuse. LB did not ever discuss the abuse or show his mother any injuries. LB did not disclose what had occurred to his mother until a couple of years prior to giving evidence.[145]

    Initial Complaint

    [144] T73.32-38.

    [145] T74.1-17.

40. The first person LB spoke to about the accused was Mr Wilkinson. This was in about 2011, around 25 years after the events.[146] 

    [146] T74.18-21.

41. At some point, Mr Wilkinson visited LB at his home in Morphett Vale.[147] LB said that was a few years after the first time LB spoke to Mr Wilkinson on the phone.[148] Mr Wilkinson asked him specifically about the accused. LB denied knowing anything, even though he did know.[149] At that time, LB could not remember what the accused looked like. LB remembered the accused’s name as a friend of his mother’s when he was about 6 or 7 years old.[150]

    [147] T38.24-33.

    [148] T38.

    [149] T39.

    [150] Ibid.

42. LB agreed that when Detective Wilkinson first came to talk to him, LB said nothing had happened with the accused and that happened on two occasions.[151]

    [151] T50.26-34.

43. Later, in 2011, LB contacted Mr Wilkinson by telephone and reported what happened.[152] LB disagreed that contact was prompted by the reports LB had seen of the accused.[153] The accused’s name in the media was ‘just a spark’. In his statement of 5 November 2021, LB had said that he decided to report the abuse when he saw the accused’s name on TV. LB said: [154]

    Well, because I’ve always denied it most of my life that it didn’t happen to me and then as you grow up you just think ‘Well, shit’. Yeah, that’s not when I decided to report him, its just – it was a build-up. It’s not like I seen him on TV and ‘I’ve got to do something about it’. I maybe seen him on TV, I didn’t tell anybody about his name’s, like, rang a bell in my mind. Then I thought, you know what I mean? He’s a deadset – it was just then it sparked something in my mind. Maybe I should fucking do something about it because I had to live with it in my life, I’m deadset a good person but it made me get into a shit person having this burden over my head my whole life. If can do something good about a shit person, then maybe I can fucking be a good person. Put it down to – I’m just fed up.

    [152] T50.35-38.

    [153] T51.1-4.

    [154] T51.25-38, T52.1-2.

44. LB agreed that in 2011 and 2012, Western Adelaide CIB were contacting him quite regularly in order to get his statement. LB agreed and said he kept denying them and was on drugs. He said he was ‘just letting it go’.

45. Mr Wilkinson was the only police officer who he was in contact with. LB denied that he spoke to Mr Wilkinson because he thought he would believe him as Mr Wilkinson believed the accused was a sex offender.[155] LB said Mr Wilkinson was the only police officer whose name he knew. LB denied that he did not believe that other people aside from Mr Wilkinson would believe him at the time.[156]

    [155] T53.2-29.

    [156] T53.30-32.

46. LB agreed that his report to Mr Wilkinson was triggered by seeing the accused in the newspaper and some of the emotions he had at the time.[157] LB heard the accused’s name on television and saw it in the media.[158] LB said he had researched the accused by looking at his history around sexual offending. LB did not think it was possible that the research may have affected the way that he remembered the accused.[159] LB agreed he had seen that the accused was charged or convicted of sexual offences against children.[160]

    [157] T74.22-25.

    [158] T74.22-35.

    [159] T74.36-38, T75.1-3.

    [160] T76.6-9.

47. LB disagreed that when he first spoke to Mr Wilkinson, he denied the abuse because that was the truth.[161] It was suggested to LB that when he saw or heard the accused on TV, given what the accused had done to him with the tea towel and his last experience being very traumatic, LB thought he may have done something sexually to him as well, even though LB’s memories of that period of living with the accused were not strong. LB said he was not mistaken.[162]

    [161] T76.10-14.

    [162] T76.25-38.

48. LB denied that having seen the accused on TV and having lived with him in a difficult situation, that he saw this as an opportunity to obtain victims of crime compensation.[163]

    [163] T77.1-4.

49. LB denied that given his terrible final memory of the accused and the information he obtained in the media and through research, that he may have inadvertently remembered things that either did not happen or that someone else did to him.[164]

    [164] T77.5-29.

50. LB was taken to his statement dated 5 November 2021, where he had said that he decided to report the offending when he saw the accused’s name on the TV and that was why he wanted to report it after all these years. In evidence, LB denied that was why he decided to report it, and explained that he had always denied the abuse and it was a build-up. LB had seen the accused on TV which sparked something in his mind that maybe he had to do something about it. LB said that he thought if he could do something good about a ‘shit person’ then maybe he could be a good person. He put it down to just being fed up.[165]

    [165] T51.18-38, T52.1-2.

51. In the recorded interview with Mr Wilkinson at LB’s home in Hackham West, LB spoke about what had happened with the accused. LB told him the abuse occurred when he was about 6 years old after he had moved into the house but could not remember exactly when the abuse started. LB could not remember moving into the house.[166]

    [166] T63.36-38, T64.1-5.

1. Mr Wilkinson referred LB to the Western Adelaide CIB. Later, LB gave a statement to Port Adelaide police.[167]

   Conversations with his Mother

   [167] T52.17-38.

2. On the day they left the house for the final time, LB said he told his mother something, but he could not recall what he said. He said it ‘upset something’ and that is why they were thrown in the back of the car.[168] LB did not disclose to her what he told Mr Wilkinson.[169] LB could not remember whether the reason his mother packed up and left was because of what the accused did with the tea towel as opposed to anything LB said to her.[170]

   [168] T56.5-22.

   [169] T56.23-25.

   [170] T56.32-38.

3. LB said he does not have frequent contact with SS.[171] He had denied to her that anything happened with the accused.[172] He denied having conversations with SS about living at the house generally. There was one time where LB was intoxicated, and he said something, and SS said ‘I thought something may have happened’ but that is all he ‘got out of her’.[173]

   [171] T57.1-9.

   [172] T57.8-14.

   [173] T57.17-20.

4. LB said he did not recall having a conversation with his mother about being picked on by other boys.[174] LB was taken to his interview transcript where he said ‘some other younger boys, older boys but they were like teenagers or whatever, I think they used to pick on me. My mother used to say that they used to pick on me.’ LB said he could not remember this,[175] and did not know why he would have said that. He denied speaking to his mother about living with the accused generally.[176] Ultimately, LB could not remember speaking to his mother about living at the accused’s house between the time they left the house and 2014.[177]

   [174] T57.21-26.

   [175] T57.27-36.

   [176] T58-59.

   [177] T62.10-21.

5. LB said he did not know how his mother met the accused and whether they were in a romantic relationship.[178] He did not feel like his mother had a particular reason to protect the accused. LB said that the reason he did not tell his mother about the abuse at the time was because at 7 years old he was not quite sure what was going on and did not know what he did to deserve it.[179] LB denied that he was worried his mother would not believe him. LB referenced the threat the accused would make about smashing a beer bottle in his arse. LB said the reason he did not tell his mother was more concern about what the accused might do, rather than what his mother might do.[180]

   [178] T62.22-28.

   [179] T62.32-28, T63.1-2.

   [180] T63.11-21.

   Re-Examination

6. In re-examination, LB said he knew that it was a taxi that he left in because his mother did not have a licence or a car. LB did not remember there being another person driving the car.[181]

   [181] T78.1-12.

7. LB told Mr Wilkinson on two occasions that nothing sexual had occurred with the accused because LB did not want to deal with it. He did not want people to know that he had been sexually abused and raped by a man. He did not want to hurt his family, siblings, brothers, sisters, friends, or anybody. He kept it quiet, otherwise he could not move on with his life.[182]

   [182] T78.13-30.

8. LB said he had ripped up his statement to police because he was taking and selling drugs, so he did not want people to look at him like he was a ‘dog’.[183] LB said that he suffers from paranoid schizophrenia and is always worrying about things. He ripped it up so nobody saw it.[184]

   SS

   [183] T78.34-38.

   [184] T79.1-6.

   Examination in Chief

9. SS said she has four children. Both LB and CL have the same father and her other two children have a different father.[185]

   [185] T80.9-23.

10. LB has two children, aged 11 and about 6 or 7.[186]

    Relationship with Accused

    [186] T81.17-18.

11. SS’s relationship with LB’s father ended when LB was a baby and she was three months pregnant with CL.[187] After the relationship ended, she remained at a house in Smithfield Plains but lived on her own.[188]

    [187] T81.20-38.

    [188] T81.37-38, T82.1-9.

12. She first met the accused when she was looking at cars in a car yard on Old Port Road. The accused was the salesman.[189] She could not remember when this was, but LB was around 6 or 7 and CL was around four years old. At the time, SS was living with her mother in Birkenhead and was single.[190]

    [189] T82.36-38, T83.1-2.

    [190] T82.15-38.

13. She said that she and the accused ‘got friendly’. About a month after she met the accused, they went out for coffee. They had coffee around three or four times and the accused offered her the use of cars from the car yard.[191] The accused let her use a silver Mazda. [192] At this time, SS and her mother did not get along. She was seeing the accused regularly and she and her sons went to live with him about one month after she first met him.[193]

    [191] T83.

    [192] T83.31-38, T84.1-4.

    [193] T84.10-22, T85.16-20.

14. SS said that she went back to the car yard a couple of times but could not remember when this was.[194]

    [194] T83.31-38, T84.1-4.

15. SS said she moved into a house that the accused was already living in down Main North Road. She did not know the suburb. There were two other people living there. The accused had told her that one of them was his son, but she had later found out that was not the case.[195] She thought his name was Simon.[196] He was tall and had blonde hair.[197] There was a girl living there who was said to have been in a relationship with the person she thought was Simon.

    [195] T85.

    [196] T86.6.

    [197] T86.9-11.

16. When she moved into the house, she understood that she and the accused were ‘boyfriend and girlfriend’ but said that they ‘were not really romantic’.

17. She did not work. The accused told her that she did not have to pay him anything and the accused may have given her a little bit of money.[198] She would go and buy what they needed.[199] SS said that she did not have her own car when living with the accused. She would use cars from the car yard and was able to drive at the time.[200]

    [198] T87.1.

    [199] T87.32-37.

    [200] T88.2-10.

18. The accused took LB to school but not every day.[201] Sometimes the accused would take LB to the car yard and sometimes he would take him to school. She understood that the accused would drop LB off at the school that was down the road from where SS had been living with her mother. She said LB had attended quite a few schools but couldn’t remember how many because she had moved a lot.

    [201] T89.8-11.

19. She said that the accused would take LB to the car yard sometimes but not that often.[202] She did not know if the accused took LB anywhere else other than the car yard or school.[203] SS estimated that the accused took LB away from the house two or three days a week.

    [202] T88.23-35.

    [203] T88.32-38, T89.1-7.

20. When the accused would take LB away from the house to the car yard or school, he would have a conversation with her about it beforehand. The accused would bring LB home.[204]

    [204] T89.12-24.

21. SS said that she never took LB to the car yard, it was always the accused. She could not say why she allowed the accused to take LB to the car yard but trusted the accused at the time.[205] The accused never took CL away from the house because he was much younger.

    [205] T89.27-38.

22. As far as she knew, the accused’s work did not require any travel.[206]

    [206] T87.24-31.

23. SS said that they lived at the accused’s house for around five or six months. LB and CL had a room, the accused and she shared a room, and the other man and woman had their room. There were at least three bedrooms. She said that she and the accused always slept in the same room together. She did not know of any times that the accused was not at the house sleeping when she slept there. [207]

    [207] T87.3-23.

24. SS thought that LB and the accused got along ‘not too bad’. Sometimes the accused would say that her children were naughty.

25. During the time that she lived with the accused, LB and CL’s father was not assisting with or seeing them and SS’s mother did not help with them.

26. When living with the accused, LB was old enough to wash himself. She would wash and dry CL. She would keep an eye on them while they were showering or bathing and would never normally leave them alone. The accused never bathed the children.[208]

    [208] T91.2-9.

27. At some point, SS moved out of the accused’s house because the boy that lived there would be cruel to LB. He would push him; the accused would shove him onto him and SS would have to stand in.[209] The accused would stand there and basically laugh. SS said she would intervene.

    Choking Incident

    [209] T91.10-20.

28. SS recalled a time when the accused tried choking LB. She was doing the dishes at the time.

29. The accused walked in and got a tea towel. SS could see outside through a window to the boys playing in the backyard at the house. The accused got a tea towel and tried choking LB. The accused had the tea towel around LB’s neck. She went outside, asked the accused what he was doing and took off the tea towel. When she went out there, the accused let go, went back inside and ‘took off’. SS said that she got the children and left in a taxi. She did not take the car because it was from the car yard. She went back to her mother’s house and never saw the accused again. She stayed at her mother’s house until she got her own house but could not recall where that was.[210]

    [210] T93.14-22.

    Cross-Examination

30. In cross-examination, SS said she met the accused in 1983 or 1984 when she was looking to buy a car. She borrowed cars from the car yard. Her relationship with the accused advanced and she eventually moved in with him.[211]

    [211] T93.24-33.

31. There was another older boy living at the accused’s house. There were occasions when she saw that boy pushing LB. She would intervene and stop that happening because she was protective of LB. If she saw anything happening to her son she would step in and put a stop to it.[212]

    Bathroom Incident

    [212] T93.34-38, T94.2-10.

32. When the accused tried to choke LB in the backyard with a tea towel, she was in the kitchen doing dishes. The boys were playing in the backyard and she could see them playing through the window.[213] The accused had just come home.[214]

    [213] T94.11-20.

    [214] T94.33-38.

33. She saw the accused grab a tea towel from the kitchen. He went out to the backyard and attempted to choke LB with it. She did not know what had triggered that. She went out there as soon as she saw it and stopped the accused. She could not recall what the boys were wearing.[215] She did not see LB naked in the backyard at any time, which she said she would have remembered.[216]

    [215] T95.1-30.

    [216] T96.11-12.

34. When SS intervened, she thought they might have ‘had words’ but in the end she just got out of there. She called a taxi and put the kids in the car. She took what she could grab and went back and stayed with her mother.[217] The boys were fully clothed at that time.[218]

    [217] T96.8-22.

    [218] T97.11-12.

35. She did not call police about what happened. She said she just wanted to leave because it was unsafe for her and her children. As soon as she felt that living with the accused was unsafe, she collected her children and left because they were her main priority.[219]

    [219] T97.20-35.

36. The house had two bedrooms, with a laundry and bathroom but she did not remember the layout.[220] If you were in the bathroom and you wanted to go to the backyard, she did not remember if you would need to go through the kitchen.[221] SS was shown Exhibit P1. She did not remember whether Exhibit P1 accorded with her memory. She said she had very little memory of the layout of the house because they did not stay there long.[222]

    [220] T95.32-38.

    [221] T96.1-4.

    [222] T102.

37. SS said she never witnessed any sexual activity between the accused and LB.[223] If she had, she would have left the house. This was because it was a relatively short relationship, and she had no reason to defend the accused at that time. Her priority was to protect her sons which is why she left.[224]

    [223] T97.36-38.

    [224] T98.1-21.

38. The accused had not made any threats that might have made her reluctant to protect her children or contact police.[225]

    [225] T98.22-25.

39. LB and CL would bathe together. She would not have allowed the accused to be involved in bathing the children. When the boys were bathing together, she was in the bathroom all the time keeping an eye on them.[226] There was never a time when she left both children in the bathroom on their own while bathing.

    Car Yard

    [226] T104.

40. The accused would take LB to the car yard during the day and did not let the accused take LB to the car yard at night.[227]

    Hotel Incident

    [227] T99.4-6.

41. SS said she did not remember any occasions where the accused was required to travel to work or was absent from the home at nighttime. He would sometimes go for overnight stays but not that often.[228]

    [228] T99.

42. SS said the accused may have taken LB to Melbourne but very rarely. Sometimes she did not let him take LB but sometimes she did. SS said she thought they did go on an overnight trip.[229] She was shown her statement dated 15 September 2020, where she said she did not recall any nights where LB and the accused stayed away from home. In her evidence, she said she thought there might have been a couple of times that the accused took LB to Melbourne for business and that might have involved overnight stays. She could not say which version was correct. SS said it was such a long time ago that she did not remember.[230]

    [229] Ibid.

    [230] T101.

43. She said she did not recall any occasions when LB was home alone with the accused.[231]

    [231] T102.24-26.

44. The accused and LB got along quite well in the general sense.[232]

    Injuries

    [232] T102.

45. Prior to the tea towel incident, SS would see the boy at the house push LB, while the accused would stand there and laugh. She never observed any injuries on LB that might have been inflicted by the accused. If she had seen any injuries SS said she would have ‘had a go’ at the accused, and there would have been an argument.[233]

    Conversations with LB

    [233] T103-104.

46. After the time that she left the accused’s house, she never had discussions with LB about the accused or the time living at the house.[234] LB did end up telling her that the accused had allegedly raped him. He told her this when he was living at her house, which was within the last three years.[235] Prior to this, LB never disclosed anything that the accused did to him.[236]

    [234] T105.4-7.

    [235] T105.10-24.

    [236] T105.

47. SS said that she and the accused were in a boyfriend/girlfriend relationship. They slept in the same bed, but they were not intimate. They were not in a sexual relationship.[237]

    [237] T106.

48. SS denied that she was living with her mother, staying with the accused from time to time. She said she was living at the accused’s house on a full-time basis.

    Re-Examination

49. In re-examination, SS said that when living at the house, LB was 6 or 7 and CL was younger.[238]

    [238] Ibid.

50. SS said that when her children were in the bath she could have been outside the bathroom but not too far away. If she heard a noise she could go and check on them.[239]

    Peter Wilkinson

    [239] T107.

    Evidence in Chief

51. Mr Wilkinson is a retired Detective Brevet Sergeant.

52. At some stage when working as a police officer, he spoke with LB about four times.[240]

    [240] T108.

53. He had a couple of telephone conversations with LB and then LB came into the office and gave further details. Mr Wilkinson raised a police incident report as a result.[241]

    [241] Ibid.

54. LB first contacted Mr Wilkinson on 10 November 2011. He received a phone call from him when LB said he wanted to report some historical sexual abuse by the accused. LB said that he had been sexually abused by Philip Cave when he was 6 or 7 years old which was around 1985 or 1986 at Albert Park and other places, predominately at Port Road, Albert Park. LB said that some offending happened at Elizabeth and some at Prospect.[242]

    [242] T109-110.

55. Prior to that conversation, Mr Wilkinson had previous contact with LB in around 1997-1998, in relation to him being a possible witness in a murder investigation. As a result of information Mr Wilkinson received indicating LB may be a witness or a victim in relation to the accused, he contacted LB again.[243]

    [243] T110.

56. After the phone conversation on 10 November 2011, Mr Wilkinson had further phone contact with LB on 16 November 2011, when he told LB to report the matter to a police station.[244]

    [244] T110.

    Cross-Examination

57. In cross-examination, Mr Wilkinson said that when he first spoke with LB, he enquired whether LB was a victim of the accused. This was in person at an address in the southern suburbs. He specifically mentioned the accused to LB and LB did not disclose anything and denied knowing anything about it. That was the only time that LB denied it.[245]

    [245] T111.

58. LB contacted him later in 2011 and Mr Wilkinson took his statement at some stage. Mr Wilkinson learnt that the matter had not progressed because LB was not cooperating or keeping appointments. He understood that Port Adelaide CIB went to some trouble trying to contact LB to obtain a statement from him.[246]

    [246] T112.

    Re-Examination

59. In re-examination, Mr Wilkinson said that when he spoke to LB and LB denied knowing anything about the sexual offending by the accused, Mr Wilkinson met LB at his home address and spoke with him in his front yard. There were one or two other people there, but Mr Wilkinson could not remember who they were.[247] They appeared to be known to LB.[248]

    [247] Ibid.

    [248] Ibid.

60. Mr Wilkinson said he thought he had pulled LB to one side out of earshot of the others. He told LB that he was investigating some historical sexual abuse and that LB’s name had come up in an investigation. He mentioned the accused by name and LB denied knowing anything about it or that anything happened to him along those lines. Mr Wilkinson said that he thought he probably gave LB his contact card and then left.[249] That conversation would have been around 1997 or 1998.[250]

    [249] Ibid.

    [250] T113.

61. He spoke with LB again on 16 November 2011. At that stage, he asked LB to report the matter to a police station. LB said that he would find that very difficult to do as he did not have a good relationship with his local police and was reluctant to attend on police. LB subsequently went and saw Mr Wilkinson at his office on 23 November 2011.[251]

    [251] Ibid.

62. The file was then sent to Western Adelaide CIB to investigate.

63. LB was informed that he would need to speak to another police officer about the matter, or that they could contact him once they received the file. Mr Wilkinson had no further involvement at that time because Western Adelaide CIB were going to investigate.[252]

    [252] T114.

    DS Rebecca Burns’ evidence

64. DS Burns had been the investigating officer in this matter since 2019. She shared the role with another officer, Brevet Sergeant Scott Howard (BS Howard), who interviewed the accused with her on 23 July 2020.[253]

    [253] T117.

65. On 24 March 2022, DS Burns went for a drive with LB. They were driving on Port Road, and LB pointed to premises at 1060 Port Road Albert Park where he said he had been sexually abused.[254] They drove to an address where he recalled his uncle had previously resided in Gordon Street, Albert Park.[255]

    [254] T118.

    [255] T118.7-15.

66. She was shown Exhibit P2, a document of two maps showing the location of the car yard on Port Road, the uncle’s house, and an address on Milner Road, Prospect, where DS Burns understood the accused resided when LB was living with him.[256]

    [256] T119.

67. The Port Road address appeared to be a car yard that was now selling boats. Photos of the premises were taken.[257]

    [257] Exhibit P3.

68. DS Burns made some phone inquiries with the owner of the Elizabeth Motor Inn at Ifould Street, Elizabeth South, on the corner with Main North Rd.[258]

    [258] T121.

69. The business records did not go as far back as the dates of the alleged offending.[259]

    [259] T120.23-29.

    Cross-Examination

70. In cross-examination, DS Burns said she had gone for a drive with LB to try and identify the location of LB’s Uncle’s house. It was just coincidence that she was driving along Port Road and the accused identified the car yard. She did not take steps to go and identify the other location said to be involved in this offending.[260]

    [260] T122.29-38, T123.1.

1. DS Burns was aware of other car yards around 1060 Port Road.[261] She did not seize any business records that put the accused at that particular car yard. She could not say, aside from the evidence of LB, that the accused worked at that car yard or one of the other small car yards.[262]

   [261] T123.2-7.

   [262] T123.13-17.

2. She did not take LB to the location of the Elizabeth Motor Inn to identify the motel.[263] She did not have any evidence that the accused had ever visited the motel.[264]

   [263] T123.18-21.

   [264] T123.27-29.

3. On 8 February 2024, she spoke with LB and showed him a photo of a house at Milner Rd, Prospect.[265] The photograph was a mirror image of premises at 60 Milne Rd. She said this was identified by LB as the address where SS had previously resided. When she showed LB that photograph, he did not recognise it as being the particular address of the house where he lived and there was no record that demonstrated the accused had ever lived at that address.[266]

   [265] T123.30-34.

   [266] T124.8-15.

   Record of Interview of Philip Cave

4. A police interview was conducted with the accused on 23 July 2020.

5. After being advised of his rights, the accused agreed to participate in the interview. He was advised that the purpose of the interview was to discuss the historical sexual exploitation of a child namely LB. He was advised LB was 6 or 7 years of age at the time and the offending happened on numerous occasions at a car yard on Port Road at Alberton, at a house in Prospect and in a hotel room in Elizabeth between 1985 and 1986. He agreed that he ran a car yard on Port Road at Alberton. He lived in Prospect around that time with a female who he named. He said he was in a stable relationship with her, which had started in Melbourne. He lived in Prospect when he came back from Melbourne. He lived at Johns Road, Prospect and moved to Barker Road. He never lived at Milner Road.[267]

   [267] Transcribed as Melner Road in the transcript MFIP5.

6. He said he worked in a car yard across the road from Prospect, right up by Radio Rentals.

7. The accused agreed that he knew SS. He said he sold her a car and did go out with her maybe three times. On one occasion they went to SS’s mother’s house down at the beach. When asked whether he ever lived with SS he said, ‘she has told people we lived together, this is… how I remember her name’. He described his relationship with SS as ‘just platonic relationship’.

8. He said that he had met SS’s children. He knew she had a couple of kids. They were very, very little and around 4 or 5. He did not remember their names. They were both males. He said he certainly wouldn’t have taken them to a hotel. He said that he did a fair bit of travelling backwards and forwards between Melbourne and Adelaide which would have been in the mid to early 80’s. He said that he was in gaol in Melbourne for fraud of a motor vehicle and spent months in gaol. That was in the 80’s. He said, ‘but apart from that it’s pretty much a jumble’. He agreed that he moved around a bit. He said that between the period of around 1984, 1985 and 1986 he was between Melbourne and Adelaide a fair bit.

9. He recalled working at All Season’s Motors on Port Road around Alberton. He said he was pretty sure it was Alberton because there was a huge cemetery across the road. He said it was right at the intersection of Port Road and Old Port Road.

10. He denied having any sort of sexual relationship with SS. He thought that most of the time SS’s children stayed with her mother, when they went out. That was how he knew her mother lived down by the beach at Semaphore. He agreed that the car yard could have been called Countdown Cars. The accused said that he worked at a car yard right opposite Radio Rentals. He said it could have been very, very close to where the police were talking about.

11. The accused denied having asked LB to suck his penis and said that he did not believe that he was ever alone with those children.

12. He said he was never alone in the car yard. It was definitely no place to take children. He denied ever having sex with LB and denied ever making threats against LB or his brother.

13. The accused was informed that LB alleged that he was raped by the accused and another male in a hotel room in Elizabeth and had told SS that the accused had to go to Melbourne to get a car and was taking LB on a trip. The accused raised whether LB was getting the accused mixed up with someone called Brian, who worked at the car yard.

14. When asked what reason LB would have been taken to the car yard, the accused said, ‘well he would have come with his mother, he wouldn’t have been there on his own, I can tell you that much’. He said SS used to come to the car yard. She bought a car from there and would drop in for coffee from time to time.

15. He described Brian as having long blondish hair.

16. The accused said that he seldom worked at the car yard on his own. It was always either Brian who was the mechanic or the other salesman who was there.

17. The accused said that the allegation that he had threatened violence against LB had angered him and ‘got my blood boiling’. He said he would like to end the interview there. He said that really annoyed him and angered and upset him. He said he never did that to anybody and never would threaten a little child.

    Exhibit D6

18. Defence Counsel tendered Exhibit D6, a case history from the Office of Corrections in Victoria that placed the accused in Victoria in November 2016.

19. The Office of Corrections Victoria case history records that the accused appeared before the Melbourne County Court on 17 December 1987. The circumstances surrounding the offence for which he appeared were that in November 1986 the accused bought a car, using a false name to obtain a car loan easier. Person or persons whose names had been redacted are said to have taken the car to South Australia and sold it to a car dealer. The accused was sentenced to 18 months imprisonment, to serve a minimum of six months. During an assessment by corrections, the accused said that he had no car and wanted to stay in the metropolitan area because of this and because of his job, which he understood he could return to.

    Prosecution address

20. The prosecution submitted that the first two elements of the charged offence would not cause difficulty in that the accused was an adult during the period of the relationship and LB was a child during the relevant time.

21. As to the third element, if LB and SS’s evidence was accepted that is, that LB lived with the accused for some time with SS and that the accused took him to the car yard and other places during this time, then I would have no difficulty with finding this element proven.

22. With respect to the fourth element, the unlawful sexual acts specifically particularised are that the accused inserted his penis into LB’s anus on more than one occasion and that the accused has incited, caused, or procured LB to engage in anal intercourse with another person.

23. The prosecutor submitted that LB gave a compelling account about sexual abuse perpetrated against him by the accused some 40 years ago. LB was able to recall key details about the abuse, including, the accused inserting his penis into his anus at the car yard on multiple occasions and could specifically recall wiping semen from his backside.

24. LB could recall the accused taking him to the motel in Elizabeth and inserting his penis in his anus multiple times and that another man came into the motel and also did the same.

25. LB could recall the final incident that occurred at the house, where the accused caused LB to perform fellatio on him and then ended up on the lawn with a tea towel around his neck.

26. In the prosecutor’s submission, LB’s account about the incident that occurred in the bathroom was very compelling. That is, that the accused would usually have sex with him from behind but that this was a deviation from the typical manner in which the accused sexually assaulted him and LB did not want to put the accused's penis in his mouth, which caused him to protest and the accused to become violent towards him.

27. LB made many concessions about things that he could and could not remember which, again, was consistent with what a person may be expected to remember with the passage of time about such events.

28. LB was up-front in his evidence about his criminal history and his drug use in the past, which lent some support to his overall credibility as a witness.

29. While there were various inconsistencies in LB’s account, they did not detract from the overall credibility of LB’s account about the material aspects.

30. In the prosecutor’s submission, LB’s evidence in re-examination as to the reason for not previously telling Mr Wilkinson about the offending, was compelling. As LB said, he did not want to deal with it and did not want people to know that he had been sexually abused and raped by a man, consistent with the way a person in LB’s position may be expected to have behaved.

31. Several aspects of LB’s evidence were corroborated by the evidence of his mother. Both gave evidence that they had lived for a time, when LB was, on SS’s evidence, 6 or 7, with the accused at a house somewhere off of Main North Road, and after SS had formed a relationship with the accused.

32. SS said that the accused took LB to school and to the car yard regularly, whilst her other son would remain with her, providing the accused with the opportunity to commit the acts as alleged at the car yard.

33. LB’s evidence about the final occasion he saw the accused after the accused had strangled him with a tea towel was, in the prosecutor’s submission, supported by the evidence of SS to the extent that she too said she had seen the accused choking LB with a tea towel, and that after this incident she left the house and did not see the accused again.

34. With respect to that incident, there was something of an inconsistency in the accounts of LB and SS insofar as SS said that the boys had been outside playing prior to the accused choking LB with the tea towel; whereas LB said he had been in the bathroom. In the prosecutor’s submission, that discrepancy could be explained by the passage of time, and in particular that SS may not be expected to recall specifically where her children were prior to the accused choking LB.

35. Alternatively, the prosecutor argued, it is possible, and consistent with LB’s evidence that what occurred in the bathroom, that is the accused causing LB to perform fellatio on him, simply happened at some time prior to the choking.

36. SS also gave evidence that when she was living with the accused and the children were in the bath, she would keep, 'an eye on them'. In re-examination she indicated that what she meant by this was that she would not be too far away; and sometimes, may have been outside of the bathroom, consistent with LB’s account regarding the bathroom incident and not necessarily indicative of the incident not having occurred as alleged by LB.

37. Some of the locations where the abuse was alleged to have occurred were corroborated, to a limited extent, by investigations conducted by the police.

38. LB said that the car yard where he was abused was on Port Road where it veers off to Old Port Road. He said he identified the car yard to DS Burns, who said that the car yard was identified as being at 1060 Port Road, Albert Park.

39. DS Burns said there is a boat yard at the location where the car yard was identified to be, and photographs of the office building at the yard appeared consistent with the office described by LB insofar as it was an enclosed structure that had a toilet in it.

40. There was also evidence regarding the hotel. DS Burns, said that there is a hotel in Elizabeth called the Elizabeth Motor Inn, which the prosecutor submitted, is in the same approximate location LB described as being on Main North Road and also across the road from the Elizabeth Shopping Centre.

41. With respect to LB and SS being unable to specifically identify the house where they lived with the accused, that, in the prosecutor’s submission, did not detract from the account they gave and can be explained by the passage of time from when they lived at that address.

42. Various pieces of LB’s account were corroborated by aspects of the accused's record of interview. Firstly, that the accused admitted to knowing SS and selling her a car and dating her for some time. The accused also admitted to knowing that SS had a couple of kids and knew they were young at the time he would have known them, in accordance with both LB and SS’s evidence.

43. The accused admitted that he ran the car yard on Port Road, which would suggest that he would have been able to access the premises by himself, without others being present, corroborating LB’s account where he said the accused would often take him into the office at the car yard when nobody else was there and sexually assault him.

44. The accused also admitted that he lived in Prospect for some time.

45. In the record of interview, LB’s account regarding the hotel incident is corroborated to an extent, insofar as LB said that the accused took him to the motel under the pretext of going to Melbourne to buy a car and the accused said in the record of interview that he did a fair bit of travelling between Melbourne and Adelaide.

46. As to a supposed motive to lie, where it was suggested to LB during cross-examination, that having lived with the accused for some time, LB may see this as an opportunity to obtain victims of crime compensation, there is no evidence that LB has actually made such an application for victims of crime compensation, nor is there any specific evidence that indicates he has such an intention to make a claim. Even if he were to make such an application or be in a position to make such an application, that would not detract, in the prosecutor’s submission, from the veracity of LB’s account about the offending because a person who had suffered such acts of sexual abuse against them, as LB alleges, may quite rightly, be motivated to seek some sort of compensation.

47. LB said that the person he told about the sexual abuse was the now retired police officer, Mr Wilkinson, who gave evidence that the first time LB told him about the sexual offending was on 10 November 2011.

48. While LB said he had spoken to others about the abuse, the evidence establishes that he only spoke to them after he spoke to Mr Wilkinson. In particular, he said he had spoken to his ‘ex-missus’ after he made the statement to Mr Wilkinson. He also said that he had spoken to a counsellor about the abuse but, again, that was 'years after' he had spoken to Mr Wilkinson.

49. LB also gave evidence that he had spoken to some other people about the abuse but the evidence regarding what was said to those people lacked sufficient detail to be regarded as referable to the charged conduct and therefore is incapable of being regarded as the initial complaint. In particular, LB said that he may have said something to his mother when he was a bit older, got drunk and lost his ‘shit’.

50. Further, SS said that LB told her that the accused had allegedly raped him, but he had said that within the last three years. Similarly, that cannot be regarded as the initial complaint, as it would have been well after 2011.

51. Mr Wilkinson said that LB had contacted him by phone and said that he wanted to report some historical sexual abuse by the accused. He told Mr Wilkinson that he had been sexually abused by Philip Cave when he was aged 6 or 7 years old at Albert Park and other places, with most of the offences occurring at Port Road, Albert Park and that some had happened at Elizabeth and some at Prospect.

52. The evidence of complaint given by Mr Wilkinson and LB demonstrated a significant degree of consistency of conduct. The actual content of the complaint was similar to the evidence given in court in that both in the conversation with Mr Wilkinson and in LB’s evidence, he said he had been sexually abused by the accused; was aged about 6 or 7 when the abuse occurred; the offending happened at multiple locations, and that the locations were the same as what he said in evidence, namely, that the abuse occurred at Port Road, Albert Park, that is at the car yard and some happened at Elizabeth, that is, at the motel, and some at Prospect, and that is the house LB was residing at with the accused.

53. LB’s evidence regarding why he did not speak to anybody earlier about the offending and why he chose to speak with Peter Wilkinson in 2011 demonstrated a degree of consistency of conduct. LB said that the reason he did not speak to anybody earlier was because he did not have any family support and that it was not something that he would want to bring up. A person who has been abused as LB alleged, may be expected to act in this way.

54. As to the timing of the complaint, LB gave evidence that he spoke to Mr Wilkinson after he had seen the accused in the media in the context of the accused sexually touching kids and apparently going to gaol for a long time. LB also said that he did not tell his mother about the offending because of threats made against him by the accused. This explanation as to why LB had not made a complaint at an earlier time demonstrated a degree of consistency of conduct that may be expected of a child aged 7 who has been repeatedly sexually abused, choked, and threatened by the accused.

55. Mr Wilkinson said he had previously had interactions with LB prior to LB’s disclosure. LB said that he contacted Mr Wilkinson specifically because he knew his name. LB’s conduct in making the complaint to Mr Wilkinson in particular, rather than any other person or any other police officer, in the circumstances where LB was aware that Mr Wilkinson had been involved in investigating the very person who LB was going to report, demonstrated a degree of consistency of conduct with that of somebody who was offended against and in the manner described. This was so, in the prosecutor’s submission, particularly given LB’s evidence about having a difficult childhood, taking drugs for many years, and generally not wanting to talk to the police.

56. As to Exhibit D6, the prosecutor argued that it did not conclusively provide any sort of alibi such that the offences could not have occurred in the manner alleged. The document that was tendered suggested that the accused may have been in Melbourne from about November 1986. Further in the bundle of documents, there are sentencing remarks which are dated 17 December 1987, suggesting that the accused went into custody at some stage. In the accused's record of interview, he said that he travelled between Melbourne and Adelaide around the mid-1980s. In the prosecutor’s submission, both LB and SS were unclear about when it was exactly that they lived with the accused. LB’s evidence was that he was about 7, and SS said that LB was 6 or 7. The evidence establishes that LB was at least a young child but does not pinpoint the timing of living at the house with the accused and the sexual abuse occurring in a particular year. The dates particularised in the information are 1 January 1985 and 31 December 1986, but the prosecution is not required to specifically prove that the offence occurred between this time period and dates in the particulars of a charge are not to be regarded as an element of the offence or even as a material matter unless it is an essential part of the defence which, the prosecutor submitted, is not the case here. The charge is still capable of being proved notwithstanding the evidence suggesting that the accused may have been in Melbourne from about November 1986.

57. The prosecutor submitted that as a matter of common sense and ordinary human experience, there was a ring of truth to how the sexual abuse in this case unfolded. That is that SS had two children, her relationship with her former partner had ended and she was living at her mother's house but was not getting along with her. SS went to look for a car where she met the accused. They then went out a few times and after what seems a relatively short period of time, the accused offered for SS to come and live with him. During this time, the accused allowed SS to use a car from the car yard for free and she did not have to pay rent. The accused was also giving her money for groceries. SS considered herself to be in a boyfriend and girlfriend relationship with the accused at the time, but the relationship wasn't intimate, even though they shared a bed.

1. During the time that SS was living with the accused, her former partner was not helping with the children or showing any interest in them. LB gave evidence about an occasion when he was living at the accused’s house when LB’s father was meant to come on the weekend and pick him up but did not and it made him feel ‘shit house’. But it appeared that the accused was showing an interest in LB, taking him to school and to the car yard where he worked on multiple occasions during the time that they lived together. The reason for that, in the prosecutor’s submission, was not because he was interested in helping out SS, and there was no sexual relationship between her and the accused. Rather, he was doing this because he was regularly sexually abusing LB in the manner LB described.

   Defence counsel address

2. While the elements, regarding the ages of LB and the defendant were not in dispute, the defence denied there was a relationship between the accused and LB.

3. The accused’s case was that he dated LB’s mother a few times. That he knew the kids, but he had no relationship with them.

4. Defence counsel suggested that the nature of the relationship between SS and the accused was somewhat unclear. It was described in one sense as a boyfriend/girlfriend relationship, but it was not an intimate relationship.

5. Defence counsel identified that the main issue at trial really was whether the sexual activity did in fact occur.

6. The prosecution case relied entirely on LB’s evidence, and LB was contradicted by SS in one instance very significantly in relation to what was said to have happened at the house on the last occasion. SS made it very clear in her evidence that she had and has no reason to protect the accused.

7. Further, there was no objective or physical evidence in relation to this offending ever having occurred. There was no indicia or records of any injuries or medical treatment that might have been required for LB, despite his very young age at the time, his likely small physical size and the horrific nature of the acts described.

8. LB’s first report of the matter was to police some 25 years after the offending was said to have occurred and was initially denied by LB when he first spoke to police. LB said he was embarrassed in front of his friends at the house, but Mr Wilkinson said that LB was pulled aside and spoken to quietly and discretely. Certainly, it was open to LB to arrange to speak to the police later should he have been embarrassed at that time.

9. LB made his report to police knowing that police were investigating the accused as a sex offender. He made this after police had approached him and soon after seeing the accused in media reports, knowing that the accused was a sex offender against children. If a person was to be concocting a story for whatever reason it might be, obtaining compensation or otherwise, those were the ideal conditions for a false report to be made because he would have a receptive audience from police, and was likely to be believed.

10. LB has an unfortunate history of lying and deception, which includes lying to police and a substantial offending history. Defence counsel accepted that an offending history was somewhat a double-edged sword in a case like this in that it is unsurprising in cases where abuse happens that the victim of that abuse might end up having a troubled life. Here, in relation to the specific offences that have been committed by LB, which although to his credit, he did accept in cross-examination, those offences of lying and deception require caution in assessing LB’s evidence and placing reliance on LB’s uncorroborated evidence.

11. Similar concerns were raised in relation to LB’s heavy drug use between the time of the alleged offence and the giving of evidence.

12. LB could not be said to be a reliable witness. There were countless times when he couldn't remember crucial details of what had happened. They included such fundamental things such as what the accused looked like or anything about him. LB could not remember when the abuse started or how long it lasted, both in relation to the duration of the offending period or the duration of the acts themselves. In relation to offence on the last occasion in the bathroom, LB told police recently he was not even sure of whether it happened.

13. In relation to the evidence at the car yard, LB was unable to say how many times it happened. It was first described as being many times and then later in his evidence perhaps two or three times, such that there was a fundamental difficulty with accepting the reliability of his evidence in that regard.

14. LB’s evidence was replete with responses of ‘I can't remember’ or similar, and while it might be an understandable thing in some circumstances given the significant passage of time, that did not make his evidence more reliable.

15. The offences were not reported for a substantial period and LB’s memory of events, may be significantly compromised, which defence counsel submitted could not be assessed as deliberate or inadvertent, with both remaining a possibility. It could be a deliberate thing after having seen media reports of the accused on television and in the paper for sexually offending against children, knowing that he had provable history of contact with him as a child, that he saw the opportunity to claim being a victim for the purpose of obtaining compensation. Alternatively, it could be a more inadvertent or innocent explanation, that on his own account LB saw the accused as a scary looming figure in his memory, perhaps linked to a traumatic memory of him as a child with the accused trying to choke him with a tea towel and that memory, having been fed into by more recent reporting for sexually offending against children, has compromised his memory with events of such a long time ago.

16. LB was unable to establish the precise location of the house, and there was no proof of the accused ever having lived at the address that was first identified by LB, despite his confidence in that address being correct.

17. Exhibit D6 certainly suggested that in November of 1986, during the charge period, that the accused was living in Melbourne and from the document, it could be inferred that not only was the accused present in Melbourne at the time of the offence but was likely to have been there for some time and had established himself in Melbourne.

18. While that only covered a portion of the charge period, it was consistent with the accused’s assertion in the record of interview that he might have even been living in Melbourne at the time and for a reasonable component of the charge period, living with a partner.

19. Neither LB nor his mother could confirm the address where the house was, apart from a relatively vague reference to one of two suburbs, being Prospect or Nailsworth and a proximity to Main North Road. LB’s mud map Exhibit P1, said little if anything, about the layout of the premises and did not make any fact in issue here more or less likely in the circumstances. There was no description on that diagram and no evidence about the location of his bedroom and sleeping arrangements in the house. The police were unable to prove that the accused had ever lived at a particular address where this offending is said to have occurred, and the accused denied in his record of interview ever having lived at the address which was suggested by LB.

20. SS was able to collect all her possessions in one go at the time when she called the taxi and put the children in the taxi which was not indicative of a person who was living at an address.

21. In relation to the tea towel incident, LB quite clearly described sexual offending, but he more recently provided a statement to police where he accepted he was unclear on the details. He attributed this to a difficulty in telling the police officer. LB said emphatically on several occasions in his evidence that he woke up naked in the backyard without knowing how he got there. He said he was bundled into the cab naked, and he was clear and confident about that aspect of his evidence but was a very young child at that point in time. Contrary to that, his mother had a very clear recollection of that day. She was an adult and she said very clearly in her evidence that LB and his younger brother were playing in the backyard fully clothed, and that the accused had just arrived home. She denied that her children were naked.

22. In relation to the bathing of her children, SS said that she would keep a close eye on the kids in the bath for reasons of safety and the young age of the children. Although, she accepted that might mean moving in and out of the room, she asserted that she would be in there regularly coming in and out to check on their welfare, inconsistent with the accused attempting to offend as alleged.

23. It was also made clear by her that the accused was not involved in bathing the children and that she would never have allowed that to happen.

24. There is no evidence obviously from CL who was said to be present, perhaps because he was too young to have a recollection of the events at that time.

25. There is a consistency between LB and his mother in relation to the tea towel incident and that is that the accused appeared to have assaulted LB with a tea towel which led to her leaving the house with the children on that day. Defence counsel submitted that was an important issue when assessing LB’s evidence in that it was relevant to the view that he had developed of this man that he knew as Phillip Cave and how he came to view him considering the things that he learned about later.

26. In relation to the offences that occurred at the motel, it was never confirmed with any certainty, precisely which motel this was. He was never taken to the site to identify it. There are no records of the accused ever being there. It was said to be on Main North Road when it was in fact Ifould Street, which may be near Main North Road, but again lacked the precision that is necessary in these circumstances.

27. LB’s evidence was that he did not know how he got there, could not remember how he travelled there or if he stayed there for one night or more and he was unable to describe in any meaningful way the other man that was said to be involved.[268] LB gave a very simple description of the accused raping him, followed by another man raping him, followed by the accused repeatedly raping him all night, which in defence counsel’s submission, lacked specific detail and the nuance that might be expected. There was no injury or physical harm reported which would seem likely if a young boy of 6 or 7 years had to endure such a horrific and brutal event.

    [268] See paragraph 43. LB described the accused slamming the car into park, with LB hitting the windscreen.

28. There were no other witnesses to the offences that are alleged to have occurred at the car yard. The identification of the precise car yard that this was said to have occurred was not able to be confirmed objectively and relied entirely on identification by LB. There were no business records or anything else that could confirm that the accused ever had involvement with that particular yard. The evidence about the timing of the offending at the car yard was contradicted by SS. LB said it would happen at night and that he was told to keep the lights off. SS said it did not happen at night, and that she would not have allowed that, and he only ever visited during the day.

29. The accused said that other people would have been at the car yard during the day, other people worked there, and he thought that it was no place to take a child in any event. This would clearly be very high risk offending in the circumstances described.

30. Given the significant passage of time it was difficult for the accused to confirm his movements at the time, to obtain any documents which would have established his whereabouts, or his living and working circumstances more generally. The records from the motel, the records from his car yard about when he might have attended there and when he was working, house rental records showing where he was living, and that sort of material may have assisted with the accused’s defence. He could not call an ex-partner who was referred to in the record of interview because they had lost contact or others who stayed at the house and may have observed interactions between LB and the accused or between the accused and SS, or people who worked at the car yard. These issues made it more difficult to cross-examine LB on matters of detail.

31. Finally, defence counsel submitted that there was reasonable doubt regarding the possibility of either a mistake or a fabrication in relation to these allegations and on that basis, it was open to find the accused not guilty.

    Discussion

32. LB gave evidence with candour and in a direct and wholly believable manner, giving a compelling account of the events he recalled. He impressed me as a man who was recounting abuse he had experienced. LB readily agreed that he had been convicted for offences of dishonesty and had been a drug user. He showed no hesitation in responding to questions about the circumstances of his life in the past. His evidence regarding the abuse occurring at least several times, that he had in the past tried to put the events out of his mind, his significant drug addiction and offending history, made perfect sense in the circumstances of the abuse he alleged.

33. LB’s explanation as to why it was that he had previously denied the accused had offended against him, the delay in reporting the offending, and his decision to finally come forward after his attention was again drawn to the accused, was in my view genuine.  It was plain to me that LB was uncomfortable in speaking about the accused and about what had occurred when he was a child. He appeared to have taken on a burden of feeling ashamed. Given his current level of discomfort and what to me was his obvious embarrassment, it was not surprising that he did not wish to disclose the offending to Mr Wilkinson in his driveway with others present, even if they were not in earshot and Mr Wilkinson had showed some discretion.  That he decided to go back to Mr Wilkinson after being told by a counsellor while he was on the Drug Court program that he needed to confront the abuse, was entirely plausible, as was his desire to ensure the safety of others from such abuse. Even were it the case that he decided to come forward after having heard about the accused’s conviction for sexual abuse, that in and of itself, is not determinative of LB having made a false report or demonstrating any motive on LB’s part. LB denied that he had made a false report to seek compensation and a claim for compensation is not necessarily inconsistent with the truthfulness of a complaint and in any event is a right afforded to a victim of crime.

34. I here remind myself that it is for the prosecution to prove the accused’s guilt and to satisfy me that LB’s evidence was credible and reliable. It was not for the defence to show that LB is wrong or is lying and merely because I have rejected any motive on LB’s part, it does not strengthen the prosecution’s case. I have not treated LB’s evidence as more credible just because I have rejected one possible reason for LB to be lying and I have not concluded that because LB has no reason to lie, he was therefore telling the truth.

35. I am satisfied that the complaint LB made to Mr Wilkinson was the initial complaint, and evidence of the complaint demonstrated a significant degree of consistency of conduct in that what Mr Wilkinson said about LB’s complaint accorded with LB’s evidence. LB told Mr Wilkinson that he had been sexually abused by the accused when he was about 6 or 7 and that the abuse occurred at Port Road, Albert Park, at a motel in Elizabeth, and at the house where he lived with the accused.  LB’s decision to complain to Mr Wilkinson and the timing of that complaint was easy to accept given the history between them, the difficulties that LB had with police previously, and his difficulties in confronting his history whether through drug use or embarrassment. I remind myself here that the complaint to Mr Wilkinson has not been admitted as evidence of the truth of LB’s allegations and that there may be many reasons why an alleged victim of sexual abuse makes a complaint at a particular time and to a particular person. 

36. To his credit, LB made clear that he had spoken to Mr Wilkinson after he had seen the accused in the media, something which I have found would be natural for LB to do given Mr Wilkinson had previously spoken with LB when he was conducting investigations into the accused being involved in sexual offending against children. LB was acquainted with Mr Wilkinson and understood he knew something of the accused. It is not surprising that someone who was embarrassed and stressed about speaking about such matters, especially to police, given his offending history and drug use, to have sought out someone with whom he had a connection and who was at least aware of the accused.

37. Defence counsel’s criticisms of LB’s evidence gave focus to the times when LB could not remember crucial details of what had happened and included fundamental issues such as being unable to describe what the accused looked like or anything about him. Neither LB nor SS could recall the precise location of the house and LB was unable to identify the house. Although it did appear that the police investigation was somewhat superficial as regards the location of the house, the car yard or where LB had been enrolled in school, I do not speculate as to what, if anything, further enquiries by police might have revealed. I note that nonetheless, the general location of the house LB described accorded with the accused’s description and the location of the car yard was in keeping with what the accused had told police.

38. LB was unable to remember when the abuse started, how long it lasted, the duration of the offending period, or the duration of the acts themselves. LB had given differing accounts of how many times the abuse had occurred. While I accept that there is a significant forensic disadvantage to the accused in the absence of any medical or forensic evidence of injury to LB from the alleged abuse, LB did not recall any such injury and there is no expert evidence before me on that topic and I do not speculate. I regard the lack of any injury as neutral in the circumstances here. It would in my view be difficult for a 7-year-old child to have a precise understanding of the mechanics of the acts to which he was subjected. It is of some relevance that LB thought that the accused had ejaculated on his back. As to the allegation that the accused repeatedly raped him on the one occasion, that may well have been LB’s impression at the time.

39. In relation to the incident in the bathroom, LB told police recently he was not even sure of whether it had happened. He explained having been embarrassed about telling the police officer at the time. Defence counsel emphasised LB’s resort to responses of 'I can't remember'. While defence counsel conceded it might be understandable in some circumstances given the significant passage of time, that did not make LB’s evidence more reliable. In my assessment, it was to LB’s credit that he did not seek to embellish or give a more fulsome account when pressed for more details and was not prepared to give an answer when he was unable to remember. His express reluctance to fill in gaps did not in my assessment arise from any attempt on his part to avoid giving an answer that might expose him as a liar. At times he displayed a level of frustration in exposing the limit of his recollections, however his lack of memory about some details was in my view very genuine and must be seen in the context of someone recollecting events that took place when he was a young child and a significant time ago. He appeared to me to be a relatively unsophisticated man, who had struggled to confront the abuse to which he had been subjected and that struggle had continued. Certainly, there were inconsistencies between his evidence in court and what he had said previously to police. Those inconsistencies, and his more recent statement that he did not know whether the bathroom incident had occurred, together with his evidence about that, was to me, reflective of LB’s concern that he was accurately recalling the events. Plainly he had difficulty in precisely remembering whether he did in fact do the act that the accused had demanded and the circumstances surrounding the event. That he did not have a fixed position of what the accused was wearing at the time, whether he called out to his mother, whether he was threatened at the time and for how long the event occurred has not caused me to doubt the evidence LB gave as to the accused having acted in the bathroom as LB alleged. LB’s recollection of the incident in the bathroom was compelling. In his evidence he described being prompted on that occasion to protest because usually the accused would have anal sexual intercourse with him, and this had been a change in that he was required to put the accused’s penis in his mouth. He said he recalled not wanting to do what the accused asked because of the smell of the accused’s penis.

1. The relationship between SS and LB did not appear particularly close either currently or in the past. Plainly LB did not feel supported by his mother, even as a child. At times in her evidence, SS appeared to be concerned to portray herself in a good light in regard to her parenting and the level of attention she had paid with respect to her supervision of the interactions between LB and the accused. As would be expected with recollecting matters that occurred so long ago, SS could not recall the house where she lived with the accused or precise details of some events, however I did not find her to be deliberately evasive or as having any agenda either against the accused or in support of LB. I reject any suggestion that there had been collusion between SS and LB, and the inconsistencies in their evidence belied any such finding. That LB had more recently recalled leaving the house in a taxi has not caused me to doubt LB’s evidence.

2. SS’s evidence as to how it was that the accused came into her life was given in a straightforward and convincing manner and I have accepted her evidence as to how the accused invited her to live in his house with her children, was providing for them and that they had shared a bed and were not intimate, as both credible and reliable. I am satisfied that SS and her children lived with the accused for a period of some months at a time when LB was around the age of 7 years. I have also accepted her evidence that the accused had taken an active role in the care of LB in that he was taking LB to and from school on occasion and was taking him with him to his work at the car yard. Accordingly, I am satisfied that during the relevant time, the accused had a relationship with LB in the sense required in the third element of the offence with which he has been charged. There was opportunity for the offending to have occurred as LB had described.

3. SS’s evidence regarding the end of her contact with the accused was straightforward and credible. She recalled an occasion when the accused had used a tea towel to strangle LB on the back lawn. No doubt the drama associated with what she observed would give cause to having a recollection of such an event, particularly in view of it having apparently been the catalyst for the end of her relationship with the accused. I reject defence counsel’s criticism of SS’s evidence that she had fled immediately and apparently without having collected whatever possessions she and her children had, as naïve to the circumstances which may surround a decision to leave a domestically violent situation.

4. SS’s description of the backyard event does not accord with LB’s recollection in relation to the sequence of the event coming after the bathroom incident and where LB said he was naked. The circumstances may be accounted for by SS’s difficulty in recollection or most likely, the bathroom incident and the event on the back lawn being two separate occasions which have been recalled by LB as a continuum, no doubt because of his age at the relevant time, the time that has since elapsed and the traumatic nature of both events.  In the mind of a young child, the trauma would readily be recalled as having occurred on the one occasion. I have nevertheless considered whether LB’s unreliability in joining the two events in his mind, the lack of detail in recalling particulars, the differences between his account and that of SS, and the inconsistencies between LB’s evidence and what he had told police, have caused me to doubt the evidence he gave of the critical aspects of the alleged offending, or to depart from my favourable assessment of his evidence more generally.

5. Defence counsel submitted that LB’s highly adverse view of the accused has been distorted by his memory of the tea towel incident and made it more likely that LB remembered things unreliably or has looked to benefit himself at the expense of the accused. Had LB’s level of hatred against the accused extended to that degree simply because of that incident, I find that it would have been more likely for LB to have complained at a much earlier opportunity when spoken to by Mr Wilkinson. As I have said, I found LB to be an honest witness who understandably struggled with recollecting details given his age and the time that has since passed. I am satisfied that LB has given a credible and reliable account of the accused having been in the bathroom with him requiring LB to suck his penis and having been strangled by the accused with a tea towel on the back lawn at some other time thereafter. I have not reasoned that these uncharged acts can be used to reason the accused is the type of person who would commit the charged offence or was more likely to have done so.

6. The accused spoke to police and was under no obligation to do so. His answers were not sworn evidence tested by cross-examination. I remind myself that by participating in the interview, the accused took on no onus of proof. The ultimate issue is not whether the accused’s evidence is to be accepted or preferred to the prosecution witnesses’ evidence, but rather whether notwithstanding the accused’s evidence, the prosecution has proved its case beyond reasonable doubt.

7. While the information provided in Exhibit D6 raises the issue of when it was that the accused was living in Adelaide and is a topic about which I accept there is a significant forensic disadvantage to the accused, the information does not establish any basis upon which it could be said the offending could not have occurred as LB alleged. Even accepting as I have, that there were periods of time in 1986 when the accused was living and working in Melbourne, the charged offending spans a time between 1 January 1985 and December 1986 and the accused said in his police interview that he was moving between Adelaide and Melbourne during the relevant times.

8. The accused acknowledged he knew SS and recalled certain matters about her which were accurate. He denied the allegations that were put to him in the interview. That he did not remember the nature or extent of his relationship with SS, or her children was not surprising given the length of time that had passed, and that it was a relationship of only months about which the accused may have cared little. While I have rejected the accused’s denials, it is not for him to prove anything, and I must look at all the evidence and decide whether I am satisfied beyond reasonable doubt that LB has been truthful and accurate.

9. I have found relevant to my assessment of the evidence, LB’s recollection that the accused had used the ruse of travelling to Melbourne to purchase a vehicle, whereas he was taken to a hotel in Elizabeth. This I observe, was consistent with what the accused said in his interview regarding his travel around that time, between Melbourne and Adelaide.

10. The forensic disadvantage to the accused is, as I have said, obvious and very significant. I have kept that disadvantage to the forefront in scrutinising the prosecution evidence and in particular the evidence of LB. Having carefully scrutinised LB’s evidence, the evidence of the other prosecution witnesses and the accused’s denials, I am satisfied that LB was a truthful and reliable witness. I am satisfied that the accused acted as LB has alleged and that the events took place as LB has described to me. I reject that there is a reasonable possibility that the accused did not commit the charged offence.

11. Pursuant to section 50(12) of the Act, the definition of a sexual offence is as follows:

    Sexual offence means –

    (a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or

    (b)     an attempt to commit, or assault with intent to commit, any of those offences; or

    (c)      a substantially similar offence against a previous enactment

12. On each occasion the sexual act committed by the accused amounted to an offence contrary to s 49(1) of the Act during the relevant period. I am satisfied beyond reasonable doubt that the accused committed acts of unlawful sexual intercourse on more than one occasion against LB between 1 January 2005 and 31 December 1986. I am satisfied beyond reasonable doubt that the accused procured LB to engage in anal intercourse with another person contrary to the current s 63B of the Act.[269] I find the accused guilty of the offence of the sexual abuse of a child.

    [269] Formerly s 58A(1) of the Act.