R v Cave
[2018] SADC 19
•9 March 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CAVE
Criminal Trial by Judge Alone
[2018] SADC 19
Reasons for the Verdict of Her Honour Judge Davison
9 March 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused is charged with one count of persistent sexual exploitation of a child. The accused befriended the complainant's mother through a dating column. She then moved her family to Adelaide from regional Victoria. The accused spent a significant amount of time with the 12-year-old complainant and began to sexually abuse him. This abuse continued for a number of months in various locations. The prosecution has proved the charge beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) s 49, s 50(1), s 56, s 58; Evidence Act 1929 (SA) s 13C; R v Hamra (2016) SASR 374; Palmer v R (1998) 193 CLR 1; R v Hamra (No 2) [2016] SADC 8; Hamra v The Queen [2017] HCA 38; Doney v The Queen (1990) 171 CLR 207, referred to.
R v CAVE
[2018] SADC 19
The accused is charged with one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (hereafter “the Act”). The complainant is now a man, who was about 12 years of age at the time of the alleged offence. The accused befriended the complainant’s mother through a classified advertisement arranging dates and relationships. The complainant and his family then moved from Swan Hill in Victoria to Adelaide. The allegations are that the accused first began to touch the complainant on his inner thigh and then progressed to touching him in a more overtly sexual way which included fellatio and anal intercourse, over a period of about three months.
The accused elected for trial by Judge alone.[1] The trial proceeded without a jury. At the conclusion of the trial counsel for the accused submitted that I should await the decision of the Court of Criminal Appeal in relation to the matter of Hamra.[2]That decision was delivered on 8 December 2016. An application for special leave was filed in the High Court shortly thereafter and I was then asked to await the decision of the High Court. On 13 September 2017 the High Court dismissed the appeal.
[1] Juries Act 1927 (SA) s 7(1)(a).
[2] (2016) 126 SASR 374.
The Charge
The accused is charged with the following offence:
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Philip Cave at Edwardstown and other places, over a period of not less than three days between the 1st day of December 2005 and the 30th day of April 2006, committed more than one act of sexual exploitation of PN, a person under the age of 17 years, by:
a) Rubbing PN’s leg on more than one occasion.
b) Rubbing PN’s groin on more than one occasion.
c) Touching PN’s penis with his hand on more than one occasion.
d) Performing fellatio upon PN on more than one occasion.
e) Causing PN to touch his penis with his hand on more than one occasion.
f) Attempting to cause PN to perform fellatio on him.
g) Causing PN to insert his penis into his anus on more than one occasion.
h) Masturbating his penis in the presence of PN on more than one occasion.
In order to prove this offence, the prosecution must prove beyond reasonable doubt the following elements:
1At the time of the alleged offending, the accused was an adult. This element is not in dispute. The accused was in his 50s at the time of the alleged offending.
2The accused committed more than one act of sexual exploitation against the complainant. An act of sexual exploitation must be a sexual offence. In this case, there are a wide range of alleged sexual behaviours. These include acts that could amount to the offences of unlawful sexual intercourse[3], gross indecency[4] and indecent assault.[5] I will come to these individually later in these reasons.
3The two or more acts must be among the acts particularised in the Information.
4The accused committed more than one act of sexual exploitation over a period of at least three days. This means that the time between the first and the last proven act must be three or more days.
5The complainant was under the age of 17 years. This element is not in dispute. At the time of the allegations, the complainant was 12 years old.
[3] Criminal Law Consolidation Act (SA) s 49.
[4] Criminal Law Consolidation Act (SA) s 58.
[5] Criminal Law Consolidation Act (SA) s 56.
The prosecution made applications for a closed court whilst the complainant gave his evidence, and for the evidence to be recorded pursuant to s 13C of the Evidence Act 1929. These applications were not opposed by the defence. I granted both applications.
General Directions
I give myself the following directions.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused is presumed innocent of the charge unless and until guilt has been proved beyond reasonable doubt. The accused does not have to prove that he did not commit the offence charged.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the words “proved,” “established,” or “satisfied,” in each case I mean to an extent which excludes a reasonable doubt.
If I am satisfied that there is an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find that charge has not been proven beyond reasonable doubt and accordingly, the accused is not guilty.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of a witness’s evidence.
The accused did not give evidence. That was his right. I cannot and do not draw any adverse inference against him or the case he presents for declining to give evidence.
I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy or prejudice and not be influenced by public opinion in relation to this matter.
The court was closed during the evidence of the complainant. I remind myself that no adverse inference can be drawn against the accused nor should these special arrangements influence the weight that I give to the evidence of the complainant.
Forensic Disadvantage
There has been a period of about eleven years between the alleged offending and the trial. This delay has resulted in a significant forensic disadvantage to the accused. There have been difficulties for him challenging and responding to the allegations. These difficulties include the ability to test the evidence in a meaningful way at a time when he, the complainant and possibly others had a memory in relation to the events surrounding the alleged offence and the circumstances generally. If the matter been reported earlier there may have been evidence of a forensic nature that could have been obtained that may have assisted the accused in responding to the allegations.
I have taken into account the forensic disadvantage to the accused when scrutinising the evidence for the prosecution.
Motive of the Complainant to Lie
In this case the defence have suggested to the complainant that he has a motive to lie or make false allegations. This is a relevant factor in relation to the complainant’s credit. If there is a reasonable possibility that the complainant has fabricated the allegations in order to gain a benefit for himself or to cause a detriment to the accused or for any other reason clearly the accused must be acquitted.
However, even if I reject the suggested motive, in this case, a claim for financial compensation, that does not strengthen the prosecution case. There is no requirement on the accused to prove or even suggest a motive for the complainant to lie. The absence of motive is entirely neutral.[6]
[6] Palmer v R (1998) 193 CLR 1.
The Course of the Trial
Mr Allen delivered the prosecution opening. He outlined the charges, the witnesses to be called, and particularised each of the acts as they appear on the Information. He gave a summary of the evidence that he expected the complainant to give.
Mr Culshaw, for the accused, then outlined the issues in contention. He said that there was no dispute that the accused knew the complainant and that he attended at the three places where it was alleged these offences had occurred, but denied the acts of sexual exploitation that were alleged.
The Prosecution Case
Complainant’s Evidence
The complainant was born in March 1993. He had four older sisters, three younger sisters and a younger brother. One of his younger sisters is now deceased.[7] He initially lived in Murray Bridge and then moved to Swan Hill in Victoria when he was about 10. He first met the accused when the accused came to his home in Swan Hill after the complainant’s mother placed a dating advertisement in a newspaper. The accused helped the family to move to Adelaide, as the complainant’s mother did not have a licence or a car at the time. The accused had a white Toyota van in which the family, with their belongings, travelled to Adelaide. Initially they lived in a shop in Marion that comprised two large rooms. There was no furniture in the premises. There was a toilet, but no bathroom facilities. The complainant, his siblings and his mother slept on mattresses on the floor. He did not see the accused sleep at the shop. The complainant gave evidence that as he and the accused shared the same christian name, the accused was called “big P…” and the complainant was called “little P….”.
[7] T3.
On New Year’s Eve 2005, the complainant went with his mother, some of his siblings and the accused to Glenelg. At other times, the complainant and the accused went to other places together including a warehouse in Edwardstown and a car yard on South Road. They were alone together on a number of occasions.
After living in Marion for a short time, the family moved from the shop to a house in Edwardstown. The complainant was then enrolled at a primary school, and commenced attending that school about a week into the first school term of year.
The complainant described the warehouse where he went with the accused to shower and also to paint the interior. The complainant said that the first time the accused touched him was while they were driving to the warehouse. The complainant was in the passenger seat of the van and the accused was driving. The accused touched him on the inside of his right thigh, and gently rubbed his leg for about 5 to 10 seconds. Neither the accused nor the complainant said anything at that time.
On that day, the accused was teaching the complainant how to use the paint roller and other painting equipment. There was a radio on, broadcasting a cricket game between Australia and South Africa. They left the warehouse and went to purchase lunch. When they returned, the accused allowed the complainant to play in some cars that were housed in the warehouse. These cars included a Ferrari and two Porsches. Whilst the complainant was seated in the driver’s seat of one of the cars, the accused touched him again on the inside of his leg.
The following day, they returned to the warehouse. They arrived early in the morning and stayed for the day. They had been in the warehouse for about 5 minutes when the accused started to touch the complainant. They both went into an office inside the warehouse where there was a computer. The accused turned the computer on and accessed some pornographic material from the internet. There was one chair in the office and the complainant was sitting on it. The accused then began touching the complainant on his upper inner thigh, and moved closer to his groin area.
The complainant went on to say that the first time the accused touched him on the genitals was when they were in the warehouse in a dark area. They were both standing at that time. The complainant was wearing track pants. The complainant said that he always wore the same track pants because he did not have many clothes. The accused touched the complainant with a gentle rubbing movement for about 20 seconds. The accused said to him “do you like that?” and the complainant replied “yes”. The accused kept touching him. On the same day, the accused put his hands down the complainant’s pants while they were in the office of the warehouse. The accused was stroking and touching the complainant’s penis. The complainant got an erection.
The complainant gave evidence that the first time the accused sucked his penis occurred on that same day. The accused started by touching the complainant’s groin and then pulled his pants down. Nothing was said when this happened. The complainant was standing and the accused was on his knees. He sucked the complainant’s penis for about five minutes. The complainant was unsure whether he ejaculated. He said, however, that there was an occasion when the accused had been performing oral sex upon him and the complainant ejaculated. On that occasion, the accused commented that the complainant had “mature spoof”[8] and said something about him becoming a father because his sperm was so mature. Thereafter, the accused touched the complainant on the genitals at the warehouse on many occasions.
[8] T46.
The complainant gave evidence that the day after the first act of fellatio occurred, they returned to the warehouse and the same thing happened. He said the acts of touching and fellatio took place over about four or five days and after that, acts of anal intercourse started to occur. The complainant said that the first time anal intercourse took place was in the morning, when they were in the office of the warehouse. The accused touched the complainant’s penis to give him an erection and then lay on his stomach on the floor. The accused told the complainant to spit on to his hands and lubricate his penis and he then pulled the complainant, with his hands, towards him. The accused used his own hand to put the complainant’s penis into his anus and then moved the complainant backwards and forwards, telling the complainant to thrust into him. The intercourse finished when the complainant ejaculated. No words were exchanged, but the accused was making moaning noises.
The complainant said that sometimes the accused would suck his penis before intercourse, and sometimes the accused would masturbate him before intercourse. He said that on the first occasion they had anal intercourse, they remained at the warehouse for the day and had anal intercourse again later that day. They went back to the warehouse the following day, and on that day and every day thereafter the same things occurred at the warehouse and the car yard.
The complainant gave evidence that anal intercourse took place at the warehouse at least 30 to 40 times, and that there were times when there was more than one act of anal intercourse in a day. The complainant gave evidence that the accused performed fellatio on him a minimum of 20 times at the warehouse.[9] He said these acts took place “in the dark area[10],” in the office and in the shower, but he was uncertain how many times they had occurred in the shower. The complainant could also recall being taken for rides by the accused in a black Porsche kept at the warehouse on a couple of occasions.
[9] T54.
[10] T54.
The complainant gave evidence that there was one occasion when the accused was masturbating and he pulled the complainant’s head towards his penis. The complainant’s mouth touched the side of his penis but he refused to take the accused’s penis into his mouth. The accused said words to the effect of “I’ll have to finish myself off” in a frustrated tone.[11]
[11] T57.
The complainant went on to give evidence about a car yard that he went to with the accused on a number of occasions. In the car yard, there was an office containing a desk and chairs. He described the owner of the car yard as a stocky, dark-skinned man. The owner of the car yard left him and the accused at the car yard alone. The accused performed an act of fellatio upon the complainant in the empty room of the office complex and then, at the accused’s direction, the complainant had anal intercourse with him. The complainant gave evidence that the accused performed oral sex upon him on two or three occasions in that empty office, and that the accused had directed him to perform anal intercourse upon him at the car yard on one or two occasions. He said that oral intercourse always took place before anal intercourse when they were at the car yard, but sometimes there would be oral intercourse only. The complainant gave evidence that he would stand up whilst the accused performed oral intercourse on him. He said that whilst the accused would remove his clothing completely when sexual acts took place at the warehouse, he did not take off his clothing completely whilst they were at the car yard.
The complainant said that the anal intercourse at the car yard was different to that at the warehouse because rather than the accused using his hand to place the complainant’s penis in his anus, he would tell the complainant to “put it in there.”[12] The complainant recalled that the accused would always tell the complainant to spit on his fingers and stick them into his anus to lubricate it.
[12] T69.
The complainant then gave evidence about an incident that occurred when he and the accused went to a holiday house for the purpose of painting it. He described this holiday house as being two hours north of Adelaide. He said that he was not sure where it was, but it is not in dispute that this holiday house was at Port Vincent. The complainant said that when they left in the morning it was still dark. It was a hot day and although they had gone to do the painting, they did not do any painting because of the heat. The complainant gave evidence that the house was on the beach and that some parts of the house were built and some parts were not. He described a dug-out area under the house that he said was three metres deep and one and a half metres wide. The complainant said the accused performed fellatio upon him in that area for approximately five to ten minutes. He was unsure whether he had ejaculated on that occasion. The complainant gave evidence that he did not see anyone else while they were at the Port Vincent house that day.
The complainant’s family moved from the Edwardstown property to Fairview Park after his thirteenth birthday, but he was unsure exactly when. He said he only saw the accused once after they moved.
He described the accused as short and skinny. He said he did not see any visible tattoos on him. He said he did not know what being circumcised meant when he was 12 but now recognises what it is and said that the accused is circumcised.
The complainant was cross-examined. The cross-examination focused on the inconsistencies between the evidence given by the complainant and earlier statements made by him. He was asked about the incident at the beach house and cross-examined about the inconsistency where the complainant said that anal intercourse happened every day after it initially started, but had not given evidence about anal intercourse occurring on the day he went to the beach house with the accused. The complainant said that they would have had anal intercourse on the day, but not necessarily at the beach house. When it was suggested to him that anal intercourse did not happen at all on the day at the beach house, the complainant said that it was a possibility but he does not remember a day when it did not happen. Mr Culshaw then put to him that the accused had never engaged in anal intercourse with him. The accused responded that that was not true. In relation to the suggestion that the accused had never engaged in oral sex with him, the complainant said that that was a lie. In response to the suggestion that masturbation never happened, the complainant said, “it happened, he knows it.” In response to the suggestion that no leg rubbing in the van or anywhere else had occurred, the complainant said “sorry, but it did happen.”[13] The complainant was cross-examined about his statements that the sexual activity occurred every day, and he said that this had included school days and on the weekends.
[13] T88.
The complainant gave evidence that on one occasion whilst the accused and he were having anal sex in the office, two men had walked into the warehouse and the accused told him to keep quiet. In relation to that evidence it was put to him that he had never mentioned these two men in any statement provided to the police. The complainant agreed that in his statement to the police he said, “during the times that I went to the warehouse with Phil I never saw anyone else there.”[14] Defence counsel put to the complainant that there were tradesmen present at the warehouse from time to time, but the complainant said he only saw one of them walk into the big area through the windows of the office. The complainant disagreed that if tradesmen had looked through the window, they would have seen them in the office. He said that the tradesmen would not have known they were there, implying that the tradesmen would not have known to look. The complainant agreed that the only way for the tradesmen to get in was through the door that had a key to it, or for someone to have let them in. He said that he did not let them in, neither did the accused, so they must have had a key. He does not know why they were there. He said they did not stay for long.
[14] T97.
During cross-examination, it became clear that the complainant does not remember each individual occasion of sexual activity that took place as they were all very similar. However, he did say that some stand out in his mind more than others. He said that he was unable to get the timeline correct because the abuse was “all blurred.”[15] He said he was uncertain of the sequence of events on what had been described as the first day. He accepted that some of the statements he made to the police were different from the evidence that he had given in court, and explained this by saying that he may have the order of things messed up, but not the places where they took place. The complainant said that it was not a case that they did not happen at all and denied he was making it up. Under cross-examination, the complainant said that there were a lot of things he did not put into his statements and a lot of things he did not tell the police in statements. He said that these events had taken place many times, in many places and sometimes many times a day.
[15] T104.
The complainant agreed he told the police that the first time the accused performed oral sex on him he was lying down, however in evidence he had said he was standing up.
The complainant gave evidence that the first time he had ejaculated was when the accused was performing oral sex on him. He was unsure whether he had ever ejaculated before and unsure whether he had reached puberty by that stage. He confirmed that he did not have any pubic hair at that time. He said he had ejaculated many times in the office in the warehouse and that the accused swallowed his semen every time. It was put to him that he had said to the police that the accused would sometimes have him ejaculate on the carpet. The complainant said that he does not now recall ejaculating on the carpet.[16]
[16] T116. The reference in the police statement was not to carpet but to the floor.
The complainant was cross-examined about the incidents that had allegedly occurred in the shower at the warehouse. He confirmed that anal and oral intercourse, as well as masturbation occurred in that area. He said the accused would masturbate and that he would masturbate the accused. The complainant agreed that he did not mention anything about the shower in his first statement and in the second statement to the police, he did not say anything about the oral or anal intercourse occurring in the shower. In his third statement to the police, he said the accused would masturbate himself or have the complainant masturbate him, but did not mention oral or anal intercourse. The complainant said the reason for these omissions was because he did not remember those details at the time. He rejected the proposition that he was lying in court about what happened in the shower.
The complainant was cross-examined about an occasion when the accused attempted to force the complainant to fellate him. He said that this only occurred on one occasion, but that the accused had tried to make him perform fellatio a number of times on that occasion. He was referred to his statement where he had said that there was only one occasion where the accused tried to make him suck his penis. The complainant said that this inconsistency was due to an inaccuracy in wording of the statements and denied the suggestion that the accused never made him, or tried to make him, suck his penis.
The complainant was cross-examined about the events at the car yard. He said that he did not think people outside the car yard could see into the office through the window due to the blinds being drawn by the accused when they went in. He admitted that this is not contained in any of his statements. He admitted that when he spoke to the police, he only told them about oral sex taking place in the office at the car yard. He explained this by saying that more information has come back to him over time and it is not because he is exaggerating or lying.
The complainant was cross-examined about whether he had ever mentioned compensation to anyone. He said he was unsure whether he had discussed compensation. When a Facebook conversation with his sister was put to him, he admitted the conversation. He denied that he had made up these allegations to claim Victims of Crime Compensation. In re-examination, the complainant confirmed that he was spoken to by the police at his home in Fairview Park in 2006 after these events occurred and told the police that the accused had not been abusing him. The complainant said that he did not tell the police because he was scared and worried that his family would look at him differently. He was also concerned about his mother’s mental health if he revealed what had happened.
Complainant’s Mother’s Evidence
The prosecution called the complainant’s mother to give evidence. She said she had nine children and that one of her daughters died in 2002. She said that she and her children moved from Swan Hill, Victoria to Adelaide in November 2005 after she put an advertisement in a newspaper looking for a “family man.” The accused answered this advertisement and came to their home in Swan Hill. He then helped them move to Adelaide in his van. He moved them into an empty shop in Marion that consisted of a kitchen area with a table and chairs. It had an outside toilet but no bathing facilities. The witness was clearly unimpressed by this living arrangement.
She said the accused spent a lot of time at the shop but did not stay overnight. She said that the family went to the warehouse at Edwardstown to shower. She said there was never anyone else at the factory when they attended. Subsequently, they moved to Edwardstown. They came home one day and the locks had been changed. Following this, they went into emergency accommodation and thereafter moved to Yatala Vale. She confirmed that the complainant went to BPS at the start of 2006, and when they moved he went to FPPS.
She said when they lived at Marion the accused would drive his van to the address, pick up the complainant, and spend a lot of time out with him for the day. She said that the family sometimes went with them, but not all the time. She gave evidence that the accused and the complainant would go out for a good couple of hours together. She said that there was a time when the accused said he was going to paint a friend’s house and took the complainant with him. On that occasion they were gone all day. She said the family did not have a lot of money in 2006 and that they had relied on the accused to help them get accommodation. She said that the complainant did not have many clothes and that the accused always wore a red jumper and blue jeans.
She was cross-examined. She gave evidence that she had been to the warehouse and said there were about four expensive-looking cars there. She said that the accused went interstate for work on two separate occasions for about four to five days during the period that she knew him in Adelaide.
She said the accused came to their home every day, sometimes before she was awake, to collect the complainant. She said that on some occasions, the accused drove the complainant to school and that on other occasions, she caught the bus to school with the children. She said there were some days, especially whilst they were living at Edwardstown, when the accused did not see the complainant at all.
Complainant’s Sister’s Evidence
The complainant’s sister, PN, gave evidence. She is three years older than the complainant. She confirmed that the accused came to Swan Hill and then helped them move to Adelaide. She confirmed that the family had lived in an empty shop in Marion that consisted of two rooms and a toilet out the back. She said the accused was in and out of the residence at Marion. She said that she had been to the warehouse in Edwardstown and confirmed that the family had showered there, always accompanied by the accused. She said there were times when the accused would come and pick up the complainant from Marion. She said the accused and the complainant would come and go several times a day. She said her mother separated from the accused when the family moved from the house at Edwardstown and that they no longer saw the accused after that. In relation to attending school, she said that they commenced attending shortly after the school term in 2006 started. She went to high school and the complainant was at primary school. She is unsure of the location of the primary school. She has no recollection of the accused driving them to school. Her recollection is that they caught the bus. She does not recall the accused picking them up after school. In relation to the accused picking up the complainant and taking him away for the day, she said she was allowed to go with them a few times, but would often ask to go and was not allowed to. She was unsure why this was.
PN was cross-examined. She gave evidence that the cars at the warehouse were vintage cars and that she thought there were about five of them. She said that her younger brother WN was about 5 years old at the time the alleged offending took place against PN.
Peter Swaffer’s Evidence
Peter Swaffer gave evidence for the prosecution. He said that he has known the accused for 30 years and employed him in the past. Mr Swaffer had a business that commenced in 1995 and then moved into the new premises, trading at the warehouse in Edwardstown. Before his business commenced trading in the building, the building needed to be fitted. This included laying carpets and painting. He employed the accused for clean-up duties and painting the walls. Mr Swaffer said he also knew a person by the name of Peter Buttigeg who ran a small car yard on South Road. He described Mr Buttigeg as being about 5’6” with dark hair and skin.
Mr Swaffer gave evidence that the warehouse was not fully painted by mid-2006, but that the business had commenced operating there at that time. He said he stored his cars there - two Porsches, a Ferrari, a Bentley and two Mercedes convertibles. He said the blue-black or liquorice coloured Porsche was a better one than the red Porsche. He said that there were six offices in the warehouse, which had been partially set up by early 2006. He was unsure whether there were any computers in the offices at that time. He said there would have been tradesmen in and out of the warehouse in 2006 as they were building the area to do powder coating. Mr Swaffer had arranged for the accused to have a key and access to the alarm system in order to enter the premises to paint. He said the painting was slow in progressing because it was such a big job.
Mr Swaffer said that he had a beach house at Port Vincent that he had commenced building in mid-2005. He said Rivergum Homes built the house but Mr Swaffer undertook the rendering. He then contracted the accused to paint the rendering. He said he saw the accused there. There were times when the accused stayed overnight. He said the accused had brought a boy with him to one of the painting sessions in Port Vincent. He said that this boy came on a few occasions. He described the boy as looking thin, aged between 9 and 11 and had buck teeth. Mr Swaffer came to know the complainant by his name. Mr Swaffer said there was a particular day when the painting was called off because it was too hot. On that day, the complainant was there. Mr Swaffer had arrived at Port Vincent with his parents between 7.30am and 8.00am and the accused and the complainant arrived shortly thereafter. The accused and the complainant were still at the premises when he left. During the course of the day, Mr Swaffer had left the house for a couple of hours at a time. Mr Swaffer said the ground had been dug out underneath the house when Rivergum built the house in order to put the air-conditioning units and water tanks under the building.
Mr Swaffer was cross-examined. He gave evidence that the accused lived at Clovelly Park at the relevant time but was unsure who he lived with. He confirmed that there was a meeting room that was built in the warehouse, and that there was also what was described as a ‘smoko’ or lunch room constructed at the front of the building. There were showering facilities and a staircase to a mezzanine level that was constructed above the shower facility. He said that dark blue carpets were laid. He said there was a reasonably constant flow of tradesmen coming in and out of the property between mid-2005 and mid-2006, and these people would gain access through two roller doors that were on the side or the back of the factory. He said the accused had access to the keys of his cars and he also engaged the accused to go to other states and pick up new cars for him. He said the accused went to Queensland in around March of 2006 to pick up the dark-coloured Porsche, and that he also went to Sydney to pick up a car carrier for him although Mr Swaffer was unsure exactly when this was. Mr Swaffer said that when his business moved into the warehouse, he did not notice any stains on the carpet in the office consistent with semen stains.
In relation to Port Vincent, Mr Swaffer said he was unsure whether he had travelled there with his own parents on that day. His parents were at the house when he left, although they would have been at the old beach house at the bottom of the block. He said he had not seen the accused engaged in any sexual activities with the complainant on that day. He said it would not have been obvious to someone looking from outside the home at the bottom that there had been land dug out from under the house. He said inside the dug out portion, there was a considerable drop. He went on to say that the dugout is the width and length of the house; twenty metres by twenty-five metres.
The investigating officer gave evidence as to the dates he had taken statements from the complainant and the date he took the photographs that were tendered in evidence.
The prosecutor tendered the birth certificate of the complainant and a series of agreed facts including an agreed fact that the accused’s penis is uncircumcised. That concluded the case for the prosecution.
The Defence Case
The defendant did not give or present any evidence.
Addresses
Counsel Addresses
Mr Allen addressed on behalf of the prosecution. He said that the case for the prosecution relies principally on the evidence of the complainant who is still a young man, being 23 years old. He is, of course, allegedly recounting events that occurred about ten years ago. He submitted that the complainant’s evidence was compelling. He said the demeanour of the complainant in the witness box was of a person who could be described as shy and appeared to be embarrassed about certain aspects of his evidence and when embarrassed, had a slight laugh. Whilst this could appear inappropriate, it was simply a mannerism that he had in order to deal with his discomfort. Mr Allen submitted that his demeanour was such that his evidence appeared to be genuine, did not appear to be rehearsed, and was convincing. He reminded me of certain phrases that the complainant had used which he said displayed that the complainant was genuinely describing matters as best he could using his own language and terminology. He went on to say that when the complainant was unsure of certain aspects, he conceded this and did not simply guess at answers. Mr Allen submitted that the complainant was not prone to exaggeration, to the contrary, he tended to downplay certain activities. Further, he had tried to give detail as best he could as to numerous sexual offences occurring in a number of different places over a relatively lengthy period of time. In relation to the activities that he could recall, he gave significant detail.
Mr Allen submitted that when the evidence of the complainant is considered with the other evidence, the chronology and the circumstances in which he found himself it leads to the unassailable conclusion that the accused had befriended the mother of the complainant who advertised for a ‘family man’, giving him the opportunity to be alone on a number of occasions with the complainant. This in turn led to the opportunity for the accused to engage in grooming the complainant to the extent that they were able to be alone and the sexual acts could commence. At that stage, it was understandable that the complainant, who was probably about 12, was happy to spend time with the accused who was an adult male going to do different work, seeing expensive cars in warehouses and being permitted to touch and sit in them. Mr Allen submitted that the evidence of the complainant discloses that the accused commenced by touching him in a relatively innocuous way in the van, as if to test the waters, and then progressing to touching him not just on the thigh but on the groin. This then led to acts of masturbation, fellatio and, to use the complainant’s words, it became “[a] more extreme progression to anal intercourse”.[17]
[17] T196.
Mr Allen submitted that the accused took advantage of a vulnerable young man and committed sexual acts against him. He was in a position where he had the opportunity to be alone with the complainant, and he gained more confidence as time progressed that he would not be detected committing sexual offences.
In assessing the complainant’s reliability, Mr Allen reminded me that the alleged events occurred many years ago and although there were inconsistencies, these are explicable given the events that the complainant was describing. He submitted that the complainant was describing many different sexual acts that would be very difficult to recall with any precision in respect of the acts themselves or the circumstances in which they occurred. He submitted that this problem is compounded by a number of reasons. The first is that the acts occurred at different locations, being in the van, at the warehouse, at the car yard and at Port Vincent. Secondly, the complainant was describing multiple acts that occurred on any single occasion, and that of itself makes it difficult to be able to recall the exact events.
Mr Allen submitted that there is support for the complainant’s version of events in respect to the description of the warehouse, the cars in the warehouse, the attendance in Port Vincent, and the description of the holiday home. He submitted that Mr Swaffer’s evidence was supportive in this regard.
In relation to the specific allegations, he submitted that whilst in cross-examination, the complainant had basically abandoned the notion that he knew when various events had occurred for the first or second time. This was understandable, he said, given the complainant’s description of the number of times that events occurred and the way in which they happened. Nevertheless, he submitted that there was sufficient detail in relation to the allegations that had been made to enable me to be satisfied that two or more acts as alleged on the Information had occurred over a period of not less than three days.
Mr Allen addressed the issue of the circumcision of the accused. The complainant gave evidence that whilst he had not known in 2006, about the time when the offences were alleged, what circumcised meant, he now understood it and he believed the accused was circumcised. There is an agreed fact before me to the effect that the accused is uncircumcised. Mr Allen submitted that this may be an honest mistake made by the complainant in relation to this issue and is not determinant of the reliability and credibility of his account.
Finally, he addressed on the prior inconsistent statement that was made by the complainant at the time he was first spoken to by the police about ten years ago when the police asked him whether he had been the subject of abuse by the accused and he denied it. Mr Allen said that the explanation given by the complainant was, in the circumstances, the complete answer to that issue. At that time, the complainant was about 13 years old, and he thought he would be disowned by his family if he told the truth, and it is entirely understandable that he adopted the course that he did when taking into account the family complainant’s circumstances.
Mr Allen concluded by saying that I should consider the complainant a credible and reliable witness who had given a complete account of the relationship between himself and the accused and that each of the elements of the offence had been established beyond reasonable doubt.
Mr Culshaw addressed on behalf of the accused. He initially dealt with the essential elements of the offence and then turned to the reliability and credibility of the complainant. He said that whilst it was true that the complainant came across as a very sympathetic witness and his demeanour appeared appropriate, this had to be put in a context that the complainant had a very difficult childhood and when he did come into contact with the accused, he was a particularly vulnerable person. He said, however, that this does not mean that his evidence can provide proof beyond reasonable doubt as to the elements of the offence. He said that there are such inconsistencies and inherent implausibilities in the complainant’s account, in addition to it being internally inconsistent, that it is simply not possible to rely on it to the extent that is required to make findings beyond reasonable doubt. He went on to submit that in almost every respect, his evidence was inconsistent with what he had previously said to the police and there was, as Mr Culshaw described, ‘inconsistency piled on inconsistency’.[18] Further, he submitted that the evidence was largely uncorroborated and that any support for the evidence came from his sister and his mother. He submitted that although the complainant and the accused left the house together and spent time together this in no way corroborates the sexual activity that was said to be occurring.
[18] T213.
Mr Culshaw submitted that the aspect of the evidence in relation to the circumcision status of the accused could not be overlooked. The complainant was emphatic that the accused was circumcised, and he is wrong about that. In addition to this, the evidence of the complainant that the sexual abuse occurred every day during the period that it did occur is contrary to the evidence given by Mr Swaffer that the accused took two interstate trips during the early part of 2006 and clearly therefore the accused could not have been engaged in a sexual relationship with the complainant at that time. Similarly, he submitted that the complainant was wrong in relation to what cars were at the warehouse at what time and that this had been objectively proved through the evidence of Mr Swaffer.
The third inherent improbability that was pointed to was the evidence of the complainant that he was able to ejaculate at a time prior to growing pubic hair or other hair on his body. There was also an issue in relation to the amount of contact the accused had with the complainant after he started at primary school.
Mr Culshaw then went on to deal with more of the allegations in greater detail. In respect of the allegations of sexual misconduct at the warehouse, he noted that this was the location in which it is alleged anal intercourse occurred. He suggested that, based upon the evidence of Mr Swaffer of the volume of work that was being done at the warehouse and the constant flow of tradesmen in and out of the premises, it is implausible that the accused would take the risk of sexually interfering with the complainant in those circumstances. He submitted this evidence was inconsistent with the evidence of the complainant that there was never anyone else at the warehouse apart from on one occasion that he described, or alternatively that the accused had the keys and had the power to prevent entry of those arriving but that there was never an occasion during the acts of sexual abuse when the tradesman arrived unexpectedly at the premises.
He further questioned how the two men who are said to have arrived, on the evidence of the complainant, during the act of sexual intercourse, got into the premises, if they had indeed arrived. In addition to this, there was the discrepancy in the evidence of the complainant that this incident had not been mentioned in any prior statements. There was also the general issue of the areas of darkness at the warehouse that may cause me to have concerns as to the veracity of the complainant in respect of the issues of sexual assault.
Mr Culshaw also addressed the implausibility of the sexual assaults having occurred in the unlocked office of the car yard when there was a possibility of any member of the public interested in buying a car coming into the office. He submitted that it is so implausible that the accused would be so bold that it simply defies belief. He submitted that the allegation of the events occurring there are entirely uncorroborated. Mr Buttigeig, who was the owner of the car yard, was not called and no explanation has been given as to his absence.
Mr Culshaw then moved on to deal with the individual acts. He drew my attention to inconsistencies in the evidence of the complainant. The first inconsistency he said was the evidence of the complainant that the first day the sexual touching occurred, it occurred in the car or one of the cars in the warehouse as compared to his police statement where he said it occurred in the office. Mr Culshaw submitted that one would expect this was a memorable event but the complainant was uncertain as to where it had occurred.[19]
[19] T106.
He then drew my attention to the inconsistency in relation to where the first genital contact occurred, which he submitted was a very significant inconsistency in the complainant’s evidence. When the sexual touching escalated to oral sex, the complainant’s evidence in court was that he was standing up whereas in the police statement he had said he was lying down. This was the first occasion in which oral sex occurred and Mr Culshaw submitted that one would expect him to have a clear memory of this.
In relation to the allegations of sexual conduct in the shower, there were significant inconsistencies submitted by Mr Culshaw in that there was no mention of the shower in the first statement to the police, in the second statement the complainant said that the accused masturbated himself in the presence of the complainant and in the third statement, the complainant said that the accused masturbated himself and the complainant masturbated the accused in the shower. And finally in evidence, the complainant said that there had been oral and anal sex in the shower.
Mr Culshaw also drew my attention to the inconsistency in relation to the allegations of when and how the accused was alleged to have attempted to force the complainant to perform oral sex upon him and submitted that this was an example of how the complainant was prone to exaggeration. In this respect, he relied on the cross-examination as follows
QIf I can move onto the incident in your evidence about Mr Cave forcing you to suck his penis.
AYes.
QDo you remember your evidence about that. You gave evidence about that yesterday.
AYeah.
QYour evidence was that you were at the warehouse, yes.
AYep.
QAnd that by that stage you had started school
AYes.
QAnd that Mr Cave pulled your head down and you put your mouth around his penis
AYes
QBut that you stopped
AYes
QIs this something that only happened on one occasion.
AYes
QSo you remember it very clearly.
AI don't remember it clearly but
QYou and Mr Cave never had anal sex by him penetrating you, did you.
ANo, but if I was around him any longer he would have.
QThis was the one and only occasion where his penis was inside your mouth.
AYeah. It wasn't inside my mouth. It was around the sides, just.
QSo your mouth was on the side of his penis.
AYes.
QYou told the police in your first statement, didn't you, that Mr Cave attempted to do this on a few occasions.
AMake me suck his penis?
QYes.
AYes.
QSo he did -
AHe really wanted it.
QSo he tried to make you do that on a few occasions but this was the only one occasion where your mouth actually came into contact with his penis; is that right.
AWell, he tried it the first time, right? And then after that he just, he kept trying to make me do it more,like, he wanted me to do it.
QSo he tried to make you do that a number of times.
AYes.
QWas it the first time that that happened that your mouth actually came into contact with his penis or was it one of the later times.
AThe first time.
QAnd all of the later times he tried to make you but your mouth never actually came into contact with his penis.
AYes, that's correct.
QIs it the case that in your second statement to the police you said 'There was just one and only occasion that Philip made me suck his penis or tried to make me suck his penis'.
AYes.
QBut you now say there were a much larger number of times that he tried to make you do that. Is that your evidence now, that there was more than one occasion.
AYeah.
QSo which one of those is wrong.
AI just think I got the wording wrong. I don't think either of them are wrong, like, well, word-wise, the first one is wrong but only because I said it not the way I should have.
There was no mention in the statements made to the police that the complainant’s mouth actually came into contact with the accused’s penis and in the statements he had said there was only one attempt by the accused to force him to perform fellatio.
In relation to the car yard allegations, Mr Culshaw drew my attention to the inconsistency between the complainant’s first statement to the police in that there was only one allegation of oral sex at the car yard originally complained of and the allegation of anal sex came later.
In relation to the incident at Port Vincent, it was submitted there are several aspects of the evidence which militate against the complainant’s version. One was the presence of Mr Swaffer and his parents, the evidence about the dugout and the location of the dugout and the evidence in relation to the painting. Whilst it was conceded that the complainant had been to the premises at Port Vincent, it was submitted that there were numerous inconsistencies between his versions of events, the statements and the evidence given in this court, especially when compared to the evidence of Mr Swaffer.
Mr Culshaw made the submission that whilst anyone of the inconsistencies or implausibilities to which he had referred may not of itself be fatal, the totality of them should leave me with a doubt as to the veracity of the complainant. He submitted that although there is no dispute that the accused and the complainant spent time together and there is no real explanation as to why the accused who is significantly older than the complainant was spending so much time with him that does not mean that he is guilty of the offences charged. It was submitted that there are other possible explanations including the accused needing an extra pair of hands to assist with the work he was undertaking.
Mr Culshaw submitted to me that doubtful evidence piled on doubtful evidence does not add to the strength of the evidence. Although it was conceded that the complainant appeared sincere when his evidence is viewed objectively against the previous statements made and the evidence of Mr Swaffer, it was submitted that I should have a real doubt as to the guilt of the accused. It was submitted to me that the confused timeline particularisation of the allegations is equally capable of supporting the inference that none of this happened as it is of supporting the inference that all of it happened, which is the explanation offered for the confusion by the prosecution.
It was submitted that even if I accept the complainant’s story, the real difficulty was finding two particular acts of sexual exploitation proven and finding that they occurred more than three days apart.
At the conclusion of the addresses, I reserved my verdict.
Discussion
Since that time, the decisions of Hamra[20] have been delivered. For these purposes I will deal with the decision of the High Court and the submissions made on behalf of the accused and the prosecution in respect of them. I note that I have received two sets of submissions on behalf of the prosecution and the accused.
[20] (2016) 126 SASR 374
Hamra, the appellant, was charged with one count of persistent sexual exploitation of a child. He had trial by judge alone. The focus before the Learned Trial Judge and on the appeals was upon the evidence of the complainant B. There were some inconsistencies between his evidence and the evidence of his mother concerning the bedrooms in which he slept. At the time of trial, B was a 50 year old man. His evidence was that he and his two brothers grew up and lived with their parents, in a home in Morphett Vale. For a couple of years, before his grandmother moved into a nursing home, she had also lived with the family. B gave evidence that he thought this was when he was 12 or 13 or possibly 14 years old. The sleeping arrangements both before and after she moved out were the subject of evidence. The Learned Trial Judge found that B’s evidence, taken at its highest, was highly generalised and non-specific as to times and dates. He found that B had been unable to relate any incident to any particular occasion, circumstance or event beyond “what typically or routinely or generally occurred”. In those circumstances, he found it impossible to identify two or more of the requisite acts.[21] He therefore found no case to answer.
[21] R v Hamra(No 2) [2016] SADC 8, [27].
The prosecution appealed to the Full Court of the Supreme Court of South Australia sitting as the Court of Criminal Appeal. The central issue concerned the construction and application of s 50 of the Act (the offence with which the accused was charged). In the Court of Criminal Appeal, the majority – Kourakis CJ with whom Kelly, Nicholson and Lovell JJ agreed, held that the Learned Trial Judge erred in directing himself that B’s evidence was not capable of proving the commission of two or more acts of sexual exploitation over a period of three days or more. The Chief Justice held that s 50 did not require evidence which allowed the occasion of each act of sexual exploitation to be identified in such a way that it was distinguished from other acts of sexual exploitation.[22] He went on to conclude that B’s evidence concerning alleged conduct in bedrooms 2 and 3 as well as the incidents while his parents were in Fiji, if believed, were capable of proving the commission of two or more acts of sexual exploitation.
The appellant’s submission before the High Court was that s 50 of the Act does not ameliorate the requirement that the prosecution must prove, and therefore the evidence must be capable of particularising, a “distinct occasion” or “distinct transaction” constituting each alleged sexual offence.[23]
[22] R v Hamra (2016) SASR 374, p 389.
[23] Hamra v The Queen [2017] HCA 38, [18].
The High Court comprising Kiefel CJ, Bell, Keane, Nettle and Edelman JJ held that the basic difficulty for this submission was the plain terms of section 50(4) that states,
(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a) subject to this subsection, the information must allege with sufficient particularity—
(i) the period during which the acts of sexual exploitation allegedly occurred; and
(ii) the alleged conduct comprising the acts of sexual exploitation;
(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i) allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i) in relation to the child who is allegedly the subject of the offence against this section; and
(ii) during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
They held that this provision modifies the common law by providing that although the information must allege a course of conduct consisting of acts of sexual exploitation it need not "identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred" (s 50(4)(b)(ii)). The sub-section requires the jury to find the same two or more acts committed over a period of three or more days in order for the accused to be convicted but, provided that two or more distinct acts can be identified, it does not require the occasions of those acts to be particularised other than as to the period of the acts and the conduct constituting the acts. In this respect, s 50(4)(b)(ii) has the same effect as its predecessor provision s 74(4), that did not require particulars to "differentiate the circumstances of commission of each offence. An example which illustrates this point, is evidence of a complainant that an act of sexual exploitation was committed every day over a two week period.”
They went on to find that, applying the test that was enunciated in Doney v The Queen,[24] the evidence of B taken at its highest demonstrates there was a case to answer. The court looked at the three categories of evidence given by B and considered whether his evidence was capable of being accepted in respect of each of the alleged acts of sexual exploitation. In respect of the first and second categories of his evidence, the appellant had submitted that there was no case to answer in relation to those categories for three reasons. The first was that the bedroom three allegations could not have occurred when B was 12 or 13 years old because his family only met the appellant after he had finished his teaching studies in 1978 and B turned 14 on the 1st of November 1979. As to this submission, the court found that the timing of the commencement of teaching in 1979 by the appellant did not preclude him meeting B’s family and the occurrence of the alleged offending in bedroom three before B turned 14 on the 1st of November 1979. But even if it did, the alleged acts would still constitute an offence if B was 14 rather than 13.
[24] (1990) 171 CLR 207, p 214-215.
The second submission was that the allegations concerned undifferentiated offending and were therefore incapable of constituting the s 50 offence.
The court concluded that this submission was based upon an incorrect understanding of s 50. The prosecution was not required to prove particulars to prove the s 50 offence in a way that differentiated the circumstances of each act of sexual exploitation. As the court said, “It was open to conclude that there were two or more acts of sexual exploitation committed if, for instance, the judge concluded beyond reasonable doubt that the appellant committed the bedroom two acts of sexual exploitation every time he stayed over, which was nearly every weekend for months, and possibly years, from when B was 13 or possibly 14”.[25]
[25] Hamra v The Queen [2017] HCA 38, [33].
The third submission was taking the evidence at its highest it was not open to conclude beyond reasonable doubt that any of the bedroom two allegations occurred before B turned 17. In respect of this submission, the court concluded, based on the evidence given by B as to movements throughout various bedrooms, there was a case to answer.
The submission concerning the third category of B’s evidence was that the acts alleged to have occurred whilst his parents were in Fiji could not be accepted. This submission turned on the question of a reasonable doubt as to when the alleged offence had occurred and if so, whether the complainant had turned 17 prior to the alleged incident. The court concluded that taking the evidence at its highest, the evidence of B and his mother plainly permitted the conclusion beyond reasonable doubt that he had not turned 17 at the time the parents took their trip to Fiji.
The issue for me in respect of this case concerns the second contention in relation to the first and second categories of B’s evidence. That is, the necessity or otherwise for the Crown to prove particular acts of sexual exploitation that could be said to comprise at least “two distinct acts” spanning a period of not less than three days.
Discussion
The complainant, in this matter, gave his evidence in a manner that was at times halting, inconsistent with other evidence and statements that he had given and inconsistent to some extent with evidence given by others. However, his presentation and his description of events when he described the accused committing sexual acts upon him or causing him to commit sexual acts on the accused were extremely compelling. He was, as Mr Culshaw conceded, a very sincere witness. Although, he was inconsistent as to a number of matters, it must be remembered that the allegations are that these offences were committed against him when he was a child of about 12 years old, over 10 years ago.
I found his account of how the accused became acquainted with their family and the relationship that subsequently developed between him and the accused consistent and compelling.
The evidence of the complainant’s mother supports the complainant’s account. She moved the family to Adelaide in November 2005 after meeting the accused on only one occasion. They met after she had placed an advertisement in the paper looking for a “family man”. The complainant had also been there on the occasion the accused came to Swan Hill to meet her.
The timing of when the family moved to Adelaide is important in this trial. Both, the complainant, his mother and sister have a recollection of the accused taking them to the fireworks on New Year’s Eve 2005. The complainant’s mother described the accused and the complainant spending a lot of time together, going out on numerous occasions, sometimes more than once a day.[26] There were some occasions when other members of the family went out with them. She gave evidence that the trip to the country that the accused and the complainant took to do some painting occurred when they were living at the shop in Marion. If this is correct it would have been shortly after they arrived in Adelaide and before the complainant started school in Adelaide. The weather at the time was very hot. This evidence is consistent with the evidence of the complainant and Mr Swaffer on the topic. The evidence of Mr Swaffer also supports the complainant’s evidence about him travelling to Port Vincent with the accused for the purpose of painting. The inference to be drawn from all the evidence is that the accused had an interest in the complainant. This interest was not to the exclusion of the other family members but certainly the accused appears to have spent much more time alone with him than either in the company of others or alone with other family members. This relationship is explained in detail by the complainant as one in which sexual behaviour commenced very shortly after he came to Adelaide and continued until the family went to live at Angle Vale, at which time the accused no longer associated with any members of the complainant’s family.
[26] T127.
It appears from the evidence that the family lived at the shop in Marion with no bathroom and an outside toilet and then moved to a premises in Edwardstown before eventually moving to Angle Vale. The exact timing of this is not clear. However the complainant’s mother was aware of two interstate trips that the accused took that related to his work. On the evidence of Mr Swaffer, one of these occurred in March 2006 however he was unsure of the exact timing of the other. This evidence is a guide to the time at which the accused and the complainant were acquainted. In addition to this, the agreed facts establish that the complainant attended BPS between 30 January 2006 and 24 March 2006 and thereafter in May 2006 went to school in FP. I am satisfied that the evidence establishes that the complainant and the accused were acquainted from November 2005 to the end of March 2006.
The account given by the complainant is that the accused after he commenced touching the complainant in a sexualised manner did so on many many occasions, in many different places and in many different ways. These events occurred so frequently that he is no longer able to differentiate between each occasion and each act. If the acts occurred with this frequency the fact that the complainant is no longer able to differentiate between these occasions and to state categorically the position that he was in when these offences occurred or the exact way in which these offences were committed is of no surprise to me at all. Indeed, I would be surprised if the complainant purported to be able to do so, so many years after the events. In all likelihood, there would be little to differentiate the occasions of sexual touching other than the places in which they occurred. In this regard, the complainant has been relatively consistent. It is unrealistic to expect that a person can recount with precision their memories of childhood and events of significant variation, volume and detail such as these.
The submission was made by Mr Culshaw that the evidence of the complainant as to the allegations that the sexual abuse occurred every day after the first instance of anal intercourse is inherently implausible as there is evidence that the accused went interstate for two periods during this time. The evidence of the complainant was that it occurred when he saw the accused and when he did it happened every day. I accept it is possible that the accused went away for two short trips and that the complainant did not see him during these periods and he is therefore wrong about these events occurring every day. However that error does not of itself cause me to doubt the other aspects of the complainant’s evidence. The complainant was a young boy and these events occurred on his version with such regularity and routine that it may well have seemed as though it was an everyday occurrence.
Mr Culshaw was critical of the lack of corroboration. There is no corroboration. However, the complainant has given evidence about many matters that are factually correct and explain and put in context the evidence of his allegations of sexual conduct by the accused. This includes the evidence of opportunity, sexual interest, locations and occasions when the sexual offending could have occurred. His evidence is supported by his mother, his sister and Mr Swaffer. It is not unusual in cases such as this not to have corroboration in the legal sense and neither is it required.
The agreed facts make it plain that the complainant is wrong about the accused being circumcised at the time of the alleged offending. This was the evidence of the complainant.[27]
[27] T79.
QDo you know what the word 'circumcised' means.
AYes.
QDid you know what the word 'circumcised' meant when you were 12.
ANot really.
QWas Mr Cave circumcised.
ALooking back on it now, yeah, he was.
QWhen you say 'looking back on it now' what do you mean.
AI didn't know exactly what it meant back then but know he was.
QYou made a comment before that you would be able to tell the court the size of Mr Cave's penis.
AYes.
QYou were very familiar with it.
AYes.”
QQ. Saw it a lot of times.
AYes.
QAnd there is no way that you could be mistaken about that
ANo.
QThere's no way that you could be mistaken about whether he was circumcised.
ANo.
I accept that the complainant is wrong. One explanation for this is, of course, that he has never seen the accused’s penis in which case any sexual activity that involved the accused exposing his penis probably could not have happened. Another is that the complainant was young, inexperienced and got it wrong or it was not really significant in the scheme of the things that were happening. A further explanation may be that when he saw the accused’s penis they were engaged in sexual activity and it was then erect. In that event it would not have been so obvious whether he was circumcised or not. The question for me is whether the evidence on this point causes me to have a reasonable doubt as to any one of the elements of the offence. It does not. The complainant was very young. There may be many explanations for this error.
I do not accept the criticism made by Mr Culshaw that the allegations are inherently implausible because the complainant had not grown pubic or other body hair and was therefore not able to ejaculate as he claims to have done. I have not had the benefit of any medical evidence on this submission.
I do not accept the criticism that the allegations are inherently implausible because the accused would not have taken such significant risks of being detected. It is well known that some people take extraordinary risks when committing criminal offences. These are often calculated risks. For some people there is an added element of excitement associated with such activities when they are risky. The allegations are that the offending always took place in private places – in the car, warehouse, car yard and dugout at Port Vincent. There is no suggestion that the offences occurred in public. I do not consider that the allegations that the offending took place in this way are implausible.
I accept that there are inconsistencies in relation to the complainant’s evidence as raised by Mr Culshaw. I will deal with these criticisms individually. There is a criticism as to whether and when other people came into the warehouse and what they did. I accept that the complaint did not tell the Police about this. It is also not plain from the complainant’s evidence how they did enter the premises, the tradesmen gained entry. Nevertheless, it is possible that these tradesmen did gain entry with a key or even that the accused had allowed them to access the warehouse.
I accept that there are inconsistencies in the complainant’s evidence as to when and where events occurred and the general order of the events. However I accept the explanation of the complainant as given in the cross-examination. [28]
[28] T93.
QIs it right, and I don't want to be unfair on you so please tell me if this is wrong, is it right that the reason for that difference is because you can't exactly remember what happened and where and when.
ANo. All these things happened. It just happened much, there's no time line to it. I don't know. It's not the thing I can remember, like, it's the exact time line. Do you know what I mean? Like, it's hard to remember how exactly it went down sort of thing.
QIs it that you might have the order of things mixed up.
AYes.
QYou might have the exact places where things happened mixed up.
ANo.
QOr is it the case that it didn't happen at all.
ANo.
QAnd that you are making it up.
ANo. Like I said yesterday, [the accused] knows exactly what has gone on, yeah. He just - he's just wasting everyone's time. I don't know. I don't know how he can sit there so calmly. I don't know. If you was in this situation and you were innocent would you be sitting there so calm, I don't think so. You would be, you know, a little bit -
In relation to the criticism made of the complainant that he is inconsistent as to whether he was standing up or lying down when the first act of fellatio occurred and the criticisms of the inconsistencies of the events in the shower, I consider these to be inconsequential. They do not give rise to any doubt as to the veracity of the complainant in my mind. As the complainant explained in his evidence the sexual contact was so frequent and so routine that it has become very difficult for him to disentangle them. I do not think the complainant is being untruthful but rather is doing his best to explain a course of conduct by the accused.
Nor do I consider it significant that when the complainant was approached by the police at the age of 12, he did not disclose the abuse that he now alleges. I accept the explanation given by the complainant that he was at that time concerned as to how the disclosure would affect his family and that his family may have viewed him in a negative light if he was to disclose. It is clear from the evidence I have heard that the family was a disadvantaged family. They lived in very humble surroundings. The complainant’s mother was prepared to move her large family of young children from Swan Hill to Adelaide shortly after meeting the accused and then to live in a premises with no furniture and no bathroom where they all slept on mattresses on the floor on in one room. I consider that it is not unusual for children in this position to try to ensure that they have some security and to be afraid of the consequences of revealing abuse such as this. I accept that this was how the complainant felt at that time.
The complainant has given a number of statements to the police about these allegations. Some are inconsistent with his evidence. Some of these inconsistencies, in my view, arise because it is simply impossible for an individual to recount all the events that have occurred when they have been abused in this manner and over this period of time. Peoples’ memories are not always perfect even when there can be simply no doubt that particular events have occurred. This must be even more so when a person is a child and confused about the acts and being introduced to this type of behaviour for the first time.
I do not accept that the complainant has made false allegations in the hope of gaining a financial benefit. His account of this offending was so raw and heartfelt, with so much detail and so genuine that even making allowance for demeanour not being the overriding consideration I am satisfied that he was a truthful and reliable witness.
In considering the complainant’s evidence and that of the prosecution witnesses, I have borne steadily in mind the forensic disadvantage suffered by the accused. This disadvantage is best demonstrated by the inconsistencies in the evidence of the complainant and his uncertainty as to particular episodes and acts. However, even bearing in mind these inconsistencies and the forensic disadvantage suffered by the accused, I am satisfied beyond reasonable doubt that the accused did on more than two occasions engage in acts that would amount to sexual offences with the complainant.
I accept that the accused took a sexual interest or had a sexual interest in the complainant. He commenced demonstrating this interest by behaving in what others may consider an innocuous manner by touching the complainant on his thigh and gently rubbing. I find that he did this in order to gauge the reaction of the complainant in an effort to determine whether if he proceeded with these acts, the complainant would be likely to complain at the time or immediately thereafter. Having satisfied himself that this was not the case, the accused then began touching the complainant in a more overtly sexual manner. I am satisfied he committed acts of fellatio upon the complainant on many occasions at the warehouse. Exactly how many occasions is not clear but it was on multiple occasions, on many different days within the charged period. I am also satisfied that the accused, on one of those occasions commented that the complainant had “mature spoof”[29] and that was something that stood out for the complainant and that he could recall clearly. I am satisfied that the accused touched the complainant’s penis on many occasions at the warehouse. I am also satisfied that the accused caused the complainant to touch his penis on many occasions whilst at the warehouse. The complainant described in detail the occasion upon which the accused told him to spit on his hands and lubricate his penis and then the accused using his own hand put the complainant’s penis into his anus. No words were exchanged but the accused was making moaning noises at that stage. I am satisfied that the event that the complainant described occurred in the manner that he described.
[29] T46.
In relation to the events which occurred in the shower area of the warehouse, the complainant’s evidence was more inconsistent. His evidence was initially that masturbation had occurred but then gave an account of other sexual touching having occurred in the shower as well. It is possible that the complainant is confused in relation to exactly what conduct of a sexual nature occurred in the shower as this type of conduct occurred on such a regular occasion in so many different places.
I am satisfied that the accused engaged in sexual conduct with the complainant at the car yard on more than one occasion and that this conduct was anal intercourse and fellatio.
Further, I am satisfied that the accused engaged in sexual conduct that amounted to fellatio with the complainant at Port Vincent.
I am satisfied beyond reasonable doubt that the accused committed each of the acts particularised on the information. Further, although the first and last occasion or act is not clear, the chronology of this relationship and the number of occasions when the offending occurred is such that I have no doubt at all that there was more than three days that separated the acts that constitute acts of sexual exploitation and each are acts that amount to a sexual offence as defined.
I, therefore find the accused guilty of the offence of persistent sexual exploitation of a child.
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