R v Charles - [2016] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHARLES
Criminal Trial by Judge Alone
[2016] SADC 158
Reasons for the Verdict of Her Honour Judge McIntyre
16 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with one count of Indecent Assault.
Accused acquitted of the charge.
Criminal Law Consolidation Act 1935 s56, referred to.

R v CHARLES
[2016] SADC 158
INTRODUCTION

The accused was charged on information dated 14 January 2014 with one count of indecent assault contrary to Section 56 of the Criminal Law Consolidation Act 1935. The particulars of the offence are that he, between 1 January 2000 and the 1 January 2002 at Hackham, indecently assaulted SGG. The accused entered a plea of not guilty and elected to be tried by a Judge without a jury.
The prosecution alleges that the accused took advantage of his children’s friendship with the complainant and his brother to commit the charged offence. The charged offence is alleged to have occurred in the bathroom of the accused’s home at Hackham after a visit to the beach when it is said that the accused took hold of the complainant’s penis. The defence case is that the accused’s association with the brothers was innocent. In particular the accused denied any touching of the type alleged to constitute the indecent assault.
LEGAL CONSIDERATIONS AND GENERAL DIRECTIONS
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a Court, having conducted a trial by Judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial Judge is bound to be aware. I do nevertheless remind myself of the following:
·An accused person is presumed to be innocent of a charge unless and until his guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof and, to the extent that he might put forward a defence, he does not have to prove it. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the offence, then I must give the accused the benefit of doubt and find him not guilty.
·In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·I have reminded myself of the usual directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
The accused elected to give evidence in this Court. I remind myself of the following matters:
·He was not bound to give evidence.
·He has gone into the witness box and he has taken the oath like any other witness.
·He has exposed himself to the test of cross examination.
·He could have remained silent leaving the prosecution to discharge its burden of proving the case.
·I should assess his evidence and the weight to be attached to it in the same manner in which I assess the evidence of all other witnesses.
·I further note that by entering the witness box the accused does not assume any onus of proof. The onus remains with the prosecution.
I remind myself that it is not a question of preferring one version over the other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charges beyond reasonable doubt. If I am unable to say where the truth lies then necessarily it means that the prosecution has failed.
ELEMENTS OF THE OFFENCE
In order to prove the offence of indecent assault, the prosecution must prove each of the following elements beyond reasonable doubt:
1An application of force to the complainant.
2That the application of force was deliberate or intentional.
3That the application of force is unlawful.
4The complainant did not consent to the application of force.
5It was accompanied by circumstances of indecency.
The key issue in this case is whether the prosecution has proved that the accused touched the complainant as alleged. If the touching alleged has been proven there is no question that it was deliberate and intentional and that it was, in all of the circumstances indecent. There is no suggestion of a lawful excuse for the touching rather it is said that it did not happen. The complainant was incapable of consenting due to his age at the time.
UNDISPUTED FACTS
SG and his brother MG were born on the 22 September 1989. They did not know their father. They grew up in a single parent household with their mother DG at Morphett Vale. In primary school, SG and his brother met the accused’s daughter, KC, who was about the same age. Through that acquaintance the twins came to know the C family, which included the accused, the accused’s wife and their son K who is a few years younger than the complainant. The complainant, SG, developed a close relationship with the accused son and his brother MG became friendly with the accused’s daughter. The prosecution case is that the accused involved himself in the activities of the complainant SG, his twin brother MG and his son as part of a grooming process which culminated in the sexual offending charged on the information and also to sexual offending against MG.
After meeting the accused’s daughter the complainant and his brother regularly visited the C home. When they first met the accused and his family were living at Carbenet Drive, Hackham. Sometime in 2000 the accused and his wife leased their Hackham property to another person in order that they could operate an equestrian business. It is common ground that between June 2000 and June 2003, the accused and his wife leased both the business and the house at the States Park Equestrian Centre at 645 Onkaparinga Hills. The accused and his family moved back to Carbenet Drive after the expiration of the States Park lease. They remained there until about mid-September 2005 when they leased a property at Meadows.
SG says that the indecent assault that is the subject of the charge occurred at the Hackham address but is not clear whether it was the first occasion that the C family lived at Hackham or the second. I will return to this issue shortly.
SG’S EVIDENCE
SG gave evidence about his family background and of living with his mother and his twin brother MG at Morphett Vale. They had no contact with his father. The only other adult with whom they had regular contact was his maternal Grandmother who it is agreed died on 24 November 2004.
SG said that he is no longer close to his mother or brother and, that growing up, he and his brother had very different personalities. He was very interested in footy, sport generally, motorbikes and cars. His brother on the other had was more interested in gaming, computers and PlayStation.
He said that he met the accused’s daughter at primary school through his brother when he was in grade 3 or 4. He would have been 8 or 9. As a result of that, they visited the house at Carbenet Drive, Hackham. They visited regularly and he got to know her family; the accused, his wife and her younger brother. Her younger brother was three or four years younger than him but they had a lot in common and SG struck up a friendship with him doing lots of outdoor activities such as fishing, motorbike riding and kicking the footy. These were activities that were of no interest to his brother, MG. The accused often joined SG and his son in various activities such as kicking the footy and fishing. SG described the accused as the closest thing to a male role model that he had. He was close to him and thought that he was a “really good bloke”.
SG said that the accused’s wife and daughter were very interested in horses and were often absent from home when he visited due to horse related activities.
SG said he generally went to the C house on weekends but, when it was school holidays, they would go more often. He said that they stayed overnight from time to time. He said that he was generally driven to their house by his mother. At the beginning SG would usually go with his brother MG but as time went on he became friends with the accused and his son and so sometimes it was just him.
He explained the moves that the C family made and said that he visited them at the Hackham house during both occasions they lived there and also at the States Road house. He was unclear about the timing of the various moves but was prepared to accept the dates that were put to him as outlined above.
He described playing pool at Carbenet Drive during both stints and also in the sheds at States Park. He said as a general rule it would be him and KC against the accused. He believed his brother had also played. I note his brother did not give evidence about playing pool. SG said that the accused instituted a penalty for the loser. He said that the penalty for losing was that you would have to do laps of the table with your pants down. He said that his underwear would go down with the pants so that his bottom and genitals were exposed. He said that also happened to K but he was not sure that it happened too often to the accused. He said the amount of laps he had to do depended on how much he had lost by.
SG said that he would watch movies with the accused and his son. He said on occasion this would include heterosexual pornography. He said the accused showed them pornographic movies on maybe three occasions on the first stint at Carbenet Drive and a couple of times at States Road. What he described as a handful of times all up. MG did not give evidence of this. He also described seeing the accused drink alcohol and of the accused offering him beer. He said this happened during both stints at Carbenet Drive and at States Road.
SG gave evidence about attending a swimming pool at Reynella called Sate Swim. It is an agreed fact that between the 23^rd day of August 2001 and the 31^st day of July 2004 the accused was employed at the Sheriffs Road Swim Centre located at 117 Sheriffs Road Reynella. During this time he taught children to swim, was a junior squad coach, and was also responsible for hosing out the changing rooms and cleaning.
SG said that they went to the State Swim Centre at Reynella a handful of times, approximately 4 or 5 times, each time with the accused and his son and possibly another boy called David. He does not remember if MG went. MG gave evidence that he did attend. They went there when the pool was both open and closed to the public. When it was open they would play in the pool with other children. They went on 2 or 3 occasions when it was closed to the public. He said on these occasions they would all swim naked. He recalled seeing KC, the accused and possibly David. He said that at first he was uncomfortable swimming naked but he got used to it. He described the accused “daking” the boys and throwing them into the water.
When they finished they would use the change rooms at the pool to shower and change. They would shower with no clothes. The accused would either be in the shower or making sure that the boys were rinsing or washing their hair.
He is unable to recall whether these visits crossed over both stints at Carbenet Drive and States Road.
They also went to the Noarlunga Leisure Centre. These visits included the accused, his son and possibly his brother MG. MG gave evidence that he did attend these trips. They went there more often than to the Reynella pool. This occurred over all stints at Carbenet Drive and State Road. Generally the accused would swim laps while the boys would play in the pool. They all kept their clothes on. The accused would insist on them showing after the pool. SG would shower with no clothes on. He described the accused as being present while he was showering and glancing at his genital area.
The accused also took SG to the beach. They mainly went to the Port Noarlunga beach with the accused and KC. He did however refer to one occasion when he went to Maslins Beach with the accused and KC. He said he was 11 or 12 at the time and they went to the nude side of the beach. He said that the accused daked him when they were on the beach and that all three remained naked. MG gave evidence that he attended Maslin’s beach with the accused on two occasions. He said SG was there on the second occasion but he was not sure if he was there on the first. MG said that the accused and K were naked on the first occasion. He remained clothed. He said that he was not sure about the clothing on the next occasion.
SG said that when they returned from the beach the routine was that the boy’s would take their clothes off in the laundry of the house and walk naked to the bathroom in order to shower. He said that KC would shower first and then he would jump in, then the accused. He described all three being in the bathroom together. He said this occurred over the first and second stint at Carbenet Drive. He cannot remember if it occurred at States Park. He said that this took place on at least 10 occasions.
SG described seeing the accused with an erection on two occasions. He said that the first occasion was when they were swapping over in the shower and the accused made an attempt to grab his genitals. He said he swiped him away, got changed and ran home.
There was another time when he said the accused asked him if he wanted to touch his penis. SG said no then he said the accused grabbed his penis whilst he was still washing his hair. SG said that the accused “gave it a few shakes” and then let it go.[1]
[1] Transcript p36
SG described the first incident as occurring at Carbenet Drive when he was 11 or 12. He said he thought they had possibly been at the beach. He said that it was just KC, himself and the accused in the bathroom. He said that KC got in the shower first. As he got out the accused was drying KC. SG got in the shower. He can’t remember what KC did but he described what happens as follows:
QDid the accused get in the shower with you.
AYes.
QDid he have an erection.
AI believe so.
QTell us with as much details as you can remember what happened when he was in the shower with you.
AOn the first instance?
QYes.
AI believe he went to grab my penis and I kind of swatted it away.
QDid he say anything.
ANot that I can remember.
QHow did you swat it away.
AI brushed it off.
QYou are talking about brushing his hand.
AYes.
QDid you say anything.
AProbably not to touch me there.
QWas there any response when you said that to the accused from him.
ANot really.
QWhere was (K) when that happened.
AI wouldn’t be able to tell you.
QWas he in the bathroom.
AI believe so.
He said that he was in primary school when this happened and he was maybe in year 6.
SG then went on to describe the second occasion where he saw the accused with an erection. This is the incident that forms the basis of the charge of indecent assault. He gave evidence in chief as follows:[2]
[2] Transcript p39-41
QYou’ve spoken of the second occasion. Where were the (C) family living when the second incident –
ACarbenet Drive.
QFirst or second stint.
APossibly the second.
QYou can’t be sure.
AYes.
QWhere had you been earlier in the day.
AOn the beach.
QDid you then undertake the ritual you referred to earlier.
ACorrect.
QYou, the accused and (KC) finished in the bathroom together.
AYes.
QDid (KC) shower first.
AYes.
QYou showered second.
ACorrect.
QWas the accused naked in the bathroom when both of you and (KC) showered.
AYes.
QAfter (KC) had finished his shower did you get into the shower.
AYes.
QWhat did (KC) do after he finished with his shower.
AI believe dried – he was drying himself.
QWhile you were in the shower what did the accused do.
AHe was watching and then he jumped in while I was washing my hair.
QDid he have an erection.
AI believe so.
QDid you see it.
AYes.
QWhat happened after he got in the shower.
AWell, he – I was washing my hair to get all the salt water and whatnot out. While my hands were above my head he grabbed my penis and pulled on it.
QHow many times did he pull on it.
AFive or six maybe.
QDid he have an erection while he was doing that.
AYes.
QWas he doing anything to himself when he was pulling on your penis.
ANot that I can recall.
QDid he say anything to you when he grabbed your penis.
ANo.
QDid you say anything to him.
AProbably – probably ‘Don’t touch me there’ – honestly it was all a bit overwhelming.
QWhere was (KC) when this was happening.
QPossibly still in the bathroom.
QHow long did he pull your penis for.
QMaybe 10 second, I would be able to time it, it happened so quick.
QDid it cause you to have an erection.
QI believe so.
QHow did that make you feel.
QAwkward.
SG was then asked about the timing of this incident. He said it occurred maybe a couple of months after the first incident and that he was in primary school. He said that he was 13 when he went to High School. He was also asked if there was any conversation during the course of these event. He gave evidence as follows:[3]
[3] Transcript p42
QDid he say anything to you.
A‘Would you like to touch mine’.
QWas that while he was holding your penis.
AI believe so.
QWhat did you say to that.
A‘I will wait till mine’s bigger’.
QWhat did you mean by that.
AMine wasn’t as big as his.
QYou declined the invitation.
AYes.
He said that the first time he told anyone about this incident was when he spoke to Detective Murphy. Initially he said that nothing happened but subsequently he told her about the shower incident. He said that he has never discussed this matter with his brother or his mother.
In cross-examination SG was asked about the timing of the first incident. He again said that the first incident occurred when he was 11 or 12 at Carbenet Drive. It was put to him that when he was 12 the C family were living at States Park. He said that it was hard to say when the first incident happened but he believed that it was when the accused was living at Carbenet Drive the first time or the first stint.
He was then asked about the second stint. His evidence was as follows:[4]
[4] Transcript p63-64
QYou’ve referred to a second incident where the (C) family were living at Hackham, at Carbenet Drive and you told us that it was possibly the second stint, although you’re not absolutely sure.
AYes.
QIf that’s the case that’s some years after the first incident, I suggest.
AI was definitely in primary school for both incidents.
QAnd I’ve suggested to you it couldn’t have happened at Carbenet Drive when you were 11 because the family had moved; you’re not sure about that.
AIf you’re saying it’s when I’m in high school –
QWell, I’ll just take you through your evidence yesterday. You were asked when the second incident occurred, the second incident is the alleged offence in this trial.
AYes.
QYou were asked where that happened and you said ‘Carbenet Drive’.
ACarbenet Drive.
QYou were asked when that happened, was it the first stint or the second stint, and you said ‘Possibly the second’ but you can’t be sure. So in your mind you’re not sure.
AI remember, I was in primary school. So whatever stint that was, that’s when it happened.
QAnd if it was the second stint, then that would have been some years apart, those two incidents. And how long do you say in between these two incidents.
AWithin months, maybe, I wouldn’t be able to tell you – it’s a long time, 15 years ago.
QIf these two incidents that you’ve alleged happened at Hackham when you were in primary school you would have only been perhaps 10, I suggest.
ACorrect.

SG was then cross-examined about the second incident and an inconsistency between his evidence in court and what he said to police. This cross-examination was as follows:[5]
[5] Transcript p65-66
QYou told us that Mr C grabbed on your penis and pulled on it five or six times maybe.
AYes.
QI suggest that that didn’t occur.
AYou can suggest that, but 100% happened.
QJust as you told us yesterday.
AYes.
QI suggest that you told police that when Mr Charles took hold of your penis, he gave a couple of shakes. I suggest you said that to police on 17 November 2011 when you made your statement.
AYes.
QDid you want to check your statement.
ANo, I understand, like I would have said it.
QYou told police that he grabbed your penis and took hold of your penis and gave it a couple of shakes; do you agree that’s what you said to the police.
APossibly.
QWell, you need to be a bit more definite. You either did say it to police or you didn’t; do you want to check.
ANo.
QDo you accept if it’s in your statement that’s what you said to the police on that occasion.
AYes.
QYou understand what I’m putting; that’s a little different from what you told us yesterday that he pulled on it five or six times.
AI started with I wasn’t comfortable talking about it and now it’s dragged on for four or five years, that’s all they seem to talk about.
SG further agreed that when Detective Murphy asked him if anything unusual had happened with the accused he replied ‘not to him’. He agreed that given his evidence at the trial that was a lie. He was aware however that something might have happened to his brother as a result of a conversation with a mutual friend and he referred the police to his brother.
DG
DG is the mother of SG and his twin brother MG. The boys have never met their father. She said that during the boys’ childhood they all lived in Morphett Vale until they were 17 and 18. During that time she was a single stay-at-home mother. She said that they started at primary school together. They were at Flaxmill Primary School from 1994 to 1998 and then they went to the Hackham West Primary School. They both started at Wirreanda High School in 2002.
She described both boys as having different personalities. SG was into the outdoors and sports whilst MG preferred to stay indoors and on his computer.
She said that her boys came to know KC, the accused’s daughter, at Hackham West Primary School. MG was friendlier with KC than SG. She said that KC would visit their home and the boys would visit the C home at Carbenet Drive and States Park. She said that she met the rest of KC’s family, the accused, her mother and her brother K. Her brother was younger than the twins by maybe four years. She said that the accused and his son would come to her home and pick the boys up and take them to the beach. She knew the boys went to swimming pools with the accused. She said that she spoke to the accused in relation to picking up and dropping off the boys.
She has a general idea about what has been involved in the court proceedings concerning her sons but neither SG nor MG have spoken to her about the matter.
MG
MG gave evidence confirming his family’s circumstances and his relationship with his brother. He described them as having different personalities. He said they are not particularly close now seeing each other only maybe twice a year.
He said that when they were both at Hackham East Primary School, he became friends with KC. He was 10 or 11 and likely in Year 5. He said KC was a year younger than him. He confirmed the relationship between himself, his brother and the C family. He described the C family living arrangements, specifically their being at Carbenet Drive twice and staying at States Park in between. He described attending the Noarlunga Swimming Centre approximately six or seven times. He said that he went twice to the State Swim Centre with the accused, K and SG. On both occasions it was a Sunday and the pool was closed. On the first occasion they all remained fully clothed but on the second occasion they all swam naked. He said he was about 12 or 13 at the time. He described having a shower at the pool with the accused and the two other boys in the change room at the same time. He said the accused would see them naked and would hand them body wash and shampoo.
He said that he went to Maslins Beach on two occasions with the accused. The first occasion occurred when the C family was living at Carbenet Drive for the second time and the second occasion was approximately two weeks later. He was 13 or 14 at the time. On the first occasion he went with the accused and K. He thought possibly SG was there as well. He said that the accused and K swam naked but he retained his clothes. On the second occasion he said his brother was there. He said that he remained clothed throughout; he was not sure about the others. He described them all as having boogie boards. He said that he got a rash from the sand. He said that when they got to the C home, they dropped their clothes at the front door to avoid getting sand in the house, as was their usual practice, and then they went to have a shower. He said that when he got into the bathroom, K, SG and the accused were there. He said K and SG showered first while he and the accused waited. K and SG went into the lounge room once they had finished. He said he got out of the shower, the accused said that he saw he had a rash and that they should put some lotion on it. He described the accused getting some lotion that he put on his chest. MG said that he got aroused and had an erection. The accused then put lotion on his penis. He said that the accused masturbated MG’s penis for about five minutes and that the accused also had an erection. The accused told MG to finish himself off and left the bathroom. He then had a cold shower, went into the bedroom and got dressed. This was the first time he had any sexual interaction with the accused. He did not tell anyone what had happened.
He said that this incident happened when the C family was living at Carbenet Drive for the second time.
He then described a number of other sexual encounters with the accused. I will not repeat what he said about those incidents but the first occurred a few weeks after the shower incident in the big shed at the Carbenet Drive house. He described other incidents in the small shed at Carbenet Drive, the lounge room at Carbenet Drive and in a vehicle on Chandlers Hill Road.
When he was 16 he told his high school friend, Emily, about this sexual contact. This was the first time he complained. He first had contact with the police when he was 19. Detective Murphy approached him. Prior to speaking to Detective Murphy he had never spoken to his brother about what happened between himself and the accused. His brother had never said anything to him about anything of a sexual nature occurring between himself and the accused.
Brevet Sergeant Caroline Murphy
Brevet Sergeant Murphy was the investigating officer. She first spoke to SG on the 15^th of September 2011. She said she had been given SG’s name by another person and that she cold-called him. He said nothing unusual had happened to him but that she should speak to MG.
She took a statement from SG on the 17^th of November 2011. This was the first time he disclosed the shower incident to her. She said there was never an occasion when she spoke to MG and SG together.
That, together with the agreed facts, was the prosecution case.
Defence Case
The only witness for the defence case was the accused. He confirmed the dates at which he and his family lived at the Carbenet Drive house and the States Park house. This is congruent with the agreed facts. He agreed that his daughter met SG and his brother at primary school. He said he saw SG and his brother a few times before his family moved to States Park. He doesn’t recall SG and MG staying the night while they were at Carbenet Drive the first time.
In June 2000 they moved to States Park. During their time at States Park the Carbenet Drive home was rented out. He said that SG stayed the night at States Park on a few occasions but does not recall MG staying the night. He said his family moved back to Carbenet Drive in June 2003. SG continued to visit and was a much more regular visitor than MG. He denied any sexual contact with either MG or SG at any of his homes.
He said that he was a swimming coach at the Sheriffs Road Swim School at Reynella between 23^rd August 2001 and 31^st July 2004. He also did a maintenance role. He said that he would sometimes visit on Sunday afternoon to do maintenance or to clean the pool. He said he took his daughter and his son on a few occasions. He said he took SG on two or three occasions but does not recall ever taking MG. He said he never swam with them because he was working. He never noticed them without bathers and never suggested that they swim naked. He further said he never showered with the boys on a Sunday afternoon.
He said that he would also take the children to the Noarlunga Swimming Pool. He would train and the children would play in the general play area. They would shower after training in individual cubicles.
He said that he took the children to Noarlunga and Christies Beach often and possibly also to Moana. He said that he took SG and K to Maslins Beach on one occasion. They went snorkelling first but took their bathers off on the way back to the car and went swimming. He said that was only for about 10 to 15 minutes. He said MG was not present.
He said that after he took the children to the beach, he would send the boys to the bathroom in order to shower. He said that while the boys did this, he would have been cleaning the car or preparing food. He said the boys normally left their clothes on the bathroom floor. He never went into the bathroom at either Carbenet Drive or States Park to watch the boys in the shower. He denies ever getting into the shower with them or engaging in any sexual contact with the boys in the bathroom. He said at most, he may have gone into the shower to get their shorts or towels. On his evidence there was no leaving of clothes at the door and no walking nude through the house.
He said that he played pool with his son and SG but denied that there was any ritual of removing pants when they lost. He said that he would stir the boys up about the pub rule that they drop their pants and run around the table. He says they might have done this, but if they did, he never saw it and never made them do it. He never did it. He agreed however he introduced the pub rule as part of the conversation while they were playing.
He denies ever showing SG pornography or giving him alcohol. He denies having sex with MG in the sheds or lounge room. Indeed he denied any and all sexual contact with the boys.
Discussion
I did not find that the evidence of the accused to be altogether convincing. His account appeared tailored to meet the evidence of SG and MG but to place it in a more innocent context; for example he conceded that there had been discussion of a pub rule related to pool and that he raised it with the boys but he denied that it had been carried into practice in his presence or at his instigation. Likewise he agreed that he had taken his son and SG to Maslins Beach and said that there was a relatively brief period of nude swimming. He denied taking MG there.
His evidence was particularly unsatisfactory in relation to MG. His evidence sought to distance himself from opportunities to offend in respect of MG – he would not concede that he had much if any relationship with MG. This does not sit well with the other evidence or even his own evidence about a car loan. He seemed defensive about MG which may have been an understandable reaction to the nature of the allegations but his evidence on that topic did not ring true. Somewhat paradoxically, the accused was less defensive in relation to SG conceding that he had spent considerable time with him albeit denying any improper conduct towards him.
Notwithstanding these reservations about the accused’s evidence, I must accept SG’s evidence beyond reasonable doubt if I am to convict the accused. He is the only person who gave evidence about the charged event.
The prosecution say that if I am satisfied beyond reasonable doubt that there has been no collusion between SG and MG then the significant similarity in their accounts demonstrates the improbability of their complaints being concocted or imagined. The defence submission is that, at best, the prosecution has proven a suspicion of guilt but that the unreliability of SG’s evidence about the charged event is sufficient to give rise to a reasonable doubt.
I have considered the evidence of SG and MG. I regard both as doing their best to be honest and truthful witnesses. Each gave their evidence in a straightforward and direct manner. SG was somewhat vague about dates and times; MG was less so. The differences in their personalities was apparent in the manner in which they gave evidence.
I reject any suggestion that they have concocted their accounts by deliberately getting together to give false evidence against the accused. I detected no collusion. The relationship between the brothers, their different personalities, the content of the allegations and the way in which the allegations emerged is contrary to such suggestion. I accept their evidence that they did not get together.
Can it be said, as the prosecution contends, that the similarity in the accounts of SG and MG demonstrates the improbability of their complaints being the product of mendacity or unreliability? There were shared features in the accounts of MG and SG. There are also differences in their accounts. For example, there was the evidence they both gave about swimming naked at the Reynella pool although SG did not give evidence of ever swimming naked in company with his brother. They both gave evidence about the accused and his son swimming naked at Maslins Beach although SG said his brother was not there on the one occasion he went and MG said he went twice but thinks his brother was only there on the second occasion. He did not give evidence about his brother swimming nude. Both gave evidence of a ritual associated with showering at the accused’s home at Carbenet Drive namely that clothes were dropped at the door, albeit SG said it was the laundry door but MG said it was the front door, and then they went naked to the shower. Both said that the accused used the opportunity provided by showering with the twins to stare at and touch their genitals. The offending described in relation to MG is far more extensive and different to the more limited touching asserted by SG. Whilst it does suggest a proclivity on the part of the accused to abuse the access he had to his son’s friends for the purpose of gratifying his sexual desires the offending described is not strikingly similar. Even the shower incidents alleged by each are somewhat different as to the circumstances. Although in other respects his evidence about the timing is vague SG is clear that he was in primary school when the touching occurred. He would have been between 10 and 11 at the time. MG says that the touching involving him commenced during the second stint at Carbenet Drive. Both boys were in high school and would have been at least 13 and possibly 14.
There are also some troubling aspects of SG’s evidence. First there are the different descriptions of the touching of his penis. In examination in chief he said first that the accused gave his penis a few shakes but then said that the accused grabbed his penis and pulled it five or six times. He told police that the accused took hold of his penis and gave it a couple of shakes. His response when that difference was put to him in cross-examination is set out above. Whilst it is true that this matter has dragged on for some years and that these are undoubtedly difficult matters to talk about, the explanation for this difference in SG’s description of the charged event is not compelling. It is not a minor difference. I am also troubled by the vagueness of SG’s evidence as to the timing of the allegations. The particulars set out in the Information indicate a date range from 1 January 2000 to 1 January 2002. It is an agreed fact that the accused’s family leased States Park from June 2000 until June 2003. SG could not say whether the incident occurred at the first stint at Carbenet Drive or the second stint. He was clear however that it happened at Carbenet Drive and that it happened when he was in primary school. I have set out the passage of cross‑examination concerning this topic. If it happened when he was in primary school then it must have been during the first stint when he was 10 to 11 years of age. He was in High School by the second stint at Carbenet Drive. This does not sit comfortably with the evidence of MG and DG that there was more limited contact during the first stint at Carbenet Drive nor again is it a minor matter that he is unable to be more precise about the particular stint given the surrounding circumstances.
Whilst I have significant reservations about the accused’s evidence and I have considerable suspicion that the charged event took place. I cannot reject his evidence beyond reasonable doubt and I am not satisfied that the prosecution has established guilt to the required standard.
I find the accused not guilty.