R v Christophers
[2017] SADC 12
•2 February 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHRISTOPHERS
[2017] SADC 12
Reasons for the Verdicts of His Honour Judge Stretton
2 February 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The accused was charged with seven counts of indecent assault and one count of unlawful sexual intercourse against five complainants. He elected for trial by judge alone. It was alleged that the accused took advantage of a number of occasions whereby children were visiting or staying with his family to commit the offending.
Held: The charges are proven beyond reasonable doubt.
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - INDECENT
Consideration of the element of the offence of indecent assault requiring the accused’s conduct to be indecent by reference to contemporary standards, and time at which ‘contemporary standards’ of decency are to be assessed in the context of historical allegations. Standards of decency are to be assessed at the time of the alleged conduct as it would be unfair to assess a person’s conduct by the changed standards of a later age. Hence ‘Contemporary’ means contemporary to the conduct rather than the date of trial. In this case however, standards of decency as they apply to the alleged conduct have not materially changed between the dates of the conduct and the date of the trial. The accused’s conduct was indecent by those standards.
Evidence Act 1929 ss 34CB, 34M, 34P, 34Q, 34R; Criminal Law Consolidation Act 1935 s 56, referred to.
R v C, M [2014] SASCFC 116; Crowe v Graham (1968) 121 CLR 375; Romeyko v Samuels (1972) 2 SASR 529; Robertson v Samuels (1973) 4 SASR 465; R v Court [1988] 2 All ER 221; Gul v Creed [2010] VSC 185; Ferguson v Walkley [2008] VSC 7; Eades v DPP [2010] NSWCA 241; BCM v R [2013] HCA 48; Douglass v R [2012] HCA 36; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, W A [2014] 118 SASR 382; R v Trimboli (1979) 21 SASR 577; Melbourne v The Queen (1999) 198 CLR 1; R V C, G [2013] SASFC 83; R v C [2013] SASFC 137; R V J, JA [2009] SASC 401, considered.
R v CHRISTOPHERS
[2017] SADC 12
The accused is charged with a number of sexual offences against five young children between 1987 and 2003.
The prosecution case is that the accused came to know the children through family, friends and a church he was involved with and that he took advantage of those relationships to commit the offences, acting opportunistically, on occasions when the children were in his care.[1]
[1] Prosecution opening, T24-25.
The accused has denied any wrongdoing and pled not guilty. He has elected to be tried by judge alone.
The charged offences
The accused is charged with the following offences. I will refer to each of the complainants and some of the witnesses associated with them with letters so as to protect their identity.
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law consolidation Act, 1935).
Particulars of Offence
Graham Thomas Christophers between the 30th day of November 1987 and the 1st day of January 1989 at Semaphore Park, indecently assaulted JO, a child under the age of 12 years.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Graham Thomas Christophers between the 30th day of November 1987 and the 1st day of January 1989 at Semaphore Park, indecently assaulted PO a Child under the age of 12 years.
Third Count
Statement of Offence
Indecent Assault. (Ibid)
Particulars of Offence
Graham Thomas Christophers between the 30th day of November 1987 and the 1st day of January 1989 at Semaphore Park, indecently assault PO a child under the age of 12 years.
Fourth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Graham Thomas Christophers between the 29th day of April 1991 and the 5th day of May 1991 at Semaphore Park, indecently assaulted EM, a child under the age of 12 years
Fifth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Graham Thomas Christophers between the 29th day of April 1991 and the 5th day of May 1991 at Semaphore Park, indecently assaulted EM, a child under the age of 12 years.
Sixth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Graham Thomas Christophers between the 29th day of April 1991 and the 5th day of May 1991 at Semaphore Park, indecently assaulted EM, a child under the age of 12 years.
Seventh Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Graham Thomas Christophers between the 15th day of February 1993 and the 14th day of February 1994 at Mannum, indecently assaulted HD, a child under the age of 12 years.
Eighth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12 Years. (Section 49(1) of the Criminal Law consolidation Act 1935).
Particulars of Offence
Graham Thomas Christophers between the 31st day of December 2001 and the 1st day of January 2003 at Goolwa, had sexual intercourse with BC, a person of the age of 8 years, by inserting his finger into her vagina.
Elements of the offence of indecent assault – Counts 1-7
An indecent assault is an assault accompanied by or committed in circumstances of indecency. The elements of that offence are:
1.That the accused assaulted the complainant. An assault is the intentional and unlawful application of force or violence to another person. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. The application of force or violence must be intentional so that a purely unintended, accidental touching, for example, would not be sufficient. The application of force must be unlawful, that is, without lawful justification or excuse.
2.That the assault is accompanied by, or occurs in, circumstances of indecency. In this context, the indecent circumstances must involve a sexual connotation.[2] "Indecency" is conduct which, by any reasonable contemporary standards, can only be described as indecent. Whilst in certain circumstances, if a person consents to being touched, then that is not an unlawful touching, it is impossible for a person of the age of the complainants’ alleged age[3] to consent to an act of indecency as a child is not legally capable of consenting to an act of indecency. Any apparent purported consent by a child is accordingly irrelevant.
[2] R v C, M [2014] SASCFC 116.
[3] Under the age of 12 years.
The alleged offending occurred some time ago. Whilst is was not submitted that in the context of this particular case that the conduct as alleged by the respective complainants, if proven beyond reasonable doubt, would not amount to indecent circumstances involving a sexual connotation, the age of the allegations could in theory raise an issue in relation to the second element of the offence if standards changed between the time of the offence and the time of trial.
Defence counsel submitted that the test is by reference to the standards at the time in question.[4]
[4] T1737, T1742-1744.
The phraseology of the vast majority of authority when considering issues of indecency and obscenity is that contemporary standards as currently accepted in the Australian community are the test.[5] It has rarely been an issue in those cases as to whether there might have been a change in such standards between the date of the alleged offending and trial, and indeed whether ‘contemporary’ means contemporary at the time of the conduct or contemporary at the time of trial.
[5] Crowe v Graham (1968) 121 CLR 375, Romeyko v Samuels (1972) 2 SASR 529, Robertson v Samuels (1973) 4 SASR 465, R v Court [1988] 2 All ER 221, Gul v Creed [2010] VSC 185, Ferguson v Walkley [2008] VSC 7.
In Eades v DPP [2010] NSWCA 241, Campbell JA did advert to the issue, saying at [40] ‘the community standards are those of the time, and might possibly change over the years.’
A moment’s thought reveals the justness of Campbell JA’s position. It would be unjust to judge a person’s behaviour at a particular time with reference to standards that did not apply to the person at the time, perhaps with reference to the different standards a community may have many years later.
To use a theoretical example to demonstrate the point; perhaps the wearing of shorts or bathers in certain public places, innocuous now, might in some future more conservative or more religious time, be regarded as offensive or even obscene. To use another example discussed during submissions, one can imagine the situation of a person wearing a shirt emblazoned with a comment or logo that might be acceptable at one time in history, but indecent or offensive at another time.
It would be obviously unjust to convict someone in, say, 30 years’ time for conduct performed today, generally regarded as acceptable, reasonable and non-criminal today. People cannot predict the future and it is plainly unfair to penalise them in the future for a current failure to predict and comply with yet-to-be-established future standards.
In the instance of the case now before court, and in relation to the allegations made by the respective complainants that the accused variously pushed a running hose under bathers up against their vaginas or rubbed their vaginas, in the court’s view community standards have not materially changed as between the days of the alleged conduct and the time of trial.
Unlawful sexual intercourse with a person under 12 – Count 8
It is an offence to have sexual intercourse with a person under the age of 12 years. The elements of that offence are:
1.That the accused had sexual intercourse with the complainant. Sexual intercourse includes penetration of the vagina, labia majora or anus by any part of the body of the accused or by any object. Any degree of penetration is sufficient. Penetration for the slightest period of time is sufficient. Consent on the part of the complainant is no defence and is irrelevant.
2.That the complainant was under the age of 12 years at the time the sexual intercourse occurred.
Legal principles
As this is a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision.
Whilst sufficient reasons must of course be given to properly explain the verdict,[6] a trial judge, sitting alone, is not obliged to express all the matters “which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law.”[7]
[6] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 36 at [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[7] Markou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, W A [2014] 118 SASR 382.
It is fundamental however that the accused has, and at all times retains, the presumption of innocence. The prosecution at all times bears the onus of proof, and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence, and must do so based only on the evidence relevant to that offence. The court must consider each alleged offence separately, having regard only to the relevant and admissible evidence concerning that charge.
The accused in this case gave evidence on oath. He was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy the court of all the ingredients of the charge. The accused is entitled to credit for adopting a course that he was not obliged to adopt. In assessing his evidence and the weight to be given to it, the court approaches the task in exactly the same way as with any other witness, always bearing in mind however that the accused bears no onus to prove anything and that it at all times remains for the prosecution to prove each and every element of an offence before an accused may be convicted of that offence.
At one stage of the defence case defence counsel informed the court that the accused’s wife would be called to give evidence. In the end she was not called. It is important to note that there is never any obligation on an accused to give evidence, or call evidence, whatsoever. There can be no adverse inference whatsoever arising from the fact that the accused’s wife, or indeed any other witness, was not called for the defence. It always remains entirely for the prosecution to prove each and every element of any alleged offence against the accused beyond reasonable doubt. The non-calling by the defence of any evidence of any kind, or potential witness for the defence, cannot bolster, support or fill gaps in, or in any way lend any probative weight whatsoever to a prosecution case.
In this trial it was put to the complainants that they had made prior inconsistent statements. I have scrutinised each and every one of those matters carefully in accordance with the settled law as it applies to suggested prior inconsistent statements.
Whilst there is no point setting out the settled and uncontroversial instructions reflecting the law that would be given to a jury, in short the prior inconsistent statements of a witness in a criminal trial are put to enable a court to assess whether it can accept the evidence given on oath as reliable or credible. The court must and has closely scrutinised the matters put to the complainants and their responses and applied the settled law concerning the analysis of them, in assessing the credibility and reliability of each and every complainant.
Both counsel agree that the prosecution case as to each complainant rests for the most part primarily upon the evidence of the respective complainant. The court has accordingly closely scrutinised the evidence of each complainant, and done so with great care.
The court will set out the complainants’ evidence in some detail. It will not all be set out, however it has all been closely considered, read, and re-read. It has all been subjected to the closest of scrutiny.
In this case, the evidence of the complainants and the accused are starkly opposed. The accused flatly denies the allegations made by the complainants. It is important to observe that in a case such as this it is not a matter of deciding who to believe or which of two versions of an event to accept, or who is more believable than the other, or anything of that nature. The question is always whether the prosecution has proven every element of a charge beyond reasonable doubt. The accused bears no onus, and has to prove nothing. Further, even if an accused gave evidence and were entirely disbelieved, that does not prove anything against the accused, it would still remain, and always remains, for the prosecution to prove each element of any given charge beyond reasonable doubt based on the evidence it calls at trial.
In this case it has been put by defence counsel that one or more complainant had or has a motive to make false allegations against the accused, and in particular that a third party has been encouraging the making and/or fabrication of complaints against the accused. Any motive to lie and in particular any motive to make false allegations is relevant to the credibility of a complainant. Accordingly the court has given close consideration to all the submissions of defence counsel in that respect and to the evidence, suggested inferences and possibilities which defence counsel drew in aid of those submissions.
However, it is important to recognise that it is not for the accused to provide or suggest a motive for a complainant to lie. No onus as to this or indeed anything else lies on the defence. Lies can be told for any number of reasons, indeed people can lie for no apparent reason. Even if there were no apparent motive for a complainant to lie that does not mean that the court must find that that complainant is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. At all times the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy the court beyond reasonable doubt that any complainant was telling the truth. The prosecution must prove beyond reasonable doubt each and every element of a charged offence beyond reasonable doubt before the accused may be convicted of that offence.
In the course of the trial evidence was tendered indicating that the accused is a person who has not previously been convicted of a criminal offence.[8] In these circumstances the court must and does bear in mind the accused’s previous good character when considering whether the court is prepared to draw from the evidence a conclusion of the accused’s guilt. The court must and does bear it in mind as a factor affecting the likelihood of the accused having committed the crime charged and bears it in mind in assessing the credibility of the explanations given by him and his credibility as a witness.[9]
[8] Exhibit D4.
[9] R v Trimboli (1979) 21 SASR 577, Melbourne v The Queen (1999) 198 CLR 1.
Forensic disadvantage
There has been a period of time elapse between the alleged offending and the trial. I refer to without repeating the dates set out in the particulars of the charges. As plainly indicated in the particulars, and reflected in the evidence given by the complainants at trial, all the offending is alleged to have occurred a considerable time ago; some of the offending is alleged to have occurred some three decades ago, and even the most recent offending is alleged to have occurred over thirteen years prior to trial.
That delay has resulted in a significant forensic disadvantage to the accused. Forensic disadvantage will occur where, as here, there are obvious difficulties for the accused in challenging and responding to allegations so long in the past.
The forensic disadvantages in having to answer allegations from many years past are plain. They will of course include matters such as; there is or may be no independent support for the accused’s account now available or locatable, given the passage of time. Potential witnesses for the accused may no longer recall events at which they were present and hence be unable to support the accused’s version of events. The accused himself may no longer recall the occasions of or surrounding alleged events clearly or at all, or the existence of circumstances and matters that might potentially or actually support his defence. If the matters were more recent, evidence and potential evidence would have plainly been more available and accessible as to the alleged events themselves as well as all the surrounding circumstances such as time, place and the presence of witnesses and so on. I cite some examples.
·For example, in this case, two complainants allege that the accused placed a hose under their bathers adjacent their vaginas and thereby indecently assaulted them. The accused gave evidence that there were one or more occasions when he used the hose to squirt or wash sand off the children, and that on at least one occasion many others were present. It may well be that those people are with the passage of time unable or unavailable to recall events or give evidence and hence the accused has lost access to such evidence.
·Another example is that the accused says that he never held a New Year’s Eve Event at all, whereas one complainant says she was assaulted by the accused in a bedroom while such an event was occurring at the accused’s house on what on the prosecution case was 31 December 2002. A complaint was made several months later, but not proceeded with at the time. The passage of time may well have resulted in the unavailability of witnesses or lack of recall by them as to whether the accused ever held such an event, or as to the specific event alleged.
·Another example is that it is alleged that the accused looked inappropriately through a bathroom window on one or more occasion at a naked complainant, whereas the accused gave evidence that at the relevant time the window was disposed as louvres covered with shade cloth such that it would have been impossible for that to occur. The passage of time has resulted in the accused having moved out of that house, the accused giving evidence that the house and windows were subsequently renovated, such that independent support for his evidence about the windows not being able to be seen through at relevant times is no longer available.
·Another example is that the defence produced two documents that it submitted were letters from complainant HD to the accused’s family some years after the alleged offending. The letters were general but friendly. To prove the letters were from HD the defence subpoenaed HD’s school records to access her handwriting for forensic comparison. The records were provided. With the passage of time the court was told that it was not possible to identify the teacher or teachers who may have witnessed the provided documents alleged to contain HD’s handwriting.
The overall delay will likely have led to the complainants, particularly concerning the very early alleged offences, being unable to remember some matters of detail. That factor has disadvantaged the accused because of an inability to test the complainant’s account in as much detail.
The delay may also mean that the accused can no longer recall exculpatory circumstances. For example, if the alleged events were more recent, the accused may have recalled that his family or indeed the complainants’ families were interstate or elsewhere such that the alleged events could not have occurred. Further, he may have recalled the presence of other witnesses or circumstances that may have rendered the alleged events more difficult, more unlikely or impossible to have occurred, and in relation to all of this, both better equipped his counsel to cross examine prosecution witnesses and/or advance his own case by way of defence evidence.
Whereas some complainants did complain historically, in some cases formal statements are unavailable that either did exist or would have been expected to exist. In some cases it is unclear what statements or information was taken by police, and in some instances current police indicate they either have not been able to locate mentioned material or that there should have been more than they located. The accused is disadvantaged in that due to the passage of time and the loss or unavailability of such material, where such material has been lost or is unavailable he did not have the opportunity to cross examine the complainant concerned on such material, or have the potential material assist his case.
The complainant in relation to the New Year’s Eve 2002 event alleged that she was penetrated. She did not complain for a time. If there had been an immediate complaint, there would have been an opportunity for the complainant to have had a medical examination, or for other forensic investigations to be undertaken. That potential material is therefore unavailable for the accused.
True it is that some complainants made allegations in a relatively timely way and the accused was spoken to or interviewed by the police at various times. Charges were however not laid until 2014, and the accused gave evidence that so far as he was concerned, ‘matters were closed’ when such matters were not proceeded with at the earlier times, and that accordingly there was no need for him to retain material or keep events in his mind. The accused gave the example of a DPP letter he would have received around the year 2000 informing him that certain matters were not being proceeded with. In such circumstances it is understandable that, as the accused said in evidence, he made no special effort to retain the letter and no longer has it. Accordingly it is important to bear in mind that the applicable forensic disadvantage is not diminished by the fact that some matters were raised with the accused at the time of such events or shortly after.
These are but some of the examples in this case of the obvious forensic disadvantage that will and does attach where, as here, matters are brought to trial many years later. The court has regard to the fact that the principle of forensic disadvantage applies to each and every one of the charges the accused faces, and the court must and does take that plain forensic disadvantage into account when scrutinising the evidence for the prosecution and must and does take them into account when assessing whether the prosecution has proved its case against the accused. It requires that the prosecution evidence should be carefully and closely scrutinised with this principle squarely in mind.
The principle also dictates that conversely, allowances must be made, and the principle clearly borne in mind in the accused’s favour, when considering the accused’s evidence and any case advanced by the defence. The court has done that.
Discreditable conduct evidence
In October 2015 the prosecution filed a notice that it intended to adduce discreditable conduct evidence. Nothing was filed in response. Accordingly, as at the commencement of trial no pre-trial ruling on such material had become necessary.[10]
[10] R v C, G [2013] SASFC 83, R v C [2013] SASFC 137.
Part way through the prosecution opening, defence counsel indicated to the court that there was in fact an objection to the proposed evidence.[11] Discussion ensued.
[11] T30-32.
The prosecution indicated they would amend their notice. The prosecution briefly outlined the amended purpose in opening.[12] The defence agreed to file a notice, as required by the Rules, setting out the grounds of any objection.[13] A formal amended notice of intention to adduce discreditable conduct evidence and a formal defence response were both filed the following day.[14]
[12] T48-51.
[13] T52-53, 72-76.
[14] 3 August 2016. See amended prosecution notice filed 3 August 2016 and defence response dated 3 August 2016.
After the notices were filed, defence counsel indicated it was her preference that the evidence be given first, then ruled on at the conclusion of all the evidence in the trial.[15]
[15] T132-133.
I set out the notice as amended and the defence response.
Notice
The Director of Public Prosecutions intends at trial to seek to adduce evidence of discreditable conduct in relation to Graham Thomas CHRISTOPHERS (CHRISTOPHERS).
Particulars of evidence of conduct
A.In respect of the first item of discreditable conduct:
A1.The nature of the discreditable conduct is alleged sexual offending against JO, comprising of:
1.Evidence of an act of indecent assault committed by CHRISTOPHERS against JO between 30 November 1987 and 1 January 1989; namely placing a hose inside the bathers of JO, causing water to enter her vagina, while she was at CHRISTOPHERS residence at Semaphore Park. CHRISTOPHERS proceeded to directly ask JO if it felt good. (This being the charged conduct relating to Count 1 on the Information for DCCRM 15-1579).
2.Evidence of CHRISTOPHERS peering through the bathroom window while JO was taking a bath at his residence at Semaphore Park
A2.The witness from whom the evidence is to be led, whether in examination-in-chief or in cross-examination, is JO.
A3….
1. ….
A4The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 2 (Persistent Sexual Exploitation of a Child in relation to the Complainant PO) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by PO.
A5The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 3 (Indecent Assault in relation to the Complainant PO) is:
1.….
2.….
3.….
4.….
5. Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
6. To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by PO.
A6The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 4 (Unlawful Sexual Intercourse in relation to the Complainant EM) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by EM
A7.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 5 (Unlawful Sexual Intercourse with a Person Under 12 Years in relation to the Complainant HD) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by HD.
A8.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 6 (Unlawful Sexual Intercourse with a Person Under 12 Years in relation to the Complainant BC) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by BC
B. In respect of the first item of discreditable conduct:
B1.The nature of the discreditable conduct is alleged sexual offending against PO, comprising of:
1.Evidence of an act of persistent sexual exploitation of a child committed by CHRISTOPHERS against PO between 30 November 1987 and 1 January 1989; namely rubbing the outside of PO’s vagina underneath her underpants while she was at CHRISTOPHERS residence at Semaphore Park.
2.Evidence of CHRISTOPHERS rubbing PO’s vagina and placing Bertie Beetle chocolates inside her underpants on a number of occasions over the course of a few weeks.
3.Evidence of an act of indecent assault committed by CHRISTOPHERS against PO between 30 November 1987 and 1 January 1989; namely placing a hose inside the bathers of PO while she was at CHRISTOPHERS residence at Semaphore Park.
B2.The witness from whom the evidence is to be led, whether in examination-in-chief or in cross-examination, is PO.
B3.The use of the evidence set out in B1.2 and B1.3 and said to be permissible under section 34P(2)(b) in respect of count 2 (Persistent Sexual Exploitation of a Child in relation to the Complainant PO) is:
1.To prove CHRISTOPHERS had a sexual interest towards PO and a proclivity to act in furtherance of that sexual interest.
2.….
B4.The use of the evidence set out in B1.1 and B1.2 and said to be permissible under section 34P(2)(b) in respect of count 3 (Indecent Assault in relation to the Complainant PO) is:
1.To prove CHRISTOPHERS had a sexual interest towards PO and a proclivity to act in furtherance of that sexual interest.
B5.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 1 (Indecent assault in relation to the complainant JO) is:
1.….
2.….
3.….
4.….
5.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint
6.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by JO
B6.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 4 (Unlawful Sexual Intercourse with a Person Under 12 Years in relation to the Complainant EM) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by EM.
B7.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 5 (Unlawful Sexual Intercourse with a Person Under 12 Years in relation to the Complainant HD) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by HD.
B8. The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 6 (Unlawful Sexual Intercourse with a Person Under 12 Years in relation to the Complainant BC) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by BC.
C. In respect of the first item of discreditable conduct:
C1.The nature of the discreditable conduct is alleged sexual offending against EM, comprising of:
1.Evidence of an act of unlawful sexual intercourse with a person under 12 years committed by CHRISTOPHERS against EM between 29 April 1991 and 5 May 1991; namely tickling the outside of EM’s vagina, over the outside of her underwear, and then putting his fingers inside her labia majora while she was in CHRISTOPHERS’ lounge room at his residence at Semaphore Park. CHRISTOPHERS repeatedly asked EM if she liked what he was doing to which she replied ‘no’. (This being the charged conduct relating to Count 4 on the Information for DCCRM 15-1579).
2.Evidence of CHRISTOPHERS placing EM’s hand on his erect penis, over the outside of his pants, and forcing her hand to rub while in his lounge room at Semaphore Park. CHRSITOPHERS asked EM if she liked it and EM said ‘no.’ CHRISTOPHERS then sat up on his knees and unzipped his fly and belt.
C2.The witness from whom the evidence is to be led, whether in examination-in-chief or in cross-examination, is EM.
C3.….
1.….
C4. The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 1 (Indecent Assault in relation to the Complainant JO) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by JO.
C5.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 2 (Persistent Sexual Exploitation of a Child in relation to the Complainant PO) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by PO.
C6.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 3 (Indecent Assault in relation to the Complainant PO) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by PO
C7.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 5 (Unlawful Sexual Intercourse with a Person Under 12 Years in relation to the Complainant HD) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by HD.
C8.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 6 (Unlawful Sexual Intercourse in relation to the Complainant BC) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by BC.
D. In respect of the first item of discreditable conduct:
D1.The nature of the discreditable conduct is alleged sexual offending against HD, comprising of:
1.Evidence of an act of unlawful sexual intercourse with a person under 12 years committed by CHRISTOPHERS against HD between 15 February 1993 and 14 February 1994; namely placing his hand down the front of HD’s pyjama pants and rubbing her vagina in an up and down motion, over her clitoris and the surrounding area, while she was asleep on a camping trip at Mannum with the CHRISTOPHERS.
2.Evidence of a person’s head peering through the bathroom window while HD was taking a shower at CHRISTOPHERS’ residence at Semaphore Park.
D2.The witness from whom the evidence is to be led, whether in examination-in-chief or in cross-examination, is HD.
D3.….
1.…
D4.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 1 (Indecent assault in relation to the complainant JO) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by JO.
D5.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 2 (Persistent Sexual Exploitation of a Child in relation to the complainant PO) is:
1.….
2.….
3.….
4.To prove an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by PO.
D6. The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 3 (Indecent Assault in relation to the complainant PO) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by PO.
D7.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 4 (Unlawful Sexual Intercourse with a Person Under 12 Years in relation to the Complainant EM is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by EM.
D8. The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 6 (Unlawful Sexual Intercourse with a Person Under 12 Years in relation to the Complainant BC) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by BC.
E. In respect of the first item of discreditable conduct:
E1.The nature of the discreditable conduct is alleged sexual offending against BC, comprising of:
1.Evidence of an act of unlawful sexual intercourse with a person under 12 years committed by CHRISTOPHERS against BC between 31 December 2001 and 1 January 2003; namely twice inserting what felt like a stick into BC’s vagina while she was lying in bed at his residence at Goolwa. After doing so CHRISTOPHERS appeared to sniff his fingers.
2.Evidence of CHRISTOPHERS repeatedly coming into the bathroom while BC was taking a bath at CHRISTOPHERS’ residence at Goolwa.
3.Evidence of CHRISTOPHERS moving BC’s underpants to examine her vagina when sitting on his lap watching television.
E2.The witness from whom the evidence is to be led, whether in examination-in-chief or in cross-examination, is BC.
E3.The use of the evidence set out in E1.2 and said to be permissible under section 34P(2)(b) in respect of count 6 (Unlawful Sexual Intercourse in relation to the Complainant BC is:
1.To prove CHRISTOPHERS had a sexual interest towards BC and a proclivity to act in furtherance of that sexual interest.
E4.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 1 (Indecent assault in relation to the complainant JO) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by JO.
E5.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 2 (Persistent Sexual Exploitation of a Child in relation to the Complainant PO) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by PO.
E6.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 3 (Indecent Assault in relation to the Complainant PO) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by PO.
E7.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 4 (Unlawful Sexual Intercourse in relation to the Complainant EM) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by EM.
E8.The use of the evidence said to be permissible under section 34P(2)(b) in respect of count 5 (Unlawful Sexual Intercourse with a Person Under 12 Years in relation to the Complainant HD) is:
1.….
2.….
3.….
4.Evidence of an underlying unity or system of behaviour on CHRISTOPHERS part, which strongly excludes the possibility that each of the complainants concocted their complaint.
5.To rebut or exclude the possibility of mistake, fabrication or concoction of the complaint made by HD.
Action required
If you wish to object to the admission of the evidence of discreditable conduct proposed to be adduced by the Director of Public Prosecutions you must, within 28 calendar days after the filing of this Notice, file in the Court and serve on all other parties to the proceeding a Notice using form 17 which sets out the grounds of your objection.
Date:
(signed) ...........................…………………………….……Director of Public Prosecutions
Note
This Notice must be filed in the Court and served on all other parties to the proceedings within 21 calendar days after the date on which proceeding is listed for trial.
The defence responded in the following terms;
Notice
TAKE NOTICE that Graham Christophers will object to the evidence of discreditable conduct to which objection is taken is all that is contained within the newly prepared document on 2 August 2016.
Grounds
The grounds of objection are as follows:
1.The evidence of the charged acts and uncharged acts are disputed and need to be established beyond reasonable doubt double before the uses the Crown suggests can be made of the evidence can be made;
2.The defence position is that the evidence does not amount to an underlying unity or system of behaviour and this can only be determined once the evidence has been given by the various witnesses and the evidence can be considered as a whole.
3.The potential uses of the proposed reasoning outlined in the Crown’s discreditable should be revisited later in the trial and form the subject of argument then if necessary. Depending on the way the evidence develops the proposed uses may well be permissible defence do not and cannot concede that at the moment.
Date: 3 August 2016
(signed) …………………………………..
Counsel for the defendantAs indicated, the evidence of JO as to count 1 and as to the accused allegedly looking through the bathroom window at JO taking a bath is said to be discreditable conduct relevant to the offending against each of the other complainants (as set out in the notice) as displaying an underlying unity or system of behaviour on the accused’s part which strongly excludes the possibility that each of the complainants concocted their complaint, and which rebuts or excludes the possibility of mistake, fabrication or concoction by those other complainants.
The evidence of PO as to counts 2 and 3 and as to the accused placing Bertie Beetle chocolates down her underwear and rubbing her vagina on uncharged occasions is said to be discreditable conduct relevant to the offending against each of the other complainants (as set out in the notice) as displaying an underlying unity or system of behaviour on the accused’s part which strongly excludes the possibility that each of the complainants concocted their complaint, and which rebuts or excludes the possibility of mistake, fabrication or concoction by those other complainants.
The evidence of PO as to count 2 and as to the accused’s particularised uncharged sexual conduct towards her is said to be discreditable conduct relevant to count 3 to prove the accused had a sexual interest towards PO and a proclivity to act in furtherance of that sexual interest. Similarly, the evidence of PO as to count 3 and as to the accused’s particularised uncharged sexual conduct towards her is said to be discreditable conduct relevant to count 2 to prove the accused had a sexual interest towards PO and a proclivity to act in furtherance of that sexual interest.
The evidence of EM as to the sexual offending against her comprising counts 4, 5 and 6 is said to be discreditable conduct relevant to the offending against each of the other complainants (as set out in the notice) as displaying an underlying unity or system of behaviour on the accused’s part which strongly excludes the possibility that each of the complainants concocted their complaint, and which rebuts or excludes the possibility of mistake, fabrication or concoction by those other complainants.
The evidence of HD as to the sexual offending against her comprising count 7 together with evidence that the accused looked through the bathroom window while she was having a shower is said to be discreditable conduct relevant to the offending against each of the other complainants (as set out in the notice) as displaying an underlying unity or system of behaviour on the accused’s part which strongly excludes the possibility that each of the complainants concocted their complaint, and which rebuts or excludes the possibility of mistake, fabrication or concoction by those other complainants.
The evidence of BC as to the sexual offending against her comprising count 8, and as to the accused coming into the bathroom while she was taking a bath, and as to the accused on a number of occasions moving her underpants aside to examine her vagina is said to be discreditable conduct relevant to the offending against each of the other complainants (as set out in the notice) as displaying an underlying unity or system of behaviour on the accused’s part which strongly excludes the possibility that each of the complainants concocted their complaint, and which rebuts or excludes the possibility of mistake, fabrication or concoction by those other complainants.
The evidence of BC as the accused’s particularised uncharged sexual conduct towards her namely coming into the bathroom while she was having a bath and on a number of occasions moving BC’s underpants aside to examine her vagina is said to be discreditable conduct relevant to count 8 to prove the accused had a sexual interest towards her and a proclivity to act in furtherance of that sexual interest.
The primary elements of underlying unity or system of behaviour submitted by the prosecution were that;
·The offences were all opportunistic and facilitated using opportunities created through family and social relationships;
·The offences were committed against each of the complainants, each young female children, when the accused was acting in loco parentis;
·The acts were brazen, impulsive and in circumstances where the risk of discovery was real. Much of the offending was committed ‘in plain view’, within a short distance of other family members; and
·The offences primarily involved the complainants’ vaginas being digitally rubbed or touched by hand held garden hose.
The court has regard to the provisions of the legislation.
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
I apply the statutory criteria and the consequent trial directions.
In relation to the discreditable conduct evidence as above particularised, that constitutes evidence said to be cross admissible on the basis that it displays an underlying unity or system of behaviour on the accused’s part which strongly excludes the possibility that each of the complainants concocted their complaint, and which rebuts or excludes the possibility of mistake, fabrication or concoction by those other complainants. In the court’s view that evidence does satisfy the test for admissibility set out in section 34P in that the probative value of such evidence substantially outweighs any prejudicial effect it may have on the defendant. It has in the court’s view strong probative weight, and particularly as this is a trial by judge alone where the court is vigilant to dismiss prejudice from the adjudicative process, the prejudice is negligible if any. The court will be vigilant to ensure that the permissible use will be kept separate and distinct from any impermissible use so as to remove any appreciable risk of the evidence being used for any impermissible purpose as also required by the section. In any event, even were this a jury trial, in my view the statutory test is met.
In relation to the discreditable conduct evidence as above particularised said to be discreditable conduct relevant to counts 2 and 3, sought to be led to prove that the accused had a sexual interest towards PO and a proclivity to act in furtherance of that sexual interest, this evidence is sought to be led for a particular permissible propensity purpose per section 34P(2)(b). That purpose is to prove that because of that suggested sexual interest and suggested proclivity to act upon it, the accused gave vent to that interest and proclivity on the charged occasion to offend against PO. In the case of evidence advanced for this purpose, not only does the probative weight for the permissible purpose have to substantially outweigh any prejudicial effect it may have on the defendant but the evidence must also have strong probative value having regard to the particular issue or issues arising at trial. The proposed discreditable conduct evidence advanced in respect of counts 2 and 3 is evidence of very specific, time relevant, focussed and highly sexualised conduct, and relating directly and only to PO. If proven, it is capable of indicating a strong and immediate sexual interest in PO. The court will be vigilant to ensure that the permissible use will be kept separate and distinct from any impermissible use so as to remove any appreciable risk of the evidence being used for any impermissible purpose. The court will disregard any prejudice. In the totality of the circumstances, in the court’s view the statutory test is satisfied.
In relation to the discreditable conduct evidence as above particularised said to be discreditable conduct relevant to count 8 to prove the accused had a sexual interest towards BC and a proclivity to act in furtherance of that sexual interest, the evidence was in two categories.
Firstly, evidence that the accused came into the bathroom while BC was being bathed, secondly evidence that the accused would regularly push BC’s underpants aside and look at her vagina.
In relation to the evidence of the accused coming into the bathroom while BC was having a bath, the evidence as eventually led amounted to a single occasion when the accused came into the bathroom unannounced, which objectively could have been a mistake or innocuous.[16] As such, it did not have much probative weight, although conversely it accordingly had little or no prejudicial value. In the court’s view the statutory test is not met, hence the evidence will not be admitted for the purpose of constituting discreditable conduct evidence, and will be entirely disregarded.
[16] T401.
The second category of material is the evidence that the accused would regularly push BC’s underpants aside and look at her vagina. That is evidence of very specific, time relevant, focussed and highly sexualised conduct, relating directly and only to BC, which if proven is capable of indicating a strong and immediate sexual interest in her. Addressing the tests articulated in section 34P, this evidence is sought to be led for a particular permissible propensity purpose per section 34P(2)(b), namely that because of that suggested immediate sexual interest and suggested proclivity to act upon it, the accused gave vent to that interest and proclivity on the charged occasion to offend against BC. As earlier mentioned, in the case of evidence advanced for this purpose, not only does the probative weight for the permissible purpose have to substantially outweigh any prejudicial effect it may have on the defendant but the evidence must also have strong probative value having regard to the particular issue or issues arising at trial. In the final analysis, in my view the tests are satisfied. It has strong probative value as to the issue arising at trial of whether the accused did offend against BC as alleged, and the probative weight substantially outweighs any prejudicial effect. The court will be vigilant to ensure that the permissible use will be kept separate and distinct from any impermissible use so as to remove any appreciable risk of the evidence being used for any impermissible purpose as also required by the section. I repeat that the court will dismiss any prejudice from its mind, but that even were this a jury trial, the test is met.
In the context of discreditable conduct evidence the court must and will be vigilant not to reason in any impermissible way, and to limit the use of all or any evidence of discreditable conduct strictly to the limited permissible purpose for which it has been admitted as articulated above. For example, the court must not reason that on the basis of any such material that the accused is a bad person, or has a general proclivity or likelihood to offend in this or any other way. Nor may the court reason that simply by virtue of such material the accused must be guilty of any charged offence, nor that because he might be guilty of some uncharged offence he must or might be guilty of one or more of the charged offences. The accused can only be convicted of a charged offence, and can only be convicted of such a charged offence on the basis of admissible evidence proving each and every element of that particular charged offence proven beyond reasonable doubt.
At various stages during the trial witnesses for the prosecution were cross examined as to other complaints made by them or made by others about the accused. The defence also led some evidence to this effect from the accused. This evidence was elicited or led by defence counsel for the purposes of testing and questioning the credibility and motives of certain complainants to make or pursue or allegedly fabricate complaints against the accused. The court has had full regard to the evidence in terms of the defence’s submissions concerning the ways in which that evidence was relevant to the defence. The court has not used any of that material in any other way, and in particular has not used it as discreditable conduct evidence or regarded it as in any way whatsoever probative of or suggestive of guilt in any way.
The accused’s statements to the police
In opening, the prosecution took the unusual course of indicating that the accused had been interviewed on a number of occasions through the years, however that the prosecution had indicated to the defence it was prepared to tender all or any of those interviews as the defence would wish, and would be entirely guided by the defence as to this.[17]
[17] T44-45.
The defence indicated as the trial progressed that it did not wish any of the accused’s interviews tendered, and in accordance with the defence’s preference, the prosecution tendered none of the accused’s interviews.
In the course of the accused’s evidence, the accused gave evidence that successive statements made by at least one complainant, as put to the accused in the course of police interviews, had radically changed over time, particularly in the case of complainant BC. At that, the prosecution sought to put BC’s several statements to the accused. Counsel for the accused objected, and the application was eventually not pursued in the face of the defence objection.
It was common ground however that the accused had at various stages been interviewed about some of the allegations, had denied any allegations of sexual misconduct or offending put to him, and it was an agreed fact that no admissions had been made by the accused to the police at any time in respect of any complainant.[18]
[18] See variously throughout the trial, also per the accused’s evidence, and see also agreed fact #11 in document marked D37.
In the course of the trial the accused gave evidence that when ultimately arrested by police he at that stage declined to answer questions. He was fully entitled to exercise his legal right to do so, and there can be no adverse inference whatsoever in an accused exercising a right that the law plainly entitles him to exercise.
The court has regard to the fact that the accused has at all times maintained his innocence. The court has regard to that fact in the accused’s favour.
Evidence of complaint
Evidence of complaint was led at trial. It was admitted for the limited and specific purposes set out in section 34M of the Evidence Act 1929. In brief, those purposes are limited to, firstly providing evidence as to how the allegation first came to light. Secondly, as to whether the making of the complaint demonstrates consistency of conduct on the part of the complainant. Consistency of conduct includes both the consistency in making the complaint when it would be expected to be made and consistency between the wording of the complaint and the conduct alleged.[19]
[19] R v J,JA [2009] SASC 401 at [95].
Importantly however, the evidence of the initial complaint, and any elaboration of it (if that applies) is not before the court to demonstrate the truth of what was reported.
The court has closely considered the evidence of complaint in each instance, and has had regard to it only for the limited permissible purpose allowed by law.
The prosecution case
The case ran for over 30 days of hearing, and was adjourned primarily at the request of the defence on a number of occasions.
In light of the importance of closely scrutinising the evidence, the court carefully considered the evidence given at the time, and has subsequently read and re-read it in considering the case. Also for that reason, the court will set out the evidence in somewhat more detail than would ordinarily be the case. In some attempt at managing the length of this judgement it will however not all be set out, though it has all been closely considered.
Witness - complainant JO – count 1
The first witness was JO. She is the complainant in relation to count 1 in the information. At the time of giving evidence, she was 36 years old.
JO gave evidence that her father is now deceased and that her mother is the accused’s wife’s sister, meaning that the accused is her uncle by marriage. Her mother is now quite unwell.
JO described her family circumstances. She recalled the accused and his wife living in Semaphore. Photos of the accused’s then premises at 22 Gordon Street Semaphore were tendered by consent,[20] as was a floor plan of the house drawn up by JO.[21]
[20] Exhibit P1.
[21] Exhibit P2.
JO was asked whether she could recall any incident involving the accused and the children’s pool in the back yard of the accused’s house. She said she could recall an event prior to the family having gone interstate to Queensland, the very first time she met the accused. Although she said she could not exactly recall her age, she gave a range of five or six years of age. She said her sister PO was there at the premises, as were her parents, the accused and his wife.[22]
[22] T61.
JO gave evidence that while at the premises, the accused took her and her sister PO outside to fill up the ‘kiddy pool’. She described what happened in the following terms.
Q.Tell us in your own words please what you do remember happening.
A.I remember that the pool was being filled up with the hose and that Patricia and I were, you know, invited to get into the pool while the water was still running and that -
Q.Who else was around.
A.Only PO, myself and Uncle Graham, who was in charge of the hose.
Q.Was this a garden hose.
A.Yes.
Q.You say it was running.
A.Yes.
Q.Can you actually remember what the weather was like at this time.
A.Fine.
Q.You have indicated you were told to bring your bathers, did you have your bathers on at this point.
A.Yes.
Q.Did PO have her bathers on.
A.Yes.
Q.If you can remember, what sort of bathers did you have.
A.A one-piece bathing suit, but I can't remember any more details.
Q.Again please in your own words, tell his Honour what happened.
A.So the water was running and PO and I were in the pool and Uncle Graham was getting quite close to us, and he started to - I can't remember if it was PO or myself first, but I can remember that he got the hose and he put it into my bathers, yeah, and the water was going inside my vagina.
Q.How did he put the hose inside your bathers, as precisely as possible.
HIS HONOUR
Q.I think what Mr Norman is wanting is for you to take it step by step and try to think back in as much detail as you can and how did all that happen and take it step by step.
A.By pulling the bathers in the crotch area to the side and then just directly putting the hose in underneath the bathers.
XN
Q.Were you sitting or standing when he did this.
A.Standing.
Q.Where was PO.
A.In the pool with me.
Q.You talked about the accused taking hold of your bathers, did you say in the area of the crotch.
A.Yes.
Q.If you are able to, what part of the crotch, if you can say.
A.Just directly between the legs in the area covering the vagina area.
Q.Can you remember if he used one hand or two hands to do that.
A.One.
Q.You have indicated he put the hose, the running hose, into the area of your crotch and next to your vagina; is that right.
A.That is correct.
Q.How long did he do that for.
A.A minute maybe. Two minutes. I don't remember exactly.
Q.Do you remember anything being said by the accused when he did this.
A.Yes. I remember him asking if it felt good.
Q.If you are able to, in what tone did he ask you if it felt good.
A.Just as in - as if he was just directly asking a question as if it was - it was as if he was asking a reasonable question.
Q.Can you remember what you felt about what your uncle was doing.
A.Yeah, I remember giggling, thinking it was naughty. You know, it was tickling. So, you know, it felt funny. You know, it seemed like cheeky behaviour.
Q.Do you remember anything else about that incident now.
A.I do remember that when he asked if it did feel good that I had responded and, you know, let him know that it did.
Q.Did you use the word 'tickling'.
A.Yes.
Q.Is that what you mean when you say that you agree it felt good.
A.Yes.
Q.What part of your body was it tickling.
A.My vagina.
Q.Was it tickling your vagina when he asked you if it felt good.
A.Yes.
JO gave evidence that something also happened to her sister PO on that occasion:
Q.You've indicated PO was standing next to you when this happened.
A.Yes.
Q.You've indicated that you are not sure, to use your words, whether he did it to PO first or after you; is that right.
A.Yes.
Q.Tell us please what, if anything, he did to PO.
A.Moved the bathers to the side in the same way that he did with me and then put the hose into her bathers.
Q.Was it the same place in the bathers, that is by the crotch.
A.Yes.
Q.Is the hose still running when he did it to PO.
A.Yes.
Q.Are you able to remember now how long he did it to PO for.
A.A couple of minutes.
Q.Do you recall, if you don't please just say so, whether he said anything to PO when he was doing it to her.
A.I don't remember.
HIS HONOUR
Q.When the hose was there did he have the bathers in one hand again and the hose in the other hand.
A.Yes.
Q.Where was the hose pointing and how far away was the hose part from the vagina.
A.Well the hose was at least touching the vagina, if not inside a little bit because the water was like directly rushing inside of my vagina.
Q.So it was sort of almost on your vagina such as to point the water inside; is that right.
A.Yes, or it could have even been slightly in the vagina.
Q.That was the case with you, was it.
A.Yes.
Q.How was it with your sister; was it the same or different.
A.I didn't see closely enough to see how far the hose was. I just could see he was - had the hose in under her bathers and I couldn't say where - how far the hose was inside of her.
Q.Was the water from the hose hitting her vagina.
A.Well, yes, because - yeah, because the water was running out. It was underneath the bathers and, yeah, it was.
JO then explained that she only talked about the events with her sister, and explained why she did not tell her parents.
Q.Did you tell anybody else about that hose incident thereafter.
A.Only PO and I discussed it but nobody else.
Q.Can you remember when you discussed that.
A.We discussed it later on that day or very shortly after the incident. I believe it would have been on that day.
Q.How did you, I mean you rather than your sister, feel about what had happened later that day.
A.We thought that Uncle Graham was cool and he was naughty because my dad was very strict and we decided not to tell dad because we knew dad wouldn't approve of it.
Q.For as much as it matters why would your father not approve.
A.Because we didn't know what the behaviour that Uncle Graham was doing, we didn't understand that. When PO and I used to pull our underwear up our bum and pretend we were wearing a G-string he used to say we were wicked.
HIS HONOUR
Q.Who would say that.
A.My dad. So we wouldn't have been game to tell him what uncle Graham did because we would have known he would be angry.
XN
Q.I don't want to labour this, but was your father a strict man.
A.He was a strict man and he was also 68 years old when I was born, so he was older so he was very repressed especially when it came to things of a sexual nature. We weren't allowed to watch anything on TV, even people kissing.
HIS HONOUR
Q.When he would say 'wicked' that wasn't in a joking way, it was a disapproving way.
A.No. He would say 'You girls are wicked'. He was a very good man but when it came to that he had no tolerance.
Q.Sometimes wicked is used by young people as a good thing but you don't mean that.
A.No, he meant you are wicked, you will go to hell for doing that, the old school Catholic thinking.
XN
Q.Carry on.
A.We just decided and talked about the fact we would never tell anybody.
JO then gave evidence of another event involving the accused. It occurred the first time she visited them after her family returned from interstate to live on the Murray. She was about the age of 8 at that time. She and her sister PO were staying over at the accused’s house at the request of her parents. She said that when it was time to have a bath she recalls she was told she could not have it with her sister. After a time in the bath, she saw a man looking through the bathroom window at her. She described the event, and why she thought it was the accused, in the following terms:
A.When I was in the bath, I was in there for a while and then I can remember looking up at the window and there was a man looking in the window and I was very scared. He had his face pressed right up against the glass, very close and I called urgently for aunty Carol 'Help, help, there is somebody looking in the window'. Aunty Carol came in and she - I told her what had happened and she walked - lent over to the curtain or blind and she pulled it across and said 'What can he do? He can't do anything'. Or something along those lines.
XN
Q.You indicated he closed the curtains and said something to the effect of 'What can he do?'
A.Yes.
Q.Did she make any attempt to go outside and see who it was or anything of the sort.
A.No. Even as a young child it struck me as odd and I was, to myself, I just thought 'Okay, that's weird that she doesn't want to investigate this because there is somebody out there looking in the window.'
Q.The man you saw, can you describe at the time what you saw please.
A.Prying eyes just flat up against the glass just looking in that didn't - yeah, didn't look straight away from me. Just looking, even when you looked up and then, yeah.
Q.Was the window clear or frosted in any way, if you can recall.
A.Well, I've seen the map of the house and everything now so I know it was frosted. I didn't know - I tried to think that over and I wasn't sure about that. His face was very closely pressed against it so, if that makes sense.
Q.You say at the time you saw this man's face closely pressed against the window, did you recognise the face there and then.
A.No, I was trying to piece together who it was especially after aunty Carol hadn't been concerned about it.
Q.Did you ever recognise the face at a later stage.
A.Yes.
Q.When and how, please.
A.When I saw uncle Graham out in the kitchen or lounge dining area, living area, later that day and he looked straight at me and I just knew 'Okay, yep, that is who it was'. Because he looked at me exactly the same way as he looked at me through the window.
Q.At that time were there any other males staying in the house.
A.No.
She went on to say that the following day she noticed bricks piled on top of one another outside the bathroom window, and she thought to herself that is how the person was able to look in the window.[23]
[23] T72.
JO went on to say that apart from discussions about the hose incident, her sister PO also told her that the accused had touched her sexually. She said it was a good couple of years later. She said they were at home in the front room of their house. Also present were two other named children. JO noticed that PO was touching herself on the vagina whereupon one of the other children told PO ‘Don’t do that’, to which PO replied ‘Why not, Uncle Graham does’.[24] PO then told JO that the accused had ‘…given her chocolate bars, used them to put in and around her vagina and she’d been allowed to eat them afterwards. She had Mars Bars, Bertie Beetles. He nicknamed her vagina ‘Minnie’ because she wore Minnie Mouse underwear, that he would have her sit on his lap while Auntie Carol was cooking dinner in the next room and he would inappropriately, again, touch her and do things of a sexual nature’.[25]
[24] T78.
[25] T79.
JO said that PO may have said something else about the abuse, but that she could not now remember it.[26]
[26] T80.
JO said she did not know, nor had she had any contact with, EM, HD or BC (the other three complainants).[27]
[27] T81.
JO was then extensively cross examined by counsel for the accused. The cross examination tested her as to the alleged events, her memory in general, and in relation to the relevant premises, the visits, dates, and times. I do not set it all out however I have had regard to it all.
JO was cross examined about whether there was a time when she went to the beach from the accused’s place. She said that it was possible that she also went to the beach with the accused and others but that she did not remember going to the beach, nor indeed some other occasion where she had been to the beach and sand was being washed off her.[28]
[28] T89-90.
In relation to the window incident she agreed in cross examination that in a statement to police she described the bathroom window as small and clear. After saying that she thought it was clear, in light of the fact that on a recent plan it was described as frosted glass, she said it might be possible that it was but that the face was pressed right up against it, or that it was originally clear but had been changed to frosted in the years since.[29] She agreed that on 1 July 2016 she told police that she was initially unsure whether the window was clear but thought it was. She said she could not now be 100% sure either way.[30] She said she knew what louvres were, and did not recall louvres being on the window.[31] She denied that the bathroom window at the time comprised a wooden frame on the outside of louvre windows set out from the window, with a fly screen over it, or that there was also a green shade-cloth covering the window.[32]
[29] T91-92.
[30] T93.
[31] T101.
[32] T101102.
JO repeated her description of the bathroom window events, and denied that she could be mistaken that it was a man at the window, or mistaken that the man was the accused.[33]
[33] T99-102.
JO said that she felt the bathroom window event occurred at night time, perhaps just previous to dinnertime, night to early evening, but she was not sure about how light or dark it was.[34]
[34] T92-93.
JO was extensively cross examined about the hose-in-the-pool event.[35] She repeated her account of it. She said that the accused held the hose in one hand and pulled out her bathers next to her crotch to use the hose, and had a complete memory of the hose touching her vagina. She said she was not sure how far it went, but it went at least partially into her vagina, indicating that the hose and the water were inside her bathers touching her vagina with the water and at least some part of the hose going inside her vagina.[36]
[35] T103-123.
[36] T105.
JO agreed that in a police statement dated 5 November 2014, referring to the hose, the words ‘it didn’t go in though’ are used. She explained that she gave her statement at her house, with her children at home, in rushed circumstances towards the end, and that she did not really go through the statement with a fine toothcomb at the time. When she later read the resulting statement she felt the officer had put down their interpretation of what she was saying. She said she had been attempting to say to the police in answer to their question ‘did it go in’ that no, the hose did not go ‘right in’ to her vagina. She said she might have expressed it in the wrong way to the police officer because she was thinking more about deep penetration. She said that she picked up on it at a later time, when she next read that statement. She said that when she read it she did not feel comfortable with the section of the statement about the hose not going in, because her recollection was that it may have gone in somewhat, and so she gave an amended statement.
At that, defence counsel put to JO and she agreed that she had given police a further statement on 29 May 2015 in which she is recorded as having said ‘I spoke about an incident in the kiddie pool at Carol and Graham’s house. I initially said that the hose didn’t go into my vagina but I’m not actually sure that it did or not, the water definitely did and I remember feeling things happen down there.’[37]
[37] T113.
Defence counsel then took JO to a record of her speaking to police, dated 9 November 2014 indicating the following; ‘… the victim states during this time their step-uncle, suspect Graham Christophers, pulled the front of her bathers out and stuck a hose inside her bathers near her vagina whilst the water was coming out the hose and asked her if that felt good’. She was asked for an explanation and she replied; ‘Yes, and the reason for that is because, as I’ve said repeatedly, I’m unsure how far, you know, I wasn’t even able to see so I’m going by feeling, I know the hose was in there, I could see that the hose went in there, it was underneath bathers, I was still in bathers, I can’t tell you how far the hose was in or, you know, whether the water was running and that was going in. I guess I’m a little unclear on the details of that and I’ve given you the best account I can and that explains why it’s hard to put into writing.’
JO was asked whether she thought it was untoward at the time, apart from her evidence about what her father might have thought. She replied: ‘Looking back in retrospect, I can see and even at an older age as a child, I knew what he did was wrong. At the time of being a five or six year old or however old I was, of course not. They didn’t have all the protective behaviours, no-one had ever said “don’t let anyone touch you down there”. Had I known that I would have known it was wrong then.’
She explained her evidence, responses, descriptions and her reasons for those descriptions over many pages of cross examination, which I do not set out in full, but which I have closely considered.[38]
[38] T103-123.
Ms Burgess concluded the topic by putting to JO that the only time the hose went into JO’s bathers was when, after going to and returning from the beach, JO had sand in her bathers so the accused pulled out JO’s bathers and put the hose in, and the sand and the water rushed out the two sides of JO’s bathers.[39] A little later defence counsel put to JO that on another occasion the accused filled up the swimming pool at the rear of the house in JO’s and her sister PO’s presence and squirted them both with the hose.[40]
[39] T123.
[40] T129.
JO was cross examined about a woman by the name of DB, the stepmother of a friend. JO said that a couple of years prior to trial, after JO had come forward to the police, DB had friended her on Facebook. JO denied that DB told JO that the accused had done anything to JO, or encouraged JO to report the matter to the police, or suggested JO might be eligible for criminal compensation. She agreed that after she had come forward to police, DB told JO on Facebook what DB had heard about the accused doing things to other people. She said she had never met DB in person until DB approached her outside of court a day earlier.[41]
[41] T123-125.
JO was cross examined and re-examined about the suggestion to her by defence counsel in cross examination that she had never been separated from her sister, and hence that her sister was never left to stay alone with the accused. JO expressed anguish over the separation and her consequent inability to be there to possibly protect her.[42]
[42] In REXN, see T130-131.
I have had close regard to the entirety of the cross examination.
JO gave evidence clearly and well, and the initial provisional impression given by her as she gave evidence was of a careful, mature woman trying to accurately recall the events of long ago about which she was being questioned.
I refer to the earlier analysis of the handwriting evidence, which for the reasons therein discussed had a number of unsatisfactory elements to it, and at the end of the day had only very limited probative weight in terms of the conclusions expressed therein.
In the final analysis, and after a detailed analysis of the evidence relevant to the issue, having regard to the totality of the evidence as to the letters and generally, including all the issues discussed, and including HD’s sworn evidence on the topic, there is little support for the proposition that the documents purporting to be letters produced in recent days to unrelated family friend Mrs Vincent, provided to Mr McGinn and ultimately tendered, were actually written or sent by HD.
The court accepts beyond reasonable doubt HD’s evidence that she has no recollection of the letters or sending them, and having now read them believes and therefore says that she did not write or send them. If the court is wrong about that such that there is a reasonable possibility she did send them but does now not recall it and mistakenly thinks she therefore did not send them, that does not in the court’s view cast doubt over her other evidence, given the ongoing positive attitude she had to the Christophers at that time, and that hence the letters are not inconsistent with what HD said had happened to her earlier at the hands of the accused.
No initial complaint evidence was ultimately relied upon by the prosecution, and so the court has no regard to evidence on that topic insofar as it relates to the credibility of HD or the guilt of the accused.[456]
[456] Prosecution written address, paragraph 80.
HD had no knowledge of the other complainants JO, PO, EM, nor or DB or GB.
HD was a sensible, basic and matter of fact witness who gave evidence well and consistently over extended cross examination, and in the final analysis, gave evidence credibly and reliably.
BC was the youngest complainant, aged 22 at the time of giving evidence. She gave evidence which formed the basis of count 8, that the accused at his 2002 New Year’s Eve Party where she had gone to bed early after an altercation with two boys, entered the bedroom, massaged her, gave her hot chocolate and ultimately penetrated her with a finger. BC had given evidence that it was her mother who had prevented her complaint from being proceeded with in 2003, so when at the age of 18 she ultimately received a Facebook message from Carol Christophers which BC took to be acknowledging that she was aware of what the accused had done to BC, she was 18 and able to make decisions for herself so contacted police to pursue the matter. From other evidence, this was the genesis of the contemporary investigation which ultimately re-contacted earlier complainants whereby the accused was brought to trial.
BC’s evidence as to the event itself, as to the uncharged conduct including the occasions whereby the accused would periodically move her knickers aside and look at her vagina, and as to the sequelae of the charged event, and the circumstances whereby the matter was revisited, through examination in chief and cross examination, all had a tragic but distinct ring of truth about them. She was consistent about these events throughout her times in the witness box, and her explanations as to her prior statements about events were clear, logical and credible.
The court has closely considered all the possibilities put to BC as to how or why she might have been either mistaken about matters or the identity of persons, or convinced by her mother in relation to making or pursuing the complaint, or discussed with her mother trying to get money from the accused, all of which she clearly and credibly denied. There was no indication in her responses to defence questioning or other evidence that anything like that was at play in BC’s motivation or actions.[457]
[457] This is considered only in the context of the matters raised by the defense with the witness at to her credibility and argued by the defense to affect the witness’ credibility. The court has regard to and applies the full directions earlier articulated that it is not for the accused or the defense to suggest still less prove any motive to lie or fabricate allegations.
BC had never met complainants JO, PO or EM.
The evidence given as to BC’s complaint of what had happened to her school friend ME within a few weeks of returning from the accused’s care, and then shortly afterwards at ME’s insistence elaborating the full story to her mother JEC demonstrates consistency of conduct on the part of the BC in making the complaint as to count 8 at a time when it would well be expected to be made, i.e. firstly to a close school friend, then at that friend’s insistence to one’s own mother. Further, the content of the complaint as recounted to them also demonstrates consistency between the wording of the complaint and the conduct alleged by BC in evidence. I repeat that the evidence of this initial complaint and elaboration thereof is not before the court to demonstrate the truth of what was reported, and I have had regard to the evidence of complaint only as specified in these reasons, and in accordance with all the statutory and other standard directions as to complaint evidence. [458]
[458] R v J,JA [2009] SASC 401. Evidence Act 1929, section 34M.
In the final analysis, BC gave evidence very well, and was a consistent, convincing and ultimately very credible witness.
JEC, HD and BC’s mother gave evidence, ultimately quite well. Whilst she acknowledged the many problems and issues she had earlier in her life and in terms of being a mother to HD and BC, and her recall of those years was on some topics either non-existent or less than that of other witnesses, she was a good witness in the witness box. She explained that with the birth of her youngest child 14 years ago she had given up drugs, turned her life around and was ’14 years clean’. She conceded she lacked knowledge or recall of matters, and admitted poor personal behaviour in the past in a candid and apparently credible way. She was consistent over the course of her evidence. In the end she displayed a convincing candour and frankness, and gave evidence well and apparently credibly.
The accused gave evidence on oath in his own defence, and called other evidence, in particular Mr and Mrs Vincent as to letters that were handed to Mrs Vincent part way through the trial, and from Mr McGinn relating to handwriting analysis. A number of photographs and other documents were also tendered.
The court has considered and re-read the accused’s evidence with care, making full allowance for the age of the matters addressed and the consequent forensic disadvantage an accused naturally has when attempting to give evidence as to events from the past, in some cases the distant past. The court has also taken into account that the accused is of good character and has no previous convictions, and has directed itself as to that issue as required by law.
Unfortunately, the accused was a very poor witness.
Whilst in relation to many of the occasions on which offending allegedly occurred the accused seemed to have a very good memory of the event down to small detail such as what the respective complainant was wearing or as to small details such as where he dropped chocolates or what he bought the complainant for lunch that day, as earlier observed, in general he was a rambling and discursive witness, volunteering matters, volunteering hearsay from his wife and others, appearing to suddenly recall new information when pressed and varying his degree of certainty when pressed, or changing his recall of matters when pressed, or indeed changing his evidence.
There were numerous examples of this throughout the accused’s evidence and cross examination, some only of which are revealed in the summary of his evidence earlier set out, only some of which I now reference.
For example, the accused’s initial evidence about the ‘strict rules’ he and his wife applied in their dealings with members of the opposite sex became quite inconsistent over the course of his evidence as to when they adopted and commenced them, to whom they applied, and much of the accused’s evidence as to his dealings with one or more of the complainants revealed that he did not apply the strict rules he had said he applied strictly, strictly or at all. At one stage he said the rule was never to be alone with a member of the opposite sex. At another stage it was never to be alone without a door being open or within earshot. His evidence about the strictness of the rules and the absolute care he would exhibit with members of the opposite sex also sat very uncomfortably with his evidence, given in different contexts, of how he would tickle visiting children over their bodies, and in one instance how he had a game whereby complainant BC would lie under his desk while he sat at it and he would with his mouth ‘blow raspberries’ onto the soles of her bare feet, and indeed that he placed the hose underneath a complainant’s bathers but only to wash the sand out (in the course of his defence of counts 1 and 2 that a hose incident did occur but was innocent and non-sexual and had been mistakenly interpreted by JO and or PO), that he had dropped chocolate down the pants of another complainant on Christmas Day (in the course of his defence to count 3 that a chocolate down the pants incident did occur but was innocent and had been mistakenly interpreted by PO), and that he went alone into BC’s bedroom every night to pick her up and put her under the blankets again (in the course of his evidence about how BC was a terrible sleeper), and that he had in fact taken EM home alone with him and quite possibly tickled her. He was similarly inconsistent over the genesis of the rule; for example, at one stage the accused gave evidence that the rules stemmed from a church training course they undertook, at another stage he said they decided on the rule as his wife had been sexually abused as a child.
The 1991 video ultimately tendered as a part of the defence case indicated that there was plainly no green and black shadecloth over the bathroom window, which in earlier evidence the accused said he had installed when they had first moved in and which had stayed for many years in support of his position that he could not have peered through the bathroom window at a complainant as alleged.
The accused’s evidence that EM’s father had rung him to say he had to pick EM up as EM had an appointment with a social worker that had seen EM’s behaviour and considered that she showed signs of abuse, was plainly unconvincing, as on everybody’s evidence, EM had been staying at the accused’s house for several days at this time without seeing her father or visiting the hospital. There would be not the slightest reason for suddenly having EM assessed by a social worker up until that point, when the only purpose of the trip to Adelaide and the QEH had been due to the dire emergency occurring with the birth of EM’s brother, whereby everyone’s efforts and attention would have been focussed on that. This evidence by the accused had all the hallmarks of something contrived to throw up the possibility or suspicion that EM had been molested by someone else and now, years later, EM had mistakenly ascribed it to the accused.
The accused’s evidence that after the occasion at the hospital whereby EM had made a complaint against him, from that time on he always made a point of never being alone with EM particularly in light of the allegation was plainly false as moments later he gave evidence that he never saw her again.
The accused’s evidence as to JO at the beach was also unconvincing. When describing how JO had put sand in her bathers at the beach he gave a detailed description of watching her sitting in the shallows, her bathers, her picking up handfuls of sand and pushing them down her bathers, and him telling her not to do so. That was why at a later stage, he said, he had to innocently put the hose down her bathers to wash the sand out. When cross examined in the context of whether he was watching children, and whether he watched JO at the beach, he said it was only ‘a vague recollection, but I wouldn’t swear to it’.
The accused’s evidence was littered with instances where one moment he could remember something, then he couldn’t, and vice versa. Part of his defence to the allegations involving HD was to suggest that HD’s mother had tried to sell HD for $50, which both HD and her mother denied. When giving this evidence, as earlier set out in these reasons, firstly the accused could not remember whether they came to the door, then he thought that was the way it happened, then ‘the story was’ that JEC had tried to sell HD for $50, then the accused said that HD had in fact come to the door and told both the accused and his wife that her mother had tried to sell her for $50. At first he said that there was an agreement that HD stay for 12 months, then said no there was no arrangement and ‘it was open ended.’ After asserting that he had been told that HD’s mother had tried to sell HD for $50, the accused could not then explain why he had done nothing about that and had not notified any authorities.
There were numerous other instances of this kind of evidence.
The accused’s evidence of why DB had decided to undertake her vendetta against him varied dramatically over the accused’s period in the witness box. He initially said it was because of a property dispute surrounding the split between his wife and her former husband GB, and in cross examination added that DB had mental problems. Later he said it was because DB believed he was a paedophile and had assaulted his stepdaughter R. At another stage he said he had no idea what was in her head. The accused said that he knew DB was conducting the campaign against him it due to all manner of anonymous complaints being made to all and sundry, then when put to him that if they were anonymous how did he know who made the complaints, he said that in one instance her voice had been known to someone, so that’s how he knew.
The accused’s evidence that BC’s brother was in possession of pawn tickets, had been caught trying to steal a number of items, and had in fact stolen all wife Carol’s jewellery was illogical, unconvincing and in the end plainly gratuitous. The evidence was combined with the accused claiming that JEC rang him saying that DB had told her if she said the accused had abused her daughter, the accused would have to give her money, denied by JEC. The inference the accused appeared to be seeking be drawn from all this was that HD and BC’s mother would do anything to get money, including have the brother steal from the accused, so perhaps JEC tried to get BC and HD to make false claims so JEC could get money from him. The accused could not credibly explain why, particularly if all his wife’s jewellery had been stolen as he asserted, there was neither a report to the police, or even more obviously, a claim on the house insurance for the stolen jewellery. Regrettably, this evidence had all the hallmarks of a fabrication designed to cast doubt over HD and BC and their mother’s credibility and suggest a motive for HD and BC to have fabricated their allegations.
Unfortunately, in the final analysis, the accused was not a credible or reliable witness.
Factual conclusions
Based on the evidence as discussed, and having carefully considered the entirety of the defence case making allowances for forensic disadvantage and giving it the fullest weight I can, the court finds the evidence of each of the complainants, each of whom at the end of the day was a credible, reliable and convincing witness as to those charged events, proven beyond reasonable doubt.
The court finds the evidence of complaint as described in the “Consideration” section above proven beyond reasonable doubt.
Such is the strength of the complainants’ evidence it has been unnecessary to have regard to either the discreditable conduct evidence or cross admissibility of the evidence as between the charged events to arrive at that conclusion.
For completeness however, I record that the court finds the evidence led as to discreditable conduct proven beyond reasonable doubt, and that such evidence does reveal a sexual interest on the part of the accused in PO and BC and a willingness to act on it, and that the evidence also reveals an underlying unity or system of behaviour on the accused’s part involving opportunistic access to visiting young female children, brazenly conducted, generally involving brief digital vaginally focussed contact, which strongly excludes the possibility that each of the complainants concocted their complaint, and which rebuts or excludes the possibility of mistake, fabrication or concoction by those other complainants.
The Court accepts the evidence of each complainant as to their ages at the relevant time proven beyond reasonable doubt, and accordingly that at the time of the offending each was under 12 years of age.
As to count 1 in the information, the court finds proven beyond reasonable doubt that the accused pulled aside JO’s bathers in the crotch area and inserted the nozzle of a running garden hose beneath them such that the nozzle was at the entrance to JO’s vagina, and ran the hose into JO’s vagina for at least a minute, asking her if it felt good. The court finds it proven beyond reasonable doubt that the accused by those actions intentionally and unlawfully applied force to JO. The application of force was not for any legitimate purpose such as washing or playing with JO, rather it was for a prurient purpose. The court finds it proven beyond reasonable doubt that this pulling aside of bathers at the crotch of a young visiting female of running a hose into her vagina amounted to circumstances of indecency as earlier defined in these reasons and involved a sexual connotation. That conduct was indecent and had a sexual connotation by contemporary standards. The court finds in relation to count 1 that every element of the offence of indecent assault is proven beyond reasonable doubt.
As to count 2 in the information, the court finds proven beyond reasonable doubt that the accused inserted the nozzle of a running garden hose down the leg of PO’s bathers such that the nozzle was at the entrance to PO’s vagina, and ran the hose into PO’s vagina. The court finds it proven beyond reasonable doubt that the accused by those actions intentionally and unlawfully applied force to PO. The application of force was not for any legitimate purpose such as washing or playing with PO, rather it was for a prurient purpose. The court finds it proven beyond reasonable doubt that this conduct with a young visiting female of running a hose into her vagina amounted to circumstances of indecency as earlier defined in these reasons and involved a sexual connotation. That conduct was indecent and had a sexual connotation by contemporary standards. The court finds in relation to count 2 that every element of the offence of indecent assault is proven beyond reasonable doubt.
As to count 3 in the information, the court finds proven beyond reasonable doubt that the accused in the lounge of his house sat PO on his lap, placed a chocolate “Bertie Beetle” chocolate down her pants, put his hand down her pants and started rubbing in an up and down movement on the outside of her vagina, with the Bertie Beetle inferentially to be a reward for PO. The court finds it proven beyond reasonable doubt that the accused by those actions intentionally and unlawfully applied force to JO. The application of force was not for any legitimate purpose such as playing with JO, rather it was for a prurient purpose. The court finds it proven beyond reasonable doubt that this rubbing of PO’s vagina amounted to circumstances of indecency as earlier defined in these reasons and involved a sexual connotation. That conduct was indecent and had a sexual connotation by contemporary standards. The court finds in relation to count 3 that every element of the offence of indecent assault is proven beyond reasonable doubt.
As to count 4, the court finds proven finds proven beyond reasonable doubt that a time when the accused was minding EM for her parents that the accused in the lounge of his house after initially tickling EM, tickled closer and closer to her vagina then rubbed the outside of her vagina for several minutes. The accused held EM preventing her from getting up and told her it was fine and that they were just playing. The court finds it proven beyond reasonable doubt that the accused by those actions intentionally and unlawfully applied force to EM. The application of force was not for any legitimate purpose such as playing with EM, rather it was for a prurient purpose. The court finds it proven beyond reasonable doubt that this rubbing of EM’s vagina amounted to circumstances of indecency as earlier defined in these reasons and involved a sexual connotation. That conduct was indecent and had a sexual connotation by contemporary standards. The court finds in relation to count 4 that every element of the offence of indecent assault is proven beyond reasonable doubt.
As to count 5, the court finds proven beyond reasonable doubt that shortly after the events comprising count 4, in the lounge room of the accused’s house, the accused pulled down EM’s knickers and started rubbing EM’s bare vagina, the accused telling EM that it was OK they were just playing. The court finds it proven beyond reasonable doubt that the accused by those actions intentionally and unlawfully applied force to EM. The application of force was not for any legitimate purpose such as the claimed purpose of playing with EM, rather it was for a prurient purpose. The court finds it proven beyond reasonable doubt that this rubbing of EM’s bare vagina amounted to circumstances of indecency as earlier defined in these reasons and involved a sexual connotation. That conduct was indecent and had a sexual connotation by contemporary standards. The court finds in relation to count 5 that every element of the offence of indecent assault is proven beyond reasonable doubt.
As to count 6, the court finds proven beyond reasonable doubt that on the same occasion of the events comprising counts 4 and 5, in the lounge room of the accused’s house, the accused took EM’s hand and rubbed EM’s hand on his erect penis through his pants, asking her if she liked it, and released EM’s hand when EM said she didn’t like it. The court finds proven beyond reasonable doubt that the accused by these actions intentionally and unlawfully applied force to EM. The application of force was not for any legitimate or lawful purpose, rather it was for a prurient purpose. The court finds it proven beyond reasonable doubt that this taking of EM’s hand and rubbing EM’s hand on his erect penis through his pants, asking her if she liked it, amounted to circumstances of indecency as earlier defined in these reasons and involved the clearest of sexual connotation. That conduct was indecent and had a sexual connotation by contemporary standards. The court finds in relation to count 6 that every element of the offence of indecent assault is proven beyond reasonable doubt.
As to count 7 in the information, the court finds proven beyond reasonable doubt that the accused whilst on a family camping trip and initially while HD was sleeping knelt beside her bed, placed his hand inside her sleeping bag and rubbed HD’s vagina. The accused stopped shortly after HD awoke and the accused’s stepson Ryan who had been sleeping nearby in the room said ‘what are you doing’ to which the accused responded that he was merely ‘tucking her in’. The court finds it proven beyond reasonable doubt that the accused by those actions intentionally and unlawfully applied force to HD. The application of force was not for any legitimate purpose such as ‘tucking in’ HD who was in fact sleeping in a sleeping bag, rather it was for a prurient purpose. The court finds it proven beyond reasonable doubt that this rubbing of HD’s vagina amounted to circumstances of indecency as earlier defined in these reasons and involved a sexual connotation. That conduct was indecent and had a sexual connotation by contemporary standards. The court finds in relation to count 7 that every element of the offence of indecent assault is proven beyond reasonable doubt.
As to count 8 in the information, the court finds proven beyond reasonable doubt that at a New Years Eve Party at his house in December 2002, at a time when BC had gone to bed, the accused entered the bedroom and after massaging her for a time pushed her dress up, pulled her knickers down and penetrated her vagina with a finger. The court finds it proven beyond reasonable doubt that the accused by that action had sexual intercourse with the complainant as sexual intercourse includes any degree of penetration of the vagina or labia majora by any part of the body of the accused or by any object for any period of time. Whilst the court finds it proven that BC did not consent, consent on the part of BC is no defence and is irrelevant, as a child cannot legally consent to sexual intercourse. The court finds proven that BC was born in August 1994, and that the charged event occurred on New Year’s Eve December 2002, and that accordingly that the complainant was under the age of 12 years at the time the sexual intercourse occurred. The court finds in relation to count 8 that every element of the offence of unlawful sexual intercourse with a person under 12 years is proven beyond reasonable doubt.
Verdicts
Count 1 – Guilty
Count 2 – Guilty
Count 3 – Guilty
Count 4 – Guilty
Count 5 – Guilty
Count 6 – Guilty
Count 7 – Guilty
Count 8 - Guilty
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