R v DAWSON-RYAN
[2009] SADC 26
•16 March 2009
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v DAWSON-RYAN
[2009] SADC 26
Reasons for Decision of His Honour Judge Barrett
16 March 2009
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - ADMISSIBILITY
Accused charged with 23 sexual offences against six boys. Four allege a course of sexual offending over several years, two allege single acts. All belonged to a church youth club. Accused applies to sever evidence of all complainants. Voir dire held to determine, first, whether concoction between complainants can be excluded and second, whether evidence of charged and uncharged acts from each complainant is admissible in respect of others. Held: Concoction excluded. Evidence of the two complainants alleging single acts severed from each other and from the other complainants. Evidence of remaining four complainants cross-admissible. Severence declined.
Hoch v The Queen (1998) 165 CLR 292; Pfennig v R (1995) 182 CLR 461; Phillips v The Queen [2006] HCA 4; Phillips v The Queen (2006) 224 ALR 216; R v Bridger (2003) 228 LSJS 112; R v Beserick (1993) 30 NSWLR 510; S v The Queen (1989) 168 CLR 266; R v Liddy (2002) 81 SASR 22; Dick v The Queen [2001] WASCA 152; R v Riley [1997] QCA 227; R v Strickland [2002] WACCA 339; R v Carne (1977) 194 A Crim R 249; R v Kilbourne [1973] AC 729; R v Nieterink (1999) 76 SASR 56; R v Perry (1982) 150 CLR 580; R v Sutton (1983-4) 152 CLR 528; R v Markby (1978) 140 CLR 108; Harriman v The Queen [1989] HCA 590; R v Boardman [1975] AC 421, considered.
R v DAWSON-RYAN
[2009] SADC 26
The accused is charged with 23 sexual offences against six boys between 1972 and 1988. The boys were then aged between 11 and 15 years. They are now men in their 30s and 40s. The accused was born on Christmas Day 1948. He was a leader of the Church of England Boys Society (CEBS) and the boys were all members of CEBS. Single counts of indecent assault are alleged in respect of two of the boys. In respect of the other four it is alleged there was prolonged offending with individual counts identified. The six complainants are two pairs of brothers and two individual complainants.
The complainants reported the offending between 1992 and 2004.
The accused was arrested on in June 2004. He declined to answer police questions.
Voir Dire
The prosecution seeks to proceed by way of a single trial involving all six complainants. It seeks to lead charged and uncharged acts in respect of the four complainants who allege a course of conduct. The accused seeks severance of all counts so that there are six trials. The voir dire was conducted in two stages.
The first stage concerned the question of alleged concoction between the complainants. During that part of the voir dire the six complainants gave evidence. The wife of one of them, the former wife of another and the former partner of a third gave evidence. The mothers of the two pairs of brothers gave evidence, as did the mother of one of the single complainants. The three police officers successively in charge of the various investigations gave evidence. A priest gave evidence of speaking with one pair of brothers about the disclosure of one of them being abused. At the end of the evidence I heard addresses and then later ruled on the application for severance based upon concoction. I declined to sever on the grounds of concoction. These reasons are in part the reasons for that ruling.
The second stage of the voir dire was concerned with the accused’s claim that the evidence of the complainants was not cross-admissible. It was submitted that neither the charged acts nor the uncharged acts of any individual complainant were admissible on the trial of the others. No additional evidence was called on that aspect of the voir dire, but detailed submissions were made. The other part of these reasons relates to that issue. The prosecutor argues that almost all the evidence of charged and uncharged acts of each complainant is admissible on the trial of the others. I will deal with the question of concoction first, but before that I should provide some background.
Background
The accused is now aged in his late 50s. The offending is alleged to have taken place between 1972 and 1988 when he was in his early 20s to late 30s. During that time he had a day job unrelated to the Church of England. Throughout that time he was a youth leader with CEBS in the Plympton area. In the early 70s he lived in Plympton, then he moved to Cumberland Park. The complainants were all members of CEBS. They lived locally. Except in the case of one of the boys alleging a single offence, the accused befriended the families of the other five boys. With some slight overlapping the offending occurred against the boys serially, that is, it would occur with one boy when he was approximately aged 12 to 15, then it would take place with another boy when he was approximately those ages. Thus the offending is alleged to have occurred in this way –
- with CD between 1972 and 1975,
- with his younger brother, DD between 1977 and 1979,
- with DC on one occasion only in 1980 or 81.
- with KG on one occasion only in 1984.
-with MC (DC’s younger brother) between 1984 and 1986
- with AC (between 1986 and 1988.
In the early 1970s the accused lived in a flat in Plympton. Counts 1 and 2 are charges of indecent assault against CD, the elder of the D brothers. They are alleged to have occurred in that flat in 1972 and 1973. The accused later moved to a house in Cumberland Park. Counts 10 and 11 involving DD, the younger D brother, are alleged to have taken place in that house in 1979. Other charged offences alleged to have occurred in that house are the single allegation of indecent assault by KG in 1984, a count of unlawful sexual intercourse involving MC in 1984 and the two counts of indecent assault and unlawful sexual intercourse involving AC in 1988.
The accused acquired a property at Kapunda with a shed on it. Counts 19, 20 and 21, involving MC, are alleged to have occurred there in 1985 and 1986. The accused took boys on camps to various locations in South Australia and interstate. Some of these camps seem to have been “official” CEBS camps which sometimes involved the fathers attending as well. Others were “unofficial”. On these unofficial occasions the accused, together with one or two men who shared his house, would take several boys from CEBS on camps to various locations. On these occasions the boys would be provided with cigarettes and alcohol. These locations included Cape Jervis, Hoyleton, Mylor, Balaklava and Redbanks. Sometimes the accused gave generous gifts to the boys. Two boys received motor vehicles, albeit old ones. The boys would be invited to the accused’s house at Cumberland Park, sometimes alone and sometimes with others. Alcohol, cigarettes and sometimes marijuana were provided there. Pornographic videos were shown.
Legal Principles - Concoction
The prosecution seeks to lead evidence of charged acts, and in the case of four of the complainants, uncharged acts. For evidence of offences against other complainants and evidence of uncharged acts I will use the convenient but imprecise term “similar fact”. If it is reasonably possible that the similar fact evidence is explicable on the basis of concoction or infection then the evidence is inadmissible[1]. Applying the test laid down in Pfennig v R[2], similar fact evidence is admissible in proof of an offence if, taken with all other evidence, it is not susceptible of a reasonable explanation consistent with innocence[3]. The onus is on the prosecution. It is not sufficient that there is a mere possibility of concoction. There must be a real or reasonable possibility of concoction and not merely a fanciful one. The reasonable possibility must be based on some factual foundation[4]. Having said that, because the onus is on the prosecution to negate the reasonable possibility of concoction the court may not admit the similar fact evidence unless it is able to reject concoction as a real or reasonable possibility.
[1] Hoch v The Queen (1998) 165 CLR 292
[2] (1995) 182 CLR 461 at 483-485
[3] Hoch at p269 and Phillips v The Queen [2006] HCA 4 at [54] and (2006) 224 ALR 216
[4] R v Bridger (2003) 228 LSJS 112 at 118
Reports by Complainants
To consider the question of possible concoction between complainants it is necessary to examine the various disclosures and reports to authorities that they made. I will refer to the complainants individually, not in the order that they appear on the information, which sets out the offences in chronological order, but rather in the order that they reported their complaints to the police and others. That makes it easier to consider the possibility of concoction. That will mean that the D brothers will appear last, although the offending they alleged occurred first in point of time. It is not suggested that there is any reasonable possibility of concoction between the D brothers and any of the other complainants. They did not know any of the other complainants other than a possible recognition of being once fellow members of CEBS. There is no suggestion that the D brothers have had any contact with the other complainants as adults. What is alleged by the accused is that there is a reasonable possibility of concoction, first, as between the two D brothers and second among the other four complainants who did all have contact with each other.
Reports by the C brothers
DC and MC are the two sons of ID. All three gave evidence on the voir dire. DC is about 18 months older than MC. MC alleges a course of sexual abuse by the accused between 1984 and 1986 when he was aged 13 to 15. Allegations by him comprise counts 14 to 21 on the information. He alleges a course of offending consisting of many uncharged acts. DC, the older brother, alleges one isolated incident in about 1980 when he was 11. The parents of the D brothers separated in 1985 and were divorced in 1986. The two boys lived with their mother at the time of the separation. DC went into the army in September 1986, a week or so before his 17th birthday. He remained in the army stationed in New South Wales for just over three years. The brothers were not particularly close, and during his time in the army, DC had only one contact with his younger brother who remained in Adelaide. DC returned to Adelaide in late 1989 or early 1990. In early 1990 MC was having an on and off relationship with his partner MAP. She gave evidence on the voir dire. MC gave evidence of telling MAP about the abuse but he is unsure when he did that. MAP said that MC made a partial disclosure to her of sexual abuse by the accused some six months before she became pregnant with their daughter. The child was born on 20 July 1993. That would suggest the first disclosure was in about April 1992. She said that later in the year, still before November when she became pregnant with the child, she and MC visited Kapunda where M pointed out a house where he believed the accused lived. There is no suggestion that he had spoken of the offending to any of the other complainants before this partial disclosure. On another occasion, probably also in 1992, MC made a partial disclosure to his brother at the Tivoli Hotel. They were there with another young man unrelated to these proceedings and that young man’s girlfriend. The complainant was intoxicated. He told the group that he had been abused by the accused. He told them not to tell anyone. His brother, DC, became very angry on his behalf. Thereafter DC was instrumental in having his brother’s allegations brought to the attention of authorities.
The two C brothers went to see the then Anglican priest, Father Fleming, at his offices on 24 August 1992. Father Fleming made a diary note of that appointment. It is very likely that MC spoke to one other complainant, KG, before seeing Father Fleming. There are several reasons for thinking that. The first is that in his evidence, MC said he remembered speaking to KG. Second, Father Fleming said that MC told him that KG had been the accused’s “boy” before him, and that he was going to see him. Third, it seems likely that one or other of the C brothers contacted KG after the Fleming interview to see if KG was willing to come forward with any complaint. Father Fleming said that DC spoke to him over the telephone and told him that KG was not willing to go to the police, and in those circumstances MC would not be going to the police as Father Fleming had advised him to do. Incidentally, MC denies that Father Fleming encouraged him to go to the police. So initially did DC, but later he conceded that it was possible that Father Fleming had given that advice.
It is only a slight digression to note that KG has only ever alleged a single indecent assault by the accused, which consisted of the accused rubbing KG’s nipples at the accused’s Cumberland Park house. Curiously, KG ’s allegation was that MC was present during that incident. MC has never mentioned that incident. It seems that neither MC nor KG spoke of that incident when, in 1999, MC telephoned KG, who was then living in Sydney, and asked him if he (KG) was going to go to the police with his own allegation of sexual abuse by the accused.
There is no serious suggestion that MC concocted his account to Father Fleming even though he had spoken to his brother and KG on the topic of sexual abuse by the accused before that interview.
Sometime after the Fleming interview, MC’s older brother DC decided to report the matter to the police undertaking Operation Paradox. This would appear to be in 1992. Detective Kranz gave evidence that Operation Paradox wound up in 1992. DC made what he described as an inebriated telephone call to Paradox detailing his brother’s complaints and, for the first time, saying that the accused had “attempted” to abuse him. In addition to the phone call, DC spoke to an officer with Operation Paradox and gave a statement. Police have been unable to locate a record of that statement, but other police documents tend to suggest that such a complaint was made. DC encouraged his younger brother MC, to go to Operation Paradox. MC said that he did that. He said that he went on his own. DC has no recollection of ever knowing that his younger brother had gone to see police at Operation Paradox.
DC told his mother everything he had heard about his brother’s allegation during the Fleming interview. He did that shortly after the interview. He did not disclose to his mother his own allegation of abuse. The mother, ID, was instrumental in pursuing the allegations with the police and others over the years. There was a reasonable amount of communication between the mother and the elder son, DC, on this topic over the years following 1992, but there appears to have been very much less communication between the mother and the younger son, M. There is really no evidentiary basis for suggesting that the final account given by MC of his abuse by the accused has been contaminated. That is, there is no evidence of contamination by his older brother (DC), the other complainants in this group (KG and AC), the mother (ID) or MC’s former partner (MAP). While not conceding that point, Ms Powell QC for the accused presented the argument that the contamination happened another way. She submitted that the accounts given by the older brother, DC, by KG and by AC, have been contaminated by actual collusion with MC or, in the alternative, by a desire on the part of the three complainants to support him, whether or not they discussed that with MC.
After 1992 the C brothers heard nothing of their reports to Operation Paradox. In July 1995 DC contacted the police to see what had happened, but, apart from a note being made of his enquiry, there is no evidence of anything further happening at that stage.
Their complaints received further attention when Detective Kranz began his investigation in January of 1999. Their names are mentioned when he investigates the complaint made in 1998 by one of the single complainants, AC. There is thus some overlapping of the complaint by AC and the C brothers, but I will deal with AC’s reports separately.
Detective Kranz took statements from DC on 13 August 1999 and MC on 2 September 1999. The interviews were audio taped. A transcript was taken. The transcript suggests that the tape ended mid-sentence and there was no other tape. It would appear that the transcript at least covers a conversation lasting about an hour and a half. In that transcript MC gives an account of the accused abusing him sexually between the time he was in grade 8 and Year 9. He repeated Year 8 at one High School and the abuse apparently stopped when he was in Year 9 at another High School. MC speaks of going to the accused’s house where there was a pinball machine, motorbikes and home computers. He went on camps with the accused, a few other CEBS leaders, and other boys. He said there was a camp at Mylor where nothing happened.
For the purposes of discussion of the question of concoction it will be sufficient to describe the allegations in a narrative way. When I turn to the questions of cross-admissibility it will be necessary to identify charged and uncharged acts and to more carefully identify the allegations.
MC told the police that the abuse began at a camp near Burra. The accused gave him alcohol and cigarettes and the first abuse occurred when MC became intoxicated. It started with fondling and included oral sex. MC suspected that he had been anally penetrated because of soreness he later felt. He said that he remembered on one occasion waking up to find the accused had penetrated his anus. The sexual abuse included simulated sexual intercourse, masturbation and oral sex. He used to go to camps at the accused’s property at Kapunda every fortnight or so. His friend, KG, sometimes went and he said there was an occasion where KG found him naked in a tent with the accused (KG does not speak of any such incident). MC said that on one occasion the abuse occurred at the accused’s house when his brother, DC, stayed overnight. On that occasion they were shown pornographic movies. (DC does not speak of this incident.)
MC said that abuse also occurred on an occasion at a motel at Berri. He said that at the time he was being abused, he was regarded as the accused’s “boy”. He said that he suspected that the complainant AC was the “boy” after him. The transcript of the audio interview conducted by Detective Kranz was never reproduced in statement form. During the interview, Detective Kranz made reference to a complaint by AC. At one stage he commented, “This was how it was done with AC as well”. By the time of the audio interview with MC, Detective Kranz was in possession of a statement from AC taken by Police Officer Gaynor Brook 1998. Detective Kranz said that he had probably spoken to AC himself before the interview with MC. It appears that MC had just come out of hospital from having an operation to remove haemorrhoids, which he attributed to the sexual abuse by the accused early in his teens. While he had been in hospital his brother DC had been interviewed by Detective Kranz and a transcript was tendered of that audio interview.
DC’s interview with Kranz on 13 August 1999 appears to have lasted about an hour and a quarter and no statement was prepared from this transcript. DC’s account of events at the accused’s house and on the camps is similar to that of his younger brother, but his account of his own sexual abuse by the accused is quite different. He said that on a camp at Balaklava he got intoxicated and “I got grabbed there”. He went on “He just put his hand in and just grabbed”. He is there apparently referring to the accused grabbing his penis. The rest of the interview was given over to DC supplying details of people the police might speak and properties they might investigate. During the interview Detective Kranz refers to AC having mentioned something. DC said that he understood by this that AC has made a report to the police. Detective Kranz said during the interview with DC that the more witnesses who come forward, the more credible the account of abuse becomes. By that time AC had already given his statement to the police and MC was about to. Thus by September 1999 three of this group of four had given a statement or interview to the police. The C brothers had done so, and so had AC. The only one of this group of four who had not given a statement was KG. He was living in Sydney at the time and did not give a statement to the police until 2003. Of course the D brothers had not given their statements, but there is no suggestion that there was any connection between the group of four and the two brothers.
During the course of his investigation Detective Kranz sought advice from the DPP about how he should proceed. He followed up some of the suggestions the DPP made. They were particularly directed towards the investigation of the complaint by AC. The AC investigation closed after the receipt of advice from the DPP on 3 May 2001 that there were no prospects of success in pursuing that prosecution. Detective Kranz had opened a second file relating to the investigation into the complaints by the C brothers, but it is unclear whether he formally closed that investigation as well.
What seems to have renewed the C investigation is the receipt by Detective Rodney of information from ID, the mother of the C brothers. This was in March 2002. Detective Rodney took up the investigation. He received materials from ID in March. He had a telephone conversation with MC and met with him in July. Police Officer Vansoest took a detailed statement from MC on 22, 23 and 29 July and it was signed by him on 29 July. Somewhere between receiving the information from ID in March and speaking to MC in July, Detective Rodney spoke to his brother, DC. Detective Rodney made no note of the conversation he had with DC. He said DC disclosed no offence and accordingly Detective Rodney advised him that no action would be taken. It is not entirely clear why Detective Rodney gave that advice, given that the transcript of DC ’s interview with Detective Kranz would suggest that what DC had said would amount to an indecent assault, albeit he described it as an attempt. Further detail of that event appears in DC ’s final statement taken on 9 July 2004 and sworn on 16 July. In that statement DC said that the accused “Put his hand inside of my track pants, but on top of my underwear, and grabbed my penis with his left hand”. That has become count 12 on the information, a charge of indecent assault. In his evidence on the voir dire DC seemed to regard this as an “attempt” at sexual abuse. That may explain how Detective Rodney saw it as not disclosing an offence. DC appears not to have challenged that advice at any stage. His focus was instead on trying to get action on his brother’s complaints.
Detective Rodney remembered an occasion when he told one, or perhaps both, of the C brothers that they should not contact other witnesses. There is no suggestion that after 2002 either of the C brothers did contact any other complainant. Nor is there any suggestions that any of the other complainants contacted either of the C brothers. However on 30 October 2002 there was a family reunion between the C family and the G family. The two families, in particular the two mothers, had been friends. MC had been a good friend of KG at the time both were in CEBS. MC attended the reunion. He said there was no discussion on that occasion on the topic of the investigation into the allegations of sexual abuse by the accused. MC said there might have been some bad mouthing of the accused but there was no discussion. DC went to the reunion. He said that MC and KG were there and so was KG’s older brother. When asked whether there was any mention of the investigation at the reunion, he said;
I don’t recall there being one. We were, actually we were all very guarded. We were all very guarded, all four of us, we didn’t speak much. We were very uncomfortable.
He said he did not hear his mother discuss the matter either.
KG went to the reunion with his wife. They had returned from Sydney in 2000. He said that in 1999 he had spoken to MC over the telephone. MC had telephoned him and told him he was going to the police about the abuse by the accused. KG’s wife overheard the telephone conversation and remembers KG saying that he would support MC. KG said that at the reunion MC said, as he had said over the phone previously, that he was talking with the police. KG told MC that he would be willing to help, to tell the police what had happened to him. KG acknowledged that in his witness statement he said MC told him that he (MC) was going to do something about the accused. In the same statement he said that he did not discuss any detail about what MC was going to say to the police. Further, he acknowledged that in the statement MC asked him if he knew anything about the accused. He said that there was nothing at all he could say. That last aspect, of course, is different from what he was saying in court. He said that what he meant was that while he was willing to speak to the police if they approached him, he would not go to them.
KG’s wife was at the reunion and she said that so far as she knew the topic was not discussed.
ID was the hostess of the gathering. She could not remember KG being at the party and she denied there was any conversation about the abuse. KG said that he did not speak to DC at the party. DC said that the party was the last contact he had with KG and he did not recall any mention of the sexual abuse. MAP was present but she could not remember who was there. She did not think that the sexual abuse was discussed. DC gave a statement to Detective Foley (who succeeded Detective Rodney in charge of this investigation) on 9 July and signed it on 16 July 2004.
In his statement sworn on 27 July 2002, MC makes no reference to two incidents which he mentioned to Detective Kranz in 1999. One was the incident where KG is said to have found MC naked in a tent with the accused, and the other is MC being abused by the accused when he and his brother stayed overnight at the accused’s house – MC sleeping in the same room as the accused and his brother DC sleeping in the lounge room.
Ms Powell QC submitted that that was significant. KG in his statement makes no mention of the tent incident and DC makes no mention of staying overnight at the accused’s place with his brother. That being so they do not corroborate MC’s account of these two events. Ms Powell submitted that that demonstrates that MC must have spoken to KG and his brother and discovered that they do not support his accounts. On discovering that, he deleted those two incidents from his subsequent statement. She put that to MC in cross-examination. He said that he had simply forgotten them.
That is a summary of the evidence of the C brothers, in particular the evidence of their disclosures to the police and their partial disclosures to Father Fleming and their mother. There is also the partial disclosure by MC to his former partner MAP. It is also a summary of the contacts between the C brothers and the other two complainants in that group.
Reports by AC
AC and his younger sister lived with their mother. She had separated from her husband when AC was about 4. He joined CEBS when he was 8. He alleges that the accused sexually abused him between 50 and 100 times between 1986 and 1988. The accused befriended his mother and she worked on committees associated with CEBS. She developed a relationship with a man who boarded at the accused’s house. The abuse is alleged to have taken place at the accused’s house and on camps that they both attended. It lessened and finally stopped before he got his P plates, which was presumably when he was about 16. It began when he was in year 8 when he was 12 or 13. It started on an occasion when the accused took AC on a trip to Ballarat. They stayed in a caravan park and AC alleges that the accused there performed oral sex and masturbation on him.
The abuse took place at the accused’s house, Kapunda, Whyalla, Ballarat, Wangaratta and Sydney. The accused gave him an old car before he was entitled to drive it and an electric guitar and amplifier. He took him on holidays for which he was not required to pay. He provided him with alcohol. He gave evidence that he first told his then girlfriend of the abuse in late 1997. He said it then took a couple of months to get up the courage to tell his mother. Almost immediately she wrote a letter to the accused breaking off relations with him by reason of that disclosure. The mother’s letter was dated 11 March 1998 and was tendered on the voir dire. He said these were only partial disclosures to his girlfriend and mother. He did not go into details. He said that before he went to the police he told four of his friends something of what had happened. None of these friends is involved in these proceedings.
Police Officer Gaynor Brook took a statement from AC on 22 April 1998. It is not clear if any further investigations took place between then and January 1999. As earlier indicated, in January 1999 Detective Kranz began his investigation and came into possession of the statement Ms Brook had taken from AC. The statement was not signed by AC until 14 February 2004. In the statement he speaks of being invited to Kapunda by the accused when both were on their own. He rode motor bikes there. Initially there was no abuse. The first abuse occurred when he was 12 or 13 on a trip they took alone to Ballarat. The abuse took the form of oral sex and masturbation. On their return the accused gave him an air rifle. Thereafter the abuse took place often at the accused’s house or at Kapunda. He fixes the first identified count of indecent assault by reference to a proposed trip to Kapunda. On the eve of the trip AC injured his knee at a CEBS meeting. He said the knee was treated by Ms D, the mother of the D brothers, the complainants who have no contact with any member of this group. He said the next day he was taken to the Royal Adelaide Hospital for further treatment. The abuse consisted of masturbation. Over the years the abused also took the form of simulated sex by the accused. He was once provided with a Penthouse magazine to look at while he was abused.
The second identified occasion consisted of the accused putting his finger in AC ’s anus. That is alleged to have occurred at the accused’s house. On trips away the accused gave AC alcohol. He said that quite often he would be affected by alcohol when he was being abused. AC said that he had had contact with two of the other complainants before speaking to Officer Brook on 22 April 1998 and with MC afterwards.
The first contact was when he was a teenager and after the abuse against him had started. He said he was in a car with KG while his mother was driving. He said that KG told his (AC’s) mother that the accused had pinned him to the ground and started fondling his nipples. He said that his mother appeared not to believe it, but he did believe it because of what the accused was doing to him. Nothing more was said about that incident.
The second contact was with DC, the elder of the C brothers. He said that in the early 90s he was telephoned at work by DC who said that he was going to the police about the accused, and did he (AC) have anything to add. AC said that he was still in denial and so he said “No”. He said DC said that his younger brother MC had been sexually abused by the accused and that the accused had attempted to abuse him.
AC said there was another occasion when there was contact between AC and DC. He said it was at the Crown and Sceptre Hotel. It was after the phone call. He said that there was not much opportunity for them to speak because other people were around, but AC thought that although he was not forthcoming, he might have let DC know that he knew more about the abuse than he had let on when he was speaking over the phone. DC did not recall the Crown and Sceptre conversation.
AC did have contact with MC after going to the police. He said the first contact was when they bumped into each other at the Rhino Room in Frome Road. He thought that was in 1999 to 2000. He said that they each let the other know that they had bee sexually abused by the accused. At a later proofing session AC said that when MC told him about how the accused had abused him the first time, it was either exactly the same or very similar to what the accused had done to him.
He said that what he meant by that was not that the abuse was the same, but that the circumstances of them being lured away were the same, ie they were taken alone to a country location and there sexually abused for the first time. On that occasion they exchanged telephone numbers and there were two later telephone calls between them. Each claimed that they did not go into details about the abuse.
Having made his statement to the police, AC was told by an officer that he should not “get his hopes up” about the outcome of criminal proceedings and he might consider taking civil proceedings. AC instructed a solicitor to write to the accused making a civil claim. The solicitor sent a letter in November 1998. The accused replied denying liability and no further action was taken at that time.
AC and the two C brothers have subsequently instructed solicitors to commence a class action suit on their behalf. It is unclear when those instructions were given, but it may have been in 2003. None had been to a joint meeting with other potential claimants. KG and the two D brothers have not pursued civil claims.
Reports by KG
I turn to the final member of the group of four. He was the last of that group to speak to the police. He alleges a one off offence when the accused rubbed his nipples in the lounge room of the accused’s house. He said it was probably a long weekend in 1984 when he was 14. His mother and the mother of the two C brothers were friends. KG and MC were friends when they were in CEBS. KG is about a year older than MC . He was introduced to CEBS by DC. He joined in 1982 when he began High School and left in 1986. He spent time at the accused’s house and he went on camps with the accused and other boys. He was given cigarettes, alcohol and access to pornography. He said he could not recall ever being told that the C brothers had seen Father Fleming. By inference that might mean he does not recall either of the C brothers approaching him after they had seen Father Fleming and asking him whether he was willing to come forward. I think it very likely on the evidence that he was approached in that way and that he indicated that he was not going to the police. It may also be that he did not acknowledge that he had been abused. That was in 1992. He lived in Sydney from 1992 to 2000. The evidence suggests that he changed his mind in 1999. MC had rung him saying that he was going to go to the police about his own abuse. It seems clear that he asked KG whether he would support him. It seems equally clear that KG agreed to do so. In cross-examination he agreed that he probably said to MC over the phone, “If I can support you I will”. He agreed that he repeated that at the reunion in October 2002. It was only in cross-examination that he acknowledged the phone call and acknowledged what he said. As I mentioned earlier, he told Detective Rodney on 5 February 2003 that at the reunion, he had told MC that there was nothing at all that he could say in support of MC. He thought that the C brothers’ mother, ID, had come to his wedding in Sydney in March 1999, although they did not discuss anything about the sexual abuse. KG ’s wife and ID both say that she did not go to Sydney for the wedding. KG is the only one of this group of four who said he had shown his statement to anyone else. He showed it to his wife. She said that she had read it but not discussed it with anyone.
Reports by the D brothers
It is not suggested that there is any collusion between any one of the other four complainants and either of the D brothers. What is suggested is that there is a real possibility of collusion as between the D brothers themselves. I will deal with them together. These brothers are the eldest of the six complainants. They are four and a half years apart in age. The elder brother CD, said that he was sexually abused by the accused at least 100 times between the ages of 12 and 15. He alleges that it occurred at the accused's flat (before he moved to a house), on camps at Cape Jervis and Hoyleton and in a motel on the way to a trip to The Grampians. These are the 7 charged acts of indecent assault. The D brothers lived with their mother in South Plympton. The family had moved from the country when the boy’s father committed suicide. There were two girls born between the elder and the younger boy. CD married when he was 24 but he and his wife separated. The mother encouraged the boys to join CEBS and the accused befriended her and the family. The younger brother DD said that he was subjected by the accused to a course of sexual abuse from when he was 12 to when he was 15. The abuse of him started about two years after it finished with his elder brother. The charged acts are alleged to have occurred at a CEBS camp at Mylor and at the accused's house. The first two counts occurred on one occasion and the second two counts occurred on one other. Each of the boys was provided with cigarettes and alcohol. Each went interstate with the accused.
DD travelled with the accused to Tasmania in the company of Robert Brandenberg, who in turn was accompanied by another teenage boy. DD said the accused took photographs of him naked. That is not alleged by any other complainant. He was given gifts including a digital watch, a calculator and an old Jaguar car.
The younger brother DD, was the first to disclose what had happened to him. Mr Brandenberg committed suicide in 1999. Before that, DD said that, over the years when drunk, he would drop hints about being abused, but he did so in such a way that no one caught on. He said that two weeks before Brandenberg’s death, he told his then girlfriend about the abuse. He made a partial disclosure to her. He said a week later he told his mother and one of his sisters. He did not then tell his brother or anyone else. The matter was not discussed for a further 5 years. In January 2004, Detective Foley, who had taken over the investigations into alleged abuse by the accused, telephoned DD. She had been given his name by someone else. She said that in her first telephone call DD said he would need time to think about whether he should say anything. She rang him back a week later.
There is some uncertainty about which of the phone calls DD received in the presence of his brother. CD remembered no such phone call. DD said from his responses on the telephone he was making it clear that he was talking to the police officer about sexual abuse of him by the accused. He said that after the phone call he said to his brother “Do you know what happened to me within CEBS by the accused?” He said his brother did not respond but gave a quizzical look. Progress in that investigation took some months. Detective Foley said she made the two phone calls to DD in January 2004. Between January and August she must have learnt that both D brothers had information to give about abuse by the accused and she rang the elder brother on 6 August to make an appointment to take a statement from him. She also rang the younger brother who said he that he wanted his older brother to give a statement first. In the event, that is how things proceeded. She first took a statement from CD on 26 July 2004. On that occasion, he denied being abused. She met with him next on 13 August to have the earlier statement signed. At that meeting CD said that he had been abused. She then began taking a new statement from him. The statement was taken on 13, 26 and 27 August. It was signed on 27 August. She saw the younger brother DD on 8 September and took his statement on that day and 14, and 22 September. It was signed on that last date.
All four members of the D family (including the mother and CD’s former wife, Janine D) testified to there having been a falling out between the two brothers years before over an unrelated matter. As a consequence they rarely spoke. That was how things stood between them in 1999 and in 2004. The mother, Merle D, said that it was not until the elder brother, CD, moved to Queensland that they began to have more contact with him.
Consideration of issues
There must be severance of complaints involving any complainant where I cannot reject a real or reasonable possibility of concoction. If on the evidence there is a real or reasonable possibility that discussion between two complainants has led to one or both of them making false allegations of sexual abuse against then the counts involving those two complainants should be heard separately. That reasoning is then applied to the other complainants.
I think Ms Powell is correct in her submission that it would amount to concoction if, to take an example, one brother were to decide to make a false allegation of sexual abuse in order to support the other brother’s account of abuse even though the brothers had not discussed between themselves the making of false allegations. So if one brother, hearing of the other brother’s story, decides without reference to the first brother to make false allegations of his own then that would be concoction leading to severance. In that sense concoction does not necessarily mean collusion. The concoction could be unilateral although occurring after learning of the story of another complainant. There is no reason why concoction could only occur after discussion between two complainants. There would seem to be no reason in principle why concoction could not proceed from discussion with a third party such as a police office. Precisely that scenario was suggested in this case. When conducting an interview with MC in September 1999, Detective Kranz said, in obvious reference to a statement given by AC to Constable Brook in April 1998, “That is how it was done to AC as well”. Detective Kranz said to DC during his interview that the more witnesses who came forward the more credible the account of abuse becomes. If those remarks lead MC or DC to make false allegations then there would be no reason why that should not be treated as concoction calling for severance. It is of course a different question whether that is what happened or more precisely, whether I can exclude as a reasonable possibility that that happened.
Credibility of witnesses generally
I have heard all six complainants give evidence. There is nothing in their demeanour or manner of giving evidence that suggests that any one of them is lying or deliberately reconstructing. The impression from each of them is that they were reticent in talking about the topic of sexual abuse and considerable emotion was aroused when they did. I am conscious however that demeanour may not be the most reliable way of assessing a witness’s credibility. Reticence and high emotion might be consistent with telling falsehoods, despite my impression that that was not so in respect of any one of the complainants or, for that matter, the other civilian witnesses called by the prosecution.
More persuasive indicators of truthfulness are a comparison of the witnesses’ evidence with other evidence which is reliable. Evidence will be more credible if it is consistent with other reliable evidence. The inherent likelihood or unlikelihood of an account is probably a useful indicator of credibility or lack of it. An obvious motive to lie might also help.
In that respect there were only two occasions when it might appear that one witness was concerned to “support” another. The first is the instance of DC who was obviously keen to see vindicated his younger brother MC’s account of sexual abuse. Their mother, ID, was keen to pursue both her sons’ accounts of sexual abuse although MC had given a reasonably detailed account of abuse to Father Fleming before his mother was told about it. That was not so with DC. He did not give his account of abuse until later.
No one seemed concerned to support AC in his accounts. Neither of the D brothers appeared concerned to support the account of the other although the younger brother, DD, asked that his older brother, CD, give his statement to the police before he himself gave one.
KG probably said on at least one occasion that he would support MC in his complaints about abuse. I discount that fact as telling against KG ’s credibility. Quite remarkably, his account of sexual abuse is of a single episode when the accused rubbed his nipples. He said that took place in the presence of MC, but MC does not recollect any such event. It would be remarkable if he chose to support MC by telling a story that was not going to be supported by M.
Credibility – the C brothers
There is no reason to think that MC has concocted his story as a result of discussions with anyone else. He spoke first to his partner, and then, when intoxicated, he spoke to a group of three people at the Tivoli Hotel, namely his brother, a male friend and that friend’s girlfriend. His later discussions with Father Fleming and the police were at the suggestion of his brother, but before his brother ever indicated that he himself had been abused. For good reason, Ms Powell QC for the accused does not point to indications in the evidence of concoction on the part of MC.
In respect of his brother DC, it is certainly true that he sought to vindicate his younger brother’s complaints. He did that without disclosing abuse of himself. He said nothing of that to Father Fleming or to his mother. He did not mention the incident to KG when he spoke to him in 1982. It was not until he spoke to the police that he said that the accused had attempted to abuse him. If he manufactured that story he chose to make a modest claim of abuse. Against him it might be said that while he was willing to make a false allegation he was only willing to make an allegation of a limited nature.
Notwithstanding the unusual reticent shown by DC in reporting his own alleged abuse, that evidence seems more consistent with a natural reluctance to talk about his allegation in the light of his bother’s more serious allegations than it does with a determination to tell a false story. He only ever put it forward as an attempt on the part of the accused to sexually abuse him and seems to have readily accepted Detective Rodney’s advice that that account did not give rise to a chargeable offence. In these circumstances I reject as a reasonable possibility that there was concoction by either of the C brothers.
Credibility – AC
AC did not report any allegation of abuse until 1997 or 1998 when he spoke first to his girlfriend then his mother. He did not say anything, when, as a teenager, he heard KG make an allegation of a sexual nature against the accused in the car. He first spoke to Officer Gaynor Brook in April 1998. He had earlier declined to make any allegation when DC rang him in the early 90s saying that he was going to the police. He denied to DC that he himself had been abused. In a meeting that he remembered (although DC did not remember) in the Crown and Sceptre Hotel he was noncommittal about being abused. In those circumstances it seems to me it would be remarkable to concoct a story years later to his girlfriend and then his mother. He had given his statement to Constable Brook before having any contact with MC in 1999 or 2000. It cannot be suggested that he decided to make up a story having spoken to MC. He had already given his statement to the police. In those circumstances I reject as a reasonable possibility that AC has concocted his account of abuse.
Credibility – KG
KG makes the solitary allegation of the accused indecently assaulting him by rubbing his nipples in the presence of MC . That account is not supported by MC. KG does not speak to the police until after he was spoken to by DC and then MC in 1992. On those occasions he declined to make an allegation, at least as DC recollects it. KG has no recollection of those telephone calls but for the purposes of determining whether there is a reasonable possibility of concoction I will accept the accuracy of DC ’s evidence that he did telephone KG in 1992. MC rang KG in 1999. KG at first denied saying that he would support MC but in cross-examination he acknowledged that he had said that. There is also the contradiction in his evidence about what he said at the reunion. Nevertheless it seems remarkable that he should make such an allegation without having any reason to think that MC would support him in that account. I conclude that there is no reasonable possibility of KG concocting his story.
Credibility – the D brothers
The younger brother DD, was the first to make any disclosure and he did so to his family. He did so around the time of the suicide of Mr Brandenberg in 1999. He did not pursue the matter with anyone else until he was contacted by Detective Foley in 2004. It seems that he had little to do with his brother CD. They had apparently fallen out over some completely unrelated matter. He does not seem to have discussed the matter at all with his brother until there was the phone call from Detective Foley. It is true that he asked that his older brother go first in giving a statement to the police but it seems a remarkable way to go about concocting a story. Equally it seems fanciful to suggest that the older brother, CD, would make up a story of his own abuse to the police simply to support his brother. The independent evidence of family members suggest that the brothers barely spoke to each other. I exclude as a reasonable possibility that either of the D brothers has concocted their stories.
Conclusion
For the reasons discussed above I exclude as a reasonable possibility the concoction by any of the complainants of the accounts they have given of sexual abuse by the accused. In those circumstances I decline to sever the charges involving each complainant on that ground. It will be a separate question whether there should be severance because of an absence of cross-admissibility between the evidence of the various complainants.
Cross-admissibility - Severance
I now turn to the second aspect of the voir dire which the application to sever the counts on the information on the ground that there is no cross-admissibility between them. In the part of this ruling dealing with concoction I have referred to the evidence of each complainant in a fairly general way, but for the purposes of determining cross-admissibility it is necessary to identify more precisely the acts alleged by each complainant, both the acts charged and those uncharged. Only in that way can questions of “striking similarity” or “underlying unity” be examined.
The prosecution has produced a chart setting out in summary form the conduct alleged by each complainant. During the course of her submissions Ms Powell QC traversed each of the complainant’s witness statements and Mr Norman intervened identifying the charged and uncharged acts. By reference to the witness statements I will now identify the charged and uncharged acts alleged by each complainant. I will also include relevant biographical details. I will deal with the complainants in chronological order.
CD, born 4 May 1960, alleged course of conduct alleged between 1972 and 1975 when the complainant was aged between 12 and 15.
CD joined CEBS when he was 11. His brother, DD, who is four and a half years younger, joined at the same time. In their family there were two sisters between the two brothers. The family moved to Adelaide from the country where their father had died. The boy’s mother spoke to their local priest who suggested the boys might benefit from joining CEBS. The accused called on Mrs D and both boys joined. Thereafter the accused became friendly with the family. He had meals at their place and joined in family celebrations. Mrs D and the accused’s mother became friendly. The accused kept up contact with the family when the boys grew up. He went to CD’s wedding, driving one of the wedding cars.
When the boys first went to the CEBS meeting their aunt took them to and from the meetings. Later the accused took over that job and CD said he was alone in the car with the accused. He went to CEBS meetings on different nights from his brother. The accused would take him to meals at restaurants. Only on odd occasions would they not be alone. The accused offered him cigarettes and alcohol at the age of 12 but CD did not think he accepted either until he was nearly 14. The accused started taking CD to drive-in- movies in 1973, sometimes after the sexual abuse began.
The charged acts involving CD are counts 1 – 7. Counts 1 and 2 are charges of indecent assault. They allegedly occurred on the same occasion at the accused’s flat. The accused masturbated CD then instructed CD to do the same to him.
Counts 3 and 4 are also both counts of indecent assault and are allegations of the same behaviour in a tent the two shared on a camping trip to Cape Jervis. Counts 6 and 7 involve the same behaviour on a CEBS camp at Hoyleton where they both slept over night in a church hall. They are then three episodes of mutual masturbation.
Count 5 is alleged to be an act of intercrural sex where the accused applied Vaseline to the boy’s legs and then rubbed his penis between the upper the upper thighs until he ejaculated. This is said to have occurred in a motel at Tailem Bend on the way to a proposed CEBS camp in The Grampians. It is alleged to have occurred in 1974.
The uncharged acts fall into two broad categories. The first consists of generalised statements of sexual abuse and the second is reference to a more specific occasion. It might be helpful to deal first with the specific uncharged acts. The first appears on page 9 of his statement. He there speaks of an occasion in 1973 on a trip to Kangaroo Island. When while they were driving along on the island the accused had one quick grab of his penis (page 9 of statement).
Another occasion was the night after the incident of mutual masturbation giving rise to counts 3 and 4. He said the accused did the same thing that night.
A further uncharged individual act is alleged to be one of mutual masturbation while on a camp in The Grampians some time after the incident the subject of count 5 (statement page 13 and 14). Two further acts of mutual masturbation are said to have occurred on a trip to the Northern Territory (statement page 16).
These individual acts are part of a larger picture alleged by CD. He said that after the first time he was abused (ie counts 1 and 2) he was abused on a regular basis at the accused’s flat on a weekly basis normally after CEBS meetings (statement page 6). When speaking in these more general terms about abuse, CD said (statement page 6), “On the occasions I was abused the same thing would happen ...”.
He then described the abuse consisting of oral sex. He said the accused would then masturbate himself while he held on to CD. “Sometimes”, the accused would put CD’s hand on his own penis. He said “sometimes” there would be intercrural sex.
Later in the statement when describing intercrural sex that consisted of the charged count 5, he said that he was not one hundred percent sure whether the accused had ejaculated on that occasion, “because it happened a lot. It is hard to recall each and every time it happened specifically.”
Returning later in the statement to the topic of the abuse by the accused at his flat CD said that:
It would happen more often than not on a weekly basis. It happened that many times that I could not put a number on it. Over the years I would put the number of times that I was abused to be somewhere in the vicinity of one hundred times, conservatively.
Towards the end of his account of the abuse CD said that after the trip to the Northern Territory abuse occurred on only “odd occasions”. He estimated that the abuse stopped in mid-1976 and happened only half a dozen times that year. He appears there to be referring to oral sex in the accused’s flat (see pages 18 and 19 of the statement).
Speaking of events surrounding the sexual incidents CD speaks of being supplied with beer by the accused, of being taken to restaurants and places to eat. He spoke of being taken on interstate trips. He said that once he got his driver’s licence he noticed that the accused started ignoring him and by that time he had found other interests of his own.
Darryl Roger D, date of birth 22 November 1964 – alleged course of conduct between 1976 and 1978 when the complainant was aged between 12 and 14 years.
The charged acts consist of counts 8 and 9, counts of indecent assault and procuring and act of gross indecency respectively. The allegation is of mutual masturbation on the same occasion at a CEBS camp at Mylor. It is the first allegation in point of time regarding this complainant.
The other two charged acts, counts 10 and 11, occurred on a single occasion at the accused’s place – DD could not remember whether it was the accused’s flat in North Plympton or the house at Cross Road. He said it was the only occasion on which the accused had oral sex with him. Count 10 represents that offence and count 11 represents the masturbation of the accused by DD. DD said that the accused only had oral sex with him once as he would not let him do it after that. The accused did try to perform oral sex on him on other occasions, but DD would say “no” and the accused would just fondle him and masturbate him instead (statement page 10).
Pausing just for a moment to compare the accounts of the two brothers about oral sex, the accused appears to have had oral sex with the older brother CD many times and apparently without resistance. With the younger brother there was only one occasion when the act was completed but it was attempted on other occasions. The accused would desist when he met resistance.
So far as the uncharged acts are concerned, DD said that after the first of the charged acts the same thing would become “a regular thing” (statement page 7). Sometimes the accused would use lubricant consisting of KY gel or Vaseline. He estimated that the abuse occurred about a dozen times at the accused’s flat in North Plympton and then continued when he moved to Cross Road. He said that at the Cumberland Park address, the accused would engage in intercrural sex using Vaseline as a lubricant. He estimated that occurred on at least 10 occasions. He said that occurred mostly at the accused’s house, but also on a trip to the gold fields in Victoria and on the trip to Tasmania with Mr Brandenberg (statement page 9). DD said that most of the times when abuse occurred he would have a look at pornography (statement page 10).
DD remembered a couple of times when the accused took photographs of him when he was naked. That is not alleged by any other complainant. The abuse stopped when DD was about 15 years of age.
Cigarettes and alcohol were provided to DD by the accused and he received gifts including a digital watch, a calculator and motor car (statement page 13). DD said that abuse consisting of mutual masturbation occurred too many times for him to be able to remember. He said it would have occurred in excess of thirty times (statement pages 14 and 15).
DC date of birth 22 September 1969 - single allegation in 1980-81 when the complainant was 11 or 12 years.
Chronologically the next allegation of indecent assault comes from DC, the older of the C brothers. He alleges a single episode of abuse consisting of one count of indecent assault. It was when he was eleven. It occurred at a CEBS camp at Balaklava. DC alleges that the accused put his hand inside his tracksuit pants while they were in a tent at the camp. He alleged that the accused grabbed his penis with his left hand on top of his underwear. He said that the accused did that for a matter of seconds but then he had to get up and vomit outside the tent. That was the end of the episode and there was no repeat of it. Being an isolated incident and there being no attempt to repeat it, the alleged offending with regard to DC is materially so different from that of the complainants who allege a course of conduct that it could certainly not be said to be strikingly similar to the allegation of any of the others. Nor could it really be said to be part of an underlying unity. That is despite DC speaking in his statement of being given alcohol and cigarettes and later on marijuana during these camps.
KG date of birth 9 March 1970 - single allegation in about 1984 when the complainant was 14 years.
Like DC, KG alleges only one incident of abuse. He said it happened when he was fourteen. He said that he was at the accused’s house in the presence of MC. The accused rubbed KG’s nipples while they were in the lounge room. As the accused was doing that he was rubbing MC’s shoulders. He said the episode went on for about 15 minutes. He made some excuse and got up and left. That is the only time the accused touched him at all. It is a single count of indecent assault. He speaks of going to the camps and being given alcohol, cigarettes and access to pornography. Some of these surrounding events are the same as the other complainants speak of but the incident of alleged sexual abuse is unique among the complainants. It cannot be said to be strikingly similar to the account of anyone else, not to support an underlying unity of behaviour between the complainants.
MC date of birth 2 March 1971 - course of conduct between 1984 and 1986 when the complainant was aged between 13 and 15 years.
MC is the younger of the two C brothers. The charged acts are counts 14 to 21 inclusive. His parents divorced when he was fourteen. He joined CEBS when he was eleven. He was a member of his group before the accused joined it. The accused started taking MC and his brother home after CEBS meetings. He gave them cigarettes and alcohol. With other boys MC visited the accused’s house where there were motorbikes. They were allowed to ride around in the backyard. He had a pinball machine and a computer in his house. MC and the other boys were allowed to use them. The accused took them out to places to eat. MC went on the camps with the accused where alcohol was drunk. There were several camps on which nothing sexual happened. The accused came around to MC’s house and got to know his parents.
The first sexual abuse occurred at a camp at Redbanks near Burra on a long weekend, probably in October 1984. On that occasion the charged counts 14 to 17 were alleged to have occurred. Other people were supposed to be going on the trip but it turned out that it was only MC and the accused. Count 14 is a count of his touching MC on the penis. The accused then gave him oral sex (count 15). The next episode began the following night while still at the camp. Count 16 consists of an episode of oral sex and count 17 is an episode of the accused getting MC to masturbate him.
Count 18 concerns a allegation of oral sex at the accused’s house in about October or November of 1984. The accused put on a pornographic video at the time.
Count 19 and 20 are counts of indecent assault and unlawful sexual intercourse which are alleged to have occurred at a camp at Kapunda. The accused provided the complainant with alcohol. Count 19 is an allegation of the accused masturbating the complainant and count 20 is an occasion of alleged anal intercourse. This is the only allegation by any of the complainants about anal intercourse.
MC said that the last time he was sexually abused by the accused was at a camp at Kapunda and it consisted of an episode of oral sex. Immediately after MC ejaculated, he said the accused either masturbated himself or engaged in intercrural sex. He could not specifically remember which of those it was. Count 21 is a count of unlawful sexual intercourse.
MC alleged uncharged acts as part of the course of conduct. He said that at times other than the charged counts the accused abused him. It happened twice at his house although he is not entirely clear whether one of those incidents consists of count 18 (see statement page 20). He said that every time he went to Kapunda with the accused he was abused. The abuse consisted of oral sex. He said that he remembered one time the accused made him play with his genitals but he never had to masturbate him or give him oral sex. He said the abuse occurred throughout 1985 about every fortnight or month. He said there was an occasion in Mount Gambier when the accused performed oral sex on him then the accused would masturbate himself (see page 5 of statement of 7/8/04).
He spoke of an occasion when the accused took him to Lake Bonney near Berri. He said that on that occasion the accused “did the same routine”, namely perform oral sex then either masturbate himself or commit intercrural sex (see statement page 24).
AC date of birth 11 May 1973 - alleging a course of conduct between 1986 and 1988 when the complainant was aged 13 to 15 years.
AC alleges first a course of conduct of abuse consisting of 50 to 100 incidents over a period of years but there are only two charged offences. AC met the accused through CEBS. When he was about twelve or thirteen he accepted an invitation from the accused to go to the camp at Kapunda. He went several times without there being any sexual abuse. AC’s parents had separated when he was four and he never really had a father figure. The accused got to know AC’s mother and befriended her. AC’s mother had a relationship with a man whom the accused was living with. The first time there was an allegation of sexual abuse was on a trip that AC took with the accused to Ballarat. They stayed in a caravan park and the allegation is of oral sex followed immediately by the accused masturbating AC. He said that “the normal thing” that happened was that there would be oral sex first followed by the accused masturbating him. Then the accused would masturbate himself (statement page 6). He said thereafter abuse began a couple weeks later and happened lots of times at the accused’s house in Cumberland Park or the farm at Kapunda. He said it continued for two or three years on a regular basis.
The first charged act, count 22, is an allegation of indecent assault occurring at the accused’s house in Cumberland Park. AC identifies the occasion as being on the eve of a trip to Kapunda when he injured his knee earlier in the evening at a CEBS meeting. The knee was treated by MD, the mother of the D brothers. AC said that the accused masturbated him and he thought that “he would have also given me oral sex that night, but I cannot remember specifically if that happened that night. I do remember him masturbating me that night …”. The second charged act, count 23, an act of unlawful sexual intercourse alleged to have occurred at the accused’s house. It consisted of the accused putting his finger in AC’s anus (see statement page 10). That act is not alleged by any other complainant.
The uncharged acts include allegations of being abused when he was taken to Wangaratta in Victoria and once on a trip to Sydney. He said he could not remember the exact specifics of each time (see statement page 9 and 10). AC said that he was taken many times to Kapunda and abused there in the back of the accused’s panel van or in a tent (see statement page 11). He said that sometimes the abuse would consist of intercrural sex (see statement page 9).
AC said that he was given gifts by the accused such as a car, and electric guitar and amplifier and holidays. The accused provided him with alcohol.
That concludes the account of the six complainants.
Alleged Underlying Unity
The prosecutor draws attention to the several aspects of these charged acts suggesting that they bear such a similarity to the accused’s behaviour towards other complainants that, overall, there can be seen an underlying unity in the accused’s behaviour. He submits those aspects are:
(i)instances of mutual masturbation, always involving the victim ejaculating first.
(ii) a towel is used to clean up
(iii)there is the unusual practice of intercrural sex, always involving the use of Vaseline.
The prosecutor draws attention to events surrounding the sexual acts which constitute the underlying unity of behaviour. They are:
(a)The relationship develops through CEBS, a voluntary activity rather than a situation where a perpetrator would automatically come into contact with children, such as a school.
(b)There is an extended period of individual grooming – innocent association, building trust, a parallel close relationship with the family. That is to be contrasted with the facts of, say, Liddy where the grooming might be described as grooming of a group, making talk about sexual matters in the group the norm.
(c)The relationship with the victims and their families continues when the boys become adults. In this way the accused makes it more difficult for the victims to complain. His relationship with them is normalised.
(d)There is some commonality in the location in which the offending takes place – a tent, in the back of the accused’s van, and a shared bed, either at the accused’s place or in a motel.
(e)the offending occurred in contexts where activities attractive to boys are provided – camping, car maintenance, bike riding.
(f)illicit activities are usually offered to the boys such as cigarettes, alcohol, pornography and even marijuana.
(g)the victims are given gifts, they are provided with meals, and they are taken on holidays. Favouritism is shown towards the victim. The front seat in the car, the first choice of alcohol, the first ride on the bike.
I have listed the suggested common features of sexual behaviour and the non-sexual behaviour so that the similarities and dissimilarities between the complainants’ accounts can be more easily identified. However a simple comparison using a checklist is not, in the end, the way in which the proposed evidence should be analysed. It is the probative quality of “similar fact” evidence that is critical, whether that be between pieces of evidence which are said to bear a to be a striking similarity to each other or whether the criterion is underlying unity.
Discussion of legal principles
The onus is upon the accused to demonstrate that the discretion to sever counts should be exercised in his favour. Notwithstanding that onus there is an exclusory rule. It arises from the danger of the jury being prejudiced against an accused by hearing evidence of sexual abuse from several complainants. The danger is that the jury will misuse the evidence to reason that the evidence of one complainant discloses a propensity to commit such offences on the part of the accused and therefore has a propensity to commit such offences. The danger is that the jury would, relying only on that propensity, convict of counts relating to other complainants.
The rule excluding evidence which does no more than establish propensity is expressed thus by Mason CJ, Deane and Dawson JJ in Pfennig v The Queen (1994-5) 182 CLR 461 at 480-1:
In this court, in conformity with earlier English authorities, it was accepted that propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged.
Their Honours then identified the circumstances in which evidence, though it be evidence of propensity, is admissible. Their Honours said:
But it was accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition. It was also accepted that, in order to be admissible, propensity evidence must possess “a strong degree of probative force” or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity.
Their Honours then said that propensity evidence is received where there can be demonstrated a striking similarity between different offences or between different witnesses. Their Honours referred to the basis for admission of similar fact evidence adopted by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen (1988)165 CLR 292 at 294. Referring to that principle the joint judges in Pfennig said:
… Their Honours stated that the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged.
The court in Pfennig re-expressed that test in the following terms:
… For propensity or similar fact evidence to be admissible, the object of improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged.
(ibid at page 481-2)
The Pfennig judges then approved the passage of the Hoch judges which suggested specific descriptors or labels to the sorts of evidence which might be admitted under the imprecise heading of “similar fact evidence”. The judges in Hoch said (Pfennig ibid at 482):
Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force … That strength lies in the fact that the evidence reveals ‘striking similarity’, ‘unusual features’, ‘underlying unity’, ‘system or pattern’ such that it raises, as a matter of commonsense and experience, the objective improvability of some event having occurred other than as alleged by the prosecution”.
The High Court has quite recently affirmed that whatever descriptor or label is attached to the similar fact evidence it must have such high probative weight that its exceptional admission is justified. Referring to many earlier High Court cases, the court in Phillips v The Queen (2006) 225 CLR 303 at para [54] said the High Court reiterated the fundamental aspect of the requirements for admissibility is that it must possess some particular probative qualities.
The admission of similar fact evidence … is exceptional and requires a strong degree of probative force (Boardman, Markby, Perry, Sutton and Pfennig).
It must have “a really material bearing on the issues to be decided” (Boardman and Markby). It is only admissible where its probative force “clearly transcends is merely prejudicial effect” (Perry, Sutton, Harriman and Pfennig). “Its probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind” (Sutton).
The criterion of admissibility of similar fact evidence is “the strength of its probative force” (Hoch). It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence (Hoch and Kilbourne). The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused” (Pfennig). Admissible similar fact evidence must have “some specific connection with or relation to the issues for decision in the subject case (Pfennig). As explained in Pfennig:
The evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.
A helpful and pithy way of expressing the test of admissibility is that adopted by Lord Simon of Glaisdale in R v Kilbourne [1973] AC 729 at 759. The question is, is there:
… such an underlying unity between the offences as to make coincidence an affront to commonsense.
Adapting that observation to the facts of this case:
Is there such an underlying unity between the evidence of the complainants as to make coincidence an affront to commonsense?
The Prosecution Submissions
The prosecution does not seek to suggest that the evidence of the various complainants exhibits striking similarities. Clearly that is not sustainable. The prosecution submits that the evidence of the complainants exhibits such an underlying unity that the evidence of them all is cross-admissible. It concedes that if the evidence of all of them display quite unremarkable similarities, then there could not be said to be an underlying unity in their evidence. In this regard I think that several features of the evidence of the complainants could be described as unremarkable. The prosecutor pointed to the fact of a towel being used every time a particular complainant or the accused ejaculated after sexual activity. He suggested that there was a commonality in the location in which the offending occurred, eg a tent, in the accused’s van, or a shared bed at the accused’s house, or a motel. These opportunistic factors could not in my view be described as remarkable even if in conjunction with remarkable factors. Nevertheless, the Crown submits that in both the sexual acts themselves and in the surrounding circumstances there is an underlying unity in the behaviour of the accused toward each of the six complainants. In my view, that submission fails in respect of two of the complainants. Two of the complainants certainly testified to being part of the same non-sexual activities as the other four, but in their accounts of their sexual experiences there is a marked difference. DC and KG allege that they were sexually assaulted on only one occasion. That is so remarkably different from the other four who allege courses of conduct extending over several years that it is simply not possible to see how their evidence could be admitted to support the evidence of the other complainants. That single difference is so great that trials of their single incident should be severed from each other and from all others. The issue for determination then is whether the evidence of the other four complainants is cross-admissible amongst themselves. The prosecution submits that the first step in approaching this task is to consider the evidence as a whole in deciding if there is a discernable underlying unity. Mr Norman submitted that the combination of circumstances in this case does raise as a matter of commonsense and experience the objective improbability of the events occurring except as contended for by the prosecution. He said that, if, as he contended, there is a clear pattern of activity on the part of the accused then that can only be the result of three things: One, concoction (which has already been excluded), two, coincidence or three, the accused’s guilt. He then proceeded to demonstrate the underlying unity. He applied his submissions to all six complainants but I adapt and apply them only to the four complainants who allege courses of conduct.
First, there is the introduction and relationship formed through CEBS. This a voluntary enterprise was encouraged and sustained by the accused, unlike the situation of say a school teacher where there is automatic contact between teacher and child.
The second is the long term nature of the relationship established. There is a period of innocent association during which trust is built up. So far that might be unremarkable. It is to be distinguished from abuse of children by strangers, but the process must be very common where offending occurs over a long period of time. There is a parallel relationship formed between the accused and the families of the boys. What is particularly unusual about this aspect, Mr Norman submitted, is that the relationships last well beyond the ages when the sexual impropriety takes place. The accused keeps up contact with the complainants as they grow up and become adults. The parallel relationship with the families continues. In that way a peculiar restraint is imposed upon the complainants not to complain. That aspect of the case does appear unusual.
Next the complainants are taken away to camps and interstate trips. They are also taken to the accused’s house. When the accused establishes his own campsite at Kapunda they are taken there. The trips away are a form of gift. Other gifts are given. They are taken out to meals. They are given presents
Notably, secrecy is maintained by the provision of “illicit” substances, eg alcohol, cigarettes, pornography. Notably also is the provision of activities attractive to adolescent boys such as camping, car maintenance, motorcycle riding and games. During the course of the relationship with each of the boys particular sorts of favouritism is shown, such as who gets to sit in the front of the car, who gets the first choice of alcohol and who gets the first choice of the ride on the motorbike.
The relationships are serial and occur during almost identical age span with each of the boys – somewhere between 12 and 15. In each case the relationship is sustained for approximately 2 years. The interest is in boys of a fairly narrow age group, and with the possible exception of a slight overlap between the last two boys (MC and AC), the accused had lost interest in one before paying his sexual attentions to the next.
While the prosecution does not maintain that the sexual activity with each of the boys is identical, there are some noticeably common features. All four of the complainants say that a common feature of what the accused did to them was oral sex, masturbation of them and intercrural sex. The only exception to that common experience is that DD said there was only one episode of completed oral sex (count 10). The accused tried to commit that same act on other times but DD resisted and it was not pursued. These further observations can be made about the sexual activity itself. Both of the D brothers report the accused getting them to masturbate him. Neither MC nor AC report that happening. What they both said was that the accused used to masturbate himself in their presence. Neither of the D brothers said that that happened. Looking at it from the Crown’s point of view that would suggest a change of routine between the offences against the D brothers which occurred in the early and the late 70s respectively and the offences committed against the later two boys who were respectively MC between 1984 and 1986 and AC between 1986 and 1988. The defence suggests that it is plain dissimilarity and tends to rebut claims to underlying unity of behaviour.
There are then, among the four complainants, three “one off” incidents. MC alone alleges an act of penile/anal penetration. AC alone alleges alone digital/anal penetration. DD alone alleges that photographs were taken of him when he was naked. Again there can be seen a difference between the earlier and the later complainants. Neither of the two early complainants alleges any anal interfering but both of the later complainants do. The parallel observations about sexual activity relate to a combination of charged and uncharged acts.
The prosecution submitted that an unusual feature of the sexual offending is that on each and every occasion the accused made the complainants ejaculate before him. Mr Norman submitted in conclusion that it was objectively highly improbable that the complainants would give such similar account unless true. Adapting the prosecutor’s submission to the remark of Lord Simon of Glaisdale in Kilbourne, there is such an underlying unity between the evidence of the complainants that it makes coincidence an affront to commonsense.
The Defence Submissions
Ms Powell for the accused submitted that the global approach suggested by the prosecution as the first step is entirely the wrong approach. It is not correct to begin by looking at the evidence as a whole to see whether there is an underlying unity. Instead one should first be aware that it is similarity in a legal sense that is to be considered not similarity in the lay sense. If Y is the charged act, then what is sought to be cross-admissible must go to prove Y. If the sexual act Y is to be proved by another sexual act which is not the same thing, then that immediately calls into question whether there is truly an underlying unity between the two pieces of evidence. There is a danger that it is not underlying unity at all, it is mere propensity. Ms Powell cited para [26] of the unanimous judgment of the High Court in Phillips (supra) and asked: To what issue was the similar fact evidence relevant? It is essential at the outset to identify the issues at the trial on which the similar fact evidence is tendered, for this is central to the identification of relevance, and to the assessment of the probative force on which the admissibility of similar fact evidence depends (Hoch). What is called for, she submitted, is that one should literally go through the charged counts and identify what alleged similar facts are relevant in proof of each charged act. She submitted that that was the approach correctly adopted by the three interstate cases distinguished by Mullighan J in R v Liddy (2002) 81 SASR 22. Those interstate cases are Dick v The Queen [2001] WASCA 152, R v Riley [1997] QCA 227, R v Strickland [2002] WACCA 339 and R v Carne (1997) 194 ACrimR 249.
Ms Powell submitted that his Honour was in error in distinguishing those cases on the basis that they were “strikingly similarity” cases. That, she argued, is not a sufficient distinction. Evidence admitted on the basis of underlying unity must meet the high test of admissibility applicable to “strikingly similar” evidence. While the two labels are not synonymous the same test of admissibility applies to each. Ms Powell did not assert that the underlying unity had to apply just to the sexual acts themselves. When asked whether an underlying unity might not, for example, be found in an accused taking individual complainants to an unusual spot, she said that would be a matter of degree. Notwithstanding that the task was to identify the charged acts and require all other evidence admitted to support the proof of that charged act, Ms Powell submitted that when one looked at the chart prepared by the prosecution, one does not find an underlying unity in the offending behaviour. There is no pattern. There are some combinations in respect of counts but there is not a sufficient pattern of similarity of conduct. Ms Powell illustrated the failure to find sufficient commonality by reference to the case of Strickland (ibid). In that case there were many points of similarity, but the court held it insufficient to warrant admissibility of the impugned evidence. She said in the present case, some of the alleged points of commonality are so unremarkable that they cannot justify admission. She said you would expect paedophiles to groom in the way alleged in this case. If, as here, there are different sexual routines then there are chinks in the armour already. She conceded that one point of difference in the facts of Liddy and this case justifying the different approach in Liddy is that in that case the boys were generally, although not entirely, groomed as a group. In that way what they had to say about grooming was relevant to all of them whereas in this case what each complainant says will only be relevant to themselves. Ms Powell submitted that, except in the case of Liddy, she could find no authority where there had been multiple complainants with multiple uncharged acts and the trial had proceeded with all evidence admitted.
Ms Powell submitted that uncharged acts occurring after a charged act should not be admitted in relation to a particular complainant (see R v Beserick (1993) 30 NSWLR 510 per Hunt CJ at p 525). She submitted that the High Court case of S v The Queen was authority for the proposition that where there is an insufficiency of particularisation then uncharged acts should not be admitted. She did not assert that the charged acts of each complainant contained insufficient particularity, but that was true with the some of the uncharged acts.
Discussion
The accused really seeks severance under three heads.
1.Counts involving each complainant should be severed from the others so that there are six trials. I have already severed the single incident charges from the others and from each other. Severance is required because there is no underlying unity so as to make the evidence of the complainants cross-admissible.
2.To have excluded any uncharged acts involving a complainant where there is insufficient particularity.
3.Evidence of subsequent events should be inadmissible in proof of earlier events.
I deal with the last point first. While it is true that Hunt CJ in Beserick (ibid) held that it would be rare that subsequent offending would be relevant in aid of proof of earlier offending, His Honour did not exclude it absolutely (see page 325 C to D). In any event the High Court decision in Pfennig was delivered after that of Beserick. The similar fact evidence in Pfennig occurred after the charged offence. Pfennig is in my view, authority for the proposition that subsequent events may be relevant in proof of earlier ones.
The second submission by the accused concerns the alleged lack of particularisation of uncharged acts. R v S (ibid) was cited as the principal authority for the requirement of particularity. R v S is certainly the authority for the proposition that if a lack of particulars of charged acts leads to latent ambiguity in a verdict there is procedural error. If the lack of particularity has the effect of placing the accused in a position where he can do no more than assert a blanket denial then he will generally be denied procedural fairness. The inability of the prosecution to provide particulars will be no answer to the problem (see R v S per Dawson J at p 275).
In this case there is no allegation that the charged acts lack particularity. Each is identified in the witness statements. Each refers to a particular type of sexual activity, an identified location and an approximate time. Each has some further details sufficient to identify the occasion. What is alleged is that that particularity is absent in some of the uncharged acts. It is clear that evidence of uncharged acts is admissible to establish specific aspects of a prosecution case such as explaining that the charged act is not an isolated one and to explain the lack of surprise etc (see R v Nieterink (1999) 76 SASR 56). Necessarily those uncharged acts sometimes lack the particularity required of charged acts. That said, R v S would suggest that if an accused is forced because of a lack of particularity into a blanket denial of uncharged acts, then he has suffered procedural unfairness. The accused here has not in my view, been put in that invidious position. There is about the uncharged acts sufficient particularisation to enable him to respond with more than a blanket denial. Without repeating all of the uncharged acts alleged by each complainant, I illustrate the sort of particularity provided.
CD speaks of an incident on the only trip he took with the accused to Kangaroo Island. He alleges further uncharged acts on the same occasions as those identified as charged acts. He refers to once-only trips to the Northern Territory and The Grampians. He says acts took place weekly at the accused’s flat after CEBS meetings. He gave evidence of the frequency or infrequency of certain types of abuse. He described how the offending diminished and then finally stopped.
DD nominated the number of times the abuse occurred at the accused’s flat before the move to Cross Road. He too spoke of one-off trips to Victoria and Tasmania. He was specific about the frequency or infrequency of certain acts – mutual masturbation was “a regular thing”, oral sex occurred only once and intercrural sex occurred about 10 times.
MC was fairly specific about the type and frequency of abuse. He spoke of one-off trips to Mt Gambier and Berri.
AC spoke of specific interstate trips and the frequency and location (tent/panel van) of abuse at Kapunda.
Each complainant specified an approximate age and or year when the offending began and when it finished.
In my view the particularity of the uncharged acts in the case of each complainant is sufficient to afford the accused procedural fairness. He is in a position to respond in some detail to the allegations of uncharged acts. In addition to the uncharged acts themselves there is some further particularity about such topics as the provision of alcohol, cigarettes or pornography, the presence or absence of other people, and the nature of the occasion (eg an exploratory trip in anticipation of a camp). The nature of the sleeping arrangements is usually spelt out. In my view the accused will not be prejudiced in his defence by lack of particularity in the uncharged acts.
There is then the question of the “global” approach to the analysis of the alleged underlying unity as adopted by Mullighan J in Liddy and agreed to by Gray J. It was not the approach taken by the interstate courts in the cases distinguished by Mullighan J. His Honour’s bases for distinguishing the interstate cases is criticised. It is argued that there is an irrelevant distinction between the interstate cases being “similar fact” cases and Liddy being an “underlying unity” case. For present purposes I am not referring to the question of the threshold test for admissibility, ie the Pfennig test versus some lesser test. Instead I am referring to the approach to analysis. I my view it is inevitable that the approach will be different in the “similar fact” cases from that in the “underlying unity” cases. In the former one is comparing discrete acts to see if they have about them such a striking similarity that they cannot be explained by coincidence. In the latter one is comparing patterns of behaviour to see if there is discernable in them an underlying unity. How, but by looking at the patterns of behaviour in a broad or global sense, can one decide whether or not there is an underlying unity that cannot be explained by coincidence. I respectfully adopt the approach taken by Mullighan J in Liddy.
Ms Powell submitted that in Liddy Mullighan J held that there was a different, and lower, threshold test for the admissibility of the “underlying unity” evidence than there was for “strikingly similar” evidence. She drew attention to passages in His Honour’s judgment at pages 41.2 and 42.2 in support of that contention. Mr Norman submitted that those passages do not mean that His Honour was propounding a different threshold test for admissibility. Rather he was referring to the different onus of proof applying to charged and uncharged acts contemplated by the court in R v Nieterink (1999) 76 SASR 56. I am not entirely sure that His Honour was in fact proposing a different threshold test but I am content to accept Ms Powell’s submission that the test is no different as between the two types of similar fact evidence. They must both meet the standard laid down in Pfennig.
Notwithstanding that I take the global approach to analysing the alleged underlying unity I accept Ms Powell’s submission that an underlying unity cannot be found if there is evident only unremarkable behaviour. Certain characteristics of sexual abuse of minors will be so common that they might be regarded as the stock in trade of such offenders. Allegations of that sort are commonplace and would be easy to falsify. They could be seen as no more than coincidental. As I have earlier said it must be relatively commonplace that the place at which offending occurs will be the home, on camps or on trips. Some peripheral details of offending would seem commonplace – the grooming of various sorts by licit and illicit activities that might attract boys, the use of a towel to clean up, the rewards that are offered. The sexual offending itself does not seem to be so out of the ordinary as to make out an underlying pattern of behaviour, except for two features. The allegation of intercrural sex seems to be a matter of some distinction. Likewise the allegation by every one of the complainants that the accused made them ejaculate before he did.
There are two other features that appear to me to be sufficiently distinctive to rebut coincidence.
The first is the continuing relationship the accused had with the complainants and their families. I do not think it would be all that unusual for an offender to gain the trust of a parent or parents before offending against the child or children. What is remarkable though is that the relationship with the complainant continued, as far as it could, after the offending and likewise the relationship with the family. The post offending relationship was not casual. It was close. It involved attendance at family functions. It involved fairly regular contact.
The second unusual feature is allied to an extent with the first. It is the serial nature of the sexual relationship within CEBS. While CEBS provided an obvious opportunity to recruit new “partners” it also posed considerable risks. If the post offending relationship with a complainant was not kept going there was a real risk of a former victim noticing and reporting a later relationship. In that way the serial nature of the relationships within the organisation seems remarkable.
Ms Powell submitted that there were differences in the sexual acts alleged against various of the complainants and that those differences represent a weakening of the suggested underlying pattern. The differences are these. First, both the D brothers say that the accused got them to masturbate him. Neither MC nor AC alleges that. Each said that once the accused had masturbated them he masturbated himself. In this way a feature common to both the D brothers is entirely missing with the other two complainants and a feature common to MC and AC is missing with the D brothers.
Second, only MC and AC alleged any anal penetration. MC alleges one incident of penile penetration and AC alleges one count of digital penetration. Neither of the D brothers alleges any such incident.
Third, DD alleges that the accused only committed an act of fellatio on him once. He attempted to do so on other occasions but was met with resistance and did not pursue the matter. All other complainants speak of fellatio being a common occurrence. These differences would certainly prevent any suggestion of there being a striking similarity between the acts committed against each complainant. However, given the extent of the offending against each of these complainants it seems to me that slight variations in the pattern do not prevent there being a discernable pattern. There was one practice with both D brothers in the 70s and a different practice with the other two complainants in the 80s. That observation applies to the first two alleged differences. So far as the third is concerned, I think that DD’s resistance explains why fellatio was not completed on any further occasions although there were attempts. It is a common feature of the accused’s behaviour that he did not pursue activities which were met with expressions of pain or protest. In my view these differences do not prevent there being a discernable pattern found in the behaviour overall. The behaviour with all of them was very similar.
Having excluded concoction as a reasonable possibility, I find that these two aspects of the accused’s offending together with the two unusual features of the sexual behaviour exclude coincidence as being a plausible explanation of the evidence of the four witnesses. In my view the evidence of the charged and uncharged acts is cross-admissible.
I further find that there is no discretionary reason to decline to admit the evidence of all four complainants. The probative weight of their evidence outweighs the inevitable prejudicial effect. Specific directions will of course have to be given about the permissible and impermissible use that may be made of the evidence.
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