R v Deligiannis No. DCCRM-02-457

R v Eleftherios Deligiannis
[2003] SADC 155
Judge Clayton
Criminal

Eleftherios Deligiannis is charged with seven counts of unlawful sexual intercourse contrary to section 49(3) of the Criminal Law Consolidation Act 1935. The particulars of the offence allege conduct between 16 November 2001 and 19 November 2001, at his home at Paralowie, with a male person of the age of 15 years.
If I accepted the evidence of the accused, I must acquit him of the charges. If I do not accept the evidence of the accused, I cannot convict unless I find that each element of each of the charges has been proved beyond reasonable doubt.
At the time of the alleged offences, the accused was a man in his early 60’s. He is a migrant from Greece and gave his evidence with the assistance of an interpreter.
The accused and the victim met on a train in the Salisbury area. Their respective versions of the events following their meeting are so disparate that a meaningful comparison of the events described by each of them is impossible.
Count one relates to an incident said to have occurred on Friday, 16 November 2001. It is alleged that the victim placed his penis inside the anus of the accused. Count two is alleged to have occurred on the same day when the penis of the accused penetrated the anus of the victim.
Counts three to six inclusive are alleged to have occurred on Sunday 18 November 2001. Count three involves an allegation that the victim placed his penis in the anus of the accused, count four alleges an act of fellatio during which the accused placed his penis into the mouth of the victim, count five alleges the penetration of the anus of the accused by the penis of the victim and count six alleges the penetration of the anus of the victim by the penis of the accused.
A seventh count relating to events on Monday, 19 November 2001, was not proceeded with because the evidence given by the victim was inconsistent with the particulars that had been provided.
For reasons which I discuss below, I accept the evidence of the victim and reject the evidence of the accused.
The Elements of the Offence
The elements of the offence are, first, that the accused had sexual intercourse with the victim on the occasions alleged, secondly, that the victim was under the age of 17 years at the time and, thirdly, that the accused was aware that the victim was under the age of 17 years.
The Age of the Victim
There is no issue about the age of the victim. He gave evidence himself that he was 17 at the time of giving evidence, having been born on 11 July 1986. His father gave evidence and his birth certificate was tendered. I find that he was aged 15 years at the time of the alleged offences.
Knowledge of the Age of the Victim
I find that the accused knew the age of the victim. I accept the evidence that the victim told the accused that he was going to school. I also find that the accused asked his age and the victim told him.
The Question to be Determined
The issue in the case is, therefore, whether I am satisfied beyond reasonable doubt that the evidence of the victim establishes the commission of each of the six offences. The fact that I am not prepared to accept the evidence of the accused does not mean that I must find that the prosecution has proved the commission of the offences. I must be satisfied that the prosecution has proved each of the six counts beyond reasonable doubt.
The Credibility of the Accused
Generally the evidence of the accused lacked credibility. He presented a most unlikely story. He was a poor witness. There was no corroboration of his evidence and his sequence of events did not hang together. There are also specific contradictions of his evidence which cause me to find that the accused was not a credible witness.
The victim gave evidence that the accused told him that he was a preacher. The accused denied saying that. The victim’s father also gave evidence that the accused telephoned him and introduced himself as a minister of the Orthodox Church. He remembered that because it caused him to look on his son with some pride. I find that the accused did describe himself to the victim and to the victim’s father as a minister of religion. That is not relevant to the commission of the actual offences, but it is a matter which indicates the way in which the accused befriended the victim. The denial of the accused that he described himself as a preacher goes to his credibility.
An objective fact is that the accused gave evidence that the victim had worked in the garden at his home. When the father of the victim inspected the premises, there was no sign of any gardening having been done.
Scientific evidence about semen stains on bed sheets in the accused’s bedroom is beyond criticism. That evidence is corroboration of the evidence of the victim. It is not explained by the accused. Other semen stains on the bed sheets, which could not be identified, also indicate sexual activity, but because of the lack of identification they do not advance the case.
Evidence which the accused gave about changing the sheets on his bed on Thursdays was confused and unconvincing. On the accused’s evidence, the only day on which the victim had been in his bedroom was a Wednesday. If that was the case, the sheets should have been changed on the following Thursday. The sheets would have been changed prior to them being seized by the police on Tuesday, 19 November. When interviewed by the police, the accused did not mention his claim that the victim had watched a pornographic video in the bedroom and an act of masturbation which was suggested by his counsel in cross examination.
The accused gave evidence that he was incapable of obtaining an erection and had not engaged in intercourse for a number of years. The evidence was not supported by medical evidence. The evidence was introduced into the case in a way which was opportunistic and lacked sincerity. The evidence is inconsistent with the fact that an open packet of condoms was found by the police in a chest of drawers in the main bedroom of the home of the accused. There is no evidence that any other person shared the bedroom.
The accused gave evidence that he was very angry when the victim watched pornographic videos in his home. He described that as the dirtiest thing that had been done to him in his life, yet, shortly afterwards, he gave the victim gifts and purchased the ingredients for a barbecue to which the family of the victim had been invited. The number of pornographic tapes found in his house can not be reconciled with the accused’s claim that the act of playing of a pornographic tape, by itself, made him angry.
The explanations given by the accused for the pornographic video tapes, a Gay Times newspaper, a jar of Vaseline and children’s underwear found in his home, were illogical and unconvincing.
The explanation for the presence of the pornographic video tapes was that they were brought by a friend, kept for friends and that they were packed in a box and sent to Adelaide. He claimed that they were the dirtiest things in his life and that he had made efforts to destroy them. However, pornographic tapes were spread throughout his house. He claimed that visitors from Melbourne had mixed them up. He described unsuccessful attempts to destroy them. His evidence about hitting them with a hammer and purchasing a gas gun is farcical and unlikely. The accused suggested that video tapes remained in his house because they were indestructible and incapable of being burnt. If he had been serious about disposing of the tapes, he could easily have removed them from his house or disposed of them in any number of ways. One tape was found in a VCR player. The inference is that it had been played. The evidence of the accused that the tapes were watched only by visitors from Melbourne who went to his house for the purpose is most improbable, particularly in the light of his evidence that the act of the victim in watching a tape was a terrible event that made him angry.
I accept the Crown’s submission that the explanations of the accused with respect to the tapes assist with the overall assessment of the credit of the accused. The evidence of the accused that he had no interest in watching any video tapes himself does not sit well with the fact that there were two video recorders in use in his home. His assertion that he did not watch video tapes because of the state of his health does not ring true.
The Case of the Accused
The evidence of the accused as to the development of his relationship with the victim is quite different from the evidence of the victim.
The victim gave evidence of a relationship which was confined to five days. The evidence of the accused was that he met the victim on a train and they next met two weeks later. He said they then met three weeks after that one Friday afternoon and then met on the following Wednesday when the victim arrived at the accused’s home at about 3.30 pm and weeded for forty minutes. The accused said on that day he found the victim in his bedroom watching a pornographic tape. He claimed that the victim had done “one of the most dirty things”. On the evidence of the accused the relationship extended over more than five weeks.
In cross examination of the victim, counsel for the accused suggested that the victim never had sex with him and that the victim approached the accused because he saw him “As a source of money, food and to relieve the boredom”, and as a soft target. The evidence of the accused departed from that of the victim by so much that there was no joinder of issue on the details. For example, the accused gave no evidence of any visit by the victim on Friday, 16 November, Sunday, 18 November, and on Monday, 19 November, the days when the offences were alleged to have occurred.
Most importantly, the accused denied that he ever had sex with the victim.
The case of the accused was that the evidence of the victim should not be believed.
The Credibility of the Victim
Counsel for the accused criticised the evidence of the victim for several reasons.
It is important to put the evidence of the victim into perspective. The offences occurred about two years ago. The victim was then aged about 15 years and attended a special school for children with problems. There are inconsistencies in the victim’s evidence. Also, his evidence as to count seven was the reverse of the complaint. The information alleged that the accused had anal sexual intercourse with the victim, but the evidence of the victim was that he had placed his penis into the anus of the accused. The evidence of the accused does not line up precisely with the history recorded by Doctor Settle of the Child Protection Services Branch at the Women’s and Children’s Hospital. There is an inconsistency between the evidence of the victim and the evidence of his father about the gift of a watch to the victim by the accused.
Counsel for the accused described as preposterous the victim’s evidence that on an occasion when he was not sexually excited and was feeling terrible, he was able to take an active role in anal sex. Counsel queried how a man could get an erection without being sexually excited, and described as preposterous the victim’s evidence that he did not know whether he ejaculated or not.
Counsel for the accused submitted that it is not possible to exclude count seven from the general body of evidence and that the unacceptability of the evidence of the victim as to count seven meant that none of the victim’s evidence could be accepted.
Given the age of the victim and the number of events that took place between Friday, 16 November and Monday, 19 November, I do not find the discrepancies in the evidence of the accused to be unusual. Nor do I find it fatal to the prosecution case that the victim had told doctors that there had been oral sex on both 18 and 19 November which was inconsistent with his evidence.
Notwithstanding the criticisms of details in his evidence, I accept the evidence of the victim as to the essential ingredients of the offence. Allowance should be made for his age, the fact that he was disadvantaged and the events occurred almost two years ago. He presented a credible story which was corroborated by the evidence of his father and other objective evidence. I have no reason to believe that the victim did anything other than attempt to tell the truth.
The father’s evidence that the accused told him that he was a minister of the Orthodox Church corroborates the victim’s evidence that the accused had told him he was a preacher.
Counsel for the accused submitted that the repeated trips made by the victim to the home of the accused are inconsistent with the victim’s evidence that he was frightened, forced to have sex and disgusted by what occurred. Although it does not form any part of the offence, I have no doubt that the victim was a willing participant in the activities that occurred. I think the evidence of the victim was coloured by his embarrassment about what he had done and because of his knowledge of his parents’ attitude towards homosexuality.
Counsel for the accused challenged the credibility of the victim on the basis that he said he did not know whether he ejaculated or not when there could be no doubt that DNA testing ascertained the presence of his semen on bed sheets. I do not think that evidence is a reason to disbelieve the victim. If he gave evidence that he did ejaculate that would only have corroborated his story.
The evidence that the victim’s semen was found on the bed sheets of the accused’s bed establishes that the victim had been involved in some sexual activity in the home of the accused.
Counsel for the accused attempted to explain the presence of semen of the victim on his bed sheets by cross examination which suggested that the victim had masturbated on the bed whilst watching a pornographic video. That cross examination was based upon speculation. The victim denied the assertion. There was no evidence to suggest that the victim had masturbated. The most likely explanation for the presence of the victim’s semen on the sheets of the bed of the accused is that the semen was deposited during the course of the acts which constitute the offences. I find that the presence of the victim’s semen on the sheets corroborates the evidence of the victim.
The way in which the offence came to light is significant. The victim only related what had happened to his parents after he had been pressed. When interviewed by the police on the same day, he was able to give a detailed description of the events of the preceding five days, including the acts which are alleged to constitute the offences.
There are minor discrepancies in the evidence of the accused such as the evidence about a watch. However, I do not regard them as a reason not to accept the evidence of the victim as to the essential elements of the offences.
The evidence of the victim is corroborated by the objects which were found during the police search of the accused’s home on the night of Tuesday, 20 November 2001. The victim had told the police about video tapes and a lubricant. The police search located pornographic videos which were consistent with videos described by the victim and a lubricant.
The fact that the victim correctly mentioned a scar on the accused’s stomach corroborates his evidence.
The victim gave evidence that he and the accused had watched gay videos. He described scenes. Detective Casey viewed the video tapes found in the house and was able to identify the two video tapes that the victim had referred to. One gay movie was called “Klaionea” and the other video described by the victim was called “Ladies of the Night”. The evidence of Detective Casey as to the contents of the tapes corroborates the evidence of the victim. Also, other items found by the police during the search of the home of the accused corroborate the evidence of the victim. Those objects were children’s underwear, massage oil, two video recorders, pornographic tapes, Vaseline, a Gay Times newspaper, condoms, a sheep skin rug and massage cream.
The victim gave his evidence in a clear and descriptive fashion. It was a detailed narration of events which extended over about five days. Cross examination did not provide any reason to doubt the victim.
Findings of Fact
I accept the evidence of the victim. On the basis of his evidence I make the following findings of fact.
The accused and the victim met on a train on Thursday, 15 November. They had a discussion about sex. The accused asked the victim whether he had sex with boys. The accused spoke about people who came up to him and asked him for sex. They discussed the accused having sex with other people. An arrangement was made to meet the following day, Friday, and for the victim to go to the home of the accused to have a barbecue and a chat.
On Friday, 15 November, the victim did not attend school and he met the accused at the Salisbury interchange. They travelled by bus and on foot to the accused’s home. On arrival they went inside and the accused requested the victim to take off his shoes, which he did. The accused invited the victim to sit on a couch. They started kissing and hugging. The accused played a video tape which he took from the bottom drawer of the cupboard on which the television was placed, and showed what the victim described as “A boys and girls … porno video”. The victim was able to recall one scene which involved a man and two girls and a scene which took place in a toilet. A video tape seized at the accused’s home contained such a scene. While the video was playing, the accused hugged and kissed the victim. The accused asked whether the victim would like a massage. The victim accepted and was invited to go into another room and to take off his pants. The victim was reluctant and the accused tried to pull his pants down. After his pants were removed the accused invited the victim into the bathroom and washed his feet. The victim then went into another room to replace his pants but they had gone. At the request of the accused, the victim again sat on the couch. The accused said “It’s only me and you, no-one else”. They watched the video tape again then returned another room. The victim was wearing a t-shirt and his jocks. The accused undressed, put a blanket down, obtained some oil, laid down and asked the victim to give him a massage. The victim massaged his shoulders. The accused requested the victim to take off his underwear. He had already removed his t-shirt in expectation of a shoulder massage. The accused massaged the victim, massaged his back then flipped him over to massage the victim’s front. The accused placed the penis of the victim into his anus. That evidence establishes count one. The evidence of the victim was that as his penis was entering the anus, the accused gave the impression that it was hurting him. There was a discussion about a rash that had developed on the chest and face of the victim.
Then the accused requested the victim “To get into the doggy style position”, that is, with his knees on the ground and hands held with arms bent in a way so that the victim could not move. The accused then placed his penis into the victim’s anus until he ejaculated. The victim then got up and went to the toilet. That evidence establishes count two.
When the victim returned, the accused was in the kitchen preparing food. A conversation took place and the accused said he loved the victim and that the victim was “His kid”. After they started eating, while they were at the table, the accused played a gay video showing two boys. After watching the video the accused went into his bedroom and showed the victim some underwear for little children, some of which he offered to the victim. They then walked back into the lounge room where the accused kissed the victim and they laid down on the floor. The accused again said he loved the victim and was glad to have met him. The victim asked for his pants back but the accused wanted him to stay. However, the victim was anxious to see a concert. He obtained his pants, put them on and left. As he was leaving the accused gave him $50 which he used to travel to and enter the concert.

I accept all of that evidence of the victim. That evidence describes two acts of penetration on Friday, 16 November 2001.
On the basis of that evidence, I find that counts one and two have been proved beyond reasonable doubt.
On the following Sunday, 18 November, the victim attended church and then went to the accused’s home. By that time the victim’s father and the accused had spoken on the telephone and arranged for the victim to help in the accused’s garden.
On arrival at the accused’s home, the victim removed his shoes and entered. The accused said “The more and more I see you the more I love you”, and “I’m falling in love with you”. They ate food while sitting on a couch and had a conversation about the victim moving to Darwin with the accused when he was older. The victim started crying. The accused said “Don’t cry baby”. They went into the bedroom. The accused pushed the victim onto the bed and put a cream on the accused’s anus and the penis of the victim which the accused then placed into his own anus. That evidence establishes count three.
After that, the accused pushed the victim’s head onto his penis and an act of fellatio occurred. The penis of the accused went into the mouth of the victim. That evidence establishes count four. The victim was undressed. He struggled to avoid contact with the penis of the accused. The accused manoeuvred the victim into a position on the bed and the victim’s penis went into the anus of the accused. That evidence establishes count five. After that occurred, the accused’s penis went into the anus of the victim. That evidence establishes count six. The victim dressed and they walked into the lounge. The evidence described four acts of intercourse on that day. Penetration occurred in each case.
In cross examination the victim said that the accused did not just put his penis in the crack between the cheeks but pushed it right up the hole, that is, the anus, quite far. He said the same thing happened when he put his penis into the accused. The evidence establishes that penetration took place.
The accused and the victim had a further discussion while sitting on the couch. Then the accused gave the victim two stubbies of beer, a cauliflower, some onions, some jocks and $20. On that day the victim did not do any gardening. As he was leaving, the accused told the victim to show the gifts to his parents to show that he had not done the gardening, which was the justification for his visit to the accused’s home, for nothing. On the basis of the evidence of the victim, I find that counts three to six have been proved beyond reasonable doubt.
The Discovery of the Offences
The victim’s father gave evidence that over the weekend the victim had not been his usual self. He moped around and hardly left his room. On Monday, 19 November, the victim was out of sorts. The victim was not his normal self and retired to his room. That caused the father to speak with the victim. I find that evidence of the father corroborates the victim’s evidence that he had visited the accused. Although count seven has not been proceeded with, the evidence still stands. I find that the victim did visit the home of the accused on Friday, 16 November, Sunday, 18 November, and Monday, 19 November.
The father said that when the victim returned home on Sunday, 18 November, with gifts, that caused him to know “Straight away there was something wrong, because there is no way a person will hand over small undies to give to their family at all”.
On Tuesday, November 20, the victim’s father drove past the accused’s home. The victim told him that he had mowed the lawn, but the father noticed that the lawn had not been mowed. That caused him to become suspicious. On his return home he went to the bedroom, confronted his son and asked, “What was going on with him and Terry”. The victim at first denied that anything had occurred; however, shortly afterwards the victim called his father back and said, “Dad you’re right”. He told his father that the accused, “stuck his dick up his bum”. Initially, the victim did not wish to call the police but he later changed his mind and a report was made.
Verdict
Having accepted the evidence of the victim I find that each of counts one to six have been proved beyond reasonable doubt.
On each of counts one to six I find the accused guilty as charged.

[2003] SADC 155

31 October 2003