R v Dennis - [2010] SADC 169

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DENNIS
Criminal Trial by Judge Alone
[2010] SADC 169
Reasons for the Verdicts of His Honour Judge Rice
22 October 2010
CRIMINAL LAW
The accused was charged with eight sexual offences against two complainants - at the relevant times he was the Parish Priest for St Barbara's Anglican Church at Parafield Gardens - the charges relate to a period in the mid-to-late 1970's - charged and uncharged acts.

CRIMINAL LAW - PROCEDURE - VERDICT
With the exception of Count 2, guilty verdicts are recorded - a verdict of not guilty is recorded on Count 2.
Criminal Law Consolidation Act 1935 s 278(2a); Evidence Act 1929 s 34CB, referred to.
R v Bolte [2010] SASC 112; Longman v The Queen (1989) 168 CLR 79, considered.

R v DENNIS
[2010] SADC 169
Introduction

The accused is charged with eight alleged offences against two complainants. The charges relate to a period in the mid-to-late 1970’s when the accused was the Parish Priest for St Barbara’s Anglican Church at Parafield Gardens.
Counts 1 to 3 relate to the complainant whom I will refer to as C1; Counts 4 to 8 refer to the second complainant whom I will refer to as C2.
At the relevant times, C1 was aged between about 14 and 16 years. His date of birth was 17 January 1962. C2 was aged between about 14 and 15 years. His date of birth was 28 May 1963.
Both complainants were part of a Church Youth Group organised by the accused. The complainants knew each other from the Youth Group. St Barbara’s Church Youth Group met at a place known as the “Church house” on the corner of Salisbury Highway and Lamorna Parade at Parafield Gardens. The meetings of the group would usually be on a Friday night, commencing at about 6.30 p.m. and finishing at about 9.00 p.m.
The Charges
Count 1, an indecent assault, is alleged to be an act of masturbation of C1 by the accused while they were in the accused’s car. The occasion was one when the accused and C1 were out in the accused’s car for the purpose of delivering church newsletters.
Count 2, also an indecent assault, is alleged to be a grabbing of C1 in the groin area and a rubbing of his penis on the outside of his trousers by the accused. The occasion was one when C1 was having one-on-one Bible classes with the accused in preparation for his Confirmation. The offence is said to have taken place in the accused’s office within St Barbara’s Church.
Count 3, an unlawful sexual intercourse in the form of fellatio, is alleged to have occurred at the accused’s house at Vale Park. On this occasion, C1 was staying the night at the accused’s house, as was the second complainant, C2. A similar offence is alleged to have occurred against C2 on this night (Count 7). It was alleged that maybe one or more other boys stayed this night at the accused’s house.
Count 4, an indecent assault, is the first offence alleged in respect of C2. The indecent assault is alleged to be an act of masturbation by the accused of C2 on an occasion started by the accused giving C2 a massage.
Counts 5 and 6 are said to have taken place on the same occasion. Count 5, also an indecent assault, is alleged to be an act of the accused rubbing himself against C2 on the accused’s bed at his house. Count 6, an act of fellatio, is alleged to have followed on from Count 5.
Count 7 is referred to above and relates to a sleepover at the accused’s house by a number of boys (part of Count 3 mentioned above).
Count 8, unlawful sexual intercourse in the form of fellatio, is alleged to have taken place at the accused’s house on the night of the 1978 SANFL Grand Final between Sturt and Norwood held on 30 September 1978.
Defence Case
The accused gave evidence on oath denying each offence. I give him credit for adopting a course that he was not bound or obliged to adopt. I am able, depending on my assessment, to accept some of the accused’s evidence and reject other parts.
The issues in this case do not centre upon the finer aspects of the alleged offences. The broad contest is whether the prosecution has proved its case beyond reasonable doubt on any of the charges.
The defence case is that these events simply did not happen.
The accused having given evidence, one of the considerations is his honesty and credibility. Even if I reject the accused’s evidence, that does not mean the charges are proved. The question would remain whether the prosecution had proved its case beyond reasonable doubt. Any lie told by the accused is not able to be used as consciousness of guilt. Any lie is only relevant to the accused’s honesty, credibility and reliability.
General Legal Directions
The prosecution must prove its case beyond reasonable doubt in respect of each count before a finding of guilt could be made. There is no obligation upon an accused to prove or show anything. The burden or onus of proof rests from beginning to end on the prosecution. The presumption of innocence operates in the accused’s favour unless and until his guilt is proved beyond reasonable doubt in respect of any count or counts.
I am able to accept some of the evidence of witnesses for the prosecution and reject other parts. It is only stating the obvious that the prosecution case, realistically, rests on the evidence of C1 and C2. Their evidence must be scrutinised with great care and should not be acted upon unless I am satisfied, beyond reasonable doubt, as to its honesty, accuracy and reliability.
The evidence of C1 and C2 came under sustained attack during the course of the trial. Their honesty, accuracy and reliability were questioned. I indicate that I regarded C1 and C2 as honest witnesses. Their accuracy and reliability are discussed below. I am conscious of the problem that either C1 or C2 may be shown to be inaccurate in one or a number of ways such that, even though honest, particular evidence may not be able to be acted upon or other evidence may, consequently, not be able to be acted upon.
Separate Consideration
Each count on the Information must be considered on its individual merits. The verdicts may be all the same or a mixture. Having said that, as is noted above, Counts 3 and 7 are alleged to have occurred on the same occasion, are factually inter-related and, realistically, the verdicts should be the same. If I have a doubt in respect of one complainant, that may reveal or lead to a doubt in respect of the other complainant as to those two counts.
Joinder
There was no application for separate trials as to the counts or complainants. In any event, I considered they should be heard together, there being a factual nexus, and Counts 3 and 7 relate to the same occasion and are separated only by a relatively short period of time.
Quite apart from those considerations, the Information was filed on 10 August 2009 and is therefore captured by the operation of s 278(2a) of the Criminal Law Consolidation Act 1935 (“the Act”).
The joinder is amply justified on the usual bases and no question of propensity arises. However, in any event, I make it plain that I have approached the case on the basis that propensity reasoning has not been applied. That is, even if it is shown that the accused committed an offence, any other conviction is not on the basis that he is the sort of person who would commit that offence or that he is more likely to do so.
Uncharged Acts
Quite apart from the charged acts, the prosecution led evidence of other alleged sexual acts between each of the complainants and the accused.Some of the uncharged acts lacked any real particularity and were, therefore, inadmissible in support of charged acts relating to that complainant. For that reason, I have excluded them from my consideration of the charges.
I also make it plain that I do not use an uncharged act upon which I can potentially rely unless I am satisfied it occurred. Such a degree of proof is demanded because it is only an exercise of the prosecutorial discretion whereby certain acts are charged and certain acts are relied upon as uncharged acts. In that situation, in my view, charged and uncharged acts need to be proved to the criminal standard. I have not used any proved uncharged acts to bolster any charged acts that do not otherwise meet the criminal standard.
Use of proved uncharged acts
It is not helpful to talk of proved uncharged acts simply as providing a background or context against which the charged acts were allegedly committed. Their purpose needs to be specifically identified in terms of relevance to the issues.
The uncharged acts that preceded any of the charged acts go to explain why the complainant did not immediately, or within a reasonable time, complain to someone about the accused’s conduct. Further, it may show the charged conduct was not without precedent or did not “come out of the blue” and the accused could, therefore, be confident about his silence.
Cross-admissibility
Cross-admissibility is not an essential pre-condition for joinder of Count 7: R v Bolte[1]. Leaving propensity to one side, s 278(2a) of the Act now provides a much lower threshold for admissibility than was previously the case. The evidence must now only exhibit that it is “relevant”, not that it is highly probative of an issue. In my view, evidence in support of one count is relevant and able to be used in proof of another count.
[1] [2010] SASC 112, para 6
I have no doubt that the accused’s conduct towards each complainant on the charged acts was part of a pattern or system of offending against them. It commenced by developing a relationship with each of the boys in the course of his ministry at St Barbara’s Anglican Church at Parafield Gardens. He gained their trust and confidence such that he knew there would be no complaint from them. They were young, emotionally immature and prepared to undertake sexual experimentation.
The two complainants, plus others, would sleep over at the accused’s home and were allowed to drive his car when they had their “L’s”. Importantly, the accused had developed the trust of the parents of each of the boys.
Delay – Forensic disadvantage
This Information being dated 10 August 2009, the relevant directions are now governed by s 34CB of the Evidence Act, 1929. Sub-section (1) states as follows:
(1) A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
See Longman v The Queen[2].
[2] (1989) 168 CLR 79
Quite what is meant by “of a kind” known as a Longman warning is uncertain. Longman’s case involved legislation in Western Australia doing away with the requirement to warn the jury that it is unsafe to convict on the uncorroborated evidence of the alleged victim.
The next point to be made is that the sub-section abolishes the obligation to give a normal Longman warning (whatever that may mean). That does not, however, negate the operation of Longman’s case in other respects. Whilst Longman’s case involved a very significant delay, the principles otherwise referred to are of general application. Apart from the special rule of practice then under consideration,
... the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.[3]
[3] Longman v The Queen (1989) 168 CLR 79, pp 86-87
Leaving these considerations aside, sub-section (2) requires the trial Judge, in a normal jury case, to give it a particular direction in terms of sub-section (3) if the Judge considers delay has resulted in a -
significant forensic disadvantage to the defendant …
Although it is problematic whether I need to give myself such a direction as required by sub-section (3), nonetheless I do so because the accused has suffered a significant forensic disadvantage. These allegations came to light about 30 years after they were alleged to have happened. Memories of witnesses and the accused have faded or been lost, not to mention the accused’s lost opportunity to find other witnesses who may have been able to give him an alibi or vouch for his conduct.
I take that forensic disadvantage into account when scrutinising the evidence. In that vein, I indicate that I have scrutinised the evidence of C1 and C2 with great care and do not act on it unless satisfied as to both its honesty and reliability.
Legal ingredients of these charges
There are four counts of indecent assault. An indecent assault for these purposes is a deliberate touching in circumstances of indecency. An accidental or unintended touching in circumstances of indecency is not sufficient. Whether a deliberate touching is indecent depends upon whether it is a touching by contemporary community standards.
Importantly, however, it was not until 2 October 1975 that an amendment to the Act enabled an indecent assault to be committed on a male. In relation to unlawful sexual intercourse, the relevant date is 9 December 1976.
Concerning Counts 1 and 2, I would need to be satisfied that the alleged events occurred after 2 October 1975.
Concerning Count 3, I would need to be satisfied that C1 had not turned 17 years of age. He turned 17 on 17 January 1979. As for the counts involving C2, he turned 17 on 28 May 1980. I would therefore need to be satisfied that the alleged events occurred before that date.
Complainants – general comments
I find that each of the complainants was an honest witness; each was doing his best to give an honest and truthful account of what occurred. There are, fairly obviously, further considerations that need to be brought to bear before I could find any charge proved, not the least of which are the reliability or accuracy of their evidence, the evidence of the accused and his witnesses.
I make it abundantly plain that, in reaching that view, I have had regard to various arguments upon which Mr Niarchos made submissions. Lest there be any doubt, I find there was no fabrication by the complainants.
I have also taken into account that any ‘not guilty’ verdicts reflect upon the reliability of the complainant concerned on other counts.
Evidence of the accused
Although there was no onus on the accused to prove anything, not only did I find his evidence not convincing, I found it to be deceptive, evasive and unconvincing, particularly in cross-examination. I reject his evidence where it differs from either of the complainants upon any issue of substance.
Count 1
As mentioned, this count (indecent assault) alleges an act of masturbation of C1 in the accused’s car when they were both in his car delivering church newsletters. This was identified by C1 as the first occasion of such conduct. C1 said they were parked on what was then a private road close to what is now Centro Hollywood Plaza at Salisbury Downs. C1 said the car stopped and the accused initially rubbed C1 on the outside of his pants, then unzipped C1’s pants, pulled out his penis and was rubbing it. C1 said the accused then masturbated himself to the point of ejaculation.
The accused denied any such incident occurred (TP321).
It is necessary to make a finding as to when this occurred. C1 identified this occasion as about a month after first going to the Youth Group. The evidence establishes that the Youth Group commenced at St Barbara’s sometime after the commencement of church services, the latter starting on 5 October 1975. I find, therefore, that these events occurred after 2 October 1975, being the date of the amendment to the Act making this conduct an offence.
I find Count 1 proved. I record a verdict of “Guilty”.
Count 2
Count 2, also an indecent assault, consisted of the accused allegedly rubbing C1’s penis on the outside of his trousers. This count was opened and particularised on the basis that it took place in the accused’s office at St Barbara’s Church in the context of a one-on-one Bible lesson in the lead-up to the Confirmation of C1. The classes were held over a two to three week period and the occasion was a couple of weeks before the Confirmation date of 3 November 1977.
The difficulty with this count is that C1 was significantly inconsistent about the occasion of this offending, particularly whether it was a Bible class or as part of an attendance for the Youth Group. Added to that, C1 said there were numerous touchings of that type whenever the accused had the chance. Although I am satisfied occasions like that occurred a number of times, I am unable to be satisfied on the identified occasion. A conviction on this count would, in my view, be bad for uncertainty.
I am not satisfied about this count and record a verdict of “Not Guilty”. The accused said no events like this occurred.
Counts 3 and 7
As mentioned, Count 3 is an alleged act of fellatio upon C1 on the same occasion as an alleged similar offence on C2 (Count 7). The occasion was identified by C1 as a time when he and others stayed the night at the accused’s house. C1 said C2 was there along with another boy LJ and possibly another.
C1 said this was the last of the charged acts, when he was aged about 14 and certainly not as old as 17.
C1 said that, on this occasion, the three youths slept in a large double bed and were called into the accused’s bedroom one at a time. The offending commenced with masturbation of C1 which progressed to fellatio (TP39-40). C1 expressly said that LJ was also called into the accused’s room. C1 said he was not the first, but could not remember whether he was the second or third (TP87‑88).
C2 describes a similar occasion with C1 being present and, he believes, LJ. C2 describes them sleeping on the floor in the lounge room, not all in a double bed as C1 says. C2 said that C1 went in for 15 to 20 minutes and then he, C2, went in (TP141-142). C1 seemed unsure if LJ was there although he believed he was and his description of the events included LJ (TP168, 195-197, 203).
I find that C1 and C2 were giving evidence about the same occasion.
LJ was called on behalf of the accused. He denied any occasion of sexual offending by the accused. I did not find LJ to be an impressive witness. He displayed a clear bias in favour of the accused and against C1. I considered that he was significantly discredited during the cross-examination, particularly having regard to his convictions for indecent assault. If LJ was present on this occasion (about which there is some doubt), I reject his evidence. The accused admitted LJ was still one of his closest friends (TP328).
I have considered the arguments put by Mr Niarchos in his final submissions. The accused denied this incident or anything like it (TP322, 325).
Having listened to both C1 and C2 give evidence over about a day of evidence by each, I am satisfied that each was telling the truth and reliable. I have had regard to the way in which each gave evidence, their presentation, spontaneity, caution, explanations and concessions.
I find Counts 3 and 7 proved. I record convictions on those counts. I make it plain that I reject the denials of the accused.
Count 4
This is the first count involving C2 and was the first visit by him, on his own, to the accused’s house. He gave a very detailed description about how the accused gave him a massage commencing around his neck and shoulders but progressing to the lower part of his body and masturbating him to ejaculation (TP124-125, 141). Afterwards he felt ashamed, disgusted and awkward (TP125, 141, 179-180).
As to the timing of this event, C2 said it happened within a month of his move to Vale Park (in the same street where the accused lived), which was agreed to be 25 January 1978. Acts such as these that were alleged against the accused were an offence at that time.

The accused denied the offence.
For the reasons I have already expressed, I accept the evidence of C2 as both honest and reliable. I reject the denials of the accused.
Counts 5 and 6
The evidence relating to these two counts arises from the one occasion. Some weeks after the events surrounding Count 4, C2 was at the accused’s house. C2 said there was some conversation about sexual matters as a result of which he, C2, became aroused. C2 then said (at TP138-139):
A. We – Father Dennis – I cannot recall exactly what led up to it but I remember standing in the – near the doorway at the entrance to the hall from the lounge room and Father Dennis brought up about the half height of your body is up under your groin and he got a tape measure, got it out and measured from the floor up to my groin to basically prove that that’s your halfway point. And when he was up around my groin he was feeling around there and then it headed to the – we headed to the bedroom.
C2 described the accused feeling around C2’s genital region. C2 went on (TP139-140):
Q. Then what happened?
A.I was aroused and he said to come down to his bedroom, which we did. And we took our clothes off, got onto the bed, what I recall, he was rubbing up against me, rubbing his hands all over my body and rubbing face-to-face on the bed.
Q.You said that you took your clothes off, did you mean all of your clothes or some of your clothes.
A.All of my clothes.
Q.What about Father Dennis.
A.He did the same.
Q.You were both naked.
A.Yes.
Q. You said ‘face-to-face’, can you describe what you mean by that.
A.We were lying on the bed with our fronts of our bodies together and he was rubbing his hands all over my body.
Q. And.
A.And then he started to masturbate me and performed oral sex.
Q.Before he masturbated you and performed oral sex and when he was rubbing his hands all over your body, you said you were lying face-to-face, your fronts of your bodies facing each other. Where were your genitals in relation to his?
A.Against his.
C2 then said he ejaculated while being given oral sex. The accused then ejaculated into a handkerchief.
In cross-examination he expanded on the preliminary conversation, saying it was he, C2, who raised the question whether the accused had had sex with a woman (TP184-187).
It was suggested to C2 that these events never happened. He was adamant they did (TP186‑187).
As before, I find this a very compelling description. I accept that evidence and reject the accused’s denials. I find C2 was less than 17 at this time.
I find these charges proved. I record convictions on both counts.
Count 8
This is the only count where there is a really identifiable date upon which the events are said to have occurred.
C2 said that he went with his parents to the 1978 Grand Final which Norwood won by a point. The events of this count are said to have occurred the night of this Grand Final, which is agreed to have been on 30 September 1978. C2 was then aged about 15 years and 4 months. C2 said this about it (TP143‑144):
Q.What happened after the game.
A.Got home, I had tea and I went down to Father Dennis’s house. He lived across the road from – directly across the road from Bob Hammond, who was the Norwood Football Club coach. Father Dennis put up some red and blue lights at the end of the street, we were waiting for the players to return late that night and so that’s why I went down there, hoping to meet some of the players.
Q.So you had an understanding that the players were going to be returning to Bob Hammond’s house, did you.
A.Yes.
Q.What gave you that understanding.
A.Father Dennis said they probably would be, that’s why he’s put the lights up.
Q.What happened when you got to Father Dennis’s house.
A.Much the same again, we sat around talking, more than likely had a cup of tea, and probably late – reasonably late in the evening Father Dennis and myself, in his bedroom, again on the bed, once again, same thing, we were naked, he was rubbing himself against me, masturbating me and performing oral sex. After I ejaculated in his mouth we waited in the lounge room again for the players to come. I was tired and I fell asleep. I remember waking up in the morning and asked Father Dennis if the players had come back and he said they had and that’s about all I can remember of that day.
Q. I’m sorry, did you say in which part of the house that incident occurred.
A.In the bedroom.
Q.He masturbated and performed oral sex on you.
A. Yes.
Again the accused denied any such incident (TP213-214, 325-326, 365‑367).
Significantly, the accused acknowledged that some of the players could have returned late in the evening (or the early hours of the morning) to the coach’s house to continue the celebrations. This is consistent with what C2 said he said which, I infer, was a means of securing C2’s continued presence.
Again I find this evidence of C2 as compelling and I accept it.
I reject the accused’s denials and find the charge proved. I record a conviction on this count.