R v Dennis
[2009] SADC 103
•1 October 2009
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DENNIS
[2009] SADC 103
Reasons for the Verdict of His Honour Judge Tilmouth
1 October 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused found not guilty of three counts of indecent assault and one count of gross indecency, but found guilty of one count of carnal knowledge.
Criminal Law Consolidation Act Amendment Act no. 94 of 1972 s 3; Criminal Law Consolidation Act 1935 (SA) s 69(1)(b) & (c); Criminal Law Consolidation Act Amendment Act no. 66 of 1975 ss 55(1)(a), 55(2)(a)(b); Criminal Law Consolidation Act s 69; Criminal Law Consolidation Act s 69(2); Criminal Law Consolidation Act s 76A; Criminal Law Consolidation Act Amendment Act no 98 of 1985 s 5; Criminal Law Consolidation Act Amendment Act no. 14 of 2003; Woon v The Queen (1964) 109 CLR 529; Petter and Maiden v The Queen (1991) 173 CLR 95; R v Dossi (1918) 13 CrAppR 158; R v Pfitzner (1976) 15 SASR 171; R v Dean [1932] NZLR 753; Brown v The King (1913) 17 CLR 570; R v E (1995) 89 A Crim R 325, referred to.
R v Robinson and Tiplady (1985) 123 LSJS 37; R v Leeson (1968) 52 CrAppR 185; R v PMT (2003) 8 VR 50, applied.
R v Pinder (1989) 155 LSJS 65, discussed.
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
R v Lillyman (1896) 2QB 167; Longman v The Queen (1989) 168 CLR 79; Crampton v The Queen (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343, applied.
M v R (1994) 181 CLR 487, discussed.
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Conway v The Queen (2003) 209 CLR 203; Burns v The Queen (1975) 132 CLR 258, referred to.
R v Schlaefer (1984) 37 SASR 207; R v Mitchell Unreported CCA[NSW] 5 April 1995, BC 9504682; R v Mayberry [2000] NSW CCA 531; R v Murray (1987) 11 NSW LR 12; Question of Law Reserved on Acquittal (No.1 of 1993) (1993) 59 SASR 214; R v E (1995) 89 ACrimR 325; R v Markuleski (2001) 52 NSWLR 82; R v Timbury (2007) 180 ALR 232; Bromley and Karpany v The Queen 91986) 161 CLR 315; R v Prater [1960] 2 QB 464; R v Stannard [1965] 2 QB 1; R v Kong [2009] QCA 34, applied.
R v DENNIS
[2009] SADC 103The charges
The accused Wilfred Edwin Dennis was arraigned on the information presented on 22 October 2007. He pleaded not guilty to three counts of indecent assault, one of gross indecency and one count of carnal knowledge. Another Judge of this court made an order for trial by Judge alone on 21 October 2008.
Stated in brief terms for the present, the three counts of indecent assault are counts 1-3, gross indecency is charged on count 4. All four relating to one complainant. Counts 1 and 2 are alleged to have occurred in the Vestry of the St Martin’s Anglican Church at Campbelltown. Counts 3 and 4 (indecent assault and gross indecency) are said to have occurred in the accused’s house. The fifth count of carnal knowledge, was allegedly committed against a second complainant, when the accused was a priest and the second complainant an altar server at St Barbara’s Anglican Church at Parafield Gardens. In order to ensure their identity is not revealed as required by s 71A(4) of the Evidence Act 1929 (SA), the complainants are referred to as C1 and C2. They were born on 25 November 1961 and 1 April 1960 respectively, and so were aged 47 and 49 when giving evidence in the trial.
The specific charges and the particulars alleged, are these:
First Count
Statement of Offence
Indecent Assault. (Section 69(1)(b)(iii) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Wilfred Edwin Dennis between the 9th of November 1972 and the 31st August 1974 at Campbelltown, indecently assaulted [C1], a person under the age of 13 years.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Wilfred Edwin Dennis between the 9th of November 1972 and the 31st August 1974 at Campbelltown, indecently assaulted [C1], a person under the age of 13 years.
Third Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Wilfred Edwin Dennis between the 9th of November 1972 and the 31st August 1974 at Vale Park, indecently assaulted [C1], a person under the age of 13 years.
Fourth Count
Statement of Offence
Gross Indecency. (Section 69(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Wilfred Edwin Dennis between the 9th of November 1972 and the 31st August 1974 at Vale Park, committed an act of gross indecency in the presence of [C1], being a person under the age of 13 years.
Fifth Count
Statement of Offence
Carnal Knowledge. (Section 55(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Wilfred Edwin Dennis between the 4th of October 1975 and the 1st January 1977 at Parafield Gardens, had carnal knowledge with [C2], a person above the age of 13 years and under the age of 17 years, by inserting his penis into [C2’s] anus.
Counts 1 and 2 are alleged to have taken place in the Vestry of the Campbelltown Church and count 5 in the Vestry of St Barbara’s. The significance of Vale Park appearing in counts 3 and 4 pertains to the fact that the accused lived in a house in Waterman Avenue Vale Park at all relevant times, as well as before and after the period covered by the charged events. The evidence was that he continued to reside there as of October 2004. The gist of the charges are the alleged acts of guiding C1’s hand to stoke the accused’s penis (count 1 indecent assault), an act of sucking the accused’s penis (count 2 indecent assault), an act of guiding C1’s hand onto the accused’s penis (count 3 indecent assault), performing fellatio on the accused (count 4 gross indecency) and finally an act of penile penetration of the anus of C2 (count 5 carnal knowledge).
The applicable historical legislation
The significance of 9 November 1972 nominated in the first four counts, lies in the fact that by s 3 of the Criminal Law Consolidation Act Amendment Act no. 94 of 1972, the following offences of relevance to counts 1-4 were inserted into the Criminal Law Consolidation Act 1935 (SA):[1]
[1] Hereafter ‘the Act’
Unnatural offences
69(1) Subject to section 68a of this Act –
(b) any person who –
(iii)indecently assaults any male person,
shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years;
and
(c) any male person who commits an act of gross indecency with another male person shall be guilty of an offence and liable to be imprisoned for a term not exceeding three years.
Section 69 remained in operation in this form until 2 October 1975 when it was repealed. The offence of carnal knowledge charged in the fifth count derives from the Criminal Law Consolidation Act Amendment Act no. 66 of 1975, which inserted the following offence into the Criminal Law Consolidation Act, with effect from 2 October 1975:
55(1) Any person who –
(a) unlawfully and carnally knows, or attempts to have unlawful carnal knowledge of, any person of or above the age of thirteen years, and under the age of seventeen years:
…
shall be guilty of a misdemeanour, and liable to be imprisoned for any term not exceeding seven years.
(2)It shall be no defence to a charge under subsection (I)(a) that the carnal knowledge or attempt was had or made with the consent of the person concerned unless the accused proves that at the time of the said carnal knowledge or attempt –
(a) he was under the age of seventeen years; or
(b) he believed, on reasonable grounds that the person was of or above the age of seventeen years.
This was repealed by Act no. 83 of 1976, effective from 9 December 1976. Section 69 of the Criminal Law Consolidation Act provided within the same period:
69 (1) Subject to section 68a of this Act –
(a) any person who commits buggery, either with a human being or an animal, shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding ten years;
…
and
(c) any male person who commits an act of gross indecency with another male person shall be guilty of an offence and liable to be imprisoned for a term not exceeding three years.
69(2) Unless a male person has attained the age of twenty-one years, he shall not be considered capable of consenting to an indecent assault on his person by a male person and unless a male person has attained the age of seventeen years he shall not be considered capable of consenting to an indecent assault on his person by a female person.
The expression “carnal knowledge’ was defined in s 5 to “include penetratio per anum of a male or a female person without his or her consent. Finally between 9 November 1972 and 1 October 1975 the following provisions relevant to count 4 applied:
68a (1) Where a male person is charged with an offence that consists in the commission of a homosexual act, it shall be a defence for that person to prove that the homosexual act was committed with another male person, in private, and that both he and the other male person consented to the act and had attained the age of twenty-one years.
…
(3)A homosexual act includes –
(a)an act of buggery between two male persons;
or
(b)an act of gross indecency between two male persons.
Now, at all relevant times, s 76A of the Act applied to offences of the kind charged here. It provided:
(1) No information shall be laid for an offence to which this section applies more than three years after the commission of the offence.
This section was held to preclude prosecutions commenced more than three years after the alleged offences: R v T.[2] It was repealed by virtue of s 5 to the Criminal Law Consolidation Act Amendment Act no 98 of 1985 effective from 1 December 1985. Although applying retrospectively, the repeal was construed as incapable of reviving prosecutions after the three year limit elapsed: R v Pinder.[3] Hence any charges with respect to either C1 or C2 were statute barred unless brought no later than 31 August 1977 and 1 January 1980 respectively.
[2] (1985) 38 SASR 428
[3] (1989) 155 LSJS 65
Matters stood differently following the passage of the Criminal Law Consolidation Act Amendment Act no. 14 of 2003, operative from 17 June 2003. This provided:
Division 14—Procedure in sexual offences
72A—Former time limit abolished
Any immunity from prosecution arising because of the time limit imposed by the former section 76A1 is abolished.
Note—
1 Repealed by section 5 of the Criminal Law Consolidation Act Amendment Act 1985.
The fact of repeal of this statutory immunity will assume some importance, as will become apparent later. The significance of 4 October 1975 in count 5 is not statutory; this was the day before services first commenced at St Barbara’s.[4]
[4] T299.3-.8
Facts and circumstances not in dispute
The following facts and circumstances were not placed in issue by the defence, unless otherwise appears. The accused Wilfred Dennis was ordained in Brisbane during 1960 as a Deacon and in 1961 as a Priest in the Anglican Church. He worked in Brisbane as an assistant priest until 1965 when he moved to South Australia. [5] He held keen interests in music and the amateur theatre and at times produced plays for the various congregations. He was adept at playing the piano and some of his leisure interests included stamp collecting and swimming. He was an egregious person, outgoing in nature.
[5] Assistant priest and assistant curator were sometimes used interchangeably
In 1971 he commenced working at St Martin’s parish Campbelltown, upon been granted permission to officiate. He reported to the rector of the parish, the Reverend Malcolm Small. Small remained in that position during the entire course of the accused’s tenure at Campbelltown. He lived in the rectory adjacent to the Church, only a matter of metres away. On 4 June 1973 a declaration was signed licensing the accused as an assistant curate of Campbelltown, effective from the first of that month.
In August 1974 the accused left St Martin’s, on being transferred to St John’s at Salisbury. He was licensed as curate to that parish on 1 August 1974.[6] By October 1975 he began officiating over services held in a Church house located at 348 Salisbury Highway, Parafield Gardens. This and St John’s formed part of the same diocese, however what became known as St Barbara's grew into an independent parish. On 5 October 1975 the house was officially consecrated.
[6] T295.29
No other priests served or officiated there from then on, right through to 1981, apart perhaps for the occasional visiting or relief priest. Father Dennis (as the accused was then known) resigned from the parish of Parafield Gardens on 27 December 1984. He wrote to the Bishop seeking cancellation of his licence, on 10 March 1987. Although not material to the charges, on 11 February 1981, Parafield Gardens was registered as a separate parish from Salisbury, this being the occasion of formal recognition of the parish once a new Church was built nearby. The Reverend Dennis was licensed as the priest-in-charge of that parish with effect from 21 February 1981.
In order to serve, altar boys had to be confirmed. The complainant C1 was confirmed on 24 October 1972.[7] He would have turned 11 in November 1972 and 12 in November 1973. At that time St Martin’s usually held three Church services of a Sunday, at 8.00 am, 9.30 am and 7.00 pm. C1’s family almost invariably attended the 8.00 am service and he would often serve as altar boy, once qualified to do so.
[7] Exhibit P13
The complainant C2 was confirmed on 15 October 1971.[8] As of October 1975 he was aged 15 and he turned 16 on 1 April 1976. He left high school to commence his first job in year 10 towards the end of that 1976 year, before the end of year exams. He and his family initially attended St John’s parish, Salisbury where he served as an altar boy. Later when St Barbara’s opened he and the family transferred to that Church, as it was closer to home than St John’s.
[8] Exhibit P9
Each Church was required to maintain a Vestry book. In general it was the responsibility of the priest officiating to record the events, such as services, christenings, ordinations, weddings and the like, even when other priests participated in such activities, although that was never an invariable or rigid requirement. It was not uncommon for both to sign. These books usually also recorded the number of celebrants at a service, the date and time of each service, the numbers taking communion, when new priests were appointed, and the sums collected from the congregation, amongst other details.
The evidence for the prosecution related to each count
The evidence relied upon by the prosecution in relation to each count was the following. As to counts 1 and 2, C1 told the court that approximately six months after performing a lead role in a Hansel and Gretel production during the September 1973 school holidays, “there was another occasion where he forced me to perform oral sex on him”.[9] This was preceded by a period of about three months at the beginning of which he commenced touching and stroking the accused’s penis. He said this occurred when they were alone in the vestry room of St Michael’s, before an 8.00 am service. His evidence proceeded:[10]
[9] T89.13-.16
[10] T90.8-T92.6
QYou've told us that on this occasion you would have hugged. I might ask you to not use the words 'would have'. If you have a memory of what occurred on this occasion, can you tell us what happened. After the initial cuddle, what was the next physical action between the two of you.
AI lifted his robe and put my hand on his penis, stroked the penis and then he pushed my head down to take it in my mouth basically.
QThe stroking of the penis, is that something you did voluntarily or something that he helped you or guided you with.
AHe guided me.
QHow did he do that.
AWith his hand on top of mine and showed me what he wanted and how to do it.
QBy the time of this first incident of fellatio had there been many other occasions when he had guided your hand onto his penis.
AHalf a dozen to 10, yep.
QWhen he guided his hand, was it on top of his robes or underneath.
AOriginally it was on top but then it progressed to underneath his robes.
QDo you recall what he wore underneath his robes on this first occasion of fellatio.
AAs I remember there was nothing underneath.
QWhen he guided your hand onto his penis, was it erect or not.
AIt was erect.
QWhat did you do once he had guided your hand onto his penis.
ATouched it and stroked it, but his hand was on top of mine showing me, guiding mine.
QFor how long were you required to do that.
AThree to five minutes.
QWhat happened after that.
AAre you talking about the first time it happened?
QYes
AThen he held his penis and actually guided me down there with his hands.
QWhat was he wearing at that time
AHe had his black robe, which was pulled up.
QWho pulled the black robe up.
AHe did.
QDid he say anything to you or was this done without conversation.
AI can't remember anything ever being said.
QCould you physically describe how he guided you down towards his groin area.
AHe just used his hand to push me by my head down there.
QHad he ever done that prior to this occasion.
ANo, not to that stage, no.
This is the evidence-in-chief relied upon to support counts 1 and 2.
When it comes to counts 3 and 4, the evidence was that C1 was driven to the accused’s home by his mother for singing lessons, around or just after lunch time of a Saturday. On one occasion they ended up alone in a bedroom. Mr Crowe pointed in particular to this evidence of C1 in support of those two counts:[11]
[11] T98.29-103.7
QHow did you come to be in the bedroom.
AThe standard, as I call it, cuddle and preparation to touching and then went into the bedroom and I don't know what the pretext of going to the bedroom was.
QOn the occasions when you had singing lessons at Wilf Dennis's house, what type of clothing did he wear.
AI always saw him in normal black robes.
QThey are the robes you described earlier that are sometimes worn by priests in the Anglican Church.
AThat is correct.
His Honour:
QDo you mean robes or a sort of a black suit.
ARobes, classic sort of robes.
QEven in the home.
AYes. I never remember him wearing anything else.
XN
QYou have told us you don't recall the pretext of going to the bedroom. Can you tell us what you recall about being in the bedroom.
AYes, we ended up being naked on the bed and some sexual activity occurred on the bed.
QWas there any conversation leading up to this that you can tell us about now.
AI can’t remember any conversation.
QHad this type of thing ever occurred at Wilf Dennis's home before this occasion.
ANo, this is the first time.
QWhat had you worn over to Wilf Dennis's house on this occasion.
AJeans and a T-shirt.
QYou have described in some detail an incident in the vestry. Did this occasion at Wilf Dennis's house occur before or after the incident at the vestry.
AAfter the incident.
QHow old were you at this time.
A13, 14.
QYou have told us that you were both naked in the room, is that right, the bedroom.
AThat's correct.
QWhereabouts were you in the bedroom.
AOn the bed.
QWhere was Father Wilf.
AHe was also on the bed.
QCan you tell us what happened on the bed.
AYes. We were lying next to each other on the bed stroking - I was touching him on the penis, stroking and then I actually pushed down and performed oral sex on Father Wilf by kneeling over him on the bed, squatting over him on the bed.
QI apologise to go into the detail like this. Can I ask you to take us through the different sexual acts that occurred in that bedroom. You have told us that you were both naked on the bed and that he was stroking your penis, is that correct.
ANo, I was stroking his penis.
QYou were stroking his.
AYes.
QWas there anything used, such as oil or did you rub anything on his body.
ANo.
QFor how long did you stroke his penis.
AThree to five minutes.
QHow did that come to happen. What caused you to do that, if anything.
AThat’s what we had done up to then. Previously, other than being naked on the bed, that same act occurred.
QYou told us that this is the first time that this occurred in the bedroom at Wilf Dennis’ house. Is the stroking of his penis something which occurred voluntarily from your point of view or is it something that he caused you to do.
AIn every case he basically would make me do it to him, yes.
QWhen you say that, do you mean that he said something to you or did he guide you in some way.
AMostly guided me, yeah.
QSorry to be specific but how did he do that on this occasion.
AWith his hand.
QYou’re able to tell us whether there was conversation when you cannot now recall or whether there was never any conversation and these things occurred in silence.
AThere may have been conversation but I can’t recall what the conversation was.
QFor how long did you stroke his penis.
AThree to five minutes.
QDid he ejaculate.
ANo.
QWhat happened after that.
AI then performed oral sex on him.
QHow did that come about. How did that occur.
AI moved down to squat over him. Previously we were lying side by side and then I went on top of him.
QI am going to ask the same question about conversation and what caused you to do that. I think you have told us you don’t recall any conversation, is that right.
AYes.
QAgain, are you saying that there was some conversation or may have been which you don’t now recall or this was done in silence.
AI just can’t recall any conversation.
QIs this an act that you performed voluntarily, as in you decided to do it, or is it something that you were guided towards.
AI believe I was guided towards it.
QPhysically how did Father Wilf do that.
QWith his hand and just his general body movements.
QWith his hand what did he do.
AAt which stage ?
QFor the oral sex, you have described.
AI was lying on my side so I have gone from lying on my side to a straddled position under Father Wilf.
QAgain, is that something you did voluntarily or were you guided.
ANo, I believe I was guided.
QHow did Father Wilf do that.
AWith his hand.
QIs there any particular part of your body he touched with his hand.
ANo.
QFor how long did you perform fellatio on Father Dennis on this occasion.
AFive minutes.
QDid he ejaculate.
ANo.
QWhat caused this to stop.
AHe then did start to talk to me at this point.
QWhat did he say.
AI can’t recall it but I remember there was some sort of conversation going on.
QFor how long were you naked on the bed with Father Wilf on this occasion.
AI would think for about an hour.
QDid he remain naked throughout that time.
AHe did.
QYou have described two acts in particular, you stroking his penis and also you sucking his penis. Was there any other bodily contact between you during this hour or so.
AWe were both naked so apart from him cuddling me on the bed, I was also lying on top of him face down too.
QThis may be difficult for you to answer now, but do you recall how you felt about that back as a teenager.
AI wasn’t all that rapt in it all, I wasn’t happy, still not.
QDid you protest to him in any way.
AI can’t remember doing that.
QHow did the incident end.
AI actually don’t know how it finished, it just finished.
The prosecution allege other uncharged acts also occurred between September 1973 and August 1974 with respect to C1. The prosecution says there were a progression of sexual activity, beginning with cuddles in public and then in private, progressing to the charged acts. The evidence of C1 was that conduct of this kind took place over a period of between twelve to eighteen months, and involved a dozen acts of fellatio on the accused, stroking his penis on some 30 to 40 occasions and the touching of the accused’s penis about five or six times.[12]
[12] T109.18-110.12
In June 2002, C1 sent a letter demanding the accused sign over his house in order to secure C1’s silence. On 27 June 2002 the accused contacted Archbishop Hepworth and made certain alleged admissions to him. C1 sent another letter to the accused approximately a year after the first. These are examined in some detail later on in these reasons. The prosecution also called C1’s mother, essentially to prove when he was required to be at St Martins to serve as an altar boy and of driving him to the accused’s house for singing lessons.
The evidence on count 5
The evidence in relation to this count came exclusively from C2 and his father. C2 described attending St John’s and later the Parafield Gardens parish of St Barbara’s with his family. This house was used as a base to establish the small and fledgling parish, which the accused took over from a Father Ayles. When this change occurred, C2 was still at school. He had begun serving as an altar boy at St John’s beforehand.
The Parafield Gardens parish was within walking distance of the family home and certainly closer than the Salisbury parish. As the family did not own a car at that stage, they would either walk or C2 would ride his bike to Sunday morning services and other Church commitments. He describes serving for a few years at the altar of St Barbara’s, and of Father Ayles and Father Reglar remaining at St John’s when the new Church was established.[13] Within this small converted home was a robing room, combining an office to one end of the building and an old lounge room which served as the Church and altar area to the other or the left end, as you entered the front door. To the immediate right of the front door was a small chapel, used predominantly during the week for small services.
[13] T225.11
It was in the room he described as the robing room, that C2 spoke of relevant events. He gave evidence of assisting the accused with his robes, mainly taking off the top robe, and of his family being in the habit of attending the 10.00 am Sunday morning mass. [14] He would serve as altar boy along with two others, one a cross-bearer, the others carried the candles. Like C1 he described the personality of the accused as kind and outgoing.
[14] T227.36-.38
He was asked to relate his first memory of anything “unusual” concerning the accused, which he said was of the accused touching his private parts in the cloakroom, on “quite a few occasions” to the outside of his clothing.[15] He described the “usual practice” after service. The altar boys would clean up the chalice and tray to ensure they were prepared for the next service, whilst the accused would station himself at the front door greeting the congregation as it departed. [16] He thought he was still in primary school when such activity commenced although he was not 100 per cent sure, nor could he say how long after confirmation these activities commenced. [17]
[15] T230.22-.29
[16] T231.19-.22
[17] T232.11-.12
He went on to describe how the behaviour changed when on one occasion the accused undid C2’s zipper, took his penis out of his pants and started playing with it. At this time he became visibly upset in the witness box.[18] Following an adjournment he described this kind of activity as happening on perhaps half a dozen or so occasions,[19] a few of them on Saturday afternoon when they were setting up the Church and a few on other occasions after the Sunday mass.[20] He then added there were “a couple of times when we performed fellatio on each other … most times after the service on Sunday morning when everyone had gone”.[21] He was not able to be definite as to when this occurred, but it was before he left school in about September 1976. If that was the case, he would have been aged 16 by then.
[18] T233.11-.12
[19] T233.26
[20] T233.38-T234.4
[21] T234.30-T235.3
C2 went on to describe anal sex “in the office which served as the vestry or change room.” When asked precisely what happened, he again became visibly upset, describing the incident in this way:[22]
[22] T238.19-.T240.19
QCould I ask you to the best of your memory to tell us what you did and what Father Dennis did.
AI just need a couple of minutes please
HIS HONOUR: Certainly. Shall I adjourn, Mr Crowe?
HIS HONOUR
QShall I adjourn for a couple of minutes?
ANo.
QYou just wanted to pause and think, certainly.
AI performed anal sex on him and he did likewise to me. I have a vivid recollection of that because I was in a bit of pain at the time.
XN
QYou were in a bit of pain.
APain.
QWhat caused that.
AWhen he penetrated me.
QIs there any particular part of the office where this occurred.
AI think I may have been standing over – bending over the table at the time. That I’m not 100% sure of, I just can’t remember it.
QWho had anal sex with who first.
AI think I did with Father Dennis first and then he did after that with me.
QWas Father Dennis clothed in any way.
ANo, we were both naked at the time
QDo you recall the circumstances or any conversation about how you both came to be naked.
ANo, I don't know.
QI think you have told us that this is your only memory of having anal sex with Father Dennis.
AYes
QWhat position was he in the room when this occurred.
AI think it was over near the table, the desk. I'm not 100% sure.
QWhat physical position was Father Dennis in when you had anal sex with him.
AHe was bending over the desk.
QBending over a –
AA desk.
QFor how long did you have anal sex with him.
AI don't think it was very long at all. It was only a few minutes or so.
QDid you ejaculate.
AI'm not sure. I can't remember.
QWhat happened after that, after you had had anal sex with him. Take your time.
AI think he had anal sex with me and after that we got dressed and he took me home.
QFor how long did he have anal sex with you.
ANot very long, I don't think.
QAgain, are you able to say whether he ejaculated.
AI'm not sure. I can't remember.
QUp to the time of this incident had you ever seen or felt him ejaculate.
AOn a couple of other occasions.
QWhat activity was he engaged in when that occurred.
AOne of those occasions was when we were having oral sex.
QBy that do you mean you were performing oral sex on him.
AYes.
QWhen he ejaculated, were you still performing oral sex or had he taken his penis out.
AI was still performing oral sex.
QDo you recall any conversation about that incident or at that time of that incident.
AHe said 'Just swallow' and then went and got a glass of water for me to drink.
QDid that incident occur before or after, if you can say, the act of anal intercourse where you both had intercourse with each other.
AIt had happened before.
QThe incident you have described in the office where you both had intercourse with each other, are you able to say at what stage of the sexual contact this occurred, whether this was the last, the first or somewhere in the middle.
AIt was towards the end of it.
As mentioned earlier, this evidence was supported to a small extent by C2’s father. He said the home was 2-3 km from the Parafield Gardens Church. He confirmed that sometimes his son would stay behind and help clean up and at others he would go home after the service, and the habit of the priest to greet the parishioners as they left.
Uncharged acts are also alleged with C2. He asserts the abuse began when Mr Dennis was unrobing and briefly touched his penis over his clothes. There were a number of such occasions, probably half a dozen, usually in the robing room after the Sunday mass.[23] It then progressed to the accused putting C2’s hand on his groin area. Then acts of fellatio were performed by both. The accused ejaculated in C2’s mouth on one occasion.[24] There were a few instances where anal intercourse occurred.[25] The abuse allegedly happened whilst he remained at high school – once starting work he seems to have stopped going to church regularly. He remembers at one time father Dennis saying to him “it is our secret.”[26]
[23] T233.26-234.4, T248.4-.33
[24] T240.1-13
[25] T236.26
[26] T235. 34
This exchanged occurred during his evidence-in-chief: [27]
[27] T243.1-14
QDo you recall the last time you had sexual contact with Father Dennis.
ANo, I don’t I’m sorry.
QDo you recall the type of sexual activity you had with Father Dennis when things ended.
ANo.
QAt the time did you say anything to your parents or your family about what was happening between you and Father Dennis.
ANo, I didn’t.
QIs there any reason for that that you can tell us today.
AI was young and I didn’t know whether to believe what was happening and I didn’t think it was happening. I didn’t know any different.
It transpired that C2 moved to Queensland where he lived for a number of years. He returned to Adelaide on annual leave several years ago. He said of this occasion:[28]
QI’m not going to ask you about any further conversations you had with people but where were you living when you first reported this matter.
AI was actually living in Queensland. I was here on holidays at the time and I was watching a news program and I just said to my sister, ‘I’m one of them bastards’ and then it went from there to where I am now.
QI’m not going to ask you to go into great detail but what was the topic of the TV program you were watching.
AIt was on the Brandenburg case for child abuse by an Anglican minister.
QI’m not asking for an exact date but do you remember how long ago you watched that TV program and made a report.
AI think it was roughly five, five-and-a-half years ago.
[28] T244.11-24
Other evidence in the prosecution case
In the case against the accused in relation to counts 1 to 4, the prosecution called Archbishop Hepworth. It was not contended this evidence was admissible other than on those four counts. No submission was made that it was in anyway admissible in relation to the fifth count relating to C2. Archbishop Hepworth first met Father Dennis shortly after late 1974. A certain closeness developed between them after he became Bishop. Part of the association revolved around divisions of opinion over the ordination of women. They frequently lunched together, so they must have come to know each other reasonably well.
On 27 June 2002, the accused opened a letter posted to his home address by C1. The terms of that letter are set out later. For the present it suffices to note C1 alleged sexual abuse at the “St Martins Anglican Church at Campbelltown” and at the accused’s home at Vale Park between 1974 and 1976. He offered to remain silent on condition of the accused’s house was signed over to him. It was opening this letter that prompted the accused to ring Archbishop Hepworth at about 5.00 pm that day. He said to Hepworth “the axe has fallen”, “he’s alleging things.” Hepworth asked “are they true” to which the accused is alleged to have replied “yes”.[29] Hepworth then terminated the conversation, preferring to discuss it further in private.
[29] T180.25-.33
The Archbishop described driving from Glenalta to Vale Park, a journey taking about an hour in heavy traffic. As the evidence came out he could not have driven there that night because by the time he arrived it would have been dark. On all accounts, including his own, this journey was undertaken during daylight hours. On all the evidence including his statement to the police, it is highly likely that Archbishop Hepworth attended the Vale Park house of the accused the following day. According to Hepworth the conversation resumed there as follows:[30]
ASo I asked what I thought was the obvious question, 'Is it true?', to which the answer was 'Yes' and I then asked 'How many others might there be?', and he answered 'I've been thinking about that. I think there's about 41'. Now, at that stage I went in to what we will do next mode, if I may say, that I wanted him to visit a lawyer. I didn't tell him what I would do but I had already formed the intention it obviously had to go to the police and it obviously had to go to the Anglican Church Office because it was a matter for them, having taken the events alleged while he was with them so at that stage they were in the midst of many crises of the same sort with insurance issues and so on, so naturally I wanted to tell them as soon as possible too.
QAfter Wilf Dennis mentioned the figure 41, did you inquire what he had been doing to them.
AI asked him what was he doing to them, yes, and he became slightly flustered and I've see him in that flustered state occasionally before and he said 'I was measuring their erections and teaching them to masturbate but I didn't do anything sexual', and if I can add, it made a particular impact because I had just finished reading the official report to the US Catholic Bishops from the Catholic Psychological Association of the US, guiding them on how to handle cases of sexual abuse and alleged sexual abuse in which one of the matters rehearsed was, in fact, what constitutes sex, so it was a live issue in my mind why I remember it vividly.
[30] T181.16-T182.5
He made an appointment for the accused to see a solicitor, took a copy of the subject letter, and notified the police immediately. Father Dennis is supposed to have said “I suppose I’m not going back to the Parish” to which the response was “you must stand aside”.[31] Although Father Dennis told the court he offered to “step aside”, as there is not much between the two versions on this topic, nothing turns on it.[32] When put to him under cross-examination that the accused “did not admit to any sexual abuse” his response was:[33]
ANo, on the contrary. My very clear understanding at the time, and on which I base subsequent reports to the other Anglican diocese, police, and the letter that I sent to my parishioners in Adelaide the following Sunday, was based on the fact that I had heard from him a reasonable understanding that there had been what I understood to be sexual abuse committed.
[31] T182.28-.29
[32] T398.34
[33] T189.28-.34
Archbishop Hepworth did however, curiously, say that Father Dennis had told him “the person who wrote the letter had been in his confirmation class at Tea Tree Gully parish”.[34] Of this he professed to have a clear memory. He later made notes of the discussion, although it was by no means clear whether this was before or after the conference with the solicitor on 2 July 2002.[35] The reference to Tea Tree Gully does not appear in those notes. He insisted under cross-examination the reference to the “boys confirmation class” was one he particularly remembered, in the context of the person writing the letter being in such a class, as opposed to having occurred in the Vestry or the robing room for instance. [36] However he explained that he did not take particular interest in the whereabouts of particular events, only that “my concern was whether they had been in a church environment”.[37]
[34] T190.2-.4
[35] T190.23-T193.16
[36] T194.12-.17
[37] T196.1-.5
Mr Apps put the following version of the conversation at the house between the two men as being this:[38]
[38] T204.24-T205.24
QI put to you that Mr Dennis never spoke to you about teaching this lad about masturbation or measuring erection and so on. What I suggest to you is that he may have said something like this to you; that he had taken the accuser, as you have called him, the accuser and his brother, to the Norwood Pool for a swim.
ANo, I heard nothing about that.
QThat on that day the accuser, if we can call him that, had an erection on a number of occasions during the day.
ANo.
QThat Mr Dennis spoke to him about reaching the stage of adolescence or words to that effect.
ANo.
QAnd that he explained the physical side of masturbation to the accuser.
AThat was something of the context of what he said but not in the context of a swimming pool.
QBut 'explain' is different from actually measuring erections and so on, is it not.
AHe explained about teaching boys about sex in the context their parents don't.
QAnd did he tell you that he had shown this accuser his stamp album or stamp collection.
ANot that I recall.
QDid he tell you that he had shown the accuser a book about stagecraft or theatre or something of that nature.
ANo.
QAre you sure.
AI have no recollection of that. Stamp album certainly not, stagecraft - these remarks could have happened, I wouldn't have remembered them because they appear not to be relevant.
QSo then you think things such as that may have been mentioned to you but you may have simply had no memory of them.
AThat's possible because I was concerned with whether there was in fact improper action. I wasn't really concerned with things that could be described as proper actions.
Detective Brevet Sergeant Olfacius gave evidence of investigating the allegations and of arresting the accused at his sister’s house in Manningham, on 12 October 2004. He declined to answer any questions after being cautioned. Of course no adverse inference is to be drawn against him on account of that: Woon v The Queen.[39] In point of principle, although properly led in a trial by judge alone, that evidence is otherwise inadmissible: Petty and Maiden v The Queen.[40]
[39] (1964) 109 CLR 529 at 535
[40] (1991) 173 CLR 95 at 99
Olfacius arranged for photographs of the house to be taken. They were tendered but provide very little assistance, given the time gap since the alleged events. They do show the accused possessed an upright piano. Of more importance, she gave evidence without objection, that the Arts Theatre production of Hansel and Gretel was publicly performed between 6-18 September 1973. No doubt this was led with a view to dating the events the subject of counts 1 and 2. She obtained the Vestry books, namely Exhibit P14 (St Martin’s), Exhibit P15 (St John’s) and Exhibit P16 (St Barbara’s).
In addition Olfacius gave evidence, again without objection, of making an inquiry into the health of the Reverend Kent Small. Only several days before giving evidence, Reverend Small was in intensive care in an oncology ward, suffering from cancer. He was described as being “quite frail, down to 60 kg, and not doing too well”.[41] This being the state of the evidence led without objection from the defence, no inference adverse or otherwise is to be drawn against either party on account of the failure to call him to the witness stand.
[41] T307.13-.17
Case for the defence
The accused elected to give evidence in his own case. He adduced no other evidence apart from this. He is 74 years of age (DoB 1 May 1935). He gave evidence confirming the details of his various postings within the Anglican Church as described above. His case consisted of blunt denials, when the precise allegations were put to him.[42] Otherwise he spoke of the events in relation to the two churches, details of the services, accepted he often officiated at St Martin’s and that he was the sole priest at St Barbara’s.
[42] T329.16-.26, T342.15-.20, T391.15-.22 for instance
He sought to minimise the work the altar boys were required to do and consequentially the time when they were required to report for altar duties. He also described greeting parishioners as they arrived for services as well as when they left.[43] In respect of C1, whilst accepting boys could not serve on the altar before confirmation, he maintained “normally children would be confirmed at the age of 12 … it was permissible for them to be confirmed younger … that particular date he was confirmed was one week off being 11 and we had to wait until he was 12 before he could serve at the altar, as far as I can remember”.[44] On the basis of this evidence C1 could not have served at the altar at St Martin’s any earlier than 25 November 1973. If so there was a period of about nine months available for any abuse to have taken place before the transfer to Salisbury in early August 1974. That is about half the overall period of abuse alleged by C1. It was also the accused’s evidence that he would have expected C1 to report “less than 10 minutes” before the service.[45]
[43] T320.7-14
[44] T321.29-.36
[45] T322.22
As to the 8.00 am Sunday services at St Martin’s, his evidence was that Father Small, who lived onsite, would have already opened the church by the time he arrived at 7.30 or 7.35 am. He would go to the Vestry to robe about 10 minutes before a service. This was the only time he would be in the Vestry and only then, when “two priests were there”.[46] The effect of this evidence was to deny the opportunity for any untoward activity with C1, because they could not have been alone in the Vestry prior to service and then only for a relatively short period of time.
[46] T320.34
The accused described certain events concerning C1, particularly one occasion when he visited the family home to collect him. There he found C1 in the laundry with an erection. [47] He saw another erection again later that day in the showers at the Norwood outdoor swimming pool. He told C1 “just rinse off the chlorine and you can have a proper shower later on”.[48] They then drove C1’s brother home, so as to allow C1 to “slip in and have a shower and we will go through the books” at the accused’s home, the “books” being a reference to the stamp collection and theatre books the accused kept there.[49] C1’s mother confirmed he was interested in stamp collecting. It was in the Vale Park home of the accused that C1 had a shower, leaving the bathroom door open, when the accused saw yet another erection and when there was supposedly some discussion about how long this had been happening.[50] He repeated this version of events under cross-examination, volunteering there was yet another incident involving C1 having an erection, when he explained masturbation to him, simply because “he was ignorant of what it was about”. [51]
[47] T326.11-.38
[48] T327.12-.14
[49] T327.22
[50] T327.27-37
[51] T368.24-T372.14
This summary takes us to the evidence of the accused as to the terms of his conversation with Archbishop Hepworth. He admitted having used the words “the axe has fallen”, because of an incident some months earlier when the Archbishop talked of rumours about sexual harassment in the church, which he purported to have described as “rather like an axe hanging over our head”.[52]
[52] T331.20-.31
As to the terms of the discussion with Archbishop Hepworth, Mr Dennis repudiated completely the allegation that 41 others were involved, [53] denied saying he measured erections or was teaching them to masturbate.[54] He admitted only that “the most I would have said about any of that was when I was talking to him about what masturbation was”.[55] At one point he accused Hepworth of lying about this.[56] He also denied making the comment C1 “had led a difficult and troubled life”[57] and suggested he offered to step-down rather than being asked to.[58]
[53] T395.12-.25
[54] T395.26-.30
[55] T396.10-.14
[56] T413.7-10
[57] T396.15-.17
[58] T398.32-.37
The prosecution tendered part only of what was apparently personal correspondence sent by the accused to Hepworth at various times, comprising Exhibit P5. These reveal a focus on pubescent children, homosexual relations with teenage boys, the relationship between the clergy and teenagers and suggested many allegations of sexual abuse in the church “are presented falsely”. I do not consider them to be probative of guilt with respect to any of the charges. They are relevant in only the one respect mentioned later.
It is necessary at this point to return to the letters sent by C1. The first Exhibit P6, was dated 22 June 2002. In it C1 describes “years of emotional turmoil because of what you did to me”, that he had been dysfunctional and in pain and was receiving therapy. The letter points out the laws of South Australia prevented the pursuit of his allegations. In that context C1 wrote of his knowledge of “recent developments” with the Attorney-General’s Department, stating “this law is about to be reviewed with the result being this Statute of Limitations will be abolished”, and asserting that allegations of sexual abuse “will be fully investigated”. The letter proceeded to give the accused a stark choice. The first was that he be reported and charged accordingly, that civil action may be taken, and maintained his “advice is that you will be found guilty as charged and more than likely spend the rest of your years in protective custody in B Division of Yatala Gaol”. The alternative was “you give me your house … for this you get my silence … and a signed declaration I will never charge you with these crimes, nor discuss them with anybody else.” The letter ended by exhorting the accused to “choose wisely”, giving him 14 days before any action would be taken.
The second letter, Exhibit D7 dated 5 June 2003, was more curt. It read in full:
Well, I gave you plenty of opportunity to do something about all this before the shit hit the fan didn’t I. I’ll give you 48 hrs to do as I asked before I contact the appropriate people. I’m sure that the heirachy at the Anglican church would love to know a few things right now. Of course you might decide to just wait and see. Again, the choice is yours. Things in your life however, just might get a little more chaotic. I wonder what the neighbours would say!!!
It turns out, as C1 admitted during the course of his evidence, that he had been seeking psychiatric treatment since 1996. He gave evidence of disclosing to the psychiatrist Dr Lim, the accused’s name a number of years earlier. In a statement of Dr Lim read to the court by consent of the defence, it emerges the first time the accused’s name came up was on 3 April 2003, at a time which C1 had “begun revisiting his childhood abuse because of media publicity at the time”.[59] This was well after the first letter and not long before the second. Her statement also says C1 commenced consulting her in 1996 when “his son [A] was reaching an age that reminded [C1] of his childhood trauma at the same time”.[60]
[59] T308.30-.31
[60] T308.18-.25
Two statements from the Reverend Small were tendered on the common understanding that he was too frail to give evidence and therefore effectively unavailable to be called by either party.[61] The first dated 17 May 2006, describes him as a retired priest of the Anglican Church. He refers to the accused having permission to officiate at St Martin’s from November 1971 and then continues:
He was only part time and at that stage he would only have attended Sunday morning sessions to help. He would have taken the service and occasionally preached. I was there as the Rector. …
The statement proceeds on the assumption of the accused having a full-time position as assistant curate from 1974 authorising him to conduct services by himself. It then reads:
… but whether he did I can only remember one particular occasion in August 1973 [sic due] to my absence from the Parish. When I was on long-service leave the Church appointed a locum.
[61] Exhibit P17
The Reverend Small went on to describe the priest’s Vestry as “only a small room” and:
… when [the accused] and I would change into our robes in there it was quite cramped. There was barely room for just two adults in the Priest’s Vestry … The servers had their robes kept in the Choir Vestry … I was very strict and made the servers robe in the Choir Vestry and that was because of the space difference. After the servers had got changed they would come into the Priest’s Vestry. At the early service, which started at 8am on Sundays there would be one server. The servers would then come into the Priest’s Vestry to prepare for the service. They would make sure wine, and bread was ready, candles were lit for example and make sure everything was ready for communion. They would do a check to ensure these were done and then come into the Priest’s Vestry. That’s all they had to really do and light the candles. When it was close to starting time we would all leave together.”
In the second statement he deposed:
The vestry record book is not proof of a person’s absence, their signature only proves their attendance. If one signature appears, that can mean they were the only person officiating and/or preaching. But someone else such as me could be present undertaking minor roles. If two signatures appear that can mean both persons were fully involved in the service.
Legal principles
Fundamentally, every element of each charge must be proved to the criminal standard. As a general consideration the evidence in support of one charge is not admissible as proof of the other charges: R v Schlaefer.[62] The evidence led in support of one count cannot be treated as tending to prove an inclination in the accused towards the relevant conduct, or that he is the kind of person who was likely to have done so on the occasions charged: KRM v The Queen.[63] Moreover in a case such as this where there are multiple counts based on the evidence of two complainants, the evidence of one complainant cannot be used towards proof of the guilt of the accused of the offences involving the other complainant, so that each must be considered quite separately: R v Mitchell;[64] R v Mayberry.[65]
[62] (1984) 37 SASR 207 at 210
[63] (2001) 206 CLR 221 at [36]
[64] Unreported CCA[NSW] 5 April 1995, BC 9504682 at 4
[65] [2000] NSWCCA 531 at [54]
In relation to the evidence on count 5, the prosecution conceded there was no corroboration, so it is necessary to be completely satisfied beyond reasonable doubt of the truthfulness, reliability and accuracy of C2. His evidence must therefore be scrutinised with great care before a conclusion can be reached that a verdict of guilty is appropriate: R v Murray.[66] Moreover since the accused gave evidence, as to both complainants it is very much a situation of “oath against oath”, so there is an inherent difficulty in arriving at a conclusion of guilt, although there may be cases in which the complainant’s evidence is so convincing and the accused denial so incredible, that it is possible to reach that state of mind, but before doing so extreme caution is required: Question of Law Reserved on Acquittal (No.1 of 1993),[67] and R v E.[68]This is even more so with respect to count 5, because Archbishop Hepworth’s evidence is not relevant.
[66] (1987) 11 NSWLR 12 at 19
[67] (1993) 59 SASR 214 at 218
[68] (1995) 89 A Crim R 325 at 330
There is another topic of significance in the context of a case like this, where the charges are so dated. For a very long time the common law treated evidence of complaints as admissible because of the general assumptions that a victim of a sexual offence will complain at the first reasonable opportunity, and that if no complaint is made, that omission may cast doubt on the reliability of the evidence of the complainant: Suresch v R.[69] This principle was established in R v Lillyman,[70] and adopted by the High Court of Australia in Kilby v The Queen.[71] Plainly no such complaints were made by either complainant, so that there is no question of evidence pertaining to either C1 or C2, capable of supporting the consistency of their conduct with the story told by them in the witness box. However as Gaudron J points out in M v R:[72]
embedded in it a questionable suggestion, namely, that people are more likely to lie about sexual offences than about other matters … there is no basis for thinking that females are less reliable in these matters than males”.
[69] (1998) 72 ALJR 767 at 770
[70] (1896) 2QB 167
[71] (1973) 129 CLR 460
[72] (1994) 181 CLR 487 at 514
Accordingly it is necessary to bear steadily in mind throughout that the absence of a complaint does not necessarily indicate the allegation is false and also that there may be good reason why no complaint was made. Moreover the common law principles cannot, as Gaudron J exposed in M v R “be approached on the basis of an assumption [in] cases of sexual assault on a child by a person who has the child’s trust and confidence”.[73] As her Honour emphasises, child complainants may be reluctant to resist the offender or to protest and on that account reluctant to complain and they may fail to do so from fear of not being believed or fear of punishment or rejection.
[73] Above at 414
Still further, there is every reason for approaching cases of this kind with extreme caution, on account of the abject delay of this magnitude, some 34-35 years, or thereabouts. This situation was dealt with by the High Court in Longman v The Queen:[74]
But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to it: see R v Spencer, at 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court of New South Wales (1989 87 ALR 577 at 582, 591, 600-1, 611-12) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury was told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.
Then in Crampton v The Queen[75] Gaudron, Gummow and Callinan JJ (with whom Gleeson CJ agreed) said of cases involving significant delay:
[45] The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman …
[74] (1989) 168 CLR 79 at 90-91 per Brennan, Dawson and Toohey JJ
[75] (2000) 206 CLR 161
A third decision of the High Court on point is Doggett v The Queen,[76] where Gaudron and Callinan JJ, in a joint judgment (with which Kirby J agreed), wrote:
… the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, or more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred.
[76] (2001) 208 CLR 343 at [51]
These cases of the highest authority, dictate that the court must approach each charge on the basis that it is dangerous to convict on the evidence of the complainant alone, unless and until, after giving close scrutiny to the evidence, the court is convinced beyond reasonable doubt of the truth and accuracy of the complainant’s evidence, separately considered. As pointed out in Crampton v The Queen,[77] in circumstances involving lengthy delay – which this case is on any view - the defence will frequently consist of outright denials, because the passage of time denies the necessary forensic weapons that contemporaneity provides.
[77] (2000) 206 CLR 161 at [45]
Although dates in relation to each offence are alleged in the indictment, the exact date is not an essential ingredient of any of the charged offences, however the occasion alleged must itself be clearly identified and the court ultimately satisfied the specific act charged is proven according to the criminal standard: R v Dossi;[78] R v Pfitzner;[79] R v Dean.[80] There is no legal significance in the particular “a person under the age of 13 years” in each of counts 1 to 4, but there is in the particular of count 5 “a person … under the age of 17 years”, because s 55(2) removes the capacity of 17 year olds to consent to carnal knowledge. The accused did not claim to hold a belief that C2 was above the age of 17 years. It is in fact known to be otherwise.
[78] (1918) 13 Cr App R 158 at 159–60
[79] (1976) 15 SASR 171 at 185
[80] [1932] NZLR 753 at 763
Finally I should note that C1, his mother and C2 gave their evidence whilst a screen was positioned between them and the accused, obscuring their view of him. However no inference adverse to the accused is to be drawn from the taking of those special measures, and nor are they to influence the weight to be given to their evidence: s 13(7) Evidence Act 1929 (SA).
Analysis of the evidence
With these guiding principles in mind, it becomes appropriate to consider the evidence. This appraisal commences with count 1, only because it is the first occasion C1 talks about something unusual happening and only because it arises first in point of time. It seems only logical to approach the case in this way.
The explanation of C1 for getting the years wrong is tenable, given the effusion of time, but it is doubtful that he would have been given information as to the dates the accused served at Campbelltown by the Anglican Church over the telephone. It is not so explicable why he could have mistaken when he first named the accused with his psychiatrist. The letters he wrote to the accused were ill-advised because of the fierce demands they made. They reflect no credit upon him, especially since he was expecting the time-bar to be removed. They might be excused on the assumption that they were the product of the years of unresolved anguish and anger, but he should have trusted his cause to the prosecuting authorities.
It is difficult to assess what weight to attach to Archbishop Hepworth’s evidence. This is not because he is unreliable, it is because of the content. The accused’s assertion that Hepworth did not ask in respect of the first letter “are they true” is simply not credible.[81] For a person in Hepworth’s position, this inquiry would have been as irresistible as it would have been inevitable. As Archbishop Hepworth said in his evidence: [82]
… I needed to know if there was substance at the back of it so that I would know what to do in terms of his ministry in this parish, the Anglican Church, my insurers their insurers and to police.
[81] T392.19-.23
[82] T182.22-.25
Moreover Hepworth would have hardly contacted the police if there was no admission. On the other hand Hepworth might have misreported there were about 41 others involved. The likelihood is that the accused mentioned being in the priesthood some 41 years as of that time, which was the fact. The supposed misreporting of the alleged events referred to in the letter as referable to “his confirmation class at Tea Tree Gully” and which theatre might have been mentioned, were most likely mishearing or misinterpretations, or perhaps a product of misinformation supplied by the accused.
What is perhaps more significant about the exchange with Hepworth, resides in what was not said rather than what was. A priest in the position Father Dennis then was, on being confronted with false allegations of serious sexual abuse coupled with the demand that was made, should have been infuriated by them. More than that he had expressed in his correspondence with the Archbishop, indignation over false accusations against the Church, such that if he was blameless, one might have expected an expression of denial, or at least surprise and if not anger and indignation: compare Conway v The Queen.[83]
[83] (2003) 209 CLR 203 at [49] and [98]
The June 2002 letter was non-specific about what the particular sexual abuse was, so that when the accused affirmed they were true, that does practically nothing to inform the content of what was supposed to be true. Such a generalised concession is equally consistent with the accused’s own admission of other untoward events falling short of offences with respect to C1. Accordingly, whilst the evidence of Archbishop Hepworth can be accepted in general, the non-descriptive nature of the supposed “admissions”, advances proof of the prosecution case no further: they are of little probative value as proof of guilt: Burns v The Queen.[84]
[84] (1975) 132 CLR 258 at 261-262
Of course the evidence of the accused must be considered and approached in the same way as the evidence of any witness: Brown v The King.[85] It is not to be discounted simply because he is an accused person: R v Copeland[86] and R v Jenner.[87]I give him credit for making an election to take the witness stand and giving evidence in his own defence: R v Robinson and Tiplady.[88]
[85] (1913) 17 CLR 570 at 589
[86] (1997) 194 LSJS 1 at 7
[87] (2000) 110 A Crim R 512 at [31]
[88] (1985) 123 LSJS 37 at 38
Nevertheless there were a number of difficulties with his evidence. In relation to the duties of the altar boys, he sought to overly minimise what they were required to do. The first statement of Reverend Small confirms they had more comprehensive duties than the accused tried to make out:
They would make sure wine and bread was ready, candles were lit …and make sure everything was ready for communion.”
His evidence was that all that was potentially required of them at Campbelltown was to light the candles.[89] On C1’s account they had to robe, assist the priest to robe, polish the chalice, prepare the altar, count the celebrants and bring the altar wine and communion wafers.[90] On the accused’s evidence there would hardly be any need to be there any earlier than a minute or two beforehand. For these reasons the evidence of the accused on this topic must be rejected. His suggestion that C1 only arrived less than 10 minutes before service[91] was unconvincing, because it was contrary to the evidence of C1[92] and his mother,[93] evidence that in any case makes more sense and which there is no reason to doubt.
[89] T320.29, T339.16-.19, T385.4-.8 and .36-.38
[90] T68.20-.36, T76.17-77.29, T129.14, T130.33, T143.37-144.3
[91] T322.22, T384.32-385.9
[92] 69.1, T125.37-126.10
[93] T267.23-.25
Moreover his evidence under cross-examination about the significance of the St Martin’s Vestry books and the omission in some cases of signatories and why certain others were crossed out, was most unimpressive.[94] The plain import of this evidence was that he barely ever officiated alone at the 8.00 am mass. Such explanations as the Vestry book “was perhaps more observed in the forgetfulness of people who signed it”, “we would both sign at times but at times it was just forgotten”, “Small must have forgotten to sign” on numerous occasions and that Small “accidentally” signed on others, for instance, were specious, confusing and necessitated a remarkable number of mistakes in the record keeping of the Vestry books at Campbelltown, if true. A close examination of the St Barbara’s Vestry book reveals that there was some 36 occasions between 2 January 1972 and 29 July 1974 when he may have officiated at the 8.00 am Sunday mass on his own. [95]
[94] T347.1-366.38
[95] Exhibit P14
His evidence about what was described as the “Norwood” incident, was quite frankly, bizarre. These supposed incidents were untoward, but hardly amounted to sexual abuse, so just why the accused chose to raise these makes no sense. Likewise his explanations for the correspondence to Hepworth were unconvincing. All in all the court approaches the evidence of the accused with considerable reservations.
However, just because he is disbelieved in some important respects does not mean that he is guilty. It is essential in a situation of “word against word” to ensure that it is not a question of making a choice between the evidence of principal witness and that of the accused. On the contrary, where the prosecution case depends upon accepting the evidence of its principal witness, it is not necessary to believe the accused is telling the truth before he is entitled to be acquitted: R v E.[96] The court must consider the evidence and ultimately ask itself the fundamental question whether the charge then under consideration has been made out beyond reasonable doubt according to each of its essential elements.
[96] (1995) 89 A Crim R 325 (NSW) at 330
The most troubling feature of counts 1 and 2, has its origins in the statements of Reverend Small. Had he been able to attend court, he may well have been in a position to throw more exacting light on the number of times Father Dennis conducted the early Sunday mass on his own. If the evidence of C1 is taken literally, there were more than 40 incidents having sexual overtones, although he did not say where these occurred in the Church or in the house. On the basis that there were 26 opportunities when the alleged abuse could have occurred in the Church, this must have been practically every time the accused celebrated the early mass on Sunday mornings, unassisted or not. Had Father Small given evidence along the same lines as his statements, there were barely any occasions when the accused officiated alone. That would have been decisive of counts 1 and 2, simply because there would not have been the opportunities for the accused to have committed the alleged acts in the Vestry.
The two statements of Reverend Small are critical. It is for this reason that they were reproduced in substantial part above. In sum, they are to the effect that the accused was at all times assistant curate at St Martin’s and as such would not have officiated at the early Sunday services, or at the very least they raise a reasonable doubt about that. On the contrary, they state he attended the “Sunday morning sessions to help”. In fact Father Small could only “remember one particular occasion in August 1973” when the accused officiated on his own. He emphasises the Vestry was extremely small, making it unlikely more than two persons could have been in there at any one time. He says he and the accused “would change into our robes in there”.
Taken at face value these statements render it highly unlikely there would have been any occasions when the opportunity arose for the accused and C1 to be left alone in the St Michael’s Vestry, to commit the acts alleged. Even taking into account that the court is denied the benefit of hearing and seeing this witness, this material raises a substantial doubt about the evidence of C1 as to the possibility of events at St Martin’s ever occurring. That being the case and bearing in mind the forensic disadvantages identified in the case law, the court is left with no other option than to give the accused the benefit of the reasonable doubt that there would have been sufficient occasions available for the offences to have been committed against C1, in the place and time alleged, so far as counts 1 and 2 are concerned. Accordingly the accused is entitled to acquittals on those counts.
That conclusion directs attention to counts 3 and 4. The evidence as to these is not directly affected by Small’s statements. All the same the court has concluded those statements create a reasonable doubt as to the accuracy and reliability of C1 in relation to the first two counts. That conclusion serves to raise the question of the reliability of C1’s evidence as a whole: R v Markuleski,[97] R v Timbery.[98] These doubts arguably go beyond an understandably faulty or inaccurate recollection. On the other hand the court’s conclusion in relation to counts 1 and 2 does not reside in imperfections in the account of C1, it derives from other evidence. Although the accused’s evidence in relation to these two counts was unsatisfactory in the ways identified above and completely mystifying in respect of the “Norwood” events, the rejection of that evidence does not necessarily mean that he is guilty either. It remains for the prosecution to prove the charges, if it can.
[97] (2001) 52 NSWLR 82 at [186-191]
[98] (2007) 180 A Crim R 232 at [103]
The evidence in relation to counts 3 and 4 was of quite different content. These were said to have occurred in the accused’s house. He tried to distance himself from the family, but I see no reason to doubt C1’s mother’s evidence that he dined at the family home several times – there is no reason for her to invent or to fail to remember this. It would have been one of those special things people remember.[99] Then there is the accused’s denial that C1 went to his house other than to take a shower, in the bizarre circumstances discussed above.[100] This was contradicted by both C1 and his mother. Both said she dropped him there for singing lessons of a Saturday afternoon, perhaps up to six times or more.[101]
[99] T268.34-269.16, T276.22-.33 and see T152.35-153.2
[100] T367.38, 380.33, 391.75
[101] T85.28-86.29, 94.19-95.5, T97.18-98.23, T161.33-162.2, T163.22-.25 (C1), and T270.19-271.30, T274.28-T276.17
This evidence, coupled with the fact that both denied C1 ever went to the Norwood pool to swim with Mr Dennis, casts a different light on the events in the accused’s Vale Park home.[102] The accused’s interest in music together with his playing ability, the fact that he kept a piano in the home and had so much to do with promoting theatre and musical events, leads to the inevitable conclusion that the sole reason for C1 going to his home, was precisely in furtherance of these activities. It is therefore more than likely that he did visit on more than the one occasion the accused was prepared to admit. The explanation for going there arising out of the offer to shower at the pool is nothing less than fanciful.
[102] T164.14-168.6 (C1) and T273.33-275.2
These two acts are said to sustain the respective charges, of indecent assault (count 3) and gross indecency (count 4). An indecent assault as it was then constituted, was committed when an accused assaults another, without the other’s consent, in circumstances of indecency: R v Leeson.[103] The act of stoking the accused’s penis for three to five minutes, undeniably constitutes indecency by any reasonable standard. As s 69(2) of the Criminal Law Consolidation Act as it then stood rendered a male person under the age of 17 incapable of giving his consent to an indecent assault, that is conclusive of the issue. The accused never claimed otherwise.
[103] (1968) 52 Cr App R 185 at 187
Count 4 charges gross indecency pursuant to s 69(1)(c) of the Criminal Law Consolidation Act. Unlawful fellatio was not considered to constitute rape in those days. The offence of gross indecency, requires something more than circumstances of indecency: R v Whitehorne.[104] However the act of performing oral sex on the accused for about five minutes at his age, could hardly be anything else. Once again consent is not an issue as s 68a rendered C1 incapable of conferring his consent.
[104] [1955] QL Report 100 at 101
If this impugned conduct commenced around six months after Hansel and Gretel finished at the end of the September 1973 school holidays, these two offences could not have been committed until after April 1974, and they could not of course have been after the accused left Campbelltown in early August 1974, a corridor of around seven months. On that footing C1 did not turn 13 until 25 November 1974, and hence was a “person under the age of 13 years” as alleged, on or before the accused left Campbelltown, as particularised.
He claimed to have visited the Vale Park home between six and ten times, staying for up to four or five hours.[105] He said that the first incident there was “months prior to [the accused] leaving St Martin’s” and he guessed the last sexual contact was “four to six weeks” beforehand. On this state of the evidence, C2 must have been under the age of thirteen in all four counts.
[105] T94.27 & T98.7-.10
The basis for rejecting the prosecution case on counts 1 and 2, serves to undermine the evidence of C1 on central matters going to the core of his evidence. In that situation it becomes difficult to see how the evidence of the first complainant could be readily accepted in relation to the remaining two counts affecting him. The crucial consideration is that the doubts already formed with respect to this aspect of his evidence, must be considered when assessing his overall credibility: R v Markuleski.[106] These were not doubts produced, for instance, by mere faulty or inaccurate recollection, confined to counts 1 and 2: R v PMT.[107]
[106] Above at [188–191]
[107] (2003) 8 VR 50 at [31]
It is true enough that Vale Park was mentioned in the first letter. Both letters on the other hand undeniably expose a disconcerting ulterior motive and willingness to extort, which cannot be condoned or ignored. The case law demonstrates that when this kind of unnerving consideration emerges, a careful approach is required. When it appears a witness whose evidence is important has some characteristic which may affect his capacity to give reliable evidence, juries are customarily warned in terms appropriate to the circumstances, of the possible danger of basing a conviction on that testimony, unless confirmed by other evidence: Bromley and Karpany v The Queen.[108] Likewise warnings are given when it appears the witness has some distinct purpose of his or her own to serve, or is tainted by an improper motive, against acting on that if it is unsupported or uncorroborated: R v Prater,[109] R v Stannard,[110] and R v Kong.[111]
[108] (1986) 161 CLR 315 at 319
[109] [1960] 2 QB 464 at 466
[110] [1965] 2 QB 1 at 2
[111] [2009] QCA 34 at [29-31]
Given the flow-on effect of the doubts engendered as to the reliability of the evidence of C1 in relation to counts 1 and 2, coupled with the dark cloud raised by the letters, the court is unable to remove the reasonable doubt, a doubt reasonably arising on the evidence in relation to counts 3 and 4, such that the accused is entitled to the benefit of that doubt.
Analysis of count 5
Count 5 must be considered in isolation, in relation to the evidence admissible to it and nothing else. The findings in relation to counts 1-4 are then, quite irrelevant. As mentioned earlier, the evidence of C2 was particularly telling. It was supported to a very small extent by his father who confirmed the requirement to attend up to half an hour earlier. The accused’s evidence as to this is rejected as being both unlikely and unrealistic, for the following reasons. It is contradicted by the evidence of C2 and his father. The accused once again unsuccessfully tried to minimise the time altar boys reported before the Sunday morning 10.00 am service at St Barbara’s and consequently the time available for the course of conduct alleged by C2. His father said he was required to report between 20 minutes and half an hour before the service.[112] The accused gave evidence that C2 only had to report “about 10 minutes before the service”.[113] When it was put to him that C2 was a larger boy than he made out, the accused answered “perhaps he shrunk”.[114] This was obviously an invention on the spur of the moment in the witness box, in a forensic predicament from which he had no escape.
[112] T286.2
[113] T338.18
[114] T388.17-27
On the basis of all the evidence, including that of the accused, there were plainly far more opportunities for him to be alone with C2 in the Vestry/office of the home Church house following morning service, even though the prospect of being sprung or surprised should not be discounted. There was no question in this instance, of another Priest being about the building. The weight of C2’s evidence resides in the manner and abject degree of conviction in which it was given. His answers were measured and considered, although several times he was unsure of things. Those concessions were the measure of the frankness of C2. Although one must be ever wary of the dangers of over reliance on the demeanour of witnesses, both counsel accepted that C2 gave his evidence in a rather convincing way.[115]
[115] T447.33-T448.20, T484.17-T485.3
In a forceful submission, Mr Apps correctly pointed out that one should not conjugate the obvious integrity and the manner of giving evidence with an underlying cause other than the events at St Barbara’s. In particular it was suggested the convincing nature of C2’s evidence had its origins in admitted abuse at the hands of others. Those points during his evidence when C2 was obviously emotive, such as giving evidence with his eyes closed, or with his head raised or lowered, did not correspond with his evidence in relation to that other abuse. The obvious difficulties in recalling events occurred at the times when he was describing in detail the events specifically related to count 5 itself.
I particularly noticed him swallowing with difficulty at times, being obviously upset and weeping softly at other times. There was a depth of feeling and conviction difficult to describe, but quite transparent in the courtroom. When describing the physical pain caused on anal penetration, he closed his eyes for the first time and was plainly labouring in the process of bringing it out into the open. His head was raised when he spoke of the other occasion when ejaculation occurred, so that these telling moments were at times pertinent to the charge relating to C2; they did not have their origins in extraneous sources. He was also visibly upset when relating his reaction to the television program and identifying with it “I am one of the bastards”. At this time he held both hands cupped to his eyes.[116]
[116] T244.11-T245.5
The fact remains that there is no corroboration of C2’s evidence. It remains dangerous to convict for all the reasons mentioned earlier. The court can only find the charge proven beyond reasonable doubt if thoroughly convinced of the reliability and accuracy of his evidence. In this instance the court finds C2’s evidence so convincing and the accused’s denials specific to that evidence so unconvincing, having heeded to the full the dangers and whilst acknowledging the forensic disadvantages to the defence.
The charge on this particular count is one of carnal knowledge. The precise act alleged is one of anal intercourse by penetrating the anus of C2. Consent is not an issue, given that C2 was aged under 17 before he stopped regularly going to Church in the latter half of 1976. Accordingly, once the evidence of C2 is accepted beyond reasonable doubt as reliable and accurate – as it is – and the accused’s version rejected as raising a reasonable possibility of innocence – as it is - all the necessary elements of the charged offence are otherwise satisfied. The specific act alleged on count 5 could only have occurred after October 1975 when St Barbara’s began as a Church, and before September 1976 when C2 left school, so that he was either 15 or 16 at the time. He was then “above the age of 13 years and under the age of 17 years” as alleged in the particulars of that charge. Consent is no defence to this charge once it is accepted that C2 must have been under the age of 17.
On the whole of the evidence and considering and reconsidering the cautions referred to in the cases, and in spite of the inherent dangers, the court nevertheless finds count 5 proven beyond reasonable doubt. A verdict of guilty will be entered accordingly.
In reaching that verdict, the court ignores the evidence given by Archbishop Hepworth and the rejection of the accused’s evidence in relation to C1. It also ignores the puzzling “Norwood” incident referred to by the accused, for although that shows a prurient interest in masturbation by adolescent boys, it does no more than that. Moreover it was given in the context of the relationship with C1 – it does nothing to inform the relationship with C2. The evidence of C2 on account of certain “uncharged acts” leading up to the act of anal intercourse, is relevant in a very limited way, bearing in mind their respective ages and positions in the church, as serving only to explain why C2 submitted to acts of anal intercourse, to expose why he did not complain to his parents or others in authority within the church, and how the accused managed to achieve submission to sexual abuse: R v Nieterink,[117] Tully v The Queen,[118] and HML v The Queen.[119]
[117] (1999) 76 SASR 56 at 43-44
[118] (2006) 230 CLR 234 at [147]
[119] (2008) 235 CLR 334
Conclusions and verdicts
In relation to counts 1 and 2, given the statements of the Reverend Small, there is a reasonable doubt as to whether there were sufficient opportunities for the events alleged by C1, to have occurred, where and when described by him. In respect of counts 3 and 4 the court cannot remove all reasonable doubt about the evidence of C1, thus entitling the accused to acquittals.
As to count 5, the court finds the evidence of the complainant C2 to be convincing and the denials of the accused so incredible and despite the lack of corroboration and the dangers inherent in relying on evidence of events occurring some 35 years previously, the court finds that it can safely draw the conclusion beyond reasonable doubt that the accused is guilty of the offence of carnal knowledge. A verdict of guilty will be entered accordingly on count 5.
0
22
1