R v DPM (No 2)
[2023] SADC 149
•31 October 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DPM (NO. 2)
[2023] SADC 149
Judgment of his Honour Judge Stretton
31 October 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with sexual abuse of a child contrary to section 50(1) of the Criminal Law Consolidation Act 1935, it being alleged that he committed a series of unlawful sexual acts with his biological son at Munno Para and other places while his son was in his early teen years. The prosecution case included evidence suggesting that the accused both ostensibly admitted his guilt in subsequent conversation and admitted his guilt by silence in another conversation.
Verdict: Guilty
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 34M(4), referred to.
BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Mardou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150; R v Jones [2018] SASCFC 80; R v S,T (2017) 128 SASR 66; Driscoll v The Queen (1977) 137 CLR 517; R v Trabolsi [2018] SASCFC 57; R v Spencer [2019] SASCFC 70; R v Smith (1897) 18 Cox CC 470; R v Grills (1910) 11 CLR 400; R v Salahattin [1983] 1 VR 521; R v Kamleh [2003] SASC 269; Woon v The Queen (1964) 109 CLR 529; R v Christie [1914] AC 545; R v Alexander [1994] 2 VR 249; Barca v The Queen (1975) 133 CLR 82, considered.
R v DPM (NO. 2)
[2023] SADC 149
The accused is charged with the offence of Sexual Abuse of a Child contrary to s 50(1) of the Criminal Law Consolidation Act, 1935 (‘the Act’).
It is alleged that between the 30th day of June 2013 and the 9th day of July 2016 at Munno Para West and other places, the accused, being in a position of authority in relation to the complainant his biological son, maintained an unlawful sexual relationship with him, a person under the age of 18 years, by engaging in two or more unlawful sexual acts with or towards him.[1]
[1] The particulars alleged against the accused are:
(a)squeezing the complainant on the bottom on more than one occasion;
(b)rubbing his penis against the complainant on more than one occasion;
(c)allowing the complainant to rub his penis against him on more than one occasion;
(d)touching the complainant’s penis on more than one occasion;
(e)allowing the complainant to touch his penis on more than one occasion;
(f)performing an act of fellatio on the complainant; and
(g)allowing the complainant to perform an act of fellatio on him.
(h)
The accused pled not guilty and elected for Trial by Judge Alone.
An adult who maintains an unlawful sexual relationship with a child is guilty of the offence of sexual abuse of a child.
Elements of the offence
To convict the accused the prosecution must prove each of the following elements beyond reasonable doubt:
·That at the relevant time the accused was an adult. An adult is defined as a person of or over the age of 18 years.
·That at the relevant time the complainant was a child. A child is defined as (a) a person who is under 17 years of age; or (b) a person who is under 18 years of age if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the adult in the relationship is in a position of authority in relation to the person who is under 18 years of age. A person is in a position of authority in relation to a child if the person is a parent of the child.
·That the accused maintained an ‘unlawful sexual relationship’ with the complainant. An ‘unlawful sexual relationship’ is defined to mean a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period. An ‘unlawful sexual act’ means any act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence; A sexual offence includes unlawful sexual intercourse with a child, indecent assault and performing an act of gross indecency.
o A person commits unlawful sexual intercourse if they have sexual intercourse with a person who is under the age of 17, or if being in a position of authority in relation to a person under the age of 18 years, has sexual intercourse with that person. Consent is irrelevant.
o It is an offence to indecently assault another person; which such offence comprises the unlawful application of force to another person, without consent, in circumstances of indecency accompanied by sexual connotation. A child is legally incapable of consenting to an indecent assault.
o It is an offence to in public or in private commit any act of gross indecency with, or in the presence of, any person under the age of sixteen years or to incite or procure the commission by any such person of any act of gross indecency with the accused or in the presence of the accused, or with any other person in the presence of the accused or is otherwise a party to the commission of any act of gross indecency by or with, or in the presence of that person. A child is legally incapable of consenting to an act of gross indecency.
The Act provides that for an adult to be convicted of an unlawful sexual relationship offence, whilst the Court must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed and the prosecution must allege particulars of the period of time over which the unlawful sexual relationship existed, the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and the Court is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts.
The issues in this case
The prosecution in any criminal trial is obliged to prove each element of an alleged offence beyond reasonable doubt, based on the evidence led at trial relevant and admissible to that charge. The prosecution is never relieved of that strict requirement, and nothing in what follows should be interpreted as departing from that fundamental principle.
The prosecution case alleges that the accused is the biological father of the complainant and in the course of that parental relationship committed a number of unlawful sexual acts on and with the complainant when the complainant was aged about 13 to about 16.
It was not materially in dispute that at the relevant times the accused was an adult, the complainant was a child, and that there was an ongoing parental relationship at all relevant times. Nor was there any real dispute that the alleged conduct, if proven, would constitute a number of unlawful sexual acts.
The central issue in this trial became whether the prosecution had proved beyond reasonable doubt that at least two unlawful sexual acts had occurred as alleged.[2]
[2] Prosecution address, T 210. Defence address, T 236.
The course of trial
The prosecution case consisted of:
·Evidence from the complainant as to the alleged unlawful sexual acts.
·Evidence of an initial complaint by the complainant in 2021 to his girlfriend, Ms S. That evidence was led from both the complainant and Ms S.
·Evidence of suggested admissions by the accused made during conversations on 8 June 2021 with the accused and Ms S.
·Evidence of suggested ‘admissions by silence’ by the accused during a speakerphone conversation on 18 July 2021 between the accused, Ms S and Ms S’s mother. Most of that conversation was recorded by a friend of the complainant who was also present.
·Evidence from the complainant’s two brothers as to background, the family history, moves between houses, and family situation generally over the years. Neither witnessed any alleged offending.
·Agreed facts; comprising the accused’s birth date; the dates that the family moved rental addresses during the relevant periods; that the tendered recorded conversation was recorded on 18 July 2021; and that the complainant reported the matter to police on 18 July 2021.
The accused did not give or call evidence.
Legal principles
As this is a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision. Whilst sufficient reasons must of course be given to properly explain the verdict,[3] a trial judge, sitting alone, is not obliged to express all the matters ‘which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law’.[4] To be clear however, the court has applied all the principles applicable to a criminal trial of a charge of this nature that would be set out by way of all the standard directions to a jury. It serves no purpose to set out pages of standard form directions, however they have all been applied.
[3] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[4] Mardou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150 at [6]-[25].
It is fundamental that the accused has, and always retains, the presumption of innocence. The prosecution at all times bears the onus of proof and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence and must do so based only on the evidence relevant to that offence.
Evidence of the complainant’s initial complaint was led.[5] Complaint evidence has a limited purpose and relevance. It is not admitted and cannot be used as evidence of the truth of what was alleged; It is admitted to inform the court how the allegations came to light and as evidence of the degree of consistency of conduct (or otherwise) of the complainant. Consistency of conduct can be assessed in three ways; by the making of a complaint; by making a complaint at the time one might expect it to be made; and through the consistency of the allegations made.[6]
[5] Evidence Act 1929 (SA) s 34M(4); R v Jones [2018] SASCFC 80, [164].
[6] R v S, T (2017) 128 SASR 66, [149]; [2017] SASCFC 67, [150].
It was suggested at trial that the complainant had made prior inconsistent statements. That evidence is not evidence of the truth of what was said but is relevant to assess the witness’ credibility. It will be assessed in accordance with the settled law as to alleged prior inconsistent statements.[7]
[7] Driscoll v The Queen (1977) 137 CLR 517. R v Trabolsi [2018] SASCFC 57.
As this trial concerns events that are said to have occurred at a time when the complainant was 13 to 16 years of age and he is now 24, the alleged events are a number of years old.
The law recognises that this passage of time means that the accused is at what is known as a forensic disadvantage. The passage of time will have had a significant impact on the accused’s ability to respond to these allegations and test the case against him. Due to the passage of time, witnesses’ memories will likely have faded, which will have impeded the ability of the defence to challenge witnesses on matters of detail or expose where a witness may have been inconsistent, or wrong. For example, if the events were more recent in time, more specific dates, times, and circumstances may have been alleged, which such specifics the accused may have been able to address or disprove by evidence.
Whilst one cannot know what evidence the accused might have been able to call, there may for example have been evidence available or locatable to support the defence case had the allegations come to light earlier.
The Court must and will take these disadvantages into account when scrutinising the evidence from the prosecution witnesses, and the case generally.
The accused did not call or give evidence. That is an important right that every accused person has. As such, no adverse inference whatsoever can arise where an accused person exercises that fundamental right that sits at the core of the adversarial trial process.
The prosecution case
As the prosecution case relies heavily on the evidence of the complainant, and the defence submit that his evidence be rejected as unreliable and insufficient to ground a conviction, it is necessary to set it out in some detail, and carefully scrutinise it. It will not all be set out, but it has all been carefully considered.
It was agreed that the accused was born in September 1974 and was at all material times an adult.[8]
[8] P2, Statement of Agreed Facts.
It was not in dispute at trial that the complainant was born in July 1999.[9]
[9] T 63. It was never put to the complainant that this was not his date of birth.
It was agreed that the accused and the complainant lived in tenancies in the following suburbs for the following periods:[10]
·9 August 2013 to 1 August 2014 at Munno Para West.
·1 August 2014 to 26 June 2015 at Blakeview.
·June 2015 to some time in 2017 (bond refunded on 4 July 2017) at Craigmore.
[10] P2, Statement of Agreed Facts.
Accordingly, it was not disputed that the complainant lived at the Munno Para tenancy from the age of 14 and had turned 15 when the family moved to the Blakeview address where he remained 15 for the duration of that tenancy.
The complainant and his brothers outlined the family’s history. At the time of the alleged offending, the family comprised the complainant and his twin brother, an older brother, and an older half-sister. The older half-sister did not live with them at the time of the alleged offending, and is not relevant to the issues at trial.
The complainant gave evidence that when he was about five years of age their parents had separated, and after an initial period of shared custody, his mother moved away from Adelaide to regional South Australia and the children only saw her sporadically.
Family court proceedings ensued, after which contact with the mother reduced and by the time the complainant was seven or eight, he effectively ceased to visit or see his mother. From that time forward the three boys lived with their father, although the older brother maintained some contact with their mother over time.[11]
[11] T 65-66.
The complainant gave evidence that up until the time the family was living in Munno Para West, to that point he had enjoyed a normal childhood and nothing untoward had occurred. The complainant said that things changed at around that time.
The complainant gave evidence that the accused started to make joking remarks about the accused’s body, saying things like he had a ‘cute tummy’ and was ‘so skinny’, and would smack him on the bum. He would then mimic his father’s behaviour and smack the accused on the bum.[12] The complainant gave evidence that as time passed the behaviour escalated, such that the accused would hug him, then during the hug the accused would grab his bum instead of just smacking it.[13] Then the accused began to put his hands down the complainant’s pants and grab his bare bum, which again the complainant would mimic.[14]
[12] T 67.
[13] T 68.
[14] T 69.
The complainant gave evidence that this continued over time, for some weeks and months, and he began to feel the accused having an erection, which the accused would rub against him during the hug. The complainant said that he then began to have an erection during these events, and they would be rubbing their penises against each other as they stood there hugging.[15]
[15] T 70.
The complainant said that things then ‘progressed further’. In his words:[16]
QAnd when you say it progressed further, what did it progress further to.
ASo I recall when - I guess one incident when we were in the kitchen and both standing there and the same behaviour was mimicked when it was - it would, you know, joking with smacking each other on the bum and then having a hug and touching each other's bums and then hands would be down each other's pants touching each other's bums and then I guess on that I remember this incident where he moved his hands from reaching around from grabbing my bum whilst hugging, still whilst in my pants, but I guess going around the hip, ended up touching my penis and I guess skin on skin contact and still whilst wearing, both wearing our clothes and that occurred. And I remember copying his behaviour and doing the same thing and touching his penis as well. I guess just - I guess when it first started it was, I guess, sort of fondling type of behaviour and then it escalated to masturbating and so I guess this - that behaviour, I guess - the scenarios would involve that happening as a regular pattern and then it continued to progress and I remember - I remember one night when (brother) and (the other brother) had gone to bed, it was just me and him on the lounge and watching TV and I remember it was at the house, it was an open lounge room and kitchen area and dining areas all open and we had like an L shaped lounge and you could see the tiles were a white and very, I guess very glossy tiles and stuff and I remember we were both lying there on the couch, sort of one lying there on the couch and one behind another and I could see the - looking on the floor, I could see the TV in the reflection and both my brothers had gone to bed and I guess as we're lying there the, the touching had begun and our hands were down each other's pants again and touching each other's bums and penises and fondling and masturbation and then I remember him undoing - like, loosening his pants and pulling them down a bit so his penis was exposed and then I did the same thing and then we just, I guess, continued mutually just masturbating one another and touching each other.
[16] T 70-71.
The complainant gave evidence that this kind of activity then continued over time. They would drop or lower their pants, but not usually take them right off. There would be touching and mutual masturbation. No-one ejaculated. Nothing was usually said during these events, they would just eventually conclude and ‘… I guess the day would sort of go on like normal’.[17] The accused said that this new type of event then became ‘the new behaviour that was normal in a way’ and continued.[18]
[17] T 73.
[18] T 73.
The complainant said these events would never occur when his brothers were present. It would occur either when the brothers were not in the house or when they were asleep in their rooms.
The complainant said he also vividly recalled another incident where the incident ‘escalated’. It was in the morning before school. In his words:
AIt was basically - that was as far as it escalated the majority of times, not only towards the incidents that occurred, they escalated and I remember one - so the first time it happened quite vividly was in the morning before school.
QThe first time what happened, that it escalated.
AYeah, that it escalated. So in the morning before school my brothers were still asleep and that was the week I'd gotten up and (the accused) was awake as well and I guess just in the kitchen getting ready for school, having breakfast and the same pattern of behaviour occurred again where he sort of would hug me and grab my bum and then we would continue grabbing each other's bums and penises under the clothes and then it would then proceed to pulling our pants down, not taking them off completely, but just down to our ankles. I remember being a time when we're in the kitchen and both standing, and we would just be there I guess one just standing in the kitchen and one of us in front of the other and at times we would - at times we would face each other and mutually touch each other and masturbate. At other times one of us would turn around so we were both facing the same direction and again just mutually masturbate and touch each other. I remember sometimes he would - I would face the other way and he would sort of squat down and have my legs sort of wider apart and he would place his hand or his arm in between my legs from behind me and masturbate me, masturbate me that way and then it would sort of return to just to stand both of us standing up and mutual masturbation and then I guess that was just the - that would occur in all the situations except for this time. I remember him - us standing in the sort of in the entranceway of the kitchen that that was just right by the hallway door and where all the bedrooms were and he kept on - he was standing in front of me and I was behind him and we would touch each other and he kept on continuously looking down the hallway, looking if my brothers had woken up or listening out if they were coming at all and kept on touching each other and he kept on looking and then at one point I was facing - we were facing each other and he knelt down on the ground while I was still standing and then he performed oral sex on me.
QAnd when you say he performed oral sex on you, what did he do.
AHe placed his mouth around my penis and performed oral sex while I was still standing and he was on the ground and it didn't - it would have only occurred for a few minutes if anything and then - then he got back -[19]
[19] T 75-76.
The complainant became obviously and visibly upset while giving this evidence. A short time later, he continued:
AYes, after I guess the oral sex occurred, then I guess we just sort of stood up and I don't recall if the mutual touching and masturbation occurred for much longer after that. We would have just pulled our pants up and sort of the day continued like any other day like nothing had happened. I got ready for school and went to school and it just, you know, I still remember it and I remember at school as well when after gym and PE stuff and going back when PE had finished, and going back to the change rooms to get our bags and our belongings and in the gym in the hall there was I guess two double doors to the male bathrooms and stuff. I just remember I guess sort of a group of us boys going, pushing through them doors and going to the bathrooms and everyone sort of chatting and stuff like that and I just remember thinking in my mind that in that morning that I guess the exact thoughts was that my dad had given me a blow job in that morning and that had happened and yeah, just sort of feeling, not knowing how to feel about it.[20]
[20] T 76-77.
The complainant gave evidence that he was still living at the Munno Para West house at that time. He was asked if oral sex had occurred on any other occasions:
QThe oral sex that you've just described, did anything like that happen on any other occasions.
AThere was one other occasion that it occurred, and I remember it was in (the accused's) bedroom. I don't remember, I guess, as much as what happened before or what that means as going into the bedroom as such, but it was still the same pattern of behaviour where there was mutual touching with hands going down each other's pants and that led to our pants coming off and the mutual masturbation would continue and then this was not long after he had performed oral sex on me and then in the scenario I performed oral sex on him and that occurred for, again, not very long at all. I remember after it occurred, I remember him saying something along the lines of 'That felt nice' and that was, I guess, the only time he ever said anything like that.
QHad anything been said to you for you to start performing oral sex on him.
ANothing had been said, it was just the way, as such. I was groomed in this behaviour that whatever actions he did I would reciprocate and do back to him as well.[21]
[21] T 78.
The complainant said that these were the only instances of oral sex.
The complainant said that in the later stages of the tenancy at Munno Para the accused formed a relationship with a woman he met through their church, and so long as that relationship continued, the accused’s joking, touching and sexual behaviour towards the complainant stopped and everything went back to normal.[22] During that relationship, the family moved to a new rental property in Blakeview.[23] Towards the end of the Blakeview tenancy the relationship broke up, and the complainant recalled that another sexual act occurred: [24]
QAnd between moving to Blakeview and the break-up between your father and (the accused’s girlfriend), had there been any further sexual acts between you and your father.
ANo, there was no sexual acts while they were together unless it was after the break-up, and we were still living there for a short period of time, we were still there and, basically, then there was I recall an incident occurring there as well and it was before church. Because (the accused) often was running late or behind and stuff and (brother) had his P1 licence by then. And so, him and (the other brother) left for church together on time and I stayed behind. I remember he was in his bathroom getting ready for church about to have a shower and asked if I could get his towel and some clothes. I remember going in the bathroom to give them to him and he was still clothed and then, yeah, the mutual masturbating and everything like that occurred and I guess it already started as touching, putting our hands down each other's pants, and touching each other, our bums and penises and then our hands also came off and mutual masturbation was happening. And again, it just occurred for a short period of time, and then I remember I got dressed and I think he just closed the door and he had a shower and then we both left and went to church.
QI think you said it happened 'in his bathroom', was there one bathroom or more than one bathroom at that house.
AI'm quite sure it was in his ensuite, so there would have been two, two bathrooms.
QAnd you said your brothers were at church, was there anyone else in the house, at that time.
ANo.
[22] T 80-81.
[23] T 82.
[24] T 83.
The complainant gave evidence that when the family moved from Blakeview to the Craigmore tenancy the sexual acts continued.
The complainant said that he could recall a specific instance at Craigmore, wherein the accused’s attitude seemed to change. The complainant described an occasion during the day when his brothers were out, whereby something occurred in the accused’s bedroom. The sexual acts proceeded to mutual masturbation as usual, but after the event the accused’s attitude was different.
The complainant said that on that occasion after the masturbation stopped the accused became serious and appeared as if remorseful, saying that what had been occurring had to stop: [25]
QAnd tell us what was said afterwards on that occasion.
AIt was something along the lines of 'We - we shouldn't have done that, and we need to pray and ask for forgiveness', and it was, I guess, yeah, more serious and then I remember we moved into the lounge room and I was up in the bedroom. We both were dressed - got dressed and then moved into the lounge room and he went and found some - some of that brown thin twine rope you get and he got some of that and got some scissors and we sat down in the lounge room and he was basically - yeah, he sat down and we prayed, and I remember him - him saying about asking for forgiveness and that - yeah, just praying that it stops and that it doesn't keep on happening. I remember him saying he was cutting the rope and - I guess symbolising that it had, I guess, broke the pattern of behaviour that was occurring.
…
Yeah, I was definitely more confused as to - I guess before he wouldn't - wouldn't say anything, wouldn't be remorseful or say, you know 'It shouldn't have happened', whereas, yeah, in that case I was - I was more confused as to why, if we should have stopped, why has it kept on occurring and I sort of - I didn't say that to him, but I was just thinking in my head, just questioning why, why was it still occurring if it was serious? Why hadn't it stopped?
QDid things stop at that time.
ANo. It still occurred, several incidents after…
[25] T 84-86.
The complainant went on to describe a further similar instance he could recall occurring at the Craigmore house. On that occasion it occurred in the bathroom.[26]
[26] T 87.
The complainant gave evidence that after these events, at about six months into the Craigmore tenancy, he started questioning what was happening, whether it was actually meant to be happening, and whether what was happening was right. The complainant said he came to the realisation that he wasn’t comfortable with what was happening, that it wasn’t right, and it wasn’t OK, especially since the accused was his father. Consequently, when the accused would go to smack his bum or make remarks to instigate sexual contact, the complainant would walk away and not engage as he had previously done. [27]
[27] T 88-89.
So, on the complainant’s evidence, the unlawful sexual acts ultimately ceased about six months into the Craigmore tenancy, which would have been towards the end of 2015, at a time when the complainant was 16.[28]
[28] P2, Statement of Agreed Facts.
Ultimately in 2021 the family unit separated when the accused and the complainant’s older brother moved to a different house, and the complainant ended up sharing with a friend (who shall be referred to as K), and the complainant’s girlfriend Ms S. Ms S moved into the house in early 2021.[29]
[29] T 94-96.
The complainant gave evidence that the first person he told about the alleged events was Ms S. He said he told her in May or June 2021 in the course of an argument. He said that the abuse had been on his mind, and in the context of an argument with Ms S, to show her that he trusted her he confided in her ‘about the sexual abuse’.[30] He described the conversation in the following terms: [31]
QI am going to need you to tell me just as specifically as you can, as best you remember what it is you, in fact, told her.
ASo, I told her how I was sexually abused by (the accused) and she asked me how old I was and I said I was about 13-15 that it had happened and she asked if anyone else knew or if I'd told anyone and I said 'No'. And, yeah, she asked what had happened, I said it was just touching, I guess, for the most part. I said touching each other and, like, mutual masturbation that occurred. I said there was never - I guess, never any penetration or anal sex or anything like that occurred, I said, but there was oral sex I said that occurred that he performed on me and that I performed on him in two separate - I said that basically occurred, like, once.
QDid she say anything else back to you.
AI just remember saying sorry and that it wasn't my fault and at that stage I remember saying that I wasn't - basically, I wasn't ready to go to the police or do anything like that and she sort of just comforted me and said that was okay and, I guess, that we'd get through it and process things and that.
[30] T 96.
[31] T 97.
The complainant said that at that time he was still in touch with his father. He said that he and Ms S discussed the matter, and he decided that the first step was to confront the accused about the sexual abuse, so he could start processing what had happened. Therefore, he arranged for the accused to come over for a general catch-up. Ms S waited in the bedroom. He described what happened in the following terms:
… I didn't tell him over the phone what, I guess, what I was inviting him over for, it was just, I guess, a general catchup as far as he was aware and, yeah he came in, sat the biscuits down and stuff and we were in the kitchen and I told him - I said - he said 'Is everything okay?' I said, 'We need to talk' and he said 'About what?' and I said 'We need to talk about what happened when I was younger'.
He was just sort of nodding and said 'Okay' and I think I answered that 'Are you?'
We headed over and sat down on the couch and, I guess, before I could start speaking I just sort of started breaking down and crying and he just sat down on the lounge, I guess, beside me and he said 'I'm sorry' and I told him - I said ... occur - I said 'Those things that happened when I was younger' I said 'The sexual abuse' I said 'They happened far too long'
I said 'I wanted to let you know that what had happened wasn't okay' and he just continued saying 'I'm sorry' and he asked 'What can I do, what can I do to help' and I said 'Nothing' I said 'Nothing, I just want -' I said 'I need time to process this, I need to have a break from you' and he was asking if I've told anyone and I said I'd only told (Ms S).
I told him I wasn't going to go to the police about it. I said 'I've only told (Ms S)' ... I said 'I need to have a break' and he just continued saying 'I'm sorry' and, I guess, even from when I initially told him about it he just sort of - he just became very red and blushed and, yeah, as we were talking and saying that he just - continually throughout the whole conversation, just saying 'I'm sorry' and 'Is there anything I can do?' and he said - when I told him that (Ms S) was the only person that I've told he said 'Can this not go any further? Can you not tell anyone else?' I said, 'I don't know at this point, I said 'I just need time to process things'. I said 'I need to have a break' and I think there was, I guess ... most of it when I - when we had a conversation one-on-one and then he - cos he knew (Ms S) was hurting and he said 'Can I talk to (Ms S) and apologise to her?' and so I went into our bedroom for a minute, closed the door and spoke to (Ms S) and I sort of, I guess, filled her in…
The complainant said that Ms S agreed to come out from the bedroom so that the accused could apologise to her: [32]
…she came out to the lounge room, and he was just saying to her as well that he's sorry and - I remember him asking me prior, when it was just one-on-one, he asked if I would forgive him, and I said, 'I don't know at this stage'. I just kept telling him 'I need time to process this'.
And then he said to (Ms S) as well, he said - he said, 'I'm sorry'. He said, 'Can you forgive me?' And she said - she said 'There's no way' or along the lines of, like, there's basically no way she would ever forgive him. And how he as a father could ever do something like that to his own child. And yeah, just basically how that was - how wrong of him to do those things, and how much he sort of I guess had an impact on my life now, and sort of has ruined things. Yeah, he just kept saying - yeah, he kept saying 'I'm sorry. Is there anything I can do?' And that was with both of us there as well, he said 'I'm sorry. Is there anything I can do?' And he was saying that - I remember him saying 'I'm not a -' he said 'I don't think I'm a bad person'. I said, 'No one can say if they're a bad person or not'. I said, 'What had happened had gone on far too long', and he just sort of I think sat there, nodding.
And then he asked me, he said 'What's going to happen in the future with family events?' Especially because I know at Christmas time as well with all I guess like grandparents and stuff like that, there would be a few of us together, family and that that would get together. He didn't I guess refer to that specifically, but he said, 'What would happen in the future with family events'. I said, 'I don't know'. I said, 'I just need time to process this', and 'I need a break from you'.
And he kept asking can this not go any further than myself and (Ms S). I said, 'It's up to me if I tell anyone'. I said, 'These are your consequences of your actions'. He said 'What about my birthday' that was coming up the following month. He said, 'What about your birthday?' He said, 'Do I leave you a present out' - I think out the front, or 'Do I put a letter in the letter box?' And I said, 'I don't care'.
And I think there was just more silence after that.
And then he - I think he asked again, I think he asked if I'd recorded it or am I going to the police, and I said no. I said, 'I'm not'. I said, 'I just need a break'.
And I think after that he - I think I said, like that was - like, that was basically the end of the conversation, and he got up to leave, and he said, 'Would you like a hug or a handshake?' And (Ms S) and I both - we stayed seated, and I said 'No'. And he left. He left, went through the front door, I think. He got in his car drove off.
And then (Ms S) and I were still in the lounge room in the same spot, sitting down, and he came back just a few minutes later and he was very frantic, and I think more pale, and just, yeah, very, very panicked, and he asked - he said am I definitely not going to the police, am I - I didn't record it or anything like that. And we both showed him our phones, that we weren't recording it. I said, 'I'm not going to the police'. And we had a dog as well that we - I guess prior, she was living with us at that Pooraka house, and then she didn't go with them when they moved because she was a bit - I guess a bit of a family dog beforehand. I said, 'If you want to see the dog' I said 'You can text or call us', I said I'd work something out. But that was it. And then, yeah, he left.
[32] T 100-101.
At that point in the trial, unfortunately defence counsel became unwell, and the matter was unable to reconvene for two weeks. The trial reconvened on 18 October 2023.[33]
[33] The trial adjourned part-heard on 4 October 2023, substantively resuming on 18 October 2023.
The complainant went on to explain how he discussed the matter with Ms S who encouraged him to go to the police, then after speaking to Ms S’s mother as well, decided that it was the best way forward to deal with his problems and what had occurred in the past.
The complainant also had a conversation with his older brother. The complainant said he was angry and frustrated with what he heard from his brother that the accused had said to his brother about the matter. For all these reasons he wanted to ring the accused and confront him about what had happened.[34]
[34] T 111-112.
The complainant said that accordingly he rang the accused and put it on speakerphone. Also present were Ms S, Mr S’s mother and friend K. He later discovered that K had recorded most of the conversation on K’s phone. The complainant said that the initial (unrecorded) part of the conversation was directed to the conversation which the accused had had with the complainant’s brother.[35]
[35] T 112.
The recording of that conversation was tendered.[36] The first one minute and 30 seconds of the audio recording is as follows:
[36] P1.
The complainant: But I’m talking about you.
The accused: I said to (the complainant’s brother), I said I’m not going into it… all I … that, that’s what I am saying to you.
The complainant: So you haven’t caught(?) up that was me.
The accused: (The complainant’s brother) asked what happened and I said that (the complainant) said that you spoke to (the complainant’s girlfriend), and you told her everything, and then you said you wanted to have a talk with me and you said that you wanted a break, and then you said to me, when you were younger, something along the lines of, I could have stopped, I, I should have or I could have stopped things quicker.
The complainant: The whole ordeal should have stopped a lot quicker. And you as a parent you as my dad should have stopped it and it shouldn’t have started. But you know how it went on for years.
The accused: Ahhm. Do you want to talk in person or not.
The complainant: I’ve told (inaudible) bits and pieces.
The accused: Right.
The complainant: So does (inaudible) as well.
The accused: My question is do you want to talk in person or not?
At that point, Ms S’s mother joined the conversation. She made specific allegations of sexual offending, over the course of some eight minutes, expounded the trauma and upset he had thereby caused to the entire family, challenged him to admit what he did to the complainant, questions his sincerity, and in the absence of such admissions then ultimately threatens to go to the police. As the conversation progresses, she leaves long pauses for the accused to respond but on each occasion the accused remains silent.
Ms S’s mother commenced by saying to the accused that he is a liar, and that his son and her daughter are suffering because of ‘the shit you’ve done’, and that she has just spent three days with them on account of it. She tells him that for a man who goes to church to think he could ‘put this shit on’, then asks who in their right mind would say that their own son initiated it.[37] She then tells the accused that he should admit to his son ‘what you fucking did to him’, and that ‘you put your filthy fucking hands on your son’ and that she is going to report it to police. She leaves a long pause during which the accused remains silent.
[37] The likely inference is this is a reference to what the complainant gave evidence he had heard from his elder brother, that the accused had told the elder brother about the matter which had made the complainant angry and frustrated.
Ms S’s mother continues by accusing the accused of trying to manipulate the complainant to come around to his house, that the accused is lucky his son is even talking to him, saying ‘how dare you do that to him, your son’. She then discusses how badly it has affected both the complainant and her daughter, saying ‘what you did to your son is absolutely fucking disgusting. You are a filthy, dirty, fucking crazy, you are not even a man’. She leaves a pause during which the accused remains silent. She says ‘you are disgusting’. She leaves a further pause during which the accused remains silent.
Ms S’s mother soon becomes even more pointed and specific:
And for you to not even have the balls to admit it to your son and just … I listened to you for the last 3 minutes and ‘I said, you said’. Why don’t you just say ‘Yes, I touched you and I shouldn’t have. Yes, I had filthy fucking things that I did to you, and I shouldn’t have. Because I am your father and I’m supposed to protect you and love you and bring you up, and if I’ve got urges like that…’, you know what, go get a friggin’ hooker, go somewhere else, don’t do that to your child. What is wrong with you?
Ms S’s mother then leaves a pause during which the accused remains silent. A little later in the recording Ms S’s mother says:
I don’t understand this (the accused), I don’t get it. You did what you did. Let your son fucking live his life and admit to what you did, and hold accountability for it.
Ms S’s mother then leaves a pause during which the accused remains silent. Ms S’s mother continues:
He’s going through a lot of shit, and my daughter is wearing the brunt of it. Her first proper relationship. And she cares about him, clearly. But I’m not going to let her suffer for what you did. (a pause occurs during which the accused remains silent) You need to fix it.
Ms S’s mother then leaves a lengthy pause of over 30 seconds.[38] The accused does not respond and remains silent. Ms S’s mother continues:
I don’t know what you’ve done (the accused). I have no idea what you’ve done, I don’t know. (a pause occurs during which the accused remains silent) But I thank God that I don’t. And believe me I believe in him; trust me I do.
[38] 6.15-6.52 of the audio recording.
Ms S’s mother then leaves a further lengthy pause for just over 30 seconds.[39] The accused does not respond and remains silent. Ms S’s mother then asks:
Ms S’s mother: Do you have anything at all to say?
The accused: Ah, no, no.
[39] 7.08-7.40 of the audio recording.
Ms S’s mother then repeats that she is about to call the police, that she is not going to let the complainant and Ms S’s daughter go through ‘this shit’ by themselves, all the while the accused purporting to be a nice, church-going guy. She posits that the complainant has no reason to be lying, that these days these things don’t go down too well and that no matter how well the accused tries to cover it up or make shit up, the truth will come out. Ms S’s mother again pauses, during which the accused continues to remain silent.
Ms S’s mother then says to the accused:
But there is no way I am walking away from this, knowing exactly what you’ve done to your son, and saying nothing.
Ms S’s mother again pauses, during which the accused continues to remain silent. Ms S’s mother then says to the accused:
Ms S’s mother: And I don’t mind at all if you record this, that’s fine because I’m not worried at all.
The accused: (after a long pause) I’m listening, but not recording.
Ms S’s mother then observes with a degree of sarcasm that she can hear in the accused’s voice that he is remorseful and sorry, to which the accused does not respond. Ms S then briefly remonstrates with the accused and the call is terminated.
When this recording was played in court, the complainant became obviously upset, and cried for a substantial part of its duration.[40]
[40] As noted at T 116.
The complainant gave evidence that he reported the matter to police on that same day. It is an agreed fact that the recording was made on 18 July 2021 and that the complainant reported the matter to police that same day.
The complainant was then cross examined for an extended period. He was taken through the evidence in detail, and his evidence remained broadly consistent with his evidence in chief, most of which had been given two weeks earlier.
The complainant agreed he gave an initial statement to the police on 17 August 2021, which was given to him in typed form to sign on 18 August 2021. The complainant agreed that in that statement he had described the complainant performing oral sex on him in the bedroom rather than the kitchen, and had said that ‘following this’ he reciprocated and began performing oral sex on his father. He agreed he had given the statement, explaining that at the time the events were over five years previously and at the time he gave the initial statement that for whatever reason his mind had combined the events, but that he had corrected the statement at a later time prior to trial.[41] The complainant said that:
AI think to be honest a lot was happening when I gave this statement and it was very, all of it was very overwhelming and now having this time I've gone through lots of therapy and gone a long way to I guess calm myself and look back at things better and much healthier way and I can see things clearly now.
[41] T 124-125.
It was put to the complainant he had told Ms S in June 2021 'There was oral sex as well, it was just one time that that happened. He did it to me but then I did it to him'. The complainant responded that he did remember telling Ms S that it had happened one time with himself performing an act on the accused and one time with the accused performing the act on the complainant, but he had not been necessarily telling her they occurred at the same time.[42] The complainant agreed that he had not included that the accused was looking down the hallway during the kitchen fellatio incident, in his initial statement. He explained he was referring to more than one incident.[43] When the different location of the fellatio was put to him, he further addressed the circumstances whereby he gave his initial statement: [44]
ANo, I believe at this time of August 2021 was a time when I was still very, very flustered and it was a, I guess a big thing I was going through and talking to the police about it and giving statements, and I guess at that stage that was something I overlooked and made a mistake and hence I made the amendment of the affidavit and corrected it.
[42] T 127.
[43] T 131-133.
[44] T 134.
The complainant agreed that while he had responded in the course of cross-examination that on several occasions after a sexual act the accused might have said ‘we shouldn’t have done that’ in a joking manner, in his 18 August 2021 statement he had only mentioned one incident where the accused had said that. He said that when he had given evidence that generally nothing was said, that was a reference to during the incidents themselves.[45]
[45] T 142-144.
The complainant was cross examined in detail as to the events, for example which sexual event related to the rope cutting incident, which sexual event preceded the accused becoming remorseful for the first time and he agreed that he could not recall all the details of every event that had occurred over 5 years previously, but he could remember the two circumstances whereby the accused became remorseful, and he could remember the rope cutting incident, although he could not be certain about the order of them.[46]
[46] T 146-147.
The accused agreed that the family were close, and did a lot together, but that he was not close with his brothers in the sense of speaking about feelings or having deep conversations.
Defence counsel put to the complainant that none of the alleged sexual acts occurred, nor was there a rope cutting incident. The complainant responded that the events did all occur.[47]
[47] T 160.
Then Ms S gave evidence. Ms S gave evidence that she had been in a relationship with the complainant since December 2020, and as at June 2021 they had been living together for four months.
Ms S gave evidence that they were having an argument about communication and in the course of that argument Ms S said to the complainant that nothing was ever off topic with her, and that he could be honest and open with her. At that, the complainant came out with the fact that he had been abused as a child, saying ‘My dad touched me as a kid’ She asked when it happened and he told her it started when he was 12. She asked him how it happened and what would happen and the complainant told her that his dad would initiate things in the loungeroom while his brothers were asleep, and that it involved touching, and that it involved orally one time as well, and that it had gone on until he was 15.
Ms S gave evidence that she was told specifics about one event:
AWhen he told me that it happened orally, he said that it happened in the kitchen one time, (the accused) had performed oral sex on him before school and he remembered walking into the school gym feeling different, feeling weird and remembering what had happened that morning. And I guess in disbelief. He was very ashamed and embarrassed, and I was the first person that he had told, so it was quite emotional for him.
Ms S gave evidence that the complainant was crying and hysterical throughout the conversation. Ms S explained what occurred that led to the 8 June 2021 conversation between them and the accused: [48]
QDid that conversation come to an end.
ANo, I basically, I told him that I thought this was a dangerous situation, I said to him that he should go to the police about it. He had only just come out with this, so I guess he wasn't ready to at the time, and he said he didn't want to go to the police. At that point in time he didn't have a very good relationship with his mum either so (the accused) was basically his sole parental figure. And I said to (the complainant) that 'I think you should at least have a conversation with your father'. I said, 'Have you ever spoken about the abuse?' He said 'No'.' I said, 'Has he ever apologised to you?' He said 'No' and I said to him that I think it would be a good idea for him to talk to (the accused) because it might give him some sort of closure. We basically agreed that night that he would have a conversation with (the accused), and I just said to (the complainant) maybe just to organise it as if it wasn't on the topic of the abuse but just as if he was popping by. I said, 'I don't feel comfortable with (the accused) coming over anymore'. And I also advised him to tell - not to tell - sorry, to tell (the accused) not to come to soccer as well because that was something that (the accused) would be a part of usually.
[48] T 165.
Ms S gave her account of the 8 June 2012 conversation. She was initially in the bedroom and all she could hear was the accused saying ‘sorry’ multiple times, and ‘I love you’.[49] Then she joined them in the lounge. She described events in the following terms:
[49] T 166.
QWhat happened when you went out there.
AWhen I walked out (the accused) was sitting on the couch. We had, like, two what you would call it, it was like an L-shape, but it was two sofas side by side. I went and sat on the couch, and he looked pretty frantic, and he just said to me '(Ms S), I'm so sorry and I want to apologise to you' and I just said to him 'You don't have to apologise to me for nothing. It didn't happen to me, it happened to (the complainant)'. I said, 'I think you are disgusting' and I said, 'No matter how much you pray to God you will never take what happened to (the complainant) away from him' and I said, 'If it was up to me we would be down at the police station right now'.
QDid (the accused) respond.
AYes.
QWhat did he say.
AHe said that he was a good person.
QWas anything else said.
AApart from the fact that he was just sorry, (the complainant) did intervene in the conversation and said that 'Dad. Why did you do those things to me?' And he just said, 'I'm sorry, it should have stopped' and (the complainant) said that 'It went on for too long' and he didn't really have nothing else to say to that. Then after that he just asked if we could keep it between the three of us and I said 'No'. I said 'If (the complainant) wants to talk to anybody about this he can. If he wants to go to the police he can do that as well. It is not going to be slid under the rug. It is up to (the complainant)'.
QDid (the accused) respond.
AHe just said 'No police'. At the time we said that we weren't going to the police.
QWas anything further said.
AHe just asked us what this would mean for family events and basically that if he went, we wouldn't go and if we went, he wouldn't go and vice versa. I just said to him that I didn't want him coming over to the house anymore. At the time we had the family dog as well so I said - and his belongings were in the shed, so I said if he needed anything from the shed, we would organise not to be home and that if he wanted to see the dog that we wouldn't be there either.
QHow did that conversation come to an end.
AIt was I guess an awkward conversation. So, he just stood up and tried to give (the complainant) a hug. (The complainant) said 'No'. He tried to give him a handshake, (the complainant) refused again. Then he stood up and left. I could tell he was very panicked because the whole time he was very sweaty and red. He walked out and he left, and I basically went to comfort (the complainant) because (the complainant) was obviously upset and then basically I heard the car start and then I heard him come back and he knocked on the door. I opened the door. And he said, 'Oh you weren't recording any of that, were you?'. (The complainant) said, 'We weren't recording anything' and he just left.
In cross examination Ms S said that since speaking to the police she had not discussed the alleged events with the complainant. Ms S agreed that in her initial statement she recounted how she had been told of the oral sex happening, but did not mention in her statement being told that it occurred in the kitchen. She explained that she just missed out that detail at the time and amended her statement by adding it later.[50]
[50] T 173.
Ms S agreed that she did not mention in her initial statement that the complainant had told her that on the day the oral sex occurred he went to school and was walking around the gym thinking about what had happened. She responded that she mentioned that in a subsequent statement. She said that at the time she made the initial statement she had not slept for two days, and it was a very stressful situation, so she may have missed out a few of the finer details in her initial statement.[51] Mr S agreed that she had secured a mental health care plan. She agreed she had encouraged the complainant to go to the police.[52]
[51] T 174.
[52] T 175.
The accused’s twin brother gave evidence as to the family history, the houses they lived in, and generally. He did not witness any sexual behaviour between the accused and the complainant, nor did the complainant mention anything to him. He agreed that the Munno Para house was relatively small, and that you could generally hear what was going on in it.
The complainant’s older brother also gave evidence as to the family history, the houses they lived in, and generally. He gave evidence that as a general rule he would be up earlier in the mornings, but that he would also spend more time in his room studying or practicing his instrument. He did not observe anything of concern or out of the ordinary.
The prosecution case concluded with the agreed facts.
The defence case
The accused did not give or call evidence at trial. As explained at the outset, no adverse inference whatsoever can arise where an accused person exercises their important and fundamental right, which sits at the core of the adversarial trial process, to silence. Silence at trial is not an admission, it cannot fill gaps in the prosecution’s evidence, be a makeweight for a weak prosecution case, nor does it make the prosecution’s evidence stronger, or more persuasive. It remains fundamental that the prosecution must always prove its case beyond reasonable doubt.
The defence case, as represented by the accused’s plea of not guilty, the matters raised and put by My Ey during the trial, and as urged in the accused’s final address, is that the accused is not guilty, and that the evidence led by the prosecution is insufficient to convict the accused.
Addresses
The court was assisted by clear, concise, and to-the-point addresses by both counsel.
In short, the prosecution submitted that the complainant was a reliable witness who should be believed, with many of the details being such that ‘they could only be true’. For example, the prosecution reminded the court of the complainant’s evidence that the sexual acts paused when the accused secured a relationship with a girlfriend and recommenced when it ended. The prosecution reminded the court of the rope cutting incident evidence, and put that such evidence was consistent with the accused being a religious person who was genuinely struggling with what he was doing with his son.
The prosecution submitted that there was an element of riskiness in the alleged conduct by the accused, but that was the case with a lot of sexual offending against children, and that risk might be part of the thrill for an offender.
The prosecution argued that the complaint evidence was consistent with when, and to whom the complainant might be expected to complain, and that the details were brief but broadly consistent with the complainant’s evidence.
The prosecution argued that the accused’s apologies in the face of the allegations made during the 8 June 2021 conversation amount to admissions, and that applying the test in R v Spencer [2019] SASCFC 76, the accused’s 18 July 2021 recorded conversation amounted to an admission by silence of abusing the complainant.
In short, the defence submitted that the prosecution had failed to prove its case beyond reasonable doubt in light of key aspects of the complainant’s reliability.
The defence submitted that the alleged offending was risky and inherently implausible, particularly where it was alleged that the complainant’s two brothers were asleep in the house at the time.
The defence submitted that the complaint evidence, for example in relation to the oral sex and the rope cutting incident, was not consistent.
The defence reminded the court that in evidence the complainant said that the instances of oral sex were two separate instances, but in his initial statement said it occurred as part of a single event, that in evidence the complainant said it happened in the kitchen but in the initial statement in the bedroom, and that there was also inconsistency as to the circumstances of the rope-cutting incident.
The defence submitted that the allegations could have been an ‘innocent construct’ in the complainant’s mind.
The defence submitted that the evidence of the 8 June 2021 conversation was too vague and unclear to constitute an admission, and that the accused’s silence during the 18 July 2021 conversation should not be taken to connote anything.
Ultimately the defence submitted that the veracity and reliability of the complainant were such that the prosecution had failed to prove their case.
Analysis
The court has carefully considered and re-read the evidence and considered all counsel’s submissions. For brevity not all have been set out, but all have been considered.
The prosecution case rests on the complainant’s evidence, and consequently it has been closely scrutinised.
The complainant gave evidence very well. He was a clear, earnest witness. He made concessions as to his accuracy and recall. He appeared to bear no animosity or ill will towards the accused apart from in relation to the conduct forming the case against the accused.
The complainant’s description of a slow process whereby over time jocular comments led to hugs, then bottom slapping, then bottom squeezing, then rubbing genitalia through clothing, then to touching and eventually mutual masturbation, had the decided ring of truth. His evidence that the offending stopped for the period when the accused formed a relationship, and his evidence as to the accused eventually exhibiting some remorse and unsuccessfully trying to stop himself, was a decidedly realistic and credible aspect of the complainant’s narrative of the events.
In relation to the inconsistencies put to the accused between his evidence and some aspects of his first Police statement, the accused readily admitted the contents of the statement. His explanations were that at the time of giving his first statement everything was very overwhelming, he was very flustered, it was a very big thing he was going through, and in that context he had made the errors or omissions put to him, but that with therapy and over time he had been able to calm down and see things more clearly, and that he had in most respects corrected the errors prior to trial. He adhered to his trial evidence, and that evidence was consistent throughout evidence in chief and subsequent cross examination two weeks later. Having closely scrutinised the evidence, the complainant’s responses were credible, and the court accepts them. Accordingly, they do not impair his credibility.
Any inconsistencies between his and Ms S’s evidence are minor and entirely consistent with slightly differing levels of recall of the same events. Nothing said by his brothers casts any doubt on the complainant’s evidence. Whilst the brothers were honest witnesses, they were not as good historians and where in any minor respect their evidence departs from the complainant the court accepts the complainant as more reliable.
The evidence of complaint was, the court finds, consistent with when and to who the complainant might be expected to have complained, in the course of an argument with his partner about communication, when he had had the abuse on his mind, and she had just told him he could be honest with her and tell her anything. The variations between he and Ms S are understandable matters of recall and detail. The content of the complaint was brief, and in its brevity neither supports or detracts from the complainant’s evidence.
At the end of the day, the complainant was an earnest, palpably honest, and credible witness, whose evidence had the ring of truth, and who consequently the court accepts beyond reasonable doubt.
Ms S was an intelligent, plainly honest and reliable witness. The court accepts her explanations for what was in, and what was not included in her initial statement. She was an impressive witness whose evidence the court accepts beyond reasonable doubt.
The court finds beyond reasonable doubt that the 8 June 2021 conversation between the complainant and the accused happened as the complainant and Ms S said it did.
The court finds beyond reasonable doubt that the complainant said to the accused that he needed to talk to the accused about the sexual abuse that had happened to him when he was younger, and that it gone on far too long, and that he needed to tell the accused that it was not OK, and that consequently he needed a break from the accused. The accused then apologised multiple times and asked if he could do anything, but also exhibited an immediate concern about whether the complainant had told anyone else or had gone to the police. The complainant said he had told Ms S. The accused asked of the complainant that the matter not go any further, and that he not tell anyone else. The accused then asked to apologise to Ms S, who then joined them.
The accused recalled Ms S saying that there was no way she would ever forgive him and asking how he as a father could ever do something like that to his own child. She further responded as to how wrong it was of him to do those things, and how much he had impacted and ruined the complainant’s life, and had ‘ruined things’. The accused kept apologising.
Ms S recalled that at one stage of the conversation between the three of them the complainant said 'Dad. Why did you do those things to me?' to which the accused responded, 'I'm sorry, it should have stopped' and (the complainant) said that 'It went on for too long' and she recalls the accused didn't really have anything else to say to that. Then after that he just asked if it could be kept between the three of them and she said 'No'.
Both recounted the accused’s concern to ensure and check that neither the complainant nor Ms S had recorded the conversation, nor were they going to the police.
Finding that such conversation took place, when the entire contents are closely examined, it is clear that the accused was repeatedly apologising in response to the allegation that he had repeatedly sexually abused the complainant over a period of time. The court finds that when the language is examined, in the context it occurred, the accused’s apologies constituted an admission of the allegation of repeated sexual abuse of the complainant that was being put to him.
As to the evidence of the recorded conversation on 18 July 2021, that evidence will only constitute an admission if on careful examination of its content and context, it should logically be understood as such.
An allegation or assertion made to an accused person eliciting an equivocal or non-response will be probative if the circumstances are such as to leave it open to the court to conclude that the accused, having heard the statement and having had the opportunity to explain or deny it, and the occasion being one upon which he or she might reasonably be expected to make some observation, explanation or denial, has, by his or her silence or conduct, substantially admitted the truth of the whole or some part of the allegation made.[53]
[53] R v Spencer [2019] SASCFC 70; R v Smith (1897) 18 Cox CC 470; R v Grills (1910) 11 CLR 400; R v Salahattin [1983] 1 VR 521; R v Kamleh [2003] SASC 269.
As the Court of Criminal Appeal explained in R v Spencer:[54]
It is not that what is said to an accused can of itself be evidence against an accused, but his response may be if his silence or conduct may amount to an admission of the truth of what was said.[55]
If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding his denial, could infer that he acknowledged its truth in whole or in part, it would accord with the accepted practice to exclude the statement altogether.[56]
Whether an inference can be drawn depends on the coalition of a number of facts.[57] They include questions such as whether the accused heard or received the subject statement, whether he or she understood it and whether the facts contained in the subject statement were within the personal knowledge of the accused.
The next step is whether the circumstances were such that a dissent would, in ordinary experience, have been expected by the accused. The issue concerns an assessment of human behaviour which is best made by the jury.[58]
[54] R v Spencer [2019] SASCFC 70 at [36]-[39].
[55] Woon v The Queen (1964) 109 CLR 529 at 541 (Windeyer J - his Honour dissented in the result but not on the point of principle).
[56] R v Christie [1914] AC 545.
[57] R v Salahattin [1983] 1 VR 521.
[58] R v Alexander [1994] 2 VR 249 at 263. Barca v The Queen (1975) 133 CLR 82 at 107.
In such a case where the response is silence, the court needs to carefully consider the content of the assertion or allegation when determining the question of what if any of the assertion has been admitted by silence.[59]
[59] R v Spencer [2019] SASCFC 70 at [47].
Where admitted, the court must carefully consider the use to which such evidence may and may not be put.[60] For example, whether it allegedly constitutes an admission of a charged act or of something less specific yet probative for example ‘serious wrongdoing’ or an ‘inappropriate relationship’.[61]
[60] R v Spencer [2019] SASCFC 70 at [51]-[55].
[61] R v Spencer [2019] SASCFC 70 at [51]-[55] and [60].
It is clear from the initial statement by the complainant in the recorded conversation that the complainant is saying to the accused that ‘the whole ordeal should have stopped a lot quicker. And you as a parent, you as my dad should have stopped it and it shouldn’t have started. But you know how it went on for years’. Accordingly, they are talking about a years-long ordeal that the complainant has been put through which should never have started and which the accused as the complainant’s parent should have stopped. Ms S’s mother makes it clear that they are talking about the accused putting his ‘filthy hands’ on his son, which she repeats in unmistakable terms, and she puts that the accused should admit to what he did to the complainant. It is very plain that she is suggesting the accused has and should have the decency to admit to inappropriately sexually assaulting his son in some way. In the course of the conversation, a conversation for which the complainant is obviously present, Ms S’s mother leaves long pauses for the accused to respond, but he stays entirely silent in the face of unequivocal suggestions, in the presence of the complainant, that he has sexually assaulted the complainant over many years, and that he should own up and apologise for his actions.
In terms of the test articulated in R v Spencer,[62] the court finds that:
·The accused plainly heard the statements in question. The statements were being made directly and unequivocally to him. He indicated from the start that he could hear what was being said.
·The statement was in repeated and unequivocal terms, such that the only available inference is that he understood what was being said to him. It is also clear in the full context that the facts were within his personal knowledge.
·On an assessment of human behaviour, dissent from a false proposition from a family member in the presence of the alleged victim that the accused had been sexually assaulting his own son for years would, in ordinary experience, have been utterly expected in such a circumstance. Indeed, it is very difficult to imagine that a person falsely accused in such a circumstance by close family members would stay silent.
[62] [2019] SASCFC 70.
Accordingly, the court finds that the accused’s silence, in the proven circumstances of the 18 July 2021 conversation, does constitute an admission by silence to the proposition that he had been sexually assaulting the complainant in some way for years.
Conclusions
The complainant’s evidence at the end of the day was credible, compelling, and reliable, such that the events he deposed to are proven beyond reasonable doubt to have occurred. In the court’s view that evidence is sufficient on its own to establish the charged offence, absent evidence of complaint or admissions.
For completeness, the evidence of complaint exhibited a degree of consistency which did not detract from the credibility or probative value of the complainant.
For completeness, the conversation of 8 June 2021 in particular the accused’s apologies therein constituted an admission of the allegation of repeated sexual abuse of the complainant that was being put to him.
For completeness, the accused’s silence, in the proven circumstances of the 18 July 2021 conversation, does constitute an admission by silence to the proposition that he had been sexually assaulting the complainant in some way for years.
The court finds proven beyond reasonable doubt that the events deposed to by the complainant occurred. In particular:
·That at all relevant times the accused and the complainant were in a parental relationship.
·That at all relevant times the accused was an adult and the complainant a child.
·That on regular, and at least two, occasions at the Munno Para West address in the kitchen/lounge the accused indecently assaulted the complainant by masturbating him and performed an act of gross indecency by causing or permitting the complainant to masturbate the accused.
·Further, that on one occasion at the Munno Para West address, before school, in the kitchen area of the house, the accused indecently assaulted the complainant by masturbating him, then had unlawful sexual intercourse with the complainant by performing fellatio on him.
·Further, not long after that event there was an occasion still at the Munno Para West house where the accused indecently assaulted the complainant by masturbating him, then had unlawful sexual intercourse with the complainant by inserting his penis into the mouth of the complainant.
·Further, when the family had moved to the Blakeview address there was an occasion in the bathroom where the accused indecently assaulted the complainant by masturbating him and performed an act of gross indecency by causing or permitting the complainant to masturbate the accused.
It was no part of the defence case that if the events occurred as alleged by the prosecution, that such events would not constitute the named offences and consequently unlawful acts within the meaning of the Act. For completeness however, the court records that in each case the court has carefully considered the elements of the offence mentioned and is satisfied that each element of each mentioned offence is proven beyond reasonable doubt.
Accordingly, the court is satisfied beyond reasonable doubt that between the 30th day of June 2013 and the 9th day of July 2016 at Munno Para West and other places, the accused, being in a position of authority in relation to the complainant his biological son, maintained an unlawful sexual relationship with him, a person under the age of 18 years, by engaging in two or more unlawful sexual acts with or towards him.[63]
[63] The particulars alleged against the accused are:
(a)squeezing the complainant on the bottom on more than one occasion;
(b)rubbing his penis against the complainant on more than one occasion;
(c)allowing the complainant to rub his penis against him on more than one occasion;
(d)touching the complainant’s penis on more than one occasion;
(e)allowing the complainant to touch his penis on more than one occasion;
(f)performing an act of fellatio on the complainant; and
(g)allowing the complainant to perform an act of fellatio on him.
(h)
Verdict
The court finds the accused guilty of the offence of Sexual Abuse of a Child contrary to s 50(1) of the Criminal Law Consolidation Act, 1935.
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