R v Faulkner No. DCCRM-01-390

R v FAULKNER
[2002] SADC 13
Judge Bishop

Criminal

James Michael Faulkner (“the accused”) is charged upon an information which alleges that he committed four offences against a 12 years old boy (J), at Glanville and Port Adelaide, between 1 November 2000 and 26 January 2001, namely,
Count 1- indecent assault - in that, between 1 November 2000 and 25 January 2001, at Glanville, he indecently assaulted J, a person of the age of 12 years, by touching his penis while claiming to be touching his pressure points: contrary to section 56 of the Criminal Law Consolidation Act, 1935.
Count 2- indecent assault – in that, between 1 November and 30 November 2000, at Port Adelaide, he indecently assaulted J, a person of the age of 12 years: (Ibid).
Count 3- serious criminal trespass in a place of residence – in that, between 25 and 26 January 2001, at Glanville, he entered or remained in a place of residence of R [who is the mother of J] as a trespasser, with the intention of committing an offence, namely abduction of a child under 16 years, when J was lawfully there present and the accused knew of J’s lawful presence: contrary to sections 170(1) and 170(2) of the Criminal Law Consolidation Act, 1935.
Count 4- attempting to abduct a child under 16 years – in that, on or about 25 January 2001, at Glanville, he unlawfully attempted to take away J, a child of the age of 12 years, by force with intent to deprive his parent, R, of possession of him: contrary to sections 80(1)(a) and 270A of the Criminal Law Consolidation Act, 1935.
Upon arraignment before me on 21 January 2002, the accused elected to be tried by judge alone. Consistent with a ruling previously given by Judge Lowrie that application was granted, whereupon the accused pleaded not guilty to counts 1, 3 and 4 and guilty to count 2. During submissions relating to a possible suppression from publication of the accused’s name, I became aware that the accused has recently pleaded guilty before Judge Hume to sexual offences against other children. That awareness I shall certainly put out of my mind in considering this case. I shall direct myself completely to ignore or disregard that knowledge which would necessarily have disqualified a juror from sitting on this trial, were the case being tried with a jury.
At trial, the prosecution called five witnesses – J, his mother (R), his mother’s partner (Mr “Jack” Salvemini), a friend of Mr Salvemini (Mr Mallon) and a police crime scene examiner (Senior Constable Goodwin). Statements of other persons and documentary material (plans, photographs and a video record of interview with the accused, together with a transcription of that interview) were tendered by consent. The accused also gave evidence. A view of Unit 3 was conducted. I shall refer (with my emphasis) to the evidence here presented.
The evidence of J
J (who was born on 8 March 1988 and is now 13 years old) gave evidence upon affirmation by closed circuit television. (No adverse inference can or shall be drawn against him in thereby giving evidence, even though his adoption of the course would “surprise” (T325) his mother: R v Climas [1999] 74 SASR 411.) He resides with his father. At the times of these alleged offences (and the admitted offence), he was staying with his mother and her partner (who shall be referred to as “Jack”) in their unit (unit 3) at Glanville. The accused then resided in the adjoining unit (unit 2). J met the accused not long after his mother moved into unit 3 about October 2000. Jack is a fisherman and was often away from home. Occasionally, the accused went to unit 3 and J and his mother went to unit 2.
In giving evidence of the first alleged offence (count 1), J said (T57):
“One night when Mum was trying to make me smoke some of these smokes so I wouldn’t smoke when I was older, Jamie [the accused] touched my pressure points and he touched my penis.”
That offence occurred, he said, in the lounge room of unit 3, when his mother was there lying on a sofa. He had been seated on the adjoining chair watching TV and the accused had been seated on a nearby lounge. Because his mother had previously caught him smoking cigarettes, that night she encouraged J to smoke excessively, thereby hoping to dissuade him from continuing to smoke. He was wearing shorts and underpants. After smoking about 10 cigarettes, he began to feel “really ill” (T97-98). According to J, the accused moved from the lounge to the chair next to him. Then, he said, “[the accused] moved on to my chair, but he picked me up and put me on his lap, on the same chair that I was sitting on” (T59). The accused, he said, was “touching where my pulse is… Between my legs like, in the gap thing and like up on my neck and under my arms… he had his hand up the leg of my shorts, but on the top of my underpants” (T60). That touching continued for about five minutes. The accused also “touched my penis with this thumb… He just sort of rubbed his thumb along my penis… Once or twice” (T60). J thought that he was seated on the accused’s lap for about 15, 20 minutes and that his penis was touched for about 10 minutes (T61). Then he accompanied the accused to his unit (T61):
“Because [the accused] said Mum’s tired and he needed to do some work on the computer, so he sat me on the chair next to him, [and] opened up some pornography photos on the computer.”
He remained in the accused’s unit for about “three, four, five hours” (T63), during which time he drank alcoholic liquor and the accused pulled out the elastic of his “pants” and looked down his “pants” (T64).
In describing the on-going relationship between them, J said that there were other occasions when he went to the accused’s unit. On one such occasion (after the fishing trip yet to be related (T72)), “[the accused] showed me pornography on his computer, and he pulled his penis out and showed it, the computer, his penis” by waving it around (T65). On about three other occasions (once before the fishing trip yet to be related and twice afterwards (T72)), “[the accused] like, tickled me and touched my penis and, like, just showed me pornography on his computer and touched my penis” with his fingers, sometimes on top of and sometimes underneath J’s clothes (T66).
J related the second alleged (and admitted) offence (count 2), which took place on an occasion when he went fishing with the accused (at T66-67):
“I was sitting in Mum’s lounge room watching TV while she went out to the shop to get something, and I heard a knocking on my window, so I walked out…. and [the accused] was standing at my [bedroom] window… He just asked me whether I wanted to go fishing with him.”
They had previously discussed fishing. J’s mother permitted him to go fishing with the accused on the following day. According to J, they went fishing for bait in the afternoon from the Semaphore jetty. Then, about 3 am in the following morning, the accused drove them in his car to fish under the Jervois Bridge (T68). Because it was cold, they spent some time in the car. The accused picked him up, put him on his lap and rocked him from side to side, hugging him with his arms. “I think he had an erection. I felt it on my leg… on the back of my leg” (T70). J stayed there for a minute, then got off his lap and checked the fishing rods, because he did not want to stay in the car with the accused (T70). On that fishing trip, while J was urinating at a nearby pole, the accused looked at J’s penis and remarked, “We can use that for bait” (T70). J also saw the accused’s penis, which he thought was erect. “He was standing in front of me, just like standing there, with his penis out of his shorts” (T71).
After that fishing trip, when J came to stay with his mother he continued to go to the accused’s unit, usually at the accused’s suggestion, “Because I wanted to talk to him about fishing, and me and him usually played the computer” (T71). Of what had occurred on occasions when he had been with the accused, J said that he told his mother (T72-73):
“I said, ‘I’m not sure about [the accused] because he showed me his penis and that and I think he is a bit weird’, but I wasn’t sure, that’s why I kept on going over there. I thought he was just a nice man…. She said he was in the army or something, and that’s how they play around with each other, like they are rough like that, they play around like that.”
In relation to the third and fourth alleged offences (counts 3 and 4), J gave evidence that, about 9 pm on 25 January 2001, Jack and he had been driven by the accused to Semaphore for the purpose of purchasing a pizza for dinner. At the accused’s request, while they were waiting for the pizza, J punched the accused in the stomach about seven times (T74). While his mother, Jack and he were eating the pizza, the accused left their unit. J had spoken to him about coming back (T75):
“I asked him whether he wanted to come back, like, whether I wanted to go to his house or he wanted to come back. He said, ‘If I’m not over in half an hour, come and get me’…. I said, ‘I’ll see what mum says’…. I asked mum whether I could go over there. Mum said, ‘Don’t worry about it. It’s too late now’.”
After the accused left unit 3, J asked his mother whether he could go to the accused’s unit. “She said ‘No’, so I think we settled down and we went to bed” (T76). He went to his bedroom, read a book for about five minutes and then went to bed with the light on because he is afraid of the dark (T76). When he went to his bedroom, the window was open “about three centimetres wide” (T78). (In cross-examination, he said that he shut the window before going to bed (T136).)
J did not remain in his bedroom that night. He said (T76):
“I was asleep for about quarter of an hour, then I heard a tapping noise on my window. I got scared, so I got up and I went to mum’s room [to the lounge room], but I was too hot anyway, so I was going to go in there and go to the air cooler.”
His mother and Jack were sleeping on the sofa in the lounge room. Before leaving his bedroom, he locked the window [a sliding window with a catch fastening] and “put the piece of wood in the runner” (T77) to prevent the window from being opened from outside. The fly screen was then positioned in the window frame (T84). With cushions from the lounge, a bed was made for him on the floor in front of that lounge and near a coffee table, at the other end of which his mother and Jack were sleeping on the sofa.
Later, when J was lying on that makeshift bed, he saw the accused enter unit 3 through the open front door and unlocked screen door (T80). “I saw him when he came in the front door and asked whether I wanted to come over and play the computer with him” (T79). J’s mother was then in the toilet. The accused said, “Can [J] come over and play the computer with me”, to which Jack told him to go home because it was too late and he did not think that J wanted to play the computer (T80). During that conversation, J lay still and did not say anything. After the accused left, J thought that Jack “got up and got a drink and then mum came out the toilet and then we all went back to bed” (T80). He thought that he went straight to sleep (T80).
Later that night, J said that he again saw the accused in unit 3, when he was awoken (T82). “I looked up at his face when he was carrying me through the door frame of my hallway…. I opened my eyes and I was around where mum’s bedroom is” (T81). (The doorway to J’s bedroom, which is situated at the end of a short passage from the lounge room, is near the doorway of his mother’s bedroom.) J said that he had mistakenly said, in his police statement, that he was then in his bedroom, not the hallway (T81). As he was being carried “like a cradle” by the accused (with the accused’s arms held in front of his body), they spoke to each other (T82):
“I said to him first, ‘Mum said I’m not allowed to go out because it’s too late’ and [the accused] said – I think that’s what he said – he said, ‘Mum said you could come over’, or ‘No, she didn’t’, or something like that.”
J’s evidence continued (T82):
“Then he put his foot up on the window thing, then I yelled out to mum. He dropped me on the floor and mum came out into the lounge room into my bedroom.”
The accused, he said, then jumped through the bedroom window, which was fully open (T83) with the fly screen removed (T84). (The distance, internally, from the bedroom floor to the bottom of the window ledge was measure by police officer Goodwin as being 965 mm; that is, 3’2”. The window ledge was observed at the view to be about 22 mm or 1” thick.) His mattress (there was no bed) was then leaning up against the wall, on the right hand side of the window (T84).
In J’s recollection, the accused put his right foot up on the window ledge. “I think it was his right foot, and I think he put his other arm – his other hand like that on this part of the window here”(T85). (With his left hand, he indicated the edge of the sliding part of the window frame (T85).) After he screamed for his mother, “My mum come running through and found me on the floor down there and I said, ‘Jamie [the accused] tried to take me through the window’, and I knew it was [the accused] because I saw his face in the light of the toilet” (T86). In dropping him, the accused first released J’s legs and then the top part of his body (T86-87). Jack then also came into the bedroom. Later, he said (T89):
“mum took me outside. She said, ‘Before I ring the police, you’ve got to tell Jack that he’- Jamie – ‘did do it’. I didn’t want to, because I was scared Jamie might do something to me, so I didn’t say it. Mum kept on telling me to say it, so I punched the fence and walked back inside…. [feeling] Angry and sad.”
In J’s evidence, he had never left the unit through his bedroom window (nor did he do so that night) and he did not have any arrangement with the accused to meet him later that night (T90).
In cross-examination, J said that he thought he had spoken with his mother about the accused having touched his pressure points, after returning from the accused’s unit that night (T91). She thought that the accused was “just mucking around” and that he was “a nice man” (T93). She was awake and very close to where the touching had occurred (T91). She had looked over to see what was happening (T95). When he went to the accused’s unit that night, he did not think that he was wearing underpants. He thought that he had taken them off, but could not recall for what reason. He though that he had a shower (T91). He agreed that, in his statement to the police earlier last year, he had said that he was not wearing underpants that night and that he had spoken to his mother immediately after the accused had touched his pressure points (T92, 93, 98). In both those respects, J said that he must have been mistaken (T99) and confused (T93, 96). Nor could he remember having said, in that statement, that he had forgotten to put on underpants that morning (T99). The accused, he said (T94):

“told me mum that he was going to touch my pressure points before he touched them, and then, when he did, I didn’t tell mum that he touched my penis.”
He remembered telling the police (but did not think that it was correct ) that he had told his mother “He felt my penis”, and that she had replied “He is probably just mucking around and trying to feel your pressure points” (T95).
Asked, in cross-examination, whether “sometimes” his mother told him that he was not to go to the accused’s unit, J replied (T101):
“No, every time I went over there, I always asked her and she always said either ‘Yes’ or ‘No’ and if she said ‘No’, I wouldn’t go over there, and if she said ‘Yes’, I’d go.”
When asked (T103):
“I know some bad things happened to you, but overall, you liked going to [the accused’s] house, didn’t you”,
he replied (T103):
“I didn’t think nothing of it until, like, started getting worse, and I thought, ‘Maybe I should stay away from that place because it’s starting to get a bit scary’.”
By “scary”, he explained (in re-examination) that the accused, “ started getting worser and worser… In a touching way…. he started acting a bit weird”; the accused would touch him more (T159-160). He did not think that the accused ever tried to make him touch the accused’s penis (T104).
J denied (in cross-examination) that he had ever opened his bedroom window at night and visited the accused (T104-105). He also denied that, upon returning from such (postulated) visits, the accused would sometimes replace the fly screen from outside the window (T105). Specifically did he deny that any of those things had occurred during the night of 25 January 2001. “I never went out of my flat, never went out of mum’s flat after the pizza thing and he did try and take me through the window” (T106). He also specifically denied that, in the accused’s unit that night, the accused had tried to put his hand on the accused’s penis; that he had become very upset and frightened; that he had run back to his open window and jumped in; and that the accused had also climbed through that window and said, “I’m sorry, mate” (T106-107). He agreed that he might mistakenly have told the police that he was “standing” “frozen” in his bedroom, facing the window, when his mother came in, but said that he was “sitting” on the floor and stood up when his mother was in the room (T107, 108). When he screamed for her, the accused was “just about to get through the window” and leave (T109). He denied having opened the window from the inside and having been frightened of getting into trouble, saying “I was frightened of the dark. I wouldn’t ever climb out my window” (T112).
J accepted (in cross-examination) that, in a statement to the police, he had accurately said that, when he awoke, the accused was leaning over him and picking him up (T122, T148). The accused then began carrying him to the bedroom and dropped him on ‘the bed’, which the accused was ‘stepping over’ when he screamed (T122, 130). He accepted that his references, in that statement, to having been dropped on ‘the bed’ and the accused ‘stepping over’ the bed were erroneous, because the mattress was not then lying on the floor (T124, 125). Of their conversation when the accused picked him up, J agreed that the accused had “sort of whispered” “It’s Jamie” before he (J) said, “Mum said that I’m not allowed to go to your flat tonight” and the accused replied, “No, she didn’t.” (T127-128). J denied having occasionally sneaked away to the accused’s unit without his mother’s knowledge (T133-134). While agreeing that he had said, in a police statement, that the accused only once showed him pornography on his computer, J said that was erroneous and he had see it more than once (T135, 142).
In response to my questions, J confirmed that, with the wood in position in the window frame, his bedroom window could only open about three, four or five centimetres (T136). He denied ever having taken the fly screen from the window frame (T137). He also denied that, occasionally, he had gone out through the window; that the accused had been at the window and taken off the fly screen (T137); and that the accused would follow him back and replace the fly screen after J had returned through the window (T137). Specifically, he denied that any of those things had occurred on the night of 25 January 2001. He denied that, earlier that day, he had agreed with the accused later to go and play on his computer (T138). He thought that he had told his mother about having seen the pornography, about a month after he first met the accused (T160). When asked (T150):
“After you told your mum about the pornography and some of the things you said had happened, your mum went a bit cold on the idea of your going over to [the accused’s], didn’t she”,
he replied “I think she wasn’t too sure whether I was telling fibs or not” (T150). He confirmed that the accused had broken into the unit wearing his underpants and had picked him up “about a metre away” from his mother and Jack (T151). He acknowledged that he had told the police that the window was open “about 30 centimetres” because it was hot. When reminded that he had previously said, in evidence (T78), that, with the wood in position, the window would open about 3 cm, surprisingly J said that he had said 30 cm (T153).
The evidence of J’s mother (R)

When staying with his mother (R), J slept with her because he was frightened of the dark (T165). In January 2001, she introduced an incentive (“star”) system whereby he was encouraged to sleep in his own bedroom (T166). After meeting J and learning of his interest in fishing, the accused became friendly with R and J. He visited them in unit 3, occasionally bought cigarettes from R (because he said that he was giving up smoking) and invited J into unit 2 to play on his computer (T171).
R told of the occasion (count 1) when she was speaking with J one evening and trying to dissuade him from smoking. (He had begun smoking when he was 11 years old.) The accused came into the unit, bought five cigarettes from R, sat on a chair and joined in their conversation. R passed to J a packet of cigarettes and told him to smoke them (T173-174). After smoking about six or seven cigarettes, J “started to look a bit green around the gills” (T175), an appearance which was also remarked upon by the accused. The accused began checking J’s pulse in his neck and wrist, for which purpose he sat on the corner of J’s chair. According to R, the accused said that he could not feel J’s pulse properly (T176):
“Then he went to his groin, and I asked him why he was doing that, and he said ‘There is also a pulse point there’ and he was checking him over.”
(In cross-examination, she said that she also told the accused that she would rather he kept his pulse points to his neck and arms (T213).) She then continued (T176):
“He just checked the inside of his leg, that I saw, but then I went to the fridge [for a drink of water] and he was just going over him and asking him if he was all right. I didn’t see, you know, much after that. Then I came and sat down again, I was flicking over to the TV and watching the television, looking out the door.”
R was then upset, because J was a smoker at 12. The accused said to her, “You are looking a bit flustered there. Can [J] come over and play the computer?” (T176). R replied, “as long as he keeps smoking cigarettes, then yes, he can for a short while” (T177). J and the accused went to his unit. R went there a couple of times. She saw them in the accused’s bedroom, with J sitting on the bed, the accused sitting at his computer and music playing. Later she took J back to unit 3. (Contrary to what J thought he had said to his mother after he returned from the accused’s unit that night, about the accused having touched his “pressure points” (T91), R said (in cross-examination) that J had not discussed that incident with her (T238). She had not heard the expression “pressure points” until here giving evidence; to her, the expression is “pulse points” (T240).)
In R’s evidence, the “smoking” incident occurred after the “fishing” incident which, she thought, occurred about a week after J met the accused (T178). (Because the accused has pleaded guilty to the offence (count 2) alleged in respect of the “fishing” incident, there is no need fully to consider all of the details surrounding that incident.) When he returned home from fishing earlier than R had expected, J told her of the accused having looked at his penis as he urinated. R later spoke to the accused, who apologised and said, “I was trying to be funny. It was just a joke” (T184).
In examination-in-chief, R told of having asked J about what he played and saw on the accused’s computer. (That evidence was elicited because, in cross-examination of J, it had been established that J had told R about the pornography (T150), following which (it was suggested) R “went a bit cold” (T150) on J going to the accused’s unit. To that suggestion, J had replied, “I think she wasn’t too sure whether I was telling fibs or not” (T150).) R said that J told her of having played games and seen naked

ladies and men on the computer and the accused having commented that that was on the wrong disc (T185).
In relation to the offences alleged in counts 3 and 4, R recounted that the accused came to unit 3 when dinner was being discussed; that he drove Jack and J to purchase the pizza; that he returned with a full pack of alcoholic liquor; and that he stayed for a couple of hours and left about 9.30 to 10 pm (T188-189). She took J to his bedroom. (J was trying to earn incentive stars for sleeping in his bedroom (T191).) Because he was very very frightened of the dark, she switched on the lava lamp, put a piece of wood in the window frame, left the door open and switched on the toilet light (T189-190). His bed (a mattress) was against the wall on the right hand side of the window. The window was “slightly” open, “about eight inches”. (With her hands she indicated, in evidence, a distance between four and five inches (T191).) The window blind was pulled “right” down to about 5 inches (as indicated) so that air could enter during the hot night. The fly screen was attached to the window frame with two small pins on the “outside” of the screen (T192-193). She then went to bed with Jack on the sofa in the lounge room near the air conditioner.
(At the view, it was apparent that the flimsy fly screen could be placed in the window frame in any position; that is, back to front or upside down. There was only one pin on the screen and no recesses in the window frame for pins, only a slight bevel or lip on one side, behind which pins could barely be located. With the piece of wood in position in the window frame, the window could be opened 60 mm (about 2½ inches for those more familiar with the imperial system) (T446).)
About an hour later, J came into the lounge room, told R that he had heard noises at the window and asked if he could sleep in the lounge room (T195). R made a bed for him on the floor with cushions from the lounge. Then, she said (T197-198):
“I went into his room straight afterwards… went into his room, turn off the lava light… and I opened the window a bit more trying to let a bit more air come through… so I opened the window, took the stick out and opened it up.”
She also pulled up the blind, lifted the mattress and leant it against the wall (T200). The fly screen was “on” the window frame. She went to the toilet and returned to bed, leaving the toilet light on for J (T102-202).
About an hour or an hour and a half later, R went again to the toilet. While there, she heard Jack’s voice. When she again returned to bed, Jack was locking the front screen door, which she thought had previously been locked (T195). (In cross-examination, she said that after Jack had locked the screen door, he told her of the accused having returned and requested that J play the computer, to which she replied, “At this time of the night” (T231). “We just said, ‘Can you believe that?’ and went back to bed” (T232).) In her evidence, Jack definitely did not then go to any other part of the unit (T232). She thought that J was asleep. She again went to sleep.
About 35 or 40 minutes later (in cross-examination she said that it was between about 1½ to 2½ hours later (T308)), R awoke upon hearing J’s voice screaming, “Mum, Mum” (T204):
“I flew out of bed and said ‘[J], where are you?’ and he said, ‘I’m in my room’… and I went in there and switched the main light on and saw him on the floor, getting up off the cement [with lino attached] and I said ‘What are you doing there?’ and he just said, ‘Jamie has just tried to take me through the window’.”
That conversation R later continued to relate (at T207):
“I said ‘What?’, and he said, ‘I woke up and I was in his arms’. I asked him what he was doing. He said, ‘We are going to play the computer’. I knew that wasn’t right, so I screamed out too, and he dropped me and ran, got out the window again’.”
When she went to J’s bedroom, the window was wide open, with the flyscreen outside and leaning against the wall. J appeared very shaken; he was quivering and his eyes were “as wide as saucers” (T204). She called Jack, who also went to J’s bedroom and spoke with J.
Soon afterwards, Mr Mallon, a friend of Jack, arrived. R heard Jack speaking with the accused, who denied what was put to him. The accused said that he had been asleep and asked that the police not be called (T208). At R’s request, J went outside and told Jack, in the presence of the accused, “Jamie just tried to take me through the window”. J became hysterical and punched the adjoining fence (T209). R took him inside and telephoned the police. J became “very shaky” and vomited into a bucket (T210).
In cross-examination, R acknowledged that she had provided four statements in this matter: first, a statement of 22 pages, dated 3 March 2001; secondly, a statement of three pages, dated 29 December 2001 (relating to J’s bedroom window); thirdly, a statement of two pages, dated 11 January 2002 (relating to the mattress); and fourthly, a statement of four pages, dated 22 January 2002 (when she was waiting to be called as a witness, relating to the “smoking incident” in count 1). (Those four statements were subsequently tendered (exhibit P4), for the purpose of assessing her evidence (T264).) Concerning the offence alleged to have occurred during the “smoking incident” (count 1), in her first statement R had said that the accused left the unit about five minutes after she had sold him five cigarettes. In her fourth statement (which, she said, could have related to an occasion other than that referred to in her first statement (T257, 258, 260 and 266)), R told of the accused being present when J smoked about six or seven cigarettes, but there said nothing of the accused having touched J or his pulse points (about which she here gave evidence). That omission, she here explained, was because “like many other things, I suppose I blocked it out… traumatic things that happened a year ago” (T216). “I think I blocked a lot of things out up until the up and coming trial” (T220). “[I]t wasn’t until the afternoon that I was sitting thinking at the court afterwards that it all came back to me” (T221). “I only just remembered the smoking incident yesterday. It was just something that popped up and I just remembered it, but, as I said, I’ve blacked things out. This isn’t an easy case. He’s my son” (T223). “It all came to me in a flash” (T332). She was not given her first statement to read until the day when she made her fourth statement (T224).
R said that there was a time when she and Jack “just got very uncomfortable” with J going to the accused’s unit. They decided that he should not go there (T241):
“[J] came up to me once with a cigarette and I said, ‘Where did you get that from?’ and he said, ‘Jamie just gave it to me – out the door to me. And I praised him for being honest. And I just said, ‘Don’t go near the flat’, but, unfortunately, it being the middle flat, and me being the last flat, it gave [J] a very – he had to pass it to go to the cement, out to the road and out to the shops, but he was strictly told not to go there.”
She did not think that J would have “sneaked” into the accused’s unit (T244-242).
In her first statement, R described the piece of wood used in conjunction with J’s bedroom window, which “only allows” the window to be opened about 8 inches, but did not there tell of having removed the wood and further opened the window during the night of 25 January 2001. In that first statement, she also said (contrary to her evidence at [T232]) that Jack checked around the house before getting back into bed after locking the screen door. In cross-examination, she said that Jack did not check in J’s bedroom; “he never goes in there” (T273), not while J is staying (T276).
In her second statement, R told of having removed the wood and further opened J’s bedroom window (to “about 8 inches”) after J had come to sleep in the lounge room. She also there corrected what she had said in her first statement about the wood only allowing the window to be opened about 8 inches, to a distance of about 7 cms, that being the distance that the window would have been opened before she removed the wood. Her explanations, in evidence, for not having included that information in her first statement were her difficulties in adjusting to the metric system – centimetres not inches (T227)- and the fact that, on a hot night, “It’s all just a very routine thing that I do. I didn’t think it important, or even remember it” (T277). “I remember removing the [wood]. The fact that it was probably routine is probably the reason it’s not in my statement” (T312). In evidence, she eventually succeeded in explaining that, after removing the wood and opening [further] the window, the window opening was “more like 12 inches” (T287). She made her second statement after Detective Dawkins had telephoned, drawn her attention to “a discrepancy with the window” and asked her to measure it (T297).
Photograph 4 (in exhibit P3) depicts J’s mattress lying flat on the bedroom floor in front of the open window. R’s third statement merely explained that the mattress was in a different position when she had previously left it leaning against the wall. In R’s evidence, the mattress was not lying on J’s bedroom floor when he got up from the floor (T317). She saw him sitting on the ground (T318-319):
“his bottom was just coming off the cement [floor] and getting up… He was a bit sideways… but he was on the floor… Like if you are lying sideways on the beach… His back was towards the window… He was on his side, pushing himself up with one hand.”

J was then about 4 feet tall (T322); “he was a very small boy” (T323). R thought that she saw Mr Mallon there ‘maybe a couple of hours after midnight’ (T330). (In that regard, her recollection is clearly erroneous. According to statements which were tendered, police officers arrived about 12.45am. Mr Mallon said that he arrived “near enough to midnight” (T417).)
R confirmed that J had told her that the accused had shown J his penis. On occasions when the accused “won a game of some kind, he would pull out his penis and wave it at the computer”( T336). She and Jack then stopped J from seeing the accused (T336, 345):
“I told [J] it wasn’t on and we stopped the visitation… we stopped [J] from seeing [the accused].”
That occurred, she thought, “approximately two to three weeks before Australia Day 2001. He wasn’t allowed to go anywhere near [the accused’s] flat after that” (T346). She denied ever having said to J that the accused was in the army and ‘that is how they played with each other’ (a remark attributed to her by J when telling her of having seen the accused’s penis) (T336). She confirmed that J had told Jack, in the presence of the accused, about the accused having attempted to abduct him (contrary to what J said at (T89) (T337).
The evidence of Mr Salvemini (“Jack”)
Jack confirmed that J had gone fishing with the accused early one morning when he, himself, was going fishing with his father (T355). After that occasion, J spoke with Jack (T358-359):
“He told me – when he went to go to the toilet, he [the accused] kept trying to follow him to look at him. He [the accused] kept on asking him how big his penis was, words to that sort of effect…. I just said to [J] not to go fishing with him ever again, have as little to do with him as possible.”
Jack explained that he did not want to replace J’s father, rather to be a friend. To keep the peace, he did not then speak with the accused about the incident (T359). (In cross-examination, Jack said that after he had spoken to J about not going to the accused’s unit, R told him that J was sneaking there (T381).)
Jack recounted what occurred on Thursday, 25 January 2001, when the accused came to unit 3 and the pizza was obtained. Again, he was endeavouring to keep the peace (T362), although he then “hated” the accused, “Because of the way he used to come in when I was away fishing and you wouldn’t see him when I came home” (T362). Jack confirmed the prohibition upon J going into the accused’s unit from ‘just before Christmas’ (T363):
“[W]hen he [J] said he went in – he went in there to play on the computer games, and every time [the accused] won on the computer, he would flop his penis out. I said ‘Well, you’re not going in there ever again, [J]. I don’t want you ever going in there again’. I explained to him he was putting himself in the position where either take his word against [the accused’s] word. It makes it very difficult.”
(That evidence was elicited, without objection, “to explain why” Jack had imposed the prohibition upon J going into the accused’s unit (see T358).) He also confirmed that the accused had asked J to punch him (the accused) while they were waiting for the pizza and that he (Jack) had told J to stop it (T364).
Jack recounted that, after the accused left their unit about 10 pm, R, J and he went to sleep – he and R slept in the lounge room and J in his bedroom; and that J later moved to the lounge room, saying that he was scared of noises outside his bedroom (T366). Later, Jack was woken again when he heard the front screen door opening and closing. He saw a figure standing inside the doorway, where J was lying on the cushions. His evidence continued (T368):
“I said, ‘Who is that?’ He yelled back to me, ‘It’s just Jamie from next door. I was wondering whether [J] was up, if he wants to come and play the computer’. I told him, ‘It’s midnight, he doesn’t want to play on the computer. Go home’.”
(Although Jack said that it was midnight, he did not check; it could have been 11 or 12 pm (T369).) R was then in the toilet. The accused left the unit. Jack thought that J was asleep. Jack then locked the screen door and “just went around and checked the rest of the house” for security, including J’s bedroom (T369). The window, he said, was open “about six inches”, indicating (in evidence) a distance of about eight inches (T369). In his statement he had also said ‘about six inches’ (T384). He did not take any notice (T370) or look (T383) whether the piece of wood was in position in the window frame. The blind was down, the fly screen was in position (that was mainly what he checked for (T382), by lifting the blind (T380)) and the mattress was up against the wall (T370). He then went back to bed and spoke to R about the accused having entered the unit.
Jack later awoke when he heard J screaming for his mother. He followed R into J’s bedroom, by between 10 and 15 seconds (T392). J was standing by the window and being held by R (T393). He asked J what had happened (T372). J said, ‘Jamie tried to carry me out the window’ (T372). His voice was trembling. The window was wide open, the blind was up, the fly screen was off and the mattress was still leaning against the wall (T372-3). Jack went to the accused’s unit and knocked loudly on the front door. Lights were on in unit 2, but the accused did not answer the door. He walked to the rear of the units and saw the flyscreen leaning against the wall. When he walked back, his friend, Mr Mallon, had arrived. The two men went to the accused’s front door. The accused was standing there with a stick in his hand. In Jack’s evidence (T375):
“I told [Mr Mallon], ‘This bloke tried to carry J out the window’. He [the accused] said, ‘I don’t know what you are talking about. I heard all screaming.’ I said, ‘Bullshit. [J] told me it was you and it was you’, because I had already taken [the accused’s] word over [J’s] and I was angry about not giving [J] the benefit of the doubt for things that [J] had said he had said… [The accused] said, ‘I only just woke up and I heard all screaming’, where I had already been knocking on his door about 10 minutes earlier.”
The stick was taken from the accused, who then accompanied the two men to outside the bedroom window. The accused there said, ‘It wasn’t me. I didn’t do it’ (T377). J came out and said, ‘It was Jamie that tried to carry me through the window’. He (J) cried and punched the fence in anger. The accused was restrained until the police arrived.
The evidence of Mr Mallon
Mr Mallon went to the units about midnight. He had arranged to call about 10 pm but was delayed by visitors. He saw the open window with the nearby fly screen. He spoke to J. He and Jack went to the accused’s unit. They spoke with him. The accused denied their allegation. J came out and said to the accused, ‘Yes, you broke into my back window and tried to carry me out of my bed’ (T422). J was upset and shaking. The accused was “virtually calling him a liar, so he punched the fence” (T422). The accused was restrained until arrival of the police.

Mr Mallon accepted (in cross-examination) that his police statement did not contain any reference to J having said that the accused had broken into his window, nor to J having come outside and punched the fence. He did consider it very important what was said when J came outside, because the accused was denying the allegation and, “because he seemed to be a fairly decent sort of bloke”, there was the need to call J out and have him say it again (T433). He did not know why that was omitted from his statement, which he had read.
The evidence of S/C Goodwin
Mr Goodwin arrived at the units about 2.45 am on 26 January 2001. He took the photographs, exhibit P3. Upon examining the fly screen, which he saw outside and leaning against the window, he found and photographed a fingerprint on the frame of the screen. When recalled as a witness after the view, he gave evidence that, with the piece of wood in position, the bedroom window could only be opened 60 mm (T446); and that the fly screen could be fitted ‘back to front’ in the window frame (T448). Even when pushing the window up (in the frame) and then across, the piece of wood still prevented the window from being opened further than 60 mm (T463). The window could be removed completely by pushing it up and swinging it out of the frame (T463-464).
Other prosecution evidence
Statements tendered for the prosecution, by consent, established that:
·
the accused told police officer Cooper, who attended about 12.45 am, that he had been sleeping in his bed and heard noises outside (exhibit P5);

·a large number of computer discs were found by police officers on the accused’s computer desk and in his bedroom (exhibit P7);
·upon examination, a number of those computer discs were found to contain child pornography (exhibit P8);
·examination of data contained on an image of the hard drive of the accused’s computer contained child pornography (exhibit P11);
·examination and comparison of the fingerprint found on the bedroom fly screen frame indicated that the fingerprint was “consistent” with the left little fingerprint of the accused; there was insufficient ridge detail to establish a positive identification (exhibit P12);
·the accused was arrested by Detective Dawkins in unit 2 soon after 1 am on 26 January 2001 in relation to the offences alleged in counts 3 and 4 (exhibit P8);
·
commencing about 1.46 am, Detective Dawkins conducted a video record of interview with the accused in the Police Investigations Section at Port Adelaide (the video is exhibit P9 and a transcription of that interview is contained in exhibit P8).

The record of interview with the accused
The accused was prepared to answer ‘what he could’ of Detective Dawkin’s questions. He denied having entered unit 3 just before midnight on 25 January 2001 and spoken with Jack. He said that he had been there “earlier in the evening” and,
“I had indicated that if [R’s] son, [J], wanted to come over and play on my computer he could, simply became [R]….. and her ex-husband had had a lot of trouble with him in the past.”
That visit was a “social call”, “very much earlier in the evening, 8, 9 o’clock whatever.” He denied having entered unit 3 after that time. He had difficulty recalling what he was doing just before midnight (that is, about two hours before being questioned) because he had been drinking from much earlier in the evening – about 7 pm – “three quarters of a bottle of scotch”, “very weak Scotch and Coke.” He said that he was then “slightly tipsy”, “not pissed” but “tired and aggravated”.
The accused denied having entered J’s bedroom through the bedroom window and picked him up from his bed about 12.30 am, saying, “Outright and utter bullshit. No way. Unequivocally no, for the record.” He said that, when the police arrived, he “had already been awakened by Jack and a friend of his”; that he had heard some noises towards the rear of his unit, which had been broken into previously; that he had gone out with a short piece of wood; and that he had been confronted by Jack and his friend and accused of ‘breaking in and molesting’ J.
Regarding his relationship with J, the accused said that J had been to his unit a few times with his mother, but not on a regular basis; and that he had said to R, because she was having much trouble in coping with J, that if J wanted to come in, he could play computer games. He denied that there was any child pornography on the hard drive of his computer (which he was told had been seized and would be examined). He said that he had been living there for three years, R and Jack for three months and that he had known J for about six weeks. He was taking medication for depression.
Detective Dawkins repeated the two allegations which he had previously made to the accused, namely, that the accused had entered unit 3 just before midnight, spoken with Jack and asked if he could see J to play some computer games; and that the accused had broken and entered through J’s window and attempted to carry him out about 12.30 am. The accused replied:
“For the record, this is a complete and utter case of bullshit. The allegations made against me are false. I have not or have ever [sic] attempted anything like this before whether drunk or sober.”
He said that he had slept before midnight and was awoken by noises near the rear of his unit.
The evidence of the accused
In his defence, the accused gave sworn evidence. He is 31 years old. He related how his friendship with R and J developed from having coffee with R, purchasing cigarettes from her when he was trying to stop smoking, speaking with J and twice taking him fishing. “Maybe once or twice” he has spoken to J through his (J’s) bedroom window (T470) (which was 4.3 metres from the accused’s back door (T42)). From shortly after meeting J, the accused said that his friendship with J “deepened” and he became aware of sexual feelings towards J (T472). In his unit, the accused had a computer which was connected to the Internet. On to that computer, the accused had “downloaded” pornographic images (T472). Occasionally J and he played games on the computer and, occasionally, together they looked at the pornography. He facilitated the smoking of cigarettes and the drinking of alcohol by J in his unit (T482-483).
With R’s permission, there was an occasion when the accused took J fishing underneath the Jervois Bridge. While he (the accused) was urinating, J came over, looked at his penis and laughed (T471). His penis was not erect (T471). When J urinated, the accused looked at his penis and remarked, ‘You won’t catch much with that’ (T471). While in the accused’s car, J sat on his lap, when the accused’s penis did become erect to the awareness of J (T472). (That incident constitutes the indecent assault offence (count 2) to which the accused has here pleaded guilty.)
The accused recalled being present in unit 3 early one evening with R and J on an occasion when there was a discussion about cigarettes (T481). He had gone there for coffee, a chat with R and to purchase five cigarettes from her. He was sitting on a chair. He there observed J smoking between six and ten cigarettes (T482). He denied having had J sitting on his lap. He denied having used the words ‘pulse points’ or ‘pressure points’. He denied having placed his fingers on J’s neck, wrist or near his groin (T482).
The accused said that, occasionally (T483),
“J indicated that he wished to come over to my place late at night and he asked me to remove the screen so he could exit the premises and come over.”
To facilitate those proposals, unbeknown to R the accused removed the fly screen from J’s bedroom window so that J could leave his bedroom by climbing through the window. (In cross-examination, the accused recalled that happening “a few times” (T496).) “I needed to assist him – or I felt I needed to assist him, but he seemed quite capable of getting out on his own” (T484). First, the accused said, J had to open the window from the inside. He (the accused) was aware of the existence of the piece of wood in the window frame, but never touched it. (From the outside the window, the removal of the wood would have been an impossibility unless the window were first removed from the window frame.) On those occasions, the accused said, J would come into his unit, smoke offered cigarettes, occasionally drink offered alcohol and play computer games or look at pornography on the computer (T485).
On 25 January 2001, the accused went to unit 3 in the evening. He did not take or consume alcohol there. He offered to drive Jack and J to Semaphore for the purchase of a pizza. There was horseplay (punching) between J and him (T485). On returning to unit 3, he only stayed for about 10 minutes and did not eat any pizza. Earlier that day, he had seen and spoken with J outside the units. He had “asked [J] if he would like to come over that evening to play computer, which he indicated yes” (T486). Contrary to what the accused had said in the police record of interview, he admitted (in evidence) having re-entered unit 3 “fairly late” that night (T486):
“I knocked on the door and I heard Jack say ‘Who is it?’ or words to the effect of. I entered the premises and said, ‘It’s Jamie. I just wanted to know if [J] wanted to come over to play the computer’ that night. He said words to the effect of, ‘No, piss off, [J’s] not coming over’. I then left.”
His evidence continued (T487):
“I went to the rear of flat 3 and called out [J’s] name fairly softly. He came to his window and I asked him if he wanted to come over and play the computer. He said ‘Yes”. So, he opened the inside window, I removed the screen, he climbed out and came over and did that.”
In his unit that night, the accused said (T487):
“We played some games, possibly ten or 15 minutes, and [J] indicated that he wished to look at the pornography, which I did. I loaded the program so that he could look at it. Shortly after [J] started looking at the pornography on the computer, he began to touch himself. After this, I touched him, masturbated him. I grabbed his wrist and attempted to place his hand on my penis. At this point, he became very upset, extremely agitated, and tried to leave. He left the flat through the rear door, climbed back in through his own rear window in an extremely agitated and upset state.”
The accused followed J. He was concerned that J was upset and that he (the accused) would get into trouble for his actions that evening (T487-488). Then, he said (T488):
“I climbed through the window, [J] was standing in his own room, still looking extremely upset and agitated. I was talking to him saying, ‘It’s all right mate’. I wanted to try and calm him down. He screamed out, ‘Mum’, I don’t recall whether it was once or twice. I then left the unit via the window and went back to my own unit.”
(He said that, previously, he had exposed his penis in front of J and masturbated sitting in front of his computer (T488).) Later that night, the accused said, Jack confronted him and took from him a shortened cricket stump (T488). He did not recall having seen J outside his unit that night or J punching the fence. The accused admitted that he had not told the truth during the police interview. However, he denied having committed the offences alleged in counts 3 and 4.
In cross-examination, the accused admitted having encouraged J to come to his unit and play computer games. He also admitted to having exposed himself to J during those games, on two or three occasions (T491). Contrary to J’s evidence, he denied having touched J’s penis on any occasion other than the nigh of 25 January 2001. He accepted that there was a ‘growing sexual element to his relationship with J’ in that, on that night, he had placed his hand on J’s penis and tried to place J’s hand on his penis (T493). When he went back to unit 3 to ask that J come and play on the computer, he agreed that it was ‘quite late’, the TV was not on, there was only a faint light and he was not really sure if the occupants were awake. He disputed that he did not knock on the door (T494).
Regarding his recorded interview with the police, in explanation of his denial of having gone to unit 3 before midnight, the accused said, at first, that it was because of the “way the question was phrased” (T494). Then he said that he wished to omit it, “Because I was frightened that what had occurred that evening would be found out” (T495). When asked why he had gone to the front door on that occasion, in view of the previous occasions which he had described of J having climbed out of his bedroom window at night, the accused replied, “I’m not sure. I just went around to see if they were awake. There was some lights on in the place” (T496). He admitted that he had lied about there not being any pornography on the hard drive of his computer.
In the accused’s evidence, the occasions when J had climbed through the window at night (“usually on a pre-arranged basis”) were before Christmas and maybe “once or twice” after Christmas (T498). He agreed that there was a period after Christmas when J stopped seeing as much of him or ‘as regularly’, because of his mother’s direction (T498). J had told him of that direction (T502). He denied that this had frustrated him, even though he was sexually attracted to J (T499). When the accused went to J’s window that night and called out his name, the window was open about seven centimetres, as though the piece of wood were in position. J was not then in his bedroom. He came to the window in response to a “loud whisper” (T499). The accused admitted having lied to the police about previously having been asleep that night and been awoken by noises, “Because I didn’t want the story to come out of what actually happened between [J] and myself that night in the flat” (T500-501). He denied having been frustrated at not being able to see J in the previous weeks (T501).
Legal Directions
Upon the evidence and the issues which here arise, I give myself the following legal directions.
1.The prosecution bears the onus of proving beyond reasonable doubt each element of each alleged offence, separately considered. There is a presumption of innocence in favour of the accused. In this context, the words “reasonable doubt” have the same meaning which they ordinarily bear in the English language.
2.The accused is not obliged to prove anything. He may do so if he wishes, but at all times the prosecution bears the onus of proving the accused’s guilt of each alleged offence, separately considered.
3.Each alleged offence is to be considered separately; that is, the evidence relating to each alleged offence. The evidence with regard to any one alleged offence must not be confused or considered when considering the evidence relating to another alleged offence. It does not follow that, because the verdict may be that of guilty or not guilty with regard to any one alleged offence, the verdict should be the same with regard to another alleged offence.
However, because proof of the case for the prosecution with regard to each alleged offence is necessarily dependent upon an acceptance of the credibility and reliability of J’s evidence, I should consider what effect a verdict of not guilty with respect to any one alleged offence may have upon my ability sufficiently to rely on the evidence of J to convict the accused of any other of the alleged offences (see R v Warner [1994] 62 SASR 403; see also R v Liddy, CAA, 31 January 2002, at 46-57).
4.The offence alleged in count 1 is created by section 56 of the Criminal Law Consolidation Act, 1935 (“the Act”), which provides:
“A person who indecently assaults another shall be guilty of an offence.”
Section 57(2) provides (subject to an exception which is here not applicable) that, “no person under the age of seventeen years shall be deemed capable of consenting to any indecent assault.” At the time of the alleged offence, between 1 November 2000 and 25 January 2001, J was under 17 years of age.
To establish this alleged offence, the prosecution must establish beyond reasonable doubt that there was a direct, deliberate or intentional application of force by the accused to J, without lawful justification or excuse, and that the application of force was accompanied by or occurred in circumstances of indecency offered towards J. “Indecency”, in the context of this alleged offence, means conduct which, by any reasonable, contemporary standard, can only be regarded as indecent; that is, so offensive as to be indecent.
For a person deliberately or intentionally to do what the accused is here alleged to have done – that is, touching J’s penis while claiming to be touching his ‘pressure points’ – is, I am satisfied (as a juror), beyond reasonable doubt, indecent. The important issue which here arises is whether the accused did perform that conduct. He has denied that he did so.
5.The offence alleged in count 3 is created by section 170(1) of the Act, which provides:
“A person who commits a serious criminal trespass in a place of residence is guilty of an offence.”
If that offence is committed when another person is lawfully present in the place and the person knows of the other’s presence (or is reckless about whether anyone is in the place), then the offence is regarded as an aggravated offence (see section 170(2)(c)). Such an offence is here alleged in relation to J’s presence in his mother’s residence.
Section 168(1) provides:
“For the purposes of this Act, a person commits a serious criminal trespass if the person enters or remains in a place (other than a place that is open to the public) as a trespasser with the intention of committing an offence to which this section applies.”
By footnote to section 168, that section applies to “an offence against the person”. The abduction of a child under the age of 16 years (which is created an offence by section 80(1)(a) of the Act) is an offence against the person. Section 168(3) provides:
“A person who enters or remains in a place with the consent of the occupier is not to be regarded as a trespasser unless that consent was attained by – (a) force; or

(b) a threat; or

(c) an act of deception.”
To prove this alleged offence, the prosecution must establish beyond reasonable doubt each of the following elements:
·that, on the occasion alleged, the accused entered or remained in unit 3;
·that unit 3 was then a place of residence;
·that the accused was there as a trespasser; that is, without the consent of the occupier (R) or without other lawful excuse;
·that the accused was there with the intention of committing an offence against the person, namely, the abduction of J, a child under the age of 16; and
·that J was then lawfully present in unit 3 and the accused knew of his presence.
6.The offence alleged in count 4 is created by section 80(1) of the Act which, where relevant, provides:
“Any person who -

(a) unlawfully, either by force or fraud, leads, takes, decoys or entices away, or detains, any child under the age of sixteen years
(b) …..

with intent –
(c) to deprive any parent, guardian or other person, having the lawful care of the child, of [sic] the possession of the child; or
(d)…..

shall be guilty of an offence.”
To prove this alleged offence, the prosecution must establish beyond reasonable doubt each of the following elements:
·that, on the occasion alleged, the accused by force attempted to take away J, a child under the age of 16 years;
·that the accused was then acting unlawfully; and
·that the accused then intended to deprive J’s parent (R) of possession of J.
Were I to be satisfied that the accused picked up J and carried him towards J’s bedroom window against his will, that would be sufficient “force” to satisfy that requirement of the offence (see R v Webb (1996) 186 LSJS 184, at 185).
To prove that the accused “attempted” to commit this offence, the prosecution must establish that his actions or conduct formed, and were intended to form, part of a series of actions which would constitute the actual commission of the offence of abduction of a child aged under 16 years if those actions were not interrupted, terminated or stopped, and that the actions constituting the attempt were not actions or conduct merely preparatory to committing the completed offence, but were actions on conduct proximate to the completion of that offence and were immediately and not merely remotely connected to the completed offence.

7.Although each element of the offences alleged in counts 3 and 4 must be proved, upon the manner in which the trial was conducted, the important issue is whether the prosecution has established that the accused did enter unit 3 on the occasion alleged in respect of those counts.
8.This case is primarily concerned with the separate commission of alleged offences between the 1 November 2000 and 26 January 2002 at Glanville. However, in addition to there having been received evidence relating to those alleged offences, there was also received evidence relating to other incidents which were said to have occurred between the accused and J on other occasions which are not here the subject of any alleged offences; that is, incidents which were said to have occurred during the same period of time (‘the relationship evidence’).
Generally speaking, a jury is not informed of alleged behaviour or misconduct of an accused person on any occasion other than the occasions which are the subject of the charges being tried. The evidence relating to those other occasions may here be described as evidence of the relationship which is said to have existed between the accused and J before and during the commission of these alleged offences. It is important that I be directed as to the uses which I (as the jury) am entitled to make of such evidence and, even more importantly, the uses to which such evidence must not be put by me.
That evidence, the evidence of what is said to have occurred between the accused and J on occasions which are not here the subjects of alleged offences, was here received or admitted into evidence as indicating, if I (as the jury) accept that evidence or any part of that evidence (that is, if I am satisfied that those acts have been proved), the nature of the relationship which existed between those two persons before and around the times in question, and as establishing, again, if I (as the jury) accept that evidence or any part of that evidence, the context and setting in which these alleged offences are said to have occurred – a relationship, context or setting which was not of an innocent character but which points strongly to the commission of the offences in question – a relationship, context or setting that I (as the jury) would be entitled to conclude was abnormal and in which the accused was sexually attracted to J to the extent that he gave physical expression to that attraction (see B v The Queen (1992) 175 CLR 599, at 619, per Dawson and Gaudron JJ.; R v Nieterink [1999] 76 SASR 56; and R v Liddy, CCA, 31 January 2002).
That evidence was also here admitted for the purpose, again, if I (as the jury) accept that evidence or any part of that evidence, of enabling me properly to appreciate and evaluate the evidence of both J and the accused with regard to these alleged offences. Without the knowledge that these alleged offences are alleged to have occurred in the context or setting of that relationship (whatever that relationship really was, and that is for me (as the jury) to consider), I would not be able properly to appreciate and evaluate the evidence of the two participants as to these alleged offences.
Moreover, the significance of any failure of J to complain of that alleged conduct must be evaluated in the light of the relationship which I (as the jury) find to have existed between the parties, including the course of alleged sexual misconduct (see King CJ in R v Dolan [1992] 58 SASR 501).
Those, therefore, are the proper or permitted uses or purposes to or for which I (as the jury) am entitled to make of that evidence of the relationship which previously existed between the two participants. However, as indicated, it is also important, even more important, that I (as the jury) be directed as to the uses or purposes to or for which that evidence must not here be put by me.
The accused can here be convicted of one or more of these alleged offences, separately considered, only if I (as the jury) am satisfied beyond reasonable doubt that the conduct of the alleged offence that I am separately considering did occur. It is not permissible for me to convict the accused of any one or more of these alleged offences on the basis that, although the conduct identified in any one or more of the alleged offences has not been proved beyond reasonable doubt, nevertheless I am satisfied (as the jury) that some other, discreditable conduct (that is, conduct described in the evidence as to the relationship which existed between the two participants) or another alleged offence has been proved. That would be a quite improper or impermissible manner for me to approach consideration of these alleged offences.
Evidence of what is alleged to have occurred between J and the accused on other occasions which are or are not here the subjects of any charges must not be used by me (as the jury), when separately considering each of these alleged offences, as indicating a propensity, inclination or disposition of the accused to commit a crime or crimes of a particular kind, or as indicating that, from his other behaviour, he is the kind of person likely to have committed these alleged offences, separately considered, and, therefore, that he did commit these alleged offences, separately considered. Such an approach by me to this case would be quite improper.
9.Just as evidence of a recent complaint made by an alleged victim of a sexual offence (complaint, that is, to another person of what allegedly occurred during the commission of the alleged offence) may be introduced into evidence and regarded, if I (as the jury) accept that evidence, as being evidence consistent with or not contradictory of the alleged victim’s evidence, and as being relevant to his or her credibility as a witness, so also the absence of complaint, or delay in complaining, may be taken into account in evaluating the evidence of the complainant.
However, in the case of an alleged sexual assault against a child or young person by a person who has the alleged victim’s trust or confidence, it should be borne in mind, when assessing the alleged victim’s evidence and credibility, that he or she might have been reluctant to resist or protest against the person and, for that reason, reluctant also to complain. “As well, a child [or young person] in that situation may be reluctant to complain from fear that he or she will not be believed, from fear of punishment or, even, fear of rejection by the [alleged] offender … And if approached on that basis, the argument with respect to the absence of [or delay in] complaint and with respect to the complainant’s apparently normal conduct … loses all force” (per Gaudron J in M v The Queen (1994) 181 CLR 487, at 515).
10.The case for the prosecution depends entirely upon the evidence of J, who was then 12 years old and a “young child” pursuant to section 4 of the Evidence Act, 1929. His allegations have been denied by the accused. This case is, essentially, one of J’s affirmation against the oath of the accused. There is no independent evidence supportive or confirmatory of J’s evidence as to the commission of any of the three alleged offences.
In the circumstances of this case and because there exists the possibility of J having been susceptible to the influences of other persons, the possibility of his imagination having run away from him (that is, of him confusing fact with fantasy) and the risk of youthful irresponsibility, which might have prompted a person in J’s state of mind to make false accusations, either for an improper motive or purpose, or without pausing to attain an appreciation of the seriousness of the consequences of such a course, it is necessary that I be given a warning with regard to my acceptance (as the jury) of J’s evidence.
Such a warning I therefore give myself, namely, that it would be dangerous or unsafe for me (as the jury) to act upon the evidence of J, alone, and to find the accused guilty of any of these alleged offences. In my consideration of these alleged offences, I should scrutinize, consider and evaluate J’s evidence most carefully, cautiously and critically, because his evidence is crucial to the case. In so doing, I should consider the possibility of fabrication, fertile imagination, immaturity, irresponsibility and any underlying motive or purpose as possible reasons for J having given false evidence against the accused.
If, upon such a cautious scrutiny, consideration and evaluation, I (as the jury) were to conclude that I cannot rely on, or do not accept, J’s evidence, then that is an end of the matter and I must find the accused not guilty of any offence. If however, upon such a cautious scrutiny, consideration and evaluation of J’s evidence, and particularly in relation to any motive or purpose for which he might falsely have given evidence, I were to conclude or be satisfied that his evidence was accurate and reliable, then I (as the jury) am entitled to, and may, act upon his evidence and find the accused guilty of these, or any of these alleged offences, even though or notwithstanding that there is no independent evidence supportive or confirmatory of J’s evidence, provided, of course, that all of the elements of each offence have been established.
(Legal authorities from which this direction has been derived include: Bromley v The Queen (1986) 161 CLR 315; R v Pahuja [1987] 49 SASR 191; Longman v The Queen (1989) 168 CLR 79; B v The Queen (1992) 175 CLR 599; R v Bryce and Dewar (1993) 170 LSJS 52; Question of Law Reserved on Acquittal (No. 1 of 1993) [1993] 59 SASR 214; Pix v R (1993) 171 LSJS 41; M v R, reasons for decision of the Court of Criminal Appeal delivered on 18 August 1993; Warner v R [1994] 62 SASR 403; and M v The Queen (1994) 181 CLR 487.)
11.In assessment of a witness’s evidence, I should bear in mind that, “It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness’s evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital – such as the account of conversation in a fraud case or the description of a person where identity is the issue – discrepancies and inconsistencies in the witness’s account may make it impossible to accept that person’s evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness’s general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning detail are of little moment” (McHugh J in M v The Queen (1994) 181 CLR 487, at 534; with my emphasis). Inconsistencies for which there is no satisfactory explanation may undermine the credibility of a witness and create doubt as to the reliability of the witness’ evidence (Doyle CJ in R v Nieterink (supra), at 74).
12.The telling of a lie by a witness or an accused person, either in evidence or elsewhere, may affect the credibility of that person; that is, the telling of a lie may be relevant to whether the person is to be believed in other respects. However, there may be many reasons for which a person may lie which do not adversely affect his or her credibility. Such reasons must be considered when deciding whether an established lie does adversely affect that person’s credibility.
13.There are circumstances in which a statement made by a person to another person may be admitted as evidence of the truth of what was asserted in the statement. Consideration of that issue here arose in relation to the statement which R said that J made to her when she had heard him scream and she went to his bedroom, namely, “Jamie has just tried to take me through the window” (T204). A similar consideration arose in relation to the almost identical statement which Jack said that J made to him, seconds later, namely, “Jamie tried to carry me out the window” (T372).
For statements made after the event to be admitted for that purpose, by preliminary ruling the trial judge must be satisfied that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded (see Lord Wilberforce in Ratten v The Queen[1972] A.C. 378, at 390). The statement must be made in such conditions of approximate but not exact contemporaneity of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused (per Lord Wilberforce in Ratten’s case, (supra) at 391; see, also, R v Andrews [1987] A.C. 281; Walton v The Queen (1980) 166 CLR 283; and Papakosmas v The Queen(1999) 196 CLR 297). In giving guidance to the trial judge in this task, in Andrews’ case (supra) Lord Achner said (at 301):
“3. In order for the statement to be sufficiently “spontaneous” it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.”

(My emphasis.)

In determining the admissibility in evidence of these statements (as the trial judge), I have considered whether J might have had a motive of his own to fabricate or concoct, namely, concern for his own position (on the accused’s case) in having gone at night to the accused’s unit without parental permission. In all the circumstances, including the appearance of J at the time of making the statements, and upon my general assessment of his intelligence and capacity to dissemble, I am satisfied that the statements that J made to his mother and Jack in his bedroom that night were so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. For these reason, those statements are admitted as some evidence of the truth of what was asserted in the statements and shall be so regarded by me (as the jury).
14.In a case such as this, where there are conflicting versions by the only two participants on matters central to the case (here, the affirmed evidence of J, on the one hand, and the sworn evidence of the accused, on the other) there are, for practical purposes, three possible conclusions available to me (as the jury); that is, any one of the three, in respect of each alleged offence.
First, I may be satisfied upon the evidence for the prosecution (that is, the evidence of J) that each and every element of one or more of the alleged offences has been proved or established beyond reasonable doubt (and that, of course, is the essential question in the case), in which situation my verdict should be that of guilty with regard to that or those alleged offences.
Secondly, I may consider at the end of the day, having considered all of the evidence (including the sworn evidence of the accused and the evidence presented on his behalf in cross-examination of the Crown witnesses), that there remains a reasonable hypothesis consistent with his innocence – that is, that there is a reasonable possibility that he is not guilty (that is, that I am not satisfied of his guilty beyond reasonable doubt) – in which case my separate verdicts should be those of not guilty.

Thirdly, I may, after full and careful consideration of the evidence, come to the conclusion that I am not able to say where the truth lies, or that I am unable to say which of the two participants is telling the truth (bearing in mind that this is not a question of preference, and that the accused does not here have any burden of proof to discharge). If that were to be the conclusion to which I arrive then, of course, my separate verdicts should also be those of not guilty, because in that situation, also, it would mean that I am not satisfied of the accused’s guilt beyond reasonable doubt (R v Calides [1983] 34 SASR 355).
Findings

Upon all of the evidence, I am satisfied that (as he quite frankly admitted in evidence) the accused became sexually attracted to J and gave physical expression to that attraction. He admittedly took J fishing, sat him on his lap in the car, hugged him and achieved an erection, which J felt on the back of his leg (count 2). J was understandably attracted to the accused’s unit because of the computer and the computer games which he could there play. The accused encouraged that attraction. He occasionally gave J cigarettes and alcohol. He occasionally used the computer to look at child pornography with J. He occasionally exposed his penis to J when they were looking at the computer screen. Quite frankly, the accused admitted all of that behaviour or conduct towards J. He denied having touched J’s penis until (he said) the night of 25 January 2001. (According to J, the accused had touched his penis on about three occasions (T66).)
The offence alleged in count 1 (“the smoking incident”) occurred, I am satisfied, not long after the accused first met J and before the accused’s sexual feelings for J had found expression in the events which subsequently took place between them in his unit. In relation to that alleged offence, there were inconsistencies and discrepancies in the evidence. J said that the accused sat him on his lap on the same chair; that the accused touched his penis on top of his underpants while touching his pressure points; and that he told his mother about the accused having touched his pressure points after returning from the accused’s unit that night. In cross-examination, J agreed that he had said, in his police statement, that he was not wearing underpants that day or night; and that he had spoke to his mother immediately after the accused had touched his pressure points. (There was no suggestion in J’s evidence that he had complained to his mother of the accused having touched his penis.)
R said that, when checking for a pulse in J’s neck, wrist and groin, the accused was sitting on the corner of J’s chair; that she then went to the refrigerator; and that J did not subsequently discuss that incident with her. In cross-examination, it emerged that R had not said that the accused was present when she spoke to J about smoking, until she made her fourth statement while waiting to give evidence; and that she had not told of the accused then having touched J’s pulse points, until here giving evidence. Those omissions, she explained, resulted form her having blocked things from her mind.
The accused denied that J had sat on his lap; that he had referred to pulse or pressure points; and that he had anywhere felt for J’s pulse when J smoked between six and ten cigarettes.
In assessment of the witnesses, I thought that the demeanour of J, R and Jack and the probability of occurrence of their general account were persuasive; and that inconsistencies and discrepancies in their evidence concerning detail were of little moment. I found them to be credible and reliable witnesses whose evidence was not undermined by any inconsistencies or discrepancies. Although J did not complain of the offence alleged in count 1, in assessing his evidence and credibility it was borne in mind that he might have been reluctant to resist and complain for reasons adverted to by Gaudron J in M v The Queen (supra), about which I have given legal direction. The accused presented in a direct and emphatic manner, both in his record of interview and in evidence. However, he here admitted to having lied in that interview about not having gone into unit 3 just before midnight on 25 January 2001 and not having any pornography on the hard drive of his computer. His explanation for having lied about the former matter was fear that what he said had occurred that night would be revealed. I am satisfied that those lies do adversely affect the accused’s credibility as a witness.
In application of the legal directions here given, upon the evidence I am satisfied that the accused’s guilt of the offence alleged in count 1 has been established beyond reasonable doubt.
Turning to the offences alleged in counts 3 and 4, the crucial issue may be express as follows:
whether, upon the evidence of J, the prosecution has established beyond reasonable doubt that, during the night of 25 January 2001, the accused entered unit 3 through J’s bedroom window, walked into the lounge room, picked up J from where he was sleeping near his mother and Jack, spoke with J as he carried him in his arms into J’s bedroom, was attempting to carry him through the window when J screamed out for his mother, then departed through the window and returned to his unit; or
whether it is possible, upon the evidence of the accused, that, previously that night the accused had gone to J’s bedroom window, succeeded in attracting the attention of J who was then in the lounge room with his mother and Jack, assisted J in getting through the window, went with J to unit 2 where J remained for a while, J then left unit 2 and returned to unit 3 through his bedroom window upset at the accused having tried to place his (J’s) hand on his penis, the accused followed J through the window into the bedroom and was there endeavouring to pacify him when J screamed out for his mother and the accused then returned to his unit through the window.
Upon the evidence, I am satisfied that the following position has been established:
after J went to bed in his bedroom that night, he heard noises at the window;
he became frightened and went to sleep in the lounge room near his mother and Jack;
his mother then removed the piece of wood from the window frame and further opened the window in an effort to obtain an air flow on a hot night;
the accused had been drinking alcoholic liquor that night;
the accused entered unit 3 just before midnight through the unlocked front screen door;
he spoke to Jack and asked whether J could go into his unit and play on the computer;
the accused was then sexually attracted to J and had previously given expression to that attraction;
around Christmas 2001, J had been told by his mother and Jack that he was not allowed to go into the accused’s unit and the accused was aware of that direction;
after Jack had told the accused to go home, he locked the screen door and checked the security of unit 3;
when he checked J’s bedroom window, the window was open to an extent greater that that which the piece of wood permitted when positioned in the window frame;
when J’s mother subsequently went to his bedroom in response to his screams, J was sitting on the floor near the window and beginning to stand up;
in response to the question of his mother (and then Jack, who followed R into the room), J said that the accused had tried to take him through the window; and
J’s body was then shaking, his voice was trembling and his eyes were wide open.
In considering the possibility that the events that night unfolded in the manner deposed to by the accused, that would entail J having disobeyed the directions of his mother and Jack that he not go into the accused’s unit. It would also entail the accused having risked attracting the attention of R or Jack by calling out to J from outside the bedroom, when he was aware (from his previous nocturnal visit) that J was sleeping in the lounge room with those two persons. Although it was put to J (in cross-examination) that, after he climbed back into his bedroom, the accused followed him “and put his arms out” to J saying that he was sorry (T107) before J yelled out, the accused did not give evidence of any such precipitating arm movement. In cross-examination, it was also put to J that he was standing in his bedroom doorway (T107) when the accused climbed in through the window. The accused, in evidence, said that J was “standing in his own room, still looking extremely upset and agitated” when he (the accused) climbed [in] through the window (T488). Had the events occurred as postulated by the accused, I consider it highly improbably that, in his upset and agitated condition, upon seeing the accused beginning to climb in through the window, J would not have immediately moved into the lounge room near his mother and Jack. The position in which J was seen near the window by his mother and Jack is also inconsistent with J having been standing ‘in his doorway’ and “in his room”.
In application of the legal directions and warning here given, upon all of the admissible evidence in relation to the offences alleged in counts 3 and 4, including: my acceptance of the evidence of J, R and Jack; the accused’s admitted sexual attraction to J; his probable frustration at J not being allowed to go into his unit; his belated admission (in evidence) of having gone to unit 3 just before midnight that night; the statements that J made to R and Jack in his bedroom that night (which, I am satisfied, were made and with sufficient spontaneity and approximate contemporaneity with the event which excited those statements as to exclude the possibility of concoction or distortion to the advantage of J or the disadvantage of the accused) which provide some affirmative evidence of the truth of what J asserted in those statements; and the adverse affect of the accused’s admitted lies upon his credibility as a witness, I am satisfied that all of the elements of those two offences have been established beyond reasonable doubt and that his guilt of each of those offences has been established.
For these reasons, I find the accused guilty of the offences alleged in counts 1, 3 and 4 of the information.

[2002] SADC 14

22 February 2002