R v Fox
[2011] SADC 100
•8 July 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FOX
Criminal Trial by Judge Alone
[2011] SADC 100
Reasons for the Verdicts of His Honour Judge Barrett
8 July 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused was charged with four counts of unlawful sexual intercourse with a school student of his who was aged 17 years. The accused agreed that he was the complainant's teacher during the three months when it is alleged that the four charged and other uncharged acts of unlawful sexual intercourse occurred. The accused denied the unlawful sexual intercourse. He said the only sexual contact was two episodes when the complainant made sexual advances towards him. The complainant reported the allegations to a subsequent lover 2 years later and to the police 24 years later.
Held: The complainant's account of the four charged occasions was truthful and reliable. The accused was convicted on all four counts.
Criminal Law Consolidation Act 1935 s 49; Evidence Act 1929 s 34CB, 34M, referred to.
HML v R (2008) 235 CLR 334, (2008) 245 ALR 204; (2008) 82 ALJR 723; R v Nieterink (1999) 72 SASR 56; R v J, JA [2009] SASC 40; R v Sluczanowski (2008) 256 LSJS 277; [2008] SASC 185, considered.
R v FOX
[2011] SADC 100
The accused is charged with four counts of unlawful sexual intercourse. The prosecution alleges that the accused engaged in four acts of fellatio with the complainant in 1984 when the accused was the complainant’s drama teacher. The acts are among an unspecified number of such acts said to have taken place in the latter half of that year. The accused was 39 and the complainant was 16 or 17. The complainant was born on 22 August 1967. I reproduce the charges on the Information.
Count 1 Unlawful sexual intercourse (Section 49(5) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Malcolm Arthur Fox between the 30th day of June 1984 and the 14th day of December 1984 at Marion, being the teacher of [CC], a person under the age of 18 years, had sexual intercourse with [CC] by causing him to perform an act of fellatio on him.
Count 2 Unlawful sexual intercourse (Ibid).
Particulars of Offence
Malcolm Arthur Fox between the 30th day of June 1984 and the 14th day of December 1984 at Blackwood, being the teacher of [CC], a person under the age of 18 years, had sexual intercourse with [CC] by causing him to perform an act of fellatio on him.
Count 3 Unlawful sexual intercourse (Ibid).
Particulars of Offence
Malcolm Arthur Fox between the 30th day of June 1984 and the 14th day of December 1984 at Blackwood, being the teacher of [CC], a person under the age of 18 years, had sexual intercourse with [CC] by causing him to perform an act of fellatio on him.
Count 4 Unlawful sexual intercourse (Ibid).
Particulars of Offence
Malcolm Arthur Fox between the 10th day of September 1984 and the 14th day of December 1984 at Edwardstown , being the teacher of [CC], a person under the age of 18 years, had sexual intercourse with [CC] by performing an act of fellatio on him.
Counts 1 to 3 allege that the accused caused the complainant to perform an act of fellatio on him in three different locations, respectively, his office in the drama building at the school, his own bedroom and his own home office. Count 4 alleges that the accused performed an act of fellatio on the complainant in the complainant’s mother’s bedroom.
Counts 1 to 3 are alleged to have occurred between 30 June and 14 December 1984. Count 4 is said to have occurred between 10 September and 14 December 1984. December 14 was the end of the 1984 academic year. It is an agreed fact that the accused was the complainant’s drama teacher throughout 1984, the complainant’s Matriculation year. It appears the accused was also his drama teacher in at least Years 9 and 11 (1981 and 1983). The complainant thought the accused was his teacher continuously from 1981 to 1984. The complainant was a student at the school from 1980 to 1984 inclusive. The accused was a teacher at the school from 1977 to 1988.
In South Australia the so called age of consent is 17 years[1] but where the accused is in a position of authority[2] the age is 18 years[3]. Although counts 1 to 3 contemplate offending as early as 30 June 1984, the complainant’s evidence tended to suggest that it started in late August, ie after his 17th birthday. I will return to that topic.
[1] Section 49(3) of the Criminal Law Consolidation Act.
[2] Defined in s 49(5a) to include a teacher.
[3] Section 49(5).
The accused denies the complainant’s allegations. He gave evidence and said that there was no sexual offending at all. Nothing of a sexual nature happened between the parties before the end of the school year. The only sexual connection between the two of them occurred on about 28 December 1984, the eve of the accused’s departure overseas, and on 4 February 1985, the day of his return. The accused said the sexual connection in each case consisted of the complainant making a sexual approach to, or attack on, him which took him by surprise and which he stopped. On each occasion the complainant touched the accused’s genitals, the first time fondling them briefly while the accused was clothed, and the second time masturbating the accused after taking down his trousers and underpants.
Legal principles
The prosecution must prove beyond reasonable doubt that intercourse took place as alleged by the complainant. It must also prove that, at the time, the complainant was under the age of 18 years and a pupil of the accused. Each of the four counts must be considered separately.
The defence does not suggest there is not cross-admissibility between the four counts. The four counts involve the same parties. Each count alleges almost identical offending which is said to have taken place over a relatively short period of time. Nevertheless each count relies on different evidence and so each must be considered in the light of that evidence.
In addition to the four charges there are other unspecified occasions on which similar acts occurred. It is agreed between the parties that the only purpose for which the uncharged acts are admissible is to lend support to the inference that the accused had a sexual interest in the complainant. That being so, the evidence of uncharged acts cannot be used for that purpose unless it is proved beyond reasonable doubt[4]. Such evidence may not be used as evidence of bad character[5].
[4] HML v R (2008) 235 CLR 334; (2008) 245 ALR 204; (2008) 82 ALJR 723.
[5] See generally R v Nieterink (1999) 72 SASR 56.
There has been a delay of some 24 years in reporting the matter to police. The offences are alleged to have occurred in late 1984. The complainant did not report the matter to the police until shortly before he gave his first statement to them in late June 2008. It is obvious that the accused has suffered a significant forensic disadvantage by reason of that delay. Unsurprisingly, he was unable to remember most of the specific occasions referred to by the complainant in his diary. I will return to this topic when I analyse the evidence but the complainant kept a diary in which, at some stage, he made coded notes on four occasions when he said sexual intercourse took place with the accused. None of these occasions was one of the charged offences. Quite possibly the accused would have been able to say what he was doing on those occasions if the complaint had been made promptly. Not only is the accused disadvantaged by not being able to remember those occasions but he is denied the opportunity of calling witnesses who might be able to speak of his movements. There may have been documents or other materials he could produce to support what he said. These considerations would also apply to occasions not identified in the complainant’s diary. I bear these forensic difficulties in mind when scrutinising the evidence[6].
[6] Section 34CB(2)(b) of the Evidence Act.
I say something further about section 34CB(2)(b) of the Evidence Act. The placitum does not make it clear that the scrutiny there contemplated is scrutiny of the evidence for the prosecution. Yet one would not generally think of particularly scrutinising the evidence of the defence. To subject the accused’s evidence, or that of defence witnesses, to particular scrutiny would be to run the risk of reversing the onus of proof. However, the subsection is designed as a protection for the accused. It would therefore be somewhat ironic not to take into account the accused’s forensic disadvantage when considering his own evidence or that of his witnesses. I interpret the subsection to require me to take the accused’s forensic disadvantage into account when subjecting the complainant’s evidence to scrutiny (particularly bearing in mind that his evidence is uncorroborated) and also the evidence of the other prosecution witnesses. I also make allowance for the accused’s forensic disadvantage when considering his own evidence.
The only evidence lead by the prosecution of the complainant making a complaint or report of intercourse with the accused was a report he made to [JH], the man with whom he had a sexual relationship after that alleged with the accused. (In fact, the complainant said he might have had intercourse with the accused a couple of times after he started the sexual relationship with [JH].) The complainant did not tell [JH] of the relationship with the accused until two years after the event. The complainant was not asked exactly what he had told [JH] about the accused. He was not asked why he had not told anyone before. [JH] was the person to whom the complainant first reported the matter. In that sense it might be regarded as the initial complaint of the accused’s offending.
The complainant was cross-examined about reports he had made to his mother, his friend [SF] (both of whom gave evidence) and two other friends [EJ] and [SK]. The purpose of this cross-examination was to demonstrate previous inconsistent statements. I will return to that topic.
I direct myself on how evidence of complaint may and may not be used[7].
[7] Section 34M of the Evidence Act.
Evidence of complaint is not admissible as the truth of what was reported. The evidence is admitted to show how the allegation first came to light and to demonstrate, if it can, consistency of conduct. In this case the evidence about the report to [JH] was led without objection. Consistency for these purposes means both consistency in the sense of reporting a sexual crime as one might expect a victim to do, and it also relates to consistency of the account given over time. Is the account given to other people in the same or similar terms as the account given in court[8]?
[8] R v J, JA [2009] SASC 40 at [95] per Duggan J, with whom Nyland and White JJ agreed.
In this trial I do not think the evidence of the report to [JH] assists the prosecution. [JH] was not called as a witness. I do not know whether the account the complainant gave to him was consistent in its terms with the complainant’s account in court. The complaint was not made for two years. I do not know why that was so. No one asked the complainant about that at all.
While the evidence of the complaint to [JH] does not assist the prosecution, such evidence may assist the defence by showing inconsistency. Ms Powell suggested no way in which this evidence may be used to assist the defence. In the circumstances I will ignore the evidence of complaint to [JH]. As I have said, I will return to the topic of the alleged inconsistent statements made to the complainant’s mother and his friends, [SF], [EJ] and [SK].
I mention two further legal considerations.
I gave leave to both counsel pursuant to s 34L of the Evidence Act, to question the complainant about sexual experiences he had with another man [AP] before the alleged sexual contact with the accused, and one man afterwards [JH]. It was really a joint application by both counsel to be given permission which, in the circumstances, was justified. The questioning about other sexual experiences was limited to those two topics and counsel remained within those limits.
A voir dire was conducted before the trial began. The accused sought to have excluded evidence of a telephone conversation the complainant had with the accused at the instigation of the police. The conversation was taped and recorded. On the application of both counsel I listened to the tape. After hearing submissions from both counsel I excluded the tape. I ignore the conversation for the purposes of my verdicts.
Analysis of the evidence – The Prosecution Case
The prosecution called the complainant, his mother, his friend [SF] and [P], a teacher who also taught drama at the school when he was there. Facts were agreed.
The accused gave evidence, but called no other witnesses. Further facts were agreed.
I say at the outset that I gained little from the demeanour of the complainant or the accused in the witness box. Mr Preston for the prosecution urged me to favourably consider the complainant’s demeanour in the witness box. While I observed nothing unfavourable to the complainant from his demeanour in the witness box, I gained little assistance from it. The situation was the same with the accused. I think Ms Powell QC’s submission on the demeanour of the complainant and the accused was pertinent. She said candidly, but with no criticism of either witness, that demeanour may be even less reliable as an indicator of creditworthiness with people who are, or have been, professional actors.
I find more helpful considerations such as inherent likelihood (or unlikelihood), comparison with documentary evidence and comparison with other evidence which I accept as truthful and reliable.
I bear in mind that in essential respects the factual disputes are instances of “oath on oath”. The complainant’s evidence is uncorroborated. Corroboration is not required as a matter of law or practice, but I scrutinise with particular care the complainant’s evidence because there is no corroboration.
The complainant is now 43. He lives in Sydney. Until 1982 he lived with his adoptive parents and older sister in Edwardstown. In October that year his parents separated. His father moved out of the matrimonial home and went to live with a male workmate in a house in Para Hills. The rest of the family remained in the house in Edwardstown. The workmate’s name was [AP]. The complainant visited his father most weekends. Due to differences he had with his mother, the complainant moved to live with his father and [AP] a year later in June 1983. It is a little unclear whether his father and [AP] then lived at Para Hills or whether they had moved to Kurralta Park. In June 1983 the complainant was in Year 11. He turned 16 in August.
The complainant says that almost immediately after he moved to his father’s house, [AP] raped him. (“He raped me basically”[9].) The complainant’s father was apparently absent at the time. He was spending some time with his then girlfriend.
[9] T66.
Little evidence was given of the circumstances of the complainant’s relationship with [AP]. It appears the relationship involved anal intercourse. Although the complainant referred to being raped, he described the experience as “a sexual relationship” when he told the accused about it a year later in June 1984[10]. The accused advised the complainant to leave his father’s home and return to live with his mother. The complainant took that advice. A couple of weeks later he moved back to live with his mother. His diary suggests he moved to her place on 30 June 1984. The complainant told the accused that the affair had ended a week or so beforehand. That would suggest that the sexual contact between the complainant and [AP] extended for about 12 months from sometime in June 1983 to the beginning of June 1984. I mention this topic because the complainant described his sexual relationship with [AP] lasting 18 months. His more detailed evidence would suggest that it did not last that long.
[10] T68.
The complainant says that when he told the accused about his relationship with [AP] he was crying and “pretty much hysterical - distraught”. He said that in retrospect he thinks he was having a panic attack. He asked the accused not to tell anyone else about what he was disclosing[11].
[11] T68.
The accused denies that the complainant was hysterical or crying when making the disclosure. He says the complainant was “concerned but cool”[12]. He said he has never seen the complainant as other than “cool and collected”. He said he felt unqualified to give advice and suggested the complainant see the school counsellor. The complainant told him that he did not want to tell anyone else about the matter so the accused advised him to leave his father’s house and return to live with his mother. The accused said there was then no protocol of mandatory reporting of such incidents, so he kept the confidence he was asked to keep.
[12] T225.
Curiously the accused said that he did not really think about whether the relationship the complainant was telling him about was an appropriate one. This is surprising because in June 1984 the complainant was only 16 and he was saying that the relationship with his father’s friend had been going on for quite a long time. The accused was not asked whether the complainant had told him he had been raped. He said he made no enquiry about [AP’s] age. He said,
I thought it was an affair that he got himself into, so I did not do anything about it.
This incident assumes some importance in the trial for a number of reasons. The prosecution argues that the accused saw this disclosure as an opportunity to take sexual advantage of the complainant. That would partly explain, or would at least be consistent with, his not reporting the matter to someone else such as the counsellor. The complainant says that following this disclosure the accused “seemed to invite me to parties or gatherings that he had either at his house or locations around Adelaide”[13].
[13] T153.
In cross-examination the complainant agreed that, apart from going with the accused and other students to plays, the accused invited him to only one party. It is agreed that was a party at the accused’s house on 21 July 1984. There are photographs taken at the party[14]. The accused invited the complainant and his friend [SF] to help cater at the party. There was a picnic at Waterfall Gully Road on 6 September 1984 where photographs were also taken[15]. It seems that it was not the accused who invited him. While the date of the first alleged sexual contact is not entirely clear from the complainant’s evidence, the general tenor of his evidence is that it occurred between those two dates (ie 21 July and 6 September 1984), perhaps closer to the latter. At one point the complainant said that sexual relations had commenced a week before the latter date.
[14] Exhibits P2 and P3.
[15] Exhibits P4 and P5.
So the significance of the disclosure from the Crown’s perspective is that it is the point at which the accused decided to sexually exploit the complainant. On that occasion he learnt that the complainant was homosexual and he decided to take advantage of that fact for his own purposes.
The defence point to this occasion as indicating something else. The defence hypothesis is that later, perhaps many years later, the complainant came to the view that the accused had let him down by failing to take appropriate action about the disclosures. He came to resent the accused for this inaction and for his failure to be more supportive. Ms Powell put that proposition to the complainant in cross-examination. He did not entirely deny it. He said that he felt “challenged” by the fact that the accused had not reported [AP’s] behaviour[16]. Ms Powell put to the complainant that he also came to resent the accused for encouraging him in a career of acting, but he had not been successful in that career. The complainant denied any resentment on that account.
[16] T142.
These alleged resentments are submitted by the defence as possible motives to lie. I bear in mind, as a matter of law, that, while a suggested motive for the complainant to lie is relevant to my consideration of the facts, I should also bear in mind first, that even if I disbelieved the suggested motive to lie, that does not mean that the complainant is telling the truth. People lie for many reasons, some not discernable. Second, and critically, it is not for the accused to prove a motive for the complainant to lie. It is not for him to prove anything. The burden of proof remains always on the prosecution[17].
[17] R v Sluczanowski (2008) 256 LSJS 277; [2008] SASC 185.
Thus, from the defence perspective, the circumstances of the disclosure bear on one motive for the complainant to lie about the sexual relationship with the accused.
I turn to the evidence of the offending itself. The complainant says that he remembers four particular occasions on which fellatio occurred between him and the accused. On three occasions (counts 1 to 3) he sucked the accused’s penis and on one occasion the accused sucked his penis (count 4).
The complainant does not suggest that count 1 was the first occasion that the offending occurred, nor that count 4 was the last. He is unable to say anything about the circumstances of the first or the last occasion. Ms Powell submitted that the complainant’s inability to identify the first and last occasions is uncommon in cases of this sort and is adverse to the complainant’s credit. If the complainant’s account is true, surely he would remember the first occasion when his teacher had intercourse with him. Even if he had difficulties remembering the exact number and sequence of events, the first, and probably the last, occasion would be sufficiently remarkable to remember. Ms Powell questioned the complainant on this topic. In respect of the first occasion he simply said he could not say how he and the accused started their sexual relationship[18]. He thought it was in the accused’s school office[19] but beyond that he could give no detail.
[18] T109-10.
[19] T110.
He was no more forthcoming in respect of the end of the relationship. He said he thought he and the accused had sex a couple of times after he started having sex with a man called [JH]. That sexual relationship began, he said, on 13 October 1984. He noted that in his diary with a symbol denoting [JH] and he gave details of the circumstances of that occasion. He said it was the day after being first introduced to [JH] by the accused at school. [JH] was an officer the Education Department and he viewed a play which the complainant produced as part of his school work. The first sexual episode with [JH] was in [JH’s] car which was parked in the city. The two had unexpectedly seen each other at a theatrical production which was also entered in the diary. (I digress to mention that the complainant said that, from his diary note, he can say he broke up with [JH] on 1 December 1984. Yet there appear in his diary after that date symbols said to denote [JH] and which were said to represent sexual encounters he had with [JH]. There are entries for 3, 4, 7 and 10 December. The complainant was not questioned about these later entries.)
In cross-examination the complainant agreed that he had been able to describe how the relationship with [AP] began. Ms Powell pointed out that the complainant was unable to describe how his sexual relationship with the accused began yet he was able to describe how the relationships with [AP] and [JH] began. The complainant said that, in respect of [AP], the first sexual encounter was rape and it was also the first sexual encounter he had ever had. He offered no explanation for being able to remember the first encounter with [JH]. He did say that he was sexually attracted to [JH] but had not been so with the accused.
In respect of the end of the relationship with the accused the complainant said that there was never any discussion between them about it ending, just as there had been no discussion about it when it was going on. The gaps between the episodes became longer and it finished in the latter part of November. He said the episodes stopped before he broke up with [JH] on 1 December[20].
[20] T122.
Ms Powell’s submission is that the complainant’s credit is damaged by his inability to describe how the relationship began and ended. His inability to really say anything on these topics suggests he is being untruthful. While I am not so sure about it being uncommon for a complainant in a sexual case to be unable to describe how and when sexual offending ended, I think there is some force in the submission that it is uncommon for a complainant to be unable to describe what led up to the first encounter and to say something of the circumstances of that first encounter. I think I am entitled to rely on my experience as a practitioner and a judge in making that observation. While it is not possible to draw on statistical or expert evidence to support it, I do not see why I should not draw on my forensic experience. I do not see why I should put myself in the position of a jury who may have no such experience to rely on.
Having accepted the defence submission that it is uncommon for a complainant to be unable to remember how offending began, particularly when the complainant was in his late teens, I think there is a countervailing consideration. If the complainant is lying about the whole course of sexual offending it would be quite simple to nominate an occasion when it began and invent some rudimentary circumstances. Mr Preston submitted, with reason, that the complainant was generally frank about the frailties of his memory.
I do not presently weigh up these countervailing arguments. I simply note that there is weight on both sides. There is other evidence to consider.
The complainant was not precise about when the offending started. There appeared to be some certainty that it started in late August. He said it had not started before the party at the accused’s place on 24 July 2004[21].
I’m pretty sure it started around the end of August, just after my birthday (22 August).[22]
[21] T74.
[22] T70.
The first entry in the diary suggesting a sexual encounter is 30 August, but the complainant said it might have happened before that. He could not remember[23]. He thought it was before the Waterfall Gully picnic on 6 September. He said it was a week or so before.
[23] T75.
In cross-examination the complainant was asked specifically whether he alleged any sexual offending before he was 17[24]. He said he could not be completely sure, but when questioned closely about that, he said he was not disputing that it did not start until after he was 17. His evidence, particularly about the diary note and the Waterfall Gully picnic, would suggest the offending started about a week after his 17th birthday.
[24] T144.
The complainant said the four diary notes suggesting intercourse with the accused do not represent the only occasions when sex took place. In examination-in-chief he said he made a note in his diary when sex occurred. He said he made the entries because he wanted to keep track of how many times that he and the accused had sex. He used a code made from the accused’s initials, but not always in the same order. He made four such entries – 30 August, 7, 21 and 27 September. In cross-examination it became apparent that the entries were almost meaningless. The complainant conceded he did not make the entries on the date in the diary. They were made by different pens from the other entries on the particular day. The complainant was never asked when he made the entries. The given reason for using the code, to avoid detection from someone such as his mother, became less plausible by the use of a different pen. In three cases the entries were in a red biro when the entries for the day were in blue. If his mother happened to look at the diary her attention might well be drawn to those entries.
The entries were not claimed to be exhaustive of the occasions when sex occurred. The entries did not coincide with any of the four counts on the Information. When questioned about how the sex could have occurred on the dates marked in the diary, the complainant conceded that, if the other entries for the give date were accurate, it would be unlikely that sex did take place then[25]. The complainant effectively conceded that the four entries he made in his diary were guesses[26].
[25] T121-126.
[26] T126.
There is also a slight degree of inconsistency in the complainant’s evidence of the type of intercourse that took place and where it happened. The complainant was clear the only form of intercourse was fellatio and that it was almost always the complainant performing fellatio on the accused. The complainant has consistently said in court[27] that the accused committed fellatio on the one occasion at the complainant’s house (count 4) but in examination-in-chief he said:
Basically we would suck each other’s penises. Mostly I gave him fellatio and on a couple of occasions he sucked my penis.[28]
[27] See later discussion of inconsistent witness statement.
[28] T75.
He said he thought the accused had given him fellatio more than once but he could not remember the details of any occasion apart from the one at his mother’s house. He said he was left with the impression that the accused did not like giving him fellatio and he himself did not like the accused doing so because it was painful[29].
[29] T130-131.
The complainant said that sex occurred in only three locations – at the school office, at the accused’s house and on one occasion at his own mother’s house. He said it occurred three or four times at school[30] and twice at the accused’s house, once in the office (count 3) and once in the bedroom (count 2)[31].
[30] T80.
[31] T82.
If this evidence is correct then there are only seven episodes. With four charged, that leaves only three uncharged incidents.
In her address Ms Powell submitted that in respect of three of the four charged occasions, another person was in a position to corroborate some aspect of the complainant’s account.
In respect of count 1, the alleged incident in the drama room office, the complainant said that the accused locked the office door while they had sex. During the incident [P], a fellow drama teacher who shared the office with the accused, knocked on the door and tried to open it. She called out to the accused who did not reply. She went away. When the accused and the complainant thought it was safe to do so the complainant left the room. If that is true, [P] might remember being locked out of her office. The prosecution called her to give evidence. She did not remember such an incident. In fact she went further. On one view of it she said it did not happen. I will shortly return to her evidence.
Count 2 is the alleged incident in the accused’s home office. No third party is involved in that count.
Count 3 is the alleged incident in the accused’s bedroom. The complainant says that after that incident, the accused had to go to pick up his then 13 year old daughter from [SF’s] place where she was being looked after. The accused denies that there was ever an occasion when he had to pick up his daughter from [SF’s] place where she was being looked after. When [SF] looked after her it was in their house. [SF] was therefore in a position to possibly remember an occasion when she was looking after the daughter and the accused had to come and pick her up. [SF] was called by the prosecution. She says she does not remember ever looking after the accused’s daughter at her place. She did look after the daughter but only at the Fox’s house, not her own house. In addition she is not sure that she looked after the daughter at all in 1984. She is a year older than the complainant and had left school at the end of 1983. She was at university in 1984.
In respect of count 4, the complainant says that while he and the accused were having sex in the front bedroom of his mother’s house, he saw his mother arrive home. The two quickly left via the front of the house. The complainant said he gave his mother a brief explanation for the accused’s presence saying that he had dropped him off. The accused spoke briefly to the mother and then left. The accused denies ever having spoken to the complainant’s mother at her house.
The prosecution called the complainant’s mother. She does not remember ever seeing the accused at her place. Ms Powell submitted that if the mother had seen the accused at her house, she might be likely to have remembered it for two reasons. First, she had felt that the accused had brushed off concerns she had expressed to him about her son staying out late often after play rehearsals. She thought the accused had spoken down to her. This was at a Parent/Teacher night which was noted in her diary as occurring on 16 July 1984. Second, she had said in a statement to the police that she had become suspicious about the complainant coming home late from rehearsals and associated the accused with this unusual behaviour. If the mother entertained these suspicions around July 1984, she would surely have noted and remembered the accused being at her house with her son. On this latter point I think that it may well be that it was only after the complainant told his mother what the accused had done to him that she came to harbour the suspicions about the accused being associated with her son coming home late from rehearsal.
Ms Powell’s submission that none of the possible corroborative witnesses in fact corroborates the complainant is plainly correct. The complainant’s evidence remains uncorroborated. The question then is whether the evidence of those three witnesses tends positively to damage the complainant’s evidence.
I deal with the witnesses in reverse order. I do not think that the complainant’s mother’s not recalling an occasion when she saw the accused at her place is particularly damaging to the complainant’s credit. He says he passed off the presence of the accused by some innocuous explanation to his mother. He says the accused spoke to his mother only briefly. The contact with the mother was therefore quite limited. It would not be surprising if, years later, the mother was not able to recall such an incident. I think that is so even if she felt slightly resentful that the accused had spoken down to her at the Parent Teacher night.
I do not think [SF’s] evidence particularly damages the complainant’s credit either. In the first place, the complainant may be mistaken as to the accused’s reason for his need to leave the house. It may not have been to collect his daughter from [SF’s] place at all. It may be that the daughter was at [SF’s] place although not being looked after.
[P’s] evidence may stand slightly differently. She struck me as an alert person who thought carefully about her evidence. She was not so dogmatic as to say that it was quite impossible that she was never locked out of her office. However, she said that she was rather territorial about her office. I took that to mean that if she thought she had been locked out of her office by someone else, not, say, accidentally by herself, she might, more readily than other people, note and remember such an event. I recite her evidence when being cross-examined on this topic.
QHas there ever been an occasion when you have found yourself locked out of either the drama centre itself or the drama teacher’s office.
ANo.
QWhen you said you would have your keys with you at all times and you said because you had your house keys and your car keys, by that did you mean that you would keep them all on the same key ring.
AYes, I do.
QWas it your habit to drive your car to Marion High School.
AYe, it was.
QAt all times.
AYes.
QSo if you had your car keys with you and you were at the school, that would mean that you would have the keys necessary to enter the drama centre and the drama centre office.
AYes.
QAnd I take it that if there had been an occasion when you had been locked out of the drama centre itself or the office, that would have been a matter of concern to you.
AWell it would’ve been unusual, so yes, I would’ve said something.
QYou would have raised something about it.
AYes, I would have.
QIs it the situation that you were quite proprietorial about your office.
AI’m very territorial about my classrooms and office.
QAnd you would have considered it highly inappropriate and unusual if you had not been able to gain access to it while you were at Marion High School.
AYes
QAnd that would’ve been regardless of whether it was school term time or whether you had been there towards the end of a school holiday period preparing for the next terms work.
AYes.
QTell me if you can answer this: if in fact it was a Friday before school was due to resume on a Monday, I take it that you would’ve been extremely annoyed to find yourself excluded from your office or from the area.
AWell, if I was going in for the purpose of preparing something, yes, I would’ve been.
QSo when you said you had no recollection of ever knocking at the door or calling out and asking if Malcolm was in there, are you really saying it didn’t happen; that didn’t happen.
AWell, it couldn’t have happened because if I had my keys with me I would’ve tried the door. If the door wasn’t working I would’ve been a little concerned about it, a little surprised.
QIt would have been the sort of thing, because of your territorial attitude to your office, that would have stuck in your mind.
AYes. (emphasis added)
Ms Powell criticises an aspect of the complainant’s evidence on the topic of the locked door. In examination-in-chief the complainant said that while he and the accused were inside the office, [P] knocked on the door of the office and called out to the accused asking if he were inside.
In cross-examination he said he was not sure whether [P] was knocking on the door of the office or an outer door of the complex. From the plan the doors do not appear to be a long way apart. Ms Powell put to the complainant that he said he was now uncertain about which door [P]was knocking on because he realised that if she was knocking on the inner office door, she must have been able to enter the outer door because one key opened both doors. Thus if she could get inside the outer door, why would she be unable to get inside the inner door? The accused and [P] both said that there was a key common to both doors. Neither could recollect there being any mechanism on the lock which would enable someone on the inside of the office door to prevent access by someone on the outside if they had an appropriate key.
It is of course possible that [P] has forgotten being locked out. She might have left the room for a short while and not taken her keys with her. She might have forgotten them. She might have gone away for a while to attend to something else after being locked out and come back when the accused had unlocked the door. She might have thought no more of it. These and other explanations might make it unremarkable that [P] might forget being locked out of her office. Nevertheless the prosecution bears the onus of proving its case beyond reasonable doubt. If [P] evidence leaves me in a reasonable doubt about the complainant’s truthfulness or reliability on count 1 then the accused is to be acquitted.
Ms Powell submitted that if count 1 fails, the prosecution case on other counts will be affected. I accept that, while all counts have to be considered separately, that does not prevent regard being had to the outcome of one count when considering the others. It is an aspect of cross-admissibility.
I will consider other aspects of the evidence.
There is some justification in Ms Powell’s submission that the complainant has exaggerated somewhat his account of what happened to him when reporting the offending to others. I have already mentioned that he said he had been sexually abused by [AP] for 18 months when his more detailed evidence makes it clear that it was more like 12 months.
It is part of the agreed facts that the complainant’s friend, [EJ], says that the complainant told him that the incidents with the accused occurred when he was 15. The complainant said he did not know whether that is what he told [EJ][32].
[32] T146.
It is agreed that the complainant’s friend [SK] said that in 2002 he told her that he had a relationship with the accused when he was 15 or 16. The complainant said he was not sure whether that is what he told her but would not deny he did[33].
[33] T147.
I conclude from the evidence of the complainant and [SF] that he told her that the accused had sex with him on the occasion he was photographed at the accused’s house in a bubble bath. The photograph was used in the program of a play that was put on at the school in 1983, the year before the alleged offending.
I conclude from the complainant’s evidence, and that of his mother, that he told her the accused had done the same thing to him sexually as [AP] had done. While I do not conclude he told his mother exactly what that sexual activity was, he said in court that the activity with [AP] involved anal intercourse and rape.
While the complainant did not actually deny these matters, he was not especially forthcoming about them. As I say, I think there is some justification in Ms Powell’s submission that, in his reports to these people, the complainant has exaggerated what happened to him in the sense that he was representing himself as younger than he was when he says he was sexually involved with the accused.
There are several further discrete topics.
The complainant drew a plan of the accused’s house and indicated where the accused was standing at the time intercourse took place in the bedroom. He also said that a window of the bedroom overlooked the driveway. I find he is mistaken about the location of that bedroom. He readily conceded he might be wrong. I accept the accused’s evidence that the bedroom is on the other side of the house and does not overlook the driveway at all. However the placing of the bedroom must simply be a mistake because the complainant had become perfectly familiar with the house having lived in it for five weeks while the accused and his family were overseas from the end of 1984 to the beginning of 1985. I do not think this mistake adversely affects his credit.
The complainant said that the accused was uncircumcised. It is an agreed fact that that is so. That appears to be esoteric knowledge. How could the complainant know that if he had not seen the accused’s genitals? Ms Powell says he could have guessed it. That is true, but to do so involves a considerable risk of fatal error. She suggested the complainant could have learnt the fact from some sort of discussion. That too is possible although no such opportunity was suggested by the accused. Of course the accused is not obliged to suggest an opportunity.
The complainant kept in very occasional contact with the accused after 1985. In March 2004 the two men met up in Adelaide at the complainant’s instigation. The complainant would have been 27 and the accused 49. The complainant was in Adelaide for the Festival of Arts that year. They met on 6 or 7 March at a coffee shop in Hindley Street. The complainant said he wanted to confront the accused with what had happened because he “thought it would help me to move beyond it”[34]. He said he told the accused that he wanted to know “Why what happened between us happened”[35]. He said the accused did not respond. “It was almost as though he hadn’t heard me”[36]. When pressed, he said the accused said that he just wanted him, the complainant, to get his Matric. The complainant said he challenged the accused by asking whether he thought that having sex with him would have helped. He said he told the accused that he had had years of depression, suicide attempts and drug, alcohol and gambling problems. The complainant said the accused replied that he had “thought about it a lot since then” and he went on to mention health problems of his own[37]. He said that when they finished their coffee the accused drove him to [SF’s] place where he was then staying. While they were sitting in the car outside her place the accused “basically asked me to forgive him”. The complainant said he told the accused that he was not sure he could do that[38]. He did not see the accused after that. (The accused said they briefly ran into each other at a theatrical performance in Sydney.)
[34] T103.
[35] T104.
[36] T104.
[37] T105.
[38] T105.
On 23 and 24 November 2000 there were exchanges of emails.
The accused said he remembered the meeting in Hindley Street. He remembered some of what the complainant says was said, but he explains it differently. He said he did not recall the complainant saying that he needed to know why what happened between them happened. He did say that the complainant said “what about us?”[39]. The accused said he did not know what the complainant was talking about.
[39] T249.
Ms Powell asked the accused whether the complainant had said that he wanted to know why they had had sex. The accused replied:
I can’t remember, but I would’ve– presumably would’ve thought he was talking about the incident at my house[40].
[40] T250.
There was this further exchange:
QHow did the conversation in respect of you having had sexual contact with him start and finish.
AWell, he mentioned that something had happened and I suppose I was embarrassed and ignored it. It was a very awkward thing.[41].
[41] T250.
Despite the passage of time it is somewhat surprising that the accused did not remember what the complainant had said on that sensitive topic. He agreed that he said that he just wanted the complainant to get is Matric. However he denied that he said that in the context of the complainant mentioning the sexual encounter. He was not asked what was the context in which it was mentioned. The accused denied that the complainant challenged him by asking how sex was going to help him with his Matric. He denied the complainant told him about his problems. He also denied that when he dropped the complainant off, he asked the complainant to forgive him[42].
[42] T277.
In cross-examination the accused did seem to concede that the complainant had asked him about what had gone on between them. This was his evidence:
QThe events as you’ve described them, these two encounters that you say occurred at your house, were not mentioned.
AI think they were alluded to about the fact that it happened. What was our relationship all about – our relationship all about type thing.
QTell us what was said.
AI can’t remember the actual words.
QTell us the gist of what was said
A“What did you think of our relationship?”
QWho said that.
ACH [sic].
QYes. What was your response.
AI thought he was alluding to the events that I’d been embarrassed about.
QWhat did you say.
ANothing.
QYou said nothing at all.
AIt was embarrassing.
That partial concession about the complainant asking about “their relationship” is notable. The complainant says that was what he particularly wanted to discuss with the accused. It is hard to see how the accused could describe the two sexual events initiated by the complainant as a relationship. While it is understandable that he might find discussing that topic slightly embarrassing, it would have been a simple matter to remind the complainant that his two advances were not welcome at the time, but he bore him no ill will. Ten years had elapsed.
My conclusion about the March 2004 evidence is that the complainant gives a more coherent and believable account than does the accused. There was an air of unreality about the accused’s account. Of course, ultimately, credibility does not turn on the preference of the evidence of the complainant over the accused.
The complainant agreed that he had not mentioned that sex had taken place in the accused’s home study when he gave his first statement to the police in June 2008. He did not mention that allegation until a proofing session on 9 October 2009. That allegation was then included in his statement sworn on 10 March 2010. He had made two addendum statements before the proofing session on 9 October 2009. On one view of it his credit suffers because he did not mention that incident when giving his original detailed statement. On another view, if he was telling a wholly false story, there would seem little point in adding another incident. I draw no conclusions from this topic.
I mention a separate topic that Ms Powell raised in cross-examination of the complainant[43] and referred to in her address[44]. It relates to an apparent contradiction between what appears in the complainant’s first statement to the police in June 2008 and his third statement in March 2010. The March 2010 statement was prepared from a proofing in October 2009 and a telephone statement made from his home in New South Wales to a police officer in Adelaide on 13 February 2010.
[43] T137-142.
[44] T309-310.
I set out the passage in the June 2008 statement. The complainant said:
I would estimate that I had to suck Malcolm’s penis on about 8 occasions. I know that he sucked my penis on two occasions but I can only give details of one occasion. These incidents happened at my home on about three occasions, Malcolm’s house on about three occasions and a couple of times in his office at school.
In my view the first two sentences, then the third in that passage, relate to two separate topics. The first two sentences relate to the type of fellatio that was performed and the number of times it was performed. On about eight occasions the complainant performed fellatio on the accused. On two occasions the accused performed fellatio on the complainant, although the complainant could only give details of one. In the preceding paragraph of the statement the complainant had described the occasion in his mother’s bedroom when the accused had performed fellatio on him.
The third sentence relates to the locations where sex took place and the number of occasions at each location – about three occasions each at the complainant’s house, and the accused’s house and a couple of times in the school office.
In his March 2010 statement the complainant sought to correct the above passage. He said:
On page 14, paragraph one of my first statement, which I provided on 28 June 2008 to Senior Constable Joy Gregory, it stated that there had been about three occasions when I sucked on Malcolm’s penis at my house. However, there was only one occasion when “this” happened, which is the time when my mother came home and nearly caught us in the act. I am not sure how the first statement nominated three occasions, and I wish to put the record straight now that I have spotted that mistake. Other than this one occasion, and the one occasion mentioned above, when we had sex in his office, at his house and the other one occasion mentioned in my initial statement, when we had sex in his bedroom, the rest would have been at school in his office there. (emphasis added)
Before referring to the complainant’s evidence on the topic, I interpret the correction without commenting at this stage about whether the correction accurately reflects what the complainant told the police. In my view the correcting passage seeks to correct only one aspect of the earlier statement without any conscious consideration of the other or others. It seeks first to correct the number of sexual episodes that took place at the complainant’s house. There were not three as suggested in the earlier statement. There was only one. The complainant seemed at pains to “put the record straight” on that topic; “that mistake”.
He goes on to say that in addition to the one occasion at his own house, there were two occasions in the accused’s house (one in the office and one in the bedroom) and “the rest” would have been in the school office. What I think the later statement fails to address is the significance of the word “this” in the second sentence. Following immediately upon a reference to the complainant performing fellatio on the accused, the word “this” might be referring to that form of fellatio. I do not think that is what the statement should be taken as reading.
In cross-examination the complainant was initially quite confused about the topic of the two statements. In the end he asserted that he had never meant to indicate in either statement that, 1) sexual activity occurred more than once at his own house, and 2) there was ever more than two occasions on which the accused had performed fellatio on him. The complainant described any contrary interpretation as a mistake. He was not asked whose mistake he thought it was. In other words he was not asked whether it was the fault of the statement taker.
From the terms of the second statement and from the text of the complainant’s evidence, I accept his explanation. While I have earlier said that I received little assistance from the demeanour of either the accused or the complainant in the witness box, I can say that at this stage of the proceedings, the complainant did appear genuinely confused. It was, I think, a rather subtle point, although reasonably and clearly put.
The Defence Case
I turn to the defence case. The accused gave evidence. He was not obliged to do so. On legal advice he did not answer police questions. No inference is drawn against him by reason of his exercising that right.
The defence case is that no sexual intercourse of any sort ever occurred. The only sexual contact that took place was at the complainant’s instigation. It occurred twice.
On 28 December 1984 the complainant visited the accused’s house. It was the eve of the Fox family’s trip overseas. The complainant was to look after the house while the accused and his family were away. The accused was the only person at home. He showed the complainant around the house. When the tour was concluded the complainant and the accused were in the front hallway. The accused was dressed in shorts and a shirt. Without warning the complainant put his hand inside the accused’s shorts and underpants and touched his genitals. The accused was shocked and moved backwards. Nothing was said by either of them. The accused said he was very surprised and embarrassed but not angry. He felt awkward.
In cross-examination he said he did not see the necessity to rebuke the complainant. His rejection of what he saw as more of a sexual advance than a sexual assault was itself a form of chastisement. The complainant left the house. The accused and his family went overseas the next day.
The accused was away until 4 February 1985. He returned to Adelaide on his own. His wife and daughter stopped over in Hong Kong for some shopping. He was thus away for five weeks. During that time he sent the complainant seven postcards[45] which the complainant kept. In addition the accused sent the complainant a telegram dated 11 January 1985 congratulating him on his Year 12 results[46]. That telegram was in response to a telephone call which the complainant had been given permission to make to the accused to let him know the exam results.
[45] Exhibit P11.
[46] Exhibit P12.
On the accused’s return, a friend picked him up from the Adelaide airport and drove him home. The friend dropped the accused off and left. The complainant was at the house. There was some short innocuous conversation, then, when the complainant was about to leave, he made another sexual advance on the accused. This time he hugged the accused, undid his belt very quickly, pulled down his trousers and underpants and masturbated him. The incident took less than half a minute. The accused said that he had an erection but he put a stop to the advance. He moved away and got dressed. The accused said of the incident:
I was slightly shocked, somewhat jetlagged of course, but he reminded me of the time before and he was either needy or he thought it was normal.
He was asked whether he said anything and he said no. When asked whether the complainant said anything, he said,
ANo, just cool, that is what you do, type stuff.
QAnd you did not say anything to him about not wanting him to do that again?
AI was just embarrassed really. It was very awkward.
QWhat happened after you did up your trousers and belt again?
AI can’t remember. I don’t think I took him anywhere, so he must have been picked up. It would have to be by car because the station is too far.
QDid you say anything about this at any other stage?
ANo, it was very awkward.[47]
[47] T244.
The accused explained why he did not say anything. He said:
I presumed that I was overwhelmed by the situation before I took control[48].
[48] T271.
It took him so much by surprise he was neither consenting nor not consenting.
Mr Preston submitted that the accused’s evidence of the two sexual advances by the complainant beggars belief. It is intrinsically implausible. The accused was forced to make up some story to explain how the complainant might know he was uncircumcised. The accused was 39 and someone the complainant respected. The complainant was only 17 and, until a few weeks earlier, had been the accused’s pupil. The story itself is unbelievable, Mr Preston submitted. Why would the accused remain silent in the face of such behaviour? Why twice? Why would the accused send him the correspondence from overseas? Why would he not ask the friend who gave him a lift from the airport to come into the house until the complainant left?
Ms Powell submitted that if the accused was telling lies, why would he complicate the story by saying there were two episodes? If the account is unusual, it has to be accepted that people behave sexually in all sorts of different ways. People’s reactions differ, generally, and particularly in sexual situations.
Discussion
I discerned nothing in the evidence of the witnesses, [P], [SF] and [SK] to suggest they were doing other than their best to be truthful and accurate about events many years ago. Unsurprisingly each experienced difficulty in remembering events. Each was frank about the difficulties. Each appeared careful and thoughtful about her answers. While each had the potential to corroborate some aspects of the complainant’s evidence, none did so. The prosecution called each witness in compliance with its obligation to call all available witnesses who can speak of relevant matters and whom it regards as witnesses of truth.
I have already touched on the question of demeanour as it relates to the principal protagonists, the complainant and the accused. While I make some observations about them as witnesses, I have found limited assistance in reaching a verdict from the demeanour of either in the witness box. They presented quite differently. The complainant was more expansive in his answers. He was more emotional. At times he was plainly upset. The accused was concise, almost curt at times. He appeared unemotional. These characteristics told me nothing of the truthfulness or reliability of either. I am helped more by considerations such as the inherent likelihood or unlikelihood of their evidence and how their evidence compares with other evidence of which I am satisfied.
Plainly, either the accused or the complainant is lying. The allegations and the denial of them do not admit of mistake. While discussion of the evidence inevitably involves the comparison of the complainant’s account with that of the accused, I bear in mind always that it is the prosecution which must prove its case. The accused bears no onus whatsoever. That is so even though I speak of the accused’s evidence being credible or otherwise, believable or otherwise.
In my view the complainant gave a credible account of sexual experiences with the accused. That is so notwithstanding that important criticisms can be made of his evidence. His account is reasonably detailed. Of course detail can be fabricated, but a lack of detail of such significant events would suggest implausibility. The acts themselves were largely identical with one discrete exception, the occasion when the accused performed fellatio on the complainant. The complainant explained why that was so. Three locations were identified. The complainant is correct in saying that the accused is uncircumcised. Despite the possibility of a lucky guess, that knowledge is consistent with the complainant’s account. It is significantly so. It would be an unusual disclosure for the accused to make in conversations to which the complainant was a party. The complainant could have heard of the fact by hearsay and risked the hearsay being correct. That seems to me unlikely. Of course if the accused’s account is a reasonable possibility then that would explain how the complainant knew.
Mr Preston submitted that the correspondence sent by the accused to the complainant suggests his sexual interest in him. The accused sent the complainant seven postcards while he was overseas between 29 December 1984 and 4 February 1985[49]. There are one or two passages that might be read as having a sexual subtext. Others are no more than consistent with there being a sexual interest. I certainly see some of them as inconsistent with being written by the accused if he were shocked and put off by the sexual advance he said the complainant made towards him on the eve of his departure overseas. There is nothing of the reserve you might expect of someone who wanted to avoid encouraging a second sexual advance. The accused said he sent the complainant the postcards so that the complainant did not feel alone or abandoned in the house[50]. That explanation is implausible.
[49] Exhibit P11.
[50] T241.
The second piece of correspondence was a telegram the accused sent the complainant on 11 January 1985 congratulating him on his Year 12 results. In it he said:
… congratulations pat pat stroke stroke hug hug you deserve it. Be happy Malcolm.
The accused explained the words as being:
The drama hug which is known in common usage between men who want to show affection to each other[51].
[51] T242.
I have no reason to reject that explanation, but it would hardly deter a repetition of the sexual advance made by the complainant in December.
The accused wrote to the complainant again on 6 March 1985[52], just over a month after the second sexual advance. The complainant was then living in Melbourne. It is a long chatty letter. In it the accused suggests to the complainant plans for a proposed weekend visit to Adelaide. The accused invited the complainant to stay over night at his house. He said the complainant could sleep in the lounge. He said:
My three girls go to Alice Springs on Sunday am the next day – I am free all Sunday …
[52] Exhibit P13.
The accused goes on to suggest the complainant take the train overnight on the Friday and go back overnight on the Sunday. In my view this invitation is completely inconsistent with the accused being the recipient of a second unwelcome sexual advance. While not necessarily indicative of a sexual interest standing alone, it is certainly consistent with such an interest. It is inconsistent with the shock that the accused professed after the two sexual advances.
Finally there are two exchanges of emails over 10 years later in November 2004. There is one exchange on 23 November 2004[53] and another on 30 November[54]. While the texts do not suggest a sexual interest, the accused does sign off “Love M” on each occasion. However the passing of 10 years could be said to remove any real impact by the sexual advances said to have been made by the complainant. I would accept that after so long a time, the accused would not feel any need to show any reserve to discourage any repetition. I do not think this later correspondence assists the prosecution. On the other hand, it does not help the defence.
[53] Exhibit P14.
[54] Exhibit P15.
I consider some aspects of the complainant’s evidence which tell against his credit. When closely examined the diary entries become almost meaningless. They do not purport to represent any of the charged counts. There is really no basis for concluding they represent uncharged acts. The other entries on those dates suggest it is unlikely that sexual contact did take place on the individual dates. It is not known when the entries were made. The reason given for using the code of the accused’s initials (ie to avoid drawing attention to them) is shown to be fallacious. Three of the entries were in red biro, something that would stand out against the blue biro of the rest of the day’s entries.
The entries do not help in identifying the first and last occasion of sexual contact. It remains the case that the complainant cannot identify when or how the first occasion occurred. As I have said I think that is perhaps more significant than the inability to identify the last occasion. On the other hand it would have been a simple matter to identify one of the charged acts as the first chronologically. The complainant did not do that. He said he was simply unable to remember the circumstances of the first occasion. Thus, while it seems surprising that the complainant is unable to remember how the first occasion came about, there is a degree of frankness about his inability to do so.
I have already referred to the complainant’s tendency to suggest to others that the intercourse took place when he was younger than he claims in court. He told [EJ] and [SK] that he was 15 or 16. He implied the same to [SF]. In cross-examination he initially left open the question of whether it began before he was 17. It was only when pressed that he agreed it was just after he turned 17. He suggested in court that the relationship with [AP] lasted 18 months, but his more detailed evidence makes it clear that it was no more than 12 months. There is a possibility he told his mother that the accused did the same to him as [AP] did although the evidence does not suggest he explained to his mother exactly what either man did to him.
The complainant did not deny these suggested exaggerations. While these exaggerations do not help his credit, they are, with one exception, not accounts to the police or evidence in court. The exception is the evidence about the length of the relationship with [AP]. The complainant was not cross-examined about that particular inconsistency.
Despite the criticisms that can legitimately be made about these exaggerations, I do not think that they so damage the complainant’s credit that his account of the acts of intercourse is less believable. There is a coherence about the evidence of the relationship which is not damaged by exaggerations of age made in out of court statements to friends.
I refer to the topic of the complainant’s consent to the sexual intercourse. In his examination-in-chief he made no suggestion that the sexual relationship with the accused was other than consensual. I appreciate that consent is not a defence to the charges, but it is not irrelevant to credit. Ms Powell’s question on a different topic led to the question of consent.
Ms Powell questioned the complainant about his preparedness to complain to police about both the relationship with the accused and with [JH]. The complainant had made entries in his 1984 diary about both. The complainant had said that he was sexually attracted to [JH] but not to the accused. He felt “conflicted” about reporting to police the sexual contacts with [JH][55]. Nevertheless he did so. Ms Powell’s questions thereafter relate to both men. The complainant agreed that he was not alleging that either man raped him[56]. He was then asked whether he agreed that both relationships were consensual. He said:
I would have to challenge that, because I remember very clearly Mr Fox’s hand being on the back of my head and his penis in my mouth and him pushing my head on to his penis until I was choking. That is what I remember and that’s what I was reporting, and that didn’t feel consensual to me.
[55] T143.
[56] T144.
He went on to say that he felt obligated to have sex with the accused. He said that having reported both men to the police, he later learnt that the authorities did not regard [JH] as having a student/teacher relationship with the complainant. I would describe the complainant’s evidence quoted above as his demurring about consent to intercourse with the accused. His references to “that did not feel consensual to me” and feeling “obligated” would not suggest a legal absence of consent. Rather, they suggest a resentment of the accused that appears elsewhere in his evidence.
I return to the suggested motive to lie. The defence suggestion is that the complainant really had two motives – one, his disappointment in the career in which the accused carelessly encouraged him, and two, resentment at the accused’s failure to give him more support when he disclosed the relationship with [AP]. I have already observed that the complainant did not deny that he felt let down by the accused not reporting the matter to someone else despite his begging the accused not to do so[57]. While it might be somewhat surprising that the complainant should feel aggrieved that the accused did not, in the circumstances, report the matter so someone else, it would not be surprising if he felt a distinct lack of support or understanding from the accused. I have already referred to the accused’s rather detached reaction to the disclosure. He did not feel qualified to offer any assistance. He thought it was an affair that the complainant “had got himself into”. He did not enquire how old [AP] was. He was not even sure if he saw anything inappropriate in what the complainant and [AP] were doing. I have already described this last view was curious. However, none of this detachment would be surprising if the accused saw the disclosure as being an opportunity for him to begin a sexual relationship of his own with the complainant.
[57] T163.
Ms Powell suggested directly to the complainant that there was a time in his life when he carried “a great deal of resentment for Fox”[58]. She suggested this was particularly so because the accused had encouraged him in acting without there being the ability which would enable him to benefit from the encouragement. The complainant effectively conceded this point. He said:
I doubted that encouragement because of what had happened, because I assumed, as anybody would, that, in fact, he had no interest in my wellbeing, and having been used as a sexual object by him, I doubted everything that came before that. That’s where my self-esteem and confident went[59].
[58] T165.
[59] T165.
I think there is force in Ms Powell’s suggestions that the complainant bore the accused some resentment for the reasons she put to him. I also accept that resentment might conceivably lead a complainant to tell lies about sexual abuse. I note that the complainant reported [JH] to the police although there is no suggestion he resented [JH] for any reason.
Despite accepting that resentment of the accused might be a motive for the complainant to lie, I do not find that it is a reasonable possibility in this case. If he was minded to make up false accusations he could have provided the details lacking in his account. He could easily have recounted the first and last incident. He could have avoided referring to the third parties, thus avoiding the possibility that they might not corroborate him. He could have portrayed the accused’s implied admissions to him in March 2004 in less diffident terms. He did demur about consent but he did so in fairly muted terms. In that context he spoke of the circumstances in which he performed fellatio on the accused. If that was a theme he wished to falsely emphasise then it is hard to see why he would speak of two occasions when the accused performed fellatio upon him.
While I found that the suggested motive for the complainant to lie did not lead him to lie, I remind myself that that does not necessarily mean that the complainant is telling the truth. There may be other unknown motives to lie.
I return to two other topics – the complainant’s not giving any detail about the first and last occasions on which offending took place and his evidence about the diary entries. I have already noted that I find it unusual that the complainant said he was unable to give any details of the first offending. I have already noted that the complainant’s evidence about the diary entries meant that they were virtually meaningless. After further consideration of those topics I conclude that the complainant’s credit is not damaged by them. As I have already indicated, it would have been a relatively easy matter to falsely assign details to a first and last occasion of offending. I do not think the complainant’s failure to do so tells against him. It would have been equally easy to falsely assert that the diary entries did represent charged acts. It is true that the making of the diary entries in the first place, and the suggestion in examination-in-chief that they indicated uncharged occasions of offending, represents a worrying aspect of the complainant’s behaviour. On the other hand his concessions in cross-examination impressed me as being frank. I think that after the event he has unwisely tried to identify occasions when sex took place but, when the unreliability of the entries was exposed, he conceded the point. I do not think that this topic significantly damages his credit. I am left with what I regard as a credible account by the complainant that the accused had a sexual relationship with him.
I turn to a consideration of the accused’s evidence. I do not accept the truth of his evidence of the complainant’s sexual advances. I do not think it is a reasonable possibility. There are a number of reasons for that finding. I bear in mind that the accused bears no onus of proof.
In relation to the first episode on 28 December, I find it unlikely in the extreme that the complainant, who was 17 at the time and had been the accused’s student for several years, would suddenly make so confronting a sexual advance. The accused said the complainant put his hand inside his underpants and touched his genitals. The complainant had no reason to think that the accused would find it acceptable. What makes the accused’s account all the more unlikely is that he said nothing at all during or after the episode. Of course the accused could easily have made up some reproof, but any reproof would make the later fond correspondence all the more inexplicable.
Despite claiming to be shocked by the incident the accused sent the complainant seven postcards and a telegram in the space of five weeks while he was overseas. The tone of the correspondence is friendly, even effusively so. As I have earlier noted a sexual subtext can be found in that correspondence. Certainly the correspondence is inconsistent with shock and rejection of the first sexual advance.
The second sexual advance is even more confronting than the first. On the accused’s account the complainant managed to undo his belt, pull down his trousers and underpants and masturbate him. The accused’s silence in the face this attack is even more remarkable. It is remarkable that the complainant should make another approach if he had been rejected the first time, although it must be said, the intervening correspondence might have led him to think the first approach was not all that unwelcome.
Having been shocked and surprised a second time by the complainant’s behaviour, the accused nevertheless writes him a long friendly letter a month later and invites him to stay overnight at his house. In my view this letter on 6 March 1985 is completely at odds with the alleged incident on 4 February. I find the accused’s correspondence with the complainant, both while he was overseas and again on 6 March, is completely consistent instead with the complainant’s account. Despite the muted terms of the correspondence, I think that the accused reveals a sexual interest in the complainant. While the sexual intercourse might have tailed off in late November, the accused’s sexual interest in the complainant had not.
In relation to the accused’s evidence Ms Powell asks pertinent questions:
Why, if he were lying, would the accused say that there were two sexual approaches by the complainant rather than one? Why would he make the story unnecessarily complicated by adding a second false incident?
I have no answer to those questions. However, my inability in that respect does not cause me to find the accused’s account a reasonable possibility, or, more pertinently, not to accept the complainant’s account. It is one of the unresolved questions that is sometimes left when considering questions of credit.
My rejection of the accused’s evidence does not necessarily lead to a finding of guilt. A finding of guilt depends on satisfaction beyond reasonable doubt of the complainant’s evidence on each ingredient of the charge then under consideration. I must consider each count separately. However, because some of the reasons for my arriving at findings of credit affect more than one count, I will speak generally first about the complainant’s allegations, then I will consider each count separately.
I am satisfied beyond reasonable doubt that the accused and the complainant had sexual intercourse consisting of fellatio on a number of occasions between late August 1984 (more specifically between 23 and 30 August) and late November 1984. During that time the complainant was aged 17. The accused was his drama teacher. I reach that conclusion because, when considering all the evidence in the trial, I am satisfied that the complainant was telling the truth about the sexual allegations and, despite legitimate criticisms of his evidence, he was generally reliable.
For the reasons I have already discussed, I reject the accused’s evidence about what occurred sexually between the two. I find that the accused’s correspondence with the complainant while he was overseas between December 1984 and February 1985 supports the complainant’s account of a sexual relationship. I make the same finding in respect of the March 1985 letter. The correspondence is inconsistent with the accused’s account and consistent with that of the complainant. The correspondence is evidence of the complainant’s sexual interest in the complainant. I find that the accused’s detachment from the complainant’s disclosure of the relationship with [AP] is also indicative of his sexual interest in the complainant. It might have been the beginning of the sexual interest. I find that the accused saw the complainant’s disclosure as more of a disclosure of his homosexuality than a disclosure of an inappropriate and illegal sexual relationship between the complainant and an older man. The complainant was 16 at the time. The complainant’s disclosure of his homosexuality caused the accused to think that he might start a sexual relationship with the complainant.
The finding that there was a sexual relationship between the accused and the complainant during the relevant period does not necessarily lead to a finding of guilt on the individual counts. It could be that the finding related only to uncharged acts and the evidence relating to the particular charged occasions is too unreliable to lead to satisfaction of guilt beyond reasonable doubt. The uncharged acts must be proved beyond reasonable doubt before they can be used to assist in proof of the accused’s sexual interest in the complainant. Proof of those facts can then be used when considering the charged acts.
I am satisfied that between late August and late November 1984 there were more than four occasions of sexual intercourse, consisting of fellatio, between the accused and the complainant. I am not able to find how many occasions there were.
I turn to the individual counts.
Count 1 relates to the complainant’s allegation of his performing fellatio on the accused in the accused’s office at the school drama centre. I accept the complainant’s evidence that intercourse took place between him and the accused on a number of occasions in the office. He said it was about 3 or 4 occasions. He said that on the occasion charged [P] tried to open the locked door of the office, or the outer door, and called out to the accused when she found herself locked out. [P] said that event “couldn’t have happened”. She would have remembered it if it had occurred.
Ms Powell submitted that in the face of that evidence, I could not be satisfied beyond reasonable doubt that count 1 is proved. Further, she submitted that if I had a doubt about count 1, that doubt would affect the other counts. While the counts have to be considered separately, there may be implications from the finding on one count which affect others. I acknowledge the logic of Ms Powell’s submissions.
However the logic also works the other way. If I were to be satisfied beyond reasonable doubt of say the other three counts, those findings might affect the finding on count one. Despite my favourable impression of [P’s] evidence, she may be mistaken in her recollection. I have already discussed how that might be so.
Having found the uncharged acts proved, and having found it proved that the accused had intercourse several times with the complainant in the office, it becomes more likely that [P] is mistaken. While I am presently recording my deliberations on count 1, I have made findings in respect of counts 2, 3 and 4. I have no reservations about the accused’s guilt on those counts. I will explain why shortly. My findings on the uncharged acts, particularly the acts in the office, combined with my findings on the other charged acts, remove the reservation and any reasonable doubt about the accused’s guilt in respect of count 1. While I am unable to find which door [P] was trying to enter, I find proved beyond reasonable doubt that the accused had intercourse with the complainant in the office as the complainant says he did. I am not able to identify a date on which the act occurred, beyond it being in the three months between late August and late November 1984. I find as a fact that the complainant consented to the act.
I move to count 2.
This is the count alleging the same sort of fellatio in the accused’s bedroom. The complainant said that this was the only occasion when intercourse took place in that bedroom. I accept the complainant’s evidence. I have no reasonable doubt about his account of what occurred on that occasion. His misdescription of the place of the bedroom in the house is plainly a mistake. He was familiar with the layout of the house having lived in it for five weeks. That mistake does not cause me to doubt the truth of his evidence of the sexual intercourse. Likewise I think that he has possibly made a mistake in saying that the accused said he had to leave to pick up his daughter from [SF’s] place. Alternatively, it is possible [SF] is mistaken in not remembering an occasion when the accused’s daughter was staying at her place and was picked up by him.
I refer to count 3. This is the allegation of the complainant performing fellatio on the accused in the accused’s home office. The complainant said that the intercourse took place twice in the accused’s house, once in the bedroom and once in the office. I accept the complainant’s evidence. I have no reasonable doubt about his account of this offending.
I refer finally to count 4. It is the complainant’s allegation that the accused performed fellatio on him in his, the complainant’s, mother’s, bedroom. Despite the complainant’s mother having no recollection of seeing the accused at her house, I accept the complainant’s evidence. I think that the complainant’s mother has forgotten having seen the accused. I have no reasonable doubt about the complainant’s evidence of intercourse on this occasion.
I find that the complainant consented to all acts of intercourse.
I am satisfied that the accused was the complainant’s teacher until 14 December 1984. That is an agreed fact. I am satisfied beyond reasonable doubt that the charged and uncharged acts of intercourse took place between 23 August and late November 1984.
Verdicts
Count 1 Unlawful sexual intercourse Guilty
Count 2 Unlawful sexual intercourse Guilty
Count 3 Unlawful sexual intercourse Guilty
Count 4 Unlawful sexual intercourse Guilty
0
4
2