R v H, A
[2019] SADC 169
•15 November 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, A
Criminal Trial by Judge Alone
[2019] SADC 169
Reasons for the Verdicts of Her Honour Judge Tracey
15 November 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
The accused is charged with two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act - offences alleged to have been committed by the accused against his cousin BB between 2002 and 2005 (count 2) and against BB’s friend, JJ between 2002 and 2005 (count 1).
Complainants were adults at the date of trial - the accused elected for trial by judge alone - cross admissibility of evidence - question of propensity of the accused – uncharged acts alleged to have been committed by the accused - offending alleged to have been committed against the complainants by the accused’s brother – inconsistencies between the complainants’ evidence and prior inconsistent statements discussed. Forensic disadvantage to the defendant.
Verdicts: Guilty of each count.
Criminal Law Consolidation Act, 1935 s 50(1), referred to.
Pfennig v The Queen (1995) 182 CLR 461; R v Makin (1893) 14 LR (NSW) 548; R v M, BJ (2011) 110 SASR 1; R v MJJ & CJN [2013] SASCFC 51; Hughes v The Queen [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; The Queen v Bauer [2018] HCA 40; McPhillamy v The Queen [2018] HCA 52; R v C, CA [2013] SASCFC 137; R v S, PC [2008] SASC 285; CGL v DPP [2010] VSCA 26; Velkoski v The Queen (2014) 45 VR 680; R v Cashiom (2013) SASCFC 14; R v Mas 118 SASCFC 122; R v Markuleski (2001) 52 NSWLR 82; R v B, P [2006] SASC 229; R v M (1994) 181 CLR 487; R v Livingstone [2011] SASCFC 283; Douglass v The Queen [2002] HCA 34, considered.
R v H, A
[2019] SADC 169Introduction
AH (the accused) is charged with two counts of maintaining an unlawful sexual relationship with a child. He pleaded not guilty to the charges and elected to be tried by judge alone.
It is alleged that the accused committed the subject offences against the complainant BB, who is the accused’s younger cousin, and the complainant JJ, who is BB’s friend.
BB was born on 15 February 1989 and JJ was born on 9 June 1988. The accused was born on 12 August 1984.
The charges are as follows:
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
AH between the 13th day of August 2002 and the 8th day of June 2005 at Paralowie, maintained an unlawful sexual relationship with JJ, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards him, namely:
(a) inserting his penis into JJ’s anus on more than one occasion;
(b) causing JJ to perform an act of fellatio upon him on more than one occasion; and
(c) performing an act of fellatio upon JJ on more than one occasion.
Second Count
Statement of Offence
Maintaining an unlawful sexual relationship with a child. (Ibid).
Particulars of Offence
AH between the 13th day of August 2002 and the 31st day of December 2005 at Edinburgh and Paralowie, maintained an unlawful sexual relationship with BB, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards him, namely:
(a) causing BB to touch his own penis;
(b) touching BB’s penis on more than one occasion; and
(c) causing BB to touch his penis.
Prosecution case
At the relevant times, the complainants lived in the same street and were good childhood friends. The accused and his older brother GH,[1] frequently socialised with the complainants.
[1] GH was born on 7 April 1982.
GH began to sexually offend against BB when BB was about six years old, and against JJ when he was about the age of seven or eight. The accused’s offending against BB and JJ is alleged to have commenced when the accused was about 11 years old. It is alleged that the accused's offending occurred on almost every occasion that he met up with the complainants.
The charged offending relates to acts of a sexual nature allegedly committed after the accused turned 18 years of age, that is, on 12 August 2002.
The offending occurred at the accused’s family home when his parents were not home or were nearby, or when other family members or friends were nearby. The nature of the alleged sexual acts escalated from touching, moving to fellatio and then to anal intercourse. The repetition of this behaviour, starting when the complainants were young, emboldened the accused to commit more serious offending, knowing it would not be met with detection by adults, and inured both complainants to the offending.
JJ’s evidence was that the accused offended against him and BB in each other’s presence. Later, an event in BB’s family caused contact between the complainants and the accused and GH to cease.
Charged offending
With respect to BB, the charged offending relates to offences that occurred:
·at the RAAF airbase swimming pool where the accused touched BB’s penis, had BB touch his own penis and the accused’s penis; and
·at the accused’s home in about 2004 where, in the context of GH forcing anal sex on BB on a pool table, the accused forced BB to touch the accused’s penis.
With respect to JJ, the charged offending relates to offences that occurred:
·from 2003 when JJ worked at Video Ezy with the accused. The offending relates to the accused taking JJ into the back room and making him have anal intercourse and causing JJ to perform fellatio upon the accused. On one occasion, the accused was grabbing JJ’s penis as he was stocking the shelves within the store and later, in the back room, the accused had anal sex with JJ. On another occasion when the accused and JJ are taking out the bins, each performed fellatio upon the other and they are interrupted by someone leaving the Woolworths nearby;
·during car trips on the way home from Video Ezy;
·when the accused was looking at child pornography and there was fellatio between them and further sexual activity;
·around Christmas when JJ was aged about 15 or 16. He and BB rode their bikes to the accused’s home and played Grand Theft Auto in the shed. Both the accused and GH performed fellatio on JJ and had anal intercourse with him. BB then became involved in sexual activity and JJ was made to go out to the back shed where he engaged in sexual acts with GH; and
·around Christmas time, when the accused pulled him into his bedroom, while adults were outside drinking and celebrating. BB was also present. Both complainants participated in acts of fellatio and anal intercourse with the accused.
Witnesses
The prosecution called the following witnesses:
·BB;
·JJ;
·HH (BB’s mother); and
·KK (BB’s sister).
The parties agreed to the tender of part of the statement given to police by AA, the uncle of BB, AH and GH.
The defence called the accused.
Agreed facts
The following facts were agreed between the parties:
Dates of birth
1. GH was born on 7 April 1982. He turned 18 on 7 April 2000.
2. AH was born on 12 August 1984. He turned 18 on 12 August 2002.
3. JJ was born on 9 June 1988.
4. BB was born on 15 February 1989.
5. BA was born on 29 December 1995.
Family Relationships
6. BB’s parents were separated in August 2004. BB was 15 years old at the time.
7. The accused’s parents were separated in 1999.
Addresses
8. BB and his family at Mendez Street, Paralowie until August 2004.
9.After that date HH stayed in that address until 2006. BB’s father moved to a unit in Salisbury East.
10.The accused and his family were living in Geelong in 1995. They moved to Adelaide at the end of 1997. They moved to Burton Road, Paralowie until 1999 when the accused’s parents separated.
11. The accused lived with his mother Young Boulevard, Paralowie from 1999.
12. GH lived with his father Fairbanks Drive, Paralowie from 1999.
Employment
13. The accused worked at Video Ezy from 2001 until 2005.
14. JJ was employed there in 2003.
Elements of the offences
The offence of maintaining an unlawful sexual relationship with a child contains five elements, each of which must be proved by the prosecution beyond reasonable doubt.
The elements are as follows:
(a) The accused was an adult, that is, a person of or above the age of 18 years at the relevant time.
(b) The complainant was a child during the relevant period. A child, for this offence is a person under the age of 17 years.
(c) During the relevant period, there was a relationship between the complainant and the accused. While this was not in issue in the trial, I am satisfied that there was a relationship between the accused and BB as they were cousins, and JJ was a family friend of the accused and they were in frequent contact.
(d) That two or more unlawful sexual acts occurred with or towards the complainant during the relevant period.
(e) There was maintenance of the unlawful sexual relationship.
While at trial there was no dispute in relation to the first, second and third elements of the offences, I have found that I cannot be satisfied beyond reasonable doubt that the accused was aged 18 or over at the time he said he was shown pornography by the accused.
The prosecution case is that the accused committed three types of sexual acts which fall within which three types of sexual offences under the law. That is, unlawful sexual intercourse, indecent assault and gross indecency.
All the acts particularised in relation to offences committed against JJ concern the offence of unlawful sexual intercourse. With respect to the charge concerning BB, the offences particularised as (a) and (c) concern acts of gross indecency, while (b) concerns the offence of indecent assault.
The elements of the three types of sexual offences which the accused is alleged to have committed are as follows:
Unlawful sexual intercourse
The prosecution must prove the following elements beyond reasonable doubt:
·the accused had sexual intercourse with JJ.
For the purposes of this case, sexual intercourse is an activity which consists of or involves penetration of a person’s anus by any part of the body of another person, or fellatio.
·JJ was under the age of 17 at the relevant time.
Indecent assault
The prosecution must prove the following elements beyond reasonable doubt:
·the accused intentionally assaulted BB.
·the assault was accompanied by or occurred in circumstances of indecency. The indecent circumstances must contain a sexual connotation.
·the application of force was unlawful.
Procuring a child to commit an act of gross indecency
The prosecution must prove the following elements beyond reasonable doubt:
·an act was performed by BB when BB was a child;
·the relevant act was grossly indecent;
·the accused incited or procured BB to commit the act; and
·the act was committed in the presence of the accused.
General directions
I direct myself as follows:
·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.
·The accused was not bound to give evidence and could have remained silent. I must assess his evidence and the weight to be attached to it in the same way in which I assess the evidence of the other witnesses whose evidence I have heard in this trial.
·The burden of proving each of the charges lies wholly on the prosecution and the accused is not obliged to prove a thing. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that count.
·At all times, it is for the prosecution to satisfy me that the relevant complainant is both an honest and a reliable witness beyond a reasonable doubt.
·If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
·I must assess each witness, including the accused, as to their truthfulness and their reliability and must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
·I must consider each of the counts separately on its own merits and the charges do not stand or fall together.
·The defence has not suggested a motive by either complainant to lie. The defence has no onus to do so. The fact that there is no evidence in this case of a motive to lie does not strengthen the prosecution case; it is neutral. Lies can be told for no apparent reason. Crucially, it is not for the accused to prove a motive for a complainant to lie. At all times, the prosecution bears the onus beyond reasonable doubt.
·Each complainant gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements nor allow them to influence the weight I give the evidence of the complainants.
·The forensic disadvantages faced by the accused must be taken into account in considering whether the prosecution has proved its case beyond reasonable doubt.
Discreditable conduct, cross admissibility and the evidence of GH
The Director filed a notice of the intention to adduce evidence of discreditable conduct pursuant to s 34P(4) of the Evidence Act (1929) regarding:
·The cross admissibility of the evidence of each complainant to prove that the accused had a sexual interest in adolescent male children and a willingness to act on that interest when the opportunity arose, by orchestrating opportunities for such acts, notwithstanding other persons were in the vicinity and/or there was a risk of detection. The use of the evidence is said to be permissible under s 34P(2)(b).
·Evidence of uncharged sexual acts committed by the accused against JJ prior to the charged offending to be used to prove that the accused had a sexual interest in adolescent male children and a willingness to act on that interest when the opportunity arose, including by orchestrating opportunities for such acts, notwithstanding other persons were in the vicinity and/or there was a risk of detection. The use of the evidence is said to be permissible under s 34P(2)(b).
·Evidence of uncharged sexual acts committed by the accused against BB prior to the charged offending to be used to prove the accused had a sexual interest in adolescent male children, and a willingness to act on that interest when the opportunity arose, including by orchestrating opportunities for such acts, notwithstanding other persons were in the vicinity and/or there is a risk of detection. The use of the evidence is said to be permissible under s 34P(2)(b).
By notices dated 17 October 2018 and 20 June 2019, the accused objected to the proposed discreditable conduct evidence on the basis that the evidence was of such a prejudicial nature that it outweighed its probative effect; that permissible and impermissible uses could not be separated; and, that it was of such a general propensity that it could not be used in a permissible manner. Further, the accused sought an order that evidence of sexual offences committed by GH, not in the accused’s presence, be excluded.
I dismissed the accused’s applications.
Uncharged acts
Pursuant to s 34P(2)(a) of the Evidence Act, where the prosecution relies on discreditable conduct evidence for a permissible non-propensity purpose, the evidence must have probative value substantially outweighing any prejudicial effect, and regard must be had to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.[2]
[2] Section 34P(3) Evidence Act 1929 (SA).
In relation to discreditable conduct evidence relied upon to show a particular propensity or disposition of an accused, the evidence must have both probative value substantially outweighing the prejudicial effect, and strong probative value having regard to the particular issue or issues arising at trial.[3]
[3] Section 34P(2)(b) Evidence Act 1929 (SA).
The prosecution characterised the accused’s offending as very bold and occurring on any opportunity that arose. His conduct demonstrated a willingness to act on his sexual interest when the opportunity arose; by orchestrating opportunities for such acts notwithstanding other persons were in the vicinity and/or there was a risk of detection.
The accused argued that there was merely a general propensity that was not enough to satisfy admission of the evidence.
Evidence of discreditable conduct is inadmissible if it proves nothing more than an accused has a general disposition to commit crime or crime of a particular kind.[4] However, propensity evidence may be relevant and admissible because of the light it throws on any of a number of issues in a case.[5]
[4] Pfennig v The Queen(1995) 182 CLR 461 per McHugh J at 512, citing R v Makin (1893) 14 LR (NSW) 548; [1894] AC 57.
[5] R v M, BJ (2011) 110 SASR 1 at [26].
In R v MJJ & CJN,[6] Kourakis CJ identified the process of evaluation the probative value of evidence as first, identification of the facts that are in issue in the case and secondly, an assessment of how the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact.
[6] [2013] SASCFC 51 at [19].
Pursuant to s 34S of the Evidence Act, evidence of discreditable conduct may not be excluded if the only grounds for excluding the evidence would be either that there is a reasonable explanation in relation to the evidence consistent with the accused’s innocence or that the evidence may be the result of collusion or concoction.
The uncharged acts concerning BB
The uncharged acts relating to BB were said to have occurred:
·when BB was around the age of 9, and the accused around 13, when the accused forced BB’s hands down the accused’s pants;
·at a Christmas or New Year party around 1997, when children were playing in a cubby house in the rear garden of the accused’s family home. A fight broke out between adults and BB fell through a window. The accused is alleged to have forced his hands down BB’s pants while he was with the accused in the cubby house;
·when the accused took BB to his bedroom approximately one month after he went on a fishing trip with GH, and the accused performed anal sex on BB.
Non-propensity purpose of the uncharged acts concerning BB
The prosecution argued that the evidence of the uncharged acts had a non‑propensity purpose in explaining why BB later acquiesced to the accused’s offending; why BB did not tell anyone about what was going on, and why the accused was so bold to have offended as alleged.
The charged offending against BB in the RAAF showers was said to be very bold and sometimes occurred in the presence of GH. In the absence of earlier narratives, this charged offending would, it was said, be rendered inexplicable.
Propensity purpose of the uncharged acts concerning BB
In relation to propensity purpose, the uncharged acts were, according to the prosecution, strongly probative of whether the charged offending occurred. They showed a strong propensity to offend when an opportunity arose, and an interest and a willingness to act upon it.
The uncharged acts concerning JJ
The uncharged acts relating to JJ, were said to have occurred:
·When JJ came to the accused’s house and asked to borrow the ‘Matrix’ movie where both AH and GH were present and JJ was invited ‘to do something’ with a friend.
·Giving GH oral sex and the accused performing anal intercourse on JJ.
Non-propensity purpose of the uncharged acts concerning JJ
With respect to non-propensity reasoning, the uncharged acts were said to be relevant as to why the accused was later emboldened to subject JJ to anal intercourse and fellatio at Video Ezy; why JJ acquiesced, and why it was that the accused was emboldened to offend against JJ in GH’s presence.
Propensity purpose of the uncharged acts concerning JJ
With respect to propensity, it was said the uncharged acts were relevant to show that the accused had a propensity to act on a sexual interest in boys in circumstances which were bold.
Non-propensity purpose of the uncharged acts
In my view, the evidence of the uncharged acts in relation to both complainants was admissible for the non-propensity purposes identified by the prosecution. The uncharged conduct has strong probative weight that in my view, outweighed any prejudicial effect on the accused.
I ruled that evidence of alleged discreditable conduct may be used under s 34P(2)(a) to explain on the prosecution case:
·why the accused felt confident enough to take opportunities to behave in such a way with the complainants, despite the presence of others or when there was a risk that others would become aware of his conduct;
·why the complainants made no complaint about the accused’s conduct.
Propensity purpose of the uncharged acts
In relation to the propensity purpose, s 34P(2)(b) requires me to be satisfied that the evidence sought to be led has strong probative value and if so, whether that substantially outweighs the prejudice to the accused.
The issue in this matter is whether the sexual acts alleged by the complainants occurred, and accordingly, their credibility and reliability is central to the case.
In Hughes v The Queen[7] the majority in the High Court noted that:
In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible. [citations omitted]
[7] [2017] HCA 20 per Kiefel CJ, Bell, Keane and Edelman JJ at [40].
Further, the majority said:[8]
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
[8] At [41].
The defence argued that the evidence to be led from JJ did not demonstrate risk taking behaviour in that it would be safe to assume that there was no one else home when the acts were alleged to have occurred and further, that they did not demonstrate orchestration by the accused.
In relation to the uncharged acts relating to BB, the defence noted that the first and second acts of discreditable conduct were of a slightly different nature, said to have occurred while others were present in the house, however without orchestration or planning by the accused. In relation to the third, the accused’s invitation to look at his quilt might be of some relevance however, there was nothing to suggest any other family members were home.
The defence argued that the first two uncharged acts alleged by BB, were said to have occurred when BB was seven or eight years of age,[9] that is, not an adolescent boy, and that the timing of the uncharged conduct in 1997 or 1998, with respect to both complainants, took place some years before the charged offending. I was referred to IMM v The Queen[10] where the trial judge had found that the accused running his hand up the complainant’s leg showed a sexual interest in the complainant.
[9] The prosecution submitted BB’s age was closer to 9 years at the relevant times.
[10] (2016) 257 CLR 300
In The Queen v Bauer[11] the High Court identified the limitation of the reasoning in IMM to its facts, that is:
…one which involved an uncharged act relevantly remote in time and of a significantly different order of gravity from the charged offending.
[11] [2018] HCA 40 at [55].
And further:
Thus, despite the apparent generality of the dicta in IMM, henceforth it should not be regarded as implying any departure from the majority opinions expressed in HML or, therefore, as contrary to the reasoning in JLS, MR, PCR, Velkoski or Gentry as to the high probative value which is ordinarily to be attributed to a complainant’s evidence of uncharged sexual acts. IMM should be understood as confined to the particular, relatively exceptional circumstances of that case.
While in McPhillamy v The Queen[12] the High Court held that a 10-year gap between certain other offending and the charged offence, could not support an accused’s tendency as making the charged offence more likely, the impugned evidence of earlier abuse, concerned offending that was committed against different complainants.
[12] [2018] HCA 52.
Here, the uncharged acts alleged by both BB and JJ, are not so remote in time and are not of a significantly different seriousness. At the invitation of the prosecution, I proceeded to deal with the discreditable conduct evidence on the basis that the propensity identified in this case concerned underage male children, rather than adolescent male children.
Having regard to the evidence in this case, the first identified uncharged act as it related to BB, was touching BB’s penis while the accused’s mother was at home. The second uncharged act was said to have occurred in a cubby house at the rear of the accused’s family home while other people were present at the home. The third uncharged act was said to have occurred in the doorway between the accused’s bedroom and the hallway in his family home, albeit at a time when no one was home.
In my view, offending in the family home clearly attracted some degree of risk even when other family members were not thought to be present. In relation to the uncharged acts alleged by JJ, clearly the alleged conduct was very bold. The first act was said to occur in the presence of the accused’s friend and the second, while in the presence of GH, occurred in the family home, in the accused’s parents’ bedroom.
The accused’s offending can readily and properly be described as opportunistic, but that is not to say that the accused had not orchestrated some of those opportunities. As the prosecution submitted, the ‘orchestration’ of opportunity to offend in the ways alleged, did not need to be particularly sophisticated or complex.
The uncharged acts are strongly probative of a sexual interest and a propensity to act on a sexual interest in young boys. The probative value outweighs the prejudice to the accused. I was satisfied that the permissible use could be kept separate from the impermissible use, that is, by not engaging in ‘bad person’ reasoning as discussed by the Chief Justice in R v C, CA.[13]
[13] [2013] SASCFC 137 at [76].
Cross admissibility
As to the cross admissibility between counts 1 and 2, the defence submitted the only common feature was alleged offending against young boys and some sort of general propensity is insufficient.[14]
[14] See R v S, PC [2008] SASC 285 and CGL v DPP [2010] VSCA 26.
With respect to BB, looking at the allegations regarding the incident concerning the pool table, apart from GH, who on the prosecution case was involved in the same type of activity, there is an absence of anyone else present. The same is said to generally apply to the RAAF incidents.
In relation to JJ, while the charged acts take place at Video Ezy, the defence argues that the prospect of being discovered in the circumstances were not great at all. Acts alleged to have occurred in the car on the way home from work, were not in anyone else’s presence, and as to the remaining offences committed against JJ, involving the accused in company with GH, again the basis relied upon is said to be missing. The only common feature is alleged offending against young boys, and whilst there is a degree of commonality, it is not sufficient to pass the test prescribed by parliament.
In Velkoski v The Queen[15] the following principle was identified by the Victorian Court of Appeal in determining whether tendency evidence is admissible:
The principle consistently applied in this court is that the evidence must possess sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct.
[15] (2014) 45 VR 680 at 682[3].
In Hughes[16] the majority in the High Court, in commenting on Velkovski, noted that:
Applying this principle, the Court of Appeal held that it had been open to the prosecution to adduce tendency evidence in respect of the counts which had the common feature of the accused encouraging the complainant to touch his, the accused's, penis, or exposing his penis to the complainant. The remaining counts, however, were held to have lacked any sufficiently similar feature to permit tendency reasoning. The convictions were set aside and a new trial was ordered.
[16] Ibid at 36.
Further, the majority went on to say:
The Velkoski analysis proceeds upon the assumption that, regardless of the fact in issue, the probative value of tendency evidence lies in the degree of similarity of "operative features" of the acts that prove the tendency. It is an analysis that treats tendency evidence as if it were confined to a tendency to perform a particular act. Depending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it. Velkoski is illustrative.
The expression of the accused's sexual interest in young children was not confined to soliciting them to touch his penis: he repeatedly touched one complainant's penis and he touched other complainants on their vaginas and bottoms. Confining the tendency evidence to counts charging an occasion on which he solicited one of the complainants to touch his penis did not give the tendency evidence its relative strength. There was no reason to find that the accused was more likely to act on his sexual interest in young children by soliciting one of the complainants to touch his penis than he was to sexually molest the complainant at the day-care centre in another way. Given that the issue in each case was the occurrence of the offence, proof of the tendencies which the prosecution identified had significant probative value.
Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
The prosecution urged me to find that it was the accused’s proclivity, however it was manifested, that is of strong probative value in this case, rather than the features and circumstances in which the proclivity itself manifests.
In Bauer[17] the High Court discussed cases where multiple complainants allege sexual offences:
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true.
Hughes illustrates the point. The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants. It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another. The issue was how much if any of each complainant's evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants. And the case was ultimately decided by majority on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence.
[17] Ibid at [58].
On the voir dire, I accepted that in relation to non-propensity uses, to make a proper assessment of the evidence, I would need to have regard to the offending against BB identified by JJ. I also found that there was strong probative force in the accused’s proclivity in relation to sexual offending against young boys. The offending alleged by both complainants had the common feature of demonstrating that the accused had a sexual interest in adolescent boys that he was prepared to act on. Offending alleged by BB occurred at the RAAF base in an open and assumedly busy area, and at the accused’s family home. The offending alleged by JJ took place within a retail business within a shopping centre and outside near bins presumably used by other tenants; in a motor vehicle and at the accused’s family home on occasion, while others were present at the home.
In my view, consistent with the conclusions reached with respect to the uncharged acts, the alleged offending with respect to both complainants could properly be described as opportunistic and carried out in circumstances that included those where there was a high risk of detection and this strong probative force outweighed prejudice to the accused. I dismissed the accused’s application.
Admissibility of acts committed by GH
Defence objected to the evidence of GH’s acts which were alleged to have occurred in the absence of the accused. The prosecution argued that the evidence was probative of whether the offending by GH happened, and that in the absence of earlier involvement with each complainant sexually, it would be implausible that GH would have become involved in later sexual offending alongside his brother.
The evidence, in the prosecution submission, gave an understanding of the progression of the sexual offending from a young age and how things got to the extraordinary point where both the accused and his brother were offending in each other’s company. Without the evidence of what GH was doing, it might have been thought that BB would have approached GH about what the accused was doing.
I was referred to the decision in R v Cashiom,[18] which concerned a father and son who were each offending against a female living at their address. Evidence of the father’s sexual abuse was held to be admissible in respect of the son’s sexual offending in that it explained why the offending by the son went undetected for such a long period of time; why the complainant did not complain to someone who you might think she would complain to (that is, the patriarch of the household); and why the son was emboldened to continue sexual offending.
[18] (2013) SASCFC 14.
In my view, the evidence concerning acts allegedly committed by GH in the absence of the accused, was relevant to understand the progression of the offending and to explain GH’s presence at times when the accused was alleged to have offended. I have reminded myself that the offending alleged against GH can only be used in those ways and GH’s conduct does not assist the prosecution with respect to my assessment of whether the elements of the offences charged against the accused have been proved beyond reasonable doubt.
The witnesses
The evidence of BB
BB said the accused and GH were his cousins on his mother’s side.
He was good friends with JJ from when they were aged five. JJ lived on the same street and they both attended the same primary school. After grade six, BB left that school and he and JJ did not have as much contact.[19]
[19] T 49.23.
Offending by GH in the absence of the accused
The accused and GH were living in Geelong when BB and his family visited in 1995, around the middle of the year. BB described an evening when the accused, GH and BB’s sisters were playing. They broke a lamp and were sent to bed early. BB was sleeping on a mattress on the floor of GH’s bedroom. GH put his hand down BB’s pants and started playing with his penis.[20] He recalled a game between the Adelaide Crows and Western Bulldogs was playing on television.[21]
[20] T 50.17.
[21] T 50.33.
BB said he had asked GH what he was doing and GH said not to worry about it. BB said he was confused at the time and did not understand what had happened. He never raised it with anyone because he was scared he would not be believed.[22]
[22] T 52.18.
BB said that the first time GH had anal sex with him was when he attended his Uncle’s wedding at Waterfall Gully in December 2001. He said all the children who were there went for a walk. GH and he went off separately and GH told him to pull down his pants. GH forced BB’s pants down, and put BB onto his stomach. GH then penetrated his anus until GH ejaculated.[23] BB said he had been upset and scared.
[23] T 53.1.
BB recalled that around Christmas/New Year 1997/1998, there was a house party at the accused’s parent’s home. It felt like there were a lot of people there. BB said he and GH were playing in a cubby-house at the back of the property and GH forced BB’s pants down, forced him to the ground and then tried to insert his penis into his anus.[24]
[24] T 55.8.
BB said that when he was aged around 13 or 14, he went fishing at Pt Adelaide with GH. GH and the accused were living with their father and his new partner at Fairbanks Drive. BB said he recalled shortly after this event, being aware GH’s car had been stolen. He went in GH’s car and another car load of friends came in a separate car. BB said that not long after they left home, GH put his hands down BB’s pants while driving. While they were fishing this behaviour continued. BB explained the offending occurred when GH’s mates would drive off to a new fishing spot and GH would wait in his car with him. When they finished for the day, BB said that he stood up and told GH he had enough and that he was ‘telling’ and jumped out of the car. GH’s mates had already gone home. BB said because he was young, didn't have a mobile phone, and had no way of getting home, he had no real choice other than get back in the car.[25]
[25] T 71.28.
BB recalled an occasion which he thought was in the early 2000’s when the accused’s father had a party at his home. The families were playing a PlayStation game called ‘Virtual Sex’ that people were joking around with. His parents had taken a taxi home. BB said that he decided to stay the night. He was sleeping on the floor of GH's bedroom. GH said for him to 'try this' and grabbed his head and tried to force his mouth around his penis.[26] BB said he refused and pushed away, and GH eventually gave up.
[26] T 70.6-18.
Uncharged acts
At the house party around Christmas/New Year of 1997/1998, when GH had tried to insert his penis into BB’s anus, BB recalled that earlier on the same evening he had been in the cubby house playing with the accused. The accused made him touch his penis by grabbing his arm and forcing it.[27] BB said he was ‘90% sure’ this had occurred before GH tried to have anal sex with him.
[27] T 59.35.
BB described the cubby house as constructed of timber with a window around the entry and the doorway facing the lawn. People at the party were scattered throughout the house and outside area. BB said that he remembered this night because he was ushered inside when a fight broke out between adults at the party, and he fell through a window.
BB said he did not tell anyone about the incidents with the accused and GH because he was scared and young and feared not being believed.[28]
[28] T 61.2.
BB said that he often played PlayStation at the accused’s home.
On an occasion in 1998 at the end of year school holidays, he rode his bike to the accused’s address. The day stood out to him because he believed a match between Martina Hingis and one of the Williams sisters was on television at the time and he is interested in sports.[29] He thought that the accused’s parents were home. The accused suggested they play PlayStation and they went to the accused’s bedroom where the accused forced BB’s hand down the accused’s pants to play with his penis.[30]
[29] T 61.34.
[30] T 62.1.
When he asked the accused what he was doing, the accused told him not to worry about it. BB said he continued to play PlayStation for a little bit and then left. He said he did not know what to do or how to act. BB said: ‘It happened on a regular occurrence when I would see both my cousins [the accused] and [GH] that it's very hard to lay out exactly what happened when’.[31]
[31] T 64.10.
BB said he would visit the accused and GH a couple of times per month and ‘it’ would happen on every occasion that he could remember.
He said that the accused’s offending changed over time. He recalled an occasion when he was around 11 or 12 years old, before he went through his ‘growth spurt’ at 13 or 14, having ridden to visit the accused and the accused was excited about getting a new bed quilt.[32] The accused told him to come look in his bedroom and once he had shown BB the black, orange and white quilt, the accused physically forced BB’s pants down, forced him onto his stomach and penetrated him until the accused ejaculated.[33] BB said the accused forced him onto the floor within minutes and they were both facing the hallway. The accused told BB to be quiet. BB said that what the accused did was painful and he felt a wet sensation around his anus afterwards. He said the accused got up and acted like nothing had happened. BB said he stayed for a little bit because he was scared.
[32] T 66.38.
[33] T 67.5.
BB described an occasion when he had gone to the accused’s father’s address to play video games. The video game and a pool table were set up in a room out the back which GH would use when he was staying there. Initially, only he and GH were present. BB said that once again GH forced BB’s pants down and then put him up against the pool table and was trying to insert his penis into BB’s anus when the accused walked in. GH stopped and left the room with the accused. They both then came back in ‘like everything was normal.’[34]
[34] T 74.8.
BB said: ‘that from that it happened that regularly I couldn’t, the next occasion I couldn’t tell you’.
Charged incidents
BB said probably the next specific occasion he could remember was around summer 2003/2004 when he visited the RAAF Base in Edinburgh, where he and his two sisters, together with the accused and GH would go to swim.[35]
[35] T 76.23-29.
The accused and GH had access to the pool because their father was in the Army and either the accused or GH needed to be there to sign others in. They went to the pool a few times each week over a couple of summers.[36]
[36] T 78.3.
BB said that anyone using the pool had to shower first. Both GH and the accused would put their hands down his pants or board shorts and play with his penis and force him to touch their penises, while showering before and after being in the pool.[37] The showers were open and this happened ‘virtually every time they were there’.[38] Sometimes it would happen in the showers and sometimes when they were getting changed. If he moved away, the accused would grab his arm and make him touch the accused’s erect penis.[39] He could not recall the accused getting him to do anything else.[40]
[37] T 78.12.
[38] T 78.32.
[39] T 79.1.
[40] T 79.20
GH was not present on all occasions. He said he thought that GH and the accused were both present for at least half of the occasions.[41] GH and the accused continued to touch his penis and have him touch theirs at the pool, right up to around 2004, 2005.[42]
[41] T 79.25.
[42] T 80.18.
BB said that not long after the incident with GH touching him while he was against the pool table, he recalled a similar incident occurring with the accused. BB was visiting the accused’s father’s address. Only the accused was there. He went into the games room and the accused used force to hold him to the pool table bent over, and tried to insert his penis.[43]
[43] T 79.38.
BB said that the abuse by the accused occurred up until around 2005, after which, he ceased contact with the accused and GH because of a decision his parents made for there to be no further contact.
BB said he did not have a precise memory of what occurred right up to when the abuse came to an end. He said it happened regularly and some of his memory was ‘a bit of a shambles’.[44] It would happen two or three times a month.
[44] T 80.37.
BB said he could not recall anyone else being present, during the offending other than the accused and GH.[45]
Contact with JJ
[45] T 81.19.
BB said that he did not have as much contact with JJ when they went to different schools and JJ’s parents had separated.[46] They still stayed family friends but were not as close. He recalled seeing JJ with GH and the accused, and JJ at the accused’s house visiting or playing PlayStation.[47]
[46] T 81.32.
[47] T 82.3.
He and JJ have not spoken in relation to their evidence and the last time they saw each other was at JJ’s 30th birthday last June. They mostly see each other on family occasions.
Cross-examination
In cross-examination, BB agreed that in his statement to police, he had referred to other children going on the walk at Waterfall Gully.[48]
[48] T 89.24.
He agreed he had told police in June 2009, that when he had his growth spurt, it became easier to keep them away from the accused and the sexual abuse started to become less frequent, as in only every now and then, and not every weekend or second weekend. BB said that was why he had given evidence that it would happen two or three times a month, and not every weekend.
BB said the incidents caused him to be scared, uncomfortable and embarrassed, but that notwithstanding that, he would continue going to the accused’s house.
He said:
So obviously being young, it's one of them things that we were such close cousins, obviously the parents knew this, and so when you are invited round, when one is young, I stated fear of not being believed if you told someone, so being young you kind of just continue doing what you are doing and then incidents happen and, you know, you don't want to be questioned by your parents 'Why don't you want to go visit them anymore?' because you are scared of telling them the story when you are so young.[49]
[49] T 91.16.
BB agreed that by his mid-teens he was not a little boy and had gone through his growth spurt. He agreed that he continued to go back to the accused’s house over a 10-year period.
BB conceded that he had an imperfect memory relating to the time frame of the incidents, but not of the incidents happening.[50]
[50] T 94.24.
BB agreed he had spoken to police in 2006 when he was 16 or 17 years old, but that he did not tell the police what had happened to him until later.[51]
[51] T 92.6.
BB agreed he was alone with GH at the time of the incident he had described occurring in Geelong or on the fishing trip.
He agreed that when the Martina Hingis game was on television it was the end of school in 97/98, and he would have been 8 or 9 years old. BB said he thought the video they were playing was the first version of Grand Theft Auto.
He accepted he had not acted on the threat he made to GH at the end of the fishing trip that he would tell someone about the abuse.[52]
[52] T 92.20.
With respect to the accused’s bed quilt, BB said ‘Well, knowing [the accused] for as long as I had, he was the type to get excited over such little things and, yeah, like I said he, as soon as I got there he was pretty eager to show me this new bed quilt.’[53] He said he could picture the quilt and was 100% sure it was a quilt cover.
[53] T 95.12.
He agreed that in 2009, he had said to police: ‘… I think maybe it was a new quilt or something,’ but that thinking about the matter he could now picture the quilt cover. He accepted he was saying his memory has gotten better with time. He denied the incident never occurred.[54]
[54] T 96.14.
BB agreed that when the adults were playing the game ‘Virtual Sex’, kids were running around and occasionally watching.[55] He could not say whether the accused was present at the time.
[55] T 96.28-34.
BB said that sometimes the RAAF pool would be busy, while at other times there would not be many people there. He could not say whether a lifeguard was present. He described a brick wall that separated viewing from the sitting area into the actual showers.[56] He agreed there were open showers and change room. The only door was on the toilet.
[56] T 87.32.
He denied the accused had never been present when GH was sexually abusing him.[57]
[57] T 97.26.
BB accepted that he had told police that JJ had told him that nothing could be done about JJ’s complaint of abuse until BB came forward.[58] He said that since this matter has been before the police, he and JJ have not spoken about the matter.
[58] T 98.15.
BB said he did not recall attending the police station with JJ. He agreed he had listened to the audio recording of JJ’s police interview in 2008 and identified his voice, but had no recall of having attended the interview or of the interview itself.[59]
[59] T 98.35.
He said: ‘I’ve listened to a voice recording and I admit it sounds like me in in this recording, but like I said to this day I do not recall that interview, don’t recall nothing regarding any of that time.’ BB accepted that the interview proceeded for more than one hour and JJ had talked about horrific incidents that he said happened at the hands of BB’s cousin, but that he had no recollection of that at all.
He denied only coming forward to help JJ out because the police would not do anything without him.
In re-examination, BB said he had spoken to police in 2006 regarding matters that involved his brother, his cousin and a couple of their friends.[60] He spoke to police about his own abuse later.
[60] T 100.21.
The evidence of JJ
JJ said his family had lived one house over from BB’s family. He and BB went to primary school together and he spent a good deal of time at BB’s house.[61] They went to separate high schools.
[61] T 104.4.
He said he had met the accused and GH when they came from Geelong for Easter and were staying at BB’s house in a caravan. He was about five or six years old. He remembered playing the video game ‘Toys’ and that he had since googled the release date, which was, he said, was how he placed the timing of the event.[62]
[62] T 105.2.
Offending by GH in the absence of the accused
JJ said that the first time anything happened was when GH ‘had taken him and BB into the caravan and asked them to drop their pants’.[63] They did not do what was asked at first and then GH dropped his pants, showing them his penis and said that it was ‘okay’. When they went to leave, GH locked the door and said he was going to tell their parents they were doing ‘naughty stuff.’[64] JJ thought GH was about 13 or 14.[65]
[63] T 106.8.
[64] T 106.8.
[65] T 107.7.
He felt scared and he and BB ended up dropping their pants. GH played with their penises, getting them to do the same to him.[66] He was scared and disgusted because he felt like he was doing something wrong.[67]
[66] T 107.21.
[67] T 108.33.
They heard the front door slam and thought someone was coming. GH would check the windows each time when someone would knock on the door and they quickly pulled up their pants. He recalled an adult at the door. GH opened it and they went out. He remembered that night he was crying under his bed and kept his parents up. They did not know what it was about.[68] He did not tell them about what happened because he thought he would be in trouble.
[68] T 109.22.
The next day GH took him and BB into BB’s sister’s room to show them the ‘Toys’ video game.[69]
[69] T 110.31.
JJ said that ‘one of us was playing the game and then GH had the blanket sort of over us and, yeah, started playing with our penises on top of our clothes’.[70]
[70] T 111.2.
GH pulled his pants down first. JJ said ‘We got up to take our pants down and went back and sat on the bed. Our pants were down. This time after getting up to pull our pants down, we sat back onto the bed, our pants were down to our ankles and we were laying on the bed instead of sitting down’.[71]
[71] T 113.16.
He said GH was playing with their penises and making them touch his. He used a rubbing motion. He said he didn’t know what to do. He felt upset. They were taking turns playing the video game and touching GH’s penis.[72]
[72] T 113.37.
The accused and BB’s sister KK, came in and caught them with their pants down. KK said they were going to be in trouble and would tell their parents.[73] GH told them they would not get into trouble, kept the door open, and went on playing video games.
[73] T 114.22.
JJ said that weekend, the children were putting on a family play for their parents with BB, GH and himself in one group and the other children in another. They went into the laundry to practice their play. The doors were closed.
JJ said ‘…GH had told us to pull our pants down. He asked me to give BB a head job, I didn't actually do that, but he was giving it to BB and vice versa, BB to him… Once again, we could keep hearing people so it was like short bits of time it was happening…’.[74]
[74] T 116.28-35.
The other group put on a play but his group did not because they had not rehearsed anything.
JJ said the next occasion he remembered when someone did something that made him feel uncomfortable, was when he and BB had gone around to the accused’s house and were playing cops and robbers. JJ said he could not remember what happened, but that it happened in the cubby.
JJ recalled times where BB’s grandfather would babysit him and BB at BB’s house.[75] This was before his parent’s separated and when he would have been about eleven.[76]
[75] T 145.26; T 146.4.
[76] T 146.7; T 146.11.
He recalled a time when he stayed over and there were mattresses laid out in the lounge room.[77] GH came over to supervise as well.[78] He recalled BB’s younger brother, BA, who was about 6 years younger than himself, sitting on GH’s naked erect penis on the mattress and being annually penetrated by GH.[79] JJ said the only other sexual thing he could remember from that incident is that he and BB were performing oral sex on each other.[80]
[77] T 146.8-9.
[78] T 146.12.
[79] T 146.25-T 147.2.
[80] T 147.31-32.
Uncharged acts
JJ said when he got older, he started remembering ‘a lot more stuff’ that was happening.[81] He said, ‘I went to borrow a movie I think it was, I'm not too sure. I used to borrow movies frequently from them and yeah, [the accused] had told me that he had found out about what I was doing with GH and he said it would also be all right if I do it with him’.[82] The accused was, he said, working at Video Ezy at the time and had access to a lot of movies. It was roughly at a time when JJ’s parents split up towards the end of year seven at school.
[81] T 118.34.
[82] T 118.38-T 119.6.
He lived with his father for a few months before moving with his mother. He was living with his mother when he went to borrow a movie. The accused, GH and GH’s friend were there. They told him this friend thought JJ was ‘hot’ and asked him if he thought the friend was ‘hot’. They asked JJ if he would ‘do anything’ with the friend. JJ said he would not.[83]
[83] T 119.27.
The accused told JJ to follow him and took him into the accused’s mother’s room. The accused started touching his penis and they gave each other oral sex and then the accused told him to wait and returned with GH. GH started giving JJ oral sex and then asked JJ if he would like ‘come’. JJ said ‘yes’ because he had no idea what it was.[84] That was the first time GH ejaculated in his mouth and JJ spat it out because it was ‘awful’.
[84] T 121.1.
JJ described the first time he was anally penetrated by the accused. He was about 14 years old and had gone to borrow a board game, which used a VHS. It happened at a time before he had started working at Video Ezy, but after his parents broke up.
He said, ‘He took me to the back room, where I got the board game started, again he was touching my clothes, on the top of my clothes, rubbing it, caressing my penis. It would end up giving each other head jobs and then he told me that he was gonna do me anally, I didn't really know what he meant by that, but he took me into the hallway between his room and [his mother’s] room and he got on top, I remember him trying to put it into me. It hurt, I told him 'No' and he was, just said it would be okay, not to stress and then, yeah.’[85]
[85] T 122.33-T 123.4.
JJ said he was on his stomach on the carpet. Afterwards, the accused asked him to do the same to him, but he was not aroused because he was in pain. They pulled up their pants and the accused gave him the game and JJ left. Later when he went to the toilet, there was blood on the toilet paper.[86]
[86] T 123.27.
JJ said he remembered another time where he went to get a movie. GH was lying flat on the bed and he was giving GH oral sex and the accused was penetrating him anally on the floor from behind.[87] GH ejaculated in his mouth again and he spat it out on the floor.
[87] T 124.14.
He was about 14 years old at the time, in year 9, before he began working at Video Ezy.
Charged offending
JJ recalled an occasion after the period where he worked at Video Ezy, when he and BB went to the accused’s father’s house. He was on his ‘L’s which he got on his 16th birthday.[88] He and BB went there to play Grand Theft Auto. The accused, GH and the same friend who was there on the previous occasion, were present.[89]
[88] T 128.10.
[89] T 128.24.
They were in the garage, sitting playing the game through the television. The friend had gone for a drive. The accused took him into the kitchen to get a drink and BB stayed with GH. The accused pulled his pants down and they gave each other oral sex.[90]
[90] T 129.20.
BB came into the kitchen from the garage and JJ went out to the garage to GH. He did not see what happened with BB and the accused.[91] JJ said he went to the garage and sat on the couch with GH and they ‘did the same, hand jobs and head jobs’.[92]
[91] T 130.4.
[92] T 130.9.
JJ recalled an occasion where the accused showed him pictures of gay pornography.[93] He recalled one picture of a male anally penetrating a young baby’s anus.[94] He said that would have been at the house to ‘borrow a movie or something’ and that when he arrived the accused said that he wanted to show him something.[95] They went into the room and the accused started showing him the images.[96] The accused asked him if he was aroused and JJ said that he was, and went along with it.[97] The accused was playing with his penis while he was shown the pictures.[98] JJ performed oral sex on the accused, who asked him if he ‘swallowed’.[99] JJ said that he did not know what this meant at the time but said he did and the accused ejaculated in his mouth.[100] JJ spat out the ejaculate onto the floor and recalled the accused going into the bathroom across from his mother’s room and cleaning up it up.[101] The accused then masturbated JJ and gave him oral sex until JJ ejaculated onto the floor.[102] The accused made the comment ‘that’s a lot’ and proceeded to clean it up.[103] JJ said he believed this incident was before Video Ezy, so he would have been about 14.[104]
[93] T 131.26-32.
[94] T 131.31-32.
[95] T 132.3-6.
[96] T 132.6-8.
[97] T 132.10.
[98] T 132.19.
[99] T 132.20-21.
[100] T 132.21-22.
[101] T 132.32-36.
[102] T 133.5-6.
[103] T 133.9-14.
[104] T 132.14
JJ’s mother and the accused arranged for JJ to work at Video Ezy where the accused was working.[105] JJ said he worked there for only maybe three months, as he was fired for not attending his shifts.[106] He said he did not attend shifts as he ‘knew what was going to happen’.[107]
[105] T 133.31-32.
[106] T 133.37.
[107] T 133.38.
JJ said that during the day there would be three staff members rostered on but at closing time there would only be two staff members on duty.[108] When it was just the accused and himself in the store, on most shifts, the accused would come up and grope his penis and ask if he liked it.[109] JJ said he would just smile and go along with it.[110]
[108] T 134.5-7.
[109] T 134.9-12.
[110] T 134.17.
The accused had told him to ‘come here’ and led him into the staff room and closed the door. The accused took him into the back room when the store was still open. The accused told him ‘We should give each other hand jobs and give each other head jobs’. JJ said the accused would also put him on his stomach in the room, and anally penetrated him. He said he remembered the accused ejaculating into the air on that occasion.[111] Afterwards they got dressed and returned to work.[112] This incident occurred closer to the end of his time at Video Ezy.
[111] T 134.19.
[112] T 136.8.
JJ said that the staff room had windows so that you could see anyone enter the store and that there were cameras in the room capturing footage of the store.[113]
[113] T 135.5-11.
JJ said that closer to the beginning of his time at Video Ezy, the accused showed him where the rubbish was dumped.[114] The accused had led him through the staff room exit, down to the back of an alleyway behind Woolworths.[115] Together they emptied the bins and then the accused fondled him over his clothes.[116] JJ said there were two incidents when this happened, ‘so it was hard to determine’.
[114] T 136.26-27.
[115] T 136.27-30.
[116] T 136.30-31.
On another occasion, at about five or six pm, which he said was usually peak time at the store, he and the accused took out rubbish from the store.[117] They took a different route to get to the bins.[118] Once there, they pulled their pants down slightly and performed oral sex on each other.[119] Neither ejaculated as they had to be quick and they returned to work.[120]
[117] T 137.6-7.
[118] T 136.35-37.
[119] T 137.22-24.
[120] T 137.37.
JJ said that on both occasions there was someone else on the shift with them.
The accused would drive him home on shifts when they closed the store together.[121]
[121] T 138.13-14.
JJ recalled an occasion when it was raining and the accused had told JJ’s mother that he could give JJ a lift home.[122] When driving home, the accused said he was going to pull over and turned right down Mullen Street (identified on Exhibit P6).[123] He recalled they had been wearing their blue Video Ezy shirts and black dress pants.[124] They each unzipped and pulled down their own trousers so that their penises were exposed.[125] They gave each other oral sex.[126] The incident ended as it was getting late and he needed to be dropped home.[127]
[122] T 138.24-25.
[123] T 138.27; T 139.25.
[124] T 139.6-7.
[125] T 139.8-15.
[126] T 138.33-34.
[127] T 140.3-4.
JJ gave evidence that the ‘same scenario’ occurred, the accused was again dropping him home after closing the store together.[128] The accused told him that he was going to pull over.[129] JJ recalled pulling over on Tobin Way which is a dead end that leads onto a park.[130]
[128] T 140.8-9.
[129] T 140.9.
[130] T 140.12-15.
JJ said the accused had used a polaroid camera to photograph him with his pants down with an erect penis.[131] The photograph was taken in the accused’s bedroom. He would have been about 14 years of age as it was before he started working at Video Ezy.[132]
[131] T 141.19-26.
[132] T 141.13-15.
He had forgotten about the photograph until he went to the accused’s house to borrow a movie and the accused asked him if he wanted to ‘do stuff’, to which he replied no.[133] The accused then offered him $20 to ‘do stuff’, but he still declined.[134] The accused then showed him the polaroid photo and said that he was going to show people at his school and at Hungry Jacks (his then workplace) and tell them that he was gay.[135] He said he was scared because he did not consider himself gay, and because he was fearful that he would be beaten up at school for it.[136]
[133] T 141.32-35.
[134] T 141.36-37.
[135] T 141.38-T 142.5.
[136] T 142.7-9.
JJ said that he would have been about 15 or 16 when the accused showed him the photograph.[137] After he saw where the accused had taken the photograph from, he later asked the accused if he could borrow a movie, and was given the accused’s house keys. JJ said he went into the house and destroyed the photograph, following which he received an abusive message from the accused.[138]
[137] T 143.27.
[138] T 143.29-33.
JJ said that after his time at Video Ezy, he received many phone calls and text messages from the accused.[139] He had also received text messages from GH.[140] The text messages from the accused were generally asking if they could catch up or see each other.[141]
[139] T 142.18-19; T 142.28.
[140] T 142.29-32.
[141] T 143.2-3.
JJ said that the last time he recalled something happening was either the time with the accused or GH (the Grand Theft Auto incident) or another time at Christmas.[142]
[142] P 144.3.
JJ recalled a time when he was on his learner’s permit and around 16 years old, when he drove his mother’s car to the accused’s house for Christmas drinks.[143]
[143] T 144.8-9; T 144.19.
The parents were outside and he and BB went to the accused’s room.[144] He recalled he and BB taking turns sitting against the door to make sure no-one would walk in.[145] The two people who were not against the door would be performing oral sex on each other.[146] The accused also anally penetrated both BB and JJ on that occasion.[147]
[144] T 144.16-17.
[145] T 144.20 -21.
[146] T 144.22-24.
[147] T 144.33-34.
When asked if there were any other occasions when either GH or the accused offended against him, JJ said ‘Not that I can remember off the top of my head now. There were so many times that it had happened that it was, it all just sort of blurs into one, yeah.’[148]
[148] T 147.38-T 148.2.
JJ said he remembered walking home after the Christmas drinks and thinking that he was not gay and was not going to let ‘that stuff happen again’.[149] He did not see the accused again.[150] He had just received his P licence and he and his mother had moved to a new house further away from the accused.[151]
[149] T 148.9 -13.
[150] T 148.15.
[151] T 148.13-14; T 148.21.
When the abuse was happening, he never told anyone about it as he did not want people to think that he was gay or to judge him for what was happening.[152]
[152] T 148.34-37.
JJ was asked whether he had discussed details of the evidence he was to give in court. JJ said ‘No, me and BB, we, we’re not close like we were when we were younger, we only just see each other at family gatherings and stuff like that’.[153] He knew what was happening was wrong.[154] He never spoke about it to BB but they both ‘knew what was going on at the time’.[155]
[153] T 149.8.
[154] T 148.38.
[155] T 149.2-4.
Cross-examination
JJ said he and BB had spoken after a case involving their brothers was going ahead and decided to come forward. He could not recall if he told BB that nothing could be done unless BB came forward as well.[156]
[156]T 150.8-10.
JJ remembered attending a police interview with a Detective in 2008.[157] He remembered it went for a long time and he disclosed in detail a number of the allegations.[158] He could not recall if BB was present at the interview, but when he had been played a portion of that interview, he identified BB’s voice as the other person on the recording.[159]
[157] T 150.11-13.
[158] T 150.17-21.
[159] T 150.22-32.
JJ agreed the accused had no involvement in the incidents he described occurring at Easter. He said BB was present during the Easter caravan incident, the incident in BB’s sister’s bedroom, and the laundry incident.[160]
[160] T 162.1-14.
In relation to the incident at Christmas drinks, JJ agreed that the offending occurred against both himself and BB in each other’s company.[161] He agreed that he might have had his driver’s licence by then.[162]
[161] T 163.2-4.
[162] T 163.5-7.
JJ was asked in cross-examination about various inconsistencies between what he had said in his evidence and what he had previously said to police.
In relation to the incident in the caravan, JJ maintained that he had heard the front door a couple of times. In his statement to police in August 2009, he had only described someone coming out of the front door and then knocking on the caravan door.[163] When asked about the difference, JJ said ‘Over the time of this happening and - this has been buried a few times and then it's come back up again, as with the statements, over the last few years and bits and pieces come back, have been coming back to me the more and more I think about it, I've honestly tried to blanket this out so many times in my life and it just keeps getting brought up again, so.’[164]
[163] T 152.37.
[164] T 153.6-12.
He said that over the last few years bits and pieces come back and that he had tried to blank this part of his life out so many times and that as it happened so frequently, it was difficult to remember the details of every scenario.[165]
[165] T 153.18-22.
He said that his memory of incidents with the accused was better than the incidents with GH, which it was suggested was at odds with what he told police in January 2011 when he said his memory was better in respect of intercourse with GH.[166] JJ said he remembered the incident with GH as it was the first time it happened to him, but generally his memory with the accused was better as he was older.[167]
[166] T 153.34-36.
[167] T 154.4-7.
In his statement in August 2009, in relation to the incident in the caravan, JJ had said GH got him and BB to give each other oral sex and then GH performed oral sex on both of them. JJ agreed that in his evidence he had said it only involved touching both his and BB’s penis.[168]
[168] T 155.16-18.
JJ said: ‘Like I said, over the time of this period I've tried to bury this so many times. I've - like, I've taken a lot of drugs and stuff to sort of blanket this sort of stuff and it just keeps getting brought up over time of the course, it has been two years and I think it's finished, and then I get a call from the police officer and I've got to relive it all again, and it just plays with my mind so-.’[169]
[169] T 155.8-15.
JJ accepted that the time factor, drug taking and efforts to suppress his memories had an adverse impact on his memory.[170]
[170] T 155.34.
In his statement from October 2010, JJ had told police he was playing Toy Story and that GH gave both him and BB oral sex and made BB and he perform oral sex on each other, different, he agreed, from his evidence where he had said this had concerned only GH playing with their penises and making them touch his.[171] He denied the accused had never walked in and discovered them.[172]
[171] T 156.22-24.
[172] T 156.26-28.
JJ agreed that the detail included about the blanket in relation to this incident was disclosed for the first time in his evidence.[173] He said it came fresh in his mind.[174] He also agreed that the detail describing himself and BB standing in the room with their pants down was only first described in his evidence.[175]
[173] T 156.29-31.
[174] T 156.31.
[175] T 156.36-T 157.1.
JJ agreed that the incident where the accused, GH and GH’s friend were present involved the accused taking him into his mother’s room and they gave each other oral sex. The accused then went and got GH and GH gave him oral sex and ejaculated in his mouth.
In speaking to police in 2008, JJ had told police that on the occasion when the accused told him it was okay to do what GH was doing to him, GH came into the accused’s room, pulled his pants down and made him give them oral sex. While he was giving GH oral sex, the accused was having anal sex with him. JJ accepted that the incident he had given evidence about related to that occasion.[176]
[176] T 158.29-T 159.30.
JJ was asked:
Q. You accept that that relates to the incident that you've given evidence about.
A. Yes.
Q. And, again, we have got some fairly significant discrepancies there, don't we.
A. Yes.
Q. First of all, you were in [AH’s] bedroom not the parents' bedroom.
A. Yes.
Q.And, secondly, quite an important detail, the fact that [AH] was having sex with you in the anus whilst you were giving [GH] a head job was not part of what you told her Honour today, was it.
A. That was on the second time that I said today. It was two separate incidents.
Q.Well, you've agree with me, haven't you, that that related to the video borrowing incident that we are talking about.
A.Like I said, most of the times that I ever went around to [AH’s] was to borrow a video so it's very hard to picture which exact time it was.
Q.You agree also, sorry, that there is another feature that's missing from that version and that is the presence of the friend.
A. Yes, that was the first one.
Q. So, the friend, when you first spoke to the police, gets no mention.
A. I'm not sure.
Q.Well, from the passage that I've read to you you would agree, wouldn't you, that there is no mention of the friend being there.
A. I did tell the police in one of the statements that he was there.
Q.That might have been in a later statement but the first time you spoke to them you didn't tell them about the friend being there.
A. No.
Q.And about him being hot and being asked about whether or not you wanted to get involved with him as well.
A. Yep.
With respect to the time he went to borrow a board game, which JJ had said was the first time he had been anally penetrated by the accused, JJ agreed that when he spoke to police in October 2010, he had not referred to the accused trying to get him to anally penetrate the accused.
JJ said there may have been ten, maybe fifteen people present at the Christmas drinks.[177]
[177] T 163.10.
JJ agreed that the computer on which he saw child pornography was available to the household to use. He said that it was ‘weird’ that he had made no mention of it being child pornography until August 2011, in his statement signed in March 2018. JJ was asked more about these incidents on the following day of trial. He agreed that the incident where GH’s friend was present that he had described in his evidence, concerned the accused and himself giving each other oral sex and the accused going to get GH, and JJ and GH then giving each other oral sex. He said this was the first time GH ejaculated into his mouth.[178] JJ then agreed that he had given evidence about another incident where he borrowed a movie, that took place in the accused’s mother’s room. With respect to that other occasion, JJ had told police in 2008 that there had been another time when GH took him into his mother’s room, and made JJ give him oral sex, while GH was masturbating JJ and GH ejaculated in JJ’s mouth.
[178] T 168.27.
In October 2010, JJ had said it was the accused who went and got GH and that GH came in and did stuff to him and this was the first time GH ‘came’ in his mouth.
JJ was also asked further questions about playing Grand Theft Auto IV, when he was there with BB. In evidence, JJ had described the accused and himself giving each other oral sex. BB had then come in to the accused, and JJ went out to GH and there was mutual masturbation and oral sex. JJ agreed that in his statement in 2008 he had suggested that the accused had given both JJ and BB oral sex. He had described this incident as follows:[179]
It started off as groping and then it turned into sexual intercourse. [GH] kept leaving the room and the [accused] was trying to get himself - get us to himself and then [GH] would come in and he would try and get one of us to himself and then, um, they took us outside. They took – [GH] took me out to the shed, sort of just by the brick wall and, like, [the accused] and[ BB] were in the other room and [GH] asked me to give him a head job and there was no sexual intercourse with [GH] on this occasion. It was just a head job but then we went back in - actually [GH] went back inside after he was done with me, and that's when [the accused] did me and [BB] both of us.
[179] T 172.5-18.
Ms Litster urged me to find with respect to JJ, that his previous inconsistent statements could not ‘carry the day’ given the repetitive nature of his abuse, and suggested it would be open to conclude that details have moved from one occasion to another and in having to recount this many times over a decade, things have become confused.
Ms Litster referred to JJ’s presentation when giving evidence about the abuse of BA, where JJ clearly showed he felt shame and was uncomfortable, demonstrating his honesty. JJ was honest as to his drug use and the difficulties he experienced with his memory.
BB’s account showed the natural escalation of offending that one might expect; starting with touching and ending with anal intercourse. BB could reach for the details of the offending without hesitation, demonstrating his honesty.
As to the accused’s evidence, Ms Litster described him as slow or failing to acknowledge reasonable matters. His account of an ‘asexual’ adolescent period was, Ms Litster suggested, implausible, and given to distance himself from the allegations. The accused demonstrated clear memories of certain, but on his account, unremarkable matters, and yet had no memory of other matters.
He said he had not followed up with why JJ had left Video Ezy and then, reassessed his position and said that he had no memory of doing so. This, Ms Litster suggested, demonstrates the accused was not being truthful and was adapting his evidence where he recognised there was a difficulty for him.
The accused’s evidence as to the key and his entering his mother’s bedroom were not plausible. Ms Litster suggested that I should reject the accused's denial of the offending as a reasonable possibility.
In assessing whether there had been either collusion or concoction between the complainants, Ms Litster suggested that I look first at the degree of contact between the complainants. After they left primary school there was limited contact and mere contact between the men over the years does not indicate collusion of itself, when more fundamentally the complainants' account of what happened to each of them is dissimilar.
JJ was interviewed by the police on 16 September 2008, whereas BB went to the police in 2006, in circumstances which Ms Litster suggests, rebuts any suggestion that BB has gone to the police to assist JJ. I note at this point however, BB said in cross-examination that his report in 2006 had not concerned himself. Ms Litster agreed that it was unusual for police to have interviewed JJ in BB’s presence, but suggested that I make little of it in the context of this case. It was the fault of neither complainant and neither appeared to have imported details from the other's account into their own from that process.
As to BB being unable to now remember his presence at the interview with JJ in 2009, Ms Litster suggested that BB’s lack of memory of being present was consistent with the fact that none of the detail of JJ's account seems to have made its way into his own account. That is, none of the detail which places him as present for offending with JJ, when he was older, was imported into his own account.
Ms Litster acknowledged that the key differences between the complainants’ accounts are that JJ places BB as present on several occasions. That is, in the caravan with GH; in the laundry with GH; when the complainants fellated each other at BB’s address, where BB’s younger brother was being sexually offended against by GH; the Christmas incident when they all went into the accused’s bedroom; and, the incident with GH and the accused where they were swapped between them. Ms Litster urged me to accept JJ’s account of these matters despite BB's lack of memory. The detail of fellatio occurring fits with the overarching pattern of offending and details of performing sexual acts on the accused and the other complainant, may well be memories which BB has firmly put away and which are too difficult to recall. Even were I to find that BB was not being truthful about his lack of memory of those events, I was urged not set aside all his evidence.
Ms Litster submitted that I could find that the accused, on the evidence that has been given in the trial, had a highly specific propensity to act on a sexual interest against under-aged boys, which could be used as a circumstantial piece of evidence in the case as against the other complainant.
Mr Allen directed my attention to what he described as the ‘fundamental flaws’ in the quality of the prosecution evidence, characterising certain aspects of the case as ‘very curious and troubling’.
In the prosecution’s opening, reference had been made to an aspect of the charged offending said to have taken place on the pool table at the accused's father's home. That occasion involved both the accused and GH, where GH forced anal sex on BB with the accused entering the room and forcing BB to touch his penis. In his evidence, BB had described in his evidence, GH attempting to insert his penis into his anus on the pool table when they were interrupted by the accused and the incident ended. Another incident was described where the accused attempted to insert his penis on the pool table without success. BB was given the opportunity under cross-examination to go back to this incident and confirmed that there was no joint abuse that took place on the pool table.
Mr Allen referred to the decision in R v Mas[300] as authority for the use to be made of a demonstrated inconsistency between a prosecution opening and a complainant’s evidence to show a previous inconsistent statement, and whether a failure to come up to proof on an important issue on the prosecution case diminishes his reliability on the balance of the case.[301]
[300] 118 SASCFC 122 at [91] & [95].
[301] See R v Markuleski (2001) 52 NSWLR 82, but see Vanstone J in R v B, P [2006] SASC 229.
As regards BB’s evidence that he has no recollection of abuse occurring in the presence of another with the exception of GH, while such memories might be difficult for a witness to recall, that does not mean that such a catastrophic failure in reliability can be excused. JJ’s evidence was not capable of ‘rehabilitating’ the absence of a memory on the part of BB.
Mr Allen referred to the inconsistencies between the complainants with respect to communication between them about these matters and BB’s statement to police that JJ had told him nothing could be done unless he, that is, BB, came forward.
Mr Allen described BB’s presence at the police interview of JJ as ‘very curious and troubling’. The interview was not short, running for between an hour and an hour and a half, and which I could find on the evidence, involved graphic disclosures by JJ. While Mr Allen accepted that there were differences between the events described by the complainants, there was, given BB’s presence, an opportunity for certain details to be adopted. BB’s failure to recall being present, must, according to Mr Allen, at the very least, be destructive of BB’s reliability.
JJ’s concessions that there was some confusion in his mind about specific incidents and that there was drug use and other psychological factors which had affected his memory, was, Mr Allen submitted, a two-edged sword about an assessment of the reliability of his evidence.
Mr Allen identified many of what he described as significant inconsistencies in JJ’s evidence, and submitted that it was not capable of ‘rehabilitating’ the evidence of BB as suggested by the prosecution. There was, Mr Allen suggested, a ‘critical mass’ with respect to the inconsistencies such that the charges could never be proved to the requisite standard.
Mr Allen addressed the issue of forensic disadvantage to the accused about his ability to effectively conduct the case in a way that casts doubt about the complainants’ credibility and reliability. Further, and more specifically, he referred to the destruction or absence of the Video Ezy records, Video Ezy CCTV and the RAAF records, and an inability to obtain phone records.
Mr Allen submitted that there was nothing about the accused’s evidence that would cause me to dismiss his version. He made appropriate concessions, some of which Mr Allen submitted might be thought to work against him. The accused was not caught out lying, and there were no inconsistencies within his narrative. Mr Allen accepted the accused’s reticence to embrace the issue of a teenager being interested in sex was an unusual aspect to his evidence, but suggested it should not serve to discount his evidence more generally.
Findings
HH was an impressive witness. She was both credible and reliable. BB’s recall of the incident with GH in Geelong is consistent with her evidence that a lamp had been smashed during that visit. HH said she was pregnant at the time with her son BA, who was born in December of 1995. BB said he was about six years old at the time.
JJ’s description of an incident in the caravan at BB’s house was also consistent with the evidence HH gave of hiring a caravan in 1996 on either the long weekend in June or for Easter. JJ’s description of how the incident came to an end is also consistent with HH’s evidence of an occasion where children inside the caravan said they could not open the door and that when it was opened, there were male children inside.
BB’s evidence that he fell through a window on an occasion when there was a fight among the adults, was consistent with HH’s evidence of a family function in 1997, when there was a fight and BB had fallen through a window.
It is not surprising that KK had no memory of an event where she had seen GH, BB and JJ in a room with their pants down. It is not clear what, if anything, she did see. JJ said they were in her room with the door closed, which to KK, as a seven-year old child, may have been enough for her to say they were going to be ‘in trouble’. I find that KK’s evidence of the time taken by the boys on the RAAF showers does not really assist, other than to say it is not inconsistent with the evidence BB gave.
The statement of BB’s uncle AA, corroborates BB’s evidence of GH’s offending against him.
The offending by GH is relevant to explain why neither of the complainants complained, when later, the accused began to offend against them, and why, given the accused was aware of GH’s offending, the accused would offend in GH’s presence. I have used the offending by GH only in these permissible ways.
I consider that both BB and JJ’s evidence establishes beyond reasonable doubt that each was sexually abused by the accused.
While BB appeared to be a relatively unsophisticated witness, I found him an impressive witness who gave his evidence in a direct and believable manner. He gave a vivid and compelling description of as a little boy, being subjected to manipulation and abuse by both his older cousins. His account of what had occurred showed what was a natural escalation of the offending committed against him. I do not doubt his honesty.
As Mr Allen pointed out, BB’s evidence regarding the pool table incident was inconsistent with the prosecution opening in that in his evidence, BB said that the accused was not involved in the offending on that occasion. I also note that there is no evidence of the accused causing BB to touch his own penis. In the circumstances, I am unable to find that the charged offending at Paralowie has been proven, or that the accused offended by committing acts of gross indecency involving self-touching at the RAAF base. As to what effect this has on my assessment of the reliability of BB’s account as to the other offending alleged to have occurred at the RAAF base, as I have said, Mr Allen has drawn my attention to R v Mas.[302] Ms Litster relied on the decision in R v B, P[303] where Vanstone J, discussed a line of authority where it was suggested a trial judge must instruct a jury that a failure to be satisfied about one allegation made by a complainant, should be carried into deliberations with respect to other counts.[304]
[302] Ibid.
[303] [2006] SASC 229.
[304] At [23].
Ms Litster submitted that the ‘Markuleski’[305] approach ought to be reserved for cases where there is simply no other evidence in the case, which could corroborate a complainant's account of the other offence. To adopt the that approach here, would, in Ms Litster’s submission, be to ignore the other evidence which sits around the evidence of BB and she suggested Vanstone J’s more qualified approach should be applied.
[305] R v Markuleski (2001) 52 NSWLR 82.
Nevertheless, I have considered whether the unreliability of BB’s evidence regarding the pool table incident and acts of touching his own penis at the swimming pool, have caused me to doubt his evidence entirely. As I have said, I have found BB to be an honest witness. He, like JJ, struggled to recall details of events because of his age at the time and the frequency and routineness of the abuse. He clearly found giving evidence a difficult experience. I am satisfied beyond reasonable doubt of the reliability of his evidence overall.
After hearing the evidence, I have found that the evidence of both complainants is cross-admissible in that there was a sufficient link between their evidence such that the evidence of one was highly probative of the other. I am satisfied that there has been limited contact between the complainants and I find that there has been no collusion between them.
BB acknowledged that he had told police he understood that JJ’s matter could not move forward without him and I have had careful regard to the defence submissions on this issue.
JJ was interviewed by police in September 2008 in BB’s presence. Ms Litster accepted that BB’s presence at JJ’s police interview was ‘unusual in the course of police statement taking’. Clearly the interview should not have proceeded in that way. While the interview is not before me, it would no doubt, have involved JJ giving a detailed account of his abuse.
I accept BB’s account that he has no memory of the interview was genuine, as was JJ’s evidence that he could not recall BB was present. Importantly, neither complaint appears to have imported details from the other's account into their own from that process. Their accounts are dissimilar and not in a deliberate or constructed way. Each complainant gave a consistent account of certain features of the offending but with varied detail. As the prosecution quite rightly says, this supports a favourable assessment of the complainants. It is relevant to note that the complaint by BB to police came about after a text message to his mother.[306]
[306] It is agreed that the communication did not amount to a ‘complaint’ pursuant to s 34M of the Evidence Act and cannot be used to demonstrate consistency by BB.
BB’s account was that he did not remember any offending involving JJ, however that difference did not in my view detract from the reliance I am able to place on the evidence of either complainant. In my view, there may be many reasons why a victim of this type of abuse would be unwilling or unable to recall memories of certain traumatic and embarrassing events. For BB, the circumstances here, involving abuse by close family members, on one occasion involving his own younger brother, and on others, involving his close friend, would understandably be traumatic to recollect. I am satisfied that there has been no attempt by BB to fabricate his own story to help JJ, or that they have engaged in collusion.
JJ’s evidence was compelling and without exaggeration or embellishment.
I found his distress in giving evidence regarding GH’s abuse to BB’s young brother, BA, was genuinely borne from having witnessed that event. His demeanour when describing the abuse of a baby in the pornography he had been shown was consistent with a sincere reflection as to how horrific such an image is. Given what I accept was the genuineness of JJ’s response to recalling the image, it is not surprising that he made no mention of the image when speaking to police more generally about having been shown pornography. There was nothing inherently implausible in his account of the opportunistic and brazen offending he described occurring at the Video Ezy premises or on the way home. I accept his explanation that leaving his employment there was ‘different’ to going to the accused’s house, at his mother’s request.
The evidence JJ gave regarding the threatened use of the naked photograph, and his fear of what the consequences might be, was compelling.
The version of Grand Theft Auto that JJ described playing was version 4, which was not released until 2008, when JJ would have been around 19. Clearly, he is mistaken as to the version. In my view, nothing turns on that mistake. Both BB and JJ have described playing the game at the accused’s house. The accused said he owned various versions of the PlayStation consoles. JJ’s mistake as to the version of Grand Theft Auto he played does not cause me to doubt his evidence.
There were inconsistencies in JJ’s evidence, and at times his evidence was confused and difficult to follow. The inconsistencies were, in my view, of little importance and could readily be explained as being a consequence of JJ’s age at the relevant time, or the routine of the occurrence of sexual acts. Some more significant inconsistencies, particularly concerning the events when JJ was an older child, could be expected to be recalled more readily. With respect to the evidence JJ gave regarding a time when he had gone to the accused’s house to borrow a DVD, there was, I accept, a good deal of confusion in his evidence, no doubt because he believed he had gone there on most occasions to borrow a video.
I have carefully assessed the apparent inconsistencies between what JJ said in his evidence and what he told police, particularly in relation to the Matrix evidence, the occasion at Video Ezy that took place in the back room, the first time JJ had been anally penetrated when he had gone to the accused’s house to borrow a ‘horror’ board game, an occasion of fellatio in the car at Tobin Way, his evidence that the accused had not paid him for sex, and the time when he had been shown pornography. In my view, none of those inconsistencies are of such significance to affect my regard for JJ as a reliable witness.
This was not a case which depends entirely on the degree of accuracy of the complainants’ recollections.
As discussed in his dissenting judgment in R v M,[307] McHugh J, said:
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’ 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 a conversation in a fraud case or the description of a person where identity is the issue — discrepancies and inconsistencies in the witness’ 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’ general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.
[307] (1994) 181 CLR 487 at 534.
As identified by Vanstone J in R v Livingstone,[308] it is important that the cumulative force of inconsistencies be considered. In my view, JJ understandably confused features of the offending between events which occurred routinely. His explanation that the abuse occurred on numerous occasions, that he had tried to put the events out of his mind and had used drugs, made perfect sense in the circumstances of abuse that he had described. There was an apparent readiness by JJ to agree to propositions put by Mr Allan when inconsistencies were brought to JJ’s attention. This preparedness to appreciate the differences in what was said previously was in my view a commendable attribute. There do appear to have been numerous occasions when JJ was spoken to by police and from when he was first interviewed, it seems to me, that the police investigation progressed in a way that has not assisted JJ to present his evidence in a cogent and consistent way. The quality and accuracy of a police statement can depend on the way the interview is conducted. It would, in my view, not be surprising for precise and more fulsome details not to have come to mind when only asked certain questions by police.
[308] [2011] SASCFC 283 at [21].
His evidence regarding the game of ‘cops and robbers’ showed he was not prepared to fill in details where he had no, or very little memory of an event. His preparedness to say, ‘I don’t know’ when asked for more detail, suggested a preference for honesty over a desire to be artificially consistent. In my view, had JJ fabricated his evidence, he would likely have supplied supplementary detail and professed a better recollection.
In assessing the prosecution case I have regard to the substantial forensic difficulties faced by the accused. The delay and the inexplicable decision by police to destroy certain records, have, I accept, denied the accused the opportunity to put before the court material from Video Ezy, the RAAF and phone records that may have assisted in his defence. I bear these disadvantages in mind when scrutinising the case for the prosecution.
The accused was not an impressive witness and there was a superficial quality to his evidence. His denial of any sexual interest as a teenage boy was inherently implausible and clearly a deliberate attempt to distance himself from any interest in involving himself in sexual behaviour against the complainants. The answers he gave as to any follow up on why JJ had left Video Ezy was in my view disingenuous, and reflected poorly on his credibility. His evidence regarding not entering his mother’s room and not providing a key to JJ was implausible. I reject his evidence about the true nature of his behaviour with either complainant and reject beyond reasonable doubt, his exculpatory statements.
I have reminded myself that even were I to reject his denials, that does not mean I am able to find him guilty. As the High Court said in Douglass v The Queen:[309]
The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant. It is not enough that the accused’s evidence was rejected. Even if the judge was not persuaded by the appellant’s evidence, he could not convict the accused unless satisfied that it was not reasonably true.
[309] [2002] HCA 34.
I have found that both BB and JJ were compelling witnesses. I reject there having been any sort of conscious collusion or concoction.
The inconsistencies in JJ’s evidence do not cause me to lose faith in the reliability of his account. I am also satisfied that the inconsistency in BB’s evidence does not detract significantly from the evidence he gave generally.
I am satisfied beyond reasonable doubt, in relation to both complainants that their evidence discloses a highly specific propensity of the accused, to act on a sexual interest against under-aged boys, as a piece of circumstantial piece of evidence in the case as against the other complainant.
I accept BB’s evidence that the accused committed acts of gross indecency and indecent assault against him multiple times between 2003 and 2004, at the RAAF swimming pool, behaviour which I find amounts to maintaining an unlawful sexual relationship.
I cannot be satisfied beyond reasonable doubt as to the age of the accused at the time when JJ was shown child pornography by the accused. JJ said that it was before he worked at Video Ezy, and when he was ‘about 14’. As I understand the evidence, JJ turned 14 on 9 June 2002, while the accused turned 18 on 12 August 2002. There is therefore a period, albeit short, when the accused may not have been aged 18, at the time of that offending.
I accept JJ’s evidence that the accused committed acts of unlawful sexual intercourse against him multiple times between 13 August 2002, when the accused was aged 18, and 8 June 2005, behaviour which I find amounts to maintaining an unlawful sexual relationship.
I find the accused guilty of counts 1 and 2.
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