R v Hamra
[2018] SADC 33
•16 April 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAMRA
Criminal Trial by Judge Alone
[2018] SADC 33
Judgment of His Honour Judge Barrett
16 April 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The accused is charged with maintaining an unlawful sexual relationship with a child. It is alleged he offended against the eldest of three brothers in the 1970s from when the complainant was 13 until he was 17. The Prosecution alleges four types of sexual acts comprising indecent assaults, gross indecency and unlawful sexual intercourse. All acts are alleged to have been committed more than once. The Defence case is that none of the acts occurred.
Held: Guilty
Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 34(P); S v Queen (1989) 168 CLR 266; Hamra v The Queen [2017] HCA 38; Crampton v The Queen (2000) 206 CLR 161; Tully v The Queen (2006) 230 CLR 234; The Queen v Cassebohm (2011) 109 SASR 465, referred to.
R v HAMRA
[2018] SADC 33
The accused is charged with Maintaining an Unlawful Sexual Relationship with a Child pursuant to s 50(1) of the Criminal Law Consolidation Act. It is alleged that he maintained a sexual relationship with the eldest son of a family he had befriended. His first contact with the family was as a tutor for the second son who had some learning difficulties. He became friendly with the family and kept up contact with them for several years after the tutoring finished. The sexual relationship with the eldest son is alleged to have taken place between the 30th of October 1977, on the eve of the son’s 12th birthday, and the 1st of October 1982, shortly before the boy turned 17. The complainant, now aged 52, said that the relationship continued after he turned 17 until he was nearly 18.[1] If that is so the relationship after he turned 17 would not have been a breach of s 50(1) of the Act. On reflection evidence of sexual acts after the complainant turned 17 would be evidence of uncharged acts and would be subject to the provisions of s 34(P) of the Evidence Act. That question was not raised during the trial, but the evidence is of no significance in my verdict.
[1] T17.
The Prosecution must prove beyond reasonable doubt the following ingredients:
1The accused was an adult at the relevant time. It is an agreed fact[2] that the accused was born in August 1955. He would have been 22 in October 1977.
2The complainant was a child. The complainant turned 17 on the 1st of November 1982.
3The accused engaged in an unlawful sexual relationship by committing two or more unlawful sexual acts with or towards the complainant. An unlawful sexual act means an act which would itself constitute a sexual offence. I set out the acts particularised in the Information which the Prosecution alleges the accused committed. Alongside each I refer to the sexual offences they would amount to if proved.
(a) touching BT’s genitals on one or more occasion – indecent assault
(b) placing his penis between BT’s bottom on one or more occasion – indecent assault
(c) causing BT to touch his penis on one or more occasion – gross indecency; and
(d) performing fellatio upon BT on one or more occasion – unlawful sexual intercourse
4The final element of the offence relates to the issue of maintaining an unlawful sexual relationship. The word “maintain” or “maintaining” carries its ordinary meaning; that is, carried on, kept up or continued. The Prosecution must prove beyond reasonable doubt that there was an ongoing relationship of a sexual nature between the accused and BT – that is, proof of continuity of sexual conduct on the part of the accused.
[2] Fact no. 1 of P5.
There is no suggestion that the particularised acts do not constitute the nominated sexual offences.
Case for the Prosecution
The Prosecution case is that sometime after the accused met members of the complainant’s family at a birthday party put on for the mother’s birthday by a family friend, the accused was asked to tutor the second of the three sons to help him with a learning difficulty. The accused was recommended to the complainant’s family by the friend who put on the birthday party. The accused was understood to be a Primary School teacher at the time. The second son was at Primary School. The complainant said that he first met the accused at that birthday party. The date at that birthday party assumes some importance in the trial. I will return to that topic later.
In due course the accused began tutoring the second son in the complainant’s family home. The complainant thinks that by that time he himself had begun High School. The second son, two years younger, and the third son, five years younger, were at Primary School. The only witnesses called by the Prosecution were the complainant and his mother. The mother is now 72. Both gave evidence that the tutoring began shortly after the introduction to the accused at the mother’s birthday party, a matter of weeks or a couple of months. The birthday party was a surprise party put on for the mother. Her age at the time is not entirely clear.
The tutoring occurred at first on weeknights in the family home. As the accused became friendly with the family he would sleep over at the house. The tutoring sometimes occurred on weekends. The accused joined the family on holidays at a family shack on Yorke Peninsula. The complainant stayed over on occasions at the accused’s parents’ house in Kurralta Park when the parents were away. The complainant’s parents visited at the Kurralta Park address although they did not stay over. The complainant and his parents visited a shack at Goolwa owned by the accused’s sister. The complainant says that nothing of a sexual nature occurred at the shacks on Yorke Peninsula or at Goolwa but on about two occasions something of a sexual nature occurred at the Kurralta Park house.
The complainant says that the accused began sexually interfering with him in his, that is the complainant’s, bedroom after the tutoring sessions with his brother. The offending occurred first in a bedroom he shared with his two brothers. At that time his maternal grandmother lived with the family. The offending also occurred in another bedroom which he occupied on his own after the grandmother moved into a nursing home. The times at which the complainant occupied those two bedrooms assumes importance in the trial. I will return to that topic.
The complainant said that the sexual offending occurred for about five years from when he was about 12 to about 17. At the beginning the accused would just get into the complainant’s bed with him. The accused did not touch him sexually at first. After a while the accused did start touching him, first on his genitals outside his pyjamas, then inside the pyjamas. The sexual behaviour escalated further. It progressed to the accused causing the complainant to touch and masturbate his penis. There was mutual masturbation leading to ejaculation. On a couple of occasions the accused committed fellatio on him.[3] Sometimes the accused put his penis ‘between the butt cheeks’[4].
[3] T19.
[4] T21.
The complainant said that not a word passed between him and the accused during the sexual acts nor in the alleged grooming when the accused got into bed with the complainant without touching him.
The complainant did not give evidence of specific, individual sexual acts. He spoke generically of the sexual acts. In the summary of this prosecution case I have effectively described how the complainant gave his evidence. He described the sort of acts which occurred at the beginning of the offending and he described the escalation to other sorts of acts. He said the touching of the genitals (Particular (a)) happened ‘lots of times over four or five years’.[5] He said the accused placing his penis between his bottom (Particular (b)) occurred ‘sometimes’ and ‘quite a few times’.[6] He said he was caused to touch the accused’s penis in the course of mutual masturbation (Particular (c)) ‘over a few years’.[7] He said fellatio (Particular (d)) occurred ‘on a couple of occasions’[8] while his, that is the complainant’s, parents were away in Fiji.
[5] T16.
[6] T21.
[7] T16-17.
[8] T19.
Evidence of offending given in this generic fashion lacks the degree of specificity required by the common law – see S v The Queen (1989) 168 CLR 266. However in an appeal to the High Court in this very matter (Hamra v The Queen [2017] HCA 38) the Court held that s 50 of the Criminal Law Consolidation Act removed the requirement that there be such specific evidence. The Court found that s 50 was designed to overcome the difficulties encountered by complainants having to identify specific occasions on which offending took place. That being so if I were to be satisfied beyond reasonable doubt that the particularised acts took place, and with sufficient frequency, a guilty verdict would be called for despite the lack of evidence of specific acts.
Case for the Defence
The Defence case is that none of the alleged grooming or sexual behaviours occurred at all. It appears not to be disputed that the accused tutored the complainant’s next younger brother and became a friend of the family. He stayed overnight at times. He looked after the brothers when their parents went to Fiji. The accused stayed with the family on Yorke Peninsula. The boys visited with the accused at the accused’s parents’ house at Kurralta Park and the accused’s sisters’ house at Goolwa.
The Defence case is that either the complainant is deliberately lying about the sexual offending or he has developed a false memory. The Defence does not point to a motive to lie nor to a possible explanation for a false memory being formed, but it is plainly not for the Defence to do either. It is for the Prosecution to prove its case beyond reasonable doubt. People may lie, or come to hold false beliefs, for reasons which cannot be discerned.
The Defence points to contradictions within the evidence of the complainant, contradictions within the evidence of the complainant’s mother and contradictions between the two witnesses. The Defence also points to contradictions between the witnesses’ evidence and agreed or likely facts. The accused did not give or call evidence in his defence. I draw no adverse inference against him by reason of his exercising his legal right in that regard. Further, I bear in mind that the accused suffers from significant forensic disadvantage brought about by the long lapse of time between the alleged offending and the accused becoming aware of the allegations. There is just over 40 years between the alleged commencement of the offending in 1977 and the trial. The accused never reported his allegations until he spoke to the police in 2012. There is no evidence of complaint. He told no one. It is not clear when the allegations were first made known to the accused but I will assume it was just under 40 years after the alleged beginning of the offending. While I here acknowledge the accused’s forensic disadvantage by reason of the long lapse of time I will more specifically identify the disadvantages when I discuss the evidence in more detail.
Discussion of the Evidence
The complainant said that he first met the accused at a birthday party put on by the family friends for his mother. A photograph of his mother and youngest brother at that party was tendered.[9] There is uncertainty about which birthday was being celebrated. That uncertainty is the subject of criticism of the evidence of both the complainant and his mother.
[9] P2.
The complainant says that sometime after that party, only a matter of weeks or a couple of months, the accused began tutoring the next youngest brother ST. A few months after the tutoring began the accused started staying overnight at the family house. The complainant believes he was in first year High School when the tutoring began. He began High School in 1978. He turned 13 in November 1978. At the beginning of 1978 his younger brother ST would have been 10 years old and the youngest brother, would have been seven. The complainant says that after the accused had been staying overnight at the family home for a while he began coming into his, that is the complainant’s bed, during the night. For a time the accused did nothing of a sexual nature. He just got into the bed with the complainant. Nothing was said by either of them when the accused did that. As time went by the accused did start doing sexual things to the complainant. He started touching him on the genitals outside his pyjamas, then on the inside. That escalated to the accused masturbating the complainant’s genitals to ejaculation and later to the accused causing the complainant to masturbate him. The complainant said that when his parents went to Fiji leaving the three boys at home in the care of the accused, the accused committed fellatio on him twice.
The complainant said that the sexual behaviour began when he was about 12 and continued for about five years although with diminishing frequency after the complainant got his licence at 16. He turned 16 in November 1981.
The complainant said that at times the accused would place his penis between the cheeks of his buttocks. This happened ‘sometimes’, ‘a few times’.[10]
[10] T21.
I pause to say that if I was satisfied beyond reasonable doubt of the complainant’s account of the accused’s sexual behaviour towards him I would find the charge proved. The complainant gave evidence of all of the acts particularised in the Information and the frequency of occurrence of each. I find that the particularised acts constitute the sexual offences applicable to each. I find that the acts alleged in Particulars (a) and (b) are assaults and they are indecent according to community standards. I find that the acts in Particular (c) are gross indecency. I find that the alleged fellatio in Particular (d) amounts to unlawful sexual intercourse.
The issue in the trial is whether the Prosecution can prove beyond reasonable doubt that the accused committed the acts.
I find that there is no reason to find some of the acts proved but not others. The Defence case is that none of the sexual acts was committed by the accused. More aptly, the Prosecution has not proved beyond reasonable doubt that any of them occurred.
The complainant said that the sexual behaviour all occurred in his family home except on about two occasions when it occurred at the accused’s parents’ house at Kurralta Park while the accused’s parents were away. On these occasions some other boys from the school where the accused was teaching were also sleeping over. Although the accused stayed with the complainant’s family at a shack on Yorke Peninsula and the complainant and his brothers may have stayed overnight at the accused’s sister’s house at Goolwa (there is some uncertainty about whether they stayed over) the complainant says that no sexual activity occurred at these locations.
The complainant appears to have told no one about the sexual offending until he reported the matter to police in 2012. The Prosecution led no complaint evidence. The accused cannot have known about the allegations until 2012 at the earliest. That is between 35 and 40 years after the alleged commencement of the offending. It is an agreed fact[11] that the accused was interviewed and reported on the 8th of September 2012 for the subject offending. The contents of the interview were not led in evidence.
[11] No. 9 of P5.
One of the central challenges to the credibility of the complainant’s evidence arises from his evidence that when the accused began coming into his bed the complainant was sleeping in bedroom 3 in the family home with his two younger brothers. There were three bedrooms in the house.[12] The parents always occupied bedroom 1. For a time, the complainant’s maternal grandmother occupied bedroom 2. There is no dispute about that fact but there is a dispute about when she lived in the house.
[12] House Plan, P3.
The third bedroom was occupied by some or all of the three boys. There is a dispute about the identity and number of the boys in that room at particular times.
Each of the complainant and his mother gave evidence on these topics.
I have not yet canvassed the complainant’s evidence of dates and its significance in the trial. I will do that by way of comparison between his evidence on those topics, the evidence of his mother and agreed facts.
Before turning to the mother’s evidence I say something about the Defence case. I have already said that the Defence does not point to a motive on the part of the complainant to deliberately lie about the offending. The Defence position is that the complainant may be lying or he may have come to falsely believe that the offending took place. It is plainly not for the accused to assert or demonstrate how the complainant comes to be giving his account. It is for the Prosecution to prove his case beyond reasonable doubt.
I turn to the evidence of the complainant’s mother RT. RT is 72. She was born in October 1945. At all relevant times she lived with her husband and their three sons in the same family house. Her mother lived with them for a while. RT said her mother died in January 1982. There is no evidence to contradict that date. RT said that her mother died in a nursing home where she had lived for three or four years. If RT is to be taken literally in those estimates her mother moved into the nursing home in January 1978 or January 1979. Before moving into the nursing home RT’s mother lived with the complainant’s family. RT thought that her mother lived with them for less than a year.[13] There appears to be no dispute that while the complainant’s grandmother lived in the family home she occupied bedroom 2 on her own. Bedroom 2 is immediately adjacent to bedroom 1, the parents’ bedroom. There is a bathroom between bedroom 2 and bedroom 3. The complainant thought that the grandmother stayed with the family for ‘a couple of years’.[14] In cross-examination he conceded that his mother’s recollection on that topic will be more reliable than his own.[15]
[13] T74.
[14] T12.
[15] T62.
The presence of the grandmother in the house assumes some importance because the complainant says that when the accused first started getting into bed with him he was sleeping in bedroom 3 with his two brothers. The two brothers occupied a double-decker bunk and he was in a single bed. The accused said both in examination-in-chief[16] and cross-examination[17] that he was in bedroom 3 when the accused started getting into bed with him although in cross-examination he acknowledged that in a statement he gave to police in November 2013 he said he was unable to be sure which bedroom he was in when ‘something first happened’.[18] He also acknowledged telling a prosecutor at a proofing in January 2016 that he was unable to say which bedroom he was in when ‘something happened’.[19] When asked in cross-examination whether he claimed that his memory improved with the passage of time he said that it did not, but he added that ‘you start to remember more when things are brought back up’.[20]
[16] T14.
[17] T37.
[18] T47.
[19] T48.
[20] T47.
Much attention in cross-examination focused on the complainant’s occupation of bedrooms because it appears that the complainant may have moved, at least for a time, into bedroom 2 on his own after the grandmother moved into the nursing home. There is some difference between the complainant and his mother about when and whether the youngest brother GT occupied bedroom 2 on his own, but the complainant was firm that he occupied bedroom 2 on his own when he built a model truck. He thought that was in 1979.
Other evidence tended to suggest that it was unlikely that the accused began his tutoring before 1979. Both the complainant and his mother said that they understood that when the accused began the tutoring he was a school teacher. It is an agreed fact that the accused graduated from Sturt CAE in 1978[21] and began teaching at a private school in 1979.[22] The complainant said that the accused began getting into his bed when he was 13 and in his first year at High School. The accused started High School at the beginning of 1978 and turned 13 in November that year.
[21] Agreed Fact 2 of P5.
[22] Agreed Fact 3 of P5.
The complainant said that he was in bedroom 3 with his brothers when the accused began getting into his bed and interfering with him. He said that the accused also interfered with him in bedroom 2 when he occupied that room on his own.
I digress to refer to a document prepared by the Defence and foreshadowed by Mr Griffin QC in his address. The document was forwarded to me by agreement with the Prosecution after judgment was reserved. The document helpfully refers to inconsistencies appearing in the evidence of the complainant and his mother, that is inconsistencies within the evidence of each, inconsistencies between the two of them and then consistencies between them and other evidence, essentially agreed facts. I have had regard to all the matters referred to in that document although I do not specifically refer to each. I note that there is one inaccuracy in the document. It is claimed that the complainant said in his evidence at T63 and 64 that at one stage the accused slept in bedroom 2 ‘with the grandmother’. This is not correct. At Transcript 63-4 it was put to the complainant that in a statement to police he had said that the accused stayed at times ‘in the room where grandmother used to stay’. The accused agreed that he did say that to police. However in a later statement he said that that was not correct and the accused did not sleep in bedroom 2. Instead he had slept either in the lounge or in bedroom 3. In other words it is an error to say that the complainant ever said that the accused slept in bedroom 2 with the grandmother. However the point being made in the Defence document remains valid insofar there is an inconsistency between two statements made by the complainant to police. In one he had said the accused slept in bedroom 2 whereas in the other he had said that that was not right.
On the basis of the agreed fact about when the accused began teaching[23] I think it unlikely that the accused began tutoring before 1979. However he could have begun tutoring in that year. The complainant said that the accused began getting into bed with him when he was 13 and in his first year at High School. In 1979 the complainant was 13 for most of the year. He turned 14 in November. That year he was in second year at High School not first. If RT is taken literally then her mother moved to the nursing home at the latest in January 1979. However RT did not claim to be precise about when her mother moved to the nursing home. The complainant does think that he built his model truck when he was in bedroom 2 on his own and he thinks that was in 1979. There is some uncertainty from RT about whether it was the complainant or his younger brother GT who moved into bedroom 2 when the grandmother moved into the nursing home.
[23] Agreed Fact 3 of P5.
There appears to be no doubt that the complainant moved into bedroom 2 at some stage. If GT was in bedroom 2 then the complainant shared bedroom 3 with his next youngest brother ST.
The complainant’s evidence is that the accused interfered with him sexually in both bedroom 2 when he occupied that room alone and in bedroom 3 when he shared the room with his brothers.
I would regard the possibility of his being wrong about which bedroom he was in the when the abuse started as a minor matter which does not adversely affect his credit. However there are other inconsistencies which the accused points to suggesting that his credit and that of his mother is compromised.
There appears to be no dispute that the complainant’s parents went on a trip to Fiji leaving the three boys at home in the care of the accused. The parents won the trip through the father’s work and they took the trip on their own. There appears also to be no dispute that on a later year, possibly the following year the parents went again to Fiji, this time taking the three boys with them. RT believes that the first Fiji trip was taken in April or May of 1981. She says the trip with the boys was in September 1982. RT is criticised for her reasoning in fixing 1981 as the year of the first trip. Certainly there appears some confusion in her reasoning. She appears to have worked backwards from 1982. In her statement to police and in an earlier trial[24] RT said that the second trip to Fiji, the one the boys went on, was in September 1982, and that was BT’s last year at school. It is accepted by RT and BT that BT’s last year at school was 1983, not 1982. In 1982 he repeated year 11. He completed year 12 in 1983. RT agreed that she had overlooked that fact in her earlier statements. When it was put to RT in cross-examination that she had been wrong to fix 1982 as the second Fiji trip by reference to BT’s last year of school, she said that she was sure the trip was in 1982 but she must have thought that that year was expected to be BT’s last year at school. The Defence pointed to this evidence by RT as confused and as evidence of her being unduly dogmatic in her assertion that the second Fiji trip was in 1982, and by inference the first trip was the year before. I do not regard the evidence of RT and BT on this topic as materially detracting from their credit. I do not overlook the fact that BT turned 17 in November 1982 and any sexual activity involving him after that time was not a breach of s 50 of the Criminal Law Consolidation Act.
[24] T103-4.
Another criticism of RT’s evidence, and by implication BT’s evidence, is the evidence of RT that the party at which she met the accused and discussed the proposal for his tutoring ST was her 29th birthday. RT turned 29 in October 1974. The accused did not graduate as a teacher until 1978 and his first teaching year was in 1979. Both RT and BT understood that at the time the accused began tutoring he was a qualified and a practicing teacher.
A photograph of the birthday party was tendered.[25] Although I can gain no clear impression of the age of the mother in the photograph I think a clearer impression can be made of the age of the youngest son GT who is shown alongside his mother. The mother’s birthday and GT’s birthday are a day apart. If the mother was celebrating her 29th birthday GT turned four the following day. I think it is not unreasonable to estimate the age of GT in the photograph as about four. If, as I think is likely, the accused did not start tutoring until 1979, the mother had her 33rd birthday in October 1978 and her 34th birthday in October 1979. GT had his 8th and 9th birthday on those respective dates. I think that GT in the photograph is younger than eight or nine.
[25] P2.
If RT and BT are correct that they met the accused at the mother’s birthday then I do not think it can be the party depicted in the photograph. I see no reason to doubt their evidence that they met the accused at a birthday party for the mother, and that at that birthday party the possibility of the accused tutoring ST was discussed. However I do not believe it was the mother’s 29th birthday in 1974. The mother was not certain that the party was her 29th. She said it was not a ‘big’ birthday e.g. her 30th but she was not positive about it being her 29th.[26] She was not asked, and did not volunteer, that it could have been as late as her 34th birthday. She thought, and BT thought, that the relevant party was the one shown in the photo. I think they are both wrong about that.
[26] T76.
RT was asked questions about how old ST was when his tutoring began. ST turned 12 in October 1979 and was in grade 7 that year. RT thought that the tutoring began when ST was in an earlier year but she was not sure about that. She conceded she could be wrong.[27] I think she is likely to be mistaken about that. I think it is unlikely that the accused began tutoring before 1979, but there seems to be no reason why it would not have started in that year. The complainant says the sexual interference began when he was 13 and at High School. He started High School in 1978 and he turned 13 in November that year.
[27] T92.
Forensic disadvantage
It is necessary to appreciate that after a long delay such as exists in this case the accused is disadvantaged in a number of ways in presenting his defence. It is more difficult to challenge prosecution evidence. Being unable to support recollections he has with hard evidence the accused is less likely to be able to identify errors or inconsistencies in the evidence of prosecution witnesses. The corollary of that difficulty is that the accused is less able to marshal a defence. He is less able to give reliable evidence and is less able to call reliable witnesses and produce credible exhibits. Those disadvantages have long been recognised by the Courts (Crampton v The Queen (2000) 206 CLR 161; Tully v The Queen (2006) 230 CLR 234 at [181]; The Queen v Cassebohm (2011) 109 SASR 465 at [29]-[30]). As well as recognising the general sorts of ways in which an accused might be disadvantaged it is necessary to bear in mind the particular respects in which this accused is disadvantaged. I will attempt to identify those particular disadvantages.
The time of the tutoring could have been determined with precision if a timely complaint had been made. The nursing home records would have shown when the grandmother moved out of the family home. Passport and other travel documents would have fixed the dates of the two Fiji trips. I have not thought it necessary to spend time on discussing the date of a car accident the complaint was involved in but there are no longer detailed hospital records that would have fixed the date of that accident. Other students from the school where the accused was teaching might have been able to cast light on the circumstances of the complainant sleeping overnight at the accused’s parents’ house at Kurralta Park. The accused’s parents have died. They might have been able to assist the accused’s defence. I acknowledge that there may be other disadvantages that are not possible to identify.
I bear these significant forensic disadvantages in mind when assessing the evidence.
Further criticism of the complainant’s evidence
There are criticisms of the complainant’s evidence of the offending itself. The Defence suggests it is improbable that the alleged offending would have taken place without a word being said between the two participants. Surely, it is argued, something would have been said as soon as the accused started getting into the complainant’s bed. I agree that such silence is unusual but it does not cause me to doubt the complainant’s evidence. The complainant had a good relationship with his caring parents yet he never complained to them about what he says was going on. I think a failure to complain is a common feature of child sexual abuse.
There are four quite specific criticisms supported by agreed facts. While the complainant reported the allegations to police in 2012 he never told police or anyone else before 2016 that he had ejaculated into his pyjamas when the accused touched him. He had not told anyone before 2016 about the accused getting into bed with him but not touching him sexually. Before 2016 he had not mentioned the fellatio. Before giving evidence in this trial he had never told anyone that there were six to 12 times when the accused got into his bed without touching him sexually. These four matters are all agreed facts.[28] While I see the force of these criticisms I do not think that they significantly detract from the complainant’s credit. It is not uncommon for victims of sexual offending to recollect details of the offending sometime after they have reported the matter.
[28] Facts 10, 11 and 12 of P5.
Assessment of Witnesses
I find that BT was an impressive witness. He spoke in a direct and non-evasive manner. He was quick to admit the correctness of propositions put to him in cross-examination which might have called into question what he was saying. He frequently responded by saying ‘that’s possible’, ‘I agree with that’, ‘that’s fair’, ‘that’s correct’.[29] However in relation to the central allegations of the offending the complainant was firm, clear and unshaken. He appeared to be a truthful witness. So far as reliability is concerned he appeared to be to me to be doing his best to give an accurate account. I do not discount the Defence suggestion that he is wrong when he says his grandmother was living in the house and he was sleeping in bedroom 3 with his brothers when the accused began the tutoring. However that does not cause me to doubt his evidence about the abuse. I think that he might have been in both bedroom 2 on his own and in bedroom 3 with at least one of his brothers when the tutoring was taking place. I do not find that the late reporting of several details of the abuse adversely affects his credit.
[29] E.g. T34-35.
I find that RT was a truthful and largely reliable witness. That said, I think she is mistaken in a number of respects. For example I do not think she can have been discussing the possibility of the accused tutoring ST at her 29th birthday. The accused was not a teacher then and I find that he was a teacher when the tutoring took place. I think she is wrong to identify the relevant party as the one in the photo. She might be wrong about when her mother moved into the nursing home, or which son moved directly into bedroom 2.
I do not find that RT is mistaken about the dates on which she said the two trips to Fiji were taken. At all events I find that the trip the parents took with the boys was while the complainant was still at High School. Even if that trip was taken in his last year, 1983, rather than his penultimate year 1982, I am satisfied that the boys were left in the care of the accused no later than September 1982. The complainant was just short of 17 at the time. However I think it more likely that RT is correct when she said that the first trip to Fiji was in 1981. That year the boys were left in the care of the accused.
RT’s evidence confirms important aspects of the complainant’s evidence. The accused was sleeping overnight in the family home when the complainant was in High School. The complainant and his brothers were left in the family home in the care of the accused when the parents went to Fiji and the complainant was still at school then. The complainant slept over at the accused’s parents’ house with the accused on some occasions.
Findings of Facts
I accept the truthfulness of the complainant’s evidence about the accused committing the subject sexual offences against him. The complainant may be mistaken about the bedroom he was occupying when the offending began but in my view that possible mistake does not cause me to doubt that the accused committed all the subject offences. I am satisfied beyond reasonable doubt that the accused committed all the particularised offences and they occurred from when the complainant was about 13 to when he turned 17.
I find that each of the acts occurred with the frequency the complainant says they did. I find that the accused touching the complainant’s genitals (Particular (a)) happened many times over about four years. I find that the accused placing his penis between the complainant’s bottom (Particular (b)) occurred ‘sometimes’ or ‘quite a few times’ as the complainant says but certainly on more than one occasion. I find that the accused caused the complainant to touch his penis (Particular (c)) many times over a few years. I find that the accused performed fellatio on the complainant more than once but maybe only twice (Particular (d)). I find that sexual acts were performed by the accused on the complainant for a time after he turned 17 but that finding does not bear on the findings about the subject offending. Being satisfied beyond reasonable doubt that the accused committed the particularised sexual acts I find proved beyond reasonable doubt the charge of maintaining an unlawful sexual relationship with a child. The accused maintained the sexual relationship over a period of about four years.
Verdict
Guilty of maintaining an unlawful sexual relationship with a child.
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