R v Hare
[2015] SADC 157
•13 November 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARE
Criminal Trial by Judge Alone
[2015] SADC 157
Reasons for the Verdict of His Honour Judge Soulio
13 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of persistent exploitation of a child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) constituted by acts of indecent assault involving kissing the complainant, rubbing his torso, and touching his penis over his clothing, said to have been committed some 20 years ago.
Verdict - Not Guilty
Criminal Law Consolidation Act 1935 ss 50, 56; Evidence Act 1929 ss 34CB, 34M, referred to.
R v Keyte (2000) 78 SASR 68; R v Dossi (1918) 13 Cr App R 158; R v Seigner (2009) 103 SASR 207; R v J, JA (2009) 105 SASR 563; R v Davis (1995) 81 A Crim R 156; R v Liddy (No 4) [2001] SASC 152; R v Place [2015] SASCFC 163; Crampton v The Queen (2000) 206 CLR 161; R v Cassebohm (2011) 109 SASR 465; R v M, BJ (2011) 110 SASR1; R v C, G (2013) 117 SASR 162; R v Place [2015] SASCFC 163; R v Cassebohm (2011) 109 SASR 465; R v T, WA (2014) 118 SASR 382, considered.
R v HARE
[2015] SADC 157Background
The complainant, D, alleges that some 20 years ago, between 6 October 1995 and 31 December 1997, when he was between 11 and 13 years of age, he was sexually abused by the accused, Jeffrey Hare. The accused denies the allegation. Pursuant to section 7 of the Juries Act 1927 the accused elected for trial by judge alone. I am required to provide detailed reasons for the verdict.[1]
[1] R v Keyte (2000) 78 SASR 68 per Doyle CJ.
The Charge
The accused is charged with one count of persistent sexual exploitation of a child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (‘CLCA’).
The particulars alleged are that:
[The accused] between the 6th day of October 1995 and 31 December 1997 at Christies Beach and Hallett Cove, over a period of not less than three days committed more than one act of sexual exploitation of [the complainant], a person under the age of 17 years. It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a) kissing [the complainant] on the mouth on more than one occasion;
b) rubbing [the complainant’s] torso on more than one occasion; and
c) touching [the complainant’s] penis over his clothes.
Although the offence is alleged to have occurred within a specified range of dates on the Information, the precise date is not a vital ingredient of the particularised acts or the charged offence. The acts or occasions alleged must be identified and I must be satisfied that the particularised acts charged are proven beyond reasonable doubt.[2]
The Law
[2] R v Dossi (1918) 13 Cr App R 158 at [159]-[60].
General Directions
It is necessary to give consideration to the elements of the offence and to the onus of proof. It is necessary to consider the warning which is required, given the delay in bringing attention to the matters the subject of the present trial; and the use to be made of the initial “complaint” by D.
The accused is presumed to be innocent unless, and until, his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the Crown. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The prosecution must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied before I could convict the accused of the charge on the Information that the prosecution has proved beyond reasonable doubt each element of the charge.
It follows that if I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
Both the complainant’s father and the complainant, who was 30 years old when he gave evidence, did so with the benefit of a screen and in the presence of a court companion. That does not affect the weight to be given to their evidence, nor permit any adverse inference to be drawn against the accused.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
Section 34M Evidence Act 1929
The acts constituting the offence are alleged to have been committed between late 1995 and late 1997, some 18 to 20 years ago. The first time the matter was raised by the complainant was at the end of 2013, some 18 years after the first particularised date. The evidence as to the making of the initial complaint is D’s evidence that when he attended a police station in December 2013, to provide a statement in relation to unrelated allegations of a sexual nature regarding his brother, D made allegations against the accused that are the subject of this charge.
The Information upon which the accused was charged was first laid in this Court on 8 December 2014. Accordingly the provisions of s 34M of the Evidence Act apply.[3]
[3] R v Seigneur (2009) 103 SASR 207.
Evidence of the initial complaint by D was led in accordance with s 34M(3) of the Evidence Act which provides:
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
·when the complaint was made and to whom;
·the content of the complaint;
·how the complaint was solicited;
·why the complaint was made to a particular person at a particular time;
·why the alleged victim did not make the complaint at an earlier time.
I am required to remind myself that evidence of the initial complaint is only admitted to inform me as to the way in which the allegations first came to light, and potentially as evidence of the consistency, or otherwise, of the conduct of the complainant and the reliability of his evidence.[4] It is not admitted as evidence of the truth of what the complainant alleges.
[4] R v J, JA (2009 105 SASR 563 at [93].
Delay in Complaint
Here there was a delay of at least sixteen years from the time the acts were said to have been committed, and the making of the complaint that brought the matter to the attention of prosecuting authorities. The accused was first charged in this Court, about a year after the complaint, as I have said, on Information dated 8 December 2014.
Section 34M(2) of the Evidence Act provides:
In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
Further, s 34CB of the Evidence Act provides:
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note— See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b) must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
I bear in mind that there may be good reason to explain the delay in the making of a complaint.[5]
… It is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child … it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.[6]
[5] See for example R v Davis (1995) 81 A Crim R 156 p 158-159; R v Liddy (No 4) [2001] SASC 152.
[6] R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995) cited in R v Davis (1995) 81 A Crim R 156 p 158-159.
However, the delay in making a complaint may raise other issues. As was observed in R v Place:[7]
It is difficult as a simple matter of logic to direct a jury, pursuant to s 34M(4)(a)(ii) of the Act, that a long delayed complaint can constitute positive evidence of consistency of conduct by the complainant such as to positively bolster his or her credibility concerning the subject event. In such a situation, the use of the evidence referred to in s 34M(4)(a)(i) – “to inform the jury as to how the allegation first came to light” – may be left as the sole basis of admissibility, and it may be readily appreciated that that information alone, at least in some cases, may have very little probative value concerning the issue of whether the accused person is guilty of the crime charged.
[7] R v Place [2015] SASCFC 163 (11 November 2015) per Sulan, Peek & Lovell JJ at [14].
Ultimately counsel for the DPP placed no reliance on the complaint evidence, and the evidence did not assist me in any way other than to inform me as to the manner in which the matter first came to light.
Forensic Disadvantage
Further, I bear in mind that where there is a substantial delay in the making of a complaint, the defence will frequently consist of outright denials, because the passage of time denies the necessary forensic tools that contemporaneity provides.[8]
[8] Crampton v The Queen (2000) 206 CLR 161 at [45].
As Doyle CJ observed in R v Cassebohm,[9] the passage of time may cause the accused difficulty with recollection, and deny the accused the forensic weapons a timely complaint might allow him to assemble.
[9] R v Cassebohm (2011) 109 SASR 465; and see Tully v The Queen (2006) 230 CLR at [181].
Here, the lapse of time is such that there is a risk that the accused has suffered a significant forensic disadvantage. Because of such a delay there is almost always the potential that an accused has been deprived of the opportunity to adequately test the allegations. In particular, he may not be as well placed to call evidence to counter the allegations.
I find that the lapse of time is such that the accused has suffered a significant forensic disadvantage.[10] The case against the accused, with one particular exception, essentially consists of the complainant’s unsupported evidence. A potential witness has died. Records, including potentially, CCTV footage from the service station, inevitably will no longer be available. I approach the charge on the basis that I should give close scrutiny to the complainant’s evidence. I must take into account that forensic disadvantage when scrutinising the evidence.
The Elements of the Offence
[10] T 124 - Counsel for the DPP properly conceded that the accused had suffered a forensic disadvantage.
Persistent Sexual Exploitation of a Child
Section 50(1) of the CLCA provides:
An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
The elements of the offence, for relevant purposes, are that:
1The accused was an adult.
2The complainant was under the “prescribed age”. If the accused is in a “position of authority” that age is 18 years. In any other case that age is namely 17 years.
3The accused committed more than one act of sexual exploitation of the complainant over a period of not less than three days.[11]
An “act of sexual exploitation” is one where, if the act was properly particularised, it could be the subject of a “sexual offence”.
[11] R v M, BJ (2011) 110 SASR 1 per Vanstone J at [70]. See also R v C, G (2013) 117 SASR 162 at [82] and R v T, WA (2014) 118 SASR 382 at [79]-[82].
A “sexual offence” is defined as:
(a) an offence against Division 11 (other than ss 59 and 61) or s 63B, 66, 69 and 72; or
(b) an attempt to commit, or assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a previous enactment.
Elements one and two are not in dispute. The accused was an adult at the relevant time, having been born in 1955.[12] It is not necessary for the purposes of the trial to consider whether the accused was in a position of authority, as there was no dispute that at the time of the alleged acts particularised, the complainant was aged between 11 and 13 years, having been born in 1984.[13]
[12] Exhibit P4 Agreed Facts.
[13] Exhibit P4 Agreed Facts.
The issue to be determined is whether the prosecution has proven, beyond reasonable doubt, that more than one act of sexual exploitation took place over a period of not less than three days, as alleged by the complainant.
Indecent Assault
The prosecution case is that the accused committed three types of acts of sexual exploitation against the complainant, each of which amounted to sexual offences which, if properly particularised, would amount to offences of indecent assault contrary to s 56 of the CLCA. Each of these offences are “an offence against Division 11 or a substantially similar offence against a previous enactment” within the meaning of s 50(7) of the CLCA.
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. To establish the commission of an offence of indecent assault the prosecution must prove each of four elements beyond reasonable doubt.
The first is that there was an application of force. Here, the three types of acts alleged to constitute the assaults are that the accused: kissed the complainant on the mouth; rubbed the complainant’s torso; and touched the complainant’s penis over his clothes. Each act, if made out, would involve the application of force for relevant purposes.
The second element requires that the application of force must be intentional rather than accidental touching. Given the nature of the touching alleged by the complainant, were I to accept, beyond reasonable doubt, that such touching occurred, I would infer that the application of force was intentional.
The third element is that the application of force must be without lawful justification. Here, there was no suggestion, and could be no suggestion on the evidence, that there was any lawful justification.
The fourth element is that the assault must be accompanied by, or occur in circumstances of, indecency. I bear in mind that opinions may differ as to what is or is not indecent, but there are types of conduct which by any reasonable standard can only be described as indecent. Given the undisputed age of the complainant, consent is not an issue. The defence did not dispute that, if the acts alleged by D were committed, such acts, in each case, constituted an act of indecent assault.
In the present case the real issue is whether the prosecution has established beyond reasonable doubt that the alleged acts occurred.
Witnesses
The prosecution case comprised the evidence of the complainant, D, and P, who is D’s father. The accused gave evidence in his own defence and his son, J, also gave evidence in the defence case.
The Prosecution Evidence
Complainant D
D was born on 6 October 1984 and was between 11 and 13 years of age during the period particularised on the Information. D had an older brother, and a sister who was much younger. D said in evidence that when he was in year 6 and 7, he was 11 and 12 years of age. During that period of time, D lived with his parents in Hallett Cove.
D played rugby for the South Adelaide Rugby League Club, having started playing when he was about 8 or 9 years of age. Through playing rugby, he met the accused’s son, J, whom he referred to as “JJ” and who was the same age as D. They became good friends. D said he also met J’s father, the accused, through playing rugby.[14] D said that the accused attended at the rugby club to watch J play rugby. D gave evidence that his father, P, volunteered in various capacities.
[14] T 13 & T 15.
D gave evidence that he had spent considerable time at J’s house. He said, “We’d just started playing rugby, we did preseason rugby and once we became good friends, yeah, we started going over and I started staying at his house.”[15] D said he stayed at J’s house mainly after rugby games and during school holidays.[16] D said that when he went over to J’s house the accused would take them go-karting, tobogganing or to an adventure park.[17] D said his brother B would also go to J’s house and spend time with J. He said they were all friends and there were times when all three of them stayed at J’s house.[18]
[15] T 13.
[16] T 13 & T 14.
[17] T 14.
[18] T 14.
D said that J had lived in two houses during the time he knew him. The first house (house 1) was located in Christies Beach, and was a two-storey house with a spiral staircase.[19] D said J’s older sister, A, who was four or five years older than J, also lived at that house. His evidence as to the extent she was present, and the frequency he saw her, was somewhat confused.[20]
[19] Exhibit P4 Agreed Facts - House 1 was on Christies Avenue, Christies Beach, and was the accused’s registered address between 23 April 1996 and 23 May 1997.
[20] T 14 & T 15.
D said that when he was 12 years of age the accused and J moved to a second house (house 2). D said he knew and remembered the house clearly. He described it as a single storey house located just off Beach Road that had a beige or yellow gate and tin roof. He said Beach Road was the main road, and the house was located on Taunton Street or Road, which turned off Beach Road.[21]
Incidents at House 1
[21] T 20 & T 21. Exhibit P4 Agreed Facts - House 2 was located on Taunton Parade Christies Beach and was the accused’s registered address from 23 May 1997.
D gave evidence that when he went to visit J they would usually play PlayStation game or pass the rugby ball, and “just muck around”. D said the accused would sit upstairs and call out to D to go upstairs.[22] D said that the first time he recalled spending time alone with the accused was about the fourth time he had gone to J’s house. On that particular occasion, D said the accused called him upstairs while D and J were in the lounge room. D said he went upstairs. D described the area where the accused was sitting as being in the top section of the house. D said there were rooms at either end of the house, and an open space in the middle where the accused sat at a computer desk. D said there was a large notepad and a pen on the desk but no computer.[23]
[22] T 15.
[23] T 16.
The accused asked D to sit on the accused’s knee, which D did. D said the accused talked to him for a while, but he could not remember what the accused was talking about at that time. The accused then kissed him on the lips. D said J was downstairs in the lounge room at the time with D’s brother and they could have been playing the PlayStation.[24]
[24] T 16.
D said the kiss lasted “only a short period, it was a quick kiss on the lips.”[25] He said he did not remain on the accused’s lap for much longer after the kiss as he was shocked by it all. He said the accused told him he could go back downstairs. D said he did so, and resumed playing PlayStation. He said he did not say anything to J or to his brother because he “didn’t know what had really happened”.[26]
[25] T 16.
[26] T 16.
On that first occasion D said he was sitting on the accused’s right knee with his own legs positioned across the accused’s right knee. He said one of his legs was over the accused’s and the other was resting between the accused’s two legs.[27] D said he was facing the accused and talking to him, and there was a wall in front of them. D said the accused was sitting in the chair facing towards the desk and D’s left shoulder was closest to the accused’s chest.[28] He said he remembered that the accused touched him all over his body.
[27] T 19.
[28] T 19 & T 20.
D said that that was not the only occasion where something like that happened in house 1. He was asked the following:[29]
[29] T 20.
QWhat else happened.
AThe same thing would happen pretty well whenever I went over there. The same thing; he just used to call and I’d have to go upstairs and sit on his knee.
QHow regularly were you going over to the house.
AMaybe every – probably every second week maybe, because [J] and I were good friends.
QDid it happen every time you went over or just sometimes.
ANo, I’d say every time.
QOn those occasions, are you able to say generally what happened.
ASame thing every time; he’d touch me all over my body, he’d kiss me. He would make me feel uncomfortable because when he did kiss me, I could feel – he had a bushy beard and he’d just push it up against my face, and it would smell like cigarettes and that’s why I remember when he used to kiss me.
He said he sat on the accused’s knee and the accused would just generally rub his hands over the top section of his body; all over and mainly on the front of his body.[30]
[30] T 15.
D had drawn a plan depicting house 1 that was admitted into evidence.[31] He said the television was in the lounge room against the wall where the carport was marked on the plan. He marked a wall between the lounge room and the room on the left of the plan to divide the house into rooms. He did not think there was a hallway. D said he knew there was a room off to the side of the kitchen but he could not remember the room much.[32]
[31] Exhibit P1.
[32] T 18.
D said the second page of the plan showed the upper floor of the house. He said he was aware that A’s bedroom was to the left but he said he did not think he ever went inside that room. D said he did not know who used the bedroom shown on the right side of the plan.[33]
House 2
[33] T 18 & T 19.
D drew a plan of house 2 which was admitted into evidence.[34] On the top left of the plan, D marked ‘Witton Street’. D said in evidence that was an error and that it was not ‘Witton Street’ but rather ‘Tauton Street’. D also marked the accused’s desk and the accused’s room on the plan. When asked whether he had ever been into the accused’s room, he replied “Not really, no. Never really went into Jeff’s room, no.” D agreed that at house 2 he played PlayStation games in the lounge room, which he had marked as ‘open lounge’ on the plan.[35]
[34] Exhibit P2. See also T 28.
[35] T 22. See also Exhibit P2.
D described the first occasion that he recalled something that happened at house 2. He said:[36]
Similar; would be over spending the weekend with J. We’d be playing in the lounge room or mucking around and Jeff would call me into the room. A room just like the other one; it had a computer desk. We’d sit at the computer desk, and I used to try not to go to Jeff as much as I could because I knew what Jeff was going to do, so I tried to ignore him as much as I could.
[36] T 21.
D gave evidence of an occasion when he had to go into the room where the computer desk was situated. D said the accused sat D down on the accused’s knee, put his hands all over D, rubbed D’s body and kissed him. He said that he specifically recalled that particular occasion when the accused kissed him, saying that, “It was longer, with an open mouth on my mouth and I would keep my mouth closed”. In relation to how long the kiss lasted on that occasion, D said “It was longer, it was much longer. I don’t know exactly how long but it was longer than the first one. It wasn’t just a peck on the lips.”[37]
[37] T 21 & T 28.
D said on that occasion, he sat on the accused’s knee with his body positioned the same way as on the first occasion at house 1. He said his brother could have quite possibly been at the house. He said he and his brother spent most weekends there. D said that the room in which the incident occurred was just a room or office. He could not remember anything being there, just a computer desk and a chair but no computer.
D was asked the following:[38]
[38] T 23.
QWas that the only occasion that something like that happened at house 2.
ANo, it was every time I went over there it was the same thing, he’d sit me at the desk. That was the longest kiss I can – yes.
QJust before, I move on, this kiss that you are talking about at house 2, do you remember any conversation that you had with Jeff.
AJust be general conversation. It’d just be, yeah, sit on the knee, just feel uncomfortable all the time. I didn’t want to really talk about anything.
QDo you know how long on that occasion you were made to sit on his knee.
AWould always be about five minutes or so.
Service Station Incident
D said that there were occasions when the accused had driven him home from rugby. He said that the accused had a station wagon that was a beige or yellow colour.[39]
[39] Exhibit P4 Agreed Facts - the accused had registered in his name a yellow Ford station wagon from 27 November 1957.
D gave evidence about an occasion when something happened in that car. He said they were coming back from a rugby game and stopped at a ‘Quik’ Service Station located in Christies Beach. He said it was in the same street as the police station.
D was sitting in the back seat behind the driver. After the accused had stopped at the service station, J went inside, and the accused asked D to jump through to the front seat and sit on the accused’s lap. D did so. D said he sat on the accused’s lap and the accused rubbed his hands on D’s body and touched him as he normally did, all over his body. D said that on that occasion the accused put his hands on D’s legs and also fondled D’s penis over the top of his clothing. D said the accused rubbed his penis for about 30 seconds, and that he tried to push the accused’s hand away.[40]
[40] T 23 & T 24.
D said J came out of the service station at some stage with some food, and got into the car. The accused told D to return to the back seat, which he did. D said J did not say anything when J got back into the car. D said this occurred about a couple of weeks after the incident D described as the open mouthed kiss at house 2. He said there were no other incidents in the accused’s car.[41]
[41] T 24 & T 25.
D described another occasion during which he was touched by the accused. He said that occurred at Christmas time at D’s house at Hallett Cove, when D was in year 7 at school. D said his father used to put on a barbecue at Christmas time, and neighbours from their street attended. He said his father invited J and the accused that year.[42]
Christmas Party Incident
[42] T 25.
D recalled there being quite a few people at the party, and that everyone was outside on the front lawn. D said he was playing outside when the accused asked him to go inside. He said the dining room was straight through just near the front door.[43] D said the accused sat down on a chair in the dining area and asked D to sit on his knee, which he did. He remembered that his legs crossed both of the accused’s legs. He said he did not sit on the accused’s lap for long, maybe a minute or two. D said his father walked in while the accused was rubbing D’s chest. D said his father told the accused, “Fuck off and get out of my house.” D said he was scared and did not know, or did not recall, whether the accused had said anything in response. D said the accused got up, went outside, collected J and left. D said his father saw what had happened and was pretty angry but he said he did not speak with his father about what had happened.[44]
[43] T 25 & T 26.
[44] T 25, T 26 & T 27.
When asked if D saw the accused after that incident, D said he only saw J. He said J was allowed to stay at their place but he was never allowed to go back to J’s house.[45]
Complaint Evidence
[45] T 26.
On 22 December 2013 D went to a police station to provide a statement about unrelated allegations of sexual offending being made by his brother. D said he took the opportunity at that time to tell police about the incidents the subject of the current charge.[46] A couple of days later D returned to the police station and made a second statement.[47]
[46] T 27.
[47] T 27.
When asked why D did not tell someone about the incidents sooner he said, “Embarrassing. I should have, but it’s something that I was embarrassed about”.[48]
[48] T 28.
Cross-examination of Complainant D
D was cross-examined about the house plans of both house 1 and house 2. D essentially disagreed that there might be errors in the plans he drew. He said he believed his plans were correct.
House 1
D agreed that from the age of 11, he and J became best friends and played rugby together. He would stay at house 1 on Friday nights before rugby, Saturday nights after rugby and on weekends. D said he would also stay for a few days during school holidays. He said that the accused would sometimes ask D to ring his father to obtain permission to stay longer. He agreed that he and J spent a lot of time with each other, and that D spent a fair bit of time at house 1.[49]
[49] T 31, T 32 & T 33.
In relation to the upstairs layout of house 1, D said that the spiral staircase was at the side of the house near the front door; that A’s room was on the right side; and that there was another bedroom on the right on the same side as the driveway. D disagreed with the suggestion that A’s room was on the other side, and the other bedroom should be shown on the left-hand side of the plan.[50]
[50] T 29. See also Exhibit P1.
In relation to the downstairs layout of house 1, D agreed that there were three rooms: a lounge, a kitchen and an area which D had simply marked on the plan as ‘room’.[51] When it was put to D that in the area marked ‘room’ there were three rooms running down the left-hand wall of the house, he said what he drew is what he believed to be correct. He conceded that there could be rooms there but he said he was confident as to the accuracy of his drawing. It was put to D that along the left-hand wall there was a storage room next to the kitchen, and towards the front door along the left-hand wall was the accused’s room. When asked to comment on the suggestion that there was a storage room, D said, “You can assume that if you like.” He did not disagree with the suggestion that one of the rooms belonged to the accused but reiterated that he was confident in the accuracy of his drawing. He said he did not mark the accused’s room on the plan because he did not know which one it was.[52]
[51] T 29 & T 30.
[52] T 29 & T 30.
D was asked whether or not his drawing lacked detail, but maintained that his drawing was accurate. He conceded that there may have been more rooms but said again that what he drew what was he knew.[53]
[53] T 30 & T 31.
D agreed that there was a television unit where the television sat, a PlayStation and a lounge suite in the lounge room. D disagreed that there was a desk against the back wall where D had marked a patio. D said he strongly disagreed with the suggestion that there was no desk upstairs at all and disagreed with the suggestion that there was a lounge suite or lounge chair upstairs.[54]
[54] T 34 & T 35.
It was put to D that at the front left-hand corner of the plan, along the left-hand wall, was a third room where a man named Darren was staying. He had not marked that area as a room, but conceded that it was possible there was a room there. D also conceded that during the times when he went to the house to play with J, there could have been a man named Darren staying at the house.[55] D said he knew the name Darren but did not know the man.
[55] T 31.
D agreed that the accused gave him and J a lift to rugby from time to time. He disagreed with the suggestion that Darren travelled to rugby in the car. He said Darren never went to rugby at all.[56] D agreed that the accused’s partner, Celeste, was at the house from time to time.[57]
House 2
[56] T 32 & T 33.
[57] T 45.
D agreed that he attended at house 2 often and that he was familiar with the layout of the house. He was cross-examined about the plan of house 2, which he maintained was accurate. He denied that what he had depicted as a carport was in fact a room with a spa; that the area containing the accused’s desk had a toilet and shower in it; and that to the right of the accused’s room, was a room where Darren was staying. He disagreed with the suggestion that the area he had marked, as containing the accused’s desk was the accused’s bedroom.[58]
[58] T 35 & T 36.
D said he was not sure if J’s sister, A, lived at house 2. He said A was hardly ever at either house. He disagreed with the suggestion that A’s room was in fact located where he had depicted a kitchen.
Service Station Incident
D maintained his allegation that that incident had occurred when the accused and J were living at house 2; occurred after a game of rugby he had played with J; and that they were probably going back to J’s house. D agreed that the service station referred to in his evidence was on the same street as the police station. D disagreed with the suggestion that the Quik Service Station was on Beach Road, and maintained that it was on Dyson Road.
D agreed that the vehicle being driven by the accused stopped in the car park located at the front of the service station at about 6pm. He said as soon as J left the car the accused called him into the front seat, and D did not see J go inside.[59] He agreed that the service station, including the car park and bowser area, was well lit.[60]
[59] T 38.
[60] T 39.
D maintained that he climbed through from the back seat to the front between the two front seats. He maintained that the accused was seated in the driver’s seat and he sat on the accused’s lap, despite the position of the steering wheel. When it was suggested that that did not happen, D said it did happen and he was 100% certain that it happened, and that it was “a certain part of his memory” that the incident took place on Dyson Road and not Beach Road.[61]
[61] T 39.
D left Adelaide in 2002 to live in Queensland. He had finished year 12 in Adelaide and remained friends with J, who had continued to visit D’s house up until the time he left for Queensland in 2002. D disagreed with the suggestion that after the Christmas party he described, there was no change in the relationship he had with J. D said he didn’t go to J’s house after the Christmas party incident, as his father would not let him. However he said that J was still allowed to visit D’s house.[62]
[62] T 44.
D strongly disagreed with the suggestions that the accused did not kiss him at any stage in any inappropriate way; that the accused never touched D on his body or his penis in any inappropriate way; and that no incident occurred at a Christmas party as he had described.[63]
[63] T 44 & T 45.
D was cross-examined about the accused driving him to and from rugby. D agreed that J was always present. D agreed that his brother B would often be in the car with him as well if he was staying at J’s house. In relation to the Quik Service Station incident, D said his brother was not present on that occasion.[64]
Initial Complaint
[64] T 46.
D agreed that after he first reported the incidents to the police in Cairns, he went back to provide a detailed statement. He said that by that stage, he realised that it was time to tell the police everything that had happened to him, and he wanted to get it off his chest.[65] He said that he was told police the truth, and that he had checked the statement for accuracy.[66]
[65] T 39.
[66] T 39 & T 40.
Regarding the first incident at house 1, D agreed he told police:
Jeff called me upstairs so I went to see him. He asked me to sit on his knee, so I did. He was just generally chatting with me for about five minutes, then he kissed me on the lips. He kissed me only the once and it was a short kiss for about a second but I remember being very shocked because I didn’t expect it.
D agreed that he had made no mention about any touching. He agreed that was different from what he told the court.[67]
[67] T 42 & T 43.
In relation to the second incident involving the longer kiss, it was put to D that he did not tell the police that there was any touching associated with that incident to which D responded, “I should have.”
The following was put to D as being what he told police:
I remember that I knew what Jeff wanted to do to me so I just kept ignoring him. He then just constantly kept calling out to me so I eventually went to him. The reason I remember this time is because this was the first time that he had kept his mouth opened, pressed against my lips for a lot longer than he had previously done in the past and it made me feel sick.
D agreed that that was in his statement and that there was no mention in that statement of any touching but he said he should have told police about that.[68]
[68] T 43.
D was cross-examined about what he told police on 24 December 2013 regarding the location of the Quik Service Station. He agreed he told police: “Jeff stopped at a Quik Service Station on Beach Road, Christies Beach and he sent J to buy some things”. He agreed that his evidence in court was that the service station was not on Beach Road but on Dyson Road.[69]
[69] T 41.
D said that it was an incident that stuck in his memory because it was the first time anything like that happened. He was not sure whether he told police, in his statement in 2013, that the incident involved touching. He said every incident involved touching.
D was also cross-examined about his evidence that the accused had touched D’s penis. D agreed that the only time he was touched on the penis by the accused was the Quik Service Station incident. D agreed that if the accused touched him on the penis any other time that that would be something he would remember. He said that it was not a possibility that the accused touched him on the penis on any other occasion.[70] That evidence was inconsistent with the evidence of D’s father, to which I refer below, regarding his observations of the accused’s actions in the dining room at D’s house on the evening of the Christmas party.
Re-Examination of Complainant D
[70] T 43 & T 44.
D was re-examined in relation to whether he mentioned to police any touching on the first occasion when he was kissed at the first house; and the occasion when he was kissed with an open mouth at the second house. D said he recalled mentioning to police that he was touched as a regular occurrence. D said he told the police that the accused would rub his chest, rub his body, made him sit on his knee and kiss him. He said he told police that had happened every time that he went to the accused’s house.[71]
[71] T 45.
In relation to the man named ‘Darren’, D agreed that he had said to police that Darren did not go to rugby. When asked whether he had ever seen Darren before, D said he remembered the name but he did not remember Darren being around much. D said he thought Darren “would have been an adult”.[72]
Complainant’s Father P
[72] T 45.
At the time of giving evidence, P lived in Cairns and had his own electrical business. P gave evidence that D completed an apprenticeship with him. P said he had separated from his wife in about 1993 and had raised his two sons.
P said that between 1995 and 1997, he lived at Hallett Cove with his two sons. During that period D was playing for the South Adelaide Rugby League Club. P said his own involvement included coaching, running water out during the games, and catering for the club.[73]
[73] T 47.
P said he was aware that D had a friend named J, whom he knew as ‘JJ’. P said that the accused did not have involvement in the rugby club, but rather just dropped J off at the club. P met the accused because both J and D were state players, and were on the same team.[74]
[74] T 47 & T 48.
J visited and spent nights at P’s house. Both sons were friends with J. They visited J at the accused’s house. They stayed overnight usually on Friday and Saturday nights. P said there were occasions when they would stay for two nights. If his sons stayed one night, P said he would usually get a call the next night to ask to extend the stay. He said if he did not let D stay then B would have stayed on his own.[75]
[75] T 48 & T 49.
P said he had visited the accused’s two houses. The first was opposite a football oval in Christies Beach. The second house was on Witton Street.
P said there was an occasion when he invited the accused and his son, J, to his house for a Christmas party barbecue he was hosting, in 1995 or 1996 when D would have been 11 or 12 years of age.[76] There were about 15 adults, and a number of children at his house.
[76] T 49 & T 50.
P gave evidence that at one point in the evening he went through the lounge room to the dining room and saw D on the accused’s knee. P said he stood for a while and tried to comprehend what was going on. He said he saw the accused rubbing D’s thigh, inner thigh and lower torso area. P said when the accused noticed he was there, the accused pulled his hand away. P said that he said to the accused, ‘What are you doing?’ to which the accused replied, ‘I’m only cuddling [D]’ and laughed. P said to D, ‘Get the fuck off his lap’. P said to the accused, ‘What’s a grown boy doing on your lap?’ to which the accused replied, ‘What’s your problem? I’m only cuddling him’. P told the accused to ‘Get the fuck out of my house’.
P said the accused left straight away and he never saw the accused again.[77] P said he asked D, ‘Did anything happen?’ to which D replied, ‘No, he was just rubbing me’. P said he left it at that.
[77] T 51.
P said his sons were not allowed to visit the accused’s house again. He said nevertheless J still visited P’s house.[78]
Cross-examination of P
[78] T 51 & T 52.
P agreed that he was at the police station in Queensland when D was making his statement. P denied he had had a conversation with D in the car on the way home, in which he had asked D what it was all about. P agreed that D had given him a copy of D’s statement to police to read. P agreed he had read the statement, but only briefly. He said the contents were a shock to him.
He agreed that he had provided two statements to police, one in which he stated that he had seen the accused stroking D’s groin and inner thigh region with his left hand; and one in which he referred to the accused using his right hand to do so. He said that after making the first statement, he went home and he read it. He said he then questioned himself as to what he saw, and then went back to the police station and asked police to amend the statement.[79]
[79] T 55.
The following was put to D:[80]
[80] T 55 & 56.
QYou, in your own mind, are clear that in a nutshell what you saw was Mr Hare rubbing the penis, the outside area of the penis of your son.
AHe sat down and he was on top of his torso, in between his legs, I’m a hundred per cent sure.
QYou talk about his groin, don’t you.
AThat’s right.
QThat’s touching his penis over the top of his –
AYes, you could say that.
QI’m going to suggest to you that didn’t happen, you disagree with that.
AYou can suggest it but I just told you it was 100% what I saw.
QSo you disagree.
AYes.
P agreed that the accused only attended one Christmas party. He denied that the accused attended that party with a man called Darren.
P disagreed that J ended up staying that night at P’s place. P agreed that J continued to go to his place after the incident and that J remained good friends with both sons until D moved to Queensland in 2002. P disagreed with the suggestion that his sons continued to visit J’s house until D left in 2002.
Defence Evidence
The Accused
The accused was 60 years of age at the time of giving evidence. He had moved to Queensland from South Australia some 18 to 20 years earlier. He had worked at Roxby Downs, but initially said in evidence that that work ended as a result of an injury he sustained in about 1996.[81] He moved into house 1 at Christies Beach. He lived there with his son, now 31 years of age, and his daughter, now 33 years of age, and his younger brother’s friend, Darren Kaye. He said Darren was killed in a motor vehicle accident in 1996 or 1997. However the accused said that after he moved to house 2 Darren lived there for a few years.[82]
[81] T 63.
[82] T 65.
The accused was shown D’s plan of house 1.[83] He described differences between the layout shown on the plan, and what he said was the actual layout. He said there were in fact three rooms down the left side of the house as depicted: his room; Darren’s room and a storeroom for his catering business. He pointed out other inaccuracies.
[83] T 65. See also Exhibit P1.
I accept the accused’s evidence in relation to the layout of the house. It is not surprising that his recollection of the house, as a permanent resident of the house, would be more accurate than that of a young visitor with access to only some of the rooms.
After about 12 months living at house 1 the accused moved into house 2. He described the house as having a self-contained unit to the right. Next to that, was a self-contained kitchen, then a room where Darren slept. He said his son and daughter lived with him at the house. His daughter’s bedroom was located where the plan was marked ‘kitchen’.
The accused gave evidence that his son became involved in a rugby club, the ‘Bulldogs’. His son became friends with other boys he played rugby with, and in particular became good friends with B and the complainant.[84]
[84] T 68.
There were occasions when D would stay at the accused’s house at Christies Beach, generally on Friday or Saturday nights and would go home on Sunday afternoon or evening. He said D would also stay on occasions during the school holidays. When B and D stayed on Friday nights they played rugby on Saturdays.
In 1996 and 1997, he owned a yellow Ford wagon and was involved in transporting the boys to and from their rugby games.[85] The accused said that when going to the rugby games he, his son B, and D, and Darren would generally go together. He said that on most of the occasions he took the boys to rugby, he would also drive them home afterwards, but there were occasions when other parents would also take them.[86]
[85] T 69.
[86] T 70.
When he brought the boys home after rugby, he said he would sometimes stop somewhere on the way home. He did not remember any specific occasion but said they were always getting things to eat or drink. He agreed that it was possible that from time to time he would stop somewhere like a service station on the way home from rugby. The accused said he had never touched D inappropriately in any way, on such an occasion, or at all.[87]
[87] T 70.
When asked what the boys would generally do at house 1 he said they could be across the road playing at the football oval or in the lounge room playing PlayStation and Xbox games. He said the boys would never play upstairs as there were bedrooms there, unless they were going to their bedrooms for something. He said they would play in the lounge room where the television and games were, or would play outside.[88]
[88] T 71.
D denied ever having been upstairs at a desk and calling D to come upstairs to join him. He reiterated that he had never touched D inappropriately in any way. He said he did not touch D’s penis.[89]
[89] T 71.
He said that on one occasion he had been invited to a party at the home of D and B. He described the party as a street party. The road was blocked off. There were neighbours in attendance. He said he went to the party with his son J, and Darren. He said he arrived at about 9 o’clock. He said nothing remarkable happened during the course of the party. He said he left the party around midnight to 1 o’clock in the morning with Darren. He said his son, J, stayed the night.[90]
[90] T 72 & T 73.
In relation to D’s evidence about an incident that occurred in the dining room between D and the accused, the accused said nothing like that happened. The accused said at the end of the night, people started to drift off. He and Darren decided to go home at around 12 to 1 o’clock because they had had too much to drink or because people were leaving. He said he drove home.[91]
[91] T 73.
He said nothing changed in the routine of comings and goings between J and D and his brother after the Christmas party. He said they continued to visit his house as they were doing before the Christmas party. He said his son continued to visit D’s house.[92]
Cross-examination of the Accused
[92] T 73.
The accused said he had obtained custody of his two children when he was living at a unit in Morphett Vale before living in house 1. His son and daughter were about 8 or 9 years of age and 10 or 11 years of age, respectively.
The accused said he did not remember what year he bought house 2 and could not say when he moved in because he did not remember the dates and times. When asked whether it was possible that he had worked at Roxby Downs a couple of years before he moved into house 2 the accused said he thought he had the accident in 1996 but conceded that it was possible that it may have been before that.
The accused said Darren lived with him for between five and seven years. He said Darren worked at Walkers, a manufacturing company located at Lonsdale not far from where they lived. The accused agreed that he worked at Walkers at some stage, but could not remember whether his period of employment overlapped with Darren’s period of employment. He said he could not remember working with Darren at Walkers. He said he was not suggesting that Darren was not there but rather that Darren could have been working in a different department.[93]
[93] T 75.
He rejected the suggestion that Darren had never lived with him on a permanent basis in house 1 or house 2 and said apart from the first two or three months when he went to Adelaide, Darren lived with him until the day he died.
During the 12 to 18 month period working at Roxby Downs, the accused had lived in Andamooka for about six months, and was then provided accommodation on site for another six months or so.
He agreed that J was 10 to 12 years of age when he was living at Christie Avenue, and A was two years older. The accused gave evidence that B quite often went to work with him, while D and J stayed home.
The accused was cross-examined as to how he knew Darren had died. The accused said he was living in a unit at Andamooka and working at Roxby Downs when police knocked on his door and informed him of Darren’s death. He said he did not go to Darren’s funeral because it was held in Brisbane. He could not remember the year in which Darren died.
While living at Christie Avenue, he worked on weekends in his catering business. He said most of his preparation was done at home during the day and if he had a function at 7 o’clock, for example, he would arrive at about 4 o’clock to set up, serve, pack up and go home.[94] He said that occurred on weekends about every fortnight. He said if he had to work at night, Darren would look after D & J.
[94] T 78.
He gave evidence that at house 1 there was a television in the lounge room which he thought was the only television in the house. The accused said that at house 2 there was one television in the dining area and Darren had a television in his room.
The accused disagreed with the suggestion that there were numerous occasions at both houses where he was home with only J and D present or on occasions when B was present but when Darren was absent. He conceded that it was possible that there was an occasion where Darren was not in the house, and when he was at home with J and D.
It was put to the accused that in the first house, he had a computer desk upstairs where he asked D to sit on his knee, kissed him and rubbed him on many occasions. The accused denied that and said nothing like that ever happened.[95]
[95] T 88.
The accused conceded that it was possible that there were one or two occasions, or more, when he drove D and J home from rugby without D’s brother B being present. He agreed that they would sometimes stop for food at the Quik Service Station on Dyson Road but disagreed that he sent J in to get food.
It was put to the accused that in around 1997, when D was 12 years of age, the accused drove D home from a rugby game, stopped off at a Quik Service Station and called him into the front seat, after J had gone inside, and touched D on the penis over his clothing, kissed him and rubbed him on the torso. The accused denied that anything similar had ever happened. He maintained he had never touched D inappropriately at all, nor kissed him on the lips.[96]
[96] T 90.
In relation to the attendance at the Christmas party, and to the evidence that he may have had too much to drink, he said he could not remember, but said he had driven home. He thought he had only taken a six pack of beer with him, but conceded that he could have been over the limit. He denied the suggestion that he had D on his lap in the dining room and rubbed him over his body when P walked in and saw him. He denied the suggestion that he said to P “I’m just cuddling [D]”.[97]
[97] T 89 & T 90.
The accused said that P’s evidence false. He said he and P never had a bad word until the charges were laid, and he still has not spoken to him. The accused denied having had an altercation as described by P.
The Accused’s son J
J was born on 18 August 1984 and was 31 years of age at the time he gave evidence. He said the first house he lived in with his father was a unit at Morphett Vale and he then moved with his father to Christies Beach (house 1) when he was about 10 years of age. J said Darren Kaye, who was one of the accused’s family friends, was also living at the Morphett Vale unit. J said he was about 10 years of age when he met Darren Kaye. J said he probably lived there for about two years before his sister moved in.
He could not remember the house number or street name but said that the house was across the road from the Bice Oval football oval in Christies Beach. He said Darren Kaye and his sister, A, also moved to live there with him and his father.[98] He said he lived at that house for two to three years.[99]
[98] T 93.
[99] T 95.
Through playing for the South Adelaide Bulldogs club he became friends with D. They started having sleepovers, went to football together, and he met B through his friendship with D. He said he went to their house on occasions, and they would also go to his house. He became friends with both of them, and they have remained friends throughout. He said he had not spoken to D for about a year or more, but had on occasions spoken to B who still lived in Adelaide.[100]
[100] T 94 & T 95.
When J moved from the unit to house 1 B and D would have sleepovers at that house, mainly on weekends. J gave evidence that at some stage, his family moved from house 1 to house 2 where he lived for seven years.[101]
[101] T 95 & T 96.
At house 1 he and B & D played PlayStation games, kicked a football went to the park, rode bikes and played rugby together.
J gave evidence that at house 1 there was a foyer where he had his games unit that separated his room from his sister’s room upstairs. He said that there was a spare television upstairs. He said they had a lounge room downstairs but the television and stereo set up with his PlayStation were in the foyer or the spare room.[102]
[102] T 96.
J described errors in the house plans drawn by D. He said when Darren went to live with them, A was no longer living there. Darren lived in a self-contained unit in the area marked erroneously on the plan as ‘Jeff’s room’. J said the accused’s room was in the area marked ‘Jeff’s desk’. J noted that the plan did not mention Darren’s room or his sister’s room.
J gave evidence that he was aware the accused went to work in Roxby Downs when he and the accused were living in house 2. He said his father worked for about two years although he was not absent the entire time. Rather he worked four weeks on, and two weeks off, or four weeks on and one week off. He said his sister and her boyfriend looked after him at times.[103]
[103] T 99.
J said at some stage the accused returned to reside in the house full-time and started a catering business. J said the catering business would be busier at some times such as weekends, and that the busiest time was the three months before Christmas.
J said he had accompanied the accused on catering jobs, and gave evidence that as a result he now worked as a chef. He said on occasions, if B and D stayed over, they would sometimes go with him, help out with jobs and get paid pocket money for doing so.
In relation to travel arrangements for rugby games, J said his father would take him to rugby, or otherwise his friends’ fathers would do so. He agreed that D would sleep at his house before rugby. When that happened, the accused would take them to rugby, and after the game would take them back home. If there was an occasion where both B and D were staying over before rugby, all three would travel in the same car.[104]
[104] T 102.
J said there were occasions after rugby when he might stop off somewhere on the way home for food. He said the accused would usually get takeaway food from McDonald’s after a game. He said it was not unusual for him to stop off somewhere on the way home.
J gave evidence that he had attended several parties at B and D’s house. He said he had been to barbecues, Christmas parties, and New Year’s Eve firework parties. He said he had attended at least a couple of Christmas parties in particular. Following such parties, J said he would stay the night at B and D’s house.
J recalled the accused attending parties at P’s house with him on three occasions. He said Darren had also been there before. J could not recall an occasion when he attended those parties at B and D’s house where he had been unexpectedly taken home by his father.[105]
[105] T 103.
J said his visits to B and D’s house, and their visits to his place, occurred constantly throughout the period of their friendship. He said nothing caused him to think there was any change in the nature of the interaction he would have with them.[106] J said he never saw anything inappropriate or sexual in nature happening between the accused and D.[107]
[106] T 104.
[107] T 104 & T 105.
J said he became aware that D was moving to Queensland. J said he maintained contact with D after he had moved and there wasn’t anything different about their friendship, apart from being in different states.[108]
Cross-examination of J
[108] T 103 & T 104.
J was asked in cross-examination whether there were occasions at both houses where the accused would call D into a room. J responded that the accused had called D or B, but it was nothing out of the ordinary. J conceded that there was a possibility that when D was visiting on occasions, there were times when D was called into a room by the accused when J was not present.[109]
[109] T 105.
J agreed that it was possible that there was a time in the later years when it appeared to him that B was visiting J’s house more often than D. J agreed he probably spent more time generally with B. J agreed that he continued to see D and stayed overnight at B and D’s house. J said however that individually or together B and D continued to stay over at his house.[110]
[110] T 105 & T 106.
Whilst J conceded that it was possible that in the years leading up to their departure for Queensland there was a point when only B, and not D, was going to his house, he said that if that was happening, he would have asked, ‘what’s wrong with your brother?’ as they were all friends.
J said that the accused was at most of the parties at Christmas time when he went to B and D’s house. He said he remembered Darren going to a New Year’s Eve party. He said the New Year’s Eve party was a street party and there were fireworks. J said he had been to two other street parties. J was cross-examined about why he remembered the occasion when Darren went. In response, J said it was because Darren lived with them and would go to rugby and had met D’s family. He said there was nothing different about that party apart from Darren attending on that occasion.[111]
[111] T 106 & T 107.
It was suggested to J that there was an occasion at a street party, when Darren was not present, and J had to leave suddenly with the accused. J said he did not remember any occasion when he was asked to leave suddenly. He said if that had happened, he and D would have spoken, as friends do, and asked ‘What’s wrong?’. He said if something had happened between their parents, they would have known.
J agreed that there were occasions when he and D would be driven home from rugby by the accused. He said there was no doubt that there were occasions when Darren and B would be with them. He agreed that there were other occasions where it was just he, D and the accused driving home from rugby. He agreed that it was possible there was an occasion they stopped at a service station to get petrol, but said he remembered going to McDonald’s. J said he could not remember any specific occasion when the accused stopped at a service station, but conceded that may have happened. When J was asked if it would be out of the ordinary for the accused to ask him to go and get some food while he remained in the car with D, J responded, “I don’t remember any occasion of doing that.”
Consideration
I accept that the complainant was doing his best to tell the truth. He was a nervous, almost timid witness, who displayed signs of having been traumatically affected by his memory of events. His description of the events constituting the allegations against the accused were reasonably detailed, although his account of the repeated episodes of indecent assault meant that it was somewhat difficult for him to separate such events. His account of the specifically particularised events, namely the first occasion on which the accused kissed him quickly on the mouth, the occasion when there was a longer kiss, and the occasion in the car at the service station, were recounted in some detail and with some specificity.
The complainant’s description of the accused kissing him, and his recollection of the accused’s beard, and cigarette smell, had a ring of truth about it. However, it was not otherwise established in evidence that the accused had a beard at that time, nor that he smoked cigarettes at that time.
However, there were aspects of his evidence which required some caution in evaluation. The complainant was adamant about the accuracy of his drawings of the layout of the two houses owned by the accused, which the complainant had visited. As I have said I prefer the evidence of the accused, and his son, as to the layout of those houses, and of necessity must find that the complainant was in error in his recollection. That is not surprising given the passage of some two decades since he last attended the houses, but the rigidity of his approach in defending his drawings causes me some concern.
I accept that the accused’s friend, Darren, was living with the accused for much of the relevant period. It is surprising that the complainant remembered little, if anything, of Darren’s presence. There were inconsistencies between the evidence given in court by the complainant, and his statement to police. Whilst much of that which constituted such inconsistencies was not of central importance, again such inconsistencies cause me to question the complainant’s reliability. Such matters included the location of the service station, the street on which the accused’s second house was located, and the description of the first incident as involving touching over his torso and a kiss, when he had told police initially that there was only a momentary kiss.
I have some difficulty accepting, beyond reasonable doubt, the occurrence of the incident said to have taken place in the car park at the service station. Whilst I accept that such actions may be committed in brazen disregard of the possibility of detection, the opportunity described was a brief one, the offence was said to have been committed in a very public place, and in circumstances where the complainant who was then about 12 years of age, was said to have climbed from the back seat of a station wagon between the front seats and onto the accused’s lap despite the accused sitting in the driver’s seat, with a steering wheel in front of him.
The complainant said that there was only one occasion on which the accused had touched him on the penis over his clothing, and that was in the car in the car park at the service station. He was adamant about that. That is inconsistent with his father’s evidence about what was seen in the dining room at P’s house.
I accept that the complainant’s father was doing his best to tell the truth. He was made aware of the complainant’s version of events, by reading the complainant’s statement to police. He said that he saw the accused touching the complainant’s groin, while the complainant was on the accused’s lap, during the Christmas party at P’s house. He agreed in cross-examination that that meant the accused was touching D’s penis.
The accused was not a particularly impressive witness. However his denials of the complainant’s allegations were adamant, and he was unshaken in cross-examination regarding those denials. He did not attempt to distance himself from D nor suggest that there was never an opportunity to commit the alleged act. Not all of his evidence could be similarly regarded. His account of the times he was working at Roxby Downs and the period Darren was said to be residing at his house was confused, and at times appeared evasive. Similarly his evidence as to learning of Darren’s death, and his relationship with Darren generally, seemed confused and somewhat evasive.
I bear in mind, of course, that even if I were to reject the accused’s evidence entirely, that does not establish the prosecution case, which must be established on all the evidence beyond reasonable doubt.
The accused’s son was a straightforward and careful witness. He did not give the impression that he was seeking to tailor his evidence to assist his father’s case. He made appropriate concessions. His evidence suffered due to the passage of time since the events were said to have taken place. Indeed, the evidence of all of the witnesses similarly suffered to varying degrees. I accept his evidence including as to the layout of the houses, and as to Darren’s presence at the relevant times. His evidence as to the lack of any notable event at the Christmas party at which the accused and Darren attended, and his evidence as to the unchanged continuation of his relationship with D and B following that Christmas party contribute to the residual doubt I am left with, regarding that alleged incident.
Ultimately, as I have said, the real question is whether I am satisfied beyond reasonable doubt that the events said to constitute each of the offences of indecent assault, for the purposes of establishing the charged offence, occurred.
Having regard to the passage of time and my acceptance that the accused suffered a forensic disadvantage, I have closely scrutinised the prosecution evidence. Ultimately, I am left with a suspicion that the accused committed the offence charged. However, as I said at the outset, that is not a sufficient discharge of the burden of proof placed upon the prosecution. Although I accept that the complainant was doing his best to tell the truth, I am, in all the circumstances, left with a doubt as to the guilt of the accused. Having regard to the very high burden placed upon the prosecution, I am unable to find the accused guilty beyond reasonable doubt.
Accordingly, the verdict must be one of not guilty.
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