R v Hore - [2010] SADC 72

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HORE
[2010] SADC 72
Reasons for the Verdict of His Honour Judge Barrett
28 May 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Aggravated Indecent Assault. Complainant was a 13 year old boy who stayed at the accused's house for about a month. Allegations of one charged act of indecent touching of complainant with an unspecified number of similar uncharged acts.
Held: Guilty of Aggravated Indecent Assault.
Evidence Act 1929 s 34M(3), 34M, 34M(4)(b), 34M(4)(a)(i) and 34M(4)(a)(ii), referred to.
HML v R (2008) 235 CLR 334; R v J, JA [2009] SASC 401, considered.

R v HORE
[2010] SADC 72
Background

The accused is charged with on count of aggravated indecent assault against a 13 year old boy (“B”). The accused was a friend of the complainant’s mother and, because of tensions in her house, the boy had gone to stay with the accused. The accused lived with his father. The charged act is said to have been committed at the accused’s house between 1 July and 31 November 2007. It consists of an alleged masturbation by the accused of B at a time when B was staying at his place. The factor of aggravation alleged is that B was aged under 14.
The prosecution have identified as uncharged acts the accused massaging B on the legs, masturbating him, and attempting to put his finger in B’s anus. In addition, it is said that there are occasions when the accused would talk with B about sexual matters, he would contrive to have B dry himself naked in front of a heater and he gave or lent him a mobile telephone on which there was homosexual pornography and pictures of shirtless boys the accused knew.
The accused pleaded not guilty. In an interview with the police he denied the charged offence and the other allegations of offending and inappropriate sexual behaviour. I bear in mind that the presumption of the accused’s innocence remains with him throughout the trial. I bear in mind that the prosecution bears the onus of proof. The prosecution must prove each ingredient of the charge beyond reasonable doubt.
Ingredients of the Offence
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove beyond reasonable doubt:
1. that the accused intentionally and unlawfully touched B;
and
2. that the touching was in circumstances of indecency.
To prove the aggravated form of the offence the prosecution must prove that B was under the age of 14 years at the time. It is not disputed that he was 13. He was born in December 1993. It is not disputed that if the prosecution proved beyond reasonable doubt the allegation of masturbation, then each ingredient of the offence would be proved.
Evidence of the Complainant
B is now 16 years old. During the first part of 2007 he was living with his father in Burton. In June he had an argument with his father and moved to live with his mother. She lived in the house of her parents at Holden Hill. The parents were apparently away. She was living with her husband and three younger children. It seems her brother M was also living there. He shared an interest with the accused in Stock Car racing. The accused’s father shared that same interest and he knew B’s grandparents. Through these connections B got to know the accused. The accused became a friend of B’s mother. B’s mother had, at some stage, a short sexual relationship with the accused but that appears not to have been known by B. He was not sure whether their relationship had gone any further than friendship.
There was disharmony in the house at Holden Hill. B’s mother described her marriage as going through a rough patch. It was arranged that B would stay at the accused’s house for several nights during the school week. I think it is likely that it was usually Monday to Thursday nights although the evidence of the various witnesses varies about that. The accused lived with his father at Para Hills West. That house was closer to B’s school than was his own house. The accused would also take the other children to and from school but they never stayed at his house. B stayed at the accused’s place for about a month.
The accused’s fathers’ house had three bedrooms. There is a dispute about where B slept when he stayed there. He and his mother say that he first slept in a single bed in the accused’s bedroom. The accused’s father said that B always slept in the third bedroom. The accused told the police that B slept in the third bedroom. I will return to that topic.
B said he liked staying at the accused’s place. He regarded the accused as a father figure. They would go bowling every Wednesday night, playing in a father/son league. They would go to an amusement arcade and play Laser Skirmish. They would go go-karting. The accused would buy him things at the shops. The accused bought B some racing clothes. They both shared an interest in stock car racing. B said the accused promised to buy him a racing car when he was older.
B said that when he first stayed with the accused he slept in a single bed in his bedroom. He later moved into a bed in the third bedroom. He said that while he slept in the accused’s bedroom the accused would engage in talk about sexual matters. He said the charged act occurred while he was in that bedroom. The other uncharged acts occurred in that bedroom as well. The uncharged acts consisted of allegations of criminal acts and also of talk and actions indicating that the accused had a sexual interest in B. I bear in mind that any uncharged acts tending to show a sexual interest in the B must be proved beyond reasonable doubt if they are going to be taken into account to assist in proof of the charged act.[1] In my view all of the uncharged acts purport to demonstrate a sexual interest by the accused in B. Therefore each one of them must be proved beyond reasonable doubt if it is to be used in proof of the charged act. Not all of the acts are criminal acts. I now list them. B said that the accused asked him if he would have sex with him. He also asked him if he could put his finger in B’s anus and as he asked that he was attempting to do so. When B said “No” he did not continue and he never did it again. On one occasion B noticed while he was standing in front of the heater in the accused’s bedroom that there was a video camera on the accused’s bedside table pointing in his direction. The camera appeared to be on. B inspected the camera and saw through the viewfinder that it was displaying the heater which he had been standing in front of. He later confronted the accused about that. He said that the accused explained that he had been watching a movie on it and then inadvertently left it on. B said that he did not see the camera again.
[1] HML v R (2008) 235 CLR 334.
B alleged that the accused had masturbated him about once a week. Other evidence would suggest that he stayed at the accused’s house for approximately a month. B said no indecent touching occurred when he moved into the third bedroom. His evidence is not clear how long he spent in each bedroom. He is not able to say how many times the accused masturbated him. B said the accused would start by massaging his legs. He said that the accused would tell him that he was a masseuse (sic) and that he used to work in a nursing home so he knew what he was doing. He said the accused would move up one leg, brush across his penis, and massage down the other leg. He described that process in the following terms (T42):
He used to massage my leg and then brush across and then massage the other one and then he would call it a night, and then the next night he would slowly, then masturbate my penis for about 10 seconds and then call it a night.
In further explanation of the masturbation itself he said (T43):
He used to grab it and stroke it up and down, asked me if I liked it or not.
B said the accused engaged him in sexual talk – he asked him if he had ever had a girlfriend, if he had ever had sex, if he had ever masturbated, if he had ever ejaculated. He spoke of boys whom he named coming to his house and taking showers. He said he would get into the shower with them to show them how to properly wash their uncircumcised penises. B said that the accused would suggest he dry himself after his morning shower in front of an electric heater in the accused’s bedroom. B would lay out his clothes on the single bed but find they were gone when he came out from his shower. B was not asked enough questions to explain precisely what interaction the accused had with him when he was drying himself in front of the heater. It appears he was naked at the time but it was not made clear what, if any, opportunities the accused took to see him in that state. (The accused told police he did see B naked in front of the heater and told him not to do so.) B said that the accused would often get into the single bed with him. That is when the talk about sexual matters would occur and when the massaging and masturbation took place. In cross-examination he said that he wore boxer shorts to bed. The accused would either take his boxer shorts down or massage him underneath them.
As I have said B could not remember how many times the accused had masturbated him. He said he particularly remembered the first time because after it the accused gave him (as he then thought) a new flip up mobile telephone. It was a Motorola brand. He later saw on the mobile phone pictures of homosexual pornography. He described it as men having anal intercourse. He also saw pictures of the boys the accused claimed to have had showers with. They were depicted on the mobile phone without wearing shirts. B said he deleted all those images. When the accused took the mobile phone back from him and discovered that the images were gone he told him he should not have deleted them because they had taken some time to accumulate.
B said that after the Royal Adelaide Show, “going towards the end of term 3”, he did not see the accused again. He was not asked to explain how that happened. He said that his mother asked him during the school holidays between the third and fourth term whether the accused had ever touched him inappropriately. She asked him that several times. Each time he denied it.
While the evidence about the time at which B stayed at the accused house is unclear it is associated by B with the time of the Royal Adelaide Show (to which he and the accused went) and the third and fourth school terms of 2007. Agreed Facts establish that the third term of 2007 was from 23 July to 28 September and that the Royal Show started on 7 September.
Initial complaint
B did not report his allegation to anyone until July of 2009. He told his mother who took him straight to the police station. It is agreed that they went to the police station on 10 July 2009. The date of complaint was almost 2 years after the alleged events. It could not be described as a prompt or recent complaint. However the near contemporaneity of a complaint and the acts complained of is no longer a prerequisite for the admissibility of complaints. Pursuant to s 34M(3) of the Evidence Act, evidence of an initial complaint is admissible. There is no temporal requirement. In my view both the report of the matter by B to his mother and to the police are admissible as initial complaints pursuant to that section. The evidence is not admissible of evidence of the truth of what is alleged (sub-s (4)(b)). It is admissible to demonstrate how the allegation first came to light (sub-s (4)(a)(i)) and it is also evidence of the consistency of B’s conduct (sub‑s (4)(a)(ii)). Consistency of conduct:
includes both the consistency in making the complaint when it would be expected to be made and consistency between the wording of the complaint and to the conduct alleged.[2]
[2] R v J,JA [2009] SASC 401 [95].
The complaint came to be made in these circumstances.
B said he did not report the matter when his mother first questioned him (T47). He explained why in this way:
…because I would have felt really guilty and bad if I did have said something considering he is a strong fellow, fatherly figure.
He complained to his mother only after he experienced what he described as a flashback on a train coming back from a school excursion. He noticed what he described as a drunk man “sleazing up” to primary school children in the train. He saw the man sit next to the children and put his arm around them. No one did anything. He mentioned the matter to his teachers but they said they could not do anything. He became “aggravated”. When his mother picked him up from the train she could see he was upset about something. She asked him several times what was the matter. At first he said “Nothing” but then he told her that the accused had molested him. She straightaway took him to the police.
Effects of delay
B’s complaint was not made until almost 2 years after the alleged events. While that delay in reporting is not as long as many experienced by the court it requires consideration. Delay of itself does not affect B’s credibility. However delay may cause the accused forensic disadvantage (Evidence Act s 34CB).
Three forensic disadvantages arise in this case. I bear them in mind when scrutinising the prosecution case and when considering criticisms of the defence case. The disadvantages are these:
1.The delay has lessened the exculpatory weight that can be attached to a photograph the accused took of his bedroom just before the trial began. The accused’s father denies that B ever slept in a single bed in the accused’s bedroom. He says there never was a single bed in that room. The photograph shows no single bed apart from a foam settee which no one suggests was the bed B slept in. The absence of a single bed in the photograph taken in April 2010 is not very probative of there being no bed in 2007. The absence of a bed at the time B made his report might be much more exculpatory. If B had made his complaint shortly after the event and the police had promptly arrested the accused and found no single bed in his bedroom, that might be significant evidence suggesting there was no bed at the time of the alleged abuse. The absence of a bed 3 years later is not so significant. In that sense delay has possibly caused the accused forensic disadvantage.
2.The accused’s father gave evidence that at the time of the alleged offending the accused was unemployed. He also said that the accused did not go bowling with B. The accused told the police that he had a job at the time and that he did go on excursions with B. The prosecution submits that those discrepancies adversely affect the credit of the accused or his father or both of them. The father’s memory of these matters might have been affected by the delay in the proceedings. He is aged 63. The possibility of a faulty memory may lessen any criticism of his evidence. It may lessen the significance of any discrepancy between his evidence and what his son told the police. On the other hand, if the father had to consider these matters closer to the time of the alleged offending, it is possible he might have given independent evidence supporting his son. That is a possible forensic disadvantage which I should bear in mind.
3.Delay may have prevented B being more specific about dates and that may have made it more difficult for the accused to more precisely remember events.
I return to the case for the prosecution.
B was cross-examined on several topics. I list them now but will discuss them shortly:
Single Bed
B did not tell the police on 27 July 2009 that he had ever slept in any bedroom other than that of the accused (T58). It is an agreed fact that at a proofing session on 23 November 2009 he said that he always slept in a bed in the accused’s bedroom. He believed that the first time he had seen a plan of the accused’s house showing a bedroom marked “B’s bedroom” was a few days before the trial started. The cross-examiner put to him that he only mentioned that he had slept in a spare bedroom when he saw that plan. He denied that suggestion (T60). The accused’s father said that B only ever slept in the spare bedroom. On the other hand B’s mother said that on 4 or 5 occasions she herself had put him to bed in a single bed in the accused’s bedroom. This is a significant topic to consider when evaluating the credibility of the three witnesses.
The camera lights
B said in court that a video camera was placed on the accused’s bedside cabinet pointing in the direction of a heater where he would dry himself after his shower. He said he could see the heater in the camera’s viewfinder. He said the camera had a green and a red light.
He agreed that he had told the police that the camera had a green light. He did not mention a red light. He did not tell the police about seeing the heater in the viewfinder (T60-61).
Anal touching
B said the accused attempted, on one occasion, to put his finger in his (B’s) bottom. He told the police that the accused had only asked if he could do that. When that inconsistency was put to him B said the accused asked as he was trying to do it (T62).
Other uncharged acts
B said that the accused had masturbated him several times. He told the police of only the one occasion. He explained that he had never been asked if there had been any other occasions (T63).
Boxer shorts
B had not mentioned to police, and had not said in examination in chief, that when the accused touched him on the genitals he put his hand under the boxer shorts or he took them off. He only spoke of that in cross-examination. In re-examination he said he had never been asked by the police what he wore to bed. It is an agreed fact that he said at the proofing session that he wore boxer shorts to bed.
Kissing on lips
B said that the accused kissed him on the lips in front of his (the accused’s) father. The father denied that (T108). B said he did not think the accused kissed him on the lips in front of his (B’s) mother. The mother said she had seen that happen (T80 and T85).
I now refer to the other prosecution evidence.
The complainant’s mother’s evidence
The second witness for the prosecution was B’s mother. I will not recapitulate the biographical evidence she gave. She said her son stayed at the accused’s place 4 or 5 times a week. She said she visited him there a fair few times (T74). She had put him to bed 4 or 5 times in a single bed in the accused’s bedroom. She had seen a bed set up for B in the spare bedroom on other occasions but she had never put him to bed in that room. She confirmed the circumstances of B telling her about the sexual abuse.
In cross-examination she agreed she had never seen any signs of problems with B when he was staying at the accused’s house. She maintained her evidence that she had put B to bed in the accused’s bedroom.
Police Record of Interview
The matter was reported to the police on 10 June 2009. The accused was arrested and interviewed by the police on 24 July. A copy of the video of the arrest and interview is Exhibit P8 and a transcript of the video is Exhibit P11. The accused’s father was present at the interview. The accused told police that he would answer their questions because he had nothing to hide. The following are significant things he said during the interview:
1.He denied any improper touching of B.
2.B had his own bedroom (pages 16-17 and 19).
3.The accused had a brief sexual relationship with B’s mother (page 18).
4.B stayed at his place for 4 to 5 weeks (page 19).
5.He would go with B to “Tons of Fun”, mostly on Friday nights (page 20).
6.They would go go-karting together at Kart Mania at Gepps Cross (page 21).
7.The accused was working at the time (page 21).
8.The accused and B would go off together on their own and sometimes with other people (page 21).
9.He agreed that B sat in front of a heater with no clothes on and that he had asked B not to do that (pages 27-29).
10.The accused saw B naked in the shower. B would invite him into the bathroom so the accused could say goodbye to him before he went to work (page 31).
11.The accused denied ever promising to give B a speedway car but did say he would give him a drive in one (page 35).
12.The accused agreed B had confronted him about the presence of the video camera on the bedside cupboard. He explained that he had been watching and/or taping something on the television with it (page 36).
13.The accused denied ever saying to B that he was masseuse (sic) (page 37).
14.The accused denied ever having any conversation with B about masturbation or any other sexual topics (page 42).
15.The accused denied any indecent touching, massaging. He did say that he had given him a rub on the back or something like that to comfort him (page 44-45).
Agreed facts

The prosecution case concluded with the tendering of a statement of agreed facts which I reproduce:
1.7 September was the first day of the Royal Adelaide Show in 2007.
2.Term 3 2007 was 23 July to 28 September. Term 4 was 15 October to 14 December.
3.The complainant attended a proofing session at the offices of the Director of Public Prosecutions on 23 November 2009. During the session the complainant stated the following:
(a)    that his declaration dated 27 July 2009 was accurate and there was nothing he wanted to add.
(b)    The first time he remembers something happening was before the Adelaide Royal Show when he was 13 years old. Maybe a couple of months before the Show. He stayed over at the accused’s house. The accused lived with his dad. In the morning he had a shower. He went to the accused’s room to get dressed. He saw a video camera in the bedroom. The green light was on so he knew the camera was on.
(c)    He would stay at the accused’s house 2 or 3 times a week at that time. He always slept on a bed in the accused’s room. He wore boxer shorts to bed.
Defence Case
The accused
The accused elected not to give evidence. That was his right and I draw no inference adverse to him by reason of his exercising that right.
The accused’s father’s evidence
The accused called his father, Wayne Robert Hore. Mr Hore said that in 2007 he worked as a storeman between 6am and 1.45pm. He would generally leave home at 5.50am and be home between 2.30 to 3pm. He said he knew B’s mother. She asked him if B could stay with them. He agreed and B stayed for about a month. He stayed Monday to Friday nights or sometimes Monday to Thursday nights. He always slept in the third bedroom on his own. There was a bedtime routine and B would go to bed between 9.30 and 10pm. His son would go to bed at about 11 to 11.30 which was the time he himself went to bed. He said there had never been a single bed in the accused’s bedroom.
In cross-examination he said the accused was unemployed at the time when B stayed there. He denied that B’s mother ever put him to bed in the accused’s bedroom (T105-106). He could not tell whether B and the accused ever went out at night. He was not conscious of them ever going out bowling on Wednesday nights. He was never conscious of them ever playing in a father and son team. He was never aware of them going go-karting at Gepps Cross or going to Tons of Fun at Tea Tree Gully (T106). He was unaware of them going off to play Laser Skirmish games. He said that he had told B’s mother that in his house he had strict rules and B would be expected to stick by them, otherwise he could not come (T107). He said he had never seen his son kiss B on the lips (T108). He said he was aware his son had given B a mobile phone but he thought it was an old one (T108-109). He agreed that the heater shown in the photograph in the accused’s bedroom was in that place while B was there. He said he was aware of his son having a camera as described by B.
That concluded the evidence.
The Defence case
The defence case is that the accused did not touch B in a sexual way at all. The accused had interests in common with B and he wanted to help B’s mother by looking after him. The accused denied to the police that he had ever behaved inappropriately towards B. He had not spoken to him on sexual topics, he had not contrived to see him naked. He had never touched B other than to give him back rubs. B had always slept in the spare bedroom. The accused’s father confirmed that. The accused’s father never saw any inappropriate touching. The accused’s father kept the household to a strict routine during the week.
Discussion
As is quite common the Crown case rests substantially on the evidence of B. The other evidence in the case is of some assistance but essentially I must acquit the accused unless I am satisfied beyond reasonable doubt that B is telling the truth about the accused masturbating him.
Ms Griffith for the prosecution submitted that B gave his evidence in a careful manner and that the embarrassment and reticence he showed is of assistance in determining his truthfulness. While I agree with the prosecutor’s description of the manner in which B gave his evidence I do not find the manner of particular significance. In fact I do not think that the demeanour of any one of the three witnesses is of assistance in determining their truthfulness.
Of more assistance is the inherent likelihood of the account given by B. By that I mean to include the detail of the evidence of the indecent assault and events which are said to surround it. B said that the charged act was the first of several occasions on which the accused touched his penis or masturbated it. He remembered the first incident because, after it happened, the accused gave him, or as it turned out, lent him, a mobile phone. B’s mother and the accused’s father saw B with a mobile phone. The mobile phone is a slightly unusual allegation to make if not true, and it is consistent with the accused wishing by such a “gift” to secure B’s compliance. Of course the phone could have been handed over for quite innocent purposes.
More remarkable is the further detail B gave of what he saw on the mobile phone. He says he saw male pornography and pictures of boys with their shirts off. While the pictures of the boys may be unremarkable taken alone, the pornography is less capable of an innocent explanation. Why would the accused lend a 13 year old boy a mobile phone with pornography on it unless he wanted to inure him to sexual matters? B’s evidence of deleting the pictures and being mildly reproved by the accused for doing so is further convincing detail.
The alleged massaging has about it convincing detail. B said the accused massaged up one leg, then after brushing lightly over his genitals, he massaged down the other leg. That was accompanied by the accused saying that he knew what he was doing because he was a masseuse (sic) and had worked in a nursing home. It is true that B did not tell the police that the accused went under his boxer shorts or took them down when touching his genitals. But if, as he says was the case, the police had not asked him what he was wearing at the time, it might not have occurred to him to volunteer that information. Even in examination in chief he was not asked what he was wearing. I do not think B’s not mentioning the clothing to the police damaged his credibility at all.
Nor do I think his credit is adversely affected by several other topics in respect of which he was criticised. I think the inconsistency about the lights on the camera and seeing the heater in the view finder are of no consequence at all. On the contrary, the accused’s confirming in his police interview that B had in fact confronted him about the camera being turned on enhances B’s credit.
B’s credit was challenged because of an inconsistency between his telling the police of only one act of masturbation but of the telling the court of several such incidents. He explained that by saying that the charged act was the only one he remembered and he had not been asked if there were others.
B told the police that the accused had asked if he could put his fingers in his anus. B said he refused and the accused did not try to do it. In court he said that the accused did do that and was asking if he could do it as he did it. These are certainly inconsistencies to bear in mind when scrutinising B’s evidence. However, bearing in mind that he was 13 at the time of the alleged incidents and 15 when speaking with the police I do not think they significantly diminish his credit.
I give particular consideration to another challenge to B’s credit. The challenge relates to his evidence of sleeping in the accused’s bedroom only part of the time during his stay and sleeping in the spare bedroom for the rest. B did not tell the police about sleeping in the spare bedroom. Further, it is an agreed fact that, at a proofing session at the offices of the Director of Public Prosecutions on 23 November 2009, B said he always slept on a bed in the accused’s bedroom.
B was not the only witness to give evidence on that topic. The accused’s father said that B always slept in the spare bedroom. B’s mother said that although she was aware that B slept in a room on his own at one stage, she actually put him to bed 4 or 5 times in the accused’s bedroom.
Mr Grant for the accused submitted that if I were to reject the father’s evidence I would have to find that he was lying. If I were to accept the father’s evidence, or to accept it as a reasonable possibility, then B’s credit is significantly damaged, if not destroyed.
I turn to other evidence that bears on this important topic going to B’s credit.
I refer to the father’s evidence. There was nothing in the manner in which he gave his evidence that assists me in determining his credit worthiness. The same can be said of B’s mother. The accused’s father is 63 years old and he gave his evidence in a straightforward manner. There are discrepancies between his evidence and what his son told the police. The accused told the police that there were numerous places he went to with B. He effectively confirmed what B had told the police about excursions. The father said there was a strict routine at night in his house. It left no room for night time excursions. It is true that there was not a careful questioning of B about exactly when these activities occurred. The only identified excursion was bowling on Wednesday nights. Police did not question the accused about when these activities occurred. The accused volunteered that he and B went to “Tons of fun” on Friday nights.
Nevertheless the accounts by B and the accused of numerous shared activities are at odds with the father’s account of a strict, austere regime on weeknights. In particular the father said that he was unaware of the accused going with B to some of the activities the accused told the police about. The father said he “could not tell” whether they went out at nights.
The accused told police he worked at the time. The father said he was unemployed. I do not place any weight on that discrepancy. That could be a mistake on the part of either the father or the son.
I have referred to inconsistencies between what the accused said to the police and what his father said in evidence. I bear in mind the forensic disadvantage that the delay in reporting the matter causes each of them.
The important aspect of the father’s evidence is his claim that B always slept in the spare bedroom. B denies that but he failed to mention the spare bedroom at all in his police interview. At the proofing session he said that he always slept in the accused’s bedroom.
Nevertheless I find B’s evidence of his sleeping in the accused bedroom compelling. It is confirmed by his mother. There did not appear any inconsistency in her evidence. B’s evidenced is enhanced by the detail it contained. It appears plain he was accustomed to being in the accused’s bedroom. He said that after his shower he would dry off in front of the heater in the accused’s bedroom. He would be naked. The accused told the police that. The accused added that he had told B not to do that. (That proposition was not put to B.) The camera was in the accused’s bedroom. The accused told the police about that. While being accustomed to being in the accused’s bedroom is not the same as sleeping there, I find that the evidence of the heater and the camera tends to support B’s evidence of sleeping in the accused’s bedroom for part of the time during his stay. I reject the father’s evidence in that respect. I do not necessarily conclude that he was lying. It is unclear from B’s evidence how long he slept in the accused’s bedroom. He may have spent longer sleeping in the spare bedroom. It would certainly be remarkable if the accused’s father was not aware where B was sleeping. It would ordinarily not be the sort of thing he would forget about. Nevertheless these are possible explanations for the father’s evidence apart from lying. I am satisfied that B is telling the truth when he says that he slept for part of his stay in the accused’s bedroom.
Uncharged acts
The accused said several things to the police which indicate he had a sexual interest in B. The answers to which I refer are peripheral to the charged act of indecency and, while not illegal, are inculpatory. As such they may not be used in support of the case for the prosecution unless they are proved beyond reasonable doubt.[3]
[3] HML ibid.
The first act concerns the heater. It was in the accused’s bedroom. B said that before he went for his shower in the morning he would put his day clothes on his bed in the accused’s bedroom. When he came back from the shower he would find his clothes gone. He would dry off in front of the heater. The clear implication of that evidence was that the accused contrived for B to be naked in his bedroom. B said the accused was not in the room when he was drying off but the accused would bring his clothes in afterwards. The accused confirmed to the police that he did see B naked in front of the heater. He said he “didn’t have any issue with that”[4] but that he asked B not to do it. I find B’s account of the removal of his clothes inherently credible. I find that the accused would remove B’s clothing so as to give himself an opportunity to see B naked in front of the heater. I find that he did that because he had a sexual interest in B. I am satisfied beyond reasonable doubt about that.
[4] Record of Interview p 29.
I am satisfied beyond reasonable doubt that the accused tried to film B in front of the heater. That too is a credible account and is in part supported by the accused. He admitted to the police that B spoke to him about the camera being on. I am satisfied that the accused tried to film B because he had a sexual interest in him.
I am satisfied that the accused spoke to B of sexual matters. B’s account of the conversations was compelling. I accept that the accused told B that he showered with boys and showed them how to wash their uncircumcised penises. I do not find that the showering actually occurred but I am satisfied that the accused told B that it had.
I am satisfied that the accused occasionally kissed B on the lips when greeting or farewelling him. B’s mother saw that but she said that because the accused did it to other boys she thought it odd but not suspicious. The kissing may not have occurred in front of the accused’s father but I am satisfied that it did occur. Although of minor significance I am satisfied it was evidence of the accused’s sexual interest in B.
Despite the inconsistencies in B’s evidence to which I have referred I am satisfied beyond reasonable doubt of the truth of B’s evidence that the accused masturbated him on the occasion charged. I find that act was the first of several acts of touching on the penis and masturbation. I am not able to determine how many such uncharged acts were committed. I find that the first occasion, the act charged, occurred sometime around the Royal Show which, began on 7 September 2007.
Conclusion
I find the accused guilty of aggravated indecent assault.