R v Jones
[2010] SADC 76
•3 June 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JONES
Criminal Trial by Judge Alone
[2010] SADC 76
Reasons for the Verdicts of His Honour Judge Lovell
3 June 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
The accused is charged with one count of persistent sexual exploitation of a child and in the alternative two counts of unlawful sexual intercourse and one count of gross indecency.
Sexual contact found to have occurred. Prosecution unable to establish beyond reasonable doubt that the complainant was under the age of 17 years at the time of the offending alleged in Counts 1, 2 and 3 and under the age of 16 years in relation to Count 4.
Verdicts: Not Guilty of Counts 1, 2, 3 and 4.
Criminal Law Consolidation Act 1935 s 49(3), s 50, s 58, referred to.
CSR Ltd v Della Maddalena (2006) 224 ALR 1; R v Palmer (1998) 193 CLR 1 at [51], considered.
R v JONES
[2010] SADC 76
At age 10, SS the complainant, at the request of his mother, was taken into the care of the State. She was unable to cope with his behaviour. He had suffered years of physical abuse including being whipped with an electrical cord and being burnt with a cigarette lighter.
From that time he suffered abuse at the hands of those who were entrusted with his care. Some of what S had to tolerate was common ground at this trial. On 18 May 1980, by an interim order, he was made a ward of the State and that order on 28 September 1984 was made permanent until he turned 18 years of age.
S alleged that the accused befriended him whilst the accused worked as a Community Aide at an institution known as Slade Cottage. Eventually this relationship developed into a strong friendship. This was common ground. S alleges that it eventually, whilst he was still only about 14-15 years of age, turned into a sexual relationship.
The accused admitted a strong friendship but denied that it developed into a sexual relationship. He described S as a very troubled boy whom he was trying to assist.
Common ground
Mr John Charles Fitzpatrick from the Community Welfare Department (“the Department”) gave evidence. Some records were produced and a summary of the movement of S through various State run institutions were tendered.[1] Generally S was able to confirm his attendance at those institutions. Not surprisingly, given the length of time since he was in State care, he was unable to be precise about the timing of his placements.
[1] Exhibit P3.
The records however do not appear to be complete. S gave evidence that he resided at Eden Park (also known as the Mt Barker Boys’ Home). His mother confirmed that. His attendance there is not recorded. I accept his evidence about that.
It was common ground from the evidence and I find that:
1.On 18 May 1980 he was placed under the Guardianship of the Minister for three months.
2.He was discharged from that order on 17 August 1980.
3.On 20 August 1982 he was deemed to be in need of care and placed under the Guardianship of the Minister. This order was made permanent (ie until he turned 18 years of age) on 28 September 1984.
4.On 5 December 1983 he was first admitted to Slade Cottage.
5.He was moved to SAYRAC on 6 July 1984 having been charged with assault.
6.On 9 August 1984 he was re-admitted to Slade Cottage.
7.On 17 September 1984 he was re-admitted to SAYRAC charged with break and enter with intent to steal.
8.On 1 October 1984 he was returned to Slade Cottage.
9.He remained there until 7 September 1985 when he was placed into the care of his mother.
10.On 31 October 1985 he was remanded to SAYRAC until 15 November 1985. On 15 November 1985 he was admitted to Slade Cottage for one day before being transferred to the Southern Regional Group Home.
11.On 19 February 1986 he was admitted to SAYTC (McNally’s). From there he was released to his mother’s care on 24 February 1986. He spent time in other institutions[2] until he turned 18 years of age.[3]
12.S was born on 9 November 1970.
[2] Exhibit P3.
[3] 9 November 1988.
The accused became a community aide, working on a voluntary basis, around late 1983 at Slade Cottage. Slade Cottage was a house at Somerton Park that housed a number of young boys, who at the time were under the protection of the Minister. There were some full-time staff: the boys attended school but returned to Slade Cottage after school.
Each boy had his own bedroom but they shared a lounge room and bathroom facilities. S thought there were about seven bedrooms in total.
Whilst not all the details were agreed both S and the accused described an incident that led to a close friendship between them being formed.
S described an incident when he felt that the supervisor of Slade Cottage, Mr Derek Hudson was being unfair to another boy. S intervened and Hudson struck him: he fell to the floor. While on the floor Hudson kicked him in the face. The accused witnessed the incident.
It was common ground that the accused took S to S’s bedroom and comforted him.[4]
[4] T 45.
The accused agreed that he bought S a BMX bike for his 14th birthday.
Witnesses: general remarks
Prosecution witnesses
S undoubtedly had a traumatic childhood. Having been in effect abandoned by his mother he spent his teenage years in various State run institutions interspersed with attempts by him to live with his mother. S was often in trouble with the police for offences of violence and dishonesty. He admitted a drug problem in his early adult years. S made no attempt before me to hide his previous problems.
Generally he gave his evidence in a straight forward manner. On occasions he became combative during cross-examination. There were some inconsistencies and some errors in his evidence.
That is hardly surprising given the turmoil his life was in and the length of time since the disputed events occurred. I will deal in more detail with those matters later in these reasons.
Overall I found S to be a good witness. Where his evidence conflicted with the accused I generally prefer his evidence. He was of course, the main witness for the prosecution.
I have had regard to the demeanour of S in arriving at my conclusions. Indeed I have had regard to the demeanour of all witnesses when coming to my conclusions. Reliance on the demeanour of a witness has been subject to judicial “criticism” in recent times.[5] Less emphasis has been given to the “advantage” a trial judge has in assessing witnesses. I have borne in mind those criticisms.
[5] See CSR Ltd v Della Maddalena (2006) 224 ALR 1.
Assessing credibility in a case such as this is a difficult task for a trial judge. Articulating the reasons for acceptance of a witness’s evidence can be an even more difficult task.
I have carefully considered his evidence. I am satisfied that he was honest, truthful and generally reliable. He was tested in cross-examination by Mr Healy. Mr Healy in his address stressed some inconsistencies in his evidence as well as differences between his evidence and that of the defence witnesses. I have not overlooked those matters and I will deal with them in more detail later in these reasons. The matters put to me do not shake my confidence in the general reliability and truthfulness of his evidence in relation to the central allegations. However, as I discuss later in these reasons S was unsure when it came to dates. Whilst I have no doubt he attempted to genuinely recollect dates his memory proved, on occasions, to be unreliable.
The prosecution also called Mrs S. Generally I accept her evidence. She was not asked in detail about her problems with S although she gave some brief evidence about the topic. Mrs S gave evidence of her contact with the accused. Where her evidence conflicts with that of the accused, I prefer the evidence of Mrs S.
Lucy Valciukas, S’s social worker at the relevant time, gave evidence with the benefit of her contemporaneous notes. She was a thoughtful and impressive witness. I accept her evidence. Where it conflicts with the accused’s evidence I prefer her evidence.
Ms Peake ran the Teenage Care Programme in 1984. She is a qualified psychologist with a post graduate degree in Social Work. The programme was established to recruit and train people to be foster parents.
Any person wishing to become a registered foster parent had to undertake the programme. The accused participated in this programme in 1985.
Ms Peake was an impressive witness and I accept her evidence. The accused did not contest her evidence.
S was resident for a short time at the Southern Regional Group Home. Ms Harnett worked there at that time. Ms Harnett gave evidence about contact she had with Mr Jones at that time. The accused disputed her evidence. Given my findings I do not need to resolve that conflict.
Mr Layton was at the relevant time the Regional Director of the Southern Metropolitan Region of the Department. He had corresponded with the accused and his then solicitor Mr Stokes. He was a good witness and I accept his evidence: it was not disputed by the accused.
The accused was interviewed by Senior Constable Dawson. The interview was tendered. Her evidence was not disputed and I accept it.
Defence witnesses
The Accused
The accused was an appalling witness. I reject his evidence generally. He was deceitful and evasive on many occasions. Despite Mr Healy’s succinct questioning the accused’s evidence-in-chief was often discursive and non-responsive. When confronted by the skilful cross-examination conducted by Ms Matteo his evidence simply deteriorated. He was unable, in any sensible way, to answer many of the questions put to him.
During the course of his evidence it became apparent that there had been a meeting with his mother and brother Keith where S’s statement to the police had been discussed. It was clear that an agreed position as to some dates and events had been reached. It was impossible for me to determine whether any of them had a genuine recollection of all of these events. Indeed, as the evidence showed their agreed position was clearly incorrect.
It is understandable that in a case such as this, families will discuss matters. However this meeting occurred relatively close to trial. It was not so much a discussion as a dissection of S’s statement to the police and an agreed position then being reached. It coloured the evidence they gave. Whilst they all agreed the meeting and discussion had taken place, all three professed to have an independent recollection of the events, dates and times. I reject that evidence.
The accused attempted to constantly minimise the amount of contact that he had with S. This stood in stark contrast to the documentary evidence that demonstrated his attempts to convince the Department that he was a suitable person to “foster” S.
The accused in evidence, gratuitously on occasions, referred to the bad character of S. He said he was on drugs, breaking items of furniture in the house, of unpredictable moods, by inference illegally using motor vehicles in the neighbourhood. Yet, despite those assertions, he was content to allow S on one occasion, after an allegedly violent assault on the housemate Mr Henwood, to go and stay with his mother and brother. His evidence in relation to those matters was incongruent.
The accused was in conflict with Mrs S about whether he suggested marriage as a way for him to be able to adopt S without involving the Department. Mrs S gave very clear and compelling evidence about this incident and I accept it.
The accused tried to suggest it was a joke. Given his obsession with attempting to foster S, I simply do not believe him. The evidence of his contact with S, his speaking to Mrs S without approval of the Department, his defiance of the wishes of the management of Slade Cottage and the Department, his attendance at the Foster Programme, all clearly show his obsession with S.
The accused tried to divorce himself from having much to do at all with the letter written by S whilst in the office of Ms Stokes.[6] Clearly such a position was untenable given the level of education attained by S. The accused attempted to maintain what was a ludicrous proposition. I reject his evidence about that.
[6] Exhibit D7.
I accept S’s version as to how that letter came into existence. To suggest that S, with his interrupted education, could write such a letter without direction from an adult, was simply another attempt by the accused to distance himself from the prosecution case.
The way the accused answered questions in the record of interview was consistent with him being evasive about his relationship with S.
Mrs Doris Jones
Mrs Jones candidly admitted meeting with her two sons to discuss the police statement of S. She denied however that affected her evidence or that she did not have an independent recollection of various dates, times and events. I reject that.
That does not mean that I reject her evidence totally. I have to consider her evidence for example about coming home and “catching” S and the accused watching pornographic videos and drinking alcohol. She denied that such an incident took place.
S gave a vivid description of such an event occurring.
In the context of this case whether such an incident occurred is a matter going only to credit. However, as McHugh J said in R v Palmer:[7]
… the credibility of a witness may be of such crucial importance that it is decisive of the facts in issue, particularly where, as in the present case, the witness is a participant in the very facts in issue or the only eye witness to them.
[7] R v Palmer (1998) 193 CLR 1 at [51].
The issue of S having been shown pornography is clearly relevant to the facts in issue.
I do not reject Mrs Jones’ evidence as a reasonable possibility. This means the prosecution have not established beyond a reasonable doubt that such an incident took place. I am unable to find one way or the other that such an incident in some form took place. I accept that S may be wrong about that and that reflects on his credibility. It makes me view his evidence more carefully. However, after taking such an approach it does not alter my view of his general reliability and truthfulness
Mr Keith Jones
He was an unimpressive witness. During cross-examination he was argumentative and combative. He, somewhat reluctantly, accepted that he had attended the meeting where S’s statement had been discussed. He considered it had little or no effect on his independent recollection of events. I reject that evidence.
During the course of his evidence, he told me that in 1984 he had suffered a nervous breakdown and was off work for some period of time. Mr Jones had undergone psychiatric treatment as well as taking “antidepressants”. Apparently he had a relapse some 10 years ago. I mention those issues as I think it likely that those medical issues affected the way in which he gave evidence. It may account, to some extent, for the somewhat aggressive and combative way in which he answered questions.
However, even making allowances for his health issues, I do not accept his confident assertions that he had an independent recollection of events. His evidence was clearly biased and coloured in favour of his brother. I reject his purported recollection of a phone call from S to him, wherein he gave S the telephone number of the River Parade address.
Whilst it is understandable that he would be inclined to assist his brother, the manner in which he gave evidence lacked any semblance of objectivity. Where his evidence conflicted with that of S, I prefer the evidence of S.
Mr Mark Henwood
Mr Henwood also gave evidence on behalf of the accused. He lived with the accused at the River Parade premises. At the time he lived at those premises he, like the accused, worked as a security guard. Currently he works as an interstate truck driver.
Mr Henwood gave evidence that supported the accused regarding the time when S came to live at the River Parade address namely around November 1987. He gave his reasons why he was able to remember the date. Mr Henwood also gave evidence as to when he first moved into the River Parade address namely around August 1986. That evidence contradicted the evidence of S in a significant respect.
Mr Henwood clearly disliked S. He made no attempt to hide that feeling. In my opinion that detracted from his evidence. Like Mr Keith Jones and Mrs Jones he also had met with the accused a few months before the trial started and discussed the “statement” of S. That also detracted from his evidence. His answers in cross-examination when challenged about that meeting were hostile, evasive and unimpressive. I am unable to totally accept Mr Henwood as a reliable witness.
However that does not lead necessarily to a wholesale rejection of his evidence. His evidence as to why he was able to remember the time when he moved to River Parade could not be seen in the same light, nor could his evidence as to when S first came to live at River Parade. I am unable to reject his evidence about those matters beyond a reasonable doubt. I will refer later in these reasons to the consequence flowing from that finding.
The Charges
The accused is charged with one count of Persistent Sexual Exploitation of a Child (Section 50 of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that the accused between the 5th day of December 1983 and the 9th day of November 1987 at Hallett Cove, over a period of not less than three days, committed more than one act of sexual exploitation of SS, a person under the age of 17 years.
It is alleged that the conduct comprising the acts of sexual exploitation are:
a. Indecently assaulting SS by masturbating SS’s penis.
b. Indecently assaulting SS by causing SS to masturbate his penis.
c. Having unlawful sexual intercourse with SS by inserting his penis into the mouth of SS.
d. Having unlawful sexual intercourse with SS by inserting SS’s penis into his mouth.
e. Having unlawful sexual intercourse with SS by inserting his penis into the anus of SS.
f. Committing an act of gross indecency in the presence of SS.
In the alternative he is charged with two individual counts of unlawful sexual intercourse and one count of gross indecency.
The Law
Burden of proof
The accused has come into this Court with the presumption of innocence operating in his favour on each count. The law regards him as innocent on any and all counts unless and until his guilt has been proved beyond reasonable doubt.
The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
If, upon a consideration of an individual count, after full and careful consideration I am unable to decide where the truth lies, or who is telling the truth, the prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict would be not guilty. Where I indicate that I am satisfied about a particular fact or event, I mean satisfied beyond reasonable doubt.
The accused does not have to prove or show anything. The accused was not obliged to give evidence but he 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 am to approach the task in exactly the same way as with any other witness. I take into account when assessing evidence of the accused the fact that evidence was given of his good character from his brother Mr Jones and mother and that he has no prior criminal convictions.
I bear in mind the accused’s previous good character when considering whether I am prepared to draw from evidence the conclusion that the elements of the offence have been proved beyond a reasonable doubt.
Persistent sexual exploitation of a child
The elements of this offence are:
1. The accused must be an adult.
2. The complainant must be 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 17 years.
“Position of authority” is defined in the Act (s 50(8)).
3. The accused must commit more than one act of sexual exploitation of the complainant over a period of not less than three days.
An act of sexual exploitation is one where, if the act was properly particularised, it could be the subject of a charge of a “sexual offence”.
A “sexual offence” is defined as:
(a) an offence against Division II (other than sections 59 and 61) or sections 63B, 66, 69 and 72; or
(b) an attempt to commit or an assault with intent to commit any of those offences; or
(c) a substantially similar offence against a previous enactment.
In this particular matter, elements one and two are not in dispute. The accused was an adult at the relevant time. It was not suggested that, at the time of the offending, that the accused was in a position of authority.
The issues in question are whether the DPP have proved beyond reasonable doubt, any sexual offences occurred at all and further, if the acts occurred whether the complainant was under the age of 17 years at the time of the offending.
The sexual offences as particularised by the DPP are:
(1) Indecent assault;
(2) Unlawful sexual intercourse;
(3) Gross indecency.
All of these offences are offences against Division II of the Criminal Law Consolidation Act.
Indecent Assault
The five elements or ingredients of indecent assault are:
1. An application of force to the person of another;
2. The application of force must be deliberate or intentional;
3. The application of force must be unlawful; that is, without lawful justification or excuse;
4. The application of force must be without the consent of that other person; and
5. The application of force must be accompanied by circumstances of indecency.
Unlawful sexual intercourse
The offence of unlawful sexual intercourse is committed when a person has sexual intercourse with a person of or above the age of 12 years, and under the age of 17 years.
The definition of unlawful sexual intercourse can be broken down into two ingredients:
1. Firstly, there must be an intentional act of sexual intercourse.
2. Secondly, the person with whom the accused had sexual intercourse with was under the age of 17 at the time of the sexual intercourse.
In relation to the offence of unlawful sexual intercourse, the state of mind of the complainant in this case is irrelevant.
It is not a defence to a charge of unlawful sexual intercourse if the complainant consented to the sexual intercourse.
The accused has a defence to the charge of unlawful sexual intercourse if he believed on reasonable grounds that the person with whom he had sexual intercourse, was of, or above the age of 17 years. This was not an issue in this case.
The DPP must prove each element of the charge beyond a reasonable doubt in relation to each count of unlawful sexual intercourse separately. I do not intend to repeat the elements of the offence when discussing each charge of unlawful sexual intercourse.
Gross Indecency
The offence of gross indecency is committed when a person who, in public, or private, commits an act of gross indecency with a person under the age of 16 years.
The definition of gross indecency can be broken down into four elements:
·First, the act was done with, or in the presence of, SS. The complainant’s consent or absence of consent is immaterial.
·Secondly, the complainant was under the age of 16 years. It is immaterial whether the accused was aware of that.
·Thirdly, the act was indecent. I must apply the standards of right thinking members of the community in assessing the question of whether the assault was in circumstances of indecency.
·Fourthly, the indecency must be gross. The indecency must be “gross” in that it must be something more than minor or trivial indecency. The indecency must be gross by reasonable contemporary standards. I must apply the standards of right thinking members of the community in assessing the question of whether the indecency was gross.
Motive
In this case the defence have suggested a motive for S to come to court and lie. It was suggested to S that the accused was an “easy target”. He had made allegations of abuse against other persons but had withdrawn them. The defence suggested S maintained the allegations against the accused because he was an easy target for a compensation claim.
I remind myself that there is no onus on the defence to prove a motive to lie. It is for the prosecution to establish the charge beyond a reasonable doubt. The defence do not have to prove anything and that includes a motive to lie.
In the context of this case I must carefully consider the evidence and submissions put to me about the motive to lie. I can use those matters in my assessment of the credibility of S. Even if I reject the defence contention about that, even as a reasonable possibility, then that does not relieve me of my responsibility to be satisfied beyond a reasonable doubt of the allegations before I can return a verdict of guilty.
A failure of the defence to be able to provide a motive to lie can never be used to in any way strengthen the crown case. The defence has no onus to prove anything.
In this case I reject the suggestion made by the accused that S had a motive to lie. I find that the suggestion does not affect my assessment of the credibility of S. However it goes no further than that.
The Evidence
S was first taken into care when he was nine years of age. On his own admission he was a difficult child, always in trouble. It was clear however that he had been subject at home to awful physical and mental abuse. It is not necessary for me to detail or comment upon his life up until the time he first went to Slade Cottage in around December 1983. It can simply be stated that he undoubtedly had a harrowing childhood.
Slade Cottage was a home for boys under the care of the relevant Minister. It had approximately seven bedrooms, each boy having their own, but joint lounge, kitchen and toilet facilities. There were restrictions on the boys’ activities.
It was at Slade Cottage, where the accused worked voluntarily as a community aide, that S and the accused met.
Initially S thought the accused was one of the better people to “talk to” out of the staff at the cottage. He described the accused as having more time to spend with the boys as he didn’t have to attend to “paperwork and reports”[8] like other staff members. He thought, at that time, that the accused was in his early thirties and physically very fit. S at this time was about 13 years of age.
[8] T 43.
An incident occurred at Slade Cottage which drew S and the accused closer together. It was common ground that this incident occurred.
S said that one evening at Slade Cottage he went to the assistance of another boy called Matthews who was being assaulted by a member of the staff called Hudson. S told Hudson to stop it and he was pushed to the ground. As he went to get back up Hudson kicked him in the face. S was carried back to his bedroom by the accused who, along with some other boys had witnessed the assault. The accused confirmed the basic details of this incident in his evidence.[9]
[9] T 317.
S said that the accused remained in his bedroom for one and a half to two hours – “or it seemed that long anyway.”[10] The accused said he remained in the room for about 10 minutes.[11] Whilst I am not satisfied that the accused remained in S’s room for one and a half to two hours it was certainly longer than the 10 minutes suggested by the accused. I accept the evidence of S that it was on this occasion that the accused gave him his phone number and had him memorise it. I reject the accused’s evidence that he gave S the phone number some months later.
[10] T 45.
[11] T 318.
From there it was common ground that S and the accused formed a strong friendship.
Frequency of contact
Having been given the phone number S rang the accused the next day. He would ring him frequently usually reversing the charges. S would also see him frequently, outside of Slade Cottage, by dropping in to see him at his work place. He described a lot of contact and I accept his evidence about that.
S said he would attend “Mike’s place” at 57 Grand Central Avenue, Hallett Cove often. He described the number of times as “frequent” and “a few times a week”.[12] The accused lived there with his mother Dora and brother Keith. S said he used to call Dora “Mum”. He described staying there overnight up to 10 times, some of those when he was hiding from the police having run away from Slade Cottage.[13]
[12] T 52.
[13] T 53.
The issue of how often S went to the residence at 57 Grand Central Avenue was hotly contested by the accused. Rolled into that issue was the frequency of general contact between S and the accused (outside of Slade Cottage).
The prosecution case was that the contact was frequent: the defence case was that the contact was minimal.
The issue needs to be assessed against other evidence called by the prosecution.
Ms Valciukas was S’s social worker from late 1982 until the end of 1986. S was eventually placed under the Guardianship of the Minister for health, welfare, education and residence until he was 18 years of age. As mentioned earlier I found her to be an impressive witness and I accept her evidence.
She confirmed that S was a difficult child who had a number of behavioural problems. He would seek inappropriate attention and had troubles at school, home and other places of residence. Ms Valciukas had contact with S’s mother and would also see S at Slade Cottage. Ms Valciukas had contact also with the accused.
The first contact was by telephone on 7 August 1984 and this was followed up by an interview with him at her office on 13 August 1984.
At the interview the accused sought permission for S “to have tea with him every fortnight”.[14] Permission was granted provided “Slade Cottage” agreed. The issue of the accused “fostering” S was raised by the accused. She considered it was too early to consider at that time.[15]
[14] T 250.
[15] T 251.
On 27 April 1985[16] the accused wrote to Ms Valciukas. It is an important document.
[16] Exhibit P8.
The only inference that can be drawn from this document is that there had been regular contact between S and the accused and that S had been to tea at the accused’s house. Also the accused requested permission for S to stay overnight at his house (57 Grand Central Avenue, Hallett Cove). The accused informed Ms Valciukas that he intended to participate in the Teenage Care Programme.
On 13 May 1985 the accused again wrote to Ms Valciukas.[17] He suggested that he foster S on a two month probationary period. The letter is couched in terms that would suggest significant contact between himself and S although it is not specific about where such contact took place. The letter does state however: “It is not as though S is a stranger to me or my family (my underlining).”
[17] Exhibit P9.
The accused considered that was an advantage he had and that it supported his suggestions.
The letter is supportive of the inference that S had significant contact with the accused and his family.
On 4 June 1985 the accused rang Ms Valciukas. He requested permission to see S on the weekends. Ms Valciukas referred him to Mr Bartlett who was a residential care worker at Slade Cottage.
On 18 June 1985 Ms Valciukas visited Mrs S. After that visit she had telephone contact with the accused. The issue of fostering S was discussed. He was told that S was not to be fostered at that stage. The accused wanted to attend a Review Board hearing in relation to that decision. He had no legal right to attend such a hearing.
Ms Peake, the person in charge of the Teenage Care Programme stated that as part of the programme the participant would be interviewed by her.
A letter[18] written to Ms Valciukas indicated that the accused had participated in the programme and she had interviewed him on 4 July 1985.
[18] Exhibit P11.
This letter indicated that she had concerns about his application to become a foster parent. They were, amongst other matters:
1.His almost obsessive focus on wanting to foster S; and
2.His ability to work in a team. Examples of this are (a) his purchase of a bike for S without consulting Slade Cottage and (b) having direct contact with S’s mother about fostering S without consulting the Department for Community Welfare.
Ms Peake concluded that she would not process the accused’s application at that time.
Clearly this evidence is supportive of the suggestion of an “obsessive” attitude by the accused towards S and that supports the suggestion of significant contact between S and the accused.
On 1 August 1985 a case conference was held. S and the accused were present as were members of staff from Slade Cottage. Ms Valciukas attended as well.
As a result of that case conference, decisions were made in S’s best interests one of which was to stop contact between him and the accused.
On 7 August 1985 it was decided by the Department that S would call the accused to tell him he didn’t want any more contact with him. S gave evidence that this was done[19] although the precise date of the call is not known. I infer it must have been relatively close to the 7th August 1985 decision.
[19] T 97-99.
In November 1985 Ms Valciukas took action in an attempt to stop S and the accused contacting each other. This led to Mr Layton writing letters to the accused and the accused seeking the assistance of his solicitor Mr Stokes.[20]
[20] Exhibits P12, P13, P14 and P15.
The prosecution case is that the other evidence outlined above is consistent with S’s evidence about the frequency of contact.
The accused gave evidence-in-chief that S only made four visits to his house at Grand Central Avenue for the purpose of riding a BMX bike that he had purchased for S. He stated that permission had been obtained from Slade Cottage for those visits.[21] The duration of the visits was very brief “approximately about one hour”.[22] The accused denied that S ever stayed at his house overnight.[23]
[21] T 322.
[22] T 323.
[23] T 325.
The accused confirmed that S would visit him at his work in Grenfell Street in the city.[24] They were brief visits but not uncommon.
[24] T 326, T 335.
In cross-examination the accused was confronted with his own correspondence to S’s social worker Ms Valciukas.[25] He reluctantly conceded that other than the four occasions mentioned earlier there were only two other occasions that S may have gone to the house at Grand Central Avenue.[26] He conceded that S may have gone to tea there.
[25] Exhibits P8 and P9.
[26] T 430.
Mrs Jones gave evidence as part of the accused’s case. Her evidence was that he only came to the house at Grand Central Avenue approximately four times staying about an hour on each occasion.[27] She denied that he stayed for tea during this particular period.[28] She stated that he had come to dinner when he stayed there in 1988 (this was common ground).
[27] T 555.
[28] T 556.
Keith Jones, the brother of the accused, also gave evidence as part of the accused’s case. He stated that S came to the house in 1984 on “4 maybe 5 occasions”.[29] He said the visits lasted about one hour.
[29] T 618.
The similarities in the evidence of the accused (initially) and Mrs Jones and Keith Jones are striking. During cross-examination all three conceded they had met and discussed S’s statement to the police. They agreed that the topic of how many times S had attended the Grand Central Avenue address was discussed. All three professed to have an independent memory. I reject their evidence in relation to this matter.
I make the following observations. I do not suggest the meeting of the three of them was held in order to concoct evidence. Given the nature of the allegations it would be natural for the accused at some stage to speak to members of his family about the matters.
This meeting however was of a different character. It was close to trial and S’s statement to the police was discussed. I have no doubt that the accused influenced the two others. The accused, during his evidence, took great pains to minimise the contact he had with S outside of Slade Cottage. Even when confronted by his own letters to Ms Valciukas he continued to minimise his contact. The other evidence, outlined earlier, clearly supports S’s evidence of frequent contact.
I find that Mrs Jones and Mr Keith Jones have little or no independent recollection of this topic. Their evidence on this issue is simply a reflection of what the accused told them at the meeting. Even the accused conceded that his initial evidence was not correct. I am not suggesting that Mrs Jones and Keith have deliberately lied to me. It is likely they believe what they say.
However, I simply cannot accept that they have any independent recollection. Their continued assertions that they possessed such a recollection caused me to approach the rest of their evidence with extreme caution.
The objective evidence clearly shows that there must have been significantly more contact between S and the accused than his family were prepared to admit.
There was some common ground between S and the accused about visits by S to Grenfell Street, Adelaide where the accused worked. I prefer S’s evidence about the contact in those circumstances.
I understand that all witnesses, including S, were giving evidence about matters occurring 25 years ago. It may be that S’s recollection, which he conceded was not precise, is perhaps overstated. I do not need to be precise about the amount of contact. However I prefer the evidence generally of S over the accused and his family. I find that there was significant contact between S and the accused in 1984 and 1985 and some of that was at Grand Central Avenue. I reject the accused’s version of events. He deliberately lied about the extent of his contact. I reject the evidence of Mrs Jones and Keith Jones on the topic.
Events at 57 Grand Central Avenue
S said when attending 57 Grand Central Avenue he would consume alcohol and watch pornography. He got to know Keith and Mrs Jones. S said that he, the accused and Keith would drink Keith’s home brewed beer. On occasions Mrs Jones would see them drinking when she returned from work. His description of the drinking at the premises had a ring of truth about it.[30] His description of the colour of the brew may not have been correct but that does not alter my view of his evidence.
[30] T 55.
S also said that they would watch pornographic movies.[31] He said all three would watch the movies which he thought may have been kept in Keith’s room. He thought Keith usually put them on. None of the movies involved homosexuality. I find that such episodes took place and most likely when Mrs Jones was at work.
[31] T 55.
I prefer, as mentioned, the evidence of S generally compared with the accused and his family.
S described one incident when Mrs Jones came home and saw the three of them drinking and watching the pornographic movies. She became angry.[32]
[32] T 73.
On an occasion the accused became really angry with his mother and tore off his clothes.[33] He elaborated on this incident in cross-examination. He said it occurred on more than one occasion.[34]
[33] T 74.
[34] T 136.
The accused, Keith Jones and Dora Jones denied any event like that happening. Keith Jones said pornography was never shown to S in his presence. Mrs Jones said the same and specifically denied this style of incident.
I have already mentioned that I reject the evidence of the accused. I do not accept the evidence of Keith Jones. Whilst I have some reservations about the evidence of Mrs Jones I am unable to reject her evidence outright. I accept her version of this incident, or more accurately that it did not occur, as a reasonable possibility.
I am therefore unable to rely on S’s evidence in relation to these specific instances. I accept his evidence that at these premises he did consume alcohol and watch pornography but I find that he has exaggerated or confused the specific episodes involving Mrs Jones.
It was not suggested by S that any of these events led specifically to any act of a sexual nature. To an extent they are collateral matters. However the presence of alcohol and pornography is relevant to the alleged sexual encounters at the River Parade address and therefore the question of credit impacts more directly on the issues.
I therefore must view S’s evidence with caution. I find however that S’s exaggeration or confusion on this issue does not affect my general assessment of his credibility and reliability.
Events at River Parade
S said that drinking beer and watching pornography also occurred at the River Parade address. He thought he was 15 years old at the time.[35] He and the accused watched them in the lounge room.
[35] T 74.
The sexual contact allegedly occurred after the watching of pornography.
The River Parade address was a beach shack but in good condition. It had two bedrooms. Mark Henwood, a friend of the accused, stayed with them for a few months “down the track”.[36] This point was disputed by Mr Henwood.
[36] T 77.
S drew a sketch of the layout of the house at River Parade.[37] He said the accused slept in bedroom one and he used bedroom two. S said that when Mr Henwood came to stay Henwood occupied bedroom two and that he would sleep on a sofa mattress in the accused’s room.
[37] Exhibit P4.
It was suggested to him in cross-examination that the plan he drew[38] was not entirely accurate and that a small room opposite the bathroom had been omitted. He agreed such a room existed. He denied the suggestion that it was the room he used to sleep in.
[38] Exhibit P4.
S gave general evidence about what occurred sometimes after they had been watching pornographic movies.
QTell his Honour what would happen.
ABasically we’d go to Mike’s bed, be pretty excited and stuff, Mike would undress, I’d hop in his bed in my jocks, we’d start masturbating, like not each other but ourselves and be talking about girls and I would be asking Mike a lot of sexual questions because I was wanting to know a lot about girls and stuff like that and Mike basically told me what I wanted to know and that’s how it sort of started to build, like just laying in bed masturbating and things led on from there, like not the first time, but the second time it started to build into touching each other.
QHow did that occur, describe for his Honour.
AI really felt like I was being guided by Mike as in to put my hand on his penis and help masturbate him and basically he tried to get me to mimic what girls were doing to the guys in the pornos, as in oral sex and that kind of stuff.
QHow would he get you to do those things.
AI don’t know.
QWhat happened.
AWell I’d just be drunk and I’d just like go to bed with Mike and just basically do what he wanted me to do. Like he didn’t specifically tell me to do things but I felt like I was being guided, like, to do – I just felt I was doing what he wanted done, like.
QCan you give his Honour some examples of how you were guided.
ABy his hands, to his penis and stuff like that. Sometimes like, you know, he’d come home at 6 in the morning, so it was daylight, so I could actually – the light’s coming through the windows, and you know we’d start drinking by – Mike always had a rule when he come home from night shift he generally liked to – he wanted to be in bed by 10 o’clock –
HIS HONOUR
QSo these things were happening you said between 6 and 10.
AYes, the drinking would always start first, watching movies, having something to eat and stuff.
S said that sexual contact started pretty quickly after the accused moved to River Parade.
QWhen did that start happening.
AIt started really happening pretty quick from what I remember because we’d already been watching movies prior to getting to that house and me and Mike had really had a big bond before I even left Slade Cottage, like we were so close, so it just seemed like it was natural, if you can understand what I’m saying, the things that were happening with Mike, to me at the time didn’t seem like it was bad or anything like that. I knew it wasn’t right but it was better than other things I’d experienced in my life.
S stated that he performed oral sex on the accused about 10 times. He said that the accused performed oral sex on him about 10 times.[39]
[39] T 83.
In describing the masturbation S said:
QDid Mike ejaculate from any of the activities you have been telling his Honour about.
ANot from my giving him oral sex or anything like that, I wouldn’t have allowed that, no way.
QDid he ejaculate from other activities tht you saw.
AYes, masturbating yes.
QWhen you say masturbating what do you mean.
AHe’d ejaculate all over his stomach.
QWas that when you were masturbating him.
AYes.
QOr he was masturbating himself.
ANo, he always finished himself off.
QDid you ever ejaculate from any of the activities you have been describing to his Honour.
AUnfortunately, yes.
S said that when the sexual activity started at the River Parade address Mr Henwood was not living there. S said that the sexual activity was “really dropping right off at that time”.[40] He said the only time things happened when Mr Henwood was living there was when Mr Henwood was at work.[41]
[40] T 84.
[41] T 84.
S thought that sexual activity would have occurred over 50 times and over a 12 month period.[42]
[42] T 85.
S said that the sexual activity lasted for about 12 months.[43] He thought that over that period of 12 months he was, at some stage in SAYTC or at the Southern Group Home.[44] There may have been a time when he was placed in his mother’s care.
[43] T 85.
[44] T 85.
This evidence is consistent with the year being either 1986 or 1987.[45]
[45] T 86.
S gave evidence about bringing home a “penis pump”. The accused brought it home and they tried it together in the bathroom. He thought he was 15 years old at the time.[46]
[46] T 90.
S gave evidence in support of Counts 2 and 3 on the information. He said:
QWhat are the circumstances of the other one that you recall.
AThe other incident I am talking about is one time me and Mike had been watching pornos, drinking heavily, and we have gone to his bed with the same stuff, masturbation. Oral sex had been happening on this occasion. He was like ‘Give me oral sex’. I went to stop, like finish the oral sex, I have gone to get up. Mike sort of like pulled me up, started kissing me, I was sort of sitting on him leaning over him, being cuddled and kissed. I was like lifted up by my shoulders, like pushed up like that. As I was pushed up, his penis, like, entered my backside. It was in and out very quickly. It’s not like really it hurt me. I jumped off Mike and went on to the sofa couch and laid there on the sofa bed.
QDid his penis penetrate your anus.
AYes, it burnt.
QWas his penis erect at the time.
AYes.
QHow far did his penis penetrate your anus.
AI would say at least half of his penis.
QHow long did that penetration last for.
AI felt it penetrate. As soon as it went in I jumped off. Like it was just so quick. It was less than a second. As soon as it had gone in, I was like straight off. Like it was really unexpected and it burnt. It was really painful. I felt dizzy from it.
When cross-examined about the dates when he was at the River Parade address S conceded that he couldn’t really remember dates.[47]
[47] T 174.
S stated that he stayed at the River Parade address but never lived there.[48]
[48] T 176.
He denied that Mr Henwood was living there when he first moved in.[49] S said that he wasn’t sure when it was that Mr Henwood first moved in.[50] He agreed that he had said earlier that it was about three quarters of the way through his time at River Parade that Mr Henwood came to live there but that he was “not a hundred-per-cent sure”.
[49] T 176.
[50] T 176.
S said: “Well, it seems that way, yes, but I can’t put the date or months or anything. It just seemed like I’d been there for a while.”
S denied that he was 17 years of age before he attended the River Parade address. He said he remembered “being there lots before then”.[51] When cross-examined about his movements he said he thought he was in the “Marion Units” when he was 17.[52] The records showed that he was 16 when in the Marion Units. S conceded he could have been wrong about that. He frankly conceded “It’s many years ago”.[53]
[51] T 193.
[52] T 193.
[53] T 194.
S said that the first time he went to the River Parade address the accused was “moving in”.[54] He denied that Mr Henwood lived there for the entire time that the accused lived in the house. S said that Henwood moving in seemed “months later”. S denied strongly that the accused and Henwood had been living in the house for over a year before he first went to River Parade. He denied that he only stayed at the address from late 1987 to early 1989.[55] S said the sexual abuse ceased when Mr Henwood moved into the premises.[56]
[54] T 194.
[55] T 195.
[56] T 212.
S denied sleeping in the “little study or office”.[57]
[57] T 197.
S denied that he had rung the accused sometime in the 1990s to help him “sue the government”. I accept his denial about that.
The Defence case
The accused gave evidence that he first moved into the River Parade address in August 1986. He rented the premises.[58] He told me that Mr Henwood moved into the premises about a week later. Mr Henwood worked as a security officer with MSS: this was where the accused was working at the time. He confirmed in evidence when looking at Exhibit P4 that the plan drawn by S of the layout of the premises at River Parade was not accurate. The accused referred to it as a small study.[59]
[58] T 345.
[59] T 346.
It was an agreed fact that on 3 February 1989, Mr Trevor Westlake, the landlord of the River Parade address, wrote a reference for Mr Michael Jones that stated that Mr Jones had been renting the River Parade address from Mr Westlake for approximately two and a half years from the date of the letter.[60]
[60] T 704.
I infer from this agreed fact in conjunction with the evidence of the accused and Mr Henwood that the River Parade residence was leased by the accused around mid 1986.
The accused stated that Mr Henwood’s bedroom was marked as number 2 on the plan. At the time Mr Henwood was involved in a “marital breakup”. The accused said that S first came to the house in November/December 1987: it was hot and close to Christmas. S contacted him by telephone. He said that S told him that he was no longer a ward of the State and that he was in a bit of a “desperate situation for somewhere to live”. The accused said that S had obtained his phone number from his brother Keith who at that stage was still living at Grand Central Avenue.
Mr Henwood was allegedly at home when S had rung and the accused discussed with him the possibilities of S staying at the house.[61] Mr Henwood agreed and S moved in “within a few days”. S stayed in the small study, not in the spare bedroom (marked B2 on Exhibit P4).
[61] T 350.
The accused said this was the first time S had been to the residence at River Parade.
I do not intend to go through the cross-examination of the accused. Quite simply I do not believe his evidence. I have no doubt that his evidence is a mixture of lies tied in with some evidence of Mr Henwood. The accused had spoken to Mr Henwood a “few months” before the trial started.
I simply do not accept his evidence as to the contact he had with S. He could give no sensible explanation for how contact with S ceased after the Department tried to stop his contact with S. I have no doubt that S continued to have contact with the accused as he alleged. It is likely all though I cannot find it proved beyond a reasonable doubt that S had been at the River Parade address before Mr Henwood moved in. I have no doubt that the accused tailored his evidence to fit with Mr Henwood’s.
Mr Henwood gave evidence. Parts of his evidence troubled me a great deal. Clearly he despised S and made no secret of the fact. Further he liked the accused and also made no secret about that. When questioned about his contact with the accused a few months before trial he was very evasive. The discussion he had with the accused was likely to have been more extensive than he was prepared to say. I was suspicious of his “recollections” as to particular events in question. However there were other parts of his evidence that could not necessarily be rejected simply because I rejected other parts.
Mr Henwood was able to recollect the time when he first came to River Parade as being August 1986. He pinpointed the date by reference to his matrimonial separation that occurred in July 1986.[62] That is an event that is likely to be remembered. He told me that in July 1986 he had moved in with his mother but that arrangement had proved unworkable. He said that the accused “kindly offered me share accommodation in a newly acquired beach front property”. He remembered that the accused had only recently moved in and that there were boxes still unpacked.
[62] T 652.
Mr Henwood told me that he occupied the second bedroom (marked B2 in Exhibit P4). He confirmed that there was an extra room not marked on the diagram.
Mr Henwood said that he first heard S’s name in November 1987. The accused took a telephone call from S and came to speak to him as to whether S could be given emergency accommodation. He said “he had no idea where the property was and needed Michael to pick him up and bring him to the property”. He tied this event to his daughter’s sixth birthday.
I am very suspicious of that evidence. His reason for pinpointing the date of November 1987 was unconvincing. His explanation of the phone call and its content smacked of collusion with the accused.
Having said that Mr Henwood gave a description of what life was like with S after he moved in. He explained that life was difficult as he was trying to have access to his two young children and S’s behaviour made that difficult. He ended up having access visits in the local park rather than the house. He was adamant that S was not at the house from August 1986 to early 1989. He said the time was a lot shorter – a matter of some 14 months or so.
He also gave evidence of how hard working the accused was and how he had to go into his bedroom to wake him up on a regular basis. He exaggerated that evidence.
It was clear from the evidence of Mr Henwood that the accused had never told Mr Henwood of his long standing interest in and relationship with S. Mr Henwood was clearly surprised at the suggestion that the accused had made strenuous efforts to foster S prior to S living at River Parade.
The failure of the accused to tell Mr Henwood of his prior relationship with S simply confirms the deceitful and manipulative way the accused behaved when S was, in some way, involved. It was evidence that confirmed that the accused had an obsession about S.
The evidence of Mr Henwood was crucial in parts to the defence case. If S did not arrive at the River Parade address until November 1987 then S would have been 17 years of age. One of the elements of every offence alleged would not be made out. Whilst I do not believe all of Mr Henwood’s evidence there are parts I cannot reject outright. I am unable to reject outright that Mr Henwood moved into the River Parade address in about August 1986 and that S moved in later, possibly as late as November 1987.
Discussion
Generally I believed S’s evidence. I have no doubt that he had significantly more contact with the accused than the accused was prepared to admit. I reject the evidence of the accused for reasons I have already discussed. I rejected the evidence of Keith Jones. It in my view was nothing more than what the accused told him to say. I reject most of his mother’s evidence except on the points I have already discussed.
Mr Henwood as a witness however stands on a different footing. I reject parts of his evidence. I am highly suspicious of parts and there are parts which may or may not be correct. There are two scenarios that are consistent with the evidence of S.
1.S moved into the River Parade premises a few months before Mr Henwood in 1986. Sexual activity commenced before Mr Henwood moved in and then continued for sometime when Mr Henwood was at work. Mr Henwood did not suggest that there was no opportunity for that to occur.
2.S moved into the premises as suggested by Mr Henwood. Sexual activity occurred as stated by S but it could not have started before November 1987. At the time S would have been 17 or nearly 17 years of age.
I am of the view that the first scenario is more likely. However there are some difficulties with it. It was common ground that S moved out and ceased contact with the accused in or around January 1989. If the first scenario is correct then S must have lived with Mr Henwood for over two years. Neither S nor Mr Henwood suggested they were in the premises together for that long.
S also said that the sexual contact ceased after Mr Henwood began living there. I took that to mean that it gradually rather than abruptly stopped. However, S said the accused was “moving in” when he first went to River Parade. Mr Henwood said the same thing. If S moved in shortly before Mr Henwood, say a few weeks or even months, then the sexual activity could not have occurred for a period of about 12 months.
Of course it is possible that Mr Henwood was wrong when he asserted that he moved into the River Parade address in August 1986. He was, however, able to pinpoint that time as around when his marriage finished. As mentioned earlier that is a date, at least by year, that is likely to be remembered. It would not be obvious to Mr Henwood, unless he had an intimate knowledge of the case, of the importance of that date.
In the second scenario S would only have been at the premises for about 15-16 months. In a general sense that fits his own estimation. S however says that he moved in before Mr Henwood. Mr Henwood was definite that he lived at the premises for about 15 months before S came to live there.
I am unable to reject as a reasonable possibility his evidence as to when he first moved into River Parade. It is a reasonable possibility that he did move in at that time.
S had given evidence that Mr Henwood did not move into River Parade until at least months after he had been living at the River Parade address. From the agreed fact of the land agent Mr Trevor Westlake, the landlord of the River Parade address he wrote a reference for Mr Michael Jones on 3 February 1989 which stated that Mr Jones had been renting the River Parade address from Mr Westlake for approximately two-and-a-half years from the date of the letter, it is a likely inference that the accused rented the property in mid 1986.
I cannot reject as a reasonable possibility that Mr Henwood is correct in saying that S moved in some time after that. Whilst I am suspicious of his evidence regarding the fixing of the time S moved in to River Parade in November 1987 I cannot reject it beyond reasonable doubt.
S candidly conceded he could not be precise about dates. No one could expect him to be, given what he had experienced both then and subsequently.
Findings
I have no doubt and I find that the sexual contact as alleged by S took place. It perhaps was not as frequent as he now remembers but I have no doubt it occurred generally as he alleged and I find that element of Count 1 is established beyond reasonable doubt. I find the acts particularised in Counts 2, 3 and 4 occurred as alleged.
In relation to Counts 1, 2 and 3, the prosecution must prove beyond reasonable doubt that S was under the age of 17 years at the time of the offending: Count 4, the prosecution must prove that S was under the age of 16 years at the time of the offending.
As mentioned I cannot reject as a reasonable possibility the evidence of Mr Henwood as to the dates. Whilst I think it likely that the sexual contact between S and the accused commenced in mid 1986, I cannot be satisfied of that beyond reasonable doubt. I am unable to exclude the possibility that the sexual contact did not commence until November 1987. That means the prosecution have not established beyond a reasonable doubt that S was under the age of 17 years in relation to Counts 1, 2 and 3 and under the age of 16 years in relation to Count 4.
The accused is entitled to be given the benefit of that doubt and I therefore find him not guilty of Counts 1, 2, 3 and 4.
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