R v Kemp
[2012] SADC 149
•8 November 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KEMP
Criminal Trial by Judge Alone
[2012] SADC 149
Reasons for the Verdict of Her Honour Judge Davey
8 November 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with the offence of Persistent Sexual Exploitation of a Child; he was the complainant's tutor at the time of the alleged offences.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 s50; Evidence Act 1929 s34M, referred to.
R v Szejnoga (1998) 199 LSJS 97, considered.
R v KEMP
[2012] SADC 149Introduction
David Kemp is charged with Persistent Sexual Exploitation of a Child. It is alleged that between 1 February 2011 and 7 September 2011 he committed more than one act of sexual exploitation of JW and that those acts of sexual exploitation occurred over a period of not less than three days. It is alleged that the conduct comprising the sexual exploitation were touching JW on the penis and testicles on more than one occasion and stroking JW on the penis on more than one occasion. The accused pleaded not guilty. He elected for trial by judge alone.
At the relevant time, the accused was engaged as a tutor for the complainant, JW. The offending allegedly occurred during tutoring sessions at JW’s home. JW is currently 12 years old. Proof of the offence requires that I am satisfied beyond reasonable doubt of the credibility and reliability of JW’s evidence as to the alleged touchings. The other evidence in the trial concerned the general circumstances of the tutoring arrangements, alleged incidents whereby the accused’s alleged particular interest in JW was established, and complaint evidence (whether it amounted to same will be discussed further). The accused also gave evidence denying the offending and about other circumstances of his interactions and relationship with JW and his family.
For the reasons set out hereunder, I am satisfied beyond reasonable doubt that David Kemp is guilty of the offence charged.
The charge and the law
The accused is charged with persistent sexual exploitation of a child. Section 50 of the Criminal Law Consolidation Act 1935 provides:
50—Persistent sexual exploitation of a child
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3) If—
(a) at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and
(b) the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time, the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a) subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii) the alleged conduct comprising the acts of sexual exploitation;
(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section, must be charged in the alternative.
(5)A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6)This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
(7) In this section—
prescribed age, in relation to a child, means—
(a) in the case of a person who is in a position of authority in relation to the child—18 years;
(b) in any other case—17 years;
sexual offence means—
(a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b) an attempt to commit, or assault with intent to commit, any of those offences;
or
(c) a substantially similar offence against a previous enactment.
(8)For the purposes of this section, a person is in a position of authority in relation to a child if the person is—
(a) a teacher (within the meaning of the Education and Early Childhood Services (Registration and Standards) Act 2011) engaged in the education of the child;
or
(b) a foster parent, step-parent or guardian of the child; or
(c) a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) providing pastoral care or religious instruction to the child; or
(d) a medical practitioner, psychologist or social worker providing professional services to the child; or
(e) a person employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or any other person engaged in the administration of those Acts, acting in the course of his or her duties in relation to the child; or
(f) an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
In this case, the charge laid is as follows:
South Australia
2012
The Queen v DAVID KEMP
Court of Trial
DISTRICT COURT OF SOUTH AUSTRALIA
10th April sessions
Information of the Director of Public Prosecutions
DAVID KEMP
Is charged with the following Offence
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
David Kemp between the 1st day of February 2011 and the 7th day of September 2011 at Marden, committed more than one act of sexual exploitation of [JW], a person under the age of 17 years, over a period of not less than 3 days.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation were: touching [JW] on the penis and testicles on more than one occasion; and stroking [JW] on the penis on more than one occasion.
I note that the section creating the offence does not require each act of sexual exploitation to be particularised to the extent that it would be necessary were that act charged as a specific offence.
There was no dispute as to whether or not the conduct, if proved beyond reasonable doubt, would amount to persistent sexual exploitation of a child. The issue at the trial was whether or not the sexual touchings alleged by the complainant have been proven, beyond reasonable doubt, to have occurred.
Evidence of JW
JW is 12 years old. He was born on 2 May 2000. He is presently in Year 6 at school. He lives with his parents SA-W and GW, and his brother, LW and sister, SW. JW also has two half-siblings; a brother and sister who are aged in their 20s.
The accused, David Kemp, a retired teacher, was engaged to tutor LW, JW and SW. In 2009 he tutored LW and in 2010 he commenced tutoring JW and SW. There was a difference in the evidence as to when the tutoring of JW commenced. In my view this was not important. JW was 10 years old at the time. The tutoring occurred at JW’s home during school term time on Wednesday evenings and, generally, on a weekly basis.
In 2011, there were some occasions when the tutoring did not take place. The accused and SA-W gave evidence of those missed sessions. In my view there is no material significance in this issue. JW does not describe particular occasions where the offending behaviour occurred. On any view of the evidence there were 18-20 sessions in 2011. The last session occurred on 7 September 2011. JW complained to his parents the following week.
JW said that when his tutoring originally occurred he was tutored in the play room[1] and he later agreed that there was also some tutoring in the lounge room of the house. The location of the tutoring eventually became the study. JW didn’t recall when the tutoring moved to the study although SA-W said that occurred in about March 2011.[2] JW said that the sexual touching occurred during tutoring sessions which took place in the study.
[1] Refer to Exhibit P1
[2] T143
JW described the nature of the tutoring as including maths games, times tables and fractions. JW said that the tutoring ended at about 8.30 pm or 9 pm. The tutoring occurred after the evening meal and after JW had showered. The original arrangement for the tutoring was that JW had his tutoring first followed by his sister SW. At some stage in 2011 that arrangement changed whereby SW had the first lesson and JW’s session followed. JW said that the touching of his genitals occurred in those sessions when his tutoring followed SW’s.
JW described the set up in the study as being a round table with wooden seats around it. He said the study door was always closed.
JW said that the accused did not spend all of the tutoring session on the subjects. JW said that the time they spent learning was minimal and the rest of the time they spent talking and that David touched his private parts. He said that the accused would talk about his private parts and that the accused told him that he had taught boys sex education when he was a teacher.[3] JW said that the accused said to “just ask me anything”.[4] JW said that the accused made comments like “Oh, your penis is smooth” and “stuff like that”. JW said that the accused would feel his penis by pulling his pants down whilst JW was sitting on the accused’s left hand side. JW described the accused using his finger or hands; he said the accused would start off by stroking his penis and then he might lift it up, his “ball sac”.[5] JW described moving away after he was touched in this way and that he would pull his pants up and that the accused would continue talking about his penis or balls. He described the accused making comments like “yours is very smooth, others might be rough”. He said this occurred more than once but it couldn’t have happened as many as a hundred times. He said that out of a hundred times, “he would do it 75” times, in other words, most of the time.[6] In cross-examination JW demonstrated how the accused touched him.[7] JW said sometimes he’d do it once, but other times more than once.[8]
[3] T35
[4] T36
[5] T38
[6] T39, T52
[7] T92-93
[8] T94
JW said that when tutored he usually wore boxers which he described as silky shorts that he slept in. He said that during earlier tutoring sessions, he didn’t wear underwear under the boxers. JW said that as a result of being touched he thought of ideas that he could do to stop the accused “doing it”. He started wearing undies under his boxers. He said this made it harder “for him to touch my penis or my balls”. He said it would be harder for him (the accused) to pull both of them off. He said that after he started wearing undies, the accused started pulling down his undies as well as his boxers. He said he kept on jumping and moving away. He said that he started to wear track pants. He said that he did that because they were thick and they were hard to take off and he wore his boxers and jocks underneath his track pants. He said that he only wore track pants for a few lessons and then he told his parents. He said he kept on moving away and he (David) was right next to him.[9]
[9] T40
JW said there were discussions about his circumcised penis and that the accused looked at his penis and said “do you know what a circumcised penis and an uncircumcised penis is?” JW said because at that stage, he hadn’t had sex education, he didn’t know. He said that during that conversation there was no-one in the room with him apart from the accused.[10]
[10] T42
He said that he generally wore a t-shirt during the lessons and that the accused would sometimes lift up his t-shirt and talk about his muscles and he demonstrated to me how that was done. JW said that the accused pulled up his t-shirt a few times.
JW said that when his shorts or pants were pulled down they were pulled down to a bit above his kneecaps. JW said there were lots of times when the accused would touch his penis or balls.
JW said that towards the end of one lesson he was tired and he, JW, lay on the floor. He said the accused started lying on top of him and that he half rolled on top of him. He said that he was lying on his back and that the accused rolled half his body onto him. He described not being able to breathe because the accused was on top of him.[11]
[11] T45-47
With respect to Tic Tacs (a small mint lolly), JW described the accused putting one down his top or down his pants. He described them playing a maths game and that the accused would open up his shirt and put a Tic Tac down there.[12] JW demonstrated that the accused put Tic Tacs down his top and up his boxer shorts. He said that this happened more than once but he was not sure how many times.
[12] T47
JW was asked whether he told his parents about being touched by the accused. He said that when he was on a bike ride he decided to tell his dad. He said he wasn’t really sure why he waited. He said he felt uncomfortable about the touching and he said that during the bike ride he started dragging behind and that he asked his dad to come to him and then told him what happened.[13] He said he spoke to his father about what David had been doing but he was not sure what he said. JW said that he then spoke to his parents about it the next day. Of course, this is contrary to his parents’ evidence that the complaint was that night. He didn’t recall what he told his mother although the topic was about David touching his private parts.
[13] T51
JW could not recall either the first or the last time when the accused touched his genitals.[14] I asked JW how many times it happened and he said out of 10 tutoring lessons it happened 7 times. I understood that JW was saying that it happened on 7 out of 10 occasions. JW thought he was tutored on more than 20 occasions in 2011. I note that the accused’s 2011 diary[15] notes the dates of tutoring.
[14] T52
[15] Exhibit D7 and the schedule prepared by defence counsel
During cross-examination JW was asked about how long he and the accused were focusing on school work. JW confirmed that about three quarters of an hour or so was taken up with just talking about the topics such as the accused’s grandchildren, football and topics unrelated to school work. JW was also asked about the order in which the tutoring occurred. He agreed that initially he had his tutoring before his sister SW and then at some stage the times changed so that SW had her tutoring first and his followed her. He agreed that occurred but couldn’t remember when that changeover took place. JW also described more about the frequency and length of time of the touching.[16] JW was also cross-examined about alleged inconsistency between the account he gave police and his evidence about the topic of Tic Tacs.[17]
[16] T93, 94
[17] T78-82
Evidence of LW and SA-W
LW is 14 years old. He was born on 24 May 1988 and is in Year 8 at high school. He is the complainant’s older brother. He was tutored by the accused at an earlier time. He described occasionally being in the room during JW’s tutoring sessions.
LW gave evidence of things said by the accused which made him feel uncomfortable. He referred to the accused telling the boys how their body was changing and at one point said that “one ball would hang lower than the other”.[18] He had difficulty recalling all that was said but recalled a particular discussion about circumcision. LW said that the accused made comments about how different people have different sizes and lengths of the penis and then there was a discussion about some people being circumcised and some people were not. He said that when that was raised JW said that he (LW) was circumcised and said that he, JW, was different. He said that after that was said, JW pulled out his penis and showed David Kemp his penis saying that his was different from LW’s.[19]
[18] T113
[19] T114-116
LW described being at his local tennis club during 2011 and playing tennis on a Saturday morning. He said he had finished a game and saw the accused; LW said “hello” as he walked past him and the accused said to him he “was just looking for JW”. The accused also said that he was looking for his grandchild.[20] During cross-examination LW said that he had earlier mentioned that he would be playing tennis that day but denied that he had requested that the accused come out and watch him.[21]
[20] T117
[21] T118-119
During cross-examination LW agreed that he would go into the study whilst JW was being tutored and drop off some food or a drink. He said he usually knocked on the door because the door was closed. He said that it was always shut.[22] LW said that he would go into the room, during the tutoring, some of the time.[23] He agreed that he would sometimes go into the tutoring for a chat and that David Kemp was quite talkative and that he liked talking to him.
[22] T120
[23] T122
LW also described the accused speaking about changes arising from puberty such as getting pubic hair, underarm hair and so on. LW denied any suggestion that he raised these topics. It was suggested to LW that it was either he or JW that raised the topic of one testicle hanging lower than the other and he denied that was the case. He also denied that he or JW had raised the topic of pubic hair; rather it was the accused.[24]
[24] T133
During cross-examination LW was asked whether he raised the topic of the circumcision and he denied that. He also denied that the accused told him that he needed to speak to his parents about sexual matters.[25]
[25] T128
SA-W is the mother of LW, JW and SW. SA-W confirmed the general arrangements for tutoring. With respect to the question of the study door, she said that the door was mostly ajar, sometimes closed depending on the air-conditioning.[26] She said that whilst the tutoring was occurring she sometimes walked past the study and everything seemed to be fine. She thought that the accused and JW had a good rapport.
[26] T143
SA-W said that in 2011, when tutoring was to occur, she observed that JW was wearing more layers of clothing on his bottom half. She said that generally JW had a shower before David Kemp came to do the tutoring and he would be dressed in a t-shirt and boxer shorts, ready for bed later on. As the year progressed she noticed that JW was wearing more layers on his bottom half. She said that he showed her one day; he was wearing underpants on top of boxer shorts and either winter pyjama pants or track pants on top of the boxer shorts. She said that most of the time previously he had only worn a t-shirt and boxer shorts and this was a significant change. She thought that the change occurred in June or July of 2011.[27]
[27] T146
SA-W was cross examined about the change in JW’s clothing. She said that JW usually wore a t-shirt and boxers in summer and winter and she particularly noticed the change in his dress.[28]
[28] T145
SA-W also said that the accused offered to babysit the children, specifically the boys, in the school holidays during the July school holidays of 2011.[29] This evidence was not challenged.
[29] T149
SA-W gave evidence about conversations with the accused about sex education. She said that the accused had come to her and said that JW had been asking questions about his own body. The accused told her that he had taught sex education at school and was qualified to do so and he asked her if it would be all right if he spoke to JW and answered some questions. She said that she told him “no”. He referred to a book that he could bring, namely the book “Where Do I Come From”.[30] SA-W said that at a later date the accused brought the book to the house and that she and her husband had a discussion about whether it was appropriate to give it to JW and they decided not to and it was returned to the accused. SA-W said that she did not ask to see the book but rather the accused offered to bring it and she told him that he could bring it and that she would look at it and discuss it with her husband.
[30] T149
SA-W said that at some stage LW informed her about JW showing his penis to the accused when there was a discussion about he and LW being different, ie in respect of circumcision. SA-W said the conversation about sex education for JW occurred at some stage after learning of the incident where JW had exposed himself.[31]
[31] T166
SA-W also gave evidence of part of the complaint by JW. She said that she had a conversation with JW and GW after tea at around 6 pm. GW said that JW had told him something on his bike ride that afternoon; that JW had said that he didn’t think he needed David as a tutor anymore and that David was doing a lot of talking and that he wasn’t really learning anything anymore. Then GW said to JW “now tell your mum what else you told me”.[32] JW told his mother that David (Kemp) had been trying to pull his pants down to look at his penis; that he had also tried to put his hand up JW’s boxer shorts and that he had also opened the top of JW’s pants and put a Tic Tac down there. JW said that was why he was wearing more layers on his bottom half because he was trying to make it more difficult for David to pull his pants down.
[32] T151
SA-W said that she then rang the accused to stop him coming over to do the tutoring that night; she did not tell him of the accusation. She said that shortly afterwards GW went out to deal with another child and then they spoke to JW again.[33] This occurred in the master bedroom; at about twenty to eight in the evening. She said that she asked JW some questions and also asked JW to tell his father of an incident that had previously occurred when she had been told that JW had dropped his pants and shown his penis in the context of a discussion about circumcision. She said that during that conversation JW said that if they (his parents) wanted to organise another tutor for him, that would be fine. She asked him some questions about the incident where JW had exposed his penis and there was a conversation about circumcision.
[33] T152-153, T163
SA-W said that later that night she was reading with JW and whilst they were reading, he stopped and said he had more to share with her about what had occurred.[34] This was at about quarter past eight. She said “he stopped reading and said that he had something else to tell me”. He then told her that David had, on another occasion, pulled open his pants and was talking about the hairs that JW had begun to grow there and that he actually stroked JW’s penis and looked closely at the hairs. She asked JW if that was the only time that David had seen his penis and that JW said no, that the accused had done it up to 1, 2 or up to 3 times each session.[35] She said that JW told her that the touching happened when the order of the tutoring had changed, that is, when SW had had her tutoring first during the evening and JW followed. That change occurred in 2011 and, according to her memory, during March 2011.[36]
[34] T164
[35] T24, T166
[36] T174
SA-W was asked to estimate the time when the conversation with the accused about sex education occurred and she thought it was June or July 2011.[37]
[37] T166
SA-W described the accused asking if he could come and view a semi-final football game that JW was playing in. She said that David (Kemp) had made some enquiries about JW’s semi-final football game and asked if he could come along and watch.[38] She said that the semi-final was held at the Hope Valley Oval. She initially believed that it was at the Tea Tree Gully Oval and realised that the venue had changed. She said that whilst she was at the game the accused arrived and explained how he managed to find his way to the correct oval by attending at the Tea Tree Gully Oval, speaking to people at that oval and making enquiries via a number of people and eventually found out the correct oval where he attended to watch the game.[39]
[38] T167
[39] T167, 168
SA-W was cross-examined about JW’s difficulties at school. In response to a question about JW distracting other students, she denied that and said that her understanding was that JW was being distracted by other students. SA-W was asked about the engagement of the accused to tutor and agreed that it was primarily to assist with spelling, reading and maths. It was suggested to her that she spoke to Mr Kemp suggesting that JW was having some confidence issues at school. She said she didn’t recall a conversation to that effect.[40] She did not agree with the suggestion (nor was it expressly put to her) that she asked the accused to assist with those confidence issues.
[40] T172
SA-W was cross-examined about the dates of some of the tutoring sessions and agreed that there were some occasions when, for one reason or another, the tutoring did not take place.
SA-W was asked about JW’s 50th football game for the local football club. She said she couldn’t recall whether the accused attended. She said that that milestone would have been celebrated back at the club’s home ground.
Complaint Evidence
The prosecution led evidence from JW and his parents as to “the complaint” made by JW. That evidence concerned several conversations between JW and his parents on 14 September 2011.
Section 34M of the Evidence Act 1929 provides:
34M Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i) to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
There was an objection to the admission of the complaint evidence. As I understand the objection, the defence did not object to the prosecution adducing evidence as to how the allegation first came to light but said that the evidence from JW and his parents in this regard could not be used as evidence of the consistency of JW’s conduct.
Evidence of complaint may be evidence of consistency, or lack of consistency of the conduct of the complainant and is relevant to the reliability or unreliability of that evidence. Such evidence may buttress or support the complainant’s credibility. Chief Justice Doyle described the way in which such evidence may be relevant in R v Szejnoga and said:[41]
The evidence is admitted because of its tendency to prove consistency of behaviour. That consistency has, I consider, two aspects. Firstly, consistency in the sense of making a complaint when one would expect a complaint to be made. That is the relevance of the assumption referred to by Gaudron and Gummow JJ, that victims will complain at the first reasonable opportunity. The second aspect of consistency is consistency between the incident that is alleged and the terms of the complaint. That does not mean, of course, that all of the details must be in the complaint. Consistency is assessed more broadly. But once again, the average person would put some weight, when assessing the credit of a witness, upon consistency, or the absence of it, between the contents of an early complaint and the incident the subject of the complaint.
[41] (1998) 199 LSJS 97
I also note the long experience of the law that persons (often children) who are sexually abused over a period of time by (usually) persons known to them may not complain at the first reasonable opportunity after the first sexual touching. The existence of the offence charged in this case reflects that there may be cases where there are multiple acts of sexual offending over a long period of time. In such cases, there may be little or no significance of complaint evidence. Of course, the evidence of what the complainant said is not evidence of the truth of what was said.
In this case, there is an issue as to the weight to be given to the evidence of complaint and whether it has any significant impact upon the credibility and reliability of the complainant.
JW’s father, GW, gave evidence relating to the complaint. He was generally not at home on Wednesday evenings when tutoring occurred although it was clear that he knew the accused and chatted with him from time to time.
GW described JW raising the topic of the accused with him during a bike ride. He said that JW came alongside and said “do I have to have tutoring any more … I’m not learning anything and we can save money”. He said that JW complained “the stuff he gives me, a 5 year old could do”. His father said he asked, “are there any other reasons why” and JW answered “not really”. GW then asked JW “has he touched you in any way” and JW said “on the leg” and told his father that he had tried to pull his pants down and that he had actually pulled his pants out and dropped a Tic Tac down.[42] GW said he wanted to talk to JW about this issue but the other children were there and there wasn’t an opportunity to further speak about it. He said that later, back at the house, they spoke about it with his partner, JW’s mother. At that stage GW asked JW to tell what he had told him earlier. JW told them that he didn’t need David Kemp as his tutor any more and he added that David Kemp had tried to put his hands up his boxer shorts.[43] He complained about not learning anything, that they could save money, and that he was doing the work of a 5 year old.
[42] T200
[43] T202
GW described a further conversation that evening with JW and SA-W in the bedroom. GW said that JW said he was happy to have tutoring but, another tutor. He said that JW said that David had tried to pull his pants down. He said that during that conversation JW told them that he had been with LW and David (Kemp) and that David had been talking about circumcision and as LW had been circumcised and JW hadn’t, that JW had pulled out his penis to show him.[44]
[44] T205
I have already summarised SA-W’s evidence about complaint.[45] SA-W was cross-examined about that evidence. It was suggested to her that contrary to her evidence, she told the police that JW had told her that David Kemp had tried to pull down his pants and that that was different from her account as to JW’s complaint. She said that her understanding of what JW was explaining was that “trying” meant that he was pulling the front opening out and not pulling the pants all the way down.[46]
[45] See paras 36-38
[46] T189
SA-W also confirmed that when complaining about the touching, JW said that he “hadn’t done it for a few weeks” and specifically she said “JW had said it hadn’t happened for a couple of weeks”.[47]
[47] T190
JW didn’t complain after the first sexual touching allegedly took place. On his account there were numerous sexual touchings over many weeks before he decided to tell his father. In my view, that is not surprising given JW’s age, the nature of the touching, the circumstances of the touching and the relationship with Mr Kemp. In my view, JW’s failure to complain at an earlier time does not reflect adversely on his credit. Regrettably it is common experience that persons; including children, who are subjected to numerous acts of sexual offending particularly by persons known to them often do not complain immediately. JW was apparently prepubescent. His knowledge of sexual matters was limited.
Counsel for Mr Kemp pointed to the inconsistencies between JW’s initial complaint to his father and the terms of the complaint as they gradually emerged. It was argued that this evidence is not admissible because it does not have the tendency to support JW’s credibility. In my view the evidence was admissible as to the issue of the consistency of JW’s account as it emerged to his parents and also with the evidence JW has ultimately given at the trial. In the end, I do not consider that the complaint evidence has any supportive effect upon JW’s credibility. However, the criticisms made of JW’s alleged lack of consistency are important to my consideration of the submission that JW is an unreliable witness and I give those matters close consideration. Whilst the evidence was admissible, I did not find it of any use or weight in supporting the prosecution case.
Other criticisms of the prosecution case
I have given careful consideration to all of the defence submissions. I particularly note the following:
·The alleged unlikelihood of sexual touching in JW’s home, whilst his mother was in the house and whilst, on some evidence, (including SA-W’s) the study door was often open or ajar. The evidence was also to the effect that either LW or his mother would come into the room unannounced;
·That JW’s evidence about “Tic Tacs” varied between what was said to his parents, the police and his evidence at trial;
·The accused’s attendance at JW’s sport events was not sinister. It was consistent with the accused’s friendly manner and if he did have an improper interest in JW it would only draw attention to himself;
·That it was the accused who raised the topic of sex education and JW with SA-W is inconsistent with sexual abuse by him. If he was sexually touching JW, this would draw attention to the topic and his raising of the matter was an indication of his innocence;
·The complaint evidence reveals varying accounts throughout the day and evening which erode or undermine JW’s credibility;
·That JW wearing more layers of clothing was consistent with the onset of the colder months;
·That JW’s agreement in cross examination that the accused was cross at him during his last session supports the accused’s account of those events;
In considering these matters I have had particular regard to the evidence relevant to those topics. In my view, none of these matters cause me to have a reasonable doubt as to JW’s credibility and reliability.
The defence case
The accused was not obliged or required to give or call evidence. He chose to do so. His evidence is to be considered alongside the other evidence in the trial. I give him credit for giving evidence when he was not obliged to do so. In assessing his evidence and the weight to be given to it, I have approached that task in the same way as I would with any other witness at the trial. However, in this case there is the added matter of evidence of good character.
Good character evidence
The accused gave evidence that he had not previously been convicted of a criminal offence. He also called a witness, Glen Hampton, who gave evidence of his good character. Mr Hampton has known the accused since they were at school together in 1958. They both studied at Teachers College and University together and Mr Hampton knows others who know the accused. Mr Hampton gave evidence that the accused was well respected and he thought that he was a conscientious teacher. It was apparent that Mr Hampton was an old friend of the accused and he has primarily known him in social settings. He has not seen the accused teach. Mr Hampton’s knowledge of the accused’s reputation with others may relate to earlier times but there is evidence of the accused’s good character.
I bear in mind the accused’s previous good character in considering whether I am prepared to draw from the evidence the conclusion of the accused’s guilt. I bear his good character in mind as a factor affecting the likelihood of him having committed the crime charged. I also have regard to Mr Kemp’s previous good character in assessing the credibility of the explanations given by him and his credibility as a witness.
Evidence of the accused
The accused is 67 years old. He has been married for 44 years and has three children and four grandchildren. He is now fully retired, having spent most of his professional life teaching in various schools throughout the State. He qualified at Adelaide Teachers College and the University of Adelaide and completed his training in 1966. After retiring from classroom teaching, he commenced tutoring in 2002. He said that he started tutoring LW in 2007 and commenced tutoring JW and his younger sister SW in 2010.
The accused denied any sexual touching or any sexual impropriety with JW. He denied any special or sexual interest in JW and explained that any discussions involving JW on sexual topics were initiated by JW.
The accused was asked whether there were occasions where JW raised issues of a sexual nature. The accused said that around the end of Term 1 (2011) he recalls JW saying something to the effect that he was born out of his belly button and the accused explained to JW that “that’s actually where you are joined to your mother before you are born”. The accused said that JW asked questions about his body and questions about his physical development. The accused said that he may have made comments about JW’s good upper body development with a view to building JW’s self-esteem.
With respect to the incident where the topic of circumcision occurred and JW exposed his penis, the accused said that JW initiated that conversation[48] and that he and LW had told JW that there was no need to show them.
[48] T273
The accused said that well prior to the incident where JW had exposed his penis, he had had a conversation with SA-W and told her that JW had asked questions about where babies came from (the belly button question) and that he had offered to bring a book to SA-W to assist with teaching JW. The accused’s account of the interaction about this book varies from that of GW and SA-W[49] but in any event the accused agrees that he was told that sex education was the job of GW and SA-W and they did not want him to assist in that regard.
[49] T276
Accused attending sporting events
The accused gave evidence about attending at JW’s football games and the tennis match where LW had seen him. The accused said that JW invited him to his 50th football game; that he was “asked if I would like to come along to celebrate the match” and that occurred in early September 2011.[50] JW did not give any evidence to that effect. Neither did JW’s parents. Even if that issue is unclear, the evidence about the accused’s attendance at a tennis match played by LW and his attendance at the semi-final game for JW’s football is inconsistent with other evidence.
[50] T291
LW gave evidence of the accused coming to a tennis match where he was playing and asking whether JW was at the game. In evidence in chief, the accused said he attended a game where LW was playing. He provided no further information.[51] In cross-examination the accused explained that he had gone to attend a tennis game for one of his grandchildren which was held at a different tennis club some distance away and on his way home he passed LW’s tennis club and said he saw LW playing tennis. He said that he stopped and watched and spoke to him. He denied asking after JW.[52] That is inconsistent with LW’s evidence.
[51] T292
[52] T365-366
SA-W gave evidence that the accused attended at JW’s semi-final football game in about September 2011. The accused said that he was asked by JW to attend the game and he seemed to suggest that SA-W had somehow confirmed that invitation.[53] That is inconsistent with SA-W’s evidence which was to the effect that it was the accused who asked if he could attend the football game.[54] No suggestion was ever made to JW that it was he who invited the accused to attend his football game. On the prosecution case, the point of this evidence is that the accused demonstrated a particular or unusual interest in JW, consistent with a sexual interest in him. Even on the accused’s own account, he went to considerable trouble to attend a football game of an 11 year old on a Friday evening with whom he had a professional relationship, albeit a friendly one.
[53] T368-372
[54] T166
Alleged motive to fabricate the allegations
It was suggested that JW had a motive to fabricate the allegations of sexual touching. I note that it is not necessary for the defence to point to any motive for JW to fabricate the allegations. A complainant may lie for a reason that is not apparent. The onus is on the prosecution to prove beyond reasonable date that JW’s allegations are credible and reliable. Having said that, the accused gave evidence of his last tutoring session which he says explains JW’s false allegation. In my view, the accused’s evidence in this regard lacks credibility and I do not accept it.
The accused said that on the last occasion when he tutored at the home, JW was effectively uncontrollable. He did not sit down, he did not attend to his studies at all, he did not participate in any of the maths games, he would move around the room and could not and would not focus on study at all.[55] The accused described putting photos of completely unrelated subject matter on the laptop in an exasperated attempt to engage with JW. The accused said that he lost his patience with JW such that he told JW that he intended to report to his father (who he understood to be the stricter disciplinarian) that JW’s behaviour was so bad that he would refuse to tutor him any more.[56] The accused went on to say that after that tutoring session, his view had modified and he did not speak to JW’s father. He said by the time of the next scheduled tutoring (the following Wednesday) he had decided to proceed as usual. It is suggested that the accused’s threat to report JW to his father and refusal to tutor in the future was a reason why JW made a false accusation of sexual assaults by the accused.
[55] T293-297
[56] T296, 297
The accused asserted that JW’s behaviour in the last tutoring session was so naughty, so uncontrollable and wilfully disobedient that the accused not only determined to cease tutoring JW but that he threatened JW with reporting the matter to JW’s father. As the evidence established, and the accused conceded during cross-examination, it was JW’s mother who generally dealt with the accused in relation to tutoring matters. The accused agreed that at the end of the tutoring on that Wednesday evening, he was paid by SA-W and that he spoke to her after the tutoring session. He agreed that he did not raise any issue at all with her with respect to JW’s behaviour.[57] There was no cross-examination at all directed to SA-W as to this matter and the accused conceded that no mention was made to her of any problem in that regard.
[57] T352-358
Moreover, notwithstanding his claimed statements to JW that he would speak to his father “the minute I can”,[58] he did not, in fact, raise the matter with GW. The accused said that he let the matter lie for some days and then he decided to not proceed with the threat he said he had made to JW. He was questioned about this:[59]
[58] T296
[59] T298, 299
XN:
"Q“Can you tell us why you didn’t?
ABy the time, fitting in things with my life and maybe after the weekend I decided that I would give [JW] one more chance and not – because I had not had the instant impact of being able to walk out, so I decided to say nothing and to attend the following week, see what happened.
Her Honour:
QSo what do you mean; you said “Because I haven’t been able to have the instant impact when I walked out”. I don’t understand what you are just saying.
ACertainly [JW] realised that I was angry inside and probably my expression, I’m sure that he did see that I was angry outside and I meant what I said and that would have been the best time to be very assertive, I suppose, to his father and very definite and that’s how I felt at that point. By about three days later, because I had other tutoring and so on –
QSorry
ABecause of other tutoring and so on, I – about three days later went, I could have made contact. I was not as angry and decided to leave it and see how [JW] reacted the following Wednesday.
XN:
QIn effect, you cooled down.
AYeah.
The accused was cross-examined about that last tutoring session. The accused admitted that he spoke to SA-W after the tutoring session when she paid him and gave him a receipt. He was asked whether he spoke to her about JW’s alleged behaviour during the class. He was asked why he didn’t raise it with SA-W. The accused repeated that he had told JW that he was going to tell his father and he said that he was quite clear that he was not going to tell anybody before the father. The accused agreed that he regularly communicated with SA-W about the tutoring and on other occasions had brought issues of JW’s behaviour to the attention of SA-W. The accused was asked why he was to speak to the father. He said he chose to do so because the father was much stricter; he said he wanted his complaint to be taken very seriously as he was going to cease tutoring. He said he deliberately chose not to speak with SA-W. The accused agreed that when he left the tutoring session he had wanted to stop tutoring altogether, he was angry and yet he didn’t speak to JW’s mother about this issue at all.
The prosecution position is that this account of events and the alleged claimed threat by the accused to complain to JW’s father is a fabrication to provide some sort of motive for JW to make a false allegation of sexual touching.
I have considered JW’s evidence in this regard wherein he acknowledged that he may have been naughty on this or other occasions together with the accused’s evidence about this topic. I have also had regard to the evidence of SA-W and GW. I do not believe the accused’s account of the last tutoring session with JW and particularly I do not believe that he told JW that he would tell his father about his behaviour and cease tutoring. I think that account is a fabrication. I have formed that view having regard to all of the evidence, the evidence of the accused, his answers in cross-examination, the common sense of the situation and the demeanour of the accused. Even though I find that the accused is untruthful about this aspect of the matter, that does not necessarily mean that he is guilty of the offending behaviour alleged. An accused person may lie out of fear or reason other than because they are guilty of the offence charged. Nonetheless, this is an example of the evidence given by the accused which reflects poorly on his credibility.
Observations about the accused’s evidence
The accused was an unsatisfactory witness. He was loquacious and long-winded in style. He had a tendency to ramble on and become non-responsive in his answers. The transcript does not adequately show the manner in which he gave evidence. Nonetheless, his manner does not mean that he was untruthful. I agree with his counsel that this is a personal manner and style and is not necessarily indicative of untruthfulness.
However, I find that the accused was untruthful in his evidence in a number of material ways. I have already referred to the evidence as to the suggested motive for JW to fabricate the allegations. I also think that the accused’s evidence as to the reasons for his attendance at JW’s football games and at the tennis club was untruthful. I prefer and accept the evidence of LW and SA-W about those matters and do not accept the accused’s evidence about the reasons for his attendances. I think that the accused’s account of the discussion about circumcision, and relating to the boys’ sexual development and sex education were untruthful. The effect of the accused’s evidence was that he acted with professionalism and propriety about these issues and that he was merely responsive to the boys raising such issues with him. Having regard to all of the evidence in that regard, I think that the evidence from JW and LW that it was the accused who instigated these discussions rather than them is the true position. Simply put, I did not believe the accused about these matters.
Having regard to these issues and the accused’s evidence in totality, I do not think that the accused was either credible or reliable. In respect of all material matters in dispute, I do not believe him. I remind myself that it does not follow that because I find that the accused is untruthful, including untruthful in his denials of the offending, that he is guilty of the offence. In order for me to find the offence proved I must be satisfied beyond reasonable doubt of the credibility and reliability of JW’s evidence.
Conclusion
The accused’s evidence and that of JW as to the sexual allegations are completely opposite. Their evidence cannot stand together. I have considered all of the evidence at the trial together with the arguments made to me by both the prosecution and the defence bearing upon that evidence and the evaluation of the evidence. If I found that the accused’s account is reasonably possible, then he would not be guilty of the offence. If I had a doubt about JW’s truthfulness or reliability then the accused would not be guilty of the offence. If I was unable to decide where the truth lies or who is telling the truth then the prosecution would not have discharged its burden of proving the case beyond reasonable doubt and I would find the accused not guilty. Preference for one version of events over another would not be sufficient.
The prosecution case principally relies upon the evidence of JW. There is no direct supporting evidence; no eye witness observation of sexual touching, no admission and no other direct evidence supporting JW’s allegations. I have had particular regard to the alleged lack of opportunity because of the state of the door to the study. I accept that SA-W’s evidence in that regard is likely to be true. I note that there is some other material which the prosecution relies upon, particularly the evidence of the accused’s unusual interest in JW, his mother’s evidence of her observation of JW wearing additional layers of clothing on his bottom half and the evidence that the accused raised matters relating to the boys’ sexual development with them. Nonetheless, I have scrutinised the evidence of JW with great care because, without his evidence, there is no prosecution case. I have carefully considered all of the arguments advanced by defence counsel.
There were some things that JW could not recall. They were matters upon which difficulty in recollection by a 12 year old would be expected. With respect to the inconsistencies quite properly highlighted by defence counsel I note JW’s evidence about that topic with additional and careful interest.
I understand the necessity of proof beyond reasonable doubt of JW’s reliability and credibility as to the alleged sexual touching. I have particular regard to JW’s age and that there may be unknown motives for him to fabricate his evidence.
I found JW’s evidence on the important issues to be compelling. On the central matters I believe that JW is telling the truth. I found nothing that JW said about those matters to be inherently implausible or fanciful. I am satisfied beyond reasonable doubt that JW’s evidence as to the sexual touchings by the accused was honest, credible and reliable.
In considering JW’s evidence I have regard to not only what was said and the other evidence given at the trial, but also his manner and demeanour as he gave evidence and was cross-examined. JW gave evidence over a fairly lengthy period. The transcript doesn’t accurately reflect that time because some of the cross-examination was quite slow ie there were gaps between questions. I don’t say that as any criticism of counsel but rather that the task of a 12 year old facing cross-examination in these circumstances was not easy. It is difficult to describe aspects of demeanour or particular observations that lend support to my view that JW was an honest and reliable witness. JW’s presentation was matter of fact. He did not present as having any particular ill will against the accused other than he did not appear to like the personal and sexual topics of discussion with the accused. He seemed to dislike and was confused by the sexual touching.
I am satisfied beyond reasonable doubt that JW was a credible and reliable witness as to these allegations. I find the charge proved.
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