R v Kostaras (No 2)

[2003] SASC 323

R v KOSTARAS (NO. 2)
[2003] SASC 323

Court of Criminal Appeal: Debelle, Nyland and Gray JJ

1. DEBELLE J.        Appeal against conviction.

2. On 1 April 2003 the appellant was convicted of four counts of unlawful sexual intercourse with a boy, aged 15 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935. The appellant appeals against the conviction.

   The Prosecution Case

3. The offences were alleged to have been committed at different places in the metropolitan area of Adelaide between 1 January 1987 and 31 December 1987.  The complainant did not report the offences to the police until 4 April 2000, a delay of some 13 years.  The complainant was aged 15 for most of the alleged offending.  He turned 16 on 29 October 1987.  At the time of the alleged offending the appellant was aged 26 years.

4. The complainant was a student at a suburban high school and the appellant was the complainant’s art teacher at that school.  In 1987 the complainant was in year 11.  The appellant also had responsibility as a home group teacher.  He was the teacher to whom the complainant had to report at the beginning of each day.

5. A friendship developed between the complainant and the appellant.  The prosecution alleged that the appellant allowed the complainant to drive his motor car notwithstanding that he did not hold a driving licence.  It was alleged that the appellant supplied the complainant with alcoholic drinks, that he would take the complainant to his house at West Lakes where they would drink alcohol, that the appellant introduced the complainant to the appellant’s mother at his mother’s home, and that the complainant would ride a bike while the appellant was running.

6. The offending was alleged to have occurred at the appellant’s house and at business premises in Kent Town occupied by a business in which the appellant had an interest as well as at other locations.  The first and fourth counts alleged sexual misconduct at the appellant’s house.  The second count alleged sexual misconduct at the business premises at Kent Town, and the third count alleged sexual misconduct at a house in Rosewater.  The sexual misconduct on each occasion was the act of fellatio.  There were also allegations of masturbation. 

7. In addition to the sexual misconduct alleged in the four counts, the prosecution led evidence of allegations concerning uncharged acts.  These were said to prove that the appellant had developed an influence and hold over the complainant.  The prosecution alleged that the appellant was sexually attracted to the complainant.

8. In 1987 the complainant was employed on a casual basis in a hotel in the City.  He worked most Friday and Saturday nights.  The complainant asserted that he had arranged for the appellant to pick him up after work.  He alleged that the appellant picked him up on about a dozen occasions and he said that he would sexually abuse him on the way home.  The complainant also alleged that the appellant would fondle his penis through his clothing…