R v M, GA - [2017] SADC 40

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, GA
Criminal Trial by Judge Alone
[2017] SADC 40
Reasons for the Verdicts of His Honour Judge Tilmouth
18 April 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Charges of unlawful sexual intercourse with a child under the age of 17, of assault and of supplying a controlled drug to a child, found not proven beyond reasonable doubt. Verdicts of not guilty entered accordingly.
Controlled Substances Act 1984 (SA) s 33F(a); Criminal Law Consolidation Act 1935 (SA) s 5, s 20(3), s 49(3), s 49(7); Evidence Act 1929 (SA) s 13(7), s 25A, s 34M(4), s 34R(2), s 71A(4); Statutes Amendment Repeal (Simplify) Act 2017 (SA) s 53; R v Beserick (1993) 30 NSWLR 510; R v Nieterink (1999) 76 SASR 56; R v Vonarx [1999] 3 VR 618; R v Grech [1997] 2 VR 609; Roach v The Queen (2011) 242 CLR 610; Tully v The Queen (2006) 230 CLR 234; HML v The Queen (2008) 235 CLR 334; R v Schlaefer (1984) 37 SASR 207; Woolmington v DPP [1935] AC 462; R v Reeves (1992) 29 NSWLR 109; Pryor v The Queen (1969) 43 ALJR 388; King v The Queen (2003) 215 CLR 150; R v WG (2010) 199 A Crim R 218; Murphy v The Queen (1989) 167 CLR 94; Azzopardi v The Queen (2001) 205 CLR 50; R v J, SM (2013) 117 SASR 535; R v Phillips [2015] SASCFC 67; R v Usher (2014) 119 SASR 22, referred to.
R v Murray (1987) 11 NSWLR 12, applied.

R v M, GA
[2017] SADC 40
Background

The accused is before the court charged with five offences of a sexual or related nature, to which he entered pleas of not guilty. He is 55 years of age and is a cousin of the complainant. The complainant was 15 years of age at relevant times and aged nearly seventeen when giving evidence.[1] Both lived in or about the town of Millicent in the South East. A valid election for trial by judge alone was made prior to the commencement of the trial.
[1] The participants in the trial are anonymised so as to protect the identity of the complainant from publication: s 71A(4) Evidence Act 1929 (SA).
The charges in brief
The allegations begin with a camping trip in April 2015, during which the accused performed fellatio for the first time on the complainant, who was heavily intoxicated at the time. This is the core allegation of the particularised offence of unlawful sexual intercourse with a child under the age of 17 years charged on count 1, contrary to s49(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). A couple of weeks later the accused is alleged to have given the complainant crystal methamphetamine or ‘ice’ for the first time, and then again performed fellatio on him as ‘payment’ for the ice.[2] These allegations found the particularised charge of unlawful sexual intercourse with a person under the age of 17 years on count 2, and of supplying a controlled drug to a child on count 3, contrary to s 33F(a) of the Controlled Substances Act 1984 (SA).
[2] T25.15.
On a later occasion the accused and the complainant were drinking alcohol, when the accused again allegedly performed fellatio on the complainant. This act is charged on count 4 contrary to s 49(3) of the CLCA.
The ‘relationship’ between them came to an end at some time between New Year and late January 2015, following an incident when the accused drove the complainant home. During the course of this trip he is alleged to have shoved the complainant’s head against a car door. This allegation forms the basis of count 5, a charge of assault contrary to s 20(3) of the CLCA.
The charges on counts 1, 2 and 4 of unlawful sexual intercourse with a person under the age of 17, require proof beyond reasonable doubt that sexual intercourse took place and that the complainant was under the age of 17 years at the time sexual intercourse occurred. The latter is not in dispute. Sexual intercourse includes the act of fellatio: s 5 CLCA. Consent affords no defence: s 49(7) CLCA.
The charge of supplying a controlled drug to a child on count 3, requires proof that a controlled drug was supplied to the complainant, age not being an issue. As there is no formal proof other than the oral testimony of the complainant, this count must inevitably fail as chemical analysis is necessary to prove the precise nature of the drug involved.
Evidence of uncharged acts
The charged offences occur against a background of wider allegations, to the effect that the accused regularly supplied drugs to the complainant, specifically ice. The accused is alleged to have performed fellatio upon the complainant on some 20 to 30 occasions ‘once a week or so’ over the period between April and Christmas 2015.[3] On all but two of these occasions ice was allegedly supplied by the accused.[4] On the evidence of the complainant this situation developed in this way:[5]
[3]    T23.12-.18.
[4]    T23.1-.8.
[5]    T23.9-25.23.
QOn those 20 to 30 occasions, was there any general discussion about what would happen.
AWhat do you mean by 'what would happen?'
QHow would it be that you would come to his house on those 20 to 30 occasions, how would it come about.
AIt would come about by someone asking me or getting a message from [the accused] asking 'Why haven't you seen him in like such a long period of time?', and then like I would feel pressured and go around there, so yeah.
…
QYes. You have told us about how he would give you a head job and some ice.
AYes.
QWas that what would usually happen on those 20 to 30 occasions.
AYeah.
QHow would that happen generally, what would trigger it when you would go around to his house, how would it come about.
AWell it would be like me asking him like if he's got any ice or he would ask me if I wanted to get on it that week, that weekend or whatever.
QAnd why would you be asking him if he had any ice.
ACoz by that stage it didn't become a problem and, yeah.
QAnd did you know what would result when you asked him for ice.
AYeah, I did start to become aware of what the stipulation would be but because I was starting to become addicted like my body wouldn't really give to it.
QSo you said 'the stipulation'; would that be that he would give you ice and, in return, you'd let him give you a head job.
AYes.
QWas there a tally kept of that, of ice, that you got off him.
AYeah, when it started - when I started to get ticked off in which was - well, I'd get some and the payment wouldn't happen that night. He would start keeping a tally in - there was once it got up to, well, eight I got off him and then one random day like he decided to drop it back to two and I didn't really know why he had dropped it back to two.
QAnd you didn't let him give you a head job.
AYeah, the occasions were when I would get the tick off him and like that's when I wouldn't let him.
He added that pattern was ‘basically the only routine that would happen’.[6]
[6]    T25.33.
The complainant gave evidence that ‘there was other occasions but I am not too fond of what really happened them nights, because it was like back in 2015’,[7] that there would have been ‘around 20-30 times’ that the accused gave him a ‘head job’, and this occurred once per week at the accused’s house.[8] He went on to explain that he was not too sure if there were any other times apart from Lake George where ‘it happened outside the house’.[9] He was allegedly given ice by the accused ‘on most of the occasions and it was only really the occasions we didn’t drink on’.[10] He deposed to the fact that he would visit the accused following messages received from him, or that people told him ‘Why haven’t you seen him in like such a long period of time’, and that he felt pressured to go around to the accused’s home.[11] He conceded developing a problem with ice and that he was starting to become addicted ‘like my body wouldn’t really give to it’.[12]
[7]    T22.9.
[8]    T22.12-.18.
[9]    T22.20-.23.
[10] T22.36-23.3.
[11] T23.14-.17.
[12] T25.1-.7.
It is not open to reason that because the accused may have done something wrong with the complainant on other occasions, that he must have done so on the charged occasions: R v Beserick.[13] Furthermore, it is necessary to be first satisfied that such uncharged conduct occurred, and even then it is admitted only for the limited purpose of determining the nature of the relationship between them, and to establish the contextual setting in which the charged offences are alleged to have occurred: R v Nieterink,[14] R v Vonarx,[15] and R v Grech.[16] Expressed in another way, this evidence is admitted to allow the complainant ‘to tell his story’: Roach v The Queen.[17]
[13] (1993) 30 NSWLR 510, 516.
[14] (1999) 76 SASR 56, [43]-[44].
[15] [1999] 3 VR 618, [22]-[23].
[16] [1997] 2 VR 609, 614.
[17] (2011) 242 CLR 610, [47].
In this particular instance it is additionally admissible for the limited purpose of showing a pattern of behaviour under which the accused achieved the submission of the complainant to sexual intercourse of the kind alleged: R v Nieterink,[18] Tully v The Queen.[19]
[18] (1999) 76 SASR 56, [43]–[44].
[19] (2006) 230 CLR 234, [147].
It is not open to reason from this evidence that the accused is the sort of person who might commit the crimes charged. He cannot be convicted unless the evidence establishes beyond reasonable doubt that the particular conduct specifically charged has in fact occurred: R v Nieterink,[20] HML v The Queen,[21] s 34R(2) Evidence Act 1929 (SA).
[20] (1999) 76 SASR 56, [86].
[21] (2008) 235 CLR 334, [470]-[471].
The complainant spoke of a disruptive upbringing during his school years, of moving at various times between his mother and father in Millicent, as well as his sister and a supportive organisation in Mount Gambier. He admitted to having problems with cannabis consumption, which he said he used a couple of times a week.[22] He described the accused as a family relation whom he knew through his mother.[23] He considered the first time he got to know the accused was towards the end of 2014 when the Millicent Show was held, which he said was in about October or November of that year.[24] By 2015, visiting the accused ‘became a constant thing’ once a week, when they began using cannabis together at the accused’s house on ‘uncountable amount of times’.[25]
[22] T11.5.
[23] T11.17-.18.
[24] T11.29-.37.
[25] T11.38-12.34.
The complainant’s evidence was initially given in closed court with a support person present in the body of the court, and later via audio-visual link.[26] Nonetheless the taking of these measures does not affect the weight to be given to his evidence, and no adverse inferences are to be drawn against the accused because they were so taken: s 13(7) Evidence Act.
[26] T19.11-.14.
Fundamental Legal Principles
Before analysing the evidence, it is as well as to establish the fundamental principles applicable. The constituent elements of each charge require proof beyond reasonable doubt, separately considered on the evidence relevant to that charge: R v Schlaefer.[27] The accused comes before the court with the presumption of innocence in his favour, so that he is entitled to the benefit of any reasonable doubt: Woolmington v DPP.[28] He is not required to prove his innocence: R v Reeves,[29] Pryor v The Queen.[30] Accordingly, if the evidence raises a reasonable doubt about guilt, the accused is entitled to an acquittal: King v The Queen.[31] It is not enough that an offence might have been committed by him, or even that it is more likely than not that he committed an offence: R v WG.[32]
[27] (1984) 37 SASR 207, 210.
[28] [1935] AC 462, 482.
[29] (1992) 29 NSWLR 109, 117.
[30] (1969) 43 ALJR 388, 388.
[31] (2003) 215 CLR 150, [18].
[32] (2010) 199 A Crim R 218, [49].
The accused is entitled to an impartial and detached consideration of the charges without allowing matters of sympathy, prejudice, sentiment or emotion to play any part in the fact-finding process: Murphy v The Queen.[33] In this respect there was evidence that the complainant, his mother and the accused were regular recreational users of cannabis. This evidence is of no relevance and is ignored in reaching the conclusions to follow, except and insofar as it is relevant to count 1, when cannabis was admittedly consumed by the complainant.
[33] (1989) 167 CLR 94, 100.
Evidence of complainant
Evidence was called by Mr Phillips for the prosecution, from a youth worker responsible for counselling in a house for young people in Mount Gambier. She was familiar with the complainant, who often stayed in the facility. In Mount Gambier on 5 January 2016, she had occasion to speak with him because of his ‘agitated and disruptive manner’ when he was seen to be ‘not his regular self’.[34] She noted that he received a telephone call from the accused which he would not accept. [35] This dovetails with the evidence of the complainant himself that he would decline to take calls from the accused.[36]
[34] T81.1-.21.
[35] T82.7-.21.
[36] T28.19 -.28
It is necessary to divert the analysis for a moment to elaborate on this evidence about those phone calls from the accused. The complainant told the police in his first interview with police in January 2016, ‘I have since missed a lot of calls and texts from [the accused]’. He told the police he did not have his phone on him at the time, having offered to ‘bring it in for police to see the text messages.[37] He maintained that ‘there was a long period of time when the police hadn’t even contacted me’ and by the time they did, he had disposed of it.[38]. Detective Martin told the court that this issue was originally handled by the officer who took the statement, and that he took over conduct of the investigation sometime later. He then asked the complainant to produce his mobile phone on at least three or four occasions.[39]
[37] T30.8-13, T39.8-19.
[38] T30.14-31.27.
[39] T97.37-98-.13.
This situation is most unsatisfactory. It may be accepted that the contents of the complainant’s mobile phone might not have been probative, but it is equally likely they may have either implicated or exonerated the accused. No explanation was given for the failure to subpoena the complainant’s or the accused’s telephone records either.
Returning to the evidence of ‘complaint’, by reference to notes the youth worker made some time later,[40] she spoke of sitting down with the complainant in a dining room and ‘talking through what had happened’.[41] According to her, he began talking about ‘the abuse’, although she described him as holding back a fair bit.[42] Her evidence in chief continued:[43]
[40] T28.19 -.32
[41] T85.5.
[42] T85.13.
[43] T85.21-86.25
QDid he tell you anything about the abuse, as he called it.
AEventually he spoke about the abuse as occurring on his birthday when he turned 15. He said that he had been drinking so he was under the influence and he said that he was in a situation where he was offered ice and he was forced to give oral sex and he said that that was with [the accused].
QI just need to be clear, did he say to you that that was on his 15th birthday.
AYes, I understand that as we spoke and unpacked his feelings and the situation in particular, the sensitive nature of that, it was difficult to talk to him, what did you just ask me again, sorry?
QDid he say that that happened on his 15th birthday.
AYes, I asked him to be specific, like he seemed to know because it was his 15th birthday, and was able to clearly talk about it being his birthday.
QWhat did he say about the oral sex on his 15th birthday.
AHe said that it wasn't wanted or that he never did want that and he said that he had had some drinks but it was nothing that he wanted.
QDid he say who did what in relation to oral sex.
AHe said that -
QUse your notes if that might help you.
AI will just see if I have written specific - I believe that he said that he was forced to give [the accused] oral sex. With the way he worded it I didn't ask anymore questions about details, about how or what was done.
QDid he say that he gave oral sex, can you remember, can you help us that.
AYeah, I believe that was what he said.
QApart from his 15th birthday, did he disclose anything else that had happened between him and [the accused].
AHe said that it happened on two other occasions and again he said it was unwanted.
QDid he say anything else about the other occasions.
ACan I just check my notes?
QYes.
AHe said that each time that it happened he said that [the accused] was more and more pushy about it and he described it as the deal referring to the ice for oral sex.
This evidence is admissible insofar as it serves to inform how the allegations first came to light and secondly, as evidence of consistency of conduct by the complainant. It is not evidence of the underlying truth of what was said: s 34M(4)(b) Evidence Act 1929 (SA). It is necessary to bear in mind that there may be varied reasons why the complainant did not complain at any earlier time, or to any other person. With those considerations in mind, it is otherwise entirely a matter for the court as the tribunal of fact to determine the significance (if any) of the evidence in the circumstances of this particular case: s 34M(4).
The defence case
The accused elected not to give evidence. As this is his legal right, no adverse inference is to be drawn against him by reason of the exercise of that right. His failure to give evidence does not constitute any admission, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proven its case beyond reasonable doubt: Azzopardi v The Queen.[44]
[44] (2001) 205 CLR 50 at [51].
Defence counsel Mr Jolly did however call the complainant’s elder sister to the stand. She spoke solely of his reputation for untruthfulness. This evidence is admissible under the ancient ‘oath-belief rule’. This rule permits a witness to be asked whether they have knowledge of a witness’ general reputation for telling the truth and whether from such knowledge they would believe the impugned witness’ sworn testimony: R v J, SM[45] and R v Phillips.[46] It might be noticed that s 25A of the Evidence Act introduced by s 53 of the Statutes Amendment Repeal (Simplify) Act 2017, abolished the oath-belief rule. This came into effect on 15 March 2017, that is on the very same day this evidence was adduced.[47] In light of the conclusion about to be reached as to the worth of this evidence, it is unnecessary to decide whether the amendment applies to this trial.
[45] (2013) 117 SASR 535 at [70]-[73].
[46] [2015] SASCFC 67 at [73]–[76].
[47] Government Gazette 15 March 2017 p 852.
Despite admission, no store can be placed on this evidence, simply because of the witness’ continuing friendship with the accused, and because her general distrust of her brother has its origins in personal and family discord rather than in a wider perception or reputational unreliability.[48]
[48] T104-105.5, 105.21-106.31
The defence also called the complainant’s mother to the witness stand. She told the court of the camping expedition at Lake George on the occasion of his 15th birthday, but insisted that it was over two nights commencing on Friday, 10 April 2015.[49] She spoke to the complainant the following Sunday morning when he returned home to Millicent and considered him to be ‘hung over’, but the events of the night before were not spoken of at that time.[50]
[49] T109.2-.19, 112.3-.13, 118.7-.11
[50] T112.15-.24

She was asked about the events of New Year’s Eve 2015. To summarise, her evidence was that the complainant had declined her request to attend a pool party that night, preferring instead to go to a friend’s house.[51] She and the accused collected the complainant later and took him home after finding him passed out in the driveway of that home in the early hours of the following morning.[52]
Analysis
[51] T112.29-113.15.
[52] T116.5-117.14
General observations
To outward appearances the evidence of the complainant was straight forward and coherent enough. He appeared nervous at times but that is perfectly understandable. There was nothing inherently improbable in what he alleges. There were, however, certain aspects of his evidence that require close scrutiny when it comes to evaluating his account of events. The evidence of his mother can be accepted so far as it goes, as it was not overly inconsistent with that of the complainant, except perhaps in a few areas identified later as they arise.
There is no corroboration or independent evidence supporting the evidence of the complainant in any respect, so his evidence ‘must be scrutinised with great care’ before a conclusion is arrived at and a verdict or verdicts of guilty can be entered: R v Murray.[53] With these considerations in mind it is now appropriate to turn to the charges.
[53] (1987) 11 NSWLR 12.
Count 1
It is alleged that the accused supplied the complainant with cannabis on the camping trip at Lake George, which is near Beachport in the South East of this State.[54] He described this occurring on his birthday, a Saturday in mid-April 2015, when it was arranged to camp overnight at Lake George. There is some contention as to whether or not they camped for one or two nights. It is clear enough that on the Saturday evening he consumed a considerable quantity of bourbon, to the point of vomiting both inside and outside a tent. This he said ‘was the first time we drank together’.[55] His evidence about what next occurred was this:[56]
[54] T13.10-.13; T50.25-.27.
[55] T15.5-.6.
[56] T16.15-17.10
AOh, that night. I went and like - I got pretty heavily intoxicated, ended up spewing up a couple of times. [The accused] ended up helping me into the tent. I spewed a couple of times inside the tent. Then [the accused], like, cleaned out the tent and whatever and then he came in next to me and was in and out of consciousness and while I was in and out of consciousness I remember receiving a head job.
Q[The accused] performed oral sex on you.
AYes.
QWhat were you wearing at that time.
AI'm not 100% sure what exactly I was wearing but I had a T-shirt on because I was overheating so I only had a T-shirt on with a pair of pants.
QWith what, sorry.
AWith a pair of pants on as well.
QCan you say how long the head job happened for.
A20 minutes to half an hour, roughly.
QCan you say whether you ejaculated.
AI'm not sure if I ejaculated or not. I may have, I might not have.
QYou told us about the Wild Turkey you drank that night, did you have any drugs that night as well.
AOnly marijuana.
QAfter [the accused] had given you a head job what happened after that.
AWell, basically I went to sleep and woke up the next morning feeling quite hung over.
QWas there any discussion the next day with [the accused] about what had happened that evening.
AWell, we woke up, made breakfast and he said to me what seemed to be a threat 'If you say anything about what happened last night I know people that will come looking for you'.
In relation to this count, the evidence of the complainant is at odds with that of his mother over the number of nights spent camping on this occasion. Perhaps such an incidental aspect would ordinarily be of little consequence, however he was particularly insistent that only one night was spent at Lake George.[57] Her evidence that he was hung over the next morning supports his assertion that he drank to excess and was hungover the next day.[58] The evidence of ‘complaint’ detailed earlier, is broadly consistent with this account, except that no ice was involved on this occasion. More significantly, the nature of the sexual intercourse is reversed and therefore inconsistent with his evidence. Furthermore, the complainant’s recollection was unquestionably given through the prism of an alcoholic and perhaps cannabis haze, as is evident from the passage quoted from his earlier evidence, ‘while I was in and out of consciousness’.
[57] T15.26-.27, T48.25-49.4, T78.3-.8.
[58] T17.4, 113.20.
Of greater moment is the assertion that a threat was made, 'you say anything about what happened last night I know people that will come looking for you'.[59] Under cross-examination he maintained his evidence about this topic:[60]
[59] T17.5-.10.
[60] T54.7-21
QAs I understand it, you have told us in evidence that he said to you 'If you say anything about this, I know people who will come looking for you'. Is that right.
AYes.
QAre they the words that you say he used.
ANot exactly sure on what words he used, but that is roughly along the lines of what he was saying, and that is the threat I picked up.
QSo you think they were words similar to, but you understood he would send people around to you, is that what you took from it.
AYes.
QIf you mentioned anything that had happened that night or the previous night, I should say.
AYes.
Immediately following this exchange, it was put to him that he said nothing about such a threat when he first gave a statement to the police at Millicent during the evening of Friday, 29 January 2016. He did in fact attend the Mount Gambier Police Station the following Monday, where he signed each page of this statement. He at first responded to Mr Jolly that ‘I am not 100% sure, because that was quite a while ago’ whether he told the police about the threat at this time.[61] It was then put to him that he told the police this on this occasion:[62]
QCan I suggest to you that you said to the police this: 'In the morning I started having a few flashbacks about what had occurred. I felt really uncomfortable to talk to [the accused] about it. I can't really explain. But I didn't have a conversation with him about it. I was too embarrassed', is that what you said to the police when you first spoke to them.
AYes, I was too embarrassed to say many words to him like about what had happened the night before.
[61] T.54.24
[62] T54.25-.33.
The complainant continued to maintain there was a threat made to him the following morning, but accepted that it was not in his initial statement, suggesting ‘something has been mixed up there along the lines.[63] The quoted passage from this statement was put to him again, when he accepted the omission to tell the police.[64] He purported to explain this on the basis that ‘I didn't feel comfortable having a conversation with him’.[65] At this point he began to prevaricate somewhat when asked to elaborate:[66]
A… I am trying to figure out how to explain this. Like I couldn't really explain it like at the time.
QI understand what you are saying I think.
AI am not just sure how to explain like this at the moment.
[63] T55.3-.4
[64] T55.23-.34
[65] T55.38-56.1
[66] T56.4-.9
It was next suggested that the first time he said anything about a threat was in a second statement given to police on 12 December 2016, however he could not explain why he did not tell them about it earlier.[67] He later acknowledged stating during the course of the first interview, '(T)here is some other information and details that I just can't bring myself to talk about at the moment’.[68]
[67] T56.22-.24
[68] T63.15-.17
It is true that the youth worker who received the complaint said the complainant spoke of being scared the accused ‘might come after him if he talked about this’.[69] However, she made no specific note of this, her response under cross-examination being ‘… I don’t believe it’s written in my notes’. Further, her rhetorical exclamations, ‘Wouldn’t you be threatened if you were pushed into something’ and ‘Well, you’d be threatened if you were pushed into something’,[70] have the distinct aura of reconstruction about them. Still further, these responses proceed on a false premise, ‘he was forced to give oral sex’. When one adds this observation to her concession that the complainant said ‘nothing really further’ about a threat, no support for the complainant is derived from this evidence on this topic.[71]
[69] T89.35-.36
[70] T90.8 -91.2.
[71] T91.7.
There is another feature of the complainant’s evidence requiring evaluation as it relates to count 1, and in the event more widely. As it happens, on 12 December 2016 the complainant was sentenced by the Youth Court and placed on a bond in relation to trespass, theft and damage offences committed at the home of the accused on 5 June 2016, some six months after the last of the events in question. The complainant gave a second statement to the police shortly afterwards, on 20 December 2016. Defence counsel argued it was no coincidence that in the second statement the complainant added significant incriminating matters not raised by him when first spoken to by the police. It is however, likely the timing of the second statement was coincidental and arranged at the behest of the DPP.[72] Nevertheless, the fact remains that these circumstances evince a significant dislike of the accused, and therefore a motive to incriminate him. As noted earlier, it was in this second statement that the supposed threat at Lake George first emerged in speaking with the police.
[72] T97.32.
These second responses under cross-examination fell in the context of an extraordinary earlier assertion that when giving the first statement to police, the complainant was ‘under the influence of marijuana and … quite heavily stoned’.[73] Admittedly, the first interview commenced unusually late at 10.39 pm on a Friday night, and must have taken well over an hour to complete, if not more. The complainant may well have been tired and not as forthcoming as he might well have been in more conducive circumstances. Although the officer who took the statement was not called, it is difficult to accept that any experienced policeman would continue to interview a person making allegations of this kind if they were so obviously affected by drink or drugs.
[73] T34.2-.4
Matters were only compounded by the complainant’s assertion that when he attended to sign this statement on 31 January, he simply ‘just signed it without looking at it again … I only skimmed through it’, which seems equally unlikely.[74] The conclusion can only be that these responses under the pressure of cross-examination, were the product of vain attempts to explain material omissions in reconciling his evidence with what he did or did not say to the police when giving his first statement. Other examples of this convenient but unconvincing excuse are examined later.
[74] T36.19-.21, 37.11-38.21.
Given the extreme state of intoxication of the complainant on the night of the Lake George events, his highly unconvincing and self-serving attempts to explain omissions in his first statement to police, together with a very real motive to implicate the accused, as well as more inconsistency than consistency with the complaint evidence, it is simply impossible to place any faith in the reliability of his account of the events of that night. A verdict of not guilty is therefore inevitable on count 1.
Counts 2 and 3
These two counts are considered together, as the evidence admissible in proof of each is precisely the same. The complainant described next seeing the accused ‘a couple of weeks after’ the camping trip[75]. In respect of counts 2 and 3 his evidence was this:[76]
[75] T17.24.
[76] T17.24-18.8.
QWhat happened the next time you saw him a couple of weeks after.
AMe and mum had a couple of cones while we were there and then me and mum cruised off after that.
QSo you've told us that you saw [the accused] until the end of 2015, were there any more occasions when he performed oral sex on you.
AYes.
QCan you tell us when the next time was after the camp at Lake George.
ANext time would have been a couple of weeks afterwards when it was the first time we got on the ice.
QCan you tell is about what happened on that occasion.
AWell, I got given a couple of points that night and then - and we'd sort of made a deal for, like, 'I'll give you this and you give me -', he'll me a head job in return, whatever.
QWhat would he give you in return for a head job.
AHe'd give me the head job and then I'd get a couple of points of ice from him.
QSo about that occasion, the first time he gave you ice, where was that at.
AAt the address of where he was living at the moment.
With respect to the assertion ‘we’d sorta made a deal’, Mr Phillips returned to this issue shortly afterwards during examination-in-chief:[77]
[77] T20.12-21.2.
QBefore the break you were telling us something about an arrangement. Can you describe that again, what the arrangement was.
AWhat about, like the deal, like?
QYes, you called it 'the deal'.
ALike I would get a certain amount of points from [the accused] and he would like later on during the night he would give me a head job and yep, that is what basically the deal was.
QWhere did the head job happen, that time when he first gave you the ice.
AIn his bedroom.
QCan you describe that for us.
AHe had a purple quilt cover, about a double or queen-sized bed, and two side tables or cupboards on each side of the bed.
QNow on that occasion that he first gave you the ice in return for the deal, as you call it -
AYes.
Q- did you stay the night.
AYeah, I did stay the night.
QWhere did you stay.
AThe first night after that I went back into the room and [the accused] said I was like able to stay and like when I came around I stayed.
QWhat room are you talking about there.
AIt was basically like the guest bedroom sort of thing which was up next to the bathroom, next to his bathroom like sort of thing, if that makes sense.
Here again, it is true that he told the youth worker that ‘each time that it happened he said that [the accused] was more and more pushy about it and he described it as the deal referring to the ice for oral sex’.[78] Nevertheless, what he said to the police in his second statement was something quite different:[79]
On a couple of occasions I brought bags of dope from [the accused]. I was getting a bag or so each week, and it would either be like $20, $50 or a $75 bag.
[78] T86.23-86.25.
[79] T58.17-.20.
When taxed with this version of the arrangement the complainant at first denied buying drugs from the accused. He later acknowledged, ‘Yes, that is what the bags would be worth’ but soon qualified it, ‘Yes, I am not 100% on whether I said that’.[80] Some questions later when taken to this portion of his second statement, he again repeated that ‘they would be like $20/50/75 bags, that is how much would be contained in the bags’, whilst maintaining that he never purchased cannabis from the accused.[81] He again gave the explanation for missing this reference when attending to sign this statement by ‘just flicking through it’.[82]
[80] T58.16-.25.
[81] T59.14-25.
[82] T59.28.
The statement to police about buying cannabis from the accused is materially different to his evidence in respect of the ‘reward’ that allegedly accompanied the supply of amphetamine by the accused to him, in exchange for sexual acts. This is so telling that it is not possible to be confident that his evidence is reliable, quite apart from the extant motive to implicate the accused. There must be a verdict of not guilty on these counts accordingly, as the prosecution has failed to demonstrate that this evidence is reliable enough to sustain a conclusion of guilt beyond reasonable doubt.
Count 4
The material evidence-in-chief with respect to the events alleged on count 4 is as follows:[83]
[83] T21.7-22.4.
QWere there other occasions on which, what you call, the deal happened.
AYes, there was another [night] where we got drunk again and -
QI will stop you there for a moment, you said you got drunk again.
AYes.
QOn that night what were you drinking.
AThat night we were drinking Jack Daniels.
QWhat happened on that night.
AWell we started drinking, I got fairly intoxicated and started spewing again, [the accused] got me a bucket so I could like spew into that and then like I said going to sleep and then like we, like the head job happened again.
QSo you were on his bed.
AYeah.
QWas there any ice smoked on that night.
AI am not 100% sure if we smoked ice that night or not. I don't think we did because we were drinking that night.
QOn that occasion, why did you go around to his house, that Jack Daniels' night.
AWhy did I go around there?
QYes.
ABecause like he had asked if I wanted to go around there for some drinks and I had organised a couple of weeks beforehand and yeah it ended up happening on that night.
QHow long after the occasion that he first gave you ice, did that Jack Daniels' night happen.
AWhat that was again?
QThe night you are just talking about when you had Jack Daniels and he gave you a head job, how long after that, the first time, that he gave you ice, and a head job, happened, how long after that was the Jack Daniels' night.
AWould have been a couple of months afterwards.
There is no consistency with these allegations and the evidence of the ‘complaint’. Indeed the complaint’s evidence is not referable to this incident: R v Usher.[84] Given the significant misgivings identified above as to the reliability of the complainant’s evidence at large, it is not possible to be satisfied beyond reasonable doubt that this charge is proven. Consequently, a verdict of not guilty must be entered.
[84] (2014) 119 SASR 22.
Count 5
Eventually the ‘relationship’ came to an end following an incident at a barbecue at the accused’s home in Millicent. The complainant deposed to the following incident, which forms the core allegation of assault on count 5 of the Information:[85]
AAnd we got there and [the accused] just finished cooking up like all of the food. Like I got a piece of chicken from [the accused] and then I asked if [his friend] could have one and [the accused] was like, out of nowhere, was like 'Why would he get a piece, ignorant prick' and then like after that, [his friend] wanted to leave and I wanted to leave as well because [his friend] was leaving and like I thought it was all unnecessary that [the accused] done that. So [his friend] went, then [the accused] drove – [the accused] said I wasn't allowed to go with [his friend]. So [the accused] drove me home and we got to about Caltex and he, [the accused] - we like got to the point where [the accused] was like 'Am I going to see you again?' and I was like 'I don't know' and he grabbed - well, he pushed his forearm into my face and leant it against - like pushed it into my face and all. And then he dropped me off, dad's place and he said 'I'm sorry' rah rah rah, trying to like so I wouldn't say anything to anyone and then went into dad's like it never happened and then I ended up coming up to … and telling … everything that happened.
[85] T26.26-27.6.

He accepted under cross-examination that what happened began with the accused telling him ‘to get in the car’, as he was returning him to his father.[86] He denied that the accused simply reached over and grabbed his seatbelt, insisting again that ‘he pushed his forearm into my cheek and pushed my face into the door.[87] He admitted the accused confronted him ‘to get your act together'.[88] Of some significance is that under cross-examination it was put that the accused offered him two choices on this occasion, namely that he could apologise for his behaviour that day or he would tell his father about a break-in at the Mount Burr Football Club.[89] The answers given by the complainant and the accompanying body language made it quite clear that he made an implied admission that he was involved in that incident.[90] Both counsel accepted this was the case.[91]
[86] T72.12-.16.
[87] T73.8-.9.
[88] T73.10-.11.
[89] T73.22-.32.
[90] T73.29-.33.
[91] T78.13-87.3-.18.
As the evidence transpired, it became apparent that the complainant was confusing the events of New Year’s Eve, and a barbecue at the accused’s home in the early New Year.[92] This gave rise to an amendment to count 5 made by consent during the course of the trial, to change the date of the offence as falling between 24 December 2015 and 30 January 2016, rather than 24 December to 1 January.[93] The New Year’s Eve incident was in fact the occasion on which the complainant passed out and was driven home by his mother and the accused, which she gave evidence about in the defence case.[94]
[92] T68.26-70.3.
[93] T93.29 -94.9.
[94] T67.11-68.25.
It became clear that the incident in the car was a separate and later occasion following a barbecue at the accused’s house. The accused had earlier collected the complainant from his father and had agreed to return him later. It was on this later occasion that some discord developed between the complainant and the accused over the complainant’s continued drug taking. The accused confronted the complainant that he was ‘still taking drugs’ and told him he knew he wasn’t ‘clean’. The complainant ‘wasn’t impressed’ by this accusation and was unhappy about it.[95] He accepted the accused asked him to leave, but that he wanted to remain with his friend to ‘smoke bongs’,[96] and that the accused directed him to get into a car to be taken home.[97]
[95] T70.20-75.63.
[96] T71.14-72.1.
[97] T72.12-.31.
The complainant further acknowledged reluctantly getting into the car to be taken home as the accused promised the complainant’s father he would.[98] All the same, the complainant became ‘pretty pissed off’ with the accused as a result.[99] The complainant eventually acknowledged that it was on this journey home that an argument erupted about the Mount Burr offence.[100]
[98] T72.12-.31.
[99] T72.33.
[100] T73.10-.37.
Given this course of events, and the substantial doubts as to the reliability of the complainant expressed earlier, there is a reasonable possibility that what took place in the car on the occasion to which count 5 relates, amounted to no more than the reasonable chastisement by a relative of a young man continuing to abuse drugs, for his own good rather than as an intentional and unlawful application of force. His evidence that an argument developed not because of this state of affairs, but because the accused called his friend an ‘ignorant prick’ on this occasion, cannot be accepted given the concessions made by him under cross-examination.[101] The evidence falls far short of proof beyond reasonable doubt of an intentional and unlawful application of force such that a verdict of not guilty is entered on count 5.
[101] T68.18-.20, T70.32.
Conclusion and verdicts
For the several reasons identified earlier, the complainant is shown to be an unreliable historian. His unconvincing attempts to explain contradictions between his evidence and statements to police, and the motive to falsely implicate the accused, in combination result in the conclusion that none of the charges are proven beyond reasonable doubt.
The accused is therefore entitled to acquittals on all five counts. The abiding suspicion that the accused is likely to have committed the sex offences, is no substitute for rigorous proof according to established principle. Verdicts will be entered accordingly.