R v M, GJ
[2016] SADC 18
•25 February 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, GJ
Criminal Trial by Judge Alone
[2016] SADC 18
Judgment of His Honour Judge Boylan
25 February 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of persistent sexual exploitation of a child and one count of aggravated possess child pornography - trial by judge alone - guilty pleas entered on same Information for two further counts, one of aggravated possession and one of possession of child pornography. Complainant resided with accused as child for a period - alleged offending over approximately a four year period between the ages of eight and 12 years.
Elements of relevant offending proved.
Held - guilty on both counts 1 and 2.
R v Joyce [2005] A Crim R 241, considered.
R v M, GJ
[2016] SADC 18
The accused was arraigned before me on the following Information:
M, GJ is charged with the following offences:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
M, GJ, between the 31st day of December 1996 and the lst day of June 2000 at Salisbury and Elizabeth, over a period of not less than three days, committed more than one act of sexual exploitation of J, a person under the age of 17 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a) Stroking J on the buttocks on more than one occasion.
b) Kissing J on the lips on more than one occasion.
c) Stroking J on the penis on more than one occasion.
d) Masturbating J on more than one occasion.
e) Performing fellatio upon J on more than one occasion.
f) Causing J to masturbate him on more than one occasion.
g) Causing J to perform fellatio upon him on more than one occasion.
h) Inserting his finger into J’s anus.
i) Inserting his penis into J’s anus on more than one occasion.
Second Count
Statement of Offence
Aggravated Possessing Child Pornography. (Section 63A(1)(a) of the Criminal Law Consolidation Act, 1953).
Particulars of Offence
M, GJ, on the 10th day of January 2014 at Blakeview, was in possession of child pornography knowing of its pornographic nature.
It is further alleged that M, GJ committed the offence knowing that the victim was, at the time of the offence, under the age of 14 years.
Third Count
Statement of Offence
Possessing Child Pornography. (Section 63A(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
M, GJ, on the 10th day of January 2014 at Blakeview, was in possession of child pornography knowing of its pornographic nature.
Fourth Count
Statement of Offence
Aggravated Possessing Child Pornography. Section 63A(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
M, GJ, on the 10th day of January 2014 at Blakeview, was in possession of child pornography knowing of its pornographic nature.
It is further alleged that M, GJ committed the offence knowing that the victim was, at the time of the offence, under the age of 14 years.
The pleas
The accused pleaded not guilty to counts 1 and 2 and guilty to counts 3 and 4. At his election, I heard the trial of counts 1 and 2 without a jury. I now publish my reasons for the verdicts I am about to deliver.
Overview of the Prosecution Case
By way of overview, I set out some undisputed facts.
‘J’, the complainant, is now known by his father’s surname. He is 28, the youngest of his mother’s three children, all boys and all by different fathers. J and his brothers were brought up by their mother. She was a single parent but had relationships with a number of men during J’s childhood. The boys grew up in deprived circumstances, attended many schools and lived at many different addresses. On at least one occasion, J was placed in foster care.
When J was five, he was living with his mother and brothers at a unit in Loades Street at Salisbury. The accused, a single working man, then in his early thirties, lived in a nearby unit.J began spending time at the accused’s unit, playing video games on the accused’s Nintendo. That became a regular practice. After some time, J began staying overnight.
In September 1997, when J was nine, his mother executed a Statutory Declaration in these terms:
I, (J’s mother’s name), being the mother of J born (date of birth) do hereby acknowledge and consent to M, GJ having legal guardianship of J (name of J in full). I consent for convenience purposes J will be known as J (accused’s surname) from 13 September. (Exhibit P 13)
Thereafter, J lived with the accused at various addresses until he was at least 12. During that time, the accused took him on holiday; on one occasion to Sydney for the celebration of the Millenium Year, when he and J stayed with some adult males. Eventually, J returned to live with his mother, who was then living in Whyalla, but he still stayed with the accused during some school holidays.
J was 18 when he first made any complaint of sexual abuse. He told his mother that the accused had sexually abused him but he gave her no details and his mother asked him no questions. When he was still 18, J married ‘C’. Although they remained together for only a few months, they have never divorced. J told her that the accused had sexually abused him when he was between eight and 12 years old. Some time after speaking to C, J discussed the topic of the alleged sexual abuse with a counsellor. When he was 22 or 23, J lived with a woman named ‘S’ for about a year. He told her that the accused had sexually abused him and he and S discussed the topic on a number of occasions.
J did not go to the police; they came to him. In late 2013, Detective Brevet Sergeant Mark Sutherland visited J and told him that he was investigating sex offences and wanted to speak to J about the accused. After that visit, J made a statement to the police alleging sexual abuse by the accused.
As a result of J’s allegations, Detective Brevet Sergeant Sutherland and other police officers attended at the accused’s address. Sutherland arrested the accused, who declined to answer questions. On the same occasion, the police searched his house. In a suitcase in the accused’s bedroom, police officers found two Polaroid photographs of J naked. One shows him with his back to the camera; the other shows him lying on his stomach with his testicles clearly visible. Those two photographs are the subject of count 2 on the Information. The suitcase in which those items were found also contained babies’ items: nappies and dummies.
Police also seized a USB stick and a computer tower, the contents of which were later analysed. The USB stick contained a collection of images – some animated – of mainly naked prepubescent boys engaging in sexual activity with each other or with adult men. It also contained three images of J. One of them shows him on a fairground ride and is not apparently of a sexual nature. The other two are electronic versions of the two Polaroid photographs found in the suitcase. The computer tower contained images of boys between about nine and 14 years old wearing nappies and posing in sexual ways. Animated images found in the computer tower show young boys involved in bondage and in sexual behaviour with each other and with adult males. The images found in the computer tower and USB stick are the subject of counts 3 and 4.
An agreed fact
At trial, the accused admitted, by way of an agreed fact, that he had a sexual interest in the pornography that is the subject of counts 3 and 4, save for the images of J which are electronic copies of the two Polaroid images.
The prosecution case
The prosecution case is that the accused is sexually attracted to prepubescent boys; that he indulged that attraction by maintaining a sexual relationship with J and by keeping pornographic photographs of him.
The defence case
The accused did not give evidence. He called his mother and tendered evidence from a forensic psychologist. I received that evidence de bene esse. I shall return to it.
The defence case is that, owing to his poor memory, J’s evidence is too unreliable for me to be satisfied beyond reasonable doubt that the prosecution has proved the offence of persistent sexual exploitation. The accused’s case on count 2 is that the photographs of J naked are not pornographic.
Standard directions
I have given myself a number of directions, some of them standard and some particular to this case. I deal now with some of the standard directions and, later in these reasons, with particular directions.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each of the two charges lies wholly upon the prosecution. The accused is not obliged to prove anything.
Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before I could convict the accused of either count, I must be satisfied that the prosecution has proved beyond reasonable doubt each of the elements of that count.
The accused elected not to give evidence, as was his right. I have not drawn any inference adverse to him on account of his exercise of that right. Nor have I speculated on the many reasons why he may have chosen not to give evidence.
The accused declined to answer police questions. That, too, was his right. I have not drawn any inference adverse to him on account of his exercise of that right.
As I have already mentioned, J’s allegations came to the attention of police after they contacted him. I have not drawn any inference adverse to the accused from the fact that police visited J to make enquiries about the accused.
Each of the two counts before me is charged as a separate offence and each must be treated separately upon its merits. Should I be satisfied of the accused’s guilt on one count, it does not necessarily follow that he is guilty of the other count. I must take special care to ensure that the method by which the guilt of the accused on one count may be established is by considering only the evidence admissible in relation to that count.
I have directed myself about the elements of the relevant offences.
Persistent sexual exploitation of a child
To prove the offence of persistent sexual exploitation of a child, the prosecution must prove that:
At the time of the alleged offending the accused was an adult. There is no doubt about that. He was born on 25 September 1961. (see appendix 2 to the declaration of Mark Sutherland dated 15 May 2015, which is part of Exhibit P3).
The accused committed more than one act of sexual exploitation against J. An act of sexual exploitation is a sexual offence, in this case, an offence of indecent assault, procuring an act of gross indecency, unlawful sexual intercourse with a person under 12, or unlawful sexual intercourse with a person above the age of 12 years and under the age of 17 years. (Given J’s ages at relevant times, I have ignored the offence in s 49(5) of the Criminal Law Consolidation Act 1935 (SA)).
The accused committed at least two acts of sexual exploitation. The two or more acts must be amongst the acts particularised in the Information.
The accused committed the two or more acts of sexual exploitation over a period of at least three days. That is, the prosecution must prove that the time between the first and the last acts must be three or more days.
The prosecution must prove that at the time the accused committed the acts of sexual exploitation J was under 17. There is no doubt about that.
Consent is irrelevant.
Procuring an act of gross indecency
To establish a charge of procuring an act of gross indecency the prosecution must prove that –
The accused caused J to masturbate him.
J was under 16 years at the relevant time.
The act of masturbation was indecent having regard to contemporary standards of morality and decency.
The indecency was gross; that is, it must be more than minor or trivial indecency.
Consent, is again, irrelevant.
Unlawful sexual intercourse
To prove an offence of unlawful sexual intercourse with a person under 12, the prosecution must prove that the accused had sexual intercourse with J. Sexual intercourse includes the insertion of the accused’s finger or penis into J’s anus, the accused taking J’s penis into mouth, and the accused inserting his penis into J’s mouth.
The prosecution must also prove that J was under 12 at the relevant time.
Consent is irrelevant.
To prove an offence of unlawful sexual intercourse with a person above the age of 12 years but below the age of 17 years, the prosecution must prove an act of sexual intercourse as described above and that J was between the ages of 12 and 17 years at the relevant time. Again, of course, consent is irrelevant.
Indecent assault
To prove an offence of indecent assault, the prosecution must prove an assault accompanied by, or committed in, circumstances of indecency. Therefore, the prosecution must first prove that the accused assaulted J.
An assault is the intentional and unlawful application of force to another person. Any of the following alleged touchings or handlings of J are sufficient to constitute an assault; stroking J’s buttocks; kissing J on the lips; stroking J’s penis; and masturbating J. The relevant touching must be deliberate. An accidental touching is not sufficient. The touching must be without lawful excuse.
The prosecution must also prove that the assault was accompanied by, or committed, in circumstances of indecency. Whether or not an alleged touching is indecent is for me to determine by reference to pervading community standards of what is considered indecent.
Consent is irrelevant.
Aggravated possession of child pornography
To prove the offence of possession of child pornography the prosecution must prove that the relevant material, here the two Polaroid images of J, constituted child pornography; that the accused knew of the pornographic nature of those two photographs; and that the accused was in possession of them. To prove an aggravated offence, the prosecution must prove that, at the time the accused possessed the photographs he knew that J was under 14 at the time the photographs were taken.
WARNING ABOUT FORENSIC DISADVANTAGE TO THE ACCUSED
The prosecution case depends upon the evidence of J. He delayed for some years before making a full complaint and more than another year has now passed between the time of his complaint to police and trial. Accordingly, I have directed myself as follows.
The prosecution’s case stands very much upon J’s evidence alone.
(i)Owing to the lapse of time, the accused has not been able to test J’s account in detail.
(ii)Human memory is frail and is liable to distortion as time passes.
(iii)There is a danger of distortion of memory of events which occurred in the past, especially where the recollection is from childhood and early teenage years.
(iv)His failure to make a prompt complaint and his delay in complaining may in themselves cast doubt upon J’s evidence.
(v)The delay has forensically disadvantaged the accused in a number of ways. He cannot now be expected to remember relevant times and occasions as he would have been able to do had there been a prompt complaint. Had there been a prompt complaint, he may have been in the position to remember where he was and with whom and so may have been able to produce evidence to refute J’s allegations. The delay has meant that medical or scientific investigations such as possible injury to J’s anus or DNA investigations cannot be undertaken. The accused may have lost the opportunity to interview potential witnesses. I have taken those disadvantages into account in considering whether or not the prosecution has proved its case beyond reasonable doubt.
Owing to the fact that the prosecution case depends upon the evidence of J, who is giving an account of events that he says happened up to 20 or so years ago and owing to the delay with the consequent disadvantages to which I have referred, I have scrutinised J’s evidence with great care. I have throughout my consideration of the evidence borne in mind that the accused is forensically disadvantaged. I have directed myself that I should not convict him unless I am completely satisfied of J’s truthfulness and accuracy. I make it clear that I have borne in mind that direction when considering the whole of J’s evidence; that is, in relation to particularised acts and acts which have not been particularised.
The prosecution witnesses
The prosecution called J; his mother; his estranged wife, C; his former partner, S; and Detective Brevet Sergeant Sutherland, the officer in charge of the investigation. I also received in evidence declarations from a number of witnesses, photographs and documents.
One of the documents, a chronology, Exhibit P1, was tendered by consent. It sets out each of J’s birthdays and the times at which he attended particular schools. The school dates were obtained from Education Department records. Exhibit P1 also sets out addresses at which the accused is reported to have been living at particular times. That information comes from police documents or from public records such as Motor Registration records. That is, the chronology suggests where the accused might have been living at particular times.[1] It does not show the times or dates on which he began or ceased living at a particular address. Nor does the exhibit purport to show every address at which he may have lived. The fact that the chronology is, or may be incomplete, is a matter to which I shall return when discussing the reliability of J’s evidence.
[1] T 26, line 34.
I turn to my assessment of the witnesses, leaving J till last.
J’s mother was a defensive witness. I thought that she was anxious to portray herself in the best light possible and that her anxiety to do so led to her giving incorrect evidence about some matters. For instance, her estimate of the period during which J lived with the accused was very much an underestimate; even she recognised that to a certain extent. But much of her evidence was unchallenged. In particular, there was no challenge to her evidence that, at about the time she and her sons first met the accused, there was a boy living with him. While she was uncertain about some of the addresses at which the accused had lived, she was clear that when he first moved from his unit at Loades Street, he moved to an address on Salisbury Highway. I accept her evidence on that topic, a topic to which I shall return.
C, J’s estranged wife and his former partner, S, both impressed me as honest witnesses who did their best to remember events and conversations which occurred many years ago. Subject to their own concessions about their lack of memory owing to the passage of time, they were accurate and reliable.
Detective Sutherland’s evidence was not challenged. I accept him as an accurate and reliable witness.
The defence witnesses
I do not accept at face value the evidence of the accused’s mother, Mrs M. In my view, she tried to give evidence favourable to her son. For instance, she volunteered[2] an explanation for J going to live with the accused: that it was a social worker who approached the accused about having J live with him. No such suggestion was put to J’s mother, who was cross-examined at some length about the circumstances surrounding her son going to live with the accused.
[2] T 313.
Mrs M’s evidence is also unreliable because she made a positive and confident assertion about a matter which is contradicted by undisputed evidence. She said that she last saw J in 2009 in the year before his marriage to C. That is wrong. J’s marriage certificate, Exhibit P12, records that he and C married on 18 November 2006.
I emphasise these matters about Mrs M’s evidence because her evidence about the accused’s various addresses, and the order in which he lived at them, effectively invited me to infer that he did not move straight from his Loades Street address to an address on Salisbury Highway. That is an important topic and Mrs M’s evidence is apparently contrary to that of J and his mother.
I also think Mrs M exaggerated the amount of time she spent living with the accused. Where her evidence differs from that of J and his mother, I prefer their evidence.
The evidence received de bene esse
The defence called Dr Melanie Takarangi, a psychologist, and tendered a report prepared by her in relation to the reliability of J’s memory and the possible effects on his memory of questions asked or suggestions made to him by counsellors. I note here that Dr Takarangi is a highly qualified psychologist whose expertise is in the field of human memory. There was no challenge to her expertise.
In my view, Dr Takarangi’s evidence is inadmissible for two reasons. First, the evidence is irrelevant to the issue before me: the reliability of J’s memory. Dr Takarangi has not addressed that issue. As she said at the beginning of her report, the accused’s solicitors had asked her to address a series of questions about the state of the scientific research relating to memory for traumatic events. While her report is undoubtedly learned, it is general. She did not interview J, nor did she interview any counsellors who spoke to him. Further, when told during the course of her evidence of J’s complaints of sexual abuse before speaking to counsellors, Dr Takarangi said “I’m not aware of the exact scenario … I’m just commenting on different ways it could go”. Accordingly, the report does not address the specific topic of J’s memory.
My second reason for declining to admit the psychological evidence is that it does not satisfy one of the pre-conditions for the admission of opinion evidence. The relevant law about the admissibility of a psychologist’s opinion in similar circumstances was neatly stated by Riley J in R v Joyce:[3]
The fundamental position is that it is a matter for the tribunal of fact to determine whether the evidence of a witness is reliable, reflects the truth and is to be accepted by the tribunal. In determining whether expert testimony should be received in the process the matters to be considered include whether the issue is such that it cannot properly be determined with the assistance of an expert and then, assuming that to be so, whether there is a field of expertise appropriate to the issue. The relevant questions were posed by King CJ in R v Bonython (1984) 38 SASR 45 at 46; 15 A Crim R 364 at 366 as follows:
(a) Whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and
(b) Whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.
In the later case of R v C (1993) 60 SASR 467 AT 474; 70 a Crim R 378 at 384 King CJ pointed out that courts should be cautious in approaching the question of whether the subject matter of proposed evidence is so special and so outside ordinary experience that the knowledge of experts should be made available to the courts and juries. He observed that courts must be very cautious in approaching that question in order to safeguard the integrity of the trial process and to protect the capacity of courts and juries to discharge their fact-finding functions from being overwhelmed by a mass of expert evidence on topics which could be judged without the assistance of such evidence. The law jealously guards the role of the jury, or the court where it is the trier of the facts, as the judge of human nature, of the behaviour of normal people and of situations which are within the experience of ordinary persons or capable of being understood by them: R v Runjanjic (1991) 56 SASR 114 at 120; 53 A Crim R 362 at 368 (‘Runjanjic’).
[3] [2005] A Crim R 241 at [25] to [26].
What both Riley J and King CJ have said in the paragraphs which I have cited are apposite here. As the trier of fact it is for me to determine J’s credibility and reliability. Not only did I have the opportunity to assess him during his evidence, I am aware, as is a jury, of the matters to which King CJ referred in Runjanjic (above). Accordingly, I decline to admit the psychological evidence on that basis also.
J’s evidence
I now summarise J’s evidence-in-chief.
When he first met the accused, J was four or five. He was living with his mother and two brothers in one of a number of blocks of units at Salisbury. There was a common grassed area on which the boys used to play. There, they met an eight or nine year old boy named ‘A’ who lived with the accused and who, J thought, was the accused’s son. The four boys began playing Nintendo in the accused’s unit but, after some months, A left. J continued to go to the unit to play Nintendo even after his brothers had ceased doing so. He was fond of the accused, who treated him well.
After a while, the accused and J’s mother agreed that J would stay overnight, on Saturdays. Sometime later, J began staying on both Friday and Saturday nights. From the time he was eight or nine, J lived with the accused at a number of different addresses for some four years. During that period, the accused sexually abused him. J described a progression of touchings which increased in intimacy and led to masturbation and to oral and anal intercourse.
The first physical contact between J and the accused comprised quick hugs by way of welcome when J arrived to stay. Later, the accused began kissing J on the forehead when saying goodnight to him at bedtime. Later still, he began to rub his hand across J’s back when he said goodnight. The touchings progressed to the accused kissing J on the cheek and to him holding his hand on J’s chest with the top button of J’s pyjamas undone. Gradually, more buttons were undone as the accused rubbed J’s chest. He then started hugging J during the day and giving him pecks on the cheek. The kisses became ‘more passionate, almost an open mouth kind of thing’.[4] Then, at bedtime, the accused ran his hand down J’s thighs and lower legs, almost to his feet. That progressed to the accused’s keeping his hands longer on J’s thighs and then putting his hand down the waist band of J’s jocks and rubbing J’s thighs close to his genitals. That activity became a nightly routine for a while.
[4] T 39.
J ended up sleeping with the accused in the accused’s bed about once a week. He began masturbating J, at first with J facing away from him and then with J lying on his back and the accused lying on his side next to J. J told me that the accused then started ‘to play around with my arse, stroking and rubbing my arse with his fingers’.[5] He remembered an occasion when the accused inserted one of his fingers into J’s anus up to the first knuckle of that finger, and an occasion when the accused inserted his whole finger.
[5] T 43.
Eventually, there was penile/anal intercourse. J described ending up on his hands and knees while the accused rubbed his penis around J’s ‘arse crack’ slowly and then inserted his penis into J’s anus. J said that that hurt and went on to say that he was ‘pretty sure’ it went inside his anus. He could feel the accused penis moving around inside him trying to get in a bit further. J was ‘pretty sure’ that the accused did that a couple of times. He thought that the accused ejaculated on the second occasion. These occasions of the accused inserting his penis into J’s anus were perhaps a month apart but J was not sure. Penile/anal intercourse occurred at least a couple of times.
There were a number of occasions when J masturbated the accused and sucked the accused’s penis and when the accused sucked J’s penis. On one occasion, the accused ejaculated into J’s mouth.
The occasions of J’s sucking the accused’s penis were probably a month or two apart, although J was not sure. He did not know how many times the accused had sucked his penis, saying ‘it was probably five or more, I reckon’.
Later in his evidence J was even less certain about times and occasions. The accused put his finger into his anus on more than one occasion but J was not too sure about that. He was ‘pretty sure’ that the accused had sucked his penis on five or more occasions but he was not a hundred percent sure; he knew for a fact that there was one such occasion. There was at least one occasion when he sucked the accused’s penis and those occasions - of the accused sucking his penis and of his sucking the accused’s penis - were probably about two months apart. The occasions of the accused inserting his finger into J’s anus and the occasion of him inserting his penis into J’s anus were ‘probably a couple of weeks apart’.
The sexual activity became normal routine for J.
J and the accused lived at a number of addresses: premises on Salisbury Highway, on Waterloo Corner Road, at O’Connell Street and at Myall Boulevard. The house at Myall Boulevard was the last house at which they lived together.
J gave evidence about the two photographs of him. In one of them he is kneeling, naked, playing on the Nintendo. That photograph was taken just after he had come out of the shower. In the other photograph, in which he is lying on his stomach naked, the accused was about to give him a massage with oil. He remembered occasions of massages with oil all over his body including his ‘bum’.
J was very fond of the accused. In cards that he made at school, J called him ‘dad’. The accused provided for J well, buying him clothes and preparing J’s favourite meals. While living with the accused, J’s school work improved.
J went back to live with his mother, at Whyalla, when he was 12. He fixed the time by reference to the holiday in Sydney on the occasion of the Millenium Year: he went to live with his mother not long after his return from that holiday. He did not remember travelling by bus from Whyalla to stay with the accused for school holidays at the house at Myall Boulevard.
Cross-examination of J
I set out, in summary, some significant parts of the cross-examination.
J said that the accused moved directly from his address at Loades Street to premises at Salisbury Highway, that it was there that the sexual abuse began, and that it was at the O’Connell Street premises that it ended. J could not remember anything sexual occurring at the accused’s house at Myall Boulevard, where they last lived together.
J suffered from asthma, sometimes needing a nebuliser. To treat his asthma, the accused sometimes rubbed Vicks onto J’s chest and back.
J could remember going up to Whyalla and back but did not know where he stayed when he was in Adelaide on those occasions.
He agreed that the accused’s mother, Mrs M, lived in Naracoorte and had been a grandmother to him but he did not remember her staying with the accused for long periods. He agreed that he went to Naracoorte for Christmas at least twice.
J agreed in cross-examination that he had not told the police about some of the incidents he described in his evidence; for example, that there was an occasion when the accused inserted a whole finger into his anus. He agreed that he told the police that he first noticed anal bleeding after the first occasion the accused inserted his penis into J’s anus whereas, in evidence-in-chief, he said that he noticed bleeding on the second occasion of such sexual intercourse. He agreed that he told the police that, without warning, on occasions of oral sexual intercourse, the accused would ejaculate into his mouth, while in evidence he said there was one occasion of such ejaculation into his mouth. Contrary to the evidence of his former partner, S, he said that he did not remember any occasion of showering with the accused.
J’s evidence about his memory
I turn now to J’s evidence about his memory, or lack of memory, of relevant events. The reliability of his memory was a significant feature in the trial and it is the main plank of the defence case and the reason the accused called the expert evidence which I received de bene esse. I set out some passages of his evidence.
The possibility of J’s memory being unreliable was first raised in his answers to questions about his complaint to his wife, C. He said (at T 76):
AI explained to her like what he did, but I never held anything against him. I know what he did was wrong but I didn’t blame him. I didn’t believe myself it actually happened and that is what I told her. This is how I felt.
I then asked what he meant by saying that he did not believe that it actually happened. He answered:
ABecause when I – stopped happening – until age 18 I pushed all that aside so I never – I can’t remember a lot with what has happened in my past and I never thought – I didn’t believe the thoughts and flashbacks I was having actually happened. But I ended up getting some counselling and they explained to me that it is actually my memories about what has happened because I turned around and said I’m having these sort of flashbacks, I can’t sleep, and they turned around and basically said it’s basically your memory, memories are mucked up, and it is basically trying to put all the pieces and what has happened and I’m still trying to do that now.
The evidence continued:
QAfter you stopped living with (name of accused), the accused, and went back to live with your mother, did you think about the things that had happened to you.
ANot until – not until I was 18, I pushed all that aside.
QSee if you can answer this if you are able: were you deliberately not thinking about it.
AVisually I did because I did not want to remember anything and that is how I trained myself just to push all my memories aside.
In cross-examination, J was asked what the counselling sessions involved. He said:
AShe gave me some relaxation things I could do to help me relax, help me to sleep, she tried to get me like to meditate to try to see if I can bring up some memories, but it was just more letting, just coaching me to bring out what I can remember. (T 143/12-16).
He went on to describe the relaxation sessions: against a background of relaxing music, he would close his eyes, try to calm down and try to remember anything while the counsellor asked him questions. Those questions were about his childhood, what parts of it he could remember, whether he could remember, for example, going to the shops with people.
When asked about his evidence of ‘coaching’; he said (at T 144/10):
AJust certain questions, I don’t know what questions she’s asked and that, but just trying to get me to remember everything in my past.
Later in cross-examination, Mrs Powell returned to the topic:
QIf I had asked you about these events with (accused’s name) when you were 18 or under 18, is it fair to say you would have had no memory.
AYes, I tried not to remember. I struggle to remember a lot of the details.
QSo it was after that, you had the therapy, that has assisted you in your memory of events.
AIt was after I turned 18 before I got any assistance, I didn’t see a counsellor until I was about 20.
I then asked:
QSo are you saying that that the memories came back to you unassisted by any counselling between the time you were about 18 and 20.
AYes.
In re-examination, J said that he saw Ms Clare Logan, a psychologist, when seeking assistance from an organisation SYC Trace-A-Place, an organisation which offered help to homeless people. Ms Logan asked him to answer a number of questions by way of making a full assessment of him and, having done so, she suggested that he see a counsellor and referred him to United Community Care. I infer from that evidence that it was at United Community Care that he first mentioned the alleged abuse to a counsellor.
Defence criticisms of J’s evidence
I now deal with a number of specific criticisms which the accused’s counsel, Mrs Powell, made of J’s evidence. The criticisms were made against the background of her general submission that J’s memory is unreliable and that he is given to adopting as truth suggestions that have been made to him.
Mrs Powell began with J’s evidence that, when he first met the accused, there was a boy named A, who, J thought, was the accused’s son, living with the accused. When J spoke to the police, he referred to the boy as ‘D’. In contrast to that evidence is the agreed fact that a boy named D (accused’s surname) was born on 16 November 1989; that that boy was removed from the accused’s care by the child’s mother on 19 August 1991 and taken to Western Australia; and that after an action for custody was initiated in the Family Court of Australia, it was determined that the accused was not the biological father of D and the action was abandoned.
Mrs Powell submitted that J’s evidence is unreliable because the boy D had left the state in August 1991, when J was only three. Mrs Powell argued that because J has heard the name ‘D’ he was prepared to give evidence that the boy he thought was the accused’s son was called D.
I do not accept that J’s use of the name D reflects adversely on his credibility or reliability. What J said on the topic must be considered with his mother’s evidence. She said that in 1993 and 1994, on the occasion on which she first met the accused, the accused said that:
The kids were up at his place playing the play station.
When asked in examination-in-chief what ‘kids’ the accused was referring to J’s mother answered:
My three and there was another kid, when the kids were playing outside they were playing with another kid that was (accused’s name).
She went on to say:
The ‘kids’ had told her that the child was (accused’s name).
J’s mother was not challenged about her evidence on this topic.
J agreed in evidence that he had become good friends with the boy, who was then about nine or 10, and who had later moved away. At some time, J heard the name D from his mother when she told J that the accused had a son who had been taken away by his mother.
J’s mother’s evidence establishes that there was another boy who played at the accused’s when J was a young boy and that, at some stage, J was told the accused had a son whose name was D.
J is wrong, owing to the agreed fact, about the boy at the accused’s unit being D. But that does not shake my confidence in J’s testimony on other matters. He was, after all, a very young boy. He is simply mistaken.
Mrs Powell also criticised J’s evidence about weekend arrangements between him and the accused. The effect of J’s evidence-in-chief was that, after he began staying on Friday nights, he and the accused would spend a leisurely Saturday morning together at the accused’s unit. Later in evidence, he agreed that the Friday night arrangements were made so that he could go bowling early on Saturday mornings with he accused. Again, if J is wrong or partly wrong on this topic it does not matter. There was no evidence that the bowling arrangements continued for any particular length of time; or J may have simply confused Saturdays with Sundays.
Mrs Powell also submitted that J’s evidence is unreliable because he insisted that the accused moved directly from his unit at Loades Street to premises on Salisbury Highway. Further, he said that the sexual touchings began at those premises on Salisbury Highway. In making her submission, Mrs Powell relied particularly on Exhibit P1 which would suggest that the accused moved from Loades Street to premises at Waterloo Corner Road. As I have already said, Exhibit P1 does not purport to be a comprehensive and accurate record of all addresses at which the accused lived and the times at which he lived at those addresses over the relevant period. While the evidence of the accused’s mother, Mrs M, appears at first glance to support Exhibit P1, I prefer the evidence of J and his mother.
J’s mother gave evidence that the accused ‘…moved from Loades Street to across the road, across Salisbury Highway, to another block of units; that is where J went to live with him’.[6] J’s mother said that the weekend arrangements started at Salisbury Highway.[7] She gave a general description of the premises, or their location, when she said that when he was staying for the weekend, the accused was living just on the other side of the Salisbury Highway, within walking distance.[8] She described going up a path across Salisbury Highway to get to the premises and said that his unit was next to Pitman Park.[9]
[6] T 196.
[7] T 233.
[8] T 297.
[9] T 234.
I accept J’s evidence that the accused moved from his unit at Loades Street directly to premises just on the other side of Salisbury Highway from Loades Street. J’s and his mother’s evidence, that the accused lived at Salisbury Highway immediately after he left Loades Street, is not inconsistent with him living there again some years later. Even Exhibit P1 shows that he moved a number of times during the relevant period.
Mrs Powell criticised J’s evidence about the accused inserting his finger into J’s anus and about occasions of anal intercourse. J said that he thinks the accused put his fingers in his anus once but went on to say that he was not sure; that it may have been more than once.[10] He also said that the accused inserted his whole finger whereas, in examination-in-chief, he had said that he had inserted his finger up to the knuckle. His evidence was that that insertion was on a different occasion. His evidence was also inconsistent about the occasion on which he bled after anal penetration by the accused’s penis. None of those inconsistencies trouble me. As he said a number of times during his evidence, sexual activity between him and the accused became normal. He says that he remembers the first occasions of anal penetration because they were painful.
[10] T 80.
Assessment of J
J impressed me as a simple and genuine man. He was shy and not very articulate; certainly no wordsmith. At times, he was distressed. He never presented as angry or vindictive; he never argued with counsel. He showed no aminosity to the accused. He readily made concessions if he thought he may have misinterpreted the accused’s behaviour. For example, he agreed that the accused rubbing his chest may have been for therapeutic reasons, namely, to apply Vicks Vaporub to ease his asthma. J gave a coherent and compelling account of his relationship with the accused. His account was telling in its detail, especially his description of his seduction: the first apparently innocent goodnight kisses and touchings, the spaced unbuttoning of his pyjamas, the increasing intimacy of the touchings, the changes in position for masturbation. He was very hesitant about giving evidence about any occasion of sexual activity if he could not remember the incident and its surrounding details specifically. That hesitation explains the seeming uncertainty in his evidence. It does not cause me to doubt his evidence. He was recalling events from his childhood, events that he had, as an older teenager, tried to forget and events that he had, as a child, accepted as a normal part of life. Many of the events he was asked to recall happened at night, at bedtime, when he was a boy. I would not expect him to remember specific incidents in a course of sexualised conduct which had become a normal part of his life.
I do not accept the suggestion that J’s allegations are the result of suggestions made by counsellors.
I accept J’s evidence as accurate and reliable.
Complaint
J’s complaints to his mother, to C, and to S, came years after the sexual touchings had ceased. In those circumstances, none of the complaints, in my view, can be used for showing consistency of conduct. I have used the complaint to J’s mother as evidence of the way in which his complaint first came to light. I have not used the evidence of what he said to any of those three women as evidence of the truth of the contents of his statements. I have considered the timing of his complaint to C, when considering the defence submission that his allegations are the result of suggestions made by counsellors. I have had regard to the contents of what he said to S on some topics when considering whether or not J has made statements inconsistent with his evidence or has added to his evidence. For example, in considering J’s reliability, I have taken into account the fact that he told S that he and the accused used to shower together whereas he told me in evidence that he did not remember their showering together.
Unparticularised acts
Although the charge on count 1 is persistent sexual exploitation of a child, I have, out of an abundance of caution, directed myself as follows.
J gave evidence of a number of sexual touchings which are not particularised on the Information. Those touchings are: the accused rubbing J’s back, legs, hips and chest; the accused rubbing his hand down J’s back over J’s clothes; pecking on the lips; rubbing J’s thigh; hugging J; kissing J on the forehead; stroking J’s anal area on and under his clothing; and rubbing his penis against J’s bottom. While I accept beyond reasonable doubt that all of those touchings occurred, I have not used any of them for a propensity purpose. That is, I have not reasoned from the fact that the accused touched J in those ways that he is, therefore, the sort of person who would have touched J in the ways particularised on the Information. I have used the unparticularised touchings as evidence of the way the sexual relationship between J and the accused developed. Those touchings, especially the gradation of them, explain how it was that J came to acquiesce in the sexual touchings which are particularised and how it was that the accused believed J would submit to those particularised acts.
Conclusion – count 1
I am satisfied beyond reasonable doubt that the accused indecently assaulted J by kissing him on the lips on a number of occasions and I am satisfied beyond reasonable doubt that the accused indecently assaulted J by masturbating him. I am further satisfied beyond reasonable doubt that there was a period of more than three days between the first occasion of such kissing and the first occasion of masturbation. I am also satisfied beyond reasonable doubt that there were occasions when the accused inserted his finger into J’s anus, inserted his penis into J’s anus, caused J to masturbate him, sucked J’s penis and caused J to suck his penis.
Use of the agreed fact
As I said earlier, the accused admitted that he has a sexual interest in images of prepubescent boys. I infer from that that he is sexually attracted to prepubescent boys. I have not reasoned that, simply because he has such a sexual attraction, he indulged it by sexually abusing J. I have used the fact of such sexual attraction as a motive for his abusing J. That he has such a motive is an item of circumstantial evidence which lends support to J’s allegations. That is the only use I have made of the accused’s admitted possession of the photographs the subject of counts 2 and 3.
I reject as a reasonable possibility that J has invented or imagined that he was sexually abused as a boy by a man who, coincidentally, was sexually attracted to prepubescent boys.
I find the accused guilty of count 1, the offence of sexual exploitation of a child.
Count 2
I turn to count 2, the offence of aggravated possessing child pornography.
There is no doubt that the accused was in possession of the two Polaroid photographs of J, nor can there be any doubt that, at the time the photographs were taken J was under 14, and that the accused knew he was under 14.
The photographs are of a prepubescent boy; the accused has a sexual attraction to prepubescent boys; the photographs were found together with objects which, I infer, were associated with the accused’s sexual interest in prepubescent boys, namely, babies, nappies and dummies. Electronic copies of the photographs were stored in the accused’s collection of pornographic material depicting prepubescent boys. That is, the photographs were stored with material admittedly intended to gratify the accused’s sexual interest in prepubescent boys. In those circumstances, I am satisfied beyond reasonable doubt the accused kept the photographs of J naked to excite or gratify his sexual interest and I am further satisfied that he well knew of the pornographic nature of those two photographs.
I find him guilty of count 2.
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