R v M, Jr

[2014] SADC 211

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v M, JR

Criminal Trial by Judge Alone

[2014] SADC 211

Reasons for the Verdicts of His Honour Judge Muscat

16 December 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

The defendant is charged with one count of persistent sexual exploitation and one count of rape of his stepson.

Verdicts: Not guilty of both counts.

Evidence Act 1921 ss 34CB, 34L, 34M, 34P, 34R, referred to.
R v Finn [2014] SASCFC 46; R v Maiolo [No 2] (2013) 117 SASR 1; R v M (1994) 62 SASR 364; Mule v R (2005) 221 ALR 85; Barry v Police (2009) 197 A Crim R 445; Spence v Demasi (1988) 48 SASR 538, considered.

R v M, JR
[2014] SADC 211

Introduction

1. The defendant has been charged with the persistent sexual exploitation of his stepson, A. The offending is alleged to have occurred between early January 1999, when A was aged about 15 and a half years to when he turned 18 years of age in 2001. The sexual acts alleged against the defendant involve masturbation, fellatio and penile anal intercourse.

2. The defendant is also separately charged with the penile anal rape of his stepson, when A was about 23 years of age. 

3. On the prosecution case, the charges arise against a background of sexual abuse of A by the defendant, from a time when A was about 8 years of age until his early 20s. The early abuse is alleged to have occurred when the family lived in Queensland and then continued after they returned to South Australia in early 1999. The evidence of the alleged acts of sexual abuse in Queensland was admitted for very specific purposes relating to the charge of persistent sexual exploitation, which I will outline later in these reasons. Further acts of alleged sexual abuse against A, after he turned 18 years, were admitted against the defendant for similar and specific purposes relating to the charge of rape.

4. The issues at trial were whether the sexual abuse, which formed the subject of the charge of persistent sexual exploitation, occurred at all, and whether, in relation to the charge of rape, the penile anal sexual intercourse occurred without the consent of A.

5. For the reasons which follow, I find the defendant not guilty of both counts.

   The relevant law relating to the charges and generally

6. The defendant is presumed innocent of each of the charges he faces. The onus of proving the charges rests solely upon the prosecution. The defendant’s guilt must be proved beyond reasonable doubt. As he is charged with two counts, I have considered each count separately and only upon the evidence relating to the particular count under consideration. Although, in this case, some of the evidence was relevant to both counts, as I have outlined in these reasons.

7. The defendant gave evidence in his defence and also called his wife, A’s mother. I will deal with the defendant’s evidence and that of his wife during various parts of these reasons.

8. The defendant was under no obligation to give or call evidence. His evidence was not undervalued by me simply because he was charged with committing these offences. In assessing his evidence, I did so in the same way as I assessed the evidence of the other witnesses.

9. By giving evidence, the defendant did not assume any onus of proof.  As I said earlier, the onus is solely upon the prosecution throughout, to prove the charges against the defendant beyond reasonable doubt.

10. Even if I rejected the evidence of the defendant or that of his wife, it would not follow that I would find him guilty of the charges. I can only convict the defendant if, taking into account the whole of the evidence, I am satisfied beyond reasonable doubt that the prosecution has proved the elements of each offence charged, beyond a reasonable doubt.

    Motive for A to lie about his sexual abuse

11. The defendant was under no obligation to demonstrate why his stepson was motivated to give false evidence against him, as the defendant alleged during his case. The defendant suggested that A was ‘racked with guilt’ over having engaged in consensual sexual activity with him, when A was in his early 20s and, as this had been affecting A’s life and marriage, A decided to disclose to his wife that he had been sexually abused by the defendant over many years, since he was a boy, in an endeavour to disguise the true situation of consensual sex engaged in with the defendant as an adult. A denied this suggested motive put to him by the defendant’s counsel.[1]

    [1]    T130-135.

12. The absence of a motive for a witness to lie has no part to play in determining whether or not the prosecution has proved a charge beyond reasonable doubt. A defendant may never know why a witness is not telling the truth. Most of the time, it will only be speculation on the part of a defendant, just as it would be for the trier of fact, to engage in such a process. I understand that it is only natural for someone accused of something that they believe to be false, to ask themself, why someone is not telling the truth about them. However, that person is under no obligation, in a criminal trial, to prove such a motive. To require a defendant to do so, would undermine the presumption of innocence by shifting the onus of proving a charge beyond reasonable doubt from the prosecution to the defendant, by requiring a defendant to prove their innocence by demonstrating a reason or reasons, why the truth is not being told.

13. Whilst I have considered the suggested motive for A to lie, as put by the defendant’s counsel, it is not something that I have required the defendant to have proved or establish as being true. As this case demonstrates, suggesting a motive to a witness as to why they are lying, is really no more than speculation on the part of the defendant, unless that motive can actually be proved, which invariably will not be the case.

14. Speculation has no part to play in a criminal trial.

15. A denied the suggested motive and an examination of the evidence said to demonstrate the existence of this motive was lacking.[2]  Equally, the failure on the part of the defendant to establish such a motive, does not, as the prosecution faintly submitted, buttress the evidence of A.[3] 

    [2]    See exchange during the Defence Closing Address at T662-668.

    [3]    See exchange during the Prosecution Closing Address T625-627.

    Uncharged sexual conduct – s 34P Evidence Act

16. A gave evidence of having first been sexually abused by the defendant at about the age of 8 years, after the family moved to Queensland. A outlined how the sexual abuse commenced, with the defendant asking A to masturbate him whilst they were in the car, often whilst driving, but not limited to when the car was moving. These acts progressed to the defendant masturbating A, causing A to perform fellatio upon him and to the defendant also performing fellatio upon A. A also recalled one specific occasion, when the family was living with his paternal grandmother, when the defendant digitally penetrated his anus. 

17. In early 1999 the family returned to live in South Australia. After staying elsewhere briefly, the family settled in Trott Park. A gave evidence that the sexual abuse continued whilst living at this house. The charge of persistent sexual exploitation encompasses all sexual activity between the defendant and A whilst living at this address, until A turned 18 years of age.   

18. Sexual activity continued thereafter, as described by A. In opening the prosecution case, the prosecutor informed me that the ongoing sexual activity occurred with the consent of A,[4] with the exception of one act of penile anal intercourse performed by the defendant upon A, where A was clearly not consenting. This act of intercourse was alleged by A to have taken place in his bedroom, in what was described in evidence as the ‘granny flat’, built by A and the defendant at the rear of the main house. This act formed the subject of Count 2, that of the anal rape of A by the defendant. It was submitted that A was then aged around 23 years. It was put that A arrived at the point in his life where he was no longer prepared to submit to sexual activity with the defendant[5] and so physically resisted him, as well as telling the defendant ‘no, go away’.[6]

    [4]    Prosecution Opening T3, 5-6.

    [5]    Prosecution Opening T3.

    [6]    Prosecution Opening T5.

19. However, when giving evidence, A stated that he was not consenting on any of the occasions that the defendant engaged in sexual activity with him after turning 18 years of age, and that he made his lack of consent clearly known to the defendant, through both his words and actions. He differentiated the many similar acts of non-consensual sexual activity from the occasion the subject of Count 2, by stating that he resisted the defendant more strongly on that occasion than at any other time before, although he could not remember if other acts of sexual activity occurred after this alleged incident.

20. During the prosecutor’s opening address, I questioned the relevance of the proposed evidence of uncharged acts of consensual sexual activity between the defendant and A, after A had turned 18 years of age. It was contended that the relevance of this evidence was to show that ‘the rape simply didn’t occur out of the blue’.[7] Upon further questioning from me as to the relevance of this evidence, I was informed that the consensual sexual activity, which had been taking place between the defendant and A over many years after A had turned 18 years of age, explained why the defendant was ‘emboldened’ to engage in sexual intercourse with A.[8] The prosecutor had earlier stated to me that he did not need to seek admission of the evidence of consensual sexual activity between the defendant and A, pursuant to s 34P of the Evidence Act 1921, because those acts were not unlawful and therefore was not discreditable conduct on the part of the defendant, as A was consenting.[9]

    [7]    Prosecution Opening T5.

    [8]    Ibid.

    [9]    Prosecution Opening T3.

21. Presumably, the prosecutor also considered that he did not require my permission to lead evidence of numerous occasions, of what the prosecutor understood to have been consensual sexual activity between the defendant and A, after A had turned 18 years of age, in compliance with s 34L of the Evidence Act 1921, because that evidence amounted to ‘recent sexual activities with the defendant’.[10]

    [10] See s 34L(1)(b) Evidence Act 1921.

22. Had the prosecutor sought permission to lead this evidence, I would have granted it. Indeed, the defendant’s own case was based on there being consensual sexual activity with A, including penile anal sexual intercourse, when A was an adult, and I would have granted the defendant permission to cross examine A on this activity, in any event.

23. As it turned out, however, A was clear in his evidence that all sexual acts were non-consensual and so I invited the prosecutor to justify the admission of this evidence, pursuant to s 34P of the Evidence Act 1921.[11]

    [11]   T356-357.

24. As for the evidence of the uncharged acts of sexual activity between the defendant and A, while they were living in Queensland, I was satisfied of its admissibility pursuant to s 34P(2) of the Evidence Act 1921, namely; to place the conduct, the subject of the count of persistent sexual exploitation into its proper context; providing a complete picture of the sexual activities engaged in, so as to explain its continuation in South Australia. In other words, that the sexual activity in South Australia did not simply ‘occur out of the blue’; as explaining A’s acquiescence or acceptance of the sexual activity and why A did not complain about the abuse to anyone earlier than he did.[12] The prosecutor specifically did not seek to justify the admission of this evidence as disclosing a particular propensity or disposition on the part of the defendant to sexually abuse A, as a form of circumstantial evidence to prove either count charged.[13]

    [12]   Prosecution Opening T3-4.

    [13]   Prosecution Opening T4.

25. As for the uncharged conduct of non-consensual sexual activity, which A said the defendant engaged in after A turned 18 years of age, the prosecutor sought admission[14] on the basis that it also placed the act of rape into perspective, but more importantly, that it provided evidence which assisted in proof of the defendant’s knowledge that A was not consenting to penile anal intercourse with the defendant on the occasion charged.[15] The evidence was admitted on this basis and not as propensity or disposition evidence.

    [14]   After A completed his evidence.

    [15]   Prosecution submission T357.

26. I must be satisfied of the truth of this evidence before I may use it for the admissible purposes for which it was admitted.

27. In summary, the evidence was admitted for the following purposes only:

    ·to explain the nature of the relationship between the defendant and A and place into context the acts of sexual exploitation which form the subject of the counts of persistent sexual exploitation and rape;

    ·to show the course of events leading up to and surrounding the acts of sexual exploitation, which A was able to recall with some specificity;

    ·to explain why A was unable to identify more specific incidents because of the frequency of the sexual activity;

    ·to explain why A viewed the conduct, the subject of the count of persistent sexual exploitation, as a normal part of his family life;

    ·to provide an insight into why A came to submit to such behaviour and did not appear to be surprised by the conduct or complain about it to anyone at the time it was happening;

    ·to explain why the defendant was so often emboldened to behave the way he did towards A, knowing that A would not complain about his behaviour; and

    ·finally, in relation to the count of rape, it is relevant to proof of the defendant’s knowledge that A was not consenting to the act of penile anal sexual intercourse. As the prosecutor submitted, when explaining the relevance of the numerous occasions of non-consensual sexual activity after A turned 18 years of age, ‘it places the fact that the defendant was on notice that A did not want to have sex and he [the defendant] had been told ‘no’ previously about it’.[16]

    [16]   Prosecution submissions T357.

28. I have not used this evidence to reason that the defendant has sexually abused A so many times, including raping him on numerous occasions as A alleged, that the defendant must therefore have committed the offences with which he is charged.[17] The prosecution has specifically disavowed any reliance on this evidence as a form of circumstantial evidence in order to prove either count charged, based on the defendant’s propensity or disposition to act in this way towards A.[18] 

    [17] Section 34R of the Evidence Act 1921.

    [18]   Prosecution submissions T4, 357.

29. In order to find the defendant guilty, I must be satisfied beyond reasonable doubt, of the elements of the offence of persistent sexual exploitation, relying on the particularised acts of sexual exploitation identified in that count and the elements of the offence of rape.

    Count 1 - Persistent Sexual Exploitation of a Child

30. The defendant is charged in Count 1 with persistent sexual exploitation of a child. An adult person is guilty of this offence if, over a period of not less than three days, he commits more than one act of sexual exploitation of a child under the prescribed age. In this case, because the defendant was A’s stepfather, the prescribed age is 18 years.

31. The particulars of the various acts of sexual exploitation are alleged in the charge as having taken place between 1 January 1999 and 28 July 2001 at their home address.

32. The offence of persistent sexual exploitation contains five elements, each of which must be proved by the prosecution beyond reasonable doubt.

33. The first element is that the defendant was an adult at the time of the alleged offending.

34. The second element is that the defendant committed sexual acts against a particular child, namely A.

35. The third element is that the child, A, was under the age of 18 years.

36. The fourth element is that the defendant committed more than one act of sexual exploitation against A.

37. The final element is that the acts were committed over a period of not less than three days. This simply means that the time between the first and the last act of sexual exploitation proved must be three days or more.

38. I will now deal with each of these elements in more detail.

39. The first element is that the defendant was an adult at the time of the acts upon which the charge is based. The defendant was born on 25 March 1966 and so clearly was an adult at the time of the alleged sexual activity.

40. The second element is that the acts were committed against a particular child, namely A.

41. The third element is that A was under the age of 18 years at the time the alleged acts of sexual exploitation were committed upon him. A was born on 29 July 1983 and has given evidence of a number of different acts of sexual exploitation having taken place between the ages of 15 and a half and 18 years of age.

42. The next two elements are in contest in this trial.

43. The fourth element is that the defendant committed more than one act of sexual exploitation against A. 

44. A person commits an act of sexual exploitation if they commit a sexual offence. In this case, the prosecution alleges that the defendant committed three particular kinds of sexual offence against A. The particulars are set out in the first count on the Information charging this offence.

45. The acts of sexual exploitation that the prosecution allege the defendant to have committed are, indecent assault, by masturbating A, procuring an act of gross indecency, by causing A to masturbate him, and sexual intercourse, in the form of receiving and performing fellatio and engaging in penile anal intercourse upon A. 

46. It is not disputed that each of the sexual acts alleged amount to an act of sexual exploitation necessary for this offence.

47. In relation to this fourth element, the prosecution must prove that the defendant committed at least two acts of sexual exploitation. In this respect, it need only prove that the defendant committed two or more of any combination of the proved sexual offences.

48. I must be satisfied about the commission of the acts of sexual exploitation alleged and find them proved beyond reasonable doubt. I must also be satisfied that there were at least two occasions when the defendant committed an act of sexual exploitation upon A. I do not have to be satisfied of when, where or the order in which they occurred.

49. This brings me to the final element of the offence of persistent sexual exploitation and that is, regardless of when the alleged acts of sexual exploitation are said to have occurred, they occurred over a period of not less than three days and during which time A was under the age of 18 years

    The evidence of A relating to Count 1

50. A’s mother, H, married the defendant when A was about seven years old.  A did not know his biological father.[19] Following their marriage, the defendant and A’s mother had two children, M and K – A’s younger sisters. A stated that he would refer to his stepfather as ‘Dad’ throughout his life.[20]

    [19]   T19.

    [20]   T19.

51. A agreed that the defendant made it quite clear that he was homosexual during the defendant’s younger years.[21]  The family was open about the fact that A’s mother had been a lesbian and that the defendant had been a homosexual, and then they had become a heterosexual couple.[22]

    [21]   T74.

    [22]   T76.

52. The family lived in South Australia and moved to Queensland when A was about eight years old and M was just a baby. K was born in Queensland.

1. The family lived at various addresses in Queensland on the Sunshine Coast.  A attended Primary School and later High School in Queensland, leaving part way through year 10. Eventually, the family returned to South Australia in early 1999 when A was 15 and a half years old.[23] The family soon settled into a house in Trott Park.[24]

   [23]   T18.

   [24]   T19.

   First instances of sexual activity – uncharged sexual acts

2. A stated that the defendant first commenced sexually abusing him whilst the family was living in Queensland. His earliest recollection of sexual acts occurred in cars, whilst driving on public roads. He said that the defendant would expose his penis and get A to masturbate him whilst driving. A recalled that he was about eight or nine years old when this first happened.[25] He stated that it only ever occurred when he and the defendant were in the car, most often whilst the car was moving, but sometimes whilst parked somewhere, such as in a cemetery car park or in a State forest.

   [25]   T20.

3. A also stated that there were occasions when he had been touched and masturbated by the defendant. Further, there were also occasions when the defendant had caused A to perform oral sex on him, and vice versa.[26]

   [26]   T23.

4. With respect to the sequence, A said that the masturbation in the vehicle started first, at age eight or nine years, and continued until the family moved to Palmview, when A was aged 14 years. A said the oral sex commenced at age 11 or 12 years, following a ‘few years of masturbation’.[27] 

   [27]   T23.

   School bus incident

5. A recalled a specific incident when he was about 10 years of age, when he and the defendant were in the car travelling south along the Bruce Highway towards Brisbane. A said the defendant exposed himself and A was masturbating him when a school bus overtook them along the highway. A said that he did not want to masturbate the defendant and it was even more worrying because he believed a girl on the school bus could see what was taking place. 

   Kestrel Street bedroom incident

6. A recalled another specific incident in the bedroom of the main house they lived in at Kestrel Street, in Queensland, when A was about 11 years of age. As far as A recalled, this was the first incident that took place at any of the Queensland residences.  Only A and the defendant were present at the time.  The defendant was laying on the bed and A was masturbating him.  Occasionally, the defendant pushed A’s head down so that A was also performing oral sex upon the defendant. A said that this is the first time he can recall the defendant having ejaculated. Prior to this, A said that ejaculation was not something that he knew existed. He said that the defendant’s ejaculate was ‘greenie/yellow and just disgusting’.[28]

   [28]   T26.

7. A said that he remembered other sexual acts occurring between himself and the defendant, in other locations in the house, such as in the bathroom, lounge and dining rooms and in the shed.[29]

   [29]   T29.

   Kestrel Street lounge room incident

8. A recalled an incident in the lounge room when he was 11 or 12 years of age.  Again, only he and the defendant were present. He could not recall the lead-up, but said he was laying on his back on the floor in the lounge room with his head towards the door. The defendant was laying on top of him with his penis in A’s mouth. A said he was finding it quite difficult to breathe from the weight of the defendant and from the defendant’s testicles blocking his nose.  He recalled the defendant ejaculating in his mouth. A said that this incident stands out in his recollection because it was traumatic, as he does not like being confined.[30] In cross-examination, he recalled that the defendant would have weighed somewhere between 120-140 kg at the time.[31]

   [30]   T29.

   [31]   T219.

   Other incidents at Kestrel Street

9. A recalled an incident in the bathroom, where he masturbated the defendant until the defendant ejaculated in the basin. A was unable to place a time frame on this incident.

10. A further recalled an incident in the tool shed where he masturbated the defendant while they were both smoking a cigarette.[32] 

    [32]   T217.

11. He recalled that sexual activity in the form of masturbation took place in the other bedrooms in the house, but could not remember specific instances.[33]

    [33]   T30.

12. During cross-examination, A conceded that neither the bathroom incident nor the tool shed incident was mentioned by him in his statements to police.[34]

    [34]   T216.

13. A explained that the sexual activity in the car continued but to a lesser extent. His mother was initially unemployed, but when she found employment the sexual activity between A and the defendant increased inside the house.[35]

    [35]   T31.

    Palmview verandah incident

14. A stated that sexual activity, in the form of masturbation and oral sex, continued at the Palmview address after the family moved there to live with the defendant’s mother. A explained that the sexual activity progressed as the defendant began to penetrate his anus with his fingers.[36]

    [36]   T32.

15. A recalled an incident which took place in the late evening on the verandah when he was aged about 15 years. The defendant moved A’s chair closer to him and moved A to the front edge of his chair. A said the defendant then placed his fingers into his anus. A recalled some form of lubrication being used, but could not remember what it was. A said the penetration occurred ‘on and off for five minutes’.[37]

    [37]   T33.

16. A said that at one point his mother appeared at the back door whilst the defendant was penetrating A’s anus with his fingers. A stated that words were exchanged between the defendant and A’s mother, over what she had witnessed, but he could not remember exactly what was said. After the exchange A’s mother returned to bed.

17. A said that when the defendant was penetrating A’s anus with his fingers, A was only wearing a dressing gown with no underwear underneath.[38] A could not recall what position the dressing gown might have been in when his mother appeared, but thought that the situation would have looked suspicious. However, A stated that his mother never followed it up with him[39] and he did not raise any of the sexual abuse with her, which he put down to a combination of embarrassment, fear of his stepfather and not really knowing what to say to his mother.[40] He further stated he doubted if his mother would have believed him, and he was unsure of the repercussions, if his stepfather had become angry.[41]

    [38]   T34.

    [39]   T35.

    [40]   T36.

    [41]   T38.

18. Further to this incident, A remembered other instances of masturbation, oral sex and digital anal penetration occurring at the Palmview residence, but not any specific details.[42]

    [42]   T39.

    Sexual activity in South Australia – the charged conduct

19. A was 15 and a half years old when the family returned to South Australia in January/February of 1999. Upon returning to Adelaide, A obtained work as a factory hand and then secured a welding apprenticeship with the same company.  After a couple of years, he left that employment for work with a jewellery company, based in Woodcroft. He remained there for a brief time before securing an apprenticeship with another jeweller in the City, when aged about 18 or 19 years and where he remained for some three years.[43]

    [43]   T40.

20. A said that the sexual activity continued after the family moved into the Trott Park address. He could not recall the first instance of sexual activity at Trott Park, and he could not recall exactly how long after the family moved there before the sexual activity resumed, although he believed he was about 15 and a half years old.[44]

    [44]   T41.

21. A recalled that both mutual masturbation and mutual oral sex occurred at the Trott Park address. Between the period when A was 15 and a half to 18 years of age, A said that mutual masturbation occurred weekly.[45] In the same period, he said that the occurrences of mutual oral sex varied from weekly to fortnightly.  The sexual activity usually took place at night and most of the time when others were in the house.[46]

    [45]   T42.

    [46]   T43.

    Trott Park bedroom incident 1

22. A recalled a specific incident in his bedroom when he was working for the trailer company. A had gone to bed and was laying on his back, when the defendant entered his bedroom, got onto the bed, lifted A’s legs and inserted his penis into A’s anus. The defendant was also masturbating A at the same time.  The defendant ejaculated inside A’s anus and then left the bedroom.  A said that this was the first incident of penile anal intercourse, but that this type of sexual activity then occurred on an ongoing basis from weekly to monthly.[47]

    [47]   T45.

    Trott Park bedroom incident 2

23. A further recalled another specific incident which took place in the matrimonial bedroom, about a month or two after the first incident of penile anal intercourse.[48] A’s mother was sleeping on the lounge at the time and he was sleeping in the matrimonial bed with the defendant. He was laying on his side, under the covers and facing the door, which was closed. He said that the defendant inserted his penis into A’s anus and ejaculated.[49]

    [48]   T59.

    [49]   T46.

    Trott Park bedroom incident 3

24. A also recalled an incident when his mother attempted to enter the master bedroom, whilst the defendant and he were engaged in some sort of sexual activity.  He believed it was anal sex, but could not be certain. He recalled a conversation taking place between his mother and the defendant, as to why the bedroom door was locked, but he could not remember the details.[50] He said that this incident was significant in his memory, not because of what was happening in the bedroom so much, but because his mother had attempted to enter the bedroom whist he and the defendant were engaged in sexual activity.[51]

    [50]   T48.

    [51]   T49.

25. A explained that he could not recall any details of other incidents of penile anal intercourse, due to the frequency with which they were occurring. He said ‘it’s a bit like trying to isolate one time you went to the shop’.[52]

    [52]   T48.

    The granny flat

26. When A was 19 years of age, the defendant agreed that A could convert the shed into a workshop and bedroom, given the limited space for jewellery related tools inside the house. The defendant assisted with the building work and when the renovations/additions were complete, A moved into the ‘granny flat’ (as it became called in evidence), using it partly as a bedroom and partly as a jewellery workshop.[53] Once he relocated to the granny flat, A recalled that sexual activity occurred there.

    [53]   T49-51.

27. After turning 18 years of age, A stated that the main form of sexual activity engaged in was penile anal intercourse, with the defendant penetrating A. The frequency of penile anal intercourse increased and it usually occurred at night.[54]  A could not remember a time when the defendant did not ejaculate during penile anal intercourse. On these occasions, mutual masturbation and oral sex would also take place.[55]

    [54]   T52.

    [55]   T53.

    Count 2 – Rape

28. A person commits the crime of rape when that person engages in sexual intercourse with another person, without the consent of that other person, and knowing that the other person is not consenting or being recklessly indifferent as to whether the other person is consenting.

29. This legal definition of rape can be broken down into three different elements, each of which must be proved by the prosecution beyond reasonable doubt.

30. First, there is the physical element and then two elements relating to the state of mind of A and the defendant respectively.

31. Sexual intercourse includes the penetration of a person’s anus by another person’s penis.

32. The second element of the crime of rape relates to A’s state of mind at the time of the act of penile anal sexual intercourse. That is, the prosecution must prove beyond reasonable doubt that A was not consenting to sexual intercourse with the defendant on the occasion charged.

33. A person consents to sexual activity, such as sexual intercourse, if that person freely and voluntarily agrees to the sexual activity concerned. A person’s consent can be given verbally or expressed by actions, or both.

34. The final element of the offence of rape concerns the state of mind of the defendant. Here, the prosecution must prove that the defendant either knew that A was not consenting or was recklessly indifferent as to whether A was consenting to intercourse with him on the occasion charged.

35. A said that he was not consenting to the act of penile anal intercourse and the defendant would clearly have known that he was not consenting.

    The evidence of A relating to Count 2

36. A gave evidence that by the age of 20, the sexual activity was still kept secret from the rest of the family. A said that he always felt the sexual activity was wrong and that he never liked it.  He said that there were occasions when he spoke with the defendant about the activity telling him, ‘I don’t feel this is right. I don’t want it to happen anymore’.[56] A said that he tried to explain to the defendant why their sexual activity was wrong but the defendant would usually brush it aside or accepted what A was saying, only for the activity to later resume.[57]

    [56]   T53.

    [57]   T54

37. As A grew older, he said that he was becoming ‘pretty frustrated and angry about the situation’. He said that there were a few occasions where he resisted the sexual activity with the defendant but he could not sustain it.

38. A recalled a particular incident, when he was aged around 22 or 23 years, where he did try harder or more persistently to resist the defendant, but was physically unable to stop it from happening. 

39. This incident took place in the granny flat, at night, when A was already in bed. The defendant entered and sat on the edge of the bed.  A said that he wanted to go to sleep and the defendant’s presence was annoying him. The defendant then started touching A. Ultimately, the defendant got on top of A and attempted to insert his penis into A’s anus. A was laying face down on the bed and the defendant had a leg either side of A’s legs. A said he was resisting the defendant, but that after a while, he physically could no longer clench his buttocks together.  The defendant then penetrated A’s anus with his penis and ejaculated.[58] A recalled telling the defendant, ‘Go away. Fuck off. No. Get off me.’ After sexual intercourse ended A said the defendant asked him, ‘What? Are you mad at me now?’ before leaving the granny flat ‘in a huff’. A said that he was angry and that he ‘most certainly did not consent to the sexual activity’.[59]

    [58]   T54.

    [59]   T55.

40. A said that he could not recall if there were any other incidents of sexual activity that occurred after this incident.[60]

    [60]   T55.

41. A denied that the sexual activity between him and the defendant was confined to the period after he had turned 20 years of age and also confined to the period from when the ‘granny flat’ was almost completed and he had moved in.[61]

    [61]   T82.

42. A stated that has always found the defendant to be ‘repulsive’.[62] He denied that there was ever consensual sexual activity between him and the defendant. Indeed, he stated that every time sexual activity occurred, the defendant had either indecently assaulted or raped him.[63]

    [62]   T83.

    [63]   T87.

43. A said, that as far as he could recall, each time the defendant came into the ‘granny flat’ to engage in sexual activity (at least five times per year), he made it clear to the defendant that he was not consenting, by telling the defendant to stop what he was doing and to go away.[64] A said that, generally speaking, the defendant did not take any notice of his clear lack of consent.[65]

    [64]   T89.

    [65]   T101.

44. With respect to an occasion, when A admitted to attempting to engage in penile anal intercourse with the defendant by attempting to insert his penis into the defendant’s anus, A maintained that he was not consenting, but had attempted anal intercourse of the defendant only because he was told to do so by the defendant.[66] A denied that he had ever initiated any sexual activity with the defendant.[67]

    [66]   T90-91.

    [67]   T99.

45. A made it quite clear throughout his evidence that the defendant was a very controlling and dominating man. He likened the defendant’s controlling behaviour to a form of institutionalisation.[68] He said that he was fearful of the defendant and that he felt dominated by him throughout his entire life.[69]

    [68]   T122.

    [69]   T116.

46. A claimed that he was harshly disciplined by the defendant and was not permitted to have any friends or enjoy any independence. He was at pains to inform me that his freedom was severely restricted.[70] He said that all facets of his life were controlled by the defendant.

    [70]   T37-38, 116, 226, 236.

47. This evidence was also admitted pursuant to s 34P of the Evidence Act to place the alleged offending in context and to explain the nature of the relationship that existed between the defendant and A.

48. However, against this, A agreed that he was encouraged to obtain his driver’s licence by the defendant and that vehicles were purchased for him. A agreed that he travelled to Sydney with the defendant and his sister M, specifically to purchase a car for A, which was paid for by the defendant. He also accepted that the defendant paid for expensive photography and jewellery equipment for him, as well as gym equipment. Indeed, A accepted that the defendant paid for and assisted in the construction of the granny flat through its various stages of use, so that he was able to live there, away from the main house.

49. A also accepted that it had become a Sunday tradition for the defendant to be served breakfast in the matrimonial bed. A agreed that he would join the defendant in bed for breakfast, which his mother cooked and that his sisters would also attend the matrimonial bedroom for breakfast.

50. A number of photographs were produced to A by the defendant,[71] showing A in the matrimonial bed and being about the house, whilst only wearing his underpants, including one in which he is bearing his buttocks towards the camera, which was being operated by the defendant.[72]

    [71]   Exhibits D1-4.

    [72]   T121.

51. A also accepted that he and his wife, B, returned to live in the granny flat after only spending one day of their honeymoon in the Clare Valley, because they were ‘bored’.[73]

    [73]   T200.

52. Defence counsel submitted that A was determined, in his evidence, to paint a scenario of total control by the defendant in all facets of his life such that A submitted to whatever the defendant wanted. Counsel submitted that A always returned to this theme whenever he was presented with evidence which contradicted his isolation, control and domination, or which he knew he could not refute.

    Letter written by the defendant to A dated 10 September 2003

53. A produced a letter addressed to him from the defendant, dated 20 September 2003.[74] He was unable to explain any reason behind the receipt of this letter.[75]

    [74]   Exhibit P6.

    [75]   T73.

54. The defendant said the letter was a reference to a time when he was a ‘shit dad’ towards A. When questioned by the police at his home on 18 March 2013, the defendant explained the reason behind the letter in the following way:[76]

    [A] was so close to his grandmother, it wasn’t funny. I mean, to the point where on occasions I actually said to my wife that it borders on the unnatural, because he was so close to her. We moved to Queensland when he was around six or seven and not long after we got there he told us a whole series of things that she had done that counteracted our authority, rules that we had laid down and my wife was furious and she wrote to her mother and she said basically this is what A is saying, I am furious, I want to hear your side of the story cos I realise kids sometimes tell lies, embellish the truth, whatever but basically until I hear back and I hear your side of the story you’re not gonna hear from me because I’m so angry. And we didn’t for many, many years hear from her. A was so angry about this that he became the child from hell and he really did. He was unruly, he was disrespectful. You know he’d sort of scream in his mother’s face that ‘I hate you’ and so on. Anyway, I was only very young and thought I knew it all and rather than sympathise with him and get to the bottom of it, I just got angry and I made his life hell. It was constantly ‘stand in the corner, go to bed early’, it was terrible. And I said to him when he was older and I was able to look back and realise I handled that so badly, so, so badly. And when we moved here and he didn’t have friends or what have you and I tried to find common ground because I didn’t have a good relationship with my dad and when we moved back here I was trying to build something from that too. And I was older and I realised the mistakes I made and I tried so hard to make up for that and to do things with him and encourage him and yeah one day I just couldn’t put into words what I wanted to say to him and I wrote that letter.

    [76]   Exhibit P9 at pg15.

1. The defendant said in evidence that he wrote this letter to A to tell him ‘all the things I wished my father had said to me’ and ‘to avoid ending up with a relationship like I had with my father’.[77] He accepted that the sentiments expressed in this letter are contrary to his sexual behaviour towards A, for which he had no explanation. As the defendant stated, ‘I don’t understand myself how it happened or how I allowed it to happen’.[78]

   [77]   T408, 501.

   [78]   T411.

2. The defendant stated the he wrote the letter to A almost five years after returning to South Australia and was hoping to be the father he was not when A was younger. He stated that he wrote the letter so that A would understand his sincerity saying ‘it was written from the heart, it was genuine and written for genuine reasons’.[79] He strongly denied during cross-examination that the reference to ‘having shared more than most fathers and sons’ was a reference to sexual activity.[80]

   [79]   T502.

   [80]   T503.

3. In my view, the letter has no evidential value. It was not suggested that it contained any statement against interest by the defendant. It appeared to be a genuine, heartfelt letter, written by a stepfather to his stepson, expressing various views as to their relationship and bond. I accept the defendant’s explanations given to the police and in his evidence, for the reasons behind writing the letter to A. I have not used the letter against the defendant, as in my view, it has no probative value other than to confirm what was already established by the evidence.

   A’s marriage to B

4. A met his wife, B, in March 2007.  They met online, formed a relationship and married in November 2007.  The couple lived in the ‘granny flat’ for about 18 months from August 2007 before moving to their own house in Seaton in May 2009.  Whilst living at Trott Park, B fell pregnant and their daughter, L, was born on 29 September 2008.

5. B gave evidence that she rarely spent time alone with her husband whilst living at Trott Park[81] and was not given a key to access the main house. She claimed that there were numerous occasions when she had to knock on the back door of the main house to be let in so she could use the toilet.[82]

   [81]   T280.

   [82]   T278-280, 301-308.

6. After she and A moved into their Seaton home, B agreed that the defendant and his wife would visit them often, about once or twice a week. 

7. B also confirmed that her parents-in-law would look after L on Tuesday nights and Wednesdays, as well as on weekends, with the defendant generally collecting and then returning L.[83]

   [83]   T284.

8. A described his feelings towards the defendant, at this time, as indifferent, saying, ‘I guess I sort of learnt to compartmentalise things, so sort of had almost blocked [the sexual abuse] from my memory ... I got used to just acting normally’.[84]

   [84]   T59.

9. A explained that he continued to allow the defendant to visit them at his home at Seaton, because it was easier than having to justify to the rest of the family why he didn’t want to see him.[85]

   [85]   T61.

10. However, A explained that when he commenced working as a Correctional Services Officer and was dealing with prisoners in protective custody, who were mainly child sex offenders, he found that there was no relief from the memories of his own sexual abuse.[86]

    [86]   T60.

11. A claimed that the defendant was also very interested in his work with paedophiles in protective custody, and that it would often be a point of discussion.[87] In response to questioning during cross-examination as to why he would want to discuss such topics with the defendant, who had allegedly been committing sexual offences against him since the age of eight years, A said that ‘It’s a way of openly expressing my disgust at people who exhibit behaviour the same as his to my family, without actually having to say he’s one of them.’[88]

    [87]   T128.

    [88]   T129.

12. B confirmed that while A was working at Yatala Prison, she noticed a change in his behaviour in that ‘he became cold and distant and was moody ... he was angry and agitated’.[89]

    [89]   T284.

13. A put his moods down to the constant reminder of his own sexual abuse rather than the prison setting in which he was working at the time, or the prisoners he was having to deal with.

    The ‘confrontation’ of 25 February 2011

14. As a result of A becoming ‘grumpy and aggressive’ over time, by his memories being revived through his work, a confrontation with the defendant occurred at A’s and B’s Seaton home. 

15. A had only recently disclosed the sexual abuse to B at the time of the confrontation.[90]

    [90]   T135.

16. I have not used A’s disclosure to his wife or subsequently to his own mother, as evidence tending to buttress his credibility as a witness, as permitted by s 34M(4)(a)(ii) of the Evidence Act. In my view, the disclosure was made almost five years after the last alleged sexual act and was not specific enough to be related to either count charged.[91] The evidence is useful, however, as revealing when A’s allegations first came to light and so explains much of the subsequent interaction between A and his family, particularly the defendant.[92]

    [91]   See R v Maiolo [No 2] (2013) 117 SASR 1.

    [92] Per s34M (4)(a)(i) of the Evidence Act 1921.

17. A recalled that at some point in time all contact between his mother and grandmother ceased, about which he was very upset. He understood contact had ceased due to his relationship with his grandmother and how that contrasted with the discipline being enforced by the defendant. A agreed that before the confrontation, he had met with his maternal grandmother, JM, with whom he had shared a very close relationship as a young child and had not seen for many years.

18. Defence counsel suggested to A that he had spoken with his maternal grandmother, who explained to A, in some detail, the reasons behind the break in contact between her and her own daughter, dating back to 1991. Counsel suggested that A believed what JM was saying and that this made him angry.  Counsel put to A that A went to his parents’ house and confronted his mother. It was put that the defendant then telephoned A, and that A abused him about what he had been told by A’s grandmother. This, it was further put, led to the defendant and his wife attending at A’s house the following day, during which the confrontation unfolded. Defence counsel further put that the initial conversation at the confrontation centred on the issue of A’s maternal grandmother. A refuted all of Counsel’s suggestions, stating that he already knew everything his grandmother had told him, so had no reason to be angry. A stated that he did not recall confronting his mother about this, nor that this was even a topic of conversation on the day of the confrontation.[93]

    [93]   T254-256.

19. A said that the confrontation occurred, for the most part, on the back verandah. A said he told the defendant ‘You need to tell mum or I will’. A claimed that the defendant looked at B, to which A said, ‘She knows’. A said that the defendant then invited him to the back of the garden for a private conversation, by asking, ‘Can we just talk about it?  Come down here’. A said he responded to this invitation by saying, ‘Nah, I’m not going anywhere, stay here’.[94] A recalled that the defendant was crying and emotional. A claimed the defendant spoke to his wife telling her, ‘he [A] was 17’, to which A responded, ‘I was a lot younger than that. Try about eight’. The defendant is said to have retorted, ‘No, you weren’t that young.  Maybe 15’.[95]

    [94]   T63.

    [95]   T64.

20. A recalled that his mother was crying, but she did not say anything ‘as she’s not good with confrontation’.  A said that his wife, B, was angry and banging her hands on the table. He said that B told the defendant, ‘he [A] was just a kid.  How could you do that?’[96] A thought that the defendant may have said to B, ‘I’m sorry’.

    [96]   T66.

21. Despite initially refusing, A said that he agreed to go to the back of the garden with the defendant.  A said that the defendant agreed that he would tell his wife (A’s mother) on their way home. A responded by saying ‘Well, if you don’t do it, I’m happy to tell her now’.[97] A said the defendant then left with his mother.

    [97]   T65.

22. A said that he was quite upset and very shaken during the confrontation with the defendant. A said that he has always found it difficult to confront or speak to the defendant and was still fearful of him, just as he was as a child.

23. A stated that in the period immediately following the confrontation he would see the defendant once every month or couple of months.  He said that generally his mother and one of his sisters would come to his home at Seaton, and if the defendant came he wouldn’t stay long.  A explained that the visits wound down to a point where he and his wife simply stopped seeing them.[98]

    [98]   T72.

24. B recalled the visit at which the confrontation took place. She said that prior to the visit both she and A had been growing distant from the rest of the family.  There were text messages from her father-in-law to A, which she thought prompted the visit. She believed her parents-in-law wanted to know if there was anything wrong.[99]

    [99]   T286.

25. B agreed that, by this time, A had already made disclosures to her about being sexually abused by the defendant, dating back to when A was a child.[100]

    [100] T287.

26. Upon arrival of her parents-in-law, the four sat in the lounge room.  According to B, there was no discussion regarding what was to be talked about and ‘it just unfolded’. B stated the defendant raised the issue of A’s grandmother, JM, as ‘they assumed that that was what our issue was’.[101]

    [101] T288, 325.

27. B stated that after about 20 minutes of conversation regarding A’s grandmother, there was tension in the room. She said the defendant became anxious and panicky and said, ‘This is not what it’s about, is it?’ to which A responded, ‘No, it’s not. You know exactly what this is about’.[102] 

    [102] T288.

28. B said that the defendant tried to convince A to go outside and speak with him alone.  B said that eventually the defendant and A went outside and she followed them.  She could not remember whether her mother-in-law was also outside at this time.[103] However, she recalled her mother-in-law sitting in the lounge room, quietly, during the earlier exchange and that she appeared bewildered, as though she did not understand what her son was referring to when the confrontation escalated.[104]

    [103] T289.

    [104] T328.

29. B said when A and the defendant went outside, she knew that A was going to approach the issue of his sexual abuse.  She stood behind A, rubbing his back, as the defendant paced back and forth around A.

30. A repeated, ‘No, you know exactly what this is about’, to which the defendant responded, ‘What is it then?’ A pointed to B and said ‘She knows, she knows everything’.

31. B said that the defendant looked at her and said, ‘Right, what’s your stance on this then?’ to which she replied, ‘I need to support my husband’. B did not recall what was said after that, but she recalled that the defendant tried to convince A to go to the back of the yard.[105] After initially holding his ground, she said that A ultimately went to the back of the yard with the defendant. 

    [105] T290.

32. B said she entered the house and spoke to her mother-in-law, telling her ‘I’m sorry, don’t worry, [A’s] got something he needs to say’.[106] B claimed that her mother-in-law appeared to be very upset.

    [106] T290, 330.

33. B agreed that no one said anything in the presence of the defendant’s wife, such that she would have understood what was going on.[107]

    [107] T332.

34. B said that she remained inside for a short time before A and the defendant re-entered the house. She said that the defendant appeared to be storming past. He had tears in his eyes and said to her, ‘Please don’t hate me’.[108] B said that she then gave the defendant a hug, ‘which I regret for obvious reasons, but ... when I see someone in pain, emotional pain, that’s what you do’.[109]  Nothing further was said and the defendant and his wife then left together.

    [108] T291.

    [109] T291.

35. The defendant said in relation to this meeting, that he recalled he and his wife attending at A’s and B’s Seaton home.[110] The previous day A had attended at their home and had spoken to his mother (H) about re-engaging with his grandmother, JM. He said that when driving to Seaton he had absolutely no idea of the allegations that were to come.[111]  When he and H arrived, the four of them spoke about H’s mother in the lounge room, before A said ‘I’ve told B everything’.[112] The defendant said that he didn’t know what A was talking about and so asked ‘What do you mean?’ He said A ‘gave him a nasty stare’ and said ‘You know what I’m talking about’. The defendant said that A never mentioned what he was talking about. He then asked A, ‘Can we talk outside?’ By this stage the defendant said that he thought A was talking about the inappropriate relationship they had engaged in when A was an adult.[113] A’s response to the defendant’s invitation to speak to him outside was, ‘No, whatever you’ve got to say, you can say it here’. The defendant replied to A by saying, ‘No, I want to talk to you outside first’.

    [110] T449.

    [111] T450.

    [112] Ibid.

    [113] T451.

36. He and A then went outside, to the very back of the garden. H and B also came out and stood under the verandah, about nine metres away. The defendant asked A, ‘Are we talking about what I think we’re talking about?’ to which A replied, ‘Yes, I told B everything and I expect you to do the same to mum’. This conversation only lasted some 30 seconds. The defendant said that H looked confused and B appeared nervous. He looked at B and said, ‘You probably hate me now’.[114] B then gave him a hug before he and H left to go home. As they were walking down the corridor H whispered ‘What is going on?’ and he told her, ‘I’ll tell you in a minute’.[115]

    [114] T452.

    [115] T453.

37. The defendant said that there was no mention of any age or any specific allegations made by either A or B. When they left he said that H still had no idea what was going on.[116]

    [116] T454-455.

38. The defendant denied that he knew A’s allegations related to sexual acts when A was a child.[117]

    [117] T485.

39. Whilst driving home, the defendant said that he stopped the car at the Glenelg North beach and told H that he had had an inappropriate relationship with her son, A.[118] He said that H was in tears most of the time and that all he could say to her was ‘sorry’. He accepted that he wasn’t forthcoming, in terms of details, as he didn’t think H needed to know at that time.

    [118] T454.

    The defendant’s visit of 26 February 2011

40. A said that the defendant returned to his Seaton home the very next morning. The defendant arrived alone and his visit was unexpected. A’s wife was present.  The defendant was saying ‘What do we have to do to move on? How can we fix this?’ The defendant said that he didn’t want to tell M and K, as it would be too upsetting for them. B repeated what she had said the day before and again the defendant said ‘I’m sorry’. A said that the defendant was crying. A recalled that B was glaring at the defendant, who suddenly stopped crying and looked back at B and told her, ‘You thought I was the nice guy’.[119] The defendant also asked A not to go to the police, but he did not explain why. A responded by saying ‘I don’t want you to go to gaol because I don’t want to have to deal with you at work as well’.[120] At some point B was pressing the defendant for an explanation, as to why the sexual abuse happened and the defendant replied, ‘I wanted to’ or ‘it suited me’.[121]

    [119] T67.

    [120] T68.

    [121] T68.

41. B confirmed that the defendant unexpectedly arrived at their home the morning after the confrontation. She said she was walking around saying ‘I’m just shocked, I don’t know what to think’. The defendant said ‘I thought you knew’, with B replying ‘No, I didn’t know’. B said that the defendant kept saying, ‘I want to move forward. How are we going to move forward from this?’[122]

    [122] T292.

42. The defendant also told them that he had taken his wife to the beach and told her that ‘something had happened’ and that his wife was very upset.[123]

    [123] T293.

43. B said that she felt she had to speak for A, as A did not say a word. She said to the defendant, ‘Why did you do it?  We just need to understand why. He was a kid.  He’s your son. You’re not meant to do that.  He had nowhere to go, he was isolated, he had no friends’.[124]  She said that the defendant burst into tears several times. In response, he said ‘Sorry’ and ‘Well, I guess it suited me’.[125]

    [124] T294.

    [125] T294.

44. B agreed that no one raised any specific or particular allegation with the defendant, but that A’s young age was discussed in relation to the abuse.[126]

    [126] T333-334.  

45. However, B further agreed that in her police statement, of 29 November 2012, she made no mention of A’s age ever being discussed[127] and that she only recalled this happening the afternoon before giving her evidence, whilst waiting to be called as a witness.[128]

    [127] T336.

    [128] T337.

46. B recalled that the defendant suddenly stopped crying and looked at her saying, ‘You thought I was the nice guy, didn’t you?’  She said at that point she felt a veil had come off the defendant.[129]

    [129] T295.

47. B said that throughout the entire conversation, the defendant kept saying ‘Let’s move forward.  How are we going to move on?  I don’t think we should tell the girls because you’ll ruin their lives’.[130]

    [130] T295.

48. B stated that she had always got on well with her parents-in-law, until she discovered what the defendant did to her husband.[131]

    [131] T317.       

49. B explained that she was concerned for her daughter, L, who had a very close relationship with A’s sisters. As such, she was agreeable to allowing L to continue to visit the defendant’s house at Trott Park.[132] B said that given past comments by the defendant, she accepted that he was homosexual. As such, she had not considered it inappropriate for the defendant to continue caring for L.[133]

    [132] T296.

    [133] T296.

50. B said that, at this time, the thought of getting the police involved had not even crossed her mind.

51. The defendant stated that on the morning following the confrontation he arrived at his stepson’s Seaton home.[134] He agreed that when attending there he was confused and worried about what had been raised the previous day.[135]

    [134] T455.

    [135] T485.

52. He was not sure what was happening concerning L’s visits. He said that he was invited in and for the most part A didn’t say anything, as B spent 15 minutes ‘ranting and raving’. He said that he thought A had told B about their adult relationship and that was why B was so angry.[136]

    [136] T457.

53. He said that nothing specific concerning A’s age or any details of the sexual allegations were raised apart from B saying ‘How could you do it? He was just a kid’, to which he responded, ‘Well, he was hardly a kid’.[137] He denied ever saying to B, ‘You thought I was a nice guy’.[138] He acknowledged that it would have been a true statement, but denied saying it. The conversation then changed to how they were going to move forward.[139]

    [137] T456.

    [138] T456-457.

    [139] T456.

54. He said the visit lasted about an hour and he did not leave with L. He was told to collect L on Tuesday as normal.[140]

    [140] T457-458.

55. The defendant denied that there was any mention of A’s age at the time of the alleged abuse, on either of the two days he visited A and B. He said, ‘not only was that not raised, technically it wasn’t even mentioned that [A] was sexually abused’.[141] He accepted that it was clear they were talking about sexual activity, but it was not being put as abuse.[142]

    [141] T486.

    [142] Ibid.        

    A’s mother’s visit of 27 February 2011

56. B agreed that her mother-in-law attended at their Seaton home the day after the defendant’s visit.[143]

    [143] T340.

57. B stated that she vaguely recalled that her mother-in-law said that the defendant told her and that she was sorry. It did not appear, however, that she knew the full extent of the abuse, so A told her about the allegations.[144]

    [144] T343-344.

1. Remarkably, A said he had no recollection of this visit by his mother.[145] A did agree that at a subsequent time he told his mother, in some detail, the extent of the sexual abuse, but it was not this occasion.[146]

   [145] T261.

   [146] T243.

2. The defendant said that on the Sunday after the confrontation, H announced that she was going to visit A and B alone.[147] When H returned home the defendant said that she told him, ‘A is saying it happened when he was about eight’ and that this was the first time he actually became aware of the allegation of sexual abuse occurring when A was of that age.[148] He said that he was dumbfounded and in a state of disbelief and shock and then he became angry.[149]

   [147] T458.

   [148] T459.

   [149] Ibid, T490-491.

   Life goes on

3. A claimed that his relationship with the defendant changed dramatically after the confrontation in February 2011.[150] This included his wife B, who he described as being ‘civil’ towards the defendant in his presence, but who would then ‘unleash with a lot of abuse’ when he left.[151]

   [150] T140.

   [151] T142.

4. A stated, that in the period immediately following the confrontation, he would see the defendant once every month or couple of months.  He said generally it was his mother and one of his sisters who would come to the house at Seaton, and if the defendant came, he would not stay long.  A explained that it wound down to a point where he and his wife simply stopped seeing them. A said, ‘I didn’t want to see them anymore’.[152]

   [152] T72.

5. Despite A stating that he confronted the defendant over his sexual abuse as a child and beyond, he agreed that he thereafter continued to allow the defendant to collect L during the week and on weekends so that she could stay with the defendant. This was despite believing the defendant to be a paedophile and a sexual predator of children. A justified allowing his daughter to be alone with the defendant on the basis that the defendant was homosexual and as such would not be interested in sexually abusing his grand-daughter.

6. A agreed that he would see the defendant when the defendant collected and returned L and that they would talk to each other and engage in normal conversations together.[153] 

   [153] T128.

7. A also agreed that he contacted the defendant to seek advice from him after his contract as a prison guard was not renewed. He also agreed that he then visited the defendant at the defendant’s place of employment on his way home from Yatala Prison.[154] A explained his conduct by stating, ‘like I said, essentially he was still the only father I’ve ever had. I don’t consider him a stepfather, I consider him a father, even now, and if I did, in fact call him, it was because he was the person that I would turn to when I had an issue my entire life. I can’t turn to my mum because my mum is essentially useless’.[155]

   [154] T147-148.

   [155] T150. See also T161.

8. A also agreed that the defendant continued to assist him and B financially and with other life matters, such as helping move houses. A also agreed that they continued to visit each other. A said, however, that his attitude towards the defendant, after the confrontation, was as a result of having been conditioned over so many years, such that the defendant was still exercising control over him and further, that he did not want to lose the rest of his family.[156]

   [156] T163-164.

9. During cross-examination, A was confronted with a photograph of himself at the defendant’s home, assisting in some gyprock work, on 27 August 2011.[157] The defendant said that he had mentioned to A that he was doing some work on the house when A arrived unannounced, with L, on the weekend to help out.[158] A reluctantly agreed that this was the case, even though at that time he said he did not want to have anything to do with the defendant.

   [157] Exhibit D4.

   [158] T443.

10. B agreed that after the confrontation there was a period of ‘coldness and distance’ between A and B and the defendant. She denied that their relationship ever returned to being completely normal, although she accepted that some sort of normality appeared on the surface.[159] She said that it was an extremely confusing time and she did not know how to act towards the defendant or what to do.[160]

    [159] T344-346.

    [160] T345.

11. However, B agreed that greetings continued as before. The defendant was invited into their house, they each attended for visits at each other’s homes, e-mails which she sent to the defendant were signed off by her, with ‘love, hugs and kisses’, the defendant continued to assist them financially and in other ways, such as helping them move houses and cleaning up and also, the defendant and his wife continued to look after L.

12. The defendant said that he thought of confronting A in relation to the false allegations, but because A is a volatile person he decided to wait until an appropriate moment to do so.[161] He stated that in the weeks following the confrontation, there was always someone at A’s home when he arrived to collect  L or when he dropped her off and so there was never an appropriate time to confront A. He did agree that both A and B were ‘cold’ towards him for a couple of weeks following the confrontation but after that, A acted perfectly normally towards him.[162] He assumed that A had told B the ‘truth’, because everything returned to normal.[163] He said that thereafter, both A and B continued to hug and kiss him upon his arrival at their Seaton home, until 25 August 2012.[164] 

    [161] T459.

    [162] T460-461.

    [163] T464.

    [164] T462-463.

13. He said that the topic of sexual abuse was never raised again by anyone.[165]

    [165] T463.

14. The defendant recalled that about three months after the initial confrontation, A called him seeking advice, having lost his job at Yatala. He advised A to seek employment with his previous employer and A then came to see him at work that afternoon.

15. The defendant said that on 25 August 2012 he went to drop L at her home. He said that he felt he had walked in on an argument between A and B.[166] B was cold and abrupt, so he did not stay for very long. After he arrived home he sent a text message to A to see if everything was alright.[167] About six hours later, he received a reply text saying they were fine. He then sent another text to A, saying, ‘Well, obviously you’re not fine, is there anything I can do?’ A replied saying, ‘No, I basically don’t want you to do anything and I no longer want you coming to the house without an invitation and if you do I will call the police and I’m sure you don’t want that to upset L’. He sent another text to A saying, ‘What the hell, what’s going on?’ to which A replied, ‘Well, as you know, I have issues with you and I just don’t want anything to do with you any more’. The defendant said this all came out of the blue, as he assumed that B had been told the truth about his consensual sexual relationship with A and that everybody had moved on from everything.[168] The defendant said that he showed his wife the text messages and a ‘flaming row’ ensued, as his wife thought that she was not going to be able to see her granddaughter any more. Contact between the defendant and A and B ended after that point.[169]

    [166] T466.

    [167] T467.

    [168] T467.

    [169] T470.

16. The defendant’s wife, H, said that the Sunday before the confrontation, A went to see his grandmother, who told him ‘a pack of lies about having tried to send him letters’.[170] She said that A visited the following Thursday whilst the defendant was at work. She said A was very angry at the defendant. H tried to explain things to A but he was extremely angry and ‘he wasn’t having it’.[171] H said there was no mention by A of any sexual abuse at the hands of the defendant of her son.[172] 

    [170] T574.

    [171] T580.

    [172] T576.

17. The following day H and the defendant went to see A at his home in Seaton, in order to smooth things over and explain the situation involving JM.[173]

    [173] Ibid.

18. She and the defendant attended after work on the Friday evening and sat in the lounge room over a cup of coffee.[174] She recalled A saying, ‘B knows everything’. The defendant said to A, ‘Can I see you for a moment down the back?’ A argued for a couple of minutes against doing so and then agreed. H said she did not hear any of the conversation between her husband and son but knew ‘it wasn’t going to be good’. The defendant and A were at the back of the yard for a couple of minutes before the defendant said to her ‘Let’s go now’.[175] H said that she was confused. They started to drive home when she asked the defendant ‘So what’s all this about’. The defendant responded ‘You’re going to hate me ... I touched him’.[176]

    [174] T580.

    [175] T580.

    [176] T581.

19. H said that she wanted to get out of the car immediately upon hearing what the defendant had said. Instead they drove to a beach, which was nearby. There the defendant said ‘I’m sorry’. At that point H said that she understood that there had been some sort of sexual misconduct, but she did not have any understanding of how old A might have been[177] and asked the defendant ‘How old was he?’ to which the defendant replied, ‘I don’t know’. H then asked the defendant whether it had happened in Queensland, to which he responded by saying that it definitely only happened in South Australia and that they had been living here for a while. H stated the defendant never mentioned an age when he had sex with A. She said that she was furious with the defendant.[178]

    [177] T582.

    [178] T583.

20. H did not remember anyone crying at the confrontation, nor B comforting her while the defendant and A were at the back of the garden.[179] She confirmed that she had no inkling of any untoward behaviour between the defendant and A, at the time of the confrontation. She said that it was not until the defendant told her in the car, that she became aware of the allegations.[180]

    [179] T614.

    [180] T615.

21. H said that she decided to visit A and B on the following Sunday, on her own, as she wanted to hear A’s side of the story.[181]

    [181] T583.

22. She said that B did most of the talking, while A sat quietly.[182] A said, ‘Mum doesn’t need details’. B mentioned two ages, both of which were young and which made H very upset.

    [182] T584.

23. When H later relayed what she had been told by B to her husband, he responded by saying, ‘That’s completely untrue’.[183]

    [183] T585.

24. H said that the defendant has never admitted engaging in sexual activity with A, when A was under the age of 18 years[184], but has admitted as much when A was over 18 years of age.[185]  She said that she never suspected anything of a sexual nature occurring between her husband and son, at any time.[186]

    [184] T584, 603.

    [185] T585.

    [186] T610.

25. Within two or three weeks of the confrontation H said that life continued on, as if nothing had happened, although she remained angry.[187] H acknowledged that she simply let life go on, rather than actively seeking out the truth.[188]

    [187] T586.

    [188] T601.

26. As far as ascertaining which of the two scenarios with which she was faced was true, she said, ‘I got the answer the last time I seen A. I’m absolutely convinced after the last time I seen A’.[189] She said that she went to see A, with her daughter K, in the first week of December 2012.[190] A started to describe an event in graphic detail to her, with a very straight face and no hint of emotion. The event he was describing was when he was a boy, but when he finished telling her about it, which she said was the first time she had heard anything directly from A’s mouth, she believed he was lying.[191] She felt that A’s behaviour had left a doubt in her mind as to the truth of the allegations, as he was still happy for the defendant to see L all the time.[192]

    [189] T587.

    [190] Ibid.

    [191] Ibid.

    [192] T600.

27. That was the last contact she had with her son. A later sent her husband a text message saying that B had decided that H and her daughters were no longer welcome at their home.

28. H acknowledged that the marital relationship had naturally become extremely strained, as she felt betrayed by her husband. She said that she wanted a divorce from her husband but had to think about her daughters and ultimately came to the conclusion that A was lying. She said, ‘I was hoping we could just move on and forget the whole thing’.[193]

    [193] T592.

29. She agreed that A offered that she could live with A and B, if she decided to leave the defendant.[194] Instead, H said she chose to stay with her husband.[195] She said that this was likely the contributing factor to why A and B ceased to have anything further to do with her.[196]

    [194] T593.

    [195] T595.

    [196] T596.

    E-mail sent by the defendant to A dated 29 August 2012

30. The defendant sent the following e-mail to A on 19 August 2012.

    Morning,

    Not convinced the answer to my last question to you was a no as it took you a while to text that back. I hope it is true for obvious reasons but more so for what I’m about to tell you. If it’s not true and you have put in a complaint I beg you to with draw it.

    Things between Mum and I kind of came to a head last night. We have decided that we will probably separate once Aunty J has gone home and the dust settles from their visit. Between now and then we are just going to go through the motions and make it look like everything is ok. We will tell the girls then and we will tell them basically that the marriage just died some time ago and it’s just better for everyone if things just go forward.  Once this happens Mum and the girls will probably need you and B more than ever. (That’s the main reason I don’t think they should know the truth. It would make things very awkward and you never know with some people. They may even blame you somehow! Better for all of you if they don’t know.) Once all this takes place, and look, we haven’t gone into any details of how it will work, they you would only have to deal with me at the occasional family do and I would keep my distance anyway. I guess what I’m saying is Mum and I splitting up will be really hard on the whole family included Nan and Aunty Judith and so on without making it worse. So if you can be patient for a couple of months I will be out of your hair and in the mean time I will keep a respectful distance. At this stage I wouldn’t mention to Mum that you know. It will just start her crying.

    Could you at least email me back and let me know what you think.

    Thanx [sic]

31. The defendant explained that the phrase, ‘That’s the reason why I don’t think they [M and K] should know the truth’, in his e-mail was a reference to him and his wife telling A’s sisters that he and H had grown apart, as an explanation for their proposed separation, although the truth was that the separation was caused by the sexual allegations being made by A.[197]

    [197] T509.

    E-mail correspondence between A and the defendant in November 2012

32. On 8 November 2012, A sent the defendant the following e-mail:

    I don’t want you to call me and I don’t want to see you right now but I do want to understand and get answers. I don’t think the family will ever be as it was but I do want to move forward. How can someone manipulate and abuse a young boy and ruin his self worth and confidence? How can you get a child to masturbate you? How can you get a child to have oral sex with you? How can you have sex with a teenager or even adult. But most of all regardless of any of that your son. And that’s not even bringing the control, isolation from friends and family and the destroying of my confidence and loss of who I am into it. I don’t want sorry because I’m not able to forgive but I want to understand why you did it? If you want me to move forward I need to know why? Is it something that happened to you? Is it issues from your childhood or with your parents? I just want to know why I don’t understand.

33. The defendant sent the following e-mail to A on 18 November 2012:

    Dear [A],

    Sorry it has taken me so long to answer you. I have tried many times to sit down and do this but every time I try I can’t find the words. Bottom line is I can’t answer you. I have asked myself many times why I crossed the line and I don’t know. I started seeing a psychologist a few weeks ago because I need answers for myself. All I can say is if I get those answers I will tell you. I do suspect it has something to do with my own childhood but at this stage I’m only guessing. All I can say is that I do except responsibility for any unhappiness you suffered growing up and tell you how truly sorry I am. It was only when Bree came along and I saw how happy you were that I realised what I had done. Since then I have tried so hard to be the father you should have had. If I could rewind your life and do it again right I would in a heartbeat but I can’t. I know you and Bree don’t want anything to do with me again and I understand. I hate it but I understand. I miss you all but realise that’s how it must be. I do want you all to move on and be happy. Just remember that if ever need me for anything I will always be here for you all.

    Love you always,

    [Defendant]

34. The prosecution placed much emphasis on this e-mail correspondence, strongly submitting that the defendant’s reply or response, amounted to an admission by him to having sexually abused A when A was a child. 

35. The defendant said that receiving A’s e-mail of 8 November 2012 was the first time he had understood the specific detail of the allegations being made by A. Previously his wife had not gone into any detail.[198] He sent an e-mail to A, dated 18 November 2012, and said that he did not respond to the allegations regarding sexual abuse when A was under 18 years. He said that he believed there could be a way of diffusing the situation by accepting responsibility for what had actually happened between them as adults.[199]

    [198] T473.

    [199] T476-477.

36. The defendant claimed that in his e-mail he was trying to take ‘full responsibility for crossing the line’, in order to take the pressure off A. He said, ‘I was referring to the fact that the reason I was so close to him, and he probably felt smothered at times, was because of my own childhood’.[200] He accepted that he was a ‘shit father’ in Queensland but that had changed after the move back to South Australia,[201] when he tried to be a better father to A. It was only after A formed a relationship with B, that he realised the ‘awful mistake’ he had made in entering into a sexual relationship with A.[202]

    [200] T493.

    [201] T494.

    [202] T496.

37. The defendant strongly denied that his e-mail was a direct response to the allegations contained within the e-mail sent to him by A.[203] He claimed that he did not want to react to false child sex allegations so as not to upset A further. He claimed the e-mail simply acknowledged responsibility for what actually happened, namely an inappropriate adult sexual relationship with his stepson.[204]

    [203] T497-500.

    [204] T500.

38. I was not impressed with the defendant’s evidence for sending the e-mail to A. When he was pressed to explain what various sentences within the e-mail were meant to convey to A, he simply stated it was not intended to be as it read. He did acknowledge that the e-mail did not read as clearly as he intended to express himself to his stepson and for that reason it could easily be misinterpreted. He maintained, however, that it was not his intention to convey an admission of guilt to his stepson for years of sexual exploitation of him as a child.

    A’s report of the allegations to the police in November 2012

39. A stated that he reached a point of personal strength and decided to cease all contact with his family, in about August 2012.

40. B said there was a point where contact ended between the families, as a result of A and B consulting a psychologist. B said that a short time later, she and A discussed reporting the matter to police. She said that discussions occurred over a number of months before A finally made his decision, at which time she called the Sexual Crime Investigation Branch of the Police Department on A’s behalf.[205] During cross- examination, B stated that the first mention of the police being contacted occurred about a month prior to the telephone call she made to the Sexual Crime Investigation Branch on 9 November 2011.[206] Up to that time she said that she did not want to push her husband into doing anything.[207]

    [205] T299.

    [206] T352.

    [207] T352.

1. Both A and B agreed that in December 2012, A sent a text message to the defendant, asking him to inform A’s mother and A’s sisters, that they were no longer welcome at their house, as they had not shown A enough support.

   Police interview of the defendant

2. As a result of A providing the police with a statement against the defendant, two police officers attended at the defendant’s home on the evening of 18 March 2013 and interviewed the defendant over A’s allegations.[208] 

   [208] Exbibit P9.

3. In his police interview the defendant stated:

   ·that he was aware of what A had said because he knew what A had told others;[209]

   [209]  Ibid p4.

   ·denied that when A was under 16 years and nine months of age he would enter A’s room at night and have anal sex with A;[210]

   ·when it was put to him he anally raped A, when A was 23 years of age in about 2006, in the granny flat after A had a struggle with him, he replied ‘If you know my son you couldn’t make him do anything he didn’t want to do and I certainly have never raped him or struggled with him, not in regard to a sexual matter’;[211]

   ·that he was appalled that A would make allegations of sexual abuse against him either in Queensland or South Australia;[212]

   ·that he was not completely denying A’s allegations – ‘when A was older and I don’t know to be honest ... but definitely late teens, early 20s, he and I did some things I am extremely ashamed of and I wish never happened and I suspect he feels the same way’;[213]

   ·that he engaged in consensual sexual activity with A many times when A was an adult;[214]

   ·A formed a relationship with B and ‘by that stage anything that happened was over with. I thought well that’s dealt with, we’ve moved on and we had a great relationship and then all of a sudden out of nowhere this happened’;[215]

   ·denied telling B he had consensual sex with A when A was 15 years of age;[216]

   ·in relation to the e-mail dated 18 November 2012 in which he stated to A, ‘I crossed the line’, he explained that was a reference to when A was an adult, the defendant said, ‘I crossed the line. My marriage was at a bad stage, he was at a bad stage in his life, he was having trouble with his career and things just happened’;[217]

   ·denied that anything happened when A was a child;[218] and

   ·that what A was alleging about being raped in the granny flat was ‘an absolute out and out lie’.[219]

   [210] Ibid p6.

   [211] Ibid p7.

   [212] Ibid p8.

   [213] Ibid at p9.

   [214] Ibid pp12, 16.

   [215] Ibid p10.

   [216] Ibid p11.

   [217] Ibid p13.

   [218] Ibid p12.

   [219] Ibid p19.

4. I am entitled to have regard to what the defendant said to the police, when considering whether or not the prosecution has proved the charges against him beyond reasonable doubt, even though the defendant did not say anything to the police which was inculpatory but rather made exculpatory statements.[220] 

   [220] See R v M (1994) 62 SASR 364; Mule v R (2005) 221 ALR 85; Barry v Police (2009) 197 A Crim R 445; Spence v Demasi (1988) 48 SASR 538.

5. The defendant was briefly cross-examined on his interview with the police. He agreed that he said to the police ‘I reckon [A] was 18’ in relation to the consensual sexual relationship.[221] In evidence he has stated that A was older than that - ‘at least over 21’. The defendant put this discrepancy down to remembering that A had his 18^th birthday in the garage and he had not remembered when the work on the granny flat commenced, until he read A’s statement to police.[222]

   [221] T523.

   [222] T523-524.

   The defendant’s evidence

6. The defendant and his wife generally presented well as witnesses. They answered questions in a straightforward and forthright manner. I said generally, because the defendant did not impress me when being questioned over the e-mail he sent to A and I have already dealt with the defendant’s evidence relating to this.[223]

   [223] See [195] – [201].

7. The defendant first met his wife H in 1986, at age 20 years, and they later married. Before marrying each other A considered himself to be homosexual and H was lesbian/bisexual. He and H went on to have two children, M and K, together. A legally took the defendant’s surname when the family moved back to South Australia from Queensland, although A had been using his surname from when A first attended school in Queensland. A had also changed his middle name from S to D, the defendant’s father’s name.[224]

   [224] T369-370.

8. The family moved to Queensland in 1991. The defendant did not work at all in Queensland. H suffered from postnatal depression following the birth of K and later returned to work, whilst he stayed home as a house husband.[225] He shared an interest in breeding cats with his mother, who was living in Queensland.[226]

   [225] T379.

   [226] T379.

9. After marrying H, the defendant said that he essentially acted as a father to A and was mostly responsible for administering discipline in the family. The defendant said that he had difficulties with A. He said that whilst A was an intelligent and likeable child, he had spent five years with his grandmother, who doted on him and let him do whatever he liked. As such, A was never disciplined appropriately and he would not listen to him or his mother.[227]

   [227]  T383.

10. The defendant acknowledged that there were instances of administering harsh discipline on A, prior to moving to Queensland, which he accepted was ‘way too much … I was always very strict with him and firm with him’. A was grounded quite often and had things confiscated, although there was never any form of physical discipline.[228]

    [228] T384-385.

11. Whilst he agreed that he was the disciplinarian in the household, the defendant did not believe that he dominated A or that A was fearful of him. As the defendant stated, ‘I would want to know where he went and who he was with, but I think that most parents do. Did I occasionally prevent him from going places, I probably did if it was with someone I didn’t like or it didn’t suit the rest of the family, but I didn’t stop him from being a normal kid’.[229]

    [229] T391.

12. The defendant stated that A made the decision to leave school shortly after his 15^th birthday. A had been absent from school for three weeks when the school principal informed the defendant and his wife that A had not been attending school. The defendant said they located A in a park, smoking cigarettes with friends, which led to an argument in the street outside the school, where A was screaming and refused to get in the car unless he was able to leave school. The defendant told A he would have to get a job if he wanted to leave school and said, to everyone’s surprise, A immediately gained work at a timber yard and then with a trailer manufacturer.[230]

    [230] T386-387.

13. Whilst living in Queensland the defendant said that A had school friends and would often visit friends at their home and stay there overnight on weekends. He said that A would get around on his bike.[231] He said that A had a normal childhood.

    [231] T389.

14. The defendant denied that any sexual behaviour was ever perpetrated on A in Queensland.[232] He said that A’s evidence of sexual abuse in Queensland was a complete fabrication.[233] He said he has no knowledge of a cemetery or a cafe in the vicinity of the Bruce Highway.[234] He did not deny that he and A may have driven to places alone together, when A was aged between 8 and 12 years, but that he never sexually abused him on any occasion.[235]

    [232] T389.

    [233] T512.

    [234] T380.

    [235] T510.

15. After the family moved back to South Australia in early 1999, the defendant said that he was unemployed until 2002, when he commenced employment with a national variety distributor. He is now the warehouse manager and has been so for some nine years.

16. He stated that the family were constantly ‘nagging’ A to obtain his driver’s licence and even purchased some five cars for A, in the hope that he would drive. This even included a special trip to Sydney to purchase a particular car that A had said he wanted. The defendant said that A would take the cars purchased for him apart, with the intention of ‘doing them up’, but that he never did and all of the cars ultimately ended up being sold to a wrecking yard. The defendant said that he had to drive A to and from work or to the train station, until A finally obtained his driver’s licence. [236]

    [236] T395-399.

17. The defendant stated that after the family returned to South Australia he made a conscious effort to develop a positive relationship with A, by sharing interests with him, initially car restorations, then photography and computer games.[237]

    [237] T406.

18. The defendant denied that there was ever any sexual activity with A whilst A was living under the main roof of the house in Trott Park.[238] He denied A’s specific and general allegations of sexual activity,[239] and denied any form of sexual activity with A when he was a child and up to the time they engaged in consensual sexual activity.[240]

    [238] T401.

    [239] T401-405.

    [240] T480.

19. The defendant confirmed the practice of having breakfast in the matrimonial bed on Sundays. He said that A would come into the bedroom with his laptop and sit next to him in the bed. This practice started when A was aged about 19 years and only stopped when B first stayed at Trott Park, when A was aged 23 years.[241]

    [241] T438-440; D1.

20. The defendant stated that it was A’s idea to build the ‘granny flat’. He said that it was a form of independence and they discussed it and agreed to it being built. A built the granny flat over about a 12 month period, with the defendant’s assistance. The work was mainly undertaken on weekends over the course of 2003 and 2004.[242] The defendant denied that there had been any sexual activity with A to the time of construction of the granny flat.[243]

    [242] T403-404.

    [243] T405.

    The defendant’s admission of sexual activity with A

21. The defendant admitted to engaging in consensual sexual activity with his stepson, when A was about 20 years of age and over a period of some three years.

22. He stated that late one night, when he and A had finished working on the granny flat for the day and were having ‘a few beers’, A put to him that he wanted to enclose another part of the garage. The defendant said that he started touching A in a sexual way and that A reciprocated.[244] He recalled this first occasion as taking place during the summer of 2003/2004. The touching lasted about five minutes and did not proceed to any other form of sexual activity. The defendant stated that he and A ‘laughed it off and didn’t mention it again’.[245] The defendant acknowledged, that in hindsight, he has no explanation for his conduct and accepted that what he did was reprehensible.[246] He claimed that he was not sexually attracted to A.[247]

    [244] T405.

    [245] T407.

    [246] T408.

    [247] T408.

23. He said that he has never spoken to A, following this first incident, to determine how A felt about what had happened between them. The defendant said, ‘I was a coward, I sort of figured all the time he was behaving normally, that he was okay’.[248]

    [248] T414.

24. He stated that he and A ‘used each other for sex’, two or three times a year and that it was never a romantic thing.[249]

    [249] T411.

25. The defendant stated that the last sexual activity between him and A occurred in about mid 2006 some nine months before A formed a relationship with B. He stated that once A became involved in a relationship with B that sexual activity between him and A never happened again.[250]

    [250] T412.

26. After the first touching incident, the defendant stated that A instigated sexual contact on the next occasion, some three or four months later,[251] and that overall, A would initiate the sexual contact between them ‘probably a quarter of the time’.[252]

    [251] T413, 418, 419.

    [252] T414.

27. The defendant stated that no one else in the family had any knowledge or suspicion of their sexual encounters together. Up until the confrontation, it was the defendant’s understanding that only he and A knew about their sexual relationship.[253] The defendant agreed that on the last two or three occasions, the sexual activity evolved into penile anal intercourse.[254] He believed that his homosexual feelings had never really disappeared after his marriage to H, as he considered himself to be bisexual.[255]

    [253] T419.

    [254] T417.

    [255] T417.

28. The defendant claimed that sexual activity would usually commence whilst he and A were having a cigarette and a drink together on the back verandah at night. They would then move into the granny flat to continue their conversation, not with the intention of engaging in sexual activity, but ‘occasionally something of that nature would then unfold’.[256]

    [256] T420.

29. The defendant admitted that the sexual activity included mutual masturbation, mutual oral sex, and later penile anal intercourse.[257] He stated that in relation to the acts of anal intercourse, they were performed by him upon A although there was one occasion when A attempted to perform the act upon him. He further stated that neither he nor A ever spoke about their sexual encounters to one other.[258]

    [257] T422.

    [258] T422.

30. Whilst the defendant claimed in evidence that he regretted what he was doing with A -‘more than you know’- it was evidently not enough for him to stop doing it again.

31. He agreed that he had a sense of guilt about the sexual contact with A.[259]

    [259] T482.

32. The defendant gave extensive evidence of life after B came to live with them in August 2007. A and B were married some 10 weeks later in November of that same year.  He said that both A and B had a key to the main house, both to the front and back doors.[260] He acknowledged that B had to knock on the back door approximately half a dozen times in the two years she was living there to be let inside, but that was only when A and B had left their keys in the main house.[261]

    [260] T428.

    [261] Ibid.

33. The defendant stated that between January 2008 and about a week before L was born (29 September 2008), an extension was built onto the granny flat, as B was anxious about where the baby would live. Both A and B intimated that they would be living in the granny flat for about five years while they saved for a deposit on their own home. A drew up plans for the extension and the defendant and his wife agreed to extend their mortgage in order to pay for it.[262]

    [262] T430.

34. The defendant stated that he and his wife played a major role in L’s care following her birth. He stated that from the first night L came home from the hospital, until A and B moved to their rented accommodation in Seaton, L slept under the roof of the main house on a sofa with H.[263]

    [263] T431.

35. He also said that following the confrontation, he and his wife continued to assist A and B financially,[264] until A and B moved to Cheltenham, when he and H decided not to give them any more money, as it was quite obvious to them that they were being taken advantage of. Thereafter, they only assisted with essentials such as food, medication or clothes for L.[265] The defendant scoffed at the suggestion that he had given A and B ‘hush money’.[266]

    [264] T433-436.

    [265] T436.

    [266]  T437.

36. Despite the alleged sexual abuse claimed by A over so many years, the defendant stated that A would visit him at his place of work, weekly or fortnightly. This continued up to half a dozen times a year, after A and B had moved into their own home at Seaton.[267]

    [267] T438.

37. The defendant also confirmed his frequent access to L.[268] He stated that this was initially because B was unable to cope with caring for L for any longer than three days and later, because A and B could not afford five days of childcare.[269] This remained the practice until he and his wife last had contact with A and B in late 2012.[270]

    [268] T444.

    [269] T445-446.

    [270] T446.

38. The defendant said that he has never spoken with A about any of the allegations of sexual abuse.[271]

    [271] T480.

    The evidence of the defendant’s wife, H (A’s mother)

39. H confirmed much of her husband’s evidence relating to the family’s early life in Queensland and following their return to South Australia in early 1999.

40. For the final 12 months of their time in Queensland the family lived with the defendant’s mother, in Palmview. For the first six and a half years in Queensland H said that she did not work. Thereafter, she gained employment working in retail.[272] Her husband was never employed whilst they lived in Queensland. During most of the time in Queensland, her husband would drop/pick up the family members from work/school.

    [272] T533.

41. Until she gained employment, H said that she was home most, if not all, of the time when the children were home.[273] She had a close relationship with her husband - ‘pretty much the only time we would be apart was in the mornings when he went to his mum’s to sort out her cattery and if he went to the cat show on the weekends’.[274]

    [273] T544, 547.

    [274] T544.

42. H had no knowledge of a cemetery near the Bruce Highway.[275] She remembered a small cemetery, but could not say where it was and had no knowledge of a cafe or shop selling food near a cemetery as A stated.[276] She agreed that there would have been occasions when only the defendant and A would have been driving in the family car together.[277]

    [275] T335.

    [276] Ibid.

    [277] T604.

43. H confirmed that A had friends whilst he was attending both primary and high schools in Queensland. A’s friends would visit him and vice versa, including sleepovers. A had a bike and rode around like other children of his age.[278]

    [278] T536.

44. She said that A had always been a difficult child and that both she and the defendant were responsible for his discipline.[279] She recalled an argument with her husband after he overreacted when disciplining A on one occasion. She confirmed that on occasions A was made to stand in the corner, but that A was so stubborn he would remain standing in the corner rather than acknowledge his wrong-doing. She did not consider these disciplinary measures ‘harsh’, but ‘having said that, A was extremely difficult ... he didn’t like being told “no”’.[280] She also confirmed that on occasions A was grounded for misbehaving.

    [279] T537.

    [280] T538.

45. H denied that the household was ever dominated or controlled by her husband, or that A’s freedom was ever restricted or that A ever appeared to be in fear of the defendant.[281]

    [281] T539.

46. Both H and her husband had wanted A to continue with his schooling, but once A turned 15 years of age he wanted to leave school. She said ‘as usual, [A] got his way because, he just refused to go’.[282]

    [282] T540.

47. She denied that there was ever an occasion, whilst the family was living in Palmview, when she witnessed her husband and son in a ‘compromising position’ or that she had words with her husband over it, as alleged by A.[283]

    [283] T542.

48. She said that after the family returned to South Australia in February 1999 she did not work for the first two or three years,[284] but then obtained employment at a discount retailer and has worked there for the last 12 years, mostly full-time and nearly always working weekends.[285] She first commenced working at the discount store after A had turned 18 years of age. Before that she was home most of the time.[286]

    [284] T545.

    [285] T546.

    [286] T546.

49. After the family moved back to South Australia and before the granny flat was built, her husband made more of an effort to be involved in A’s hobbies of photography and cars, and that the two of them seemed to become closer.[287] Indeed, leading up to construction of the granny flat, when A was at least 20 years old, she stated that the defendant and A seemed more like friends rather than father and son.[288] In fact, H said that she felt jealous of the amount of time her husband and son were spending together and felt somewhat excluded.

    [287] T567.

    [288] T569.

50. Upon returning to South Australia, H said that A made friends in each of his jobs.[289]

    [289] T547.

1. She said that A was encouraged to obtain his driver’s licence, but he kept putting off the test and so ‘we ferried him everywhere’.[290] H said that they purchased a number of cars for A, so he could learn to drive and ‘so he could have his own independence and take himself to places, so we didn’t have to constantly ferry him about’.[291] Her husband purchased about five cars for A, in the hope that it would encourage him to obtain his driver’s licence, but A would only pull them apart with the intention of ‘doing them up’, which he never did and so they ended up being taken to the wrecking yard.[292] H confirmed the trip to Sydney to purchase a car for A, which A had specifically wanted and which the defendant and H paid for, but it too ‘only ended up being thrown out like the others.’[293]

   [290] T548.

   [291] T549.

   [292] T549.

   [293] T550.

2. H did not recall a time when she attempted to enter the matrimonial bedroom and the door was locked, with her husband and son inside.[294] She did not recall A ever having slept in the matrimonial bed.[295] Before the birth of her granddaughter, L, H said that she never slept separately from her husband.[296] After L was born, L slept under the main roof of the house. H said that she pulled the two-seater lounges together and slept there every night with L, until L was seven months old, when A and B moved to Seaton. She said that A and B were unable to cope with caring for a newborn child. B appeared to be suffering from post natal depression, which explained why B was struggling to look after L.[297] H said she was concerned about L when A and B moved out, as she didn’t want them living so far away, as she feared they would struggle to cope and it would have been preferable if they lived closer.[298]

   [294] T554.

   [295] T556.

   [296] T555.

   [297] T560.

   [298] T562.

3. H confirmed that both A and B had a key to the main house.[299] She said that they only ever knocked on the back door to be let in if they had left their keys inside.[300]

   [299] T557.

   [300] T559.

4. H also confirmed the Sunday morning ritual of breakfast in bed. Before B moved in, A would periodically hop into bed with the defendant saying ‘he [A] didn’t like to miss out on getting a cooked breakfast’.[301]

   [301] T563.

5. H said she and her husband held different views on parenting A to those held by her mother, JM.[302] Accordingly, H said that she sent a letter to her mother, asking her to explain her leniency with A, but there was no reply and contact effectively stopped between she and her mother for six years. A, who was aged eight or nine years at the time, was extremely upset and angry at the break in contact with his maternal grandmother.

   [302] T574.

6. I was impressed with the evidence of H. She was obviously in a very difficult position, not knowing whether to believe her husband or her son. She contemplated leaving her husband, but in the end decided against doing so, after she came to the realisation that her son was not being truthful. As the prosecutor properly submitted, this has the capacity to taint her evidence in favour of her husband and against her son. She has maintained her position of believing her husband over her son. I have carefully taken this criticism into account and despite it, found that she presented as an honest witness, accurately recalling events as she remembered them. She gave her evidence in a forthright manner and was unshaken during cross-examination.

   Forensic disadvantage to the defendant – s 34CB Evidence Act

7. Many years have passed since the alleged sexual abuse of A. In the circumstances of this case, I am of the opinion that this has resulted in a significant forensic disadvantage to the defendant.[303] The delay has meant that the defendant has been unable to properly deal with many of A’s allegations, dating back to the time the family lived in Queensland and later in Trott Park, especially relating to the following:

   [303] See s 34CB (2) of the Evidence Act 1921; R v Finn [2014] SASCFC 46.

   ·the opportunities for the defendant to be alone with A, including the frequency of trips in the car with A;

   ·that A was isolated and was not permitted to have any friends;

   ·the location of the cemetery and State forest, where the defendant is alleged to have sexually abused A, whilst in the car;

   ·A’s behaviour and absences from school;

   ·whether others were present at either house in Kestrel Street or Palmview when the defendant was allegedly sexually abusing A, especially the occasion on the verandah at Palmview when A’s mother is alleged by A to have witnessed something;

   ·the issue relating to A and B not having a key to the main house at Trott Park;

   ·whether the defendant’s wife was unable to enter the matrimonial bedroom and her speaking with the defendant as to what A was doing in the bedroom with him;

   ·the provision of monies and other support to A, and later B;

   ·the recollection of the confrontation and subsequent meetings at the end of February 2011;

   ·A’s continued assertion that he was isolated and without any friends; and

   ·the absence of any opportunity to investigate scientific evidence, such as DNA or a medical examination of A’s anus, which possibly could have been conducted, if the matter was reported at the time.

8. These are some of the real difficulties now faced by the defendant in defending these charges. Not only are events much harder for him to recall with precision, but it becomes increasingly difficult to cross-examine the prosecution witnesses and properly test whether they are now telling the truth.

9. I make it clear that I am in no way critical of A for not disclosing the alleged abuse to the police sooner. This is not what this direction is about. However, the reality remains that in these sorts of cases, it is extremely difficult to mount a defence, due to the lengthy passage of time.

10. I have taken into account the disadvantages faced by the defendant when scrutinising A’s evidence.

    Analysis.

11. As can be seen, the entire prosecution case rests solely upon my acceptance of A’s evidence beyond reasonable doubt.

12. The prosecution has submitted that A was a credible and reliable witness. I accept that A presented as a reasonable witness. In my view, he was attempting, as best he could, to detail his sexual abuse.

13. In doing so, A portrayed himself as having lived a sheltered life, being dominated by the defendant and having no independence whatsoever. He claimed that the defendant dominated his will and described his experiences and restricted freedom as a form of institutionalisation, akin to living in a ‘cult type environment’. He claimed such was the extent of his domination, that he was conditioned by years of sexual abuse, control and manipulation and that is how he came to view life.

14. This description is strongly at odds with the evidence given by the defendant, H and indeed A’s own wife. I accept, contrary to what I was told by A, that he had friends. This is an area where had the allegations been reported sooner, this aspect could have been explored by the defendant. Both the defendant and A’s mother said that he had school friends. Further, both said that he had friends later in life, although I note the defendant’s answer to the police that A did not have many friends when the family returned to South Australia.

15. Nevertheless, I am satisfied that A did go on to make friends, contrary to what he said. After all, he was apprentice of the year (twice in fact) and was a runner up for the world skills award. He also held a number of jobs during his life, from working at a trailer company, then as a jeweller, to security guard, later as a prison officer and finally, as a security guard at the Casino. There was no suggestion that he did not get along with his work colleagues or felt isolated at work.

16. A also seems to have been constantly encouraged by the defendant to obtain his driver’s license and to live semi-independently from the rest of the family in the granny flat.

17. This is hardly a situation of A being manipulated and totally controlled by the defendant, as A claimed.

18. The defendant produced in evidence a number of photographs said to contradict A’s evidence of fear, control and domination at the hands of the defendant, such as A running in front of the camera when the defendant was taking photographs of the master bedroom, which A had redecorated. The photographs revealed A jokingly pulling his underwear down when the photograph was taken.[304]

    [304] Exhibit D2 said to be taken in 2006. T 441.

19. I accept that the photographs depict A to be someone who enjoys a joke with his family, which again is inconsistent with his portrayal of himself as being the victim of years of sexual and emotional abuse, through his conditioning by the defendant.

20. Then there was the evidence of having breakfast in bed with the defendant of a Sunday morning. This is hardly the sort of behaviour one would engage in if one is constantly being subjected to countless acts of rape and indecent assault.

21. In November 2012, A provided the police with a detailed statement of the alleged sexual abuse by the defendant. During A’s cross-examination, a number of inconsistencies were exposed between what A had said in evidence and what he had told the police.

22. It is well accepted that prior inconsistent statements have the capacity of affecting the credibility of a witness or the reliability of their evidence. 

23. A frequently answered questions throughout his cross-examination by saying, ‘I don’t recall’ or ‘not that I remember’. This has affected my overall assessment of A as a reliable historian, especially given that some of the topics about which he apparently had difficulty recollecting, were matters that one would have expected him to have easily recalled, such as whether he went to his mother’s 50^th birthday, whether his stepfather hired a truck to help him and B move from Seaton to Cheltenham, or whether his mother visited him only two days after the confrontation to ascertain more details about his alleged abuse, amongst other examples throughout his evidence.

24. Whilst I am not able to state that A was lying about the sexual abuse, I have some reservations about the accuracy of his evidence. Perhaps he felt he needed to ‘gild the lily’ a little, so as to make his account sound more believable. 

25. The prosecution strongly contended that the defendant admitted sexually abusing A as a child, to both A and B. Further, the prosecution has argued that the e-mail correspondence in November 2012 supports this conclusion.

26. Insofar as B’s evidence is concerned, I generally found her to be an honest and open witness. On the whole of the evidence, however, I am not satisfied beyond reasonable doubt that the defendant made the admissions, in her presence, to sexually abusing A when A was a child as contended by the prosecution. Her evidence on this topic has left me in a state of uncertainty.

27. I am left with a reasonable doubt on the evidence, as to whether or not the defendant was admitting sexually abusing A when A was a child, as alleged by A and in some respects by B, or whether the defendant was merely acknowledging the inappropriate conduct engaged in with A when A was an adult. The defendant denied making such admissions to A or B. His wife, H, does not state that any admissions were made by the defendant at the confrontation.

28. Whilst the defendant’s evidence concerning the e-mail he sent to A was hardly impressive, the rest of his evidence was, in my view, consistent with his denials of any sexual impropriety against A, as a child and that the sexual activity, to which he admitted engaging in with A, was consensual and occurred when A was an adult.

29. I am therefore left in a situation where I have a reasonable doubt whether the e-mail contains the admissions contended for by the prosecution. It probably does, on the face of it, but I am not satisfied beyond reasonable doubt, in light of the rest of the defendant’s evidence.

30. Whilst the defendant’s wife has remained loyal to her husband and has disbelieved her own son, I found her to be honest and forthright in her presentation. There was nothing in her presentation or in what she said in evidence, which has caused me to dismiss her account of events.

31. I wish to emphasize that these reasons in no way reflect a view held by me that A is a liar or an outright dishonest witness.

32. However, given that the standard of proof in a criminal trial is a high one and taking into account the significant forensic disadvantage faced by the defendant; when scrutinizing A’s evidence, I find myself in a position where I am simply unable to decide between A’s and B’s evidence, on the one hand and the defendant’s and his wife’s evidence, on the other, as to who is telling the truth or where the truth lies.

33. In such a situation, a reasonable doubt logically arises on the evidence.

    Verdicts

34. I therefore find the defendant not guilty of both counts.