R v Mahlook - [2013] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MAHLOOK
Criminal Trial by Judge Alone
[2013] SADC 65
Reasons for the Verdicts of His Honour Judge Muscat
17 May 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with two counts of unlawful sexual intercourse with a child under the age of 14 years - other discreditable conduct not of a sexual nature admitted to place alleged offending in context.
Verdicts: Not guilty of both counts.
Criminal Law Consolidation Act 1935 s 49(1); Juries Act 1927; Evidence Act 1929 ss 34M, 34P, 34R, referred to.

R v MAHLOOK
[2013] SADC 65
The Charges

Cameron Boyd Mahlook is charged with two counts of engaging in unlawful sexual intercourse with B, a boy of the age of 11 years, at Dry Creek on the 17^th day of May 2006, contrary to section 49(1) of the Criminal Law Consolidation Act 1935.
Count one alleges an act of fellatio, that is the insertion of Mr Mahlook’s penis into B’s mouth. Count two alleges an act of anal intercourse, being the insertion by Mr Mahlook of his penis into the anus of B.
Trial by Judge Alone
Mr Mahlook pleaded not guilty and elected for trial by judge alone, in accordance with the rules under the Juries Act 1927.
Onus and Standard of Proof
Mr Mahlook is presumed innocent of the charges he faces. The prosecution bears the onus of proving the charges against him. There is no onus on Mr Mahlook to prove anything in a criminal trial.
The prosecution must prove every element of each count beyond a reasonable doubt before I can find Mr Mahlook guilty of either or both of those counts.
It is not sufficient for the prosecution to show a mere suspicion of guilt or that Mr Mahlook is probably or likely guilty of the charges he faces.
If I am unable to determine where the truth lies or who is telling me the truth in relation to the particular count under consideration then, in that event, the prosecution would not have proved that count beyond reasonable doubt.
Separate Consideration of Counts
Each count relates to a separate and distinct offence. Each count must therefore be treated separately and distinctly by me upon the evidence in respect of that particular count. The verdicts do not fall or stand together.
Elements of the Offence
In order to make out each count of unlawful sexual intercourse, the prosecution must prove beyond reasonable doubt the following elements of the offence:
First, that Mr Mahlook engaged in an act of sexual intercourse with B. Here the acts alleged, of fellatio and penile-anal intercourse, constitute acts of sexual intercourse.[1]
[1] Section 5(1) Criminal Law Consolidation Act 1935.
Therefore, in order for this element to be established, it must be proved beyond reasonable doubt that Mr Mahlook placed his penis into B’s mouth and inserted his penis into B’s anus. This element of the offence is in dispute in this case.
Secondly, that at the time of sexual intercourse B was under the age of 14 years. It was an agreed fact that B was born on 11 May 1995 and had just turned 11 years old at the time of the alleged offences.[2] There is no dispute as to this element of the offence.
[2] See Statement of Agreed Facts Exhibit P1.
B’s Evidence
B was aged 17 years when he gave his evidence via closed circuit television. I have not allowed this arrangement to influence me in any way in assessing the weight of his evidence nor have I drawn any adverse inference against Mr Mahlook as a result of this arrangement.
At the beginning of 2006, B was living with his mother and his two younger sisters. Also living with them was Mr Mahlook, who was in a relationship with B’s mother. Mr Mahlook had lived at the address for about three or four months.[3]
[3] T 27
At the time of the alleged offences B was in the fifth grade of primary school.[4]
[4] T 28
On the night of the alleged offending B stated that he returned home after visiting a friend’s house after school. It was suggested in cross-examination that Mr Mahlook and B’s mother went looking for him around 6 or 7 o’clock in the evening. It was further suggested they found him at a friend’s place that was within walking distance of the family home.[5] B gave evidence that they did attend his friend’s house but said that he refused to go home with them at that time.[6] He said he only returned when he wished to do so and that was around 8 or 9 o’clock that same evening.[7]
[5]    T 53 and 60
[6]    T 60-61
[7]    T 60-61
B gave evidence that when he returned home his mother confronted him and accused him of touching his four year old sister in his bedroom that morning.[8] He flatly denied to his mother that anything happened between his sister and him. He said he questioned his mother “why are you asking me this? I’m not like that, I haven’t done anything.”[9]
[8] T 62
[9] T 62
It was suggested to B in cross-examination that Mr Mahlook had entered B’s bedroom that morning and when he removed the bed covers found B and his sister in bed together and confronted B about it.[10] It was further suggested to B that his sister was not wearing her nappy. B strongly denied that Mr Mahlook caught him in bed with his sister that morning or that she was not wearing her nappy.[11] B also rejected the suggestion that Mr Mahlook then told him to get out of bed and to go to school.[12]
[10] T 56-57
[11] T 56
[12] T 57-59
B gave evidence that after confronting him, his mother left to speak with Mr Mahlook who then entered his bedroom and continued the confrontation about his sister. B said that his mother was crying when Mr Mahlook confronted him.[13]
[13] T 28
Mr Mahlook then grabbed hold of B and took him outside to the backyard where Mr Mahlook said “I am going to take you away”.[14]
[14] T 28
B said that Mr Mahlook then told him to take all his clothes off.[15] He then took off all his clothes, including his underwear. Mr Mahlook went inside the house and returned with some tape which was used to tie B’s hands and cover his mouth. He said that he was then walked to the shed and locked inside.[16] He said that he was “scared, crying, a little bit confused”.[17]
[15] T 29
[16] T 29
[17] T 29
A short time later Mr Mahlook returned to the shed and took B to a Toyota Camry station wagon.[18] B was told to “give your mum a big hug and a kiss”.[19] Mr Mahlook then opened the tailgate and told B to get into the cargo area of the station wagon. Mr Mahlook then placed a blanket over B.[20]
[18] T 29
[19] T 29
[20] T 29
B claimed that he got in the car “because at the time I was scared of [Mr Mahlook] because he had a really serious look in his eyes like he was going to do something to me”.[21]
[21] T 30
Once B was in the back of the station wagon Mr Mahlook left and then returned and placed a shovel on the back seat.[22] B said he felt petrified at this point fearing that he was “going to be killed and that something bad was going to happen to him.” He was scared, crying and “freaking out” whilst in the back of the station wagon.[23]
[22] T 31
[23] T 31
B said that as the car started backing out of the driveway Mr Mahlook said “I am going to fucking kill you”.[24]
[24] T 31
After what B estimated was a 20 minute journey the car pulled into a driveway.[25] At this point the boot of the car was opened and the blanket removed and Mr Mahlook and another man were standing there looking at B.[26] B said that he didn’t remember the entirety of what was said except for Mr Mahlook saying “I’m going to beat this guy tonight, being a little troublemaker”.[27] B said that the two men were laughing at him while he was in the boot of the car.
[25] T 31- 32
[26] T 32
[27] T 32
In cross-examination B added that Mr Mahlook told his friend, “I’m going to go bury this little cunt tonight”.[28] B conceded that he did not mention this to Detective Bulmer in 2006.[29] He said that it was only when being cross-examined that he remembered Mr Mahlook saying that to him.[30]
[28] T 67
[29] T 69-70
[30] T 69
B said that the tape around his hands and mouth was not removed in the driveway and that Mr Mahlook also taped his feet together by wrapping duct tape around his ankles five or six times.[31] B agreed that when spoken to by Detective Bulmer some five years later he did not say anything about his feet being taped.[32] When pressed in cross-examination he retreated from the suggestion that his feet were taped at the house.[33] He eventually conceded that he now had no memory of his feet or ankles being taped.
[31] T 32-33
[32] T 73
[33] T 74
B believed it was about another 30 minute drive from when the car stopped at the house to when the car next stopped.[34] Here B claimed that Mr Mahlook opened the tail gate and told him to get out.[35] B said he recognised that he was at the ‘salt pans’ as he remembered driving past them on the way to the speedway prior to this night.[36]
[34] T 34
[35] T 35-36
[36] T 35
Mr Mahlook then removed the tape from B’s feet and mouth at a locked gateway to a road[37] and told him to “scream as loud as you want, no one can fucking hear you.”[38]
[37] T 35
[38] T 35
At this location, a locked gate allowing access into the area was opened by Mr Mahlook after which B was told to get in the front passenger seat of the car.[39]
[39] T 36
They drove for five minutes and when the car stopped it was now by an evaporation pond.[40] B was told to get out of the passenger seat. Mr Mahlook retrieved the shovel from the back seat and handed it to B. B was told to walk down to the water before he started digging.[41]
[40] T 36
[41] T 36
B said his hands were still bound with tape but the tape from his mouth had been removed.[42] Mr Mahlook then told him to dig his own grave. B attempted to dig a hole in the hard ground with his hands taped together but struggled to do so. During cross-examination B reiterated that his hands were still tied during the digging process,[43] although he could not remember at what stage the tape was removed from his hands.
[42] T 36
[43] T 78 and 79
B accepted that the tape that was removed from his mouth and hands was found at the grave site.[44] He had no explanation for how the tape that he says was removed at the gate found its way to the site where the grave was dug.[45]
[44] T 79
[45] T 90
In his interview with Detrctive Bulmer on 18 September 2006, B claimed that Mr Mahlook briefly took over digging the grave before taking him to the car.[46] In his evidence at trial, B said he had no memory that Mr Mahlook ever used the shovel to dig the grave himself.[47]
[46] T 87 and 150 (Det Bulmer)
[47] T 87 and 89
Furthermore, in his interview B told Detective Bulmer that Mr Mahlook had hit him on the bottom with the shovel. When challenged in cross-examination B claimed he had no memory of being hit with the shovel before being placed in the car.[48] B even went so far as to say that he was not hit with the shovel at any time.[49]
[48] T 89
[49] T 104
When it was put to B that his evidence was different to the statement he made to Detective Bulmer on 18 September 2006, he had no explanation for his change of evidence in this regard.[50]
[50] T 89 and 90
In relation to what happened whilst he was digging, B gave evidence that after five minutes of digging Mr Mahlook grabbed him by the elbows and took him to the front passenger door of the station wagon.[51] B said he was pushed into the car with his bottom on the seat and his feet outside the car.[52] He said his hands were still taped at this point.[53]
[51] T 37
[52] T 38
[53] T 37
Once B was seated in the front of the car Mr Mahlook told him “bad boys get fucking punished”.[54]
[54] T 38
At this point B said Mr Mahlook then:
“... undid his pants, and undid the zipper, he pretty much took his dick out, and at that time he didn’t have a hard on, he tried to stick his dick in my mouth and when he started getting a hard on he like, just forced like me, so then my mouth opened, like he tried to force it in then he got it in, then he went and stuck it down my throat, made me choke three or four times. He was thrusting back and forth”.[55]
[55] T 38-39
B said that Mr Mahlook placed his hands on the back of B’s head while Mr Mahlook’s penis was in B’s mouth.[56] B said that Mr Mahlook was trying to make B’s head move back and forth. B said that Mr Mahlook’s penis was inserted into his mouth four or five times and this lasted “pretty much a minute”.[57] B said that Mr Mahlook did not ejaculate.[58]
[56] T 39
[57] T 39
[58] T 40
B’s evidence was that his hands were still tied with tape during this act of fellatio.
This incident is the subject of count one of the Information.
B said that Mr Mahlook then grabbed him by the shoulder blades, removed him from the car and placed him face down on the bonnet of the car.[59] B said his feet were barely touching the ground when he was bent over the bonnet.[60]
[59] T 40
[60] T 41
B said that he felt Mr Mahlook’s hands on his buttocks. He said Mr Mahlook used his hands to spread his buttocks before Mr Mahlook inserted his penis into his anus.[61]
[61] T 41
B said:
“He bent me over, on my tummy, so I was being – laying, bent over the car, then he opened my arse cheeks, tried to stick his dick between my arse cheeks to my arse, then he went twice, couldn’t find the hole, then the fourth or fifth time he found it and then he stuck it in my arse, went back four or five times, so it didn’t happen that long, then he stopped.”[62]
[62] T 40-41
In his statement to Detective Bulmer in 2011, B stated “he [Mr Mahlook] didn’t try to open my arse cheeks, he just tried to force his dick up my arse.”[63] When it was put to B in cross-examination that his evidence in regard to Mr Mahlook opening his buttocks was different to his statement, B could not explain this inconsistency[64] but said his memory now was that Mr Mahlook placed his hands on B’s buttocks and then opened them.[65]
[63] T 97 (Statement of B dated 14 July 2011).
[64] T 97
[65] T 98 and 100
B went on to say that Mr Mahlook rammed his penis into his anus and that he thrust five or six times.[66] He said at the time he was crying and in pain and that he screamed for Mr Mahlook to stop.[67]
[66] T 42
[67] T 42
While intercourse was occurring, B said that Mr Mahlook was holding onto his waist or his “love handles”.[68] He said that the act of anal intercourse lasted for one or two minutes[69] and that Mr Mahlook did not ejaculate.[70]
[68] T 42
[69] T 42
[70] T 42
This incident is the subject of count two of the Information.
After the act of anal penetration came to an end B said Mr Mahlook told him “if you tell anyone, I’ll fucken kill you and your whole fucking family too, and then I’ll rape your two little sisters”.[71]
[71] T 41
In cross-examination B could not explain why he had not mentioned to Detective Bulmer that Mr Mahlook had said these things to him[72] but maintained that they were said.[73]
[72] T 101; cf Det Bulmer who said he could not recall that but if it was mentioned by B that detail would have been recorded (T152).
[73] T 102
It was put to B that his police statement included an allegation that Mr Mahlook hit him on the shoulder with the shovel five times.[74] B said he had no memory of saying that to Detective Bulmer when spoken to on 18 September 2006.[75]
[74] T 102
[75] T 102; Det Bulmer at T 150 confirmed B said this to him.
It was also put to B that he told Detective Bulmer that Mr Mahlook hit him on the bottom with the shovel while he was bent over the car bonnet.[76] He then confirmed that he was not hit on the bottom with the shovel.[77] He could not explain the inconsistency between his statement to Detective Bulmer and his evidence in chief.[78]
[76] T 104; Det Bulmer confirmed this was said to him T 150.
[77] T 104
[78] T 104
When asked if his hands were still taped during anal intercourse, he said “no, they were not”. When asked to clarify this, he said “no, I – yes, they were; sorry I have to think of that.”[79]
[79] T 41
Ultimately, B was unclear about when the tape came off his hands.
After the anal intercourse had ceased, B said that Mr Mahlook told him to “walk into the water”.[80] B said he was made to walk 20 metres into the evaporation pond where the water was up to his waist.[81]
[80] T 43
[81] T 43
B gave evidence that once he was in the water, Mr Mahlook said to him “if you don’t get back here I’m going to fucking drive off and you can walk home buck naked.”[82] B then began to “power walk”[83] back to the shore.
[82] T 43-44
[83] T 44
As B was wading back to the shore, Mr Mahlook was reversing the station wagon when the left rear tyre slid into a drainage ditch, causing it to become stuck.
In cross examination, it was suggested to B that when Mr Mahlook returned to the car to close the boot, B dropped the shovel and ran into the water. B claimed that this was a lie.[84]
[84] T 82
When asked to clarify how deep the water was, B answered by saying “when you walked five metres in it would have been up to my knees, when I walked nearly a quarter in there it was up to my chest.”[85] He further stated that when he was 20 metres into the pond it was up to his chest.[86]
[85] T 110
[86] cf Det Bulmer at T 147 who confirmed he was told by B on 14 July 2011 that the water was up to his chest.
It was put to B that in the video taken on 23 May 2006 (Exhibit D1) at the scene, he had indicated to Detective Bulmer that the depth of the water was only up to shin height.[87] B denied this fact and maintained that the water was up to his waist. The video clearly demonstrates B standing by the waters edge indicating to Detective Bulmer the depth being only shin height.
[87] T 111
B disagreed with the suggestion in cross-examination that Mr Mahlook said to him when B was in the water, “come back in. I wasn’t going to kill you anyway. You just needed to learn a lesson.”[88] According to B, when he reached the car, Mr Mahlook gave him a jumper that was in the car to put on.[89]
[88] T 85
[89] T 44
Efforts were then made by Mr Mahlook and B to retrieve the car from its precarious position in the ditch.
After Mr Mahlook determined that the car could not be retrieved, he told B that they were walking out. They then walked across the terrain before coming to a truck depot.[90]
[90] T 45
In cross examination B somewhat changed his version of events in regard to the degree of effort made to get the car out. He agreed with the suggestion that quite a bit of work was done to attempt to get the car out of the ditch.[91] However, he disagreed with the suggestion that he was in the driver’s seat while Mr Mahlook attempted to push the car out.[92] Under cross examination he said that Mr Mahlook was in the driver’s seat while he was made to push the car out.[93]
[91] T 82
[92] T 83
[93] T 84 and 107
B conceded that this updated account was inconsistent with what he told Detective Bulmer on 23 May 2006.[94] He offered no explanation for the inconsistencies in his version of events.
[94] T 108
When they arrived at the truck depot Mr Mahlook asked a person if he could make a telephone call because his car had broken down. Mr Mahlook telephoned Nick Ederosi and told him where to meet them.[95] Mr Mahlook and B stood on Port Wakefield Road waiting for Mr Ederosi to arrive.[96] Mr Mahlook told B, “if you tell anyone I will fucking personally put you in the ground myself”.[97]
[95] T 45
[96] T 46
[97] T 46
B said that as Mr Ederosi pulled up, he had tears in his eyes.[98] B did not say anything to Mr Ederosi because Mr Mahlook was there and he felt scared.[99]
[98] T 46
[99] T 47

All three then drove to where the station wagon was stuck in the ditch and through the use of chains, which Mr Ederosi had with him, the station wagon was extracted.
In his evidence Mr Ederosi confirmed that he received a telephone call from Mr Mahlook to help extricate the station wagon. He said he drove to Port Wakefield Road where he located Mr Mahlook and B.
Mr Ederosi said that he did not notice B’s demeanour when B got in the back of his land cruiser.
He said that after the car was pulled from the ditch, Mr Mahlook and B immediately got into the station wagon and left.[100]
[100] T 124
B said that he sat in the front passenger seat of the station wagon as they drove home. On the drive home Mr Mahlook told B “if you tell anyone, I will fucking kill you and your family”.[101]
[101] T 47
B’s evidence was that once they arrived home, Mr Mahlook again said to him “you tell your mum and I will fucking kill you in front of your family, and I will kill all of youse at once.”[102]
[102] T 48
B then entered the house with Mr Mahlook who told him to go to his mother’s bedroom.[103] B said he got into his mother’s bed and went to sleep. B said that he slept in the jumper that Mr Mahlook had given him at Dry Creek.[104] B estimated that this was about 1 or 2 o’clock in the morning.
[103] T 48
[104] T 48
B said that he then woke up and went to school.[105] B said that when he got to school he asked his teacher if he could see the school counsellor.[106]
[105] T 48
[106] T 48-49
B told the school counsellor what had happened earlier that morning insofar as the abduction and threats to his life made by Mr Mahlook were concerned. B did not tell the counsellor anything regarding the sexual acts that he had allegedly been subjected to.
B later spoke to Detective Bulmer at the school.[107] He told Detective Bulmer about the abduction and being taken to the salt mines. B said in evidence that he was not “feeling comfortable” at the time he spoke with Detective Bulmer and as such did not tell him about the sexual allegations.[108]
[107] T 49
[108] T 49
B moved in with Mr Ederosi shortly after these events. Some months after moving in, B told Mr Ederosi about what Mr Mahlook had done at Dry Creek. Mr Ederosi said in evidence that B had told him “Cameron put his dick up my arse.”[109]
[109] T 125
Mr Ederosi said that B appeared “stressed out. He was just - he wasn’t himself and I could tell he was upset”.[110]
[110] T 125
Mr Ederosi told B to go to bed and that he would “fix it in the morning ... sort it all out in the morning”.[111] He did not ask B any further questions because he did not want to upset him.
[111] T 125
In the morning Mr Ederosi contacted Detective Bulmer to report what he had been told by B. Detective Bulmer confirmed he received a telephone call from Mr Ederosi in this regard on 15 August 2006.[112] This was the first time Detective Bulmer had become aware of any allegation of sexual misconduct against B. As a result of this conversation with Mr Ederosi, Detective Bulmer spoke with B on 18 September 2006 at B’s school. At this time B disclosed to him that Mr Mahlook “made [me] suck his dick”.[113] Detective Bulmer said that B was nervous and hesitant and sitting in a room with his baseball cap pulled over his face and was clearly very uncomfortable about speaking about such personal allegations at that time.
[112] T 130
[113] T 131
B gave different evidence than Detective Bulmer in relation to the timing of his complaint insofar as the sexual allegations are concerned. B said that he reported the sexual misconduct to Detective Bulmer two days after initially speaking with him in May 2006.[114] B said that he then revealed the sexual allegations to Detective Bulmer. B was clearly mistaken about this as I am satisfied that Detective Bulmer did not speak with B concerning the sexual allegations until after he was informed of the sexual misconduct by Mr Ederosi on 15 August 2006.
[114] T 49
When asked why he only disclosed the sexual allegations at this time, B explained that he found it “hard to tell a bloke, to a bloke, because I feel like judging, like people are judging me”.[115] Furthermore, he felt scared and embarrassed.[116]
[115] T 49
[116] T 50
I accept that B would not have felt comfortable speaking about the sexual allegations when he first spoke with the school counsellor and later with Detective Bulmer in May 2006. Indeed B did not say much more about the sexual allegations other than what he had disclosed to Mr Ederosi and Detective Bulmer at the time. B was then a young child who had a number of learning and speech difficulties. It is not surprising that he did not then mention the sexual allegations.
What B said to Mr Ederosi in August 2006 and later to Detective Bulmer in September 2006, is not evidence of the truth of what B has alleged. The evidence of what B said to Mr Ederosi informs me of when B’s allegations of sexual intercourse first emerged. It is also evidence of consistency of conduct on B’s part and is relevant to an assessment of B’s credibility. [117] I am satisfied that given B’s age and his difficulties, his complaint of sexual intercourse perpetrated by Mr Mahlook was made by B to Mr Ederosi at the first reasonable opportunity in light of B’s situation. I will therefore have regard to B’s complaint to Mr Ederosi when assessing his credibility in relation to the sexual allegations he has made against Mr Mahlook in respect of count one.
[117] Section 34M(4) Evidence Act 1929.
I am also satisfied that what B later disclosed to Detective Bulmer was an elaboration of B’s initial complaint to Mr Ederosi. Once again I observe that this subsequent disclosure occurred not long after B first complained to Mr Ederosi and when Detective Bulmer was next able to speak with B. Given B’s age and his personal circumstances at the time, I am satisfied that B’s elaboration of his initial complaint has the capacity to demonstrate consistency of conduct on his part and supports his credibility as to the sexual allegations he has made against Mr Mahlook in respect of count two.
Evidence of Mr Mahlook
Mr Mahlook gave evidence before me. His evidence is not to be undervalued simply because he is an accused person. I approach his evidence in the same way as all the other witnesses in the case.
At the time of the alleged offences Mr Mahlook was in a relationship with B’s mother and living with her and her children, including B. He said that on the morning of the alleged offending he discovered B in bed with B’s sister.[118] He said he confronted B in the morning around 7am.[119] He said that he got B out of bed and said to him “you’ve got to go to fucking school and I’m going to have a conversation with your mum, I’m going to tell your mum”.[120] He said that he was initially hoping to let B’s mother deal with the matter.[121]
[118] T 166
[119] T 203
[120] T 203
[121] T 205
Mr Mahlook said that around dinner time on 17 May 2006, he was at home with B’s mother and her daughters.[122] B was not home at the time. Mr Mahlook gave evidence that it was decided at this time that B was to be taught a lesson as he had been found “acting inappropriately” with one of his four year old sisters.[123]
[122] T 166
[123] T 166
Mr Mahlook and B’s mother then contacted a number of B’s friends to ascertain where he was.[124] Around midnight they eventually established that B was at a friend’s house around the corner from where they were living.
[124] T 167
Mr Mahlook said that he and B’s mother walked to B’s friend’s home. There they spoke to the people who lived there before B was brought to the front door. Mr Mahlook said that B was made to come home at that time. In his words, “he was told to get his arse home”[125] and the three of them then walked home together.[126]
[125] T 168
[126] T 168
When they arrived home B was immediately confronted in the lounge room by his mother regarding the alleged inappropriate contact between B and his younger sister.[127]
[127] T 168
Mr Mahlook gave evidence outlining what he planned to do that evening saying that,
“... I’d take him for a lesson and teach him that that act, kind of activity was not tolerated in society, let alone – I had a conversation and I became aware that [B’s mother] had also been touched as a child. She was mortified and horrified. And she asked me herself to actually take him for a, to teach him a lesson.”[128]
[128] T 169
Mr Mahlook explained he undertook the task of punishing B at the behest of B’s mother.[129] However, the nature of the punishment, namely the decision to take B to Dry Creek and force him to dig a grave, was his idea.[130]
[129] T 210
[130] T 207
While he agreed with the suggestion made to him in cross-examination that B was a “difficult child”, he denied the suggestion that he was just taking an opportunity to punish B because he did not like him.[131]
[131] T 206-207
He said that he was disgusted with B at what he had done to his sister. He said B was taken to Dry Creek to be taught a lesson.
He went on to say that his intended punishment had been that B would be made to dig his own grave and made to think that he was going to die.[132] He acknowledged that, in hindsight, this was not an appropriate form of punishment for a young child.[133]
[132] T 169
[133] T 169
Mr Mahlook said that B was made to strip in the lounge room and that his hands and mouth were then bound using duct tape.[134] At this point B was naked. He said that B looked scared at this time.[135] He said the decision to strip B of his clothes was made at the time in order to make the punishment seem “authentic”.[136] In cross examination, he said that the lesson B was to be taught that night was to never again offend against his sisters.[137] He said that he wanted B to know that there would be ramifications for what he did.[138]
[134] T 169
[135] T 170
[136] T 207
[137] T 202
[138] T 202
He said that the decision to tape B’s hands and mouth was his idea.[139] He said he did not want B getting loose and doing anything while he was driving out to Dry Creek.[140]
[139] T 208
[140] T 209
Mr Mahlook claimed that he wrapped B in a blanket and then lifted him into the boot of the station wagon.[141]
[141] T 170
He confirmed B’s account that he then placed a shovel in the back of the car before leaving.[142]
[142] T 170
Mr Mahlook accepted that on the way to Dry Creek he made a stop at a friend’s house at Prospect.[143] Mr Mahlook went to the front door and got his friend to come out to the car. Mr Mahlook claimed he said to his friend, “Look what the fucking little prick did.”[144] He then told his friend about finding B in bed with B’s sister. He also said that at this point he removed the tape from B’s mouth.[145] He then asked B to tell the other man what he did. His evidence was that B said that he had been caught by Mr Mahlook touching his sister.[146] In his evidence B denied that he said any such thing to Mr Mahlook’s friend.
[143] T 170
[144] T 170
[145] T 171 and 172
[146] T 171
Mr Mahlook strongly denied that B’s feet or ankles were taped at the Prospect address.[147]
[147] T 172
Mr Mahlook said that he chose to drive to Dry Creek because it was remote.[148] He said that he wanted B to believe that he was going to be killed and buried at Dry Creek. It is an agreed fact that once there he cut the chain on the gate allowing access to the property at Dry Creek.[149]
[148] T 172
[149] tatement of Agreed Facts-Exhibit P1.
It was only when they had arrived at the site where B was to dig the grave was B taken out of the boot of the car.[150] He denied that B was removed from the car at the site of the locked access gate as B claimed. Mr Mahlook said that he opened the boot to the station wagon and then removed the blanket from B before helping him out of the car. Mr Mahlook said that he removed the shovel from the car when he got B out.[151] The boot remained open as they walked towards the water.
[150] T 173
[151] T 175
Mr Mahlook claimed that once they were at the location where B was to dig the grave, he removed the tape from B’s hands and mouth.[152] He ripped the tape off B’s mouth and used a box cutter/sliding craft knife to cut the tape from his hands.[153] He indicated that he “ditched” both pieces of tape, throwing them on the ground nearby.[154]
[152] T 174
[153] T 174
[154] T 174
Once the tape had been removed, he then told B to “start digging. Start digging your grave”.[155] He said that he heard the shovel hit the ground “like ... he was trying to spade into the ground”.[156]
[155] T 175
[156] T 176
He then left B digging the hole and went back to the car to close the boot and get his pack of cigarettes.[157]
[157] T 176
Mr Mahlook completely denied the sexual acts alleged against him by B. It was suggested to Mr Mahlook in cross-examination that he put B in the car and forced him to perform fellatio because B was not sufficiently scared nor taking the situation seriously.[158] Mr Mahlook again denied forcing B to perform fellatio upon him.[159] He also denied saying “bad boys get fucking punished” before putting his penis in the complainant’s mouth.[160] Mr Mahlook denied anally penetrating B.[161] He also denied that he said that he would rape B’s sisters and kill B’s entire family if he told anyone about what had happened.[162]
[158] T 228
[159] T 229
[160] T 193, 215 and 228
[161] T 193 and 229
[162] T 193
Mr Mahlook denied the suggestion that he performed the alleged sexual acts on B in order to teach him not to do it to others.[163] He denied hitting B with the shovel either on the bottom or on the shoulder.[164]
[163] T 203 and 214
[164] T 194
Mr Mahlook said that once he was at the car and his back was turned, he heard the sound of the shovel being dropped on the ground and some fast moving footsteps away from the site followed by the sound of splashing water[165] as B was trying to run away from him.[166]
[165] T 176
[166] T 180
The car became stuck in a drainage ditch as he attempted to swing the headlights over the evaporation pond in order to see where B was.[167] Mr Mahlook said that he was concerned that B might hurt himself while out in the pond. He stated that it was his aim that night to frighten B and not to physically hurt him.[168]
[167] T 180-182
[168] T 223
After the car became stuck, Mr Mahlook said that he got out and ran to the verge on the edge of the pond. He then yelled out to B saying “Come back mate. It’s all alright. Nothing’s going to happen.”[169]
[169] T 181
After he called out to B, B started walking back into shore and was crying.[170]
[170] T 182
After getting to the shore B said to Mr Mahlook that he did not want to die.[171] Mr Mahlook said that he reassured B that at no stage was he intending to carry out the threat to kill him.[172]
[171] T 182
[172] T 182
Mr Mahlook said at this point B admitted to behaving inappropriately towards his sisters since the previous Christmas.[173] Mr Mahlook told B that “people in society would not tolerate that”. He said he “made it clear to him that if he was someone else’s child staying at that premises he probably would have gone in the hole.”[174]
[173] T 183 and 202
[174] T 182
Mr Mahlook recounted the effort that was made to retrieve the car from the ditch. Specifically, that he attempted to push the car out of the ditch while B was in the driver’s seat driving the car.[175] While pushing the car out, Mr Mahlook was directing B how to engage the manual gearbox. He said that the two of them attempted to recover the vehicle for 40 minutes.[176] He said that B was naked during the time they tried to get the car out.[177]
[175] T 183
[176] T 184
[177] T 184
Mr Mahlook said that after unsuccessfully trying to remove the car from the ditch, he decided to leave the scene on foot.[178] On his evidence, he gave B a yellow jumper that he had “pre-prepared” from home.[179] Apart from wearing the jumper, B was naked.
[178] T 184
[179] T 184
Mr Mahlook and B then walked over rough terrain out of the property to reach the Port Road Expressway. They emerged near the intersection of Salisbury Highway, Port Wakefield Road and the Port Road Expressway.[180] It was his evidence that he “piggybacked” B most of the way over the swamps.[181] He agreed that the footprint in photograph 23 in Exhibit P2 belonged to B[182] and that B’s feet were scratched more than being muddy as a result of walking over the swampland.[183]
[180] T 185
[181] T 190
[182] T 191
[183] T 190
Mr Mahlook said that they came to a truck stop and a telephone call was made to Nick Ederosi[184] who later arrived and assisted in the recovery of the station wagon.[185] He said that when they got home, B went into the house and then into his room.[186]
[184] T 185
[185] T 186-187
[186] T 188
In the morning, Mr Mahlook said that the two young girls were taken to day care.[187]
[187] T 189
He and B’s mother then took B to the offices of Family and Youth Services (FAYS and what is now known as Families SA) where Mr Mahlook reported the sexual contact that he had witnessed between B and B’s sister the day before.[188] He did not tell them about what had happened at Dry Creek earlier that morning due to “shame” and “guilt”.[189] He denied the suggestion that the reason B was taken to Family and Youth Services was in case B told anyone about what had happened at Dry Creek.[190]
[188] T 189
[189] T 190
[190] T 236
As a result of the complaint made by B at school, police arrested Mr Mahlook. At that stage no allegations of a sexual nature had been made by B. The statement from B only implicated Mr Mahlook in relation to allegations of threats and false imprisonment.
In the record of interview with police Mr Mahlook made admissions to detaining B, taking him to Dry Creek and threatening to kill him. In his evidence in court he admitted lying to the police about the fact that B was tied up and that he was naked.[191] He said that he lied to police about the fact that B was naked because he was “ashamed and embarrassed”.[192] He admitted that he was willing to lie to police to avoid being incarcerated. He denied however, that he was prepared to lie in court about the sexual allegations.[193]
[191] T 192
[192] T 217
[193] T 217
I do not reason from Mr Mahlook’s admitted lies to police that he did so out of a realization that he was guilty of the allegations of sexual intercourse now alleged against him. However, I take into account his admitted lies and his explanations for making them when assessing his credibility as a witness.
Detective Bulmer confirmed that Mr Mahlook had reported to Family and Youth Services allegations of sexual impropriety against B toward B’s sister. Following an investigation, no charges were laid against B.
Detective Bulmer also gave evidence that despite the disclosure made by B to him in September 2006 he considered B was not capable, at that time, of enduring the court process. It was only some years later that B felt he was able to proceed with his allegations, whereupon on 14 July 2011 Detective Bulmer obtained a detailed statement from him surrounding the sexual allegations.
Analysis and Conclusions
As can be seen the entire prosecution case rests entirely on the acceptance of B’s evidence beyond reasonable doubt. There is no independent evidence to support B’s allegations that Mr Mahlook engaged in sexual intercourse with him, as is often the case in such matters.
In this case, it is not disputed that B was driven out to Dry Creek in order to be punished for his alleged misconduct against his sister nor that he was threatened and detained in the process. Mr Mahlook has previously pleaded guilty to charges representing that conduct and has been punished through the imposition of a sentence of imprisonment.
The evidence of discreditable conduct leading up to the sexual allegations was necessary in order to understand the context in which these offences were said to have occurred. The evidence reveals the course of events leading up to and surrounding the charged offences.[194] Without this evidence the sexual allegations made by B would appear totally artificial. The evidence of discreditable conduct applies equally to both counts, given their proximity to one another.
[194] Section 34P(2) Evidence Act 1929.

I considered the probative weight of this evidence substantially outweighed the obvious prejudicial effect it has upon Mr Mahlook and have admitted the evidence only for the permissible use explained by me.[195] I have not used this evidence, nor Mr Mahlook’s admissions of guilt to the non-sexual conduct, to reason that he is the sort of person who would be more likely to have committed the offences with which he is now charged.[196]
[195] Sections 34P(2) and 34R(1) Evidence Act 1929.
[196] Sections 34P(1) and 34R(1) Evidence Act 1929.
The evidence put before me revealed a number of inconsistencies between statements made by B to Detective Bulmer in 2006 and 2011 and the evidence given by B in court. B also mentioned matters for the first time in his evidence. I have already referred to many of these inconsistencies when recounting B’s evidence.
It is well accepted that prior inconsistent statements have the capability of affecting the reliability or credibility of a witness’ evidence given in court.
On occasions B denied or equivocated about statements attributed to him in his police statements, which were later proved to have in fact been made by him.
I have had regard to these matters in assessing B’s reliability and credibility as a witness. Indeed, defence counsel placed much emphasis on the many inconsistencies in B’s version of events, stating that they were not peripheral matters that should have little impact on B’s overall evidence as was submitted by the prosecution.[197]
[197] T 298
The inconsistencies in B’s evidence have concerned me.
I refer to the issue surrounding the taping of B’s mouth, hands and legs. Of even greater concern was B’s evidence surrounding their removal. I am not prepared to accept that B was forced to dig his own grave with his hands taped. This would not only be almost impossible for a young boy to do but there would be no reason why Mr Mahlook would force him to dig with his hands taped. Mr Mahlook accepted that he intended B to believe he was digging his own grave. If that is so, there would be no point in keeping B’s hands tied, thus making the task of digging the grave virtually impossible.
The location of the tape at the site where B was forced to dig as depicted in the video supports Mr Mahlook’s account. I accept Mr Mahlook’s evidence that he removed the tape from B’s mouth and cut it from his hands at this location directly prior to telling B to start digging his grave.
The location of the tape is important circumstantial evidence in this case. It undermines, in a significant way, B’s account generally but, more specifically, in relation to the acts of sexual intercourse. This is because B said that his hands were still taped when the sexual acts were perpetrated upon him, yet he could offer no reasonable explanation for the location where the tape was found by police as opposed to next to the car.
B’s account of the circumstances surrounding the act of anal intercourse also differed from his police statement. In evidence, he said Mr Mahlook parted his buttocks before he inserted his penis into his anus. To Detective Bulmer, B specifically stated that Mr Mahlook did not part his buttocks prior to penetration.
The evidence of B surrounding the circumstances of him walking into the evaporation pond lacked credibility. I have no doubt that he was extremely frightened at what was happening. Indeed, that was the very intention behind Mr Mahlook’s actions in driving B to that dark and isolated location and the accompanying threats.
I was, however, not satisfied with B’s evidence that following the act of anal intercourse he was directed by Mr Mahlook to walk into the water. I accept that he entered the evaporation pond but not at the direction of Mr Mahlook. Once again the location police found the tape supports Mr Mahlook’s account that B dropped the shovel and ran into the pond because he was very frightened. This caused Mr Mahlook to manoeuvre his vehicle so as to shine the lights into the pond to find B, at which time the vehicle became stuck in the drainage ditch.
B’s evidence in relation to the depth of the evaporation pond when he walked into it, is directly contradicted by what is shown of him on the video tape. B is depicted demonstrating to Detective Bulmer, not only the distance he walked into the pond but the depth being only shin height.[198]
[198] Exhibit D1.
A further inconsistency was B’s evidence relating to being struck with the shovel and the threats made about his family following the acts of intercourse, which I have earlier discussed. This inconsistency has also caused me some concern.
I come to comment on the report of B to FAYS. If Mr Mahlook had engaged in sexual intercourse with B as alleged, then, in my opinion, it would have been very risky for him to attend at FAYS with B and B’s mother to report his own concerns of sexualised behaviour by B toward his sister. The likelihood that B would then and there reveal that he had been sexually abused by Mr Mahlook the day before would be extremely high. After all, he did disclose the other serious allegations of abduction and the threats to the police. I am not persuaded by the prosecution submission that Mr Mahlook deliberately fabricated and then reported the allegations of sexual abuse by B toward his sister so as to deflect attention away from his own sexual abuse of B. I am satisfied that something serious must have taken place by B towards his sister for B to have been punished in the manner in which Mr Mahlook accepted he had administered.
The prosecution contended that the punishment extended beyond simply the threats to B’s life, to punishment in the form of sexual intercourse. It was submitted that the fact B allegedly sexually abused his sister was a motive for Mr Mahlook’s perpetration of the sexual acts upon B. That is, so that B would understand the effects of sexual abuse upon others. Mr Mahlook denied these suggestions as to motive and maintained that his punishment was to make B think that he was going to die at Dry Creek.
As reprehensible as Mr Mahlook’s admitted conduct towards B was he consistently denied the sexual allegations. Whilst Mr Mahlook has admitted lying to the police upon his initial arrest in 2006, his evidence of the events that were not in dispute was supported by such independent evidence as existed, namely the evidence found at the crime scene, in particular the location of the tape.
Ultimately, based on the numerous inconsistencies throughout B’s evidence I have been left with a reasonable doubt about whether Mr Mahlook engaged in sexual intercourse as described, with B. Such inconsistencies mean that I cannot accept B as both a reliable and creditable witness to the requisite standard in order to be satisfied beyond reasonable doubt of Mr Mahlook’s guilt.
I wish to emphasize that these comments in no way indicate a view held by me that B is a liar or a dishonest witness. Simply that I have been left with a reasonable doubt on the whole of his evidence.
Even if I was able to reconcile the inconsistencies in B’s evidence with satisfactory explanations, I would still be left with a reasonable doubt about whether the acts of sexual intercourse occurred. This is because I would be left in a position where I had to decide between B and Mr Mahlook, as to who was telling the truth, a decision which I would have not been able to make.
Verdicts
I find Mr Mahlook not guilty of both counts.