R v Marshall
[2012] SADC 78
•22 June 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARSHALL
Criminal Trial by Judge Alone
[2012] SADC 78
Reasons for Decision of His Honour Judge Nicholson
22 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused mentally unfit to stand trial. Trial of objective elements for multiple counts of buggery, two counts of indecent assault and one count of unlawful sexual intercourse involving four complainants.
VERDICT: Count two (buggery) stayed; objective elements of all other counts established beyond reasonable doubt. Defendant found not guilty of all counts (but count two) and declared liable for supervision under Part 8A of the Criminal Law Consolidation Act 1935.
Criminal Law Consolidation Act 1935 Part 8A, s269H; Evidence Act 1929 s34CB, s34M, s59J, s65A, referred to.
R v Marshall [2011] SADC 132; R v N, RC [2012] SASFC 37; R v Young [1923] SASR 35; Carlton and United Breweries Ltd v Cassin [1956] VLR 186, considered.
R v MARSHALL
[2012] SADC 78Introduction
By information dated 27 July 2009, filed in this court, the defendant has been charged with four counts of buggery of the complainant, DQ; one count of indecent assault and one count of buggery of the complainant, DJ; one count of indecent assault and five counts of buggery of the complainant, AF; and one count of rape of, or in the alternative unlawful sexual intercourse with, the complainant, IC. In the cases of DQ, DJ and IC the charged offences are said to be representative of a lengthy course of conduct. All of the alleged offences are said to have taken place between 1971 and 1976.
By way of background, on 21 July 2006 the defendant was found mentally unfit to stand trial in this court, in accordance with the provisions of Part 8A of the Criminal Law Consolidation Act 1935, with respect to a number of sexual offences alleged to have been committed against another complainant during the period August 1973 to October 1975. Following a trial of the objective elements, the defendant was found not guilty of some counts. However the objective elements for two counts were found to have been established beyond reasonable doubt. Whilst the defendant was also found not guilty of these two counts, an order for supervision was made, on 18 December 2007, and the defendant released on licence[1] with a limiting term of six years and six months commencing on that date. Subsequently the information dated 27 July 2009, and now before the court, was filed.
[1] The terms of the licence included strict home detention conditions.
In August 2011 I heard an application on behalf of the defendant for a permanent stay of proceedings with respect to the information dated 27 July 2009. Following that hearing, I made two rulings. I first ruled and recorded a finding that the defendant was mentally unfit to stand trial with respect to the current charges. It was common ground between the parties that the defendant has remained mentally unfit to stand trial at all times since 21 July 2006. Notwithstanding this agreed position, I satisfied myself, on the basis of the available medical evidence, that the defendant’s physical and mental functioning had worsened significantly since the time of the original determination of unfitness to stand trial in July 2006. I was also satisfied, following my own review of the material available, that the defendant remained mentally unfit to stand trial in that his mental processes were then so disordered or impaired that he satisfied, at least the requirements of (b) and (c) of s269H of the Criminal Law Consolidation Act. My second ruling was to refuse the application for a permanent stay of the proceedings.[2]
[2] Some history to the matter, together with my reasons for both rulings can be found in R v Marshall [2011] SADC 132.
Trial of the objective elements
As a result, the matter proceeded in accordance with the provisions of Part 8A of the Criminal Law Consolidation Act to a hearing before me[3] on the question of whether or not the Crown could prove, beyond reasonable doubt, the objective elements of the various offences alleged in the information.
[3] Defence counsel made a further election for trial by judge alone.
When I delivered my reasons refusing the stay, the trial of the objective elements was listed for hearing for a period of five days. This was on the understanding, at the time, that the four complainants and some police witnesses, at least, would be called to give evidence. Shortly prior to the commencement of the trial, the court was advised that no oral evidence was to be called and that the trial would proceed by way of documentary evidence only.
On the morning of trial, the Crown entered a nolle prosequi with respect to count 13 on the information (the charge of rape) and indicated that it would proceed only with the alterative charge of unlawful sexual intercourse (count 14) with respect to the complainant, IC.
Senior counsel for the defendant then advised the court that because of the factors that led to the finding of unfitness to stand trial, the defendant had only a limited ability to instruct counsel and that, in the circumstances, counsel found himself unable to properly cross-examine any witnesses if they were called. Counsel also indicated that various other matters had led him to the view that the prolongation of the proceedings was not in the interest of his client.
The trial proceeded by the Crown tendering a number of exhibits, without opposition, and without any requirement on the defendant’s part, for any witness to be presented for cross-examination. The following materials were tendered.
(i)Exhibit P1 – a book of documents containing, inter alia, various witness statements and declarations by each of the complainants, together with a number of miscellaneous documents said to be the sources for a series of further facts relied on by the prosecution as set out in tab one of exhibit P1.
(ii)Exhibit P2 - a bundle of coloured photographs of a house in which, on the Crown case, the accused lived at the time of the alleged offending.
(iii)Exhibit P3 - a number of photographs of an address in Gilberton where, on the Crown case, count 1 is said to have occurred and a number of photographs of the premises previously known as the Cottage Theatre from which, on the Crown case, the defendant operated his theatre group at the time of the alleged offending.
(iv)Exhibit P4 - an original brown photograph album containing personal photographs belonging to the defendant.
The charged offences
The offences and their particulars as charged on the information are as follows.
First Count
Statement of offence
Buggery. (Section 69(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Richard Marshall between the 30th day of November 1971 and the 26th day of February 1972 at Gilberton, committed an act of buggery upon DQ, aged under 12 years.
Second Count
Statement of offence
Buggery. (Ibid).
Particulars of offence
Richard Marshall between the 9th day of November 1972 and the 1st day of August 1974 at Renmark, committed an act of buggery upon DQ, aged over 12 years.
Third Count
Statement of offence
Buggery. (Ibid).
Particulars of offence
Richard Marshall between the 27th day of February 1973 and the 25th day of May 1974 at Kent Town, committed an act of buggery upon DQ, aged over 12 years.
Fourth Count
Statement of offence
Buggery. (Ibid).
Particulars of offence
Richard Marshall between the 1st day of August 1974 and the 1st day of October 1974 at Morialta or another place in the said State, committed an act of buggery upon DQ, aged over 12 years.
Fifth Count
Statement of offence
Indecent Assault. (Section 69(1)(b)(iii) of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Richard Marshall between the 17th day of June 1974 and the 31st day of December 1974 at Kent Town, indecently assaulted DJ, a male person aged 13 years.
Sixth Count
Statement of offence
Buggery. (Section 69(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Richard Marshall between the 17th day of June 1974 and the 31st day of December 1974 at Malvern, committed and act of buggery upon DJ, aged 13 years.
Seventh Count
Statement of offence
Indecent Assault. (Section 69(1)(b)(iii) of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Richard Marshall between the 20th day of March 1975 and the 25th day of May 1975 at Malvern, indecently assaulted AF, a male person under the age of 12 years.
Eighth Count
Statement of offence
Buggery. (Section 69(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Richard Marshall between the 20th day of March 1975 and the 25th day of May 1975 at Malvern, committed an act of buggery upon AF, aged over 12 years.
Ninth Count
Statement of offence
Buggery. (Ibid).
Particulars of offence
Richard Marshall between the 20th day of March 1975 and the 25th day of May 1975 at Malvern, committed an act of buggery upon AF, aged over 12 years.
Tenth Count
Statement of offence
Buggery. (Ibid).
Particulars of offence
Richard Marshall between the 20th day of March 1975 and the 25th day of May 1975 at Malvern, committed an act of buggery upon AF, aged over 12 years.
Eleventh Count
Statement of offence
Buggery. (Ibid).
Particulars of offence
Richard Marshall between the 20th day of March 1975 and the 25th day of May 1975 at Malvern, committed an act of buggery upon AF, aged over 12 years.
Twelfth Count
Statement of offence
Buggery. (Ibid).
Particulars of offence
Richard Marshall between the 20th day of March 1975 and the 30th day of September 1975 at Malvern, committed an act of buggery upon AF, aged over 12 years.
Thirteenth Count
Not proceeded with.
Fourteenth Count
Statement of offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Richard Marshall between the 9th day of December 1976 and the 31st day of December 1976 at Malvern, had unlawful sexual intercourse with IC, aged 14 years, by inserting his penis into the anus of that person.
The particulars of each charge
Each of the complainants gave evidence about when and where he remembered each alleged charged offence as having occurred. This evidence, on occasion and in part was, to some understandable degree, of a general nature lacking certainty. It does not come as any surprise that each complainant would have difficulty remembering in detail the time frames within which such events are said to have occurred in the order of 30 years ago. However, it is desirable that each count on an information be particularised as clearly as possible. The count should be framed in such a way as to disclose when the offence is said to have occurred. In some cases a question arises where the proof of the date of an offence might be an essential feature of the charge itself. However, that is not the case here except to the extent that, for the Crown to succeed, I will need to be satisfied that each complainant was under 21 at the time of any proved acts of buggery and indecent assault and under 17 with respect to any proved act of unlawful sexual intercourse. The general principle is that so long as it is clear that a charged offence is identified by certain events or on a certain occasion then it does not matter if the date of that occasion is misstated on the information, or even if it cannot be clearly identified by date at all.
If I were to be satisfied that a complainant has told the truth about an incident then I can convict the accused of that count. I would not necessarily need to be concerned about any discrepancy between a complainant’s evidence about when it happened and the dates that appear on the information. However, this does not mean that I necessarily would not take notice of such a discrepancy.
If I were to take the view that such a discrepancy or the evidence generally of a complainant concerning a particular count under consideration damages his credit then, of course, I would need to take that into account in deciding whether or not that complainant has told the truth about the count in question or indeed about any other allegations, charged or uncharged, of sexual impropriety.
Objective elements of the offence of buggery
During the period 30 November 1971 to 30 September 1975 (counts 1 to 4, 6 and 8 to 12) the law made it an offence to commit buggery. The offence, as it then stood, consisted of penetration by the penis of the anus of another person. Any degree of penetration would be sufficient and penetration for even a slight period of time would be sufficient. A complainant under the age of 21 was incapable, at law, of consenting to such an act. Given the alleged age of each complainant, DQ, DJ and AF, at the relevant times, each was incapable of consenting to any such activity. For each of the counts alleging buggery, the objective elements that the Crown must establish beyond reasonable doubt are the penetration by the defendant’s penis of the complainant’s anus and that, at the time, the complainant was under 21.
Objective elements of the offence of indecent assault
Between 17 June 1974 and 25 May 1975 (counts 5 and 7) the law made it an offence to indecently assault a male person. The three objective elements of the offence as charged in this case, are an unlawful touching,[4] being one that was accompanied by or occurred in circumstances of indecency and that the complainant was a male person. Any such conduct would be unlawful in the event that the complainant at the time was under 21 years of age; such a person was incapable of consenting to the type of activity that otherwise would comprise an indecent assault.
[4] Ordinarily any such touching must be intentional but this aspect is subjective.
There are many kinds of conduct about which people might differ as to whether it is or is not indecent. Some things might be a matter of taste, but putting those matters aside, there are other kinds of conduct which by any reasonable contemporary standards, can only be described as indecent. Ultimately, it is a matter for the trier of fact to determine, by reference to those standards, whether the trier of fact is satisfied that any proved conduct was indecent.
Unlawful sexual intercourse
On 9 December 1976 and thereafter, it was an offence for a person to have sexual intercourse with a person of or above the age of 12 years and under the age of 17 years. By count 14, the Crown alleges that the defendant engaged in unlawful sexual intercourse with IC during the period 9 December 1976 to 31 December 1976 by inserting the defendant’s penis into the anus of IC. There are two elements to this offence; first, that the defendant had sexual intercourse with the complainant and second, that the complainant was, at the time, of or above the age of 12 and under the age of 17. For this purpose, the law provided an extended meaning of sexual intercourse. It included the insertion of the penis of one person into the anus of another. Once again, any degree of penetration is sufficient and penetration for the slightest period of time is sufficient. Again, consent on the part of the complainant is no defence provided that the complainant, at the time of the activity, was under the age of 17. These two elements are both properly to be characterised as objective elements and must be established by the Crown in this case, if it is to succeed with count 14.
General Observations
I have scrutinised with great care each of the witness statements and declarations presented by each of the four complainants. In addition I have had regard to the other materials relied on by the Crown; the photographs in exhibits P2, P3 and P4 and the other witness declarations and documentary evidence to be found in tab 6 of exhibit P1. This additional material is of some, but limited, assistance to the Crown case in that it serves to confirm or corroborate certain aspects of a complainant’s evidence; locations where each spent time with the defendant, time periods in which each had an involvement with the defendant through the Cottage Theatre activities and other persons who were part of the defendant’s and each complainant’s circle at relevant times. I say that this material is only of limited assistance in that it lends support for a finding that each complainant has been consistent as to various aspects of his story. Nevertheless, the Crown case still is entirely dependent on an acceptance of the relevant complainant’s evidence concerning the central allegations relating to each charge. No other eye witnesses have given evidence of these critical events.
The defendant did not seek to cross-examine any of the complainants. I accept that because of the defendant’s mental and physical state at the time of trial, counsel is likely to have found it difficult to obtain sufficient instructions to enable an alternative case to be put to each complainant. Nevertheless, that would not of itself have prevented a robust testing, directed at the internal consistency or otherwise of each complainant’s allegations, in cross-examination. Defence counsel made no submission concerning the issue of whether a complainant’s statement should be accepted as reliable or unreliable.
The alleged offending is very old. This, together with the defendant’s mental state, is likely to have caused the defendant significant forensic disadvantages in being able to challenge the respective accounts of each complainant in any event. Likely forensic disadvantages include:
(i)Leaving aside any questions of cross-admissibility, there is no independent support for any complainant’s account. All I have is each complainant’s evidence standing alone.
(ii)The overall delay has led to each complainant being unable to remember some matters of detail. The factor will have disadvantaged the defendant, independently of his mental state, by rendering it more difficult to test a complainant’s account as to matters of detail.
(iii)Had there been a prompt complaint made known to the defendant, he would have been in a position to remember back to the relevant time and remember what, if anything, happened.
(iv)Had there been a prompt complaint, the defendant might have been in a position to remember who he was with and to produce oral or documentary evidence that may have challenged the evidence of a complainant (although, it must always be borne in mind that the accused does not have to prove anything).
The circumstances call for a direction to myself in terms as required by s34CB of the Evidence Act 1929. I have taken these potentially significant forensic disadvantages into account when scrutinising the evidence relied on by the Crown. I accept that I am to scrutinise the Crown evidence with care and, as some authorities would have it, with great care.[5]
[5] In considering the approach mandated by s34CB of the Evidence Act I have had regard to the observations of the majority (Gray and Sulan JJ) and of those in the separate judgment by Peek J in the recent decision of R v N, RC [2012] SASFC 37.
I also remind myself that the Crown bears the onus of proving the objective elements beyond reasonable doubt, that the defendant is presumed innocent unless and until the Crown does so, that the defendant bears no onus at all and that no inference adverse to the defendant is to be drawn from any failure to give evidence, to cross-examine or to make submissions. I also remind myself that each count, ordinarily, is to be considered separately from each of the other counts and only by having regard to the evidence relevant to the particular count under consideration. I say “ordinarily” because the Crown has submitted that, in this case, there is a significant underlying unity to all of the counts such that there is cross-admissibility with respect to some of each complainant’s evidence.
There is evidence of an initial complaint by DQ, DJ and AF but no evidence of initial complaint by IC. I will deal with the evidence concerning complaint in due course. However, I remind myself of the direction required by s34M(2) of the Evidence Act. I also remind myself that there are only limited uses to which evidence of initial complaint can be put, in accordance with s34M(3) and (4).
In addition to the charged offences concerning each complainant, the Crown alleges that the defendant engaged in a course of conduct with each complainant involving uncharged acts of similar kind. The evidence of uncharged acts was also admitted without objection. However, there is only a limited use to which such evidence can be put and only if I were to accept its truthfulness and reliability beyond reasonable doubt.
In this case I have heard this evidence because it is of potential help in evaluating each complainant’s evidence. Hearing the whole of the allegations might better enable me to assess each complainant’s evidence. The whole of the alleged course of events provides a context in which it is said that the charged incidents occurred. In a sense, the more evidence I have of the interaction between each complainant and the defendant, the better opportunity I have to evaluate the evidence and determine to what extent, if any, I am prepared to rely on it. The whole sequence of events throws light on the nature of the relationship which each complainant claims existed between himself and the defendant. In this respect, the information in the various declarations provided by each complainant concerning the nature, in general, of this relationship with the defendant and to which I have had regard was copious. It has only been very briefly summarised in these reasons.
I must consider the evidence of any proved uncharged incidents along with the evidence going directly to the charges in determining what, if any, weight I am prepared to place on each complainant’s evidence. Evidence of the uncharged incidents is available as material which may assist in concluding that a complainant’s evidence is reliable. Alternatively, it may assist in showing inconsistency or unreliability or inherent improbability in a complainant’s evidence, and thereby raising doubt about one or more of the charges.
The relevance of the uncharged incidents can be described more specifically. In particular the prosecution is entitled to point to this evidence as:
(i)tending to explain why a complainant did not make a complaint when the charged incidents were said to have occurred;
(ii)tending to explain why the defendant expected a complainant’s cooperation and silence in the face of what he said was occurring;
(iii)tending to explain why a complainant apparently showed no or limited shock or distress at what he described as the defendant’s conduct on the charged occasions;
(iv)tending to explain any apparent ambivalence in a complainant’s feelings towards the defendant at the time which may make explicable the nature and duration of his relationship with the defendant;
(v)tending to explain the background against which the offences or the first offence charged came about, where a complainant’s evidence of the offences charged or the first offence charged may otherwise have been unreal or unintelligible or not fully comprehensible; and
(vi)tending to explain why a complainant might be unclear about precise dates and details of offences charged.
I remind myself that there are certain impermissible uses of such evidence. The fact that allegations are made about a number of occasions does not in any sense absolve me from the task of determining whether the objective elements of the charges themselves are made out. It would be wrong for me to say in effect: “I am satisfied that somewhere along the line sexual improprieties occurred and I will therefore find the objective elements of the charged offences established.”
It would be wrong to conclude from other conduct of the defendant that he is the sort of person who would be likely to commit the offences with which he is charged. It is the evidence presented in proof of the charges themselves which is the critical evidence in this trial. Evidence of other uncharged incidents is given only to assist in the evaluation of the evidence going directly to the charges.
Summary of the complainants’ evidence as contained in their various declarations (exhibit P1)
In this section from time to time I refer to separate accounts of a particular incident given by a complainant in a later statement or statements. Such additional accounts, to the extent that they are no more than prior consistent statements are not relevant to and, strictly, inadmissible in, the Crown case. However, the additional accounts are of potential relevance to the extent that they demonstrate an inconsistency in recollection which might bear on the credibility or reliability of the account given by a complainant.
Evidence of DQ – counts one to four inclusive
DQ states that he was born on 27 February 1960. I accept that he would have been 11 during the period particularised for count 1, and over 12 but under 15 during the periods particularised for counts 2, 3 and 4.[6] In May or June 1971 he became friends with a girl named Vanessa Cave with whom he went to school. He remembered that she was “laid up” and remained away from school for about three months. He could not recall the nature of her illness but he began to visit her at home and took her school work to do from time to time. Vanessa Cave was the younger sister of Phillip Cave, who DQ thought at the time to be in his mid-20s. Mr Cave formed a friendship with DQ and introduced DQ to conduct of a sexual nature. Mr Cave thereafter engaged in sexual conduct, including of a penetrative nature, with DQ on numerous occasions during 1971. Towards the end of 1971 Mr Cave started to introduce DQ to people that Mr Cave said were involved in the entertainment industry.
Count one
[6] Strictly, at common law the declarant’s own evidence of his date of birth is hearsay and not admissible to prove the truth of that assertion, R v Young [1923] SASR 35; Carlton and United Breweries Ltd v Cassin [1956] VLR 186 and, in the case of all the complainants in this trial, there has been no compliance with s65A of the Evidence Act 1929. Nevertheless, the point was not taken by counsel for the defendant and I do not understand this to be a matter genuinely in dispute. Accordingly, I am prepared to dispense with compliance with the rules of evidence insofar as is necessary, pursuant to s59J of the Evidence Act.
Mr Cave introduced DQ to the defendant towards the end of 1971, probably in December of that year. DQ understood the defendant to be a Channel 7 television personality who presented children’s television shows in Adelaide. He was impressed “out of sight” at meeting a TV star. Mr Cave told DQ that the defendant was his friend, they worked together for Channel 7 and that whilst Mr Cave worked behind the scenes, the defendant worked in front of the camera. At this time, according to DQ, the defendant lived in a house in Kent Town, Adelaide, “near the ABC Broadcasting Studios”.
On the day he first met the defendant, another man named Peter was also at the house. DQ understood Peter to be the defendant’s driver or personal assistant. This man later came to be known to DQ as Peter Leith or Peter Marshall.[7] At some stage both Mr Cave and Peter disappeared leaving DQ alone with the defendant. The defendant talked with DQ about the sexual things that he had been doing with Mr Cave and asked if DQ would be interested in doing the same things with him. DQ agreed. They got into the defendant’s bed; both were naked. The two of them then engaged in masturbation of each other after which the defendant performed oral sex by putting DQ’s penis in the defendant’s mouth. The defendant then, with the assistance of lubricant applied to DQ, performed anal sex. He did not use a condom and he ejaculated inside DQ’s anus.
[7] Each of the complainants state that, through their association with the defendant, they also came into regular contact with a close associate of his, a younger man, variously referred to as “Peter”, “Peter Leith” and “Peter Marshall”. Throughout these reasons I will refer to this person indiscriminately by each of these names.
The defendant then told DQ that the man called Peter was jealous and upset and asked DQ if Peter could have anal sex with DQ. DQ agreed and this occurred. Later that day, Mr Cave collected DQ from the house and returned him to his own home.
Count 1 relates to this first visit and the act of buggery that DQ has said the defendant committed against him.
The description given above of the events leading up to and of the allegations pertinent to count one comes from DQ’s statement given to the Victorian Police on 18 February 1997. DQ also referred to this incident in two other statements. In a statement dated 8 April 2005 described as addendum one, DQ again gave an account of that first meeting.[8] DQ provided a third description of this first meeting in another statement given to the South Australian Police.[9]
[8] At pages 7-8.
[9] Dated 20 December 2005 at pages 21 and 44.
I have scrutinised with great care the various accounts given that are said to relate to count 1 on the information. The later accounts are truly supplementary. In those accounts additional information is provided but the essential allegations concerning the lead up conversation about what DQ had done with Phillip Cave in the past, whether or not he would be prepared to do it with the defendant and the fact that sexual abuse occurred during that first visit, do not vary. The later accounts do reveal some differences or inconsistencies. In the earliest account (1997) DQ described the first meeting as being at the defendant’s house in Kent Town, whereas in the April 2005 addendum one statement it is at James Street, Gilberton. In the 20 December 2005 statement[10] DQ again described this incident as occurring in the defendant’s house at Kent Town. In the first (1997) statement DQ also described the house at Kent Town as being “near the ABC Broadcasting Studios” a description which is more readily applicable to the suburb of Gilberton. However, Kent Town, whilst not adjacent, is only one or two suburbs removed from Gilberton. Furthermore, over the relatively lengthy period (3 years or more) that DQ was involved with the defendant, they were together at a number of locations around inner-Adelaide including the defendant’s house at 20 James Street, Gilberton; a house at 163 Wattle Street, Malvern; and the Cottage Theatre when it was originally located in Dequetteville Terrace, Kent Town, part of which was later taken over by the theatre and used as living quarters. Finally, DQ was only 11 at the time of the first meeting with the defendant and was taken to the house by Phillip Cave. Whilst it is a matter I have taken into account, the fact that there is some confusion in the evidence of DQ as to the precise location of the defendant’s house at which the first meeting and the allegations underpinning count 1 are said to have taken place, is not such as to cause me, on its own, to doubt the reliability of the account given by DQ concerning the essential allegations.
[10] At pages 21 and 44.
In addition, in his 8 April 2005 addendum one statement, DQ included additional information such as, for example, the fact that on this first introduction he met the defendant’s great dane called “King” and in the December 2005 statement, DQ said that these initial events may have occurred in early 1972 because it was possible that he had turned 12, whereas previously he had indicated late 1971.
Again, discrepancies of this nature have not caused me to doubt the reliability of the account given by DQ insofar as they relate to the essential allegations concerning any of counts 1 to 4 inclusive.
DQ regularly attended the Channel 7 studios with Mr Cave and the defendant. DQ said that he was treated well at the studio and got to meet quite a few television personalities. He was greatly impressed. He met a man called JH who worked on the defendant’s show which was called “Seven’s Super Saturday”. JH was a type of magician who was called “The Whiz”. Another character he met was “Sammy the Seagull” and also a female co-presenter who DQ thinks was called PT. During the same period the defendant was involved in a theatre restaurant called the “Little Theatre” that was located, DQ thinks, in Kent Town. According to DQ over the next three years, following his first visit with the defendant, he would have had anal sex with the defendant over 100 times and on a weekly basis. This took place usually at his home, but also at the defendant’s theatre restaurant.
Count two
During the school holidays of June 1973, DQ went on a houseboat trip with the accused along the Murray River. The man called Peter also went. The trip lasted for about a week. During the trip, the defendant had anal sex with DQ up to three to four times a day. According to DQ, on each occasion there would be mutual masturbation followed by oral sex being performed on DQ and then the defendant and Peter Leith would anally penetrate him. Neither used a condom and each would ejaculate inside him. The defendant always had sex with DQ first and then Peter Leith would have sex with him straight afterwards. The sexual encounters occurred in the various beds in the houseboat cabins, the general cabin area, the salon area, the upper deck and in the wheelhouse.
Again, DQ has given a number of accounts of the houseboat holiday.[11] Again, DQ has provided a significant and persuasive level of detail. He recalled a late afternoon or early evening when Peter Leith arrived at his mother’s home and asked permission to take DQ with him on a houseboat cruising on the River Murray. DQ recalled being reluctant, at first, to go because he suspected that the holiday would simply be about him being sexually abused by the defendant and Peter Leith. He was allowed to take a fishing rod that his father had bought for him which, unhappily, was lost overboard. DQ recalled that the defendant promised to replace it with a similar fishing rod, but this never eventuated.
[11] Statement of the Victorian Police dated 18 February 1997 at page 12, statements to the South Australian Police of 8 April 2005 (addendum one) at page 8, of 20 December 2005 at page 29 and of 6 September 2010 at page 2.
DQ remembered another quite good looking, slightly older and more developed boy also went on the holiday. In his Victorian statement (1997), DQ suggested that the boy might have been named RK. However, in his later statement to the South Australian Police (addendum one, April 2005) he said that this was wrong and that this name had been suggested to him by his sister sometime after the event when they discussed the incidents that he had been through. Oddly, in the December 2005 statement DQ at first[12] said that he had no recollection “in my mind of how the trip was organised, although assume that Ric spoke to my mother”. However, only some four lines further on DQ referred to a vague recollection of Peter Leith arriving one night to seek his mother’s permission. In his April 2005 addendum one statement[13] DQ again expressed a recollection of Peter Leith arriving and speaking to his mother (as described in the 1997 statement to the Victorian Police).
[12] At page 29.
[13] At page 8.
In the 1997 statement,[14] DQ described the houseboat holiday as occurring in the school holidays in June 1972 and in the April 2005 addendum one statement[15] he also described the houseboat trip as occurring in the June school holidays in 1972. However, in the December 2005 statement[16] he stated that he thought the holiday occurred in the Christmas holidays of 1972, just before he turned 13. “It was hot and therefore possibly Christmas holidays.” He goes on in that statement to say that he vaguely recalled Peter Leith arriving one night and asking his mother if he could go away with the defendant and Peter for a period of time on a houseboat.
[14] At pages 11-12.
[15] At page 8.
[16] At page 29.
In his December 2005 statement, DQ said this.
I distinctly recall both Marshall and Leith having anal sex with me several times in each of these areas on the boat. It is difficult to state the order of where sex occurred. I don’t recall being abused in the bathroom. It is difficult to say how many times in each area they had sex with me and in what order of locations the offences occurred in. Marshall always had sex with me first then Leith straight away afterwards.
All of the sex was anal penetration whereby I was lying down on my side naked or kneeling down on the floor.
. . . .
It is difficult to recall specific details of how Leith and Marshall got me into a position of abusing me or what they were wearing and how they became naked and with their penises exposed. They were mostly naked when I was abused. It was the middle of summer and I was walking around the boat with just shorts and swimmers on. Most of the abuse occurred in the salon area. The abuse would just happen.
DQ provided details of other, non-sexual, activities engaged in during the houseboat trip.
On the boat when I was not being abused I would fish or go hunting. I took my air rifle which was a .177 calibre model 10 firearm my father bought for me. I would also walk along the riverbanks. We would cruise up and down the river in the boat and I would simply sit and watch as we did . . . the Murray was in flood at the time and I remember at one stage going through a loch. . . . on the boat Ric was involved in the food preparation more so than Peter. We ate food such as salads and chops.
DQ returned to the timing of the houseboat visit in his statement of 6 September 2010. He said that his father started to get ill about 18 months before he passed away in August 1974 and that the houseboat trip occurred after his father started to be ill and therefore must have occurred in 1973 or 1974. He said there was only ever one houseboat trip with Ric Marshall and Peter Leith. His earlier statements to the effect that Peter Leith came to seek permission to take him in the June holidays of 1972 were incorrect because his father had started to get ill at the time Peter Leith asked for this permission.
It is not disputed that relevant state government records indicate that the River Murray flooded in 1973, 1974 and 1975.
DQ said in his 6 September 2010 statement that after the houseboat trip he kept in touch with the defendant and Peter Leith for only a short time, up until about the time that his father died in August 1974.
As an indication of the level of care taken by DQ in an effort to ensure accuracy I quote from the 6 September 2010 statement.[17]
On page 31 of my 46 page statement dated 20 December 2005, there is mention of an incident where Ric Marshall was fondling my penis and at the same time Peter Leith was fondling my penis. This is incorrect, it should read that Peter Leith was fondling Guy’s penis. Ric was fondling my penis at the same time as Peter was touching Guy. I don’t recall any occasion when both Ric and Peter were sexually abusing me or touching me at the same time. There is only one time when Ric and Peter suggested we have a foursome and on that occasion I said that I didn’t want it to occur and Guy didn’t either. That was in the main salon area of the houseboat. I have made reference to this on page 32 of my 46 page statement dated 20 December 2005. There were never any foursomes, other than mutual masturbation in the same room, after which Guy and I would pair up with either Ric and Peter and go into separate rooms and have sex.
[17] At page 3.
DQ, throughout his lengthy statements, gives a detailed account of constant sexual abuse by both the defendant and the man called Peter Leith at times on a daily basis and other times on a weekly basis over a very long period of time. The abuse involved masturbation, oral sex and anal sex. Nevertheless, the above passage indicates an earnestness on the part of DQ to ensure that what he had told the police was accurate.
On my review of the various accounts given by DQ of the houseboat holiday, additional information is supplied and some inconsistencies and discrepancies are revealed, particularly concerning the timing of the holiday. However, there is nothing which causes me to doubt the reliability of DQ’s account concerning the allegations of repeated sexual abuse by the defendant during the one house boat holiday they went on together. However, on the available evidence, I have been unable to distinguish one act from any other act. The allegation, as particularised for count 2, lacks specificity. If I were to find the objective elements for count 2 established, the defendant would not know which act had been proved. I have not been able, either by reference to time, location on the boat, nature of act or any other discriminator, to isolate the act of buggery said to be the subject of count 2. The count is bad for uncertainty (duplicity). In the circumstances, I do not propose to acquit but to stay the prosecution of count 2.
Count three
DQ said that he saw the defendant about two to three times a month and generally over weekends until sometime in about mid-1974. On most weekends after June of 1972 he went to work at the defendant’s theatre, which at this time was at Dequetteville Terrace, Kent Town. The work that DQ did involved things like moving props and handing out the tickets at front-of-house. On each of these weekends he was anally penetrated by the defendant both before and after each show. He also remembered anal sex occurring during intermission sometimes. According to DQ, by now he was used “pretty much as a sex toy” by a group of people with whom he had become involved through Phillip Cave and the defendant. Notwithstanding that anal sex occurred at the Cottage Theatre on many, many occasions, DQ was able to identify one particular occasion.[18]
There was an occasion where I was waiting behind the stage at the Cottage Theatre near the curtains when Marshall had anal sex with me when I was kneeling on the floor. I don’t know if anyone else was around. Ric was ready to go on stage to perform in either the Fiddler on the Roof or the Sound of Music – it was probably for the Sound of Music and was dressed up in a costume. He played the character of “Tople” (sic) in Fiddler on the Roof. In the Sound of Music he played the character of Baron von Trapp.
Count four
[18] Statement of 20 December 2005, page 27.
DQ also described a particular occasion when the defendant engaged in anal sex with him when they were in a car at the Morialta Falls.[19] DQ’s father died on 20 August 1974 after which his mother returned to the United Kingdom. However, DQ went to live with his step-sister and her husband. They forbad him seeing the defendant or attending the Channel 7 studios. However, on one occasion after his father had died, being sometime in August or September 1974, DQ went to visit the defendant either at Channel 7 or the theatre. The defendant took him to the Morialta Falls National Park in the Adelaide Hills. DQ told the defendant that his step-sister might now be aware of what was going on to which the defendant replied “that if [DQ] ever told anyone about the things [they] had done that [DQ] wouldn’t like what happened to [him].” The defendant then had anal sex with DQ, with DQ kneeling on the front seat of the car, facing the window, and the defendant penetrating him from behind. DQ described this as being the last occasion when the defendant had anal sex with him and the sex as being more forceful than had occurred previously.
[19] Victorian Police statement 1997, page 15.
It was soon after this last occasion of abuse at the Morialta Falls that his step-sister and brother-in-law took him to see a high school counsellor whose name DQ does not know. DQ saw this counsellor for about five sessions after school on a once-a-week basis during the period between his father dying, in August 1974, and DQ leaving for the United Kingdom in November 1974. As it happened, according to DQ, the counsellor himself also sexually abused him. During the first counselling session, DQ disclosed to the counsellor that he had been sexually abused by four men associated with Channel 7 and the theatre group. During the second session the counsellor asked for more detail and asked DQ to show him what had occurred. DQ pulled his trousers down and showed the counsellor how he would masturbate himself, at which point the counsellor then pulled his own trousers down and masturbated in front of DQ. During the third session, again, under the pretext of trying to assist DQ, the counsellor had anal sex with DQ in the school library after school hours.
He asked if he could try on me what actually happened. He put it all over in a pretext of helping me. It occurred to me that maybe he was trying to help although it did seem a bit strange. I had been abused by so many people for so long that I thought maybe it really was his way of understanding. I felt embarrassed to really show him what happened in the administration office, so I suggested that we go to the library.
DQ then described in some detail an act of anal intercourse perpetrated on him by the school counsellor.
I mention these events with the school counsellor because they offer a readily understandable explanation as to why no attempt has been made to adduce evidence from the school counsellor in corroboration of this initial complaint evidence given by DQ.
As recorded in DQ’s statement dated 6 September 2010, DQ was asked to comment on a number of photographs. He recognised a photograph of a house that looked similar to the defendant’s house he visited in James Street, Gilberton. The photograph he was shown is in fact a photograph of the defendant’s former house at 20 James Street, Gilberton.[20] He identified from another photograph, what looked to be the front of the Cottage Theatre as he remembered it. That photograph was in fact the front view of 3 Dequetteville Terrace, Kent Town where the theatre was once located.[21]
[20] Statement of Peter Wilkinson dated 1 September 2010, exhibit P1.
[21] Statement of Peter Wilkinson.
DQ was also shown the booklet of numbered photographs, P2. He recognised the first four photographs as being of a house at 163 Wattle Street, Malvern, which was the house that the defendant and Peter Leith moved to after James Street. Photographs one to four are, in fact, photographs of 163 Wattle Street, Malvern.[22] In his second addendum statement of 8 April 2005[23] DQ refers to a vague recollection of the home in Wattle Street, Malvern, as being a house that he visited during the time that the abuse was occurring. DQ was shown various other photographs from amongst those in evidence and was able to identify pictures of the defendant at or about the time when the abuse was occurring, pictures of a car that he remembered the defendant driving, pictures of the dog, “King” and pictures of Peter Leith.
[22] See the witness statement of Ashley John Jones.
[23] At page 6.
On the fourth page of the photograph album seized by the police from the defendant’s house[24] is a photograph of a snake in water. DQ recalls that he was on the houseboat at the time when this photograph was taken by Peter Leith. In another photograph he was able to identify the fishing rod that he said had been taken on the houseboat trip but lost overboard. DQ identified various other photographs as having been taken on the houseboat trip.
[24] Exhibit P2.
Evidence of DJ – counts five and six
DJ has provided four statements dated 13 April 2007, 10 June 2008, 6 September 2010 and 5 August 2011. In his first statement he deposes to being born on 17 June 1961. For the reasons previously explained,[25] I accept that he would have been aged 13 during the periods particularised in counts 5 and 6.
[25] See fn 6 above.
DJ’s parents were migrants from the United Kingdom. They moved from Whyalla to Port Noarlunga when he was about three or four years of age. He lived at Port Noarlunga for the next 20 years or so. From about the age of eight (in 1969) DJ took an interest in theatre and became involved in a local amateur theatre company. A few years later, when he was about 13 or so (that is, sometime after June 1974) his mother brought to his attention the fact that auditions were being held at the Cottage Theatre in Kent Town for a musical play, Camelot. DJ’s mother drove him into the city so that he could audition for a part. The defendant was to be the producer and main star of the show and a man called Peter Leith was the stage manager.
DJ was offered a part in the production and was required to take part in eight performances per week. However, he had difficulty in getting home to Port Noarlunga after rehearsals and so Peter Leith and the defendant invited him to stay at their house in Wattle Street, Malvern.
I was on in the first scenes on stage, in the first scenes, in the scenes in the middle of the show and scenes at the end of the show. So I couldn’t leave early or anything like that, and in those days the Noarlunga Centre train had not been built so it was a Briscoe’s bus ride to come into the city to do the show but prior to the show starting obviously there’s a rehearsal process and the rehearsals took place in a venue at the back of a shop front in Duthy Street. I used to get dropped off from Port Noarlunga to Duthy Street which, I’m not a 100% sure what the suburb is called but it’s close to the inner city, not far from Urrbrae which is an agricultural college but I’m not a driver so I don’t know exactly how far it is. Both my parents were quite supportive in terms of dropping me off and picking me up. But because it was so far and my father worked very long hours and my mother did shift work there were times when it was difficult for me to actually either attend a rehearsal or to stay for the full length of a rehearsal and when I suggested to the stage manager Peter Leith, the man who I was introduced to as Peter Leith. His (Peter’s) opinion was that I needed to be at the rehearsals and I needed to be there for the full time and if it was necessary they’d find somewhere for me to stay overnight on occasions so that it wasn’t going to cause a problem. As it turned out they extended an invitation for me to stay with them at their place, they had a rather large house in Wattle Street, not very far from Duthy Street. Peter and Ric shared the house together.
DJ described in great detail his experiences in both rehearsing for and performing in Camelot and the activities in which members of the theatre group engaged together during the season. He described various interactions with the defendant that occurred in the backstage section of the Cottage Theatre. DJ described in some detail the physical layout of the Cottage Theatre and the backstage area and the defendant’s dressing room.
Count five
The first incident of a sexual nature that DJ recalled occurred when he was 13 in late September or early October of 1974. One of the things that the page boys in Camelot (DJ and another young lad) were required to do was to accompany the defendant to his dressing room during breaks. DJ quite liked the defendant:
because he wore stylish clothes and he was on TV and he was a big imposing sort of a character but kind of non-threatening. He could be threatening just by his presence because he was the director of the play now and the star of the play, you know he wore make up he was a person who wore make up and explained that he’d wore the make up because he was on television. He always smelled of Aramis aftershave, Aramis is a brand of aftershave or cologne but it was a nice clean sort of smell (although the smell of it always makes me feel very anxious these days) and he was always well presented. Tic Tac mints were relatively new on the market and he often had them and would sometimes offer them. His breath and mouth always smelt and tasted of Tic Tacs and he had a good sense of humour. . . . He communicated with me though (sic: as though) I was older and more emotionally developed than what I actually was. It made me feel special, special as if I were an adult.
On one particular day DJ had been helping with tidying up as part of the bumping in process and was invited into the defendant’s dressing room. The defendant locked the door behind DJ.
I remember there were at least two locks on his dressing room door, you stepped down a step into the dressing room so it felt like a really different environment to the rest of the place. His dressing room had a big old seat, an armchair and had his make up and mirror with the lights around it and I don’t believe there were any windows in his dressing room. I would have been about 5” tall, and a fairly lightweight sort of kid probably about 6 stone.
DJ described in his first statement[26] how the defendant talked to him about people being able to love whomever they wished and to love freely. The defendant spoke to DJ about Peter Leith, and asked what DJ thought about the way Peter Leith wore his clothes and his hair. The defendant explained to DJ that it was important that people should be able to express themselves openly and honestly and be with whom they wished. He said to DJ that he would like to be able to express himself however he liked and if he wanted to fuck his dog “King” he should be allowed to do so.
[26] April 2007.
DJ recalled that he said to the defendant that he pretty much agreed with the defendant but, all the time, wondering what he was getting at.
Ric asked me if I liked him and I said I did. He asked me to press my hand against his penis through his pants which I did do, then he asked me to open the fly on his pants and take his penis out, I did that.
DJ’s account goes on to record how the defendant asked him to suck his penis which was erect. DJ had done everything asked of him to this point but when asked to suck the penis he said “I couldn’t”. The defendant then told DJ to pull the defendant’s penis but DJ did not know what he meant by this. The defendant then put his hand on DJ’s hand and used it to pull at the defendant’s penis until the defendant ejaculated. The defendant then reached out and squeezed DJ’s penis through his pants. DJ did not fully understand what was going on, nor did he give any thought to the consequences. “I can say quite honestly that I was excited and also scared”. At the time that the defendant squeezed DJ’s penis through his pants, DJ’s penis was erect.
This description[27] of the defendant’s conduct on this occasion satisfies the objective requirements for the indecent assault alleged as count 5. The incident was referred to again by DJ in his second statement.[28] Some further detail is given but without any inconsistency of significance, that is, such as would, of itself, cause me to doubt the reliability of the account summarised above.
Count six
[27] At page 9 of the first statement, 10 June 2008.
[28] At page 8 of the first statement, 10 June 2008.
DJ described how, after this event, Peter Leith also engaged in inappropriate sexual conduct with him. According to DJ, Peter Leith approached the topic by telling DJ that the defendant had told him (Peter Leith) that DJ liked him. DJ agreed with this. Peter Leith then told this 13 year old boy what they could do together to show that they liked each other. DJ described in quite some detail the circumstances in which Peter Leith attempted, unsuccessfully, to have anal intercourse with DJ.
DJ then described another incident with the defendant. Because of bus timetabling he had arrived at the theatre early. The defendant was engaged in a meeting with another person and said to DJ that he was to walk along Dequetteville Terrace and in a little while the defendant would collect him. DJ did this. A little later the defendant drove by and picked him up in his white convertible motor vehicle and drove him to the defendant’s house in Wattle Street. DJ described how the defendant, with the use of lubricant, engaged in an act of anal intercourse with DJ in the defendant’s bedroom.
It was that the first experience that I was literally being anally penetrated and he came in me and he didn’t use a condom. Now I know, I’m speaking as post-AIDS adult that, you know I look back at it and my brain just goes off and then I think he, you know bundled me into the car and dropped me back at the theatre or at the edge of the bloody parklands on the other side of the theatre and it was like, you know, pat on head and off you go kind of thing. He sent me to the toilet afterwards to defecate. I remember looking into the toilet bowl to see what it looked like. The toilet was inside at the back of the house. If you were going out towards the backyard of the house the toilet was on your right at the end of the central hallway. The walls were an off-white/creamy colour.
It is this incident that forms the basis of count 6, an allegation of buggery.
DJ returned to this incident in his statements of 10 June 2008[29] but supplies no further detail, and also in his statement of 7 August 2011[30] where DJ described this incident in significantly greater detail. I have reviewed the two substantive accounts of this incident but, whilst in the second account more information is provided, there are no discrepancies or inconsistencies of any significance.
[29] At page 6, first three lines of the second paragraph.
[30] At page 2.
As with DQ, the level of detail volunteered is, of itself, persuasive. During the second account, DJ added that on this occasion in the defendant’s bedroom in the Malvern house, the defendant told him that Peter Leith had told the defendant that he (Peter) did not think that DJ liked him and wasn’t keen to do anything with him. Peter Leith was annoyed with DJ, according to the defendant. DJ said that he felt that he was being chastised but the defendant used a mocking tone about Peter Leith and said “Peter should have used lubrication, and that would have made it much better.” The defendant then said to DJ that he would show DJ what he meant by that. At the end of the anal sex, the defendant was pleased with DJ and told DJ that he knew that Peter Leith had been wrong and that the defendant would let Peter Leith know that DJ did enjoy everything and that Peter Leith should have used lubricant and should have known better. DJ then added this.[31]
This was a consistent difference between Ric and Peter; Peter was always the more aggressive and moody one, Ric tended to talk and negotiate – Ric explained this as his (Ric’s) Libra balance and Peter’s Scorpio sting [being] references to their horoscope signs.
[31] Statement 6 September 2010 at pages 3-4.
DJ in his statements has described a number of further occasions when he engaged in sexual conduct involving masturbation, oral sex and anal sex with both Peter Leith and the defendant. Again, the accounts given by DJ are very detailed. DJ was extremely impressed with the defendant, he was on TV, he had an American Express card, he had a great big house, he had a fantastic white convertible car, he had a big dog – “he must have so much money”.
DJ described the period of his involvement with the defendant, Peter Leith and their other associates as being July/August 1974 into 1975. He recalled being aware at the time of both his first and second year high school teachers. He remembered their names. According to DJ “things ended because I became very stubborn and wouldn’t engage with them any longer”.[32]
[32] Statement 10 June 2008 at page 8.
Evidence of AF - counts seven to twelve inclusive
AF has supplied declarations dated 13 April 2005, 21 July 2008, 11 November 2008 and 7 September 2010. According to AF, he was born on 27 February 1962. For the reasons already explained,[33] I accept that he would have been aged 13 during each of the periods particularised for the allegations set out in counts 7 to 12 inclusive. AF first met the defendant and Peter Leith during AF’s involvement with the production of “Oliver” at the Cottage Theatre. Available records suggest that the show “Oliver” opened (had its first performance) on or about 21 March 1975.[34] According to AF, the show in which he was involved opened on 26 March 1975 and attached to his declaration is a copy of the programme for the show which bears that date.
[33] See fn 6 above.
[34] Declaration of Helen Toepa dated 11 July 2008 in exhibit P1.
AF was born in Robe and lived there until about two years of age, at which time his entire family moved to Port Pirie because of his father’s employment. In 1975 the family moved to Salisbury where AF attended a local high school for years 9 and 10. AF attended the auditions for the Cottage Theatre production “Oliver” and was offered a part in the chorus line.
After that I was fairly caught up with rehearsals, I think that I used to go about three times a week, the rehearsal time became more intense as the production moved to within four to six weeks of opening. Once the production commenced, we would perform a show every night, Monday to Saturday, with a matinee on Saturday.
. . . .
Two of the most important people at the production were Peter Leith and Ric Marshall. Ric owned the theatre to the best of my knowledge, he also played Fagan in the “Oliver” production. Ric was fairly high profile in South Australia at that time, I remember that he used to have a children’s show on Channel 7. I can’t remember the name of the show, PT used to be on the show with him. Peter Leith was also on the show. I think that he played a character named “Sammy Seagull” . . .[35]
[35] Declaration dated 13 April 2005 at page 2.
According to AF[36] his mother would take him to most of the rehearsals and performances, and would stay and take him home. However, at some point, the defendant approached AF’s mother about the difficulty for her in driving all the way from Salisbury to Kent Town on each occasion. An arrangement was made between the defendant and AF’s mother that AF would stay at the defendant’s place over the weekends and AF’s mother would collect him on Sundays. AF discussed this with his parents whom he understood to be at ease with the idea, nor did AF see a problem with it.
The first couple of times that I stayed there, everything was good and a lot of fun. Ric would take me out with the cast of the play to “Don Giovanni’s” which was a good restaurant in Adelaide. He also took me to the Channel 7 studios. The “Footy Show” was on then and I was absolutely obsessed with football. I used to get to see a number of players and I thought that everything was great. Ric used to drive a white 427 Camaro convertible with red leather seats. Everything that was happening was pretty exciting, being a boy that had grown up in the country.[37]
Count seven
[36] Declaration dated 13 April 2005 at page 3.
[37] Declaration dated 13 April 2005 at page 3.
AF stated in his first declaration[38] that over a period of approximately two years he was sexually abused once by Peter Leith and on at least five or six occasions by the defendant. The offending occurred between 1975 and 1977. He described the first occasion that he could recall being abused by the defendant as being at night time after a performance; either a Friday or Saturday night.
There was a sauna at the house and on that night Ric asked me if I had ever had a sauna. He explained to me that you went into the sauna naked with a towel on and sweated and when you were finished you would jump naked into the pool. I thought that would be ok, I trusted Ric at that time, and I didn’t have any idea that my safety was being compromised in any way.[39]
[38] Declaration dated 13 April 2005 at page 4.
[39] Declaration dated 13 April 2005 at page 4.
AF then described in his April 2005 statement how he and the defendant entered and stayed in the sauna for about 15 minutes after which they both jumped into the pool naked. At a time when AF was in the deep end, the defendant approached him from behind and put his hand on AF’s penis. The defendant started to masturbate AF by which AF meant that the defendant manipulated AF’s penis in a tugging up and down motion.
I was scared and uncomfortable, I didn’t know what to think, but something inside me knew that what was happening was not right. As this was occurring Peter came home and I remember feeling a sense of relief about that. I thought that Peter would put a stop to what was happening. Peter came over to the pool and looked at us, Ric did not stop feeling my penis. I can still recall Peter’s exact words at that time, I have never forgotten them. Peter said “I see tricky Ricky’s got you by the dicky”. When Peter said that he started laughing.[40]
The allegations concerning the defendant’s conduct in the pool are relied upon by the Crown as comprising the offence of indecent assault as particularised in count 7.
Count eight
[40] Declaration dated 13 April 2005 at page 4.
After that incident the defendant took AF inside the house where he showed AF the inside of a large floor to ceiling cupboard in the hallway. The cupboard was full of games and model kits. The defendant said to AF something like “If you are a good boy you can have what you want” and “If you are a really good boy like G then you might get a bike or something for Christmas”. AF understood the defendant to be referring to another boy GU who was about a year older than AF. At the defendant’s invitation AF picked “a big model kit of a phantom jet fighter”. The defendant then took AF into the defendant’s bedroom. They were still both naked and the defendant started to masturbate AF again and proceeded to perform oral sex on AF. According to AF, the defendant put AF’s penis into his mouth and moved his mouth in an up and down motion along the shaft and head of the penis. AF recalled having an erection and feeling very confused. After doing this for a while the defendant then told AF to get down on his hands and knees and the defendant inserted his erect penis into AF’s anus and continued to push in and out in a thrusting motion.
I remember that it hurt like hell, I am pretty sure that he managed to insert most of his penis into my bottom.[41]
[41] Declaration dated 13 April 2005 at page 5.
The only conduct by the defendant in his bedroom that night the subject of a charge is the alleged anal intercourse which forms the basis for the charge of buggery in count 8. In his description of the act of anal intercourse and both the defendant’s and AF’s conduct immediately thereafter AF has provided significant further detail that it is unnecessary to outline here.
According to AF every time the defendant had sex with him it would follow what became a familiar and similar, pattern.
It would always start with masturbation and then he would perform oral sex on me before performing anal sex. I remember that on at least a couple of occasions, he wanted me to masturbate him or perform oral sex on him and he wanted me to kiss him, but I wouldn’t and he would leave it.
Count nine
According to AF another act of buggery, the subject of count 9, occurred when AF was involved with the Easter Appeal at the Channel 7 studios during the Easter period of 1975. All of the boys from the cast of “Oliver” attended the studios and sang the song “Food glorious food”. Again, AF has provided an impressively detailed recollection of this occasion.[42] AF stayed overnight at the defendant’s house during the weekend of that performance and recalled being sexually abused whilst staying overnight. The abuse followed the same pattern as has already been described and concluded with the defendant engaging, with the assistance of a lubricant, in an act of penile/anal intercourse with AF.
Count ten
[42] Statement dated 21 July 2008 at page 3.
Count 10 alleges another act of buggery during the period 20 March 1975 and 25 May 1975 at Malvern. According to AF this act of abuse occurred on a weekend during which he was taken out to dinner at the Don Giovanni Restaurant in Rundle Street. AF recalled going there with the defendant after evening performances at least four or five times. On one particular occasion he was taken to the restaurant following a performance of “Oliver”; quite a few cast members were present making up a reasonably large table. Again, AF was able to provide impressive detail about such things as the people there and what he ate on this particular occasion. AF stayed overnight at the defendant’s house and the same pattern of abuse, culminating in anal intercourse, took place. AF recalled that on this occasion the defendant again tried to kiss him but AF objected and the defendant became annoyed and angry with him.
Count eleven
Count 11 comprises another allegation of buggery, again, particularised to have occurred at Malvern and during the same time period of 20 March 1975 to 25 May 1975. According to AF he was in the billiard room at the defendant’s house playing 8-ball with another boy name LP who was maybe a year older than AF. LP also performed in the general chorus at the Cottage Theatre. AF recalled[43] that Peter Marshall was also there. Both the defendant and Peter were making jokes while the boys played. These jokes mostly involved sexual innuendo and one comment that AF recalled was about “balls in pockets”.
[43] Declaration dated 13 April 2005 at page 6.
The night culminated in LP going off with Peter Marshall and AF and the defendant going back to the defendant’s bedroom and having anal intercourse.[44] In his statement of 21 July 2008,[45] AF has provided a significantly more detailed account of the night in the billiard room and the anal sex that occurred afterwards in the defendant’s bedroom. Again, the level of detail provided, this time concerning interplay between the four participants LP, AF, Peter Marshall and the defendant during the late evening when they were playing and joking in the billiard room and the sexual conduct that later occurred, is impressive. There are no inconsistencies of any significance between the two accounts.
Count twelve
[44] See 13 April 2005 at page 7 and 21 July 2008 at page 7.
[45] At pages 7ff.
Count 12 is another allegation of buggery. This time particularised as having occurred at Malvern between 20 March 1975 and 30 September 1975. This recollection by AF is tied to a meal at Swain’s Restaurant.[46] AF’s recollection is that Swain’s was a seafood restaurant on Glen Osmond Road, a short way up from Fullarton Road on the left hand side, travelling in the direction of the freeway. It struck AF as “fancy” and he was of the belief that it was an expensive restaurant. He recalled being at Swain’s on this occasion at a time relatively early in his association with the defendant, no later than mid 1975. He recalled that the only persons present were himself and the defendant. AF remembered the dinner quite well because this was the first time he had eaten in such a “flash” restaurant and because seafood is his favourite food. Furthermore, this is the only time he ever went to Swain’s Restaurant.
[46] Statement of 21 July 2008 at page 3.
Again, AF has provided a significant amount of detail concerning his account of the night at Swain’s Restaurant after which he was taken to the defendant’s house in the defendant’s white convertible car with leather seats and was allowed to listen to a tape in the 8 track stereo system. He stayed overnight in the defendant’s house and again the same pattern of behaviour occurred in the defendant’s bedroom culminating in an act of anal penetration by the defendant.
The various statements of AF are replete with detailed accounts of activities undertaken with the defendant and Peter Marshall and with other persons involved with the Cottage Theatre productions who generally formed the social circle that surrounded the defendant and Peter Marshall during the period AF was involved with them.
In his statement of 7 September 2010, AF provided his recollections concerning a large number of photographs shown to him. In a number of the photographs AF is able to identify persons and places but in a number of photographs he is not able to do so. He expressed recognition of the defendant, Peter Marshall and the defendant’s dog “King” in a number of the photographs and also recognition of a number of rooms and locations in and about the Wattle Street house in Malvern.
Evidence of IC – count fourteen
IC has supplied declarations dated 14 February 2006, 12 June 2008 and 12 December 2008. According to IC, he was born on 20 February 1962. For reasons already explained,[47] I accept that he would have been aged 14 during the period particularised for the allegation of unlawful sexual intercourse set out in count 14.
[47] See fn 6 above.
IC lived at Para Vista until about 15-and-a-half years old when he moved to an address at Modbury Heights. In addition to his parents, his family also included three sisters and a brother. He attended Para Vista High School and became friends with a group of students including DQ, the first complainant in these proceedings. Through DQ he met Phillip Cave during his second year of high school in 1976. He met with DQ and Phillip Cave outside DQ’s house and outside the Para Vista High School on a number of occasions before he actually went anywhere with Phillip Cave. Phillip Cave always came in his two-door green Monaro and seemed to be “a magnet to students at the school. He was our ticket to freedom for the day and he used to give us smokes.”
At first IC was of the view that Phillip Cave was either DQ’s brother or a very close friend of DQ’s family. IC did not much like school and it wasn’t long before he decided to wag school with DQ and head off for the day in Phillip Cave’s green Monaro. Phillip Cave drove them around and into the city where they went to a coffee shop in Stephens Place. Phillip Cave provided drinks and smokes and drove them to three or four other places during the day.
Eventually Phillip Cave parked the car close to the power station in the North-Arm area near Port Adelaide and asked IC to swap seats with DQ so that IC would sit in the front passenger seat next to Phillip Cave. Phillip Cave started to fondle IC’s penis through his clothing.
He did this for a couple of minutes. It was like he was trying to gauge my reaction. It was like he was testing me out. I was petrified by Phillip touching me.[48]
IC then described conversation between Phillip Cave and DQ concerning the things they did together after which Phillip Cave stopped fondling IC’s penis and engaged in an act of oral sex on DQ. IC then described how, on this first occasion when he was alone in the car with Phillip Cave and DQ, Phillip Cave also engaged in an act of oral sex on IC following which Phillip Cave engaged in anal intercourse with IC.
[48] Statement 14 February 2006 at pages 4-5.
The vast bulk of IC’s lengthy and detailed principal declaration sets out allegations of repeated acts of sexual abuse perpetrated on him by Phillip Cave over a very lengthy period of time.
I continued to have contact with Phil Cave until I had been in the new house at Modbury Heights for about 6 months. From the first day I met Phil until then, I was sexually abused by him on probably hundreds of occasions. It is difficult to put a figure on the number of times that he abused me. There is virtually no occasion that I saw him that he would not sexually abuse me in some way, whether it be him fondling me, performing oral or anal sex on me or getting me to masturbate him or getting me to try and perform oral sex on him. Usually it was a combination of these things. In all I was abused by him for a period of more than 12 months when I was aged 14 and 15 years of age.[49]
[49] Statement dated 14 February 2006 at page 9.
Substantial parts of the statement are also taken up with descriptions by IC of observing Phillip Cave perform oral and anal sex on various other young boys with whom IC associated. In the main statement[50] IC described his first meeting with the defendant, Ric Marshall.
Just before Christmas, in 1976 I remember Phil took three of us to meet a man who I now know as Ric Marshall. There was me and two other boys. I think the other two were FL and GF but I am not exactly sure. We knew we were going to see someone but didn’t know who until we arrived. We left from just around the corner from my place. It was dark when we left. The house we drove to was somewhere in the Unley area or thereabouts. It was an older style house and had a heated inground pool in the backyard. It was the first time I had seen an outdoor heated swimming pool. I saw that Ric had at least one, maybe two, great dane dogs at the house. The dogs were a light colour, like a goldy-beige colour. I remember patting the dogs. I remember meeting Ric Marshall and also another man was there. Ric Marshall introduced himself and the other man told me that he was a character who dressed up on a TV show along with Ric Marshall.
. . . .
I thought that Ric Marshall and this supposed character was all bullshit until the following week, one morning when I was watching a television program on Channel 7. I saw Ric Marshall and the character that had been described to me previously at Ric Marshall’s house. I had not seen the TV show before this. The show had a lot of kids on it. I remember that there were boys and girls on the show which seemed to be geared to the younger audience. Ric Marshall had a fattish face. I am unable to give much of a description of the other man at Ric’s house apart from that he was in his mid-20s. I got the impression that this male was living with Ric at the house.
[50] At page 23.
IC described how he and the other two boys went skinny dipping in the pool with some of the adults but he could not recall which of the defendant, Phillip Cave or the other man went skinny dipping. IC described how after swimming in the pool everyone went inside the house and one of the adults brought out some black and white photographs of naked men and women which were sexually explicit showing close ups of penises and fingers in vaginas. IC had never seen such photographs before.
Count fourteen
IC then described how a little while after this he was taken to a bedroom by the defendant. IC has provided a very detailed description of what then took place.[51] It is unnecessary to set that detail out here. However, IC has given a compelling account of the manner in which the defendant engaged in an act of penile/anal intercourse with IC. It was an extremely painful experience. The defendant was a large man compared to IC and he penetrated IC for about 10 minutes until he ejaculated inside. The defendant apologised after. The account given by IC in his statement reads as an account of forced anal intercourse. There is no persuasion, no inducement and, according to IC, he told the defendant he did not want to have sex with him but this was completely ignored. It is this event which was originally charged as rape but is now relied upon by the Crown as count 14, a charge of unlawful sexual intercourse with IC when aged 14 years of age.
[51] At page 25.
IC described Phillip Cave coming back into the bedroom and trying to smooth things over, telling IC that he would be alright. However, soon after that he was grabbed by the third man who took IC to another bedroom and engaged in anal and oral intercourse with IC.
In his first declaration IC said that this was the first and only time that he had been to the defendant’s house. He made it clear to Phillip Cave that he would not go back there again.
I remember that it was around Christmas that this occurred because by that time we were on holidays and I was depressed by what had happened at Ric’s house. My mother noticed this and commented that I was sad and depressed and very quiet. I didn’t go near Phillip for a good week-and-a-half after this.[52]
[52] At page 27.
In his addendum statement of June 2008 IC observed that the reason his mother could not work out why he was depressed at this time was because it should have been a happy time being around the Christmas period and she made mention of that. However, also in this statement IC provided a correction to his earlier statement to the effect that he only went to the defendant’s house once. In the later statement he said that this was not correct and that he went back to the defendant’s house possibly on six or seven more occasions. He only ever went with Phillip Cave.
I didn’t want to talk about these further occasions when my first statement was obtained because I questioned myself as to why I would allow myself to go back there if I had been sexually abused the first time that I met Ric Marshall. Now that the Phil Cave matter is over I feel easier talking about it. I felt guilty about going back to Ric Marshall’s and that I didn’t do something to stop going back there and being stronger with Phil about him not taking me there.
In this addendum statement IC has stated that he was sexually abused by Ric Marshall and the other man on each of the additional occasions he visited the defendant’s house. The sexual abuse consisted in them having anal intercourse with IC.
Ric Marshall was always the first one to have anal sex with me and when he was finished the other man would take me into his room and he would perform whatever he wanted to perform on me, always anal sex and sometimes oral sex.[53]
[53] At page 2.
IC was taken to the defendant’s house by Phillip Cave with other boys. The other boys were taken into the rooms with the defendant and the other man. IC never saw the defendant or the other man actually having sex with other boys but assumed that this was what was happening because they would be taken into rooms and the door would be shut. IC described the defendant and the other man as,
like they were working as a team. Ric would always sexually abuse me first and then the other man. This occurred in a similar fashion to the first time, except the first time I can remember more easily because it was the first time and Ric was forceful on the first time.
IC’s interactions with the defendant occurred over a couple of months after he first met him in December 1976 after which “Phil suddenly stopped taking me to Ric’s house, I don’t know why this occurred.”
In another addendum statement, dated 12 December 2008, IC provided a further description of the house and backyard he visited, belonging to the defendant. After being shown some colour photographs, IC was unable to positively identify the house pictured in the photographs as being the one he went to although he said it was of a similar style.
Evidence of complaint
According to DQ, the abuse ended shortly before he went to the United Kingdom in about November 1974. At or about this time he was taken to see a high school counsellor to whom he disclosed (and for the first time) the allegations of abuse. The counsellor has not given evidence and therefore there is no corroboration before the court of this aspect of DQ’s evidence. DQ has provided an explanation which, if correct, suggests good reason why the court should not expect to hear from this person.
According to DJ, he first told a friend of his about the abuse. This complaint was made quite some time after the abuse ended. Again, there is no corroboration of this aspect of DJ’s evidence.
According to AF, in 2001 whilst he and his then wife were undergoing marriage guidance counselling he first revealed, in a general way, that he had been victim of sexual abuse to a counsellor in the United States. He did not go into any detail. However, at about the same time he told his then wife and his sister (in a phone call from the United States) that he had been sexually abused by Peter and Ric Marshall but went into no further detail. AF’s sister, Coralie Day, has provided a declaration, again admitted without objection, in which she stated that in mid-2001 she spoke with AF who was in the United States by telephone. During this conversation AF told her that he had been sexually abused by Ric Marshall when he used to go to his place and that Peter Leith was also involved. However, AF did not go into detail with her.
There is no evidence before the court of any initial complain made by IC.
The evidence of initial complaint by DQ, DJ and AF is admissible. It is potentially relevant for a number of reasons.
First, it may serve to inform as to how an allegation first came to light and so provide a more complete picture of a complainant’s account.
Second, it may assist in demonstrating consistency or inconsistency of conduct on the part of the complainant. Do the circumstances of the making of the complaint appear consistent with the occurrence of the event(s) the subject of the complaint?
However, the evidence of an initial complaint is not available to demonstrate the truth of what was reported.
Furthermore, I accept that there may be varied reasons why an alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person or, indeed, has made no complaint at all. It is not uncommon for victims of sexual offending, particularly of the nature and extent as described by each of the four complainants in this case, to make no or little complaint at all before, after many years, finally taking their story to someone in authority. In the case of each of the complainants in this case, there is nothing about the complaint evidence; either its content or lack of content or its extremely limited scope or the lack of corroboration from a complaint witness, that assists me one way or the other. In the circumstances of their respective relationships with the defendant, as described in each complainant’s evidence I find nothing in their behaviour concerning their delay in making or their failure to make a complaint or the context of any complaint as being inconsistent with their respective accounts.
Cross-Admissibility
As I indicated much earlier in these reasons, ordinarily, separate consideration must be given to each count in the light of only the evidence that bears on that count. However, it can be the case that some of the evidence adduced as relevant to one particular count (or a series of counts with respect to a particular complainant) is also relevant to another count or series of counts relating to a different complainant. In considering the possible cross-admissibility of any such evidence I must observe the following.
First, I cannot use the evidence of one complainant in relation to the events involving another unless I am first satisfied beyond reasonable doubt of its truth.
Second, I must not use the evidence of one complainant to conclude that the defendant is the sort of person who would have committed the same or similar offence against another complainant.
Third, the way in which the evidence of one complainant might be used in the Crown case with respect to another complainant is this. I might find in the evidence, about the way some or all of the complainants were treated by the defendant, such an underlying unity, or system that the evidence cannot be explained by coincidence. I might find that the evidence of the defendant’s treatment of some of the complainants is so similar, or it has about it such an underlying unity or system, that the only rational explanation for the evidence of these complainants is that it is true, it cannot be explained by mere coincidence.
Before I could reason this way, I must be satisfied that not only is it a rational inference but also it is the only rational inference that the defendant did do the things alleged by each complainant.
Fourth and finally, if it were to be reasonably possible that one complainant’s account had been concocted or made up by using the account of another, then I would not be able to consider their evidence together. If I cannot exclude the possibility of two or more of the complainants putting their heads together to tell a false story then their evidence cannot be considered together in the way just outlined. The Crown has to disprove concoction and do so beyond reasonable doubt.
As to this latter issue, there is no evidence before the court suggestive of concoction between any of the complainants. There is no evidence that any of the complainants had any particular opportunities to engage in concoction. IC has described how he knew DQ at school and met Phillip Cave in the presence of DQ. However, neither DQ nor IC describe their interactions with the defendant as being in each other’s presence or with each other’s knowledge. DQ has said that whilst he may have known IC at school he could not remember him. There is no suggestion in the evidence of any interaction between the two after this initial involvement with Phillip Cave some 30 or so years prior to preparing their statements.
AF and DJ were performing at the Cottage Theatre at different times. They have not met each other.
Of course, lack of evidence about concoction or opportunity for concoction is not necessarily the same thing as lack of concoction. However, each of the four complainant’s accounts reads as a separate, coherent narrative of his relationship with the defendant, including how it came about. I am satisfied, after reading these accounts that, whilst they each had similar, to some degree, experiences, there is no element of concoction between the accounts or any of them.
The Crown relies on there being an underlying unity with respect to some aspects of the accounts of all four complainants. The elements relied upon by the Crown include: the use by the defendant of his celebrity status; his association with the theatre and/or his Channel 7 television show to groom a complainant and take advantage of opportunities presented to engage in sexual activity; the cultivation of parental trust in connection with the theatre commitments of some of the complainants; the use of inducements such as treats, restaurant dinners, participation in the defendant’s “exciting” and more luxurious lifestyle – all complainants speak of the swimming pool, all speak of riding in the American car, all refer to the dog “King”; both IC and DQ refer to being shown pornographic photographs; each complainant refers to the defendant’s use of lubricant; each refers to the defendant ejaculating in his anus; each speaks of going to the bathroom/toilet afterwards – DQ says he “had” to go and DJ and AF speak of being “told” to go; there was on each complainant’s account strikingly similar descriptions concerning the defendant’s interactions with other men (particularly Peter Marshall) the brazenness of the defendant’s conduct; the lack of any concealment of the activities from other men similarly involved and the process of the defendant and Peter Marshall grooming the complainants and other boys for each other.
It is the Crown’s submission that a number of these features are consistently presented in all of the complainants’ accounts and others are consistently presented in two or more of the complainants’ accounts. In her final address prosecution counsel submitted,
It is that interrelationship between these different men, the methods of grooming and the relationships each of the men between themselves and them between the complainants that is particularly unusual and points to an underlying unity between each of the complainant’s accounts. [The court] should be satisfied in looking at the totality of their evidence, that there is no reasonable explanation consistent with [the defendant’s] innocence and that [the] probative force of the evidence of the complainants is supported by this underlying unity in their accounts.
As I have indicated, I have only briefly summarised the very comprehensive and detailed evidence provided by each complainant. However, whilst for the reasons given below, it, strictly, is unnecessary to form a concluded view, after having carefully scrutinised all of the evidence, I do accept the Crown submission concerning an underlying unity of the defendant’s behaviour towards all of the complainants.
Conclusion
Leaving aside issues of cross-admissibility and any underlying unity of the defendant’s behaviour towards the complainants, I have found each complainant’s account of his interaction with the defendant to be compelling and cogent.
I am satisfied beyond reasonable doubt that the activities engaged in by each of the four complainants with the defendant, particularly the relentless and ongoing sexual behaviours, and notwithstanding that it all occurred many many years ago when each complainant was very young, have had a profound effect and influence on each of the complainants. The accounts given do not in any way convey a fictionalised sense but read as if containing details as clear to each complainant at the time they recorded their evidence as they were when they occurred and which will never be forgotten. I accept as truthful and reliable the account given by the relevant complainant as to each of the thirteen charged offences.
The recorded aspects of the defendant’s behaviour common to all complainants serve only to fortify this conclusion already arrived at beyond reasonable doubt.
The further prosecution of count two on the information dated 27 July 2009 is permanently stayed for the reasons earlier indicated and a nolle prosequi has been entered by the prosecution with respect to count 13. As for all other counts on the information, dated 27 July 2009, I find the objective elements to have been established. I find the defendant not guilty of all counts (except for counts 2 and 13) on the information but declare him liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935. I will hear the parties further on the next steps to be taken in the matter.
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