R v Marshall - [2011] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARSHALL
Criminal Trial by Judge Alone
[2011] SADC 98
Reasons for the Verdicts of Her Honour Judge Bampton
10 June 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of sexual exploitation or in the alternative, two counts of buggery against Q, two counts of buggery against J and one count of buggery against F, alleged to have been committed between 1971 and 1975.
Trial by Judge without a jury.
Accused found guilty of persistent exploitation of a child - count 1, and guilty of buggery, counts 4, 5 and 6.
Criminal Law Consolidation Act 1935 ss 50(1), 69, 69(1)(a), 278(2), 285BC(1)(b), ; Evidence Act 1929 ss 34L, 34M, 69, 69A, referred to.
R v N, SH [2010] SASFC 74; Pfennig v The Queen (1995) 182 CLR 461; Hoch v R (1988) 165 CLR 292; Phillips v R (2006) 225 CLR 235; Sutton v The Queen (1984) 152 CLR 528; R v Nieterink (1999) 76 SASR 56; R v Liddy (2002) 81 SASR 22; R v Dawson-Ryan [2009] SASC 259; R v Cassebohm [2011] SASCFC 29; R v Dennis [2010] SASC 69; R v Ellis [2010] SASC 118; De Jesus v The Queen (1986) 68 ALR 1; R v H, T [2010] SASFC 24; R v S, DD [2010] SASCFC 80; R v M, BJ [2011] SASCFC 50, considered.

R v MARSHALL
[2011] SADC 98
Table of Contents
Introduction
Background
Length of Trial
Application for Separate Trials
Directions
Burden of Proof
Forensic Disadvantage
Assessment of Witnesses
Complaint
Prior Inconsistent Statements
Similar Fact Evidence / Uncharged Acts
Cross Admissibility
Collusion and Concoction
The accused’s awareness of Ric Marshall’s abuse of boys.
The Witnesses
Count 1 - Evidence of Q
Houseboat
Count 4 and Count 5 - Evidence of J
Count 6 - Evidence of F
Evidence of U
Houseboat
Evidence of S
Evidence of Frank Cwiertniak
Evidence of Detective Bulmer
Evidence of the Accused
Evidence of Joan and Stuart Campbell
Evidence of Dr Sutherland
Evidence of Dr Bennetts
The Law
Elements of Persistent Sexual Exploitation of a Child
Elements of Buggery
Findings
Count 1
Counts 2 and 3
Count 4
Count 5
Count 6
Suppression Order

R v MARSHALL
Introduction

The accused has been charged with and pleaded not guilty to six offences, alleged to have occurred between 1971 and 1975, when he was aged between 18 and 22. He is charged with:
·Persistent Sexual Exploitation of a Child (Section 50 of the Criminal Law Consolidation Act, 1935 (the Act)) or in the alternative, two counts of Buggery (Section 69 of the Act, 1935-1971 and Section 69(1)(a) of the Act 1935-1974 respectively) against Q. Q alleges that he was 12 years old when he was first abused by the accused.
·Two counts of Buggery (Section 69(1)(a) of the Act 1935-1974) against J, who says that he was 13 years old when he was first abused by the accused.
·One count of Buggery (Section 69(1)(a) of the Act 1935-1974) against F, who says that he was 13 years old when he was abused by the accused.
The accused was known by the complainants as Peter Leith. He changed his name to Peter Marshall in 1993.
Background
The accused was born on 31 October 1953.
While a young child, he was made a Ward of the State and came under the supervision of the Department for Community Welfare. The Department ceased active supervision of him in December 1971. By May 1972, he was residing with Ric Marshall and worked with him at the Cottage Theatre.
Ric Marshall was a television personality and producer of a number of children’s television programs. He was also the founder of the Cottage Theatre, an amateur theatre company. He produced and performed in Cottage Theatre productions and pantomimes, which were staged mainly at the Cottage Theatre located on Dequetteville Terrace Kent Town. As will be seen later, Ric Marshall played a significant role in the events charged.
The alleged offending occurred against the backdrop of the Cottage Theatre, a cottage used to store sets and costumes located at Gilles Street Adelaide, houses that the accused and Ric Marshall resided in at James Street Gilberton and Wattle Street Malvern and a houseboat trip on the River Murray.
Length of Trial
The trial of this matter was originally listed for 15 days. The voir dire lasted 5 days and the trial commenced on 17 September 2010. For a number of reasons (discussed in this judgement) the evidence did not finish until 7 December 2010. Addresses were delivered on 19 January 2011. I reserved my decision on that day.
The accused also suffers from various medical problems, in particular an atonic bladder that required frequent breaks during the trial process and also hospitalisation during the trial.
A delay was caused by the late disclosure of a report from the accused’s urologist Dr Sutherland dated 2 November 2010. The prosecution were caught by surprise and time was allowed for them to obtain instructions. Ultimately Dr Sutherland gave evidence without objection. I deal with his evidence later. A further delay was caused on 30 November 2010 when I abridged time for the accused to issue subpoenas to the Royal Adelaide Hospital and the Flinders Medical Centre to produce documents. Upon production of the subpoenas and documents the defence case was closed on 7 December 2010.
Application for Separate Trials
Mr Dillon, counsel for the accused, made application at the commencement of the trial for an order for a separate trial of the counts relating to each complainant on the ground that the offence of buggery is not a sexual offence for the purposes of s 278 of the Act.
In my opinion, offences against s 69 of the Act 1935-1971 and s 69(1)(a) of the Act 1935-1974 are clearly substantially similar offences against a previous enactment pursuant to s 278(4)(c) and therefore, I refused the application.
Following this ruling, the accused made application pursuant to s 278(2a)(b) for an order for a separate trial of count 6, the alleged offence of buggery against the complainant F. Mr Dillon submitted that the evidence of F was not admissible in respect of charges based on Q’S and J’S evidence. Mr Dillon conceded that there was some cross admissibility in relation to the evidence offered in proof of the charges based on the evidence of Q and J.
The declarations I had regard to for the purpose of the voir dire applications were agreed to by the parties. I was satisfied having regard to those declarations that the evidence proposed to be led relating to Count 6 was admissible in relation to each count relating to Q and J. I was satisfied having regard to 278(2a)(c) that the evidence to be led had a relevance other than propensity. The proposed evidence was relied upon by the prosecution to establish an underlying unity, system or pattern which reveals as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the prosecution. The similarity in Q, J and F’s accounts was relevant to any claim that the conduct did not occur and any claim that the association between the accused and each of the complainants was innocent. The evidence was capable of demonstrating the requisite degree of probative force by way of the improbability of the coincidence of three similar allegations being made unless true. R v Dennis[1]; R v Ellis[2].
[1] [2010] SASC 69.
[2] [2010] SASC 118.
Accordingly I refused to order a separate trial of the count relating to F.
I made this ruling prior to the Court’s decision in R v N, SH[3] where the Court said that s 278(2a)(c)(i) did not “abrogate the general discretion to exclude evidence where the probative value is slight and is outweighed by the impermissible prejudice”. The court noted that a judge is not to have regard to, in assessing the question of admissibility, whether or not there is a reasonable explanation consistent with the innocence of the defendant or whether the evidence may be the result of collusion or concoction. Both matters are for the jury. The Court stated “Other than those two caveats, the law as stated” in Sutton v The Queen[4], De Jesus v The Queen[5] and R v Hoch[6] applies. This has been reiterated in the Court’s most recent consideration of s 278 in R v M, BJ[7].
Directions
[3] [2010] SASFC 74 at paragraph 44-46.
[4] (1984) 152 CLR 528.
[5] (1986) 68 ALR 1.
[6] (1988) 165 CLR 292.
[7] [2011] SASCFC 50.
Burden of Proof
The accused comes into this court with a presumption of innocence in his favour. He is regarded by the law as innocent unless and until I find the charges against him proven. The onus or burden of proving the charge is on the prosecution. The accused does not carry any onus of proof and, to the extent that he might put forward a defence, he does not have to prove it. The prosecution must disprove it.
The prosecution bears the burden of proof and must prove the charges and every element or ingredient of the charges to my satisfaction beyond reasonable doubt.
Each count must be considered by me separately and I must consider only the evidence that relates to each individual count.
If, following a consideration of an individual count, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict will be not guilty. Where I indicate that I am satisfied about a particular fact or event, I mean satisfied beyond reasonable doubt.
The accused was not obliged to give evidence. He had a right to remain silent in answer to the charges, leaving it to the prosecution to satisfy me of all of the elements of the charge. The accused elected to give evidence on oath. I have given him credit for adopting a course that he was not obliged to adopt.
The effect of this is that, in assessing the accused’s evidence, and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness. It is for me to decide what weight I am prepared to attach to the evidence of the accused in the same way as I must assess the evidence of any other witness. In assessing the accused’s evidence, I bear in mind the disadvantages he has suffered due to the substantial time which has passed between the date of the offences charged and the date of the trial.
Forensic Disadvantage
There was a period of 39 years between the first date specified in count 1 and the trial of this matter. The delay in the prosecution of the accused has resulted in a significant forensic disadvantage to him. As such s 34CB of the Evidence Act 1929 applies.
There can be no doubt that there are significant difficulties for the accused in challenging and responding to allegations of sexual abuse from so long ago. The forensic disadvantages are that if there had been prompt complaints, the accused would have been in a better position to remember back to the relevant time and to remember what, if anything, happened or he might have been in a position to remember who he was with, so as to be able to produce evidence discounting the evidence of the complainants, (although, as I have already directed myself, the accused does not have to prove anything). If there had been prompt complaints, there would have been an opportunity for the accused to interview potential witnesses or for the complainants to undergo medical examinations or for other forensic investigations to be undertaken. As submitted by Mr Dillon, he has been denied the opportunity to call evidence from “people who were in and out of James Street and Wattle Street” and “who quite probably could have had a significant impact on the case”. Mr Dillon also submitted that had the accused been shown the photos in P12 during his record of interview he may have been able to identify the fishing rod in one of the photographs as the one he gave Ric Marshall and thereby counter any suggestion that his evidence in court about the rod was recent invention.
It is possible the accused has forgotten matters or details that might assist his defence. Because there has been such a long delay he has lost the means or tools with which he could test the allegations which would have been available to him had there been no delay in prosecution. In particular, the accused may have been able to obtain medical evidence in relation to his defence that he was physically incapable of performing the acts he is charged with. The accused was aged 57 at the time of trial; he was aged between 18 and 22 at the time of the alleged offending. He now suffers a number of chronic medical conditions. In particular the atonic bladder condition he suffers necessitated hourly breaks during the first few weeks of trial so that he could self catheterise. This condition also caused him to be hospitalised during the trial. Following this hospitalisation and the insertion of an indwelling catheter the court adjourned half hourly to allow the accused the opportunity to empty the catheter.
I take this significant forensic disadvantage into account having regard to the particular circumstances of the accused, when scrutinising the evidence of the witnesses.[8]
[8] R v Cassebohm [2011] SASCFC 29.
Assessment of Witnesses
In approaching the evidence of the witnesses, it is for me to decide whether I believe the whole or any particular part of the evidence of any witness, whether that witness is honest or not, or whether they are reliable or not. I may accept something a witness says but reject other parts. Just because I reject some part of what a witness says does not necessarily mean I have to reject the whole of what that witness says.
Complaint
As the information was filed in this court after 28 November 2008, s 34M of the Evidence Act 1929 is applicable. Evidence was led in relation to each complainant of their initial complaint and the elaborations of those complaints. Evidence of complaint from Q, J and F is of assistance in this matter in understanding how the matters came to the attention of police. It is not admitted as to the truth of what was alleged. As the complaints were made at least 30 years after the alleged offending, the evidence of complaint is of no assistance in demonstrating consistency of conduct in this matter.[9]
[9] R v H, T [2010 ] SASFC 24; R v S.DD [2010] SASCFC 80 at para 111-113.
Prior Inconsistent Statements
There is evidence before me that all of the complainants and the witness U have made statements to the police, which are inconsistent with the evidence that they gave in the court. The prior inconsistent statements of any witness in a criminal trial are not adduced as proof of the truth of the facts which they purport to assert. Rather, they are put before me to enable me to assess whether I can accept the reliability of evidence given on oath.
I must decide this case upon the evidence which was given on oath and subject to cross examination in court. What a witness has said out of court is not evidence in the case. Prior inconsistent statements go only to the reliability or credibility of evidence given in court.
If the witness gave sworn evidence that is significantly different from statements made on an earlier occasion, I must exercise caution before accepting the sworn evidence of that witness. It is for me to assess the significance of each inconsistency that I find proven. I must question whether it touches upon an important issue in the case, or whether it is peripheral or incidental. If it does touch on an important issue, I must ask if there is an acceptable explanation consistent with the witness’s sworn evidence being reliable. The more significant the inconsistency, the greater the risk that the sworn evidence will be unreliable.
If the witness denies or equivocates about statements out of court which he is proved to have made, that also may be a factor in assessing his truthfulness and deciding whether I accept his evidence generally. Of course I am entitled to take into account any independent evidence which I consider goes to support the sworn evidence of the witness.
Similar Fact Evidence / Uncharged Acts
The accused sought exclusion of evidence proposed to be led from S on the ground of late notice and on the ground that it was propensity evidence. He also sought exclusion of U’s evidence with respect to Ric Marshall other than his evidence with respect to the houseboat trip, and the evidence of Q, J, and F with respect to Ric Marshall.
In considering the admission of similar fact evidence, bearing in mind that it is a particular kind of circumstantial evidence, I must ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused. If there is, I will not admit it because the evidence does not have a sufficiently strong probative force.[10]
[10] Sutton v The Queen (1984) 152 CLR 528, 564.
At the commencement of the trial I ruled in favour of admitting the evidence of S and the evidence of the complainants and U with respect to Ric Marshall on the ground that the evidence proposed to be led in the manner identified by the prosecution was admissible as its probative value or cogency was such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused.[11] The prosecution proposed to lead the evidence of the interaction with Ric Marshall to establish the pattern of behaviour or the system of grooming by Ric Marshall. It is the prosecution case that whilst the accused was not present during the interactions between the complainants and Ric Marshall, he knowingly benefitted from the grooming process and was aware it was occurring. Ms Griffith for the prosecution submitted that the inference to be drawn from the fact that the accused had intercourse with the complainants immediately or very soon after Ric Marshall is that the accused knew Ric Marshall had had intercourse with them.
[11] Hoch v The Queen (1988) 165 CLR 292 at 294, Pfennig v The Queen (1995) 182 CLR 461 at 483, Phillips v The Queen (2006) 225 CLR 303 at 323 and R v M,BJ [2011] SASCFC 50 at para 28.
Ms Griffith sought to lead evidence of one conversation between J and Ric Marshall that occurred when the accused was not present. The conversation was alleged to have taken place in the dressing room of the Cottage Theatre. During the conversation Ric Marshall is alleged to have told J that the accused liked J and to have asked J whether he liked the accused. I ruled that the evidence could be led for the purpose of establishing by inference that there was grooming of J by Ric Marshall for the accused and that there had been contact between Ric Marshall and the accused about J.
The relevance of the proposed evidence was the objective improbability of the witnesses giving accounts of similar events, disclosing a similar pattern of behaviour, unless those events occurred in the way they described.
I ruled in favour of admitting the evidence of S who has chosen not to be a complainant. The evidence led was of uncharged acts allegedly committed against him by the accused. Upon reflection after hearing all of the evidence I have not used his evidence and I have wholly disregarded it.
The complainants’ evidence of uncharged acts together with evidence directly relevant to the charges in relation to each complainant may be used by me in determining what, if any, weight I am prepared to place on each complainant’s evidence. That is, hearing the whole of these allegations may better enable me to assess the complainant’s evidence. The evidence may assist me in two ways. It may assist me in concluding that a complainant’s evidence is reliable or it may demonstrate inconsistency, unreliability or inherent improbability in the evidence, thereby raising doubt about the facts alleged.

Evidence of other uncharged incidents is given only to assist me in my evaluation of the evidence going directly to the charges.
The prosecution led evidence that the accused committed uncharged sexual acts on Q and J. Ms Griffith identified the specific evidential purpose for which evidence of the uncharged acts was adduced. The uncharged acts were proffered as evidence of the accused having a sexual interest in prepubescent boys and a sexual attraction to the particular complainant who gave evidence of the uncharged acts. It was also submitted that the evidence of uncharged acts in respect of one complainant could be used in proof of the other charges because it was evidence of a specific sort of sexual interest. As the evidence was adduced as proof of sexual attraction of the accused towards the complainants, it must be established beyond reasonable doubt.
Evidence was also led of the accused arriving at Wattle Street one night and observing Ric Marshall masturbating F in the pool. F gave evidence that when he saw the accused observing what was happening, he hoped that the accused would take action to stop it. Instead F said he uttered words he has never forgotten. Ms Griffith submitted that this is in effect an uncharged act and the inference to be drawn from F’s evidence about it is that the accused knew what Ric Marshall was doing to him, condoned the sexual abuse of him and found that type of behaviour quite normal.
I must direct myself as to the correct and incorrect use of the evidence of uncharged acts, per Doyle CJ in R v Nieterink[12].
[12] (1999) 76 SASR 56 at para 88.
I must not reason that if I accept the evidence of uncharged acts, that the accused had committed similar offences and that he is the sort of person who might commit the crimes charged and find him guilty on that basis. Propensity reasoning of this sort is not permissible. I may only convict the accused if I am satisfied beyond reasonable doubt that the particular conduct, the subject of the relevant count, has occurred. I must not reason that conduct similar to the charged conduct has occurred and that on that basis I can convict on a particular count.
The evidence of uncharged acts, if I accept it to be true, can be accepted by me as evidence:
·that the accused had a sexual interest in prepubescent boys; and
·that the accused was sexually attracted to the complainant who gave evidence of the uncharged act.
I remind myself not to act upon such evidence unless I am satisfied that it has been proven to have occurred beyond reasonable doubt. I have not used evidence of an uncharged act proved beyond reasonable doubt in proof of a charge or charges relating to another complainant as I have accepted the evidence of each complainant independently of each other.
I find the evidence given by Q and J of uncharged acts proved beyond reasonable doubt. I make it clear that I have not taken into account any of S’s evidence and have wholly disregarded it.
I make it clear that U’s evidence about group sex on the houseboat has not been proven and I do not take it into account. I have also totally disregarded U’s evidence of a “threesome” at Wattle Street involving him, Ric Marshall and S as well as his evidence about S being at Wattle Street for the accused and seeing S in bed with the accused.
The uncharged acts I have found proven that preceded any of the charged acts in this matter establish sexual attraction.
Cross Admissibility
The prosecution case is that evidence adduced in proof of one count is admissible in proof of other counts.
As discussed above I ruled against the accused’s application for an order for severance of Count 6 on the ground that F’s evidence was not admissible in respect of the charges based on the evidence of Q and J.
In my view the evidence proposed to be led, as disclosed in the declarations, was evidence of a highly probative and cogent nature that would satisfy the common law test for the admissibility of propensity evidence.[13]
[13] Hoch v R at 295; Pfennig v R at ,483 and Phillips v R at 323.
The evidence of Q, J and F that the prosecution relied upon to establish an “underlying pattern, system or unity” of behaviour of the accused was:
·The initial meeting with Ric Marshall, then meeting the accused. Each meeting occurring in the context of the Cottage Theatre and the activities centring on the Theatre.
·The effect on the boys of Ric Marshall’s celebrity and possessions, particularly the car, the dog and the swimming pool.
·The effect on the boys of the gifts, attention, outings and excitement to be had with Ric Marshall and the accused.
·That all of the boys lived some distance from the Cottage Theatre which created transport difficulties.
·The cultivation of and involvement with the boy’s parents by Ric Marshall and the accused and the transport difficulties leading to parental permission for the boys to stay with Ric Marshall and the accused.
·That all of the boys were about the same age. Q was 12, J was 13 and F was 13, when they met Ric Marshall and the accused.
·That Ric Marshall initiated or “broke in” Q and F. J said after being told by Ric Marshall that the accused was dissatisfied with the sexual interaction in the Gilles Street costume annexe he was sexually abused by Ric Marshall. Ric Marshall told him he would “enjoy being fucked if it was done properly”. After this “initiation”, J gave evidence about being the accused’s birthday present and the accused having anal sex with him.
The relevance of the evidence was to:
·Establish identity.
·To disprove innocent association.
·To establish a pattern or system of offending.
·To make it objectively improbable that the offending alleged did not occur.
As I have accepted the evidence of Q, J and F beyond reasonable doubt independently of each other, I do not strictly need to consider the issue of cross admissibility. However, I indicate that I accept the evidence of Q, J and F led to establish an “underlying pattern, system or unity” of behaviour of the accused. In my view, there was a pattern of behaviour of the accused that established an underlying “system, pattern or unity”.
I make it clear that I have not had regard to U’s evidence in my consideration of cross admissibility. I also reiterate I have totally disregarded the evidence of S.
The conduct of the accused, based upon my factual findings set out below, discloses a system, or pattern or underlying unity in the sense that the alleged offences were committed in a specific context.[14]
[14] R v Liddy (2002) 81 SASR 22 at [62] – [68].
I am satisfied that the evidence proved beyond reasonable doubt in respect of each count is admissible in proof of each of the other counts. It is relevant and admissible to establish underlying unity, system or pattern and to rebut the suggestion of innocent association. As discussed below I am satisfied beyond reasonable doubt that concoction or contamination has not occurred.
I am satisfied that there is no rational view of the evidence consistent with the innocence of the accused. That is, it bears no reasonable possible explanation other than the inculpation of the accused and the offence charged.[15]
[15] Hoch v R at 294 & Pfennig v R at 483.
As I have indicated I have accepted the evidence of each complainant beyond reasonable doubt independently of the other complainants. Accordingly I have not used any evidence of one complainant in respect of the charges based on the other complainants’ evidence. Had I used cross admissible evidence, in considering whether the evidence of one complainant could be used in proof of the guilt of the accused on charges relating to the other complainants I would have kept in mind that in considering items of evidence, I must not do so on a standalone basis. I would have looked at the collective of those aspects of evidence, which themselves suggest a system, pattern or underlying unity such as would warrant the evidence being cross admissible.[16]
[16] R v Dawson-Ryan [2009] SASC 259 at 55.
I have also reminded myself that it would be wrong for me to conclude from the conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged. I must not use propensity reasoning when considering the issue and the use of cross admissible evidence. In other words, I shall not reason from a finding of guilt on one count, that the accused is the sort of person who abuses prepubescent boys and is therefore likely to be guilty of any other count. When considering each count separately, I must remind myself of that propensity warning.
Collusion and Concoction
Mr Dillon submitted I should consider U’s and S’s evidence is concocted in light of the evidence of a meeting between them at Kibbi’s Café in 2003. As I have totally disregarded S’s evidence and have had no regard to U’s evidence in my consideration of cross admissibility, the issue of whether their evidence may be the result of collusion or concoction does not arise in the context of cross admissibility.
I have only used U’s evidence as supportive of Q’s evidence regarding the houseboat trip. There was no suggestion of any collaboration or concoction between U and Q. I am satisfied having scrutinised U’s evidence the possibility of collusion or concoction has been excluded beyond reasonable doubt.
I am also satisfied beyond reasonable doubt that Q’s and U’s evidence was not contaminated.
Finally on this topic, the accused did not suggest that there had been any collusion or collaboration between any of the complainants. I am satisfied beyond reasonable doubt there had been no contact between any of the complainants since the alleged offending.
The accused’s awareness of Ric Marshall’s abuse of boys.
The accused gave evidence about his awareness of Ric Marshall’s predilection for young boys. He gave evidence that Ric Marshall “most probably” abused Q.
He said that he was aware of Ric Marshall’s sexual activities with young boys, but felt that he had no alternative but to say nothing. He said when I asked him whether it bothered him that the boys might end up suffering what he told me he had suffered as a victim of sexual abuse, he said never once had he seen U unhappy. He didn’t see F unhappy and he didn’t see that much of J.[17]
[17] T1245-1246.
He said:
…and that was a very different story than being dragged out of your bed at 2 o’clock in the morning by a male officer in a boys home into a toilet block and forced on your hands and knees to do oral sex while they’re twisting your ears. I agree with you, it was wrong, I should have told someone or I should have run away or I should have done something, but in comparison to what I had been through, it was a different world.[18]
[18] T1246.6-13.
I remind myself that I must not reason and I have not reasoned that because the accused has acknowledged he was aware of Ric Marshall’s sexual activities with prepubescent boys, he is therefore someone who is likely to abuse prepubescent boys and is guilty of the charges.
I remind myself that the verdicts must relate only to the event charged.
The Witnesses
The complainants Q, J and F gave evidence. U and S were also called by the prosecution to give evidence.
Pursuant to s 69 of the Evidence Act 1929 the court was closed during the evidence of Q, J, F, U and S. U and S gave their evidence behind a screen and J by way of closed circuit television. Permission pursuant to s 34L(2) of the Evidence Act was given to the prosecution and the defence to ask Q, J and F questions as to their sexual activities before, after and surrounding the alleged offending.
The prosecution also called the investigating officer Detective Bulmer and Frank Cwertniak. Frank Cwertniak was involved with the Cottage Theatre at the time of the alleged offending and spent time on a houseboat on the River Murray with Ric Marshall and the accused.
A statement of agreed facts was tendered. A number of exhibits were tendered. The exhibits frequently referred to in evidence were:
·Exhibit P1 - floor plan of houseboat
·Exhibit P2 - black and white photograph of Ric Marshall and two children.
·Exhibit P3 - photograph of a stage scene of the pantomime Hansel and Gretel
·Exhibit P7 - floor plan of the Wattle Street house
·Exhibit P8 - colour photograph of U and Ric Marshall
·Exhibit P9 - photographs of 163 Wattle Street Malvern taken on 15 April 2004.
·Exhibit P10 - photographs of 20 James Street Gilberton taken on 28 August 2010
·Exhibit P12 - brown photo album located by police in the accused’s bedroom
·Exhibit P17 - photograph of the accused in a blue bodysuit
The accused participated in a record of interview on 2 February 2005 and gave evidence. The accused asked that he be permitted to give evidence in closed court on the ground that he would be giving evidence about sexual abuse he had suffered and about his genitalia. He said that this evidence was particularly sensitive and upsetting to him. The prosecution did not oppose a compromise position whereby the court was closed only while the accused gave evidence about his genitalia and the sexual abuse he had suffered.
The accused called his first cousin Joan Campbell and her husband Stuart Campbell to give evidence. His general practitioner, Dr Margaret Bennetts, and his urologist Dr Peter Sutherland were also called to give evidence.
As stated earlier in these reasons, I have not used S’s evidence and have completely disregarded it.
I have scrutinised the evidence of Q, J, and F separately. I have kept in mind the directions that I must give myself. I must be satisfied of each element of the offences beyond reasonable doubt and I must bear in mind the significant forensic disadvantage suffered by the accused, having regard to his particular circumstances in defending allegations based on events said to have occurred up to 39 years ago. I have had particular regard to the criticisms of the complainants’ evidence put to me by Mr Dillon in both his written and oral closing submissions. I have carefully considered those matters and I have scrutinised the evidence of the complainants and do not act on it unless I am satisfied as to both its honesty and reliability. The criticisms made and concerns identified by Mr Dillon do not alter my confidence in the reliability and truthfulness of each complainant’s evidence. I am satisfied that all three complainants were honest and reliable.
In arriving at my assessment of the complainants, I have had regard to their individual demeanours. I have done so as my overall assessment of their evidence.
When looking at the evidence of each complainant in its entirety, there was a quality and coherence to it that was compelling. Their evidence was so convincing and the accused’s denials entirely unconvincing.
Count 1 - Evidence of Q
The first count particularises three specific acts between 1 December 1971 and 30 September 1974. The acts particularised are all acts of buggery occurring at a house at Gilberton, a house at Malvern and a houseboat on the River Murray at Renmark. They are alleged to have occurred in the context of a course of conduct of sexual exploitation involving other uncharged sexual acts.
Counts 2 and 3 are charged in the alternative. Count 2 particularises an act of buggery at Gilberton. Count 3 particularises an act of buggery on a houseboat on the River Murray.
Q gave evidence that he was born on 27 February 1960. He turned 11 in February 1971. Q lived with his family at Para Vista.
In 1971 he met Phillip Cave (Cave). He guessed Cave was 5 or 6 years older than him. Q’s friendship with Cave developed into what he described as sexual abuse. He said that Cave sexually abused him between 1971 and 1974 on numerous occasions.
Cave told Q that he was a cameraman at Channel 7. In mid 1972 Cave took him to Channel 7 where he met Ric Marshall who was the presenter of The Super Saturday Show. After the meeting, Cave told Q that Ric Marshall was impressed with him.
A few weeks later, Cave took Q to meet Ric Marshall at Ric Marshall’s house in James Street, Gilberton. On this occasion Cave left Q with Ric Marshall. Ric Marshall started talking to Q about the sexual activity that Cave had told him that he and Q had engaged in. Ric Marshall took him into a bedroom on the upper level of the James Street premises and had oral sex and then anal intercourse with him. Q said that after Ric Marshall had anal intercourse with him, he met the accused. Ric Marshall mentioned that the accused was jealous or got upset when Ric Marshall got to have “his fun and he didn’t get an opportunity to have fun”. Q said that shortly after being abused by Ric Marshall, the accused sexually abused him. He said that the accused performed oral sex on him and then anal intercourse by penetrating his anus with his penis and ejaculating inside him.
Q said that he was with the accused for no longer than half an hour on this first occasion. He recalled the accused was in his very early 20’s. He recalled that he had dark brown hair, was reasonably well tanned, that he did not have a great deal of body hair and he seemed like a nice person.
Q said that after that incident, he returned to the James Street premises on a number of occasions and that on every occasion Ric Marshall and the accused sexually abused him. He said that the sexual activity always took the form of “predominantly anal intercourse and oral sex, either”[19]. He said that the activity would take place with Ric Marshall and the accused separately. He said Ric Marshall would have anal sex with him in his bedroom and typically, within 20 minutes to half an hour of Ric Marshall having had sex with him, the accused would have anal sex with him. He said anal intercourse with the accused would take place in Ric Marshall’s bedroom on occasions but often in a separate bedroom. He said that he has no clear recollection of how the bedrooms were furnished. He thought that the accused’s penis was circumcised.
[19] T338.34.
Q spent time with Ric Marshall and the accused at a house at a location he did not recall “on the Norwood aspect of Adelaide” and another house at Glenelg. He said he may have gone only once or twice to the Glenelg residence and that sexual activity with the accused occurred on those occasions. He said it was always the same, that “predominantly he would commit oral sex on me, by taking my penis into his mouth until I ejaculated and he would insert his penis into my anus and have sex until he ejaculated”.[20]
[20] T342.3-6.
Q agreed that the other house he said was on the “Norwood aspect of Adelaide”, was the house he identified to police as the Wattle Street Malvern house where Ric Marshall and the accused lived.
Q said that he could not honestly be sure about how many times he visited Wattle Street. He believed that it was towards the end of his association with Ric Marshall and the accused and that it was no more than 5 or 6 times. He said that he predominantly went there on weekends. He recalled a swimming pool at Wattle Street.
The typical pattern of events at Wattle Street was that Ric Marshall would generally have oral sex by taking Q’s penis into his mouth and then have anal sex by inserting his penis in Q’s anus until he ejaculated. A short time later the accused would abuse him in a very similar fashion.[21] This usually occurred in Ric Marshall’s bedroom, but Q recalled on occasions being given a room to himself:
As I recollect I would be abused in that room as well, so it didn’t seem to matter whereabouts I was, I would be abused whenever I was in their company.[22]
[21] T346.29-35.
[22] T347.3-6.
He attended the Cottage Theatre on occasions as he performed small jobs around the place, for example, collecting tickets. He also had a role in the production of The Sound of Music.

He would make his way to the Cottage Theatre or be picked up somewhere, usually by the accused. He would spend one or two nights at the Wattle Street residence. He did not recall how he got home. He understood that he was at the Wattle Street premises with his parent’s knowledge and consent.
He could not describe the vehicle the accused picked him up in. He only had a clear recollection of a Camero and another large vehicle, something like a Fairlane.
Q said that the interval between Ric Marshall and the accused carrying out sexual activity on him would be about half an hour. When asked whether the same person went first, he said “Not that I recall, no, but predominantly I would say Ric Marshall was the first participant.”[23]
[23] T347.34-35.
Q gave evidence about sexual activity at the Cottage Theatre. He said[24]
“…The Cottage Theatre was probably about the only location where sexual abuse occurred that the accused didn’t normally participate as well.”
[24] T345.31-34.
He could recall a few productions, My Fair Lady, The Sound of Music and The King and I. He recalled that the accused played the role of “a young man who was keen on the von Trapp’s daughter and became a Nazi …”[25]
[25] T346.10-11.
Houseboat
Q recalled the accused arriving at his mother’s house and asking whether he would like to go on a houseboat holiday. Ric Marshall was going to be there. Q wasn’t particularly keen on going but his mother virtually insisted. He recalled hastily packing a bag, taking a fishing rod and an air rifle and leaving with the accused to meet up with Ric Marshall at a houseboat. He thought the houseboat trip was in about mid 1973-1974. It was “during the school holiday period, whether it was the first part of an end of term or the summer holiday”[26], he could not be 100% sure. He specifically recalled that the River Murray was in flood and there was a lot of water. He hadn’t been there before. He recalled wearing T-shirts, shorts and jeans.
[26] T348.28-30.
Q said that the fishing rod he took on the houseboat was of significant sentimental value as it was one of the last things that his father bought for him. His father died in August 1974 after a prolonged illness. He said that his father was still alive when he went on the houseboat. He said that it was probably about six months prior to his father’s death that he was on the houseboat. He thought that they boarded in the vicinity of Renmark. He said that Ric Marshall, the dog King and U were on the houseboat.
Q recalled that it was during an interview with Detective Bulmer that U’s name came to him. He said that no one had suggested the name to him prior to him remembering it. He said that he hadn’t seen it on any written material. He described how the name just came to him in a “flash” during a telephone conversation.
Q said that sexual activity commenced pretty much as soon as he stepped on to the houseboat. Either Ric Marshall or the accused would have anal intercourse with him. He said he understood that when one was having anal intercourse with him, the other one would be having anal intercourse with U.
Q said that anal intercourse with Ric Marshall occurred in a cabin and that:
It happened on so many occasions on that houseboat that it was, you know, hard to say where it would happen the most.[27]
[27] T352.17-19.
He said that sexual activity with the accused would take place predominantly in a cabin and at all times of the day and night. He recalled an occasion when a suggestion was made of group sex. Ric Marshall, the accused, U and Q were in the galley or saloon of the houseboat and mutual masturbation was taking place. Q observed Ric Marshall masturbating U. Ric Marshall suggested with the accused’s encouragement that Q and U might like to try masturbating each other, which did not happen. Then Ric Marshall went to U’s cabin. Q was with the accused in either his or the accused’s cabin, where the accused took Q’s penis into his mouth until he ejaculated. The accused then inserted his penis into Q’s anus until the accused ejaculated.
Q described an incident where he had set his fishing rod up for fishing on the back of the houseboat and it was lost overboard. Q was upset. He said either Ric Marshall or the accused promised that they would get him another one. He did not recall if there was an attempt to find it. The rod was not replaced. U also mentioned an incident on the houseboat where a rod was lost overboard. The accused also mentioned a lost rod in his evidence but his evidence was that he had bought it for Ric Marshall as a Christmas present.
Q recalled going shooting with his air rifle. He went by himself on a “little island” formed by flood.[28] Q thought that he was on the houseboat for 5-7 days. Q said U left 3 or 4 days after Q joined the group. Q believed that his parents picked him up. Q only went on one houseboat trip. Q did not recall seeing the other boy after the houseboat trip.
[28] T356.2-4.
Following the houseboat trip, Q went to the Wattle Street residence on a few occasions, where the same sort of sexual activity occurred in generally the same way. He didn’t recall that the accused ever abused him at the Cottage Theatre, although Ric Marshall did.
Following his father’s death, his mother returned to the UK and Q stayed in Adelaide with his stepsister and her husband until November 1974. He then went to the UK but returned to Adelaide in 1975.
Q said that the sexual abuse stopped shortly after the death of his father when his mother and sister went to the UK and he stayed under the guardianship of his older stepsister. Q’s step sister prohibited him from having any further contact with the accused and Ric Marshall, and sent him to a school counsellor.
Sometime after August 1974 and before November 1974, Q defied his sister and went to see Ric Marshall and the accused at the Cottage Theatre. He told them that he had made a disclosure about the activity with them to the counsellor his sister had sent him to. On that occasion Ric Marshall had anal sex with him. The accused was present for the conversation but not while Ric Marshall had sex with him. Q said he believed that there was also sexual activity with the accused on that occasion.[29]
[29] T359.22.
After returning to Australia in 1975, Q approached Ric Marshall asking for money. The accused was present with Ric Marshall at this meeting. They told Q that they might be able to assist if he had sex with them. He didn’t want to and that was the last occasion that he had anything to do with them.
Q first approached the police in February 1997 when he gave a statement to the Victorian police. He subsequently gave a number of statements to the South Australian police.
He drew a diagram of the houseboat floor plan on 14 December 2005, exhibit P1.
Q identified the accused in the Sound of Music program exhibit P4. He identified exhibit P5, which is a photograph of himself in September 1972, aged 12. He identified the James Street Gilberton house in exhibit P10. He also identified the house in Wattle Street Malvern, exhibit P9, and stated:
“…The striking thing that I do recollect is photo 30, the garage being remote from that actual house itself.[30]
[30] T365.22-23.
Q also identified exhibit P13, a notebook sketch he had drawn of the layout of the Cottage Theatre. He indicated the dressing rooms on the left of the stage. Q said the youth in the photo exhibit P8, could be U “As I recall him from the houseboat”.[31]
[31] T371.12-14.
Q was shown exhibit P12, the brown photograph album. He said that he believed that the houseboat in the photographs was the houseboat he went on with Ric Marshall and the accused. He recognised Ric Marshall and the red tracksuit with stripes Ric Marshall is wearing in one of the photos. He recognised the accused. He had a distinct recollection of seeing a snake while on the houseboat. He said this was something that stood out as significant because the river was in flood.
Q was cross examined about the fact that he said he met Ric Marshall in late 1971 and there was no mention of abuse by the accused in his first statement to Victorian police. Mr Dillon submitted that it was of particular concern that there was an unexplained development of Q’s memory between having spoken to Victorian police in 1997 and his evidence in court. Mr Dillon said that there was no mention in 1997 of abuse by the accused following the first meeting with and abuse by Ric Marshall at James Street. Mr Dillon submitted that, when talking about the same incident with Detective Bulmer in 2005, Q gave a fairly graphic account of the abuse he suffered, including details such as billowing lace curtains, but there was no mention in April 2005 of any abuse by the accused at James Street.
Q said that the reason that he didn’t mention sexual activity involving the accused at James Street was because he didn’t believe that he was ever actually asked the question and he wasn’t perhaps quite sure how to introduce that into the statement he was making. He also mentioned that he was guided by police as to what topics he covered on what occasion. He denied that the allegations against the accused are simply dreams.[32] Q said that he didn’t mention the accused when he first made contact with the police in 1996 because:[33]
At the time my understanding was that I was just simply establishing communication with the police and explaining what had happened to me and I think as could be appreciated there was an enormous amount of abuse that had occurred on me and I felt that the rest of the information would be forthcoming by making statements etc.
[32] T448.20-27.
[33] T444.23-29.
It was also submitted that there was a risk of contamination of Q’s evidence. Mr Dillon argued that, given the age of the matter, there was a real risk of prejudice to his evidence, particularly concerning aspects of identification. For example, it was not until sometime in 2004 that he recalled the accused’s surname. It was suggested that by that time he may have been shown items of evidence. He was shown exhibit P12 in around 2004, prior to his 2005 statement. It was suggested that it is possible that other items of evidence or an inadvertent comment by an investigating officer may have prompted his memory and in that event it may be unreliable.
I have carefully considered this criticism. Q consistently referred to the accused’s first name in his statements. He was asked about the process by which he recalled names like that of the accused and U and also the name of the school counsellor when he gave his statement. He denied that police assisted him with his recollection. He said that police had gone to great lengths not to allow him to know the name of the counsellor and he explained how he suddenly recalled the name.[34]
[34] T415.6-12.
I have considered the risk of contamination. The accused does not have to prove contamination. The prosecution must exclude that possibility beyond reasonable doubt. Q’s explanation of how he recalled the names is entirely credible. I accept his evidence that his memory is not a reconstruction. His evidence had a quality about it that was cogent and compelling. I reject the possibility of contamination of his evidence beyond reasonable doubt.
Mr Dillon also criticised Q’s evidence with respect to his memory of the accused not having a great deal of body hair.[35] Q agreed that not once prior to giving evidence in court did he refer to the accused’s lack of body hair. Mr Dillon said that Q was shown a photograph of the accused wearing bathers early in the investigation. I accept Q’s evidence that this memory is not a reconstruction.
[35] T386..
Mr Dillon submitted that the following matters require consideration in deciding whether Q is a reliable witness.
·That the accused abused Q every time he was abused by Ric Marshall at one of the residences and subsequent withdrawal from that position.[36]
·Exaggerations made to investigating officers about the number of times that he was abused by another person.[37]
·His assertion that there were no group sexual activities between Ric Marshall and the accused as against his 1997 statement that group sex occurred on route to Renmark.[38]
[36] T392.20-38.
[37] T402-405.
[38] T413.
Mr Dillon submitted that the way in which Q gave evidence as to facts, is a concern. He said that on close examination the evidence given in a forthright way turns out to be something of a reconstruction and not based on actual memory. For example, during evidence in chief, Q gave evidence that he was abused by both Ric Marshall and the accused at the Cottage Theatre after telling them of his disclosure to the school counsellor. In cross examination, Q admitted that he had no independent recollection of ever being abused by the accused at the Cottage Theatre. Q’s evidence about the sexual activity with the accused at the Cottage Theatre was as follows:
At T358, he said he did not recall the accused “ever abusing” him at the Theatre.
At T359, he said at his meeting with Ric Marshall and the accused following his admission to the school counsellor about being abused by a group of men, he particularly recalled abuse by Ric Marshall and he believed there was sexual activity with the accused. “There had been so much abuse over a period of time that it seemed to fall in line with the standard pattern that those individuals would abuse me in a sexual nature”.
At T345, He said that the Theatre was probably the only location where sexual abuse occurred with Ric Marshall that the accused did not normally participate in.
At 369, Q was asked whether the accused sexually abused him at the Cottage Theatre. He answered “as I recall yes”. He was not able to recall how many times he was abused at the Theatre and he said it did not occur on every occasion that Ric Marshall abused him.
At T417, Q said he did not have any recollection of the accused ever abusing him at the Cottage Theatre.
At T418: “… I couldn’t say that he ever abused me at the Cottage Theatre. As I said previously, it seems to fall in line with their method of doing things.”
Having carefully considered Q’s evidence on this topic, it is clear that he does not recall sexual activity with the accused at the Cottage Theatre.
Mr Dillon submitted that Q’s initial recollection in 1997 about the houseboat trip occurring in June 1972, that it was overcast on the trip and that no group sex took place does not fit with the prosecution theory that Q and U were on the same trip. In respect of the criticism of Q’s initial recollection in 1997 that the houseboat trip occurred around 1972, I accept his evidence that the most significant event in the early 1970’s was the death of his father in 1974 and that it is easy for him to connect events with the death of his father. In evidence Q said the houseboat trip occurred approximately 6 months before the death of his father.
Q’s recollection was that it was overcast whilst he was on the houseboat is of little significance and I do not take it into account.
Q’s evidence was that no group sexual activity occurred on the houseboat. U’s evidence was that group sex did occur. Q said that there was a discussion about group sex, but it did not take place.
Q gave evidence about the fishing rod that was special to him and that it was lost overboard during the houseboat trip. U remembered being on a houseboat where there was fuss about a fishing rod being lost overboard. In fact, he asserted that it may well have been him who accidentally or on purpose caused the rod to be lost overboard.
In cross examination, the accused asserted that he only went on one houseboat trip and that on that trip a fishing rod he had given to Ric Marshall was lost overboard.
Ms Griffith submitted that the accused’s evidence about the rod is a recent invention. Further, Ms Griffith said that I can rely on the assertion that Q and U were on the same houseboat trip because of the similarities in their evidence. It was warm weather, the river was in flood, each said that there was another boy on the houseboat and that sexual activity occurred. Ms Griffith submitted the similarities are such that I can find that there is a real underlying unity in their evidence.
The accused said in his evidence that the houseboat trip he went on was from a few days before Christmas 1973 “through to the end of the next week”.[39]
[39] T1035.27-33.
He said:
…the river was in extreme flood, one of the biggest floods the river had had….[40]
[40] T1036.1-4.
Agreed fact 20 refers to Department of Water SA Government records recording that the River Murray flooded in 1973, 1974 and 1975 with a minor flood in 1976. The 1974 flood was the 3^rd highest on record.
U recalled chasing rabbits around islands caused by the flooding[41] and he recalled fishing. Q gave evidence about the formation of a little island by the flood.[42] He also referred to an occasion when he was on the little island and he was hoping that he might be able to shoot a rabbit. The difference between Q and U is that Q recalled being alone on the island, whereas U referred to being with another boy.[43]
[41] T195.16-19.
[42] T356.2-3.
[43] T195.16.
Q did not select U from the array of 12 photos, exhibit P14, he was asked to look at by police, but Q’s evidence was that the boy on the houseboat had brown hair. U gave evidence that his hair was normally brown but it had been bleached blonde for his role in Hansel and Gretel. The photo array shown to Q included a photo of U with blonde hair. In my view, nothing turns on Q’s failure to identify U. U’s evidence was he went on a houseboat trip after his role as Hansel in September 1973. He told me he dyed his hair back to brown as soon as he could.
U did not recognise the picture of Q as a young boy he was shown in evidence.[44] He couldn’t remember the name of the other boy. He thought he looked a little bit older than him with mousy, blond, longish hair.[45]
[44] Exhibit P5.
[45] T195.9.
Any divergences between Q’s and U’s evidence can be explained by the passage of time.
I have reminded myself of the warnings and directions I have referred to above. I have scrutinised Q’s evidence. I have taken into account Mr Dillon’s submissions and his criticisms of Q’s evidence. I have given particular consideration to Mr Dillon’s submissions about the risk of contamination and reconstruction. I have rejected that risk beyond reasonable doubt. I have also kept in mind the significant forensic disadvantage the accused suffers due to the age of the complaint.
I accept Q’s explanation for the inconsistencies in his evidence with his earlier statements to police. He said that he had focussed and honed his memory for the purposes of this case and other court cases. He said the fact that he did not mention the abuse by the accused at James Street was an oversight. I accept this explanation as credible, particularly when it is borne in mind that Q gave evidence that the abuse he suffered at the hands of the accused was not as sustained and significant as the abuse perpetrated by others, in particular Ric Marshall and Cave. Any prior inconsistencies in Q’s account do not detract from his credibility.
Q was an honest witness who gave his evidence in a straightforward manner. Q’s conflicting evidence about whether he was abused by the accused at the Cottage Theatre and his evidence about the accused having anal intercourse with U on the houseboat caused me to cautiously consider his evidence. U does not make any allegations against the accused. However having scrutinised the whole of Q’s evidence, his evidence on these matters does not shake my confidence in the reliability of the rest of his evidence. I find Q was an honest and reliable witness. Other than with respect to these two matters I accept Q’s evidence beyond reasonable doubt. Q gave compelling evidence about the conduct he said occurred at James Street Gilberton, at Wattle Street Malvern and on a houseboat while he was associated with the accused from 1971 to 1974.

I find Q’s and U’s evidence about the fishing rod, the sexual activity on the houseboat and the river being in flood so utterly compelling and the accused’s evidence about there being no boys on the trip so unconvincing that I am satisfied that Q and U were together on a houseboat with Ric Marshall and the accused. That is, the houseboat trip the accused said he took with Ric Marshall when the River Murray was in extreme flood. Q said the trip took place six months before the death of his father in August 1974. U said the trip he went on occurred after the September 1973 holidays. The accused said the only houseboat trip he went on was over the Christmas 1973, New Year period.
Count 4 and Count 5 - Evidence of J
Count 4 alleges that the accused committed an act of buggery on J at Adelaide between 17 June 1974 and 31 December 1974.
Count 5 alleges that the accused committed an act of buggery on J at Malvern between 17 June 1974 and 31 December 1974.
Each act is alleged to have taken place as part of a course of conduct involving other uncharged acts.
J gave evidence that he was born on 17 June 1960. He was 13 years old when he became involved with the Cottage Theatre. He played the part of one of two page boys in the 1974 production of Camelot. The other page boy was U.
J’s family lived at Port Noarlunga. During the rehearsal period, J discussed transport arrangements with the accused. The accused told him it was important to attend rehearsals and that he could stay at the Wattle Street address if necessary. J said he stayed at Wattle Street about 8 or 9 times. He described that the house had a lean-to at the rear with spare beds, where he and U slept. J often stayed at the Wattle Street house at the same time as U. He identified Ric Marshall’s bedroom as the master bedroom on the floor plan, exhibit P7. He identified the bed/study on exhibit P7 as the room he and U would sleep in. He said that the accused’s room was either in the pantry or the lobby/laundry identified on exhibit P7.
J knew of Ric Marshall as he had seen him on television. He spoke of an encounter with Ric Marshall in the dressing room at the Cottage Theatre. Ric Marshall initiated a conversation about the accused liking J and whether he, J, liked the accused. Ric Marshall told J it was reasonable for men to find each other attractive and people should express themselves and love freely. I remind myself that evidence about this conversation is admissible only to establish by inference that there had been communication between Ric Marshall and the accused with respect to J and in relation to the system of grooming. That is, the system by which J was procured for intercourse by way of communication between the accused and Ric Marshall. J said that following this conversation, Ric Marshall exposed his genitals to him and asked him to suck his penis.
J said that this incident and conversation took place prior to the “bump in” at the end of the rehearsal period for Camelot.
He described an incident when Ric Marshall told him to go and help the accused, who was working up a ladder. J said that the accused asked him to hand him screws and a screwdriver. Whilst he was handing him the screwdriver, the accused squeezed his finger. J said this “…was a gesture that was really obvious, it couldn’t have been more obvious”.[46]
[46] T550.24-28.
J said that at that time he liked the accused. He thought he was a really handsome, well dressed young man. [47]
…like he must have been 20 and he was very nice. He had a nice voice, he had a nice presence and I know I’m saying contradictory things that, you know, he was mean and he was nice, but he was helpful for someone – you know, I was just this kid, kind of a little bit excited because here I was in the grown-ups world of theatre with a TV star in the show and it was even his theatre and it’s a little bit scary and you get a little bit excited and the presence of Peter as the stage manager was one of making you feel like you at least knew what you had to do. Sometimes he made you feel happy around that and sometimes he made you feel a bit intimidated because he was telling you off even though you didn’t feel like you needed to be told off.”
[47] T550-551.
J said that after the squeezing of the fingers incident, the accused asked him whether he would like to come with him to the Gilles Street costume annexe. They travelled in the accused’s car to the “little old house in Gilles Street in Adelaide”. On the way the accused explained to him that Ric Marshall had told him that J liked him and that he, the accused, liked J. The accused asked J if he liked him and J said he did. The accused asked him whether he knew what people did when they liked each other. J said that he didn’t think they got as far as the actual “if you like ‘you will let me fuck you’, part of the conversation until we got inside Gilles Street.”[48]
[48] T552.14-21.
J described the Gilles Street costume annexe as a fairly dingy place where costumes, bits of hardware, old paint tins and the sorts of paraphernalia you would expect to see associated with a theatre company were kept.
J said that the accused directed him to get onto a chaise longue and lower his pants. He said the accused wanted him to “suck his penis”, telling him that this would show him that J liked him and wanted him to feel good. J said:
“I was not a 13 year old that was big on putting other men’s penises in my mouth I thought it was dirty.[49]
[49] T553.6-8.
He specifically recalled:
…that on the end of his penis near the urethra there was what looked like a little sort of crusty bit of what I have since discovered is probably smegma, it was kind of yellow looking, I thought it might have been pus, I just thought it was yucky.[50]
[50] T553.12-16.
He said that the accused:
brushed it away or wiped it away with spit on his hand while he was trying to lubricate himself, but I was not going to put it in my mouth, that’s for sure.[51]
[51] T553.17-20.
After he refused, he said that the accused told him to take his pants down and lie down so that he could have intercourse with him as that was another way of people showing that they care.
J said that as a child he had had bowel operations, so having an adult ask him to drop his pants was not such a big deal. He said that he just went along with it.
J said that the accused’s penis was erect and the only lubricant that he used was spit. He described it as a very painful experience. He recalled that the accused’s penis was not like his. J is not circumcised. He did not know whether the accused had pulled the foreskin back or whether he was circumcised.
He said that the accused penetrated his anus. He described his penis going “well into my arse”. He described the accused thrusting and said “but for me that was just exemplifying the pain, so was protesting”.[52]
[52] T555.22-32.
In response to his protests, J said the accused said something like: “just relax, you will feel better”.
J described the whole experience as traumatic. He said that the accused begrudgingly stopped when he asked him to stop and he seemed, “…a little pissed off”. He said that the accused “did actually make me feel like I had somehow done the wrong thing”. This is J’s evidence regarding count 4.
J continued to participate in the Camelot production after this incident. A few days later, J said Ric Marshall drove him in what he recalled was a creamy white convertible with “red or sort of burnt orange inside”, to the Wattle Street premises. Ric Marshall explained to J that the accused was dissatisfied with J’s interaction with him at Gilles Street costume annexe and that Ric Marshall told him that he would actually enjoy “being fucked if it was done properly”. Ric Marshall then had anal intercourse with J with the use of lubricant in the master bedroom of the Wattle Street premises. This evidence about J’s interaction with Ric Marshall was led by the prosecution to establish by inference that the accused knowingly benefited from the grooming system or process. I remind myself that evidence about this interaction is admissible only in relation to the issue of the grooming system.
J said that after this interaction with Ric Marshall there was an occasion where the accused was masturbating and kissing him back stage of the theatre
The next incident J recalled was an incident at a celebration at the Wattle Street premises. He said that he and U were staying at Wattle Street. J recalled that it was the accused’s 21^st birthday. He was the accused’s birthday present. He was to have anal intercourse with the accused after everyone had left the party. It was J’s understanding that he was the accused’s boy and that U was Ric Marshall’s boy. J did not recall whether the party took place on the day of the accused’s birthday or whether it followed on from a cast party.
In cross examination he said “I think it was a Christmas/cast party. Hang on, I need to be quite clear about this. I think Peter was celebrating his 21^st birthday at the same time. He was, he was turning 21 or he’d turned 21 and there was an end of season party, and I think those things might be the same event…”.[53] He said he thought an Auntie had come from the Riverland and that there was a relative the accused had to “pick up from the bus station or something”.
[53] T661.23-34.
J described that after everyone had gone the accused came to him and said “Come on, we are going to bed. What I really want you to do is fuck me, you fuck me”. I remember him saying, “I really want you to fuck me”.[54]
[54] T563.3-4.
J said that he inserted his penis into the accused’s anus but he didn’t really know what to do and he didn’t think the accused was entirely satisfied. The accused then had anal intercourse with him quite forcefully. He described it was “more like a rape”.[55] J said that the accused’s arm was wrapped around his mouth and he was aggressive. This is J’s evidence regarding count 5.
[55] T568.35-37.
J described the accused’s clothing on the night of the incident and upon being shown exhibit P17, confirmed the accused is pictured wearing the suit he remembered he wore during the celebration.
The accused gave evidence that his 21^st birthday party took place on Sunday 2 November 1974 during the run of Camelot.[56] He agreed it was possible J was at the party.[57]
[56] T1222.36-38.
[57] T1223.8-10.
Ms Griffith submitted that J’s evidence and the accused’s evidence about his party have a close confluence.
J said that on his father’s 47^th birthday on the 17^th of November 1974, Ric Marshall and the accused came to his family home at Noarlunga in the white Camero convertible. U was with them. They asked whether J would like to go with them to have lunch at Victor Harbor. J remembered asking his father if he minded if he went as he didn’t want to hurt his feelings. His father agreed. They travelled to Victor Harbor and then returned to Wattle Street where J stayed overnight.
J said that on the way back from Victor Harbor the accused said “I’m really annoyed with that kid” referring to a boy who had apparently refused to have sex with him. The accused suggested to J, “You might like to try playing with his dick”. … “He doesn’t like me…” and … “I’m not happy with him”.[58]
[58] T581-582.
J thought that he had sexual interaction with the accused that night, “Well, I think there was, I don’t think I – I don’t believe I stayed over at their house without being penetrated, I think like ever”. J said that any night he stayed at Wattle Street it was normal for him to have sexual interaction with the accused, mainly kissing and fondling culminating in the accused anally penetrating him. J said that the accused had penetrative anal intercourse with him on at least four occasions, “probably five or 6” if the occasion at the Gilles Street annexe was included.
During the production of Alice in Wonderland, J wanted to distance himself from the accused and Ric Marshall. He asked if he could sleep at the theatre as things were getting complicated. Alice in Wonderland was produced in the 1975 school holidays. Thereafter J ceased his involvement with the theatre.
After he left the theatre, J saw U in the production of Oliver and he saw him in an advert a few years later. He didn’t speak to him again until the 1990’s when he looked his number up in the phone book and called him. J said the first person he told what Ric Marshall and the accused had done to him was a friend at high school in the late 1970’s. J saw the accused again at Patches Bar when he was 16 or 17. He said on this occasion the accused attempted to open his pants and touch his genitals.
J said in cross examination that it was not possible that he went to the Gilles Street costume annexe with anyone other than the accused.
He was cross examined about the accused’s penis. Mr Dillon submitted that J’s description of the accused’s penis is detailed and does not accord with the accused’s general practitioner’s evidence that the accused is circumcised. J described the accused’s penis as larger than his own.[59] He said that he remembered it looked thick and that Ric Marshall had a larger penis than the accused. He said the accused’s penis looked thick to him as a 13 year old boy. As an adult, he wouldn’t say that it was necessarily thick. I accept J’s explanation of how he perceived the accused’s penis as a 13 year old boy.
[59] T643.1.
J agreed that he originally got the order of events at the Gilles Street costume annexe out of order and he agreed he changed and clarified a few matters in his June 2008 statement. He agreed that he had difficulty in remembering minute details from 35 years ago and that his memory had improved because he had been trying to recall rather than suppress memories.
When asked about why there were inconsistencies in his police statements, he said that he was asked to focus on U. J said that in his initial interviews with Detective Bulmer, he wasn’t guided through but was more or less told to exhaust his memory into the tape recorder.
Detective Bulmer said that his recollection from the initial conversation with J was he alleged he was abused and that is why a police incident report was submitted. The interview with J would have been to obtain a statement to find out what information he had. He agreed that it would be to find out any information that could assist in his investigation against Ric Marshall and the accused.
I have given careful consideration to the inconsistencies in the information J gave in his out of court statement to the police compared to the evidence he gave in court. I accept his explanation for any inconsistency and my confidence in his credibility has not been shaken.
Mr Dillon submitted that J’s evidence fell short of being reliable. J was criticised with respect to the evidence he gave about the accused and Ric Marshall being in a relationship. Mr Dillon submitted that J’s allegations concerning the costume annexe do not fit with the evidence given by Frank Cwiertniak.
The witness Frank Cwiertniak said that there was someone by the name of Barry Dadliffe, who had been Ric Marshall’s partner, who lived in the Gilles Street annexe.[60] Mr Cwiertniak said that all the tools necessary for set production were stored at premises at Bowden. Mr Dillon submitted that Mr Dadliffe was living at the costume annexe and, further, J agreed that it was possible he was living there.[61] He submitted that it was possible that it was someone else who took J back to the annexe. In considering Mr Cwiertniak’s evidence below, I have rejected any inference to be drawn from his evidence that it is a reasonable possibility that someone other than the accused had intercourse with J in the Gilles Street costume annexe.
[60] T781-782.
[61] T639.24-33.
J’s evidence was to the effect that there was continuous contact with the accused from the squeezing of his fingers incident to when the accused had anal intercourse with him in the Gilles Street costume annexe. He was certain it was the accused who took him to the Gilles Street annexe. His evidence was cogent and compelling. I accept J’s evidence beyond reasonable doubt. I find the perpetrator of the anal intercourse with J at the Gilles Street costume annexe was the accused.
J’s evidence about the accused’s penis going well into his anus was criticised. J’s evidence was also criticised regarding the change from his 2006 statement, where he said that Ric Marshall was the only person who actually had success in penetrating him, that the accused pretty much gave up and used to perform oral sex on him because the accused knew J liked kissing. J agreed that was his recollection at the time. In re-examination J clarified his comment about Ric Marshall being the only person who had had success in penetrating him, saying that he had meant that Ric Marshall made him feel comfortable with anal sex. He found that it wasn’t a totally traumatising experience and he did not feel as emotionally overwrought as he had after the accused had anal intercourse with him. He confirmed that he was penetrated by the accused six, seven or eight times.
Mr Dillon submitted that J’s evidence contradicts the evidence of Stuart and Joan Campbell. Mr Dillon submitted that any suggestion that J’s allegations relate to events that occurred at another party at Wattle Street is not supported on the evidence. He also submitted that any suggestion that J stayed overnight under the noses of the Campbells is not supported by the Campbell’s evidence as to their observations of what occurred on that evening. In my consideration of the Campbell’s evidence below, I have rejected any inference from their evidence that there were no children at the 21^st birthday other than the accused’s nephew and any inference that there was no opportunity for the conduct that is the subject of count 5 to have occurred.
J gave his evidence in an articulate manner and in graphic detail. He did not display any ill will towards the accused. I accept that he was an honest and truthful witness. I accept his evidence about the accused having anal intercourse with him at the costume annexe whilst he was involved with the Camelot production and at a celebration during the production of Camelot, coinciding with the accused’s 21^st birthday. Appendix A to the Statement of Agreed Facts states that Camelot was “put on” between 15 October 1974 and 21 December 1974. I have reminded myself of the warnings and directions I must give myself. I have scrutinised J’s evidence and, in doing so, I have borne in mind the significant forensic disadvantage to the accused and the criticisms of J’s evidence made by Mr Dillon. I have absolutely no hesitation in accepting his evidence beyond reasonable doubt.
Count 6 - Evidence of F
Count 6 alleges an act of buggery by the accused on F at Malvern between 20 March 1975 and 30 September 1975.
F gave evidence that he was born on 27 February 1962. He turned 13 in February 1975. He accompanied a neighbour to an audition at the Cottage Theatre for the 1975 production of Oliver. Whilst he did not intend to audition, Ric Marshall asked him to audition. He got a part in the chorus as one of Fagan’s boys. He said the production of Oliver probably took place around the early months of 1975.[62] He was able to identify Ric Marshall and the accused from a copy of a program of Oliver that he had kept, exhibit P20.[63] The words “Cottage Theatre Pty Ltd presents Oliver opening March 26, 1975” appear on the front page of exhibit P20. F identified an inscription on a photograph of Ric Marshall that appears on exhibit P20 was signed at his request by Ric Marshall. The photograph bears the inscription “To A….. and Mum love Ric Marshall”.
[62] T718.27-30.
[63] Exhibit P20.
F said that he met the accused whilst he was involved with the Cottage Theatre. He identified the accused’s photograph in P20 as the actor playing the part of Bill Sykes. He said that the accused was also instrumental in assembling the sets and was the stage manager for the production. By reference to the cast list in exhibit P20, F identified the names of people he could recall from the production. In particular, he said his closest friends were probably U and LP. When rehearsals first started he had to attend the theatre three to four times per week. When it got closer to the opening night “it would get more intense”.

The accused said he knew F as a member of the Oliver cast and once saw him walk into Ric Marshall’s bedroom.[101] He knew F’s brother and shared an interest in English cars with him. F’s evidence about the abuse of him by the accused and the words uttered by the accused at the side of the pool is utterly compelling and I have accepted it beyond reasonable doubt. I find the accused lied to me about having little to do with F.
[101] T1106-1107.
The accused denied ever being in a sexual relationship with Ric Marshall. They lived together at the time of the alleged offending and still do. The accused has taken on Ric Marshall’s surname for reasons he explained in evidence. He insisted that he did not have any interest in sexual activity and wasn’t able to engage in sexual activity.
The accused displayed some animosity toward U. He described him as manipulative and constantly referred to him as always being treated as Ric Marshall’s special person. He made a comment about Ric Marshall always giving U presents, gifts and money, whereas he had to work hard and was barely paid a living wage. He saw U at James Street and Wattle Street. Ms Griffith submitted that there is no doubt that he was jealous of U’s relationship with Ric Marshall which does not sit comfortably with his assertion that he had not ever been in a sexual relationship with Ric Marshall. In cross examination it was put to the accused that Ric Marshall encouraged him to share his interest in young boys. The accused emphatically denied this. He said Ric Marshall knew from what he had told him in James Street when he first started living with Ric Marshall, about the horrific sexual abuse he had suffered it was the “last thing he would do is do that with me”.[102] He denied that Ric Marshall spoke to him about what was happening with the boys and said:
Never, never. He wouldn’t. There was one instance where I screamed at him over the telephone because I was at Auntie Joan’s for Christmas and new year and I rang to wish him a happy new year and U answered the phone and I lost my temper which is something I never do, I actually screamed at him and I said ‘You just can’t control yourself can you?’, that’s about as bad as I ever got with my language, and he sort of told me to ‘F off, if you don’t like it, you know where the door is’.[103]
[102] T1240.29-30.
[103] T1240.33 – 1241.4.
I make it clear that I don’t disbelieve the accused’s evidence that his childhood and early adulthood was devoid of love and nurture and that he was subject to repeated sexual abuse at five institutions and during his time at McNally’s. I also accept his evidence that Ric Marshall took him in at a time in his life when he was very vulnerable and had nothing. It is clear that Ric Marshall was the man in charge. I accept that he was dependent upon Ric Marshall. Mr Dillon said in submissions that Ric Marshall, in allowing the accused to live with him, made him someone who could
“….perhaps give a façade of respectful living … and in some terms perhaps give comfort to anybody who was worried about children staying overnight. … knowing that at least on the face of it, Ric Marshall was in some sort of relationship with another person who was residing in those premises”.[104]
HER HONOUR:    Are you saying that to the outside world it was intended that there be seen to be a relationship between Ric Marshall and Peter Marshal?
MR DILLON:      That’s certainly my reading of the evidence as it were, that Ric Marshall was using Peter Marshall as a beard, a disguise to disguise his own interest.
HER HONOUR:    His sexual proclivities are you saying?
MR DILLON:      Yes, with a person who wouldn’t say anything about it because of the reliance that they had upon him and Ric Marshall was very careful to put himself in that position in Peter Marshall’s life. …
[104] T1332.30-36.
I remind myself that I must not reason that because the accused lived and worked closely with Ric Marshall, gave evidence that he was aware of Ric Marshall’s sexual activities and if Mr Dillon’s submission about the façade of respectful living is correct, acquiesced in that façade and did nothing about any sexual abuse of young boys by Ric Marshall, that he is a person who is likely to commit the offences and is therefore guilty of the offences. I have also borne this warning in mind when considering the accused’s evidence as to why he did nothing about Ric Marshall’s abuse of young boys.
The accused denies the charges and further says that he suffered from sexual dysfunction and was incapable of and had no interest in sexual activity. I have carefully considered the accused’s evidence and, in doing so, I have borne in mind the significant forensic disadvantage he suffers, particularly with regard to his assertion of sexual dysfunction and his inability to access any medical records created before or at the time of the alleged offences. Mr Dillon submitted the accused has, due to the passage of time, been denied the opportunity to call evidence from “people who were in and out of James Street and Wattle Street” and “who quite probably could have had a significant impact on the case”. Mr Dillon also submitted that had the accused been shown the photos in P12 during his interview he may have been able to identify the fishing rod in one of the photographs as the one he gave Ric Marshall and thereby counter any suggestion that his evidence in court about the rod was recent invention.
I reject the accused’s evidence that he suffered sexual dysfunction at the time of the alleged offending that made it impossible to commit the offences. I have accepted beyond reasonable doubt, independently of each other, the direct evidence of Q, J and F, who spoke of the accused achieving erection, his anal penetration of them and his ejaculation.
Although the accused has nothing to prove and he bears no onus in this regard, I find his evidence utterly unconvincing. I reject his evidence beyond reasonable doubt on the central allegations and do not regard anything he said as to those allegations as a reasonable possibility.
I simply do not believe that he turned a blind eye to Ric Marshall’s abuse of the complainants and had no alternative but to do nothing. It is incongruous that he found the idea of sexual activity with boys “incomprehensible”, “horrific”, “disgusting and sick” and yet continued to live, work and socialise with Ric Marshall whose sexual interaction with prepubescent boys, on the evidence before me, was prolific. I do not believe him when he said he was powerless to leave. This is inconsistent with his evidence that he ran away from Ric Marshall to Melbourne on a number of occasions. For example, he gave evidence about the occasion when he wasn’t happy about the fact that Barry was “fairly involved with Ric” in a relationship and he ran away to Melbourne.[105] He also spoke of how when he became frustrated and disillusioned he would drive as far as Tailem Bend or Murray Bridge, park on the side of the road and phone Ric Marshall and say, “I will come back”. He chose to return on each occasion that he ran away. I do not believe the accused when he said words to the effect he found the idea of having sexual interaction with a boy abhorrent. I am satisfied that he shared Ric Marshall’s interest in young boys and returned each time he left because he was an active participant in Ric Marshall’s lifestyle.
[105] T917.
He gave evidence of an occasion when he rang Ric Marshall from Melbourne to wish him a Happy New Year and U answered the phone. I do not accept that he screamed at Ric Marshall “you can’t control yourself” because he found the concept of Ric Marshall having sexual interaction with a boy abhorrent but because he was jealous of Ric Marshall’s relationship with U. His jealousy of U was evident in his evidence. For example, he gave evidence that until U had arrived on the scene he had received a present and he had been taken to a couple of restaurants:
then from the time that U arrived it seemed like Richard’s entire focus, shall we say was about U. It seemed to develop into this from nothing to a point where pretty much everything was about picking up U or taking him somewhere or taking him home or picking him up or going somewhere with him or whatever.[106]
[106] T1181.
I have reminded myself of the warning that I must not reason that because the accused lived with and worked with Ric Marshall and was aware of his sexual abuse of young boys that he is a person who is likely to commit the offences and is therefore guilty of the offences. Bearing this in mind and having regard to the evidence that I have accepted beyond reasonable doubt I find that the accused condoned and was complicit in Ric Marshall’s abuse of young boys. It is clear from his evidence he was living, working and socialising with Ric Marshall at the time of the alleged offending. He pointed to Ric Marshall and others asserting that they were the most likely perpetrators of the abuse he is charged with. Despite his concerted efforts to distance and minimise his participation in Ric Marshall’s lifestyle I am satisfied beyond reasonable doubt he was an active participant in that lifestyle.
I am conscious of the fact that rejection of the accused’s evidence does not prove those allegations. Those allegations need to be considered on their individual merits. To convict on any one count I must be satisfied of the allegations in relation to that count beyond reasonable doubt.
I am satisfied the accused perpetrated the abuse alleged by the complainants I have found proved beyond reasonable doubt.
Evidence of Joan and Stuart Campbell
The accused’s first cousin, Joan Campbell, gave evidence about travelling to Adelaide to attend his 21^st birthday. Mrs Campbell stayed at the Wattle Street premises and recalled the accused introducing her to other guests at the party including a girl “introduced to us as Peter John’s girlfriend”. She recalled the accused’s nephew who was a small child was at the party.
Mrs Campbell was asked whether she noticed any young men or young children at the party. Her answer was:
No. There were no other children I don’t think. No, I can’t remember, but I don’t recall seeing children. [107]
[107] T1266.32-33.
In cross examination she was asked if she recalled seeing young boys aged 11 and 13 at the party. She said:
No I don’t recall seeing any children that age. I mean, my mind after all these years but when I think “it all seemed an older crowd.[108]
[108] T1271.7-9.
She also said:
I can’t remember if there was any children, I don’t recall that I saw any, but that’s what I recall. [109]
[109] T1271.19.
She said all the beds were taken in the house by her, her husband, the accused, his sister, her son and Ric Marshall. She said no one else stayed over night.
Stuart Campbell, Joan Campbell’s husband said that the only child he remembered at the party was the accused’s nephew. He said:
It was quite a mature group of people and I can’t recall any other children there.[110]
[110] T1275.30-32.
He said no children or young men did not stay over to his knowledge and there was certainly were not any the next morning. He recalled sleeping with his wife in a double bed.
I accept Joan and Stuart Campbell gave their evidence honestly and were not trying to mislead me regarding the presence of children at the party. However their evidence was vague and unhelpful as neither purported to be certain about the presence of children. Their evidence is also at odds with the accused’s evidence who said it was likely U and his family were at the party and it was possible J was present. Mr and Mrs Campbell were either mistaken or did not know whether children other than the accused’s nephew were at the party. I reject any inference from their evidence that it is a reasonable possibility that the accused’s nephew was the only child at the party and that there was no opportunity for the conduct that is the subject of count 5 to have occurred.
Evidence of Dr Sutherland
Dr Sutherland was called to give evidence about the accused’s asserted sexual dysfunction. Dr Sutherland gave evidence that he first saw the accused in 1994 and despite searching he has no notes from that time. He said that it is his practice to shred notes if he has not seen a patient for seven years. Dr Sutherland said he prepared a report in relation to the accused based on his recollection and notes of his consultation with the accused in 2005.
Dr Sutherland gave evidence that during his examination of the accused in 2005, he had particular regard to his penis and other genitalia. Dr Sutherland noted that the accused had had his testicles removed in 1986. He observed that the accused sexual characteristics were poor. He had no male hair distribution at all, his scrotum was small and flat and his penis was shrunken in size.
Dr Sutherland was not able to give an opinion regarding the length and calibre of the accused’s penis in the early 70’s because of the intervening circumstances of the removal of the accused’s testes in the mid 80’s. He was asked by Mr Dillon:[111]
One of the things that you’ve said in your report is that his penis is typical of a man who had delayed puberty, poor formation of external genitalia and then castration in his early 30’s. Were you able to say, from your examination in 2005, what would have been the size of Mr Marshall’s genitalia at around the time he was 20 years of age.
Dr Sutherland answered:[112]
No, I really wouldn’t. I couldn’t say with certainty but what I said in 2005 was I felt that his condition then was consistent with that history but, equally, if a man has his testicles removed, what’s close to 25 years ago, there can be effects of shrinkage really purely due to that as well and to make a judgment as to what’s happened prior to that time and what’s happened subsequently, it’s a difficult thing to answer.
[111] T1286.8-14.
[112] T1286.15-22.
Dr Sutherland agreed it would be helpful to have had access to any medical records created in the 1970’s concerning the accused. However, Dr Sutherland said that he could not form a definitive opinion about the accused’s sexual functioning in the 1970’s without having assessed him personally at that time. He said:[113]
“…I wouldn’t be happy about making really definitive objective statements without direct personal experience from that time but any information gained from that time would be useful in helping to support the argument, yes.
[113] T1287.7-11.
In cross examination Dr Sutherland agreed that a person suffering a lack of testosterone may suffer a range of symptoms from virtually no symptoms to quite marked loss of libido. His evidence on this issue was:
Q.On the assumption that at the age of 20 Mr Marshall did suffer from some androgen deficiency which pre-dated the removal of his testes, what sort of symptoms might he have suffered.
A.I think if a man has a lack of testosterone through that time he may have a lack of libido, he may have a lack of muscle tone and muscle strength. They’re really probably the main issues, sort of a lack of sexual direction and sexual interest and a lack of muscle tone.
Q.When we’re talking about thee hypothetical symptoms, do they exist in a spectrum.
A.Yes.
Q.That’s to say, from one individual to the next.
A.Yes.
Q.There might be a lack of libido or there might be a completely unaffected libido.
A.I mean weight-lifters give themselves testosterone in an effort to build their muscle mass and one of the sequelae can be an overly active libido, so that’s the counter to what I’m describing.
Q.If a person is suffering a lack of testosterone, the symptoms they suffer might range from virtually no symptoms whatsoever to a quite marked loss of libido.
A.Correct. [114]
[114] T1289.28 – 1290.13.
Dr Sutherland was unable to express any opinion about the accused sexual functioning in the early 70’s.
Further, he agreed there is no way of knowing what the accused might have experienced in his 20’s even if he did suffer androgen deficiency.
Mr Dillon submitted Dr Sutherland’s evidence was moderately supportive of the accused’s account of his sexual functioning. I disagree. Dr Sutherland evidence was that he was unable to give a definitive objective opinion about the accused’s sexual functioning in the early 1970’s without having personally examined him in the 1970’s prior to removal of his testes. His evidence was that the accused suffered sexual dysfunction when he examined him in 1985 and he continues to suffer it. His evidence was not supportive of the accused’s assertion he suffered sexual dysfunction in the early 1970’s and he was therefore incapable of the conduct with which he is charged.
I accept Dr Sutherland’s evidence. I reject any inference, even as a reasonable possibility, from his evidence that the accused was incapable of engaging in the conduct with which he is charged at the time he is alleged to have engaged in it. I have accepted independently of each other the direct evidence of all three complainants who gave clear, compelling evidence of the accused achieving erection, his anal penetration of them with his penis and ejaculation. I accept beyond reasonable doubt the accused was capable of committing the offences with which he is charged between 1971 and 1975.
Evidence of Dr Bennetts
Dr Bennetts has been the accused’s general practitioner since February 1982. Dr Bennetts confirmed the accused is circumcised and that according to the history she had taken from the accused he was circumcised close to birth. Dr Bennetts said she had been unable to locate the medical records concerning the accused, held by his previous general practitioner, Dr Muecke. Dr Bennetts confirmed the inquiries she had made regarding medical records pertaining to the accused only concerned records held by Dr Muecke and not any hospital records that may be in existence.
I accept Dr Bennett’s evidence.
The Law
Elements of Persistent Sexual Exploitation of a Child
The offence of persistent sexual exploitation of a child contrary to s 50 of the Act, comprises the following elements which must be proved beyond reasonable doubt before an accused can be found guilty:
1.    that the accused was an adult at the time of the alleged offending;
2.    that the accused committed more than one act of sexual exploitation as defined;
3.    that the acts of sexual exploitation were committed against a particular child, i.e. the same child;
4.    that the acts relied on occurred over a period of not less than three days;
5.    that the person against whom the acts were committed was at the time of the offence under 17 years.
The dates are not material particulars, although the charge requires the period within which the alleged acts of sexual exploitation occurred to be specified.
In this case, three instances of buggery on three separate occasions are alleged between 1 December 1971 and 30 September 1974.
Elements of Buggery
Count 2 is a charge of buggery contrary to s 69 of the Act 1935-1971. Counts 3, 4, 5 and 6 are charges of buggery contrary to s 69(1)(a) of the Act 1935-1974.
The offence of buggery in this matter comprises the following elements each of which must be proved beyond reasonable doubt:
1. the accused penetrated the anus of the complainant
2. he did so intentionally
There is no defence to an offence against section 69 of the Act 1935-1971(Count 2). Consent is a defence to an offence against section 69(1)(a) of the of the Act 1935-1974 where both parties are over the age of 21. The defence is not relevant to Counts 3, 4, 5 and 6 as the complainants were all under the age of 21 at time of the alleged offending.
Findings
Count 1
I have indicated that I accept Q as a witness of truth. I reject the evidence of the accused in relation to the charges against him. The rejection does not mean that he is guilty. I must still look at the evidence produced by the prosecution on this count and ask myself if, having taken into account the warnings and the significant forensic disadvantage suffered by the accused, I am satisfied beyond reasonable doubt that the accused is guilty.

As I have accepted Q’s evidence beyond reasonable doubt independently, I do not strictly need to consider the cross admissibility of the evidence proved in respect of the other counts. I indicate that, had I considered it necessary, the evidence of J and F is relevant and admissible to establish an underlying unity, system or pattern.
The accused was an adult at the time of the offending and Q was under the age of 17 years. The acts detailed were all committed against Q over a period of not less than 3 days.
I find the conduct comprising the ongoing acts was:
a. anal sexual intercourse with Q at James Street Gilberton;
b. anal sexual intercourse with Q at Wattle Street Malvern, and
c. anal sexual intercourse with Q on a houseboat on the River Murray
I find that between 1^st December 1971 and 30^th September 1974, at Gilberton, Malvern and Renmark over a period of not less than 3 days the accused committed more than one act of sexual exploitation of Q, a person under the age of 17 years.
I do not regard it as a reasonable possibility that the conduct, the subject of count 1, did not occur. I am satisfied that the prosecution has proved each element of the charge beyond reasonable doubt.
I find the accused guilty of this count.
Counts 2 and 3
As counts 2 and 3 are charged in the alternative, there is no need to proceed to verdict in relation to those counts.
Count 4
I have indicated that I accept J as a witness of truth.
I reject the evidence of the accused in relation to the charges against him. The rejection does not mean that he is guilty. I must still consider whether, on the evidence produced by the prosecution on this count, having taking into account the warnings and the significant forensic disadvantage suffered by the accused, I am satisfied beyond reasonable doubt that the accused is guilty.
As I have accepted J’s evidence beyond reasonable doubt independently, I do not need to consider the cross admissibility of the evidence proved in respect of the other counts. I indicate that, had I considered it necessary, the evidence of Q and F is relevant and admissible to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
I do not regard it as a reasonable possibility that the conduct, the subject of count 4, did not occur. I am satisfied that the prosecution has proved each element of the charge beyond reasonable doubt.
I find that the accused between 17^th June 1974 and 31^st December 1974 committed an act of buggery on J a person under the age of 21 years at the Gilles Street, Adelaide costume annexe.
I find the accused guilty of this count.
Count 5
As I have indicated, I accept J as a witness of truth.
I reject the evidence of the accused in relation to the charges against him. The rejection does not mean that he is guilty. I must still look at the evidence produced by the prosecution on this count and ask myself if, having taking into account the warnings and the significant forensic disadvantage suffered by the accused, I am satisfied beyond reasonable doubt that the accused is guilty.
As I have accepted J’s evidence beyond reasonable doubt independently I do not need to consider the cross admissibility of the evidence proved in respect of the other counts. I indicate that had I considered it necessary, the evidence of Q and F is relevant and admissible to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association.
I find that the accused between 17^th June 1974 and 31^st December 1974 at Malvern committed an act of buggery on J, a person under the age of 21 years.
I do not regard it as a reasonable possibility that the conduct, the subject of count 5, did not occur. I am satisfied that the prosecution has proved each element of the charge beyond reasonable doubt.
I find the accused guilty of this count
Count 6
I have indicated that I accept F as a witness of truth.
I reject the evidence of the accused in relation to the charges against him. However, that rejection does not mean that the accused is guilty. I must look at the evidence produced by the prosecution on this count and ask myself, if, having taken into account the warning and significant forensic disadvantage suffered by the accused, I am satisfied beyond reasonable doubt that the accused is guilty.
As I have accepted F’s evidence beyond reasonable doubt independently, I do not need to consider the cross admissibility of the evidence proved in respect of the other counts. I indicate that, had I considered it necessary, the evidence of Q and J is relevant and admissible to establish an underlying unity, system or pattern and to rebut the suggestion of innocent association
I do not regard it as a reasonable possibility that the conduct, the subject of count 6, did not occur. I am satisfied that the prosecution has proved each element of the charge beyond reasonable doubt.
I find that between 20^th March 1975 and 30^th September 1975 at Malvern, the accused committed an act of buggery on F a person under the age of 21 years.
I find the accused guilty of this count.
Suppression Order
At the commencement of trial I made an order per s 69A(1)(b) of the Evidence Act suppressing from publication the name, address and occupation of U and S or anything tending to identify them on the grounds of undue hardship. That order remains in place permanently.