R v Marshall (No 3)
[2007] SADC 103
•11 October 2007
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARSHALL (No 3)
Criminal Trial by Judge Alone
[2007] SADC 103
Reasons for the Verdict of His Honour Judge Clayton
11 October 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused mentally unfit to stand trial - trial of objective elements of two counts of indecent assault, four counts of buggery and one count of procuring an act of buggery.
VERDICT: Objective elements of one count of buggery and count of procuring an act of buggery established beyond reasonable doubt - not guilty of remaining counts.
Criminal Law Consolidation Act 1935 ss 69 and 269M-B, referred to.
Longman v R (1980) 168 CLR 79; Crampton v R (2000) 206 CLR 161; Doggett v R (2001) 208 CLR 343; Nieterink v R (1989) 76 SASR 56; R v S (1998) 102 A Crim R 418; BRS v The Queen (1997) 191 CLR 275, considered.
R v MARSHALL (No 3)
[2007] SADC 103
The accused has been found mentally unfit to stand trial. These are the reasons for my verdict on a trial of the objective elements of the offences pursuant to section 269M-B of the Criminal Law Consolidation Act 1935. The accused elected for trial by judge alone.
The accused is charged with two counts of indecent assault, four counts of buggery and one count of procuring an act of buggery. The offences are alleged to have been committed between 26 August 1973 and 2 October 1975. I refer to the particulars of the alleged offences in my consideration of the individual charges.
The only evidence consisted of written witness statements, documents, photographs and a videotape. Although the credibility of the witnesses, in particular the complainant, was challenged by the accused there was no cross-examination and no oral evidence. In those circumstances the resolution of issues of credibility has been rather artificial and has not been easy.
The actual complaint which gave rise to this prosecution was not made to the police until 2003. There are references to the complainant seeking treatment from a psychiatrist prior to that and there is a reference to telephone calls by the complainant to the Sexual Assault Unit in around 1989, but there is no evidence which establishes any specific earlier complaint. Whatever the position there was a significant delay between the times when the offences were allegedly committed and the time when the complainant first reported them. The accused did not become aware of the complaint until about 30 years after the alleged events.
I accept without hesitation the need for a warning of the type referred to in cases such as Longman v R[1], Crampton v R[2] and Doggett v R[3]. This is a case where the evidence of the complainant must be carefully scrutinised.
[1] (1980) 168 CLR 79
[2] (2000) 206 CLR 161
[3] (2001) 208 CLR 343
The accused is presumed to be innocent until his guilt has been established to the required degree. I must be satisfied that the prosecution has proved the objective elements of each of the counts beyond reasonable doubt. It is not sufficient for me to find that the accused might have committed an alleged crime or even that he probably committed an alleged crime. As is the case with any criminal prosecution I must be satisfied that each of the objective elements of each of the counts has been proved beyond reasonable doubt.
In addition to the seven offences which have been charged the statements refer to a course of conduct and uncharged acts. The evidence of uncharged acts was admitted without objection. The prosecutor submitted that the uncharged acts are important to establish that the seven charges on the Information are not isolated events and that there was an escalation of offending by the accused.
The complainant and the accused were involved in a pantomime called “Hansel and Gretel” which was performed at a theatre in Adelaide during the school holidays in 1973. The accused was the promoter of the production and played the role of Dame Beezneez. The complainant was cast in the role of Hansel. In addition the accused was the compere of a children's television program. Promotional material described him as “the best known theatrical personality in S.A.”.
After the production of “Hansel and Gretel” came to an end the friendship between the complainant and the accused continued and the complainant was involved in other theatrical performances produced by the accused. The friendship extended to the family of the complainant and appears to have continued until at least 1976. The evidence does not establish how the friendship came to an end.
In Exhibit P1, a signed statement dated 10 May 2004, which contains the evidence which would normally be given as evidence in chief, the complainant said that between 1974 and 1975 the accused collected him from school to take him to rehearsals for a pantomime, to the shops, to dinner and in most instances to his house to have sex with him. In the statement the complainant said that when he was aged 12 to 13 years, between 1974 and 1975, the accused had anal intercourse with him on average once a fortnight. Even if I were to accept that evidence it would not establish the objective elements of particular offences which are alleged.
Similar fact evidence can place the alleged offending in context and can also establish a sexual attraction by the accused towards the complainant. However similar fact evidence cannot be used for the purpose of drawing an inference that the accused is likely to have committed the offences with which he is charged. Nieterink v R[4]. In any event I should not act upon the evidence of uncharged acts unless satisfied that the commission of particular uncharged acts has been proved. The complainant’s written statement refers briefly to uncharged acts of intercourse at Malvern, Henley Beach or Grange, Mylor and on a houseboat. Vague and unparticularised allegations take the matter nowhere. That does not mean that the uncharged acts did not take place; it simply means that the allegations of unspecified and uncharged acts do not prove the offences which have been charged.
[4] (1989) 76 SASR 56
Mr Mead, who appeared for the accused, attacked the credibility of the complainant. Some of his criticisms relate to specific charges. I will refer to those specific criticisms when I come to discuss the particular counts. Other criticisms relate to the credibility of the complainant generally.
In Exhibit P1 the complainant described the incident which has given rise to Counts 2 and 3. The complainant said he was confused by what took place and that he was not sure whether he really understood what was going on at the time of the alleged offending. He said that at that time he may have had one sex education lesson at school, but male and male sex was never discussed and at the time his sexual experience was nonexistent. He specifically referred to the fact that neither he nor his friends were sexually active at that time, said he did not reach puberty until about the age of 13 and that at the time of the alleged offending he was a young and innocent boy. He said he had never even kissed a girl or had a girlfriend.
Other evidence established that prior to the time when the accused is alleged to have committed Counts 1, 2 and 3, the complainant had been sexually abused in January 1973 at a youth camp by a person called “Brandenberg”. The complainant subsequently raised the abuse by Brandenberg with his parish priest who also started abusing him. In a statement signed on 2 June 2004, which focuses on the conduct of Brandenberg and the priest, the complainant referred to his leading role in the pantomime and said that the priest paid him more attention after he became involved in the play. If that was correct the abuse by the priest must have commenced in September 1973. In another statement the complainant said that the priest began abusing him during the time that he was also being abused by the accused and that the abuse by the priest began in 1975. A police incident report (Exhibit A55) records that the complainant said that the offending by the priest was in 1973-74. While the precise chronology is not clear, I am satisfied that the incident involving Brandenberg predated any of he alleged offending by the accused. The statement by the complainant that he was sexually inexperienced at the time of Counts 1, 2 and 3 was therefore incorrect and misleading.
The story does not end there. The complainant wrote to the priest on 22 June 2002 alleging abuse by the priest at both the home of the priest and a church during the years 1974 to 1976. The complainant demanded that the priest transfer a house to him in return for his silence. Within a week or so of receiving the letter from the complainant the priest admitted the truth of the complainant's allegations to church authorities. While the letter to the priest does not show the complainant in a very good light, the admission by the priest demonstrates that the complaint about the conduct of the priest was not a false accusation by the complainant.
The matters raised by counsel for the accused do not prevent the court from accepting the evidence of the complainant as to specific complaints. However the misleading claim in his statement that he was sexually inexperienced at the time the accused allegedly committed the first three offences casts doubt upon the reliability of the complainant generally and provides further reason to scrutinise his evidence carefully.
I turn now to consider the separate counts.
Count 1
The first count is an allegation of indecent assault contrary to section 69(1)(b)(iii) of the Criminal Law Consolidation Act 1935. The particulars allege that between 26 August 1973 and 8 September 1973 at Adelaide the accused indecently assaulted the complainant, a person of the age of 11 years.
As I have mentioned the accused and the complainant were playing roles in a production of “Hansel and Gretel”. The complainant says that the accused showered him with attention and praise, showed a definite interest in him and took him to restaurants between the afternoon and evening rehearsals.
In his written statement (Exhibit P1 dated 10 May 2004) the complainant described the first alleged offending. He said it was on stage during a live performance of the pantomime in the September holidays in 1973. At that time the complainant was 11 years old. It was just prior to his 12th birthday. The complainant described the alleged offending in this way:
... Just before the lights went out (the accused) and I made our way to the rear of the stage in readiness for the next scene. I can remember him grabbing one of my hands and placing it underneath his dress and against his penis. He made me rub his penis up and down with one of my hands on the outside of his pantaloons. This lasted for several seconds. I think that this happened from the first performance. This occurred at the same scene change of each performance, which was twice a day during the week and once on Saturdays. I think that this may have happened about eight times.
Eventually this graduated to include making me put one of my hands down the front of his pantaloons and around his penis where I would have to stroke and rub his penis for several seconds. This may have occurred about half a dozen times. All in all there were twenty two performances and I can't remember too many performances where I wasn't forced to do something...
The basis of that complaint is that the accused made the complainant rub the penis of the accused.
Contrary to the submission on behalf of the accused I find that there could have been an opportunity for the offending while the complainant and the accused were waiting at the back of the stage behind the scrim. The evidence does not establish that there was no opportunity for the offending to take place. In addition I do not accept the submission that the costume of Dame Beezneez worn by the accused, which is shown in photographs, would have made it impossible for events to have occurred in the way described by the complainant.
There is no evidence which corroborates the evidence of the complainant.
I am only concerned with the single act which has been charged. All the other instances of similar conduct on the stage during the performance are uncharged acts and the complainant's evidence of those acts cannot establish the single specific act which it is alleged to give rise to Count 1.
Defence counsel referred to a discrepancy between the description of the first alleged offence in Exhibit P1 and the description in the record of an interview on 19 September 2003 (Exhibit A62). In that interview the complainant described the initial incident as the accused touching the penis of the complainant, although later he did discuss incidents when the complainant was required to touch the penis of the accused.
The inconsistency as to what precisely did occur on the first occasion gives rise to a doubt about the exact nature of the act which is alleged to constitute the offence.
Whether the accused handled the penis of the complainant or forced the complainant to handle his own penis an offence would still have been committed. However, it is important that the precise incident should be identified for reasons such as autrefoit convict or autrefoit aquit. The need for particularity in cases where the act relied upon is one of a series of alleged acts by the accused was made clear by the Queensland Court of the Appeal in R v S[5]. When it comes to the proof of a criminal offence a scattergun approach is not sufficient.
[5] (1998) 102 A Crim R 418
Further uncertainty as to the number of times that the accused indecently assaulted the complainant during the course of the pantomime is evident on the face of the statement. There are references to an indecent assault occurring at the same scene change of each performance, to an indecent assault occurring about eight times and to an indecent assault occurring at most of the 22 performances.
I find that the evidence and particulars are not sufficiently specific to identify the precise conduct which is relied upon in support of Count 1. I am not satisfied that the objective elements of the offence are established
I find the defendant not guilty of Count 1.
Counts 2 and 3
Counts 2 and 3 relate to the same occasion and it is convenient to consider them together.
Count 2 alleges the offence of indecent assault. The particulars allege that between 26 August 1973 and 8 September 1973 at Gilberton the accused indecently assaulted the complainant, a person of the age of 11 years.
In her opening the prosecutor said that the act relied upon to establish Count 2 was the digital penetration of the anus of the complainant by the accused during the course of applying a lubricant.
Count 3 alleges the offence of buggery contrary to section 69(1)(a) of the Criminal Law Consolidation Act 1935. The particulars allege that between 26 August 1973 and 8 September 1973 at Gilberton the accused committed buggery with the complainant, a person of the age of 11 years.
In Exhibit P1 the complainant said that the first time the accused had sexual intercourse with him was during the time when the pantomime was being performed in September 1973. He said that the event occurred during the second week of the September holidays between morning and afternoon performances, that is between midday and about 1.30pm. At that time the complainant was aged 11 years.
In the written statement the complainant said:
... So around 12.00 midday in the second week of the September holidays 1973, Rick Marshall took me to his house in his car… somewhere in Gilberton…
I can't remember the reason for going there. All I can remember is being in Rick Marshall’s bedroom, him having sexual intercourse with me, me going to the toilet, and then both of us leaving to get ready for the afternoon performance.
After describing the house of the accused the complainant said:
I can remember lying on top of the bed, rather than under any blankets or sheets. I can remember Rick Marshall asking me to take my clothes off and he took his clothes off. I can't remember what we were wearing. We got totally naked and then lay down on the bed. I can remember that the bed was either a double bed or queen bed and the pillow end was up against the back wall, which meant that it basically faced the front door.
I can remember him kissing me on the mouth, with an open mouth. This was the first time he kissed me in this way and I was in shock and didn't know how to respond. The next thing that I can remember is that he then put some KY gel on his penis and the rubbed some on my anus. I think that this would have been the first time that I saw his penis, which I cannot remember whether he was circumcised or not and his penis was fully erect. I would describe it as an average size, without it being particularly large, thin, thick or small.
I can't remember any conversation being said. I can't remember how I felt about all this, probably confused mainly. I am not sure whether I really understood what was going on. I may have had one sex education lesson at school, but male and male sex was never discussed.
I can remember that I was lying on the right side of the bed on my left hand side when he inserted one of his fingers inside my anus, probably to rub gel around to prepare for sex. He was lying behind me on his left side, with his left arm under my body. That didn't last very long before he inserted his penis into my anus. He then moved his penis in and out of my anus for a minute or so. I can remember this hurting a lot and me flinching but I doubt whether I said anything about it because I didn't think that I had much control over the situation.
He then lay on his back and he did so his left arm held me around the chest area, forcing me to roll with him. At this stage his penis was still in my anus. I was now lying on top of his body. He then continued to move his penis in and out of my anus by moving his body. He held me in position by holding me around my chest area with his left arm. I think that this only lasted a minute until he ejaculated in my anus. He then released me and rolled me off. I think that he suggested that I go to the toilet and clean myself up.
… At this stage my sexual experience was non-existent. I had had a sex education class but I didn't masturbate or have wet dreams, and neither did my friends. I didn't reach puberty until about 13 years old, so I was quite a young and innocent boy. I had never even kissed a girl or had a girlfriend…
Prior to signing Exhibit P1 the complainant had been interviewed by a police officer on 19 September 2003. The interview is recorded in Exhibit A62, which was admitted into evidence as part of the case of the accused against the opposition of the prosecution. The description of the event given during the interview in 2003 is to be contrasted with what the complainant said in Exhibit P1 in 2004.
During the interview in 2003 the complainant described travelling to the home of the accused then said “Rick Marshall had anal sex with me, he raped me”. He was asked whether he knew what was going to happen when they got inside the house and replied, “I probably thought we were just going to do what was happening at the theatre”. The complainant could not remember whether any discussion took place or who removed the clothes of the accused. The interview continued in this way:
Q. Did he have a conversation with you in that bedroom.
A. I can't remember.
Q. Who removed Rick Marshall's clothes.
A. I can't remember that either.
Q. Is it a possibility you could’ve removed his clothes.
A.Possibility he removed his own, he’s removed his and possibly he removed mine and I remember I don't actually, I can't really remember. I remember at the first time that he had penetrative sex with me and I remember how sick and ill I felt and I remember going to the toilet afterwards at the house but I can't remember anything about the actual details…
Q. Once your clothes have been removed are you saying you’re both absolutely starkers.
A. Mm hm.
Q. No clothing on anyone.
A. No.
Q. Describe what the furniture was in the room.
A. I can't, I can't remember that, that bedroom.
Q. Other than a bed, other than-
A. A queen size bed. I can't remember.
Q. Okay, what happened on that queen size bed.
A. Um-
Q. Are you okay.
A. Yeah, yeah, yeah, I'm actually- I actually struggle to remember this. I mean I know what happened but the lead-up to the actual parts, I mean I was eleven, so it was thirty years ago, you know, probably almost to the day actually. I would’ve- I performed oral sex on him, I definitely touched him and he touched me. Everything would’ve been an extension of-
Q. Just explain to me - and I'm talking about it just so we know for the tape - now when you say you had oral sex with him, what did you do.
A. Um, took his penis in my mouth.
Q. Okay and so after the oral sex, what happened then. The anal sex or was it the other way around.
A. No, it was oral, then anal.
Q. And after that.
A. After that I went to the toilet.
Q. Now did you resist him at all.
A. Um, I probably questioned but I didn't resist. I don't think I resisted, no.
Q. And when he had oral, when he had anal sex with you, was there any suggestion that anything else happened that you can remember.
A. Um, he definitely ejaculated inside me.
The fact that the complainant was able to recall more details about the event in 2004 than he had been able to in 2003 is a reason to doubt his credibility. Also there are fundamental differences in the nature of the incident described. In 2004 the complainant was able to remember the accused asking him to take his clothes off. He described the accused kissing him with an open mouth and he described the way that the accused held him. In 2003 the complainant could not remember who removed the clothes of the accused but postulated that he had removed his own clothes and also removed the clothes of the accused but concluded that topic saying he could not really remember. In 2003 he did not describe the accused kissing him with an open mouth but said that he performed oral sex on the accused by taking his penis in his mouth. In 2003 he did not describe the act of digital penetration which forms the basis for Count 2.
After the production had finished the complainant and his family went interstate on a holiday. The mother of the complainant told him that she had heard that the accused was homosexual and asked whether the accused had done anything with the complainant. The complainant replied that the accused never tried anything. In Exhibit P1 the complainant said that he lied to his mother out of embarrassment because boys were not supposed to kiss and he did not want to be known as another man's boyfriend.
The statement of the complainant about his previous sexual experience at the time of Counts 2 and 3 was incorrect. It is now known that the complainant had been abused by Brandenberg whilst at the youth camp and was not sexually inexperienced as he claimed. The incident at the youth camp is not something which the accused was likely to have overlooked at the time that he signed Exhibit P1 on 10 May 2004, particularly having regard to the fact that the accused had written to the priest whom he had consulted about the treatment by Brandenberg on 22 June 2002. This inaccuracy in the evidence of the complainant provides a reason to doubt his veracity.
I do not regard the untruthful denial which the complainant made to his mother as being of much significance because I accept that embarrassment may have motivated him to deny the suggestion that the accused had done any thing to him.
It comes down to a question of whether the complainant’s misleading statement as to his sexual experience at the time of Counts 2 and 3 and the fact that he gave more detail and gave a different description of the incident in 2004 from the description he gave in 2003 provides a reason to doubt the evidence of the complainant. After considering the matter carefully I have concluded that there is reason to doubt the complainant's evidence about Counts 2 and 3.
I am not satisfied beyond reasonable doubt that the objective elements of the offences of indecent assault and buggery are established.
There will be a verdict of not guilty of Counts 2 and 3.
Counts 4 and 5
Counts 4 and 5 also relate to a single occasion and it is convenient to consider them together.
Count 4 alleges the offence of buggery. The particulars are that between 8 September 1973 and 31 December 1974, at Malvern, the accused committed buggery with the victim, a person of the age of about 12 years.
Count 5 alleges the offence of procuring an act of buggery contrary to section 69(3) of the Criminal Law Consolidation Act 1935. The particulars of that offence are that between 8 September 1973 and 31 December 1974 at Malvern the accused procured an act of buggery between the complainant and another person whom I will refer to as A.
The evidence of this incident is contained in the statement of the complainant dated 10 May 2004 (Exhibit P1). At the relevant time the accused lived in a house at Malvern. The complainant said that this was the only occasion on which the accused had anal intercourse with him in the presence of a witness. The statement described the house at Malvern and the bedroom of the accused. The description of the alleged offence is as follows:
Rick Marshall, [A] and I were lying on Rick Marshall’s bed as I have previously stated at the Wattle Street address in the evening on one occasion in 1974. Everyone was naked. If you are standing at the foot of the bed, [A] was on the right side of the bed, then me, then Rick Marshall. I can't remember they conversation except that Rick Marshall wanted us to all be having sex at the same time. The idea was me to have anal intercourse with [A] and for Rick Marshall to have anal intercourse with me all at the same time. We found this difficult to achieve and it took a number of attempts for us to achieve this. This was the first time that I have penetrated a male in this way and I have never done it since. I have felt guilty about this for years. I knew how I felt about someone doing this to me, and here was I doing it to someone else. I felt that I was no better than Rick Marshall even though [A] and I were only twelve (12) years old children. I don't wish to say anything else about this incident.
The incident was also discussed by the complainant in the interview on 19 September 2003.
In a statement dated 11 May 2004 the third person, A, corroborated the evidence of the complainant. He said that he was asked to stay over at the house of the accused for a weekend in 1973 or 1974. He could recall being in the bedroom of the accused and the three of them being naked. He did not know how they got undressed or where their clothes were. He remembered a conversation in which the accused said words to the effect that he wanted the complainant to have anal sex with him and then he wanted to do it with the complainant. A could not remember the words used but understood what the accused wanted. He thought the request was odd but participated willingly. He said he was lying on his left side on the right-hand side of the bed, that the complainant then put his penis into his anus and that he understood that the accused then put his penis into the anus of the complainant, although he could not see that from his position. A could not remember what was said afterwards or how it ended up. He could not remember any other actions except the sex act itself.
I reject the submission on behalf of the accused that the evidence of A has been contaminated by a discussion between the complainant and A in September 2003. An exchange of emails, which was admitted into evidence, does not provide any reason to suspect that the evidence of A has been contaminated or that there was any collaboration between the complainant and A or concoction of the story by A.
Counsel for the accused complained that A had fairly limited recall of what occurred. I do not agree. Nor do I think that his inability to recall some details provides a reason not to accept his evidence.
There is no reason why the evidence of A should not be accepted. His evidence corroborates the evidence of the complainant as to Counts 4 and 5.
As to Counts 4 and 5, I accept the evidence of the complainant and A. I find that the evidence establishes beyond reasonable doubt the objective elements of the offence of buggery in the case of Count 4 and the offence of procuring an act of buggery in the case of Count 5.
I record a finding that the objective elements of Counts 4 and 5 are established beyond reasonable doubt.
I declare the defendant to be liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935.
Count 6
Count 6 is a further count of buggery. The particulars allege that between 1 January 1974 and 2 October 1975 the accused committed buggery with the complainant, a person of the age of about 13 years.
In Exhibit P1 the complainant stated that between 1974 and 1975 he had anal intercourse with the accused once in the formal dining room at the home of the accused at Malvern. He said that the accused tied him to an oval dining table and had anal intercourse with him in a rough manner. He said that he found it very frightful and painful and that even to this day the incident disturbs him. There was no one else in the house at the time.
In a later statement which he signed on 14 August 2007 (Exhibit P5), the complainant referred again to the incident. He said it was something that the accused asked him to do and he went along with it, but he wished that he had not because it was aggressive and even to this day he does not like talking about it because it still upsets him. He described the incident as a forced sexual assault bordering on what he would now call rape. He said that the accused used a dressing gown cord plus other pieces of material to tie him up. He remembered being tied over the table but thought that the accused did not have enough cord and obtained some other material from close by to finish tying him up. His hands were tied to each other and they were then tied over the table. He remembered lying face down on the table with his legs spread, his arms out and over the table with his wrists tied together in front of him. He said that the accused was very aggressive. He said that after the accused had ejaculated inside of him the accused left him tied up for 10 or 15 minutes and then returned and penetrated him again, although he was not as aggressive on that occasion. He could not remember being untied and said he was bleeding badly from his anus which was very sore. He now finds it very hard to talk about the incident.
Counsel for the accused also attacked the complainant's credibility on the basis that the incident which the complainant described was very similar to the incident involving Brandenberg. In a statement dated 2 June 2004, with respect to the youth camp incident, the complainant said that Brandenberg held him back from a bush walk with the other boys and that while they were in a room alone Brandenberg tied him to a table with a scarf and anally raped him.
Counsel for the accused pointed to the fact that when first interviewed on 19 September 2003 the complainant said he was tied up with rope but he did not “know exactly what sort of rope” whereas in Exhibit P5 which is dated 14 August 2007 the complainant said “Ric Marshall used a dressing gown cord plus other pieces of material cord to tie my up”.
In Exhibit P1 the complainant referred to the dining room incident but did not refer to the topic of the rope or cord. It is significant that in the statement dated 14 August 2007 the complainant was able to give specific details of something of which he had no knowledge of in 2003. It is a reason to doubt his credibility as to the incident.
Further reason to question the credibility of the complainant on this topic arises from the fact that he claims to have been raped or treated aggressively by two separate persons in similar and unusual, if not bizarre, circumstances. The Brandenberg incident is alleged to have been committed in about January 1973 and Count 6 is alleged to have been committed between 1 January 1974 to October 1975. The Brandenberg incident was disclosed to the priest but the offence allegedly committed by the accused was not disclosed until 2003. In my opinion the delay in disclosing the incident and the striking similarity with the Brandenberg incident provides reason to doubt the evidence of the complainant about Count 6. The accused should be given the benefit of the doubt.
While corroborative evidence is not essential, the lack of it is a matter which I take into account. I do not regard my findings in connection with Counts 4 and 5 as corroboration of this offence because those findings are not probative of facts material to Count 6. BRS v The Queen[6]. In saying that I acknowledge that the prosecution has proved that the accused had demonstrated sexual affection by the accused towards the complainant.
[6] (1997) 191 CLR 275
As I have said the test is not whether the accused might have committed the offence, or even whether he probably did commit the offence. The prosecution has the onus of proving the offence beyond reasonable doubt. I have a doubt as to the veracity of the accused so far as Count 6 concerned. The accused must be given the benefit of the doubt.
As to Count 6, I am not satisfied beyond reasonable doubt that the elements of the offence of buggery have been established and I find the accused not guilty of the offence.
Count 7
Count 7 alleges a further count of buggery. The particulars are that between 1 January 1974 and 2 October 1975 at North Adelaide the accused committed buggery with the complainant, a person of the age of about 13 years.
At the time of the alleged offence the accused was employed as the presenter of a children's television programme by a television station at North Adelaide.
There is no evidence of the complainant having referred to the circumstances giving rise to Count 7 until 21 July 2005 when he made an oral statement to a police officer. The statement is recorded in a document signed by the complainant on 28 July 2005. The statement dated 28 July 2005 reads:
Originally when I gave my first statements I was asked to just talk about a few significant times that Ric Marshall sexually abused me but there were other times that this occurred that I feel I would like to talk about. Some of these have become more significant over the last 18 months or so as the memories come back to me.
I think in this instance it is because (the television channel) has been running specials on TV about 40 years history of the station and since my abuse at (the television channel) was 30 years ago then a lot of the events depicted in the specials bring back memories. A number of people that are in these specials were also around about the same time whether they were on different stations or not. Also (another television channel) has been doing similar things with this. It is hard but seeing this on TV at the moment had brought these unpleasant and upsetting events flooding back to me. People that were around at the time and were involved at (the television channel) knew what was being done to me. There were plenty of other times that I was sexually abused by Ric Marshall.
I remember one occasion I went with Ric Marshall to the (television channel) studios... I did visit there about 10-12 times, this would have been when I was 12 or 13 around 1974 over a 2 year period. I can vividly remember the layout of the furnishings within that room. I have drawn a sketch of the room as I remembered it and attached it to my statement.
On this occasion Ric Marshall was organising the schedule for his morning children's program. I think his office was upstairs in a large open area. We walked through the main entrance to the studio and there were photos of all the personalities from (the television channel) on the walls including that of Ric Marshall. His desk was upstairs in this office and again if I had to guess I would say it was on the southern wall facing west and was opposite the door as you walked in. The windows were to the right hand side of the door and probably would have been on the western side of the building possibly looking towards ..., this is how I remember it today. To the left of the door but to the right of his desk as you sat in the chair was this lock-up (sort of a vault) which contained all these toys which were the giveaways and prizes for the children's program. On this particular occasion when I went to the studio with Ric Marshall he commented that he was announcing the winner of a competition for naming something and he told me the winners answer. I told him that I could have come up with something better and told him exactly what I thought.
As I remember it he only had one or two people who sent entries in to try and win a prize, my guess would have been that his show was diminishing in popularity. He said to go in the toy vault and pick out a present/toy. I did just that and picked out a remote control plane - in kit form. He told me that I could have it and would announce me as the winner of the competition.
He just told me that I had to have sex with him in the vault. He made sure that the door was locked to the office and then came into the vault and made sure that the vault door was shut as well. He undid his pants and then pulled them down to his ankles. He made me pull down my pants and bend over inside the vault and then attempted to stick his penis into my anus. He struggled and then I heard him spit into his hand and then saw him rub this spit on to his penis. He then tried again and finally inserted his penis into me. It hurt like hell. He ejaculated into me then pulled out. I pulled up my pants and he told me where the toilets were. During this someone knocked on a door but left after a while.
The circumstances in which that allegation came to light are also described in the written statement dated 28 July 2005. The complainant says that he had telephoned the police a number of times in around 1989 and every time was told that the statute of limitations was in place. He wanted to pursue actions against each of Brandenberg, the priest and the accused but was told he “would have to go civil”.
In the statement dated 28 July 2005 the complainant said that a couple of years earlier he saw an advertisement on the television channel advertising a show they were going to run about the accused. He said he watched the program and that seeing the accused on the program made him upset and brought back memories. Shortly afterwards he typed a letter which he forwarded to the television station. The statement recorded that on Thursday, 21 July 2005 the complainant was shown a letter by a police officer dated 12 February 2003 addressed to the television station. The complainant agreed that the content of the handwritten letter was what he would have said in his letter but the handwriting was not his. He said the letter that he sent had been typed but that he was “99% sure” that the handwritten document was a true reflection of the contents of his typed letter and reflected how he felt and how angry and upset he was. While he did not recognise the handwriting he felt that the handwritten document set out what he had said. The complainant said that “at no time was there ever any intention of carrying out what the letter said”.
The contents of the letter are not in evidence and “what the letter said” or what might have been “carried out” is not known.
In another statement dated 7 March 2005, which is described as “Addendum 1”, the complainant referred to his frustration during the time that any prosecution was statute barred and said that he sent an anonymous letter to the police “along the lines of don't be surprised if a well known Adelaide paedophile ends up with a broom stick up his arse”. In the statement he also said “I think I also sent an anonymous letter to an Adelaide Current Affairs program outlining what had happened to me”. He tried to find copies of the letters but could not. As I have mentioned it was on 21 July 2005 the police officer showed him a handwritten copy of a letter to the television station.
For present purposes what is significant is that the allegation of the offending in Count 7 only came to light when the complainant was questioned about the letter which made some kind of threat to the television station. The incident in the toy vault and his attendance at the television station had not been referred to in the earlier statements of the complainant.
The existence of the toy chest in the office where the offending is alleged to have been committed has been established. Otherwise there is no corroboration of Count 7.
The overall delay, the failure of the complainant to raise the incident in his early statements and the general circumstances in which the television station was introduced into the complainant's evidence are all reasons to doubt the reliability of the complainant's evidence as to Count 7. There is an inference that the complainant only raised the offending by the accused at the television station to explain his own conduct in writing a threatening letter to the television station.
Again, the accused should the given the benefit of the doubt.
So far as Count 7 is concerned I have a reasonable doubt as to whether the objective elements of the offence of buggery have been established.
I find the accused not guilty of the offence.
Summary
In the case of Counts 4 and 5 the evidence of the complainant was corroborated by the evidence of A. For the reasons set out above I have doubts about the evidence of the complainant with respect to the other counts. The written statements and lack of oral evidence, in particular the absence of cross-examination, have left many questions unresolved. The verdicts are based on the documentary evidence.
As to Counts 4 and 5, I find that the objective elements of the offences of buggery and procuring an act of buggery are established beyond reasonable doubt. As required by section 269M-B, I record a finding that the objective elements of the offences are established beyond reasonable doubt and declare the defendant to be liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935.
As to each of Counts 1, 2, 3, 6 and 7, I find that the objective elements of the offences charged are not established beyond reasonable doubt and I find the accused not guilty of each of the offences.
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