R v Moar
[2010] SADC 122
•16 September 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOAR
Criminal Trial by Judge Alone
[2010] SADC 122
Reasons for the Verdict of His Honour Judge Soulio
16 September 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of persistent sexual exploitation of a child, and in the alternative with one count of gross indecency and two counts of buggery.
Criminal Law Consolidation Act 1935 ss 50, 68a, 69, 76, 269H; Juries Act 1927 s 7; Evidence Act 1929 s 34M; Criminal Law Consolidation Act Amendment Act No. 94 of 1972 ss 3, 4; Criminal Law Consolidation Act Amendment Act No. 98 of 1985 s 5; Criminal Law Consolidation Act Amendment Act No. 14 of 2003, referred to.
R v J, JA [2009] SASC 401; R v Seigneur (2009) 103 SASR 293; R v Dossi (1918) 13 Cr App 158; R v T (1985) 38 SASR; R v Pinder (1989) 155 LSJS; R v Jacobs R & R; Crampton v The Queen (2000) 206 CLR, considered.
R v MOAR
[2010] SADC 122Background
Q was a student at a secondary school in the northern suburbs of Adelaide. The accused was a school counsellor at that school. Q alleges that in 1974, when he was 14 years old, he was sexually abused by the accused. The accused denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927.
The Charges
The accused is charged with persistent sexual exploitation of a child (s 50(1) of the Criminal Law Consolidation Act, 1935).[1]
[1] Although s 50(1) came into operation on 23 November 2008 by s 50(6) of the Criminal Law Consolidation Act 1935, the section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of the section.
The particulars alleged are that:
First Count
The accused between the 1st day of August 1974 and the 1st day of December 1974 at Para Vista, over a period of not less than three days, committed more than one act of sexual exploitation of Q, a person under the age of 17 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
(a)Committing an act of gross indecency with Q by causing Q to masturbate in the accused’s presence.
(b) (Not proceeded with).
(c) Indecently assaulting Q by performing an act of fellatio on Q.
(d) Committing acts of buggery with Q.
The Information alleged the following counts in the alternative:
Second Count
Gross Indecency. (s 69(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
The accused between the 1st day of August 1974 and the 1st day of December 1974 at Para Vista, committed an act of gross indecency with Q by causing Q to masturbate in the accused’s presence.
Third Count
(not proceeded with)
Fourth Count
Buggery. (s 69(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
The accused between the 1st day of August 1974 and the 1st day of December 1974 at Para Vista, in the library at the Para Vista High School, committed an act of buggery with Q.
Fifth Count
Buggery. (Ibid).
Particulars of Offence
The accused between the 1st day of August 1974 and the 1st day of December 1974 at Para Vista, in the counsellor’s office at the Para Vista High School, committed an act of buggery with Q.
Application to Vacate Trial
Counsel for the accused made application to vacate the trial date on the basis of the medical condition of the accused, and said that if that application was unsuccessful he would apply for a stay based on the same material.
I received reports from Mr Reid, an experienced neuropsychologist, Ms Mykyta, a consultant geriatrician, and a letter from the site manager (a registered nurse) at the nursing home in which the accused resides, in support of the application.
At trial the accused was 72 years of age. He suffers from diabetes. He also suffers from Parkinson’s disease which makes it difficult, if not impossible, for him to assess his blood sugar levels and administer treatment reliably and accurately. He suffers depression and sleep apnoea with resulting fatigue. He is unable to walk for any distance, suffers back pain, and suffers urinary frequency, urgency and urge incontinence.
Mr Reid saw the accused in September 2009, and said the accused was not mentally unfit to stand trial within the terms of s 269H(a)(b) and (c) of the Criminal Law Consolidation Act 1935 (‘CLCA’), which provides that:
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
Mr Reid did however express concern about the ability of the accused to sustain concentration at the appropriate level and suggested that allowances be made for the accused in relation to the issues of fatigue and stress to accommodate limitations with regard to concentration.
Upon reassessment in June 2010 Mr Reid said:
If I accept the difficulties with fatigue and concentration as subjectively described by Mr Moar, then I believe it is probable that he would not meet the requirements for fitness to stand trial, but as indicated above I believe a more specialized medical comment with regard to his various medical diagnoses needs to supplement this opinion.
Thereafter Dr Mykyta assessed the accused. She said that the accused would need a blood sugar level reading and possibly an insulin injection following the travel to and from the nursing home to court. She said that allowances would have to be made for the accused due to his urinary incontinence and that he would need attention to diabetes management at intervals of less than two hours. She said the diabetes management would require that he be accompanied by a registered nurse. She formed the impression there was no significant cognitive impairment and that the accused was articulate and well informed and capable of providing instructions. She expressed doubts about his ability to maintain his alertness and concentration during the course of a trial and whilst she noted that he could stay alert and focused during a 90 minute consultation she questioned whether he could do so consistently and repeatedly in court. She did make the comment that “at times, his appearance is not congruous with the severity of the symptoms that he describes …”
I refused the application to vacate the trial date and, given that the foreshadowed stay was based on the same material, counsel for the accused indicated that he would not pursue the application for a stay. There was no application asserting that the accused was not fit to stand trial.
Arrangements were made for a nurse to be present at court to accompany the accused and the trial proceeded, sitting each morning, every second day without causing apparent difficulty.
Preliminary Matters
It is necessary to give consideration to the elements of the offence and to the onus of proof. It is necessary to consider the warning which is required given the delay in bringing attention to the matters the subject of the present trial; and the use to be made of the original “complaint” by Q.
Directions
The accused is presumed to be innocent unless and until his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the defence. I must be satisfied before I could convict the accused of any count on the Information that the prosecution has proved beyond reasonable doubt each element of the charge.
It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
I remind myself, in considering any charge, that it is not simply a question of preferring one version of events over another, but rather determining whether or not the Crown has proved each of the elements of the offence to the requisite degree.
Section 34M Evidence Act 1929
The principal offence is alleged to have occurred some 36 years ago. The first time the matter was raised by the complainant was in 1996.
The Information upon which the accused was charged was first laid in this Court on 17 August 2009. Accordingly the provisions of s 34M of the Evidence Act apply[2] and evidence of the initial complaint was led from Q in accordance with that section.
[2] R v Seigneur (2009) 103 SASR 2007.
Section 34M provides that:
In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
Evidence of the initial complaint is only admitted to inform me as to the way in which the allegations first came to light, and potentially as evidence of the consistency of the conduct of Q and the reliability of his evidence.[3] It is not admitted as evidence of the truth of what the complainant alleged.
Delay in Complaint
[3] R v J, JA [2009] SASC 401 per Duggan J at [93].
As has been observed in a number of previous decisions, there may be good reason to explain the delay in the making of a complaint. However the lapse of time is such that there is a risk that the accused has suffered a forensic disadvantage. Because of the delay, there is the potential that the accused has been deprived of the opportunity to adequately test the allegations. In particular, he may not be as well placed to call evidence, if he chose to do so, to counter the allegations, as he would have been closer to the time the offences are said to have happened. In those circumstances and as the case against the accused consists of Q’s unsupported evidence, I should scrutinize his evidence with great care. For the same reason, I must also exercise a similar caution when considering any evidence of other acts comprising the ongoing acts of sexual exploitation, and be aware that I must closely scrutinise the complainant’s evidence before I could be satisfied of its truth and accuracy.
I must approach each charge, and in relation to Count 1, each particularised act of sexual exploitation, on the basis that I should give close scrutiny to the complainant’s evidence.
I bear in mind that in a case, as here, involving lengthy delay, the defence will frequently consist of outright denials, because the passage of time denies the necessary forensic weapons that contemporaneity provides.[4]
[4] Crampton v The Queen (2000) 206 CLR 161 at [45].
Although a range of dates in relation to each offence is alleged in the Information, the exact date is not an essential ingredient of any of the particularised acts or charged offences. The act or occasion alleged must be identified and I must be satisfied the specific act charged is proven beyond reasonable doubt.[5]
The Elements of the Offences
[5] R v Dossi (1918) 13 Cr App R 158 at 159–60.
Count 1 - Persistent Sexual Exploitation of a Child
Section 50(1) of the CLCA provides:
An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
The elements of the offence are:
1.That the accused was an adult.
2.That the complainant was under the “prescribed age”. If the accused is in a “position of authority” that age is 18 years. In any other case that age is 17 years.
“Position of authority” is defined in the Act.[6]
3.The accused must commit more than one act of sexual exploitation of the complainant over a period of not less than three days.
An “act of sexual exploitation” is one where, if the act was properly particularised, it could be the subject of a “sexual offence”.
A “sexual offence” is defined as:
(a) an offence against Division II (other than ss 59 and 61) or s 63B, 66, 69 and 72; or
(b) an attempt to commit, or assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a previous enactment.
[6] Criminal Law Consolidation Act 1935 s 50(8).
Elements one and two are not in dispute. The accused was an adult at the relevant time. It was not necessary for the purposes of the trial to consider whether the accused was in a position of authority as there was no dispute at the time of the alleged acts the complainant was aged 14 years.
The issue to be determined is whether the Director of Public Prosecutions (‘DPP’) has proved beyond reasonable doubt that more than one act of sexual exploitation took place over a period of not less than three days, as alleged by the complainant.
As I have said, the DPP alleged that the accused committed ongoing acts of sexual exploitation including:
1. Gross indecency
2. Indecent assault
3. Two acts of buggery
Each of these offences is “an offence against Division II or a substantially similar offence against a previous enactment,” within the meaning of s 50(7) of the CLCA.
The Applicable Historical Legislation
The offences alleged to constitute Count 1 (and Counts 2, 4 and 5 in the alternative to Count 1), are alleged to be breaches of s 69 of the CLCA.[7]
[7] As the Act stood in 1974.
By s 3 of the Criminal Law Consolidation Act Amendment Act No. 94 of 1972, the following offences of relevance to the counts charged on the Information, were inserted into the CLCA:
Section 69 - Unnatural offences
(a)any person who commits buggery, either with a human being or an animal, shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding ten years:
(b)any person who-
(i) attempts to commit buggery either with a human being or an animal;
(ii) assaults any person with attempt to commit buggery;
or
(iii) indecently assaults any male person,
shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years;
and
(c)any male person who commits an act of gross indecency with another male person shall be guilty of an offence and liable to be imprisoned for a term not exceeding three years.[8]
[8] Inserted by s 4 Criminal Law Consolidation Act Amendment Act 1972 No. 94 of 1972.
Section 69 remained in operation in this form until 2 October 1975.
Between 9 November 1972 and 1 October 1975, s 68a of the CLCA provided:
68a(1) Where a male person is charged with an offence that consists in the commission of a homosexual act, it shall be a defence for that person to prove that the homosexual act was committed with another male person, in private, and that both he and the other male person consented to the act and had attained the age of twenty-one years.
(2) A homosexual act shall not be held to have been done in private if it is done–
(a)when more than two persons take part in or are present at the commission of the act;
or
(b)in any lavatory to which the public have or are permitted to have access, whether free of charge or otherwise.
(3) A homosexual act includes–
(a)an act of buggery between two male persons;
or
(b)an act of gross indecency between two male persons.
Section 68a thereby provided a defence if the person charged with an offence pursuant to s 69 could prove that the act was consensual, in private, and that both parties had attained the age of 21 years. That defence is not relevant to the present charges.
Previously s 76A of the CLCA applied to such offences and provided:
(1)No information shall be laid for an offence to which this section applies more than three years after the commission of the offence.
Section 76A precluded prosecutions commenced more than three years after the alleged offences.[9] That section was repealed by s 5 of the Criminal Law Consolidation Act Amendment Act No. 98 of 1985 effective from 1 December 1985. The repeal applied retrospectively, but was incapable of reviving prosecutions after the three year limit elapsed.[10]
[9] R v T (1985) 38 SASR 428.
[10] R v Pinder (1989) 155 LSJS 65.
However, the Criminal Law Consolidation Act Amendment Act No. 14 of 2003, operative from 17 June 2003, provided:
Division 14—Procedure in sexual offences
72A—Former time limit abolished
Any immunity from prosecution arising because of the time limit imposed by the former section 76A1 is abolished.
Note—
1Repealed by section 5 of the Criminal Law Consolidation Act Amendment Act 1985.
1. Gross Indecency – Particular (a) of Count 1 (Count 2 in the alternative)
The accused is charged with committing an act of gross indecency. It is necessary for the prosecution to prove beyond reasonable doubt that the accused committed the act alleged, namely causing Q to masturbate, as the first element. The second element which must be proved is that the act was done with or in the presence of Q. The third element is that the act must have been indecent. I bear in mind that indecency connotes some form of sexual conduct or activity which is to be regarded as indecent having regard to the age of Q and the nature and circumstances of the conduct or activity and to contemporary standards of morality and decency. The fourth element which must be established is that the indecency must be gross, that is, something more than minor or trivial indecency, so that it can be characterised not only as indecent but as grossly indecent.
The defence did not dispute that if the act alleged by Q was committed it constituted an act of gross indecency.
2. Indecent Assault – Particular (c) of Count 1.
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove each of four elements beyond reasonable doubt. The first element which must be proven is that there was an application of force or violence to another person. Any touching or handling is sufficient. There need not be any great application of force. Here the act is alleged to be the accused performing fellatio on Q. The second element requires that the application of force must be intentional rather than accidental touching. The third element is that the application of force must be without lawful justification or excuse. The fourth element of this count is that the assault must be accompanied by, or occur in circumstances of, indecency. I bear in mind that opinions may differ as to what is or is not indecent, but there are types of conduct which by any reasonable standard can only be described as indecent. Given the undisputed age of the complainant consent is not an issue.
Again the defence did not dispute that if the act alleged by Q was committed it constituted an act of indecent assault.
3. Buggery – Particular (d) of Count 1 (Counts 4 and 5 in the alternative)
The offence consists in penetration per anum.[11] The complainant alleges that on two particularised (and charged) occasions the accused engaged in anal intercourse with the complainant. Any degree of penetration is sufficient and penetration for even a slight period of time is sufficient. Again, given the undisputed age of the complainant consent is not an issue.
[11] R v Jacobs R & R 331 referred to in Archbold Pleading Evidence Practice in Criminal Cases. 37th Edition at [2974].
The defence did not dispute that if the acts alleged by Q were committed they constituted acts of buggery.
Witnesses
The Crown case comprised the evidence of Q together with certain agreed facts. The accused gave evidence in his own defence and was the only defence witness. Facts were agreed in relation to the complainant’s sister, CR. The accused denied that the offending took place. The Crown led certain agreed facts in rebuttal.
The Prosecution Evidence
At the time of giving evidence the complainant was 50 years of age, having been born in England on 20 February 1960. During the time particularised in the Information he was therefore 14 years old. He came to Australia with his parents in 1969. He has a younger sister and an older half sister, CR, who had migrated to South Australia two years earlier.
He said that in 1974 he was in year eight at school. Following the death of his father, on 15 August 1974,[12] the complainant’s mother and younger sister returned to the United Kingdom, and he moved in to live with CR.
[12] Death certificate Exhibit P2.
During that time he described himself as an unruly child, being behaviourally difficult and uncooperative with CR. He said that within a few weeks of being in the care of CR he was taken by her to see the accused, a school counsellor, as he understood it to ascertain the cause of his unruly and difficult behaviour.
The Complainant
The prosecution made application pursuant to s 34L of the Evidence Act to question the complainant regarding his previous sexual activities. Such evidence was said to be relevant as, on the prosecution case, the complainant had been the victim of a number of sexual offences at the hands of other men prior to his first meeting with the accused; had told the accused that; and was in those circumstances subjected to sexual abuse by the accused. I was satisfied that the evidence was of substantial probative value and that its admission was required in the interests of justice and therefore granted permission to ask questions on that topic.
The complainant said that prior to meeting the accused, he had been sexually abused by a group of four people over a period of two to three years. That abuse was continuing up until the time the complainant’s father died but once he was put in the care of CR, contact with those people stopped. He named two of the people who had subjected him to such abuse as Philip Cave and Ric Marshall.
The complainant was asked about his attitude towards the sexual abuse and said “I at that stage didn’t really believe anything was overly wrong with what was happening. I guess I had been fairly well groomed into that ongoing abuse and I honestly don’t believe I knew any better about it.” That abuse involved kissing, masturbation, oral sex and anal sex.
The complainant’s evidence about being sexually abused prior to meeting with the accused was not challenged by defence counsel, and I accept the complainant’s evidence in that regard.
He said in evidence-in-chief, that he met with the counsellor on up to six occasions, there being one session per week for a period of about six weeks. The meetings occurred on school days and took place out of school hours. The sessions were about 1½ hours in duration with the exception of the last session which only lasted a short time.
The First Counselling Session
The complainant described the first occasion he met with the accused. He said he was taken there by CR and her husband and introduced to the accused and was then left in his care for the counselling session. That first meeting took place no more than four to six weeks after the death of his father. He said that the first meeting was after school hours at about 5.30-6.00pm, but in any event out of general school hours, and took place in what he understood to be the school counsellor’s office in the administration building.
He said that at the first session the counsellor discussed matters relating to his behaviour and raised the fact that the complainant had inappropriately touched a woman on the breast. A complaint had apparently been made to CR about that, and the complainant said in evidence that he had assumed the accused had been told about that aspect of his behaviour.
At some point he told the accused that he, the complainant, had been sexually abused over a period of time and made what he described as “a pretty frank disclosure of what had happened to me in the last few years”.
The complainant first mentioned the topic of abuse, he said, as “the counsellor had got my confidence and I was under the impression that he would then be able to help me with a certain number of aspects that were going on in my life with the abuse, etc, and things like that”.
He said that he felt uncomfortable about raising the topic at first, just as he did in court, “but once the floodgate was open, so to speak, it just seemed to become quite a bit easier to get it out.”
The complainant gave evidence in general terms that he told the accused that the previous abuse involved masturbation and anal sex. He said that the accused seemed genuinely interested in what was going on and said words to the effect that he, the accused, wanted to understand what it was all about or wanted to try to understand the situation. That was the first occasion on which the complainant had told anyone about the abuse to which he had been subjected. The complainant said that the accused had, through the counselling session, gained his confidence and the complainant felt that the accused was a person he could trust.
The First Act of Masturbation
The complainant was asked whether anything else happened during the course of the first counselling session and said “I can’t be honestly clear if anything happened. I believe I may have masturbated for him but within the time frame and the context of it, it may have been possibly the second period, so I can’t be truthful in my response to that.”
He said however there was an occasion on which he first masturbated in front of the accused. He said that the act of masturbation occurred “in an effort for Mr Moar to understand what I was trying to explain to him, I suppose, by showing him. It seems ridiculous now to sort of say something like that but that was my understanding, to give him a better understanding of where, how things happened or whatever, along those lines.” The complainant could not recall the words that led to him masturbating in the presence of the accused.
He was asked:
QWhy was it then that you masturbated in his presence?
ABasically through his encouragement to give him an understanding of what things I was feeling or how he could best understand what had happened to me.
He said that the first act of masturbation occurred in the accused’s office, or wherever the counselling was happening, and that the accused was sitting behind his desk.
Other Acts of Gross Indecency
The complainant said there was more than one occasion that he masturbated in the accused’s presence, and recalled three separate occasions.
The complainant said that he returned about one week later. He attended by himself at about 5.30 or 6.00pm. The issue of previous sexual activities was again raised. At some point either the accused or the complainant suggested that they go to the library. His recollection was that the accused wanted to understand the detail of the sexual activities the complainant had been subjected to.
The First Charged Act of Buggery
The complainant said that within the first half hour of the second session they moved to the library. He said that the accused had keys and as he recalled it the library was locked. He saw no one else in the library. He said “we moved to the back of the library. Mr Moar basically commenced to abuse me in a sexual way. I recall being basically on my hands and knees and feeling very uncomfortable in the position that I was in. He basically – I recall having my trousers or pants down around my ankles. He had an erection and then he commenced to sodomise me.”
He was asked how long that went on for and said “I don’t know exactly the time frame, a short period of time. I complained about being very uncomfortable in the position that I was in, so he moved me over on to my side and continued on.”
He said that the accused ejaculated in the complainant’s anus. He said that he “recalled feeling very uncomfortable about the whole situation, no real position to be able to clean myself and finding a toilet basically to clean myself up”. He said that he did not protest and said that at that stage abuse on his person was so common that there really didn’t seem to be any point.
The Indecent Assault
The complainant said that the accused had oral sex with him on at least one occasion. That followed the accused asking the complainant what things he liked, and the complainant telling the accused that he enjoyed oral sex. He said that topic of what activity he liked was raised in the context of a discussion about the previous sexual activity and the complainant told the accused that the complainant enjoyed receiving oral sex. He could not be sure whether that occurred in the office or the library. He said that he had ejaculated in the accused’s mouth, but could not say whether that occurred on only the one occasion, or on more than one occasion.
Other Acts of Buggery
The complainant said that after the second session he recalled seeing the accused on another three occasions and that on each occasion the accused sexually abused him by having anal intercourse. He said that the other episodes of anal sex always occurred in the library building in the context of the counselling sessions he was having with the accused.
The complainant was asked “do you have an actual memory of the third counselling you had or the session after the first act of anal sex in the library”, and said “it is a bit of a blur in trying to simulate (sic) between what happened first and second and so forth. But I don’t have any firm recollection of the other sessions per se.”
The Second Charged Act of Buggery
The complainant said that the last occasion he “firmly recalled was in his office; exactly the situation or the position I was in I don’t recollect but that was then pretty much the very last time that I saw Mr Moar as well.”
After the Last Session
The complainant said that at the end of the last session the accused made mention of recommending that the complainant should return to live with his mother in the United Kingdom.
The complainant said that about that time he was starting to “wise up to what was going on” and whilst in some ways he did not wish to return to the United Kingdom it was a way of removing himself from the situation of abuse both by the accused and by other people.
He said in explanation that what he meant by wising up was that “believing that what was happening wasn’t correct but not necessarily knowing how to go about fixing the situation, because here is a man who is supposed to be there to help me out of my situation and then just exacerbating the whole situation. I don’t know if I can expand on that, but it was something that up until quite some – not so long ago I wasn’t able to face any form of counselling in any way, shape, or form …”
The complainant said that throughout the course of the contact he had with the accused he was not still having contact with the other men. That contact had ceased when he moved in with CR who had severely curtailed his activities, including contact with those adult men.
The complainant said that he returned to England within two to four weeks of the last session, and that that was in November 1974.
Evidence re Complaint
The complainant said that he did not tell anyone else about what was going on with the accused, and when asked why said “I can’t be specific about why, it would be normal to think that you should, but I believe from my own self that because I had gone along the lines of the previous abuse that had happened, it was a fairly normal thing to occur.”
The person he told about sexual abuse generally, was a friend in Brisbane in 1996 at a time when the complainant, then in the defence forces, had been posted to Brisbane. He said he did not go into any specific details. I regard his explanation for the delay and as to how the disclosure came about as being understandable. He said he first spoke to police in Victoria in 1997. In cross-examination he said he spoke to police in Victoria about four years after first telling his friend in Brisbane and then spoke to South Australian police in 2005. Ultimately I do not regard the evidence relating to complaint as being of particular significance in the circumstances of this case. Such evidence and the responses in cross-examination do not affect my view of the consistency of the complainant’s conduct nor the reliability of his evidence
Cross-examination of the Complainant
In cross-examination the complainant was asked to identify the men with whom he had engaged in sexual activities and said that they were Philip Cave, Ric Marshall, and two other men, L and H. They were all associated with either the theatre or Channel 7 or both. The complainant conceded that he found that association with those men exciting and enjoyed it. He conceded that the access provided to theatre and television gave him some form of prestige. He agreed that because of the way he had been groomed, the sexual behaviour seemed normal. He conceded that part of the reason he did not wish to return to England was because of the lifestyle he was having with such older men.
He agreed that it was not his idea to see the school counsellor and that it was CR and her husband who told him he was to see the school counsellor in relation to his behaviour. He was asked whether he “understood that the counsellor had divulged to CR and her husband some of what had happened between you and those men” and said that the only thing he was told was “that the vice squad were interested in me and that it had been recommended that I leave Australia as quickly as possible”. He agreed that he did not want to go. It was put to him that he resented the advice the counsellor had given to CR and her husband. He said “I suppose I agreed that it would be the best thing with the underlying fear that the police were interested in my behaviour” and agreed that he did not want to go. I note in passing that in his evidence, the accused said that it was a surprise to him that the complainant even had a sister.
The complainant agreed in cross-examination that CR had told him the vice squad was interested in his behaviour, and that CR and her husband had put him on a curfew. He agreed that on one occasion he had breached that curfew to visit Marshall to tell him that CR and her husband were sending him to see a counsellor. He agreed that Marshall had had anal sexual intercourse with him on that occasion.
It was put to the complainant that what CR and her husband had said was to the effect that “we have learned from the counsellor – you are not to see these blokes anymore, you are not to go to Channel 7, you are on a curfew, you are going home to England as soon as possible.” The complainant said “no, that’s not correct, the curfew was imposed prior to seeing the counsellor and an involvement with those other men was imposed prior to seeing the counsellor as well.”
It was again put to the complainant that he resented the counsellor for playing a part in having him sent away to England and said “no, I disagree. Partly perhaps there would be a certain amount of resentment. I don’t think I had any real feelings about the situation at all.”
Counsel for the defence put to the complainant “is not the reality that this man, Mr Moar, in fact did not sexually interfere with you, did not anally have sex with you.” The complainant said “no, that’s totally incorrect”. Similar questions were put in the negative, which were each rejected.
It was put to the complainant that he had made a prior inconsistent statement to police in December 2005 in that he told police about the counselling session with the accused but did not suggest there was any sexual contact at that first session.
He agreed that thinking back, there was to the best of his knowledge no sexual contact between him and the accused in the first session. He said “no, I can’t be completely sure as to when the abuse with the counsellor took place, whether it was in the first session or second session and, with the time frame we are talking about, I can’t really put a finger on the time.”
He agreed that he had told police that sexual contact took place in the second session and that it was at that session that the accused caused the complainant to masturbate – that is the first occasion upon which that had happened.
He also agreed that when he first spoke to police in South Australia he told the police officer that the sexual abuse at the hands of the accused probably occurred no more than three or four times. He was asked whether, when talking about the term “sexual abuse”, he was talking about sexual acts generally or limiting it to anal intercourse, and said that by that term he meant anal intercourse. He agreed that the reference to three or four occasions of sexual abuse referred to three or four acts of anal intercourse. He agreed that he told police initially that an act of anal intercourse took place on the first occasion and took place in the school library after school hours. He agreed that that description of being subjected to anal intercourse on the first occasion, was incorrect.
He was asked:
QCan we rely on your memory now that it took place in the second and third session?
AThat is a very good question. Yes I believe you can.
QCan we rely on your memory that it happened at all?
AWe certainly can, that’s why we are here.
He said his memory of the situation was a little disjointed, particularly as to whether the first act of anal intercourse occurred during the second, third or fourth occasion but said “the fact is that it did occur”.
He agreed that he told police in December 2005 that it was at his suggestion that he and the accused went into the library.
He agreed that when he spoke to police in September 2004 he said that there were three or four sessions with the counsellor. In December 2005 he said that there were four or five sessions, and in evidence that there were no more than six occasions where he had counselling from the accused.
In re-examination he was asked as to the number of occasions upon which anal intercourse had occurred, and said that there were no more than three or four occasions, and that anal intercourse occurred no more than once during any session.
Counsel for the accused made application to recall the complainant to put to him that at some point before the counselling sessions with the accused commenced, CR had caught him in bed with a man. The complainant denied that.
Defence Evidence
The Accused
The accused, as I have said, was 72 years old at the time of trial. He was born on 31 August 1937. At the time the offences are alleged to have occurred he was 37 years old. He married at some stage, although there is no evidence as to whether he was married in 1974. He currently suffers from a number of health problems to which I have referred. It was an agreed fact that the accused’s medication can contribute to problems with memory.
The accused agreed, in evidence-in-chief, that he saw the complainant at the school when he, the accused, was working as a school counsellor. He said that his memory tells him that he saw the complainant twice, as well as earlier, when the complainant’s friends came to see the accused to ask him to see the complainant. He has no memory of seeing the complainant as a result of the efforts of CR.
He denied ever anally penetrating the complainant, having him masturbate, or having any discussion about oral sex between the two of them. He denied having given or received oral sex from the complainant.
The accused said that during the first session with the complainant, the complainant quickly became angry because of the accused’s line of questioning and asked what right the accused had to question the complainant or investigate his lifestyle.
He said during the first session he questioned the complainant about being found in bed with a man, by CR, because that was the reason that the complainant’s school friends came to the accused asking him to counsel the complainant.
The accused said that the complainant asked did you know the name “Rick Marshall” and the accused said that he answered “yes I did” and offered the explanation that he knew Marshall was in the Cottage Theatre, and that as a school teacher the accused was often concerned with drama. He said that the complainant told him that he had done far worse things with Marshall.
The accused said that he had said to the complainant during the first counselling session “you know that he has been in a lot of trouble” and the complainant responded saying “yes, I am what you call a pimp for him”. The accused said that he could not remember all of the conversation except that he remembered the complainant saying “it is pretty good the way we work it out (that is the complainant and Marshall) and went on to say “I remember one occasion where I had taken a mate along to be introduced to a friend of Ric’s and one of them said to him “what are your goods like” or something like that, and he said “the left eyeball is ok but the right eyeball’s not”.
He said that he had little recollection about what else was talked about, but said it was probably just the nature of the act, and the fact of the diseases he would contract, because it was around about then that the AIDS syndrome was “commencing to be a profound business.”
The accused denied having any conversation with CR or her husband about that issue, and said “no, that was rather a surprise to me. In fact, I didn’t even know he had a half sister who was married. I have no recollection whatsoever of that coming into our conversations”.
He said that there was a gap of about a week before he saw the complainant again.
In cross-examination the accused was asked what discussions he had had with the complainant when the complainant, then aged 14, told him about sexual activities with Ric Marshall. He said that he thought from memory that he had said to the complainant “you realise that it is not a generally accepted action to take”. He said from what he knew about Marshall, Q could get himself involved in trouble, and that he had said to the complainant “do you want to do that”. He said that he mentioned to the complainant “there are diseases like AIDS and things like that you can get.” He said the complainant just brushed that off and it was no concern of his.
The accused was asked about the complainant’s general presentation and demeanour during the first session and said “calm, but tended to be aggressively calm, I could feel almost the heat, I would say, coming from it.”
He reiterated that two school friends of Q came to see the accused and said something like “we have got a friend of ours who is in pretty bad trouble can you help him out”. He said that prior to that time he did not know Q existed. He said that the three of them turned up together and the two other boys left Q with the accused. He said that in discussions with the complainant he said of the two other boys, “you realise how worried they are about you” and said that the complainant replied “it is none of their business anyway”.
He said that the first counselling session didn’t last more than ten or 15 minutes.
He was asked about his training as a school counsellor and said that he had attended the Institute of Technology and undertaken the courses Counselling 1 and Counselling 2. He said that there was no mandatory reporting obligation at the time these events are alleged to have occurred and said that it was discussed in subsequent counsellor get-togethers, and as a result of those discussions, in part, mandatory reporting was brought into place. He said that his training was to be extremely careful about what was used from discussions with students, and that their confidentiality had to be respected.
He was asked whether, after being told about the complainant’s sexual activities with Marshall, he did anything to contact the complainant’s parents or guardians. He said that he did not because the complainant did not want him to. He was asked what the complainant had said about that and said that he had said to the complainant “can I let your mother know about this” and the complainant replied “no no nothing to do with her”. I note that at the time the complainant’s mother was in the United Kingdom. The accused said that he had no recollection of any contact with CR. I also note that given the agreed fact led by the accused, there must have been some contact between the accused and CR.
However I prefer the evidence of the complainant that CR had placed a curfew upon him before the sessions with the accused occurred. In doing so I bear in mind the agreed fact as to what CR would have said in evidence.
Counsel for the prosecution asked the accused whether the complainant had indicated that he was intending to continue to see Ric Marshall. The accused replied “he didn’t indicate in so many words but I gained the impression from body language that he didn’t see anything wrong with it so why should he stop.”
The accused said that at the end of the first session he had said to the complainant “I would like to see you again” and received the reply “what for” and responded “to talk to you just a little bit more” and received the response “I don’t really see any point in it but I’ll come” and a date and time was set. He said that it was one week later. He said that the first session occurred in the morning period during the school week. He denied having any memory of seeing Q after school hours. He said that he usually saw students during school time but occasionally saw a student after hours. He said that the last time he saw Q was after school but between 3.30 and 4.00pm.
He said that there was no further discussion about what was happening with Ric Marshall on the second occasion. He said that the complainant was stand-offish and did not want to be there and that the session was quickly brought to an end.
He said that the second session was no more than five minutes in length because the complainant intimated that he did not want to continue with counselling.
He said that his best recollection was that there were only two occasions on which he had seen Q.
He said that his office was moved on three occasions during the time of his employment at the high school in question. Initially his office was within the library building, but after about two weeks moved to the administration block and that later he moved to a room outside of the library which was set up as a type of classroom with his desk in one corner. He said that there was a standard rule for counsellors that you always had a barrier between you and the student, and said in evidence that he always made sure that he had a desk between him and whoever he was interviewing.
He said that when he first had contact with Q his office was in the administration building. When his office was moved and located in the room next to the library, he had access to the library.
He said that in September and October of 1974 he couldn’t give an accurate answer to where is office was but it would have been either in the administration building or moving from the administration building to the far side of the library complex in rooms there. He said there was a doorway into the library but his room was not regarded as part of the library. He said he had a key to the outside access door to his room so that it was not necessary to go into the library to get into his room. He said he was able to access the library from his room, there was no need for keys, it was just a manual lock which could be opened from his side.
The accused denied that he had made any attempts to understand the nature of the sexual activities in which the complainant had been involved and said only that he had pointed out to him the harm that there was and the moral impact, but said that the complainant brushed him off all the time and would just look away and wouldn’t listen to what was being said. He did not recall speaking to Q about relocating to the United Kingdom. He denied ever mentioning the vice squad to him.
He was asked whether he had any physical contact with the complainant during the sessions and said “with the desk between us, I couldn’t, no” and said that he remained at all times behind the desk.
The accused was asked “what did you mean when you told Q that his actions could get him led into contact with the police” and he said “well, at that particular stage Ric Marshall had been investigated and reported a number of times for interfering with boys and I meant that if he was going to be dragged into it he could be dragged into evidence or to be asked questions and have to have contact with police at the time”. He was asked how he had been made aware that Ric Marshall had been investigated by police in 1974 and said that he had read that in the newspapers and heard about it, mainly because he knew where the Cottage Theatre was. He said he knew where the Cottage Theatre was because it was just up the road from the Diabetic Association so he had to go past it. He said he wondered what they meant by Cottage Theatre and spoke to one of the women in the school who was an actress and theatre director and asked her “what is the Cottage Theatre” and she said “it’s a bit of a divey place”.
He said that he never met Ric Marshall or had anything to do with him, it was just a name that cropped up now and again as someone who was in trouble with police for sexual interference.
In further cross-examination by counsel for the prosecution the accused confirmed that he knew where the Cottage Theatre was, in part, due to him attending the Diabetes Association which was nearby. He said that he was first diagnosed with diabetes in 1968 or 1969. He was then asked:
QIt wasn’t when you were aged 40, which would have been in 1977?
and said,
ANow you come to mention that, it sounds familiar.
QIf that was the case you wouldn’t have been going to the diabetes place when you were having the contact with Q.
AThat’s correct because I’d have no reason to be.
He was asked in which newspaper he had read about Ric Marshall being investigated and reported for interfering with boys. He said it was the Advertiser.
In further cross-examination regarding a discussion on AIDS the accused said that in retrospect he may not have used the word AIDS, but may have been referring in general to all types of sexually transmitted diseases and that he may have referred to AIDS because in subsequent years as a counsellor he did so. He was asked whether he had a specific recollection of discussing AIDS with the complainant and said that he did not.
The defence led as an agreed fact that: CR would have said in evidence, that the curfew imposed on the complainant was imposed following, and as a result of, communication received from the accused as school counsellor.
Rebuttal Case
The prosecution led the following agreed facts in rebuttal without opposition:
1.The first article published in the Advertiser disclosing sexual abuse allegations against Ric Marshall was on 15 November 2005. Earlier articles concerning Marshall related to his work in the theatre.
2.The earliest electronic police record of a complaint of sexual abuse allegations concerning Marshall was made in 2003. Police records prior to 1991 had not been reviewed.
3.AIDS was first recognised by the United States Centre for Diseases Control and Prevention in 1981, and its cause, HIV, was identified in the early 1980’s.
Submissions
Counsel for the prosecution submitted that the evidence of Q provided a compelling foundation for finding that Count 1 had been proved beyond reasonable doubt.
I agree with the submission made by counsel for the prosecution that the complainant gave his evidence in a manner devoid of the indications of fabrication or invention. It was put to the complainant, by counsel for the defence, that he had displaced memories of sexual abuse by others upon the accused. The complainant denied that. I reject that as a possibility. The present allegations relate to acts committed in an entirely different context, and are described in considerable detail.
The complainant made appropriate concessions. There were gaps in his memory and some difficulties with the chronology of events which are to be expected given the effluxion of time. I have no reservations about the truthfulness of his account.
As I have said, I accept the complainant’s evidence as to the sexual abuse he experienced at the hands of others prior to meeting the accused. I accept his account that he felt that he could trust the accused who had won his confidence, and disclosed that abuse.
Counsel for the prosecution submitted that that was the catalyst for the accused to take advantage of the complainant under the guise of endeavouring to understand what was being disclosed about the complainant’s past.
As counsel for the prosecution submitted it is not surprising that the accused’s advances were received by the complainant without protest in light of the complainant’s experience in the two or three years leading up to his contact with the accused.
The complainant’s account of the way in which it came about that the accused performed oral sex on the complainant was compelling. The complainant said that that was in the context of the accused asking the complainant whether there were any aspects of the sexual activities with the men that he enjoyed, and the complainant conceding to the accused during the counselling session that he enjoyed receiving oral sex. Similarly, the complainant’s account of the first act of buggery, and the way he felt afterwards, was compelling.
Counsel for the defence made the submission that the resentment initially felt by the complainant against the accused may have subliminally, over the intervening years, played a part in a displacement of what other men had done to him, onto the school counsellor.
Counsel for the defence submitted that I could not rely upon the complainant’s evidence, given the evidence and previous inconsistent statements as to the number of occasions upon which he saw the counsellor, and the timing of the sessions at which sexual activity is said to have taken place, to the requisite degree. He submitted that there was a compounding unreliability, given the change from definitely three, to three to four sessions of counselling to possibly six, combined with the change in the account of whether any sexual discussion or sexual activity took place during the first or second such session, and whether the first act of anal intercourse took place during the first, second or third counselling session. He said that the exaggeration of events over time ought to undermine any assessment of the reliability of the complainant’s evidence.
I bear in mind that in considering the evidence, it is necessary to keep in mind the basic principle that a case must be decided upon the evidence given on oath and subject to cross-examination in court. What a witness has said out of court is not evidence in the case. I also bear in mind, however, that there are certain respects in which it may be taken into consideration. If, as is alleged to be the case here, the complainant has said something outside the court which is inconsistent with his evidence in court, I may take the inconsistency into consideration when deciding whether to accept his evidence in court.
The cross-examination relating to prior inconsistent statements, challenging the reliability of the complainant’s memory, and his credibility, must be considered in the context of the complainant, now a 50 year old man, relating events that occurred some 36 years ago. The inability of the complainant to precisely describe the chronology of events is not surprising. Indeed had he been able to recount the events in precise chronological order and great detail may have been surprising, particularly given the previous sexual activity to which the complainant had been subjected.
Whilst there are inconsistencies between what the complainant accepts he said to police and his evidence-in-chief as to the timing of events, such inconsistencies do not cause me to doubt the veracity or reliability of his evidence as to the occurrence of the events constituting the particulars of Count 1.
I reject the contention that the complainant had a motive to fabricate his evidence on the basis of resentment of the accused for facilitating the complainant’s removal to the United Kingdom. I bear in mind of course that the accused does not have to prove a motive to lie, or indeed to prove anything, and that it is for the prosecution to prove each element of the charge beyond reasonable doubt.
Counsel for the prosecution was critical of the accused’s evidence. I again bear in mind that the accused does not have to prove anything. I accept the submission that the accused’s account was an attempt to minimise his contact with and interest in the complainant.
Counsel for the prosecution submitted that there was an aspect of unreality in the accused’s account, namely that he suggested that the complainant had described himself as Marshall’s pimp, and in the way in which the accused, upon hearing of the long standing sexual abuse of the complainant, merely said that he discouraged the complainant from doing so. I do not make much of that criticism of the accused’s evidence.
I however accept the submission that the accused’s evidence did have the flavour of portraying a disinterest in Q, and in the sexual content of the discussion, and that it was an attempt by the accused to distance himself from the complainant.
Findings
I accept the complainant as a witness of truth. I was impressed with his evidence. He made appropriate concessions in cross-examination. He did not give the impression of engaging in speculation. Whilst there were aspects of uncertainty given the passage of time, and some uncertainty as to the precise order of events, his evidence as to the occurrence of the sexual acts committed by the accused against him was unequivocal and convincing. The offences constituting the particulars of Count 1 were clearly identified within the course of conduct of the accused being (a) the accused causing the complainant to masturbate in the accused’s presence, (c) the accused performing an act of fellatio on the complainant and (d) the accused committing acts of buggery with the complainant, further particularised as the first and last act of buggery.
I found the accused to be an unimpressive witness. I bear in mind the difficulty faced in endeavouring to assess a witness’s veracity by his demeanour in the somewhat unnatural environment of the court room. I also bear in mind that the accused’s evidence is to be considered in light of his age and his significant illnesses, and the potential effect of age, the passage of time, and the consumption of various medications, upon his memory. However his explanations were unconvincing, as was his manner. He did endeavour to distance himself from the complainant by seeking to minimise his involvement with the complainant. In my view he lacked credibility. I reject his denials of the specific matters alleged against him which are the basis for the charges.
Disbelieving the accused of course does not establish the prosecution case. It is necessary for me to consider whether the elements of the offences constituting the particulars of Count 1 have been proved on the evidence. I find the elements of each particular proved beyond reasonable doubt, on the basis of the evidence of the complainant, after carefully considering his evidence.
In relation to the evidence relating to the other acts comprising the ongoing acts of sexual exploitation, I find beyond reasonable doubt that the accused did cause the complainant to masturbate in the accused’s presence on more than one occasion, and find beyond reasonable doubt that the accused did engage in buggery with the complainant on more occasions that the two acts particularised as particular (d) in Count 1.
Findings as to Acts of Sexual Exploitation
Particular (a) – Gross Indecency (Count 2 in the alternative)
I find it proved beyond reasonable doubt that the accused caused the complainant to masturbate in the presence of the accused on more than one occasion, including the particularised occasion.
The complainant was not sure whether that occurred during the first or second session. He said that the first occasion that he had masturbated in the accused’s presence was in the accused’s office. That is consistent with the early sessions being in the office in the administration building. I find each element of that offence proved beyond reasonable doubt. It is not essential that the precise date or particular session in which that act occurred be identified.
Particular (c) – Indecent Assault
I find it proved beyond reasonable doubt that the accused performed an act of fellatio upon the complainant. Again it is not essential to identify the precise date or particular counselling session in which that act occurred.
Particular (d) – Buggery (Counts 4 and 5 in the alternative)
In find it proved beyond reasonable doubt that the accused engaged in acts of buggery with the complainant, including the two particularised occasions. Those are the first occasion and last occasion on which anal sexual intercourse is alleged to have taken place. The first occasion was in the library. The last occasion was in the accused’s office. I find each of the ingredients of the offences constituted by these acts established beyond reasonable doubt, and would have found Counts 4 and 5 proved.
I have carefully scrutinised the evidence of the complainant. In doing so I take into account the period of time which has elapsed since the events to which he was deposing occurred. I am left with no doubt that the specific acts alleged by the complainant occurred and that the accused has therefore committed more than one sexual offence over a period of not less than three days against the complainant.
Accordingly I find that each element of the charge of persistent sexual exploitation of a child has been established beyond reasonable doubt.
Verdict
Count 1 – guilty.
As Counts 2, 4 and 5 were charged in the alternative, there is no need to proceed to a verdict in relation to those charges.
6
1