R v Moar (No 2)
[2013] SADC 63
•17 May 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOAR (NO 2)
Criminal Trial by Judge Alone
[2013] SADC 63
Reasons for Decision of His Honour Judge Chivell
17 May 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Charge of persistent sexual exploitation of a child, alleged to have occurred in 1974 when the accused was a teacher at the complainant's school and the complainant was aged 14 years. Trial of objective elements pursuant to s 269N Criminal Law Consolidation Act.
Objective elements found proved beyond reasonable doubt.
Criminal Law Consolidation Act 1935 s 50, s 269B(1), s 269N; Evidence Act 1929 s 34CB, s 34M, referred to.
R v R, R & R, LJ [2008] SASC 35; R v Warsap (2010) 106 SASR 264; R v Murre [2001] NSWCCA 286; R v S, DD (2010) 109 SASR 46, considered.
R v MOAR (NO 2)
[2013] SADC 63Introduction
Mr Moar is charged with persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (‘CLCA’). There are alternative charges of gross indecency, contrary to s 69(1)(c) of the CLCA (one count), and buggery, contrary to s 69(1)(a) of the CLCA (two counts).
It is alleged that these offences occurred in 1974, when the complainant (whom I will call ‘C’) was a student at Para Vista High School (‘PVHS’) and Mr Moar was a teacher/school counsellor there.
The particulars of each count are that Mr Moar:
1.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 C, 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 C by causing him to masturbate in Mr Moar’s presence;
(b)indecently assaulting C, by performing an act of fellatio on him;
(c)[not relied on];
(d)committing acts of buggery with C.
2.Between the 1st day of August 1974 and the 1st day of December 1974 at Para Vista, committed an act of gross indecency with C by causing him to masturbate in Mr Moar’s presence.
3.[Nolle prosequi]
4.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 C.
5.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 C.
This is a trial of the objective elements of the offences pursuant to s 269N A(1), (2) and (3) of the CLCA. These subsections provide:
(1) The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established.
(2) If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
(3) On the trial of the objective elements of an offence under this section, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.
As to subsection (3), no issue arises in this trial as to the defensibility of Mr Moar’s alleged conduct.
Mr Moar elected to have this trial conducted by a judge sitting without a jury, pursuant to s 269B(1) of the CLCA.
Section 50 of the CLCA creates the offence of persistent sexual exploitation of a child. Subsections 50(1) and (2) provide:
(1) 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.
Maximum penalty: Imprisonment for life.
(2) For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
Further, subsections 50(5) and (6) provide:
(5) A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6) This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
Section 50 was enacted in 2008. Clearly, s 50(6) applies to this charge.
The elements of the crime of persistent sexual exploitation of a child are:
1.At the time of the alleged offence, the accused was an adult person.
2.The accused committed more than one act of sexual exploitation of a particular child.
3.The child was under the prescribed age - s 50(7) defines ‘prescribed age’ as:
(a) in the case of a person who is in a position of authority in relation to the child—18 years;
(b) in any other case—17 years.
Section 50(8) defines a person ‘in a position of authority’ as including ‘a teacher … engaged in the education of the child’.
4.The acts of sexual exploitation occurred over a period of not less than three days.
An act of sexual exploitation is defined by s 50(2), quoted above. ‘Sexual offence’ is defined by s 50(7) as:
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 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.
General Directions
The Supreme Court has stated that it is not necessary that I set out in these reasons all of the directions which a judge might give to a jury in a criminal trial.[1]
[1] R v R, R & R, LJ [2008] SASC 35
However, I remind myself of the following fundamental principles:
·The accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·The burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused.
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
·Every element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
Forensic Disadvantage – s 34CB of the Evidence Act 1929
The events described in evidence allegedly occurred in 1974, 39 years ago.
Clearly, this is a very substantial time interval, and results in forensic disadvantage to Mr Moar. Further, because C did not report the matter at the time, or even within a few years, there are no contemporaneous written records or reports to be consulted. It is very unlikely that any witnesses would be able to recall surrounding events. Indeed, two potential witnesses, C’s half-sister (whom I will call R) and her husband, are now deceased.
C was unable to give evidence about precise dates or times when the described events occurred because of the time elapsed. It is therefore obvious that Mr Moar would be prevented from obtaining alibi evidence.
In these circumstances, the forensic disadvantage to Mr Moar is obvious. His access to potentially exonerating evidence and his counsel’s ability to cross-examine C are severely limited.
I am therefore required to take the forensic disadvantage suffered by Mr Moar into account when scrutinising the evidence. I must scrutinise C’s evidence with great care, and not reach a conclusion of guilt unless I am satisfied beyond reasonable doubt after taking the forensic disadvantage into account.
Complainant’s Evidence
C was born on 27 February 1960, so he turned 14 in 1974. Having regard to the age range pleaded in the information, at all relevant times he was 14 years old.
C moved to Australia from the United Kingdom with his parents and younger sister in 1969. R was about 25 years older than him and was married. She had come to Australia a few years earlier. C’s parents built a house at Para Vista. He began attending Para Vista Primary School in 1970, and PVHS in 1972 or thereabouts.[2]
[2] T13
C’s father died in 1974, when he was in second year (Year 9). He said he experienced ‘behavioural issues’ after his father’s death and, because his mother and sister returned to the United Kingdom to attend to family affairs, he went to stay with R and her husband. They were unable to cope with C, so they sought the assistance of a school counsellor. This was Mr Moar.[3]
[3] T15
C said that his initial contact with Mr Moar was in his office. R and her husband took him. He estimated that this occurred three to four weeks after he went to stay with them. This was a ‘number of weeks’ after his father died. It is an agreed fact that his father died on 19 August 1974 (Exhibit P1, No. 3).
It is also an agreed fact that Mr Moar was the sole school counsellor at PVHS at this time, indeed from 1 January 1974 to 29 January 1976.
C said that R and her husband left the office so that he was alone with Mr Moar. He said the meetings usually occurred after school hours; it was the first of several such meetings, no more than six, and they lasted for an hour or so.[4] C summarised what happened as follows:
Mr Moar basically started asking me questions about my behaviour and things about, you know, me in general and over a period of time basically won my trust to start to divulge more about why perhaps I might have been behaving the way that I was. Initially, I was taken there because of inappropriately touching a woman on the breasts and through the course of discussion with Mr Moar I divulged to him that I’d been sexually abused by a number of men and he gradually coaxed that out of me as to what that sort of contained and he was quite, quite easy to probably trust in that regard, in his concern appeared to be genuine as to what he was hoping to be able to do for me and then over a period of time Mr Moar, as I recall, said that he wanted to try and understand what it was that had happened to me and got me to demonstrate to him some of the acts as far as masturbation and some of those acts that had been committed upon me. Eventually, as I recall, he wanted to be able to understand more about what had happened and it ended with the result of him having anal sex with me and, at that stage, as I recall, the very first instance of that occurring was in the school library. I can’t recall the reason why we ended up in the school library but I know for a fact that it ended up in the school library.[5]
[4] T17-19
[5] T18
As to the earlier sexual abuse, C said that it occurred over the course of a few years, commencing well before his father died. He was abused by five men.[6]
[6] T21
Without descending into detail, C’s evidence can be summarised by saying that, after meeting the elder brother of a school friend, the brother sexually abused him and then introduced him to some other, now-notorious, paedophiles who also abused him.
This pattern of abuse started when C was about 11½ years old, and continued until after his father died. It stopped when he moved in with R.
C said that he told Mr Moar about these events in counselling sessions. Mr Moar questioned him about it, and his disclosures were reluctant.[7] He said Mr Moar told him he ‘wanted to try to understand more about this abuse that had occurred’.[8] C said he only realised later in life that he had been sexually abused, that at the time he thought it was ‘fairly normal’ because he had been ‘so well groomed’.[9]
[7] T25
[8] T26
[9] T27
C said Mr Moar asked him to demonstrate masturbation to him, and eventually had anal intercourse with him. He said the first act of masturbation was in Mr Moar’s office. He was unable to recall if this happened in the first or second ‘counselling’ session.
C said he masturbated in Mr Moar’s presence five or six times,[10] and there were at least three acts of anal intercourse in the school library and at least one act of anal intercourse in Mr Moar’s office.[11] He estimated that there were probably:
… no more than six counselling sessions. I’m very vague as to the complete time frame, but, as I have said previously, no more than a period of about three months.[12]
He said anal intercourse occurred on each occasion after the first ‘counselling’ session.[13]
[10] T27
[11] T28-9
[12] ibid
[13] T31
C said he told no one about what happened.
As to the way this pattern concluded, C said:
I can recollect in a counselling session, and I’m assuming it would have been the last counselling session that we had, that Mr Moar made mention of the vice squad being interested in my activities, that he thought that under the circumstances it was best for me to be returned to my mother in the UK at the earliest opportunity and I think that within a matter of weeks after that session I was on a plane to the United Kingdom.[14]
[14] T32
C said he did not want to return to the United Kingdom and be away from the people he regarded as his friends (i.e. the paedophiles).[15]
[15] T33
It is an agreed fact that C and his mother returned to Australia from the United Kingdom on 22 May 1975, having left, to his recollection, in November 1974.[16] He thought that Mr Moar had left PVHS prior to his return, but it is an agreed fact that Mr Moar was school counsellor there until January 1976 (Exhibit P1, No. 5).
[16] T36
C said he first discussed the fact that he had been sexually abused with a female friend in around 1995. He said he went to the police in 1997.[17]
[17] T37
In cross-examination, C conceded that although he had a recollection of Mr Moar performing fellatio upon him, he could not be sure because that fitted the pattern of behaviour of the other men, and he may have attributed that to Mr Moar.[18] For this reason, Ms Cairney, counsel for the Director of Public Prosecutions, conceded that this particular of count 1 (particular (c)), has not been proved.
[18] T40
C said he did not report Mr Moar to the police initially because he was unable to recall his name. It came to him later in a conversation with a police officer.[19]
[19] T42
C was cross-examined about a statement he made to police in 2005, when he told them he had gone to see one of the paedophiles, Ric Marshall, without R’s knowledge. He told Marshall that he thought R might know what had gone on, referring to his sexual activities, and ‘wanted to send me to a counsellor’. He said that this was between 20 August and the end of November 1974, before he had seen the counsellor.[20] Further, he told the police that Marshall had driven him into the Adelaide Hills and, in a park near Morialta, Marshall threatened him ‘not to say anything’.[21] He said that Marshall had anal sexual intercourse with him on that occasion at Morialta, which was the last time it occurred with anyone from that group.[22]
[20] T47
[21] T48
[22] T50
C said that he told Mr Moar what happened, after he was threatened by Marshall.
C admitted in cross-examination that he blamed Mr Moar because he thought Mr Moar had passed on information to R and her husband about the abuse by Marshall and the others. It was not until 1997 that he found out that they did not know about that. So for more than 20 years he was alienated from his family because he thought they were unfeeling or unsympathetic towards him as an abuse victim.[23]
[23] T63-67
Miss Fuller, counsel for Mr Moar, put to C in cross-examination that Mr Moar did not sexually abuse him at all, but that his memory is that he did because it fitted the pattern of abuse by the other men. C denied this.[24] However, it would make more sense if it was being suggested that Mr Moar had abused C to some extent, but that C’s memory was affected because it fitted the other pattern. This is what C was suggesting when he said he was not sure about the fellatio. But if Mr Moar did not abuse C at all, there was no pattern for it to follow.
[24] T72
Other Evidence
As part of the Agreed Facts (Exhibit P1), there were some excerpts from a record of interview conducted by police with Mr Moar on 22 January 2007, a transcript of Mr Moar’s evidence in an earlier trial of this matter in this Court, and three paragraphs of evidence which would have been given by R had she been called. When I questioned the use to which this evidence might be put, Miss Fuller stated the agreed position as follows:
I had discussions with Ms Cairney about this. It seems to me that it stands in the same position, for example, as a record of interview that would be tendered as part of the prosecution case. Now true it is that in these proceedings no question of the defensibility of the conduct can be raised in terms of the subjective elements, but in the evidence of Mr Moar, there is both some evidence corroborating some aspects of the complainant’s account, but there is also evidence of an exculpatory nature which your Honour would necessarily have to weigh into the balance on the question of whether the objective elements have been established.
I will treat the evidence in that way, having regard to what counsel put to me in their written submissions about what use can be made of this evidence.
In short summary, Mr Moar said in the police interview:
·At PVHS he was a school counsellor.
·The counsellor’s office was just inside the library entrance door to the right. It was a single room and there were chairs outside where students sat and waited.
·This was downstairs.
·There were no other counsellors at PVHS when he was there.
At the last trial, Mr Moar said:
·He was a school counsellor at PVHS at the time C was a student there (p. 81).
·He saw C as a student counsellor.
·C’s friends came to him to ask him to see C.
·He saw C twice after that.
·He had no memory of R or her husband.
·He did not have anal sexual intercourse with C, nor did he have C masturbate in front of him.
·He did not discuss anal sex with C.
·C became angry with questions about his style of life (p. 81).
·C admitted that his sister had found him in bed with a man.
·C said he had done ‘far worse things’ with Ric.
·C said he knew Ric Marshall was in a bit of trouble. He said he was a ‘pimp’ for him. He said he took his mates to see Ric Marshall. He said ‘It is pretty good the way we work it out’.
·They ‘probably just talked about the nature of the act (of anal intercourse) and the fact of the diseases he would contract because it was around about that (time) the AIDS syndrome was commencing to be a profound business’.
·Mr Moar had no recollection of speaking to R or her husband on the telephone, or in person.
·Mr Moar’s medical conditions have an adverse effect on his long-term memory.
·There was no scheme of mandatory reporting when C came to see Mr Moar.
In cross-examination, Mr Moar said:
·He could not remember the names of C’s friends who approached him, but he remembered they were brothers (p. 86).
·At his request, these brothers brought C to see him, and then left.
·He did not tell C’s parents about what he had disclosed because C refused permission to do so.
·He understood that C planned to continue having a sexual relationship with Ric Marshall.
·If he had told anyone about C’s disclosures, students would not come to him if they thought that might happen.
·The first interview was quite short, 15 minutes or so. He asked to see C again, C said he did not really see the point but he agreed to come a week later (p. 91).
·The first meeting was in a morning period.
·The second meeting was after school hours, between 3.30 and 4 p.m.
·C was ‘stand-offish’ in the second meeting. He said he did not want to be there.
·They were the only two occasions he saw C, as far as he could recall.
·He had no key to the library after school hours until after September-October 1974 (p. 96).
·He did not ask for more details about what C was doing with Ric Marshall. He said: ‘I don’t see any reason why I would want to understand’ (p. 96).
·He did not try to dissuade C from pursuing his activities with Ric Marshall because C just ‘brushed me off all the time’.
·He did not suggest C should return to the United Kingdom.
·He denied having any sexual dealings with C.
To the trial judge, Mr Moar said:
·He told C his activities with Ric Marshall might bring him in contact with the police because he knew Ric Marshall had been reported and investigated a number of times for interfering with boys.
·He was aware of Ric Marshall’s activities in 1974 because he had read about it in the newspapers.
·He was aware that Ric Marshall was associated with the Cottage Theatre because a fellow teacher had told him that it was a ‘bit of a divey place’ (p. 100).
·He knew where the Cottage Theatre was because he had to go past it to get to the Diabetic Association (ibid). He said this was ‘years before I had anything to do with C’.
In further cross-examination, Mr Moar had to admit that he was not diagnosed with diabetes until 1977.
On a later occasion, in further cross-examination, Mr Moar admitted that he had a key to the PVHS library in September-October 1974. His office was in the library building, and he would open an internal manual lock to get into the library (p. 108).
In further questioning, he said the female colleague who told him about the Cottage Theatre did so in about 1968. She told him Ric Marshall was ‘always playing around with the boys backstage’ (p. 109). He said he read about Ric Marshall being investigated for interfering with boys in ‘The Advertiser’ newspaper.
Arising from that evidence, a number of further facts were agreed (Exhibit P1, Nos 5, 8, 10, 11 and 12):
·Between 1 January 1974 and 29 January 1976, James Moar was the sole school counsellor at PVHS (already mentioned).
·In 1974 there were no mandatory reporting requirements for sexual abuse for teachers at schools in South Australia.
·Employees from The Advertiser have reviewed Advertiser publications relating to Ric Marshall. The first article published in The Advertiser disclosing sexual abuse allegations against Ric Marshall was on 15 November 2005. The Advertiser had published earlier articles concerning Ric Marshall but those articles related to his work in the theatre.
·The earliest electronic police record of a complaint of sexual abuse allegations concerning Ric Marshall was made in 2003. Police records prior to 1981 are not in electronic format and have not been reviewed.
·AIDS was first recognised by the United States Centre for Disease Control and Prevention in 1981, and its cause, HIV, was identified in the early 1980s.
It can be seen that, in important respects, Mr Moar’s evidence was contradicted, particularly about:
·the date when he began visiting the Diabetic Association;
·the date when he could have learned about Ric Marshall being investigated for sexual abuse of boys;
·the date when he could have known about the risk of AIDS.
Addresses of Counsel
I agree with the submission of Ms Cairney[25] that:
The particulars alleged do not require that degree of particularity that would be required if the act were charged as a separate offence, nor is it necessary to identify particular acts of sexual exploitation – or the occasions on which, the places at which, or the order in which the acts are alleged to have occurred:
It follows that the offence may be proved without proof of particular dates or occasions on which the acts of sexual exploitation are alleged to have occurred or the order in which they occurred. It will be sufficient if a pattern of offending behaviour during the relevant period is established beyond reasonable doubt.[26]
Miss Fuller made a similar submission.[27]
[25] Prosecution Closing Submissions [3]
[26] R v Warsap (2010) 106 SASR 264, 267 [7] per Bleby J
[27] Accused's Closing Submissions [3]
Ms Cairney accepts that the prosecution case depends ‘entirely’ on C’s evidence. She submitted that he was a truthful witness, that he did not tend to reconstruct to fill gaps in his memory, gaps which are understandable in the circumstances.
It is true that C made the appropriate concession that he was not completely certain that Mr Moar performed fellatio on him, whereas he was completely certain that the other acts occurred.
Ms Cairney pointed out that the context in which these allegations occurred was different from the previous abuse he had suffered. He is less likely to have conflated those memories with these incidents, which occurred in such a different context.
Ms Cairney argued that C’s evidence about Mr Moar gaining his trust and seeking to ‘understand’ more about the previous abuse had the ring of truth about it. She also pointed out that C’s previous experience provides a ready explanation as to why he submitted to Mr Moar’s advances without further protest.
Ms Cairney submitted that any inconsistencies in C’s evidence are unsurprising and understandable in the circumstances.
As to Mr Moar’s evidence, Ms Cairney argued that his account was inherently implausible. In particular:
·his evidence that two school friends of C’s brought him for counselling after hearing that he had been caught in bed with an older man;
·Mr Moar’s inaction, on his version, after learning from C that he was engaging in sexual conduct with an older man whom he knew had already come to the attention of the police for such conduct;
·Mr Moar’s evidence that C described himself as Ric Marshall’s ‘pimp’, getting other boys to go and see him.
Ms Cairney summarised the prosecution case as follows:
The complainant described first seeing the accused within three to four weeks of his going to live with [R] – which was around four to six weeks after his father passed away on 19 August 1974. Over a period of time of no more than three months, the complain(an)t saw the accused between four and six times – the regularity of it being a ‘fortnightly type situation.’ In the first or second session, the complainant disclosed being abused to the accused, who then caused the complainant to masturbate in his presence, in his office. The complainant and the accused moved to the library where the first act of anal sexual intercourse took place. At each counselling session after that first act, the accused had anal intercourse with the complainant. At least two of those occasions were in the library, and one occasion took place in the accused’s office, over his desk. The complainant masturbated in the accused’s presence more than once - no more than five or six occasions. [28]
[28] Prosecution Closing Submissions [17]
She submitted that each of those facts had been proved beyond reasonable doubt, and that I should therefore find the objective elements of the offence proved.
Miss Fuller submitted that the fact of C’s prior sexual abuse means that his inability to recall detail is more significant. She argued:
If it is accepted that the complainant was sexually abused in the manner described before he met the accused and had disclosed this to the accused but then laboured under a mistaken belief that the accused had informed his guardians of the disclosed abuse, there is a real possibility that the complainant has subconsciously attributed or ascribed to the accused the offending perpetrated by others. That is, the complainant has, in the very way that he explained his ‘recollection’ of the accused performing fellatio on him, a false recollection of the sexual abuse by the accused.[29]
[29] Accused's Closing Submissions [6]
Miss Fuller acknowledged that in R v Warsap,[30] Bleby J said:
The inability to recall details of individual incidents of sexual abuse and precisely when they occurred is not uncommon where abuse has occurred on a number of occasions a matter of years before the giving of evidence of the events. That in itself is insufficient to raise compelling doubts about the complainant’s reliability.
However, she also referred to R v Murre,[31] in which Adams J said:
Part of the problem with assessing the significance of imprecision and inconsistency in cases such as this is the strong temptation to explain them away by the passing of time. Imprecision and inconsistency, which in the ordinary case, would be significant, are discounted in favour of the prosecution. The extent to which these matters may have assisted the defence or the prosecution is necessarily uncertain, but that very uncertainty gives rise to the danger about which the jury must be warned. The risk that the jury will not appreciate that the case it is hearing may well be, to a greater or lesser extent, an artefact, which has been shaped, as it were, by the corrosive effects of time, is a very real one, requiring emphatic directions.
[30] supra, at [29]
[31] [2001] NSWCCA 286
Miss Fuller conceded that it is open to me to accept C’s evidence about the previous sexual abuse he described.[32] However, his evidence about complaining about that abuse does not, by virtue of s 34M of the Evidence Act, constitute evidence of consistency of C’s conduct, in relation to the case against Mr Moar. I accept that (see R v S, DD[33]).
[32] Accused's Closing Submissions [9]
[33] (2010) 109 SASR 46 at [98-115]
Miss Fuller pointed to what she described as prior inconsistent statements made by C:
·his evidence that he was ‘very confident’ that, when he went to see Marshall and another man in contravention of a curfew imposed by R, the counselling sessions with Mr Moar had already started, whereas he told the police in 2005 that this occurred before he saw the counsellor;
·his evidence to me that the last act of anal intercourse occurred in the school library rather than in Mr Moar’s office, which had been his evidence in the earlier trial;
·his evidence in the previous trial that the first act of anal intercourse occurred during the second session of counselling, whereas he told the police in 2004 that it was during the first session, and in 2005 he told the police that it occurred during the third session, and before me that he could not recall in which of those sessions it had occurred;
·his evidence to me that, after the first act of anal intercourse, he went to the toilet and cleaned himself up, whereas in 2005 he told the police that he was distressed because he could not find a toilet;
·further, Miss Fuller pointed out:
The complainant gave evidence that he saw the accused on no more than six occasions, that he masturbated in front of the accused on no more than five or six occasions and that there would not have been any more than ‘perhaps’ four or five acts of anal intercourse all of which (with the exception of one) occurred in the library. When the complainant was interviewed by Detective Bulmer in 2004 he said that he had been sexually abused by the accused no more than three or four times and in so saying he was describing anal penetration. He did not say anything to Detective Bulmer about any other sexual acts perpetrated upon him by the accused. The complainant conceded that he could have had less than six counselling sessions with the accused but did not believe that it was as few as two or three because it did not seem possible that the things he recalled happening could have occurred in a shorter space of time.[34]
·C’s evidence that R and her husband took him to the first counselling session, whereas it is an agreed fact that R would have given evidence that she had never taken C to see the school counsellor;
·C’s evidence that R did not know about his dealings with Marshall and the others, whereas she would have given evidence that she and her husband went to see Mr Moar as a result of his contacting them and voicing his concerns about that;
·C’s evidence that he did not tell R about what happened the night he went to see Marshall and the other man in breach of the curfew, whereas she would have given evidence that he did tell them what happened, or at least, on his version, part of what happened.
[34] Accused's Closing Submissions [11.5]
Miss Fuller submitted that it is surprising that C was unable to recall such detail when, compared with the earlier abuse, the allegations involving Mr Moar arose over a shorter time period, in a different location, by a person not associated with the previous abuses.[35] However, Miss Fuller had, in an earlier paragraph of her submissions, pointed out the ‘striking similarities’ between the previous abuse and these allegations, in that:
·the other men were older than C;
·the person who introduced C to those men was someone C trusted;
·the other men were also men C trusted;
·the sexual acts were similar (i.e. anal penetration, fellatio, self-masturbation).
[35] Accused's Closing Submissions [15]
I am unable to draw any inferences from these competing factors. The fact is that these alleged events occurred a long time ago, C has given various statements to police, and has now given evidence and been cross-examined twice about these allegations. The competing factors referred to in Warsap and Murre act as a reminder that such factors exist. All I can do is apply the principles in the general directions I have given myself, and scrutinise C’s evidence with great care.
As to the evidence R would have given, it is not agreed that it is accurate. It is unsworn, and untested by cross-examination. Not only is it inconsistent with C’s evidence, it is also inconsistent with Mr Moar’s evidence – he gave evidence that he had no memory of having spoken to R, and denied that he suggested that C should return to the United Kingdom (p. 97). I regard the agreed fact about her evidence as carrying relatively little weight.
Miss Fuller submitted that it is remarkable that, in light of C’s admitted reluctance to attend counselling, he would disclose the previous abuse during the first counselling session.
I do not accept that. C made it clear that, as a result of the ‘grooming’ he had received from Marshall and the others, he did not perceive that there was anything particularly remarkable about what had happened. He said:
I don’t believe I thought I had been sexually abused. I think that came about in a realisation later in life. Because I’d been so well groomed, I believe, by Phillip Cave in the initial instance, it seemed to me to be a fairly normal aspect. So at that stage I really didn’t believe – I didn’t feel I had been sexually abused.[36]
[36] T27
It seems to me that C was much more likely to make a disclosure to Mr Moar than a boy who was deeply ashamed and embarrassed by such abuse, in the same way as he was more likely to submit to further abuse than a boy who had not had such experience.
Miss Fuller argued that C’s failure to disclose the abuse by Mr Moar to R and her husband is significant since he believed that Mr Moar had told them about the previous abuse.
Section 34M(2) of the Evidence Act provides that no suggestion or statement may be made to the jury, in a case such as this, 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.
There is no jury in this case, but the policy of the legislation is clear and one which accords with the experience of the courts – there is no rulebook as to how a victim of a sexual crime should behave, and drawing inferences from an alleged victim’s post-offence conduct is highly problematic.
I also disagree with Miss Fuller’s submission that if Mr Moar did advise that C should return to the United Kingdom (which her client denied), such advice would have been ‘odd’ if he had also been abusing C. Such advice is also consistent with guilt. It is consistent with Mr Moar regretting his behaviour, and being fearful of further temptation through contact with C. Further, he could have decided that C might tell someone else about Mr Moar’s behaviour, and so it would be safer if he went to the United Kingdom. The inference to be drawn from the evidence is unclear. I regard this issue as neutral.
Miss Fuller submitted that C had a motive to lie and make false allegations against Mr Moar. C admitted he bore Mr Moar ill will, because he thought that Mr Moar had told R and her husband that he had been abused by Marshall and the others. They did nothing to support him. It was not until 1997, on his version, that he became aware that they had not been told. I repeat, R’s version is different – she would have given evidence that they were told by Mr Moar about that, a fact which Mr Moar denies.
In any event, C did say that he thought ill of Mr Moar because he was responsible for his belief that his family failed to support him. Instead of passing on the information, Mr Moar had instigated the trip back to the United Kingdom against his wishes.[37]
[37] T66
It seems to me that the flaw in this submission is that C has known since about 1997, on his version of events, that his family were not informed by Mr Moar in 1974 about the abuse by Marshall and the others.[38] He has not been labouring under a misapprehension about that since then. He first reported Mr Moar to the police in Victoria in 1997.[39]
[38] T63-7
[39] T37 and T42
Alternatively, Miss Fuller argued that C’s evidence is the result of displaced memory rather than conscious lying. She submitted:
24. That history must also be considered with the following matters:-
24.1 The extended period of abuse of the complainant by other men,
24.2 The similarity between the nature of the sexual acts perpetrated by them and those alleged against the accused. The complainant said that every sexual act by the accused fitted the same pattern of sexual abuse by Cave and the others,
24.3 The fact that the complainant conceded that his account of fellatio being performed upon him by the accused could have been a displaced or false memory.
25.In these circumstances, there exists the real possibility that the acts alleged against the accused are a product of a displaced memory explicable by reason of the emotional trauma of years of abuse by older men immediately before meeting the accused and the longstanding resentment for the accused in whom he had confided, in whom he had trusted but who had failed him and led him to believe for years that his family did not care and had abandoned him.[40]
[40] Accused's Closing Submissions [24-25]
Miss Fuller cited the example of C giving evidence that he could not be sure that Mr Moar performed fellatio upon him. She cited the following passage of evidence:
Q.You were asked some questions by Ms Cairney about whether, in the course of the counselling sessions with Mr Moar, he performed oral sex on you, and you said you can’t be sure, he may not have done that.
A.That’s correct.
Q.But it appeared to fit that pattern of abuse you described.
A.Yes.
Q.Is it possible that thinking that he might have performed oral sex on you is something that you’ve attributed to Mr Moar because that is what all of these other men were doing to you.
A.Predominantly, yes.
Q.So you accept that as far as your memory is concerned, Mr Moar may not have done that to you, but it seemed like he did because that’s what you were used to.
A.Yes.[41]
(Miss Fuller’s emphasis.)
[41] T40.10-26, quoted in Accused's Closing Submissions [27]
However, the point is that C himself flagged that issue as one where his memory was imperfect. But he resolutely insisted that the other allegations were true, and that he could not be mistaken about them. I note Miss Fuller’s submission that these memories could be subconsciously false.
Conclusions
I have scrutinised C’s evidence as carefully as I can. I was impressed with his candour, his straightforwardness, his willingness to concede where his memory was imperfect. He was cross-examined expertly by Miss Fuller, but I found no reason to doubt his truthfulness. As to his reliability, I reject the suggestion that he has subconsciously conflated the abuse by Marshall and the others with the abuse by Mr Moar. The pattern of abuse, in the sense of the particular acts performed, may have been similar but, as Miss Fuller acknowledged in her submissions, the context was completely different.
I reject the evidence tendered which contradicts C’s evidence. I have already explained the reasons why I do not rely on the agreed facts about what R would have said had she given evidence. I found the evidence given by Mr Moar at the last trial completely unconvincing, somewhat self-contradictory and totally implausible.
I have not had the opportunity to assess Mr Moar’s evidence by hearing it in court, but that does not oblige me to find that there must be a reasonable possibility that it is true. Applying the agreed approach to this evidence, it provides evidence of Mr Moar’s answer to the charge, but it has not been sworn in this court, and has not been tested by cross-examination in this court. On the other hand, it was sworn and tested in the previous hearing. I am satisfied beyond reasonable doubt that it is untrue.
I am satisfied beyond reasonable doubt that the particulars of the crime of persistent sexual exploitation of a child (with the exception of particular (c)) have been proved beyond reasonable doubt, subject to the limitations described by Bleby J in Warsap (supra). It follows that I am satisfied beyond reasonable doubt that the objective elements of that crime have been proved beyond reasonable doubt.
It is therefore unnecessary to consider counts 2, 4 and 5 on the information.
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