R v Mountford

[2018] SADC 115

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v MOUNTFORD

Criminal Trial by Judge Alone

[2018] SADC 115

Reasons for the Verdicts of Her Honour Judge Davison

15 November 2018

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

The accused is charged with two counts of indecent assault and one count of unlawful sexual intercourse with a person under 12. The offences are alleged to have occurred about 14 years ago.

In 2004 and 2006, the accused was interviewed in relation to the complainant's three older brothers. He made admissions to sexually assaulting them at about the same time and in a similar manner to allegations of the complainant. His admissions to the uncharged conduct were led as circumstantial evidence of a fact an issue in this trial.

The evidence of the complainant and his mother was credible and reliable. The denials by the accused in a record of interview in 2016 were rejected as truthful beyond reasonable doubt.

Verdicts: Guilty of each count.

Juries Act 1927 (SA) s7; Criminal Law Consolidation Act 1935 (SA) s 5; Evidence Act 1929 (SA) s 34P; R v MJJ; R v CJN [2013] SASCFC 51; Hughes v The Queen (2017) 92 ALJR 92; R v C, CA [2013] SASCFC 137; Douglass v The Queen (2012) 86 ALJR 1086, referred to.

R v MOUNTFORD
[2018] SADC 115

Introduction

1. The accused is charged with two counts of indecent assault and one count of unlawful sexual intercourse with a person under 12. It is alleged that he committed these offences between 16 April 2003 and 1 May 2004, when the complainant was aged between five and six years old. It is alleged that the accused was living with the complainant’s family. The complainant and his mother gave evidence. The accused has made admissions in records of interviews conducted in 2004 and 2006 to sexually abusing the complainant’s three older brothers. The prosecution rely upon the evidence of the complainant, his mother and the admissions to prove a proclivity and sexual interest in the boys in this family in order to prove the charges in this case. The accused was interviewed by the police and denied the allegations of the charged offences.

2. The accused elected for trial by Judge alone.[1] The application was granted and the trial proceeded before me without a jury.

   [1] Juries Act 1927 (SA) s 7(1)(a).

   Preliminary Application

3. The prosecution made applications for a closed court whilst the complainant gave evidence, for the complainant to give his evidence via CCTV, for the court to be closed and for his evidence to be recorded pursuant to s 13C of the Evidence Act 1929 (SA). These applications were not opposed by the defence. I granted both applications. I remind myself that I must not allow the fact that these special arrangements were in place to draw any adverse inference against the accused or to influence the weight I give to the evidence of the complainant.

   Charges

   First Count

   Statement of Offence

   Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Raymond Edward Malcolm Mountford between the 16th day of April 2003 and the 1st day of May 2004 at Salisbury North, indecently assaulted [JS], a person under the age of 12 years, by touching his testicles and penis.

   Second Count

   Statement of Offence

   Unlawful Sexual Intercourse with a Person under 12 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Raymond Edward Malcolm Mountford between the 16th day of April 2003 and the 1st day of May 2004 at Salisbury North, had sexual intercourse with [JS], a person under the age of 12 years, by performing an act of fellatio upon him.

   Third Count

   Statement of Offence

   Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Raymond Edward Malcolm Mountford between the 16th day of April 2003 and the 1st day of May 2004 at Salisbury North, indecently assaulted [JS], a person under the age of 12 years, by causing [JS] to touch Raymond Edward Malcolm Mountford’s penis.

   Elements of the Charged Offences

   Indecent Assault

4. In order to prove the offence of indecent assault, there are two elements of the offence the prosecution must prove. Each must be proven beyond reasonable doubt:

   ·that the accused assaulted JS. An assault is the intentional and unlawful application of force to another person. That application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. It must be intentional, so purely unintended or accidental touching would not be sufficient;

   ·the assault must be accompanied by, or occur in circumstances of, indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation.

5. In addition to this, for the higher penalty provision to apply I must be satisfied beyond reasonable doubt that JS was under the age of 12 at the time of the offence.

   Unlawful Sexual Intercourse

6. To prove the offence of unlawful sexual intercourse with a person under 12 years, the prosecution must prove two elements beyond reasonable doubt:

   ·the accused had sexual intercourse with the complainant. The legal definition of sexual intercourse includes an act of fellatio.[2]

   ·the complainant was under the age of 12 years at the time the act of sexual intercourse took place.

   [2] Criminal Law Consolidation Act 1935 (SA) s 5(1).

   Legal Directions

7. I give myself the following directions.

8. The prosecution bears the onus of proving the guilt of the accused at all times. The accused is presumed innocent of the charge unless and until guilt has been proved beyond reasonable doubt.

9. The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the words “proved,” “established,” or “satisfied,” in each case I mean to an extent which excludes a reasonable doubt.

10. If I am satisfied that there is an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find that charge has not been proven beyond reasonable doubt and accordingly, the accused is not guilty.

11. I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of a witness’ evidence.

12. The accused participated in a number of interviews with the police. I remind myself that it is the answers that he gave that constitutes the evidence and that the assertions of the police that he has not adopted are hearsay. I note that there are references in the interview to other children. I have not had regard to this in my determination of the matter. During the interviews the accused made admissions. He does not dispute these admissions. I can place such weight upon them as I consider appropriate.

13. The accused did not give evidence. That was his right. I cannot and do not draw any adverse inference against him or the case he presents for declining to give evidence.

14. I must bring an open and unprejudiced mind in this case.  I must make my decision without sympathy or prejudice and not be influenced by public opinion in relation to this matter.

15. The accused is charged with three separate counts.  Each of these counts must be considered separately and only in relation to the evidence that is admissible in respect of each.

    Forensic Disadvantage

16. There has been a period of about eleven years between the alleged offending and the trial. This delay has resulted in a significant forensic disadvantage to the accused. There have been difficulties for him challenging and responding to the allegations. These difficulties include the ability to test the evidence in a meaningful way at a time when he, the complainant and possibly others had a memory in relation to the events surrounding the alleged offending and the circumstances generally. If the matter had been reported earlier there may have been evidence of a forensic nature that could have been obtained that may have assisted the accused in responding to the allegations.

17. I have taken into account the forensic disadvantage to the accused when scrutinising the evidence for the prosecution.

    Discreditable conduct

18. The prosecution has filed a notice pursuant to s 34P of the Evidence Act 1929 (SA) that reads in part

    Particulars of evidence of conduct:

    1. In respect of the first item of discreditable conduct:

    A1.  The nature of the discreditable conduct is the:

    a)   defendant’s involvement in the charged offending the subject of count 1, in relation to the charged offending in counts 2 and 3.

    b)   defendant’s involvement in the charged offending the subject of count 2, in relation to the charged offending in counts 1 and 3.

    c)   defendant’s involvement in the charged offending the subject of count 3, in relation to the charged offending in counts 1 and 2.

    A2.The witness from whom the evidence is to be led, whether in examination-in-chief or in cross-examination, is [the complainant].

    A3.The use of the evidence said to be permissible under section 34P(2)(b) in respect of each count is that:

    a)   the evidence of each act of sexual abuse is relied upon by the prosecution to prove the accused had a sexual interest in the complainant and a willingness to act upon that sexual interest and that he was therefore likely to have acted pursuant to that interest/propensity in relation to the charged acts.

    b)   The evidence establishes a particular sexual proclivity to offend in the way alleged by the complainant.

    2. In respect of the second item of discreditable conduct:

    B1.The nature of the discreditable conduct is prior sexual abuse of, and admitted sexual interest in [AS][3], [GS] and [CS].  This conduct is demonstrated by admissions made during interviews with police on 23 December 2004 and 23 January 2006.

    B2.The witnesses from whom the evidence is to be led, whether in examination-in-chief or in cross-examination, are Scott Bowen, Michael Bavey and Jessica Dickenson.

    B3.The use of the evidence said to be permissible under section 34P(2)(b) in respect of each count is that:

    a)   The evidence establishes an underlying unity or system or behaviour on the part of the accused such as to give rise to the objective improbability that the complainant is lying.

    b)   The evidence establishes a particular sexual proclivity to offend in the way alleged by the complainant.

    c)   The evidence proves that the accused had a sexual interest in the [S] brothers, a willingness to act upon that sexual interest, and that he was therefore likely to have acted pursuant to that interest/propensity in relation to the charged acts.

    [3]    The name of JS was in fact AS - for ease of reference he will hereafter be referred to as AS to avoid any confusion with the complainant, JS.

19. The reliance on the s 34P(2)(b) in respect of improbability reasoning is misplaced. That is, the improbability of the complainant having concocted or imagined his version of events when the accused has admitted similar conduct against his three brothers. This form of reasoning does not rely upon propensity reasoning or a disposition by the accused. I will return to this in due course.

20. It is convenient to set out the s 34P of the Evidence Act 1929 (SA) at this stage.

    (1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—

    (a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

    (b)is inadmissible for that purpose (impermissible use); and

    (c)subject to subsection (2), is inadmissible for any other purpose.

    (2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—

    (a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and

    (b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

    (3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

21. Section 34P draws a distinction between discreditable conduct evidence which relies on a particular propensity or disposition of the defendant and discreditable conduct evidence which otherwise has probative value. In order to rely upon a particular propensity or disposition of the accused, as circumstantial evidence of fact in issue, it must pass a higher threshold test for admissibility than discreditable conduct evidence which otherwise has probative value but does not rely on a particular propensity or disposition of the defendant.

22. Discreditable conduct evidence which relies upon a particular propensity or a disposition must possess strong probative value having regard to the particular issue or issues arising at trial. It must be more than a mere or general propensity and it must demonstrate a particular propensity or disposition which is strongly probative of the offence charged.

23. The question of the assessment of the probative value of evidence of discreditable conduct was discussed by Kourakis CJ in R v MJJ; R v CJN[4] in the following terms:

    The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged, and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.[5]

    At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps.  The first is to identify the particular fact which is in issue.  The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact.  Resorting to generalities such as “context”, “background” and “underlying unity” will seldom illuminate the analysis.

    [4]    R v MJJ; R v CJN (2013) SASR 81, 88-89 [18]-[19].

    [5]    Evidence Act 1929 (SA) s 34P(2)(a).

24. It is clearly a necessity to consider these issues having regard to the particular issues arising at trial.

25. There was no challenge by the defence to the evidence that was led in relation to this point, however, the argument was put that the evidence does not permit an inference to be drawn of a proclivity on the part on the accused such that would support the use of the evidence to convict the accused.

26. In a case in which the complainant’s evidence of the conduct alleged by the accused is in issue, evidence of a tendency to behave in such a way may be relevant to that fact in issue.

27. In this case the threshold question is whether the evidence is strongly probative and if so does that substantially outweigh the predjucial effect. To analyse this aspect, regard must be had to the nature of the evidence. In this case, it is admissions made by the accused that he had a sexual interest in the three older brothers of the complainant and that he acted on that interest, sexually interfering with each of them. This interference took the form of masturbating and fondling the penis of JS. He began by touching JS on the outside of his pants and later touched JS’ penis. He touched him quite a few times but cannot recall how many times. At that time, JS was seven to eight years old.

28. He admitted touching GS who was about nine to ten years old at about the same time. He admitted masturbating GS “a fair few times”.

29. He also masturbated CS who was 12 or 13 years old at that time. He admitted that it happened about six times. He also admitted bathing the three boys and admitted that he would have touched them inappropriately in this context.

30. The accused admitted that the touching of the three boys occurred while he was living in their family home and mostly occurred at a time when he was living in a caravan at the rear of their home. He admitted that he “loved” the boys and felt sorry for them because of the way they were treated by their mother.

31. The admissions by the accused establishes that he had sexual interest in the three brothers, and was prepared to act upon that interest when the opportunity arose. Further he admitted that these acts occurred at about the same time as the allegations of the complainant.

32. It is therefore alleged by the prosecution that the accused has a propensity to sexually abuse young boys in a context of the boys being members of the same family and very vulnerable at the time. The abuse occurred in an opportunistic manner and involved touching and masturbating the genitals.

33. The evidence must have a strong probative value having regard to the issue that arises in this trial. That issue is the conduct of the accused as alleged by the complainant. The strong probative value must outweigh any prejudicial effect the evidence may have on the accused.

34. The prejudicial effect may be in a case such as this a failure to recognise that whilst a person may have a particular state of mind at one stage, they may not always have that same state of mind. It may also cloud the decision maker’s view in respect of the case or elicit an emotional response. It may be the forensic disadvantage occasioned by the passage of time.[6] These are merely examples of a number of issues that may arise.

    [6]    Hughes v The Queen (2017) 92 ALJR 92, 17.

35. The admissions by the accused in relation to AS, GS and CS, established sexual interest in the boys and the tendency to act upon the interest. The admissions provide a very strong basis for proof of this tendency. It provides a stronger foundation than evidence given by witnesses of similar allegations that are denied by the accused such as in the case of Hughes v The Queen[7] and other like cases. The admissions relate to a time at which the charged offences also occurred. The nature of the admissions go beyond a generalised interest into an obsession with these boys and admissions to behaving in a sexualised way in various ways when they opportunity arose.

    [7] Ibid.

36. The distinction that the accused draws between his offending against the older brothers is that the complainant was significantly younger than his brothers. He makes reference to this in his interview in 2016. The complainant is four years younger than the younger brother of the three brothers. 

1. The second issue that arises is the extent that the proven tendency makes more likely the facts in issue — that is, the occurrence of the conduct of the sexual abuse as alleged by the complainant. A consideration is the similarity of the conduct by the accused against each of the brothers, that is, masturbation of the boys and touching their genitals. The allegations of the complainant are that the accused touched his penis and testes, and that he committed an act of fellatio upon him. Obviously the nature of the touching is similar in character although there is no evidence before me that the accused fellated the older brothers. The fact of a difference in the nature of the sexual acts may in some cases be of significance; however, in this case the similar nature of the allegations arises from the nature of the offending in the context of the abuse of the boys from one family, each of whom was under the age of 13 years, at a stage when they appeared to be very vulnerable. The conduct also occurred on some occasions in the caravan in which the accused was living at the family home. Further, the conduct occurred within a relatively short timeframe. The proven tendency to sexual assault young boys in these circumstances makes the allegations more likely to have occurred in my view.

2. In considering whether the admissions by the accused are admissible to prove a particular propensity or disposition, there must be consideration of whether the permissible use can be kept significantly separate and distinct from the impermissible use so as to remove any risk of the evidence being used for the impermissible purpose. This impermissible reasoning has been described as “bad person” reasoning.[8]

   [8]    R v C, CA [2013] SASCFC 137, [76].

3. In this case, the permissible purpose is that the admissions are strongly probative of a sexual interest in the boys under the age of 13 years in the same family and a proclivity to engage in sexual conduct when the opportunity presents in relation to each of them.

4. The nature of the offending in the circumstances as admitted by the accused means that the sexual interest as demonstrated and acted upon makes it more likely that the accused committed the charged offences. This is not because “bad person” reasoning is engaged but rather because the evidence is strongly probative of his sexual interest in the complainant and his willingness to engage in sexual conduct of this type.

5. The defence position is that in relation to the sexual interest and proclivity there are dissimilarities such as the ages of the boys and what appears to be a lengthy course of conduct in relation to the complainant’s three brothers as opposed to the two occasions about which the complainant has given evidence. There is also an act of fellatio alleged by the complainant but no admission of such conduct in relation to the others boys. The admissions to the police do not include any threats. I was also urged to bear in mind that no evidence was given by the other boys and to take into account the denials of impropriety by the accused in relation to the complainant in this case. Further, it is submitted that I need to be satisfied that the complainant is not indulging in fantasy or fabricating similar allegations to that of his brothers.

6. Having considered all of the arguments made by both counsel, I am satisfied that the evidence that has been led in the form of the admissions to prior sexual contact in relation to the three older brothers is strongly probative of the facts in issue, that is, the alleged sexual conduct of the accused against the complainant and that probative value substantively outweighs the prejudicial effect.

7. Further, I am satisfied that I can keep the permissible and impermissible uses separate.

   Prosecution Evidence

   Complainant’s Evidence

8. The complainant was born on 16 April 1998.[9] He has six brothers and one sister. He has three older brothers, CS, GS and AS. His younger siblings are BS, BS and HS. His mother’s name is JJ. The house at which he first remembers living is Hume Street, Salisbury. He lived there with his mother and siblings. Just his family lived at Hume Street. JS thought he was about four years of age when he started living there.  He started school at Salisbury North West Primary School just before he turned five. His teacher when he first started was Stephanie Perkins. He had her for reception, year one and he was pretty sure for year two also. He moved with his mother and siblings from the Hume Street premises to Horwood Road in Salisbury just before he started school. His sister OS was born when they were living at the Horwood Road address. The accused moved into a caravan in the backyard of the Horwood Road premises.[10] In cross-examination, the complainant agreed the caravan was in the backyard at Horwood Road for as long as he could remember. He was pretty sure the caravan came at around the same time that the accused came to stay.[11]

   [9]    TT Page 9 line 13.

   [10]   TT Page 11 line 34.

   [11]   TT Page 31 lines 37-8.

9. To the complainant’s knowledge, the accused was a family friend of his mother. The complainant first met the accused when he moved in with the family. He might have met him before this time, but could not remember.

10. JS described the caravan as an older-style of caravan, of a 1980’s or 90’s build. The exterior of the caravan was rounded above the front and back windows, then flat with the face of the windows at the front and the back. The windows opened outwards.  Inside the caravan, there was a single bed in the back. There was a bench-type seat, with two seats and a table in the centre, with the accused’s personal effects. There was a television on a cupboard on the right-hand side wall as you came into the caravan from the door.[12]

    [12]   TT Page 13 lines 25-7.

11. The complainant slept in the house in a room with his brother, BS. The accused stayed in the caravan. The complainant went into the accused’s caravan two or maybe three times. The complainant said he “was enticed” to go inside.[13] When the complainant went into the caravan, the accused was inside. The first time the complainant went inside, the accused asked him if he wanted to go into the caravan to play Xbox.[14] The complainant would have been roughly five years old. It was during the morning, between breakfast and lunch. 

    [13]   TT Page 14 line 1.

    [14]   TT Page 14 lines 14-5.

12. JS went into the caravan and played Xbox. There was no one else in the caravan. The complainant sat at the foot of the bed, which he described as sort of in the centre of caravan. After the accused came in and shut the door, he sat on the bed on the complainant’s left-hand side. JS was playing Grand Theft Auto: San Andreas on the accused’s Xbox. Whilst he was sitting and playing, the accused lent over with his right hand and started caressing the top part of JS’ leg. That went on for a minute or two.  The accused then slid his hand on to JS’ inner leg and onto his genitals. The accused started rubbing the complainant’s genitals for a few minutes on top of the complainant’s pants.[15] JS clarified the accused was touching his penis.[16] JS was wearing blue track pants, but could not remember which t-shirt. The accused did not say anything to JS while touching him on the bed.[17]

    [15]   TT Page 15 lines 14-6.

    [16]   TT Page 16 line 26.

    [17]   TT Page 15 lines 32-3.

13. At first, the accused rubbed on top of JS’ pants. The accused then had JS stand up and pull his pants and underwear down to just above his knees. After the accused took JS’ pants down and sat back down, he started groping the complainant. One of the things he said to JS, in a soft but stern tone, was that if JS told tell anyone, the accused would kill the complainant, his mum and his siblings.[18] JS did not say anything. He froze.

    [18]   TT Page 16 lines 1-3.

14. After JS sat back down on the bed, the accused was again on JS’ left-hand side. The accused put his right hand down on the bed between JS and himself. The accused lent over with his left hand and started touching JS’ balls and playing with the complainant’s penis.[19] This would have gone on for five to ten minutes. The accused just used his left hand.  He said to JS: “Keep playing your game”.[20] JS was still sitting on the end of the bed. The accused was in the same sort of “leaning over position”, with his right hand down on the bed, to brace himself. The accused then lent down and started sucking the complainant’s penis.[21] He did not say anything before he started sucking. He just took the Xbox controller from JS and made JS lean back, not by pushing him, but by taking the complainant’s arm so that JS put his hands behind himself to brace himself up. The accused sucked his penis for a couple of minutes.[22]

    [19]   TT Page 16 lines 18-9.

    [20]   TT Page 16-7.

    [21]   TT Page 17 line 20.

    [22]   TT Page 17 line 36.

15. The accused was interrupted by a knock on the door. JS thought it was CS who had knocked. JS got up, pulled his pants up and ran out to see his mum. After he pulled his pants up, the accused reinforced with a stronger stern voice that if the complainant told anyone, the accused would kill JS, his mother and his brothers.[23] The complainant gave evidence that the door to the caravan was closed and locked. The door automatically dead locked when shut, whereby it could only be opened with the key from the outside.[24]

    [23]   TT Page 18 lines 10-2.

    [24]   TT Page 18 lines 21, 23, 26-8.

16. There was one other occasion that the accused touched the complainant. This also occurred in the caravan. It occurred after the incident during which the accused had fellated the complainant. It occurred during the day, within a week or two of the first incident.[25] On this occasion, the complainant was playing outside and the accused told him to go into the caravan and play Xbox.  No one else came into the caravan with JS. Once in the caravan, the door was shut. JS played Xbox. He was sitting roughly in the same position as the last time, at the foot of the bed. The accused walked past JS and sat down on JS’ left.[26] After the accused sat down, and whilst the complainant was playing Xbox, the accused grabbed JS’ left hand off the Xbox controller and slid it onto the accused’s crotch.[27] The accused was wearing dark or grey coloured slacks. He could not remember the accused’s t-shirt.

    [25]   TT Page 19 lines 4, 6.

    [26]   TT Page 19 line 24.

    [27]   TT Page 19 lines 26-8.

17. The accused wrapped his hand over JS’ and forced the complainant to grab the shaft of the accused’s penis.[28] JS’ hand was on top of the accused’s clothing.[29] His hand was in that position for a few minutes. The accused was forcing JS to move his hand up and down the accused’s penis.[30] The accused did not say anything while it was happening. JS’ mum yelled out from inside. JS immediately stood up and said he had to go because his mum wanted him. The accused again reinforced to JS, not aggressively but with a very stern voice, that he would murder JS’ mum, JS and his brothers if JS told anyone.[31] JS ran out and shut the door behind him.

    [28]   TT Page 19 lines 37-8.

    [29]   TT Page 20 line 2.

    [30]   TT Page 20 line 10.

    [31]   TT Page 20 lines 24-7.

18. The first time the complainant told anyone about what had happened with the accused, he was around the age of 13 or 14. He told his ex-partner but did not relay any of the details of what happened. Two years ago, he reported the matter to police. This was the first time he spoke about the full details of what had happened.[32] The complainant clarified in cross-examination that he did not tell his girlfriend who had touched him. He told her it was somebody who had lived with them when they were younger, but did not say his name. 

    [32]   TT Page 21 lines 12-3.

19. The complainant has spoken to his brothers, but did not mention anything other than he had been assaulted when he was younger. He never went into the full details with anyone. He told his brother CS that he was going to the police but did not go into the details.[33] After going to the police, JS told his brothers “he was going through the process”, but never told anyone other than police in such detail about what actually happened.

    [33]   TT Page 22 lines 18-9.

20. The complainant said he went to police in 2016 because, while he had made peace with what had happened, the accused was being released and the complainant did not want to see or give the accused the opportunity to do the same thing to anyone else.[34]  

    [34]   TT Page 22 lines 31-5.

21. The complainant said he is aware that something happened to his brothers but does not know any detail.[35]

    [35]   TT Page 22 lines 37-8.

22. In cross-examination, the complainant said that when the accused stayed in the caravan, the complainant knew his name was “Ray” but did not know his surname. He did not find it out when his mother went to court in relation to his brothers’ matters. He found out years later.[36] When JS was seven or eight, he knew his mother went to court but was not sure why. It was later that he pieced together that it was about the accused. The complainant agreed he asked his mother why she was going to court. She told him “to leave it alone” and did not tell him it was about the accused.[37]

    [36]   TT Page 24 lines 1-3.

    [37]   TT Page 24 line 23.

23. The complainant was not sure whether he had turned six years old when he was playing Xbox in the accused’s caravan. He agreed the game he was playing, “Grand Theft Auto: San Andreas”, is an action adventure video game and that it follows a male character who is trying to unravel the truth behind his mother’s murder. He said the player can do whatever they want and agreed this includes pointing guns, shooting people and stealing cars, and that at different stages in the game the police, FBI and the military can respond. The complainant agreed it is a mature age game for somebody that was not his age. 

24. When asked whether he played the game on Xbox when he was much older than five or six, the complainant said he has played it all throughout the years.[38] He said he was pretty sure that that was the game he was playing with the accused in the caravan.[39] He was not sure which year of school this was. He just remembered it was around the time he was in reception or year one. He agreed he played the game in his later primary and early secondary years. When it was suggested that he did not play that game when he was five or six years old, the complainant said he was pretty “god damn” young when he was playing. He could not recall exactly when, but it was around the time of this “stuff happening”.[40] He agreed he has a specific memory of playing the game when he was in the caravan with the accused and was “hundred-per-cent sure about that”.[41] He disagreed that a five-year-old would struggle to navigate the game and said he had played games from a very young age.

    [38]   TT Page 26 lines 32-3.

    [39]   TT Page 27 line 20.

    [40]   TT Page 28 lines 21-8.

    [41]   TT Page 28 line 37.

25. When it was suggested that the game had not come out when the complainant was five years old, JS said it was around that sort of time and he distinctly remembered playing that game.[42] The complainant disagreed he did not play any Xbox games in the caravan with the accused. JS was not sure whether the accused played Xbox or PlayStation games with his brothers in the house. He was not sure whether the accused played games with them.

    [42]   TT Page 29 lines 16-7.

26. He did not recall playing any other game in the caravan. When asked whether it was possible that he was older than five or six when these things happened, he said he was trying to remember around birthdays and the teacher he had at the time. He had Stephanie Perkins for three years.[43] He could not remember the exact time period, month, or year. He just remembered it was within that time period.

    [43]   TT Page 44 lines 27-9.

27. JS disagreed that he was never in the caravan alone with the accused.[44] He disagreed that the accused never touched him in a sexual way in the caravan or anywhere else.[45]

    [44]   TT Page 31 line 6.

    [45]   TT Page 31 line 9.

28. He disagreed that the accused did not threaten to kill him.[46] He had a clear memory of the accused saying that: “If you tell anyone, I will kill your mother —youse, your mother and your brothers”. He disagreed with the suggestion that he did not tell police in 2016 that the accused had threatened to kill him personally. It was put to the complainant that he had told police: “that after the first touching by Ray he said ‘Don’t tell anyone about this or I'll kill your mum and your brothers’.” The complainant said that that was meant to be “you, your mum and your brothers”. He said while that may be that is what is in the statement, the first time he had a chance to actually read through it was on the Friday before the trial. He was nervous about the meeting at that point in time. He agreed that he read the statement after he signed it in April 2016, but had “missed that”. He was nervous when he gave the statement and also nervous when he read it on Friday. Each time he has read it, he has not read it with a calm, level head,[47] and was very emotional, so did not properly read every single word.[48] He did not notice that was missing. He disagreed that he did not tell police when he spoke about the accused sucking his penis that the accused threatened to kill him.[49] The police officer may have misheard him or not taken it down. He distinctly remembered saying it.

    [46]   TT Page 32 line 2.

    [47]   TT Page 34 lines 2-9.

    [48]   TT Page 37 lines 2-10.

    [49]   TT Page 35.

29. The next time the complainant went into the caravan after the accused had threatened him, JS did not go back in “willingly”. He said he was “enticed”, so it was not “much of a choice the second time”. He later said he was not asked to go in; he was “told”.[50] He agreed that this incident could have been two to three days after the first.[51] He knew it was a short time between incidents. It was suggested that if the accused had threatened him, his mother and brothers two or three days, or a week earlier, the complainant would have run back to the house and not gone back to the caravan. The complainant responded: “I did not run away. I was told to go back in there. I'm not going to piss somebody off who is threatening the life of my family, am I?”[52]

    [50]   TT Page 40 lines 24-5.

    [51]   TT Page 38 lines 7-8.

    [52]   TT Page 41 lines 13-6.

30. The complainant told police in 2016 that the accused sat on his right-hand side the first time he touched JS’ penis. The complainant disagreed that his memory has changed in the last two years ago, but said it has “cleared up”.[53] He has thought more about the incident since that time. He agreed that when the accused sucked his penis, he told police that the accused was on his right side.[54] He again disagreed his memory has “changed”, but has “cleared up”.

    [53]   TT Page 39 lines 1-2.

    [54]   TT Page 39 line 37.

31. The complainant did not know how old he was when he found out his brothers spoke to police about the accused. He agreed that it was whilst he was still in primary school.[55] He knew there were court proceedings for offences relating to his brothers. He knew that someone had been charged. The complainant did not know the exact details. He denied that he knew his mother went to court over the accused.[56] She did not mention specific names. She may have said “Ray” but could not recall. He denied that while he was in primary school he knew that his brothers had made allegations about Ray and that those allegations had gone to police and then to court.[57] He disagreed he spoke to his brothers about it while he was still at primary school and they confirmed that Ray had abused them.[58]

    [55]   TT Page 41 line 27.

    [56]   TT Page 42 line 3.

    [57]   TT Page 42 line 21.

    [58]   TT Page 42 line 30.

32. The complainant is still in contact with his brother CS and occasionally with GS, but not with AS. JS found out that they received some compensation because of what the accused did to them and that the amount was in the thousands of dollars. He found out eight years ago, when he was in high school, and well before he went to police.[59] JS disagreed he has made up any of these stories for money.[60]

    [59]   TT Page 43 line 31.

    [60]   TT Page 43 line 34.

    Complainant’s Mother’s Evidence

1. Ms J, previously Ms S, has eight children. The complainant is one of her sons. She has three sons older than the complainant: CS, aged 26 years, GS, aged 25 years, and AS who they have always called JS and who is aged 24 years. The complainant is four years younger than AS. Ms J has four other children: BS, aged 18, BS, aged 16, HS, aged 14, and OS, aged 12.

2. When the complainant started school, the family lived on Hume Street in Salisbury North.[61] The complainant would have been five when he started school at Salisbury North West Primary School. She clarified that the complainant’s birthday is in April and that he started school the following January, after he turned five. Before that, he went to kindergarten at Salisbury North West Primary School when he was aged four years.

   [61]   TT Page 47 lines 16, 18.

3. Before Hume Street, the family lived at Motcombe Street for nine months. She thought that the complainant was still in kindergarten when they moved. They lived at Hume Street for about two years. Mr Mountford also lived at Hume Street with her and her children.[62] She met the accused when she was living at Elizabeth South. She only had three children at that time. When she moved to Hume Street initially it was just Ms J and her children that lived there.[63]

   [62]   TT Page 48 line 20

   [63]   TT Page 48 line 34.

4. In terms of the accused’s living arrangements at Hume Street, she had a caravan in her backyard.[64] Mr Mountford lived in the caravan. Ms J and the children stayed in the house. Ms J thought that Mr Mountford lived at the Hume Street address for 12 months. In terms of how the accused came to live with her and her family, Ms J said she had gone to pick up his stepdaughter from Victoria and the accused watched her children. The accused ended up living with her and her family as his wife went back to live with his stepdaughter in Victoria.[65] The accused then told Ms J that he had cancer and was dying, and needed somewhere to stay. She felt sorry for him.[66] Ms J clarified in cross-examination that she got the caravan because the accused had said he was dying and sick, that his wife was going and that he had nowhere to go.[67]

   [64]   TT Page 48 line 37

   [65]   TT Page 49 lines 16-22.

   [66]   TT Page 49 lines 24-6.

   [67]   TT Page 60 lines 24-6.

5. After living at Hume Street, she and her children moved to Horwood Road in Salisbury North. The accused moved with them.[68] The caravan was also moved to that premises. The caravan was situated in the backyard. The accused slept in the caravan. She and the children slept in the house. The children slept at the front and she slept at the back. The family lived at the Horwood Road address for “about two, three years”. She thought that the accused lived there for about a year and a half, and then went back to Melbourne. The complainant would have only been four years old when they moved to Horwood Road.[69]

   [68]   TT Page 49 line 31.

   [69]   TT Page 50 line 23.

6. Ms J owned the caravan.[70] All of her children went into the caravan with the accused. She had gone into the caravan and was familiar with its layout.[71] There were two bunkbeds, which she described as two single beds on top of each other, and a double bed at the end. There was an Xbox and another game system. She did not have an Xbox at that time. Her children had a Nintendo 64. She said the complainant did go into the caravan to play Xbox and that all the children had gone into the caravan one at a time to play the Xbox.[72]

   [70]   TT Page 51 line 18.

   [71]   TT Page 51 line 25.

   [72]   TT Page 52 line 3.

7. Ms J told the accused that if the children were in the caravan, the door was to be open, and that those were the rules in her house. She told the children, “Don’t shut the door, mum says no”. This rule was not complied with.[73] There were many times the complainant was in the caravan with the door shut.[74] Ms J was not sure of the name of the Xbox games Mr Mountford had in the caravan, but said they would have been “shooting” or “racing car” games.

   [73]   TT Page 52 line 17.

   [74]   TT Page 52 line 38.

8. Ms J had a discussion with the complainant, AS, GS and CS about whether the accused had done anything to them. It was around Easter time, although she was not sure which Easter. The accused had come back from Victoria, and Ms J’s son AS swore at him and carried on. She asked AS what had happened. AS disclosed to her what had been going on. AS was in his room on his own when he disclosed this; the complainant was not in the room at that time.[75] AS was aged nine at the time and the complainant is four years younger than AS. Later that night, when Mr Mountford had left the premises, Ms J gathered all four boys together outside on the front verandah and asked what was going on. The younger children would have been inside watching the TV. Each of the complainant’s three older brothers disclosed, while the complainant was there, that “Ray had been touching their private parts”.[76] Each said it separately. They were not talking between themselves, they were telling Ms J. The complainant was there throughout the whole of the conversation. He did not say anything.[77]

   [75]   TT Page 54 line 24.

   [76]   TT Page 55 lines 12-3.

   [77]   TT Page 57 line 1.

9. The occasions the complainant was in the caravan with the door shut were in the day and at night. Ms J was not sure how many times this occurred. The complainant did not really go into the caravan at Hume Street; it was when they lived at Horwood Street.[78] The complainant would have been between five and eight years old. Mr Mountford probably stayed in the caravan at the two addresses between two-and-a-half, three years.

   [78]   TT Page 57 lines 24-5.

10. In cross-examination, Ms J said the accused sometimes came into the house when he was living in the caravan. CS, GS and AS sometimes played Nintendo when Mr Mountford was in the lounge room. The complainant was aged about five at the time and was often in the lounge room with the older boys.[79] The complainant was pretty interested in Nintendo games because the older boys taught him how to play. He had been playing since he was about two years old. She was not sure exactly when the accused left the Horwood Road premises. He lived with the family until her son BS was about two years old. BS was born on 19 November 2001. The accused was living with them when she was pregnant with her son HS, who was born on 7 February 2004.[80] When HS was born, the accused was coming and going from the premises. Ms J thought the last time the accused left Horwood Road was in the middle of 2004.[81] After he left, the three older boys went into the caravan and “gutted” and “destroyed” it.

    [79]   TT Page 58 lines 13, 15.

    [80]   TT Page 59 line 29.

    [81]   TT Page 60 line 14.

11. When it was suggested that the complainant never went into the caravan on his own, Ms J said, “Ray always wanted one at a time. He never wanted all four in there together.” When it was suggested that she did not tell this to police, she said they never asked her and she did not remember or think of it back then.[82] It is something that has since come to her mind. When asked whether this was because of the complainant’s allegations, Ms J said she did not know what those allegations are as she has not spoken to the complainant in years.

    [82]   TT Page 61 lines 6-7, 21.

12. She was not sure whether the complainant was five years old when he went in the caravan with the door shut. He might have just started school. Ms J was concerned that her five-year-old son was in the caravan on many occasions with the door locked. She said that she would go out there, bash on the door, get him and bring her in. She agreed that she did not tell police this and said it was something she has probably overlooked. She never saw the accused do anything sexual to the children.[83]

    [83]   TT Page 62 line 35.

13. After her children disclosed the allegations against the accused, she went to the police and then to court in relation to the accused in about 2007, 2008. The complainant was about nine or 10 years old at that time. Ms J disagreed she told the complainant why she was going to court. She never said anything about the court matters to the complainant and disagreed she told him they were in relation to the accused.[84] She agreed that the complainant was present when the three boys disclosed that the accused had touched them, so would have known what they were complaining about.[85]

    [84]   TT Page 63 line 37.

    [85]   TT Page 64 line 8.

    Evidence of Detective Jessica Kathryn Dickenson

14. Detective Dickenson is the investigating officer in this matter. After the complainant made his complaint in April 2016, Detective Dickenson spoke to the accused. There is an audio-visual recording of that interview, which was tendered.[86] A transcript of that interview was made and has been marked for identification.[87] Before Detective Dickenson’s involvement with this matter, she was made aware that the accused had previously come to attention of police.[88] Detective Dickenson was aware Mr Mountford was interviewed by Victoria Police in 2004 and by South Australia Police in 2006. Detective Dickenson made enquires of the investigating officer in Victoria. She was not able to obtain an audio-visual record of the 2004 interview, but obtained a transcript of that interview, which she edited. The edited transcript of the 2004 was tendered,[89] as was the edited audio-visual record of the 2006 interview.[90] A transcript of the 2006 interview was made and was also marked for identification.[91]

    [86]   Exhibit P2.

    [87]   MFI P3.

    [88]   TT Page 65 line 31.

    [89]   Exhibit P4.

    [90]   Exhibit P5.

    [91]   MFI P6.

15. In cross-examination, Detective Dickenson said that the 2004 interview was conducted by Constable Gavin Curtis of Victoria Police. Constable Curtis asked the accused about a number of people, including AS. In answering questions about AS, the accused made admissions about GS and CS. The accused was trying to remember the name of a fourth boy he may have mentioned to Victoria Police. Detective Dickenson was not able to say whether that boy was EB.[92] To her knowledge, the fourth boy was not the complainant.[93]

    [92]   TT Page 68 lines 28-9.

    [93]   TT Page 68 line 32.

    Record of 2016 Interview

16. Detective Dickenson conducted the interview with the accused on 3 June 2016 in the presence of Senior Constable First Class Michael Sherratt. Detective Dickenson told the accused he would be asked questions about the complainant. The accused eventually recalled the complainant was one of the two smaller boys. He said he knew the complainant but did not have much to do with him. When informed that the allegations were of a sexual nature, the accused said he did not remember having “anything to do with JS physically”,[94] only with the three older boys.

    [94] MFI P3 Page 4 [51].

17. The accused appeared to have little memory of when and how he came to live with Ms J and her children. He said it would have been around the year 2000. In terms of his living arrangements with the family, the accused explained he stayed there sometimes but thought he mostly visited them. He agreed, however, that there was a time he lived in a caravan at Ms J’s house. The accused said he knew the three boys for roughly two years, and that he lived in the caravan towards the last part of those two years. He was not sure exactly when that was.

18. The accused’s answer as to how he came to live in the caravan at Ms J’s house was difficult to understand. He said that she did not want him in the house at the time, maybe because she had a visitor. He said that they were asked to go to the caravan and that he was put in with the boys.[95] He did not remember the date. The accused thought he only stayed in the caravan overnight and said he did not think it was any more than one day.[96] As far as he could remember, it was only one occasion, but said that this may not be quite correct. Later in the interview, it seems that the accused’s memory of staying overnight in the caravan is tied to his recollection of offending against the three boys on only one night in the caravan. However, the accused explained he could be wrong and was having trouble remembering details.

    [95]   MFI P3 Page 6 [87],[89].

    [96] MFI P3 Page 6 [93].

19. The accused did not remember the complainant ever being in the caravan, nor could he remember committing any sexual offending against him.[97] He said it “would be about right” that the complainant was five or six years old around the time the alleged offending is said to have occurred. The accused agreed he was staying in the caravan at the time and that he had an Xbox and a TV in the caravan. The Xbox belonged to the accused but was for the boys to use. The accused said the Xbox game the boys played “was about a man … to do with cars and … there were a series of three or four games… GT something or rather”. He agreed it was Grand Theft Auto and said “that’s the series”.[98]

    [97]   MFI P3 Page 7 [101],[103].

    [98] MFI P3 Page 8 [119].

20. In relation to the offending alleged to have happened on the first occasion the complainant went into the caravan, the accused did not remember inviting the complainant in to play Xbox.[99] The accused did not remember sitting next to the complainant, rubbing his thigh, feeling him up, rubbing on his outer thigh and then on top of his balls and penis. He remembered doing this to the three older boys, but not to the complainant. The accused denied saying to the complainant: “don’t tell anyone about this or I’ll kill your mum and brothers”. The accused said he would not say anything like that and that it is not his character.[100]

    [99] MFI P3 Page 8 [123].

    [100] MFI P3 Page 9 [131].

21. The accused also denied the complainant proceeded to pull down his tracksuit pants and jocks to his thighs.  The accused said, “that sounds like [the complainant] was compliant” but that that never happened with him.[101] The accused said that “[a]nything with [the complainant] never happened that I remember”.[102] The accused’s explanation as to why he was specific that nothing had ever happened with the complainant was difficult to understand. He said that when he was with “the others”, he “had a direct thing in [his] mind”. He went on to say that he would not have offended against the complainant because he was far too young and he would not have been interested in him at all.[103]

    [101] MFI P3 Page 9 [133].

    [102] MFI P3 Page 10 [143].

    [103] MFI P3 Page 10 [147], [149], [151], [157].

22. The accused disagreed with the allegation that he sucked the complainant’s penis and played with his balls to the point the complainant became erect, which was interrupted by someone knocking at the caravan door. The accused’s explanation as to why this offending did not ring any bells is again difficult to understand. He seems to disagree with the allegation because when he offended against the other boys one night in the caravan no one had come to the door.[104]

    [104] MFI P3 Page 11 [163].

23. In relation to the allegation that he offended against the complainant on a second occasion two or three days later, again in the caravan, the accused disagreed that it would have happened “to [his] knowledge”. Again, the accused said he only remembered the one night with the other boys, but that he might have been wrong. The accused denied that he grabbed the complainant’s hand, put it on top of his crotch and made the complainant rub his penis up and down, over the top of the accused’s clothing, and that the accused’s penis became semi-erect. The accused’s explanation was unclear. He said he did not remember this at all and explained he could never produce an erection and only became partially erect “when [he] did a masturbation, not with him [the complainant], but with the others”.  The rest of his explanation was somewhat incoherent: 

    that only ever happened once too because after since then or being in here I can’t do anything, I am now not compliant with ah sex of any sort, I can’t medically I’m dead so we would say, this is because of my age possibly or that part of my body just doesn’t perform now, so that wouldn’t have possibly happened with [the complainant].

24. When asked whether he was referring to a condition at the time the offending is said to have occurred or at the time of the interview, the accused seemed to confuse the allegations. His explanation does little to clarify his previous answer:[105]

    it would have to be a certain stiffness for him to suck and that sort of thing anyway, it would have to be erect to some part, but it only ever used to be partially erect back then but not ah fully erect, so no I don’t remember that at all … I have no memory to do with that…

    [105] MFI P3 Page 13 [179], [181].

    General Observations

25. The accused makes clear throughout the interview that he was having difficulty remembering and in one instance appears to confuse some of the allegations, as outlined above. When compared to the earlier records of interview, particularly Exhibit P5, there is a stark contrast with respect to the accused’s physical presentation and cognitive functioning, which appear to have deteriorated significantly by the time the interview was conducted in 2016.

26. The answers the accused gives to Detective Dickenson cannot, in my view, be taken as a bare denial of the allegations. The accused repeatedly answered in terms of not remembering the offending, not having any memory of the offending or not having offended against the complainant “to [his] knowledge”. The accused appears to offer explanations to fill in the gaps, so to speak, seeming to reason why he would not have offended against the complainant as alleged, rather than why he did not offend against him. For example, the accused explains that the complainant, who was five or six years old at the time, was far too young, so he was not interested in the complainant at all and would not have done anything like what is alleged. Further, the accused makes clear several times that he remembered offending against the three older boys, but had no memory of offending against the complainant. This appears to be another basis upon which the accused rationalises that the offending would not have occurred. The accused’s denial of the alleged offending that occurred the first time the complainant was in the caravan because no one had come to the door when he offended against the other boys is particularly troubling. Similarly troubling is the accused’s answer that he did not remember making the complainant rub his penis up and down, on top of his clothing, but explained the offending would not have occurred because of his difficulty producing an erection at the time; that he could only become partially erect and that was when he did a masturbation; and that he did a masturbation with the others, but not the complainant. As I have already noted, the accused seemed generally confused about this allegation. 

    2004 Record of Interview – Exhibit P4

    Sexual interest in the brothers

27. The accused knew the three boys for approximately three years and lived with them for three months. He met them in about 2000.[106] Their mother, Ms J, was a friend of his daughter. He described the boys’ mother as “a very vicious woman” and that her primary concern was making money.[107] He disclosed that Ms J really hurt her children physically, “laying into [them] with a two by four”.[108] He described seeing the eldest boy laid up in his bedroom, cowering in a foetal position with bruises all over his body. The accused felt that “someone had to do something” about the mother’s abuse and this was when he “sort of took … an interest in the family”.[109] The accused explained that his love for and obsession with the boys grew. He admitted that he “had a problem with those three boys.”[110] The accused perceived the abuse and neglect by their mother may have drawn the boys to him:[111]

    The three lads drew to me like magnets.  I suppose because of the abuse they used to get from their mother, so they were going from one abuse to another here and my overpowering love for these lads, it grew and became an obsession … I became very obsessive to the point that I – when I left, I had to leave because I could feel myself going overboard.

    [106] Exhibit P4 Pages 44-5.

    [107] Exhibit P4 Page 46.

    [108] Exhibit P4 Page 45.

    [109] Ibid.

    [110] Exhibit P4 Page 49.

    [111] Exhibit P4 Page 48.

1. The accused admitted to touching the three boys. He said it would have been quite a while after he met the boys that he started touching them inappropriately; it was more or less during the last year he associated with them, and probably occurred mostly in the last three months while he was staying in the caravan at Ms J’s house.[112] He did bathe with the boys and agreed he probably would have touched them inappropriately in the bath; he said that that touching “wasn’t very much, it would’ve just been again a masturbation thing.”[113] The accused did not refute what the boys had alleged against him and just agreed to whatever the boys had said.[114] He believed it was wrong to touch them as he did and did not think there was any excuse.[115]

   Abuse to each child

   [112] Exhibit P4 Pages 47-9.

   [113] Exhibit P4 Pages 60-1.

   [114] Exhibit P4 Pages 45, 55.

   [115] Exhibit P4 Page 45.

   AS

2. The accused described AS as “a very affectionate boy”.[116] He admitted touching AS on the penis and agreed that he would fondle AS’ penis.[117] He later agreed that this escalated to masturbating AS.[118] The accused stopped touching AS when he indicated that he did not like it.[119] The accused started touching AS before he lived with the family (“a lot earlier”). The accused said that when he visited the house, AS would always sit on his knee and would always draw the accused’s hands “to the middle part of him”.[120] He said that his “hands would be over here covering him and so, [his] thumbs were just playing”. At the beginning, the accused touched AS on the outside of his pants, but later on did reach in to actually touch AS’ penis.[121] The accused said that, in the beginning, he would have touched AS quite a few times, but did not remember how many.[122] He also was not sure how many times he masturbated AS.[123] At the time he interfered with AS, AS would have been between seven and eight-years-old.[124]

   [116] Exhibit P4 Page 48.

   [117] Exhibit P4 Page 50.

   [118] Ibid.

   [119] Exhibit P4 Page 48.

   [120] Exhibit P4 Page 50.

   [121] Exhibit P4 Pages 49, 50.

   [122] Exhibit P4 Page 48.

   [123] Exhibit P4 Page 50.

   [124] Ibid.

   GS

3. The accused went on to describe how he interfered with GS. GS, he said, was “another story”.[125] He described GS as “the most sexually active … of the three of them”.[126] The accused explained that the boys used to visit his house at Elizabeth, before the accused stayed at the caravan.[127] This was more or less at the time his wife left to visit Melbourne.[128] The accused said that the two boys (it appears he was referring to GS and AS) “used to get carried away with each other and they would sort of come at you in the bedroom … they more or less bounced all over the bed, they’d go have a bath and … they’d come out naked and I’d be running around telling them they had to get themselves dressed”.[129] He went on to say that both GS and AS used to play a lot with each other and that they would do “silly things”, like try to have intercourse in front of the accused. The accused said, “[t]hey were teasing” and also that he “took advantage of the situation … by touching them. It was mostly to do with touching or masturbation.”[130] The accused admitted to masturbating GS when GS was about nine or 10 years old.[131] He said this probably would have occurred a fair few times, but could not remember how many.[132]

   [125] Exhibit P4 Page 51.

   [126] Ibid.

   [127] Ibid.

   [128] Exhibit P4 Page 53.

   [129] Exhibit P4 Page 51.

   [130] Exhibit P4 Page 53.

   [131] Exhibit P4 Page 54.

   [132] Exhibit P4 Page 54.

   CS

4. CS was the only one of the boys who could ejaculate. The accused did not start interfering with him till much later (“He was the last situation”).[133] He said that it was only a few times and this was more or less “on request”. He described that CS would come up and sort of rub himself against the accused. The accused explained that all the boys, prior to the accused knowing them, apparently had great problems at school. CS used to smash and belt things, and he battled more with his mother than any of the three.[134] The accused said that he spent a lot of time trying to calm CS down.[135] The accused went on to say, in relation to CS:

   afraid the love that I had was what went overboard. I took my love into the bedroom…[136]

   [133] Ibid.

   [134] Ibid.

   [135] Ibid.

   [136] Exhibit P4 Page 54-5.

5. The accused mainly masturbated CS. It probably happened about half a dozen times.[137] CS would have been 12 or 13 years old.[138] 

   2006 Record of Interview – Exhibit P5

   [137] Exhibit P4 Page 55.

   [138] Exhibit P4 Page 54.

   Sexual interest in the brothers

6. Similar to his interview with Victoria Police, the accused told South Australia Police in 2006 that “whatever [the boys’] statements are in most part would be correct.”[139] In his 2006 interview, the accused admitted that he “was in love with these three kids thoroughly and they were the bees’ knees and end of all things … I lost it period”.[140] The accused said several times in the interview that he “loved these boys”.[141] He also said that he “was emotionally involved with them”.[142]

   [139] MFI P6 Page 55-6.

   [140] MFI P6 Page 54. The accused repeated later in the interview that he "lost it" with the three boys at Page 65. 

   [141] MFI P6 Page 55-6, 63.

   [142] MFI P6 Page 55-6.

7. The accused described the boys’ mother Ms J as having done “a lot of cruel things to these boys” and that his “relationship developed … with them to a degree where they wanted to be with [him] most of the time. They didn’t want to be at home …”[143] Not only was this proffered as an explanation for the boys’ behaviour, but, consistent with the accused’s admissions in the 2004 record of interview, he explained that his love for and emotional involvement with the boys arose out of their mother’s alleged abuse and neglect:[144]

   because their mother had done things to them … my love for them grew and I just did anything they want to do I would do … I became very possessive of them so much so that I felt they were mine in a way … my affection for these boys grew and grew and ... I’d do anything they asked…

   [143] MFI P6 Page 55-6.

   [144] MFI P6 Page 55-6.

8. In terms of being possessive, the accused described an example of how he would effectively side with the boys over their mother. For example, he said that Ms J would regularly feed the boys fish and chips, but would feed herself steak.  When she asked the accused what he would like to eat, he would tell Ms J: “I’ll eat whatever the boys eat”. The accused said he could not handle when the boys were mistreated, and would walk out. He also described how Ms J would embarrass the children at school and how he would take the children to school and speak to their teachers, taking an interest in their curriculum and school work.[145]  

   [145] MFI P6 Page 56, 62.

9. As in the 2004 interview, the accused again described the three boys as “very promiscuous”. He went on: [146]

   everything they would talk about was sexual … They used to play, they used to do sexual things together, the two boys, not so much the eldest one, but the two boys certainly used to play about and frolic around naked sometimes and … all that sort of thing …

   [146] MFI P6 Page 55-6.

10. During the six months prior to going to Victoria, the accused stayed in the caravan. It was at this time that GS and AS “started prancing around the house naked”. The accused again suggested that the boys exhibited sexualised behaviour, which the accused put down to their mother, he said that Ms J would have her boyfriends over and “they [the boys] used to go and watch what happened.”  Their mother also “had a lot of toys”.  The accused said that the boys: “used to go and bring them out to me …. I would think that’s maybe how their interests started … and I didn’t help.”[147]

    [147] MFI P6 Page 60.

11. When asked where Ms J was when the accused was offending against the boys, the accused replied “I don’t want to speak ill of … everybody but she would be in the kitchen or … over the street, and she’d just leave the whole six children while she would go visiting”.[148] The accused said that the boys would insist on being with him most of the time and, as there was not much room in the house, the “three of them bunked in one room”.[149] The accused said Ms J had said to him: “you can do what you like, but if I find you doing it that’s a different thing”.[150] The accused also said that Ms J never stopped her sons sleeping in the caravan but that “she should have stopped it some time ago”.[151] He then commented: “It’s also a funny thing to let you sleep in the same room or in the same caravan in this case, or even the same bed sometimes … so I had to double up once or twice”.[152]

    [148] Ibid.

    [149] Ibid.

    [150] MFI P6 Page 60.

    [151] MFI P6 Page 60-1.

    [152] MFI P6 Page 60.

12. The accused agreed that the offending occurred from around 2000 and stopped before he came to Victoria, when the family was living “at the new address”. The accused relayed that he had told CS, “this has got to stop, it can’t go on anymore”.[153] He said it was at this time that he “realised [his] big mistakes” and that he “was pretty devastated”.[154] He said he told all the boys: “I apologise to each and every one … I’m very sorry for the things that I have done, and I’m even more sorry for the fact that they way you’re living now but I must go because none of this can happen anymore it’s got to stop.”[155] He said “it was a religious thing” that made him stop,[156] but also said he had gotten into a big argument with Ms J about the way she was feeding the children. He “let fly” and decided it was better that he leave.[157] He made it clear that it was his decision to leave and not Ms J’s, and that she had left the decision to him. The accused said Ms J was not going to “send [him] away too quickly” as she was making money from him.[158] This is a similar allegation to those raised by the accused in his 2004 interview with police to the effect that Ms J’s main concern was to make money.

    [153] MFI P6 Page 63.

    [154] MFI P6 Page 63.

    [155] MFI P6 Page 65.

    [156] MFI P6 Page 65.

    [157] MFI P6 Page 63.

    [158] Ibid.

    AS

13. The accused described AS as “very friendly”.[159] He used to sit on the accused’s knee and the accused would keep his hands on the top part of AS’ tummy. AS would have some sort of cover, like a blanket, which he put it over his knee. He would wriggle around until the accused’s hand was sitting where AS’ penis was. The accused said, “It was always erect, all the time”.[160] At the beginning, the accused did not do “too much to him”, but later on did touch AS. He agreed it started around 2001.[161] AS was seven years old at that stage. He thought it was when the family was living at Penfold Road, Elizabeth South. He did not do much to AS at that stage; AS just sat on the accused’s knee a lot. The accused said it was when they moved to the address at Motcombe Road, Salisbury North.[162] He described it as: “basic touching … he would sit on my knee, his little penis would be sitting up like, so I’d just touch it that’s all … no masturbation.”[163] AS was dressed when this occurred. The accused agreed he would have put his hands in AS’ shorts.[164] The accused said that he did not do anything else to him. He would have touched AS a few times, but he was not sure how many. He was not sure whether it was more than 10 times, and said it may not have been.

    [159] MFI P6 Page 53.

    [160] MFI P6 Page 54.

    [161] MFI P6 Page 54 [548]–[549].

    [162] MFI P6 Page 57.

    [163] MFI P6 Page 57.

    [164] MFI P6 Page 58.

    GS

14. The accused also admitted to interfering with GS and CS, but that that did not happen until much later.[165] GS would have been eight years old at the time. GS, the accused said, was “a different story and different person”; he was “the most promiscuous” of all the boys and also “the most responsive” (the accused did not explain what this meant).[166] The accused said that GS was the boy he was drawn to the most.[167] The accused said that the boys used to play on the floor a lot, and the three boys would have arguments and “a tussle and a bit of a bite”. They would invite the accused to join in and would get him on the floor.  The accused went on:[168]

    then they used to lay on top of you, or he [GS] did mostly and I thought nothing of it then, but he was looking for something obviously at that stage but he used to lay on top of you and sort of pretended, beat your arms or whatever.  But he used to work himself up and down you and I … didn’t give it much thought then until later, and that’s how that sort of started with him.

    [165] MFI P6 Page 54.

    [166] MFI P6 Page 58.

    [167] MFI P6 Page 60.

    [168] MFI P6 Page 59.

15. The accused admitted to masturbating GS when GS was nine years old. GS did not ejaculate. The accused agreed that he then masturbated himself. This mainly occurred at the Motcombe Road address.[169] The accused was not sure how many times it happened but agreed it was a few.[170]

    [169] MFI P6 Page 59.

    [170] MFI P6 Page 60.

    CS

16. CS would have been 10 or 11 years old at the time the accused interfered with him.[171] The accused described one occasion where CS sat next to him, grabbed the accused’s hand and put it on his penis. At that stage, the accused determined he was “not going to have this again”. On that occasion, he went to Ms J and told her what CS had done. Ms J responded by pulling CS into the kitchen and “smash[ing] him”. The accused later apologised to CS and said that it was his fault, after which time the accused’s “close relationship” with CS started.[172] Ms J would allegedly hit CS and the accused “couldn’t stand the way she was treating him.” The accused admitted to touching CS, which he described as “straight out masturbation”. CS did ejaculate quite a few times that the accused masturbated him.[173] The accused masturbated as well. CS saw the accused do this, as he had also done in front of GS.[174] The touching happened at the second and last addresses. The accused said he started at Hume Street and Horwood Road.[175] When he interfered with CS, “[i]t was CS’ idea in this case”.[176] He said it did not happen all the time, “just when [CS] was in the mood … they apart from [GS], they have to be in the mood for it.” The accused said that “all that” really happened in the caravan.[177]

    [171] MFI P6 Pages 54, 61.

    [172] MFI P6 Page 61.

    [173] "did ejaculate" is incorrectly transcribed as "did it definitely".

    [174] MFI P6 Page 61.

    [175] MFI P6 Page 62.

    [176] Ibid.

    [177] Ibid.

    Agreed Facts

17. A statement of agreed facts was tendered pursuant to s 34 of the Evidence Act 1929 (SA).[178] A further statement of agreed facts was tendered at the close of the prosecution case.[179] As Exhibit P1A consolidates the agreed facts contained in Exhibit P1 and several other agreed facts, it is convenient to refer only to Exhibit P1A. The agreed facts are as follows:

    [178] Exhibit P1.

    [179] Exhibit P1A. 

    DOB

    1.The complainant’s date of birth is 16 April 1998.

    2.The complainant’s siblings and their dates of birth are: [CS] (28/2/92), [GS] (7/5/93), [AS] (21/4/94), [BS] (23/2/00), [BS] (19/11/01), [HS] (7/2/04) and [OS] (1/11/05).

    School records

    3.The complainant attended Salisbury North West Primary School from 2003 (reception) until 2006 (year 3).  His teacher in Year 1 in 2004 was Stephanie Perkins.

    4.The complainant attended Elizabeth Park Primary School from 18^th May 2009-10^th December 2010.

    SA Housing Authority Records

    5.[Ms J] was the tenant of […] Hume Street Salisbury North from 06/10/2001-03/10/2006.

    6.[Ms J] was the tenant of […] Horwood Road Salisbury North from 04/10/2003 to 20/07/2007.

    Video game

    7.The video game “Grand Theft Auto: San Andreas” was released on 26 October 2004 for PlayStation 2, and on 7 June 2005 for Microsoft Windows and Xbox.

    Complainant’s statement

    8.In his statement to police in April 2016 the complainant told police that on three occasions the accused threatened to kill the complainant’s mother and his brothers. The complainant did not tell police that the accused threatened to kill the complainant.

    Defence Case

18. The accused did not give or call any evidence.

    Closing Addresses

19. Ms Barnes addressed on behalf of the prosecution. She dealt initially with the issue of the uncharged acts in the form of the admissions made by the accused in the previous interviews in 2004 and 2006. She then dealt with the evidence given by the complainant and recounted his evidence to the court. In respect of the allegations, she made the submission that if I accept the complainant’s evidence about each of the offences then the elements of each offence is made out.

20. She submitted that the complainant was a credible and reliable witness on the important topics. She submitted that he gave his evidence in a clear, confident and frank manner and was not evasive. She said that he gave a significant level of detail about each occasion and that he was not shaken in cross-examination. She submitted that there are some matters about which I might find he is unreliable. However, when considering this aspect I should consider the passage of time, the fact that he was a young child at the time when these incidences are said to have occurred and that in those circumstances he would have difficulties with dates, times or ages. In respect of the name of the Xbox game that he said he was playing at the time of the alleged offences, she said that it is clear that he could not have been playing that game as it had not been released at the relevant date. She submitted that it is possible that he is mistaken about how old he was when the offending occurred. She then abandoned that submission. Ms Barnes went on to submit that he may be mistaken about the specific version of the game he was playing on Xbox at that time. She drew my attention to the interview in 2016 where the accused makes admissions to having played Xbox at the house and also the evidence from the complainant’s mother.

21. In relation to any inconsistencies as to where he was living at a particular time, Ms Barnes submitted that the complainant was very definite about where the offending occurred and that it occurred at the address at Horwood Road. At that time, the accused was living with them in a caravan at that address. When the family moved to that address the complainant was five years old and they stayed there until he was eight years old.

22. She submitted that in relation to any inconsistency in the nature of the threat said to have been made by the accused that it is not an inconsistency that should concern me in terms of his creditability. He has been consistent about when the threat was made, how often it was made and the general nature of it. The inconsistency arises on whether he was threatened, not whether a threat was made.

23. Ms Barnes submitted that I could on the basis of the evidence of the complainant alone convict the accused, but that the evidence of the admissions made in the relation to sexual interest in respect of the three brothers of the complainant and the proclivity to engage in sexual activities with young boys, strengthens the case against the accused.

24. Mr Crowe made submissions on behalf of the accused. The argument he put on the s 34P issues is dealt with under that topic. He then went on to submit that there is no dispute that there was an opportunity for the accused to offend against the complainant. However, in this case there are issues that may cause me to question the complainant’s reliability and credibility.

25. The first is his assertion that at the time of the alleged offending he was playing the game Grand Theft Auto: San Andreas when that game had not been released at that stage. Although it was conceded that the complainant may simply have got the name of the game wrong, it was submitted that his unreliability as a witness comes from his response to such a situation. The witness was not prepared to concede in the slightest that his memory may have been defective in relation to the name of the game that he was playing. He was not prepared to concede an error perhaps because he had so firmly entrenched this memory.

1. In addition to this, the complainant was inconsistent in his evidence in court in respect of the threat he alleges was made to him. In his statement to the police he alleged the threat had been made in respect of his mother and his brothers, but in court he alleged that the threat was made to him, his mother and his brothers. He was also inconsistent in relation to which side of the bed the accused sat on at the time of the alleged offences and there was an inconsistency between his evidence and that of his mother’s evidence regarding his knowledge of his siblings’ allegations.

2. Mr Crowe made submissions in relation to the forensic disadvantage that arises in relation to this matter including the incapacity to check details regarding the Xbox and computer games, and to determine the matter when all witnesses would have had a better memory of events occurring at that time. Mr Crowe submitted that the accused is also disadvantaged in relation to the complainant’s specific allegations, for example, whether he was playing computer games with his older brothers, whether he was in the caravan in the company of his older brothers or alone, and the general liability of such assertions.

3. He went on to submit that in this case there could be a number of scenarios; the first is that the accused offended and in his 2016 interview has no memory of that because it did not involve a course of conduct. It could be that the complainant knowing of his brothers’ allegations has made a late complaint about this matter which is not true for reasons that are unknown to the accused. I could even conclude that it is possible or probable that the accused committed the offences but either way he would be not guilty of the offences with which he is charged.

4. It is further submitted that when I take into account the inconsistencies and the answers of the complainant in this trial, the admissions in relation to the older brothers but denials in relation to this complainant, that I may have a reasonable doubt about the complainant’s reliability and creditability and, therefore, find the accused not guilty.

   Discussion

5. The fact in issue in this case is whether the prosecution has proven beyond reasonable doubt that the accused engaged in the sexual conduct as alleged by the complainant. This conduct is alleged to have occurred when the complainant was about five to six years old. It is alleged to have occurred in a caravan at the rear of his home in which the accused was residing at that time. At that time, the complainant had three older brothers who were also residing at the home.

6. I found the complainant to be an honest and creditable witness. He gave his evidence in a straightforward manner. I accept that he is incorrect when he asserts that he was playing Grand Theft Auto: San Andreas at the time of the alleged offences. I also accept that he now firmly believes that he was playing this game at the relevant time. The complainant says that at the time of the offences occurring he was playing on an Xbox in the caravan. In an interview conducted by the police in 2016, the accused admitted that at that time he had an Xbox. That Xbox was in the caravan. He admitted that the Xbox was used by him and the boys to play games to do with cars and that there was a series of these games. He said the name was “GT something or rather”. He then went on to agree that it was a Grand Theft Auto game.

7. I accept as is asserted in the agreed facts that the video game Grand Theft Auto: San Andreas was released on 26 October 2004 for PlayStation 2 and 27 June 2005 for Microsoft Windows and Xbox. It is therefore not possible that the complainant was playing this particular game at the time of any conduct by the accused at that home.

8. In his evidence the complainant said that he played “a bunch of different games, the distinctive one that I remember was Grand Theft Auto because it was the one that I was not allowed to play”.[180] He said that he did not recall playing any other games in the caravan. I do not regard it as a significant that the complainant purports to have a memory of a different game in a series of games that had been released for Xbox. In my view, the actual game that was being played is insignificant. The fact that there was an Xbox and that he played Xbox in the caravan is more to the point.

   [180] TT Page 44 lines 5-7.

9. Nor do I consider that his inconsistency in relation to the threat that was made to be significant. The significance of this evidence is that a threat was made to him and that threat was made in an effort to obtain his silence. The exact nature of the threat in the sense as to who that threat was directed does not cause me to consider his evidence in respect of the substantive allegations to be unreliable.

10. I accept that there was some discussion in relation to the allegations made by the complainant’s brothers when he was about five years old. The exact nature of those discussions is unknown. The complainant does not recall being a party to those conversations. It is clear from the evidence of the complainant and his mother that over the years there were very few conversations in relation to allegations that had been made in the presence of the complainant. I also accept that to this day the complainant does not know the exact nature of the allegations or the admissions made by the accused in respect of his brothers. I accept that the allegations in relation to AS, GS and CS were not freely discussed within this family. I accept that Ms J did not share with the complainant the details of the court case that occurred in about 2007, 2008. It is not really clear what level of knowledge Ms J had about the allegations in relation to any of her sons in any event.

11. I accept that the complainant has been inconsistent in relation to his evidence as to which side of him the accused sat at the time when the alleged offences were occurring. I do not think that this is of any real significance.

12. I found Ms J to be a very angry and defensive witness. This is not surprising. The accused has sexually assaulted her three eldest boys and is now accused of assaulting a fourth. She has been accused of being an abusive and neglectful mother. I accept that Ms J was not very good with dates and times, and has difficulty in distinguishing between different occasions. I also accept that much of this difficulty arises as a result of having eight children between 1992 and 2005, and three of her children being sexually assaulted by the accused.

13. Nevertheless, I found her evidence to be compelling. I accept her evidence that her boys went into the caravan with the accused on many occasions. Indeed the accused admits that the three older boys went in there. I accept that they played on the accused’s Xbox in the caravan. I accept that this was the only place they played Xbox as the gaming console in the house was a Nintendo 64.

14. I accept that Ms J had a rule about the caravan door not being locked and this was rule was broken by the accused. I accept her evidence that the complainant played electronic games from a very early age having been taught by his older brothers. I accept that as one of the youngest boys he followed along with his brothers. I accept Ms J’s evidence that the accused lived in a caravan at the back of her houses on Hume Street and Horwood Road and that it was while they were living at Horwood Road that the complainant went out to the caravan.

15. I accept Ms J’s evidence that at the time her three older sons made allegations about the accused, the complainant did not make a complaint and that that conversation occurred primarily with her three older sons telling her what the accused had done to them rather than there being a general discussion in relation to it.

16. In determining the issues in this case, I have used the evidence of admissions in relation to the three older brothers as a piece of circumstantial evidence that supports the version of events given by the complainant. I am satisfied beyond reasonable doubt that the accused had a sexual interest in the boys in this family. This sexual interest manifested in him becoming very close to and possessive of the three older boys to the exclusion of their mother and thereby provided him with ample opportunity to act on his paedophilic tendencies. This tendency I find was not confined to the three older boys but ultimately extended to the complainant. The accused created opportunities to be alone with the boys in his caravan particularly when they played on the Xbox. He then committed acts of sexual abuse against the boys in the caravan and in other places. His admissions prove that he had a proclivity to act on his paedophilic desires in relation to the brothers. This is the permissible use of the evidence.

17. The impermissible use of the evidence is that it cannot be used to reason that merely because the accused has engaged in discreditable conduct he is by reason of that bare fact more likely to have committed the charged offence or offences. I have not used the evidence in this way.[181]

    [181] R v C, CA [2013] SASCFC 137, [76].

18. The accused made candid and seemingly frank admissions in relation to the complainant’s three older brothers in the interviews that occurred in 2004, 2006 and 2016. In the earlier interviews, he was not asked about the complainant. He does not refer to him at all.

19. I accept that in the 2016 interview he makes denials in relation to the complainant’s allegations. I do not accept that his denials are reasonably possibly true for the reasons that follow.[182]

    [182] Douglass v The Queen (2012) 82 ALJR 1086.

20. I do not accept that a person who was so obsessed by the three older brothers and was so highly sexualised in relation to them did not take advantage of any opportunity that presented itself in this environment to sexually assault a male child. The boys played together as young boys do in a family. They engaged with the accused in rough and tumble, and the accused took advantage of this to commit sexual offences. In an environment where these offences were occurring regularly, it is likely that they happened without any of the boys even being aware of them occurring.

21. I accept that the complainant was much younger than his brothers, but do not accept that by the time he was five or six years old the accused did not assault him. The description of events given by the accused of the length of time over which the offences against the brothers occurred coupled with the evidence of Ms J lead to a conclusion that the accused was offending over a period of years. That inevitably leads to the conclusion that, if the offending against the complainant came at the end or near the end of the time when the accused was living with the family, that he had a sexual interest in AS when he was about the same age as the complainant at the time of the complainant’s allegations.

22. I am satisfied that the accused was an opportunistic offender who committed sexual offences against these brothers when he got the chance. Further, I am satisfied that the events described by the complainant were isolated events as opposed to the sustained course of conduct against his brothers. In that event, it is possible that the accused’s focus was not upon this complainant but rather upon his brothers; and for this reason he does not now recall the isolated acts that he committed opportunistically against the complainant.

23. I accept that the threat made by the accused to the complainant was different in character to the description the accused gives of his relationships with the three older boys. There may be many reasons for this. These reasons may be much as the accused describes he was perceived to be a protector of the three older boys against their mother and threats were not necessary. Whatever the reason I do accept that he felt it was necessary to attempt to silence the complainant in these circumstances.

24. I have taken into account the significant forensic disadvantage suffered by the accused. I have also considered any possibility that the complainant may have to lie and borne in mind such motives are not always obvious nor are they always known to others. I do not accept that the complainant has fabricated his account in an effort to claim money from the accused or Criminal Injuries Compensation. There is no basis at all for any such conclusion.

25. I found the complainant to be a credible and reliable witness in respect of the allegations of sexual assaults by the accused upon him. In many respects his evidence is confirmed by that of his mother and the accused. There was a caravan in the back garden in which the accused lived. That caravan had a door that locked. He and his brothers went into that caravan from time to time. The accused assaulted his brothers in that caravan. The nature of the admissions of the assaults against the brothers and the assault against the complainant is similar in a number of ways. All of the assaults can be described in a way that does not involve any violence beyond the perpetration of the assaults. By this I mean that much of what the accused admits in his interview and what is described by the complainant is a process of normalising his behaviour such that he can act upon a sexual interest and desire with these young boys. He describes an obsession with the three brothers to the point where “I had to leave because I could feel myself going overboard”.[183] He described the boy, AS, as being a very affectionate boy. He went on to describe “I took my love into the bedroom” and that he took advantage of them.

    [183] Exhibit P4 Page 48.

26. In the 2006 interview, he said that he “was in love with the three kids thoroughly and they were the bees knees and end of all things”. He then went on to describe his sexualised behaviour towards the three brothers. His very lengthy description of his behaviour in MFI P6 answer 563, discloses a significant amount as to how he thought about these children and how he justified his own behaviour towards them. It articulates very clearly their vulnerability and the fact that he took advantage of this vulnerability to exploit these children.

27. His admissions in relation to his conduct and his thought processes lead inevitability to the conclusion that he has paedophilic tendencies towards prepubescent and pubescent boys. It also leads inevitably to the conclusion that he was prepared to act upon the sexual interest that he had in these children.

28. This sexual interest and his proclivity are relevant in an assessment of the allegations of his conduct towards the complainant. They are relevant in that he admits having a sexual interest in the children as they played games, ran around and took baths, and that he was prepared to act upon this sexual interest in a way that became quite emboldened and brazen.

29. In considering the charged counts, I consider that the accused’s sexual interest in the children in this family generally and his willingness to act upon that interest in an opportunistic way that appears to normalise this behaviour constitute a piece of circumstantial evidence that is admissible in respect of the charged offences.

30. His conduct towards the complainant was such that he behaved in a way that suggested that this type of conduct was normal and an acceptable way of life, and in the circumstances of this family at this time appears to have been a common occurrence.

31. The prosecution also relied upon the admissions made by the accused to the police to establish an underlying unity such that it is improbable that the complainant is lying in relation to the allegations of sexual misconduct. I have not found it necessary to consider this aspect. This is because I have found the offences are proven by the evidence of the witnesses and the admissions made by the accused which constitute a piece of circumstantial evidence that proves beyond reasonable doubt his sexual interest in the boys in this family and his propensity to offend against them in a sexual manner.

32. I am satisfied beyond reasonable doubt that the accused invited the complainant into his caravan to play on the Xbox that was in that caravan. Whilst the complainant was doing this, the accused sat next to him and slid his hand between his legs, putting his hands onto the complainant’s thigh and starting to rub up and down. He then moved his hands onto the testicles and penis of the complainant and rubbed for a few minutes. After that had occurred, the accused pulled down the complainant’s pants and underwear, made the complainant sit back on the bed and fellated the complainant for a couple of minutes. This was then interrupted by someone knocking at the locked door.

33. Further, I am satisfied beyond reasonable doubt that on a subsequent occasion the complainant was told to go into the caravan by the accused and play the Xbox. Whilst he was in the caravan he was alone with the accused. He played on the Xbox whilst sitting at the foot of the bed and on that occasion the accused grabbed his hand off the Xbox and slid it onto the accused’s crotch. The accused then placed his own hand over the top of the complainant’s hand and caused him to rub up and down on the accused’s penis. This happened for a few minutes and was interrupted by the complainant’s mother yelling from the house for the complainant. 

34. I note that in relation to the charges, the particularised dates do not constitute a material particular, rather, the offences are made out by the specificity of the events as described by the complainant. I am satisfied that each of the elements of the charged offences have been proven beyond reasonable doubt. At all stages, the complainant was under the age of 12 when these offences were committed.

35. I find the accused guilty of the offences of two counts of indecent assault and one count of unlawful sexual intercourse with a person under 12 years.