R v Munn
[2021] SADC 97
•26 August 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MUNN
Criminal Trial by Judge Alone
[2021] SADC 97
Reasons for the Verdicts of his Honour Judge Kimber
26 August 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Defendant charged with Indecent Assault (x2), Unlawful Sexual Intercourse and Maintaining an Unlawful Sexual Relationship (x2).
Three complainants. Evidence of propensity.
Verdict: Guilty of all counts.
Criminal Law Consolidation Act 1935 (SA); Evidence Act 1929 (SA) s 34P, referred to.
R v C, CA [2013] SASCFC 137; Hughes v The Queen (2017) 263 CLR 338; MAS v The Queen [2013] SASCFC 122, applied.
R v MUNN
[2021] SADC 97
R V MUNN, Geoffrey
Introduction
The defendant is charged with the following offences:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Geoffrey Wayne Munn between the 1st day of January 1998 and the 28th of June 2000 at Angle Vale or another place, indecently assaulted GH by rubbing him on the penis.
This may be a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Geoffrey Wayne Munn between the 1st day of January 1998 and the 28th of June 2000 at Craigmore, had sexual intercourse with GH, a person above the age of 12 years and under the age of 17 years, by performing an act of fellatio upon GH.
This may be a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Third Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Geoffrey Wayne Munn between the 1st day of January 1998 and the 28th of June 2000 at Craigmore, indecently assaulted GH by kissing him on the mouth.
This may be a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fourth Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Geoffrey Wayne Munn between the 1st day of January 1998 and the 25th day of November 2003 at Craigmore and other places, maintained an unlawful sexual relationship with AH, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards him, namely:
(a) Touching AH’s penis on more than one occasion;
(b) Performing fellatio upon AH on more than one occasion;
(c) Inserting an object into AH’s anus on more than one occasion;
(d) Inserting a finger into AH’s anus;
(e) Masturbating in AH’s presence on more than one occasion;
(f) Causing AH to insert his penis into the defendant’s anus on more than one occasion;
(g) Causing AH to perform fellatio upon the defendant;
(h) Causing AH to touch the defendant’s penis; and
(i) Attempting to place his penis into AH’s mouth on more than one occasion.
This may be a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fifth Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a child (Ibid).
Particulars of Offence
Geoffrey Wayne Munn between the 1st day of November 2001 and the 1st day of May 2005 at Elizabeth Downs and other places, maintained an unlawful sexual relationship with NP, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards him, namely:
(a) Touching NP’s penis on more than one occasion;
(b) Performing an act of fellatio upon NP on more than one occasion;
(c) Causing NP to perform an act of fellatio upon the defendant on more than one occasion;
(d) Inserting his fingers into NP’s anus on one occasion;
(e) Inserting his penis into NP’s anus on more than one occasion; and
(f) Causing NP to insert his penis into the defendant’s anus on more than one occasion.
This may be a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
The defendant elected for trial by judge alone. These are my reasons for finding him guilty of all five offences.
A single trial of five counts involving three complainants
In advance of trial, the defendant applied for the count involving NP (count 5) to be tried separately from the counts involving GH and AH (counts 1‑4). I refused the application. There was no application the three counts involving GH be tried separately from the count involving AH. I will explain below how I have used the evidence of one count with respect to another.
General directions
It is not necessary for me to direct myself in the same way a jury would be directed. The burden of proof is on the prosecution. Before the defendant can be found guilty of a count, each element of that count must be established beyond a reasonable doubt. I must give separate consideration to each count.
The defendant did not give evidence. I have not drawn any inference adverse to him because he exercised that right. The exercise of the right to silence is not evidence. It does not alter the prosecution’s obligation to prove each element of a count beyond a reasonable doubt. There may be many reasons why the defendant exercised his right to silence. I have not speculated about those reasons, nor about any other matter.
There was no evidence of ‘complaint’ pursuant to s 34M of the Evidence Act, 1929. To the extent there is evidence of what any witness said before giving evidence, such evidence cannot be used to show consistency of account, nor consistency of conduct.
Forensic disadvantage to the defendant
All witnesses gave evidence about events alleged to have occurred more than two decades ago. Some witnesses, including the most important witnesses, GH, AH and NP, were children at the time of the key events.
The passage of time between the alleged events the subject of the offences, and the circumstances surrounding those alleged events, has resulted in significant forensic disadvantage to the defendant. I have taken that disadvantage into account in scrutinising the evidence. The forensic disadvantage has manifested itself in more than one way. It may have adversely impacted upon the defendant’s memory of relevant events and his ability to instruct his counsel. It may have impacted upon his ability to test the evidence. Had the trial been closer to the events in question, the defendant may have been able to show he was not able to engage in one, or more, of the alleged unlawful sexual acts because he was working, or not in the company of an alleged victim for some other reason. Evidence of this type may have come from the defendant himself, a witness no longer available, or from documentary evidence (e.g. - work or travel records). More than one occasion of unlawful sexual activity with NP, and at least one occasion of unlawful sexual activity with AH, is alleged to have occurred while the defendant was driving a bus while working. Work records may no longer exist. Such records might have shown whether the defendant was working on a specific day and whether he was driving a bus. Had these allegations been made more contemporaneously, whether closed circuit television was present on the relevant buses would have been able to be ascertained.
The passage of time may also have impacted adversely upon the memory of the witnesses in ways which disadvantaged the defendant. A witness may have become convinced an event occurred, even though it did not. An honest and compelling witness can be unreliable. After many years, unreliability can be difficult to test and expose. The risk of assumption and error by witnesses is real.
Count 5 - NP
I will commence with count 5. I will consider this count without considering whether the defendant committed any count, or uncharged sexual conduct, towards either GH or AH.
In the circumstances of this case, the prosecution must establish beyond a reasonable doubt:
(1)The defendant was over the age of 18 years at the time of two or more of the unlawful sexual acts particularised in the charge;
(2)The complainant was under the age of 17 years at the time of two or more of the unlawful sexual acts particularised;
(3)The defendant knowingly maintained a relationship with the complainant;
(4)While the above relationship was being knowingly maintained, the defendant intentionally committed two or more of the unlawful sexual acts particularised with, or towards, NP.
The issue is the fourth element. As to that element, putting aside any unlawful sexual acts, there is no dispute the defendant was knowingly maintaining a relationship with NP throughout the relevant period. The real issue is whether two or more unlawful sexual acts within the particulars were committed. If that is proven beyond a reasonable doubt, there is no dispute all other elements are established beyond a reasonable doubt.
Overview
NP was born on 4 December 1990.
As a child, NP was interested in buses and trains. In pursuit of that interest, he would ride buses on his own. He would also watch trains. NP met the defendant when he was in primary school and while the defendant was driving a bus. NP was a passenger.[1] The defendant invited NP to stay on the bus after it had completed its route and while he took it to be washed. NP did so.[2] The defendant told NP that he would be driving the same route the following week. He invited NP to return.[3] NP did and he again met the defendant. They again spent some time together on the bus.
[1] T267.
[2] T267.
[3] T267.
On the occasion of this second meeting, at the end of his shift, the defendant took NP to his home at Lindsay Street, Elizabeth Downs (‘Lindsay Street’).[4] The defendant lived at Lindsay Street from about June 2001 to June 2004.[5] Later that day, the defendant took NP home.[6] From that point, NP regularly spent time with the defendant. He stayed with him on weekends and during the school holidays. This did not only occur at Lindsay Street. By no later than about June 2004, the defendant moved from Lindsay Street to an address at McLaren Flat (‘McLaren Flat’). A son of the defendant, his son’s partner and two children lived at that address. The defendant had a ‘granny flat’ at the rear of the house.[7] NP visited that address regularly and stayed overnight. He slept in the granny flat, as did the defendant.[8]
[4] T278.
[5] P1 [18].
[6] T280.
[7] T420.
[8] T309.
On two occasions before 2005, the defendant took NP interstate. On one occasion, they went to Melbourne and stayed in a hotel in the city. They travelled to Melbourne by train but returned home by plane. On the second occasion, they went to Sydney and then to the Gold Coast. Travel to those cities was by plane.[9]
[9] T314.
NP left school in about the middle of 2007.[10]
[10] T323.
While spending time with the defendant, and for present purposes while NP was a child and before he completed year 8 in 2005, the defendant indulged NP’s interest in transportation, more specifically buses and trains. For example, he took NP to work when he drove buses,[11] took him to transport depots in South Australia,[12] rode trains with NP on the interstate trips and gave him items associated with transportation (e.g. - toy buses and memorabilia).[13] The defendant regularly took NP train spotting in South Australia, including north of Adelaide.[14] In the company of the defendant, NP took photographs, and later videos, of buses and trains.
[11] T273.
[12] T267.
[13] T315, 361.
[14] T421.
The association between NP and the defendant continued after the period of the alleged unlawful sexual acts, including after NP turned 17 years of age. NP lived with the defendant in Western Australia on more than one occasion.[15] Having lived in Western Australia, the defendant lived with NP for a time in South Australia.[16] The defendant provided financial support to NP. Between 7 July 2011 and 21 July 2014, he deposited $11,182.80 into NP’s bank account.[17]
[15] T326.
[16] T337, P1 [21].
[17] P17.
There was no dispute about the above matters. I find the matters set out above proven.
A summary of the alleged unlawful sexual acts
The evidence of NP was the first sexual contact occurred on the first occasion that he went to Lindsay Street.[18] NP told me that he was 10 years of age just before his birthday.[19] His 11th birthday was on 4 December 2001. NP came to be in the defendant’s bedroom. The defendant started to touch him. The defendant removed his clothes and told him to lay on the bed. The defendant then placed NP’s penis into his mouth. NP was uncertain whether he inserted a finger into his bottom this time. NP said that he began to cry. NP told the defendant he did not want to do this because his brother had done it to him when he was younger and he did not like it. The defendant said he would stop. He did stop, but only for a short period. He placed NP’s penis back into his mouth and a finger into his bottom.[20]
[18] T278,
[19] T272, 294.
[20] T278-280.
I pause to observe that AH gave evidence the defendant told him that NP had said to the defendant he had been sexually assaulted by his older brother.[21] On the evidence, there is no explanation for the defendant having made such a comment to AH other than as a result of being told this by NP. The only evidence as to the context in which such a thing was said by NP was on the first occasion of sexual activity between him and the defendant. I am satisfied AH was told by the defendant what I have set out above. I am satisfied of this as I accept the evidence of AH and NP on this topic.
[21] T233.
NP’s evidence was the second occasion of sexual touching was when he next went to Lindsay Street. This was the first time he stayed overnight.[22] NP told me that after the first occasion of going to Lindsay Street he was taken home by the defendant. The defendant met NP’s mother. NP told me the defendant said to his mother he could take NP on weekends and school holidays to alleviate the stress on his mother.[23] NP’s mother had three other children. One was older than NP, two were younger. NP told me, consistent with this conversation with the mother, the defendant collected him from his home the following Friday and he stayed the weekend at the defendant’s home. NP’s evidence was a room had been made up for him. He was also introduced to AH for the first time. AH was introduced by the defendant as his grandson.[24] That was not true, but I have not used that inaccurate description in any way.
[22] T283.
[23] T281.9.
[24] T300.8.
NP said on this occasion he was permitted to play with collectable buses the defendant had. NP said there came a time when he was in the defendant’s bedroom. He could not recall how the sexual contact commenced. The defendant and he were naked. He took the defendant’s penis into his mouth. NP said he became erect and the defendant told him they were going to do something different. The defendant applied Vaseline to NP’s penis and to his own bottom. The defendant had NP place his penis into his anus.[25]
[25] T285.20.
NP told me that from this point there was regular sexual activity between him and the defendant. He told me that it would generally be the same ‘pattern’.[26] NP and the defendant would perform fellatio upon one another. The defendant would rarely have an erection. NP would then penetrate the defendant’s anus with his penis.[27] NP’s evidence was there were a ‘couple of times’ when the defendant penetrated him with his penis.[28] NP also gave evidence of sexual activity at Lindsay Street, but away from the bedroom. He told me that activity was limited to touching.[29] This included, but was not limited to, the defendant washing ‘his privates’ in the bath.[30]
[26] T288.6, 301.15.
[27] T288.
[28] T289.
[29] T305.
[30] T286.
Unlawful sexual acts continued after the defendant moved to McLaren Flat.[31] On the evidence, that move was sometime between about the second half of 2003 and the middle of 2004. It followed the ‘pattern’ of mutual oral sex and NP penetrating the defendant’s anus with his penis.[32] NP said it was every time he went there and ‘generally most nights’ he slept over there.[33]
[31] T309.
[32] T309.
[33] T287, 309-310.
NP told me there was sexual activity on the trip to Melbourne and the trip to Sydney and the Gold Coast.[34] That alleged conduct is not part of count 5. While I ultimately accept NP’s evidence of what occurred on those interstate trips, including the unlawful sexual acts, I have not used those unlawful sexual acts in any way in evaluating the balance of the evidence of NP. Given the extent of the unlawful sexual acts within the particulars of count 5, the unlawful sexual acts interstate do not add anything relevant to my assessment of NP’s evidence of the sexual acts particularised within count 5. The sexual acts which occurred interstate also do not detract from NP’s evidence in any way.
[34] T316.
NP’s evidence was of occasions of sexual activity at Lindsay Street when AH was present at the house.[35] NP also told me the defendant’s son and daughter-in-law and two grandchildren lived in the house at McLaren Flat.[36] On the evidence of NP, sexual acts took place when there was a risk of detection. First, detection by AH at Lindsay Street. Second, detection by any four of the members of his family who lived at McLaren Flat, particularly the two adults.
[35] T305.
[36] T309.
NP’s evidence included unlawful sexual acts in South Australia away from Lindsay Street and McLaren Flat. NP told me he rode buses with the defendant and there were occasions on which the defendant placed his hands into his pants and touched NP while the defendant was driving.[37] NP told me the defendant would turn the interior lights of the bus off.[38]
[37] T290.
[38] T290.
NP commenced year 8 in 2005.[39] NP told me the sexual activity ended early in that year. NP was 14 years of age. By this time, the defendant had provided NP with a mobile phone. NP told me he spoke to the defendant on the phone. NP’s evidence was the defendant was in the habit of saying that he loved him. NP told me that at the beginning of year 8:[40]
A.I remember the phone call because he said he loved me on the phone and I said that I didn't love him and that I'd met a girl and I like her and I did not want to do the things any more.
[39] P1 [29], T288.
[40] T318.34-37.
The defendant never touched NP in a sexual way again despite considerable opportunity.
Contact after the alleged unlawful sexual acts
NP and the defendant continued to have considerable contact after the above phone call. NP left school in the middle of 2007.[41] After working for a short while in South Australia, he went to live with the defendant in Western Australia.[42] NP did this more than once.[43] On at least the first occasion, it is possible NP was yet to turn 17 years of age. NP told me the defendant made some comments about his penis and suggestions about leaving doors open (the inference being so that the defendant could view NP).[44] An inference is the defendant had a sexual interest in NP at the time he was staying with him in Western Australia and exhibited that interest through the comments which NP said were made. While I am ultimately satisfied the defendant did make the comments alleged, even if they were made when NP was under the age of 17 years, I have not used them in any way.
[41] T323.
[42] T323.25.
[43] T326.
[44] T327.
The defendant assisted NP to travel to and from Western Australia, permitted him to live with him and helped him find employment.[45] As set out above, the defendant gave NP money between 2011 and 2014. I have not relied upon any of this evidence as evidence consistent with the defendant having committed any unlawful sexual act with NP. There is no dispute the relationship was a close one and remained so long after the alleged unlawful acts. NP regarded the defendant as a father figure and cared about him.[46] While the defendant’s behaviour in supporting NP in more than one way after the alleged sexual acts came to an end might be consistent with those acts having occurred, I will treat this support as equally consistent with the defendant simply wishing to support a person to whom he had become close for reasons unrelated to any sexual act. That being so, I will not use anything the defendant did, said, or wrote, after the alleged sexual acts ceased as conduct consistent with NP’s evidence of sexual acts. I will only use this aspect of the evidence to consider whether NP’s conduct in continuing to associate with the defendant after the alleged sexual abuse is inconsistent with that alleged abuse having occurred. I am satisfied it is not. I accept NP’s evidence that he continued to care about the defendant, despite what NP said the defendant had done.
[45] T323.
[46] T322.
A summary of the defendant’s position
As with the other two complainants, the defendant submitted I should not find NP’s evidence of unlawful sexual acts was honest and reliable. The defendant submitted I should not be satisfied beyond a reasonable any unlawful sexual act took place.
The defendant submitted NP had been inconsistent. He also submitted aspects of his evidence were inconsistent with other evidence. Inconsistencies of both types are relevant to honesty and reliability. The significance of any inconsistencies must be evaluated mindful of their relevance to the key issue of whether there were two or more unlawful sexual acts within the particulars (hereinafter, ‘the key issue in count 5’). While I will detail the inconsistencies individually, I have evaluated them in combination.
In his opening, the prosecutor told me NP would give evidence the trip to Melbourne was during the July school holidays.[47] NP’s evidence was that it was during the school term.[48] The approach of the court in MASv The Queen[49] is consistent with a statement in an opening address being able to be treated as a prior inconsistent statement even when the witness is not cross examined about what the prosecutor said. On the assumption NP’s evidence was inconsistent with something he said before trial, I am satisfied the difference is not significant to the key issue in count 5. There is no dispute there was a trip to Melbourne. Precisely when it was does not matter. NP’s evidence as to when the trip to Melbourne occurred varied between 2003 and 2004.[50] For the same reason, this is also not significant.
[47] T56.
[48] T311.
[49] [2013] SASCFC 122.
[50] T417 - 418.
NP’s evidence permits of some uncertainty as to when he first met the defendant. His evidence varied from being when he was nine years of age (November 2000) and 10 years of age.[51] There is no dispute NP and the defendant met and NP became a regular visitor to his home. There is no dispute they spent a considerable amount of time together over many years. Any inconsistency as to the timing of the first meeting is not significant to the key issue in count 5.
[51] T265, 272, 294, 296.
NP told me after the first occasion of sexual activity, the defendant ran him a bath.[52] In a statement to the police, NP said he had been driven home after the sexual activity. NP did not say he had bathed immediately before that. NP said in evidence about this inconsistency:[53]
A.So when I did that statement I wasn't in a very good - I had only just come out with it so I wasn't in a very good mental state, my memory is starting to remember a lot more, so, but I'm pretty sure he did bath me, but what I wrote in my statement it was the second time, but I can't recall if it was the first or second time. I was pretty sure it was the first time, because I was covered in baby oil, I would have smelt like Geoff.
[52] T280.
[53] T411.1-8.
The inconsistency has some significance as it is closely related to the sexual conduct on this occasion. I will bear it in mind in assessing NP’s honesty and reliability on the key issue in count 5. That said, also relevant is the explanation NP gave. Further, NP said bathing occurred more than once within many occasions of sexual activity. This inconsistency does not cause me to doubt the honesty and reliability of NP on the key issue in count 5. It is unsurprising that an honest and reliable witness might be inconsistent about a detail, even an important detail, surrounding sexual activity which occurred many years ago. Further, I accept NP’s evidence the giving of the relevant statement was a difficult time for him.
NP told me that after this first occasion he had been driven to the Dry Creek Motive Power Centre (a train yard) on the way home.[54] NP did not refer to that in his statement to the police. NP said he did not think it relevant.[55] I accept that explanation. It was not a detail central to any unlawful sexual act. Further, there is no dispute a focus of the non‑sexual aspect of the interactions between the defendant and NP was observing trains, buses, attending depots and the like. Whether NP was taken to such a location on this specific occasion is not of significance to the key issue in count 5. I take the same view of the fact that NP mentioned going to the Keswick and Islington terminals when collected by the defendant on the first night he stayed at his home.[56]
[54] T280.
[55] T411.
[56] T282, 411.
The defendant submitted that NP’s evidence of having been sexually assaulted on any bus should be doubted. It was submitted there may have been CCTV and persons outside the bus might have seen, making it improbable the defendant would act in such a way. I do not reject NP’s evidence for those reasons. NP’s evidence was only of touching. It was possible to engage in the conduct without it being obvious to anyone outside the bus. It is unclear if there was CCTV on any bus on which such conduct took place. If there was, it may be that it was at night and the defendant turned the interior light off. In short, I accept NP’s evidence of being touched in the way he told me while the defendant was working.
The defendant also submitted that I could not exclude that NP had communicated with AH and/or GH in recent years. The defendant effectively submitted that if I could not exclude that possibility, I should not exclude that NP might have made a false allegation influenced in some way by something communicated to him by AH and/or GH. NP denied any communication with either AH or GH about sexual acts with the defendant. The effect of his evidence was that he had no contact with either brother after the defendant moved from Lindsay St in 2003 or 2004.[57] The evidence of AH and GH was the same.[58] That move was more than a decade before any complainant spoke to the police and about fifteen years before the trial. If NP might not have been honest about that lack of contact, that is relevant to his honesty as to the key issue in count 5.
[57] T405-406.
[58] T233, 163-164.
I listened to, and watched carefully, all of the evidence in the trial. The evidence AH and GH gave about not having had contact with NP after the defendant left Lindsay Street did not leave me in any doubt they were being honest. I formed the same view about NP’s evidence on this topic. Those observations made, some further matters must be addressed. NP told me that after going to the police he did attempt to locate AH, but was unsuccessful.[59] The mere fact he tried gives rise to a possibility of success. However, I am satisfied he was not successful. I am satisfied of this as I accept the evidence of NP, AH and GH that there was no contact.
[59] T405.
There is another aspect of the evidence which might suggest NP had contact with AH and/or GH after April 2015, contrary to their evidence. This aspect of the evidence requires some detailed consideration.
GH told me the defendant had been hospitalised when he was still having contact with him. That contact ended in about 2004. GH told me the defendant had a diabetes problem and ‘some sort of infection in his foot’. GH understood the defendant ‘needed something amputated, a toe, I think’.[60] The evidence is the defendant was admitted to hospital in 2003, while living with AH at Lindsay Street. The defendant had a problem with his right ankle. In addition, the defendant had severe cellulitis affecting his right leg which progressed to necrotising fasciitis which required ‘multiple surgeries and subsequent skin grafting’. The defendant was in hospital from 8 May 2003 to 6 June 2003 and was then visited at home over about ten days to have his wound cleaned and dressing changed.[61] However, contrary to GH’s evidence, the defendant did not have a toe amputated in the period GH and the defendant had contact. There was an amputation, but it did not occur until April 2015.[62] In April 2015, the defendant was still having contact with NP. This gives rise to the possibility NP had contact with AH and/or GH after the defendant left Lindsay Street and that NP passed on the amputation to one, or both, of AH or GH. How else would GH have thought the defendant had something amputated, more specifically a toe?
[60] T127, 162-3.
[61] P18.
[62] P18.
Having considered the evidence of all three complainants, including the matters above, I am satisfied NP did not have any contact with AH or GH after the defendant moved from Lindsay Street in the latter part of 2003 or the first half of 2004. Having listened to, and watched, the evidence of all three, I accept their evidence about that. I have been unable to determine why GH had the belief of an amputation. The defendant did have surgeries and grafts to his leg in 2003. GH likely knew that as he was still having contact with him at that time. With the passage of time, GH may have mistakenly assumed there was an amputation. That said, an amputation is a very specific procedure, even more so amputation of a toe. GH told me he works on the APY Lands.[63] He may have some experience of diabetes and what can be a consequence. However, there is no evidence as to the prevalence of diabetes on the APY lands, let alone what surgery can be necessary. I must not speculate about such matters and I have not done so. Having carefully considered the evidence, all I have found is that I am satisfied there was no contact between NP on the one hand, and AH or GH on the other, after the defendant’s move from Lindsay Street in the latter part of 2003 or first half of 2004.
[63] T164.
Further discussion
NP was a very impressive witness. He gave evidence of his involvement with the defendant, including the sexual acts, in a matter of fact way. I formed the distinct impression from what he said, and the way he said it, that he was only seeking to relate events as he recalled them and was honest.
While care must be taken with drawing conclusions from demeanour, a telling moment in NP’s evidence was when he became distressed when asked about the second occasion of sexual activity.[64] I have no doubt that distress was genuine and the result of him knowing he was about to relate an occasion of sexual activity which had taken place.
[64] T283.
NP’s evidence of ample opportunity for the defendant to commit unlawful sexual acts was supported. His mother confirmed NP would stay with the defendant on weekends and during the school holidays.[65] While she did not recall NP going interstate with the defendant[66], there is no dispute he did. NP’s evidence about those trips is confirmed by items that he brought home and video footage made of the Sydney and Queensland trip.[67] I mean no disrespect to NP’s mother by observing I am satisfied she is a simple woman with an unusual affect. She had considerable difficulty accurately recalling events which occurred about 20 years ago. To the extent that any aspect of her evidence differed to that of NP, I have no hesitation in preferring his evidence. That NP spent time with the defendant at Lindsay Street was also supported by the evidence of GH and AH. Both saw him there.[68] While this evidence confirms opportunity, it does no more than that.
[65] T445.
[66] T448.
[67] TP9, P10 and P12.
[68] T127 (GH). T220 (AH).
I have referred above to NP’s distress at being asked about the second occasion of sexual activity. As the whole of his evidence impressed me, I will only give one further example from his evidence.
Whether NP was honest and reliable about the key issue in count 5 must be evaluated given his evidence of extensive unlawful acts commencing when he was about ten years of age and his claim he brought the conduct to an end. Those things being so, it might be expected that he would have avoided contact with the defendant. He did not. As set out above, he continued to associate with the defendant for over a decade. At times, he assisted the defendant. This included permitting him to live with him after the defendant returned from Western Australia.
As to assisting with that move, an aspect of NP’s evidence was:[69]
Q.Why did you go and assist the accused to move back to South Australia.
A.It's a really hard situation, I don't entirely understand it myself. A part of me pictured him as a dad figure, minus the abuse I went through.
Q.Is it for that same reason or a different reason that you allowed him to live with you both at the Dover Gardens and the O'Neill Street addresses.
A.A part of me cared about him but also a part of me didn't, does that make sense?
Q.As at today, what, if any, feelings do you have towards the accused.
A.As hard as it is to say, I still have a part of me that cares about him, unfortunately, but that's life and it's normal, so I've been told, so.
[69] T356.22-36.
When asked about how he felt about the defendant during the period of the sexual activity, NP told me:[70]
A.As awkward as it sounds it was nice to have someone care about me. Sort of like a dad that I never had.
[70] T322.16-17.
I found the above evidence, like the whole of the evidence of NP, compelling. I am satisfied what NP told me as to how he felt reflected what he had experienced.
As I will set out later, in a conversation with GH, the defendant denied offending with NP. I reject that denial. As I will also set out later in discussing AH’s evidence, NP may be mistaken about whether there was any sexual activity in the loungeroom at Lindsay Street. Assuming that he was mistaken about that, it has not caused me to have a doubt about his honesty and reliability with respect to the key issue in count 5. Assuming what AH saw was consistent with an unlawful sexual act outside of the particulars in count 5, I have not used that incident in any way. This includes not reasoning the defendant is a bad person and for that reason more likely to be guilty and not reasoning the defendant had a sexual interest in NP.
I am satisfied beyond a reasonable doubt of NP’s evidence of unlawful sexual acts between him and the defendant. NP gave evidence of each particular in count 5. I accept that evidence beyond a reasonable doubt. I find the defendant guilty of count 5.
The use of NP’s evidence in counts 1-4
Before turning to counts 1-4, I will deal with aspects of NP’s evidence relevant to those counts.
An admission with respect to AH?
An aspect of NP’s evidence was the defendant admitted having sexually abused AH. NP’s evidence was this admission was made at McLaren Flat. NP’s evidence was the defendant did not go into detail as to what had occurred with AH, but he ‘asked (the defendant) if he had done the same stuff to (AH) as he had done to me and he said yes’.[71] I pause to observe this alleged admission to NP was, of itself, sufficient reason to have a single trial of count 5 and count 4. As is obvious from NP’s account of this conversation, the alleged admission was made in the context of NP referencing what had been taking place with him. Further, whether the defendant might make such an admission to NP falls to be evaluated mindful of what NP claimed their relationship encompassed. It might seem unlikely the defendant would make such an admission, unless he had engaged in sexual acts with NP.
[71] T317.
The defendant disputes any unlawful sexual acts with AH. He also disputes the conversation above. I accept NP’s evidence of the conversation. I reject that NP might have lied, or that he might have been mistaken, as to the defendant’s response. I am satisfied the defendant admitted having done the ‘same stuff’ with AH as with NP. I will detail below how I have used that admission when discussing the evidence of AH and count 4.
Admissibility of the conduct the subject of count 5 in evaluating counts 1‑4 - proclivity
Count 5 having been proved beyond a reasonable doubt, I turn to consider the use of that finding, and the evidence in relation to it, in evaluating counts 1-4. More specifically, whether I am satisfied of the defendant having a relevant propensity or disposition which can be used as a piece of circumstantial evidence in evaluating counts 1-4. In considering this issue, I will adopt the approach outlined by Kourakis CJ in R v C, CA.[72]
[72] [2013] SASCFC 137 at [68]-[70].
I am satisfied of the following matters beyond a reasonable doubt. The unlawful sexual acts with NP took place over about three years. They commenced when NP was about 10 years of age, most likely just before his 11th birthday, and ended when he was 14 years of age. The sexual acts were frequent. There were many types. They commenced at a house at which the defendant was living and, for the most part, continued at places at which NP and the defendant stayed together. The sexual acts occurred while the defendant was supervising NP and against the background of the defendant indulging NP’s interests (i.e. ‑ his interest in transport).
Having made the above findings, the next step is whether, in the context of the wider alleged conduct, the commission of the conduct the subject of count 5 shows an innate behavioural proclivity to commit offences of the kind committed against AH and/or GH. The alleged conduct towards GH involved far fewer occasions of unlawful sexual activity over a shorter period. In considering the wider conduct, I will limit my consideration to the alleged conduct towards AH.
I will discuss AH’s evidence in detail later, but he alleges the defendant committed many unlawful sexual acts with him. AH alleges those acts commenced when he was about 12 years of age and came to an end about three or four years later. AH alleges the sexual acts were frequent and of many different types. For most of the period of the alleged unlawful sexual acts, AH alleges they occurred at houses at which the defendant lived while AH was under his supervision (towards the end they were living in the same house and there may be a doubt as to whether AH was ‘under supervision’ even though he was still a child). AH alleges the unlawful sexual acts occurred in the context of the defendant indulging the interests of AH and/or permitting him to do things he would not have been allowed to do elsewhere either at all, or to the same extent (e.g. ‑ permitting him to watch television, play video games, use the defendant’s computer, providing alcohol and Phenergan).
I am satisfied that the evidence of NP and AH is capable of showing that throughout at least 1998 to early 2005 the defendant took opportunities to assume responsibility for the supervision of boys, the parents of whom he knew only through the boys, and indulged their interests in order to create opportunities to act on his sexual interest in boys. I am satisfied the evidence of NP and AH is capable of showing the defendant acted on that sexual interest and did so repeatedly. I am satisfied that same evidence is capable of showing ‘an innate behavioural proclivity’ to commit unlawful sexual acts of the kind alleged by AH in the circumstances alleged by him. I will refer to this as ‘the proclivity’.
In evaluating count 4, I am satisfied the probative value of the proclivity substantially outweighs any prejudicial effect it may have upon the defendant.[73] I am also satisfied the proclivity has strong probative value as a piece of circumstantial evidence having regard to the particular issues arising in count 4.[74] Those issues being whether the evidence of AH is honest and reliable with respect to the unlawful sexual acts alleged by him. This includes whether the undisputed relationship the defendant had with AH was innocent.[75] I am satisfied the proclivity can be kept sufficiently separate and distinct from any impermissible use.[76] It can be kept separate from impermissibly reasoning the defendant is a bad person and therefore more likely to have committed count 4. I am also satisfied it can be ignored altogether in consideration of counts 1-3 inclusive.
[73] Section 34P(2)(a) of the Evidence Act, 1929.
[74] Section 34P(2)(b) of the Evidence Act, 1929.
[75] Hughes v The Queen (2017) 263 CLR 338 at [28].
[76] Section 34P(3) of the Evidence Act, 1929.
While I am satisfied the proclivity existed at the time of the unlawful sexual acts alleged by AH, I remind myself that a person with such a proclivity will not act on it every time the opportunity presents.
Cross-admissibility – improbability reasoning
Before trial, I also admitted the evidence of unlawful sexual acts with NP on counts 1‑4 on the basis of ‘similarity of account’ reasoning.[77]
[77] Section 34P(2)(a) Evidence Act, 1929; R v C, CA [2013] SASCFC 137 at [57]-[65].
I remain of the view that NP’s evidence is admissible in that way with respect to counts 1‑4. However, I did not ultimately use the evidence in that way. This being so, I say no more on that topic.
GH and AH – counts 1-4
I turn to counts 1-4.
GH was born on 1 December 1984.[78] AH was born on 25 November 1986.[79]
[78] T60.
[79] P1 [3].
GH and AH are brothers. Their parents separated in late 1997 or early 1998. By March 1998, GH and AH were living with their mother and younger sister at Craigmore.[80] The defendant lived within walking distance at Lomalinda Drive, Craigmore (‘Lomalinda Drive’). At some point after March 1998, GH met the defendant.[81] The defendant was outside his home. At some point, the defendant told GH he had an electric keyboard. GH said he would like to see it. GH went into the house and looked at the keyboard. GH also saw the defendant had a particularly large television. GH suggested he play Play‑Station on that television. The defendant later permitted GH to do that.
[80] T61.
[81] T63.
Precisely when AH first met the defendant in relation to GH’s first meeting and first entry into the house is unclear. What is clear is that GH and AH became regular visitors to Lomalinda Drive. They would visit more than once a week, including during the school term. They began to stay there overnight.[82] This occurred on weekends and sometimes during the week during school holidays.[83] The defendant allowed both GH and AH to watch TV and play video games.[84] On the evidence, they were permitted to watch at least one program (i.e. ‑ South Park),[85] their mother may not have permitted them to watch. The defendant also had a computer which was particularly used by AH.[86] The defendant had a dog the boys liked.[87] The defendant allowed both boys to drink soft drinks and consume fast food.[88]
[82] T72.
[83] T79.
[84] T73, 179.
[85] T180.
[86] T181.
[87] T107.
[88] T71-72, 75, 221.
There was no dispute about any of the above. I find the above matters proven.
Alleged offending – GH
GH is the complainant in counts 1-3 inclusive. As he is the elder brother, I will commence with these counts. I must give each of counts 1‑3 separate consideration. I must also consider those counts separately from counts 4 and 5.
GH’s evidence was the defendant took him on drives, sometimes with his brother, sometimes on his own.[89] GH told me of an occasion when he and the defendant were alone. GH said that he was about fifteen years of age. GH told me the defendant asked him if he wished to drive. The defendant placed GH on his lap. The defendant controlled the pedals while GH steered. While this was happening, the defendant placed his hand onto GH’s ‘crotch’ and then rubbed it over his clothing. GH’s penis became erect.[90] The rubbing of the penis on this occasion is the act the subject of count 1. There is no dispute that if that conduct occurred, it was an assault committed in circumstances of indecency. Given GH’s age, consent is not relevant. The issue is whether I am satisfied beyond a reasonable doubt the act occurred.
[89] T152.
[90] T86.
GH’s evidence was about a week later he spoke to the defendant about what had occurred. He told the defendant he did not want him to do it again. GH told me the defendant ‘agreed, but you could see that he was not happy about it’.[91] GH said that after this conversation, he continued to visit the defendant’s home. He told me he felt that he had dealt with the situation.[92]
[91] T91.18.
[92] T91.29.
GH said there was a second occasion of sexual activity at Lomalinda Drive. GH cannot have been any older than 15 years of age as he did not turn 16 until the defendant had moved to his next address.[93] An aspect of GH’s evidence about this second occasion was:[94]
A.Well, I'd just had a shower and Geoff was having a shave in the vanity area and then he - I noticed he was shaving and I said that no-one's taught me to shave before, I didn't have much going on on my face, but he says 'Well, I'll teach you' and then he taught me how to shave and then he asked me for a hug and at the time I had an erection because I was going through puberty, I was getting, yeah, just erections for no reason, I'd be mowing the lawn or something and get one. And then he asked me if I wanted some loving and then I agreed, just, I don't know why, but. And then he dragged me into the bedroom, didn't force me to go with him but I did sort of get towed a bit and then he started performing oral sex on me in the bedroom.
[93] P1 [2], [16]-[17].
[94] T92.14-27.
GH told me this incident was interrupted by his brother knocking on the bedroom door.[95] AH did not give any evidence of such an occasion, but GH’s evidence was not that AH would certainly have seen any sexual activity, nor was it something he might otherwise be expected to recall. GH told me he had ‘enough time to cover myself’[96] before the defendant opened the door.
[95] T96.12
[96] T96.
GH’s evidence was after this incident he spoke to the defendant about what had happened. He said he did so on the phone when the defendant was away on a work trip. GH’s evidence of this phone call included:[97]
A.Yes, I asked him - well, I more or less told him, I said 'That incident in your bedroom the other day, I don't want that again, right, I don't want nothing below the belt', and then he turned around and he said to me that he's not a rapist, he's just very gay, and I was, like 'I don't care what you say. Just don't do that again', you know, and he apologised and said sorry if he hurt me, or anything, and I just said 'Don't worry about it', and I said 'You have a safe trip', and then said goodbyes and then I went on with my night. There was also as well at the tail end of that conversation I made him promise not to hurt my brother Andrew as well 'Don't touch him. Leave him alone', and he promised me that he wouldn't touch Andrew and then we said goodbyes and then hang up, like –
[97] T100.5-19.
The defendant placing GH’s penis into his mouth on the above occasion is the act the subject of count 2. It is the only occasion of such an act with GH. If I am satisfied beyond a reasonable doubt that act occurred, count 2 is proven beyond a reasonable doubt.
GH’s evidence was the final occasion of any sexual touching occurred at his home at Craigmore. The defendant was assisting GH’s mother with the installation of an aerial in her bedroom. GH said he was in the roof cavity while the defendant was outside on the roof. While assisting, the defendant asked GH for a kiss. GH said he gave the defendant a quick peck on the lips.[98] GH said the defendant was still living at Lomalinda Drive on this occasion. If I am satisfied of that beyond a reasonable doubt, consent is not relevant as GH cannot have been any older than 15 years of age. That alleged kiss is the incident the subject of count 3. If GH’s evidence is accepted beyond a reasonable doubt, the defendant applied some force to GH’s lips and, for reasons I will give, that kiss will have been indecent. The real issue is whether I am satisfied beyond a reasonable doubt the kiss occurred.
[98] T115.17.
GH also gave evidence of an incident not the subject of a count, but which has a clear sexual connotation. GH told me he came to be in the defendant’s bed at Lomalinda Drive on one occasion. He said there had been a loud noise outside during the night. The defendant invited GH to lie in bed with him. The defendant hugged him and it felt like the defendant had an erection.[99] The defendant disputes this incident. While I am satisfied this incident occurred, I have not used it in evaluating counts 1, 2, 3 or 4. I have not reasoned from that incident the defendant had a sexual interest in GH, let alone that he acted on that interest on that occasion. I have also not reasoned from that incident the defendant is a bad person and therefore more likely to be guilty of count 1, 2, 3 or 4. As I have said, I have found count 5 proven without any reference to the alleged sexual acts with either GH or AH.
[99] T111.23.
Collusion or contamination – some further observations
As set out above, I am satisfied that GH and NP have not had any contact since the defendant left Lindsay Street. That move was in late 2003 or early 2004. I am satisfied they have never discussed their respective allegations, nor have they learned of their respective allegations in any other way.
GH and AH have had contact. It is necessary to consider what they have discussed.
GH told me he was aware before giving evidence, and before giving any affidavit to the police, AH had alleged that he had been sexually abused by the defendant.[100] There is other evidence that AH spoke to the police before GH.[101] I accept GH’s evidence that he was not aware of the detail of what AH alleged occurred between him and the defendant, other than some limited matters. I will refer to these matters below. The only relevance of what GH and AH discussed about the defendant’s sexual conduct is to inform me as to whether AH and/or GH might have given evidence of what occurred to each of them influenced by what the other had said and to enable me to assess any inconsistencies in their evidence.
[100] T131.
[101] T255.
I reject that GH might have been dishonest in his evidence of counts 1, 2 or 3 or the uncharged conduct in the bed because of what he was told by AH. I also reject GH’s evidence might have been otherwise unreliable (i.e. – contaminated) by anything he was told by AH. I will return to this below.
The position of the defendant
The defendant submitted the issue with respect to the acts the subject of counts 1‑3 was the honesty and reliability of GH. The defendant submitted I should not accept GH’s evidence of unlawful sexual acts beyond a reasonable doubt. The defendant submitted GH’s evidence was inconsistent with other evidence. Such inconsistencies can be relevant to honesty and reliability. As with NP, the significance of any inconsistency must be evaluated mindful of the key issue in counts 1‑3, namely whether the act the subject of the count occurred. As with NP, all such matters must be evaluated in combination.
I turn to some of the matters raised by the defendant.
The evidence of GH was the incident the subject of count 2 when he was ‘no older than 15’[102] and his brother was playing the Dreamcast console[103]. GH said this incident occurred before he was suspended at school and was ‘half the reason’ he was acting out.[104] The Dreamcast console was released on 30 November 1999, but GH was suspended in May and November of that year.[105] If AH was playing the Dreamcast console, the incident cannot have contributed to GH being suspended. I will return to this.
[102]T93.
[103] T154.
[104] T155.
[105] P18 [65].
GH said he met NP at 1 Nitschke Street, Elizabeth Grove (‘Nitschke Street’).[106] The defendant lived at that address immediately before he moved to Lindsay Street. It is likely the defendant had moved to Lindsay Street by about May 2001.[107] NP’s evidence was he only went to Lindsay Street and then McLaren Flat. I accept those aspects of NP’s evidence. It is consistent with NP’s evidence of meeting the defendant in about late 2001, just before his 11th birthday.[108] I do not regard this difference as significant to my assessment of the honesty or reliability of GH about counts 1-3. GH was relating events from about 20 years ago. GH did not live at Nitschke Street, nor at Lindsay Street while NP was visiting. On the evidence of both NP and GH, their interactions in this period were very limited.[109] In my view, that GH is mistaken in his recollection has no significance to my evaluation of GH’s evidence of unlawful sexual acts with him.
[106] T122.
[107] P1 [19].
[108] P1 [4].
[109] T121, 305-306.
GH’s evidence was when he slept at Lomalinda Drive, he slept in the middle bedroom and AH slept in the bedroom closest to the rear of the house.[110] AH said he slept in the middle bedroom.[111] Given both GH and AH allege they were offended against in the defendant’s bedroom and when each were sleeping over, where each slept has some relevance to the honesty and reliability of both. I will return to this.
[110] T76.
[111] T192.
GH told me AH showered alone at Lomalinda Drive.[112] In contrast, AH told me he showered with the defendant at that house.[113] This difference is significant to the honesty and reliability of both GH and AH. I will return to this.
[112] T148 - 149.
[113] T199.
The defendant submitted there was a difference in the evidence of AH and GH as to whether AH received a mobile phone from the defendant at the same time as GH.[114] I am not satisfied there is an inconsistency in the evidence of GH and AH. Even if I am wrong about that, it is not important to my evaluation of the honesty and reliability of either GH or AH. There is no dispute both witnesses received mobile phones from the defendant. Precisely when, in what order, and how many, is not relevant to their honesty and reliability about the unlawful sexual activity with them.
[114] T107, 201.
There is a difference in the evidence of GH and AH as to whether they were given alcohol and Phenergan by the defendant at the same time. GH told me they were.[115] AH told me that they were not.[116] There is also a difference in the evidence of AH and GH as to whether there was sexual activity with them after the consumption of alcohol and Phenergan. GH does not link the two. AH does.[117] These differences are significant to my assessment of the honesty and reliability of both witnesses. I will return to these differences.
[115] T112 – 113.
[116] T206.
[117] T196.
GH’s evidence was that after the incident the subject of count 1, he sewed his ‘snap pants’, at least in part to prevent a repeat of like conduct.[118] The defendant submitted that I should doubt GH did that. An aspect of that submission was that, on the evidence, another reason existed. That is, that they came apart at times. There is also that the alleged conduct the subject of count 1 had been over his clothing. I am satisfied that GH did what he said, for the reasons he gave. That he might have had more than one reason for doing what he did has not caused me to doubt his evidence.
[118] T89-90
The defendant also asked me to doubt GH’s evidence because of his account of seeing AH and the defendant go in the direction of the latter’s bedroom and then hearing the bedroom door. GH told me he did not do anything, other than watch his brother when he returned.[119] The defendant submitted I should doubt that evidence as, given his evidence of what had happened to him and what he had done in response, GH must have thought AH was to be the subject of sexual abuse and, if that were so, he would have done something. I do not doubt GH’s evidence for those reasons. I accept GH’s evidence there was an occasion like he described. However, I also accept his evidence that AH did not seem to be disturbed or distressed when he returned. I am satisfied that explains why he did not do anything. I will not use this aspect of GH’s evidence to support AH’s evidence of any unlawful sexual act.
[119] T101-102
The defendant submitted there were differences in the evidence of GH and AH as to what they discussed about the conduct towards them. Any differences are relevant to their honesty and reliability, including whether they might have given an account influenced by what they had been told and not reliable or the truth.
GH’s evidence was he had not discussed his abuse with AH ‘in any detail’[120], but there was an occasion on which he told AH the defendant had ‘sucked me off once’.[121] GH told me AH told him that he had been abused on several occasions, but AH did not go into full details. GH’s evidence was he was told by AH that the latter would be dragged into rooms and would claw at the door and had biros stuck in his bottom.[122] For AH’s part, his evidence was GH had only told him that he had been touched once[123] and he had not given GH detail about what happened to him.[124]
[120] T140.
[121] T143.
[122] T142 - 143.
[123] T232.1.
[124] T231.
Putting aside the difference in the evidence about whether AH told GH about clawing at doors, to which I will return, the balance of the differences are not significant to the honesty and reliability of either witness. I accept their evidence they did not wish to discuss the detail. That each might not recall accurately what the other said is unsurprising given that wish and given I accept the conversations were limited and sometime ago. Further, there is evidence that at least one conversation may have occurred after there had been drinking.[125] Drinking can impact the accuracy of memory.
[125] T141.38.
I accept GH’s evidence AH told him he had clawed at doors to resist the defendant. It is unlikely GH was mistaken about being told that. It is detail likely to stand out in the mind of GH, even more so when AH told me that he had responded in such a way. However, I am uncertain as to whether AH did respond in that way. While AH gave evidence of doing so[126], he did not give that detail in statements given before trial.[127] That it did not appear in those statements was contrary to the evidence of AH.[128] I am satisfied AH believes he resisted in that way. AH’s evidence about that was honest. However, I unable to determine whether that aspect of AH’s evidence is reliable. I will bear this in mind in assessing AH’s evidence about what he says happened to him.
[126] T237.
[127] P18.
[128] T256.
GH – counts 1 – 3 - discussion
GH impressed me while giving evidence. I formed the distinct impression he was telling the truth and seeking to give evidence only of what he recalled. GH gave his evidence in a straight forward way. Like NP, GH was a very impressive witness.
As I was impressed with the whole of the evidence of GH, I will only give some examples of the evidence of GH which I found particularly compelling.
GH told me how he felt after the incident the subject of count 1. His evidence was:[129]
Q.What happened when you got home after that occasion.
A.I went to my mum's room to let her know that I was home. I laid down on the bed with her to watch a TV show, I was feeling like telling her but I never did. Then I just went to bed and started crying.
Q.At that time at the house you were living at, did you have - what were your sleeping arrangements. Did you have your own bedroom or did you share it with one or more others.
A.We shared a - me and my brother shared a room. We had bunk beds.
HIS HONOUR
Q.Mr (H), it might seem like a strange question but why did you cry.
A.I didn't know how to - like, I just - I was scared, I guess, and then as a reaction I just started crying. I didn't know what to do, I was like 'Do I just blow it - this off or do I tell someone?', I didn't know what to do.
[129] T88.30 ‑ 89.10.
That evidence was not an invention, nor a reconstruction. I am satisfied it reflects what happened.
I also found GH’s evidence about his conversations with the defendant about count 1, and separately count 2, compelling.
As to the conversation the subject of count 1, GH told me that he told the defendant he did not want it to happen again. The defendant said words to the effect of: ‘What do you expect? You’re sitting on my lap’ and that he had done it for GH as it is ‘what people like us do’.[130]
[130] T91.
As for the conversation after count 2, GH said he phoned the defendant while he was away working. GH’s evidence included the following:[131]
Q.Was there a particular reason why you decided to contact him while he was away on the charter trip.
A.I was just ringing to see how he was going and also because I wanted to confront him about the incident.
Q.And did you confront him about the incident over the phone.
A.Yes, I asked him - well, I more or less told him, I said 'That incident in your bedroom the other day, I don't want that again, right, I don't want nothing below the belt', and then he turned around and he said to me that he's not a rapist, he's just very gay, and I was, like 'I don't care what you say. Just don't do that again', you know, and he apologised and said sorry if he hurt me, or anything, and I just said 'Don't worry about it', and I said 'You have a safe trip', and then said goodbyes and then I went on with my night. There was also as well at the tail end of that conversation I made him promise not to hurt my brother Andrew as well 'Don't touch him. Leave him alone', and he promised me that he wouldn't touch Andrew and then we said goodbyes and then hang up, like -
Q.When you asked the accused to promise you not to touch your brother Andrew, was there any condition that the accused put on that agreement or anything.
A.No, he didn't. He just said 'Don't worry, I promise you I won't', and I'm like 'Good, you better not'.
[131] T99.37 – 200.24.
I reject that GH might have invented those conversations, or that he might have become convinced they took place even though they did not.
As set out above, there are differences in the evidence of GH and AH which must be evaluated before coming to a view as to the honesty and reliability of GH. I have evaluated their combined effect.
That GH’s evidence as to the timing of count 2, or what console AH was playing, does not fit with count 2 causing him to be suspended, does not cause me to doubt his honesty and reliability as to the act the subject of that count, nor any other. It is unsurprising that after more than 20 years detail as to surrounding circumstances, including the timing of an incident, or what contribution it made to being suspended from school, might be inaccurate. It is also unsurprising that GH may be mistaken as to precisely what his brother was doing at the time of the act the subject of count 2. On the evidence, the playing of consoles was a regular activity. It would be unsurprising if, many years later, GH might have attributed behaviour at school to that incident. It is to be remembered the evidence of GH is that he had been subjected to sexual abuse (the incident the subject of count 1) before this incident, had been upset by that incident and spoke to the defendant about it. While unnecessary to decide, it may be his approach to school was impacted by the first incident. As to the fact that AH came to the bedroom door during the incident the subject of count 2, but gave no evidence of such an occasion, that does not cause me to doubt GH’s honesty or reliability. The evidence of GH does not mean that AH saw something he would be expected to recall.
The difference in the evidence of GH and AH about the bedrooms in which they slept at Lomalinda Drive is important, but does not cause me to doubt GH’s honesty or reliability, nor for that matter AH’s. The significance of this difference falls to be evaluated mindful of there being no dispute that both AH and GH slept over at that house on many occasions. In addition, there was also a difference in the evidence of AH and GH as to whether they slept over at the same time. GH said that they did,[132] but said there were other occasions when AH was not present.[133] AH said that they did not sleep over at the same time.[134] There was also evidence from the mother of GH and AH that they initially went together, but then it was just AH.[135] It follows that AH may not always have slept in the same room. In all the circumstances, including the passage of time, these differences have not caused me to doubt the honesty and reliability of either GH or AH as to whether there were unlawful sexual acts with them. I am satisfied that what stands out in the mind of both GH and AH is the sexual activity, not the precise circumstances of all visits to the home of the defendant.
[132] T72.37.
[133] T79.
[134] T192.
[135] T440.
It is an agreed fact Phenergan was prescribed to the defendant by no later than 12 June 2003.[136] While this was after the alleged sexual abuse of GH had ended and towards the end, or after, the alleged sexual abuse of AH, the evidence is not that the defendant could not have had access to that drug before that time.
[136] P18 [41].
As to the difference between GH and AH about whether alcohol and Phenergan were consumed in the presence of the other, that is significant as it is a detail that might be expected to be recalled accurately. The significance must again be evaluated bearing in mind that both witnesses were recalling events from about 20 years ago, the evidence they did not always sleep over together and the undisputed expert evidence that Phenergan and alcohol can have an adverse impact upon memory.[137] However, the significance of this difference in the evidence of both witnesses falls to be evaluated in the context of a further difference. While both GH and AH gave evidence of being given alcohol and Phenergan, unlike GH, AH told me that sexual activity occurred after the consumption of the two drugs. GH made no such allegation. However, GH told me he asserted himself and on two occasions asked the defendant not to repeat conduct which had occurred. I found both aspects of GH’s evidence compelling. On the evidence, AH ended up staying over after GH stopped doing so. AH also alleged he was offended against after consuming the alcohol and other drug. In all the circumstances, it would not be surprising if AH accurately recalls what happened to him, not whether his brother consumed the two drugs in his presence. The evidence of GH about he and his brother consuming alcohol and Phenergan at the same time is more likely to be accurate. I accept it. GH is older. His memory may be more reliable for that reason alone. What really matters is that these differences do not cause me to doubt the honesty and reliability of either witness as to sexual acts with them. What is telling is that GH’s evidence supports AH being given both alcohol and Phenergan. That support is relevant as AH alleges that took place, and that sexual activity occurred against that background.
[137] P23.
As for the difference in the evidence about AH showering with the defendant, that difference does not cause me to doubt the honesty or reliability of either witness as to whether he was subjected to sexual activity. As set out above, the evidence was both did not always stay over at the same time. The evidence of their mother was that after a time AH went to the home of the accused alone.[138] AH’s evidence was that GH would not always be in the house when he showered.[139] On the evidence, there was opportunity for AH to shower with the defendant and GH not to be aware of that.
[138] T440.
[139] T243.
Counts 1- 3 - conclusion
As set out above, I must give each count separate consideration.
GH’s evidence of sexual activity with the defendant was compelling. He was an honest witness doing his best to be accurate.
As to count 1, I am satisfied beyond a reasonable doubt the defendant deliberately touched the penis of GH over his clothing, while GH was on his lap, steering his car. I am satisfied beyond a reasonable doubt it was before GH was 17 years of age. That act was indecent. I find count 1 proven beyond a reasonable doubt.
Having found that count proven, I will only use the evidence of that count in the following ways. First, to shed light on why the defendant may have felt able to commit count 2 and count 3 without rejection or complaint. I am satisfied this use of count 1 substantially outweighs any prejudicial effect it may have upon the defendant.[140] This use can be kept separate and distinct from any other use.[141] I will not use the evidence of count 1 to reason the defendant is a bad person and for that reason more likely to be guilty of either count 2 or count 3. I will also not use it to reason the defendant had a sexual interest in GH and acted on that interest.
[140] Section 34P(2)(a) of the Evidence Act, 1929.
[141] Section 34P(3) of the Evidence Act, 1929.
As to count 2, I am satisfied beyond a reasonable doubt there was a single occasion at Lomalinda Drive on which the defendant placed the penis of GH into his mouth. That is an act of sexual intercourse. GH was under the age of 17 years when the defendant was living at that house. I find count 2 proven beyond a reasonable doubt.
I will only use the evidence of count 2 with respect to count 3 in the following ways. First, to shed light on why the defendant may have felt able to ask GH to kiss him without rejection or complaint. I am satisfied this use substantially outweighs any prejudicial effect it may have on the defendant.[142] I am satisfied this use can be kept separate and distinct from any other use.[143] Second, to shed light on whether the kiss the subject of count 3 was indecent. I am satisfied this use substantially outweighs any prejudicial effect it may have on the defendant and has strong probative value on the issue of whether the act the subject of count 3 was indecent.[144] I will not use the evidence the subject of count 2 to reason the defendant is a bad person and more likely to be guilty of count 3.
[142] Section 34P(2)(a) of the Evidence Act, 1929.
[143] Section 34P(3) of the Evidence Act, 1929.
[144] Section 34P(2)(a) and (2)(b) of the Evidence Act, 1929.
As to count 3, I am satisfied beyond a reasonable doubt that on an occasion at GH’s home at Craigmore, while the defendant lived at Lomalinda Drive and GH was under the age of 17 years, the defendant asked GH to kiss him and GH did so. I am satisfied beyond a reasonable doubt that the defendant asking GH to do that resulted in each applying force to the other and that the kiss was indecent. I find the defendant guilty of count 3.
Consistent with what is set out earlier, I have found the defendant guilty of each of counts 1, 2 and 3 without using the proclivity as a piece of circumstantial evidence. I have not used the evidence of any alleged sexual act with NP or AH in any way.
The use of counts 1‑3 and the uncharged occasion with GH in evaluating count 4
While I am satisfied beyond a reasonable doubt of counts 1‑3 and that the uncharged conduct in the defendant’s bed occurred, I will not use those findings and the evidence of those acts, in evaluating count 4. I am not satisfied GH’s evidence, viewed in isolation, establishes the defendant had a relevant proclivity with respect to boys of a similar age. The conduct towards GH was far more limited than towards AH and NP. Consistent with what I have set out above, I will not use the evidence of NP or GH to reason on the basis of ‘similarity of account’.
Having found the defendant guilty of counts 1‑3 and count 5, and having found that sexual acts outside of those counts occurred, I will not reason the defendant is a bad person and for that reason more likely to be guilty of count 4.
An admission to GH of offending with AH?
Before turning to count 4, it is necessary to deal with another aspect of GH’s evidence.
GH told me that when the defendant was living at Lindsay Street, but preparing to move to McLaren Flat, he spoke to the defendant about both AH and NP. There was no application for a separate trial of counts 1‑3 from count 4. Because of this evidence alone, it was appropriate there be a single trial of those counts. It might have seemed unlikely that GH would have spoken to the defendant in the way he did unless there had been sexual acts between the two of them before this conversation. It also might have seemed unlikely the defendant would have responded as GH says he did.
The conversation also supports that a single trial of counts 1‑3 and count 5 was appropriate. NP gave evidence the defendant had difficulty sustaining an erection.[145] While I did not use this conversation in finding the defendant guilty of count 5 and only considered the aspect of the conversation which might amount to a denial of offending with NP in evaluating count 5, as will be seen, during the conversation with GH, the defendant made a reference to problems with arousal.
[145] T242, 288-289.
Turning to GH’s evidence of the conversation. GH said by this time he believed something had happened between the defendant and AH. GH said:[146]
A.Well he was giving me a lift home or to my mum's - I can't remember exactly - but we were going down the Phillip highway and I had a conversation with him, because I knew he was - in the words I use were 'running away' and I said to him 'I told you to leave Andrew alone and you promised me you would and you didn't' and then he started saying that he wasn't a paedophile, he was just very gay. I then interjected him and said 'No, you're a paedophile. Doesn't matter how the law - what you think it is, in a court of law you're a paedophile, you shouldn't touch kids' and then I said to him 'I hope you've been leaving Nathan alone' and that's when he informed me he was dead down there and he couldn't even if he wanted to.
[146] T130.25-38.
The prosecution submitted I should conclude the defendant admitted sexually assaulting AH in the above conversation.
I am satisfied the conversation above took place as recalled by GH. Nonetheless, I have not treated any aspect as an admission to unlawful sexual acts with AH, nor NP. While it is arguable the defendant’s response could be interpreted as a failure to expressly deny what GH suggested, that is not the only interpretation. Part of the response was that he ‘wasn’t a paedophile’ and ‘was dead down there and couldn’t even if he wanted to’. Each of those comments could be construed as a denial. I will treat what was said by the defendant as a denial of sexual offending against AH and bear that in mind in evaluating count 4. I have already treated it as a denial in evaluating count 5.
As set out above, I am satisfied that the defendant did make an admission to NP about his conduct with AH. I will return to that admission below.
AH – count 4
I turn to count 4. In the circumstances of this trial, the prosecution must prove beyond a reasonable doubt:
(1)The defendant was over the age of 18 years at the time of two or more of the unlawful sexual acts particularised;
(2)AH was under the age of 17 years at the time of two or more of the unlawful sexual acts particularised;
(3)The defendant knowingly maintained a relationship with AH;
(4)While the above relationship was being knowingly maintained by the defendant, he intentionally committed two or more of the unlawful sexual acts particularised with, or towards, AH.
AH turned 17 on 25 November 2003.[147] AH told me there was sexual activity at Lindsay Street,[148] but that it became less frequent, and eventually stopped, once NP started to visit the defendant.[149] I am satisfied NP was visiting and engaging in sexual acts with the defendant by no later than December 2001. The defendant moved from the Lindsay Street address at some point between 6 June 2003 and 22 March 2004. On the evidence, it is unlikely any sexual act about which AH gave evidence was after he turned 17. If there was, it is not within the particulars as any such act would not be unlawful. As it would not be unlawful, it is not ‘discreditable conduct’.
[147] P1 [3].
[148] T211.
[149] T221.
On the evidence of AH there were numerous unlawful sexual acts within the particulars. That aspect of his evidence is the real issue in count 4. There is no dispute the balance of what must be proven has been established beyond a reasonable doubt.
Overview
AH first met the defendant after he and his mother moved to Craigmore. Like his brother, he became a regular visitor to the defendant’s home during the week and on weekends. He stayed overnight on the weekends and during the week.[150] AH continued to visit the defendant when he lived at his next address at Elizabeth Grove[151] and then at Lindsay Street.[152] AH ultimately lived at Lindsay Street with the defendant.[153] This occurred at some time before the defendant was admitted to hospital in May 2003. The foregoing matters were not disputed. I find them proven.
[150] T191.25, 258.21, 436.
[151] T207.
[152] T212.
[153] T212.25.
AH’s evidence was the sexual acts with the defendant were significantly more extensive than with GH. They commenced at Lomalinda Drive. He told me it began with him being touched on the chest and lower towards his groin. He said that lasted a couple of months.[154] This touching is not within the particulars of count 4. I will only use that evidence to shed light on why the defendant may have believed AH would not complain about sexual acts which are within the particulars. I am satisfied that use of that evidence substantially outweighs any prejudicial effect it may have on the defendant and can be kept separate and distinct from any other use.[155] I have not used that evidence to show a propensity or disposition, nor to reason the defendant is a bad person and for that reason more likely to have committed any unlawful sexual act.
[154] T185.32.
[155] Section 34P(2)(a) and (3) of the Evidence Act, 1929.
AH told me the first time he recalled his penis being touched was in the defendant’s bedroom. AH ejaculated.[156] He said the next time the defendant masturbated him was in the shed.[157] AH told me there became a pattern of sexual acts when at the defendant’s house. He would be given alcohol and Phenergan. The defendant would suck his penis and try to stick something in his bottom (a solid object like a pen or a finger).[158]
[156] T187.2.
[157] T189.12.
[158] T197.8, 198.18-27.
A specific occasion AH told me about was on a New Year’s Eve at Nitschke Street. AH drank alcohol and took Phenergan. AH told me:[159]
[159] T209.22-38.
Q.What happened after the - you'd gone out to watch the fireworks.
A.We went back inside into a room. He laid me down on this bed and he squatted over the top of me and because I had an erection he made me fuck him.
Q.When you say he made you fuck him, did he put your penis into his anus.
A.Yes.
Q.Did you ejaculate.
A.Yes.
Q.Was that the first time he'd ever put your penis in his anus.
A.Yes.
Q.Do you remember what was going through your mind and what you were thinking at that moment.
A.Yeah, I just started thinking about a girl I liked at high school.
AH also said there was an occasion on which the defendant succeeded in placing AH’s penis in his mouth and at least one other occasion when he attempted to do that.[160] On other occasions, AH touched the defendant’s penis[161] and the defendant would touch himself.[162] AH told me of one occasion of being touched on a bus.[163]
[160] T213, 242.
[161] T211.
[162] T211.
[163] T216-217
The position of the defendant
The defendant submitted the prosecution had not proven any unlawful sexual act with AH beyond a reasonable doubt. As with the other complainants, the defendant submitted that I must consider honesty and reliability. I will do so.
The defendant particularly relied upon what he submitted were inconsistencies between the evidence of AH and earlier statements he had made, and inconsistencies between the evidence of AH and other evidence in the trial. Inconsistencies of both types are relevant to the honesty and reliability of AH. All criticisms of the evidence of AH must be evaluated in combination. AH’s evidence can also be evaluated mindful of the proclivity, but bearing in mind the proclivity does not mean the defendant acted upon it at every opportunity. AH’s evidence must also be evaluated mindful of the admission to NP and the denial to GH.
I have set out above some of the differences in the evidence of AH and other evidence. I will not repeat all the matters already set out. I have born them in mind.
Part of what is set out earlier is my preference for the evidence of GH of occasions when both brothers consumed alcohol and Phenergan in the presence of the other. This difference does not cause me to doubt the honesty or reliability of AH about unlawful sexual acts with him. I am satisfied the difference is explained by AH being in the presence of the defendant on more occasions, likely consuming those two drugs on more occasions, the potential for the consumption of those drugs to impair memory and/or the passage of time. That GH does not give evidence of unlawful sexual acts after consuming those two drugs, and my acceptance of that evidence, do not undermine the honesty or reliability of AH. I am satisfied that difference exists as GH spoke to the defendant about not wanting conduct to be repeated.
AH did not give evidence of every particular within count 4. AH only gave evidence of placing his penis into the anus of the defendant once. He was uncertain if it happened on another occasion.[164] AH told me the defendant only tried to place his penis into AH’s mouth once.[165] I will assume AH’s failure to give evidence of every particular is evidence inconsistent with a statement/s made by him before giving evidence. There is inadequate reason to distinguish between this type of difference and a difference between a prosecution opening and evidence.[166]
[164] T209-210.
[165] T213.
[166] MAS v The Queen [2013] SASCFC 122.
In addition to matters already mentioned, the evidence of NP and AH differed in an important respect. AH gave evidence he returned to Lindsay Street one day and saw NP naked and the defendant moving towards his room.[167] His evidence is consistent with him having interrupted a sexual encounter. AH’s evidence as to this incident might be undermined in more than one way. First, AH told me that he returned to the house with Rodney Thatcher. Mr Thatcher gave evidence, but not of any such incident. That said, on the evidence of AH, it is unclear if Mr Thatcher was in a position to see inside the house where AH said he saw both NP and the defendant. Second, NP said that sexual acts at Lindsay Street, beyond mere touching, took place in the bedroom. His evidence was not consistent with ever having been naked in the loungeroom with the defendant. These differences are relevant to the honesty and reliability of AH’s evidence.
[167] T222.
I am unable to determine which of AH or NP is more reliable about the above. I am nonetheless satisfied neither witness was dishonest.
The alleged incident was more than 15 years ago. After such a time, the risk of honest mistake is real, particularly when AH was, as I will find, the victim of substantial abuse himself. In such circumstances, and in the knowledge that NP was a young child who was a regular visitor to Lindsay Street whom, on the evidence, received considerable attention in the presence of AH, there is a risk that AH saw something short of what he described and has come to believe in the truth of what he told me. Given the passage of time and the repeated sexual abuse of NP over many years, it is possible that NP has forgotten the incident. It is possible, despite the recollection of AH, Mr Thatcher was not present, or if he was, was not in a position to see into any relevant part of the house.
Given how impressed I was with the evidence of AH and given I am satisfied beyond a reasonable doubt that NP was sexually abused at Lindsay Street (including while both the defendant and NP were naked) I am satisfied that either AH was mistaken, or NP was mistaken, in not recalling an incident in the loungeroom involving NP being naked. Given it is possible that AH was mistaken, I will bear this in mind in assessing the balance of his evidence. However, the significance of the possibility of AH being mistaken must be evaluated mindful of the fact that it is one thing to have a mistaken recollection about this incident, it is another thing for AH to be mistaken about sexual acts with the defendant. More particularly, to be mistaken as to there being at least two or more occasions of unlawful sexual acts within the particulars.
AH was admitted to hospital in April 2004, July 2004 and August 2005.[168] Facts were agreed as to what AH said during these admissions. As I understand the defendant’s submissions, what is recorded is not to be treated as evidence of the truth. It is only relied upon as potentially prior inconsistent statements. I turn to some of these statements.
[168] P18.
In April 2004, a note was made that AH said:[169]
He had a long history of emotional and physical abuse by his father.
[169] P18 [61.1].
In evidence, AH could recall talking about his father being emotionally abusive, but could not recall whether he said he had been physically abusive.[170] In my view, what AH said in evidence is not inconsistent with what he said in April 2004. He did not give evidence that his father was not physically abusive. He did not give evidence he did not say what was recorded. He said he could not recall. In any event, even if he was inconsistent, it does not impact in any material way on the reliability and honesty of what he told me about the conduct of the defendant.
[170] T249.
In July 2004, notes were taken by hospital staff as follows:[171]
Admits to AH. Male voice: Derogatory Persecutory + command to DSH and harm others. Admits to having acted on AH in the past.
Patient states that he has had experiences since age 7 of sharing his “head with another person” who constantly passes abusive/threatening remarks.
[171] P18 [62.1], [62.2].
AH was unable to recall[172] having said he had ‘shared his head with another person’, nor could he remember having said he had hallucinations and imagined himself talking to somebody. This has not caused me to doubt AH’s honesty and reliability about the conduct of the defendant. AH’s evidence was not a denial of having said these things in July 2004. He said he could not recall. In any event, if AH has been inconsistent, the inconsistencies are not material to AH’s honesty and reliability of what he told me about the conduct of the defendant.
[172] T249.
Although I do not understand the defendant to rely upon any of AH’s medical history for the truth of what is set out in hospital notes, out of an abundance of caution, I have assumed the notes establish AH has experienced thought disturbances. In addition to the July 2004 note above, AH was also admitted to hospital on 11 August 2005. During that admission, the following note was made:[173]
“Drug over dose. Took 8 Temazepam, 6 Panadol, 6 Sudafed. 3 Fluvoxamin @ 2000 hrs because couldn’t sleep. Denies suicidal. He has had hallucination. Imagined himself talking to somebody but realised that it is not real.”
[173] P18 [64.1].
I reject that AH might have imagined unlawful sexual acts with the defendant and then come to believe what he had imagined was true. There is nothing he said in evidence which left me with any impression that was a possibility. It would also not account for the admission to NP.
As I understand it, as with NP, due to the risk of being seen, the defendant also submitted I might doubt AH’s evidence of having been assaulted on a bus. I accept AH’s evidence the conduct occurred, including that the defendant stopped the conduct when any vehicle was approaching.[174]
[174] T216-217
Count 4 – conclusion
AH was also an impressive witness. He also gave his evidence in a straightforward way. I did not form any impression that he might have been dishonest. I have no doubt he believed in the accuracy of what he told me.
While I was impressed with the whole of the evidence of AH, there were aspects of his evidence I found particularly convincing. For example, AH told me about how the defendant would “usually” stop when he tried to make him stop when an object was put in his anus.[175] AH told me how he felt about the sexual acts. An aspect of his evidence was:[176]
[175] T199.
[176] T199.38-200.37.
Q.What did you think when this abuse was going on. What was going through your mind.
A.I was confused. I didn't know exactly why. I thought maybe I deserved it, you know, like I owed him.
Q.If we put the sexual abuse to one side for a moment, were there aspects about going to Geoff's house that you enjoyed.
A.Yeah.
Q.What are the aspects about going to his house that you liked.
A.He was nice. He would cook dinner for us sometimes and he was funny. Even my friends thought he was funny. We used to call him 'Swearing grandpa'. He'd let us play games and watch whatever we wanted on TV, play on the computer. It really was like an escape from my brother and sister because, once I was there, I was just, yeah, having fun.
Q.Were you made to feel important by him when you were at his house.
A.Yeah.
Q.And what about when you were at home with your mum, did you feel that same sort of importance or did you feel like you got the same type of attention at home.
A.It was a different attention that my mum gave me to what he gave me.
Q.Did you have a preference as to whether you would prefer to spend time at home or at the accused's house at Lomalinda Drive.
A.I liked going there because there was fun things to do but I didn't like the sexual stuff so that's why I was, like, so all over the place. Sometimes I wanted to go there - the small price to pay would be that - but it got to a while where I didn't want to go there anymore. No-one put two and two together, asked me what was wrong, and I felt bad because he needed help with Lady. She needed to be let out while he was at work, so I'd go to his house and let the dog out and then, you know, I'd just have fun there.
AH also told me about things he did to deter the defendant. An aspect of his evidence was:[177]
[177] T218.20-.38.
Q.Did you ever do anything to any of your clothing to try and make it less likely the accused could inappropriately touch you.
A.Yes.
Q.Can you tell us about what you did.
A.I would tie the drawstring on my trackpants really tight, I would suck my gut in, pull them really tight, do like a double knot, that way he couldn't just slip his hands in and he couldn't just pull the cord free, but he still managed to get in there.
Q.Did you do anything at any stage to your body itself to try and make it less likely or less appealing to the accused for him to inappropriately touch you.
A.Yes.
Q.Can you tell us about that please.
A.What I would do, I would look for lint, dog hair on the floor, I would roll it up into little balls, I would put that inside my foreskin. I was hoping that that would deter him, but it didn't work.
I am satisfied these things were not invented. This is so despite my uncertainty about whether he had resisted by touching doors. As I have said, it is possible that aspect of AH’s evidence was unreliable. That possibility is important to my evaluation of AH’s evidence. However, it has not caused me to doubt AH’s evidence that he participated in many unlawful sexual acts with the defendant. If he is mistaken, I am satisfied that it is something he has come to believe because of the extent of the sexual acts with him.
There is no dispute the defendant had the opportunity to commit the offence. AH regularly stayed at his home at Craigmore and also at Lindsay Street. I am satisfied the defendant encouraged his presence there by providing an environment which he knew AH enjoyed. For example, I am satisfied he allowed him to use the computer,[178] to play video games[179] and to watch television.[180] I am satisfied the defendant gave him alcohol on occasions as well as Phenergan.[181] I am unable to make any finding as to when that commenced. It is an agreed fact that the defendant was prescribed Phenergan in June 2003. There is also evidence it was available without prescription so the evidence does not exclude access to Phenergan before that time.
[178] T202.7.
[179] T180.
[180] T180.
[181] T194-195.
Relevant to my evaluation of the honesty and reliability of AH as to unlawful sexual acts is the admission to NP. As set out above, NP’s evidence was the defendant admitted sexual activity with AH, but gave no detail. I have accepted that evidence. The admission was made either at the same time, or shortly after, the defendant told NP that AH had made an allegation of having been touched, had got into drugs, had gone insane and that the case had been thrown out of court because there was not enough evidence.[182] If those things were said, and I am satisfied they were, they were untrue. There is no evidence AH had any contact with the police until contacted by a police officer on 3 November 2018. It is unnecessary to decide why the defendant made the comment he did when it was false. I simply observe that it is possible the defendant was aware AH had been admitted to the Women’s and Children’s Hospital in April 2004 and/or the Lyell McEwen Hospital in July 2004. Although the defendant may have moved from Lindsay Street in the latter part of 2003, there was evidence the defendant returned a ‘few times’ after having moved out. On one occasion, he spoke to GH and AH about a conflict between them.[183] I accept that evidence. There was no evidence as to precisely when these visits were. However, there is some evidence that the defendant retained a connection to Lindsay Street as late as September 2004. The bond for that property was not returned to him until 17 September 2004.[184] AH also told me that he was using drugs while living with the defendant at Lindsay Street. It is likely that at least one of AH’s admissions to hospital became known to the defendant after he moved from Lindsay Street and he then used some of that knowledge in his discussion with NP. While the defendant’s suggestion to AH that proceedings had been discontinued was not true, it may reflect the defendant having contemplated AH might reveal what had occurred at some point in time. For example, to a person at a hospital, or elsewhere, and the defendant contemplating in advance what his response might be.
[182] T317.
[183] T229.
[184] P1 [19].
It is unsurprising the defendant might make an admission to NP. First, NP raised the topic of AH and whether there had been relevant conduct with him. Second, I am satisfied the defendant trusted NP. He was abusing NP and he had not made any disclosure to this point. The defendant must have known that. I am satisfied the defendant admitted sexually abusing AH. Because of that admission, I am satisfied the defendant had a sexual interest in AH and had acted upon that interest. That interest and having acted upon it, does not, of itself, prove count 5, nor, of itself, prove any particular in count 5. The admission was not specific enough to be used in such ways. The admission cannot be used to reason the defendant was a bad person and for that reason more likely to be guilty of count 5. However, the admission is a piece of evidence which is consistent with AH’s evidence of sexual contact with the defendant. I am satisfied this use of the defendant’s sexual interest in AH and him having acted on that interest, substantially outweighs any prejudicial effect it may have upon the defendant and has strong probative value having regard to the issue of whether the defendant committed any unlawful sexual act with AH.[185] In evaluating AH’s evidence, the existence of the proclivity is also evidence available to me in evaluating the honesty and reliability of AH’s evidence of unlawful sexual acts with the defendant.
[185] Section 34P(2)(a) and (b) of the Evidence Act, 1929.
Earlier in these reasons I identified aspects of AH’s evidence which conflict with other evidence I prefer. I have also identified that AH is mistaken about some matters. Some of those matters are important. In addition, I will treat his failures to give evidence of every particular within count 4 as inconsistent statements. Inconsistent statements are relevant to both honesty and reliability. These matters must be evaluated mindful of the onus of proof and the disadvantages encountered by the defendant in testing the evidence. They must also be evaluated mindful of the positive impression AH made when he gave his evidence, the admission to NP, the proclivity and that not every aspect of AH’s evidence must be accepted beyond a reasonable doubt. In this case, the inconsistent statements and differences in the evidence are consistent with a witness whom I am satisfied beyond a reasonable doubt was subjected to repeated sexual acts over a long period not always recalling events in the same way and the natural differences which will exist when honest witnesses recall events which occurred many years ago.
I am satisfied beyond a reasonable doubt the defendant engaged in many unlawful sexual acts with AH between about March 1998 and June 2004. AH was under the age of 17 years throughout that period. I am satisfied beyond a reasonable doubt that the unlawful sexual acts in that period included:
(a) Touching AH’s penis on more than one occasion;
(b) Performing fellatio upon AH on more than one occasion;
(c) Inserting an object into AH’s anus on more than one occasion;
(d) Inserting a finger into AH’s anus;
(e) Masturbating in AH’s presence on more than one occasion;(f)Causing AH to insert his penis into the defendant’s anus;
(g) Causing AH to perform fellatio upon the defendant;
(h) Causing AH to touch the defendant’s penis; and(i)Attempting to place his penis into AH’s mouth.
I find the defendant guilty of count 4.
I have arrived at that verdict without using GH’s evidence of counts 1‑3, nor the uncharged act in the bed with GH.
Conclusion
I find the defendant guilty of counts 1 to 5 inclusive.
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