R v O, B - [2014] SADC 12

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v O, B
Criminal Trial by Judge Alone
[2014] SADC 12
Judgment of His Honour Judge Soulio
7 February 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone. Accused charged with 11 sexual offences involving six complainants (one count of buggery, three counts of persistent sexual exploitation, one count of persistent sexual abuse, two counts of unlawful sexual intercourse, one count of attempted rape and four counts of indecent assault) heard together.
Verdicts:
Not Guilty of Counts 1 and 2
Guilty of Counts 3, 4 and 5
Not Guilty of Counts 6, 7, 8, 9, 10 and 11
Criminal Law Consolidation Act 1935 (SA) ss 48, 49, 50, 56, 69, 70, 270A, 278; Evidence Act 1929 (SA) s 34; Juries Act 1927 (SA) s 7, referred to.
R v Dossi (1918) 13 Cr App R 158; R v Stock [2011] SADC 177; R v Seigneur (2009) 103 SASR 207; Pfennig v The Queen (1995) 182 CLR 461; Hoch v The Queen (1988) 165 CLR 292; R v C, CA [2013] SASCFC 137; Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 22 A Crim R 375; R v N, SH [2010] SASCFC 74; Perry v The Queen (1982) 150 CLR; Phillips v The Queen (2006) 225 CLR 303; R v Maiolo (No 2) (2013) 117 SASR 1; R v S, DD (2010) 109 SASR 46; R v England (2013) 116 SASR 589; R v Davis (1995) 81 A Crim R 156; R v Liddy (No 4) [2001] SASC 152; R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995); Crampton v The Queen (2000) 206 CLR 161; R v Stock [2011] SADC 177, considered.

R v O, B
[2014] SADC 12
Background
Counts 1 and 2 – Complainant NP
Count 3 – Complainant SO
Count 4 – Complainant BK
Count 5 – Complainant GK
Counts 10 and 11 – Complainant MB

The Charges
Severance
Cross-Admissibility
Rulings
Concoction/Contamination
The Law
General Directions

Elements of the Offences
Count 1 – Indecent Assault of a Male Person
Count 2 – Buggery
Counts 3, 4 and 5 – Persistent Exploitation of a Child
Counts 10 and 11 – Attempted Rape and Indecent Assault

Complaint Evidence
Delay in Complaint

Forensic Disadvantage
Uncharged Acts
Lies Direction
Assessment of Witnesses
Evidence of Complainant NP
Background
Relationship with the Accused
Activities
The Accused’s Motor Vehicles
Count 1- Indecent Assault of Male Person
Count 2 - Buggery
Uncharged Acts
Uncharged Acts involving Alcohol
Living with the Accused
NP’s Continuing Friendship With the Accused
Complaint Evidence
Discussion of Allegations with Others - Contamination
Cross-Examination

Evidence of MP
Evidence of the Complainant SO
Background
Speedway
Bicycle Shops
Count 3 – Persistent Exploitation of a Child
Alcohol
Complaint Evidence
Confrontation with the Accused
Contamination
Cross-Examination
Suggestion of Motive

Evidence of the Complainant BK
Background
Bicycle Shops
Accused’s Motor Vehicles
Activities
Count 4 – Persistent Exploitation of a Child
Alcohol
Marijuana
Glue
Complaint Evidence
Confrontation with the Accused
Discussions of Allegations with Others – Contamination
Cross-Examination
Bicycle Shops
Contact With the Accused After 1994
Alcohol and Marijuana
Sexual Abuse
Complaint Evidence
Restraining Order for Chasing ST
D
Conversation with SO

Evidence of J
Camping
Motorcycles
The Accused’s Employment
Relationship with the Accused
Complaint Evidence
Cross-Examination

Evidence of the Complainant GK
Background
Count 5 – Persistent Exploitation of a Child
Complaint Evidence
Discussions of Allegations - Contamination
Cross-Examination

Evidence of the Complainant MB
Background
Count 11 – Indecent Assault
Complaint Evidence
Discussions of Allegations with Others
Cross-Examination
Evidence of Mrs B
Complaint Evidence
Cross-Examination

Evidence of Detective Bean
Cross-Examination

Evidence of Detective Tromp
Cross-Examination

Defence Evidence
Evidence of Dr Ducrou
Evidence of the Accused
Juventus Motorcycle Club
Motor Vehicles
Boats
Motorcycles
The Accused’s Addresses
The Accused’s Places of Employment
Accused’s Shoulder Operation
Accused’s Evidence in Relation to Complainant N
Relationship with J
Accused’s Evidence in Relation to Complainant SO
Accused’s Relationship with his Father
Motive
Accused’s Evidence in Relation to Complainant B
Accused’s Evidence in Relation to Complainant GK
Fruit Picking Trips
Accused’s Evidence in Relation to Complainant MB
Accused’s Evidence in Relation to the Trial Involving ST
Allegations
Cross-Examination
Interview With Police in 1985 in Relation to Allegations by MB
Mechanical Work
Sexual Abuse
Complainant BK
Complainant SO
Relationships
Complainant GK
Complainant NP
Letters from England
Glue
Fruit Picking Trip

Other Evidence in the Defence Case
Evidence of MA
Evidence of K
Cross-Examination

Evidence of MC
Addresses of Counsel
Prosecution
Defence
Discussion
Findings
Findings as to Counts 1 and 2
Findings as to Count 3
Findings as to Count 4
Findings as to Count 5
Findings as to Count 10
Findings as to Count 11
Verdict
Background

The accused is now 74 years old. As a young man in his 20s he had an interest in motorcycles, and became a successful speedway competitor. Through his connection with motorcycles, and bicycle racing, he met a number of young boys. He married a woman who had two young sons. His stepsons, and four other boys, alleged that he sexually abused them.
The accused is charged on a single Information dated 3 September 2013 with 11 counts of having sexually abused young males over a period from the early 1960s through to the mid 1980s.
The accused denied the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
During the course of the trial, the prosecution conceded there was no case to answer in relation to Counts 6, 7, 8 and 9 involving the complainant CS. I therefore acquitted the accused of those counts. I turn to the other counts.
Counts 1 and 2 – Complainant NP
The complainant NP met the accused in the early 1960s, when they each lived on Carrington Street, Adelaide. The accused later moved to Unley and NP continued to see the accused. NP alleged that between 1961 and 1963, when he was between eight and 11 years old, he was sexually abused by the accused. On one occasion NP alleged that in a shed at the accused’s house at Unley the accused indecently assaulted NP by putting his hand down NP’s pants and fondling NP’s genitals. NP alleged on another occasion, constituting Count 2, the accused took him for a drive in the Adelaide Hills; and they then walked to a train tunnel and inside the tunnel the accused inserted his penis into NP’s anus.
Count 3 – Complainant SO
The complainant SO was the accused’s stepson. SO alleged that between 1967 and 1973, when he was between three and 10 years old, the accused sexually abused him when they went camping at Aldinga Beach and Port Gawler and at the family house when they lived at Valley View, by inserting the accused’s penis into SO’s anus and by performing an act of fellatio on SO.
Count 4 – Complainant BK
The complainant BK is the younger brother of the complainant SO. The accused was also BK’s stepfather. BK alleged that between 1968 and 1980, when he was between two and 15 years old, he was sexually abused by the accused when they went camping at Aldinga Beach, at the accused’s workplace in Windsor Gardens, and at the family house in Valley View, by the accused inserting his penis into BK’s anus, and placing his penis between BK’s buttocks.
Count 5 – Complainant GK
During his childhood, the complainant, GK, lived on the same street as the accused in Valley View. GK alleged that between 1980 and 1984, when he was between six and 12 years old, he was indecently assaulted by the accused at a number of places including the accused’s workplace, the accused’s home, at the accused’s bicycle shop in Holden Hill, and on the accused’s boat, at Berri, by placing his penis between GK’s buttocks and rubbing until the accused ejaculated.
Counts 10 and 11 – Complainant MB
The complainant MB, alleged that between 1979 and 1982, when he was between 11 and 15 years old, he accompanied the accused on a trip to Berri for a bicycle racing competition. MB alleged that in a motel room in Berri the accused attempted to engage in anal sexual intercourse with MB, without consent, and, in the alternative, indecently assaulted him.
The Charges
The offences alleged against the accused are:
First Count
Statement of Offence
Indecent Assault of a Male Person. (Section 70(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] between the 1^st day of January 1961 and the 31^st day of December 1963 at Unley, indecently assaulted [NP], a male person.
Second Count
Statement of Offence
Buggery. (Section 69 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] between the 1^st day of January 1961 and the 31^st day of December 1963 at Belair or another place in the said State, committed an act of buggery upon [NP], a male person under the age of 12 years.
Third Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation, 1935).
Particulars of Offence
[The accused], over a period of not less than three days between the 1^st day of January 1967 and the 31^st day of December 1973 at Aldinga, Port Gawler and Valley View, committed more than one act of exploitation of [SO], a person under the age of 17 years, by inserting his penis into [SO’s] anus, fondling his genitals and performing an act of fellatio on [SO].
Fourth Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Ibid)
Particulars of Offence
[The accused] over a period of not less than three days between the 1^st day of January 1968 and the 31^st day of December 1980 at Aldinga, Windsor Gardens and Valley View, committed more than one act of exploitation of [BK], a person under the age of 17 years, by inserting his penis into [BK’s] anus, and by placing his penis between [BK’s] buttocks.
Fifth Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Ibid)
Particulars of Offence
[The accused] over a period of not less than three days between the 1^st day of January 1978 and the 31^st day of December 1983 at Windsor Gardens, Valley View, Holden Hill and Berri, committed more than one act of sexual exploitation of [GK], a person under the age of 17 years, by indecently assaulting him by placing his penis between [GK’s] buttocks and rubbing until he ejaculated.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] between the 1^st day of January 1984 and the 31^st day of December 1985 at Holden Hill, had sexual intercourse with [CS], a person aged between 13 and 15 years, by inserting his penis into [CS’s] anus.
Seventh Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[The accused] between the 1^st day of January 1984 and the 31^st day of December 1985 at Holden Hill, had sexual intercourse with [CS], a person aged between 13 and 15 years, by inserting [CS’s] penis into his mouth.
Eighth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] between the 1^st day of January 1984 and the 31^st day of December 1985 at Valley View, indecently assaulted [CS], a person aged between 13 and 15 years.
Ninth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
[The accused] between the 1^st day of January 1984 and the 31^st day of December 1985 at Valley View, indecently assaulted [CS], a person aged between 13 and 15 years.
Tenth Count
Statement of Offence
Attempted Rape. (Section 48 and Section 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] between the 23^rd day of August 1980 and the 23^rd day of August 1984 at Berri or another place in the said State, attempted to have anal sexual intercourse with [MB], without his consent.
Eleventh Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
The accused between the 23^rd day of August 1980 and the 23^rd day of August 1984 at Berri or another place in the said State, indecently assaulted [MB].
Although a range of dates in relation to each offence is alleged in the Information, the exact date is not an essential ingredient of any of the particularised acts or charged offences. The act or occasion alleged must be identified and I must be satisfied the specific act (or acts) charged is proven beyond reasonable doubt.[1]
[1] R v Dossi (1918) 13 Cr App R 158 at 159–60.
Severance
NP, GK and MB all came to know the accused through the local neighbourhood and their interest in BMX bicycles and motorcycles. The complainants SO and BK, in addition to having an interest in such activities fostered by the accused, were the stepsons of the accused.
The prosecution sought to lead evidence from all six complainants on the basis that the evidence met the cross-admissibility test.
Prior to the trial commencing, the accused, pursuant to Rule 15, made an application for an order that there be a separate trial in respect of Counts 1 and 2 relating to the complainant NP. The accused conceded that the remaining counts were properly joined pursuant to s 278 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).[2]
[2] Applicant’s outline of submissions on severance dated 31 August 2013.
Counsel for the accused submitted that the evidence of the complainant NP showed no more than the existence of a criminal propensity or disposition on the part of the accused, and was inadmissible in relation to the other complainants SO, BK, GK, and MB, for the following reasons:
·NP’s evidence related to the allegations involving him, and not the other complainants, and conversely, the other complainants were not going to give evidence pertaining to allegations made by NP.
·The alleged period of offending relating to NP was particularised as being between 1 January 1961 and 31 December 1963, a time period which did not overlap with any time periods relating to the other complainants.
·The alleged sexual offending against NP was said to have commenced when NP was about nine or 10 years old and ceased when he was about 14 years old whereas the various ages of the remaining complainants at the time of the alleged sexual offending commenced between the ages of three and a half years old to 14 years old, and ceased between the ages of 10 and 14 years old.
·There was no suggestion that NP was present during any of the sexual offences alleged to have been committed against the other complainants.
·There were no allegations that intoxicants such as alcohol and glue were involved in the alleged sexual offences against NP, whereas some of the other complainants make such allegations.
·The locations and circumstances of the alleged offending against NP were different to that of the other complainants.
·The continued social relationship between NP and the accused was different to the situation with other complainants.
Cross-Admissibility
Section 278 CLCA applies, and provides:[3]
(1)    Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)    Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a)Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a)     subject to paragraph (b), those counts are to be tried together;
(b)     the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.
[3]    R v Seigneur (2009) 103 SASR 207.
The effect of s 278(2a) is that charges, once joined on the same Information, are only severed where evidence relating to the charges is not cross-admissible.
The approach to be taken was usefully summarised in R v Stock as follows:[4]
Section 278(2a) is invoked because “two or more counts charging sexual offences involving different alleged victims are joined in the same information”. I may order a separate trial (s (2a)(b)) of a count relating to a particular complainant if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different complainant.
…
In determining the question of admissibility I am to have regard to the matters set out in s 278(2a)(c). The evidence is admissible in relation to another count if it “has a relevance other than mere propensity”.
…
In determining the question of admissibility I am to have regard to the matters set out in s 278(2a)(c). The evidence is admissible in relation to another count if it “has a relevance other than mere propensity”.
…
This issue was discussed briefly in R v N, SH. On the facts of that appeal it was not strictly necessary for the Court to analyse the amendments. However, the Court noted that s 278(2a)(c)(i) did not “abrogate the general discretion to exclude evidence where the probative value is slight and is outweighed by the impermissible prejudice”. The Court noted however, as the section itself states, that a judge is not to have regard to, in assessing the question of admissibility, whether or not there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant or whether the evidence may be the result of collusion or concoction. (citations omitted)
[4] R v Stock [2011] SADC 177 per Lovell DCJ at [19], [21]-[23].
In determining the question of admissibility s 34P Evidence Act 1929 (SA) applies, which relevantly provides:
(1)    In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)    Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)    In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)    Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)    The court may, if it thinks fit, dispense with the requirement in subsection (4).

In considering the admissibility of evidence I am no longer required to have regard to the common law tests set out in Pfennig,[5] and in Hoch.[6] It is no longer necessary to find that there is no other rational view of the evidence that is consistent with the innocence of the accused before I can safely conclude that the probative force of the evidence outweighs its prejudicial effect (“the Pfennig test”). It is also no longer necessary for me to consider that there was no reasonable chance of concoction between the complainants for the evidence to be admissible (“the Hoch test”). That is now a factual question.[7] Section 34S Evidence Act provides:
Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following:
(a)there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant;
(b)     the evidence may be the result of collusion or concoction.
[5]    Pfennig v The Queen (1995) 182 CLR 461.
[6]    Hoch v The Queen (1988) 165 CLR 292.
[7]    R v C, CA [2013] SASCFC 137 per Kourakis CJ at [57].
As stated in R v N, SH: “other than those two caveats, the law as stated in Sutton, De Jesus and Hoch applies.”[8]
[8] R v N, SH [2010] SASCFC 74 at [46].
In R v M, BJ, Vanstone J said:[9]
The exclusionary rule is that “evidence that reveals that the accused is a person of bad character is not admissible if it proves no more than that he or she has a general disposition or propensity to commit crime or crime of a particular kind”: Pfennig v The Queen (1995) 182 CLR 461 at 512 per McHugh J, citing R v Makin (1893) 14 LR (NSW) 548; [1894] AC 57. However, similar fact evidence or propensity evidence may be relevant and admissible because of the light it throws on any of a number of issues in a case. For example, it might assist in proving identity or intention, or in disproving accident or mistake or innocent association: Thompson v The Queen (1989) 169 CLR 1 at 16.
The probative value of such evidence might arise from the fact that it bears striking similarities to the allegations made in relation to another offence for which the accused is on trial. But equally its strength might lie in the “‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ [which it reveals] such that it raises, as a matter of common sense and experience, the objective improbability if some event having occurred other than as alleged by the prosecution”: Hoch v The Queen (1988) 165 CLR 292 at 294-295. The process of reasoning involved is that of “admeasuring the probability or improbability of the fact or event in issue, … given the fact or facts sought to be adduced in evidence”: Martin v Osborne (1936) 55 CLR 367 at 385 per Evatt J. To put it slightly differently, there needs to be such a nexus between the various sets of allegations that they must either all be true or have arisen from “a cause common to the witnesses or from pure coincidence”: Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 444 per Lord Wilberforce.
The sole criterion for the admission of the evidence is the strength of its probative force, rather than any judgment that one or more of the labels mentioned above is apt to fit it: Hoch (at 294). The degree of probative force required has been described as such that to exclude the evidence would be “an affront to common sense”: Boardman per Lord Cross of Chelsea (at 456); and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen (1982) 150 CLR 580 at 609 per Brennan J; Phillips v The Queen (2006) 225 CLR 303 at 320 per the court. So far as it goes, this summary is unaffected by the new subsection.
[9] R v M, BJ (2011) 110 SASR 1 at [26]-[28]. Note: the Court in R v M, BJ considered s 278 (2a)(c) CLCA which was repealed and replaced. Peek J in R v Maiolo (No 2) (2013) 117 SASR 1 at [131] said that the intention and effect of the amendment was to secure a uniform evidentiary test that applies to all aspects of trials of all offences, including those relating to determining applications for severance of counts. His Honour considered the same interpretation of s 278 (2a)(c) was also applicable to the effect of the new Evidence Act provisions.
The issue of cross-admissibility of evidence of offending against a complainant, upon the trial of charges of offending against other complainants, was recently considered in R v C,CA,[10] where Kourakis CJ said:
The permissible forms of reasoning allowed by s 34P of the Evidence Act are, speaking broadly, twofold. First, if the discreditable conduct evidence is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, it is permissible to use that evidence as an item of circumstantial evidence indicating guilt. The second form of reasoning is improbability reasoning which has a probative force independent of any proclivity. The improbability can arise from a wide range of circumstances and in many different ways. Common examples include “cauliflower ear” similarity in modus operandi, coincidental presence or involvement in the place or circumstances of the crime for which an innocent explanation is improbable, and the improbability of complainants independently fabricating similar accounts (citations omitted).
[10] R v C, CA [2013] SASCFC 137 at [77].
The evidence of one complainant in relation to another complainant is admissible if it has relevance other than mere propensity. The high probative value of such evidence must clearly transcend its prejudicial effect.[11] The strength lies in the fact that the evidence reveals “striking similarities,” “unusual features,” “underlying unity,” “system” or “pattern” such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.[12]
[11] Perry v The Queen (1982) 150 CLR 580 p 609 per Brennan J; Phillips v The Queen (2006) 225 CLR 303 p 320 per the Court.
[12] Hoch v The Queen (1988) 165 CLR 292 at [294-295]; R v M, BJ (2011) 110 SASR 1 at [27] as cited in R v Maiolo (No 2) (2013) 117 SASR 1 at [133].
The prosecution case was that the evidence led in relation to each count was admissible in proof of the other. Counsel contended that the evidence was admissible on the basis of an underlying unity which revealed as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the prosecution.
The prosecution relied on the following features to establish an “underlying unity” or “pattern”:
·The accused was able to position himself as a role model or even father figure for the boys, and as a result had access to them with the consent of their parents.
·The complainants were young boys, the ages of whom varied due to the opportunistic contact.
·Each of the complainants’ relationships with the accused centred on motorcycles and/or bicycles, through which the accused created activities with the complainants which they enjoyed and did not engage in elsewhere or with their families. The complainants were involved in BMX, motocross and Speedway events. The accused groomed each complainant and engaged with them in such activities for a period before attempting any sexual contact.
·Each of the complainants spent time alone with the accused. These incidents included NP’s excursions, trips alone with GK and taking him to his place of employment, an automotive parts business, and his bicycle shop, and taking MB on a trip to Berri. The extra interest in the stepsons SO and BK, is obvious and explicable given the accused’s relationship with them.
·Each of the complainants tells of being abused on an outing which was an opportunity for abuse created by the accused for that purpose. NP was taken on drives to Belair and other places. SO and BK went on camping trips. BK was taken to the accused’s workplace. GK was taken on drives, on the boat, to Berri, to the accused’s workplace or to the bicycle shop. MB was taken to Berri. The accused created opportunities to access these boys either alone, or only in the company of other alleged victims.
·All complainants, with the exception of MK, alleged being abused by the accused at his home, when they were alone. For NP and GK, there does not appear to be any innocent reasons to have them alone in the accused’s home.
·Both BK and GK alleged abuse in the accused’s workplace after hours and involved the use of glue.
·All complainants alleged ‘anal sex’ of some kind. All, with the exception of GK, alleged anal penetration, or attempted anal penetration.
·All complainants, with the exception of GK, alleged some touching of the penis by the accused. GK’s allegation was that he was made to play with himself. Once the accused had groomed and commenced the ‘anal sex,’ it became a regular occurrence. MB was the exception in that he resisted and declined any further advance from the accused.
·All of the complainants alleged being given alcohol at least once prior to being sexually abused by the accused. NP, SO and BK knew that the accused did not drink. For three people to have known this and still allege they were given alcohol cannot be explained by coincidence.
·BK, GK and MB alleged that, preceding the abuse, the accused gave them the same type of glue to sniff, with the same instructions and in the same lunch-sized, clear, plastic bag. All three complainants described the glue as being yellow in colour. The glue was described by the particular brand “Quick Grip,”[13] and BK and MB similarly described the tube of the glue.
·The accused made admissions about the sexual abuse to NP, SO and BK and the admission to his former wife, J, also provides support. The relevance of the admissions on each occasion is that the accused did not deny the offending and sought to justify it. He justified it as affection, as something that had happened to him, something that everyone does, and something that should be gotten over. All three complainants described a similar reaction from the accused when confronted.
[13] Whilst MB said it was Quick Grip or Tarzan’s Grip, his earlier statements to police show he alleged Quick Grip then. See Exhibit P17.
The prosecution did not suggest that all features were present in relation to each complainant, but rather submitted that there were common features as between the sexual offending committed against each complainant, which taken as a whole, disclosed a nexus or underlying unity in the commission of the offences by the accused such as to render the evidence relating to each count cross-admissible in relation to every other count.
The defendant submitted that there were sufficient differences between the allegations of the complainant NP and the remaining complainants to negate any suggestion of an underlying unity being established.
Rulings
At the commencement of the trial, having considered the submissions of both counsel, and applying s 278(2a) CLCA, ss 34P and 34S Evidence Act, I refused the application to sever Counts 1 and 2. I found that there was an underlying unity in the evidence sufficient to make the evidence of the complainants cross-admissible.
As the evidence of each of the complainants unfolded during the course of the trial, each of the complainants alleged being given alcohol by the accused, including the complainant NP. At the conclusion of the trial, defence counsel did not make further submissions in relation to similar fact evidence, and conceded that the prosecution had made out, through the evidence of the complainants, that five of the complainants alleged having been given alcohol by the accused, and three alleged having been given glue by the accused.[14] Defence counsel submitted that alcohol was not used on every single occasion or glue used on every single occasion.
[14] T 1281.
I bear in mind that the prosecution and the accused are entitled to a separate consideration of each of the counts, in light of the evidence that applies to it. That is unless I am satisfied, beyond a reasonable doubt, by the evidence relating to a particular count, that the accused is guilty of that count, then he must be found not guilty. Depending upon my view of the evidence I may find the accused guilty of all counts, not guilty of all counts, or guilty of some and not guilty of others. Further, merely because I might find the accused guilty of one count, I should not use that as indicating any propensity of the accused towards such offending in considering whether the other counts have been proved beyond reasonable doubt.
I propose to deal with the evidence on the basis that I would have to be satisfied beyond reasonable doubt of the evidence of one complainant before I could use that evidence in relation to any count charged in relation to another complainant.
Ultimately, the question of cross-admissibility may play little part in my deliberation, as, if I accept the evidence of a particular complainant as to the elements of the offence directly relating to that complainant, and there is no rational explanation consistent with anything other than the guilt of the accused, then I would find the accused guilty of that count in any event.
Having considered the declarations and the helpful submissions of both counsel, I refused to exercise my discretion to order the severance of the counts as submitted by the defendant. I found that there was an underlying unity or pattern in the evidence sufficient to make the evidence of the complainants cross-admissible.
Whether in due course the evidence, once admitted, could be used as suggested by the prosecution depended upon the way in which such evidence unfolded during the trial.
Concoction/Contamination
It is not for the accused to prove that concoction, collusion or contamination of evidence occurred. It is for the prosecution to prove beyond reasonable doubt that it did not occur.
Counsel for the accused did not put to the complainants NP, SO, BK or GK that they had concocted their evidence.
It was put to the complainant MB however, that MB had concocted his allegations, in the sense of fabricating an account of events, to support his friend ST who had previously made allegations of sexual abuse against the accused in the 1980s. MB had first made allegations against the accused in 1985. However, the resulting charges did not proceed to trial for reasons personal to MB.[15] Counsel for the accused suggested there had been contamination of evidence in the original investigation of MB’s matter.
[15] T 1258.
Counsel for the DPP conceded that MB had had the opportunity to speak with ST, if he chose to, prior to making his first statement in the 1980s, but submitted that that did not mean that he had done so, and that there was ample evidence to suggest that MB had no motive to, and had not made false allegations.
Counsel for the DPP submitted that it was unlikely that the allegations were made to support ST, or that MB would continue the lie in a trial where ST was no longer involved. Counsel for the DPP submitted that the defence suggestion that Detective Bean, who had investigated MB’s original allegations, somehow motivated false allegations should be rejected, as nothing in the evidence supported that suggestion.[16]
[16] The defence also suggested motives for some of the witnesses to by lying. I deal with those matters later in these Reasons.
The investigation which led to the present charges was conducted by one Detective Tromp. Counsel for the DPP submitted that none of the complainants approached police about the allegations, except MB who first made an allegation to police in the 1980s. All of the complainants were contacted effectively “out of the blue” as Detective Tromp’s investigation unfolded. Such passive inclusion in the case is irreconcilable with any complainant harbouring ill will or having a vendetta such that they would take the significant step of making and persisting with false allegations.
The lack of complaint to the police by the complainants is also relevant to disprove concoction. The only contact, if any, between the complainants was in the distant past, with the exception of SO and BK who are brothers. A motivation to mischievously share false stories in the past is again irreconcilable with the lack of any complaint to police until contacted by Detective Tromp in recent years.
Detective Tromp’s evidence as to the way the investigation unfolded is fundamental to both the credit of the complainants generally, and the issue of concoction and underlying unity.
I have considered the detailed submissions, and the evidence going to the issue of collusion or contamination, to which I will refer later. I am satisfied beyond reasonable doubt that there has been no concoction, collusion or contamination of the evidence of the complainants in the current trial, with the exception of the evidence of MB to which I will refer later.
The Law
General Directions
It is necessary to give consideration to the elements of the offences and to the onus of proof. It is necessary to consider the warning which is required given the delay in bringing attention to the matters the subject of the present trial; and the use to be made of the initial complaints by NP, SO, BK, GK and MB. It is also necessary to consider the relevant onus of proof in relation to evidence of uncharged acts, and the use to be made, if any, of such acts if proved to the requisite degree.
The accused is presumed to be innocent unless, and until, his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. In relation to the charges I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied before I could convict the accused of any count on the Information that the prosecution has proved beyond reasonable doubt each element of the charge. Where I refer to something being proved, or being satisfied of, or accepting something, I shall mean beyond reasonable doubt.
It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge. I also bear in mind that the complainants, and the accused, are entitled to a separate consideration of the appropriate verdict in relation to each count.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
Elements of the Offences
Count 1 – Indecent Assault of a Male Person
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove each of the elements beyond reasonable doubt. The first element which must be proven is that there was a deliberate application of force or violence to another person. Any touching or handling is sufficient. There need not be any great application of force.
In relation to Count 1, the act alleged to constitute the indecent assault is that the accused fondled NP on the penis. NP was, at the time of the alleged offence, under 17 years of age. Pursuant to s 70(2) CLCA, as it then stood between 1961 and 1963, NP could not have consented to the act.

If I am satisfied beyond reasonable doubt that the incident occurred, I would find it proven that the assault occurred in circumstances of indecency.
Count 2 – Buggery
The offence of buggery was committed if it is proven beyond reasonable doubt that the accused intentionally inserted his penis into NP’s anus. Age and consent are not relevant to the elements of this offence. Section 69 CLCA at the time provided: [17]
Any person convicted of buggery, committed either with mankind or with an animal, shall be liable to be imprisoned for any term not exceeding ten years, and may be whipped.
Counts 3, 4 and 5 – Persistent Exploitation of a Child
[17] As the Act stood at the time of the alleged offence.
The elements of persistent exploitation of a child are:
1That the accused was an adult;
2That the accused committed more than one act of sexual exploitation. An act of exploitation is an act which if it were able to be properly particularised could be the subject of a charge of a sexual offence;
3That the acts must have occurred over a period of not less than three days;
4That the acts must have occurred in respect of a child under the prescribed age. The prescribed age is 17 years.
An act of sexual exploitation is defined to include sexual offences under the current or past criminal law.[18]
[18] Sections 50(2) and 50(7) CLCA.
In relation to Count 3 and the complainant SO, the acts of sexual exploitation alleged were acts of buggery and indecent assault, the elements of which are discussed above.
In relation to Count 4 and the complainant BK, the acts of sexual exploitation alleged were acts of buggery, as the offence was defined prior to 9 December 1976. After that date, following legislative amendment, buggery became the offence of unlawful sexual intercourse. From 9 December 1976, the definition of ‘sexual intercourse’ included the ‘introduction of the penis of one person into the anus of another.’
The alleged incidents falling short of full anal penetration amount to the offence of indecent assault. From 2 October 1975, a person under the age of 17 years could not consent to an indecent assault, pursuant to s 57(2) CLCA as it stood in 1975.
In relation to Count 5 and the complainant GK, the acts of sexual exploitation alleged are multiple acts of indecent assault, the elements of which are discussed above.
Counts 10 and 11 – Attempted Rape and Indecent Assault
Counts 10 and 11 are charged in the alternative and relate to the one incident MB alleged occurred. Count 10 was particularised as having occurred between 23 August 1980 and 23 August 1984. The evidence of MB left open as a reasonable possibility that the offence could have occurred at any stage within that period.
Prior to 11 February 1982, s 48 CLCA provided for the offence of rape and s 48(2) the offence of attempted rape.
On 11 February 1982, CLCA was amended. Section 48(2) was repealed. Section 270a was enacted and provided:
Attempts
270a.(1) Subject to subsection (2), a person who attempts to commit an offence (whether the offence is constituted by statute or common law) shall be guilty of the offence of attempting to commit that offence.
(2)Where under a provision of any other Act, or any other provision of this Act, an attempt is constituted as an offence, this section-
(a) does not apply in relation to that offence;
and
(b) does not operate to create a further or alternative offence with which a person who committees the former offence might be charged.
Counsel for the DPP conceded that it could not be proved whether the offence against MB occurred before or after 11 February 1982, and on that basis, conceded that he could not prove that particular offence, and that the accused should be acquitted of Count 10. The DPP submitted that I should therefore only consider Count 11, the offence of indecent assault. The elements of indecent assault are discussed above. Pursuant to s 57(2) CLCA, a person under the age of 17 could not consent to an act of indecent assault.
Complaint Evidence
Section 34M of the Evidence Act applies, and relevantly provides:[19]
[19] R v Seigneur (2009) 103 SASR 207.
(1)    This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i)     to inform the jury as to how the allegation first came to light; and
(ii)    as evidence of the consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)     there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)     In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police Mr or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
Complaint evidence must relate to the alleged offences.[20] A complaint does not necessarily have to refer to the details of the occasion charged in the count. But where a general complaint of sexual abuse is led in evidence for the purpose of establishing consistency of conduct, it must be established that what was said encompasses the charged count.[21]
[20] See R v S, DD (2010) 109 SASR 46 (per Duggan J), R v Maiolo (No 2) (2013) 117 SASR 1 (per Peek J).
[21] See R v S, DD (2010) 109 SASR 46 at [4].
The DPP sought to lead evidence of the initial complaint by the complainants to establish when the allegations first came to light, why disclosure was made at the relevant time and not at an earlier time, to show consistency of conduct, and to disprove any concoction between the complainants that might be said to have occurred.
It was ultimately agreed that rather than ruling on the admissibility of the complaint evidence prior to trial I would hear the evidence said to constitute complaint evidence, and rule on its admissibility at the conclusion of the trial.
Counsel for the accused argued that the initial complaints in relation to NP, SO, BK and GK did not amount to complaint evidence as their complaints did not fall within the definition of an initial complaint pursuant to s 34M(3) Evidence Act.
The offences against the complainant NP are alleged to have occurred some 50 years ago. It is alleged that the first time he raised the matter was some 20 years ago, when he told his wife, MP, that he had been abused by the accused.
The offence against the complainant SO is alleged to have been committed between 40 and 46 years ago. The first time SO raised the matter was some 30 years ago, when he told his mother.
The offence against the complainant BK is alleged to have occurred between 33 and 45 years ago. It is alleged that the first time BK made a complaint was to his mother when he was 14 to 15 years old. He told his mother that he was being sexually abused by the accused. BK later went on to say that he could not recall whether he made a complaint first to his then girlfriend, Jacqui, or to his mother, but in any event, the complaints were made close in time. The prosecution argued that the complaint to his mother was at least an elaboration of the complaint made to Jacqui.
The offence against the complainant GK is alleged to have occurred between 30 and 35 years ago. It is alleged that the first time GK made a complaint was about five years ago when he was at home with his mother and stepfather. They had been drinking and GK blurted out that he was abused when he was younger, when they lived at Valley View. He did not go into any detail but identified the accused as the person who abused him.
The offence against MB is alleged to have occurred between 29 and 33 years ago. It is alleged that MB made a complaint to his mother, some 12 months after the trip to Berri. MB said that the accused had tried to molest him. MB could not recall how soon after the complaint police became involved, but in cross-examination said that they went to the police the day after the complaint to his mother. MB’s first statement to police was signed on 26 March 1985.[22] The prosecution contended it was likely that the discussion between MB and his mother occurred shortly before then.
[22] Exhibit P17.
Having heard and considered the evidence said to constitute complaint evidence, to which I refer later in these Reasons, I do not consider that the complaints were in sufficient detail as could be said to relate to specific occasions. I exclude the complaint evidence.
In any event, I bear in mind that evidence of an initial complaint is only admitted to inform me as to the way in which the allegations first came to light, and potentially as evidence of the consistency or inconsistency of the conduct of a complainant and the reliability, or otherwise, of each complainant’s evidence.[23] It is not admitted as evidence of the truth of what a complainant alleges.
Delay in Complaint
[23] R v J, JA (2009) 105 SASR 563 (per Duggan J) [93]; R v England (2013) 116 SASR 589 at [33].
Here, whilst on the prosecution case there was, in relation to each count and each complainant, a complaint made, there was a significant delay in making the complaints and in bringing the matter to the attention of the prosecuting authorities.
Section 34CB of the Evidence Act provides:
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)     explain to the jury the nature of the forensic disadvantage; and
(b)     direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a)     must be specific to the circumstances of the particular case; and
(b)     must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
As has been observed in a number of previous decisions, there may be good reason to explain the delay in the making of a complaint.[24]
… It is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child … it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.[25]
[24] For example R v Davis (1995) 81 A Crim R 156 p 158-159; R v Liddy (No 4) [2001] SASC 152.
[25] R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995) cited in R v Davis (1995) 81 A Crim R 156 p 158-159.
I bear in mind that in a case involving lengthy delay, as here, the defence will frequently consist simply of outright denials because the passage of time denies the necessary forensic weapons that contemporaneity provides.[26]
[26] Crampton v The Queen (2000) 206 CLR 161 at [45].
Forensic Disadvantage
Here, the lapse of time is such that there is a significant risk that the accused has suffered a forensic disadvantage. Because of such a lengthy delay there is almost always the potential that an accused has been deprived of the opportunity to adequately test the allegations. In particular, he may not be as well placed to call evidence to counter the allegations.
In relation to this matter, and in particular in relation to the charges relating to MB, a number of documents were unable to be produced.
Counsel for the accused submitted that the accused had been significantly disadvantaged in that he has been unable to obtain missing records, registers, bank records, bank card slips and the like in relation to the earlier investigation of MB’s matter.
The prosecution conceded[27] that the accused was forensically disadvantaged in relation to the unavailability of the following material: Riverland accommodation records and witnesses; drink vending machine records; parts of the prosecution and trial files relating to the earlier charges involving ST and parts of the earlier MB investigation file. The prosecution however, did not concede that the accused was forensically disadvantaged as a result of the unavailability of Berri BMX records, records relating to the accused’s motor vehicles, the Rowley Park track doctor’s records, and boat registration records.
[27] Written closing submissions p 8 at [47].
If I find that the lapse of time is such that the accused has suffered a significant forensic disadvantage, as the case against the accused essentially consists of the complainant’s unsupported evidence, I would approach each charge on the basis that I should give close scrutiny to the complainant’s evidence. I must take into account the forensic disadvantage when scrutinising the evidence.
I find that the accused has suffered a significant forensic disadvantage. When discussing the evidence and when making findings about evidence, I indicate I have done so taking into account the forensic disadvantage suffered by the accused, when scrutinising the evidence.
Uncharged Acts
There was evidence from NP that on occasions other than the charged occasions, the accused touched NP under his clothes and on the penis, and the accused penetrated NP anally.
The whole of the alleged course of events in relation to NP provides a context in which it is said that the charged incidents occurred. The preceding and subsequent events throw light on the relationship which the complainant described as existing between himself and the accused.
The evidence of the uncharged incidents along with the evidence going directly to the charges, in relation to NP, can be used by me in determining what, if any, weight I am prepared to place on the complainant’s evidence. The evidence may assist me in concluding that NP’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in NP’s evidence, and thereby raising doubt about the charges.
It may tend to explain why NP did not make an immediate complaint when the charged incident was said to have occurred. It may explain why the accused expected NP’s co-operation and silence.
Further, it could be used to assist in explaining the background against which the charged offence came about, where the complainant’s evidence of the offences charged may otherwise have been unreal or unintelligible or not fully comprehensible.
I will only use the evidence of uncharged acts where I am satisfied beyond a reasonable doubt that such an act occurred. I remind myself that it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged. My verdicts must be delivered on the basis of the evidence in relation to the charges themselves.
Lies Direction
It was put to me by counsel for the DPP that the accused had told lies when giving evidence.[28] If I find that the accused did lie to me, the only use I may make of those lies is that they bear upon his credibility or believability. However even a total discrediting of the evidence of the accused should not deflect me from a careful assessment of the strength of the prosecution case and the need for it to be proved beyond reasonable doubt.
[28] Prosecution written closing submissions p 78 at [544] & [545].
Assessment of Witnesses
I have carefully considered the evidence, and counsels’ submissions. I bear in mind that all of the witnesses were relating events which occurred decades ago.
I find that the complainants SO, BK and GK were truthful, reliable and credible witnesses and I accept their evidence, including evidence as to the sexual offences committed against them, beyond reasonable doubt.
I find that NP was an honest witness. However for reasons I will refer to, I am left with a doubt as to the reliability of his evidence arising out of one aspect only.
I am not able to regard the evidence of MB in the same light. MB conceded that he had previously made statements that were not true. Whilst I accept that he may have been doing his best to now tell the truth, his evidence was inconsistent with previous statements, such as to cause me to doubt his reliability.
I find the accused to be an unreliable witness. I considered him evasive and at times untruthful, in relation to essential matters in issue. His evidence lacked credibility. Insofar as his evidence was in conflict with that of the complainants SO, BK and GK, I reject the accused’s evidence, even as a reasonable possibility.
I reject the evidence of the accused’s sister, MC, and K, where it conflicts with that of the complainant NP. Their evidence did not deal in material respects with the issues relating to the other complainants. I considered their evidence in respect to critical matters as clearly being designed to endeavour to exculpate the accused, rather than being a truthful or reliable account of events.
Evidence of Complainant NP
Background
At the time of giving evidence the complainant NP was 61 years of age, having been born on 19 March 1952. During the time particularised on the Information he was therefore between nine and 12 years old.
NP first met the accused after moving to Carrington Street, Adelaide, when he was eight or nine years old. The accused lived three doors down from NP and his family. NP said the accused would have been in his 20s when he first met him.[29] NP first saw the accused on the footpath at the front of the house where the accused was working on a motorcycle.
Relationship with the Accused
[29] T 103-104.
NP’s mother had told him that he was not allowed to talk to the accused because the accused was a motorcyclist. NP said that he was a rebellious child and that he disobeyed that instruction. NP said that the accused appeared happy to talk to him about motorcycles.[30] NP became aware the accused raced motorcycles and motorcycle sidecars when the accused brought his speedway motorcycle and motorcycle sidecar home.[31] The accused told NP he raced his motorcycles at Rowley Park and Mallala.[32]
[30] T 102.
[31] T 102-103.
[32] T 102.
NP developed a friendship with the accused. NP was a middle child who at the time, lived with his parents and four siblings. NP described himself as a troubled child who did not get along with his parents or grandmother. NP spent a lot of time on his own. NP said the accused was the only person who paid an interest in him and made special efforts to teach him different things.[33] NP trusted and respected the accused. The accused became like a father figure to NP.[34]
[33] T 103.
[34] T 103-104.

NP’s parents ultimately encouraged NP’s relationship with the accused because they noticed a positive change in NP’s behaviour. NP said the accused disciplined him for misbehaving or acting in a way that did not meet his parents’ approval.[35] The accused told NP that he would not take him to the speedway unless he behaved himself at home.[36]
[35] T 106.
[36] T 105.
When NP was nine or 10 years old, the accused moved to a house in Unley with his mother and two sisters.[37] NP said this occurred anywhere up to a year from the time he first met the accused.[38] The accused gave NP his address in Unley and NP rode his bicycle to visit the accused every chance he got.[39] NP said he attempted to visit the accused every weekend.[40] During cross-examination, NP conceded that when he attended at the Unley address he also saw the accused’s sister, K.
[37] T 104-105.
[38] T 104.
[39] T 104.
[40] T 105.
During the time the accused lived at Unley, NP worked on the accused’s motorcycle in a large shed at the rear of the accused’s house, which NP said was exciting for him.
In cross-examination NP agreed that the accused had left the Unley address and travelled to live in England for a period. NP also agreed that he corresponded with the accused through letters while the accused was living in England.
NP said the accused lived in Gilles Plains after he lived in Unley. NP said he would ride his bike to Gilles Plains to wash the accused’s motorcycle, and clean his car. He sometimes stayed overnight. He denied the accused paid him to do so. It was put to NP in cross-examination that while he washed the motorcycle, the accused went to the pub with his mates. NP denied that and said the accused rarely drank alcohol and did not go to the pub with mates.
Activities
The accused took NP to the speedway with him on several occasions.[41] When NP was 11 or 12 years old, he said he went to the speedway with the accused as often as he could. On many occasions the accused took NP but on other occasions, NP made his own way to the speedway.[42]
[41] T 105.
[42] T 107.
During cross-examination, NP said he rarely missed a speedway meet. If he misbehaved, the accused used the threat of not permitting NP to attend the speedway, or to work on the accused’s motorcycle, as punishment.[43]
[43] T 189.
During cross-examination, NP agreed that speedway at Rowley Park was held on Friday nights and that it did not finish until midnight. By the time he got out, it was possibly around 1:00am in the morning. It was suggested to NP that the accused did not take him to the speedway when he was 11 or 12 years old, and it was not until NP was older that the accused began taking him to the speedway. NP denied this suggestion. NP said he was not sure of the precise dates but said he was still in primary school when the accused first took him to the speedway.
NP said that when he was 12 years old, the accused sold him a motorcycle.[44] The motorcycle was in pieces and the accused taught NP how to assemble it. The accused also taught NP how to ride and repair a motorcycle.[45] The accused taught NP the mechanics of motorcycles; he also taught NP how to prepare for a race.[46] By the time NP was 13 to 14 years old, he knew how to prepare a speedway motorcycle on his own.[47]
[44] T 105-106.
[45] T 106.
[46] T 105.
[47] T 107.
NP said the accused took him to Parkside where they drove around in a motorcycle with a sidecar at an oval track.[48] NP enjoyed riding the motorcycle, and said it was not the kind of activity he did with his parents.[49] The motorcycle he was taught to ride on at Parkside was purchased from Borgelts Motors and had a sidecar specially built to carry another motorcycle. In later years, the accused took NP to the back of a rubbish dump at Wingfield to ride.[50]
The Accused’s Motor Vehicles
[48] T 105.
[49] T 106.
[50] T 105.
NP said the accused first owned a “big black car” later replaced by a brown 1951 Dodge Kingsway vehicle. NP also recalled the accused owning a late model, two-tone green Plymouth Belvedere, in which NP learned to drive.[51]
Count 1- Indecent Assault of Male Person
[51] T 111.
NP said the accused sexually abused him on more than one occasion. He described the first time the accused had abused him as occurring when he was nine or 10 years old. One weekend NP rode his bike to the accused’s house at Unley. NP recalled that it was daytime, as he would normally go to the accused’s house as soon as he had awoken and completed his chores.[52] NP and the accused were in the accused’s shed. The accused was working on his speedway motorcycle.[53] NP accidentally bumped into the accused and hit the accused in the groin area. The accused then began what NP described as a “reaching-grabbing playing” game.
[52] T 112.
[53] T111-112.
NP said the accused grabbed him on the penis and groin area. NP was wearing clothes and the accused touched him on top of his clothes. The accused gradually moved to touching NP’s penis and groin area under his clothes.[54] NP could not recall how long the accused was touching him on the penis and groin area but said that it seemed like an eternity.[55]
[54] T 112.
[55] T 113.
NP could not recall exactly what the accused said to him at the time but recalled the accused saying something along the lines of “relax, it’s okay.” NP could not recall how this incident came to an end. NP said he felt awful; he was very upset and cried for most of the night when he returned home.[56] NP said he was confused and was not sure whether he should have told someone about the abuse. He did not tell anyone about what had occurred between him and the accused when he arrived home that day.[57]
[56] T 113.
[57] T 113-114.
When cross-examined, NP agreed that the accused’s offending against him commenced when he was nine or 10 years old and this would have made it in 1961, 1962 or 1963. It was suggested to NP that he did not attend the Unley address before early 1964.
Count 2 - Buggery
When NP was nine or 10 years old and not long after the first time the accused touched NP on the penis and groin area, NP went for a drive with the accused to the Adelaide Hills.
The accused stopped and parked his car off the road. NP and the accused then climbed down a hill into a valley and onto a railway line. They walked along the railway line and into a railway tunnel. NP said he thought they were near the Belair National Park.[58]
[58] T 116.
NP described the railway tunnel as a normal railway tunnel covered with soot, and with refuge holes in the sides. NP believed that the tunnel was an active railway tunnel at the time. NP and the accused went into one of the refuge holes, which NP described as being about the size of a telephone box or slightly bigger.[59] NP said that the accused then began to touch him. The accused turned NP around so that NP was facing away from him and he was positioned behind NP. The accused pulled NP’s shorts down so they were around NP’s ankles. NP said that the accused had an erection. The accused then inserted his penis into NP’s anus.[60]
[59] T 116.
[60] T 117.
NP said the accused did not use any lubricant when he penetrated him and it was a very painful experience. NP said the accused was moving backwards and forwards, moving his penis in and out of his rectum. The accused told NP to “relax” and words to that effect.[61] NP said the accused ejaculated inside of him. NP and the accused then left the railway tunnel and the accused drove NP home.[62]
[61] T 117.
[62] T 118.
When NP arrived home, he felt sore and ashamed. He remembered going to the toilet and the smell being “absolutely revolting” to the point where it made him sick.[63] NP said he did not tell anybody about the sexual abuse because at the time, the accused was all NP had in terms of a father figure. NP idolised the accused and did not want to lose the relationship he had built with him.[64]
Uncharged Acts
[63] T 118.
[64] T 134.
Following the first incident said to constitute the indecent assault on NP he continued to visit the accused on weekends and on a weekly basis, at the accused’s home in Unley. When the opportunity arose, the accused touched NP in the same way he did on the first occasion,[65] not only at the accused’s house in Unley but also when NP went driving with the accused.[66] NP said the accused touched him that same way quite a lot of times over a few years.[67]
[65] T 114.
[66] T 114.
[67] T 114.
NP said he often went for a drive with the accused. The accused let him steer the car, and while NP was steering the car, the accused touched him sexually under his clothing.[68] NP recalled going for a drive to the Adelaide Hills with the accused on several occasions.[69]
[68] T 114.
[69] T 115.
Following the first incident in the railway tunnel NP said the accused penetrated him anally in the same railway tunnel location on other occasions. NP could not be certain as to the precise amount of times this occurred.[70]
Uncharged Acts involving Alcohol
[70] T 119.
NP also said the accused penetrated him anally at the house of the accused’s sister, CH, at Holden Hill where the accused was then living.[71] NP went to CH’s house on several occasions.[72] NP recalled being there on one particular occasion when he was nine or 10 years old. On this occasion, the accused gave NP what NP referred to as a “demon drink” which made him feel sick. NP said the demon drink was alcoholic sparkling wine. NP could not recall the specific details but said that the accused had touched him sexually.
[71] T 118.
[72] T 119.
It was put to NP during cross-examination regarding events at CH’s house that he told police, “I’m not really sure what went down there but I think [the accused] may have abused me there as well”. In response, NP said that was possible. He was not one hundred per cent sure about what happened at CH’s house that day. NP denied that he was just guessing that the accused touched him. NP said that “he felt that there was something happening there.”
There were other occasions when the accused gave NP alcohol to drink. NP said the accused gave him a drink called Brandivino, which was a mixture of wine and spirits. NP said he was given alcohol and sexually abused by the accused when they went driving to the beach, and when NP lived with the accused in Seaton.[73]
[73] T 121-122.
During cross-examination, NP said there were many occasions when the accused sexually assaulted him. He could not recall all of the places.
Living with the Accused
NP said he left school fairly early and went to live with the accused for a year or two in Seaton Park when he was 14 or 15 years old. NP said his parents gave him permission to live with the accused because they thought it would be in his best interests,[74] and that he was better behaved when he was with the accused. NP said the accused sexually abused him when they lived together in Seaton, and said the abuse involved both touching and penetration.[75]
[74] T 121.
[75] T 122.
NP said he might have been 14 or 15 years old when the accused ceased sexually abusing him,[76] at around the time the accused met J who later became the accused’s wife.[77] J had two young sons (the complainants). SO, who was then four or five years old, and BK who was then a toddler. The accused, J and her children moved to live together at a house in Windsor Gardens, and later at a house at Valley View.[78]
NP’s Continuing Friendship With the Accused
[76] T 114.
[77] T 122-123.
[78] T 124.
NP was asked whether the past sexual abuse affected his relationship with the accused. NP said it was difficult to understand or explain, but it was not an issue and his relationship with the accused was always the same, in that he looked up to the accused as a father figure,[79] and continued his friendship with the accused until NP was 40 years of age.[80]
[79] T 134.
[80] T 124.
At the age of 16, NP commenced as a passenger on a motorcycle sidecar when the accused raced at the speedway. NP and the accused raced together for nine years and won the South Australian championships in March 1972 when NP was 20 years old.[81] In 1974 or 1975, NP and the accused were involved in a serious crash. Both NP and the accused sustained injuries. In particular, the accused suffered a severe concussion.[82]
[81] T 124.
[82] T 125.
NP said that he often babysat SO and BK. SO and BK attended the speedway on most occasions when NP and the accused raced.[83]
[83] T 127.
NP was shown a photograph of the accused, J, SO, BK, and B’s girlfriend. NP and said his wife took the photograph at his 40^th birthday party in 1992.[84]
[84] T 131.
NP did not see the accused or the accused’s family very often after NP began employment as a truck driver and moved to Melbourne in the 1970s.[85] NP said the last time he saw the accused in a social context was at his 40^th birthday party.[86]
Complaint Evidence
[85] T 133.
[86] T 133.
NP said the first person he told about the abuse was his wife, MP, about 20 years ago, some time after his 40^th birthday. He said that he did not tell anyone prior to telling MP, because he did not remember the sexual abuse. NP said the sexual abuse was “just something that was not in [his] memory.”[87]
[87] T 134.
NP said he began having dreams and nightmares about the sexual abuse. NP went on to say that it was difficult to explain. The memories of the sexual abuse were coming to him, and he could not explain them, so he decided to discuss it with MP.[88]
[88] T 134.
NP recalled being at home with MP but could not recall the exact words he said to her while making the complaint. NP said he told her that he had been abused by the accused and that he was not dealing with it all that well. NP did not go into detail as to what had happened to him.[89]
[89] T 135.
That evening, MP became very upset and rang the accused. NP then spoke to the accused on the telephone, and asked why he betrayed NP’s trust. NP said he was very upset and asked the accused “why?” NP said the accused responded by saying that it was because of the affection he had for NP. NP told the accused that he too had a lot of children in his life, particularly two boys that he loved and adored, but he did not touch them. NP said to the accused, “Why did affection have anything to do with it?” During the conversation, NP told the accused that he was not coping with things very well. The accused told NP to focus on the good aspects that had occurred in their relationship.
Discussion of Allegations with Others - Contamination
NP said that he had discussed the allegations with his wife, with police and with lawyers. He also said that his sons knew of the allegations but not in great detail. He had not discussed the allegations with anyone else nor had anybody else told him about being abused by the accused.[90]
[90] T 136.
NP said he had not shared his police statements with anyone who had identified themselves as a victim of the accused. The last time NP saw SO, other than in the waiting room at the court, was approximately 20 years ago at the Murray Bridge speedway.[91] The last time NP had contact with BK was when he went to Broadview Cycles approximately 18 or 20 years ago. NP had never discussed the topic of sexual abuse by the accused, with SO or BK. NP said he either did not know, or did not have any contact with others who had made allegations against the accused.
Cross-Examination
[91] T 136.
During cross-examination, NP conceded that he had difficulties remembering events and dates as many of the events occurred when he was a young boy and nearly 50 years ago.[92]
[92] T 138.
Counsel for the accused ultimately suggested that NP may have confused his memories of abuse by the accused, with abuse by the accused’s brother LO, who had been convicted of child sex offences. NP said he had met LO and that it was possible LO lived in the house on Carrington Street before the accused lived there. NP said LO had a motorcycle with a sidecar and he spent time with LO as well.
NP agreed that he went for walks with LO to the parklands, but denied going on hikes with LO to Brownhill Creek, Mount Lofty or Belair.[93]
[93] T 149-150.
NP said LO used to be a photographer and took photographs of him in the Victoria Park or around the street.
NP agreed that the accused eventually found out LO was taking photographs of NP and told NP to keep away from LO.
NP denied he was ever sexually abused by LO, and denied that he had ever told anyone he was sexually abused by LO. There was no evidence that he had done so.
NP conceded that the photograph, Exhibit P6, was not taken at his 40^th birthday party, but years earlier, and that he could not in fact recall whether the accused, or indeed SO or BK, had attended that birthday party.
In relation to the telephone conversation with the accused when the accusations were first made, it was put to NP that he was ringing the accused to say, “Did you do this?”; to ask him whether the sexual abuse really happened. NP said that that was partly the purpose of the call. He conceded that he was ringing the accused to ask him, “Did it happen?”[94] NP said at the time he was not one hundred per cent sure; he was certain but not to the point where he could trust the kind of memories he was having. NP said that it was difficult to explain.[95]
[94] T 196.
[95] T 197.
NP agreed it was possible he did not tell police that he had rung the accused to ask “Why did you do this to me?”, and that it was possible he had told police when making a statement in 2010, “I rang [the accused] and asked him had all this really happened to me?” He agreed that when he was speaking to police in 2010, his account was that he rang the accused to say, “Did you do it to me?” because he did not trust his own memory.[96]
[96] T 197.
Evidence of MP
MP, the wife of NP, said that an accusatory comment regarding NP’s involvement with young boys in junior speedway appeared to have triggered NP’s memory about the sexual abuse. Shortly thereafter NP told MP about the accused sexually abusing him. NP said to MP that the accused had touched him when he was a young lad. MP said NP did not give any details at that time.[97]
[97] T 221.
She said that at some stage in the 1990s, after NP had told her about the sexual abuse, the accused telephoned her and she said “What do you want, why are you calling here?” The accused said that he had rung to speak to NP. MP put NP on the telephone. She could hear what NP was saying but could not hear what the accused was saying. MP said she heard NP say to the accused, “What did you do that to me for?” MP could not recall anything else that NP said.
Evidence of the Complainant SO
Background
At the time of giving evidence the complainant SO was 50 years of age, having been born on 22 August 1963.[98] During the time particularised in the Information, he was therefore between three and 10 years old.
[98] T 235.
SO has a younger half-brother, BK. They share the same mother. His maternal grandparents, who are now deceased, used to live in Aldinga by the beach.[99] SO lived with his grandparents when he was about four years old, while his mother lived in Adelaide.[100]
[99] T 236.
[100] T 237.
The accused began a relationship with SO’s mother, J, and they married when SO was five or six years old. SO described his initial relationship with the accused as a normal father/son-type relationship.[101] SO changed his surname to that of the accused when he was 16 or 17 years old, although he was always known by that surname.
[101] T 241.
SO lived at Valley View with his mother, younger brother BK and the accused in a house purchased by SO’s mother and the accused.[102]
[102] T 237.
SO said the accused worked at ABS at Windsor Garden. SO could not recall how old he was when the accused worked at Windsor Gardens but said that he used to work there part-time to help out. SO said his brother, BK, also went to the brake shop at Windsor Gardens, sometimes together, and at other times separately.[103]
[103] T 242.

When questioned about cleaning out the accused’s house, K said there was a suitcase that had old letters from England and she asked the accused whether he wanted to keep them and the accused said no. K said she did not think the accused knew he was under investigation by the police in November 2010 when she went and cleaned the accused’s house.[535]
[535] T 1196-1197.
K agreed that she had quite clear memories of living on Carrington Street when she was 13. K agreed that of NP’s family, NP was the person who spent the most time with the accused’s family.
K said when they were living at Unley, the accused worked on his motorcycle in the backyard. When asked whether it was in the shed, K said they had a shed but it was full of junk. K said she did not see NP in the shed or NP with the accused working on the bike.[536]
[536] T 1199.
When questioned about the arrangements for attending at speedway while she lived in Unley, K said she still used to go with the accused to speedway every week with the same people. When questioned as to whether there may have been a spare seat in the accused’s car K said she did not think there would have been a spare seat.[537]
[537] T 1201.
I find that K was not a truthful or reliable witness and gave evidence in a manner, she thought, would assist the accused, but which was not based on genuine recollection. I accept beyond reasonable doubt the evidence of NP that he travelled to the speedway with the accused. I reject as a fabrication the evidence of K that the car was so full that there was not a seat available for NP.
Evidence of MC
MC is a nephew of the accused, and the son of K. MC said he saw the accused about five times a year, mainly at birthday and Christmas functions.[538]
[538] T 1204.
In about 2006 or 2007 MC owned a white VN Commodore which was serviced twice a year by the accused. MC said the last time he saw BK was in 2006 at the accused’s house in Valley View. MC was at the accused’s house because he was getting his car serviced. MC said he saw the accused give BK money and saw them joking around together.[539] MC said there was no animosity between the accused and BK.[540]
[539] T 1207.
[540] T 1208.
When MC was in his youth, he visited the accused’s bicycle shops at Holden Hill and Broadview. MC said he saw SO and BK working there. MC described the accused, BK, and SO’s relationship as “good” on the occasions he saw them at the bicycle shops.[541]
[541] T 1209-1210.
MC said he knows people that also know the accused. MC said lots of people say good things about what the accused has done in cycling; the accused has a good reputation.[542]
[542] T 1211.
I bear in mind the previous good character of the accused, in assessing the credibility of the explanation given by him and his credibility as a witness. I also bear that evidence in mind as a factor affecting the likelihood of the accused committing the offences with which he is charged.
Addresses of Counsel
Prosecution
Counsel for the prosecution submitted that independently of one another, the complainants NP, SO, BK and GK were compelling witnesses and their accounts, even if standing alone, should be accepted. These four complainants gave clear and cogent accounts of being sexually abused over an extended period by the accused. They were not shaken in cross-examination. There was no basis either in their presentation, or on the evidence in the case, to apprehend that they have lied or are mistaken about the alleged abuse.
The prosecution conceded that the evidence of MB, standing alone, would not be as compelling as that of the other complainants, and that reaching a finding of guilt beyond reasonable doubt would be a more difficult task.
There had been no contamination, collusion or concoction between the complainants. Contamination, concoction or collusion, whether deliberate or inadvertent, was not a reasonably possible explanation for the evidence in this case.
The prosecution further submitted that although the prosecution bear the onus of proving there was no concoction between the complainants, it was worth noting that the defence did not put any case on concoction to the complainants. The only evidence in this case on the subject was that the complainants gave their accounts without knowing the details of offending by the accused against any other complainant.
The prosecution submitted there was an underlying unity demonstrated across the accounts of all five complainants. The underlying unity was such that the only possible explanation for the five independent yet similar accounts was that all of the allegations were true. The underlying unity across the accounts could not be explained by any or all of the following:
a)Individual lies by the complainants
b)Mistake by the complainants
c)NP confusing dreams with reality
d)Any motivation to lie, motivation to hurt or vendetta against the accused (in the absence of any concoction or collusion between the complainants)
The prosecution submitted that the accused’s evidence about the abuse, opportunities for abuse, and the relationships with the complainants, should be rejected. The accused deliberately lied and downplayed the extent of his relationship with NP. The accused also deliberately lied by creating reasons why he could not have committed other acts of abuse. One example is not being able to lie under the tent during camping trips. Whereas when questioned about mechanical work in 2006, when the accused was not thinking about the picture he was trying to paint, he admitted to being able to undertake mechanical work, in particular, being able to use an under-car roller. I am satisfied in relation to both matters.
Further, the accused’s reliability received no support from the documents he tendered which showed dates and events. He prepared for his evidence by looking at and learning the detail of those documents. His presentation in the witness box made it plain he had rote learned many details from documents available to him. I am satisfied that that is so.
The prosecution submitted that the accused purported to have clear memories of things that logically he would not be expected to remember after so many years had there been no offending. His position was in stark contrast to that of the complainants. The events were significant to them and should be remembered. On the other hand, according to the accused, the ‘relationships’ with those boys and the occasions of alleged abuse either did not occur or were unremarkable. There was therefore no plausible reason for him to remember what did or did not take place many decades later.
The prosecution further submitted that the accused was often answering questions by deduction and assumption rather than by using his memory. For example, the accused’s evidence about his car always being full on every single occasion, and that NP could not have sat up on the front seat. There was no sound reason to accept that the accused could remember such a thing given his evidence about NP's insignificance then. Those events occurred some 47 years before the accused even had reason to turn his mind to whether or not NP travelled in his car. There was no reason for him to remember that NP was never in the car but not remember which of his other young friends missed out on a seat if the car was full. On the accused’s case, both events were equally as unimportant. I am satisfied beyond reasonable doubt that the accused lied about such matters in an attempt to distance himself from NP.
The prosecution submitted that the accused’s evidence on the topic of sexual dysfunction was wholly unsatisfactory. The accused contended he had never had successful vaginal sexual intercourse with a woman, nor successfully had an erection, since early 1976. It was difficult to accept his description of a long-term, significant medical problem without any reference to any medical intervention over that period, and without any expert evidence of a medical diagnosis.
Defence
Defence counsel submitted that the defence and prosecution cases were not that far apart and ran parallel together in relation to times, places and locations, the main dispute being the alleged offending and a few elements regarding the nature of the friendship that commenced between NP and the accused. The accused did not deny associating with the complainants but denied all of the alleged offending. He also denied making any of the alleged admissions or implied admissions and denied giving any of the complainants glue or alcohol.
Defence counsel submitted that the accused had a lifelong interest and association with motorcycles. He did not go out of his way to attract young boys by showing off his motorcycles. He went about his daily life at his various homes and that happened to include riding and maintaining motorcycles. The accused gave open and frank evidence. He struggled in the witness box and often got things wrong and when presented with documents, he corrected himself. The accused was not run through the evidence as if it had been rote learnt as suggested by prosecution. The accused used all resources available to him to refresh his memory.
Defence counsel submitted that the accused did not shy away from his association with young people or young boys. The accused maintained numerous adult relationships with both male and female persons during the relevant time. Further, the suggestion by prosecution that the accused lied in his evidence and tried to minimise his opportunities to offend against some of the complainants, should be rejected. Defence counsel submitted the opposite was true in that, in relation to some of the complainants, the accused expanded the opportunities by giving evidence of occasions when he was alone with an alleged victim, even where such occasions were not mentioned in evidence.
Discussion
I have carefully considered all of the evidence and submissions in the matter. Generally, the witnesses, including the accused, were giving evidence of matters that occurred between 20 and 50 years ago and allowance has to be made for that. I have borne that in mind when assessing their evidence.
I do not ultimately rely on the evidence of each complainant with respect to charges involving other complainants, but rather, have determined each verdict on the basis of the specific evidence relating to each count.
As I have said, I find that SO, BK and GK were excellent witnesses. I accept their evidence beyond a reasonable doubt, and independently of each other. All three witnesses were truthful, reliable and credible. Whilst there were aspects of uncertainty given the passage of time, their evidence as to the occurrence of the sexual acts committed by the accused against them was unequivocal and convincing. I accept the evidence of the complainants SO, BK and GK as to the incidents constituting the charged offences in Counts 3, 4 and 5.
NP was doing his best to tell me the truth. In relation to the evidence of his background, of the nature and extent of his relationship with the accused, the extent of the activities they engaged in together, and the time they spent together, I accept his evidence beyond a reasonable doubt.
There is an aspect of the evidence of NP which, while leaving me with suspicion as to the accused’s guilt in relation to the charged offences, means that I cannot be satisfied as to the accused’s guilt to the very high degree required.
In relation to MB, I was also unable to accept his evidence beyond a reasonable doubt due to the number of inconsistencies that arose during the course of his evidence.
I found the accused to be an unimpressive witness. I bear in mind the difficulty faced in endeavouring to assess a witness’s veracity by his demeanour in the somewhat unnatural environment of the court room. I also bear in mind that the accused’s evidence is to be considered, having regard to his age and the effect the passage of time upon his memory. Nevertheless, he was a poor witness. He lied in his evidence. He was evasive. He lacked credibility. I reject his evidence entirely where it conflicts with the evidence of SO, BK and GK about the matters alleged against him which are the basis for the charges in Counts 3, 4 and 5.
Although the accused gave evidence of his relationships with each of the complainants, and occasions where he was alone with a complainant, or was involved in a particular activity with a complainant for a particular reason, I found the evidence to be evasive and misleading. I find that he deliberately gave misleading evidence designed to distance himself from the complainants, and in particular NP.
Disbelieving the accused of course does not establish the prosecution case. It is necessary for me to consider whether the elements of each of the offences have been proved on the evidence.
I find the elements of Counts 3, 4, and 5 proved beyond reasonable doubt, on the basis of the evidence of the respective complainants SO, BK and GK, after carefully considering the evidence of each of those complainants. I do so without having regard to the issue of the cross-admissibility of any of the evidence in this case.
Findings
Findings as to Counts 1 and 2
I did not find the accused to be credible when giving evidence about his relationship with NP. The accused denied having much at all to do with NP while living in Carrington Street. The accused recalled only seeing NP two or three times while he lived at Unley. However, when the accused later went to live in England, he wrote letters to NP. The accused said he wrote letters to NP because he was lonely and NP was having trouble at home and he wanted to make NP feel better. The accused said he was closer to NP’s brother RP, during the time they lived in Carrington Street. However, the accused did not write any letters to RP while in England. I accept prosecution’s submission that this was inconsistent with the accused’s claimed lack of relationship with NP in the period leading up to the England trip.
The accused was resolute that he never took NP to the speedway until NP was riding as a sidecar passenger with him. The accused claimed his car was always full on every single occasion but he could not remember which of his other friends that missed out on a seat in his car if it was full. I reject the accused’s evidence about never taking NP to speedway until after he became a sidecar passenger for him. In my view, that the accused could remember never taking NP to the speedway, with such clarity, but could not recall which of his other friends missed out, is fanciful.
Further, the accused asking NP’s parents’ permission for NP to be able to move into the Seaton house was inconsistent with the lack of relationship the accused described as having with NP. Although I do not accept the accused’s evidence as to his relationship with NP, I remind myself that a discrediting of the accused’s evidence should not deflect me from a careful assessment of the strength of the prosecution case that the charges need to be proved beyond reasonable doubt.
While I thought NP was doing his best to tell me what he thought was the truth and to recall events that occurred over 50 years ago, I find that he was a credible witness as to matters of background, as to his involvement with the accused at the accused’s various houses, and as to his involvement with the accused from a young age in matters relating to motorcycles.
The only basis upon which I am left with any doubt as to the elements of the offences alleged to have been committed against NP relates to the manner in which the accused’s memory of the offending came to light.
NP gave evidence that he had no memory of the sexual abuse until about 20 years ago, and that the memories came back through nightmares. NP said he rang the accused to ask him, “Did you do it to me?” because he was not one hundred per cent sure and he could not trust the types of memories he was having.
NP admitted that he could not be one hundred per cent sure about the types of memories he was having in relation to the sexual abuse. I cannot be satisfied beyond reasonable doubt as to the incidents constituting Counts 1 and 2, given the uncertainty of NP’s memories.
In saying that, I am in no way critical of NP who, as I have said, I accept as an honest witness.
Findings as to Count 3
SO was a credible witness. He gave a clear account of what did and did not happen during his childhood. He was clear that he was sexually abused by the accused and he made it clear that these were topics he did not like discussing.
SO never denied that he maintained a good relationship with the accused. Prior to agreeing to assist Detective Tromp in the investigation in 2010, SO admitted he still had contact with the accused. SO agreed that the accused would help him out in his bicycle store when he went on holidays. I accept the submission by prosecution that there had been no falling out between the accused and SO and there had been nothing in the evidence from or about SO that suggests he had any motive to make false allegations against the accused.
I found that SO was honest during cross-examination. When cross-examined about performing jumps for a cameraman at the request of the accused and his civil claim being reduced, he demonstrated a willingness to admit those matters in addition to his strong relationship with the accused.
SO gave evidence that he was sexually abused a number of times when they went camping at Aldinga and Port Gawler. The accused gave evidence that he could not have slept in the beach shelter when they went camping because he could not get down and up off the ground due to injuries. The accused admitted that he could perform mechanical work in 2006 and could ride motorcycles in the 1970s and otherwise function. The accused said his speedway career ended in 1976. I reject the accused’s evidence, even as a reasonable possibility, that he could not manoeuvre himself under a beach tent, or lay under the beach tent.
I further reject the accused’s evidence that he slept in the car while the boys slept on the beach. The accused’s evidence was that he went camping at Aldinga after he obtained the 1965 Dodge Phoenix in 1971. The seat of that car could recline and the accused said he slept in that car while the boys camped on the beach. The accused also gave evidence that the visits to Aldinga began while he and J were not married yet because J’s parents were religious and he had to sleep in a separate bedroom. On the evidence of both J and the accused, they were married in 1969. I draw the inference that the camping trips would have commenced before 1971 when the accused says he obtained the Dodge Phoenix.
I bear in mind of course that the accused does not have to prove anything, and that it is for the prosecution to prove each element of the charge beyond reasonable doubt.
SO gave evidence that the first time he was abused was when he went camping on the beach at Aldinga with the accused, BK and D. SO admitted he was not precisely sure how old he was when he was first abused but said he was around five or six years of age. SO gave a clear account of the camping trip. They slept with sleeping bags or blankets under a beach shelter. On the first occasion, the accused fondled him on the penis. On later occasions, the accused anally penetrated him. SO said he saw the accused abuse BK in the same way at Aldinga. When describing how he felt when abused at Aldinga, SO said, “Believe it or not, kind of special.” SO also gave a description of the accused causing the boys to perform fellatio on each other. SO also described incidents where the accused abused him in his own bedroom on several occasions, during the evenings when they were home alone. SO gave further evidence that the accused gave him alcohol to drink before sexual abuse took place at the home. SO admitted this was not very frequent and that the accused himself was not a drinker.
No inconsistencies in SO’s evidence caused me to doubt his evidence. Where the evidence of SO is in conflict with the evidence of the accused, I accept the evidence of SO beyond a reasonable doubt. None of the matters raised by defence in isolation or taken together, cause me to doubt the evidence of SO. He was an excellent witness who gave a compelling account of his childhood and of incidents of sexual abuse by the accused. I have carefully scrutinised SO’s evidence. I accept SO as a witness of truth and I am satisfied that the prosecution has proved each element of the charge of persistent exploitation of a child beyond a reasonable doubt. I find the accused guilty of Count 3.
Findings as to Count 4

BK was a credible and reliable witness. Unlike SO, he did not maintain a completely positive relationship with the accused throughout his life. BK conceded that he was “not good” with times and dates. BK gave evidence that he was three years old when he was first sexually abused. The prosecution conceded that this was a very young age to remember such events and in light of SO’s evidence that he was five or six years old on the camping trips at Aldinga, it may be that BK was four or five years old when first abused.
BK described being first abused when he went camping at Aldinga in the sand dunes with the accused, SO and D. He described having blankets and being under a tent with no sides. He recalled waking up to laughter and then having a discussion about a secret. BK then recalled being sexually abused by the accused. BK said the sexual abuse did not occur very frequently to begin with but became more frequent later on. He admitted he could not recall every occasion of abuse. BK also described occasions where he was sexually abused at ABS at Windsor Gardens and at the house when BK and the accused were home alone. BK was able to draw a map of the layout of the ABS store at Windsor Gardens and the area in which he was abused in.
BK said he believed the accused was circumcised because when sexual abuse occurred, the accused had an erect penis and he saw the head of the accused’s penis. BK also saw the accused around the house in usual family situations. The evidence from Dr Ducrou was that the accused was not circumcised. However, if the accused’s penis was erect, a person would not be able to tell the difference between a circumcised penis and an uncircumcised penis as the foreskin is retracted and the head of the penis exposed. The prosecution submitted that if I find that BK has made a mistake about the accused being circumcised, it could only have been a mistake based on BK’s ‘innocent’ observations of the accused in the home setting and that should not affect his credibility in relation to the allegations.
Defence submitted that BK tried to downplay the contact he had with the accused in that he claimed he went out of his way to avoid the accused after leaving the bicycle shop. Defence submitted this was inconsistent with the accused going to his house to do the books with BK’s wife and then staying for dinner.
Whilst there were some aspects of uncertainty in BK’s evidence given the passage of time and his young age at the time of the offending, I do not find that they affected BK’s credibility or reliability in relation to the issues for determination. They do not cause me to doubt his evidence. I accept his evidence beyond reasonable doubt.
I found BK to be truthful. During cross-examination, he was honest and admitted to not being happy while he was working at Broadview Cycles and being annoyed with Ben’s involvement with the BMX shops. He was not evasive as to the difficulties that arose in his relationship with the accused.
Again, where the evidence of BK is in conflict with the evidence of the accused, I accept the evidence of BK beyond a reasonable doubt.
I accept BK as a witness of truth, Again, I have carefully scrutinised his evidence. I am satisfied that the prosecution has proved each element of the charge of persistent exploitation of a child beyond a reasonable doubt. I find the accused guilty of Count 4.
Findings as to Count 5
Although GK had difficulties with his memory having smoked marijuana from a young age, I found him to be a truthful and credible witness. He was obviously in discomfort when talking about the abuse and giving evidence in court but notwithstanding those difficulties, I found his evidence to be impressive.
GK recalled meeting the accused through the local neighbourhood and being interested in his motorcycles. GK believed the first time he was abused was when he was eight to nine years old. He admitted that it was hard for him to recall precisely how old he was. GK described being sexually abused in the office of ABS. He said the accused gave him Quick Grip glue inside a clear lunch bag, which was itself inside of a brown paper bag. GK said he inhaled the glue at the accused’s instigation. GK said the accused said the kids out the front were using glue. The accused agreed in his evidence that there had been kids sniffing glue out the front of ABS.
GK described the sexual abuse “like [the accused] was masturbating between [my] butt cheeks.”[543] GK could not be sure whether the accused penetrated him because he tried to block out the memories. GK gave evidence he was also abused in the accused’s home on occasions when he was alone with the accused, when the accused took him on a drive to Maslins Beach with CS present, on a trip to the Riverland when they stayed on the accused’s boat, and Holden Hill Cycles. I accept GK’s evidence in relation to these incidents beyond a reasonable doubt.
[543] T 514.
Inconsistencies such as whether the car and boat trips to Torrens Island were during the day or night do not cause me to have any doubts as to GK’s evidence as to the charged incidents.
I have carefully scrutinised GK’s evidence, and found him to be a witness of truth and to be reliable. I am satisfied that the prosecution has proved each element of the charge of persistent exploitation of a child beyond a reasonable doubt. I find the accused guilty of Count 5.
Findings as to Count 10
The offence of attempted rape was amended on 11 February 1982. The prosecution could not prove beyond reasonable doubt that the offence occurred either before or after 11 February 1982 and conceded that there should be an acquittal in relation to Count 10 and Count 11 should be considered in the alternative. I find the accused not guilty of Count 10.
Findings as to Count 11
I am unable to accept MB’s version of events beyond reasonable doubt. I accept that he was doing his best to tell the truth. However, I am unable to find that he was a reliable witness. My doubt arises from several different areas including the following:
Firstly, he was inconsistent as to the number of times he was told to sniff the glue by the accused. When giving evidence in court, MB said he sniffed the glue six or more times, whereas in his statement to police he said he had sniffed the glue three times. MB could not recall telling the police he sniffed the glue three times. Further, in his evidence, MB said the accused threw the bag of glue out the car window whereas in his 1985 statement, he told police that he threw the glue out of the window.
Secondly, MB was inconsistent about how he met the accused. He first told police in 1985 that he met the accused at Broadview Cycles because he was doing art at school and part of the course was to go BMX riding. MB’s art teacher had taken them to the accused’s bicycles shop. However, in evidence in court, MB said he met the accused through Broadview Cycles, not because he had to go there for art class, but because he needed a new tube for his tyre. MB’s evidence was that he met the accused when he went to get a tube for his Malvern Star bicycle. This was before he went there with his art teacher.
Thirdly, during his evidence MB said the bottle of vodka had a label on it whereas he told Detective Tromp in August 2011 that he did not remember what kind of alcohol he was given. MB’s explanation was that he had significant memory loss and he had tried to block out the whole incident. MB said, in evidence, that after he drank vodka on the Berri trip, he did not see the bottle or any other alcohol for the rest of the trip whereas, MB told police in August 2011, that the accused was drinking alcohol at the motel. MB could not recall whether the accused was drinking alcohol in the motel. MB accepted that he told police in August 2011 that he did not drink the vodka and he did not tell police that he was pressured into drinking it and ended up drinking the vodka. MB’s explanation was that Detective Tromp changed the subject numerous times when interviewing him and he did not get a chance to expand on the drinking topic and explain that he had to drink the vodka.
Fourthly, he said during his evidence that the accused made two stops on the way to Berri whereas in his statement to police, he only mentioned one stop. MB’s evidence now was that there were two stops made.
Fifthly, MB told police in 1985, that he raced BMX at Berri the day after the accused allegedly sexually abused him. However, MB’s evidence now was that he had no memory of racing that day.
I found it difficult to make sense of MB’s evidence in relation to the way he became aware of ST’s allegations that the accused had abused ST. In MB’s statement to police in March 1985, he said that he was prepared to tell police what happened to him because a friend [ST] had approached him and told him that he had been treated the same way (referring to the allegations of sexual abuse at the hands of the accused). MB denied telling police that. MB suggested that somebody had been tampering with his statement. MB’s evidence was that he did not find out about ST’s allegations against the accused until two years after ST had passed away. MB said he was told about ST’s death and ST’s allegations of being sexually abused, by an old friend of theirs. MB said he did not want anyone to know he was involved with this “bad egg.” MB admitted he lied to Detective Tromp in order to inform Detective Tromp that he knew about ST and to cover up his association with the “bad egg.”
I am not persuaded beyond reasonable doubt that the accused had indecently assaulted MB. I therefore find the accused not guilty in relation to Count 11.
Verdict
I am left with no doubt that the specific acts alleged by the complainants SO, BK and GK occurred in relation to Counts 3, 4, and 5. Accordingly, I find that each element of each charge of persistent sexual exploitation of a child has been established beyond reasonable doubt. I find the accused guilty of Counts 3, 4 and 5.
Whilst I may have a suspicion that the accused engaged in sexual activity with the complainants NP and MB, having regard to the presumption of innocence and the standard of proof required before I could convict, I cannot be satisfied beyond reasonable doubt that the accused committed the charged offences comprising Counts 1, 2, and 11. Accordingly, I find the accused not guilty of Counts 1, 2, and 11.
For reasons already discussed the accused must be found not guilty of Counts 6, 7, 8 and 9, and Count 10.
Count 1 – Not guilty.
Count 2 – Not guilty.
Count 3 – Guilty.
Count 4 – Guilty.
Count 5 – Guilty.
Count 11 – Not guilty.