R v P & R - [2012] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P & R
Criminal Trial by Judge Alone
[2012] SADC 74
Reasons for the Verdict of His Honour Judge Cuthbertson
15 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Both accused charged with Persistent Sexual Exploitation of a Child, Unlawful Sexual Intercourse and Indecent Assault
HELD: Verdicts of not guilty returned as to both accused.
Evidence Act 1929 s 34M, referred to.
R v BFB (2003) 87 SASR 278, considered.

R v P & R
[2012] SADC 74
Overview

It is alleged that sometime in about 1979 or 1980, the complainant, M, who was then aged about 14 years (date of birth - 20.04.66), met the two accused, who were then aged about 30, in Hindley Street, Adelaide at an amusement centre on an occasion when he and some of his school friends had taken a day off school. R’s date of birth – 20.09.55. (See Exhibit P37, No. 3 & Exhibit P15 – P’s date of birth – 30.01.54 (see Exhibit P37 No. 19) (T45)
M was taken by the two accused P and R to the home of P, then in Jaffrey Street, Parkside. There it was alleged that various sexual acts occurred between them and M. (T46 – T54)
The sexual acts are said to be the first part of a course of offending culminating in the commission of the offence of Persistent Sexual Abuse which is the subject of Counts 1 and 3 on the Information.
Count 2 is an offence alleged to have been committed by P against M’s brother D and Counts 4 and 5 are alternative counts to Counts 1 against P and Counts 6 and 7 are alternative counts in relation to Count 3 against R.
It was not until 2003 that this matter came to public light and it was not until 2010 that a police investigation ensued.
When the accused P was spoken to in 2010 he denied knowing M or being involved in any sexual impropriety with any young persons. (T289 - Exhibit P30)
There is limited evidence before me as to what R said on the matter. (See Agreed Fact No.16)
The prosecution case is that M had a relationship back in 1980 with each of the accused and that the nature of the relationship was one of sexual exploitation.
Further, that on one occasion M, with his brother D, came to the Jaffrey Street premises where the latter had sexual relations with P. (T198)
For reasons I will come to it is difficult not to conclude that there must have been some sort of relationship between M and both accused back in 1979/1980.
The defence case is that M’s assertions contain so many inconsistencies and that he was suffering from a mental illness causing him to hold bizarre and untrue beliefs to the extent that his evidence ought not be accepted beyond reasonable doubt, at least to the extent that it establishes the relationship as being a sexual one.
Further, that where one might expect there to be corroboration of assertions made by M, there is no corroborative evidence.
The principal issue then is as to the nature of the relationship and whether the prosecution charges have been proved beyond reasonable doubt.
Onus of proof
There is a presumption of innocence and the accused are regarded as innocent unless and until guilt has been proved beyond reasonable doubt.
Burden of proof
The burden of proving the charges lies upon the prosecution; the accused do not have to prove anything.
Each of the elements of the charge must be proved beyond reasonable doubt before I can return a verdict of guilty to that particular charge.
Separate counts
The accused are charged with separate counts and each count on each accused must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean there must be a verdict of guilty or not guilty in relation to the other counts.
Uncharged acts
Other acts which may or may not constitute criminal offences alleged to have occurred between an accused and M are evidence as to the relationship between M and that accused. These acts may be used to cast light on the nature of that relationship thus helping to resolve the question of whether the particular charges have been proved.
It is not proper to use evidence of prior uncharged incidents in any other way and in particular so as to reason that because an accused has committed other offences he is likely to be the sort of person to commit offences.
Nor is it permissible for me to reason that if there are proved acts of a sexual nature between an accused and a person other than the victim under consideration that such evidence makes it more likely that the accused committed acts of sexual indecency against that victim.
Failure to give evidence
Both accused did not give evidence in this matter. It was their right not to give evidence and I do not hold it against them or draw any adverse inference from their failure to give evidence. The case must still be proved beyond reasonable doubt.
Interrogation of accused
Both accused were questioned by police about their involvement in the alleged offences. (See Police Record of Interview – Exhibit D30 & Agreed Fact No.16) I will use the evidence of what an accused is proved to have told police as evidence in the case whether it be helpful to the case of that accused or helpful to the prosecution case against that accused. What one accused said out of Court is not evidence against the other accused.
Evidence tending to establish that M knew P in about 1980
M asserts that he has been to the premises of P at Jaffrey Street to visit him on a number of occasions and that he knew significant personal details of P. The evidence to support that is as follows:
M knew that P owned a blue Torana. (See Record of Interview - Exhibit P30)
M was able to identify the building in which P resided at Jaffrey Street. (T49)
He was able to draw a floor plan of the building which it is unlikely he could have done unless he had been inside the premises. (See Exhibit P2)
The following other witnesses support the proposition that M had been inside the building:
D – He claims he went there with M. (See T199 & T200)
Hodges. He too claims he met P through M (T232) and that they went to P’s flat which he accurately described. (T234)
Roper - He confirms that there were two “Andy’s” and that the one with the wagon was a different “Andy” to P. Andy with the wagon had orange and light brown hair. He was tubby with a tubby face and receding hairline. (See Statement - Exhibit P21)
Cruickshank - His three statements speak of an “Andrew” whom he met with M and who drove them to the Christies Beach area and he also thought lived in that area. (See Exhibit P18) It is difficult to reconcile this involvement with P.
Bryan - He mentions “Andy” as the person he met at M’s house although M never spoke of P going to his house. Like Cruickshank and Nugent he speaks of “Andy” having a station wagon. (See Exhibit P20)
Hodges - His evidence puts “Andrew” as living in a flat and at a location consistent with “Andrew” being P. (T234) It clearly distinguishes P from the other “Andrew”. He is “pretty sure” P was not the other “Andrew”.
Nugent – He speaks in his statement of meeting “Andrew” at Port Noarlunga and that “Andrew” used to “hang around” Port Noarlunga and Salisbury North. It is difficult to reconcile this person with P. (See Exhibit P19)
Simmons - He claims he met P through M and knew P drove a blue Torana. (T251) He too was told by P that he worked for a radio station. (T252)
Simmons confirms that he went to P’s flat on a number of occasions. His description of the car and flat are accurate. (T251 & T252) I also note his description of being taken to a test match at Adelaide Oval. (T258) This is corroborated to some degree by the location by police of the letter Exhibit P14 as is Simmons’ claim that P said he was an announcer at the cricket. (T253) I note also the agreed fact that West Indies played Australia in the Australia Day test of January 26, 1980. (See Agreed Facts – Exhibit P3 No. 20)
I gained the impression that Simmons did not know a great deal about cricket. It would appear that although the West Indies did not tour Australia in the 1980/81 year, India and New Zealand did so and he may well have been describing a game played by either of those two countries. (See statement of Andrew Brigham, Exhibit D43) It does not cause me to doubt that the evidence of Simmons attending a cricket match in 1980/81 with P is correct.
He also gives what I would regard as, a reasonably accurate description of P. (T254)
M claims not to have known another “Andrew” and not to have been taken down to the Christies Beach area with Cruickshank and Roper by that person. (T149, 150)
I do not think that M is mistaken about “Andy”. In my view the group of young lads knew two persons by the name of “Andy”.
M knew that P was associated with the house at 37 Main Street, Eastwood. (T73) (See Motor Vehicles Act Notice - Exhibit P22)
M knew that P was associated with the 5DN radio station. (See Copy of page from “The Advertiser” - Exhibit D39)
M knew P & R were acquainted. (See Album - Exhibit P4) (T225)
M knew that P was not circumcised. (See Record of Interview – Exhibit P30)
Evidence tending to establish that M knew R in about 1980
He knew R knew Von Einem as evidenced by his assertion that R took him on one occasion to a home where he saw Von Einem and where acts of sexual interference occurred which were photographed by Von Einem.
16.R gave a statement to Detective Sergeant Snell on 10 November 1983 in the course of which he said:
a.From the age of about 16 or 17 he would drink in gay bars and mix with gay people. One of the persons he got to know from those activities was Bevan Spencer Von Einem. He met Von Einem on numerous occasions and became friendly with him. He would spend time with Von Einem on occasions.
b.On a particular occasions (sic) between 1974 and 1977 he had a drink with Von Einem at The Ambassadors bar and he (sic) Buckingham Arms Hotel. he (sic) then went to a party with Von Einem at an address in Malvern.
c.He had not seen Von Einem for about four years of (sic) so from the date that he provided his statement.
(See Agreed Fact No. 16)
NB: Von Einem was convicted of the murder of Richard Kelvin.
Additionally M knew that Von Einem lived in a single storey flat which knowledge he could only have acquired if he had visited him there. (See Exhibit P2) (T281) NB: There was an inconsistency in that M had used the word “house” to describe the premises. Further, there is evidence that the detective in charge of the investigation drove M past the flat of Von Einem but M did not recognise it as such.
M knew that R was associated with the premises at Queen Street, Adelaide. He identified the premises and identified the bedroom. (See Hand Drawn Plan - Exhibit P2, Statement - Exhibit P7, Statement of James Rozankowski - Exhibit P23, Certificate of Title – Exhibit P24 and Statement of Rosemary Taylor – Exhibit P25)
M knew that P and R were acquainted. A photograph of R was located in P’s photo album confirming this. (See Album – Exhibit P4) (T225)
M’s sister, T, confirms M’s evidence that her brother introduced her to an adult male “Pedro” although she couldn’t identify him when shown photos and a line-up by police and claims that M introduced him as a radio commentator which he wasn’t.
Lynda Hansford saw whom might be inferred as M with R parked in a car. She deposes to having a horse with red bindings at or about the relevant time as deposed to by M and of having seen a car parked in the area where she was riding.
I do not place great reliance on her seeing a car in the vicinity. As far as I can ascertain it was a then fairly deserted area where she rode her horse albeit an area near built up suburban areas. (See Map – Exhibit P28) I do not think it is remarkable, therefore, that a car should be parked in the vicinity of where she rode her horse, nor that it should contain two occupants.
If anything her statement (see Exhibit P27) is contradictory of the accused’s claim that he had sexual relations with R because she claims to have seen the car on more than one occasion and M does not give evidence of having been there on more than one occasion.
M knew that R was associated with premises at Main Street, Parkside. (T259) He identified the premises and identified the bedroom. (See Photos - Exhibit P6, Statement of R, Bundle of 4 Plans – Exhibit P2 and Street Map – Exhibit P5)
M knew R was a “roadie” for the band “Redgum”. This is confirmed by the witness Schumann. (T257) See also photos of suitcase used by Redgum (exhibit P16), and Redgum stationery located at premises of R. (See Exhibit P17)
The relationship is confirmed by the evidence of D. (See T193)
The relationship is confirmed by the evidence of Roper. (T214)
There is evidence of a relationship between M and P & R
In my view the overwhelming evidence supports the proposition that at some time in the early 1980’s M had a relationship with the two accused. I have considered whether there is any other hypothesis reasonably open other than that he knew both the accused personally and well enough to be able to identify their respective homes and some details about their personal circumstances.
I do not think it is a reasonable possibility that he made this up as he has knowledge of the interior of both their premises and knowledge about their personal circumstances which he could only have acquired from personal experience with the accused.
When did the relationship arise?
M said that it was very soon after the death of Alan Barnes at a time when he was aged 14 that he first met the accused and that at this time he was going to school with Roper and Hodges.
Alan Barnes died in June 1979 (see Death Certificate – Exhibit P11 and Agreed Facts – Exhibit P37 No. 12) but it was not until April 1980 that M turned 14 years.
Further, agreed facts about school dates indicate that Roper and Hodges did not start at Salisbury High School until 1980 (Agreed Facts – Exhibit P37 No’s. 7 & 8) although M first attended High School in 1979 (Exhibit P37 No. 5) so it was not until 1980 that they were all at the same high school together.
Extracts from “The Mercury” newspaper indicate that P was in Tasmania probably from at least November 1979 to May 1980. (See “The Mercury” extracts, Exhibit D40)
Further, the “Advertiser” newspaper pages tendered indicate that the accused had returned to South Australia at least by late June 1980 which would have been very soon after M’s 14^th birthday. (See Pages from “The Advertiser” - Exhibit D39)
In his interview P said he returned to South Australia in late 1980 (see DVD of interviews – Exhibit P30) from Tasmania and resided at Jaffrey Street and later moved to Main Street, Eastwood, premises also described by M.
There is further consistency in the length of time of the relationship.
M says the relationship with P lasted about 6 months but the relationship with R was about 3 months or more ending with the Kiss concert. The Kiss concert was on 18 November 1980. (See Exhibit P37 No. 14)
This is also consistent with the evidence of Schumann that R worked with the band towards the end of their time based in Adelaide, being about 1980 to 1981.
A letter from PBL Marketing located at P’s premises and dated 25 February 1981 thanks P for his announcing at international and McDonald’s Cup cricket matches at Adelaide oval during the 1980/81 season. (See Exhibit P14) But it is also an agreed fact that the Australia v West Indies test was on 26 January 1980.
Nevertheless, I conclude that the relationships lasted over a period in the late part of 1980. M is in error in thinking it started a couple of weeks after Barnes died. I do not think it affects his credibility. The circumstantial evidence of the relationship is overwhelming
The evidence in relation to whether D knew P
The way in which D describes the lounge as drawn on his plan (P12) is reasonably accurate.
M had said that the furniture had changed to that position on the occasion D attended whereas previously when he first attended it had been in a different position. (T71)
D was able to draw a fairly accurate plan of P’s premises at Jaffrey Street. (See Hand Drawn Plan – Exhibit P12) (See T194)
M deposes to having accompanied his brother D to the premises of P. (T70)
I find D had visited the premises of P during the latter half of 1980 and hence knew him.
I make this finding notwithstanding the denial by P in his Record of Interview of knowing M or any young persons who may have been his friends.
The nature of the relationship of M with the two accused
It is not enough that there be established a relationship between the two accused and M and D back in early 1980.
M asserts that it was a sexual relationship and it is fundamental to establishing beyond reasonable doubt the specific charges that the prosecution prove a sexual relationship.
Evidence evincing a sexual relationship in relation to P
There is evidence of M that he met P and R at an amusement parlour and was taken by them back to P’s premises and sexual intercourse took place. (T45)
M had esoteric knowledge that P was not circumcised. (T74 & Exhibit P42 p.13)
There is evidence that P gave money to M. (T72) This is confirmed by Hodges who saw a white paper being given by P to M (T239 & T245) and Simmons (T253).
There is support that the nature of the relationship was a sexual one by the following witnesses:
a.Hodges claims to have seen P in bed with M and another unidentified man, “Prowoski, or something like that”. Their trousers and jocks were on the floor and they were under the covers. (T235) This was the first night that he met P at Tilt. (T237, T243 & T245)
NB: M says no-one else was at the flat when he had sex with the two accused so it cannot be an occasion described by M. (T44). Further, M’s evidence is that the first night Hodges met P at Tilt. Hodges did not accompany them back to the flat. (T44)
b.Roper claims that on one occasion when he visited with M, Hodges and either Cruickshank or Cox and possibly D were there. (T214)
He thought that at one stage M & P were in the bedroom together for about ½ an hour. (T218 & T221)
Evidence evincing a sexual relationship between M and R
There is the evidence already referred to establishing that there was a relationship of sorts.
The evidence of M.
The evidence of M’s sister T, while confirming that an adult person introduced by M as “Pedro” came to their home and smoked cannabis with M in a car, asserts that that person was described by M as a radio producer or announcer. (See Statement of D Mudge – Exhibit D36)
While this may be an appropriate description of P it is not an appropriate description of R.
It seems there must at least be some misunderstanding on the part of T. The evidence goes someway towards supporting the proposition that there was a relationship between M and R, it is by no means compelling nor does it help me to decide that the relationship was a sexual one.
Further, I note that in both formal identification parades in which R was present and in being shown a folder of 12 photographs of men with a photograph of R as a younger man, T failed to identify the person introduced to her as “Pedro”. (See Statement of Agreed Facts – Exhibit P37 No’s. 17 & 18)
The evidence or recent complaint
The prosecution sought to tender a letter written by M whilst in custody in 2003 to his mother. (See Exhibit P8) The letter refers to the two accused and makes allegations of sexual impropriety by them against the writer. The envelope is post marked 8 October 2003.

The question is whether this is admissible evidence under s 34M of the Evidence Act 1929. In order for it to be admissible I must find it to be an “initial complaint”.
These incidents are alleged to have occurred in 1979/1980, some 23 years earlier. Because M has given evidence that he told his friends about these events at about the time they were happening, back in 1980, it follows, in my view, that this letter cannot constitute an initial complaint.
Accordingly, I will not use the contents of the complaint in any way.
Other evidence of recent complaint
M had said that he had conveyed information as to the sexual happenings at the flat of P to Roper, Cruickshank and Hodges. (See T96 & T98)
There is no evidence of the words used.
Roper and Hodges were not asked in evidence whether such a complaint was made and D gives an account that he was told by M that the visits to P’s flat were for drugs and money and mentioned nothing about sexual activity. (T202)
As M gave evidence of having told a number of his friends about the sexual activity he was having with both accused one might have expected this to be corroborated by evidence from the various friends who were called. No such evidence, however, was led. (See T127 & T 126)
I am not prepared to find that a complaint was made when, in the circumstances of this case, no supporting evidence has been called from witnesses which, in the ordinary course, I would expect to have been tendered.
I find there is no demonstration of consistency by any evidence of complaint.
I note, however, that the failure to make, or delay in making, a complaint in a sexual offence is not of itself of any probative value in relation to the alleged victim’s credibility or consistency of conduct and that there may be varied reasons why an alleged victim of a sexual offence delayed in making the complaint.
Finally, I do not think the complaint to M’s mother can be regarded as an elaboration of an initial complaint and I will not use it as such.
Given the fact that the complainant asserts that he told his friends and that they were aware of the sexual activity between M and P I find it surprising that there is no supporting evidence. This reinforces the need to scrutinise with care M’s evidence.
Lies as evidence of guilt
I will not use any of the content of the record of interview between the police and P as lies told with a consciousness of guilt. The prosecution has not asked me to do so.
I will likewise ignore P’s inability to identify a distinctive looking M (see Exhibit P1) and a distinctive looking flat he once lived in (See Exhibit P3), as deliberate lying.
I will also ignore his claimed inability to recognise M’s name when it was mentioned to him by police (see Exhibit P30) and his failure to volunteer the alleged incriminating premises when speaking of premises he had lived in. (See Exhibit P30)
The need to scrutinise the evidence of M carefully
There is a need in this case to scrutinise with extraordinary care the evidence given by M. It arises from the fact that the events, the subject of the charges, occurred a considerable time ago and thus there is an inevitable dimming of memory of M and other witnesses when giving evidence about various matters. There is also the inability of the accused to be able to verify or contradict factual assertions of M and witnesses.
A further factor engendering the need for careful scrutiny of M’s evidence is the fact that there is undeniable evidence that at some stage he suffered from significant mental disability including psychosis causing the accuracy of his perceptions to be questioned. There is the added complication that we are or may be dealing with a mental condition and the quality of perceptions that arose many years ago on top of the “fragility of youthful experience”. (See Doyle CJ in R v BFB (2003) 87 SASR 278 at 283)
The extreme length of time that has passed since the alleged events and the manner in which the allegations involving D are inextricably interwoven with the allegations involving M mean that the same need to scrutinize the evidence relates to his evidence
Finally there is, as I have observed, no satisfactory evidence of complaint.
Accordingly I direct myself that the evidence of M and D is to be scrutinised carefully. I should only rely on it if thoroughly convinced of its truthfulness and accuracy. Factors affecting its truthfulness are the fact that there is no evidence of any timely complaint corroborated by any persons and the fact that the allegations arose so long after the alleged events. Factors affecting accuracy are the lengthy period of time that has elapsed since the alleged events occurred and the fact that M has suffered significant mental issues that bear upon issues of the accuracy of his observations and the fact that no material has been put before me of the exact nature of his mental issues and the effect of them on his accuracy of recall of events.
Evidence that M suffers from delusions
Rather surprisingly, no evidence was led in this case from medical sources as to M’s medical condition. Such evidence as exists comes from M himself and to a lesser degree from his mother, who gave evidence that M suffered from behavioural problems at an early age.
The plaintiff has indicated that he suffers from poly-substance abuse involving abusing drugs and alcohol. (See T104) No evidence has been placed before me as to how this affects his mental condition or his ability accurately to perceive even though the drugs involved are amphetamines and marijuana. (See T40 & T105)
His mother took him to a psychologist over behavioural problems at an early age. (T221)
He has told the court that he has had bi-polar schizo-affective disorder (See T100) but no evidence has been led as to what that is and the effect of it on accuracy of recall.
M told counsel that his mental health problem includes delusional thoughts that he has had for many years. (See T105)
M admitted that he probably did assert, in 1998, that he wanted to be a serial killer. He said that that was while he was on drugs and there were times when he was psychotic and ranting and raving. (See T108)
Over the years he has been admitted to various psychiatric institutions. (T278)
At one stage he wanted police to shoot him. He was mentally unwell and put a machete to his neck. (See T113)
It is significant that M has told the court that he was on drugs at the time he was allegedly seeing the two accused and that he was having mental health problems before meeting P and R. (T105)
M has told me that sometimes he is not compliant with his medication and that he has gone off his medication causing him to end up in a psychiatric facility. I have not been told when he went on medication nor has any evidence been produced as to the consequence of going off his medication other than M’s own evidence.
It would appear that on an admission to Hillcrest Hospital, some time before 16 August 1988, M claimed to be hearing voices telling him to kill people and obtain souls in order to save his own. (See “Discharge Summary” – Exhibit DR41)
On admission on 16 August 1988 M asserted that the hallucinations were true but he wondered whether witchcraft was involved. (Exhibit P38)
Upon admission to Glenside Hospital on 14 October 2000 it was reported that M had been hearing voices telling him to kill people and himself and he had made threats to kill the local GP and had expressed the desire to be shot by police. (See Discharge Summary – Exhibit P38)
NB: This document contains much other highly relevant and useful information as to M’s mental health but I am not permitted to use it by the terms of the agreement as to the basis of tender of the document. In other words it is available only on evidence of things said by M but not distinctly admitted by him under cross examination.
M said that he realised as the years went by that he wasn’t hearing voices, that he was having disturbed thought patterns and that he was on medication to help his thought processes so that he doesn’t hear voices or see visions or have audible or visual hallucinations. (See T115)
He also claimed he was hit with a machete by the son of the head of Correctional Services and was dead on arrival at hospital. (See “Inpatient Progress Notes” – Exhibit DR41, T173, T174 & T176)
He has told the Court that there were many times when he was unwell from using amphetamines and that such use “sends you psychotic when you have too much”. (See T115)
On admission on 10 January 2003 M threatened to form a militia to join Osama Bin Laden to “kill all the white people”. He said that he has a mission to kill and hears God’s voice telling him that he would “look after him”. (See Emergency Record of Consultation – Exhibit DR41)
In October 2002 M was telling people that he was hearing voices in his head telling him to kill his family, but he claims he never had any intention of killing anyone. (See T115)
On 28 June 2003 he claimed he had 16 volumes each containing 300 pages containing clues to unsolved crimes that have happened in the area. (See “Continuation Sheet” – Exhibit DR41)
On 30 September 2004 he was telling the hospital that he had been killed twice. The first time he was given a “hot shot” (injection to kill me), he was resuscitated and sent to ICU where his whole brain was “repacked”. (See “Inpatient Progress Notes” – Exhibit DR41)
When he was in Grade 7 he told people he was dying of lung cancer. (See T130)
M has bizarre beliefs about his stepfather murdering and burying someone at Kersbrook based on information provided by his brother (See T172)
In cross examination by counsel M agreed he had mental health issues since childhood and used to be taken to a psychiatrist by his mother for behavioural disturbances. (See T162)
Alcohol, marijuana and LSD use since a young boy and heavy use of methylamphetamine have made him psychotic.
He had arguments with his mother about snuff movies. (See “Impatient Progress Notes” – Exhibit DR41)
On 30 September 2004 in the Royal Adelaide Hospital he said he had an argument with his mother about “just things over the past about snuff movies”. (See T170) He understood snuff movies to mean “where they have sex, kill and mutilate people”. (See T170)
He agrees that his mother and step-father sold his deceased brother to pay for drugs. He believes this because the information came from his brother D. (See T106, T107, T170 & T179)
Specifically M said in September 2004 that his mother and stepfather sold four of his mates to paedophiles. They were Peter aged 14, Michael aged 13, Rob Kelvin and Alan Barnes. (See “Progress Notes” – Exhibit DR41)
A document directed to the Director of the Royal Adelaide Hospital indicates that the reason for an order being made on 25 September 2004 under the Mental Health Regulations included that during some examination M said he has collected written evidence over 20 years that proves the existence of a network of paedophiles and that his mother and step-father have sold young boys to be killed on camera (snuff movies). (See “Mental Health – First Order for Further Detention” – Exhibit DR41)
His brain had been repacked and stacked into his head. (See T126)
M claims that he says silly things when he is psychotic and under the influence of drugs and alcohol and when off his medication but that he doesn’t really remember his psychotic episodes. (See T171)
He claims that at school at Campbelltown Primary School he was reduced to eating out of bins. (See T114)
As early as 1988 he thought he was hearing voices in his head. (See T115)
He also agreed with counsel that for years he has had a particular obsession with the “Family Murders”. (See T118 & T177)
This is a preoccupation with paedophiles and the murder of Mark Langley, Peter Stogneff and Alan Barnes. It is an agreed fact that the “Family Murders” refer to a series of murders that were the subject of some publicity.
The “Family Murders” was a term commonly used in the media to describe a number of crimes committed in the late 1970’s and early 1980’s. These included the murders of Alan Barnes, Richard Kelvin, Peter Stogneff and Mark Langley. The crimes involved allegations of acts of sexual assault on male victims.
(See Exhibit P37, No.10)
M claims to have been taken to the “home” of Bevan Von Einem. In fact it was a flat not a house and in any event, when taken past it he failed to identify it. This, says the defence, is a false belief and is part of the obsession with the “Family murders”.
He has been aggressive towards doctors and other medical practitioners when psychotic. (See T179 & T180)
As a product of psychosis he held his partner hostage in his car for a couple of days. (See T180) M is specific however, that what happened between the accused and himself was not a psychotic delusion. (See T181) He is unable to remember the last time he had a psychotic episode and claims that he is taking medication and is well while on medication and that he does not use amphetamine anymore. (See T178)
A note on 22 October 2009 indicates that there was a legal appeal of an undisclosed nature during which M had “underlying preoccupation with paedophiles and the murders of Mark Langley, Peter Stogneff and Alan Barnes”. (See “Continuation Sheet” – Exhibit DR41)
On 16 January 2010 a document entitled Continuation Sheet from the Central Northern Adelaide Health Service notes that on that day M spoke about his girlfriend and that she screams at him constantly and he does so much for her, nothing is good enough for her and that he said he might as well break her neck and do 10 years for murder and he’d be 50 when he got out of gaol and then he wouldn’t have to put up with the abuse. (See Continuation Sheet” – Exhibit DR41)
At the same time M claims he had been assisting police with the “Family Murders” and paedophile investigations.
Counsel submit that lots of things were happening to M at that time with lots of different people leading to a path of confusion and wrong attribution.
It is the contention of the accused that because M has admitted to a long history of bizarre and delusional behaviour there is a real danger that the nature of the relationship he is describing between himself and the two accused is delusional.
During the course of cross examination a large number of assertions that M is alleged to have made were put to him. In the main they were denied or were not distinctly admitted.
Accordingly, a series of photocopied documents comprising hospital notes has been tendered to prove the making of the statements by M. (See Exhibit DR41)
As I have observed the documentation in Exhibit DR41 is before me only as evidence of prior inconsistent statements or statements not distinctly admitted and are not evidence in relation to any psychiatric disorder or diagnosis.
Despite the fact that the documentation appears to be medical records of M from hospital and contains useful information the terms of the agreement between counsel to permit the tendering of the material permits me to use it only for the purposes of establishing the utterances of M and not for diagnoses etc.
The case for the defence is that the utterances demonstrate bizarre and demonstrably wrong beliefs and thought processes. The defence say that this combined with the admissions by M himself as to his mental condition means that it would be extremely unsafe to rely on the evidence of M in circumstances where it is the only evidence on the topic.
My own assessment of M in his evidence was that whilst giving evidence he did not demonstrate abnormal or illogical thought processes.
When confronted by the suggestions that he had made bizarre statements in the past he either explained them as the product of his mental illness and assured that he was no longer suffering from mental illness because he was taking medication or denied making the statement or was equivocal about whether he made the statement.
Insofar as he showed equivocation or denial in relation to the making of the statement I did not regard it as the product of dishonesty but rather a lack of memory of having made the statement or doubts as to whether he would have made the statement given its illogicality.
When he admitted making a dubious statement he usually had a logical explanation for saying it at the time. Such explanation usually involved an assertion that he was suffering from illness at the time of the making of the statement and that he no longer believed what was asserted to be so.
Again I am hampered by the lack of any expert medical evidence on his medical condition.
In particular I have received absolutely no help on the topic of whether one recovers from having a delusion which is a product of mental illness or drug use and whether, if one recovers one perceives that previously one was asserting a delusion and whether one perceives that a previous belief was no more than an delusion.
While I may have some knowledge of these matters as a result of hearing evidence in other cases and reading medical reports I do not think that it is material that I can properly bring into this case or take judicial notice of.
I therefore, for the purposes of this case, remain entirely in the dark about the thought processes and prognosis of a person suffering mental illness which includes psychosis and the thought processes that apply to things that happened in the past when one is recovered from the psychosis. This lack of information is in relation to the most crucial witness in the prosecution case.
I find the lack of information provided about the mental condition of M to be troubling as I am satisfied that M has suffered from mental conditions for a significant part of his life which caused him to believe things which were not true. This reinforces the need for the warning and the need to seek independent confirmative evidence of the allegations of M.
Matters affecting the credibility of M
There is the evidence relevant to his mental state.
He is certain that he never met another person called “Andrew” at the relevant time. (T147) This is inconsistent with the evidence of Roper (Exhibit P21), Cruickshank (Exhibit P18), Nugent (Exhibit P19), Bryan (Exhibit P20) and Hodges (T246)
I find that the group of friends knew two persons by the name of “Andrew” one of whom was P.
M claims that P had sex with the other boys (T124) but none of the other boys claims that to be the case or to have seen that.
He gives an account of an occasion when Roper was going to have sex with P for $10. Roper’s account makes no mention of any such occasion. (See T66) Indeed he says he was never the subject of a sexual relationship by P. (T221)
M claims that when intercourse occurred with D, Bryan Nugent and Roper were there (T66 & T70) but none of them gave any evidence of witnessing anything sexual happening to D.
M claims he told his brother about P’s sexual activities with him but D says only that M informed him that P gave him money and marijuana. (See T202)
Simmons said he went to the flat a few times but never saw any alcohol, drugs or mention of sexual activity. (T254)
M as a young child liked to be the centre of attention and pretended he had cancer. (See T105)
He says that he had sex with the other members of his friendship group, (See T126 – T127) yet none of the witnesses who gave evidence were asked about that or supported the propositions.
He asserts that P would “give everyone head jobs one at a time”. (See T126) None of the other witnesses called were asked about that or supported it.
He said there was sex between Hodges and Cruickshank and the accused P yet there is no support forthcoming from Hodges or Cruickshank. (T72)
M says the meeting with P occurred within one or two weeks of Alan Barnes’ death. (T45) This is not possible given that the evidence establishes P to have been in Tasmania until mid 1980.
He was obsessed with the “Family Murders”. (T177)
His long answer about learning about the dangers of “stranger danger” from living homeless in New South Wales in his 30’s (see T110) and carrying a machete and being “elevated”; (See T112 – 112) is odd, to say the least.

He claims that there was incest going on within his own family yet D was not aware of it. (See T206) and no evidence was led that supported it.
He described R as being over six foot tall and circumcised. Clearly these assertions are not true. (T303)
He said that he believed that all his friends were having sex with each other (T126) and he still believes that. When asked the reason for his belief he said that he was having sex with these lads. (T126 & T127) These “lads” didn’t say anything one way or the other on the matter in evidence.
His assertion that all his friends were being sexually abused by P (T126) is not confirmed by the witnesses.
Cruickshank says he went with M to a home near Channel 9 occupied by a “Dr Steve”. M denies knowing Dr Steve. (See T143)
M claims he introduced R to his mother as “Pedro” but she refutes it. (T269)
He claims that he had sex with R on one occasion when he was babysitting for Christine Ball. She emphatically denies that she ever had him babysit for her. (T267)
Simmons has no recollection of any drugs or alcohol being consumed at P’s flat. (T254)
Matters where confirmative evidence of the complainant M might have been expected
M met P and R with Hodges, Cruickshank and Roper on the first occasion when they met. (See T445) He asked the others if they wanted to come. (See T46) No witness confirms this.
He asked P if they were “homos” as Alan Barnes had just died and it was fresh in his memory. (See T47) As already pointed out they could not have met at a time when Alan Barnes had just died.
He claims P performed oral sex on D in the lounge room in front of their friends. (See T166) No witness confirmed this, not even D himself. Roper was there and did not see it. (T222) Bryan and Nugent also fail to confirm it
R paid Roper $10 to suck his penis. (See T56) No confirming evidence was forthcoming from Roper. (T221)
M would go to P’s flat about once per fortnight with friends. (See T168) No supportive evidence was led.
His friends knew P was gay and liked little boys. (See T68) These friends he was referring to were Bryan, Roper, Cruickshank, Nugent and D, his brother. (See T70) They do not confirm this.
Although Simmons when to P’s flat on a number of occasions with M he does not depose to seeing any sexual activity.
There was an occasion when M vaguely remembers P having sex with Cruickshank. The latter does not confirm it. (T124)
M drew a plan of premises supposed to be premises P lived in with another person near Glen Osmond Road but the plan was never verified. (T280)
M recalls that P performed oral sex on a couple of his friends. (See T76) No one confirms it.
M went to the flat of Von Einem. He drew a plan of the flat. (See T85) There is no evidence as to whether or not this plan is accurate. (T280)
He claims to have met R at Salisbury, on the corner of Dean Road and Kelsey Road. On that occasion Bryan, Roper and Hodges or Cruickshank were said to have been there. (See T86) No evidence was led to confirm this.
He introduced R to his sister as “Pedro”. (See T87) His sister, while confirming that an adult was introduced to her as “Pedro” failed to identify R and claims that M introduced this person as a radio producer and announcer; which he clearly was not.
He claims he saw Lynda Hanson with a horse at Direk. (See T88) (See Statement of Witness – Exhibit D36). This is on an occasion when he was being sexually interfered with by R. He told Hanson, on the following Monday at school, that it was him who had been there and seen her. (See T89) Hanson fails to confirm this and her evidence that there was an occasion when she saw a car parked near where she was riding is of no forensic value.
He babysat twice for a woman by the name of Christine. (See T90) The witness totally refutes it.
R used to send him next door to have sex with a neighbour whose premises he drew a plan of. (See T95) There is no confirmation that a neighbour capable of being the relevant person even lived there nor is there confirmation of the accuracy of the plan.
M also claims to have told his friends Roper, Cruickshank and Hodges about P and R and their sexual activity with him. (See T96) He also told his brother about P and R. (See T98 & 104) None of these witnesses confirm that they were told this, e.g. Roper was not asked.
He is certain P had sex with Hodges and Cruickshank. (See T126) They do not confirm this.
M himself was having sex with all the boys as well and it was common knowledge between all the friends that sex was going on. (See T126 & T127) No other person confirms this.
He had sexual relations with his brother D after meeting P and R. (See T127) D does not confirm this.
He said there was incest within his family. (See T 127, T129) There is no evidence to confirm this. (Evidence of D, T206)
He said his stepfather had previously killed someone. (See T130, T172 & T173) There is no evidence to confirm this.
On the occasion that M took D to the flat of P, Nugent, Roper, Cruickshank, Bryan and Hodges were all there. (See T138) The act took place in the lounge room. (See T138) No other witness confirms this.
R was introduced as “Pedro” to M’s mother. (See T151) She denies this.
M claims that R owned a Valiant station wagon at the time of these incidents. No evidence has been led that he did own such a vehicle.
Hodges does not confirm the incident M claims he witnessed involving a sexual assault on D even though he was there. (T241)
M claims that while visiting at Main Street he used to have sex with the neighbour but no evidence was led that there was even a person matching the description given (T133) ever living there.
The above matters would be highly relevant as it would be proper for the prosecution to lead this evidence as corroborative of the accuracy of his recollections, a very crucial issue due to the suggestions of mental illness.
The lack of any confirming evidence about any of the above matters is of grave concern.
Evidence affecting credibility of D
D claims that he attended the premises of P with M, Roper and either Hodges or Cruickshank. (See T193) Roper did not see any sex involving D. (T221) No evidence was led that any of the others saw sex take place.
While there he claims he became drunk on alcohol provided to him and went at P’s suggestion to the bedroom to lie down. (See T197)
When he awoke he walked into the lounge room. His friends were still at the premises. He sat on the chair in the dining room and P started to unbutton his jeans and pull his pants down and began to masturbate him and he pushed P away and re-zipped his pants up. (See T198)
He was touching on the testicles and on the penis. (See T199)
They all left together after about 30 minutes. (See T200) Nothing was discussed about what happened, there was no point in discussing it as he felt everyone must have known what happened. (See T200)
There is no confirmation of the above from other witnesses who were said to be there.
He was a heavy user of amphetamine which caused his mental problems. This heavy used started in 1998. (T206)
Hodges stated that he was there on one occasion that D went to P’s flat yet he gives no evidence of any sexual incident occurring involving D. (T241)
D told M he did not remember what happened in the bedroom. (T139)
Again, the failure to hear any confirmatory evidence when a number of persons should have been in a position to give confirming evidence is very concerning.
The charges
Count 1 is a charge of Persistent Exploitation of a Child in respect of P.
The first leg of this offence is alleged to have occurred on the first occasion when M meets P and goes to his flat at Jaffrey Street with R and P.
Count 3 is a similar charge in respect of R and is the first leg of the charge again relating to the first occasion when M went back to the flat at Jaffrey Street.
In relation to P the second leg of the charge is said to be made out the second time M went back to Jaffrey Street. On this occasion it was P alone who was present.
The second limb in relation to Count 3, the charge of Persistent Sexual Intercourse against R is made out the next time R performs an act of sexual exploitation against M.
In the case of P it was said to be about a month later he went to P’s flat and sexual activity occurred.
On the next occasion M claims to see R again. He was picked up by both accused, taken back to the Jaffrey Street flat and further acts occurred between him and P and him and R.
It is the acts of sexual exploitation committed by R on this occasion that constitute the second limb of the offence of Persistent Sexual Exploitation of a Child in Count 3.
Count 2 relates to the alleged offence involving D.
Count 4 is the first act of fellatio on the first occasion at the Jaffrey Street flat.
Count 5 is the first act of anal penetration.
Count 6 is the second act of fellatio.
Count 7 is the second act of anal penetration.
In relation to Counts 4 and 5 it is R who is the principal offender and in relation to Count 6 and 7 the prosecution cannot say who was the principal offender but that the offences occurred with both accused present and both part of a joint enterprise.
Conclusion
In the end I am not prepared to find beyond reasonable doubt that the relationship between either accused and M, or for that matter D, was a sexual relationship.
There is the undoubted history of M having delusional beliefs.
I am troubled by the fact that no evidence has been presented to me that the complainant is now mentally well. Nor has any evidence been presented to me that if the complainant is well it means that he is able to distinguish between reality and past delusional beliefs.
If neither side wishes to enlighten me by expert evidence, then I am in the position where the doubt that exists on account of the complainant’s history is not dispelled.
There is a lack of confirmatory evidence which might be expected given the number of persons one might have expected to be in a position to cast light on the relationship of both complainants with both accused.
The fact that there was a relationship between the complainant M when he was some 14 years old with much older persons namely, the two accused, causes me to have suspicions that the nature of the relationship may well have involved illicit sexual relations. There was nothing wrong with the way both complainants gave their testimony. I had the distinct impression that at the time of giving evidence M was not suffering from any mental condition causing a break with reality.
Warning myself, however, of the need to scrutinise the evidence carefully, the combination of the staleness of the allegations, the unresolved issue of the extent of M’s mental illnesses in the past and the lack of confirming evidence where it might be expected has left me in the position that I cannot be satisfied beyond reasonable doubt.
In all the circumstances there is a reasonable doubt in my mind as to the guilt of the accused of having a sexual relationship with the complainants.
Accordingly, I return verdicts of not guilty.