R v Pearce
[2013] SADC 89
•5 July 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PEARCE
Criminal Trial by Judge Alone
[2013] SADC 89
Reasons for the Verdict of Her Honour Judge McIntyre
5 July 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused was charged with two counts of persistent sexual exploitation of a child, five counts of unlawful sexual intercourse and four counts of indecent assault involving three complainants. Trial by Judge Alone.
Verdict - Guilty counts 1 and 4. Not guilty counts 6, 7, 8, 9, 10 and 11.
No verdict required on counts 2 and 3 charged as alternative to count 1.
Count 5 charged as alternative to count 4.
Evidence Act 1929 s34P, 34Q, 34R, 34S, referred to.
R v Maiolo (2) [2013] SASC FC 36; R v MJJ, R & CJN [2013] SASC FC 51; R v M, BJ (2011) 110 SASR 1 at 16, considered.
R v PEARCE
[2013] SADC 89Introduction
The accused was charged on Information dated 13 May 2013 with two counts of persistent sexual exploitation of a child, five counts of unlawful sexual intercourse and four counts of indecent assault involving three complainants: RP, GK and TC.
The particulars are as follows:-
First Count
Persistent Sexual Exploitation of a Child.
Particulars of Offence
Andrew Knoller Pearce between the 29th day of September 1994 and the 28th day of September 2002 at Valley View, committed more than one act of sexual exploitation of RP, a person under the age of 17 years, over a period of not less than 3 days, by touching his penis, performing an act of fellatio upon him, and having him perform an act of fellatio upon Andrew Knoller Pearce.
Second Count
Unlawful Sexual Intercourse
Particulars of Offence
Andrew Knoller Pearce between the 1st day of January 1998 and the 31st day of December 1998, at Valley View, had sexual intercourse with RP, a person of the age of 10 or 11 years, by having him perform an act of an act of fellatio upon him.
Third Count
Unlawful Sexual Intercourse
Particulars of Offence
Andrew Knoller Pearce between the 29th day of September 1998 and the 28th day of September 2000, at Valley View, had sexual intercourse with RRP, a person of the age of 11 or 12 years, by having him perform an act of an act of fellatio upon him.
Fourth Count
Persistent Sexual Exploitation of a Child.
Particulars of Offence
Andrew Knoller Pearce between the 1st day of January 1997 and the 31st day of December 2000, at Valley View, committed more than one act of sexual exploitation of GK, a person under the age of 17 years, over a period of not less than 3 days, by touching his penis, performing an act of fellatio upon him, and having him perform an act of fellatio upon Andrew Knoller Pearce.
Fifth Count
Indecent Assault
Particulars of Offence
Andrew Knoller Pearce between the 1st day of January 1997 and the 31st day of December 2000, at Valley View, indecently assaulted GK, a person between the ages of 11 and 14 years.
Sixth Count
Indecent Assault
Particulars of Offence
Andrew Knoller Pearce between the 5th day of June 2000 and the 31st day of March 2001 at Glenelg North, indecently assaulted TC, a person of the age of 13 years.
Seventh Count
Unlawful Sexual Intercourse
Particulars of Offence
Andrew Knoller Pearce between the between the 5th day of June 2000 and the 31st day of March 2001 at Glenelg North, had sexual intercourse with TC, a person of the age of 13 years by performing an act of fellatio upon him
Eighth Count
Unlawful Sexual Intercourse
Particulars of Offence
Indecent Assault
Andrew Knoller Pearce between the between the 5th day of June 2000 and the 6th day of April 2001 at Maslins Beach, had sexual intercourse with TC, a person of the age of 13 years by performing an act of fellatio upon him.
Ninth Count
Indecent Assault
Particulars of Offence
Andrew Knoller Pearce between the between the 5th day of June 2000 and the 6th day of April 2001 at Maslins Beach, indecently assaulted TC a person of the age of 13 years.
Tenth Count
Unlawful Sexual Intercourse
Particulars of Offence
Andrew Knoller Pearce between the between the 5th day of June 2000 and the 28th day of November 2001 at Valley View, had sexual intercourse with TC, a person of the age of 13 or 14 years by performing an act of fellatio upon him.
Eleventh Count
Indecent Assault
Particulars of Offence
Andrew Knoller Pearce between the 5th day of June 2000 and the 28th day of November 2001 at Valley View, indecently assaulted TC, a person of the age of 13 or 14 years.
In respect of RP counts 2 and 3 are alternatives to count 1 and in relation to GK count 5 is an alternative to count 4.
The accused entered pleas of not guilty to all counts and elected to be tried by a Judge without a jury.
Outline of the Prosecution Case
The prosecution alleges that the accused committed the offences between 1994 and 2001. At the time of the offending alleged in respect of each of them RP was aged between 7 and 14, GK between 10 and 13 and TC aged 13.
The accused was a close friend of RP’s parents and lived with them, RP and his younger sister at their family home from the mid-1990s to late 2001 or early 2002. GK was a neighbour and friend of RP. Both RP and GK were members of a football club and a cricket club. The accused had a keen interest in sport and was also associated with those clubs.
The prosecution alleges that the accused carried on a sexual relationship with RP from around 1994 to 2001 and with GK from around 1997 to 2001. It is alleged that there was a regular pattern of sexual acts including mutual masturbation and fellatio that took place either at RP’s home in the accused’s bedroom, a spa in the bathroom adjacent to the bedroom occupied by RP’s parents or in a pipe at a nearby creek reserve. It is said that these acts generally occurred on weekends when RP’s parents were away from the home at church and the accused had given RP and GK a lift home from football.
It is alleged that the accused would offend against RP and GK in the other’s presence. It is also said that the offending would at times occur after he had provided or shown them pornography either in adult magazines or on the computer in the accused’s bedroom.
The prosecution say that the accused met the third complainant TC in around 2000 at the cricket club. RP and GK did not share a close friendship with TC but were acquainted with him through the cricket club. The accused would collect TC from his mother’s house and take him to and from cricket. It is further alleged there were occasions when TC stayed overnight at RP’s house when the P family was away. It is alleged that the accused engaged in sexual acts with TC including masturbation and fellatio and that these occurred at TC’s home, Maslin’s Beach and RP’s house. On an occasion at RP’s house it is alleged that GK was present when sexual acts occurred in the accused’s bedroom and the spa bath.
The defence case is that the accused’s association with each of the three complainants was innocent. The accused denied any touching of the type alleged to constitute the indecent assault, the unlawful sexual intercourse and the persistent sexual exploitation.
Preliminary Issues: Discreditable Conduct and Severance
Two preliminary issues arose as to the admissibility of evidence of discreditable conduct by the accused and, depending upon the ruling on that topic, whether certain counts on the information ought to be severed. The argument on these issues took place as part of the closing addresses.
In summary, the prosecution contends that the evidence of each complainant as to each count is cross-admissible on every other count. The accused does not dispute the cross-admissibility of the evidence of RP and GK insofar as they were, on the prosecution case, eye witnesses to the offending of the accused upon the other. The defence however contends that the evidence of TC is not cross-admissible with RP and GK and vice versa.
Admission of this evidence is governed by the provisions on discreditable conduct in the Evidence Act 1929 and in particular s.34P which provides as follows:
34P—Evidence of discreditable conduct
(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 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).
This provision and others dealing with the topic of discreditable conduct have only relatively recently been included in the Evidence Act. There is however helpful guidance on their application from the Court of Criminal Appeal in recent decisions including R v Maiolo (2)[1], R v C, CN[2] and R v MJJ, R & CJN[3].
[1] [2013] SASCFC 36
[2] [2013] SASCFC 44
[3] [2013] SASCFC 51
In R v MJJ, Her Honour Justice Vanstone summarised the changes as follows:
In my opinion the changes made by s 34P, s 34Q, s 34R and s 34S may be briefly stated as follows:
1.The test for admissibility established in Hoch that propensity evidence, if accepted, bear no reasonable explanation other than the inculpation of the accused person and the offence charged no longer applies – see s 34S(a);
2.The possibility of collusion or concoction by the witnesses attesting to the similar events is no longer a ground for exclusion – see s 34S(b);
3.The exclusionary rule which formerly regulated the admission of propensity or disposition evidence is now extended so that it applies to discreditable evidence introduced for non propensity purposes – see s 34P(2)(a).
For such evidence to be admissible the judge must now be satisfied that the probative value of such evidence “substantially outweighs any prejudicial effect it may have on the defendant”;
4.The criterion for admission of evidence tendered to demonstrate a particular propensity or disposition is now that the evidence has “strong probative value having regard to the particular issue or issues arising at trial” – see s 34P(2)(b).
Section 34Q is a codification of a common law rule.
Again, s 34R gives statutory effect to rules of long-standing. Section 34R(2) embodies the rule in Shepherd v R (1990) 170 CLR 573.
It is always for the party tendering evidence to demonstrate that it is relevant and admissible, and, if so, that it should not be excluded in the exercise of the general discretion. I do not see s 34P as casting a new onus on the tendering party or otherwise as altering that position. [4]
[4] R v MJJ see note 3 above paras 244 - 247
In the same decision His Honour the Chief Justice said as follows:
Section 34O of the Evidence Act provides that the provisions of Part 3 Division 3 of the Evidence Act prevail over the common law to the extent of any inconsistency. That provision implicitly accepts the continued operation of common law principles which are not inconsistent with Part 3 Division 3 of the Evidence Act. The common law authorities which have considered the probative force of discreditable conduct evidence, and the weighing of its probative force against its prejudicial effect, continue to inform the application of s 34P of the Evidence Act. I respectfully agree with the observations of Vanstone J in this respect. Part 3 has modified the common law in two important aspects. First, the rule derived from common law authorities in Hoch v R, which precluded evidence of similar offending on different complainants when there was a possibility of concoction, has been abrogated by s 34S(b) of the Evidence Act. Furthermore, s 34S(1) of the Evidence Act has abrogated the rule stated in Pfennig v R which precluded discreditable conduct evidence when there is a reasonable explanation of that evidence consistent with innocence.[5]
[5] Paragraph 13 – citations omitted
Section 34P(1) provides that evidence of discreditable conduct is inadmissible subject to s 34P(2). The question whether to admit evidence under s 34P(2) is a question of law.[6] Section 34P(2) divides discreditable evidence into two categories. Section 34P(2)(a) deals with non propensity uses. Propensity or disposition evidence is dealt with in s 34P(2)(b).
[6] R v MJJ, see note 3 above
The prosecution set out the evidence of discreditable conduct and the purpose for which it was sought to be lead in written submissions.[7] The prosecution’s principal submission was that:
..there are common features as between the sexual offending committed against each complainant that taken as a whole disclose a nexus or underlying unity in the commission of the offences by the accused such as to render the evidence of each count cross admissible on every count.[8]
[7] Outline of Prosecution Submissions 22 May 2013
[8] Submissions paragraphs 1 & 17
The “permissible use” of the evidence of offending was said to be as proof of whether the offending occurred at all – specifically to bear on the probability of the happening of the events and to disprove accident or innocent association.
The prosecution contended that there was an underlying unity “in features of the accused’s conduct against each complainant as it relates to the specific charged offending, as well as the uncharged conduct and relationship evidence”.[9] This was set out in the written submissions under the following headings:
[9] Submissions paragraph 18
1Family & Sporting Club connection.
2Grooming & gaining of trust.
3Role model/authority figure.
4Pornographic material
5Beach visits/nudity.
6Similar age and gender.
7Offending locations.
8Sexual modus operandi.
9Sexual activity in the presence of others.
It is my view that many of the items alleged by the prosecution to give rise to underlying unity have their basis in the accused’s close relationship with the P family and the access this gave him to RP and GK. This includes gift giving and outings, his role as an authority figure or role model within the P family, the offending locations, the age of RP and GK. The relationship with the P family does not apply to TC but there is limited similarity to the offending alleged against him to that alleged in relation to GK and RP. There were no allegations of gift giving to either TC or GK. The outings were not consistent between the three complainants. The offending locations against TC varied in counts 6 to 9 inclusive from those involving the other two complainants. The accused’s position as a role model or authority figure had a different basis for TC compared to RP and GK.
Whilst it is clear that each of the three complainants and the accused shared common sporting interests the sporting interests are unremarkable and not age specific. The accused’s connection with the football club and the cricket club was founded in his interest in those sports. His involvement in those particular clubs was precipitated by his relationship with the P family. It is uncontroversial that he attended both clubs initially as part of the P family. His interest in those sports being greater than that of RP’s father he became more involved in the clubs as a player, coach and administrator and would transport RP to and from his sporting commitments. The accused’s involvement therefore came about by reason of his living arrangements at the time. His meeting with TC at the cricket was fortuitous rather than as part of a system or plan.
Only TC alleges sexual offending occurred at Maslin’s Beach – the others do not. Evidence of nudity at the beach is not consistent. Likewise, the sexual modus operandi in respect of the various counts is not particularly striking nor is it unusual. RP and GK both gave evidence that they were regularly present when the accused committed sexual acts against the other and were involved in sexual acts with one another in the accused’s presence at the P home and the nearby creek. There is no similar evidence in respect of TC. TC said he was present and naked in the spa at the P’s house with the accused and GK when the accused committed sexual acts in respect of TC. GK did not give evidence about this.
The evidence about pornographic material was not consistent between the three complainants. RP says the accused showed him and GK magazines with adult heterosexual pornography and let them look at homosexual and underage pornography on his computer. RP described taking magazines to the creek. GK says he and RP found magazines containing adult heterosexual pornography hidden in the accused’s bedroom. The accused did not show it to them. GK denied taking magazines to the creek. GK said that the accused showed homosexual pornography to him and RP homosexual pornography on the computer in the accused’s bedroom and that subsequently he and RP surfed the net looking for pornography. The evidence of TC did not suggest use of pornographic material on computer or in magazines being associated with sexual offending. TC referred to watching a pornographic video at the P house with the accused and GK. GK did not give evidence about this. Neither RP nor GK referred to viewing pornographic videos on the TV.
I therefore reject the prosecutions submissions about underlying unity.
However, the evidence of RP and GK that they were regularly present when the accused committed sexual acts against the other and were involved in sexual acts with one another in the accused’s presence at the P home and in the nearby creek has highly probative value as corroboration and confirmation of some of their evidence. The fact that each was subject to these acts further explains their lack of complaint when they witnessed sexual acts involving the other. The question of concoction between the two has also been raised and accordingly I need to determine the totality of their allegations.[10] These matters do not arise in relation to TC.
[10] R v M, BJ (2011) 110 SASR 1 at p16.
I therefore consider that the evidence of RP and GK as to each count and as to uncharged acts ought to be cross-admissible. I am not however prepared to rule that the evidence of RP and GK be cross-admissible in respect of TC and vice versa.
This leads then to the question of whether I should sever the charges relating to TC. Having considered this question I have determined not to do so but rather to exercise my discretion to return verdicts in relation to those counts on the information.
Legal Considerations & General Directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of an offence, then I must give the accused the benefit of the doubt and find him not guilty.
·The charges are separate but tried together for the reasons set out above. Each is a separate offence. I must therefore consider each separately and return separate verdicts on each.
·In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·I remind myself of the directions required as to the use of the uncharged acts received under s34P[11].
·In relation to defence submissions concerning delay I remind myself of the directions required as the question of forensic disadvantage.[12]
·I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
[11] Maiolo (2) see note 1 above per Peek J at paragraphs 68-99
[12] Section 34CB EA; Maiolo (2) see note 1 above.
The accused elected to give evidence in this court. I remind myself of the following matters:
·He was not bound to give evidence.
·He has gone into the witness box and he has taken the oath like any other witness.
·He has exposed himself to the test of cross-examination.
·He could have remained silent leaving the prosecution to discharge its burden of proving the case.
·I should assess his evidence and the weight to be attached to it in the manner in which I assess the evidence of all of the other witnesses.
·I further note that by entering the witness box the accused does not assume any onus of proof. The onus remains with the prosecution.
I remind myself that it is not a question of preferring one version over the other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charges beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge then necessarily it means that the prosecution has failed.
Elements of the Offences
I now turn to the elements of the charged offences as they were at the time they were allegedly committed. The prosecution must prove each element beyond reasonable doubt.
Persistent sexual exploitation of a child (Counts 1 & 4)
The prosecution must prove each of the following elements beyond reasonable doubt.
1.That accused was an adult person.
2.That over a period of not less than three days the accused committed more than one act of sexual exploitation.
3.That the complainant was under the prescribed age, i.e. under the age of 17 years.
Sexual exploitation is where a person commits an act that could be the subject of a charge of a sexual offence. The sexual offences alleged here are touching of the penis and acts of fellatio. There is no doubt as to the age of either the accused or the complainant in either charge. The contentious issue is whether the prosecution has proven the second element of the offence.
Unlawful Sexual Intercourse (Counts 2, 3, 7, 8 & 10)
The prosecution must provide each of the following elements beyond reasonable doubt:
1.That the accused had sexual intercourse with the complainant, sexual intercourse includes fellatio.
2.That the complainant was under the age of 17 years at the time.
Again there is no dispute as to the age of the three complainants at the time of the alleged events. The contentious issue in respect of each charge is whether the prosecution has proven that the accused had sexual intercourse as alleged.
Indecent Assault (Counts 5, 6, 9 & 11)
The prosecution must prove each of the following elements beyond reasonable doubt:
1. An application of force to the complainant.
2. That the application of force was deliberate or intentional.
3. That the application of force is unlawful.
4. The complainant did not consent to the application of force.
5. It was accompanied by circumstances of indecency.
The key issue in respect of each of these counts is whether the prosecution has proven that the accused touched each complainant as alleged in each count. The circumstances of touching in each count indecent and there was no suggestion of a lawful excuse for the touching. Each complainant was incapable of consenting due to their age at the time.
Undisputed facts
RP was born on 29 September 1987. He is the eldest child of GP and RDP. The accused met RP’s father RDP in around 1980. Their friendship developed from that time on. RDP met his future wife, GP, in the early 80’s and she too became a good friend of the accused. Indeed the three of them shared accommodation for a period of time before and after the P’s marriage. The accused was treated as a member of the P family and they shared many mutual friends. The accused returned to live with RDP, GP and their two children, including RP, in the mid-1990s. He remained there until late 2001 and early 2002. It is the prosecution case that he took advantage of this proximity to offend against RP and, through him, his best friend and neighbour GK.
The accused had considerable interest in sporting pursuits. This interest was shared by RP. His father, RDP, was less interested in sport. It is plain that sport was a bond between the accused and RP. The accused was actively involved in RP’s football club and cricket club. Accordingly the accused regularly took RP to and from his football and cricket commitments.
GK, who was born on 15 July 1986, lived a few doors away from RP’s house. He and RP were close friends and remain so. GK was also interested in sport and for a time played in the same football and cricket clubs as RP. There is some dispute as to the dates of his involvement with those clubs and whether the accused provided transport to GK as well as RP.
TC was born on 5 June 1987 and had a troubled upbringing due to the separation of his parents and the ill health of his mother. At the time he first met the accused he was living with his mother who was raising him as a single parent. He was involved in the same cricket club as RP and GK. Whilst the three boys knew each other and, for a time, played in the same team, their relationship was not close. They have not remained in contact.
The parties also agreed a number of matters which are set out in a statement of agreed facts.[13]
Evidence
[13] Exhibit P4
RP – Complainant Counts 1 - 3
RP said that he has known the accused all his life. The accused was in effect a member of his family and RP had a very close relationship with him. RP described him as like a second father. It was clear from his evidence and demeanour that RP was very attached to the accused. RP said that the accused would take him to most of his sporting activities and to places such as Magic Mountain, go-karting and the movies. He described the accused as buying him extravagant gifts on his birthdays and at Christmas and as making him feel special.
RP said that whilst the accused was living at his house, there were many took the form of masturbation and oral sex. He said that this sexual activity occurred either in the accused’s bedroom or the spa in the bathroom next to his parent’s bedroom. RP said he could not recall a time when the accused lived with them that these things didn’t happen. He described the activities as taking place about once a fortnight over a period of several years –from the time the accused went to live with his family in the mid 1990s until RP started high school in 2001 when the accused stopped the activities.
RP said that GK became his best friend shortly after they met at football. RP believes this was when he was 12.[14] GK was thereafter frequently present when RP and the accused engaged in mutual masturbation and performed oral sex upon each other. RP said that he observed the accused and GK doing the same things to each other as he did with the accused – that is masturbation and oral sex. RP and GK would do these things to each other whilst the accused watched them.[15]
[14] Transcript p39-40
[15] Transcript p36; 39-40
RP said that he went to Maslin’s Beach with the accused and GK. He said he thought it was summer and prior to him commencing high school. He recalled it being close to the Nude Olympics because of a throwaway line from the accused about not getting caught on TV at the nude beach. He did not recall seeing any signs of an event at the beach nor did he recall any mention of a dare. He said that there was no sexual activity between the three of them at the beach. He said the accused said they didn’t have to take their clothes off if they didn’t want to but that he and the accused took their clothes off and he thinks GK did as well.[16]
[16] Transcript p44-46
RP said that the accused made it feel as if looking at pornography was natural and normal. The accused showed him and GK some magazines featuring adult heterosexual pornography and then homosexual pornography featuring young boys on his computer. He said that the accused made him feel comfortable about sexual activity between boys saying it was a learning experience and “boys will be boys”.[17] The general tenor of his evidence was that these activities were a normal and pleasurable part of his life at the time.
[17] Transcript p34
RP does not have a clear memory of all of the occasions that sexual activity happened because of its frequency but he said that he does have a clear memory of two occasions of unlawful sexual intercourse. These are the subject of counts 2 and 3.
The first occasion (count 2) was on a Sunday in the afternoon after football. He said the sun was low and coming through the window. He, GK and the accused were in the accused’s bedroom. He was sitting on the bed, GK was on the computer. They had looked at heterosexual pornographic material in magazines and then they moved onto looking at pornography of young boys on the computer. His family were at church; both he and the accused took their clothes off and lay on the bed. He said that the accused masturbated him and that he did the same to the accused. RP said that he then put his mouth on the accused’s penis and the accused later did the same to him. RP could not recall if either of them ejaculated.
The events that are the subject of Count 3 are said to have occurred at a creek reserve close to his family home. RP gave evidence of an occasion when he was between 11 and 12. He says that it was winter – during the football season. He, the accused and GK took magazines to the reserve. They went into what he described as “the pipe” at the reserve. He said it was a large drainage pipe that was large enough to walk through but not large enough to stand up straight. RP and the accused masturbated each other and also took each other’s penis into their mouths. He thought he ejaculated but was not sure about the accused. He said the accused and GK performed the same acts upon each other.[18]
[18] Transcript p41-44
RP described a number of other uncharged acts. He said that similar sexual activities took place on a regular basis in the accused’s bedroom, the pipe and in the spa next to his parents’ bedroom. In relation to the pipe he described an occasion when GK’s brother SK was also present and participating in sexual activities. GK denied that this occurred or that his brother SK had ever been involved in sexual activities at the creek. It is an agreed fact that SK declined to provide a statement to police.
RP described going on holidays to Tasmania with the accused. He thought this was a birthday present from the accused for his 13th birthday. RP says that sexual activity took place on one occasion in a hotel in Hobart. It involved fellatio and mutual masturbation between him and the accused and another young man called Anthony.[19]
[19] Transcript p46-48
RP said that the sexual activity between him and the accused ended by the time he started high school. He said that his relationship with the accused continued to be friendly but that he saw less of him as the years went by.[20]
[20] Transcript p48-49
RP first spoke about these sexual activities in 2008-09 when he told his partner KD. She was pregnant with their first daughter. She became aware that he had been unfaithful. RP told her during the course of discussions about his unfaithfulness and their relationship that he had been molested by the accused as a child. He told her that “everything occurred” between them “other than anal intercourse”. He said that this happened between the ages of 11 and 14 and that it occurred at home and often down at the creek. He mentioned GK. He said that afterwards he spoke to his parents within a few hours of his discussion with his partner. He was very distressed and concerned that his relationship with KD would end because of his infidelity. He denied that his allegations against the accused were falsely made in order to save that relationship. [21]
[21] Transcript p50-51
KD – RP’s fiancée
KD, RP’s fiancée, met him when they were at school around about 2002. She first met the accused at a family gathering the same year. She and RP now have two children together. The eldest was born in March 2009. She said she had a discussion with RP before the birth of her eldest daughter when she found some information on the computer that indicated he had been seeing someone else. She was very upset about this. She said that in the course of that discussion she questioned everything about their relationship and asked RP if there was anything else she didn’t know about him. She described what he says as follows:-
QCan you tell her Honour what Mr P told you about the accused.
AAbsolutely. He had said from a young age, and this is only approximate, but the age of nine or 10, had interactions with Mr Pearce that were inappropriate for what went on, and that he had – that Andrew had touched him and that did not just – that was not him alone, it was also GK that was involved.
QDid he describe any of the touching to you.
AHe said there was touching and I sort of went on to say ‘Goodness, what else?’ I said ‘Was there penetration?’ and he said ‘No, but everything else’.
QDid he tell you about the frequency of these things.
AHe said it was on a frequent basis at varying times.
QDid he tell you where these things would take place.
AHe said various places. Generally the family home where he was living at. He also indicated that there was – that I was already aware, then there is the creek from the home and they would go down there.
QDid he give you any detail about where in the family home it would happen.
AYes. He actually specified on occasions that they would have baths together and this would also occur in the bedroom.
QDid Mr P tell you anything that the accused had said to him when these things were happening.
AYes. He said to me it was almost drummed into him a comment ‘It’s just what boys do’.
QYou mentioned Mr K earlier.
AYes.
QAnd that Mr P told you that these things happened with Mr K.
AYes.
QDid he give you any detail about Mr K, other than that he was involved.
ANo. they were friends from a very early age, but, yeah; he didn’t specify what had occurred between them. I do remember that G was involved in the bathing together, but there was another occasion where he said G was involved in a trip to Maslin Beach, I believe.
QDid he say anything further about Maslin Beach.
AThat they were naked.
QDid he say anything about going away from the home with Mr Pearce.
AYes.
QWhat did he say.
AHe told me about a time, it would have been when he was in primary school, that Andrew had taken him to Tasmania
QDid he say anything about what happened in Tasmania.
AHe did, yes. He said that these incidents had occurred there as well and there was someone else involved, but I’m not aware of who that is. There was another male.
QMr P, when he was telling you these things, how did he appear.
AAt the time we were both very upset, but he was very – it was a very serious matter. He was very confident in coming forward.[22]
[22] Transcript p86, line 14 to p87, line 33
KD said the last time they saw the accused was at RP’s mother’s 50th birthday in November late 2008. She had not had her conversation with RP prior to that last meeting. Accordingly, her evidence indicates that the complaint by RP was made in December 2008 or early 2009.
GLP – RP’s Mother
GLP, RP’s mother, confirmed the close relationship between herself, her husband and the accused. She said that when the accused was living with them at the relevant time he played a very important role in their family. She described him as part of their family; someone they loved who came to all family functions. She said that he interacted with her son very well. She described them as great mates and the accused as being like a big brother or a father figure to her son.[23] She said that GK also spent a lot of time at their home especially on a Sunday after football. The accused would take her son to and from the football on Sundays because she and her husband attended church with their daughter. They went to the 11 am service and the evening service. Sometimes they came home for lunch.[24]
[23] Transcript p95-96
[24] Transcript p96
She said that the accused would spoil RP buying him elaborate gifts but that he would also buy generous gifts for her. On RPs 12th birthday she said that the accused “being very generous” took him to Tasmania where the accused’s parents lived.
She described being told by her son about his allegations concerning the accused. This arose in the context of significant problems in the relationship between her son and his fiancée. RP was clearly very upset about these problems. She said that RP spoke to her and her husband and her husband about these problems with KD and also told them that he had been abused by the accused. They didn’t push him, they didn’t want detail.
She said that she and her husband later spoke to the accused about RP, following a chance meeting at K-Mart, as follows:
QDid you see Mr P after that conversation with R.
AYeah, we did, we did see him. R had actually said to R that he would talk to Andrew and R was quite upset and quite freaked out about the whole thing so we’d sort of talked and decided that we wouldn’t – I’m not confrontational, so we thought we would just let it go until R was ready. And we were actually in K-Mart and ran into Andrew, within – I’m trying to think if it was within a week or so of having a conversation with R and Andrew asked how I was and wanted to catch up and suggested that we have coffee so he came to our place the next day and so – I’ll continue – so he came in and we thought well obviously this is meant to be, so R decided he would talk to Andrew about it. After the initial pleasantries of just general chatting R explained to Andrew what had happened with R and K and what R had told us and we asked him about it and he didn’t deny it. He said basically that something had happened, that he couldn’t explain, that it had been – they’d been fooling around and gone too far and that he understood we had to support R, he understands completely. It was along those lines.
QWhat was his demeanour like when he spoke to you about R.
AHis demeanour was – he wasn’t angry, he didn’t deny it. He accepted what we were saying. He understood also if we didn’t want to keep in contact with him anymore, and he certainly wanted us to support R.
QDid you say anything to him about how you felt.
AI did say to him that I felt betrayed and he said to me ‘I completely understand’.
QAfter that conversation was there any further contact between you and Mr Pearce.
ANo, I don’t think so. I know once R actually said to us – sorry.
QI’m just more asking questions about what happened between you and Mr Pearce rather than what R told you.
AOkay. Maybe two or three times there might have been contact. Now what sort of contact I can’t remember, but certainly it did stop within a few months.[25]
[25] Transcript p98, line 4 to p99, line 7
RDP – RP’s father
RDP, RP’s father, confirmed the relationship with the accused and the living arrangements. He agreed that whilst he lived with the P family the accused had long working hours. He worked 6 days per week arriving home most weekdays around 7.30pm and working from at least 10am until 1 pm on Saturdays. In effect Sunday was the accused’s only day off. RDP said that he, his wife and daughter would go to church on Sundays and the accused would take RP to football which was also on Sunday. The morning church service finished around 11.30, 11.45 or 12 noon. They did not usually remain at church after that.[26]
[26] Transcript p112-113
RDP said that GK spent a lot of time at their house visiting their son.
RDP said that they went to Tasmania once with the accused but apart from that he and his wife did rarely took family holidays away from home. He recalled the accused taking his son to Tasmania subsequently but was hazy about the dates.
RDP also described his son telling him that things had been going on between him and the accused and that it had erupted through a difficult situation RP faced with his girlfriend. He said that his son was very, very upset about his problems with KD. His evidence about the precise nature of the complaints made by his son was most unclear. He said that he and his wife then confronted the accused with these allegations at their home following a chance meeting at K-Mart.[27] He could not remember the actual words used but thinks it was along the lines that RP said some things went on between him and the accused that shouldn’t have. He said that the accused “was very accommodating” and admitted something inappropriate had occurred between him and RP. He said that he and his wife expressed their disappointment and said it was not appropriate for them to continue contact with the accused. The accused said that he understood how RDP and his wife felt.[28] RDP rejected the suggestion that the accused had denied anything inappropriate had occurred.
[27] Transcript p115-117
[28] Transcript p116
I reject the evidence of RDP and GP about the admissions allegedly made by the accused at the time of the K-Mart meeting. In making this ruling I bear in mind the directions usually given to juries in this state about out of court admissions. The evidence that both RDP and GP gave about the terms of the complaint by their son was very vague and lacking in detail. It seems Mr & Mrs P they were not fully aware of the nature and extent of the sexual misconduct alleged by RP. They did not put details to the accused because they did not know them. It appears the accused did not unequivocally make admissions of any conduct which might amount to the type of conduct alleged by RP. Further despite Mr P’s evidence that they had no contact with the accused after the conversation at K-mart it appears clear there was at the very least phone contact of a friendly nature judging by the content of exhibit D1. These messages were not congruent with the accused making admissions of sexual offending against their son.
SLO – RP’s Aunt
SLO is GP’s sister and RP’s aunt. She has known the accused for over twenty years through her sister. She says he was a friend of all of the family; everybody loved him. She said she was very angry when she heard about the allegations. She said this was probably November/December 2011. She described telephoning the accused and says that he made admissions about molesting her nephew during the course of that conversation.[29] I am not satisfied about this evidence. SLO was plainly hostile to the accused. She admitted being very angry at the time of the conversation. I did not consider that the evidence about the alleged admission was compelling.
[29] Transcript p105
GK – Complainant Counts 4 & 5
GK said he was born on 15 July 1986 the youngest of three boys and a sister. He confirmed his close friendship with RP. They met whilst they played football. GK said he met the accused at RP’s house and would see him there on weekends but not during the week because the accused worked. He and RP would spend time together playing computer games in the accused’s bedroom both during the week when the accused was not there and on weekends when he was. GK played football in the same club as RP in the under 12’s. He generally got to the Sunday football matches either by being taken by his mother or the accused and either his mother or the accused would drive him home. Sometimes they would go to RP’s house after football.
GK’s first memory of sexual activity was when he was 11 and his last memory was when he was 13 or 14. He said that these things occurred between 2 and 3 times per month. He said that they usually involved him, RP and the accused but sometime RP was not there.[30] He said it was generally masturbation and oral sex and that it usually occurred in the accused’s bedroom but on occasion it occurred at the pipe down the creek reserve which he described as “the tunnel” and in the spa at the P house.
[30] Transcript p184
GK did not have a clear memory of every occasion something happened because it happened often. He recalled one specific occasion when he was 11 when the accused masturbated GK by placing his hand on GK’s penis – initially through his clothing but then GK’s pants were removed either by himself or by the accused. GK said he felt excited at the time but a little ashamed afterwards. This event occurred in the afternoon in the accused’s bedroom. They were both on the bed and RP was present playing on the computer. He does not believe this is the first occasion sexual activity occurred but says it is the first he can remember clearly.[31] This is the subject of count 5 on the information.
[31] Transcript p186-187
GK described himself and RP finding some magazines hidden in the accused’s cupboards containing pornography of an adult heterosexual nature. He doesn’t believe that he ever spoke to the accused about the magazines but on occasion the accused was present when he and RP looked at them in the accused’s bedroom. He denied ever taking the magazines to the creek reserve. GK said the accused showed them some pornography on the computer with “boys doing stuff to each other” and he and RP then surfed the net looking at pornography.
GK also gave evidence about uncharged acts. In addition to the occasions on which he says sexual activity took place in the accused’s bedroom, GK said that sexual activity occurred in the tunnel between himself, the accused and RP on over 20 occasions. This took the form of oral sex and masturbation between him, RP and the accused. GK said he would occasionally go to the creek reserve with his brothers. He denied that anything sexual happened when his brothers were present. This is not consistent with RP’s evidence as he suggested that on at least one occasion SK was present and participating in sexual activities. Likewise there is an inconsistency between their evidence about taking pornographic magazines to the reserve.
GK described going into the spa adjacent to RP’s parent’s bedroom with the accused and RP. He said that all three would engage in mutual masturbation in the spa. He thought that this happened on about 4 or 5 times when he was between the ages of 12 and 13.[32]
[32] Transcript p198
GK also said that he went to Maslins Beach with the accused and RP but there was no sexual activity. The accused and RP took their clothes off. He did not; he kept his boxer shorts on. The accused asked GK if he would like to take his shorts off and he declined. The accused was not persistent. When spoken to by the police GK described going to Maslins Beach and told them that RP also declined to remove his clothing. His current memory is different from the time he spoke to the police. I remind myself of the usual directions about prior inconsistent statements.
TC – Complainant Counts 6-11
TC is 25 years of age and was born on 5 June 1987. He said that at the end of the school year in 2000 he went to live with his mother having been interstate for a period of time. The agreed facts indicate he lived with his mother at a Glenelg address from 15 November 2000 to 6 April 2001. Thereafter he lived in accommodation as outlined in the agreed facts.
TC started playing cricket regularly when he went to live with his mother. His grandfather and neighbour were involved in the sport. They took him on Wednesday nights when he visited them in Adelaide. When he moved to Adelaide they wanted him to continue playing. He met the accused through the cricket. He described the accused as being a bit of a go between linking the younger members of the team, their parents and the club. TC said he looked up to the accused.
TC’s mother did not attend at the cricket. He said most of the time he would either be picked up by the accused or he would catch a bus and meet him at his place of employment prior to the game often with GK and RP as well. The accused would then drop him off at home after cricket. He can’t recall how the transport arrangements came about. The games were held between about 7.30 pm and 9.30 – 10.00 pm.
Apart from contact with the accused at cricket TC described the accused taking him to the football, the movies and McDonalds.
TC was aware that the accused was living with RP’s family and he said that he visited him there over half a dozen times in a 12 month period. The majority of those visits the P family was not present. He said that on some occasions perhaps about 50% of visits he stayed overnight at the P house.
TC says he was friendlier towards GK than towards RP. He has not remained in contact with either of them over the years. He said that he saw GK at the P household on more than one occasion.
TC described sexual activity occurred between him and the accused over a period of some 12 months when he was about 13. He said that he can remember three clear occasions when it occurred but he believes that it happened more often than not when he was with the accused. The specific activities are the subject of counts 6 to 11 which occurred on three separate occasions.
The first occasion was probably late 2000 when he was living at his mother’s house. TC said he thought it was a weekend, perhaps a Saturday, and his mother had gone out. There was no one else at the house. He and the accused were in TC’s bedroom. He could not recall what led up to this. TC described the accused using one hand to masturbate his penis for a short while. TC did not ejaculate. This is Count 6. The accused then put his lips around TC’s penis for about 5 minutes or so. This is Count 7. TC did not touch the accused. The accused said he could if he wanted but that he would not make him do anything. When it was over, TC said that the accused made joking comments about him not telling his mother because he, the accused, would go to jail.[33]
[33] Transcript p144-146
TC described the second occasion as occurring at Maslin’s Beach when he said he was led to a cave where the accused performed oral sex on him. He thought this was around the end of 2000. This was not his first visit to Maslin’s Beach with the accused. TC said that there was a prior occasion when he went to Maslin’s Beach with the accused and he was pretty sure that he was with GK.[34] He said that they all took their clothes off and then they went in the water but that nothing sexual happened. GK did not give evidence about this. The second occasion TC went to Maslin’s Beach with the accused they went with the son of a friend of his mother’s, J, who was about three years younger than TC.[35] TC says that on this occasion all three of them removed their clothes. The accused said something about going to see some caves. TC described the caves as secluded and about 50 metres south of the beach. He and the accused went into the caves. He sat on a rock and the accused started performing oral sex upon him by placing his lips around TC’s penis. It didn’t go on too long. TC said they were spooked; possibly J was looking for them or someone else was coming. They went back to the beach.[36] This is count 8 on the information.
[34] Transcript p147
[35] Transcript p149
[36] Transcript p150-151
TC says that he, the accused and J then went into the water. He says that the accused stroked his penis whilst they were in the water and whilst J was nearby. TC described the accused and him having “a bit of a chuckle” over this.[37] This is count 9.
[37] Transcript p152
TC described the third occasion as occurring at the P’s house. He thought it was on a Saturday morning. He thinks he was still living with his mother. He was picked up by the accused and taken into Hindley Street. He said the accused stopped and parked in front of an adult book store, got some things in a brown paper bag and then drove to the P’s home. The P family was not home at the time but GK arrived shortly afterwards. The three of them watched a pornographic video in the lounge room and then they moved to a spa located in the ensuite of RP’s parent’s bedroom. TC described this incident which is the subject of count 10 as follows:
AG, Andrew and I were sitting in the spa, there was a bit of chitchat and eventually Andrew put his head under the water and attempted to perform oral sex on me.
QYou say he ‘attempted’, can you say what he actually did.
AHe put his head underneath the water and put his lips around my penis but it was only for 20 seconds or so due to the complex nature of him needing oxygen I guess.
QWhen you were in the spa together were you wearing clothes.
ANo.
QHow were the three of you positioned in the spa.
AI think, it was like a triangular spa, I was sitting on one side, G was sitting to the left of me and Andrew was sitting to the right.
QWhat did G do when Mr Pearce put his head under the water, did you see.
ANot really. My recollection Andrew and G were doing some stuff in the spa but I just don’t remember what it was completely.
QDo you have any memory of what they were doing.
AThey were touching each other but it’s not – I’m not clear specifically to say – they were touching each other but I don’t have any clear recollection of exactly what was going on.
QYou said that Mr Pearce had his lips around your penis for 20 seconds, is that right.
AYes.
QWhat happened after that.
AHe left and it was just G and I in the spa.
QDo you know how much of your penis was inside of his mouth.
AI’m assuming the whole thing.
QWas your penis erect or not.
AI don’t think so.[38]
[38] Transcript p156, line 16 to p157, line 12
TC then described an incident later during his stay at P’s house in the accused’s bedroom where he was lying naked on the accused bed which forms the basis of count 11 on the information. The accused was kneeling down and stroking TC’s penis quite quickly. TC said he felt uncomfortable and he told him to stop saying that it was hurting. The accused said he did not see why it would. TC says he ejaculated but nothing came out. He said that he later realised that his penis was not hurting it had just become sensitive because he had ejaculated. He had never had that feeling before.[39] It was not clear on his evidence whether GK was there or not.
[39] Transcript p157-158
TC said that the first person he told about these events was a police officer a couple of years ago when he saw some media about the accused being charged with offences. He said he had not complained before due to the fact he was embarrassed and scared.
Other Evidence Relating to TC
Senior Constable Gregory gave evidence about that complaint which was generally consistent with TC’s evidence although I note there was an inconsistency about the involvement of alcohol.[40]
[40] Transcript p215-217
RP’s evidence concerning TC is that he met TC as part of the cricket team. He played for some years. RP believes he met TC when he was 15 or 16. RP said that by that time he was no longer involved in any sexual activity with the accused. RP did not spend any time with TC outside of cricket other than when the accused was dropping TC off or picking him up. RP never saw TC at his home. Neither of RP’s parents gave evidence concerning TC. The accused says he took TC to the P house twice; once when he had to pick RP up for cricket when he had TC in the car and once when he went into the P house with TC for about an hour. On that occasion he introduced him to Mr & Mrs P before taking RP and TC to football.[41]
[41] Transcript p320
GK said that he and TC were not friends in the same way that he was with RP. He said that he saw TC at the P household on two occasions. On one occasion after a cricket match he recalled staying overnight at RP’s house. He and TC slept in RP’s room and the accused slept in his own room. GK recalled TC being there on a second occasion during the day but he did not stay overnight that day. GK did not give any evidence of being involved in or of observing sexual activity between the accused and TC nor did he give evidence about being in the spa with them or observing pornographic videos with them. GK did not say that he had been to Maslin’s Beach with them.
The agreed facts relate to TC’s living arrangements at various times and case notes concerning the time TC spent in assisted accommodation. The case notes suggest various outings and overnight stays with “Andrew” at different locations. The accused is called Andrew but there are no admissions that these notes refer to him or that they are necessarily an accurate reflection of events.
The Accused
The accused denied any sexual activity with RP, GK or TC. His ability to give evidence was plainly hampered by the lack of specificity in the allegations both as to time, place and context. The allegations take place over an extended period of time from 1994 to 2001. Moreover the delay in the making of the allegations has caused him to have understandable difficulty with dates, times and matters such as his working hours, sporting and other commitments at various times. I will refer to the submissions of defence counsel about these and other issues shortly but for present purposes I note and make allowances for the difficulties under which the accused laboured in giving his evidence.
The accused’s evidence concerning his relationship with the P family was generally consistent with their evidence. It is clear that there was a close relationship between Mr and Mrs P and the accused and that he regarded himself as part of the family. He did however seek to minimise his relationship with RP by saying he did not consider himself a father figure rather he considered himself to be a “more or less taxi driver” and that his involvement in RP’s sport was primarily to do with transport.[42] This was somewhat incongruous with his conduct such as taking RP on a holiday to Tasmania. It is also incongruous with other evidence that he gave such as his evidence about RP’s hospitalisation and recuperation from a back injury where the accused related certain comments RP made to him about being “pissed off” with the accused for breaking a promise to move back in with the P family and specifically to his evidence in cross-examination that RP had reminded him of that promise “constantly and very emotionally once or twice.”[43]
[42] Transcript p260-261; 277
[43] Transcript p244-245; 302-303
The accused gave evidence about his working life and in particular his working hours within the constraints I have mentioned. He worked from 10.00 am to 7.00 pm week days and on weekends he worked three different shifts at different points in time that he was now unable to specify with precision. Initially he worked Saturday mornings. He then for a period of time, around about 1995 or 1996, worked Saturday afternoons and before he went back to Saturday mornings. He said that he worked 48 weeks of the year. The only time he had off was two weeks in November and two weeks in either late January or early February.
The accused said that he had no involvement with RP’s Saturday sport commitments because of his work. He agreed however that he had an involvement with football on Sundays. Initially he went to one or two games with either RDP or GP. On one occasion the runner had not turned up so he was asked to be a runner for the team. He gradually increased his involvement from that time on becoming over time a team manager, a runner, Chairman of the Club for a period and Secretary. He said that his duties with the Club kept him very busy. He would get there early and when he became Secretary he would be required to be there from maybe 8.30 in the morning until 5.30 or 6.00 at night. He thought that was in around 2000. He was unable to be precise about dates and times because of the lapse of time.
He described how it came about how he started taking RP to the football when his parents changed their church and commenced going to church on Sundays rather than Saturday evenings. He said that he would take RP to church on Saturday evenings so that RP could play football on Sundays. In chief, he said that RP’s parents would leave at around about 9.30 am and be home between 12.00 and 12.30 at the latest on Sundays.[44] In cross examination he said that Mr & Mrs P got home around 11.45am to 12.15 pm and that did not change over the relevant time period. He accepted that in all the years he lived in the P household there were times when he was alone with RP but he could not recall any extended period of time. In terms of the Sunday football arrangement he says that the time frame he was alone with RP was 15 to 30 minutes.[45] He said he did not recall RP having any sporting commitments on a Sunday during the summer months.
[44] Transcript p239
[45] Transcript p258
He started his involvement with the cricket in the summer of 1999 to 2000 which was played on a week night in the south parklands. RP’s uncle and grand-father had been involved and asked RP and his father to play. The accused went with them on the first night. RP’s father decided he didn’t want to play so he stepped in. He kept playing every season every game for some years. He said that RP played every season that he played. Initially RP would be dropped off by his parents at the accused’s place of work and he would take him to the game and take him home afterwards. As RP got older he would catch a bus into the accused’s place of work and then he would take him onto the cricket and home.
He agreed that GK also played cricket but irregularly. TC turned up in the summer of 2000.
The accused gave evidence about two trips to Tasmania his home State. The first was in 1994 with Mr & Mrs P and RP; the second was just him and RP. The trip with RP was in either November 1998 or 1997. He was unsure if it was a birthday present. He said the 1994 trip was unseasonably hot. He said they would all go back to the snow but he could not afford to take them all. He took RP because he made the promise specifically to him[46] He and RP were away for some five nights and stayed in a motel in Hobart. He said it had been unseasonably cold in Tasmania that November. He denied any sexual misconduct occurring at all. He gave evidence about the presence of Anthony a teenage son of a former work colleague. He arranged for Anthony to look after RP so that he could visit his parents. He understood Anthony to be about 17. R was at the time 11 or 12. He described the circumstances of that visit and saying that he had been held up longer than anticipated and on his return somewhat later than planned he took Anthony home.
[46] Transcript p293
He denied ever showing any of the complainants pornography of any type whether in a magazine or on a computer. He agreed that he had some old pornographic magazines of a heterosexual nature hidden in his room but that he did not ever show any of the boys where that was. He said that the first he knew that RP and GK had looked at the magazines was when he heard their evidence in court.
He recalled GK as a close friend of RP’s but said that he only rarely saw GK with RP. He said he didn’t recall GK going to the P household much on weekends until after he moved out of the P household. The accused said that there was an issue with GK’s father and him and Mr & Mrs P. The accused said that could not remember any occasion when GK and RP would have been at the P house only with him but that he could possibly be wrong about that. Overall the tenor of his evidence was that he barely knew GK and had had limited contact with him.[47]
[47] Transcript p267-269
The accused denied ever taking GK and RP to Maslin’s Beach and denied ever getting into the spa with RP and GK. Likewise he denied ever going into the pipe at the creek reserve with RP or GK.
The accused described his relationship with the P family as continuing after he moved out of their home. He continued to attend family occasions and to catch up with Mr & Mrs P on a regular basis. He denies that they ever raised any complaints by RP with him. He says that the first he knew of the allegations was when he was arrested. He recalled meeting Mr and Mrs P at K-mart sometime in 2009. They were pleasant and apparently pleased to see him. One or other of them suggested going to their house for coffee which they did. Neither he nor Mr P had eaten so after the coffee they returned to K-mart to a café where the accused bought himself and Mr P a meal. Mrs P was there but did not eat. They discussed difficulties that RP and his girlfriend were having in their relationship but they did not put to him an allegation that he had molested RP. After this meeting he heard from them semi-regularly; meeting face to face with them once every 6 to 8 weeks, talking on the phone quite often and texting. He identified some text messages taken from his phone as some of those messages. These were tendered as exhibit D1.
His relationship with RP also continued after he left the P household. They had contact through cricket and football. He would go to the P house regularly and attend various family gatherings. Sometimes RP would visit him at his home. For four or five years after he left he would see the P family at the very least once a week. The relationship with RP was cordial apart from an incident in 2009. The accused says that RP was hospitalised with a back condition. He visited him twice in hospital and once at home. On the home visit he said that RP looked very unwell and heavily medicated. As he was about to leave RP said:
“I’m still pissed off with you for breaking your promise of moving back in” and I said “look R, I was happy living with Pat” and his parents were much better off having high-paying students there instead of myself, and he said words to the effect “I could make life hell for you”. I said “What do you mean?” and he said “Don’t forget I spent a lot of time with you when I was younger”, and I just looked at him. I was so angry and I said “I’m going”. I don’t even remember saying goodbye to R and G”[48]
[48] Transcript p244-245
He said that the things RP said to him made no sense to him at all. It seemed like a veiled threat; a threat that made no sense. He did not ask RP to clarify it. He did not speak to RP’s parents about the fact their son was saying things that made no sense.[49] The next time he saw RP he was back in hospital and much more his old self.
[49] Transcript p302-303
He met TC at the cricket in the summer of 2000-2001. He described TC’s relationship with GK as bad and with RP as even worse. Initially TC was taken to and from the cricket by a lady called Rosa. Subsequently TC asked him to take him home which he did. On those occasions he met TC’s mother. He said he got to know TC’s mother and she told him somewhat of TC’s difficult background. He felt sorry for TC and his mother and did what he could to help. She invited him to come to TC’s 14th birthday. He described what he called the bizarre events that occurred on that date. He was surprised that TC only had one friend at the house when he arrived. TC’s mother said she was popping out for a while shortly after but she did not come back. The accused therefore felt obliged to stay the night to look after the two boys. He said he slept in TC’s bed. TC and his friend slept on his mother’s bed.
The accused said that he had only been to Maslin’s Beach on two occasions. He did not take RP or GK to Maslin’s’ Beach on either of those two occasions. On the first occasion he went as a result of a dare associated with his work and the Nude Olympics. He told TC’s mother about this and she suggested that he take TC to Maslin’s. He said he was uncomfortable and there was no way he would do it unless there was a third person present. It does not appear that consideration was given to TC’s mother attending. Eventually the accused and TC went with a friend of TC’s called JM who was about 8. According to the accused, JM’s parents did not have a problem with the accused taking their son to a nudist beach. He agreed that they all went to the beach and that none of them remained clothed. He said that JM would not go into the water as he was scared of it. That meant that the accused could not go into the water because he had to keep his eye on JM because he was so young. JM’s parents had not informed him of this problem when he discussed taking their son to Maslin’s’ Beach. He denied going into the caves with TC or going into the water with him and denied any form of sexual activity between them.
The accused said that during the time he lived with the P family, Mr and Mrs P were not away from home very often. In about 1998 they spent a week travelling through Victoria and they planned another holiday but they had a serious car accident and didn’t go away at all. He denied that TC ever stayed overnight at their house and said that he had only taken him there on the two occasions referred to above.
Counts involving TC
The case in relation to counts 6 to 11 depends completely upon the evidence of TC. Consistent with my ruling about cross-admissibility, I have excluded from my consideration the evidence of GK and RP as to sexual matters involving them and the accused. There is no independent support for TC’s allegations. I can however convict upon the uncorroborated evidence of a complainant provided that I am satisfied of its truth beyond reasonable doubt.
In general terms I found TC to be a clear and believable witness. There was however a troubling lack of detail and considerable vagueness about times and dates of various incidents including the charged incidents. TC was consistent about the central allegations but certain aspects of his evidence caused me some doubt.
For example, the act of fellatio in the spa bath that is the subject of Count 10, was alleged by TC to have been witnessed by GK. GK did not however corroborate that event. He denied ever having been in the spa bath with the accused and TC. GK further did not give evidence about watching pornography on the TV at the P house with the accused and TC or of observing any sexual interaction between TC and the accused.
TC says that he went to the P house over half a dozen times in a 12 month period and stayed overnight on 50% of those occasions. There is no evidence from the P family, including RP, that TC was ever at their house. RDP said his family hardly ever holidayed away from home. GK on the other hand says that he and TC stayed overnight at the P home on one occasion. RP was not there. He and TC both slept in RP’s bedroom. GK did not describe any sexual activity associated with that occasion. The accused says he took TC to the P’s house on two occasions; once briefly to pick up RP and once for about 1 hour when the whole of the P family was present. He denied that TC ever stayed overnight.
TC says that he went to Maslin’s Beach with the accused on two occasions and that on the first he thought GK was also present. GK denied that this was so.
The accused denied misconduct of any type with TC. There are parts of the accused’s evidence about TC that I find difficult to accept. For example, his evidence that TC’s mother encouraged him to take her son to Maslin’s beach seems unlikely. Coupled with this, his evidence was that he felt some discomfort and required another person to go on the outing. It is surprising that his discomfort was apparently allayed by the presence of an 8 year boy. One would have thought that this would rather exacerbate the discomfort. On his evidence, no consideration was given to TC’s mother accompanying them. Further his evidence that JM’s parents were willing to allow their 8 year old son to go to a nudist beach with a man they did not know well, particularly when their son was afraid of the water, seems implausible.
There are other aspects of the accused’s evidence about TC that I find unsatisfactory. However, even though I have reservations about much of the accused’s evidence that is no basis for my finding him guilty. An innocent man may well lie or attempt to distance himself from allegations to avoid being wrongly convicted. The fact that I have reservations about the evidence of the accused is no basis for a conviction. The onus of proving each element of the charges always remains on the prosecution.
Whilst I consider it is possible, even likely, that the accused did have sexual intercourse and indecently assault TC as alleged, the evidence on the prosecution case is unsatisfactory in a number of respects. The accused ought not to be convicted in circumstances where I remain uncertain about critical aspects of TC’s evidence. Therefore I do not consider that the prosecution has proven any of the charges involving TC beyond reasonable doubt. In those circumstances, notwithstanding my reservations about the accused’s evidence I acquit him and deliver a verdict of not guilty in relation to counts 7, 8, 9, 10 and 11.
Counts involving RP and GK
The prosecution case in respect of Counts 1, 2 & 3 depends upon the evidence of RP corroborated by that of GK and, on counts 4 and 5, on the evidence of GK corroborated by RP.
I have rejected the evidence of RDP, GP and SLO concerning admissions allegedly made by the accused relating to offending against RP. Accordingly, there is little independent support for the allegations of RP and GK apart from that provided by the other. I must be satisfied of the truth and accuracy of their evidence.
Both RP and GK impressed as candid and believable witnesses. Both gave their evidence in an articulate and straight forward manner. Both appeared to be doing their best to assist the court. Both appeared to be frank. Their evidence was plausible. Counsel for the accused made submissions concerning the fallibility of judicial evaluation of credibility from appearance and demeanour and referred to State Rail Authority of NSW v Earthline Constructions[50]. I accept these submissions. They are plainly correct and I bear these submissions in mind as I carefully consider the evidence of RP and GK in the context of the whole of the evidence.
[50] (1999) 160 ALR 588 esp. Kirby J at para 88-91
The primary difficulty with the evidence of both RP and GK was that their evidence concerning many matters, including the specific offences alleged, was vague as to dates, times and context. Both remained unshaken as to the central allegations but could not provide additional detail. For example neither was able to provide times for the Sunday football arrangement. RP agreed that on occasion the accused would have other commitments at the club and that he would have to wait for these to be finished but he could not be sure how often.[51] This lack of precision of course makes the defence case particularly challenging and is a significant matter going to the credibility of both RP and GK. On the other hand the passage of time, the persistent and regular sexual activity alleged over a period of years, the normality of the activity for both RP and GK and their relative youth at the time must also be borne in mind in assessing their evidence.
[51] Transcript p57-58
Particular criticism was levelled at the evidence of both RP and GK as to the frequency of the offending alleged. RP alleged sexual activity against him once a fortnight for at least three to four years maybe up to five. This suggests offending on hundreds of occasions. When this was put to RP his response was:
The amount of times happened enough for me not to recall that many individual occurrences.[52]
[52] Transcript p71
RP was also questioned as to whether he observed sexual activity involving GK on hundreds of occasions and his response was:
I can’t speak on his behalf, but he did attend a lot of those occasions.[53]
[53] Transcript p71-72
GK’s evidence on this topic was that he was involved in sexual activity with the accused 2 to 3 times per month over a period of 2 to 3 years. He said that RP was mostly present on these occasions but not always.
This volume of alleged offending is substantial. The defence says that it is improbable particularly in view of the accused’s long working hours. I do not however consider that this is necessarily the case given the nature of the offending and the living arrangements at the P household. It is however surprising, in view of the frequency and apparent brazenness of the accused’s offending on the prosecution case that no suspicions were held by Mr & Mrs P or for that matter SLO. Mr and Mrs P did not say that they caught anyone in any suspicious circumstances for example by an unexpected return home on a Sunday. There was no mention of finding of pornography of any type. RP was never caught carrying pornographic magazines to the creek. There was no mention of use of the spa bath whilst Mr & Mrs P were away from home and I note in that context the evidence of GK that he believed there was a leak problem with the spa. As against this I note the trusted position occupied by the accused within the P family, the fact that the offending is alleged to have occurred mostly whilst the P family were out at church or at the nearby creek reserve. I also note the lack of complaint by either RP or GK. It appears clear from the evidence that, at the time, they both liked and respected the accused. There was no suggestion of force or coercion on the part of the accused. Both RP and GK said that they enjoyed the sexual activity and were encouraged by the accused to view it as normal.
The defence have invited me to consider the forensic disadvantage occasioned by the delay in these matters coming to light. Specifically the accused has had difficulties concerning significant timing matters such as his working hours, his precise involvement in the football and cricket clubs at given times, the level and periods of involvement of GK in the football and cricket clubs, the P family routine on Sundays.
It is undoubtedly the case that such matters bear adversely upon the accused’s ability to test the prosecution case as to the opportunity to commit these offences and the frequency of offending alleged. That much is evident from his evidence. It did not however preclude it and it did not affect his ability to test all aspects of the prosecution case.
The accused’s long working hours for example, were confirmed by RDP and to a lesser extent RP and GK who both agreed he was not around much during the week. The time frames associated with the football and church arrangements were not clear. The evidence of all concerned was unhelpful. I am however satisfied from the whole evidence, including that of the accused, that he regularly took RP to and from the football on Sundays, and that he often transported GK as well and that he did have time alone with both boys at the P house on those occasions. I am further satisfied that the accused did have contact with RP and, to a lesser extent GK, at other times during the week notwithstanding his working hours.
The accused denies that he ever viewed child pornography on his computer or encouraged RP and/or GK to do so. The computer is no longer available for analysis. This is another significant disadvantage that I have taken into account when considering the evidence of RP and GK upon that topic.
No other areas of forensic disadvantage were highlighted but I have borne the delay in mind in assessing the evidence generally.
There is no complaint evidence relating to GK. There is evidence of a complaint made by RP to KD. That complaint was made some 8 years after the last of the alleged offending.
Section 34M of the Evidence Act abolishes the common law relating to recent complaint in sexual cases and relevantly provides as follows:
(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.
It was put to me that the directions required in s34M(4) only applied to the jury and that a trial by judge alone is different. I was not referred to any authority supporting that proposition and I am not attracted to it. The evidence having been admitted under s34M ought to be considered in accordance with that section whether by a jury or a judge sitting alone.
Whilst the delay of itself is not probative it is said that there is significance to the timing of the complaint. The complaint was precipitated by the discovery by KD of RP’s affair. On all accounts this rendered their relationship tenuous. KD was pregnant with their first child. She was understandably upset by her discovery of the affair. RP was equally concerned that his conduct had jeopardised his relationship. This was his first serious relationship.
KD was a compelling witness who appeared concerned to give an accurate account of events. She readily conceded that she was very upset about the affair and was questioning everything about their relationship. She said that asked for everything to be put on the table and wanted to discuss any factors they did not know about each other. It was in this context that RP made his complaint. I did not detect in either RP or KD’s evidence that the complaint of sexual misconduct against the accused was part of an effort on RP’s part to deflect responsibility for the affair. Rather it appears to have arisen in the context of KD’s desire to be completely frank with each other in the discussion about their relationship.
The complaint made by RP was consistent with his evidence in court. Likewise it seems an unnecessary embellishment to his accusation to introduce GK as another victim if the complaint was concocted in an attempt to save his relationship. He could hardly have been confident that GK, notwithstanding their friendship, would have supported him.
The timing of the complaint appears to me to be consistent with the P family circumstances, the relationship between RP’s parents and the accused, RP’s age, the normalisation of the sexual behaviour with the accused and his involvement in that behaviour.
It was put to me that there was evidence upon which I could infer that there was a motive to lie in respect of both RP and GK. I must consider this as relevant to their credibility. I note the usual directions given to a jury about motives to lie. In particular that the accused does not have to provide a motive to lie and that the absence of a motive to lie does not strengthen the prosecution case in any way.
The accused has suggested two possible motives to lie attributable to RP. The first was that it arose out of a desire to save his relationship with KD. I reject that for the reasons outlined above. The second was that RP was upset by the accused’s refusal to return to live in the P’s house. This is the evidence that the accused gave concerning what he described as the veiled threats made by RP at the time of his illness. RP denied making these. The evidence was on its face implausible. The accused said RP’s threats made no sense to him. He noted that RP was very unwell and, he thought, heavily medicated. He did not however speak to RPs parents about this rather he left without speaking to them. He then says that on the next occasion he saw RP he had returned to his old self. It does not appear that he raised the topic with RP again. The accused says that this incident occurred in 2009. This seems unlikely given the evidence of the timing of the complaint to KD and RP’s living arrangements in 2009.
The motive to lie attributed to GK was a desire to assist his friend RP in relation to his difficulties with KD. Given I do not accept that RP lied for that purpose I also reject this as a motive for GK to lie.
Related to the motive to lie issue is that of collusion between GK and RP. As I have said it is not for the accused to supply a motive to lie for either accused. It is common experience that people tell lies for many reasons; likewise with collusion to tell lies. Moreover, there are considerable and obvious difficulties for an accused to show collusion and there are many ways in which collusion can occur. Having said this I detected no suggestion of collusion between GK and RP. Further, there were differences in their evidence that argued against collusion. For example GK saying he remained clothed at Maslin’s’ Beach contrasted with the evidence of RP; GK denying that they took magazines to the creek and saying that they found the magazines in the accused’s room as opposed to that of RP saying the accused showed them to them and that they always took them to the creek reserve.
GK admitted a prior inconsistent statement to the police concerning the issue of clothing at Maslin’s beach. I have carefully considered that evidence in line with the usual direction given to a jury. It does not cause me to doubt his evidence. I was more troubled by RP’s assertion that SK, GK’s brother, was involved in sexual activity at the creek and GK’s denial that this was the case. Having considered the matter it does not cause me to have a reasonable doubt as to the truthfulness or reliability of the evidence of either GK or RP as to the charges.
I have some concerns about the evidence of the accused as it related to RP and GK. Apart from the visit with TC the accused said that he had only been to Maslin’s beach on one previous occasion for work purposes. He denied ever going there with RP and GP. Both RP and GK gave generally consistent and believable evidence about attending at Maslin’s beach with the accused.
The accused’s evidence of the trip to Tasmania was unusual. The accused’s motivation for the trip was not clear. He appeared unwilling to accept that it was a birthday present for RP. The explanation about wanting to take the whole family but taking RP because of a promise did not seem plausible. RP made allegations concerning sexual misconduct on that trip involving a young man called A. The accused denied this but further offered an explanation for A and the circumstances surrounding that day that was to say the least odd.
The accused described his relationship with RP as that of a “glorified taxi driver”. In my view his evidence on that topic was an attempt to distance himself from the closeness of the bond between them. All other witnesses describe the relationship as a close one. His own evidence, including that of the trip to Tasmania, facilitating RP’s attendance at football on Sundays by taking him to church on Saturday evenings, discloses that this was the case. On a similar note the accused was at great pains to suggest his relationship with GK was fleeting and that he barely saw him. This does not ring true nor did it sit well with the other evidence concerning the closeness of RP and GK and the frequency with which GK visited the P’s house even taking the accused’s long working hours into account.
The accused’s evidence about RP’s comments at the time of his back injury seemed to be an attempt to suggest an alternative reason for RP to concoct a story of sexual misconduct. As I have indicated above I consider this evidence to be implausible.
Notwithstanding my reservations about these and other aspects of the accused’s evidence; that does not provide a basis for my finding him guilty of the counts relating to RP and GK. The onus of proving each element of the charges always remains on the prosecution.
I have taken into account all of the submissions put to me in relation to the evidence of both RP and GK individually and as a whole. My consideration of those submissions and the evidence as a whole has not caused me to doubt my initial impression of RP and GK as credible and reliable witnesses. Both appeared to be trying to be fair in relation to the accused. They both made appropriate concessions and neither suggested any coercion or duress on his part. The evidence they both gave about their excitement about and enjoyment of the sexual activities including the sexual activities they say occurred between them rings true. Neither was shaken in their evidence under cross-examination. I am satisfied of the truth and reliability of their evidence.
I am therefore satisfied that the prosecution has discharged the onus of proving each element of the offence of persistent sexual intercourse with a child as alleged in count 1 and count 4. I find the accused guilty of each of those counts. In view of that I need not return verdicts in relation to the alternative counts 2, 3 and 5.
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