R v Pearce - [2008] SADC 177

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PEARCE
Criminal Trial by Judge Alone
[2008] SADC 177
Reasons for the Verdicts of His Honour Judge Rice
23 December 2008
CRIMINAL LAW
Trial by Judge without jury - accused charged with 27 counts alleging offending of a sexual nature against nine young male complainants - ages of complainants varied between about 8 and 15 years - in the main the alleged offending occurred in the early 1980's and early 1990's when the accused was a member of the Naval Cadets, Air Youth and the Atari Computer Club - no application for severance - prosecution submitted that proper case for cross-admissibility - cross-admissibility accepted on the basis of underlying unity or pattern - counts considered separately.
Verdicts of "guilty" entered on Counts 1, 2, 3, 7-9, 10, 11 and 12, 18-23, 24-26 and 27.
Verdicts of "not guilty" entered on Counts 5 and 15 (at "no case" stage), 4, 6, 13, 14, 16 and 17.
Criminal Law Consolidation Act 1935 ss 49 and 56, referred to.
R v Longman (1989) 168 CLR 79; R v Liddy (2002) 81 SASR 22, paras 62-68; Hoch v The Queen (1988) 165 CLR 292 at 294-295, considered.

R v PEARCE
[2008] SADC 177
Introduction

The accused in this case has elected for a trial without a jury. He is charged with 27 counts alleging offences of a sexual nature. Those alleged offences are said to have been committed in two groups, the first in the early 1980’s and the second in the early 1990’s.
The allegations involve nine young male complainants and the alleged offences cover indecent assault, unlawful sexual intercourse, attempted unlawful sexual intercourse and attempted unlawful sexual intercourse with a person under 12. All counts are on the one Information and the accused has pleaded not guilty to all counts. There was no application for severance.
The prosecution submits that all counts are properly joined and that some of the evidence in relation to one count is admissible in proof of another. That submission is discussed below. However, in my view, they were properly joined even in the absence of cross-admissibility. Further, on the evidence I heard, there was no concoction as between any of the complainants, even though some knew each other at the time of the commission of the alleged offences.
As will emerge in the discussion below, the complainants come mainly from three groups, being young boys who were involved with the Naval Cadets, the Air Youth Squadron of South Australia or a group called the Atari Computer Club.
Prosecution case – an overview of the allegations
Count 1 (indecent assault) involves R, M, then aged about 14-16 years, who was undertaking work experience with the accused at the Adelaide Airport. The prosecution case is that there was an immediate complaint to his mother and a termination of the placement.
Counts 2-6 involve S, A, between about the ages of 14-16 years, initially while he was a member of the Naval Cadets and for a while after he left.
Counts 7-9 involve C, B when he was between about the ages of 12-14 years while he was also a member of the Naval Cadets at Port Adelaide. Counts 7 and 8 are said to relate to one occasion when it is alleged that he stayed at the accused’s house and Count 9 to a separate occasion at the accused’s house.
Count 10 involves W, D, who also was a member of the Naval Cadets. He may have been a member of the Cadets at the same time, or about the same time, as S, A and C, B. There is no evidence that they have had anything to do with one another in recent years and may not even back in the early 1980’s. The allegation arises from an occasion when it is said he slept over at the accused’s house.
Counts 11 and 12 involve B, E, who was a member of the Atari Computer Club. The allegation is that B, E, who was then aged about 13 years, stayed overnight at the accused’s home on one occasion. While playing the computer in the spare room, it is alleged that the accused touched him indecently over his clothing and later lay on top of him in an indecent manner.
Counts 13-17 concern M, M, as he was then known, now known as B, M, being the younger brother of B, E. All counts relate to the same occasion when B, M (I propose to use his present name) was taken by the accused to McDonald’s and then back to the accused’s house for a sleepover. B, M was also interested in the Atari Computer Club. He was then aged about 7-8 years. Various types of indecent acts were committed or attempted that night.
Counts 18-23 relate to C, D, as he was then known but now goes by the name S, D (which I propose to use), who was a member of Air Youth of South Australia when he was aged 12-13 years. These counts, and the remaining counts on the Information, concern a period of about 1991-1992 during which the accused was an officer of Air Youth. There were three separate occasions when S, D was staying over at the accused’s house and it is alleged various offences of indecency occurred. There was also a final occasion of alleged indecent touching at the Air Youth offices at the Parafield Airport.
Counts 24-27 involve R, A (three counts) and R, P (one count), who were both members of the Air Youth Squadron at Victor Harbor because they lived in that area. Both went on an Air Youth camp in January, 1992 at Stirling when they were aged about 12 years. Both were picked up by the accused and taken together to the camp. Two indecent touchings of R, A and one of R, P by the accused are alleged to have taken place at the camp.
General directions
It should not be necessary to state these things, but I do so out of an abundance of caution.
Burden of proof
The burden of proof rests on the prosecution from beginning to end. The accused does not have to prove or show anything. The accused was not obliged to give evidence but he chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt.
Degree of proof
The prosecution must prove guilt beyond reasonable doubt before a conviction on any count could be entered. That degree of proof extends to each of the individual elements of each charge. Nothing short of proof beyond reasonable doubt will do. If, upon a consideration of an individual count, I am unable to say where the truth lies (to the extent that that is the purpose of the trial on each count), then the verdict must be one of “not guilty”. Where I indicate that I am satisfied about a particular fact or event, I mean satisfied beyond reasonable doubt.
Presumption of innocence
The accused has come into this Court with the presumption of innocence operating in his favour on each count. The law regards him as innocent on any and all counts unless and until his guilt has been proved beyond reasonable doubt.
Specific directions
Recent amendments to the Evidence Act contained within the Statutes Amendment (Evidence and Procedure) Act, being Act No. 7 of 2008, do not apply to this trial given the wording of the transitional provision, being s 22 of the amending Act. These proceedings were commenced before the commencement of Part 4 of the amending Act. In the result, the common law directions are applicable.
Lack of corroboration
I note that there is no corroboration, that is, independent support, for the evidence of any complainant or count. In that situation, the question is whether the evidence of each complainant on individual counts is sufficient to prove that count having regard to all the evidence (including the exhibits) in the case, including that of the accused.
Longman warning (R v Longman (1989) 168 CLR 79)
As touched upon earlier, these charges arise from events in the early 1980’s and early 1990’s. Apart from the matter of R, M (count 1), there was no relevant complaint. I appreciate that the failure to make a complaint does not necessarily mean the allegation is false. There may be reasons for the failure to complain, but no reasons were forthcoming in this case.
The delay has meant that each complainant, but to varying degrees, has been unable to remember some details. That has disadvantaged the accused because there is an inability to fully test the complainant’s account. Further, the lack of a prompt complaint, or no complaint, has occasioned a forensic disadvantage to the accused on some counts. The accused may, again depending upon the issues on individual counts, have been better able to remember his movements, or have someone vouch for his movements or provide an alibi, or find forensic evidence, which may have been available or not found (which can be equally important). I have taken those and other disadvantages into account. I have also assumed there were other disadvantages that would have emerged with the ability to examine in greater detail.
Yet further, the failure to make a complaint in itself may cast doubt upon the reliability of the evidence given by any complainant.
I appreciate the need to scrutinise the evidence of each complainant with great care. I warn myself that it would be dangerous to act upon the evidence of any complainant standing alone unless, bearing in mind this warning, I am completely satisfied as to its truth and accuracy as to the events surrounding each charge.
Uncharged acts
In addition to the charged acts, the prosecution has adduced evidence from some complainants of other conduct not the subject of any charge.
It should be noted that not all of this additional conduct could, in a realistic sense, be the subject of a charge (other than perhaps a technical assault). For example, a complainant may say that the accused put his hand on the complainant’s leg, arm or shoulder during conversation. The prosecution led this evidence, not only to show a pattern of behaviour by the accused towards the complainants, but, also allied to that, that it was the accused “testing” for the reaction of the particular complainant.
Quite apart from that type of evidence, there was also evidence from some complainants of other conduct that could have been the subject of a separate charge but was not.
The question arises in either category as to the degree of proof required before those other acts can be acted upon. For my part, I have adopted the requirement that those acts be proved beyond reasonable doubt before I could act upon them.
Potential use of uncharged acts
The uncharged non-sexual acts (touchings but not necessarily in circumstances of indecency) have a potential use in the way submitted by the prosecution. They could be used to show that the accused was testing some of the complainants to see whether they reacted adversely or negatively to being touched. Such touching could legitimately be used as part of the progression of conduct, moving from seemingly innocent touching to more intimate and sexual touching. I note that the accused did not really dispute much of the touching of this type, but said that it was quite innocent and should be viewed as part of his demonstrable touchy-feely persona.
The uncharged acts of a sexual nature have a limited use. Again, they have a potential use as being in the nature of progressive behaviour towards more intimate and ongoing sexual behaviour and to explain why there was no complaint when more serious sexual conduct occurred or continued.
Additional warnings
As has been mentioned, the accused is charged with a large number of offences against nine young and adolescent male complainants. I must not let the multiplicity of charges or complainants incline me to the view the accused is, or might be, guilty of some or all matters. That would be quite an erroneous approach.
It must also be said that the verdicts must relate only to the events charged. It would also be erroneous to be satisfied about an uncharged sexual act and transpose that finding to a charged incident about which the requisite proof was lacking.
I also note that the accused admits to a life-long homosexual orientation (TP601, 693, 709). It would be quite wrong to reason that, because he has always had that orientation, he is the sort of person who would, or may, offend against adolescent youths as alleged or at all, or that he is likely to have so offended or acted.
Cross-admissibility
As mentioned, the prosecution case is that evidence adduced in proof of one count is admissible in proof of other counts. As other parts of these reasons make plain, the view to which I have come is that there was no concoction between any of the complaints. Most of the complainants did not know each other, except for B, M and B, E and R, A and R, P and, even as between them or any of them, I find there was no concoction.
Before taking the submission relating to cross-admissibility further, it is useful to reflect upon the issues raised in the counts.
I commence by observing that the accused has denied all counts. However, his evidence in relation to each count is not exactly the same. In some instances, it is that neither the alleged events nor anything like them occurred. In others, the general events surrounding the alleged offending occurred (for example, a complainant was at his house or unit or on the camp) but that there was no offending.
Further, with the exception of S, A, the accused denied any sexual relationship with any of the complainants. As for S, A, the accused admits to a sexual relationship with him, but only after S, A had reached 17 years or 16 years but the accused had the requisite belief for the defence under s 49(4).
Overall though, the accused has denied the events giving rise to the charges. In addition to that, he has denied doing certain things (for example, supplying alcohol and/or cigarettes to complainants) which is across the evidence of many complainants. He has admitted other conduct (for example, driving a car that would be appealing to young boys, buying them treats or picking up and/or driving complainants home from group meetings), but denies they have any sinister meaning.
The prosecution case is that the accused adopted a pattern of behaviour whereby he identified these complainants as being young boys to whom he proposed to make advances of a sexual nature.
There were certain features to this pattern of behaviour:
1.Generally speaking, although this was not always the case, the accused identified a complainant from a household where the father was absent or there was social disadvantage.
2.The accused himself occupied a position of trust and authority within the groups of which he was part (Naval Cadets, the Atari Computer Club and Air Youth). As such, he would enjoy the confidence and trust of the young boys and parent(s) alike.
3.The accused further identified complainants who needed or were prepared to accept a ride to or from group meetings (Naval Cadets and Air Youth) or to a camp out of Adelaide or to and from his home (B brothers).
4.The accused drove a number of cars that would have been very appealing to impressionable young boys. Such cars were bright, attractive, powerful, impressive and well-appointed. Initially, there was a Holden Monaro GTS 253 (V8, two-door, four‑speed floor shift with a red back spider emblem on top of the gear lever), then a silver Holden VB 5000 (also a V8) and then a Holden VN Calais. (As is dealt with below, the Monaro GTS 253 was left unlocked at the Naval Cadets site with the keys in the ignition so the boys could play in it and listen to music.) The accused would pick up complainants and drive them around in such vehicles, including driving them to his house.
5.The complainants were generally of a similar age.
6.Almost all the complainants were initially touched in a non-sexual manner to gauge their reactions. On the prosecution case, this was a precursor to sexual behaviour towards complainants.
7.Many of the complainants were offered treats, for example, alcohol and/or cigarettes, going to the movies or drive-in, take-away food. These benefits made the accused, and being in his company, more attractive and desirable.
8.All complainants were, at some stage, given or offered sleepovers at the accused’s home, or were sleeping close to the accused at a camp. (Note also the evidence of R, M at TP350.)
9.The complainants gave evidence of varying degrees of sexual offending by the accused, ranging from indecent touching to anal sexual intercourse.
In my view, the evidence is cross-admissible having regard to my finding that there was in fact no concoction between any complainant many of whom came from quite disparate groups and did not know each other.
The authorities have articulated a number of bases upon which cross‑admissibility is justified. For present purposes I propose to refer only to a few.
In my view, the conduct of the accused based upon my factual findings below, disclose what the authorities refer to as a system or pattern or underlying unity in the sense that the alleged offences were committed in a specific context: R v Liddy (2002) 81 SASR 22, paras 62-68.
Cross-admissibility is not limited to striking similarity. This is not a striking similarity case. Further, it is not necessary that the various features to which I have referred are across all counts.
The test for the admissibility of this evidence is the strength of its probative force. I have proceeded upon this basis: the evidence “...possessed a particular probative value or cogency by reason that it revealed a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged” Hoch v The Queen (1988) 165 CLR 292 at 294-295, relied upon in Liddy’s case (at para 50).
I also accept the submission of the prosecution that the evidence is capable of rebutting or negativing innocent association. Part of the accused’s case is that his involvement in sleepovers and the camp was that it was ancillary to legitimate activities of the groups. The use of this evidence rebuts that innocent connection because of the objective improbability of complainants who do not know each other giving a similar account.
Evidence of the complainants generally
I propose to examine the evidence of each complainant and make findings.
The general observation I make about each of the complainants is that each was doing his best to give a truthful and accurate account. With one exception, B, M, I certainly had no reason to doubt the veracity of any one of them. It is a separate question whether each was reliably accurate as to when events were said to have occurred and what occurred on those occasions. The counts require separate consideration in that regard.
Otherwise, I believe and accept each of the complainants. As noted below, I reject the evidence of the accused as to the central features of each count. Belief and acceptance of each complainant is not the same as proof beyond reasonable doubt. I also make an express finding that there was no concoction between any complainants within the groups I have described or between any group.
Generally speaking, the complainants came from comparable backgrounds. There were certainly differences in memory, emotion, confidence, the ability to formulate and articulate answers, intellectual functioning and life experience since these events.
R, M (Count 1)
R, M, who was born on 27 December, 1965, was attending Seacombe High School in Year 10. He lived with his mother in a house in the suburb of Sturt (not far from the Marion Shopping Centre) and sometimes at Seaview Downs, mainly on the weekends, with his mother and her new partner.

In 1980, in about the middle of Year 10, he undertook work experience at the Adelaide Airport. It was organised through his school and was meant to be for a period of two weeks. He would have been aged about 14 years at the time. On the Monday morning, he attended at the Adelaide Airport and was met by the accused. He said the accused was a flight service manager and it was his job to supervise Mr R’s time there. Not long after they met, whilst walking from one building to another, the accused put his arm on or around Mr R’s shoulder. Mr R felt a bit uncomfortable and thought that it was a bit unusual (TP347).
Another aspect of the first day that Mr R remembers relates to a school friend of his named T who also did work experience with the accused. The accused said Mr R looked like T and “I do like you”, referring to Mr R (TP348).
Also during conversation, Mr R said he was living at Sturt and the accused said he lived at Noarlunga. The accused offered to pick up Mr R at Sturt and drop him at home each day. Mr R was picked up the next morning from the Sturt house by the accused driving the red Monaro with a red-back spider gearshift. Mr R described its good condition and remarked that it looked like it had been restored (TP349). Mr R said that nothing of any note happened that day at the Airport and that the accused drove him home to Sturt that afternoon. On the journey home, the accused said he liked Mr R a lot, that he trained Navy cadets in Port Adelaide and invited Mr R to his house on weekends. The accused said Mr R should visit his house one weekend and he had all the cadets there and they could drink alcohol and have a good time (TP350). This was a very telling piece of evidence. It was very prophetic because it was exactly what happened at a later time, being evidence which I accept (from Mr R and others) and to which I will return.
As they drove along, Mr R said that the accused rubbed his (Mr R’s) thigh and tapped him on the thigh in conversation. Obviously the accused was driving and Mr R was in the front passenger seat. On this occasion, Mr R said that, when they reached the house at Sturt, he invited the accused in for a coffee. Mr R explained that he had had an accident on his roller skates and skun both knees. He said the trousers he was wearing to work experience were sticking to his legs so when he arrived home he changed into shorts. He made the coffee and sat down and the accused sat next to him. There was conversation about what happened to Mr R’s knees and the accused put his hand on Mr R’s leg and rubbed up and down on the thigh for a few seconds. Mr R felt uncomfortable about that and said his mother would be home shortly. The accused promptly left (TP352-353).
The accused picked up Mr R the following morning. They had little to do with each other on that day but the accused was due to take Mr R home again. On the second time the accused took Mr R home, he took him to the new place at Seaview Downs. The accused asked if he could come inside and they went inside. Mr R put the kettle on and the accused asked to see his bedroom. This they did where the accused looked at a lot of model aeroplanes and cars that were displayed. During this, the accused put his arm around Mr R on the shoulder.
Once the coffee was made, the accused again sat close to Mr R on a sofa. Mr R found that distressing and moved to a bar stool. After a few minutes the accused went over to where Mr R was sitting, leaning over him and straddling Mr R’s knees and rubbing his (the accused’s) testicles on his (Mr R’s) knee (Count 1). The accused asked if Mr R knew what that meant and Mr R said “No”. Mr R suggested the accused should leave. Before he did so, he gave Mr R a bear hug, from the front, that lasted for about 15 seconds, causing Mr R to feel very scared. He then left.
Mr R made sure he was gone and immediately rang his mother. He asked her to return home immediately. Mrs R worked some distance away and arrived home within an hour. Mr R said he complained to his mother about how the accused touched him, rubbed his testicles on Mr R and hugged him. Mr R said she rang the school counsellor and they went to the school that afternoon. According to his evidence, he told the counsellor what had happened yet the counsellor suggested he go to work experience the next day but have nothing to do with the accused (TP354-357).
More needs to be said about the complaint to Mrs R. Mrs R gave evidence that her son, M, in Year 10 but later in the year, undertook work experience at the Adelaide Airport. Mrs R said she had her own house at that time at Sturt but that her partner had a place at Seaview Downs where, on occasions, she and M would stay, mainly on weekends (TP369-370). Mrs R was aware that one of M’s friends, T, had previously done work experience at the Adelaide Airport.
About four days after M commenced work experience, Mrs R received a telephone call from him whilst she was at work in the city. She said he was crying and was very, very upset. He asked if she could return home immediately. She asked what was wrong and he said “....he was very, very scared, that this Norm had brought him home and he kept putting his arm around him and touching him and asked to see his bedroom” (TP372). Mrs R said she arrived home in 20-25 minutes. Although Mrs R first thought it was a Friday (TP373), she later seemed uncertain as to whether it was a Thursday or Friday (TP376-377) that these events occurred.
When she arrived home, Mrs R again asked M what had happened and she gave this evidence (TP373):
A.He said he kept putting his arms around him again, he said, and he touched him, and I felt he said to me at the time that he got M’s hands and put it on Norm’s testicles and said ‘You know what this means’.
Q.So that’s what M said to you, as best you recall.
A.Yes, rubbed against him or – yes, something like that, yes.
When speaking, M was scared and quite upset. She remembers him going back to work experience the next day or the Monday.
Mrs R said she and her partner went to see Mr Waite, a person whom she believed was the school counsellor. She said that M did not attend at the school. She said Mr Waite suggested that M go for one more day (TP375). Mrs R also said that she saw the counsellor in the daytime, but not the day she received the telephone call from M (TP376). She thinks she went the next day to the school (TP377, 380).
As mentioned, Mrs R recalls M attending work experience for one more day. The content of what was said to Mr Waite by Mrs R did not form any part of the evidence from Mrs R.
Mr Waite also gave evidence. At the relevant time, he was the work experience co-ordinator. He confirmed that R, M went on work experience in Year 10, being the year most students turn 15 years. Work experience was then a two-week placement in about July/August (TP461).
Mr Waite said he was called to a meeting towards the end of the first week of the placement. Present were the principal, the school counsellor, Mr Waite, Mrs R and M. The meeting had already started when Mr Waite arrived. He made no notes and was first asked to recall the meeting in about 2006. Mr Waite said Mrs R explained what was said to have happened (TP463):
A.Well, his mother said that there was an incident during one of the evenings at his work experience placement. His supervisor had put his hand on his leg as he was going up the stairs to the air traffic control area and he had also, during the course of the evening, he was – hands were put across his shoulder while he was looking at various radar and other instruments in the air traffic control area.
Mr Waite said that if he had been told that a supervisor on a work experience programme had straddled the work experience child’s leg and rubbed their groin on the child’s leg, then jumped off the leg and grabbed their testicles in front of the child and said words to the effect “Do you know what this means?”, there was absolutely no way the student would be sent back to that placement (TP463‑4).
There is a real question on the evidence about whether M was present at the meeting. The account given by M to his mother (from TP373) was certainly not conveyed at the school meeting. According to Mr Waite, a much milder form of the problem was the subject of complaint. The fact that he returned for one more day after the conduct described by M suggests that full disclosure was not made to the school, yet M seems to think it was (TP368). The details of the disclosure to the school I find to be confusing. The most likely scenario, picking up on part of Mrs R’s evidence, is that M was taken to work experience the following day by her partner and the meeting at the school was later that same day. That day was most likely the Friday. The placement was terminated later on that day.
As is well-known, the content of a complaint cannot be used to prove the events the subject matter of the complaint. A complaint cannot be used as corroboration. A complaint may only be used to show a consistency of conduct. I find that M complained to his mother in accord with Mrs R’s evidence above even though the detail is slightly different from what M himself said.
The accused gave evidence about his involvement in the work experience of R, M. The accused acknowledged he had oversight of the work experience programme at the Adelaide Airport. That involved managing the comings and goings of students to ensure they had sufficient to do and were actually experiencing work conditions (TP487).
The accused agreed he dropped Mr R at home on at least one occasion. He said he had not been inside a house at Sturt and there was no occasion for any form of touching Mr R at such an address. The occasion he did remember was when he dropped off Mr R at a house at Seaview Downs. He agrees he was invited in for a coffee. He said while he was talking with Mr R he said that he had a lot of model aeroplanes and went to the doorway of his bedroom and admired them. The accused then admired the view from a picture window. They each had coffee and talked and Mr R said he was not really happy that his parents were separated and that his mother had taken up with someone else. The accused did admit to placing his hand on Mr R’s knee or shoulder when conveying the notion that the home situation will improve in due course (TP490). Apart from that, there was no acknowledgment of a touching.
As mentioned, Mr R said he went again to the Adelaide Airport the next day, but this time with his mother’s partner. Despite what had happened the previous day, Mr R said he accompanied the accused in a taxi to the Parafield Airport to see the new control tower that had been fitted. Mr R sat in the front seat with the accused sitting behind him. Mr R said he was being tickled on his left side by the accused as they drove along, plus having his seat belt pulled (TP357-8). Something similar happened on the return journey.
There is little that needs to be said about what happened at Parafield Airport. The accused seemed to shadow Mr R for some of the time and Mr R was making efforts to stay away. The accused eventually asked Mr R if he was scared of him and Mr R responded “No” (TP360-1). When they returned to the Adelaide Airport, Mr R attended at the manager’s office and was told that the work experience was over. He had nothing further to do with the accused.
Finally, there is one further topic relating to the accused and his conversations with Mr R. The accused agrees he told Mr R that he (the accused) trained the Navy Cadets at Port Adelaide. However, he denied telling him that he could visit the accused’s house one weekend and that all the cadets would be there, they could all drink alcohol and have a good time (TP572-3). He did agree he had the band to the Hillcrest house on a number of occasions, but not to the Port Noarlunga house (TP573).
Evidence of the accused
I have dealt with the main features of the accused’s evidence relative to the first count. In due course, I will refer to his evidence on the remaining counts. It is appropriate at this juncture that I make some general observations about his evidence.
Put simply, I did not believe the evidence of the accused in relation to the central allegations in each of the counts remaining (that is, already having entered “not guilty” verdicts on counts 5 and 15). In reaching that conclusion I took into account the content of his evidence, his manner, presentation and demeanour. I had the advantage of watching and listening to his evidence over three separate days. He was shifty, feigned lack of memory and wove a false story around the prosecution case. There was no reason to doubt the generalities of his evidence, but I reject the evidence he gave about what I have termed the central allegations relative to each count. I have also borne in mind that his demeanour may have been affected by the number and seriousness of the charges. To make it abundantly plain, I reject his evidence beyond reasonable doubt on the central allegations and do not regard anything he said as to those allegations as a reasonable possibility. I also observe that disbelief of the accused on one count does not necessarily result in disbelief on all counts. As with any witness, I may accept some of the accused’s evidence and reject other parts.
In saying these things, I am conscious of the fact that a rejection of the accused’s evidence on central allegations does not prove those allegations. Those allegations need to be considered on their individual merits. Obviously, to convict on any count I would need to be satisfied of the allegation of indecent assault beyond reasonable doubt. I am so satisfied. The accused will be convicted on Count 1.
S, A (Counts 2-6)
Mr S is presently aged 41 years having been born on 22 January, 1967. He was brought up and went to school in the Henley Beach and Fulham/Fulham Gardens areas. He joined the Naval Cadets in mid-1980 when he was 13 and in Year 8. Exhibit P19 shows he joined on 13 June, 1980. He said he remained in the cadets for about 12-14 months. After that he joined the Adelaide University Regiment Pipe and Drum Band as a junior member.
In the cadets he was in a particular division known as Main Top Division, consisting mainly of band members. Parades, marching and drilling were held on a Thursday or Friday night. The accused, then referred to as Petty Officer Norm Pearce, was the leader of Main Top Division.
When he had been there three weeks, the accused offered to pick up Mr S from home on the way to cadets and drop him home afterwards. The accused may have picked up others, but over time it just became Mr S.
The accused drove a sports version of the HJ or HQ Holden Monaro, two‑door, red and black in colour, a 253 V8, four speed. Sometimes the accused would allow Mr S to change gears and had his (the accused’s) hand over the top and would also rub Mr S’s leg.
Mr S said that the first night of any contact of a sexual nature was when he was being taken home from cadets. This occurred between about four to six weeks after Mr S joined. The accused first bought some food at Hungry Jacks and then parked on The Esplanade at Henley Beach near to what was then the Del Monte Hotel. Mr S said that he was smoking at about that time and the accused had cigarettes in the car even though he (the accused) did not smoke (TP26).
Whilst parked on The Esplanade, the accused rubbed Mr S’s leg, kissed him using his tongue, then unzipped Mr S’s trousers and performed fellatio upon him (Count 2 – unlawful sexual intercourse, over 12). The accused was also masturbating at this time and ejaculated into his own hand, wiping himself with a towel from under the driver’s seat. Later, when driving home, Mr S said it could not happen again and the accused gave him $10.00.
Mr S said there was another occasion six to eight weeks later when there was a band sleepover at the accused’s house in Windsor Gardens. Mr S said he only went to the Windsor Gardens house once (TP38). There were about 10 band members present. This was still during 1980 when he was 13, but some of the others had their driver’s licences. Mr S was one of those who travelled there in the accused’s car. The accused supplied beer and pizzas. One of the cadets had cannabis. Mr S said he was “off his head” owing to a combination of the beer and cannabis. The next day, the accused drove Mr S home but, in doing so, allowed Mr S to drive the car in a muddy area near the Angle Park greyhound track. Other band members were in the car, but only Mr S was permitted to drive it.
Mr S also described at least two occasions when he went to the drive-in theatre with the accused. The first, when it was just the accused and Mr S, was near the Northfield Women’s Prison. There were a number of movies showing, including the R-rated pornography film named “Deep Throat”. Mr S said the accused performed oral sex on him and that Mr S ejaculated in his mouth (Count 3 – unlawful sexual intercourse, over 12). Mr S also said that the accused supplied cigarettes and alcohol (TP33-4). He said the accused always had cigarettes there. When they parted company when the accused took him home, the accused gave him money, probably $20.00.
Other evidence in the trial was to the effect that, between 1982 to 1984, the film “Deep Throat” was not advertised to be showing at a Northfield drive-in (TP457).
Documentary evidence produced at the trial showed that Mr S joined the cadets on 13 June, 1980 (exhibit P19) and Mr S’s evidence was that the attendance at the Northfield drive-in was in 1981 when he was 14 (TP32). The sequence seems to have been this: joined the cadets on 13 June, 1980, after four to six weeks was the Del Monte Hotel occasion (TP24), another six to eight weeks was the band sleepover at the accused’s house (TP28), the Northfield drive‑in was three to four months after the Del Monte Hotel and, as mentioned, Mr S said that occurred in 1981 when he was 14. On that basis, the fact that the film “Deep Throat” does not appear to have been showing at a Northfield drive‑in in 1982 to 1984 is inconclusive.
The second occasion when the accused took Mr S to a drive-in was when Mr S’s fellow cadet, Mr I, went too. This drive-in was at West Beach. Mr S’s evidence was that the accused picked them up in his Monaro from the Henley Square. The accused made alcohol and cigarettes available to them, both of which they had. On Mr S’s account, there was no sexual encounter on this occasion. Mr S said that, by the time of this occasion, he may have moved to the University Regiment, which he did in about mid to late 1981 (TP20, 36).
As to this second occasion, Mr I also gave evidence. Mr I’s date of birth is 8 September, 1966. Although he did not join the Navy Cadets, he was a good school friend of S, A. They lived a short walk from each other.
Mr I said he was picked up from his parents’ home by the accused driving his Monaro, with Mr S as a passenger, and they went to the drive-in at West Beach (TP432, 442). Mr I says he was 14 and in second year high school, making it 1980 or 1981. They both asked for food and drink and the accused gave them money to go to the canteen at the drive-in. The accused also supplied cigarettes to both (TP433, 437, 442). The accused did not smoke (TP26). He also supplied alcohol (TP434, 437, 442). The accused himself said he was not a smoker but would allow them to smoke even though the boys were only aged 13 years (TP657-8).
Some years ago from now, both Mr S and Mr I gave evidence that they spoke together at about the time the police took statements from each of them. Although there may well have been some discussion about the events of the West Beach drive-in occasion, the two did not deliberately or inadvertently give an account where the details corresponded. Each was giving an account from his own memory and there were differences in any event. I find that each gave an account of what each remembered, not something remembered by another and included as if it was an independent memory.

Continuing with Mr S’s account, he described, albeit briefly, other sexual encounters he had with the accused while he (Mr S) was still in the cadets. He said there were at least 20 such occasions when the accused would perform fellatio upon him, generally in the accused’s car, when taking him home from cadets. On most of those occasions the accused would give him money (TP37-38). None of these acts was charged. It was part of the accused’s pattern of behaviour towards this complainant.
Mr S also gave evidence of a specific sexual encounter with the accused at a unit on Northcote Terrace near the Buckingham Arms Hotel at Medindie. Mr S said he went there four or five times. He said there was an occasion when he drove his Ford Cortina to the Medindie house. He turned 16 in January, 1983. He thought he obtained his licence about three or four months after turning 16 (TP39-40). Mr S said he received money in exchange for sexual favours. He said he went to the unit, alcohol was always around, he played on the Atari computer game (Missile Command and Astroids) and then he said he needed money. The accused wanted Mr S to perform oral sex upon him and he put his mouth over the penis of the accused but was not able to continue (TP43) (Count 4 – unlawful sexual intercourse, over 12). The accused then masturbated until he ejaculated. The accused gave Mr S $20.00.
What occurred on that occasion was sufficient sexual intercourse as defined at that time.
Mr S was also asked to describe a sexual incident at the house off Montacute Road when he was 15 or 16 years. He said he had been drinking in Hindley Street and went to the accused’s place to get some money. Mr S said he was taken upstairs to a bedroom, which included a wardrobe with a Handycam video camera which had a red light showing. On his account, Mr S said the accused got some alcohol from downstairs and gave Mr S pornographic magazines named Ribald to read. Mr S described no more than the accused “fiddling with me.” This occasion was alleged by the prosecution to give rise to the acts comprised within Count 5. There is no proof of those acts as charged. In those events, a submission of “no case to answer” on this count was not resisted. I have entered a verdict of “Not Guilty” on that count.
Referring to this same occasion, Mr S said that, soon after he went to bed, he became unconscious. He awoke some hours later, partially undressed, with the accused attempting to penetrate his anus with his erect penis (Count 6 – attempted unlawful sexual intercourse, over 12). Mr S said he got up, put his clothes on and wanted to go. He said the accused gave him a ride some of the way and he caught a cab the rest of the way to his parents place at Henley Beach (TP46-7).
On Mr S’s account, his sexual contact with the accused did not cease then. He said his last sexual contact with the accused was when he was 17, nearly 18. (I mention at this stage that the accused does not deny a sexual involvement with Mr S, but says it did not commence until Mr S was “17ish”. He denied any sexual contact with, or interest in, Mr S while Mr S was a cadet (TP707).)
Mr S said that, when he was 17 nearly 18, when he had not seen the accused for some time (a year and a half to two years), he was working at the BP Service Station, Glenelg North, on Tapleys Hill Road, when the accused by chance called in and he served him. Mr S said the accused was driving a Commodore with the number plates VB 5000. The accused said he was working at the Aviation Department at the airport, not that far north along Tapleys Hill Road. Mr S said they had sexual contact later that day back at the airport. He said the accused gave him oral sex and gave him $50.00. Mr S said he said to the accused that this was to be the last occasion and that that was the last sexual contact (TP48-49). This occasion is not the subject of any count.
The accused also gave evidence about these counts and his dealings with Mr S. The accused estimated that he was in the Naval Cadets for about three to four years, finishing on 10 December, 1981. On that basis, he commenced in 1977, 1978. The Naval Cadets were stationed at HMAS Encounter, Port Adelaide. The accused was initially in charge of a division of cadets known as Main Top Division. His job was to ensure that the cadets were on parade at the right time, dressed properly and that they attended whatever activities were set. Apart from that, the accused supervised the band but was not a member of it.
The accused does acknowledge a sexual relationship with Mr S. He estimated that he commenced that relationship about two years after he left the Naval cadets. Mr S left the cadets before the accused. The accused says he left the cadets in December, 1981 (TP552). He thought sexual relations commenced at about roughly between when he was living at the Campbelltown townhouse and the Medindie unit, probably towards the end of the Campbelltown tenancy (TP501-502). It was a sexual relationship of about 12 months (TP502). The accused agreed that, on his account, it was attractive sex because he was such a young man, there being a 30 year age difference at the time (TP550).
Documentary evidence at the trial suggested that the accused left the Campbelltown address in about July, 1984 and went to the Medindie address where he stayed for about two years.
The accused said that, at least two years after he left the cadets, he was driving west along Henley Beach Road between the Bakewell Bridge and the High School. He saw a person, also travelling west, walking on the same side as him (that is, the southern side). He recognised the person as S, A as he passed. He pulled over and renewed his acquaintance with him. Mr S said he was going home and the accused offered him a lift. He was then asked these questions in examination-in-chief and gave these answers (TP502-3):
Q.Did anything sexual happen between you and Mr S on this day.
A.I can’t specifically recall anything but if he said it did I would accept that because he did say something which stuck in my mind ever since, it’s never gone away.
Q.What did he say.
A.He said to me ‘I wish I’d known about this long ago’.
Q.In what context did he say that to you.
A.Well, whatever we’d been doing.
Q.You are going to have to be specific there, when you say –
A.Well, whatever we did, masturbation or fellatio.
Q.And you say that stuck in your mind.
A.Yes, because I immediately then referred it back to long ago when he was in cadets, because I hadn’t seen him since.
Q.When that stuck in your mind was this the first time that the two of you had engaged in sexual relations.
A.Yes.
He gave other evidence to that effect, saying it had been “some years” since he had seen Mr S at the time he saw him walking along Henley Beach Road (TP554, 557, 707-709).
The accused gave evidence that, at a later time, Mr S rang him at his Campbelltown townhouse and visited one night. The accused agreed he paid for a taxi fare. Mr S had apparently been to a city hotel and drank to excess. The accused also said that the sexual relationship between he and Mr S continued while he lived at the Medindie address.
The accused assumed Mr S was 17-ish, at least 17 (TP506). The accused says that part of the reason for the assumption was that Mr S had a car and talked about driving it and that he was drinking in hotels. He (the accused) believed the legal drinking age was 17 years (TP506).
The accused denied any sexual relations with S, A when he was a cadet. The accused did agree that he picked up Mr S to take him to the Naval Cadets and drove him home also. So far as the individual counts are concerned, he denied the occasion alleged outside the Del Monte Guesthouse on The Esplanade (Count 2).
The accused agreed he may have taken Mr S on some occasion to Hungry Jacks, but denied keeping cigarettes in his car or giving any to Mr S.
Concerning Count 3 (the Northfield drive-in to see a pornographic film), the accused could not recall even taking Mr S, by himself, to that drive-in, but denied taking him to any pornographic movie.
The accused said he could recall going to the West Beach drive-in, but initially his evidence was unclear about whether he went with two boys (Mr S and Mr I), but he later agreed it was them (TP586). He said they asked to go to the drive-in (TP588). However, he denied giving either of them alcohol or purchasing cigarettes for them, but may have given them money for cigarettes (TP510, 589).
The accused says his 12 month relationship with Mr S came to an end when he (the accused) saw and spoke with Mr S at a service station on Burbridge Road, close to the beach. Mr S was working there and told the accused (on the accused’s account) that he had a girlfriend and that they should not see each other again (TP510-511).
The essence of the accused’s defences is that the sexual allegations in the various counts relating to Mr S did not occur and, concerning Count 6, Mr S was more than 16 years and the statutory defence pursuant to s 49(4) applied and had been met on the balance of probabilities (see also TP545-546). As for any uncharged acts, his answer was that those events did not occur.
Although the accused said those things about the allegations and uncharged acts, he also gave evidence of his interaction with Mr S and other Naval cadets.
He agreed that, on at least one occasion (and there may have been other occasions (TP514, 710)), members of the Naval Cadets band stayed overnight at the Hillcrest house, possibly including Mr S (TP580). The reason for that was because they were playing the next day at a parade, for example, at Tea Tree Plaza, and it was a way of making sure everyone got to the right spot on time (TP514). The accused thought there may have been one occasion when the band members stayed overnight when there was no band parade the following morning, in which case he would have driven some of the members home (TP583-4). The Hillcrest house was the only house at which cadets stayed overnight. They never stayed at the Port Noarlunga house.
The accused agreed that he took Mr S to and from the Naval Cadets once he got to know him (TP559-564). The accused also agreed that he sometimes let Mr S change the gears of the V8 GTS to give him some experience in changing gears, but denied it was to “...give him a bit of a buzz” or to ingratiate himself to an impressionable youth (TP564-566). He agreed he may have put his hand over the top of Mr S initially to show him how to do it, but denied touching or rubbing the inside of his leg (TP569-570). The accused also agreed he allowed Mr S to steer the GTS, but denied it was a special treat for him because he was the special cadet with whom the accused had a sexual relationship (TP585-6). The accused also agreed that he allowed the cadets to sit and play inside the GTS inside the Naval base, and left the keys inside so they could turn the music on (TP562, 653‑4).
The accused agreed that Mr S played games on the accused’s Atari games console at the Hillcrest and Campbelltown addresses (TP592-594).
The accused denied keeping liquor at home and keeping heterosexual pornography at home in order to facilitate sex with Mr S (TP603).
Referring back to Count 4, Mr S said there was an occasion when the accused wanted Mr S to fellate the accused and that Mr S started but was unable to continue. The accused said there may have been such an occasion, more than likely at the Medindie house, but at a time when Mr S was legally of age or that the accused reasonably believed him to have been so (TP558, 594).
I have already expressed some general views about the evidence of the complainants and the accused. Particularly in relation to Mr S, concerning Counts 2 and 3, I accept the evidence of Mr S. I am satisfied that those counts are proved beyond reasonable doubt. In reaching that conclusion, I indicate that I reject the denials of the accused.
In respect of Counts 4 and 6, there is evidence to indicate that, those events having occurred at North Adelaide/Medindie, Mr S may have been aged 17 years at the time. On that basis, Counts 4 and 6 are not proved. Even if he was only aged 16 years, the statutory defence has not been disproved and would lead to the same result.
I make the findings concerning Counts 2 and 3 despite some inconsistencies in Mr S’s evidence exposed in cross-examination and his later drug taking problems. I also expressly reject the account of the accused that no sexual relationship took place until (and after) the supposed pick-up of Mr S on Henley Beach Road. I reject that that occasion occurred. I find the sexual relationship commenced as described by Mr S.
C, B (Counts 7, 8 and 9)
Mr C’s date of birth is 8 August, 1967. The evidence showed that Mr C joined the Navel Cadets on 27 June, 1980 when he was about 12 years 10 months of age. His parents had been separated for some years and he lived with his mother and sisters (TP94). First his grandmother, and then his mother, worked as a cleaning lady/tea lady at HMAS Encounter. Mr C believes he remained in the cadets for about six months. He would attend on Friday nights from about 6.00 p.m., 6.30 p.m., 7.00 p.m. until 9.30 p.m., 10.00 p.m., maybe 11.00 p.m. Mr C met the accused as an officer of the Naval Cadets.
Mr C said that, some weeks after joining, he went to the accused’s house at the accused’s invitation. Apparently, Mr C spoke to his mother as had the accused. Just Mr C went on this occasion. It was in the accused’s car on a Friday evening after drills were completed. He described what must have been the accused’s GTS Monaro. Mr C said he was not familiar with suburbs as at that time but it was somewhere in the southern suburbs and it was necessary to travel along South Road or Brighton Road. It was obviously night-time and in winter. (On the defence case, the accused lived at Port Noarlunga from December, 1979 to September, 1981.)
Mr C said the accused supplied him with alcoholic drinks and played video games. The drink was a cider style drink and maybe some beers (TP100). Mr C described himself as getting very drunk, playing video games and suddenly he was asleep. He also said that the accused had heterosexual pornography magazines (TP107). He said he woke up in a single bed somewhere in the house, “...it seemed like it was a hallway...” (TP102). He said he awoke to find the accused masturbating and that the accused manoeuvred his (C’s) hand underneath the accused’s testicles (Count 7). Mr C pretended to still be asleep. The accused then rolled him from lying on his back to lying on his stomach. The accused then had anal sex with him (Count 8). Mr C was naked (TP105). He remained awake for the balance of the night because he was too scared to go to sleep.
Mr C said that, in the morning, he got up and had a shower and the accused dropped him off to a football match in his Monaro. Mr C was then part of the Port Magpies cheer squad. It is said that the accused told Mr C not to mention the alcohol to his mother because both of them would be in trouble.
Mr C also related a second occasion when he went to the accused’s house in the accused’s Monaro, a few weeks after the first occasion. As with the first, he thought he went home and changed clothes before going to the accused’s house. He said the same things happened as with the first occasion. The accused produced alcoholic cider and Mr C played video games. Mr C said he got very drunk very quickly. He woke up in a bed with the accused performing anal sex on him (Count 9). Again Mr C was naked and in the same single bed as before. Mr C reacted in pain to what was happening, the accused stopped and put covers over Mr C. In my view, the evidence is sufficient to support a finding of actual penetration. I make such a finding (TP111). The events in the morning were much the same and he was dropped off again at the football. All of the events relating to him occurred in one football season.
Mr C also described going on a camp at HMAS Encounter itself where there are dormitories in the permanent buildings.
On one of the two occasions of going on camps there, as the result of being beaten up by elder cadets, Mr C escaped by climbing over a wall or gate and running away. The police were apparently quickly notified, Mr C was found and brought back to the camp. Once back at the camp, he was locked in another room away from the other cadets. Mr C says that someone came into the room and sexually assaulted him, but he was a bit “fuzzy” about who it was (TP114).
Obviously, no charge arises from those events. The accused was not identified and I ignore those events as irrelevant except as to the reliability of Mr C. It appeared from the cross-examination that Mr C told the police that the accused was the offender on this occasion or he assumed that (TP144-148, 151-153).
Finally, Mr C related that, after the events giving rise to Counts 7, 8 and 9, the accused asked Mr C to go to his house again. Mr C did not wish to go, so he decided to tell his mother that the accused was providing alcohol so she would not allow him to go. He said that is exactly what happened and he was not permitted to go (TP115).
At this juncture I note that, after some initial cross-examination, the Court adjourned for lunch. After the luncheon adjournment, I was informed that Mr C was ill and was unable to continue that day. His evidence resumed the following morning. He later explained that the previous day he had not taken any or sufficient of his anti-depressant and anti-psych medications and his memory of his previous evidence was vague (TP138). When resuming his evidence he had taken the correct dosage (TP150-1).
When cross-examination resumed, it covered a number of topics, some of them being: what he told the police about how long he was in the cadets; whether the accused’s house had a driveway; whether he was dropped off (after the charged occasions) to the football; whether he met his girlfriend every time he was dropped off; what he told the police about those topics; whether he changed clothes at home before going to the accused’s place and what he told the police about that.
I have considered that evidence. In part, it appears to be the case that Mr C gave evidence that was inconsistent with statements to the police. Notwithstanding some of those answers, I find his evidence to be credible and reliable as to the central features. His memory of events on the margins may be incomplete, but it is clear as to the events surrounding the charges. In making these findings, as with other findings, I am conscious of the fact that the extended delay has made cross-examination on some of the details more difficult. He disagreed with the suggestion that, if he went to the accused’s house, it was in the north-eastern area (TP149).
I accept his evidence that, outside of his involvement with the cadets, he had nothing to do with S, A or W, D and has not spoken to people of that name since that time (TP153-4).
Mrs C, Mr C’s mother, also gave evidence. She confirmed that both she and her mother worked at HMAS Encounter, Birkenhead. She remembered C, B joining the Naval cadets when he was 12 or 13 years and thought he stayed for about four months. Mrs C remembers driving him there. She met the accused once and knew him to be an instructor.
She also remembered that Mr C went to stay the night at the accused’s house on two occasions. She could not remember driving him there and assumes he left from the cadets. She remembered the accused on one occasion dropping Mr C at their house. Further, she remembered a telephone call to her home from a person who Mr C identified as Mr Pearce and Mr C saying he did not want to go to the accused’s place. Mr C wanted his mother to say that. Mrs C told the caller not to call again and hung up the telephone (TP245). She also said that the caller did not identify himself (TP252).

In my view, the fair course is to disregard the evidence of the telephone call from Mrs C except that, after it, Mr C no longer went to cadets.
The accused gave limited evidence about Mr C because he said he could not recall him (TP497). However, he did deny that Mr C ever stayed at the Port Noarlunga house. The fact that Mr C could not describe the house and its surrounds I do not consider to be determinative. The accused denied the allegations in the charges or any other wrongdoing (TP499‑500).
Having considered all of the evidence on these counts, I accept Mr C’s evidence in substance and record verdicts of guilty for Counts 7, 8 and 9.
W, D (Count 10)
The Information as amended alleges the indecent assault occurred between 30 January, 1981 and 31 December, 1983 at Hillcrest. The Certificate of Title from the Hillcrest house shows the accused purchased it in July, 1981 and sold it in July, 1983 (exhibit D30).
W, D is the third of the complainants who were members of the Naval cadets. He was born on 15 January, 1968 and documentary evidence at trial shows he joined on 30 January, 1981 (exhibit P19). At that time he lived in the Largs Bay/Semaphore area. He left school in late December, 1983 and went to Alice Springs. His memory is that he joined the cadets when he was aged 13 years, which is confirmed by the cadet records.
The meetings or parades took place at HMAS Encounter on Friday nights, commencing at about 7.00 p.m. He joined the band after a couple of months. There was band practice on Wednesday nights, which was additional to the Friday nights. He was a member of the band for about three years.
He knew the accused as a Petty Officer, with oversight of the band, particularly on Wednesday nights. He described the accused as more of a “hands-on type person” who may tuck your shirt in for you rather than telling you to do it for yourself (TP159).
He said he stayed overnight at the accused’s place on two occasions. The first related to playing in the band near the Tea Tree Plaza Shopping Centre. He thought that this was at the beginning of 1983 (TP161). They were playing on a Sunday at a time when it would be difficult for Mr W’s parents to get him there. It was arranged for a fellow cadet, C, and Mr W to be picked up from Mr W’s home address by the accused.
This duly happened. The accused was driving his Holden Monaro which Mr W described as “...probably one of the coolest cars around at the time. Besides the colours and the stripes, it had mags...” Mr W thought they went somewhere towards the suburb of Ingle Farm, the north-east suburbs (TP161, 173). At the accused’s house they played on an Atari video game. There were apparently three cadets in all, the third one was referred to as S. Mr W and C drank beer at the accused’s house.
At bedtime, Mr W brushed his teeth and was the last to go to bed. As he walked down a corridor towards the room where the other cadets were, the accused grabbed him from behind on the shoulders and marched him into his (the accused’s) room. He sat Mr W on the bed and said he would be sleeping in the accused’s room. Mr W protested and said he would be staying with the other cadets, walked out and stayed with the others (TP161-2).
I am satisfied this occasion occurred, although it may have been some time in early 1982.
Concerning the second occasion, Mr W thought it was to be a Sunday march towards Christmas 1983. Mr W said he was definitely 15 years old at the time. He turned 15 on 15 January, 1983 (TP176). Mr W and another cadet, C, were due to be picked up by the accused at about 1.00 p.m. on the Saturday. After Mr W was picked up by the accused, the accused said that C was no longer coming. While they were travelling towards the accused’s house, the accused asked whether Mr W would like to see a movie. Mr W replied that he would and the two went to a cinema in Hindley Street and saw the Monty Python film, “Life of Brian” (TP163).
After the film, they went to the accused’s home, being the same as previously. Mr W said the accused offered him beer again and he drank only one, unlike the previous time when he drank four or five beers. Mr W was playing games on the Atari video game machine while the accused watched. He also said that he smoked at the accused’s place (TP168).
Mr W then went to sleep in the same bedroom he had stayed in previously, the bed being a makeshift arrangement on the floor. He went to bed fully clothed, only taking shoes and socks off. He fell asleep. When he awoke he found his jeans and underwear down near his knees, that he had an erection and the accused was masturbating him (Count 10). He was on his back and the accused was lying to his right. Mr W said he was terrified and that he rolled to his left into a protective foetal position. The accused pulled his hand away, waited for a while and left the room. Mr W did not want to fall asleep again so he went into the lounge and played Atari video games (TP169). The next day the two went to the Tea Tree Plaza for the march and parade.
He did not recognise S, A or C, B (the other two Naval cadet complainants) who were in and about the witness waiting area. I am satisfied from W, D’s evidence also that there has been no collusion between them or unintended mixing or additions to their respective memories.
It was suggested to Mr W in cross-examination that the accused left the cadets in December, 1981. This suggestion was made against the assertions that the two occasions to which Mr W referred must have occurred in 1982 and/or 1983. Mr W said he completely disagreed with that (TP178).
The same suggestion was made about the Monaro (which documentation showed was disposed of about 20 May, 1982), but again Mr W completely disagreed (TP178). Similarly, he rejected the suggestion that he did not go to a movie with the accused in 1983 in or about Hindley Street.
The accused’s evidence concerning Mr W was a series of denials. The most he could recall was the name, but nothing else (TP516-517).
A Government Gazette of 10 November, 1982 was tendered showing that, on that day, The Honourable J. Bannon was appointed Premier of South Australia. Proof of that fact was relevant to Mr W’s evidence that, on the second occasion, his friend C was not there (although he was on the first occasion). His friend C apparently worked in the Public Service at this time and used to open the door for Mr Bannon, the then Premier. The evidence was said to undermine Mr W’s reliability and truthfulness because, at that time, according to the accused, he had left the Naval Cadets in December, 1981. I indicate that I reject the accused’s evidence that he left the cadets in December, 1981 so as not to be able to be involved with the cadets in 1982 and 1983.
Of note even from the accused’s evidence is that he used the old Metro cinema in Hindley Street and had an affection for the film “Life of Brian” and Monty Python (TP648-649). I also note that, in cross-examination, he had no memory of taking Mr W to some cinema in Hindley Street (TP648).
The case for the accused on this count is that it did not happen and could not have happened in accord with the timetable identified by Mr W. I found Mr W to be an impressive, intelligent and articulate witness. I have absolutely no doubt the accused offended against him in the way alleged during the dates alleged. Mr W used certain temporal links to the occasions he identified. I do not regard those links as being crucial to the correctness and truthfulness of his account, nor do they cause me to doubt the truth and accuracy of the central events. When events occur in the early 1980’s, the timetable may not be accurate but the central events are. Mistakes have possibly been made by Mr W, but that is understandable. That is the position in which I find myself. I find the charge proved beyond reasonable doubt and there will be a conviction on Count 10.
B, E (Counts 11 and 12)
These two counts and those that relate to his brother, B, M (described in the Information as M, M – Counts 13-16), deal with a time when the accused was the secretary of an Atari computer club known as the Adelaide Atari Computer Club (“the computer club”). B, E is the eldest of three brothers.
A little needs to be said about the B household. B, E was born on 19 July, 1969. At some stage, Mr and Mrs B separated and Mrs B took up with a man named RM. After a number of moves, they moved to a house in Baker Street, Enfield where they lived for three to four years (TP316). They then moved to Crawford Avenue, Blair Athol in about 1982 or 1983. B, E thinks he was about 14 years of age at the time of that move.
B, E, from grade 6 in primary school, had a keen interest in computers. Ultimately, in fact, he made a profession of that involvement. His stepfather, RM, purchased an Atari 400 model computer which was in the home. B, E played games on it and even wrote games on it. The games were played through the normal television.
There was at that time a more advanced computer that was purpose-dedicated for games, namely an Atari 2600 model. Games were on a cartridge that was plugged into the computer and played through a television. The B/M household did not have such a model.
RM started going to the computer club in either 1980 or 1981 as a member. B, E was a member of the club for four or five years until about 1985, 1986. He started going when he was around 12 years. B, E, through his stepfather’s involvement with the computer club, met the accused. B, E saw the accused at club meetings, which were held every month. The accused visited the B/M home and became a friend of the family, exchanging games, software, talking about computers and the computer club (TP320-321).
B, E said he stayed overnight at the accused’s home on a Saturday night. B, E could not remember how that came about, but he said that the accused had the next model up from him, the Atari 800 computer, and B, E remembered programming it at the accused’s residence. B, E was still living at Crawford Street, Blair Athol, from where the accused picked him up in a VB or BC Commodore. He remembered travelling east along Grand Junction Road. The car was a fairly new model, two-tone, lots of buttons on the dashboard, with a velour caramel brown trim.
B, E said the accused lived in a two-storey townhouse which he described as open plan lounge/dining and kitchen downstairs, and master bedroom, bathroom/shower and study/computer room upstairs. He said there was an Atari 2600 games style computer plugged into the television downstairs. It was cold and there was a kerosene heater lit. Upstairs there was an Atari 800, also attached to a television. Later in the day, B, E was upstairs writing a maths programme on the Atari 800. He was doing that for about two hours and for much of the time the accused was watching over B, E’s left hand shoulder. After a period, the accused put his hand on B, E’s left leg, gradually moved it up and touched B, E’s genitalia area through his pants (TP326) (Count 11). B, E asked him to stop and the accused did not continue.
One of the other features that B, E remembers of that occasion is that a game of chasey somehow began and B, E ended up running into the accused’s bedroom. The accused blocked the exit to the room but, as B, E tried to get past him, the accused grabbed him and put him on the bed. The accused was facing him and on top of him, holding B, E’s arms above his (B, E’s) head, effectively straddling him. In that position the accused had an erection, rubbing that against the genitalia of B, E (TP328-329) (Count 11). That lasted a short time and the accused asked whether B, E wanted to stay in his (the accused’s) bed for the night, which offer B, E declined. That night B, E slept in a single bed in the same room as the Atari 800 computer.
The following morning B, E went downstairs and played on the Atari 2600. After a while, B, E heard the accused calling from upstairs and walked to the bottom of the stairs to see what he was saying. He looked up and saw the accused drying his hair, apparently after a shower, completely naked, with an erection. B, E was stunned and shocked, he answered whatever the question was and then went back to the computer. Later in the day, the accused drove B, E home in the same car. It may have had a sunroof.
B, E remembers his brother B, M going to the accused’s house on at least one occasion, maybe two or three weeks after B, E. He remembers B, M coming home after that and being very reserved and withdrawn (TP333).
B, E also described that, after the incident at the accused’s home involving him, he and his brother lived at Crawford Street for four to five more years. They then went their separate ways, particularly B, M who went to Ceduna. Ultimately, B, E moved to Sydney where he continues to live. Since that time, they have rarely spoken on the telephone. They have never spoken about what happened at the accused’s home.
Finally, B, E is able to provide a guide to his age when he went to the accused’s home by virtue of an article in the computer club magazine, Feedback (exhibit P16). That issue of the magazine includes an article written by B, E when he was aged 14 years. (It is under the name of M, E, his stepfather’s name.) It was the programme in that article that B, E was working on when he stayed overnight at the accused’s townhouse. The issue was for March, 1984 (TP334-335).
It was put to B, E that, if the accused touched him on the leg, it was not on the genitalia and that he had misinterpreted the touch as a sexual touch. He disagreed (TP338). He also disagreed that there was no chasey game with inappropriate touching.
B, E acknowledged that he and his brother B, M had both been the victims of sexual abuse by RM (TP338, 340). That abuse was said to be of the same type perpetrated by the accused. By implication, B, E was saying he had not transposed offenders or misinterpreted.
I accept B, E’s evidence that he did not discuss with his brother B, M the alleged abuse of either of them by the accused. B, E thought it was just happening to him and he did not want to get anyone into trouble (TP343).
The accused denied the offending involving B, E but said he accepted that he stayed at the Campbelltown two-storey unit. To arrange it he would have spoken to RM or his mother. The accused may have suggested that B, E come over and use the more powerful computer. There must have been an arrangement that he stay the night (TP672-3). Any touch on the knee or shoulder would have been to give him encouragement. He denied he was testing to see how far he would be allowed to go (TP674-5).
The accused also denied a chasey game with B, E (TP519-520, 623, 676). The accused said that the following morning he could not recall calling out to B, E and had no reason to call out to him (TP678-680).
The accused said he got to know RM through the computer club. He said they shared an interest in computers and the accused went to his house to swap computer programmes. The accused accepted that B, E went to meetings of the club (TP521). The accused agreed he had both the games system and computer Atari model for his own interest. He agreed that when the cadets came to the Hillcrest house “...they all thought the Atari was pretty flash” (TP592). The Atari games machine was downstairs and the computer upstairs (TP597).
I find that B, E was also an intelligent, articulate, confident and knowledgeable witness. I find that he was telling the truth concerning the two incidents involving him. Not only was it truthful, it was accurate and reliable. I reject the accused’s denials on each count. I find that the accused intentionally and deliberately indecently assaulted B, E as alleged. Verdicts of “guilty” will be recorded for Counts 11 and 12.
B, M (formerly M) (Counts 13, 14, 16 and 17)
All of these counts relate to the same alleged occasion when B, M was said to have stayed overnight at the accused’s townhouse at Campbelltown. As noted previously, there was no opposition to a “no case” submission on Count 15, and a verdict of “not guilty” has been entered (TP473).
I mention again that B, M is one of the younger brothers of B, E. (I propose to use the name B, M because that is the name by which he is presently known, although he is described in the Information as M, M, being the name of his stepfather at the time of the alleged offending.)
B, M was about five years of age when his parents separated. His mother then took up with RM. They lived in a number of places, eventually moving to Blair Athol.
B, M came to know the accused through the Atari Computer Club. B, M went there on occasions because RM was involved with the computer club. He could remember the accused coming to his house a few times, possibly to swap computer games with RM (TP303). B, M was born on 2 October, 1974 and first met the accused when he was seven years old, about 1981, 1982. The accused was then driving a VB or VC SLE Commodore. (Other evidence shows the accused to be the registered owner of a VB SLE Commodore from 11 May, 1982 until 10 June, 1987.) It was like a Calais of today with electric windows, power steering, two‑tone exterior, burgundy/maroon interior and mag wheels with spokes.
B, M went to stay at the accused’s house on about three occasions, being by himself on each occasion. He said it was a two-storey townhouse near Marden and Campbelltown, in a north-east direction. He thought he was seven years, not eight, that is, before October, 1982 (TP288-290).
B, M said he was picked up by the accused in his Commodore. He had a takeaway for his dinner. That evening B, M was playing the Atari game because the accused “...had a cupboard full of them because he had a cartridge console set up which you plug into the TV and you play the games on them” (TP291). He recalled one called “Pitfall”.
At bedtime, B, M described them both taking off all of their clothes and getting into the accused’s bed. The weather was warm. Under the covers he said the accused was fondling him around the genital area and buttocks (TP292-293) (Count 13 – indecent assault).
The accused then committed an act of fellatio upon B, M which continued for some time (TP293-294) (Count 14 – unlawful sexual intercourse under 12).
The accused then wanted B, M to commit an act of fellatio upon him (the accused). B, M described how the accused pushed his (B, M’s) head down and unsuccessfully tried to force his penis into B, M’s mouth (TP294) (Count 16 – attempted unlawful sexual intercourse under 12).
B, M described other events later in the night whereby what he presumed might be a finger was placed into his anus causing pain and discomfort (TP294‑5) (Count 17 – indecent assault).
The next morning he had breakfast at the townhouse and the accused took him home, possibly after some lunch (TP295). There may have been a separate occasion that the accused took B, M to a café off Hindley Street for brunch (TP295-296).
B, M was challenged in cross-examination as to whether he had been to the Campbelltown townhouse. (It is the case for the accused that B, M did not go there at any stage and that the allegations about him are untrue.) B, M said he assumed it was the Marden/Campbelltown area because many years later he was installing air-conditioners nearby and went to the Marden Shopping Centre. He recognised it as being the place where the accused took him (TP305). His identification of that area in proofing was not disclosed to the defence.
Importantly, in addition to that, B, M was asked to draw the layout of the townhouse, upstairs and downstairs (TP306-308). B, M said he had not discussed the events or case with his brother B, E (TP308). In fact, B, M said he did not know B, E was involved until the week before they both gave evidence at trial (TP296).
B, M also agreed that he had been the victim of sexual offending by RM some of it of a like nature to that he said was performed by the accused. However, he said he was not ascribing to the accused something done to him by RM (TP309). B, M said that initially when he spoke to the police he made no mention of offending by the accused because he had blocked it all out until three years ago (TP309-310).

As mentioned, the case for the accused is that B, M did not ever go to the Campbelltown unit. Evidence tendered by the accused shows that the accused was living at Macquarie Avenue, Hillcrest until early July, 1983, when he was living at Campbelltown (exhibits D30, 31 and 32). When confronted by that, B, M said he believed the offending took place in 1981/1982. Although he doubted whether it was 1983, it could have been (TP311).
The accused was asked to describe the Campbelltown unit. His description was substantially in accord with that described and drawn by B, M (TP666-668). The accused agreed the bottom floor drawing was reasonably accurate, but could not remember the upstairs (TP710-711). The drawing is likely to be inaccurate in that it shows the laundry to be upstairs, but I do not have any independent evidence of the layout.
There were some minor shortcomings in the evidence of B, M, but the worrying feature of his evidence is that he could not remember any of the events giving rise to these charges until three years ago. He had, as he said, blocked everything out (TP309-310). Further, his description of the actual alleged offending lacked any real detail, but he gave a good description of a townhouse to which he had supposedly not been. I am left in a position of being uncertain about the reliability of his evidence. I have no doubt that he was doing his best to tell the truth, and believes that he was telling the truth, but I am left with some uncertainty. He may well have blocked out events from 25 years ago until three years ago, but there are dangers in acting on a memory when the same sort of offending occurred with RM.
I also mention the application to amend the particulars of these counts to allege a different age of B, M and extend the alleged offences period by two years. There certainly was a need to amend the particulars. Such an amendment could have been made because the defence of the accused was unaffected, namely, it simply did not happen. However, having regard to my view about these counts, it is unnecessary to take the matter further.
No matter what view I take of the accused’s evidence, I am simply left in doubt so far as these charges are concerned and record verdicts of “not guilty”.
S, D (formerly C) (Counts 18-23)
The counts involving S, D (formerly C) relate to a period when he was a member of what was known as Air Youth. These charges, and those relating to R, A and R, P, relate to the early 1990’s. Mr S took his mother’s maiden name after his parents divorced four years ago. His date of birth is 3 October, 1978 and he was aged 30 years at trial.
Mr S gave evidence of the various separations of his parents. He said he joined Air Youth when he was eight years old (1986) and left just before his 13th birthday (October, 1991). When he joined Air Youth of South Australia he was with No. 1 Squadron at Parafield Airport. He explained that Air Youth was separate from the Air Force but was a precursor to the Air Training Corp, which was the formal cadet training for the Air Force. Both of Mr S’s parents were part of Air Youth (TP183-184).
Mr S came to know the accused as an officer of Air Youth, particularly helping him train cadets when a new squadron was commenced at Mount Barker. At this stage, Mr S was doing drill instructions, teaching about aircraft and was with the band (TP186). He thinks he first met the accused around December, 1990, although he had seen him about Parafield Airport (TP186).
Mr S would help the accused with parades at Mount Barker on and off over some months. At this juncture, Mr S’s father was not living at home, having left at the end of 1990 and returning later at the end of 1991. Mr S was living at Parafield Gardens at that time (TP187). He assisted with parades on Friday nights and was picked up from his home by the accused. On the first such occasion he stayed overnight at the accused’s home rather than go home. Mr S said that, after he was picked up from Parafield Gardens, they stopped off at a McDonald’s for dinner (TP189). He said the accused was driving a VN Calais, burgundy maroon top half, with silver bottom half, two-toned. The interior was velour, cord style, reddy colour. That was the first time Mr S had been to McDonald’s (TP190).
After the parade, they went back to the accused’s house at Beulah Road, Norwood, arriving at about 10.00 p.m. It was a two-storey townhouse which he described (TP192). He said that exhibit P7, a series of photographs of the Norwood townhouse, accurately depicted the layout. The accused did not dispute that Mr S stayed at the Norwood townhouse following attendance at Mount Barker and even on other occasions unrelated to going to Mount Barker (TP528-529). The accused said that, after the attendances at Mount Barker, it was convenient to stay at his Norwood place because he would be going past his house and it would be rather a late night if he had to travel to Parafield Gardens and back home (TP528).
On the first such occasion after attendance at Mount Barker, they arrived at the townhouse and the accused made hot drinks. Mr S recalls watching the horror film “Friday the 13th” on television. While that was happening the accused came and sat beside him. The accused then told him to have a shower. Mr S took his overnight bag upstairs to the bedroom that contained a single bed and a queen size bed (TP195).
The accused went into the bathroom with Mr S and told him to undress, which he did. The accused said he needed “...to start the shower because there was something weird about the taps, setting the temperature” (TP194). He then allowed Mr S to shower in privacy. The accused had told Mr S to let him know when he had finished. When Mr S finished his shower, he called out to the accused. The accused then entered into the bathroom naked and had a shower. The accused “...made a comment about in the navy it is normal, it is normal for men to shower naked and there is nothing to be ashamed of” (TP196). (See also accused’s evidence on this topic of showering which is discussed below (TP679-681).)
Mr S went into the bedroom to get changed and the accused said he had put some clothes out. Mr S saw on the bed one of his own T-shirts and a pair of red bike shorts (belonging to the accused, TP196). Mr S put those items on, went downstairs and lay on his stomach watching television. The accused also came downstairs. He was wearing black bike shorts. He straddled Mr S, started rubbing his back (over the clothing) and then his bottom while he (the accused) was masturbating. Mr S asked, “What are you doing?” and was told, “Just relax” (TP198). The accused had an erection, was circumcised and Mr S believes he ejaculated (Count 18 – indecent assault, that is, an application of force by the accused in circumstances of indecency).
The accused then got up and went to another area and came back. He again straddled Mr S with an erection. Initially, he pushed against Mr S’s buttocks, both with their shorts on, and then the accused took his penis out, pulled Mr S’s shorts down and had anal sexual intercourse with him (TP199-201) (Count 19 – unlawful sexual intercourse over 12). After the accused’s penis came out of the anus, the accused continued to thrust between Mr S’s legs for a short time. The accused told Mr S not to say anything or “...he would kill me if I say anything.” He said, “People won’t understand”(TP202). Mr S said they went upstairs to the accused’s bedroom, Mr S sleeping in the single bed and the accused in the queen size bed. Nothing else of significance occurred that night (TP203).
The next morning Mr S had a shower and, in doing so, noticed a “crusty substance that was between my scrotum and my bum” (TP204). They had breakfast in the city at a café between Rundle Mall and North Terrace. The accused then drove Mr S home. The only significant comment by the accused was that, upon seeing a male crossing the street, the accused said, “I’d like to bum him” (TP204).
The accused told Mr S there would be other occasions when he went to the accused’s townhouse. Mr S said he was scared and worried (TP205). Mr S said there were six to eight times he stayed at the accused’s townhouse between early 1991 to October, 1991. There was sexual contact on each of those occasions, although no detail was given (TP206).
There was another occasion when Mr S stayed overnight after the permission of the parents was obtained, even though there was no attendance at Mount Barker. On that occasion, during the day, he also showed Mr S where he worked at the Adelaide Airport as they drove along Tapleys Hill Road. In the evening of the airport occasion, the accused took Mr S back to the Norwood townhouse. While Mr S was watching television, the accused again came and sat on his back and was masturbating himself. Then he stopped that and turned Mr S onto his back and guided Mr S’s hand onto his (the accused’s) penis to masturbate him (Count 20 – indecent assault). Mr S pulled his hand away and the accused masturbated himself to ejaculation. Mr S was offered the opportunity to sleep in the accused’s bed but slept in the single bed (TP216-217).
On a separate occasion, Mr S also remembered the accused taking him to the Pancake House/Kitchen in Gilbert Street (TP206-208). Upon returning to the accused’s townhouse, he said Mr S was sleeping in his (the accused’s) bed. The accused said Mr S had to sleep naked. Both he and the accused got into bed naked. The accused had an erection and initially tried to have anal sexual intercourse with Mr S with the two of them on their sides, the accused being behind Mr S. This was unsuccessful. The accused then lay Mr S on his stomach and had brief anal sexual intercourse with him. He then withdrew and was thrusting between Mr S’s legs and ejaculated (TP210-211) (Count 21 – unlawful sexual intercourse over 12).
The accused then told Mr S to position himself behind the accused and then took Mr S’s hand and guided it onto the accused’s penis. Mr S pulled his hand away and the accused tried to guide Mr S’s penis into the accused’s anus. This was unsuccessful (TP210-212). Mr S then climbed into the single bed and fell asleep (Count 22 – indecent assault). The next morning, Mr S noticed blood between his scrotum and anus when he was having a shower. The accused then drove Mr S home to Parafield Gardens.
The final count for this complainant (Count 23 – indecent assault) relates to an incident that is said to have occurred at the Air Youth Squadron at Parafield. Mr S had moved to the Air Training Corp, which was part of the Royal Australian Air Force for cadets. He had turned 13 years. Mr S was at a function at No. 1 Squadron. He was told to get something from what was termed “the headquarters”, which was a distance away in a separate building. When he arrived at the headquarters, he saw the accused in the boardroom area. Mr S needed to go into the boardroom and while Mr S was doing whatever he had been tasked to do, the accused came over to him and started touching Mr S’s crotch area over the top of his clothes (TP221) (Count 23 – indecent assault).
Apart from knowing the name R, P (the last complainant), Mr S said he did not know R, A (the second-to-last complainant) (TP222-223).
As has been mentioned, Mr S linked the first occasion of sexual assault upon him to the horror film “Friday the 13th” in early 1991. In cross‑examination it was put that the first showing of that film or series was July, 1991. Mr S said he may have got the television programme mixed up but he was sure of the actual incidences (TP232, 240-1).
Mr S told the accused about difficulties he was having at home that led to his father leaving in late 1990 for about a 12 month period. He told the accused a number of things, including that his mother would protect him and that she used to pull his father off him (TP234). Mr S agreed the accused befriended him, was nice to him, was kind to him and took on the role of a friend (TP234-235).
In relation to the red Lycra bike shorts, Mr S denied that he had asked the accused if he could have them (before Mr S wore them) (TP235-236).
Asked why he went back to the accused’s home after the first occasion of sexual assault, Mr S said (TP236):
A.Because I was young and I was scared about what would actually happen if I didn’t.
Q.What were you scared about if you didn’t go back.
A.I didn’t think they would believe me if I did tell them anyway. Basically Mr Pearce was a trusted member of the Air Youth at the time. I was having problems at home, I was scared by what he did to me, yeah.
It was suggested that the accused was no more than a friend and that the friendship involved Mr S sleeping at the accused’s home, but that no sexual offending took place. Mr S said he was “astounded” by that suggestion (TP237), referring to no sexual offending. He did agree, however, that the accused was a friend and was a haven from the family situation (TP238). Mr S also denied that, on the occasions he slept over, he (Mr S) would move from his single bed to the accused’s queen size bed for a non-sexual snuggle (TP238-9).
As is apparent from the cross-examination referred to in the preceding paragraphs, the accused admits that Mr S was at his townhouse on a number of occasions overnight, but that no sexual impropriety took place (TP530-532, 701). The accused said Mr S saw the red bicycle shorts and asked for them. Although the accused initially refused, he relented and gave them to him (TP529).
The accused told of an occasion when they were in their respective beds one night and that Mr S climbed in with the accused and went to sleep. The accused said nothing of a sexual nature occurred (TP530, 701-703).
The accused agreed he took Mr S to the Pancake Kitchen on one occasion, pointed out where he worked at the airport and the Glenelg sideshows (TP531-532).
The accused was cross-examined about his attitude to himself being seen naked by two boys who stayed the night on separate occasions, B, E and S, D. I found that to be a very telling cross-examination. What seemed to underlie his answers about these two boys was that the accused was prepared to be seen naked by B, E and have S, D be naked in front of him. I find that the accused found those two boys to be sexually exciting in those situations (TP679-681, 699).
I find that the accused knew only too well about the marital difficulties of Mr and Mrs C (S’s parents), that Mr S was having a difficult home life at times and that he targeted Mr S as of sexual interest (TP693-695). I find that, over time, the accused cultivated and developed a sexual interest in S, D (formerly C) despite the approximately 40 year age difference (TP703‑705).
The accused’s reasons for having a single bed and a queen size bed in the main bedroom are spurious (TP698-699). There were two other bedrooms upstairs that could easily have been rearranged to accommodate a single bed and facilitate privacy and modesty for these young men or boys.
I found the complainant S, D (formerly C) to be a very good and convincing witness. Unlike some other complainants, there was very little scope for criticism. The case put on behalf of the accused is that the events as alleged simply did not happen and that, if anything, the accused’s position was enhanced by some candid answers. I accept the evidence of the complainant and find each of the charges proved beyond reasonable doubt. In so doing, I have rejected the case for the accused and his denials beyond reasonable doubt.
I find particularly that the offending against this complainant was part of a system of conduct against him and some other complainants. The accused viewed S, D as vulnerable to overtures and manifestations of friendship in the form of treats and outings. The accused was a mature adult and person in authority. He drove an attractive, appealing car and offered his townhouse as a safe haven from family troubles. He preyed upon this young boy and I have no doubt offended against him in the way alleged. I have disregarded any so‑called uncharged acts because they were too imprecise.
R, A (Counts 24, 25 and 26)
These three counts have a factual nexus with the count involving R, P (Count 27). All four counts involve the attendance of both boys at an Air Youth camp at a Stirling site known as “Woorabinda Camp”.
Again, some background is needed. R, A is now aged 29 years and was born on 12 October, 1979. He attended primary and secondary schools in Victor Harbor. He finished school in 1997 and joined the Army in 1998. He knew of R, P who lived in the Mount Compass area. Their respective parents knew each other. Both boys joined the Air Youth of South Australia in 1991 when it was established at Victor Harbor. R, A was then aged 11, going on 12 years. They then had more to do with each other.
Air Youth involved teaching rudimentary military-type skills; drills, dress inspections, parades, general knowledge on aviation subjects, aircraft modelling, basic navigation and first aid (TP345-385). R, A first met the accused on a normal Monday night parade. The parade involved meeting the accused and other officers.
In January, 1992, both boys attended an Air Youth NCO leadership camp at Stirling at the Woorabinda Camp site. It had accommodation and other buildings for such a camp. It took place over 3rd to 5th January, 1992. The boys had the permission of their parents to go. The arrangement was that they would be dropped off at the Victor Harbor Post Office (where R, A’s father worked) and an officer from Air Youth in Adelaide would come down and pick them up. That officer turned out to be the accused. (There is no dispute that the accused picked up both boys: TP533).
R, A was then aged 12 years. The camp was to be over a Friday and Saturday, returning home on Sunday. The accused picked them up at about lunchtime on Friday driving a VK or VL Holden Calais. R, A sat in the front passenger seat and R, P in the left rear seat. The accused said he had to go back to his home to pack.
During the trip to Adelaide, R, A said that the accused, during the course of chit-chat and laughter, grabbed his (R, A’s) right thigh. Similarly, the accused would turn around and use his left hand to grab R, P’s knee.
The accused, in his evidence, denied any such touching, but acknowledges he may have brushed one or other with his hand as a gesture. But the accused did go on to say “...I touch people on the knee or on the shoulder and I express myself and I do it now with anybody.” He denied touching either boy as a precursor to sexual interest (TP570-571, 675).
The accused took the two boys back to his townhouse at Norwood. The boys remained downstairs while the accused showered and packed. R, A remembered meeting up with others at a service station and then travelling together to the camp. The accused does not really dispute these events, although he remembers going to a model aeroplane shop on the way back from Victor Harbor and also going to the supermarket to get lollies, drinks etc (TP533-544).
The sleeping accommodation was for about 15-20 in a barrack style room (TP395). It was while R, A was in this room that the accused touched him for the first time at the camp. It was just before a meeting nearby to explain the night’s activities. They happened to be the only ones in this room. The accused was laying on his back and R, A was also laying on his back, but on the accused’s stomach. R, A said there was tickling all over, just generalised over the body, including kissing the head (TP397-400).
R, A described a similar situation later that evening when again they were lagging behind in the sleeping accommodation. It was after the game known as “Storm the Lantern” (TP400). Their positions were much the same on the bed but the touching and tickling went further, with the accused touching his genital area over his clothing and again there were kisses on the head (TP401‑402) (Count 24 – indecent assault).

On the Saturday evening there was to be a formal dinner. Before the dinner, R, A was sitting on his bed and the accused sat down beside him. Again it was just the two of them. R, A said he was trying to avoid the accused (TP404) and the accused said, “What’s wrong?” The accused told him to “cheer up” and put his arm around R, A’s shoulder and pulled him in closer. Then the accused pulled them both on to the bed, with R, A’s back towards the accused’s front. The accused then reached around and put his hands down R, A’s pants and touched his penis over the underpants. The accused then pressed up against R, A with an erection. R, A suggested someone was coming and the accused stopped (TP405-407) (Count 25 – indecent assault).
The only other incident on the Saturday was when it was “lights out” in the accommodation room. It was dark. The accused came in and squatted down to the person on R, A’s left and said his (R, A’s) name. There was a ruffling of the sleeping bag. Someone said, “It’s not me”, and the accused moved to R, A’s bed, said his name and grabbed R, A’s leg. R, A pretended to be asleep and the accused left (TP408).
The final incident occurred on the Sunday when R, A was in the accommodation room with a number of other cadets completing a questionnaire. R, A was kneeling at a low round table, but sitting back on his heels. The accused came up close from behind and from underneath put his hand under “to caress...my scrotum”. R, A collapsed his legs and the accused withdrew his hand (TP409-411) (Count 26 – indecent assault). There was nothing more.
R, A and R, P were taken by the accused to Strathalbyn where R, A’s father picked them both up and took them home (TP411). Apart from the two boys seeing each other a month or so after the camp, there has not been any communication since that time in early 1992 (TP411). (I ignore anything that may have been said to parents.)
The case for the accused was that these indecent assaults did not occur and the three separate occasions that supposedly gave the opportunity for them did not occur and were unlikely to have occurred (TP422, 424, 705-6). In addition, as to the alleged events on the Sunday before leaving, there were others about that would render any offending unlikely.
I accept the evidence of R, A beyond reasonable doubt. His evidence was accurate and reliable. I reject the accused’s denials beyond reasonable doubt. There may have been limited opportunities for the offending but I find they became available and the accused committed the indecent assaults as alleged. The accused’s offending was opportunistic in the sense that he discovered R, A alone and took advantage of that opportunity. It should not be overlooked that the offending on each occasion was of quite short duration. An extended period of time was not necessary.
I find the accused guilty of the indecent assaults on Counts 24, 25 and 26.
R, P (Count 27 – indecent assault)
The occasion for this alleged offending is the same Air Youth camp involving R, A.
R, P is presently aged 30 years and was born on 23 September, 1978. He met R, A at Air Youth and became friendly with him (TP255). He was also aged about 13 when he joined Air Youth.
R, P first met the accused when there was a special parade for officers from the head office of Air Youth. He also remembers going to the camp at Stirling. The accused picked up both he and R, A from the Post Office at Victor Harbor. The accused was driving a VL Holden Calais with personalised number plates. It was a very well-appointed car with impressive instrumentation and stereo (TP261).
R, P recalls the accused putting his hand on his knee as the accused drove. R, P was sitting in the rear left hand passenger seat. The accused was emphasising the funniness of a joke. He also saw the accused put his hand on R, A’s knee (TP261-2).
In Adelaide, the accused took them to the Norwood Shopping Centre and bought them lollies. He then took them to his townhouse in Norwood. They played computer games while the accused had a shower and got changed. R, P said the accused came out of the shower wearing a towel and made a joke with them (TP263-265). The accused then took them to Parafield Airport where they met up with others who were going on the camp. R, P went to the camp site in another car.
The incident involving R, P occurred on the Saturday after lunch. R, P is unsure how it came about, but he and the accused were the only two in the dormitory. R, P was standing near his mattress and the accused came in and sat on a nearby mattress. The accused indicated for R, P to come and sit in his lap. This R, P did and the accused patted his hair and kissed his head saying, “Aren’t you a beautiful boy, one of my beautiful boys” (TP270-272) (Count 27 – indecent assault).
Concerning R, P, otherwise the events of the weekend were without incident. On the Sunday, the accused drove the two boys to Strathalbyn where R, A’s parents picked them both up and took them to Victor Harbor (TP273).
The case for the accused was that the touching incident in the dormitory did not happen as alleged. It was suggested to R, P that there was a game the cadets were playing in the dormitory at some stage where one cadet was sitting higher and another cadet would run fingers up the leg of the sitting cadet. R, P remembered one such game that was played at night-time when the accused was the only adult in the room. R, P could recall such a game and that the accused ran his fingers up the leg of a cadet and that that cadet was R, A (TP278-279). (R, A could not recall any such incident (TP420-1)).
R, P reiterated that the accused did beckon him to his lap and referred to R, P as “one of his beautiful boys” (TP280). As mentioned, the accused denied those events occurring (TP542-3, 705-6).
As for the game the cadets were playing running fingers up the leg, the accused said he was walking past “...and another cadet had just finished and they were laughing away so I ran my fingers up, maybe a bit higher than the others – that might have been the dare or something, I don’t know” (TP543). The accused says the cadet was R, A.
As for this final count, I accept beyond reasonable doubt that the events occurred as R, P said in evidence. I am satisfied that there was no collusion between R, A and R, P as to the nature of the allegations of each. The nature of those allegations by each is somewhat unusual and is highly unlikely to have been concocted separately by each.
However, notwithstanding those findings, a number of questions remain. An indecent assault occurs where there has been an unlawful application of force, with either of the requisite intents, accompanied by circumstances of indecency.
I have no doubt that there was an unlawful application of force. No lawful reason has been put forward and none exists. The application of force must be done with an intention on the part of the accused, namely, either the accused knowing the victim does not consent or being recklessly indifferent as to consent. As to the latter, it would be sufficient if the accused realised that the alleged victim may not be consenting and decided to press ahead regardless. Here, I am satisfied that the accused was recklessly indifferent.
Finally, the proved actions must be accompanied by circumstances of indecency. The circumstances embrace the actions and the words. The Judge applies the standards of right thinking members of the community. I am satisfied that the touching, stroking and kissing of a 13 year old boy who was barely known to the accused, accompanied by the words, “Aren’t you a beautiful boy, one of my beautiful boys”, are circumstances of indecency.
The accused is convicted on Count 27.