R v Porter (No 2)
[2022] ACTSC 50
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Porter (No 2) |
Citation: | [2022] ACTSC 50 |
Hearing Dates: | 28 – 29 October 2021, 18 November 2021 |
DecisionDate: | 21 March 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [262]-[266] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – disputed facts hearing – engaging in a sexual relationship with a child under special care – guilty plea – dispute regarding number of occasions of sexual activity – dispute regarding number of occasions of penile-anal intercourse |
Legislation Cited: | Crimes Act 1900 (ACT) ss 56, 64, 65, 66 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 74 |
Cases Cited: | Duffy v The Queen [2009] NSWCCA 304 Filippou v The Queen [2015] HCA 29; 256 CLR 47 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 |
Texts Cited: | Explanatory Statement, Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT) |
Parties: | The Queen (Crown) Stephen James Porter (Offender) |
Representation: | Counsel A Chatterton (Crown) J Pappas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Hugo Law Group (Offender) | |
File Number: | SCC 40 of 2021 |
LOUKAS-KARLSSON J:
Introduction
On 2 September 2021, Stephen Porter (the offender) was arraigned and entered pleas of guilty to the following offences:
(a) Count 1: Use child under 12 years of age to produce child exploitation material, contrary to s 64(1) of the Crimes Act 1900 (ACT) (Crimes Act). Count 1 is in respect of the victim Alexander Goodwin (a pseudonym).
(b) Count 2: Engage in a sexual relationship with a child under special care, contrary to s 56(1) of the Crimes Act. Count 2 is in respect of the victim Wesley Mason (a pseudonym).
(c) Count 3: Engage in conduct with a young person with the intention of making it more likely that the young person would commit or take part in an act of a sexual nature (grooming), contrary to s 66(1)(b) of the Crimes Act. Count 3 is in respect of the victim Riley Priestley (a pseudonym).
(d) Count 4: Possess child exploitation material, contrary to s 65(1) of the Crimes Act.
Pursuant to s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the victims have all been anonymised by the substitution of different names in this judgment. The pseudonyms are as set out above. The key to the anonymisation is contained in a schedule to these reasons, which will be provided to the parties, kept on the court file, and not published on the internet.
Notwithstanding his plea of guilty, in relation to count 2, the offender contests the facts in relation to the sexual relationship with a child, Wesley Mason, under special care. That matter was listed for a disputed facts hearing which commenced before the Court on 28 October 2021.
There are no factual disputes in respect of the remaining counts pertaining to the other victims, namely Alexander Goodwin and Riley Priestley. This judgment will refer to Wesley Mason as the complainant in line with the parties’ submissions, notwithstanding that the offender has pleaded guilty. This is in light of the disputed factual matters. The most significant areas of factual dispute are the number of occasions in which the offender engaged in sexual activity with the complainant, and the number of times the offender and the complainant engaged in penile-anal intercourse. These are not the only areas of factual dispute.
The prosecution contends that the offender engaged in sexual activity with the complainant between 35 and 45 times. The offender contends that sexual activity occurred between 14 and 15 times.
In relation to the number of times the offender and the complainant engaged in penile-anal penetration, the prosecution contends that it occurred on every occasion of sexual activity after the first such occasion, whereas the offender contends that it occurred on two occasions only.
Disputed Facts Hearing
The offender’s plea of guilty in relation to the sexual relationship with a child under special care admits only those matters which are the essence of the charge: see R v O’Neill [1979] 2 NSWLR 582 at [588] and Duffy v The Queen [2009] NSWCCA 304 at [21].
Section 56 of the Crimes Act relevantly provides:
56Sexual relationship with child or young person under special care
(1)A person commits an offence if the person—
(a)is an adult; and
(b)engages in a relationship with a child, or a young person under the special care of the adult, that involves more than 1 sexual act.
Maximum penalty: imprisonment for 25 years.
(2)For subsection (1) (b)—
(a)a relationship includes repeated contact, interaction, engagement or association, of a sexual nature or otherwise; and
(b)the relationship may have started, or started and ended, before the amendment day; and
(c)1 or more of the sexual acts may have occurred before the amendment day; and
(d)a sexual offence that could be charged and proved under section 66B (Course of conduct charge—child sexual offences) can be 1 of the sexual acts.
(3)For a person to be convicted of an offence against subsection (1), the trier of fact must unanimously be satisfied beyond reasonable doubt that the relationship existed.
(4)However, in a proceeding for an offence against subsection (1), there is no requirement for—
(a)the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or
(b)the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence; or
(c)if the trier of fact is a jury—all the members of the jury to agree on the same sexual acts involved in the relationship.
(5)In a proceeding for an offence against subsection (1)—
(a)the prosecution is required to allege the particulars of the period of the relationship; and
(b)without limiting the Criminal Code, section 64 (2) (Extension of offences if required geographical nexus exists), a geographical nexus exists for this offence if—
(i)any part of the relationship was engaged in inside the ACT; or
(ii)at least 1 of the sexual acts occurred inside the ACT.
…
An Agreed Statement of Facts was tendered during the Disputed Facts Hearing and became Exhibit 3. That document includes the following relevant agreed facts:
(a) The offending occurred between 1 September 2015 and 31 September 2018;
(b) The offending occurred while the complainant was between 12 years and 15 years of age.
Counsel for the prosecution submitted that the factual dispute is significant in terms of the impact that it will have on sentence considering the length and nature of the relationship, as well as the nature of the sexual acts within that relationship. Both of those matters, it was submitted, are critical factors in assessing the objective seriousness of the offending.
Evidence of the complainant
The complainant’s evidence in chief was given by way of a recorded Evidence-In-Chief Interview (EICI) that he participated in on 19 July 2020. In preparation for the EICI, the complainant produced a typed document titled “Sequence of Events”. That document was tendered and formed Exhibit 5.
The complainant gave evidence that, in the summer of 2015, when he was between the ages of 12 and 13, that the offender drove the complainant home after a training session. The offender had been training the complainant privately at this point for approximately a year.
While driving back to the complainant’s house the topic of the offender’s past relationships arose. The complainant asked the offender why he was single and why he lived on his own. The offender told the complainant that although he had a girlfriend in the past, he was not attracted to her, or to women in general.
The offender told the complainant that he was not a homosexual. When asked by the complainant what he liked, the offender said “well, I like you”. The complainant froze, was very uncomfortable and confused. The offender told the complainant that he could not tell his parents or else the offender would get into trouble.
The complainant gave evidence that it was not too long after the conversation in the car that the sexual offending occurred. During this period, the offender told the complainant about how he used to make other players he developed “feel good”.
The complainant gave evidence that following a training session, the offender and the complainant went back to the offender’s residence. Both the complainant and the offender used the swimming pool. After swimming, the complainant showered and played the Xbox game “Rocket League”, and a boardgame with the offender. The complainant noticed that the offender was staring at the complainant. The offender and the complainant began a conversation regarding how the offender had made other players “feel good”, including Caleb Parker (a pseudonym). Caleb was an AFL player and one of the complainant’s idols. The offender told the complainant that he hoped that one day he would be able to do that with the complainant. The complainant felt uncomfortable. The offender kept talking and the complainant said “yeah, okay. Well, yeah, all right. Just, yeah, whatever”. The offender placed his arm around the complainant’s shoulder and walked the complainant to the offender’s bedroom. The offender told the complainant “you’re not going to regret this”.
The complainant recalled that the offender performed oral sex on him and moved between sucking the complainant’s toes and his penis. The complainant recalled the offender stating that he had “finished” in his pants. After a time, the offender put his hand on the back of the complainant’s head and guided it towards his penis. The complainant performed oral sex on the offender. He gave evidence that they were “chopping and changing”, alternating between giving and receiving oral sex.
The offender opened his bedside drawer and removed lubricant and dildos. The offender inserted a dildo into the complainant’s anus. The complainant gave evidence that it hurt at first. The complainant recalled the offender saying to him “you have a beautiful cock”. The offender, whilst using the objects, was kneeling on the bed and masturbating himself. He then ejaculated into a tissue. After a while, the complainant had a shower and the offender drove him home. At no time did the complainant ejaculate. The complainant gave evidence that this incident lasted for a bit over an hour.
The complainant gave evidence that sexual activity occurred for a second time approximately a week later, after the offender and the complainant returned to the offender’s home following a training session.
Upon arriving at the offender’s house, the complainant followed the offender into his bedroom. The offender inserted a dildo into the complainant’s anus before penetrating the complainant’s anus with his erect penis. The offender was not wearing a condom. The intercourse lasted for approximately five minutes, after which the offender returned to using dildos to penetrate the complainant. Whilst doing so, the offender performed oral sex on the complainant. The offender ejaculated into a tissue by masturbating himself.
After he had ejaculated, the offender again performed oral sex on the complainant and became upset and frustrated that the complainant could not ejaculate. The complainant gave evidence that the offender showed him heterosexual pornography, depicting adults, on a tablet to help the complainant ejaculate. The offender continued to perform oral sex on the complainant. The complainant gave evidence that the offender was adamant that the complainant ejaculate into his mouth. At some point, the offender inhaled vapour from a leather cleaner bottle. The offender gave the bottle to the complainant who also inhaled the substance.
Following the sexual activity, the offender and the complainant showered separately before the offender drove the complainant home.
The complainant gave evidence that following the offender into his bedroom after training to commence sexual activity became “a thing I just did”. The complainant stated that the offender would use the dildos every now and then but that it was “more of him using himself, rather than the dildos”. Further, the offender inserting his penis into the complainant’s anus became the “new normal”, as in, that was what the offender did every time sexual activity occurred (Q620A). The complainant stated that offender would anally penetrate the complainant for a few minutes at a time, as the complainant did not like that activity at all.
The complainant recalled that he spent his 14th birthday with the offender and that they played tennis before returning to the offender’s residence. The offender performed oral sex on the complainant, before penetrating the complainant with a “50 Shades Darker” dildo. The offender lubricated his erect penis and inserted it, without a condom, into the complainant’s anus. After engaging in penile-anal intercourse with the complainant, the offender took a fake plastic vagina that he had purchased and used it to masturbate the complainant’s penis.
The complainant recalled a further specific occasion where the offender ejaculated into his anus while spending the night at the complainant’s house. The complainant gave evidence that this occurred a few years after the first incident, when he was maybe 14 or 15 years old. The complainant gave evidence that the offender, on this occasion, spent a longer time than usual penetrating his anus. He gave evidence that the offender thrust faster and aggressively before ejaculating into the complainant’s anus. The offender was not wearing a condom.
The complainant gave evidence that the offender would occasionally come to the complainant’s house for dinner and board games. The offender would sometimes spend the night at the complainant’s house. He would sleep on the complainant’s bed and the complainant would sleep on a trundle bed in the same room. The offender would bring a toiletry bag with him that contained, amongst other things, a toothbrush, lubricant, and a small dildo.
The complainant gave evidence that he anally penetrated the offender on maybe three occasions, twice at the offender’s house, and once at the complainant’s house. It was not something that occurred regularly as the complainant did not like doing that.
The complainant gave evidence that there were further occasions when the offender engaged in sexual activity with him. The complainant “guesstimated” that over the three-year period, sexual activity would have occurred “over thirty-five [times], but now I’m thinking it would have to be more, probably about forty-five times. It happened – it happened a lot”.
Other than the specific instances that the complainant could recall, the complainant gave evidence that: sexual activity occurred when the offender would spend the night at the complainant’s house, and following training sessions at the offender’s house; during sexual activity the offender would never wear a condom; the offender would ejaculate on the complainant or in a tissue; the offender showed the complainant heterosexual pornography “quite a few times”; and the offender would show the complainant the different dildos and lubricants that he had and describe how he used them on other football players he coached.
The complainant gave evidence that the offender always “put” the decision on the complainant as to whether he wanted to do something or not. The offender would tell the complainant that he hoped the complainant would say yes or that it was okay. The complainant gave evidence that he felt pressured and uncomfortable and would end up saying “yeah, okay”. The complainant said that he never asked the offender to stop, but that sometimes he would pull away and the offender would move on to a different sexual activity. The complainant gave evidence that, at the start of the sexual “relationship”, it was more about what the offender could do for the complainant but that, during the events, the offender would ask the complainant “can you do this for me?” or “it would be pretty cool if you could do this”.
The complainant gave evidence that the trainings were not a set routine but occurred “whenever”. Sometimes they would happen a couple of times a week and training would increase during school holidays. The offender would pick the complainant up from his house and take the complainant to the oval, the gym, or wherever training was occurring that day. A lot of the time, the complainant would go to the offender’s house to train. The sexual activity occurred pretty frequently but would not occur every time the complainant went over to the offender’s house. The complainant gave evidence that most of the activity at the offender’s house occurred when the complainant was between 13 and 14.
The complainant gave evidence that one night, when the complainant was 15, the offender started massaging and touching the complainant. The complainant, instead of staying still as he normally would, rolled away. The offender left him alone. The offender tried once more, on another date, and the complainant again rolled away. After this, the offender never again tried to initiate sexual activity. The offender stopped spending the night at the complainant’s house after the two rebuffs occurred.
Cross-examination
The complainant agreed that, from December 2014 to early 2020, he lived in a relatively small house in Curtin. The complainant described the different bedrooms, who slept where, and agreed there was only one bathroom in the house. He agreed that if someone stood at his bedroom window, they would be able to see into the concrete landing that led to the backyard. The complainant agreed that his stepfather’s study was in the garage in the backyard, and that his stepfather often frequented the study at night.
The complainant agreed that he could hear, if he was in his bedroom, when people were moving around the house, though he stated that he could not hear them in all areas of the house. He agreed that you could hear people walking up and down the hallway with the door open, and that you would more likely than not hear with the door closed. The complainant agreed that if his stepfather went out the back door of the house to his studio at night that he would hear this occur.
The complainant disagreed that his bedroom door was often open when the offender spent the night and slept in his bedroom, saying that it was mainly closed. He agreed that the offender mostly stayed over at the family house during the summer months.
The complainant disagreed that pre-season for Australian Rules Football started in March of each year stating that for himself, personally, training began before Christmas. He agreed that training with the team would commence closer to March and that the football season continues until late September.
The complainant disagreed that he was 12 years of age when he first met the offender, stating that he was 11 and turned 12 shortly after. The complainant gave evidence that it would have been a matter of weeks after having met the offender that he and the offender commenced training. He agreed that the offender trained him the whole of the year that commenced January 2015.
The complainant agreed that between March and the end of September 2015, and March and September 2016, that the offender coached two football teams simultaneously.
The complainant agreed that his contact with the offender in 2015, in a coaching sense, was confined to the months before the start of the football playing season, with some further contact after the season concluded at the end of September.
The complainant disagreed that he did not have a lot of direct contact with the offender during that 2015 playing period. He agreed that his main contact with the offender in 2015 and 2016 was outside of the playing season, and that he mostly saw the offender during his annual summer vacation.
The complainant agreed that he missed most of the 2016 season due to suffering from a leg injury, and that this limited the amount of training he undertook that year. He disagreed that, because of those circumstances, he saw less of the offender. The complainant gave evidence that they continued to train together in 2016 with ongoing recovery.
The complainant agreed that during the football season the offender would not come to the complainant’s house very often.
The complainant agreed that when the offender commenced training him, they engaged in training activities which appeared relevant to his football career for at least 12 months. He agreed that even throughout the period of time that the sexual relationship occurred that they continued to engage in serious training activities. The complainant agreed that the offender spent a lot of time appearing to genuinely attempt to contribute to his development as a football player apart from the inappropriate relationship.
The complainant agreed that for the first 12 months after the offender became his de facto coach that nothing sexual occurred between them. The complainant agreed that he and the offender became friends and that, in addition to the training activities, they engaged in recreational activities such as slot card racing and playing boardgames.
The complainant agreed that he turned 12 in April of 2015 and that, after he turned 12 and on a Saturday, he went with his family and the offender to the movies to see “Jurassic World”. The complainant could not remember if, after seeing the movie, the offender spent the night at the complainant’s home for the first time. He agreed that nothing sexual happened following this movie.
The complainant agreed that on one occasion he went to see a movie with his family and the offender, where the film broke and they received a refund. The complainant said that it was possible that this movie was “Mission Impossible 5” but could not recall. The complainant agreed that, following this movie, nothing sexual occurred.
The complainant remembered attending the offender’s house, with his family, to watch the AFL Grand Final between Hawthorn and West Coast Eagles. He remembered the offender coming, the next day, to the complainant’s house to watch the NRL Grand Final. The complainant stated that it was very likely that the offender spent the night on that occasion. He could not recall whether any sexual activity occurred that night stating, “I can’t recall any, no, but that’s not to say it didn’t happen; I just can’t remember that far back”.
The complainant agreed that he saw the James Bond movie “Spectre” with his family and the offender. The complainant gave evidence that he could not say for sure if the offender spent that night at his house or whether anything sexual occurred.
The complainant said that, while he couldn’t say for sure, it “sound[ed] about right” that the first occasion of sexual contact occurred between late November 2015 or December 2015. The complainant agreed that the occasion that he played a video game called “Rocket League” with the offender was the first occasion where there was sexual contact. The complainant could not recall if the next occasion, after that day, was New Years Eve of December 2015.
The complainant could recall that the offender stayed over at his house on New Years Eve of 2015. The complainant disagreed that no sexual contact occurred between the two of them on that occasion. The complainant thought that the sexual contact was, on that occasion, limited to “blow jobs” and “hand jobs”. Later, the complainant agreed that he was guessing, or speculating, about that sexual contact having occurred on that date. The complainant stated that it was hard for him to recall specific dates and times.
The complainant could not recall if he next saw the offender on 1 January 2016. The complainant could recall training with the offender and a man, [XT], at Lyneham Oval, although he did not recall what the specific date was. He recalled it was the same day they engaged in the slot car activity at Mitchell. The complainant could not recall whether the offender on that date, suggested to the complainant as being 6 January 2016, spent the night at the complainant’s house.
While the complainant could not recall the date, he had a clear recollection of the training practice with [XT], the slot car racing, and the offender spending the night, all occurring on the same day. The complainant gave evidence that he had a clear recollection of sexual interaction with the offender on that day. The complainant gave evidence that the sexual activity “would have been hand jobs, blow jobs. I think there – at that stage I think there was anal. I did not penetrate him at that point. That hadn’t started yet. Yes, so I could say hand jobs, blow jobs, anal”.
The complainant disagreed that the sexual activity on that date occurred at the offender’s house. He disagreed that this was the occasion where he followed the offender into his bedroom, stating that incident occurred before this day.
The complainant agreed that he went to see “Star Wars: The Force Awakens” with his family and the offender. He could not recall the specific date. He disagreed that afterwards the offender came back to his house for dinner stating that the offender left from the cinema. The complainant disagreed that the offender spent the night at the complainant’s house on that occasion. He could not recall if any sexual activity occurred on the day that he saw “Star Wars: The Force Awakens”.
The complainant agreed that after he rebuffed the offender on two occasions that the offender never again attempted to engage in sexual activity with him. The complainant agreed that, after that time, the offender spend Christmas and New Years in December 2018 and December 2019 with the complainant’s family. The complainant could not recall if the offender watched the AFL Grand Final with the complainant and his family in September 2019.
The complainant agreed he and the offender continued to do activities together such as playing tennis and going to the movies after the cessation of sexual contact. He could not recall if they had kicked a football or engaged in weight training following the period of sexual activity. He agreed that he attended a summer training session at Ainslie Football Club and agreed that could have been in November of 2019. He agreed that he had contact with the offender up until approximately March of 2020.
The complainant disagreed that the offender was always gentle when he “dealt with” the complainant. The complainant agreed that he had told the police that “he always said it was up to me”.
The complainant agreed that once he indicated to the offender that he did not want to interact with him sexually, that the offender did not force himself upon the complainant. The complainant agreed that at no stage did the offender ever threaten him. The complainant agreed that after he had rebuffed the offender’s sexual advances, that the offender attempted to maintain a friendly relationship with the complainant.
The complainant disagreed that the first occasion of anal intercourse occurred when he was about 13 years and 9 months of age, stating that he would have been younger than that. He agreed that he could be mistaken about that.
The complainant agreed that the first occasion of anal intercourse occurred at the offender’s house, he could not say for sure when the next occasion occurred but stated that it was a short period of time after. The complainant said he believed it to be correct that, on that second occasion, the offender encouraged him to penetrate the offender’s anus with his penis. The complainant agreed that this was not something that he wanted to do, or that he found enjoyable.
The complainant agreed that, on the second occasion, the offender stayed the night at the complainant’s home but disagreed that nothing sexual happened over night. The complainant said that “blow jobs, anal, hand jobs” occurred that night, and that the offender penetrated the complainant.
The complainant agreed that he made it clear to the offender that anal intercourse, where the complainant was the penetrating partner, was not something that he enjoyed. The complainant stated that it was not true that he did not anally penetrate the offender again thereafter.
The complainant agreed that there was a conversation that led to further penetration where the offender asked the complainant to “fuck him in the arse”. The complainant agreed that he did not tell the police about that conversation and stated that it did not come to mind at the time. The complainant denied that he had just recalled that conversation stating that it was in his memory for quite some time.
The complainant stated that he could not recall how many times he went to the offender’s house after his 14th birthday, but that it could be around 25 times. The complainant was asked if that is what he meant to convey to police when he said, “because I really didn’t go over there that much after that”. The complainant agreed that it was, and that he was not inventing his answers.
The complainant stated that he could not say if the offender ejaculated into his anus on 11 January 2017. The complainant disagreed that after the first occasion of anal intercourse, where the offender penetrated the complainant, that the offender did not do that act again. The complainant disagreed that, at no stage, did the offender ejaculate into the complainant’s anus.
The complainant gave evidence that after the offender ejaculated in his anus that the offender gave the complainant a blow job, until the complainant ejaculated, before they went to sleep. The complainant gave evidence that they did not speak during this incident.
The complainant disagreed that there were only ever two occasions upon which anal intercourse occurred, one where the offender was the active party and one where the complainant was the active party. The complainant disagreed that the activity did not happen again because he expressed a disinclination to be involved in that activity.
The complainant agreed that he could not recall the last occasion of sexual activity with the offender, and that he could not recall how many times sexual activity occurred.
The complainant disagreed that he made a guess as to how many times sexual activity occurred, saying that it was a “guesstimation” based on how old he was at the time, how many years he knew the offender, how many years he knew the offender after the offending began, the amount of opportunities the offender had to abuse him, and parts of the complainant’s memory which, through this questioning, came to his mind of different specific events.
The complainant agreed that, if there was any sexual contact between him and the offender at the complainant’s house that it had to be done very silently. He agreed that, if the offender showed him material on the offender’s phone that the offender would turn the sound down so people in the house would not be disturbed, though the complainant disagreed that this was because, in that particular house, any sort of noise could be readily heard throughout the house.
The complaint disagreed that the only discussion he had with the offender regarding Caleb Parker was regarding how the offender had assisted him with football. The complainant disagreed that he was embellishing his story when he told police that the offender had told him of his “sexual exploits” with Caleb Parker.
Statement of the complainant’s mother
The prosecution tendered a statement from the complainant’s mother.
The complainant’s mother met the offender in 2014. She had seen the offender around the Ainslie Football Club and knew that he had taken an interest in her son. The complainant’s mother and her partner, the complainant’s stepfather, met with the offender who stated that he wished to coach the complainant privately for his development, and that he had done this before.
A short time later, the complainant’s mother and the complainant’s stepfather agreed to accept the offender’s offer to coach the complainant who, at the time, would have been 11 years old. The complainant’s mother stated that, by 14 October 2014, they had allowed the one-on-one coaching to commence. The complainant’s stepfather would attend those sessions to supervise.
The complainant’s mother stated that she went with the complainant’s stepfather and the complainant to the offender’s house on 30 November 2014. She believes that this is the first time they attended the offender’s home. The complainant’s mother described the offender’s home which contained pinball machines, pool tables, pop culture/movie characters, games, and football merchandise and memorabilia.
The complainant’s mother gave evidence that she and the complainant’s stepfather developed a friendship with the offender, who would come over for dinner and boardgames. The offender would bring beer and wine and drink heavily, and they would offer for the offender to spend the night to save him from driving home. The complainant’s mother gave evidence that this was a weekly occurrence for a few months at a time. Sometimes, she stated, they would not see the offender for a few weeks, however, she was aware that during this time the offender would be in contact with the complainant via phone. They spent Christmas together with the offender from 2016-2019. The offender came to the complainant’s birthdays from when he was 12 to 16 years of age.
The complainant’s mother gave evidence that on 4 October 2015, they bought the complainant a new bed which came with a trundle bed that was stored underneath when not in use. The complainant’s mother believed that, from this point forward, the offender would stay over if he had too much to drink at dinner. The complainant’s mother stated that they allowed the offender to sleep in the complainant’s bed and the complainant would sleep on the trundle bed in the same room. They asked that the door remained open, but the complainant’s mother recalled times when it was closed.
The complainant’s mother gave evidence that the complainant developed a knee injury in January or February of 2016. The complainant went through, at this time, a noticeable personality change.
The complainant’s mother’s evidence was that after their training sessions, the complainant and the offender would go to the offender’s house and “muck around” in the pool. The complainant told his mother that he would shower afterwards because he had a reaction to the chlorine. The complainant talked about the body wash that the offender had.
The complainant’s mother stated that she had been to the offender’s house approximately 10 times. She gave evidence that she had never seen anyone enter the offender’s room. The complainant, she said, would often describe the offender’s room to her, including that the offender had an ensuite bathroom. The complainant’s mother recalled that the offender’s bedroom door was mostly shut.
The complainant’s mother gave evidence that, in September 2019, then aged 16, the complainant bought a new bed, as his bed frame was broken. The complainant was not forthcoming as to how the bed broke. Later, the complainant told the complainant’s mother that the offending was what caused his bed, and his trundle bed, to break.
On 6 June 2020, the complainant, then aged 17, with the aid of his church pastor, told the complainant’s mother and the complainant’s stepfather what occurred between him and the offender. Police then attended.
The complainant told the complainant’s mother that the offender had said that he would go to jail if the complainant said anything.
The complainant told the police, in front of the complainant’s mother, that the offending occurred roughly over a three-year period, that nothing had happened over the last couple of years, that the offender “had tried but [that the complainant] ignored the advances” and that “sometimes it was happening every week”.
Statement of the complainant’s stepfather
The prosecution tendered a statement from the complainant’s stepfather.
The complainant’s stepfather has been in a relationship with the complainant’s mother since the complainant was 2 years old.
Due to the complainant’s involvement in the Ainslie Football Club, the complainant’s stepfather became involved in assisting with club administration and as a team manager. In August 2014, when the complainant was 11, the complainant’s stepfather met the offender at one of the complainant’s football games.
Following the game, the offender approached the complainant’s stepfather and the complainant’s mother and spoke about the complainant’s football talent. The offender offered to provide free training with the complainant.
Initially, the offender would meet the complainant at the Ainslie Football Club before his regular team training sessions. During the first few sessions the complainant’s stepfather or the complainant’s mother would drop the complainant off and sometimes stay to watch. Following this, the offender would arrange for private training sessions at Hughes oval or at various fitness centres in the ACT. This was separate from his regular team training sessions and was one-on-one with the offender.
During the AFL season, the offender would pick the complainant up and take him to play tennis, or to do other activities. He would have the complainant over to his house to swim in his pool. The complainant’s stepfather and the complainant’s mother were comfortable with this arrangement at the time and trusted the complainant with the offender.
The complainant’s stepfather stated that, about the same time, the offender became a closer family friend. He would regularly attend the family home after private training sessions to have dinner. This because an almost informal way of paying the offender for the training sessions that he was having with the complainant.
During some of the nights that the offender stayed over, the offender would stay late into the night, drink too much, and be unable to drive home. On each of those occasions he would sleep in the only spare bed in the house, which was the trundle bed in the complainant’s room. The complainant would sleep in the same room at this time. The complainant’s stepfather estimated that the offender slept in the complainant’s bedroom approximately 20 to 30 times during the period that the complainant was 13 to 15 years old.
During the period that the offender was coaching the complainant, the complainant’s stepfather would notice that the complainant was out with the offender later than expected. The complainant’s stepfather would text the complainant who would respond that he was having a swim at the offender’s house. The complainant’s stepfather would question this as he was supposed to be doing AFL related training. Sometimes, this would be five hours after the offender had picked the complainant up for a training session.
When the complainant turned 15, the complainant’s stepfather noticed that he began losing interest in playing AFL. At about the same time, the complainant’s stepfather observed that the offender stopped coming over to their house as much and, if he did come over, he would not stay the night. At this time, the complainant became interested in other sports and the private coaching sessions he had with the offender became less regular.
In October 2015, the complainant’s stepfather recalled that the complainant had broken his bed and the trundle bed that was stored underneath. The complainant’s stepfather questioned the offender as to how he managed to do this but did not get a straight answer at the time.
When the complainant was 16, he would still occasionally meet with the offender. They would play tennis and the offender would visit occasionally and talk about AFL.
Between Thursday, 4 June 2020 and Friday, 5 June 2020, the complainant’s stepfather and the complainant went on an overnight trip. On Saturday, 6 June 2020, the complainant’s stepfather woke up late in the morning and saw that the complainant had left the house. The complainant returned sometime later with his youth pastor.
The complainant’s stepfather stated that the complainant told him, and the complainant’s mother, that he had been sexually interfered with from the time he was 12 until he was 15. Later that day, the complainant’s stepfather asked the complainant if the bed broke during a sexual encounter with the offender. The complainant agreed that it had and stated that is how the trundle bed broke as well. The complainant told the complainant’s stepfather that when he was 15, the offender made an advance on him, and he pushed him away. The complainant said it happened a second time and that, after that, the offender did not try again.
Evidence of the offender
The offender gave evidence on 18 November 2021.
The offender gave evidence that, in December 2014, he approached the complainant’s parents and offered to coach the complainant privately. He did this as he saw that the complainant had the most talent on the football team.
The private training commenced in 2015 and for the first 12 months of the private coaching, he was not the complainant’s full-time coach. The training occurred whenever the offender had a spare moment, which was about once every second weekend. During this period, the offender was the complainant’s “fitness coach”, “skills coach”, and “friend”. That relationship did not change over that initial 12-month period, except for the offender and the complainant becoming “closer as friends”.
The offender gave evidence that he became good friends with the complainant’s parents. It was not a pre-existing relationship prior to the commencement of training.
The offender gave evidence that the complainant had a discussion with him about matters of a sexual nature. Following that discussion, the offender initiated sexual activities with the complainant. The offender said he did this as he thought the complainant had the same sexuality as him, and he wanted to pursue that. He was given this impression due to their discussions surrounding things to do with sex.
The offender gave evidence that the turning point in his relationship with the complainant came during the summer of 2015 to 2016. During 2016, the offender was employed full-time. He would routinely take January off work. He gave evidence that he did not see the complainant much during the playing season in 2016. The playing season starts with pre-season training in February/March and concludes with the finals in September or early October.
During this period, the offender would attend training sessions four nights a week with the two teams that he coached. He would further attend games on the weekend, one in the morning, and the other in the early afternoon.
During 2016, the complainant had a leg injury. The complainant recovered by the end of the playing season and played during the grand final. The offender gave evidence that he did not see a lot of the complainant while he was injured. The offender and the complainant resumed training at the end of the 2016 playing season and into 2017.
The offender gave evidence that he first engaged in penile-anal intercourse with the complainant in January 2017. The offender recalled that, on that day, they returned to his house after completing training. They played a new Xbox game and went swimming. The offender gave evidence that he believed the complainant did not enjoy that activity.
He said that about a week, or a fortnight, after that first occasion of penile-anal intercourse, the complainant, at the offender’s encouragement, anally penetrated the offender. This incident occurred at the offender’s house. The offender gave evidence that the complainant did not want to continue with that activity and told the offender that he did not enjoy it.
The offender gave evidence that, apart from the above two occasions, penile-anal intercourse did not occur. He denied that he ejaculated inside the complainant.
The offender denied ever having penile-anal intercourse at the complainant’s home. The offender denied that penile-anal intercourse was something that continued and that happened all the time. The offender stated that he did not persist with penile-anal intercourse as he was aware that the complainant did not want to do that activity.
The offender gave evidence that, at the time, he was very close friends with the complainant. The offender stated that the complainant “felt like he was my little brother”.
Excluding the penile-anal intercourse, the offender gave evidence that he accepted the general description of the sexual activities that the complainant gave to the police.
The offender gave evidence that he stayed over at the complainant’s family home which was a “very small house”. When the offender stayed over, he would sleep on a trundle bed in the complainant’s bedroom. He did not always engage in sexual activity with the complainant when he stayed at the complainant’s home.
The offender stated that the door to the complainant’s bedroom was mostly kept open as the room was small and it became stuffy and unbearable if the door was shut during the summer, when the offender mostly stayed over.
The offender gave evidence that the complainant’s stepfather would sleep during the day and stay up for basically the entire night. The offender gave evidence that the complainant’s stepfather would watch movies and go his studio to collect items. The offender stated that it was quite noisy and that he could hear activity.
The offender gave evidence that, before he engaged in the first occasion of penile-anal intercourse with the complainant, they had engaged in sexual activity about four or five times. The majority of times the activity took place at the offender’s house, and, on one occasion, the activity occurred at the complainant’s house.
The offender gave evidence that he recalled being rebuffed by the complainant on one occasion in September of 2018. He accepted the complainant’s recollection of events in relation to that incident. The offender stated that, after he was rebuffed, he never again attempted to engage in sexual activity with the complainant. The offender stated that the activity stopped as the complainant made him aware that he did not want to do the activity and, as he cared for him, he wanted to do the right thing.
The offender gave evidence that he continued to see the complainant, and the complainant’s parents, after he was rebuffed. They watched AFL Grand Final together, went to the movies, and played boardgames. The offender’s family and the complainant’s family would spend Christmas together and they spent every Christmas together from 2015 to 2020.
The offender gave evidence that, following being rebuffed, he remained “very close, very good friends” with the complainant. He would make time for the complainant who would text the offender and ask if they could play tennis, kick the footy, or hang out. He gave evidence that they were always texting jokes back and forth. The offender gave evidence that this was the nature of their relationship until he received a visit from the police.
The complainant, in his EICI, referred to another boy, Alexander Goodwin (a pseudonym), who the offender coached for a number of years. The offender denied having sexual contact with Master Goodwin but accepted that he had taken a number of videos of him that betrayed a sexual interest. The offender stated that some of the videos were sexual, and others were made for their own fun and amusement. The offender agreed that he found Master Goodwin sexually attractive but denied acting on his attraction. The offender stated that it was clear to him that Master Goodwin had no interest in a sexual relationship, and that the offender cared for him.
The offender gave evidence in relation to another boy that he trained, Caleb Parker. The offender agreed that he found Master Parker sexually attractive, though he denied that he had a sexual relationship with him.
The offender denied ever telling the complainant that he had a sexual relationship with either Master Goodwin or Master Parker, stating that he had told the complainant that he trained them and how well they had done. The offender stated that when he told the complainant that he made Master Parker feel good about himself, that was in relation to football and his career.
The offender gave evidence that he had a very genuine interest in coaching the boys.
The offender gave evidence that, at the time of his offending, he knew that his actions were illegal and morally wrong. The offender stated that, at the time, he thought the complainant was consenting. He now understands the complainant was not in a position to consent.
The offender stated that in the period that he engaged in sexual activity with the complainant, he would have categorised their relationship as “the closest of friends”.
The offender gave evidence that he engaged in sexual activity with the complainant 14 or 15 times. He stated that he did not always engage in sexual activity with the complainant when he coached him during 2015, 2016, and 2017. He stated that he did not always engage in sexual activity when he stayed at the complainant’s house.
Cross-examination
The offender agreed that his sexual relationship with the complainant began towards the end of 2015. He stated that the last time they engaged in sexual activity was the Queen’s Birthday long weekend in 2018. That activity occurred at the complainant’s house.
He agreed that the sexual relationship finished after he was rebuffed by the complainant on two occasions around September 2018.
The offender agreed he saw a number of movies with the complainant and his family, including “Jurassic World” in July 2015, “Mission Impossible 5” in August 2015, and “Spectre” in November 2015.
The offender agreed that he saw “Star Wars: The Force Awakens” with the complainant in February 2016. The offender stated that the complainant was mistaken that they had seen a midnight showing of “Star Wars: The Force Awakens”, and that they had seen the midnight showing of “Star Wars: The Last Jedi”. He stated that they had seen a normal screening of “Star Wars: The Force Awakens” and had dinner.
The offender stated that specific dates were able to be put to the complainant, and he was able to recall specific dates, as he had spent a lot of time in preparation looking at documents such as text messages and Visa statements.
The offender agreed that he was sexually attracted to boys aged about 11 to 16. He disagreed that he used his position as a football coach to gain access to boys that he was sexually attracted to.
The offender agreed that he had pleaded guilty to a charge in relation to grooming a young boy, Riley Priestley (a pseudonym), whom he had coached between 30 November 2019 and 28 June 2020. I interpolate to note that the offence the subject of the disputed facts hearing, the engagement in a relationship with the complainant who was a child under special care, is particularised as having occurred between 1 September 2015 and 31 September 2018. While grooming Master Priestly, the offender had a number of WhatsApp conversations with a man living in the United Kingdom, Mr Terry Neil. In those conversations, the offender told Mr Neil that he was sexually interested in Master Priestly and that he hoped to end up in a sexual relationship with him.
In a text message to Mr Neil, the offender wrote “[the complainant] was most definitely one in 100 million”. The offender stated that this was a reference to how close he and the complainant had become over the years and that this was the first time that he had ever had a sexual experience with a young man.
The offender accepted that he enjoyed engaging in sexual activity with the complainant. He said that, at the time, he thought the complainant enjoyed it as well.
The offender stated that he predominantly saw the complainant during the summer “off season” training between 2015 and 2016, and that he did not really have a chance to see the complainant during the football season as he was coaching two teams. He said that, during the football season, he would watch the complainant play football when he could, but that this was difficult.
The offender denied working on recovery with the complainant when he was injured in the 2016 season. He gave evidence that there was a suggestion by the family that he had contributed to the injury by over-training the complainant. He was not involved in his recuperation, which was done by a physiotherapist.
The offender stated that the majority of his sexual contact with the complainant occurred during the two summer training sessions of 2015 to 2016 and 2016 to 2017. Outside of that period, it was infrequent.
The offender gave evidence that he did not do personal training with the complainant in the summer of 2017 to 2018. The offender agreed, however, that he remained close with the complainant’s family over that period. He agreed that he continued to stay at the complainant’s house, and that he engaged in sexual activity with the complainant on an estimated three occasions during that summer.
The offender gave evidence that he engaged in sexual activity with the complainant on the three occasions over the summer of 2017 to 2018, one further occasion on the Queen’s Birthday in June of 2018, and on another occasion between the summer of 2018 and June of 2018.
The offender gave evidence that he did not see the complainant as much over the 2018 to 2019 summer as he had previously.
The offender gave evidence that the first time he engaged in sexual activity with the complainant was in late 2015, following a private session at Club Lime in Mitchell. The offender and the complainant returned to the offender’s house before swimming and playing Xbox. The offender agreed that this is when he spoke to the complainant about making Master Parker feel good, though the defendant denied that this was a sexual discussion, instead stating that it was about football. The offender gave evidence that he performed oral sex on the complainant, ejaculated into his pants, and then directed the complainant to perform oral sex on him before penetrating the complainant with a dildo.
The offender gave evidence that he next engaged in sexual activity with the complainant about a week later following a training session. The offender and the complainant went to the offender’s house. The offender then penetrated the complainant’s anus with a sex toy. On this occasion, the complainant, at the offender’s invitation, inhaled leather cleaner. The offender stated that “[the complainant] had seen what it was, he was curious about what it was, and I made a very stupid and wrong decision”. The offender thought that the complainant would enjoy sniffing leather cleaner.
The offender denied that, following this, he lubricated his penis and had penile-anal intercourse with the complainant, before returning to the sex toys.
The offender agreed that he performed oral sex on the complainant, and that the complainant did not ejaculate. He denied becoming frustrated at this. The offender agreed that they watched heterosexual pornography whilst he continued to perform oral sex on the complainant. The offender agreed that eventually the complainant ejaculated into his mouth.
The offender disagreed that, following him having anally penetrated the complainant with his penis, that this became part of the regular sexual activity. The offender stated that he stopped using sex toys to anally penetrate the complainant after 2016/2017. Following that point the sexual contact, he said, was mainly oral sex.
The offender denied that his relationship with the complainant was mainly about his own needs, not the complainant’s. The offender stated, “I wrongly, stupidly at the time, I felt that [the complainant] – my feeling was that [the complainant] had a sexual interest in men – in males, homosexual sex, and I felt at the time that he was willing and enjoying what we were doing, but I understand that that’s not – – –”.
The offender gave evidence that his occupation, beyond football, was as a systems analyst, or a computer programmer. He completed Year 12, before he commenced a degree in journalism, which he ultimately did not complete. The prosecutor put it to the offender that it was not true that he did not understand, at the time that he was having sex with the complainant, that the complainant was not in a position to consent due to his age. The offender stated that he knew at the time that what he was doing was wrong, but that he felt that the complainant was interested and a willing participant.
The prosecutor took the offender to a further specific incident that the complainant recalled. The offender agreed that, in April 2017, he spent time with the complainant near his 14th birthday. The offender agreed April 2017 would have been during the football season.
The offender agreed that they played tennis before they returned to the offender’s house and engaged in sexual activity. The offender agreed that, on this occasion, the offender gave the complainant a fake vagina masturbation device to use. The offender accepted that he performed oral sex on the complainant before anally penetrating the complainant with a “Fifty Shades Darker” dildo. The offender denied lubricating and penetrating the complainant’s anus with his penis. The offender agreed that he masturbated the complainant’s penis with the fake vagina. The offender accepted the sexual activity occurred as stated by the complainant, excluding the penile-anal intercourse.
The offender agreed that there had been other occasions of sexual activity between him and the complainant between the second and third specific incidents that the complainant recalled.
The prosecutor cross-examined the offender in relation to a further specific incident where the offender spent the night at the complainant’s house and on the trundle bed.
The offender agreed that he took a toiletry bag with him when he stayed with the complainant, though he denied that this pack contained a small dildo and lubricant in the toiletry bag. The offender denied that he ever had penile-anal intercourse with the complainant while at the complainant’s house. He denied ever having ejaculated inside the complainant’s anus.
The offender stated that if they had any sexual contact that it would have been oral sex but not penile-anal sex.
The offender denied that there were two occasions where the complainant engaged in penile-anal penetration of the offender at the offender’s house. The offender stated that this occurred once in January 2017. He disagreed that there was a third occasion where the complainant engaged in penile-anal penetration of the offender while in the complainant’s house.
The offender denied that penile penetration of the complainant’s anus took place on every occasion of sexual activity, from the second occasion of sexual activity. The offender denied that it was a relationship based on his needs, stating that whatever he and the complainant did was decided between them, and he would leave it up to the complainant what they did. The complainant, he said, made it clear to him that he was not comfortable with penile-anal sex.
The offender accepted that he spent more time at the complainant’s home during the summers of 2015/2016 and 2016/2017, than the summer of 2017/2018. The offender stated that he visited the complainant’s house, during the first two summers, on approximately 10 occasions and that he would have stayed over about half of those times. The offender stated that it would have been a similar situation in the summer of 2017/2018, where he visited the house 10 to 12 times, and stayed over about half of those times.
The offender stated that sexual activity did not occur every time that he was with the complainant and that it occurred less than half the time when they were together.
The offender disagreed that the sexual activity was driven by him and stated that there were times where the activity was initiated by the complainant. Sexual activity would occur, he stated, if both he and the complainant were “seen to have had an interest in it occurring”.
The offender disagreed that, due to his strong attraction to the complainant, he would have been keen to engage in sexual activity with the complainant at every opportunity that was available to him. The offender stated that their relationship started off as a close friendship. He thought that if he allowed the complainant to be the person who decided when they had sex, then it would be fine, and that this is how they proceeded. The offender stated that he never forced the complainant to have sex with him and that he did not initiate sex on every occasion where he spent time with the complainant.
The offender disagreed that he was always wanting or desiring to have sex with the complainant. The offender disagreed that his evidence regarding his sexual relationship with the complainant, which occurred over three years, did not bear scrutiny with his evidence that he engaged in sexual activity with the complainant on 12 to 15 occasions.
The offender stated that the majority of the time that he saw the complainant was in the two summers that he trained him. He almost did not see the complainant at all in 2016 when the complainant was injured, nor in 2017 when the complainant moved to the Queanbeyan AFL team. The offender stated that in 2017 in particular he had his own coaching and took two months off to become a carer for his mother.
The offender disagreed that an estimate of 35 to 45 times over the three-year period is a more accurate estimation of the number of times the offender engaged in sexual activity with the complainant.
The offender was briefly re-examined.
He was taken to the text messages between himself and Mr Neil where Mr Neil wrote “let’s hope that lightening can strike twice”. The offender said that he understood Mr Neil referring to the offender becoming “close” to the complainant.
Record-of-Interview
The offender participated in a Record-of-Interview (ROI) with police on 27 June 2020. Although that ROI is not before me, the Agreed Statement of Facts (Exhibit 3) makes reference to a number of admissions and denials made by the offender during that interview. They are as follows:
(a) The offender had no photographs of the complainant at all other than, perhaps, one after training holding a football and otherwise fully clothed;
(b) The offender denied having a sexual relationship with the complainant;
(c) The offender denied having sexual intercourse with the complainant;
(d) The offender denied having used dildos or sex toys on the complainant;
(e) The offender denied ever showing the complainant pornographic material;
(f) The offender has known the complainant since he was 12 years of age;
(g) There is no reason why the complainant’s DNA would be on any of the sex toys located in the offender’s residence.
The denial of a sexual relationship or any sexual activity with the complainant in the ROI with police is in contradistinction to the evidence given by the offender in Court before me.
Consideration
It is uncontroversial that the offender’s plea of guilty admits those matters which are the essence of the charge, and only those matters.
Further, insofar as the prosecution seeks to establish a large number of sexual acts within the indictment period, and acts of a particular nature, those are matters of aggravation and it is for the prosecution to establish those facts beyond a reasonable doubt: see The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27]-[28]; Leach v The Queen [2007] HCA 3; 230 CLR 1 at [41]; and Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [64].
Submissions of the Offender
It is appropriate that I set out, in summary, the submissions of the offender and discuss the various submissions.
The offender disputes the total number of occasions upon which sexual acts occurred in the indictment period and states further that there were only ever two occasions of penile-anal intercourse, and that the offender desisted from that activity when the complainant expressed a disinclination to engage in such activity as either an active or passive partner.
To accept the prosecution’s assertions concerning the number and frequency of the sexual acts and the circumstances in which they occurred, it was submitted this Court must reject the offender’s evidence about those matters: Hinton v Brisbane [1992] ACTSC 42 at [20].
Counsel for the offender submitted that the Court would find that both directly and as a matter of necessary inference that the offence cannot be seen as falling at the upper end of the range of such “relationships” contemplated by s 56 of the Crimes Act. Counsel for the offender made submissions as to facts that he submitted the Court would find on the balance of probabilities in his favour at paragraph [13] of his written submissions.
This case concerns findings of additional criminal activity. It may be that the offender’s submission concerning the offender and establishing matters on the balance of probabilities misstates the onus and standard of proof. I do not need to need to resolve this question as I am satisfied on the higher standard that the prosecution has satisfied me that the complainant’s evidence is reliable beyond reasonable doubt. The onus is on the prosecution to prove their case beyond reasonable doubt and the prosecution, in my view, has done so.
Counsel for the offender submitted that the complainant confirmed, under cross-examination, that during the relevant period his family home:
o Was a small dwelling;
o That all three bedrooms opened off a single corridor;
o That the only toilet and bathroom facilities in the home were located off the same corridor;
o His stepfather’s bedroom was opposite his bedroom and adjacent to his mother’s bedroom;
o His stepfather kept unusual hours such that he was often up late at night and moving around the house, for instance, going to and from his studio or office located in the backyard garage;
o The backyard was accessible via the laundry and a set of stairs located off the kitchen and accessible via the corridor which led to the bedrooms; and
o That the rear stairs and the studio/office were visible from the window of the complainant’s bedroom which faced into the rear yard of the property.
Counsel submitted that, whether the door of the complainant’s bedroom was open or closed, it is highly likely that people walking up and down the hallway could be heard and, by necessary inference, that noises coming from the bedroom would be heard.
I interpolate to note that the complainant’s mother’s statement contained the following: “we would ask [for the] door to stay open but I can recall times when [the] door was closed”.
It was further submitted by the offender that the offender gave evidence to the effect that when he stayed over at the complainant’s home it was predominantly during his summer holiday period between December and February when the weather was hot, and when the door to the complainant’s bedroom was almost always open.
Given the evidence concerning the complainant’s home and the circumstances in which the offender stayed over, it was submitted that this Court could not accept, to the very high standard required, that penile-anal intercourse took place in the complainant’s bedroom and, as a corollary, that the complainant’s trundle bed was broken during an occasion on which the accused had anal intercourse with the complainant at his home and ejaculated into his rectum.
Counsel submitted that, apart from anything else, “the complainant’s evidence about that supposed occasion has a distinct air of unreality about it”. It seems inconsistent with the evidence, it was submitted, that the offender would turn the sound down on his phone whilst the two of them viewed video material in the bedroom, obviously for fear that they would be heard and discovered, and yet would engage in penile-anal intercourse resulting in the destruction of a bed.
Counsel for the offender submitted that the prosecution’s submissions consisted of a simplistic extraction of assertions from the complainant’s EICI, with an attempt to weave those assertions into a chronological narrative.
Counsel correctly submitted that the determination of the facts in this matter cannot be approached by taking the complaint to police at face value.
Counsel for the offender submitted that the prosecution stated that the fourth specific incident of sexual activity, which is said to have occurred somewhere in a two-year window, suddenly and without evidentiary support, is said to have occurred in the evening or early the next morning. Counsel submitted that this was presumably an attempt to deal with the evidence about the layout of the complainant’s house and the complainant’s stepfather’s nocturnal habits. I note that in their submissions in reply the prosecution accepted that there was no evidentiary basis for this time period, and that this was a mistake was made in the summarising the evidence, not by the complainant.
What is more significant, it was submitted by counsel for the offender, is the offender’s evidence that it was not on every occasion when he stayed over that sexual activity occurred. The complainant gave similar evidence.
In a similar vein, it was submitted, the reference to the complainant stating that “sometimes it was happening every week” is, in fact, misleading when linked with the prosecution’s commentary “over a roughly 3-year period” and loses all impact when viewed in light of the offender’s concession that there were times during the summer break periods and football pre-season that he was seeing the complainant more regularly.
When questioned about the occasion in October 2015 when the offender came to his home and they watched the NRL Grand Final, it was suggested that there was no sexual contact between the two of them. The complainant said that he could not recall any sexual contact on that occasion “but that’s not to say it didn’t happen, I just can’t remember that far back”. It was submitted by the offender that that answer was troubling in terms of the reliability of the complainant’s evidence.
It was submitted that earlier in the complainant’s cross-examination he agreed that there was a period of at least 12 months, after the offender commenced training him in which there was no sexual contact between the two of them. The complainant gave similar evidence to police in his EICI. The complainant told the police that he thought the first sexual contact occurred with the offender in 2016, not 2015.
The offender submitted that it follows that if those multiple answers are correct, which is consistent with the offender’s evidence, then the qualified answer advanced by the complainant “but that’s not to say it didn’t happen” is misleading, unreliable, and wrong.
It was submitted by the offender that in a “word-on-word” contest about the number of and frequency of sexual encounters, “matters of that ilk” point in the favour of the offender’s account, or at least, makes it difficult to reject his account and to accept the complainant’s account beyond a reasonable doubt. I disagree. In my view, it does not logically follow that the Court would reject the complainant’s overall account in light of that particular answer.
The evidence of the complainant that his bedroom door was mainly closed when the offender stayed over in the summer should be seen, it was submitted, in the same light. That evidence, it was submitted, does not sit well with the evidence of the complainant’s mother. I do not accept this submission, as previously discussed at [177], the complainant’s mother’s evidence was that they asked that his door stay open, but she could remember occasions when it was closed.
I also note that the complainant stated that he was sometimes shown pornographic material at his house “…on his phone. Yeah. But, like, [with] the volume down so the folks couldn’t hear”.”
Counsel submitted, this Court would find the complainant’s evidence lacking in detail and consisting largely of a repetition or incantation of the material which he composed in typescript (being Exhibit 5) before speaking to police on 19 June 2020. It was submitted by the offender that Exhibit 5 was at best a sparse account containing no reference to penile-anal intercourse and no reference to the number of occasions upon which there was any sexual contact between the two.
Reference was made to the complainant’s EICI, emphasising that he told police that he could remember the first and the second time that the offender engaged in sexual activity with him and that he could not remember the last time it happened. I interpolate to note that that was in the complainant’s initial recall. The complainant also gave further evidence in the EICI when prompted and recalled more occasions, for example, the fake vagina occasion.
When asked by police how often sexual activity occurred, the complainant gave evidence that “it wouldn’t happen every time when I went over there”. When asked in response, how often, the complainant referred to the offender coming to his house stating that “whenever he came over to stay, like, or came over to play board games, but he’d always stay, until I started saying no”.
In context, it was submitted, the complainant asserted to police that sexual activity, inclusive of penile-anal intercourse, occurred every time the offender stayed at his home. That evidence, it was submitted, is contradicted by his answers in cross-examination, and by other parts of his EICI. When asked by police specifically about other occasions, the complainant stated that each occasion after the first was vague in his memory.
The complainant stated in his EICI, “…his coming around to tea, like he used to do it all the time. So, yep, yep. And then sometimes he didn’t you know. And then I can’t remember when the first time we did it at my – my house…”. That answer, it was submitted, should be contrasted with the complainant’s evidence under cross-examination.
The offender referred to the following evidence. The complainant was asked, “were you guessing or speculating some minutes ago when you said, “all of the things mentioned in my statement occurred on 31 December 2015?””. The complainant answered yes.
The significance, it was submitted, of that passage of cross-examination is that the complainant told police that the two occasions he remembered with great clarity were the first and second occasion and it was on the second occasion the offender had penile-anal intercourse with him.
The complainant’s evidence about an alleged other occasion on which he was encouraged to, and did, anally penetrate the offender with his penis has about it, it was submitted, the “hallmarks of recent invention”, with the complainant asserting “he could recall verbatim a conversation in rough language” about which he had never told the police, despite the fact that he said it was something which had stuck in his memory quite firmly, but that he did not recall it at the time. Further, it was submitted, that this answer appears inconsistent with the complainant’s answer in his EICI in which he told police that he had anally penetrated the offender with his penis only once at the complainant’s house. In my view, in context this evidence does not possess the “hallmarks of recent invention”.
Counsel submitted that the complainant’s evidence about believing the offender kept things under his bed but adding “I haven’t looked, but I haven’t been under there” was unconvincing, and a mark of the care which ought to be exercised in accepting the complainant’s evidence at face value. The complainant said he had not meant to convey to police he had not seen things under the offender’s bed when he used the words “but I haven’t looked”. Rather, he said, he meant to convey “I haven’t moved things and looked under there and looked for things”. When it was put to the complainant that when he said “but I haven’t looked” he meant to convey that he had looked, the complainant disagreed. When the opposite proposition was advanced, that the words “but I haven’t looked” was meant to mean that he had in fact seen things under the bed, that proposition was also rejected by the complainant. In my view, nothing of significant forensic consequence turns on the offender’s submission in this regard.
When asked to explain the words, the complainant stated, “I was meaning to say that I have not actively gone under his bed and looked for things but there were times when I was in the room where I had seen things underneath his bed”.
The offender submitted that that degree of “semantic contortion” is a sound reason for the Court to be wary of accepting what the complainant told police or gave in cross-examination without very close scrutiny. I do not accept, in context, that the complainant’s evidence bore any degree of “semantic contortion”.
Counsel submitted that the evidence indicates that the contact between the offender and the complainant was largely confined to the AFL pre-season months, with a distinct falling off in contact during the football season of approximately March through to September. This is coupled, it was submitted, with the complainant’s evidence that after playing in the under 14’s, he did not see the offender so frequently as he, the complainant, had moved to a different football club and, further, that after his 14th birthday he did not go to the offender’s home that often.
When asked under cross-examination how many times he had gone to the offender’s home after his 14th birthday, the complainant stated that he could not say how many times “but then his evidence grew to more than 4 times; more than 6 times; then 10 times was around the ballpark but then “no more, more” then up to “could be 20 times” finally settling on “I would say about 25 times””.
This submission is in my view based on taking the evidence out of context. The precise extract of the transcript is as follows:
COUNSEL FOR THE OFFENDER: Do you agree or disagree that you were seeking to convey to the police by that answer that after your 14th birthday you did not often go to Mr Porter’s home?---Yes.
How many times do you say you went to his home after your 14th birthday?---I can’t say for certain.
Three or four or some larger number?--- I would say a larger number.
Well, on what basis would you say a larger number?---Based over the years that I knew him and how often I went over there, remembered being there.
What, do you have some recollection of going there for particular purposes after your 14th birthday?---Yes.
Was it four times?---More.
Six times?---More.
Ten times?---That’s probably around the ballpark. Maybe more. In fact, no, more. More.
Could it be 20 times?---Could be. Could be.
Might it be 30 times?---This is between – after the age of 14 – after my 14th birthday, yes?
That’s correct?---That’s correct. No, I would say about 25 times.
The complainant denied that he had no real idea of how many times he and the offender had some “sexual connection” over the period of the alleged offending. The complainant denied that he had simply guessed at a number, responding that he had “guesstimated”.
The passage of cross-examination in question, it was submitted by the offender, illustrates that the complainant had no difficulty understanding questions nor giving “evasive” answers thereto:
COUNSEL FOR THE OFFENDER: Do you see the policewoman asked you, “yeah”, if you were to guess, a guesstimate, how many times it occurred over that three-year period, do you reckon you could? Firstly, do you see that question?---Yes, I do.
Did you understand that the policewoman was inviting you to make a guess?---Yes.
And what you gave in answer was a guess?---No, it was – if you would read it, it was a guesstimation.
Well, what’s the difference between a guess and a guesstimation?---One has “estimation” on the end of it.
And how did you come to the guesstimated number?---By thinking how old I was and how many years I knew him and how many years after I first knew him that the offending started taking place, and also the amount of opportunities he had to abuse me.
The following extract was not included in the offender’s submission. The complainant went on immediately to say the following:
COUNSEL FOR THE OFFENDER: Right. And apart from - - - ?---And – and, sorry, also parts of my memory which through this questioning had come to my mind of different specific events.
Sorry, are you saying – let me see if I understand that answer – that in the course of police questioning you had recalled other events?---Yes.
And were they other events about which you told the police in detail or not?---I think there are a few, yes.
It was submitted by the offender that the variables and factors nominated by the complainant as a foundation for his estimate boiled down to the following: I knew him for about five years; the offending did not start for about a year after I met him; he had a large number of opportunities to abuse me. This simplistic characterisation by the offender’s counsel of the complainant’s evidence does not, in my view, accord with the evidence before me.
Those parameters, it was submitted by the offender, cannot elevate the complainant’s evidence that sexual activity occurred approximately 35 to 45 times beyond a “bald guess” when analysed in the context of his EICI, the answers already highlighted about two occasions that stood out in his memory, and the total lack of memory of the last occasion. I disagree. In my view, the complainant’s evidence taken in its proper context was not a “bald guess”.
In a global sense, it was submitted, “the Court should note that in order for police to extract from the complainant an account of the first occasion which he said was fixed firmly in his memory, the questioning started at Q27A with the police taking him back to the first occasion at Q52A; Q209A; Q221A and Q268A before finally getting to the asserted second occasion after one and a half hours of interview at Q580A”. The complainant described that second occasion as the “very next time it happened”.
Counsel for the offender submitted, in contrast to the complainant’s EICI, and the almost total absence of contextual matters placing the sexual acts in a date or occasion framework, it was clear the complainant accepted, without much hesitation, occasions and events which he could recall which were put to him on the instructions of the offender as occasions when either they had social interaction and no sexual contact or they had both social interaction and sexual contact.
It was submitted that the offender’s evidence, that penile-anal intercourse occurred on only two occasions, once when he was the active participant and once when the complainant was, “sits comfortably” with the complainant’s EICI, that he did not enjoy penile-anal intercourse, and his answer regarding subsequent occasions and the offender ejaculating.
Counsel for the offender submitted that the assertion of the offender ejaculating inside the complainant during penile-anal intercourse was a spontaneous utterance in the EICI and not in response to any question asked. It was submitted, if the complainant had such memory, then the time to mention it might have been in the long answer he gave where he referred to the offender ejaculating everywhere except “inside my [anus]”.
I interpolate to extract the full quote with the context from the complainant’s EICI below – the complainant does not state that the offender ejaculated everywhere except inside his [anus]:
Q651 And after about five minutes, what happened?
A Oh, then – then he – then he stopped and started using the dildo and things again. And, um, yeah – and then, um – and I can’t remember what exactly he used. He’s got different little sex toys and things like that. But, um, yeah, and then, you know, sort of went back to that, some point during the whole thing, um, different positions, but I can’t remember specifically the sequence, but, yeah, it was a lot of chopping and changing and other things. Yeah, yeah.
Q652 Yeah.
A But I remember the – yeah, that was the first time he did it. He did it for about five minutes and then it – you know, it was just something – like, it was just added to the other things we did.
Q653 Yeah.
A Yep, yep.
Q654 Yeah. Do you remember what happened after that? So he put his penis in your arse, used some other toys, other dildos. Yeah. What happened after – what happened after he took it out?
A Um, I think he just went back to giving me blow jobs, yeah.
Q655 Yep. And then did you finish? Did he finish?
A Um, he – yeah, he finished quite early on (indistinct). He finished into a tissue, um, at first, and then as the events got (indistinct) like, down in the track, I don’t know, he’d sometimes finish on me, um, like, on my chest or stomach or something, um, and then lick it off, like, that’s – yeah, um, yeah, that sort of thing, um, yeah, sometimes – sometimes that or he’d just finish into a tissue, um, yeah.
Q656 Yeah.
A I know at my place he finished into a tissue.
Q657 Yep. This time in particular do you remember if you finished?
A Yeah, I did.
Counsel for the offender submitted that, in his EICI, the complainant made it plain that although the offender asked the complainant to anally penetrate the offender, that was not something that they persevered with. The complainant stated:
He asked me to do the same to him, um, once or twice, and I did. But this wasn’t like a usual thing, um, I didn’t like doing that, so I did, um, and then, yeah, I just let him. I didn’t do that again, and he didn’t ask me to do that again, so that didn’t happen.
The next line from the complainant’s same answer is left out of the offender’s submissions: “So it’s like we tried things, and then – it was if he liked it, it was sort of added to the repertoire of things we did.”
Counsel submitted that, early in the complainant’s EICI the complainant stated that the offender left it up to the complainant. Further, counsel submitted that the complainant stated that the offender was very meticulous about inserting dildos into the complainant’s anus in terms of how much went in and when. The complainant gave evidence that the offender was slow on the first occasion of penile-anal intercourse.
That evidence, it was submitted, is more consistent with the offender’s account that because the complainant did not appear to enjoy penile-anal intercourse, because he found it difficult and expressed a disinclination to be the active participant, that was something that was not persisted with.
That view of matters, it was submitted, is substantially strengthened by the evidence concerning the way in which the sexual aspect of their relationship was brought to an end. This submission, in my view, ignores the change in age of the complainant.
The offender gave evidence that he coached Caleb Parker for approximately seven years, and Alexander Goodwin for five or six years. He accepted that he found both boys sexually attractive. He did not accept that he engaged in sexual relations with them. In relation to Master Goodwin, the offender stated that it was clear to him that he had no interest in that, and the offender “cared for” him.
It is clear, it was submitted, that police were aware of Master Goodwin and Master Parker early in their investigation. There is not suggestion of any sexual impropriety in relation towards either of them, it was submitted, other than Count 1 on the indictment, being the production of child exploitation material, in relation to Master Goodwin.
It was submitted by the offender that the significance of the offender’s long association with both young people and the absence of any sexual conduct involving them is threefold: it corroborates the evidence of the offender that he had a genuine interest in coaching and tends against any suggestion that his involvement in coaching was purely designed to further nefarious sexual intentions; the evidence supports the offender’s explanation that he did indulge in his fantasies in relation to the complainant as he felt the complainant had the same sexuality and wanted to pursue that; and it supports the proposition that the offender was not prepared to do things which he regarded as “against the wishes or inclinations of his young friends” and thus supports his denial of on-going and frequent penile-anal intercourse with the complainant. I am not persuaded that this evidence necessarily supports the denial of frequent penile-anal intercourse.
Counsel for the offender submitted that the offender’s evidence was given in a “forthright and impressive manner” and that there was no attempt to embellish or to put a favourable spin on his conduct. It was clear that the offender “had gone to some trouble” in his attempt to reconstruct the events of 2016 and 2017.
It was submitted by the offender that apart from the “telling acceptance” by the complainant of contextual facts and circumstances put to him in cross-examination that the offender clearly had a better and more detailed recollection than the complainant. I do not agree. I observed both the complainant and the offender carefully in giving evidence. In my view, that submission of the offender is not borne out.
The fact, it was submitted, that the offender continued to have significant social contact with the complainant and his parents after the occasion of the rebuff in September 2018, strongly supports the conclusion that his relationship was not based purely upon the satisfaction of the offender’s wants or needs as put to him in cross-examination. Further, it was submitted, the fact that the complainant and the offender continued to correspond by text message, and remained “very close, very good” friends, following the rebuff, speaks volumes in that regard. This submission, in my view, does not greatly assist this Court in determining the disputed facts. It does not, in my view, strongly support the conclusion contended for by the offender.
In relation to the offender’s denial of ongoing penile-anal intercourse and regular sexual interaction on almost every occasion that he stayed over at the complainant’s home, the Court would accept his evidence, it was submitted by the offender, as the house was small, the complainant’s room was not very big, and the room was hot and stuffy in the summer when the offender mostly stayed. The offender stated that the complainant’s stepfather was often awake for basically the whole night, would move around the house, and that noise was very easily heard. In my view, taking a realistic view of the evidence, this submission cannot be determinative of the issue before me. I note that there is a denial only in respect of penile-anal intercourse occurring at the complainant’s house (T117.5-24), not of other sexual activity.
The quality and reliability of the offender’s recollection, it was submitted by the offender, was helpfully highlighted by the cross-examination of the offender concerning the occasion upon which he went to the cinema with the complainant’s family on 4 February 2016.
It was put to the offender that the complainant’s recollection was to be preferred as the complainant denied that the family went to dinner after seeing the movie in question, stating that they had gone to a midnight session. The offender stated that was wrong and that, in fact, the family had agreed to go with him to see “Star Wars: The Force Awakens”. It was put by the prosecution to the offender that the movie was only shown once at midnight, being on the day of its first release in Australia, and the offender agreed with that. The offender explained that he went to see the movie with the family sometimes after it had been released, accepting that the midnight release had been on 16 December 2015.
It was submitted by the offender that the above matters are consistent with the offender’s evidence that the complainant’s family went with him, notwithstanding the fact that they had all already seen the movie. It is also consistent with the complainant’s evidence that they had all gone to see that particular movie on 4 February 2016, as was put to him in cross-examination.
The offender submitted that in the circumstances, the Court would conclude that the complainant was simply wrong about seeing the movie “Star Wars: The Force Awakens” at a midnight session, and that his memory was probably of seeing the next movie in the franchise, “Star Wars: The Last Jedi”, which the offender said was the one they saw at midnight.
The offender submitted that in a disputed facts hearing, where both the honesty of the complainant’s evidence and the reliability of that evidence is in issue, it was submitted that those matters of detail are important. In my view, the submission concerning the Star Wars detail is not of critical forensic significance, either as to honesty or reliability.
In relation to a WhatsApp exchange between the offender and his friend in the UK, Mr Terry Neil, the offender stated that the reference to the complainant being 1 in a 100 million, was in reference to how close he was with the complainant and how it was the first time he had ever had a sexual experience with a child. It was submitted that the truth and reliability of that assertion was borne out by the very terms of the exchange between the offender and Mr Neil and again, tends to add credence to the offender’s evidence. I am not persuaded that it adds any credence to the offender’s evidence.
It was submitted by the offender that when the prosecution pressed the offender in relation to the nature of his sexual interest in the complainant, and the quality of their relationship, the offender gave truthful answers to questions which many offenders in his position would no doubt find confronting or challenging and might seek to sidestep or answer in a self-serving fashion. For example, when it was put to the offender that he enjoyed the sexual activity with the complainant he answered “I did enjoy the sexual activity. Yes. At the time, I thought [the complainant] enjoyed it as well. I know that that’s - - -.”
Counsel for the offender quoted the offender’s answer and denial in relation to penile-anal intercourse becoming part of the menu of sexual activity that regularly occurred. Counsel further quoted the offender’s answer in relation to believing that the complainant had a sexual interest in men and that the offender thought that the complainant was willing and enjoying the activity. Eventually, it was submitted, in response to the suggestion that sexual activity took place on more occasions than the offender had conceded, the offender stated that he disagreed (T119.23-32).
Counsel submitted that the offender gave a logical and “easily accepted” account of the limited nature of his contact with the complainant during the period mentioned in the indictment (T120.6-14).
Conclusion
In my view, the complainant presented as an honest and impressive witness, who did his best to recall undoubtedly traumatic events from his childhood and who made appropriate concessions to propositions put to him by counsel for the offender.
For example, he agreed that he mainly saw the offender during the summer months, outside of the football playing season, and that it was mainly in the summer months that the offender stayed over at his family home. He also agreed that he was injured throughout the 2016 season, although he disputed that he saw less of the offender due to this, stating that he was involved in “ongoing recovery”.
Although he did not remember the exact dates, the complainant also agreed with counsel for the offender’s proposition that there were a number of occasions when the complainant and his family attended movies, and other events, with the offender.
In terms of the issues in dispute, counsel for the prosecution submitted that the complainant’s answers in cross-examination were consistent with his evidence-in-chief. I agree. This is particularly so, in terms of the numbers of occasions that the offender engaged in sexual activity with the complainant, and the number of occasions that sexual activity included penile-anal intercourse.
In terms of the number of times sexual activity took place between himself and the offender, the complainant maintained that his answer in his EICI was accurate (being approximately 35 to 45 times), explaining that he came to his “guesstimation” by considering factors such as how old he was at the time, and the number of opportunities the offender had to abuse him.
The complainant’s evidence, that penile-anal intercourse was part of the ongoing activity from the second time it occurred, and that the nature of the sexual activity revolved around what the offender, not what the complainant, wanted, is wholly consistent with the power imbalance that existed in this unlawful sexual relationship between the complainant and the offender.
The prosecution submitted that the offender gave untruthful evidence about his contact with the complainant so as to minimise the opportunities to engage in sexual activity to align with how many occasions the offender stated sexual activity occurred. In my view, there is force to this submission.
The offender, in his evidence, stated that the offender spent the night at the complainant’s house approximately 15 times over three consecutive summers.
In my view, the offender’s evidence as to how many times he stayed at the complainant’s house is an attempt to minimise the number of opportunities he had to engage in sexual activity. It is at odds with the undisputed evidence of the complainant’s stepfather that the offender slept at their house about 20 to 30 times.
Another example of the offender minimising contact with the complainant was his evidence that, after the complainant’s move to play AFL for Queanbeyan in 2017, he did not engage in any personal training with the complainant. This is at odds with, again, the evidence of the complainant’s stepfather, that the offender continued to have private training sessions with the complainant after his move to the Queanbeyan club.
The offender, in his evidence, stated that he had sex with the complainant about 14 or 15 times and that the majority of this activity occurred in the two periods of summer training (2015/2016 and 2016/2017). On his own evidence, the offender engaged in sexual activity with the complainant in the summer of 2017/2018 on at least three occasions, as well as on the Queen’s Birthday of 2018, and once in between (making five occasions total) (T99.27-36).
With the majority of the occasions occurring in the summers of 2015/2016 and 2016/2017, as well as the five occasions listed above, and other occasions stated by the offender during the course of the football seasons, counsel for the prosecution submitted that the complainant’s estimate of about 35 to 45 times is credible and realistic on the evidence. Again, there is forensic force to this submission.
Further, the undisputed evidence of the complainant’s mother is consistent with the complainant’s evidence. Similarly, it was submitted, the offender’s acceptance of the complainant’s general description of the sexual activity, including the regular and frequent use by the offender of dildos to penetrate the complainant’s anus, from the very first occasion, is consistent with the complainant’s evidence.
The complainant gave evidence that penile-anal intercourse was part of their ongoing activity from the second time that it occurred, and that the nature of their sexual activities revolved around what the offender wanted, not what the complainant wanted.
As stated earlier, the complainant’s evidence is wholly consistent with the power imbalance that exists in an unlawful sexual relationship between a young boy and a mature man, between the complainant and the offender.
In my view, the evidence supports the complainant’s version of events, that the offender engaged in sexual activity with him on at least 35 occasions and that each occasion, bar the first, involved penile-anal intercourse as part of the sexual activity engaged in thereafter (Q620A of the complainant’s EICI).
The breaking of the trundle bed in the complainant’s bedroom is consistent with the sexual activity that the complainant stated took place on multiple occasions in his bedroom. It is also consistent with the undisputed evidence of the complainant’s mother and stepfather, who note in their statements the breaking of the trundle bed.
It is not accurate to describe the complainant’s account of the sexual activity that occurred on his 14th birthday as “brief and generic” compared to the offender’s account.
It is not accurate to state that the complainant accepted in cross-examination that he and the offender went to see “The Force Awakens” on 4 February 2016. The complainant agreed that he saw this movie with the offender, but was consistent in his evidence that he was not sure of the date.
It is not accurate to describe the complainant’s evidence that sexual activity occurred every time the offender stayed at the complainant’s home in contrast to his answers in cross-examination. The complainant stated in his EICI that sexual activity occurred “Um, whenever he came over to stay, like, or came over to play board games” (Q758A). The use of the word “whenever” does not necessarily imply that the complainant was asserting that sexual activity occurred every time the offender stayed over, and should be read in context with his evidence (for example at Q594A Q620A, Q660A, Q737A and Q744A).
I note that the prosecution conceded that there is no evidential basis upon which to place the sexual activity that occurred in the complainant’s home as the “evening or early the next morning”. This was, however, an error of the summary of the complainant’s evidence and does not reflect on the court’s assessment of the complainant’s evidence.
There is no evidence from Caleb Parker. As referred to in the evidence, he was one of the complainant’s “idols”. In cross-examination it was put to the complainant that when police spoke to Caleb Parker he made no complaint of any sexual misconduct concerning the offender. I therefore cannot and do not make a finding whatsoever concerning the offender’s activities with Caleb Parker. There is no evidence.
Nevertheless, I am persuaded that before the first instance of sexual activity with the complainant, the offender discussed with the complainant how the offender had made Caleb Parker “feel good” about himself. The offender confirmed in cross-examination that this conversation had taken place but stated that the reference to making Caleb Parker “feel good” about himself was with regards “to his footy career and where he progressed to”. On the complainant’s evidence, the offender had said that to the complainant prior to the first occasion that the offender had engaged in activities of a sexual nature with the complainant. That is, referring to, or implying, having undertaken sexual activities with Caleb Parker (Q30A, Q223A, Q240A, Q248A, Q253A-Q257A). The complainant rejected in cross-examination that the reference to sexual activities was an embellishment (T80.25-30). I find beyond reasonable doubt that the reference to Caleb Parker prior to the first occasion was part of the sexual grooming the offender undertook of the complainant. I am satisfied beyond reasonable doubt of the complainant’s evidence in this regard, that is, that the offender referred to making Caleb Parker “feel good” and that the offender “hoped he could do the same” for the complainant, prior to walking the complainant to his bedroom.
As I observed at the outset, I found the complainant to be an impressive witness. His evidence was compelling. In my view, he gave truthful evidence and was not undermined in cross-examination as discussed above. I have grave reservations about the offender’s evidence. The impression that I gained from analysing his evidence in the context of all the evidence is that the offender is deceiving himself as to what occurred and attempting in that way to minimise his own actions. It should be noted that there is complete inconsistency between what the offender initially told the police and his evidence before me in court. Further there are significant inconsistencies referred to above between the evidence of the offender on the one hand and the evidence of the complainant’s mother and stepfather on the other.
I do not consider that there is a reasonable possibility that the offender’s recollection is correct as I do not accept the offender’s evidence for the reasons outlined above.
I am satisfied beyond reasonable doubt of the account given by the complainant of 35 to 45 occasions. For the purposes of this factfinding exercise, I propose to sentence on the basis that there were 35 occasions of sexual activity and that penile-anal penetration occurred after the first occasion of sexual activity, that is, from the second occasion. I have formed this view taking into account the complainant’s evidence concerning the “new normal” after the first occasion of penile-anal intercourse (Q620A of the complainant’s EICI).
I am satisfied beyond reasonable doubt that the complainant penetrated the offender’s anus with his penis on three occasions and the other occasions of penile-anal sexual intercourse involved the offender penetrating the complainant’s anus. I am also satisfied that on one occasion where the offender was penetrating the complainant’s anus at the complainant’s home, the offender ejaculated into the complainant’s anus, without the use of a condom.
It is important that I underline that the issue is not a choice between two inconsistent versions. In coming to my findings, I have taken into account Liberato v The Queen (1985) 159 CLR 507 to the effect that even if I prefer the evidence of the prosecution, I should not make that finding unless I am satisfied beyond reasonable doubt of the truth of that evidence. I cannot find an issue against an accused if that evidence gives rise to a reasonable doubt. The evidence of the offender has not given rise to a reasonable doubt.
I am satisfied beyond reasonable doubt of the complainant’s evidence. I note that it has been described in R v Johnson [2015] SASCFC 170 at [2] as a “perverse paradox that the more extensive the sexual exploitation of a child, the more difficult it can be proving the offence”: see also the Explanatory Statement to the Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT), which introduced the current form of s 56 of the Crimes Act. There is no such difficulty in this case.
The prosecution case is proven beyond reasonable doubt.
| I certify that the preceding two hundred and sixty-six [266] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 22 March 2022 |
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