R v S, JG
[2019] SADC 65
•24 May 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, JG
Criminal Trial by Judge Alone
[2019] SADC 65
Judgment of His Honour Judge Slattery
24 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The accused was charged with 9 counts of unlawful sexual intercourse.
Held:
I find the accused guilty on counts 1, 2, 3, 4, 5, 6, 7 and 8.
I find the accused not guilty on count 9.
Criminal Law Consolidation Act 1935 (SA) ss 5, 49(3); Evidence Act 1929 (SA) ss 34CB, 34P, 34Q, 34R, 34S, referred to.
R v Schultz (2016) 126 SASR 476; R v Ahmadi; R v Hosseini; R v A, N; R v M, A [2018] SASCFC 39; MWJ v The Queen (2005) 80 ALJR 329; Kimberly Merrey v Western Australia (2010) WASCA 62; Thomas v van den Yssel (1976) 14 SASR 205; Murray v The Queen (2002) 211 CLR 193; Liberato v The Queen (1995) 159 CLR 507; R v MJJ, R v CJN [2013] SASCFC 51; R v Tran [2017] SASCFC 99; Hughes v The Queen [2017] HCA 20; Douglass v The Queen [2012] HCA 34, applied.
R v Smart [2018] SASCFC 123; Browne v Dunne (1893) 6 R 67, discussed.
Bulstrode v Trimble [1970] VR 840; R v Howes (2000) 2 VR 141; R v Rajakaruna (No2) (2006) 15 VR 592; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) (1983) 1 NSWLR 1; R v Birks (1990) 19 NSWLR 677; Eastman v The Queen (1997) 76 FCR 9; R v Costi (1987) 48 SASR 269; Stern v National Australia Bank (2000) 171 ALR 192; R v Hart (1932) 23 Cr App R 202; R v Morrison (2002) 136 A Crim R 222; R v R, PA [2019] SASCFC 19; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5, considered.
R v S, JG
[2019] SADC 65Introduction
The Charges
The accused is charged on Information for arraignment on 4 June 2018 with the following counts:-
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
J Gino S between the 24th day of October 2003 and the 26th day of October 2004 at Aldgate, had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
J Gino S between the 24th day of October 2003 and the 26th day of October 2004 at Aldgate, had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
J Gino S between the 24th day of October 2003 and the 26th day of October 2004 at Aldgate, had sexual intercourse with Han G, a person under the age of 17 years by causing her to perform an act of fellatio upon him.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
J Gino S between the 24th day of October 2003 and the 26th day of October 2004 at Aldgate, had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
J Gino S between the 24th day of October 2003 and the 26th day of October 2005 at Charleston, had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
J Gino S between the 24th day of October 2003 and the 26th day of April 2006 at Charleston, had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.
Seventh Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
J Gino S between the 24th day of October 2003 and the 26th day of April 2006 at Aldgate, had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.
Eighth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
J Gino S between the 24th day of October 2003 and the 26th day of April 2006 at Aldgate, had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.
Ninth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
J Gino S between the 24th day of October 2004 and the 26th day of October 2005 at Cooper Pedy, had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.
Each of the counts alleges an act of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). That section reads as follows:
49—Unlawful sexual intercourse
…
(3) A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
There are two elements of the offence of unlawful sexual intercourse which the prosecution must satisfy beyond reasonable doubt in order for the charge to be proved beyond reasonable doubt. The first is that sexual intercourse occurred between the complainant and the accused. The definition of sexual intercourse is set out below. The second element of the offence is that at the time of the alleged offences, the complainant was under the age of 17 years.
Sexual intercourse is defined by s 5 of the Criminal Law Consolidation Act as follows:-
Sexual intercourse includes any activity consisting of or involving—
(a) penetration of a person's vagina… by any part of the body of another person…; or
(b) fellatio; or
(c) …
and includes a continuation of such activity.
Directions
In accordance with my usual practice, in this decision I have set out a number of legal directions separately in different parts of my judgment. One example is forensic disadvantage which I have dealt with at some length at the end of this judgment. Having adopted this method, it is therefore only necessary for me to generally describe the other directions that I have given myself. My preferred approach is to describe the appropriate legal directions applied by me when addressing the various matters which are usually the subject of legal directions.
There are some general matters that should be stated. The prosecution bears the whole of the onus of proof of the guilt of the accused beyond reasonable doubt. This burden requires proof beyond reasonable doubt of each of the elements of the offence with which the accused is charged. The accused is not required to shoulder any burden of proof at all. He is presumed to be innocent of these charges unless and until the evidence which I accept has satisfied me that each element of the offence has been proved beyond reasonable doubt. If I am not satisfied that the evidence before the Court has proved each of the elements of the particular count beyond reasonable doubt, then I would reach a verdict of not guilty of the offence in respect of that particular count.
I refer a number of times during this judgment to this direction but it is necessary to state it from the outset. I have treated the charges on the Information separately. I have only taken into account the evidence that is relevant and admissible in relation to the count under consideration. In making my assessment of the evidence and whether I am satisfied that any particular count has been proved to my satisfaction beyond reasonable doubt, I will take into account the whole of the evidence before the Court on that count and in making that assessment I will also consider whether the version of facts put forward by the accused is reasonably possibly true.[1]
[1] The same position pertains if I consider that the evidence raises a reasonable possibility such that I entertain a reasonable doubt about any count charged against the accused.
I have assessed each witness separately for their truthfulness, reliability and credibility and in so doing I have decided whether I could accept or reject all or any part of a witness’ evidence.
Even though the accused elected to give evidence, there was no obligation upon him to do so and I will assess his evidence in the same way as I assess the evidence of all of the other witnesses in the trial. In giving evidence, the accused has not shouldered any burden of proof which always remains with the prosecution. I am conscious of the decisions of the Court of Criminal Appeal in R v Schultz (2016) 126 SASR 476 and R v Ahmadi; R v Hosseini; R v A, N; R v M, A [2018] SASCFC 39 at [71], that the question is not whether I accept the evidence of the accused. The question is whether, taking into account the whole of the evidence before the Court as I have earlier described, whether I am satisfied that any particular count has been proved to my satisfaction beyond reasonable doubt. Concomitant with that direction, even if I reject the accused’s version on any particular count it does not follow that there will be a finding of guilt on that count. A finding of guilt on any count charged will only follow if I am satisfied beyond reasonable doubt of the guilt of the accused after an assessment of the whole of the evidence before the Court. In light of the discussion which follows, it is important also to state that in making that assessment, I must also take into consideration any aspect of the evidence of the accused which I do accept and whether, having done so, I entertain a reasonable doubt about the guilt of the accused on any particular count or counts.
Later in this judgment I refer to evidence led by the prosecution about a number of uncharged acts and other discreditable conduct which the prosecution alleges was committed by the accused. It is not necessary that I set out in detail that conduct here. I must be satisfied of the probative value of that evidence and the basis for its admission, under s 34P(2)(b) of the Evidence Act 1929 (SA) (“Evidence Act”). Later in this judgment, I address in detail the operation of s 34P, Q, R and S Evidence Act. I also separately address the basis upon which such evidence may be admitted and that I may not use “bad person” reasoning in relation to the charged and uncharged acts. I have not reasoned that as the result of the admission of this evidence the accused is a person of bad character and is the type of person who would offend in the manner charged or, alternatively, he is more likely to be guilty of any or all of the charged offences. It follows that I have not reasoned that because of the number of charged and uncharged acts, the accused must be guilty of something.
In all of my reasoning, I have brought an open and unprejudiced mind to bear upon this case. I have made my decision without sympathy, prejudice or fear and I have not been influenced by public opinion in relation to this matter.
In order to understand the identity of the people and places in this judgment, it is appropriate to create a schedule of people and places. This is set out hereunder and is intended to explain the initials and acronyms used in this judgment.
In this judgment, the complainant Han G is consistently called the complainant and the accused J Gino S is called the “accused” and occasionally “the accused, Taipan”. In this chart, I use the expression ‘the Group’ but I do not include a separate definition of that term. I explain the meaning of that term below.
The people
Han G
The complainant; daughter of Vic S and Ben S; sister of Ol S and AS; niece of the accused J Gino S
Vic S
Mother of the complainant; former partner of Ben S; mother of Ol S and AS; former member of the Group
Ben S
Father of the complainant; former partner of Vic S; father of Ol S and AS; brother of the accused J Gino S; member of the Group
Ol S
Brother of the complainant and AS; son of Vic S and Ben S; nephew of the accused J Gino S; member of the Group
Jem S
Former wife of Ol S
AS
Brother of the complainant and Ol S; son of Vic S and Ben S; nephew of the accused J Gino S; member of the Group
J Gino S
The accused; “Taipan”; founder of the Group; uncle of the complainant Han G; uncle of Ol S and AS; brother of Ben S; husband of Ker S; former husband of MH; father of the following children:
Ch S, Em S, Ju S, Mat S, J Jr S, Nav and An P.
Ker S
Second wife of the accused; mother of Ju S, Mat S and J Jr S; member of the Group
Dr P
One time business partner of the accused; “doctor” of the Group; mother of Nav and An P; member of the Group
D H-S
Member of the Group; mother of Gr H-S, S H-S and A H-S
Em S
Daughter of the accused J Gino S and first wife MH; partner of J McK; mother of Tor; cousin of the complainant Han G; member of the Group
J McD
Member of the Group; mother of A McD
Ju S
Son of the accused J Gino S and second wife Ker S; brother of Mat S and J Jr S; half-brother of Ch S and Em S; half-brother of Nav and An P; cousin of the complainant Han G; member of the Group
Mat S
Son of the accused J Gino S and second wife KS; brother of Ju S and J Jr S; half-brother of Ch S and Em S; half-brother of Nav and An P; cousin of the complainant Han G; member of the Group
J Jr S
Son of the accused J Jr S and second wife Ker S; brother of Ju S and Mat S; half-brother of Ch S and Em S; half-brother of Nav and An P; cousin of the complainant Han G; member of the Group; partner of A DuP; father of Rom, Cam and Ev
A DuP
Partner of J Jr S; mother of Rom, Cam and Ev; member of the Group
J McK
Partner of Em S; father of TS
J Bond
Member of the Group; mother of Dart, Marc, Luc and Sho
Nav
Son of Dr P and the accused J Gino S; brother of An P; half-brother of CS, Em S, Ju S, Mat S and J Jr S
An P
Daughter of Dr P and accused J Gino S; sister of Nav; half-sister of Ch S, Em S, Ju S, Mat S and J Jr S; partner of A McD; mother of O
A McD
Son of J McD; partner of An P; father of O
Lincoln H
Member of the Group; first boyfriend of the complainant Han G
MH
First wife of accused J Gino S; mother of CS and ES
Gr H-S
Son of D H-S
S H-S
Daughter of D H-S
A H-S
Daughter of D H-S
Ch S
Son of MH and the accused J Gino S; brother of Em S; half-brother of Ju S, Mat S, J Jr S, Nav and An P
Tor
Daughter of ES and J McK
Dart
Son of J Bond; brother of Marc, Luc and Sho
Marc
Son of J Bond; brother of Dart, Luc and Sho
Luc
Daughter of J Bond; sister of Dart, Marc and Sho
Sho
Son of J Bond; brother of Dart, Marc and Luc
Rom
Son of J Jr S and A DuP; brother of Cam and Ev
Cam
Son of J Jr S and A DuP; brother of Rom and Ev
Ev
Daughter of J Jr S and A DuP; sister of Rom and Cam
SS
Member of the Group
Other acronyms
S Estate
Place where the Group lived in Aldgate, South Australia
S Springs
Place where the Group lived in the Gold Coast Hinterland, Queensland
S Park
Place where the Group lived in the Gold Coast Hinterland, Queensland
SP Pty Ltd
Company formed by the accused JGS and Dr P
NEP Chiropractic
Chiropractic company of Dr P
S Law Firm
Law firm of the Group; ES and MS are directors; AD is chief financial officer; Dr P is corporate manager
Overview
These charges arise out of allegations made by the complainant against the accused who is her uncle; he and her father are brothers. At the time of these alleged events, the complainant was a child between the ages of about 13 and 16 years, living at a property in Aldgate at which a number of adults and children lived. All of these people lived in a group environment (“the Group”) that had a number of specific characteristics. Children were raised homogenously as members of the Group and without the typically understood relationship between a parent and a child.
Each member of the Group had a ranking decided according to their Emotional Quotient (“EQ”).[2] Children had a similar ranking structure. The accused formulated the ranking structure and the method of measuring a person’s EQ which in turn informed that person’s rank.
[2] T389.29.
All of the members of the Group generally lived on an estate in Aldgate of almost 10 hectares called S Estate. It comprised a mansion house, a large barracks building containing many bedrooms, ablution facilities and other facilities spread over several levels, smaller outbuildings and a number of paddocks.
The adult members of the Group lived within various places in those buildings. The children slept in dormitory-style accommodation on the upper floor of the barracks. The complainant slept in the barracks in different rooms from time to time.
The creation of the Group and its activities commenced from an idea formulated by the accused who decided that he should pursue the crafting of the Ideal Human Environment, known by the acronym IHE. Each of the members of the Group, including children, were required to pursue the attainment of the IHE. The principles underpinning what represented the IHE were formulated by the accused and they developed over time. In the Group, the accused consequentially held a position of primacy.[3] His thoughts constituted the initial rules and doctrines of the IHE as part of his own formulation and that did not change. Each member of the Group was to be constantly involved in research about how to achieve the IHE.[4]
[3] T287.2; T397.9.
[4] T399.9.
The thoughts of the accused permeated the measurement of each Group member’s EQ and consequently the ranking of each person in the Group. The higher a person’s rank the more closely and accurately that person could discern the thoughts of the accused. A direction given by a higher ranked person to a lower ranked person was to be obeyed because that higher ranked person was seen to be more closely aligned with the thoughts of the accused.
In the Group, the accused had the highest ranking and so he was seen to have the highest level of EQ; he maintained his position of primacy in the Group as a result. He was respected and revered. A Group member who disrespected or disobeyed the accused was seen to be insubordinate. Each of the members of the Group were required to align their thoughts with the thoughts of the accused.[5] Group members who were able to discern the thoughts of the accused enjoyed a higher ranking in the Group and this was not connected with or determined by age, intelligence, maturity or life experiences. Any person who acted inconsistent with the thoughts of the accused as they were communicated by him or discerned by others was insubordinate. I will discuss the creation of the concept of the EQ and its sequelae later in these reasons.
[5] T397.9.
The accused enjoyed many benefits due to his ranking. He slept in the largest bedroom in the upper level of the mansion house that was specifically set aside for him; consequentially he had the use and control of most of that upper level of the mansion house.[6] The accused was served by a group of women who were at his beck and call all of the day and night. These women gave the accused massages, manicures, pedicures, ran his bath, washed his clothes, selected, prepared, cooked and served his food and generally attended to his every need.[7] These were all part of the accoutrements of his status and in his position of primacy.
[6] T397.27.
[7] T236.38; T400.4; T403.23.
Within the Group, decisions on issues were made under an arrangement called a wisdom bank which could comprise any three members of the Group called together to make a decision. However, there was a hierarchy of wisdom banks. A wisdom bank comprising members of a lower rank could not bind Group members of a higher rank, whereas the opposite was the case. A decision stalemate in a lower ranked wisdom bank could be resolved by someone with a higher rank. A wisdom bank made all manner of decisions including, for example, decisions concerning the future of children in the Group which may be without any particular parental input.
The accused, his family members and children and those who had been intimate with him had the highest measure of EQ. The accused has been married at least twice and has had children with both wives. He has also fathered two children with a Dr P, a chiropractor, who held a high EQ ranking as did their children.
The complainant was in the second lowest ranking and had a low EQ. She was assessed as being not very bright. Only her father had a lower EQ.[8] She turned 13 in October 2003 when she was at the end of year 7 at school and a wisdom bank gave her permission to leave school.[9] Her parents did not feel that they were in a position to disagree with the decision of that wisdom bank.
[8] T205.6.
[9] T222.4; T611.34.
Apart from a few months of home schooling, the complainant had no formal schooling after that time. She did some minor employment outside of the Aldgate premises but otherwise did menial tasks within the premises and was largely involved in babysitting the children of the other Group members.
From the time that she left school in 2003, the complainant became one of the women who served the accused; she appears to have been the youngest such woman. She was called to serve the accused at any time of the day or night. Because the accused was trusted, nothing was said or thought about this conduct. The principle underpinning the Group was that members were required to “… just go there …” and this meant that members were required to align their thoughts with those of the accused because those thoughts were known to be good and pure and right.[10] This explains the revered status of the accused within the Group.
[10] T397.1.
Due to the Group structure and the status of the accused, it was not necessary for the accused to ask permission of the complainant’s parents before involving her in serving him. She was another individual within the Group with a low EQ and she had a status separate from her parents, notwithstanding that she was only 13 years of age at the time.
Soon after the complainant commenced in his service, the accused in turn commenced grooming her for a sexual relationship. He initially told her that as her uncle, it was his duty to make her a “lady”; this was the role of an uncle in Aboriginal culture. [11] He said that he was a fully initiated Pitjantjatjara man.[12]
[11] T239.7.
[12] T443.26.
The accused arranged to meet the complainant in a disused room in the ground floor of the barracks house. On two occasions (counts 1 and 2) the accused had sexual intercourse with the complainant in that room and there was no ejaculation.[13] From that time and at all times, he required the complainant never tell anyone of this activity. He said to her that no one would understand what he was doing.
[13] T245.6; T253.8.
Later, in his room in the mansion house, the accused required the complainant to perform fellatio upon him and there was subsequent sexual intercourse, again without ejaculation (counts 3 and 4).[14]
[14] T259.10; T260.32.
Subsequently, the accused took the complainant camping to the same place on two occasions (counts 5 and 6). On the first occasion, two other children attended and after they were put to sleep, the accused had sexual intercourse with the complainant in the back of his car.[15] On the second occasion, the accused took the complainant camping on her own. He had sexual intercourse with her again in the back of his vehicle.[16] On both occasions, he did not ejaculate inside of the complainant.
[15] T283.33.
[16] T285.8.
Shortly after the camping trip, the complainant ran his bath and he told her to get into the bath with him. At the end of the bath and after drying the accused, the complainant was taken by the accused to his bedroom where sexual intercourse occurred on his bed (count 7).[17] He ejaculated. At that time, the accused told the complainant to speak to Dr P about her fertility and getting pregnant. After she had a conversation with Dr P, there was a further event of sexual intercourse (count 8) and, after checking on her fertility status based upon what she had been told by Dr P, the accused ejaculated inside of the complainant.[18]
[17] T290.26.
[18] T297.19.
Later there was a trip to the Northern Territory with stopovers in Coober Pedy on the way up and on the way back. A group of people stayed at the Desert Cave Hotel. The complainant alleges that sexual intercourse occurred on that trip at that place between she and the accused (count 9).[19]
[19] T299.26.
From Aldgate in South Australia, the Group moved to the Gold Coast area in Queensland and then later to Kununurra in Western Australia. The complainant’s relationship of service with the accused continued until she left the Group in 2009.[20] It was at that time that she received a letter, Exhibit P5, which was in the name of her parents but which had been drawn by the accused.
[20] T228.14.
The accused denied that any such alleged conduct ever occurred and that it is all a figment of the imagination of the complainant.[21] The accused gave evidence and while he shoulders no burden of proof, I find that the version given by him did not raised a reasonable possibility and I find was not reasonably possibly true. Similarly, I find that the evidence given by the other witnesses called by the accused was not truthful, reliable or accurate in relation to the central issues in this matter.
[21] T447.22; T580.10.
In the result, I find that each of the elements of the counts numbered 1 to 8 inclusive on the Information for arraignment dated 4 June 2018 have been proved to my satisfaction beyond reasonable doubt. I find the accused guilty on each of those eight counts.
Due to differences in evidence between the complainant and her mother, Vic S, about the trip to Cooper Pedy, I entertain a reasonable doubt about whether the elements of count 9 on the Information have been proved beyond reasonable doubt. This doubt does not permeate the decisions I have made about counts 1 to 8 on the Information; the elements of all of those counts I find to be proved beyond reasonable doubt. I am satisfied of the proof of those elements notwithstanding the adamant denials of the defendant that any such conduct ever occurred.
I do not find the elements of count 9 on the Information proved to my satisfaction beyond reasonable doubt and I find the accused not guilty on this count.
In the light of those matters I will review the evidence and later make my findings. Before I do that, it is necessary first to canvass a number of background features an understanding of which is essential to comprehension of the evidence and so the issues arising therefrom.
At a number of levels, an understanding to be obtained from this material will inform my findings and is essential to understanding the decision that I have made. The matters that I set out hereunder are either not in contest or are based upon my assessment of the evidence which I discuss below. I am satisfied that the facts that I set out below in this part of my judgment have been proved to my satisfaction. This will become apparent when I canvass the evidence and I set out my findings about the facts that I find proven.
The background
The accused, was born on 23 April 1947. He gave no evidence about undertaking any formal tertiary education or the level to which he may have attended secondary school. He joined the regular army soon after leaving school and he served at least one tour of duty in Vietnam as part of the regular army.[22] This tour of duty in Vietnam as a member of the regular army had a profound effect upon him.
[22] T429.15.
Because of the absence of a clear chronology, it is not possible to identify when particular events happened by reference to other events.
Ideal Human Environment
Sometime later, the accused resolved to commence research to establish a program involving any person who may wish to become involved. The aim of this program of research included establishing what came to be described as the “Ideal Human Environment” usually referred to by the acronym “IHE”.[23] The intention of the creation of the IHE was that, contrary to the general ways of the world, people could learn to live as part of a Group in a peaceful environment of co-existence and using the IHE structures to resolve any difference that might arise between them. The IHE necessarily required that people live communally and devote their resources, energy and, where appropriate, their earnings to the benefit of the Group. I will make reference in this decision to “the Group”. This is the most felicitous form of expression that can be used to refer to a group of people who voluntarily participate in and devote themselves to the creation of what is described as the IHE. The evidence does not allow me to identify those persons who at any particular time were members of the Group. I accept that the expression “the Group” is indistinct and does not, for example, identify what legal structures may have surrounded the creation of this concept. However, that is the state of things on the evidence.
[23] T430.3.
From its genesis, the structure surrounding this concept had a commercial character. One constant theme was that the Group or persons or entities associated with the Group owned, for example, El Questro Cattle Station (or its lease) in northwest Western Australia. The evidence does not disclose if this involved the purchase of a freehold interest or a leasehold interest in that property. The evidence of the accused was that his capital in large part was used in the initial purchase of assets. He spoke of a contribution of $400,000. In his evidence, the accused was not able to identify any particular asset that may have been purchased for the Group using these funds. They may also have been used in the sense of general revenue and it is not necessary to make any finding on that point. The El Questro Cattle Station property was operated as a commercial operation for the Group.
The structure of the Group was commercial in nature. Members of the Group from time to time separately earned their own income and contributed it to the Group structure that was later established on a charitable basis. The Group itself undertook commercial operations: El Questro Cattle Station and the Blackwater project are two of these. The accused was to a greater or lesser extent involved in these projects in the sense that he loaned his available labour or skills to them as and when required. This contribution was not in any way connected with the status of the accused in the Group.
On the evidence which I find to be truthful, reliable and accurate, the accused remained the pre-eminent person at the head of the Group and at the apex of all of the Group’s activities. This primacy status was separate from and not dependent upon the accused’s contribution to any particular work or project in which the Group was involved. The accused was the initiator of the concept called the IHE. It was he who formulated its first set of rules. In the pursuit of the IHE, the task of the members of the Group was to align their thoughts with the thoughts of the accused because his thoughts were pure, they were correct and right; they were to be preferred to the thoughts of an individual member. Thus, it is that the activities of the accused in any particular work or projects were never determinative of his status in the Group. His primacy existed in a different and more important context.
It is known that the accused has, at all relevant times, been called “Taipan”.[24] He said that this was a name given to him by a friend or an army acquaintance who had an interest in snakes.[25] The evidence of the accused is that he was consistently known by that name such that a reference to Taipan was always understood as a reference to the accused. The accused was consistently referred to by the name Taipan and he was known as Taipan from at least the time (and very likely earlier than) the obtaining of the interest in El Questro Cattle Station.
[24] T392.32.
[25] T431.18.
From the commencement of the implementation of the IHE concept within the Group, decisions were made within a system called a “wisdom bank”. As part of the IHE, the concept of the wisdom bank decision-making process developed over time; where there were difficulties or disagreements between the members of the Group, then they would be resolved by other members or an selection of them meeting as a wisdom bank to combine their judgment to resolve such an issue.
Emotional Quotient
Consistent with the development of the wisdom bank was the development and the implementation of a concept called “EQ”. EQ is an acronym for “Emotional Quotient”. A decision was made by the accused that different people had different levels of EQ and so from the outset there was a system for the classification of their EQ. This was described in the evidence as a “ranking”. Those persons with a higher ranking held that position because they were assessed as having a higher EQ and the inverse arrangement operated for those in the lower ranks. The ranking system for the formation of a wisdom bank and its particular status was determined by the assessment of a person’s EQ. The process implemented to assess and then measure a person’s EQ varied over time. On the evidence, I am satisfied that this process was largely random, and was entirely subjective. For example, the accused Taipan and those within his immediate family were generally within the highest rank within the EQ holders. So also were those who were or had been intimate with the accused. Conversely, the complainant and her father were at the bottom of the rank and they were assessed to have a very low level of EQ. I will return to those matters later in this judgment.
S Estate
The financial arrangements for the management of the Group did not mature until the period from 1995 to the year 2000. By that time, there was some form of incorporated entity which was a property owner. The evidence within Exhibit P12 is that a company called “SP Pty Ltd” was incorporated to purchase a property of some 9-10ha comprised in Certificate of Title Register Book Volume 5118 Folio 171 and Volume 5118 Folio 191. This property, formerly known as Raywood Park when it was owned by the Downer family, became known as S Estate. The evidence is that initially the two shareholders and directors of SP Pty Ltd were the accused and Dr P.[26] In time, Dr P became the only director and shareholder of that company.[27] There was also some form of incorporated entity as the responsible entity for the carriage of the commercial enterprises of the Group such as SPED and SPDD, which provided rehabilitation and other similar type services to the public, including for a fee.
[26] T647.18.
[27] T648.16.
Dr P, who was a person ranked as having a high EQ, operated up to 12 clinics as a chiropractor in the Adelaide area and elsewhere.[28] The accused worked as a practice manager in those clinics. The evidence of Dr P is that the accused Taipan and Dr P had two children together, Nav born on 23 March 1990 and An P born on 15 June 1986.[29] The accused Taipan and Dr P were the only two shareholders and directors of SP Pty Ltd, the registered proprietor of the property called S Estate. That company did not act as the trustee of any trust and so was both the legal and beneficial owner of this property.[30] The shares in this company were not held in trust; they were the legal and beneficial owners of these shares.
[28] T586.12.
[29] T582.20.
[30] T648.24.
Tax-exempt charity status
Following advice received from a Group member, A DuP, who is married to one of the accused’s sons, the enterprise was registered as a tax-exempt charity; it was a non-profit organisation devoted to the research upon the development of the IHE.[31] The arrangements were that there would be a pooling of resources and the Group members would conduct some form of training seminars in rural areas and other places under the names of SPED and SPDD for a fee. Those who were employed outside of the particular place or places of residence of the Group pooled their after-tax income into the Group coffers.
[31] T443.6; T626.25.
As a result of efforts of a Group member, J McK, who is the life partner of the accused’s eldest daughter Em S, the Group undertook more commercial operations in Queensland and in other places including Sydney NSW. The commercial structures surrounding these undertakings was not disclosed on the evidence.
The Research
The evidence of the accused was that throughout the course of all of this activity by the Group over the many years of its existence, research was continually being conducted. This research was carried out in order to perfect the IHE and was carried out by every person in the Group. There is no evidence that every person in the Group understood that he or she was carrying out research or what the topic or the nature of the research might be. There was no specificity about this research, there was no topic or thesis that guided the limits of the research in relation to proof. At any given time, up to 50 people could be involved in this research 24 hours a day, seven days a week, but that happened without any particular form or level of supervision. There was no academic or other form of discipline brought to the process of the research.
The evidence of the accused and Dr P was that Group members were all involved in this research. The evidence of Dr P was that members of the Group were involved in the research “…24/7…”[32] No one was able to tell me what this research comprised. Oblique suggestions were made such as the perfection of the IHE or at least its further development, indicating that the IHE was an evolving concept. In the more formal sense, there was no evidence of a subject or topic for this research and so there was no suggestion of a scope and thesis to target. There was no evidence that there was by any means a collection of data from any source, whether by survey or interviews. There was no evidence of supervision of the work to ensure authenticity leading, for example, to a conclusion that could be defended or be the subject of peer review. This suggestion by Dr P of members of the Group being researchers on a “…24/7…” basis is in my opinion irreconcilable with the facts and other evidence.
[32] T627.11.
The IHE and EQ
The accused Taipan was the person who first proposed the concept of the IHE and he said he had written a number of books on the topic.[33] This goal of achieving the IHE was the central focus of the Group of people who joined in this endeavour.
[33] T538.5.
This ranking system evolved over time. The accused, Taipan, proposed the ranking process and the method of it based upon the ranking structure of the military with which he was well familiar as a member of the regular army as well as upon what he derived from his observations of the natural world about the survival of the fittest and the strongest.[34] One of the features of life in general within the Group, according to this ranking structure was the necessity for there to be a change of loyalty of individuals from say, their own personal family structures, to the Group itself. Children were and are raised homogeneously such that they shared tasks, meals and sleeping spaces together at S Estate in Aldgate. This was in a dormitory arrangement where some of their parents also slept. Children were not seen to be members of a family unit but as members of the Group. Their fate and so their futures were to be determined by a wisdom bank comprising people often other than their parents. Their parents may have been consulted but it was obviously necessary for those parents to be Group members and if they disagreed, to attempt to challenge the wisdom bank decision for this child. This reflected the authority of the wisdom bank structure and the disassociation of members of families.
[34] T439.29 – T442.11.
The accused had at least six children, some of whom slept in the dormitory called the barracks, but he never slept there. He always slept in the main bedroom upstairs in the main mansion house in S Estate. Under these arrangements, the accused occupied a double master bedroom on the first level of the main house.[35] Adjoining it was an area that was called a study and immediately adjacent to that room and slightly down the hallway was a bathroom.
[35] T397.32.
Exhibit P2 sets out the manner in which the rooms on the upper level were disposed. Along the southern wall and adjacent to the study, is a walk-in robe opening onto the study. The accused said in his evidence that this was not the configuration of the room at the time that he occupied those rooms.[36] This had not been earlier suggested to or by any other witness and I will leave it to one side as it is unimportant here.
[36] T529.3.
Adjacent to the bathroom were two guest rooms. Across the front of the building on the northern side on the first level were three main bedrooms numbered 1, 2 and 3. The smallest of these was bedroom 2 and the largest bedroom 3. Em S and her partner J McK occupied bedroom 3. For a time, the accused’s second wife Ker S occupied bedroom 2;[37] she never occupied the main bedroom and study area with the accused apart from a short period of time soon after the Group moved into S Estate. A number of other persons including, initially, Em S occupied bedroom 1; in the end, it was occupied by J Bond. An P on occasions slept in the bedroom adjacent to the bathroom on this level as did the complainant.
[37] T398.14.
At the eastern end of the downstairs section of the mansion house, there is a large independent living unit consisting of a number of rooms. These rooms were occupied by D H-S and her children.[38] There is a smaller room near the foot of the back stairs that were usually used as service stairs. The room is called the “small study” but it was set up as what became called a “healing room”. The furniture in it included a chiropractic treatment table. The balance of the ground floor comprises large rooms disposed as a study, living room, library and formal dining room adjacent to a very large kitchen.
[38] T398.23.
It has been necessary to describe the layout of this mansion house because it is essential to the disposition of a number of factual issues in this case. There is a further feature not related to the physical layout of this house but which is important in my decision-making. Raywood Park was built by the Downer family and it consisted of some 9.6 hectares of area. The main mansion house now sits only about 50-100 metres from and below the South-Eastern Freeway.[39] The evidence before me is that this Freeway produces a constantly high level of noise which was variously described as a constant roar of sound. As a result of this noise, the accused did not work on whatever he was doing in the main house and sought out quieter surrounds in the library in the town.[40]
[39] T561.2.
[40] T561.13.
Separated from the mansion house and set down on the property below the main house were a number of other buildings.[41] These included a garage, a chapel and a house called the chalet that was occupied by a J McD whose son A McD married the daughter of Dr P and the accused. These buildings appear to have little or no significance in the scheme of things here.
[41] T217.1 – T217.12.
There was another larger building set some 150 metres or so below the mansion house. It was disposed as a two-level building and there were 19 bedrooms on the first level. There were also 15 bedrooms on the ground level. The evidence is that no one occupied any of the bedrooms on the ground level or used them for bedroom accommodation.[42] The evidence was that the only bedrooms used were on the first or upper level.
[42] T341.31.
The photographs in Exhibit P3 disclose that this was properly described as barracks-style accommodation with bedrooms of limited size and communal bathrooms and laundry. On the upper level, bedrooms 1, 2 and 3 at the northern end of the level were known as the caretaker’s residence.[43] The complainant sometimes slept in bedroom 2 or 3 of that residence area and her parents slept in bedroom 1.[44] Sometimes the complainant slept elsewhere. The complainant had two brothers, neither of whom slept in that caretaker’s residence area.[45] In the upper level, the boys slept on one side of the level and the girls slept on the other. Some adults such as Dr P also slept in those premises as well as other places on the property. The undisputed evidence is that the bedroom accommodation on the upper level could house all of those seeking sleeping accommodation there and no use was made of the ground floor accommodation for sleeping.
[43] T349.21.
[44] T247.2.
[45] T247.13.
On either side of bedroom 1 there were two stairwells. There was a further stairwell at the southern end of the building. These stairwells could be accessed by any person from outside the building or from within the levels of the barracks. There was a central atrium letting light into the building. Each room had an opening window space.
The furniture within all of the bedrooms was generally standard. There was a bed (and the size of these varied according to the occupant), a built-in wardrobe and desk with drawers. If there were single beds in the room, a standard bedhead was available and the bed was placed to one side of the window. If a larger bed was placed within the room, the arrangement was different. It was not always the case that the built-in furniture remained within each of the bedrooms of the barracks.
At the rear of and to one side of the barracks was the garage, the top level of which was set contiguous to the roadway which runs through the property and up to the main mansion house.[46] The barracks and the garage were some 150 metres or so from the mansion house and below it as the land fell away towards the Mt Barker Road entrance.
[46] T218.32 – T221.11.
I have earlier mentioned the area of the northern end of the upper level of the barracks. This consisted of one large bedroom occupied relevantly by Ben S and Vic S, the parents of the complainant. There were two other bedrooms numbered 2 and 3. Bedroom 3 was the larger of these two bedrooms. There was a bathroom between bedrooms 2 and 3 and a hallway outside of that area running from the door of bedroom 3 down to the door of bedroom 1. Immediately next to the door of bedroom 1 there was a doorway from the hallway which led into the common area surrounding the bedrooms on level one as they face onto the light-shaft/internal courtyard area (see generally each of the four pages of Exhibit P4).
The complainant’s immediate family
I turn then to the people from whom and about whom evidence has been given. Each of them are described on Exhibit P1. A considerable amount of unchallenged evidence has been led from and about them.
The complainant is the daughter of Ben S and Vic S.[47] Her parents did not marry and they have now separated as partners.[48] Vic S left the Group in 2013 and Ben S remains within the Group.[49]
[47] T186.10.
[48] T384.29.
[49] T385.1.
Ben S and Vic S have two other children, AS and Ol S. The complainant is the middle child.[50] There was no evidence about AS. Ol S gave evidence. In 2009, at the age of 20, he left the Group to get married and have children.[51] He and his wife lived in Queensland near to his wife’s family. He and his wife are now separated. Following their separation Ol S returned to the Group.[52] He maintained that during the time he was away from the Group he was still part of the Group. Ol S now operates a number of businesses within the Group focused on operations at the cattle stations. I will later deal specifically with Ol S’s evidence apart from one matter that should be dealt with immediately. In the course of giving his evidence, Ol S told me of his work history. He left S Estate and he went to Sydney to work in building and construction. Because of the nature of the evidence that he gave, I found it initially difficult to assess at what age he was when this occurred. On questioning from me, he said that he had commenced fulltime work with a person/entity connected to the Group in the building and construction area when he was only 14 years of age.[53] This was from sometime in December 2002. He would not have been living at S Estate from that time. The complainant was two years younger than him and AS was seven years younger than him and so he would have been seven when Ol S left S Estate to move to New South Wales to work. So also, Ol S would not have been present for or aware of a number of events about which the complainant gave evidence. In his evidence, he said that he did not witness, for example, anyone being struck with a stick as part of internal discipline at S Estate.[54] He was gone from that place at least from the end of 2002 and the clear impression that I gained was that the timing of this event was at about this time or earlier than that.
[50] T384.18.
[51] T666.1.
[52] T665.4.
[53] T679.14 – T680.5.
[54] T660.12.
I do not need to decide precisely when Ol S left S Estate. However, this gives rise to two other issues of real importance here. Both are connected with the issues of timing. The first is that the evidence of Ol S about what he witnessed (and did not witness) about corporal punishment depends upon the time that he was present at S Estate. The second is that contrary to what I was given to understand by him from this evidence, Ol S did not complete his schooling to age 15, but appears to have left school when he was still 12 years of age. He only completed one term of grade seven at school. I will deal later in more detail about that aspect of his schooling. He said he was home schooled after that time but could not really describe what that entailed. At the same time, he was employed with his father in the maintenance of S Estate.
Education of the complainant
The complainant did not undertake any formal schooling from the time that she finished year 7 in 2003.[55] She had just turned 13 years of age in October 2003. The evidence was that after that time she attended some form of education run by the Group called “school for success”.[56] There was no clear evidence on the point of precisely what this alleged education comprised and I am not satisfied on the evidence that it was any form of regular education. The complainant could not say what the education was or what she was supposed to learn. Her evidence is that she immediately obtained a job and was employed on a part-time and then a full-time basis.[57] She usually worked as some form of shop assistant. There is no other evidence that she ever attended any type of formal education from the time that she finished grade 7.
[55] T222.4.
[56] T222.9.
[57] T222.16.
In her evidence, Dr P said that the complainant made a request that she not be required to return to school after she finished year 7 and that her request was made to the wisdom bank.[58] The wisdom bank agreed to this request but there is no evidence of who comprised this wisdom bank. Her parents both agreed, however the evidence which was not challenged is that her parents did not fulfil the expected role of parents to be the final arbiter of their child’s education. The complainant was one amongst a number of children in the Group. In her evidence Dr P said that the general assessment was that the complainant lacked sufficient intelligence to go on with her education.[59] The complainant made the request and the matter was decided by the wisdom bank under the Group’s protocols; her parents did not resile from the decision of the wisdom bank. This was symptomatic of the arrangements within the Group of relying upon the decision of the wisdom bank and the removal of the usual familial structures where parents of a child make the decision, for example, about the level of a child’s education.
[58] T611.29.
[59] T607.29.
There is no evidence of the collective intelligence, life skills or qualifications of whoever comprised the wisdom bank such that they brought any particular insight, skill or qualifications to the decision about the education and so the future of the complainant who thereafter largely performed menial tasks that required no skill or training. The effect of the decision meant that as early as a 13-year-old her life was of service of others by performance of largely unskilled labour.
The accused’s immediate family
The accused has been married twice. His first wife was MH. There are two children from the first marriage. Ch S, about whom there has been no evidence and who was born on 8 July 1979 and Em S, who was born in 1977.[60] There is no evidence about when the first marriage to MH was dissolved. The accused then married Ker S who was 10.5 years younger than him but there is no evidence of the date of this marriage. There are three children of this union; Mat S born in 1983, J Jr S born in 1984 and Ju S born in 1986.[61]
[60] T433.1.
[61] T431.12.
There was little evidence led about the position of Ker S as the wife of the accused apart from the fact that in the relevant period the subject of these charges, she did not sleep in the same bedroom as the accused in the mansion house at S Park. She slept in bedroom 2 of the mansion house or somewhere else.
The accused had two further children with Dr P. They are An P born on 15 June 1986 and Nav born on 23 March 1990.[62]
[62] T438.11.
Position of the accused within the Group
The overall impact of the evidence given by the accused and some of the other witnesses called by the defence was that the accused did not occupy any particular place of importance within the Group. Their evidence was that there was a shared wisdom within the Group such that decisions were made corporately in a wisdom bank process.[63] The evidence of each of those witnesses consistently repeated that view. The clear impression that I obtained from this evidence is that the accused was treated and was to be treated within the Group as no different to any other member of the Group and he held no elevated position within the Group. This evidence given by these witnesses I find is not reliable, accurate or truthful; their evidence fails to distinguish between the operation within the Group and the commercial undertakings of the Group from time to time.
[63] T204.18; T389.35.
I consider that the reality is entirely different based upon the evidence that I am prepared to accept and this view can be easily explained based upon the whole of the evidence.
I have earlier described the sleeping arrangements for the accused. He slept separately from his wife Ker S and in the main bedroom in the mansion house at S Estate with which there was a contiguous study room area. That study was sometimes used for meetings for particular sub-groups but that appears to have been the exception and that did not occur regularly. Under this arrangement, the accused occupied the major bedroom space in the premises and on his own. He did not, for example, ever occupy a room in the barracks whereas his wife Ker S first slept in a small bedroom (bedroom 2, see Exhibit P2 page 1) and then later on in the barracks. The evidence of the accused, the complainant and the complainant’s mother was that the accused exclusively used the main bathroom on the top floor of the mansion house. The complainant said that the first-floor area around the bathroom was to be vacated when the accused was having his daily bath, usually in the evenings.[64] The accused denied that anyone else was involved with him having an evening bath except he and his wife Ker S and that there was no particular routine that was required to be followed by anyone else and connected with his ablutions.[65] This evidence is not truthful, reliable or accurate. At that time, there would only have been limited occasions when Ker S served the accused as a member of a group of women in the Group who did this task. I will return to that topic later.
[64] T372.38.
[65] T446.9.
I am satisfied on the whole of the evidence before the Court that the accused enjoyed a significantly elevated place in the hierarchical structure of the Group. The accused acceded to the proposition that it was his idea initially to create a ranking structure within the Group based upon an assessment of a persons’ EQ, however that EQ may be assessed.[66] Any ranking structure however established necessarily involves subjective decision making about other people. That fact was accepted by the accused as being part and parcel of a ranking structure similar to that used in the military. In any such structure, there are people at a higher level and those at the middle and lower level. The status of a wisdom bank decision varied according to the rank of the persons on the wisdom bank.
[66] T442.12.
The evidence before the Court satisfies me that those persons who were intimately connected with the accused or had any familial connection with the accused enjoyed a higher EQ ranking. This also included those persons such as D H-S who at times was the administrative assistant of the accused. There were also different rankings within families; Vic S,[67] the mother of the complainant, was given a middle ranking whereas Ben S,[68] the father of the complainant and the brother of the accused, held the lowest ranking possible and was treated accordingly. One result was that persons who were much younger than Ben S, such as his son Ol S or his niece Em S, had a much higher ranking than him and so exercised, by dint of that fact, a higher level of authority. In the result, it was possible that in 2003, members of a wisdom bank who did not have children and who had little or no life experience, could make decisions about the future of members of the Group, such as the complainant. As a consequence, and without any objective guidance, a child such as the complainant could be corralled into menial work and given the lowest possible ranking irrespective of the views of her parents who, because of their membership of the Group, deferred to the decision of the wisdom bank.
[67] T206.16.
[68] T205.6.
There are two crucial pieces of evidence that inform my decision making here. Both are associated with the mother of the complainant whose evidence I accept without hesitation. I found the evidence of Vic S to be truthful, honest, credible and reliable. I accept her evidence without any hesitation.
Vic S was a member of the Group for almost 28 years and she left the Group in 2013.[69] From the time that she joined the Group, she was made fully aware that the accused was the leader of the Group.[70] She was aware of the projects that the Group undertook under the promotion of the IHE, including PR2000 and SPED which was a program for recovering drug addicts and recovering alcoholics.[71] She was ranked and was in the lower half of the ranking structure. She was subject to the decisions of the wisdom bank which she said, was required to listen to the views of a higher ranked person and if that did not resolve the issue, it would go higher.[72] I am satisfied on the whole of the evidence before the Court, that the highest person in the ranking structure was the accused.
[69] T385.5.
[70] T385.11; T392.27.
[71] T385.16; T387.7.
[72] T396.31.
The primacy of the position of the accused was consistent with the philosophy of their Group as explained by Vic S to: “…just go there…”[73] This philosophy meant that a member of the Group had to align his or her thoughts with the thoughts of Taipan, the accused. This required the member to discern the accused’s thoughts and “just go there” as well as also ignoring their own thoughts. This is because the universal belief within the Group was that the thoughts of the accused were pure and trusted; they were the right thing. Any Group member who was assessed as having the thoughts of the accused also enjoyed a higher rank. Ol S was such a person and so his rank was higher than the rest of his own family.[74]
[73] T396.37.
[74] T209.9.
Vic S also said that women’s group meetings were held in the bedroom of the accused, with him present.[75] In those meetings, training was given to the women by the accused about being a good female, how a woman should dress and how a woman should behave around men. Included within these instructions, the accused continually told these woman that the proper order of things was that males deferred to God and females are to defer to males.[76]
[75] T399.23.
[76] T399.37.
There were meetings of women with the accused that applied what may be described as one form or another of different methods of healing. These were called “healing meetings”. These healing meetings were conducted by the accused and he taught the women how to be good healers. Invariably this healing process involved a woman or women placing their hands upon the accused at some part or another of the accused’s body.[77] These meetings occurred with groups of women or a group of two women or women separately. Vic S said that the complainant was one of the few females who looked after the accused separately in such a healing process. She was involved in that role from the time she was 13 years of age.
[77] T401.31.
Exhibit P5 – letter to complainant
The second matter is Exhibit P5. This is a letter purportedly written by Vic S and Ben S and directed to the complainant at the time she made her decision to leave the Group. I have used the expression “…purportedly…” deliberately because in her evidence, Vic S said that neither she nor Ben S separately or together wrote this letter. Her evidence was that the letter was written by the accused, it was his reaction to the announcement by the complainant that she was leaving the Group and having written it, he left it to them to deliver it to the complainant upon her departure.[78] The accused said that the letter was the idea of Vic S and Ben S and they asked him to assist in drafting and settling the letter.[79] I do not accept the evidence of the accused for reasons which I will explain later. For those reasons and which I develop below, I accept the evidence of Vic S because I found it cogent, credible, reliable and truthful.
[78] T411.27 – T412.34.
[79] T569.1.
The contents of this letter are instructive and read as follows:
Dear Han G
I felt like I needed to write to you to make it clear to both you and Ol S where I am standing. My intent is to be with Taipan in assisting him in creating the IHE. This means that wherever the IHE is that is where you will find me. As Ben S stands for unity, then where ever there is unity that is where you will find him.
Just as you and Ol S are learning what it is like creating your family unit (along with Jem S), so also are Ben S, AS and myself creating our family unit in line the IHE laws.
If you wish to fool yourself, you should not try to fool us as well. You are out there because you were insubordinate. You are therefore in a state of insubordination and against the laws of the IHE and therefore against Ben S and I. You are not for unity nor for the IHE, you are for you. That is the truth.
As you have gathered, you and I are both creating a family unit independent of each other. It would appear we are on different paths against each other. I sincerely wish you and Ol S well on your path and I would also like to make it clear my intent is not to veer from my path. So don’t talk to me as though we are friends because the reality is that we are on different paths and soon enough we must fight.
When you said to me a few years ago, ‘You may not be a good mum but you’re a pretty good friend’, I felt like I had achieved a lot by your statement. That is what I have always wanted from my children, in fact that is all I have wanted from any association I have had with anyone. Han G, please consider this, is what you and Ol S did, (in not consulting or consider Ben S, AS or myself about your decision to be not in this family, the things that friends do to each other?).
Do not fool yourself into thinking you are out there having an experience for this family because that is not the truth. The truth is that you are against us because you are not with this family and you are not trying to create the IHE.
As far as Jackie and Ken and Jem S supporting you – you are in bed with them, of course they are supporting you. Wait until you try to be truthful to them or create the IHE. I dare you to be truthful to them or start creating the IHE.
A few weeks ago you were calling them all some pretty interesting names. Now you are in bed with them. Talk to them like you talk to me. Try to unite them.
You and Ol S should not fool yourselves about an experience. You certainly are having an experience. You are both in a state of inebriation like everyone else out there. You should fit in well there, everyone is trying to rob energy from everyone else.
Han G, anyone can call someone else mum and dad, but can you create a friendship? Can you unite people? Can you create the IHE?
The IHE is what Ben S and I are doing. You are creating a Han G environment! Jackie is creating a Jackie environment. And Jem S is creating a Jem S environment and Ol S is creating an Ol S environment.
I wish both you and Ol S, Jackie and Jem S good luck on your journey.
With respect,
Vic S and Ben S
There are many issues that are evident on the face of the letter but there are some that ought to be emphasised. The accused has written that the intent of Vic S and Ben S is “…to be with Taipan (the accused) and to assist him in creating the IHE…” The expression of this sentiment by the accused is completely consistent with the evidence of the complainant which was denied by the accused and some of the other witnesses called by him about the status of the accused within the Group. The expression used by Vic S was that the Group was to strive in all things to align their thoughts with those of the accused and not their own and “just go there”.[80] This was because the universal belief was that the thoughts of the accused were pure and trusted, they were the right thing (for everyone in the Group). This placed the accused in a position of primacy in the Group. He was at the apex of the functions of the Group and his thoughts and directives set the direction of the activities of the Group. The evidence given by the accused and also led from the witnesses called by the defence on this topic, I find has no credibility nor is it truthful or reliable. I refer in particular to the evidence given by Dr P that the accused was in no elevated position within the Group and was merely to be seen as another foot soldier in the IHE.[81] I found this evidence to be so lacking in reliability and truthfulness that I was not able to accept any part of it. I formed the very clear view at the time that the evidence of the accused and Dr P on this topic was not truthful.
[80] T397.1.
[81] T596.15.
The background material that I have earlier discussed satisfies me beyond reasonable doubt that regardless of what happened beneath him, the accused was the leader of the Group. He exercised those powers as the leader at the pinnacle of the Group and as will become plain from the discussion below, he ensured that those in the Group understood and revered his elevated position.
There are two further matters to be mentioned about this Exhibit. In the fifth paragraph, the accused summarises and confirms the evidence of the complainant about her dislocation from her parents and that, in the accused’s words, this is what he wanted from her, it being at the heart of an organisation of which he sat at the pinnacle and then aligning those below him with his thoughts. One of those was the dislocation of the family unit and a melding of people in that homogenous Group with him as its head. He celebrates the fact, that as a bad mother, Vic S is a good friend. That is testament to the success of the process which he oversaw.
I will return to that Exhibit and these matters later in more detail but all of this background must be understood in order to fully comprehend what follows. The events the subject of these charges did not occur out of the blue. The circumstances of the Group as guided and fashioned by the primary thoughts of the accused explains the subservience of those below the accused, how the accused became emboldened in his behaviour and explained how the complainant could be so isolated, vulnerable and why she did not make any complaint about his behaviour to any other person. I fully accept her evidence that there was no one to whom she could turn and any connection she had within the Group was as one of the lowest ranked members of the Group, without any power, status or authority.
The evidence of the complainant
The complainant, Han G is the daughter of Vic S and Ben S.[82] She was born on 25 October 1990. The accused is her uncle. She gave evidence that initially she lived in Kununurra in Western Australia, then she lived at Crafers for a period of two years and later she lived in S Estate in Aldgate from about 2001.[83] She went to live at S Estate at the time when she was about 10 years of age.
[82] T186.10.
[83] T186.33.
The family moved to Kununurra for a project called PR 2000 at El Questro Cattle Station. She recalls she lived at the cattle station for a period of about 6 months and their accommodation was in tents. She understood there were other families who lived there and their intention was to live together, to work together and to resolve conflicts without problems.[84] Her mother Vic S was a trained nurse and midwife. She obtained employment in that role in Kununurra. As a result, her mother was supplied with a Government owned house in the town. The family lived in that home for about a year after project PR 2000 had been completed.
[84] T187.27.
Some of the Group then moved to a house in Crafers in South Australia.[85] The family lived in a home in Crafers, with other families as part of a Group all of which were pursuing the goal of living in an Ideal Human Environment called the IHE. This Group comprised a limited number of families. Those families are described on the face of Exhibit P1. As I have earlier described some of these relationships I will only identify some pertinent matters.
[85] T189.8.
I have earlier mentioned D H-S as a member of the Group. She has three children, Gr H-S, S H-S and A H-S.[86] The father of those children lives outside of the Group. As best as I can ascertain from the evidence, there is no connection between the father of the children and the children or anyone in the Group or its activities. The evidence is that the father of the children has never lived within the Group.
[86] T200.9.
The parents of the complainant, Ben S and Vic S, have three children. They are Ol S, the complainant Han G and AS.[87] Ol S left the Group at or about the same time as the complainant which was some time in 2009. There is no evidence about the status of AS or whether he remains a member of the Group.
[87] T187.6.
There is a relationship between Em S and J McK.[88] They have a child Tor born 29 May 2006.
[88] T193.8.
The accused is the father of Nav and An P. The evidence is that he is the father of at least seven children, six of whom remain within the Group.
The Group therefore is, to an extent, reflected in Exhibit P1. Those no longer within the Group are Ch S, the complainant and there is no evidence about the position of AS. The evidence also discloses that other persons have become involved within the Group, such as Lincoln H and SS.
The complainant gave evidence that on a number of occasions she witnessed Dr P looking after the accused.[89] She saw Dr P cooking for him, attending on his room, giving him a “healing” there as well as giving him a physical massage healing. She can remember that these healings occurred on at least 5 or 6 occasions. She thought there were many more occasions when this occurred. She was aware of these healing meetings. She said in her evidence that in a healing meeting, a group of females would sit around the bed on which the accused lay. One of the women would give him a healing. She would do so by placing her hands upon a particular part of the body of the accused. She said that Dr P was involved in these healing meetings. Dr P denied this evidence. She said as a chiropractor, she treated the accused’s back condition but usually on a treatment bed on the ground floor of the S Estate mansion. I will discuss the evidence of Dr P later.
[89] T196.12.
As the evidence developed, it became clear that the person most familiar with the activities of the accused was the complainant. As the evidence of Vic S discloses, from the age of 13 the complainant became the person who attended most closely upon the needs of the accused.
I have earlier mentioned J McD. She came into the Group following the separation from her husband.[90] She had twin children one of whom was A McD. J McD was one of the women who trained the complainant in the method of giving healings to the accused and she taught the complainant how to give the accused hand and feet massages. She cooked for the accused, made his bed and brought his food. However, from the time that the complainant received training on how to serve the accused she understood that the role of J McD was only secondary to the principal carer to the accused namely D H-S.
[90] T199.12.
The complainant was told that the principal role of D H-S was to do all the typing and administrative work for the accused and to arrange for food to be cooked for the accused, selection of his fruit, for his fingernails and toenails to be done and for him to be given massages.[91] There was a strict protocol in relation to the food of the accused. His fruit could not have any marks on it and it must not be over ripe or under ripe. Only a few select people within the Group were given permission to pick the fruit of the accused. Separately, An P was the person who initially looked after the clothes of the accused, running his bath and serving the accused generally.[92] An P instructed the complainant about how the clothes of the accused were to be hung up in his cupboard. Dr P, her mother, denied this evidence of any connection between her daughter An P and her father, the accused.[93]
[91] T200.23.
[92] T201.12.
[93] T641.12.
The complainant gave evidence that was not seriously challenged, that the children of the accused and those intimate with the accused were highly ranked within the Group. She said that after the accused, Em S was the highest ranked person within the Group and she carried out all of the accused’s intentions.[94] Em S could give instructions to those lower in the rankings. She had the highest EQ of any member of the Group. Dr P had an equal rank with Em S as did A McD.
[94] T201.20.
Em S had the authority to tell members of the Group when they could or could not eat, what they would do and whether or not meetings should be held.[95] There is a real controversy about the evidence concerning punishments within the Group and I will deal with that matter in detail later.
[95] T201.26.
Em S had as her partner a man called J McK and he was regarded as a Low Energy Attractor.[96] There was no challenge to the evidence of the complainant that J McK was ranked very lowly in the Group. He lived at S Estate and he operated a construction business.
[96] T201.33.
Ju S lived for a time at the S Estate but he was also studying law at Bond University.[97] Prior to going to Bond University, he lived at the S Estate full time. Ju S was ranked highly and carried out tasks as a leader of the Group. Mat S also lived at S Estate and he was ranked only just below Em S. He had the same powers as Em S and exercised them accordingly. He decided upon particular physical or mental punishments and convened meetings. The complainant recalls that Mat S gave orders, for example, for a person to be punished or not to eat as part of the punishment. Similar to Ju S, Mat S and Em S, the accused was a very highly ranked person; he was the highest ranked person in the Group.
[97] T202.35.
The complainant explained that the wisdom bank would vote on whether someone could come up in the rankings. The rankings system had been established by the accused.[98] The determinant of whether a person could move up the rankings was whether or not that person had thoughts similar to the accused and so had a higher EQ. Whether that was so was a matter for the determination of the meeting itself. Those persons who were adjudged to have thoughts similar to the accused would be in the highest ranking of the Group. The complainant said that Em S, Mat S, J Jr S and Ju S were always in the top four ranking of the Group.
[98] T204.18.
The complainant said that conversely, her father Ben S was described as a “shit kicker” and was ranked the lowest in the Group.[99] He was treated like a servant and, as she described, as a piece of dirt. He was really in the Group to make repairs to things and had no other authority.
[99] T205.6.
Not only was there a ranking system within the Group, a decision was made by those highest in the ranking structure that, after having viewed the film “Gladiator” sometime in about the year 2000 that there should also be a form of salute.[100] Once that decision was made, it then became necessary for anyone lower in the Group to give a salute to anyone higher in the Group. This was a salute in the same form as a military style salute and was to be accompanied by the expression of the words by the lower ranked person of “strength and honour”. It was necessary to give this salute as a sign of respect. Anyone in the lowest rank of the Group was not saluted. It followed that, for example, the complainant and her father did not ever receive a salute. It was always necessary for them to salute the other persons around them because they were always higher in the Group structure.
[100] T227.36.
The complainant said her mother Vic S was middle rank.[101] In her evidence, Vic S said she was ranked lower than the middle but for present purposes it is not necessary to finally decide that issue. It was necessary for the complainant to salute her own mother and brother, Ol S. Her mother also had another special place within the Group. She was a trained nurse and a trained midwife. However, she was thought to have another talent. She was called to do “readings” for the accused. The accused considered that Vic S could see into the future. It was thought that she would receive messages called “INS messages”.[102] INS messages are created when the universe gave signs about whether or not something felt right or wrong. In discerning the future, Vic S would read tarot cards. In coming to her conclusions, Vic S was also asked whether someone had the accused’s intention. She used tarot cards to determine an answer. When doing readings, making predictions about the future and receiving INS messages, it was necessary for Vic S to only wear light coloured clothes because those clothes attracted pure energy.
[101] T206.16.
[102] T206.32.
There were regular meetings within the Group and these were determined according to rank and age of the members.[103] For example, there were children’s meetings and adult meetings. These meetings would occur at least two to three times per week and sometimes there were more meetings if that was what the accused required. The consistent thread throughout these meetings and the behaviour of everybody in the Group was the observation of what was known as the accused, Taipan’s, intent. A member of the Group would observe Taipan’s intent if that member responded to any of the requests made by the accused without asking questions and without any hesitation.[104] The ranking structure within the Group meant that if a person with a higher rank than another person within the Group gave an order, then the person receiving the order understood and believed that the person giving the order had Taipan’s intent. It was therefore necessary for the person receiving the order, being a person lower in the ranking structure, to follow those orders and to do whatever he or she was being told. The issue was always whether or not a person was assessed to have the intent of the accused. That differed within families. For example, the complainant’s brother Ol S was always believed to have the intent of Taipan and he was of a middle rank.[105] He had the capacity to give directions to someone lower than him, those persons receiving those directions assuming and believing that, for example, Ol S had the intent of Taipan, the accused.
[103] T226.24.
[104] T208.6.
[105] T209.9.
The living arrangements at S Estate
I have adopted the approach outlined by Vanstone J and I do not think the approach of Doyle J is inconsistent with her Honour’s approach.
I have already outlined the content of the discreditable conduct notice. It is first necessary for me to decide whether I am satisfied beyond reasonable doubt of the alleged charged sexual offences committed by the accused upon the complainant. As I have already indicated, I am satisfied beyond reasonable doubt of the charged sexual offences under counts 1, 2, 3, 4, 5, 6, 7, and 8. I am satisfied, that under each of those eight counts, in respect of each other of the eight counts, each other count is circumstantial evidence which demonstrates a specific sexual attraction of the accused to the complainant as well as a tendency for the accused to act in furtherance of that sexual attraction. In satisfaction of the requirements of s 34P(2)(b), I am satisfied that the evidence has strong probative value having regard to the particular issues at trial and this is because it is admitted for a permissible use relying upon a particular propensity or disposition of the accused as circumstantial evidence of a fact in issue. In reaching my decision, I am guided only to a small extent by the decision of the High Court in Hughes v The Queen[635] on the operation (of the equivalent) of s 34P(2)(b).
[635] [2017] HCA 20.
The factual circumstances in Hughes were different and Hughes was charged with sexual offences against several children. The prosecution sought to adduce the evidence of each complainant in support of its case on each count. The issue in the case was whether it had proved beyond reasonable doubt that Hughes had a sexual interest in female children under 16 years of age and had a tendency to act upon that interest by engaging in sexual activity with underaged girls opportunistically, despite the possibility of detection. The question was whether that evidence was capable of having significant probative value in the trial for sexual offences involving underaged girls.
The facts of Hughes were that all of the complainants were aged between 6 and 15 years at the date of the offending and each complained of different types of offending. The trial judge admitted the evidence on the basis that the probative value of the tendency evidence was significant where a fact in issue in each count was whether or not the occurrence of the sexual conduct charge actually occurred. In this case, an issue in each count is whether or not the allegations of the sexual conduct charge actually occurred. At [16], the majority in Hughes held:-
[16] The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent [references omitted].
The starting point requires the identification of the tendency and then the fact or facts in issue which is adduced to prove the elements of the offences. A danger is where I may, as a trier of fact, give tendency evidence disproportionate weight or it may cloud my response to the tendency evidence. At [41] et seq, the majority in Hughes held as follows:-
[41] The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The High Court then considered the evidence peculiar to the appeal and concluded at [56] as follows:-
[56] The focus of the appellant's submission on the dissimilarity in the acts and the circumstances in which they occurred ignores the tendency that they were adduced to prove. The particular stated in the tendency notice, that the conduct occurred in the vicinity of another adult, served to highlight the appellant's willingness to act on his sexual interest in underage girls despite the evident danger of detection. It would have been more accurate to particularise the conduct as occurring in the vicinity of another person, since on some occasions it was another child who was in the vicinity. In EE's case, there was no evidence that any person was in the vicinity. Nonetheless, the evidence in support of that count was that the appellant encouraged EE to stimulate his penis as they stood kissing in the driveway of her family home, in circumstances in which EE was fearful that they would be seen. The evidence as a whole was capable of proving that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection.
The majority then held that it is necessary to consider the strength of establishing a tendency and held at [64] as follows:-
[64] The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. The Court of Criminal Appeal did not err in finding that the tendency evidence of each of the complainants and AA, BB and VOD met the condition imposed by s 97(1)(b) in relation to each count in the indictment.
My task, under s 34P(2)(b) is to critically analyse the basis put by the prosecution for the acceptance of discreditable conduct evidence and then I am required to identify the basis upon which any such evidence is to be used. As I have already said, the evidence must have a strong probative value having regard to the particular issues in the trial and I must be satisfied that the permissible use can be kept sufficiently separate and distinct from the impermissible use. The impermissible use would be a solely propensity reasoning basis that if the accused has already engaged in one or more forms of conduct, then he has engaged in another or other forms of conduct with which he has been charged because he is the type of person who would have engaged in that conduct.
In accordance with the decision of the High Court in Hughes, conduct adduced to prove a tendency is no longer required to possess sufficient, common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of the conduct. I am required to consider the extent to which the evidence supports the tendency and then the extent to which the tendency makes more likely the facts making up the charged offence. That assessment must be made in the background of all of the evidence in the matter.
In this case, and different from the charges in Hughes, one complainant has made complaints against one accused. It is therefore not necessary for me to give much consideration to the question of whether a pattern has been established. In light of my findings of guilt of the accused in relation to the first 8 counts, I am satisfied that a pattern has been established and that this pattern cogently increases the likelihood of the occurrence of the conduct of the accused in respect of each other count on the Information. I am satisfied that the evidence in each of those counts is cross admissible in relation to the other counts and supports the tendency and that tendency makes more likely the facts making up the charged offence.
I am satisfied beyond reasonable doubt that the accused had an inclination to engage in the charged sexual conduct with the complainant and he was willing to act upon that inclination irrespective of whether, as the defence submits, such inclinations might be unusual as a matter of ordinary human experience. I am satisfied that the accused behaved in such a way that there was an established pattern of conduct or modus operandi in relation to his dealings with the complainant. I am also satisfied, consistent with the decision in Hughes at [57] that the probative value of this evidence in respect of the first 8 counts on the Information lay in the proof of the tendency of the accused to act on his sexual attraction to the complainant and I accept that this discreditable conduct strongly rebuts any suggestion of the accused that the allegations of sexual misconduct were unworthy of belief and therefore should be rejected due to their improbability having regard to ordinary human experience. I am satisfied that this evidence may affect the probability of a fact in issue, that the accused was sexually attracted to the complainant and he was prepared to pursue that interest in her. I am satisfied that this is what the accused has done and for those same reasons.
I am also satisfied that, in addition to each of the elements of the charged offences, this evidence makes significantly more likely the facts making up the elements of the offence. I have formed that view in relation to each of the first eight counts because the evidence in relation to each supports the tendency and makes more likely the facts making up the charged offences. Also, the tendency can be expressed with a level of particularity: the accused had a sexual interest in the complainant; he was prepared to pursue that interest; his conduct or modus was generally the same namely sexual abuse of the complainant occurring in secret against the complainant who was sworn to secrecy, and who largely had no comprehension or ability to comprehend what the accused was doing to her.
Having made those findings, it is then necessary for me to consider the application of s 34R of the Evidence Act. I am required to identify and explain the purpose for which the evidence may and may not be used. I have earlier addressed this issue in part. If the evidence is essential to my process of reasoning leading to a finding of guilt, I may not use that evidence unless on the whole of it, the facts and proof of which the evidence was admitted are established beyond reasonable doubt. I must give a direction accordingly. I must explain the purpose for which the evidence may be used and the purpose for which the evidence may not be used. I must then address the question of the essentiality of the evidence for s 34R(2) Evidence Act.
I may not use this evidence to suggest that the accused is more likely to have committed the charged offences because he engaged in discreditable conduct. First, I must be satisfied beyond reasonable doubt of the guilt of the accused on each count and I have already made those findings on the basis that I have considered each count separately from the other counts and I am so satisfied beyond reasonable doubt.
The permissible use of this evidence is to show that the accused had an interest in the complainant and that he was prepared to pursue that interest. The evidence in relation to each count in respect of the other accounts supports the tendency of the accused to fulfil his sexual desires in relation to the complainant and I am satisfied that this tendency makes more likely the fact making up the alleged offences. I have fulfilled this evaluative task by the application of “…the… well known principles of logic and human experience as I use in an assessment of whether evidence is relevant.”[636]
[636] Hughes at [42].
I am satisfied that the evidence in relation to the counts is cross admissible as between the counts. In so deciding, I again remind myself that it is necessary to keep separate any impermissible use from the permissible use so that I must be satisfied that if I am to convict the accused on any particular count, I must be satisfied beyond reasonable doubt of his guilt on that count. I have done so and I am so satisfied. I am not able to convict the accused on any count merely because there is a significant amount of charged or uncharged conduct that may be proved against the accused arising out of the evidence of the complainant. It is therefore necessary for me to consider the evidence on each count separately from the other counts and this is what I have done in this matter.
Forensic disadvantage
At the time of trial, it was more than 15 years since the date of the commencement of these alleged offences. At trial, no submission was made to me on behalf of the accused that he has suffered a forensic disadvantage as a result. Recent authority suggests that it is not necessary as a Judge sitting alone to give myself a forensic disadvantage warning[637] but I will do so in light of the operation of s 34CB of the Evidence Act. Any warning that I give myself must comply with the matters referred to by Peek J in R v Maiolo (No 2).[638] I am aware of the real possibility of the accused suffering a forensic disadvantage in this matter. If the allegations had been made earlier, it would have been much easier for him to have either approached witnesses as to what they were doing on a particular day and also to have a clearer account from the complainant and to have a clearer position himself. As an example, arrangements may be made for the complainant to be medically examined. Another forensic disadvantage was that each of the witnesses were testing very old memories although, in general, none of those witnesses were unclear about their memories. Even so, I consider that the effluxion of time has created some difficulties in defending the allegations because there is no allegation, for example, of something happening on a specific day, date or time. It was impossible, for example, to ascertain whether or not the accused might have had an alibi and he might have been in different places at different times. None of this can occur because the allegations have, comparatively, come so late in the day. Although no submission of forensic disadvantage was made, I consider it as my duty as a trial judge sitting without a jury to take into account the difficulties that the accused may have had to test the complainant’s account in much detail, or his inability to more readily recall exculpatory circumstances, or items of evidence which might have rendered the alleged offence more difficult, more unlikely or impossible to have occurred. In turn, this might have better equipped his counsel to cross examine prosecution witnesses or to have advanced his own case by way of giving defence evidence.
[637] R v R, PA [2019] SASCFC 19 at [85].
[638] (2013) 117 SASR 1 at [179].
The accused did not suggest that he had any failure of memory for dates, times and places going back some 15 or more years. He was able to associate dates, times and places with particular events that happened. There appeared little difficulty for the accused and the witnesses called by him to identify the chronology of events connected with the Group. They were quite emphatic in their evidence about their recall of events.
Section 34CB of the Evidence Act provides that if there is a delay between the alleged offending and the trial which results in a significant forensic disadvantage to a defendant, I am required to identify that disadvantage and direct myself to take that disadvantage into account. It must be specific to the circumstances of the case and must not be in a form of a warning that is so general as to be meaningless. The warning must be tailored to the circumstance of the case where the delay gives rise to some real disadvantage to an accused. I take guidance from the Court of Criminal Appeal’s decision in R v W, PK.[639] Kourakis CJ wrote the judgment of the Court and his Honour held at [35], [36], [39], [41] and [42] as follows:-
[35] In R v Cassebohm, Doyle CJ outlined the requirements of a warning pursuant to s 34CB:
The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
[36] In R v C, CA, I observed:
The delay in this matter was substantial and I would accept that it resulted in a significant forensic disadvantage calling for a direction in accordance with s 34CB of the Evidence Act. The Judge did alert the jury to the appellant’s forensic disadvantage in general terms. However, s 34CB of the Evidence Act requires a direction explaining the forensic disadvantage faced by the particular defendant on trial. The general direction given by the Judge did not draw the jury’s attention to the contradictions, in matters of detail, of the complainants’ testimony, which might have been more effectively pressed but for the lapse of time.
[39] The Judge addressed the topic of forensic disadvantage in general terms but did not make a finding or give a ruling about whether the requirement of a “significant forensic disadvantage” within the meaning of s 34CB(2) had been satisfied.
[41] Section 34CB of the Evidence Act was clearly enlivened by the circumstances of this trial. The appellant’s counsel sought a direction pursuant to that section. The passage of time was, in and of itself, a reason to give such a warning. Some 40 years, or close to it, had passed. S’s evidence was that the offending occurred in the context of the day to day proximity of family life. Recollection of detail and of particular occasions will necessarily be difficult in those circumstances. The Judge explained the general difficulty occasioned by the lapse of time in defending accusations of this kind well when he told the jury that a complainant in a case like this is likely to be excused for deficiencies of recollection whereas the accused is in no position to dispute the recollection.
[42] However, s 34CB(3) of the Evidence Act requires more than a general explanation of that kind. It requires the direction to be tailored to the facts and circumstances of the particular case [citations omitted].
[639] [2016] SASCFC 5.
In reaching my conclusion in this matter, I will accept that it would have been easier for the accused to have approached witnesses about what he was doing on a particular day and to have given a clearer account of the circumstances if the complaint was made earlier. Even so, there was a particular flavour about the whole of the evidence given by the accused and the witnesses called by him. Each of the witnesses, including the accused, did not suggest that they were labouring under any disadvantage they might have suffered because of a defect in memory and so it becomes very difficult to fashion any direction to myself about other witnesses of fact; no one was identified or could be identified from the evidence given by the accused and his witnesses.
The same considerations apply in relation to whether there was a possibility that the memories of the complainant might be deficient because of an inability to remember matters of detail and so making it harder for the accused to test the complainant’s account in as much detail. The events complained of, apart from count 9 in respect of which I have found the accused not guilty, occurred at S Estate in circumstances which were narrowly confined. The accused denied that, for example, the complainant was one of the women who served him or that any women served him. However, as I have already determined, I have found that evidence is not truthful, reliable and accurate and I am satisfied, having particular regard to the evidence of the complainant and Vic S, that this was the case. The accused denied largely the whole of the prosecution case. He said, for example, the only person who ran his bath was his wife Ker S. As I have earlier indicated, that evidence is neither truthful, reliable, accurate or credible. Ker S for a time occupied bedroom 2 in the mansion house and then later went to live in the barracks. A long time before that there had been difficulties of a sexual nature between them for a period of time, and during that period, the accused had fathered two children with Dr P. I am satisfied on the evidence that the accused and Dr P earlier had a relationship in Kingston, South Australia and then at Kununurra in Western Australia.
There is also no suggestion of what might be the exculpatory circumstances such as the presence of other witnesses or circumstances or items of evidence which may have rendered the alleged offence more difficult, more unlikely or impossible to have occurred. I am satisfied that the alleged offences occurred in a very narrow scope of factual circumstances and no one has been identified in the evidence who might have been aware of the facts and so, to have identified and described the disadvantage. That is not to suggest that any burden falls upon the accused but in addressing these matters in the way that I am required, I am unable to identify any basis upon which there may have been exculpatory evidence which may have been available, that some further cross examination might have been made or that the accused could have put some other matters by way of further evidence.
As I have earlier indicated, in assessing delay, all memories are affected by delay but, having regard to the way in which the accused approached this case, there was no suggestion of any defect of memory caused by the delay. He denied each aspect of the alleged offending.
In the result, the appropriate approach is to state that I accept that the accused has suffered some form of forensic disadvantage as a result of delay, however, I am unable to point to any specific instance where he has suffered any disadvantage as a result. I am not satisfied for s 34CB(2) EA, this constitutes a significant forensic disadvantage. The accused was able to give evidence in denial of any sexual contact between he and the complainant. He said he had very clear memories of these matters and suggested, in contra-distinction to the evidence of the complainant that other circumstances applied in relation to his occupation of the mansion house at S Estate.
There was no evidence that the accused suffered any deficiency of recollection and it is not suggested that he was not in a position to dispute the recollections of the complainant. There was no suggestion that there were other witnesses whose recollections are affected but even in the absence of that evidence, I will assume that this is the position. I have also assumed that if the complaints were made earlier, a medical examination of the complainant could have occurred. Equally, I accept that no complaint was made because the accused required her to keep this conduct a secret. She did so and I am satisfied that in these quite unique circumstances of her position in the Group, this happened because of her belief that this was required. It was required because of the status of the accused in the Group at its apex and her own very lowly status. In the end, this consideration has only a neutral effect on my considerations.
I am not satisfied that, apart from the effluxion of time, the accused has suffered any forensic disadvantage and that identified disadvantage is of no significance in my determination because of the absence of any difficulty of the accused in giving his account of the event in his evidence. Notwithstanding my acceptance about the effluxion of time, I do not accept that there was any identifiable forensic disadvantage amounting to a significant forensic disadvantage suffered by the accused for those reasons. If I am wrong in that view and a significant forensic disadvantage has been suffered by the accused, then such disadvantage, when taken into account, would not affect my findings in this matter. This is because of my assessment of the strength of the prosecution case that I am satisfied has been proved beyond reasonable doubt.
Reliability of the complainant’s evidence
At the commencement of these reasons, I set out in detail the surrounding circumstances which pertained at the time of the commencement of the alleged offending. At the time, the complainant was a child. However, there is a further consideration. The complainant’s formal education ended at year 7. The only education she received after that time was something called “School for Success” which, on the evidence, could not be described as home schooling. Ol S said he received home schooling for three years after he left school at the end of the first term of year 7 however, that evidence is incorrect because he was working in Sydney by the age of 14. Also, he said from the time he left school, he was largely involved in operational matters in the conduct of S Estate. I am not satisfied that there was any formal home schooling conducted at S Estate. Even though no formal submission was made by the accused in relation to the topic, because of the findings that I have made, I consider that I should assess the complainant’s evidence with some caution because of those factual circumstances and whether that should be a reason not to be satisfied with the allegations and whether they are proved beyond reasonable doubt.
Earlier in these reasons, I described my approach in relation to the assessment of evidence and that I would apply the decisions of the High Court in Murray, Douglass, Liberato and the Court of Criminal Appeal decisions in Schulz and Ahmadi. Having done so, I am satisfied that the evidence given by the complainant before me satisfied me that she was a reliable, credible, compelling and truthful witness. She is a product of her environment and I have made due allowance for that situation. I have done the same for the accused however, as I have earlier found, my assessment is that the evidence of the accused on each of the first 8 counts is not reasonably possibly true, and has not raised a reasonable possibility.
I am satisfied that although she was seriously challenged, the complainant was not particularly troubled by cross examination and she gave her evidence in an open and honest manner. In the witness box, the complainant was forced to deal with a number of extraordinarily traumatic events in her life and the extraordinarily dislocating effect of the life that she had in the Group at the time. Although it is impossible to quantitatively and qualitatively measure these issues in regard to any particular individual, I considered that the complainant handled all of these matters admirably in the witness box. She largely but not completely maintained her composure. I have made allowances for the usual exigencies of life and the background of the complainant and I have done the same for the accused. I have taken the same approach to the whole of the evidence of each of the witnesses in light of my own knowledge and experience of life based upon the evidence of their backgrounds. As I have said so many times now, the accused does not under any circumstances shoulder any burden of proof and, in accordance with the authorities, I have assessed the whole of the evidence before me in reaching my conclusion about the reliability, credibility and truthfulness of the evidence of the complainant.
Evidence was led by the prosecution about the failure or refusal of a number of people to give witness statements to Police. As the evidence in this case developed, it became clear that those persons were still involved within the Group. It was therefore not necessary for any reason to be postulated about the failure to call these other witnesses who refused to speak to the police. I am unable to give that consideration any weight at all. I have already assessed the evidence of the accused and the witnesses called by the accused. I have indicated my significant dissatisfaction with that evidence and, in light of the fact that those other persons were still within the Group as identified by the accused, I feel no unease about the fact that those persons have refused to give any cooperation with the Police.
Similarly, I am untroubled by the absence of any independent support for the evidence of the complainant and that, this is said to be an oath on oath matter. As I understand the submissions put by Mr Edwardson QC, there is an aspect of brazenness about the accused’s conduct and then it ceased however that approach fails to comprehend the change that occurred when the complainant reached 18 years of age and made her own decisions as a more mature and worldly young woman to leave the Group. Even so, when Exhibit P5 is properly understood, it is an attempt by the accused to draw her back into the Group by holding out to her a threat about the fact she was leaving the Group. As I have earlier said, Exhibit P5 is important at a number of levels. It marks a turning point. In the letter, the accused was holding out a threat to the complainant that if she did not turn away from her independent ways, the differences would be irreconcilable and inevitably would lead to a “…fight…” It is a turning point because, on the defendant’s own case, to make this suggestion in such a way was anathema to the IHE and the reason for the Group.
I am untroubled about the absence of any independent support in respect of the allegations. Of particular importance in this context is the evidence of Vic S who said by use of the walkie-talkie system, she and Ben S would receive messages into their own living quarters at any time of the day or night usually from D H-S, requiring the complainant to attend upon the accused who lived separately within the rooms on the upper floor of the mansion house.[640] As Vic S said, and I accept, the Group members were required to align their thoughts with those of the accused because they were considered to be pure and right and good. She did not ever think or anticipate that anything untoward would happen if her daughter was called to the rooms of the accused in the middle of the night to do a healing. To the casual objective observer, this may now seem a surprising proposition, but that level of objectivity was absent because of the very arrangements formulated by the accused and observed by the Group members. Part of this was the deliberate distortion of the usual relationship between parents and children, a fact which the accused celebrated within his drafting of Exhibit P5.
[640] See Exhibit P2.
In that context, it could not be suggested that, although risky, the accused’s conduct was apparently brazen nor could it be suggested that it suddenly ceased. It terminated at the time the complainant made a decision to leave the Group. What followed, was the delivery of Exhibit P5 drawn by the accused which, as I have found, is the true reflection of the accused’s position in relation to the complainant.
Conclusion
I am satisfied of the following matters:
First Count: I am satisfied beyond reasonable doubt that between 24 October 2003 and 26 October 2004 at Aldgate, the accused had sexual intercourse with the complainant, a person under the age of 17 years, by inserting his penis into her vagina. I find the accused guilty of unlawful sexual intercourse with the complainant in breach of s 49(3) of the Criminal Law Consolidation Act 1935. I find the accused guilty on this count.
Second Count: I am satisfied beyond reasonable doubt that between 24 October 2003 and 26 October 2004 at Aldgate, the accused had sexual intercourse with the complainant, a person under the age of 17 years, by inserting his penis into her vagina. I find the accused guilty of unlawful sexual intercourse with the complainant in breach of s 49(3) of the Criminal Law Consolidation Act 1935. I find the accused guilty on this count.
Third Count: I am satisfied beyond reasonable doubt that between 24 October 2003 and 26 October 2004 at Aldgate, the accused had sexual intercourse with the complainant, a person under the age of 17 years, by causing her to perform an act of fellatio upon him. I find the accused guilty of unlawful sexual intercourse with the complainant in breach of s 49(3) of the Criminal Law Consolidation Act 1935. I find the accused guilty on this count.
Fourth Count: I am satisfied beyond reasonable doubt that between 24 October 2003 and 26 October 2004 at Aldgate, the accused had sexual intercourse with the complainant, a person under the age of 17 years, by inserting his penis into her vagina. I find the accused guilty of unlawful sexual intercourse with the complainant in breach of s 49(3) of the Criminal Law Consolidation Act 1935. I find the accused guilty on this count.
Fifth Count: I am satisfied beyond reasonable doubt that between 24 October 2003 and 26 October 2005 at Charleston, the accused had sexual intercourse with the complainant, a person under the age of 17 years, by inserting his penis into her vagina. I find the accused guilty of unlawful sexual intercourse with the complainant in breach of s 49(3) of the Criminal Law Consolidation Act 1935. I find the accused guilty on this count.
Sixth Count: I am satisfied beyond reasonable doubt that between 24 October 2003 and 26 April 2006 at Charleston, the accused had sexual intercourse with the complainant, a person under the age of 17 years, by inserting his penis into her vagina. I find the accused guilty of unlawful sexual intercourse with the complainant in breach of s 49(3) of the Criminal Law Consolidation Act 1935. I find the accused guilty on this count.
Seventh Count: I am satisfied beyond reasonable doubt that between 24 October 2003 and 26 April 2006 at Aldgate, the accused had sexual intercourse with the complainant, a person under the age of 17 years, by inserting his penis into her vagina. I find the accused guilty of unlawful sexual intercourse with the complainant in breach of s 49(3) of the Criminal Law Consolidation Act 1935. I find the accused guilty on this count.
Eighth Count: I am satisfied beyond reasonable doubt that between 24 October 2003 and 26 April 2006 at Aldgate, the accused had sexual intercourse with the complainant, a person under the age of 17 years, by inserting his penis into her vagina. I find the accused guilty of unlawful sexual intercourse with the complainant in breach of s 49(3) of the Criminal Law Consolidation Act 1935. I find the accused guilty on this count.
Ninth Count: I find the defendant not guilty.
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