R v Seppelt
[2020] SADC 111
•14 August 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SEPPELT
Criminal Trial by Judge Alone
[2020] SADC 111
Judgment of His Honour Judge Stretton
14 August 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - PROOF OF AGE
The accused was charged with the offence of Maintaining an Unlawful Sexual Relationship with a Child it being alleged that during a social relationship between his family and the complainant’s family over a two-year period between April 1994 and April 1996, at a time when the child concerned was 15 and 16 years of age, he maintained a relationship with the complainant whereby he committed two or more unlawful sexual acts with her, comprising acts of Indecent Assault and acts of Unlawful Sexual Intercourse with a Child. In the alternative, the accused is charged with five individual counts of Unlawful Sexual Intercourse.
Held: The complainant was an honest witness who told the truth. While one unlawful sexual act in the form of grabbing the complainant and forcibly kissing her on the lips was proven to have occurred while she was a child under the age of 17, with the passage of time and in all the circumstances, there is a reasonable doubt as to whether a second unlawful sexual act necessary for proof of the offence of Maintaining an Unlawful Sexual Relationship with a Child occurred unequivocally prior to the complainant’s 17th birthday. Accordingly, the accused is acquitted of Maintaining an Unlawful Sexual Relationship with a Child. The act of grabbing and kissing the complainant was an unlawful sexual act proven to have been committed while the complainant was a child. That conduct does not amount to sexual intercourse as defined in the Criminal Law Consolidation Act. Accordingly, the accused cannot be convicted of the alternative offence of unlawful sexual intercourse with a child. No other alternative offences were charged.
Criminal Law Consolidation Act 1935 s 50(1); s 49(3), referred to.
R v M, DV [2019] SASCFC 59; R v Mann [2020] SASCFC 69, applied.
BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150, considered.
R v SEPPELT
[2020] SADC 111
The accused Peter John Seppelt is charged with the offence of Maintaining an Unlawful Sexual Relationship with a Child. It is alleged that during a social relationship between his family and the complainant’s family, he maintained a relationship with the complainant whereby he committed a number of unlawful sexual acts with her, comprising acts of Unlawful Sexual Intercourse with a Child and Indecent Assault. In the alternative, the accused is charged with five individual counts of Unlawful Sexual Intercourse.
It is alleged that the offending occurred over a two-year period between April 1994 and April 1996, at a time when the child concerned was 15 and 16 years of age.
To respect the statutory requirement of confidentiality, in this judgement the child concerned is referred to as the complainant.
The Charges
INFORMATION
Peter John Seppelt is charged with the following offences:
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter John Seppelt between the 12th day of April 1994 and the 13th day of April 1996, at Springton, maintained an unlawful sexual relationship with (the complainant), a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards (the complainant), namely:
a) kissing her on her lips, on more than one occasion;
b) touching her bottom, on more than one occasion;
c) touching her breast(s), on more than one occasion;
d) causing her to perform an act of fellatio upon him, on more than one occasion;
e) performing an act of cunnilingus upon her, on more than one occasion;
f) inserting his fingers into her vagina; and
g) inserting his penis into her vagina, on more than one occasion.
In the alternative to the First count, Peter John Seppelt is charged with the following offences:
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter John Seppelt between the 1st day of April 1995 and the 13th day of April 1996 at Springton, had sexual intercourse with (the complainant), a person of or above the age of 12 years and under the age of 17 years, by causing her to perform an act of fellatio upon him.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
Peter John Seppelt between the 1st day of August 1995 and the 13th day of April 1996 at Springton, had sexual intercourse with (the complainant), a person of or above the age of 12 years and 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
Peter John Seppelt between the 1st day of August 1995 and the 13th day of April 1996 at Springton, had sexual intercourse with (the complainant), a person of or above the age of 12 years and under the age of 17 years, by performing an act of cunnilingus upon her.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Peter John Seppelt between the 1st day of August 1995 and the 13th day of April 1996 at Springton, had sexual intercourse with (the complainant), a person of or above the age of 12 years and under the age of 17 years, by inserting his fingers into her vagina.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Peter John Seppelt between the 1st day of August 1995 and the 13th day of April 1996 at Springton, had sexual intercourse with (the complainant), a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina.
Elements of the offences
The prosecution, who bear the onus of proof, must prove each element of a charged offence beyond reasonable doubt before a finding of guilt can be made.[1]
[1] In the course of this judgment reference is made to, and there is discussion of the defence case. Reference is also made to what may be ‘in dispute’ or ‘not in dispute’. No such references or discussion should be taken to infer or connote that the defence has any obligation or onus whatsoever, nor that proof of any matter may be or is assumed in the absence of ‘dispute’. The onus always remains with the prosecution to prove beyond reasonable doubt each and every element of any charged offence.
The elements of the offence of Maintaining an Unlawful Sexual Relationship with a Child are as follows:
1That the accused was over the age of 18 at the time of the particularised offence. This element was not in dispute.
2That the complainant was a child under the age of 17 at the time of the particularised offence. It was in dispute as to whether, if the court was satisfied that unlawful sexual acts were proven, they were proven to have occurred prior to the complainant turning 17.
3That the accused engaged in two or more unlawful sexual acts with or towards the child. Unlawful Sexual Intercourse with a child under the age of 17 is an unlawful sexual act. Indecent assault is an unlawful sexual act. It is in dispute as to whether such acts occurred.
4That there must be a relationship (not necessarily a sexual one) between the accused and the complainant in addition to proof of the commission of two or more unlawful sexual acts themselves.[2]
5That the relationship is maintained over the period of the alleged offending.
[2] R v M, DV [2019] SASCFC 59.
There was discussion at the outset of the trial as to the scope of the ‘relationship’ required for proof of the offence, and what is required for the prosecution to establish ‘maintaining’ that relationship. Uncertainty was said to have arisen because of a recent District Court judgment which appeared to substantially complicate proof of these two elements of the offence. The matter was resolved by the timely publication of the Court of Criminal Appeal’s decision in that matter.
In that decision, R v Mann,[3] the Chief Justice helpfully clarified the issues.
[3] [2020] SASCFC 69.
The court held that for a ‘relationship’ within the meaning of s 50, while more to the relationship than the alleged unlawful sexual acts simpliciter is required, that does not exclude the evidence of the particularised sexual acts from consideration of whether a relationship has been proved. The Chief Justice rejected the suggestion that there was any requirement to prove a relationship wholly separate from the sexual acts. The Chief Justice observed that the purpose of the offence created by s 50 of the CLCA is to relax the strictness of the requirement for particularisation on the charging of discrete sexual offences, and if protracted and repeated sexual conduct were to be excluded from a consideration of whether there is a relationship for the purposes of s 50, that very purpose would be undermined.
The Chief Justice observed that the relationship proscribed by s 50 of the CLCA is not limited to connections by blood, marriage or kinship but neither can it be merely a temporal, algebraic, geographic or other merely abstract connection.
Whether there is a relationship will be a question of fact for the court to determine. In approaching that task, the Chief Justice observed:
26The category of relationships falling within s 50 of the CLCA can never be closed because relationships vary widely and the very concept evolves over time with societal changes. The wide range of social and interpersonal relationships falling within the term include:
• familial, legal and de-facto, relationships;
• residential relationships;
• working relationships;
• sporting and recreational relationship; and
• professional relationships.
27The duration, frequency, nature and continuity of the interactions between two persons all relevantly bear on the question of whether a relationship exists or not. A single brief meeting with another person does not constitute a relationship. A predatory attack, in which an offender, otherwise unknown to the victim, forces himself on her, without more, is unlikely to constitute a relationship, even though the victim may have been stalked for some time and the attack repeated.
28Relationships are generally characterised by repeated interactions which generate patterns of interpersonal behaviour. The frequency and length of interpersonal interactions may change and may even be completely interrupted by absence for a period of time, but nonetheless the relationship may subsist and interactions resume, albeit perhaps not in the same form, when contact is made again.
29Importantly, what might colloquially be referred to as a ‘bad relationship’ may nonetheless still be a relationship. Relationships may be sympathetic or antagonistic, collaborative or competitive. They may be hierarchical or homogenous. The relative power and control exercised by one person over the other, and the relative independence or interdependence of the parties to a relationship, may also vary.
30In this case, there was strong evidence of a relationship. The Judge correctly found that the respondent, in many respects, fulfilled the role of a father for SW before he was taken into custody for the assault of M. A relationship of that kind is unlikely to be ephemeral. The relationship between the respondent and SW would necessarily have generated patterns of behaviour and attitudes towards each other which characterised their quasi-parental relationship. SW resumed a pattern of behaviour associated with a relationship of that kind when she brought her mother and the respondent breakfast in bed. The ball game SW and the respondent played on the occasion of his daytime visit, albeit corrupted by the respondent’s indecent assault of SW, is yet another example of the re-emergence of behaviours engaged in as part of the earlier quasi-filial relationship. Importantly, it was the authority and acceptance associated with that relationship which allowed the respondent free access within M’s home and to SW’s room in particular. It was the power imbalance associated with that relationship which in part explains why SW did not resist more strongly in her own room and in M’s bed.
31In deciding whether or not there is a relationship between an accused and an alleged victim for the purposes of s 50 of the CLCA, questions of fact and degree will necessarily arise. As I have already observed, the offender and the victim of a single predatory rape are not in a relationship. On the other hand, sexual offending against children is generally committed by taking opportunistic advantage of a relationship with them.
32The definition of persons in a position of authority in s 50(13) of the CLCA is an indication of the breadth of the concept of relationship for the purposes of s 50 of the CLCA. For example, a teacher, where the victim is a pupil at the school but not of that teacher, or a religious leader of a religious or spiritual group, may have very little personal interaction with the alleged victim other than the alleged sexual acts. Nonetheless, it is clear that s 50 of the CLCA necessarily contemplates that an accused in that position may be found to have a relationship with the victim for the purposes of s 50(1) of the CLCA. That relationship is formed by school discipline and the expected behaviours of students and teachers as a body, which are adopted by each member of the school community. So too for persons providing services in a correctional institution or a licensed residential facility. Sexual activity between a victim and a person in a position of authority, as defined, is engaged in in the context of the social, hierarchical and legal relationships so described. Moreover, the commission of two or more sexual offences against a victim, by a person in a prescribed position of authority, necessarily constitutes an important facet of their particular relationship, even if in other respects they had relatively few interactions.
As to what will constitute an accused ‘maintaining’ a relationship, the Chief Justice held that knowledge is the necessary state of mind. The required knowledge is of those acts of the accused, and the contextual circumstances in which they are performed, which have the effect of maintaining a relationship, within the meaning of that term in s 50 of the CLCA. The Chief Justice made clear that it is not necessary to prove that the accused desired, or subjectively thought of himself as being in, a relationship of any kind. Nor is it necessary that the accused knew that, or adverted to whether, his conduct fell within the definition of maintaining a relationship for the purposes of s 50 of the CLCA. Knowledge or awareness of the unlawfulness of conduct is seldom an element of an offence, and it is not an element of s 50 of the CLCA.
In short, the prosecution must prove that the accused had knowledge of the acts he or she performed and the contextual circumstances in which he or she performed the acts which objectively comprise a relationship, but an accused does not need to actively advert to, know or intend there be ‘a relationship’.
As indicated, both Unlawful Sexual Intercourse and Indecent Assault are unlawful sexual acts for the purposes of the offence of Maintaining an Unlawful Sexual Relationship with a Child. Further, the offence of Unlawful Sexual Intercourse is charged in the alternative. The elements of the offence of Unlawful Sexual Intercourse are as follows:
1That the accused was over the age of 18 at the time of the particularised alleged offence. This element was not in dispute.
2That the complainant was a child under the age of 17 at the time of the particularised alleged offence. It was in dispute as to whether, if the court was satisfied that unlawful sexual acts were proven, they were proven to have occurred prior to the complainant turning 17.
3The accused had sexual intercourse with the complainant. Sexual intercourse is defined to include penile vaginal penetration, fellatio and cunnilingus. This element was in dispute.
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The elements of the offence of indecent assault are as follows:
1That the accused assaulted the complainant. An assault is the intentional and unlawful application of force or violence to another person. The application of force need not be great. Any touching or handling is sufficient. The application of force must be unlawful, that is, without lawful justification or excuse.
2That the assault was accompanied by, or occurred in, circumstances of indecency involving a sexual connotation. Indecency is conduct which, by any reasonable contemporary standards, can only be described as indecent.
3In the case of a child complainant, consent is irrelevant as a child cannot legally consent to an indecent assault.
Legal Principles
As this is a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision. Whilst sufficient reasons must of course be given to properly explain the verdict,[4] a trial judge, sitting alone, is not obliged to express all the matters ‘which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law’.[5] To be clear however, the court has applied all the principles applicable to a criminal trial of charges of this nature that would be set out by way of all the standard directions to a jury. It serves no purpose to set out pages of standard form directions, however they have all been applied.
[4] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[5] Markou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, WA (2014) 118 SASR 382. The Court applies the principles helpfully set out by Lovell J at paras 6-25 of R v S, GJ [2012] SADC 150.
It is fundamental however, that the accused has, and at all times retains, the presumption of innocence. The prosecution at all times bears the onus of proof and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence and must do so based only on the evidence relevant to that offence. The court must and will consider each alleged offence separately, having regard only to the relevant and admissible evidence concerning that charge.
The accused elected not to give evidence at trial. It is fundamental to observe that was his legal right, and an important right legal right that every member of the community possesses. As such there can be no inference whatsoever against an accused on that account. There may be many reasons why an accused does not give evidence and a court must not speculate on those reasons. An accused’s silence in court is not evidence against the him, does not constitute an admission, does not fill any gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. A court must always bear in mind that it is for the prosecution to prove its case beyond reasonable doubt.
It is also important to observe that here has been a period of approximately 25 years between the alleged offending and the trial. That delay has resulted in a significant forensic disadvantage to the accused in that that there will be obvious difficulties for an accused in a case such as this in challenging and responding to allegations so long in the past. The court must take that forensic disadvantage into account when scrutinising the evidence for the prosecution and must take it into account when assessing whether the prosecution has proved its case against the accused. The forensic disadvantage in this case will include the following:
1There is now no independent evidence available as to the accuracy or credibility of the complainant’s account.
2The overall passage of time has led to the complainant being unable to remember a number of matters of detail. That factor will have disadvantaged the accused because of an inability to test the complainant’s account in detail.
3If there was less time between the events and trial the accused may have been able to remember back to the relevant time and remember what, if anything, happened or did not happen.
If there had been considerably less time between the events and trial, the accused might have been able to remember who he was with to be able to produce evidence discounting the evidence of the complainant and supporting his case in one or more ways. This would include an opportunity for the accused to interview potential witnesses who now with the passage of time would have little, less or no recall of events, or for the complainant to have had a medical examination, or for other forensic investigations to be undertaken. In this case those witnesses potentially included a Mr Ivars Wolfes who may have shed light on the timing of a drive to and from his house, in the course of which it is alleged that the accused performed unlawful sexual acts with the complainant; this was relevant to whether the complainant was over or under 17 years of age and hence relevant to whether such conduct amounted to unlawful sexual intercourse. Witnesses may also have been locatable who could speak to the colour of the accused’s Range Rover at particular periods, which is relevant to the complainant’s age at the times when she gave evidence that the accused had sexual intercourse with her in it, hence also relevant to whether she was under or over 17 years of age at the time.
Of particular relevance to this trial, memories will have faded, and independent evidence will be less available as to the age of the complainant at the time of the alleged unlawful sexual acts. That has particular relevance in this case as an element of each of the charged offences is the requirement that the complainant was under 17, the prosecution case being that the complainant was 16 at the time. If there is a reasonable doubt as to whether the complainant was under 17 at the time, the accused is entitled to an acquittal.
The Course of Trial
The prosecution case primarily consisted of the complainant’s evidence as to the alleged sexual acts. The prosecution called the complainant’s mother and the accused’s former wife as to the surrounding circumstances and the relationships between the two families, to establish that there was a ‘relationship’ and that it was ‘maintained’ by the accused, in the legal sense earlier discussed.
Also called was Ms Peterson, a teacher at the local school who gave evidence of an occasion when she and the complainant were being driven around the property by the accused, in the course of which the accused directed very sexually laden questions and conversation towards her in the presence of the complainant. That evidence was proffered to demonstrate a preparedness on the part of the accused to unhesitatingly discuss sexual matters in the presence of the complainant, supportive of the complainant’s evidence that the accused regularly directed sexual innuendo at her and that the accused was confident that he could speak and act sexually towards the complainant with no or little risk of her remonstrating or raising any alarm.[6] The complainant’s mother gave evidence of the accused making sexually inappropriate comments to the complainant, such that she had to intervene.
[6] Prosecution opening, T147-148.
Complaint evidence was led from both the complainant and her husband, that she initially disclosed her allegations to him in the latter part of 2017.[7]
[7] There was some inconsistency in the evidence led, discussed in detail later in these reasons. For that reason the prosecution ultimately disavowed any reliance on complaint evidence.
Evidence was led that police interviewed the accused at his property on 18 April 2018. At interview, the accused admitted knowing the complainant and her mother but maintained that the allegations were lies and that ‘I’ve got no idea where this is coming from ... end of story’.
The defence case tendered several documents concerning the vehicle in which alleged sexual acts occurred, and equestrian photographs and documents in part relevant to the timeline. The defence also called expert psychiatric evidence as to Borderline Personality Disorders, as the complainant agreed in cross examination that at some stage she had suffered from this condition. The accused did not give evidence at trial, however that was a legal right which he was perfectly entitled to exercise, and there can be no adverse inference whatsoever when an accused exercises that important and fundamental legal right available to every member of the community.
The Cases at Trial
The prosecution case was that the accused maintained an unlawful sexual relationship with the complainant by taking advantage of a relationship he had with her by virtue of the social and horse-riding connection between the two families. The prosecution case was that the complainant became acquainted with the accused through horse events, attending his property to ride horses, attending social events at his property and through the complainant’s mother eventually doing some work for the accused and his wife over time. The prosecution case was that in the context of that relationship the accused then committed a number of unlawful sexual acts with the complainant, including but not limited to the five instances of unlawful sexual intercourse set out as alternative counts in counts 2 to 6.
The defence case, as represented by the accused’s plea of not guilty, his police interview to the effect that it was all lies, and the matters put, raised and submitted by his counsel, was that the alleged unlawful sexual acts simply did not occur, and in any event, that the prosecution had not proven its case beyond reasonable doubt. The defence case included the submission that even if the sexual acts by the accused were proven, the prosecution had not proven beyond reasonable doubt that two or more of them occurred prior to the complainant’s 17th birthday, and hence the prosecution had not proven the two or more unlawful sexual acts with a child required to convict the accused of the primary offence.
Evidence at Trial – The Prosecution case
The complainant gave extended and detailed evidence in both examination in chief and in cross examination. To respect the statutory requirement to protect the complainant’s identity, the detailed background, relationships with third parties and history which was indeed the subject of extended evidence from the complainant, her mother and others will not be fully repeated in these reasons. The court will set out the primary allegations and a brief overview. The evidence has however all been closely considered.
The complainant gave evidence as to her childhood, her family, and how she came to know the accused. A significant feature of her life from a very early age was horses and horse-riding, and indeed she rode and competed in equestrian events and competitions from a young age. She was a member of pony clubs and was involved in volunteering in such organisations.
The complainant gave evidence that when she was around 12 or 13 years of age she first met the accused and his then wife Tracey Seppelt, at a horse-related occasion held on the accused’s property at Springton. The property was called Grand Cru Estate. She said she next saw them at a pony club ‘working bee’.
The complainant gave evidence that most weekends she would attend horse competitions and events that were held regularly around the state, and on several occasions the accused and his wife would also be there. She described how people would arrive on the Friday night, camp and socialise together over the following two nights, compete during the day, and return home on the Sunday afternoon/evening.
The complainant gave evidence that the second time she attended the accused’s property was a social event held for volunteers. There was a total of about 20 people present. Wine and food were served and the event went late in the evening. The complainant said that the accused served her and others wine, and there was what she described as standard social interaction with him.
The complainant said her mother became friends with the accused and his wife and she and her mother would visit the accused’s property and have social interaction with them. At some stage, the accused’s wife asked the complainant if she would ride a horse she was wanting to prepare for sale, to ensure the horse was exercised and in a good state to be sold, and the complainant agreed. This led to regular visits to the accused’s property both on the weekends and on occasion after school. Her mother would drive her there, then after she had exercised the horse, they would generally socialise with the accused and his wife.
In the course of attending the property she would also regularly talk just to the accused, and the topics would include horses, wine and grapes. The complainant said that the accused soon began to relate the conversations they had back to sex and the act of sex.[8] She said it would not necessarily be directed at her, but sexual references would be slipped in. The complainant said that he would regularly liken sex to hunting, with the ultimate thrill not necessarily being the act of sex but ‘in the chase’. When asked to give other examples of his sexual conversation with her, the complainant recounted an occasion of the accused directing her attention to a poster of ‘Wonder Woman’ on his wall, saying ‘If you had a gap like that, I’d marry you’, referring to the gap between the poster woman’s legs.
[8] T193 et seq.
The complainant gave evidence that when the accused spoke to her in this way, she would try to laugh it off or brush it off by saying something like ‘Peter, you’re terrible’. The complainant explained her reaction in the following way:[9]
[9] T199.2-28.
QYou told his Honour that in one instance you said 'Peter, you're terrible'.
AYes.
QWhen you said those words, what was your tone of voice like.
AJoking but firm to definitely lay down that it wasn't really an appropriate question to be - or appropriate conversation to be having with me.
QWhen you told his Honour that you would laugh it off, did that involve actual laughing.
ASometimes, yes.
QWhy did you laugh that topic off.
ABecause it wasn't a situation I wanted to be in and I didn't, you know - a question like that being asked to a14-year-old girl, at that stage 14 or 15 years I wasn't equipped, you know, to be answering those questions. I was quite shy as a young girl.
QOutside of these conversations that you have been giving evidence about, how did you get along with Peter Seppelt at the time you were riding (a named horse).
AI got along with Peter quite well. You know, I never had any issues with him, I never, you know, in regard to social interaction, I never had any, you know, arguments or anything like that so to speak, it was always amicable.
QDid you like him.
AYes.
The complainant then described the events of New Year’s Eve, 1994/1995. At that time, the accused and his wife were yet to have children. The accused and his wife held a ‘Beach Party’ themed New Year’s Eve event at their property. The complainant described it as quite a large party, with themed decorations. Wine and food were served, and over the course of the evening the accused supplied her with 3-4 glasses of wine. The complainant said that she became ‘merry’ after the second glass. As the evening wore on, she recalled having a more in-depth conversation with the accused and a friend of the accused. The accused then asked the complainant to come and help him carry some bottles of wine from his father’s house back to the party, and so she went with him. After entering the house and getting some bottles, she recalled the accused talking about an expensive new carpet his father had laid. She said the accused then approached her and attempted to kiss her;[10]
[10] T206.7-207.21.
QWhat happened when you were in that area of the house.
APeter was wishing to collect some more wine to take back to the party. He fossicked around in the shelving for a little while, getting bottles that he wanted to take back over to the party and continued to talk about this, this carpet that his parents had spent so much laying in the room. He, he then approached me and made physical contact with me. He tried to, to hug me and tried to kiss me.
QDid he say anything.
ANo, he didn't. I again brushed it off, I sort of wriggled out of the hold that he had on me. I brushed off the comment and I again, you know, again sort of quipped him for his behaviour but in a joking and calm sort of a - well, I suppose joking and jovial manner, laughed it off and went out the door and straight back over to the party. It wasn't something I commented on to anybody else. It was what I felt at the time was best left unsaid because of the problems that it could cause.
QIn what way did he try to hug you.
AI was standing, looking at the table at that point in time and he was still talking about this carpet that we were standing on and it was actually - initially it was behind me, he hugged me and then tried to turn me around and tried to kiss me.
QIn what way did he try and kiss you.
AOn the lips.
QDid he make contact with your lips.
AYes, he did.
QHow were you positioned in relation to one another when he made contact with your lips.
AFace-to-face, hard up against each other. I was, I was being held.
QAfter you wriggled out of that hold what did Mr Seppelt do.
AHe came over a short amount of time later, like very shortly later. Followed me back over to the party and proceedings for the evening continued on, conversations with people, etcetera.
QDid he have any wine when he came out of his parents' house.
AYes.
HIS HONOUR:
QYou mentioned that you sort of shrugged it off or laughed it off but made a comment to make the point as you described it and then you said you didn't mention anything at the party because it was best left unsaid because the trouble it might cause.
AYes.
QWhat do you mean by that.
APeter's marriage to Tracey firstly, and the fact that the behaviour was inappropriate.
That contact, whereby the accused is alleged to have grabbed the complainant, turned her around and held her hard up against him and kissed her on the lips may amount to an indecent assault within the particulars set out in count one, and if so, may comprise an unlawful sexual act for the purposes of count one.
The complainant said that over time she would interact with the accused and they would talk about many topics, but that there would almost always be a smutty undertone and things would be twisted around to sex, for example with references to scantily clad women depicted in posters having a ‘good set of breasts’.
The complainant said that the accused would also compliment her appearance and comment on her physical attributes with phrases such as saying she had ‘quite a tidy arse’. The complainant said that while she was quite shy at the time and would try to not engage in the conversation and giggle it off, in some ways she appreciated the compliments as they were flattering.[11]
[11] T212.
The complainant said that on several, she estimated eight or ten occasions at Grand Cru Estate when she attended there for parties or other visits, the accused stood behind her while they were facing a crowd at an event and placed his hand on her buttock cheek and cupped it for a few seconds. She said that she wouldn’t react at the time as she didn’t want others to see that sort of thing occurring.[12]
[12] T212-214.
The complainant gave quite specific evidence as to the various vehicles owned and used by the accused. As this evidence was said to have significance in terms of the timing of the alleged acts of sexual intercourse, and whether they occurred before or after the complainant turned 17, and accordingly whether those sexual acts were unlawful or not, I set it out in detail: [13]
[13] T214.20-216.10.
QDuring the time you were riding horses for the Seppelts at Grand Cru, did you observe motor vehicles on the property.
AYes.
QDid you observe Mr Seppelt drive motor vehicles.
AYes.
QOne or more than one.
ASeveral.
QWhat vehicles did you observe Mr Seppelt drive during the time you were riding horses for them at Grand Cru.
AInitially very early on there was a little white Suzuki, it was either a Suzuki Stockman or a Rocky, little four-wheel drive ute that Peter had, white ute. There was also a red Range Rover, two-door Range Rover that he had that he'd actually cut off and made into a soft top. There was also a green four door Range Rover that he had done the same thing with. There was a red Holden ute, older style Holden ute similar to the - I'm not sure what the model was but it was like that WB type style, the old square Holden utes. Initially they had a, like a cobalt blue Jag that was Tracey's main car and they also had, after selling that they had a blue Range Rover that became Tracey's or the family car, so to speak. There was also at one point, Tracey later on in the piece, later Tracey had a small BMW as well, all of which I had seen Peter driving.
QDuring the time you rode horses for the Seppelts, did you ever go driving with Mr Seppelt.
AYes.
QHow often.
AVarious stages throughout, I couldn't give you an exact figure on that but it was quite frequent to look around, look around things on the property. Have a look at the cross country course. Peter used to like to go for joyrides here and there over the area, not just, not just sort of on the property as well.
QCan I narrow your focus and attention to the period when you were riding horses for the Seppelts at the property.
AYes.
QWere there occasions on which you would go for drives with Mr Seppelt.
AYes.
QIn what circumstances.
ASometimes it would be to look at the cross country course that was being built at that stage. Other times it would be to burn, like, log piles or just check out things that were going on around the property, sometimes to look at, look at - poke around and look at livestock, etc., that they had on the place. Yeah, sort of pertaining to those sorts of things.
QYou're describing there drives that were contained to the Grand Cru Estate property.
AYes.
QYou told his Honour about looking at a cross country course that was being built. Where was that course being built.
AThat was being built in the area that I described to you yesterday as to where the cross country course for Grand Cru horse trials was.
QOn the occasions that you drove around the property with Mr Seppelt, what car or cars would he be driving.
AAt that stage generally it was the red Range Rover, the two door Range Rover. He started using his green Range Rover for similar activities when -
MR BOUCAUT: Can't hear, sorry.
A- he purchased that. He started to use the green Range Rover for similar activities once he had purchased that.
The complainant said that the accused would often drive her around the estate. She said that sometimes her mother would come too but quite often it was just her and the accused. She said they got on well. She said she and the accused would usually talk about whatever they were going to be doing around the property, about horses and about people, but that the accused would occasionally relate the conversation back to sex, his preferences regarding sex, women’s attributes and his concept of ‘the thrill of the chase’.[14]
[14] T216-217.
The complainant said that they would occasionally drive outside the property for some reason. She said that three or four of those occasions stuck in her mind. The first of those was on a day when she had been at Grand Cru estate to see some horses and been for a ride, subsequent to which together with her mother they had stayed on at the cellar door and she had had three or four glasses of wine. The complainant said that she also spent a small amount of time in the accused’s workshop where the accused was doing some work on a car.
The complainant said that the accused had only just purchased the green Range Rover and he wanted to take her for a drive in it. She said the accused was for some reason very focussed on taking her for a drive to see a friend of his named Ivars Wolfes. They both knew Mr Wolfes through involvement with one of the local pony clubs.[15] She agreed and they drove to Mr Wolfes’ house about 10 or 15 minutes away, on the other side of Springton Road. It was a small brick property on some acreage of land. The complainant said that everything was normal on the way there. When they arrived, the accused produced some drinks and the three of them talked and drank for perhaps 20 minutes to half an hour.
[15] T219.
The complainant was asked when this event was, and she replied that she was 16 and it was before the family moved to (country town T). The timing is relevant as it is not disputed that the complainant turned 17 years of age in early April 1996, and it is an agreed fact that the complainant’s mother took ownership of the property at (country town T) on 4 July 1996.[16]
[16] Exhibit P1, Agreed Fact 5.
The complainant said that after seeing Mr Wolfes she and the accused got back in his vehicle and drove back towards the accused’s property. Shortly after they commenced driving, and before they reached Springton Road the accused pulled the car to the side of the road and turned the conversation towards sex. The complainant said the accused leant over and started to kiss her. The complainant described the accused kissing her ‘in a penetrative fashion’ with his tongue in her mouth. She said that she did not initially respond but then started kissing him back. The complainant said that the accused placed one hand under her clothing to fondle one of her breasts, with the other hand fondling her backside. She described the accused placing her hand on his erect penis, which was at that stage still inside his pants. She said that this all took several minutes.
The complainant gave evidence that the accused then asked her to get into the back seat. He undid both their seatbelts and helped her through the gap between the two front seats into the back seat of the vehicle, then following her through. The complainant described how the accused then took his pants down and got her to perform fellatio, the first time she had ever done so. She said he told her to ‘suck his dick’, and then, holding her shoulders, guided her head down for that purpose. She did what he asked. She said it continued for two to three minutes whereupon he withdrew his penis, ‘wanking himself for a very short time’, and then she heard him make sounds indicating that he climaxed.[17]
[17] T226.
The complainant said that the accused pulled his pants back up and they got back into the front seat, with the accused telling her not to tell anybody because he appreciated having his ‘beautiful wife’ around, which she described as making herself feel ‘pretty ordinary’. The complainant didn’t say anything, saying that at that point she felt ‘fairly disappointed in myself’. They then returned to the property.[18]
[18] T228.
Those events are said to comprise an unlawful sexual act for the purposes of count one, and are said to comprise alternate count two, of Unlawful Sexual Intercourse.
The complainant then gave evidence that another drive also particularly stuck in her mind, as it was the first time she had sexual activity of the kind that occurred during it. As the time of these events is important, the court sets out the complainant’s evidence as to when this further significant drive and sexual conduct is said to have occurred:[19]
[19] T229.21-35.
QAfter the occasion of the drive to Ivars Wolfes's house, was there any further physical contact between you and Mr Seppelt.
AYes, at a later date, on another drive, is the most memorable occurrence for me.
QWhen did this event occur.
AThis was a couple of months after that. We had been for a drive. I can't remember whether it was to pick up feed or something to that effect.
QWhere were you living at the time.
AI was still living at (country town C) at that point.
QDescribe for his Honour what happened.
AAgain, we went for another drive. On this particular occasion, Peter pulled over and it was a very similar scenario in regard to how the (other) event started…
The complainant gave evidence that whilst she could not remember the espoused reason for that particular drive, it took place in the evening. She said that, as before, the accused was complimentary of her physical appearance, for example referring to attributes such as her eyes and/or her buttocks. She said that as before, the accused pulled over on a back road on the other side of Springton Road, whereupon they kissed, the accused put his hand up her shirt and played with a breast and there was ‘generalised groping’, which she admitted she returned.[20] She said that they did not kiss for long, as she recalled that for some reason ‘we were on a bit of a schedule, so to speak’. The accused got out of the car to urinate at some point. The complainant said that the accused encouraged her to perform oral sex on his penis, which she did. She said that they then got into the back seat of the vehicle. There, for the first time, the accused performed oral sex on her, penetrating her vagina with his tongue, then did the same with his fingers, stimulating her clitoris. After that, the accused had penile/vaginal sex with the complainant as well.[21] It was the first time that had happened. After a couple of minutes, the accused withdrew and ejaculated into his hand.[22]
[20] T229.
[21] T230-233.
[22] T235.
The complainant was asked whether anything was said after all this. She replied: [23]
AAgain, there wasn’t much of a conversation after that. There didn’t really need to be. I knew the rules, so to speak. I wasn’t going to be having a conversation about what had occurred with anybody. It was a pretty quiet drive home or back to, again, back to our original destination, back to Grand Cru.
[23] T233.33-38.
The complainant said that between these two drives, being the two drives she could particularly remember as they were the first instances of what occurred on them, she continued to see the accused. She said that during that time, although she could not be specific on times or dates, there were other less invasive incidents where the accused would for example feel her backside or grope her or make a comment in passing. There were also a couple of further drives that involved physical contact involving tongue kissing, touching her breasts and buttocks and her performing acts of oral sex on the accused.[24]
[24] T236-238.
The complainant said that between the two drives that she had described in detail, her mother started doing some work for the accused and his wife.[25]
[25] T239.
The complainant said that after the second of those drives, she continued to see the accused and sexual contact continued. She said that would involve kissing, groping, oral sex, and digital and penile penetration of her by the accused. She said there were only a very few occasions of penile penetration. She described those occasions of penetration in the following terms and was asked in detail about how and when the sexual contact with the accused ceased. Given the significance of the issue of whether the complainant was underage, and accordingly whether the sexual contact amounted to unlawful sexual acts, the court sets out the initial evidence in chief on this topic in full:[26]
[26] T240.24-246.10.
QAfter the occasion of the drive when you first had penile-vaginal intercourse, can you give his Honour an idea of how many times you had further physical interactions with Mr Seppelt that involved penile-vaginal sexual intercourse.
AVery few. The last one that I can remember was we had actually stopped - I had actually moved away to work and he invited me to join them - join him at Burnside for - at a house, like, for a meal, and we went out to dinner and returned to the house that they had at Burnside and had intercourse there. That's - yeah, I mean, that's the only incident that I could specifically pinpoint, so to speak, out of the several instances that occurred after that.
QOn the occasion at Burnside you mentioned going out to dinner, who went out to dinner.
AJust Peter and I.
QHow old were you when that incident occurred.
AAt that stage I was 19, it was quite - I hadn't had any real contact with Peter and Tracey for quite some time and it was a call out of the blue that sort of led to that.
QCan we work backwards from that event.
AYes.
QYou told his Honour that leading up to that you'd stopped and you'd moved away to work.
AYes.
QWhen you said 'we'd stopped', what did you mean by that.
AThat work had led me to a different point of residence. I had actually by then, in my 17th year, I started school at Birdwood High School and we moved to (country town T) for the first part of that 12 month period in '96 when I turned 17 in the April. I had been boarding with a lady by the name of (name given) in Birdwood with my horses there and by that stage we had actually bought or had begun purchasing the horse (named horse), so my need to be at Grand Cru to work horses had sort of ended.
QCan we break some of that down with a view to trying to put some parameters of time around various events. You told his Honour yesterday that you attended (country town C) School through to year 11.
AYes.
QDid you complete year 11 at (country town C) School.
AYes.
QWhere did you attend school after (country town C) School.
ABirdwood High School.
QHow long did you attend Birdwood High School.
AFor the first half of 1996, just over the first half sorry.
QWhat schooling year or part thereof did you undertake at Birdwood High School
AYear 12.
QIt is perhaps evident from what you said but did you complete year 12.
ANo.
QDid you commence year 12 at Birdwood High School at the start of the schooling year for 1996.
AYes.
QWhen you started attending Birdwood High School, where were you living.
AAt (country town C) still at that point.
QAt some stage did you move from (country town C), by that I mean did you move from the house at (country town C).
AYes.
QWhen did you move from the house at (country town C).
AI moved from the house at (country town C) to start my schooling year. Sorry, no, I actually did drive back and forth for a small amount of time, commuting to Birdwood High School. There was another student from (country town C) that was doing the same and we were sharing the trips and we would pull in to ride horses two or three times a week on the way home from that initially at the start of year 12.
QFor how long approximately did you commute from (country town C) to Birdwood High School.
APerhaps a month, month and-a-half into the schooling year and then to a residence at (named person), sorry I'm just piecing it back together.
QWho is (named person).
AA lady that we knew through horses and through horse sports.
QWhere did (named person) reside.
AShe lived just out of Birdwood, it was actually - I was actually within walking distance of the school from where she lived, keeping in mind that I'm fairly active, it was a long walk but.
QHow long did you live with (named person).
AI lived with (named person) until approximately the middle of the year and then I began attending school from (country town T), catching the bus to school at (country town T).
QDid your mother purchase a property at (country town T).
AYes.
QAt some stage did you go to live at that property.
AYes.
QOnce you moved to the property at (country town T) were you still attending Birdwood High School.
AInitially, yes.
QFor how much longer did you attend at Birdwood High School once you moved to (country town T).
ANot very long at all, maybe, maybe a few weeks.
QDid your mother also move to (country town T).
AYes.
QDid your sister move to (country town T).
ANo, my sister wasn't with us at (country town T).
QWhen had your sister left the picture, so to speak.
AShe moved to (named country town) initially with my father. He was up there for a short stint of time and she attended school at (named country town) and then when she was, I think she was about 13, I can't be a hundred percent sure on how old she was exactly when she left because (country town C) School was right through from, as I mentioned, right through from year 3 for her, four for me, to year 11 for us.
QBy the time you started attending Birdwood High School had the drive to Ivars Wolfes' house occurred.
AYes.
QBy the time you started attending Birdwood High School had the drive on which you first had penis/vagina intercourse with Mr Seppelt occurred.
AYes.
QYou turned 17 on (day given) April 1996.
AYes.
QWere you attending Birdwood High School at that time.
AYes.
QFocussing on the time you attended at Birdwood High School, were you still seeing Mr Seppelt.
AOther than in the initial stages where I was dropping into work, horses on the way home from school and (named person) would often accompany me with that unless he'd taken his own vehicle for whatever reason. Once that ended, then no, I didn't really have much contact with Peter other than, you know, in passing or at social occasions or horse events that would - would involve us all being there. Incidents where we were doing a little bit of ring announcing perhaps at (a named horse association), those sorts, those sorts of days.
QWhile you were attending Birdwood High School was there any physical interaction between yourself and Mr Seppelt.
OBJECTION: MR BOUCAUT OBJECTS
MR BOUCAUT: Same problem.
HIS HONOUR: I allow the question on the basis that I'm sure Ms Matteo will go from the general to the particular.
QWhile you were attending Birdwood High School was there any physical interaction between you and Mr Seppelt. By that I mean interaction of a sexual nature.
AI can't remember. I know that when I was working horses there and as I stated (named person) was always present as well so - but I can't remember. I can't pinpoint any particular times that would stand to mind or anything that happened that would stand to mind.
QPutting to one side for a moment the event that occurred at Burnside when you were 19, can you tell his Honour when your sexual interactions with Mr Seppelt came to an end.
AIt was, well, basically before I had started at (country town C) - at Birdwood High School.
QHow did your sexual interactions with Mr Seppelt come to an end.
AI remember mum and I having a discussion or mum having a discussion with Peter about - and I was present - about what we were going to do in the next year in relation to my accommodation, and Peter had offered the use of the loft for me to perhaps board and commute to school on the school bus from Grand Cru.
QThis was a conversation that you participated in.
AYeah, Peter had the conversation with my mother, but in front of me.
QWhich loft are you referring to.
AI believe it was the loft above the garage - well, it was the loft above the garage he was talking about initially, but there was some talk of renovating the rotunda as well for mum and I to perhaps reside in while we were sorting out our situation between the sale of one place and finding another, should it come to that the house hadn't sold at (country town C) at that point, so we were just working through options, I suppose.
QMay we take it that neither of those options came to fruition.
ANo, Peter had apparently had a conversation with his father and his -
QI'll stop you there.
AYep.
QAnd only ask you to tell us about conversations that you participated in.
AOkay.
QSo we will just pause there. You were describing to his Honour when and how your sexual interactions with Mr Seppelt came to an end.
AYes. So we had had the discussion about me possibly residing there to be able to study and that idea was - didn't come to fruition, so the opportunity for those engagements was not going to be there.
QIs it possible for you to pinpoint in your mind a particular moment in time when the sexual interactions ceased.
AI couldn't pinpoint a specific event, no, but I can pinpoint the conversation that, sort of, marked the end of that, and that was where we were told that boarding at Grand Cru would not be a viable option.
QAre you able to put some timing around that conversation.
ARight towards the end of my year 11 schooling year.
The complainant said that the final episode of sex with the accused, when she was aged 19, was several years after the previous one.
The complainant also gave evidence about (a named horse) that her mother eventually purchased for her from the accused. She said that she started riding and competing on the horse in 1994, and over time was riding and keeping it fit for the accused and his wife. She said she believed that her mother purchased it towards the very end of 1995.
She identified a photo of her on that horse as being at an event at Rosk Hill during either the start or the end of the winter riding season in 1994.[27] It was tendered as exhibit P6.
[27] T250-251.
The complainant identified a photo of her on that same (named) horse as having been at Loxton Horse trials in 1996, saying that she could however not be 100% sure of the year. That photo was tendered as P7.
The complainant said that by reference to the saddle and bridle, P6 was before her mother bought the (named) horse, and P7 was after she had bought the horse.[28] She said that various other features of the photos indicated there was perhaps 6 to 9 months between them.[29]
[28] T252.
[29] T254.
Other photos of her riding the horse were also tendered, and the complainant whilst venturing views on their chronological order was unable to be certain when they were taken.[30]
[30] T256.
The complainant gave evidence that her mother commenced working at the accused’s house but could not be specific as to when apart from it being after the birth of the accused’s children, and thinking it may have been when she commenced her year 12 schooling at Birdwood High School.[31]
[31] T256-257.
The complainant gave evidence of an event when the accused accompanied the complainant and her mother to Adelaide to see an African musical performer, and then got her into the casino by walking in with his arm around her. She said she was 15 at that time.[32]
[32] T259.
The complainant gave evidence of an event when the accused took both her and a woman who was one of the teachers at (country town C) School on a drive after one of the horse events. She said it occurred in the accused’s red two-door Range Rover, with the adults in the front seats and her in the back. The complainant said that during the drive the accused turned the conversation towards sex, this time directed at the woman in the front seat. She said the accused again commented about sex, and the thrill of the chase being more exciting than the act of sex itself. She said the woman withdrew at the comments, and that she the complainant said, ‘Peter that’s a terrible thing to say ...’ to the teacher. The complainant said that this was sometime after 1995.[33]
[33] T261-262.
The complainant then described how she came to report the matter to police. She said that she had had ‘more than one’ conversation about it with her husband wherein he had discussed abuse he had suffered as a child, and consequently he asked her whether anyone had been inappropriate with her when she was young. She was reticent but he persisted, and she eventually told him about the sexual relationship she had with the accused ‘when she was aged 16’. He told her he would like to see her do something about it and report it. She said the initial conversation was in the car during a drive, and that she couldn’t remember the further conversations.[34]
[34] T263-267.
The complainant was then cross examined for an extended period. The court will not repeat all or most of the cross examination, but has had regard to it all. Some matters particularly emphasised by the parties will be mentioned.
The complainant agreed in cross examination that there was an initial disagreement with her husband as to her reporting the matter, with him wanting her to go straight to the police but with her needing time to think about it and get her head around it. She agreed she became anxious and a little angry at being asked to recall, and then actually recalling events which she had never spoken about to anyone before.[35] She agreed that his telling her that he wanted her to go to the police put her into a state of anxiety.[36] She said she didn’t go into any detail in the car trip, and agreed she had also had subsequent conversations with him about it subsequent to the initial discussion in the car.[37]
[35] T278-271.
[36] T284.
[37] T279.
The complainant was cross examined about her mental health, and she agreed that incidents, including the one before the court, had affected her mental health over the years. She said that on occasion she could become overwhelmed with emotion, agreed she had sought treatment, and that about 10 years prior to trial she had been diagnosed with Borderline Personality Disorder.[38]
[38] T281.
The complainant was cross examined about the green Range Rover. This issue was relevant to the timing of the first instance of alleged unlawful sexual intercourse, as during examination in chief the complainant said that the first instance of unlawful sexual intercourse occurred on a drive whereby the accused wanted to take her for a drive in his recently purchased green Range Rover.
The complainant acknowledged in cross examination that she had given evidence that the trip to Mr Wolfes’ place (in which the first instance of unlawful sexual intercourse had occurred) was in the green Range Rover which had been modified into a convertible vehicle with a soft top.[39] She agreed she had said the second instance of unlawful sexual intercourse she had described also occurred in the green Range Rover. [40] She said she believed that the accused purchased it in that state, although she could not be certain that he had not modified it himself. The complainant identified the vehicle as being depicted in two photos of a green Range Rover put to her. Those photos were tendered as D1 and D2.[41] The complainant was then shown a photo of a light-coloured Range Rover and responded that she had no recollection of it. She agreed that the accused’s two children were in the light-coloured vehicle, with Melinda aged perhaps two or three.
[39] T299.
[40] T308.
[41] T300.
The birth certificate of the accused’s child Tristan was later tendered, indicating a birth date for Tristan of 12 August 1996 and a birthdate for Melinda of 4 January 1995.[42] The complainant’s 17th birthday was early April 1996. As Tristan was born four months after the complainant turned 17, this means that any photograph containing Tristan must have been taken after the complainant turned 17.
[42] Exhibit D7.
The photo of the light-coloured Range Rover containing Tristan and Melinda was tendered as D3. The complainant agreed that the green Range Rover depicted in photos D1 and D2 had the same registration number as the light-coloured Range Rover depicted in D3. A further photo of a cream coloured Range Rover with the same registration number, with a male child next to it, was also tendered as D5. A photo of a green Range Rover with the trim removed in a workshop was marked for identification and later tendered. The removal of trim is consistent with a vehicle which is being painted. That photo contained a young Tristan. The complainant agreed that the accused would work on cars in his workshop at Grand Cru Estate, although she said she did not see signs of the accused changing the colour of the bodywork of any of his vehicles in his workshop. She agreed that there was only ever one green Range Rover.[43]
[43] T304-305.
It was put to the complainant that when taken together, the photos appeared to depict the cream coloured Range Rover being used by the family after the birth of Tristan and then being repainted green at some point after that, as Tristan is depicted as a very young child in the vehicle when painted cream, then as an older child when it is green. Whilst the complainant acknowledged that the vehicle appeared similar and had the same registration number, she said she had no real way of knowing just from the photos and in the absence of registration details and VIN numbers, whether it was the same vehicle.[44]
[44] T305.
The complainant was shown a blown-up version of D4, the green Range Rover in the accused’s workshop minus much of its body trim, depicting a small child present. She agreed the child appeared similar to Tristan.[45]
[45] T320.
The complainant agreed that she continued to ride horses at Grand Cru Estate until Tristan was a small child, able to move about under his own steam. She said she also had horses on agistment at Grand Cru Estate after that time.[46]
[46] T308.
The complainant was asked about the (named) horse her mother purchased from the accused and replied that she thought it was just after she started year 12. She said she had ridden that horse for some time prior to the purchase, and agreed with a proposition put to her that 6 or 7 months would be an approximation, with the photo of her on the horse at Rosk Hill (P6) being ‘the middle of the year before’. She repeated her evidence in chief that the Rosk Hill event and photo were from ‘approximately 1994’.[47]
[47] T310-312.
The complainant was shown the originals of P6 and P7, and agreed they were her mother’s photos of her riding the horse in question. It was put to her that the original of the Rosk Hill photo P6, of her riding the (named) horse, was ostensibly endorsed on the back ‘24 March 1996’. She replied that she thought it was earlier than that.[48] In relation to P7, she agreed it was endorsed on the back as occurring on 23 June 1996.[49] She said that P8 which included her in her state representative colours, had been taken between the two photos, which she maintained was in 2015.[50]
[48] T313.
[49] T314-315. The original of P7 was tendered as D8. The original of P6 was tendered as D9.
[50] T316.
The complainant was then cross examined as to when the second of the occasions in the green Range Rover that she had described had occurred. She said she could not recall the exact month of the year that that had occurred.[51] The complainant was asked about whether the second of the events she had described occurring in the vehicle was before or after the family had moved to (country town T) during the 1996 year. This is of significance, as it was agreed that the complainant had turned 17 in April 1996. The complainant replied she was sure that that occasion of sexual contact had occurred before the move to (country town T).[52] The complainant agreed she had suggested to police that it was just after her mother had purchased the property at (country town T), but that was an incorrect assumption by her at the time she gave the statement, an ‘error in time judgement on my part’.[53]
[51] T324.
[52] T326.
[53] T327, 338.
The complainant agreed she had said in paragraph 19 of a statement given to police that the drive where the accused had vaginal sex with her was in about September 1995, and a little later in paragraph 20, that shortly after that event her mother bought the (country town T) property. She agreed that in a later statement to police she referred to that earlier statement and said:
In para. 19 I mentioned the occasion when Peter had sexual intercourse with me. I remember it being around September as mum had just bought the house at (country town T) and mum was concerned where I was going to school for my year 12.
The complainant said that was not the way it occurred. She said that she had realised that when she had read through her statements prior to the current trial. She said that she had previously found it hard to read through the statements, so had not done so properly previously.[54] The complainant agreed that she had initially believed when she gave the statement that the second sex incident happened after the purchase of (country town T).[55]
[54] T342.
[55] T343.
The complainant agreed that the first Grand Cru horse event was in 1996, and that the accused drove her and her horse to a horse event at Wirrina in late 1996, after she had dropped out of high school during that year.[56]
[56] T346.
The cross examination concluded with defence counsel putting to the complainant that she had lied about all the sexual contact she claimed occurred between her and the accused.[57]
[57] T348-349, 352.
The next witness was the complainant’s husband. The complainant’s husband gave evidence as to his marriage to the complainant and their family history. He gave evidence that in 2017, he had a conversation with her about the accused. He said the complainant was upset about something and he asked her whether the accused had sex with the complainant when she was a kid, to which she replied yes. He gave evidence that she told him that the accused had taken her for a drive and then on the return journey pulled over, kissed her, fondled her, asked her into the back seat and got her to perform oral sex on him. The complainant’s husband said she told him about another time when they had gone for a drive and a similar thing had happened leading to vaginal sex. He said the conversation occurred at home on their sofa. The prosecutor asked the complainant’s husband whether there had been any other occasion she had mentioned it and he replied, ‘she had mentioned it another time, but not in depth and sort of passed over it and I’m having trouble recalling but I know she had mentioned it beforehand, that’s why I asked her on that evening if he had done that when she was a kid’.[58]
[58] T367.
It is relatively plain from this evidence that the complainant and her husband were referring to different occasions when they discussed the events. The complainant was referring to the first time it was ever mentioned, being the brief occasion in their car. The complainant’s husband was talking about a discussion at a later time at their home, when the details were elaborated. Their evidence was not inconsistent, when understood in that way. Due however to this misunderstanding by the complainant’s husband, the prosecution withdrew any reliance on complaint evidence.
The next witness was the complainant’s mother. The complainant’s mother gave evidence as to the history of her family, including the birth of the complainant in April 1979. The complainant’s mother gave evidence that by the time she and the complainant were living at (country town C) and having contact with the accused, she was separated from the complainant’s father. The complainant and the complainant’s sister lived with the complainant’s mother, but there was periodic access for the children with their father. The complainant’s mother gave evidence that the complainant completed year 11 at (country town C) School then went to school at Birdwood High, dropping out part way through year 12. In her words ‘everything went downhill for her then’.
The complainant’s mother described how the family had been involved in horses all their lives and that the complainant had been riding from a very young age. The complainant’s mother gave evidence that through horse riding they came to attend the accused’s property at Springton. The complainant’s mother said that the complainant participated in horse riding at Grand Cru Estate and that they would also see the accused and his wife at horse riding events regularly. Over time they had a lot to do with the accused and his wife, both at their property and at horse riding events in other places. She recalled meeting and socialising with the accused and his wife at the Loxton horse event and a number of other horse related events and occasions. She said that from about 1993, the complainant started riding horses for the accused and his wife and that continued on for 18 months to two years.
The complainant’s mother said that eventually she started doing part time work for the accused and his wife, in particular after the birth of her first child. She and the complainant would regularly socialise with the accused and his wife, in particular after the complainant had worked the accused’s horses as per the arrangement.
The complainant’s mother, with reference to the tendered photographs, gave evidence that the complainant rode the (named) horse at an event at Rosk Hill in 1996 after which she purchased that horse for the complainant. She also gave evidence that the complainant rode in her first competitive horse event at Grand Cru Estate in around Easter 1996. The complainant’s mother gave evidence that Grand Cru Estate would hold parties and New Year’s eve’s events which she and the complainant also attended. The complainant’s mother gave evidence that there was a New Year’s Eve party at the end of 1994, start of 1995 at which she and the complainant attended.[59] The complainant’s mother gave evidence that that party had a ‘beach party’ theme and went late through the evening.
[59] T393.
The complainant’s mother gave evidence that the accused would often spend time with the complainant getting the horses ready for her to ride or just socialising. She gave evidence that the accused would make particular comments to the complainant, so much so that she once had to intervene. She recalled the accused telling her daughter that he would ‘teach her about life, he’d be the one to teach her’ together with further remarks that she thought were inappropriate such as ‘you should be with me’. Eventually it got to the point where she felt she had to intervene, so she told the accused ‘look, she’s only young, you can look but you can’t ever touch’.[60]
[60] T395.
The complainant’s mother also recalled the event at the Festival Theatre when the accused took them into the casino, as also described by the complainant.
The complainant’s mother also gave evidence that the accused had a number of Range Rovers. On her recollection, he had a blue one, then after that a green one and a red one.
The complainant’s mother indicated that they were continuing to see the accused and his wife at the point when their younger child Tristan was born, albeit not as often as they had moved to (country town T) by that time.[61]
[61] T398.
In cross-examination, the complainant’s mother was asked whether she had ever seen a lighter coloured Range Rover at Grand Cru Estate and she replied she vaguely recalled a pale coloured one. She added that she wasn’t interested in cars and had showed no interest in them at the time. She was shown D3, the photo of the lighter coloured Range Rover and agreed that the accused’s wife together with the children, including Tristan were depicted in that photograph. Through the witness, the defence tendered a letter which dated the Wirrina Cove event as December 1996. The complainant’s mother agreed that was the event to which her daughter had been conveyed by the accused. The complainant’s mother was asked to confirm that the complainant dropped out of school in 1996, replying that she couldn’t really remember as she was not good at dates. She did confirm that the complainant had trouble at school but only in year 12.[62] She described her daughter’s difficulties as just not handling things, almost throwing her hands up in the air, saying it was all too hard, and being suddenly overwhelmed. She said that the decline in her daughter’s school performance, generally speaking, coincided with the move to (country town T).[63]
[62] T403.
[63] T405.
In re-examination on the topic of when the complainant started becoming apparently overwhelmed, the complainant’s mother gave evidence that prior to midway through year 12 the complainant had been an outstanding student, indeed winning awards.[64]
[64] T408.
The next witness was Ms Peterson. Ms Peterson gave evidence that she had been a teacher at (country town C) School between 1982 and 2012. She gave evidence that during the course of her duties she became acquainted with the complainant as a student at that school. She gave evidence that on a single occasion she met the accused at an event at Grand Cru Estate. She attended with her husband who was displaying some of his woodwork at the event. The complainant was also at the event. In her estimation, the complainant was 16 years of age at the time. Her recollection is that the accused’s wife was pregnant at that time. At some stage in a conversation with the accused, he offered to show her a piece of art or some other item on the property and so she, the accused and the complainant got in his vehicle to drive around the property to see that item.
In the course of the drive, the accused suddenly asked her about her sex life, told her how large his penis was, suggested that her husband could not get it up anymore and talked to her about sexual activity. She responded by refusing to discuss her sex life with the accused, but notwithstanding that he persisted. She started to become very concerned, thinking ‘how do I get out of this? I have no idea where I am’. Her recollection was the conversation persisted for about 20 minutes. As soon as they returned to the party, she left with her husband. In cross-examination, Ms Peterson gave evidence that she had no contact with the complainant in recent years and that her clear impression was that the accused had been making a sexual approach to her.[65]
[65] T425.
The next witness was the investigating police officer, Detective Brevet Sergeant Rethus. Detective Rethus gave evidence that she was allocated the matter for investigation on 17 November 2017, she then obtaining statements from the complainant and witnesses, investigating generally, and eventually attending the accused’s property at Springton on 18 April 2018. Detective Rethus gave evidence that she tried to locate Ivars Wolfes and whilst she was able to establish that a person of that name had existed, she had been unable to locate and identify him for the purpose of the trial. She gave evidence of further investigations conducted.
Through Detective Rethus a schedule of registered motor vehicles relating to the accused, as at 2 May 2019, was tendered as P10. That schedule established that the motor vehicle registration system, when searched for vehicles whose registrations in the accused’s name expired at any time after 1 January 1990, established the accused owned a Range Rover manufactured in 1983 whose registration expired in 2002. Three Land Rovers manufactured respectively in 1949, 1963 and 1974 were owned by the accused whose registrations expired in 2005, 2011 and 2012. The accused owned a further Range Rover and two Land Rovers, however their manufacturing dates postdate the relevant dates for the purpose of this trial.
Detective Rethus interviewed the accused and a DVD of that interview was tendered as exhibit P11. In that interview, Detective Rethus put the allegations to the accused and he responded, ‘um lies’ and ‘I have no idea where this is coming from’ … ‘yes, she was here, yes she rode my horse, she actually ended up buying my horse or gave it to her whatever’ … ‘whatever, the only time I think I’ve been in a car with her is initially when I used to drag the horse around for her. You’ve just completely blown me out of the water’ … ‘I have no idea where, why where or why this is coming, um from’ … ‘end of story’ … and ‘I actually thought it was someone who hated me’.
Agreed Facts were tendered in relation to the complainant’s enrolment at the (country town C) School and the years and grades she was in at that school. It was also an Agreed Fact that the complainant was enrolled at the Birdwood High School for the calendar year 1996, withdrawing on 31 July 1996. It was a further Agreed Fact that the complainant’s mother purchased the (country town T) property in July 1996.
The final prosecution witness was the accused’s former wife, Tracey Seppelt. Ms Seppelt gave evidence that she married the accused in September 1991, having met him whilst both studying at Roseworthy Agricultural College in 1989. Their daughter Melinda was born on in early January 1995 and their son Tristan in mid-August 1996. They separated in 2002 and divorced in 2003. Tracey Seppelt described the family history, Grand Cru Estate and the primary activities conducted there; horses, other livestock and wine.
Ms Seppelt gave evidence that the accused would spend time working on or renovating cars, as well as being involved in the other activities on the property. She described the family’s close involvement in horse riding in the area and that she owned and managed horses on Grand Cru Estate. Ms Seppelt corroborated the complainant and her mother’s evidence of the complainant’s involvement in horse riding and how the families became close. There is no point in repeating all of that evidence. Suffice it to say that it exactly reflects the complainant’s evidence and her mother as to the complainant’s close involvement in their property, horse riding and social events at Grand Cru Estate.
Ms Seppelt gave evidence that the accused would regularly seem to be closely involved with the complainant and whilst she observed the complainant to be generally a very happy, likeable and bubbly person, occasionally she would appear very angry, withdrawn and unhappy. Ms Seppelt said that the accused was always forward with the complainant, always seemed to want to sit next to her, and would be constantly filling her glass up with alcohol. Ms Seppelt said that the complainant was a great horse rider and so far as she recalled, probably started riding her (named) horse in perhaps 1995, purchasing at a later time which she thought was perhaps 1999, but added that was a ‘pure guess’.[66]
[66] T474.
As far as cars were concerned, she described a number of vehicles including three Range Rovers, a red, a blue and a green one. She recalled the complainant being in the red Range Rover with the accused, but had no particular recollection of them being together in other vehicles. Her memory was that the complainant moved to (country town T) in 1997, after which they didn’t continue to see them so much. She recalled a man by the name of Ivars Wolfes, who used to help out in the horse riding community in various ways. He was acquainted with the accused.
In cross-examination, Ms Seppelt agreed that with the passage of time, some of the dates did elude her, and she was struggling to recall some of the events concerned. She agreed that whilst her divorce was not a pleasurable experience, she had no bitterness towards the accused.[67] She agreed that she and the two children were portrayed in the photograph D3 and that the child in D5 appeared to be Tristan aged about one, him being born in August 1996.[68] She agreed she did not pay a great deal of attention to the cars that they had had. She agreed that the accused was capable of painting cars, so that it is plausible that he did repaint the Range Rover shown to her in the photographs.[69]
[67] T482.
[68] T484.
[69] T486.
After the police officer was briefly recalled, the prosecution closed its case.
The Defence Case
Mr Boucaut QC for the accused briefly opened the defence case. He submitted that the defence case was that nothing happened and that in any event the court should not be satisfied beyond reasonable doubt that the alleged conduct happened.
The defence called a single witness, psychiatrist Dr Furst. His letter of instruction, tendered as P13 at the request of the defence upon its production, instructed Dr Furst that the accused had been charged, that the accused denied the allegations, and that the complainant had indicated she had been diagnosed with Borderline Personality Disorder. It sought a report from Dr Furst as to how a diagnosis of Borderline Personality Disorder is ordinarily arrived at, how it might manifest itself in terms of behaviour and as to whether it could manifest in any of the following traits:
1Disregard for right and wrong
2Persistent lying or deceit to exploit others
3Being callous, cynical and disrespectful of others
4Using charm or wit to manipulate others for personal gain or pleasure
5Hostility, significant irritability, agitation, aggression or violence
6Lack of empathy for others and lack of remorse about saying or doing things that are harmful to others without regard for the consequences of those others
Dr Furst provided a report dated 12 February 2020. He had not seen, consulted or been shown any evidence relating to the complainant in this matter. In short, he reported that those suffering from Borderline Personality Disorder did not display any of the traits set out in the letter of instruction, and in particular that they were no more likely to lie or be truthful than the average person.
Dr Furst reported that Borderline Personality Disorder is a common mental disorder that he frequently encounters in his day to day clinical work as well as when assessing patients for court in a forensic psychiatric setting. He reported that rather than possessing any of the characteristics raised in the letter of instruction, a Borderline Personality Disorder can be diagnosed when, per the primary accepted diagnostic tool DSM-5 a patient exhibits ‘a pervasive pattern of instability of interpersonal relationships, self-image and affects and marked impulsivity, beginning by early adulthood and present in a variety of contexts’. Whilst the court has regard to the totality of Dr Furst’s 12-page report, for brevity it will not be set out here. Dr Furst reports that Borderline Personality Disorder is common in domestic violence relationships when the fear of abandonment is greater than the recognition that the person should leave an abusive relationship, and is also common in perpetrators as a mode of preventing abandonment. The behaviour can lead to intense and unstable relationships, with one text stating that ‘Borderline Personality Disorder patients are often consumed with establishing exclusive one to one relationships with no risk whatsoever of abandonment.’ Further, to avoid being alone such patients may resort to actions and gestures hoping to illicit rescue or suffer cognitive distortions in the context of interpersonal relationships. Reduced to its essence, it is characterised by a high degree of emotional instability and can result in a range of behaviours to prevent or avoid abandonment and obtain stability.
Dr Furst said that the severity of symptoms is highly variable between patients. Where a patient works on their condition to achieve better function, the condition can respond well to a range of psychotherapies. About 50% of patients who have treatment do not meet the criteria for the disorder 10 years after discharge. In laymen’s terms, it can be cured.
Dr Furst dealt with a number of other unrelated conditions, conditions which do predispose a person to lying; such as Pseudological Fantastica, Anti-social Personality Disorder and Narcissistic Personality Disorder. There is no suggestion the complainant suffered from any of these conditions.
Dr Furst was cross-examined. Dr Furst repeated that the condition could be successfully treated where people involved themselves in the therapy and tried to change. In those circumstances, they could improve to the point where they no longer satisfied the diagnostic criteria for the disorder.[70] He repeated that a person with the disorder does not necessarily have any disregard for right or wrong, display deceit, or lie, or attempt to exploit others. Dr Furst said that persons with the disorder could display elements of manipulative behaviour to deal with a situation they were in, as a maladaptive way of dealing with that situation. For example, when in a crisis of some sort, including in a domestic relationship. He emphasised that a primary aspect of Borderline Personality Disorder is that people are very focussed on themselves and their own emotions and how they react with other people.[71]
[70] T505.
[71] T517.
Dr Furst was asked about the letter of instruction he received from the accused’s solicitors, and agreed that there was nothing in the background he had been given concerning the complainant which raised any red flag that might indicate psychosis, delusion, or any inability to recognise the truth. He agreed that patients often become more stable as they age, for a range of reasons. He concluded by saying that he did not think there was any evidence to suggest that a person with Borderline Personality Disorder is more likely to lie than the average person, nor tell the truth or otherwise more or less than the average person.
The defence tendered some brief further agreed facts. In short that the (named horse) was first registered with Equestrian SA on 21 November 1991 which such registration was transferred to the complainant’s mother on 18 June 1996.
Consideration
The court has full regard to the addresses of counsel. Each counsel provided a detailed written address which they supplemented with oral submissions. For brevity, the court will not set out those addresses in detail, but has had full regard to each address and all of counsel’s submissions.
The court reminds itself of the burden and standard of proof, all the appropriate general directions, the strictly limited way in which evidence of discreditable conduct evidence may be used, and that the complaint evidence was not pursued for the reasons earlier articulated. The court is also required to bear in mind the accused’s forensic disadvantage in light of the time that has passed between the events and trial.
The overall thrust of the prosecution address was that the complainant was an honest and reliable witness who provided a straightforward, unembellished and credible account of her interactions with the accused. The prosecution submitted that she should be believed beyond reasonable doubt. The prosecution argued that there was a linearity to the facts supportive of the complainant’s account, that the accused had every opportunity to access and develop a relationship with the complainant, and that independent evidence from other witnesses demonstrated the accused’s closeness with, forwardness to, and instances of sexualised conversation either directed at, or in the presence of the complainant.
The overall thrust of the defence address was that the prosecution had not proven beyond reasonable doubt that the alleged instances of sexual activity alleged to have occurred in the green Range Rover took place before the complainant turned 17, it being argued that she may have telescoped the timing of events, or reconstructed events, and/or honestly but mistakenly believed in the events, and the timing of those events. The defence argued that the complainant’s evidence was too vague and insufficient to prove sexual activity outside of the green Range Rover, either prior to her turning 17 or at all.
Because the primary allegations rest entirely on the evidence of the complainant, and in light of the length of time since the events concerned and the consequent principle of forensic disadvantage that the court is legally required to have regard to, the court has carefully scrutinised the evidence of the complainant.
The complainant gave extended evidence, and was subject to lengthy cross examination. She gave evidence well and consistently. Her description of the events was clear, restrained, and she displayed no malice or animosity towards the accused. It had the ring of truth.
As set out earlier in the judgement, she was occasionally taken to instances where in one of the many police statements she had been required to provide, there was an inconsistency, essentially as to timing concerning some aspect of the matter. The court has carefully examined each of those instances in accordance with the well-recognised principles concerning suggested prior inconsistent statements. In each case she conceded what she had said on the prior occasion, and explained her previous statement, in essence that she had made an initial mistake in the timing or the statement was in error which either she had not picked up at the time of being given the draft to check, or which after further thought and consideration she had refined her view as to what she recalled. Her answers to these matters were credible, and after due consideration do not in the court’s view adversely affect an objective assessment of the complainant’s honesty and reliability as to the events she recounted.
The matters put to her did demonstrate that with the passage of time, the complainant’s recollection of the timing of events, as to exactly when they occurred all those years ago, was understandably not perfect.
The complainant’s evidence as to all the primary events was clear, consistent over time, and had the ring of truth about it.
The evidence of the complainant’s mother, Mrs Petersen and the accused’s former wife was straightforward, credible and convincing, and the court finds them to be honest and reliable witnesses whose evidence should be accepted beyond reasonable doubt. Their evidence establishes that the accused spent a considerable amount of time with the complainant, sought out opportunities to be physically close to her, and made inappropriately personal comments to her, and had inappropriately sexual conversations in her presence. The court uses that evidence only in the strictly limited ways permissible, as set out in the discreditable conduct notice, and entirely limited to those purposes.
In the final analysis, the complainant’s evidence as to, over time, the progression of the accused’s behaviour towards her; of him introducing sexualised conversation, personal touching and behaviour and finally sexual activity was telling, convincing and credible. It had all the hallmarks of an extended process of grooming.
At the end of the day the complainant was plainly telling the truth and the court finds proven beyond reasonable doubt the sexual activity undertaken by the accused with her, as deposed by her.
The court finds proven beyond reasonable doubt that during the New Year’s Eve party at Grand Cru Estate 1994-1995, the accused grabbed the complainant, held her hard up against himself and forcibly kissed her on the lips until she was able to wriggle free. It is proven beyond reasonable doubt that those actions in all the circumstances constituted an intentional and unlawful application of force without lawful justification or excuse occurring in circumstances of indecency involving a sexual connotation. The complainant plainly and obviously did not consent, indeed wriggling and struggling free from the accused as he held her to him and forcibly kissed her on the lips. The complainant was 15 years of age, so in any event consent is irrelevant as a child cannot legally consent to an Indecent Assault. It was an Indecent Assault, which constitutes an unlawful sexual act for the purposes of the charged offence of Maintaining an Unlawful Sexual Relationship with a Child. Proof of the offence however requires two unlawful sexual acts while the victim is still under the age of 17.
The court finds proven beyond reasonable doubt that subsequent to that occasion, at some time which is unclear on the evidence, the accused adopted a practice of coming up behind the complainant at events and placing his hand on her buttocks. The complainant was unable to say with any certainty when that conduct started, beyond that it was when she was riding horses at the accused’s property. It is clear from the evidence of the complainant’s mother and the accused’s wife that the complainant kept riding horses at the accused’s property well past her 17th birthday in April 1996, and was seeing him at horse-related events into 1997. There is insufficient evidence to conclude beyond reasonable doubt that it occurred prior to the complainant’s 17th birthday.
As to the two car rides during which it is alleged that the particularised instances of unlawful sexual intercourse occurred, the court finds proven that whilst those events occurred in the way the complainant said they did, the evidence is insufficiently clear as to when those events occurred. These events themselves were, according to the complainant only a few months apart, so it is not as though the complainant said they occurred throughout her time attending the accused’s property. On close analysis, the evidence is scant as to when the events occurred.
The complainant gave evidence that her recollection was that they occurred when she was aged 16, and that her recollection was that she was in year 11 and still living at (country town C) when they occurred. If she was in year 11 and living at (country town C), independent evidence would support the conclusion that she was no older than 16 at the time of those events.
There is however nothing about the circumstances surrounding the occasions on which the sexual intercourse itself occurred, i.e. two car rides with the accused, that necessarily connects those events with where the complainant lived. The car rides always commenced and ended at Grand Cru Estate, and the complainant attended Grand Cru Estate and was interacting with the accused from a time well before she moved from (country town C) to a time well after she moved from (country town C) and was well over 17.
It is clear, and indeed understandable, that with the passage of time, the complainant’s recollection of when events occurred is not perfect. For example, she gave evidence that she rode (a named horse) at the Rosk Hill event in 1994, when her mother and the contemporaneous endorsement on the photo of the complainant at that event, makes it likely that the event was in 1996. In relation to some other events, the complainant’s memory was that they occurred earlier than independent evidence tends to suggest the events occurred. The complainant’s consequent evidence dating the time of the car rides involving sexual contact by reference to the various horses and horse events occurring around that time cannot be analysed without reference to her level of recall concerning the timing of those other events.
The complainant was a completely honest witness who gave evidence well, but the passage of 24 years since the events in question would affect anyone’s ability to date with certainty moments such as these, moments which were not inherently tied to specifically identifiable time periods or any other distinguishable historical events.
Of relevance is the evidence as to the vehicle in which the unlawful sexual intercourse was said to have occurred. The complainant gave unequivocal evidence that on both occasions it occurred in the green Range Rover, indeed on the first occasion referencing that the accused took her for the drive in question as he had just purchased that vehicle. The tendered photos suggest that that Range Rover was originally cream coloured and remained so until sometime after the accused son’s Tristan’s birth in August 1996, the complainant having turned 17 in April 1996.
If this is the case, and the sexual intercourse occurred in the Range Rover after it was painted green, or even when it had just been newly painted green, the complainant was no longer a child for the purposes of a charge of Unlawful Sexual Intercourse, and accordingly that sexual activity cannot be a relevant unlawful sexual act for the purposes of a charge of Maintaining an Unlawful Sexual Relationship with a Child. The prosecution submitted that the accused had a number of Range Rovers, and the capacity to change their colours, that there was little direct evidence as to this vehicle and its colour over time, and that in any event it is wholly unremarkable that the complainant might be mistaken about the colour of the Range Rover at the time of the two drives.
Whilst those submissions are acknowledged, and that may indeed be the case, the complainant gave very detailed evidence about all the accused and his wife’s cars, indicating a good knowledge and recollection of them, even down to which model of some of the brands of car both the accused and his wife had over time. Given that detailed recall of the accused’s cars and the unequivocal nature of the complainant’s evidence that the unlawful sexual intercourse occurred in a green Range Rover, and that in the court’s view there is at least a reasonable possibility that the Range Rover in question was not green until after the complainant turned 17, there is a reasonable possibility that the complainant’s recall of the colour of that vehicle at the time of the sexual activity that took place within it is accurate, and hence there must be a reasonable possibility that those events occurred after the complainant’s 17th birthday.
Accordingly, taking everything into account, whilst it is proven that the accused held and kissed the complainant on a single occasion when she was under the age of 17, constituting an initial unlawful sexual act, there is a reasonable doubt as to when the subsequent sexual acts occurred, and at the end of the day a reasonable doubt as to whether the complainant was still under the age of 17 when those acts occurred.
The offence of Maintaining an Unlawful Sexual Relationship with a Child requires two unlawful sexual acts to be performed with a child under the age of 17. Only one has been proven beyond reasonable doubt, and accordingly the charge alleging the offence of Maintaining an Unlawful Sexual Relationship with a Child has not been proven beyond reasonable doubt.
The charged alternative counts 2-6 of Unlawful Sexual Intercourse with a Child each require proof beyond reasonable doubt that the complainant was a child under the age of 17. There is a reasonable doubt as to this element, and accordingly charges 2-6 have not been proven beyond reasonable doubt.
Counsel’s common position was that the only alternate verdicts available were the charged offences of Unlawful Sexual Intercourse with a Child, on the basis that s 50 in providing for, in effect, charged alternate verdicts evinces a legislative intention that other uncharged alternative verdicts are not available. Whilst I express no view as to the correctness of counsel’s position, as both sides ran their cases on that basis it would not be fair to depart from it at the stage of judgment.
Conclusion
The charged offence and the charged alternative counts have not been proven beyond reasonable doubt.
Verdict
The accused is acquitted.
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