R v Sweeny
[2008] SADC 83
•27 June 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SWEENY
Criminal Trial by Judge Alone
[2008] SADC 83
Reasons for the Verdict of Her Honour Judge Simpson
27 June 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - Accused charged with four counts of indecent assault and one count of unlawful sexual intercourse against the complainant, LC, and two counts of indecent assault against the complainant, TLG. Verdict: Guilty of all charges.
Criminal Law Consolidation Act 1935 ss 49(1), 49(7), 56, 57, 75; Evidence Act 1929 ss 13, 341, 69, referred to.
HML v R (unreported judgment, High Court, 24 April 2008 [2008] HCA 16; Longman v R (1989) 168 CLR 79; R v Nieterink (1999) 76 SASR 56; R v Randall (1991) 55 SASR 447; Doggett v R (2001) 208 CLR 343, applied.
R v SWEENY
[2008] SADC 83
The accused, Gavin Paul Sweeny, was charged on information of 2 June 2008 with seven counts of indecent assault and one count of unlawful sexual intercourse. On 2 June 2008, the prosecutor entered a nolle prosequi in respect of count one on the information.
The accused elected to be tried by judge alone pursuant to section 7(1) of the Juries Act 1927. He entered pleas of not guilty to counts two to eight inclusive on the information.
The charges which were the subject of the trial relate to two complainants, LC and TLG. The particulars of the charges are as follows:
Second Count
Indecent Assault (Section 56, Criminal Law Consolidation Act 1935)
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 9th day of April 1982 at Smithfield, indecently assaulted LC.
Third Count
Indecent Assault (Section 56, Criminal Law Consolidation Act 1935)
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 9th day of April 1982 at Smithfield, indecently assaulted TLG.
Fourth Count
Indecent Assault (Section 56, Criminal Law Consolidation Act 1935)
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 9th day of April 1982 at Smithfield, indecently assaulted TLG.
Fifth Count
Indecent Assault (Section 56, Criminal Law Consolidation Act 1935)
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 9th day of April 1982 at Smithfield, indecently assaulted LC.
Sixth Count
Unlawful Sexual Intercourse (Section 49(1), Criminal Law Consolidation Act 1935)
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 9th day of April 1982 at Smithfield, had vaginal sexual intercourse with LC, a person under the age of 12 years.
Seventh Count
Indecent Assault (Section 56, Criminal Law Consolidation Act 1935)
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 30th day of April 1982 at Smithfield, indecently assaulted LC.
Eighth Count
Indecent Assault (Section 56, Criminal Law Consolidation Act 1935)
Particulars of Offence
Gavin Paul Sweeny between the 9th day of April 1982 and the 31st day of December 1984 at Hillcrest, indecently assaulted LC.
LC and TLG were young girls at the time of the alleged offending. It is an admitted fact that LC was born on 14 August 1970 and that TLG was born on 27 April 1969. It is also an admitted fact that by reference to records kept by the Housing Trust of South Australia, LC lived at an address in Smithfield from 25 October 1980 to 9 April 1982 and that from 22 November 1980 to 25 January 1986 the brother of TLG and his wife lived in Smithfield two doors from the house where LC was living.[1]
Statutory Provisions
[1] Exhibit P1
Indecent Assault
As at 5 February 1981, section 56 of the Criminal Law Consolidation Act 1935 provided:
Any person who indecently assaults any person shall be guilty of a misdemeanour, and for a first offence, liable to be imprisoned for any term not exceeding five years and for any subsequent offence to be imprisoned for any term not exceeding seven years.
Section 56 was repealed by section 11 of the Criminal Law Consolidation Amendment Act, 1981 (Act No 107 of 1981) and the following section was substituted:
A person who indecently assaults another shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding eight years, or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.
The amendments introduced by the amending Act came into operation on 11 February 1982.
Subsection (2) of section 57 of the Criminal Law Consolidation Act 1935 provides:
Subject to subsection (3) no person under the age of seventeen years shall be deemed capable of consenting to any indecent assault.
Subsection (3) provides for a defence to a charge of indecent assault in circumstances which are not relevant in this case.
The Elements of the Offence of Indecent Assault
The following elements of a charge of indecent assault must be proved beyond reasonable doubt: the prosecution must prove first that there was a deliberate or intentional touching of another person, without her consent and without lawful excuse. No person under the age of 17 years is capable of consenting to any indecent assault. No issue of lawful excuse arises on the evidence.
Secondly, the prosecution must prove an element of indecency. One rather old-fashioned way of describing indecent conduct is conduct that a right-thinking person would consider an affront to the sexual modesty of a woman. Another way of putting it is whether what occurred is so offensive to contemporary standards of modesty and privacy so as to be indecent.
Unlawful Sexual Intercourse
As at the period between 5 February 1981 and 9 April 1982, section 49(1) of the Criminal Law Consolidation Act 1935 provided:
A person who has sexual intercourse with any person under the age of twelve years shall be guilty of a felony and liable to be imprisoned for life.
Pursuant to subsection (7), consent is not a defence to a charge of an offence under the section.
As at the time of the charged offence of unlawful sexual intercourse, section 75 of the Act provided as follows:
If upon the trial of any information for any felony or misdemeanour under section 48 or 49 of this Act the jury is satisfied that the accused is guilty of an indecent assault, or of a common assault, but is not satisfied that the accused is guilty of the felony or misdemeanour charged, the jury may acquit the accused of such felony or misdemeanour and find him guilty of an indecent assault, or of a common assault, as the case may be, and thereupon the accused shall be liable to be punished in the same manner as if he had been convicted upon an information for an indecent assault, or for common assault, as the case may be.
The Elements of the Offence of Unlawful Sexual Intercourse
The prosecution must prove each of the following elements in respect of count 6, the charge of unlawful sexual intercourse: first, the prosecution must prove that the accused penetrated the vagina of LC with his penis. It is the prosecution case that the accused penetrated the labia majora, the large outer folds at the entrance to the vaginal canal, with his penis.
For the purposes of this case, sexual intercourse is to be understood as meaning penile vaginal intercourse where any degree of penetration of the outer lateral boundaries of the entrance to the vagina, the labia majora, by the penis is sufficient. (R v Randall (1991) 55 SASR 447 at 449 – 450, per Cox J, King CJ and Matheson J agreeing)
Secondly, the prosecution must prove that LC was under the age of twelve years at the time. It is unlawful to have sexual intercourse with a person under the age of 12 years. There is no issue of consent when the alleged victim involved is under 12 years of age.
If the act of penetration of the vagina by the accused’s penis is not proved beyond reasonable doubt, but it is established that the accused deliberately or intentionally touched LC, falling short of penetration of the vagina with his penis but in a way that is found to have been indecent, then pursuant to section 75 of the Act it is open on count 6 for the accused to be found guilty of the offence of indecent assault as an alternative offence.
General Matters
The accused has been charged with serious crimes. He comes to court with a presumption of innocence in his favour. I bear firmly in mind that the burden of proving the charges against the accused is wholly on the prosecution. The law regards him as innocent unless his guilt has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a suspicion of guilt or to show that an accused person is probably guilty. He is not to be found guilty on insufficient or doubtful evidence.
Each charge is to be considered separately. It would be completely wrong reasoning to proceed on the basis that because the accused is found to be guilty of one charge, he must be guilty of another. He is not to be found guilty unless every element of each charge against him has been proved beyond reasonable doubt.
An accused person may put forward an explanation which is consistent with his innocence. He does not have to prove it. It is for the prosecution to disprove it; otherwise the prosecution will not have proved its case.
LC did not make a complaint about the accused’s conduct to anyone until the beginning of 1989. TLG made no complaint about the conduct of the accused until 2000, when she mentioned to her husband only in very general terms that something had happened to her as a child, and after that did not speak to anyone about it again until she was contacted by a police officer in 2005.
The fact that no complaint was made by either of the girls about the conduct of the accused at the time may be taken into account when assessing their evidence for its truthfulness and reliability. However, failure to make a complaint does not necessarily mean that the allegations are false. There may be valid reasons for a victim of a sexual offence failing to make a complaint or for delaying in making a complaint of that offence.[2] In this case, the complainants were both young girls at the time of the alleged offending. They may have been afraid of the consequences of disclosing the accused’s conduct or embarrassed about or ashamed of talking about sexual experiences, especially as in the case of LC, the man was a friend of the family and he had been in a close relationship with her mother, and in the case of TLG, the man was seen as LC’s stepfather.
[2] section 34I(6a) Evidence Act 1929
Nevertheless, I bear in mind the forensic disadvantage to the accused at trial on account of the passage of twenty-five years or more since the time of the conduct of which complaint is made and in particular, for example, had the allegations been made soon after the alleged events, it was more likely that the accused could have explored the alleged circumstances of those events in detail and perhaps adduced evidence throwing doubt upon the complainants’ stories or confirming the accused’s denial.
I bear in mind that it would be dangerous to convict the accused on the evidence of LC or of TLG alone unless, after scrutinising the evidence with great care, considering the circumstances in which it is to be evaluated, I can be satisfied of its truth and accuracy. (Longman v R (1989) 168 CLR 79 at 91)
Uncharged Acts
The complainants each gave evidence of sexual acts perpetrated by the accused other than those which are the subject of the charges being tried. There was no issue raised at trial regarding the relevance or the admissibility of the evidence which has the potential, if accepted, to establish that the accused had a sexual interest in the complainants and had acted on it on occasions other than those charged. (HML v R, unreported judgment, High Court, 24 April 2008 [2008] HCA 16, at [336] per Heydon J)
I bear in mind that it would be quite wrong to reason that evidence of other behaviour of a sexual nature on the part of the accused towards either complainant is proof of the charges faced by the accused. It would be quite wrong to reason that he is the sort of person who commits the offences with which he is charged, on account of evidence of those other events. It would be an impermissible use of the evidence relating to those incidents, if proved, to reason that the accused must therefore be guilty of the offences with which he is charged. (HML v R, above, at [11] per Gleeson CJ)
The evidence of those incidents can be used to place the behaviour of the accused which is the subject of charges into a more readily understandable factual context. The evidence of other conduct of a sexual nature, if proved by the prosecution, might establish that the accused had developed a sexual attraction for a complainant, provide the background against which charged incidents are alleged to have occurred and explain why the accused was confident in obtaining acquiescence to his alleged offending behaviour. The evidence might make the evidence of the complainants regarding the charged acts more reliable and the conduct the subject of the charges more likely. It might explain why no complaint about the conduct of the accused was made at the time. (R v Nieterink (1999) 76 SASR 56; HML v R, above, at [6-7], [24] per Gleeson CJ; [132], [155-156], [180-181] per Hayne J; [41] per Gummow J; [59-62] per Kirby J)
To prove that a person did something many times does not compel a conclusion that he did it again. However, it might make it more likely that sworn testimony that he did it again is true. People do not act in accordance with all their inclinations at every opportunity, but proof of a person’s inclinations may provide strong support for direct testimony as to that person’s conduct.
(HML v R, above, per Gleeson CJ at [11])
Unless the evidence of uncharged acts is relied on by the prosecution as an indispensable step in reasoning towards guilt, no separate consideration of the standard of proof in respect of those acts is required. (HML v R, above, per Gleeson CJ at [32-33]) On the other hand, if the evidence of relationship is relied on to demonstrate that the accused had a sexual interest in a complainant and a preparedness to act on it and to continue to act on it, then it will be inappropriate to rely on that evidence unless satisfied of it beyond reasonable doubt. (HML v R, above, at [41] per Gummow J; [63] per Kirby J; [132] and [247] per Hayne J; [506] per Kiefel J)
The witnesses
The prosecution called the complainants, LC and TLG. Special arrangements were made for each of them while giving their evidence pursuant to section 13 of the Evidence Act 1929 – in the case of LC, a one-way glass screen was placed to obscure her view of the accused. TLG gave evidence outside the courtroom and her evidence was transmitted to the courtroom by closed-circuit television. An order was made in each case pursuant to section 69 of the Evidence Act 1929 limiting the persons in court in order to avoid embarrassment to the complainants while they gave evidence of an intimate and sensitive nature. Special arrangements by way of a one-way screen to obscure the witnesses’ view of the accused while the witnesses gave evidence were made for other prosecution witnesses: LC’s mother, SAG, and LC’s sister, VJC. I bear in mind that no adverse inference against the accused is to be drawn on account of the special arrangements made and those arrangements are not to influence the weight to be given to the evidence of any of those witnesses.
LC’s father, NPC, his sister, APC, and SAG’s sister, DSD, were also called to give evidence. JAG is the husband of the complainant, TLG. He was called by the prosecution, together with TLG’s sister, DD, and her sister-in-law, MER.
A police officer, Detective Brevet Sergeant Herbert Barry Graham, gave evidence about his role in the investigation into the complaints against the accused.
The accused gave evidence. I bear in mind that he was not required to give evidence. He chose to give evidence and he chose to subject himself to cross-examination. His evidence is to be assessed in the same way as that of any other witness – it is to be scrutinized and evaluated fairly before the weight to be given to it is determined, having in mind the difficulties facing an accused person in giving evidence.
The accused denied the charges.
The evidence relating to the charges
SAG and NPC were married in 1970. They had two children, LC and VJC. LC was born on 14 August 1970 and VJC on the 21 January 1978. They met the accused in 1974. He was a friend of NPC’s brother KC. The accused and KC had been working together in the mining industry. When they returned to Adelaide, the accused was included in social events in the family and came to know the children LC and VJC and also NPC’s parents, who lived at Belair.
SAG and NPC separated in 1979. They were living together at Blackwood when they separated. After their separation, SAG rented a house at Aldgate for about six months and then moved back into the former family home at Blackwood after her husband had moved out. She lived there for six months with the two girls. While she and the girls were living at Aldgate, SAG’s relationship with the accused changed from that of a family friend to one of an intimate nature.
On the 25 October 1980, SAG and the two girls moved to a house at Warooka Crescent, Smithfield. SAG continued her work as a nurse at a nursing home. When she moved to Smithfield, she was working only one shift each week, on a Saturday night between 11 pm and 7 am. SAG worked that one night shift while she was living at Smithfield because of the travelling distance involved in getting to work and back and the Saturday night rate was a good rate, so it was just the one night a week that she worked while she was living at Smithfield. She said that her daughter LC generally went to bed about 8.30 or 9 pm during the week and at weekends it might have been half an hour later. She said LC was already in bed when she left for work at 10 o’clock on Saturday nights. SAG said that it was not her practice to allow LC to get up once she had gone to bed, except that on occasions, LC would come into her bed during the night and stay there until the morning.
The accused looked after her two daughters while she was doing the Saturday night shift. He stayed overnight, sleeping in her bed. The two girls each had a bedroom of their own.
LC said that she had known the accused since she was about five years old. After the separation of her parents, she had come to understand that the accused and her mother were in a relationship, although he had never lived with her mother, herself and her sister. She said that he had stayed overnight when they were living at Blackwood after the separation of her parents. She said she recalled one occasion very vividly when she had gone into her mother’s bed early in the morning while they were living at Blackwood. Her sister was asleep in her cot next to the bed and the accused was in the bed with her mother. Her mother had got up and out of bed. She said that the accused asked her to roll on top of him and to be his blanket. He had said “come and keep me warm, it’s so cold, come and be my blanket”. She lay on top of him and he held her quite firmly and moved her on top of his body. She started to feel a little uncomfortable. She said that she believed she could feel his erect penis pushing against her stomach. She would have been nine or ten years old at the time.
After the family moved to the house at Smithfield in October 1980, LC made friends with another young girl, TLG, whose older brother lived two doors from LC’s house. LC said she met TLG on Christmas morning when the neighbourhood children were playing in the street. TLG stayed overnight at the Smithfield house on a Saturday night on more than one occasion.
The accused would then look after the three children when SAG was working.
Count 2– Indecent assault - LC
LC said that the first time that there was ever any sexual activity between LC and the accused at the Smithfield house was an occasion when TLG was staying overnight. It was an occasion on which a séance had been conducted. During the séance there had been an attempt to communicate with LC’s uncle KC, who had died on the 5 February 1981. LC had considered herself close to her uncle KC and had been very upset at his death. Since he had been a friend of the accused, she had asked the accused to tell her about her uncle and about details of his life.
After the séance involving the accused, LC and her friend, TLG, had taken place in the dining room, they had moved into the living room, where the accused had brought up the topic of kissing. He had suggested a kissing competition. The accused had first kissed her friend TLG for a number of minutes while LC timed the activity. Then it was her turn to go into the kissing competition and she said the accused started kissing her in a violent and passionate manner. She said she pushed him away because she could not breathe properly. She felt very uncomfortable and did not tell anybody about it afterwards. She was very scared of her mother and scared in general if anyone had found out what the consequences may have been.
Count 5 - Indecent assault of - LC
LC said that after the kissing competition, the accused told her on a number of occasions that her uncle, KC, had said many times that he loved her so much that he wanted to kiss her in that manner and that her uncle KC had wanted to do other things to her, which he told her was what uncles do when they love their nieces. The accused had come into her bedroom on a number of nights and she woke to find him under the bedclothes, under the quilt, kissing her vagina. Although she asked him repeatedly to stop kissing her vagina, he did not stop when she asked him to. She said it happened every Saturday night. She said she would pretend to be asleep and she would just try to lie there and wish that he would go away. She thought that there had been a couple of occasions when her friend TLG was sleeping on the top bunk while the accused was in the bedroom.
Count 6 – Unlawful Sexual Intercourse - LC
LC said that after the accused had begun the conduct of kissing her vagina on Saturday nights, he had used his penis in the course of sexual activity with her. She said that on the first occasion, she was in her bed. She had woken to find him under the quilt kissing her vagina. She described how he had with some force brought himself over the top of her and forced her legs apart, while she tried to resist with her two feet on his chest. She said on the first occasion his erect penis entered her vagina about an inch or so past the outer lips. She said that it felt horrible and she was very, very scared. She told him to stop and get off her, very firmly but in a very quiet voice: she was horrified at the thought of her sister hearing her and waking up and being traumatised. LC said that the accused ejaculated over her vagina and stomach.
She recalled that there had been two or three very similar occasions after that first time. She said that the accused would get her up and shower with her afterwards. On the occasions when the accused ejaculated during the course of sexual contact with her, she sometimes changed her sheets, taking them off the bed and putting them into the laundry. She told her mother that she had started wetting the bed, in order to explain why she had taken her sheets off the bed.
After similar behaviour by the accused had been going on for a number of months, she had become concerned that after she had fallen asleep at night, the accused might go into her younger sister’s bedroom. She begged and pleaded with him to make sure he was not interfering with her sister. She told the accused that if he ever went near her sister, she would put a knife in him. She said the accused told her that he would never touch her sister and he loved only her.
She said she had never told her mother about what was happening while they were living at Smithfield. She was very scared. She was petrified that she would get into trouble somehow. She felt unsafe in her own house and wished that her father were there to protect her.
Count 7 – Indecent assault - LC
On another occasion, LC recalled going into her mother’s bed in the Smithfield house in the night and waking up in her mother’s bed the following morning. She said her mother was not there. When she woke up, she saw the accused sitting next to her on the bed, naked, with an erect penis. She said that he told her he wanted her to kiss her penis and he told her that it tasted like chocolate. She said she did not want to do it and told him so. The accused grabbed her by the back of her head and hair and pushed her head on to his penis. She said when her lips touched his penis just for a moment, the accused ejaculated. She immediately vomited all over his body. She said she was distraught and crying. She felt ill and found it very distressing.
On 9 April 1982, SAG moved with her two daughters to a house at Hillcrest. LC and TLG lost all contact with one another after LC moved away. The relationship between SAG and the accused ceased to be an intimate one and, after the move to Hillcrest, the accused did not stay overnight.
Count 8 – Indecent assault - LC
On one occasion at the Hillcrest house, LC said she had been in the lounge room in the evening with her mother and sister. She recalled that she was unwell and so her mother had made up a bed for her on the couch with her pillow and quilt and she was watching television. She said the accused had come over to visit her mother and after talking to her mother for a while, her mother had gone to bed. After her mother went to bed, the accused came over to her on the couch and she told him not to come near her or she would yell out to her mother. Nevertheless, the accused went under the quilt, pulled her underwear to the side and kissed her vagina violently, holding her legs. She did not call out because she was scared. She thought her mother would walk in any moment. One part of her wanted her mother to come in and another part was very scared. She thought she was about twelve years old at the time. LC turned twelve on 14 August 1982.
By November or December 1982, SAG had formed a relationship with another man, PK. He had come to Adelaide from Darwin for a wedding and stayed with her. He remained in Adelaide after the wedding, living at her house.
LC said that she had moved out of her mother’s house after her mother’s friend, PK, had moved in. Although she said nothing to her mother about it, she was concerned that PK may attempt inappropriate behaviour with her. LC went to live with her grandparents at Belair until one or two days before her fourteenth birthday in August 1984.
While she was at her grandparents’ house, the accused had visited there. On one occasion when she and the accused were in the lounge room of her grandparents’ house, with her grandfather, the accused had touched her breasts. Her grandfather had been sitting in his usual chair and the accused was sitting on one end of the lounge while she was sitting on the other. Her grandfather got up from his chair, walked over to a bar and leant over behind it, the accused had reached over and started groping her breasts while her grandfather was bending down behind the bar. She said nothing about it because she was scared of her grandfather’s reaction.
LC said that she had not been subjected to any further sexual contact from the accused after her fourteenth birthday. She said that although he would try to get her into a room by herself, she did everything in her power to avoid being with him in a room alone.
Complaint by LC
LC said that the first family member she told about the abusive conduct of the accused was her father’s sister, APC. She was eighteen when she first spoke to her aunt. She was staying temporarily at a house at Magill. LC said that the reason she made the disclosure at that particular time was on account of her belief that the accused was visiting her mother’s house more frequently and she was afraid that he might abuse her sister who was then ten or ten and a half. It was to protect her sister. Her aunt came and picked her up from Magill and took her back to her home. APC said that she had received a phone call from LC’s boyfriend, C. LC appeared distraught. When APC arrived at the house at Magill, LC was crying and moving around the house in an agitated fashion. Her cheek was red. APC thought that LC had been assaulted by her boyfriend. It appeared that they had been arguing.
LC told her that she had been sexually abused by the accused. APC put the time of the conversation at a few months before she was married in February 1989. APC did not press LC for details because LC appeared distraught. APC asked LC how old she was when it happened and how long it had gone on. LC told her she was ten and living at Smithfield and that it had been going on while she was ten, eleven and twelve – for a number of years. During the conversation with LC, APC had asked her whether the accused had ever touched or abused her sister, VJC. That was because LC had said she was worried about VJC with the accused hanging around the house again.
LC stayed overnight with her aunt and the following day they both went to speak to LC’s father. They met him at his offices and LC told him that she had been sexually abused by the accused.
LC’s father, NPC, said that he had met his sister and his daughter at his office in Kensington when LC was about eighteen. He said that LC had told him that the accused used to do sexual acts with her, without giving him specific details. He did not press her for more information. NPC said that LC had told him that she had told her mother a few years earlier, but her mother had found it difficult to accept. He said LC had told him that she could not keep it to herself any more so she had had to speak to her aunt, APC.
NPC said he phoned the Adelaide CIB straight away. LC said she recalled two police officers, a man and a woman, coming to speak to her at her father’s office. She described her memory of their appearance. LC said they were told that no action could be taken against the accused. LC accepted that in a statement she gave in 1993 she had said that she thought she had some arrangement to meet a police officer, but nothing had ever eventuated. Her aunt, APC, could not recall whether or not any police officers had attended at the office.
NPC thought he had persisted with his enquiries until being satisfied he was speaking to a senior officer and it had been during a telephone conversation that he had been told in effect that no action could be taken because the allegations related to a period that was too long ago.[3] He was angry at hearing that.
[3] Section 76A, Criminal Law Consolidation Act 1935
Detective Graham said he had made efforts to find out whether there was any record of any contact by any member of the C family in the late 1980’s with the Norwood Police Station. He said that police stations commonly keep a station journal. He was told that there would not be one relating to the late 1980’s at the Norwood Police Station. Any patrol log sheets relating to the late 1980’s which might have contained a record of a police officer attending a complainant in any matter would have been kept for two to three years and then destroyed. No electronic record was made at that time.
Mr Graham also checked with the Adelaide Police Station to ascertain if it was possible to locate a record of a phone call to a particular department in the late 1980’s. There might have been a handwritten record in the station journal. Mr Graham was advised that generally there would be no station journal now available from the 1980’s. There was a chance that some of the old journals may have been preserved for historical purposes but at the time of trial he had not been able to discover if relevant journals still existed. He said that in his experience a record would not necessarily be made of a call which had been diverted to an investigation section when an officer had formed the view that no action should be taken.
Mr Graham said that if police officers had attended to speak to a complainant a record of that attendance would have been made in the patrol log. He said there was no record available for LC having reported her complaint to the Norwood Police Station, nor to the Adelaide Police Station.
On further inquiry, Mr Graham said he had as far as he could tell he had spoken to everyone who might be able to assist in locating a record of any complaint made by LC in the late 1980’s. He had been told that if a record had been made it would have been on a microfiche system at best. It was not possible to search the microfiche system electronically. In addition, he had been advised that even the microfiche record system might not cover a period longer than fifteen years ago. The person in the police department who might have been able to give further assistance was currently in the United States.
NPC decided to take action by contacting the Education Department, where he understood the accused was working. After making inquiries, NPC was advised to put his allegations in writing. He wrote a letter directed to the Assistant Director Personnel, Western Area Office, Whyalla. A copy of the letter was admitted, not for the truth of the contents in it, but to establish that NPC had taken action at that time. The letter is dated 14 June 1989.[4] NPC believed that the meeting with his daughter at his office had taken place about four weeks before he sent the letter. NPC said that what he put in the letter was based on suspicions he had held himself, confirmed by his daughter’s disclosure to him. They were not strong suspicions and he took no action at the time. He did not raise them with the accused or with LC’s mother.
[4] Exhibit P7
I reject NPC’s evidence regarding any prior suspicions about the accused’s behaviour or the accused’s relationship with his daughter LC. It was clear when he gave his evidence that he may have, in retrospect, assumed he had suspicions earlier, but it is more likely that he was reconstructing events to fit in with what he had been told by LC. Similarly, I can place no reliance on his evidence that LC had told him, contrary to all the other evidence, that she had disclosed the accused’s sexual abuse to her mother when she, LC, was sixteen or seventeen, and her mother had been unable to accept it.
NPC said he made some attempts to get in touch with the accused after the disclosure without any success. The extent of his attempt to contact the accused was to mention to some mutual friends that he wished to speak to the accused. He said he would not have contacted the accused through the accused’s parents. After making those attempts to have the accused get in touch with him, and writing a letter to the Education Department, after a few months after being told of the sexual abuse by LC, NPC took no further action. He said he just put it behind him.
NPC said that he would never have suggested that LC ought to consider a civil claim with respect to the abuse. He said he might have suggested to LC that a compensation claim might be appropriate, but he would not have suggested that she approach the accused for compensation. She was a young girl.
SAG said that she first heard of allegations of the accused sexually abusing LC when her daughter telephoned her. She thought it was when LC was about sixteen, seventeen or eighteen. Having regard to the evidence overall, LC must have been eighteen. The phone call came at a time her daughter was living with her boyfriend, C, at Magill. She said that LC had been very agitated on the telephone accusing her mother of not protecting her. SAG said that LC was using drugs at the time and there had been several previous incidents when LC had been agitated or hysterical. LC told her mother that she wanted to take the accused to court. She said she was concerned about her sister, VJC. SAG remembered telling LC that she should keep VJC out of it because VJC was very young. She said she would support LC if LC wanted to take it through the courts but she would not let VJC get involved.
SAG rang the accused the same day or the following day after the telephone conversation with her daughter. She told the accused that LC had been in touch with her was extremely upset and had told her some shocking revelations about what had happened between LC and the accused at Smithfield. She said the accused did not respond at all. She asked him whether he was going to speak to her about it. He still did not respond. She said he replied in a quiet and measured way, “I loved those girls and I didn’t mean to hurt them, S”. SAG said she was upset and asked the accused if that was all he had to say. When he did not reply, she told him it would not be the end of it and she hung up.
SAG said that she and LC got together and talked more about it. LC told her that she wanted to go around to confront the accused. She asked her mother to go with her. SAG said that she and LC went to the accused’s parents’ home shortly afterwards. They went to the front door. The accused’s mother came to the door and LC told her she wanted to see the accused. LC was agitated and insisted on seeing the accused, although his mother had said he was not home. The accused came out and stood behind his mother. SAG could not remember exactly what was said. She thought his mother had told them to go away and after LC had said that it would be ‘sorted’ one day, they left the premises. After that SAG had no further contact with the accused.
SAG said that she had said in an earlier statement, one she had given to an investigator from the Education Department who spoke to her in 1993, that she told the accused that the girls had spoken to her and told her everything that had happened and that she had told the accused that she believed he had sexually assaulted her daughters – in the plural. In fact she said VJC had never spoken to her about being sexually abused by the accused. She thought saying ‘girls’ and referring to VJC could have been a slip of the tongue. She made no mention in her evidence of telling the accused that there were allegations of VJC being abused by him.
I reject the evidence SAG gave that the accused said anything to the effect of, “I loved those girls and I didn’t mean to hurt them”. It may well be her memory of what happened, but as she said, it has been going through her mind for the last twenty years, she had a fear about VJC, and that is how she remembered it. Nevertheless I cannot be satisfied that the accused made that comment to SAG.
VJC was born on 21 January 1978. She was only three to five years old at the time of the allegations against the accused. Her evidence about her memories of staying overnight at the accused’s house in Klemzig when she was a very young child and of her recollection of disclosing abuse following a confrontation with the accused in 1989, when she would have been eleven years old, was admitted over objection. At the time the evidence was to be given, it appeared from her declaration[5] that evidence of VJC might corroborate the evidence given by LC and her mother, SAG, although its weight was likely to be slight.
[5] MFI P4
Having heard the evidence, in my opinion, VJC’s memories of any overnight stays at the accused’s house at Klemzig are, on account of her age at the time, too vague and too susceptible to outside suggestion to have any value at all. I reject it.
It is likely, having regard to all of the evidence, that VJC does remember correctly that it was she who went with her mother, rather than LC, when SAG went to see the accused in 1989 to confront him, as SAG said. As an eleven-year-old girl, VJC heard her mother repeat allegations of sexual abuse of her sister to the accused and his mother. I reject VJC’s evidence that she told her mother that the accused had also abused her. It is contrary to the evidence of her mother. It is all too likely that a memory of the disclosure has been artificially generated by what VJC saw and heard at the time and by subsequent discussions about the allegations since then. In the event, the evidence of any abuse of VJC by the accused cannot be relied on and I have disregarded it entirely.
In 2005, LC was contacted by a police officer regarding an unrelated matter. While talking to him, she became aware that the law regarding the prosecution of certain offences had changed. LC asked the police officer to investigate her allegations of offending conduct by the accused.
Other contact between LC and the accused
There was clearly contact between LC and the accused after her 14th birthday in August 1984 and before she made a complaint in 1989 to her aunt, APC, about the conduct of the accused and confronted the accused himself with the allegations.
There was further contact initiated by LC with the accused between 1989 and 1992, after the complaint was made. LC said she had telephoned the accused at his parent’s house to arrange a time to collect any family photographs the accused had. Although LC placed the time of her visit to the accused’s parent’s house at about one year after the contact with her father and the police, from the evidence it must have been sometime in 1989, when LC was nineteen. LC said she went to the house on her own and collected the photographs. She had also told the accused that she wanted $2000 in compensation for what he had done to her. LC said the accused gave her an envelope with $2000 in $50 notes. His mother had given her a note to sign giving an assurance that on receipt of the money, LC would not go to the police. LC refused to sign it.
Putting to one side the occasions on which it was suggested to her she had seen the accused which LC did not remember at all, LC did accept in cross-examination that there were times that she had or possibly may have initiated contact with the accused, while not recalling the particular occasion: visiting him with a friend at student accommodation in McKinnon Parade when she was at school; asking him to collect her from the bus stop when he had a leadlight shop at Hampstead Gardens; contacting him when she was living with her grandparents at Blackwood to borrow his dog; taking friends to his house when she was fifteen years old, she said, to ask him to obtain drugs and alcohol for them; driving to the Riverland with the accused when she was about fifteen; possibly sharing accommodation with the accused at Windsor Gardens for a short time when she was sixteen or seventeen; visiting the accused at a house at Trinity Gardens; staying with the accused at Rosewater after contacting him through the Education Department in 1992; the accused taking her to an appointment with an Ear, Nose and Throat specialist at North Adelaide in 1992.
LC said she felt a slight sense of power over the accused by using him in the way she did. She said she had had a nervous breakdown when she was eighteen. She said she had from time to time abused alcohol and drugs and had difficulty remembering some events in her life between the age of about fifteen and twenty-two.
The impression of LC’s life as a teenager and later is that it was characterised by consumption of drugs and alcohol, association with people who did not have her best interests in mind, abusive personal relationships and a willingness, on her own account, to use the accused to her own advantage. It must reflect negatively on the reliability of LC’s evidence that she did not mention other contact with the accused to the authorities and made no reference to it in examination-in-chief.
Count 3 – Indecent assault - TLG
TLG was born on the 27 April 1969. She grew up in a large family, with four brothers and four sisters. She was the youngest. She had an older brother, K, who was eleven years older than she was. K married his wife, MER, in May 1980. Shortly afterwards they moved to 13 Warooka Crescent, Smithfield, where they lived for about four years. During the time that they lived at Warooka Crescent, TLG visited their house nearly every day and at weekends. She made friends with LC, who was living two doors down, after they met playing on the street. Her memories of LC she said were very vague: she remembered playing with her as children on the street, going to roller skater rinks and things like that. TLG agreed that when she was about twelve, she was a quiet, reserved child. She did not remember talking to LC at any time about kissing or other things of a sexual nature. She said that when she was twelve, she was not thinking about things of a sexual nature.
After she met LC, TLG would commonly visit LC’s house, usually every weekend. She stayed there overnight more than once. She came to know LC’s mother and her much younger sister and she met the person she took to be LC’s stepfather, the accused.
Throughout her evidence TLG referred to the man who had been at her friend’s house simply as ‘the man’ or as LC’s ‘stepfather’. There is no suggestion on the evidence that the person looking after TLG and LC on Saturday nights was anyone other than the accused. There is no suggestion on the evidence that LC’s mother, SAG, was in a relationship with anyone else which could have given rise to an understanding that some other person, other than the accused, was LC’s stepfather.
There was no issue at trial regarding the identity of the accused as the person referred to by TLG as LC’s stepfather. I accept however that the accused was at a disadvantage in that regard, although no specific issue arose on the evidence. However, had a complaint been made earlier, the accused might have been able to make enquiries about whether he had been babysitting, or whether TLG had in fact been visiting on a particular occasion.
Looking at the diagram of the layout of the house where LC lived, TLG remembered where the bedrooms, living room and dining room had been. She remembered that LC had bunk beds in her bedroom. She thought, although she was not sure, that when she stayed overnight, it would have been on the top bunk in LC’s room. She thought she might have stayed overnight five times in all. TLG remembered that LC’s mother was a nurse and worked night shift. When she stayed overnight LC’s stepfather looked after her.
TLG remembered taking part in an activity with LC and her stepfather when an ouija board was used on one of the nights she stayed over. She vaguely remembered thinking of someone’s name that they were trying to bring up, but she only remembers playing the game and it being a scary sort of situation.
TLG said that LC’s stepfather had suggested they play a kissing game to see who could kiss the longest. She could not remember whether it was on the same night as the activity with the ouija board or not. After the suggestion was made she kissed LC’s stepfather. It was an open mouth kiss and it was part of the game to kiss for as long as they could hold their breath. TLG said she saw LC’s stepfather kiss LC as well. She could not remember who kissed him first. He kissed LC in the same way he had kissed her. There was kissing more than once on that first occasion.
TLG said she felt more confusion than anything else after that incident. She told no one about what had happened. When she was asked why not, she said she was twelve years old, she was scared and she thought she had done something wrong.
TLG said that she remembered kissing LC’s stepfather while sitting on the lounge in the lounge room on one other occasion. The same sort of thing had happened, an open mouth kiss, although she could not remember whether it was part of a game the second time. She said there were only those two episodes of kissing in the lounge room that occurred.
TLG remembered there had been a few other times when LC’s stepfather had kissed her in the bedroom. She said she has flashbacks of being in the bedroom and just kissing. LC was there as well on the other occasions, but she could not remember if her stepfather had been kissing LC as well. LC’s mother was never there when the kissing incidents occurred.
Count 4 – Indecent assault - TLG
TLG described other sexual activity that had taken place more than once in LC’s mother’s bedroom. The first time she became aware of sexual activity in the mother’s bedroom was again on an occasion when she was sleeping over. She remembers waking up in the night, getting up and then standing at the door of LC’s mother’s bedroom. There was enough light for her to see what was happening in the room. She said she could see the top half of the man from under the quilt. He was on top of LC and moving up and down. It appeared to her he was having sex with LC. She understood what having sex was from what she had seen on television.
TLG said that the man asked her to come into the room and her next memory is being in the bed with LC and the man. She saw the man was naked. TLG said that she remembered him kissing her. He was also kissing LC, going back and forth from her to LC. TLG said she remembered the man rubbing her vagina and inserting his finger into her vagina while kissing. She said she was shocked. She did not know what was happening. She is not sure how the incident came to an end. She could not remember going back to bed and her memory is a blank after her recollection of the man rubbing her vagina and inserting his finger in her vagina.
She said that she is sure the man had sex with her, but her memory seems to stop from the moment after the insertion of a finger into her vagina. For some reason she said her memory has just gone – it stops there as if she is too scared to think any further. Although she had a conviction that there had been other sexual activity with LC’s stepfather, she did not distinctly remember any time other than on the first occasion, which she thought she remembered so clearly perhaps because it was the first time it happened. As for any other incidents which she remembered occurring in LC’s mother’s bedroom, all she could basically remember was the kissing.
TLG said that after about a year or possibly longer, LC moved away and she was no longer friendly with her. She never saw her again.
Complaint by TLG
TLG said that what happened to her was real and had no dreamlike quality about it. She conceded that her memory might not be as good as other people’s, but she said she remembered what had happened to her and she was just sorry she had not spoken up earlier about it.
TLG said that what had happened played on her mind. She remembered going past shopping centres where she saw the name of LC’s real father’s business and she wanted to ring him and tell him what was happening, but she never built up the courage to do it.
TLG said that she had not been able to tell her parents or anyone else at the time. She said it is not the greatest thing that you want to tell anyone. She blamed herself and she did not know whom she could trust or tell. She said she was young and scared and thought she had done something wrong. She said that she had lived with the guilt all these years.
She had tried telling her husband over the years, more through arguments, when they had had issues in their marriage. She had tried blurting it out to him to let him know that something had happened but never going into detail, on account of embarrassment and shame about what had happened. All the problems in the marriage had been about her lack of intimacy. They had separated for a short time.
TLG ’s husband gave evidence. He said that they had been in a relationship since October 1986 and had married in November 1992. Their first child, a son was born on the 11 January 1990. He said that in about 2000, he and his wife had separated for a short time. In the course of the separation, they had some discussions during which they talked about some things that had happened to her as a child, when she was about twelve or thirteen years old. He said that TLG had told him that her friend’s mother’s boyfriend had made her give him oral sex. He tried to talk more to her about it but she just clammed up. She had broken down and cried. He had tried to quiz her more on the matter over days and possibly weeks but she would not come forward with any more information.
TLG said that she had never had oral sex with LC’s stepfather and had not mentioned LC’s name to her husband. She had not told her husband that she had been made to give LC’s stepfather oral sex.
TLG’s sister, DD, gave evidence. She said her sister TLG is about fifteen years younger than she is. She said she first spoke to her sister about sexual abuse of her as a child in about the year 2000. She and her husband had gone to TLG’s house. She did her best to prompt her sister to talk about the topic of sexual abuse. TLG had told them that she could not remember what happened. After about half an hour she said she had been visiting a friend, things happened so quickly, that the man who had perpetrated the abuse on her just grabbed her and things happened in the friend’s bedroom. There was no discussion about the topic of sexual abuse until two years later. Her sister went to her home and asked her to tell her what had happened in relation to the sexual abuse by a male person who had been her friend’s father. DD said that TLG had told her that her memory was that the man had grabbed her and thrown her onto the bed and she had run out of the house. DD asked her sister why she had not told anybody and she replied that she was just frightened, young and scared – just a young girl. When she had been talking to her, her sister appeared very apprehensive about saying anything. She was very reserved, scared and did not want to say too much. She formed the impression that TLG was very apprehensive. She said that her sister did not tell her about any particular sexual act or acts that took place.
TLG denied having conversations with her sister and her sister’s husband in around the year 2000, in particular, she said she could not remember ever having a conversation with her sister where she described a male person at a friend’s house grabbing her in the bedroom. She denied having a conversation about two years after that in which she told her sister that the male person in the house was her friend’s father and that she had remembered him grabbing her, throwing her down on to the bed and then she remembered running out of the house. She was certain that she could not have had those conversations because she just cannot talk to anyone about it. She made no allegation that LC’s stepfather made her perform oral sex on him nor that he grabbed her and threw her on to a bed, nor that any sexual behaviour took place in LC’s bedroom and nor that she ran out of the house after sexual activity.
It was only after police came to her door about two years ago that she had ever mentioned what had happened to police. She said if the police had not come to her door, she probably would have taken it to her grave.
Detective Graham has been a police officer for twenty-six years. He received a report from a police officer who had spoken to LC about another matter on the 19 October 2005. He phoned LC on the same day. During the course of his investigation the name of TLG was mentioned to him by LC and he made efforts to locate that person. He spoke to TLG and took statements from her. He said that during the course of the investigation he never disclosed to LC or any member of LC’s family anything that TLG had told him and he had recorded in her statement.
The evidence of the accused
The accused denied that he had ever kissed either of the complainants in an indecent way. He denied that he had ever touched LC in a sexual way or had sexual intercourse with her. He denied that he had ever touched or assaulted TLG in a sexual or indecent way.
The accused said that he had first met NPC and SAG through NPC’s brother, KC, with whom he had worked in Dampier. He was a very close friend of KC’s. He came to know NPC and SAG quite well after meeting them through KC in about 1975 or 1976. He had also come to know KC’s parents, working in their company in 1979 as a cleaner.
In 1979 SAG and NPC separated and the accused began a relationship with SAG. He said that he remained in an intimate relationship with SAG until shortly before KC died on 5 February 1981.
The accused accepted that when SAG and her daughters were living at Blackwood, LC would come into the bedroom where he was sleeping, hop on top of him and say, “Pretend I’m your blanket”. He said initially it was quite innocent and he thought it was a show of affection for him. He said that when LC started to wriggle around a lot around his genital area with her genital area, between her legs and hips, the behaviour began to have a sexual inference associated with it. He said LC instigated the behaviour. He realised he was starting to be aroused by what she was doing, getting an erection, and so he pushed her off. The accused said to LC: “This behaviour is going to stop”, because he felt very uncomfortable. He said that he believed there was a sexual element in it and it was not the way that a girl should be treated by someone who was looked on as a stepfather. The accused said that after he told LC it had to stop, she replied, “Don’t worry, I know what an erection is, I’ve felt one when I sat on my grandfather’s lap”, or something like that. The accused said he counselled her and told her he felt very uncomfortable about the behaviour and he did not want it to continue. The accused said he did not mention LC’s behaviour to her mother.
The accused said that while he was in a relationship with SAG, he spent time with her and her daughters at the house in Smithfield. He was regularly there at weekends and on the occasions when SAG worked Saturday nights, he would baby-sit the girls fairly regularly. Even after the intimate relationship between the accused and SAG had ceased, he continued to baby sit on Saturday nights, although less frequently.
The accused said that on four or five occasions when he was babysitting, LC would have a friend staying overnight. He remembered TLG as a very quiet and shy girl.
The accused said that when SAG worked a Saturday night shift, she would generally leave for work about ten o’clock. He said that LC was sometimes up when SAG left for work and other times she would be in her bedroom with her friend, who was staying over. He said that he never went into her room after she had gone to bed to tell her she could get up again.
The accused said that his perception of LC’s relationship with her uncle KC was that they had had very limited contact. He said she was no doubt fond of him and she was very upset about his death. He denied that she had ever asked him any questions about her uncle KC. He may have come up in conversations after his funeral. KC died on 5 February 1981.
The accused said that after KC’s death, his relationship with NPC deteriorated. NPC had visited him at his brother’s house and challenged another mutual friend of KC’s with being responsible in some way for KC’s death.
The accused said that there had been one séance in which he had participated with LC and TLG at the Smithfield house. His memory of it was very vague. He said he did not suggest it take place, he had no interest in séances. He did not like them. He did not remember who had conducted the séance or anything about the content of it. He denied there had been any kissing competition after the séance.
The accused said that LC never gave any indication that she felt apprehensive or scared around him. She was excited when he came over and was very kind and gentle. She would walk to the Smithfield station to meet him on the times he went there by train. He said he never engaged in a discussion with LC about her uncle KC wanting to kiss her or touch her in a sexual way. He denied kissing her on the vagina or having sexual intercourse and ejaculating in her presence. He denied ever showering with her or discussing her younger sister VJC with LC. He denied ever forcing LC’s mouth on to his erect penis and ejaculating. He said he never used force of any kind on LC.
The accused said that when SAG and her daughters moved from Smithfield to Hillcrest, he remained friends with SAG. He denied any incident at Hillcrest involving his kissing LC’s vagina when she was ill on the sofa.
The accused described contact he had had with LC independently of his relationship with her mother SAG. He said that in the winter months of 1982, when LC would have been eleven or twelve years old, she had arrived at a house where he was living, shared university accommodation, in North Adelaide. LC told him that she was wagging school that day. The accused said he left to attend a lecture, leaving the girls in the care of his flatmates. After he returned home at twelve thirty, the girls had changed their clothes from school uniforms into clothes lent to them by his flatmate. He said that he, the flatmates and the two girls went for a drive for about an hour and a short walk before he took the girls home. When he dropped LC’s friend home, her parents thanked him for bringing her home safely. When he dropped LC home to Hillcrest, he explained the situation and SAG had told LC, “at least you had the good sense to go to someone you could trust”.
A couple of months later, in 1982, the accused arranged for a casting agent to interview LC about pursuing an interest in drama. A month or two after that, he arranged tickets for a Split Enz concert. He went with SAG and her daughter LC to the Thebarton Theatre, but before they reached the theatre, LC was hit by a car as they were crossing Henley Beach Road. She was admitted to the Women’s and Children’s Hospital for about a week. During the time she was in hospital, the accused said he visited her nearly every day. She appeared to enjoy his company during the visits.
Towards the end of 1982, the accused said SAG and her daughters visited him when he was staying at his brother’s house in Manningham for a BBQ. He said they stayed at the house overnight. The following morning the accused said that SAG and her daughter VJC went back to their house at Hillcrest and he took LC to school. LC had asked him to write her a note, because they were running late. He had told her he could not write a note because he was not her guardian, but she insisted.
The accused said that in 1983 he had a leadlight shop at Hampstead Gardens. LC visited the shop more than once. She had on one occasion telephoned him at the leadlight shop to collect her from a bus stop at Collinswood because she did not have the bus money to get home. He collected her and took her home to Hillcrest. He stayed there watching television until SAG returned home.
The accused said that he had lived with SAG’s sister, DSD, for about three months in 1983. He said LC visited her aunt, DSD, quite often. He said LC stayed overnight for days at a time. He said her aunt, DSD, had a boyfriend and a young child. When the boyfriend was at the house, the accused said that LC would come to his room and watch television with him. He said he got along very well with LC during the time he was living at her aunt’s house.
SAG’s younger sister, DSD, said in her evidence that the accused had boarded with her in her house at Gilles Plains for three or four months, in about 1982 or 1983. The house had three bedrooms. She had a young daughter, born in January 1981, who slept in her own room. DSD said that LC had visited her there but she did not remember her staying overnight, although it was possible. DSD said she had no boyfriend at that time.
The accused said that he had no obvious recollection of visiting LC’s grandparents at Belair while LC lived there and attended Blackwood High School. After KC’s death, he did not visit their house very often; it would only have been about monthly, which he described as very rarely. He said that on one occasion LC had contacted him to ask if she could borrow his dog for a pet’s day that was being conducted at Blackwood High School. He had a Great Dane called Red. He made arrangements to take the dog to the school for her. He said his relationship with LC then was very good. He denied ever having touched LC on the breasts when she was at her grandparents’ house.
The accused described an occasion on Christmas Eve in 1984 when he was visiting SAG at the Hillcrest house with two friends of his. He said that after his friends had left, LC had asked her mother if the accused could stay and look after her while her mother went to midnight mass. He said that LC had told her mother that she was frightened that the male friend who had been there might come back and disturb her. He remained at the house while SAG and her other daughter VJC went to midnight mass. LC had gone to bed and appeared relaxed. He watched television until SAG returned.
The accused said that when LC was fifteen or sixteen, she had a boyfriend, who had a young daughter. He said that he saw LC once or twice a week at Hillcrest, or at his house at Klemzig or at her aunt’s house. He said that LC had visited his house at Klemzig sometimes on her own and sometimes with friends. He said his relationship with LC was very good at that time. He said he had never bought alcohol for LC and her friends.
The accused said that he had attended a celebration of LC’s 16th birthday with her mother at the Cremorne Hotel on Unley Road. He said that he drove LC there from her home and drove her back. On the way home she was affected by alcohol and had asked him to stop the car because she needed to vomit. SAG had travelled independently.
A few months after LC’s 16th birthday, the accused said that he had gone with her at her request to Glenelg Beach. She had been meeting a friend who had been living in Melbourne. He said they sat on the beach, relaxed, sunbathed and chatted. He and LC travelled back to Adelaide together before he caught a bus home.
He described an occasion when he had spent time at a park with LC, her boyfriend and a girlfriend of LC’s. They were drinking stubbies of beer. He said LC would have been about seventeen years old at the time. LC and her friend had removed all of the top part of their clothes. LC appeared to be affected by alcohol. Her friend had lived with the accused for about three months at Klemzig. She was about the same age as LC. He had asked her to leave because she had not been paying rent.
The accused described a trip he had taken with LC and a friend to the Riverland. LC and her friend had arrived at his house at Klemzig in the afternoon. They had chatted, had a few drinks and talked. During the course of the evening he received a telephone call from a friend offering him amphetamines. He made arrangements to collect it from a hotel. That evidence was volunteered in the course of examination-in-chief. After receiving a warning about incriminating himself with further evidence on the topic, the accused exercised his privilege about self-incrimination and did not wish to give any further evidence on that topic. He said that he and the girls had driven to the Riverland, intending to visit a friend of his and LC’s at Barmera. They could not find the place and finished up at the Big Orange late at night. They had a nap and then breakfast and they drove home. He did some of the driving and LC did some of the driving. The accused said that he had been stopped by a police patrol car and the police officer had told him that one of the tail lights was not working. He said he would have it fixed at a nearby service station and he was allowed to proceed.
The accused said that in around 1986 he moved from Thistle Avenue at Klemzig to accommodation he shared with LC at Windsor Gardens. He said she had asked him to move in to that accommodation, which she was sharing with another man. The accused said that he had moved out after he noticed that money was being taken from a tin in his bedroom. He said that LC had tried to persuade him to stay, telling him that she would make sure the stealing stopped. The accused moved out of the Windsor Gardens accommodation to live with a friend at Trinity Gardens. LC visited him there on her own and with friends. She visited on one occasion with the friend who had been living in Melbourne. On the one occasion the accused mentioned, LC and her friend had decided to go for a drive with the accused in the hills. They had a few drinks and socialised and chatted. That would have been at the end of 1986.
The accused said that he completed his Diploma of Teaching in June 1987. At that time he was living either at his parents’ home or at a house he had bought at Rosewater. In 1988 he was teaching at Oodnadatta Aboriginal School and after six months he moved to Whyalla. The following year 1989, he was teaching in Port Augusta.
In 1989, when he was in Adelaide at his parents’ house during the school holidays, the accused said he had received a telephone call from SAG. He said that she had asked him if he had been abusing LC sexually. He asked her what she was talking about. She continued to accuse him of abusing LC and she became angry. He said he did not have much of an opportunity to respond to her during the phone call. He had denied to SAG that he had abused LC sexually. The accused denied saying something like “I loved those two girls, I did not mean to hurt them”. SAG had ended the phone call abruptly. The accused said he had not had contact from SAG since around June 1987 and he regarded the accusation she made in the telephone call in 1989 as absolute nonsense. He had not seen LC since 1986 or 1987. The accused said he did nothing about the accusation made by SAG.
The day after the telephone call from SAG, the accused said LC came around to his house with another girl he did not recognise. The other girl stayed in the car. LC got out of the car. She was wearing jeans, a T-shirt and bare feet. She appeared to be staggering and unsteady on her feet and she was slurring her words. Her manner was pleasant and happy, even jovial. The accused said that LC told him that she wanted to collect photographs of herself, VJC and the family in general. He understood she meant snapshots he had taken while he was in a relationship with SAG at Smithfield and at various camps they had been on together on holidays. He told her he had no objection and he went with LC to the shed at the back of the house. He went to a carton where he knew the photographs were and located a number of photographs for her. It took him about an hour to find them.
After giving the photographs to LC, the accused said LC told him she wanted $12,000 to stop her going to the police and reporting the accused for sexually abusing her. He regarded the demand as ludicrous and swore at her. The exchange became angry and heated. He said that his father was in the lounge room and his mother was also at home. The accused said his mother came outside and he again swore at LC and she left the property. He said he did not call the police: he was not afraid of what she was saying. She had never mentioned sexual abuse previously.
The following day, the accused said LC came back to his parents’ home. His mother came and told him that LC was at the door wanting to see him. He went to the door and asked LC what she wanted. She started to cry and she eventually came inside. He took her to the lounge to sit down. He asked what was the matter. She told him she did not want to go through this any more, she wanted to stop this whole thing. She was very upset. The accused understood that she was talking about the accusations she had made the previous day. She told him that her parents and family were forcing her to do it. She wanted to change her life which she said was a total mess. The accused said he gave her a cup of tea and she calmed down, although not completely.
The accused spoke to his mother and told her that he would like to help LC in some way because he felt sorry for her. His mother advised against going too far. The accused said he told his mother, “I wonder if some money would help her, assist her, in changing her life and getting herself back on track”. He had a figure of about $2,000 in mind. The accused said he told LC, “L, basically, I am very concerned about your situation, upset about it, and I’d like to try and help you in some way. I will try and help you get your life back on track”. He asked her, “If I gave you some money, would that be of any assistance to you”? She said, “Well, it would be of help”. He suggested the sum of about $2,000. He told her, “L, I’m prepared to help you and I will give you this $2,000 in the expectation that, you know, you use it to put your life back on track”.
The accused said he made arrangements to give LC the money the next evening. She came back the next evening on her own. Her manner was very friendly. She came just inside the house and he gave her the money - $2,000 in cash.
As he gave her the money, he said, “L, I sincerely hope that you use this wisely and that you use it to benefit your life”. She took the money. After she had the taken it, the accused said that LC started abusing him, accusing him of lying and of doing things to her sister, VJC. She told him she never wanted to see him again. It was a tirade in which she accused him of sexually abusing her. He felt confused, angry, perplexed and shocked and he told her to leave.
The accused said that the following day, SAG and her younger daughter, VJC, came to his parents’ house. His mother went to the door and he had heard a loud noise, which on investigation, proved to be SAG and his mother engaging in conversation. He heard SAG making threats against him and again alleging that he had sexually abused LC. He went to the door and told SAG that he had had enough and he told them to leave. He told his mother the allegations were untrue. He may have accused SAG of being a liar. He said that VJC was standing next to her mother during the conversation and she left with her mother. He had not seen them since. The accused said that he had never heard from anyone that NPC had put out word that he wanted to talk to him about the allegations made by LC.
It must be acknowledged that the accused was at a forensic disadvantage in not now being able to call his mother or his father to give evidence on his behalf. His mother died in 2002 and his father in 2005. However, where I have found it necessary to resolve any factual differences between accounts of the contact between the accused and LC, and the accused and SAG, at the accused’s parent’s house, I have given the accused the benefit of any doubt about that evidence. I have not found it necessary to resolve factual discrepancies nor have I made any adverse finding against the accused on account of any conversation or meeting with LC or SAG which might have been construed as an admission of guilt on his part. In coming to the verdict I have taken what the accused has told me about those matters in his favour.
In 1991, the accused obtained a teaching job with the music branch of the Department of Education at Thebarton, in Adelaide. He held that position until he resigned in about 1994.
The accused described later contact with LC, following a telephone call from the Education Department in 1992. He was told that a person who had identified him or herself as a former college colleague had been trying to make contact with him. He was given a phone number to call. When he rang the number he found it was LC. He said he was shocked and stunned. LC had told him she was in a little bit of trouble and she wanted to catch up with him to talk about it. He made arrangements to meet her at the railway station after work the following day. After he picked her up in his car the following day as arranged, they drove to the parklands area around Greenhill Road and had a chat. LC had told him that she was in an abusive relationship and she wanted to stay somewhere to get over it. He agreed she could stay with him. He dropped her back in the city and arranged to meet her the next day again. The following day he picked her up and took her to his house at Rosewater. She slept that night on a li-lo in the lounge.
The accused said that LC had told him that she had recently been to a party involving some bikies and had been drugged and raped by at least five men. He understood it had happened recently. She told him she was okay but still a little sore around her groin area and mid section. She said she was sick and tired of her life and this time she wanted to change it for good. He told her that her accusations of sexual abuse against her were not true and she said, “Yes that’s right,” her first sexual intercourse experience was very special. She told the accused that she had been put under a lot of pressure by her family and parents and that was the explanation for her allegations. She told him she did not want to pursue the things she had said and wanted to put her past behind her. She stayed at the Rosewater house for about a week. She said she had been in an abusive relationship with a man who had been violent towards her and she wanted it to stop. She had asked the accused if he remembered TLG. He told her he did not. He asked her to describe her to jog his memory. He said that LC had described her as a slim, quiet girl with buckteeth, who had stayed at her home at Smithfield. He vaguely remembered whom she was talking about. He said she told him that TLG had had a baby and he said, “That’s good. If you see her, give her my congratulations. Pass on my congratulations”.
The accused said that LC had told him about the letter her father had written to the Education Department. She thought the contents were “pretty horrible - pretty disgusting”. She said that she had tried to persuade her father not to send the letter, but he would not listen. She made it clear the letter had been about the accused. The accused said that while LC was staying with him at Rosewater, he took her to see an Ear, Nose and Throat specialist in North Adelaide.
After about a week LC moved to a flat at North Glenelg. The accused gave her a spare television with a remote control. He continued to see her every week while she was living there. They went to the pub, had a drink, played pool or eight ball and had a few laughs. She told him not to come in if he saw a white car outside the flat because that would be her mother’s car. LC showed him a crocodile skin which she had been given by her uncle. She asked the accused if he knew anywhere she could sell it. On one occasion when he was at the flat, LC had told him to be quiet when someone knocked at the door as she thought it was her father. The last time he had seen LC before the trial had been one particular night at the North Glenelg apartment. He visited her there and they went to a pub, played some eight ball and had a couple of drinks. He had dropped her off at a place at Windsor Gardens at her request. He had seen her walk into the house and speak to a man on the veranda outside the house. There appeared to have been an argument and he saw the man punch LC in the mouth. She fell to the ground. He heard the man threaten her and abuse her. Eventually he walked away and LC came back to the car, crying and upset. There was blood coming from her mouth. She told the accused that she had to stay there and could not go back with him. He tried to persuade her not to stay. She gave him a big hug and told him, crying and upset, “Thank you for what you have done to help me”, and she went back into the house. The accused drove off and that was the last time he saw her.
Again, in reaching a verdict, I have accepted the accused’s account of his contact with LC after her fourteenth birthday.
Conclusion
I reject the evidence of the accused denying the charges. That does not necessarily mean that the accused is guilty as charged. It is necessary to be satisfied of his guilt of the offences charged beyond reasonable doubt, giving each charge separate consideration, on the evidence called by the prosecution.
The accused was born on 11 February 1954. He was 26 or 27 years old when he began an intimate relationship with SAG and began staying overnight with her and her two daughters at Aldgate and Blackwood.
There is no dispute, however the activity began, that the accused became sexually aroused by LC when she was ‘pretending to be his blanket’ when the accused stayed overnight at the house at Blackwood. LC would have been nine or ten years old at the time. Although concerned about the sexual connotations associated on his own account with the behaviour, the accused did not mention either the activity or his concerns to LC’s mother, with whom he was then in an intimate relationship.
Their intimate relationship was over by the time the accused’s friend KC died on 5 February 1981. The accused and SAG remained friends and after the family moved to Smithfield, the accused stayed overnight, sleeping in SAG’s bed, to mind SAG’s two daughters while SAG was working a night shift as a nurse. LC was then 10 years old and her younger sister, VJC, was three.
TLG was a friend of LC. As at 5 February 1981, she was eleven years old. She stayed overnight on the weekend on a number of occasions during the period in which the family lived at Smithfield. When the family moved away in April 1982, TLG and LC had no further contact at all.
Sometime after KC’s death, the accused conducted a séance in which he and the two girls LC and TLG participated. I reject the evidence of the accused that the séance was instigated by either of the young girls.
There is no rule of law or practice requiring a warning that it is unsafe to convict the accused on the uncorroborated evidence of an alleged victim of a sexual offence.[6] Nevertheless, I have scrutinised the evidence of both TLG and LC with great care. I am conscious that it would be dangerous to find the accused guilty on the evidence of either of the complainants alone.
[6] Section 34I(5) Evidence Act 1929
TLG presented at trial as careful in giving evidence only of events of which she had a clear memory. I accept the evidence of TLG. I found her account of events at the Smithfield house to be honest, straightforward and reliable. I have considered and rejected the possibility that her account is the product of fantasy about sexual matters, which may have hardened over time from fantasy or semi-fantasy into absolute conviction of reality. (Doggett v R (2001) 208 CLR 343 at 376)
In my opinion, her differing accounts to her husband and to her sister of sexual abuse perpetrated by the accused are explicable by TLG’s obvious dismay and embarrassment at discussing those matters with anyone, or possibly through a misunderstanding or misreporting of the account she gave them.
Such discrepancies as there are between TLG’s account of events at the house at Smithfield, both charged acts of the accused and conduct which is not the subject of charges, and the account of LC, are only to be expected, given the age of the girls in 1981 to 1982 and the effect on memory as a result of the passage of time since then.
It is the accused who emphasised his ongoing relationship with LC, in the years after her fourteenth birthday. It is not to her credit that LC did not disclose details of her contact with the accused in that period to the authorities. In my opinion, that does not make her account necessarily untruthful or unreliable. It must however be subjected to very close scrutiny and considered in the light of the evidence as a whole.
The contact LC had in her teenage years with the accused was without the knowledge of her mother. It involved on one occasion LC being inappropriately absent from school, a fact of which the accused was aware. The accused took LC and her friend for a drive. The visits by LC and her friends to houses where the accused was living, the trip to the Riverland, introduced into evidence by the accused himself, allow for an inference, which I draw, that the accused and LC were engaged in an unhealthy and inappropriate relationship, having regard to the discrepancies in their ages and to the fact that the accused had at one time been in a position of some responsibility towards LC.
On other occasions, the accused drank alcohol and participated with LC and other young people, nearly half his age, in the sort of social activity which would normally require some sort of explanation. In my opinion, the explanation is found in the sexual attraction the accused had for LC when she was a young girl, and her idea that on account of that she could ask the accused for favours and expect him to comply.
In my opinion, her continuing contact and the nature of the relationship LC maintained with the accused is entirely consistent with her account of sexual abuse by the accused when LC was a young girl. I accept her evidence that she felt she was able to exert some power over the accused and to use him for her own benefit on account of his sexual conduct towards her as a child.
The fact that LC demanded and took money from the accused is also consistent with confidence on her part that the accused was unlikely to refuse her. Even if complaint about the accused’s conduct to the authorities was motivated by a desire for compensation, about which I make no finding, LC is not therefore to be found to have fabricated the allegations against the accused.
I have given very careful consideration to the question of reliability of the evidence of LC, especially relating to events which are not supported by the evidence of TLG. After scrutinising her evidence very carefully, having regard to the way LC came across in the witness box, and taking into account other evidence given at trial, I am satisfied beyond reasonable doubt of the evidence LC gave both in relation to each of the charged offences involving LC and in relation to the uncharged acts of the accused.
Counts 2 and 3
I am satisfied on the evidence beyond reasonable doubt that the accused was sexually attracted to both LC and TLG. Having regard to the evidence of both TLG and LC, to the fact that there has been no contact between them since 1982, and to the close correspondence of the account each gave in relation to the kissing competition or game instigated by the accused, I am satisfied beyond reasonable doubt that the accused suggested a kissing competition to the girls and that the accused kissed both LC and TLG in a sexual and indecent manner on a Saturday night at the Smithfield house in the period alleged in the information.
Count 4
Keeping in mind the differing accounts of TLG and LC relating to sexual activity taking place in SAG’s bed, I nevertheless accept the evidence of TLG relating to count 4 on the information. In my opinion, there may well have been incidents which one or other of the two girls no longer clearly remember, accounting for discrepancies in the evidence they gave. I am satisfied beyond reasonable doubt that the accused kissed TLG and inserted his finger into her vagina in the way she described.
Count 5
I accept the evidence of LC that after the kissing competition, the accused told her on a number of occasions that her uncle KC had said many times that he loved her so much that he wanted to kiss her in that manner and that her uncle KC had wanted to do other things to her, which he told her was what uncles do when they love their nieces. I am satisfied beyond reasonable doubt that the accused had come into her bedroom on a number of nights at the Smithfield house between 5 February 1981 and 9 April 1982, when she was 11 years old, and she woke to find him under the bedclothes, under the quilt, kissing her vagina.
Count 6
I accept LC’s evidence that on at least one occasion after she woke to find the accused under the quilt kissing her vagina, the accused had forced her legs apart and I am satisfied beyond reasonable doubt that the accused inserted his erect penis into her vagina about an inch or so past the labia majora, ejaculating over her vagina and stomach.
Count 7
I accept LC’s account and I am satisfied beyond reasonable doubt that on one occasion at the Smithfield house the accused told LC he wanted her to kiss his penis, telling her that it tasted like chocolate, and that he forced her mouth onto his naked erect penis. When her lips touched his penis, the accused ejaculated and she vomited all over his body.
Count 8
I accept the evidence of LC that on an occasion the accused had been visiting the Hillcrest house, between 9 April 1982 and 31 December 1984, and after her mother had gone to bed, the accused came over to where LC was lying on a couch, and I am satisfied beyond reasonable doubt that the accused went under the quilt, pulled her underwear to the side and kissed her vagina violently, holding her legs.
Verdict
I find the accused guilty as charged on information of 2 June 2008. I enter verdicts of guilty in respect of counts 2-8 inclusive.
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