R v T, LP
[2017] SADC 29
•30 March 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, LP
Criminal Trial by Judge Alone
[2017] SADC 29
Reasons for the Verdicts of Her Honour Judge Tracey
30 March 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with three counts of Persistent Sexual Exploitation of a Child and in the alternative, three counts of Unlawful Sexual Intercourse. The accused is the step-father of the three complainants - the offences allegedly took place when they were children and over a lengthy period of time. All counts were tried jointly without objection. Uncharged sexual acts were alleged. There was a significant delay before the trial. The evidence included uncharged acts of violence directed towards the step children. Collusion cannot be excluded beyond reasonable doubt and significant inconsistencies within evidence of each complainant. The accused elected for trial by judge alone.
Verdicts - Not guilty all counts.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 50(1); Evidence Act 1929 (SA) s 34P(4), referred to.
R v MJJ (2013) 117 SASR 81; BBH v The Queen (2012) 245 CLR 499, considered.
R v T, LP
[2017] SADC 29Introduction
The accused (LT) was charged on Information with three counts of Persistent Sexual Exploitation of a Child and, in the alternative, three counts of Unlawful Sexual Intercourse involving three brothers, AL, GT and HT, as follows:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
LT between the 1st day of September 1995 and the 31st day of December 1999 at Murray Bridge, over a period of not less than three days, committed more than one act of sexual exploitation of AL, a person under the age of 18 years, whilst he was in a position of authority.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a) Kissing AL on the mouth on more than one occasion.
b) Touching AL’s penis on more than one occasion.
c) Performing fellatio upon AL on more than one occasion.
d) Causing AL to perform fellatio upon him on more than one occasion.
e) Causing AL to rub his body against his body on more than one occasion.
f) Attempting to insert his penis into the anus of AL on more than one occasion.
g) Causing AL to attempt to insert his penis into his anus on more than one occasion.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
LT between the 25th day of October 1995 and 31st day of December 1997 at Murray Bridge, had sexual intercourse with AL, a person of the age of about 13 years, by performing an act of fellatio upon him.
Third Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
LT, between the 1st day of September 1995 and the 29th day of October 2003 at Murray Bridge, over a period of not less than three days, committed more than one act of sexual exploitation of GT, a person under the age of 18 years, whilst he was in a position of authority.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a)Kissing GT on the mouth on more than one occasion.
b)Touching GT’s penis on more than one occasion.
c)Causing GT to touch his penis on more than one occasion.
d)Performing fellatio upon GT on more than one occasion.
e)Causing GT to perform fellatio upon him on more than one occasion.
f)Causing GT to rub his penis against his penis on more than one occasion.
g)Inserting his penis into the anus of GT on more than one occasion.
h)Causing GT to insert his penis into his anus on more than one occasion.
i)Causing GT to urinate on him on more than one occasion.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
LT between the 30th day of October 1998 and 30th day of October 2000 at Murray Bridge, had sexual intercourse with GT, a person of the age of about 14 years, by causing GT to insert his penis into his anus.
Fifth Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
LT between the 1st day of September 1995 and the 29th day of October 2003 at Murray Bridge, over a period of not less than three days, committed more than one act of sexual exploitation of HT, a person under the age of 18 years, whilst in a position of authority.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a)Kissing HT on the mouth on more than one occasion.
b)Touching HT’s penis on more than one occasion.
c)Causing HT to touch his penis on more than one occasion.
d)Performing fellatio upon HT on more than one occasion.
e)Causing HT to perform an act of fellatio upon him on more than one occasion.
f)Causing HT to rub his penis against his penis on more than one occasion.
g)Inserting his penis into the anus of HT on more than one occasion.
h)Causing HT to insert his penis into his anus on more than one occasion.
i)Aiding, abetting, counselling or procuring HT to touch the penis of another on one occasion.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
LT between the 30th day of October 1997 and 31st day of December 1999 at Murray Bridge, had sexual intercourse with HT, a person of the age of about 14 years, by inserting his penis into his anus.
General Background
AL was born in November 1982. GT and HT are twins, born in December 1985.
The accused is the stepfather of the complainants. He formed a relationship with their mother SL, in 1986 when she lived in Lockridge in Western Australia. At that time AL was three years of age and GT and HT were less than 12 months old.
Moving from state to state was a feature of the complainants’ early childhood. Within 12 months of SL meeting the accused, they all moved to Queensland, living initially in a caravan park at Beenleigh then moving to another caravan park at Amberley Air Force Base. The family then moved into a rental property in Brassall for 12 months before moving to a property at Robert Street, Raymonds Hill.
While the family were living at Robert Street, a woman by the name of VK became a part of their life. From the late 1980’s until the time of the accused’s arrest, he and VK lived in close proximity to one another, including when the family moved to South Australia. The accused and VK have two children, TK, a son and T, a daughter. The accused and SL have a daughter ST, born in November 1990. After ST’s birth, SL left South Australia and returned to Western Australia for approximately three months. She took ST with her, and the complainants were left with the accused who had responsibility for their day to day care.
After three months, SL returned to Queensland, moving into the same suburb as the accused and her sons but into a different house. During this time, VK would live in her own house and with SL from time to time.
The accused and the complainants moved one further time whilst in Queensland, to Gatton, a suburb of Ipswich. Again, SL lived separately from the accused and the complainants, with her daughter.
In mid to late 1995, the accused, SL, the complainants and ST, all moved to South Australia. Initially they resided in a set of units behind a service station in Murray Bridge, moving shortly thereafter into separate Housing Trust homes in Murray Bridge.
The accused and the complainants lived at Plover Court in Murray Bridge. VK also moved to Murray Bridge with her son TK. She resided separately, while SL lived nearby at Lomas Street with her daughter.
AL gave evidence of acts of abuse that occurred while living in Western Australia and all complainants gave evidence of acts alleged to have occurred in Queensland, such uncharged acts occurring outside the jurisdiction.
Each complainant gave evidence of the abuse as particularised on the information, occurring in Murray Bridge at a house they shared with the accused at Plover Court, and of abuse carried out by accused on others in their presence.
It is alleged that sexual abuse committed against AL continued in Plover Court until AL was about 14 or 15 years of age; with GT until he was 17; and with HT until he was aged 15.
Witnesses
The prosecution called the following witnesses:
·AL, GT and HT, the complainants;
·TW who at age 15, had been in a boyfriend/girlfriend relationship with AL;
·JD, the mother of TW;
·BG, at whose house AL lived for approximately two years;
·AM, who went to school with GT and HT and who it was alleged by GT had been sexually abused by the accused in his presence;
·TS, a friend of AL, who is alleged to have witnessed LT’s behaviour to TK and the complainants;
·SL, the mother of AL, GT and HT;
·Sergeant Peter Wilkinson, a police officer who gave evidence of his efforts to interview other alleged victims; and
·Senior Constable Tabetha Snowden, a police officer who interviewed HT.
The defence called:
·GH, a long-time friend of the accused;
·TK, son of the accused and VK; and
·CC, the accused’s current partner.
Elements of the offences
Persistent Sexual Exploitation of a Child (Counts 1, 3 and 5)
The prosecution must prove each of the following elements of the offence beyond reasonable doubt: (1) the accused was an adult (2) that the accused committed more than one act of sexual exploitation (3) that the acts must have occurred over a period of not less than three days, (4) that the complainant was under the prescribed age that is, under the age of 17 years.
In relation to the first and fourth elements, the dates of birth of the accused and the complainants were agreed facts. I find that the accused was an adult at the time the alleged acts were committed and that each complainant was under the age of 17 years at the relevant time.
It is the second element of the offence that is in dispute in this trial, that is whether he committed the acts alleged.
In relation to the third element, that is that the acts were committed over a period of not less than three days, the evidence of each complainant is that acts of sexual exploitation occurred in South Australia over several years.
Unlawful Sexual Intercourse (Counts 2, 4 and 6)
The prosecution must prove beyond reasonable doubt: (1) the accused had sexual intercourse with the complainant; and (2) the complainant was under the age of 17 years at the time.
Again there is no dispute as to the age of the three complainants at the time of the alleged events. The issue at trial is whether the prosecution has proven that the accused had sexual intercourse as alleged.
Preliminary issues
The prosecution had filed a Notice of Intention to Adduce Evidence of Discreditable Conduct pursuant to s 34P(4) of the Evidence Act 1929 and the accused had filed an application pursuant to Rule 49.
The nature of the discreditable conduct the prosecution sought to adduce was described as:
a) Charged and uncharged acts of sexual misconduct.
b) Evidence of discreditable acts intended or designed to encourage sexual conduct with the complainants.
c) Charged and uncharged acts of violence, hostility or threats.
Much of what had been in dispute was resolved. In particular the admissibility of evidence to be called in relation to alleged assaults or violence against the complainants was conceded by defence.
What remained were two broad headings of evidence sought to be excluded namely: (1) photographs taken by the accused of the complainants in very short, tight shorts; and (2) the abuse by the accused of children other than the complainants. I allowed evidence of the photographs and evidence of the alleged abuse of other children by the accused to be tendered in the trial for the reasons that follow.
Photographs
The accused submitted that the photographs were not in and of themselves inherently sexual, relying on BBH v The Queen[1] and to the Chief Justice’s remarks at [58] and [59]. In particular it was submitted that it would be working backwards to instil indecency into the photographs and while it was a matter of degree, the photographs would not make it ‘over the line’. In response, the prosecution submitted that the children in the photographs are seen to be posing. In particular, the outline of the child’s penis is said to be clearly shown and while the child is not naked, it is important to take into account the context in which the photographs were taken. It was alleged by the complainant AL that he was woken in the middle of the night by the accused and asked to dress in his school uniform. It would be the complainants’ evidence that they would be subject to ridicule and bullying by virtue of the shortness of the shorts. The prosecution alleged that the photographs were taken by the accused to satisfy his prurient interest and making the complainants dress in those garments was a part of the grooming process in the early stages of the sexual abuse of the complainants.
[1] (2012) 245 CLR 499.
I allowed evidence concerning the photographs and their tender as it was my view, that on inspection, the photographs taken in the circumstances to be described by AL meant they could properly be described as inherently sexual, were evidence of grooming and were taken by the accused to satisfy his prurient interests and were evidence of grooming. In the end however, after hearing the evidence, particularly of SL regarding the purchase of her children’s clothes, I did not find the photographs of any real assistance in determining the issues.
Abuse against other children
The primary purpose for which the prosecution sought to lead evidence of acts against children other than the complainants was by way of an explanation as to why the complainants did not complain about the accused’s conduct. In this regard, the prosecution placed reliance on the decision in R v MJJ.[2]
[2] (2013) 117 SASR 81.
The defence submitted that decision was not a ‘catch all’. While defence accepted that the evidence was admissible to explain the nature of the relationship between the accused and the complainants, the court could not be informed of the nature of the familial relations by how the accused is alleged to have performed acts on other children. If it was capable of doing that, while there would be a degree of probative value, it was so slight, and the prejudicial effect would outweigh the probative value. From the defence perspective, the evidence would not show a modus operandi within the family.
It was the case here however, that prosecution did not seek to lead evidence of abuse of family members or friends who were abused completely independent of the complainants. Rather, the evidence to be led was the sexual abuse of others either in the presence of the complainants or while the complainants were at home and asked by the accused to participate in some way. In my view, evidence that others would be sexually abused in the presence of the complainants and evidence with respect to the cameras, allegedly installed to watch other children showering or performing sexual acts with the complainants, was strongly probative of the commission of the offences and indicating the true state of the familial relationship and why the complainants did not complain about what was occurring. Evidence of such conduct, allegedly occurring when the complainants were at an early age, would be ‘normalising’ and go to explaining why it was that no complaint was made earlier.
Discipline
The prosecution submitted that I am able to use the evidence of the accused's violence towards AL and a lesser extent towards HT and GT, and of the accused asking TK to behave in an overtly sexual way, for relevant non-propensity purposes. These matters explain the lack of complaint, in that the accused has abused others in the presence of the complainants and illustrates the pervasive domestic environment of violence and sexual abuse which makes it more probable than would otherwise have been thought that the accused committed the offences charged.
I accept the recollections each complainant had concerning how the accused disciplined them is relevant to explain why they made no earlier complaint. There was general consistency between the complainants about the type of discipline administered by the accused and in my view any differences could well be explained given that children no doubt have different perceptions of fairness that are reflected in their recollections of how and why they were disciplined. This observation applies equally to the recollections of TK, whose observation of the manner in which the complainants were disciplined were those of a much younger child.[3]
[3] TK is about five years younger than GT and HT.
There can in my view, be no dispute the accused was responsible for discipline in the house. Clearly the accused made demands of the complainants to undertake work within the house that would more appropriately be carried out by an adult or at least a much older child. When his exacting standards were not met, he was physically abusive and it would not be surprising for the complainants to be in fear of the accused, although there is no appreciable link in my view between the physical abuse and a sexual interest in the complainants.
SL described the accused making the complainants stand in the corner, holding cans over their heads, kneeling on raw grains of rice and belting them with a cane or a strap.[4] The evidence SL gave as to why it was that she had agreed to leave the complainants in the care of the accused can in some way go to explain her lack of intervention in regards the accused’s physical abuse of her sons and is consistent with the perception each complainant expressed as the accused being ‘very controlling, manipulative, nasty and violent’.[5] I am satisfied that the physical abuse administered to the complainants was such that they would have been fearful of speaking out against the accused.
[4] T 327.
[5] AL at T 37.
Cross admissibility
The prosecution relies on the cross-admissibility of the complainants' account to demonstrate an underlying unity in the evidence, strengthening the evidence of each individual complainant. The prosecution asserted that there was such a ‘similarity of account by each complainant, to the point that it is improbable [the complainants] independently concocted the allegations of sexual misconduct against the accused in similar terms’.[6]
[6] R v C, CA [2013] SASCFC 137 at [57].
Section 34P(2)(a) of the Evidence Act provides that evidence relevant to one count can only be used as evidence in respect of another count if the probative value of the evidence substantially outweighs the prejudicial effect it may have on the defendant.
The topics on which the complainants have given evidence which it was said contain ‘a high degree of similarity of detail’[7] were:
·Timing of the abuse against each complainant in that the abuse commenced when each was very young, on occasions when SL was either absent or living apart from the accused. At Plover Court, the abuse of AL became less frequent and continued against GT and HT, suggesting there was a move away from AL as he got older.
·Sexual modus operandi in that each complainant gave evidence of the accused lying on them or having them lie on him naked and rubbing their penises against one another until the accused would ejaculate. The abuse progressed from fondling, fellatio and the rubbing of penises in respect of each complainant and involved engaging or attempting to engage in anal intercourse. The accused kissed the complainants on the mouth.
·Involvement of other children in that each complainant spoke of the abuse occurring in the presence of either friends or relatives.
·Use of a towel or shirt by the accused to wipe away ejaculate.
·Use of lubricant. Both GT and HT referred to saliva being used by the accused as a lubricant, and AL had referred to margarine.
·Filming. Each complainant spoke about the accused filming sexual acts in which the accused participated or in which a complainant was participating with another. AL spoke about the accused attempting to film AL and T VK’s daughter, while GT and HT gave evidence of the camera in the wardrobe and the spy camera hidden in the bathroom. HT said he was made to film the accused and GT having intercourse.
[7] Above [57].
The defence had made no application for severance of the charges, but in the course of submissions, pointed to a number of differences in the versions of events described by the complainants namely:
·The accused did not persist in his attempts to anally penetrate AL, whereas he continued as regards HT and GT.
·The accused only offered a reward for ejaculation in his mouth to HT, offering AL and GT money if they ejaculated.
·The ‘69’ position was not employed in relation to AL.
·Margarine was only used as a lubricant in the case of AL.
·Only HT received massages.
·Only GT described having to cover his face when the accused ejaculated.
·Only GT described the accused asking him to urinate in the bed, over the accused.
I accept that many of these similarities ‘were in reality unremarkable circumstances that are common to sexual offences against children’,[8] however, the description each complainant gave as to the accused filming the abuse is in my view particularly powerful and probative and in the absence of being satisfied beyond reasonable doubt that there was no collusion or concoction between the complainants, I would find the evidence of each complainant was cross admissible. I will return to this issue later in my reasons.
[8] AE v The Queen [2008] NSWCCA 52 at [42].
General Directions
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each of the charges lies wholly on the prosecution. The accused is not obliged to prove a thing. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I could convict the accused of any count, I must be satisfied that the prosecution has proved beyond reasonable doubt each of the elements of that count.
The accused elected not to give evidence, as was his right. I have not drawn any inference adverse to him on account of his exercise of that right. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
I must assess each witness as to their truthfulness and their reliability and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
The accused declined to answer police questions. That too, was his right. I have not drawn any inference adverse to him on account of his exercise of that right. Each of the counts before me is charged as a separate offence and each must be treated separately upon its merit. Should I be satisfied on the accused’s guilt on one count, it does not necessarily follow that he is guilty of the other counts.
The only relevance and permissible use I may make of the uncharged acts that occurred outside South Australia, is as evidence which tends to explain why the complainants did not make a complaint when the charged incidents were said to have occurred or to explain the background against which the charged offences came about.
I must take special care to ensure that the method by which the guilt of the accused on one count may be established is by considering only the evidence admissible in relation to that count.
The prosecution case depends on the evidence of the complainants. Each delayed for some years before making a complaint to police and there has been some further delay before the matter has come to trial. Accordingly, I have directed myself that the delay has resulted in a significant forensic disadvantage to the accused. In particular, given the delay, the accused has been unable to test the account given by the complainants in detail. There is danger in the memories of all witnesses having been distorted and particularly in the case of witnesses who were children at the time the alleged events took place. While the accused does not have to prove anything, a prompt complaint would have allowed the accused to be in a position to remember back to the relevant time and remember what, if anything, happened so as to be able to produce evidence discounting the evidence of the complainants. Had there been a prompt complaint, there would have been an opportunity for the accused to interview potential witnesses, or for the complainants to have had a medical examination, or for other forensic investigations to be undertaken to show whether there was any injury to any of the complainants or DNA evidence. Furthermore, the evidence relating to the following matters may have been obtained:
·absences from school consistent with the allegations made by the complainants that they were kept home by the accused;
·recollections of a confrontation between AL and the accused wherein AL complained of sexual abuse;
·recollections by witnesses of what was said at a meeting concerning AL’s complaint;
·evidence of the accused’s mother and sister, who are now both deceased.
I have taken into account the forensic disadvantages faced by the accused in considering whether or not the prosecution has proved its case beyond reasonable doubt.
The Evidence
AL
AL said he was 33 years old. Growing up he did not know who his biological father was. He was not sure how old he was when he moved to Western Australia with SL and his brothers but said he was very young.[9] SL was in a relationship with the accused at that time.
[9] T23, line 30.
AL described the way the accused would discipline him and recalled an incident when he was four or five years old when SL went to hospital and the accused cared for him. He said he soiled his pants and the accused became very angry, squirted him with a hose, and bent him over and belted him with a strap. The accused punched him in the face and broke his nose.[10] The accused continued to discipline him with a strap and he would belt him ‘on the bum’. He said this continued when they moved to Queensland and then to South Australia, but that the accused would punch and use his fists more than the strap.
[10] T25, line 7.
Uncharged Acts
He shared a bed with the accused while SL was in hospital. During this time the accused began to touch his penis and sexually abuse him.[11] He described his first recollection of sexual abuse occurring when the accused pulled down his pyjamas and sucked his penis. He said there were many incidents of sexual abuse after this occasion, not ending until he was about 14 and a half years old. He said he was abused ‘hundreds and thousands of times’.[12]
[11] T26, line 29.
[12] T27, line 25.
After living in Western Australia, AL, GT, HL, SL, the accused, his sister, niece, and mother, moved to Queensland and resided at the Amberley Caravan Park, where he said, the accused sexually abused him multiple times.[13] The accused would suck his penis and make him suck the accused’s penis in a shower block. He could not say how many times this took place. The accused would also lay down and make him lay on top of him and move backwards and forwards until the accused ejaculated.
[13] T28, line 18.
AL recalled an occasion when the accused took photos of AL and his brothers in their school uniform. The accused sat them down and positioned their penises the way he wanted. AL remembered that the accused woke them up and it was dark outside when he took the photos. He said that on the night that the photos were taken the accused sexually assaulted him.[14]
[14] T35, line 25.
They lived at the Caravan Park for a few months before they moved to a house on Robert Street in Raymonds Hill. He said that the photograph tendered as Exhibit P2 was taken at this location. The accused purchased their school shorts and AL was picked on at school because they were too short.
The accused was the only person who disciplined him and he described the accused as very ‘controlling, manipulative, violent and nasty.’[15]
[15] T37, line 3.
SL had no say in anything. He remembered SL arguing with the accused about using the strap and then SL being hit by the accused.
AL said that his sister ST was born while they were living at Raymonds Hill. Later, SL and ST moved to Western Australia, leaving the accused to care for him and his brothers. During this time, the sexual abuse increased.
When the accused ejaculated he had a t-shirt or rag down the side of the bed and would pull it up and wipe himself.[16]
[16] T42, line 1.
Abuse would occur on a nightly basis while his brothers were asleep and the accused kept him home from school on a number of occasions so he could sexually abuse him.[17]
[17] T41, line 18.
AL said the accused tried multiple times to have anal intercourse with him.[18] The first time was when he was eight years old, when SL was in Western Australia. The accused made a tent out of sheets in the lower part of the Robert Street house and the accused told him he could camp out there for the night. The accused used margarine and tried to use it as lubricant.[19] The accused tried to get AL to put his penis into the accused’s anus and that because his penis kept going soft, this angered the accused.[20]
[18] T42, line 10.
[19] T42, line 19.
[20] T44, line 2.
When AL would lie on top of the accused, the accused would ejaculate every time. AL said the accused would kiss him on the mouth when they were in the shower and when sexually abusing him in the bedroom.[21] No one interrupted the incidents that happened in the shower at Robert Street but there would be times where footsteps would be heard coming through the hallway and the accused took him off his lap.
[21] T45, line 23.
AL described an occasion when SL’s sister visited with her husband and her two children, a boy and girl. SL was away at the time. There was an incident in the cubbyhouse they had in their back garden where AL and his male cousin, who was about four years older than him, were allowed to camp out in the cubbyhouse overnight. The accused sexually abused him and his cousin through the window of the cubby. AL said that the accused pulled down his cousin’s pants and sucked his and his cousin’s penis.[22] He did not speak to his cousin about what happened.
[22] T47, line 1.
AL said that growing up he thought what the accused was doing to him was normal and he did not know any different.[23]
[23] T48, line 20.
When he was in year 6, living at the Robert Street house he had a friend named Corey. He said that Corey stayed overnight on several occasions. AL recalled seeing the accused setting up a video camera in the linen cupboard in the bathroom. AL said he later saw the accused and his niece watching a video showing Corey in a towel in the bathroom.[24]
[24] T49, line 6.
AL described VK as a friend of the accused who he first met when he was six or seven. She had a daughter, T, and two sons who were younger than AL. He described VK and the accused were ‘like a couple in a way’ and that throughout his childhood VK remained close to the accused.[25]
[25] T51, line 38.
He recalled an occasion at the Robert Street house when he was in year 3 or 4 at school where VK’s children stayed over. The accused made a warm drink for all of them and he saw the accused crushing up white pills into a couple of the drinks. When the other children went to sleep the accused tried to get him to have sex with T while he was videotaping.[26] This occurred in the bedroom on the floor beside the accused’s bed. He recalled T was on the floor and the accused told AL to take her pants off and to play with her vagina. The accused told him to lay down and put his ‘willie’ in, and the accused sucked AL’s penis to get it hard. AL had a camera and he was recording. T was asleep during this incident and she ‘kind of stirred once or twice’ during what was going on.[27] AL said he did what he was told but his penis would not go in, and the accused again sucked AL’s penis, but he still could not do what the accused asked.[28]
[26] T52. line 7.
[27] T53, line 26.
[28] T54, line 6.
AL said the accused introduced him to alcohol. On one occasion the accused got him drunk and began to suck on his penis. The accused told him it was time for bed and AL began to feel dizzy and drunk. He said they went to the bedroom and the accused used margarine and put his finger in his anus and then tried to insert his penis.[29] This was the second and only other time that the accused used margarine.
[29] T55, line 18.
Charged Acts
After 12 or 18 months, the accused, SL, ST, VK and her children, and GT and HT, moved to South Australia.[30] They first lived in a block of units behind the Mobil service station in Murray Bridge. Between all of them there were two units and AL shared a room with his two brothers. They stayed in these units for a couple of months. He could not remember the accused sexually abusing him while they were living in this location.[31]
[30] T56, line 33.
[31] T57, line 11.
The accused, AL and his brothers, moved to a house in Plover Court, Murray Bridge. There, he and the accused had their own bedrooms respectively and his brothers shared a room.
Sexual abuse continued while he was at the Plover Court house but had ‘slowed down’ since moving from Queensland, occurring maybe twice a week.[32]
[32] T58, line 32.
When AL was in year 8 at school, his friend CD stayed over. AL and CD were on the couch watching movies. CD fell asleep and the accused started to play with AL’s penis.[33] The accused then played with and sucked CD’s penis while CD was asleep. CD did not wake up and urinated in his sleep.[34] AL then went to bed with the accused. The accused sucked his penis, made AL suck his penis and move backwards and forwards on top of him until the accused ejaculated.[35]
[33] T59, line 9.
[34] T59, line 14.
[35] T60, line 10.
AL said that when they were living in Murray Bridge the accused was still disciplining AL, having violent outbursts of punches, slaps and kicking. These outbursts were occurring on a weekly basis.[36]
[36] T61, line 16.
AL would see his mother on a daily basis and the accused would drive AL and his brothers to SL’s house in the morning because she lived across the road from the Murray Bridge High School.[37] He and his brothers would walk to SL’s house after school and the accused would pick them up from there. SL did not live with them at any time when they lived at the Plover Court house.
[37] T61, line 21.
AL never saw the accused sexually abuse his brothers but there was a time that he noticed the abuse towards him had stopped and one morning he got up and saw his brother (he did not say which) in the accused’s bed.[38]
[38] T62, line 3.
AL said he would attend the Murray Bridge Speedway on a fortnightly basis where he would socialise, watch the speedway and collect cans and bottles for money. The cash he exchanged the cans and bottles for was taken from him by the accused. The accused would drive him to the speedway and pick him up.
AL recalled a time when he was aged 12 or 13 when he was sexually abused after he had been at the speedway. When the accused picked him up, AL was with two girls from school and the accused asked him if he was ‘rooting them’. When they got home the accused took him to the bedroom and told him to pull down his pants, squatted down in front of him, pulled back his foreskin and sniffed his penis.[39] After this there were no further incidents of a sexual nature between himself and the accused.[40]
[39] T63, line 2.
[40] T63, line 14.
AL gave evidence about the housework he was expected to do and the accused’s anger if it was not completed to his satisfaction.[41]
[41] T67, line 7.
AL said he moved out of the Plover Court house when he was 14 and a half, moving in with SL, his uncle and ST.[42] AL recalled an argument with the accused about the dishes and washing not having been done where the accused punched him a few times. The accused drove him to SL’s house with HL and GL as they were to go to school that day. AL said he got out of the car and called the accused a paedophile.[43] AL ran to the gate and the accused ‘kidney’ punched him and he fell. He ran inside to his mother and screamed at her, telling her ‘he’s a paedophile, he’s been tampering with me for years’. AL said that he then ran off and stayed at BG’s house.[44]
[42] T68, line 7.
[43] T69, line 26.
[44] T70, line 17.
SL, his ex-girlfriend TV and her mother JV, came to see him at BG’s house that night. AL said he told them that the accused had been molesting him for years and JV started asking him ‘all these questions’. AL said he shut the conversation down.[45]
[45] T72, line 24.
When asked why it was that he had not told anyone before about the abuse, AL said ‘because I was scared for my life. He had already broken my nose when I was a mere toddler.’[46]
[46] T73, line 11.
SL told him that he did not have to stay with the accused, so he stayed at SL’s house until he was 18.[47] The abuse by the accused was ‘kind of swept under the rug and forgotten’ and they didn’t really talk about it again after that.
[47] T73, line 18.
With respect to whether his brothers ever spoke to him about anything sexual done to them by the accused, AL said:[48]
HT never did. GT, GT - when I lived at Tailem Bend GT and I had an argument about something he'd taken from my house, arguing. I said ‘Why do you treat me like this? Why can't we just get along?’ and stuff, and he goes 'Don't know. It's just the way we've always been, isn't it?' 'It's the way he's always had us', I think he said to me. I go 'What do you mean?' He said 'LT always had us fighting against each other, never wanted us to get along' and GT kind of said about him touching him and I said to him 'He done it to you too?' and he said 'Yes'.
[48] T73, line 32.
AL said that 20 minutes after this conversation with GT, AL had called the accused to come to pick GT up from AL’s house at Tailem Bend.[49]
[49] T74, line 19.
AL said he continued to have a relationship of sorts with the accused until AL was aged 23.[50] The last time he spoke with the accused about the abuse was about five or six years ago over the telephone. He told the accused that he wanted $20,000 from him or he was going to talk to police.[51] The accused had always made him believe the police were against them and that he should not talk to them. He asked the accused why he had abused him and the accused told him it was because ‘my uncle Jimmy done it to me’.[52] AL said he asked for the money because the accused had his motorbikes at his property in Victoria which had been stolen from AL’s house at Tailem Bend.
[50] T74, line 34.
[51] T75, line 6.
[52] T75, line 22.
AL said the accused began to cry and said he was sorry.[53] The accused told him he would see what he could do and that he would speak to the bank. AL said he never received any money and he went to the police eight months later.[54]
[53] T75, line 24.
[54] T76, line 2.
AL said that since his conversation five or six years ago with GT about the accused’s abuse, he ‘kind of’ had a relationship with GT but that it was hard as AL had two children and it was a challenge to try and trust anybody around them.[55] He said that he had not really had a relationship with his brothers.[56] AL said GT had been in custody since GT was about 18, only out for a short amount of time.[57] When GT was out of custody, he was living about 20 minutes away at Maslin Beach.[58]
[55] T76, line 18. GT has been convicted of child sexual abuse offences.
[56] T76, line 20.
[57] T76, line 26.
[58] T76, line 34.
AL said he gave GT the phone number of the police officer who AL had spoken with, telling GT that if what he had told him was true, he needed to report the matter to police as well.[59]
[59] T77, line 11.
He said he had had a little, but not too much, of a relationship with HT over the last six or seven years and that HT was ‘against them’ for a while.[60] HT was living in Cowangie in Victoria with the accused.
[60] T77, line 16.
Growing up, prior to moving out of Plover Court, AL did not know who his biological father was. He thought the accused was his father until he was 18 when SL told him otherwise.[61]
[61] T77, line 29.
In cross examination, AL said he did not remember a shower being in the annexe of the caravan.[62] In the communal showers there was a gap between the floor and the bottom of the door and you would be able to see into the shower block under the door.[63]
[62] T79, line 11.
[63] T79. line 15.
AL denied that SL was present while the photo Exhibit P1 was taken or that she was the one telling him how to sit.[64]
[64] T80, line 13.
AL was asked about his original statement to police dated 2 February 2011, which he said had been compiled over a couple of weeks. He said while he had signed each page, he had not read the statement.[65] AL was referred to having told police that after the photos were taken he went back to bed and had not said he was abused at that time. AL was referred to there being no reference in the statement to the accused ‘positioning’ his penis for the photos.
[65] T82, line 12.
AL did not want to refresh his memory about what was in the statement as he said every time he sees the statement or speaks about what happened, it makes him ‘sick to my stomach’.[66]
[66] T83, line 22.
AL said he spoke to police before GT was released from custody, giving Sergeant Wilkinson GT’s number.[67]
[67] T76, line 36.
At the Raymonds Hill address he was regularly abused by the accused even when SL, ST, and a number of the accused’s family were still living in the house. He said the abuse that took place in the showers would go for half an hour and he could not be sure if it was on a nightly basis.[68] He said no one came into the bathroom to check on him during the showers. He denied that after dinner he would share a bath with his two brothers.
[68] T85, line 10.
AL said he never saw GT sleeping in the accused’s bed.[69]
[69] T87, line 4.
AL agreed that the height of the cubby house meant that the accused would have to have been standing on something ‘pretty tall’ to get in the cubby house window.[70]
[70] T90, line 3.
AL denied the incident with T never occurred.[71] He said he could not remember whether he had told police in his statement that he never saw the video taken of Corey.[72]
[71] T90, line 20.
[72] T92, line 35.
AL said the accused’s room did not smell of urine and he could not remember a night when the bed was wet with urine. He could not recall a night where he saw GT or HT in the accused’s bedroom.
AL said he was sure that the accused was circumcised.[73]
[73] T95, line 17.
In relation to the incident concerning CD, AL said he knew that CD had wet the couch because CD had told him about it and there was a strong smell of urine in the lounge too.[74] He said he couldn’t remember whether he put this incident in his police statement but was sure he had.[75]
[74] T97, line 21.
[75] T97, line 36.
He said he could not remember if he had told police that he saw one of his brothers in bed with the accused at the Plover Court house in his statement.[76]
[76] T99, line 22.
He said he was scared to leave the accused’s house and live with his mother and was scared to step a foot out of line or to do anything wrong in school. He did not know that there was anything wrong with what the accused was doing to him.[77]
[77] T100, line 10.
He said that the accused had a $10 note under the lamp in his bedroom that he said AL could have if AL ejaculated.
In relation to the complaint he alleged he had made at SL’s house, AL denied that he had been to the show with his girlfriend that day and that the accused gave him money and asked him to get some show bags for his brothers.[78] He denied that instead of doing what the accused had asked, he spent the money on his girlfriend and came home without any show bags.[79]
[78] T102, line 27.
[79] T102, line 38.
He denied that a couple days after the argument he went to SL’s house, where the accused was present, and apologised to the accused for what he had called him.[80]
[80] T103, line 38.
AL said that he was aware that TK was sexually assaulted by someone as a child but denied knowing that TK received a Victims of Crime compensation payout,[81] or having seen TK with a new car.
[81] T104, line 11.
AL admitted to previously having a significant methylamphetamine habit and to having sold drugs to support his habit but denied he was having money problems in 2009.[82] He said he rang the accused on two occasions wanting money. He denied that he told the accused that he was in trouble because he owed money to a drug dealer or that he told the accused that if the accused could not get the money that he would go to the police and tell them that he ‘fiddled’ with him and get money that way.[83]
[82] T104, line 25.
[83] T105, lines 24, 28.
AL denied that he called the accused sometime in 2010 saying he needed money and asking for help.[84] He denied saying that he again needed money for a drug debt or that he had said that either the accused gave him money or he would go to the police. He denied that during the call the amount he wanted the accused to pay went from $20,000 to $50,000.[85]
[84] T106, line 10.
[85] T106, line 27.
AL denied that he spoke with GT on more than one occasion about the abuse.[86] He did not remember speaking to HT about wanting to make a report prior to calling the police officer.[87]
[86] T106, line 37.
[87] T110, line 7.
He agreed he had spoken with GT by phone when GT was in prison in Mt Gambier.[88] AL denied encouraging GT to make a report to the police.[89]
[88] T108, line 35.
[89] T109, line 17.
AL admitted that he told HT he would never get to see AL’s child again, but denied that he was trying to convince HT to change his statement. He denied they had a conversation about receiving a payout.[90]
[90] T111, line 16.
AL said that in 2003 or 2004 he was renting GH’s farm and that the police were called to the property because AL was growing cannabis. He was he said, upset because he thought that GH had dobbed him in to the police and he could not stay there anymore. AL denied that he told GH that he was going to police to complain that GH had sexually abused him, but recalled that on one occasion when AL was in his shed with a friend, GH arrived with a carton of alcohol, and GH rubbed AL’s leg.[91]
[91] T112, line 27.
In re-examination, AL was asked to re-fresh his memory from his statement given to police as regards the video of his friend Corey. It became clear that while he had told police he saw the accused ‘watching a video of my mate getting out of the shower,’[92] he said he did not see what was on the tape.[93] He said that he saw the accused’s penis when it was not erect and it appeared to have skin as well that didn’t cover the head completely.[94]
[92] T115, line 28.
[93] T116, line 13.
[94] T117, line 6.
GT
GT said he was 30 years old and was the twin brother of HT and younger brother of AL. He said he had an intellectual disability which meant he could not read or write properly and said he gave the appearance of smiling when nervous or ashamed.[95]
[95] T120, line 36.
He said he would have been 12 months old when he moved to Queensland and has no memory of first moving there. His first memory is when he lived in Ipswich in the Raymonds Hill house with his two brothers, his mother and the accused.
Uncharged Acts
The accused began to sexually assault him in this house after ST was born in 1990 and his mother had moved to Western Australia.
The first time that the accused sexually abused him in the Raymonds Hill house was when he and the accused were in the dining area.[96] The accused had him sit on his lap and started playing with his penis. He was wearing clothes and the accused put his hands down his pants.
[96] T121, line 34 and T122, line 7.
He said the accused was an alcoholic. The accused was responsible for disciplining him and his brothers and that he used to ‘flog’ them. There were times when the accused hit them with electrical cords, canes and horse reins.[97] This treatment continued when they moved to South Australia.
[97] T122, line 21.
The accused sexually abused GT in the bedroom. The accused was naked and he made GT take his clothes off and the accused then started rubbing his penis on his after he laid down. He said the accused was lying on top of him and ejaculated all over him.[98] He said prior to lying on top of him the accused got him to suck his penis. He said after the accused ejaculated he grabbed a towel from behind the door and used it to clean up.[99] GT said he was six when this occurred. He said he asked the accused why he was doing this to him and the accused told him it was how he ‘showed love’.[100] After the abuse he went back to his room to sleep.
[98] T124, line 17.
[99] T125, line 6.
[100] T125, line 13.
GT described an occasion where he was playing with his brothers and the accused took him to his bedroom. He got him to bend over the bed and the accused put his penis in his anus.[101] GT said he was crying at the time and the accused had his hand over his mouth to stop him from screaming. Afterwards he went to the toilet and he was bleeding. He said the accused used spit as a form of lubricant and he spat on his penis, put it on his hand and rubbed GT’s anus before the accused inserted his penis.[102] The next day the accused acted like nothing ever happened. The accused performed anal sex on him on two other occasions.
[101] T125, line 25.
[102] T126, line 6.
The next occasion occurred when he was out playing with his brothers and he came inside.[103] The accused started talking to him and then grabbed his hand and took him up to the bedroom. The accused pulled GT’s pants down and bent him over, trying to put his penis in GT’s anus with no lubricant. He said his penis went in a bit and it was hurting. He heard his brothers come inside and the accused stopped. He said he did not tell anyone about what happened because he was too scared and ashamed to say anything.
[103] T126, line 18.
GT gave evidence of the abuse involving the accused telling him to urinate over the accused.[104] Afterwards the accused would send him back to his room with urine all over the blanket and so no one else thought anything was happening, he would get in trouble the next day for wetting the bed.
[104] T128, line 1.
Charged Acts
When the family moved to Murray Bridge, VK’s family also moved, all living in a flat behind the service station where no abuse occurred. He shared a bedroom with his brothers.
GT recalled moving to Plover Court. He was about seven or eight at the time, moving out when he was about seventeen.[105] At the Plover Court house he shared a room with HT.
[105] T130, line 20.
The accused abused him many times at the Plover Court house, ‘probably three times a week because I had football training and I would play football on Saturdays.’[106]
[106] T130, line 32.
The first time abuse occurred at the Plover Court house, the accused wanted him to stay up late until everyone had gone to bed. The accused came out to the lounge room and sat next to him whispering to him to not go to bed. Once everyone else had gone to bed the accused took him into his bedroom. The accused would get him to suck his penis and there were times where they would be sucking each other’s penis at the same time.[107]
[107] T131, line 17.
The first time that the accused had him perform anal sex on the accused, was when GT was 14 or 15 years old.[108] It occurred on one of the days GT did not go to school, something that happened a few times when GT and his brothers had bruises from beatings. GT said the accused was persuasive – ‘talking you into things you did not want to do’.[109] The accused wanted him to have anal sex and GT said he did not want to. The accused told him that if he did not do it, he would not get his ‘money or his smokes’.[110] GT described the accused laying on his back on the bed, with his legs over GT’s shoulders, while GT was on his knees. GT ejaculated and then the accused masturbated himself.[111]
[108] T131, line 29.
[109] T132, line 23.
[110] T132, line 29.
[111] T133, line 18.
GT said the urination on the blanket that he had described occurring in Queensland, also occurred at Plover Court.[112] The accused would kiss GT on the mouth ‘most of the time when he was having sex’.[113]
[112] T134, line 10.
[113] T134, line 23.
Anal intercourse occurred once at Plover Court when the accused had GT’s clothes off and the accused put his hand over GT’s mouth so he wouldn't scream. This incident occurred probably three or four months before he had GT penetrate him.[114]
[114] T135, line 7.
GT gave evidence about a friend named AM who he went to school with, who slept over at Plover Court on one occasion when GT was 13 or 14 years old.
GT said the accused got GT and AM to go into the accused’s room where the accused was undressed and he got AM and GT to also get undressed, for ‘three way sex’. The accused got AM to lay on the bed while the accused sucked his penis and GT sucked the accused’s penis. GT said he remembered that night very well because that was the first night he started smoking because the accused gave them a smoke after they finished having sex.[115]
[115] T137, line 21.
GT said that when he moved out of Plover Court he went and lived with his mother for 12 months at Tailem Bend. He said he had enough of living with the accused – enough of the abuse, and the ‘assaulting’.[116]
[116] T140, line 3.
GT described times when the accused would punch GT and his brothers in the head. GT said the accused ‘used to get pissed off regularly very easily. It used to scare us’.[117]
[117] T140, line 8.
GT gave evidence concerning a wardrobe which the accused modified, nailing the drawers shut so no-one could open them and cutting a hole in the main door, replacing the hole with a two-way mirror. The accused cut a hole in the bottom of the wardrobe so he could stand in there with a video camera and film whatever was happening in the room. GT said he saw the accused doing the work on the wardrobe because he was home that day. GT gave a detailed description of the wardrobe.[118] GT said the accused told him when he was installing the mirror that he wanted to video GT ‘doing stuff to other people for him to watch and masturbate’.[119] GT said he saw the accused use the wardrobe. The accused got TK and one of his friends to go out on the back veranda. The accused went out to the car, he would move the car down the street, making out that he was going out, then walk back to the house and get into the wardrobe. TK and his friend would go straight into TK’s room and then when they were finished they would come out of the room and go out the back. The accused would come out, take the video camera into his room, and then go to his car, and return making out that he was coming home. GT said that he watched the accused destroy the wardrobe in the backyard not long after GT was arrested.
[118] T140, line 33.
[119] T142, line 25.
GT said he had seen the accused watching the television and that TK’s friend was on the television, naked with TK.[120]
[120] T144, line 5.
GT said he did not know what happened to the tapes, but that when he got arrested, the accused told him he destroyed them.
GT also described the accused showing him a ‘spy camera’, a little bigger than a matchbox when GT was about 16 years old.[121] The accused positioned the camera in the bathroom, facing the shower, having drilled a hole through the bathroom wall to the back veranda. The accused ran cords from the camera through the wall to a VCR and television on the veranda. The camera was under the bathroom sink pointing towards the shower, taped to one of the stainless steel water pipes.
[121] T146, line 30.
GT said he saw the accused use the camera on one occasion when someone whose name he could no longer recall, was in the shower.[122]
[122] T147, line 23.
GT said that the last time the accused sexually abused him was when he was 17 and a half, in the Plover Court house, in the accused’s bedroom.[123] GT said the accused got him to have anal sex with him and described the abuse in detail.
[123] T148, line 17.
GT said that during his childhood the accused was responsible for buying GT’s clothes and that the accused wanted GT and his brothers in tight shorts.
GT said when he was 15 or 16, the accused talked him into doing something sexual with a friend while the accused was video-taping.[124] GT said he and a football friend had sex while the accused stood in the wardrobe videotaping them. The accused told him once they had finished, they had to leave the house and go up to the park so he had enough time to get out of the wardrobe, get into his car and make it look like he had come home.[125] GT said he saw ‘glimpses’ of the video the accused had taken.[126]
[124] T152, line 4.
[125] T152, line 21.
[126] T152, line 32.
There were a few times when the accused got ‘pissed off’ and he witnessed the accused hit AL. In particular, GT described an occasion at his mother’s house in her kitchen where the accused punched AL in the face and AL jumped on his motorbike and took off.[127]
[127] T154, line 22.
AL was the first person who GT told about the accused’s abuse, when AL was living at Tailem Bend.[128] GT said he was aged 17 and a half at the time.
[128] T156, line 24.
He told AL the accused had been sexually abusing him since he was six years old. GT said that AL told him he had been abused as well and became ‘really annoyed’ and drove off in his car.[129]
[129] T157, line 22.
GT said he had not told anyone about the abuse before because he was scared of the accused saying that:
I didn't have anybody else to turn to. I couldn't go to school and say to my teacher LT was abusing me, because I didn't know if when I got home I'd get a flogging or I would get abused again, so I was scared, that's why I didn't say anything.
One occasion on which GT said he spoke to the accused about the abuse was when GT was in Mount Gambier gaol, and the accused came to visit.[130] GT described this occasion as ‘almost the last time’ he spoke with the accused about it. GT said that in 2009 or 2010, he had asked the accused to come and visit because GT needed to talk to him. GT said he gave the accused an ultimatum of either handing himself in or GT was going to the police. The accused told him he had to think about it. GT said he knew the accused would not hand himself in so he went to speak to the social worker at the gaol.[131]
[130] T157, line 32.
[131] T158, line 8.
GT described his reasons for giving the accused the ultimatum as:[132]
…because every day since he's abused me, that's all that goes through my head. I can't sleep, I can't eat because it's all I'm thinking of. When I go to sleep I have nightmares of it. I can't do anything and it just plays over in my head every day. I don't know what to do, so that's why I gave him the ultimatum.
[132] T158, line 21.
When GT was released from custody and living at Maslin Beach, the accused rang him. GT said his mother was there and the phone was on loudspeaker. The accused said that he had ‘apparently’ abused his brothers. GT said it was obvious that the accused was drinking. GT said he did not want to talk to the accused so he handed the phone to his mother. GT said the accused admitted that he had done something wrong; that he had abused the brothers and then tried to make an excuse of having a split personality, saying that he should be locked up if ‘I did do this’.[133]
[133] T159, line 23.
GT said he was in custody from 2006 through to 2010. He had to be assessed for a sexual behaviour program so the gaol sent him to the ‘Adelaide Centre’ and he was there for three months. The accused visited him there.
GT was asked about his contact with his brothers in the time since he was first imprisoned in 2006 until now. GT said:
I haven't spoken to my brothers at all. I've spoken to - I've said 'Hello' but we've never, ever - since I spoke to AL about it in his shed at Tailem Bend, I have never spoken about it to them.[134]
[134] T160, line 15.
GT was first imprisoned on 31 July 2006 until 17 December 2010 and then imprisoned again on 23 June 2011. He was in custody at the time he gave evidence.[135]
[135] T161, line 8.
In cross examination, GT said that when he was taken by the accused from his bed into the accused’s bedroom, while at the Robert Street address, he saw AL asleep in his bed. On return to his bed, GT would see AL and HL in their beds.[136]
[136] T161, line 14.
GT agreed that the brothers would sometimes bathe together, but that they would wash and then dress themselves.
GT was asked about the times he had spoken with police. The first time was on 5 June 2011 and the second, on 9 April 2015 when he spoke with an Officer Crawford who sat down and read out all of the conversations he had with police, giving him the opportunity to correct any discrepancy or to add to the statement.
Contrary to his evidence in chief, GT had told police he was taken from his room by the accused when the first anal penetration occurred.[137]
[137] T165, line 19.
In relation to the first time the accused had penetrated GT, he had told police the accused had come and taken GT from his room. He said it was the second time penetration occurred when he was playing with his brothers.
GT could not recall what had caused a fight between the accused and AT at his mother’s house.[138]
[138] T170, line 16.
GT was asked why it was that he had not moved out of the accused’s house earlier. He said that his mother had a two-bedroom house and it was not until his sister moved out that a room became available.[139] GT agreed he moved back into the accused’s house for probably a month. He said he hated the accused and had wanted nothing to do with him.[140]
[139] T171, line 38.
[140] T172, line 7.
When asked about a variation to his bail conditions on 7 December 2004 so that he could leave the state between 8 December 2004 and 30 January 2005, to reside with the accused in Gatton, Victoria, GT said he went there to work on a house.[141]
[141] T173, line 17.
GT said that HT was never present when the accused abused him. In particular, GT was positive there was no occasion where HT was moving around the bed videoing the accused abusing GT.[142]
[142] T174, line 1.
GT rejected the suggestion that the only time the accused spoke to him by phone at Maslin Beach was when GT and his mother rang and asked the accused for money.[143]
[143] T179, line 18.
GT denied knowing that TK had been sexually abused by another man, or had received Victims of Crime compensation.[144]
[144] T179, line 27.
GT agreed he had told AL about his abuse while at GH’s farm in Tailem Bend but denied speaking to AL about the allegations when GT was in Mount Gambier Prison when he rang his mother and AL was present. This was in conflict with what GT had said to the police in August 2011 when he told them that he did have a conversation with AL when in Mount Gambier gaol. After being read what he said to police, GT recalled having said what had been alleged.[145]
[145] T180, line 37.
GT denied, then could not recall, then agreed, telling police about a conversation between himself and AL when they were trying to work out whether HT had also been abused.[146]
[146] T183, line 2.
Ultimately, GT agreed there had been four conversations with AL about the abuse.[147]
[147] T188, line 20.
In response to the suggestion that he and AL had made up the allegations, GT gave the following evidence:[148]
I was hoping you'd go there because my abuse started when I was six years old, so why would a six year old make up about someone putting their penis into a six year old, okay? Yeah, I'm 30 years old but that's a long time for me to think about this. I can't remember what I watched last night but I can remember what happened to me when I was six years old. So for you to say that me and [AL] got together and made it up, well I don't like that and we, we've never ever sat down and discussed what we were going to do. I have not seen my family for five years, so how can I discuss what's going to happen in this case?
[148] T128, line 9.
GT agreed that in about August 2010, HT owed him about $9,000 and that he was not happy about that or that HT was at that time, supporting the accused.[149]
[149] T192, line 11.
GT denied putting pressure on HT to change his statement, saying:[150] ‘I haven't even seen HT. The only time I saw HT was on Christmas Day in 2010, that's the only time I've spoken to him’.
[150] T192, line 19.
GT was asked about the occasions when he had spoken to forensic psychologists. He said that the first time was when he was 18 and ‘I was told to lie… by the accused’.[151] He said that the accused knew he was going to see the psychologist and did not want to get into trouble. GT said he understood that when speaking to the forensic psychologist that the report was going to be used in legal proceedings.
[151] T192, line 34.
GT agreed that when in 2005 he spoke with a psychologist he had told him that he got along well with his father; that he was a loving father; that he was not violent; and that he had a close relationship with him.[152]
[152] T192, lines 8-13.
GT was asked about his evidence that the first occasion of anal penetration by the accused, was at age six, as opposed to what he told a psychologist in 2010, that he was aged nine. GT said:
AAnd I already know what you’re going to ask.
Q– the child psychologist you were nine years of age.
AAnd I’ve already corrected that with him because he showed me the report before he submitted it. So that was corrected. The one that you’ve got no longer exists.
GT said he had never been offered money by the accused to ejaculate in his mouth.[153] GT said penetration by the accused occurred on three occasions. He was asked whether when speaking with police in June 2011 he told them that it had happened four or five times. He denied this and said that if he had, it would be wrong.[154]
[153] T196, line 6.
[154] T197, line 23.
GT denied telling police on 11 August 2011 that he and the accused had anal sex about four times in South Australia.[155]
[155] T197, line 28.
When asked about the cords from the camera in the bathroom, GT said that he ‘actually saw him drill the hole straight through the wall’.[156] He accepted that when speaking to police in August 2011 he had said he did not know where the accused had the cords and said he did not see the accused with ‘a drill or anything’.
[156] T199, line 28.
GT was then asked about speaking with police on 31 October 2013.
GT agreed that it was on the fourth occasion, on 31 October 2013, when he told police about cords running through the wall.
It was put to GT that between August 2011 and 31 October 2015 he had spoken with HT about the allegations. GT denied this as he was ‘locked up’, adding that: [157]
The only time I saw HT was before he got extradited to WA and I never spoke to him about anything. All I did was try to contact my dad to let him know that he's in gaol, contact my mum to let her know that he's in gaol and that he was getting extradited. I had no time to talk to HT because I was working at the time.
[157] T202, line 1.
As regards GT’s evidence concerning AM, GT said he had rung AM on one occasion because he wanted to catch up with him when he got out of gaol. GT denied having contacted AM via social media trying to get him to support GT going to the police about the accused.[158]
[158] T204, line 34.
It was put to GT that when he spoke with police in August 2011 they asked him on two occasions about the footage taken by the accused in the wardrobe and GT told them that he had never seen any footage.[159]
[159] T206, line 19.
As regards to whether the accused was circumcised, GT gave the following evidence:[160]
[160] T207, line 30; T208, line 31.
A. He wasn't circumcised - sorry, he was circumcised.
QHe was circumcised you say.
AYes.
QSo no foreskin.
ANo.
QAre you sure about that.
AYes.
Q100%.
AYes. He made me play with his dick so many times I still remember.
In re-examination, GT explained that his statements to police were taken over a long period of time, because ‘what I was talking about, it made me sick of what I was explaining and the officer asked me if I wanted to continue or come back and because I've got all this on my plate, all in my head, I've wanted to try and get as much out as I could. So I said 'no, I'll continue but I will tell you when I want to have a break' and continued. I was under stress about it because I had other stuff on my mind as well.’[161]
[161] T210, line 35; T211, line 4.
GT said that his understanding of his bail variation was because the accused had purchased a house with GT and HT’s money. The house needed work and to have a break he went there to work on the house. He was there for three days. He said he went back to live with the accused because he had nowhere else to live.[162]
[162] T211, line 33.
HT
HT said he was dyslexic and when nervous he smirks and get suffers panic attacks.
He said he has no memory of living in Western Australia but could remember living in Queensland. When first living in Queensland, he recalled the accused and his brothers in the house. He could not remember if his mother was also there.
He knew VK, who he described as a friend of the family.
He said that he would see his mother from time to time when they were living at Robert Street, but that the accused was looking after them and was responsible for disciplining him and his brothers. He said there were occasions when the accused would use a strap, electrical cord and sometimes his fists whenever they had done something wrong.[163]
[163] T219, line 34.
Uncharged Acts
The accused sexually abused him when they were living at Raymonds Hill. His first recollection of sexual abuse was when he was about six.[164] He was home with the accused who called out to him. The accused was laying down on his bed. The accused undressed HT and himself and lay HT on the bed and sucked his penis. The accused lay on top of him and was thrusting himself up and down on top of HT’s penis, until the accused ejaculated.[165] The accused used a shirt he had down the side of the bed to wipe HT clean.[166]
[164] T220, line 32.
[165] T221, line 11.
[166] T221, line 24.
This abuse would occur every couple of days and continued when they moved to South Australia, but did not occur when they first moved to the units behind the Mobil service station.[167] The abuse ended when HT was 15 or 16.
[167] T222, line 26.
The abuse was pretty similar on each occasion. HT said he never saw the accused sexually abuse either of HT’s brothers.
Looking at photograph 10 (Exhibit P4), HT said the photograph was taken at Robert Street in the front yard of their house. He said that he and his brothers, would dress themselves but from time to time, the accused would help them. The accused bought their school uniforms.[168]
[168] T222, line 15.
Photograph 9 (Exhibit P4), is a photo of HT taken at Plover Court at about 10 years of age. He remembered the photo being taken but said he was not sure why it was taken, or why he was wearing shorts in that photograph.
Charged Acts
When living at Plover Court in Murray Bridge the accused sexually abused him. HT’s first memory of the sexual abuse in Murray Bridge was of the accused sucking his penis and he sucking the accused’s penis. This started at age 11 and 12.[169]
[169] T225, line 21.
On this occasion, the accused asked HT if he could sleep on his bedroom floor as the accused was scared of ghosts. He asked HT to give him a massage, and it led to HT sucking the accused’s penis and him sucking HT’s penis until the accused ejaculated.[170] HT said he would get up, get dressed and the accused would go clean himself up. HT would spit out whatever was in his mouth, quickly brush his teeth and go have a smoke. HT said he started smoking in year four.[171]
[170] T226, line 16.
[171] T227, line 9.
The sexual abuse continued. The accused would kiss him on the mouth, touch his penis and they would masturbate each other.[172]
[172] T227, line 32.
HT described the abuse as ‘pretty frequent’, occurring a couple of times a week.
The first time HT ejaculated was when he was about 13 years old,[173] describing an occasion when he was about 13 when the accused put glad wrap on his stomach and wanted HT to ejaculate onto it, to give to VK to use to get pregnant.[174]
[173] T228, line 13.
[174] T228, line 20.
The first time the accused penetrated HT’s anus with his penis was in Murray Bridge in the bathroom. The accused took off HT’s clothes, laid a towel on the floor and had HT’s legs open, with his bottom up in the air. The accused then put his penis inside HT.[175] HT described the accused kneeling at the back of HT.
[175] T226, line 26.
HT said anal intercourse was not frequent ‘but it was still once every week or every couple of weeks,’ occurring in the bedroom.[176] Afterwards HT would sometimes sleep on the accused’s bedroom floor or sometimes go back to bed and cry himself to sleep.
[176] T230, line 26.
HT said he did not tell anyone about what the accused was doing because he was scared.[177]
[177] T231, line 7.
HT said he moved into AL’s bedroom, when AL moved out. HT described the wardrobe which AL and GT had given evidence about as:[178]
I'm pretty sure it was a brownish colour, with a single door on one side and a half a door on the right side with, if I can recall correctly, three or four drawers on the right-hand side.
[178] T231, line 28.
He saw the accused putting a mirror on the front of the wardrobe. He never spoke to the accused about why he did that. He saw the accused inside the wardrobe recording HT’s friend, JP masturbating.[179]
[179] T232, line 26.
The accused bought a carton of beer and HT and JP were drinking. The accused made out he was going out but snuck into the wardrobe. HT and JP went into the bedroom and were looking at pornographic magazines. JP was masturbating, and HT ‘helped’ him. HT never saw the video footage.[180]
[180] T233, line 30.
He was aware of an occasion when TK had one of his friends stay over. Again, the accused he said was going out but he went into the wardrobe. HT saw TK and his friend go into the bedroom.[181]
[181] T234, line 25.
He never saw the accused sexually abuse AL but did see him abuse GT ‘once or twice’. He saw the accused ‘sucking GT off and GT sucking the accused off, and the accused having sex with GT’. This HT said, occurred in the bedroom while he was present, videoing at the accused’s request.[182] He said he and GT never spoke about it.
[182] T236, line 17.
When he was about 12 or 13, at Plover Court, the accused bought a ‘spy camera’. HT was not sure if GT was there at the time. The accused installed the camera with HT’s help, in the bathroom underneath the hand basin.[183] The camera was stuck up underneath the hand basin with Blu-Tack and the accused drilled a hole through the wall and put the cables through to the back veranda and television. The accused was ‘open’ only to HT that he was installing this spy camera.[184]
[183] T238, line 13.
[184] T240, line 2.
HT said he moved out of the house at Plover Court when he was eighteen. He lived with his mother for a few weeks when he was 16. He could not recall why it was that he moved back in with the accused.[185]
[185] T244, line 28.
When HT was in his 20’s in Cowangie, he overheard a telephone conversation on loudspeaker between the accused and AL. He heard AL say 'If you don't, I'm going to have to go to the police and tell them you played around with me as a kid'.[186] He heard AL tell the accused that he needed money and he was going to go to the police. The phone call ended with the accused telling AL that he did not have that sort of money and hanging up.[187]
[186] T245, line 15.
[187] T245, line 29.
When the accused was arrested the accused told him to ‘stick with him and he would give me the deposit to buy the house I was living in’. HT told the accused he would stick with him, but that the accused ‘kind of pushed it a bit too far’.[188]
[188] T246, line 2.
When asked to explain what he meant, HT said:[189]
Well, with his drinking and - he was at that present time - well, before that, he was drinking quite a bit, before he got arrested and he was trying to kiss my partner and my ex brother-in-law and me on the lips. They didn't like that.
[189] T246, line 13.
The police came to speak to HT to take a statement. He did not initially tell police the truth because the accused bribed him saying he was going to buy HT’s house for him and ‘set my wife up’.[190] HT said he changed his mind and told police the truth. He had not told anyone before about the abuse because ‘We were kids, we were scared. I don't think any people would admit to something like that when they are growing up, they will think they are a freak’.[191]
[190] T246, line 34.
[191] T247, line 19.
In cross examination, HT said he gave an initial statement to police in June 2013 and then spoke with them again on 12 September, speaking with Constable Snowden.
In the second statement, HT did not tell police that the accused had sucked his penis and accepted that in his description of the first incident of sexual abuse, there was no mention of that occurring.[192] HT agreed his school clothing was all purchased from Op shops.[193]
[192] T251, line 28.
[193] T252, line 38.
HT was sure that only he and the accused were there when the accused was setting the wardrobe up with the mirror. GT was not there.[194] The wardrobe was not bluish coloured.
[194] T253, line 29.
He filmed GT and the accused on the bed out in the open. He was not hidden away at all, not moving around, actually leaning on the accused’s dresser.[195] He agreed that he had told police on 6 February 2015 that when filming them he was standing up and moving around the bed. He said that occurred on one occasion.[196]
[195] T254, line 20.
[196] T254, line 25.
He agreed it was clear from what he saw that the accused was also abusing his brother GT. When he spoke with Constable Snowden in September 2013, he told her that he had never seen the accused sexually abuse anyone else and that the first he knew about AL and GT being abused was the day the accused was arrested.
HT said that was not different to what he was saying in his evidence. What he said in the first statement was a lie because of the accused’s ‘bribing’ and ‘manipulation’.[197]
[197] T257, line 10.
HT said he had lied to police in his first statement when he told police AL had a drug debt. HT agreed that AL initially mentioned the sum of $20,000 which increased to $50,000.[198]
[198] T258, line 11.
HT said he was aware that TK had been sexually abused when he was young and had received a compensation payout. He denied his mother had wanted half of the compensation,[199] contrary to what he told police in his first statement. He agreed that stating his mother wanted the money had nothing to do with protecting the accused.[200]
[199] T258, line 31.
[200] T259, line 17.
When asked why his initial denial about the abuse to police was financially motivated, HT said ‘It is because of the loyalty thing, he was supposed to be my father’.[201]
[201] T260, line 3.
HT said GT had not put pressure on him to change his story. HT spoke with AL shortly before HT spoke with police the first time ‘because AL knew that something had happened to me… I didn't go into details with AL’.
He agreed that AL had told him that because HT was supporting the accused, people were looking at him like a predator. He asked AL to call police, but was not feeling pressure from AL or trying to assist him.[202]
[202] T260, line 37.
On 26 August 2013, AL rang police for HT and the next day HT spoke with Sergeant Wilkinson himself.[203] HT said that before AL made that phone call he did not have a conversation with AL about the abuse.[204]
[203] T264, line 6.
[204] T264, line 15.
HT said Sergeant Wilkinson made it very clear not to discuss any of the allegations as it would hurt his case.[205]
[205] T264, line 29.
The backyard garden was watered by a system that included misting of plants on the veranda. He never saw a television in the area. He did not see any modifications to wardrobes in the house. The accused would not have fit inside.[236]
[236] T400, line 20.
At no time was he naked with any friend who came over to the Plover Court house and there was no system where the accused would pre-arrange for him to bring friends over to film TK having sex with them.
TK described hearing AL on the phone.[237] On the first occasion, he heard the accused address the caller as AL and AL asking if the accused could help him. The volume of the phone was turned up because the accused has hearing issues. AL asked for financial help in the sum of $100,000 to $150,000 because he was in trouble with drug debts.[238] The accused told AL he did not have that kind of money. AL then threatened to ‘send people up to Cowangie to get the money off of dad.’[239] The accused was pleading with and AL’s response was 'Well, how about I just tell people that you fiddled with me'.[240] By this time the accused was very distressed, saying 'AL, you no damn fine I didn't do anything like that. I don't like them kind of people. You know this'.[241] AL replied 'Well, you know the truth and I know the truth, it doesn't mean anyone else does. I need the money, I need to get out of debt'.[242]
[237] T401, line 13.
[238] T402, line 29.
[239] T402, line 36.
[240] T403, line 3.
[241] T403, line 6.
[242] T403, line 9.
TK received a compensation payout of $62,000 in relation to a sexual offence that was committed against him. While the payment was made in 2006, it went to Public Trustee until he turned 18, so he received the money in 2008.[243]
[243] T403, line 23.
TK said HT became aware of the payout as he lived with TK and the accused in Cowangie at the time and he knew of the visits to the lawyers in 2006. In 2008 ST also found out as she also moved up to Cowangie. AL saw TK in Murray Bridge with the vehicle he had purchased and later on that afternoon the accused received a phone call from SL saying that she believed that she was entitled to half the money from his compensation.[244]
[244] T405, line 4.
With respect to GT, at that time he was in Mount Gambier Prison and TK was visiting him every weekend or second weekend. TK thought he may have spoken with GT about having paid for the vehicle from his compensation.[245]
[245] T405, line 20.
TK described the discipline the accused administered at Plover Court. He said for petty stuff or not completing chores, there was no television allowed or standing in the corner. If he ignored the accused, he would not be allowed his PlayStation. This applied to all the children. For ‘major stuff’ it was either a strap or wooden cane across the bottom, or just a clip around the ear or bottom with his hand and no television or gaming. There was one time when they had done something ‘really, really bad’, and the accused ‘used the power cord on their bums.’[246]
[246] T406, line 25.
He had never seen the accused hit AL, although there were arguments and yelling.
TK denied the accused had ever directed him to behave in the way TS had described.
The accused had lent him money to purchase a car, which TK had repaid and every now and then the accused would buy him things like cigarettes, but this had not affected the evidence he gave.
He said if he thought his father was guilty, he would not be giving evidence.[247] He is comfortable with the accused spending time with his children. The accused had never asked TK ‘to stick by his side’ in return for financial help.[248]
[247] T410, line 35.
[248] T411, line 7.
In cross examination TK denied the suggestion that the accused had told him ‘to stick with him.’
TK said he dislikes SL, believing he said that she took advantage of his mother and would laugh at his mother behind her back.[249]
[249] T418, line 22.
When disciplining the boys, TK said the accused never drew blood from any of them –‘they might have had red marks on their bum from the bamboo stick or the electrical cord or the belt but … never drew blood.’
TK said he did not have spinal cancer and has never been diagnosed as such. As a teenager his spine was out of line a bit from carrying heavy objects. He said that he never told GH that he had spinal cancer.
He believed the accused ‘had something in his stomach a few years ago,’ but had never said he had stomach cancer.
TK became aware the accused was his father when TK was about 12.[250] He did not know whether his father was circumcised.
[250] T424, line 33.
CC
CC is currently in a relationship with the accused, having met him while working at the Mobil roadhouse in Pinnaroo.
CC said HT was a frequent visitor to her and the accused. He would come to visit with his partner. She said they all behaved ‘like family.’
When HT’s partner became pregnant CC became aware that HT wanted a more suitable car for his family.
She agreed to swap cars so HT could have a decent car. HT was buying a red Ford but really wanted a BMW, so she agreed to swap cars with him. She gave him the BMW before he got the money together to purchase the Ford. This occurred in 2013. She never received the Ford from HT.
In late July, early August 2013, HT rang her wanting money to pay for a drug deal that had gone wrong and she told him she wanted the car back.[251] He said 'well, I couldn't get it back because these drug dealers had taken it' and until he paid the money he wouldn't get the car back. HT returned the BMW and said she owed him $200 for a tyre. After that she and the accused never saw HT again.[252]
[251] T442, line 11.
[252] T443, line 1.
Statements and documents in relation to the charges faced by the accused were kept in a drawer in the kitchen. On an occasion when HT and his partner stayed overnight, CC found the documents down beside the bed, on the floor in the room in which HT and his partner had stayed. The documents had been gone through with the pages all mixed up. [253]
Analysis
[253] T444, line 4.
Collusion or concoction?
The defence submitted that the complainants have ‘put their heads together’ and fabricated the allegations.
Each complainant denied any suggestion of collusion or that the motive for concocting their stories was financial reward.
I say at the outset that much of the evidence given by each of the complainants had a ring of truth about it. The details recalled while disturbing, and illustrating the utterly dysfunctional lifestyle of those involved, were not so inherently improbable to allow for them to be dismissed out of hand or used as the basis for determining whether the complainants were credible or reliable. There were however some aspects of each of the complainants’ evidence and the internal and external inconsistencies in their evidence that have led me to conclude that it would be unsafe to convict the accused.
In my view, the question of whether the complainants have ‘put their heads together’ is finely balanced. There are a number of topics where it is surprising that in the event they had come together to concoct their stories, their versions of events were not more consistent. For example, it would be expected that issues such as whether one of the complainants was present filming the accused sexually assault another complainant would, if there had been collusion, be common ground between the two complainants involved.
The prosecution placed particular reliance on the evidence of TS regarding the accused's behaviour in his presence towards the complainants, and who the prosecution described as an entirely independent witness. The prosecution submitted that TS’s evidence supported the complainants’ allegations that the accused acted in a violent way towards the complainants and in a sexual way when others were present. It is evidence, the prosecution submitted, that strongly goes against collusion, particularly given the event spoken about by TS concerning TK, was not referred to by the complainants in their evidence. As was conceded by the prosecution, TS made no secret of the fact he did not want to be in the court. That may of course be for one of any number of reasons, but his demeanour raised concerns as to whether he was a credible and reliable witness. In any event, I have concluded his evidence cannot assist me in the way in which the prosecution suggests and I note none of the complainants were asked in examination, whether they had seen the accused behave towards TK in the manner TS described. Furthermore, there is no basis, to reject the evidence TK gave that the events TS described never occurred.
All three complainants had been warned by Sergeant Wilkinson not to talk about their evidence and it is against the background of that warning that they gave their evidence.[254]
[254] AL at T110; GT at T190; HT at T264.
In the end, I found the evidence each complainant gave on the question of discussion between them about the allegations was disingenuous. I also found it difficult to accept that the first discussion between AL and GT about the accused’s abuse took place in the superficial way described by AL, who denied there had been any detailed discussion. GT’s evidence on the topic of the times when he had discussed the abuse with AL was particularly concerning in that GT said initially there was only one conversation with AL, that being on GH’s farm. In cross examination GT accepted there had been two times that he and AL had spoken, the second when he was in prison. He then agreed to a third occasion in relation to whether, at least on the prosecution case, HT had also been abused, and a fourth when AL visited him in prison.[255]
[255] T181-187.
I did not get the impression AL or GT simply could not remember the occasions when they spoke. Each was strident in their denial they had spoken on more than one occasion. No doubt they were concerned, given the warning by Sergeant Wilkinson, that any concession of having spoken to each other would be detrimental to the case, but in doing so, each has undermined his credibility to some extent.
The evidence regarding the television used by the accused to watch the film of other children, was at the very least suggestive of discussion between the complainants. In this regard, I note HT had not made any statement about the cords in his statement in September 2013, but then mentioned it on 3 October 2013. In August and September 2011, GT said he did not know where the accused had placed the cords and had not seen him with a drill. GT accepted that the first time he told police about this issue was on 31 October 2013. The time frame of HT’s disclosure on this issue raises concern.
What was of particular concern, was the evidence each complainant and SL gave in regards to the issue of whether they were aware of the compensation paid to TK. Each gave answers that were contrived, defensive, and in my view implausible. I note that SL was not prepared to engage in any meaningful discussion about what it was, if anything, she knew about TK’s compensation. She was evasive and in my view, deliberately unhelpful on the topic.[256] I find SL was aware of the compensation TK received and that it is highly likely that she communicated her knowledge to the complainants.
[256] T349-350.
Having made these observations and assessments, I find I cannot exclude, at least as a reasonable possibility, there was some unity of purpose in seeking a financial gain. In arriving at that conclusion, I recognise that it is easy to allege that because an alleged victim has made a demand for compensation, whether by way of a threat, as in AL’s case, or whether through more formal channels, as in the case of HT, the allegations are thereby fabricated for financial gain. There may be any number of possible explanations, consistent with a victim telling the truth, for why such threats or formal claims are made. A demand or claim for financial compensation may be a particular victim’s view of justice or a victim may have little faith in police or the justice system. In this case however, it would be unsafe to consider the evidence of each complainant using any underlying unity or similar fact cross admissibility type reasoning.
As to whether each complainant's story stands alone in circumstances where I have found they have spoken about the allegations, and collectively decided to seek compensation, I have carefully assessed each complainant’s evidence. Clearly, there are a number of discrepancies in the versions of events described to police at various times. Given the personal attributes of each complainant and the time since these events are alleged to have occurred little could perhaps be said to flow from these discrepancies. The timing when certain recollections were first described to police however, does raise questions about each complainant’s credibility.
While a number of internal and external inconsistencies in the evidence of the complainants do not affect their credit and may well be explicable, for example, the apparent failure by AL, HT or TK to notice a wet bed or wet blankets, or AL’s evidence that his brothers were always asleep in their own beds,[257] there are some that give rise to concern, even recognising that not all memories will necessarily be able to be recalled at one telling or in a logical sequence. Many of the inconsistencies are the subject of agreed facts.
[257] T38-39.
Agreed Facts
The following facts were agreed between the parties in relation to the evidence of AL:
AL stated that he was offended against after the photographs (Exhibit P1) were taken.[258] At no point in the statement dated 2 February 2011, did AL say he was offended against after the photographs were taken. In that statement, AL told Police that he went to bed after the photographs were taken.[259]
·
·AL gave evidence the accused arranged his penis before the photographs (exhibit P1) were taken.[260] At no point in the statement of AL dated 2 February 2011 did he state that the accused had rearranged his penis for the photographs to be taken.[261]
·AL stated he saw Corey in a towel on the video that was playing on the television.[262] In his statement on 2 February 2011 he told Police that he never saw any of the footage.
·AL stated that CD urinated on the lounge in his sleep.[263] At no point in the statement of AL dated 2 February 2011 did he state that CD had wet the lounge.[264]
·AL stated that he had seen one of his brothers in the accused’s bed.[265] At no point in the statement of AL dated 2 February 2011 did he state that he had seen one of his brothers in the accused’s bed.[266]
[258] T31.
[259] T83.
[260] T31.
[261] T83.
[262] T49.
[263] T59.
[264] T97.
[265] T62.
[266] T99.
The following facts were agreed between the parties in relation to the evidence of GT:
·GT stated that before the first time he was penetrated by the accused, he was playing with his brothers.[267] In June 2011 when GT spoke to Officer Gregory about the first time he was penetrated by the accused he stated that he got him from his room and woken him up.[268]
·On 7 December 2004, GT varied a bail agreement ‘to reside with his father over the holiday period in Victoria’ and such variation was made so that his bail was varied for the period between 8 December 2004 and 30 January 2005.[269]
·After a request for disclosure, the DPP provided the psychological reports that had been tendered on all sentencing hearings for GT to those acting for GT. The report dated 2010 was a report that had been tendered to the Court. There was no corrections made in that report.
·GT told the Court that the accused had penetrated him three times.[270] In June 2011 he told the Police that it had happened four or five times. In August 2010 he told the police it had happened about four times.
·GT told the Court that the ‘spy camera’ was taped to one of the water pipes.[271] In August 2011 he told the Police that the ‘spy camera’ was ‘under the sink part, but it’s just a sink on the wall, and basically just sat on sort of a porcelain bar. I don’t remember much at the house, ‘cause I haven’t been there for so long’.
·GT told the Court that he had seen the accused drill the hole straight through the wall.[272] In August 2011, he told the Police that he didn’t know where he had the cords. In August 2011 he told the Police that he had not seen the accused with a drill or anything.
·GT told the Court that he penetrated his father on three occasions.[273] In August 2011 he told the Police that it only happened on one occasion.
[267] T125.
[268] T165.
[269] T173.
[270] T197.
[271] T147.
[272] T199.
[273] T202.
The following fact was agreed between the parties in relation to the evidence of HL:
·No mention was made by HT in his statements dated 7 June 2013, 13 September 2013 or 3 October 2013 of the allegation that he filmed the accused sucking GT’s penis. The first time that allegation appeared in a statement was on 4 February 2015.[274]
[274] T297.
I accept that each complainant has learning difficulties, had difficulties speaking with police and were recounting events that occurred so long ago. These incidents are alleged to have commenced when they were very young, on many occasions, and almost routinely throughout their childhoods. In such circumstances, it would not be surprising memory of certain events was not particularly well defined. The abuse could in effect, be said to be nothing out of the ordinary to them and as such, may not have created memories that could easily be singled out or described in particular detail.
This was to be contrasted with the times when the complainants could give detailed descriptions of where and how certain events took place, which were difficult to accept as genuine memories given the events were such a long time ago, when the complainants were of such a young age.
While on the version of events described by each complainant there were clearly too many instances of abuse to recall individually, the internal inconsistencies within GT’s and HT’s evidence in particular, as regards anal penetration, and their account of such abuse in earlier statements to police, cannot so easily be dismissed as explicable because of the age of the complaint or number of occasions abuse occurred.
What I found particularly troubling in regards to the evidence of GT was that concerning the psychiatric reports that had been used in sentencing submissions made on his behalf. At the time he was interviewed for the reports, GT was not living in circumstances where he was under the accused’s immediate control. GT had told Mr Balfour that he had a close relationship with his father. If there were ever a time where it would be thought useful and important to have disclosed his sexual abuse, it would have been in the course of a report that was presumably going to be used in support of sentencing submissions for crimes relating to the sexual abuse of a child.
Finally, I note the ‘falling out’ between the accused and HT in relation to the swapping of the vehicles with CC. While it did not involve a particularly large sum of money, it does appear to have been of enough significance for the dispute to result in HT ceasing to have contact with the accused and did fall within the time between HT’s first statement to police denying there was any abuse, and the second where the abuse is disclosed.
The explanation given by HT as to why it was that he had changed his mind about making allegations against the accused, was difficult to accept. HT said he had lied initially because of the accused’s ‘bribing and manipulation’. His description of why he decided to change his story as having been based on the accused having ‘kind of pushed it a bit too far’ with his drinking and ‘trying to kiss my partner and my ex brother-in-law and me on the lips. They didn't like that’ did not satisfactorily explain his change of mind. I also note the $9,000, at least on HT’s evidence, that was said to be owed to him by GT, which may have been a relevant factor in HT’s decision to support his brother’s version of events.
In light of AM’s evidence that he was ‘99%’ sure that nothing had happened to him while he was staying overnight at the accused’s house.[275] I cannot be satisfied that the acts alleged by GT regarding AM occurred. AM gave his evidence in a straightforward and credible way. It is of concern that at least according to AM, GT had been pestering him about going to the police to support GT, to the extent that AM felt it appropriate to delete GT from Facebook.
[275] T306.
Aspects of the evidence AL gave were compelling and I am satisfied that following an argument at SL’s house, AL made a complaint that LT sexually abused him. AL’s explanation as to why he had not previously complained about the abuse as being scared because the accused had broken his nose when he was a toddler, was somewhat curious, given the litany of abuse that had been described by AL. In any event, I accept BG’s recollection of the abuse being a topic of discussion at his home, consistent with the evidence of AL and SL. The evidence given by SL however, regarding AL’s retraction of the allegation is inconsistent with AL’s evidence. While there were many aspects of SL’s evidence that gave rise to concern about her credibility, there was no reason for her to lie on this topic, other than perhaps to deflect from possible criticism about her parenting efforts. The manner in which she gave evidence on this topic did not however, impress me as defensive or as having been given with any real insight into that issue. In the circumstances, I am left with some doubt about the complaint and given my other concerns regarding AL’s evidence, cannot be properly satisfied of his version of events as credible and reliable.
Finally, all three complainants were confident when asked in cross examination, that the accused was circumcised, given they had seen the accused’s penis so many times and in close contact.[276] There was no evidence from any of the complainants that gave context to their understanding of what a circumcised penis looked like. True it is that neither SL nor TK knew the answer, and as a small child, it may not necessarily have been understood. Each complainant however alleged that the sexual abuse continued until they were at least in their early teens, and given the frequency of the abuse and having observed the accused’s penis, their evidence is difficult to reconcile with the agreed fact that the accused is not circumcised.
[276] AL at T59; GT at T207; HT at T295.
Conclusion
The complainants gave a detailed history of years of abuse and as I have said, aspects of each of their evidence had a ring of truth about it. While I am suspicious that much of what was described to me was accurate, that is not enough. As I cannot be satisfied to the requisite standard that the accused offended as alleged, I must find the accused not guilty of all charges.
0
4
1