R v TWK - [2021] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TWK
Criminal Trial by Judge Alone
[2021] SADC 39
Reasons for the Verdict of her Honour Judge Schammer
31 March 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - OATH - COMPETENCE TO TAKE
CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - PARTICULAR PERSONS AND MATTERS - CHILDREN
The accused is charged with two counts of unlawful intercourse with a person under 14 years, for offending which is alleged to have occurred on 25 August 2018.
The complainant was aged 13 years and 9 months at the date of the alleged offending. The complainant suffers from a moderate intellectual disability, which affects his ability to give a coherent account and to respond rationally to questions.
A record of interview conducted between the complainant and a social worker on 8 October 2018 was tendered at trial as the complainant’s evidence-in-chief. The complainant gave unsworn evidence by way of cross-examination at a pre-trial special hearing, pursuant to s 9 and s 12AB of the Evidence Act 1929.
Whether the court can be satisfied as to the reliability and credibility of the complainant’s evidence, such that it can be satisfied beyond reasonable doubt as to the accused’s guilt.
Held: Not guilty verdict on each count.
Juries Act 1927 (SA) s 7; Child Safety (Prohibited Persons) Act 2016 (SA) s 38; Evidence Act 1929 (SA) ss 12AB and 13BA, referred to.

R v TWK
[2021] SADC 39

[Criminal]
Introduction

The accused, TWK, is charged on an Information dated 8 May 2020 with two counts of unlawful sexual intercourse with a person under the age of 14. The complainant in each instance is STM, the grandson of TWK’s former partner, CJ.
The alleged offending is said to have occurred at Salisbury on 25 August 2018, when STM was aged 13.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927.
The Charges
First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935.
Particulars of Offence
TWK on the 25^th day of August 2018 at Salisbury, had sexual intercourse with STM, a person under the age of 14 years, by inserting his penis into his anus.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years (Ibid).
Particulars of Offence
TWK on the 25^th day of August 2018 at Salisbury, had sexual intercourse with STM, a person under the age of 14 years, by performing an act of fellatio upon him.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Elements of the Charged Offences
As to each count, the prosecution must prove the following elements beyond reasonable doubt:
1.The accused had sexual intercourse with STM; and
2.STM was under the age of 14 years at the time the act of sexual intercourse took place.
Sexual intercourse includes any activity consisting of or involving the penetration of a person’s anus by any part of the body of another person or by any object and it includes fellatio.
It was an agreed fact that STM’s date of birth is 15 October 2004, such that I am satisfied that he was under the age of 14 years at the time of the alleged offending.[1] As such, the issue in dispute with respect to each count is whether the alleged act of sexual intercourse occurred.
Legal Directions
[1] Exhibit P8.
General
TWK is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. As to each count, the prosecution must prove the elements of the offence beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty.
It is not for TWK to prove that he did not commit the offences as charged.
TWK elected not to give evidence, as was his right. I have not drawn any inference adverse to him because 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 with respect to a count, the prosecution will have fallen short of proving the count beyond reasonable doubt and my verdict on that count should be one of not guilty.
There are two charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
I must assess each witness as to their truthfulness and 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.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and must not be influenced by public opinion in relation to this matter.
Expert Evidence
Dr Robyn Young and Dr Jane Edwards both gave expert evidence and the report of Dr Young dated 21 June 2020 was tendered as Exhibit P6. The ordinary rule is that a witness may speak only to the facts and not express opinions. An exception to that rule is that persons who are qualified in a particular area may express an opinion. That opinion must be relevant to their particular areas of expertise and that opinion must be based wholly or substantially on their knowledge, training or experience.
There was no dispute as to the expertise of either expert and their opinions were not challenged. I have no hesitation in accepting the evidence of both Dr Young and Dr Edwards.
Initial Complaint
The complainant’s mother, RJ, gave evidence that STM told her about the alleged offending on Monday 27 August 2018.
I heard this evidence to inform me as to how the allegations first came to light. It gives me a more complete picture of STM’s account. The evidence was also led as evidence of the degree of consistency of conduct of STM.
The evidence was not admitted as evidence of the truth of the allegations and cannot be used as some form of independent evidence to prove what happened, as only STM’s evidence is able to prove that.
There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is a matter for me as the trier of fact to determine the significance, if any, of this evidence in the circumstances of this case.
Discreditable Conduct
The prosecution led evidence of discreditable conduct.
STM gave evidence that TWK had shown him pornographic movies and pornographic magazines.
Mr Davis gave evidence that he observed TWK give STM a pornographic magazine on the evening of the alleged offending.
The prosecution does not rely on the discreditable conduct evidence for any propensity purpose, rather the evidence was led to put the alleged offending in context and to demonstrate the nature of the relationship between TWK and STM.
Further, the prosecution submitted that when considered in conjunction with the other evidence on this topic, this evidence provided an explanation as to why the accused may have been emboldened to offend, when his provision of pornographic material to STM was allowed to go unchecked by other family members and acquaintances. It was also submitted that the evidence assisted to demonstrate TWK’s state of mind in the hours immediately prior to the alleged offending.
Counsel for TWK submitted that STM’s exposure to pornographic material by TWK (and others) may have precipitated him making the allegations against TWK, in circumstances where the acts described by STM simply did not occur. It was submitted that the court could not exclude, as a reasonable possibility, that in making the allegations against TWK, STM was not describing acts committed by TWK against him, rather he was merely describing what he had seen (and/or heard) in pornographic movies or magazines.
It is permissible for the discreditable conduct evidence to be used in the ways as submitted by the prosecution and defence. I am satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on TWK. However, I must not reason that because the accused has engaged in discreditable conduct that he is the sort of person who would be likely to offend and is therefore guilty of the offences as charged. I must not reason that the accused is a person of bad character and therefore the type of person who would offend in the manner as charged.
Further, as to the two separate charged acts, if I am satisfied beyond reasonable doubt that TWK offended in the manner alleged in count 1, I can use that evidence in my consideration of the charge in count 2. However, if I am so satisfied, I must not reason that TWK is a person of bad character and is therefore more likely to have offended as charged with respect to count 2, or the type of person who would offend in the manner as charged in count 2. Further, I must not reason that because of the multiplicity of the charged acts that the accused must be guilty of something and convict the accused of one or both of the charged offences.
Evidence of STM
I accept the evidence of Dr Young that STM suffers from a moderate intellectual disability.
On 23 October 2020, a judge conducted a pre-trial special hearing during which he asked certain questions of STM as to his understanding of the court process and the importance of telling the truth. After doing so, the judge determined that STM did not have an adequate understanding of the moral and legal consequences that can flow if a person gives untrue evidence in court.
As such, the judge determined it would not be appropriate for STM to take an oath or make an affirmation. Having reached that conclusion, the judge then determined that STM understood the difference between truth and a lie, he told STM that it was important to tell the truth and STM told the judge that he would tell the truth. The judge then gave permission for STM to give unsworn evidence.
On 13 November 2020, a judge made an order pursuant to s 13BA of the Act that the evidence of STM be admitted in the form of an audio-visual record, namely a record of interview conducted on 8 October 2018 at the Women’s & Children’s Hospital between Ms Sally Handby, a Social Worker from Child Protection Services and STM.[2] From the admission of evidence in that form, I must not draw any inference adverse to TWK and I must not allow the admission of evidence in that form to influence the weight to be given to that evidence.
[2] Exhibit P1.
STM was cross-examined at the pre-trial special hearing. STM gave his evidence via CCTV from another room, with the benefit of a court companion. The evidence was recorded. On 22 February 2021, I ordered that the audio-visual record of that cross-examination, made pursuant to s 12AB of the Evidence Act 1929 (the Act), be admitted as evidence in the trial pursuant to s 13BA of the Act.
I must treat this evidence in the same way as any other kind of evidence and not allow the way in which it was presented to influence the weight given to that evidence. I must not draw any inference adverse to the accused arising from the fact the evidence was given in that way.
I must take into account that in giving unsworn evidence, STM does not have the same understanding of the obligation to be truthful in a court proceeding as other witnesses and does not understand the importance of a criminal trial or understand the consequences of false evidence. For these reasons, STM’s evidence may not be as reliable as evidence given on oath or affirmation. I must therefore exercise caution when deciding what weight, if any, I give to that evidence.
Counsel for the accused requested that I give myself a warning pursuant to s 12A of the Act, that it was unsafe to convict the accused based on STM’s evidence. Although in this case there are cogent reasons that such a warning may be warranted, namely the nature and extent of the intellectual disabilities suffered by STM, I am satisfied that there is evidence corroborating STM’s evidence, and decline to give myself such a warning.
However, I remind myself that in order to be satisfied of TWK’s guilt with respect to either count, I must be satisfied beyond reasonable doubt as to both the reliability and credibility of STK’s evidence. As that evidence was unsworn, I must approach that task with caution, and carefully scrutinise that evidence.
Witnesses and Exhibits
The prosecution called evidence from the following witnesses:
1.The complainant, STM;
2.The complainant’s mother, RJ;
3.Mrs Smith, TWK’s mother;
4.Mr Davis, Mrs Smith’s partner;
5.Dr Robyn Young, Clinical Psychologist; and
6.Dr Jane Edwards, Specialist Forensic Paediatrician.
In addition, numerous exhibits were tendered, including a disc containing the record of interview conducted between Ms Handby and STM on 8 October 2018 (Exhibit P1) and STM’s evidence given in cross-examination on 23 October 2020 (Exhibit P3).
Several photographs of Mrs Smith’s home taken on 17 May 2019 by Brevet Sergeant Kirsty Clarke were tendered as Exhibit P5.
The only evidence tendered by the accused was a disc containing a record of interview conducted between Ms Handby and STM on 15 April 2019 (Exhibit D1). The disc was not introduced as evidence of the truth of its contents, nor to prove any prior inconsistent statement. The disc was admitted to establish that during that record of interview, STM made various allegations of sexual misconduct against him by others in similar terms to that as expressed by him pertaining to the accused. The exhibit also further demonstrates STM’s capacity to communicate, his manner of speech and the language used by him.
Background
At the time of the alleged offending, STM was aged 13 and lived with his maternal grandmother, CJ, at Athelstone, with his two older half-brothers, TS and JS and his younger sister, RM.
Both TS and JS suffer from autism, with JS being profoundly disabled and unable to talk. RM also has special needs.
STM’s mother, RJ, lived next door to CJ, and provided assistance to CJ in the care of the four children.
At the time of the alleged offending, TWK had been in a relationship with CJ for several years. Since about late July 2018, TWK had been staying several nights a week with his mother, Mrs Smith, at her home in Salisbury.[3] When he did so, he would sleep either in a chair in the ‘entertainment area’, or in one of two beds in the shed/garage which was converted into a granny flat/pool room, located at the rear of the property.[4]
[3] T 33.8-11; T 42.11-21.
[4] T 43.19-21.
On Saturday 25 August 2018, the accused, the complainant, CJ (Grandma), JS and RM attended at Mrs Smith’s home for dinner. Mrs Smith’s partner, Mr Davis, was also at the dinner, although he arrived slightly later than the others.
Rather than going home with CJ and his siblings after dinner, the complainant stayed the night at Mrs Smith’s home. The accused also stayed at Mrs Smith’s home that night. The prosecution case is that the accused committed the offending that night, in the shed, at Mrs Smith’s home.
The Evidence
Complainant’s Evidence
As stated, the complainant’s evidence-in-chief comprised a visual recording of a record of interview conducted with him on 8 October 2018 by Ms Sally Handby, a social worker engaged by Child Protection Services. This was the second occasion Ms Handby had interviewed the complainant. She first interviewed him on 4 October 2018, at which time he provided certain details to her with respect to the alleged offending.
At the commencement of the interview on 8 October 2018, after having satisfied herself that STM knew the difference between a truth and a lie, and he promised to tell her only the truth, Ms Handby commenced specific questioning of STM as to his recollection of the circumstances of the offending. She introduced that questioning by asking the complainant; ‘Tell me everything that happened when [TWK] put his dick up your arse.’[5]
[5] Exhibit P1.
Thereafter the following exchange occurred:
STM: It happened on Saturday night when I was at [Mrs Smith’s].
HANDBY:Yeah?
Yep.
I wasn’t there so I don’t know. Tell me everything that happened when he put his dick up your arse.
STM:Um I was sleeping in bed.
HANDBY:Mhmm.
STMand he, I, and he, and he was undoing my shorts.
HANDBY:Mhmm.
And then what happened?
STM:Umm He gave me lasagne.
HANDBY:He gave you lasagne.
STM:Mhmm.
HANDBY:Yep
What else happened?
STM:Umm Um [Mrs Smith, Mrs Smith, Mrs Smith] said ‘he’s not allowed to come back anymore’.
HANDBY:Right.
Why did [Mrs Smith] say that?
STM:She did.
HANDBY:Yeah – why?
STM:Cos he’s been putting his dick up my arse.
HANDBY:Alright.
Did that happen one time or more than one time?
STM:More than one time.
HANDBY:Tell me about the last time [TWK] put his dick up your arse.
STM:When I was at [Mrs Smith’s] on Saturday night well when I was in bed and he started doing my shorts.
HANDBY:Mhmm.
STM:He undood my laces and he pulled them right off.
HANDBY:Un?
What, what did he pull right up, off?
STM:My, my like, my shorts.
HANDBY:Right.
And what happened after he pulled your shorts right off?
STM:Um Um He started doing it; he’s sucking my dick as well.
HANDBY:Right.
When you said ‘he started doing it’.
STM:Mhmm.
HANDBY:What’s ‘it’?
STM:‘It’ means when he did it.
HANDBY:So when he did ‘it’ what exactly did he do?
STM:Um. That’s it, that’s it was.
When asked to explain everything that TWK had done, the complainant said that the offending happened in the bed, in the bedroom in the shed, near where the chooks are.
Ms Handby attempted to explore with the complainant his previous response that this had happened ‘more than one time’ by asking him to tell her about another time, and specifically about the ‘first time’. STM replied ‘Um that’s it.’
Ms Handby asked STM if, on the Saturday night at [Mrs Smith’s], TWK put his dick in his arse more than one time. STM responded, ‘more than one time’. When asked how many times, he said ‘I don’t know’. Ms Handby then asked STM if TWK had sucked his dick one time or more than one time, to which he responded, ‘more than one time.’ She asked if this had happened at other places as well as [Mrs Smith’s] place and he said no. STM then said that he had said ‘don’t do it’ and that TWK had said nothing in reply.
Ms Handby explored with STM the extent to which he had been exposed to pornography. STM said that the last time he was at Grandma’s house, TWK had shown him a movie which showed ‘a lady sucking a man’s dick’. He also described TWK showing him magazines of ‘ladies fannies and all that’. Ms Handby later reminded him that he had told her he had been shown the pornographic movie, and asked him whether ‘anything like that had happened with anyone else’, to which he answered ‘nah’.
Ms Handby asked STM if TWK had shown him a pornographic movie one time or more than one time, to which he answered, ‘More than one time’, and later said ‘probably two times’. When asked by Ms Handby where Grandma was when TWK had shown him these movies, STM explained that Grandma had gone out, that he would stay home with TWK by himself, and when asked ‘how much’ he said, ‘much often’. When asked where Grandma was, he said, ‘She went out. I think she went down to the servo and got milk.’ He did not know where his older brothers were then. As to his younger sister, he said that she went out, but then said ‘She was, I meant she stayed at home. I think she was in my room or something playing my game’.

Ms Handby asked STM; ‘Has anything like what [TWK] did to you ever happened to you before’. He answered yes. As to whether it had ever happened with anyone else, STM said ‘Mhmm mn, mn. Mn’. Having carefully observed this response to that question, I am satisfied STM intended to convey the answer ‘no’. Whether he understood if he was being asked during this line of questioning about the alleged offending or about being shown pornographic movies, being the topic immediately preceding this line of questioning, is uncertain. STM was not asked to repeat back, using different words, what he had intended to convey by that response.
Ms Handby then asked STM ‘How many times has it happened with [TWK]’, to which he responded, ‘Um four’. Again, it is uncertain whether this response was understood by STM to refer to the number of occasions he had engaged in anal intercourse with TWK or alternatively, the number of times he had viewed pornography with TWK (or something else).
STM did not give any further details as to the alleged offending, or details of any other occasions when it may have been alleged that TWK had engaged in sexual offending against him.
STM’s cross-examination covered only several discrete topics.
STM was asked if he could remember what clothes he was wearing on the Saturday he had gone around to Mrs Smith’s house. He said he was wearing ‘a T-shirt and jocks and pants’[6] and later agreed with a proposition that he had been wearing track pants. He said he was only wearing a T-shirt, and not a jumper.[7]
[6] Exhibit P3 at T 30.23.
[7] Exhibit P3 at T 30.25-29.
STM was asked several specific questions about pornography.
He was asked if his father, TM, had shown him ‘some pictures of big girls with their vaginas and boobs’.[8] STM said no, he had not. He was asked if he remembered telling Ms Handby in the record of interview conducted on 15 April 2019 that TM had shown him such pictures, and he said he remembered telling her that. He then said that TM had shown him such pictures. He also recalled TM showing him a film which showed people having sex. He saw the disc and the pictures playing on that disc. He was unable to say precisely what that film showed, other than ‘sex stuff’.[9]
[8] Exhibit P3 at T 37.21-23.
[9] Exhibit P3 at T 37.21-39.12.
STM was asked if his mother’s partner, S, had ever shown him ‘sexy pictures’ or any ‘sexy films showing sex;’ and he replied no to each question. He denied telling his school principal that S had shown him some sexy pictures.[10]
[10] Exhibit P3 at T 39.18-40.7; noting there was no evidence elicited to the contrary.
STM said that a long time ago, Grandma had shown him a picture of his father’s ‘willy’ and that the picture was in a photo album.[11]
[11] Exhibit P3 at T 40.10-29.
STM gave evidence that when he was living with Grandma and TWK, he had a Playstation4, and that he would play games on it, such as ‘GTA 5’, ‘Watch Dogs 2’ and ‘Watch Dogs’. He said that there was ‘sex stuff’ in GTA 5, involving the characters in that game, Joseph and Poppy, but not in the other games. He denied using the Playstation4 to look things up on the internet. He said Grandma had a phone, but he did not use it, and that neither he, nor his siblings, had a phone. He said there was no computer, iPad or tablet in the house.[12]
[12] Exhibit P3 at T 40.30-43.7.
STM was asked if he had heard the characters in the Playstation4 games say things like ‘put your dick in my arse’ and ‘suck my cock’ and he said ‘yeah’.[13] He also agreed that he had heard the phrases ‘dick in my arse’ and ‘suck my cock’ used in the pornographic film shown to him by his father.[14]
[13] Exhibit P3 at T 44.1-5.
[14] Exhibit P3 at T 44.6-21.
STM agreed with a proposition put to him that when he was living with Grandma and TWK, there was a time that he went into their bedroom and saw them doing sex stuff.[15] He then gave the following evidence:[16]
Q.And you saw [TWK] stick his penis in her vagina.
A.No, up her arse.
Q.Up her arse, okay. Did you see grandma sucking his cock.
A.Yeah. I'm 16 now.
[15] Exhibit P3 at T 44.28-38.
[16] Exhibit P3 at T 45.3-7.
He agreed that he had opened the bedroom door and seen Grandma and TWK having sex a few times, and said that it was disgusting.[17]
[17] Exhibit P3 at T 45.16-23.
STM was asked questions about his brother, TS, and specifically about the period of time when he was living with his Grandma and TWK. STM was asked whether TS ever shoved his dick up his arse, and he said no. He was asked whether TS had ever shown him his bottom and his penis, and he said no.[18]
[18] Exhibit P3 at T 45.33-38.
STM agreed that he had told a social worker from Child Protection: ‘I’m so mad, I hate when [TS] shoves his dick up my arse’.[19] He then gave the following evidence:[20]
[19] Exhibit P3 at T 46.1-14.
[20] Exhibit P3 at T 46.13-28.
Q.So you told them that.
A.Yeah, I have.
Q.Did that actually happen.
A.Yes. No, he shoved his arse at me.
Q.So he shoved his arse at you.
A.Yeah.
Q.As well.
A.Yeah.
Q.Did that happen around the same time that you told your mum that [TWK] shoved his dick up your arse.
A.Yeah and she said 'He fucked his arse right up like [TWK]', yeah, like that.
Q.Who said that.
A.Mum.
Q.Mum, okay. About [TS].
A.No, about [TWK].
STM gave evidence that he was taken to the first two interviews he had with Ms Handby by CJ (Grandma). He was asked if CJ had told him why he was going to the second interview and he said that she had told him that Ms Handby was going to talk to him about TWK. He was asked if Grandma had told him what to say to Ms Handby about TWK, and he said, ‘she said ‘he’s rude’’. He gave the following evidence:[21]
Q.Did she say anything making sure you tell Sally about [TWK] putting his dick in your arse.
A.Yeah.
[21] Exhibit P3 at T 49.26-28.
The cross examination concluded with the following evidence:[22]
[22] Exhibit P3 at T 50.6-13.
Q.[TWK] didn't stick his dick in your arse, did he.
A.Yeah, yeah, he has.
Q.And [TWK] did not suck your penis.
A.Yeah, he has.
Q.You saw that stuff in the sex films.
A.Nuh.
Q.You are making it up, aren't you, [STM].
A.No, I'm not.
Mrs Smith and Mr Davis
Mrs Smith and Mr Davis confirmed that on the evening of Saturday 25 August 2018, TWK, accompanied by CJ, the complainant and two of his siblings (JS and RM) attended at Mrs Smith’s home for dinner. The group (except for JS) ate dinner in the ‘entertainment area’, photographs of which are included in Exhibit P5. They ate lasagne.
Mr Davis gave evidence that during the evening he observed TWK give magazines to both STM and RM. Mr Davis described the magazine given to RM as a ‘female tattoo book’ and the magazine given to STM as a ‘porno book’. Mr Davis said he was sitting next to CJ when STM showed CJ the centre page of the magazine which depicted a naked girl with her legs spread wide. He expressed being intrigued by CJ’s response, which was to say ‘Oh, she’s a pretty girl isn’t she’.[23]
[23] T 35.2-28.
He described the contents of that magazine as explicit and said it was ‘basically filled with naked women’.[24] Although he did not personally flick through every page of the magazine, he said he had seen similar magazines before and had an idea of what its contents were.[25]
[24] T 35.35.
[25] T 39.34-40.4.
Mr Davis recalled TWK saying something along the lines that STM needed the magazine to help him be a man or a male.[26]
[26] T 35.38-36.4.
Mrs Smith also recalled observing TWK give both STM and RM ‘books’ to look through during the evening. She described the books as ‘tattoo books’, and said ‘but one was more manly than the other’.[27] She said she had seen the books before that as TWK was looking at them out in the entertainment room, and also said that CJ had seen them and had said they were not suitable for the kids to be looking at.[28]
[27] T 47.15-16.
[28] T 47.22-31.
Mr Davis was asked in cross-examination if, during the course of the evening, he had heard the phrase ‘dick in the arse’ used at all and said he had.[29] When asked in re-examination in what context he had heard this phrase said, he explained that TWK had used this phrase when relating ‘to the room’ (and therefore to the group including STM) the occasion of his first sexual experience.[30] He could not remember hearing the phrase ‘suck my dick’ said at any time during the dinner.[31]
[29] T 40.8-11.
[30] T 40.36-41.20.
[31] T 40.12-14
Mr Davis gave evidence that later in the evening, he went into the kitchen to help with the washing up. He heard CJ ask where STM was, and heard TWK say STM was tired, so he had put him to bed in the back room.[32] Mr Davis described the back room as a standalone shed at the back of the house, which had been lined, and contained a billiard table, a bar, a double bed and a single bed.[33] Exhibit P5 contains photographs of both the inside and outside of the ‘back room’.
[32] T 37.4-6; T 37.31-32.
[33] T 37.33-38.2.
Mr Davis said he overheard a conversation between CJ and TWK to the effect that CJ wanted to leave and to take the kids, including STM, home with her, and that she wanted TWK to go and get STM. He heard TWK say to CJ, just leave STM there and pick him up in the morning. CJ had said she wanted to take STM home with her then, rather than having to come back to get him the next morning, and an argument ensued.
Mr Davis explained that thereafter he took Mrs Smith to her bedroom, explaining that she required assistance to get ready for bed as she is in a wheelchair, and that he did not see either CJ, TWK or any of the children again that night. He slept at Mrs Smith’s home that night, but did not see anyone the following morning, as he had to leave early to go to work.
Mrs Smith also gave evidence that after dinner, CJ and TWK were arguing about STM staying over. She said she only heard part of the argument as she had gone into her bedroom and turned on the television. She said when everything settled down, she had gone outside to say goodbye to CJ, JS and RM. She heard TWK say that STM was asleep in the back room.[34] This was the first time that STM had ever stayed overnight at her home.[35]
[34] T 48.14-15.
[35] T 48.23-24.
Mrs Smith said she then went to bed. The next day she saw TWK and STM together near where the chooks were, in the back yard, beyond the back shed. She said that ‘wherever [TWK] went that morning, [STM] was with him the whole time’.[36] CJ had arrived around lunch time to collect STM. She recalled CJ taking STM (and JS and RM who were also with her) to a nearby park. She could not recall if TWK had gone with them to the park.
[36] T 48.33-34.
In cross-examination, Mrs Smith said she had not observed anything strange about how TWK and STM were interacting that morning. She said the grandchildren got along really well with both TWK and CJ, and there was nothing she observed in terms of STM’s behaviour with TWK on the morning after the alleged offending which was different.[37]
[37] T 52.38-53.14.
RJ
RJ is STM’s mother. She gave evidence that on Monday 27 August 2018, she was driving her children to care and to school. STM was in the front passenger seat. He said to her ‘Mum, I’ve got something I want to tell you’ and then said ‘[TWK] stick his dick up my bum’.[38]
[38] T 21.3-5.
RJ said she was gobsmacked, and asked STM if he still wanted to go to school, or if he wanted to stay with her and go to the police station. He had said he still really wanted to go to school. She described STM as being ‘scared’ and when asked how she knew that said ‘[j]ust the way he looked at me and how he was helpless against his defences.’[39]
[39] T 21.20-23.
RJ dropped STM at school, and thereafter was involved in a car accident. Later that day she returned to school to collect STM, at which time she was aware that the police and Child Protection Services had become involved.
RJ gave brief evidence about the various disabilities suffered by her four children. She said that in addition to having an intellectual disability, STM suffered from asthma and had an obsessive-compulsive disorder. As to the latter, she said this was apparent from both his actions, tempers and moods. She agreed with a proposition put to her that STM would often say things over and over again if it was something that was bothering him. Similarly, she agreed that he would often use the exact same words, but only if something was really bothering him.[40]
[40] T 22.29-23.16.
In cross-examination, RJ denied ever being told by STM that TS had stuck his dick up his arse, nor of being aware he had made allegations to that effect.[41]
[41] T 25.25-32.
RJ said that she was aware of allegations made by STM against her mother, CJ, and that STM had told her that ‘[CJ] sucked my dick’, but had not told her anything else about CJ.[42] As to those allegations, RJ said that she did not believe them, and that her mother had not sexually abused her when she was growing up. She said; ‘I don’t know where he’s coaxed these things because, like I said, it’s not – it wouldn’t be true’.[43] She explained that she loved and trusted her mother, and said STM still loved her mother too, and still asked about her.
[42] T 28.2-4.
[43] T 26.25-26.
RJ denied ever being told by STM of any sexual activities occurring between he and RM, or any of the children at his school. She denied that STM had ever told her he had been sexually abused either by his father, TM or by her partner, S. She denied that STM had ever told her that he had been shown pornography by TM or S.
Dr Edwards
Dr Edwards undertook a forensic medical assessment of STM at the request of Child Protection Services on Tuesday 28 August 2018. She explained that prior to undertaking the assessment, she received some background information from police and Child Protection Services. She also spoke with CJ, who accompanied STM to the examination, to gather some background medical information and her understanding of the allegations. That conversation had taken place in another room, away from STM.
The examination was undertaken using a colposcope which has bright light magnification and records the examination. STM’s genitalia and anal area were examined, and DNA samples collected for analysis.
During the perianal examination, STM’s buttocks were separated to look closely at the anal opening, such that it was possible to see the beginning of the anal canal, but no further. Upon separation of the buttocks, Dr Edwards observed an abraded area at the very top of the anal opening, involving one of the skin folds overlying the opening to the anus. She described an area of redness in the middle, with more diffuse redness surrounding that area and some very thin superficial skin peeling around that area.
She estimated the size of the abrasion at between ‘2 by 1-2 cm’[44] and explained that by the word abrasion she meant ‘a loss of the superficial layers of the skin through frictional forces’.[45] The abrasion was only visible once the buttocks were separated and did not involve the lining (or inside) of the anal canal.[46]
[44] T 88.21-23.
[45] T 88.31-34.
[46] T 88.22-34.
Exhibit P7 is a sketch drawn by Dr Edwards depicting the location of the injury she observed, having regard to what was recorded on the colposcope during the examination.
Dr Edwards gave evidence that an act of anal intercourse ‘would account for the injury’ that she observed.[47] In cross-examination, she gave evidence that other actions involving the application of frictional forces over the area could also account for the injury. Such actions could include, for example, STM scratching himself due to an irritation in the area, the passage of a large or difficult stool, or excoriation from diarrhoea.[48]
[47] T 89.25-32.
[48] T 90.14-22; T 90.30-37.
She was unable to express an opinion as to the likelihood of anal intercourse being the cause of the injury.
Dr Young
Dr Robyn Young is a Clinical Psychologist who, in addition to having a teaching role as a professor at Flinders University, is a Consultant at Headstart Intervention Services. In her many years of practice, she has undertaken countless psychological-diagnostic assessments and her role at Headstart involves a particular focus on assessing children with autism, many of whom have intellectual disabilities.
Dr Young assessed STM on one occasion only on 22 May 2020. She gave evidence at trial and produced a report dated 21 June 2020.[49]
[49] Exhibit P6.
For such purposes, Dr Young had access to numerous documents, none of which were available to the court, including psychological assessment reports authored by Patricia Mitchell, Psychologist and Carolyn Patterson, Psychologist and a speech pathology report. Dr Young gave evidence that from those materials, she ascertained that STM had been diagnosed as suffering Global Developmental Delay at four years of age. She said that diagnosis was often given to children who had delays across most of their developmental milestones, including their physical development, their communication and their motor skills. The majority of those children were likely to ultimately have a diagnosis of intellectual disability.
Dr Young was requested by SAPOL to examine STM and provide a report addressing whether STM had a disability that affected his capacity to give a coherent account or respond rationally to questions and, if so, how and what supports could be put in place to assist him to give a coherent account or to respond to questions.
At the time of the assessment, STM was in the care of the Department of Child Protection and living alone but receiving care from three resident support workers. Dr Young described STM as polite and pleasant and stated that he volunteered information about the alleged offending within the first few minutes of the assessment. He also described experiencing bad dreams in which those things happened to him again.
Dr Young conducted formal testing of STM using the Wechsler Intelligence Scale. This involved administering a number of tests to ascertain STM’s level of cognitive functioning, verbal comprehension, visual spatial, fluid reasoning, working memory and processing speed to derive a full-scale intelligence quotient (FSIQ), being a score considered the most representative indicator of general intellectual functioning.
Dr Young outlined the nature of the testing undertaken and the ultimate FSIQ score achieved by STM. STM achieved an FSIQ of 44, which was in the extremely low range when compared to other children of STM’s age. This placed STM in a percentile rank of less than 0.1,[50] meaning that 999 out of 1000 people of his age would have a higher IQ than him.[51] Indeed, Dr Young said this FSIQ was probably the lowest, from memory, that she had ever scored.[52]
[50] T 67.12-14.
[51] T 64.23-35.
[52] T 80.12-15.
Dr Young was asked whether she was able to give a mental age equivalent with respect to STM’s IQ. She explained that the testing was aimed at ascertaining where a patient fell in terms of deviation from the average IQ of 100, rather than their mental age equivalent. She explained that 66% of the population fell within one standard deviation of 100 (a standard deviation being 15) meaning 66% of the population had an average IQ of between 85 and 115. A score below 70 represented intellectual disability.[53]
[53] T 64.3-13.
STM’s FSIQ of 44 was more than three standard deviations below the average IQ and was also equivalent to a chronological age of less than approximately 6 years and 2 months.[54]
[54] T 67.15-68.1
Within the Wechsler Testing, STM performed particularly poorly in tests for verbal comprehension, which demonstrated his ability to verbalise meaningful concepts, to think about verbal information and to express himself using words. His score of 50 was ‘extremely low’ and less than the 0.1 percentile.[55]
[55] Exhibit P6, p 8.

STM also performed very poorly, with a score of 45, on tests of working memory, again being an ‘extremely low’ score and less than the 0.1 percentile.[56] Those tests measured STM’s ability to register, maintain and manipulate visual and auditory information. Dr Young explained that working memory was a necessary pre-requisite for information to then be maintained in both short and long-term memory.[57]
[56] Exhibit P6, p 8.
[57] T 66.9-16.
On tests for processing speed, which measure speed and accuracy of visual identification, decision making and decision implementation, STM also scored in the extremely low range and a percentile ranking of less than 0.1. He performed slightly better on tests involving visual spatial skills and fluid reasoning, but still within the ‘extremely low’ range.
In addition to undertaking the Wechsler Testing, Dr Young had regard to an adaptive behaviour assessment system (ABAS) measure completed by STM’s carers. Dr Young explained that the ABAS involved STM’s carers responding to questions which assessed STM’s ability to undertake a wide range of skills including communication, self-help, self-direction and home living skills. The assessment required the carers to respond to questions as to whether or not STM was able to do a task and the frequency with which he would undertake such a task, if necessary. The carers were asked to provide a score of between 0 to 3, with ‘0’ indicating STM was not able to complete the task, ‘1’ indicating that he was able to do the task, but never did it, ‘2’ indicating that he sometimes undertook the task or skill when needed and ‘3’ if he almost always undertook the task or skill when needed.[58]
[58] T 69.2-17.
STM achieved a General Adaptive Composite (GAC) score of 64, meaning that his overall level of adaptive behaviour fell within the extremely low range, being as high as or higher than only 1% of individuals of the same age.[59]
[59] Exhibit P6, p 9.
The GAC summarises performance over three domains. The ‘conceptual domain’, summarises performance across communication, functional academics and self-direction skills. STM achieved a domain score of 59, being in the ‘extremely low’ range, and as high or higher than 0.3% of individuals of the same age.[60] He performed slightly better on tests within both the ‘Social’ and ‘Practical Domain’.
[60] Exhibit P6, pp 9-10.
Based on these results, Dr Young diagnosed STM as suffering a moderate intellectual disability, with deficits in intellectual functioning affecting his mental abilities such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning and experiential learning.[61] The ABAS results also demonstrated that STM experienced great difficulties within all areas of adaptive behaviour.[62]
[61] Exhibit P6, pp 10-11.
[62] Exhibit P6, p 11.
Dr Young considered STM’s intellectual disability ‘would have a significant impact on his communication skills’.[63]
[63] T 71.1-7.
She expressed the opinion that STM’s disability would affect both his capacity to give a coherent account and respond rationally to questions. She explained that STM’s intellectual capacity limited his judgment, ability to reason, problem solve and practical understanding, being critical components affecting his word knowledge, word comprehension and ability to articulate thoughts in a coherent manner.[64]
[64] Exhibit P6, p 11.
In addition, Dr Young expressed the opinion that STM’s poor working memory could impact his ability to recall information and to recall events, the longer between the event and recall. STM’s poor verbal comprehension affected his ability to answer and to interpret questions, making him vulnerable to being misunderstood or thought to be less credible.[65]
[65] Exhibit P6, p 12.
Dr Young was provided with a copy of the transcript of the first record of interview conducted between STM and Ms Handby on 4 October 2018. That transcript was not part of evidence before the court. Dr Young referred to that record of interview to provide examples of the difficulties experienced by an interview-taker in obtaining a coherent account from STM having regard to his intellectual disability and its impact on his ability to both understand and interpret the questions asked, to appreciate the perspective of the interviewer and to accurately communicate a response.
Dr Young made reference to STM’s acquiescence in the sense that he often agreed with a proposition put to him, or simply responded ‘mmh mmh’ and the fact that he had difficulty maintaining focus and would often go off on a tangent.
The same observations can be made with respect to STM’s record of interview comprising his evidence in chief and his evidence in cross-examination, wherein there appears to be numerous occasions where he may have acquiesced by way of simple agreement with a proposition put to him, making it difficult to ascertain the reliability of that response.
Similarly, on numerous occasions during the course of both the interview with Ms Handby on 8 October 2018 and in cross-examination, STM introduced unrelated topics, either by way of a response to a question or similarly by way of comment.
Dr Young also observed that STM engaged in echolalic speech. In her report, she gave an example of STM repeating a phrase he had just heard, namely when asked ‘what else happened with [TWK]’, STM replied ‘what else happened with [TWK]’. This was an example of immediate echolalia.[66]
[66] Exhibit P6, p12, T 71.9-25.
She stated that he may also engage in delayed echolalia in that he may use expressions that he has heard on television or heard other people say and then repeat those.[67] Again, this was something that impacted on the complainant’s ability to give a coherent account and must therefore also impact on his reliability.
[67] T 71.9-25.
Dr Young confirmed that in this respect, when she worked with people who engaged in echolalic speech, she would be wary that they were repeating something they may have said from others if they used sophisticated or elaborate language which one would not ordinarily expect to be within their estimated vocabulary. She gave an example of a patient saying, ‘I’ve been sexually assaulted’ being sophisticated language which may be consistent with echolalic speech.[68]
[68] T 72.6-20.
She was asked whether, in her experience, if a patient used less sophisticated words, she would be as suspicious that they were engaging in echolalic speech, to which she responded ‘no’.[69]
[69] T 72.21-23.
Dr Young noted that although she had not tested STM’s long term memory, the effect of his intellectual disability on working memory was such that she would expect it to affect the accuracy of his narrative, particularly with respect to chronology and the timing of events and duration of events.[70] As to the reliability of the complainant’s memory, she was unable to comment, but noted that a lack of ability to remember may result in a witness simply agreeing (or acquiescing) to a question put to them, responding in a way they may think the person wants them to respond, rather than providing a reliable and accurate response.[71]
[70] T 72.24-73.6.
[71] T 73.14-19.
Dr Young also highlighted examples of where STM’s responses to questions indicated a literalness in the sense that he had not interpreted the question in context and had instead taken the literal meaning of what was put to him. He had also struggled with appreciating the perspective of the interviewer, such that the responses given to various questions provided insufficient information for her to be able to interpret the context to which he was referring.
In her report, Dr Young outlined appropriate supports that could be put in place to assist STM to give a coherent account and to respond to questions.[72] She stated that it would be important to provide support consistent with that required of a six-year old, being consistent with STM’s intellectual capability. In addition, she recommended STM be asked more open-ended questions, noting that he could be easily led during questioning. She suggested he be accompanied by a carer or support worker with whom he was familiar. Nevertheless, she stated there may still be difficulties, noting that STM may still be unable to interpret the intention of a question and therefore engage in random or tangential responses and the carer would of course only be able to provide emotional support and would not be able to assist him to retrieve and outline to the court information as to which he only was privy.
[72] Exhibit P6, p 13.
Importantly, Dr Young expressed the opinion that STM’s moderate intellectual disability was unlikely to impact upon his honesty, honesty being more of a personality characteristic than a cognition.[73]
[73] T 73.20-27.
However, as to reliability, in cross-examination Dr Young noted that:
·STM has difficulty understanding the concepts of time and therefore it is possible that he may have difficulty distinguishing between past, present and future;[74]
·it was possible that STM may not be able to distinguish between fact or fiction and/or be able to communicate to an interviewer whether he was in fact distinguishing between fact and fiction;[75]
·there was the potential that STM may have difficulty distinguishing between dreams he had experienced and actual events he had experienced in his waking life or alternatively, be unable to properly articulate any such difference to an interviewer;[76]
·in echolalic speech, it may be that specific words are repeated but the pronouns around those words are changed and that if the use of a certain word gained attention from people around them, it may reinforce such behaviour – in other words, if a person is given attention for saying certain words, they may be more likely to say those words again without necessarily having to hear the words many times again before repeating them.[77]
[74] T 75.30-35.
[75] T 76.20-29.
[76] T 77.8-25.
[77] T 79.1-13.
Dr Young also indicated that when questioning someone with an intellectual disability, it was important to paraphrase questions to ensure that they had a good understanding of what they had been asked to ensure the question had not been misinterpreted.[78] Further, to understand the response given by STM to a particular question, it may be beneficial to ask him to give a further explanation of what he had just said, but in a different way.[79]
[78] T 76.3-9.
[79] T 76.10-13.
In re-examination, the prosecutor asked Dr Young if the context in which a phrase or word was being repeated, needed to be taken into consideration when considering the possibility that the complainant was engaging in echolalia. She responded: [80]
Well that’s a really broad question. So if in your example you’re talking about STM specifically, he is more likely, as soon as he walked into my room, he said to me – I’m paraphrasing here but something along the lines of ‘TWK stuck a dick up my arse’. Obviously I don’t think he would say that to the checkout person at Drakes because the context that he’s come in, he’s obviously been told this is about the incident and he’s then blurted that out as soon as we sat down pretty much.
[80] T 79.15-38.
Closing Addresses of Counsel
The prosecutor submitted that notwithstanding STM’s intellectual disability and the impact it had on his ability to provide a coherent account, when his evidence was carefully analysed, I should find that he was telling the truth as to the circumstances of the alleged offending.
The prosecutor acknowledged that STM gave very limited detail as to the facts of the offending but submitted the facts he had given relating to the surrounding circumstances were in fact reliable and accurate.
For example, the evidence of both Mr Davis and Mrs Smith supported that given by STM with respect to the opportunity for the offending to have occurred in the manner as alleged. Mr Davis was aware that TWK had put the complainant to bed in the ‘back room’ and the evidence of Mrs Smith was to the same effect. This was the first and only occasion upon which the complainant had stayed overnight at Mrs Smith’s home.
As described by STM, the ‘back room’ comprised what was effectively a bedroom in the shed and was near where chooks were kept in Mrs Smith’s backyard.
STM recalled TWK heating up lasagne after the alleged offending and Mrs Smith had confirmed that the group had eaten lasagne for dinner that night.
The prosecutor submitted the circumstances and content of the initial complaint made by STM to his mother showed a degree of consistency of conduct in terms of the timing of that complaint, being that it was raised in the car with her when they were some distance away from both TWK and/or his Grandma and only two days after the alleged offending.
Importantly, forensic examination conducted by Dr Edwards was also consistent with the complainant’s allegations.
It was submitted that the complainant was not fabricating or imagining the allegations, nor simply repeating what he had heard in terms of terminology used around him by others, either on the evening of the alleged offending or on any other occasion, or in any Playstation4 games he had played, or pornography he had viewed.
While acknowledging the difficulties STM had in both expressing himself and potentially comprehending some of the questions put to him by Ms Handby and/or in cross-examination, the prosecutor submitted that such difficulties did not impact on STM’s honesty, and that if his evidence was carefully scrutinised, it was consistent with him being truthful on the critical issue as to whether the alleged acts of sexual intercourse had occurred.
On the topic of echolalia, the prosecutor noted that the language used by STM when describing the offending was unsophisticated, thus making it less likely that he was simply repeating something another had told him. She submitted that there had been no significant changes, nor were there any significant inconsistencies in STM’s description of the alleged offending, thus supporting a finding that his evidence was reliable. She also noted that there was a multitude of different phrases that had been used by STM when discussing sexual activity of a similar nature (being that not involving TWK) such that she submitted that the allegations were not simply an example of parroting or repetition on the part of the complainant wherein he was merely using the same words to attribute conduct to TWK as he had with respect to others.
It was submitted that I could be satisfied beyond reasonable doubt as to the reliability and credibility of STM’s evidence pertaining to the alleged offending.
Counsel for the defendant made only brief submissions, focussing on the court’s inability to rely on the accuracy of STM’s evidence, having regard to the nature and extent of his intellectual disability and the impact of that disability on his ability to provide a coherent account, as outlined by Dr Young.
It was submitted that the court could not be satisfied, beyond reasonable doubt, that the allegations made by STM were not merely attributable to his use of echolalic speech. It was submitted that in particular, the court could not be satisfied that in making the allegations, the complainant was not simply repeating phrases he had heard either while observing pornography with his father, watching adult-themed video games that he played on his Playstation4 or any other multiple avenues through which he may have been exposed to this type of language.
Emphasis was placed on the complainant’s use of language, namely ‘dick in the arse’ or ‘suck my dick’, to describe the accused’s alleged offending against him, being similar to language he had also used to describe alleged conduct involving his brother, TS, his sister, RM and his Grandma. It was submitted that the court could not be satisfied that what the complainant was doing was merely using identical words, which garnered the attention of others and replacing the protagonist.
I was asked to carefully observe not only the complainant’s evidence but his manner of speech and the language used by him in the record of interview conducted on 15 April 2019 with Ms Handby (Exhibit D1) as providing better context and background with respect to the allegations and of my assessment of the critical issue of the complainant’s reliability. In that respect, it was submitted that particular regard should be had by me to the evidence of RJ as to her disbelief of the allegations made by STM involving CJ, being a similar allegation to that he had made against TWK.
Alternatively, it was submitted that having regard to Dr Young’s evidence, it was a reasonable possibility that in making the allegations, STM was relaying or recounting a dream he may have had, or recounting what he had observed in pornographic material, rather than describing actual acts committed by TWK against him, without understanding that those to whom he was talking did not appreciate that he was talking of fiction rather than fact.
Alternatively, it was a reasonable possibility that STM knew that what he was saying was untrue but because of his difficulties in perception, he did not understand that those to whom he relayed the story knew or understood that what he was telling him was not true.
Finally, it was submitted that while the forensic evidence provided some support to STM’s allegation, it was similarly consistent with a number of innocent explanations, none of which had been positively excluded as a potential cause of the injury observed by Dr Edwards.
It was submitted that in the circumstances, the court simply must have a reasonable doubt as to whether the alleged acts, as described by the complainant, ever occurred and that it could not be satisfied of the accused’s guilt with respect to either count beyond reasonable doubt.
Assessment of Lay Witnesses
I will discuss my assessment of STM’s evidence under the heading “Discussion and Findings”.
RJ, Mrs Smith and Mr Davis all presented as honest witnesses who were doing their best to accurately recount events to the court. There were some minor differences in the evidence of Mrs Smith and Mr Davis as to what transpired at Mrs Smith’s home on the night of the alleged offending. However, their evidence was generally consistent as to the critical issues of who was present, that STM had been put to bed in the back room and their recollection of overhearing the argument between CJ and TWK as to whether STM should be woken and brought home with her, or whether he should stay the night at Mrs Smith’s home.
As to the evidence of what magazines were provided by TWK to STM and RM, I prefer the evidence of Mr Davis. I accept his evidence that he was seated next to CJ and had the opportunity to view the contents and therefore the nature of the magazine provided by TWK to STM. Mr Davis expressed genuine shock at the sexually explicit conversation which took place that evening in front of STM and RM, and of the fact of the provision of the pornographic magazine by TWK to STM. Where Mr Davis’ evidence differs from that of Mrs Smith, I prefer that of Mr Davis.
As to RJ, she gave very limited evidence, the primary purpose of which was to outline the nature of the complaint allegedly made by STM to her on 27 August 2018. I accept RJ’s evidence that STM did complain to her about the offending and the circumstances in which he did so. This evidence is consistent with the fact that authorities became aware of and involved in the matter that same day, albeit there was no evidence to support a finding that such involvement was generated by RJ in response to hearing STM’s complaint.
RJ first gave a formal statement to police outlining her recollection of what STM told her at the time of the complaint on 29 August 2019, being just over a year thereafter. It is possible that her recollection of the precise words used by STM to describe the offending during that conversation was influenced by what RJ subsequently heard him, and others, say with respect to the allegations, during that intervening period.
Discussion and Findings

I make the following findings having regard to all of the evidence.
I am satisfied and find that on the night of 25 August 2018, STM slept in one of the beds in the shed located in the backyard of Mrs Smith’s home. I accept the evidence of Mr Davis, that it was TWK who put STM to bed in that location. I accept the evidence of both Mr Davis and Mrs Smith that TWK engaged in an argument with CJ during the course of that evening, wherein he argued in favour of STM remaining in the shed and sleeping there overnight, rather than travelling home with CJ.
This was the first and only occasion STM had stayed at Mrs Smith’s home. It provided an opportunity for the offending to have occurred, away from CJ’s home, CJ and the other three grandchildren.
I accept Mrs Smith’s evidence that on the morning after the alleged offending, she observed TWK and STM in each other’s company, consistent with TWK having also stayed overnight at Mrs Smith’s home. I am satisfied that he did so.
The photographs taken on 17 May 2019, some nine months after the alleged offending, were tendered as Exhibit P5. In cross-examination, Mrs Smith was asked a question intended to ascertain whether those photographs accurately depicted the state of both the entertainment room and the back room/shed at the time of the alleged offending. The actual question asked enquired as to whether there was any difference in the house between when those photographs were taken and the occasion of the alleged offending, to which she responded ‘no’.[81]
[81] T 50.11-20.
Mrs Smith gave evidence that TWK usually slept in a chair in the entertainment room, by which I am satisfied she intended to refer to one of the white plastic chairs as depicted in photograph 2 of Exhibit P5. She said alternatively, he would sleep in one of the beds in the back room. Photograph 7 depicts one of those beds as being made up with sheets and a blanket and pillow. Photograph 6 depicts another bed, without any suitable bedding, covered in various boxes and other paraphernalia. Whether the beds were in the same state as at the date of the alleged offending (in the sense that only one was effectively available to be slept in), is uncertain.
However, having regard to this evidence, I find that when TWK stayed at Mrs Smith’s home overnight on 25 August 2018 he slept in the back room, there being beds available in that room, in contrast to the uncomfortable alternative of sleeping in a plastic chair in the entertainment area. As such, I am satisfied that both STM and TWK slept in the back room/shed on the night of the alleged offending, being a standalone room located in the backyard of Mrs Smith’s home, thus providing the opportunity for the alleged offending to occur, particularly if only one bed was effectively able to be slept in.
I accept Mr Davis’ evidence that during the course of the dinner, immediately prior to the occasion of the alleged offending, TWK handed to STM a pornographic magazine containing images of naked women in provocative poses. I further accept the evidence of Mr Davis that during the course of that evening he heard the phrase ‘dick in the arse’ used in a discussion to which STM was privy, and that this occurred in the context of TWK relating to the group (including STM) details of his first sexual experience.
I accept the submission advanced by the prosecutor that TWK’s action in providing this magazine to STM at that time and engaging in that type of discussion, gives some insight into his state of mind at the time, namely one that had as, at least some of its focus, the issue of sex, and specifically anal sex.
I accept RJ’s evidence of the circumstances in which STM told her about the alleged abuse. I consider it likely she has accurately recalled the words he used when doing so. I accept that the nature and timing of this complaint demonstrates consistency of conduct on the part of STM.
I accept the evidence of Dr Edwards, namely that the injuries she observed upon forensic examination of the complainant on 28 August 2018, were consistent with the offending as described by him and specifically that an act of anal intercourse could ‘account for’ the abrasion she observed at the top of STM’s anal opening, involving one of the skin folds.
However, I also accept Dr Edwards evidence that the abrasion may have been caused by either the passage of a large stool, diarrhoea, or by STM scratching himself in the area. At no stage was STM questioned, either by Ms Handby or in cross-examination, as to whether he had suffered diarrhoea, or could recall passing a large stool or scratching his bottom, in the days immediately preceding the examination. As such, I cannot exclude, as a reasonable possibility, that the injury was caused other than during an act of anal intercourse.
I am satisfied that given the evidence that was led relating to TWK’s relationship with CJ, that he must have been aware of the nature and extent of STM’s disability and of his vulnerability. I also accept that it is possible, as submitted by the prosecutor, that as TWK’s conduct in openly discussing his own sexual exploits and providing pornographic material to STM was allowed to occur and go ‘unchecked’ by other family members, it may have emboldened him to take the further step and to offend in the manner as claimed.
All of those findings are consistent with the complainant’s allegations with respect to the alleged offending, and lend support to a finding that the complainant is telling the truth with respect to the alleged offending.
However, to find TWK guilty of either count, I must be satisfied beyond reasonable doubt as to both the reliability and credibility of STM’s evidence.
I have carefully scrutinised STM’s evidence, being mindful that it was not given on oath.
Although, STM’s description of the fact and nature of the alleged offending has remained largely consistent, that description contains only very brief details and was not tested by rigorous cross-examination, having regard to his disabilities. STM has maintained, consistently, that the offending occurred when he had been asleep in a bed in the shed at Mrs Smith’s house, on the relevant Saturday night and that TWK stuck his dick up his arse and also sucked his dick. However, the only other details provided by STM to Ms Handby were that immediately before the offending, TWK undid the laces of his shorts and pulled them down, and that thereafter TWK gave him lasagne.
As to the first of those additional details, in cross-examination, STM said he was wearing ‘jocks and pants’ at the time of the offending, and then agreed with a proposition put to him that he was wearing track pants. This may have been an example of ‘acquiescence’ as described by Dr Young. Similarly, STM’s response may have reflected a misunderstanding as to the context of the question – in that he may have thought he was being asked to describe what he was wearing at the time he was cross-examined. He was not re-examined to clarify, for example, as to whether, when his ‘shorts’ were undone and pulled down, he was referring to boxer shorts, or shorts which were intended to be worn as an outer garment. As such, whether there is any inconsistency in this aspect of STM’s evidence is uncertain.
This is just one example of the difficulties faced when assessing the reliability of STM’s evidence.
Dr Young recommended that STM be asked open ended questions to reduce the risk of acquiescence. While Ms Handby endeavoured to do so, particularly as to the circumstances of the offending, STM was reluctant to go into detail, an example of which can be found in the questioning reproduced at paragraph 48 herein.
He was also prone to introducing unrelated topics and had difficulty remaining focussed.
When STM was interviewed by Ms Handby, she repeatedly used the terminology ‘when [TWK] stuck his dick up your arse’ in an endeavour to direct STM to provide further details of the alleged offending.
Notwithstanding this was the language initially used by STM to describe to Ms Handby what had happened to him, having regard to Dr Young’s evidence, the fact that phrase was repeated several times by Ms Handby during her discussions with STM, does give rise to the possibility that when he later repeated the allegations using the same language, he was engaging in echolalic speech.
STM gave evidence in cross-examination that Grandma took him to the interview with Ms Handby on 8 October 2018 (and to the first interview) with Ms Handby. He said that before the second interview, Grandma had told him Ms Handby was going to talk to him about TWK. He agreed with a proposition put to him that Grandma had told him to make sure he told Ms Handby ‘about [TWK] putting his dick in [your] arse’.[82]
[82] Exhibit P3, T 49.26-28.
It is therefore possible that when STM told Ms Handby what TWK had allegedly done, he was repeating words he had heard his Grandma use just prior to the interview. Similarly, it is possible that he responded to the questions in the way he thought Ms Handby wanted him to respond. In other words, to tell her that TWK had stuck his dick up his arse.
STM was asked by Ms Handby on several occasions whether the accused had ever offended in a similar manner against him. The language used by the questioner was words to the effect of ‘did [TWK] stick his dick in your arse one time or more than one time?’ Although the complainant’s response was, invariably, ‘more than one time’, he did not at any time detail any other occasion, save that for the alleged offending, when such conduct had occurred.
It may be that in responding ‘more than one time’ to such questions, STM was simply engaging in echolalic speech of the immediate type as described by Dr Young. Alternatively, it is possible that STM was intending to convey that there were other occasions of similar abuse, albeit not further detailed by him. In this respect, I note the response to the questioning outlined at paragraph 55 herein, which can be understood that the complainant intended to outline that the accused had anally raped him on four separate occasions. Unfortunately, this response was not clarified with STM, to ensure it was properly understood (or that he had properly understood the question being asked of him), nor were further details sought of any other occasions of alleged abuse by TWK.
STM told Ms Handby that there were occasions when he was home, at Grandma’s, with TWK, but Grandma was not there. He also described occasions when TWK had shown him pornographic magazines and movies, although he denied that TWK had anally raped him during those occasions. As such, TWK had other opportunities to potentially offend against STM. However, there was no evidence, save for the complainant’s responses as previously outlined herein, that he had done so, or of the circumstances of any other alleged offending.
I have outlined in detail Dr Young’s findings as to the difficulties STM has in giving a coherent account of the alleged offending. Although I am satisfied that STM understands the difference, at a base level, between the truth and a lie, unfortunately the combination of matters raised by Dr Young causes me to have a reasonable doubt as to the reliability of STM’s evidence and his account of the alleged offending.
I refer specifically to Dr Young’s evidence that STM may have difficulty distinguishing between the past, present and future, the difficulties in ascertaining whether STM is distinguishing between fact and fiction in the giving of his account, and the similar difficulties he may experience in articulating whether what he is describing is a dream or an experience he has had in his waking life.
STM has made allegations of sexual activity and offending against him involving people other than TWK. Whether or not those allegations are true is uncertain. He has used similar terminology, albeit not identical on each occasion, to describe the sexual activities involving those other persons, to the terminology he used when describing the alleged offending.
STM made similar allegations against his half-brother, TS. However, during cross-examination he gave evidence (seemingly) disavowing any such allegations, namely:[83]
QDid [TS] shove his dick up your arse?
ANo.
QNo, he didn’t?
ANuh.
QDid [TS] show you his bottom and his penis?
ANuh.
[83] Exhibit P3 at T 45.33-38.
He agreed that he had said to a social worker ‘I’m so mad, I hate when TS shoves his dick up my arse’. When asked if that actually happened, he gave the following evidence:[84]
AYes. No, he shoved his arse at me.
QSo he shoved his arse at you?
AYeah.
QAs well?
AYeah.
[84] Exhibit P3 at T 46.16-19.
This passage of evidence again highlights the difficulties encountered in interpreting and properly understanding STM’s evidence, so as to assess the reliability of that evidence.
During the record of interview conducted with Ms Handby on 15 April 2019, when asked why he was not living with Grandma, STM responded ‘um, because she has been sucking my dick and all that but she hasn’t’. (my emphasis) As such, it is now uncertain whether STM maintains the allegations he made against his Grandma.
In that same interview, STM told Ms Handby that RM had ‘sticked her fanny in my arse’, an allegation which involves a degree of physical improbability.
Further, during cross-examination, STM gave inconsistent evidence on the issue of whether his father had ever shown him pornography. He initially denied his father had ever done so, but then agreed he had told Ms Handby that he had, and subsequently gave evidence that his father had, in fact, shown him pornography.
Although neither physical improbabilities nor (significant) internal inconsistencies were present in the complainant’s evidence with respect to the alleged offending, the matters I have highlighted above are relevant in my overall assessment of STM’s reliability and credibility as a witness, and cause me to have some doubts, overall, as to his reliability.
I have carefully observed and considered all of the evidence. There is a volume of evidence which supports STM’s allegations, such that I consider it likely the offending did in fact occur. However, that is not the test.
After carefully analysing STM’s evidence, I cannot be satisfied beyond reasonable doubt that STM is a reliable witness. I cannot be satisfied beyond reasonable doubt that the sexual activities STM described as having occurred with TWK on the relevant occasion, did in fact occur.
I cannot exclude as a reasonable possibility that in describing the offending, STM may be recounting activities he has observed in pornographic movies or magazines, or seen when he walked in on Grandma and TWK, substituting himself and TWK as the protagonists when recounting that story.
Similarly, I cannot exclude as a reasonable possibility that when describing the allegations against TWK, STM has repeated language he has heard on previous occasions being said by characters in pornographic films or in Playstation4 games, or the language he heard TWK use during the dinner, shortly before the alleged offending.
I cannot exclude as a reasonable possibility that in describing the alleged offending to others, STM has engaged in echolalic speech, and has continued to do so, as when he does, he receives the attention of others.
Finally, having regard to Dr Young’s evidence, I cannot exclude as a reasonable possibility that what STM is describing as having occurred in the shed is a dream, rather than a recollection of actual events, and that given his significant difficulties with perception, he does not understand that those to whom he is talking, do not know that what he is describing is a dream.
I cannot be satisfied beyond reasonable doubt of the elements of the alleged offences.
Conclusion
I find the accused not guilty of both counts.