R v Wilson
[2012] SADC 180
•17 December 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILSON
Criminal Trial by Judge Alone
[2012] SADC 180
Reasons for the Verdicts of His Honour Judge Muecke
17 December 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of indecent assault and two counts of gross indecency.
VERDICT: Accused found guilty of all three counts.
R v WILSON
[2012] SADC 180Background
SW was born on 21 March 1990. She had her 16th birthday on 21 March 2006.
The accused was born on 1 April 1964. He had his 42nd birthday on 1 April 2006.
SW and the accused are Aboriginal as are most of the witnesses at the trial.
When SW was a child she lived with her mother. Their life together was sometimes volatile and fractured. SW would regularly visit and sleep-over at houses other than where she and her mother lived. She would often sleep-over at her Auntie Dianne’s house, including when the police took her there from her mother’s house. Her Auntie Dianne lived at 117 Coglin Street, Brompton (“the Brompton house”). She would also sleep-over at the house of one of her cousins. This cousin, K, lived at 1 Countess Street, Paralowie (“the Paralowie house”). She visited, at least once, the house of a friend of the father of two girls she called cousins. This house was at 22 Combine Street, Salisbury North (“the Salisbury North house”).
In the earlier years SW called the accused Uncle Roy.
SW would see the accused at the Paralowie house when her uncles and aunties gathered there and drank.
She would also see the accused at her Auntie Dianne’s house at Brompton because the accused stayed there for extended periods of time. The accused is her Auntie Dianne’s brother.
SW also saw the accused when she was at the Salisbury North house because the accused lived in a house that was adjoined to the one that SW was visiting on an occasion she went there.
This case is about allegations by SW that concern the accused. She alleges that when she awoke one night when she was sleeping at the Paralowie house the accused was touching and rubbing her pants on top of her vagina (count 1), and he was trying to put his hand in her pants. She alleges that one night when she was at her Auntie Dianne’s house at Brompton she and the accused were in the lounge room where the accused turned the TV off using the remote control and then quickly turned it back on, and when he turned it back on he “flashed” his naked penis into her face and a few centimetres from it (count 2). She alleges that when she was visiting the house at Salisbury North she was in the front yard when she heard tapping from the front window of the accused’s house adjoining the place where she was visiting. When she and other children turned to look at the window and the accused was showing his penis through the window, he was playing with it and looking at her (count 3).
It is alleged that the accused’s conduct alleged to have occurred at the Paralowie house constituted the crime of indecent assault. It is alleged that the accused’s conduct alleged to have occurred at the Brompton house and at the Salisbury North house each constituted crimes of gross indecency.
The charges
The accused is charged with three criminal offences.
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Roy Ernest Wilson between 13th day of August 1999 and the 21st day of March 2006 at Paralowie, indecently assaulted SW.
Second Count
Statement of Offence
Gross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Roy Ernest Wilson between the 13th day of August 1999 and the 21st day of March 2006 at Brompton, committed an act of gross indecency in the presence of SW, being a person under the age of 16 years.
Third Count
Statement of Offence
Gross Indecency. (Ibid.)
Particulars of Offence
Roy Ernest Wilson between the 13th day of August 1999 and the 21st day of March 2006 at Salisbury North, committed an act of gross indecency in the presence of SW, being a person under the age of 16 years.
Some general matters
The Crown must prove all or any of the charges. The accused does not have to prove anything. He does not have to prove his innocence. At his trial he did not have to give evidence, nor did he have to call witnesses. Even if he had done either of those it is still for the Crown to prove all or any of the charges.
The Crown must prove the charges beyond reasonable doubt. Further, the Crown must prove each and every element of the charges beyond reasonable doubt.
Nothing short of proof by the Crown beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt, or to show that the accused is probably guilty. The accused is not to be convicted of any of the charges against him unless I am satisfied that his guilt has been proved beyond reasonable doubt.
I must consider each of the three counts separately and I must consider each in light of the evidence that applies to each separately. Further, it would be wrong of me to reason that simply because I found the accused guilty of one count that he is therefore guilty of another or of other counts.
I am not required to be satisfied of the accused’s version of events in this case that he gave to police on 1 December 2011. The burden of proof lies elsewhere and part of the relevance of what the accused told police is to consider whether it assists in casting a reasonable doubt on the evidence of the prosecution. Such a doubt may arise because of this, or for any other reason or reasons, and it is my duty to consider whether that is the case in the present matter.
Although one focus will be on the accused and his credibility, even if I do not believe him on crucial issues, that does not mean I must find him guilty. I still have to be satisfied that the Crown has proved each element of any of the charges against him beyond reasonable doubt.
I must consider carefully all the evidence I have heard and counsel’s submissions. I must decide which witnesses are credible and reliable, remembering that an honest witness can be mistaken and unreliable. In deciding whether a witness is credible and reliable I must use my life experiences and common sense. I have the right to believe or disbelieve. I may believe some of the evidence of a particular witness, and disbelieve other evidence that same witness gave.
I must consider only the evidence that I heard at the accused’s trial. I must put aside any feelings of sympathy, anger, distaste, and even prejudices (if I know I have any), and carry out my task calmly and objectively.
If, in these reasons, I speak about matters being “proved” or “satisfied” or “established”, or any other word or expression of that kind relating to the proof of matters in issue, I mean, although I do not say so on every occasion, “proof beyond reasonable doubt”.
Indecent assault
A person who indecently assaults another is guilty of an offence.
This first count relates to SW’s evidence that when she was asleep in the lounge room at the Paralowie house she awoke to find the accused touching and rubbing her pants over her vagina.
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The offence has four elements. The prosecution must prove each element beyond reasonable doubt.
The first element that must be proved is that there was an application of force by the accused to another person. Any touching or handling is sufficient. The application of force does not need to be great.
The second element that must be proved is that the application of force must be intentional rather than accidental touching.
The third element that must be proved is that the application of force must be without lawful justification or excuse.
The fourth and final element is that the assault must be accompanied by, or occur in circumstances of, indecency. Whilst opinions may differ as to what is or is not indecent, there are some types of conduct which by any reasonable standard can only be described as indecent.
The law is that no person under the age of 17 years is capable of consenting to any indecent assault. If I am satisfied that the incident in the lounge room at the Paralowie house occurred when SW was about 10 to 11 years old, she was then under the age of 17 years. She was therefore incapable of consenting if I am satisfied that the accused indecently assaulted her.
Gross indecency
A person who commits an act of gross indecency in the presence of a person under the age of 16 years is guilty of an offence.
The second and third counts relate to SW’s evidence as to what she said happened one night at the Brompton house and during the day at the Salisbury North house. She said that at the Brompton house the accused took his penis out of his pants and “flashed” it in her face. She said that at the Salisbury North house the accused knocked on the front window of his house and when she turned around he was standing at the window with his penis showing and he was playing with it and looking.
To establish either of these charges, the prosecution must prove:
1 That the accused did either of the acts alleged.
2 That either act was done in the presence of SW. This does not require consent by SW. Her consent or absence of consent is immaterial. It simply means that either act must be directed towards or against SW.
3 SW must have been under the age of 16 years. It is immaterial whether or not the accused was aware of that.
4 Either act must have been indecent. Indecency means some form of sexual conduct or activity which, in my opinion, ought to be regarded as indecent, having regard to the age of SW, the nature and circumstances of the conduct or activity, and to contemporary standards of morality and decency. There is much sexual activity which, if conducted between consenting adults, especially in private, is not in the least indecent. The same activity, however, if conducted in the presence of a person under 16 years might well be regarded as indecent by contemporary standards.
The law is intended to discountenance sexual activity with persons under 16 years and the age of SW is therefore most material in assessing whether the conduct was indecent.
5 The indecency of either act, if either occurred, must be gross. It must be something more than minor or trivial indecency. The conduct must be such as to be characterised in my mind not only as indecent, but as grossly indecent. If I am satisfied that the accused did either of the acts the subject of counts 1 or 2 I must consider whether either amounted to him committing an act of gross indecency in the presence of SW.
The issues
Issues in this case as to the three counts charged against the accused seem to be whether the Crown has proved beyond reasonable doubt that the accused did what SW said he did:
(a) when she was asleep in the lounge room at the Paralowie house;
(b) when she was on the lounge at her Auntie Dianne’s house at Brompton; and
(c) when he “flashed” himself in his front window when she and other girls were outside in the front yard of the house next door.
The accused told police on 1 December 2011 that none of these events occurred.
At the beginning of the trial Mr Richter, of counsel for the accused, outlined the issues in contention between the prosecution and the defence upon my invitation to him to do so. Mr Richter said: “this trial will resolve (sic –? revolve) largely on credit. My instructions are that these alleged incidents did not occur”.
When SW was cross-examined it was suggested to her that nobody touched her on her vagina on the night that she slept at the Paralowie house. It was suggested to her that if in fact someone did touch her it wasn’t the accused, it was someone else. It was also put to her that the accused did not expose his penis through the front window of his house at Salisbury North.
During cross-examination of SW it was not put to her that nothing like what she described as happening one night at her Auntie Dianne’s place at Brompton occurred. When it was suggested to her that it was in fact the remote that she could see in the accused’s hand, she answered: “No. It was his penis … He went to put it in my face”. When Dianne Young and Frank Lovegrove were cross‑examined it was not suggested to either of them that what they described as hearing SW yell out that the accused “flashed his googie off” in the lounge room (meaning exposing his penis to SW) did not occur. It was not suggested to either of them that they did not hear what they said they heard, and they did not see what they said they saw when they described seeing the accused shortly after hearing SW yell out. They both said that they saw the accused “pretending” to be really drunk and appearing to do up his fly when they each saw him in the area of their lounge room.
In his final address, Mr Richter submitted that I should not be satisfied that the incident constituting the first count should be found proved, or, if it is, I should not be satisfied that it was the accused who was involved in that incident. Mr Richter submitted that I should not be satisfied that the incident constituting the third count described by SW at the accused’s house at Salisbury North occurred, or that anything I find proved constituted an offence of gross indecency.
In relation to the incident in the lounge room at Auntie Dianne’s house (count 2) Mr Richter submitted this: “I concede that the primary issue in relation to count 2 is the age of SW at the relevant time. My submission is that the prosecution has to prove beyond reasonable doubt that SW was a person under the age of 16”. In relation to that issue Mr Richter submitted that “the prosecutions evidence…is a bit of a mess”.
Notwithstanding the above I must be satisfied of every element of each of the three counts on the Information against the accused before I can find him guilty of any of them.
In particular in relation to the second count, I must be satisfied beyond reasonable doubt that SW was under the age of 16 years when the incident in the lounge room at her Auntie Dianne’s house at Brompton occurred, if I am satisfied that it did. If I am not satisfied that she was under 16 years of age I must find the accused not guilty of the second count. Her age is, of course, also an element of the third count.
The evidence at trial
SW gave evidence via CCTV. When she did that she was accompanied by a support person, and the Court was closed. Orders that allowed this to occur were made with the consent of the accused. I draw no inference adverse to the accused by virtue of these special arrangements and I do not allow them to influence the weight I give to the evidence of SW.
SW told me that she was born on 21 March 1990. That means that she had her 16th birthday on 21 March 2006, and that she was twenty-two years old when she gave evidence. She said that her mother was Brenda Williams, and that she had a number of siblings. She said that her sister P passed away in September 2006.
SW told me that she lived with her mother practically all her life. She said that when she was growing up she and her mother would argue all the time. She said her mother was a “drinker, she was always drinking alcohol and stuff like that”. She said that her mother drank practically every day, and that when she did she would yell at her and her brother, call them names, and make them “feel down”. She said that sometimes her mother would call the police or she would call the police herself, or she would run away to her cousins’ house. These cousins were DH and LH. She called them cousins because she grew up with them. Those two girls were older than she. They were close to her and she would see them every day.
SW told me that she would have been 13 years or 14 years old when she started running away from her mother’s house. She later said that often the police would take her to her Auntie Dianne’s house when they were called to her house when there was trouble with her mother. Her Auntie Dianne was Dianne Young, whose partner was Frank Lovegrove. They lived at 117 Coglin Street, Brompton. She said that police dropped her off there maybe seven times a year.
SW told me that she started smoking marijuana when she was 10 years or 11 years old. She would smoke about a joint a day.
SW told me that she has known the accused since she was little. Her earliest memories of knowing him were “when everybody was drinking with uncles and aunties”. She said she would not see him often but when she did it would be at other family’s houses like that of one of her uncles. There she would see him drinking. She would also see him drinking at her Auntie Dianne’s. She said she spoke to the accused a few times. He would sometimes ask her for a smoke or the girls would ask him for a cigarette. She said that she and the girls used to call him Uncle, but now they just call him Roy.
SW told me of a girl called K. She said that this girl was her first cousin and was about a year older than she was. K’s father was Peter Morrison, and her mother was Kim Weetra. She said that K lived with her mother and father at 1 Counter Street, Paralowie. She said that when she was growing up she saw K all the time, although she did not go to her house that often. She did, however, sleep over at the house at Counter Street, Paralowie on about three occasions. She saw the accused at that house.
SW told me of one occasion she could recall when she saw the accused there when he was drinking with her uncle and her aunties. There was “like a barbeque”. Everybody was drinking and the children were in the lounge room.
SW told me that she slept over that night and all of the girls made their beds in the lounge room to sleep. There was herself, DH, LH, K, and two other girls. One of them was a baby. SW was not sure who the other one was.
SW told me that she remembers going to sleep. She remembers that the lights were off because everybody was going to sleep as well. She fell asleep. The next thing she remembers was: “waking up to somebody trying to touch my rude part on the outside of my pants, was rubbing my rude part and tried to put his hand in my pants.” She said:
AAs I woke up, I sat up quickly and on the side of the lounge I seen which appeared to be Roy because I remember by the clothes, he quickly laid down on the side of the lounge, so I sat up, like he was trying to hide so I couldn’t see him, like laying against the lounge so I couldn’t see him and then I don’t remember nothing much from there. Just yeah, I remember dozing back off to sleep.
QWhat was it about the person you saw that made it appear to be Roy, what did you see.
AThe clothes, because I recognised his clothes, he always wears the same sort of clothes all the time, it was like he was wearing a chequered T-shirt and skinny tight jeans.
QHow did the clothes on the person that you saw compare to the clothes that Roy had been wearing the night before.
ABecause it was – he was wearing the same clothes that I seen him that day.
QYou told us he was rubbing your rude part, what do you mean
AHe was laying there rubbing my vagina, trying to put his hand down into my pants.
QHow long did he do that before you sat up.
AI’m not too sure, I got woken up by it.
SW told me that the accused “quickly laid down against the lounge that I was on, like on the side of the lounge, so if I look around I couldn’t see him. I seen him quickly lie down and it was right next to me. Practically not even a couple of centimetres away, he was trying to hide and I knew it was him…”. She said that she thought she then fell asleep.
This incident is alleged to constitute the first count on the Information.
SW told me that when she woke up in the morning DH, LH and K were all awake. DH asked all the girls “do any of youse have anything to say?” She said that she “turned around and told her what happened to (her) and she (DH) said that something happened to her as well”. She (SW) said that she had woken up and had seen the accused trying to touch her. She said that they were all scared about it and didn’t want to tell anyone. They were too scared to tell anybody. They decided to keep it a secret, to themselves. They thought that nobody would believe them.
SW told me that she did not tell anybody what had happened until about five or six months, or maybe a year, after the incident in the lounge room. She told her cousin’s girlfriend Belinda. This was Belinda Sarunic. She said she told Belinda about the accused trying to touch her. Belinda asked her “why didn’t we say anything first when it happened?” She said that Belinda rang her uncle and she made them tell him what happened.
SW told me that she saw the accused at her Auntie Dianne’s house “heaps of times”. When asked if there was any particular occasion that stood out, she answered:
“When the police picked me up from my mum’s house after we had an argument they drove me to my auntie’s house to stay for the night, and we were sitting in the lounge room, me and my auntie and me and my auntie just got up. As soon as she walked out of the lounge room door he come walking towards me with the remote in his hand, flicked the TV off, and then he quickly turned it back on. When he turned it back on, his privates bits was in my face, practically near my face.
(There was a discussion between me and counsel later in the trial about whether the third line of this evidence was correctly recorded. That issue was not resolved. I do not consider that it needs to be.)
QWhat did you see.
AHis rude part was hanging out, he pulled his pants down, yeah, I seen his rude part.
QWhat are you referring to when you say ‘his rude part’.
AHis penis and his hair and whatever else that was down below his penis. He tried to flash that in my face.
She then described it in this way:
We were sitting there altogether, me, my Auntie Dianne and Roy. As soon as she walked out, just to go like a few metres away to her bedroom door, he come walking towards me and then he turned the TV off. That is when he turned it back on. I seen his penis and it was right next to my face so it would have been a few centimetres from my face. I just quickly screamed out to my Auntie Dianne and she come running back into the lounge room.
QWhat happened next.
AShe was yelling at him, telling him to get in his room or she will ring the hospital, get him locked away. She was just yelling at him heaps, I think, I am not too sure, but I am not too sure after that, but –
SW told me that the accused had not said anything. She said that the accused was leaning a bit towards her face “trying to like shove it in my face. That is how I felt. He tried to ram it into my face”. She said that she called out to her Auntie Dianne straight away as soon as it happened. Her Auntie Dianne came in and she was yelling at him. She said that her Auntie Dianne told the accused to get into the room. The accused then went into the room in the “laundry part” of the house. She said that she did not have any conversation with her Auntie Dianne and that she was not sure how long her Auntie Dianne remained in the lounge room. She said: “I was sitting there scared with Auntie Dianne”. She said she thought she stayed the night.
SW told me that she knew that the accused lived at that house for a while but she did not know he was living there at that time when the police took her there. She said that she would usually stay at her Auntie Dianne’s house overnight when the police took her there, after which she would go back to her mother’s house.
When asked what the accused’s penis looked like when she saw it, SW replied: “It was quick, but it was like dark and hairy, and yeah, I don’t know. It was quick, because yeah I didn’t really see it that much”.
This incident is alleged to constitute the second count on the Information.
SW told me that she told Belinda about this incident eight months or a year later.
SW told me about an occasion when she went to the house of a friend of the father of DH and LH. She said the friend was Bones Buttery and the house was at Salisbury North or Salisbury. She said Bones Buttery lived there with his wife and his twin children. His wife was Bronwyn Cross. She said that she only went to the house once. She was not sure why she went but she thought it was because DH was staying there.
When asked what happened there, SW replied:
AWe were standing out on the front – near the like, letterbox near the footpath but in the yard. We could hear like a knocking noise and then we all turned our heads, me, DH (and the twins), and we turned out heads and we could hear knock coming from his house and he was at the window with his curtains wide open with his penis showing and he was playing with it, touching it and looking.
SW said that it was the accused who was doing that. She said that it was day-time and the accused was in his window of the house that was joined to the house of Bones Buttery. She and the other children were in the front yard of Bones’ and Bronwyn’s house, near the footpath. The accused was in a window about 10 to 15 metres away. She said she could see him clearly. He had the curtain wide open. She said that they all screamed, Bronwyn came running out and was yelling at the accused, and she told the children to all get inside. That’s what they did.
SW told me that her attention was drawn to the window because the accused was banging on the window and they all looked to see where the knocking was coming from.
SW told me that she was about 14 and a half years old, maybe 15 years old, at the time this occurred.
This incident is alleged to constitute the third count on the information.
SW told me that she did not tell anyone about what she had seen, but she said: “we just screamed out to Bronwyn and I think she told her partner Bones what had happened”. She said that she probably spoke to her mum, but she was not too certain about that.
SW told me that she stopped seeing DH at about the end of 2005 because she was scared of her partner. She said that she stopped spending time with DH about a year before DH passed away. She said that she was about 15 years old when she stopped spending time with DH.
SW first said that she thought that the incident at Bone Buttery’s house occurred whilst she was still spending time with DH. Then she said that she was spending time with DH at the time of that incident. She had also said previously that she thought she went to that house because DH was staying there.
When cross-examined, SW agreed that she thought that the accused was a bit creepy. She said that he was always drunk every time she saw him.
SW was asked about the incident when the girls were asleep in the lounge room at K’s house. She agreed that it happened a long time ago. She said that she was not smoking cannabis that night and she did not have any alcohol that night. She agreed that she did not see the face of the person that touched her on the vagina that night. She said it was not possible that she was having a dream that someone was touching her on the vagina. She said that she woke up and sat up and saw the accused. She said that he was wearing the same clothes that she had seen him wearing that same day. She said that she did not assume it was the accused because she thought he was creepy.
SW was cross-examined about the next morning. She said that LH was maybe thirteen years old or twelve years old at that time. She said that she was not too sure of that, but that they were “heaps young”. She said she does not even remember how old she was. She said that all of the girls discussed it the next morning but that discussion was “not even a minute or so”. They promised to keep it a secret because they were scared that they would get into trouble.
SW agreed that it was fair to say that all the men there the night before were of Aboriginal appearance, but she added, “but they weren’t skinny and tall like” the accused. She said: “I knew what his body looked like and it was him”. This followed:
QI suggest that in fact nobody touched you on your vagina that night.
AWell, it’s true. I know where I stand and I know that happened to me.
QIn fact if you were touched it wasn’t by Mr Wilson it was by someone else.
ANo, it was Roy Wilson.
When cross-examined about the incident which she had described as happening at her Auntie Dianne’s place at 117 Coglin Street, Brompton, SW agreed that it happened very quickly. She said that the room was not dark, it had the light on. She was referring to light from the TV. She said that the accused “stood in front of the TV and he tried to flop it in my face, touch me with it in my face”. She was referring to his penis. She said that his penis was centimetres from her face. When it was suggested to her that it was in fact the remote that she could see in his hand, she answered: “No. It was his penis”. She said: “He went to put it in my face”.
SW said that she did not scream out to her Auntie Dianne that he is flashing me. She just said “Auntie Dianne”, and she came running in straight away.
SW said that she was not sure but she may have smoked cannabis on the night of this incident. She said that she thought she might have smoked cannabis through a water bong. She said that she was not smoking cannabis with the accused. She said that cannabis made her feel relaxed. She said that sometimes she did not remember things that happened the night before when she smoked cannabis. She said that sometimes it affected her memory.
When cross-examined about the incident at the adjoining houses at Combine St, Salisbury North, SW said that she, DH, Bones’ two sons and Bronwyn Cross saw the accused standing in his window. She said that she did not agree that Bronwyn Cross was with them when the accused was standing there in the window, but she came running out when the children sang out to her. She said that Bronwyn Cross was yelling at the accused, swearing at him, and then telling the children to get inside her house. She said that it was not possible, when it was put to her, that the accused was wearing light-coloured jocks. She said that she was not 100% sure that Bronwyn Cross saw it, but she thought she did.
When it was put to her that the accused did not expose his penis during a time when she was at Bones Buttery place, SW responded: “I saw it with my own eyes that he was at the window with his penis showing”.
LH gave evidence. She did so when a one-way screen was between the witness box and the dock. I draw no inference adverse to the accused by virtue of that, and I do not allow that to influence the weight I give to LH’s evidence.
LH told me that she is now twenty-three years of age. She was born on 4 August 1989. That means that she is not quite eight months older than SW.
LH told me that her parents separated when she was about two years old. Since then she has lived with family and friends. She said that she has lived “here, there, and everywhere”.
LH told me that DH was an older sister of hers. She said DH passed away in October 2006.
LH told me that she has known the accused since she was about eight years old. From then she would see him, but not very often. She would only see him if they went to a family member’s house. Some of those houses were Peter Morrison’s and Dianne Wilson’s. She said that she did not have much to do with the accused. When she was really young she called him Uncle Roy.
LH told me that sometimes she had sleepovers at Peter Morrison’s house at Paralowie. She said that there were occasions when she, her sister DH and SW had sleepovers there where K lived. She said that she slept there a few times, but DH and SW were “there mainly all the time”. She said there were times when her sister DH and SW slept over at that house and she was not there.
LH told me that she saw the accused at that house a few times. It was probably about four times. She said that he was present on occasions that she, DH, and SW slept over. She said that she was pretty sure of that. She said that they would sleep mainly in the lounge room when they slept over.
LH told me that she had lived with Wayne Buttery at a house in Salisbury North. It was a house that was joined to another house. The accused lived in the adjoining house. Wayne Buttery lived with Bronwyn Cross and their children. The street was Combine Avenue.
LH told me that she went to live with Wayne Buttery when she was 12 years old. She lived there for less than a year. She went there because she was not getting on with her step-mother. When she was there she saw the accused nearly every day. She said that there was a time when her sister DH came to live at that house as well. That was for about a month or two. She said that SW came to that house at Salisbury North. She said that she came maybe two or three times a week.
LH was asked in cross-examination whether she could distinctly remember the accused being at the Countess Street, Paralowie house at night when she, her sister DH, and SW stayed together for a sleep-over. She answered that she remembered the accused being there but she was not quite sure if it was at night or not.
LH told me during cross-examination that the windows in the front of the two adjoining houses at Combine Street, Salisbury North did not go all the way to the ground. She said that she was “pretty sure” the windows stopped where there was a ledge at about three feet off the ground. When it was suggested to her that the ledge was at about hip height for an adult, LH answered: “Yeah, I can’t really remember that well”.
Peter Morrison is the uncle of SW. He is the brother of her mother, Brenda Williams. He has had six children with Kim Weetra, with whom he was in a relationship for 18 years. One of those children is K whom he said was similar in age to SW. They are within a few months of each other.
Peter Morrison told me that he and Kim Weetra lived at premises at 1 Countess Street, Paralowie between about August 1999 and April 2001. Countess Street was sometimes referred to and is sometimes recorded as Counter Street. I proceed on the basis that the house at 1 Countess Street, Paralowie is the same house as that referred to as Counter Street.
Peter Morrison told me that his daughter K and SW would spend time together at that house. SW would come to their house at Countess Street in Paralowie when they had family gatherings and family get-togethers. She would be there every month or two, and there were plenty of times that she would sleep over there.
Peter Morrison told me that the house at Countess Street, Paralowie was registered to Kim Weetra through Housing SA. The house was in her name. That continued after his relationship with Kim Weetra came to an end and he started another relationship with another woman who moved into the Countess Street house. When that happened his daughter K continued to live with him, but the younger daughter Ki went to live with her mother Kim Weetra.
Peter Morrison is the accused’s first cousin. The accused’s father is the brother of Peter Morrison’s mother. Peter Morrison is also a first cousin of Dianne Young.
Peter Morrison told me that when he was living at 1 Countess Street, Paralowie there were frequent get-togethers at that house. At those get-togethers the adults would drink and “indulge in a bit of drugs”. The children would be in the rooms, doing whatever they were doing, or in the lounge room watching TV. The accused was sometimes at these gatherings.
Peter Morrison told me that there were occasions when SW, DH, LH, and his daughter K would sleep at his house. He said that they usually would sleep in the bedroom but on a couple of occasions when the grown-ups were over, “they would pull the mattresses out in the lounge room and made their beds in the lounge room”.
It is agreed that Kim Weetra was the tenant at 1 Countess Street, Paralowie from 14 August 1999 to 27 April 2001. SW turned eleven years old on 21 March 2001.
Dianne Young is the accused’s sister. She is also Brenda Williams’ first cousin. SW is her niece. Her partner is Frank Lovegrove. She has been in a relationship with him for about 14 years.
Dianne Young told me that she and Frank Lovegrove lived together at a house at 117 Coglin Street, Brompton. They lived there for 14 years. During that time her brother, the accused, lived there for approximately two periods of time. The first time he lived there for nearly two years. She said that the second time “Wasn’t that long. Probably eight months/nine months.” When the accused lived with them he slept in a sleep-out adjoining the back of the house.
Dianne Young told me that during the time that they lived at Coglin Street SW would visit at least twice a month. She would visit alone, and there were occasions when she stayed overnight. She said that quite often SW was brought to her home by the police to stay the night. She said this happened once a fortnight. It started happening when SW was around thirteen years or fourteen years old. She was brought to her home by the police so that she could be cared for by her. She said there were some issues between SW and her mother. She said that when SW slept the night she would sleep in the lounge room.
Dianne Young told me that there was one occasion in the second period that the accused lived there that stands out in her mind. She said that this occurred after her brother lived at Combine Street, Salisbury North. She said that SW had been bashed by her mother and brother, and the police would bring her to her place every time she was bashed. It was always at night.
Dianne Young told me that on this particular occasion the police brought SW to her house at around 10:30 pm or 11:00 pm. She was there with her partner Frank, O (a child of Frank) and the accused. When SW arrived she, Dianne Young, set up a bed for her in the lounge room. Before SW went to bed she saw her in the laundry with the accused. The accused was giving marijuana to her and she saw SW pass a bong back to the accused. She quickly returned to her own bed so that SW could walk past her to go back into the lounge room. She sat in her bed and made out she was reading a book. She saw the accused walk past. She sat in bed and waited. She had “a funny feeling”.
Dianne Young told me that she then heard SW yell out, “Auntie Dianne here this fellow flashing in here”. She threw the book down and ran to the lounge room. Before she got there, and whilst she was in the passage, she “banged into Roy in the passage”. She said “he was making out he was really drunk and staggering and he was doing his fly up against the wall before the entrance of the lounge room door”. She asked him what he was doing and he brushed her off. She described that the accused’s hands were down between his groin and she could see that he was pulling his fly up although he had his back to her. The accused then went straight to his room. She was scared. She then ran into where SW was.
Dianne Young told me that she then saw SW curled up on the lounge in the corner. She said: “Are you all right babe?” SW replied: “Yeah, I am all right Auntie Di. I will tell mum and then tomorrow this fellow is going to get himself a hiding”. She said that SW told her that the accused had “pulled his thing out”. As best as she could remember her words, Dianne Young said that SW had said to her: “He flashed his googie off here Auntie Dianne”. She explained “googie” means penis in Aboriginal.
Dianne Young told me that SW stayed the night but they kept the passage light on and Frank Lovegrove was up watching.
Dianne Young told me that the next day SW left her house but returned about twenty minutes later. She returned with her mother, her now deceased sister P and her other sister L. She opened the front door when the women were banging on it. When they asked “Where is he?”, she just pointed down the passage. They went down the passage to the back and banged on the accused’s door. At first he didn’t answer it. Then he ripped the door off and he “terrified/scared them off, started throwing punches at them.”
Dianne Young told me that SW’s deceased sister P had a lot to say. She was about nineteen years old at that time. She said that shortly after the women “just stormed back out the door the same way they stormed in”. They had not been inside for very long.
Dianne Young told me that this incident occurred before DH passed away.
Under cross-examination Dianne Young agreed that DH had passed away in October 2006. When she was asked whether P had passed away in September of the same year she replied: “That could be interesting, but yes approximately nine months, I don’t know it was so quick, you know, six months she passed away after”. When pressed she agreed that the incident occurred quite close to when P passed away.
When Dianne Young was pressed further about when this incident occurred she said that she remembered giving flowers, a card and a bottle of perfume to SW for her sixteenth birthday. When it was suggested to her that this incident was after she had given SW her sixteenth birthday presents, Dianne Young answered: “Yes. I reckon, yeah. Because I still loved her. She was still my baby niece.”
When re-examined about when this incident occurred, and any relationship its occurrence had to SW’s sixteenth birthday, Dianne Young told me that she took the presents to SW for her sixteenth birthday after the incident with the accused at her house. When asked whether she could give any better indication of time than that, she gave an answer that referred to SW’s birthday being: “say six months later she turned 16 and I took her flowers, a card and perfume”.
Frank Lovegrove is Dianne Young’s partner. He described the accused living at his place “on and off”.
Frank Lovegrove told me that he has known SW since she was a little girl. He said that she would sometimes come and visit at their house at Coglin Street. That would occur sometimes when the accused was staying with them. The police would bring her to their house. He said that he remembers a particular time when SW was brought to Coglin Street when the accused was staying there. He described that occasion in this way:
I remember that Roy – I remember that SW being brought around and she was upset and Dianne calmed her down and she just needed to like, let out her upsetness, whatever was happening over there at her mother’s house, and then Roy – and Roy always used to be a nuisance going back and forward and telling them to go to bed ‘what are you doing up here?’, and SW yelled out ‘Roy’s got his – Aunty Dianne, Roy’s got his googie out and he’s playing with himself’. So by the time that- by the time that I got to the lounge room, Roy was fumbling about and he was like talking saying that ‘She’s bullshitting, she was bullshitting, I don’t know what she’s talking about’. ‘What are you doing?’, and he was like, he just had his back to me and he was like fumbling around with something in his front and pretending that he was drunk, like staggering around but he was like, he was like fumbling around with something. He was doing something in the front area of his body.
Frank Lovegrove told me that he could not see the accused’s hands but he saw his arms down to his elbows. He appeared to be “playing around with the front part of himself”. To him the accused’s hands appeared to be in the area of “his fly and button area of the pants”.
Frank Lovegrove told me that when he heard SW call out he told Dianne Young to get up, it was her brother and she should sort it out.
Frank Lovegrove told me that the next day the family came around. He said that was SW’s mother, SW’s sister P, and there was also someone else. They wanted to speak to the accused. They wanted to bash him. They knocked at the front door and they were all yelling about the accused. They seemed to think that they were hiding him or something like that. He opened the door and P was the first one in. The accused met them in the passageway and he was trying to grab P’s hands because they were trying to fight. There was a lot of yelling, screaming and shouting about the accused. After exchanging “words and things” they said something like “you know we’ll be back” and then they left. He said that it was all over within five or so minutes.
During cross-examination it was put to Frank Lovegrove that the incident when P came to his house was pretty close to the time that she died. He agreed. When asked whether it would have been within two or three months of P dying he said no. He then seemed to refer to P being at his house a few times and coming around on somebody’s birthday when there was a “bit of an argument … about something”. When asked how long it was after the incident that he had described when P came to bash the accused that he heard that P was dead he answered: “I don’t know. About a year, a year ago”. He then referred to an incident where the accused had stirred things up with P and her boyfriend. He then referred to P dying in the same year as the incident when P came to bash the accused. It was then suggested to him that P died only about three months after she came around to get the accused. He was asked whether he agreed with that or disagreed with that, or whether he couldn’t say. He answered: “Well it wasn’t my funeral”.
Brenda Williams is SW’s mother. The accused is Brenda Williams’ first cousin. His father was her mother’s brother. She said that Dianne Young is an older sister to the accused. She said that she and Dianne Young were close.
Brenda Williams told me that her daughter SW was “what you call a run away. She would get into trouble, run away or the police would come and take her away”. She said that SW would have been about 12 or 13 years old when the police started to collect her. They would do that every couple of months. They would take her to her Auntie Dianne’s place at 117 Coglin Street, Brompton.
Brenda Williams told me that SW told her something about the accused. She said that she thought she and SW were living at Farr Street when SW first told her something about the accused. She had said that: “Roy had done something to – I think it was that he flashed himself in front of her at the time, I’m not sure, I have had head injuries so dates and times aren’t sort of –”. She wasn’t really sure that they were living at Farr Street when she was told that. She said she thought that SW was about 10 years old when she first told her that. She was also not sure if SW told her how long it was before she was told that it had happened.
When Brenda Williams was asked whether she did anything when SW told her that, she answered: “I went to Dianne’s to attack Roy with a baseball bat and two of my sons. I took two of my sons with me and went into Dianne’s to attack him”. When asked how long it was after SW had told her that Roy had flashed her that she went to Dianne’s home at Coglin Street, she answered: “The first time she told me I sort of didn’t listen, it was hard to believe, but the Coglin Street, I would have went straight after she told me that he had done something and I took my boys there to get him”.
Brenda Williams told me that when they got to Coglin Street “Frank (Frank Lovegrove) tried to stop me from attacking Roy, he stopped me in the passageway which is only a small passageway because I went in with the baseball bat to bash Roy, and Frank stopped me, Roy tried to attack me, and we were told to leave or they were going to call the police on us, and we were going to wait for him in the street but never got to attack him”.
Brenda Williams told me that she went to Dianne Young’s house because of what both SW and her other daughter, P, had told her. She said that that might have been at a later time than when SW first told her something about Roy. She said that her daughter SW was around 13 years or 14 years old when she, Brenda Williams, went around to Dianne Young’s house to attack Roy. She said that she and her daughter SW were living at Hobb Street, Findon at the time that she went around to Dianne Young’s house to attack Roy. If this is true it must have occurred between 16 June 2001 and 3 December 2004. This is the period that it is agreed that Brenda Williams was the tenant at premises 18 Hobbs Street, Findon. Throughout that period SW was under 15 years of age.
Wayne Buttery is known as Bones. He told me that he was in a relationship with Bronwyn Cross for nearly 10 years. He said that he lived with Bronwyn Cross in a house at 22 Combine Street, Salisbury North. That house was joined onto another house. He said that he lived there between about December 2001 and September 2002. He said that the accused, the accused’s son and the accused’s brother lived in the adjoining house to his. They were already living there when he and Bronwyn Cross moved in. The accused continued to live there after he left.
Wayne Buttery told me that LH lived with them at this house. He thought that she would have lived there a few months. He said that he knew SW but had not known her as long as he had known DH and LH. He said that SW came to his house a couple of times. He said that it was about half a dozen times. He said that SW was at his house at Combine Street when DH was also there about three or four times. He said that at that time SW was a lot younger than DH. He said that SW was maybe nine years or ten years old.
Under cross-examination Wayne Buttery told me that there were two front windows on each of the adjoining houses. He agreed that there was a window ledge on each window and he said that “it would be about right” to say that the window ledge is at about waist height.
Bronwyn Cross was Wayne (“Bones”) Buttery’s partner on and off for six or seven years. They lived with Mr Buttery’s two children in a house at 22 Combine Street, Salisbury North between about December 2001 and about September 2002. The adjoining house was occupied by the accused. She said that she got to know the accused. He was also a relative of some children who used to visit her while she was living in this house.
Bronwyn Cross told me that LH and DH lived at that house quite frequently. She said that SW came to her house at 22 Combine Street, Salisbury North. She said that she came quite frequently with DH and LH.
Bronwyn Cross gave no evidence-in-chief about seeing the accused in his window with his penis exposed.
Under cross-examination this was put to Bronwyn Cross: “you never saw Roy (the accused) expose himself in the window of his house”. She answered: “No. Not myself.” She gave the same answer (at least in part) to the proposition that there was never an occasion where she was with SW that she saw the accused standing in his window exposing his penis.
Belinda Sarunic was in a relationship with Colin Wilson, on and off, for eleven years. During that time she knew the accused Roy Wilson. She said that “he was called Uncle Roy through the family, through Abdul (Colin Wilson’s nickname) and all his family I met”. She said that she also met SW through Abdul’s family. SW was only a little girl then. She said that she did not see SW often but when she did she talked to her. SW was a lot younger than she. It wasn’t like they were good friends but they talked. When SW needed her, she would be there for her.
Belinda Sarunic told me that there were occasions where SW talked to her about something personal. She said the first time SW did that “would have been in 2001”. She said that while she can’t remember all the exact dates, it was when her son was between three months and six months old, and he was born in February 2001. She said that it was therefore within that year that SW spoke to her several times about stuff that had happened “at Roy’s house”.
When Belinda Sarunic was asked what SW said to her on the first time that she spoke to her she replied that she had “come to my doorstep crying and I asked what was wrong and she said that she was at Roy’s and he had asked her and a couple of other girls to smoke some marijuana and he flashed himself to them and so she got scared …”. She said that SW “came running to me and so I let her stay there that night”. She said that when she asked SW if she had told anyone else she said that she hadn’t and “she didn’t want anyone else to know at the time because she was just embarrassed or scared or something”. She said that when this conversation occurred SW would have been “between 12 and 15, I think, from my knowledge”.
Belinda Sarunic told me that there was one or two other occasions when the same sort of thing happened. She said that SW said that she and the other girls would go there and after a few drinks and smoking the accused would “just start getting disgusting and flashing himself and she would get scared and she will come around straight to my house”. She said that SW told her that this happened at the house at “Salisbury North as well”.
Under cross-examination Belinda Sarunic agreed that her estimation of SW’s age of between twelve to fifteen was really just a guess.
Under re-examination Belinda Sarunic told me that she was very certain of her estimate that it was the year 2001 when SW first spoke to her about certain conduct by the accused.
On 1 December 2011 the accused was interviewed by police regarding the allegations made against him by SW. The interview was recorded on video. The video was tendered and is Exhibit P4.
When police put to the accused that it was alleged that when SW was sleeping in the lounge room at a house at 1 Counter Street, Paralowie with some other children she woke up to him touching her vagina, the accused responded: “No, I didn’t do nothing of the sort. … I didn’t even stay there, I don’t even know the address, I wasn’t there.” He said that he did not know that address, or a place at Paralowie. He did say, however, that he did know Peter Morrison and he was told that police thought that the place might have been Peter Morrison’s place.
When police asked the accused whether another girl (a daughter of Peter Morrison) whom he said he knew was at the house as well, the accused stated: “It’s all bullshit, it’s all lying allegations”. He said: “It’s all totally not true”.
Later in the interview the accused repeated that this incident did not occur at all. He then asked police: “Did you say she had, have clothes on or clothes off, or what?” The police officer replied that she had said that she had clothes on. The accused then said: “I don’t know. Nothing occurred”. The police officer then asked the accused whether it would have made any different if the clothes were on or the clothes were off. To this the accused replied: “I don’t know”. When asked whether he could remember touching her clothes at all, he replied: “Nuh, I didn’t touch anything”.
When police told the accused that SW was alleging that he had exposed his penis to her, he said: “No, its all lies”. He said that he knew the house at Coglin Street, Brompton, being his sister’s house. He said that it was “crap” that when the others went to bed at that house he stayed in the lounge room with SW and that they were watching TV. He said that it was “all bullshit” that when the lights were off he then …. He denied that he had turned the light off, moved over in front of SW, took his penis out of his pants and held it in her face about ten centimetres away. He said: “She’s a lying alcoholic bitch”. He said that it was “crap” that Frank Lovegrove and Dianne Young heard SW screaming that night and that they ran to where they saw him fondling with his pants. He said it was a lie that SW immediately told them that he had just exposed his penis to her. He said that Frank, Dianne and SW were all lying. He said that they wanted to “put me in gaol for fuckin’, for lies”.
The accused told police that it was a “lie” that SW saw him pull his pants down and shake his penis from inside the front room at the house where he was living at Salisbury. He said he could not remember SW being there. He said that they were “all false allegations…told by a bunch of lying dogs. They’re a whole heap of druggies”.
The accused later told police that his sister Dianne Young and her boyfriend Frank had already lied against him, and that he supposed the only motive was money.
The accused told police that all the allegations against him were false, and that he was innocent.
There was evidence that DH died on or about 23 October 2006.
Detective Brevet Sergeant Lyons tried on four or five occasions to get a statement from K. She refused to give him one.
The accused did not give evidence. He was legally entitled to refrain from giving evidence. He was not obliged to give evidence and there may have been many reasons as to why he did not do so. It is for the prosecution to prove its case beyond reasonable doubt and I draw no inference from the accused not having given evidence.
What the accused told police on 1 December 2011 is evidence before me which I must and will have regard to. What he said in his interview with police was not on oath and not subject to cross examination. I shall bear that in mind when considering what he told police.
Findings, Conclusions and Verdicts
Before I can find the accused guilty of any of the charges against him I must be satisfied of the truth and of the reliability of the evidence of SW as to the events she described as happening at the Paralowie house, the Brompton house, and the Salisbury North house. If I do not accept her evidence as to what she said the accused did to her or in her presence as truthful and reliable, and if I do not believe and accept it beyond reasonable doubt, then I cannot find the accused guilty of any of the offences charged. SW is therefore a most important witness.
When SW gave evidence at the accused’s trial she was 22 years old. She was giving evidence of some events which she said occurred when she was 10 years or 11 years old. She said that she was about 14 and a half years old, maybe 15 years old, when she said the incident at the Salisbury North house occurred. Each of the incidents that are said to constitute the three counts are said and alleged to have occurred before SW’s 16th birthday. If that is so, then SW was giving evidence about events that all occurred at least six years before she gave evidence.
Because of the matters to which I have just referred, coupled with the fact that SW was a most important witness at the accused’s trial, I consider that I must exercise caution and examine SW’s evidence very carefully before I could be satisfied that I can safely act upon that evidence. I must approach her evidence with particular caution, and I must only act upon it if I am satisfied beyond reasonable doubt that it is credible, truthful and reliable.
Each of the alleged offences are particularised as having occurred between 13 August 1999 and 21 March 2006. This period itself is a significant one, being nearly 7 years. The first date, 13 August 1999, may have been particularised as it is agreed that Kim Weetra was the tenant at the Paralowie house from 14 August 1999 to 27 April 2001. This is the house in which it is alleged that the first count occurred. Although it is not alleged that any other incident involving SW and the accused occurred at the Paralowie house, the date, 13 August 1999, is particularised in each of the other two counts.
The agreed fact that Kim Weetra was the tenant at the Paralowie house until 27 April 2001 is an important fact, at least in respect of the first count. If the incident in that count occurred at all at the Paralowie house it must have been between 14 August 1999 and 27 April 2001. SW turned 11 years of age on 21 March 2001. Therefore, if the incident constituting the first count occurred at all it must have occurred when SW was 10 years old or 11 years old.
There were important agreed facts that relate to the allegation in the third count, which is alleged to have occurred in the Salisbury North house. It is an agreed fact that Bronwyn Cross was the tenant at the Salisbury North house from 22 December 2001 to 27 September 2002. It is also an agreed fact that the accused was the tenant at premises at 24 Combine Street, Salisbury North from 1 April 2001 to 4 July 2003. I find that 24 Combine Street is adjoined to 22 Combine Street. If what SW described the accused doing in his front window at 24 Combine Street occurred at all, and it occurred when Bronwyn Cross was the tenant at 22 Combine Street and was living there with her then partner Bones Buttery, it means that the incident the subject of the third count occurred between 22 December 2001 and 27 September 2002. That is the period that Bronwyn Cross was the tenant at 22 Combine Street and that period is wholly within the period that the accused was the tenant at 24 Combine Street. In the period between 22 December 2001 and 27 September 2002 SW was either 11 years of age or 12 years of age.
By 22 December 2001 Kim Weetra was no longer the tenant at the Paralowie house, having vacated it on 27 April 2001.
The effect of all this is that if I am satisfied that the events the subject of the first and third counts occurred at all, the incident alleged to have occurred at the Paralowie house occurred when SW was 11 years old or less than 11 years old, and the incident alleged to have occurred at the Salisbury North house occurred when SW was either 11 years old or 12 years old. Further, the incident the subject of the first count occurred before the incident the subject of the third count.
I have already indicated that the date range in the particulars in respect of each count is the same, notwithstanding the agreed facts to which I have just referred. There are no agreed facts that might assist in better defining or determining when the incident alleged to constitute the second count occurred. Dianne Young’s evidence was that she and Frank Lovegrove lived together at the Brompton house for 14 years. She also said that the accused lived there for nearly two years in the first period of time he lived there and probably for eight or nine months in the second period. She also said that during the time she and Frank Lovegrove lived at the Brompton house SW would visit at least twice a month.
It was not suggested by Ms Matteo, of counsel for the DPP, that the three counts are in chronological order. She, rightly and properly, could not make such a submission on the evidence. The evidence as to SW’s age at various times, on particular occasions and generally was not given by the witnesses with great confidence. None pretended that they could do so with great confidence, although there was some evidence about when things occurred that I was more confident about relying on than some other evidence. SW’s age at the time that the Brompton house incident occurred (count 2) is particularly important because her age at that time is an element of the offence of gross indecency charged against the accused in the second count. Whilst her age is also an element of the offence of gross indecency charged in the third count there is, as I have indicated above, some objective evidence as to when that likely occurred, if it occurred at all. There is no similar evidence in respect to the second count. I return to this issue later, but I indicate now that I have no regard to the order of counts on the Information against the accused when considering the question of SW’s age at the time that the second count is alleged to have occurred.
I was very impressed with SW and the manner in which she gave her evidence at the trial. She appeared to me to give it in a simple and clear way, and in a way in which I thought disclosed no guile in her at all. She did not appear to me to exaggerate or embellish her account of what she said happened when she was awoken in the lounge room at the Paralowie house, when she was alone with the accused in her Auntie Dianne’s lounge room, and when she was outside of the Salisbury North house in the yard adjacent to the accused’s front window. I considered that if her account of the three incidents about which she gave evidence was true, she gave evidence of such details of them which I would have expected her to recall.
There were certain aspects of SW’s evidence in respect of each of the three incidents which I have approached with particular care and caution. I now highlight a particular part of her evidence in respect of each of the incidents she described as happening at each of the three houses.
As to the incident that is alleged to have occurred at the Paralowie house, SW told me that TN slept over that night with herself, DH, K and two other girls whom she did not know. One of those other girls was a baby and she was not sure who the other one was. DH died in October 2006. K refused to give police a statement. SW told me that LH was with herself and the other girls the next morning when LH’s sister DH told the girls that something had happened between her and the accused as well as happening between SW and the accused. SW had told all girls that she had woken up during the night and had seen the accused trying to touch her. All the girls were scared about it and decided not to tell anyone, to keep it a secret. When LH gave evidence she did not describe anything like that.
As to the incident that is alleged to have occurred at the Brompton house, SW told me that when the accused “flashed” his penis in her face when they were in the lounge room she immediately yelled out to her Auntie Dianne. She said that she did not yell out that the accused was flashing her. She said that all she said was “Auntie Dianne”, and then her Auntie Dianne came running in straight away. The evidence of both Dianne Young and Frank Lovegrove was to the effect that SW had yelled out to the words that the accused had his “googie” out, he was flashing it and was playing with himself.
As to the incident that is alleged to have occurred at the Salisbury North house, SW told me that when she and the other children saw the accused exposing himself in the window of his house they all screamed and Bronwyn Cross came running out and she was yelling at the accused and telling the children to get inside. She said that Bronwyn Cross was yelling at the accused and swearing at him. She said that she thought Bronwyn Cross saw what the accused was doing, although she said that she was not 100% sure that Bronwyn Cross saw it. Bronwyn Cross’s evidence was that she did not see the accused expose himself in the window of his house. She said that there was never an occasion when she was with SW that she, Bronwyn Cross, saw the accused standing in his window exposing his penis.
It is convenient for me here to refer to something that Bronwyn Cross did say in this regard was at the end of her cross-examination. This was put to her:
QThere was never an occasion when you were with SW that you saw Roy standing in his window exposing his penis.
ANot myself, no. The only time that I saw anything like that was maybe when he was sitting in his vehicle and he had his hand in his underpants and I was looking out my window when he would appear.
I consider that the latter part of that answer was given before Bronwyn Cross could be stopped. I do not consider that Bronwyn Cross said what she did to embarrass, or consciously to try to prejudice the accused. I am satisfied that she genuinely believed that her answer was responsive to the question asked of her. In my view, however, the latter part of her answer is irrelevant to my consideration of the evidence and the charges against the accused. That evidence shall play no part in my consideration of my verdicts.
I was impressed with each of the Aboriginal witnesses called by Ms Matteo after SW gave her evidence. Each one of them impressed me as trying as best they could to give honest and reliable answers to the questions asked of them by both Ms Matteo and Mr Richter. I say, with respect to each of these witnesses, that none of them appeared to me to be particularly sophisticated and there were times during the evidence of each that they struggled when giving some of their evidence.
I saw no reason at all to doubt any of what LH told me. I considered her to be an honest and reliable witness. I accept that she did not have much to do with the accused although she would see him from time to time and call him Uncle Roy.
Peter Morrison’s evidence was not particularly controversial, but it was important because he described frequent get-togethers at the Paralowie house where the adults would drink and take drugs, and where the children would be inside the house and sometimes sleep over, either in bedrooms or in the lounge room. He said that the accused would sometimes be there and that the children would include SW, DH, LH, and his daughter K. He said they would sleep on mattresses in the lounge room and make their beds there.
I was particularly impressed with Dianne Young and Frank Lovegrove and with the evidence that each gave. I considered that Dianne Young was the most forthright witness of the Aboriginal witnesses who gave evidence. I wondered, when she was giving her evidence, whether she was embellishing some of it, or at least that part of it concerning the accused’s involvement in the incident involving SW at the Brompton house, because I wondered whether she was not particularly well-disposed towards her brother. It may well be that that feeling of mine was completely unjustified and it was never suggested to her that she disliked her brother or was ill-disposed towards him. The accused himself told police that his sister Dianne Young wanted to put him in gaol, but that was not put to her during her evidence. There was some hint from Dianne Young that she would have preferred her brother not to be living at her house and that she could not get rid of him, but there is no suggestion that Dianne Young reported her brother’s alleged conduct involving SW to police or anyone, so there is nothing to suggest that she made up her evidence to try to get rid of her brother from her house or to “put (him) in gaol”.
I also thought during Dianne Young’s evidence that she was not particularly well-disposed towards SW’s mother, either as a person or as a mother. There is no suggestion or hint that Dianne Young ever resented that SW was brought to her place to be cared for by her. I got the strong impression that Dianne Young took her responsibilities as a carer for SW when she was brought to her house, likely in stress and distress, very seriously until SW returned to her own mother’s house. I also got the strong impression that SW was very dear to Dianne Young. I thought Dianne Young’s evidence was credible and reliable.
Frank Lovegrove was a very quiet and unassuming man whom I thought, with respect to him, would struggle when he started his evidence to get his evidence out in any structured or convincing way. In the event, however, his simple, straight-forward account of what he said happened that night at his house was convincing and compelling. I was impressed by the simplicity by which Frank Lovegrove told me that he heard SW yell out “Roy’s got his googie out and he is playing with himself”; that when he heard this he told Dianne Young to get up, it was her brother and she should sort it out; that when he got to the lounge room the accused was fumbling around with something at the front of his body and pretending to be drunk; and that the accused was saying “she’s bullshitting, she’s bullshitting”.
It was not suggested to Frank Lovegrove that none of this happened, notwithstanding that the accused told police that Frank Lovegrove and Dianne Young were part of a “bunch of lying dogs” and “druggies” who were making false allegations, and wanted to put him in gaol.
It is convenient for me here to refer to something else the accused said to police. Before he told the police that the only motive he could think for why people would be lying about the alleged incident at the Brompton house was money, he said to police that his sister and her boyfriend Frank had “already lied against me with the son to get me locked up in the first place”. For the purpose of considering my verdicts in this matter I ignore what the accused there said. That answer was not relied upon, or even referred to, by either counsel at the accused’s trial. No one was questioned about it. It shall play no part in my consideration of my verdicts.
Brenda Williams gave her evidence reasonably confidently and clearly. Notwithstanding that, I consider she was the least reliable of all the Aboriginal witnesses on matters of importance. I consider that she was truthful and reliable when she said that SW told her that the accused had done something to her and that he “flashed himself in front of her”. However, Brenda Williams’ memory of the detail of that, when it occurred, how old her daughter was when she alleged it occurred and when she was told is not reliable.
Brenda Williams’ evidence in relation to the occasion that she went to the Brompton house to confront the accused is generally consistent with the evidence of Dianne Young and Frank Lovegrove. Brenda Williams’ evidence, coupled with that of Dianne Young and Frank Lovegrove, convinces me that SW complained to her mother about the accused “flashing” her the night before at her Auntie Dianne’s place. As a direct result of that Brenda Williams went to the house where she was told the accused was to confront him, even to attack him. I consider that Brenda Williams is mistaken when she said she took her two sons with her. I am satisfied and find that she took two of her other daughters with her, one of whom was her daughter P.
I am satisfied and find that what happened that morning was as described to me by Dianne Young and Frank Lovegrove. Where those two witnesses differ as to the detail I prefer Dianne Young’s account of the details. I consider that Dianne Young and Frank Lovegrove were honest and reliable witnesses.
Belinda Sarunic gave her evidence in a straight-forward way and I am satisfied that SW told Belinda Sarunic that the accused had “flashed’ her and that she told her that happened on a couple of occasions. I am not satisfied of Belinda Sarunic’s evidence that SW would go straight around to her house when that happened. I am satisfied that it was some time later that SW told Belinda Sarunic about the accused “flashing”. I am satisfied and find that SW told Belinda Sarunic about the incident at the Paralowie house several months after it occurred, and that she did not tell Belinda Sarunic that that was an incident involving the accused flashing her with his penis. I am satisfied and find that SW told Belinda Sarunic that the accused touched her when she was sleeping in the lounge at the Paralowie house.
Belinda Sarunic’s evidence was to the effect that SW first told her about something the accused did to her when her own son was aged between 3 months and 6 months. I am satisfied and find that that son was born in February 2001. I am satisfied that Belinda Sarunic would know when her son was born. Belinda Sarunic relied upon that combination of evidence (the month and year her son was born and the fact that it was when her son was between three and six months old) to say when SW first told her something about the accused. I consider that evidence, and the reason for it, is convincing. February 2001 is not long before Kim Weetra ceased to be a tenant at the Paralowie house (27 April 2001). I am satisfied and find that SW told Belinda Sarunic for the first time about the conduct of the accused within the year 2001, but some months after the incident at the Paralowie house. I am satisfied and find that on this occasion SW spoke to her concerned the incident at the Paralowie house. I am satisfied and find that SW also told Belinda Sarunic about the two occasions when the accused “flashed” her. I consider that Belinda Sarunic’s evidence that SW told her about the “flashing” incident happening at the house at “Salisbury North as well” is reliable and convincing.
I am not satisfied that Belinda Sarunic’s evidence that bears upon how old SW was when any of the incidents the subject of this trial occurred is evidence upon which I can rely to make findings in respect of SW’s age at various time, particularly regarding the times that the alleged incidents in each of the counts occurred.
I received and viewed the audio-visual record of the interview of the accused by police on 1 December 2011. I referred to some aspects of that interview when I dealt with the evidence at trial. It would be unfair of me to be too critical of those responses of the accused in circumstances where police visited him in prison and later put certain allegations to him alleged to have occurred at least four years before and probably longer.
When asked by police about the incident that is alleged to have occurred at the house of Dianne Young and Frank Lovegrove at Brompton the accused’s response was that SW was “a lying alcoholic bitch” and that it was “crap” that Frank Lovegrove and Dianne Young heard SW screaming that night and that they ran to where they saw him, the accused, fondling with his pants. He said that Frank, Dianne and SW were all liars. This was not put to either Frank Lovegrove, Dianne Young or SW. I take into account that this was not put to any of those three witnesses, but do not draw an inference adverse to the accused by virtue of what he said about those three witnesses when police interviewed him.
I do take into account that the accused denied each of the incidents the subject of the charges against him.
I bear in mind that the accused’s interview with police was not under oath and not subject to cross examination.
In this case there has been a lengthy period between the alleged offending and the trial. That delay has resulted in a forensic disadvantage to the accused. That disadvantage includes the fact that SW and others were attempting to remember details of conversations, events and where and when they were at certain places that occurred several years ago. I take that forensic disadvantage into account when scrutinising the evidence for the prosecution, particularly the evidence of SW.
I also take it into account when assessing what the accused told police. I also take account of the fact that the accused was then relatively suddenly confronted with allegations that were at least four years old.
In this case the accused suggested to police that Dianne Young, Frank Lovegrove and SW had a motive to lie and make false allegations against him. That motive was money.
I consider the possibility of a motive for them to lie and for SW, in particular, to lie. It is relevant to her credibility. However, even if I reject the alleged motive to lie that does not mean that I should, or that I will, find SW has been truthful. The absence of evidence of such a motive does not strengthen the prosecution case. It is neutral, as lies can be told for no apparent reason. It is not for the accused to provide a motive for SW to lie and at all times the Crown bears the onus of proof of these charges beyond reasonable doubt.
In this case there was evidence of complaints led by the prosecution. That evidence was from Belinda Sarunic who said that SW told her about the conduct of the accused towards her. It also seems, and I find, that SW told her mother that the accused has “flashed” himself in front of her at sometime, probably shortly after the incident described by SW, Dianne Young and Frank Lovegrove as having occurred at the Brompton house. I do not consider SW’s evidence that she told other girls the next morning about what she said happened the previous night in the lounge room at the Paralowie house to be a complaint by SW in the sense the law considers such a complaint.
I heard the evidence of complaints as it was evidence as to how the allegations first came to light and is evidence of the consistency of conduct of SW, or the inconsistency of her conduct. I cannot, and do not, use that evidence as evidence of the truth of what SW said that the accused did to her and in her presence. For that I rely on SW’s evidence. There may be varied reasons why an alleged victim of a sexual offence has made a complaint of an offence at a particular time or to a particular person.
It is for me to determine the significance (if any) of the complaint evidence in the circumstances in this case.
I consider that the complaint evidence here is of no weight when I come to consider the first count. I consider that evidence is of very little weight when I come to consider the third count. I consider its significance is so small as to discount it in respect of the third count.
I consider that what I find that SW said to Dianne Young, after Dianne Young told the accused to go to his room, is significant as it shows consistency of conduct by SW. I find that SW said to her Auntie Dianne in the lounge room that the accused had “flashed his googie off here Auntie Dianne”. This is consistent with SW yelling out to her Auntie Dianne, “Auntie Dianne here this fellow flashing in here” just before her Auntie Dianne went towards the lounge room, ran into the accused in the passage making out he was drunk and doing his fly up against the wall.
I return to the evidence of SW to which I referred earlier where there appears to be some inconsistency between her evidence and the evidence of others.
As to the first count there was the evidence of SW that LH was at the Paralowie house on the night she said the accused touched her in the area of her vagina on the top of her pants, and that LH was there the next morning when the girls spoke about that incident.
LH said that there were occasions when she, her sister DH and SW had sleepovers at that house where K lived. She said that she slept there a few times, but DH and SW were “there mainly all the time”. She said that there were times when her sister DH and SW slept over at that house and when she, LH, was not there. SW did not give evidence of LH saying anything that morning. I am satisfied that SW was mistaken when she said that LH slept there that night and was there the next morning when the girls spoke about what they said had happened during the night. I am satisfied that SW assumed LH was there because she was DH’s sister and the two sisters and herself were often together. I am satisfied that DH and SW slept over where K lived more often than LH did. I am satisfied that SW believed that LH was there that night and the next morning but I am satisfied that she was mistaken in that belief.
As to the second count there was the evidence of Dianne Young and Frank Lovegrove to the effect that SW yelled out to them that the accused was “flashing” her in the lounge room. SW said that she didn’t yell out that, she just yelled out “Auntie Dianne”. I am satisfied that SW did yell out to Dianne Young and that she used the words described by Dianne Young. I am satisfied and find, relying on Dianne Young’s evidence, that SW yelled out “Auntie Dianne here this fellow flashing in here”. I am satisfied and find that SW told her Auntie Dianne when she spoke to her shortly after her aunt had sent the accused to his room that “he flashed his googie off here Auntie Dianne”. I am satisfied that SW has forgotten that she has yelled out to her Auntie Dianne before her Auntie Dianne came into the lounge room.
As to the third count there was the evidence that could be said to be to the effect that SW said that Bronwyn Cross saw the accused “flashing” his penis behind the front window of his house at Combine Street. I am satisfied that SW thought that Bronwyn Cross had seen that. I am satisfied that she assumed that rather than seeing it. I am satisfied that she assumed that because Bronwyn Cross told the children to get inside. SW said in her evidence that she thought Bronwyn Cross saw the accused although she was not 100% sure. I am satisfied that Bronwyn Cross did not see the accused and that SW mistakenly thought that she did.
The fact that I have found that SW was mistaken about three not insignificant details in her evidence are matters that I must carefully consider when assessing the overall credibility and reliability of SW, particularly in relation to the three incidents the subject of the charges. At the time the events to which she was referring in her evidence occurred she was, at least in respect of those events alleged in counts one and three, no more than 12 years of age. In respect of those events alleged in count two it is unlikely that SW was more than 17 years old. The incidents the subject of the three counts, if they occurred as described by SW, must have been traumatic for her when they occurred. They would have been even more traumatic for a young girl whose life generally was somewhat traumatic. Indeed, the second count occurred on a night police had taken SW from her own mother’s house to her Auntie Dianne’s house for her to be cared for.
None of the evidence to which I have just referred, separately or in combination, causes me to have any reasonable doubt about relying on the evidence SW gave in respect of each of the three counts, when she told me of what the accused did to her. I am satisfied beyond reasonable doubt and find that what she described as having happened to her on each of the three occasions constituting the three counts was true, accurate and reliable.
As to the first count I am satisfied beyond reasonable doubt of each of the elements of the crime of indecent assault. I am satisfied beyond reasonable doubt and find that it was the accused who put his hand on top of SW pants over her vagina and rubbed her vagina over her clothes whilst she slept in the lounge room with other girls. In being so satisfied I have exercised considerable caution regarding SW’s evidence that it was the accused who touched her that night. I have done so particularly because SW told me that she did not see the face of the person who touched her. I acknowledge that it is easy for an honest witness to make a mistaken identification, and experience has shown that miscarriages of justice have occurred as a result. Witnesses can be mistaken even though quite sure of their identifications and a witness who is sure can be a convincing witness. A considerable danger thereby exists. I acknowledge that SW would not have had the person who touched her under observation for very long. The person was, however, right next to her, and she had seen the accused before on a number of occasions, including earlier that night. She gave evidence of a special reason why she identified that person as the accused. She referred to the clothing that he had been wearing the day before as being the same as the clothing of the person who touched her and then sought immediately to hide from her. She also referred to the fact that the other Aboriginal men at the party that day and evening were not “skinny and tall” like the accused. She said: “I knew what (the accused’s) body looked like and it was him”. When it was put to her that someone else touched her she responded: “No, it was Roy Wilson”. SW’s evidence was that she had not smoked cannabis that night and she did not have any alcohol that night. I accept that evidence.
Whilst acknowledging the dangers attendant upon acting on identification evidence of the type that SW gave here, I am satisfied beyond reasonable doubt about the correctness of SW’s identification of the accused as the person who touched her that night in the Paralowie house.
I am also satisfied beyond reasonable doubt that what the accused did to her constituted an assault, that it was an intentional touching and rubbing, that it was unlawful and that it was committed by the accused in circumstances which I am satisfied and find were indecent. I am also satisfied that at the time the accused did this to SW, she was either 10 years of age or 11 years of age.
As to the second count I am satisfied beyond reasonable doubt that on a night when SW had been taken to her Auntie Dianne’s place at Brompton by police for care the accused, when alone with SW in the lounge room, “switched off” the light emitted by the TV using the remote control, that when the light was off he undid the fly of his pants and took his penis out of his pants, that he then activated the television again such that it emitted light and that he then waved his penis in SW’s face when it was only centimetres away from it. I am satisfied and find that when that occurred SW yelled out to her Auntie Dianne that the accused had flashed his penis at her in the lounge room. I am satisfied and find that when Dianne Young and Frank Lovegrove approached the lounge room both saw the accused stumbling, pretending to be drunk, and doing up the fly of his pants. I am satisfied and find that the accused said to Frank Lovegrove at that time that he didn’t know what SW was talking about and that she was “bullshitting”.
On the basis of these findings, I would find the accused guilty of the second count if I am satisfied beyond reasonable doubt that at the time the accused exposed his penis and waved it in SW’s face at the Brompton house SW had not yet turned 16 years of age. I would find him guilty of the second count because I am satisfied that he did that in SW’s presence, the act he did was indecent in the circumstances (even if SW was aged 18 years), and that his indecent act of putting “his (naked) private bits in (her) face” such that they were a few centimetres from (her) fact was gross, by any measure.
Dianne Young’s evidence was that police started bringing SW to her house when SW was around 13 years or 14 years old. When that happened SW would sleep the night in the lounge room. She said that this incident occurred on one of the occasions police brought SW to her house. She said that this incident occurred before DH passed away. She agreed that DH had passed away in October 2006, and that is the fact. Dianne Young was asked by Mr Richter whether SW’s sister P had passed away in September of the same year. Her reply included a comment that “that could be interesting”. She added “yes approximately nine months, I don’t know it was so quick, you know, six months she passed away after”. Dianne Young said that the incident at her house occurred quite close to when P passed away.
There was also Dianne Young’s evidence about when she gave SW her 16th birthday presents. In cross-examination she said she “reckoned” that the incident occurred after she had given SW her 16th birthday presents. When she said that she immediately added: “Because I still loved her, she was still my baby niece.” When re-examined Dianne Young told me that she took SW’s 16th birthday presents to her after the incident with the accused. When she was asked whether she could give a better indication of time than that she said: “say six months later she turned 16 and I took flowers, a card and perfume”.
Frank Lovegrove was asked in cross-examination about the timing of the incident at his house at Brompton and, in particular, its relationship to the death of P. He referred to P dying in the same year as the incident when P came to bash the accused. He said, however, that it was not within two or three months of P dying. He then seemed to refer to another incident when there was an argument on somebody’s birthday, and he referred to P coming around to bash the accused about a year before he heard that P was dead.
I am satisfied that Dianne Young did not understand the question that was put to her which she answered by saying that she “reckoned” she had given SW her 16th birthday presents before the incident at her house involving the accused. What she said immediately after saying “Yes. I reckon …” does not make sense unless she thought she was saying that the incident occurred before SW’s 16th birthday. Her reference to SW still being her “baby niece” only makes sense in that light. I was convinced that in re-examination Dianne Young understood clearly what was being asked of her, and that she then, truthfully and reliably, told me that she took presents to SW for her 16th birthday after the incident with the accused at her house. I am satisfied that Dianne Young’s evidence was that SW’s 16th birthday was about six months after the incident with the accused at her house.
I am satisfied beyond reasonable doubt and find that the incident the subject of the second count occurred in about September 2005. At that time SW was 15 years of age, and therefore under the age of 16 years.
Accordingly, I am satisfied beyond reasonable doubt that all the elements of the crime of gross indecency charged against the accused in the second count have been proved beyond reasonable doubt.
As to the third count I am satisfied beyond reasonable doubt of each of the elements of the crime of gross indecency charged in this count. I am satisfied beyond reasonable doubt that the accused exposed his penis through the front window of his house when some children, including SW, were in the front yard of the house adjacent to his. I am satisfied beyond reasonable doubt that when he did that he was touching his penis and playing with it whilst looking at the children, including SW. I am satisfied beyond reasonable doubt that he did those things with the intention that the children, including SW, would see his exposed penis and what he was doing with it. I am satisfied beyond reasonable doubt that when he did that the children, including SW, were in his presence for the purpose of proving one element of this charge of gross indecency. Although it is not necessary to prove that any child saw his penis and what he was doing with it through the window, or that any child was aware of it, I am satisfied and find that the accused intended the children, including SW, to see his penis and what he was doing and that SW saw it. I am satisfied beyond reasonable doubt that the exposure of his penis by the accused, and what the accused did with it, was directed towards the children, including SW. I am satisfied beyond reasonable doubt that this act by the accused was indecent and that it was grossly indecent.
I am satisfied beyond reasonable doubt that when this incident occurred SW was either 11 years or 12 years old, and thereby was under the age of 16 years.
Accordingly, I am satisfied beyond reasonable doubt that all the elements of the crime of gross indecency charged against the accused in the third count have been proved beyond reasonable doubt.
I would find the accused guilty of all three counts.
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