R v WINKLES - [2012] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WINKLES
Criminal Trial by Judge Alone
[2012] SADC 27
Reasons for the Verdict of His Honour Judge Clayton
13 March 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with Persistent Sexual Exploitation of a Child and in the alternative one count of Indecent Assault.
Verdict: Guilty of Persistent Sexual Exploitation of a Child.
Criminal Law Consolidation Act 1935 s 50, s 50(4)(b), Div 11; Evidence Act 1929 s 34M, referred to.
R v M, BJ [2011] SASCFC 50; R v N, SH [2010] SASCFC 74, considered.

R v WINKLES
[2012] SADC 27

The accused is charged first with the offence of Persistent Sexual Exploitation of a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 and secondly with the offence of Indecent Assault. Count 2 is an alternative. He elected for trial by judge alone.
Count 1 alleges that the accused "over a period of not less than three days between 1 November 1982 and 1 May 1983 at Waikerie, Tanunda and other places in the State of South Australia committed more than one act of sexual exploitation of (the complainant) who was a person under the age of 17 years, by rubbing his penis against the body of (the complainant) and by causing (the complainant) to rub his penis against his body".
Count 2 alleges a single indecent assault at Tanunda between 1 November 1982 and 1 May 1983 against the complainant who was aged 14 or 15.
At the relevant time the accused was a truck driver residing at Waikerie.
In 1982 the complainant was a schoolboy residing with his parents at Crystal Brook. As a result of an approach from either the complainant or his family in 1982 the complainant moved from Crystal Brook to Waikerie to live with the accused. There is a dispute as to the precise circumstances giving rise to the move but it is unnecessary for me to resolve that dispute. The complainant never returned to school and in 1983 found employment in the Riverland.
When he moved to Waikerie the complainant was 14 years of age. He turned 15 on 27 January 1983. He was either 14 or 15 years of age at the time of the alleged offending.
The acts which give rise to count 1 are alleged to have occurred at three locations, first the home of the accused at Waikerie, secondly in a caravan on the property of relatives of the accused in Tanunda and thirdly in the sleeping cab of the accused’s prime mover at various different locations.
The first relevant event allegedly occurred on an occasion when the complainant had accompanied the accused on a trip in his truck. The two of them slept together in the cab or sleeping area of the truck. In length that area extended across the full width of the truck and it was about 1 m wide. The accused allegedly asked the complainant if he could rub his penis against the complainant and the complainant agreed. The accused then rubbed his penis on the stomach of the complainant until the accused ejaculated.
The complainant said that on that trip the accused attempted to kiss him but the complainant resisted and the accused never attempted to kiss him again.
The complainant gave evidence that the accused repeated the behaviour, that is rubbing his penis against the complainant in the truck, on many, perhaps about 12, other occasions.
The complainant also alleges similar acts occurred in a sleepout where the complainant slept at the home of the accused at Waikerie. It is alleged that offending acts occurred at Waikerie 15 to 20 times.
The third location where offending conduct is alleged to have occurred was in a caravan in the rear yard at the home of a relative of the accused at Tanunda. The acts at Tanunda allegedly followed the same pattern.
Count 2 refers to one particular occasion in the caravan at Tanunda when the conduct of the accused is alleged to have followed the usual course with the accused rubbing his penis against the complainant and then the accused started to rub the penis of the complainant until it was hard and the tip of the complainant's penis was placed against the anus of the accused. Before penetration occurred the accused stopped what he was doing and asked the complainant whether he was sure that he wanted to go through with the act, the complainant said no, the accused did not continue and there was no anal penetration.
Section 50 of the Criminal Law Consolidation Act 1935 provides:
50—Persistent sexual exploitation of a child
(1) A adult person who, over a period of not less than three days, commits more than one act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
…
(2) For the purpose of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
…
(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)subject to this subsection, the information must allege with sufficient particularity -
(i)   the period during which the acts of sexual exploitation allegedly occurred; and
(ii.) the alleged conduct comprising the acts of sexual exploitation;
(b)the information must allege a course of conduct consisting of acts of sexual exploitation but need not -
(i)   allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(jj) identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c)the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person -
(i)   in relation to the child who is allegedly the subject of the offence against this section; and
(ii.) during the period which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
(5) A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6) This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
For present purposes the prescribed age is 17 years. There is no issue as to the age of the complainant.
"Sexual offence" is defined to mean an offence against Div 11 of the Criminal Law Consolidation Act 1935, other than certain sections which are identified. Division 11 includes the offence of indecent assault which is created by s 56 and the offence of gross indecency which is created by s 58. They are not excluded offences.
The prosecution must prove more than one act of sexual exploitation over a period of not less than three days. That is the Crown must prove at least two acts of sexual exploitation.
Subsection 50(4)(b) relieves the Crown from the need to allege the degree of particularity of each act that would be required if that act were charged as an offence or to identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred. In R v M, BJ Vanstone J, with whom Sulan and White JJ agreed, said that subs 50(4) is concerned with the framing of a charge against the section and cannot derogate from s 50(1).[1] The Crown must prove that at least two acts of sexual exploitation over a period of not less than three days. Vanstone J said:
In my view it follows from the clear wording of s 50(1) and (2) that the actus reus of the offence is more than one act of sexual exploitation of a particular child committed over a period of not less than three days. Therefore, the jury must agree that the accused person committed the same two or more acts of sexual exploitation before convicting...
[1] [2011] SASCFC 50 para 70.
I note that in R v N, SH a differently constituted court had decided that s 50 of the Criminal Law Consolidation Act "clearly contemplates a course of conduct as distinct from particular specific acts being proved beyond reasonable doubt".[2]
[2] [2010] SASCFC 74 para 11.
On trial by judge alone the difficulties which might exist in identifying the findings of different jurors as to the particular acts they relied upon in reaching their decision do not arise. I proceed on the basis that I must identify at least two specific acts of sexual exploitation.
If I was to find the accused guilty of count one the accused could not be convicted of a sexual offence against the complainant alleged to have been committed during the period during which the accused was alleged to have committed the offence of consistent sexual exploitation of the complainant.[3] That is the accused could not be convicted of count 2. In her opening the prosecutor acknowledged that count 2 was in the alternative.
[3] s 50(5).
The accused gave evidence. He was not required to do that. I must give him credit for the fact that he gave evidence and exposed himself to cross‑examination. I must treat his evidence in the same way that I would treat the evidence of any other witness.
The evidence of the accused contained a denial of the acts asserted by the complainant. In addition to denying the complainant's allegations he gave evidence of other sexual activities which were quite different from those described by the complainant.
This is a case of oath against oath. My role is not simply to determine whether I prefer the evidence of one witness to that of the other.
If I thought that the evidence of the accused was possibly correct that would give rise to a doubt about the evidence of the complainant and I should enter a verdict of not guilty. Mr Stokes who represented the accused pointed out that the accused was giving evidence about events alleged to have taken place about 28 or 29 years ago and that the events had not been raised with the accused by the police for some 24 or 25 years. It was not until 2008 that he was required to recall the events.
If I completely rejected the evidence of the accused that would not mean that I must enter a verdict of guilty. In order to convict the accused I must be satisfied that the Crown has proved each of the essential elements of the alleged offence beyond reasonable doubt.
For reasons which I will explain later I do not accept the evidence of the accused.
The evidence of the complainant is unsupported. There is no corroboration, although corroboration is unnecessary. The question for me is whether the evidence presented by the Crown establishes the alleged offences beyond reasonable doubt.
The first complaint that the accused made to any other person of the alleged offending was to a friend, Mr Kuchel, in April 2008. Mr Kuchel gave evidence of what the complainant said to him which I accept without reservation.
The Evidence of the Complainant
The complainant said that when he first went to live with the accused he went with the accused on every truck trip. That was once or twice a week. On overnight trips the accused and the complainant slept in the cab in the front of the truck. When they were asleep the accused and the complainant just wore a pair of jocks, although sometimes they were naked.[4]
[4] T28.
The complainant described the first incident in the following terms:
…When I first slept in there I took the position of head to toe sleeping, I believed that would happen. I was told it was just uncomfortable so to turn around and sleep together and then, sorry, he started to play with me and to tell me what he was doing, what we was to do would be better than having a wank, in other words, pulling yourself, be masturbating, whatever you want to call it. That's about it. It was disgusting. It used to happen on his f… belly making out he was having sex with me, it was f… gross, sorry, sorry, sorry. If it was only - if it was only any good part of this it was over, it wouldn't last that long, it was still shit, it was horrible, it really was.[5]
[5] T28.
The complainant said that it happened in the truck from the very first trip and that it happened "Quite often" and "In the truck, you wouldn't get change out of 15, 20 times".[6]
[6] T28.
The complainant said that the accused tried to kiss him but the complainant pulled away "and then other things would happen".[7] He said that the accused fondled his penis.[8]
[7] T29.
[8] T29 l34.
The complainant said that somehow the accused encouraged him onto the belly of the accused "and just started rubbing like you were going to have sex". He said the accused held him "close to him and thrust (with his penis), like you would thrust having sex". He said the accused "just had no control and he ejaculated on me three times".[9]
[9] T30 l20.
The complainant gave evidence that the same thing happened in the house at Waikerie. As time went on the complainant forced himself to ejaculate because he was scared.[10] The complainant could not give an exact number of the times that happened but said "you wouldn't get any change out of 15, 20 times I reckon".
[10] T32.
The complainant gave evidence that they stayed overnight in the caravan at Tanunda on five or six occasions. He said that sexual contact of the same kind as that which he described having at Waikerie occurred every night they stayed at Tanunda.[11]
[11] T37.
He described one occasion when something different happened at Tanunda. This is the act which gives rise to count 2. The complainant said that they were naked and both erect and the complainant held his penis as if he was going to have sex with him and the accused asked "Did I really want to?" The complainant said "I just realised what I was doing was absolutely f.... stupid, and it didn't happen, so he never did have anal sex with me…". He said that initially the accused held his penis but in the end the complainant held the penis of the accused.[12] They then continued in a similar way as before.
[12] T38.
The complainant gave evidence that all sexual activity between the two of them came to an end when he "just refused" to participate. After the complainant said "No" he never had sexual contact with the accused again.[13]
[13] T42.
The complainant continued to live at Waikerie until September or October 1983 when he returned to his parents’ home in Crystal Brook.
At the time of the alleged offending the complainant never told anybody about what the accused had done to him because he was “so embarrassed, so ashamed".[14]
[14] T43.
The first person the complainant did tell was Mr Kuchel over the telephone. He immediately went to Cowell and spent three days with Mr Kuchel where he "just come out with things from time to time".[15] Mr Kuchel never questioned him or pushed him but just let the complainant come out with information as it came to mind. The complainant slowly unburdened himself and described the alleged offending. He said "I told of the sexual abuse, the extremity of it. How far it went, who it was with, where it was, how often it was, I don't think I held anything back from him".[16] After that he went to the police.
[15] T46.
[16] T47.
The conversation with Mr Kuchel extended over three days. The complainant said nothing was prompted by Mr Kuchel but:
… it was up to me to come out with, so in my own time, based on the energy I would come up with whatever or whatever, and then I would just take it easy, for however long, half an hour, 20 minutes, an hour, two hours, maybe the next day. I don't know. And then conversation come up again… At his place, in the car travelling together wherever we went. Maybe we went to go and get a packet of cigarettes, would have spoke doing that. Would have spoke while he went to his business and done a little bit of flipping around there. There was, you know, like the conversations started and stopped hundred million times, you know, he wasn't prompting me to come up with, it was up to me to spill the beans as I felt I could.[17]
[17] T50.
The complainant said that he let Mr Kuchel know that he had been sexually abused and that was starting to play with him and that he "wanted to do something physical that was really out of the ordinary for me".[18] Mr Kuchel did not ask him but told him to go to Cowell.[19]
[18] T51 to 52.
[19] T51.
The first complaint should not be restricted to the actual telephone call. I think the telephone call and the discussions over the following days which followed on and elaborated on the phone call should all be treated as the first complaint.
Mr Stokes identified inconsistencies between the recollection of Mr Kuchel as to what the complainant told him and the evidence of the complainant to the court. The inconsistencies are relatively minor. Because of the time between the alleged offending and the complainant’s discussion with Mr Kuchel I do not regard any inconsistency between Mr Kuchel’s recollection of what the complainant told him on that occasion and the evidence of the complainant to the court as being of any significance. It is not insignificant that the complainant related the story to Mr Kuchel in dribs and drabs over about three days, that Mr Kuchel made no notes and when Mr Kuchel spoke to the police officer he had to rely on his recollection of what must have been a lengthy and disjointed story.
Specifically, it is, in my opinion, not important that the complainant made no complaint to Mr Kuchel about the specific events alleged to give rise to count two. The circumstances in which the complainant spoke to Mr Kuchel were not intended to produce an accurate narration or chronology of the offending. On the evidence of Mr Kuchel the complainant was in a distressed state and the complainant was unburdening himself of something which had been disturbing him for a long time.
The underlying feature of the complainant’s approach to Mr Kuchel was that the complainant was concerned that his distress might cause the complainant to take matters into his own hands and take physical action.
The nature of the defence criticism is that the complainant omitted to mention some details to Mr Kuchel, rather than the events which the complainant did relate were incorrect. In my opinion any omission between the evidence of the complainant to the court and what he told Mr Kuchel over the two to three days the two men spent together does not provide any reason to doubt the evidence of the complainant.
Even if there was good reason to reject some of the evidence of the complainant I could still accept and act upon the balance of the evidence.
I think this is a case where the evidence of the first complaint is of less significance than it might be in other cases. The complaint must be interpreted in the context of s 34M of the Evidence Act 1929. The delay in making the complaint is of itself of no probative value in relation to the complainant's credibility or consistency of conduct. The complaint was admitted into evidence to inform the court as to how the complainant's allegation first came to light. The complaint can be evidence of the consistency of conduct, or inconsistency of conduct of the complainant, but is not truth of what was alleged.
I take into account that there may be varied reasons why the complainant made the complaint at a particular time or to a particular person. Otherwise it is for me to determine the significance (if any) of the evidence of the first complaint in the circumstances of the case.

In my opinion the core evidence of the complainant has been consistent. I accept the submission of the prosecutor that there is no significant inconsistency.
If I accepted the evidence of the complainant beyond reasonable doubt there would be evidence of at least two acts of sexual exploitation of the complainant committed over a period of not less than three days. The first alleged act at each of the three locations would be sufficient to establish the offence charged.
The question for me to determine is whether there is reason to doubt the evidence of the complainant.
The Evidence of the Accused
The accused acknowledged that he and the complainant had slept together in the confined space of the cabin of his truck, that they had slept together on his bed at Waikerie and that at least on one occasion they had both slept on the sole bed in the caravan at Tanunda. The accused also acknowledged that he had ejaculated during wet dreams while he was sleeping with the complainant and that on one occasion the complainant had ejaculated while on the bed of the accused.
There was therefore opportunity for the alleged offending.
However the accused gave evidence that he never had any sexual contact with the complainant.[20] He also gave evidence of events which were quite different from those described by the complainant.
[20] T141.
The prosecutor submitted that the evidence of the accused "at times was absurd and bordering on fantasy". I do not accept the evidence of the accused. He was not an impressive witness. His demeanour did not inspire confidence in his credibility. The story which he told was not a believable one.
There are passages in his evidence, to which I refer below, from which it can be inferred that he was making up the story as he went along. I will not attempt a complete catalogue of the examples, but I will refer to the evidence of the accused about the events in the caravan at the time of the Vintage Festival, his evidence about having wet dreams whilst sleeping with the complainant and his evidence on the topic of whether the complainant teased the accused about wet dreams.[21]
The evidence of the accused of an event in the caravan at Tanunda at the time of the Vintage Festival
[21] T163, 164 l17, 181 l31, 181 l38.
It is common ground that the complainant and the accused both slept in the only bed in a caravan at Tanunda on the occasion of a Vintage Festival. I have referred to the evidence of the complainant as to his version of what occurred on that occasion. The accused gave evidence of a quite different incident. In evidence-in-chief he said:
I woke up in the morning and he was sitting on top of me. He could interpret that. I rolled him off on the side and went and had breakfast. I invited him to come and have breakfast but he declined.[22]
[22] T141.
When cross-examined about the incident the accused said "… I woke up in the morning and he was sitting on top of me. He might have been slapping my face, trying to wake me up, I don't know, I don't know, but, yeah". The cross‑examination continued:
QWas he slapping your face.
ANo, I don't think so. I don't know. I just - I woke up in the morning, he was on the top there, I rolled him off to the side and said "Look, I'm going to have breakfast", because I had work that day.
QWhat part of his body was connecting with your body.
AHis backside was sitting on my belly and he was looking at me.[23]
[23] T175.
I followed up the statement that the complainant may have been slapping his face. The accused gave the following evidence:
QA moment ago you said he may have been slapping your face.
AYes.
QWhy would you say that.
AWell, I thought he might have been trying to wake me up. Maybe he was worried that I had flaked out or died, I don't know.
QWas he slapping your face.
ANo. I don't think he was, no.
QWhy do you say that he may have been slapping your face.
AWell, I was trying to work out why he was sitting on top of me.[24]
[24] T175 to 176.
The topic was revisited once more in cross-examination when the following evidence was given:
QYou also made reference on Friday to him slapping your face.
AYes, I thought he was but I could be mistaken. I’m not going to say that he did or did not. That's what I thought he was doing because I was in a waking stage.
QDo you have a memory of that.
AI remember him sitting up on me and I thought he was slapping my face but, as I said, I can't be absolute - I'm not going to accuse him of slapping my face.
QWhy do you say you thought he was slapping your face, is that because you have a memory of it.
AWell, I thought it - I can't be positive on that particular fact.
QIs the reason you can't be positive because you just made up this entire episode.
AI wouldn't be sitting here telling you if I made it up. I'm sitting here telling you what I recall.[25]
[25] T187 to 188.
There was no reason for the complainant to slap the face of the accused. Nor was there any reason for the complainant to be sitting on top of the accused. On the evidence of the accused there had not been any prior sexual relationship between them and there were no other circumstances which might provide an explanation for the complainant sitting on top of the accused or slapping his face.
Every time the accused was asked about the topic he gave a different answer. First, the accused said that the complainant might have been slapping his face, then he said he didn't think he was, then he said the complainant might have been trying to wake him up, then he repeated that he did not think the complainant was slapping his face, then he said he thought the complainant was slapping his face but that he may have been mistaken.
When he was finally asked why he said the complainant may have been slapping his face the accused said he was trying to work out why the complainant was sitting on top of him. That statement was illogical and was not an answer to the question at all.
When the evidence of face slapping is looked at in its entirety it would seem that that there was no foundation for the evidence which the accused initially volunteered that the complainant might have been slapping his face. If the accused had no memory of the complainant slapping his face there is an inference that the accused must have invented that part of his story as he was giving his evidence.
Those passages of evidence provide insight into the evidence of the accused generally. If the accused did not know whether the complainant was slapping him on his face why did the accused volunteer the evidence that the complainant might have been doing that?
Was the complainant wearing clothing in bed in the caravan at Tanunda
The accused was asked whether the complainant was wearing clothes at the time of the Vintage Festival incident. The following exchange took place:
QDid he have any clothes on.
AI presume so. I didn't look.
QDid you feel any clothes on him.
ANo. I didn't feel anything. I didn't think. There was nothing to think about, sorry.
QHere is this young man sitting on you, on your belly, right there. You must have noticed that he had underpants on.
AAll I noticed was that I needed to get up and go to the toilet and then I was interested in eating. I wasn't interested in anything else.[26]
[26] T175.
The topic was taken up later when the following exchange occurred:
QYou couldn't assist us as to whether he was wearing underwear or clothing.
ANo, I can't remember.
QAgain, I put to you you've got a young man sitting on your torso when you wake up, you'd notice whether he had clothing on.
ANot necessarily, no. I looked at his face. I don't look at his middle area, I look at his face. That's what I seen when I woke up.
QI don't want to be critical about it but you couldn't miss it, he's right there on your torso.
AAs I said, I didn't look at his torso, I looked at his face and grabbed his shoulders and rolled him over. That's what I told you.[27]
[27] T187.
I find it difficult to believe that if an incident such as that described by the accused did occur the accused would not have known whether the complainant was wearing clothing or not.
Wet dreams/teasing
The accused was asked in examination-in-chief whether there was ever an occasion when either of them ejaculated in the presence of the other. He gave the following evidence:
ANo, but I'm sure if it was a wet dream, you know, that's what I would say is normal, within the briefs.
QWhat was that incident.
AI'm just saying that I probably had wet dream from time to time and - but it was within the briefs. It was certainly not sexually orientated.[28]
[28] T143.
In cross-examination the accused was invited to tell the court about his wet dreams and he said:
AWell, when you’re sleeping together and that, I don't know, it's been a normal thing for me from time to time, you wake up and your briefs are wet and this time it was a wet dream. I thought everyone done it.[29]
[29] T163.
I note in passing his reference to "when you're sleeping together".
The accused said he remembered two or three times which he found embarrassing. He also said "I definitely was not sexually attracted to that long stalk" and "Very tall lanky guy was not attractive to me… I was not attracted to his body in any way or form".[30]
[30] T163.
He was asked in cross-examination whether the complainant said anything to him about having a wet dream in the same cabin as the complainant and gave the following evidence:
QDid he ever say anything to you about that.
AI think he teased me about it once or twice.
QYou think he did or he did.
ASomething I kept in my mind, something that is not important to me so no, I don't remember it.[31]
[31] T164.
When the court resumed after a weekend break the cross-examiner returned to the topic of the complainant teasing the accused and the following exchange took place:
QDid he tease you or didn't he.
AWell, I thought he teased me about it but it could have been something else. As I say, I really cannot - I don't remember precisely whether it was about that factor or whether maybe he teased me about something else. I don't know. I can't really go into those details because I don't know.
QHere you are, a grown man, ejaculated right next to if not on top of a 14-year-old boy, you're embarrassed about it, surely you'd remember if he teased you about it after the event.
ANot specifically, no. I can only say I don't because I simply don't.
QWhy did you tell us last week that you did remember that he teased you.
AHe teased me but I don't know what exactly the subject was precisely. I'm sorry, I can't go to that.
QIn fact, let remind you. What you said at p 164 was this, I suggest, and I will go back to put it into context. You answer this question "Anyway, so two or three times you would wake up, realising that you’ve had a wet dream in that same cabin as (the complainant). A. Yes, that's what I said. Q. Did he ever say anything to you about that. A. I think he teased me about it once or twice. Q. You think he did or he did. A. Something I kept in my mind, something that is not important to me so, no, I don't remember it." You agree that was your evidence on Friday.
AIt sounds like it, yes.
QSo one minute he did tease you once or twice and then you don't know, you don't remember.
AWell, when I said he teased me, he teased me and I probably denied it.[32]
[32] T181 to 182.
That is another passage of evidence which is full of inconsistencies and contradictions.
The evidence of the accused that the complainant ejaculated in the bed of the accused
The accused was asked in evidence-in-chief whether the complainant ever ejaculated when they were in bed together and answered:
Once in the later time when he stayed in my bed, in the main bedroom in the house, and at that stage I felt it and wiped it off, rolled him over and told him that that was the last time he should stay in the bed with me. That's why he was in the room next door, which from then I always encouraged, in fact I went to his room and talked to him at any time, and yes, it was a learning process.[33]
[33] T143.
When asked why the complainant would go into his room he said:
I felt at the time on many occasions, he needed just to talk, and the times he was in my bedroom was simply because I went to bed, I was tired, I often went off to sleep. The times that he was in my bed was usually - always when I come home from a trip, I was very tired, so I would actually go to bed. He would lay there and talk, or at times we used to wrestle together a bit, and then I would go off to sleep, and he either stayed there or went back to his own bedroom.[34]
[34] T143.
The accused was cross-examined as to why the incident when the complainant ejaculated while the complainant was asleep resulted in the accused banishing the complainant from his bed, but the accused did nothing as a result of himself having wet dreams. His answers on that topic illustrate the unsatisfactory nature of his evidence further.
The evidence of the accused as to the nature of the relationship
The accused gave evidence that he did not have a sexual interest in the complainant.[35] Nor did he have any sexual contact with him. He said:
… my interest was in seeing him get ahead. The sad part about it is I always dreamed we would grow up, have kids together, and would see each other on a long-term basis. I feel I wasted my time.[36]
[35] T144 and 150.
[36] T150.
The curious nature of that evidence speaks for itself.
The evidence of the accused that the complainant invited intercourse
The accused gave the following evidence-in-chief of another particular incident:
… I went to his room, talking to him sitting on his bed, and I can't remember what we were talking about, but I turned away while I was talking, like I do, and then when I turned back, he had rolled his legs over his back and his bare arse was looking at me. He said "Come on, do it". After the shock, I slapped him on the arse, slapped him on the backside and told him that it would just end our friendship if we ever entered into something like that. I later tried to talk to him about it, and he got pretty angry, so the topic was dropped.[37]
[37] T144.
The complainant denied that such an event ever occurred.
That the 14 or 15 year-old complainant would behave in that way towards the 27-year-old accused, in the absence of any prior sexual relationship, is something which I cannot accept.
Conclusions
When looked at in its entirety the evidence of the accused was illogical and just does not ring true. His demeanour was not that of a truthful witness.
The accused gave evidence that the complainant attempted to initiate sexual activity on the occasion when the complainant displayed his anus to the accused in the bed at Waikerie and also when the complainant was sitting on top of the accused in the caravan at the time of the Vintage Festival.
Given the nature of their relationship and their respective ages I cannot accept the evidence of the accused that the 15-year-old complainant would have initiated those events, particularly given the evidence of the accused that there has been no sexual contact.
Just because I have decided that I cannot rely upon the evidence of the accused does not mean that I must act upon the evidence of the complainant. I must consider whether the evidence proves the ingredients of the alleged offence beyond reasonable doubt.
The accused acknowledged that the two of them had slept together in the cabin of the truck, although he limited it to half a dozen times.[38] He also acknowledged that the complainant had slept in his bed at Waikerie and that the two of them had slept in the same bed at Tanunda.
[38] T161.
The evidence establishes the opportunity for the alleged offending acts to have taken place. The question is whether the Crown has proved beyond reasonable doubt that the acts which are complained of did take place.
The statement of Mr Kuchel explains the circumstances in which the alleged offending came to light. Those circumstances are consistent with the complainant wanting to unburden himself of something which had been weighing on his mind, but the statement is not corroboration.
Because of the delay I must scrutinise the evidence of the complainant carefully.
I have considered whether the accused is at a forensic disadvantage. Because of the nature of the evidence that he gave himself it is hard to see how the accused may have suffered a forensic disadvantage, but the difficulty with cases such as this is that one can never know in what way an accused may have been disadvantaged.
I accept the submission of the prosecutor that the complainant was "an unvarnished, unpolished witness who said it exactly as he saw it and exactly as he thought it". I accept the submission that because of his manner and demeanour he was a compelling witness. He was in many ways an unusual and colourful witness but he gave no reason to doubt the veracity of his evidence. He did resort to colourful language but gave his answers in a straightforward way.
The complainant impressed me as a witness of truth. His demeanour was that of a truthful witness. Cross-examination did not give rise to any reason to doubt either his truthfulness or reliability. After close scrutiny I accept his evidence without reservation.
If the complainant had wanted to give evidence which was more critical of the accused it would have been an easy thing for the complainant to do. For example his evidence with respect to count 2 that the accused asked "Are you sure you want to take this the next step", that the complainant declined and the accused did not proceed further is not the sort of story that one would make up. As the prosecutor submitted a person fabricating the evidence could easily have said that there had been anal penetration. I also accept the prosecutor's submission that the evidence of circumstances in which the offending came to an end has the ring of truth.
The acts of sexual exploitation described by the complainant were acts which if particularised could be the subject of a sexual offence. The acts could be the subject of the charge of indecent assault. There was a touching in circumstances of indecency. Consent on the part of the complainant is irrelevant because of his age.
The evidence of the complainant establishes the Crown case as to count 1 beyond reasonable doubt.
Count 2 is an alternative charge. Having decided that the prosecution has proved count one beyond reasonable doubt there is no need for me to consider the alternative charge in count 2.
For these reasons there will be a verdict on count one of guilty.