The State of Western Australia v Amb - [2021] WADC 75

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- AMB [2021] WADC 75
CORAM:   GOETZE DCJ
HEARD:   19-22 & 26 JULY 2021
DELIVERED          :   30 JULY 2021
FILE NO/S:   IND 179 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
AMB

Catchwords:

Criminal trial by judge alone - Allegations of intra-familial sexual offending - Turns on own facts

Legislation:

Criminal Code
Evidence Act 1906 (WA)

Result:

Counts 1 - 7: Guilty

Representation:

Counsel:

The State of Western Australia	:	Ms K A Gregory
Accused	:	Ms K A Heslop

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Sarah Oliver

Case(s) referred to in decision(s):

Dann v The State of Western Australia [2021] WASCA 15
Longman v The Queen (1989) 168 CLR 79
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

GOETZE DCJ:

The accused stands charged with seven offences of a sexual nature against the complainant, his second biological son. At the time of the alleged offending, the complainant was variously aged between 7 and 11 years. He is now 38 years old.
The prosecution alleges that the accused also engaged in other conduct of a sexual nature concerning the complainant, but which conduct is not the subject of any charge.
The State relies upon admissions allegedly made in 2015 by the accused to the complainant.
Further, the State also relies upon any conviction on any of the seven counts in the indictment as being cross‑admissible in consideration of other counts on the indictment.
The accused has pleaded not guilty to each count. He denied the alleged offending.
As will be seen below, the real issue in this trial is whether the alleged offending occurred.

Trial by judge alone

Pursuant to an order made under s 118 of Criminal Procedure Act 2004 (WA) on 15 April 2021 by her Honour the Chief Judge, the trial of these seven charges against the accused was ordered to be by judge alone, without a jury.
Sections 119 and 120 of the Criminal Procedure Act relate to trials by judge alone. They provide as follows:
119.Law and procedure to be applied
(1)In a trial by a judge alone, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.
(2)In a trial by a judge alone, the judge may view a place or thing.
(3)If any written or other law -
(a)requires information or a warning or instruction to be given to the jury in certain circumstances; or
(b)prohibits a warning from being given to a jury in certain circumstances,
the judge in a trial by a judge alone must take the requirement or prohibition into account if those circumstances arise in the course of the trial.
120.Judge's verdict and judgment
(1)In a trial by a judge alone -
(a)the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
(b)any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
(2)The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
(3)The validity of a trial judge's judgment is not affected by a failure to comply with subsection (2).

Principles of law

Before proceeding further, it is appropriate to note the following principles of law to be applied in this case:
1.The accused is presumed to be innocent of each of the charges brought against him.
2.The burden of proving each charge is on the State of Western Australia.
3.The State must prove each charge beyond reasonable doubt. If there is a reasonable doubt as to whether the accused is guilty of one or more of the charges, then, it is my duty to acquit him on such charge or charges upon which I have such a reasonable doubt.
4.The accused does not have to prove anything.
5.The accused gave evidence during the trial. He did not have to give evidence. Because of the presumption of innocence that applies to everyone who stands trial, he was quite at liberty not to give evidence. However, the fact that he chose to give evidence does not in any way detract from the important principles of our system of law that:
(a)the burden is on the State to prove each of the charges that it has presented; and
(b)the accused is presumed to be innocent until the charges against him have been proved beyond reasonable doubt.
6.Even if I do not believe the accused in his evidence, then I cannot find an issue against him contrary to his evidence if his evidence, or any other evidence for that matter, has given rise to a reasonable doubt on that issue.
The question for me to consider on each charge is whether, from all the evidence given in this trial, the State has proved each of these charges against the accused beyond reasonable doubt. If the accused's evidence, or any other evidence, has given rise to a reasonable doubt, then he is entitled to the benefit of that doubt and I cannot convict him on any count on which that reasonable doubt has risen.
Further, even if I do not accept the accused's evidence and reject his evidence, it does not follow automatically that he should be convicted of the offences with which he has been charged.
Further still, even if I do not accept the accused's evidence and reject his evidence, I should simply pay no further regard to his evidence. The question will then remain and is whether, on the evidence that I do accept, the State has proved its case beyond reasonable doubt on each of the counts in the indictment.
7.There are seven offences with which the accused has been charged in this trial. As a result, there could have been seven separate trials, but these are each separate charges and each charge must be determined separately, based on the evidence relevant to each charge.
Although some of the evidence is common to some or all of the counts in the indictment, it does not follow that if the accused is guilty of one count, he is necessarily guilty of another count.
I cannot find the accused guilty of an offence with which he has been charged unless evidence that he committed that charge satisfies me beyond reasonable doubt that he did commit that offence. This, of course, applies to each offence.
I may find the accused guilty of all charges, not guilty of all charges or guilty of some and not guilty of others. These are matters to be determined on the evidence.
However, one thing that I must not do is draw an inference against the accused or make any conclusion against him or be prejudiced against him because there is more than one charge.
8.I am able to accept part of the evidence of a witness, but disregard part of the evidence of that same witness.
9.This is a criminal trial. I must determine it solely on the evidence before me. I must not speculate about matters which are not in evidence. Further, what counsel has said is not evidence. I must assess the case dispassionately and objectively and not decide the case on some prejudice, or on sympathy.
10.The State must negate any defence raised by the accused. As already noted, the accused does not have to prove anything. Here, the accused does not have to prove any motive for the complainant to lie or that he has recently invented his complaints against the accused.
11.I put to one side any evidence given in this trial relating the possibility that one or other or both of the complainant's two brothers, who are now both deceased, may have been a victim of sexual offending by the accused.

Directions of law

There are four further directions of law which will be required in this matter relating to:
1.The complainant's motive to lie by way of recent invention of these allegations of sexual abuse.
2.The failure of the complainant to complain about the alleged offending.
3.This trial now being some 30 years after the alleged offending resulting in a forensic disadvantage to the accused requiring what is referred to as a Longman direction following Longman v The Queen (1989) 168 CLR 79.
4.Relationship evidence concerning other sexual conduct alleged by the complainant against the accused.
I will deal with these directions when covering the evidence relating to them.

The indictment

The indictment details seven counts of alleged sexual offending by the accused.
The alleged offending can be conveniently grouped into three distinct occasions.

Counts 1, 2 and 3 - The shoes from Thailand incident

Counts 1, 2 and 3 on the indictment read as follows:
1.On a date unknown in 1991 at Bassendean, [the accused] unlawfully and indecently dealt with [the complainant], a person under the age of 16 years, by touching the penis of [the complainant].
2.On the same date and at the same place as in count (1), [the accused] unlawfully and indecently dealt with [the complainant], a person under the age of 16 years, by rubbing his penis between the buttocks of [the complainant].
3.On the same date and at the same place as in count (1), [the accused] had unlawful carnal knowledge of [the complainant], a child under the age of 13 years.

Counts 4 and 5 - The communion incident

Counts 4 and 5 read as follows:
4.On a date unknown in October 1992 at Bassendean, [the accused] indecently dealt with [the complainant], a child who he then knew to be his lineal relative, by touching the penis of [the complainant]
And that [the complainant] was a child under the age of 16 years.
5.On the same date and at the same place as in count (4), [the accused] indecently dealt with [the complainant], a child whom he then knew to be his lineal relative, by rubbing his penis between the buttocks of [the complainant]
And that [the complainant] was a child under the age of 16 years.

Counts 6 and 7 - The disco incident

Counts 6 and 7 read as follows:
6.On a date unknown in 1994 at Bassendean, [the accused] indecently dealt with [the complainant], a child whom he then knew to be his lineal relative, by touching the penis of [the complainant]
And that [the complainant] was a child under the age of 16 years.
7.On the same date and at the same place as count (6), [the accused] sexually penetrated [the complainant], a child whom he then knew to be his lineal relative, by penetrating the anus of [the complainant] with his penis
And that [the complainant] was a child under the age of 16 years.

Elements of the offence - indecent dealing

Counts 1, 2, 4, 5 and 6 relate to indecent dealings.
Counts 1 and 2 relate to dealings as then prescribed by s 189(1) of the Criminal Code 1991.
Counts 4, 5 and 6 relate to dealings as then prescribed by s 329(4) of the amended Criminal Code as it applied to 1992 and 1994.
There are two differences between the 1991 and 1992/1994 elements of the alleged indecent dealing offences. In 1989, two elements of the offence were that the dealing was unlawful and that the complainant was a person under the age of 16 years, whereas under s 329(4) there is no reference to a dealing being unlawful and the age factor is provided by way of a circumstance of aggravation. Accordingly, the State is required to prove the following on these counts:
1.First, that the offender was the accused - that is, that the accused is the person whom the State alleges did the things that constitute the alleged offending and not some other person. In this matter, identity is not in issue.
2.The State must prove that the accused dealt with the complainant. This is the real issue on all counts alleging an indecent dealing ie the accused denies any dealing by him with the complainant as alleged in each of these counts.
Any physical contact can amount to a dealing. Touching the penis of the complainant as specified in counts 1, 4 and 6, and rubbing a penis between the buttocks of a complainant specified in counts 2 and 5 involve physical contact and which can therefore amount to a dealing.
The touching or the rubbing must be a willed act, rather than something which may be accidental.
In this case, I am required to determine if the State has proved beyond reasonable doubt that a deliberate touching or rubbing occurred in counts 1, 2, 4, 5 and 6 as alleged by the complainant.
3.Thirdly, the State must prove that each of these dealings were indecent. Something is indecent if it is unbecoming to common propriety or offensive to common propriety. It is a value judgment which is to be considered on the alleged facts. It can now be found that if such dealings occurred as alleged, then each of those dealings amounts to an indecent act given the sexual character of the alleged offending and the parties between whom they are alleged to have occurred in light of all the circumstances to be set out below, and against which such indecency must be judged by community standards.
4.Fourthly, but only on counts 1 and 2, it is necessary for the State to prove beyond reasonable doubt that the dealing alleged in each count was unlawful. The term unlawful is not defined in s 1 of the then Criminal Code or under ch XXII thereof. It therefore has its ordinary meaning, such that the dealing is unlawful if it is against the law and is not authorised, justified or excused by law. It can now be found that, if dealings as alleged occurred, then such were unlawful.
5.Further, as an element of the offence in counts 1 and 2, and as a circumstance of aggravation in counts 4, 5 and 6, the State must prove the complainant was under the age of 16 years at the time of each count. It is not disputed on these counts that the complainant was under 16 years of age, his date of birth being 14 July 1983. He was therefore 7 years of age turning 8 in 1991, as set out in counts 1 and 2. On the facts to be revealed below, he was 9 years of age as set out in counts 4 and 5. Further, he was 10 years of age turning 11 in 1994, as set out in count 6.
6.Further still, on counts 4, 5 and 6, the State must also prove that the complainant is a lineal relative of the accused.
By s 329(11) of the Criminal Code, it shall be presumed in the absence of evidence to the contrary that the accused was lineally related to the complainant. There is no evidence to the contrary and so the presumption applies.
7.Finally, the State must prove that the accused knew that the complainant was his lineal child. It was conceded by the accused that the complainant was his lineal relative and that he knew that the complainant was his lineal child. It can therefore now be readily found that the required proof of the lineal relationship and knowledge thereof has been established.
Therefore, the sole issue on each of counts 1, 2, 4, 5 and 6 is whether the accused dealt with the complainant in the manner particularised in each count.

Elements of the offence - Unlawful carnal knowledge

Count 3 alleges that the accused had unlawful carnal knowledge of the complainant, a child under the age of 13 years. It is therefore necessary for the State to prove:
1.That the offender was the accused.
2.That the complainant was a child under the age of 13 years.
3.That the accused had carnal knowledge of the complainant. The term carnal knowledge is not defined in the Criminal Code and is therefore to be given its ordinary meaning of full or partial sexual intercourse. In this case, it means full or partial penetration of the complainant's anus by the accused with his penis.
4.That such carnal knowledge was unlawful with a term 'unlawful' having the same meaning as set out above at [20.4].
Ejaculation is not necessary for there to be carnal knowledge.

Elements of the offence - Sexual penetration

On count 7, the relevant version of the Criminal Code provides that the elements of sexual penetration as follows:
1.That the offender was the accused.
2.That the complainant was a child.
3.That the complainant was a lineal relative of the accused.
4.That the accused knew that the complainant was his lineal relative. This can be now found to be proved as set out at [20.7] above.
5.That the accused sexually penetrated the complainant.
Sexual penetration can take many forms. On count 7, the requirement is for the State to prove beyond reasonable doubt that the accused sexually penetrated the complainant as particularised by the accused penetrating the anus of the complainant with his penis.
The anus is the posterior opening of the abdominal canal through which excrements are ejected. The word anus is used in a non‑technical manner.
Ejaculation is not necessary for there to be sexual penetration.
Finally, the State must prove the circumstance of aggravation that the complainant was under the age of 16 years.
All elements of the offences within counts 3 and 7 are either not disputed or accepted by the accused, save for the fact of the alleged sexual penetration.
Accordingly, on count 3, the issue is whether the accused had carnal knowledge of the complainant and on count 7, the issue is whether he sexually penetrated the complainant.

Chronology

Before outlining the State and defence cases, it is appropriate to set forth a chronology of events which does not appear to be in dispute.
1.The birthdates of the complainant and his siblings:
(a)N (sister) date of birth - 20.6.1976;
(b)M (brother) date of birth - 15.12.1977;
(c)J (sister) date of birth - 12.1.1980;
(d)complainant date of birth - 14.7.1983.
2.Separation of accused and his wife - June 1987.
3.Resumption of cohabitation of accused and wife ‑ July 1988.
4.Birth to complainant's mother of his half‑brother C ‑ 27.3.1988.
5.Second and final separation of accused and wife ‑ November 1990.
6.Accused's trip to England, including stopovers both ways in Thailand ‑ 16.9.1991 ‑ 8.11.1991. Relevant to counts 1, 2 and 3.
7.Complainant's confirmation ‑ October 1992. Relevant to counts 4 and 5.
8.School discos on Fridays in 2014 ‑ 18.3.2014 ‑ 18 March, 17 June, 12 August and 25 November. Relevant to counts 6 and 7.
9.Accused's relationship with S ‑ 1994 ‑ 1996.
10.Family moved from Eden Hill to South Guildford ‑ 2000.
11.C's suicide ‑ between 5 and 8 November 2011.
12.Complainant's disclosure to partner of accused's alleged offending against him ‑ 2012.
13.Further disclosure to complainant's partner upon the occasion of his thirtieth birthday and decision to spread C's ashes ‑ 14.7.2013.
14.Further disclosure of alleged offending by accused against complainant to friend RH between 2013 and about 20.8.2016.
15.Suicide of M ‑ about 20.8.2016.
16.Complainant's meeting with a counsellor‑ 2015.
17.Complainant's meeting with accused at Houghton Park ‑ 2015.
18.Complainant's first child's date of birth - 6.9.2015.
19.Complainant's move to New Zealand ‑ 2016.
20.Complainant's first police interview ‑ 28.9.2017 (video).
21.Complainant's police statement ‑ 4.10.2018 (written).
22.Pretext call from complainant to accused ‑ 2018.

The State case

The State relies on the three distinct episodes of alleged offending outlined above, together with evidence relating to some uncharged acts, admissions allegedly made by the accused to the complainant, and the cross‑admissibility of proof of any of the counts in the indictment when considering another count in the indictment. The State case of the three episodes is most conveniently expressed in terms of the complainant's evidence.

The shoes from Thailand incident

The complainant's evidence was that the accused said he would buy him shoes whilst he was away in Thailand. On the Saturday prior to travelling on 16 September 1991, the accused told the complainant that he had been good and that he would get the shoes. To this end, the accused sat the complainant on the accused's double bed in his bedroom and traced the complainant's footprint to ensure that he purchased the correct sized shoe.
The complainant then had to lie down and have a sleep.
They lay on their right sides, with the complainant curled up in a foetal position. The accused then began to pat the complainant's genitalia and he started to masturbate himself and the complainant (count 1). The accused then put his penis between the complainant's 'bum cheeks' (count 2). He then put his penis into the complainant's anus. The complainant felt the warm feeling of the accused ejaculating (count 3).

The communion incident

The complainant's evidence was that he celebrated his first Holy Communion at a local church following which a gathering was held at the family home. The complainant received gifts, including cash.
On the Saturday following this communion, the complainant requested the accused to take him to the Belmont shops to buy something with the money he had received from his communion. The accused told the complainant that before they could go to the shops, they needed to have a sleep. The accused would not give him the money until he had had this sleep.
They again lay down on the accused's bed with the accused telling him that he was 'a good boy'. He also said 'now go to sleep', 'go to Nostraland', that he loved him and that they would go and spend his money later. He then began to massage the complainant's body, including fondling his penis (count 4). The accused was wearing a lungi or sarong.
The accused then removed the complainant's clothing and oiled his own body. He then began to rub his erect penis between the complainant's buttocks, pushing forward and backwards (count 5). The complainant's evidence-in-chief was that this act was a penile penetration of his anus. He said that the accused ejaculated, which he described as feeling like warm diarrhoea, which the accused wiped away.

The disco incident

It is not disputed that when the complainant was in Year 6 at his local primary school, there were discos held at the school on a Friday night in each of March, June, August and November 1994. The complainant recalls attending one of these discos which finished at about 9.00 pm following which, the accused collected him from the school in his car and drove to a hotel near their house. The accused went inside leaving the complainant to sleep in the car. The accused then returned and drove to one of his brothers' home and subsequently, they returned to their own home. The accused carried the complainant from the car inside the house and placed him on the accused's bed.
The evidence of the complainant was that both he and the accused showered before getting onto the accused's bed. The accused rubbed oil onto himself and the complainant, then removed the complainant's clothing and touched the complainant's penis with his hand (count 6).
Following this, the complainant said the accused penetrated the complainant's anus with his erect penis, causing stinging to the complainant. The accused did this until he ejaculated. The accused and the complainant then slept (count 7).

Other evidence of sexual offending

The complainant did not tell anybody about the offending during the period in which it was occurring. However, before, during and after this same period, the general relationship between him and the accused was that there was additional contact of a sexual nature beyond the charged offences.
The complainant described waking up with the accused next to him, fondling him. He also sucked the complainant's penis and tried to rub his penis into the complainant's face. This happened from as young as he could remember until he was about 11 years old.
The State relies upon this continuing contact as common law relationship evidence explaining why the accused was confident in being able to offend as he did on the occasions he did and why the complainant now has some difficulty in particularising the counts given the volume of the charged and uncharged acts committed against him. There was no challenge to this evidence being led pursuant to the authority of Dann v The State of Western Australia [2021] WASCA 15 [40], [41], [48] and [56].

Cross-admissibility

The State also relied on cross‑admissibility on the basis that any count on the indictment which is proven beyond reasonable doubt should be cross‑admissible in relation to other counts yet to be considered in relation to other counts on the same indictment.

The accused's admissions

In 2015, the complainant's partner was pregnant with their first child. The State case is that given the alleged offending and the complainant's concerns for his yet to be born baby, the complainant attended a counsellor. As a result of this counselling, the complainant confronted the accused about the alleged offending. He said he obtained admissions of the alleged offending from the accused, together with an assurance that the offending would not be repeated.

The defence case

Primarily, the defence case is that each of the alleged dealings, carnal knowledge and sexual penetration did not occur.
Secondly, the defence is that the complainant has invented each of the offences alleged in the indictment because he wrongly believes that the accused sexually abused his two brothers. Those brothers, C and M, committed suicide in 2011 and 2016 respectively. The accused denies any alleged offending against the two brothers.
Thirdly, the defence is that the complainant's motive to invent these offences by making false accusations against the accused is that the complainant is now seeking some form of justice for his deceased brothers.
Fourthly, the defence case is that the complainant was frequently absent from the family home on Saturday afternoons, engaged in sport or playing with friends and other activities coupled with the fact that family and friends were constant visitors to the home on Saturday afternoons, such that it is not possible that the offences alleged in counts 1 - 5 inclusive could have occurred. Put simply, either the complainant was not at home or if he was, then there were too many people in the house to permit the alleged offending. Likewise, the same defence applies to Friday nights involving counts 6 and 7.
Of course, there is no obligation on the accused to prove anything in this trial: Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1.
It is first convenient to deal with the defences of recent invention, motive to lie and the unlikelihood of offending on a Saturday afternoon or Friday night. Secondly, it will be convenient to then examine the allegation of alleged admissions by the accused before proceeding to examine the evidence of the complainant and the accused as to the offending itself.

Recent invention

As noted, the defence is that the complainant has recently invented the alleged offending following the suicides of his two brothers. These suicides are said to be the motive for the inventions.
From the above chronology, it can be seen that the complainant's brother C suicided in November 2011 and his brother M in August 2016.
To rebut the defence of recent invention, the complainant's partner EB gave evidence that the complainant first disclosed to her the alleged offending in 2012 and then again on his thirtieth birthday in 2013. These were not the only occasions when this matter has been discussed between them.
Although EB gave evidence that she did not understand the dates of disclosures by the complainant to be important, it is the case that the investigating police officer in Western Australia told her that that was the case.
Further, from the evidence-in-chief of RH who is a friend of the complainant and his brother M, there was disclosure by the complainant of the alleged offending against him. RH remembered this disclosure as being after his trip to Nepal in 2013, and before M's death.
RH gave evidence that although M was quite prepared to talk about the sexual abuse he allegedly suffered, the complainant did not wish to do so. It embarrassed him. This resulted in arguments between M and the complainant, in which RH overheard. It was after such an argument that RH heard the complainant say 'the same happened to me'. This must have been whilst M was still alive. It could not be otherwise.
In cross-examination, RH was also reasonably sure that the complainant also told him of the offending before M suicided in August 2016, although he was not 100% sure. He further said that the complainant had conflicted feelings of emotions and that he defended the accused when the complainant argued with M.
The complainant also gave evidence that he told his friend DC of the alleged sexual abuse. DC did not give evidence, but his mother KMC did and she described the very close friendship between the complainant and DC. It can be found that DC is one of the few people the complainant might confide in. It matters not that DC did not give evidence.

Finding on recent invention

Notwithstanding EB's claim that she did not know the importance of the dates of disclosures, I accept her evidence as to the dates of the disclosures to her. It can be quite expected that the complainant would make such disclosure to EB having recently established a serious relationship with her. Further, it is quite understandable that there might be further disclosure on the occasion of the complainant's thirtieth birthday, being also the occasion when it was determined to spread the ashes of his brother C.
In all the circumstances, there is no reason to not accept the evidence of EB and RH that the complainant had disclosed the alleged offending against him at the hands of the accused prior to the death of M.

Motive to lie

There does not seem to have been any rush by the complainant to have his complaints against the accused prosecuted. He told EB about it in 2012 and again in 2013. It was raised with RH before M's death in August 2016. The complainant also attended on a counsellor in 2015 by reason that his partner was then pregnant with his first child and, given that pregnancy, he wanted to know how to deal with the alleged offending by the accused.
By reason of his partner's pregnancy, the complainant had good reason to then attend upon a counsellor to seek advice as to what should be done about the alleged past abuse. He was advised to confront the accused. He did so even with the admissions he said he received, he still did not then go to the police.
At this time M had not yet suicided, but even after that suicide in August 2016, it took another year before the complainant approached the police in New Zealand in September 2017, being where he was then residing and being a place at which his child was protected by the fact of his geographical removal from the accused, if nothing else. Being in New Zealand provided that protection and there was no requirement to seek police help to protect his child.
The accused accepts that he met the complainant at the park, but disputes making any admissions saying that the complainant only told him of his partner's pregnancy. This then, is the sole issue arising from the meeting in the park.

Direction on motive to lie

There is no onus on the accused to prove anything in this trial. There is therefore no obligation or burden on him to provide a reason why the complainant might have fabricated allegations against him. Nonetheless, counsel for the accused cross‑examined the complainant about the accusations of sexual abuse by the accused against his brothers M and C and has raised these matters as to why the complainant might have made false allegations of sexual offending against the accused.
If I do not find this matter to be persuasive, that does not mean that the complainant is telling the truth and that the State has proved its case. If I reject this matter, then it is necessary to put it to one side and to return to the task of deciding whether I find the complainant to have been a truthful, accurate and reliable witness and whether the State has proved its case beyond reasonable doubt.
I should however scrutinize the complainant's evidence with special care by reason of the suggested motive to lie, but the fact that the complainant may have had some degree of self interest in this matter is not of itself a reason to reject his evidence.
It is for me to determine whether the complainant is a potentially unreliable witness because he may have a motive to fabricate evidence against the accused in order to claim some form of justice for his now deceased brothers.
It is a matter for me to determine whether or not to accept the complainant's evidence and if I do accept it, what impact that might have upon defence counsel's motive to lie submission.
Apart from this matter being personal to the complainant as he accepted, the evidence does not reveal any motive by the accused.

Finding on motive to lie

I have already found that the complainant disclosed the alleged offending to EB as early as 2012. She is someone who is important in his life and it can be understood why he made his first disclosure to her when their relationship had been established as being permanent. This was four years before M's suicide. The complainant's report to the New Zealand police was an extension of that early disclosure. Justice for M could not have been a consideration behind the disclosure to EB in 2012 or to RH before M's death. Although there is no onus on the accused to prove anything, I am not persuaded that the suggested motive to lie makes the complainant a potentially unreliable witness notwithstanding a degree of personal self‑interest in this matter. Further, I accept the explanation of the complainant as to his inner feelings about the alleged offending as set out in his statement to the police as read out in re-examination and which is reprinted at [85] and [86] below.
In passing, I also note that there was a pretext call in 2018 between the accused and the complainant. This call was no doubt recorded and transcribed, but neither the recording nor the transcript have been tendered in evidence. I will neither guess nor speculate about matters which might have been raised in that conversation and which, if there was anything, might perhaps be instructive in relation to the allegations of motive to lie and recent invention and also to the seeking, and obtaining of, admissions by the accused in the walk around the park.

The Saturday afternoon/Friday night defence

Defence counsel went to a lot of effort to seek to establish a lack of opportunity for the accused to have committed these alleged offences. It is sufficient to observe that in cross-examination of the accused, he accepted that he was alone at home with the complainant on a Friday night or Saturday afternoon 'heaps of times'. It can therefore readily be found that there was therefore ample opportunity for these alleged offences to have occurred on a Friday night or Saturday afternoon as the complainant alleged. It should be noted from the chronology above, that, the accused and his wife had finally separated on a permanent basis prior to the alleged offending.

The confrontation

The State case relies upon admissions allegedly made by the accused to the complainant in 2015 at a park near the accused's home. The accused denies these admissions.

Evidence-in-chief of the complainant as to the confrontation

The complainant said that the confrontation followed advice from a counsellor that he should confront the accused about his allegation of sexual abuse as a child. His wife was then pregnant with their first son.
Following that advice, the complainant telephoned his father about his allegations but 'didn't address what he'd actually done'. Then, after the accused and the complainant had been at an uncle's home, the complainant told his father that he needed to talk and to go to the park. His father agreed.
The complainant's evidence was that he told the accused at the park that the accused had 'abused me my whole life'. This was whilst they lived at their home in Eden Hill, before moving to South Guildford. He told the accused that he was then an expectant father and that he did not wish the accused to be anywhere near his baby. He needed to know whether the accused had 'gotten over' his alleged offending. He needed 'to know now … that that part of you is … long gone'. He 'made him verbalise it and admit it about (my) brothers'.
The complainant's evidence was that his father told him variously that 'it's all in the past now', 'I was trying to make it stop then. I'm assuring you P I won't do it again'. He also said he did not 'feel like that anymore', and that he 'won't do that to anybody else'. He wanted 'to just move forward and let's just put it behind us and - and move on'.

Cross-examination of the complainant

The complainant admitted that he did not tell the counsellor of the abuse alleged against himself. However, he denied that the reason for this was because it did not happen. Rather, the complainant's evidence was that he did not tell the counsellor about the abuse he alleged he suffered at the hands of the accused because he had just met the counsellor, did not trust him and so he therefore advised only of the alleged abuse of his brothers. He did not then feel comfortable describing himself.
The complainant acknowledged that in the telephone call referred to at [75] above, before the walk in the park, that he
didn't quite disclose it (ie the alleged offending) then but then around the park I 100 per cent … spoke about myself … with my father.
He was then asked whether, at the park, the accused
tried to minimise what he'd done? …
The complainant agreed '100 per cent'.
The complainant was cross-examined to the effect that the conversation he described at the park did not happen, but he refuted that suggestion. Further, he refuted the suggestion that the first time he raised the abuse allegations was in the pretext call in 2018.
The complainant was also cross-examined to the effect that he did not raise these allegations until after his brother M had died, but he thought he might have told his friend DC when DC had a car accident. He was not asked about EB or RH as set out above.
The complainant refuted the suggestion that for a long time, he in fact 'believed that nothing happened'. This is a reference to his interview with the police, to which further reference will be made at [85] and [86] below. The complainant accepted that he spoke these words in that interview. He explained at [86] below that what he said at [85] below was his description of 'unfolding this event at the time'.
The complainant was cross-examined as to whether, in 2017, he told the police about this 2015 conversation in the park with the accused. His answer was that he was 'pretty sure' that he had done so and that he had 'seen that somewhere in the transcript'. He accepted that there was discussion between himself and the police officers about whether his father knew the abuse was wrong and that he said to the police:
I tried to talk about it. It was always like as if, like, nothing happened, blah, blah, you know.

Re-examination of the complainant

In re-examination, a passage was read from the transcript of the police interview as follows:
I remember sort of remembering coming to that – this is sort of like I remember hearing like Puberty Blues things at school and that I thought, oh, okay, if you've been doing this stuff, like you shouldn't be doing that. And I remember being fucking frightened, I mean like, oh, fuck, like what am I doing. And then I was like, oh -
[inaudible]
Keep doing that and does anybody else do it or, fuck, like what is this. Like does this mean that I'll get in trouble? Like does what - what -what - what have I done. And then it just sort of stopped sort of happening and I was sort of like fucking whew, like and I'm glad, like let's not tell anybody about this. Like, you know, it's like this and this big fucking black secret and it just sort of went on as if I like literally - it's just like fucking nothing happened. Like do you know what I mean? It was just like fucking like, yeah, but like it was just to the point where I believed that nothing happened.

The prosecutor then asked the complainant to explain what he meant by that passage to which his answer was:
Well, I guess when I say like I believed like nothing happened it was like I'm - that was probably a bad description and I wasn't - couldn't - as I said, it's quite hard to verbalise but (indistinct) you're silenced with such an act. Like it's such a hard feeling to even find the words to (indistinct). Like it's very (indistinct) come out with it to say like that (indistinct) nothing happened. I'm just trying to explain that I can't talk about it, like nothing happened like, you know, like you're silenced (indistinct).
So are you saying that you didn't believe anything happened or are you saying it was too hard to talk about and it was like - - - ? - - - Yeah, too hard to talk about it more but it obviously got - yeah, it was too hard to talk about is probably what I should have - would have been a more descriptive term, yeah.

Evidence of the accused on the confrontation

The accused accepted that he and the complainant were at the park together. However, his evidence was that the complainant only advised him of the pregnancy of his partner. He disputed any suggestion that the complainant confronted him about past sexual abuse.

Defence submission on the confrontation

The defence submission is that the alleged admissions should not be accepted for a number of reasons being:
1.In his police interview in 2017, the complainant told the police that when he spoke to the accused about these matters, the accused acted 'as if nothing happened'.
2.The complainant agreed in cross-examination that, at the park, his father tried to 'minimise' what he had done '100 per cent'.
3.The concessions of the complainant from 1 and 2 above are inconsistent with any admissions alleged to have been made in 2015 at the park.
It should be noted that, as can be seen from the transcript of the evidence, the complainant did not use the word 'minimise' as asked of him by counsel. Rather, that was her categorisation of his evidence from [76] above.
Defence counsel did not cross-examine the complainant as to whether or not he told the police of the admissions made in the park. She did not cross-examine the complainant on his evidence that he was 'pretty sure' that he had told this to the police. Further, she did not cross‑examine the complainant on his evidence that he had 'seen it (ie reference to the admissions made in the park) in the transcript' of his police interview.
It should be noted here that, with the consent of the complainant, defence counsel had a copy of the counsellor's notes notwithstanding that they are protected communications within the meaning of s 19E of the Evidence Act 1906 (WA). A copy of the notes was not tendered in evidence.

Findings on the confrontation

In dealing with this issue, it can be found that first, the complainant was still in a continuing relationship with the accused. Indeed, counsel for the accused referred to it as a good relationship and that there was nothing unusual about the meeting at the park. However, the catalyst for the complainant confronting the accused was the impending birth of his first child, and so the issue needed to be resolved by reason of that impending birth. This confrontation was not about the deaths of his two brothers in 2011 and 2016 respectively. Indeed, the 2016 suicide had not yet occurred. Disclosure of the alleged offending had been made in 2012 to EB and to RH after 2013 but, before August 2016.
Secondly, in 2015, the complainant consulted a counsellor for advice about this issue. The complainant was not challenged that it was the counsellor's idea that he should confront the accused about his allegations. He was not challenged that the meeting at the park was for the purpose of the confrontation. He was only challenged on the basis that the alleged admissions were not made.
Thirdly, the confrontation as to the allegation of sexual abuse is consistent with the undisputed fact of the complainant visiting a counsellor and that counsellor advising the complainant to confront the accused. The fact that no report was thereafter made to the police and that the complainant and the accused continued their association, is consistent with their past association which remained a continuing association and the explanations provided above at [85] and [86]. Consistent with the accused's explanation at the park, the complainant later introduced him to his new grandson. It could be expected that this introduction would not have occurred without the admissions and assurance that abuse would not occur again.
Fourthly, the accused conceded that there was a meeting at the park at which time the complainant told him of the impending birth of his child. The only difference between the parties is that the accused denied that the allegation of sexual abuse was put to him.
Given the proven and unchallenged facts outlined above leading up to the meeting at the park, it can be readily found that the sole purpose of that meeting was for the complainant to confront the accused about the accused's sexual abuse of the complainant. The anticipated birth of his child was a powerful motivation for him to not only have this confrontation and to resolve the issue in order for their family to move forward. I find that that confrontation occurred. I accept the evidence of the complainant as to the admissions made by the accused at the meeting at the park. In doing so, I have scrutinised his evidence, with special care, as required by a Longman direction, set out below.

The credibility of the accused

The accused denied the alleged offending detailed in the indictment. He also denied the matters alleged by way of relationship evidence. I accept the difficulty of disproving something which he claimed did not occur.
The accused sought to his minimise time alone with the complainant, suggesting he did not have opportunity to commit any offence on a Saturday afternoon by reason of the complainant's sporting and other activities. Initially, he was evasive about this allegation of timing. Later however, he did concede that sporting activities occurred on a Saturday morning. He also said that family friends were visiting and that there were children in and out of the house. Eventually, the accused conceded that there were times when he would be alone with the complainant on Friday nights/Saturday afternoons.
The accused called two witnesses with the aim of establishing a busy house with family and friends being there, but their evidence did not assist him. The presence of the accused's girlfriend S when the complainant was around 11 years of age would only limit the opportunity, not preclude the offending.
Further, the accused denied that the complainant ever slept in his bed. That is not plausible given that little children frequently end up in their parents' beds. The accused denied ever smacking the complainant, but the complainant and the accused's former wife both said that he did do so, although ultimately the accused accepted that he did so once or twice.
The accused also said that he always slept with his bedroom door open, although that is not plausible given that he at least had one partner, S, for some time.
The accused said that the complainant could not have had cash following his communion because that money would have been deposited into his school account. He could not say that this money was in fact so deposited. This contradicts the complainant's evidence which I accept, namely that he wanted to spend it at the Belmont Shopping Centre.

Finding on the accused's credibility

The accused's admissions at the park of sexually abusing the complainant are inconsistent with his denials in court of any alleged offending. Further, given my finding that the accused made admissions at the park, together with the above finding as to evasiveness about opportunity and to a lesser degree the other above findings, it is difficult to accept any of the evidence of the accused as to his denials of the alleged offending. I must necessarily put his evidence to one side and then look to see whether the evidence of the complainant as to the offending can be accepted.

Failure to complain

The complainant made no immediate complaint soon after the alleged offending. His complaint was not made until September 2017 when he went to the New Zealand police.
The defence submission is that the failure to complain to anyone about these events, including to the counsellor, indicates that the alleged offending did not occur. This failure therefore impacts upon the complainant's credibility.
This failure needs to be considered when assessing the complainant's truthfulness. Failure to complain is a relevant matter. It is for me to consider and to weigh its significance.
However, pursuant to s 36BD of the Evidence Act, absence of, or delay in making, a complaint of sexual assault does not necessarily indicate that the matters complained of did not happen. There might be good reason for not having made any police report of the offending until 2017.
There is evidence as to the complainant's explanations for the failure to disclose as set out at [85] and [86] above. His reasons for not reporting the offending to the counsellor are set out at [78] above. It is necessary to bear these reasons in mind in determining what degree of significance to give to the failure to complain.

Finding on failure to complain

Absence of complaint does not necessarily mean that the offending was committed is false. There may be good reason for the victim of a sexual offence to not complain or to delay in complaining. For the reasons set out at [108] above, I accept the complainant's evidence as to his reasons for not complaining.
Further, the fact that complaints were ultimately made is not to be taken as independent or separate evidence of the truth of the complaint or to bolster the credibility of the complainant.

Longman direction

This case involves historical allegations of sexual abuse. It is necessary that, before the prosecution can succeed, I must find the complainant to be a truthful, accurate and reliable witness. I must comply with the requirements of a Longman direction.
In this case, the only witnesses who can speak directly about the alleged offences are the complainant and the accused, who is the alleged offender. Sex cases are usually in private between two persons, being the complainant and the offender. The complainant and the accused have both given evidence and have both been subjected to cross‑examination. I must not approach in my deliberations by asking, 'whose evidence do I prefer? The complainant's or the accused's? That would be the wrong approach.
Nonetheless, the State asks me to accept the complainant as a witness of truth. He is, of course, the only witness to give direct evidence as to the happening of the events alleged in the indictment. No‑one has corroborated the complainant's evidence as the occurrence of the offences themselves.
The State case rises or falls on the complainant's evidence. Because of the crucial nature of his evidence and because of the seriousness of the allegations he makes, I need to scrutinise his evidence with special care in order to assess whether I find his evidence to be truthful, accurate and reliable.
In assessing the truthfulness, accuracy and reliability of the evidence of the complainant, I should bear in mind that human memory is fallible and that the longer the delay between the happening of the alleged offending and this trial, the greater the possibility of error in recollection of the incidents which give rise to the alleged offences.
The passage of time does make it more difficult to accurately recall a particular incident with details. The passage of time from the alleged offending to this trial increases the possibility of factual errors being made when the complainant here described events which occurred sometime in the past up to 30 years ago. This length of time must be borne in mind considering the complainant's then age of between 7 and 8 years in counts 1, 2 and 3, 9 years in counts 4 and 5 and 10 or 11 years in counts 6 and 7 and his age now at 38 years when giving evidence at trial.
It is a matter of common experience that the longer a person believes something to have happened, the more convinced that the person is that it has happened. This can be so even if the person is mistaken in his or her recollection. Even honest witnesses can be wrong in their recollections. I need to appreciate that the longer the delay between the alleged incidents giving rise to these charges and this trial, the more difficult it is for evidence relating to the incidents to be fully recalled and tested by an accused person.
The delay, coupled with the lack of factual precision in some instances makes it difficult to recall each of the alleged offences in detail.
These factors make it difficult for an accused person to examine in detail the circumstances surrounding the alleged offences and here, the accused said he did not become aware of the allegations until the pretext call in 2018. When the allegations were put to him, he denied those allegations. The delay from the offending to trial places the accused at a disadvantage.
By disadvantage, it can be said that the usual way of testing a complainant's evidence is, very often, by reference to the surrounding circumstances and details which, whilst not necessarily of significance themselves, may help to indicate whether a complainant is or is not truthful, accurate and reliable. It is the case that here the complainant was not able to provide full evidence detailing the surrounding circumstances of the offences such as where other members of his family were. He did not provide any real evidence of surrounding circumstances relating to the relationship evidence concerning other occurrences, although that is frequently the case.
I need also to bear in mind the forensic disadvantage suffered by the accused in not being able to challenge the evidence of the complainant. Because of this passage of time:
1.The complainant has difficulty recalling the events with great precision.
2.It is difficult for the accused to be able to recall the surrounding circumstances of each count or circumstances within his household in the years disclosed relevant to each count so as to challenge the complainant's allegations.
The investigating officer did not give any evidence concerning the difficulties police had in their investigations in obtaining certain information. Defence counsel did not raise any matters preventing access to information.
Nonetheless, by reason of the delay, the accused has been denied the chance to assemble, soon after the alleged incidents are said to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incidents allegedly happened.
The forensic disadvantage is real and apparent even if it is only the loss of a detailed memory of an alleged event. This loss of detailed memory can impact on both the complainant and the accused in terms of each of them being able to offer only limited evidence of the alleged events.
There are two aspects to the forensic disadvantage, being the loss of a chance to adequately test the complainant's evidence and to adequately prepare a defence.
Had the complaint proceeded to an arrest soon after the alleged events, it would have been possible for the accused to further explore the pertinent circumstances and detail at that time, and perhaps to gather, and to look to call at trial, evidence throwing doubt on the complainant's evidence or confirming the defendant's denial of an offence in question. These opportunities are now lost by the delay.
The fairness of the trial as the proper way to prove or challenge the accusations has necessarily been impaired by the long delay.
I have therefore taken these various circumstances into account when assessing the complainant's evidence. As noted, the only direct evidence produced by the State as to the commission of these charges is that of complainant himself.
The passage of time is a factor in people's recollection of events and memory and recollection often dims with a passage of time. The passage of years between the alleged events and the matter proceeding to police interviews and coming to court for hearing raises the question that I must consider, which is the truthfulness, accuracy and reliability of the complainant's recollections and whether or not I can safely rely and act upon it regarding the events in this matter.
I must also note that it would be dangerous, although it is entirely a matter for me, to find the accused guilty of the charges presented against him unless, having carefully scrutinised the complainant's evidence with great care and attention and having paid due regard to it and applying what I have just explained, I am satisfied beyond a reasonable doubt as to the truthfulness, accuracy and reliability of his testimony. If, having evaluated his evidence with great care and mindful of the matters set out above, I am satisfied as to the truthfulness, accuracy and reliability of his evidence on any particular matter, then I can make findings of fact based on that evidence.

Relationship evidence

In this case, there is also certain other alleged conduct by the accused as detailed by the complainant in his evidence which concerns other occasions upon which the accused dealt with the complainant in a sexual manner. This included the complainant waking up to find the accused fondling or masturbating his penis and performing fellatio.
The complainant alleged that this occurred from a time when he was very young, such that in his lifetime, the conduct was always occurring for as long as he could remember and it continued until he was 11 years old or older.
This evidence was led by the State to explain why the accused was confident in being able to offend as he did on the occasions he did and why the complainant now has some difficulty in particularising the counts in the indictment, given the volume of the charged and uncharged acts committed against him.
The accused has not been charged with any of this other conduct, which I will call 'other occurrences' and which he denies.

Finding on relationship evidence and the use of it

For the reasons set out below as to the complainant's credibility, I accept the evidence of the other occurrences as having been proved notwithstanding any lack of real detail as to surrounding circumstances. The evidence of the other occurrences from the complainant is not only truthful, but it is also accurate and reliable insofar as the nature of the various acts complained of has been detailed by him. Further, I can only use this evidence of the other occurrences for the two purposes nominated by the State. The evidence of the other occurrences cannot be used for any other purpose.
Even accepting the evidence of the other occurrences as being true, I cannot then automatically move to a finding that the accused committed the seven offences with which he has now been charged.
The evidence of the other occurrences with which the accused has not been charged is not direct evidence that he committed an act with which he has been charged. It does not follow that by committing any of the other occurrences, that, he also did an act with which he has now been charged.
The commission of the counts set forth in the indictment can only be proved by direct evidence from the complainant of what he saw, heard and experienced himself specifically relating to the charged offences and not by any evidence relating to the other occurrences.
I could not use the evidence of any other occurrence be so as to make up for any deficiency I find in the evidence to prove each of the elements of the seven charged offences.
Importantly, accepting the evidence concerning the other occurrences as being truthful, accurate and reliable, I must not then reason that the accused is the kind of person likely to have committed any of the seven charged offences.

I would still need to consider each count separately and could not find the accused guilty of an offence with which he has been charged unless I am satisfied beyond reasonable doubt by direct evidence that that offence was committed by him.

Analysis of credibility of complainant

The prosecutor submitted that this case is really about honesty, rather than accuracy and reliability because if the complainant's evidence is not to be accepted, it is because of one of two possible explanations. First, he was honestly mistaken, being unreliable or inaccurate or, secondly, he was not honest, but deliberately lying. The State's submission, which I accept, is that the complainant cannot be honest, but mistaken, about this alleged offending because he could not possibly be mistaken about an offender fondling his penis, rubbing his penis between his buttocks and penetrating his anus with his penis. It either happened or it did not. The complainant was resolute in his cross‑examination that the matters alleged by him are true, notwithstanding the length of time since they occurred. And given that time, surrounding circumstances may be difficult to now detail.
The first thing about the alleged offending is that it occurred on three separate occasions, and the occurrence of each of these three occasions has been verified in evidence. First, the accused did travel to the United Kingdom stopping in Thailand on both the outward and inward journeys which fits the complainant's description of timing on counts 1, 2 and 3. This evidence is not disputed by the defence.
Secondly, the complainant's first Holy Communion did occur in October 1992 as demonstrated by a photograph of the family get‑together thereafter, and which photograph bears the date of October 1992 which relates to the timing of the alleged offending in counts 4 and 5.
Thirdly, in 1994, there were four school discos and there is undisputed evidence of the dates thereof throughout the school year which is consistent with the complainant's evidence of timing as to counts 6 and 7.
I have previously determined that there was opportunity for the alleged offending on a Saturday afternoon or a Friday evening. This, of course, is a very general finding. However, on the undisputed evidence set out at [143] - [145] above, that general finding has been narrowed more specifically to coincide with events specified by the complainant in the three episodes of the alleged sexual offending.
The State case is that the complainant gave evidence of the alleged offending in an honest, truthful and accurate manner so far as his memory permitted. It is to be expected that he cannot recall all surrounding circumstances, but he did clearly articulate the details of the offences themselves. One thing that is clear is that the complainant alleged that the three episodes of offending set out in the indictment were the only occasions on which the accused offended against him to the extent specified in the indictment. This is, no doubt, why he can recall the events surrounding the offending and the acts committed on these three specific occasions. This is, in itself, a reason to accept his evidence of the nature of the acts alleged on these occasions.
Defence counsel submitted a number of reasons to accept the complainant's evidence.
First, the evidence of the complainant is that counts 1, 2, 3, 6 and 7 all occurred on a Saturday afternoon and that counts 4 and 5 occurred on a Friday night. This was the house in which at least three other children were resident together with the complainant and the accused. It was a house where there may well have been visitors at any given time such that it is not possible that this offending occurred by reason of the possibility of a family member, friend or guest attending at the home and interrupting that offending. However, that is not a compelling argument. The accused himself conceded opportunity or a Friday night or Saturday afternoon. The offending may have been brazen, but during the period of the offending, the complainant never disclosed anything, so that the accused could become confident of the complainant's discretion knowing that he had not made any disclosure and it is to be acknowledged that this kind of offending can occur in brazen circumstances with the risk of exposure which, in the court's experience, can often hold little deterrence.
During cross-examination, the complainant was questioned about the direction in which he was facing when the alleged offending occurred on his father's bed. If he lay on his side, then he would either be facing the bedroom window or lying on the bed facing the direction of the bathroom. The complainant explained that he might commence looking out of the bedroom window, but that when the offending occurred, he would roll onto his right side.
The complainant said that whenever the offending occurred, he lay on his right side and placed a pillow between his right ear and raised his right arm up to his ear with the pillow between his ear and arm in order to block out whatever it might have been that the alleged offender was saying. That makes perfect sense for a child his age given that he did not enjoy the alleged offending.
It is clear that the bed was positioned in a way that the complainant could look out of the window or towards the bathroom. However, the complainant has always been deaf in his left ear.
The defence submission was that the use of the pillow by the complainant to block out noise is inconsistent with his evidence in which he described what his father was saying to him as set out at [34] above during the Holy Communion incident. However, this use of a pillow could not be expected to entirely prevent the complainant from hearing what was said to him and clearly, what is said at [34] above was at the start of the episode such that the timing of the use of the pillow was during the offending, but not necessarily before it began. In this way, the complainant could hear the accused speak.
The accused's wife said that when she lived in the house, there was not any Vaseline. However, this does not mean that the accused did not have any at the time of the alleged offending.
The complainant claimed that he was spending most nights in the accused's bed. I accept that was implausible by reason that the accused's wife did not leave until the complainant was 7 years of age. This does not affect his credibility as to the offences themselves.
The complainant claimed he did not have a fixed bedtime, but his mother and the accused both said otherwise. She left the home when the complainant was 7 years. This does not affect his credibility as to the offences themselves.
Defence counsel made much of the fact that there was an absence of specific details from the complainant that only somebody having experience of the acts he described could actually provide. There was no description about the size of the accused's penis, the length of time of penetration, the number of thrusts, how long it took to achieve ejaculation and no description of smell or what he observed by way of wet substances following the alleged offending, being either ejaculate or possibly blood. There is no description of the oil and Vaseline to which the complainant referred. Such evidence is generalised as was his description of pain, being a generality in that it did not describe the sharpness or otherwise of the pain or where it was and for how long it endured. However, this does not affect the complainant's credibility as to the offences.
With respect to the Holy Communion incident, the complainant gave evidence-in-chief as to count 5 that there was a sexual penetration of his anus, but he also accepted that he had previously said in his police statement that he could not specifically recall being penetrated on that occasion. This concession is not consistent with a deliberate liar. His response in cross-examination was as follows:
what you're suggesting is that I'd - what I'm suggesting to you is that I was unclear on the actual boundary line that you are trying to be so clear about with an anus and a bum cheek and where the penis has penetrated. I find it very confusing with how you're trying to make me just describe these explicit moments and that's what I mean, that's why - that's why I'm unclear.
What are you trying to ask? Was there a full penis up into my stomach or was there one on the outside?
This seems to suggest that, in terms of count 5, there was not the depth of penetration which occurred in counts 3 and 7 as to which the complainant could be certain, but in his evidence on count 5, he was 'unclear on the actual boundary line … with an anus and a bum cheek'. This is a frank comment from a witness who is being honest, rather than someone who might have sought to exaggerate his evidence, or worse. There is no evidence as to the contents of the police statements about the entirety of the events being the subject of count 5. If there were, it might clarify matters, but I cannot guess or speculate about matters not in evidence.
However, the complainant did say in his evidence-in-chief that the accused's penis penetrated his anus. It could be inferred that he was suggesting only partial penetration on count 5 compared to counts 3 and 7 without him knowing the legal definition of penetration. I am to have regard to his evidence in court, rather than his police statement. The accused was not charged with a penetration in this incident. Rather, the charge is an indecent dealing. Any explanation for this can only be speculative. On the facts, the credit of the complainant is not diminished. He can only give evidence of the facts. The State determined the relevant charge.
As to the disco incident, the complainant alleged that his father lifted him in from the car to the shower and washed him. The defence is that there was no need to carry him into the house because he was then 11 years of age and could walk. The defence says that the complainant's account is further implausible because the accused could not lift him and carry him into the house over his shoulder and then wash him in the shower at a time when it was possible that there was someone at home. However, the complainant described the carrying of himself from the car to inside the house as being over the accused's shoulder. There is nothing implausible about that with an 11-year-old child. Further, the accused conceded that he was at home alone on Friday nights with the complainant. The possibility that someone else was at home is just speculation.
Defence counsel also submitted that the complainant conceded that M protected him from the accused, such that it could be inferred that M would not allow the complainant to return home on a Saturday afternoon and be alone with the accused. However, there is no evidence to suggest that this was the case every Saturday. It is also to be remembered that M was at all relevant times a teenager with his own life to lead and it cannot be expected that the complainant would have spent every Saturday afternoon with him.
Defence counsel submitted that people in the household could not have unaware of some of the things which the complainant has described, if they were true. However, there are only three charged events of the kind now under consideration over a period of three years. It is therefore open to consider that M was protecting the complainant, but he could not have always been expected to have done so successfully in an absolute sense.
Further, evidence was given by M's friend ML that he would frequently drop the complainant at home on a Saturday afternoon so that ML and M could undertake their own social agenda without the complainant, who was six years younger than M.
Further, the pretext call in 2018 concerned at least M. As noted, there is no evidence about this call apart from the fact of its occurrence and that there was reference in it to M.
It was also put to the complainant in cross-examination that when he attended the counsellor, he did not inform the counsellor of the alleged offending against himself, but rather, he referred to the offending concerning his brothers. The complainant accepted that his explanation for this was that he 'didn't quite trust' the counsellor at that time and so he spoke about his brothers, not wanting
to be talking to someone fresh about what had happened. No way. I didn't trust him. Like, couldn't just - (indistinct) sort of information of how to deal with these situations so it would - (indistinct) just saying, like, I was so embarrassed about it all.
This explanation is consistent with the evidence of RH that the complainant was reluctant to speak about the alleged offending. This explanation is perfectly logical and provides an explanation for not disclosing the offending against himself prior to 2017.
Further, the complainant was cross-examined at length. His descriptions of the alleged offending remained consistent throughout. He did not seek to embellish any of his evidence. He made appropriate concessions that there were things he had told the police which he could not now remember, and which he did not dispute when cross-examined on his police statements. He was accurate as to the specific occasions on which the alleged offending occurred and the specific acts of which complaint was made with the exception of count 5, which has been dealt with at [159] - [160] above. As might be expected, he could not remember all the surrounding details.
The alleged offending in the indictment occurred some 27 to 30 years ago commencing when the complainant was 7 or 8 years of age. The explanations provided by the complainant and reprinted at [85] - [86] above, are consistent with the experience of the court that young children who are offended against by a family member may not, at first, appreciate the wrongdoing. But then, when they are old enough to understand that the activity is wrongful, they wonder whether they will get into trouble for it. They are relieved when it ceases. They are not however, able to reveal it to anyone for any number of reasons, but some may continue their relationship with the offender. It is something which is hard for them to talk about. However, eventually many such victims are able to give an account of events which they have experienced.
The explanations provided by the complainant fits within the court's experience as outlined above. However, eventually, on the advice of the counsellor, this complainant was able to confront the accused by reason of the pregnancy. He was later able to report the matter to the police.

Findings on complainant's credibility

I have already accepted the complainant's evidence of the confrontation at the park. The rejection of the accused's evidence of that confrontation has impacted severely on my assessment of his other evidence and I have put his evidence to one side.
It cannot be found that the complainant has deliberately lied in this matter.
My finding is that the complainant was truthful, accurate and reliable in giving his evidence for the reasons set out above.
After carefully scrutinizing the complainant's further evidence as to the relationship evidence of other occurrences, it can be found that, general as it was, such other occurrences have been established. That evidence explains why the accused was confident in being able to offend as he did when opportunities arose. Such evidence also explains the complainant's difficulties in particularising the charged acts beyond what he has already done.

Cross-admissibility

In the circumstances of this matter, it is not necessary for me to rely upon the cross-admissibility of one conviction when considering other charges.

Verdicts

For the reasons outlined above, I find the seven counts set forth in the indictment to be proved beyond reasonable doubt.
The accused is guilty as charged on all seven counts. Judgments of conviction should be entered against him.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JB
Associate to Judge Goetze
30 JULY 2021