The High Court has dismissed an appeal against a decision of the Full Court of the Supreme Court of South Australia concerning the adequacy of a judge’s reasons for convicting the accused of the offence of persistent sexual exploitation of a child. The complainant alleged that the accused, his uncle, abused him between the ages of 5 and 15, including showing him pornographic videos at the age of around 7, masturbation while the complainant used a computer in a bedroom, an oral sex at various locations (a shed and a property where he grew cannabis, a house owned by a woman the accused was having an affair with, and before the complainant rode the accused’s motorbike.) The uncle denied all the claims of sexual abuse and disputed some other details of the accused’s claims, including the location of the computer and when the complainant visited the shed and other locations. The accused was charged with the following offence:
An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
The trial was before a judge without a jury. The judge said the complainant presented as ‘a man endeavouring to tell the truth’ and ‘described real events’, while he was ‘unimpressed with the [accused’s] presentation.’ He wrote:
I also accept [the complainant] as a reliable witness as to the core allegations. I have scrutinised his account very carefully. Some of his estimates of his age when events occurred were not reliable (for example, when he rode the motorbike or being ‘stoned’), but they were not sufficient to cause me to doubt either his truthfulness or reliability. Any exaggeration was not deliberate. As reflected in cross-examination, he had trouble remembering the process whereby statements were taken from him, who he told beforehand, who he was with and when he made particular allegations. My comments above should not be overlooked and it should not be forgotten that the conduct alleged took place many times over many years.
After further discussion, he concluded:
I have considered whether the attributes of [the complainant] as a person and the various criticisms of his evidence caused me to have a reasonable doubt and they do not. I reject the evidence of the [appellant] on substantive issues where he denied the alleged sexual conduct. I find that the [appellant] sexually assaulted [the complainant] on numerous occasions over a period of some years. The sexual assaults mainly took the form of indecent assaults and mutual oral sexual intercourse.
As Nettle J put it (at ), ‘That was it.’ The accused lost his appeal to the Court of Criminal Appeal, but made a new argument in the High Court of Australia that the trial judge’s reasons were inadequate in light of the requirement that the court find at least two acts of sexual abuse by the accused proved beyond reasonable doubt.
A 3-2 majority of the High Court (Kiefel CJ, Keane and Edelman JJ, with Bell J and Nettle J dissenting) held that the trial judge’s reasons were adequate. Continue reading