REGINA v SBD

INTRODUCTION 4 The appellant was tried on six charges of indecent or sexual assault, essentially comprising three groups of two offences. He was acquitted of the first four and convicted of the last two. The charges were as follows - (i) indecent assault at Hurstville Grove between 1 January and 31 December 1986, when the complainant was 5 or 6 years of age; (ii) indecent assault at Hurstville Grove between 1 January and 31 December 1986, when the complainant was 5 or 6 years of age; (iii) sexual intercourse without consent at Hurstville Grove between 1 October 1991 and 30 November 1991, when the complainant was 11 years of age; (iv) sexual intercourse without consent at Hurstville Grove between 1 October 1991 and 30 November 1991, when the complainant was 11 years of age; (v) sexual intercourse without consent at South Hurstville between 1 April 1995 and 29 February 1996, when the complainant was 15 years of age; and (vi) sexual intercourse without consent at La Perouse between 1 April 1995 and 29 February 1996, when the complainant was 15 years of age. 5 The sole ground of appeal is that the convictions were unreasonable or cannot be supported having regard to the evidence. In support of this ground, the appellant points to the apparent inconsistency between the verdict of guilty and the verdicts of acquittal as well as to the weaknesses in the prosecution case.

THE INITIAL COMPLAINTS 6 The complainant did not complain to anyone until he was about 17, when he told D (I gather a mature person), in whose house he was then living, about being sexually assaulted. D gave evidence that she met the complainant in 1998. She described him as a person who is not open and engaging, very introverted and one who does not like people contact. D noted that he was depressed on his 18th birthday and, when she asked him if he had "been touched", he became upset and said, "Yes, by a man" but, when she asked him whether he wished to tell her anything about it, he stopped talking about it. Over the next few months, the complainant told her "bit by bit a little more about what had occurred". On one occasion, the complainant told D something to the effect that the appellant would bind his hands and legs up with rope and use a chemical called Amyl which he would put over his face and then put deoderant aerosol cans up his anus and, on another, that the appellant had videotaped him having sex and oral sex with him and had shown the tape to all the blokes from the neighbourhood. When the complainant talked about the assaults, he started off quietly and would shake and then he would get louder and louder and break down and cry and then he would get angry. She said her conversations with the complainant gave her the impression that the assaults had happened more than once, although she could not say whether the complainant had actually told her this. On a fair reading of D's evidence, it does not appear (with the possible exception of what was said to have been videotaped) that the complainant told D that the appellant had frequent or, indeed any, anal intercourse with him. D said that on one occasion, the complainant was outside her house cleaning a car, when he ran inside the house and appeared white as a ghost and he was crying and shaking. He then pointed to the front of the house and told her that he was out there. She ran out of the house and saw a red-coloured old-styled Gemini outside the house and saw an Australian-looking man with short sandy-coloured hair about twenty-eight years old in the driver's seat. She came inside and the complainant told her that it was the appellant and that he had raped him. She said that the complainant did not want her to tell anybody. However, in October 1998, sometime after the above incident, she contacted Crime Stoppers and reported to police what the complainant had told her. 7 (D also gave evidence that when he was living with her he seemed to spend a lot of time in the toilet and, on one occasion, he asked her to come inside the toilet and have a look at his bottom to see if it was alright and at the time he appeared to be embarrassed. She says that she saw veins the size of a twenty cent piece come out of his rectum. This evidence, although not objected to, was both inadmissible and extremely prejudicial and the learned trial judge rightlly directed the jury to completely disregard it. That it was introduced is a a troubling feature of the case.) 8 Police made contact with the complainant some time after the phone call to Crime Stoppers. A statement was taken from the complainant on 17 June 1999 and a second statement was obtained on 21 December 2000.