DISTRICT COURT OF QUEENSLAND
CITATION:
R v EJT [2021] QDC 47
PARTIES:
THE QUEEN
(Crown)
v
EJT
(Defendant)
FILE NO/S:
129 of 2018
DIVISION:
Criminal
PROCEEDING:
Trial
ORIGINATING COURT:
District Court of Queensland at Bundaberg
DELIVERED ON:
25 March 2021
DELIVERED AT:
Bundaberg
HEARING DATE:
16-19 March 2021
JUDGE:
Loury QC DCJ
ORDER:
Not guilty on all counts.
COUNSEL:
S. Dickson for the Crown
C. Cassidy for the Defendant
SOLICITORS:
Office of the Director of Public Prosecutions for the Crown
Dwyer Criminal Law for the Defendant
On 16 March 2021 the defendant entered pleas of not guilty to 12 offences alleging sexual conduct with his step-son, J. Counts 1-6 are in the same terms as follows:
That on a date unknown between the thirteenth day of February 1988 and the thirty-first day of July 1990 at Brisbane in the State of Queensland, EJT unlawfully and indecently dealt with J, a child under the age of 16 years.
Counts 7 and 9-12 are as follows:
That on a date unknown between the thirteenth day of February 1988 and the thirty-first day of July 1990 at Gladstone or elsewhere in the State of Queensland, EJT unlawfully and indecently dealt with J, a child under the age of 16 years.
Count 8 is as follows:
That on a date unknown between the thirteenth day of February 1988 and the thirty-first day of July 1990 at Gladstone or elsewhere in the State of Queensland, EJT sodomised J, a person under 18 years.
The indictment was presented on 13 October 2015. On 26 October 2020 an order was made by another judge of the District Court for the trial to proceed by judge sitting alone.
In opening the case for the Crown the following particulars were provided:
Incident #1 – in the apartment at Herston – when the complainant was asleep
Count 1 – Indecent treatment – The defendant touched the complainant’s penis.
Incident #2 – in the apartment at Herston – the next night – in the defendant’s bed
Count 2 – Indecent treatment – The complainant touched the defendant’s penis.
Count 3 – Indecent treatment – The defendant touched the complainant’s penis.
Incident #3 – in the apartment at Herston – in the defendant’s bed – when the complaint was feeling weak from treatment
Count 4 – Indecent treatment – the defendant touched the complainant’s penis.
Count 5 – Indecent treatment – the defendant performed oral sex on the complainant.
Count 6 – Indecent treatment – the complainant performed oral sex on the defendant.
Incident #4 – on the first train ride to Brisbane – in the sleeper carriage
Count 7 – Indecent treatment – the defendant touched the complainant’s penis.
Count 8 – Sodomy – the defendant penetrated the complainant’s anus with his penis.
Incident #5 – on a different train ride to Brisbane – in the sleeper carriage – where there was one instance of oral sex
Count 9 – Indecent treatment – the complainant performed oral sex on the defendant.
Incident #6 – on a different train ride to Brisbane – in the sleeper carriage – where there were two instances of oral sex
Count 10 – Indecent treatment – the defendant touched the complainant’s penis.
Count 11 – Indecent treatment – the defendant performed oral sex on the complainant.
Count 12 – Indecent treatment – the complainant performed oral sex on the defendant.
The following witnesses were called in the trial:
The complainant, J
The complainant’s mother, Ms C
The complainant’s wife
The complainant’s brother, R
Mr Currie
Two police officers who investigated the allegations
The defendant himself did not give evidence. A recorded interview was tendered in the prosecution case. It contained denials by the defendant that he committed any sexual offence against the complainant. The defendant posed a possible motive for the complainant to have made a false complaint in his interview. A financial dispute arose between the defendant and complainant at the end of 2008. The suggestion was that a business dispute might have caused the complainant to develop such animosity towards the defendant over the following six years that he was prepared to make a false complaint. Whilst cross-examine did traverse the financial dispute it was not put to the complainant that this was his motive for making a false complaint. The absence of his response to such a suggestion goes to the weight that I could place on this possible motive. To my mind the financial dispute was so far removed in time to when the complainant first disclosed the abuse that I would reject this as a possible motive for a false complaint. It is however, not for the defendant to prove the complainant’s motive to lie. It remains always for the prosecution to prove the guilt of the defendant to the standard of beyond a reasonable doubt.
The significance of the defendant’s denials in the interview with police is that it is appropriate that I direct myself in accordance with Liberato v The Queen[1] that the defendant bears no onus of proving his innocence. I need not be satisfied that his statements are true before he is entitled to a verdict of not guilty. It is not a case of choosing between the defendant’s account in his interview and the complainant’s evidence. It remains for the prosecution to prove beyond reasonable doubt on the whole of the evidence that the defendant is guilty.
The evidence
[1] (1985) 159 CLR 507. See also De Silva v The Queen (2019) 94 ALJR 100 at [12].
The complainant, J was born on 20 October 1975. His brother, R is three years older than him. His mother, Ms C was married to the defendant when J and R were young boys. Ms C and the defendant went on to have two more children together, L and T. They were married for 37 years as at 2014.
It was not controversial in the trial that in 1988 J was diagnosed with acute lymphoblastic leukaemia. This was, and remains, a particularly traumatic period in the lives of the complainant and his mother. J has a very vivid memory of falling off his bicycle, being injured and ending up at the Gladstone Hospital where blood tests confirmed his diagnosis. He was flown to Brisbane accompanied by his step-father, the defendant, and admitted to the Royal Childrens Hospital (“RCH”). J gave evidence that he was put into an isolation ward named the “Turner Ward”. He said the only people who were permitted access to him were his two doctors, his step-father and his grandmother. His recollection was that his mother remained in Gladstone with his three other siblings. J said he was in the isolation ward for roughly six months and that he lost a dramatic amount of weight, approximately 45 kilograms, making him 10-12 kilograms. After six months he was transferred to the RCH oncology ward. He recalled the treatment he received and could name the drugs that he was administered.
In terms of treatment, he said that the chemotherapy would make him very sick, nauseous, he lacked energy and his veins collapsed. He said in the early stages of the treatment he felt like a zombie. In his words “my mental thinking capability was minimal. I was virtually dead man walking.”[2]
[2]T1-17 line 45.
Once his health started improving J said that he and the defendant were housed in a unit in Herston. It was on the opposite side of the grounds to the RCH. He recalled it being a two bedroom unit with a queen bed and a single bed, a shower, toilet, kitchen and lounge. It was approximately 500 metres from the hospital and he would be pushed in a wheelchair to and from the hospital by the defendant as he was too weak to walk the hill. J recalled living in the unit for one to two months with the defendant.
J described an incident occurring in the unit where he fell asleep on the queen bed and was awoken during the night to the defendant touching his penis and testicles inside his boxer shorts. J described the defendant masturbating him to ejaculation. He said the defendant told him not to say anything to anybody, that it was between the two of them and the reason that he touched him was because he loved him. This event occurred within the first couple of nights of staying at the unit (Incident #1).
The following night J described again sleeping in the queen bed with the defendant. He said that the defendant masturbated him, grabbed J’s hand and had J masturbate the defendant. J said the defendant then performed oral sex on him. After a lunch break during the trial, J indicated that on this second occasion the defendant did not perform oral sex on him (Incident #2).
On the third occasion J said that after returning from the hospital after treatment he went to bed in the queen bed, the defendant performed oral sex on him and masturbated him until he ejaculated. He then requested that J perform oral sex on him. J complied. The defendant ejaculated although not in J’s mouth (Incident #3).
After living in the unit for one to two months, J returned home to Gladstone with the defendant. He was required to travel back to Brisbane regularly for further treatment. Initially he and the defendant would fly to Brisbane once per fortnight. After a time they made those trips by train. On the first trip in a sleeper carriage J recalls shortly after leaving Gladstone, the defendant shutting the blinds and locking the door. He pulled his and J’s pants down. He got J onto the ground and penetrated his backside with his penis. J described seeing the feet of people through the vents in the door as they walked past. He said that he later noticed blood in his underwear and his backside was sore (Incident #4).
J described two other incidents that occurred on the train in a sleeper carriage. On one occasion he was sitting beside the defendant in the sleeper carriage. The defendant pulled J’s penis out and masturbated him. He then performed oral sex on J and asked J to do the same to him. J complied (Incident #6). On the other occasion the defendant pulled his penis out and put it in J’s mouth until he was ready to ejaculate which he did into a towel (Incident #5).
J did not disclose what had occurred until 20 December 2014.
In cross-examination J said that the defendant had sodomised him on hundreds of occasions up until he was 30 years of age. He recalled an event when the defendant and he were in business and had travelled to Gemfest. He said that the defendant propositioned him on that trip which was overheard by his wife. This, he said, was the end of the defendant’s offending against him. He said he had no further contact with the defendant after this time. He agreed that this coincided with the financial disagreement that occurred between himself and the defendant.
The complainant’s wife gave evidence. It was ultimately accepted by the Crown Prosecutor that the evidence she gave did not amount to evidence of preliminary complaint. She did not give any evidence corroborating the complainant’s evidence that he was propositioned by the defendant at Gemfest. Her evidence otherwise was focused on the financial dispute.
The complainant’s mother, Ms C, gave evidence in the trial. Unsurprisingly she too has a vivid memory of the diagnosis and treatment of her son’s leukaemia. She recalls J falling off his bicycle in February 1988. He had very significant bruising and the defendant took him to hospital. Late in the afternoon the defendant came home and told her of J’s diagnosis and that arrangements had been made for J and him to fly to Brisbane the next day. She remembers that being the 15th of February 1988. She said that she next saw J when she was able to travel to Brisbane two weeks later. She took her three other children with her to Brisbane. When she saw J he was in a very poor physical state. J was in hospital for three months after which he returned to Gladstone. He was still required to travel to Brisbane for further treatment approximately every two or three months. She and the defendant kept a notebook which recorded those trips and other details of his blood tests and medications.[3]
[3] Exhibit 3.
Ms C recalls staying at a unit in Brisbane at Herston near the hospital. She, the children, the defendant and J, when he wasn’t in hospital, all stayed in the unit. She shared the main bedroom with the defendant. Her two youngest children attended the RCH school as did J when he was well enough.
R, J’s older brother, also recalls his brother being diagnosed with leukaemia and recalls travelling to and staying in Brisbane for a period. He remembered staying in a unit near the hospital for a period of time.
R was present when J first disclosed the abuse. He was at his mother and the defendant’s home on 20 December 2014 when J attended. He recalls J saying that the defendant was “doing him” while he was sick and that he was still “doing him ..up the bum” while he was out at Emerald.
The complainant spoke to Mr Currie in 2014, a few months prior to his disclosure on 20 December 2014. Mr Currie’s memory of what the complainant said was that when J was cancer ridden that he was raped by the defendant and “fucked up the arse”. He could not remember the exact terms of J’s disclosure. J said that it happened quite often during his treatments and on the train back and forth.
Medical records[4] tendered in the trial reveal the following notations:
[4] Exhibit 5.
1. The complainant was diagnosed with acute lymphoblastic leukaemia on 12 February 1988
2. He was admitted to the RCH on 13 February 1988
3. It was expected by hospital staff that the complainant’s mother and sister and brother were arriving on 18 February 1988.
4. The defendant had obtained a flat for the family to stay in which was available from 6 pm on 18 February 1988.
5. On 19 February 1988 the complainant went out with the defendant for one and one-half hours before returning to the ward due to tiredness.
6. The complainant was discharged on 23 February 1988 accompanied by his parents.
7. On 3 March 1988 J’s three siblings were established at the RCH school.
8. On 4 March 1988 J’s weight was recorded as 36.5 kilograms
9. On 8 March 1988 J’s father and step-mother visited him in the hospital
10. On 10 March 1988 J was discharged home to Gladstone. He was due to return by car in three weeks for radiotherapy.
11. On 28 March 1988 J, the defendant and Ms C returned to RCH for J’s treatment. They drove to Brisbane from Gladstone.
12. Results of a bone marrow aspirate and lumbar puncture performed on 29 March 1988 showed that J was in complete remission. Chemotherapy was still to be administered in Gladstone. His long term survival prospects were considered at that date to be in the order of 25-50 percent.
13. J was seen at the RCH on 8 April 1988; 12 April 1988 and 19 April 1988. He completed his “prophylactic cranial irradiation” on 19 April 1988.
14. J was readmitted to RCH on 4 May 1988 for chemotherapy.
15. He had attended the RCH school on 4 May 1988.
16. The records reveal that he shaved his head on 4 May 1988.
17. His general practitioner was requested to administer some of J’s chemotherapy in Gladstone. Extensive instructions were given to his general practitioner.
18. J was examined at RCH on 15 August 1988.
19. J was examined at RCH with the defendant on 22 September 1988.
20. As at 7 November 1988 the RCH was requesting that J’s general practitioner continue administering his treatments in Gladstone with a request to see him every eight weeks.
21. The documentation after that date includes periodic reviews through to 18 November 1991 at which time J was “off treatment” for 16 months. All of the reviews suggest that J was doing well at school, that he was active with no health problems.
In cross-examination the complainant confirmed his memory was that he was in the isolation unit for approximately six months and that he did not see his mother or his siblings throughout that time. He confirmed that other than his grandmother he did not see anyone else and that he couldn’t leave the hospital. When he moved to the unit with the defendant he slept in the queen bed with the defendant for the duration of his stay other than for the first couple of nights. The sexual abuse in the queen bed he said happened virtually every day.
Ms C and the defendant kept their own handwritten notes of J’s treatment upon his return to Gladstone. That notebook records entries “Return to Brisbane” next to a date as follows:
Return to Brisbane
1. 20/10/88
2. 5/12/88
3. 31/1/89
4. 28/3/89
5. 3/4/89
6. 29/5/89
7. 7/8/89
8. 9/10/89
9. 11/12/89
10. 22/2/90
11. 26/4/90
12. 6/7/90
Those records tend to suggest, consistent with the medical records, that the complainant returned to Brisbane approximately every two months. That is quite inconsistent with J’s own memory that he returned to Brisbane every fortnight.
The complainant, in his evidence, appeared to be a deeply traumatised man for two reasons, his diagnosis of leukaemia as a 12 year old boy and consequent coming to terms with his own mortality at such a tender age and the sexual abuse at the hands of the defendant. Whilst the complainant gave a compelling account of the sexual abuse, there are a number of features to the evidence which serve to undermine the reliability of his evidence and more particularly the reliability of his memory.
At first blush the complainant appeared to give a compelling account of his experience as a survivor of blood cancer. He remembered dates, the names of his doctors, the names of the drugs he was administered, the name of the ward he was in and the experience of diagnosis and treatment in hospital. What the medical records serve to demonstrate is that his memory as vivid as it is, is unreliable. He was not in hospital for six months. His mother and siblings were all in Brisbane staying in the unit in Herston from as early as 18 February 1988 when a note in the records indicates that his mother and siblings were expected to arrive that day. Another note indicates that the defendant had obtained accommodation for the family to stay in which became available from 6pm on 18 February 1988. Other notes indicate that “the parents” took “CDA form” directly to the Department of Social Security in Fortitude Valley on 22 February 1988 and that the complainant was discharged accompanied by his parents on 23 February 1988. Certainly by 3 March 1988 the complainant’s siblings (and therefore his mother) were in Brisbane attending the RCH school.
Consistent with the medical records is the evidence of his mother and R who both remember coming to Brisbane and living in the unit. Certainly Ms C’s evidence that she came to Brisbane as soon as accommodation was found which was around two weeks after the diagnosis is consistent with the contemporaneous medical records. Living in the unit were therefore the defendant, the complainant’s mother, Ms C, his three siblings and the complainant. Ms C said unsurprisingly that she slept in the main bedroom with the defendant.
The complainant’s own evidence was that the chemotherapy hit him very hard and his “mental thinking capability was minimal”. Later in evidence he said that in that period of time when he was a young boy there was a lot going on for him, he was very sick and he was very confused.
The complainant’s evidence is that similar sexual abuse occurred every night in the unit when he slept in the queen bed with the defendant. That abuse commenced within days of his living in the unit. On the state of the evidence before me it seems probable that his mother and siblings were in the unit with him and the defendant over the period in which they stayed. He could not on that body of evidence have been sleeping in the queen bed with the defendant. The complainant’s memory of this time period in his life is unreliable and not sufficiently cogent that I can act on it with any confidence.
The Crown Prosecutor has accepted that on the state of the evidence before me, that the medications that the complainant was receiving affected him mentally. No evidence has been led about what impact the medications administered to the complainant and indeed the treatment that he was receiving in 1988 might have had on him and whether either the medications and/treatment were capable of distorting his memory.
It is unknown what emphasis was placed on J’s psychological well-being in 1988 as opposed to his physical well-being which was, of course, the priority. Nonetheless, J had to deal psychologically with the pain and suffering associated with his treatment; the isolation of hospitalisation, particularly from his mother, at a time when he had just been diagnosed with a life-threatening illness; and the possibility of his succumbing to his illness. He also had to cope with the reactions of each of his family members to his diagnosis and his treatment. For a boy of 12 years he was psychologically under an enormous amount of stress, at a time when his body was also under an equal or greater amount of stress.
The treatment that the complainant received continued through until July 1990. All of the offending is said to have occurred during this period of time. No evidence was led in chief by the Crown Prosecutor of any offending that occurred after the complainant’s treatment had stopped. In cross-examination the complainant said that anal sex started on the train and continued after he was 18 years of age until he was 30 years of age. He agreed that he had only told the police that anal sex occurred once on the train however in cross-examination he said that it occurred hundreds of times after he turned 18 years. He said that similar sexual abuse including anal sex occurred on the train on trips to Brisbane for treatment.
It is significant in my view, that the only offending that the complainant has described as a child has occurred in a period where he was being subjected to very significant and painful treatments. As indicated no evidence has been placed before me as to the impact that those drugs or treatments might have had on his capacity to observe, to remember and to give a coherent narration of events actually experienced.
The prosecution’s case relies solely upon the evidence of the complainant. There is no evidence that provides any independent support for his account. The independent evidence, the medical records, contradict his account. The evidence of the preliminary complaint witnesses (R and Mr Currie) do not resolve the real issue in the trial which is focused on the accuracy and reliability of the complainant’s memories. It is no answer to simply argue that the complainant’s account is rich and full of detail and contains unique details which could not have been readily made up. On the state of the evidence before me the offences he describes in the unit could not have happened. That finding undermines the reliability of all of his evidence.
Much focus was directed to the inconsistencies in the complainant’s evidence both in cross-examination and in address as is often the case. Many of those inconsistencies were in my view of little moment and consistent with the passage of time. The one significant inconsistency which arose however was the complainant’s statement that he was sodomised on many occasions on the train when he only told the police in his statements to them that there was one occasion on the train when he was sodomised. This is a significant inconsistency which does give rise to a concern as to the reliability of the complainant’s account. I did not gain the impression that the complainant was a particularly careful witness. He did not listen carefully to the questions asked of him. His answers were often unresponsive to the question asked. Prior to his conference with the Crown Prosecutor he had not taken the time to properly refresh his memory from his statements taken six years earlier. At times he was angry and appeared to exaggerate. He is a deeply traumatised man who found the experience of giving evidence in itself traumatic.
A peculiar feature to the evidence was the complainant’s evidence that he allowed the defendant and his mother to babysit his own children at least until the estrangement between himself and the defendant and his mother. It seems that the complainant allowed his own daughters to spend time with the defendant until the end of 2008 when one of his daughters was 10 years of age. When re-examined about why he allowed the defendant to babysit his children he responded that his wife’s parents were busy working and that the defendant and his mother were taking the children most of the time. His answer did not provide a satisfying explanation to me as to why he exposed his own children to such a risk when on his evidence the defendant was still at this time propositioning him for anal sex.
A further issue which arises with respect to the incident involving anal sex on the train is that the complainant said in evidence that he sustained some form of injury during that event. He noticed blood in his underwear. This is said to have occurred shortly after leaving Gladstone on the way to Brisbane where a medical examination which involved an examination of the genitalia took place. It is argued that if the complainant was injured as he described then such an injury would have been noticed and recorded in the medical records. No such record has been made. The complainant’s account was that the medical examination involved an examination of his testes and not his anal region so such an injury would not have been noted. It is difficult to know whether an examiner would have noted blood in his underpants or whether such an examination would have involved an examination of the anal area.
The absence of an early complaint in this regard has resulted in a significant forensic disadvantage to the defendant in not having available to him the ability to know from a timely medical examination whether there was evidence available capable of refuting the complainant’s allegation. The delay has impacted the availability of doctors and medical staff as to the nature of the physical examinations performed on the complainant. Had the complaint been made at an earlier time the defendant might also have been able to gather together evidence as to the train trips taken by himself and the complainant, and whether they were in a sleeper carriage or otherwise. In the 26 years between the timing of the offending and the making of the complaint the defendant has been diagnosed with Parkinson’s disease which effects his mental functioning and his ability to communicate. His difficulties communicating are apparent from the interview with police. I would assume that is the reason why the prosecutor took the decision to tender the interview. It is most certainly the reason why the court’s daily sitting hours were from 9-11am and from 1-3:30pm.
The delay has also impacted the defendant’s ability to test the complainant’s evidence by reference to the contemporaneous memory of other witnesses, particularly his mother and brother. All of these difficulties put the defendant at a significant disadvantage in responding to the prosecution case both in testing the prosecution evidence and in adducing evidence. I must take into account that disadvantage in assessing the prosecution’s case.
The defendant is presumed to be innocent. A finding of guilt involves more than simply accepting the complainant is an honest witness. It also requires me to find that he is accurate and reliable in his recollection. I do consider J to have been an honest witness doing his best to recount a traumatic period in his life. I do not however consider that I can be satisfied beyond a reasonable doubt that his memories are reliable and accurate. His memories about his experience in hospital and living at the unit are in direct contrast to the contemporaneous medical records and the evidence of his mother and brother. His memory is not accurate or reliable in that regard. His memory of this period in his life is distorted. All of the offending occurred throughout the period when he was receiving treatment. There is a real risk that his memories throughout this period are distorted. In the absence of any evidence supporting his account I cannot be satisfied to the very high standard that is necessary, of the guilt of the defendant.
I find the defendant not guilty on all counts.