Director of Public Prosecutions v Henshaw

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

GORDON HENSHAW (A pseudonym)

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JUDGE:	Her Honour Judge M. Sexton
WHERE HELD:	Melbourne
DATE OF HEARING:	19-22 April 2021
DATE OF JUDGMENT:	28 May 2021
CASE MAY BE CITED AS:	DPP v Henshaw
MEDIUM NEUTRAL CITATION:	[2021] VCC 1578

REASONS FOR JUDGMENT

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Subject: Criminal Law

Catchwords: Rape

Legislation Cited: Evidence Act, Criminal Procedure Act 2009

Cases Cited: Bodney v Bennell (2008) 167 FCR 84, Jackson v Lithgow City Council [2008] NSWCA 312, R v Whyte [2006] NSWCCA 75, Australian Securities and Investments Commission v Rich (2005) 216 ALR 320, R v Cavkic (2000) 12 VR 136; [2005] VSCA 182, R v Star [2020] VSCA 331

Verdict: Guilty on Charge 1: Rape – no verdict delivered on alternative charge 2 of Sexual Assault.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	OPP
For the Accused	Mr D. Cronin	Emma Turnbull

Index to Judgement

TOPIC	PAGE
Introduction	5
Trial by Judge Alone	5
The Issues	6
General Directions of Law · Evidence Given Remotely · Presumption of Innocence · Burden and Standard of Proof · Decide Solely on the Evidence · Circumstantial Evidence and Conclusions · Credibility and Reliability · Previous Versions	7- 10
Other Directions of Law · Complaint Evidence · Distress · Section 52 Jury Directions Act · Section 41 Jury Directions Act · ‘Liberato’ – type Direction · Evidence of other Misconduct · Good Character · Disregard Excluded Matters · Hearsay Opinion Evidence · Alternative Charges and Separate Consideration · Elements of the Charges	10-19
The Evidence · Jonathan Henshaw · Karen Dunlop · Katie Dunlop · Lana Marshall · Pamela Copperwaite · Det. Acting Sen. Sgt Campbell · Record of Interview	20 - 50
Prosecution Closing Address Defence Closing Address	50 - 52 52 - 55
Analysis and Findings of Fact · Facts not in dispute · Facts in dispute and findings o Who was the initial aggressor? o What do I accept from the evidence of Ms Copperwaite and what weight do I give it? o Did Jonathan have his father in a headlock? o Does the account in the Record of Interview give rise to a reasonable doubt? o Is the complainant credible and reliable?	55 - 70
Findings on Elements in Dispute · Satisfied beyond reasonable doubt of penetration? · Satisfied that the act was intentional?	70 - 74
Verdict	75

HER HONOUR:

In the matter of Gordon Henshaw (a pseudonym), judgment on Indictment No. L11520424.

Introduction

The accused Gordon Henshaw[1] is charged with:
Charge 1: Rape
Charge 2: Sexual Assault
[1] In my published remarks, a pseudonym will be used for the names of the accused, complainant and family. This is to ensure there is no publication of any matter that contains any particulars likely to lead to the identification of the complainant in a sexual offences case (section 4(1A) Judicial Proceedings Reports Act).
Charge 2 is charged in the alternative to charge 1. Accordingly, the Crown only seeks conviction on one of the charges on the indictment.
The accused pleaded not guilty to both charges on arraignment before me on 19 April 2021.

Trial by Judge Alone

This case is being tried by me as judge-alone. The accused’s application to be tried by judge alone pursuant to s.420D Criminal Procedure Act 2009 (CPA) was granted on 30 March 2021 by another judge of this Court.
In hearing this matter I may make any decision that could have been made by a jury. My decision will, for all purposes, have the same effect as a verdict of a jury.
Section 4A Jury Directions Act 2015 (JDA) applies in this case.[2]
[2] Pursuant to s.420ZF CPA introduced by the enactment of the COVID-19 (Emergency Measures) Act 2020
Section 4A provides that the Court's reasoning with respect to any matter in which Parts 4, 5, 6 and 7 apply must be consistent with how a jury would be directed in accordance with the Jury Directions Act. Further, I must not accept, rely on or adopt a statement or suggestion that the JDA prohibits a trial judge from making, or a direction that the JDA prohibits a trial judge from giving.
I must apply all directions of law to myself that would have been given to a jury in this case.
In returning a verdict, I am obliged to give reasons sufficient to identify the principles of law applied by me and the main factual findings on which I have relied.

The Issues

On the evening of Wednesday 28 June 2017, the accused is alleged to have sexually penetrated the complainant Jonathon Henshaw[3], his adult son, by inserting his finger into the complainant’s anus (Charge 1 – rape) during a physical altercation, or in the alternative, it is alleged he sexually touched his son on the outside of his anus (Charge 2 – sexual assault).
[3] A pseudonym.
The issues as outlined orally in Court in the Prosecution Opening and Defence Response on 19 April 2021 are:
·For charge 1:
o whether the prosecution have proved there was penetration;
o if so, whether the prosecution have proved the accused’s actions were intentional; that is, conscious, voluntary and deliberate.
·For charge 2:
owhether the prosecution have proved the accused’s actions were intentional; that is, conscious, voluntary and deliberate.
It is not in dispute that the accused was present at his home on 28 June 2017, and he and the complainant were involved in a physical altercation.
Any act of penetration is denied by the accused. It is asserted on behalf of the accused that any touching by him around the anus of his son was accidental.
For ease of identification, I will refer to the accused as Mr Henshaw or the accused, and to Jonathon Henshaw as Jonathon or the complainant. I mean no disrespect to either of them in doing so.

General Directions of Law

I refer first to the general directions given in a criminal trial which I must apply.

Evidence Given Remotely

The evidence of the complainant Jonathon, his mother Karen Dunlop[4], and his grandmother Katie Dunlop[5], was given from a remote location.
[4] A pseudonym.
[5] A pseudonym.
The evidence of those witnesses must be given no greater or lesser weight because it was given remotely. I draw no inference adverse to the accused because these witnesses gave evidence from a remote location.

Presumption of Innocence

In all criminal trials an accused person is presumed to be innocent of the charge unless and until they are proved to be guilty.

Burden and Standard of Proof

The prosecution always bears the burden of proving the case against the accused. The accused person does not have to prove their innocence.
The accused may be found guilty of a charge only if the prosecution has proved its case beyond reasonable doubt by proving each element of that offence. Proof to any lesser extent must result in a verdict of not guilty.

Decide Solely on the Evidence

I must decide the case only on the evidence led in this trial. I must not have regard to any media reporting or social media, or conduct any research about the parties or witnesses. The transcripts are to be used as an aid and not as a substitute for the evidence adduced at trial. The addresses of counsel are not evidence.
The evidence adduced in this trial is the evidence of each of the witnesses, the exhibits, and an agreed fact whereby agreed evidence of Pamela Copperwaite was read out by the prosecutor.
As the Judge of the facts and the law, I must consider all of the evidence in the case, find the facts, and only draw reasonable inferences or conclusions based on the evidence that I accept, as well as apply the law to the facts as I find. I must bring an open and unbiased mind to the evidence and weigh it logically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must deliver my verdict according to the evidence.

Circumstantial (Indirect) Evidence and Conclusions

Where, as here, the case against the accused as to the element of his state of mind rests on circumstantial or indirect evidence, I may only return a verdict of guilty on a charge if I am satisfied that proof of that element is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect, and satisfied that all other elements are proved. If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his guilt beyond reasonable doubt and I must acquit him.

Credibility and Reliability

I must assess and determine the credibility and reliability of each witness and I may accept all, some or none of a witness' evidence. I must base my verdict only on evidence I find to be credible and reliable.
Credibility concerns honesty: is the witness telling the truth? Reliability may be different. A witness may be honest, but have a poor memory or be mistaken.
It is for me to decide whether the witnesses are telling the truth, and whether they correctly recall the facts about which they are giving evidence.

Previous Versions

If I accept that a version of a witness is consistent with what the witness said in evidence, I can use the earlier version to assess their credibility. I may find that their credibility is reinforced, because it shows that they have given a consistent account in the past. I can also use the contents of the earlier version as evidence in the case: if I find what the witness said on another occasion is consistent with their evidence, what they said in that version also becomes evidence.
I must decide whether earlier versions are inconsistent with other accounts given by the witness, or inconsistent with accounts given by another witness.
Being different and being inconsistent is not necessarily the same thing, and I must look at each version separately to decide whether they are truly inconsistent.
A difference can be a gap in a witness’s account, an inconsistency in a witness’s account or a difference between one witness’s account and another witness’s account.
I keep in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. Truthful witnesses may make mistakes about details. Sometimes people make mistakes, or get confused, or genuinely cannot remember a fact. On the other hand, dishonest witnesses are more likely to introduce inconsistencies in their stories.
I also take into account factors affecting the particular witness, for example, the passage of time since the events happened; or other things impacting on their ability to accurately recall, such as trauma; or that the thing said was not important to them at the time; or they were under stress when they gave the earlier versions or in evidence in this court.
If I accept that a witness has given inconsistent versions on a topic, I may use that fact when assessing that witness’s credibility and reliability. I may find that the fact that they have previously given an inconsistent account means that the evidence they gave in court is less likely to be truthful or accurate. I may therefore be less willing to accept their evidence on that topic or overall. Also, if I accept that they did give the other version, I can use the contents of that version as evidence in the case. If I find that an earlier version is inconsistent with a witness’s evidence in this court, I will have different accounts from the same witness. I must then determine which account, if any, to believe.
In summary, if I accept that a witness is consistent in their versions and evidence, I may find that their credibility is reinforced. If I accept an inconsistent version was given by the witness, I may use that to assess whether their credibility and reliability is affected. If I accept another version that was given by a witness, whether it is consistent or inconsistent, I may use that as evidence in the case.
In assessing any differences in the accounts of Jonathon Henshaw, the complainant, I take note that[6] experience shows that people may not remember all the details of a sexual offence, or describe it in the same way each time; that trauma may affect different people differently, including by affecting how they recall events; that it is common for there to be differences in accounts of a sexual offence; and both truthful and untruthful accounts of a sexual offence may contain differences. It is for me to decide whether or not any differences I find in the complainant’s account are important in assessing his credibility.
[6] Section 54D JDA
It was submitted by the defence that the complainant, Jonathon Henshaw, made prior inconsistent statements. In his evidence, the complainant accepted that the earlier statements he was referred to were made by him, and said in effect that those earlier statements were to be relied upon as they were made closer in time to the alleged event. The topics appear in my summary of Jonathon’s evidence.

Other Directions of Law

I turn to other directions of law which are relevant to this case.

Potential support for complainant’s account

In assessing the complainant’s evidence, I have considered whether there is any potential support for his account. I find that there are two areas of potential support: complaint and distress. Ultimately it is a matter for me whether there is such support.
·Complaint Evidence
There was evidence given that the complainant made immediate complaints of rape to his mother Karen Dunlop, his girlfriend Lana Marshall[7], and his grandmother, Katie Dunlop.
[7] A pseudonym.
If I accept that a complaint was made, then I may use complaint evidence in two ways:
oFirst, as proof of the truth of facts asserted in the complaint; and
oSecond, to assess the credibility of the complainant by showing that his account of the events in question has been consistent.
· Distress
There was evidence from each of the complaint witnesses just referred to that the complainant was distressed immediately after the alleged penetration, and for some time thereafter.
If I accept the evidence of these witnesses, I may use the complainant’s reaction as circumstantial or indirect evidence supporting his account that the events happened in the way that he alleged.
Like all circumstantial or indirect evidence, I must consider the distress as observed by these witnesses in light of the whole of the evidence in the case, and only act on reasonable conclusions.
In this case, distress evidence forms part of the narrative of the complaints. Such evidence may support the matter described in the complaint, taking into account the time interval between the alleged offending and the observed distress; any evidence of the complainant’s conduct and appearance between the alleged offence and the observed distress; and the circumstances at the time of the alleged distress.

Section 52 JDA Direction

In his evidence, Jonathon agreed that he made his statement to police on 16 January 2019.
In his interview with police, Mr Henshaw said that if Jonathon believed that Mr Henshaw tried to sexually assault him, Jonathon should have reported it straightaway, which, Mr Henshaw said, did not occur[8].
[8] Record of Interview A93
I consider that these two pieces of evidence suggest that the complainant delayed in making his complaint to police. Experience shows that people react differently to sexual offences and there is no typical, proper or normal response to a sexual offence. Some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint. It is a common occurrence for there to be a delay in making a complaint to police about a sexual offence.

Section 41 JDA Direction

The accused did not give evidence. That fact is not evidence, and does not constitute an admission by him. I do not draw any conclusions against the accused because he did not give evidence, or even consider the fact that he did not give evidence when deciding whether the prosecution has proved beyond reasonable doubt the case it brings against him. I do not use the fact that he did not give evidence to fill gaps in the evidence led by the prosecution.

‘Liberato-type’ Direction

The accused did provide an account in his interview with police conducted on 2 August 2019, in which he denied the allegation of penetration, and which I will come to in more detail later in this judgement.
There is a clear conflict between the complainant’s evidence of penetration and the account the accused gave to police denying penetration and asserting that any touching was accidental in the course of the physical altercation. My decision is not based on a choice between the complainant’s version and the version of the accused. If there is any aspect of the evidence in the trial, including the interview of the accused, which leads me to have a reasonable doubt about the prosecution case, or if I am not sure where the truth lies, then I must find the accused not guilty of the particular charge I am considering.
If I do disregard the version of the accused, I must put it aside, and ask myself whether I am satisfied beyond reasonable doubt, on the basis of the evidence that I do accept, that the prosecution case is proved for the particular charge I am considering.

Evidence of other Misconduct

Evidence was led from the complainant and his mother that there had been ‘regular arguments’ in the household, and the accused confirmed this in his interview. There was also some general evidence by the complainant and his mother about the accused’s behaviour other than on the occasion of the alleged event, which was not disputed, for example:
·     there had been arguments in the previous weeks[9],
·     the accused was described on previous occasions as being in a ‘pit bull’[10], ‘bulldog’ or ‘animal’ state; or shaking, grinding his teeth and spit coming out[11], which Jonathon said happened throughout his childhood[12]; and
·     when the accused grabbed Jonathon, like he was trying to pick him up from the legs, it was something he had tried to do a couple of weeks prior[13].
[9] T72 L5
[10] Record of Interview A
[11] T180 L19
[12] T75 L3-6
[13] T79 L2-7
The prosecution confirmed the evidence of other misconduct was led as background or context, and as part of the narrative.
I must not use that evidence for any other purpose, and I must not decide the case based on any prejudice arising from what I heard about the accused.

Good Character

Evidence was given by Detective Acting Senior Sergeant Campbell that the accused has no criminal convictions, has never been interviewed for or charged with an offence (other than those before me), nor has he been a respondent in any Intervention Order[14]. There are no charges pending.
[14] The witness referred to Apprehended Violence Orders; in Victoria, there are Personal Safety Intervention Orders and Family Violence Intervention Orders.
I use that evidence of good character when determining the likelihood that the accused committed the offences, and when assessing the credibility of his account in his interview with police. I bear in mind that a person of good character can commit an offence for the first time.

Disregard Excluded Matters

I disregard all of the evidence excluded by agreement between the parties or in rulings during the pre-trial discussions and during the trial. In particular, as neither the complainant’s police statement nor the recorded telephone conversation between the complainant and his father were in evidence, and as questions do not form the evidence, I disregard any references to the complainant’s police statement or the phone conversation in the questions to the complainant in his evidence, or in questions to the accused in the accused’s police interview, unless adopted in the answer.

I confirm, as indicated in Court, that apart from reading the Prosecution Opening and Defence Response, and those parts of the depositions referred to me by counsel during pre-trial argument, I have not read or viewed any material other than the evidence presented in court.

Hearsay Opinion Evidence

In this case, there was hearsay evidence admitted under section 66 Evidence Act which was also submitted to be in the nature of lay opinion evidence, the admissibility of which is governed by section 78 Evidence Act.
Hearsay evidence is often admitted as the basis of an opinion. That is, witnesses’ opinions will be based on out-of-court representations, admissible to explain the assumptions on which an opinion is based[15].
[15] Bodney v Bennell (2008) 167 FCR 84, [91]-[93]
In this case, the hearsay evidence is an out-of-court representation submitted to be an opinion, rather than the basis of an opinion.
The evidence is contained in an agreed fact read into evidence by the prosecutor. The agreed fact is what Mr Henshaw’s psychologist, Pamela Copperwaite, noted she heard Karen Dunlop and Jonathon Henshaw say, during a telephone call from Ms Dunlop to Ms Copperwaite about the alleged events of 28 June 2017. The specific evidence relied on as an opinion of Ms Dunlop is “It was an accident, Jonathon”.
It seems to me that the evidence of Ms Copperwaite also potentially provided hearsay opinion evidence from Jonathon Henshaw, as well as a previous consistent version from him: that is, what Ms Copperwaite noted he said his father raped him in the same telephone call, That could be both an opinion and consistent with his evidence.
· Hearsay evidence
Dealing with the hearsay[16] aspect first, both Jonathon Henshaw and Ms Dunlop, who made the purported representations, were called to give evidence.[17] Further, when the representations were said to be made by each of them in the phone call to Ms Copperwaite, the occurrence of the asserted fact (what took place at the time of the alleged penetration) was fresh in their memory[18], because the telephone call to Ms Copperwaite was within days of the altercation between the accused and Jonathon.
[16] Section 66 Evidence Act
[17] Section 66(2)(a)
[18] Section 66(2)(b)
Neither Ms Dunlop nor Jonathon was able now to recall the contents of the telephone conversation with Ms Copperwaite in 2017. Ms Dunlop stated that she had called Ms Copperwaite to seek help for Mr Henshaw, that she did not expect the call to be recorded, and that she believed her son. However, Jonathon did give evidence consistent with the asserted fact contained in the representation.
Thus, the responses of these two witnesses brings into consideration of this potential hearsay opinion evidence the law relating to consistent and inconsistent versions, which I outlined earlier.
· Lay Opinion evidence
Hearsay evidence of an opinion is itself opinion evidence.[19]
[19] Jackson v Lithgow City Council [2008] NSWCA 312; R v Whyte [2006] NSWCCA 75. See also Australian Securities and Investments Commission v Rich (2005) ALR 320
Opinion evidence from a lay (non-expert) witness[20] may be given if two requirements are met: first, the opinion is based on what the person saw, heard or otherwise perceived about an event[21], and second, the evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the event[22].
[20] Section 78 Evidence Act
[21] Section 78(a)
[22] Section 78(b)
However, I am not required to accept the opinion, as what is said is merely a piece of evidence like any other, which I may accept or reject. It is for the fact finder to decide whether an opinion is credible and what weight it should be given.[23]
[23] R v Anderson (2000) 1 VR 1
Ordinarily, witnesses are not allowed to give opinions; they must confine their evidence to their own observations. This is because it is usually only the opinion of the fact finder that is relevant.
The relevance of opinion evidence may depend upon an assessment of its factual basis. It will not be relevant if it does not have a rational factual basis.[24]
[24] Section 55 Evidence Act
Usually, when evaluating the opinion evidence of experts, a fact finder should consider:
·     the witness’s demeanour;
·     the way the opinion is expressed;
·     the quality of the reasons for the opinion;
·     the facts offered [by the expert] in support of their conclusion;
·     the witness’s response to cross-examination;
·     whether the witness appeared to be impartial, or whether they were biased and overstated their evidence.
My task involves an assessment of potential opinion evidence from lay witnesses, not expert witnesses, and also involves the aspect of the evidence being out of court representations as perceived by another witness who was not called to give evidence.
However, in this complex task, I will draw on the principles applying to expert opinion evidence where appropriate.
I will return to this topic in my findings of fact, after summarising the evidence and counsels’ addresses.

Alternative Charges and Separate Consideration

In this case, Charges 1 and 2 relate to the same alleged event, and are alternatives.
It is only if I reach a verdict of not guilty on Charge 1 that I would consider and then deliver a verdict on Charge 2.
The accused is entitled to a separate trial of each charge. I must not reach my verdict by compromising between them, and I must consider each charge separately, in light of the evidence which applies to it.

Elements of the Charges

In order to prove Charge 1, rape, the prosecution must prove the following three elements beyond reasonable doubt:
·One - the accused intentionally sexually penetrated the anus of the complainant;
·Two – the complainant did not consent to the penetration; and
·Three – the accused did not reasonably believe that the complainant consented to the penetration.
In order to prove Charge 2, sexual assault, the prosecution must prove the following four elements beyond reasonable doubt:
·One - the accused intentionally touched the complainant near his anus;
·Two - the touching was sexual;
·Three - the complainant did not consent to the touching; and
·Four - the accused did not reasonably believe that the complainant consented to the touching.
Consistent with the way the case proceeded, I note that the elements in dispute are whether the prosecution have proved beyond reasonable doubt:
·For Charge 1, the first element only, that the accused intentionally sexually penetrated the anus of the complainant; and if not proved,
·For Charge 2, the first and second elements, that the accused intentionally sexually touched the complainant near his anus.
To prove sexual penetration in this case, the prosecution must prove the accused introduced his finger or fingers into the anus of the complainant. Even the slightest penetration is enough, but there must be actual penetration, and not merely a touching of the fingers to the outside of the anus.
To prove sexual touching, the prosecution must prove the accused touched the complainant, and the touching is sexual because of the area of the complainant’s body being touched, such as the anal area. Sexual touching can be done through clothing. Any touching, however slight, is enough.
To prove that the accused intentionally sexually penetrated or intentionally sexually touched the complainant, the prosecution must prove that the accused did the particular act under consideration consciously, voluntarily, and deliberately.

The Evidence

Before I turn to a summary of the evidence, I note that neither the complainant nor his mother was asked to identify all the relevant rooms in which they described events happening, by reference to the floor plan (Exhibit B). As a result, I refer to the rooms as named by the witnesses, but I am careful not to draw any conclusions as to which rooms they are referring to unless the evidence is clear.
Next, the complainant was a difficult witness to hear clearly at times, because he spoke very fast, with half-formed or self-interrupted sentences in quite long answers. I viewed the audio-visual recording of the evidence of the complainant during my assessment of the evidence in making my judgement in this trial, which is in keeping with the practice of making the recordings of evidence available to juries, along with the transcript, to refresh their memories of the evidence[25]. The evidence is what I, as the fact finder, hear. Where the transcript differs from what I heard, I have referred to the correction in a footnote.
[25] Section 223 Criminal Procedure Act

Jonathon Henshaw – the complainant

Examination in chief

On the evening of Wednesday 28 June 2017, the accused, his wife Karen and the complainant Jonathon Henshaw were all at home. The complainant was in his bedroom at the end of the house[26] (which I conclude is Bedroom 3 or 4 as labelled in Exhibit B); his mother, Ms Dunlop, was in the kitchen (labelled in Exhibit B), and the accused was in another room, the ‘study’. This was described by the complainant as being just around the corner from the open space (T69 L14-16), directly behind the kitchen, but behind a wall (T71 L16-17). I conclude that the study is the room labelled Bedroom 2 on Exhibit B.
[26] T92 L9
All three were within a 5-7 metre radius or a 10 metre radius square[27]. The television was on in the lounge room, described as being a kitchen and living room, one big living space.
[27] T71 L21 – it is unclear whether the word said is ‘squared’ or ‘square’, but the latter is more consistent with the earlier reference to 5-7 metre radius.
As to which of the rooms labelled as living rooms in Exhibit B is the room in which the television was located, the complainant was asked in re-examination if the diagram (which I conclude is the floorplan, Exhibit B) and the photograph (photograph 63 of Exhibit C) were marked when he made his statement on 16 January 2019[28], and said he ‘kind of remembered doing the floorplan’. However, in his evidence, he was not asked to specifically identify or describe the markings other than the position of the ‘final confrontation’[29], (marked with a ‘star’ on Exhibit B). Given his description of ‘a kitchen and living room, one big living space’, it seems likely that the television was in the living room which on Exhibit B has a line from it to the words ‘argument started/remote’, and which is to the left of the kitchen as one looks at the floor plan (Exhibit B).
[28] T162 L21-28
[29] T162 L31- T163 L1-12
The television was tuned to a music channel. Ms Dunlop changed the channel to watch the news, while cooking dinner. This change of channel angered the accused and he yelled at her. Jonathon said that his father liked to control the channel wherever he was. An argument developed between Mr Henshaw and his wife, and Jonathon heard this.
Initially Jonathon stayed in his room as he was used to arguments, but as it continued, he decided to leave his bedroom to convince them that it was quite silly to argue over a TV channel. The argument got bigger and bigger, and then his father, the accused, got physical. It started from pushing and shoving on his father’s end. Jonathon said he remembered it starting[30] just behind where the couch was in front of the TV. Jonathon was standing next to the couch putting the remote on top of the couch and the accused approached him and pushed him.
[30] Correction to transcript: T71 L10
Jonathon pushed his father back, saying in evidence that it wasn’t a big physical pushback, as he was not too upset at the beginning, and he didn’t want to engage in something physical. He was still wanting to calm the situation down at the early stage.
Straight after the pushing and shoving, it escalated ‘more on [the accused’s] side’[31], more pushing and shoving, kicking and punching, and trying to tackle Jonathon into a wall. All that went on for a period of time.
[31] T73 L14-15
At a much later stage, after a lot of things happened, Jonathon manoeuvred or coerced his father to his bedroom and held the door shut for under an hour, but more than half an hour, hoping that he would calm[32] down.
[32] Correction to transcript: T74 L31
In one of the incidents before Jonathon had got his father to go to his room[33], the accused grabbed a broom and tried to hit Jonathon over the head with it multiple times. It was around this time that Jonathon removed his T-shirt because it was getting so stretched with his father trying to grab him.
[33] Correction to transcript: T73 L10
When Jonathon let the bedroom door open, his father ran out trying to tackle him, found the broom and tried to, or did, hit Jonathon with it a couple of times. Jonathon described his father as coming out of the room in a ‘bulldog’ or ‘animal’ state, shaking, grinding his teeth and spit coming out, which Jonathon said happened through his childhood[34].
[34] T75 L3-6
Straight after his father came out of the bedroom, and tried to attack Jonathon with the broom, Jonathon went to the kitchen, took a knife from the knife block and ‘put it to’ himself, and said “Can you please stop”; “This is what you’re making me want to do to myself” and “This is too far, I can’t deal with this anymore.” His father said he didn’t care. His father was at least 10 metres away near his own bedroom door, but could still see Jonathon in the kitchen. His mother was on the other side, parallel to the kitchen island bar, and she was wanting Jonathon to put the knife down, asking Jonathon to stop and telling him it was all okay.
Jonathon put the knife down, and said that somehow he got into another physical altercation with his father but he could not remember exactly how it started. It did not move too far, because the incident was about two metres from where the knife block was, on the other side of the island bar next to the sliding doors through to the back yard.
His father was near his own bedroom, and because Jonathon thought it was going to finish, he walked away from the island bar, facing ‘toward the lounge room’.
The accused approached Jonathon from behind and grabbed Jonathon, like he was trying to pick him up from the legs, as he had tried to do a couple of weeks prior. He was bending down, holding onto Jonathon’s legs and lower regions, with his arms around both of Jonathon’s legs and ‘backish’ region. Jonathon froze a little bit, and was resisting and his father was not able to pick him up. It was a bit of a struggle and Jonathon remained on his feet for the duration of the struggle.
His mother was beside Jonathon, a metre or so away and the more he tried to push his father away, the more his mother tried to hold Jonathon back by holding his arms back. She was trying to pull Jonathon away from his father, but at stages Jonathon’s arms were free because he was pushing to get his father off him.
The accused was ‘ultra-angry’, in an ‘ultra-aggressive state’, still in that ‘bulldoggish state’ and his hands were moving up and down trying to pick Jonathon up. Jonathon said he was unable to figure out the exact motive of what the hands [were] trying to do. Towards the end of the altercation, his father went down to Jonathon’s lower region and he was grabbing onto Jonathon’s behind to try and help with the picking up, and then the accused ‘entered [Jonathon] from behind’ and Jonathon felt a pain that he has not experienced since. Jonathon could not remember if it was underneath or through his clothing, although he remembered saying previously that it was the outside of his clothing.[35]
[35] T79-81
With his fingers, the accused went from grabbing Jonathon’s behind to try and pick him up, to travelling to Jonathon’s anus. Jonathon was unsure how long his father was “in there…or how far it was…but… it definitely felt like a long way in”[36]. He felt his father’s “finger or fingers where they travelled a fair way up [his] bum”.
[36] Correction to transcript: T82 L2 cf. “a long way, and…”
Jonathon was in a lot of pain from the second it entered and for a while afterwards. Because of the amount of pain and the sensation it was, it felt like forever, but would not have been longer than five to 10 seconds.
At the time of the penetration, Jonathon was still standing upright, his father was still crouching down in an athlete position trying to pick him up and was facing Jonathon’s chest and front area, with his hands around Jonathon’s back. Ms Dunlop was still holding Jonathon’s arms at that point.
When Jonathon felt the penetration, he let out a massive scream, and he did not want to push his mum, but he had to, because he had never felt that sort of sensation before, so he got her hands off him, and got the strength to push his father away. He said, “Once you get that sensation, I suppose you get a little bit more strength[37] to make sure you get out of that position”. Jonathon said he just push[ed], kick[ed] whatever would have been necessary to help get away. His recollection is getting his hands free [to do so] but doing everything possible, whether it was hands free, hips, whatever.
[37] Correction to transcript: T85 L26 cf. “effort” or “effect”
After the scream, there was a little bit of distance between Jonathon and his father, and Jonathon was able to explain what had happened to him, explaining what he felt, and what he knew just happened. His father said he didn’t mean it, that it slipped.
The physical altercation pretty much stopped once the incident occurred. Jonathon’s legs went almost numb, and he fell ‘from [his] feet… in pain and agony’[38]. He said at the moment of it happening, he remembered screaming, falling to [his] knees[39], then after not a large period of time, gathering himself and standing back on his feet.
[38] T87 L5
[39] Correction to transcript: T87 L13 cf. “falling into myself”
Jonathon then left his house as he did not feel safe, and went to a park nearby. From there he telephoned his girlfriend and his grandmother, telling them what had happened – the incident with the penetration. His mother came and found him at the park and wanted him to go back home after his father had fallen asleep. They talked about what happened, and Jonathon was in a state of shock, and said that enough is enough, that it wasn’t safe and he refused[40] to live in the same house.
[40] Correction to transcript: T90 L1
Jonathon spoke to his father the next night and explained what happened and that it was ‘not on’ (the penetration), and his father was telling him that it slipped. Jonathon told him multiple times what his father did and although he could not remember the exact wording, his father was “saying like, his excuses along the lines of it slipped etc. etc.”[41]
[41] Correction to transcript: T93 L10 cf. “saying like, his future’s on the line.”
The complainant was “very sore in his bum region”[42] and was not able to go to the toilet for a couple of days. He found that there was blood “on his behind”[43] when he saw blood on the toilet paper. On 29 June 2017, he took a photograph of the blood he observed on toilet paper (Exhibit A).

Cross-Examination
[42] T93 L21
[43] T93 L25

Jonathon agreed that as at June 2017, he was bigger, taller, a little bit heavier, and stronger than his father. He confirmed that his father has a deformed right hand with only two fingers.
Jonathon confirmed to the best of his knowledge now it was his mother who changed the channel on the television on the night in question, and not him. He was taken to a passage in the committal where, in January 2021, he gave evidence that he, Jonathon, had changed the channel. He said that it was four years ago, and agreed that as time goes on, the recollection is not as clear, and he had given his answer here as to the best of his knowledge right now.
Jonathon agreed that on the night, it was a situation that escalated quickly, but disagreed that he was physical with his father first, and disagreed that he was the aggressor in the subsequent altercation. He said it was a physical altercation, but would not say that it was a two person wrestle, as he was not engaging in a wrestle. He said he highly disagreed that his father was defending himself at all times, and disagreed that the first physical contact was Jonathon pushing his father three times into the chest near the fridge. He highly disagreed that his father was using the broom to push Jonathon away from him.

Jonathon disagreed that his father voluntarily walked into his bedroom, and highly disagreed that his father said he was getting his car keys to leave.
Asked how he ‘coerced’ his father into his room, Jonathon said that he was trying to convince him to go to cool off, verbally telling him to please go in his room to cool down and he, Jonathon, did not want to engage in physical acts. He did not remember the exact point when his father stepped into his room or the way it happened, but around the same time as the broom incident and pushing and shoving on his father’s part, he, Jonathon, was trying to push back and he thought in the moment he pushed in the direction of his father’s room.
Asked if he had ever said to anyone that he did push his father into his room, Jonathon said he did not know who he would have told that to, but it may have happened. When he was referred to his statement to police made on 16 January 2019, where he said that he “ended up pushing hi[s father] into his room and telling him to cool down and stop”, Jonathon said that is close to the event and is probably more accurate, and he accepted he had told the police that.
Jonathon said that when his father is in that ‘bulldog state’, at times he was strong enough to overpower his father, but at others times no, and in the state his father was in that night, it would have been very hard, very difficult, and as Jonathon has never been a physical person, he never wanted to use his strength to overpower anyone.
Jonathon agreed that once his father was in his room, Jonathon pulled on the door so his father could not open it, for 30-60 minutes. Jonathon said his father was pushing on the door very violently saying as soon as he got out he would do things to Jonathon, but he never once cited[44] that he wanted to leave.
[44] Correction to transcript: T109 L22 cf. “it was one sided”
Asked about when Jonathon was holding the knife, Jonathon agreed that he, Jonathon, was agitated, ‘pissed off’ and yelling. Jonathon said that his father was not holding the broom to keep Jonathon away while Jonathon was holding the knife, as that was a different point in time, but in response to a question using the broom as a measurement of length, he said his father was multiple broom lengths away when Jonathon had the knife.
Jonathon agreed that his father was saying things like “Don’t hurt me” while Jonathon was holding the knife, but that was not in response to Jonathon threatening him with the knife, and his father was a big distance away, very much disagreeing that his father was only two to three feet away. Although Jonathon did not recall the exact wording, he said he did not remember the ‘kill’ word coming into play.
Taken to his police statement where he said he put the knife back in the block and [his father] immediately started saying Jonathon was going to kill him with the knife and had threatened him, Jonathon accepted he had said that closer to the event when he might have remembered. He accepted that his father said he was scared of Jonathon.
Jonathon said it would have been a couple of minutes between him putting the knife back in the block, which his mother had convinced him to do, and the physical altercation occurring which led to the alleged penetration.
Jonathon agreed that from what he could feel, his father’s hands were around Jonathon’s waist, buttocks, thigh area and he was trying to lift Jonathon up. Jonathon said that he was trying to stay a little bit still so he wasn’t able to be picked up, but that he would have been moving around to try and stop it. He agreed with the suggestion that he was wriggling around, his mother was trying to grab his arms, and his father was wriggling him, with his hands around Jonathon’s waist and trying to lift Jonathon off the ground.
It was suggested to Jonathon that he could not say which way, where, his father’s face was pointing, and Jonathon’s response was “…time has passed, I wouldn’t be 100 per cent on anything but I’m pretty sure, I’m 100 percent sure, I was facing the TV area…and he was facing the opposite direction which means his face would have been facing me…his hands around me, head facing me. Yes, that’s what would have happened.”[45]
[45] T118 L23- T119 L1
Jonathon said that his father’s head was facing him with his father’s head underneath his chest or stomach and he could not allow for the possibility that his father was not facing him as it wouldn’t have made any sense with his father grabbing his legs.
When it was suggested to him that he could not be 100 per cent that his father was facing him, Jonathon said he would be as close to 100 per cent as you could get. It “wouldn’t be under 70; 80 to 90 per cent”.[46]
[46] T119 L12-15
Defence counsel’s next question was phrased, “Somewhere between 70 and 100 per cent you think he was facing you, correct?” Jonathon’s answer was “Let’s go 90 to 100 if we’re going to put it in stone.”[47]
[47] T119 L16-18
Jonathon said he could definitely see and feel what was happening. He could see his father’s hands getting wrapped around Jonathon’s legs and waist area attempting to pick him up. Jonathon conceded that it was fast moving and people were moving around, saying that it was a confronting scenario, but his father’s hand was definitely on his waist, and his father’s head, and his body was definitely in front of Jonathon and Jonathon’s arm was to his own side.
The moment before it happened, Jonathon said he did feel the grabbing “went up to[his]”[48] bum area trying to lift him up from there, and then he felt that after that was unsuccessful in picking him up, he felt it go in and around the area. He agreed that he could feel his father’s hand grabbing at his leg trying to lift him up, that it then went higher and his father was grabbing at his buttocks trying to lift him up, and then he felt it go higher again and there’s further grabbing and that’s when he felt something at his anus.
[48] Correction to transcript: T121 L15
Asked if it was consistent with the upward pressure he had been feeling from his father as his father grabbed his leg and then his buttocks, Jonathon said, “I suppose I’ll say correct, but it was definitely a different sensation.”[49]
[49] T122 L5-7
Asked again about the mechanics of what his father was doing, that what Jonathon could see and feel was the same upwards pressure, Jonathon said it “did feel a little bit different, it felt from a grab to almost like a poking sensation”[50].
[50] T122 L15-17
Asked whether Jonathon may have moved his body away such that the finger didn’t actually go into his anus, Jonathon said he did feel like it definitely went in. Asked whether there was a possibility that it didn’t go in, Jonathon said he probably wouldn’t agree that it probably wouldn’t have, that the sensation was too painful for it to just scrape the outside; that it did feel like something was inside and it was a very frightening feeling.
He was asked again if it was “possible that maybe it didn’t [go inside]?” Jonathon said “it’s impossible to take a time machine back. But I think before, you told me to put percentages or 90 to 100 per cent, ‘cause it’s too long ago to remember 100 per cent, but I’d probably lean towards above 75 per cent if I was going to say something. But I definitely did not just feel a scratching, ‘cause I suppose if you’re saying that, it almost feels if he was still grabbing my bum and doing – accidentally touching. I still feel like it was - it did go in. I suppose I don’t know the feelings enough to say whether it did or not, but just – yeah, the feeling was – it just feel (sic) too intense of a feeling just to be scratching the outside”.[51]
[51] T126 L7-20
Jonathon said he could not remember the exact words he said to his father (when it happened), but agreed that he said something along the lines of ‘your finger got me in the bum’ or ‘went in my bum’, and his father said something along the lines of ‘it slipped’ and Jonathon does not remember his father being as shocked as Jonathon thought he was going to be.
Jonathon agreed that as soon as he felt something in his anus area he had a strong reaction and started pushing his father away, and as soon as he did that, his father stopped and that finished his father trying to tackle him through the wall.
Jonathon could not now recall whether his father touched him outside or inside his pants, but agreed that he told the police in his statement that his father did it through his pants. He agreed that what he felt was for a small amount of seconds and that it could have been as short as one to two seconds.
Asked if it was possible that what his father did was an accident, Jonathon said he did “not know how you could accidentally… put your finger up someone’s arse and make it bleed”.[52]
[52] T137 L13-16
It was put to Jonathon that he thought that the blood he saw on the toilet paper came from a scratch from the area around the anus; Jonathon correctly stated that he had not said that in his evidence the day before; he then said that it will never be known if it was a cut deep inside or on the outside but it definitely did feel like it did go inside. He said he could not see where the cut was and he had not got someone else to check it out, and volunteered that he never went to the doctor to check it out.
It was suggested to Jonathan that after his father tried to pick him up, that his father fell to the floor, which Jonathon said to the best of his ability he did not remember happening. It was further suggested that after his father fell to the floor, Jonathon put him in a headlock, which he disagreed with, saying that it was completely correct that he did not have his father in a headlock at any stage.
When it was suggested to Jonathon that he had told his father that he had him in a headlock, Jonathon said he definitely did not believe or remember that. He was then taken to an excerpt of the telephone conversation he had with his father, apparently on 12 February 2019, and which was recorded by police[53].
[53] The content of the call was not in evidence.
Before being made aware of the source of the suggestion, Jonathon said, as he had multiple times with respect to things said in his police statement, if he had said that in the past and it is [in] writing, then he may have, but he did not remember saying something like that. When given the context, he said “I can tell you this for sure, at no point did I have him in a headlock[54] to do any damage, or not to my knowledge, no. If I did, I don’t remember”.[55]
[54] Correction to transcript: T140 L3
[55] T140 L1-4
Jonathon agreed that his memory of what took place would have been better on 12 February 2019, and that if he said he had his father in a headlock in the past, count what he said in the past, he did not now remember. He said multiple times if it’s there, go by what was closest to the date, if it says it there, “we’ll accept it”,[56] but he did not remember having his father in a headlock with any intent; he did not remember that at all, he honestly could not recall.
[56] T141 L13-14
When it was put to him that his father told police Jonathon had him in a headlock, and that his father had to reach around behind himself to try to get Jonathon off him, Jonathon responded, “I understand, I just definitely did not, if I did engage in that, that definitely would not have occurred first, so that wouldn’t make sense.”
He further responded by saying “if someone is trying to tackle you and pick you up, before like in previous events, and I’m trying to do something to get him off, I don’t know why then he would have to do a follow up event to prevent what he did in the first place.”
Ultimately, he disagreed with his father’s suggestion, through counsel, that he, Jonathon, ‘instigated with’ a headlock.
It was suggested to Jonathon that based on what he said in the phone conversation, it’s clear that he had his father in a headlock. Jonathon asked to go through it one more time, and arrangements were made for him to have a copy of that part of the transcript in front of him. After that was done and Jonathon had read it to himself, he was asked if he disputed it, and again he said whenever is closest to the event, trust his brain at that stage.
When asked then to confirm that he did have his father in a headlock, Jonathon said, “Yes, sure, I would like to say you know if we continue, it to be in self defence. It wasn’t an instigated attack.” Asked if his position now is that he did have him in a headlock but it was in self defence, Jonathon said, “ It kind of says it in the writing, if it’s read…where it says ‘whether you were struggling because I had you in a headlock because I was trying to get you off my leg’…I suppose that’s how it says it in the writing.”[57]
[57] T148 L22 – T149 L3
Asked then if his father was facing him or away from him, because it would be hard to have someone in a headlock if they were facing you, Jonathon said he hardly remembered the phone conversation, but his recollection is his father was facing him. He repeated that he did not remember the headlock, but that obviously it must have happened. He did not agree that his memory was ‘way different’ now that the headlock part had been shown to him, that with what was happening, that must have been one of the instinctive things he must have done to get his father off him.
He repeated that if he did it, and then said “obviously it says I did. If I did, it would have been to get him off my legs as it said in the phone call transcript”.[58] Asked if he accepted now that his sworn evidence was wrong, Jonathon said, “We’ll go off what is closest to that date. But that’s all I can – honestly, I can’t remember.”[59]

Re-examination
[58] T150 L21-26
[59] T150 L30 – T151 L1

Jonathon was taken to another reference to a headlock in the telephone conversation with his father. The relevant part is Jonathon saying ‘but if I really was going to put you in a headlock, I would, I could put you to sleep’. He was asked if that assisted him with his memory of the type of headlock, and Jonathon said that he really couldn’t remember, but given his height and weight, if he wanted to, he could have. He repeated that he honestly did not remember it too well, that part.
He was then asked if he now said that there was a headlock just prior to the penetration of his anus or not, and Jonathan said that all he could remember is his mother holding his hands, and having to push off…all he could vividly remember is having to push his father off to get him off.
Jonathon was asked to explain what he meant by ‘a poking sensation’ in his earlier answer in cross examination, that it went from a grab to almost like a poking sensation, and he demonstrated that it went “from like that (hand with palm turned upwards and fingers partly closed towards palm in a grabbing motion) to like an upward sensation” (changed to hand with one finger pointing and other fingers closed and an upward movement of the hand); it did not feel like a grabbing, picking up sensation. He added, it felt like a grab, to like, inserting.[60]
[60] T156 L12-31
Asked if he could confirm that he could not say if ‘the scratch’[61] was outside or inside, Jonathon said it was embarrassing someone doing that to you, and it was a bit hard to look back there; all he knew was that it was very, very sore and didn’t feel the same for a while. It didn’t feel faint, afterwards there was more, and he just didn’t want to keep on searching. He had not had to do a hard wipe or go far to get the blood on the toilet paper. He was sore there for a week or two, so did not want to wipe it too intensely.
[61] I do not think that the witness ever agreed that it was a scratch, as implied in this question.
The prosecution were then given permission to show the witness the photographs and floor plan which became Exhibits B and C. Jonathon indicated on page 63 (part of Exhibit C, showing the kitchen) that the knife block was on one side or the other of the gas cooktop. Jonathon said his father was standing about where the white wall is on page 63 when Jonathon was at the knife block. Shown the floor plan (Exhibit B), Jonathon said that his father’s bedroom was that marked Bedroom 1, and that his father was at the white wall near his bedroom door, more than a few metres [away] but able to have a line of vision to where Jonathon was in the kitchen behind the island bar, arm’s distance away from the knife block.
He agreed that the ‘diagram’ (which I have already concluded is the floorplan, Exhibit B) and the photograph were marked when he made his statement to police on 16 January 2019. He was also shown page 62 (part of Exhibit C, showing the island bar and sliding doors to outside). Jonathon said that the bit of white wall before the sliding doors is where the penetration happened, on “that star”.

Further cross-examination

As Exhibits B and C were put into evidence during re-examination, defence counsel was given leave to further cross-examine, and to ask questions overlooked in earlier cross examination.
The following day of the trial, I was advised that Jonathon Henshaw was not required to be recalled as to Exhibits B and C.

Karen Dunlop – the complainant’s mother and former wife of the accused

Examination in chief

Ms Dunlop said that she and Gordon Henshaw were married for 24 or 25 years and she agreed that throughout the marriage, there were regular arguments between them, which Jonathon probably became more involved in as he got older.
On 28 June 2017, she said she was probably doing dinner, in the kitchen. Jonathon probably would have been in his room, if his father was home. Gordon was in the study or computer room (which I have already concluded is the room labelled ‘Bedroom 2’ on Exhibit B).
Ms Dunlop said she would have had the television on the news but once Gordon got home, he would always just turn off whatever they had on and put it on to a music channel. She was sure she asked Jonathon to put it back on the news for her because Gordon was not in the room.
Gordon came out of the other room and “went nutto”[62] because they changed the TV. She was not asked to describe what she meant by ‘nutto’, but agreed that Gordon was yelling. She thought it was just her in the kitchen, and when the yelling started, Jonathon came out of his room. Gordon continued yelling and putting Jonathon down, while Jonathon was telling Gordon to stop, [saying] why all this carry on about a TV channel when he wasn’t in the room.
[62] T172 L4
Ms Dunlop said that in response to what Jonathon said, Gordon got more and more angry, kept yelling, and then went into fits of rage. She said that Jonathon and Gordon were standing in the lounge type of area, and Gordon started trying to grab Jonathon. She thought Jonathon pushed him off and tried to get towards his room, but she could not remember what happened in what order and when. She thought Jonathon tried to move backwards but the way the house was set up, it was very hard to get away from people. She said it went on for quite a long time, probably a couple of hours all up.
Asked if she became physically involved when Gordon was trying to grab Jonathon, Ms Dunlop said she thought she did get in between [them] and told Gordon to leave Jonathon alone. Asked if she tried to pull Jonathon away, she said yes, or get him so Gordon wouldn’t keep going at him.
Ms Dunlop confirmed that Gordon had a broom at some stage, swinging it around or holding it. She was sure that Jonathon tried to get back to his room at some stage, and at some stage Gordon [went] into their room and came out again, but she did not know in which order things happened.
She said that the altercation started somewhere where the kitchen bench and fridge is, but it ended up on the wall in the second lounge room area, closer to the front door and bedroom. She did not know how they got from one to the other.
There was a lot of yelling but she cannot remember a lot of it. At one stage Jonathon started screaming, a very loud scream, sort of at the end of the physical altercation between him and Gordon. Jonathon said something like ‘why did you do that to me?’ She said Jonathon screamed, went down to the ground, and then ran out of the house.

Ms Dunlop said she went looking for him, and found him in the rain at a park at the end of their street. They were there until 2 or 3 in the morning as Jonathon did not want to go home. She said she asked him about the scream, and Jonathon said that his father had raped him, that his father stuck his finger up [Jonathon’s] anus. She said that was the first time that she was aware of exactly what happened because when it was going on, she couldn’t really see, and there was a lot of noise.
When they went home, she stayed the night in Jonathon’s bedroom. She thought they discussed more about the alleged penetration the next day, but could not remember a lot of the discussions. She did remember Jonathon showing her a photo of [toilet paper] with some blood on it the following day (Thursday), and telling her that he couldn’t use his bowels as it hurt too much.
That following day, after he had spoken to his grandparents, her parents, she took Jonathon to their house.
Asked if she recalled calling a psychologist 5-6 days later, Ms Dunlop said she was sure it was on the Thursday (the day after) as 5-6 days later she, Ms Dunlop, would have been at work. Ms Dunlop said she rang because she knew that Gordon was seeing the psychologist, and she was trying to get help for him. She said the behaviour wasn’t normal, the “fits of temper when he’s spitting and getting so strong wasn’t normal.”[63]
[63] T180 L16-20
Ms Dunlop said she was unable to remember the detail of what she said when she rang the psychologist. She said she had no idea if Jonathon was present when she made the call, but if she made the call from home, Jonathon would have been in the house.

Cross examination

Asked if she tried to get Jonathon into his room during the verbal argument but he refused to go, Ms Dunlop said possibly; she was sure he went to his room at some stage, but the yelling at her continued and Jonathon came out again.
Ms Dunlop said she had no idea what Gordon was doing with the broom.
She said that at some stage when Gordon went to his room, or somewhere, not in the vicinity, Jonathon got a knife and was holding it at his own arm saying he’d had enough, he can’t keep doing this.[64]
[64] T183 L5-10
Ms Dunlop had no idea if Gordon walked into his room voluntarily, and when asked if he said he was going there to get his car keys, she said the car keys were never kept in the bedroom, they were always in the kitchen on a hook.
Asked about positioning of Jonathon and Gordon, and if a ‘wrestle’ was an accurate way to describe it, Ms Dunlop said possibly, but she could not remember exactly positions other than the end of it was on the wall near the fish tank and the ‘second lounge room’.
Specifically asked if she recalled seeing Jonathon having Gordon in a headlock, Ms Dunlop said she did not remember that. Pressed on that, she said she had no idea, she honestly couldn’t remember, and asked if she remembered whether Gordon was facing Jonathon or away from him, she said she did not remember, and was just wanting it to stop.
Asked to confirm that she heard Jonathon scream out but did not actually see what caused that, Ms Dunlop said that was correct, but she’ll believe what her son tells her.
She said that at the park, Jonathon had said words to the effect of his father raping him, such as ‘he stuck his finger up me’; he was saying a lot of things, ‘he raped me’, ‘he’s hurt me again’ and was very, extremely distressed, sitting in a park in the rain in the middle of winter.
Ms Dunlop was informed that the psychologist had made a statement repeating some of the things she noted Ms Dunlop as saying in the telephone call, and Ms Dunlop said she did not know that and didn’t think the psychologist would be allowed to [make a statement repeating some of the things she said were part of a conversation with Ms Dunlop]. The following matters were put to Ms Dunlop:
·that she indicated to Ms Copperwaite that a fight had occurred involving Jonathon and Gordon - Ms Dunlop said possibly;
·that Ms Copperwaite noted that Jonathon could be heard yelling in the background that [his father] raped [him] - Ms Dunlop said she could not remember it;
·that Ms Copperwaite noted she, Ms Dunlop, yelled back at Jonathon ‘he did not rape you, you grabbed your father first’ - Ms Dunlop said that she could not remember it, questioned how Ms Copperwaite could remember things from that long ago, and that if she was going to write things down and use them against Ms Dunlop, Ms Dunlop never would have rung her;
·that Ms Copperwaite noted she, Ms Dunlop, said Jonathon had grabbed Gordon’s body and bum cheek first - Ms Dunlop repeated she could not remember it, and that if she knew that someone was going to write these things down and use them against [them] years later, when [they were] trying to get someone help, she would recommend that no-one ever tries to get people help;
·that Ms Copperwaite noted [she, Ms Dunlop, said] Jonathon had Gordon in a headlock - Ms Dunlop repeated that she did not remember it, and that if she knew that Ms Copperwaite would be making things up and using things against [them] she will never, and will recommend to anyone, never to try and get help for people;
·that Ms Copperwaite noted she, Ms Dunlop, said to get away from Jonathon’s headlock, Gordon’s fingers grabbed the cheek of Jonathon’s bum - Ms Dunlop repeated that she could not remember the phone call, did not know how Ms Copperwaite remembered it this much later, and would recommend that no-one ever try to get people help because obviously it gets used against you, that you try to do the right thing and get help, and this is what happens;
·that Ms Copperwaite noted Jonathon yelling out (in the phone call), ‘He fucking raped me’ - Ms Dunlop asked if she had to repeat herself again, that she did not remember the phone call, and how did Ms Copperwaite remember it, and without saying at the time that she was going to write this down and use it against [them], Ms Dunlop did not see how this had happened; and
·asked if she recalled saying/yelling back at Jonathon, ‘This didn’t happen. It was an accident, Jonathon’, Ms Dunlop said no, she did not.[65]
[65] T186 L15 - T188 L3
Ms Dunlop agreed that she was standing close to Jonathon and Gordon and could see most of what was happening, and asked if, after Jonathon screamed, Gordon said something like “it was an accident’, Ms Dunlop said she could not remember that, she could not remember anything Gordon said.

Katie Dunlop – grandmother of the complainant

Evidence in chief

Mrs Dunlop said she spoke to her grandson, Jonathon, when he phoned her about 10.30 or 11pm on the Wednesday. She said he was upset and crying. He told her that he had been sitting on the couch, and Gordon was asleep, and Jonathon changed the channel on the television which disturbed Gordon, who got up and tried to attack Jonathon, putting his hands around Jonathon’s neck. When Jonathon got up and walked towards his room, Gordon pushed him towards the wall and put his finger up his backside.
The following day, Jonathon spoke to her and his grandfather together about what happened the night before. She said he was quite hysterical. She said he showed her a photo of blood going down his leg. He said he felt kind of humiliated, sore, that it hurt him physically and mentally. He said it was very painful.

Cross examination

Mrs Dunlop confirmed the account she said Jonathon had given her, including that Gordon had got on top of Jonathon and put his hands around Jonathon’s neck. Asked if Jonathon had said anything about Gordon in a headlock, she said no.

Lana Marshall[66] – the complainant’s girlfriend

[66] A pseudonym

Evidence in chief

Ms Marshall said she got a phone call from Jonathon about 9.30 or 10 o’clock on the Wednesday evening. Initially it was a lot of confusion, she could just hear him crying, very upset, in a real state of confusion and frustration. He said he had been sexually assaulted or raped by having his father put his finger in Jonathon’s anus, and that beforehand he had been chased around the house with a lot of anger going on.
Over the following days, he said [to her that] there was pain involved, that he was still sore. He told her that it was bleeding and she told him to try and take photos if he could.
Ms Marshall was not cross examined.

Pamela Copperwaite – the accused’s psychologist

As previously mentioned, Ms Copperwaite’s evidence was received as an agreed fact, being parts of her statement to police dated 27 August 2019. I reproduce the agreed fact in its entirety as read by the prosecutor:[67]
“My full name is Pamela May Copperwaite. I'm a legally qualified psychologist, and I've worked for 31 years as a psychologist in the clinical and forensic area. Gordon Henshaw has been my client since August 2008. Karen, [referring to Karen Dunlop], rang me around 3 July 2017. It was the first and only contact I have had with Karen Dunlop. I process recorded the phone call, as I normally do[68] with phone calls, onto a notepad.
To this day I recall the phone call because of the chaotic nature of the call. Jonathon could be heard in the background yelling out angrily, and Karen was attempting to keep him quiet as she spoke. Karen asked me if I was Gordon's psychologist. Karen stated that she was worried about Gordon's mental state. Karen stated that she had found my card at home. I stated that I was previously Gordon's psychologist. Karen indicated that a fight had occurred involving her son and Gordon. Jonathon could be heard in the background yelling out, ‘he raped me’. Karen was yelling back at him, ‘he did not rape you, you grabbed your father first, be quiet Jonathon’. Jonathon could be heard swearing in the background. He was swearing in relation to his father.
Karen told me that Jonathon had grabbed Gordon's body and bum cheek first, and that Jonathon had Gordon in a headlock. Karen talked in such a way as if she was explaining to both me and Jonathon what had happened. I asked Karen, ‘What is going on?’ Karen stated that to get away from Jonathon's headlock, Gordon's fingers grabbed the cheek of Jonathon's bum. Jonathon then yelled out, ‘he fucking raped me’. Karen yelled back with exasperation at Jonathon and said that this did not happen, ‘it was an accident, Jonathon’.
Karen then proceeded to tell Jonathon off for saying the comments, and for swearing while she was talking to me. Karen said to Jonathon loudly, "you grabbed your father first". I interrupted the three way conversation, and asked Karen if she and her son would come in for family therapy with Gordon. Karen ignored my request, and the call ended with me strongly encouraging them all to come in.”
[67] T207 L18 – T208 L26
[68] Correction to transcript:T207 L25

Detective Acting Senior Sergeant Kenneth Campbell – the investigator

Mr Campbell outlined the background to the investigation, produced the edited copy of the audio visual recording of the interview other police officers conducted with Mr Henshaw on 2 August 2019 (Exhibit D), and provided evidence of the good character of Mr Henshaw which I referred to in my directions.

Record of Interview

I repeat that matters advanced in questions in the interview, whether from the statement of the complainant, or the recorded telephone conversation between the complainant and his father, are not evidence before me, unless Mr Henshaw adopted them in his answers, or there is direct or indirect evidence of the matters.
I watched the interview when it was introduced into evidence, and watched it again in the process of assessing the evidence for my judgement in this trial.
My summary of Mr Henshaw’s answers in the interview follows.
Mr Henshaw said that of the 26 years of marriage to Karen, 14-15 years had been good, but the last 10 years were a little bit difficult with Jonathon, and it was ‘rocky roads’ at the end. He described Jonathon as a big boy, quite tall, quite strong, and that ‘we’ (by which I conclude he meant he and Jonathon) would regularly have arguments over minor issues that escalated, and it got pretty dangerous towards the end[69].
[69] A11
He clarified that last comment to mean Jonathon pulling a knife on numerous occasions wanting to harm himself, because Mr Henshaw and Ms Dunlop would argue and Jonathon would interfere, and Jonathon pulled a knife numerous times on Mr Henshaw and he, Mr Henshaw, was quite scared of the situation[70].
[70] A12
Asked if he recalled the day of the alleged incident, 28 June 2017, Mr Henshaw said he did actually recall, quite well[71].
[71] A15
Asked what occurred that day, he said to the best of his recollection, he and Ms Dunlop were arguing over some minor issue, he was not too sure what. Jonathon came out of his bedroom and pushed him, and said “Stop arguing with [my] mum”. Mr Henshaw pushed him back and it escalated where they were pushing and shoving each other, and Mr Henshaw was scared for his safety because Jonathon is a big boy. It kept going on for about 15 to 20 minutes, arguing and pushing each other out of the way. Mr Henshaw wanted to get out of the situation. He got a bit hot tempered, Jonathon got a bit hot tempered, they were pushing and punching each other. They got into a situation where Jonathon had him in a headlock on the ground; because of his right hand, Mr Henshaw could not defend himself, so what he did was lean around the back and basically try to grab Jonathon here (demonstrating left side of buttocks) and get Jonathon off him. Mr Henshaw’s hand slipped and “went into [Jonathon’s] bum, supposedly”. Essentially, Jonathon had Mr Henshaw in a headlock from behind, he couldn’t defend himself with his right hand, he leant over, fell over and tried to get out of – that’s what occurred. There was no malice in that, it was self defence to protect himself.[72] This account was repeated in other answers: A20, 21, 27, 152, 200, 211-216.
[72] A16-18
Immediately following the first account in Answer 18, Mr Henshaw said the account can be corroborated with Pam Copperwaite, his psychologist. He said that he went to see her on numerous times throughout [the] marriage, trying to rekindle it and the wife wouldn’t come. He said there was a time – if memory serves him right – when Ms Dunlop rang Pam Copperwaite and was discussing what was occurring. Jonathon got on the phone at that time with Pam and said “Dad did this to me”. Then Ms Dunlop [said] “No, you had him in a headlock, it was self defence.” He said if his memory serves him right, that’s what Pam could corroborate. She spoke to Ms Dunlop. [Pam’s] a clinical psychologist.[73]
[73] A18-19
Asked what he meant by ‘put his hand up Jonathon’s bum’, Mr Henshaw responded he, Mr Henshaw, was in a headlock from behind, he grabbed Jonathon from here (demonstrating left buttock) and Mr Henshaw’s hand slid when he rolled on the ground (demonstrating hand sliding down back of leg). Mr Henshaw didn’t purposely go up there to hurt him, it slid[74]. Mr Henshaw clarified that by ‘up there’, he meant on the edge of the buttocks.[75]
[74] A 23
[75] A24-27
Unfortunately, the video does not pick up all of Mr Henshaw’s demonstrations of where he said his hand slid, as the movements are sometimes blocked by a chair or the bottom of the screen. I have described those I can see clearly.
Asked what happened next, Mr Henshaw said that Jonathon said he tried to sexually assault Jonathon, and Mr Henshaw said he didn’t, he was doing self defence and it occurred in an argument situation where there was no intent for penetration, putting the finger up the bum, in any way. He told police that he is not that type of person. Jonathon said he was bleeding and Mr Henshaw did not agree with that. His hand went on the edge of the bum. It definitely did not go up the bum.[76]
[76] A28-30
Asked what happened after that, Mr Henshaw said that it got pretty heated, if his memory serves him right, and appeared to pause to think. He then said Jonathon was upset, he was upset, Jonathon said he was thinking of going to a doctor and Mr Henshaw said Jonathon could do what he wanted. Mr Henshaw repeated that there was no malice and it was a very dangerous situation. There was no intent in any capacity to do that, it was in the heat of the moment where his hand was on Jonathon’s bum trying to pull[77] away, it slid down there and that was it.[78]
[77] Correction to ROI transcript: ‘pull’ cf. ‘it’.
[78] A33
Before the scuffle, Mr Henshaw said he tried to push Jonathon away with a broom. He said he was trying to get away, Ms Dunlop was trying to separate them; he said ‘go away’ with the broom, tried to defend himself[79].
[79] A35
Mr Henshaw was asked how much before the incident it was that he was trying to defend himself with the broom, and he said he really could not recall, and pressed on this, said it would only have been a couple of minutes, if memory serves him right. He said it was a long time ago, and he could not recall if he was trying to defend himself with the broom during or after it.[80]
[80] A36-38
Asked what was actually happening that required him to use a broom at that point, Mr Henshaw said they were arguing ‘big time’ and Ms Dunlop was trying to settle Jonathon down and settle Mr Henshaw down and they just got very, very heated. He couldn’t recall what they were arguing about. They argued a lot.[81]
[81] A39-40
He said the confrontation started in the kitchen and moved throughout that area of the house to the front lounge room.[82] Asked what happened in the kitchen, he repeated that he and Ms Dunlop were arguing, that Jonathon came out of the bedroom, pushed Mr Henshaw, they started pushing each other and they got into a ‘bit of a barney’ and it just continued. Asked if that was when the broom came into it, he said that he could not recall if it was before or after it, but it would have been, it was, to defend himself at the end of the day.[83]
[82] A41-44
[83] A45-46
Asked to describe the actual scuffle, Mr Henshaw said it was pushing and shoving and grabbing each other, with Jonathan pushing and grabbing him first. Mr Henshaw then grabbed Jonathon probably around the head, shoulder, but did grab him on the bum when he was in the headlock.[84] He said it was a confrontation, it was pushing and shoving, punching, ‘the whole box and dice’[85].
[84] A49-51
[85] A53
Asked where the alleged sexual assault occurred, Mr Henshaw said it was near the window. He was on the ground near a chair in the headlock, in the front living room.[86]
[86] A56
He did not immediately reply when asked what occurred after the incident; and when then asked what happened after they continued to argue, Mr Henshaw said he could not remember what occurred after that: Jonathon may have gone to his bedroom, he may have gone out with Ms Dunlop, he may have gone for a walk, he could not recall as it was a long time ago.[87]
[87] A58-59
Mr Henshaw described his right hand, having three fingers removed at birth due to there being no bone joints, following his mother’s ingestion of thalidomide during her pregnancy. In response to a question whether that would affect his ability to defend himself, he said undoubtedly it would, and that he was not a very strong person.[88] He also described the height difference between him and his son, saying Jonathon was a big boy, and Mr Henshaw feared for his safety on numerous times.[89]
[88] A61-66; 73-75
[89] A66-70
Mr Henshaw followed up his comment that he was not a very strong person by referring to the situation in regard to the headlock, “when you are pinned on the ground and gasping for breath, you think it could be over, well, you are going to grab ‘here’ (demonstrating grabbing of left buttock), you are going to grab somewhere (demonstrating grabbing of left lower back above buttock) to get yourself off that person”. So, he said, he was not very good at defending himself.[90]
[90] A76
Asked where his hand slid to when he placed his hand on Jonathon’s bum, between his cheeks? Near his anus? Mr Henshaw replied it was near his anus.[91] Mr Henshaw said Jonathon was wearing ‘trackie’ bottoms or shorts, he was not a hundred per cent sure, but that it was over his clothing, it was no way inside the clothing[92]. He said he used minimal force, 3 or 4 out of 10, 10 being maximum force.[93]
[91] A77-80
[92] A81-84
[93] A85-55

What do I accept from the evidence of Ms Copperwaite, as opinion or otherwise, and what weight do I give it?

Before the trial commenced, I ruled this evidence admissible pursuant to section 66 Evidence Act. In the trial, the part of Ms Copperwaite’s statement that became evidence was led by agreement, due to the witness’s unavailability on the day she was to be called, and because there would not ‘really be’ any cross examination.
It is a matter for me, first, whether I accept what Ms Copperwaite noted was said by Ms Dunlop and by Jonathon; next whether I accept it as opinion; and, then, if I accept it, whether as opinion or out of court representations, what weight attaches to the evidence that I have accepted.
I turn first of all to the purported utterances of Ms Dunlop. While the evidence was read as an agreed fact, that means only that there is no dispute that Ms Copperwaite ‘process recorded’ the phone call onto a notepad and the statement records what those notes showed. It remains for me to be satisfied that what Ms Copperwaite noted, was said.
I do not accept that Ms Dunlop uttered some of the words attributed to her and noted by Ms Copperwaite, for the following reasons:
·Ms Copperwaite is the person said to have received the out of court representations of Ms Dunlop, but because Ms Copperwaite was not available to be questioned, I cannot take her demeanour into account, nor her response to cross examination;
·further, there is no evidence before me as to whether the typed notes on which the agreed fact was based were checked by Ms Copperwaite for accuracy against her memory and handwritten notes at the time the typed notes were created by her secretary, which was two years before she made her police statement;
·there is evidence that Ms Copperwaite recalled the phone call because of its chaotic nature, but that very description raises a doubt about the accuracy of her handwritten notes;
·it was the first and only contact Ms Copperwaite had with Ms Dunlop (and, I conclude, Jonathon) so she had no frame of reference other than any history she took from her client;
·I did observe Ms Dunlop’s demeanour in giving evidence and her response to cross examination and find that she was doing her best to recollect the events of 28 June 2017 and the days thereafter;
·despite Ms Dunlop not remembering the contents of the phone call, she did recall, and reiterated in her evidence, the purpose of the call, and when it was suggested to Ms Dunlop from the contents of Ms Copperwaite’s notes that Ms Dunlop said in the phone call that Jonathon had Mr Henshaw in a headlock, Ms Dunlop suggested that Ms Copperwaite was making things up;
·the statements attributed to Ms Dunlop that “she was worried about Gordon’s mental state” and “that a fight had occurred involving her son and Gordon” are
oconsistent with Ms Dunlop’s evidence that while she did not now recall the contents of the phone call, she was adamant that the reason for the call was to seek help for Mr Henshaw because, she said, the behaviour wasn’t normal, the “fits of temper when he’s spitting and getting so strong wasn’t normal”[112], and
[112] T180 L16-20
oinconsistent with what she is noted by Ms Copperwaite as saying later in the phone call;
·in my view, other differences between what Ms Copperwaite noted as being said and the evidence before me on various topics tell against acceptance of the put of court representations, for example:
oin her statement Ms Copperwaite said Mr Henshaw “has been her client since 2008”, and later in her statement, she said she stated to Ms Dunlop that she was “previously Gordon’s psychologist”;
othe consistent evidence between Ms Dunlop and Jonathon as to who grabbed who first (as I have found) as opposed to Ms Copperwaite’s note of Ms Dunlop telling her that Jonathon grabbed Gordon’s body and ‘bum cheek’ first;
othe statement attributed to Ms Dunlop of Jonathon grabbing his father’s ‘bum cheek’ was not consistent with Jonathon’s account, nor Mr Henshaw’s account in his interview;
othe attribution of emotions or negative descriptions is not indicative of an objective, impartial or unbiased noting of what was said, for example: Ms Dunlop “talked in such a way as if she was explaining to both [Ms Copperwaite] and Jonathon what had happened”; Ms Dunlop was “yelling back with exasperation at Jonathon”;
ofurther, those negative descriptions are inconsistent with Ms Dunlop’s evidence that she:
Øwent looking for Jonathon when he screamed, went down to the ground and then ran out of the house on the night of the altercation;
Øsat with him for hours in the rain in the middle of the night when she described him as extremely distressed;
Østayed the night with him in his bedroom when they eventually returned to the house after Mr Henshaw had gone to sleep;
Øtook him to speak to his grandparents the next day when they wanted to know what was going on;
Ødiscussed with him his ongoing pain and inability to move his bowels because it hurt too much; and
Øwhile she heard him scream, but did not actually see what caused that, will believe what her son tells her.
These reasons for not accepting that Ms Dunlop uttered some of the words attributed to her and noted by Ms Copperwaite are matters I take into account in deciding if Ms Dunlop was heard by Ms Copperwaite to say “It was an accident, Jonathon”.
The defence rely on that note of Ms Copperwaite as a hearsay opinion expressed by Ms Dunlop. If it is accepted that Ms Dunlop said this, it could also be seen as a previous inconsistent version of Ms Dunlop.
The prosecution submit that there is no basis for the opinion and that parts of what Ms Copperwaite noted as being said by Ms Dunlop were inconsistent with Jonathon’s evidence, and in part, inconsistent with Mr Henshaw’s account.
I indicated earlier that it is a matter for me whether I accept what Ms Copperwaite noted was said by Ms Dunlop. For the reasons I have set out, I do not accept that Ms Dunlop uttered the words, “It was an accident, Jonathon”. For the same reasons, I do not find that the purported utterance is an inconsistent version undermining the credibility of Ms Dunlop.
Even if I did accept that Ms Dunlop said it, I find that the note of Ms Copperwaite is not admissible as a hearsay opinion of Ms Dunlop, because
·it does not fulfil the dual requirements of section 78 Evidence Act:
othere is no basis in the evidence for, or facts offered in support of, the purported opinion that Ms Dunlop is noted as having expressed, either from Ms Copperwaite’s agreed evidence from her notes, or from Ms Dunlop’s evidence, and
othe purported opinion is not necessary to obtain an adequate account or understanding of Ms Dunlop’s perception of the event, which I find she described to the best of her recollection in her evidence, and which is inconsistent with the purported opinion.
If I did accept that Ms Dunlop said it, then for the reasons I have expressed, I would give little weight to the evidence.
Turning to the purported utterances of Jonathon noted by Ms Copperwaite, it is consistent with Jonathon’s evidence that he would be yelling and swearing and saying that his father raped him, in the background of a phone call made to his father’s psychologist within days of the altercation, in which help for his father was being sought. The utterance that his father raped him is admissible as hearsay opinion, as I find it meets both limbs of section 78 Evidence Act. I give that evidence some weight, going to the consistency of the complainant.

Did Jonathon have his father in a headlock?

It is in dispute whether Jonathon had his father in a headlock at all, and in particular, at the time of the alleged penetration or touching.
While not a fact in issue, it is an issue that affects the complainant’s credibility, which is principally linked with the fact in issue of whether there was penetration, and, to a lesser extent, linked to the fact in issue of whether the act was intentional, for which there is no direct evidence and the prosecution rely on inferential reasoning.
Further, the issue is crucial to Mr Henshaw’s defence that while struggling to free himself from his son’s headlock, he grabbed his son on the buttocks, and in the course of the physical altercation, his hand slipped and touched his son near his anus: hence there was no penetration, and any act of touching in or near the anus was accidental, not intentional.
In summary, the evidence on this issue comes from Jonathon’s evidence, the purported utterance by Ms Dunlop in the call to Ms Copperwaite, and the account of the accused in his interview.
Turning to the evidence of Jonathon first, I accept the evidence of Jonathon that after putting the knife back in the knife block, he thought it was going to finish and he walked away from the island bar ‘toward the lounge room’, which I conclude on all the evidence meant that Jonathon was walking in the direction of his bedroom. I accept his evidence that his father then approached him from behind and grabbed him in the type of rugby tackle as he described. In the altercation that ensued, they moved to the area where the ‘final incident’ happened.
I accept the evidence from Ms Dunlop that, although she could not now remember the order in which things happened, she was sure that:
·Jonathon went to his room at some stage, but the accused continued yelling at her, and Jonathon came out again;
·Jonathon tried to get back to his room at some stage;
·Jonathon pushed his father off him and tried to get towards his room, but the way the house was set up, she said it was very hard to get away from people.
I accept the evidence from Jonathon and Ms Dunlop that she was trying to pull Jonathon away from his father on occasions during the long time that the altercation continued, and accept Jonathon’s evidence that at stages, his arms were free, because he was pushing to get his father off him.
I accept the evidence of Jonathon that at the time of the alleged penetration, he was standing upright, his father was still crouching down trying to pick Jonathon up and was facing Jonathon, and that Ms Dunlop was holding Jonathon’s arms at that point. I accept Jonathon’s evidence that while conceding that it was fast moving and people were moving around, and it was a confronting scenario, his father’s hand was definitely on his waist, and his father’s head, and his body was definitely in front of Jonathon and Jonathon’s arm was to his own side. I accept that Jonathon had to push his mother to get her hands off him to enable him to push his father away after the alleged penetration.
In accepting this evidence, I have considered the cross examination of Jonathon on this issue, and in particular the questions about percentages of certainty. While this was first raised by the witness in an answer[113], it was a concept picked up by the questioner in following cross examination. I did not find those questions, and the answers to them, at all helpful as the fact finder. It is for me to determine what constitutes a reasonable doubt in my mind, and that task cannot be seen to be influenced by the adoption of a process of questioning which may submerge me in a decision which essentially rests upon a ‘pseudo mathematical assessment of probabilities’.[114]
[113] T118 L23-T119 L1
[114] R v Cavkic (2005) 12 VR 136; [2005] VSCA 182
Having said that, I am not required to be satisfied about this issue beyond reasonable doubt, and the answers given by Jonathon – that he was ‘100 percent sure’, and when pressed on that, ‘as close to 100 per cent as you can get’, and ‘90 to 100’ that Mr Henshaw was facing Jonathon, with his head facing Jonathon - have not affected my finding on this issue.
The evidence I have outlined in paragraphs 273-279 above is relevant to consideration of the question whether Jonathon had his father in a headlock. If at the time of the alleged penetration, Jonathon’s arms were at his own side, being held by his mother, and his father was facing him, it is unlikely that he had his father in a headlock. However, it is not conclusive, and the direct puttage to Jonathon, and his responses to that, as well as the other evidence on this topic must be considered.
I have summarised Jonathon’s response to the puttage from the recorded phone call with his father at paragraphs 142-154 above and I will not repeat that.
I find the following:
·Jonathon did not distinctly admit that he had said to his father in the recorded telephone call that he had him in a headlock;
·while what he said about this was similar to his response to other previous accounts, to the effect that reliance should be placed on the earlier version as it was closer in time to the event, he was equivocal about whether the passage he was taken to did amount to him saying to his father that he, Jonathon, had his father in a headlock – for example, saying a number of times, “if I said that[115]” - and after being questioned about this, and shown the passage in the transcript of the recorded phone call that the defence relied on, he maintained that he did not remember saying that, and did not remember doing it;
·his response on being shown the transcript included in effect that if he said that, and if he did that, it must have been in self defence, to get his father off his legs, as it ‘kind of’ said in the passage shown to him[116].
[115] T140 L17; T141 L12-13, L19; T149 L12-13; T150 L21-26
[116] T148 L24-31 – T149 L3
I find that the passage put to the witness from the recorded telephone call with his father is equivocal; it could mean that Jonathon is incorporating his father’s account in the discussion about the event, or it could mean that he is saying that he had his father in a headlock.
However, that second interpretation would be inconsistent with Jonathon’s evidence in re-examination. After he had been taken, in cross-examination and re-examination, to passages in the recorded phone call with his father, Jonathon was asked if he now said that there was a headlock just prior to the penetration of his anus or not, and Jonathan said that all he could remember is his mother holding his hands, and having to push off…all he could vividly remember is having to push his father off to get him off. As I said earlier, having his mother holding his hands is inconsistent with him being able to have his father in a headlock.
I turn to consider the other evidence on this topic in order to reach my finding on the question of whether Jonathon had his father in a headlock.
The next piece of evidence is the purported utterance of Ms Dunlop as heard and noted by Ms Copperwaite, that “Jonathon had Gordon in a headlock”.
I am unable to find that Ms Dunlop said to Ms Copperwaite that Jonathon had Gordon in a headlock.
That is for the same reasons I had difficulty in accepting that Ms Dunlop uttered some of the other words attributed to her and noted by Ms Copperwaite. Further, I have reached that decision principally because that utterance is inconsistent with other evidence from Ms Dunlop and Jonathon which I am satisfied about, such as who the initial aggressor was. Further, I am satisfied as to the truthfulness and accuracy of Ms Dunlop’s evidence summarised in the six passages in the last dot point in paragraph 264, which is inconsistent with her saying that Jonathon had Gordon in a headlock.
The next piece of evidence is the accused’s account in his interview.
I have carefully considered his account that Jonathon had him in a headlock, but find that I am unable to accept it.
For example, his account varies, and is internally inconsistent, viz.
·Jonathon had him in a headlock on the ground (Answer 16);
·Jonathon had him in a headlock from behind so he leant over, fell over (Answer 16-17);
·he was in a headlock from behind, he grabbed Jonathon and his hand slid when he rolled on the ground (Answer 23);
·he fell over, he came backwards from the headlock (Answer 27)
·in regard to the headlock…when [he was] pinned on the ground and [was] gasping for breath [he thought] it could be over so [he grabbed] here. “You’re going to grab somewhere to get yourself off that person.” (Answer 76)
·Jonathon had him in a headlock and he tried to defend himself with his left hand on his butt cheek[117] and went and slid down (Answer 152);
·[the hand] just slid down there through being on the ground and in a headlock (Answer 200).
[117] Correction to transcript: ‘butt’ not ‘back’
From my analysis of all the evidence on this topic, I am unable to find that Jonathon did have his father in a headlock.
I have found that Mr Henshaw was the initial aggressor. I find that he continued to be the aggressor for the entire altercation.

Does the account of the accused in his Record of Interview give rise to a reasonable doubt about the complainant’s evidence on the facts in issue?

I have indicated that I do not accept the account of Mr Henshaw that Jonathon had him in a headlock.
Further, I do not accept the overall account of the accused in his interview. It contains internal inconsistencies, as I have just referred to. Another is that he said he used minimal force in the grabbing when his hand slipped. The use of minimal force seems inconsistent with his assertion that he needed to do what he did to defend himself, when he said he was gasping for breath, and thought ‘it could be over’. Also, at that point of the interview, in demonstration, he grabbed his left buttock and then grabbed higher up his back, which is also inconsistent with his explanation for the act. I interpolate that, when Mr Henshaw said ‘It could be over’ and he was gasping for breath, that he meant he might lose consciousness.
Further, despite saying he did actually recall, quite well, the day of the alleged incident, there were things that he was unable to remember until his memory was refreshed, or at all, such as what he and his wife were arguing over; what he and Jonathon were arguing over; how long before the incident he used the broom to defend himself or whether he defended himself with the broom before, during or after the incident; what lead up to the situation with the headlock (saying all he really could recall is being in a headlock and trying to get out of it) and what occurred after the incident, particularly what Jonathon did.
It was put to him by the police that Jonathon pushed him into the study (sic) and held the door shut for a substantial period. I note that the evidence at trial was that Jonathon pushed him into his bedroom. The point is that when Mr Henshaw’s memory was refreshed about being held in a room for a substantial period and that he came out like a pit bull and was so angry that the confrontation leading to the incident occurred, he did not recall ‘the study’ in any capacity, but did say that Jonathon previously described him as a pit bull, and that he, the accused, was very, very angry because of what transpired. Informed further about the allegation of what took place after Jonathon let go of the door (that the accused went to ‘rugby tackle’ Jonathon with the accused’s arms around or below Jonathon’s waist), he said he could not recall that.
If indeed he did have no recollection of these matters at the time of the interview, I accept that is consistent with the trauma of the night, and the passage of time, as with the recollection of the other two people present. However, I find it unlikely that he would have no recall at all of what occurred immediately before the point at which he asserted his son put him in a headlock, such that he felt the need to act in the way that he said he did to defend himself, to get out of the headlock.

I have considered the submission that the accused has been consistent in his response to the allegation, saying immediately after the event that it was an accident, and that his hand slipped, which statement is confirmed by Jonathon, and that he is consistent in that account in his interview. I have also had regard to his good character.
However, I reject the aspects of the accused’s account that assert that Jonathon was the aggressor, and that the accused was acting to defend himself.
I also reject his account where it is inconsistent with evidence from Jonathon and Ms Dunlop that I do accept, such as their evidence that the accused was the initial aggressor and continued to be throughout the altercation. I reject his assertion that when the argument escalated to pushing and shoving each other, he wanted to get out of the situation. Another example is that Ms Dunlop said that it was when Mr Henshaw went to his room, or somewhere, not in the vicinity, that Jonathon held the knife to his own arm; that is consistent with Jonathon’s evidence that his father was not just two to three feet away when Jonathon held the knife to his arm, and is inconsistent with the accused saying in his interview that he was threatened with the knife by Jonathon when he was closer to him.
While I accept that he said, after Jonathon put the knife back in the block, that Jonathon was threatening him, which utterance was confirmed by Jonathon in his evidence, I reject the accused’s assertion that he was actually being threatened by Jonathon. It is inconsistent with other findings I have made as to the accused being the initial and ongoing aggressor.
The accused appears to be minimising his actions, while asserting that his son was the one to be feared. These could be characterised as self-serving statements, at the time of the altercation, and in the interview. In contrast to his assertion that his son was making him scared, his wife describes the accused as going ‘nutto’, and her reason for ringing Ms Copperwaite to seek help was because his behaviour was not normal, the fits of temper when he [was] spitting and getting so strong is not normal; and his son describes his father as shaking, grinding his teeth, and being in a bulldog or animal state, and that when he is in that state, it is very hard to overpower him.
It is clear that the accused knew about the phone call to Ms Copperwaite, and what was purported to be said by Ms Dunlop, before the interview, and he raised it very early in the interview. As I have not found that the things he relies on were said by Ms Dunlop, the references to the phone call in the interview do not advance his account.
I put those aspects of the accused’s interview that I reject to one side and turn to determine what findings I make based on the evidence I do accept, and in particular whether on that evidence, the prosecution have satisfied me beyond reasonable doubt that the elements of the charge or charges are proved.

Is the complainant credible and reliable?

While the complainant was a difficult witness to hear clearly, especially over a video link, I do not consider his manner of speaking or demeanour affected his credibility and reliability in any way.
I am satisfied that the complainant is credible and reliable. The fact that he readily conceded that earlier versions were more likely to be accurate enhanced his credibility; in my view he was not a witness motivated by vindictiveness, or one seeking to embellish his account.
His credibility is enhanced by his preparedness to re-consider his answers in light of further information when he was challenged. The prime example is what was put to him from the recorded phone conversation with his father. He was definite that he did not have his father in a headlock, but was prepared to accept that the transcript made it sound as if he said he did, and agreed with propositions put to him, ‘if’ he had said it. However, as I have found, he did not ultimately concede that he had said it, as his firm memory is that he did not have his father in a headlock at any time.
His credibility is also enhanced by his immediate complaint, to his mother, grandmother and girlfriend.
Further, the complainant was supported by the evidence from his mother, grandmother and girlfriend as to his immediate complaint and extreme distress at what he said had occurred. While his grandmother gave a different account of the lead up to the alleged incident, the actual complaint she described was completely consistent with his account: “Gordon pushed him towards the wall and put his finger up his backside.” I consider the variation in the details of the complaint from the evidence of his grandmother is likely to be as a result of her memory, and as such, does not in my view adversely affect the credibility of the complainant.
The extreme distress the complainant exhibited, when considered in the light of the whole of the evidence that I accept, leads to the clear, reasonable, and only conclusion that his distress was caused by the actions of his father. While it was exhibited in each instance as part of the narration of the complaints, it was distress consistently observed immediately following the events by his mother when he ran out of the house and stayed in the park for hours in the middle of the night in winter, and also observed over the next days, by all three witnesses.
All three witnesses also provided supporting evidence of Jonathon’s ongoing pain and physical trauma as a result of what he said had happened.
Further, despite his mother not having a good recollection of the night, for understandable reasons of wanting to forget about it, and the trauma of the occasion likely affecting her recollection, what she did remember was consistent with the complainant’s evidence, as I have already outlined.

Findings on elements in dispute

Am I satisfied beyond reasonable doubt that there was penetration as alleged?

The complainant described feeling a pain that he has not experienced since, a lot of pain, a sensation that he had never felt before, feeling his father’s finger or fingers were a long way or a fair way up his anus, and as a result he let out a very loud scream, his legs went numb and he fell to the floor in pain and agony, before gathering himself, standing up, and leaving the house because he felt unsafe.
I accept this evidence, and am satisfied that this pain and the sensation accompanying it, was not as a result of a touch near the anus, or a scratch on the outside of the anus.
I am satisfied that the ongoing pain and physical trauma, the blood that the complainant found when (gently) wiping his anus, the evidence that he was unable to use his bowels for a couple of days, and that he reported these things immediately to those closest to him, together with his evidence of the act, all lead to the conclusion beyond reasonable doubt that the act performed by the accused was one of penetration.
The fact that this act occurred during a physical altercation, and that the ‘final incident’ began with his father trying to ‘rugby tackle’ him, or pick him up; and moved to his father exerting upward pressure and grabbing him higher up the leg and then grabbing his buttocks, does not give rise to a doubt in my mind about the complainant’s evidence that the accused’s actions changed from a grab to a poking sensation. I am satisfied from the complainant’s words and demonstrations that the poking sensation was the act of penetration.
The fact that it was an act of penetration that had to occur through clothing does not give rise to a doubt about the penetration taking place. While it is true that there was no evidence of blood or faeces on any clothing of the complainant, there were no questions asked about this, and I cannot speculate.
Further, the complainant maintained his evidence that there was penetration. He did so, even while being prepared to consider whether it was possible that the finger did not go inside, given that he had not got someone else to check it out when it was bleeding, and while he said he “suppose[d he did] not know the feelings enough to say whether it did or not”, he repeated that it did go in, it was too intense a feeling just to be scratching on the outside.
In saying that he did not know the feelings enough, I find that he was repeating that he had not felt this sensation before, and not saying that he did not know what he was feeling. It is clear that he knew, and described in his evidence, exactly what he was feeling taking place at the time of the penetration. I reject the argument that it was merely because he was being touched in a sensitive area near the anus that it was a different sensation.
I note the prosecutor’s submission, that if Jonathon did have his father in a headlock, it would only have added to the accused’s anger, such that he lashed out and penetrated his son.
However, as I have rejected the accused’s account that the action occurred when he was held in a headlock by his son, I have focussed on the challenge to the complainant’s evidence about what was occurring during the accused’s ongoing attempts to pick him up, in what was described by defence counsel as the mechanics of the action. While the complainant was prepared to consider the different possibilities, he was not shifted from his evidence that from the second he felt ‘it’ go in, he was in pain, and it was a different sensation from the grabbing that his father was doing immediately before it.
I reject as a possibility that the accused only touched the outside of Jonathon’s anus area. The only reasonable conclusion on all of the evidence that I accept is that penetration occurred.
I have considered the possibility that penetration occurred accidentally as a result of the movement of the two men during the ‘final incident’. The possibility of accident is inextricably linked to the issue whether the act of penetration was intentional; that is, conscious, voluntary and deliberate. I will consider that part of this element next, under a separate heading.
For this part of the first element, I am satisfied beyond reasonable doubt that the accused penetrated his son’s anus with a finger or fingers.

Am I satisfied beyond reasonable doubt that the act was intentional?

I find the evidence that I heard from Jonathon that he did not know whether it was an accident[118] is not an opinion expressed by him, it is a state of not knowing, or having no opinion. It is another example of his preparedness to consider possibilities, but also to maintain his position only on what he was certain about.
[118] T137 L19-23
Also, I find the evidence that I heard from Jonathon that he did not know what went through his father’s head that night[119] is also not an opinion expressed by him. These responses contribute to my finding that he was a credible and reliable witness who did not seek to embellish, and gave evidence from his best recollection.
[119] ibid
Whatever Jonathon said or did not say or know about his father’s state of mind at the time of the penetration, it is for me to decide whether the penetration was an intentional act.
This element rests on circumstantial or indirect evidence, and before I can find that the element is proved, I must be satisfied that it is the only reasonable conclusion to be reached on the whole of the evidence that I accept.
I exclude accident as a reasonable possibility for the penetration occurring. I do not find an accidental penetration to be a reasonable view of the facts that I have found.
I reject as a possibility that the accused was trying to grab either the buttocks or another area of his son’s body for the same ‘lifting’ reason that applied immediately before the ‘final incident’. I also reject as a possibility that his hand slipped either in that ‘lifting’ mechanism, as suggested to Jonathon, or slipped as the accused tried to grab his son’s buttocks in order to get his son off him, as he asserted in his Record of Interview. I reject the possibility that penetration occurred accidentally as a result of the movement of the two men during the ‘final incident’.
I have already rejected the accused’s account of the headlock. His assertion of the use of minimal force in the circumstances he described does not give rise to any doubt, on the facts that I have found, that the penetration was forceful, and intentional.
Therefore, the circumstances as I have found them to be, leading up to and at the time of the act, have satisfied me that the possibility of accidental penetration is excluded.
There was nothing accidental about the accused’s decision to do the act of forcefully penetrating his son’s anus, whether in the heat of the moment, or as the result of a build-up over a number of hours of him exhibiting extreme, irrational anger in the physical altercation that night.
The act of penetration may have been for only a few seconds, but the degree of pain experienced by the complainant, his scream, the bleeding that followed, and the ongoing physical trauma, showed that it was an act performed with considerable force. Penetration with considerable force is consistent with an intentional act.
On all of the evidence that I accept, I am satisfied beyond reasonable doubt that the accused intended the act by which he penetrated his son’s anus. It was a conscious, voluntary and deliberate act.
It does not have to be an intention to sexually penetrate; proof of an intention to penetrate the anus of another means that the definition of sexual penetration is met. If the act of penetration that is intentionally performed is an act of sexual penetration as the law defines it, that will be sufficient for this element to be proved.[120]
[120] R v Star [2020] VSCA 331, [35] – [43]
I find that the accused was extremely angry, that the physical altercation had been going on for hours, and that he had been unable to gain an advantage, despite his abnormal strength in his fit of rage. I am satisfied that he intentionally penetrated his son’s anus, likely as a violent means of asserting his superiority in order to ‘win’ the fight. The act of penetration did, in fact, end the physical altercation.

Verdict

There is no issue that if the penetration occurred intentionally, that it was without the complainant’s consent, and that there was no reasonable belief by the accused that the complainant was consenting.
In all the circumstances, I am satisfied beyond reasonable doubt that all elements of Charge 1 - rape - are proved.
I therefore find Charge 1 on the indictment proved.
There is no need for a verdict on the alternative charge on the indictment (Charge 2).
I therefore direct the following verdict be entered into the records of the Court:
Charge 1 - Guilty
Charge 2 - Alternative charge - No verdict required
---
MR PLUMMER: As Your Honour pleases
MR CRONIN: As Your Honour pleases

HER HONOUR: Now, Mr Plummer, I know you have a matter at 11am but my associate – we’ll just conclude in a few moments ---
MR PLUMMER: Thank you, Your Honour
HER HONOUR: --- but my associate will convey that to the judge in front of whom you will be appearing. Mr Cronin, in terms of setting a date for a plea, I’ll be guided by you whether you want to, at this point, make that a date to be fixed or whether we can organise a date now.
MR CRONIN: It might be putting the cart before the horse, but can I perhaps ask it this way, Your Honour. Mr ultimate application today would be that my client remain on bail until any plea hearing, noting ---

HER HONOUR: Well, I can cut you off there, Mr Cronin. I haven’t heard from the prosecutor, but I think in the unusual circumstances that we find ourselves in, we are not in court, it would have to be organised for your client to go to the court and for all of us, in order for him to go into custody. This is his first offence of any nature. He would be going into custody for the first time and in the circumstances of a lockdown. So, for all those reasons, it was not my intention to remand him in custody today.

MR CRONIN: Yes, thank you, Your Honour. Given that indication and because of the uncertainty with the lockdown, it may well be that we need to get reports and I couldn't confidently say that ordinary estimate of six weeks could be adhered to. I wonder whether it could be a date to be fixed and we could advise the court, perhaps in a week or two once we know what's happening with lockdown, as to when we can get appointments and properly prepared the matter and present material to the court.

MR PLUMMER: Yes, Your Honour. My instructions were that, ordinarily, there'd be an application to remand someone convicted of rape but given the special circumstances, it's a remote hearing and the situation with the lockdown, that we don't oppose bail being continued.

HER HONOUR: Thank you. And it seems sensible to have - it's not necessarily a mention, but just some out of court correspondence with the parties as to when we could set a date for the plea hearing.

MR PLUMMER: Yes, Your Honour.

HER HONOUR: All right, thank you. Well, Mr Cronin, coming back to you, in terms of reports, this will probably be obvious to you and particularly when you receive the full reasons, but you would be looking at, say, a psychological report, a forensic report - and not one from Ms Copperwaite I expect - however, I would think that it may be very useful for background material from Ms Copperwaite and that that would not be - I would certainly consider that, despite findings that I have made.

MR CRONIN: Yes, Your Honour. All right, thank you.

HER HONOUR: In terms of background rather than opinion.

MR CRONIN: Yes, Your Honour.

HER HONOUR: All right, I hope that's clear. All right, well, I thank all of you for your attendance in these unusual circumstances. So the order of the court will be that the matter is adjourned for plea on a date to be fixed. Bail is that extended to date to be fixed. Mr Henshaw, that means that when we arrange the date for that hearing, that is the date that you must attend in court. It means nothing about what the final outcome will be that I'm extending bail at this point. Yes, if there's no other orders. As I said, the judgment will be sent through electronically as soon as possible. If there's nothing further then, I will ask Mr Swindon to adjourn the court until 2 pm today for another matter.

MR CRONIN: As Your Honour pleases.

MR PLUMMER: As Your Honour pleases.

- - -

[2021] VCC 1578

28 May 2021