Director of Public Prosecutions v Kerry (a pseudonym) (No 7)
[2023] ACTSC 65
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Kerry (a pseudonym) (No 7) |
Citation: | [2023] ACTSC 65 |
Hearing Dates: | 21 November 2022 – 29 November 2022 |
DecisionDate: | 30 March 2023 |
Before: | Loukas-Karlsson J |
Decision: | Not guilty on both counts. |
Catchwords: | CRIMINAL LAW – TRIAL BY JUDGE ALONE – historical child sexual offences – indecent assault of female under the age of 16 – two complainants – verdicts of not guilty |
Legislation Cited: | Crimes Act 1900 (ACT) ss 66B, 68B, 76 |
Cases Cited: | Adams v R [2017] NSWCCA 215 Conway v The Queen [2002] HCA 2; 209 CLR 203 |
Parties: | ACT Director of Public Prosecutions Zeph Gerrard Kerry (a pseudonym) ( Accused) |
Representation: | Counsel A Williamson SC ( DPP) T Jackson ( Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Accused) | |
File Number: | SCC 39 of 2022 |
LOUKAS-KARLSSON J:
Introduction
There are good reasons that are well documented through the work of the Royal Commission into Institutional Responses to Child Sexual Abuse and the evidence of Dr Sansum as to why complainants may delay in bringing sexual allegations to the police. In this case, there is a delay of approximately 45-50 years before the matter concerning Count 1 came to trial. In respect of Count 2, it is a delay of approximately 40 years.
These delays are completely understandable delays in the context of this case. Nevertheless, such significant delays present difficult issues for evidence, for ensuring a fair trial, and for proof beyond reasonable doubt. A case such as this presents difficult issues for the criminal law.
Standard of Proof
At its crux, the criminal law is about the power of the State and determining who must be punished. That is why the onus is on the prosecution and that is why the presumption of innocence and proof beyond reasonable doubt are the standards that must be applied. Grave suspicion is not the standard. Nor is the standard what is probable. The standard is not which version is preferred. The balance of probabilities is the standard for civil law, for civil disputes; for determining damages arising from injury. It is not the standard for the criminal law. It is not the standard for crime and punishment.
Judge Alone Trial
This is a judge alone trial conducted pursuant to s 68B of the Supreme Court Act 1933 (ACT) (Supreme Court Act). On 25 October 2022, the accused filed an election for trial by judge alone. The application was listed before McCallum CJ on 16 November 2022. However, at that listing, parties sought to have the application heard on 21 November 2022, the morning of the commencement of the trial. On 21 November 2022, McCallum CJ heard the application and ordered that the election was valid and the trial must proceed by judge alone: see Director of Public Prosecutions v Kerry (a pseudonym) (No 5) [2022] ACTSC 321. Consequently, the trial proceeded before me as judge alone without a jury.
In these reasons, I do not mention the names of the complainants, the accused, family members who gave evidence, friends who gave evidence, and other family members. I have included an appendix to this judgment (Appendix A) which I order not to be published, but to be made available to the prosecution and the accused’s representatives only, to be used by them if required for the purposes of these and any subsequent proceedings.
Summary of the Prosecution Case
In relation to the first complainant, Ms A, the prosecution alleges that, between 31 December 1971 and 10 December 1975, Ms A would regularly stay with her older (and non-biological) brother, the accused, at his premises at Tharwa in the ACT. The prosecution alleges that the accused would regularly enter her room after she went to bed most nights that she was staying there. He would place his hands down her pants and move his fingers around her vagina and genital region. He made skin to skin contact between his fingers and her genital region. On one or more occasions he then put his fingers under her nose and said, "smell this" (Count 1).
In relation to the second complainant, Ms B, the prosecution alleges that between 31 December 1979 and 3 August 1983, Ms B, the accused's niece, would regularly attend the accused's premises in Holder in the ACT. The prosecution alleges that the accused would regularly enter her room after she went to bed most nights that she was staying there. He would place his hands down her pants and move his fingers around her vagina and genital region. He made skin to skin contact between his fingers and her genital region (Count 2).
At its core, the prosecution case consists of the following components:
(a)The written statement Ms A made to New South Wales (NSW) police in October 2019 and the direct oral evidence of Ms B;
(b)Complaint evidence in relation to both complainants;
(c)Tendency evidence;
(d)Evidence of what are submitted to be ‘tacit admissions’ made by the accused to the alleged offending; and
(e)Expert evidence.
Accused’s Denial of Prosecution Case
The accused submits that the prosecution has not proven the case in relation to Count 1 or Count 2 to the requisite criminal standard of beyond reasonable doubt.
Approach
10. In dealing with whether the offences are established, I will set out first the elements of the offences. Second, I will set out and analyse the evidence concerning both counts. Third, I will set out the relevant legal directions I must follow, before finally coming to my conclusions in relation to the respective counts.
Elements of the Offences
11. At the time of the offences alleged in the counts, s 76 of the Crimes Act1900 (Crimes Act) provided as follows:
A person who assaults a female and at the time of, or immediately before or after, the assault commits an act of indecency upon or in the presence of that female is liable to imprisonment for three years, or, if the female is under the age of sixteen years, to penal servitude for five years.
12. I note that the elements of the offences for Count 1 and Count 2 were discussed in R v W BC (Unreported, Supreme Court of the ACT, Gray J, 2002).
13. The elements of s 76 are as follows:
(a)The accused committed an assault on a female;
(b)At the time of, or immediately before or after, the assault, the accused committed an act;
(c)The act is indecent according to the standards of morality and decency held by ordinary members of the community;
(d)the act is committed on, or in the presence of, the female;
(e)the female is under the age of 16 years
14. The elements of indecent assault on a female by course of conduct are:
(a)Each incident constitutes an offence against the same provision: Crimes Act s 66B(1)(a);
(b)Each incident relates to the same complainant: s 66B(1)(b);
(c)The incidents take place on more than one occasion over a stated period: s 66B(1)(c);
(a)The incidents, taken together, amount to a course of conduct having regard to:
(i)The time at which the incident happened; or
(ii)the place at which the incident happened; or
(iii)the purpose for which the incident was committed; or
(iv)any other relevant matter.
Evidence
Evidence related to Count 1 concerning the first complainant Ms A
15. Ms A is now deceased. Regrettably, Ms A died on 5 March 2022 prior to the commencement of this trial. That tragic event occurred just after the matter was committed for trial from the Magistrates Court, on 15 February 2022.
Statement to NSW Police
16. The complainant made a statement to NSW police in October 2019. It is important that I note at this juncture that an evidence in chief interview (EICI) was conducted with Ms A on 15 July 2020 before her death. The EICI is the subject of a separate judgment: see DPP v Kerry (a pseudonym) (No 6) [2023] ACTSC 60. That evidence is not before me for reasons set out in that judgment concerning the conduct of the interview.
17. The crux of Ms A's evidence in relation to the alleged offending is at paragraphs [20]-[22] of the statement she gave to NSW Police in 2019. Those paragraphs state:
[20] One school [holidays] I went to visit [the accused] and [the accused’s wife] in Tharwa. At this time, they were living in a small farmhouse that had shearing sheds up the back and an outside toilet that you had to dig. It was a small house and I used to stay in a little bedroom at the back of the house that led out to where you had to go to the toilet. There was a single bed in that room and that is where I slept. The bedspread was a hand embroidered one that was like a calico colour.
[21] Each time that I would stay there I would go to bed and in the wee hours of the morning [the accused] would visit me in the bedroom and literally wake me up. [The accused] would pull back the covers and then he would use his fingers to touch my genital area.
[22] This would occur every [holidays] that I went to visit, and it would occur not every night, but a lot of the nights that I was there. A few times when [the accused] touched my genital area whilst I was at Tharwa he would put his fingers up to my nose and say something "Smell these". I never said anything back to him or tried to push him away or anything like that.
18. Ms A also included in her statement uncharged acts that allegedly occurred in NSW which the prosecution relies on as tendency evidence. That evidence is as follows:
[10-11] When I was a young girl, mainly on a weekend, I would go into the boy's bedroom and hopped into bed with [the accused] as young girls do. The first incident that I can remember happened when I was 7 or 8 years old, I can't remember exactly as it was that long ago. [The accused] would have been 19 or 20 years old at this time. We were living at [town name]. I had gone into the boy's bedroom and hopped into bed with [the accused]. I can't remember if [Brother Z] or [Brother X] were still in their beds. Whilst I was in bed with [the accused] he began to touch me on my genitals. He used his fingers to rub over my genital area and it was flesh to flesh contact. After he rubbed my genital area he then kissed me on my genitals. I can't remember if [the accused] was using his tongue or anything, I just remember that he was kissing me on my genitals. When I say genitals, I mean my vagina and labia area. After [the accused] had kissed my genital area he asked me to kiss his penis. I can't remember if his penis was erect and I can't remember if I actually did kiss his penis. I just remember him asking me to do this and I was really repulsed by the thought of it.
[13-14] The second incident that I can remember occurred at our house in [a town]. We had a do on at our house, but I can't remember what the do was. I remember that it was a Sunday as Dad was there and the only time that he wasn't at work was on a Sunday afternoon as the General Store was closed. I can't remember how old I was, but I was younger than 12. Whilst this do was on at our house at some point I was sitting on [the accused]'s lap in the lounge room. There was lots of other people in the room at the time, but [the accused] had put a cushion or pillow over the top of my lap. Whilst I was sitting on [the accused]'s lap he had his hand inside my underwear and he was rubbing my genital area again. He did not penetrate my vagina at all with his fingers, he was just rubbing my genital area.
[15-16] The third incident occurred on a day when [the accused] took [Brother Z], [Brother X] and I to a roller-skating rink or similar in the Wollongong area. It was an outdoor skating rink and I think it may have been in Albion Park. [The accused] drove us to the roller-skating rink in his browny coloured Holden Premier. It was the older style Holden that had the bench seat in the front and I am pretty sure that it had the exterior vinyl roof. [The accused] let me sit on the bench seat in the front next to him. I really liked this as it made me feel like a big girl. [Brother Z] and [Brother X] in the back. It was night-time, and we had to drive down Macquarie Pass. Whilst [we] were driving [the accused] was fiddling with my genitals. I can’t remember if he penetrated my vagina, but he was definitely touching my genital area.
19. I note that the fact that there is only a written statement and Ms A has not been cross examined has forensic significance in relation to whether the criminal standard of beyond reasonable doubt can be met concerning Count 1.
Husband of Ms A
20. Ms A’s husband gave evidence on the second day of the trial on 22 November 2022. He first met the accused two or three years before marrying his wife in August 1997 (T34.20). The witness and Ms A were married for 24 years. Ms A’s husband stated that contact with the accused was more frequent in the earlier years at family gatherings, and that they probably interacted in total on a dozen occasions (T35.1-4).
21. Ms A’s husband gave evidence regarding disclosures made by his wife regarding the accused doing things to her of a sexual nature. She made disclosures around the time of the birth of their second child in 2003. He gave evidence that his wife had post-natal depression at the time (T35.10-12).
22. The witness gave evidence that Ms A told him about these incidents from 2003 about every few months, and in the two years up to her passing “almost on a daily basis” (T35.29-38).
23. The witness gave evidence that “going into detail was probably not going to be comfortable for either of us.” He said that Ms A stated quite specifically that there was no intercourse, but did tell her husband (who gave evidence that he “arguably … had pushed the point”), that there was unwanted touching of private areas, and a degree of oral sex from the accused (T35.40-46, T36.1-6). In regards to the oral sex, the witness gave evidence that “I think we both agreed that to discuss it in detail was only going to be upsetting to both of us and we didn’t pursue the conversation” (T36.9-11). It was put to the witness that he did not make allegations of oral sex in his police statement of 24 September 2021 (T38.6-31, T38.40-42). The witness accepted that he was “light” on the particulars of the allegations with the police (T38.33-34). The witness stated that he thought that oral sex came under the heading of ‘molesting’ which he included in his statement (T39.18-20).
24. Ms A’s husband gave evidence that in February 2018 he had a phone call with the accused. He stated:
I can’t be certain whether my wife initiated the call or the call came in. It was on a landline in our lounge room. And when I entered the room which [Ms A] would have wanted me to do, I think, just to time the entry. I took the phone off her because it just seemed appropriate. I spoke to [the accused] and these words are etched in my mind.
25. Ms A’s husband recalled saying to the accused “You know what you’ve done” (T36.47). The witness gave evidence that the accused said to him, “I can’t recall doing anything and if I did I’m sorry” (T36.35-36). The witness recalled there was no point in continuing the conversation and he hung up (T37.14-15). I will deal with legal questions that arise from this conversation later in this judgment at [259]-[283] in the section discussing ‘Tacit Admissions’.
26. Pursuant to my granting of leave under s 192A of the Evidence Act2011 (ACT) (Evidence Act), the witness was cross-examined about Ms A being admitted to a psychiatric hospital in Sydney. He gave evidence that his wife was periodically under the care of a treating psychiatrist for around 19-20 years, and was taking medication which she managed herself (T40.31-32, 36-45, T41.33-35). It was put to the witness that because of her mental health, Ms A did not continue with her statement. The witness denied this (T41.20-25). The witness agreed that “things started to become a bit more difficult” for the complainant Ms A around 2019/2020 (T42.26-28).
27. In my view, Ms A’s husband gave evidence in a forthright and believable manner. He made appropriate concessions. Overall, he was a compelling and credible witness.
The accused’s wife, Mrs Kerry
28. The accused’s wife, who I will refer to in this judgment as Mrs Kerry, gave evidence in relation to both Counts. The prosecution called Mrs Kerry at the request of the accused pursuant to the prosecution's duty to call all material witnesses: R v Apostilides (1984) 154 CLR 563; Dyers v The Queen [2002] HCA 45; 210 CLR 285. Mrs Kerry did not provide a statement to police.
29. I note that during this witness’s evidence on 23 November 2022 I made an order under s 38 of the Evidence Act permitting the prosecution to cross-examine this witness.
30. The witness gave evidence about her relationship with the accused and the charges before the court. She recalled that when she married the accused, they were married “in a Holden station wagon” (T125.11-13). She gave evidence that she moved with the accused to the ACT in April 1971 to Hackett, and then moved to an address in Tharwa in March 1972 (T125.36-43). They lived there until moving to a government home in Holder in 1975.
31. The witness gave evidence that she had a son, born in 1978, and a daughter, born in 1981.
32. The witness gave evidence that the accused was sentenced to a term of imprisonment on 3 August 1983, and that he was released on about 7 June 1984 (T142.9-15). I note this was for the offence of cultivation of cannabis.
33. Mrs Kerry described the Tharwa home. She described the house being made of weatherboard and timber (T126.38). The witness stated that she and her husband painted the house themselves. She described various parts of the house including shearing sheds out the back, a “thunderbolt of a toilet”, a lounge room, a kitchen, and a little room out the back (T126.11-14). She gave evidence that the accused’s brother Z stayed with them in Tharwa, and for a short period in Holder until he met his wife and they moved to Melbourne, in about October 1975 (T126.16-18, T128.28-38).
34. Both the accused and Mrs Kerry continue to live in the Holder house. She stated that they have been married for 52 years, going on 53 (T126.47).
35. The witness gave evidence that when Ms A came to stay and spend holidays at the Tharwa property, “she didn’t stay in that little room out the back, she stayed in the shearers’ quarters. And she often said that she stayed in that little room but she didn’t” (T127.1-5).
36. The witness gave evidence that the shearing quarters were around 200 metres from the house. The shed was just behind the garage. The witness stated that the shed contained double bunks and very good heating (T139.3-6). The witness described locks on the doors, and a “very good” toilet situation (T139.41-42). The witness stated that there were two bedrooms in the shearing quarters, and two bedrooms in the main house. She gave evidence that Ms A did not stay in the main house because they had Brother Z staying in that room, as well as a friend from Western Australia (T139.28-31). It was put to the witness that it would have been safer for Ms A to stay in the main house. The witness stated that “it would have been, but we prefer it that way for her to stay in the shearers quarters because they were nice and clean, and they were really decent living quarters” (T139.44-47).
37. It was put to the witness by the prosecution that Ms A stayed in the main house when she visited. It was put to the witness that Brother Z was not in the house at this time (T140.12-15).
38. I further note that the following evidence was given:
A WILLIAMSON: You know, having read the brief of evidence, that [Ms A] says she was sexually abused in the second bedroom in the main house, don't you?
WITNESS: Yes, I know that.
A WILLIAMSON: Yes, so you know that if you were to give a version inconsistent with that, it would go someway to creating some doubt, don't you?
WITNESS: Yes and I – and [the accused] wasn't like that at all.
A WILLIAMSON: What you are doing in saying that [Ms A] slept in the shearing quarters is deliberately trying to create some doubt in order to protect [the accused] isn't that right?
WITNESS: No, I am not doing that at all.
A WILLIAMSON: I see?
WITNESS: I'm definitely not doing that.
A WILLIAMSON: Well I want to be very clear and very fair to you, I am putting it to you that you are lying.
WITNESS: I am not – no, I'm not doing that.
39. In relation to both Count 1 and Count 2, Mrs Kerry’s evidence in summary included:
(a)She had read the prosecution brief of evidence before giving evidence;
(b)When Ms A stayed at the Tharwa property she did not reside in the main cottage, but rather stayed in the shearers’ quarters by herself which was some 200 metres from the main house;
(c)It would have been safer for Ms A to have stayed in the main house;
(d)The bedroom which Ms B stayed in at the Holder premises was next to where she and the accused slept;
(e)The accused never went into the bedroom that Ms B was sleeping in;
(f)She has a good memory of the accused's movements within the house 40 years ago;
(g)They have two children together and have a strong and loving family unit. If the accused were convicted that could have a destructive effect on the family unit and that is an outcome she would like to see avoided.
40. Overall, Mrs Kerry was not a compelling witness. In my view, she did not make appropriate concessions and therefore tended to give her evidence in a rigid manner that tended to lack credibility. In particular, in my view the evidence concerning Ms A sleeping in the shearers’ quarters lacked credibility. I have come to a similar conclusion with regard to the credibility of this witness’s evidence concerning Count 2 at [163]-[165].
Ms C – Ms A’s niece
41. I will refer to this witness as Ms C.
42. Ms C gave evidence in relation to Ms A, her aunt. She gave evidence that Ms A made disclosures to her just after the birth of Ms A’s youngest son approximately 20 years ago (T115.4-11). The witness gave evidence that Ms A nominated the accused as the person who had abused her (T115.22).
43. The witness gave evidence that she and Ms A talked about this often, however Ms A went into detail after the death of the witness’s mother on 8 January 2018 (T115.27-36).
44. The witness gave evidence of an occasion when she and Ms A were taking turns spending time with the witness’s mother in her mother’s bedroom at a home in Queensland prior to her death. At around 11pm, Ms A told the witness “exactly what had been done to her” (T115.43-44). The witness said Ms A told her that the accused had asked her to come and sit on his knee and he proceeded to put his hands down her pants, and he got an erection (T116.19-20, 22).
45. The witness gave evidence that at her sister Ms B’s graduation in 2019, the witness and Ms A were at a unit on the Sunshine Coast. The witness was in Ms A’s bedroom sitting on her bed and she told the witness “exactly the same story” again (T116.32-36).
46. It was put to the witness that in her police statement when asked 'Other than mid‑January 2018 did Ms A ever go into detail?' her answer was, “Only mentioned it again one other time, probably at my sister's graduation”. The witness accepted this conflicted with her evidence in court that the witness and complainant had constant conversations following the death of the witness’s mother (T119.31-36). The following was put to the witness:
T JACKSON: So you were asked a question into proving other than mid-January 2018 did Ms A ever go into detail? Your answer was, “I only mentioned again one other time, probably at my sister’s graduation.”?
WITNESS: Yes. That was 2019 in April.
T JACKSON: But you gave evidence-in-chief that you’re talking about it constantly more than that?
WITNESS: Well, it was never talked about in detail. It was in every part of our life.
47. The witness was cross examined about a phone call she received while Ms A was in a psychiatric institution (T117). The witness gave evidence that Ms A said to her, ‘Did my brothers ever do anything to you?’ (T118.1-9). The witness agreed that later, Ms A told the witness about what “the brothers” had allegedly done to her. The witness could not remember if Ms A specifically named the accused and one of his brothers, noting that “we’d been talking about it for years” when cross-examined on this question (T119.10). However, the witness accepted that she could not say with any clarity when the conversation occurred where Ms A named the accused (T119.12-13).
48. This witness gave her evidence in a believable and forthright manner. Nevertheless, the conflict between evidence of constant conversations and the statement “only mentioned it again one other time” is somewhat undermining of her testimony. More importantly, in my view, the evidence concerning “brothers” as opposed to specifically the accused lessens the weight of this complaint evidence.
Ms A’s brother-in-law, Mr I
49. Ms A’s brother-in-law, Mr I, gave evidence. He described himself as a friend to Ms A. He gave evidence that Ms A spent quite a bit of time with him and his wife, as Ms A’s mother lived with them for a period of time (T167.27-29).
50. The witness gave evidence of disclosures made by Ms A regarding sexual abuse committed by the accused against her. He stated that the first disclosure occurred in 2004-2005 (T167.35-36), or possibly 2003 (T168.45-46). The witness stated that “[Ms A]’s exact words were that fingers were inappropriately inserted into her.” (T167.45-46). The witness gave evidence that Ms A did not provide any other details (T168.9-10). He stated that Ms A named the accused as the person who did this to her (T168.1-7).
51. The witness gave evidence that Ms A mentioned this on multiple occasions (T168.11-19). He gave evidence that Ms A did not go into any detail beyond the first disclosure (T168.36-41).
52. The witness stated that he was aware that Ms A had spent some time in a psychiatric institute around the time of the first disclosure (T169.3-5).
53. Counsel for the accused correctly underlined that the evidence of ‘complaint’ is the digital penetration of Ms A by the accused and further emphasised that other than that single specific complaint, there were no further disclosures of any specificity or detail.
Detective Leading Senior Constable Evans
54. The witness gave evidence about their role as the informant in this matter. At the time the witness was an investigator in the Sexual Assault and Child Abuse Team in Criminal Investigations with the Australian Federal Police (AFP).
55. The witness’s evidence concerned the conduct of the EICI on 15 July 2022 with Ms A. This witness’s evidence is the subject of my judgment in DPP v Kerry (No 6) [2023] ACTSC 60. It not necessary, for the purpose of this judgment, to go into detail about this witness’s evidence. Broadly, the witness described conducting the EICI with Ms A.
Facebook messages
56. In evidence were a number of Facebook messages between Ms A and a Facebook account belonging to Mrs Kerry. The first message was sent on 19 February 2018 (Exhibit 4). In those messages Ms A alleges that the accused sexually abused her as a child. On 22 February 2018 at 9:08 am the accused sent Ms A a message from Mrs Kerry’s Facebook account. He did not deny the offending. The message stated:
[Ms A], I don't know what to say except I am very sorry if that helps, I know that might not be enough but I don't know what else to say except you are my sister and I have loved you from the first time I held you
[Accused]
57. Mrs Kerry sent a number of messages to Ms A. On 23 February 2018 she wrote “hi [Ms A], I didn’t even know this was happening, I’m so sorry …” and later:
… back then as you explain he was a very sick man, I wish you told us earlier Darl to think you went through [a] horrible ordeal in your life with your brother you love, all I can say put this behind you now and move forward as hard as it is for you to do but always remember I’m here for you if you ever want to talk, love you dearly. I am very [ashamed] in what [happened]…
58. On 2 March 2018 Mrs Kerry wrote:
Hi [Ms A], How are you? You ask me a question the other day about [the accused]. He still cant remember anything, so he is doing ok and [feels ashamed] if that was the case what he did to you back then Darl I know now he is a [changed] man and he did [put his] past behind him, there was some horrible things he had done, which affected us all well, like we say you can forgive but it is hard to forget.,I’m starting to rally around now but after you told me that news,I was very distant and disappointed with [the accused]. That he did such a terrible thing…
59. I discuss this evidence later under ‘tacit admissions’.
Telephone conversation with Ms A’s husband
60. As referred to earlier, in February 2018 Ms A’s husband confronted the accused in a phone call in relation to sexually abusing his wife. The accused did not deny the allegation. He responded by saying words to the effect of “I don’t recall doing it, but if I did I am sorry” (T36-39).
61. The prosecution submits that these tacit admissions outlined above show a consciousness of guilt. I deal with the question of these ‘tacit admissions’ later in this judgment at [259]-[283].
Evidence related to Count 2 concerning the second complainant, Ms B
Evidence at trial – 22 November-24 November 2022
62. Ms B gave an EICI on 10 November 2020. An audio-visual recording of the EICI was played at the trial on 22 November 2022. The complainant gave further evidence in court on 22 and 23 November 2022.
63. In her EICI, the complainant described going to the accused’s house during school holidays around 1980, when she was 11 or 12 years of age, usually for one week out of her two-week holidays. The complainant recalled four sets of school holidays each year. The complainant lived in NSW at the time. The complainant stated that someone would take her to the accused’s house on the weekend and pick her up the next week. She recalled the address, in Holder. She said she did not know how many years she visited for, but guessed three or four years. This was later clarified as two to three years under cross examination.
64. The complainant said the accused had two children, a daughter around six months of age and a son aged two to three. The complainant used to go and help her aunt, the accused’s wife, with the kids. The complainant said there’s “a lot I don’t remember”. In my view that statement did not detract from Ms B’s general credibility.
65. The complainant described the Holder house and surrounding area. She described the house as a blonde brick house on the outside, although she was unsure exactly what it looked like. She described a little alleyway close to the house. She stated that the house was made of brick and had a decent-sized backyard. The complainant described the internal layout of the house. The complainant drew a diagram of a view of the floorplan of the house which became Exhibit 6. During her evidence in court, she notated the diagram, which became Exhibit 9.
66. The complainant indicated on the diagram that the lounge room was straight through the front door. Towards the back of the house was a dining room and a little kitchen the complainant described as “kind of an extra room.” The complainant stated that to the right of the house was a hallway and there were two bedrooms on the right-hand side and a bedroom on the left-hand side. She described a bathroom and toilet at the end of the house. The complainant conceded in cross-examination that she did not know if there were streetlights out the front of the house as she “can’t remember. It was 40 years ago” (T80.29-31). She stated that her sister Ms D used to sometimes drive her to the accused’s house or come and pick her up. The complainant stated in cross examination that her sister Ms D would stay in the bunks in the bedroom on the right hand side, next to Mr and Mrs Kerry’s room (T88.10-13) when she dropped the complainant at the house (T83.42-43). She stated that sometimes Ms D’s boyfriend would drop her off as he had a licence (T88.4-5).
67. The complainant described the bedroom where the alleged sexual offending occurred as a “pretty simple” room containing yellow-brown timber bunk beds. She stated that the room contained a light-coloured carpet. She described the bunk beds as plain with no barriers, with a ladder at the side. During her EICI the complainant indicated that the bunk bed was about as high as the accused’s chest. She described a window that looked out onto the backyard. She described a blind which she thought was white. The complainant stated that she thought a light was on. She stated she could not remember much more about the room. She described the door being always open. It was suggested to the complainant that she was wrong about the room she was staying in (T83.1-4). The complainant conceded a possibility that she stayed in a different bedroom, but reiterated that the bedroom described above was the bedroom she remembers (T86.31-33). She stated that “it happened many times and I don’t remember every time” (T86.35-40). The complainant accepted she may be wrong, but stated that the information she was giving was from her memory of events occurring over 40 years ago (T83.1-4, 13-14). The complainant accepted that she did not tell police in her EICI that she may have stayed in another room (T86.46-47).
68. The complainant made reference to a diagram dated 10 November 2020 in her evidence (Exhibit 6). She agreed that the front door opened into the lounge room, as indicated by two lines parallel to the wall. Under cross examination she stated that from her memory these lines marked the front entrance (T80.36). The diagram contained three bedrooms. The complainant gave evidence that the sexual offending occurred in the bedroom on the opposite side of the corridor to the front door, and to the right of the bedroom labelled indicating Mrs and Mr Kerry. During her evidence, the complainant marked the bedroom with an ‘X’. As above, this marked diagram became Exhibit 9. The complainant stated that Mr and Mrs Kerry’s son slept on the bottom bunk of the bunk bed, and the complainant slept on the top bunk. The complainant disagreed under cross examination when it was put to her that Mr and Mrs Kerry’s son slept in the bedroom to the right of Mr and Mrs Kerry’s room, indicated by the label ‘Bedroom’ on Exhibit 6 (T80.22-23). The complainant stated that when the accused’s youngest daughter was born, she would have been sleeping in the bunks in the bedroom opposite the toilet and bathroom.
69. The complainant described the accused as having very dark olive skin, dark hair, a full beard and a moustache. She described him as around five foot eight or nine, and not quite as tall as the complainant’s [father] who she described as six foot three. The complainant said there was “probably no one incident” because “I know it did happen every time.” The complainant stated that the offending was identical every time. The complainant stated that she could hear the accused coming up the hallway and into the room. The accused would come into the room to say goodnight. There was extensive cross examination about the complainant’s evidence regarding the accused entering the room to say goodnight. It was put to the complainant that the accused never said words to this effect. The complainant stated that she did not remember exactly (T84.13). The complainant’s memory was that the accused said words to the effect of ‘goodnight’ to his wife, not to the complainant directly (T84.24). The complainant repeated the fact that she may not have a memory of exact words being said from 40 years ago (T84.1-3). It was put to the complainant that the version she told police in her EICI, and her evidence under cross examination, were different. The complainant stated that ‘it was what happened when he [came] into the room that’s what we’re talking about here not about what he said” (T85.35-38).
70. The complainant gave evidence that this happened about ten minutes after going to bed. The complainant described wearing a nightie and underpants when she went to bed, noting she probably wore a nightie every time the incidents occurred. The complainant stated that the accused would walk up to the bed and stand at the side and put his hand under the blankets. The complainant described having her head against the wall. The complainant later clarified that she did not know if it was a doona or blankets as she “[hadn’t]” really thought about it in that much detail”. The accused would put his hand down her pants and “have a bit of a fiddle”. She described the accused moving his fingers, and doing so for a few minutes. She stated that the accused would place his hands on her vagina, rubbing the whole vulva area. She did not recall his fingers entering her vagina. She stated that it was definitely with one hand. The complainant said that would be it and that “it never went any further than that.” The complainant stated that the accused never said anything when he was in the room. The complainant stated this happened every night while she was at the house. The complainant stated that she did not see the accused come into the room because she would have her eyes closed the whole time. She stated that she didn’t want to make eye contact or engage with him so she “kind of froze” and waited for it to stop and for the accused to leave. She stated that whilst this was happening she felt scared.
71. The complainant described trying to face the wall or pretend she was asleep, waiting for the accused to be finished and leave the room. She stated that it occurred for about five minutes.
72. The complainant stated that the accused would “sort of come in and stand beside the bed” and indicated on the diagram where this was. As noted earlier, she said the accused would say he was coming in to say goodnight. She said this occurred went she had just gone to bed, at around half past eight or nine o’clock. At this time, the complainant recalled that Mr and Mrs Kerry’s son would have been asleep on the bottom bunk, as he was younger than her and went to bed before she did. It was suggested to the complainant that the younger two children would have had a bed time routine and that “in terms of the way the dynamic worked” the accused’s wife Mrs Kerry would have taken care of the children in terms of their night time routine (T82.27-33). The complainant disagreed with this assertion (T82.31-33). It was put to the complainant that at no point did the accused ever come into the bedroom that the complainant was staying in (T82.82). The complainant denied this (T87.6-7, 9-10, 12-13). The complainant stated that the accused “always” came into the bedroom she stayed in (T82.45). It was put to the complainant that the accused never touched her genital area, which the complainant denied (T87.15).
73. The complainant stated that the accused “wouldn’t say anything” while he was “doing it.” She stated that she used to always pretend she was asleep when the accused came in, and that “[the accused] kind of didn’t really want to wake me up or anything like that.”
74. At the time of these incidents, the accused’s wife was present in the house.
75. The complainant could not recall specific dates. She made reference to notes in her diary of when she was there, so could specify those dates.
76. The complainant gave evidence that she did not remember any other adult males being present in the property at the time the acts occurred (T52.38).
77. The complainant gave evidence that she is “absolutely positive” that the accused committed the aforementioned acts against her (T52.40-41).
78. The complainant stated that she never discussed what happened with the accused.
79. The complainant gave evidence that following these incidents, everything was “just normal”. She stated that it was “never spoken about”, and that she would just wake up the next day and have another day. She stated that the accused was not a horrible, mean person, describing him as very loving and affectionate.
80. The complainant stated that the offending stopped after the last school holidays that she went to visit. She recalled visiting one last time when only Mrs Kerry and the kids were there as the accused was away, and then ceasing visiting. She thought this was in 1983. She stated that she did not know why she stopped visiting but it was probably because she was entering her teenage years and was probably with her school friends.
81. The complainant gave evidence that she first confided in her sister, Ms D. Ms D is approximately 5 years older than the complainant. The complainant gave evidence that she told two friends about the offending: Ms E and Ms F.
82. The complainant gave evidence that she has never told anybody about what happened in detail. The complainant gave evidence during her EICI that this was the first occasion that she has provided detail.
83. The complainant gave evidence that she had a conversation with the accused’s wife about the offending recently, after the death of her mother.
84. The complainant gave evidence that prior to her EICI, conducted in Brisbane, she attended a police station in the Southern Highlands in NSW. She agreed that this was on 2 December 2019. The complainant gave evidence that she attended with Ms A. Under cross examination the complainant accepted that she refreshed her memory from her police statement during a break in her interview (T70.10-14).
85. The complainant was cross examined about a car accident she was involved in, in 1986 (T71.25-26). The complainant gave evidence that this was possibly around the same time she disclosed allegations to her sister Ms C (T71.33-36). She gave evidence that following the accident she experienced dissociation and that it changed the way she perceived the world at that time (T71.41-42, T72.15-16). The witness accepted that she was not thinking as she “normally would” at the time (T72.10-13).
86. It was put to the complainant that there had been many discussions between various family members about a number of brothers and “certain things” that happened, which she accepted (T72.23-25). The complainant repeated multiple times that she did not specify details about the incidents to anyone (T72.31-35). The complainant accepted that she had never told anyone what happened in the bedroom, beyond that the accused did something (T72.46, T73.1-2).
87. The complainant accepted that she did not state the specific accusations against the accused to him in the pretext call, which I discuss at [113], [169] and [170]. The complainant referred to “those times in the night time when you would come into the room” and words “to the effect of” child sex abuse (T74.46-47, T75.12-14, T75.20-21); however, she did not say what he “physically” did to her (T75.1). The prosecution submitted in relation to the pretext call that there was no suggestion or indication from the accused that he did not understand the purpose of the call or its subject matter. The prosecution noted that by the time this call was made the accused had already been confronted and been put on notice about the allegations of sexual abuse that had been made against him, and would therefore have known what Ms B was calling about. I deal later in this judgment with evidence concerning ‘tacit admissions’.
Diary entries by the complainant Ms B
88. The complainant gave evidence regarding diary entries that she had written. The extracts of the diary entries became Exhibit 7.
89. The first entry is dated 22 May 1983. In this entry the complainant indicated that she had gone to the ACT:
… Anyway the reason that I haven’t written is because for the holidays I have been away the whole 2 weeks. The first [week] I went to [location] to see [person’s name] and the day after I got back I went to see [Mrs Kerry] in A.C.T for another [week] I was sick when I got there [probably] all the travelling, tiredness and homesick put together but I got home yesterday. I gotta go because I got school in the morning (yuck) and I got to get to sleep. Yours sincerely, [Ms B] xxx
90. The second entry was dated 8 July 1984. The entry reads as follows:
Well, [person’s name] wrote back and you should have heard his letter, it was so mushy, it honestly made me feel sick. So I'm going to write back to him and tell him not to take our relationship so seriously. Anyway, my big chance came and I blew it, [person’s name] asked me to go with him and I said no, but I know I will regret it sooner or later. Its just that whenever a boy starts to get serious with me, I feel sick and I can't stand being with him. It is [really] hard to explain how I feel but I think there is something wrong with me. All the girls I have told said I was crazy and now I'm beginning to believe it.
I think it's because of something that happened when I was only little. I can't say what it is just in case someone reads it. It has been bottled up inside of me for so long and I just feel like yelling it out to the world but I know I can't. Anyway, I have said too much already, so I had better go. All my love, [Ms B] xxx
(emphasis added)
91. The complainant gave evidence that when she referred to thinking something happened to her when she was only little and that she ‘can’t say’ what it is ‘just in case someone reads it’, she is referring to the fact that she had been sexually abused by a couple of her uncles, including the accused and Brother X (T54.43-47). Importantly, the complainant accepted in cross examination that the references to something happening when she was little are equally referrable to uncles other than the accused against whom the complainant has made similar allegations (T76.44-46, T77.1-5). The complainant clarified in re-examination that this specific entry was probably a reference to Brother X however the allusions throughout the diary entries to feeling sick and being unable to get close to boys were a reference to the accused as well as to “others” (T89.5-11).
92. The complainant gave evidence that she knew she couldn’t “[yell] it out to the world” or tell anyone because she thought she would get in trouble. She gave evidence that she was worried that her dad might do something silly, like ‘kill [the accused] or bash him or end up in jail himself’ (T55.12-14). The complainant also stated that she felt shame around what had happened (T55.10).
93. On 19 February 1985, the complainant wrote in her diary that her mum had read her diary entry dated 8 July 1984 and had approached the complainant and asked if there was anything she should tell her (T55.19-23). The entry contained the following:
Hi, sorry, I haven't written for so long but I just forgot about you. I found out that mum read a part of my diary and she read a pretty serious part of it. It was my fault she read it because I left it sitting on my bed. I shouldn't have even wrote it in there. I was so stupid. I should have thought. I feel really dumb for putting it in here now. Mum told me the other night that if I had anything important or serious happened to tell her even if I didn't want to tell dad Just tell her and we talk about it. I really want to tell her about it but I just can't oh well, I've got to go now. Oh, yes, nanna and Uncle [name] are down. We didn't even know they were coming until they arrived. Oh well, must go
94. The complainant confirmed in her evidence that the reference to “really [wanting] to tell her about it” was a reference to the sexual abuse (T55.25-27).
95. The complainant maintained under cross examination that the entry of 8 July 1984 at [90] was the entry read by her mother which sparked their discussion (T77.39)
96. An undated diary entry (marked as between 4 June 1991 and 16 November 1993) was also tendered into evidence. The complainant agreed this was a rough time period estimate (T78.40-41). The complainant gave evidence that the entry contained an indirect reference to her sexual abuse by the accused by reference to the following extract:
Let’s get them out of that cupboard open that door and get rid of them. They are like cancer they just grow and grow silently until it starts to spread all over your body and surely all over our lives
97. The complainant gave evidence that when she referred to something growing inside her, she was referring to shame (T56.10-16).
98. The diary entry makes specific reference to another uncle, Brother X. The complainant gave evidence that although she mentioned Brother X, the effects she talked about were from all of the assaults (T77.15-17).
99. The complainant was cross examined about her handwriting in the last diary entry. The complainant accepted that the handwriting changed throughout the entry but that she wrote it all in “one hit” (T79.19-20).
Specifically, the complainant gave the following evidence at T89.5-12:
A WILLIAMSON: Okay. Are any of the matters that you've alluded to in that diary referable to [the accused] in whole or in part?
WITNESS: In part all of it, the feeling - the feeling sick, the shame, the - not being able to get close to boys because I would literally want to vomit. It all referred to what had been happening.
A WILLIAMSON: Okay, and was that a reference to [the accused] and others or just the others?---
WITNESS: To [the accused] and others, yes.
In conclusion, as to those diary entries, it was accepted by the complainant that only Brother X is mentioned directly and that the accused was not specifically mentioned.
The diary entry evidence is significant. Nevertheless, the fact of allegations mentioning another brother specifically and not the accused somewhat complicates and undermines the efficacy and weight of the evidence in a case concerning the guilt of one brother, the accused in this case.
Facebook messages between Ms B and the accused’s wife
On 14 February 2018, the complainant sent a Facebook message to an account belonging to the accused’s wife Mrs Kerry disclosing what had happened to her.
The messages stated the following:
Hi [Mrs Kerry] This message is not going to be easy for me to write or for you to read. I have been putting off writing it for several weeks now, but I am certain now that it is the right thing to do. There is no easy way of saying it, so I will just say it. [The accused] sexually interfered with me for many years when I came to stay with you for the holidays as a child. [Names of two people] have been told, and I know that [the accused] has recently been contacted regarding this as well. I understand how upsetting this will be for you and I am sorry that I am the one causing it. I feel like I connected with you for the first time in many years during Mum's last days, and I felt sad for the lost of the relationship you and I could have had. I realise now that you were the reason I wanted to come and stay all those years ago. It took me a while to understand that, as I've questioned myself as to why I kept going back so many times. You are a beautiful person, [Mrs Kerry], and I want you to know that I don't blame you for what was happening to me in any way. I think this will also help you understand why I distanced myself from you and [the accused], avoided attending family gatherings, and not wanting to get too close on the rare occasions that we have been in the same room. It was very difficult for us girls to have three of the four [brothers] at the house during Mum's last days, and I'm sure that you felt the tension. Mum knew what had happened to us. She was told twenty-five years ago. She could not cope with the knowledge and dealt with it by pretty much ignoring it. While this was hard for me, us, to deal with at the time and for many years after, I forgive her. I just wished I had told her that before she died. But the subject was so upsetting for her that I couldn't - that I didn't want to cause her any more pain. Anyhow, I'm not sure where all of this coming out it going to end up, all I know is that it's out in the open now and I thought you deserved to know.
(emphasis added)
Mrs Kerry responded as follows:
Thank you for letting us know. And I don't feel bad towards you, but what I don't understand, why did this happen when I look after children for thirty-three years and nothing like this happened to my day care children? I'm very shocked and it is hard to believe that did these terrible things to you. At least now you have it out in the open and off your chest. It was so lovely catching up with you all. Wish it was of better circumstances and, like you said, we could've had a better relationship if this didn't happen. I often think about our good times we had and often wonder what happened, why you'd stay away. But now I do understand.
Thank you again for letting me know. I love you dearly. Take care. Keep in touch.
The complainant replied as follows:
Thanks for getting back to me. I've often wondered about your day care kids. I'm not sure you could be certain that some of them have not been affected. After all, it took me forty-odd years to bring this knowledge to you and some people never tell anyone. I worry that there could be many more victims when it's all said and done. Thanks again for getting back to me.
The complainant stated in evidence that she sent Mrs Kerry chapter from a textbook on child sex abuse along with the following message:
I thought I would sent this to you so you had some information about the subject. I'm not saying that [the accused] is a monster, far from it. He was always loving and caring. It doesn't change the fact that he'd done things to me on many occasions that were terribly wrong. The statistics say that many offenders were abused themselves as children and that the majority of them will deny 'it. I'm sure if you dig deep you will find the truth, if you haven't already.
Mrs Kerry responded:
[Ms B], when I was in day care we did all the courses on sex abuse in children, so I do understand. But what you're saying [the accused] did to you is hard to believe because not once did he touch my day care children or grandchildren. I even keep in touch with our old families. They would drift away and wouldn't have anything to do with us if this had happened to them. I would've let [my son] know in due course about what is going on. When they come down to see us just recently I didn't even have time to sit down to talk to them because they were busy going to see their friends and spending time with the boys. There is a time and place for everything, and in the early years of our marriage, [the accused] and I wasn't all that close. Before the children, we were drifting apart, but over the years we want forgiveness as hard as it is, [the accused] had suffered a lot in those early years, spending time in prison, car accidents, falling out of trees, and then two terminal cancer. That's why I stay with him for support. Now we have found church and involved with square dancing, but we have survived those dark days of our lives and moving on. As hard as it was, there is always something there that's stopping us from doing this. Life is too short. We want to enjoy what time we have left, not hold grudges.
The complainant responded:
It doesn't matter what you say, [Mrs Kerry], it is the truth. [The accused] is never going to admit it and the church doesn't make it go away. I want to make a difference in the world, [Mrs Kerry]. I want the community at large to open up a discussion around child sexual abuse, that it is not strangers you have to be concerned about and that the effects last a lifetime. I'm not surprised or even disappointed with denial and not being believed, I have done enough research to expect this reaction from both of you. To lie to your children is something you have to live with, not me. The truth is out. There is no-one left to tell, except the church. [The accused’s] unfortunate life is of his own doing and perhaps some sort of self-punishment. Even good, long-term family friends of yours and [the accused] said they always suspected it and kept their girls away from him for this reason. The denial is all yours, [Mrs Kerry], and the truth will remain the truth beyond all of our lives, not just for [the accused], but for all of us. There are many people affected and perhaps a lot more to come out yet. Holding onto grudges is what keeps us safe from people like [the accused], or else we would all be naïve like you and ….
I note that this evidence refers to difficulties with three of the four brothers.
Disclosures to friends and family
Disclosure at sister’s house to Ms D and Ms G
Ms B gave evidence that sometime in 1984 or 1985 she disclosed the offending to her sister-in-law, Ms G, and her sister Ms D at her sister’s house. She gave evidence that she had come into a conversation between Ms D and Ms G about being abused. Ms B gave evidence that she realised they were talking about “the same thing that happened to me” so she disclosed the offending by the accused to them both (T57.8-14). The complainant gave evidence that she did not go into detail to anyone.
The complainant gave evidence that she disclosed the offending to her sister Ms C just after that initial discussion with Ms D and Ms G.
Pretext phone call between complainant and accused
As referred to earlier, in evidence was a pretext phone call between the accused and the complainant Ms B. This is discussed later in this judgment under ‘tacit admissions’.
Song lyric disclosure
The complainant gave evidence that she made the first disclosure to her friend, Ms E. She gave evidence that it was around the same time as her disclosure to her sister Ms D and sister-in-law Ms G but that it may have been earlier (T57.20-25). The complainant gave evidence that she and her friend had been writing songs and the complainant had written lyrics that concerned her friend (T56.45-47). The friend asked the complainant what the song was about and the complainant told her friend that she had been inappropriately touched by her “uncles” and this is what the song referred to.
Conclusion on credibility
Overall, I formed the view that the complainant Ms B was a forthright and credible witness. I am conscious of the need to exercise care in placing weight on demeanour. Nevertheless, I was assisted to a significant degree in observing Ms B’s evidence and found her to be a forthright and credible witness.
Ms B’s older brother, Mr H
The complainant’s older brother, Mr H, gave evidence. The witness confirmed that during the early 1980s, he and Ms B would attend the accused’s premises in Holder during the school holidays, when he was around the age of seven to 11 (T91.34-36). The witness stated that they slept in two separate rooms. He described a hallway going up to the righthand side of the house, and stated that his sister Ms B would sleep on the righthand side, and he would sleep on the lefthand side (T91.38-43). The witness recalled three or maybe four bedrooms in the house; one on the left, right, and the accused’s and his wife’s (T92.1-5).
The witness drew a diagram of his recollection of the house, which became Exhibit 10. The diagram indicated a front entrance area and a large room, with a long hallway on the right hand side. The witness marked each bedroom with the names of those who slept in them. On the left hand side of the hallway were marked two rooms ‘1’ and ‘2’, with ‘1’ labelled indicating Mrs and Mr Kerry and ‘2’ labelled indicating Ms B. On the right hand side of the hallway, opposite room 1, contained room 3 labelled indicating this witness’s name, which the witness stated he would sleep in. He stated that he always slept in the same room. He recalled single beds in his room, and double bunks in the complainant’s room. The witness recalled that the complainant always slept in the bedroom next to Mr and Mrs Kerry’s bedroom (T97.46-47).
The witness gave evidence that on “at least a couple of times” he recalled hearing the complainant crying at night (T94.1-5). He recalled an incident of waking up and hearing the complainant crying, and getting up to see what was wrong. He recalled being met by the accused at the door to the complainant’s room, who said something to the effect of “everything’s OK. You can go back to bed. She’s alright” (T93.15-24, 31-32, 36-39). He recalled being unable to go back to sleep because he could still hear her crying (T93.44-46).
The witness gave evidence that the complainant never disclosed sexual offending by the accused to him (T94.22-23).
Counsel for the accused submitted that the witness gave evidence of hearing Ms B crying, however, provides no context. It was correctly submitted that no inference in the circumstances can be drawn as to the reason for such crying.
Childhood friend, Ms E
The complainant’s childhood friend, Ms E, gave evidence regarding the disclosures made to her by the complainant. The witness recalled going to Canberra around 1983 or 1984 and visiting the complainant at the accused’s address in Holder (T99.17-19). She recalled an unknown woman being at the address. The witness gave evidence that she and the complainant were writing songs that day, which they often did (T100.31-32). She recalled the complainant writing a song which she found very strange. The song contained phrases like “touching me”, “don’t touch me”, “doing things” (T100.42-44, T101.5-6). The witness gave evidence that she laughed and asked the complainant “what on earth is that crap” (T101.13). She gave evidence that the complainant was “bawling her eyes out” (T101.31-32) and said that her “uncles” did things to her (T101.15-21). The complainant did not disclose any details (T102.11-15). The complainant named the uncles as the accused and Brother X (T101.25). The complainant was “bawling her eyes out” and told the witness to promise never to say anything about it (T101.32-33). The witness didn’t pry anymore, and just cuddled the complainant (T101.43-44). The witness recalled one more incident where the complainant made disclosures, but said she was intoxicated and cannot recall any of it (T102.6-8).
Overall, the evidence was that the witness was told that the song lyrics related to Ms B’s uncles, the accused and Brother X, and that Ms B was upset. There was no specificity as to the allegation against the accused or his brother.
The witness confirmed that she was not able to recall any other disclosures by Ms B.
I note the contents of Exhibit 7 (diary entries). I underline, as discussed above, that there is no reference to the accused. There is only explicit reference to Brother X.
Again, the efficacy of this evidence concerning the accused is somewhat undermined by the allegations being plural as to “uncles”. The use of the plural ‘uncles’ in the evidence lessens the weight that can be attributed to this complaint evidence.
Childhood friend, Ms F
Another childhood friend, Ms F, gave evidence regarding disclosures. She recalled this occurring when she was in Year 9 at about age 14, in 1984. She and the complainant were talking about school holidays and the complainant told the witness that she didn’t like coming to Canberra for holidays. The witness asked the complainant why, and she said she was being sexually abused by her uncles. In cross examination the witness used the word ‘uncle’ (T107.5-7). In her evidence in chief the witness stated that she identified the uncles as the accused and his younger brother at the time. However, in cross examination she stated that the complainant did not give the witness any names at this time, which she confirmed in re-examination (T107.22-24, 29-30). The complainant did not go into any detail about the abuse. The complainant was very upset and embarrassed (T104.43-45).
The witness and the complainant lost touch after school, and became close again following the birth of their children. The witness gave evidence that the complainant made around four more disclosures to her regarding the sexual abuse around 1990 or 1991 (T107.39-40), however not in any detail (T105.5-15). In cross examination she stated that she could not recall if the complainant gave her the names of the uncles later on, however she thought she did (T106.39-40, 44-45). In re-examination, she stated that during this time, the complainant identified the uncles as the accused and his younger brother (T107.42-43).
In cross examination, the complainant agreed that in her police statement undertaken on 15 July 2021, she made no mention of the names of the two uncles, the accused and Brother X (T106.7-8). It was put to the complainant that she did not tell the DPP the names of the two uncles during a conference, which she agreed was possible (T106.19-22).
Counsel for the accused submitted that the crux of the complaint evidence is that “uncles” had ‘done things to her of sexual nature’.
Given the issue of a number of uncles and the paucity of detail the weight of this evidence is reduced.
Again, the efficacy of this complaint evidence is blurred by the evidence concerning “uncles” other than specifically nominating the accused.
Ms B’s sister-in-law, Ms G (married to Ms B’s brother, Mr H)
The witness gave evidence that she first met the complainant in 1983 or 1984. She met the complainant’s brother first. Ms B first disclosed sexual offending to the witness in late 1983 or 1984, although the witness was not sure of the date (T111.15)
The witness gave evidence surrounding the circumstances of Ms B’s disclosure to her. The witness was living with the complainant’s sister Ms D at the time in the Southern Highlands. She recalls an incident where she was at the back of the house near the clothesline, and two of the complainant’s uncles were down there, the accused and Brother Y (T109.15-18). The witness recalled Brother Y, another brother of the accused “sticking his tongue down [her] throat” and being “very huggy”, which she found “pretty gross” (T109.13-25). The witness went into the house and the complainant and Ms D were sitting on the lounge. The witness told them what had happened, and the complainant started crying. When she had finally stopped crying, she told the witness that her uncle had sexually assaulted her when she was younger (T109.22-31). The witness did not recall whether the complainant said uncle or uncles however she recalled that one name was the accused’s (T109.29-32).
It was put to this witness that the accused was in custody in late 1983 and early 1984, and that her evidence about seeing the accused on this occasion was a fiction (T111.45-46, T112.1-3). The witness repeated that the accused was there at the clothesline with Brother Y on that occasion (T112.7-9).
The complainant Ms B made subsequent disclosures to the witness regarding the abuse. The witness recalled a birthday party at Ms C’s house in around 1985. The complainant mentioned that when she was a child she used to stay with the accused and his family and he would come in and touch her and “do things” (T110.3-7).
On the same occasion, or around that time, the complainant told the witness that she was asleep and facing the wall and “he would stick his penis in her and touch her breasts” (T110.9-12). She said the witness mentioned the accused, however she couldn’t remember if the complainant mentioned anyone else.
The witness recalled on subsequent occasions that the complainant told her it used to happen to her on a regular basis when she was at Mr and Mrs Kerry’s house. Ms B described to the witness having an out-of-body experience, where “it was happening but it wasn’t happening”, like she was watching it happen (T110.21-26).
The witness agreed that she made no reference to penile-vaginal intercourse in her police statement of 7 October 2021 (T111.6-7). The witness stated that she told the prosecution about the penile-vaginal intercourse and touching of the breast, however the prosecution conceded no such reference, and that careful notes were taken (T111.30-37, T112.41-46).
Counsel for the accused correctly submitted that the asserted complaint evidence bears no similarity with that of the alleged conduct asserted by Ms B. The ‘complaint’ evidence goes far beyond what is alleged and would constitute a different offence, being an act of penetration, and also a different basis for an act of indecency, being touching of the breast. At no point have these been alleged by Ms B.
It must be said that complaint evidence of penile-vaginal intercourse is simply not consistent with the evidence of the complainant.
Counsel for the accused further submitted that there is an assertion that this witness may have met the accused in possibly late 1983 or early 1984. It was unchallenged in evidence from Mrs Kerry that from August 1983 to June 1984 the accused was in prison in NSW for cultivation of cannabis.
I note the following evidence at T112:
T JACKSON: Now, you said the first time – the first disclosure, which was a general nature, was in 1984?
WITNESS:: Around about, yes.
T JACKSON: Could it have been maybe late 1983?
WITNESS: Could have been.
T JACKSON: Because obviously, you know, we sometimes mix up between January of one year and December of the other, so - - -?
WITNESS: It was a long time ago.
T JACKSON: It was. So it could be anywhere from 1983 to early 1984?
WITNESS: Yes.
T JACKSON: And at least from that point you would say it is the earlier part of 1984 where you first saw – on your memory you first saw [the accused]?
WITNESS: Yes
…
T JACKON: And so if we go back to the timeframe, so late 1983 to 1984 – so when I say late 1983 would a fair assessment be, say, November?
WITNESS: Don't know.
T JACKSON: But you agree the back end of 1983 to the start of 1984 in the first couple of months you saw Mr [accused] at the [Moss Vale] address?-
WITNESS: Yes.
T JACKSON: See, I am going to suggest to you that that is a complete fiction you have just made up today?
WITNESS: No.
T JACKSON: So if I was to suggest to you that at that time Mr [accused] was actually in custody for the cultivation of cannabis you would disagree with me?
WITNESS: Well, I don't know anything about that.
T JACKSON: Okay. See, I am suggesting to - - -?
WITNESS: This was 30 years ago or more.
T JACKSON: No, but you have been very specific about the timeframe and that is why I am saying to you that Mr [accused] was not there?
WITNESS: He was there. He was at the clothesline with his brother, [Brother Y]
The weight of the evidence of this witness is negligible in the circumstances of the clear inconsistencies discussed above.
Ms B’s sister, Ms C
The complainant’s sister, Ms C, gave evidence about a disclosure made to her by Ms B. She thought the disclosure occurred at their sister-in-law Ms G’s house at Ms G’s daughter’s first birthday. The complainant identified the accused and Brother X as the uncles who had offended against her. The complainant did not go into any detail (T114.42-43).
Under cross examination the witness was referred to her police statement of 28 July 2021. It was put to the witness that she stated, ‘I can’t remember exactly what she said, but I know it was about [the accused]’ (T119.1-2). Although the witness accepted in cross-examination that she could not remember when the complainant named the accused, she confirmed in re-examination that the complainant named the accused on this occasion at her sister-in-law’s house (T119.12-13, T120.34-35).
The witness gave evidence that the complainant raised the topic of the accused sexually abusing her at least two to three times a week up until the present day. It was “something that was just discussed all the time.” (T114.33-34).
Again, the evidence concerns “uncles”.
Counsel for the accused correctly submitted that Ms B nominates at least two uncles, including the accused.
Ms B’s sister, Ms D
Ms B’s younger sister, Ms D, gave evidence regarding disclosures. The witness recalled visiting the accused’s house in Holder. She thought the last time she visited was at the age of 17 or 18. She stated this was not during school holidays, and she did recall visiting with her sister, the complainant (T121.40-46, T122.1-5).
The witness gave evidence that the first disclosure was made to her when she lived in Moss Vale in 1985. She knew it was in 1985 as she only lived in that house for a short period of time (T122.10-13). The witness recalled that they were watching a movie which contained sexual abuse and Ms B was quite upset. Ms B told the witness that “one of her uncles had done that to her” (T122.15-18). The witness then stated that the complainant had said two of her uncles had done things of a sexual nature to her, identifying them as the accused and Brother X (T122.20-27). Ms D gave evidence that Ms B did not go into detail (T122.32-33).
The witness gave evidence that the complainant has made reference at least 20 times to the accused doing things of a sexual nature to her since 1985 (T123.1-4). The witness indicated that Ms B told her the abuse happened during school holidays (T123.19).
Counsel for the accused submitted that the height of the complaint evidence is that two of her uncles, being the accused and Brother X had ‘done things to her’. There was no detail given.
In my view given the issues of a number of uncles, ie both Brother X and the accused, and further, given the paucity of detail in this evidence, the evidence is of reduced weight.
Again, in summary, the complaint evidence concerns “uncles” and does not include further detail.
Accused’s wife Mrs Kerry
The witness gave evidence that Ms A came down to visit in 1983 “a fair bit of the time” for about a week at a time (T127.23-28). The witness stated that she was working in day care at this time (T127.15-26). She stated that she used to drive the complainant back home or Ms D, the complainant’s older sister, would come down or would drop the complainant off (T127.30-31).
The witness described the bedroom the complainant Ms B would stay in during her visits. The room contained double bunks. The witness gave evidence that Ms B would stay in the room next to Mr and Mrs Kerry’s room with their son (T145.5-6). The witness marked Ms B’s diagram indicating that Ms B slept in the bedroom on the side of the house facing the road (T142.32-43). This became Exhibit 11.
The witness gave the following evidence:
WITNESS: She said she slept in - if [my son] was on the bottom bunk but [my son] was down the end of the house and opposite was [my daughter’s] room and there was double bunks in both beds. I had even a cot set up for the family daycare children and they used to - when I used to look after them as well. And they had - they had the verticals up at the windows.
A WILLIAMSON: Yes. Now, you - - -?---
WITNESS: And [my son] room was looking over the front part of the house and [my daughter’s] was looking over the back.
A WILLIAMSON: Yes. You just said that [Ms B] said when she came down to stay. How do you know what [Ms B] has to say about when she came down to say?---
WITNESS: Yes, because I read up on some of the statements and that's how I knew what she said and they were - I received text messages from them at the time when all this started to happen and came to a light - and that was when I - I said this is not true.
A WILLIAMSON: So have you read brief of evidence in relation to this matter?
WITNESS: Yes, I have.
A WILLIAMSON: Right. Have you read the evidence-in-chief interview transcripts of both [Ms A] and [Ms B]?
WITNESS: Yes, I have.
A WILLIAMSON: So you know the detail of what they have to say?
WITNESS: Yes, they have to say, yes.
(emphasis added)
The witness accepted that Ms B slept in the same room as the witness’s son when she stayed, and that both slept in the same bunk bed (T141.6-12). The witness stated that this room was at the front of the house and overlooked the front yard (T141.16-18). The witness could not recall if the witness’s brother came to stay (T143.14-16).
The witness gave evidence regarding the night-time routine. She stated that she put the children to bed, and that the children had to be in bed by 7:30pm, and Ms B went to bed at about 10pm (T143.32-35, 144.9-10). The witness read stories to her daughter and then she went in and read to her son. At this time, the accused was in the kitchen, or in the lounge room watching television (T143.45-46, T144.1). When the children went to bed, the accused and the witness would mainly watch TV. The witness stated that the accused used to work seven days a week, so he was often not home (T144.20-22). The witness gave evidence that the accused did not go into the children’s rooms at any time (T144.6-7). The witness gave evidence that she and the accused went to bed together at around 12am (T144.14, T145.19-20).
The witness was cross examined on her evidence that the accused never went into the bedroom the complainant Ms B was staying in, at T145-146:
A WILLIAMSON: Did he ever go to the toilet?
WITNESS: He went to the toilet, yes, and where I was sitting it was straight down the hallway and you can see any action that happened in my house. I was – you know, even working with Family Day Care I keep a pretty close eye on – even on the doors and everything, so I know when the door is open and I know when the door is closed.
A WILLIAMSON: Did he ever go to the kitchen and get something to eat whilst you were watching telly?
WITNESS: ---Sorry?
A WILLIAMSON: Did he ever go to the kitchen, get something to eat whilst you were watching telly?
WITNESS: No, he wasn't very – even back then he wasn't a very good eater. He used to – you know, I used to go and make a cup of tea or something like that for him, but I was with him most of the time.
A WILLIAMSON: So your evidence is that you can remember 40-plus years ago [the accused’s] precise movements in that house after [Ms B] went to bed?
WITNESS: Yes, I could. I'm – I got very good memory back in those – at that time. Everything flashes back after I got some text messages from the girls, and I was, 'No, this didn't happen', and when I got the statements and read the statements, I said, 'This didn't happen'.
The witness gave evidence that she is aware of mandatory reporting because she has been trained in that field. The witness gave evidence that every 12 months she did the course (T144.45-47).
As stated earlier, the witness agreed that the accused, his wife and two children are a strong family unit, and that a conviction in relation to these matters could shatter or damage the family unit. It was put to the witness that she was not being honest in order to protect the accused, to whom she has been married for 52 years, and to protect the integrity of her family (T141.24-25, 41-44). The witness stated that she was being honest (T141.143-144).
As I stated earlier at [40], Mrs Kerry gave rigid uncompromising evidence and failed to give appropriate concessions. This detracted significantly from the credibility of her evidence.
It is unlikely that the accused’s wife could remember the accused's precise movements within the Holder address some 40 years ago. At that time, in my view on the evidence, Mrs Kerry would have no reason to pay particular attention to the precise movements of the accused within the Holder premises.
(a)The absence of, or the delay in making, the complaint does not necessarily indicate that the allegation that the offence was committed is false; and
(b)There may be good reasons why a victim of a sexual offence may not make, or may hesitate in making, a complaint about the offence.
The prosecution submits that I will not give myself a forensic disadvantage direction pursuant to s 165B of the Evidence Act because that provision only applies " ... in a criminal proceeding in which there is a jury." Nevertheless, it is appropriate that I direct myself concerning forensic disadvantage as I am both the judge of the facts and law.
I underline at this juncture that there is some ambiguity and difficulty in the complaint evidence where there is evidence of other family members engaging in similar alleged conduct. Specifically, “uncles” are referred to in the complaint evidence of Ms B’s sisters Ms C and Ms D, and Ms B’s childhood friends Ms E and Ms F.
Inferences
I may, in my role as a judge of the facts, draw inferences from the direct evidence.
Inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
In a criminal trial, I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference.
In the context of a criminal trial, I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances. Inference is to be distinguished from assumption and speculation.
Tendency Direction
The prosecution case relies, in part, on tendency evidence and therefore tendency reasoning.
Part of the prosecution case is that the accused had a tendency to act in particular ways and have particular states of mind, namely: that the accused had a sexual interest in girls under 16 years of age and acted on that sexual interest by engaging in sexual acts with each girl when they visited his home, for his own sexual gratification.
Count 1 alleges that between 31 December 1971 and 10 December 1975 the accused assaulted Ms A in Canberra, Ms A then being a person under 16, and at the time or immediately before or after the assault, the respondent committed an act of indecency upon her. The allegation is framed as a course of conduct charge.
Count 2 alleges that between 31 December 1979 and 3 August 1983, in Canberra, the accused assaulted Ms B, who was under 16, and at the time of, or immediately before or after the assault, committed an act of indecency upon her. This is also a course of conduct charge.
The prosecution submits that I would be satisfied the accused had this tendency because of his conduct in engaging in acts of a sexual nature with Ms A and Ms B.
The prosecution submits this conduct reveals the accused had a tendency as above, which makes it more likely he committed the offences charged in the indictment.
I will need to consider the evidence relating to the alleged conduct of the accused and decide whether he did in fact conduct himself in the way the prosecution alleges. In doing so, I do not consider each of the acts in isolation. I should consider all the evidence.
If I decide that all, or at least some, of the conduct occurred, I will then need to consider whether it enables the inference to be drawn that the accused had the tendency to have a sexual interest in girls under 16 years of age and act on that sexual interest by engaging in sexual acts with each girl when they visited his home, for his own sexual gratification.
If I am not satisfied that any of the conduct the prosecution relies upon occurred, then there is no basis upon which the tendency could be inferred. In these circumstances, I must put the whole issue of tendency to one side and confine my consideration to the other parts of the prosecution’s case.
If I find the accused did have a sexual interest in girls under 16 years of age and acted on that sexual interest by engaging in sexual acts with each girl when they visited his home, for his own sexual gratification, then I can use that in considering whether it is more likely he committed the specific offences with which he is charged. However, it is essential I consider in relation to each charge whether the accused had a sexual interest in girls under 16 years of age and acted on that sexual interest by engaging in sexual acts with each girl when they visited his home, for his own sexual gratification.
Finding the accused did have the tendency the prosecution alleges is not enough to prove guilt. It may assist the prosecution to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the prosecution alleges on any of the occasions that are the subject of the charges. That is the only way the accused's tendency to have a sexual interest in girls under 16 years of age and act on that sexual interest by engaging in sexual acts with each girl when they visited his home, for his own sexual gratification may be used.
Ultimately, I must decide whether the specific offences with which the accused has been charged have been proved beyond reasonable doubt. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant about what the accused did. It will include the tendency alleged by the prosecution, provided I am satisfied it has been established.
When considering whether a charge has been proved, I will have to decide whether the prosecution has proved the essential elements of that charge.
Tendency evidence
The evidence in relation to each count, and the uncharged acts in NSW, is admissible for tendency purposes. That is to say, for example, in considering whether Count 2 of the indictment is proved, I can have regard to Ms A's evidence in relation to the alleged offending in Tharwa and the NSW Southern Highlands.
The prosecution submitted that I do not have to be satisfied beyond reasonable doubt that any alleged act occurred before it can be used for tendency purposes: The Queen v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 (The Queen v Bauer) at [8]. I discuss this further below under the heading ‘Tendency and beyond reasonable doubt’ at [240].
It is entirely a matter for me as the tribunal of fact as to what weight is placed on tendency reasoning as part of the deliberative process.
The prosecution submitted that the tendency evidence is extremely probative, and I will afford it very considerable weight. Whilst there is no need for 'striking similarity' before the evidence can be used for tendency purposes, the prosecution submits that there is striking similarity in the alleged conduct committed against the two complainants, which must lead to it being afforded very considerable weight. The prosecution notes the following common features in the evidence of the sexual abuse:
(a)In relation to Counts 1 and 2: the offending is alleged to have occurred in similar circumstances, namely on a female child whilst they travelled interstate to the accused's premises and were not under the control or supervision of their parents;
(b)There is striking similarity in relation to the mechanism of the alleged offending - both complainants state that the accused would enter their bedroom once they had gone to bed and place his hands down their pants and touch their vagina and genital area with his fingers, making skin to skin contact;
(c)Both complainants state that the accused would not say anything whilst engaging in the alleged conduct;
(d)Both complainants state that after each act of sexual indecency, the accused did not say anything about it and would behave like everything was 'normal'.
The prosecution submits that the NSW statement of Ms A, which has not been cross-examined upon, can support a finding of tendency in relation to Ms A that the charged Tharwa incidents occurred by virtue of the NSW uncharged incidents.
Further, in relation to both Ms A and Ms B, the tendency is put forward on the basis of cross-admissibility.
Tendency and beyond reasonable doubt
Where evidence is essential to the jury’s reasoning in reaching a finding of guilt, that evidence must be proved beyond reasonable doubt. This applies to evidence including tendency evidence. See Shepherd v The Queen (1990) 170 CLR 573 at [52]; see also Filippou v The Queen at [52]; The Queen v Bauer at [86]; and Adams v R [2017] NSWCCA 215 at [337]-[339].
In 2015, Victoria introduced the Jury Directions Act 2015 (Vic). Section 61 provides as follows:
What must be proved beyond reasonable doubt
Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are—
(a) the elements of the offence charged or an alternative offence; and
(b) the absence of any relevant defence.
An exception to this rule arises in the situation outlined above at [240]: see Dempsey v The Queen [2019] VSCA 224 at [76].
In 2021, NSW introduced the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020, amending the Criminal Procedure Act 1986 (NSW) to add section 161A which provides as follows:
Direction not to be given regarding tendency or coincidence evidence
(1) A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence.
(2) If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact.
(3) Subsection (1) does not apply if a court is satisfied--
(a) there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and
(b) evidence of the act or omission has been adduced as tendency evidence or coincidence evidence.
In JS v R [2022] NSWCCA 145, it was held at [47] that s 161A(1) was not restricted to only uncharged acts but also had application to charged acts which were cross-admissible on a tendency basis.
The only uncharged acts I am dealing with are allegations by Ms A regarding conduct which allegedly occurred in NSW. Ms A’s statement is the only evidence of this. I must assess the weight of this evidence.
The other tendency evidence concerns charged acts and it is tolerably clear that it may be considered unreasonable and illogical in this case to find a tendency proved and not find the charge proved beyond reasonable doubt. A similar point was made by Mossop J in R v Stephens [2021] ACTSC 308 at [26]. Consequently I am not persuaded that tendency evidence and tendency reasoning concerning both charged and uncharged acts is of significant weight in determining the specific issues in this case.
Course of conduct charges
The prosecution relies on s68B of the Crimes Act in relation to both charges. That is to say, the accused is alleged to have engaged in a 'course of conduct' against each complainant.
Pursuant to s 68B of the Crimes Act, I will direct myself in the following terms:
(6) The prosecution must prove beyond reasonable doubt that the incidents of an offence committed by the accused, taken together, amount to a course of conduct having regard to –
(a) the time at which the incident happened; or
(b) the place at which the incident happened; or
(c) the purpose for which the incident was committed; or
(d) any other relevant matter.
(7) For subsection (6), it is not necessary to prove an incident with the same degree of specificity as to date, time, place, circumstance or occasion as would be required if the person were charged with the child sexual offence constituted only by that incident.
(8) Without limiting subsection (7), it is not necessary to prove-
(a) any particular number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents; or
(b) that there were distinctive features differentiating any of the incidents; or
(c) the general circumstances of any particular incident.
(emphasis added)
Sections 165 and 165B of the Evidence Act warning – delay in prosecution – sought by accused
As referred to earlier, pursuant to s 68C of the Supreme Court Act, a judge hearing a trial without a jury must take any warning, direction or comment into account in considering the verdict.
In relation to Ms A the following warning is sought under s 165(1)(c) concerning reliability affected by age and mental ill health. There is evidence before me that in 2003, Ms A entered a psychiatric facility. Further, there is evidence that the preparation of Ms A’s NSW Police Statement was interrupted by mental health issues.
I deal with this issue later in this judgment at [288]-[293].
A warning pursuant to s165B has been sought by the accused. The allegations are said to arise from between 1972 (at the earliest) until 1983. They were not reported to police until late 2019 when they were reported to NSW Police. This was a delay of between 40 to 50 years. The investigation was taken over by ACT Police in early 2020.
It is important that the court takes into account the effects of delay on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case.
In this regard, the accused referred to the following specific difficulties encountered by the accused in testing the evidence of the prosecution and in adducing evidence in his own case. They include that no oral evidence could be called from Ms A and her evidence was not able to be tested under cross-examination.
Counsel for the accused submitted there was forensic disadvantage in that had the accused learned of the allegations at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him.
In my view a warning is appropriate under s165B as to significant forensic disadvantage because of the consequences of many decades of delay in this case and the death of relevant individuals.
Longman warning
As the evidence of the complainant could not be adequately tested after the passage of a number of decades it would be dangerous to convict on that evidence alone unless in scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, I am satisfied of its truth and accuracy (Longman v The Queen (1989) 168 CLR 79).
The particular features of the case that I must take into account are as follows:
(a)The passage of time since the allegations and reporting of allegations concerning both complainants, being approximately five and four decades respectively
(b)The lack of specificity in the complaint evidence received by the court
Tacit Admissions
The accused made what the prosecution submitted are a number of ‘tacit admissions’ which demonstrate a consciousness of guilt.
As referred to earlier, in February 2018 Ms A’s husband confronted the accused in a phone call in relation to sexually abusing his wife. The accused responded by saying words to the effect "I don't recall doing it, but if I did I am sorry.”
Ms A sent the accused's wife, Mrs Kerry, a number of Facebook messages. The first was sent on 19 February 2018. In those messages Ms A alleges that the accused sexually abused her as a child. On 22 February 2018 at 9:08 am the accused sent Ms A a message from Mrs Kerry’s Facebook account. He did not deny the offending. He said:
I don't know what to say except I am very sorry if that helps, I know that might not be enough but I don't know what else to say except you are my sister and I have loved you from the first time I held you
Ms B called the accused on 10 November 2020 from the AFP office in Brisbane (the pretext call). Ms B said to the accused that she wanted to have a chat "about you know, the- the things that we've been going, what we've been talking about for the last few years". The accused responded "yeah". There was no suggestion or indication from the accused that he did not understand the purpose of the call or its subject matter. By the time this call was made the accused had already been confronted and been put on notice about the allegations of sexual abuse that had been made against him as referred to earlier at [88] and [178] of this judgment.
Relevantly, the accused said this:
... I just couldn't remember anything ... If this happening (indistinct) very, very sorry, I obviously- um, if something ever happened it wasn't planned. Nothing about this is ever planned, but it's just so spur of the moment (indistinct) wish I knew (indistinct) I don't know ... I'm sorry.
The prosecution submitted that to say "it's just so spur of the moment" can only be construed as the accused saying he engaged in the alleged conduct impulsively in the spur of the moment.
Moreover, the prosecution submitted that to say " ... but if I did do it, I'm sorry" can only be sensibly construed as the accused entertaining and leaving open the proposition that he may have done what was alleged. If he knew he was not disposed to engage in such conduct, one would not expect him to leave open the proposition that he did do it and offer an apology.
The prosecution reiterated that I do not have to be satisfied beyond reasonable doubt that these comments were an admission before I can take them into account and weigh them in the balance in considering whether the accused is guilty. They are to be treated like any other form of circumstantial evidence.
Counsel for the accused submitted that the pretext call is of no assistance as there are no admissions and there are comments of “I don’t remember”. This cannot be used either as an admission or consciousness of guilt. Further, it was submitted Ms B does not ever put to the accused any specific allegation of conduct. It is all prefaced in ‘sexual abuse’ but without delineating the abuse.
I discuss these matters further below at [271]-[283].
In relation to the Facebook messages (Exhibit 4), counsel for the accused submitted the messages “cut both ways” in that while there are assertions of conduct, the messages contain no admissions.
The prosecution submissions included the following:
(a)Such evidence is circumstantial evidence, and should be dealt with in the same way as other circumstantial evidence: R v Bl (No 2) [2016] ACTSC 355 at [19];
(b)As to circumstantial evidence generally:
(i)Each piece of circumstantial evidence does not have to be proved beyond reasonable doubt: Shepherd v The Queen at 579- 580;
(ii)Circumstantial evidence should not be looked at in isolation or in a piecemeal fashion. Rather, it needs to be looked at against the totality of the prosecution case: R v Hillier at [48].
(iii)In Wood v The Queen [2012] NSWCCA 21; 84 NSWLR 581 the NSW Court of Appeal observed at [53]:
it would be wrong for a jury to acquit an accused merely because it harbours reasonable doubts about some inculpatory evidence, though it ignores or unduly minimises other, more compelling evidence of the accused's guilt. As it is often the case that "one piece of evidence ... resolves doubts as to another" (Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)), it is necessary to weigh and consider the totality of the evidence: Hillier at [48]-[49]. In doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42](Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA).
(c)It is for the tribunal of fact to determine what to make of the admission and the weight to be given to that evidence.
Consideration on Tacit Admissions
According to the Evidence Act an “admission” means a previous representation that is:
(a)Made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceedings); and
(b)Adverse to the person’s interest in the outcome of the proceeding
It is a question for the tribunal of fact whether it is an admission: R v Plevac (1995) 84 A Crim R 570 at 579-580; R v JGW [1999] NSWCCA 116 at [37]-[41]. See also Graham v The Queen (1998) 195 CLR 606 at [1]-[2], [40], [45].
Evidence of the accused’s response to an accusatory statement is receivable as an admission subject to Pt 3.4 of the Evidence Act, including whether the reception of the admission would be unfair within the meaning of s 90 of the Evidence Act, as to which see Em v The Queen [2007] HCA 46; 232 CLR 67 at [109], [112], [179], [196]. See also DPP (NSW) v Sullivan [2022] NSWCCA 183, where the accused’s admissions in a police interview were found to be unreliable as the accused did not have an actual recollection of events and was instead speculating or hypothesising about them. It was unfair to permit the prosecution to use these admissions for their truth: [53]-[54]. Similarly in this case, there is a significant element of unreliability in relation to the so-called admissions.
I also note concerning equivocal or ambiguous admissions the following statement by Roden J in R v Smith (1981) 5 Crim LJ 161 (NSWCCA).
It is essential, if that evidence is to be regarded as capable of supporting a conviction, that it be unequivocal and that it be inconsistent with innocence
I further note the following concerning consciousness of guilt and highly ambiguous evidence in R v White [1998] 2 SCR 72 (R v White) at [22]:
It has been [recognised], however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt, it is highly ambiguous and susceptible to jury error. As this Court observed in Arvangioli, the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt.
In my view the ‘tacit admissions’ in this case may be characterised as highly ambiguous evidence.
In R v Nyugen [2001] VSCA 1; 118 A Crim R 479 (R v Nyugen), Winneke P approved the above passage in R v White and further stated:
.. Properly directed, the jury should … have been told that conduct such as that relied upon by the Crown could stems from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt
See also Kirby J in Conway v The Queen [2002] HCA 2; 209 CLR 203 where his Honour approved the comments of Winneke P in R v Nyugen.
R v Ogunseye [2021] QCA 192 concerned a pretext call where the appellant said “sorry”. In that case there was disagreement concerning the meaning of the term sorry within its cultural and linguistic context. The Court emphasised that it was a matter for the jury to decide as to the weight to be given.
Further, in R v Cavalii [2010] QCA 343; 206 A Crim R 306, it was stated at [14] that the jury must be satisfied that the responses amounted to an acceptance of the truth of what was asserted. That was particularly so where it was possible that the appellant’s responses did not indicate agreement to specific allegations. These comments are apposite in the case before me. See also the comments in R v ON [2009] QCA 62 at [39].
The ‘tacit admissions’ as put forward by the prosecution do not amount to ‘admissions’ as I am not satisfied that they amount to an acceptance of the truth of what was asserted.
The specifics of the allegations were not put to the accused in the call, and his responses were in my view equivocal and do not amount to admissions or consciousness of guilt.
I have similarly formed this view concerning the accused’s Facebook messages to Ms A, and the call between the accused and Ms A’s husband. I also include in this category the Facebook messages concerning Ms B.
Consideration and Conclusion
First complainant – Ms A
At a number of points in her NSW Police Statement Ms A emphasised that despite what the accused had done to her, he had a loving, caring and gentle nature. She explained how given her parents were busy at work, the accused would attend Ms A's school and other events in a de-facto parenting capacity. He would give her pocket money. Ms A described the accused as her "knight in shining armour" and that she really looked up to him because of all the things he did for her. This it was submitted by the prosecution enhanced the reliability of her account. That submission is in my view clearly correct.
Ms A experienced post-natal depression shortly after giving birth to her second son. She voluntarily admitted herself to a psychiatric facility where she received treatment for a brief period. Thereafter, she received medical treatment in relation to her depression up until the point of her suicide in March of 2022. She self-managed her medication and attended to her prescriptions.
The fact that Ms A suffered from depression and anxiety does not of itself affect the assessment of her credibility, or the reliability of her evidence. There is no evidence before the court which would suggest that depression and anxiety are disorders which tend to make a person dishonest, prone to exaggeration, or have an effect on memory.
In R v FL [2005] QCA 104 the Queensland Court of Appeal considered a submission that an accused's convictions for sexual assault were unsafe for a number of reasons, including that the complainant suffered from alcoholism and depression, thus rendering her evidence unreliable. The Court rejected this submission, noting at [17] that:
Others of the submissions might be thought to carry little or no weight: for example, it is difficult to see how the fact that the complainant had been on medication for depression and alcoholism impugned her credibility ...
The Court continued at [29] that "[a]s to depression and hallucinations: there was no evidence that depression impaired credibility.”
In R v Medic (No 16) [2017] NSWSC 104 Bellew J considered evidence that a prosecution witness had experienced PTSD, hallucinations, had a depressive condition and had been drinking heavily. His Honour observed at [15] that:
The mere fact that Kaminic has been treated for a depressive condition does not render the proposed crossexamination such as would substantially affect his credibility, nor does the evidence of his episodic drinking.
Similarly in the case before me, I do not accept that Ms A’s depression undermined her credibility.
Due to Ms A’s tragic passing the prosecution accepts that the accused was unable to cross-examine Ms A. The accused did not have an opportunity to test her evidence to the extent that would ordinarily be the case. That is a matter that I will have to consider in assessing the strength of Ms A's account of the alleged offending. It is a matter for me as the tribunal of fact to determine what allowances will be made on account of the inability to cross-examine, and the weight that would be attached to her statement to NSW Police.
Complaint Evidence relevant to Ms A
Ms A’s husband gave evidence that Ms A first disclosed to him in 2003 that she was sexually abused by the accused. He said that Ms A would raise the issue of the accused sexually abusing her every few months after it was initially raised. He gave evidence that in the two years leading to Ms A's death, she would raise the abuse committed by the accused on a daily basis.
Ms A’s husband gave evidence that there was a mutual agreement that "going into finite detail would probably not be comfortable for either of us.” Ms A did however state that there was no intercourse, and on occasion, she disclosed that there was unwanted touching of her private areas and "a degree of oral sex from him. " The prosecution noted that the disclosures made to Ms A’s husband are consistent with what Ms A told NSW Police the accused did to her. The reference to "a degree of oral sex" is consistent with Ms A’s reference in her NSW Police Statement to the uncharged acts in NSW involving the accused kissing Ms A on the vagina and asking her to kiss his penis.
Ms C, Ms A’s niece, gave evidence that around the time of the birth of Ms A’s second son, Ms A disclosed to her that the accused had engaged in acts of a sexual nature with her. Ms C said that Ms A would talk about the abuse committed against her by the accused regularly. Ms C gave evidence that her mother died on 8 January 2018. In the days leading up to her death Ms C and Ms A were at the mother's house in Queensland, looking after her. One night, at about 11:00 pm, Ms A said that on one occasion she sat on the accused's knee and that he put his hands down her pants and that the accused had an erection. Ms A gave a similar account to Ms C in 2019 when they were staying at the Sunshine Coast in Queensland for the occasion of Ms B's graduation from university. This account is broadly consistent with what Ms A told NSW Police. I have discussed this evidence earlier at [41]-[48].
Ms A’s brother in law, Mr I, gave evidence that in about 2004 Ms A first disclosed to him that the accused had engaged in acts of a sexual nature with her. He said Ms A disclosed to him that the accused would insert his fingers in her. She only went into detail once, but the issue of the accused sexually abusing her was raised "reasonably often". I have discussed this evidence at [49]-[53].
In relation to Count 1, the prosecution accepts that I may have reservations about finding the offence proved based solely on Ms A’s NSW Police Statement alone. However, when that statement is considered in conjunction with the complaint evidence, the tendency evidence, and the accused's ‘tacit’ admissions, the prosecution submits that I would be satisfied, beyond reasonable doubt, of the accused's guilt.
The prosecution of course bears the onus of proving the guilt of the accused beyond reasonable doubt. The prosecution in my view has not done so. Having assessed all the evidence I am not satisfied beyond reasonable doubt in relation to Count 1 concerning Ms A. In accordance with the direction in Murray I must scrutinise the evidence carefully. Having done so it is clear that the fact that there is a written statement without cross-examination undermines the Prosecution’s ability to meet their onus. The complaint evidence, while significant, cannot in my view overcome that basic deficiency in this case.
As to the so-called ‘tacit’ admissions I have dealt with that evidence earlier and in my view such evidence is not of great significance and cannot overcome the tragic flaw in this case, that the complainant Ms A is deceased and has not been cross-examined. In coming to this conclusion I have also taken into account all the evidence including expert evidence and the tendency evidence discussed earlier.
I have not given myself any of the warnings or suggestions which are prohibited by ss 80 and 80A of the Evidence (Miscellaneous Provisions) Act and s 165A of the Evidence Act.
I am of course well aware that I may convict on the complainant’s uncorroborated evidence.
The decision that I have reached is that although the allegations made by Ms A appear credible and it is likely that Ms A was sexually interfered with in some way by the accused, I have what I consider to be reasonable doubt as to the evidence concerning Count 1. That doubt arises from the combination of a number of matters, including most importantly that the complainant Ms A was not available to be cross-examined, the decades of delay and consequent forensic disadvantage, and that complaint evidence included evidence that concerned brothers in the plural. In the circumstances of this case, these matters give rise to a reasonable doubt.
In light of the evidence led by the prosecution, I have a grave suspicion surrounding the conduct of the accused towards Ms A. Nevertheless, that is not sufficient for proof beyond reasonable doubt in relation to the specific allegations concerning Count 1.
Second complainant, Ms B
Ms B presented as a credible witness who was doing her best to fairly recollect events from approximately 40 years ago. Where Ms B could not remember a matter, she readily conceded so. If she did not know the answer to a question, she conceded that was the case.
Ms B also described some positive aspects of the accused's character. She said "he was -you know, he was very loving - he wasn't a horrible mean person.”
The prosecution correctly submitted that this added to the reliability of Ms B’s evidence.
Ms B stated that the reason she did not make a contemporaneous complaint is that she felt she might get into trouble, she felt ashamed, and she feared how her father might react. She stated that her father was an angry man, and she was concerned that he might bash or kill the accused and end up in jail himself. This is consistent with Dr Sansum's evidence that child victims of sexual abuse may feel embarrassed about what has happened, may fear getting into trouble, and may fear the impact that a disclosure could have on their family.
To the extent that counsel for the accused sought to impugn the reliability of Ms B's evidence by suggesting that she was wrong about her recollection of what room she stayed in while at Holder, I am not persuaded that is of any great forensic utility in this case.
A witness recalling events after a significant effluxion of time may recall those aspects of the events that it was perceived to be the most significant at the time. In my view, the exact identification of the room is not necessarily telling.
Complaint evidence relevant to Ms B
Ms B kept a diary in which she made entries proximate to the alleged offending in which she described:
... something that happened when I was only little. I can't say what it is in case someone reads it. It has been bottled up inside me for so long and I feel like yelling it out to the world but I know I can't. Anyway, I have said too much already ...
This provides corroborative support to Ms B’s oral evidence. In examination-in-chief and re-examination Ms B confirmed that references in her diary to being sexually abused were a reference to sexual abuse committed by her uncles ie: the accused and Brother X.
Ms E, a childhood friend, gave evidence that on one occasion she accompanied Ms B when they stayed at the Holder address during school holidays. The accused was not present on that occasion. While at the Holder address, the two girls were writing songs. Ms B came up with lyrics involving the words "don't touch me", "stop touching me" and "doing things to me.” Ms E then asked Ms B "what was that crap" at which point Ms B burst into tears and was "bawling her eyes out" and said that her uncles did things to her. Ms B made Ms E promise not to tell anyone.
The lyrics of the song, and Ms B's reaction in bursting into tears and swearing Ms E to silence, are consistent with Ms B's version of events and the reactions of child sexual abuse victims discussed by Dr Sansum. Dr Sansum noted that child sexual assault victims may feel embarrassed about what has happened, may fear getting into trouble, and may fear the impact that a disclosure could have on their family.
Ms B's sisters, Ms C and Ms D, and her childhood friend, Ms F gave evidence that Ms B made disclosures in about 1984 that Ms B's uncles, the accused and brother X, had sexually abused her. They said that Ms B did not go into any detail as to what the sexual abuse involved. That is consistent with Ms B's evidence that she had not disclosed to anyone the detail of what the accused did to her until she participated in her EICI.
Ms G gave evidence that Ms B said that the accused had put his penis in her and touched her breasts. The prosecution case is that never happened. Ms B's evidence was that she never disclosed the detail of what happened to her to anyone. No other complaint witnesses relevant to Ms B recount going into any detail. The prosecution case is that Ms G is mistaken in her recollection. The prosecution submitted that I would put Ms G’s evidence to one side when dealing with the evidence of Ms B and I do so.
In relation to Count 2 on the indictment, the prosecution submits that Ms B's evidence by itself, and without more, provides a sufficient basis on which to be satisfied, beyond reasonable doubt, that the accused engaged in the offending alleged. The prosecution submitted that there is also the combined effect of the complaint evidence, the tendency evidence, and the evidence of the accused's ‘tacit admissions’.
The decision that I have reached is that the allegation made by Ms B is credible and it is likely that the complainant was sexually interfered with by the accused. Nevertheless, I have a reasonable doubt about the guilt of the accused concerning the allegations relevant to Count 2. That doubt arises from the combination of factors including delay and consequent forensic disadvantage including the death of relevant individuals, and further, the nature of the complaint evidence concerning “uncles”. I note the diary does not refer specifically to the accused and the pretext call refers to other brothers of the accused including Brother X.
These matters individually may not give rise to a reasonable doubt. However, taken together, in my view these matters give rise to a reasonable doubt concerning Count 2.
The combination of these factors means that I am not able to accept that the case concerning Count 2 is proven by the prosecution to the high standard that the law requires to find the accused guilty of Count 2.
Again, as for Count 1 and the allegations concerning Ms A, there is grave suspicion surrounding the conduct of the accused toward the complainant Ms B. Nevertheless on each count the accused is not guilty and a verdict of acquittal must be entered.
Orders
I return the following verdicts.
1. The accused is not guilty of Count 1
2. The accused is not guilty of Count 2
| I certify that the preceding three-hundred and twenty [320] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rebecca Emder Date: 30 March 2023 |
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Amendments
| 05 June 2023 | Correct paragraph numbering | Paragraphs: [247]-[320] |
| Replace [262]-[286] with [259]-[283] | Paragraphs: [25], [61], [179], [180(d)], [201] | |
| Replace [274]-[286] with [271]-[283] | Paragraph: [268] |
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