105 As to count 5, W said in the fourth interview that Ms O had also used a fork on him. When he was asked to tell the interviewer about one time that she used a fork, he replied:Q. So tell me about that one time that she used a fork?
A. One time she used a fork and she was, um, eating her dinner and then after a while when she finished, then when …(indistinct)… went to bed cos I asked [Ms O] if I could stay up a bit later - - Q. Mm hm.
A. - - and I was watching Spiderman and then after a while, [Ms O] got a fork out of the drawer and she put it in the middle of my bottom and then end bit of it where all the spikes are and then she wouldn't stop it (Mr B's combined blue and green AB 387).
Count 6 106 In the fifth interview, W was reminded that he had said that he had touched Ms O's 'flossie' (vagina) more than one time. After apparently agreeing that he had said this, W was asked to tell the interviewer about the last time he touched Ms O's 'flossie'. W said that the last time he had touched her 'flossie' was on an occasion when he was 6 years old (Mr B's combined blue and green AB 423). He described how Ms O called him into her room and told W to touch her 'flossie'. He said that on this occasion, Mr B came into the room and told him to 'keep on doing it' (Mr B's combined blue and green AB 424). When W refused to do so, Mr B struck him across the face. W said that he then went to his room and lay down.
107 W said the following morning, Ms O pulled him into her bedroom and said 'Touch my flossie, rub it' (Mr B's combined blue and green AB 425). He complied with this demand. W said that Mr B 'came along' and said to him 'You're doing [a] really, really, really good job' (Mr B's combined blue and green AB 425).
108 At one point in the interview, W said:
A. So I did and then, um - - and then, um - - and then [Mr B] came along and said, 'Keep on doing it, you're doing a really good job'. And then I said, 'No, because it's disgusting' and, um, cos normal mums don't do it and then he said, 'Normal mums do do it', and I said, 'No, they don't'. And then - - then we went in to [sic] state [sic] care and I - - I thought normal mums did do it but when I went first in to [sic] state [sic] care, um, I knew mums - normal mums - didn't do it, cos where I went no-one did it (Mr B's combined blue and green AB 426).
Count 7 109 W's account of count 7 is in the first interview. W told the interviewer that Mr B 'put his mouth on it' (Mr B's combined blue and green AB 288). Later, when the interviewer asked W to tell him 'all about the bit about with his mouth', W said that Mr B 'put my doodle [penis] in his mouth and he kept rubbing it, um, kept on going forward and backwards' (Mr B's combined blue and green AB 292). W described that when Mr B was moving backwards and forwards, he (Mr B) had W's 'doodle in his mouth' (Mr B's combined blue and green AB 292). W said that the incident stopped when Ms O pulled Mr B away (Mr B's combined blue and green AB 292).
Count 8
110 W's account of this offence occurs in the third interview. W said that Mr B 'put his willy in his -- well, my mouth and it was big' (Mr B's combined blue and green AB 359). W went on to describe Mr B's 'willy' as 'fat and hairy' (Mr B's combined blue and green AB 360). W said that he asked Mr B to stop, but 'he kept on doing it' (Mr B's combined blue and green AB 360). W described Mr B's action as 'going backwards and forwards … heaps and heaps of times' (Mr B's combined blue and green AB 360). W said that the incident stopped 'cos [Ms O] saw him' (AB 361).
Count 9
111 It will be remembered that Mr B was originally charged with sexually penetrating W by penetrating his anus with a spanner. He was acquitted of this charge, but found guilty of the alternative offence of indecent dealing (see the table in [4] of these reasons).
112 In his third interview, W described an incident which occurred in the shed. W said that Mr B 'got this metal spanner and he kept rubbing it against my bottom. And, um, he wouldn't stop it' (Mr B's combined blue and green AB 351). W described how Mr B kept rubbing the spanner up and down 'in the middle of my bottom' until 'it was bleeding' (Mr B's combined blue and green AB 352 - 353). W said that he told Ms O about the bleeding. According to W, Ms O told him to get a piece of toilet paper. W did as he was told. The next morning, W said he took the toilet paper off and 'it was all better' (Mr B's combined blue and green AB 352). W described the rubbing of the spanner as occurring on the outside of his clothing (Mr B's combined blue and green AB 352).
113 W went on to say that what occurred happened 'more than one time' (Mr B's combined blue and green AB 354). He was asked about this in his fourth interview. W described an incident where he said that Mr B came into his bedroom and put a hammer into the middle of his bottom (Mr B's combined blue and green AB 376 - 380). W said that there was more than one incident where Mr B used a hammer (Mr B's combined blue and green AB 381).
114 In his pre-recorded evidence, W explained, in examination-in-chief, that when he used the word 'hammer' in the visually-recorded interview, the implement that was actually used was a spanner (Mr B's combined blue and green AB 137).
Count 10
115 There was some confusion at trial about this offence, which was disclosed in W's first interview.
116 W described an incident which occurred in his bedroom (Mr B's combined blue and green AB 303 - 305). He said that Mr B entered his room, took his and W's clothing off and lay on top of W (Mr B's combined blue and green AB 306). W said that Mr B rubbed '[his] willy' (Mr B's combined blue and green AB 307), and that Mr B 'kept going up and down on me' (Mr B's combined blue and green AB 308). W described Mr B's body as having 'too much hair' and being 'really itchy' (Mr B's combined blue and green AB 307).
117 W explained that this incident stopped because Mr M came into the bedroom and told Mr B to 'get out' (Mr B's combined blue and green AB 309). W said that Mr M 'chucked all [of Mr B's] stuff out' and then he said (to Mr B) 'Never come back here' (Mr B's combined blue and green AB 308 - 309).
118 W described how, on the same night, Mr B returned to the Madeley address with Ms O's assistance (Mr B's combined blue and green AB 310). W said that he kept away from Mr B for 'two or three weeks' (Mr B's combined blue and green AB 312).
119 In his first interview, W spoke of another occasion when Mr B dragged W out of his bed and took him into Ms O's bedroom and 'had sex' with him (Mr B's combined blue and green AB 313). He described how Mr B was 'humping me, like going up and down', and that he felt Mr B's 'willy' 'on mine' (Mr B's combined blue and green AB 314 - 318). W said that his back was on the floor and that Mr B's back was in the air, so that they were 'stomach to stomach' (Mr B's combined blue and green AB 314). W went on to say that Mr B's 'willy' felt 'really weird … like goo … like really slimy …' (Mr B's combined blue and green AB 317).
120 Although W described two distinct episodes, the prosecutor, in his closing address, referred to them as one incident (ts 607 - 609). However, any confusion was dispelled by his Honour's summing up, which made it clear that the allegation the subject of count 10 was that in which W said Mr M intervened (ts 677).
Count 11
121 In his first interview, W described an incident where Mr B pulled his pants down and made W 'rub his willy' (Mr B's combined blue and green AB 297). W said he kept rubbing it because Mr B 'made me to [sic]' (Mr B's combined blue and green AB 298).
122 W said that the incident stopped when Ms O 'pulled me away from him and told him to get out' (Mr B's combined blue and green AB 298).
Other evidence given by W in the visually-recorded interviews
123 W gave evidence about other events:
(a) In his first interview, he recalled an occasion when he was sleeping in Ms O's bed with her. He said that, while Ms O was sleeping, Mr B pulled him out of bed, took him into the ensuite bathroom and touched his 'doodle' (Mr B's combined blue and green AB 299 - 300). Mr B then told W to go to his bedroom, which he did. After a while, he got up to get a drink and heard screaming from Ms O's bedroom. He opened the door to the bedroom and saw '[Mr B] was rubbing [Ms O's] boobs [breasts]' (Mr B's combined blue and green AB 300). The next morning, W said he heard screaming and crying. W said that he called police to come to the Madeley address, which they did. W said that police told Mr B, in substance, that if he did not stop rubbing Ms O's breasts in front of her children, he would 'have to go to gaol' (Mr B's combined blue and green AB 300). (b) In his fifth interview, he spoke about an occasion on which his oldest brother, D, 'bashed [him] up' by putting him in a headlock and punching him to the head and stomach (Mr B's combined blue and green AB 412 - 413).
(c) W testified that there were occasions where he saw Ms O and Mr B engaging in sexual activity. W mentioned one such occasion in his fourth interview (Mr B's combined blue and green AB 398).
(d) In his fifth interview, W recalled an occasion when he removed his older sister R's cat from the swimming pool. W said that the cat was buried in the sandpit. He described how R was later digging holes in the sandpit and found the cat's eyeballs (Mr B's combined blue and green AB 430). W said that this occurred on a day on which he rubbed Ms O's 'flossie' (Mr B's combined blue and green AB 431).
W's examination-in-chief 124 As we have said at [99] of these reasons, W's evidence was pre-recorded on 8 and 9 April 2015.
125 His examination-in-chief was brief. Apart from correcting what he said in the fourth interview about his reference to the use of a hammer (see [114] of these reasons), W said that, on the occasion police were called to the Madeley address, it was R who called police. W said that, as R was about to call police, Mr B came out and smashed her mobile telephone. R called police using a spare telephone (Mr B's combined blue and green AB 138).
126 After W's evidence, with the parties' consent, the prosecutor informed the jury that, in a proofing meeting he had with W on 1 April 2015, W, whilst watching his first interview, said that police did not actually come to the house on the occasion Mr B smashed R's telephone (ts 434 - 435).
W's cross-examination by Mr Sutherland
127 Mr Sutherland cross-examined W on 8 April 2015. The broad thrust of that cross-examination was that the allegations W made against Mr B in the visually-recorded interviews were completely false. W did not accept the many propositions that were put to him to that effect.
128 W denied that in proofing, he had told the prosecutor that police did not come to the Madeley address. He said that he told the prosecutor that police had in fact attended the Madeley address (Mr B's combined blue and green AB 142).
129 Mr Sutherland cross-examined W about his allegation that Mr B had penetrated his bottom with a hammer. Mr Sutherland highlighted the inconsistency between what W had said in his visually-recorded interview and what he told the prosecutor about the hammer being, in fact, a spanner.
130 W denied Mr Sutherland's suggestion that he had made up stories about Ms O and Mr B as a result of Ms MD speaking to him about a CD he had stolen (Mr B's combined blue and green AB 148).
131 W denied that he had made up the story about police coming in response to R's telephone call (Mr B's combined blue and green AB 153).
132 It is apparent that, as the cross-examination proceeded, W's behaviour deteriorated markedly. He displayed animosity, anger and disrespect towards Mr Sutherland who conducted the cross-examination in an entirely reasonable and proper manner. As Mr Sutherland put each allegation involving Mr B to W and suggested that what he had said was untrue, W's treatment of Mr Sutherland became not merely disrespectful, but aggressive, to the point where W accused Mr Sutherland of being 'deaf' (Mr B's combined blue and green AB 152 - 153). On several occasions, W responded to questions with the statement 'I don't care' (Mr B's combined blue and green AB 153). When Mr Sutherland questioned W about the time of the day on which count 6 occurred, he answered in a sarcastic way 'I don't know', or, 'Don't know' (Mr B's combined blue and green AB 154). The cross-examination deteriorated to the point where Derrick DCJ adjourned the proceedings earlier than usual before lunch, to which W replied 'Woo hoo' (Mr B's combined blue and green AB 155).
133 Unfortunately, W's behaviour after the lunch break was no better. W kept touching the microphone in the remote witness room despite being told by his Honour not to do so. W confirmed that the incidents the subject of counts 6 and 7 happened, but his responses in doing so were insolent to say the least (Mr B's combined blue and green AB 156 - 158). At one point, W referred to Mr Sutherland as a 'retard' (Mr B's combined blue and green AB 158).
134 Derrick DCJ adjourned the proceedings for 10 minutes to allow W 'to compose himself' (Mr B's combined blue and green AB 159). Upon their resumption, Mr Sutherland sought to ask questions concerning count 8. W confirmed that the act of fellatio had occurred. He responded to Mr Sutherland's questions by again referring to him as a 'retard' and characterising the questions he was asked as 'retard questions' (Mr B's combined blue and green AB 160).
135 When Mr Sutherland sought to ask W about what he remembered about the use of a spanner, W refused to engage the topic. At this point, Mr Sutherland said, 'This is unproductive, your Honour' (Mr B's combined blue and green AB 161).
136 Derrick DCJ then muted the sound to the remote witness room and spoke to Mr Sutherland. Mr Sutherland accepted that he had covered 'the spanner issue' and that he proposed to quickly touch upon a couple of other issues (Mr B's combined blue and green AB 162). When the sound link to the remote witness room was re-established, Mr Sutherland attempted to ask W about the allegation the subject of count 10. W refused to answer Mr Sutherland's question. When his Honour asked W whether he was going to say anything about the matter, W replied 'No, I'm not' (Mr B's combined blue and green AB 163). Mr Sutherland then ceased his cross-examination of W.
137 Derrick DCJ adjourned the proceedings to 9.30 am the following day, 9 April 2015, in order for Mr Monisse to cross-examine W and, if necessary, for the prosecutor to re-examine.
W's cross-examination by Mr Monisse
138 In broad terms, Mr Monisse put to W a case theory to the effect that:
(a) all of the allegations W made were lies; (b) the lies were motivated by the fear that he would have to go and live with Ms O and be bashed up by D (Mr B's combined blue and green AB 181 - 183); and
(c) the allegations that Ms O sexually penetrated W with a knife, a spoon and a fork (counts 3 to 5) were derived from the nursery rhyme 'Hey Diddle Diddle' (Mr B's combined blue and green AB 187 - 192).
139 W did not accept these propositions, although as to (b), W accepted that when he left the family home on 27 April 2012, he was happy to get away from D (Mr B's combined blue and green AB 183). 140 During the course of Mr Monisse cross-examining W about count 2, W said, for the first time, that Mr B had put a fork in his (W's) bottom (Mr B's combined blue and green AB 187). When W was asked an open-ended question to the effect of whether anybody else apart from Mr B had put a fork in his bottom, W replied 'Mum' (Mr B's combined blue and green AB 190).
141 W agreed with Mr Monisse's suggestions that he did not like Mr B, and that he wanted him to go to gaol. W added '… all the stuff he'd done … because all the stuff he did to us' (Mr B's combined blue and green AB 193).
142 Mr Monisse cross-examined W on the spanner/hammer issue. At one point, W said that he had not used the word 'hammer' in his visually-recorded interview (Mr B's combined blue and green AB 195 - 196).
143 Mr Monisse took W to the events of 31 August 2013. W denied talking to Ms MD about stealing something on that day. He also denied that he stole things generally, such as money and mobile telephones, or that he tells lies (Mr B's combined blue and green AB 199 - 201). However, later in the cross-examination, W said that he had stopped stealing 'a lot' (Mr B's combined blue and green AB 201 - 202).
144 W consistently denied the many accusations put to him by Mr Monisse that he made up the allegations against Ms O and Mr B.
W's re-examination by the prosecutor
145 In re-examination, W said that:
(a) he saw Ms O naked when he was called into her room 'to do rude stuff to her' (Mr B's combined blue and green AB 204); and (b) while one of the reasons he did not wish to live with Ms O was because of D, there was another reason, namely, the 'rude stuff' that Ms O and Mr B did (Mr B's combined blue and green AB 205).
M's evidence 146 We have already canvassed M's evidence in detail earlier in [44] - [63] of these reasons. It is unnecessary to repeat what we have written.
Dr Rajiv Dilipkumar Shah's evidence
147 Dr Shah is a developmental paediatrician employed by the Child Protection Unit at Princess Margaret Hospital.
148 On 1 November 2013, he medically examined W and M. At that time, W was 9 years 4 months old and M was 5 years 8 months old (ts 441 - 442).
149 Dr Shah said that it was quite possible for objects such as a fork handle, spoon handle or hammer handle to be inserted into a child's anus. Bearing in mind when the allegations were said to have occurred, Dr Shah said that even if blunt objects of this kind were inserted 'acutely', it would be 'very rare' to see any evidence of injury in the form of scars 'or anything else' (ts 442). He explained that healing of the anal area is 'very, very rapid' (ts 442).
150 Dr Shah described W's examination as 'normal' with no evidence of any anal injury. He also described his examination of M's genital and anal areas as 'normal' (ts 442 - 443). Dr Shah said that his findings with respect to W and M neither supported nor refuted the allegations of sexual abuse (ts 443).
151 In cross-examination by Mr Monisse, Dr Shah said that if the tines of a fork were inserted into a child's anus with 'any sort of force', he would expect that to cause a 'significant bleed' which would require urgent medical attention. He said that if the fork was inserted deep enough, it could cause a perforation of the bowel (ts 445).
Ms MD's evidence
152 Ms MD testified that she has been a registered carer with the DCP for approximately 14 years (ts 447). Over that time, she has looked after 80 children on both a long-term and short-term basis. At the time she gave evidence, she had six foster children and four children of her own. Living with Ms MD at the time were her two biological (twin) sons, and one foster boy who had been with her for 12 years (ts 447).
153 Ms MD said that M and T were placed in her care in April 2012, and W and S were placed in her care around July 2012 (ts 448).
154 She recalled a conversation on a weekend with W and M in 2013. As a result of what she was told, she contacted police and later, her case manager (ts 449).
155 In cross-examination by Mr Monisse, Ms MD agreed that on or about 31 August 2013, she had a conversation with W about a CD that he had stolen. Ms MD confirmed that W admitted to her that he had stolen the CD. She said that, at the time, he had been 'doing a lot of stealing', including small sums of money and mobile telephones (ts 453 - 454). Mr Monisse then suggested that W had 'issues about telling the truth' to which Ms MD responded 'No, [W's] pretty up front about stuff … shockingly upfront about stuff' (ts 454). Ms MD said that although she had spoken to W about stealing, he still did it, but told her about it. She described him as 'almost like a kleptomaniac with stealing' (ts 454 - 455).
Detective Senior Constable Ian Landreth Berry's evidence