Kassab (a pseudonym) v R

[2021] NSWCCA 46

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kassab (a pseudonym) v R [2021] NSWCCA 46

Hearing dates:

29 July 2020

Date of orders:

26 March 2021

Decision date:

26 March 2021

Before:

Johnson J at [1];
N Adams J at [3];
Ierace J at [346].

Decision:

(1) Leave to appeal against conviction is granted.

(2) The appeal is dismissed.

Catchwords:

CRIME — Appeals — Appeal against conviction — whether verdicts were inconsistent or otherwise unreasonable – where both complainants alleged certain offences occurred in a garage at a time when the garage had not yet been constructed – where both complainants allege that certain offences occurred at a family home in 1974 or 1975 but they did not live at the premises until 1976 – where the applicant was acquitted on these counts – whether the jury’s doubts in respect of those counts were attributable only to doubts about the complainants’ credibility – held, the verdicts were not inconsistent or otherwise unreasonable

CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether the trial judge erred in failing to exclude the whole of one complainant’s evidence on the basis of hypnosis or EMDR therapy – where the complainant denied having hypnosis therapy – where EMDR therapy was undertaken after giving a statement to police but before trial and was not video recorded – where there was no indication that the complainant’s evidence changed following EMDR therapy – held, the trial judge’s finding with respect to hypnosis was a finding of fact in respect of which no error was demonstrated – held, the trial judge did not err in failing to exclude the evidence under s 137 on the basis of the EMDR therapy

CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether the trial judge erred in admitting evidence of complaints made to friends, partners and relatives in the decades following the alleged offences – meaning of “fresh in the memory” under s 66(2) of the Evidence Act – where traumatic events are likely to remain fresh in the memory for many years after the events – where complaints were made in similar terms many times over the relevant period – held, no error in admitting complaint evidence under s 66(2)

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Evidence Act 1995 (NSW), ss 59, 60, 66, 108(3), 136, 137, 165

Cases Cited:

Cabot (a pseudonym) v R [2018] NSWCCA 265

Collins v R [2020] NSWCCA 198

Director of Public Prosecutions (NSW) v J G [2010] NSWCCA 222

Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61

Hawi v R [2014] NSWCCA 83

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

Kim v R [2020] NSWCCA 288

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

Maughan v R [2020] NSWCCA 51

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

Pell v The Queen [2020] HCA 12; 94 ALJR 394

R v Bauer (2018) 266 CLR 56; [2018] HCA 40

R v Gregory-Roberts [2016] NSWCCA 92

R v Jenkyns (1993) 32 NSWLR 712

R v KG (2001) 54 NSWLR 198; [2001] NSWCCA 510

R v McFelin [1985] 2 NZLR 750

R v O’Donoghue (1988) 34 A Crim R 397

R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509

R v Tillott (1995) 38 NSWLR 1

R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151

R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Xu v R [2019] NSWCCA 178

Category:

Principal judgment

Parties:

Tony Kassab (Applicant)
Regina (Respondent)

Representation:

Counsel:
J Glissan QC (Applicant)
A Moutasallem
E Balodis (Respondent)

Solicitors:
Millenium Lawyers (Applicant)
NSW Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/00010411

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

30 July 2019

Before:

Weber SC DCJ

File Number(s):

2017/00010411

Judgment

1. JOHNSON J: I have had the considerable advantage of reading, in draft, the judgment of N Adams J. I agree entirely with her Honour’s judgment and the orders proposed by her Honour.

2. With respect to the first ground of appeal, having reviewed the evidence in the trial, I am also satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on all counts upon which he was convicted.

3. N ADAMS J: This appeal concerns allegations of historical child sexual assault. The applicant is the paternal uncle of the two complainants.

4. In order to protect the anonymity of the two complainants, their names, as well as those of their family members, have been reduced to initials in the Appeal Book and submissions. The two complainants were referred to as YD and VG, the applicant as SH and so on. In the interests of readability, I propose to refer to the complainant YD as Yvette (not her real name) and VG as Victoria (not her real name). In relation to other witnesses I propose to refer to them as “the applicant”, “the mother”, “the father” etc. Where that is not possible, I will refer to them by first names other than their real names but starting with the same letter.

5. The two complainants allege that they were sexually assaulted as children both by the applicant and another uncle, FH, whom I shall refer to as Uncle Frank. The two complainants made disclosures of the alleged abuse over the years to friends, boyfriends, husbands and relatives before each of them finally went to police in 2013.

6. A joint trial commenced against both uncles in 2018 before Armitage ADCJ but was aborted. Uncle Frank became ill and the DPP ultimately did not proceed to trial against him. There was never any suggestion that the two uncles had acted in concert in any way.

7. The trial judge, Judge Weber SC, conducted a pre-trial hearing from 5-17 June 2019 to consider objections made on behalf of the applicant. Two of the rulings made on 17 June 2019 by his Honour are the subject of ground 2.

8. On 18 June 2019, the applicant pleaded not guilty on indictment to 34 charges alleged to have been committed on both Yvette and Victoria between 1974-1989. The trial proceeded before his Honour and a jury of twelve.

9. On 22 July 2019, the jury entered verdicts by direction on three counts (31, 32 and 34). Those counts all pertained to Victoria. She failed to give any evidence to support count 34 and in relation to counts 31 and 32 she did not describe the sexual assaults as occurring without her consent (she was over the age of 16 years by that stage).

10. On 30 July 2019, the jury returned verdicts of guilty in relation to 22 counts and not guilty in relation to the remaining nine counts.

11. On 11 October 2019, the applicant was sentenced in relation to the 22 offences upon which he was convicted to an aggregate sentence of 12 years imprisonment with a non-parole period of 7 years to commence on 30 July 2019 and expire on 29 July 2026.

12. The applicant seeks leave to appeal against his convictions under s 5(1) of the Criminal Appeal Act1912 (NSW). He relies upon the following two grounds of appeal:

“Ground 1:   That the verdicts for counts 5-9, 11-12, 14-16, 19, 21-30 and 33 were unreasonable.

Particulars

(a) the guilty verdicts were inconsistent with the not guilty verdicts for counts 1-4, 10, 13, 17, 18 and 20; and

(b) The guilty verdicts were otherwise unreasonable taking into account the whole of the material available.

Ground 2:   The trial miscarried by reason of the wrongful admission of evidence.

Particulars

(a) The trial judge erred in allowing over objection the evidence of [Victoria]; and

(b) The trial judge erred in allowing over objection the evidence of various complaint witnesses.”

13. There is no application for leave to appeal against the severity of the sentence.

14. If the applicant is successful on ground 1 the appropriate order is one of acquittal on all counts and there would be no need to go on to consider ground 2. If the applicant is unsuccessful on ground 1 but successful on either ground 2(a) or ground 2(b) the appropriate order would be one of a new trial. In those circumstances I propose to consider ground 1 first.

Ground 1: unreasonable verdicts

The Crown case

The evidence of the complainants Victoria and Yvette

15. Yvette was born in November 1968 and Victoria was born in June 1971. They were both born in Syria and arrived in Australia in 1972 with their mother. Their father had already migrated. The applicant and his family arrived in Australia shortly thereafter. The two families lived together in rented premises for a couple of years at which time some of the family members purchased the premises next door (“the premises”). A Memorandum of Transfer tendered at trial (Exhibit A17) established that the premises were transferred to the applicant and his wife and the applicant’s brother MH (“Mark”) on 28 July 1976. The evidence is that the complainants’ family moved into those premises shortly thereafter.

16. The evidence as to when the complainants’ family moved out of the premises differed. In 1979 or 1980 the two complainants and their mother returned to Syria on holidays. There was evidence at trial that they moved out of the premises upon their return to Australia.

17. All the offences were alleged to have occurred in the premises.

18. A significant amount of the evidence at trial comprised background details about: who the various members of the extended family were; what jobs they had at different times in the 1970s; how the children travelled to and from school; what year the complainants’ family moved into and out of the premises and other surrounding events. The cross-examination of the two complainants regarding the details of the alleged sexual assaults was by comparison relatively brief. This is explicable given that the applicant denied all offences.

19. The two families living together in the premises from 1976 until 1980 comprised the following members. The applicant’s family included his wife DH (“Donna”) and their three children EH (“Evan”) born February 1973, OH (“Olivia”), born in April 1974 and RH (“Richard”), born in January 1977. The two complainants lived with their parents and their brother PH (“Peter”). The two complainants were aged 6 and 8 years when they moved in and 10 and 12 years when they left.

20. There was no dispute that the complainants’ mother worked throughout the relevant time period at a factory. Although the complainants’ father also worked, there was a period in which he was unable to work due to injury. The complainants did not give evidence of this. The complainants describe the applicant as either being unemployed or working as a mechanic on vehicles at the premises. This was denied by the applicant and his family who gave evidence that he was employed throughout the period. The complainants’ evidence was that Aunt Donna had the role of looking after the children and doing the cleaning, but she worked early in the morning at a bakery for a period and sometimes worked at a Salvation Army shop. The evidence of the applicant and his wife and Olivia was that she (Aunt Donna) never worked while they were all living together at the premises.

21. The applicant placed reliance on the evidence about who worked where and when on two bases: it was said to be relevant to the opportunity the applicant had to sexually assault the complainants and, given some of the inconsistencies in their evidence when compared with other witnesses, it was relied upon as undermining the credibility of the two complainants.

22. I propose to summarise the evidence of the complainants in relation to the counts on the indictment and then summarise their evidence as to the surrounding circumstances.

Grooming of the two complainants

23. Victoria gave evidence that when the families first moved into the premises the applicant treated her well and would say that she was cute and pretty. Around the time that the families moved into the property, Victoria would receive money from the applicant for going into the bathroom with him and being “cooperative” or “good”. She said that telling him to “stop” was not being good. Victoria said that the applicant would call her over in Arabic, saying “come…pretty one”. The applicant would tell her that she was special, that he loved her, she was beautiful and she was his favourite. Victoria said that he was gentle and sweet when he spoke to her, and she truly thought the applicant cared for her. In some instances, Victoria said that although she felt uncomfortable, she thought it was fun because the applicant told her he loved her and was gentle with her. The applicant asked Victoria not to say anything and said that it was a secret between them. Victoria said that when she told the applicant that she would tell her father, the applicant responded that her father would believe him over her as they were brothers.

24. Yvette recounted the grooming as beginning around when she started school. The applicant would tell her she was a big girl and smile at her. Soon after this, the applicant started telling Yvette to come and sit on his lap while watching TV. He would tell her she was a good girl and pat her hair. The applicant would suck on her earlobe, which she said was ticklish and made her laugh. Yvette said that if she tried to hop off from his lap the applicant would grab her arm and turn her around, giving her a look as though he was disappointed in her. She said she did not want to upset the applicant and for him to get angry with her. He would say “don’t you want to be a good girl for uncle?”.

25. Around the time Yvette was six years old, the applicant began complimenting her, saying she was wearing a pretty dress, that she was nice and beautiful. He said she was a good girl and he loved her very much. The applicant would ask to see what was under her dress. After some time, she would show him her underwear without being asked and he would smile. She said she felt happy that it was making him happy.

26. The applicant subsequently began touching her vagina. When he did so he would tell her that she was a “good girl” and she was “doing the right thing”. Yvette recalled that the applicant began giving her money after touching her vagina. Yvette said that at this time she “liked him a lot… trusted him”.

The Indictment

Count 1: Indecent assault upon Yvette (s 76 Crimes Act) between 1 July 1974 and 31 December 1974

27. Yvette commenced school in 1974. She turned five that year. Her evidence was that all the offences committed by the applicant took place while she lived at the premises.

28. Yvette gave evidence that count 1 occurred at the end of her year in kindergarten. Count 1 was an allegation that was said to have occurred towards the end of 1974 at the premises. She alleged that the applicant was in the lounge room. Yvette stood in front of him when he touched her underwear and put his hands inside her underpants. He then patted and rubbed her on the vagina for a couple of minutes.

29. Given that Yvette’s evidence was that all the offences committed by the applicant took place while she lived at the premises, any alleged assaults on her could not have taken place in the time frame nominated by her.

30. The applicant was acquitted on this count. It is common ground at the appeal that the explanation for that was that the family did not move into the premises until mid-1976 at the earliest.

Count 2: Indecent assault upon Victoria (s 76 Crimes Act) between 1 September 1975 and 1 April 1976

31. Victoria commenced kindergarten in 1976. She turned five that year. Her evidence was that all offences committed by the applicant took place while she lived at the premises.

32. Victoria gave evidence that the applicant had indecently assaulted her in the bathroom of the premises between 1 October 1975 and 31 December 1975. She had gone to the bathroom to use the toilet. While she was still on the toilet the applicant came into the bathroom. When she finished, he lifted her up and placed her on the sink and started looking at her genital area and touching her there.

33. The applicant was acquitted on this count. It is common ground at the appeal that the explanation for that was that the family did not move into the premises until mid-1976 at the earliest.

Count 3: Indecent assault upon Victoria (s 76 Crimes Act) between 1 October 1975 and 31 December 1975

34. Victoria gave evidence that shortly after the count 2 incident she went to the bathroom again on a subsequent occasion and was followed into the bathroom by the applicant. He lifted her up and sat her on the sink. He then started rubbing her on the external skin of her genitals with his finger.

35. The applicant was acquitted on this count. It is common ground at the appeal that the explanation for that was that the family did not move into the premises until mid-1976 at the earliest.

Count 4: Indecent assault upon Victoria (s 76 Crimes Act) between 1 October 1975 and 31 December 1975

36. Victoria gave evidence that a few months after count 3, and prior to when she commenced school, she was again indecently assaulted by the applicant in the bathroom. The incident occurred during the day. She gave evidence that the applicant picked up a bar of soap and started to rub the soap on her vagina area. She began to experience pain and discomfort while this was occurring and also later when she was urinating.

37. The applicant was acquitted on this count. It is common ground at the appeal that the explanation for that was that the family did not move into the premises until mid-1976 at the earliest.

Count 14: Indecent assault upon Yvette (s 76 Crimes Act) between 16 January 1976 and 1 July 1977

38. The applicant’s son Richard was born on 16 January 1977. Yvette described an occasion sometime after he was born when the applicant was sitting in the lounge room and called her over to sit on his lap. He then pulled aside her underpants and touched her vagina and clitoris for a couple of minutes (she did not know that is what those body parts were called at the time).

39. It is to be noted that Yvette’s evidence was that this count occurred shortly after count 1. She was able to fix count 14 in time because her cousin Richard was born. Her evidence was she thought her cousin Richard was born in January 1976, rather than on 16 January 1977. This could explain the discrepancies in her timing in relation to the first count, especially given the context evidence that these were not isolated incidents.

40. The applicant was convicted on this count.

Count 5: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1976 and 31 December 1977

41. Yvette gave evidence that while walking down the hallway of the premises in 1977 she walked past the applicant’s bedroom. He was lying on the bed. He asked her to enter the room and close the door. He then got her to lie down on the bed with him. He then moved her underpants and touched her vagina and clitoris. She described how he gave her one of her aunt’s perfume bottles to play with. This is something she was not normally permitted to do. She heard heavy footsteps approaching the bedroom door at some point (which she thought was Aunt Donna). At that time the applicant pushed her away and removed the perfume bottle from her hands. She was told to hide. She curled up in a ball and blankets at the foot of the bed. When Aunt Donna entered the room and pulled the blankets back, she questioned Yvette as to what she was doing on the bed.

42. The applicant was convicted on this count.

Count 10: Indecent assault upon Victoria (s 76 Crimes Act) between 1 January 1976 and 31 December 1976

43. Victoria gave evidence that after she started school the assaults would occur in the afternoon after she came home from school. She described one occasion in the beginning of the year when the applicant was alone in the bathroom with her and he began to touch her vagina. He then placed his penis between her legs and began to rub against her vagina. She described seeing him put tissues on his penis.

43. The applicant was acquitted on this count. It is common ground at the appeal that the explanation for that was that the family did not move into the premises until mid-1976 at the earliest.

Count 11: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1976 and 31 December 1976

45. This incident was said to have occurred shortly after count 5. Yvette walked into the bathroom which was off the hallway and was followed by the applicant. He washed her vagina with soap.

46. The applicant was convicted on this count.

Count 6: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1976 and 31 December 1977

47. This incident was said to have occurred shortly after count 11. Yvette described going into the toilet and being followed by the applicant. On this occasion she described that he licked her vagina and was pressing on his own groin area. Afterwards he gave her a 20-cent coin.

48. The applicant was convicted on this count.

Count 7: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1976 and 31 December 1977

49. A few weeks after the previous count Yvette described an occasion when the applicant was lying on his bed. He gave her a bottle of perfume to play with. She was playing with the perfume under the bed while he was laying on the bed. She described that the applicant was touching her vagina with his fingers. This occurred for about five minutes. She described that the bed was shaking at this time.

50. The applicant was convicted on this count.

Count 8: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1976 and 31 December 1977

51. Yvette described how shortly after the previous incident the applicant entered the bathroom whilst she was in there. He began to lick her vagina while having his hand inside his pants.

52. The applicant was convicted on this count.

Count 8: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1976 and 31 December 1977

53. Shortly after the previous incident, Yvette found herself in the bathroom alone again. The applicant came in and locked the door. He placed a towel over the door handle and began to lick her vagina. She described how on this occasion she had a weird feeling and felt like vomiting and pushed the applicant away.

54. The applicant was convicted of this count.

Count 12: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1976 and 31 December 1977

55. Shortly after the previous incident, the applicant entered the bathroom whilst Yvette was in the bathroom. This time he placed a towel on the floor. He asked her to lie down on it. When she did, he began to lick her vagina. After he did this, he gave her a 20-cent coin.

56. The applicant was convicted of this count.

Count 13: Indecent assault upon Victoria (s 76 Crimes Act) between 1 January 1976 and 31 December 1977

57. This is one of four counts that were alleged to have occurred in the garage at the premises. Victoria described the garage as being brick with a roller door. She gave evidence of an incident when she returned home from school and ran into the backyard to start playing. The applicant yelled out for someone to help him in the garage. When she entered the garage he closed the roller door, unbuttoned his overalls and put her hand on his penis. He guided it back and forth and she saw white liquid coming from the applicant’s penis.

Evidence about the garage

58. Both complainants gave evidence that the applicant sexually assaulted them in the garage. In addition to this count there were three other counts that were alleged to have occurred in the garage.

59. There was no dispute that there was a garage built at the premises sometime after it was purchased. There were no photographs or plans or other documents to establish when it was built. There were photographs taken of the garage in evidence that were all taken after the complainants’ family ceased living with the applicant’s family. There were also photos in evidence taken of the complainants when they were still living at the premises that did not depict the garage in the position where it ultimately was built.

60. The applicant, his wife, the applicant’s brother Mark, and the complainants’ father all gave evidence as to when the garage was built. All witnesses described the garage not being built until well after the complainants moved out.

61. At the time that the complainants lived at the premises there was a shed at the back of the yard. A photograph of the shed was in evidence and dated 1981 (Exhibits A 4-6).

62. Given the photographic evidence and evidence of relevant witnesses at the trial the Crown ultimately accepted that its case to the jury was that the applicant could not be convicted on the four counts in relation to the garage unless the jury were satisfied beyond reasonable doubt that the garage was in existence at the time when they resided with the applicant. This part of the closing address is extracted below at [188].

63. The jury acquitted the applicant on count 13. It was common ground at the appeal that this was because of the evidence that the garage was not in existence at that time.

Context evidence in the garage

64. Victoria also gave context evidence that when she was seven or eight years old, she was shown a pornographic magazine in the garage. She described how the applicant opened it on a double page which depicted two females and a male. He asked Victoria to lick the part of the page where the females’ vaginas were. This was said to have taken place at the same time as the previous count.

Count 15: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1977 and 1 July 1978

65. Yvette gave evidence that there was a further incident in 1977 or 1978 when the applicant was lying on a bed in a bedroom, other than his own, when he called her into the bedroom. He rubbed his penis back and forth on her vagina. After this occurred, she continued to sit on his bed and play with the coin that he had given her. She saw him go to the door and check to make sure that no one was coming after. He then gestured to her with his hand to indicate that it was safe to leave and she ran out.

66. The applicant was convicted on this count.

Count 16: Indecent assault upon Yvette (s 76 Crimes Act) between 5 November 1976 and 1 December 1978

Count 19: Indecent assault upon Yvette (s 76 Crimes Act) between 5 November 1976 and 1 December 1978

67. These two events were described by Yvette as having taken place as part of the one incident. She described the applicant following her into the bathroom. Once they were both in the bathroom, he began to lick her vagina while he had his hands on his pants moving up and down (count 19). He also asked her to lick his penis which she did (count 16). At one stage during this incident she saw the applicant walk over to the bathroom door and look through the keyhole. He then opened the door and gestured for her to leave.

68. The applicant was convicted on both of these counts.

Count 20: Indecent assault upon Yvette (s 76 Crimes Act) between 5 November 1977 and 4 November 1979

69. This is another of the four counts said to have taken place in the garage. Yvette described how the applicant was working in the garage when he signalled for her to enter the garage. She saw that he was wearing overalls. He undid the buttons, put his hand on his groin and took her hand to put inside his overalls. He wrapped a hand around his penis and used his hand on top of hers to move it backwards and forwards. She described that incidents like this occurred regularly in the garage.

70. The jury acquitted the applicant on count 20. It was common ground at the appeal that this was because of the evidence that the garage was not in existence at that time.

Count 17: Indecent assault upon Yvette (s 76 Crimes Act) between 5 November 1976 and 1 December 1978

71. This is another count where Yvette described the applicant being in the garage. He called out to her and she came into the garage. He grabbed her hand and placed it on his penis. He then had her masturbate him before he told her that she could leave.

72. The jury acquitted the applicant on count 17. It was common ground at the appeal that this was because of the evidence that the garage was not in existence at that time.

Count 18: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1978 and 4 November 1980

73. This is another count said to have occurred in the garage. The applicant was in the garage and called Yvette to come into the garage. She remembers that she was wearing a skirt with ruffles. The applicant was wearing overalls. He opened the groin area of the overalls and indicated to her to touch his penis. He then walked her around to the back of the car where he squatted down and began to lick her vagina.

74. The jury acquitted the applicant on count 18. It was common ground at the appeal that this was because of the evidence that the garage was not in existence at that time.

Count 21: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1980 and 1 July 1980

75. Yvette described how on one occasion she was lying on the floor on the carpet of the applicant’s bedroom when he took off her underwear and began to rub his penis against her vagina.

76. The applicant was found guilty on this count.

Count 22: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1980 and 1 July 1980

77. Yvette gave evidence of another incident around the same time frame being the early part of 1980. She went into the bedroom with the applicant and he rubbed his penis up and down against her vagina.

78. The applicant was found guilty of this count.

Counts 23, 24 and 25: Incite female to act of indecency (s 76A Crimes Act). all pertaining to Victoria between 23 June 1977 and 23 June 1981

79. Victoria gave evidence that the applicant would encourage her to lick the vagina of her cousin, his daughter Olivia. These events occurred sometime between 1977 and 1981. She described how the applicant showed her a pornographic video depicting a female performing cunnilingus on another female. He told her that before she performed it on Olivia she would need to practise. Victoria recalls that she was approximately six years old and Olivia was only three years old. She remembers this because her cousin Olivia was doing the dishes in the kitchen when he asked her. She gave evidence that she did practise licking Olivia’s vagina as she was asked (count 23).

80. About a week later the applicant asked her whether she had practised and suggested she was not doing it properly. He told her to try again (count 24). Victoria ultimately told him that she did not want to do this. He again told her that she was not doing it properly and encouraged her to try again (count 25). She gave evidence that she did so.

81. The applicant was convicted on these three counts.

Count 26: Carnal knowledge of Victoria (s 67 Crimes Act) between 1 July 1980 and 1 July 1981

Count 27: Indecent assault upon Victoria (s 76 Crimes Act) between 1 July 1980 and 1 July 1981

Count 28: Indecent assault upon Victoria (s 76 Crimes Act) between 1 July 1980 and 1 July 1981

82. Victoria described that these offences occurred as part of the one incident after she had moved out of the premises but had returned for a sleepover with her cousin. She was alone in the bathroom with the applicant when he pulled her pants down and was standing behind her. He began to rub her vagina (count 27). He then put his penis between her thighs (count 28). She could feel it moving back and forth until she felt his penis inside her (count 26). This caused her pain and she told him he was hurting her. He told her to wait. She described that his penis was inside her for less than a minute.

83. The applicant was convicted on all three counts.

Count 29: Indecent assault upon Yvette (s 76 Crimes Act) between 1 January 1981 and 13 July 1981

84. Yvette gave evidence that this offence occurred at the premises after they had moved out. On one occasion when she visited the applicant and his family, she wanted to take the other children to the park. She asked the applicant whether she could do so. He gestured with his head towards a bedroom. Yvette understood this as a signal for her to attend the bedroom with him. Whilst they were in the bedroom, he inserted his finger into her vagina.

85. The applicant was convicted on this count.

Count 30: Sexual assault upon Victoria (s 61D(1) Crimes Act) between 1 June 1986 and 31 December 1986

86. Victoria was 15 years old and in Year 10 at school at the time of this alleged offence. She had a boyfriend, George, who was one of the complaint witnesses at trial. On the weekends she would sometimes sleep at the premises to be with her cousin, Olivia. On one occasion she and Olivia planned to go out for the evening. The applicant was in the bathroom with Victoria at which time he inserted his penis into her vagina two or three times. He also reached behind her and rubbed her vagina with his hand prior to inserting his penis into her vagina. He thrust his penis a number of times, he did not ejaculate.

87. Victoria described this behaviour continuing over most weekends whenever there was a sleepover at the premises.

88. The applicant was convicted on this count.

Count 31: Sexual assault without consent upon Victoria (s 61D(1) Crimes Act) between 1 January 1988 and 31 December 1988

89. Victoria gave evidence that when she was in Year 12, she had another sleepover at the applicant’s house. She would sleep in Olivia’s room when she did so. She alleged that during the night she was in the bathroom alone with the applicant and he inserted his penis into her vagina.

90. This count was the subject of a verdict by direction because by this stage Victoria was 17 and she did not give any evidence of lack of consent to the act.

Count 32: Sexual assault without consent upon Victoria (s 61D(1) Crimes Act) between 17 February 1989 and 31 March 1989

91. Victoria gave evidence that this incident occurred on the weekend of the Mardi Gras parade in March 1989. She was 17 years old at the time. She went to Olivia’s house at the premises. They both had boyfriends who were friends and it was intended they would go to Mardi Gras together. A similar event occurred on this occasion. She described being in the bathroom, being followed in by the applicant, and the applicant having penile/vaginal intercourse with her.

92. This count was the subject of a verdict by direction because by this stage Victoria was 17 and she did not give any evidence of lack of consent to the act.

Count 33: Sexual assault without consent upon Victoria (s 61E(1) Crimes Act) between 17 April 1989 and 1 July 1989

93. Victoria gave evidence that she was indecently assaulted by the applicant a couple of months after the Mardi Gras incident. She was staying at the premises to spend time with her cousin Olivia. She had been fighting with her boyfriend George. She was in the bathroom crying. The applicant entered the bathroom and put his hands down her pants. He then grabbed her hand to stimulate himself. Victoria refused to hold his penis and let her hand go limp. She told him that she did not want to do it.

94. The applicant was convicted on this count.

Count 34: Sexual assault without consent upon Victoria (s 61E(1) Crimes Act) between 17 April 1989 and 1 July 1989

95. Victoria did not give any evidence in relation to this count and the trial judge directed the jury to acquit the applicant on this count.

Evidence about Uncle Frank

96. Both complainants gave evidence that Uncle Frank came to live with them in the early 1980s after they had left the premises. Victoria gave evidence that Uncle Frank made her perform fellatio on him when she was about nine years old. On this occasion she felt she was unable to tell her parents due to her family’s expectations of her. She gave evidence that Frank made her perform fellatio several more times and that he would hit her if she did not. Victoria said that during the time the Frank lived with them he would grab her vagina and breasts and pinch her in the lounge room.

97. Victoria said that when she was about 12 years old, she first saw Uncle Frank touch her sister in the lounge room. Victoria then asked Yvette whether Uncle Frank was hurting her. Victoria said that Yvette looked down which she understood to mean “yes”. The sisters had another conversation about this around one week later, in which Yvette said that Uncle Frank had been grabbing her as well.

98. A couple of weeks later, Victoria initiated another conversation with Yvette and said she was sick of it and wanted to tell their mother. She told Yvette “let’s try and get him busted”. The sisters approached their mother and told her that Frank had been grabbing them. Victoria said that her mother wanted to see it for herself.

99. The sisters then sat in the lounge room while their mother observed from behind the door of the next room, through an old-fashioned key peephole. Uncle Frank entered the lounge room and pinched both of them at the same time.

100. When their mother saw what happened she became angry and told Uncle Frank to leave the house.

101. The defence at trial relied heavily upon the fact that although the complainants were able to tell their mother about Uncle Frank, they did not say anything to their mother about the applicant at that time.

102. Victoria gave evidence that when she was about 16, she told Aunt Donna about what the applicant was doing to her. Aunt Donna did not believe her. The applicant relied upon the fact that Victoria continued to visit the premises after this as being a matter adverse to her credibility.

Evidence of a suicide attempt by Victoria

103. In the late 1980s Victoria was admitted into Canterbury Hospital. She took an overdose of Panadol. In her evidence she said this was in 1986 and was due to abuse she suffered at the hands of the applicant. The hospital records were in evidence. They showed that the incident occurred in 1989 and the issue was recorded as “family trouble”.

104. This was another matter relied upon by the applicant as a matter adverse to Victoria’s credibility.

Evidence of complainants’ mother

105. The complainants’ mother gave evidence as to the living and working arrangements, her observations of Uncle Frank and of the complaint to her.

106. Her evidence was that when they first moved into the premises, she worked full time, 8am to 4pm. Everyone used to be at home when she came back from work. Her husband (the complainants’ father) was also working but not all the time. She agreed that as a result of a car accident in the mid-1970s he was not able to work but disagreed that it was for two and a half years, stating that it was maybe one and a half years.

107. Her recollection was that the applicant may have worked with her husband for a little while and that they later opened a garage and worked together. She could not recall when that happened, but said that once they opened the garage, they used to go out around 8am and come back in the evening. She accepted that it may be that they had a garage at the time of moving to the premises. Her evidence was that the applicant did not work much in Australia, about two years, because he started to fix up cars for his friends at the garage at the house. When she was living at the premises there would be times when the applicant would already be there when she came back from work, and that most of the time he would be working in the garage in the house and fixing up cars for friends.

108. She agreed that her husband and the applicant worked together in a few jobs: at a garage in partnership for about one year and in a factory in Alexandria (although not for very long). She also recalled that the applicant once worked as a mechanic with someone else at a garage.

109. As for Aunt Donna, the complainants’ mother stated that she did not work at the time they moved into that property but that she then worked full time at the same company as her for three or four years, doing the same hours (8am to 4pm), and then at a bakery shop at Belmore. The complainants’ mother could not recall exactly when Aunt Donna worked.

105. The complainants’ mother gave evidence that Uncle Frank came and lived with them for several days. One night, after she heard Yvette scream, she found him at the door of the girls’ room. Following a conversation with Yvette in which she told her that the applicant made her “grab his sexual organ” the mother asked him to leave the following morning without telling her husband. She further stated that, after they moved house again, Uncle Frank used to come with his children every Saturday. On one occasion she observed him playing with himself in front of the girls. On another occasion she heard him say “[Victoria] my penis in your cunt”. She did not, on either occasion, say anything to Uncle Frank directly or inform her husband.

106. The complainants’ mother stated that she learnt about Victoria’s complaint once she went to America to be with her, after Victoria became ill. She was told by Victoria that the applicant tortured her and hurt her when she was about 4 years old and lived at the premises. Victoria could not tell her the details. Every time she asked her for details Victoria could not tell her because she was on the machine helping her breathe. She stated that when she called her husband to tell him that “his brothers inflicted pain [on] or tortured” on Victoria she only meant the applicant and not Uncle Frank. She also stated that Victoria told her that she had complained to Aunt Donna a long time ago, but that Aunt Donna did not believe her.

Evidence of the complainants’ father

112. The complainants’ father gave evidence about the living and working arrangements whilst the two families were living together at the premises.

113. His evidence was that he worked at a factory when they first moved into the premises and at a polishing factory for a short time in 1976. He was unable to recall if the applicant worked anywhere in 1976. The father’s evidence was that he and the applicant worked at a bumper bar workshop but later decided to set up a garage business for themselves at the premises. He thought that the applicant was working during the time when they were living together at the premises.

114. The father stated that he was involved in a car accident while living at the premises. At the time he was working at a polishing factory and was off work for about a year and a half as a result of the accident. During that time the applicant worked at a petrol station, but he could not recall when and for how long. The father stated that once he started working at a factory again, he used to work the night shift from 7pm until 7am. He could not recall Aunt Donna working when they first moved into the premises but stated that his wife (the complainants’ mother) was working at that time.

115. He stated that the family moved out of the premises between 1979 and 1980. By that time, they had lived there for about three years. His family went to Syria while they were still living at the premises and he joined the family eight to ten days later, once he had moved out of the premises.

116. He stated that his wife went to America in 2011 or 2012 because Victoria was sick and that he became aware of the issue concerning his brothers when she returned to Australia.

Complaint witnesses

117. The events were alleged to have occurred between 1975 and 1989. The complainants started confiding in people about the sexual abuse from as early as 1984. Typically, they told their close friends, boyfriends and husbands and one Aunt with whom they were close. Whenever they confided about it to anyone each of them insisted that it remain private. Ten witnesses were called at the trial about what they had been told by Yvette and Victoria over the years.

118. Given the probative value of this evidence, and the fact that the admission of it forms the substance of ground 2(b), I propose to set this evidence out in some detail.

Kathleen Hormazabal

119. Ms Hormazabal is a friend of Victoria’s. She gave evidence that Victoria complained to her in approximately 1984 and 1985 and again in 1992-1993 (before November 1994). Ms Hormazabal used to go out with George Rivera (another Crown witness). After they broke up, she remained friends with him and later he went out with Victoria. She has been close friends with Victoria since they first met. About six months after they met each other, when Victoria was about 14 years of age, Victoria told Ms Hormazabal that her uncles “hurt her”.

120. Victoria complained to her that it was two uncles, one of whom was “redneck” (Uncle Frank) and the other was the applicant. Ms Hormazabal knew the applicant at that time. Victoria said that the applicant was “sick”. She told Ms Hormazabal to be very careful of the applicant. She then made Ms Hormazabal promise never to tell a living soul. She also said that he had not only done things to her but also to her sister Yvette. The evidence of Ms Hormazabal on this subject was as follows:

“Q. Do you recall what words she used in relation to talking about [the applicant]?

A. She told me that ‘he's sick’ like that and to be really careful of him.

Q. When she said that did you say anything to her?

A. Yep, I just told her that I'd never tell anyone and I was really sorry and I was a bit freaked out to be honest with you, and she sort of got panicky, didn't want me to tell a living soul, and that was the promise I swore and the promise I kept.

Q. You made her a promise, why did you do that?

A. Because I promised her I would never tell anyone. It was her secret. It was something she hid from all her life.

Q. Is that something you discussed with her?

A. It was in the sense that I knew what it was, so if she was going there she would call me and I would go there.

Q. Sorry, in relation to you keeping her secret was that something that was discussed?

A. Yes, it was.

Q. What was said?

A. She asked me, she begged me, to never tell a living soul and because she'd also mentioned her sister in that convo she begged me not to tell anyone and I promised I wouldn't.

Q. You mentioned a sister there, how did that come about?

A. Well, she said it wasn't just her that he was sick with, it was [Yvette] as well.

Q. Who was she referring to when she said ‘he’?

A. That's [the applicant].”

121. About four months after Ms Hormazabal first spoke to Victoria about this she also spoke to Yvette and found out what happened to Yvette. She explained:

“Q. What did you say to [Yvette]?

A. I just told [Yvette], because I felt bad that I knew something so deep about [Yvette] and [Yvette] not knowing.

Q. Listen to my question please, do you recall what words you said to [Yvette]?

A. Yep. I just told [Yvette] I knew what had happened to her by her uncles.

Q. Did she say anything?

A. She hugged me. She was a bit shocked that I knew. I got emotional.

Q. Do you recall if she said anything?

A. I just ‑ I just remember clearly when I told [Yvette] she got shocked and really nervous, biting her nails. She didn't say much. In fact she farted afterwards and had a bit of a giggle, she turned the convo right around, but I promised not to tell anyone. She could trust me.”

122. She spoke to Yvette about the topic again years later. They did not really talk about it. Ms Hormazabal said that Yvette knew that she knew and that’s where it was left.

123. She remembered having another conversation with Victoria before her marriage on 5 November 1994. She questioned Victoria about whether she was sexually assaulted from the age of two. Victoria clarified that “he didn’t fuck me at two” and instead indicated with her hand that she was “this high”. During this conversation Victoria became distraught and Ms Hormazabal apologised for bringing the topic up:

“Q. When [Victoria] said these things did you do anything?

A. I actually stopped the conversation after we ‑ and I apologised for bringing it up. She ‑ you could see the distraught [sic] in her face with the conversation and I would never do anything to hurt [Victoria]. I always protected [Victoria].

Q. Do you recall what words you said to her?

A. I just remember saying, ‘I'm really sorry for bringing it up. Let it go. It's all okay.’ And I just hugged her, as I always did. She also had her hands on my hands, like, it was just ‑ God bless her.”

Aunt Ibrahim

124. Aunt Ibrahim is the older sister of the complainants’ mother and thus the complainants’ maternal aunt. She gave evidence of some early complaint in 1987 to 1990 and then further details being provided post-2011. Her evidence can be summarised as follows.

125. Aunt Ibrahim was still residing in Syria when the complainants and their mother came to visit in 1981 and then again in 1990. She migrated to Australia for a year in 1985 and then returned to Syria after six months. She had a good relationship with the complainants.

126. When she came back to Australia for a second time in 1986, she stayed with the complainants’ family. The children were attending school at this time. She observed that Yvette and Victoria did not like to be present with the applicant and would go and sit somewhere else. She did not ask them why. As for the specific terms of the complaint about the applicant, in 1987 both complainants said to her words to the effect of “he used to hurt us or disturb us” or “he used to touch us here and there”. Victoria spoke more than Yvette.

127. She also observed that the complainants were uncomfortable around Uncle Frank and they would not stay if he was present. They told her “we don’t want to see him”. She noticed this behaviour in the 1987 trip which was her third trip to Australia.

128. Aunt Ibrahim gave the following evidence as to why she did not tell anyone about this at the time (her evidence was given through an interpreter):

“Q. When you were told these things by the girls in 1987 did you speak with anyone else about what they had told you?

A. INTERPRETER: No.

Q. Is there any reason why you did not say anything to someone else?

A. INTERPRETER: First of all, it's fear. Secondly, they told me not to speak out, ‘not to say anything to my father or to my mother’.

A. INTERPRETER: I was scared that her parents would know about this.

A. INTERPRETER: And, secondly, they requested that I don't speak out.

Q. Did any of the girls give you a reason why you should not say anything?

A. INTERPRETER: They were scared that their father would have a fight with his brothers and each would kill, they would kill each other if they would know.

Q. Did they talk about why they were scared about that?

A. INTERPRETER: That's the reason.

Q. And who told you that?

A. WITNESS: [Victoria].

Q. At some later time did you talk to [Yvette] about this type of thing again?

A. INTERPRETER: [Yvette] once was at the park and she returned home and she was crying and I said to her, ‘Why are you crying?’, and she said, ‘Didn't [Yvette] tell you about it?’ I responded, I responded, ‘She did tell me’, and then she replied to me by saying, ‘That's it. Don't speak to me about it.’

Q. Are you talking about a conversation with [Yvette]?

A. INTERPRETER: Yes.

Q. Did you say, ‘Didn't [Yvette] tell you about it?’ Is that what you said?

A. INTERPRETER: She told me, ‘[Victoria], didn't she tell you about it?’

Q. And did you respond?

A. WITNESS: Yes.

Q. What did you say?

A. INTERPRETER: Nothing, because she was, you know, very upset and I didn't like to talk to her about it.”

129. Aunt Ibrahim was a childhood friend of the applicant’s wife Aunt Donna and used to visit her after she emigrated to Australia. She recalls that on one of these visits the applicant would ask why the complainants did not visit him. She thought this conversation took place in 1996 when Victoria was in America.

130. In 2013, she became aware of more specific complaints. She was aware that Victoria had lost her virginity and that the applicant used to inflict pain on Victoria. She told her that he used to get her into the bathroom, put her head in water and “make love to her” from behind and sometimes on a bed.

131. In cross-examination Aunt Ibrahim accepted that she never tried to stop the complainants going to the applicant’s home and was aware that they went there for sleepovers. She also accepted that she had never told her sister to stop the children going to the applicant’s home. She explained that this was because her sister did not know about it.

Wilma Kaddissi-Sheehan

132. Ms Kaddissi is a long-time friend of Victoria. The two women were close as teenagers and shared a house together in Balmain. Victoria complained to her in about 1993-1994. She recalls a discussion taking place in a car and another taking place on a couch in their Balmain home. Only she and Victoria were present for the conversation. Her evidence was as follows:

“Q. What did [Victoria] say to you during these conversations?

A. She had told me that growing up her life and her sister's lives were messed up, that they had been raped multiple times by two of their uncles and that their uncles had threatened them if they ever said anything to anyone.

Q. You have used the word ‘they’. First of all, if I take you to [Victoria], do you recall specifically what she said happened to her?

A. She said she was raped multiple times.

Q. Did she say by whom?

A. Two of her uncles. That's all that was said.

Q. Did she tell you their names?

A. I don't recall.

Q. In relation to her sister, do you recall what she said to you in relation to her sister?

A. That the same thing had happened to her sister multiple times.

Q. Did she tell you when these things happened to her?

A. She said when they were younger.

Q. Did she say when these things happened to her sister?

A. She just said when they were younger.

Q. Did she tell you of anything that her uncles may have said to her about these things?

A. Just that if they told anyone, she told anyone that she would be in danger or in a lot of trouble.

Q. After [Victoria] told you these things, or, first of all, after [Victoria] told you these things did you speak to anybody else about it?

A. No.

Q. Is there any reason why you didn't?

A. She asked me not to.”

133. In cross-examination she denied that she had been told what to say by Victoria and accepted that they were still friends.

Victoria’s husband David

134. David is Victoria’s husband. They first met in the 1990s. She complained to him shortly thereafter, within the first couple of weeks of meeting each other and certainly within the first six weeks. There was continual complaint by Victoria to him from 1996 until 2013 but the full details did not emerge until 2013.

135. The first thing Victoria said to him after they met was “I was sexually abused by my uncles”. She named the uncles as being the applicant and Uncle Frank. It was not a brief conversation. She provided specific detail, but he cannot remember it all. She said she was a child and it had occurred for many years. She told him that it came to a point where she ran away from home. She told him in the first conversation that started when she was elementary school age. She was sitting on his lap and he would touch her and put his hand up her skirt.

136. She also told him that Uncle Frank took them to Kings Cross once and watched pornographic videos. He recalled that she spoke about the applicant and Uncle Frank in different ways. He understood that the family still had a current relationship with the applicant which they did not have with Uncle Frank. She repeatedly raised the topic over the years. He recalls that it became clear to him over the years that she had lost her virginity to one of her uncles. She also said that she was physically disciplined by Aunt Donna.

137. He met the applicant at family events. He never met Uncle Frank. Although he initially spoke to the applicant at these events, he reached a stage when he could not do it any longer. He explained it this way in his evidence:

“A. There was a time where ‑ there was a point in time at which I did not want to associate with [the applicant] or [Aunt Donna].

Q. Why is that?

A. Because of the abuse that I understood had taken place. However, it was not ‑ the family had not been made aware of it. It had not been made public within her family at that time and I simply told [Victoria] that ‑ this was her secret to keep and not mine to disclose or make an issue of. I simply could not continue to associate and socialise with them, however, so my approach was simply that I am going to avoid them and I, sort of, set off on that path at that time and my plan as to leave if they were going to be there and not go if they were going to be there. How that got to be presented to them, was not really planned or thought out.

Q. You talked about an approach and avoiding them. Are you talking about the individuals, [the applicant] and [Aunt Donna]?

A. [The applicant].

Q. This approach, is that something you have always had?

A. No, early on, in my relationship with [Victoria], as I said, I had been at their home and the family functions that I can think of mostly would consistent of them coming over to [Victoria’s] parents' home when we would be here visiting them, possibly having dinner with them.

Q. Do you recall when it was that your approach changed or you took this approach that you have just talked about?

A. I don't recall exactly when it was now, but I do know I had thought it throughout with regard to my statement. I would say it would be probably 2003‑ish, something like that.

Q. Is there any particular reason why you had this change in approach, or took this approach in around 2003?

A. I don't know. You know, this was something that [Victoria] and I lived with on a very regular basis, what had happened to her, and the

behaviour and trauma and what I believed were the symptoms of it to be, and it grew on me and I simply could not live that, as though nothing was wrong. I did not want to associate with them.”

138. David came to Australia with Victoria again in 2012. After he returned home to the United States, Victoria telephoned him in some distress and told him Uncle Frank had shown up unexpectedly and she found that difficult. After she returned to Florida, she had a nervous breakdown and became very unwell. She saw several doctors. He contacted her mother to come over and look after her. At this time Victoria provided all the details of the abuse and he then understood that what the applicant had done was more serious than what Uncle Frank had done. Victoria said that she had explained to him in this way so that she could still see the applicant and his family as they were very much a part of her family’s life, whereas Uncle Frank was not.

George Rivera

139. Mr Rivera first met Victoria when she was in Year 10 and they became close. He could not visit Victoria’s parents’ house because they were strict and did not want him dating her. Around mid-1987 he moved in with Victoria after she ran away from home. She was about 17 or 18 years of age at the stage and he was about 21-22 years. They had a good relationship. When they were living together, she told him that she had been “molested” by her uncles. His evidence was as follows:

“Q. What did she tell you about these uncles?

A. When she used to be in the room apparently, this is what she told me, apparently one of the uncles used to stay there as well in the room and she said to me she used to get molested by him.

Q. Do you recall what words she used to describe these things?

A. Not at this time but she said she was scared because being molested.  She said her sister was molested as well.  She was in the same room as well.  And she said things like every, not every day, but everything when she was uptight or not feeling well and I used to say to her what's wrong and this and that and that's when she used to tell me things about that time.

Q. So this topic arose‑‑

A. But she was very closed in.  She didn't want to say everything but gradually she just started saying things slowly to me.

Q. So there are a number of conversations about this topic is that right?

A. That's correct yep.”

140. He later stated:

“Q.  …… As these conversations progressed, sorry as you had subsequent conversations on this topic do you recall aside from indicating to you that she'd been molested do you recall [Victoria] giving you any other detail?

A. Only that she was molested.  But I sort of never, like, I never pushed her to say anything to me.  I just, I always let her say whatever she felt like saying.  I didn't, like, push her like, saying, ‘Tell me this, tell me that’, kind of thing.  It's just what she just told me.”

Prokopis Archie Hambessis

141. Mr Hambessis met Yvette in 1986 when she was in Year 11. The following year she complained to him that her Uncle Frank was an “abhorrent individual”. She spoke of inappropriate touching in 1988 (Year 12) and 1989 but mainly about Uncle Frank.

142. In about 1990, Yvette complained to her about the applicant in these terms:

“Q. …... Do you recall when [Yvette] first raised [the applicant] in relation to these things?

A. In my mind, the way I look back, it probably would have been may be two years after I knew about [Uncle Frank] and, basically, the way I remember it is when I found out about [the applicant] I took it as if it was not as bad as [Uncle Frank]. She said something like to effect, ‘I need to tell you something. It was [the applicant] as well,’ and it was hard for her because I think I had known [the applicant] at that point.

Q. First of all, what did she say? [The applicant], anything else from [the applicant]?

A. Yeah. I go, what do you mean. It started off, you know if you were to, I don't know if you can interpret any of that sort of conversation as benign, but it was, relatively speaking, to what [Uncle Frank] did. But over time, over the next, say, two or three years, up until the point where we got married more and more detail would come out to the point where I realised it was just as bad.

Q. How did you come to that; what did she say to you?

A. Well, is it started off with, it was always little bits at a time, because I knew, she knew that I knew and she didn't want me to react. All that sort of stuff. She wanted, my perception how I received that information was that she wanted to give me lit bits at a time so I didn't overreact. The first one was; '[the applicant]'s no angle [sic] either', to '[the applicant] did it as well', to, she would say things to the effect of ‘we were home alone and we were in the room and he'd come into the room with us and stuff.’

Q. When you say ‘he would’?

A. [The applicant], sorry. So as the years went on I started is to get a little bit more information. It was hard for me because I actually liked [the applicant] at the time. He's always respected me. It was a little bit hard. I think from memory he was, back then, open to the idea that [Yvette] and I could have a relationship. I don't know the exact details but somehow there was a kinship between us, kind of, you know, got on with [the applicant], he was an okay guy. And to hear that, that was really hard to accept. It was really hard to ‑it was confusing, you know. And because I'd spent, from memory now, I think about it I spent some time in that house and I kind of, yeah, it was hard, yeah.

Q. Come back to the conversation between you and [Yvette]. You had a certain perception. I was asking what she said. Did she provide you with any detail about events between herself and [the applicant]?

A. I think, eventually there was, but I kind of, from my perspective I didn't want to bring something up that I knew she was really uncomfortable with.

Q. How do you know he was uncomfortable about it?

A. Okay. I did ask her exactly what happened, and she would say, I think I didn't even want to know the detail because‑‑

Q. ‑‑at times you have asked her for more detail; is that right?

A. I did. I did ask her. I said, well, at one point I did ask, this was years later. I said ‘was there any penetration’ and she said no and I thought, okay. Because up until now, I don't know the detail as to what happened. I know she did say one thing. The one thing that she did say, and I do remember verbatim she said ‘he made us touch his thing.’

Q. Who was that she was talking about?

A. That was [the applicant].

Q. When you asked her about penetration, who were you asking about there?

A. Both. Both [Uncle Frank] and [the applicant] sorry.

Q. Did [Yvette] give you a timeframe for these events with either [the applicant] or [Uncle Frank]?

A. Yes. I said ‘when did is this happen? How old were you?’ I said, ‘how young were you?’ I don't know whether she was referring to [Victoria] or herself, but she said the age is between six and eight or 10. I can't recall the exact number.

Q. Not sure whether she was talking about [Victoria]. Did she tell you some things about [Victoria], did she?

A. Yeah. She did, yes.

Q. Along the lines of [Victoria] being touched as well, something like that?

A. Yeah. I think the knowledge of [Victoria] came very early in the conversation around that topic. It wasn't as though [Yvette] said ‘I was abused’, and didn't mention [Victoria]. I think it would have been the moment she said ‘something happened to me’ and, you know, ‘they would touch us and all this sort of stuff’, but she mentioned pretty much from the beginning, so.

Q. You were married in 1994 to [Yvette]; is that right?

A. No. We were meant to marry that year, but [Victoria] was in a car accident. We had to postpone the wedding until March 1995.”

143. Mr Hambessis knew the applicant and liked him before Yvette disclosed the abuse to him. He found it hard to see the applicant after the disclosure by Yvette. He described it this way:

“Q. I think you said something about your contradictory feelings about seeing [the applicant]; was that something that you discussed with [Yvette] at the time?

A. Yeah. She knew I was, you know, part of your mind says what do you do about that? In the end, you cannot think what goes around comes around. At the same time, I didn't think, I didn't know the extent of what of what he did to her. Over the years I got more information and I just found out it was more than just acting lewd in front of a child, or inappropriate touching or something like that. You get a bit more information over the years. It's like, in your mind at the time you're just like, well, he's a sleazy uncle exposing himself. That is the information that had been given up until that time, but after we got married and over the years I found out, trips overseas, we'd talk more about it. The detail started coming out.

Q. I will come to that. You got married to [Yvette] on 5 March 1995; that's right?

A. That's right.

Q. You married at the at Greek Orthodox Church in Redfern?

A. Yep.

Q. [The applicant] and [Uncle Frank], were they both there?

A. They were.

Q. Is that right?

A. Yes, that's right.

Q. Their attendance at the wedding, was that something you discussed with [Yvette]?

A. Yeah, we did. One of the things we just had to, a bitter pill to swallow.

Q. Did you say anything to [Yvette] about their attendance?

A. Yeah. It was more a matter of why the hell do these guys have to be at this wedding? This is a special day for us and somehow we just have, for the sake of keeping the peace.

Q. You say ‘sake of keeping the peace’, what do you mean by that?

A. Well, it's the idea of, if you object or have an issue with it, then people start asking questions. For me, it's not my place to start that war. I am the sort of person, I'm absolute. You're either working with me or I have to obliterate you. It's hard for someone like me. I don't go in‑between and bark at people. I never argue with people.

Q. Did [Yvette] want them to attend?

A. None of us did, but we had to. It is more an issue of, that you're going to open up a can of worms if you don't invite them. It is obvious we had to, yeah.”

CH (“Connie”)

144. Connie is the daughter of Uncle Frank and the first cousin of the complainants.

145. Connie recalled an incident that occurred when she was about 12 years old. She remembers her father saying something “horrible” to Victoria. Victoria’s mother then asked her who the comment was directed at and she said that it was directed towards Victoria. She recalls that the complainants’ mother became furious.

146. Connie recalled an occasion when Yvette told her about Victoria running into her father (Uncle Frank) at their parents’ shop. After this conversation she spoke to Victoria about it. Victoria told that she had seen Uncle Frank be “beat up” and something triggered her off and she had had a nervous breakdown after returning to the United States. This conversation probably occurred in 2012 or 2013. It was at this stage that Victoria told her about the sexual abuse from the applicant. She told her that the applicant was the main abuser. She also talked about how it would take place while Aunt Donna was watching her TV “soapies”. Victoria also told Connie that the applicant had taken her virginity.

George Dasios

147. Mr Dasios dated Yvette between 2005 and 2006 (after her divorce from Mr Hambessis and before her second marriage). Yvette told Mr Dasios that she had been abused as a child.

148. Mr Dasios explained that their relationship changed after the first 3 to 6 months because of an event that occurred at her parents’ house. He came up behind her and touched her on the shoulder and she screamed and said, “don’t ever do that again”. He described the reaction as unusual. She did not immediately explain her response but a strain on the relationship developed. He constantly asked her what was wrong and she finally told him in 2005 that she had been molested by both the applicant and Uncle Frank when she was a child. They spoke about this three times. Yvette told him she was between 5 and 12 years of age when the abuse occurred and that it happened at her parents’ home. He explained it this way in his evidence:

“Q. You indicated this conversation happened on other occasions?

A. It did.

Q. I think you might have used the number three, is that right?

A. That's right.

Q. Is that three in total or three after this one?

A. Three in total.

Q. On these subsequent occasions, are you able to tell the jury when these subsequent occasions of discussions occurred?

A. It would have been probably within a month.

Q. On the later occasions, how was the topic raised?

A. She wasn't ‑ even after speaking to her, our relationship had improved but it wasn't 100%, so I would raise it again but she was ‑ whenever it was raised she was crying, in tears, and you could tell I was taking her back to something like that. It just wasn't right. You could tell she wasn't well. And pretty much the same, she wouldn't go in to detail and she was just telling me she was touched and that, you know, she was molested and that's about it. Didn't push her much further than that.”

SD (“Simon”)

149. Simon is the current husband of Yvette. They met around Mother’s Day in 2009. A few months after they met Yvette spoke to him about what had happened to her when she was a child. He recalls that they were in the car and she became quiet. He then asked her what was wrong. His evidence continued as follows:

“A. She started speaking, it was just a lot of information, and then she went quiet, and I tried to talk to her and just nothing.

Q. You spoke very quickly a moment ago. I think you said something, she said something about [Uncle Frank] and [the applicant]?

A. She did, yes.

Q. I think I heard the word ‘paedophiles’?

A. Yes.

Q. You spoke very quickly, I didn't get it all. What did she say about that?

A. She said that her and [Victoria] when they were young they lived together at different locations and that both [the applicant] and [Uncle Frank] were paedophiles.

Q. Did she tell you anything about herself?

A. Yes, she did.

Q. What did she say?

A. She said there was an occasion that she had ‑ that either [Uncle Frank] or [the applicant], I can't remember which one it was, had ejaculated on her when they were young, when she was young.

Q. Did you ask her anything about this?

A. I did.

Q. What did you say?

A. I think at first I was in shock I didn't know what to say and then I tried to ask and then she went quiet about it. I can't remember what else. That she was sitting on a brick fence or something.

Q. This conversation you are talking about, did that happen in the car?

A. No, some of it happened in the car, yes.

Q. What was said to you in the car?

A. In the car, that both [the applicant] and [Uncle Frank], that they lived different locations with the families and that her uncles, both [the applicant] and [Uncle Frank], were paedophiles.

Q. Did she tell you why she called them paedophiles?

A. I think she said that they molested them.

Q. Molested?

A. [Yvette] and [Victoria].”

150. Simon explained that after hearing this he did not want to be around the applicant. He discussed this with his wife. He observed Yvette speaking to the applicant and hugging and kissing him. He would shake hands with the applicant at these functions. He explained this as follows:

“Q. Did you ever discuss that with [Yvette]?

A. I did.

Q. What did you say?

A. I wondered why she would do this and her response would be to keep the relationship within the family, especially with [Olivia] and [Richard] and [Ethan], which is [Olivia]'s brother and sister, and the children.

Q. On these family gatherings did you speak to [the applicant] on these occasions?

A. Yes.

Q. Did you ever come into physical contact with him?

A. Yes.

Q. Did you ever shake his hand or anything like that upon greeting?

A. I did.

Q. Is that something you ever discussed with [Yvette]?

A. Yes.

Q. What did you say about that?

A. That I didn't want to shake this man's hand, I didn't want to be around him.

Q. Did [Yvette] respond when you said that?

A. She did.

Q. What did she say?

A. She wanted, again, to keep the relationship with the family.

Q. Apart from greeting [the applicant] and shaking his hand at these gatherings, did you have any other contact with him?

A. No, not often.”

151. Simon was present at an occasion when Uncle Frank unexpectedly visited when Yvette was in Australia from America. He described the change in Victoria’s personality as dramatic and that his wife was moving “around 1 million miles an hour” and “couldn’t do anything that was simple”.

Other complaint evidence

152. Victoria gave evidence that she complained to her brother Peter when she was sixteen or seventeen years old. The complaint was in terms such as “I have been touched”. Her brother was not called as a witness at the trial.

153. She also complained to her cousin Richard in around 1990. She told Richard that his dad had been “touching” her. Her evidence was that Richard was upset and crying and swore. She complained to him again in around 2000 in response to a question from him as to why she did not visit his parents. She told him it was because his father “touches” her. Richard became upset and cried and visited her three days in a row after that.

Evidence of Dr Pulman

154. Dr Pulman gave expert evidence on the dynamics of child sexual abuse.

155. In relation to the reasons why a child may not “cry out or tell a perpetrator to stop”, Ms Pulman said:

“Children are often too young to understand what is happening… perpetrators… will engage in a process that we call grooming… They may have quite a close relationship with a child and they will use a process of affection; the child gets to feel quite important; so it can be a special relationship. They might have a special time together. A perpetrator might buy gifts or tell them they are special. They might cuddle them, play games, tickle them... all sorts of behaviour that we call grooming.”

156. Dr Pulman said that the goal of the grooming process is to “desensitise the child to the process which will eventually become a sexual contact”. Dr Pulman said that because of the grooming process, many children do not understand at the time that the sexual contact is abuse, and that younger children are more likely to be unaware of this.

157. In relation to reasons why a child may delay reporting, Dr Pulman gave the following evidence:

“As a general rule the research will indicate that children delay disclosure… it can be 20, 25 years before they tell anyone. There can be a number of reasons for the delay. One of them can be that emotional attachment, or dependence, that they might have on that person, who happens maybe to be a relative… They don’t want to hurt that person or upset the family.”

158. Dr Pulman said that the research is unable to say whether or not certain types of disclosure patterns are either consistent with child sexual abuse or fabrication. Dr Pulman also said that fear, shame and embarrassment may inhibit disclosure, as well as cultural attitudes such as “wanting to be seen as respectful for the family values”.

159. In cross-examination, Dr Pulman said that she had never met or spoken to any of the complainants or their family and was unable to comment on whether or not the complainants were telling the truth.

MH (“Mark”)

160. Mark is the brother of the applicant, Uncle Frank and the complainants’ father. He arrived in Australia with Uncle Frank and his family in 1972. He lived in the premises for a short time in 1977. At that time the applicant was working in a factory. He worked at a garage that was five minutes’ walk away. He could not remember whether Aunt Donna was working at that time, but the complainants’ mother was.

161. He recalled that there was a fibro shed at the property. It was about one and a half metres wide and two metres long he did not know whether a car could fit in it. He was shown photographs of the garage and the shed (Exhibits A1, A5-7). He stated that the garage was not there when he lived at the premises and he moved out in 1982. He agreed that the garage could have been built in 1985 or 1986 and that the applicant had knocked down the shed to build the garage.

Detective Senior Constable Hallim

162. DSC Hallim gave evidence that on 23 December 2013 Yvette and Victoria attended Campsie Police Station, with their husbands, seeking advice on an allegation concerning sexual behaviour by the applicant. He said that he spoke to Yvette and Victoria together (but without their husbands) in the presence of Constable Watson. DSC Hallim asked questions and Constable Watson took notes. Yvette and Victoria did not make a statement on that occasion. He confirmed that at the end of the interview Yvette and Victoria said they wanted to consider whether or not to ask police to investigate. He recalled that a week later, on 30 December 2013, Victoria informed him that she and her sister did not wish to proceed. In cross-examination, he agreed that Yvette and Victoria spoke about the general nature of the allegations and the location at which the offences were said to have occurred.

Detective Senior Constable Lauren Chalmers

163. DSC Chalmers was the officer in charge of the matter (OIC), although she took carriage of the matter after it commenced. She confirmed that she met Yvette and Victoria on 26 May 2014, and that she took a statement from Yvette while another officer took a statement from Victoria. Yvette’s statement was commenced on 27 May 2014 and concluded on 13 August 2014, with several sittings conducted during this time, although not every day. DSC Chalmers recalled conducting a walk-through video at the premises and confirmed that Yvette and Victoria did separate walk-through videos.

164. On 5 March 2016, DSC Chalmers and another officer spoke to Olivia who declined to make a statement to police. DSC Chalmers recalled obtaining various school records, including contacting the secretary at St Joseph’s, who was unable to locate any records for Yvette or Victoria. She obtained RMS records for the complainants’ parents and records from the Registry of Births, Deaths and Marriages. She confirmed that Land and Property records were obtained for the premises but that police were unable to obtain information on renovations or additions to the premises.

The Defence Case

165. The applicant gave evidence. His evidence can be summarised as follows.

166. The applicant said that his family and the complainants’ family moved into the premises in June or July 1976. He said that when they first moved in, there was only a shed in the backyard, not big enough to drive a car into. He said there was no garage on the property when they moved in, and that this was the case until 1984 or 1985 when he built the garage.

[Aunt Donna]: She became sick?

[Yvette]: Yea

[Aunt Donna]: Ok God knows everything. I hope she gets better

[Yvette]: He does. You know why that thing happened, Aunty, because the Psychiatrist hypnotised her, and you know when something like that happens. She said everything and they record everything.

[Aunt Donna]: I know.

[Yvette]: That’s what happened and she told the truth. And she kept it all secret..because”

267. The conversation was translated into English, with the Arabic word “maghnatees” translated as “hypnotised”.

268. Victoria gave evidence in September 2018 that she had never undergone hypnosis therapy and nor had she told her mother or her sister that she had.

269. The complainants’ mother gave evidence on the voir dire in September 2018 that Victoria had never mentioned to her that she had been hypnotised. She stated that she was aware that Victoria had been seeking help, and that she previously believed the word “manghnatees” referred to a female psychiatrist, rather than hypnosis therapy.

270. Yvette made a statement to police on 17 September 2018 in which she denied that she was “ever certain or had any knowledge that Victoria was hypnotised”. She stated that the only thing that may have led her to say that was that she had heard her mother mention in a telephone conversation words to the effect of “[w]hen [Victoria] was sick, a psychiatrist assessed her and said that she was abused, and then she told them everything”. Yvette stated that she had never had a conversation with Victoria about being hypnotised and had never been told that by anyone.

271. Yvette gave evidence on the voir dire before Armitage DCJ stating that she had not been told that her sister had been hypnotised and had not meant to communicate hypnotism by use of the word “maghnatees” in the telephone conversation with her Aunt Donna. She believed the word “had to do with psychiatrists”.

272. The applicant’s daughter and the complainants’ cousin, Olivia, gave evidence in September 2018 that she received a phone call from Victoria in mid-2013 in which Victoria told her that “she had undergone hypnosis and that’s how she knew what had happened with my dad and she has proof, on paper, of the hypnosis”.

EMDR

273. Victoria gave evidence that she began EMDR therapy in June 2016 and did approximately six sessions in total over the next two years. She explained that the EMDR sessions occurred after she had given her statements to police (signed on 9 July 2014 and 17 November 2015) and received other types of counselling. Her evidence as to the procedure was that:

“I was always conscious and aware of what was happening. I was never hypnotised in any way.

[…]

This therapy did not cause me to recover any memories nor did it make more vivid the memories that I had. If anything, these sessions helped me think about my memories less and helped me suppress my traumatic thoughts.”

274. A 2015 expert report on EMDR authored by Mr Graham Taylor was tendered on the voir dire. Mr Taylor gave evidence about the process of EMDR and its effects on a patient’s memory. He explained the goals of EMDR as “the alleviation of presenting symptoms, a decrease or elimination of distress from the disturbing memory, improved view of self, relief from body disturbance, and resolution of present and anticipated triggers”. Common outcomes include the memory being “harder to recall… further away… [and] less detailed”. It is possible that a client who has had EMDR “may not have the level of detail” that they had before and for this reason it is important to have a prior record such as a police statement taken before therapy.

275. Mr Taylor’s evidence was that while it was “possible” for EMDR to create new memories, EMDR was not specifically used for the purpose of memory retrieval. Mr Taylor also stated that, for the purposes of a client giving evidence in court, it was important that detailed records be kept, to show that the work did not include procedures “that might lead to the formation of false memories”. In relation to Victoria’s treatment, Mr Taylor indicated that “very scant” details were available in this respect.

276. The therapist who administered the EMDR treatment to Victoria was Ms Schaus. She provided a letter confirming that the treatments were performed but she declined to give evidence by AVL (Ms Schaus practises in the United States and Victoria’s treatment was performed there). Ms Schaus stated in her letter that Victoria “was always aware of being in the present and was never in an altered state”.

Judgment of 17 June 2019

277. On 17 June 2019, Weber SC DCJ refused the application to exclude the entirety of Victoria’s evidence under s 137 of the Evidence Act 1995 (NSW) on either basis relied upon by the applicant. He published his reasons that day.

Hypnosis

278. The trial judge noted at the outset that if the applicant could not establish that Victoria had undergone hypnotherapy prior to giving her statement to police, the argument would not be made out. His Honour considered the evidence on the voir dire (summarised above) and found that:

“The crucial matter, in my view, is that [Victoria] has unequivocally denied that she underwent hypnosis either before the police statements or at all, and she denies telling anybody that she did. In order for me to uphold the hypnosis objection, therefore, I would need to disbelieve [Victoria] on her oath, based solely on a transcript, without having the benefit of seeing her. I am not prepared to do so. […]

Should the accused decide to open up this issue in cross-examination… it will be a matter for the jury to decide where the truth lies. […] Indeed, it seems to me that this question, if it arises, is an archetypal question for the jury.”

279. His Honour thus rejected the hypnosis ground because of a lack of evidence.

EMDR Therapy

280. In applying the s 137 test, his Honour found that Victoria’s evidence was of “considerable, indeed overwhelming, probative value”. His Honour summarised the applicant’s submissions on unfair prejudice as follows:

“1. The accused’s inability to access any form of record as to the conduct of the various EMDR therapy sessions.

2. The fact that the therapist would not be available for cross-examination.

3. The fact that the therapy is associated with memory.

4. The fact that the lack of a record of the conduct of the treatments meant that there was no possible way to compare Victoria’s memory before and after the treatment.

5. The fact that the accused cannot retain an expert to critique the conduct of the therapy.”

281. His Honour accepted the Crown submission that while these factors may amount to a forensic disadvantage to the accused, they would not cause unfair prejudice, for example “by provoking some irrational, emotional, or illogical response, or by giving the evidence more weight than it truly deserves”: R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 at [116] per Wood CJ at CL.

282. His Honour found that, if Victoria’s “memory in the witness box seems to be superior to her [police] statements, this no doubt will provide a fertile ground for cross-examination, and a matter to be considered by the jury”. His Honour also considered that, if the issue did arise, it could be dealt with by directions pursuant to s 165 of the Evidence Act.

Applicant’s submissions

Hypnosis

283. The applicant submitted that “the evidence considered by the trial judge established that Victoria was hypnotised prior to her giving her statements to police and that on that basis her evidence should have been excluded.” It was submitted that Victoria’s evidence about hypnosis therapy was “unconvincing, internally inconsistent and generally evasive on the question of hypnosis”.

284. It was similarly submitted that the complainants’ mother’s evidence was “evasive” and her evidence that she did not understand the Arabic term “maghnatees” was “at least disingenuous.”

285. The applicant submitted that this Court should find that Victoria was in fact hypnotised prior to giving her police statements and thus her evidence should have been excluded.

EMDR

286. The applicant made the same submissions in this Court as were made before the trial judge. The application was based on the identification of several forensic disadvantages the applicant would suffer if Victoria was permitted to give evidence as follows:

1. EMDR therapy is associated with memory, has the effect of interfering with memory, and risks creating new memories or distorting existing memories;

2. There is very little evidence as to what occurred during the therapy, making it impossible for the defence to test the integrity of the process;

3. The applicant was denied the opportunity to cross-examine the EMDR therapist on issues including her qualifications, experience, and the manner in which the EMDR therapy was conducted;

4. That the hypnosis evidence should have created doubt as to whether EMDR was undertaken before Victoria made her statements to police, and that this raised issues of credibility and reliability; and

5. That the applicant was precluded from ascertaining the effects of the EMDR therapy on Victoria’s memory.

287. The applicant cited the Office of the Director of Public Prosecutions (ODPP) Guidelines (Guideline 27) on hypnosis and EMDR which stipulate that: the evidence must be limited to matters that the witness has recalled or related prior to the hypnosis or EMDR; the original recollection should be preserved in written, audio, or video recorded form; and that the hypnosis or EMDR should be video recorded and performed by an independent person.

288. The applicant also relied on the decisions in R v Jenkyns (1993) 32 NSWLR 712 (“Jenkyns”); R v Tillott (1995) 38 NSWLR 1 (“Tillott”); R v KG (2001) 54 NSWLR 198; [2001] NSWCCA 510; and Director of Public Prosecutions (NSW) v J G [2010] NSWCCA 222 (“J G”), which I have considered below.

289. Overall, the applicant submitted that it would be “impossible and unfair to give any weight to the oral evidence of [Victoria]”.

Crown submissions

290. The Crown submitted that the relevant test is whether it was open to the judge to make the factual findings he did.

291. The Crown submitted that the findings of fact made by the trial judge as to whether Victoria had had hypnosis were open on the evidence and that, aside from reiterating the evidence that was before the trial judge, the applicant’s submissions did not reveal any error in the trial judge’s approach.

292. As for the risk of new memories being created through EMDR, there was no evidence that this had in fact happened in this case. It was further submitted that the description given by Victoria as to the relevant process was consistent with the expert evidence about the effects of EMDR.

293. The Crown distinguished this case from other cases in which memories were obtained by EMDR or hypnosis. In the present case the trial judge found that Victoria had given her statements to police prior to undergoing EMDR. The trial judge’s finding as to the order of events was a factual finding that, again, should not be overturned except in accordance with the principles in R v O’Donoghue (1988) 34 A Crim R 397.

294. Finally, the Crown submitted that it was possible to compare Victoria’s police statements with her evidence at trial in order to determine whether any new memories were created by EMDR. The issue of recreation or distortion of memory by EMDR was not pressed at trial. Nor did the applicant seek a direction at trial under s 165 of the Evidence Act based on the EMDR therapy, despite that issue being flagged by the trial judge in his judgment.

Consideration

295. This ground asserts error in the trial judge’s failure to exclude evidence under s 137 of the Evidence Act. In order to successfully appeal against such a decision, the applicant must establish error under one or more of the limbs in House v The King (1936) 55 CLR 499; [1936] HCA 40.

296. The applicant’s argument in this Court repeated the arguments made to the trial judge to support its contention that the trial judge ought to have made different findings due to the forensic disadvantage the applicant would suffer at trial.

Hypnosis

297. I turn first to the application for exclusion of Victoria’s evidence based on alleged hypnosis. The error alleged was a failure by the trial judge to make the factual finding contended for by the applicant. Hunt J framed the applicable test when error in a factual finding is asserted in this Court as follows in R v O’Donoghue (1988) 34 A Crim R 397 at 401:

“It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below …. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. … It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge’s findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice … Kryiakou (1987) 29 A Crim R 50 at 60-61.”

298. There have been some doubts raised in this Court as to the applicability of this test in sentence appeals: Clarke v R [2015] NSWCCA 232 and Hordern v R [2019] NSWCCA 138. No such doubts have been expressed in relation to the R v O’Donoghue formulation in conviction appeals and the applicant did not contend otherwise in this appeal. I propose to consider this ground by applying this test: was it open to the trial judge to make the finding he did?

299. The applicant did not contend that there was no evidence to support the finding made by the trial judge nor that the evidence was “all one way”. Rather, it was submitted that his Honour ought to have arrived at a different conclusion. It was at no time explained why it was not open to the trial judge to accept the evidence of Victoria, Yvette and their mother. This first argument fails.

EMDR

300. The applicant’s second argument based on Victoria having had some EMDR treatment is also misconceived. It is accepted that there have been concerns raised as to the impact of hypnosis or EMDR treatment on the evidence of witnesses but those concerns have arisen where hypnosis or EMDR have been used to revive memory.

301. In Jenkyns, the witness gave a statement to police in which he recalled seeing the accused wearing a football jersey, shorts, and a pair of white runners. Nine days after giving his statement to police, the witness was hypnotised by a police officer in order to find out whether there were any small aspects which he had forgotten. During the hypnosis, the witness repeated that he was unable to see the detail of the accused's footwear. This was because the accused was too far away or because the light was “not good”. It was then suggested (by implication) by the police officer conducting the hypnosis that the witness could in fact see that detail. Shortly afterwards the witness agreed that he could.

302. During and after the hypnosis in Jenkyns, the witness recalled that the runners were fairly dirty with no stripes or markings on their side except for a brand name written in dark lettering down the side of the laces. In evidence, the witness identified a Reebok Phase One tennis shoe as being “very very similar” to those worn by the accused. Significantly, at the time of the hypnosis, and at trial, the police believed that the person who committed the murder was wearing Reebok shoes. Hunt CJ at CL excluded the evidence relating to the details of the shoes because (at 726-7):

“There [are] many areas of concern in relation to the reliability of this hypnotically induced evidence… There are the implied suggestions made by [the police officer] as to the capacity of [the witness] to see what he was saying that he could not see, the emphasis placed both prior to and during the hypnosis upon the importance of his answers in relation to the type of footwear worn by the accused, [the police officer’s] lack of independence from the police force, the presence of one of the investigating officers during the hypnosis session, the significant discrepancy between the recollection of [the witness] during the hypnosis session and his subsequent hypnotically induced statement and evidence, and the absence of any reason for [the witness] to have perceived this detail about the accused's footwear in the first place … Taken cumulatively … these concerns prevent me from being satisfied that the hypnotically induced evidence given by Lewis is sufficiently reliable as to provide a prima facie reason for admitting it, and that evidence is rejected.”

303. In Tillott, the witness’ evidence changed significantly following a session of EMDR therapy. In those circumstances Abadee J (Grove and James JJ agreeing) held that (at 9):

“it is clear [from his post-EMDR statement], that [the witness] had a much more specific memory of the incident in question than he did [before the EMDR] … In the first statement he said: ‘I cannot remember which prisoner did what…’ … In the second statement he identified with some specification the role of each of the accused, what each did to him, that is who assaulted him and in what way.”

304. The EMDR session in Tillott was not video recorded. Abadee J found that EMDR presented many of the same dangers as hypnosis, and thus the “procedural safeguards” set out in R v McFelin [1985] 2 NZLR 750 and R v Jenkyns had to be applied (at 40). His Honour found that the evidence ought to have been excluded either because of non-compliance with the procedural safeguards or because of unfairness to the accused (at 40-41).

305. Both Tillott and Jenkyns were determined prior to the enactment of the Evidence Act.

306. In R v KG (2001) 54 NSWLR 198; [2001] NSWCCA 510 at [29], this Court heard a stated question under the then s 5A(2)(a) of the Criminal Appeal Act. The question for determination was (at [10]):

“Does EMDR (eye movement desensitisation and reprocessing), undertaken for therapeutic purposes, act retrospectively to take evidence which is consistent with accounts given prior to EMDR having taken place, thereby rendering it inadmissible?”

307. Priestley JA, with whom Greg James and Kirby JJ agreed, found at [29]:

“The result is, in my opinion, that Tillott had the consequence that a trial judge might reject the evidence of a witness who had undergone EMDR which was not video recorded, because of that fact alone, but would not, because of the lack of video recording, be bound to exclude it.” [emphasis added]

308. In J G, the Crown sought to adduce evidence of video recorded interviews conducted in September 2003 with a child witness. The child witness subsequently undertook two sessions of hypnosis in October 2003. Cross-examination was to occur at trial in 2009. The trial judge found that the evidence was inadmissible either on the basis of Tillott or under s 137. The Court of Criminal Appeal found that the trial judge erred in refusing to admit the evidence. Basten JA found at [131] that:

“The possibility that the two sessions of hypnosis have increased the confidence of the daughter in the memories earlier recorded must be acknowledged. However, the evidence did not support giving that factor significant weight. As his Honour noted, the Court ‘knows very little about what has happened to [the child witness] in the nearly six years which have elapsed since the hypnosis sessions’: at [173]. That is true, but common. The effectiveness of cross-examination is frequently diminished by the lapse of time and loss of memory. Cross-examination of a witness with a full recollection of the events at the time of the matter in question is not a universal requirement of a fair trial, but merely a consideration to be taken into account in particular circumstances.”

309. R S Hulme J found at [174] that:

“[…] The fact of hypnosis means that [the accused] would, in the words quoted by Buddin J, ‘no longer have the same witness to cross-examine’. I have no difficulty in accepting that in some circumstances that would amount to unfair prejudice of a high order (though often no higher than if the author of a statement had died or otherwise become unavailable). However, […] it is clear that there is no inflexible rule that hypnotically-induced testimony is inadmissible – R v Jenkyns (1993) 32 NSWLR 712 at 714. Because it seems to me in the highest degree unlikely that the Accused would choose to challenge virtually all of [the child’s] testimony as recorded in the January 2003 interviews, in the circumstances of this case, I do not regard that danger of unfair prejudice as high and certainly not so high as to outweigh the probative value of [the child’s] evidence as recorded in the January 2003 interviews.”

310. None of these cases concern a case such as the present where the EMDR is undergone after the police statements have been made and there is no evidence of any apparent change in the witness’s recollection after the treatment.

311. Section 137 of the Evidence Act provides that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. There could be no doubt that the probative value of Victoria’s evidence was very high. None of the charges relating to Victoria could have been established without her evidence

312. It has been held that the danger of unfair prejudice means the risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the issues in the case: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]-[92]. The applicant did not suggest that there was any risk that Victoria’s evidence could be misused by the jury in some unfair way logically unconnected with the issues in the case. In submissions before both the trial judge and in this Court the applicant relied upon the forensic disadvantage he would suffer such that Victoria’s evidence should be excluded.

313. Even if suffering a forensic disadvantage could be equated with a risk of unfair prejudice in this case, the applicant has not identified any forensic disadvantage suffered by the applicant at trial. It was always open to the applicant to test whether there were any revived memories following the EMDR therapy by comparing Victoria’s police statements with the evidence she ultimately gave at trial. There was no attempt to do so on this appeal.

314. The applicant has not established any error, whether under House v The King or otherwise.

315. I would reject ground 2(a).

Ground 2(b)

316. The second aspect of ground 2 contended the trial judge erred in admitting the evidence of complaint in this matter.

Complaint evidence

317. Both complainants told their close friends, boyfriends and husbands about the sexual abuse over the years but insisted that it remain private. These confidants were called at the trial about what they had been told by Yvette and Victoria over the years.

318. I have summarised the hearsay evidence of these witnesses above at [117].

319. The applicant did not ultimately object to the evidence of Kathleen Hormazabal, George Rivera and Aunt Ibrahim, but objection was made to the remaining seven complaint witnesses on the basis that their evidence could not said to be “fresh in the memory” within s 66(2) of the Evidence Act.

The Evidence Act

320. Section 59(1) of the Evidence Act provides that:

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

321. An exception to the hearsay rule is provided in s 66(2) of the Evidence Act which provides that:

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by--

(a) that person, or

(b) a person who saw, heard or otherwise perceived the representation being made,

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

[emphasis added]

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—

(a) the nature of the event concerned, and

(b) the age and health of the person, and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

322. Section 108(3) of the Evidence Act provides:

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if--

(a) evidence of a prior inconsistent statement of the witness has been admitted, or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

and the court gives leave to adduce the evidence of the prior consistent statement.

Judgment of 17 June 2019

323. By judgment of 17 June 2019, Weber SC DCJ found that the complaint evidence was admissible under s 66(2) of the Evidence Act. His Honour found that if the alleged offences occurred, they would be expected to be “burnt” into the memories of the complainants.

324. His Honour further found that the level of detail provided by the complainants in their police statements from 2014 onwards reinforces that the events were fresh in their minds at that time and therefore would have been fresh in their minds at an earlier time as well.

325. His Honour found that the lack of detail in some of the complaints did not detract from the proposition that the events were likely to be fresh in the complainants’ memory at the time. This was reinforced by consideration of the ages of the complainants at the time the complaints were made, their relationship with the person to whom the complaints were made, and the gender of the person to whom the complaints were made.

Applicant’s submissions

326. The applicant submitted that the trial judge erred in finding that the complaint evidence was “fresh in the memory” of the complainants at the time the representations were made.

327. The applicant noted that some of the complaints were made 30 to 40 years after the alleged offences and submitted that the reasoning used by the trial judge to admit these representations renders the temporal consideration in s 66(2A)(c) (“the period of time elapsed…”) meaningless.

328. The submissions made in this Court were the same submissions made before the trial judge.

Crown submissions

329. The Crown submitted that the temporal requirement in s 66(2A)(c) must be considered in light of the nature of the event (subs (a)), so that the effluxion of time will have more impact on the admissibility of representations about mundane events than those about traumatic events.

330. The Crown submitted that the complaints would otherwise have been admissible under s 108(3) of the Evidence Act in any event and, given that there was no objection to some of them under s 66(2), they would have been admissible under s 60 as proof of the asserted fact, subject to a s 136 direction to limit its use.

Consideration

331. The meaning of “fresh in the memory” in s 66(2) of the Evidence Act was considered by the High Court in Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61. Gaudron, Gummow and Hayne JJ explained the meaning of the phrase in its statutory context as follows (at 608):

“The word ‘fresh’ in its context in s 66, means ‘recent’ or ‘immediate’. It may also carry with it the connotation that describes the quality of the memory (as being ‘not deteriorated or changed by lapse of time’) but the core of the meaning intended, is to describe the temporal relationship between ‘the occurrence of the asserted fact’ and the time of making the representation. Although questions of fact and degree may arise the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.”

332. In the years following this decision complaint evidence was only adduced under s 66(2) of the Evidence Act if it was made in the “hours or days” after the occurrence of the asserted fact. Despite this, complaint evidence that did not have this temporal connection was invariably adduced under s 108(3) of the Evidence Act instead.

333. Section 108(3) of the Evidence Act arose for consideration in any sexual assault trial where complaint was made that was not considered “fresh” and the defence case was that the complainant’s allegation was an invention or fabrication. In such cases the Crown would be granted leave to adduce the evidence of any prior consistent statements, namely any evidence of complaint, to restore the credibility of the complainant (if the nature of the complaint evidence had the capacity to do so). Once the evidence was admissible under s 108(3), the operation of 60 of the Evidence Act means that it becomes admissible as evidence of the truth of its contents. The question of whether its use should be limited under s 136 turned on the facts in each case.

334. Subsection (2A) of s 66 of the Evidence Act was inserted on 1 January 2009 as a response to the decision of the High Court in Graham v The Queen.

335. Subsection (2A) was considered by this Court in R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181 (“XY”). In XY, the alleged offences occurred in 2003 and 2004 and the complainant told a school friend about the abuse in 2007. Whealy J observed that the time elapsed between the alleged offences and the complaint remains a relevant but not determinative consideration under s 66(2): at [79]. Other factors relevant to the finding that events were “fresh in the memory” of the complainant in 2007 included the distinguishing features and details of the offending in the representations and that the complainant was “clearly embarrassed, troubled and not at all like his normal self” (at [84]). Whealy J concluded at [85] that:

“All these aspects of the representation, especially the nature of the event described, suggested forcibly and persuasively that the occurrence of the sexual incidents was indeed ‘fresh in the memory’ of the complainant at the time it was made in 2007. Importantly, the complainant had placed the events as occurring when he had been in Years 2 and 3 at school. He had, in fact, been in Year 2 in 2003 and Year 3 in 2004. There was no inexactness or contradiction about the period of time … Moreover, as I have said, the very nature of the events described, and their unusual features, had been recounted to [the complainant’s friend] in a manner that suggested those events were well and truly implanted in the complainant’s memory. Despite, the vivid picture painted, the trial judge appears to have paid no attention to, nor taken into account, this very telling feature.”

336. The High Court considered s 66(2A) of the Evidence Act in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 (“Bauer”). Their Honours explained the effect of subs (2A) as follows:

“[89] In Graham v The Queen, a majority of this Court held that, as s 66 of the Evidence Act 1995 (NSW) was then drafted, its use of the word “fresh” imported a close temporal relationship between the occurrence of the asserted fact and the time of making the representation and hence that contemporaneity was the most important consideration in assessing a representation under that section. Thereafter, sub-s (2A) was inserted into s 66 of the Evidence Act to make clear that the intention of the section is that ‘freshness’ is not confined to the time which elapses between the occurrence of the relevant event and the making of the representation about that event. Since then, it has rightly come to be accepted by intermediate courts of appeal that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years. It depends on the facts of the case.” (footnotes omitted) [emphasis added]

337. In Bauer, representations were made by the complainant about events that had occurred over a period of ten years before the complaint was made. These were held to be admissible under s 66(2) because:

“[92] ... given the nature of the sexual acts alleged, the fact that they were repeated time and again over a period of years, the fact that it seems they continued up to less than a year before the conversation with [the complainant’s friend], and [the complainant’s] highly emotional state at the time of the conversation with [her friend], it is very probable that the events disclosed to [the complainant’s friend] were vivid in [the complainant’s] recollection at the time of the conversation and would remain so for years to come.” (footnotes omitted)

338. Similarly, in R v Gregory-Roberts [2016] NSWCCA 92, complaints made two years and four years after the events occurred were held to be “fresh in the memory” of the complainant at the time she made the representations because:

“[47] These were all, unquestionably, most unusual experiences for any 11 year old child to have when seeing an ophthalmologist, after school, in his rooms. Further light is shed on the nature of those experiences for the complainant, by the evidence that, at the time, she came to consider the respondent to have been her boyfriend. Contrary to the respondent’s submissions, all of this evidence is capable of informing a conclusion that these were memorable, complex and emotionally arousing experiences for the complainant.

[48] This, when considered together with the complainant’s youth and her naivety in sexual terms when she was aged only 11 years, made it highly likely that the memory of these events would endure in her memory for years to come. That is consistent with these events being still fresh in her memory at the time that she made the representations in issue to the three proposed witnesses, when only some two and four years had passed since the events were alleged to have occurred.” (per Schmidt J, McCallum and R A Hulme JJ agreeing)

339. Having had regard to the principles derived from these decisions, I am satisfied that the circumstances in which complaint was made each time (distress), the particular details provided and the fact that the sexual abuse at the hands of their uncle (the applicant) was clearly something burned into their memories are all relevant factors to take into account and were in fact taken into account by the trial judge.

340. The fact that the complaints were made on an ongoing basis over the years is a highly relevant matter when considering whether some of the latter complaints were still fresh in the memory of the complainants. The applicant submitted that if complaint made 30-40 years after the asserted fact is held to be admissible under s 66(2) “then it is difficult to imagine a situation where a complaint in a historic child sexual abuse matter would ever be excluded …”. The difficulty with this submission is that there is a significant difference between a complainant disclosing alleged abuse for the first time after a 30-year period and having disclosed it numerous times over the years to different people during that same time period. Even then, it may be that the former will be considered to still be fresh; it will depend on the facts in each case.

341. The trial judge was made aware of the relevant test and set out the relevant delay in relation to each witness in his judgment. The applicant has not identified any House v The King error not any error at all in the judgment of the trial judge. The nub of the complaint is that complaint evidence made to some of the later witnesses was so old that it could never be admissible under s 66(2) as hearsay evidence. I am not satisfied that this is the case.

342. Even if the argument under s 66(2) had been successful, the evidence was otherwise admissible under s 108(3) for the reasons I have explained above at [333].

343. I would not uphold this ground.

Proposed Orders

344. The orders I would propose are as follows:

1. Leave to appeal against conviction is granted.

2. The appeal is dismissed.

345. IERACE J: I also agree with her Honour’s judgment and the orders proposed by her Honour.

Decision last updated: 26 March 2021