MacDonald v The King

[2024] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MacDonald v R [2024] NSWCCA 240

Hearing dates:

11 November 2024

Decision date:

20 December 2024

Before:

Adamson JA at [1];
Ierace J at [237];
Sweeney J at [263]

Decision:

(1) Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of all grounds.

(2) Grant leave to appeal in respect of ground 1 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

(3)   Dismiss the appeal, except with respect to ground 3 in so far as it relates to count 11.

(4) Quash the conviction on count 11 and, in lieu thereof, substitute a verdict of guilty of indecent assault contrary to s 61E(1) of the Crimes Act 1900 (NSW) pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW).

(5)   Remit the matter to the District Court for re-sentence.

(6)   List the matter in the arraignment list in Wollongong at 9.30am on 10 February 2025.

Catchwords:

CRIME — appeals — appeal against conviction — inconsistent verdicts — where applicant convicted of 11 sexual offences against two children — where applicant was acquitted of one count charged — whether there was rational explanation for the acquittal — where complainant’s evidence of acquitted count was uncertain compared to her evidence of other counts

CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of 11 sexual offences against two children — whether alleged implausibility of complainants’ versions (because the conduct was so brazen) resulted in an unreasonable verdict — where offending conduct was committed in plain sight or when others were nearby — whether disparities between complainants’ versions and evidence of complaint witnesses resulted in unreasonable verdict

CRIME — appeals — appeal against conviction — miscarriage of justice — application of proviso — where applicant convicted of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act 1900 (NSW) — where complainant was under 16 years old — where Crown was required to prove the complainant did not consent to sexual intercourse — where trial judge misdirected jury as to consent element of offence — where defence counsel agreed to direction as given — whether misdirection resulted in substantial miscarriage of justice — whether proviso ought be applied

Legislation Cited:

Crimes Act 1900 (NSW), ss 61D, 61E, 76, 77

Criminal Appeal Act 1912 (NSW), ss 5, 6, 7

Evidence Act 1995 (NSW), s 165B

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Bridger v R [2022] NSWCCA 125

Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7

Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43

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

Malicki v R; R v Malicki [2015] NSWCCA 162

McGrath v R [2010] NSWCCA 48; (2010) 199 A Crim R 527

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

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

Nguyen v R [2017] NSWCCA 145

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Omigie v R [2024] NSWCCA 205

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29

R v Birks (1990) 19 NSWLR 677

R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558

R v Johnston (1998) 45 NSWLR 362

R v MacDonald [2024] NSWDC 136

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

Sita v R [2022] NSWCCA 90

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

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

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6

Z (a pseudonym) v R [2022] NSWCCA 8

Category:

Principal judgment

Parties:

Kenneth MacDonald (Applicant)
Rex (Respondent)

Representation:

Counsel:
R Steward (Applicant)
M Millward (Respondent)

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

File Number(s):

2022/113474

Publication restriction:

Publication of names and any information or material that may lead to the identification of the complainants is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

6 December 2023; 23 February 2024

Before:

Haesler SC DCJ

File Number(s):

2022/113474

HEADNOTE

[This headnote is not to be read as part of the judgment]

Kenneth MacDonald (the applicant) sought leave to appeal against his convictions of 11 counts of sexual and indecent assault against two complainants, JC and MA, under the age of 16. He proposed three grounds of appeal, being in substance that:

1. the primary judge’s failure to direct the jury regarding the elements of counts 6-8, 10 and 11, and his counsel’s failure to object to the directions given on those counts, resulted in a substantial miscarriage of justice;

2. the verdicts of guilty on counts 1, 2, 3 and 12 were inconsistent with the acquittal on count 9; and

3. the verdicts of guilty on counts 1-8 and 10-12 were unreasonable and could not be supported having regard to the evidence.

The offending conduct allegedly occurred between 1980-1986, when the complainants were aged between 4-14 years old and lived with their families in close proximity to the applicant. Their parents were friends with the applicant and his wife, so JC and MA often spent time at the applicant’s house and would often walk past his garage (in which he spent a lot of time with the roller door open) to visit each other or to get to school.

The Crown case, which was substantially based on the evidence of JC and MA and which also relied on complaints they had made to others (including their parents, siblings and friends), was that the applicant committed the following offences:

1. Three counts of indecently assaulting JC contrary to s 76 of the Crimes Act 1900 (NSW), by putting her hands on his penis when she and MA were resting in his bed while their parents were playing cards at his house (count 1); and running his hand from JC’s vagina to her head when she was trying to leave his house through the garage (counts 2 and 3).

2. Two counts of indecently assaulting MA and one count of indecently assaulting JC contrary to s 61E(1) of the Crimes Act, by digitally penetrating MA in his living room when her parents and his wife were playing cards in the adjacent kitchen (count 4); digitally penetrating MA when she was sitting on his lap in her swimming costume at a table when other adults were also sitting around the table (count 5); and grabbing JC’s breast on her birthday which left a grease mark on her new top (count 12).

3. Six counts of sexual intercourse with MA without her consent contrary to s 61D(1) of the Crimes Act, by putting his penis in her mouth in his garage (counts 6-8); digitally penetrating her in his garage when she was in her swimmers and her father was present (count 9); putting his penis in her mouth in the garage when his wife walked in (count 10); and digitally penetrating her in his bedroom on which occasion he threatened to have sex with her one day (count 11).

The applicant’s case was that none of the alleged conduct occurred. He was acquitted of count 9, but convicted of all other counts.

The applicant’s first proposed ground of appeal challenged the trial judge’s direction to the jury as to the elements of the offence of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act. While the trial judge’s initial draft direction correctly identified a specific element of this offence as being that the complainant did not consent to the act of sexual intercourse, this wording was removed after the prosecutor submitted it was unnecessarily complex. Instead, the final form of the direction stated (incorrectly) that the consent of the complainant was no defence to any of the counts because a person under the age of 16 cannot consent.

The Court held (Adamson JA, Ierace J agreeing with additional reasons and Sweeney J dissenting), granting leave to appeal, allowing the appeal on ground 3 only insofar as it related to the applicant’s conviction on count 11 and otherwise dismissing the appeal:

Per Adamson JA and Ierace J:

Ground 1: direction as to the elements of s 61D(1)

1. MA’s age at the time of the alleged offending did not render her incapable of consenting to sexual intercourse for the purposes of an offence contrary to s 61D(1). The direction to the jury was erroneous: at [171]-[173] (Adamson JA), [242] (Ierace J).

2. The proviso ought be applied as this error did not result in a substantial miscarriage of justice. Because the applicant’s case was that none of the conduct charged occurred, there was effectively no issue about consent in the trial at all. In any event, the evidence was sufficient to prove beyond reasonable doubt that MA did not consent to the sexual intercourse: at [224]-[234] (Adamson JA), [242]-[251] (Ierace J).

Ground 2: alleged inconsistent verdicts

1. This ground is not made out. There is a rational explanation for the acquittal other than doubts about JC’s credibility. She was uncertain about the physical act that occurred, compared to the other counts which JC could describe clearly: at [180]-[191] (Adamson JA), [252]-[256] (Ierace J).

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151, applied.

Ground 3: alleged unreasonable verdicts

1. Having reviewed all the evidence at trial, it was open to the jury to find the applicant guilty of counts 1-8, 10 and 12. It was open to the jury to regard the tendency evidence as establishing a pattern of opportunistic, predatory and brazen offending against MA and JC: at [192]-[219] (Adamson JA), [257]-[262] (Ierace J).

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied.

1. As to count 11, MA’s evidence did not specify that she was digitally penetrated with respect to this count with the result that it was not open to the jury to convict the applicant of this count. The verdict ought be set aside and substituted by a lesser offence contrary to s 61E(1) (as agreed by the parties): at [220]-[222] (Adamson JA).

Per Sweeney J:

1. On ground 1, the trial judge did not direct the jury about the elements of the complainant’s lack of consent and the applicant’s knowledge of such. That misdirection was such an irregularity that a miscarriage of justice occurred: at [264]-[268].

McGrath v R [2010] NSWCCA 48; Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6; Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43, applied.

1. On ground 2, despite JC’s contradictory evidence which casts doubt on her reliability, there was a basis on which the jury may have distinguished count 9 from the other counts involving her, that being the absence of evidence from her father: at [306].

2. On ground 3, having conducted an independent assessment of the evidence, the quality of the evidence is such that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the counts charged. The jury should have had a reasonable doubt about the evidence of each complainant: at [307]-[332].

JUDGMENT

1. ADAMSON JA: Kenneth MacDonald (the applicant) seeks leave to appeal against his convictions following a trial by jury over which Haesler SC DCJ (the trial judge) presided, which commenced on 27 November 2023 and concluded on 6 December 2023. The applicant was charged with 12 counts of sexual and indecent assault of two complainants under the age of 16, JC and MA, and was convicted of 11 of those and acquitted of one: count 9.

2. The counts, the offences charged and the particulars of the offending conduct are summarised in the table below. Count 9 is in italics as the applicant was acquitted of this count.

Count	Date range in indictment	Complainant / evidence of age at time	Offence, Crimes Act 1900 (NSW) section	Applicant’s alleged conduct
1	1 January 1980 – 1 March 1980	JC / “about 4” years	Indecent assault of person < 16 years, s 76	Putting JC’s hands on his penis.
2	1 January 1980 – 30 October 1986	JC / 8-10 years	Indecent assault of person < 16 years, s 76	Touching JC’s body on the outside of her clothes in the garage.
3	1 January 1980 – 30 October 1986	JC / 8-10 years	Indecent assault of person < 16 years, s 76	Touching JC’s body on the outside of her clothes in the garage.
4	13 October 1980 – 12 October 1986	MA / 8 or 9 years	Indecent assault, s 61E(1)	Digitally penetrating MA in the living room.
5	13 October 1980 – 12 October 1985	MA / 8-12 years	Indecent assault, s 61E(1)	Digitally penetrating MA at the table.
6	13 October 1982 – 12 October 1986	MA / 10 or 11 years	Sexual intercourse without consent with person < 16 years, s 61D(1)	Putting his penis in MA’s mouth in the garage.
7	13 October 1982 – 12 October 1986	MA / 10-13 years	Sexual intercourse without consent with person < 16 years, s 61D(1)	Putting his penis in MA’s mouth in the garage.
8	13 October 1982 – 12 October 1986	MA / 10-13 years	Sexual intercourse without consent with person < 16 years, s 61D(1)	Putting his penis in MA’s mouth in the garage.
9	1 December 1983 – 1 March 1984	JC / about 8 years	Sexual intercourse without consent with person < 16 years, s 61D(1)	Digitally penetrating JC while she was wearing swimmers.
10	13 October 1984 – 12 October 1986	MA / about 12 years	Sexual intercourse without consent with person < 16 years, s 61D(1)	Putting his penis in MA’s mouth in the garage.
11	13 October 1984 – 12 October 1986	MA / 11 or 12 years	Sexual intercourse without consent with person < 16 years, s 61D(1)	Digitally penetrating MA while in bed.
12	30 October 1988 – 13 October 1989	JC / 13 or 14 years	Indecent assault, s 61E(1)	Grabbing JC’s breast.

3. On 23 February 2024, the trial judge imposed an aggregate sentence of 9 years’ imprisonment commencing on 4 December 2023 and expiring on 3 December 2032, with a non-parole period of 5 years and 6 months, expiring on 3 June 2029. There is no application for leave to appeal against the sentence.

4. The proposed grounds of appeal against the convictions, if leave is granted, are as follows:

Ground 1

i   The failure to direct the jury regarding the elements of counts 6, 7, 8, 10 and 11 resulted in a substantial miscarriage of justice.

ii    The failure of counsel for the appellant to object to the directions on the same counts led to a substantial miscarriage of justice.

Ground 2

The jury’s acquittal of the appellant on Count 9 is inconsistent with the verdicts of guilty on counts 1, 2, 3 and 12.

Ground 3

The verdicts of the jury in respect to Counts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 are unreasonable or cannot be supported having regard to the evidence in the trial.

5. Because of the width of the grounds of appeal, it is necessary to survey the evidence of all counts adduced at trial, as well as to address the formulation of the direction given as to the elements of counts 6, 7, 8, 10 and 11.

6. Leave to appeal is required as each of the grounds raises a mixed question of fact and law: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

7. All references to legislation in these reasons are references to the Crimes Act 1900 (NSW), except where otherwise indicated.

The trial

The Crown case

8. The Crown case was substantially based on the evidence of JC and MA. The Crown also relied on the complaints each had made to others regarding the applicant’s offending conduct and the similarity of the applicant’s offending conduct with respect to each of them. In addition, the Crown relied on tendency evidence of LW and DG (female friends of MA) and MC (JC’s brother) to demonstrate that the applicant had a sexual interest in young girls and had a tendency to act to satisfy that sexual interest.

Background

9. At the time of the alleged offending, the applicant and each of the complainants lived in close proximity in Thirroul, on the New South Wales coast near Wollongong (Ex A). JC, who was born in October 1975, lived in a house with her mother, LC, her father and her two brothers, AC, who was six years older and MC, who was four years older than she was. MA was born in October 1972. She lived with mother, VB, her father, an older brother who was born in 1970 and a younger brother, AB, who was born in 1978.

10. The house where JC lived backed onto the property where MA lived. The two friends would often have conversations over the fence. The applicant lived on the street which connected JC’s street to MA’s. When JC and MA walked to each other’s places, they had to pass the applicant’s property.

11. JC and MA both attended Thirroul Public School and later Bulli High School. MA completed Year 12 in 1990, but JC did not finish school. They were able to walk to primary school from their homes but had to catch a bus to the high school.

12. The driveway to the applicant’s house led straight into a garage with a roller door, in which the applicant spent a lot of time. The applicant had a clear view of the street from the garage as he kept the garage roller door open. At the side of driveway there was a flight of stairs leading up to the house, part of which was above the garage (Ex A).

13. The applicant and his former wife, DC, had three sons, the eldest of whom was born in about 1978. One of the applicant’s sons, CM, was very close to MA’s brother, AB. There were only ten weeks between their ages. VB described them as being “like brothers” and said that AB went to CM’s house daily and if he was not there, CM was at AB’s home. AB’s evidence was that the applicant’s family considered him to be “their fourth child”.

14. JC’s and MA’s parents were friends and socialised with other couples who lived in the area, including the applicant and his wife. The other families, the Ps and the Gs, also had young children. The Gs had a daughter called DG, who became friends with MA.

15. JC and MA addressed the applicant and his wife as “Uncle Ken” and “Auntie Debbie” but JC called MA’s parents “Mr and Mrs [B]”.

16. When the families socialised in the evening, there was often a barbecue meal and the parents would drink alcohol. According to MA, DG and VB, most of the gatherings between the families took place at the applicant’s house. VB explained:

“[The applicant and his wife] did do it the most. They were the more central to us all, and yeah, probably their place was the most convenient.”

17. After dinner, the parents would usually play cards in the kitchen, the boys would watch television in the lounge room and, when it was their bedtime, JC and MA, who were often the only girls present, would go to bed together and sleep until their parents were ready to pick them up and carry them to their respective homes. When the gathering was at the applicant’s house, the girls would go and sleep in the master bedroom which the applicant shared with his wife. According to VB, the Ps and the Gs would take their children home to sleep but JC and MA would be expected to sleep at the residence where the gathering took place until their parents were ready to leave, which was usually at about 11pm.

18. According to DC, the applicant would get home from work at about 3.30 or 4pm, unless he worked overtime, and he would go to the garage and drink beer. She spent very little time in the garage herself, except to put her car in there. When asked whether children played in the garage while the applicant was there she said:

“Not that I can recall. All he wanted to do was finish work, drink beer, have a smoke, and try and get a talk to somebody on the phone or get a neighbour. He really did not spend time with kids.”

19. Frequently, when MA’s brother, AB, was at the applicant’s house with CM, MA’s mother would either call over the fence or ask MA to go and get him for dinner, which was served at 5pm. DC recalled MA sometimes coming over to collect her brother. MA’s evidence was that, when she went around, or was passing by, the applicant was “always” in his garage.

20. MA described the wall of the applicant’s garage as displaying “lots of pornographic photos [of] naked women [in lots of positions]” around the applicant’s work bench. MA gave evidence that sometimes the applicant would call her into the garage and say:

“… ‘See that girl there, that’s how you sit. See that girl there, that’s how you pose, that’s how you stand.’ He used to say, ‘And you’re going to be a porn star one day. You’re going to look like them.’ He used to get me to pose. Yeah. So, that was – he used those for, I don’t know, to show me what to do.”

21. VB described the garage as follows:

“The garage was a man’s domain. There was lots of coasters on fridges and walls. There was lots of naked – not naked, semi-naked women calendar pictures on the walls. Yeah, and basically tools and those sorts of things in there, yeah.”

22. According to MA, there was a fridge in the garage because the applicant was “a massive beer drinker” and was always drinking a schooner of beer from a glass in the afternoon. He also smoked there. VB described the applicant as “a very big drinker [who] always drank in his garage, but … if we were upstairs he would drink upstairs too”. According to VB, the applicant “always had a beer in his hand, always” and was “always” smoking cigarettes. DC said that she divorced the applicant because he drank “[w]ay too much”. She confirmed that she had no idea that he was engaged in any child sex offending.

23. When JC was in high school, she went to the applicant’s place to babysit the applicant’s sons before and after school while the applicant and his wife went to work. She prepared breakfast for them and took them to the bus stop. The applicant worked as an electrician and had a work panel van and his wife worked for the Road and Transport Authority. The applicant finished work before DC, and when he came home, JC would “get out of there as quick[ly] as [she] could”. DC recalled that she engaged JC on week days when she had to go to work.

First alleged offending conduct against MA that was not charged

24. The first time MA can remember the applicant sexually assaulting her was when she was about seven or eight years old and her parents went to Singapore. Initially, MA stayed with her grandparents. However, “on the night before” her parents were due to return, MA had to stay with the applicant and his wife. MA’s evidence was:

“… I’ve got an occasion which I believe is the first time. My parents went away, and I somehow was at his house the night before my parents were due to come home, and I remember being in the bath and then he has come in and said, ‘Come on, out you get’. So I hop out of the bath. And then he proceeds to wipe me. And then as he’s wiped me, his hands have slipped from the towel, and some fingers have inserted into me, into my vagina. And I just remember just standing there in full-on shock. He was kneeling down at the time. So his eyes were level with mine. And I remember looking into his eyes, and he had the look of satisfaction in his eyes. And then I can’t – I can’t remember what’s happened after that, whether, where my clothes were, how I left the bathroom, I don’t know. It was just – I was just in shock.”

25. The next day, the applicant drove MA to the airport in his car to meet her parents. Her evidence was:

“So I can remember going up to the airport with [the applicant] in the car. And then I remember running up to mum and dad as soon as I’ve seen them, and – and just jumping and hugging them. And then mum, mum said to me ‘What’s wrong?’ And I just – I just remember turning around and then looking at him. And he just had this look of like, don’t you dare, like it was, yeah, just a real, mmm, like a cranky look at me. And then – and then somebody said, ‘Did you miss – did you miss us?’ And I – and I just went ‘Yeah, I missed you’. And then - and then that was it.”

26. MA agreed in cross-examination that it was only when she met “Nerissa” (the Crown prosecutor) for the criminal trial that she recalled the detail of the incident in the bathroom, which she agreed had occurred 42-43 years previously. She said that she did not contact Senior Constable Brian Rice, the officer in charge of the investigation, about it because she was questioning whether it was her first memory of the applicant’s offending and wanted to be sure that it was actually the first time that he had sexually assaulted her.

27. VB gave evidence that she, her husband and her parents went to Singapore for a fortnight in about 1980. MA stayed with JC’s family, AB stayed at the applicant’s home and their third child, PB, stayed at a friend’s house nearby. However, PB, became emotional and missed his siblings so he went to stay with the applicant and his family. VB confirmed that MA came with the applicant to the airport to meet them. Her evidence was:

“When we got into the luggage area or back in to the airport, [MA] saw us, came running up to us crying, was very upset, and which upset me, and I just said to her, ‘Darling, what's wrong? What's wrong?’, and she said, ‘Mummy’. I said, ‘Did you miss us?’, and she said, ‘Yes,’ and - and yeah, she was very emotional.”

Count 1 – the applicant allegedly putting JC’s hands on his penis

28. When JC was “very young”, “[a]bout four”, there was a gathering at the applicant’s house with the local families. Because it was late, JC and MA had gone to lie down in bed in the master bedroom. Their brothers were in the lounge room watching cricket on television, from which JC inferred that it was summertime. The adults were playing cards in the kitchen, which was at the back of the house, at the furthest point from the master bedroom. There was a sliding door from the kitchen, which the applicant opened when he came to see JC and MA in the master bedroom.

29. JC and MA were talking to each other when the applicant came into the room. JC thought that he was drunk because he smelled of beer.

30. JC gave the following evidence of what then occurred:

“He walked to the far side of the room where [MA] was and told me to go to sleep and grabbed [MA]’s hands and put it down the front of his pants. And then he walked around to the other side of the bed near me and done the same thing, grabbed my hand and put it down his pants.

And as – he then left and as he walked out, the room, told us to, ‘Shut up,’ and walked out and left the room.”

31. At the time, JC appreciated that she touched “something big” but did not know that what she touched was the applicant’s penis. However, by the time she gave evidence at the trial, she appreciated that what she had touched was the applicant’s penis. JC estimated that she touched the applicant’s penis for “[a] minute or two”.

32. According to JC, after the applicant left the room, MA “cuddled [her] and told [her] that it was going to be all right” and that she was going to protect her. In cross-examination, JC agreed that she had not mentioned this conversation with MA in her police statement made on 15 July 2020 (see below) but said that it had happened.

33. Although MA’s evidence was that she could not recall anything specific that the applicant did to JC, she recalled:

“So there’s lots of occasions. One in particular is a card night that we had fallen asleep in Ken and Debbie’s bed, [JC] and I, I remember him coming in and telling [JC] to roll over. And then he come over to my side of the bed and put his hands down my pants.”

MA’s complaint about count 1

34. According to JC, the day after the conduct that comprised count 1 occurred, MA told her parents about what had happened and MA “got into trouble”. Because JC was younger than MA and loved her, JC did not want to get MA into trouble so she did not say anything.

35. When asked how she found out that MA had complained to her parents, JC said in evidence:

“Well, my brothers had told me to begin with, and then it was sort of common knowledge like with my dad knew, and over the years, even, it used to be spoken about a lot, like even with my grandparents, and my – I don’t know how it would be brought up in conversation, but it would be brought up and even my dad would say, ‘Oh, even [MA] had said that, and she’d gotten into trouble over it'.”

36. In cross-examination, JC agreed that she had visited MA within a couple of days of the incident comprising count 1 and that MA’s parents had told her that MA was not allowed to play with her for a couple of days as punishment for telling them about what the applicant had done. JC also said in her police statement that when she discussed the matter with her brother, MC, in around 2015-2016, he had told her that MA had been slapped across the face as punishment and that he had seen red marks on her face (see below regarding JC’s complaint to MC).

37. As a result of MA getting into trouble for telling her parents about the applicant’s conduct, JC did not tell MA of the applicant’s further offending against her because she did not want to get MA into trouble again.

38. Despite this, MA said in evidence:

“I knew, obviously, things were happening to me, and I knew things were happening to [JC], but I can’t recall exactly what was happening to her. All I know is that, yeah, I focused on myself basically, and – and – but I did know things were happening to her. We quite often spoke about it.”

39. VB denied that MA had ever told her that she had been touched by the applicant or that she had slapped MA or prevented JC from playing with her as a consequence of any disclosure.

Following the conduct alleged to comprise count 1

40. Following that incident, both JC and MA tried to avoid the applicant. JC’s evidence was that if she was ever near him “[s]omething would happen”. Sometimes the applicant would say to her “come and give Uncle Ken a hug”.

41. MA said that after the conduct comprising count 1 (and the associated conduct with respect to MA), there was a change in how she and JC regarded the applicant. MA gave evidence as follows:

“So he was – he was – we were all – he – we called him uncle. He was – we thought, you know, he was everyone’s friend, and all us kids called him uncle and aunty, but during this time, we were all – once he started assaulting us, we were all – [JC] and I in particular were – were afraid of him, petrified of him.”

42. The applicant usually worked in his garage with the roller door open, which gave him a view of the street. MA felt that he was “waiting” there for her. JC knew when he was at home because he had a panel van for his work which he parked on the street outside his house. As JC and MA had to pass the applicant’s house to visit each other or, in JC’s case, when walking home from primary school, they would cut through a neighbour’s property and duck behind the rose bushes so that the applicant would not be able to see them.

43. JC described what she and MA used to do to avoid the applicant as follows:

“But between the two of us, we knew that we knew that when he was home, that we had to cut through the neighbour’s yard, and we did things to avoid him. And she even – like, as a – her being older, and she’s always been very protective of me, would like, she probably was the one who’d come up with that idea, and said to me, ‘[J], from now on, we have to make sure that we cut across the yard, and we, you know, when the car’s out,’ and just do – like look after ourselves.”

44. MA also said in evidence:

“… I used to run across the garden edge, and then up the right, and then jump onto the stair ledge, and run up to the front door. So that was one way. Another way I used – I used to hug the fence line on the opposite – opposite side of the road. Well, you can see me as clear as day, but I just thought that was protection. That fence line to my neighbour’s house, so, yeah, I just hugged that, thinking he didn’t see - he wouldn’t see me. But it just seems like he saw me all the time.”

45. MA also recalled an occasion when she was at JC’s house and their parents were playing cards with the applicant and his wife. MA gave the following evidence:

“We were in her bed. We’d been put to bed, sleeping head to toe, and she’s – and both of us have said, ‘Well, what about Uncle Ken? What’s he – what’s he going to do?’

Anyway, so we decided to hop under her bed in order to protect ourselves and sleep under there, and then her mother came in the room and said, ‘What are you girls doing? Get out from under there,’ and then I just remember hopping back into bed and – and then that’s it, yeah, but – but we kind – we knew each other – something was happening with each other.”

Other conduct concerning the applicant which was relied on as tendency evidence

46. MC recalled an occasion, when he was about 9 or 10 (and JC was about 5 or 6), when his family and MA’s family were at the applicant’s home. He said:

“Well, the boys were sitting in one of the bedrooms and just playing a board game or something, and we all decided that we’d go outside and play spotlight or hide and seek or something like that and we decided – I decided I’d go and find the girls to invite them to come and play, and I thought they were in the bedroom next to us, so I walked down the hall and they weren’t there and – and then I heard voices coming out of [the applicant and his wife’s] bedroom and the door wasn’t quite closed, so I just walked in there and I found [the applicant] in bed with [JC] and [MA] on either side of him, and [the applicant] said to me, ‘Uncle Ken is having some girl time at the moment and I’ll be out there to spend some time with the boys later.’ So I just turned around and I didn’t think much more of it and went and played with the boys.”

Count 2 – the applicant’s alleged indecent touching of JC outside her clothing in his garage

47. When JC was “[p]robably about eight, ten” and still in primary school, she was going home one day from the backyard of the applicant’s house and went through the laundry door which led to the garage to leave. The applicant blocked her way and ran his hand from her vagina to the top of her head. JC said this kind of conduct happened on a number of occasions from the time JC was six until the time she moved out of home when she was 14.

Count 3 – the applicant’s alleged indecent touching of JC outside her clothing in his garage

48. On another occasion, when JC was between about eight and ten years’ old and still in primary school, JC was taking the same route from the laundry through the garage to the driveway to go home from the applicant’s house. The applicant said to her, “come and give me a hug”. She said in evidence that she did not realise that the applicant was there or she would have taken a different route. While she was standing there, he ran his hand from her vagina to her head while he hugged her with his other arm.

49. JC did not make a complaint about this conduct at the time.

Count 4 – the applicant’s alleged digital penetration of MA in his living room

50. MA gave evidence of an incident when she was about eight or nine years old and on the lounge in the lounge room at the applicant’s house and the adults were in the kitchen playing cards:

“There was another occasion where I didn’t want it to happen. And then I’ve put myself asleep in the lounge room, on the lounge. And the lounge was situated right beside a sliding door. And the adults were behind that sliding door. And I put myself there to protect myself.

But then he’s proceeded to come around from the other side of the room, into the lounge room, and put his hand – and I was, I remember, I was facing the lounge room wall. And he’s asked me to roll over and face him. And then he’s put his hands down my pants. And, yeah, and that’s – and I remember him walking away after that.”

51. MA also gave the following evidence:

“… [The applicant]’s walked in from the hallway through the foyer and then walked over to me. I was facing the wall, and then he has asked me to roll over and face him, and I remember smelling his breath strongly of alcohol and cigarettes, and then he has put his hands down my pants, and then I think somebody said something like, ‘Where's Ken?’, or something, and then he’s got up and walked – walked back down the hallway and back. He didn’t go through that sliding door. He went back around the hallway.”

52. When the applicant put his hands down her pants, he inserted his fingers into MA’s vagina for “[m]aybe 30 seconds to a minute … [l]ong enough to hurt”. She rolled over and cried after the applicant left.

53. MA agreed in cross-examination that when the conduct occurred the applicant was no more than about two metres away from where the other adults were sitting around a table playing cards. She described his conduct as “[v]ery brazen”.

Count 5 – the applicant’s alleged digital penetration of MA at the table

54. One year, the families gathered at the P’s family home for a Christmas party. It was a corner block and all the children were in the swimming pool which was effectively in their front yard. MA got out when it was getting dark. She still had her swimming costume on. There were two tables set up, one for the adults and the other for the children. The applicant was sitting at the head of the adults’ table.

55. MA’s evidence was:

“I remember him grabbing me as I walked past and he said something like, ‘I haven’t seen you all night. Come here and give me a hug,’ so he has grabbed me and then put – put me on his lap, and then he proceeded to put his hand up into my costumes and then into my vagina. I remember just sitting there. There were adults. Everyone was around. I remember looking directly straight ahead at one of the mothers and thinking, ‘Look what he’s doing to me’, but I was freezing – freezing.

He actually said at one stage, cause I was trying to squirm away – he said, ‘Sit still. You’ve got a bony bum,’ and then – yeah, and then he’s – cause I was squirming cause his fingers were inside of me. I then remember just running – him letting me go and just running and jumping in the swimming pool, bobbing up and down, facing the fence so nobody would see me crying, going under the water, coming back up, taking a breath, crying underwater. Yeah, that’s what I remember.”

56. MA confirmed that there was skin on skin contact as the applicant lifted her swimmers aside and “pushed his fingers inside [her]”. This lasted for “about three minutes … [i]t felt like three minutes … could have been shorter … could have been longer …”.

57. MA agreed that there was a woman who was sitting about 1-2 metres away from her when this occurred. She confirmed that despite the proximity of other people, nobody noticed what was going on.

Count 6 – the applicant allegedly putting his penis in MA’s mouth in the garage

58. When MA was about 10 or 11 years old, the applicant called her into his garage. Her evidence was:

“And as he’s turned around, his penis was out of his shorts. And he’s called me over. And then I don’t know what he actually said to me, but next minute I was – had my head on his penis, or my mouth on his penis with him holding my head. And that was – that was the first time I – I don't know how long I was for. I was in total shock. …

…

Q.   … did you consent to doing that act with him?

A.   No, I don’t think I was asked. So, no.

Q.   Did you want to do what was happening?

A.   No. No.”

59. MA gave evidence that similar conduct occurred frequently:

“Q.   Is this the only time this happened?

A.   No.

Q.   How often did it happen?

A.   It – it felt like every day, especially as I got older, because I used to have to walk past his house going to high school. It felt like he called me into that garage every day. I’m sure it wasn’t, but that’s what it felt like to me. I’d panic every time I saw his car there as I rounded the corner to walk home. Yep. So on another occasion, he’s called me in. He used to call me ‘Miss’. Everyone in the neighbourhood called me ‘Missy’ cause my brother could never say my name. So my name throughout the whole neighbourhood was ‘Missy’. Anyway – so it was – it would be like a ‘Miss – Miss – Missy – Missy’. And then it would be a ‘[M]’ in a – a real cranky – if I was avoiding him. But once that crankiness come out, I caved and would walk over and go in. …”

60. MA was asked about the applicant requiring her to perform acts of oral sexual intercourse with him in the following passage:

“Q.   And on that occasion, did he have his penis in your mouth?

A.   Yes. Yes.

Q.   So this happened how many times, do you think?

…

A.   I don’t - I don’t know exactly how many times I performed it. But, like, it – it felt like every day.

Q.   And you never consented or agreed to do that.

A.   No. Not with him holding my head, no.”

(Emphasis added to indicate the portion relied upon by the applicant’s counsel on appeal.)

61. In cross-examination, the applicant’s trial counsel put the conduct which comprised count 6 to MA for the purpose of putting his case to her that it did not happen. The following exchange occurred:

“Q.   And you just say that he just forced you to perform oral sex on him in a garage during the daytime with people going past.

A.   Yes. Yes.

Q.   You see, I want to suggest to you, [MA], that that just did not happen and it never occurred with Mr MacDonald in relation to this count in the garage.

A.   It happened.”

Count 7 – the applicant allegedly putting his penis in MA’s mouth and telling her to suck it

62. MA gave evidence of a different occasion on which the applicant “grabbed [her] head and told [her] to suck his penis like a straw.” On that occasion there was no ejaculation.

63. As with respect to count 6, the applicant’s trial counsel put the conduct which comprised count 7 to MA for the purposes of putting his case to her that it did not happen. The following exchange occurred:

“Q.   There was a further count, as I said, in relation to the garage, and you say that there was an occasion when he had forced his penis into your mouth and told you to suck it like a straw.

A.   That’s right. Yes.

Q.   And again, I’m suggesting to you, [MA], that that just did not happen. Mr MacDonald never forced you to perform fellatio upon him.

A.   He did.”

Count 8 – the applicant allegedly putting his penis in MA’s mouth and MA biting it

64. MA gave evidence of another occasion (separate from counts 6 and 7) when the applicant pushed his penis into her mouth. She said he “got [her], grabbed [her] head, held [her] head so hard that…[she] accidentally bit him.” He said, “[n]ever use your teeth”, and “I told you to suck it like a straw … Now continue to suck it like a straw”. MA did not know how long this lasted.

65. The applicant’s trial counsel put count 8 to MA in the following terms:

“Q.   It’s a further count in the garage that you maintain that you were forced to perform fellatio upon him and you say that your head was grabbed so tightly and forced down on to his penis that it caused you to gag and caused you to bite his penis.

A.   That’s right.

Q.   And you say that he had said to you, ‘Never use your teeth,’ and then later said, ‘Suck it like a straw.’

A.   That’s right.

Q.   Again, I want to suggest to you, [MA], that just did not happen.

A.   It did.”

Count 9 – the applicant’s alleged digital penetration of JC while she was in her swimming costume in his garage

66. After dinner one evening when JC was about eight years old, JC had been swimming in the pool at MA’s home. She heard her mother calling her to come home. She ignored her the first couple of times but by the third time, it was starting to get dark and she realised that she had to go. On her way home, she saw her father in the applicant’s garage, talking to him.

67. Because her father was there, she ran across to join him in the garage and stood there in her swimming costume while her father was talking to the applicant. JC said that she did not even have a towel with her because she thought that she “was going to go home and jump in the shower straight away”. JC was excited to see her father because she did not see much of him because he worked as a coal miner and did night shifts, which required him to sleep during the day. She also concluded that she would not get into trouble with her mother for being late home if she was with her father. JC estimated that she was in the garage with her father and the applicant for about ten minutes.

68. JC gave the following evidence of what occurred:

“I was standing there with my dad, and they were having a conversation. And we went to leave. And as we went to – I was holding my dad’s hand. And as we went to walk out of the garage, [the applicant]’s swung his hand from behind me and towards my – my bottom sort of thing. And I was sort of standing there with my wet costume on and I – I felt pain – I don’t know why. I wasn’t sure from why at the time. And my legs were just sort of to my feet. We just – I couldn’t move for a second.”

(Emphasis added.)

69. JC also gave the following evidence:

“His finger had like gone through inside me with, like – through my costumes, but yeah, it had definitely, yeah, gone inside me.”

70. This went on for “a minute or two”; it was “momentary” and happened “very quickly”. JC also said she felt pain in her stomach and “sort of froze”. Neither she nor the applicant said anything.

71. JC’s evidence was that she did not think that her father saw what had happened because if he had they would not have gone home straight away. She said that she “didn't even realise that it was happening until it had happened”. There was no discussion between her and her father about what had occurred.

72. After JC went home, she had a shower. About 20-30 minutes later, she went to the toilet and noticed blood in the crotch of her underpants, “about the size of a 20 cent piece”. At that stage she was not aware that “girls bled” and “was frightened”. She told her mother, who changed her before putting her to bed. JC’s evidence was:

“And I didn’t think anything of it. I thought it was okay.”

73. In the morning, JC was getting ready for school when her mother told her that she was not going to school because she was going to the doctor. When they were in the doctor’s consultation room, JC’s mother pulled out the underpants which had blood on them and showed the doctor who responded:

“Oh, don’t worry about it. She’s probably just shoved something there.”

74. When JC returned home, she realised that the blood on her underpants was the consequence of what the applicant had done to her the previous evening when he touched her and she felt pain. Her evidence was:

“And I remember sitting there thinking, ‘Shove something where?’ Where – where was there something to do that? And they didn’t – she didn’t talk to me. She didn’t look at me. She didn’t. And Mum and the doctor just kept talking. And we went home, and it was like there was – nothing had happened. But I had realised that there was – that’s why – I’d started bleeding. Like that’s why there was blood on my underpants. And that I’d felt the pain the night before. But yes, I was standing there with my dad when that happened.”

(Emphasis added.)

75. JC did not tell her mother at the time that the applicant had caused her to suffer pain and to bleed by putting his finger in her.

76. LC’s evidence was that there was no occasion when JC was a child when she noticed blood on her daughter’s underpants or when she had occasion to take JC’s underpants to a doctor.

Count 10 – the applicant allegedly putting his penis in MA’s mouth and his wife walking in

77. MA recalled that when she was about 12 years old and attending Bulli High School, she was performing oral sex on the applicant when his wife, DC, walked into the garage from the laundry. The applicant pushed MA away and turned his back to her. The applicant’s wife asked MA, “[w]hat are you doing here, miss?”. MA picked up her school bag and went home. The applicant’s wife did not chase MA or ask her anything. MA could not say what, if anything, DC saw.

78. DC was asked about this allegation in the following exchange:

“Q.    Do you ever recall a situation where you have come down into the laundry and stepped into laundry and observed your husband there with [MA]?

A.    No, I cannot recall that at all.

Q.    You don’t remember a situation of coming down there and saying to her ‘What are you doing here, missy?’

A.    They’re the words that I would use. But I don’t remember doing that. Missy [MA] could have come across. I’m not saying she didn’t. But I don’t remember it.

Q.    Did you ever observe her performing fellatio on your ex-husband in that garage when you came down through the laundry?

A.    No. If I ever saw – no.”

Count 11 – the applicant’s alleged digital penetration of MA and threat to have sex with her

MA’s evidence of count 11

79. MA also gave evidence of an occasion when she was about 11 or 12 years old when she, JC and DG, the daughter of one of the other families in the group, were in the applicant’s master bedroom. The applicant came in and said to JC and DG, “Roll over, girls, I need to have a word with [MA].” The applicant approached the side of the bed where MA was (which was the furthest away from the door) and put his hands down her pants and said, “I’m going to have sex with you soon” before walking out of the room. MA could smell alcohol and cigarettes on him. Unlike with respect to count 4, MA was not asked about, and did not give evidence of, digital penetration occurring on the occasion of count 11.

80. MA was “absolutely petrified”. MA thought that she talked about what the applicant had said to DG and JC, who told her that she needed to tell her mother. MA said that she was too scared to sleep that night.

81. MA gave evidence of a subsequent occasion when she and the applicant were in his garage. He stuck her head through the manhole in the garage, which led to a cavity where there was a softened, flat area between two piers and said to her, “That’s where I’m going to have sex with you one day”.

DG’s evidence of count 11

82. DG’s evidence as to what occurred is as follows:

“… we were in bed. [MA] was there. I remember – in terms of where I was laying, I remember I was on – the closest to the door. I was – I was lying on the edge. [MA] was next to me. I said at the time to the police that I wasn't 100% sure of the third person, but I’m assuming it was [JC] because when I think about those nights, it was all the boys, and aside from, like, my sister or maybe [L], there wasn't really any other – other girls, so anyway, so I definitely remember [MA]. It was likely [JC], but I definitely remember [MA], and then I just remember [the applicant] coming into the room and standing there, and that’s kind of, like, all I remember, but I guess – like, that was a clear memory.

…

I don’t know whether I was always awake or I woke up, but I just remember lying there and – and him standing there …”

83. DG said that the lights were off and the door was “probably … just ajar”. She estimated that she was about 10 years old at the time and that MA was slightly younger and a year or two below her at school. DG drew a diagram (Exhibit K) which depicted the positions of each of the four people involved.

84. DG said in cross-examination:

“… there was no conversation, and I don’t recall [the applicant] lifting the covers on me, but I do remember him standing there and hovering a bit …”

MA’s contemporaneous complaint to her mother the following morning

85. MA’s evidence was that as soon as her mother came to pick her up, she said, “Mum, Uncle Ken said he is going to have sex with me soon.” According to MA, her mother’s response was “Oh, don’t be silly.” Nothing further was said between them. MA said that she realised from her mother’s response that she had to deal with the applicant’s conduct towards her on her own. Her principal strategy was to try “to avoid him in as many ways as possible” but she was often unable to. MA also gave evidence that there was a strong friendship between her mother and the applicant’s wife and her brother, AB, and one of the applicant’s sons, CM, and she “[d]idn’t want to break the friendships up”. MA expanded on this evidence in re-examination when she said:

“Well, it was the friendships that my – everyone had with each other. I just didn’t want any conflict, any – any friendships broken, unfortunately, but that’s just what I thought. I didn’t – I was out to protect them, not me … so I was just pleasing my mum and dad, basically, to keep the peace.”

86. VB’s evidence was that she had “no recollection … whatsoever” of telling MA not to be silly or that “Uncle Ken wouldn’t do that”. VB said in cross-examination that if MA had said anything of that kind to her, she would have “go[ne] off [her] brain” and would “[a]bsolutely” and “undoubtedly” have raised it with the applicant’s wife.

87. The following exchange occurred later in VB’s cross-examination:

“Q.    … If your daughter had said to you, ‘Mum, Uncle Ken’s just told me that he wants – that he’s going to have sex with me soon,’ you wouldn’t have answered, ‘Don’t’ - your answer to her wouldn’t have been, ‘Don’t be silly,’ would it?

A.    I wouldn’t say it wasn’t. As I said, I don’t recall it. But when a child says something like that to you, I mean, your first reaction is, ‘Oh no, he wouldn’t do that’. And I wouldn’t expect that he would do that. I mean, we were very close, and for – the fact of the matter is I would not lay a hand on his children, and I expected him never to lay a hand on my child.”

Count 12 – the applicant allegedly grabbing JC’s breast

88. When JC was in Year 7 or Year 8 at Bulli High School, her mother gave her a white linen skirt and an orange top for her 13^th or 14^th birthday, which was in about 1988 or 1989. After school one day, she put the top and skirt on and went to MA’s place to show her the new outfit. When JC heard her mother calling her for dinner, she went to run across her neighbour’s front yard to go home when the applicant saw her across the road. He “yelled out” and “told [her] to come over and give him a hug for [her] birthday”. JC’s evidence was:

“… I remember standing there saying, ‘No, no, mum’s calling me. I’ve got to go. I have to go home. Mum’s calling me for dinner.’ And he had come out, walked out of the garage then and had said, ‘Come over’, you know, ‘Your Aunty Deb’s got a present for you’, you know, ‘Come over and’, you know, ‘it’s your birthday.’

And so I walked across the road and as I walked across the road, he’s gone to give me a hug for my birthday and grabbed my breast, but he had grease all over his hand, and yeah, there was a – he left a dirty – grease hand print on my breast of this shirt – this top, and when I went home, I walked in and mum was serving dinner up, and she looked at me and said, ‘What's that?’ I said, ‘That’s what Ken’s done’, because he, you know, Ken – Ken’s did that with - and she said, ‘Give it here’. And she was in a bit of a fluster serving dinner up, and she’s gone into the laundry and tried to clean it, and it wouldn’t come out. She couldn’t get it out. So she threw my – my top away – I had to throw my top away and replace it. She had – s the night of my birthday, I’d only got the top in the morning, and she actually had to throw it away and buy me a new one. It was within a couple of days, and she bought me a new top. But yeah, it’s – had to get it thrown out.”

89. JC’s evidence was that there was no further discussion with her mother about her saying that it was the applicant who had done it. Her evidence was also that she was prompted to disclose the applicant’s conduct on this occasion as she was a bit older when this count occurred, and she found it frustrating not to be able to tell anyone what had happened when she was younger.

90. JC agreed in cross-examination that she had said in her police statement that her mother had ignored her and did not listen to what she had said. She said in evidence:

“Well, she did ignore me. She didn’t listen. She didn’t listen to what I said.”

91. LC did not recall the incident with the top or that JC had said anything to implicate the applicant in causing a mark on the top. LC’s evidence was:

“I can’t, I can’t [recall it], but that’s not to say it didn’t happen. I just can’t recall it.”

92. The following exchange occurred in LC’s cross-examination:

“Q.    And if she had said to you, if she had come home with a grease mark over her breast and she’d said to you that [the applicant] had done this to me, would have that concerned you?

A.    Well, I probably would have thought he’d brushed against her and not thought anything sinister of it because you didn’t think those things in those days.”

The change in JC and the effect of the applicant’s conduct on her relationships, including with MA

93. JC and MA remained close until MA started high school at the age of about 13. At some later stage, JC became troubled. In 1989, while JC was about 13 and still living at home, JC was given counselling at the suggestion of “the Court” and her parents also went to a separate counsellor.

94. LC recalled that her relationship with JC became “more challenging … mainly from about 13 onwards”. LC said:

“Well she was just being very, not wanting to do what we’d asked her to do, wanting to do more grown-up things that we felt were more suitable to children, older, or teenagers older than herself. She was rebellious. She decided she didn’t want to go to school. And she – If she did go, she’d wag school. She’d walk in the front gate, and walk straight out the back gate, even though our best efforts were to get her there. That was the main thing, being quite rebellious.”

95. By about the end of 1989, when JC had turned 14, she left home and, according to MA, they “grew apart”. JC had a child at 15. MA recalled going to see JC with her first child but did not recall seeing her again “until recently” although their mothers remained close.

96. JC recalled that when she came home in the two or three years after moving out, she would see MA. MA, who already had her driver’s licence, told JC that she would teach her to drive and took her to Thirroul Beach for her first driving lesson. However from the time JC was about 17, she did not see MA again. According to JC, her own mother and MA’s mother remain friends.

Subsequent interactions between the applicant and MA

97. In about 2001, MA’s parents and the applicant and his wife visited MA, who was living with her husband, GA, in the United Kingdom. At the time, MA was pregnant with her first child. When asked how she interacted with the applicant during the period of about a week while he and his wife were staying with her, MA said:

“… I remember greeting them at the airport, obviously, hugging everyone, and I just remembered Ken and I just nodded, and that was it.”

98. MA gave evidence that during this visit, the applicant was “standoffish” and “very, very quiet”, which was in contrast with his usual behaviour which was “normally quite loud and boisterous and arrogant”. MA’s first child was born while her parents and the applicant and his wife were visiting. After the birth, MA was careful to prevent contact between the applicant and her child. She said:

“My focus was my baby. I wasn’t going to let my baby near him as well. I had full intentions not – not to let him touch her, not to let him hold her. He was not going near her. ... I didn’t feed her near him. I made sure I fed her up in my bedroom away from everyone, not in front of him, and yeah, she was my focus.”

99. MA said that the applicant and his wife had also attended her engagement party, her 21st birthday and her wedding (by which time she had already told GA of the applicant’s sexual assault of her as set out below). MA explained that she wanted the applicant’s wife at these important events. As a result of MA’s disclosures to GA, GA “didn’t feel comfortable having [the applicant] there”.

100. The applicant and his wife separated in about 2006 and divorced in December 2007. VB gave evidence that the applicant’s wife had confided in her previously that once their children were old enough she was going to leave the applicant because of his drinking.

JC’s complaints about the applicant’s conduct

JC’s complaint to her mother

JC’s evidence

101. Apart from her contemporaneous complaint about the conduct comprising count 12, JC discussed the applicant’s conduct with her mother a few years later in the following circumstances, as described in JC’s evidence:

“I think I was about 16, and I’d already moved out of home, and I used to go and stay there one night of a week, and I was – before bed, we were sitting out on the verandah, and I was having a cigarette and mum actually brought it up and had asked me what had gone on over the years when I was younger, and had said things, what had actually happened. She wanted to have a conversation about it, then.”

102. JC said, in effect, that she told her mother what she had said in her evidence in chief. According to JC, her mother’s response was:

“That was putrid, but like it had happened, and there was no point in, you know, doing anything about it now. There’s nothing – you know, it’s not going to make it not have happened. It’s already – it’s happened, and that, yeah, that it was just a horrible thing to happen but, you know, there’s no point in going on about it because it had happened, and nothing could change that it had happened.”

103. JC’s evidence was that her mother did not tell her father about what she had told her about the applicant’s conduct.

LC’s evidence

104. LC’s recollection was that the first time JC had told her that the applicant had interfered with her was in 2015 or 2016. She gave evidence that she did not recall an earlier conversation when JC was about 15 or 16.

JC’s complaint to her grandmother when she was 22 years old

105. When JC was about 22 years old and had a 12-month old daughter, she visited her maternal grandmother, who told her that JC’s mother had asked her to talk to JC about the alleged sexual assaults because at that time JC and her mother “didn’t get along that well” and JC’s mother thought that JC might be more comfortable talking to her grandmother about them.

JC’s complaint to her brother, MC, in about 2015 or 2016

JC’s evidence

106. In about 2015 or 2016, JC and MC were both living in Melbourne. She went to see him to tell him about the alleged sexual assaults because she wanted MC to tell their father, who, as far as JC was aware, did not know about them. It was on this occasion that MC told JC that he had seen the red marks on MA’s face from being slapped by her parents for what she had said about the applicant’s conduct that comprised count 1. JC’s recollection was that MC was so upset by the recollection that he was crying as he recounted it to her.

MC’s evidence

107. MC recalled an occasion around 2014 or 2015 when JC came to visit him in Victoria. He said:

“I just got home from work one day and to find [JC] sitting on the front doorstep like she’d been waiting for me to get home. She was quite upset and emotional and looking very dirty, so I took her inside and gave her a flannelette shirt and some clean tracksuit pants and put her in the shower. And yeah, she was very upset, and we sat down and we talked. And she stayed with me for the week actually.”

108. MC recalled that JC told him that when they were children, the applicant “used to touch her and [MA] up … in the inappropriate areas”. JC was very emotional when she told him. MC’s reaction was:

“That was a shock to me, and I did say, it’s not like I don’t believe you, but I couldn’t imagine that that happened. I just – that never occurred to me that something like that would have happened.”

JC’s complaint to LC in 2015 or 2016

109. LC gave evidence that, in about 2015 or 2016, JC came home and had a discussion with her at the back of their house while JC’s father was inside the house. JC told LC that the applicant had interfered with her when she was younger. LC could not recall any response she made to the disclosure and described her own reaction as follows:

“I was so shocked and so taken aback that, you know, I – I didn’t really know what to say to her.”

110. LC said that she told her husband what JC had said but that she did not speak to JC about the matter again until about 2020 when JC was in prison.

JC’s complaint to a parole officer and intelligence officer at Emu Plains in 2020

JC’s evidence

111. In about July 2020, JC was in custody at Emu Plains Correctional Facility where she was interviewed by a parole officer, Chris Molnar, and an “intelligence officer”, Pamela Jones. JC told them that she wanted to move back to Thirroul as her father was very ill and she wanted to see him before he died (he died in August 2020, three days after her release). In the course of the interview, JC was asked why she had left home when she was a teenager. JC’s evidence was as follows:

“Well, they were asking me questions about why I had left home. And I was baffled by that. I didn’t know what relevance that had to do with anything at all. And how they even had knowledge of any – any of that. And I told them that the – like, I moved out of home. I was acting out. I was trying to get in – I was sort of trying to get in trouble. I was trying to get grounded, so that I didn’t have to babysit. And they – they said to me that they – my – my mum had actually mentioned to them that there – I’d make allegations that – to her about the neighbour. So they sort of railroaded me in a room. And – and yeah, I actually told them. They were the first person in authority that I – I’d told.”

112. After JC had told the Emu Plains’ officers about the applicant’s conduct, they “impressed upon [her] that the right thing to do [was to report it to the police] and that [she] should do the right thing”.

Ms Jones’ evidence

113. Ms Jones spoke to JC when she was in the Emu Plains Correctional Facility about why she wanted to go home when she did not appear to have a good relationship with her family (although her father was dying) instead of going to drug rehabilitation. It was in this context that JC told Ms Jones about the applicant’s conduct. Ms Jones said in evidence:

“That’s when she started telling the story about why she wasn’t close to her family and historic childhood sexual abuse by a neighbour. Sorry, I’m going to get upset. I can’t get that picture out of my head of her breaking down, telling us the story. And she didn’t go into graphics, and I - I certainly didn’t draw her out about particulars, but things like sneaking past this man’s house, and there was apparently another young girl who was a friend of hers involved as well. Both of them were being sexually abused. She must have lived close to [JC] because they used to come up with ways to get passed this guy’s house without him seeing them and calling them over, which was what he used to do, apparently. Yeah, it was pretty graphic.

…

Well, that she and her friend were both sexually abused, that apparently the three families used to do barbecues during the football season and would go to one of the three houses to watch the football, and the kids would be put to bed in whoever’s house they were at at the time, and this guy would come and get them. It was her turn in whatever bedroom they were in at the time.

Like I said, I did not want to draw her out. I was - I’m not trained to deal with that. She was upset enough. She actually needed psychology help. I – I organised that after the interview.

…

To be honest with you, you - you hear lots of stories in jail, but it’s very rare for the girls to disclose that sort of stuff to you. She broke down. She actually gave us a demonstration of how her and her friend would get down on the ground to crawl passed his house, and, I mean, she’s the office crawling around the desk. I believed every word she said. It was so upsetting. I’m pretty tough, but I walked out of that office, went into my own office and burst out crying, before I went and saw the psych. Yeah, it was pretty upsetting.”

114. Ms Jones asked JC whether she had ever told her mother about what had happened, to which JC said that she had told her mother when she was about 16 and her mother said, “[w]e’re not talking about that.”.

115. Ms Jones encouraged JC to “sleep on it” to think about whether she wanted to make a report to police. The following day, “[JC] came and knocked on [her] door and asked [her] if [she] would call the police”.

LC’s evidence

116. LC recalled that Chris Molnar, the parole officer, rang her to tell her about the police report. LC’s evidence was:

“… the parole officer said to me, ‘Do you know [JC]’s going to be seeing the detectives,’ and I said, ‘What about?’ But straight away I sort of remembered that conversation, and then the parole officer told me what it was related to.”

JC’s report to police

117. On 15 July 2020, the day after her interview with Ms Jones and her parole officer, JC made a statement to police. By that time she had not seen MA for about twenty years.

MA’s complaints about the applicant’s conduct

MA’s complaint to her mother

118. MA’s contemporaneous complaint to her mother that the applicant had told her that he would have sex with her “soon” has been addressed above.

MA’s complaints to LW

MA’s evidence

119. MA had been friends with LW since she was about four or five, after they met at pre-school. They also attended the same primary school and high school.

120. MA was asked in her evidence-in-chief when the applicant’s conduct towards her came to an end. She answered:

“I remember telling my girlfriend [LW] at the time. We were in her bedroom and just saying that ‘Ken’s been making me do this, making me give him head,’ and – and she said, ‘Oh, my God. That’s so bad. You need to tell someone,’ and in the end, I just went, ‘No, I can’t tell anybody,’ and she said, ‘Well, you just got to be’ – you know, just, like, ‘I just can’t believe that you’re not telling anyone,’ and in the end, after our discussion, I just said to myself that’s – like, it’s – it is so wrong. I’m – this is really wrong.”

121. This conversation with LW took place when MA was about 12 or 13 years old and MA had to walk past the applicant’s house to go to LW’s house.

122. MA gave the following evidence of the change in her behaviour towards the applicant after the conversation with LW:

“Anyway, and then I just had the courage to just walk past his house one day. Did it again the next day after him calling me constantly going, ‘Miss, Miss. [M],’ like, getting cranky at me, and yeah, and then, so I think I did it on one or two occasions and I went, ‘oh my God.’

He didn’t follow me. He didn’t chase me. He didn’t follow me to my house and say anything and I – and then that day I just realised he’s – he – he won’t chase you, cause – cause he knows what he’s doing is wrong. He’s not going to come and say, ‘You didn’t come over to my house to do this to me,’ so yeah, so I just continued – continued to be strong and – and got through it.”

LW’s evidence about MA’s complaint to her

123. LW’s recollection of the conversation which had happened in her bedroom was that it had happened in about 1987 when she and MA were about 14. LW’s evidence was:

“[MA] told me that [the applicant] had forced her to have oral sex. She didn’t use that word. She used, like, ‘head job’. She told me that, yeah, he used to force her to – he’s forced her to suck his cock. Yeah, I just remember her telling me how – how she thought it was really – how gross it was and how it made her gag. But, yeah, that’s – I remember that quite – quite vividly.

…

I just remember her - well, I – I said, ‘We’ve got to tell’. I remember talking about going to tell her mum, and I can’t remember if it was then that I said, ‘You’ve got to tell your mum,’ or if it was after, but I remember vividly that her mum – like, her mum said, ‘No, don’t’ - like, yeah, ‘Just stay away from him. Don’t be silly’. I remember something like that. I remember, like, ‘Yeah, don’t be silly about it’.”

LW’s evidence about MA’s behaviour when passing the applicant’s garage

124. LW recalled that when she and MA used to walk past the applicant’s garage:

“He used to call out quite a lot. I just remember as we got older that [MA] would be – like she’d yell – he’d yell out and she used to say, ‘Just ignore – just ignore him,’ or at times she got quite angry and would tell him to F off or, you know, nick off or just go away but that’s probably when we got a bit older.”

125. LW recalled that the applicant had called out to indicate that he wanted them to come to his place. She confirmed that she and MA would have been about 14 years old when MA told the applicant to “F-off”. When they were younger, say about 12 years, LW had gone to the applicant’s garage with MA and seen “lots of pornographic photos on the wall”.

The incident in the bedroom in the applicant’s house after MA had complained to LW about his conduct

126. Sometime after MA’s disclosure to LW, MA and LW were babysitting the applicant’s children and were sleeping the night at his house in two single beds. MA agreed that the babysitting was a “one-off occasion”. They were each wearing pyjamas. The applicant came into the room and MA told LW to pretend to be asleep. The applicant lifted the blankets off each of the beds but did not touch either of the girls. LW gave evidence to similar effect except that her recollection was that she only had a sheet over her because it was summer.

MA’s complaint to GA

127. When MA was 17, she commenced a relationship with GA, a boy at her school. Her evidence was:

“… there was a moment where [GA] and I were intimate and he has held my head and I’ve freaked out, stopped, said, ‘Never ever do that again,’ and he’s, ‘What? What? What?’, and then, so I’ve said, ‘I was assaulted by Ken’, mentioned his name. ‘He did things to me like hold my head, so never ever hold my head,’ and – and then I explained, yeah, ‘He did – he did that to me,’ and I said, ‘It’s all been sorted, though. We don’t need to pursue this any further. It's all been sorted so we don’t talk about it.’”

128. This was the only conversation MA ever had with GA about what the applicant had done to her.

129. GA gave evidence about this incident and the exchange to the same effect. He recalled MA using the words “sexually abused” when referring to the applicant’s conduct and that MA told him that the applicant had told her to “suck it [his penis] like a lollipop”. GA observed that MA was very fond of the applicant’s wife but “wouldn’t go near [the applicant]”.

Subsequent discussions between MA and LW about the applicant’s conduct

130. On two occasions, when she was 20 and when she was 26, LW approached MA to persuade her to report the applicant’s conduct to the authorities. LW worked for community services and became a “mandatory reporter”. By this time, LW had forgotten the applicant’s name and was unable to report it herself. She asked MA to report the applicant but when she refused, LW asked her at least to give her the applicant’s name so that she could put something in a report. MA refused and told her that she did not want to talk about it. LW felt that “[MA] just wanted to bury it”. According to LW, MA said, “just forget it”. LW did not make further inquiries because she “respected [MA’s] decision not to go further”.

MA’s meeting with her parents and the subsequent meeting between MA’s parents and JC’s parents

MA’s evidence about the meetings

131. The only further discussion which MA had with anyone about the applicant’s conduct before she was approached by the police in relation to JC’s complaint about the applicant occurred after she became aware that JC had made the allegations.

132. VB phoned MA and told her that JC had made allegations against the applicant and asked MA whether it was true, to which MA answered, “100%”. A couple of days later, MA and her parents went to JC’s parents’ house. They spoke about the fact that JC had made allegations but not the content of the allegations. MA gave evidence that she remembered saying to the two sets of parents that this (the applicant’s sexual assaults of JC) could be the reason JC is the way she is because his conduct had affected JC in so many ways.

133. In re-examination, MA said:

“I didn’t say anything that he did to me. I never said what went on, but I just said to them, ‘You have to take this into consideration why [JC] is like she is. This could be the reason that she’s gone off the rails.’ [JC]’s father did say to me, ‘You have to remember what she’s done to us,’ but I said that this could be why. … I think – I think I did say this has – has happened to both of us.”

VB’s evidence about the meeting with MA and GA

134. VB said that in about 2019 or 2020, the following occurred:

“[JC’s mother] rang me and told me about [JC]. [JC], at this time, was in jail and was being seen by a counsellor and then rang me to say that the counsellor had rung her and had said that [JC] had been molested as a child by [the applicant] and she wanted to know if I knew anything about [MA] being molested because [JC] had told her that [MA] was molested by [the applicant] as well and I didn't know anything about it and I proceeded then after I spoke to [JC’s mother] to contact [MA] and [GA] and they came up that night to talk to me about it.”

135. Following this conversation, VB phoned MA as follows:

“The telephone conversation was – I just said to her, ‘[MA], what’s happening cause I’ve just heard that [JC] … was molested by [the applicant]’, and I said, ‘Did he ever touch you’, and she said, ‘Yes, he did’. And anyway, that’s when I just said to her, ‘Look, we need to talk about this, and her and [GA] came up that night.”

136. That evening, MA and GA visited MA’s parents at their new home in Woonona. VB’s evidence was:

“When [MA] came out, she was very upset. And I was upset, as well. I mean, we were just totally, absolutely – well, I was. Because – just had no clue whatsoever. And I just said to her – and gave her a hug and I said to her, ‘Darling, what’s happened? What – what – what happened?’ And she said, … ‘He – he would expose himself and make me touch him’. She said, ‘He used his finger on me so many times in the pool. Or he’d sit me on his lap’. And, you know, he would abuse her. And – yeah. I mean, this is a man that was a friend. And it just destroyed us. I mean, we just couldn't believe – I mean, if – if I’d have hurt his children, he’d have been onto me straightaway. And he did this to my daughter – destroyed her – her – her innocence.

…

I just said to her, ‘Why didn’t you ever tell me?’ And she said, ‘Mum, I did try to tell you once’. And she said, ‘Oh, don’t – you – you said to me, “Oh, don’t be silly – Uncle Ken wouldn’t do that”. And – yeah. And it was just really hard for me to understand, again, why? Why would you do that to a little seven-year-old little girl?”

137. VB described MA’s demeanour when they were having this discussion as follows:

“[MA] was very, very, very upset. And I can remember saying to her, ‘Why didn’t you – why didn’t you really make a point of it and – and really make me listen?’ And she said, ‘Mum, you and Aunty Deb were very, very close’. And she said, ‘You were really good buddies and friends’. And she said, ‘I didn’t want to hurt Aunty Deb’ …”

138. The following exchange occurred in VB’s cross-examination:

“Q.    You say that in all these years that you knew [the applicant], you never saw anything untoward or anything that gave you any suspicion in relation [to his conduct] towards the children?

A.    Well, that’s correct because I just didn’t ever expect that that would be something that would happen.”

GA’s evidence about the meeting between MA and her parents

139. GA recalled the meeting with MA and her parents and said that, prior to the meeting:

“It was probably about – a little over three years ago. I – I pretty much walked into home one afternoon and [MA] said, ‘Can you remember what I said about [the applicant],’ and I just went, ‘Yes,’ and then – I believe I then – it was about a phone call, that her mother had rang her and told her that [JC] had made an accusation in somewhere and [JC] said that [MA] had a story to tell.”

VB’s evidence about the meeting between her and her husband, MA and JC’s parents

140. According to VB, there was a meeting at JC’s parents’ home which JC’s parents, VB, MA’s father and MA attended. This meeting took place on the evening following the meeting between MA and her parents.

LC’s evidence about the meeting with MA and her parents

270. VB, MA’s mother, said it never happened that MA complained to her about the applicant when she was young and was slapped across the face.

271. MA said she did not remember telling her mother about the applicant and having her face slapped by her parents and not being allowed to play with JC for a couple of days.

272. Counts 2 and 3 were allegations of indecent assaults of JC.

273. In respect of count 2, JC said she was going home, and went through the laundry and garage of the applicant’s home. She said the applicant was in the garage and blocked her. He ran his hand from her vagina up to the top of her head over her clothes.

274. In respect of count 3 JC said the applicant did the same thing in the garage another time. He ran his hand over her body from her vagina to her head.

275. She said these events happened some time between when she was aged 6 to when she moved out of home. Later in her evidence she said she was aged about eight or 10 when these events happened, perhaps eight when the first event happened and 10 at the time of the second.

276. In respect of count 12, JC said when she was in high school, on her 13th or 14th birthday, her mother bought her a white linen skirt and an orange top. After school she put on the skirt and top and went to show MA what she had received for her birthday. Her mother called her for dinner. As she went across the front of the applicant’s front yard the applicant called to her to come over and give him a hug. She said no, she had to go home, her mother was calling her for dinner. He said Auntie Deb (his then wife) had a birthday present for her.

277. JC said she went across. The applicant grabbed her breast. He had grease on his hand and left a greasy handprint on the breast of her shirt. When she arrived home her mother was serving dinner up and she looked at JC and said “What’s that?” JC said “That’s what [the applicant’s] done” and her mother said “Give it here”. She said her mother was in a bit of a fluster serving dinner and her mother went into the laundry and tried to clean the top and she “couldn’t get it out”. So she threw the top away. So on the night of her birthday, JC had only received the top in the morning and her mother had to throw it away and buy her a new one. JC said the “stain” on her top looked like a handprint. She said she was angry that the applicant had ruined her top and she yelled at her mother “That’s what [the applicant] did.” Her mother had to buy her a new top but when she gave JC the new top, her mother did not bring up what the applicant had done.

278. LC, JC’s mother, when asked during her evidence about her daughter’s complaint to her in 2015 or 2016, said:

“A. There was one time when she said that he touched her breast, and she tells me that he left a mark on her shirt, but I don’t recall that.

“Q. You don’t recall that, so that –

A. I don’t recall that.

Q. That was supposedly her birthday, and with the grease mark on her top.

A. Well, yeah, I don’t think it was her actual day of her – day of the birthday, but I think it was about the time. It was a shirt she’d been given as a birthday present.”

288. LC clarified that she was told by JC about the stain on the birthday blouse in 2021 or a few years before the trial. LC said she had no recollection of the incident or the conversation about the stained blouse other than what she was told some years later.

289. LC gave the following evidence:

“Q. And if [JC] had said to you, if she had come home with a grease mark over her breast and she said to you that [the applicant] had done this to me, would that have concerned you?

A. WelI I probably would have thought he brushed against her and not thought anything sinister of it because you didn’t think those things in those days.

Q. No, but if she said to you, ‘[the applicant] did this to me’, and it’s clearly a hand mark on her breast, would that have given you some cause for concern?

A. Well, yes, I’d say so.

Q. And you would have made further investigations in relation to that or asked some further questions?

A. Yes.

Q. But that certainly never went any further, as far as you are concerned?

A. No.”

290. LC said that she did not recall JC making allegations to her about the applicant to which she responded “Well, just stay away from him then”. She said she did not think that was the sort of thing she would have said to her daughter if her daughter was making allegations that she was being touched by the applicant.

291. JC gave evidence she spent all her time trying to avoid the applicant. She said when she was walking past the applicant’s house she would cut across or through the neighbour’s yard to avoid walking past in plain view of the applicant’s house.

292. JC said the applicant came home from work about half an hour after she came home from school. She said the applicant would be in his garage with the garage door open.

293. LC, JC’s mother, said she used to tell JC to not go over to the applicant’s family’s house often, because she spent a lot of time there with the applicant’s wife and the children, and when the weekend came, LC would say to JC to not go to the applicant’s house, because she didn’t want her to be a nuisance to the family. She said she would tell her not to go but it did not stop her, she still went. She said JC never showed any reluctance about going to the applicant’s family’s house, and never gave any indication that she was not happy to be at the applicant’s family’s house.

294. JC agreed she had made a complaint to a Corrections Officer in 2020. Pamela Jones, Senior Correctional Officer, described the complaint by JC, in terms that “The kids would be put in bed in whoever’s home they were at the time, and this guy would come and get them. It was her turn in whatever bedroom they were in at the time.” Ms Jones described how JC gave a demonstration of how she and her friend would get down on the ground to crawl past the applicant’s house. She described how JC crawled around her desk in her office to show how she and her friend tried to get past the applicant’s house.

295. In her evidence about her avoidance of the applicant’s house, JC at no time said she crawled past the applicant’s house.

296. JC said when she was 16 and had moved out of home, one night when she was staying at her parents’ house, she and her mother were sitting on the veranda before bed, and her mother brought up the subject and asked JC what had happened when she was younger. JC told her about the incidents, as she had described in her evidence. JC said her mother said it was “putrid” and a horrible thing to have happened, but there was no point in doing anything about it now, as it was not going to make it not have happened.

297. JC said she had a conversation with her grandmother when she was about 22. Her mother had asked her grandmother to talk to JC about her complaint about the applicant.

298. LC said JC made a complaint to her that the applicant “interfered with her when she was younger” in about 2015 to 2016.

299. JC gave detailed accounts of some incidents, including the involvement and actions of other people, which were either not supported by, or inconsistent with or contradicted by evidence from the other people said to be involved in the incidents. Her account of the event the subject of count 9 and the aftermath involving blood in her underwear and a doctor’s visit, her account of count 1 and its aftermath of punishment of MA, and her account of count 12 and its aftermath, of the destroyed and replaced top, all of which were not supported or contradicted, suggest her accounts were not reliable.

300. Pamela Jones’ evidence of JC demonstrating, by crawling around the office floor, how she acted to avoid walking past the applicant’s home suggests a tendency of JC to exaggerate when giving an account of what she says happened. JC’s detailed account of the circumstances in which her mother elicited her complaint from her when she was 16, was contradicted by JC’s mother. It is difficult to see how JC’s mother could have forgotten all those events that she said she did not recall, that a mother would forget seeing blood in her eight year old daughter’s underwear and taking her to a doctor over it or her daughter coming home with her birthday top ruined by a greasy handprint on her breast so that the top had to be replaced.

301. JC’s description of the event the subject of count 9 is very difficult to believe. Accepting that some child sex offenders can be brazen, and some appear to embrace the danger of discovery, it is very difficult to believe that the applicant would have been so foolhardy as to sexually penetrate the vagina of an eight year old girl while she was walking next to her father and holding her father’s hand, or that when she stopped walking because of the digital penetration her father did not notice anything untoward.

302. The jury may have acquitted the applicant on that count because of the lack of evidence from JC’s deceased father, or because her mother contradicted her evidence about the blood in her underwear and her visit to the doctor the next day, or they may not have believed the complainant’s account of the assault. If the latter, then the jury should have taken that into account when they were considering the complainant’s evidence on the remaining counts.

303. The complainant was not cross-examined on the detail of the alleged actions the subject of count 1, such as the features of the pants the applicant was said to be wearing, and where his body was in relation to the bed and JC when he is said to have put a four year old girl’s hand down his pants. That MA did not mention this incident at which she was said to be present does not support the evidence of JC. JC’s account of MA being punished for having complained about the applicant’s conduct, which was denied by MA and MA’s mother, detracts from the credibility of JC’s detailed account and tends to suggest that the detail has been embellished in an unreliable way.

304. The action described by the complainant the subject of counts 2 and 3 is strange, if it is meant to be a source of sexual gratification for the applicant, although possible. Any doubts about the complainant’s reliability, arising from count 9 and her description of count 1, would have had to operate in respect of the consideration of her evidence on counts 2 and 3.

305. JC’s account of the events of and after count 12, which is not supported by her mother, when one would expect that her mother would recall such an event, gives rise to a doubt about the reliability of JC’s evidence in respect of count 12.

306. However, despite the contradictory evidence which casts doubt on the reliability of JC’s evidence, I consider that there was a basis on which the jury may have distinguished count 9 from the other counts involving JC, that being the absence of evidence from her father. Therefore I cannot say that the verdicts are inconsistent.

Ground 3: unreasonable verdicts

307. Having conducted my own independent assessment of the evidence in relation to counts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, and 12, the quality of the evidence is such that I am of the view that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of those counts. Making full allowance for the advantages enjoyed by the jury in having observed the complainants give evidence, I am of the view there is a significant possibility that an innocent person has been convicted, having regard to the evidence which was inconsistent with and contradicted the evidence of the complainants.

308. There is some evidence which gives rise to a suspicion about conduct by the applicant, but in respect of the evidence relied on by the Crown in support of each of the counts, the jury should have had a reasonable doubt about the evidence of each complainant. I am not persuaded beyond a reasonable doubt of the applicant’s guilt of the offences charged, and nor should the jury had been, upon consideration of the content and substance of the complainants’ evidence.

309. As, in my view, the evidence of each of the complainants could not be accepted, there is not a basis for finding established a tendency on behalf of the accused or a basis for anti-coincidence reasoning in support of proof of the applicant’s guilt of the offences charged.

310. The matters I have referred to above, in relation to ground 2, about the inconsistencies with and contradictions of the evidence of JC are my reasons for finding that the verdicts in relation to those counts which relied on the evidence of JC are unreasonable and unsupported by the evidence to the requisite standard.

311. The balance of the counts relied on the evidence of MA. MA gave evidence that the first occasion on which the applicant assaulted her was when her parents travelled to Singapore, when she was seven or eight years old, and the night before their return when she was at the applicant’s house and in the bath, when she got out of the bath, the applicant wiped her with a towel and then “His hands have slipped from the towel and some fingers have inserted into me, into my vagina.” She said he was kneeling down so his eyes were level with hers and she looked into his eyes “And he had the look of satisfaction in his eyes”. She said the next day when she was driven by the applicant to the airport to meet her parents on their return, she ran up to her parents and was hugging them and her mother said “What’s wrong?” and she turned around and looked at the applicant who gave her a cranky look.

312. DC, the applicant’s ex-wife, gave evidence that MA’s older brother stayed with the applicant’s family when their parents went to Singapore, and she recalled MA’s brother P was at another neighbour’s, but she could not recall where MA was.

313. VB, MA’s mother, said that when she and her husband went to Singapore MA stayed with JC’s family. She agreed that when MA came to greet them at the airport she was emotional, crying and upset and VB asked MA “Did you miss us?” and MA said “Yes”. That incident was not the subject of a count on the indictment. It was not referred to in MA’s police statement made in September 2020. She said it had come to her in flashbacks since she made her statement and particularly when she met with the Crown Prosecutor before the trial.

314. MA’s evidence in respect of the alleged offence the subject of count 4 was that when her parents socialised she would sleep in the applicant’s and his wife’s bedroom. On one occasion she put herself to sleep in the lounge room to avoid the applicant coming into the bedroom and putting his hands down her pants. She said the lounge was situated beside a sliding door and the adults were behind the sliding door and she put herself there to protect herself. She said the applicant came from the other side of the room into the lounge room, told her to roll over and face him and put his hands down her pants. She said she was probably eight or nine years old. She agreed in cross-examination that the other parents playing cards at the dining table were maybe a maximum of two metres away, and that included her parents.

315. MA’s evidence about the conduct the subject of count 5 was that at a Christmas party at a neighbours’, the parents were sitting around a table near the swimming pool. The applicant was sitting at one end of the table, a woman was sitting at the other end of the table, and another woman was sitting close to where the applicant was sitting, probably a metre or two metres away. She said she was swimming so had a swimming costume on. She said the applicant grabbed her as she walked past, put her on his lap, put his hand into her swimming costume and into her vagina. She sat looking directly straight ahead at one of the mothers. She said no one noticed anything. She said she was trying to squirm away and the applicant said “Sit still. You’ve got a bony bum.” She said she was squirming because his fingers were inside her vagina. She said his fingers were inside her vagina for what felt like three minutes but despite the proximity of other people at the table and around, no one noticed.

316. It is difficult to accept that the applicant would be so brazen as to perform such an act in the close proximity of other adults and would draw attention to his conduct by telling the complainant to stop squirming on his lap.

317. MA’s evidence in respect of counts 6, 7, 8 and 10 was that on each occasion the applicant made her suck his penis in his garage in the afternoon with the garage door open and people walking past. She agreed people could see into the garage from the driveway on the footpath. She said of the first occasion she was at about 11 or 12 years old, she was in the garage, she could not recall how the event began, but the applicant turned around and had his erect penis out of his fly and she then had her mouth on his penis but could not recall how it got there. She said on the second such occasion the applicant told her to suck his penis like a straw. She said on the third such occasion, he grabbed her head tightly and forced it down on his penis so it caused her to gag and caused her to bite his penis, to which the applicant told her “Never use your teeth”, “Suck it like a straw”.

318. In respect of count 10 MA said that on this occasion while she was being made to perform oral sex upon the applicant, his wife walked into the garage. She said his back was to the workbench and she was in front of him, leaning over. She said the applicant’s ex-wife came through the laundry into the garage and said to her, “What are you doing here, [MA’s nickname]?” She said the applicant pushed her away as he saw his wife walk in and she, MA, was stumbling. She said she did not reply to the applicant’s wife, just picked up her bag and left.

319. DC, the applicant’s former wife, gave evidence that as a mother with three young children she spent a lot of time in the laundry, which was next to the garage, and her children played out in the backyard. She said the applicant and she usually parked their cars in the garage when they were at home. She said the applicant spent his afternoon in the garage, either calling friends or if he could persuade neighbours or friends to come in for a drink he would talk to them in the garage. She said the garage door was always open when they were at home.

320. She said she went up and down to the laundry all the time. She did not recall a situation where she observed the applicant with MA in the garage, that she had never seen MA performing fellatio on the applicant in the garage.

321. DC said that the local girls did not babysit her children when she and the applicant went out at night because she and the applicant rarely went out but if they did, the applicant’s parents would mind the children. She agreed that JC minded the children in the morning when she went to work, but that was the only recollection she had of local girls babysitting.

322. DC said that MA’s mother would call for MA’s brother AB to come home for dinner. She said VB might send PB or MA over to collect AB, although given the forty year time difference she could not recall particular occasions when that occurred.

323. MA’s evidence in respect of count 11 was that four times she said the applicant put his hands down her pants, and she said he said to her “I’m going to have sex with you soon” but she gave no evidence of digital penetration, which was the allegation the subject of count 11.

324. The Crown submitted that the jury could have drawn the inference of digital penetration having occurred from MA’s evidence in another part of her evidence:

“Q. The other thing in relation to the placing fingers inside you – you said that this would happen on almost every occasion you went to [the applicant’s] home for the adult card nights?

A. It felt like it, yes.”

325. The Crown also submitted that the tendency evidence would have some impact in this regard.

326. MA did not give evidence that on the occasion the subject of count 11 the applicant digitally penetrated her vagina. There was not evidence sufficient to establish the elements of that offence.

325. The Crown relied on evidence as establishing a tendency on the part of the applicant. There was evidence from DG, a friend of MA, who gave evidence of a memory of being sent to bed at the applicant’s home while the parents were socialising and the applicant came into the room and stood there. LW, a friend of MA’s, gave evidence of babysitting with MA at the applicant’s home and when the applicant and his wife came home the applicant came into the bedroom where she and MA were pretending to be asleep and lifted the sheet which was covering her. She also gave evidence that when she and MA were about 14 MA told her that the applicant had forced her to have oral sex. LW said that when she was an adult and working in a position where she was a “mandatory reporter” of child sexual abuse, she asked MA to tell her the applicant’s name so she could report his conduct but MA said she did not want to talk about it. LW said there were two occasions that she asked MA about the applicant and MA did not want to talk about it.

326. MC, JC’s brother, gave evidence that on one occasion when the families were gathered at the applicant’s home he went into the applicant’s bedroom and found the applicant in bed with MA and JC on either side of him. He said the applicant said to him that he was “having some girl time at the moment and [I’ll] be out there to spend some time with the boys later.” MC said he was about nine or 10 at the time of this incident. He said that JC told him in about 2014 that the applicant used to touch her and MA.

327. The combined effect of that evidence raises some suspicions about the applicant’s conduct, but since in my view the evidence of the complainants cannot be accepted beyond reasonable doubt, the evidence relied on by the Crown as establishing a tendency of the applicant cannot support the complainants’ evidence to prove the counts on the indictment.

328. Also to be taken into account are the applicant’s unequivocal denials in the two lengthy conversations with MA and in his interview with police. There is no basis for not believing them.

329. Taking into account all of those matters, and as I stated above, I am of the view that the guilty verdicts on all the counts except count 9 were unreasonable.

330. Therefore, I would uphold ground 3. I would propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal on ground 3.

3. Quash the convictions on counts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 and enter an order of acquittal in respect of each count.

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Decision last updated: 20 December 2024